There’s a lot going on right now in the world, so you may have initially missed what’s happening in your own backyard, specifically in Nova Scotia. But, make no mistake: You should be paying attention now to the clash happening between Indigenous and non-Indigenous fishers.
On September 17, the Sipekne’katik First Nation launched its own Mi’kmaq-regulated, rights-based lobster fishery in St. Marys Bay, an area of water located about 250 kilometres west of Halifax. According to CBC, it’s believed to be the first fishery of its kind in the province, and on the day of the launch, the Sipekne’katik First Nation held a ceremony to launch its fishing fleet and give out permits and licenses. Unfortunately, the announcement wasn’t celebrated by everyone in the province, and sparked violent protests in nearby Saulnierville among local non-Indigenous fishers—coming to a head on the weekend of September 20.
For those of us outside the province, a lot of questions have arisen since catching the news reports of this clash, such as: Why did the Sipekne’katik First Nations launch their fishery now? Why are non-Indigenous fishers so angry? Is this legal? And how do we resolve this issue?
Here’s everything you need to know about the ongoing dispute between Indigenous and non-Indigenous fishers in Nova Scotia, including what it has to do with an over 20-year-old Supreme Court ruling.
Who are the Sipekne’katik First Nation?
The Sipekne’katik First Nation is one of 13 First Nations located in the Nova Scotia, and is the second largest Mi’kmaq band in Nova Scotia, according to the community’s website. They are located in Hants County, the traditional territory of Sipekne’katik, AKA Shubenacadie, N.S., only 68 kilometres outside of Halifax.
For those who may be unfamiliar, Sipekne’katik First Nation belongs to the wider Mi’kmaq nation; the largest of the North American Indigenous tribes, per Britannica. The Mi’kmaq people traditionally occupy Canada’s Eastern Maritime Provinces, and are among the original inhabitants of the Atlantic region.
So, how did this dispute start?
While the dispute may seemingly have begun with the launch of a self-regulated Indigenous lobster fishery in the traditional territory of Takmeteq, AKA Saulnierville, N.S., recent clashes are actually part of a decades-long conflict coming to a head. Indigenous fishermen launched the fishery—with the intent of catching lobster outside of the season, after what Chief Terrence Paul—fisheries lead for the Assembly of Nova Scotia Mi’kmaq Chiefs—told CBC was years of attempts to negotiate a deal with the Department of Fisheries and Oceans (DFO), stemming from complications and ambiguity around a 1999 Marshall decision in the Supreme Court of Canada (more on that later). Their operation is considered to be outside of DFO’s regulations.
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In response to the fishery’s launch—which grants fishing licenses to its band members who meet certain requirements, and grants 50 traps per license issued—non-Indigenous fishers attempted to block boats going out to fish, allegedly cut trap lines on Indigenous property (ensuring they wouldn’t be able to retrieve their traps), removed traps from the water and gathered in front of an alleged buyer’s home.
New strategy from the commercial fishermen in south west Nova Scotia today: they’re turning their attention to those who they believe are buying Mi’kmaw-harvested lobster. Big crowd gathered outside the house of an alleged buyer this morning. pic.twitter.com/VbcG4naBv8
— Taryn Grant (@tarynalgrant) September 21, 2020
Overnight on September 18, Indigenous fishermen put up blockades made of lobster traps at the Saulnierville wharf in response to commercial fishermen they say were trying to intimidate them.
In a September 20 statement, Sipekne’katik Chief Mike Sack said of the ongoing vandalism: “It is so disheartening to have had a progressive meeting with the Minister yesterday to reinforce that we are following our moderate livelihood fishery plan and to be repeatedly sabotaged by this criminal conduct.”
Why are non-Indigenous fishermen so upset?
The main issue non-Indigenous fishers claim to be pushing back against is that, according to them, Indigenous fishermen—by fishing year-round—are fishing illegally. They have also said that they’re worried fishing out of season will negatively affect the lobster stocks, as it’s occurring during a time when they are breeding.
Can the Indigenous fishery legally fish outside of season?
Technically, yes. And there’s history behind this reasoning. In September 1999, a Supreme Court decision—known as The Marshall Decision—declared that Donald Marshall Jr., a Mi’kmaq man from Membertou, N.S. was justified in catching and selling 210 kilograms of eel with an illegal net and without a licence because it was in the pursuit of moderate livelihood. This decision was based on the Peace and Friendship Treaties that were signed in 1760–61 between the Mi’kmaq and the British Crown, and are still valid to this day. These treaties posit that Mi’kmaq have the right to harvest and sell fish, wildlife as well as wild fruit and berries in order to obtain a moderate livelihood.
