How the feds bungled the file
‘This is about a culture (in Ottawa) that would rather avoid any conflict at all’
Documents obtained through a freedom of information request show the federal Fisheries Department knew that 21 years of kicking the moderate livelihood issue down the election cycle had resulted in there being little rule of law on St. Mary’s Bay.
The feds knew that the bay had become a pressure cooker as two communities were pitted against one another over a limited resource.
When the top blew off, they turned to coming up with new policy on the fly while seeking a daily scorecard on evolving public opinion.
“This is about a culture (in Ottawa) that would rather avoid any conflict at all,” said Thomas Isaac, an Aboriginal rights lawyer who has served as British Columbia’s chief treaty negotiator, assistant deputy minister responsible for establishing Nunavut and special representative to the minister of Indigenous and Northern Affairs.
“Of course, the irony there is: by not doing anything on the regulatory regime it furthers the potential for conflict.”
Briefing notes to Fisheries Minister Bernadette Jordan show that her department was aware that tensions had been brewing around St. Mary’s Bay for four years as a commercial fishery operated outside the commercial season under the guise of a food, social and ceremonial (FSC) rights-based fishery.
“Recent observations by fishery officers confirm over 40 commercial sized vessels fishing multiple trips in one day and multiple band vessels fishing large quantities of lobster traps for (Food Social and Ceremonial) purposes,” reads an Aug. 27 briefing note to Jordan.
“Bands are not reporting their FSC catches, making it challenging to confirm if the removals are proportionate to allocations; however, it is reasonable to conclude that some bands are exceeding their FSC allocations.”
The FSC fishery was created in response to the Supreme Court of Canada’s 1990 R vs. Sparrow decision. Seafood under that regime is not allowed to be sold.
The court’s 1999 R vs. Marshall acknowledged the right of Mi’kmaw and Maliseet to sell seafood to make a "moderate livelihood." The court directed the federal government to consult with First Nations on the creation of a regulatory regime for a moderate livelihood fishery.
Instead, successive governments have bought out commercial fishing licences and provided them to First Nations under agreements that see them promise not to pursue their right to a moderate livelihood fishery for a period of time — most were 10 years.
By 2009, over 1,200 commercial licences — 11 per cent of all the existing fishing licences in Atlantic Canada — have been bought up and turned over to First Nations on the East Coast, under programs known as the Marshall Response Initiatives. More have since been provided.
According to the ministerial briefing notes, the policy has resulted in frustration between First Nations because some have got more licences than others and by individual Mi’kmaw who complain that the licences haven’t resulted in them being able to exercise their treaty right.
For them, going fishing and selling lobster caught outside the commercial fishery is exercising a right that Ottawa’s regulations haven’t caught up with.
The minister, Jordan, was informed in an August briefing note that efforts to enforce the Fisheries Act on St. Mary’s Bay had been largely ineffective.
“In successive years, fishery officers have undertaken a variety of operations to deter both unauthorized fishing as well as the illegal sale of the FSC product,” reads a briefing note to her.
“This has culminated in thousands of traps seized and multiple charges against both harvesters and buyers that are currently working their way through the court system. Thus far, these actions have had a limited deterrent effect because: removed traps are easily replaceable, the illegal fishery network is very lucrative, (Sentence redacted by government) and the length of time necessary to successfully investigate and prosecute a case is substantial.” Meanwhile, in the largely Acadian communities surrounding St. Mary’s Bay, frustration grew as they watched their landings decline by 63 per cent over the past four years.
St. Mary's Bay is a small part of the massive LFA 34 fishing area.
“The lobster stock in LFA 34 is assessed annually by DFO Science and is currently considered to be in the healthy zone,” reads a ministerial briefing note.
“However, the majority of the FSC fishery is concentrated in what equates to less than one per cent of LFA 34.”
With tensions rising, Jordan’s office returned to the playbook of previous governments: Shopping around some 300 dormant commercial licences in exchange for commitments to not pursue a moderate livelihood fishery for at least the next decade.
These deals, however, had a new name — Rights Reconciliation Agreements (RRAs).
“It is envisioned that these RRAs would recognize the Treaty right without defining the scope of the right while providing greater certainty in the respective fisheries,” reads a letter Jordan sent to eight New Brunswick First Nations in August. So what does that mean? “It means you get to say it but you don’t have to do anything else,” said Isaac.
“It allows you to not have to regulate the treaty right. It allows you not to take a — quote-unquote — position.”