As hurricane Teddy loomed 500 km off the coast of Nova Scotia on Tuesday, Sept. 22, its approach brought an ironic calm to St. Mary’s Bay waters, where for more than a week commercial and indigenous lobster fishermen had clashed over fishing rights.
“The boys dropped traps Sunday night, they dropped traps and fished Monday,” said Sipekne’katik Chief Mike Sack of his members’ activities following a tumultuous weekend, which saw arrests on the wharf and non-indigenous commercial fishers pulling what they say are illegal traps from the bay.
“But we have a big hurricane or tropical storm coming up, so everybody’s got the boats in and tied up to prepare for the storm.”
While boats and locals hunkered down for Teddy, an unresolved political tempest foams over a 21-year-old Supreme Court of Canada decision, and the clashes in the bay and onshore evoked memories of Burnt Church, New Brunswick, where violence erupted following the ruling.
In 1993, Donald Marshall Jr., a Mi’kmaq man from Nova Scotia, was arrested, charged, and eventually convicted for fishing approximately 200 kg of eel out-of-season and selling them, in violation of federal fisheries regulations.
In September 1999, Canada’s highest court overturned the conviction, citing 1760–61 “peace and friendship treaties” between Mi’kmaq and British settlers that birthed “truckhouse” trading posts. In a split decision, a majority of justices agreed that these treaties and truckhouse provisions guaranteed Maritime indigenous groups the right to hunt and fish for “a moderate livelihood.”
After the ruling sparked violent clashes between indigenous and non-indigenous fishers in Miramichi Bay in the weeks that followed, the Supreme Court hastily prepared what became known as Marshall 2, which attempted to clarify that indigenous fishers were also subject to federal conservation rules.
Commercial lobster fishers in St. Mary’s Bay, however, say that the Department of Fisheries and Oceans (DFO) has been loath to enforce these rules.
Non-indigenous lobster fishers in the region charge that indigenous-owned boats are illegally fishing in a sensitive moulting region of shallow waters on the northwest tip of the province, where lobsters migrate to warmer waters to shed exoskeletons and reproduce.
There are approximately 1,000 commercial lobster licences, of which Sack says 9 belong to Sipekne’katik; a typical lobster boat will utilize upwards of 400 traps, depending on the season.
Bay of Fundy Inshore Fishermen’s Association spokesman Colin Sproul says indigenous lobster fishers are breaking the law by setting traps outside the DFO’s mandated lobster season, which runs between the end of November and May 31, and in turn are contributing to the depletion of stocks.
“When we recovered the illegal fishing gear [on Sunday, Sept. 20] and the night before, what we found was horrific. There were fisherman with tears in their eyes—it was even worse than we expected,” Sproul told The Epoch Times.
He said more than 150 men, “pillars of their community,” left Meteghan Wharf to pull the traps.
“There were multiple violations of fishery policy … egg-bearing female lobsters and undersized females used as bait in the traps, no whale markings on the rope, which is a mitigation measure for right whale entanglements, no tags on the traps.”
Sproul said the association is willing to sit down with the Sipekne’katik and federal Fisheries Minister Bernadette Jordan to solve the impasse. He blames the minister for passing the enforcement buck to industry instead of tasking it to the relevant authority: DFO.
“Under the overwatch of RCMP helicopters, Coast Guard helicopters, Coast Guard ships, and RCMP fast patrol boats, they watched our fleet sail from the wharf and act completely within the law,” he said.
“We went and collected all that gear and delivered it to DFO to their evidence lock, and no enforcement action was taken against us. Ask yourself why? Because we didn’t break any laws.”
Sack’s view of the conflict on the water is markedly different, noting “one of the boats flew a pirate flag—that says it all, really.” He said hashing out a mutual lobster management scheme with the Bay of Fundy Inshore Fishermen’s Association is a non-starter.
“I’ve said all along, we’ve got nothing against commercial fishermen. But what they’re saying is irrelevant, and it has nothing to do with our rights,” Sack said in an interview.
“If there’s something we need to talk to them about, we’ll reach out, and if not, we wish them well.”
‘You Have to Regulate’
Cory Francis, a member of the nearby Acadia First Nation who has more than 25 years’ experience in the industry as a lobster fisherman and as a negotiator for indigenous fishing rights, says both Sack and the DFO are in the wrong.
“Here’s what’s going to happen. [The government]’s waiting for us to beat each other up with bats,” he told The Epoch Times.
“Marshall clearly said you have to regulate, and you can’t regulate without management. Conservation comes first and you can’t accomplish that without management. I know, I wrote the damned regime.”
Francis alleges that many Nova Scotia chiefs are “farming out our rights-based fishery access that individual members have as inherent rights holders, and they’re flipping them for a buck”—leasing some of the approximately 170 lobster licences transferred to indigenous groups from commercial fishers at a cost of nearly $700 million, post-Marshall decision.
“And to give you an example, I can’t go fishing on a boat because they’re all full. We don’t even mentor our people. We don’t provide them economic opportunities in the fishery, which was the original intent of the policy.”
The Assembly of Nova Scotia Mi’kmaw Chiefs denies that the moderate livelihood fishery is illegal.
“Our rights were affirmed in the Canadian Constitution and the right to fish for a moderate livelihood was reaffirmed by the Supreme Court of Canada. While the public may not comprehend a fishery outside the realm of the Department of Fisheries and Oceans, that does not make our fishery illegal,” the chiefs said in a statement after meeting with Jordan and Indigenous-Crown Relations Minister Carolyn Bennett on Sept. 22.
A joint statement by Jordan and Bennett following the meeting affirmed that “Mi’kmaw have a constitutionally protected treaty right to fish in pursuit of a moderate livelihood.” It also condemned “the threats, intimidation, or vandalism that we have witnessed in South West Nova Scotia.”
“At this time we need communication, not confrontation,” the statement said.
Sack denies that his members’ fishing activities in St. Mary’s Bay is a political statement.
“Oh no, we’re here to stay 100 percent. This is not a statement, this is about the kickoff of our modern Atlantic fishery,” he said, disagreeing that Sipekne’katik members fishing for lobster out of season is harming the breeding ground or the stock.
But Sproul says there’s been a significant decline in landed lobster from the bay over the past three years, noting that destructions to the lobster breeding ground during the moulting season contributed to this loss.
“Who controls Canada’s fisheries at this point? It’s madness to think that we could have [different fishery] management plans for each First Nation and everyone else in Canada, and that you could run an industry like that.”