Troubled Waters in NS as Feds Urged to Define ‘Moderate Livelihood’ Fishing Rights

October 21, 2020 Updated: October 22, 2020

Things were calmer this week in the Nova Scotia lobster fishing dispute as more RCMP were dispatched to the area, while pressure mounted on the federal government to step in to resolve the conflict between indigenous and commercial fishers and clarify indigenous fishing rights.

Federal Fisheries Minister Bernadette Jordan says she is planning to appoint a representative to foster dialogue between the Mi’kmaq indigenous fishers and commercial fishers, while holding “nation-to-nation” negotiations with the Mi’kmaq.

But the issue relating to the undefined guaranteed “moderate livelihood” for indigenous fishers is proving to be complex.

Colin Sproul, a spokesperson for the Bay of Fundy Inshore Fishermen’s Association (BFIFA), says he’s concerned the federal government may allow the out-of-season indigenous lobster fishery to continue, which he says he was told in a meeting with Jordan.

“In their hopes of achieving fruitfulness at the negotiating table with First Nations, they chose to stop enforcing the law in Nova Scotia because they told us that they thought it would sour the mood at the table,” Sproul told Epoch Times.

A spokesperson for the minister said she had no comment on Sproul’s remarks, saying the negotiations the federal government has on the issue are “nation-to-nation” with the M’kmaq.

Sipekne’katik Chief Mike Sack says his members have a right to fish for lobster, and that their operation isn’t harming the breeding ground or the stocks.

“This is about the kickoff of our modern Atlantic fishery,” he said in a previous interview.

“Moderate livelihood” is a term born from the Supreme Court’s 1999 Marshall decision, which said the Mi’kmaq and Maliseet people of Atlantic Canada and the Gaspe region of Quebec have a right to earn a moderate livelihood from fishing. It was followed by what became known as Marshall 2, which attempted to clarify that indigenous fishers were also subject to federal conservation rules.

Nova Scotia Premier Stephen McNeil is among the many who are asking the federal government to “answer the question of what constitutes legal harvesting under a moderate livelihood fishery.”

Sproul alleges that indigenous-owned commercially licensed boats are illegally fishing in the St. Mary’s Bay’s sensitive lobster molting region of shallow waters on the northwest tip of the province, and jeopardizing the resource.

During an emergency debate on the issue this week, several MPs said in the House of Commons that the scale of the Mi’kmaq out-of-season operation is too small to be of a conservation concern.

Ken Coates, a University of Saskatchewan professor and expert on indigenous issues, agrees that the moderate livelihood fishery is too small at this point to have a significant impact on the vitality of lobster stocks.

However, he says the commercial fishers’ are concerned that the out-of-season rate of harvesting could expand in the future.

“[Their concern] is with the principle of the unilateral expansion of the harvesting seasons and downstream impact on the fishery,” Coates told The Epoch Times.

Dispute Escalates

In late September, Nova Scotia’s Sipekne’katik First Nation, composed of four Mi’kmaq First Nation reserves, commenced its lobster fishery in the commercial off-season, which runs from the last Monday of November to May 31.

The move immediately drew protest from commercial fishers, with physical confrontations ensuing.

Last week, the dispute escalated to vandalism and arson. Two facilities storing the Mi’kmaq fishers’ catch were vandalized, with one set on fire, and a vehicle outside the second facility was also set on fire.

Spekne’katik chief Sack couldn’t be reached for this story, but he told reporters that the fire destroyed about $1 million worth of lobster.

Sproul has condemned the arson and said the BFIFA is “not involved in the planning of any sort of violent actions.”

During the Oct. 19 emergency debate, Prime Minister Justin Trudeau called the violence against the Mi’kmaq fishers “shameful” and “criminal.”

Conservative Party Leader Erin O’Toole accused the Liberals of “inaction” leading to the escalation of the dispute, while NDP leader Jagmeet Singh called on the government to “step up” to resolve the situation.

Jordan said this week the government is working toward a resolution.

“We are absolutely working on a path forward to make sure that the affirmed right that was upheld by the supreme court is implemented—to that end we are also listening quite closely to commercial fishers with some of the concerns that they’re having,” she said.

“But the actual negotiations is a nation-to-nation negotiation and those are taking place right now with Chief Sack and I’m not going to prejudge what comes out of those negotiations.”

Bill Gallagher, a strategist who advises both indigenous groups and industry where resource interests intersect with aboriginal rights, says the negotiation ship may have sailed and that the courts may be called upon again as the ultimate arbitrator.

“Up until three weeks ago, I would have said DFO [Department of Fisheries and Oceans] has to get moving, they have to get everybody in the room and we arrange the quotas, and come up with a definition of moderate livelihood and put a piece of the quota under that, then figure out where the Acadian fishermen fit in and figure out their quotas,” he said.

“They have proper protections, and it seems to be that the executive branch of the government is incapable of implementing what the judicial branch is putting forward.”

Coates says the federal government has been actively involved with the First Nations’ fishery since the 1999 Marshall decision trying to resolve the “two key issues” of defining moderate livelihood and the role of indigenous peoples in the management of the fishery, but so far a solution hasn’t been found.

“Ultimately, the government is going to have to make a decision: Enforce the fisheries regulations, or make an exemption for an expanded commercial fishery, within the season or outside of it, for First Nations,” he said.

“If they do the latter, they will have to create the extra space by purchasing quota from the non-indigenous commercial fishers.”