Understanding could calm troubled waters
On Tuesday morning Sylvia Bernard will motor her 16 foot skiff out from her property on the Northumberland Strait and set lobster traps bearing moderate livelihood tags issued by the Pictou Landing First Nation and recognized by DFO.
“This year is going to be the good test,” said Bernard on Monday as she made final preparations to her 30 wooden traps.
The “test” is of an “understanding” that, DFO at least, hopes could be the beginning of a solution to strife over the implementation of moderate livelihood fishing rights on the Northumberland Strait.
At her office on Monday morning, Chief Andrea Paul explained that there is no signed agreement with DFO because the First Nation is not acknowledging any limits on its moderate livelihood fishing rights.
The understanding goes like this:
■ Pictou Landing has tags for 900 lobster traps to issue to its membership. Each community member approved by the band to fish is eligible for up to 30 tags.
■ Those members will fish traps with the same design criteria and abide by all the same rules as are applied to the commercial fishery.
■ While not agreeing with DFO’S interpretation of the 2001 Marshall Decision that moderate livelihood fisheries be conducted during local commercial seasons, Pictou Landing will abide by the May and June commercial season voluntarily.
“I expect DFO to treat my fishers the same as anyone else on the water,” said Paul.
In return, Pictou Landing First Nation’s moderate livelihood fishers will be able to sell their catch to licensed buyers.
For Bernard, it means a lot less stress.
She doesn’t have to worry about DFO seizing her traps and when she lands her catch each day, she can take it to a buyer at the nearby commercial wharf.
But less stress, isn’t no stress – it is still fishing.
She’s already received a threat that her traps would be cut if she set them in a particular area. While in previous years she says her traps were targeted by commercial fisherman, this time the threat came from a fellow
First Nation fisherman.
The cutting of the line running from the buoy to the trap, thereby making it nearly impossible to retrieve, has long been an occasional practice in contests over lobster grounds and is not unique to conflicts surrounding the moderate livelihood fishery.
NORTHUMBERLAND STRAIT
In the Northumberland Strait, certain licenses are associated with particular areas of ocean floor by custom but not by regulation.
The water Bernard will be taking her skiff into is fairly crowded.
There are non-aboriginal commercial fishermen, aboriginal fishermen holding their own private commercial licenses and First Nation crews fishing band-owned communal commercial licenses, all chasing a finite amount of lobster available to be caught in any season.
“(The 900 traps in Pictou Landing’s plan do) not surpass the number previously fished in LFA 26A by non-first Nation commercial harvesters, accounting for unused partnership agreement traps (two harvesters fishing one boat with fewer traps) and two banked licences,” reads a statement from DFO regarding where the capacity for the new fishing will come from.
“Under the Marshall Response Initiative, Fisheries and Oceans Canada (DFO) acquired fishing licences through voluntary relinquishment and ‘banked’ them for the purpose of re-allocating fishing access to First Nations.”
DFO has made available capacity for its attempts to implement moderate livelihood fishing understandings with other First Nations, such as Acadia, Bear River, Annapolis Valley and Potlotek First Nations by buying up and banking retired commercial licenses around the Maritimes.
Gordon Beaton, president of Local 4 of the Maritime Fishermens Union, said that the capacity made by DFO comes from other areas of LFA 26A and not from the same ground on which the new effort will occur. Therefore, he said, they represent more effort chasing a finite available amount of lobster to be caught in a season.
“Who bears the cost of reconciliation?” said Beaton.
“It is the Government of Canada that has treaties with the First Nations peoples and so it should be the government who is responsible for reconciling that issue. But as we’ve seen with elvers, crab, and some lobster it is not the people of Canada who will be economically affected but small business owner-operators.”
MARSHALL DECISION
After the Supreme Court of Canada’s Marshall Decision, which acknowledged the right of the Mi’kmaq and Maliseet to earn a moderate livelihood off traditional resources, the federal government spent hundres of millions of dollars buying up commercial licenses and providing them with training and equipment to First Nations.
While Sylvia Bernard heads out fishing on her skiff on Tuesday morning, her partner Gary Denny will be at the helm of one of the band’s 18 Northumberland style vessels, fishing a communal commercial license provided the band under the Marshall Response Initiative. After the lobster season is over, he will head to Cape Breton to fish one of the band’s 11 snow crab licenses.
While those licenses provided access for First Nations to the commercial fishery, copies of the agreements under which they were transferred that have been seen by The Chronicle Herald state repeatedly that they are without prejudice to the moderate livelihood right – i.e. they don’t count toward satisfying it.
For leaders in the commercial fishery, such as Colin Sproul, the new understandings reached by DFO offer the security of requiring moderate livelihood fisheries to take place during commercial seasons. They also raise the question of how much access will get transferred.
“There is a finite amount fishing communities can give up and still be viable,”said Sproul, president of the United Fishery Conservation Alliance.
‘COMMUNITY BUILT A SOLID PLAN’
For First Nations, it’s about making a living off resources they’ve long had a treaty right to pursue but have historically been denied access to.
Paul said that the band will continue to evaluate what is a fair distribution of the 900 moderate livelihood traps and whether fishing during the commercial season is best for her people.
“Our community built a solid plan, and we were open and transparent with industry and government alike on what our harvesters wanted to do,” stated Paul.
“We recognize the work undertaken by our fellow Mi’kmaw communities to see that the Mi’kmaq of Nova Scotia can earn a living through fishing, which has been an important part of our culture since time immemorial.”
On Monday, the band’s fishery manager, Wayne Denny, was supervising a beehive of activity as fishers prepare to load boats for their commercial licenses.
He made it clear he has no responsibility for the band’s moderate livelihood fishery and didn’t want to speak about it.
“Looking like a good price this year,” said Denny.
The price at the wharf is expected to be around $10 a pound for the opening days of the fishery (which is high) but usually drops after Mother’s Day.
Pictou Landing employs about 90 of its community members fishing its commercial licenses.
Over the years, Denny and Pictou Landing’s captains have developed good relationships with the non-aboriginal fishermen they work beside on the water.
“Wayne Denny has done terrific work there,” said Beaton.
“Pictou Landing has a successful and well-operated communal commercial operation.”
The respect that has developed on the water between aboriginal and non-aboriginal fishermen was strengthened when they came together to oppose Northern Pulp’s proposal to dump treated effluent in the Northumberland Strait near Caribou.
Bernard believes that with her smaller boat, she’ll be able to set traps closer to shore and thereby avoid conflict with other fishermen.
And she wants to develop similar relationships of mutual respect as have developed between Pictou Landing’s communal commercial fishermen and non-aboriginal fishermen.
“This is about exercising our rights for ourselves and for future generations,” said Bernard.