Moderate livelihood understanding renewed before Southwest Nova Scotia lobster season opens

The four Mi’kmaw First Nations of southwest Nova Scotia have reached moderate livelihood agreements with DFO for the coming LFA 33, 34 and 35 fishing seasons.

Wasoquopa’q (Acadia), Annapolis Valley, Bear River and Glooscap First Nations will jointly have access to approvals for 5,250 traps spread between the three Lobster Fishing Areas. The First Nations governments will distribute these allocations to their members, who will then fish during the same season, with the same style traps and subject to the same enforcement by DFO as non-aboriginal fishermen.

The Mi’kmaw fishers will be able to sell their catch commercially.

“Reconciliation is a key priority of the Government of Canada, and an important part of that commitment is to uphold First Nations’ treaty right to fish,” said federal Fisheries Minister Diane Lebouthillier in a written statement.

“… I wish all fish harvesters a harmonious, safe and prosperous fishing season.”

This is the third season that the communities of the area of southern Nova Scotia known to the Mi’kmaq as Kespukwitk have renewed an agreement with the federal government to enact their moderate livelihood rights.

Since the conflict over the moderate livelihood fishery erupted in 2020, the moderate livelihood agreements have been gaining traction. During the 2023 fishing season, the Potlotek, We’koqma’q, Eskasoni, Pictou Landing and Lennox Island (Prince Edward Island) First Nations fished under moderate livelihood agreements.

However, other communities such as the Sipe’knekatik First Nation in Hants County have not signed onto the moderate livelihood agreements. This summer, many of its fishers operated again on St. Mary’s Bay, outside of the commercial season and without DFO authorization.

Both DFO and the provincial government were criticized by non-aboriginal commercial fishermen for a lack of enforcement.

The moderate livelihood agreements, which are renewed annually, are the closest the federal government has come to enacting the ruling of the Supreme Court of Canada in its 1999 R vs. Marshall and subsequent clarification known as Marshall II.

In those decisions, the Supreme Court directed the federal government to consult on and create a regulatory regime which allowed for the Mi’kmaw to pursue their constitutionally protected treaty right to make a “moderate livelihood” from traditionally harvested resources. Though it coined the phrase “moderate livelihood” it did not venture to define it.

The court also found that the right is a regulated one subject to the federal fisheries minister.

“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. “

Beyond the moderate livelihood agreements, DFO has spent upwards of $600 million buying up commercial fishing licenses and providing them with equipment and training and to First Nations in Atlantic Canada since the Marshall Decision.

First Nations receive additional allocations to fish for food, social, and ceremonial purposes.

Attempts to reach spokespeople for the four Kespukwitk First Nations were unsuccessful.