2 Wolastoqey bands sue federal government over access to snow crab fishery

Two First Nations in New Brunswick have filed a lawsuit against the Canadian government over access to the lucrative commercial snow crab fishery.

Tobique and Madawaska First Nations are seeking permanent access to snow crab fishing and damages for lost revenues dating back to 1995, when they began requesting a commercial allocation in the Gulf of St. Lawrence. 

The only year the bands got an allocation was 2017, when the quota was higher than average. The quota was raised again this year, but the two Wolastoqey bands did not get an allocation.

Snow crab is the country's second-most valuable fish export, according to the Department of Fisheries and Oceans. Almost all of the snow crab caught off New Brunswick is sold in U.S. or overseas markets. 

"We've tried many different routes to get access and they've all failed," Chief Patricia Bernard of Madawaska First Nation said of the fishery. "We've tried asking with letters. We've tried making arguments."

She said the effort began before the Supreme Court of Canada upheld First Nation hunting and treaty rights in a 1999 ruling in favour of Donald Marshall.

The Marshall case set a precedent for First Nations fishing rights granted in the 1760 and 1761 treaties between Mi'kmaq and Britain. 

"So when Marshall came out, we even tried at that time," Bernard said. "We had numerous requests go in, numerous meetings.

"And at one meeting in March we even said, 'Listen, if you are not going to give us snow crab access send us a letter telling us no and telling us why. We haven't even had the courtesy of a reply."

Bernard said this felt like disrespect by the Department of Fisheries toward the Wolastoqey communities. 

"They're not even answering requests from chiefs" she said. "So we thought enough is enough. We're going to just sue and go after our access and then damages for the years of their failure to provide us access."

The statement of claim from the two First Nations says the federal government wrongfully regulated or restricted their access to the fishery and deprived them of their ability to fish the way they want.

The communities say their treaty right to earn a moderate livelihood is being infringed upon.

"We're supposed to be a priority, for lack of a better term, top of the totem pole. First Nations right-holders are supposed to be at the top of the conversation," said Chief Ross Perley of Tobique, traditionally known as Neqotkuk First Nation.

"There's no magical number about what a moderate livelihood is," Perley said. "If you have poverty in your community and people are struggling, then you're not meeting a moderate livelihood."

The federal government has an annual duty to consult with First Nations on fishing allocations, but the Neqotkuk and Madawaska First Nations said they have not been consulted with in eight years.  

In terms of treaties, I mean, we've shared, our people, our ancestors have shared to the point where we've gone without.- George Ginnish, Natoaganeg First Nation chief

 The government has not yet filed anything in response to the statement of claim, and the bands' allegations related to the snow crab fishery have not been tested in court.

Bernard said that in 2005, Madawaska dropped a snow crab trap into the Gulf of St. Lawrence to assert the First Nation's treaty right to fish but the Department of Fisheries and Oceans seized the trap without any fines.

The two bands have been in contact with Chief George Ginnish of Natoaganeg First Nation in Eel Ground, who said the band is considering taking part as an intervener.

Neqotuk, Madawaska and Natoaganeg are the only First Nations who fish commercially in the gulf region that have been excluded from a commercial snow crab allocation.

Natoaganeg fished snow crab this year

"We don't have the own-source revenue to be able to independently launch a court action," Ginnish said of his community.

Natoaganeg had been fishing snow crab this year to assert its treaty rights but stopped June 5 to begin discussions with Fisheries and Oceans. Ginnish was unhappy with how the discussions went.

"We spent three weeks talking with them and we said 'You need to address our historical exclusion from this fishery.' That was our number one priority and that was not dealt with."

Ginnish announced on June 25 that after three weeks of talks, First Nation members would be putting their traps back in the water to fish for snow crab without an allocation. Ginnish said Natoaganeg follow all conservation guidelines and aren't fishing illegally.

"We've been, I guess, banging the drum with the DFO for a number of years that the Marshall response was not equitable to our community, that it's not possible to build an economy of over a thousand-plus members with six lobster licences.

"We've been at them to diversify our food and our commercial fisheries."

40% food insecurity

Ginnish said his community has an 85 per cent unemployment rate and 40 per cent food insecurity, according to their data, and a snow crab allocation would help bring those numbers down.

"In terms of treaties I mean, we've shared, our people, our ancestors have shared to the point where we've gone without," Ginnish said. "For 152 years we've been excluded."

The 2019 snow crab fishing season in the Gulf of St. Lawrence concluded on July 1.

Government officials were contacted but made no comment.