Nova Scotia Mi’kmaw fishery symbolic of fight for Indigenous self-governance

The chief of Sipekne'katik First Nation in Nova Scotia remembers when the Indigenous fishery first made headlines in the late '90s. 

Chief Mike Sack was a teenager at the time. He recalls the Department of Fisheries and Oceans seizing his father’s fishing boat.

“It just seemed the more people went down and fished, the more DFO was in the area,” recalls Chief Sack.

That was around the same time the Supreme Court of Canada made its 1999 ruling affirming the treaty rights of the Mi'kmaq, Maliseet and Passamaquoddy bands on the East Coast to fish for a "moderate livelihood."

The decision was the final outcome after an appeal by Mi'kmaq fisherman Donald Marshall Jr., of his conviction for fishing and selling eel outside of season with an illegal net without a licence.

“What they did was to take the term in the 1760 and 1761 (Peace and Friendship) treaties of "necessaries",” explains Dalhousie University professor emeritus of law Wayne MacKay, “and did expand it a little bit to say that it would extend to what would today be considered a moderate livelihood.”

“From there it just kind of escalated and tensions rose a bit, and it just changed the dynamics in the towns," says Chief Sack.

The ruling led to outcry from non-Indigenous fishers and eventually the crisis at Burnt Church, N. B., resulting in violent confrontations between DFO officials and Indigenous band members on the water.

Two months after the Marshall decision the Supreme Court clarified its ruling in what's known as 'Marshall II" stating governments could regulate treaty fisheries on grounds such as conservation.

That came after an intervener in the case. The West Nova Fishermen’s Coalition applied for a rehearing, which was denied.

“There were supposed to be federal/provincial conferences to define what (a moderate livelihood) meant,” says MacKay. "And that never happened so the courts kind of inherited the interpretation.”

The conflict eventually subsided, and in 2019, the Esgenoopetitj (Burnt Church) First Nation signed a 10-year fishing agreement with the federal government.

But for Chief Sack, the underlying issue has always remained.

“I think as we got commercial licences as part of the Marshall, and access, there were a lot of non-native commercial fisherman trying to fish with us,” says Chief Sack.

“But even that has not worked out. It was newer territory for some of our people, and we brought (the non-native fishers) on as mentors, but they didn’t really want to teach our people anything, they just wanted to put them on the back of the boat,” he says.

“The static has always been there.”

Twenty-one years after Marshall, that teenager from Sipekne'katik - now the band’s leader – tested the waters again.

Chief Sack stood on the wharf in Saulnierville on Sept. 17 last year to launch the First Nation’s own self-regulated lobster fishery.

“We're not looking for access, we already have access,” he told the crowd before traps were loaded up and boats headed into St. Mary’s Bay.

“When we launched that fishery, it was the first time that we really went and said, ‘we’re going to support our fisherpeople legally,’” says Chief Sack.

He says the First Nation had already been working on its own lobster fishery management plan by then.

“It was a great step forward,” he says, “The way it escalated and the way it went, no, I didn’t expect any of that to happen.”

But the events that followed in southwestern Nova Scotia echoed what happened in New Brunswick two decades earlier.

That October, a lobster pound in Middle West Pubnico was destroyed by arson and there were acts of intimidation, and alleged trap cutting.

Non-Indigenous fishers gathered in a mob outside another lobster pound and held protests at a local DFO office.

Lobster industry groups raised concerns about conservation.

More than 20 arrests and multiple charges arose from the confrontations.

“But for me, what’s hard to swallow is people getting away with doing whatever and not being held accountable,” Chief Sack says.

Despite what happened last year, Sipekne'katik fishers returned to the water this summer –but the tension persists.

“Even to this day, there’s boats out there taking traps, and nothing happening to them,” says Chief Sack.

In August, the Nova Scotia RCMP opened a criminal investigation into a report that nine Mi’kmaq fishing boats were deliberately cut loose from a wharf in southwestern Nova Scotia.

“That is justice that hasn’t been served,” says Chief Sack.

The First Nation had submitted its fisheries management plan to Ottawa, but the DFO continues to seize traps, calling it an “unauthorized fishery.”

The issue is also in the courts once again.

Another First Nation, Potlotek, is seeking an injunction in Nova Scotia court to keep the Department of Fisheries and Oceans from interfering in its self-regulated fishery.

The Unified Fisheries Conservation Alliance has been granted intervener status in the case.

“The fishery is a really interesting and important example of the move to have Indigenous people recognized as having self-government,” says MacKay.

When asked why there hasn’t been more progress in talks with Ottawa to develop a self-regulated Indigenous fisher, Chief Sack shrugs his shoulders.

“I can’t help but think it’s…to keep our people down and keep them in a spot,” says Chief Sack.

“It’s like the residential schools, it’s still going on, we get funded yearly, but it’s the tip of the iceberg for what we actually need.”

“Fishing is just one part of breaking that generational trauma for us,” he says.

“Reconciliation would be actually working with us to accomplish something, to move forward,” he says.

For Chief Sack, that would make all the difference for First Nations on this day, and every other.