No Resolution to Nova Scotia Lobster Dispute Any Time Soon
On October 14, 2020, during a routine meeting of the House of Commons Standing Committee on Fisheries and Oceans, committee member Jaime Battiste, the Liberal MP from Sydney, N.S. and the first Mi’kmaw MP in the House of Commons, brought forward a motion that the committee immediately undertake a study to examine the implementation of the Mi’kmaw constitutionally protected treaty right to fish in pursuit of a moderate livelihood.
He pointed out that he had woken up that morning to disturbing accounts of violence by non-indigenous fishers in Nova Scotia who had set a van on fire and ransacked two lobster pounds holding lobster fished by Mi’kmaq fishers from the Sipekne’katik First Nation, while RCMP officers stood by without intervening.
A month earlier, on September 17—the 21st anniversary of the 1999 Supreme Court ruling of R. v. Marshall, which upheld the right of Mi'kmaq, Maliseet and Passamaquoddy First Nations in Nova Scotia, New Brunswick, Prince Edward Island and the Gaspésie region of Québec to fish for a moderate livelihood as outlined in the 1760/1761 Peace and Friendship Treaty—Sipekne’katik had launched a moderate livelihood fishery in St. Mary’s Bay in southwest Nova Scotia.[1]
After over twenty years of failing to reach an agreement with the Department of Fisheries and Oceans (DFO) on how the Supreme-Court-upheld right to fish for a moderate livelihood should be implemented, Mi’kmaw patience had run out. Sipekne’katik drew up their own plan, issued their own licenses, and sent fishers out onto St. Mary’s Bay outside of the fishing season ordained by DFO and without DFO licenses—making it illegal in the eyes of the DFO and non-indigenous fishers.
Tensions, which had been high for several years already in southwestern Nova Scotia because of widespread Mi’kmaw out-of-season fishing, erupted into violence the night before the October 14 meeting of the committee, and Battiste urged the committee to act immediately. He noted that the issues were complex and in large part beyond the scope of the committee’s work, but because negotiations over institutionalizing treaty rights to fish had been carried out by DFO, this then fell under the purview of the committee.
As he said, “I believe this committee, by examining the implementation of the Mi’kmaw constitutionally protected treaty rights to fish in pursuit of a moderate livelihood and evaluating the current Rights and Reconciliation Agreement process, can play a proactive role in this ongoing situation and inform standards and practices that could prevent such a crisis from happening again.” His motion was discussed, amended, and then passed during the subsequent meeting of the committee on October 19; hearings commenced on October 21.
Twenty-one years earlier, the same committee, then chaired by Liberal Prince Edward Island MP Wayne Easter and comprised of different members, had held extensive hearings surrounding implementation of the Marshall decision and issued 28 recommendations to DFO, including that “Any transfer of access to fisheries resources to First Nations communities must be accomplished through a federal-government-funded voluntary buyback of a portion of existing commercial licences as they become available,” and that “Licences must be transferred to First Nations communities as communal licences.”[2]
The federal government accepted those recommendations and created the Marshall Response Initiatives, which spent nearly $600 million purchasing commercial licences from non-indigenous fishers and providing training and equipment to First Nations fishers. By 2008, East Coast First Nations held over 1,200 commercial fishing licences—representing 10.5 per cent of all the licences available to fish during the DFO-regulated fishing season (even though the Marshall decision had upheld Donald Marshall’s right to catch and sell eel outside the DFO-regulated fishing season).[3]
The Canadian Government and DFO apparently hoped that this would be the end of the matter; however, the Mi'kmaq, Maliseet, and Passamaquoddy saw things quite differently. While most bands, in the end, signed agreements with DFO and accepted communal commercial fishing licences, they were very clear that these licences did not fulfill their right to fish in pursuit of a moderate livelihood as outlined in the 1760 and 1761 Peace and Friendship Treaty.[4]
First Nations were told that the commercial licences were for the purpose of providing interim access and the matter of their treaty rights would be taken up again in the future. The text of all agreements signed with DFO therefore contained the clause that the agreements were “without prejudice to the positions of parties on rights.” The First Nations had in no way surrendered their rights to fish for a moderate livelihood by signing these agreements, and there was no progress in negotiating these treaty fishing rights in the subsequent 20 years.[5]
In December 2017, the Trudeau Government appointed Jim Jones to undertake a new round of negotiations with East Coast First Nations. Jones apparently had no mandate to negotiate treaty rights, but simply returned to the table with offers of “Rights Reconciliation Agreements,” consisting of more money and additional communal commercial fishing rights under the established DFO fishing scheme. Elsipogtog and Esgenoôpetitj First Nations in New Brunswick and the Viger First Nation in Quebec have signed such agreements with DFO; the Nova Scotia Mi’kmaq have refused, insisting that the time has come for the government to respect their treaty rights.
