HomeIndustryModerate Livelihood Fishery Dispute Headed to Court

Moderate Livelihood Fishery Dispute Headed to Court

Although a lot has happened, fundamentally not much has changed in the past year since First Nations in Nova Scotia have sought to exercise their treaty right under the Marshall Decision to earn a moderate livelihood.

“We were on a call to the deputy minister (DFO) last week. Our message to the deputy was the same as it was last year and their message back to us was the same,” said Colin Sproul, president of the Unified Fisheries Conservation Alliance (UFCA), an alliance of commercial fishery stakeholders representing nine fishermen’s organizations in Nova Scotia.

“Ultimately we feel to reach a resolution here we’re going to be back in the Supreme Court,” said Sproul.

As it is, the situation is already headed back to the Supreme Court of Nova Scotia, with Potlotek First Nations challenging Fisheries and Oceans Canada’s (DFO) regulation and enforcement of Indigenous fishing activities as well as the Potlotek First Nation and Sipekne’katik First Nation court cases challenging provincial regulations governing the sale of fish and fish products.

The Alliance is seeking intervenor status in both cases.

“It is important that the perspective of those who work within the multi-species fisheries every day are heard and considered as part of the court proceedings,” said Sproul. “We want to ensure the court and parties involved in the case understand the commercial fishing industry’s perspective and the importance of DFO enforcement and oversight for all fisheries and the importance of the provincial regulatory regime.”

Sproul said the Alliance has retained the law firm Blake, Cassels and Graydon to represent it and has set up a fund to pay for legal initiatives and other costs associated with the Alliance’s efforts.

He added that the UFCA is asking for a $1,000 donation from each member of the organizations represented. “We’re getting a good response from our members, but kind of feel like we’re trapped in an impossible situation where the lawyers are demanding secrecy from us.”

Sproul said the UFCA believes Indigenous and non-Indigenous fishers can work side by side in the commercial fishery, under a unified conservation and fishery management regulatory regime. The UFCA recognizes and acknowledges that Indigenous fishers have a right to equitable access to the fishery, and the right to fish for food, social and ceremonial purposes.

“As Canadians, we can deal with this problem through dialogue and we will get something equitable for everybody but in the meantime, the truth is it’s a dismissal situation right now and a dangerous situation because people on both sides feel their livelihoods are at stake and rightfully so,” said Sproul. 

“The federal government’s refusal to act with their authority in the best interest of everyone is what’s led to the problem and they are still on the same page, especially with the election coming on. We all fear there will be even more refusal to enforce Canadian fishing law and feel it’s a pretty legitimate fear given what we saw last year.”

The day after the federal election call was made (Aug. 16), the Sipekne’katik First Nation launched what it called a treaty fishery in St. Mary’s Bay. Federal authorities were swift to action, seizing gear and arresting Chief Mike Sack for allegedly inciting an illegal fishery.

“Today marks a new milestone in a long history of broken trust between Indigenous people and the Government of Canada. A government that pledged its commitment to truth and reconciliation has failed again to live up to its promise,” said Chief Sack in a statement following his arrest.

As for DFO, in June, then Fisheries Minister Bernadette Jordan announced an understanding had been reached with Potlotek First Nation that will allow harvesters designated under Potlotek’s Netukulimk Livelihood Fisheries Plan to be authorized to fish 700 lobster traps without adding additional access and during the established season underway in Lobster Fishing Areas 27, 28, 29, 30 and 31a — which is within the Unama’ki region and aligns with Potlotek’s identified traditional district. The Unama’ki region is one of the seven Mi’kmaq districts in Atlantic Canada and Quebec and spans Cape Breton Island. 

“In acknowledging that this is an interim measure, we are committed to continuing consultations with the community moving forward, including about community concerns on access,” said Jordan. “In working together to implement this moderate livelihood fishing plan, we will lay the groundwork for future advancements. Reaching this understanding, which recognizes the rights and interests of Indigenous communities, will help to further advance Potlotek’s vision of self-determination and economic self-reliance.”

Potlotek First Nation Chief Wilbert Marshall said more discussions will need to be had on future seasons and fisheries. “We know that this is an interim solution, but it is a good first step. We wanted to see our people be able to earn a good, honest living. For us, that included doing so through what has been a part of our culture since time immemorial — fishing.”

A Rights Reconciliation Agreement on Fisheries was also reached between DFO and the Listuguj Mi’gmaq Government (LMG) in Quebec in April, setting the base for a collaborative management approach and providing a framework for operational discussions on fall lobster fishing between LMG and Fisheries and Oceans Canada. That announcement was followed up by another in August that DFO has reached an agreement with the LMG to authorize a short commercial lobster fall fishing season in LFA 21B to help provide the community more flexibility in undertaking its fishing activities. 

“This short fall commercial season is not a new fishing activity, but simply authorizes the catch to be sold. LMG has conducted a fall FSC (food, social, ceremonial) fishery and provided catch data for the past 20 years,” states the release. Of the six LFA 21B licenses, five are held by LMG and one is held by a non-Indigenous license holder.

Up until Sept. 26, DFO was also offering “an opportunity to relinquish licences/quota through a process being conducted by DFO Maritimes Region — Indigenous Fisheries Management” in support of the federal government’s commitment “to expanding opportunities for Indigenous peoples to participate in rights-based fisheries, including fishing in pursuit of a moderate livelihood.”

Meanwhile back in southwestern Nova Scotia and the Bay of Fundy, Sproul said the situation is tense. “It’s a powder keg on the Fundy shore right now. There are 45 commercial vessels fishing between Margaretsville and Yarmouth. There’s six in Margaretsville and around 10 below Yarmouth that have had zero enforcement. All DFO assets in the region are concentrated in St. Mary’s Bay and it’s still a pittance compared to what’s needed to deal with the problem. We’ve seen open admissions by multiple officials that Sipekne’katik First Nations is selling a portion of their FSC fishery in violation of licence conditions but no action is being taken against the licence itself by the Minister so (DFO) is still advocating their authority to enforce the FSC fishery and the result is a gross abuse of it by a minority of people that are damaging lobster breeding ground.”

The UFCA includes members from: Bay of Fundy Inshore Fishermen’s Association, Brazil Rock 33/34 Lobster Fishermen’s Association, Coldwater Lobster Association, Scotia Fundy Inshore Fishermen’s Association, Cape Breton Fish Harvester’s Association, Eastern Shore Fishermen’s Protective Association, Fundy North Fishermen’s Association, Guysborough County Inshore Fishermen’s Association and Richmond County Inshore Fishermen’s Association.