Mi'kmaq drop civil lawsuit, shift legal tactics in moderate livelihood fishing battle

The Potlotek Band and the Assembly of Nova Scotia Mi'kmaw Chiefs are dropping a civil lawsuit against the federal government over moderate livelihood fishing.

The decision represents a shift in legal tactics — not an end in their battle with the Department of Fisheries and Oceans.

In a news release issued Monday, the assembly said it will put its resources into the defence of a Potlotek harvester fishing under a plan approved by the community.

The lawsuit was seeking an injunction to prevent the Department of Fisheries and Oceans (DFO) from interfering with Potlotek's self-regulated moderate livelihood lobster fishery.

The release said the assembly and Mi'kmaw communities have limited resources and cannot afford to be involved in a civil action while also defending against fisheries prosecutions.

"Deciding to discontinue a lawsuit is never an easy decision," Chief Gerald Toney, fisheries co-lead for the Assembly of Nova Scotia Mi'kmaw Chiefs, said in the release.

"But we also recognize that in order to best protect our Treaty Rights and our netukulimk [community approved fishing plan] authorized harvesters, we had to shift our support to do what's best for all Mi'kmaw harvesters."

Mi'kmaw leaders do not accept Canada has the authority to regulate the treaty fishery.

In 1999, the Supreme Court of Canada recognized the right of the Mi'kmaw to pursue a moderate livelihood from fishing in the Marshall cases. It also recognized government authority to regulate that fishery.

DFO continues to seize Indigenous gear

DFO insists that moderate livelihood lobster fishing must take place during commercial seasons.

Fishery officers continue to seize traps and arrest indigenous harvesters fishing out of season without its authorization.

DFO says it is managing the fishery in an orderly and sustainable manner. The Mi'kmaq call that harassment.

"The assembly remains adamant that DFO's conservation and protection branch has no jurisdiction to take any steps against approved community livelihood harvesters," Mi'kmaw chiefs said in the Monday release.

"It is important that DFO understands that our harvesters have a court affirmed right to pursue a moderate livelihood and we will continue to push for solutions so that Mi'kmaq can harvest for a livelihood without any infringement by DFO on our treaty rights," said Potlotek Chief Wilbert Marshall, co-lead of the Assembly of Nova Scotia Mi'kmaw Chiefs.

Commercial fishermen react

Unified Fisheries Conservation Alliance, representing commercial fishermen in Nova Scotia, successfully petitioned to get standing in the Potlotek injunction and a separate lawsuit launched by the Sipekne'katik First Nation.

"From our perspective nothing has changed. Sipekne'katik First Nation still has a very similar action against the attorney general of Canada and we'll be forging ahead to represent fisherman's interests in that case," UFCA president Colin Sproul told CBC News.

"We firmly believe that the minister's authority is paramount and is granted to her by the Marshall decision to manage all lobster fisheries under one combined set of rules and we think that this is key to a sustainable fishery in the future," he said Monday.

Sipekne'katik did not respond to a request for comment.

The assembly did not make anyone available to answer questions about its decision.

Moderate livelihood fishing with DFO blessing is underway

Despite the legal battles, the Department of Fisheries and Oceans reached interim moderate livelihood deals in October with four Nova Scotia Mi'kmaw First Nations in southern Nova Scotia.

DFO said it has an "understanding" with the Acadia, Annapolis Valley, Bear River and Glooscap First Nations to fish a total of 3,500 traps during the 2022-2023 commercial season in the most lucrative lobster fishing areas (LFAs) in Canada.

The understanding will see members sell their catch under community-developed Kespukwirk (the southwest Nova Scotia Mi'kmaw district) Netukulimk Livelihood Fisheries Plans and a DFO-issued harvest document.

It put Indigenous harvesters on the water during the commercial season in LFAs 33, 34 and 35.