In September 2020, Sipekne’katik launched its own moderate livelihood fishery in St Mary’s Bay; in October, Membertou Chief Terry Paul stepped down as Co-chair and Lead Fisheries Negotiator for the Assembly of Nova Scotia Mi'kmaw Chiefs and threw his weight behind the Sipekne’katik’s initiative. Chief Paul announced that his community would also launch its own livelihood lobster fishery—as did other Mi’kmaw bands.
Several days after Mr. Battiste called for the emergency hearings on Mi’kmaw treaty fishing rights in his committee, the House of Commons held an emergency debate on the escalation of violence against Mi’kmaw lobster fisheries in Nova Scotia. At the same time, Sipekne’katik was granted a temporary court injunction against any further interference with its fishing activities in St. Mary’s Bay, and the band continued to fish for lobster until it closed its season on December 15. The Standing Committee on Fisheries and Oceans continued to hold hearings on the issue until December 2, 2020 and began reviewing its draft report on February 17, 2021.
However, on March 3, 2021, before the committee was able to issue its recommendations, Bernadette Jordan, the Minister of Fisheries, Oceans, and the Canadian Coast Guard, preempted the committee’s report by issuing a directive stating that she intended to license First Nations’ moderate livelihood fisheries in Atlantic Canada—but only within the DFO-mandated commercial season, She also indicated that increased numbers of DFO officers and Canadian Coast Guard vessels would be deployed to reign in out-of-season fishing.
Nova Scotia Mi'kmaw chiefs quickly responded with unified opposition to the minster’s conditions for their moderate livelihood fisheries, claiming the limitations on their rights were imposed without adequate consultation or scientific justification. Non-native commercial fisherman greeted the decision with relief and approval. Nothing has been resolved, and the stage is set for another round of tension and confrontation later this year: Sipekne’katik plans to resume its moderate livelihood lobster fishery in St. Mary’s Bay on June 1, 2021, after the DFO-mandated commercial lobster season has closed.[6]
Constitutionally protected treaty rights
The Mi’kmaw position on their right to fish under their own rules and in their own seasons is anchored in Section 35 (1) of the 1982 Constitution Act, which states that “The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.”
