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How the DFO implementation of the Marshall decision dealt a blow to both Indigenous self-governance and community-based fishing.

It’s been two months since Sipekne’katik First Nation launched its own self-regulated lobster fishery off the Saulnierville wharf in Southwest Nova Scotia — 21 years after the Supreme Court of Canada ruled in the Marshall decision, affirming the 1760-61 Treaty Rights of the Mi’kmaq to fish for a “moderate livelihood.”

As reported in Part 1 of the Examiner’s Lobster Fishery at a Crossroad three-part series, the underlying tensions between inshore fishers have been brewing for years and led to a recent spate of violence and ugly confrontations on the shores of St. Mary’s Bay: of a non-Indigenous commercial fisher charged with arson and vandalism; two Digby men charged with assault against Sipekne’katik First Nation Chief Mike Sack; a Hants county woman charged with assault; a burned boat and another case of arson, both of which are still under investigation. In mid-October, at the behest of the Band, the Supreme Court issued an interim injunction to end the blockades, interference, and threats against Sipekne’katik band members.

At a November 12 press conference reported on here, Chief Mike Sack announced that his Band was launching “hundreds” of lawsuits related to the way governments, some commercial fishers, and the RCMP reacted to the September launch of its moderate livelihood fishery.

For their part, some non-Indigenous commercial fishers say they’re angry that conservation measures that have been adopted by the fishery to maintain lobster stocks, such as fishing within the designated seasons and generally not fishing when lobsters are spawning or molting, are not being followed by Indigenous fishers or enforced by DFO.

‘The people’s plan’

Brandon Maloney is the former Director of Fisheries for Sipekne’katik First Nation, a position he held for six years. He now sits on the Band’s newly elected council. In an interview with the Halifax Examiner, Maloney says while he was heading up fisheries, he was involved in writing the 2019-2020 Rights Implementation and Fishery Management Plan, which is, according to the plan, a “working document prepared to assist the Sipekne’katik community, Band Council and Fisheries Department in the development and implementation of livelihood fishing activities for Sipekne’katik community members.”

Maloney says the plan was “made from the ground up… from questions and consultation with the community…from the bottom-up instead of the top-down,” he says. “It’s the people’s plan.”

Last week, Chief Sack issued a statement confirming the Sipekne’katik moderate livelihood fishery in LFA 34 landed 100,000 pounds of lobster over a two-month period using a total of 500 traps. As previously reported, compared to the nearly 980 commercial and communal commercial licences allowed in Lobster Fishing Area (LFA) 34 — each with between 375 and 400 traps totalling as many as 392,000 traps — Sipekne’katik’s moderate livelihood share represents a fraction of a percent of what’s commercially fished there for six months every year.

But Maloney says the fishery launched on September 17 was only the beginning, or what he called “Phase 1 of a three-phase approach,” which he says “involved a lot of data collection.”

“Phase 2 will most likely be earlier in the summer [of 2021] when we’ll try a whole expanded livelihood fishery.”

The management plan states that the “objectives” of the livelihood fishery include conserving the resource, alleviating family poverty, and providing stable and effective employment and income for community members, where effective employment is defined as “employment that will provide income levels sufficient to meet the moderate needs of fishers and their families” and effective income “may be derived from multiple activities to which fishery incomes form part.”

According to the plan rules around livelihood fishing are established by the Band Council and only the appointed “Band Compliance Officers” would be able to “interfere with or molest Mi’kmaq” engaged in fishing. However, it also stipulates that the Band Council “may enter into a formal arrangement with appropriate private sector companies or federal/ provincial government departments to provide compliance control (enforcement) services related to the [plan].”

The plan lays out guidelines for access to the lobster fishery, eligibility requirements, harvest regulations, and limits and seasons. It states that a Fisheries Committee would determine the number of livelihood traps permitted by individual fishers “based on the best available scientific and economic information, and the specific circumstances in the fishing area.” It also specifies that those holding the licence — “allocation holders” — have to be on the boat while fishing is taking place.

The plan also sets rules prohibiting the retention of berried lobsters (females carrying eggs), a conservation measure currently practiced by the commercial fishery.

There is also a stipulation about molting lobsters:

Retention of molting (soft-shelled) lobsters is prohibited. Areas where molting lobsters have been observed must be reported to the Fisheries Director.