“Treaties were there to provide the orderly settlement of Canada, while still preserving the traditional lifestyle and a means of livelihood for Indigenous people,” explains Ron Maurice, managing partner and founder of Maurice Law Barristers & Solicitors, the only Indigenous-owned national law firm in Canada. “So they were always intended to be balanced approaches, trying to reconcile very competing objectives; taking up land for settlement obviously would have created problems or friction.” As opposed to contemporary legislative laws, these treaties are “solemn agreements,” Maurice says. “They’re not just deals that could be broken down by the government because they had legislative authority,” he continues. “They’re not international treaties, but they’re not mere contracts either. So they’re intended to be solemn agreements where the Crown is expected to honour its obligations.”
In the case of “moderate livelihoods,” Maurice says the treaty rights refer to Indigenous peoples’ right to not accumulate wealth, but to make a living from fishing (within reason of not over-fishing the stock). “If there’s a recognition of a treaty right, that means that prevails over and supersedes other privileges,” he says. For example, Maurice says, if you need 100,000 lobster to maintain the health of the stock, but there’s 110,000 lobsters available, that means 10,000 are available to be fished commercially. Under Treaty Rights, “the First Nations would have priority over other discretionary users.” It’s an equation that is probably frustrating for non-Indigenous commercial fishermen—something Maurice understands—”but that is also a reflection of the treaty rights that predates a lot of things that are going on today,” he says.
Another frustrating issue? The Crown government never clearly outlined what “moderate livelihood” exactly means or how it should be measured. For Megan Bailey—an associate professor and Canada Research Chair in integrated ocean and coastal governance at Dalhousie University in Halifax—the response from commercial fishermen arises from this lack of clarification, as well as a misunderstanding around Treaty Rights and regulations.
Bailey points to the fact that there has been a movement of licenses to First Nations bands in the form of commercial communal licenses—licenses which are given to bands and which they determine who in the community can fish. “So I think there’s a bit of confusion around whether or not commercial communal [licenses] were supposed to support a moderate livelihood, because they’re supposed to bring benefits to the band,” she says. “I think in part that’s leading to this idea of ‘why do they need a livelihood fishery when they already had this other access?’; but they’re different things.”
Is it actually detrimental to fish out of season?
While commercial fishermen may be nervous about the moderate livelihood fishery trapping lobster out-of-season (between May and November) having a negative affect on lobster stock (i.e. over-fishing or depleting the stock), Bailey says that’s not necessarily a risk here. “It really depends on the scale and it depends on the conservation measures that go along with it,” she says of the moderate livelihood fishery’s operations. “[They’ve] looked at what the regulations are for commercial fishermen in terms of the size of lobster you can keep—if they’re soft shell they need to be thrown back, if they’re not a certain size, they need to be thrown back, if they’re a female that has eggs, she has to be thrown back—so they’ve adopted those kinds of regulations. Those things help.” In other words, a summer fishery (i.e. out of season) with these regulations may be totally fine, and a summer fishery without may not. “It’s not really black or white,” Bailey says. But, “at the current scale and with regulations in place, I would say it’s sustainable.”
So why does Canada have these fishing seasons and regulations in place?
It has to do with a few things, number one being product supply. As Bailey describes, in Canada we prioritize hard shell lobsters. In the Maritimes—specifically Lobster Fishing Area 34 and 33, the area in the news right now—fisheries are closed between May and November. “That’s during the molting period of the lobster when they’re very soft shelled,” she says. “So that’s an inferior product.” From a biological standpoint, Bailey points to the state of Maine in the United States, as an example of somewhere that fishes year-round, catching soft-shelled lobster as well. “So there isn’t a biological reason for them to have seasons.” Meaning that although in Canada we give lobster a break during their molting period, this is more for an economic and product supply point of view, not because there’ll be any negative affects on the lobster or the ocean.
Something else important to recognize? As Bailey says, no fishery in and of itself is sustainable or unsustainable. Just because a fishery operates in-season (i.e. during the winter in Canada), doesn’t necessarily mean it’s the better option. It’s important, Bailey says, to consider the cumulative impact of having both winter and summer fishing. “We now have a summer fishery and a winter fishery and the winter fishery is not necessarily taking into account the mortality from the summer fishery. So these are obviously additive issues and we can’t really manage one of those fisheries without taking into account the other ones,” she says. “So for me, it’s not an issue of summer versus winter and which is better, you have to take into account the scale of the fishery in relation; so a small summer fishery might be more sustainable than a large winter fishery, for example.”
