First Nation drops legal fight over surf-clam licence
Ethics probe still continues over politics charges
ST. JOHN’S • A Newfoundland First Nation has dropped its legal challenge of the federal government’s controversial decision to award a lucrative fishing licence to an Indigenous partnership in Atlantic Canada, saying government documents prove the licence was granted fairly.
The move is an aboutface for the Miawpukek Mi’kamawey Mawi’omi First Nation, which has been a vocal critic of a decision that has raised the ire of Indigenous groups, the Newfoundland government and the federal Conservatives, and has led to a federal ethics watchdog investigation.
Shayne Mcdonald, legal counsel for the First Nation, said the community’s case hinged on its understanding that the Five Nations Clam Company, which won the new Arctic surf clam licence in collaboration with Nova Scotia-based Premium Seafoods, had not met the government’s requirement that the winning bidder should be a partnership of multiple Indigenous communities.
Five Nations, a new entity headed by Chief Aaron Sock of the Elsipogtog First Nation in New Brunswick, only announced its partners in March, after it won the licence. Federal Fisheries Minister Dominic Leblanc also admitted that Five Nations had “reserved spots in their proposal” for Indigenous partners from all the Atlantic provinces and Quebec.
“The minister failed to apply the priority criteria fairly,” the First Nation alleged in an application for judicial review of the decision filed in late March in Federal Court. “Instead, he gave priority to an applicant that stated it would attempt to meet the criteria after it was awarded the licence.”
The Miawpukek First Nation had submitted an unsuccessful bid for the licence with two other Indigenous groups in Newfoundland. The new licence, for one quarter of the existing Arctic surf clam quota, was intended to further reconciliation by helping First Nations gain a foothold in a lucrative market and to break the monopoly on Arctic surf clams held by Halifax-based Clearwater Seafoods.
But Mcdonald said documents the government filed in response to the legal challenge, which include the bids from all nine applicants, show that when Five Nations applied it did in fact have one partner other than the Elsipogtog First Nation in place — the Innu First Nation of Natashkuan in Quebec.
“Even though they didn’t have all five, they had more than one. … It negated what we thought was the strength of our case, and on that basis we’ve withdrawn our application,” Mcdonald said. “It kind of took the wind out of our sails in terms of the grievance that we had.”
The court documents show that when Leblanc chose Five Nations, he was aware the company didn’t yet have all of its ducks in a row. “Please take next steps with (the proponent) and ensure that additional Indigenous communities are quickly confirmed,” he wrote in a handwritten note as part of his decision.
The Miawpukek First Nation was not alone in raising doubts about the process. Thirteen Mi’kmaq communities who had submitted their own bid for the licence announced in March that they, too, had “serious questions about the integrity and fairness of the process,” only to have one of their own, the Potlotek First Nation, sign on with Five Nations.
Newfoundland Fisheries Minister Gerry Byrne also declared that the decision “pitted province against province, community versus community and First Nation against First Nation.” Clearwater, the company that holds a monopoly on the fishery, has vigorously criticized the move, warning the company may have to cut jobs in Grand Bank, N.L., where it has built a processing plant and operates three harvesting vessels.
Clearwater’s three licences allowed it to harvest up to 38,756 tonnes of the clams last year, and the company’s 2016 revenue from surf clam sales was nearly $92 million. The clams are a popular sushi ingredient in Asia.
The federal Conservatives also waded into the fray in March, suggesting there were suspicious ties between the Liberals, Five Nations and Premium Seafoods. Premium president and CEO Edgar Samson is the brother of Nova Scotia Liberal MP Darrell Samson.
Moreover, the president of Nunatukavut, the Five Nations partner from Labrador, is former Liberal MP Todd Russell. The court documents also revealed that Gilles Thériault, the cousin of Leblanc’s wife, was involved with Five Nations.
At the Conservatives’ request, in May ethics commissioner Mario Dion launched an investigation of the decision under the Conflict of Interest Act, which is ongoing.
But Mcdonald said the Miawpukek First Nation’s concerns were unrelated to perceived Liberal ties. In particular, he said he’s convinced Russell’s past as a Liberal MP had nothing to do with his involvement in Five Nations.
Earlier this month, LeBlanc told the House of Commons that Newfoundland Liberal MP Churence Rogers “has been working on a number of proposals in partnership with Indigenous communities.”
On Thursday, a spokesperson for Leblanc said no decisions have been made about any such proposals.