Sipekne'katik claims 'significant progress' in talks with Ottawa over controversial N.S. lobster fishery

The First Nation at the centre of a highly contentious out-of-season lobster fishery in southwest Nova Scotia says mediation with the federal government is bearing fruit, with lengthy meetings between both sides leading to the first "meaningful dialogue" in 25 years.

The comments from the lawyer for Sipekne'katik First Nation came in a letter this week to a Nova Scotia Supreme Court judge that asked that litigation launched by the band against the federal government in 2021 be paused for another six months as negotiations continue.

The band has claimed its members have a treaty right to earn a "moderate livelihood" by fishing for lobster outside of federal regulations. Many commercial fishermen are opposed to Sipekne'katik's fishery, citing concerns over lobster stocks, and there's been major tensions in the area.

The band's lawyer, Ronald Pink, told the court on Thursday that talks between the band and the federal government have been "incredibly successful," and he believes that with more time they will bring about an "implementable solution."

"This is a process that is trying to resolve historical, in our view, historical wrongs and the deprivation of privileges that we have not had the advantage of," Pink said.

"We're doing our best, and you don't turn history around on a dime. And this is a huge problem that we're trying to resolve and we believe we can resolve it."

Justice John Keith noted during the hearing the "refreshing exchange of dialogue." He refused to order another pause to the litigation; however, he set dates for discovery in June, where prospective witnesses will be questioned.

Sipekne'katik launched its summer and fall fishery in St. Marys Bay in 2020. It runs outside of the commercial season in the area, which only begins in late November.

The band has cited the 1999 Supreme Court of Canada decision that found Donald Marshall Jr. had the right to earn a moderate livelihood by selling eels he had caught.

The band filed a lawsuit three years ago, seeking a declaration from the court that the federal Fisheries Act and regulations infringe on the treaty right to fish lobster for a moderate livelihood, including the prohibition on catching and holding lobsters without a licence and fishing outside of a commercial season.

Defining the treaty right

In court on Thursday, Keith pressed the lawyers for both the band and the federal government about whether each side was working toward a "clearly defined" treaty right and a workable solution that can be "measured and effectively implemented on a day-to-day basis."

He also asked Gwen MacIsaac, the lawyer for the attorney general of Canada, whether the federal government was also representing the interests of non-Indigenous people in the negotiations.

"I think it would be an overstatement to say that the Crown represents the interests of non-Indigenous groups," MacIsaac replied.

The Unified Fisheries Conservation Alliance, which says it represents more than 4,500 licence holders and fishery businesses in the Maritimes, is an intervenor in the case and has argued Sipekne'katik's fishery is illegal. 

Alliance president Colin Sproul welcomed the judge's decision to keep the litigation moving ahead, but noted MacIsaac's comments as he spoke with reporters outside the courtroom.

"The most truthful statement made in there today, and it was shocking to us, is that Canada does not represent the interests of non-Indigenous fishermen," he said. 

"I think that should be shocking to all Maritimers to hear that come from the attorney general of Canada's representative."

17 meetings

A trial was due to begin next May. But earlier this year, Keith paused the litigation after both Sipekne'katik and the federal government asked for time to try to negotiate a resolution instead of heading to trial.

In this week's letter to the court, Pink said representatives from the two sides have met 17 times since June, with meetings often lasting between six and seven hours.

The relationship between Sipekne'katik and the federal government has not been "healthy" since the Marshall decision, the letter said, but the meetings are leading to "significant progress." 

"The progress made to date and moving forward from our 25 years of impasse is immeasurable, and thanks to the commitment of both parties," the letter said.

In court, Pink noted in particular the role of Doug Wentzell, the regional director for the Maritimes for the Department of Fisheries and Oceans, and Brian Dorey, Sipekne'katik's director of operations. He said their relationship is "simply profound."

The band and the federal government said they would "engage" with the Unified Fisheries Conservation Alliance before cementing an agreement, but Keith noted the group does not have a veto.

The alliance has been heavily opposed to the Sipekne'katik fishery. In August, it sued the band and its chief, Michelle Glasgow, and wants a judge to declare the fishery unlawful.

The lawsuit claims lobster stocks in St. Marys Bay have been hurt, forcing 30 licensed commercial fishermen to abandon the area, harming the incomes of those that remain and leading to the closure of a lobster processing business in the area.