Lobster fishery at a crossroads

On October 1, hundreds of Mi’kmaq and their allies held a mawio’mi to celebrate Treaty Day on the wharf in Saulnierville on St. Mary’s Bay in Southwest Nova, where crews from Sipekne’katik First Nation were almost two weeks into their new “moderate livelihood” fishery, affirmed as their Treaty right by the 1999 Supreme Court of Canada Marshall decision. 

Moments before the celebration began, Sipekne’katik Chief Sack spoke with the Halifax Examiner by telephone. He said that the First Nation fishers were now operating 10 boats off Saulnierville for their moderate livelihood fishery, up from the initial seven licences the band issued to its members. Each licence is for 50 traps, for a total of 500. 

Sack said that the Sipekne’katik First Nation had another five boats available to them, but he didn’t know if or when they might also join in the moderate livelihood lobster fishing. ^[1]Five days later, a lobster boat belonging to Sipetne’katik fisher Robert Syliboy was burned in a suspicious fire, which the RCMP are investigating.

He said they would continue their moderate livelihood fishing right into the official commercial lobster fishing season in LFA 34, which runs from November 28 to May 31. 

According to APTN News, the commercial fishery in that zone, which is much bigger than just St. Mary’s Bay, allows for up to 390,000 traps. The zone is Lobster Fishing Area (LFA) 34, where the commercial lobster fishery involves up to 985 fishing vessels and 375 or 400 traps per licensed vessel, depending on the time of year. ^[2]The Halifax Examiner last accessed the website: https://thisfish.info/fishery/15/ on October 3, 2020; it appears to no longer be accessible, and now has to be retrieved via the Wayback machine … Continue reading

A very few of these are for First Nation communal commercial licences, including ones belonging to Sipekne’katik. As reported in Part 1 of this series, communal commercial licences are those issued by the Department of Fisheries and Oceans (DFO) to First Nations communities as part of the Marshall Response Initiative, which included a voluntary buy-back program from non-Indigenous licence-holders.

In addition to the moderate livelihood lobster licences that Sipekne’katik has issued, Sack told the Examiner that the band has 14 or 15 communal commercial licences for lobster fishing in LFAs 33, 34, and 35. 

Asked whether the Sipekne’katik crews currently exercising their Treaty rights to a moderate livelihood fishery would shift over to the commercial fishery with those licenses when the season opened, Sack said they were different crews.   

He told the Examiner that the Sipekne’katik had a “good team” to develop its moderate fishery management plan, drawing on input from fishers in the community. He said they had been working on it for years. 

Asked if it is connected to the “Netukulimk livelihood fishery,” based on the Mi’kmaq philosophy of using of resources judiciously, which has been proposed by the Assembly of Nova Scotia Mi’kmaw Chiefs, and is still under review, Sack replied that it is not, the Sipekne’katik plan is separate. 

A peace offering

In the course of the Treaty Day celebration in Saulnierville, third generation Acadian fisher Joel Comeau and his wife Cindy made a peace offering to Mi’Kmaq Elder De-Anne Sack. 

In an interview with the Examiner, Joel Comeau said it was a gesture he wanted to make both as a member of the Maritime Fishermen’s Union (MFU) and personally, as a fisherman. 

Cindy Comeau said it was very emotional meeting, and Elder Sack graciously invited them to stay and eat supper with them, saying they were “allies.” 

Joel Comeau, who has been fishing in St. Mary’s Bay for 27 years, said he has had 20 years of peaceful and “great fishing” side-by-side with Mi’qmaw fishers, and he would like to see that continue. He wants the lobster fishery and stock to continue to thrive so that his daughter will also one day be able to take over from him, as will the children of the Mi’kmaw fishers.

“We would like the rules to be implemented,” said Joel Comeau. “The commercial fishermen and the Mi’kmaq fishermen and DFO, we should all work together. It’s the same resource.” 

What is important to everyone, he said, is the survival of the lobster and the fishery, so that everyone can profit from it. But, he said, “DFO is choosing not to let us work with the Mi’kmaq. DFO is the stick in the mud here.”

“We’ve had peace for 400 years with the Mi’kmaq,” Cindy Comeau said. “The first people our Acadian ancestors had contact with was the Mi’kmaq. We’ve been hand in hand for a long time.”

