Above Photo: People in support of the moderate livelihood fishery launched by the Sipekne’katik First Nation watch from the rocks near the Saulnierville wharf on St. Mary’s Bay in Digby County. Kathy Johnson photo
Moderate Livelihood Fishery Launched by First Nations Creates Unknowns, Confusion and Conservation Concerns for Industry
There are more questions than answers in the wake of the self-regulated, moderate livelihood fishery launched by two First Nations bands in Nova Scotia on Sept. 17 and Oct. 1.
After 21 years of waiting for the federal government to establish regulations for a moderate livelihood fishery as affirmed by the 1999 Marshall decision, 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 Shubenacadie-based Sipekne’katik First Nation launched its moderate livelihood fishery in St. Mary’s Bay in Southwestern Nova Scotia on Sept. 17. The Potlotek First Nation in Cape Breton took to the waters of St. Peter’s Bay on Oct. 1.
Both bands are fishing for lobster in lobster fishing areas (LFA) that are closed to the commercial fishery for conservation reasons.
“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.
A coalition of 13 Atlantic and Québec fishing organizations don’t see it that way.
“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 the coalition.
“According to the Department of Fisheries and Oceans (DFO) 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 alleged, 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, MFU local 9 President.
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 fisheries with one set of rules driven by conservation and respected by everyone,” stated the Coalition.
“We need any fishing outside of the established fishing season to stop immediately and for DFO to enforce one set of the rules for everyone,” said Berry.
“Both Indigenous and non-Indigenous fishermen have a common interest to conserve and protect the fishery. That starts with dialogue and cooperation and we are calling on the Government of Canada to listen to fishermen and to bring Indigenous leaders and fishing organizations to work together directly.”
The Coalition also points out that the recent Speech from the Throne states in part: “the Government will look at continuing to grow Canada’s ocean economy to create opportunities for fishers and coastal communities, while advancing reconciliation and conservation objectives. Investing in the Blue Economy will help Canada prosper.”
The Coalition says it recognizes the statement as an important first step. “We support advancing both reconciliation and conservation of the fishery together,” said Comeau.
“However, we still need action from the Government of Canada and action is needed now. This starts with bringing together the Government, Indigenous Leaders and fishing organizations to directly develop solutions to manage the fishery. Discussions about the management of the fisheries that ignore commercial fishermen will be unsuccessful in bringing long-term peace and reconciliation in coastal indigenous and non-indigenous communities.”
Aside from three statements issued by federal Fisheries Minister Bernadette Jordan as of Sept. 21, DFO has remained mute about the legality of the self regulated, moderate livelihood fishery launched by First Nation bands. This has created a grey zone, where Nova Scotia lobster buyers can’t even legally buy any catch landed by First Nations in the moderate livelihood fishery, without contravening the provincial Fish Buyers’ Licensing and Enforcement Regulations.
“The federal government and the Mi’kmaq of Nova Scotia are responsible for answering the question of what constitutes legal harvesting under a moderate livelihood fishery,” said Bruce Nunn, spokesperson for the Nova Scotia Department of Fisheries and Aquaculture in an email.
“As a province, our regulatory responsibilities are around health and safety to protect consumers, quality of the product, and the orderly development of the seafood industry,” said Nunn.
“The Nova Scotia Fisheries and Coastal Resources Act and its associated regulations establish the rules and licensing requirements for anyone buying fish in the province. They rely on DFO’s authority and responsibility to manage the fishery and identify what are legal, licensed fisheries.”
Under the Supreme Court’s Marshall Decision, First Nations have an affirmed treaty right to hunt, fish and gather in pursuit of a ‘moderate livelihood,’ said Magalie Ratnayake, DFO media relations.
“Canada stands ready to work with First Nations to explore and discuss how to implement this right, while supporting a safe and orderly fishery. The Minister of Fisheries and Oceans Canada and departmental officials are in constant communication with First Nations leadership, working on a collaborative path forward. These conversations will continue.”
Statements by Minister Jordan
The first statement issued by Minister Bernadette Jordan on Sept. 17 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.”
The Coalition of Atlantic and Québec
Fishing Organizations
- Bay of Fundy Inshore Fishermen’s Association (BoFIFA)
- Brazil Rock 33/34 Lobster Association
- Cape Breton Fish Harvesters Association (CBFHA)
- Coldwater Lobster Association (CLA)
- Eastern Shore Fishermen’s Protective Association (ESPFA)
- Fundy North Fishermen’s Association (FNFA)
- Gulf Nova Scotia Bonafide Fishermen’s Association (GNSBFA)
- Gulf Nova Scotia Fleet Planning Board (GNSFPB)
- Guysborough County Inshore Fishermen’s Association (GCIFA)
- Maritime Fishermen’s Union (MFU)
- PEI Fishermen’s Association (PEIFA)
- Regroupement des pêcheurs professionnels du sud de la Gaspésie
- Richmond County Inshore Fishermen’s Association (RCIFA)
- Scotia Fundy Inshore Fishermen’s Association (SFIFA)
