The Canadian lobster industry is in turmoil over Indigenous fishing rights.
In 1999, the Canadian supreme court ruled that Mik’maq and other First Nations had harvest rights that had to be recognized by the Canadian government. For decades, this was never implemented.
For that reason, the Sipekne’katik First Nation began a test case, issuing 11 licenses themselves, limited to 50 traps each and began to fish lobster in Southwestern Nova Scotia during the closed season. This led to the burning of lobster pounds, attacks on boats and gear and threats to any entity that purchased these lobsters.
This is not a unique problem, nor a unique response.
The 1975 Boldt Decision in the U.S. that upheld tribal fishing rights in Washington state, also saw beatings, arrests and breakups of native fishing camps.
The assertion of First Nation or aboriginal rights that had long been suppressed is happening in many countries where Europeans erased these rights over centuries. Such is the case in the United States, South Africa, New Zealand and Canada, among others. Many governments see this as a civil rights issue and are supportive of remedial action.
But in terms of fisheries, no one who has existing quota is willing to give it up without a fight.
In Shippagan, New Brunswick, in 2003, a brand-new Daley Bros. crab plant was burned to the ground during a riot after the company contracted with three vessels on loan to Elsipogtog First Nation, as the Canadian government tried to revise crab quotas.
There were also huge fights in the Gulf over the expansion of crab quotas to temporary license holders, and the efforts of the government to make them permanent.
Also, in Newfoundland, the reduction in inshore shrimp quotas due to stock decline has sparked huge fights against offshore quota holders, even as the original expansion of inshore shrimp licenses was specifically in a last in, first out system.
So, the violent reaction of Nova Scotia lobstermen has a long history.
But that does not mean First Nations’ rights should be ignored. The fact that these fishing rights have not been honoured does not make them moot.
There are a number of examples of successful integration of First Nation sovereignty over their fishing rights with the larger commercial fisheries community. It may be helpful to review them.
Washington State Tribal Fisheries
This fall is the 50th anniversary of the violent breakup of the tribal fishing camp at the Puyallup River Bridge that sparked the lawsuit that resulted in Judge Boldt’s decision upholding the fishing rights of nearly 20 Western Washington tribes based on treaties signed with the federal government.
Since then, the tribes have become co-managers with Washington state and have treaty rights to 50 per cent of the salmon harvest. Some of the larger tribes have hired fisheries managers and have full resource and conservation departments.
However, 50 per cent of nothing is nothing and Washington state salmon fisheries have been decimated by loss of habitat. This led the tribes to sue the state over failure to modify road culverts, so as to ensure salmon migration. This suit was successful at the U.S. supreme court and Washington has a program to upgrade road culverts over the next 10 years that will cost upwards of $2 billion.
In this case, the interests of the tribal fisheries and other Washington commercial fishermen are the same — protect and enhance the resource.
The Washington tribes also participate in other fisheries, such as Dungeness crab, halibut and sablefish, and sell through tribal-owned companies and non-tribal commercial buyers.
The key point is that there is a mechanism for overall fisheries management where the commercial fishery seasons are the same for tribal and non-tribal harvesters and the ceremonial and cultural use of fish is allowed in a manner that does not infringe on the commercial harvests.
In Canada, the failure to more clearly define subsistence or non-commercial use and commercial use for economic gain has unnecessarily exacerbated the conflict.
CDQ Fisheries in Alaska
Alaska is unique in the U.S. in that there never were territorial agreements between the U.S. government and native inhabitants.
In 1971, congress passed the Alaska Native Claims Settlement Act, which extinguished aboriginal land titles and resource claims in Alaska. This was necessary to build the oil pipeline to Alaska’s North Slope.
In exchange, 12 regional corporations and more than 200 village corporations were formed and tasked with dual mandates: create economic opportunities through for-profit enterprises and support shareholders through educational opportunities, scholarships, elder benefits and social and cultural programs. The government transferred 44-million acres in direct ownership and paid nearly $1 billion in 1971.
In 2017, the 12 native corporations had combined annual revenues of $8.4 billion. The net profit from these returns is what funds many local activities.
When the Settlement Act passed, there was almost no Alaskan fishing in the Bering Sea. As the fishery developed and became Americanized, the Western Alaska villages faced being shut out of the economic benefits.
The idea for the Community Development Quota (CDQ) program was to ensure participation in the fishery by villages that historically depended on Bering Sea and Aleutian Islands (BSAI) fisheries.
In order to qualify for the CDQ, communities had to be located within 50 miles of the coast, certified under the Alaska Native Claims Settlement Act and reliant on BSAI fisheries for at least half of their fishing. The 65 villages that qualified were divided into six regional CDQ groups, who initially were allocated 7.5 per cent of the Bering Sea pollock quota in the 1990s.
The program was very successful in improving economic conditions in these villages which suffered from extreme poverty. By 2006 the quota shares were increased to 10 per cent and expanded to include all the BSAI fisheries, including crab, halibut etc…
Because of their quota rights, they had significant negotiating leverage with partners in the Alaska commercial fisheries. Initially, they partnered by offering their quota shares to the existing companies for production and marketing. But over time, they were able to buy out a significant percentage of their partners and now in many fisheries, CDQ-affiliated companies harvest 25 to 50 per cent or more of the specific fishery.
During this time, Alaska fisheries have grown as well, with the pollock, crab and sablefish being especially profitable.
