Saturday, Sept 26, 11am
Halifax Waterfront (by the big wave)
fb event here
All Mi’kmaq people have the right to fish for a moderate livelihood. This is protected by the treaties and affirmed by the Supreme Court in 1999. Treaty rights are enshrined in Canadian law through the constitution, which is the highest law in the Canadian legal system.
Mi’kmaw fishers are currently under attack by angry non-indigenous fishers who mistakingly claim that Mi’kmaw fisheries have no basis in Canadian law. Come out to show solidarity with Mi’kmaq people earning a moderate livelihood through the fishery!
If it was legal for Donald Marshall Jr to sell eels, then it’s legal for Mi’kmaq to sell lobster.
We condemn the violence that has happened over decades as a result of the conflict over access to the fishery. Fishing organizations need to call on their members to stop acts of violence, stop shows of intimidation, stop cutting and stealing traps, and stop intimidating those that buy Mi’kmaw lobster.
Minister of Fisheries and Oceans Bernadette Jordan must stop calling treaty fishing ‘illegal’, and must apologize for doing so. This mischaracterization has fomented even more violence.
**To support Mi’kmaw Fishers on the ground in Saulnierville, send e-transfers to: wasawek39@hotmail.ca**
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BACKGROUND
Racial tensions are high in the Digby-area of Nova Scotia, as non-indigenous fishermen are organized in large numbers to intimidate, cut and take the lobster traps of Mi’kmaw small-scale fishers. Tension has been building since September 15, when non-indigenous fishermen constructed a wall of lobster traps as a barrier to keep Mi’kmaw fishers from accessing the water. Two days later – on the 21st anniversary of the Marshall decision – Sipekne’katik First Nation launched a “moderate livelihood” fishery, issuing 5 licenses for 50 lobster traps each. The Mi’kmaw fleet of boats attempting to carry out this modest lobster fishing have been repeatedly blocked and threatened by over a hundred boats belonging to commercial fisheries, by cutting their lobster traps and firing flares directly at Mi’kmaw boats. Meanwhile, on land, sharpened bolts are used to intentionally pop the tires of Mi’kmaw cars of supporters gathered on land. Mi’kmaq are reportedly being denied service in stores, violence is directed at Mi’kmaq, and any business who buys Mi’kmaw harvested lobster is being targeted. In response to the violence, the Assembly of Nova Scotia Mi’kmaw Chiefs declared a State of Emergency due to political unrest for the whole of the mainland of Nova Scotia.
Marshall Decision
R. v. Marshall established the Treaty right to fish after Donald Marshall Jr., a Mi’kmaw man from Membertou First Nation in Sydney Nova Scotia, was arrested in 1993. He was arrested for catching and selling eel without a licence, with an “illegal” net, and during an off-season. He was then wrongfully charged under the federal Fisheries Act and the Maritime Provinces Fishery Regulations and was found guilty on all three counts.[1]
However, in 1999 the Supreme Court of Canada reversed this decision. The Supreme Court finally recognized Treaty rights under the Peace and Friendship Treaties and interpreted them as the right to a “moderate livelihood” from fishing. Despite the court reversing Marshall’s convictions, a “moderate livelihood” has never been fully defined by the courts, but was distinguished from the concept of “bare subsistence” and included “food, clothing and housing, supplemented by a few amenities”.[2]
Treaty Rights
Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system. These rights are held collectively by Mi’kmaw rights holders and include the right to hunt and fish unhindered and the inherent right to self-governance. Specifically, the 1752 Peace and Friendship Treaty states that “it is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual”.
Conservation issues?
Generally, Mi’kmaq make up a small proportion of the lobster fishing industry. Non-indigenous commercial fishermen are provided 375 trap tags per license, and they have 979 licenses in the Saulnierville area[3]. By comparison, the Sipekne’katik First Nation gave out 50 tags each to 7 licenses valid for 3 months[4]. In total, there are an estimated 60 Mi’kmaw harvesters who are currently lobster fishing in the Bay of Fundy and St. Mary’s Bay off the coast of Nova Scotia.[5] They account for less than 1% of the industry in terms of number of traps and should not make a dent in lobster stocks.
While the Marshall decision does leave the door open for regulating Mi’kmaq fishing if there are conservation issues, in order to justify this need, the Court concluded that the Sparrow Test would have to be met. The Sparrow test looks at whether the effect of the restriction unnecessarily infringes the interests protected by the Aboriginal right. It also requires that “the Aboriginal right be given priority over the interests of other groups”[6], that there is as little infringement as possible, and that First Nations are consulted, and compensated, if necessary.
Currently, Clearwater has “a yearlong season and no trap limit”[7] in Lobster Fishing Area (LFA) 41. Clearwater has also been charged with leaving traps unattended for weeks on end, which DFO called a ”serious conservation risk”. According to the Ecology Action Centre, LFA 41 is where many of the biggest breeding females are that support the inshore populations[8]. Given that Mi’kmaq rights should be given priority over groups like Clearwater, it seems unlikely that a court would rule that Mi’kmaq should not have year-round access, while Clearwater does. Also, this aspect of the Sparrow test suggests that the DFO should give out less commercial fisheries licenses to non-indigenous lobster fishers if conservation becomes an issue.
The Marshall decision states that “the complexities and techniques of fish and wildlife management vary from species to species and restrictions will likely have to be justified on a species-by-species basis.”[9] The Lobster populations in Nova Scotia are currently healthy, so proving the need to restrict access to Mi’kmaw rights holders would also be difficult on this level.
1: “We are all Treaty people: Support Mi’kmaq fishers” Spring Mag
2: R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 SCR 456
3. “Scale of Sipekne’katik fishery won’t harm lobster stocks, says prof” CBC News
4: facebook post by Chief Andrea Paul
5: “Nova Scotia Mi’kmaw lobster harvester to file an injunction against DFO for seizing traps” Kukukwes News
6: Case Brief: R. v. Sparrow, [1990] 1 S.C.R. 1075
7: “A line in the ocean and Clearwater’s monopoly over 720 tonnes of lobster” CBC News
8: “Clearwater’s Illegal Fishing Brought to Court” EAC
9: R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 SCR 533
