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Federal fisheries committee talks First Nations law, moderate livelihood, systemic racism

Indigenous fishermen carry lobster traps in Saulnierville, N.S. on Wednesday, Oct. 21, 2020. Tensions remain high over an Indigenous-led lobster fishery that has been the source of conflict with non-Indigenous fishermen. THE CANADIAN PRESS /Andrew Vaughan.
Indigenous fishermen carry lobster traps in Saulnierville, N.S. on Wednesday, Oct. 21, 2020. Tensions remain high over an Indigenous-led lobster fishery that has been the source of conflict with non-Indigenous fishermen. THE CANADIAN PRESS /Andrew Vaughan. THE CANADIAN PRESS /Andrew Vaughan

Two Mi’kmaq chiefs told the federal fisheries committee on Monday that self-regulation and recognition is needed for reconciliation, and for Indigenous fishers to move forward.

Maritime fishermen’s associations, on the other hand, say they need to be included in discussion with the Department of Fisheries and Oceans to achieve one set of rules when it comes to fishing within and out of regular season.

The standing committee on fisheries and oceans met Monday to discuss the implementation of Mi’kmaq treaty fishing rights to support a moderate livelihood.

Since it launched in September, commercial fishermen have said the new self-regulated Sipekne’katik First Nation fishery is illegal because it harvests lobster outside of the regular season.

Earlier this month, the Mi’kmaq saw a lobster fishing compound burnt to the ground.

Non-Indigenous lobster fishers have destroyed traps and catch, and threatened Mi’kmaq lobster fishers with violent mobs.

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Indigenous fishers optimistic following granted interim injunction – Oct 22, 2020

Last week, members of the Liberal cabinet condemned the violence as “disgusting” and “racist,” warning the Mi’kmaq have a constitutionally-protected treaty right to fish for what the Supreme Court in its 1999 Marshall Decision described as a moderate livelihood.

Paq’tnkek Chief Paul J. Prosper, and the regional chief of the Assembly of First Nations, opened the Monday afternoon meeting by saying the government has failed to implement Treaty rights to the Mi’kmaq.

“It was a rude awakening for me to realize just because you have an Aboriginal Treaty it does not mean the government will honour or uphold that right,” Prosper told the committee.

He said, “in order to create a law as Aboriginal people, we have to break a law that is unjust in the first instance.”

Prosper said that to date, the government has participated in negotiation without recognition of Treaty rights and Aboriginal law.

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Read more: ‘We need a clear plan’: MPs clash during emergency debate on Mi’kmaw lobster fisheries

Prosper said the lack of government mandate in discussing treaty rights runs deep in Canada. He said there is a distinct need to offer a different approach in this situation.

“Shame on Canada. Shame on Canada for not recognizing Sparrow, double shame on Canada for not recognizing Marshall.”

Listuguj First Nation Chief Darcy Gray said the DFO keeps forcing Indigenous fisheries into a model that was not developed for Indigenous fisheries.

He says that for years, the Mi’kmaq have been asking for a fishing licence that would respect their treaty right. “Every fall we are refused, every fall the minister insists on prohibiting our treaty right,” Gray said.

The bottom line, Gray said, is that governments cannot place restrictions on fisheries unless they are justified.

“We have the right to fish, and sell fish, any time of the year,” he told the committee.

The Listuguj First Nation has had a self-regulated salmon fishery in Restigouche River since 1995, Gray said.

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New Brunswick First Nations offer support for N.S. moderate livelihood fishers – Oct 26, 2020

The season is determined according to their law, not the regulated commercial season. “Instead we look at the stocks, how healthy they are.”

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Gray says this doesn’t have to be outside of the regular fishing season.

“Rather than looking at seasons we’re look at the needs of our people. Sometimes you need to eat the food, sometimes you need to sell to make a livelihood.”

Gray said the community is still far from achieving a livelihood from the fishery. “I’m proud of it, but it’s hardly a moderate livelihood.”

In last week’s standing committee, Shelley Denny with the Mi’kmaw Rights Initiative said it’s the implementation of rights that should be the focus, not defining livelihood.