The Comeaus said that the peace offering — a locally made basket — was a symbol of their desire for peace in the bay following what Joel Comeau called the “fiasco” that erupted on September 17 when the Sipekne’katik moderate fishery began. 

DFO missing in inaction

The Comeaus are referring to the ugly and tense scene in the first few days that the Mi’kmaw fishers began exercising their Treaty rights and setting lobster traps off Saulnierville, and were met by swarms of angry Acadian commercial fishermen, who reportedly fired flares at them, and also issued threats and cut their traplines. 

According to Colin Sproul, head of the Bay of Fundy Inshore Fishermen’s Association, non-Indigenous fishers maintain that they were being shot at with a slingshot, and that the flares were not being fired at anyone, but were being deployed to see what was going on. 

The following day, the Assembly of Nova Scotia Mi’kmaw chiefs declared a state of emergency because of the “political unrest” on mainland Nova Scotia and the “violence occurring over Mi’kmaq fisheries across the province.”

The chiefs called on the DFO, the RCMP, and the government of Nova Scotia to “assist in the protection of Mi’kmaw fishers, families, and supporters.” 

In a meeting on September 21, with DFO Minister Bernadette Jordan and Minister of Crown-Indigenous Relations, Carolyn Bennett, the chiefs asked the ministers to “publicly speak out against the racism and violence towards Mi’kmaw community members.” They also wanted to “make clear to the Ministers and in turn, the public, that despite what is being communicated in mainstream media, Moderate Livelihood is not an illegal fishery.” 

In the article “Facts Behind Mi’kmaw Fishing Rights,” APTN News challenged claims by the commercial non-Indigenous fishermen that conservation was an issue, stating that:

Contrary to what non-Mi’kmaw fishers are saying, conservation is not a concern. According to the Department of Fisheries and Oceans (DFO), the lobster stocks are healthy. The Commercial fishery, according to the DFO “remains very healthy.” The province says the landing of lobster has doubled in the past 20 years.

Lobster seasons “created by industry”

Membertou First Nation Chief Terrance Paul is the co-chair of the Assembly of Nova Scotia Mi’kmaw Chiefs, and responsible for the fisheries, mining and finance portfolios with the Mi’kmaq Rights Initiative. 

In an interview with the Halifax Examiner, Paul said that with the number of traps the First Nations are putting in the water, they would “have difficulty reaching 1%” of the non-Indigenous fishery. 

Asked about concerns expressed by non-Indigenous fishers over the out-of-season lobster fishing and conservation of stocks, Paul said statements that Mi’kmaw fishers in St. Mary’s Bay were fishing lobsters that were moulting were “misinformation.” 

He said that the lobster seasons were “created by industry,” and that they are actually “marketing seasons.” 

We fished sustainably for years. And part of the reason a lot of our fishers don’t want to fish the same time as the commercial fishermen is because they’re just tired of the harassment that they get in the commercial fishery, even though we have commercial licences that we fish under. So there’s a lot less stress for us, and we certainly feel that there’s a lot less stress on the fishery itself because there’s very few of us compared to the industry.

Paul told the Examiner that Membertou First Nation has been developing its own moderate livelihood management plan for fisheries, based on a “set of guidelines that all the communities have volunteered to follow, which addresses the concerns that we would have and anyone else would have on the conservation.” 

He said that Membertou, for example, could adopt the plan developed by the Potlotek First Nation for its moderate livelihood fishery, and adapt it for their own needs. 

Asked for his thoughts on a solution to the outstanding issue of what a moderate livelihood entails, he said: 

We’re constantly requesting that DFO meet with us, but meet with us about the way that we would like to fish. The ongoing plan for the moderate livelihood fishery season in Nova Scotia is that each community is respectively working to complete their management plans. Through these plans, each community will determine for themselves what a moderate livelihood fishery is for them. We also feel that we have the right … part of that right is to be able to sell the fish also.

Both Membertou and Potlotek First Nations launched their own moderate livelihood fisheries in St. Peters, Cape Breton, on Treaty Day, October 1. 

