Sipekne’katik First Nation has stopped nation-to-nation discussions with Ottawa on implementing treaty rights in the moderate livelihood fishery launched in September.
Chief Mike Sack says the community is disappointed with the approach taken by the Department of Fisheries and Oceans (DFO), in a letter sent to fisheries minister Bernadette Jordan on Wednesday.
“We entered into such discussions with optimism and transparency, eager to collaborate with DFO on the safe and respectful exercise of our member’s constitutional treaty fishery rights,” the letter reads.
“We understood that DFO had been directed by the Prime Minister to ensure our treaty rights were recognized, respected, and exercised safely and without hindrance. However, we were sadly disappointed.”
The Sipekne’katik First Nation launched its moderate livelihood lobster fishery in September, exercising a treaty right that all Indigenous nations in Eastern Canada have, which is to fish or hunt for a “moderate livelihood.”
It was a right further recognized by the Supreme Court of Canada’s 1999 Marshall decision.
Although the term “moderate livelihood” was not formally defined by the court, a subsequent decision ruled that the government has the authority to impose some regulations for the purposes of conservation, subject to nation-to-nation consultations.
But in the 21 years since the Marshall decision was handed down, those negotiations have never occurred.
The Sipekne’katik First Nation has argued that the DFO’s failure means their fishery is permissible.
The Sipekne’katik have since been joined by the Pictou Landing First Nation and the Potlotek First Nation in Cape Breton. Other bands, such as the Bear River and Membertou First Nations, have declared intentions to launch their own moderate livelihood fisheries.
The federal government has taken the position that the treaty rights must be respected although they’ve disagreed on how that might work.
Late last month, Sack said he had received a draft agreement about a moderate livelihood fishery from Jordan’s office.
At the time, Sack described the agreement as a potentially groundbreaking recognition of Indigenous treaty rights in Canada.
But after reviewing the document, Sack said in a letter to Prime Minister Justin Trudeau, published last week, that Sipekne’katik “remains very disappointed in the documents’ intent and content.”
One week later, Sack said the community was “frustrated” with the three-month-long nation-to-nation discussions and decided to pull the brakes on the talks.
“DFO’s position continued to be an agreement based on terms and conditions dictated by these representatives on fishery access derived from statute, instead of a treaty-based fishery where our treaty right to fish and sell is derived from recognized section 35 constitutional rights to harvest and sell fish,” Sack said in this week’s letter.
“It is now clear to me, my Council, and community members that DFO does not have the desire nor the ability to recognize and implement our Constitutional right through a respectful process that is beyond the status quo of a regulatory manner that tried to lump our constitutional right in with commercial licenses.”
Sack said Sipekne’katik may reconsider should there be a change in the department’s approach.
Office of the Minister of Fisheries, Oceans told Global News in an email statement they heard Chief Sack’s concerns about the negotiations.
“Our conversations with Chief Sack have been centered on implementing Sipekne’katik First Nation’s right to fish in pursuit of a moderate livelihood. Both our governments shared the same goal of a productive and sustainable fishery, and that remains,” the statement read.
The office said it is taking time to review Sack’s concerns before moving forward.
“Reconciliation is not a linear or simple process, but it is a Canadian imperative. Where challenges arise, we will continue to address them with our partners, nation-to-nation.”
— With files from Alexander Quon.