I ask Maloney about this, particularly because fishing during the lobster molt in St. Mary’s Bay was one of the bones of contention raised by the non-Indigenous commercial fishers there. They argued that because it wasn’t possible to safely release soft-shelled lobsters without killing them, it was causing damage to the molt and breeding stock. Others spoke of how each trap set in the summer was equal to at least 10 traps set during the official season because lobsters are hungry when molting, and more easily attracted to the bait.

But Maloney says that when they launched the plan on September 17, it was starting to get colder, and the lobsters were already getting harder. He says that “once you get into September, there’s not as much molting on the lobsters.” Maloney says the band will “look at what areas are really high molting or going through that, based on the quality of them and move forward from there.” He says the three-month fishing period ending on December 17 is also intended to gather data to help determine what a livelihood fishery would be.

It was left unclear if or how the self-imposed regulation regarding the prohibition against keeping molting lobsters will be applied in an expanded summer fishery in 2021.

Maloney says that Sipekne’katik livelihood fishery regulations are comparable to DFO’s, if not better.

“We really went over DFOs regulations and made sure that we were up to par, or even more. So we do a lot more, we do more than what DFO regulations do… we’re trying to do that little extra to say, ‘we’re here to protect this species. We’re harvesting, but we will conserve it, and preserve it more likely.”

The plan also lists all the LFAs in the region and the commercial fishing seasons that accompany them. It states the band “will operate in all the areas” but that “the dates of non-native commercial fishing seasons are provided for information purposes only.” Maloney says information on commercial seasons might “be a factor in our decisions.”

My main goal was to be able to produce this document, produce the licence, and to self-govern, and for it to be accepted. By DFO not seizing our traps or arresting us, [means] they accept it. We didn’t expect for the commercial [fishers] to throw a hissy fit at us, but we’re still on board and on par with the plan.

At the recent press conference, Sipekne’katik Chief Mike Sack told reporters that one of the sticking points in the negotiations with DFO was that Mi’kmaq want to issue their own moderate livelihood licences, but the federal department seems unwilling to abandon that role.

Maloney says the way it works with the FSC [Food, Social, and Ceremonial] fishery is that Bands issue their own licences — as director of fisheries, he ordered the tags for the lobster traps and issued them to band members. In turn, the DFO would “mirror” everything, he explains. “They take our [FSC] management plan and they write a licence that’s exactly like it… they mirror the colour of our tags and the markings into their document.”

“So, they recognize and accept the FSC fishery?” I ask. “Yes, but it’s like they don’t want to,” Maloney says. “They’re not recognizing Section 35 and our right to self-govern,” he adds. “Once they recognize that, then I think they might be more accepting of our plans.”

Maloney is referring here to the 1982 Constitution Act, in which Canada recognizes that Indigenous people have an inherent right of self-government.

Which brings us right back to the Marshall decision.

The DFO implementation of Marshall was not Marshall

Chris Milley is an adjunct professor in the Marine Affairs Program at Dalhousie University and president of Nexus Coastal Resource Management, a marine affairs consulting company based in Halifax. His firm has worked with First Nations communities throughout Atlantic Canada to design and negotiate Food, Social, and Ceremonial (FSC) Fisheries management plans and he’s also involved in helping Bands develop management plans for their moderate livelihood fisheries. Milley was also formerly the executive director of the Mi’kmaq Fish and Wildlife Commission, and collaborated with non-Indigenous fisher groups on community-based co-management initiatives.

Some of these early efforts between Indigenous and non-Indigenous fisher groups to collaborate and partner were discussed in this recent full-length Q&A with Arthur Bull, who is currently an advisor to the World Forum of Fisher Peoples. Over the years, Bull has been a stalwart advocate of the independent inshore fishery and its vital connection to the fabric that holds coastal communities together. He has also participated in a number of major, multi-year initiatives that were based on collaborations with Indigenous communities.

Milley reached out to “commend” the Halifax Examiner after reading its interview with Bull. In an email exchange, Milley contrasts the current conflict in Saulnierville with the “peaceful resolution” of the “Yarmouth Blockade” of 1999 “through the quiet coming together of reasonable people seeking to continue the collaboration that was the foundation of the history of Nova Scotia.” Milley says it was an approach “regrettably” not followed in New Brunswick, where, “the ensuing hostilities still invoke fear. No one wanted a repeat of those events.”

Milley says the method taken by the DFO in 1999 to implement the Marshall decision “led us to this current state of conflict.”