The 1990 Supreme Court decision in the R v Sparrow case was the first time the Supreme Court stated that Section 35 of the Constitution protected the rights of Aboriginal peoples to fish—in this case, for food, social and ceremonial (FSC) purposes (but not to sell their catch). In the ruling, the Supreme Court stated that Section 35 clearly limits the regulatory powers of the Canadian Government with respect to indigenous treaty rights. These rights can only be infringed for valid reasons—such as conservation of fish stocks—but indigenous rights must be given priority and there must be “as little infringement as possible in order to effect the desired result.” Furthermore, the aboriginal group in question must be meaningfully consulted with respect to the regulation measures being implemented.[7]
The 1999 Supreme Court decision in the Donald J. Marshall Jr. case went even further than the Sparrow decision, affirming that the Mi’kmaq have a treaty right to fish in support of a moderate livelihood (in other words, they can sell their catch). The court reiterated what had been said in the Sparrow case, namely the Canadian Government can regulate indigenous treaty rights only for valid reasons, with as little infringement as possible, and in consultation with the affected bands. These principles have come to be known as the “Badger test,” referring to yet another Supreme Court decision where they have been affirmed.[8]
This is the basis for the unified opposition of the Mi’kmaq to Minister Jordan’s March 2021 limitation of moderate livelihood fisheries to the DFO-mandated commercial fishing season. According to Chief Gerald Toney, current Fisheries Lead for the Assembly of Nova Scotia Mi'kmaq Chiefs, "Our nation is shocked by what the minister said. For them to make a unilateral decision without consultation was extremely shocking…We will continue to reject the minister’s unilateral control of our rights-based fishery and will hold her to account to meet her legal obligations as described in (the) Marshall and Badger (decisions).”[9]
The stakes in this matter are high: the Mi’kmaq claim that the 1760/1761 Peace and Friendship Treaty, which is upheld by Section 35 of the Constitution, gives them the right to govern their own fisheries and implement their own fishery management and conservation plan, including number of traps, seasons, and other conditions.DFO, on the other hand, sees itself as the regulator of all of Canada’s fisheries—a view very much supported by non-native fishers in Nova Scotia, who are of course forced to comply with DFO regulations and wish to see Mi’kmaw fishers in Atlantic Canada subject to the same rules. The issue is unlikely to be resolved for many years, until yet more costly and time-consuming legal cases wind their way through the legal system and are finally ruled on by the Supreme Court.
It is instructive to take a closer look at the evidence presented before the Standing Committee. Most of the key players in the conflict appeared and clearly outlined their position, thus providing valuable insight into the legal, political, social, and economic aspects of the conflict.
Mi’kmaq emphasize treaty rights and sovereignty
Chief George Ginnish of the Natoaganeg First Nation, who is also Co-chair of Mi'gmawe'l Tplu'taqnn in New Brunswick, outlined the historical context of the conflict to the committee: “Mi'kmaq are signatories to peace and friendship treaties with the British Crown…Our ancestors negotiated treaties in which they were promised that we would be allowed to continue to hunt and fish, as we had for thousands of years, and to trade in these goods. Signing these agreements was intended to bring a peaceful relationship between our people and yours. Unfortunately, this has not been the case. DFO rules have expressly been designed to systemically exclude us from the fishery.
We had hoped that the Marshall decision would usher in a new era of peace and prosperity for our communities. We hoped that we would be able to work together to implement our right to a moderate livelihood in a way that was respectful of our rights as a self-governing people and in accordance with Mi'kmaw laws. Again, this has not been the case…instead of implementing a treaty-based fishery, DFO offered funding to bands to purchase licences, vessels, and gear from existing fishers so that we could participate in the existing commercial fishery under DFO's rules. This was designed to appease non-indigenous fishers, not implement Mi'kmaw rights. While some Mi'kmaw communities refused to sign, many communities, impoverished and long denied any access to fisheries, felt compelled to sign these one-sided agreements.We were told that these were interim measures, that the inequalities would be rectified, and that our rights would be implemented through trilateral negotiation tables…For the next decade we made little progress as DFO refused to negotiate. This was supposed to change in 2017 when the federal government came to our table with a new fisheries mandate and a new negotiator.
When our chiefs first met with the newly appointed federal negotiator, Jim Jones, in December 2017, we made clear that we did not want this negotiation process to be a repeat of the Marshall response initiative. We wanted DFO to negotiate with the Mi'kmaq as a collective and respect our need to implement our treaty rights in a way that was respectful of our right to self-determination and of our nation-to-nation relationship.
Unfortunately, again this has not been the case. DFO came to the table with a mandate that they unilaterally developed. The mandate is to provide funding to purchase more commercial access and not to define and implement a true livelihood fishery.
This needs to change. In collaboration with the Mi'kmaq, the Government of Canada needs to revisit and revise DFO's negotiation mandate. The mandate must recognize our right to self-determination, and it must recognize that a rights-based fishery must be self-governing in accordance with Mi'kmaq laws.”
