The Sipekne’katik First Nation is suing the Nova Scotia government over regulations that oversee fish and seafood sales from fish harvesters to buyers, calling them unconstitutional and an infringement of Mi’kmaw treaty rights.
In the lawsuit, which was filed in Nova Scotia Supreme Court on Feb. 1, the Mi’kmaw First Nation states the provincial Fisheries and Coastal Resources Act and the Fish Buyers’ Licensing and Enforcement Regulations infringe on its members’ constitutionally protected treaty right to earn a moderate livelihood by catching and selling fish.
In particular, the lawsuit states the regulations in question prevent commercial fish buyers from purchasing fish and other seafood from individuals who don’t “hold a valid commercial fishing license issued by Fisheries and Oceans Canada.”
“The effect of these regulatory prohibitions is that members of Sipekne’katik who participate in Sipekne’katik’s livelihood fishery have no meaningful ability to sell the fish they catch,” the lawsuit states.
“These prohibitions do not accommodate the treaty right of Sipekne’katik and its members to fish and sell that fish to support a moderate livelihood.”
Sipekne’katik launched own fishery in Sept. 2020
The Sipekne’katik First Nation launched its own moderate livelihood fishery in Saulnierville, N.S. in Sept. 2020 so band members could exercise their treaty right to earn a moderate livelihood by catching and selling lobster. The First Nation issued its own licenses to band members under its fishery management plan, which was shared with the Department of Fisheries and Oceans.
While Mi’kmaw lobster harvesters with Sipekne’katik were able to catch lobster in St. Mary’s Bay during the fall season, they faced difficulty finding and securing buyers due to the provincial regulations.
“We want to buy and sell our own livelihood lobster so it’s that one little sentence that needs to come out of the regulations and everything will be great,” Sipekne’katik Chief Michael Sack said in a phone interview.
The treaty right to earn a living from the fishery was affirmed in in 1999 by the Supreme Court of Canada in the case involving Donald Marshall, Jr. from Membertou First Nation, who was acquitted of catching and selling eels without a license from the Department of Fisheries and Oceans.
In its decision, the Supreme Court ruled that Marshall had a treaty right to fish for eels and sell his catch under the Peace and Friendship Treaties of 1760-61 signed between the Mi’kmaq, Wolastoq and Peskotomuhkati and the British Crown.
Talks with DFO, Nova Scotia broke down
Shortly after launching its own moderate livelihood fishery, Sipekne’katik chief and council entered into talks with DFO on the implementation of its moderate livelihood fishery but those talks broke down in Dec. 2020. The First Nation was also in talks with Nova Scotia government over the fish buyer regulations.
Sipekne’katik Chief Mike Sack said he and the band council decided to file the lawsuit when talks with the province went nowhere. According to Sack, representatives with the Department of Fisheries and Aquaculture told the First Nation they wanted the issue of moderate livelihood dealt with at the federal level first before it addressed the issue at the provincial level.
“The province took a stance that they’re not going to proceed with anything until it was sorted out federally,” Sack explained.
In a briefing with reporters on Feb. 3, Nova Scotia Premier Stephen McNeil maintained the province’s current position “that the buyer’s license is related to the fishery that is described in the federal Fisheries Act.”
“We believe that’s where it is but Sipekne’katik wants to change that in courts, we’ll respond,” Premier McNeil said.
In the lawsuit, Sipekne’katik is seeking a declaration that the provincial regulations “are of no force or effect in relation to buying fish from Sipekne’katik members who fish as part of the Sipekne’katik moderate livelihood lobster fishery.”
Sack said the court challenge to the provincial regulations is about giving his band members the opportunity to escape unemployment and poverty by exercising their constitutionally protected treaty right.
“We’re looking to building capacity within our community and creating employment because of poverty and such,” Sack said.
“If we’re buying and selling our own lobster, it cuts out that middle man. It creates jobs for our people and we have a right to do so but (the provincial regulations) kind of throws a hurdle in the way to interfere with that,” he added.
The Nova Scotia government has until Feb. 15 to respond to Sipekne’katik’s lawsuit.
