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

Fresgo Inn chef/owner Walter Wolff in the kitchen of the self-serve restaurant in Whalley. “I’ve got no plan for the retirement,” he says. “My customers always ask me, but as long as I feel good, healthy, I like to come here.” (Photo: Tom Zillich)
VIDEO: Surrey’s Fresgo Inn chef keeps cooking comfort food as COVID cuts into customers

‘I’ve got no plan for the retirement,’ says 40-year Whalley pillar Walter Wolff

Shawn Canil, a Cloverdale-area resident, turns heads with the truck he’s decorated for Christmas. (Photo: Tom Zillich)
Truck’s Christmas decorations lift spirits on Cloverdale man’s commute

‘When I see them smiling, I know it’s worth it,’ pickup driver Shawn Canil says

A reminder to students at Surrey’s Strawberry Hill Elementary to physically distance during the COVID-19 pandemic. (Photo: Lauren Collins)
Surrey school district sends out 16 exposure notices overnight

INTERACTIVE TABLE: Search for schools, organize by exposure dates

At least one person received life-threatening injuries when a car collided with a semi truck in South Surrey on Friday morning. (Brenda Anderson photo)
VIDEO: South Surrey crash sends one to hospital in critical condition

Road closures in effect after collison between car and semi-truck

South Surrey and White Rock Chamber of Commerce. (Contributed photo)
South Surrey and White Rock Chamber of Commerce to host virtual COVID-19 town hall

Online event to include local politicians and representatives from Fraser Health, WorkSafe BC

Pickleball game in Vancouver on Sunday, November 8, 2020. B.C.’s public health restrictions for COVID-19 have been extended to adult team sports, indoors and outside. THE CANADIAN PRESS/Darryl Dyck
711 more COVID-19 cases detected in B.C. Friday

‘Virus is not letting up and neither can we’

Demonstrators, organized by the Public Fishery Alliance, outside the downtown Vancouver offices of Fisheries and Oceans Canada July 6 demand the marking of all hatchery chinook to allow for a sustainable public fishery while wild stocks recover. (Public Fishery Alliance Facebook photo)
Angry B.C. anglers see petition tabled in House of Commons

Salmon fishers demand better access to the healthy stocks in the public fishery

(Hotel Zed/Flytographer)
B.C. hotel grants couple 18 years of free stays after making baby on Valentines Day

Hotel Zed has announced a Kelowna couple has received free Valentines Day stays for next 18 years

Farmers raise slogans during a protest on a highway at the Delhi-Haryana state border, India, Thursday, Dec. 3, 2020. Prime Minister Justin Trudeau rejected the diplomatic scolding Canada’s envoy to India received on Friday for his recent comments in support of protesting Indian farmers. Tens of thousands of farmers have descended upon the borders of New Delhi to protest new farming laws that they say will open them to corporate exploitation. THE CANADIAN PRESS/AP-Manish Swarup
Trudeau brushes off India’s criticism for standing with farmers in anti-Modi protests

The High Commission of India in Ottawa had no comment when contacted Friday

Nurse Kath Olmstead prepares a shot as the world’s biggest study of a possible COVID-19 vaccine, developed by the National Institutes of Health and Moderna Inc., gets underway Monday, July 27, 2020, in Binghamton, N.Y. U.S. biotech firm Moderna says its vaccine is showing signs of producing lasting immunity to COVID-19, and that it will have as many as many as 125 million doses available by the end of March. THE CANADIAN PRESS/AP-Hans Pennink
Canada orders more COVID vaccines, refines advice on first doses as cases reach 400K

Canada recorded its 300,000th case of COVID-19 on Nov. 16

Apartments are seen lit up in downtown Vancouver as people are encouraged to stay home during the global COVID-19 pandemic on Thursday, Dec. 3, 2020. British Columbia’s deputy provincial health officer says provincewide data show the most important area B.C. must tackle in its response to the COVID-19 pandemic is health inequity. THE CANADIAN PRESS/Marissa Tiel
Age, income among top factors affecting well-being during pandemic, B.C. survey shows

Among respondents earning $20,000 a year or less, more than 41 per cent reported concern about food insecurity

Chilliwack General Hospital. (Jenna Hauck/ Progress file)
Chilliwack mother upset about son’s alleged suicide attempt after hospital discharge

Rhonda Clough said 34-year-old son suffering with bipolar disorder should have been kept in hospital

Victoria-based driving instructors are concerned for their own and the community’s safety with the continued number of residents from COVID hotspots in the Lower Mainland coming to the city to take their driving road tests. (Black Press Media file photo)
Students from COVID hotspots travel to Vancouver Island for driving tests

Union leader calls on government to institute stronger travel ban

British Columbia Health Minister Adrian Dix wears a face mask to curb the spread of COVID-19, during an announcement about a new regional cancer centre, in Surrey, B.C., on Thursday, August 6, 2020. THE CANADIAN PRESS/Darryl Dyck
PHSA bought faulty respirators; spent money on catering, renovations: Dix

Such spending included ‘unnecessary, unbudgeted renovations’ to the authority’s headquarters in Vancouver

Most Read