Why doesn’t the “Rule of Law” protect the Sipekne’katik First Nation?

We cannot have reconciliation until the extinguishment policy is off the table and our Aboriginal title and treaty rights are recognized, affirmed and implemented by Canada and the provinces. Not only in the Constitution but also on the ground. 1

Arthur Manuel. “Unsettling Canada: A National Wake-up Call.”

On the one hand, you have violent non-Indigenous fishermen committing acts of violence and aggression towards non-violent Sipekne’katik First Nations fishermen exercising their constitutional treaty rights while the RCMP did nothing to protect them or their property. On the other hand, just eight months earlier peaceful Indigenous citizens in Wet’suwet’en territory protesting against the construction of the Coastal GasLink pipeline across their un-ceded territory in British Columbia were attacked and arrested by the RCMP in full riot gear and armed with assault rifles. 28 “peaceful” protesters were arrested plus multiple more at other “peaceful” protest sites across the country.

At the time, Prime Minister Trudeau declared that “the rule of law” must and will prevail. He obviously wasn’t thinking of Anuk Nu’at’en (Wet’suwet’en law) – 1000s of years old – but the laws of Canada – 153 years old – and founded on colonial legal frameworks and genocidal policies implemented throughout the America’s to ensure that the Indigenous populations would not get in the way of “progress”. Eight months later, the government of Canada continues to ignore its own 1999 Supreme Court Marshall decision establishing the constitutional right of the Mi’kmaq to earn a “moderate living” from fishing. After 21 years of waiting for the federal government to define “moderate living”, the Sipekne’katik First Nation launched their own “moderate living” fishery. The result – racist threats and acts of violent, physical aggression against Indigenous fishermen and physical damage to Indigenous property by non-Indigenous fishermen. All under the watch of the RCMP who did nothing!

What happened to the “rule of law”, Mr. Prime Minister?

The Supreme Court Marshall ruling affirmed that the 1760 and 1761 Peace and Friendship Treaties with the British – 260 years ago – and Section 35 of the 1982 Constitution Act gave the Mi’kmaq, Maliseet, and Peskotomuhkati people, a total of 34 First Nations in the Maritime provinces and the Gaspé region of Quebec, the right to hunt, fish and gather in pursuit of a “moderate livelihood” from the resources of the land and waters. A subsequent Supreme Court clarification, known as Marshall II, stated that conservation-based regulations would still apply².

And of all the Lobster Fishing Areas (LFAs) in the Maritimes Region, indeed of all the LFAs in eastern Canada and perhaps the world, none is more productive than LFA 34. In 2018-2019, the landed value of lobsters in just that one area exceeded $404 million — almost half the value of all the inshore LFAs combined. “Lobster Fishery at the Crossroads Part 3”³

The non-Indigenous fishermen and fishermen unions in Nova Scotia state that their two primary objections to the Mi’kmaq “moderate living” lobster fishery are:

• the impact on their ability to earn a living and
• the conservation of the lobster stocks

The Indigenous commercial fishing catch is already less than 5% of the total lobster catch in the LFA 34 Lobster Fishery⁴ – the catchment area for the impacted lobster fishing zone. Will a “Moderate Living” fishing quota erode a non-Indigenous commercial fisherman’s livelihood? For each Indigenous “moderate living” license with 50 lobster traps, a non-Indigenous commercial fisherman has up to 400 traps. Membertou First Nation Chief Terrance Paul, the co-chair of the Assembly of Nova Scotia Mi’kmaq Chiefs and responsible for the fisheries, mining and finance portfolios with the Mi’kmaq Rights Initiative in an interview with the Halifax Examiner, said that with the number of traps the First Nations are putting in the water, they would “have difficulty reaching 1%” of the non-Indigenous fishery⁵. 

Today, lobster is Canada’s most valuable fishery. In 2019, the value of Canada’s lobster exports was nearly $2.6 billion. According to DFO commercial landings data, in 2016, it was worth $1.3 billion at the wharf and contributed 44% of the total commercial value of all fisheries in Atlantic Canada.³ 

As far as conservation, in August 2020, the Assembly of Nova Scotia Mi’kmaw Chiefs said its members were part of the “Made-in-Nova Scotia Process” discussions on fish, and that their work was based on “the long-held Mi’kmaw philosophy of netukulimk,” defined as ‘the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community by achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity, or productivity of the ‘natural bounty.’” ⁵

St. Mary’s Bay where the Sipekne’katik Moderate Living Fishery is located is the Kespukwitk district of Mi’kma’ki (the traditional territory of the L’nuk, the traditional name of the Mi’kmaq in Atlantic Canada).  “The L’nuk legal orders or principles, called Lnuwey Tplutaqan, provide authority for the L’nuk to enact laws, rules, and regulations, in a manner similar to how the Government of Canada can enact laws under the authority granted to it by the Canadian Constitution Act of 1982⁶. “Conservation is the foundation of Netukulimk; accordingly, Sipekne’katik responsibly issued only five licenses, and limited each L’nuk fisher to the use of only 50 traps, in LFA 34. In contrast, there are nearly 1,000 non-native licenses, with each fisher permitted up to 400 traps – in the same area”⁷. Who is being more responsible: Sipekne’katik fishermen or non-Indigenous commercial fishermen?

