Ten years after Donald Marshall Jr. was found to be wrongfully convicted and imprisoned for 11 years for a murder he did not commit — in a case that a Royal Commission determined was the result of racist attitudes and incompetence on the part of the police and others in the justice system that had failed him at virtually every turn — he was convicted again for another crime that would eventually be overturned in court because it wasn’t a crime at all.

In August of 1993, Marshall, a Mi’kmaq from Membertou First Nation, had set up some newly purchased eel nets near Pomquet Harbour in Antigonish County. He caught about 210 kg, and with eels fetching about $3.70/kg, sold his catch to a New Brunswick buyer. But just as he was about to re-set his gear, fisheries officers seized his nets and charged him with three counts of violating federal fisheries laws. 

According to the book Truth and Conviction: Donald Marshall Jr. and the Mi’kmaq Quest for Justice, when Marshall was asked to produce his fishing licence he replied, “I don’t need a licence. I have the 1752 Treaty.” 

Using the lifetime pension he received as compensation from the wrongful conviction, Marshall decided to fight for his ancestral Treaty rights to hunt and fish, and eventually, after an expensive and lengthy court battle, in 1999 the Supreme Court of Canada ruled in his favour.

Marshall was acquitted on all the fishing charges, and the landmark ruling affirmed that the 1760 and 1761 Peace and Friendship Treaties with the British and Section 35 of the 1982 Constitution Act gave the Mi’kmaq, Maliseet, and Peskotomuhkati people, a total of 34 First Nations in the Maritime provinces and the Gaspé region of Quebec, the right to hunt, fish and gather in pursuit of a “moderate livelihood” from the resources of the land and waters. A subsequent Supreme Court clarification, known as Marshall II, stated that conservation-based regulations would still apply.

First Nations communities in Nova Scotia. Map: province of Nova Scotia

Within hours of that initial decision, Indigenous fishers set lobster traps in areas that were closed for the season, which angered non-Indigenous commercial fishers.

From Burnt Church, New Brunswick to Yarmouth, Nova Scotia, to the Grand Banks off Newfoundland, conflict and violence dominated news reports. Images of hauled up traps, burning boats, and angry stand-offs made the front pages for weeks. Deep cleavages were being formed. While Indigenous fishers exercised their Court-sanctioned Treaty rights, some non-Indigenous commercial fishers argued that it threatened what was left of their livelihoods after the collapse of the Atlantic groundfish fishery, and would result in the plundering of the lobster stocks, the one great fishery they had left. 

Two decades have passed since that landmark legal decision and it looks as if history is repeating itself.

Last month, on the 21st anniversary of the decision, Sipekne’katik First Nation distributed licences and tags and launched its own self-regulated “moderate livelihood” lobster fishery off a wharf in St. Mary’s Bay — part of Lobster Fishing Area (LFA) 34. And just as it did back in 1999, conflict ensued. Non-Indigenous fishing boats swarmed to the area, cutting some First Nation lobster traps and seizing others that were then dumped in front of the federal Department of Fisheries and Oceans (DFO) office in Meteghan.  

In response, federal Fisheries Minister Bernadette Jordan “affirmed what the Marshall decision declared over 20 years ago.” From Jordan’s press release:

Reconciliation is a Canadian imperative and we all have a role to play in it. What is occurring does not advance this goal, nor does it support the implementation of First Nation Treaty rights, or a productive and orderly fishery. We want to work with First Nations leaders on the path forward of the implementation of their Treaty right, and look forward to upcoming conversations on this matter.

And in a recent letter to his community, Membertou Chief Terry Paul, who is co-chair of the Assembly of Nova Scotia Mi’kmaw Chiefs, was adamant that there will be no negotiation. “After speaking with the ministers, they understand that this is not a negotiation process, but rather their role is to assist us in the implementation of the moderate livelihood fishery,” he wrote.  

Membertou Chief Terrance Paul. Photo contributed

“We must define for ourselves, on our own terms, what a moderate livelihood looks like for our own community,” wrote Paul. “We have one chance to define this process and we do NOT want to settle for less than we deserve.”

