DFO, First Nations at odds over treaty fishery as lobster season about to open in Southwest Nova

As both the commercial and Treaty Right Protected lobster fisheries prepare to open in Southwest Nova, four First Nations have put the ball in DFO’s court.

The Annapolis, Bear River, Glooscap and Wasopa’q (Acadia) First Nations have issued licences for 100 traps each to 75 of their harvesters for a total of 7,500 traps to be fished among lobster fishing areas 33, 34 and 35.

Fisheries and Oceans Canada had only provided an allocation to the First Nations, which are in an area of southern Nova Scotia known to the Mi’kmaq as the district of Kespukwitk, of 5,250 traps.

According to Annapolis Valley First Nation Chief Gerald Toney, who also serves as fisheries co-lead for the Assembly of Nova Scotia Mi’kmaw Chiefs, DFO was notified in May of the Kespukwitk intention to grant the 100-traps licences to 25 more harvesters than it did in 2022-23 due to growing demand.

Toney said in a written statement that the Kespukwitk First Nation never heard back from DFO on their request for consultation and only learned the federal government wouldn’t make more room in the fishery from a news release issued last week.

“This news is frustrating for the communities, as we have made several attempts to demonstrate the insufficiency of the current trap allocation, particularly within the commercial lobster season,” wrote Toney.

The Treaty Right Protected fisheries came after the efforts of Mi’kmaw to assert their moderate livelihood rights in 2020 resulted in conflict on and off the water.

It is separate from the Food, Social and Ceremonial Fishery and from the communal commercial licences issued to First  Nations.

Under this new fishery, DFO makes room in fisheries by buying up commercial licences.

First Nations then issue licences to their members for a set number of traps that they determine. Those First Nations fishers then fish during the commercial season under the same rules and with the same style trap as commercial fishermen. The First Nations fishers are allowed to sell their catch commercially.

The Potlotek, Eskasoni, We’koma’q, Pictou Landing and Lennox Island (Prince Edward Island) First Nations fished under these agreements during 2023. Others, including the Sipekne’katik First Nation in Hants County, have not signed onto these agreements but have members who have continued fishing outside of the commercial season.

This summer, according to both commercial fishermen and provincial politicians such as Liberal Leader Zach Churchill, there was a widespread unlicensed commercial fishery being pursued with little enforcement response from DFO in St. Mary’s Bay.

In his written statement, Chief Toney said that for the treaty protected fisheries to work DFO needed to consult with First Nations.

“DFO is not working nation-to-nation,” he wrote.

“There need to be opportunities to discuss and resolve the issues we face with our Treaty Right Protected fisheries. Our Treaty Rights to harvest and sell are a constitutional priority. The courts said that DFO is to work with us on the implementation of the Right, not have DFO just dictate to us what they want.”

The Supreme Court of Canada’s 1999 decision R vs. Marshall and subsequent clarification known as Marshall II acknowledge that the constitution protects the treaty right of Mi’kmaw and Maliseet First Nations to make a “moderate livelihood” from traditionally harvested resources while leaving it to the First Nations and the federal government to determine what constitutes a “moderate livelihood.”

“The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non-aboriginal users of the resource,” reads R vs. Marshall.

“The regulatory authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon and participation in, the fishery by non-aboriginal groups. Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights.”

Having issued for 100 traps each to up to 75 of its harvesters, Toney said it is now up to DFO to make room in the commercial fishery for the added pressure.