Mi'kmaw senator says he has a 'win-win' solution to the N.S. fishing dispute

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P.E.I. Sen. Brian Francis says he's proud of his fellow Mi'kmaw people in Nova Scotia for setting up their own rights-based fishery — and it's time for the federal government to step up to the plate and help them manage it. 

Francis and two other Mi'kmaw parliamentarians — Nova Scotia Liberal MP Jaime Battiste and Independent Sen. Daniel Christmas — have written a letter to federal ministers and Indigenous leaders calling on them to establish an Atlantic First Nations Fisheries Authority. 

Fisheries and Oceans Minister Bernadette Jordan said Thursday the government is open to the idea. 

The three parliamentarians say the regulatory body would allow First Nations in Atlantic Canada to work directly with the federal government to set up and manage rights-based fisheries, instead of taking disputes to the Department of Fisheries and Oceans.

Furthermore, they say it would help bring a much-needed resolution to the 1999 Supreme Court ruling known as the Marshall decision, which upheld the Mi'kmaw treaty right to earn a "moderate livelihood" from fishing, but did not define what that means or how it works. 

The issue has come to the forefront after the Sipekne'katik First Nation launched its own Mi'kmaq-regulated lobster fishery in St. Marys Bay, N.S.

In response, hundreds of non-Indigenous commercial fishermen hauled up Mi'kmaw lobster traps, cut their lines and attempted to block boats from leaving the harbour. 

Francis spoke to As It Happens host Carol Off about what he believes could be a peaceful resolution to the fisheries dispute. Here is part of their conversation. 

Senator Francis, as you know all too well, the situation is very tense in the Maritime lobster fishing community. What makes you think you can find some way to solve that?

Senator Christmas, Member of Parliament Battiste and I are the only Mi'kmaw parliamentarians in the history of this country. And really, this is a fact that is not lost on us. We know we're in a position [that is] very privileged. And I think we have a responsibility to ensure that the interests of our people and communities do not continue to be disregarded by the Crown.

So we got together and looked at, you know, possible solutions that would help given the current situation.

And what are you proposing?

We had meetings last Friday with various stakeholders, including Ministers Jordan and [Crown-Indigenous Relations Minister Carolyn] Bennett, and we focused on a negotiated solution that recognizes treaty rights and includes a significant and meaningful role for Mi'kmaw-management of our own fishery.

And we thought this could occur [with] a co-managed fishing system, which we had discussed in terms of a Canada-Mi'kmaw fishing authority. And we look at it as an option put forward by us as parliamentarians for First Nations and the Crown to take a look at and see if they think it's something that is worth proceeding with.

And what would be the connection with those [fishermen] who are non-Indigenous? Would they be part of this plan at all?

They will be included as needed. But let's be clear that the Mi'kmaw people have a treaty right to the fishery, and it hasn't been going very well for the last 21 years. And, you know, First Nations will and can not wait any longer for their constitutional and treaty rights to be fully recognized and implemented. And I don't think we should be expected to wait any longer.

So I think the time has come now for the Crown, in the terms of true and meaningful reconciliation, to take this to the next step where it should be and to work with the Mi'kmaw people in Atlantic Canada to develop a moderate livelihood fishery under the treaty that we have.

When you refer to 21 years, you are referring to what's known as the Marshall decision. That was Donald Marshall Jr., a Mi'kmaw fisherman, who went all the way to the Supreme Court, where it was ruled that Indigenous people have a right, a treaty right, to earn a "moderate livelihood." But then the court also said just weeks later that it would be something that should be managed by the federal government. That never happened, right?

Absolutely never happened, no.

And that's the disappointing part is the 21 years of waiting with growing populations, communities, looking to implement what is rightfully theirs under the treaty and having that not happen. And now the time has come for all parties to come to the table and make it happen.

Why has it been so difficult? Why hasn't the Crown taken that responsibility before?

That's a good question to ask the Crown, actually. Because we always thought it should happen right away and we worked for years to try and make it happen. But it just didn't happen for different reasons.

We spoke with a lawyer for [the] Mi'kmaw a few weeks ago who said that their the issue is not with the commercial fishermen, the other fishermen; it's with the federal government.That they decided to manage their own fishery, to give their own tags out, license their own people, because they were working in a vacuum in the absence of the federal government. Do you think you have an idea, a formula, that will work for them and also be accepted by the commercial fishermen?

We think we do with the Canada-Mi'kmaw First Nations Fishing Authority. We think it's an option that, you know, if parties come to the table, there's a willingness on the part of the Crown to go the extra step and implement our treaty rights, which they should have done 21 years ago, we think that it will work.

It's not that every First Nation will to come to the table. That's up to them. But we think if there's a collective moving forward and people see the positive outcomes that this fishing authority could have in terms of a moderate livelihood and so on — the sustainability, the transparency of the fishery going forward, conservation as well — we think that it could be a win-win for everyone.

You know that, of course, the non-Indigenous fishermen in the Maritimes in the area that we're talking about here, they've been very angry about watching Indigenous boats go out to do this lobster harvesting. And do you think that they will be satisfied, [that] they will live with a new body and different rules set up for Indigenous fishermen?

When you look at a right versus a privilege, for one thing, you have to look at what that is. And the Mi'kmaw people have the right to the fishery.

But also I think it's important that people are educated. And when I look at the history of our Indigenous people in Canada, I don't think Canada has been kind in terms of how it's told history. And I think there's people that maybe haven't got a full understanding of how we got here, the Indigenous people. I think if people understand it through education, they'd be better prepared to look at what we're trying to do and why we're trying to do it.

But they argue back that they have a right to make a living as well, and that their concerns are that there will be overfishing, that it's a resource that has to be managed. What do you say to them?

There's no conservation issues right now in terms of the fishery. And I think if if both parties come together to work, and our rights to the fishery is respected, I think that everyone can win in this situation. 

As a former chief and someone who's been around the fisheries for a long time, what's it like for you to see the Indigenous fishermen, I guess, putting their foot down and saying 21 years after the Marshall decision, it's time to get this right?

I fully support them. And it is time to get it right now. And, you know, I, as a former First Nation leader for a number of years, it was difficult with the Marshall agreements to try and fight for people's livelihoods. 

Those agreements never kept pace with the growing population. They never provided the amount of money that was required to sustain a community in terms of the fishery.

And I think now the time has come, and I'm proud of our people for taking a stance.

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