The Sipekne’katik band will not fish its commercial lobster licences this season in southwest Nova Scotia, citing intimidation and violence that followed the launch of its moderate livelihood fishery in St Marys Bay.
The decision followed an emergency meeting Friday with fishermen working in the band’s commercial fishery.
“The consensus is that they don’t want to fish in the upcoming season due to concerns of safety. There is also the concern of not being able to sell our lobster,” said Chief Mike Sack.
“As of right now, our people aren’t comfortable taking that big risk and especially risking their life for that.”
Sipekne’katik’s decision means band members won’t fish the nine lobster licences Sipekne’katik holds in Lobster Fishing Area 34 when the season opens next month.
The First Nation still has the option to lease those licences to non-Indigenous fishermen, which could be worth as much as $450,000.
The Assembly of First Nations is coming under fire for exercising their rights
Members of the Sipekne’katik First Nation prepare to go fishing in Saulnierville, N.S., on, Sept. 17, 2020.THE CANADIAN PRESS — Andrew Vaughan
The Assembly of First Nations is coming under fire for exercising their rights under a treaty signed in the Treaty of 1760-61. According to the treaty Mi’kmaq have a right to barter and trade any goods they can acquire by hunting, fishing, and gathering, so they can make a moderate living. In the 1999 Marshall Decision, the Supreme Court of Canada upheld the treaty rights of the Mi’kmaq and other Nations along the Atlantic coast when it was disputed.
Mi’kmaw are facing aggression from non-Indigenous fishermen in Saulnierville, Nova Scotia where Sipekne’katik First Nation is launching a fishery. They are having their boats surrounded, so they are unable to drop their traps and engage their rights.
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Vandalism, threats, and assault. These are just a few of the violent incidents Mi’kmaw fishers are facing in Nova Scotia
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In the past month, the Sipekne’katik First Nation and the Potlotek First Nation placed lobster traps in bays at the opposite ends of Nova Scotia. Each community had developed a management plan based on their treaty rights to earn a moderate livelihood.
The response to these actions by non-Indigenous fishers has led to national and international coverage of the ensuing violence, including damage to property and assault. Both non-Indigenous fishers and the Fisheries Department (DFO) have since seized some of the lobster traps.
The conflict has largely centred on whether the lobster stock is threatened by out-of-season fishing, and the definition of a “moderate” livelihood. However, this focus misses the root of the Mi’kmaw livelihood issue, namely the question of who has the authority to govern livelihood activities and how it is done.
Researching the issue
We’re part of a small group that has been examining these very issues since 2014, and includes scholars with expertise in ocean governance and marine policy and colleagues from the Assembly of First Nations. Our research project, Fish-WIKS, aims to understand how Indigenous and western knowledge systems can be used to improve the sustainability of Canadian fisheries.
The processes that feed into decision-making in fisheries in Canada have been primarily influenced by western science‐based knowledge systems that focus on a reductionist approach to understanding problems. In contrast, Indigenous ways of knowing are based on world views and values that are integrative and holistic, or as Elder Albert Marshall of Eskasoni First Nation once spelled out, “wholistic.”
Who would have guessed that our results from examining an alternative governance structure for the livelihood fishery in Nova Scotia through the lens of both knowledge systems, referred to as “two-eyed seeing,” would coincide with the current conflict playing out in the lobster fishery?
Two-eyed seeing
In two-eyed seeing, knowledge is viewed as a system that comprises what is known and how it is known. But a knowledge system, whether western or Indigenous, is composed of many things.
Conceptual illustration of components of a knowledge system. (A. Giles, L. Fanning, S. Denny and T. Paul, 2016)
What we know, how we practise our knowledge, how we adapt to it and how we transmit and share knowledge are the more familiar elements. But the values and beliefs that underpin these elements, and which actually distinguish one knowledge system from another, are often ignored.
This is a problem because the values and beliefs underpinning one system are often at odds with those of another system, potentially creating a barrier to collaboration. However, the Fish-WIKS projects showed there are similarities that can bridge these knowledge systems and lead to greater understanding of the differences.
Governance gaps
Our research identified a number of gaps in governance that have contributed to the lobster fishery situation we have today.
