Course:FRST370/2022/Lobster Fishery Conflicts In Nova Scotia, Canada: Mi’kmaq Indigenous fishers, settler commercial fishers and the Department of Fisheries and Oceans Canada

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Abstract

Nova Scotia in red in relationship to Canada

This case study will focus on lobster fisheries operating off the coast of Nova Scotia, run by both Indigenous and non-Indigenous harvesters. Lobster harvesting is a vital part of the Nova Scotian economy with the industry generating $840 million for the area in 2013. Our study will have a specific focus on the implications of Mi’kmaq members in terms of their harvesting choices and their right to food sovereignty, following the 1999 Canadian Supreme Court, R v. Marshall, commonly referred to as "The Marshall decision". The aim of R v. Marshall was to clarify the legal rights of Indigenous harvesters, in terms of when and how much they can harvest. This paper will provide an analysis of how this controversial court decision has affected the economy, the stakeholders in the area, and conservation efforts, and has led to riots, vandalism, and acts of violence. Recommendations will be made in order to resolve future conflicts and help to promote more mutually beneficial systems for all parties involved. 

Keywords

Nova Scotia, Mi'kmaq, Lobster harvesting, Fisheries Policy, DFO

Introduction

Location

Our case study focuses on the Mi'kmaq community who inhabit the maritime province of Nova Scotia on the far East coast of Canada.

Timeline

Given the complexity and the number of events that have contributed to the issues faced today a timeline is the best way to explain the ongoing and complex situation.

