While reports have been filed and a newly-minted Lobster Science Partnership Roundtable held, the stand-off continues for some First Nations and the federal fisheries department on the implementation of a treaty-based moderate livelihood fishery.
Even the United Nations has become involved.
Going into June, it was anyone’s guess what was going to happen in St. Mary’s Bay, Digby County, which has become ground zero for the on-going stand-off.
Chief Mike Sack of the Sipekne’katik First Nation announced on May 27 that instead of relaunching its self-regulated moderate livelihood fishery on June 1 in St. Mary’s Bay, it would instead fish with food, social and ceremonial (FSC) tags.
“Sipekne’katik’s fisheries department will issue up to 1,300 FSC lobster trap tags to community members for active fishing to commence on June 1, 2021. Sipekne’katik tags are obtained through the Confederation of Mainland Mi’kmaq and the FSC fishery is legally recognized by DFO,” states a media release.
The same day, federal Fisheries Minister Bernadette Jordan announced the launch of the Lobster Science Partnership Roundtable.
“On June 15, Fisheries and Oceans Canada scientists, Indigenous partners, commercial fishing representatives and other key researchers will come together to discuss their most important research questions and priorities, with the shared goal of increasing our knowledge around lobster stocks,” reads the press release.
“This forum will offer the opportunity to discuss key topics including the impacts of climate change on lobster, how changes in habitat might affect lobster populations in the future, how lobster move throughout the year, and the direct impact fishing is having on populations. The more information we have in these areas, the better decisions we make, and the better we can manage the lobster fishery in the future.”
Then there is the Report of the Standing Committee on Fisheries and Oceans, Implementation of the Mi’kmaw and Maliseet Treaty Right in Fish in Pursuit of a Moderate Livelihood, tabled in Parliament on May 13, which was accompanied by dissenting opinions from the Conservative Party of Canada and the Bloc Quebecois.
The report containing 40 recommendations has drawn sharp criticism from Alan Clarke, a retired fishery officer who was also the Southwest Nova Scotia DFO Area Chief of Enforcement during his 35-year career.
Clarke gave testimony to both the 1999 and the 2020 Standing Committees on Fisheries and Oceans that have dealt with the implementation of the Supreme Court Marshall decision.
“The 2021 committee failed in their core responsibility of protecting the sustainability of the fisheries resources on behalf of all Canadians, Indigenous and non-Indigenous alike,” said Clarke.
“It also appears that they did not even adhere to the study’s motion. I also found the 40, 2021 committee recommendations full of useless redundancies, inaccuracies, one-sided opinions and misleading assumptions. Instead of attempting to fine tune the recommendations in the 2000 report and build on the progress that had been made in the past 20 years, the existing Liberal members on the 2021 Committee apparently chose not to address conservation concerns, instead choosing to kick the dismantled conservation can down the road.”
Clarke said he finds himself “driven to the Conservative and the Bloc dissenting opinions and recommendations contained in the 2021 Report. At least it appears they listened to, understood and considered all the evidence that was put before them.”
Clarke said in his view, the 2021 report is “a complete disservice to all Indigenous and non-Indigenous fishers, all fisheries stakeholders, coastal fishing communities and indeed all Canadians and most importantly our vulnerable fisheries resources.”
The 2021 report, unlike the 1999 committee report, did not even mention the FSC fishery, said Clarke, “let alone make specific recommendations surrounding the conservation, enforcement and non-compliance problems that it creates. The overwhelming evidence presented to both the 1999 and 2021 Committees was that the FSC being authorized during the closed lobster season was the catalyst to increased illegal fishing, catching, selling and buying of unrecorded lobsters.”
Clarke said it is his understanding that since his retirement in 2014, “there has been a steady increase in the number of lobster traps authorized in the FSC fishery to the point where commercial quantities are now being caught. There is no doubt in my mind that this has contributed to increased non-compliance and unauthorized fishing of lobsters by both Indigenous and non-Indigenous fishers and poachers,” he said.
“In my experience it is actually the non-Indigenous buyers who with their demand for illegal lobsters are driving up the supply. The illegal buyers are actually the ones who are benefiting the most financially with buying illegal FSC lobsters and reselling them at much higher prices. As demand for illegal lobsters increases, so does the supply, resulting in an increase to a large extent of non-Indigenous lobster poaching to fill that demand. As a consequence, there is an increased amount of illegal lobsters being harvested during the closed conservation seasons with unrecorded catches. The 2021 Committee’s failure to comment on the FSC fishery or to make specific recommendations to deal with the non-compliance will in my view still result in a substantial illegal commercial fishery under the guise of a food fishery.”
