Updated October 20th, 2020

Historically, conflicts in the past have arisen due to competition for resources. Land and oil are the most notable. Contemporary history heeds this as Iraq, Israel’s attempts at annexing the West Bank, and others.

The violence that has erupted in Nova Scotia in recent weeks between Indigenous and non-indigenous fisherman is no different. In this case, the resource is lobster.

In the past week, a Mi’kmaq vehicle was torched, and lobster pounds burned to the ground. Despite the significant violence, the response from the federal government and RCMP has been negligible. 

Much of the rhetoric as of late has been viewed as an “us v.s. them” scenario, with social media being quick to call these recent events based on racist motives. While this is perhaps the case, concluding that this is the only motive of some parties involved is an opaque view of the situation.

The reality is that the Nova Scotian lobster fishery conflict is much more complex.

Source: John Morris/Reuters

Disputes between First Nations and some fishing communities is nothing new. Battles between groups have been happening for decades. One major contest went to the Supreme Court of Canada in 1999, known as the Marshall Decision or R v. Marshall, which gave victory to Mi’kmaq fisherman Donald Marshall, concluding that he had a right to fish when and where he wanted, without a license to a modest livelihood. This closure gave First Nations fishermen the right to fish during any season, irrespective of the conservation practices under the consultation of the federal government.

Here is a key part of the 1999 ruling: “The accused’s treaty rights are limited to securing “necessaries” (which should be construed in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth… What is contemplated is not a right to trade generally for economic gain, but rather a right to trade for necessaries”.

On September 17, 2020, the Mi’Kmaq band Sipekne’katick First Nation began a commercial fishing operation, extending the 1999 court ruling to commercial fishing, thus being allowed to fish year-round. This leads us to the crux of the issue: do year-round commercial fishing operations constitute a moderate livelihood without the open-ended accumulation of wealth? Further, do commercial operations imply a necessity rather than economic gain?  

The treaty that first established this Mi’kmaq right was Peace and Friendship Treaty of 1752 that recognized their right to hunt, fish, and establish trade on their lands. However, like many treaties throughout Canada’s history, it has been proactively ignored and not recognized till recent times. This supreme court ruling has established indigenous rights, however, followed up two months later stating that the amounts were subject to federal control – due to conservation efforts or other important public objectives. The lack of clarity from Ottawa and the silent response is deafening leaving the Mi’kmaq to try to decide what is no longer a grey area. Until then, these treaties rights to fish should be respected as they were intended to.

Source: Darren Calabrese/The Globe and Mail

What happened after the Marshall Decision was the coordinated efforts between the Department of Fisheries and Oceans and the Indigenous groups impacted from this decision. The first was the Marshall Response Initiative, where the federal government provided fishermen licenses, fishing vessels, and gear.

From 2000 – 2007, $354 million dollars was invested into this initiative. When the Marshall Initiative ended the Atlantic Integrated Commercial Fisheries Initiative was formed. Services such as business management, training resources, support for additional-fisheries business opportunities and employment for community members. This was to help establish key community economic self-sufficiency. You can find their objectives listed here.

A moderate livelihood includes those individuals supporting themselves and their families, communal livelihood extends outside that, Mi’kmaq communities operating at a larger scale to support the community in totality therefore getting bigger quantities. Ottawa has not provided the clarity to limits but provided the economic means for the Mi’kmaq communities to financially benefit. It is reasonable to see why they are frustrated.

One important idea to bring to attention was that the Marshall Decision stated that the treaty rights are to be held to the community, not the individual. This is because negotiations were done by the Indigenous communities, not the individuals. This bring into the question, where is all the money going from the commercial fishing operations, who is financially gaining? Is it the individuals who have the means to fish or is the entirely of the community reaping the rewards? While also under the Marshall Decision (para. 59) it is stated “A moderate livelihood includes such basics as “food, clothing and housing, supplemented by a few amenities, but not the accumulation of wealth.”

Currently, Indigenous fishermen have done nothing wrong. They have operated within the set legal boundaries and it appears they were not the group initiating the violence. If the way in which they operate commercially and not individually appears unjust to some groups, voices of frustration and anger could perhaps be put to better use raising the issue with the federal government rather than fishermen operating within current legislative rules through violence.

Many are angry have responded with violence, racist comments, destruction of property and harvest. While these actions cannot be condoned, is their vocal frustration justified?

Many including Dalhousie University Associate Professor, Megan Bailey have correctly noted that Indigenous commercial fish traps make up a small percentage of the overall traps. As such, any issue regarding the sustainability of aquatic populations with commercial fishing during all seasons of the year would be negligible. However, would the expansive ability to fish that Indigenous groups have created further dissonance in the industry sparking not only violence but complete disregard for fishing seasons and rules? If so, the issue of sustainability could become a critical issue and is worth considering further.

Source: Andrew Vaughan/The Canadian Press

The federal government must effectively mediate the situation to best respect treaty rights. In a time of overall anxiety and frustration, compounding this situation on top has proven to be disastrous. A resolution must be made that both parties are satisfied with and that respects the integrity of the Mi’kmaq and their livelihood while ensuring proper federal regulation.

Research & Further Readings

Assembly of Mi’kmaw Chiefs. (2019, October 03). Exercising our rights to what the water provide. Retrieved October 21, 2020, from https://livelihoodfishery.com/

Bailey, M. (2020, October 20). Nova Scotia lobster dispute: Mi’kmaw fishery isn’t a threat to conservation, say scientists. Retrieved October 21, 2020, from https://theconversation.com/nova-scotia-lobster-dispute-mikmaw-fishery-isnt-a-threat-to-conservation-say-scientists-148396

The Globe and Mail. (2020, October 19). Mi’kmaq fisheries under attack: The story in Nova Scotia so far, and the treaty rights behind it. Retrieved October 21, 2020, from https://www.theglobeandmail.com/canada/article-mikmaq-fisheries-nova-scotia-treaty-rights-explainer/

Government of Canada. (2019, December 16). Atlantic Integrated Commercial Fisheries Initiative. Retrieved October 21, 2020, from https://www.dfo-mpo.gc.ca/fisheries-peches/aboriginal-autochtones/aicfi-ipcia/index-eng.html

Government of Canada. (2019, November 20). Factsheet : The 1999 Supreme Court of Canada Marshall Decision. Retrieved October 21, 2020, from https://www.dfo-mpo.gc.ca/publications/fisheries-peches/marshall-1999-eng.html

Government of Canada; Indigenous and Northern Affairs Canada. (2010, September 15). R. v. Marshall. Retrieved October 21, 2020, from https://www.rcaanc-cirnac.gc.ca/eng/1100100028614/1539611557572

Grant, T. (2020, October 15). Vehicle torched, lobster pounds storing Mi’kmaw catches trashed during night of unrest in N.S. | CBC News. Retrieved October 21, 2020, from https://www.cbc.ca/news/canada/nova-scotia/mi-kmaw-lobster-fishery-unrest-1.5761468

McKinley, S., & McKeen, A. (2020, October 14). ‘The RCMP just stood there’: Attack on Mi’kmaq fishery sparks tense standoff, condemnation. Retrieved October 21, 2020, from https://www.thestar.com/news/canada/2020/10/14/mikmaq-chief-slams-nova-scotia-fishery-violence-they-are-getting-away-with-these-terrorist-hate-crime-acts.html

Supreme Court of Canada. (2012, December 03). R. v. Marshall. Retrieved October 21, 2020, from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1739/index.do