[The DFO] did not take the opportunity to establish an approach to the reconciliation of Mi’kmaq rights to the fishery. Instead, they sought to bring the rights-based fishery into the existing management system. This did not promote reconciliation nor decolonization (the recognition of Indigenous governance systems in parallel with the Government of Canada systems). It has led us to this current state of conflict.

Chris Milley

As was reported here, after the Marshall decision, the federal government — through a number of initiatives and programs including the Marshall Response Initiative, the Allocation Transfer Program, the At-Sea Mentoring Initiative, and the Atlantic Integrated Commercial Fisheries Initiative — spent a total of $545 million in the Maritimes, including $147 million in Nova Scotia, for training/ mentoring programs and transferring commercial fisheries access including licences and boats from non-Indigenous commercial licence holders to First Nations.

Essentially, the DFO responded to the Supreme Court decision by providing individual bands with commercial access to various fisheries, including lobster, through what are called “communal commercial” licences, which are governed by the Aboriginal Communal Fishing Licences Regulations, and are bound by similar regulatory requirements that all commercial fishing licences must follow such as conservation measures, gear marking, and reporting requirements. However, the communal commercial licences are not bound by the owner-operator and fleet-separation regulations — which arguably are key in maintaining the independence of the commercial inshore lobster fishery.

Eleven of the 13 Mi’kmaq bands in Nova Scotia signed agreements with the DFO for commercial access to the fisheries and were given communal commercial licences. For instance, according to DFO, Sipekne’katik First Nation currently holds a total of 37 communal commercial licences, including 14 for lobster.

“Mosaic” of programs have mixed reviews

In a 2007 paper titled “After Marshall: Implementation of Aboriginal Fishing Rights in Atlantic Canada,” Chris Milley and co-author Melanie Wiber outline the three landmark Supreme Court decisions that “substantiated the Mi’kmaq view of their treaty and aboriginal rights to the fishery”: The 1986 Simon decision resulted in the government’s recognition of peace and friendship treaties without the surrender of land rights; the 1993 Sparrow decision recognized aboriginal rights to hunt and fish for food, social, and ceremonial (FSC) purposes; and the 1999 Marshall decision affirmed the rights of the Mi’kmaq, Maliseet, and Peskotomuhkati people, to hunt, fish and gather in pursuit of a “moderate livelihood” from the resources of the land and waters.

Two months after the decision, the Supreme Court issued a clarification, known as Marshall 2, in response to an appeal of the decision by a coalition of non-Indigenous fishing interests. According to Milley and Wiber, Marshall 2, “clearly stated that the Federal Minister of Fisheries has overall management authority and that the right to a livelihood fishery had limitations (namely conservation and good governance). The clarification did not state how this authority should be exercised.”

According to Milley and Wiber, after Marshall there was “an overall Government objective underlying the DFO program” to maintain DFO authority over the fishery and apply federal rules and regulations to it. “This was despite the fact that the Marshall case dealt with a situation where Donald Marshall Jr. had been fishing outside these rules and regulations and had been found by the Court to be within his treaty right in doing so.”

In other words, what was offered to the Bands, and in most cases taken, was commercial access that was bound by most federal fishery regulations, including trap limits and seasons.

Milley and Wiber argue that in implementing the Marshall decision, the government ignored the validity of the Mi’kmaq resource management concept of Netukulimk, which differs from western economic resource management models because benefits are intended for the community as a whole, “not just for the well-being of the individual harvester (or corporation).”

“The system [of Netukulimk] is not based on the premise of ownership, but of relationship and responsibility. If nature does well, then the community does well. If the community does well, then the individuals do well. In the past, the community moved as a whole, worked as a whole and benefited as a whole,” the authors write. 1

Instead, the government response to Marshall was to “limit” efforts by the Mi’kmaq to self-manage the fisheries, and to “create instead a greater dependence on mainstream Canadian management systems and the prevailing economic objectives defined for the fishery.”

Essentially what the DFO did was impose its own neoliberal worldview on the notion of moderate livelihood fisheries — where the prevailing economic objectives had been to erase the small-scale fishery with the aim of vertical integration and corporatization, and to concentrate the fishery into the hands of a few.

The inshore, independent, lobster fishery is still the exception here, but many are wondering for how much longer this will be the case.

According to Milley and Wiber, the impact of the transfer of communal commercial licences to Bands has had both positive and negative impacts, and it also had different results in different First Nations communities. For instance, because the DFO has “specifically designed and driven the programming to be consistent with non-native fishing…Native communities have not been able to maintain aboriginal values in the harvesting of fish, nor in the distribution of benefits.”

