Canada

Mi’kmaq fishers won at the Supreme Court. But they're still fighting for their livelihoods.

Cut traps. Threats of violence. Twenty-one years after a landmark ruling, the fight over treaty rights in Nova Scotia rages on.

Fishermen store caught lobster at Saulnierville wharf. (Photograph by Aaron McKenzie Fraser)

The wharf at Saulnierville, where Mi’kmaq and non-Indigenous fishers clashed this summer (Photograph by Aaron McKenzie Fraser)

When Michael Sack, chief of Nova Scotia’s Sipekne’katik First Nation, handed out Mi’kmaq lobster licences to fishers on Sept. 17, the first tags went to Randy Sack.

“My dad would be proud of me right now,” Sack said as he accepted his tags in front of a crowd at the wharf in Saulnierville, on St. Marys Bay. “I’m feeling pretty good, yep.”

Sack’s dad was Donald Marshall Jr., the man who came to personify the Mi’kmaq struggle for justice.

Sack is now engaged in the same cause that his father took up—a fight for the right to fish, a right set out in treaties their ancestors signed with the British 260 years ago.

After he got his tags, Sack and his fellow Mi’kmaq fishers went out on St. Marys Bay, where they were greeted by non-Indigenous fishers who were determined to stop them, seizing the traps as soon as they were dropped. It set off weeks of conflicts, with non-Indigenous fishers trying to intimidate the Mi’kmaq on the wharf and the water.

Chief Sack (right) and Randy Sack (Andrew Vaughan/CP)

Chief Sack (right) and Randy Sack (Andrew Vaughan/CP)

Sipekne’katik launched its fishery on the 21st anniversary of the day, in 1999, that Sack’s father won a landmark fishing-rights case at the Supreme Court of Canada—the Marshall decision, which has changed everything for the Mi’kmaq.

Sack, 34, grew up with his mother and her people in Sipekne’katik, but he spent his summers fishing eels with his father in Cape Breton, N.S. “He always made me feel that we were safe doing it, just having fun eeling,” he said in an interview.

Marshall was fishing for eels with his wife, Jane McMillan, in Pomquet Harbour in 1993, when they were nabbed by Department of Fisheries officers for fishing without a licence. “I don’t need a licence,” Marshall told the officers. “I have the 1752 treaty.”

“Everyone needs a licence to fish,” said the officer.

The officer was wrong and Marshall was right, but it took six years to prove it in court. In his trial, he admitted catching 463 lb. of eels and selling them for $787.10, but argued that 18th-century treaties established a Mi’kmaq right to hunt and fish. The Supreme Court of Canada agreed, finding that the treaties gave the Mi’kmaq the right to sell fish, sufficient to earn a “moderate livelihood,” subject to regulation for the purposes of conservation. What constitutes a “moderate livelihood” has never been settled.

Last year, McMillan published a book about her husband’s struggle—Truth and Conviction: Donald Marshall Jr. and the Mi’kmaw Quest for Justice. She says Marshall was reluctant to go to court in the eel-fishing case because he had spent enough time in courtrooms by that point in his life. Marshall was already a household name in Nova Scotia when he was caught fishing eels because he had spent 11 years in prison for a crime he didn’t commit. In 1971, he and his friend, Sandy Seale, both 17, got into a tussle with Roy Ebsary, an older white man, in a park in Sydney, N.S. Ebsary knifed Seale, who was Black, but convinced the police that Marshall committed the crime. Police bullied witnesses into giving false testimony, and he was convicted and imprisoned, all the while loudly protesting his innocence.

A public inquiry eventually showed that a racist justice system had railroaded Marshall and continued to smear him even when he was exonerated. It led to reforms to Nova Scotia’s justice system, including, crucially, a program at Dalhousie University to encourage Black and Indigenous Nova Scotians to become lawyers. Some of the lawyers who graduated from that program were on the team that won Marshall’s fishing case at the Supreme Court.

The Mi’kmaq have pushed hard to take advantage of their newly recognized rights, nowhere more effectively than in Marshall’s home community, the Membertou First Nation on the outskirts of Sydney, which was once an impoverished collection of tarpaper shacks.

The business-savvy leadership of Membertou seized on fishing, bargained hard with the federal government, and used fishing revenues to get into other businesses, avoiding the governance and economic problems that continue to dog Sipekne’katik. The decision “not only invigorated pride in Mi’kmaq identity but also [got] people to gather together to collectively change the quality of their lives,” says McMillan. “They rose up and became activists and entrepreneurs, and nothing anymore was going to hold them back.”