  • 1500AD:  It is confirmed that at this point Mi’kmaq communities inhabited the Atlantic region including Nova Scotia. While there was little opportunity for a growing season, the Mi’kmaq were able to sustain themselves thanks to a reliable source of marine life.[1]
  • 1500s - 1600s: Europeans began arriving, they were mostly fishermen who stayed between March and October/November. These fishermen brought with them new viruses and even with their limited contact with Indigenous people these viruses cut their population by at least 50% over just two generations.[1]
  • 1722: War breaks out between New England fishermen and the Mi'kmaq, Maliseet, and Abenaki communities. This war was a result of the northern expansion of fishermen and occupying more of the northern coastal waters than before.[1]
  • 1726: A treaty was signed by the Mi'kmaq, Maliseet, and Passamaquoddy with the British. This treaty was designed to establish general laws concerning the inter-relationship between the British and the Indigenous inhabitants. Additionally, both groups agreed to respect the legality of all existing settlements, and future settlements would only be a result of negotiations and done lawfully, (“lawfully”  was not defined).[1]
  • 1725-1779: Peace and Friendship Treaty: These were numerous treaties signed by the Mi'kmaq (among others), and were designed to promote trade among Indigenous groups with the British and to prevent any conflicts or wars. These treaties also established the rights of Indigenous communities to harvest and use the lands and water in order to have a reasonable living with the interference of the British.[2] The treaty stated “[they] shall not be hindered from hindered from, but have free liberty of hunting and fishing as usual (Article 4)”[3].
  • 1982: Section 35 (1) of the Constitution Act: Recognized and affirmed the language in existing treaties with the Aboriginal peoples of Canada which include the Indian, Inuit, and Metis peoples[3]. “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”[3]. However at the time of writing the definition of this statement had not been defined and was therefore up to interpretation. [4]
  • 1985: Simon Case (Supreme Court of Canada): A registered Mi’kmaq member, Simon was caught hunting with shotgun cartridges larger than allowed under the Nova Scotia Lands and Forest Acts. Simon's case was brought before the Supreme Court of Canada and the 1985 Supreme Court decision found that Simon was allowed to possess these cartridges under article 4 of the 1752 treaty which stated they [Indigenous members] have “free liberty of Fishing and Hunting as usual” and therefore did not have to abide by all regulations concerning hunting and fishing.[5]
  • 1990: Sparrow Decision (Supreme Court of Canada): While this case does not directly involve the Mi'kmaq community the precedent that was set impacts all Indigenous groups across Canada. The Musqueam people have inhabited the Fraser delta of Southwest British Columbia since time immemorial, depending on the waterways to provide a livelihood for themselves. Following European colonization there has been an increase in their aboriginal rights being infringed as non-Indigenous members took control of the fishing industry. The Musqueam have been restricted to fishing strictly for personal consumption and therefore can not make any economic gains from their catch. Ronald Sparrow was arrested in 1984, for fishing with an "illegal" net given the fishing license he held. After being found guilty by both the the BC Provincial Court and the BC County Court, Sparrow appealed to the BC Court of Appeals and won. Six years since his arrest his case made it before the Supreme Court of Canada which ruled in favor of him in 1990. The court ruled that "despite nearly a century of governmental regulations and restrictions on Musqueam’s right to fish, their Aboriginal right to fish had not been extinguished." (Sparrow Case, 2020). This ruling was the first time the Supreme Court had to interpret the statement: “existing Aboriginal and treaty rights are hereby recognized and affirmed” and means established treaty rights must never be infringed upon without justification. [4]
  • 1999: Marshall Decision I (Supreme Court of Canada): In 1993, Donald Marshall Jr. a Mi'kmaq member residing in Nova Scotia was arrested and charged under the fisheries act for 3 charges. "1) the selling of eels without a license, 2) fishing without a license, and 3) fishing during the closed season with illegal nets" (UNSM, 2022) [6]. Marshall was found guilty on all 3 charges, although his defense originated from 1760 and 1761 treaties which he believed exempted him from modern fishing regulations. Following a similar legal process, but in Nova Scotia, Marshall's case eventually ends up in front of the Supreme Court of Canada. In September 1999 the Supreme Court of Canada heard his case and Marshall was acquitted of all charges. This case introduced the term “moderate livelihood”. This term has allowed the Mi’kmaq to not just harvest but to sell their catch in order to support a moderate livelihood outside of the modern day fishing regulations.[7]. The limitation being that this does NOT open up the waters for Indigenous members to pursue unlimited economic gains.
  • 1999: Marshall Decision II (Supreme Court of Canada): Upon months of violence and un-provoked attacks by non-Indigenous harvesters which led to the destruction of $210,000 in traps the Supreme Court issued a clarification. This clarification read: "The federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds."[6]. This allows the government to step in and infringe on treaty rights if there was a conservations concern "or other grounds" which might mean the government stepping in a case of serious public importance.
  • 2000-2007: The Marshall Response Initiative. The MRI was created through the Canadian government in order to be support Indigenous fishing communities of the Maritime provinces and provide them with the resources needed to have a moderate livelihood through harvesting. “Through the MRI, and an investment of $354 million between 2000 and 2007, commercial fishing licenses, fishing vessels, and gear, and training were provided to 32 of the 34 eligible First Nations through signed Fisheries Agreements” (Canada, 2020).[7]
  • 2020: Sipekne’katik (the second largest Mi’kmaq band in Nova Scotia) begin a commercial lobster fishery operating out of Saulnierville Wharf while the fishing season was closed under federal law. This led to violence, vandalism, harassment, and intimidation. [8] Within the week the Sipekne'katik were accused on operating an illegal operation, and began having their equipment destroyed, and were harassed by non-Indigenous fishermen. In truth this was not an illegal operations and their rights to operate were protected under Aboriginal and Treaty rights given Section 35 (1) of the Constitution Act.[8]
  • Present: As of writing there are still high levels on animosity among Mi'kmaq members with non-Indigenous community members. The Canadian government is moving in the right direction, and the situation is slowly improving. Even 23 years following the Marshall Decision a legally recognized definition has not been created for "moderate livelihood". This lack of a definition along with little public awareness of Indigenous rights is the root of many issues still arising.

Description

Description of the case study – Where located; history; national or regional context (as appropriate)

Tenure Rights and Administrative Arrangements

Peace and Friendship treaties 1752 and Halifax treaties 1760-1761

Peace And Friendship Treaties of Nova Scotia 1752

The Halifax Treaties (1760-1761) and the Peace and Friendship Treaties (1752), emphasized the importance of the Mi’kmaq right to fish as well as their right to exchange and sell their catch.

