N.S. Liberal MP goes against party, calls on DFO to put First Nations fishing rules in writing

The Liberal MP representing the area where the First Nation at the centre of a dispute over lobster fishing is located says its time the Trudeau government defined the rules for an Indigenous moderate livelihood fishery — but the proposal was quickly shot down by the office of the minister of Fisheries and Oceans.

Kody Blois, MP for Kings-Hants, is calling on federal Fisheries Minister Bernadette Jordan to use the authority recognized by the Supreme Court of Canada 21 years ago to regulate a moderate livelihood fishery and end "the ambiguity and uncertainty around how and to what extent indigenous fishers can exercise their rights, particularly in 'off-season.'"

"The Supreme Court had contemplated the introduction of regulatory limits by the Government of Canada," Blois wrote to Bernadette Jordan this week in a letter posted on his Facebook page.

"The inclusion of a regulatory framework of how the moderate livelihood right can be exercised under the Fisheries Act could be justified on the grounds of conservation while avoiding social discord between Mi'kmaq and commercial fishers."

Blois was not available for an interview Wednesday and Jordan's press secretary, Jane Deeks, rejected the idea when contacted by CBC.

"This does not reflect the position of the government nor the views of the Minister," Deeks told CBC News.

Last week the Sipekne'katik First Nation became the first in the province to launch its own moderate livelihood lobster fishery in southwest Nova Scotia outside of DFO regulations and seasons, citing the treaty right recognized by the Supreme Court of Canada in the 1999 Marshall decision.

The Supreme Court said the federal government has the authority to regulate that treaty right, if the Mi'kmaq were consulted and any restrictions were justified.

Successive Canadian governments have spent hundreds of millions of dollars to integrate Atlantic Canadian First Nations into the fishery, mostly buying up and distributing commercial licences. But the rules governing a First Nation's moderate livelihood fishery have not been settled. Mi'kmaq leaders blame the federal government.

Tensions rising in southwest Nova Scotia

The Sipekne'katik launch, which included an emotional ceremony attended by members of the Mi'kmaq Grand Council, thrilled First Nations who celebrated the realization of rights affirmed two decades ago.

They say there are too few fishermen involved — seven have each been given 50 lobster trap tags — to threaten lobster stocks.

Two other Nova Scotia bands are poised to launch their own moderate livelihood fishery outside DFO regulations.

The situation has raised tensions in southwest Nova Scotia and put the fisheries minister in an awkward position, since commercial fishing when the season is closed is not allowed.

Commercial fishermen in the area were already angry that some Sipekne'katik band members were using a summertime communal fishery in St. Marys Bay as a commercial fishery, even though the licence condition does not permit the sale of the catch.

They say it is irresponsible to allow a fishery when the season is closed for breeding and they do not accept claims the fishery will be benign.

Minister Jordan initially shared those concerns when she issued a statement on the day of the fishery launch warning against the Sipekne'katik moderate livelihood fishery without department concurrence.

"Until an agreement is reached with DFO, there cannot be a commercial fishery outside the commercial season," Jordan said.

The launch of the livelihood fishery prompted protests by commercial fishermen who arrived in a flotilla of boats in St. Marys Bay and pulled traps dropped by band members.

Fisheries minister backs moderate livelihood

This week, Jordan and Carolyn Bennett, minister for Crown-Indigenous Relations, issued a new statement reaffirming federal government support for a moderate livelihood fishery.

"This government is firmly committed to advancing reconciliation, respecting Indigenous treaties, and implementing First Nation rights, and we firmly believe that respectful, constructive dialogue is the way to achieve this," Jordan and Bennett wrote.

There were no references to Fisheries Act violations or enforcement. Instead, there was a warning for protesting commercial fishermen.

"We share the concerns of the Assembly [of Nova Scotia Mi'kmaw] Chiefs for the safety of their people. There is no place for the threats, intimidation, or vandalism that we have witnessed in South West Nova Scotia. This is unacceptable."

Jane Deeks, Jordan's press secretary, said the most recent statement is the operative position of the federal government.

Former fisheries minister weighs in

MP Kody Blois says Ottawa defining moderate livelihood regulations could "ensure the Indigenous communities I represent can exercise their treaty rights in a peaceful manner" and offer commercial fishermen "greater clarity on the limits, if any, that are applicable to moderate livelihood rights."

But if it results in a court challenge, that's something to be avoided, said Robert Thibault, who served as the fisheries minister under former Liberal Prime Minister Jean Chretien and dealt with the initial federal response to the Marshall decision.

Thibault said it's a case no federal government wants to take to the Supreme Court because the outcome could alter fisheries nationwide.

"We're looking right now at St. Marys Bay where a few native communities have an interest," he said. 

"If you go back and you bring all this back to the court, you're going to make decisions probably that's going to impact everybody, all fisheries, unintended consequences that could give even bigger problems in our ability to manage it for economic and social good for all of Canada."

Thibault's home is near the Saulnierville, N.S. wharf where the Sipekne'katik fleet is tied up.

It has been the scene of protest activity on and off the water.

"I think this might have put fear in people. Now there's a big chance of unfortunate accidents happening, of innocent people getting hurt," said Thibault.

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