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

The Abbotsford Police Department is investigating a shooting on Adair Avenue on Saturday night. (Photo by Dale Klippenstein)
Drive-by shooting in Abbotsford targeted home with young children, police say

Investigators believe home was mistakenly targeted by assailants

Morning mist clears over the Hope Slough at Camp River Road on Sunday, Nov. 29, 2020. (Jessica Peters/ Chilliwack Progress)
WEATHER: Sunny skies in the forecast for Chilliwack and Abbotsford

Rain and wind expected Sunday night through Monday morning, then clear skies

Email news@ahobserver.com
LETTER: A thank you from the local Legion

Royal Canadian Legion, Branch 32 thanks the community

LEFT: Krista Macinnis, with a red handprint across her face that symbolizes the silencing of First Nations people, displays the homework assignment that her Grade 6 daughter received on Tuesday. (Submitted photo)
RIGHT: Abbotsford School District Kevin Godden says the district takes responsibility for the harm the assignment caused.
Abbotsford school district must make amends for harmful residential school assignment: superintendent

‘The first step is to unreservedly apologize for the harm … caused to our community’: Kevin Godden

File photo
Outdoor recreation generates close to $1 billion annually in Fraser Valley: report

Camping, hiking and sportfishing generate the most spending, report finds

(Dave Landine/Facebook)
VIDEO: Dashcam captures head-on crash between snowplow and truck on northern B.C. highway

Driver posted to social media that he walked away largely unscathed

Black Press Media and BraveFace have come together to support children facing life-threatening conditions. Net proceeds from these washable, reusable, three-layer masks go to Make-A-Wish Foundation BC & Yukon.
Put on a BraveFace: Help make children’s wishes come true

Black Press Media, BraveFace host mask fundraiser for Make-A-Wish Foundation

A Canadian Pacific freight train travels around Morant’s Curve near Lake Louise, Alta., on Monday, Dec. 1, 2014. A study looking at 646 wildlife deaths along the railway tracks in Banff and Yoho national parks in Alberta and British Columbia has found that train speed is one of the biggest factors. THE CANADIAN PRESS/Frank Gunn
Study finds train speed a top factor in wildlife deaths in Banff, Yoho national parks

Research concludes effective mitigation could address train speed and ability of wildlife to see trains

A airport worker is pictured at Vancouver International Airport in Richmond, B.C. Wednesday, March 18, 2020. THE CANADIAN PRESS/Jonathan Hayward
Canada extends COVID restrictions for non-U.S. travellers until Jan. 21 amid second wave

This ban is separate from the one restricting non-essential U.S. travel

Langley RCMP issued a $2,300 fine to the Riverside Calvary church in Langley in the 9600 block of 201 Street for holding an in-person service on Sunday, Nov. 29, 2020, despite a provincial COVID-19 related ban (Dan Ferguson/Black Press Media)
Updated: Langley church fined for holding in-person Sunday service

Calvary church was fined $2,300 for defying provincial order

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

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

(File photo)
Vancouver police warn of toxic drug supply after 7 people overdose at one party

Seven people between the ages of 25 to 42 were taken to hospital for further treatment.

A man walks by a COVID-19 test pod at the Vancouver airport in this undated handout photo. A study has launched to investigate the safest and most efficient way to rapidly test for COVID-19 in people taking off from the Vancouver airport. The airport authority says the study that got underway Friday at WestJet’s domestic check-in area is the first of its kind in Canada. THE CANADIAN PRESS/HO, Vancouver Airport Authority *MANDATORY CREDIT*
COVID-19 rapid test study launches at Vancouver airport for departing passengers

Airport authority says that a positive rapid test result does not constitute a medical diagnosis for COVID-19

Most Read