Membertou also has six communal commercial lobster licences and three for crab, issued by the DFO under the Aboriginal Fisheries Agreements Regulations. Chief Paul said Membertou also recently purchased two of eight lobster licences owned by Clearwater in the vast offshore LFA 41, a deal we’ll come back to. 

He said that Membertou will start lobster fishing with its communal commercial licences when the commercial season begins, adding that fishing sustainably was nothing new for the Mi’kmaq, who have been doing it for “thousands of years.” 

In an update on the moderate livelihood fishery in August 2020, the Assembly of Nova Scotia Mi’kmaw Chiefs said its members were part of the “Made-in-Nova Scotia Process” discussions on fish, and that their work was based on “the long-held Mi’kmaw philosophy of netukulimk,” defined as “the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community by achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity, or productivity of the ‘natural bounty.’”

The Assembly defined “Mi’kmaq netukulimk fishing,” as reported in Part 1 of this series, as “a small scape, artisanal fishery with commercial attributes.”

The Assembly has developed 17 principles for a Netukulimk livelihood fishery, four of which are still “under review” and needing “community discussion.” But one that isn’t, Principle 16, states that the different kinds of fisheries — food, social and ceremonial (FSC), communal-commercial with DFO-issued licences, and Netukulimk livelihood — are “distinct and separate with their own rules and regulations.”

“There’s only one pie”

Martin Mallet is interim executive director of the Maritime Fishermen’s Union (MFU), which represents more than 1,200 independent inshore owner-operator fishermen from New Brunswick and Nova Scotian coastal communities.

In an interview, Mallet said that the solutions to conflicts in the fishery, such as the “lobster war” that erupted in Burnt Church after the Marshall Decision, came “only when the fishermen, in this case, the Maritimes Fishermen’s Union in New Brunswick, got to sit down with the First Nations and DFO to discuss solutions.” 

The same dialogue is needed again, in Mallet’s view. 

He said that there is much that the First Nations and non-Indigenous commercial fishers have in common, and that it is crucial that they all meet with government for preliminary discussions before any negotiations begin. 

Some of the approaches that the First Nations will come up with would be ideas that we would appreciate to hear, and maybe adopt. But until we have these discussions right now, we’re just left in the dark, basically. And this is not helping trying to have fishermen, how would I say, respect the current process, which is not working for First Nations either.

Mallet said the lobster fishery on the east coast is “fully subscribed,” and if there is going to be increased access for First Nations, “there needs to be a plan to sit down with fishermen’s associations and figure out how we’re going to remove some access [to non-Indigenous fishers] to give it to First Nations.”  

Mallet added:

There’s only one pie. So for it to be sustainable for everybody, including First Nations, we need to have that “one in – one out” kind of approach. But there are also other discussions to be had around the table in terms of fisheries management that will only happen when that table is set up where we can sit down together — fishermen’s associations, First Nations, and government, and discuss fisheries management.

The MFU is one of the 13 members of the Coalition of Atlantic and Quebec Fishing Organizations that issued a press release after the Sipekne’katik launched their moderate livelihood fishery in Saulnierville. The press release, with the dramatic headline “Canada’s fisheries may be destroyed,” called for the “peaceful de-escalation of tensions by putting a spotlight “on illegal fishing outside of the seasonal ban.” 

The season for commercial lobster licenses in Saulnierville, Lobster Fishery Area 34, limits the number of traps and fishing days “to limit catch and protect molts [lobsters that have recently moulted] with soft shells.” Sipekne‘katik Chief Michael Sack refuted this in his interview with the Examiner. ^[3]See Endnote 2

The coalition’s press release continued:

This isn’t about the rights of Indigenous People to fish. This is about conserving the fishery for everyone — both indigenous and non-indigenous fishermen. Unless there is one set of rules driven by conservation of the fishery, Canada’s fishery will be destroyed,” said Bernie Berry, President of the Coldwater Lobster Association. 

The issue of conservation of lobster stocks is a heated one, with perspectives on all sides of the issue. While we begin the discussion here, we will delve deeper into the purpose of seasons, trap limits, and other conservation measures employed by the commercial in Part 3 of this series.

The Halifax Examiner requested an interview with a DFO biologist with knowledge of lobster biology and stocks, which was not granted. We also sent numerous questions to DFO on these and a range of related subjects, and are still waiting for those answers. As soon as they are received they will be reported.

