A Fine Kettle of Disputed Fish: An Explanation of the Mi’kmaq Fishery Dispute

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By: Rachel May

The very foundations of the true Canadian archetype are of a polite and apologetic people, of populations with different backgrounds living together peacefully in a rich and beautiful land with abundant resources.  On those lines, the recent images of violent disputes erupting along our picturesque Nova Scotian coast, with scenes of destructive fires and fistfights, seems to be at odds with our sensibilities.  But in fact, the essence of the dispute is distinctly Canadian. It is a product of the underpinning of our nation, and a key element of our ongoing bargain, being our arrangements with the First Nations peoples who first inhabited this land.  It is a fish story that has the nation hooked.

The basics of the dispute are clear.  In September of this year the Sipekne’katik First Nations, living in the traditional national Mi’kmaq territory, established a self-governed lobster fishery in St. Mary’s Bay, Nova Scotia. Non-Indigenous fishermen are very concerned that the new fishery will deplete harvestable stocks in the region, and have responded forcefully.  Recently the responses have included damaging the First Nations fishers’ traps, setting fire to the lobster storage facility and nearby vehicles, barricading the Mi’kmaq fishers inside their facilities, and throwing rocks at the building.  They are insisting that the First Nations harvest of lobster be curtailed, or perhaps clawed back.

To be able to fully understand this issue, it’s important to understand the long history behind it. The genesis of the dispute relates to treaties almost 300 years old, and Supreme Court decisions from the last century.  The first formal agreements between First Nations and the British were the Peace and Friendship Treaties created between 1725 and 1779. These treaties set forth the terms for peaceful co-existence, including the terms for the engagement in commercial activities. First Nations were granted rights to hunt and fish, without specificity. These treaties are recognized in, and affirmed by, section 35 of our Constitution as part of the 1982 repatriation.  Unfortunately, while the treaties confirmed the basic rights of Indigenous populations to hunt and fish in general terms, they naturally couldn’t anticipate contemporary concerns (such as depletion of fish stocks) and didn’t lay out solutions with sufficient specificity to resolve the current disputes.  That is the catch.

The uncertain scope of the First Nations’ treaty rights to hunt and fish, as now affirmed in our Constitution, was litigated all the way to the Supreme Court of Canada in 1999, in a case that mirrored the current dispute extremely well.  The case related to charges laid by the authorities under federal fisheries regulations against Donald Marshall Jr. for illegally catching and selling eels. He did not have a fishing license, was using an illegal net, and was fishing outside of the legalized season. Mr. Marshall’s activities posed concerns for local fisherman given the scale (no pun intended) of Mr. Marshall’s 210-kilogram haul. The court ruled in favour of Marshall, saying that he was justified in his actions “in pursuit of a moderate livelihood.” The ruling did not define the term “moderate livelihood” in any detail, and simply stated that the money obtained should be enough to cover the costs of basic necessities and not for the accumulation of wealth. Because of the ambiguity of these concepts the matter came back to the court (pursuant to an application for re-hearing) in what is widely called the Marshall II decision.  The court again didn’t provide quantitative guidelines (for example, allowable catch, in weight or value), nor did it provide a framework to assess how much fish represents a moderate net income. Instead, the ruling recognized the right of the federal government to regulate First Nations fishermen to address matters of public concern and interest, such as conservation.  The court also stated that any First Nations affected by the regulations would be consulted on the issues brought forth to reach an agreement best for all parties.

Which takes us back to the images of fires and fisticuffs.  Clearly there are issues and disputes that persist.  The non-Indigenous fisherman are loudly protesting the diminishing lobster stocks and the threats to the sustainability of the industry posed by fishing outside of the normal season during periods that are intended to facilitate spawning. The First Nations fishermen contend that they too are fearful of depleting the lobster supply and don’t want to harm the supply. They stated that they are only taking five percent of the lobster in the area so their fishing shouldn’t be cause for concern, and this sentiment has been echoed by experts in the field. The fishermen believe that the First Nations fishers are hiding behind the term “moderate livelihood” and actually fishing on a larger scale than they admit.

So where do we go from here? It is tempting to say that the federal government should land on what moderate livelihood means in this case, with appropriate consultation and input.  Agreements (which, among other things, prescribe the contextual meaning of “moderate income”) have already been reached with three other bands. Hopefully those agreements will provide some kind of framework, and momentum, to the process with the Mi’kmaq people.  Even if an agreement is reached, it will certainly have to be enforced to the satisfaction of all concerned.  The sensitivity and importance of the dispute has been highlighted in recent days by Indigenous fishermen’s complaints about racism on the part of the RCMP. They are angered by the RCMP’s inaction, and have requested the Commissioner resign. Prime Minister Justin Trudeau has decided to stand by the RCMP but admits that systemic racism needs to be addressed when reaching an agreement. Matters are coming to a head, as the Sipekne’katik people have found a buyer for their catch and are fearful of retaliation. This is clearly not an easy bridge to cross, but it is equally clear that it is a bridge that must be crossed as quickly as possible.

Rachel May is a Master of Public Policy candidate at the University of Toronto’s Munk School of Global Affairs & Public Policy. She is interested in social policy particularly gender equity and examining structural and societal biases. Rachel holds a Bachelor of Arts in Psychology from the University of Western Ontario.

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