treaties and traps

SOURCE: Pixabay


Without good data and an actual definition of what a ‘moderate livelihood’ is, negotiations to settle the Nova Scotia lobster dispute are liable to be slippery.

<p>Communities across the east coast of Canada rely on a functioning fishing industry for economic stability and to preserve a way of life that goes back generations, and for some millennia. The identities of Indigenous and non-Indigenous fishermen alike are rooted in these fisheries- chances are their father was a fisherman, and their fathers’ father was a fisherman, and so on.

Coming from a multi-generational farming family in southwestern Ontario, this feeling of pride and emotional ties to your trade is something I can understand. There is nothing more fundamental than feeding people, of being part of the table where families congregate while dishes are served (and enjoyed).

If you were to spend time in Nova Scotia, you would find examples of this pride in their flourishing lobster fisheries. Unfortunately, in the last month or two, Nova Scotia’s lobster industry has been the focus of what CBC has called a “decades-old standstill on fishing rights” between the Indigenous and non-Indigenous fishermen in the province. As a result, communities like New Edinburgh and West Pubnico (in the southern end of the province near St. Mary’s Bay) have been epicentres for escalating tension and unfortunately, rising violence.

To comprehend what is going on, we must first look back and understand how we got here.

In 1999, the Supreme Court of Canada ruled that an Indigenous fisherman, named Donald Marshall Jr., had the right to fish for eels without a license based on his historical treaty rights (from the 1760-61 treaty). As a result of what is now known as the Marshall decision, Indigenous bands like the Mi’kmaq, Maliseet and Passamaquoddy, could hunt, fish and gather, independent of the Department of Fisheries and Oceans (DFO) regulations -like fishing outside the normal fishing season for example- in order to earn a “moderate livelihood”.

A short time later, the court modified the ruling, stating that the Indigenous bands still have a treaty right to fish outside of DFO regulations, but the DFO could regulate these activities for the purpose of conservation (see Marshall 2 for more on this case). Remember this part, it is important later.

Mi’kmaq First Nations in Nova Scotia // SOURCE: The Halifax Examiner

While this all seems reasonable at first, the court never provided clarification as what “a modest livelihood” entails, and to this day, the confusion remains.

“DFO and the bands haven’t actually agreed on what a moderate livelihood is,” says Aaron MacNeil, Associate Professor and Research Chair in Fisheries Ecology at Dalhousie University, “It’s the million-dollar question, what is a moderate livelihood?”

In 20+ years that followed the Marshall decision, the Crown spent $540 million buying licenses and transferring them to the Indigenous fishermen as commercial fishing licenses. As a result, by 2018, the bands had a total of 320 fishing vessels. Is this what the DFO envisioned as a “modest livelihood”? I am not sure.

The Mi’kmaq have maintained that this does not address their right to a “modest livelihood” through a self regulated fishery.

In more recent news, Mike Sack, Chief of the Sipekne’katik First Nation (a Mi’kmaw community in New Edinburgh, Nova Scotia), said in an interview that since the federal government won’t clarify the definition of a “moderate livelihood”, they will define it themselves. On the 21st anniversary of the Marshall ruling (September 17th), the Sipekne’katik First Nation decided to launch their own governance plan and create a self-regulated lobster fishery.

While lobster season hasn’t technically started yet, Indigenous fishermen from this new fishery (and other Indigenous fisheries) are able to exercise their treaty right and begin their fishing season early. For a bit of background, the normal fishing season for lobster is closed from May 31 to late November. Why? This time of the year happens to be a particularly significant time during the lobster mating cycle.

As a result, the new moderate livelihood fishery has been met with fierce opposition from non-Indigenous fishermen, voicing their concerns that this decision would put the health of the species in jeopardy (remember, the second part of the Marshall ruling states that the DFO can intervene in Indigenous lobster fishing if the conservation of the species is at risk).

The Coldwater Lobster Association issued a statement voicing their stance mid October, stating; “The evidence of out-of-season fishing, the retention of undersized and egg-bearing females, and the total disregard for DFO’s role in managing the lobster resource cannot continue.”

Rising tension between fishermen near St. Mary’s Bay // SOURCE: The Star

For the non-Indigenous fishermen’s claims to have any grounds, one would have to confirm the conservation of the species is in fact at risk by the early fishing that is currently taking place by the Indigenous bands.

Aaron MacNeil explained that while catches per boat have been going down in the last year or two,  “that’s kind of the type of fluctuation you expect in a fished population,” he says, “where it’s problematic is if you saw a decline year after year. That is the point at which fishery science would say ‘okay what is going on here?’” MacNeil explained lobster is the most productive and valuable fishery in Canada, “it’s basically full throttle right now,” he says.

Even if [St. Mary’s Bay] was overfished, you are talking about a stock that is absolutely booming right now. The conservation of the species is not at risk. – Aaron MacNeil

In fact, MacNeil says the species is so abundant, there is no quota on how many lobsters you can catch. “I can’t think of another fishery in the world that is so valuable that has no quota” he says, “The reason is right now we are in a boom phase for lobster…even if [St. Mary’s Bay] was overfished, you are talking about a stock that is absolutely booming right now. The conservation of the species is not at risk.”

MacNeil stated that he doesn’t believe we should be worried until we see an ongoing trend of catch per boat decline.

Others echo this sentiment that the effect the Mi’kmaw fishermen have on the species is likely relatively small. According to the Atlantic, “The Sipekne’katik fleet includes 10 boats with 50 traps each, which is equivalent to the catch of about two of the roughly 944 commercial lobster licences granted to non-Indigenous harvesters in the area.”

Rather than conservation, the frustration of the non-Indigenous fishermen more likely stems from an ongoing debate between the two sides that precedes the creation of the new modest livelihood fishery.

“What the main commercial fishermen tell us they’re angry about is the number of traps set in [St. Mary’s Bay] over the summer, and what they are referring to there is a Food, Social and Ceremonial (FSC) fishery that operates in the bay,” MacNeil says, “I think the new moderate livelihood fishery was just the spark that ignited what was already there; this year on year growing resentment about the perceived magnitude of the FSC fishery.”

I think the new moderate livelihood fishery was just the spark that ignited what was already there; this year on year growing resentment about the perceived magnitude of the FSC fishery. -Aaron MacNeil

He continued, “I think there is a lot of discomfort from some people that first nations people have a different set of rights than non-native people, but that’s a consequence of how Canada was built and you have to accept that.”

It seems that a handful of fishermen have had a tough time accepting this and over the last month, violence has escalated in the province.

On October 13th, a Sipekne’katik fisherman, Jason Marr, was trapped in a lobster storage pound being used by the Mi’kmaw fishermen in Middle West Pubnico, while a mob of over 200 men hurled rocks at the building while he was trapped inside, shouting racist insults.

Marr told CBC; he hid in the building until “the RCMP took him by the arm and forced him to leave the building, and he stood outside and watched as the mob broke windows and carried out lobster in crates.” A week later, and a huge fire erupted burning the building to the ground.