Chief Darcy Gray of Listuguj Mi’kmaq Government, put it this way: “Listuguj is party to the Peace and Friendship Treaties of 1760 and 1761. We have a right to fish and to sell fish to earn a moderate livelihood. …The DFO insists on forcing Mi'kmaq treaty fisheries into the mould that was developed for non-indigenous commercial fisheries. We do not fit that mould…As it is, the DFO forces the Mi'kmaq to fish in a legal grey area. It makes us angry. It makes non-indigenous fishers angry.”
Chief Wilbert Marshall of Potlotek First Nation made the same point: “DFO continues to look at a treaty right to a moderate livelihood through a colonial lens. They have continued to maintain their position that we should fish under their rules, using their licences, and their reasons. We have the right to self-govern, and that includes the right to govern our fisheries and to develop our own sustainable livelihood fisheries, separate from the commercial fisheries.”
Justin Martin, Fishery Coordinator for the Assembly of Nova Scotia Mi'kmaw Chiefs: “Mr. Chair, this is not a regulatory issue; this is a rights issue. This is about the Mi'kmaw Nation managing our fishery in accordance with our cultural values and principles, which is our inherent right. This government must change how they view the primary function of this control when addressing the rights of indigenous peoples. We must decolonize that control by providing mandates to work with our indigenous peoples—not to control them, but to co-manage the fisheries and codevelop the lands to empower the indigenous peoples of this country.”
In the end, it was perhaps Chief Paul J. Prosper, Assembly of First Nations Regional Chief, Nova Scotia and Newfoundland, who most succinctly summarized the frustration of First Nations fishers: “It was a rude awakening for me to realize that just because you have an aboriginal and treaty right it does not mean that the government will honour or uphold that right.”
Non-native fishers: conservation and livelihood protection
The non-native fishers who appeared before the committee saw things quite differently. They emphasized how much the federal government had already done to provide the Mi’kmaq access to the fisheries. As Bernie Berry, president of the Coldwater Lobster Association, said: “Industry believes the Crown has fulfilled its fiduciary responsibility concern in the Marshall decision… Since 1999, almost $600 million has been allocated to buy first nations access into the commercial fishery. Today, another process is under way to negotiate a moderate livelihood fishery that will cost the Crown hundreds of millions of additional dollars.”
“The Marshall initiative,” he said, “along with other government programs and the ingenuity of First Nations, has created an economic success story within Atlantic Canada First Nations. This success was documented in a recent Macdonald-Laurier Institute report, which showed the total on-reserve fishing revenue for Mi'kmaq and Maliseet in Nova Scotia province grew from $3 million in 1999 to $152 million in 2016…The report…highlighted impressive first nations fishing fleets, the dramatic increase in indigenous workers in the sector, and the substantial financial benefits flowing to these communities.”
Martin Mallet, Executive Director of the Maritime Fishermen's Union, added: “It's also the indirect revenues from other activities that have been generated because of the fishery. Some of the bands are buying processing plants and processing their own lobster and snow crab and other fisheries. These employ many people from their groups, as well as local non-indigenous workers in the coastal communities. In some instances, about 10 to 15 percent of band members participate in jobs related to fishery, either directly on the water or at the plants.”
This point was reiterated by Peter Connors, President of the Eastern Shore Fisherman's Protective Association: “The federal government's response to the Marshall decision saw First Nations integrate into the commercial fishery and receive some 10 to 13 percent of a fully subscribed industry…The figures show that there's at least a proportionate amount, and maybe double, the proportionate amount of access to the fishery.”
Furthermore, as Connors pointed out, “There's access within the bands that could provide a moderate livelihood… most of this access is being leased out and fished by people outside of the bands.”
Colin
Sproul, President of the Bay of Fundy Inshore Fishermen's Association, made the
same point when asked whether the Mi’kmaq had adequate access to the fisheries:
“What you're asking begs the question why indigenous people still do not have
access to the fishery, given that the federal government spent more than $600
million buying fishery access from non-indigenous communities and delivering it
to First Nations. It's at the heart of this issue, and it's not being
discussed…The issue is that the majority of that access is then leased back and
rented to non-indigenous fishing corporations, effectively dispossessing First Nations
people of their legitimate right to fish.”
