OTTAWA –
A Mi’kmaw attorney for the community at the center of a backlash against a self-managed lobster fishery says she’s “very hopeful” about a new Senate report that calls for full enforcement of indigenous fishing rights.
“I was pleasantly surprised, to be honest,” said Rosalie Francis, a member of Nova Scotia’s Sipekne’katik First Nation.
But elsewhere in the countryside, the surprise is considerably less pleasant. There are concerns that the report, titled “Peace in the Water,” is instead fueling anger in communities where lobster is a livelihood.
Sipekne’katik launched a self-regulating fishery in 2020 in the waters of St. Mary’s Bay. It’s part of Lobster Fishing Area 34 — or LFA 34 — a stretch of coastline that’s home to one of the country’s most lucrative fisheries, where roughly a fifth of all Canadian lobsters are hauled in each year.
But this prosperity did not always include the indigenous population.
When Sipekne’katik set out traps with their own tags months before the start of the 2020 fishing season, there was sometimes a backlash from the local community. A pound of lobster was deliberately burned to the ground and protesters formed an angry mob.
In response, Fisheries and Oceans Canada has increased enforcement in the water and on piers.
Francis said he let people “go to the water and exercise their right as criminals.”
The issue boils down to the federal government’s interpretation of the Supreme Court of Canada’s 1999 Marshall decision, which said the 1760-61 treaties guaranteed the Mi’kmaq, Wolastoqiyik and Peskotomuhkati had the right to fish for what is called a moderate livelihood.
Canada interprets this to mean that indigenous peoples should have a share of the commercial fishery and negotiates that access. It has given $550 million to local communities in the years since to increase its participation, and Fisheries and Oceans reports that local landings in 2018 were estimated at $140 million.
But legal experts disagree that the court meant only to allow entry into a unilaterally regulated fishery. Constance McIntosh, a law professor at Dalhousie University, said the ruling recognizes more than a treaty-protected right to fish.
“Other Supreme Court of Canada case law found that when Indigenous peoples have those rights, they come with management rights,” she said. “So, the power to decide how that right will be exercised by their own people.”
Dan Christmas is on the Senate Fisheries Committee and is the first Mi’kmaw appointed to the upper chamber. The permanent solution is to codify the Marshall decision into Canadian law, he said.
“It would be a specific instrument that would allow rights-based fishing to be implemented on its own, rather than integrated with the existing commercial fishing structure, because they are not compatible.”
Some communities, such as the Listuguj First Nation on the Gaspé Peninsula, have signed rights and reconciliation agreements defining fisheries management. For Listuguj Chief Darcy Gray, the next step is for Canada to recognize this right to self-government.
“It’s not necessarily that we can go out (fishing) when we want and how we want,” Gray said. “That’s part of that conversation.”
Representatives of the commercial fishing industry say they are disappointed they were not invited to speak to the Senate as it prepared the report on indigenous rights.
It’s “adding fuel to the fire” in an area where tensions have remained high since 2020, said Colin Sproul, president of the United Fisheries Conservation Alliance, which has about 1,900 members.
Sproul wants to see the creation of a “contract fishery” that is exclusive to indigenous people and also regulated “in a strict manner.”
“I can’t think of a worse action the federal government could take than to follow the senators’ patently stupid recommendations to expropriate fishing access from Atlantic Canadians,” he said.
“This is based on a distorted sense of reality that fishing communities in Atlantic Canada are responsible for the horrors of colonialism.”
Gray said reconciliation requires an adjustment from everyone.
“You have to look at the historical context in which we did this to survive for thousands of years, then we were systematically shut out,” he said. “It’s become illegal for us to take care of ourselves, and that’s wrong.”
Fisheries Minister Joyce Murray was not available for an interview. In a statement, her office said it was reviewing the report.
“We’re not naive about it,” Christmas said. “We know this is a controversial topic and we know there will be some who will not want any change at all.”
The Senate calls for fisheries to withdraw and Crown-Indigenous relations to lead the negotiations.
“I’d like to think the temperature has dropped quite a bit in the last two years,” said Jaime Baptiste, parliamentary secretary to the minister for indigenous relations.
While he believes the report can “take steps in the right direction,” Batiste said he no longer speaks only from the perspective of a Mi’kmaw lawmaker when evaluating his own government’s actions.
“Have we done enough? Can we do more? That’s a good question,” he said. “I think we’re moving forward at the pace of our stakeholders.”
Francis said he hoped the federal government would act quickly. “For Canada to ignore this is to ignore itself.
This report by The Canadian Press was first published on July 19, 2022.
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