Indigenous fishermen hope to be arrested, trigger court case as Nova Scotia lobster season kicks off

As one of the most lucrative fisheries in Canada kicks off, some Mi'kmaq in Nova Scotia are trying to trigger a court battle over Indigenous fishing, hoping it will see them win a greater share of the thriving lobster business.

And they are daring the Department of Fisheries and Oceans to arrest them.

One of them is Cheryl Maloney, an activist, law school graduate and mother of four boys. She wants her family to be able to earn the "moderate livelihood" she says the Supreme Court of Canada ruled they are entitled to in 1999. 

But 18 years later, that "moderate livelihood" has never been truly defined.

"We'll go fishing and if they want to test what moderate livelihood means…," Maloney said, standing on the Saulnierville wharf in southwestern Nova Scotia. "We can go to court and talk about what the definition of moderate livelihood is.

"We've been winning hundreds and hundreds of cases. We will win in court again."

Past success

In 1999, the Supreme Court of Canada heard the case of Donald Marshall Jr., who had been convicted of catching and selling eels outside the federally regulated season and without a licence. 

The court affirmed the right of the Mi'kmaq, Maliseet and Passamaquoddy peoples of Eastern Canada to participate in the commercial fishery. The court felt the rights granted by the British Crown in 1760 had not been extinguished. 

Canada's top court ruled that descendents of the treaty signatories could fish, hunt and gather to earn what the court described as a "moderate livelihood" — the modern equivalent of "trading for necessaries" — but not the open-ended accumulation of wealth.

Years later, DFO and First Nations have not been able to agree on what "moderate livelihood" means in practical terms.

"Now we hear the conversation that, well, we don't know what a moderate livelihood is," Maloney said. "We know what it's not. We know what poverty looks like. With 80 per cent of First Nation communities in Nova Scotia living below the poverty line, we know what it's not."

Many First Nations in Eastern Canada signed interim fisheries agreements with Ottawa years ago. And the federal government has spent hundreds of millions of dollars providing bands with boats, gear and licences to temporarily help First Nations access a lobster fishery now worth nearly $800 million annually.

In the meantime, long-term negotiations between First Nations and Ottawa continue.

Patience running out

Some Mi'kmaq, like Maloney, argue the growing delay in defining "moderate livelihood" is keeping some Indigenous people out of the fishery and amounts to a violation of their people's treaty rights.

"If the government doesn't want to come to the table to negotiate to figure that out together in a meaningful way, the rights holders will just go and figure it out on our own. And let them haul us into court for that."

The frustration over the matter is turning to friction on the wharfs of southwestern Nova Scotia with non-Indigenous fishermen demanding DFO crackdown on what they call "poaching."

In addition, to have a limited access to the commercial fishery, the courts also affirmed the treaty holders' right to fish any time of year in a food, social and ceremonial fishery.

They are not allowed to sell those lobsters, but non-Indigenous fishermen argue that's exactly what is happening.

Tensions rising

Tensions have been on the rise since protests in September. Two boats, one belonging to an Indigenous fisherman another to a non-Indigenous fisherman, were set on fire.

Illegal lobster catches have been found dumped in the woods. DFO says it is trying to police the situation and has seized hundreds of illegal traps in recent weeks. Last month, it also set up a sting operation, inserting microchips in some lobsters in traps at sea and then following them.

It led to the seizure of three tonnes of lobster at Halifax Stanfield International Airport. 

So far, no charges have been laid in that case, much to the chagrin of some non-Indigenous fishermen.

David Whorley, DFO manager for southwestern Nova Scotia, stresses that DFO has the right to regulate the fishery. 

He says the majority of First Nations harvesters are law-abiding. And he says he understands the frustration on all sides.

But Whorley urges calm.

"There's a view that the enforcement is exclusively on-the-water work. I think that the nature of enforcement is changing," explains Whorley. "Enforcement is often about taking a balanced and measured approach. I think the measure of an effective enforcement program is compliance rather than the charge rate."

Legal challenge

There is another case entering the courts that might help clearly define a "moderate livelihood" involving Joseph Hubert Francis, of Elsipogtog First Nation, in New Brunswick.

Halifax lawyer Michael Donovan, who is not connected to that case but has handled numerous other Indigenous cases, says Ottawa would be well advised to get a deal at the table.

"An arrest would get it before the courts which would probably start a process that would take the next five years or so," Donovan said. "If the consultation takes place first then you are not stuck in a legal battle that goes on for years only to find that, yes, the way it is being handled now violates a treaty right."

As for DFO, it says it will maintain a heavy presence on the water during this upcoming fishing season.

"In general, it's a case of of education," Whorley said.

As Maloney continues to look for a way to get her family into the fishery, she says the ambiguity is hurting everyone.

"The fact that they're going to send us back to court is an embarrassment to Canada because the Supreme Court of Canada has been telling them, Canada, settle this.

"Go and deal with the Mi'kmaq people as rights holders and nations. Deal with it. And they have just not."