The lobster situation in Nova Scotia has been widely reported in Canadian news since the beginning of September, but what most have not been exposed to when looking at these stories is that this issue dates back to 1999. So, for the purposes of fully understanding the issue and where it has its roots, we must travel back to 1999 and unpack the R. v. Marshall case. There are two supreme court rulings in particular that deal with the issue of treaty rights as it pertains to Indigenous fishing rights, therefore a timeline of these rulings followed by the events unfolding this year would be the most productive way to dive into this deep rooted and controversial issue.
1999/09/17 R. v. Marshall
This is the first supreme court ruling that can be attributed to the situation in Nova Scotia now. Here are the facts from the case:
-
A Mi’kmaq indigenous person was charged with 3 offences in violation of the federal fishery regulations, “the selling of eels without a licence, fishing without a licence, and fishing during closed season with illegal nets.” (R. v. Marshall)
-
The accused admitted he caught and sold 463 pounds of eels without a licence.
-
The accused was convicted on all 3 counts.
-
The issue in this case was whether the accused possessed an exemption to federal fishing laws under the 1760-61 treaties.
-
The 1760-61 treaties “do not grant a general right to trade. The core of the trade clause is the obligation on the Mi’kmaq to trade only with the British” (R. v. Marshall)
-
The Mi’kmaq agreed to “forgo their trading autonomy and the general trading rights they possessed as British subjects and to abide by the treaty trade regime.” (R. v. Marshall)
-
-
Since the accused was convicted on all counts, he was found to not be in possession of an exemption to federal fishery regulations.
1999/11/17
This was the appeal to the first R. v. Marshall usually referred to as “Marshall 2”. Here are the facts from this case:
-
In the appeal “the accused was acquitted of all charges, found to possess treaty rights exempting him from compliance with regulations.” (Appeal of R. v. Marshall)
-
“In the first case the Crown had not attempted to justify either the licensing restriction or the closed season to limit the exercise of the appellant’s treaty rights.” (Appeal of R. v. Marshall)
-
In the closing statements on the case the ruling dictates that “the acquittal cannot be generalized to a declaration that licensing restrictions or closed seasons can never be imposed as part of the government’s regulation of the Mi’kmaq limited commercial “right to fish”.” (Appeal of R. v. Marshall)
-
This appeal recognized the indigenous treaty rights to fish but made it clear that they were still subject to licensing restrictions.
So, were Indigenous peoples once subject to the same fishing laws and regulations of non-indigenous peoples? Yes.
-
From 1760 until 1982 both Indigenous and local fishermen were subject to unilateral fishing regulations, in the Federal Fisheries Act.
-
However, in 1982 the Constitution Act was adopted which created different rights for indigenous and non-Indigenous fishermen. (s.35)
-
However, in 1990 the case of R. v. Sparrow, the court “affirmed that s. 35 of the Constitution Act Aboriginal and treaty rights are subject to regulation, provided such regulation is shown by the Crown to be justified on conservation or other grounds of public importance.” (Appeal of R. V. Marshall)
-
Therefore, when conservation is in question Aboriginal fishing rights are subject to be limited.
What happened after Marshall?
-
The Marshall Response Initiative
-
Fisheries and Oceans Canada (DFO) “provided First Nations communities with licences, vessels, and gear in order to increase and diversify their participation in the commercial fisheries, and contribute to the pursuit of a moderate livelihood for First Nations members.” (Fisheries and Oceans Canada)
-
Moderate livelihood was defined by the court as a living that provided for necessities but not the accumulation of wealth, however what that means was never addressed and remains unaddressed. (BBC News)
-
The amount they provided was $354 million between 2000-2007. (Fisheries and Oceans Canada)
-
The Marshall Response Initiative ended in March of 2007.
-
-
Atlantic Integrated Commercial Fisheries Initiative
-
This initiative was started in 2007 to follow MRI.
-
This initiative “provides funding and support to Marshall communities to build the capacity of their commercial communal fishing enterprises and to strengthen community economic self-sufficiency.” (Fisheries and Oceans Canada)
-
So, we have dealt with the history of the issue and gained enough background knowledge to understand why this issue is so controversial, and now we can dive into what is going on in Nova Scotia at the present moment.
Why is this an issue now?
-
In September of 2020, the Sipekne’katik launched their own self-regulated fishery.
-
This fishery gives the band the ability to grant members their own fishing rights who meet the requirements set out by the band management plan.
-
-
However, non-Indigenous fishermen say this action is illegal and are accusing the Sipekne’katik of using this as a cover up for a large commercial fishery; the Mi’kmaq reject this. (CBC News)
-
The local fishermen are making these accusations most likely because of a case in earlier 2020.