“Some argue that there has been an assimilation of First Nations into the federal fishery top-down management structure, with little aboriginal voice in policy planning,” they write.

Wiber and Milley argue the resulting political and economic contact between First Nations and non-Indigenous communities have been beneficial and that “native communities are shifting the DFO position on numerous issues, which rebounds to the benefit of other fishing communities in the Maritimes.”

But not all agree. Milley and Wiber:

Some go so far as to argue that there has been a steady assimilation of mainstream values on the part of the Mi’kmaq communities who have become involved in the commercial fishery, and a concomitant abandonment of traditional community-oriented decision-making and approaches to resource management. This view can most often be found in First Nation communities that have chosen to remain outside the government programs that provide financial support for First Nation integration into the commercial fishery.

Milley and Wiber say that the “mosaic” of programs, negotiations and cooperative agreements that emerged post Marshall “have collectively both advanced Mi’kmaq community control and eroded Mi’kmaq priorities relating to their resource harvesting activities.”

A fishery characterized by conflict

Milley and Wiber observed that the fishery in Atlantic Canada in 1999, at the time of the Marshall decision, was one that was characterized by “conflict between inshore small-boat fishers, industrial-scale fishing companies, and government managers.”

The inshore fishers are primarily concerned with sustainable livelihoods while the corporate sector has been more concerned with sustainable profits…Many inshore fishers live in the same communities (and often homes) that their ancestors occupied, and fish the same waters. Communities that have been dependent on the fishery for hundreds of years, now face a context where their political clout has been severely undercut by conditions of rapid urbanization and industrialization. Despite highly public protests, it has been difficult for inshore fishers to raise public awareness about the problems facing their industry, especially the fact that government policies are undermining their ability to survive. They now fear their livelihood is destined to disappear as a direct result of decisions taken by the Minister under narrow policies of economic efficiency and privatization. They see the destruction of the various important commercial stocks that communities rely on as indication that the government has failed their conservation mandate.

Milley and Wiber are referring here to the collapse of the groundfish stocks, an event that unravelled the fabric of rural life in Atlantic Canada, throwing 40,000 people out of work.

Apart from the social and cultural upheaval, it marked a shift in the structure of the ocean ecosystem that was nothing short of an ecological catastrophe. It wasn’t just Atlantic cod that were decimated, almost all groundfish with any commercial value were brought to the brink of biological extinction: haddock and pollock, Atlantic halibut, turbot, American plaice, and yellowtail flounder. Thorny skate, cusk, grenadiers, silver hake, white hake, wolfish, redfish, lumpfish, and monkfish all suffered. Fish species were ravaged by industrial fishing, and we’re still trying to understand the fallout.

Today there is almost unanimous agreement that overfishing, combined with short-term economic thinking, faulty assumptions, and government mismanagement were all to blame for the collapse and while there are many lessons to be learned from the tragedy, this is surely among them: the regulatory and management systems in place to ensure that cod and groundfish fisheries were sustainable, failed miserably.

In the years following the collapse, the DFO reduced fishing capacity and cut fishing quotas and for many the allocations were not enough to operate economically. In 1998, the year before the Marshall decision, demonstrations erupted and DFO offices around the province were occupied. By the summer of that year three fishers from southwest Nova Scotia chained themselves to the flagpole on the lawn of the Nova Scotia legislature and pitched a tent with the words “we need fish” on the side. The “flagpole four” argued the push to privatize what was left of the groundfishery was squeezing out the small-scale fishers, and that they didn’t have enough quota to feed their families. Later that same year, one of the men, Scott Nickerson, committed suicide by shooting himself in the chest with a rifle.

Fast forward two decades, and for those inshore fishers who are still fishing, lobster is the single most important marine fishery they have left. A staggering and simultaneously worrying factoid is how acutely dependent Atlantic Canada’s small, coastal fishing communities have become on the invertebrate. In 2017 it was reported that lobsters account for 83% of the landed value of all fisheries combined in Prince Edward Island, 64% in New Brunswick, and 54% in Nova Scotia.

Total landings by Lobster Fishing Area. Graphic: NOAA

A tangle of rights

In an interview with the Examiner, Arthur Bull says the Treaty rights affirmed by the Marshall decision presented a problem to DFO because the regulatory agency was committed to what he called “the property rights approach,” and simply gave property rights (licences, quotas, etc.) to the bands.