Sproul emphasized
the significance of the fishing industry in Nova Scotia: “Last year, the
fishing
industry exported well over two billion dollars' worth of seafood from
Nova Scotia,” he said, “We are not a quaint cottage industry. Fishing is the economic
powerhouse of this province. It employs 26,000 people directly and 26,000
people indirectly…This is truly the lifeblood of our economy and the only
bulwark between the current prosperity enjoyed in many coastal communities here
and the drastic economic decline evident elsewhere in rural Atlantic Canada.”
Melanie Sonnenberg, President of the Canadian Independent Fish Harvester's Federation, also emphasized the fear of fishers with large investments in the industry and claimed that the fear was driven by a lack of communication: “We are told repeatedly that we really don't have a place, that this is government to government…we have to know where we will fit…We need to find a place where we can understand what is being discussed about us, yet without us… Presently, because we don't know any of this, we don't understand what the future holds for us…”
She explained, “It isn't about denying any rights. It isn't about not acknowledging what has been established by the Supreme Court. It is about making sure that we have a better understanding and that we have some protection. We have an industry that has heavily invested in fishing. We have thousands of fishermen across this country. They've established our coastal communities, as we know them, and we know that the prosperity in these communities has grown as of late. We need to recognize that and figure out a way, collectively, to ensure that everybody is protected, and that we have some sense of community together. This isn't about dividing and conquering; this is about working together for the best of everybody.”
The lack of communication on the part of the federal government was the most important complaint registered by all non-indigenous fishers. Kevin Squires, President of Local 6, Maritime Fishermen's Union, told the committee: “We don't feel that we've been heard. We have significant problems with the fact that DFO has failed to figure out a way to include us. We understand the nature of nation-to-nation negotiations, but there has to be a place for commercial harvesters.”
Bobby Jenkins, President of the Prince Edward Island Fishermen's Association, agreed: “We currently find ourselves in a situation where, as commercial harvesters, we are not represented in important discussions that impact the resource we all depend on for our livelihood.”
Likewise, Ian MacPherson, Executive Director of the Prince Edward Island Fishermen’s Association: “We were told that the mandate was for nation-to-nation negotiations. We were not considered a stakeholder and wouldn't be involved in any of those talks…Certainly, a number of groups, including the PEIFA, have been frustrated that we haven't had direct input.”
One regulator or 34 different sets of management plans?
Given the enormous economic stakes involved, non-native fishers all agreed with Bernie Berry, when he insisted, “There can only be one regulator and one set of rules for all. We cannot entertain any thought of having multiple regulatory regimes. If there are multiple regulators for one fishery it will only lead to confusion, non-compliance, lack of science, lack of enforcement, etc. It simply will not work.”
Or as Colin Sproul put it, “I think it's really the heart of folly to think that anyone, no matter how well-intentioned, could manage one lobster resource with 34 different sets of management plans as well as the accepted one…What is evident is how important it is for all people who participate in commercial fisheries to operate under one set of rules.”
DFO’s failure to enforce the current lobster seasons is what has so angered non-native fishers and ultimately led to the violence at St. Mary’s Bay, according to Sproul: “Let's be clear on what is really at the centre of this issue. Over the last three years, Justin Trudeau's cabinet, as a tactic at the negotiating table, has stopped enforcing existing Canadian fishery policy and law because they don't want to sour the mood at the table. That lack of law enforcement is precisely what led to the chaos and the animosity between fishermen who have peacefully coexisted… the government has good intentions to reach Rights Reconciliation Agreements with the nations, but the problem is that as a tactic during the negotiations they stopped enforcing the law. That only empowered people to keep fishing outside of regulations. It has obviously been a failed tactic.”
Sproul’s assertion was supported by Gary Hutchins, DFO Officer and Detachment Supervisor for almost 32 years, who claimed that Minster of Fisheries and Oceans Jordan “had officers stand down from conducting a lawful enforcement of an illegal fishery… I can tell you that fishery officers are embarrassed and deflated and disillusioned. They have no faith in their department anymore because of this…My goal was to enforce those quotas. That never happened. We were not allowed to enforce them... I experienced that for years, and it was very frustrating. It's one of the reasons I left. It was because I could not do my job effectively anymore.”