Erosion of the independent inshore fishery

Susanna Fuller, vice president Operations and Projects at the charitable organization Oceans North that promotes science- and community-based conservation in the Arctic and Atlantic Canada, says that there is indeed racism involved, and it was on display at the wharf in Saulnierville when the Mi’kmaq fishers started exercising their Treaty right to a moderate livelihood fishery. 

“Events of this week, with a vessel being burned, suggest something more than the usual competition between fishers,” she says, adding:

One of the failures over the years is that fishing associations haven’t done the work to nip racism in the bud — and rather the leadership is being forced to take actions it might not otherwise, because they are responding to this racism. Sometimes fishermen don’t even recognize that they are being racist…but even from the early days of Marshall implementation fishermen would say, “I’ve got my native on board.”

Fuller believes the whole situation could have been avoided, as she writes here: 

Mi’kmaw communities are asserting their rights outside of the current DFO management system and fishing season largely as a result of government inaction. After 21 years of failed negotiations to address the right to a moderate livelihood, Sipekne’katik First Nation is asserting their Treaty right to fish. The choice by non-Indigenous fishers to oppose this assertion of rights with confrontation was neither inevitable nor necessary.

She is not convinced by the commercial fishermen’s arguments that the First Nations will undermine conservation, given that, in her view, non-Indigenous fisheries have long been for “short-term profit at the expense of sustainability.” She adds: 

As such, it is ironic to hear fishermen call so strongly for the enforcement of conservation laws and policies. Despite DFO having policies on bycatch management, protecting sensitive seafloor species, rebuilding depleted populations, management of forage fish, and fisheries monitoring — not to mention a modernized Fisheries Act — there is a constant refrain from fishermen about why these policies should be ignored and why they are a threat to the fishery … While many are stewards of the resource, there is more than DFO to blame for the struggle to implement sustainability measures under Canadian law and policy.

In an interview with the Halifax Examiner, Fuller said that while there is a need for better conservation stewardship in the fishing industry, her sympathy for the non-Indigenous argument about conservation is “low.” She points to the attempt to put a Marine Protected Area along Nova Scotia’s Eastern Shore, which she says:

…would essentially have given the inshore fishermen co-management of their whole coast, and they fought tooth and nail against that. They would have co-managed that entire coast and continued their fishery. But they wanted to push back against conservation, and that happened time and time and time and time again.

Fuller says that a very real threat to the independent inshore lobster fishery is the corporate buying up of commercial lobster licences through trust agreements. She said it is still happening, despite the fact that owner-operator is enshrined in the fisheries law, that law is being broken.

“People are not fighting hard enough against those trust agreements because they’re benefiting financially,” she says.  

Some guys are getting a tonne of money. They got their licences years ago for $25 and sell them for half a million. It’s very hard in Southwest Nova to really enforce it [the owner-operator law], because so many people benefit from it … There are all kinds of deals being made … I do think there needs to be more digging into the corporate buyout and whether or not DFO is enforcing the no trust agreements.

This is where it comes down to fishermen who have an owner-operator licence. They need to stand up for what they have and the people who fought for that in the Fisheries Act. Because if they don’t they will lose it, and it will be bought by corporate actors.

But that is just one way that the inshore independent fishery is being eroded. She also wonders why there wasn’t a “major outcry” when foreign investors started buying processing facilities. 

“The horse is out of the barn,” she says. “Foreign investors and large financial institutions own a lot of our processing facilities, so we’re losing a significant part of our supply chain that used to be locally owned. And there is no limit on foreign ownership of that supply chain.” 

Clearwater capitalizes on public resource

Shortly after the Marshall Decision in 1999, non-Indigenous fishing organizations and companies were scrambling to figure out what the implications of the ruling were for them.

In response to the uncertainty, the Atlantic Fishermen’s Alliance formed to “speak with a united voice on behalf of the fishing industry on issues relating to the Marshall decision.” Clearwater Fine Foods was one of the group’s founding members, and Denny Morrow who headed up the NS Fish Packers Association, was the group’s coordinator. ^[4]Personal communication between Denny Morrow and Linda Pannozzo, November 5, 1999.

