Sipekne'katik First Nation sues Nova Scotia over restrictions on buying Mi'kmaw lobster

Sipekne'katik First Nation is suing the Nova Scotia government over regulations restricting the purchase of seafood harvested outside federal or provincial regulations, claiming the rules infringe on treaty rights.

The Mi'kmaw band launched its self-regulated lobster fishery in September 2020. Their treaty right to hunt, fish and gather in pursuit of a "moderate livelihood" was affirmed in 1999 by the Supreme Court of Canada decision in the case of Mi'kmaw fisher Donald Marshall Jr., of Membertou First Nation. 

But discussions with the federal government over how treaty rights would be adopted into Canadian law have been fruitless, Mi'kmaw officials say.

"I think we've exhausted all other avenues," said Sipekne'katik Chief Mike Sack.

"If the province looked at the treaties, [the] Constitution and such, they would see that they have the authority to deal with us and to issue those licences ... so the ownership is on them. They're holding our people back and they need to be held accountable." 

According to the Fish Buyers' Licensing and Enforcement Regulations, under the N.S. Fisheries and Coastal Resources Act, it is prohibited for anyone in Nova Scotia to buy fish from "a person who does not hold a valid commercial fishing licence issued by Fisheries and Oceans Canada" or buy fish caught outside federal or provincial regulations relating to size, season and quota. 

The court action, filed Feb. 1 against the Attorney General of Nova Scotia, seeks declarations from the province that the purchasing restrictions infringe on treaty rights without justification, and so don't apply to seafood being sold by Sipe'knekatik members. 

Sack said discussions with the federal government have "gone nowhere," and that some of the band's frustration came from a lack of action from the Nova Scotia government. He said he thinks addressing the purchasing regulations would have been an easy way for the province to make progress on the matter.

"I'm not sure why they held out on it but ... just hitting the delete button a couple of times would have changed a whole lot," Sack said.

"It goes back to the province not wanting to work with the Mi'kmaq at all. We tried on many different avenues and we didn't get anywhere."

The province is expected to respond in court to the suit by Feb. 15.

In a news conference Wednesday, Premier Stephen McNeil said the province has a "different point of view" on its responsibilities in the matter. 

"We've said all along that [a] buyer's licence is related to a fishery that is described in the Fisheries Act laid out by the national government," McNeil said.

"If Sipekne'katik wants to challenge that in court, we'll respond." 

Return to court 'disheartening'

Mi'kmaw lawyer James Michael, who is representing the band in the case, said the province has had over two decades to amend their regulations in line with the Marshall decision.

"It's disheartening that we have to go to court to continue to enforce or protect our people and our rights in 2021," he said.

"What does that say about the whole court process and about the province respecting the rule of law?"

Michael said both levels of government share jurisdiction with the Mi'kmaq when it comes to Sipekne'katik's fishery, so either can act to avoid a costly court case. 

"Once the lobster hits the shore, the federal jurisdiction sort of ends and the province's kicks in, but certainly Canada has a tremendous amount of influence that they could come to bear on the province." 

Sipekne'katik member and fishing advocate Cheryl Maloney, who called for the province to let Nova Scotians buy Mi'kmaw lobster legally by selling it outside the legislature in October 2020, said she's got mixed emotions about the lawsuit. 

"It's a shame that it's come to this, but I'm quite proud of the direction the community has taken," she said. 

"Our members have been consistent in fighting for our rights since the time the treaties were signed. So it's good news, but it's a shame."

Maloney said it's especially unfortunate now, during a pandemic, that the band will be spending money to go back to court and argue their rights with government.

"The government of the day should've done the right thing back in 1999 or 2000," she said.

"But for [the federal] government and the province of Nova Scotia to continue for 21 years, denying [the Marshall decision], finding excuses or passing that jurisdictional hot potato back and forth — that's what the problem is in this country for Indigenous peoples."