The situation does beg the question: What has been going on for the last 20 years?

Since the Marshall decision, DFO has injected substantial amounts of funding to transfer commercial fisheries access from non-Indigenous commercial licence holders to First Nations. But what it hasn’t done is address the ruling directly and come to an agreement with the First Nations about what, exactly, constitutes a “moderate livelihood” and how this right to one can be exercised. 

Lobster Fishing Areas. Source: DFO

Post-Marshall

Jeff Purdy is the Deputy Chief of Acadia First Nation and has been on the Band Council since 2012. He also worked for 18 years as an Area Aboriginal Program Coordinator with the DFO, as part of its Aboriginal Fisheries Strategy, the program that emerged from the Sparrow Case — a court decision that predated Marshall by about a decade — in which the Supreme Court recognized that Indigenous people have the right to fish for food, social, and ceremonial (FSC) purposes.

The Supreme Court also found that the right to do so “takes priority, after conservation, over other uses of the resource,” and that Aboriginal groups must be consulted when these fishing rights “might be affected.”  

In an interview, Purdy explains that the Mi’kmaq have distinct fishing activities, in order of protected and affirmed access. The first is the FSC fishery.

Purdy says the fish caught in the FSC fishery can’t be sold, traded, or bartered. It’s also illegal to buy FSC-caught fish. “It’s for gatherings, pow wows, birthdays, weddings, for personal use, for stocking up your freezer for the winter.” But he adds, referring to people (both Indigenous and non-Indigenous) who flout regulations, “There’s bad apples on both sides.” 

“I can’t sit here and honestly say that we’re all perfect,” Purdy says. “Both sides have our challenges. We have really good people on both sides that want what’s best for everyone, but there will always be an illegal fishery and individuals that will take advantage of it for self-benefit and gain.”

One story about “bad apples” and the black market sales in FSC-caught lobsters recently made the news when Sheng Ren Zheng and his company, Guang Da International, were convicted of the illegal sale of lobsters caught with FSC licences. The CBC reported these allegations in 2018 when it obtained unsealed search warrant documents with the details of a federal fisheries sting operation that involved the covert planting of microchips into lobsters located in the traps belonging to members of Sipekne’katik First Nation. The lobsters were traced to the Halifax airport, where they sat waiting for a flight to China. The investigation resulted in only one regulatory charge against Zheng, who was convicted in August 2020, with sentencing set for November. His lobster pound went into receivership, and its licence was revoked. 

While there is no ambiguity regarding the illegality of selling or buying FSC-caught fish, Purdy points out that had the Marshall decision been properly implemented, there would be less incentive to engage in the practice. 

In the food fishery, yes, in the past, there were Aboriginal fishers that were using food tags to make a moderate livelihood, because there were no moderate livelihood conditions or plans or agreements in place. So a lot of Mi’kmaq felt that, “Hey, I have a right.” And some of them would [get] a couple tags and they would go fish and they would sell a portion of it, or they would sell it all, when the intent under the Sparrow decision, was [that] it was only for food, social and ceremonial and it was not meant to be sold. So now that has come to a head and the communities are pushing a little harder and making their own management plans.

Purdy says the DFO responded to the Marshall Decision by providing First Nations with commercial access to fisheries by providing “communal commercial” licences.

The DFO sets commercial licence conditions on an industry-wide scale and the regulations that govern the communal commercial licences specifically flow from the Aboriginal Communal Fishing Licences Regulations but they include similar regulatory requirements that all commercial fishing licences must follow such as conservation measures, gear marking, and reporting requirements.

Unlike regular commercial licences in the inshore lobster fishery that require licence-holders to own and operate their own boats, something we’ll return to, Indigenous communities may designate the captain, crew, and vessel that may be used to fish with their communal licences. 

Purdy says, “The DFO hoped that would solve everything.” According to the DFO, the communal commercial licences and everything that went with them were intended to “provide First Nations with opportunities to access the fisheries in pursuit of a moderate livelihood.” [1]From https://www.dfo-mpo.gc.ca/ae-ve/audits-verifications/09-10/6B016-eng.htm

But for a variety of reasons, it didn’t work out that way.

