The fiery clash over Mi’kmaq treaty fishing rights
Indian Country Today
In the summer of 1993, a Mi’kmaq fisherman by the name of Donald Marshall Jr. navigated into the waters of Cape Breton, in the eastern part of the Canadian province of Nova Scotia. During his outing, he managed to catch approximately 460 pounds of eels that he sold for about $787.
Because he was fishing out of season according to local laws, authorities arrested Marshall for fishing and then selling eels without a license, and for fishing off-season with illegal nets.
Asserting his sovereign right to fish as a Mi’kmaq citizen, which was protected under the “peace and friendship treaties (the first of which was signed in 1726), Marshall fought his case, which went all the way to the Supreme Court of Canada. Marshall won the case in 1999, with the court ruling he had a treaty right to fish for a “moderate livelihood.”
A moderate livelihood: Aye, there’s the rub
The Supreme Court of Canada’s decision to use the term “moderate livelihood” — a term taken directly from the peace and friendship treaties — has been a source of contention and heated arguments between Indigenous and non-Indigenous fishermen in Nova Scotia and tribal territories for generations.
In September, the Sipekne'katik First Nation — one of 13 First Nations communities in Nova Scotia, and the second-largest Mi’kmaq band — launched what it deemed a moderate livelihood lobster fishery along the Nova Scotia coastline.
Though the fisherman used approximately 250 lobster traps — considered a small number by experts — the move by the tribe was met with outrage by non-Indigenous fishermen, who cut trap lines, removed traps from the water and attempted to block Sipekne'katik First Nation boats from entering fishing areas.
On Oct. 17, a lobster processing facility that is largely used by Mi’kmaq fisherman was set fire — a move Canadian authorities labeled as suspicious.
Jonathan LaBlanc of the Eel Brook Fire Department told Global News that a number of local fire departments were called to the scene at about midnight and that it took approximately four hours to contain the fire. Another facility as well as a fishing boat was also set on fire.
Several accounts of the fires were posted to social media. One user, Pierrette dEntremont wrote: “This has gone TOO far.”
Sipekne'katik Chief Mike Sack wrote in a statement on the tribe’s website: “It is so disheartening to have had a progressive meeting with the Minister yesterday to reinforce that we are following our moderate livelihood fishery plan and to be repeatedly sabotaged by this criminal conduct.”
Shelley Denny, a Mi’kmaw doctoral candidate in the Interdisciplinary Program at Dalhousie University, wrote in the Chronicle Herald, that she was “disheartened at the violence directed at the Mi’kmaw people as they exercise their Aboriginal rights as well as treaty rights to a moderate livelihood.”
“The Mi’kmaq most likely will not follow all existing commercial fishing rules and will create ones that reflect cultural values and practices. This is a tough pill for the lobster industry to swallow. But this does not have to be considered a negative attribute,” Denny wrote.
'Terrorism' acts against Indigenous people
Lynn Gehl, PhD, is an Algonquin Anishinaabe-kwe from the Ottawa River Valley who has worked in the environmental science field for over 12 years. Gehl says the environmental impact of 250 lobster traps is negligible when compared to commercial fishing companies that put out thousands of traps each year.
“I'm an Indigenous person, but I'm an Algonquin, so I don't speak for the Mi’kmaq people. The issue is really unfortunate, and the first thing I would say is that the amount of lobster that the Mi’kmaq people are taking is not a conservation issue,” Gehl said. “That position has been argued already and compared to the corporations, the Mi’kmaq people are taking less than 1 percent.”
The burning of the lobster house “traumatized me as an Indigenous person,” she added. “I experienced that as terrorism.”
Gehl also cited how a larger corporation, Clearwater — which had laid tens of thousands of traps in the past — previously was cited with gross violations of fisheries regulations. Most of all, says Gehl, there needs to be an improvement in nation-to-nation relations.
“We're asking for our sovereignty to be respected, but we're also asking for Canada and settler people to understand a way of life that respects the land and the water and all the resources,” she said. “It's a philosophical and ideological struggle that we're having, and it's getting played out in these kinds of situations.”
Legal and environmental concerns
For non-Indigenous fishermen, the commercial lobster season starts in November and ends in late May in an area known as Lobster Fishing Area 34.