In an interview conducted at the time, Bernd Christmas, a Mi’kmaq lawyer and negotiator for the Assembly of Nova Scotia Mi’kmaw Chiefs, said the Assembly had met with Clearwater co-founder and owner, John Risley: “You could tell in his face, he’s frustrated. [Clearwater’s] greatest fear is that the Mi’kmaq people are going to set up the same thing as Clearwater. Mi’kmaq have constitutionally protected access to the resource, while they have to lobby for their access.” ^[5]Personal communication between Bernd Christmas and Linda Pannozzo, September 27, 1999.

For his part, Risley said at the time that he had questions about the geographic limitations of where the Treaty rights could be exercised, and whether it just included species that the Mi’kmaq historically fished. ^[6]Personal communication between John Risley and Linda Pannozzo, November 1, 1999.

While the Marshall decision and the guaranteed access it provided to First Nations initially posed a threat to Risley, it appears from the deals and partnerships he’s brokered over the years, that it’s also something he’s managed quite handily to capitalize on.  

Susanna Fuller says there is a problem with a monopoly on the offshore lobster fishery in LFA 41, until it recently sold two of its eight licences to Membertou First Nation.

“All the science is done by industry for offshore lobster,” she told the Halifax Examiner, adding: 

Industry does all the science for Arctic clam. And it sometimes doesn’t let DFO technicians on their boats. As a result, the private sector own that science and data on a public resource, which I have railed against like there’s no tomorrow. 

…

I don’t think it’s bad to do science on the boat, necessarily, I just think it needs to be 100% transparent data and in the public realm.

It’s a subject we’ll return to.

Unlike the inshore lobster fishery that is governed by seasons and trap limits, Clearwater’s offshore licences is a quota that can be fished all year round and the total allowable catch is 720 tonnes, which the DFO set in 1986. 

The DFO also allows Clearwater to exceed that limit to make up for seasons when it hasn’t attained it, as happened in 2004 and 2005, when the company harvested 1,008 tonnes of lobster from its then monopoly on LFA 41.

Fuller also refers to the recent deal which saw Membertou First Nation pay $25 million for two of Clearwater’s eight offshore lobster licences. “So Clearwater got access to that public resource for no money, and now they’re selling it for a tonne of money.”

As well, in March 2019, Clearwater and 14 First Nations in Nova Scotia and Newfoundland and Labrador signed a 50-year partnership on the Arctic surf clam fishery — another public resource on which Clearwater held a monopoly for nearly 20 years.

It was a deal the company said would create economic opportunities for First Nations. It’s unclear if or what Clearwater received from the feds in agreeing to the transfer of the surf clam licence, but the company clearly managed, once again, to benefit from Canada’s reconciliation efforts with First Nations.    

Membertou moves into offshore lobster

The close corporate relationship between Membertou First Nation and Clearwater is nothing new. Back in 2004, the Atlantic Institute for Market Studies (AIMS), a right-leaning, free market think tank that has now been subsumed by the Fraser Institute, reported on the “unique partnership” between the Band and Clearwater Fine Foods, which included contract harvesting and also branding of Membertou-fished products. Clearwater owner John Risler is chair of AIMS. 

In their September 2020 press release about the sale of the offshore lobster licences, Clearwater and Membertou state that the “transaction builds on and strengthens” their business relationship, which “already includes operating agreements in other Clearwater species, Indigenous employment, and procurement commitments.” 

Membertou Chief Terry Paul told the Examiner that he didn’t have a number for the jobs that the deal would create for First Nations people. But, he said, “We have a process and a program that was part of the deal on the Arctic Surf Clam where any employment with Clearwater is open to the Mi’kmaq people in Nova Scotia.”

He said the Membertou licences would be fished by the Clearwater offshore lobster boat, Randell Dominaux, as this is “much more efficient and economical.” 

Paul added, “I’d like at some point to integrate as many of our people into the Clearwater operations, and they’re very open to that.”

Asked if he would like to see the inshore fishery remain independent, and run by the people who own the licences and boats, or whether he would like to see an expansion of the corporate sector in the inshore, Paul replied: “I believe that individual fishermen should get their own equipment and also be able to fish, within our rules. We’re here to help them accomplish that.”