Jeff Purdy, Deputy Chief of Acadia First Nation. Photo: Linda Pannozzo

The Marshall Response Initiative (MRI) was the first roll out of federal supports in response to the Marshall Decision involving the transfer of fisheries access from the non-Indigenous commercial fisheries to First Nations. Through the Allocation Transfer Program (ATP) — a voluntary licence retirement program — DFO purchased 1,400 existing commercial licences from non-Indigenous commercial licence-holders who wanted to sell, and transferred the equivalent commercial fishing capacity (i.e. quota or in the case of lobster, the number of traps allowed per licence) to First Nations organizations in the form of “communal commercial” fishing licences.

In 2003, the MRI morphed into two more specific initiatives — the At-Sea Mentoring Initiative (ASMI) and the First Nations Operations Management Initiative (FOMI) — aimed at increasing Indigenous employment on vessels so they could gain the skills and experience required to fish in a commercial fishery and to hire non-Indigenous fishers to provide “mentoring” and training. According to the DFO, the aim of the programs was to build internal capacity within First Nations communities so they could maximize the benefits of the newly acquired fisheries access and “strengthen fisheries management practices at the community level.” 

Then in 2007, the DFO established the Atlantic Integrated Commercial Fisheries Initiative (AICFI) in an effort to help First Nations build capacity to manage their fisheries enterprises but also to be able to successfully integrate with the already existing commercial fisheries. 

In total, between 1992 and 2018, the federal government spent a total of $545 million in the Maritimes, most of which was allocated between 1999 and 2007. Of the total, $147 million was spent in Nova Scotia over the 26-year period. 

In researching this piece, the Halifax Examiner contacted the DFO with numerous questions, but at the time of publication, had yet to receive answers. When these are received, they will be reported in Parts 2 and 3 of this series. 

Taken from The Marshall Decision at 20. Acronym legend: Allocation Transfer Program (ATP), Marshall Response Initiative (MRI), Atlantic Integrated Commercial Fisheries Initiative (AICFI), and Atlantic Commercial Fisheries Diversification Initiative (ACFDI).

Conflicting views on program outcomes

According to The Marshall Decision at 20, a report by Ken Coates for the MacDonald-Laurier Institute, the economic impact of the Marshall Implementation “was pronounced.” Coates writes that Indigenous participation in the commercial fisheries as a result of the transfer of fisheries access continues to increase, and that while First Nations experienced “substantial financial, experiential, training, and commercial barriers to effective participation in the industry,” this gradually improved over the course of the various federal initiatives. [2]According to the Corporate Mapping Project  the MacDonald Laurier Institute is a conservative-leaning think tank based in Ottawa. However, an important link that’s missing from the Project’s … Continue reading

Coates does, to some degree, quantify the financial benefits for First Nations by showing that total fishing revenues among Mi’kmaq and Maliseet First Nations have increased during the period of the Marshall Implementation. In Nova Scotia, total First Nations fishing revenues increased from $2.4 million in 1999 to nearly $60 million in 2016.[3]Coates doesn’t specify, but these figures are likely in current (rather than constant) dollars and therefore do not account for inflation.

Taken from The Marshall Decision at 20.

One tangible benefit from the transfer of commercial fishery access to First Nations is undoubtedly employment. But according to Coates: “While the total number of jobs — 1,668 on reserve in 2018 — is not enormous, it nonetheless represented a substantial percentage (4.1 percent) of the 41,000 on and off-reserve First Nations people in the Maritime region.”

In 2015, the DFO released an evaluation of the Atlantic Integrated Commercial Fisheries Initiative (AICFI) on the Maritimes and reported that in 2014, as an outcome of the program, 240 active captains, 1,210 harvesters, 211 captains with certification, and 422 harvesters certified to captain or mate, were Indigenous. 

Coates says the commercial fisheries access resulted in “substantial improvements at the community level,” some of it indirect from spending by newly employed fishers and fishing companies. Many First Nations also created community-owned enterprises, which returned a portion of their annual profits to the Band, writes Coates, with the remaining profit re-invested in the company’s activities. 

