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Retired DFO area chief blames fisheries crisis on minister

A Mi'kmaw owned fishing boat leaves the Lower Saulnierville wharf to set lobster traps under a moderate livelihood license.
A Mi'kmaw-owned fishing boat leaves the Lower Saulnierville wharf to set lobster traps under a moderate livelihood licence. - Aaron Beswick

The former DFO area chief for southern Nova Scotia is placing responsibility for the fires, violence and damaged relations between communities on the handling of the crisis by federal Fisheries Minister Bernadette Jordan.

“I don’t blame the Indigenous fishermen or the non-Indigenous fishermen, I blame minister Jordan and whoever she is getting advice from,” said Alan Clarke, who was head of enforcement for southern Nova Scotia for 25 of his 35 years as a fisheries officer.

“My view is that they have mishandled this situation terribly when they should have been following their own recommendations.”

Clarke pointed to the minister’s inconsistency in messaging, a refusal to consult existing users of the resource or to provide them with adequate updates on what is being negotiated regarding a moderate livelihood fishery with First Nations.

“Along with inadequate consultation with commercial fishermen, it appears that there has been no consultation with enforcement staff on this file,” said Clarke.

“Their expertise will be essential in attempting to deliver whatever is being negotiated. If what is developed is unenforceable or makes compliance worse, then everything will be for naught.”

There had been a plan

There was a plan to avoid this crisis.

After being caught flat-footed by the Supreme Court of Canada’s 1999 Marshall decision, the near-chaos that followed on the water and the court’s clarification two months later known as Marshall 2, the standing committee on fisheries and oceans set to work.

It held extensive hearings and received dozens of briefs from First Nations, commercial fisheries associations, conservation organizations and legal scholars.

In 2000, it produced 28 recommendations aimed at achieving fishery access for First Nations, joint enforcement and conservation goals while providing regulatory certainty for commercial fishermen.


Federal Indigenous Services Marc Miller and Fisheries Minister Bernadette Jordan (on screen) take part in a news conference about the dispute between commercial and Mi'kmaw lobster fishers in Nova Scotia, on Parliament Hill in Ottawa, on Monday, Oct. 19, 2020. - Blair Gable / Reuters
Federal Indigenous Services Marc Miller and Fisheries Minister Bernadette Jordan (on screen) take part in a news conference about the dispute between commercial and Mi'kmaw lobster fishers in Nova Scotia, on Parliament Hill in Ottawa, on Monday, Oct. 19, 2020. - Blair Gable / Reuters

The Liberal government of the day accepted the report titled The Marshall Decision and Beyond: Implications for Management of the Atlantic Fisheries and agreed to act on its recommendations.

They included that a “co-operative, co-management and community-based approach to management of fisheries should be promoted.”

Another recommendation is that aboriginal fisheries guardians should be given the same authority to enforce regulations once trained to the same level as DFO fisheries officers and supported by an equivalently strong command, control and support structure.

But they also state that “commercial fisheries for aboriginals and non-aboriginals must be conducted under one set of rules and regulations for all participants in a particular fishery.”

And that access be provided in the form of communal, commercial fishing licences.

“First and foremost, the Court claims it did not hold that the Mi'kmaq treaty right could not be regulated nor that the Mi'kmaq were guaranteed an open season in the fisheries,” reads the report.

“…Moreover, the limited treaty right could be accommodated by amending the Aboriginal Communal Fishing Licences Regulations. The Court confirmed that the treaty right is a communal right to be exercised by the authority of the local community and that it is limited to the area traditionally used by the local community.”

In the years following, the federal government spent over $540 million buying up commercial licences and transferring them to First Nations as communal commercial fishing licences. By 2009, bands in the Maritime provinces held 1,238 of the region’s 11,727 commercial licences. In 2018 they operated 320 vessels, employing 1,421 harvesters and 234 captains.

The report envisioned that buying up and transferring of licences as providing access to the fishery.

The Mi’kmaq have disagreed, arguing that those licences did not address the right of their individual community members to make a moderate livelihood in a self-regulated fishery.

Dispute comes to a head

In September, the Sipekne’katik First Nation brought the debate to a head when it issued the first seven licences to its members to fish up to 50 traps.
On Sept.16, the minister warned that “unauthorized” fishing activity would not be allowed.

A large fleet of commercial boats responded by hauling First Nations' traps.

Video of the larger commercial boats attempting to intimidate the smaller Mi'kmaq-owned fleet spread through social media.

Then the fisheries minister appeared to change her tune.

In an Oct.1 op-ed submitted to The Chronicle Herald for Treaty Day, Jordan wrote, “This is not about creating a brand new fishery outside the law. This is about actualizing a fishery that always had a right to exist.”

That same day, the Potlotek First Nation issued licences to a handful of its fishermen who set 50 traps each in St. Peter’s Bay. Last week DFO seized many of Potlotek's traps.

Then at a joint news conference with Jordan on Monday morning, Indigenous Services Minister Marc Miller said their government would “uphold” the right of Mi’kmaq people to a moderate livelihood and defend it from the violence of commercial fishermen.

During an interview aired nationally on CBC’s As It Happens radio show Monday evening, he insinuated the Trudeau government is considering sending the army into southern Nova Scotia by refusing three requests to state that it wasn’t.

Along with all of this, Sipekne'katik chief Mike Sack was assaulted, a lobster pound in West Pubnico war burned down, as was a Mi'kmaw fishing boat and a van. Another lobster pound was broken into by an angry group of some 200 non-aboriginal fishermen who spread much of the catch out on the ground.

"Confrontation is certainly not new," said Clarke, who retired in 2014.

"But escalation being allowed to take place to this level certainly is new because it appears there is very little enforcement of anything going on."

Jordan’s office did not respond to a request for comment by deadline.

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