Violence and intimidation are reaping havoc in the usually sleepy southwest corner of Nova Scotia, Canada.

Last fall an angry mob of over 200 commercial fishermen encircled a lobster pound, a facility, which was rented to both Mi’kmaw and commercial fishermen to store their lobster catches. At the time, only Sipekne’katik (one of the thirteen separate band’s of Mi’kmaw in Nova Scotia) fishermen were present at the facility.

The doors were hammered on; the mob threw rocks at the building and screamed obscenities, causing the Sipekne’katik fisherman to barricade themselves inside the cold storage, fearing for their lives.

Jason Marr, a Mi’kmaw fisherman at the facility, told the New York Times that the RCMP (Royal Canadian Mounted Police) took 90 minutes to arrive, and when they did, they told him there was nothing that they could do. What unfolds is the stark image of the RCMP standing idly by as the mob vandalized the property.

The mob left the parking lot, leaving the remnants of a battleground in their wake: a sunken boat, the burnt-out shell of a van, and 3,000 pounds of legally caught dead lobster strewn about, starting to go rancid. A smell that resembles spoiled cottage cheese.

“I am terrified,” Michelle Nevil, mother of a Mi’kmaw fisherman said, “They are shooting flares at us on the sea, tossing out our lobster, and no one will act.”

They are shooting flares at us on the sea, tossing out our lobster, and no one will act.

Three days later, the RCMP and fire department responded to an inferno blazing at the facility that had been attacked a few days before. The fire took four hours to contain, and the facility was burned to the ground.

The same day, 170 km away in the quaint town of New Edinburgh, a Mi’kmaw’s van of another band was incinerated. A local non-indigenous man was charged with arson.

“There were both non-indigenous and Sipekne’katik lobsters stored at the pound they burned down,” says Megan Bailey an Associate Professor at Dalhousie University and Research Chair of Integrated Ocean and Coastal Governance. “Many lobsters in there were frozen from the prior commercial harvest. So, they ended up burning down a pound that serviced their own interests.”

The Mi’kmaw, consisting of several different bands (reserves) such as the Sipekne’katik and Bear River, have been fishing in and around Nova Scotia for thousands of years, and their rights to keep fishing have been constitutionally protected since 1752. In 1999, the Supreme Court of Canada introduced the Marshall response initiative, a treaty that allows the Mi’kmaw to fish, hunt and gather for a ‘moderate livelihood.’

This means that they have different fishing rights than non-indigenous fishermen. Important to the violence last fall, this ruling means they can fish for lobster outside of the lobster season (November to May). The Department of Fisheries and Oceans (DFO), however, can regulate the Mi’kmaw, if they determine that a conservation issue has arisen.

‘MODERATE LIVELIHOOD’

Murray Judge, a retired lawyer and former commercial fishermen said there’s an elephant in the room.

“The government never clearly defined what a ‘moderate’ livelihood is,” he says, “The tribes are allowed to fish anywhere in the province and commercial fishermen believe they are being taken for a ride.”

The tribes are allowed to fish anywhere in the province and commercial fishermen believe they are being taken for a ride.

The origins of this go back to 1752’s Peace and Fisherman Treaty, which states that the Mi’kmaw are allowed to fish and hunt in their lands. But for 250 years this treaty, as well as others, was overlooked until the Marshall decision was implemented in 1999.

Mi'kmaw flag flies over lobster traps

A Mi’Kmaw flag flies over lobster traps in Saulnierville Nova Scotia. Photo credit Jennifer Modigliani

The court stated that a moderate livelihood is a livelihood that provides for necessities such as shelter and food, but not for the accumulation of wealth. These discrepancies were never addressed in regulations, meaning it has been an undefined grey area for decades.

Non-indigenous commercial fishermen consider these extra rights discriminatory, and want this out-of-season fishery shut down, citing conservation issues. Bernie Berry, chair of Coldwater Lobster Association in Nova Scotia, says there should be only one set of rules, one season, and no group should get more rights than another.

