Sipekne’katik files court action against Nova Scotia to claim fishing treaty right

Click to play video: 'Sipekne’katik First Nation challenges Nova Scotia to claim fishing treaty right'
Sipekne’katik First Nation challenges Nova Scotia to claim fishing treaty right
WATCH: The Sipekne’katik First Nation has filed a court challenge against the Nova Scotia, challenging a provincial regulation on purchasing fish products, saying it’s unconstitutional. Elizabeth McSheffrey explains – Feb 3, 2021

The Sipekne’katik First Nation has filed a court action against the Attorney General of Nova Scotia to challenge a provincial regulation on purchasing fish products, saying it’s unconstitutional.

This regulation orders that any fish products sold in Nova Scotia must be caught and registered under a commercial licence with the Department of Fisheries.

“The regulation places a legal limitation on the Mi’kmaq people and the community members of Sipekne’katik to fish and trade in support of a moderate livelihood,” Sipekne’katik said in a release on Wednesday.

The Sipekne’katik First Nation launched its moderate livelihood lobster fishery in September 2020, exercising a treaty right to fish or hunt for a “moderate livelihood.”

It was a right recognized by the Supreme Court of Canada’s 1999 Marshall decision.

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Though 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 and the Sipekne’katik First Nation has argued that the DFO’s failure means their fishery is permissible.

Commercial fishers in Nova Scotia have insisted that the moderate livelihood fisheries are illegal and should not be operating outside of the regulated season as they pose a danger to conservation efforts and the long-term health of the lobster stock in the region.

Click to play video: 'Chief Mike Sack on Global News Morning'
Chief Mike Sack on Global News Morning

However, First Nations and conservation biologists in the province have disagreed, saying there is no significant conservation risk when it comes to the Indigenous fishery.

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One biologist at Dalhousie University told Global News back in October that the launch of the moderate livelihood fishery likely won’t make a dent in the long-term conservation of lobster stock.

“The scale of this new commercial fishery is so small they shouldn’t be concerned for the conservation of lobster,” said Aaron MacNeil, an associate professor in Dalhousie University’s biology department and Canada Research Chair in Fisheries Ecology.

“There’s nobody that would say that this is a risk to conservation of lobster.”

Sipekne’katik has 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.

In Wednesday’s release, Chief Mike Sack recognizes the need for conservation, and says the community has a tracking and tagging plan to regulate stock

“We represent less than 1% of what is caught in St. Mary’s Bay and LFA 34 and we’ve shared our management plan which includes a tracking and tagging system that was regularly subject to DFO inspections,” he said.

“We understand the need to collaborate to ensure that the health of the species is monitored and observed by all active fishers.”

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Chief Sack now says his community will not go another year without asserting its rights and allowing Indigenous fishers to independently provide for their families.

“The fact that the Provincial and Federal regulations do not correlate is not our problem to solve yet here we are filing court papers,” Sack said in this morning’s release.

“We are more resolved than ever to bring this to court as we have lost so much in the face of the violence and economic racism aimed at us from the commercial fishery throughout the fall.”

The opposition to moderate livelihood fisheries was initially constrained to heated words and the vandalization or seizure of fishing lines but violence escalated in October.

The incidents culminated on Oct. 13, with mobs of around 200 people swarming two lobster pounds in southwestern Nova Scotia.

At a facility in New Edinburgh, N.S., the crowd removed and damaged video cameras then ransacked the lobster pound and storage facility where the lobster catch was to be housed.

Later that night, the same thing occurred at a lobster pound in Middle West Pubnico, N.S.

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Jason Marr, a fisher who feared for his life while stuck inside one of the pounds during the attack, told Global News an estimated $40,000 in lobster catch was damaged in the incidents.

Since then, DFO’s proposed nation-to-nation discussion did not have the outcome Sipekne’katik hoped for, and Chief Sack announced upcoming lawsuits late last year.

Click to play video: 'Sipekne’katik ends discussions with DFO on moderate livelihood fishery'
Sipekne’katik ends discussions with DFO on moderate livelihood fishery

Wednesday’s release says a confirmation of a court-filed action against the attorney general was received by the band’s counsel, Pink Larkin, late Tuesday.

“It is an absolute necessity for our community members to make a living from the resources we have a Treaty Right to this coming season,” said Chief Sack in the release.  “We can no longer be lost in the bureaucracy of contradictory double speak of the Provincial and Federal governments.”

The court action asks the court to declare that prohibitions against buying fish from Mi’kmaq, fishing outside of DFO’s commercial licence regime, and prohibiting Mi’kmaq to moderately fish outside of the commercial season, are unconstitutional and contrary to Treaty Rights.

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— With files from Alexander Quon and Graeme Benjamin. 

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