Canada’s highest court has refused to hear a Mi’kmaw fisherman’s appeal to have legal costs covered in a lawsuit against Ottawa – a potentially groundbreaking case seeking to define treaty fishing rights.
The case comes as clashes between non-Indigenous and Indigenous fishermen intensify across the Maritimes.
Observers warn the simmering tensions could lead to violence if the “moderate livelihood” fishery described in Donald Marshall Jr. case two decades ago is not clarified.
“One of the biggest things that has to be worked out is what a livelihood fishery looks like for the Mi’kmaq,” said Megan Bailey, assistant professor in the Marine Affairs Program at Dalhousie University.
“By not dealing with it, the government is responsible for continued conflict in the fishery.”
“I hope there are no other wars, but I don’t think we’re going to be able to avoid it.”
- Roger Augustine, Assembly of First Nations Regional Chief, N.B. and P.E.I.
Joseph Hubert Francis of New Brunswick’s Elsipogtog First Nation was charged with illegal shrimp fishing in 2015. The criminal charges prompted him to counter with a civil lawsuit against the federal government.
Francis alleges the Fisheries Act infringes on his treaty rights. He’s seeking a declaration that Mi’kmaq can catch and sell fish.
Although the Supreme Court of Canada dismissed his attempt to appeal for legal fees earlier this month, his lawyer said they aren’t giving up.
“Hubert Francis as an individual cannot possibly fund this lawsuit,” lawyer Michael Kennedy with Patterson Law in Halifax said in an interview, explaining why they sought to have the Crown cover costs.
Despite the setback, Kennedy said the case has “tremendous public interest” and his client is now considering his options to move forward.
The case could be key to resolving hostilities between fishermen in the Atlantic region, which have escalated in recent months.
Intentionally sunk
On Boxing Day, the boat of an Eskasoni First Nation fisherman was found underwater, with holes drilled in the hull.
Earlier last month, lobsters apparently caught out of season were tossed from a van in front of the homes of commercial fishermen on the Eastern Shore.
And in the fall, the charred husk of a Membertou First Nation commercial fishing boat was discovered in Sydney Harbour.
The worsening situation is often riddled with racism and complicated by inter-generational feuds, politics and history.
With one of the region’s most lucrative industries at stake, threats of violence and confrontations have quickly escalated in the past.
Some warn the Maritimes may even see another Burnt Church – a crisis between Mi'kmaq and non-Indigenous fishers in New Brunswick and Nova Scotia between 1999 and 2002.
“I hope there are no other wars, but I don’t think we’re going to be able to avoid it,” Assembly of First Nations Regional Chief for New Brunswick and P.E.I. Roger Augustine said.
The Eel Ground First Nation leader has been a chief for 43 years. He calls himself a peacekeeper, and says his community only wants justice. But Augustine says First Nations rights have always been hard-won, and he fears this time may be no different.
“The only way we were able to get any attention in terms of moderate livelihood and Aboriginal treaty rights is by the wars in the water,” he said. “There was never a recognition of our Aboriginal treaty rights without a fight.”
When neighbours compete
It’s an issue that deeply divides communities, turning neighbours against each other.
For non-Indigenous fishermen, they worry their livelihood could be at stake. Many grew up fishing, a trade passed down from father to son – and increasingly daughters.
As the cost of breaking into the commercial fishery rises, many young fishers carry staggering debt loads. Older fishers see their fishing licence as a retirement plan.
They consider fishing without a licence to be poaching. The sentiment is that if they’re playing by the Department of Fisheries and Oceans’ rules, so should everyone. They say all harvesters should be treated equally.
But their biggest concern is about the conservation of fish and lobster stocks.
“There’s an incredible amount of uncertainty in the industry right now,” said Duane Boudreau, the president of the Gulf Nova Scotia Bonafide Fishermen’s Association.
“Fishermen are frustrated. Not enough is being done to resolve these issues.”