Colin Sproul explained to the committee why out-of-season fishing is centered on St. Mary’s Bay: “It's a shallow, warm coastal bay that acts as a lobster moulting and breeding ground. During the warm summer months, lobsters gather there in incredibly dense concentrations. What it means is that when fishing takes place out of season, the catchability of traps in that area is considered by many to be 10:1, compared to fishing during the commercial season…”
Hutchins made the same point: “At the end of the lobster season every May, a huge number of lobsters move into that shallow, warm bay. At any given time in the summer, you can get as many as 50 lobsters in a trap. Those lobsters are loaded with eggs. They're soft; they die. They smother and they cannibalize each other. Imagine 50 lobsters in a trap. What happens is when they land those lobsters, a lot of them are dead.”
The amount of lobster coming out of St. Mary’s Bay during the off season is not tracked, but Hutchins believes it is “in excess of one million pounds or more per year coming out of there. I was in the middle of doing some investigations on exactly how much lobster was coming out. I had put a proposal through to our regional office that I wanted to go down and to check every vessel that came in…However, my department would not let me do that, so I cannot tell you exactly what was taking place as far as the removal of lobsters goes.”
Alan Clarke, a retired Department of Fisheries and Oceans officer who was Chief of Enforcement, South West Nova Scotia Area for 25 years, supported Hutchins’ analysis: “The quantity of traps being issued are reaching commercial quantities. When you're catching commercial quantities, that increases the incentive to sell commercial quantities illegally. What happens is not so much the indigenous fishermen, but that the non-indigenous lobster poachers and the unscrupulous lobster buyers are conducting their illegal activities under the guise of a legitimate food fishery.”
Responding to a question about how much of the lobster caught under the food and ceremonial fishery makes its way into commercial sales, Hutchins replied: “Ninety percent of it is. We know that's the case through years of investigation, and there are a number of buyers in Southwest Nova who are buying lobster and haven't hidden it from any of their community members. They are buying it and selling it, and we've been trying to track it for years. I've been involved in several cases. In the last one, charges were laid and a conviction was upheld, and that was because they were buying indigenous lobsters and selling them.” (In August 2020, Guang Da International was convicted of the illegal sale of lobsters caught with FSC licences issued to members of Sipekne’katik First Nation.[10])
Reproductive cycles underlie lobster fishing seasons
Colin Sproul sees a direct relationship between all these illegal sales and a 65% decline in lobster landings in St Mary’s Bay during the official lobster season between 2016-2019, at a time when landings remained strong across the wider lobster district and Atlantic Canada: “It is never appropriate to fish in a lobster breeding ground during the closed season, because the lobsters are soft-shelled at that time and really susceptible to… all the damage that's taking place by out-of-season fishing.”
At the right time, as the female chooses, she fertilizes the eggs with sperm and releases the eggs, and then she glues them to the underside of her abdomen. The females then carry the eggs for 10 to 11 months. Delayed release of eggs means that the take of a female before she releases her eggs and becomes berried [bearing eggs externally] is basically the same as the take of a berried female: her production then is lost to recruitment.
[Research found that] the growth, maturity, moult and egg release periods of the lobster varied around the Maritimes, based on the local environment. In the Gulf of St. Lawrence, because of warm summer temperatures females matured at a younger age, about five to six years. They were soft-shelled by late June—that meant they could be inseminated at that time—and they usually released the eggs by August.
In southwest Nova Scotia—lobster district 34 [St. Mary’s Bay], about which we're talking a lot—the females mature much later, at seven to eight years. They're soft-shelled in July and August, and egg release does not occur until October or November.
The seasons,
then, were established based on these findings and the considerations of
marketing and desirability of lobster. Soft-shell lobsters …are not only
susceptible to high mortality while they're being handled; they are also at a
high risk of being attacked, killed, and eaten by other lobsters when they're
in the lobster trap...
Now, the problem with all of this is that the effects of the lobster exploitation out of season will take anywhere from 7 to 10 years to be evidenced…Over-exploitation of female lobsters by one means or another in the long-term fishery whereby soft-shell lobsters are caught, females that have not extruded eggs are caught, is going to collapse the fishery sooner or later.”