For instance, in 2000, Acadia First Nation incorporated Kespuwick Resources Inc. and according to the Registry of Joint Stocks, the directors listed for the firm are the current Band Councillors. According to the Band’s most recent financial statement, the “Fisheries Fund” brought in revenues of $4.6 million in 2019, had expenditures of $3.8 million, and a surplus of $800,000. When compared to 2010, revenue has nearly doubled over the 10-year period, and the surplus has tripled.    

According to Coates:

In the first years after 1999, annual payments were small as the companies paid for training costs, purchased additional equipment, built locally controlled facilities, and otherwise secured the long-term future of their operations. Within a decade, and in some instances sooner, most of the community-owned enterprises returned significant contributions to their First Nations governments. Annual distributions in some communities often amounted to more than a million dollars a year, sometimes many multiples of that… These funds came to the First Nations as own source revenues, not controlled by the federal government and therefore not subject to the standard application and accountability to the federal government processes that had long characterized federal transfers and locally available resources. Own-source revenue has emerged as a major part of the First Nations’ drive for autonomy, allowing local Indigenous governments to target key priorities without recourse to additional applications for federal funding.

Coates’ did acknowledge dissatisfaction among some bands with the program, noting that in Pictou Landing First Nation that came from the “fact that non-Indigenous fishers received such high payouts from the government of Canada and that money flowed more slowly to First Nations.”

Similarly, many members of We’koqma’q First Nation were uneasy “with the amount of federal money going to non-Indigenous fishers; they joined many Indigenous people in wondering if the non-Indigenous people were the prime beneficiaries of the Marshall decision.”

Still, Coates’ general conclusions were mostly rosy, in stark contrast to the way Mi’kmaq Elder Kerry Prosper and some other scholars view the outcome of the communal commercial licences. In a 2010 paper published in The International Indigenous Policy Journal, Prosper and his three co-authors wrote that the DFO response to the Marshall Decision was that the right to fish for a moderate livelihood be:  

…expressed within the existing practice of limited entry access and effort control through allocation management policies such as licences and quotas, otherwise resource conservation would be jeopardized. To this end, DFO set about negotiating deals with each Mi’kmaq band, as well as buying up boats, fishing gear, licenses and quota for distribution to the bands. In the process DFO exacerbated inter Mi’kmaq band divisions and intra Mi’kmaq community conflicts, as well as fuelled Mik’maq-non-Native suspicions and deepened negative ethnic stereotypes.

How much do Mi’kmaq communities benefit?

Colin Sproul is the head of the Bay of Fundy Inshore Fishermen’s Association. He recalls how it worked when the Marshall decision was first being implemented and the government bought fishery access for the Mi’kmaq by buying out existing licences. 

They sent a piece of paper to every family in my community and all fishermen in Atlantic Canada and it said, “write down on this line what price you would take for your fishery access.” And whatever you wrote down is what you got. I know people in this community that wrote $300,000 for their lobster licence and people who wrote down $800,000 and they both got a cheque for that, for the exact same access.

Colin Sproul, President of the Bay of Fundy Inshore Fishermen’s Association. Photo contributed

Sproul says the way the Marshall decision was implemented — without any clarity on how the benefits of the communal commercial licences should be distributed to address moderate livelihood rights — resulted in “social justice implications.” 

According to Sproul, “since the licence buy-outs, the communal commercial licences have been largely leased out by the Bands to non-Indigenous fishing companies.” He points to the Requests for Proposals by Band Councils, which he says might give precedence to First Nation applicants, but don’t require it. In his view, the practice is “displacing” Indigenous fishers and “robbing First Nations communities of the true value of the fishery,” which was meant “to create fishing families and a legacy of prosperity for coastal First Nations.”

Sproul says that when the Marshall Decision was being implemented, “The DFO asked [the Chiefs] to strike a deal to accept moderate livelihood rights as communal commercial access. The Chiefs took the access, but they didn’t accept that it was for the rights… I think there was also an element of good faith [on the part of the] government that [the Chiefs] would let people go fishing.”

