What is the issue?

Fishers with Nova Scotia’s second-largest Mi’kmaq band, the Sipekne’katik First Nation, are setting lobster traps outside of the Canadian government’s commercial fishing season, which runs from late fall to late spring. The Sipekne’katik band launched their own independent fishery system in September that regulates who in the band is allowed to fish and sets conservation limits on how many lobster one fisher is allowed to harvest every season. Seven Indigenous fishers were given licenses in a ceremony and around 250 traps were set down by the end of the month. 

However, many non-Indigenous fishers are furious at what they consider to be a violation of federal law. They insist this Indigenous fishing system will disrupt local lobster during their breeding season and impact the overall capacity of Nova Scotia’s lobster stocks at a time when the Maritimes’ traditional fishing industry has been on the decline. Non-Indigenous fishers have engaged in violent attacks on Mi’kmaq officials and fishers. 

CBC News reported that after the first seven Indigenous fishing boats dropped their traps, about 50 non-Indigenous boats began circling the Mi’kmaq, threatening to cut their marking buoys. Since then, non-Indigenous fishers have cut 100 Indigenous traps from the water and dumped them in front of the office of a federal Department of Fisheries and Oceans official, protested locals who’ve bought Mi’kmaq lobster, and even raided two lobster pounds used by Indigenous fishers. A mob of non-Indigenous fishers and their supporters burned a van at one pound while at another, an Indigenous fisher took shelter as another mob destroyed his vehicle. Several days later, one of the lobster pounds was set ablaze. A non-Indigenous man has also been charged with assault in connection to an attack on Sipekne’katik First Nation Chief Mike Sack.

This violence is not new. Mi’kmaq fishers have dropped their traps outside of the federally-designated fishing season in the past — and non-Indigenous fishers have responded with violence. However, for the past 21 years, a Supreme Court of Canada ruling has protected the rights of Mi’kmaq fishers to earn a “moderate livelihood” in any season from whatever they catch. 

Why do the Mi’kmaq have the right to fish in the off-season?

The answer lies in a series of treaties signed between the British Empire and the Mi’kmaq people, and a 1999 Supreme Court ruling known as the Marshall Decision. 

Between the winter of 1760 and the fall of 1761, British representatives agreed to a series of treaties with Mi’kmaq communities across what is now Nova Scotia and Cape Breton. This alliance was mostly for geopolitical reasons. The Mi’kmaq had largely supported the French Empire during the Seven Years’ War — which the British had recently won — and the British did not want allies of their former enemies to impede their settlements in the region. What matters about these agreements now is a clause promising that the Mi’kmaq would have “free liberty” to hunt and fish. 

Over the following two hundred years, British and Canadian governments refused to honour these treaties. When thousands of former British colonists migrated from the United States after the American Revolution, local authorities prioritized their needs over the Mi’kmaq and other Indigenous peoples. The Department of Fisheries and Oceans patrolled the Maritimes against anyone fishing outside of federal law.

Donald Marshall Jr., a Mi’kmaq fisher, was one of them. He was charged in 1998 for catching and selling 463 pounds of eel. His defence was the 1760-1761 Mi’kmaq treaty allowing him the right to fish in the off-season. The case went all the way to the Supreme Court where, in 1999, the Court found that the Mi’kmaq communities who signed the peace and friendship treaties did have a right to regulate their own fishing activities outside of federal law. 

However, two months later, they added a (rare) clarification. The federal government could regulate the activities of Mi’kmaq fishers for the purposes of conservation, but only after a consultation process with Mi’kmaq leadership. 

So why is there a conflict at all?

When the Supreme Court ruled in favour of the Mi’kmaq right to fish outside of the federally mandated fishing season, it left the work of defining a ‘moderate livelihood’ up to the Canadian government. Ottawa hasn’t yet. The closest working definition there is to a moderate livelihood is set out in the 1760 Treaty of Friendship, on what the Mi’kmaq people were asking from the British Empire: “for the furnishing them with necessaries, in Exchange for their Peltry.” In other words, the Mi’kmaq people expected to receive essentials (of some sort), but not accumulate wealth, in exchange for their goods. While the original treaty does not offer any further specifics, a ‘moderate livelihood’ 260 years ago is very different from what the Mi’kmaq people could expect today. 

Not only has the federal government not defined a ‘moderate livelihood,’ the clarification allowing the federal government to regulate the Mi’kmaq fishery system seems to allow Ottawa to maintain control. But a month into the Sipekne’katik’s fishery system, that has not happened. There is also disagreement over whether the Mi’kmaq’s fishing activities are damaging the local lobster stocks. A university professor who studies fishery management told CBC News that having just 250 traps out wouldn’t do so, but local fisher associations aren’t convinced. 