Representatives of non-indigenous fishers all echoed Dadswell’s concerns about out-of-season lobster fishing, seeing it as a threat to conservation and, ultimately, to the livelihoods of their communities. First Nations representatives, while emphasizing their constitutionally protected treaty right to fish under their own governance, tried to reassure the committee that they were as committed to conservation as anyone else. They often mentioned the fundamental Mi’kmaq concept of Netukulimk—taking only you need to sustain your family and community and leaving the rest for the next generation—which they said underlies everything they do.
Negotiation or enforcement?
It is a complex, intractable problem. As Richard Williams, Research Director for the Canadian Council of Professional Fish Harvesters, told the committee: “In the medium to long term, we are not going to be able to use fisheries officers and have rules enforced by officials on the water as a way to solve these problems. The key in the medium to long term is going to be to get agreements among people who are working together on the water and to have dialogue and collaboration take place at the community level. That's where I think the minister needs to lead this overall exercise in the immediate future.”
Minster Jordan, however, has shown no inclination to broker such an agreement and instead opted for the enforcement option when she announced on March 3, 2021 that she would not license any out-of-season First Nations’ moderate livelihood fishery in Atlantic Canada and indicated that she was stepping up patrols of DFO and Coast Guard vessels—completely bypassing the work of the committee, in which she apparently had little interest.
As Blaine Calkins, the CPC MP from Red Deer/Lacombe, stated early on, the committee had “no assurances at all that the Minister has any intention of actually coming to this committee and providing us with a sense of what the government wants or where the government needs to go.”
As he said, “I've been a member of this committee for the better part of 10 years…and I have never, ever, seen a study start off without at least the departmental officials, and I've never seen a minister unwilling to come to talk to the committee about these issues.”
Minister Jordan did eventually appear, on November 18, telling the committee that: “after 10 years of Harper Conservatives putting reconciliation on the back burner,” the Liberal government elected in 2015 “took action and expanded the mandate for moderate livelihood negotiations.” She pointed to the three Rights Reconciliation Agreements that were signed with East Coast First Nations in 2019 and 2020 as evidence of the success of the government’s efforts and insisted that she had “been working with First Nations to further implement their treaty right to fish in pursuit of a moderate livelihood.” She said that she had met and would continue to meet regularly with both indigenous leadership and commercial harvesters. “My department, this government, and I remain committed to working with First Nations leaders to implement their treaty rights.”
She pointed out that the government had recently appointed a federal special representative, Allister Surette “to foster dialogue and rebuild trust between indigenous and commercial harvesters...He will provide recommendations to the government on ways to move forward.”
(In late January, Allister Surette issued his interim report, highlighting poor communication and a lack of trust between both sides. He pointed to a “lack of clear direction from the Government of Canada and the multiple facets and complexity of implementing the right to fish in pursuit of a moderate livelihood," and noted that “perhaps the only thing the fishermen can agree on is blaming the Department of Fisheries and Oceans for the situation.”[11])
As for the nation-to-nation discussions with First Nations, and whether or not she supported one unified fishing season or not, Minister Jordan repeatedly stated that she could not speak to the details of ongoing discussions, but she believed there has been progress. She assured the committee, however, that “Conservation underpins everything we do. Lobster stocks are healthy and we will never move forward with a plan that threatens the health of this species or any other species.”
Asked what direction she had given to the DFO officers on how to enforce seasons for all fishers, Jordan replied that she did “not give direction to C and P [DFO’s Conservation and Protection] officers…They have a job to do. They do that job. I do not direct C and P. That would be like the Minister of Public Safety directing the RCMP. It just doesn't happen. They are officials of the law and they will uphold the law.” (Retired DFO officer Gary Hutchins directly contradicts this in his testimony on November 30, as noted above.)