“It helps some people, but it’s limited”

Purdy sees it differently. He says that at Acadia First Nation (AFN), the communal commercial licences simply can’t satisfy the right of every member to fish for a moderate livelihood. Referring to the 1,700 community band members, he says, “It helps some people, but it’s limited.”

Acadia First Nation holds 18 communal commercial lobster licences: five in LFA 33 and 13 in LFA 34. It also holds 74 commercial licences for a variety of other fisheries, including clams, crab, groundfish, eel, herring, mackerel, scallop, swordfish, and tuna. [4]Scotia-Fundy Communal Commercial Licences by Aboriginal Organization (2015-2016) was reported in Appendix I of STANTEC’s Scotian Basin Exploration Drilling Project – Environmental Impact … Continue reading

Purdy says that in his community they are “still learning” and trying to build capacity through training programs. “To be a fisherman you can’t just go to school, get your Class 4, get your MED [Marine Emergency Duties] training, get your radio operators course, jump on a boat and go. That doesn’t make you a fisher. You’ll starve to death.”

He says there is still a need to have more experienced non-Indigenous commercial fishers — those who grew up fishing and came from generations of fishing families — to come and mentor the Mi’kmaq in his community who want to fish commercially. 

“For a lot of our Mi’kmaq communities the commercial part of fishing is brand new.”

He says some community members fish the communal commercial licences themselves and some lease them out, he says. 

“This year every one of our leases went to a community member, but how they fish it is totally up to them.” 

Purdy says the going price for a lease is between $80,000 and $90,000. Once the member comes up with the money for that, they sign a contract with the Band. “What happens to that licence afterwards? Sometimes they may flip it. We don’t get involved with that, we just make sure it goes to a community member.”  

Purdy says that Acadia’s communal commercial licences roughly employ 25 to 30 deckhands and “half a dozen captains” from its membership.

Despite the Marshall implementation and the influx of funding to help the Mi’kmaq gain access to the commercial fisheries, Purdy says industrial fishing isn’t for everyone and so the issue of moderate livelihood remains:

In the commercial fishery you go out on a 45- or 50-foot lobster rig, it costs a minimum of $500,000 for a second hand one… You go out for a week, fish really hard, then come back with your catches, spend a couple days and take right back off again. Those big boats go way, way out, in the winter, and it’s very dangerous work. A lot of people can’t do that kind of work. But they’re just as happy to go out in a small boat and make a few dollars to be able to pay to live.

The Assembly of Nova Scotia Mi’kmaw Chiefs outline the difference this way: “A moderate livelihood fishery allows the Mi’kmaq to fish and trade, making a moderate living for themselves and their families, while the communal commercial fishery is a much larger outfit — allowing the Mi’kmaw communities to fish and trade in larger quantities in order to benefit the entire community.”

Purdy says the revenue from leasing the communal commercial licences gets invested back into the fishery for upgrading gear and vessels, purchasing more licences, as well as to offset infrastructure costs, as well as programs and services. 

“But it’s still very small scale in terms of what the community should be getting.”

“Moderate livelihood”?

Sproul believes that if things had been done differently at the beginning, the communal commercial licensing system could have fulfilled the Marshall decision: 

The Bay of Fundy Inshore Fishermen’s Association was founded on a community co-management principle. We’ve got 25 years of taking community access to the groundfish industry in these counties and equitably distributing it evenly out to 150 members. [First Nations] could have taken all the [communal commercial] access’s tags and each year pooled how many people wanted to engage in fishing as a means to gain moderate livelihood, and then divided the tag access up between as many people as wanted to go.

To illustrate his point, Sproul points to the 15 communal commercial lobster licences owned by Sipekne’katik First Nation — the group that recently launched its own moderate livelihood fishery in St. Mary’s Bay. Sproul says the commercial access would translate to about 5,000 tags during the commercial season, and if that were scaled down to smaller boats, with 50 to 100 traps per operation, the access could have produced about 50 moderate livelihood licenses. 

