The Mi’kmaw fishers who headed out to collect lobster traps on St. Marys Bay in Saulnierville, N.S., on Sept. 9 were met by a familiar sight: zodiacs speeding toward them from the horizon.
The boats, owned by the Department of Fisheries and Oceans (DFO), were filled with armed conservation and protection officers.
As their motors slowed, the officers watched Sipekne’katik First Nation Chief Mike Sack and members of his community haul in about 100 pounds of lobster.
Assembly of First Nations National Chief RoseAnne Archibald, chiefs from across eastern Canada and journalists were also onboard the Mi’kmaw boats.
Sack said he expected he’d be arrested by DFO that day, just like he was a month earlier when his community launched its treaty fishery for the first time this season. No charges were laid as a result of that arrest.
“They had an opportunity to get a bunch of chiefs, a national chief, and they chose not to,” Sack said. “They’re always saying that any fishing outside the commercial season is prohibited.”
Archibald posted video to social media later that evening showing DFO officers surrounding another Mi’kmaw fishing boat and seizing their traps. This happened after the media left for the day.
“We ask that any government officials here respect First Nations and their rights, not only today when I’m out on the boat, but every single day,” Archibald said earlier that afternoon.
The federal government says seizing traps and stopping boats is in the interest of conservation and safety, and that it’s enforcing the law.
First Nation fishers and leaders say this kind of intimidation and harassment is typical of a government that refuses to take meaningful action toward recognizing the Mi’kmaq right to fish affirmed by the Supreme Court of Canada more than two decades ago.
“Arresting Chief Sack was absolutely a signal, a strong arm tactic that flies in the face of reconciliation in this country,” said Rosalie Francis, a lawyer for Sipekne’katik First Nation.
“The day that they arrested the chief for me was just a political move by the Liberal government to show, you know, we’re dealing with the Indian problem in the South Shore.”
The Mi’kmaq right to fish
The Mi’kmaq right to fish, as guaranteed in the Peace and Friendship Treaties of 1760-61, has long been opposed by proponents of the country’s most lucrative commercial lobster fishery.
In 1999, the Supreme Court ruled that Donald Marshall Jr.’s constitutionally-protected treaty right to fish was violated when he was charged with and convicted of fishing and selling eels without a license and fishing during the close season with illegal nets.
His conviction was overturned by the court and the landmark ruling affirmed the Mi’kmaq right to fish and hunt for a “moderate livelihood.” The court didn’t define the term moderate livelihood, nor has any federal government since.
“We have a right to live off the resources and that’s what we want to do,” Sack said.
In the weeks after the Marshall decision was released, Mi’kmaw fishers set lobster traps outside the commercial fishing season to assert their rights. The result was violence on the water, the destruction of Indigenous traps, and aggressive enforcement by DFO. The clashes became known as the “Burnt Church Crisis.”
Current fisheries minister Bernadette Jordan said the meaning of a “moderate livelihood” must be settled through negotiations with Indigenous peoples.
“The last thing First Nations want is somebody from Ottawa to tell them what their moderate livelihood is,” Jordan said during an interview with Global News on Sept. 14. “It can’t be a top-down approach.”
Jordan is the Liberal candidate running for re-election in the Nova Scotia riding of South Shore–St. Margarets, which is next door to the riding that contains St. Marys Bay.
She says the Liberals have made more progress on the moderate livelihood issue than any previous government by signing fishing agreements with a number of Indigenous communities. The Liberals call this “reconciliation in action.”
But the government will only sign those deals if First Nations communities agree not to harvest lobster outside the commercial fishing season.
Sipekne’katik refuses to do so and is setting traps months before the start of the season for Lobster Fishing Area (LFA) 34, which opens on the last Monday in November.
Francis says the small boats her community uses can’t withstand the rough seas and winds on the water during the winter.
“Our people would be killed,” she said. “And so that’s the push-comes-to-shove issue.”
Limiting Mi’kmaq treaty rights
Under Jordan’s watch, DFO has stepped up enforcement on St. Marys Bay and the other side of the Bay of Fundy, where another First Nation has launched a self-regulated lobster fishery.
Jordan said some communities have walked away from negotiations with DFO and are fishing outside the commercial season.
“That’s unfortunate,” she said. “Because it does mean that we will still have to continue to uphold the Fisheries Act.”
That’s not true, however, when it comes to the Mi’kmaq right to fish.
The Marshall decision said this right “can be contained by regulation,” but only if the government provides justification.