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Why would Indigenous communities want to fish outside of the season?
There are many reasons Indigenous fishermen would choose to fish outside of the season, paramount among them being the fact that they want to provide for themselves and their families. While commercial communal licenses are great, they’re really for the benefit of the community. “As far as I understand it, those commercial communal licenses go to the band and then the band determines who fishes those and the benefits of that license is supposed to go back to the community,” Bailey says. This is where the commercial communal and moderate livelihood fishery differ. “The moderate livelihood fishery is really an individual fishery and it’s the right for any Mi’kmaq to go out, to catch and sell lobster to feed his or her family and extended family. And so it’s really about earning a living from lobster to support one family; it’s a difference between a community benefit and an individual benefit.” In case you’re wondering, non-Indigenous commercial fishermen automatically fall into the latter, meaning every license and vessel is individualized.
Bailey, for her part, supports the Mi’kmaq’s right to fish year-round, within reason. “I think it needs to be taken into context with when all the other catches are taking place,” she says. “But yes, from an individual’s livelihood perspective and from a food provisioning and sustainability perspective, I would say that if we looked at environmental, economic and social reasons, fishing all year might be what make sense.” But, she says, it’s up to the bands. “I think each band and First Nation has their right to say, ‘we want to be fishing all year.’ That might not be something that each band wants, it’s important to recognize that.”
So, who’s in the right?
It’s complicated. At the heart of this is a Treaty Rights issue. While Maurice says that as a Treaty Right—Indigenous fishermen’s abilities to fish for a moderate livelihood supersedes other privileges—that doesn’t mean that it’s entirely black and white, because, just as Indigenous fishermen have a stake in and their livelihood rooted in fishing, so too do the non-Indigenous fishermen on the East Coast. “Really what it comes down to, and maybe the reason why there is such tension, is it really amounts to a zero sum game,” Maurice says. “So if First Nations have a priority allocation over the fishery recognized as a Treaty Right [and] entrenched in the constitution, then it’s a problem in that means there’s going to be winners and losers. Which is a tough pill to swallow as I’m sure there are many fishermen on the East coast that have maintained the livelihood for generations.”
In an email to FLARE, the Department of Fisheries and Oceans said: “Lobster stocks across the Maritimes Region remain healthy,” and that “DFO will continue to support the research and adaptive management measures necessary to ensure a sustainable lobster fishery.” In a September 21 statement, Minister of Fisheries Bernadette Jordan and Minister Carolyn Bennett said they share the concerns of the Assembly Chiefs for the safety of their people. “Reconciliation is a Canadian imperative and we all have a role to play in it. What is occurring does not advance this goal, nor does it support the implementation of First Nation Treaty rights, or a productive and orderly fishery.”
How will this be resolved?
While the DFO and Indigenous leaders continue to be in discussion, a good place to start would be with outlining and clarifying what exactly “moderate livelihood” means, something Maurice believes can happen through agreement between all the parties in order to balance competing objectives. It’s a task that he acknowledges is easier said than done, considering people’s livelihoods are at stake.
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While Bailey says that tensions seem to have died down a little after the September 2o meeting between Chief Sack and Minister of Fisheries Bernadette Jordan, that’s not to say that there won’t be more tension down the line—and at other moderate livelihood fisheries if they choose to open in other areas of the Maritimes. “This is one wharf and one band,” she says. “The worry is that this could play out across wharves all over the Maritimes and Gulf region.” In her personal opinion, Bailey says that the Federal government, First Nations government and Chief and Band Counsellors need to come together and start a conversation around what a moderate livelihood exactly looks like. And they need to include the commercial sector in these discussions.
“I think part of the worry that commercial fishermen have is that they’re not being told anything. There’s been no leadership from the federal government, so it’s a very uncertain time for them.” While Bailey doesn’t think the launch of moderate livelihood fisheries means commercial fishermen will be pushed out of the fishery, if they are going to be pushed out, they need to know. “There’s a huge capitalization in the fishery; so a lot of people have a lot of money invested in both gear and licenses. And if they’re not going to be able to continue using those, that’s a huge issue for our products and for the economy. So transparency, leadership and collaboration, I think those three things are going to be really important.”