DFO must respect Indigenous lobster fishing rights

Problems in the Nova Scotia lobster fishery after Indigenous groups decided to exercise their treaty rights have become a recurring theme in Canadian fisheries management, where otherwise reasonable and legal requests for inclusion of Indigenous peoples have been put off or ignored — at least until conflicts occur.

Economists argue that fishing wild stocks — public goods managed by the Department of Fisheries and Oceans (DFO) — in a free-for-all situation is biologically and economically unsustainable. They usually argue for some form of fishing access rights, considering all users’ needs of the resource. Canada has partially followed these recommendations, although with mixed success and without much regard for social and economic issues. The present lobster fishery regulations in Eastern Canada maintain the status quo distribution. This deals partially with the “open access” fishing problem.

Yet, we know that however access rights are created, there will be winners and losers. Presently, the winners are the nonIndigenous lobster fishers, many of whom have been in the fishery for several decades. This group has an advantage in maintaining their access rights, because membership is small, well-organized and ready to lobby DFO to maintain access to exclude other users.

Some Canadians excluded from lobster fisheries are also families who fish for sport or subsistence, as well as Indigenous stakeholders. DFO, under pressure from commercial non-Indigenous lobster fishers, makes regulations to exclude other Canadians, invoking biological conservation, an objective enshrined in the Fisheries Act of Canada. This exclusion can extend to other species related to lobster. Coastal families who sport or subsistence fish cannot fish for herring and mackerel in certain DFO regions, partly because these are bait fish for lobster. Although conservation is often invoked because of the Fisheries Act, it is also selectively applied. Such restrictions, through the guise of conservation, further favour those who have pre-existing access rights.

Exclusion of other Canadians to accessing lobster and related species has seldom come to the fore. However, Indigenous fishing rights have been recognized for some time by the courts. Examples of this are the Sparrow (1990) and later the Marshall (1999) decisions, which upheld the rights of Indigenous families and fishers to earn a “modest living from the sea.” DFO, the manager of these access rights, has failed to clearly codify that vague directive, although they have been active in transferring fishing access rights for species in certain regions to Indigenous fishers, while excluding enlarged access to lobster and other higher-valued species.

Attempts by DFO to expand fishing access to Indigenous groups have been occurring for over 20 years, but mainly by allowing access to newer species of lower value. Access is not often extended to higher-value species like lobster. Frustrated Indigenous groups have again been asserting their treaty rights through actions that some perceive as unreasonable. However, their claims have been deemed reasonable for over 20 years by the Supreme Court of Canada in landmark decisions.

It is now time for DFO to recognize the court’s decision and establish ground rules for access to the lobster fishery that include Indigenous groups. However, doing so will require a change of perspective. The ministry continues to approach management of these public goods almost exclusively through the lens of biological conservation. In so doing, that blinds managers to the social and economic nuances of their own decision-making.

It becomes easy, for example, for managers to identify a group as the beneficiary (usually those able to maintain the most political pressure) and exclude everyone else under the pretense of conservation. In these cases, social and economic considerations — such as providing access rights efficiently and fairly to all resource users — are set aside. DFO must now, while still respecting the conservation objectives of the Fisheries Act, make room for another legitimate stakeholder, as they should have done long ago.

DFO and Canadians should recognize the conflict for what it is — a legitimate debate over the efficiency and justice of access rights distribution as presently executed by DFO.

Failing that, fisheries management will continue to be fraught by conflicts and by unsustainable exploitation of these public goods, thus undermining the very precepts of conservation DFO claims to uphold.