Challenging rules
Sipekne’katik First Nation member planning to catch lobster, sell on South Shore wharf
Mi’kmaq woman plans to fish lobster, sell on South Shore wharf.
Cheryl Maloney is gearing up to go lobster fishing.
She doesn’t have a commercial licence and she won’t be using one of the food and ceremonial purposes tags she is eligible for as a member of the Sipekne’katik First Nation.
What the longtime organizer for indigenous and women’s rights has is a 1999 Supreme Court decision stating that she has the treaty right to make a “moderate livelihood” off the resources the Mi’kmaq traditionally exploited.
When she lands her lobster on a South Shore wharf, Maloney plans to invite Fisheries and Oceans Canada and the RCMP to come and watch her sell them.
“I expect them to protect me,” said Maloney.
“I don’t know what they would be charging me for. They have a right to regulate. They don’t have a right to deny.”
That remains to be seen. According to Fisheries and Oceans Canada, what Maloney plans to do is illegal.
So far the negotiations between the federal and provincial governments and the Mi’kmaq over how to implement the landmark 1999 Marshall Decision that declared the latter’s right to a “moderate livelihood” haven’t born any fruit.
Tensions have heated up in southwest Nova Scotia this summer as non-Aboriginal fishermen with commercial licences that cost north of $600,000 have complained that Fisheries and Oceans Canada has not enforced the law.
They allege that unlicensed First Nations members have been landing and selling their catches outside of the commercial season that runs from November to May.
“We gave them 18 years to figure out how they were going to fix it so we would have a fishery in place that allows treaty members access to a moderate livelihood,” said Maloney.
“… We’ve been patiently waiting but we’re not going to wait anymore.”
During a recent interview with The Chronicle Herald, Halifax lawyer Michael Donovan said that if Fisheries and Oceans did lay criminal charges against a First Nation member for poaching, then the courts could weigh in on whether the federal government has lived up to its treaty obligations to provide for a moderate livelihood fishery.
“The courts weigh in when someone brings a case before them,” said Donovan, who has extensive legal experience in marine and Aboriginal law.
Donovan cautioned, however, that, “The Supreme Court looked at what historically they had in colonial times — they caught for their own use and traded among themselves. So there was a commercial component but never to the scale of our modern commercial fishery.”
The Supreme Court left the matter of what constituted a “moderate livelihood” vague, describing it as food, shelter, clothing and a few amenities of life.
In the seven years that followed the Marshall Decision, Fisheries and Oceans Canada spent $600 million buying out commercial licences and gear and turning them over to First Nations communities in Atlantic Canada and Quebec. A total of 46 licences have been purchased and turned over to First Nations communities in lobster fishing areas 33 and 34 around southwest Nova Scotia. In signing those commercial access agreements, however, First Nations did not abdicate their right to a moderate livelihood fishery.
Maloney, who is also president of the Atlantic-based Eastern Door Indigenous Women’s Association, said that a few years ago she bought a boat and signed an agreement to lease one of the licences awarded to her band.
However the band has not renewed her access to that commercial licence and she had to sell the boat.
“The commercial licences given to the bands leave out women and they leave out treaty members,” said Maloney.
She expects to hold her protest within the next two weeks, once she has arranged for a boat and someone to buy her lobster on the wharf.