Mi'kmaw negotiator advocates for reduction in commercial catches to bolster treaty fishery

The debate over how to implement a Mi'kmaw right to a moderate livelihood fishery in Atlantic Canada got more pointed this week as Ottawa's latest effort to voluntarily buy out commercial licences hasn't delivered results.

A top Mi'kmaw negotiator insisted commercial catches should be reduced anyway to ensure the treaty right is realized, while the president of a commercial fishermen's association responded that enough has been done and the failure rests with Ottawa and First Nation leaders.

The issue flared as a Canadian Senate committee studied implementation of moderate livelihood.

"You heard from the chiefs, the buy-back program hasn't been successful. So maybe at this point, Canada and DFO have to be more aggressive in taking back access for the Mi'kmaw people and Indigenous people," Janice Maloney told the committee.

Maloney is executive director of the Mi'kmaw Rights Initiative, which negotiates on behalf of the Assembly of Nova Scotia Mi'kmaw Chiefs.

Maloney was appearing with Chief Wilbert Marshall of the Potlotek Band in Cape Breton and Chief Allan Polchies Jr. of the St. Mary's Band in Fredericton.

Colin Sproul, president of the Unified Fisheries Conservation Alliances, challenged the demand. Sproul represents 1,900 commercial fishermen.

"It's clearly unfair and un-Canadian to repossess access to the fishery from coastal communities without any consultation or compensation," Sproul said.

Voluntary buy-back program revived

In the 1999 Marshall decisions, the Supreme Court of Canada confirmed Indigenous people have a treaty right to earn a moderate living from fisheries.

However, it did not define what that meant and said governments have the right to regulate the fishery for conservation and other purposes.

In the aftermath, the federal government spent hundreds of millions of dollars to integrate Mi'kmaw bands into the commercial fishery mostly through buying back commercial licences — a process known as one in/one out and willing buyer/willing seller.

Last year, Ottawa revived the licence buy-back program to implement moderate livelihood in the Maritimes lobster fishery without increasing fishing effort.

So far there has been very little uptake from commercial fleets.

Maloney said if conservation is a concern, Mi'kmaw moderate livelihood fishermen get priority.

"It's time to take back some of the access from the commercial fisheries and provide it to the rights-based fishery. The commercial access is a privilege-based fishery," Maloney told Senators Tuesday.

As an example, Maloney said cutting five to 10 traps per commercial lobster licence could suffice.

"We're not saying take back all the fishery," Maloney said.

How much is enough?

"How much access is enough to fulfil the right to pursue a moderate livelihood to First Nations?" said Sproul.

"First Nations fishers who are being wrongly excluded from their right to pursue a moderate livelihood need to look inward at their own leadership and ask them why, given the huge amounts of access that First Nations possess, that they're not allowed to pursue the right to a moderate livelihood."

He said it's too early to write off the current licence buy-back program.

"It's just been instituted over the winter. And I think that they need time for a season to be completed and for people to assess whether this is the the winter that they choose to retire or not and to approach the government through the program and to get a chance to arrive at a fair value.

"And I also think that undoubtedly the government's entry into the market as a major purchaser of fisheries access will drive up the price somewhat. And the government needs to be prepared to pay a fair market value for the actions."

Future of willing seller/willing buyer

The Department of Fisheries and Oceans walked away from the voluntary licence buy-back program in the lucrative baby eel, or elver, fishery this year.

It told licence holders they wanted too much to get out, cancelled a second round of negotiations and threatened to impose a 14 per cent quota cut and gave it to Mi'kmaw bands seeking access to the elver fishery.

DFO says this is a temporary arrangement and it will continue to negotiate with commercial licence holders.

The department has reached "mutual understandings" with several Mi'kmaw bands to carry out moderate livelihood fisheries. The Nova Scotia Assembly of Mi'kmaw Chiefs says these are not signed agreements.