If the start of a self-regulated, moderate livelihood fishery by Nova Scotia’s Sipekne’katik First Nation is any indication of what’s in store for the Atlantic Canadian inshore fishery, it might not be pretty.
It was almost poetic on Sept. 17 when Sipekne’katik First Nation Chief Mike Sack launched a moderate livelihood fishery for his band on the 21st anniversary of the Supreme Court ruling in the Marshall decision at the Saulnierville wharf in Digby County, 284 km away from the band’s home base in Shubenacadie.
Except it wasn’t.
Instead, it was chaotic, with no clear direction from the federal Department of Fisheries and Oceans (DFO) on the legality of a moderate livelihood fishery, considering it doesn’t meet the current fishing rules and regulations.
Perhaps the initial reaction of the commercial fishing industry and communities throughout Southwestern Nova Scotia would have been different if the lobster fishing season in the area was open at the time instead of closed for conservation reasons. Or if they hadn’t been already been peacefully protesting the alleged illegal lobster fishery by Indigenous fishers that has been ongoing for years in St. Mary’s Bay under the guise of the Food, Social and Ceremonial fishery. This fishery is apparently largely unchecked by DFO, with fishery officers directed to only “observe, record and report when conducting their enforcement duties during the closed season. They have dutifully done so, but higher ups do not permit them to lay charges,” according to a source who wished to remain anonymous.
Without a doubt it would have been cause for celebration by everyone if all stakeholders in the fishery had been at the table and had come to a mutual agreement on the framework of a moderate livelihood fishery, led by DFO and guided by the Marshall decision.
After 21 years of waiting for the federal government to establish regulations for a moderate livelihood fishery or engage the Mi’kmaq in formal consultation on developing regulations, the Assembly of Nova Scotia Mi’kmaw Chiefs say they are done waiting.
“We know our people are frustrated that they can’t yet earn a moderate livelihood from fishing, despite the right being affirmed by the highest courts in the country,” said Chief Terrance Paul, Co-Chair and Fisheries Lead for the Assembly of Nova Scotia Mi’kmaw Chiefs in a press release dated Sept. 10.
“We are equally frustrated. We have been at the table for years fighting for movement from the federal government so that our people can have access to the waters and resources.”
The same day the Sipekne’katik First Nation launched its moderate livelihood fishery, the Assembly of Nova Scotia Mi’kmaw Chiefs announced they, along with Potlotek’s Chief Wilbert Marshall, have sent a formal request for consultation under the Terms of Reference for a Mi’kmaq-Nova Scotia-Canada Consultation Process (TOR), to federal Fisheries Minister Bernadette Jordan to inform and discuss Potlotek’s Netukulimk Livelihood Fishery Management Plan to harvest lobster in exercise of their treaty right to fish for a moderate livelihood.
“We have the right to self-government and that includes our right to govern our fisheries. We are developing our own sustainable livelihood fishery, separate from the commercial fishery as we have a responsibility to protect our affirmed treaty right, and the court ruling. By working together, we will develop sustainable community fishing plans as this is important to our people today and to the sustainability of the resource for future generations,” said Chief Paul.
For the commercial fishing industry and coastal communities in southwestern Nova Scotia, the issue isn’t with the Mi’kmaq’s treaty right to earn a moderate livelihood from the fishery. The issue is with conservation.
“This isn’t about the rights of Indigenous people to fish. This is about conserving the fishery for everyone — both indigenous and non-indigenous fishermen. Unless there is one set of rules driven by conservation of the fishery, Canada’s fishery will be destroyed,” said Bernie Berry, President of the Coldwater Lobster Association, in a joint statement issued by a coalition of 13 Atlantic and Quebec fishing organizations.
“According to the Department of Fisheries and Oceans’ own data, the commercial landings in St. Mary’s dropped from 1,720 to 650 metric tonnes since 2017. That is nearly a 65 per cent drop in commercial landings for lobster in three years. This is directly related to the massive increase in the illegal out of season fishery during that time,” said Berry.
Grassroots fishermen are concerned not only about the illegal out of season activity, but the illegal baiting of traps with seeded lobsters, said the coalition.
“We have been receiving some reports that on top of fishing out of season, the lobster traps used in some cases were illegally set up and illegally baited to fish. We are hearing about traps being illegally baited with undersized lobsters and even egg bearing females. In the last few days, we have seen pictures and videos that prove this. As a lobster biologist by trade, I find this absolutely appalling,” said Martin Mallet, executive director of the Maritime Fishermen’s Union (MFU).
The Coalition of Atlantic and Québec Fishing Organizations has called on DFO to publicly haul the lobster traps set out of season.
“We are calling upon DFO to haul in the thousands of traps set out of season and illegally baited for the public to see what is happening. DFO should haul in the traps in a transparent fashion with the public and the media present to see first-hand what is happening,” said Joel Comeau, an MFU fisherman.
The Coalition says it is committed to peaceful action and wants DFO to take the lead in investigating what is happening.
“The first step to protect the fishery would be to have direct talks between the Government, Indigenous Leaders and fishing organizations to set a path forward for a healthy fishery with one set of rules driven by conservation and respected by everyone,” stated the Coalition.
Aside from three statements issued by Minister Jordan as of Sept. 21, DFO has remained mute about the legality of the self-regulated, moderate livelihood fishery launched by the Sipekne’katik First Nation.
The first statement issued on Sept. 17 to local media stated in part “Until an agreement is reached with DFO, there cannot be a commercial fishery outside the commercial season. A sound management framework is necessary for the management and conservation of fish stocks. I want to be clear that DFO continues to address unauthorized fishing. Fishing without a license is a violation under the Fisheries Act and anyone fishing outside the activities authorized under a license may be subject to enforcement action. While we must continue to uphold the law, we firmly believe that negotiation is preferable to litigation. These issues are longstanding, complex and deeply personal to all involved. The best way to resolve them is through a respectful and collaborative dialogue.”
The second, issued on Sept. 18 said in part “Our Government’s first priority is to ensure everyone involved remains safe. In Canada, anyone can participate in peaceful protests and that process is fundamental to our democracy. At this time, it is imperative that all parties — and the public — work together to lower tensions on the water and in our communities, to foster understanding between one another, because through understanding we will create the space for constructive, respective dialogue to happen. To that end, I’m extending an invitation for Indigenous leadership and industry leadership to meet with me as soon as possible. It is vitally important that we come together to find the best path forward to a peaceful resolution on the water.”
On Sept. 21 in a joint statement with the Minister of Crown-Indigenous Relations, Carolyn Bennett, Minister Jordan thanked the Assembly of Nova Scotia Mi’kmaw Chiefs “for their leadership and for the open, respectful and constructive conversation today, where we affirmed what the Marshall Decision declared over 20 years ago — that Mi’kmaw have a constitutionally protected treaty right to fish in pursuit of a moderate livelihood…. We want to work with First Nations leaders on the path forward of the implementation of their treaty right, and look forward to upcoming conversations on this matter. This government is firmly committed to advancing reconciliation, respecting Indigenous treaties, and implementing First Nation rights, and we firmly believe that respectful, constructive dialogue is the way to achieve this. At this time we need communication, not confrontation.”
DFO did not respond to questions from Atlantic Fisherman prior to press time.