The key message here is that government support for a successful economic integration led to a realistic sharing of the value of the BSAI fisheries with Alaska native groups. It was easier because it was done while the Alaskan fisheries were being developed and not after the fact when long established practices and historical allocations already existed.
At the time of the pollock allocation, the entire division of that fishery was up for grabs between the inshore and offshore sectors and it gave native advocates huge leverage in Washington, as all parties depended on a government resolution to the allocation questions.
Clearwater
Finally, there is the recent example of Clearwater.
Clearwater is the largest vertically integrated Canadian fishing company focused on shellfish. Clearwater has done a better job at integrating First Nations’ demands for equity in fisheries than the entire Canadian government.
The biggest weakness in the Canadian system is that until the recent Fisheries Reform Act, there was immense pressure to settle all fisheries questions as political favours. The fisheries minister at the federal level had absolute authority over allocation of quotas, the setting of quotas and the annual renewal of licenses.
This led to abuse. In some cases, it led to overexpansion of fisheries and or processing licences. In others, it led to poor and non-transparent fishery decisions.
The most spectacular failure recently was the corrupt attempt to let a consortium of favoured First Nations work with a straw company connected to the federal minister and grab 25 per cent of the arctic surf clam allocation from Clearwater.
As part of its commitment to expand first nation access, the government of Prime Minister Justin Trudeau announced that it would open a bid process for a portion of the arctic surf clam quota, of which Clearwater, with three clam vessels, was the only current active license holder.
Clearwater put together a bid with a group of First Nations that would have shared the economic value, but retained the current structure of the fishery. Instead, the award was made to a company that failed on paper to meet the bidding criteria. Even worse, it involved a relative of Dominic LeBlanc, fisheries minister, from his home riding in New Brunswick. He was later found to have violated ethics rules and is no longer fisheries minister.
The ham-handed government attempt collapsed under this cloud of malfeasance and Clearwater than took the initiative to negotiate a 50-year agreement with 14 First Nations in Nova Scotia and Newfoundland that would provide millions of dollars of annual revenue sharing, plus access to business such as supplying the fishery.
Chief Terrance Paul of Membertou First Nation and co-chair of the Assembly of Nova Scotia Mi’kmaq Chiefs said nothing like this had been done in the industry before at this level of collaboration between a traditional commercial player and First Nations partners.
In this case, the economic partnership, similar to those in Alaska, would provide long-term benefits, structural stability to the fishery and it could serve as a model for other collaboration.
However, it was possible because Clearwater had an existing monopoly on clam licenses. The same issue is being resolved with offshore lobster, where there are only eight licenses, all of which have been bought up by Clearwater. Now they are negotiating the sale of some of these licenses to First Nations.
However, with both arctic surf clam and lobster, these two deals involve marketing partnerships that preserve value, rather than erode value. In fisheries, secure control over a resource results in very large long-term economic benefits, as can be seen in the pollock fishery in Alaska and in the offshore lobster and arctic surf clam fisheries in Canada.
By integrating First Nations into these existing structure, the value of the fishery is maintained and shared, rather than diminished.
How Can this Work for the Lobster Fishery?
The big difference between the lobster fishery and the Bering Sea and surf clam fisheries is that the lobster fishery is decentralized across thousands of harvesters and a number of lobster buyers.
There is no fixed quota. And while the other fisheries require huge capital investments and are consolidated around a few companies, the lobster fishery has many players, including new companies focused on sales to Asia, for example.
In the same vein, the Washington State tribal fisheries are not monolithic either. There are a large number of smaller-scale commercial fisheries in Washington, from salmon to crab to halibut and sablefish, in which there is now tribal participation.
It seems the first step needed is true integration into the management system. But in Canada, the First Nations also need to be treated as sovereign partners. The Department of Fisheries and Oceans (DFO) is not set up to do this because it is not able to share decision making.
In a shared management system, there would be room at the table for existing lobster industry groups, First Nations and provincial and federal managers. At the moment, the centralized power of DFO in lobster management is a hinderance to a resolution.
A shared management system could determine, for example, whether a small-scale removal for local use was in fact a threat to the overall health of the stock, or not. Such a system could also determine that the same management system would apply across all commercial users, including First Nations commercial users.
A second step would be to adopt more regulatory control over lobster. The current tools used by DFO include closed seasons, carapace size and trap limits. Also, when there is a lobster glut, buyers have sometimes instituted trip limits.
Are these the best tools for ensuring the long-term health of the lobster population?
Australia and New Zealand, for example, operate on a strict individual fishing quotas system. This has not prevented stock declines, but it has meant that stock declines can be better managed.
The Canadian and U.S. system is not equipped at all should lobster populations in the Gulf of Maine begin to drop due to continued warming beyond the current level.
As populations fall, some localities are hit harder than others and this opens up the prospect of major gear conflict around access to the more productive areas.
And, of course, there is the right whale issue. How right whale protections could impact the lobster industry is another source of tension.
First Nation fishing rights are here to stay. It will be up to the stakeholders to negotiate clear paths forward for sharing and resource allocation. The more this happens in a bottom-up fashion involving local negotiations and accommodation, the better. The more it is top down from DFO, which has a terrible track record, the more likely turmoil will continue.
The best path for DFO is to take seriously the fact that they need to negotiate a global settlement around lobster rights that preserves both equity and fisheries management. They cannot do this behind closed doors in a minister’s office making political tradeoffs. They must do this fully transparently in the open. That is the best hope for a resolution.
This article was republished with permission of John Sackton and seafood.com.