“When commercial fishermen stand up and say, we have to have one rule for all, one system for all; this is just simply not true,” says Chris Milley, a Professor in the Marine Affairs Program at Dalhousie University.

Atlantic Tuna fisheries are managed by multiple nations at the same time, Milley explains. Each nation utilizes different management tools for its component of a particular fishery. Canada and Japan, for example, can be fishing for the same species in the same waters, but their management tools, rules, and regulations are going to be different. The only stipulation is different nations’ fisheries management schemes have to be consistent and compatible with one another, and they cannot be contradictory.

“This is not a fisheries issue; this is a rights issue,” says Milley. “The UN declaration of the rights of indigenous peoples pertains to the Mi’kmaw in allowing them managing their own fisheries just as a separate nation”

This is not a fisheries issue; this is a rights issue.

Mike Sack, the chief of Sipekne’katik band, feels like they are being assaulted with impunity, while only exercising their legal rights to fish. He has asked the federal government to send the army to protect his band and is imploring the RCMP to arrest some of the non-indigenous fishermen associated with the violence in the fall. Twenty-three people now face charges for both mischief and breaking and entering; all are expected in court on March 29th of 2021.

MURKY RIGHTS

To no fault of the Mi’kmaw’s, the thirteen different bands have had to decide for themselves what a moderate livelihood is, differing for each. The Sipekne’katik First Nation, within their rights, issued 5 licenses to fish outside of season.

Sipekne’katik’s reserve is landlocked and located north of the Halifax airport, about 277 km away from Saint Mary’s Bay in the southwest of the province. In September 2020, the Sipekne’katik launched a moderate livelihood fishery out of the town of Lower Salnierville in Saint Mary’s Bay outside of the commercial fishing season. They sent out 5 boats with 500 traps, equal to that of two commercial boats.

When the water is warmer in June to October lobster moult, which is the lobster giving up their hard shell for a period of time, causing them to have delicate soft shells.

“Lobsters and a lot of marine animals moult,” says Hal Whitehead of the Department of Biology at Dalhousie University. “It is the animal shedding its shell, in order for the animal to grow larger; they do it in the summer months. This makes them vulnerable because they have less armour to protect themselves from various events.”

The mortality rate of these lobster is high; if they are piled in a large load of lobsters, it can be possibly fatal. Throwing lobsters back in this tender state decreases their chance of survival. For example, it is illegal to keep an egg-bearing female. The act of throwing this animal back can kill her and 8,000 to 100,000 eggs she may be carrying (depending on her size).

Commercial fishermen in Saint Mary’s Bay state that by trapping early, the Mi’kmaw are undermining conservation. A drop in lobsters, they argue, robs them of their livelihoods.

Bailey disagrees. She states that when one considers the hundreds of thousands of traps that go in during the regulated season, the 500 traps going in from June to October will have no impact and not even dent the stock as a whole. This is not a conservation issue, she argues.

While she thinks that racism is at play in this dispute, it is not at the center of the issue. There is a lot of investment that goes into being a commercial fisherman. They need a boat, gear, and then there’s maintenance; a lot of these people are in debt. Many of them want their children to be fishermen as well.

“So, when someone comes in and disrupts your image of your family’s future and your vision of a long-term productive fishery after you have invested so much of your life and money into it,” says Bailey, “That is very worrying.”

The Sipekne’katik fishing early is not the only reason that the commercial fishermen are upset. For the last 10 years, there have been social/ceremonial fishing licenses operating in Saint Mary’s Bay by the Mi’kmaw in the summer. The lobster trapping is only for personal consumption, not for sale. However, some lobsters have been illegally sold on the black market. This has fostered a lot of mistrust and anger at the Mi’kmaw from the commercial fisherman.

“That pisses off commercial fisherman, and it should,” says Bailey. “But for some of the Mi’kmaw, I understand that this is a way of making a livelihood when there haven’t been other paths available.”