  • “[they] shall not be hindered from hindered from, but have free liberty of hunting and fishing as usual (Article 4)”[3].
  • “if they [the Mi'kmaq beneficiaries] shall think a Truck house needful at the River Chibenaccadie [Shubenacadie River], or any other place of their resort they shall have the same built and proper Merchandize, lodged therein to be exchanged for what the Indians shall have to dispose of and that in the meantime the Indians shall have free liberty to bring for Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have the liberty to dispose thereof to the best advantage[3].

Section 35 (1) of the Constitution Act, 1982

Recognized and affirmed the language in existing treaties with the Aboriginal peoples of Canada which include the Indian, Inuit, and Metis peoples[3].

“The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”[3]

Marshall Decisions 1 and 2

In 1999, the Supreme Court ruled that Donald Marshall, a Mi’kmaq fisher, could fish for a “moderate livelihood” at any time[9]. Marshall Decision 1 as it is known introduced the term “moderate livelihood”. This term has allowed the Mi’kmaq to not just harvest but to sell their catch in order to support a moderate livelihood[7]. Unfortunately at the time, the Supreme Court did not define “moderate livelihood” nor did it provide any guidance on the types of fish it covered or whether the catch could be sold for subsistence purposes[9].

A subsequent ruling, Marshall Decision 2, clarifies for the commercial fishing industry that fishing regulations can be placed on Indigenous members on the basis of conservation or for the public good[7].  

Burnt Church agreement in principle

This agreement clarified the Marshall decision through agreements with the DFO and Chief of Burnt Church. So that the Esgenoôpetitj Mi’kmaq can only fish for ceremonial and personal consumption only and cannot sell their catch[10]. The fishery is co-managed between the DFO and the Burnt Church First Nation to make sure that conservation and harvest levels are met[11].

Affected Rights Holders, Interested Stakeholders, and Power Analysis

Affected Rightsholders

Mi'kmaq Flag to represent the Mi'kmaq rightsholders

Sipekne’katik Band in Nova Scotia

Rights:

The Sipekne’katik band, in recognition of the 21st anniversary of the 1999 Marshall decision, set up their own self-regulated fishery before the official start of the lobster fishing season. They also distributed their own licenses. This was to test the Marshall and other subsequent rulings to affirm their treaty rights to catch and sell fish. 

Power Analysis:

While the band has the treaty right to a moderate livelihood, they have very little influence. They continue to have to test their treaty rights so that they are recognized by the provincial and federal governments as well as other commercial industries.

Mi’kmaq Communities in Nova Scotia and New Brunswick

Rights:

Mi’kmaq communities in the surrounding areas should also be considered affected rights holders as they have the same treaty rights as the Sipekne’katik band.  Their traditional way of life has been lost and they have limited economic access to the natural resources in their communities. They keep having to fight governments and other commercial industries at all levels for their treaty rights of earning a moderate living off of the land[9].

Power Analysis:

These communities have rights under the negotiated treaties but again have very little influence.  Like the Sipekne’katik, a representative band, they have to continue to fight to get their rights recognized. Their treaty rights grant them the opportunity to provide a living and put food on their tables.  In this situation, while the treaty rights are important, they have very little influence at this time as to how they are recognized by the governments (provincial and federal) as well as by other fishermen.

Interested Stakeholders

Canadian flag to represent RCMP, DFO, the Canadian government, and non-Indigenous fishermen.

Department of Fisheries and Oceans (DFO)

Perspective:

The Department of Fisheries and Oceans (DFO) is the representative branch of the Canadian government that oversees fisheries management across Canada and takes responsibility for the conservation of marine protected areas. In addition to assigning licenses and quotas for the various fisheries including lobster, they were also responsible for enforcing fisheries regulations.   DFO officers would have been responsible to survey the Indigenous lobster fishery, seizing Indigenous traps, and with the help of the RCMP carrying out other fisheries-related enforcement activities on the water[12].

Power Analysis:

As the representative of the government of Canada, DFO has the final say in how the fisheries are managed. While they need to consider the treaty rights, they can work with the federal government to set standards to protect the fisheries. 