“Many people thought they were implementing the Treaty rights, but others, like Bear River First Nation (BRFN) under the leadership of former Chief, Dr. Sherry Pictou, had an analysis that this was property-based, not treaty-based. They have since been vindicated.” Bull says that when he facilitated a group of fishers and community members at BRFN to put together a community-based fishing plan, one participant, an elder, put it this way: “if we put our treaty rights in that box, sooner or later somebody is going to come along and sell it.”

Bull has been involved as an advocate for small-scale, independent fisheries in one way or another for decades. He says his “theory” is that DFO was not able to deal with the right to a moderate livelihood fishery, “which is more akin to the human rights approach, because they were so locked into the property rights approach,” which is an approach that better suits the large industrial players.

Bull says that in the lobster fishery, the offshore sector — Clearwater Seafoods — “doesn’t have any social objectives, whereas the inshore fishery, including Mi’kmaq moderate livelihood fisheries, is “place-based, attached to villages and wharves, embedded in a social context, and with independent family-owned enterprises.”

Economically speaking the difference is that corporate fisheries have the same primary objective of all corporations: to maximize profits. They may be more or less socially and environmentally responsible and have good labour practices, but those are secondary to its main objective. On the other hand, the inshore small-scale fishery’s only economic objective is about livelihood: the economic benefits go into households, and are not sent to stockholders or owners. That doesn’t mean there should not be corporate fisheries, but it does mean that if corporate fisheries are allowed to take over the inshore it will cause widespread harm and dislocation to coastal communities.

Bull points to the recent news of the billion-dollar purchase of Clearwater Seafoods by Premium Brands Holdings Corporation and a coalition of Mi’kmaq First Nations, where Mi’kmaq will hold Clearwater’s Canadian offshore lobster fishing licences. 2

“Mi’kmaw ownership of Clearwater is not based on a Treaty right but actually based on property rights,” says Bull. Furthermore, “Clearwater’s ‘ownership’ of LFA 41 is a prime example of Canadian ‘ocean grabbing’—the privatization of part of the ocean — which is commonly held by the Canadian public under the Fisheries Act.”

Bull says the different kinds of rights — Treaty rights, human rights, property rights — “seem very tangled up together in the current fisheries.”

As the Examiner reported here, Sipekne’katik Band is also part of the coalition that purchased Clearwater, and when asked at a recent news conference if Clearwater would become the buyer for its moderate livelihood-caught lobsters, Chief Sack replied that the Clearwater purchase and exercising the Treaty right were “two separate things.” Sack said the band was planning to establish its own buying and selling licence and “establish our own brand that way.”

While it’s true that they appear to be very separate things, it’s still hard not to worry.

The managed obliteration of fish stocks, corporate concentration of access, and the sad demise of small-scale fishers all happened under DFO’s watch. As we’ve seen, the Marshall decision was also met with an attempt by DFO to steer Mi’kmaq Treaty rights in a particular direction — away from the concept of Netukulimk and its wholistic understanding of relationship and responsibility and towards the premise of property rights, corporate concentration, and unlimited profit.

For the sake of the Mi’kmaq, the small inshore fishing communities, and the lobster stocks, let’s just hope that this time around the real Marshall decision finally gets implemented.

Notes:

  1. According to Milley and Wiber: “[Mi’kmaq] oral history demonstrates that they relied on a system of spiritualism in their resource use called Netukulimk in the Mi’kmaq language. Netukulimk is a traditional worldview in which all things are part of a web of connected living and non-living things, and, when respectfully utilized, provides for the benefit of the community as a whole. It is an understanding based on a ‘whole system’ and not a reduction of the ecosystem to discrete components. Furthermore, the Netukulimk world-view is based on the premise that man does not ‘own’ nature, but is part of it, which is considerably different from modern western concepts of Humankind being apart and hence proprietor of nature’s resources. Prior to the Marshall decision the application of Netukulimk in Mi’kmaq society was evident through well-articulated concepts of the sacredness of the fishery as a source of food, and the need to prevent greed from undermining human responsibilities in this sacred relationship.”

  2. According to the Maritimes Region Commercial Fisheries policy, midshore and offshore fishing licences must be issued to Canadian citizens, permanent residents, or a company incorporated under Canadian law with at least 51% Canadian ownership.

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