-
In January of 2020 Shen Ren Zheng was arrested and accused of illegally selling lobster caught by First Nations fishermen who were not allowed to sell their catch under the licences they held; he was convicted in August. (CBC News)
-
5,000 pounds of lobster seized originally in January.
-
The licenses the Sipekne’katik band holds allow fish to be caught “under food, social, and ceremonial issues,” (CBC News) and by regulation these catches cannot be sold.
-
After Shen Ren Zheng was convicted the local fishermen “insist the sale of lobster harvested through large scale, unregulated fishing by First Nations continues in St. Mary’s Bay while the season is closed for commercial fishermen.” (CBC News)
-
The local fishermen protested based on what they say is inaction by the federal government.
-
-
Commercial fishermen have condemned the violence associated with this issue, such as the alleged removal of traps and the burning of a fish plant, along with the escalating violence between Indigenous and non-Indigenous fishermen, but talking to BBC news Derek Thomas says “the government needs to step in and enforce off season rules for the sake of the lobster population.” (BBC News)
-
However, in an emergency MP debate held at the beginning of October Fisheries Minister Bernadette Jordan says “Conservation underpins everything we do. Lobster stocks are healthy.” And “DFO will continue to monitor stocks and they will never move forward with a plan that threatens the health of the species.” (CBC News)
-
So where is the issue now?
-
The DFO says it is currently in talks with the Sipekne’katik First Nation to come to an agreement over the fishery and a spokesperson for the DFO told BBC news that “as discussions are ongoing, no further details can be offered at this time.” (BBC News)
-
The Sipekne’katik continue to fish for lobster but they still cannot legally sell it without a DFO license.
-
As of October 31st an article published by CTV News states that “A group of Nova Scotia Indigenous leaders has levelled harassment allegations at the federal government … accusing the department responsible for fisheries of planning to seize gear from lobster trappers in the province.” (CTV News)
-
The source of the information has not been disclosed by the Mi’kmaq chiefs, and a departmental spokeswoman declined to comment on the allegations.
-
-
On October 23rd Global News reported that the federal government has appointed Allister Surette to “communicate with and rebuild trust between both sides” and is a special representative intended to facilitate discussions between indigenous and non-Indigenous fishermen. (Global News)
-
As of right now, talks continue, and a resolution will be presented in the coming weeks/months which will then be presented to the DFO and to the federal government for a final decision to be made on the issue.
All facts in this article have been checked through multiple sources and a link to every article is below for further reading. As a side note, nothing in this article is my own opinion, as that is not pertinent to the ongoing issue, everything stated is base on facts from my own research into the issue and all quotations are cited with the appropriate source. It should be noted that CBC News, BBC News, and Global News are left-center wing biased news corporations, CTV news is more center however it is owned by Globe Multimedia which is righter wing.
Bibliography:
Supreme Court Judgements: R. v. Marshall https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1739/index.do
Supreme Court Judgements: R. v. Marshall Appeal https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1740/index.do
Fisheries and Oceans Canada “Factsheet: The 1999 Supreme Court of Canada Marshall Decision.” https://www.dfo-mpo.gc.ca/publications/fisheries-peches/marshall-1999-eng.html
CBC News
“Livelihood or profit? Why an old fight over Indigenous fishing rights is heating up again in Nova Scotia.” https://www.cbc.ca/news/canada/mi-kmaw-sipekne-katik-self-regulated-fishery-nova-scotia-1.5734646 (citation 12)
“MPs hold emergency debate on N.S. lobster fishery dispute.” https://www.cbc.ca/news/politics/parliament-debate-nova-scotia-lobster-dispute-1.5768468 (citation 16)
“Lobster pound owner found guilty of illegally selling lobster.” https://www.cbc.ca/news/canada/nova-scotia/guang-da-international-sheng-ren-zheng-guilty-illegally-selling-lobster-1.5701123#:~:text=Sheng%20Ren%20Zheng%20and%20his%20company%20were%20convicted%20Wednesday%20in%20Digby%20provincial%20court&text=Steve%20Lawrence%2FCBC)-,The%20Chinese%20owner%20of%20a%20lobster%20pound%20in%20Nova%20Scotia,under%20the%20licences%20they%20held (citations 13, 14, 15)
BBC News “Inside Canada’s decades long lobster feud.” https://www.bbc.com/news/world-us-canada-54472604
CTV News “Mi’kmaq chiefs demand stop of alleged federal plans to seize lobster traps.” https://atlantic.ctvnews.ca/mi-kmaq-chiefs-demand-stop-of-alleged-federal-plans-to-seize-lobster-traps-1.5169349
Global News “Ottawa appoints special mediator in N.S. Indigenous lobster fisheries dispute.” https://globalnews.ca/news/7418671/ns-lobster-dispute-ottawa-mediator/