Members of the Potlotek First Nation, head out into St. Peters Bay from the wharf in St. Peter’s, N.S. as they participate in a self-regulated commercial lobster fishery on Thursday, Oct. 1, 2020. THE CANADIAN PRESS /Andrew Vaughan

Members of the Potlotek First Nation, head out into St. Peters Bay from the wharf in St. Peter’s, N.S. as they participate in a self-regulated commercial lobster fishery on Thursday, Oct. 1, 2020. THE CANADIAN PRESS /Andrew Vaughan

5 things to know about the dispute over Nova Scotia’s Indigenous lobster fishery

Tensions remain high in the dispute over the Indigenous lobster fishery in Nova Scotia

Tensions remain high in the dispute over the Indigenous lobster fishery in Nova Scotia. Here are five things to know about the situation.

1. The dispute has a long history.

In September 1999, the Supreme Court of Canada affirmed the treaty rights of the Mi’kmaq, Maliseet and Passamaquoddy bands in Eastern Canada to hunt, fish and gather to earn a “moderate livelihood.”

The court decided that a Mi’kmaq fisherman from Cape Breton, Donald Marshall Jr., had the right to fish for eels and sell them when and where he wanted — without a licence.

That ruling was based on the interpretation of the Peace and Friendship Treaties approved by the British Crown in 1760 and 1761, which describe long-standing promises, obligations and benefits for the Crown.

The Supreme Court also said Marshall’s treaty rights were protected by the Constitution. However, the court said those rights are limited to securing “necessaries” and do not extend to the “open-ended accumulation of wealth.”

2. The Supreme Court of Canada clarified its ruling and muddied the waters.

Two months after the Marshall decision, the Supreme Court provided a clarification that remains at the heart of the current dispute in Nova Scotia.

The court stated that the constitutionally protected treaty rights cited in the first decision were not unlimited, and the Indigenous fisheries could be regulated.

The court, however, also said those regulations had to be justified for conservation or other important public objectives.

That key caveat is often cited by non-Indigenous commercial fishermen who say they would have no problem with a separate, Indigenous commercial lobster fishery, so long as it complied with federally regulated seasons.

When the Sipekne’katik First Nation launched its self-regulated lobster fishery on St. Marys Bay on Sept. 17, the federally regulated fishing season in that area had been closed since May 31, and it doesn’t reopen until Nov. 30.

3. The federal government has reached fishing agreements with other First Nations in the region.

After the Marshall decision spelled out the extent of treaty rights in 1999, some First Nations started fishing for lobster right away, prompting a backlash from non-Indigenous protesters.

The Mi’kmaq communities at Burnt Church in New Brunswick and Indian Brook in Nova Scotia — now known as Sipekne’katik — defied federal authorities and set traps outside the regulated season.

That led to the seizure of traps, arrests, charges, collisions on the water, shots fired at night, boat sinkings, injuries and threats of retribution.

At the time, the federal Department of Fisheries and Oceans assumed an aggressive posture on the water, where DFO boats were spotted ramming Mi’kmaq boats from Burnt Church.

Despite an ugly start, the federal government eventually started helping First Nations build their communal commercial fishing fleets. Between 2007 and 2015, the value of communal commercial landings rose from $66 million to $145 million for the Mi’kmaq and Maliseet First Nations.

And in 2019, Fisheries and Oceans Canada signed two 10-year Rights Reconciliation Agreements with the Elsipogtog (Big Cove) and Esgenoopetitj (Burnt Church) First Nations in New Brunswick, and the Maliseet of Viger First Nation in Quebec.

4. Most Mi’kmaq in Nova Scotia say they aren’t interested in selling out their treaty rights.

Bruce Wildsmith, legal counsel for the Mi’kmaq Rights Initiative, has said the 2019 agreements don’t meet First Nations’ requirements for a licensed moderate livelihood fishery, which he sees as separate and distinct from a regular commercial fishery.

These agreements require Indigenous fishers to adhere to federal regulations, including restrictions on when fishing can take place.

Wildsmith, who represented Marshall before the Supreme Court, says the Mi’kmaq want a moderate livelihood fishery based on separate consultations with the federal government. The fishery would have its own set of regulations based on nation-to-nation agreements that have yet to be drafted, despite years of talks.

5. Conservation of the lobster stocks is central to the debate in Nova Scotia.

Some commercial fishermen have argued that lobster fishing should not be permitted at this time of year because lobsters moult — shedding their undersized shells — in the mid-summer months, which is also when female lobsters can mate.

