By Giovanna Batti
Over the past two months, there have been rising tensions and controversy over the Sipekne’katik First Nations launching a “moderate livelihood” lobster fishery along the coast of Nova Scotia. Mi’kmaq fishers have faced violent attacks, as their equipment and traps were vandalized by non-Indigenous fishers, all in an attempt to exercise their inherent treaty rights.
In the Marshall Case, a 1999 Supreme Court of Canada ruling, the court affirmed the treaty rights of the Mi’kmaq Maliseet and Passamaquoddy bands in Eastern Canada to hunt, fish and gather to earn a “moderate livelihood”(CTV). The court decided that Mi’kmaq fisherman from Cape Breton, Donald Marshall Jr., had the right to fish for eels and sell them when and where he wanted - without a license. That ruling was based on the interpretation of the Peace and Friendship Treaties approved by the British Crown in 1760 and 1761, which describe the long standing promises, obligations and benefits of the Crown (Lethbridge News).
Non-Indigenous fishers argue that the Mi’kmaq should not be able to fish within the parameters that they themselves cannot. The big part of the tension arises from the fact that there is no current definition of “a moderate livelihood”. Times have changed and the treaties signed in the past were not clear on the rules around fishing. However, it is important to note that Aboriginal treaty rights are protected under section 35 of the Constitution Act 1982. The federal government has a responsibility to uphold those boxes of rights that hold the promise that “Indigenous peoples will become partners in Confederation on the basis of a fair and just reconciliation between Indigenous people and the Crown” (Government of Canada).
Non-Indigenous fishers also argue that the Mi’kmaq are endangering the lobster population. They argue that the crustaceans must have ample time to reproduce so stocks do not deplete. However, experts don't agree as commercial fishing boats set out 350 fishing traps everyday (CTV). Two decades ago, non-Indigenous fishers opposed the fishing of the Esgenoôpetitj First Nation, near Burnt Church, New Brunswick. This lobster war lasted three years, with the destruction of Indigenous property (Hakai Magazine).
Trap lines are being cut and the Department of Fisheries and Oceans (DFO) is not protecting Indigenous fishing boats. These standoffs are a clear example of a federal and provincial government failing to take action on policies that they are responsible for acknowledging. According to Global News, Prime Minister Trudeau stated, “We are calling for an end to the violence and harassment that is happening. We need to make sure that our security officials make sure everyone is protected”. The DFO minister, however, is failing to reconcile with the Mi’kmaq as well as allowing the RCMP to turn a blind eye. This is not a case of sustainability and conservation, but rather a case of systemic racism. Non-Indigenous fishers using “ecological sustainability” as an argument is foul, and only adds insult to injury. This is a racial and human rights violation, denying the Mi’kmaq of goods and services they are owed. Essentially the government must address livelihood fisheries as a treaty right. Where are the limits on the rights of Indigenous peoples to engage in these practices? Though this is an operational nightmare, it holds a great amount of importance for legitimizing and altering provincial legislation. The Mi’kmaq of Nova Scotia are creating a framework that will govern how they can exercise their modern rights which they are undoubtedly owed.