The Sipekne’katik First Nation in Nova Scotia is suing the federal government over treaty right infringement after officers with the Department of Fisheries and Oceans seized lobster traps belonging to its band members.
Sipekne’katik alleges that DFO fishery officers hauled lobster traps belonging to two of its band members from waters in St. Mary’s Bay near Saulnierville, N.S. July 18-19.
In a statement of claim that was filed at Nova Scotia Supreme Court in Halifax on July 24, Sipekne’katik states that its members have a treaty right to fish for a moderate livelihood which “means they have a right to sell the lobster they catch.”
The Mi’kmaw First Nation also asserts it has a right to maintain, manage and regulate its own fisheries under the United Nations Declaration on the Rights of Indigenous Peoples.
According to the statement of claim, Sipekne’katik’s fishery guardians witnessed DFO officers aboard a Coast Guard vessel haul lobster traps belonging to James MacDonald, a band member, out of the waters in St. Mary’s Bay on July 18.
When they approached the coast guard vessel, one of the guardians informed DFO officers that MacDonald “was fishing under the authorization of Sipekne’katik First Nation” and advised the fishery officers to return the traps to the water or face legal action.
According to the claim, one of the fishery officers replied “that he was confiscating the traps anyway because DFO does not recognize Sipekne’katik’s right to fish because it was not authorized.”
The claim also describes another incident in which a Sipekne’katik fisheries guardian witnessed DFO officers pulling traps belonging to band member Sheyanne Francis in waters near the mouth of the Sissiboo River near Weymouth, N.S. on July 19.
The claim states Sipekne’katik’s fisheries manager, Michael McDonald, contacted the DFO office in Meteghan, N.S., regarding the seizures. McDonald stated that an officer in charge at that location said he directed his officers to confiscate the gear because the department doesn’t recognize Sipekne’katik’s authority to manage its own fisheries.
Sipekne’katik First Nation accuses the federal government of preventing its members from exercising their treaty right to catch and sell fish by pulling their lobster traps.
Sipekne’katik also claims that DFO is trying to enforce a communal food, social and ceremonial lobster harvest licence that was written “without first having meaningful consultation.”
The First Nation is seeking damages which include pain and suffering, loss of income earned from selling the lobster and out-of-pocket expenses for confiscating the fishing gear.
DFO held media briefing on July 10
On July 10, officials with DFO Maritimes held a media briefing in which they explained how the department intends to enforce lobster fishing activity in St. Mary’s Bay in southwestern Nova Scotia this year.
According to Mike Leonard, the DFO Maritimes regional director of Indigenous Fisheries Management, First Nations that have DFO-approved licences for food, social and ceremonial purposes will be permitted to set lobster traps.
Leonard also explained First Nations that have what department officials call “understandings” with DFO will be permitted to catch and sell lobster to earn a moderate livelihood so long as the fishing activity takes place during established commercial fishing seasons in the region. The “understandings” are not signed agreements between DFO and First Nations, Leonard said.
“Fishing activity occurring without a required licence or not in compliance with conditions of a licence is subject to enforcement action, Tim Kerr, director for conservation and protection for DFO Maritimes, said in the briefing.
“Our fishery officers must enforce the Fisheries Act and that includes taking enforcement action when individuals are harvesting without a DFO-issued authorization,” Kerr said.
According to DFO, nine First Nations in Nova Scotia and Prince Edward Island have DFO-approved “understandings” for a moderate livelihood fishery. They include:
- Acadia First Nation, N.S.
- Annapolis Valley First Nation, N.S.
- Bear River First Nation, N.S.
- Eskasoni First Nation, N.S.
- Glooscap First Nation, N.S.
- Pictou Landing First Nation, N.S.
- Potlotek First Nation, N.S.
- Lennox Island First Nation, P.E.I.
Additionally, DFO Maritimes has signed seven “Rights Reconciliation Agreements” with eight First Nations and one tribal council in New Brunswick, Prince Edward Island and Quebec that address the moderate livelihood fishery. They include:
- Abegweit First Nation, P.E.I.
- Elsipogtog First Nation, N.B.
- Esgenoôpetitj FIrst Nation, N.B.
- Mi’gmawe’l Tplu’taqn Incorporated, N.B.
- Peskotomuhkati Nation at Skutik, N.B.
- Gesgapegiag First Nation, Que.
- Gespeg First Nation, Que.
- Listuguj Mi’gmaq Government, Que.
- Wolastoqiyik Wahsipekuk (Maliseet of Viger First Nation), Que.
The treaty right to fish to earn a moderate livelihood applies to all 35 First Nations in Nova Scotia, New Brunswick, Prince Edward Island and the Gaspé region of Quebec.
DFO issued FSC licence to Sipekne’katik
In an email sent on Friday, a DFO spokesperson confirmed that Sipekne’katik was issued a food, social and ceremonial (FSC) lobster licence for the 2023-24 season on May 31.
Ku’ku’kwes News obtained a copy of a letter dated July 5 that was written by the Sipekne’katik Chief and Council to DFO Maritimes as well as a copy of the DFO-issued FSC licence that was issued to the First Nation.
According to the FSC licence, the maximum number of traps Sipekne’katik is permitted to use is 1,000. The maximum amount of lobster that may be caught is approximately 20,000 kilograms in total. A maximum of 200 lobsters per day per harvester may not be exceeded in Lobster Fishing Area (LFA) 34.
In the July 5 letter, Sipekne’katik Chief and Council informed DFO that the lobster allocation in the FSC licence “is an infringement of our Mi’kmaw right to fish.”
“Such infringement may only be justified for conservation purposes,” the letter states.
“Considering how many non-native commercial licences are being fished in our unceded territory, and the amount they collectively take from the resource historically and currently in our unceded territory, you will never be able to justify any infringement of our right to harvest lobster,” the letter states.
Sipekne’katik First Nation Chief Michelle Glasgow did not respond to a request for comment regarding the lawsuit.
DFO declined to comment on the lawsuit while it’s before the courts.