“A livelihood is about the ability to support oneself spiritually, culturally, economically, socially, it’s more than making money to people… I think that defining it would limit it,” Denny said last Wednesday.

Read more: Fisheries committee hears from Mi’kmaw experts and commercial fishermen association

Gray said it’s also about being able to exercise a right.

“Knowing that they are fishing under Mi’kmaw law is truly empowering,” Gary said, referencing Denny’s testimony.

“If you haven’t been out on one of those boats, and you haven’t seen how those fishermen go about it and the joy they get when they bring it to elders, it’s hard to understand.”

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Chief Prosper shared a similar sentiment.

“When you have Mi’kmaq people out on the water, exercising their right, there’s a certain level of responsibility and accountability… There’s a lot with that that is hard to explain, but you see it,” he said.

Both Chiefs Prosper and Gray said the Mi’kmaq nations share common values, language and traditions of mutual respect and sharing. “It’s not all about me and all about mine,” said Gray.

Read more: ‘Blacklisted:’ Nova Scotia First Nation pulls commercial lobster boats from the water

The chiefs have expressed that the major role of the standing committee is to educate, not just those on panel, but government and constituents.

Committee hears from fishermen’s associations

In the second panel of the Monday afternoon standing committee, Michael Barron with the Cape Breton Fish Harvesters Association says the education part is important and admits he himself is still trying to understand the Marshall decision.

“Sadly, this process of educating and advising members has made ever more complicated by the lack of information and involvement in discussions about the moderate livelihood,” Barron said.

In addition, Barron said that because of this lack of discussion, commercial harvesters are “quite logically fearful” that granting more access to lobster resources with impact them economically.

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“In some instances where Indigenous access is not adjacent to the coast it will move money completely away from the coast, impacting out economies,” Barron said.

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What’s behind the tensions between the Mi’kmaq and commercial fisheries? – Oct 22, 2020

He said the DFO has failed to facilitate discussions between Indigenous and non-Indigenous commercial fishermen, which he said needs to happen.

Bobby Jenkins, president of the P.E.I. Fishermen’s Association, said commercial fishermen have not been represented in discussions that impact their livelihoods.

He said there needs to be a clear set of guidelines for all lobster fisheries and hopes for more dialogue.

“We envision a moderate livelihood that takes place during the regular commercial fishing season… Leaders must lead with workable and beneficial solutions,” Jenkins said.

Read more: Bear River First Nation to push ahead with its own livelihood fishery plan

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Jenkins told the committee that depending on who the competition is, fishing outside of the regular season can be just as, or more, lucrative than fishing in the commercial season.

Cape Breton’s Barron said conservation and sustainability of the resource is the top priority for the association. He said if any activity in the water is detrimental now, the statistics won’t show that for another several years.

When asked if he would support an out-of-season Mi’kmaw fishery if science proved there was no detriment, he stated that’s not something he can say without seeing the facts.

Barron said he is in discussion with Membertou Chief Terry Paul and looks forward to an open dialogue on concerns.

Both the Cape Breton and the P.E.I. fishermen’s associations condemned the violence that escalated in the south shore of Nova Scotia.

Read more: Nova Scotia Mi’kmaq chief casts doubt on Ottawa’s bid to quell violence over lobster

NDP MP in British Columbia Gord Johns asked both witnesses in the committee on how their association would react if member fishermen took conservation into their own hands.

Jenkins said such violence would not be tolerated, but would be handed off to law enforcement. In addition, the association’s board would create consequences, said executive director MacPherson.

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Barron said the Cape Breton association has no bylaw on this and it would fall under DFO. There would also be a board discussion, he said.

MP Johns also asked the panel if they saw systemic racism play a role in the way RCMP responded to the Oct. 13 mob attack on two lobster pounds used by Mi’kmaq and the fire later that week.

The P.E.I. association said that’s a hard question and they’re still not sure what exactly went down. Jenkins said it’s up to RCMP to lay charges if they need to be laid.

Barron says the RCMP’s slow response falls on the slow response of the DFO. “To outright say that I see systemic racism, no I can’t say that I do.”