Chief Sack. (Photograph by Aaron McKenzie Fraser)

Membertou led the way, but the fishery created opportunity for Mi’kmaq and Maliseet throughout Atlantic Canada.

In the days after the Marshall decision in 1999, Indigenous fishers set traps in the water at Burnt Church, N.B. When non-Indigenous fishers responded with violence, the Department of Fisheries and Oceans fought the Mi’kmaq on the water, seizing boats and lobster traps, and sent officials around the region to make deals with chiefs, trying to head off violence.

Since then, the department has spent more than $500 million buying commercial licences and gear for First Nations in Atlantic Canada in an effort to avoid the kind of unregulated Indigenous fishery seen in Nova Scotia this summer. A study from the Macdonald-Laurier Institute last year found that all those licenses have paid off in employment opportunities for Indigenous people, and revenue: $152 million a year by 2016.

A fisherman prepares lobster traps at the Saulnierville wharf. (Photograph by Aaron McKenzie Fraser)

A fisherman prepares lobster traps at the Saulnierville wharf (Photograph by Aaron McKenzie Fraser)

Membertou has been at the forefront, with lucrative lobster and snow crab fisheries. Last month, the community took another big step, buying two offshore lobster licences from seafood giant Clearwater for $25 million.

It is the culmination of a multi-generational struggle for treaty rights. Junior’s father, Donald Marshall Sr., the grand chief of the Mi’kmaq, a gentlemanly figure, established Treaty Day in 1986, convincing white politicians to recognize the agreement, long ignored, at the heart of the relationship.

The grand chief before Marshall Sr., Gabriel Sylliboy, went to court in 1928 after he was convicted of trapping muskrats out of season. The judge ruled that the treaties were not real treaties, because the “savage’s rights of sovereignty even of ownership were never recognized.” Marshall Jr. proved that Mi’kmaq oral history was correct and the courts were wrong, but hard-won legal victories have led to new battles on the water.

Non-Indigenous fishers see the Mi’kmaq as a threat to their livelihoods, and from Burnt Church on, they have pushed back, harassing and intimidating Mi’kmaq going after lobster.

When Membertou set some lobster traps in Sydney Harbour under a food and ceremonial licence last year, so they could serve the crustaceans at their annual summer games, local fishers made it clear how far they would go to keep the Mi’kmaq from taking lobster.

John Paul, a Membertou fishing captain, said North Sydney lobstermen openly threatened him. “They’d get on the radio, they’d sing like, ‘Poor old Kaw-liga, he never got a kiss’ [a lyric from a Hank Williams song]. Stuff like that. It’s just ridiculous. In this day and age.” When Paul’s crew hauled their traps, one of the buoys had a flaying knife stuck in it, and the day after they fished, the band’s $300,000 boat burned at the wharf.

Paul says non-Indigenous fishers often steal lobster from Mi’kmaq traps. “They’re constantly hauling our gear, constantly tampering with our gear. It’s a quiet thing but you know it’s happening. You got three strings next to each other and the two non-native strings are hauling lobster and the native string is empty day after day.”

Paul is determined to keep fishing: “They’ve been trying to starve us for hundreds of years and they’ll never beat us, man.”

When Sack and other Mi’kmaq set lobster traps in Saulnierville, N.S., this summer, non-Indigenous fishers pulled in their gear in a protest of what they see as an illegal, out-of-season fishery, while Fisheries and Oceans Canada (DFO) officers and the RCMP stood by.

The livelihood fishery seems to follow the law laid down by the Marshall decision, but the lack of federal rules has created a grey zone, because the fishery is regulated by Sipekne’katik, not the DFO.

Paul, who went down to Saulnierville to show his support for the Sipekne’katik fishery, was alarmed by the intimidation from non-Indigenous fishers. “The DFO and the RCMP are there, but they ain’t doing a thing. They’re just watching, because they don’t know. There’s no guidelines.”

Non-Indigenous fishers acknowledge that some in their industry are racist against Indigenous people, but others are just alarmed by what the newcomers to the fishery will mean for their businesses.

“Anybody whose livelihood is threatened or perceived to be threatened is probably going to have the same reaction,” says Ervin Touesnard, a fisherman in River Bourgeois, N.S. “At this point, that’s our point of view. Our livelihood could be threatened here because there is no specific number of traps that they’re allowed to set, and no specific season when they’re allowed to set them, and putting traps in the water at this time of year, when lobsters are just finished moulting, is not the same as fishing in the spring when we have to fish.”