Since the Sipekne'katik began their operations before November, other commercial fishermen retaliated with what Gehl said was “either racial or out of jealousy.”
Commercial fishermen also say the season would affect the lobster populations as the fishing took place during molting season, where the lobster had freshly broken out of their old shells and were softer and thus, less desirable to vendors. Other arguments include that the additional harvesting would cause hardships on the lobster’s populations, which experts and the tribe have refuted.
The Sipekne’katik First Nation has responded that they have a detailed fisheries management plan that ensures conservation of the lobster stocks. They have submitted the formal plan to regulators in Ottawa.
The comparisons of commercial fisheries to the Mi’kmaq are considerable. At the most current count, there are a reported ten fishing boats by the Sipekne’katik with a total of 500 traps. In the commercial fishing sector, there are a total of about 35,000 traps in the bay.
In a Haika Magazine article written by Vanessa Minke-Martin titled, “Mi’kmaw Fishery Dispute Is Not About Conservation, Scientists Say,” Bob Steneck, a lobster biologist at the University of Maine said: “The American lobster — the same lobster in Canada and in Maine — is perhaps the only species on the planet that’s been targeted for 150 years and is, by and large, doing better today than ever before.”
He continued: “I would love to see a study that would look at coves where [the Sipekne’katik are] fishing — a before-after control-impact study. I would be willing to bet you a beer that there’d be no effect, relative to the control areas that are not fished.”
Other scientists and experts in the article voiced similar sentiments about the impact on lobsters to include Susanna Fuller, the vice president of operations and projects at Nova Scotia-based NGO Oceans North, who said, “I don’t think it is a conservation concern.”
Chief Mike Sack says in the meantime, he is undeterred by the outcry and he and his tribe will continue to persevere.
“We've had obstacles put in front of us, our whole lives. Canada trains us for that. So we'll, we'll survive, we'll get through it,” Sack said in a video posted by CTV News. “And we thank everyone for that. And I'd like to thank fellow Canadians for all the support that we have received throughout this tough time for us.”
Sharp criticisms have been drawn worldwide in the press and on social media regarding the lack of prevention of the incidents by the Royal Canadian Mounted Police.
Last Monday, members of the Canadian parliament held an emergency meeting to discuss the situation affecting Indigenous fishermen. NDP Leader Jagmeet Singh posed the question if liberals would have been as slow to act if the attacks, vandalism and more were happening against non-Indigenous peoples.
Indigenous Services Minister Marc Miller said, “Indigenous people have been let down by the police.”
Several members condemned the violence against Indigenous fisherman to include Canadian Prime Minister Justin Trudeau who stated he “strongly condemns any form of violence, harassment and intimidation towards the Mi’kmaq in Nova Scotia” and that the Mi’kmaq have the right to fish “without being subjected to threats or racism.”
Others echoed Trudeau’s remarks to include Fisheries Minister Bernadette Jordan who stated she had been meeting with Indigenous leaders and “will continue to do so “continue to do so, even once this crisis has passed,” outlining the need for relations to improve between non-Indigenous and Indigenous fishermen.
Miller and Jordan are calling for next steps to include continued discussions with Indigenous fishermen and First Nations communities and are calling on federal authorities to step up.
Trudeau also issued a statement last Monday asserting he had been speaking with Nova Scotia Premier Stephen McNeil about the violence.
“They agreed on the need for all parties to engage in respectful dialogue aimed at upholding the Marshall decision and the Mi’kmaw treaty right to fish while ensuring the conservation and sustainability of the fishery,” the statement read.
The statement also said they would welcome cooperation between Ministers Blair and Furey “to increase RCMP police presence in the area to protect the safety of all citizens.”
So far two arrests have been made in the midst of these incidents to include one man charged with assault against a First Nations chief, and another charged with arson to a burned vehicle. One man — who is currently in a hospital with life-threatening injuries — has been listed as a person of interest in the arson of the lobster compound.
Vincent Schilling, Akwesasne Mohawk, is associate editor of Indian Country Today who enjoys creating media, technology, computers, comics and movies. He is a film critic and writes the #NativeNerd column. Twitter @VinceSchilling. Email: firstname.lastname@example.org.
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