Despite admitting she hasn’t read the entire Marshall decision, Department of Fisheries (DFO) Minister Bernadette Jordan says her government is committed to implementing the Mi’kmaq Nation’s treaty right to catch and sell fish commercially in their traditional territories across the Maritimes, which the landmark ruling guarantees.
“Our government remains focused and committed to the work we do with First Nations to implement their constitutionally-protected, Supreme-Court-affirmed right while ensuring that fisheries remain safe, productive and sustainable for all harvesters,” Jordan told the House fisheries committee on Wednesday.
“But there are no quick or easy solutions. This takes time and patience and there will be challenges along the way. However, that cannot deter us from moving forward.”
Senior government officials joined the minister to field questions about the implementation of Mi’kmaw fishing rights as part of the committee’s study on the topic.
“At the heart of this matter is 200 years of injustice, and what we’re trying to figure out is a way to navigate for the next 200 years,” said Liberal MP Jaime Battiste.
“This is 400 years of a relationship between two nations,” he added. “For the past 200 years, unfortunately, it has been about treaty denial.”
“If this was a simple solution to this longstanding issue, it would have been solved 21 years ago,” Jordan replied. “But it’s not. It’s very complex.”
Yet when asked by Conservative MP Rob Moore if she’d read the Marshall rulings, Jordan said no.
“I have not read it in its entirety.”
No charges yet in lobster pound arson
Though they may have roots in centuries-old agreements, Sipekne’katik First Nation reignited the “lobster wars” when the community launched a self-regulated moderate livelihood fishery on Sept. 17, outside the federally-regulated season.
Commercial fishers protested the operation, destroyed lobster traps and a flotilla blockaded Mi’kmaw skiffs. In October, an angry mob surrounded two Mi’kmaw men in a fish plant, also known as a pound, storing lobster in West Pubnico, N.S.
The mob also surrounded a separate facility and torched a van during the attacks. Someone burnt the Pubnico plant down a few days later. Four people have been charged as part of the investigation. No charges have been laid in the lobster pound arson.
Sipekne’katik fought back by occupying the wharf and securing an injunction against the protests. Chief Mike Sack said the band is also contemplating a spate of lawsuits in response. They sidelined their commercially-licensed fishery due to an industry boycott, Sack announced recently.
Federal Conservative and New Democrat MPs accused the government of not doing enough as the attacks and confrontations unfolded.
Jordan rebuffed the criticisms on Wednesday, saying she’s met extensively with commercial fishers and First Nations. She pointed to her government’s 2017 mandate to negotiate rights and reconciliation agreements as proof progress is being made.
Politicians and reporters also accused Jordan of being largely invisible during the crisis. APTN News requested interviews with the minister or senior officials on multiple occasions, but none were granted.
She remained tight-lipped on whether her government would consider establishing a Mi’kmaw-led fisheries authority that would co-manage the resources alongside DFO, which some have proposed as an alternative.
“I can’t speak to what’s being said or done at the negotiation table,” she said.
DFO cracking down on ‘unauthorized fishing’
In 1999, the Supreme Court of Canada acquitted Donald Marshall Jr., a Mi’kmaw man who was convicted for fishing eels out of season. The high court ruled that Peace and Friendship Treaties of 1760-61 permit the Mi’kmaq to sell fish to make a living, as they have for time immemorial.
The justices later clarified that DFO can regulate the fishery for important purposes like conservation, though the feds must justify any policies that infringe upon a treaty right.
Yet the reconciliation agreements actually ask First Nations to shelve treaty fishing for extended periods in exchange for cash and access to the commercial fishery – a trade many communities reject.
A briefing note prepared for the minister urged her to stress these deals during a September meeting with Membertou Chief Terry Paul.
The document was released under the Access to Information Act and emphasized twice that conservation officers would act against what DFO views as unauthorized fishing.
“I want to reiterate that no community should undertake fishing activities for a moderate livelihood without appropriate authorization. This would be considered unauthorized fishing and subject to enforcement,” said a key point Jordan was encouraged to make.
On Nov. 13, the minister suggested Mi’kmaw treaty fishing in St. Peters Bay in Cape Breton could be subject to DFO enforcement operations.
“The scale and operation of current activities is even in excess of First Nation moderate livelihood fishing proposals. When there is a high concentration of traps in a particular area, it raises concerns regarding localized impacts to the stock,” said a statement.
“If fishery officers are concerned about excessive fishing negatively impacting long-term sustainability of lobster, they will need to take action – whoever is doing the fishing.”
But two chiefs rejected the claim that their harvesters were overfishing the bay. They called on DFO to work with them rather than confiscate traps with livelihood tags.
“They know exactly what our harvesters are doing and what they are putting in the water. If DFO’s Conservation and Protection Officers want to look at traps, we will comply; but seizing traps that are authorized under our Plans is not acceptable,” said Eskasoni Chief Leroy Denny.
Jordan told the committee that those officers aren’t subject to political direction. They enforce the laws as written.
“They have a job to do. They do that job,” she said. “That would be like the minister of Public Safety directing the RCMP. It just doesn’t happen. They are officials of the law, and they will uphold the law.”