Underlying these concerns is a fear of decline. The Maritimes has seen its traditional fishing industry depleted in recent decades, with the federal government resorting to a cod fishing moratorium in the 1990s to save what few fish remained. A corresponding economic downturn devastated fishing communities across the Maritimes. It hasn’t really recovered. The livelihoods of both Indigenous and non-Indigenous fishers depend on the resilience of local lobster stocks. 

What needs to happen from here?

To start, the violence against Mi’kmaq fishers and their property needs to end. RCMP officers have observed numerous acts of vandalism and violence against Indigenous fishers but have done little in response. During the aforementioned raid by non-Indigenous fishers on two lobster pounds used by Mi’kmaq, RCMP officers stood by and watched. “The Supreme Court of Canada made it amply clear in its Marshall decision that Indigenous peoples have a right to fish those waters, and First Nations should not be bullied off the water in this thuggish manner,” read a statement from the Assembly of First Nations earlier this month. The AFN is also calling for the resignation of RCMP Commissioner Brenda Lucki over the incident. 

Representatives from all sides of the issue also need to sit down and discuss how best to proceed. Allister Surette, president and vice-chancellor of the Université Sainte-Anne, has been selected as a mediator between Sipekne’katik leadership and several non-Indigenous fishers associations. It isn’t clear when these talks will take place (and Chief Mike Sack recently told CBC News the talks “weren’t a priority” for him at the moment, although he says he isn’t opposed to participating). 

Finally, and perhaps most importantly, the federal government needs to sit down with Sipekne’katik leadership and discuss how to define concepts like moderate livelihood and conservation as it relates to Indigenous governance of fishery stocks. The AFN is also calling for direct federal intervention in the matter. Chief Sack is hoping to negotiate directly with Ottawa about the issue. 

Why does this matter to the social impact world?

The Mi’kmaq right to fish freely (and the opposition to that right by non-Indigenous fishers) is an ongoing issue of systemic racism that has played out for decades. Violence against Mi’kmaq fishers first started just after the 1999 Marshall Decision was released, and it hasn’t stopped. The Canadian government’s refusal to define a moderate livelihood in the context of this right is another example of a colonial refusal to act on treaty rights even after courts have upheld their legitimacy. 

Managing fish stocks is also a balancing act between environmental conservation and economic need. The Maritimes’ fishing industry is still in a slump, and maintaining it – and potentially broadening the local economic base — will be a multi-generational task. It will take local fishers, but also local governments, conservation experts and, perhaps, the social impact sector to ensure the Maritimes have a self-sufficient local economy. Meanwhile, the fishing industry, if left unmanaged, could spell disaster for the vulnerable ecosystems off the coast of southwest Nova Scotia. 

What role can social impact organizations play?

Fisheries regulation, enforcing treaty rights, and mitigating violence are issues for Canadian governments and sovereign Indigenous nations to ultimately solve. However, the social impact sector can offer money to the Mi’kmaq people during this crisis or help promote awareness of violence against Indigenous peoples in Nova Scotia. 

Even small-scale grassroots efforts can be helpful. Indigenous Artists Supporting Mi’ka’ki, a Facebook group based in Yellowknife, is using art sales to fundraise for fishers and their families. Climate Justice Toronto, a grassroots climate group, is also raising awareness of violence against Indigenous people in Nova Scotia. But major social impact sector organizations could also play a more traditional role in supporting Mi’kmaq people and non-Indigenous communities alike. The Indigenous Peoples Resilience Fund, an Indigenous philanthropic initiative, distributes aid to a variety of Indigenous communities along with economic, social, and cultural projects. 

Above all, any social impact organization looking to play a role in resolving this situation should approach either the Mi’kmaq or settler communities without preconceived notions of what each requires. Let those most affected by violence, systemic racism, and economic exclusion guide the mission. These issues are incredibly important for the social impact sector to understand. They are, unfortunately, still the lived realities of many Indigenous communities across the nation. 

Despite hundreds of years, multiple government apologies, and plenty of talk about the importance of reconciliation, Indigenous peoples are still poorly served by the Canadian government. Settler fishers in the Maritimes are also still struggling with economic disparities of their own which have, both in the past and today, manifested in the form of violent opposition to Mi’kmaq treaty rights. Resolving this conflict will take time. But a receptive and informed social impact sector could offer some much-needed support. 

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