Purdy doesn’t disagree with such an assessment. He says that “in hindsight,” breaking up the licences into smaller shares probably would have worked a lot better for community members. As DFO’s Aboriginal Program Coordinator at the time of the Marshall decision, Purdy was at the negotiation tables with the communities when the communal commercial agreements were being discussed. He says the option of turning the commercial licences into ones that could satisfy the Mi’kmaq right to a moderate livelihood was never discussed. The discussion, he recalls, “was always based around commercial fishing.” 

But, Purdy says, back then the DFO “didn’t have the mandate” to discuss moderate livelihood, because it was something that the minister would have to go to cabinet to obtain. “It was only in the last few years that DFO had a mandate to discuss it, and they were not meaningful discussions.”

Exercising Treaty rights

Which brings us to the current juncture.[5]APTN’s Trina Roache produced two excellent investigative documentaries that show what led up to the launch of the First Nation moderate livelihood fishery in September 2020, and why the Mi’kmaq … Continue reading As a result of the Marshall decision, First Nations in the Maritimes now have a substantial amount of commercial access to very lucrative fisheries, but their members still want to be able to just go out and fish for a moderate livelihood, something that the Court didn’t define and that Ottawa seems unwilling to deal with. 

These rights are now being exercised. In a September 21 press release, the Assembly of Nova Scotia Mi’kmaw Chiefs affirmed their “right to fish for a moderate livelihood,” and Assembly co-chair Chief Terrance Paul stated, “While the public may not comprehend a fishery outside the realm of the Department of Fisheries and Oceans, that does not make our fishery illegal.” 

According to the Mi’kmaq Rights Initiative or Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO) — the group that represents the Mi’kmaq in negotiations with the provincial and federal governments — the Mi’kmaq are interested in a self-regulated fishery, governed by Mi’kmaq laws and authorities, with Mi’kmaq harvest and management plans, and with the DFO’s cooperation.

According to a KMKNO update, the self-regulated fishery would be a small-scale “artisanal fishery with commercial attributes” and would use traditional and modern fishing methods with vessels under 49 feet, with the goal “of improving the well-being of many Mi’kmaq individuals and their families.” Fish caught by fishers registered under the plan can sell, trade, barter, or donate the fish they catch.

In 2019, the federal government signed Rights Reconciliation Agreements (RRAs) with the Elsipogtog and Esgenoôpetitj First Nations in New Brunswick, agreements it claimed upheld “the Supreme Court of Canada’s decision regarding these First Nations’ Treaty rights to harvest and sell fish in pursuit of a moderate livelihood.” As APTN reported, the RRAs, valid for ten years, contained a clause saying that bands wouldn’t sue the DFO, and another that basically meant they would have to fish “under the DFO rules for the existing commercial fishery.” Chiefs in Nova Scotia refused to sign the agreements. 

In response to recent calls by Mi’kmaw parliamentarians to create an Atlantic First Nations Fisheries Authority, a new management body that would allow First Nations to work directly with the Canadian government, Minister Jordan recently announced the feds were open to the possibility, if that was the direction the Mi’kmaw chiefs want to take. 

Keeping the inshore fishery alive

Now we return to the subject of the owner-operator regulations that govern inshore commercial fishing licences in the Maritimes Region. 

In 1992, when federal fisheries minister, John Crosbie announced the moratorium on the fishing of northern cod, he also said that too many boats and too many people were chasing too few fish. He moved to reduce capacity by introducing Individual Transferable Quotas (ITQs), where fishers own a guaranteed share of the resource. Prior to this there was a collective quota for entire fleets, which resulted in competition between fleets and a “race for fish.” 

Critics of the ITQ system say that those with greater access to capital can accumulate quota, whether it’s by leasing it or by buying out fishing licences. Either way, it could result in corporate concentration. 