He grew up fishing, in a boat before he could walk. He said fishing has always been cyclical, but an increased focus on conservation has led to a rebound in stocks, better catches and a more stable income.
Boudreau said the problem is when not everyone is following the rules. “Nothing in the sea is unlimited,” he said. “We just need to make sure lobster doesn’t go the way of cod.”
Gordon Beaton, president of Maritime Fishermen’s Union Local 4, said relations with Indigenous fishermen have been mostly good but he’s worried the situation could deteriorate.
“They're good human beings like everybody else trying to make a living,” he said. “But we want to see the fishery regulated. Whether that means purchasing more access for native communities I don’t know.”
'there's violence and racism and there's actual hate towards these people'
Yet Mi’kmaq fishers say they’re exercising their rights under the Peace and Friendship Treaties – rights reaffirmed by the Supreme Court’s Marshall decision 20 years ago.
“Indigenous people have been criminalized for trying to find a way to implement treaty,” said Cheryl Maloney, a Mi’kmaw activist and Cape Breton University political science professor.
“We've had equipment seized, traps cut, boats sunk or burned … there's violence and racism and there's actual hate towards these people that are trying to do what is lawful in this country.”
She said the depletion of fish stocks is due to overfishing by commercial fishermen, and that stopping Indigenous Peoples from earning a moderate livelihood on the water is unconstitutional.
“Let us make our living off the rights and the resources in our territory,” Maloney said, noting that many Mi’kmaq children are living below the poverty line. “It's a shame for us to still be in this place.”
'There's no uniform approach. There's no silver bullet'
University of British Columbia anthropology professor Charles R. Menzies said the legislative framework regulating fisheries reflects Canada’s colonial heritage.
“They're calling these reconciliation agreements, and the whole model is trying to incorporate Indigenous rights-based fisheries into the currently existing commercial fishery,” said Menzies, a member of Gitxaała Nation. “It’s an effort to normalize the Crowns claims as to the way it should be.”
Over the past two decades, efforts have been made to include Indigenous Peoples in the commercial fisheries while the rights-based livelihood fishery is negotiated.
Yet not all Mi’kmaq people accepted or benefited from the interim measures, and some – like Francis – have faced charges when fishing.
Resolving the situation hinges on two main issues: Defining a moderate livelihood, and making room for Mi’kmaq in a crowded fishery.
“All of these fisheries are limited entry and fully subscribed,” said Bruce H. Wildsmith, legal counsel for the Mi'kmaq Rights Initiative. “The challenge is how are we going to make room for the Mi'kmaq to fish for their livelihood.”
He said he’s optimistic that if the Mi’kmaq develop their own harvest plan, Canada would eventually accept Mi’kmaq governance of a Mi’kmaq fishery.
It wouldn’t be the first time two fisheries operated in one water. In Washington state, for example, American Indigenous tribes co-manage the fisheries.
Fisheries and Oceans Minister Bernadette Jordan said her No. 1 priority is the safety of harvesters.
“We have to de-escalate the tensions that we're seeing rising in Eastern Canada,” the South Shore-St. Margarets MP said in an interview.
She said the government has been working with First Nations groups to develop agreements. Progress has been made, but she said it’s not “an easy or a fast process.”
“There's no uniform approach. There's no silver bullet,” Jordan said. “But I would rather do it right than do it fast.”
She said livelihood fishing is not illegal, but that traps have to be tagged and marked.
“Those are the ones that are being seized, the ones that are not tagged or marked properly.”
A DFO spokesperson said in an emailed statement that the department “does not condone unauthorized fishing” and that officials work to “combat all activity that contravenes the Fisheries Act and other relevant legislation.”
Yet Wildsmith – who was lead counsel in the Marshall case – said the Mi’kmaq response would be that their constitutional treaty rights supersede fisheries regulations.
“The constitution is the highest law of the land and those regulations are inconsistent with their livelihood right.”
A cursory timeline of fisheries tensions
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