There is still no federal policy to address livelihood fisheries and the issue of livelihood as a treaty right is not mentioned in the Aboriginal Fisheries Strategy, the primary policy guiding the federal response to Indigenous fisheries
There are also conflicting views on who has the authority to manage fisheries, which stem from the perceived legitimacy of each governing system. Legitimacy influences whether a political action is perceived as right or just by those who are involved, interested and/or affected by it.
The two sets of rules for fisheries arise from the protection of Aboriginal and treaty rights in sections 25 and 35 of the Constitution, complicating the issue of legitimacy. This legal pluralism gives DFO the authority over non-Indigenous commercial fisheries while limiting its capacity to govern Indigenous fisheries.
A Mi’kmaw fisher holds his son on his boat before heading out to set traps in Saulnierville, N.S. on Oct. 21, 2020. THE CANADIAN PRESS /Andrew Vaughan
In addition, Canada must justify any limits it places on the rights of Indigenous people engaged in fishing practices, as determined by the Supreme Court of Canada in R. vs. Sparrow in 1990. The court also affirmed Miʼkmaw treaty rights in R. vs. Simon in 1985 and R. vs. Marshall in 1999.
Our research confirms that Mi’kmaq are aware of challenges with the exercise of treaty rights and supports the necessity for Mi’kmaq to develop fishery and fishing rules that are legitimate in the eyes of Mi’kmaw fishers, non-Indigenous fishers and DFO. Some communities have developed such rules, incorporating knowledge from both western and Indigenous systems.
However, the question remains, does DFO have the justification to intervene with Mi’kmaw lobster livelihood fishing practices if, as Dalhousie University fisheries expert Megan Bailey pointed out, there is no scientific evidence that the current practice of the lobster livelihood fishery threatens the sustainability of the stock?
This needs to be cleared up. The Fisheries Act gives the DFO broad regulatory authority and this may extend to Indigenous fisheries. But the Marshall decision narrows that authority to apply only “where justification is shown.”
Moving forward
Canadians need to recognize that this current conflict playing out in Nova Scotia represents not only an operational nightmare for DFO but is a deep-seated governance issue. It requires developing a mechanism by which Mi’kmaq can legitimately contribute to the governance of fisheries as an integrated whole.
Short-term solutions will be identified, but a longer-term solution must address the legal pluralism that exists in Canada and facilitate the adoption of other forms of governance models in which DFO does not have exclusive authority.
The current focus on the lobster livelihood fishery and finding a dollar definition for “moderate” misses the fact that the underlying governance gap is the crux of the issue.
Riversdale says Grassy Mountain will be different.
Gary Houston, the company’s vice-president of external affairs of Riversdale Resources, says the project north of Blairmore was “specifically designed from the ground up to effectively capture and treat selenium in water sources.”
As conservation director with the Canadian Parks and Wilderness Association’s southern Alberta branch, Katie Morrison worries about the water in particular.
For years, the B.C. mines leached selenium into streams and rivers, despite efforts by mining giant Teck to control the pollution. Selenium is an element that can be toxic in large amounts and it has been routinely detected at levels well above guidelines in waterways downstream of the B.C. mines.
She says the mitigations the company has proposed are “really new” and “fairly untested at the scale of a mine.”
“When we look at the history of coal mining, both just over the border in the Elk Valley, as well as other places in North America, there has actually never been a case where the mine has successfully been able to mitigate and control selenium release,” she said.
“So best laid-plans and intentions by the companies to mitigate, but I don’t really have any confidence that things won’t go wrong.”
Some residents of historic Crowsnest Pass, Alta., hope a new mining opportunity will lift up their town’s economy. But others fear negative consequences from open-pit mining in a postcard setting tucked at the foot of the Rocky Mountains.
In mid-September, the Sipekne’katik First Nation launched a moderate livelihood lobster fishery along the coast of southwestern Nova Scotia. Its fishers set out an estimated 250 traps at the time, the equivalent of one commercial boat.
Some, including the commercial fishing sector, worried this new fishery was a threat to maintaining healthy lobster stocks. Commercial fishers have articulated two conservation concerns about the Sipekne’katik fishery: its scale and whether fishing during the summer season — when lobsters molt and their shells are soft — is a problem for the survival of lobsters that are thrown back.
Yet two decades later, there has been no clarity on what “moderate livelihood” means, nor how implementation of the treaty right should unfold. Great people have been working on it, but it is not a trivial question.