Caribou Harbour in the Gulf Region is home port for more than 75 lobster licence-owners. Photo: Joan Baxter

In an effort to protect the inshore sector, which represents more than 80% of licence holders, in 1979 the DFO introduced the “fleet separation” policy to the inshore sector and eventually to the coastal sector. Essentially, the “fleet separation” restriction means that quota can’t be mixed between fleets. For instance, a dragger that’s part of the “mobile-gear” sector could buy out the licence of an inshore fisher in the “fixed-gear” sector, but he would not be allowed to add the quota attached to that licence to his own. He would have to either lease it back to an inshore fisher or fish it himself with a fixed-gear boat.

In 1989, the DFO also introduced the “owner-operator” policy, which stated that the owner of the licence needs to operate the boat, and fishers or processors are the only ones allowed to own fish quota. 

To be blunt, these restrictions protect the inshore fishery and the fish quota from being owned by Walmart, or lawyers, or a hedge fund, and helps to ensure that the benefits of the licence stay with the licence holder and that economic benefits accrue to Atlantic Canada’s small coastal communities. 

When ITQs were introduced in Canada’s Pacific fisheries, the process was similar to that on the east coast, except there were no restrictions on who could own quota. As a result, outside investors bought it up and leased it back to fishers. 

In a 2012 paper, Marc Allain, a research associate at the time with the Canadian Fisheries Research Network, revealed what happened when the quota scheme without restrictions was introduced in the Pacific fisheries. “In the space of a few short years, access to the most lucrative species has gotten concentrated in the hands of investors,” he wrote. Leasing fees also skyrocketed, in some cases as high as 75% of the landed value of the fish, leaving little remaining for the crew or the vessel owner. 

Despite the importance of adhering to these protective policies, they have been subject to interpretation and until recently were not legally enforceable. In 2019, both policies were enshrined into the Fisheries Act.

The reason this is relevant in the context of the Marshall decision is, as mentioned earlier, because the communal commercial licences held by First Nations are not bound by these two regulations. 

In other words, First Nation Band Councils own the licences, but there is no requirement that they also fish them. This makes sense, given the sovereignty of the First Nations. But it’s also something that’s on the mind of commercial fishers, like Colin Sproul. 

“The truth is that largely since [the Marshall decision], the communal commercial program is leased out to non-Indigenous fishing companies,” he says. 

This is their right and completely legal, but — much like the now illegal arrangements that are made by non-Indigenous lobster licence-holders who develop trust agreements with corporations to whom they lease their licences — it has the potential to open the inshore fishery up to increasing corporate control and takeover, something that has already happened in the offshore, which will be examined in Part 2.

According to Sproul:

[These] companies own the lobster all the way from the trap to China. That’s their worldview and it’s the worst possible thing for the Nova Scotia economy because it concentrates the value of the fishery into fewer and fewer hands all the time. This practice completely aligns with everything we don’t stand for: of independence and dispersal of economic benefit.

On behalf of the members in my role as Bay of Fundy Inshore Fishermen’s Association president, I know that my enemies are not in a lobster boat in St Mary’s Bay. They’re in Houston and Toronto and Halifax in a boardroom. And if we have any hope, both Indigenous and non-indigenous, in maintaining a sustainable fishery for generations to come, we have to rely on each other in defence of corporate ocean grabbing and environmental degradation that are the greatest threat in the fisheries. 

Darren Porter on his boat in the Bay of Fundy. Photo: Joan Baxter

In an interview with the Halifax Examiner, Darren Porter, independent fisherman and spokesperson for the Fundy United Federation of Fishermen, said that if any fishers — Indigenous or non-Indigenous — believe that the federal government is genuinely interested in protecting them or fish stocks, and that there isn’t a corporate agenda being furthered by the confusion and division in the inshore fishery, they should watch the 1999 film One More Dead Fish, before it’s too late, and “history repeats itself.”   

Porter believes that the DFO would rather deal with one large corporation, than thousands of independent fishers. So if fishers are divided, he said, then corporations will “secure our fish resource right from under our nose. We all need to start acting with respect and working together as brothers and sisters.” 

Next — Part 2: Tensions over a moderate livelihood fishery are hiding a much bigger threat to the inshore.