Government of Canada (Supreme Court)

Perspective:

The Supreme Court of Canada, as part of the Government of Canada, rules on treaty rights. While they have ruled favorably, the Government of Canada is slow to implement the recommendations or to clarify language in the rulings.

Power Analysis:

The Supreme Court is responsible for interpreting treaty language so have a high degree of influence. They wait until there is a legal case rather than acting proactively in ensuring treaty rights are respected.

Royal Canadian Mounted Police (RCMP)

RCMP is contracted out for law enforcement in rural Nova Scotia.[13]
Perspective:

The Royal Canadian Mounted Police (RCMP) are contracted to provide policing services in rural fishing communities in Nova Scotia. During the 2020 lobster fishery dispute, they were charged with law enforcement which included surveillance, monitoring of protestors, policing of barricades, negotiating, and participating in any enforcement activities on the water.  

Power Analysis:

The RCMP have a high influence as they have to enforce the rules and regulations.  They often have to do so under pressure without the full knowledge of how a court has ruled on treaty rights and hold ultimate power because they enforce the regulations and common law and still see themselves as caretakers of Indigenous peoples.

Non-Indigenous Fishermen and Commercial Fisheries

Perspective:

Non-Indigenous fishermen tend to be settlers who have purchased fishery licenses for generations in the same area. They opposed the Mi’kmaq fishery as they viewed this as negatively impacting their livelihood. They have little to no understanding of Mi’kmaq rights and how these rights might impact their access to the fisheries.

Power Analysis:

Non-Indigenous fishermen to their way of thinking, have to purchase fishing licenses and operate within DFO rules. They have a lack of understanding of Indigenous treaty rights as they relate to fishing and Indigenous fisheries.  They also have economic influence and are a vocal majority who can influence media and government as their commercial enterprises may drive the economy in the region.

Discussion

An in-depth understanding of all stakeholders at play in this situation is vital as it is a rather complex situation that has developed over multiple generations and stems back to the “Peace and Friendship treaties” 1752 and “Halifax treaties” of 1760-1761 and varying/conflicting government policy since then. Issues resulting from the 1999 Marshall Decision through the introduction of the term “moderate livelihood” coupled with both political issues, limited economic access, and the lack of understanding of treaty rights directly led to the conflicts in 2020 as a boiling point had been reached.

Understanding Mi’kmaq Rights

Mi’kmaq simply just want to practice their constitutional rights that have been granted to them from the supreme court[3], in which they can harvest a “sustainable livelihood”.  This is more than valid, and Mi'kmaq are an Aboriginal nation possessing the right of self-government. As such, they have the right to regulate the fishing activities of its members. Co-management of the fisheries resource is a realistic goal between the Mi'kmaq and Government. Mi'kmaq have the sufficient powers of self-government to uphold their side of any management[3], undoubtedly the same goes for DFO.

Understanding Non-Indigenous Fisheries

In 2000 High prices in lobsters as well as high catch rates led fishermen to pursue lobster fishing rights[14], by this time many retiring fishermen would essentially do a trade-off with a processing facility / corporation who they sold to in the past, in which a license was provided for a cost. The corporation would then have operating agreements with Incoming fishermen and would often own the boat and gear and “Sub-contract” the license back to the new coming fisherman. This in turn led to a vast control of licenses by corporations with one owning nearly 30 lobster licenses [14]. This allowed them to circumvent consolidation rules in the quota fisheries that limit the amount of quota an individual can own. Controlling agreements have allowed processing firms to match supply to demand. But fishermen's organizations raised alarm about such practices and their effects on employment and income levels for captains and crew, as well as prices for licenses and the status of lobster stocks [14]. Fishermen and fishing communities have experienced social ills due to this, coupled with DFO’s implementation of laws that fail to recognize customary rules within communities and implement overreaching broad policy which “have different origins, reflect different principles, and are motivated by different objectives” [15] has caused much anger between government and non-indigenous fishermen.

