Current Problems

Treaties and Land Claims

Conflict over new Indigenous lobster fishery continues to smoulder amid some progress

December 19, 2022

Toronto Star: HALIFAX – Federal conservation officers have seized more than 7,000 lobster traps in the two years since violence flared in Nova Scotia when a First Nation tried to assert a treaty right by fishing out of season.

Earlier this month, the Department of Fisheries and Oceans confirmed it had confiscated almost 2,000 traps this year alone, a figure that shows the dispute between Ottawa and some Indigenous fishers has not gone away — despite DFO’s best efforts to keep a lid on tensions.

“Gear is still being cut by non-natives and DFO is still seizing traps,” said Hubert Nicholas, fisheries director with the Membertou First Nation in Cape Breton. “The non-natives allowed us to fish for a few days (in 2020) … But every time somebody put a trap in the water, they were cut … We heard about someone pointing a gun at somebody here just a couple of months ago.”

Tim Kerr, DFO’s director of conservation and protection in the Maritimes, said the department has stepped up patrols in the region to ensure safety and compliance with the rules. “We’re committed to the maintenance of an orderly fishery,” he said in a recent interview, adding that officers are also educating non-Indigenous fishers about treaty rights.

One band’s expression of those rights attracted national attention in September 2020, when the Sipekne’katik First Nation started a pioneering self-regulated lobster fishery. Non-Indigenous fishers in southwestern Nova Scotia complained the band had no right to do so because the season was closed on St. Marys Bay.

There were confrontations on the water, rowdy protests and riots at two lobster pounds, one of which was later razed by a deliberately set fire. Charges were laid. And the then-chief of Sipekne’katik First Nation, Mike Sack, filed a lawsuit against the RCMP and some fishers.

The ugly scenes were a replay of the violence that erupted in eastern New Brunswick in 1999 when some First Nations started fishing without licences immediately after the Supreme Court of Canada decided they had a treaty right to fish when and where they wanted.

The Marshall decision said the Mi’kmaq, Maliseet and Passamaquoddy bands in Eastern Canada could hunt, fish and gather to earn a “moderate livelihood,” though the court followed up with a clarification two months later, saying the treaty right was subject to federal regulation.

That additional ruling remains at the crux of the argument being made by non-Indigenous fishers, who say First Nations must abide by Ottawa’s conservation measures, which include limiting all fishing to regulated seasons. “The resource is big enough to sustain us all if we focus on conservation first and not politics,” said Colin Sproul, president of the 1,900-member Unified Fishery Conservation Alliance — the largest fisheries advocacy group in the Maritimes.

“We believe in one resource, one fishery and one set of management plans.”

In the wake of the Marshall decision — named after Nova Scotia Mi’kmaq activist Donald Marshall Jr. — the federal government has spent more than $630 million on helping Indigenous communities participate in various fisheries by purchasing boats and gear for them.

The Fisheries Department has also struck a number of long-term fishing agreements with some First Nations, said Mike Leonard, director of Indigenous fisheries management in the Maritimes.

And in March 2021, Ottawa introduced an “optional path” for First Nations hoping to pursue a moderate livelihood fishery. The department started approving interim plans drafted by each band, but DFO has made it clear that fishing will be limited to the federally regulated seasons.

“It’s being done in a way that meets the communities’ plans and aspirations,” Leonard said in a recent interview. “We have reached out to all First Nations in the region and offered the opportunity to discuss moderate livelihood fishing plans and reaching understandings.”

So far, the department has granted moderate-livelihood licences to eight First Nations — seven in Nova Scotia and one in P.E.I., though the Sipekne’katik and Membertou bands are not among them.

Sack, who last month lost his bid for re-election as Sipekne’katik’s chief, has long argued that the Marshall decision specifically exempts First Nations from seasonal restrictions.

All of the First Nations in Nova Scotia with interim agreements ignored interview requests. The Kwilmu’kw Maw-klusuaqn organization, which advocates on behalf of the Mi’kmaq in Nova Scotia, also remained mute.

Andrea Paul, chief of the Pictou Landing First Nation, confirmed in an email that her band had reached an interim agreement with Ottawa and that it “has been peaceful on the water.”

Sproul, a boat builder and lifelong lobster fisherman, said the interim agreements represent a step forward.“There’s been broad-based support among non-Indigenous fishermen for these understandings,” Sproul said in a recent interview. “There has been a general calm that has returned to the fishery, which I think is related to a reduction in illegal fishing in some places.”

Despite the progress made this past year, some Indigenous critics have accused DFO of moving too slowly on implementing the Marshall decision. But the department says it isn’t dragging its heels.

“DFO … is interested in longer-term solutions,” said Leonard. “An interim, year-to-year approach is progress towards meeting those needs. But I think everybody recognizes that having something more long term is preferable.” 

This report by The Canadian Press was first published Dec. 19, 2022.