Potlotek First Nation seeks injunction against DFO over self-regulated fishery

Potlotek First Nation in Cape Breton is seeking a court injunction to prevent the Department of Fisheries and Oceans from interfering with its moderate livelihood fishery.

The band says it intends to sue DFO, as the dispute continues over the seizure of lobster traps by federal fisheries officers, including more than three dozen last month.

"Hopefully, you know, this will keep them off our backs and let our guys fish, and women also — they're just trying to make a living. An honest living," Potlotek Chief Wilbert Marshall said in a video about the court case.

A number of First Nations communities in the province, including Potlotek, launched their own self-regulated lobster fisheries last year to mark the 21st anniversary of the historic Supreme Court of Canada decision that affirmed Mi'kmaw rights to fish for a moderate livelihood.

Many commercial fishermen have opposed the fisheries operating outside commercial seasons. In March, federal Fisheries Minister Bernadette Jordan said Ottawa will not licence any treaty-based fishery in Atlantic Canada unless it operates within the commercial season.

Gear confiscated

Marshall said Potlotek will be seeking an injunction to stop DFO from enforcing its fisheries regulations.

"Hopefully, they stay away from us. I think with the help of our lawyers and our community members also staying strong and staying good to their word, and you know, we're going to fish as peaceful as possible. We don't want to fight with nobody."

Marshall said fishermen fear losing their gear after a man from Potlotek had 37 traps seized last month in St. Peters Bay. During its fall moderate livelihood fishery, Potlotek lost another 150 traps to enforcement officers.

"They're scared to death of that," Marshall said in the video, describing fishermen's concerns over gear. "They don't have the money, they don't have the resources to buy all their gear because they're on their own, right?

"We're here for support, but they're actually buying their own traps and everything."

When reached by phone, Marshall said he was unavailable for an interview. 

Not backing down

According to court documents, filed this week in Nova Scotia Supreme Court in Halifax, Potlotek is seeking a declaration that Fisheries Act regulations infringe upon Mi'kmaw treaty rights.

"We're not backing down," Marshall said. "We're going to keep fishing, and going to be right behind our community."

According to Marshall, harvesters were "harassed by DFO" on the opening day of Potlotek's spring fishery late last month.

The Assembly of Nova Scotia Mi'kmaw Chiefs said in an email that DFO's conservation and protection program has no jurisdiction among livelihood harvesters.

Other lawsuits filed

In an email late Tuesday, DFO said it was aware of the filing.

 "We will take the necessary time to review it and determine next steps," said spokesperson Robin Jahn. "Our goal is always to work in partnership, nation-to-nation, to resolve issues"

In separate lawsuits announced earlier this year, both Potlotek and Sipekne'katik First Nation said they intend to sue the Nova Scotia government over the right to sell catches from the moderate livelihood fishery.

While the Supreme Court's 1999 decision affirmed the treaty right to fish for a moderate livelihood, it did not define the term. Since then, negotiations have unsuccessfully sought to find a definition.

A clarification issued by the court said the federal government could regulate the fishery, but only if it could justify doing so on conservation or others grounds and consulted with the First Nation.

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