Fisheries officers will enforce the rules if Mi'kmaq fish out of season, says minister

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Anyone caught harvesting lobster outside the commercial fishing season this year will have to contend with fisheries officers, says federal Fisheries Minister Bernadette Jordan.

The minister was referring to Mi'kmaw chiefs in Nova Scotia who have uniformly rejected the federal government's mandate that all moderate livelihood fisheries must take place within the commercial season.

Last fall, the Sipekne'katik First Nation launched its own self-regulated lobster fishery outside the federal fishing season, citing their treaty right to fish for a "moderate livelihood," which was  upheld by the Supreme Court of Canada's 1999 Marshall decision. 

The move sparked a backlash from commercial fishers, some of whom violently stormed facilities where the Mi'kmaq were storing their catches, destroying lobster and equipment.

The Mi'kmaw chiefs say they intend to defy the federal government and fish out of season again this year. They say the federal mandate was imposed without adequate consultation or scientific justification.

Here is part of Jordan's conversation with As It Happens host Carol Off. 

I'm sure you've heard, as we've heard, from Mi'kmaw communities that they are not going to go along with your plan. They flat out refused to do so. So is it essentially dead on arrival?

We will, you know, be enforcing the Fisheries Act this year.

But we want to make sure that we're working with First Nations communities to develop fishing plans that they need in order to go out to fish for a moderate livelihood.

What happens, given that the Mi'kmaw fishermen are not going to go along with this plan to fish only within the commercial season. What will you do about that?

Our fisheries officers, the C and P [conservation and protection] officers  will be on the water whenever the First Nations decide they want to go out.

We are hearing that they could go out as early as next week, which is about two months ahead of … the regular season. Fisheries officers will be there to enforce the Fisheries Act, which is what they do for everybody. That is their job. And they will be doing that.

Will they be arresting people?

That's going to depend on them. I don't tell the fisheries officers how to do their jobs. There's a number of different measures that they could be taking. 

Will they be seizing boats and equipment?

That will be up to the fisheries officers to determine what the best approach is. Of course, we always take a measured approach. We want to make sure that we don't have the same type of situation that we had last year in the fall where we had, you know, a lot of intimidation, a lot of stand-offs. We want this to be a safe and orderly season, as well as a well-regulated one.

If fisheries officers are going to confront the Indigenous fishermen and lobster boats, then it sounds like something that may escalate the situation rather than diffusing it.

The No. 1 priority for C and P is to keep it to keep people safe — and that is to keep, you know, harvesters safe that are the non-Indigenous harvesters as well as Indigenous harvesters. That is their No. 1 priority, and they will make sure that they are doing everything they can to de-escalate situation[s].

So the fisheries officers, their job is to … not allow those Indigenous fishermen to go out with their lobster boats?

Their job is to uphold the Fisheries Act for all harvesters.

And that means they'll stop them?

They will take an approach that is best for them. I mean, these are people who work in these communities. They're from the areas that are impacted, they know the people involved, and … there's a number of different measures they could take. You know, there's making sure that they're talking to people, making sure that people understand what the situation is, making sure that, you know, people who do go out stay safe.

There is the possibility of seizing traps. There's a number of different measures that could be taken. And, you know, respecting the C and P officers and the job that they have to do is something that I think is going to be critically important.

You said … that these plans are representative of the conversations you've had with your First Nations partners. It doesn't sound as though they have agreed to this, then.

I think it's important to remember that there are 35 bands that are impacted by the Marshall decision. You know, what we have put in place are things that we have heard from the conversations that we've had over the last eight months with First Nations communities. The question whether or not fishing can occur outside of an existing season was discussed frequently throughout this period.

You said it was discussed. Was it agreed upon?

There are … 35 different bands within the Marshall decision, and there's been a lot of discussions around, you know, what the best path forward is. What we're putting in place is very flexible. This is something that we heard about. It allows for nations to sell their catch, their moderate livelihood catch. It's up to the communities to develop the fishing plan.

There's so much to a fishery, a fishing plan, outside of the season. And we've addressed so many of the things that we've heard about from First Nations.

But last week we heard the Nova Scotia Mi'kmaw chiefs in unison reacted that they were not going to go along with this. They said that the terms required were imposed upon them without adequate consultation or scientific justification. What do you say to that?

The government has to have a clear plan in place. That is what we are putting forward for this year. We need to make sure that we are not seeing the same type of challenges that we saw last year on the water or on land. We want to make sure that the fishery is sustainable for everyone for generations to come. And we need to make sure that we're doing this in a regulated way.

If it was one or two bands that were going out with a few traps, that's very different than what we're hearing. You know, with 35 bands who … may want to exercise a moderate livelihood fishery, we have to look at the scalability of this. And DFO's primary responsibility is to make sure the stocks are sustainable.

You recognized the treaty rights of First Nations to do that fishing that's come out of the Marshall decision of the Supreme Court. But to amend or limit treaty rights, do you not have to have formal consultations in order to do that?

We absolutely recognize that the First Nations have an affirmed right. But the Supreme Court also did state that the government of Canada can regulate fishing with regards to conservation purposes.

And that is one of the things we have to be very, very cognizant of is that we have to be making sure that the stocks are sustainable for the long term.

[Sipekne'katik First Nation Chief Mike Sack told As It Happens last week] that their moderate livelihood fishery, given how small it is, is not going to have such a big [environmental] impact. What evidence do you have that it is?

Chief Sack, first of all, represents one band. He represents Sipekne'katik. And he walked away from the table during the negotiation process. We would welcome him back to have these conversations.

And with regards to the science, I mean, we saw moderate livelihood fishing plans that had, you know, less than a thousand traps attached to them. But when the traps went out, there were over 3,000 traps put out in a small area that is not able to sustain that.

That is something that we have to make sure that we're addressing. So this year, the plan is to keep the fishing in season so that we can continue to work to those long-term negotiated agreements.

So just finally, just to clarify this — you're saying this is for this year, but you are still pursuing a rights reconciliation agreement?

That's right. This is what we've put in place for this year as we move toward a longer-term negotiated agreement.

Written by Sheena Goodyear with files from CBC Nova Scotia. Interview produced by Chris Harbord. Q&A has been edited for length and clarity.