National Post (National Edition)
How Ottawa failed both sides in N.S. fishery dispute
DEFINITION OF `MODERATE LIVELIHOOD' REMAINS ELUSIVE
Tensions b e tween non-Indigenous fishermen and Mi'kmaq fishermen reached an apex last weekend when a Mi'kmaq lobster pound was set ablaze in Middle West Pubnico, N.S. The growing violence prompted an official condemnation from Liberal cabinet ministers Monday — more than a month after conflict broke out. Tensions across southwest Nova Scotia prompted the Indigenous community at the heart of the dispute to pull its traps from the waters, with the chief claiming his people have been blacklisted.
To understand the struggle playing out in the southwest of the province, one has to look to the past. In 1999, the Supreme Court of Canada recognized that the Mi'kmaq have a constitutionally protected right to fish for a moderate livelihood. This decision came after authorities charged Donald Marshall Jr. — a Mi'kmaq man who spent 11 years in prison for a murder he did not commit — for illegally catching and selling eel without a licence from the Department of Fisheries and Oceans. Marshall admitted he caught and sold 463 pounds of eel to support him and his wife, which he argued was his treaty right.
The 1760 Peace and Friendship Treaty, a majority of the Supreme Court ruled, affirmed the Mi'kmaq right to sustain themselves by trading animals and fish they hunted and caught in exchange for “necessaries.” The court found “necessaries” to be a modern-day equivalent to a moderate livelihood, but did not define what a moderate livelihood is.
In a followup to the Marshall decision, the Supreme Court clarified that the federal government could regulate the Mi'kmaq's right to fish when it comes to matters of conservation, so long as it consults with the First Nation and can justify the regulation. The courts will generally be reluctant to weigh into details of fisheries and conservation issues that fall in the government's scope, Kate Gunn, a lawyer with First People's Law in Vancouver, told the National Post. In the Marshall decision, the court set a broad parameter for the term “moderate living” with the expectation that the government, in consultation with the Mi'kmaq, would define that term.
There have been minimal, ineffective efforts by the federal government to consult Mi'kmaq people on being able to carry out a moderate living, said the Sipekne'katik, the First Nation community at the centre of this conflict.
Gunn said this is part of a broad pattern of the government either lagging or completely failing to implement Indigenous rights. She highlighted the Crown's failure to take the steps necessary to recognize and implement Wet'suwet'en Aboriginal title following the Supreme Court of Canada's 1997 decision, in which the court heard extensive evidence establishing the nature and scope of Wet'suwet'en title and rights.
Nova Scotia Premier Stephen McNeil has called on the DFO to come up with a definition for what constitutes a moderate livelihood. “That comes first because Nova Scotia's regulations rely on the federal Department of Fisheries and Oceans' authority and responsibility to manage the fishery and identify what are legal, licensed fisheries.” Since no definition of a moderate living had been established, the Sipekne'katik set out to determine what that meant. The Sipekne'katik outlined a “phased approach” to a moderate livelihood
fishery, determining its community's interest in livelihood fishing, what constitutes a livelihood for them and what they need to carry out a livelihood, such as traps and how many days and which seasons they need to fish in.
On the 21st anniversary of the Marshall decision, the band decided in September to exercise their treaty right to fish and sell for a moderate living. The council launched its own self-regulated lobster fishery, independent of the regulations outlined by the DFO, and handed out seven licences, each with 50 traps for a total of 350 traps, the CBC reported. A week later, the Sipekne'katik added three additional licences, raising their total traps to 500 and they now have 11 boats, each with a licence.
A single commercial lobster fishing licence from the DFO, depending on the lobster fishing area, permits 200 to 375 traps, and in 2018, there were 979 licences to fish in the area. At the heart of grievances of non-Indigenous commercial fishermen is conservation and the government's inaction to come up with a moderate livelihood definition, the president of the Maritime Fishers Union Martin Mallet told the National Post.
The Sipekne'katik have access to commercial fishing licences, and the non-Indigenous fishermen worry the creation of a moderate livelihood fishery, without regulation and consultation with the federal government could lead to the depletion of finite lobster stocks.
Colin Sproul, the president of the Bay of Fundy Inshore Fishermen's Association, told the CBC in September that the Marshall decision “clearly states that the government has a right and a duty to manage and conserve, which supersedes the treaty rights.”
The issue, Mallet said, is not precisely with the 10 licences the Sipekne'katik issued, but with the precedent. “It's 500 traps this year. Is it going to be 5,000 next year? ... This is why we are asking the DFO to manage the fisheries for everyone, not negotiating different sets of rules for different groups.”
Sproul said non-Indigenous fishermen worry that repeated out-of-season harvesting by Indigenous groups would lead to the destruction of lobster stocks in the years to come. In off-seasons, commercial fishermen cannot harvest the abundance of lobsters that gather in the warm waters of bays to moult and breed.
What has sent more fear through the commercial lobster fishery is the DFO's own signalling that the amount of lobsters in the waters has declined over the past three years, Mallet said.
Both Mallet and Sproul have condemned the violence taking place.
“There's been a lot of harassment on both sides, and that's been gut-wrenching for the community. People are not feeling safe anymore,” Mallet said. “It's tragic for the community.”
Mallet emphasized the need for the DFO to sit down with all stakeholders to come up with a solution, saying this has been one in many failures littering the Liberal government's road to reconciliation.
Sproul said fishing organizations in the Maritimes have reached out to the Mi'kmaq for three years to find a way through this for dialogue and “begged” Fisheries and Oceans Minister Bernadette Jordan to facilitate those conversations, but those calls went unanswered.
Following heightened tensions over the weekend, Ottawa responded Monday in condemning the violence and saying it would work with First Nations groups to come up with what constitutes a moderate livelihood.
HARASSMENT ... GUT-WRENCHING FOR THE COMMUNITY.