Conflict over lucrative lobster fishing by indigenous harvesters in St. Mary’s Bay, NS, erupted last weekend with shouting, pushing and two arrests on a wharf used by the Sipekne'katik Mi’kmaq Indian Reserves.. Lobster wars .In 2020, non-indigenous and indigenous fishing crews clashed over the Sipekne'katik 'moderate livelihood' fishery in St. Mary's Bay — eventually resulting in violence, torched vehicles and fires..This battle about gathering lobster and other aquatic species is reminiscent of similar Western Canada disputes, some also violent, among indigenous actors, other Canadians and various levels of government, over the control of important natural resources..Nova Scotia has a series of historic treaties with the Mi’kmaq dating back to the 1720s, 150 years before any of the numbered treaties in the rest of Canada. These agreements are known as the Peace and Friendship Treaties and were designed to reduce warfare and to regulate trade between the indigenous and settler populations..While these treaties contained few monetary and no land transfer provisions, they guaranteed hunting, fishing and land-use rights for the descendants of the indigenous signatories. These Peace and Friendship Treaties remain in effect today but were regularly but improperly denied or ignored by the Crown during much of Nova Scotia’s past..Today, those ignoring the treaties and court rulings stemming from them are the Mi’kmaq themselves..The treaty and juridical breaches began following the September 1999 Supreme Court of Canada ruling in Regina v. Marshall that the hunting and fishing rights guaranteed to the indigenous treaty signers had never been extinguished..This meant the modern-day descendants of these peoples living in the Maritimes are not subject to government regulations on hunting, fishing, or land use including the need to purchase a licence to gain a “moderate livelihood,” subject to regulations regarding environmental sustainability or social necessity..The small-scale summer fishery in St. Mary’s Bay is open to every band member as an undisputed right of treaty people to fish for subsistence regardless of whether a commercial fishery in the area is open or closed..However, the Department of Fisheries and Oceans does not permit participants to sell their catch, a provision upheld by the Supreme Court but more honoured in the breach than the observance..Such illegal fishing chronically takes place despite efforts by the federal government to enhance Mi’kmaq economic development by spending $545 million since 1999 buying out commercial licences and building capacity so fishermen interested in doing so could enter the commercial fishery in a meaningful way..In 2009, Maritime bands held 1,238 commercial fishing licences out of a total of 11,727 licences in the region. That's up from 316 in 1999. In 2016, those licences generated $126 million in revenue for bands in the Maritimes, up from $3 million in 1999..But the Sipekne'katik and other Mi’kmaq Indian Reserves have resolutely refused to accept federal government authority to regulate the treaty right to fish for a moderate living, including selling lobster out of season..They have repeatedly but falsely claimed their treaty rights supersede provincial laws and Supreme Court rulings, an assertion exacerbated by the failure of either the courts or the federal government to precisely define “moderate livelihood” or to strictly enforce existing laws..According to its website, “Fisheries and Oceans Canada (FOC) helps to ensure healthy and sustainable aquatic ecosystems through habitat protection and sound science. We support economic growth in the marine and fisheries sectors, and innovation in areas such as aquaculture and biotechnology.”.As this long-standing conflict between indigenous and other lobster fishermen suggests, habitat protection and economic growth are often irreconcilable, especially given the minimal political and legal direction and law enforcement on this matter..The Supreme Court has opined in today’s society a “moderate livelihood” means the provision of the right to obtain food, clothing and housing, supplemented by a few amenities. But it is not a right to accumulate wealth..Securing a lobster fishing license is very expensive, ranging from $800,000 for a license to fish St. Mary’s Bay to more than $3 million for the lucrative Lobster Fishing Area 35, yet another incentive to break the law by culling lobster year round..In operational terms, when it comes to how many fishing traps are allowed or how many licences can be handed out, there is no set number, another reason to fight for wealth creation..The pursuit of affluence is surely a key issue for all parties involved in this fishery. In 2021, the value of Maritime lobster exports topped $3.2 billion, the highest ever. The retail price range for lobster is between $21.60 and $47.25 per kilogram, so commercial lobster fishermen