NEW SENSE OF URGENCY OVER N.S. LOBSTER FEUD
The unfinished business that fuels tensions in Nova Scotia’s Aboriginal fishery
First came the online threats. A drydocked boat owned by a non-Aboriginal fisherman was torched, followed a few days later by a boat owned by a Mi’kmaq man.
Nova Scotia Premier Stephen McNeil said it wasn’t clear what was going on in picturesque St. Mary’s Bay, and the RCMP said even less. But suddenly, a simmering dispute over the province’s Indigenous lobster fishery had taken on a new sense of urgency.
Non-Aboriginal fishermen have held a series of protests, saying some Indigenous fishermen were illegally selling lobster outside of the commercial season, and federal authorities have seized more than 300 illegal traps, though it remains unclear who owns them.
The tensions represent unfinished business from a September 1999 ruling from the Supreme Court of Canada that confirmed that First Nations have sweeping fishing and other treaty rights but left lingering questions about the limits.
“Some people are patient, but I think what we’re seeing is that some people are not patient — or have given up on a timely resolution,” said Bruce Wildsmith, legal adviser to the Assembly of Nova Scotia Mi’kmaq Chiefs.
Wildsmith has been involved since the beginning. He represented Donald Marshall Jr. in the 1999 case, when the country’s highest court ruled that Marshall had a treaty right to fish for eels when and where he wanted — without a licence. Marshall – previously best known for being wrongfully convicted of murder — had caught 210 kilograms of eels one day in August 1993, and then sold them for $787.10.
The Marshall decision also said Mi’kmaq, Maliseet and Passamaquoddy bands in Eastern Canada could hunt, fish and gather to earn a “moderate livelihood,” though the court followed up with a clarification two months later, saying the treaty right was subject to federal regulation.
However, the Mi’kmaq communities at Burnt Church in New Brunswick and Indian Brook in Nova Scotia defied federal authorities and immediately set lobster traps under their own band management plans.
That led to the seizure of traps, arrests, charges, collisions on the water, shots fired at night, boat sinkings, injuries and threats of retribution.
Over the course of three turbulent years, most First Nations in the Maritimes and Quebec signed interim fishing agreements with Ottawa, which has spent more than $600 million providing Indigenous bands with boats, equipment and licences.
But those interim agreements remain just that – temporary fixes for a festering problem, says Wildsmith.
He says negotiations with Ottawa following a framework agreement in 2008 have dragged on with no end in sight.
The latest clash in Nova Scotia is focused on the Indigenous food, social and ceremonial fishery. Under a previous ruling from the Supreme Court, known as Sparrow, First Nations are allowed to fish outside the regular commercial season to feed their communities or to supply ceremonial gatherings — but they are barred from selling their catches.
In mid-September, non-Aboriginal fishermen in western Nova Scotia started a series of peaceful protests at federal offices to draw attention to their claims that a small faction of Indigenous fishermen were selling their catches out of season, using the food and ceremonial fishery as cover.
“The powers that be simply aren’t enforcing the rules and regulations,” said Bernie Berry, president of the Coldwater Lobster Association.