Mi'kmaw community says rights-based fishery regulations rival those of DFO

The First Nation community operating a new, self-regulated lobster fishery in Nova Scotia says its harvesting regulations rival and may even exceed the standards of the Department of Fisheries and Oceans.

"They're pretty much the same regulations when it comes to the [DFO regulated] commercial season," said Brandon Maloney, director of fisheries for Sipekne'katik First Nation, which launched its first Mi'kmaq-regulated fishery in Saulnierville, N.S., last Thursday. 

The launch followed decades of disagreement with government officials over the Mi'kmaq treaty right to earn a "moderate livelihood" from fishing, affirmed by the 1999 Supreme Court ruling in the Marshall case. A rare clarification by the Supreme Court stated that the federal government could regulate treaty fishing if it was justified and if the Mi'kmaq were consulted.

Debate on the issue has been tense online and in communities near Saulnierville, and has often focused on DFO's yet-to-be-determined position on what qualifies as a "moderate livelihood."

Following recent claims from non-Indigenous commercial fishers that Mi'kmaq are using illegal bait and equipment, Maloney said the band's regulation policies on safety, conservation monitoring and fishing gear are to the same standards as the commercial fishery.

"The trap sizes, escape hatches … all of those have been adopted from the commercial [DFO regulated] season," he said. 

"It's just easier because all of the traps are already equipped that way."

Maloney said in some cases, the regulations specific to monitoring and counting the catch at the wharf may even exceed DFO's, given that the Mi'kmaw operation yields so few lobster in comparison.

Photos of modified traps

On Sunday, a news release by Coalition of Atlantic and Quebec Fishing Organizations, which represents numerous fishing associations in the Atlantic region and the Maritime Fishermen's Union [MFU], called on DFO to "publicly haul-in thousands of lobster traps set out of season."

"This is about conserving the fishery for everyone – both Indigenous and non-Indigenous fishermen," said Bernie Berry, president of the Coldwater Lobster Association, in the release. 

"Unless there is one set of rules driven by conservation of the fishery, Canada's fishery will be destroyed."

The release included a photo of lobsters in what appears to be a damaged, modified trap. "Illegal sea trap with escape mechanism blocked with tie wraps," the caption reads.

A spokesperson for the coalition did not provide sources for the photos, but said they were "pretty confident" the photos came from the commercial fishers in St. Mary's Bay. Further requests for comment on the release were not returned.

Maloney, who has seen the photos circulating on social media, said he believed they were evidence that non-Mi'kmaw fishers were violating DFO general regulations.

"The only thing that's clearly illegal in that whole situation is [commercial fishers] pulling up someone else's gear. It doesn't matter what pictures they take, they've already had the time to sabotage it," he said.

"They're illegally pulling them up to vandalize them and make us look bad…. It's disturbing."

DFO declined to comment on whether or not citations have been issued since last Thursday in the area surrounding the Mi'kmaw traps, instead referring to a joint statement issued Monday by DFO Minister Bernadette Jordan and Crown-Indigenous Relations Minister Carolyn Bennett.

"DFO fishery officers, Canadian Coast Guard vessels and personnel, Royal Canadian Mounted Police, and Public Safety officials are co-ordinating their efforts in the sea, on the land, and in the air, and are working with officials from the Province of Nova Scotia to respond to any dangerous situations as they may arise," the statement reads.

"We want to work with First Nations leaders on the path forward of the implementation of their treaty right, and look forward to upcoming conversations on this matter.

According to the list of 2020 convictions related to fisheries law on the DFO website, there are 2 convictions that can shed light on the legality of actions by Mi'kmaw and non-Indigenous fishers in the dispute.

In July, a $3,000 fine was issued to a person under the DFO general fishery regulations, for "tampering with traps, nets, bait or any other thing used for fishing [and] interfering with the conduct of fishing activities by another person." 

 A few months before, in April, a $1,500 fine was issued to a person under the DFO Atlantic fishery regulations for "fishing for lobster during a closed time."  

Rights 'protected in perpetuity' 

According to Maloney, the seven Mi'kmaw harvesters who received moderate livelihood licences from Sipekne'katik on Thursday also received the Rights Implementation and Fishery Management Plan, an 18-page document that explains the band's policies on areas like licensing and harvesting, the sale and intended use of lobsters, and a section of 27 general regulations. 

The plan includes a list of eight objectives that "advance the principles defined in the United Nations Declaration on the Rights of Indigenous Peoples and form the basis for fishery decision making," the document reads.

According to the list, their objectives are:

• To ensure conservation of the resource to protect and exercise Mi'kmaq Treaty and Aboriginal Rights to harvest natural resources for the benefit of the community and its members.
• To alleviate family poverty and advance the size and security of the middle class within the Sipekne'katik community
• To ensure community adherence to the traditional Mi'kmaq principles of Netukulimk.
• To contribute to the social and economic well being of the community.
• To develop and promote livelihood fishing activities that will provide stable and effective employment and income for community members.   
• Provide food to meet the nutritional and social needs of local Sipekne'katik band members.
• To ensure the public and harvester safety are protected.
• To have economically self-sufficient fishing operations, including management and administration.

"Conservation" refers to the protection and preservation of fisheries resources "to ensure the Mi'kmaq Rights are protected in perpetuity," the document reads.

Maloney said the plan has been in the works for three years, and was based on community consultation through multiple surveys and in some cases, house-to-house visits. 

Maloney said the captains and crews remain positive despite the opposition the Mi'kmaq have faced harvesting under the new fishery. 

"A lot of them were born into this, they don't know anything else," he said. 

"They're just really proud people. It's half and half for them — they want to fish and make a living, but they also want to stand up for their rights."