Saulnierville wharf at dawn (Photograph by Aaron McKenzie Fraser)

Since the collapse of the cod fishery as a result of corporate offshore overfishing, lobster is the only significant source of income for independent inshore fishers. It is carefully managed, much more so than in Maine, for instance, and it is lucrative.

Nova Scotia’s lobster fishery was worth $771 million in 2018. The best fishers make up to $400,000 a year. They are rugged, competitive people who do dangerous work for a lot of money, hauling traps on the North Atlantic in December gales.

Touesnard says the culture of the fishery is such that new entrants provoke resistance. “Fishermen are highly territorial,” he said in an interview. “Where my grandfather fished, or my great-grandfather fished, is probably where I’m going to be fishing, too. And if you step out of these boundaries, you are going to find that maybe you shouldn’t have, because your traps are more than likely going to go missing if you venture into somebody else’s territory.”

Fishers go out at the beginning of the season and drop their traps, and check them every day, hauling them to the surface by a buoy. Anyone who wants to can easily sabotage a rival by either hauling the traps and stealing the lobsters, or by cutting the buoys so the traps are lost.

Conflicts over territory and lobster thieving regularly lead to violence. This spring, as Mi’kmaq and non-Indigenous fishers struggled for control of the lobster of St. Marys Bay, many Nova Scotians have been reading the posthumously published final book of beloved Cape Breton writer Silver Donald Cameron, who died in June. Blood in the Water tells the story of Phillip Boudreau, who was shot at and rammed by fishers who believed he had been stealing their lobsters off Isle Madame in 2013. His body has never been found.

Cameron’s book reveals a community struggling to deal with Boudreau, a habitual criminal who stole from and threatened his neighbours. In isolated fishing communities, people can’t rely on distant, understaffed RCMP detachments and Fisheries officers who are often afraid of violent poachers and fishers. “The root causes of the tragedy include a systematic failure of the legal system itself,” Cameron concluded.

The nature of the lobster fishery—all those unattended traps—and the under-policed communities where the fishers live, creates an environment where scores are often settled outside the legal system.

This means that Indigenous fishers frequently find themselves appealing for help from a legal system that, as Marshall’s experience shows, they cannot trust to dispense colour-blind justice.

Sipekne’katik First Nation members stand as non-Indigenous boats protest the fishery launch on Sept. 17 (Andrew Vaughan/CP)

Sipekne’katik First Nation members stand as non-Indigenous boats protest the fishery launch on Sept. 17 (Andrew Vaughan/CP)

Colin Sproul, president of the Bay of Fundy Inshore Fishermen’s Association, represents the fishers who have been protesting against the Sipekne’katik fishery. Sproul says the fishers are afraid of the effect of Mi’kmaq fishing during the breeding season, when lobsters are moulting, and they are less valuable. The fishers here see Mi’kmaq hauling lobster that they won’t be able to catch in the commercial season, and selling them cheap.

The Mi’kmaq point out they are fishing a tiny fraction of the number of traps set by commercial fishers, and say they have a management plan grounded in a deep cultural commitment to conservation. And, most of all, they say, it is their right.

Sproul says the DFO has created the crisis, because 21 years after the Marshall decision, it has not created a structure for a livelihood fishery. “The case wasn’t against Donald Marshall’s nation,” he says. “It’s Donald Marshall Jr. versus the government. And Donald Marshall won the right as an individual Mi’kmaq person.”

The DFO has responded to that decision by encouraging entry into the commercial fishery on a communal basis, with First Nations holding the licences, rather than individual Mi’kmaq. “[The DFO’s] only intention is to do more of the same,” says Sproul. “We have to have a settlement here to finally reconcile it.”

Chief Michael Sack says Sipekne’katik doesn’t want the DFO to set up a structured system. “We weren’t looking for the DFO to create that,” he says. “That’s why we did it on our own. With the band doing it, it’s a better starting point for a lot of our members.”

But since his community launched its fishery, non-Indigenous fishers have seized their gear, preventing the Mi’kmaq from landing many lobsters. “The guys and girls who are out here are fishing with very, very used traps now,” says Chief Sack. “They’re just not catching as much. They’re all trying to get back above board to get back at it.”

Randy Sack has been preparing his gear to go out fishing again. He is frustrated. “I try to get on with most of them, but it comes to a point that you can only take so much. Like, your gear getting cut, that costs a lot of money. You can only take so much.”

But he says the Mi’kmaq won’t let the non-Indigenous fishers stop them.

“We’re not going to stop fishing until we want to stop.”