While courts have affirmed the First Nations’ right to fish, government inaction has caused confusion and conflict—the future is unclear, but there’s no going back

T

he wharf in Saulnierville, in Digby County, had a temporary and unplanned makeover.

Stacks of lobster traps formed a makeshift barrier decorated with signs calling on the federal government to conserve and protect lobster stocks. Commercial fishers created the wall to oppose crews from Sipekne’katik First Nation.

Commercial fishery spokespeople say they want the Department of Fisheries and Oceans (DFO) to impose rules treating all fishers the same, specifically to stop First Nations people from fishing commercially once the season ends for other fishers. 

“This is about conserving the fishery for everyone, both Indigenous and non-Indigenous fishermen,” Bernie Berry, president of the Coldwater Lobster Association, says in a press release. “Unless there is one set of rules driven by conservation of the fishery, Canada’s fishery will be destroyed. According to the Department of Fisheries and Oceans’ data, the commercial landings in St. Mary’s dropped from 1,720 to 650 metric tonnes since 2017. That is nearly a 65% drop in commercial landings for lobster in three years. It is directly related to the massive increase in the illegal out of season fishery during that time.”

Those fears are baseless, says Indigenous law scholar Constance MacIntosh in an interview with Dal News. “The Mi’kmaq fishery is closely regulated by Mi’kmaq First Nations and they create reasonable limits on catches,” she explains. “With the current one, I think it’s about 50 traps a fisher, with a very limited number of licences. They have their own systems for enforcement. It’s by no means a free for all.” 

In 1999, the Supreme Court of Canada upheld Indigenous peoples’ treaty right to a “moderate livelihood” through fishing when it delivered the Marshall Decision

However, the federal government won’t define a “moderate livelihood,” making it subject to many interpretations. Tired of waiting for the government to intervene, First Nations fishers decided to exercise their treaty rights, issuing their own fishing licences.

It’s still an unresolved issue 21 years later, escalating a long-standing dispute and mounting tensions between the two groups.

“Minister [Bernadette Jordan] failed to do anything… There is not as much right for the minister to intervene any longer because conservation isn’t an issue,” says Cheryl Maloney, consultation director for Sipekne’katik First Nation. “Her powers are not automatic… The courts have strengthened this self-governance, legal rights, title rights, treaty rights of Indigenous peoples of our country.”

Cheryl Maloney. Photo: April Maloney

The Sipekne’katik members buy their boats, learn how to fish, and buy traps and gear. Maloney believes this provides them a self-governance and entrepreneurship model that fits their needs. “It’s humble, honest, and it’s the integrity of character in the approach that our members and our communities are trying to take,” Maloney adds. “We’re tired of Ottawa coming in and throwing money at solutions that don’t work for us.”

Sherry Pictou is an assistant law professor at Dalhousie University, specializing in First Nations land and water issues. She emphasizes that history plays a big role in this dispute.

“This has been history repeating itself because there were opportunities missed in those early days back in the early 2000s,” she says. “For people of my generation and older, there was a horrific backlash to those initial court decisions… The government, DFO, and the non-Native commercial fishermen all ganged up on this right.”

Rather than developing a comprehensive policy, government tried to negotiate agreements band by band. “Although they call them communal fisheries, they were assimilated into the status quo,” she adds.

This dispute shines a light on larger issues: corporatization and privatization.

“Racism is intersecting with greed,” Pictou says. “It’s really hard to look at one without the other… Racism comes out unfortunately to protect a certain section of society and their rights to the resources. That is what’s hard to take at times.”

Sherry Pictou

Sexism also rears its head. In the First Nations fishery, women buck the commercial norm. During this dispute, there have been many reports of commercial fishers and their supporters making racist and sexist comments.

“We had to learn the law; use it to protect us and change it,” Maloney says. “Hundreds of years of laws used to kill us, destroy us, steal our lands; it’s all there in the history and evidence of Canada, Nova Scotia, and Mi’kmaq territory. Anything beyond the law is survival of a nation, people, language, right to food, and water security. These are huge basic fundamental rights that other Canadians take for granted.”

The double standard dividing the commercial and First Nations fishers frustrates Maloney. 

“We protest and Canada pulled the rule of law,” she says. “When they’re protesting and breaking laws not just pushing and asserting rights but breaking laws, the rule of law doesn’t apply to them. There’s discrimination against our members and services. Business services around Nova Scotia are now refusing to give First Nations fuel, bait, accommodations, and hotels… The rule of law is not applied equally to us in this country.” Maloney calls on Premier McNeil and the province to uphold laws to counter discrimination. Failing to do so will set up more demonstrations and conflicts.

She would also like to see is a change to the provincial Fisheries Buyers License. “It prohibits the buying of Mi’kmaq lobster,” she says. “Mi’kmaq lobster is a constitutionally protected right so if they don’t change the laws, they’ll be unconstitutional. We’re hoping and waiting for the premier to come up with an amendment to that section of the Act. All they need to do is say they are allowed to buy from Mi’kmaw livelihood fishers.”

Photo: April Maloney

Pictou points to improving understanding of treaty rights and obligations as a good step.

“I think there is still room for actual social change because these initiatives are sometimes great in educating, but they’ve also become a little tokenistic,” she says. “We have to find room to have hard discussions… One of [our] responsibilities is to ensure the integrity of the environment is not compromised and is there for several generations… I would love to see a new treaty or renewed treaty relationship not just with government, not just with corporations, but how do we breathe life into that saying that ‘we are all treaty people’? By reclaiming this notion of sustainability.”

As the fight continues, the Sipekne’katik First Nations community is united.

“What this conflict does is that it creates strength, unity, and pride in our community and people because we know the laws and treaties are on our side,” Maloney says. “We know the answers are protecting us, and you can’t turn it back. Pandora’s Box is open for livelihood fishing and there’s no way they can push us back the way they did 20, 50, 100, or 280 years ago. There is a hardship but we’re used to it. We’re a tough bunch and we’re used to fighting. “

Backgrounder: The Marshall Decisions

In 1999, The Supreme Court of Canada acquitted Donald Marshall Jr. for violating three federal fishery regulations, including selling eels without a licence, using illegal nets, and fishing out of season. In the verdict, the Supreme Court of Canada affirmed that treaties from 1760 and 1761 between the British and Mi’kmaq were valid, giving the Mi’kmaq the right to fish as a “moderate livelihood.”

The second decision extended Native treaty rights, which are still subject to Canadian laws. It addressed the relationship between conservation and treaty rights.

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