In answer to the question whether the “current Reconciliation Agreements as offered from your government have missed the mark, because the mandate lacks any authority to make legal or regulatory changes to address the fundamental constitutional objective of addressing their section 35 rights?” Minister Jordan replied that: “Minister Bennett [Minister of Crown-Indigenous Relations and Northern Affairs Canada] and I have been in very close collaboration on this file. She has been very engaged on it since day one. We have had multiple meetings together with First Nations communities. CIRNAC officials sit at the negotiating table with us.”
However, she added later, one of the “biggest challenge of this is to determine what it is the First Nations want in terms of their moderate livelihood…it is different from community to community. That is one of the reasons we are continuing to have these ongoing discussions. Some do want the larger commercial access; others are looking for just a small-scale niche fishery… Some want a fishery that isn't commercial in scope. It's not the giant, million-dollar licences and boats. It's a small fishery for themselves, for their communities. It's not the same. That is one of the challenges we have, that everyone is different.”
The House of Commons Standing Committee on Fisheries and Oceans has met seven times since February 17, 2021 to consider its draft report and recommendations. The final report is expected to be sent to the House of Commons by the end of April/early May.
Article and photos by Marianne Scholte
[1]Brett Forester, DFO, RCMP knew violence was coming but did nothing to protect Mi’kmaw lobster harvesters: Documents, https://www.aptnnews.ca/national-news/dfo-rcmp-knew-violence-was-coming-but-did-nothing-to-protect-mikmaw-lobster-harvesters-documents/
[2] The Marshall Decision and Beyond: Implications for Management of the Atlantic Fisheries, Second Report of the Standing Committee on Fisheries and Oceans, https://www.ourcommons.ca/DocumentViewer/en/36-2/FOPO/report-2
[3] Aaron Beswick, Supreme Court out of date on moderate livelihood fishery: MP, https://www.thechronicleherald.ca/news/local/supreme-court-out-of-date-on-moderate-livelihood-fishery-mp-513580/
[4] Sarah King, Fishing in Contested Waters: Place & Community in Burnt Church/Esgenoopetitj, University of Toronto Press, Scholarly Publishing Division, 2013.
[5] Aaron Beswick, For 30 years Canadian courts have called for regulation of moderate livelihood fishery. Will this fisheries minister deliver? https://www.thechronicleherald.ca/news/local/for-30-years-canadian-courts-have-called-for-regulation-of-moderate-livelihood-fishery-will-this-fisheries-minister-deliver-525122/
[6] Paul Withers, Nova Scotia Mi'kmaq unified in opposition to moderate livelihood rules, https://www.cbc.ca/news/canada/nova-scotia/nova-scotia-mikmaq-opposition-moderate-livelihood-rules-1.5937465; Maureen Googoo, Sipekne’katik to resume lobster fishing under moderate livelihood June 1, http://kukukwes.com/2021/04/23/sipeknekatik-to-resume-lobster-fishing-under-moderate-livelihood-june-1/
[7] Supreme Court Judgement R. v. Sparrow, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do. See testimony of Naiomi Metallic, a law professor from Listuguj Mi'gmaq First Nation, who appeared before the committee on November 2, 2020 and of Chief Darlene Bernard of Lennox Island First Nation, who appeared on November 16, 2020.
[8] Supreme Court Judgment R. v. Marshall, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1740/index.do
[9] Paul Withers, Nova Scotia Mi'kmaq unified in opposition to moderate livelihood rules, https://www.cbc.ca/news/canada/nova-scotia/nova-scotia-mikmaq-opposition-moderate-livelihood-rules-1.5937465, Ardelle Reynolds, N.S. legal expert says Canadian government likely has not met constitutional obligations to First Nations, https://www.thestar.com/news/canada/2021/03/21/ns-legal-expert-says-canadian-government-likely-has-not-met-constitutional-obligations-to-first-nations.html
[10] https://www.cbc.ca/news/canada/nova-scotia/guang-da-international-sheng-ren-zheng-guilty-illegally-selling-lobster-1.5701123
[11] Paul Withers, “Peacemaker files bleak assessment of N.S. lobster tensions,” Jan 22, 2021 https://www.cbc.ca/news/canada/nova-scotia/report-indigenous-lobster-fishery-1.5884266
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