Lack of Consultation Regarding Fisheries Policy In Nova Scotia

The Canadian government’s failure to recognize the customary rights of harvesters to organize has weakened feedback between the operational level, this disconnect has caused governance mismatches[15]. This has led harvesters and fishermen to believe that the decision-making process is out of their control and is detrimental to their livelihoods. Thus, harvesters resist regulatory change. 97.6% of Nova Scotia harvesters believed that the DFO should consult with them[15]. This disconnect has also caused tensions in the past, for example in May 1983, when about 100 harvesters burned and sank 2 DFO patrol vessels due to fisheries tensions, then again in 1990 fisherman responded to the ITQ program which concentrated fishing rights into fewer hands by occupying DFO offices and national monuments and blockading a foreign fishing vessel[14]. The poor relationship between the DFO and resource users in Nova Scotia has weakened system feedback where rules that influence fishing behavior are to promote fishing activities that fit with current social, economic, and ecological conditions. These prior conflicts that have occurred in the past cannot be overlooked when understanding the roots of the more current unrest between Mi'kmaq and non-indigenous fisherman, in that it actually stems from decades of prior government policy disconnects.

Critical Issues

Discussion of critical issues or conflicts in this community and how they are being managed

Assessment

The controversial court decision that has administered the term “moderate livelihood” has had profound impacts in Nova Scotian communities both economically, politically, as well as heightened confusion of the future of the Nova Scotia lobster fishery.  The traditional way of life for many Mi'kmaq has been lost and they have had limited economic access to the natural resources in their communities. Respecting these traditional rights to harvest is vitally important moving forward from both a traditional standpoint as well as economic for the Mi’kmaq. This is not a one-sided argument either, major lags and lack of communication in policy development from the government is also of great concern.  Many local non-indigenous communities have relied upon this resource for generations as well since 1760. With the development of ITQ programs concentrated fishing rights into fewer hands[14]. Fishermen in Nova Scotia reacted with civil disobedience in 1990, occupying DFO offices and national monuments, and blockading a foreign fishing vessel. Tensions regarding fisheries in Nova Scotia have had friction and backlash in the past and this can be attributed to lack of consultation by the government, the same issues still persist today.

An attainable goal for the future should be in which mediated consultation between majority stakeholders consisting of: government policymakers, indigenous communities as well as non-Indigenous communities who all have economic, traditional and livelihoods dependent upon the lobster fishery. In this setting parties would be able to voice their concerns and work together to develop meaningful, equitable, and sustainable policy that allows the Mi'kmaq to pursue their traditional rights while also not leaving non-Indigenous fishermen in the dark.[16] Active dialogue prior to, during, and post fishing season should be developed between all interested members in order to de-escalate tensions that still persist within Nova Scotian communities[15] and ensure traditional rights can be upheld while also coming up with both balanced short and long term plans regarding fisheries policy[16]

In conclusion, governance is composed of competing agendas, strategies, techniques, and tactics, which have unexpected outcomes, understanding of how there is a significant difference between licensing and traditional rights should be considered by all looking at this current situation. Local fishermen who are upset at current circumstances regarding, corporations and government policy have been forced into a capitalist bottleneck[14] that has affected their livelihoods. This has caused rising tensions for the last 30 years. The closed season in 2020 led to a boiling point between the government and fishermen with the Mi'kmaq being caught in the middle while practicing their traditional rights. In the future, it is hoped that the government, non-indigenous fishermen, and the Mi'kmaq can have formal meetings where all voices, concerns and conflicting policies can be balanced while also respecting the traditional rights of local Mi'kmaq.

Recommendations

  • It is clear that the major problem involving this case study is a result of the lack of a clear definition of “moderate livelihood”.
  • A legal definition must be created and can be based on numerous factors such as the total weight of marine life caught, quantity per species, or a dollar value assigned to the catch.
  • This legal definition needs to be created with direct involvement from the Mi’kmaq communities as the outcome of the definition will personally affect them.
  • Education initiatives need to be created and supported in order for the non-indigenous community to better understand how Mi’kmaq fisheries will affect them and help to dispel misinformation.
  • An active dialogue committee between Mi’kmaq, Government policymakers, and non-Indigenous fishermen is strongly recommended.