can easily earn at least $150,000 per annum. Among treaty-protected fishermen, these earnings are not taxed..With high prices and huge government allowances, the Sipekne'katik launched their own self-regulated fishery on September 17, 2020. It grants fishing licences to its band members who meet requirements set out by the band management plan which contains no prohibition on the sale of lobster or other marine resources during the closed season..Sipekne'katik Chief Mike Sack told CBC's Information Morning in Nova Scotia that their licence authorizes 50 traps per fisher and that they will be monitored..Though it flies in face of this desire for capital accumulation, the reason for lobster fishing regulations is both straightforward and compelling: without a defined closed fishing season — which runs from June 1 to November 30 — the crustaceans would not have time to molt (shed their old shells and replace them with larger ones) and reproduce, thereby resulting in their eventual disappearance from these waters..In a social media post on August 28, the FOC said its officers had seized 321 lobster traps in the area since July 17 for non-compliance with regulations. The retrieved lobster had been returned live to the ocean, it said..Sipekne'katik filed a lawsuit against FOC on July 21 after two band members had their traps confiscated by a fishery officer at the wharf in Saulnierville, NS, on July 18..According to the notice of action filed in Nova Scotia Supreme Court, the department's action prevented the band members from participating in a livelihood fishery..The defendant's actions amount to "an infringement of an Aboriginal right to participate in the harvest and to be in possession of lobster for sale," the document states, even though those covered by the treaties can commercially harvest lobster like other non-indigenous fishermen outside the closed season if they obtain the pricey licences to do so..On the other side of this decades-long dispute, two local Conservative Members of Parliament wrote to federal Fisheries Minister Diane Lebouthillier at the end of August saying urgent action is needed to combat illegal poaching..“With as much as 100 pounds of lobster per pot being pulled from the warm waters daily, the delicate reproduction cycle of these creatures faces an imminent threat,” they said..The province has done little in the past to stop the sale of illegally culled lobster.."Our records indicate that in recent years no provincial court-issued fines of $100,000 have been levied against commercial buyers or processors for violations under the Nova Scotia Fisheries and Coastal Resources Act," spokesperson Joann Alberstat said in a statement earlier this week..Provincial Fisheries and Aquaculture Minister Steve Craig told reporters last week the current maximum is "not a deterrent. It's a cost of doing business — $100,000 is not enough. We need to be able to give the courts, and so on, the ability to fine up to $1 million. And that's what we're doing.”.The actual deterrent is an incentive, namely the province’s failure to apply existing sanctions..The indigenous claim they have a right to define 'moderate livelihood' as they see fit without any regard to the scientific management of a scarce aquatic resource, also confirms the notion that aboriginal conservation efforts have been grossly exaggerated..Those who argue otherwise conveniently ignore that Canada’s indigenous people had neither the population numbers nor technological sophistication to do much environmental damage prior to first contact with the Europeans..Still, beginning in the 18th century, a desire to obtain Western trade goods soon led to their active participation in the decimation of the prairie bison herds and the over-trapping of fur bearing animals..A 500-year insatiable desire for Western products may soon see the lobster fishery suffer the same fate..As for what the 18th century treaties say about all this, in the 1752 Treaty or Articles of Peace and Friendship Renewed, “It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual …. That all Disputes whatsoever that may happen to arise between the Indians now at Peace, and others His Majesty's Subjects in this Province [of Nova Scotia] shall be tryed in His Majesty's Courts of Civil Judicature, where the Indians shall have the same benefit, Advantages and Privileges, as any others of His Majesty's Subjects.”.A plain reading of this text says that the Sipekne'katik Mi’kmaq and other indigenous groups still governed by this treaty, all them “His Majesty’s Subjects,” need to obey Supreme Court and other legal rulings regarding the exploitation of scarce natural resources including lobster if they don’t want to see the reenactment of a bison-like slaughter in Nova Scotia’s precious inshore waters..Hymie Rubenstein is editor of REAL Indigenous Report and a retired professor of anthropology, the University of Manitoba