Others have as well, including Listuguj and Potolek First Nations.
Fire destroyed a lobster pound being used by Mi’kmaw fishers in Middle West Pubnico, N.S., on Oct. 17, 2020. THE CANADIAN PRESS /Andrew Vaughan
The protests over the Mi’kmaw fishery have escalated to acts of vandalism and violence. The message from commercial fishers is that fishing in St. Marys Bay outside the commercial season is illegal and a conservation concern. In fact, it is neither.
Fisheries and Oceans Canada (DFO) did not immediately help the situation. Fisheries Minister Bernadette Jordan and Crown-Indigenous Relations Minister Carolyn Bennett waited five days to make an explicit statement that it was, in fact, a legal fishery. By that time, the commercial sector’s view became further entrenched.
Conservation concerns unfounded
The commercial lobster season in Lobster Fishing Area 34, where the bay is located, runs from late November to late May. The livelihood fishery was launched outside that, leading the commercial harvesters to label it as illegal. Yet, as Shelley Denny, a Mi’kmaw doctoral student at Dalhousie University, points out, there are two sets of rules for Indigenous and non-Indigenous fish harvesters. The Indigenous fishery is not illegal, but is it a conservation concern?
The sun sets over the wharf in Saunierville, N.S. (Brandon Maloney), Author provided
Initially, five Sipekne’katik vessels were fishing 50 traps per vessel; there are now reportedly 10 vessels fishing a total of 500 traps. Compare that to the commercial sector, where each vessel — there are about 100 fishing in the bay — is allowed to fish 350 traps, for a total of about 35,000 traps.
There is no reason, no science, to suggest that the equivalent of one or two commercial vessels fishing in St. Marys Bay will be problematic. Lobster biologist Robert Steneck would bet you a beer there will be no negative impact on the lobster population.
Fisheries scientists and managers need only look to our neighbour to the south, Maine, which operates a year-round lobster fishery. In the summer, lobster molt and their shells are soft, resulting in a lower quality lobster. The Canadian market doesn’t prioritize these lobsters, even though Maine does.
These lobsters are more susceptible to what’s called “post-release mortality,” meaning that those lobsters that cannot be kept — lobsters that are too small or females bearing eggs, for example — are thrown back and may not survive. This mortality needs to be accounted for, but it doesn’t mean it’s not sustainable to fish during the summer.
Normal catches
One index fisheries scientists use to measure the status of a resource is called catch per unit effort (CPUE). In this case, lobster is the unit and the effort invested is one vessel.
While not perfect, the CPUE represents a relative abundance of lobster in a given area. When CPUE falls, it may be a sign that fewer lobsters are available in that particular area, but may or may not signal that the population as a whole may be in trouble.
Members of the Sipekne’katik First Nation load lobster traps on the wharf in Saulnierville, N.S., in September 2020. THE CANADIAN PRESS/Andrew Vaughan
Data for St. Marys Bay and Lobster Fishing Area 34 show that commercial catches have declined the past two years compared to the 2015-16 season. Commercial fishers have argued this is due to the summer “food, social and ceremonial” fishery that operates outside the commercial season.
The recent protests have targeted the “livelihood” fishery, but it seems that what the commercial sector is actually angry about is the food, social and ceremonial fishery. According to Brandon Maloney, fisheries director for Sipekne’katik, the band developed their plan for this fishery twenty years ago — this is not a new development.
So, what does the CPUE for St. Marys Bay look like over the past 16 years? I took the data released by Fisheries and Oceans Canada and calculated it. Although the CPUE in the past two years are on the lower end of the range, they are clearly within it. And they really only seem low when compared to the highs recorded in 2015-16.
CPUE for St. Marys Bay and Lobster Fishing Area 34, 2002-19. (Author provided. Data from DFO, September 2020.)
The assertion that the drop in bay catches is a conservation concern is wrong, as DFO itself has stated. So if there is no conservation concern, then the assertion that Indigenous summer food fisheries are decimating the stocks, as the commercial sector has argued, is incorrect.
It’s not surprising that commercial fishers are upset by a decrease in lobster landings in St. Marys Bay. But my assessment of the fishery is not why the public has a poor view of the group.