That pisses off commercial fisherman, and it should.

This anger may be misplaced, considering Canadian seafood giant Clearwater “was convicted of a gross violation of fisheries regulations” in 2017 with having 3,800 illegal traps 80 km away from Saint Mary’s Bay.

Megan Bailey clarifies that to make a livelihood one needs to catch lobster, but then one needs to also sell it. The current provincial regulations that make it illegal to sell it out of the commercial season are a problem. The formation of a black market outside of the season is a predictable outcome, and only through supporting legal means of sale, will the black market be dismantled.

Milley says that while some of the illegal traps were Mi’kmaw, what has not been reported is that many of the traps seized by the DFO were lobster traps of commercial fishermen.

“The problem for the Mi’kmaw in this situation is they have one finger to point,” says Milley. “And then there are two fingers pointing back at them, and those fingers belong to DFO and the commercial fishermen. The commercial fishermen had illegal traps down as well.”

The commercial fishermen had illegal traps down as well.

While the current dispute is directly between the Sipekne’katik and the non-indigenous fishermen, the Mi’kmaw band known as Bear River First Nation were involuntarily brought into the conflict. Bear River First Nation is the closest Mi’kmaw band to Saint Mary’s Bay. It has been directly affected by the clash because it is in their jurisdiction.

Chief of Bear River, Carol Dee Potter, explains in a letter that they have been on the unrest’s frontlines following the 1999 Marshall decision. They have been working diligently for two decades to repair their relationships with non-indigenous fishermen and the communities on the Bay’s windswept rocky shores. This work has been impaired by the Sipekne’katik that came to trap temporarily, only to leave their long-earned relationships in shambles.

“Mi’kmaw bands need to coordinate and work together because they are also stepping on one another’s toes,” says Bailey. “But, at the same time, these acts of violence are the real issue. They are outrageous and should not be tolerated by any society.”

TOWARDS DECOLONIZATION?

The Canadian public has condemned the violence, asking for Prime Minister Justin Trudeau’s government to address the systemic racism that he campaigned on years ago, with his party’s reconciliation initiative.

Milley doesn’t believe reconciliation alone will work for the Mi’kmaw because the Mi’kmaw, like many indigenous groups in Canada, do not operate in the same way as a capitalist society.

“Reconciliation is a kinder and gentler colonization,” says Milley. “What reconciliation is, is Canada saying; we’re sorry, we recognize you have rights. Therefore, we are going to recognize those rights by including you in how we run our businesses and you have to adhere to our rules.”

Reconciliation is a kinder and gentler colonization.

“Decolonization is recognition of the indigenous system, and allowing it to work in parallel with the western colonial system,” says Milley. “We are trying to propose that the Mi’kmaw management and the government of Canada fisheries systems can work in parallel without compromising either. It’s the Mi’kmaw’s right to manage their own fisheries; this comes directly from the UN declaration.”

First Nation activists say responses to this conflict have been disgracefully slow from both the RCMP and the Federal government, but public outcry is changing the tide. Meetings are scheduled to be held with the Mi’kmaw, the Maritime Fishermen’s Union and the Nova Scotia government in the coming months.

Canada and the Mi’kmaw are working to advance decolonization processes. However, this is bigger than just fisheries. Bill C15 has been introduced in the House of Commons. This is an Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. If passed, there will be more effective legal processes to include indigenous governance systems into the management and development of resources. This includes environmental management and education, which is another way of looking at and implementing human resource management.

Milley explains that the Mi’kmaw bands are in negotiation with both Federal and Provincial governments regarding clarifying the meaning of a moderate livelihood in reference to fishing; this will probably be a long process since there will likely be Provincial elections and possible snap Federal elections this year. Elections tend to slow down the process of resolving the issues important to indigenous nations.

Whitehead is less optimistic. He says that the Federal and Provincial bureaucrats have been trying to resolve these issues for a very long time. “Will they succeed this time? I’m skeptical.”