Nova Scotia

Potlotek First Nation sues Nova Scotia over moderate livelihood fishery

The Potlotek First Nation is launching legal action against the Nova Scotia government over the right to sell seafood harvested through a moderate livelihood fishery.

Band was able to catch fish, but regulations prevented it from selling the harvest

Mi’kmaw harvesters from Potlotek First Nation took to the water on St. Peters Bay to launch a moderate livelihood fishery on Oct. 1, 2020. (Brent Kelloway/CBC)

The Potlotek First Nation is launching a legal action against the Nova Scotia government over the right to sell seafood harvested through a moderate livelihood fishery.

The move comes after Sipekne'katik First Nation filed a similar suit earlier this month.

"Our right to a moderate livelihood was affirmed by the Supreme Court of Canada, yet Nova Scotia's regulations prevent us from fully exercising our rights," Potlotek Chief Wilbert Marshall said in a news release Tuesday.

In 1999, the Supreme Court of Canada handed down its decision in the case of Mi'kmaw fisher Donald Marshall Jr., of Membertou First Nation. The landmark case affirmed the Mi'kmaw treaty right to hunt, fish and gather in pursuit of a moderate livelihood.

Fishery launched in the fall

Potlotek launched its first self-regulated lobster fishery last October. It ran through to December.

The trouble came in selling the catch.

Under provincial regulations, it's prohibited to buy fish caught without a commercial fishing licence issued by the federal Fisheries Department. It's also prohibited to buy fish caught outside federal or provincial regulations relating to size, season and quota.

"The province sent letters to all the buyers telling them not to buy our product, any fish caught by our moderate livelihood fishermen," said Wilbert Marshall.

Requests to work with the Nova Scotia government on the regulations have gone unanswered, according to the news release issued by the Assembly of Nova Scotia Mi'kmaw Chiefs.

"I think what it comes down to is politics. The province is scared to make the call," said Marshall.

Federal responsibility

Premier Stephen McNeil said earlier this month the Nova Scotia government has a "different point of view" on its responsibilities in the matter. 

"We've said all along that [a] buyer's licence is related to a fishery that is described in the Fisheries Act laid out by the national government," McNeil told reporters in response to the court action filed by the Sipekne'katik First Nation.

Potlotek's livelihood fishery plan includes a second lobster fishing season to run concurrent with the commercial lobster fishery in the spring.

"Regardless, we're going to be out there selling our product," said Marshall. "It would be nice if they worked with us, though."

Fishing industry reaction

Meanwhile, others in the industry are careful not to take sides.

"It's a complicated question, for which I do not have the answer," said Stewart Lamont, managing director of Tangier Lobster Company.

As a licensed buyer, he stressed that he must comply with the licensing requirements imposed by the provincial government.

He also made it clear that he'd prefer to see the matter settled at the negotiating table, as opposed to the courts.

"It is the government of Canada whose jurisdiction is on harvesting issues, and ultimately they have to negotiate ... with First Nations and with non-Indigenous commercial fishermen to come to the kind of compromise that the industry badly needs," he said.

Over the past two decades of fruitless negotiations, buyers have not been welcomed at the table.

"We're not seen as part of that process" said Lamont. "That's the real irony. Now all of a sudden we are thrust into the middle of a debate and a dispute that really hasn't concerned us."

If changes are made, Lamont said he believes any moderate livelihood fishery must be seasonal and based on conservation.

Lobster council 'supports ongoing dialogue'

The Lobster Council of Canada declined an interview with CBC News on Wednesday.

"The Lobster Council of Canada (LCC) supports ongoing dialogue and negotiations between stakeholders and rights holders to resolve the management and regulation of East Coast fisheries for First Nations and commercial harvesters," wrote executive director Geoff Irvine in a statement.