The implementation of Treaty-based fishing rights for First Nations in the Maritimes and Québec is continuing through Moderate Livelihood Understandings and Rights Reconciliation Agreements with Fisheries and Oceans Canada (DFO).

“Second only to conservation is our responsibility to work with First Nations to further implement right-related fisheries,” said Michael Leonard, DFO’s Director of Indigenous Fisheries Management, Maritimes Region, during a technical briefing this summer on the Department’s management of Indigenous rights-related lobster fisheries.

“Indigenous harvesters exercise their inherent Treaty rights to fish through various DFO authorized fishing, including food, social and ceremonial purposes, and commercial fisheries including communal commercial fishing and interim understandings reached to fish in pursuit of a moderate livelihood, while maintaining a sustainable fishery for all harvesters,” said Leonard.

In 2021, DFO launched an alternative approach for interested Indigenous communities to exercise the Treaty right to fish through the issuance of authorizations of community-developed Moderate Livelihood Fishing Plans (MLFPs).

Fishing under MLFPs takes place within established seasons, includes conditions similar to those of commercial licences (such as North Atlantic right whale protections) and is conducted exclusively by community members for their own benefit or the benefit of their family. Of note, these are understandings, not signed agreements. Treaty Nations produce a community-developed fishing plan and DFO produces an authorization parallel to the plan.

So far, the department has reached interim moderate livelihood understandings with nine First Nations to fish lobster within established commercial fishing seasons without increasing overall effort, says Leonard.

“Under moderate livelihood understanding, communities identify community members who wish to fish in pursuit of a moderate livelihood under the community developed plan and they are authorized under a licence issued by DFO.”

Eight of the First Nations are in Nova Scotia: Potlotek, Bear River, Annapolis Valley, Glooscap, Acadia, Pictou Landing, Eskasoni and We’koqma’q. Lennox Island First Nation on Prince Edward Island has also reached an interim moderate livelihood understanding with DFO.

Access for Indigenous harvesters fishing in pursuit of a moderate livelihood under a DFO-issued authorization is supported by banked licences held by DFO and access obtained through a voluntary licence relinquishment process in combination with unfished traps, says Lauren Sankey with DFO communications.

“DFO has completed four broad expression of interest processes across multiple lobster fishing areas (LFAs) to increase Indigenous access to rights-based fisheries in the department’s Maritimes Region. These processes provide existing commercial lobster licence holders with the opportunity to end or reduce their participation in the fishery, in exchange for a financial arrangement. Through these processes, two commercial lobster licences (one each in LFAs [lobster fishing areas] 33 and 34) have been relinquished,” said Sankey.

“The department is currently conducting more targeted processes for individual LFAs with one in progress (LFA 38) and another starting in the near term (LFA 36). The relinquishment processes have been focused on LFAs that align with existing and anticipated moderate livelihood fishing plans and previous processes were launched for LFAs 27, 29, 30, 31A, 33, 34, 35, 36 and 38.

“The Gulf Region also carried out voluntary relinquishment processes, some of which resulted in three commercial licences in LFA 26B relinquished to support First Nations located in Maritimes Region that have submitted plans to fish in LFAs managed by Gulf Region. The voluntary relinquishment of these licences is an important step to further support implementing the Treaty right to fish in pursuit of a moderate livelihood by increasing Indigenous access to the commercial lobster fishery, without increasing overall fishing effort. The “willing buyer, willing seller” (voluntary relinquishment) approach remains the Department’s preferred approach in relation to the implementation of moderate livelihood fishing plans,” said Sankey.

Leonard said DFO is guided by three key principles: the conservation and sustainability of fish stocks, further implementation of Treaty rights and transparent and stable management of the fishery.

Six rights reconciliation agreements (RRAs) have also been reached with First Nations in the Maritimes and Québec over the past four years, including three this year.