Megan Bailey, an associate professor and Canada Research Chair in integrated ocean and coastal governance at Dalhousie University in Halifax who studies fisheries management, says the Mi’kmaw fishery in southwest Nova Scotia won’t harm lobster stocks — as commercial fishermen have argued — given its small scale. As further evidence supporting the Mi’kmaq position, “the Department of Fisheries said lobster stocks across the Maritimes remain healthy. The 2015-2016 season saw record catches for both LFAs 33 and 34. The drop in catch for LFA 34 in the 2018-2019 season, while notable, does not raise into question the health of lobster stocks,” Benoit Mayrand wrote in an email to CBC News, adding that the recent data is still preliminary and subject to change”.⁸

So what is the Department of Fisheries and Oceans challenge in defining what a “Moderate Living” Fishery is? Maybe because they are not interested?

Earlier in 2020, the federal government offered $87M to the Assembly of Nova Scotia Mi’kmaw Chiefs (ANSMC) to refrain from exercising their “treaty right to earn a moderate livelihood” from the lobster fishery for a period of 10 years. The money was “to go towards boats, gear, training as support for participating in the existing commercial fishery”.⁹ This offer was rejected by the ANSMC who have drafted their own overarching governance expectations for the Mi’kmaq Netukulimk livelihood fishery. These expectations are called the Statement of Interim Principles of the Netukulimk Livelihood Fishery outlining 17 “draft” principles including¹⁰:

• Principle 1: Each Mi’kmaw community in Nova Scotia must have its own Netukulimk Livelihood Fishery plan
• Principle 2: Netukulimk Livelihood Fishery plans must be consistent with the Mi’kmaq principle of Netukulimk
• Principle 3: Netukulimk Livelihood Fishery plans will emphasize resource conservation, environmental standards and safety
• Principle 10: Each Mi’kmaw community in Nova Scotia shall administer a system to ensure compliance by the harvesters registered under their community Netukulimk Livelihood Fishery plan
• Principle 11: All Netukulimk Livelihood Fishery Harvesters must comply with any plan conditions in relation to species, locations and any other conditions as specified
• Principle 13: Netukulimk Livelihood Fishery Harvesters must report their catch in accordance with all conditions of registration of their community plan
• Principle 14: Harvesting under the Netukulimk Livelihood Fishery Plan is to be monitored to ensure the safety of the harvesters and to ensure the integrity, diversity and productivity of their fish and their environment is preserved
• Principle 16: Food, social, ceremonial; Commercial; Communal-commercial and Netukulimk Livelihood Fishery are distinct and separate with their own rules and regulations

Eight of the seventeen principles are directly or indirectly related to conservation and preservation of the “natural bounty” with strict governance and reporting protocols. As noted in a previous Indigenous Watchdog post “Can Indigenous Leadership Help Save the Environment?”, a study led by UBC in July 2019 examining land management practices in Australia, Brazil and Canada concluded that Indigenous managed lands in all three countries had the highest species richness in all focal taxonomy groups and had the highest threatened species richness. Elder Albert Marshall of the Mi’kmaw Nation, at the Central Regional Gathering, June 2017 referred to Etuaptmumk: Two-eyed seeing refers to learning to see from one eye with the strengths of Indigenous knowledges and ways of knowing, and from the other eye with the strengths of western knowledges and ways of knowing—and learning to use both of these eyes together for the benefit of all.”

Perhaps, Indigenous laws and legal traditions – like Lnuwey Tplutaqan – as called for in Call to Action # 42¹¹ (Not Started as of Oct. 22, 2020) would help to resolve this long festering problem that desperately needs a solution. As far as the violence committed against the Sipekne’katik First Nation fishermen, they need the protection of the local RCMP. Not an armed, militarized force. But one that takes “the rule of law” seriously. Just like the Prime Minister.

Notes:

1. “Unsettling Canada: A National Wake-up Call”. Arthur Manuel and Grand Chief Ronald M. Derrickson. Between the Lines. Toronto. 2015
2. “Factsheet: The 1999 Supreme Court of Canada Marshall Decision” Fisheries and Oceans Canada.
3. Halifax Examiner. “Lobster Fishery at a Crossroads. Part 3: What are the prospects for the Atlantic Lobster Fishery? Oct. 10, 20220
4. “Livelihood or profit? Why an old fight over Indigenous fishing rights is heating up again in Nova Scotia”. CBC. Sept. 23, 2020
5. Halifax Examiner. “Lobster Fishery at a Crossroads. “Part 2: Tensions Over a Moderate Livelihood Fishery are hiding a much bigger threat to the inshore“. Oct. 7, 2020. See also Part 3 above and “Part 1:It’s been 20 years since the Marshall decision, so why is there still no moderate Livelihood Fishery” Oct. 5, 2020 as well as “Trapped in conflict: how the corporate megafishery Clearwater has set the stage for violent conflict in mi’kma’ki” Council of Canadians. Oct. 15, 2020 for an excellent discussion on how Clearwater Seafoods impacts the Atlantic Fishery
6. “INDIGENOUS RIGHTS: Conservation important but who gets to regulate is key legal issue“. The Guardian. A SaltWire Network Publication. Sept. 25, 2020
7. “Fishing under Netukulimk“. Nova Scotia Advocate. Oct. 6, 2020
8. “Scale of Sipekne’katik fishery won’t harm lobster stocks, says prof”. CBC News. Sept. 22, 2020
9. “Nova Scotia chiefs rejected $87-million offer from DFO, want moderate livelihood defined” Ku’Ku’kwes News. Oct. 5. 2020
10. “Moderate Livelihood Fishery Update What has been developed?” Assembly of Nova Scotia Chiefs. August 2020
11. See also Indigenous Watchdog “Declaration on the Rights of Indigenous People” and Royal Proclamation and Covenant of Reconciliation”