The Supreme Court later clarified its position, saying treaty rights are subject to regulation “provided such regulation is shown by the Crown to be justified on conservation or other grounds of public interest.”
The court also said Indigenous people are “entitled to be consulted” about limitations on the exercise of treaty and Indigenous rights.
Francis and Sack say the government has done nothing to show it can justify limiting when they can fish.
“Even on the conservation issue, DFO raised that as an issue because they know that’s how you justify infringing rights,” Francis said.
“So we said, where’s the science? Show us, where is the science to say there’s an issue?”
Show us the science
The most recent DFO report on the health of the species says the lobster stock in LFA 34 is healthy and not overfished.
The report also shows that the amount of lobster pulled from these waters by commercial fisheries has increased 600 per cent since 1980, with more than 19 million pounds caught during the 2018-19 season.
And the supply of lobster left over after the commercial season is finished is “relatively high” compared to historical levels.
Commercial license holders in LFA 34 are allowed to fish a total of up to 386,000 traps per season.
“The lobster, like any other species, needs a time to breed, they need a time to rest,” Jordan said.
“We need to make sure that what’s going in the water and what’s coming out of the water is accounted for.”
The Mi’kmaq say conservation for future generations is at the heart of their traditional fishery.
Sipekne’katik issued about 200 traps to community members this year, Sack said. Some of those are for traditional ceremonial purposes and the catch cannot be sold.
“Our people have managed and preserved the fishery for thousands of years, thousands. This country has been here for 150 years,” Archibald said.
“First Nations have the Creator-given right to manage this fishery and to work co-operatively with government. We’re not getting co-operation, as far as I can see. We’re getting intimidation, arrests and things that are not helpful to bringing peace to this part of the country.”
Colonial violence and oppression
First Nations leaders, including Archibald, say the action taken by DFO on St. Marys Bay is a form of cultural violence and continued colonial oppression.
Sipekne’katik also believes DFO is seizing Indigenous lobster traps in part to prevent angry, non-Indigenous Nova Scotians from attacking Mi’kmaq fisheries like they did in 2020.
A mob of around 200 commercial fishers and their supporters ransacked two lobster pounds in southwest Nova Scotia where the Mi’kmaq kept their catch in October 2020. One of these pounds was later burned to the ground.
Nearly two dozen non-Indigenous people have since been charged in connection to the two incidents. The charges include break and enter and mischief.
Two other men have been charged with arson, including Brendon Douglas James Porter, who has a history of fishing-related convictions, such as mistreatment of a marine mammal, possessing undersized lobster and fishing lobster outside the closed season, according to a report by the CBC. Porter is set to enter a plea on the arson charge on Nov. 5. Sean Roy Messenger was charged with arson on Sept. 9, and will be in court Nov. 29.
Sipekne’katik planned to relaunch its treaty fishery in June 2021, but delayed setting traps because of safety concerns.
“We’ve had a number of meetings and discussions over the past week with our fishers, and simply put, they don’t feel safe taking to the water this week or even in the coming weeks,” Sack said in June.
In August, nine of their fishing boats were set adrift after the lines were cut loose and lobster was stolen. The RCMP says it’s investigating.
Global News asked Jordan if DFO’s efforts to step up enforcement against the Mi’kmaq fishery is a means of preventing a resurgence of mob-fuelled vigilantism.
“Making sure that keeping tempers down, making sure that we’re continuing to have conversations not only with First Nations, but also with industry to keep them apprised of what is happening, is extremely important,” Jordan said.
“These are all things that have kept things calm this year.”
In a report published in The Chronicle Herald on Sept. 17, DFO’s national director general of conservation and enforcement, Heather McCready, said the minister has nothing to do with enforcement decisions.
“The minister does not direct nor influence any enforcement activity in this department nor any other enforcement activity program in Canada,” McCready said.
That declaration came after DFO boats were temporarily removed from St. Marys Bay and then returned last week, amid claims that DFO told commercial fishers about the changing enforcement but did not inform First Nation fishers.
The Liberals say they have made reconciliation with Indigenous peoples a top priority, and have committed to acting on the 94 calls to action made by the Truth and Reconciliation Commission.
But Sack said reconciliation is an empty word. He wants his rights and the rights of his people to be respected.
He said he can’t stand by for another 20 years and let the government talk about what a moderate livelihood means, while his community has the highest rate of child poverty in Nova Scotia.
“We’re going to go fish,” Sack said.