Non-Indigenous inshore lobster fishers in Nova Scotia are clashing with First Nations lobster fishers who are exercising a right the Supreme Court recognized in its Marshall decision of 1999.
Donald Marshall, who died 11 years ago, was the Mi’kmaw man who spent 10 years in jail for a murder he did not commit and whose name has since become synonymous with wrongful conviction.
The 1999 court decision on fishing rights is Marshall’s other claim to fame.
After his release from prison, Marshall took up fishing for eels near Antigonish, Nova Scotia. The authorities arrested him for that and charged him with catching and selling his fish out of season. That case went all the way to the Supreme Court, which ruled that two 18th-century treaties give First Nations peoples of the Atlantic provinces and Quebec’s Gaspé peninsula the right to fish, in or out of season, for what the court called a “moderate livelihood.”
The court did not define how much is moderate. It left that up to the federal government.
But one thing is clear, the right to a moderate livelihood, for this particular group of First Nations, went beyond the Indigenous right, established by an earlier Supreme Court decision, to harvest fish for food, social, and ceremonial purposes — but not sell them for money.
The federal response to the Marshall decision was to launch two programs, the Marshall Initiative, which ended in 2007, and the Atlantic Integrated Commercial Fisheries Initiative, which supplanted the Marshall program.
Those programs included assistance to Indigenous groups in setting up various types of fishing operations, assistance which came in the form of licenses, vessels, gear and training. The federal Department of Fisheries and Oceans (DFO) boasts that its efforts bore fruit: the value of First Nations commercial landings in the region went from $3 million in 1999 to $145 million in 2015.
The Mi’kmaw First Nation of Sipekne’katik’ in southwest Nova Scotia waited 21 years after the Marshall decision, until this year, to set up its own moderate-livelihood fishery for lobster. This season they have set a small number of traps for the highly prized shellfish in St. Mary’s Bay, the portion of the Bay of Fundy that is bound by the long strip of land known as the Digby Neck and mainland Nova Scotia.
Five hundred and fifty Indigenous traps; 400,000 non-Indigenous
The hundreds of non-Indigenous inshore Bay of Fundy fishers are not happy. They claim the First Nations fishers are harvesting lobster out of season, endangering the entire stock on which all of the fishers, Indigenous and non-Indigenous, depend.
The moderate voices among non-Indigenous fishers, such as that of Colin Sproul, president of the Bay of Fundy Inshore Fishermen’s Association, insist that they are sympathetic to the First Nations people and understand their long struggles for recognition of their rights. Sproul has worked with the progressive group the Council of Canadians on campaigns to limit off-shore oil and gas drilling in his part of the world, and even uses such phrases as settler colonialism with confident ease.
Sproul and others like him say that the treaty rights of the Indigenous groups have to be balanced against the needs of conservation. It is the moulting season for the lobster in St. Mary’s Bay, they say, making that population of lobsters especially vulnerable at this time. And so, at the moment, Sproul and other moderates say, conservation must take precedence over the exercise of Indigenous treaty rights under the Marshall decision.
Others in the non-Indigenous camp don’t waste time on words. They speak with acts of arson, intimidation and vandalism — and threats of worse.
The RCMP acts as the police force for the province of Nova Scotia, but has been suspiciously passive in its reaction to the violence directed against First Nations. The RCMP’s attitude seems to be that the Indigenous lobster fishers and those who have resorted to what amounts to acts of terrorism are somehow equivalent.
On CBC radio, Senator Murray Sinclair decried that attitude. He said it reminded him of U.S. President Trump’s comment after counter demonstrators confronted torch-bearing neo-Nazis who had invaded Charlottesville, Virginia, chanting “Jews will not replace us.” Trump said there were “good people on both sides.”
While the RCMP is a federal police force, in this case it is acting as the provincial police force, directly responsible to the Liberal government of Nova Scotia. Prime Minister Trudeau told the House of Commons on Tuesday night, during an NDP-requested emergency debate on this crisis, that he has had conversations with Nova Scotia Premier Stephen McNeil, who agreed to beef up the police presence along St. Mary’s Bay.
The RCMP has called in reinforcements from other Atlantic provinces, but the question remains: Will the police officers recognize that the Indigenous fishers are the law-abiding people here, while their tormentors are the criminals? The RCMP has a long history of treating First Nations people as the other, the threat, the enemy, and old habits die hard.
As for the notion that Indigenous fishers, even out of season, can really pose a threat to what federal fisheries and oceans experts say is a healthy stock of lobster, consider this. The Sipekne’katik First Nation has issued a grand total of 11 lobster licences, with 50 traps each. The federal government grants nearly 980 non-Indigenous commercial lobster licences in this particular lobster fishing area, each with about 400 traps. That makes a total of nearly 400,000 non-Indigenous traps. The Indigenous fishery has 550 traps, a tiny fraction of the massive non-Indigenous inland fishery.
The independent fishers of the Bay of Fundy have little to fear from the Mi’kmaw effort to earn what is truly a moderate livelihood from the resource on their traditional territory.
Big offshore fishery and lurking threat of climate change
Of greater threat to the small non-Indigenous independent inshore operators is the presence of a large and lucrative offshore fishery, where the players include the giant corporate fishing enterprise Clearwater.
The Halifax Examiner published a long analytic piece on the Nova Scotia lobster industry on October 10.
The authors, Joan Baxter and Linda Pannozzo, point out that Clearwater engages in some dubious practices, such as leaving traps in the water longer than the legal limit of 72 hours. The company was fined for that practice, which independent fishers say causes waste when lobsters die or eat each other and the bycatch of other species.
Because Clearwater has significant political clout — it has permanent lobbyists in Ottawa — it succeeded in getting the federal government to loosen the 72-hour regulation, much to the chagrin of smaller operators.
Of more critical concern, Baxter and Pannozzo point out that the greatest long-term threat to the lobster fishery is climate change. Because of warming waters there are almost no lobster left in southern New England waters. Some of the lobster have relocated north to Atlantic Canada, but our waters are growing warmer too, and we are also experiencing other deleterious impacts of climate change.
Among those is excess carbon in the atmosphere, which gets absorbed by the ocean and then reacts with water to make the ocean more acidic. When this happens, calcium, which lobsters needed to build hard shells and bones, is less available to them.
To assess the health of the Atlantic lobster population it is necessary to monitor the lobster stock offshore, but that is not an easy task. Clearwater has a monopoly over a good part of the stock and does not reveal where it catches fish. Canada’s privacy laws protect this policy of secrecy.
Scientists believe the inshore and offshore lobster populations are connected. DFO specialists note that lobsters travel and can migrate, in some cases, up to hundreds of kilometres.
Experts warn that this highly prized and lucrative species is not immune to the fate of the cod and other groundfish that used to be so abundant off Canada’s Atlantic coast.
We simply do not know enough about the offshore stocks to make any certain evaluation.
Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble’s politics reporter.
Image: Courtesy Sipeknekatik