COALITION RESPONSE
In response to the standing committee report, as well as the report by federal special representative Allister Surette, the Coalition of Atlantic and Québec Fishing Organizations is calling for a pause and reboot of the ongoing negotiations between First Nations and DFO.
“Currently, there are ongoing secret negotiations taking place between 35 First Nations and DFO on fisheries management without formally consulting commercial fishing organizations and Canadians,” states a May 19 media release from the Coalition, which represents the Gulf Nova Scotia Fleet Planning Board (GNSFPB), Maritime Fishermen’s Union (MFU), P.E.I. Fishermen’s Association (PEIFA) and Regroupement des pêcheurs professionnels du sud de la Gaspésie (RPPSG).
“These negotiations potentially include transferring the conservation authority of DFO to First Nations and outside of the oversight of the Government of Canada. Contrary to the approach of previous federal governments, these 35 negotiations are not transparent with no formal consultation with commercial fishing organizations, which is contrary to the Surette Report. This needs to change.”
The Coalition says commercial fishing organizations “agree with recommendations that there is a need for more formal, transparent, and open dialogue with all stakeholders,” but notes that both reports “lack detail on an orderly formal negotiations process for First Nations leaders, commercial fishing organizations and DFO to directly work together. This must be transparent and include substantive communication and dialogue as opposed to the current DFO approach, which is informal, fragmented and does nothing to solve the issues at hand.”
The Coalition says it believes the government should immediately “pause any negotiations with First Nations on changes to the fisheries that impact the management and conservation of the resource that we all share. The reboot in negotiations would then need to include independent facilitators agreed upon by Indigenous groups and fishing organizations and direct discussions between the Government of Canada, Indigenous leaders and commercial fishing organizations.”
FEDERAL AUTHORITY
On March 3, Fisheries Minister Bernadette Jordan issued a statement that that moderate livelihood fisheries will have to operate within established seasons, noting in Marshall II, the Supreme Court clearly stated, “treaty rights are subject to regulation provided such regulation is shown by the Crown to be justified on conservation or other grounds of public importance.”
When the Sipekne’katik First Nation launched its self-regulated moderate livelihood fishery last September outside of the commercial season, conflict followed with acts of violence, damage to property and claims of racism.
A team comprised of Mi’kmaq legal counsel, human rights experts, Justice for Girls and community members, have made a submission to the United Nations Committee on the Elimination of Racial Discrimination (CERD) with regards to last fall’s fiasco.
In a letter to the Canadian Ambassador to the United Nations, Leslie Norton, CERD has requested a response by July 14 to the allegations.
“In particular, it (the committee) requests the State Party to provide information on measures taken to:
(a) Investigate the alleged acts of racist hate speech, violence and incitement to violence, as well as the destruction of property by private actors against Mi’kmaw indigenous peoples.
(b) Investigate the alleged lack of adequate response by relevant State Party authorities to effectively prevent and protect Mi’kmaw Indigenous peoples from such acts.
(c) Prevent further acts of violence, racist hate speech, incitement of violence and destruction of property against Mi’kmaw indigenous peoples.
(d) Respect, protect and guarantee the rights of Mi’kmaw peoples in relation to their fishing activities and territories, as well as their rights to be consulted, to food and cultural rights, including the measures taken to repeal federal and provincial laws, as well as policies and regulations that unduly limit such rights,” states the letter signed by CERD chair Yanduan Li.
“The Committee also requests the State Party to provide details on the status of the treaties concluded between 1760 and 1761 and the implementation of Mi’kmaq fishing rights under such treaties.”
POTLOTEK’S NETUKULIMK LIVELIHOOD FISHERIES PLAN
In a related announcement on June 4, Jordan stated that DFO had reached an understanding that will see Potlotek First Nation fishing for a moderate livelihood and selling their catch starting June 5, 2021.
In a press release, DFO said that Potlotek’s Netukulimk Livelihood Fisheries Plan, which was developed by the community with support from the Assembly of Nova Scotia Mi’kmaw Chiefs and Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO), speaks to the moderate livelihood fishing aspirations of the community.
“As an interim measure, we will be recognizing those harvesters designated under Potlotek’s plan to be authorized to fish 700 jakej (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,” Jordan said.
“This marks an important step forward that demonstrates Canada’s willingness to listen to the individual needs of communities, to support their vision, and find common ground that maintains a sustainable fishery and sees community members on the water and able to sell their catch. 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,” the minister explained.