Their behaviour has been abhorrent. The sector needs to address its racism, cease its vigilantism, support dialogue and ensure that its positions are grounded in evidence. And, as Denny argues, it must make room for the livelihood fishery. The rest of Canada — and the world — is watching in shame. We must do better.
Mi’kmaq Warrior Peacekeepers have been called to Nova Scotia to help settle a dispute over their rights. Under the law they are allowed to hunt and fish throughout the year. They aren’t required to observe fishing or hunting seasons like the colonists are. This is upsetting to a lot of people, who for some reason don’t have the ability to understand the law.
A fire destroyed a lobster pound in Middle West Pubnico, N.S., early Saturday morning. The police are calling the fire suspicious. Mi’kmaw fishermen were storing their catch there. Due to the escalating violence towards them it isn’t so hard to guess who the culprits might be.
Indigenous people and the RCMP fall under federal jurisdiction. Nova Scotia Premier Steven McNeil said he didn’t understand why the federal government wasn’t doing more about this issue. It’s debatable whether McNeil’s hands are tied or not. In Alberta, the United Conservative government passed Bill 10, the Public Health Emergency Powers Amendment Act. That means any cabinet minister can make legislative changes without the approval of the legislature. A similar bill, passed quickly in Nova Scotia, and the premier wouldn’t have to blame federal Fisheries Minister Bernadette Jordan for bungling the situation by not establishing a definition of moderate livelihood fishery.
Sipekne’katik First Nation chief Michael Sack made this statement:
“Today we are announcing that Sipekne’katik intends to seek civil remedies against individuals and entities that have infringed against our constitutionally protected rights and who are attempting to prevent and frustrate the legal exercise of our rights – all for what the country and First Nations have watched play out in disbelief.
“The wilful inaction by our law enforcement in the face of criminal actions against our people, and any person is unacceptable. We need to ask, do we find ourselves in a place where we need to protect ourselves? We need to know how can property be damaged, families be threatened, a community’s livelihood be sabotaged in front of us – in front of the world –and the institution that is charged with protecting all people – in their own words simply ‘observing and monitoring’ it all happening?”
The police may not be able to negotiate with the Sipekne’katik, now that the Warriors have been called in. If they feel the police are acting in “bad faith” they may decide to communicate with the Canadian Military instead. In New Brunswick in 2013 First Nations demanded the military as they felt the police had become an “objective.” If they feel the RCMP only represent the interests of the Colonists, they will be dismissed.
For a recap of how this could happen, see Miles Howe’s article in the Rabble.
Taiaiake Alfred, Ph.D., and Lana Lowe, M.A., wrote a paper for the government of Ontario, which aims to “provide factual information on the development and current reality of warrior societies in indigenous communities.” They are a means by which indigenous peoples take direct action against colonization and the history of their dispossession. These tend to be peaceful negotiations unless otherwise provoked. It’s safe to say that no one wants to see anymore violent conflicts. Especially so when one considers firearms could be present.
The abuse of First Nations people and the destruction of their communities is nothing new in Canada. Is Prime Minister Justin Trudeau the man for the job? His father wanted to abolish reserves and turn them into private property. He produced a white paper on the topic but it was later scrapped. It’s possible Trudeau would benefit by calling in Charlie Angus of the NDP. He has worked extensively on community development projects with Canada’s First Nations, working as a negotiator and consultant for the Algonquin Nation of Quebec. He also played a prominent role in calling national attention to the Kashechewan crisis of 2005. Angus has more experience working on indigenous matters and could offer some valuable insight if consulted.
With the Warriors here, this could turn into a national incident if it isn’t handled properly. First Nation’s rights are being exploited by the colonists who won’t honour their own laws or the treaties which spell out indigenous rights. Hopefully both sides will be able to negotiate in good faith.
See Brent Patterson’s wonderful article on the Peace Brigades International website. He has links there on how you can support the Mi’kmaq and their treaty rights and a letter template to email the relevant government officials.
More information here
There’s a few entries on the forum if you would like to read a little but more about what is going on with this issue in Nova Scotia. There’s a comment on this article I posted as well. Just scroll down to see it.
The Sipekne’katik band will not fish its commercial lobster licences this season in southwest Nova Scotia, citing intimidation and violence that followed the launch of its moderate livelihood fishery in St Marys Bay.
