A Mi’kmaw lawyer from the community at the center of a violent backlash over a self-managed lobster fishery says she’s “very optimistic” about a new Senate report calling for full implementation of indigenous fishing rights. “I was pleasantly surprised, to be honest,” said Rosalie Francis, a member of the Sipekne’katik First Nation in Nova Scotia. But in other parts of the province, the surprise was considerably less pleasant. There are concerns that the report, titled “Peace on the Water,” is instead provoking anger in communities where lobster is a livelihood. Sipekne’katik began a self-regulated fishery in 2020 in the waters of St. Mary. It’s part of Lobster Fishing Area 34 — or LFA 34 — a stretch of coast that’s home to one of the most lucrative fisheries in the country, where about a fifth of all Canadian lobster is hauled in each year. But this prosperity did not always include indigenous peoples. When Sipekne’katik set traps with their own tags months before the start of the 2020 fishing season, there was at times violent backlash from the local community. A pound of lobster was deliberately burned and the protesters formed an angry mob. In response, Fisheries and Oceans Canada has stepped up water and dock enforcement. Francis said he let people “go to the water and exercise their right as criminals.” The issue boils down to the federal government’s interpretation of the Supreme Court of Canada’s 1999 Marshall Decision, which said the 1760-61 treaties ensure the Mi’kmaq, Wolastoqiyik and Peskotomuhkati have the right to fish for what it called moderate live it Canada interpreted that to mean Indigenous people should have a share of the commercial fishery and negotiated that access. It has given $550 million to Indigenous communities in recent years to increase participation, and Fisheries and Oceans reports that Indigenous landings in 2018 were estimated at $140 million. But legal experts dispute the idea that the court only wanted to allow entry into unilaterally regulated fisheries. Constance MacIntosh, a law professor at Dalhousie University, said the decision recognizes more than a treaty-protected right to fish. “Other case law in the Supreme Court of Canada has found that when aboriginal people have these rights, they have rights to govern,” he said. “Thus, the power to decide how that right is to be exercised by their own people.” Dan Christmas is on the Senate fisheries committee and was the first Mi’kmaw appointed to the upper chamber. The permanent solution is to codify the Marshall decision into Canadian law, he said. “It would be a specific tool that would allow rights-based fishing to be implemented on its own, not integrated into the existing commercial fishing structure, because they are not compatible.” Some communities, such as the Listuguj First Nation on the Gaspe Peninsula, have signed rights and reconciliation agreements that define fisheries management. For Listuguj leader Darcy Gray, the next step is for Canada to recognize this right to self-government. “We’re not necessarily able to go out (fishing) whenever we want and how we want,” Gray said. “It’s part of that conversation.” Representatives of the commercial fishing industry say they are disappointed they were not invited to speak to the Senate as it drafted the report on indigenous rights. It’s “adding fuel to the fire” in an area where tensions have remained high since 2020, said Colin Sproul, president of the Unified Fisheries Conservation Alliance, which has about 1,900 members. Sproul wants to see the creation of a “fishery treaty” that will be exclusive to natives and also regulated “in a strict manner.” “I can’t think of a worse action the federal government could take than to follow the senators’ patently stupid recommendations to expropriate fishing access from Atlantic Canadians,” he said. “This is based on a warped sense of reality that the fishing communities of Atlantic Canada are responsible for the horrors of colonialism.” Gray said reconciliation requires adjustment by everyone. “You have to look at the historical context where we did this to survive for thousands of years and then we were systematically excluded,” he said. “It’s become illegal to take care of ourselves and that’s wrong.” Fisheries Minister Joyce Murray was not made available for an interview. In a statement, her office said it was reviewing the report. “We are not naive in this,” said Christ. “We know it’s a controversial issue and we know there will be some who don’t want any change.” The Senate calls for Fisheries and Crown-Indigenous Relations to be set aside to lead the negotiations. “I’d like to think the temperature has dropped quite a bit over the last couple of years,” said Jaime Battiste, parliamentary secretary to the minister for Crown-Indigenous Relations. While he believes the report could “take steps in the right direction,” Batiste said he no longer speaks only from the perspective of a Mi’kmaw lawmaker in evaluating his government’s action. “Have we done enough? Could we do more? That’s a good question,” he said. “I think we’re moving at the pace of our stakeholders.” Frances said she hopes the federal government will move quickly. “For Canada to ignore it is to ignore itself.” This report by The Canadian Press was first published on July 19, 2022.