References

References
1 From https://www.dfo-mpo.gc.ca/ae-ve/audits-verifications/09-10/6B016-eng.htm
2 According to the Corporate Mapping Project  the MacDonald Laurier Institute is a conservative-leaning think tank based in Ottawa. However, an important link that’s missing from the Project’s analysis of the Institute’s corporate ties is that the managing director of the MacDonald Laurier Institute is Brian Lee Crowley, who in 1994 was founding president of the Atlantic Institute for Market Studies (AIMS), a corporate-funded think tank that recently merged with the Fraser Institute. In 1996, while with AIMS, Crowley authored Taking Ownership: Property Rights and Fishery Management on the Atlantic Coast. In 2010, John Risley, owner of Clearwater Seafoods, became Chair of AIMS. Until recently, Clearwater held a monopoly in the offshore lobster fishery, owning all eight offshore licences. It recently sold two to the Membertou First Nation, and as Coates reported in the MacDonald Laurier study, Clearwater is “working in cooperation with First Nations operating under Marshall decision rules.” The significance of this will emerge more clearly in Parts 2 and 3 of this series.
3 Coates doesn’t specify, but these figures are likely in current (rather than constant) dollars and therefore do not account for inflation.
4 Scotia-Fundy Communal Commercial Licences by Aboriginal Organization (2015-2016) was reported in Appendix I of STANTEC’s Scotian Basin Exploration Drilling Project – Environmental Impact Statement. According to the data, Sipekne’katik First Nation holds 15 communal commercial lobster licences in LFAs 32, 33, 34, and 35, as well as 39 additional licences in various other fisheries including scallop, swordfish, groundfish, herring, clams, mackerel, and tuna. 
5 APTN’s Trina Roache produced two excellent investigative documentaries that show what led up to the launch of the First Nation moderate livelihood fishery in September 2020, and why the Mi’kmaq are so frustrated with DFO, the federal government, and widespread racism: Living Treaties Part 1 and Living Treaties Part 2.

Linda Pannozzo

Linda Pannozzo is an award-winning author and freelance journalist based in Nova Scotia. email: linda@halifaxexaminer.ca; Website: lindapannozzo.ca

Joan Baxter

Joan Baxter is an award-winning Nova Scotian journalist and author of seven books, including "The Mill: Fifty Years of Pulp and Protest." Website: www.joanbaxter.ca;...

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  1. I am very concerned that this article gets wrong one of the key facts in this conflict: that the Marshall 2 decision ruled that conservation regulations would “still apply”. This is a key issue in the conflict, and the Examiner is the only news source I’ve seen to get it so wrong. In fact, Marshall 2 ruled that the DFO may regulate Mi’kmaq access, but that any infringement on treaty right would have to meet legal tests (Ie Sparrow and Badger tests) that were created to stop the unnecessary infringement of treaty rights. These tests hold that there must be consultation for any limit to treaty rights, those limits must be necessary to protect the public good, and that the Indigenous group be given priority over other groups. Sipekne’katik has been trying to meet with the DFO over their moderate livelihood fishery for years, and now is eagerly taking part in these talks.
    Now, conservation advocates will tell you that there isn’t a conservation risk with this small scale fishery. And groups like Clearwater get to fish year round. Also, Maine has a year round fishing as well.

  2. Really appreciate Linda Pannazzo and Joan Baxter’s meticulous journalism re: Lobster fishery at a crossroads. And thanks for making this informative read free, Tim Bousquet!

  3. This is a wonderful article the authors are to be congratulated. The article brings a lot of clarity to a very complicated situation. Hopefully it will help move future comments and discussions beyond the us and them stance so many until very recently have taken.

  4. Having watched the documentary ONE MORE DEAD FISH I was left with a number of questions. Here’s one that came from comments made by John Risley- why do we have to buy into the globalization scheme?( Consolidation in the media and in telecommunications has produced inferior products and eliminated the jobs of a great many people.) As for Mr. Risley, his attitude is that dragging the bottom and destroying it is part of the price we need to accept in a globalized world.

    Well, we do have options, and we need leadership in political circles to bring those options forward, and promote them! Federal Fisheries Minister Jordan and provincial fisheries ministers- STEP UP!