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Fisheries report brings hope to Indigenous communities, sparks anger in industry

OTTAWA — A Mi'kmaw lawyer from the community at the centre of a violent backlash over its self-governed lobster fishery says she's "very hopeful" about a new Senate report that calls for the full implementation of Indigenous fishing rights.
Fishing boats from the Sipekne'katik First Nation prepare for the start of its self-regulated treaty lobster fishery in Saulnierville, N.S., on Aug. 16, 2021. A Mi'kmaw lawyer from the community that's been at the centre of violent backlash over its self-governed lobster fishery says she's "very hopeful" about a new Senate report that calls for the implementation of Indigenous fishing rights. THE CANADIAN PRESS/Andrew Vaughan

OTTAWA — A Mi'kmaw lawyer from the community at the centre of a violent backlash over its self-governed lobster fishery says she's "very hopeful" about a new Senate report that calls for the 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 elsewhere in the province, the surprise has been significantly less pleasant. There are concerns the report titled "Peace on the Water" is instead stoking anger in communities where lobster is a livelihood.

Sipekne'katik launched a self-regulated fishery in 2020 in the waters of St. Mary's Bay. It's part of lobster fishing area 34 — or LFA 34 — a slice of coastline that's home to one of the most lucrative fisheries in the country, where roughly one-fifth of all Canadian lobster is hauled each year. 

But that prosperity has not always included Indigenous people. 

When Sipekne'katik set traps with its own tags months before the 2020 fishing season began, there was at times violent backlash from the local community. A lobster pound was deliberately burned to the ground, and protesters formed an angry mob.

In response, Fisheries and Oceans Canada stepped up enforcement on the water and on wharves.

Francis said that left people "to go on 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 treaties of 1760-61 ensure the Mi'kmaq, Wolastoqiyik and Peskotomuhkati have a right to fish for what it called a moderate livelihood. 

Canada has interpreted that to mean Indigenous people should have part of the commercial fishery, and has been negotiating that access. It has given $550 million to Indigenous communities in the years since to increase participation, and Fisheries and Oceans reports that Indigenous landings in 2018 were valued at $140 million. 

But legal experts disagree with the idea the court only meant to allow entry in a unilaterally regulated fishery. Constance MacIntosh, a law professor at Dalhousie University, said the decision recognizes more than a treaty-protected right to fish.

"Other jurisprudence at the Supreme Court of Canada has found that when Indigenous people have these rights, those come with governance rights," she said. "So, the power to decide how that right is going 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 in Canadian law, he said.

"It would be a specific tool that would allow the rights-based fishery to be implemented on its own, not integrated with the existing commercial fishing structure, because they're not compatible."

Some communities, like Listuguj First Nation on the Gaspe Peninsula, have signed rights and reconciliation agreements setting out management of the fishery. For Listuguj Chief Darcy Gray, the next step is for Canada to recognize that right to self-governance.

"It's not necessarily looking at being able to go out (fishing) whenever we want, and however we want," Gray said. "It's being part of that conversation."

Representatives of the commercial fishing industry say they're frustrated they weren't invited to speak to the Senate as it drafted the report on Indigenous rights. 

It's "throwing fuel on a 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 said he wants all lobster fishery licences to be regulated "in a strict manner" under common conservation rules. He also believes only Indigenous people should be allowed to fish under "treaty licences," and that leasing that access should be banned.

"I can't think of any worse action that the federal government could take than to follow clearly foolish recommendations by the senators to expropriate fishery access from Atlantic Canadians," he said. 

"That's based on a warped sense of reality that Atlantic Canada's fishing communities are responsible for the horrors of colonialism."

Gray said reconciliation requires adjustment from everyone.

"You have to look at the historical context where we did this to survive for thousands of years, then we were systematically excluded," he said. "It became unlawful for us 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 she is reviewing the report.

"We're not naive about this," Christmas said. "We know it's a controversial topic, and we know that there will be some who will not want any change at all."

The Senate is calling for Fisheries to step aside, and for Crown-Indigenous Relations to lead negotiations.

"I'd like to think that the temperature has been taken down quite a bit in in the past two years," said Jaime Battiste, parliamentary secretary to the Crown-Indigenous Relations minister.

While he believes the report could "make strides in the right direction," Battiste said he no longer speaks only from the perspective of a Mi'kmaw MP in assessing his own government's action.

"Have we done enough? Could we do more?That's a good question," he said. "I think that we're moving forward at the pace of our stakeholders."

Francis said she's hoping the federal government will move quickly. "For Canada to ignore this is to ignore themselves."

This report by The Canadian Press was first published July 19, 2022.

Sarah Ritchie, The Canadian Press

Note to readers: This is a corrected story. An earlier version misstated Sproul's position on treaty fishery management.