The Sipekne’katik First Nation, however, has insisted that its fisheries management plan ensures conservation of the lobster stocks, noting that fishing didn’t start until Sept. 17. The First Nation has already submitted a fisheries management plan to Ottawa.

Michael MacDonald, The Canadian Press

Like us on Facebook and follow us on Twitter.

Want to support local journalism? Make a donation here.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Mayor Ken Popove and Justice Thomas Crabtree at the 2018 inaugural council meeting on Nov. 7, 2018. (Jennifer Feinberg/ Chilliwack Progress file)
Most municipalities no longer begin council sessions with prayer: BC Humanist report

Chilliwack, Langley, and White Rock among 23 cities that violated ‘duty of religious neutrality’

Steve ‘Elvis Elite’ Elliott has released a DVD of him performing his Christmas show to bring hope and joy to seniors in lockdown. (Submitted)
Elvis tribute artist in Chilliwack brings joy to seniors in lockdown through Christmas DVD

Steve ‘Elvis Elite’ Elliott records Christmas performance, sends DVDs to seniors’ homes in B.C.

Parkside Centennial Elementary in Langley had an individual with COVID-19 at the school on Nov. 19, 2020, according to Fraser Health. (Google)
Langley elementary, independent school latest sites of COVID exposure

Parkside Elementary and Langley Christian has exposure events

Wout Brouwer expressed his gratitude to the Metro Vancouver regional parks department for keeping the Houston Trail in Fort Langley in such “great shape.” They recently repaired a section of the trail that was “seriously eroded” and built what Brouwer calls a “beautiful, rustic fence.” (Special to Langley Advance Times)
SHARE: Thanks for caring for Langley’s trails

Send us your photo showing how you view Langley, and it could be featured in a future edition

Mail-in ballot from Elections BC (Katya Slepian/Black Press Media)
Elections BC should run Langley byelection, council says

A lack of mail-in capacity during a pandemic is one reason for the request

B.C. Health Minister Adrian Dix and provincial health officer Dr. Bonnie Henry update the COVID-19 situation at the B.C. legislature, Nov. 23, 2020. (B.C. government)
B.C. sets another COVID-19 record with 887 new cases

Another 13 deaths, ties the highest three days ago

Despite rumours, Surrey RCMP say they are not issuing tickets to people if they are driving in a vehicle with others from a different household. (File photo)
COVID-19 tickets: No, RCMP aren’t checking vehicle occupancies, restaurant tables

Enforcement about education, not punishment says Surrey RCMP Cpl. Joanie Sidhu

Alexandre Bissonnette, who pleaded guilty to a mass shooting at a Quebec City mosque, arrives at the courthouse in Quebec City on February 21, 2017. THE CANADIAN PRESS/Mathieu Belanger - POOL
Court strikes down consecutive life sentences; mosque shooter has prison term cut

The decision was appealed by both the defence and the Crown

Gold medallists in the ice dance, free dance figure skating Tessa Virtue and Scott Moir, of Canada, pose during their medals ceremony at the 2018 Winter Olympics in Pyeongchang, South Korea, Tuesday, Feb. 20, 2018. THE CANADIAN PRESS/AP-Charlie Riedel
Olympic champions Virtue, Moir and Tewksbury among 114 Order of Canada inductees

Moir and Virtue catapulted to national stardom with their gold-medal performances at the Winter Olympics in 2018

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Shoppers line up in front of a shop on Montreal’s Saint-Catherine Street in search of Black Friday deals in Montreal, Friday, Nov. 27, 2020. THE CANADIAN PRESS/Paul Chiasson
Black Friday shopping in a pandemic: COVID-19 closes some stores, sales move online

Eric Morris, head of retail at Google Canada, says e-commerce in Canada has doubled during the pandemic.

Chilliwack school board trustee Barry Neufeld is taking heat over using a ableist slur to refer to three Black Press employees. (Paul Henderson/ Progress file)
BC School Trustees Association president keeps heat on Chilliwack Trustee Barry Neufeld

In a news release, Stephanie Higginson called on voters to take careful note of Neufeld’s behaviour

School District 27 announced the first confirmed case of COVID-19 this week (Nov. 23) at Lake City Secondary School Williams Lake campus. (Angie Mindus photo - Williams Lake Tribune)
Entire gym class at northern B.C. high school isolating after confirmed COVID case

Contact tracing by Interior Health led to the quarantine

Most Read