 “No issue with the owner operator policy”

Christine Penney, vice president sustainability and public affairs at Clearwater Seafoods, told the Halifax Examiner that the deal with Membertou gives the Band 25% of the total allowable lobster catch in the offshore and involves “a long-term harvest agreement” that allows Membertou to harvest that quota on the Clearwater vessel that operates in LFA 41. 

She says its offshore licences in LFA 41 supply Clearwater with 1.5 – 1.6 million pounds (680 – 725 tonnes), and it purchases the rest, between 6 and 8 million pounds (2,722 – 3,629 tonnes) from the inshore fishery. The company sells the lobster all over the world — to Asia, Europe, and throughout North America. 

Some of its supply, “but not a large component” comes from First Nations fishermen. 

Penney said that Clearwater is “not involved in the current situation in St. Mary’s Bay,” adding:

So our people, our fishermen are not involved in any of the protest. We are concerned about the current situation and the tensions down there … and we really urge calm on all sides. First and foremost, people need to be safe; that’s the most important thing. And beyond that, what I would say is we fundamentally recognize and respect the rights of First Nations, and understand the impatience of First Nations communities 21 years after the Marshall decision. And they’re continuing to work towards implementation of those rights with the federal government. So we certainly understand the impatience and respect the rights that they have to fish for a moderate livelihood.

On the other hand, she said:

We also understand the concerns of non-Indigenous fish harvesters who have a long tradition of earning their livelihoods from the fishery, and who are potentially impacted by changes in the way that the First Nations and fisheries are managed…As I say, we don’t condone dangerous actions on the water. And we really want to see people come to the table and find a pathway through dialogue and mutual respect, and recognition of those rights.

Sipekne’katik Chief Michael Sack has called on the province of Nova Scotia, which regulates the sale of lobsters, to recognize the Band’s right to sell the lobster it is catching in its moderate livelihood fishery in St. Mary’s Bay. 

Penney said that if the province were to allow the Band to sell the lobster they are catching, Clearwater “would be more than happy to purchase lobster from the First Nation.”

Asked whether Clearwater supports the independent inshore fishery, and the owner-operator laws, Penney replied: 

We’ve got no issue with the owner operator policy. I mean, it’s been in place as long as I can remember, and I’ve been in the fishery over 20 years. I know that’s the way it’s been implemented [and] has evolved, from policy to regulation under the new Fisheries Act… We work quite effectively within that system…we procure from inshore independent fishermen. 

Big changes coming to the lobster fishery?

After the interview with Christine Penney, a seafood business news service reported that the “acquisitive Canadian food group Premium Brand Holdings is being tipped as the frontrunner for Clearwater Seafoods in a bid that is said to involve First Nations groups.” Quoting unnamed sources, the author of the article, Tom Seaman, wrote that, “The two groups linked to the Premium bid are the Membertou First Nation of Nova Scotia and Miawpukek First Nation of Newfoundland and Labrador.”

Clearwater issued a press release after the article’s publication “in response to market rumors,” in which it said it was continuing its “strategic review process” and “no deadline for its completion has been currently defined.” 

It did not specifically deny the content of the article. 

Regardless of what is happening behind the scenes, it does look as if big changes are coming for the lobster fishery. 

Cory Francis, who is running for Chief of the Acadia First Nation, is the former Commercial Fisheries Liaison Coordinator for the Mi’kmaq Conservation Group of the Confederacy of Mainland Mi’kmaq. He alleges there is much that is not being reported about “corruption” on all sides. 

In an interview with the Halifax Examiner, he said that at one point, there had been talk of the First Nations getting a percentage of Clearwater’s offshore lobster quota, guided by “management conservation for lobster in Atlantic Canada,” and “transitioning that to inshore moderate livelihood Mi’kmaw access, immediately and in the interim, purposed to reconcile a percentage of the Nova Scotia Mi’kmaw rights based fishery.” 

However, Francis alleges that this was quashed by Membertou, which then went ahead on its own to purchase two Clearwater offshore licences itself. 

Francis believes that there is an agenda to “sell out the inshore fishery into an overall corporate entity.” 

“Inshore fishermen are scared shitless,” he says. “And they should be. They really should be.” 

Next — Part 3: What are the prospects for the Atlantic lobster fishery?

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