Sipekne'katik First Nation halts talks with Ottawa over fishing rights

The Sipekne'katik First Nation has halted discussions with the federal Department of Fisheries and Oceans after suggestions put forward by the Nova Scotia band were rejected in regard to the implementation of its treaty right to fish to earn a moderate livelihood, said Chief Michael Sack.

Sipekne'katik began talks with Ottawa in October to discuss how a moderate livelihood fishery should be defined, and whether and how it should be regulated by the Canadian government. 

"Our discussions are now at a critical impasse as to the exercise of our treaty right to harvest and sell fish, which must be based on our treaty right," Sack said in a statement sent to Fisheries Minister Bernadette Jordan on Thursday.

"To do otherwise would be contrary to our constitutional rights' very nature and our lawful ability to fish."

Sipekne'katik fishers have been operating out of the Saulnierville wharf on St. Marys Bay since Sept. 17, when the band launched its moderate livelihood fishery. 

The band said it was exercising a Mi'kmaw treaty right to fish for a moderate living recognized by the Supreme Court of Canada 21 years ago.

However, the phrase "moderate livelihood" was never defined.

Sack said the band stated that during discussions with DFO that an agreement must be based on the treaty right to harvest and sell fish. He also said conservation efforts would be a priority.

"We were always very clear that we weren't going to negotiate our treaty rights and we were going to establish our own fishery outside of the commercial one," Sack said in an interview CBC Radio's Mainstreet Thursday.

However, Sack said Sipekne'katik received a draft version of a memorandum of understanding from Jordan's office in late November, which suggested his community fish within the commercial season of Lobster Fishing Area 34, which starts the last Monday in November and ends in May.

"We're not trying to be difficult, but that doesn't work for us because of the size of our vessels and the gear that our people have," Sack told CBC News.

He said all suggestions put to the department by the band were rejected. The minister's office did not respond to a request for comment.

Sack said he was disappointed when the department also recommended terms and conditions derived from the federal Fisheries Act — the same act that regulates commercial fishery licences — rather than section 35 of the Constitution Act, which recognizes and affirms Indigenous treaty rights.

He added that DFO offered just 10 moderate livelihood licences, which allow 50 traps each — a total of 500 traps for the community of 2,800 people.

"Nobody can determine the needs of our community but us," said Sack.

The chief said he is willing to work with DFO on a moderate livelihood fishery, but his community wants to regulate it.

An amendment to the first Marshall decision said Ottawa can regulate Mi'kmaw fisheries if there are justified concerns about conservation and First Nations are consulted.

Sack said he rejects that amendment, otherwise known as Marshall 2.

Colin Sproul, the president of the Bay of Fundy Inshore Fishermen's Association, said he's "saddened" that negotiations have broken down between DFO and Sipekne'katik First Nation.

"I think what it means for commercial fishermen is more uncertainty at a time when so much has been thrown up in the air for them because of the minister's actions, and it's also uncertainty for Chief Sack's people who deserve to be able to make a living from the fishery as well," Sproul told CBC News on Thursday.

However, Sproul agreed with DFO's suggestion that Sipekne'katik fishers should work within the commercial season.

"It is what's clearly laid out in the terms of Marshall decision and Marshall 2 decision," he said.

Sproul encouraged Sipekne'katik to resume discussions with DFO, while also allowing commercial fishers into the conversation.

Sack said if the department considers a fishery agreement based on the treaty right to harvest and sell fish, the band would reconsider discussions.

Jordan's office sent out a response stating the department is reviewing Sack's concerns.

"Reconciliation is not a linear or simple process, but it is a Canadian imperative. Where challenges arise, we will continue to address them with our partners, nation-to-nation," the statement said.