Elsipogtog and Esgenoôpetitj First Nations, New Brunswick and Maliseet of Viger First Nation-Wolastoqiyik Wahsipekuk, Québec, were the first two First Nations to reach RRAs in 2019.

Photo by Lonnie Snow

In 2021, Listuguj Mi’gmaq First Nation, Québec, followed suit. In April, P.E.I.’s Abegweit First Nation and New Brunswicks’s Peskotomuhkati Nation at Skutik reached RRAs with DFO and in June, Gespeg and Gesgapegiag First Nations, Québec.

“Each Agreement is intended to provide First Nations with tools to address the moderate livelihood fishing needs and interests of the Nation and its members. They also aim to outline how we can work together to collaboratively manage fisheries to ensure stability and predictability, for the benefit of everyone,” said Sankey.

Leornard said RRAs are formal, time-limited agreements, co-developed through discussions with First Nations. “These agreements recognize, but do not define, the Treaty Nations’ right to fish in pursuit of a moderate livelihood and aim to provide greater clarity and predictability relating to how the right will be exercised for the duration of the agreement,” he said.

While MLFPs are simply “to support the right and the fishing that takes place” and involve no funding, RRAs “do include funding agreements to support capacity building and other elements of governance within the community to support fishing,” said Leonard.

First Nations are also reaching MLFPs with DFO for other species.

“The elver fishery had nine licences in total up to 2021, with two additional interim DFO-issued authorizations provided to Indigenous communities in 2022 and in 2023. DFO renewed interim understandings with the Kespukwitk First Nations in Nova Scotia and the Wolastoqey Nations in New Brunswick which saw designated harvesters from 10 Indigenous communities fishing commercially for elver during the 2023 season under DFO-issued authorizations that reflected community-developed harvest plans,” says Sankey.

“On June 16, 2023, DFO and Sitansisk (St. Mary’s First Nation) reached an interim understanding that saw members of the community fishing gaspereau in pursuit of a moderate livelihood on the Wolastoq (Saint John River), without increasing overall fishing effort. This moderate livelihood fishery was supported by a community-developed fishing plan and a DFO-issued authorization. These short-term understandings do not replace the possibility for longer-term agreements that would serve to implement other aspects of First Nations rights and interests beyond authorized interim moderate livelihood fishing plans.”

A number of other First Nations communities are engaging with DFO on advancing their moderate livelihood fishing plans, including Sipekne’katik in Nova Scotia.

“The Department has received Sipekne’katik’s moderate livelihood fishing plan and remains interested in working with Chief and Council, as well as community members, to discuss any interest they may have to fish in pursuit of a moderate livelihood under their community-developed plan and a DFO-issued authorization as the Department has done with other First Nation communities across Atlantic Canada and Québec,” said Sankey. “Any commercial fishing happening outside DFO-authorized moderate livelihood fishing plans, or otherwise in contravention of the Fisheries Act and regulations, including seasonal regulation, would be unauthorized, and would be subject to enforcement action,” stated Sankey.

Since 1999, DFO has launched several programs to respond to the Marshall Decision, beginning with the Marshall Response Initiative. Agreements were reached with 32 of the 35 eligible First Nation communities in all three Maritimes provinces and in the Gaspé region in Québec for assets and training to help increase and expand their participation in commercial fisheries.

Through the initiative, investments made between 2000 and 2007 provided the First Nations with communal commercial fishing licences, fishing vessels and gear, and training, all in support of increasing Indigenous participation in commercial fishing. Following the Marshall Response Initiative in 2007, DFO launched the Atlantic Integrated Commercial Fisheries Initiative. This initiative provides funding and support to the Mi’kmaq and Wolastoqey First Nations and the Peskotomuhkati Nation at Skutik so that they can continue to build and strengthen their own self-sustaining, communal commercial fishing enterprises.

In total, 1,142 communal fishing licenses have been issued by DFO to First Nations in the Maritimes for 26 aquatic species.