References

  1. ↑ 1.0 1.1 1.2 1.3 "Fact sheet on Peace and Friendship Treaties in the Maritimes and Gaspé". Government of Canada. 0-15-2010. Retrieved 11-26-2022. Check date values in: |access-date=, |date= (help)
  2. ↑ Isabel Wallace, Sarah (05-30-2018). "Peace and Friendship Treaties". The Canadian Encylopedia. Retrieved 12-04-2022. Check date values in: |access-date=, |date= (help)
  3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 Wildsmith, Bruce. "The Mi'kmaq and the Fisher The Mi'kmaq and the Fishery: Beyond Food Requirements". Dalhousie Law Journal. 18: 116–140 – via Digital Commons.
  4. ↑ 4.0 4.1 Hanson; et al. (2020). "Sparrow Case". Indigenous Foundations. Retrieved 12/09/2022. Explicit use of et al. in: |last= (help); Check date values in: |access-date= (help)
  5. ↑ "Supreme Court Judgements, Simon v The Queen". Supreme Court of Canada. 11-30-2022. Retrieved 11-26-2022. Check date values in: |access-date=, |date= (help)
  6. ↑ 6.0 6.1 "The Marshall Decision". Union of Nova Scotia Mi'kmaq. 12-04-2022. Retrieved 12-04-2022. Check date values in: |access-date=, |date= (help)
  7. ↑ 7.0 7.1 7.2 7.3 "Study on the Implementation of Mi'kmaq Treaty Fishing Rights to Support a Moderate Livelihood". Department of Fisheries and Oceans Canada. 11-18-2020. Retrieved 11-26-2022. Check date values in: |access-date=, |date= (help)
  8. ↑ 8.0 8.1 Angela, D'Elia Decembrini (10-9-2020). "The Marshall Decision and Mi;kmaq Commerical Fishing Rights: An Explainer". First Peoples Law. Retrieved 11-26-2022. Check date values in: |access-date=, |date= (help)
  9. ↑ 9.0 9.1 9.2 Oliveira, Fredrico (2021). [. https://doi.org/10.1590/1809-43412021v18a706 "Indigenous legal resurgence as a path to reconciliation: Three Case Studies"] Check |url= value (help). Vibrant: Virtual Brazilian Anthropology. 18: 1–11 – via SciELO.
  10. ↑ Obomsawin, A. (Director). (2002). Is the Crown at war with us?[Film]. National Film Board. https://www.nfb.ca/film/is_the_crown_at_war_with_us/
  11. ↑ Michael, W. (30/11/2022). "Esgenoopetitj First Nation" (PDF). Atlantic Policy Congress of First Nations Chiefs Secretariat. Check date values in: |date= (help)
  12. ↑ King, Sarah (2022). Fishing in Contested Waters. Canada: University of Toronto Press. pp. 142–161. ISBN 9781442689930.
  13. ↑ "About the RCMP in Nova Scotia". Royal Canadian Mounted Police. 30/11/2022. Check date values in: |date= (help)
  14. ↑ 14.0 14.1 14.2 14.3 14.4 14.5 Barnett, Allian (June 2017). "Enacting and contesting neoliberalism in fisheries: The tragedy of commodifying lobster access rights in Southwest Nova Scotia". Science Direct. 80: 9.
  15. ↑ 15.0 15.1 15.2 15.3 Barnett, Allain (December 2014). "Weak feedbacks, governance mismatches, and the robustness of social-ecological systems: an analysis of the Southwest Nova Scotia lobster fishery with comparison to Maine". Ecology and Society. 19 No. 4: 14 – via JSTOR.
  16. ↑ 16.0 16.1 Wilner, Kate (30 Mar 2012). "Transformative learning for better resource management: the role of critical reflection". Environmental Planning and management. Vol. 55 Issue 10: 16.


Theme: Indigenous Rights
Country: Canada
Province/Prefecture: Nova Scotia

This conservation resource was created by James Vincett, Aidan Perkins, Quinn Kenny.
It is shared under a CC-BY 4.0.
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