More than 50 Indigenous fish harvesters in the Maritimes face charges or on trial

Three years after a First Nation started a self-regulated lobster fishery that sparked protests and violence in Nova Scotia, federal prosecutors are pressing ahead with charges against dozens of Indigenous fishers, some of whom are planning constitutional challenges.

On Sept. 17, 2020, the Sipekne'katik First Nation issued five lobster licences to its members, saying they could trap and sell their catch outside the federally regulated season.

The bold move came exactly 21 years after the Supreme Court of Canada affirmed the treaty right of Indigenous groups in Eastern Canada to hunt and fish for a moderate livelihood, but interpretations of that landmark ruling remain in dispute.

In the months that followed the start of Sipekne'katik's "moderate livelihood fishery," there were confrontations on the water, rowdy protests and riots at two lobster pounds, one of which was razed by a deliberately set fire. The fishing and the violent response have led to criminal charges and civil lawsuits.

By December 2022, federal conservation officers had seized more than 7,000 lobster traps as other Mi'kmaw bands started their own moderate livelihood enterprises. But until now, federal officials have said little about prosecutions related to the Indigenous lobster, crab and baby eel fisheries.

Fishers facing charges

Last month, Mi'kmaw journalist Maureen Googoo combed through provincial court records to compile a list of 54 Mi'kmaw fish harvesters from Nova Scotia and New Brunswick who are now before the courts. Googoo's online news site, Ku'ku'kwes News, reported that about half of those charged are planning to argue in court that they have a constitutionally protected treaty right to catch and sell fish when and where they want.

The federal Fisheries Department confirmed in a statement Friday that Googoo's list of fishers facing charges was accurate.

"We recognize that fisheries ... are of great social, cultural, spiritual and economic importance to many Indigenous peoples, and we remain committed to upholding Indigenous fishing rights, including the treaty right to fish for a moderate livelihood," department spokesperson Lauren Sankey said.

"Our approach to enforcing the Fisheries Act is based on respect for conservation, transparent and predictable management and reconciliation."

Among those charged are members of six First Nations in Nova Scotia and one in New Brunswick. The charges include violating the conditions of a communal licence, fishing without authorization, fishing during a closed season, obstructing a fishery officer and fishing for elvers tiny, young eels in violation of a 2020 order.

In May, two fishers from Pictou Landing First Nation were convicted of lobster fishery offences committed in 2019. Other court cases are well underway, many of them predating the unregulated lobster fishing that drew national attention in 2020. In several of them, constitutional notices have been filed, stating that the accused plan to argue that their treaty rights have been violated.

'Drain on judicial resources'

Naiomi Metallic, a law professor at Dalhousie University in Halifax, said the federal government should be negotiating with First Nations rather than prosecuting Indigenous harvesters.

"It's just a massive drain on judicial resources," said Metallic, who holds the chancellor's chair in Aboriginal law and policy at the Schulich School of Law. "It should be done at the negotiating table."

Metallic said the problem is that successive federal governments have failed to negotiate permanent agreements that spell out what a moderate livelihood fishery would look like.

"This is a treaty right that is unresolved," she said in a recent interview. "The government has tried to sidestep or circumvent this .... Canada is turning a blind eye, and the Mi'kmaq are saying, 'That's not meeting your obligations."'

Even though the Fisheries Department has negotiated many interim agreements with First Nations, the understanding has always been that a permanent resolution will have to wait, she said. But after 24 years of waiting, some First Nations have moved ahead with their own fishing plans.

The Supreme Court of Canada's 1999 Marshall decision said the Mi'kmaq, Maliseet and Passamaquoddy bands in Eastern Canada could hunt, fish and gather to earn a "moderate livelihood," though the court followed up with a clarification two months later, saying the treaty right was subject to federal regulation to ensure conservation.

The decision named after Nova Scotia Mi'kmaw activist Donald Marshall Jr. prompted the federal government to spend hundreds of millions of dollars on helping Indigenous communities participate in various fisheries by purchasing boats and gear for them.

On Friday, the Fisheries Department said Ottawa has worked toward implementing treaty rights through a number of other programs. "These initiatives have helped to increase Indigenous participation in commercial fisheries and contribute to the pursuit of a moderate livelihood," the department's statement says.

Between 2017 and 2023, the department signed seven interim fishing agreements with 15 First Nations.

And in March 2021, Ottawa started approving interim moderate livelihood fishing plans drafted by First Nations. But federal officials have made it clear that any fishing under the plans must be limited to federally regulated seasons.

Some First Nations have refused to sign on, arguing that a one-size-fits-all fishing season doesn't live up to what was promised in the Marshall decision. And 24 years after that landmark ruling, the stage is set for the dispute to land back before the country's highest court.