Mi'kmaq tackle decades-old standstill on fishing rights with historic, self-regulated lobster fishery

After decades of differing opinions with government officialson First Nations' right to earn a "moderate livelihood" while fishing, a Mi'kmaw community in Nova Scotia has launched its own Mi'kmaq-regulated, rights-based lobster fishery.

It's said to be the first of its kind in the province.

Hundreds of Mi'kmaq from across the province gathered on the federal wharf in Saulnierville, N.S., on Thursday, to celebrate the launch by Sipekne'katik First Nation.

The ceremony, which included the distribution of licences and lobster trap tags to sevenMi'kmaw harvesters from Sipekne'katik, took place exactly 21 years after alandmark Supreme Court ruling in the case of Donald Marshall Jr.

On Sept. 17, 1999, the court ruled that Marshall, charged with fishing eels outside of the Department of Fisheries and Oceans [DFO] regulated season, was justified in doing so under the 1760s Peace and Friendship Treaties.

"[It's] 21 years since the Marshall decision, so there's a lot of emotion," said Mi'kmaw harvester Robert Syliboy, who received one of the new licences.

"Our band is behind us, everyone's behind us, and we're not taking nofor an answer. The government's got to come to the table. It's been long enough. We've waited long enough."

Following the 1999 Marshall ruling, Mi'kmaw harvesters across the Atlantic region, who'd begun fishing lobster outside of DFO regulations, were met with fierce opposition. Violence between Mi'kmawand non-Indigenous fishers erupted on the waters in New Brunswick and Quebec in the weeks following the decision.

Opposition from non-Indigenous fishers ultimately led to a rare clarification on the case, known as Marshall 2. In it, the court clarified that the federal government, through DFO, could still regulate Mi'kmaw harvesting for the purposes of conservation,if it consulted with the First Nationand could justify the regulations.

Twenty-one years later, that same opposition revealed itself a few kilometres offshore from the Saulnierville wharf, where up to 50 lobster fishing boats from numerous non-Indigenous fishing communities circled the first Mi'kmaw boats to push off and drop thetraps.

"It was just straight intimidation," saidSyliboy. "They were sailing in close and saying, 'We're going to cut your buoys,' right after we set [the traps]."

The tensions continued until later that evening, when a video posted to social mediasurfaced, showing emergency flares narrowly missing a Mi'kmaw boat fleeing up to a dozen fishing vessels near Saulnierville.

According to Sipekne'katik officials, the band has been unable to find common groundin recent discussions with DFOon the definition of "moderate livelihood." As a result, the community'sfisherywill allow Mi'kmaqto harvest andsell theircatch, under regulations enforced by Mi'kmaw compliance officers.

The plan alsoincludes licencesfor non-Mi'kmawlobsterconsumers that state their purchaseis legal, as per thePeace and Friendship Treaties.

In an email statement Friday,DFO Minister Bernadette Jordan extended an invitation to "Indigenous leadership and industry leadership," to meet with her and find a"peaceful resolution on the water."

"The issues surrounding this fishery are longstanding, complexand deeply personal to all involved," she said."The goal is, and always has been, to further implement First Nations' rights and have everyone participate in a constructive and productive fishery."

'Modern rights, historic treaties'

DFO's lack of definitionon theMi'kmaw right to fishwas a problem from the beginning, saidMelanie Wiber, an anthropologistrecently retiredfromthe University of New Brunswick. Herresearch expertise includes how cultural, religious or spirituallaws intersect withthe laws of states or other nations.

"This is one of thethings about [Indigenous]experiences after colonization," Wibersaid of the recent developments in N.S.

"Much of their behaviour was created as illegal behaviour under state law."

In 2007, Wiberco-authored a report titled "After Marshall: Implementation Of Aboriginal Fishing Rights In AtlanticCanada," with Chis Milley, an adjunct professor at Dalhousie University in Halifax.

Their reportexaminedhow the federal government responded to the first and second Marshall decisionsin the early 2000s, and howMi'kmawfishing practices "were disregarded" underDFO'sregulations and conservation mandate, she said.

Wiber said the government's approachwas likelyinfluencedby the collapse of codfish stocks in the mid-1990s, and alsoan attempt to avoid further violence amongthe fishing communities.

At thetime, DFO operated under the beliefthatthere wouldbe enough fish to addmore Mi'kmaw harvesters to the fishery, without restricting the existing fishing communities, she said.

"Thefederal government began from the position that they could not possibly increase fishing effort on the East Coast," she said.

"They had to somehow integrate Indigenous fishing rights into the existing [fishing] effort, which meant taking some effort out somehow. How are they going to do that?"

In 2000, followingmonths of discussions and negotiationson how to share the resource, DFObegan redistributing existing lobster licences and signed agreements toestablisheconomic development, trainingand lending programs in Mi'kmaw communities.

"I think [it]wasan attempt to ...create modern rights based on historic treaties," Wiber said.

"I don't believe it was the only option, but it fit within the sort of paranoid framework of a government that'dalready created one crisis in the fisheries, through bad fisheries management."

Sipekne'katik's moderate livelihood fishery is the first of what could become multiple Mi'kmaw-regulated fisheries launched in the province. Potlotek First Nation is scheduled to launch their own onOct.1, according to the community's chief.

"We're doing the same thing," Wilbert Marshall. said."We'llfollow a community plan, which we've been talking about it for the last two or three months now ... 21 years is long enough."

Marshall said Potlotek's operation will be similar to Sipekne'katik's, witha licence and up to 70 tags issued to their harvesters and saidDFO was notified of its plan.

"We let them know what's up,but we didn't have to," he said.