Nova Scotia

'Moderate livelihood' fishermen must operate during commercial season, DFO says

Ottawa will not license any Indigenous "moderate livelihood" fishery in Atlantic Canada unless it operates within the commercial season, the Department of Fisheries and Oceans said Wednesday, siding with a key demand from the region's commercial fishing industry, while angering Indigenous leaders.

Sipekne'katik chief urges bands in Atlantic Canada to reject Ottawa's position

The Department of Fisheries and Oceans issued its position on the same day Sipekne'katik First Nation took back possession of more than 200 traps seized by DFO last fall. (Paul Withers/CBC)

Ottawa will not license any Indigenous "moderate livelihood" fishery in Atlantic Canada unless it operates within the commercial season, the Department of Fisheries and Oceans said Wednesday, siding with a key demand from the region's commercial fishing industry, while angering Indigenous leaders.

The statement is a major development in the dispute over treaty rights-based fishing that sparked violence last fall when the Sipekne'katik band launched its own self-regulated 'moderate livelihood' lobster fishery.

The fishery in St. Marys Bay in southwest Nova Scotia took place outside the commercial season, angering other fishermen who said it was both unfair and bad for conservation.

"Seasons ensure that stocks are harvested sustainably and they are necessary for an orderly, predictable, and well-managed fishery," Fisheries Minister Bernadette Jordan said in a statement, confirming a CBC News report earlier in the day.

"In effort-based fisheries such as lobster, seasons are part of the overall management structure that conserves the resource, ensures there isn't overfishing, and distributes economic benefits across Atlantic Canada."

WATCH | The history of the Mi'kmaw fishery:

Tell us what you think!

Help shape the future of CBC article pages by taking a quick survey.

The history of the Mi'kmaw lobster fishery

3 years ago
Duration 9:40
To better understand what has changed - and what has not - since the 1999 Supreme Court ruling in the case of Mi'kmaw fisherman Donald Marshall Jr., CBC Indigenous reviewed two decades of coverage on Mi'kmaw fishing rights.

DFO indicated a willingness to discuss other details with affected First Nation communities.

But Sipekne'katik Chief Mike Sack urged Mi'kmaw bands in Atlantic Canada to reject the federal government's position and told reporters his First Nation will continue to operate its fishery outside DFO seasons in 2021.

"They're trying to divide and conquer and throw a carrot to a band or two and have them sign and just hurt everybody's case. So I hope that no other communities do sign. They don't take that low hanging fruit," he said.

Sack restated his position that the treaty right was upheld by the Supreme Court of Canada's Marshall decision, and accused DFO of trying to divide and conquer the Mi'kmaq.

In 1999, the court affirmed the Mi'kmaw treaty right to fish in pursuit of a "moderate livelihood," but under federal government regulations for conservation.

Ottawa spent half a billion dollars integrating Indigenous bands into the commercial fishery through licence buy-backs and training, but it never defined "moderate livelihood."

Jordan cited part of the Marshall ruling to justify her authority. She noted the Supreme Court said "treaty rights are subject to regulation provided such regulation is shown by the Crown to be justified on conservation or other grounds of public importance."

"That is what we are implementing," Jordan said in her statement.

The department is offering Indigenous fishermen in Nova Scotia a pathway to sell lobster harvested in a moderate livelihood fishery. Right now, that catch does not have DFO's stamp of approval. Without authorization, they can't legally sell their catch to licenced buyers, such as lobster pounds and processors.

Bands that accept DFO's position will receive a moderate livelihood licence that will allow them to sell the catch in 2021. Under provincial rules, only fish products harvested under federal commercial licences can be purchased by shore processors.

The federal government "will balance additional First Nations access through already available licences and a willing buyer-willing seller approach, protecting our stocks and preserving the industry for generations to come," Jordan's statement said.

Sipekne'katik First Nation Chief Michael Sack, right, halted talks with the federal Fisheries Department in December after reaching an impasse. (Paul Withers/CBC)

The Assembly of Nova Scotia Mi'kmaw Chiefs called the government's conditions "unacceptable" and condemned them as part of a "colonial approach" to the rights-based fishery recognized by the Supreme Court.

"DFO continues to dictate and impose their rules on a fishery that is outside of their scope and mandate," said Chief Gerald Toney, the assembly's fisheries lead, in a statement.

The right to a livelihood fishery isn't, and shouldn't be, driven by industry or the federal government, he said. 

"It is something that needs to come from the Mi'kmaq of Nova Scotia. Imposing restrictions independently, without input of the Mi'kmaq, on our implementation of Rights is an approach that must stop."

Mi'kmaw leaders and some academics have insisted the fishery in St. Marys Bay poses no risk to stocks because it is too small. It's a claim the commercial industry rejects.

One organization representing commercial fishermen said the DFO has made public what it had been telling the industry in private.

"This position needs to come from them and they need to come out publicly, more often," said Martin Mallet, executive director of the Maritime Fishermen's Union.

Mallet said commercial fishermen expect the DFO to enforce its rules if bands operate out of season, including pulling traps and "potentially arresting individuals that are not keeping up with the law."

A group representing harvesters in southwestern Nova Scotia said the government's position "can provide certainty" for both Indigenous and non-Indigenous fishermen.

"However, lasting and consistent enforcement that is fair to all harvesters will be critical," the Unified Fisheries Conservation Alliance said in a statement.

The ambiguity over moderate livelihood led to violence last year when several bands launched self-regulated lobster fisheries — all taking place outside of commercial lobster seasons. In October, two facilities storing Mi'kmaw catches were vandalized, including one that was later burned to the ground.

Indigenous harvesters also said hundreds of their traps were pulled by non-Indigenous commercial fishermen. After tensions abated, the DFO pulled hundreds of Mi'kmaw traps out of the water, many bearing band moderate livelihood tags.

On Wednesday, the DFO returned to Sipekne'katik more than 200 traps it had seized last fall.

Sipekne'katik First Nation Chief Mike Sack, shown in October, said Wednesday his band will continue to operate its moderate livelihood fishery outside DFO seasons in 2021. (Pat Callaghan/CBC)

When defending the self-regulated fisheries, the Mi'kmaq point to the huge number of commercial traps in the water compared to those from bands.

The Nova Scotia Seafood Alliance, which represents shore buyers, said that is misleading.

Stewart Lamont of Tangier Lobster said he accepts the treaty right but maintains the fisheries must take place within commercial seasons.

"The lobster biomass is extremely vulnerable during certain months of the year, most particularly late July, August, September, October, when lobsters are going through their annual molt," said Lamont.

"They're literally hungrier than normal. They've taken on a new shell. They are far more readily embraced into a trap."

He said hauling lobster at that time is short-sighted.

"By the same token, they are of far lesser quality. They tend to be soft and medium shell. It's not a premium product."

Commercial lobster fishing season varies across Nova Scotia, in part to maintain a steady supply to the market, and to protect stocks when they are vulnerable.


Paul Withers


Paul Withers is an award-winning journalist whose career started in the 1970s as a cartoonist. He has been covering Nova Scotia politics for more than 20 years.