A federal negotiator for the Department of Fisheries and Oceans has been meeting with First Nation leaders in the Maritimes and the Gaspé region of Quebec for the past seven months to determine what a “moderate livelihood” means when it comes to the commercial fishery.
J.B. (Jim) Jones, a longtime public servant with DFO, was appointed as the lead federal fisheries negotiator by DFO Minister Dominic LeBlanc in Nov. 2017.
According to a DFO spokesperson, Jones has met with all First Nations in the region except one since his appointment. To date, no new agreements have been signed, the spokesperson wrote in an email.
“This is part of an ongoing process that dates back to, you know, the Marshall decision more than a decade ago,” Morley Knight, Assistant Deputy Minister of Fisheries Policy with DFO, said in a recent interview.
This is the second time in 18 years that DFO has appointed a federal negotiator to meet with Atlantic First Nations to negotiate agreements on access to the commercial fishery. Those negotiations began in 2000 shortly after the Supreme Court of Canada ruled in Sept. 1999 that the Mi’kmaq, Wolastoqiyik (Maliseet) and Peskotmukatik (Passamaquoddy) have a treaty right to earn a moderate livelihood from the commercial fishery.
R v. Marshall
In Aug. 1993, Donald Marshall, Jr., a Mi’kmaq from the Membertou First Nation, N.S. was charged at Pomquet Harbour, N.S. with catching and selling eels without a license during a closed season. During his trial in 1995, Marshall argued that the 1760-61 Peace and Friendship treaty signed between his Mi’kmaw ancestors and British representatives guaranteed his right to catch and sell fish for a living.
Marshall was initially found guilty for violating federal fishery regulations at trial and fined. However, he appealed to the Supreme Court of Canada which overturned his conviction.
Immediately following the ruling, Mi’kmaw fishermen from Esgenoopetitj First Nation, N.B. and Indian Brook First Nation, N.S. exercised their newly affirmed treaty right by dropping lobster traps in Miramichi Bay in New Brunswick and the Bay of Fundy in Nova Scotia.
Their response to the Marshall ruling led to confrontations between Mi’kmaw fishers and non-indigenous fishers as well as DFO conservation officers between 1999-2002.
In 2000, the federal government announced what it called the Marshall Response Initiative in which it offered the Mi’kmaw and Wolastoqiyik (Maliseet) communities in the Maritimes and Quebec interim fishing agreements to provide access to the commercial fishery.
The interim agreements included money for First Nations to purchase fishing boats and gear. The agreements also offered funding for training and provided annual fishing licenses for various species, including lobster, snow crab, scallops and tuna. Most First Nations in the region signed the interim agreements with DFO.
“I think if we look back over the past, let’s say the last decade and a half, we saw a continual growth in the level of access and participation by Indigenous communities in the Maritime provinces and Quebec,” Knight said.
“That level of access had greater impacts and benefits on some communities than others, the economic benefits for the level of the fishery,” he added.
“We’re looking for something different.” – Chief Hugh Akagi
It’s the first time the Peskotomukatik (Passamaquoddy) in New Brunswick are being included in discussions with DFO regarding their treaty right to earn a living from the commercial fishery.
According to Chief Hugh Akagi, discussions regarding the commercial fishery are being combined with ongoing talks with the Crown-Indigenous Relations and Northern Affairs Canada to officially recognize the Peskotomukatik in Canada. Chief Akagi said the two sides are close to finalizing a framework agreement to officially start those negotiations.
“It is a good feeling in a way. It’s just that it’s long overdue and playing catch up to all of the things that have been done, it’s overwhelming,” Chief Akagi said.
“We’re looking for something different. We’re looking for something that honours and respects the conservation aspect that everyone talks about,” he added.
The Assembly of Nova Scotia Mi’kmaq Chiefs, which represents the 13 Mi’kmaw First Nations in the province, has met with the DFO negotiator twice, Membertou Chief Terry Paul said.
“There seems to be a genuine effort from Canada to undertake the important discussions of a moderate livelihood fishery,” Chief Paul, who is responsible for the fisheries portfolio with the assembly, said.
According to Chief Paul, the assembly has established a steering committee to work with Jones on defining a moderate livelihood. The steering committee includes the assembly’s own lead negotiator, lawyers and the executive director for the Kwilmu’ku Maw-klusuaqn Negotiation Office.
“We’re still working out the rules on the steering committee as to how we’re going to negotiate the terms of a moderate livelihood fishery,” Chief Paul explained.
Moderate livelihood means “you don’t go hungry.” – Chief Terry Paul
For both Chief Paul and Chief Akagi, the main objective for this round of negotiations with DFO negotiator Jim Jones is defining what is a “moderate livelihood” for the Mi’kmaq, Wolastoqiyik and Peskotomukatik.
“In my mind, it’s like where families (are) able to make a comfortable living as a result of the fishery,” Chief Paul said.
“You don’t go hungry,” he added. “This is a way of moving that poverty line to a level where it, at least, equates to Canada’s standard of living.”
For Chief Akagi, the moderate livelihood definition should be comparable to what a non-Indigenous fisherman makes from the same access to the commercial fishery.
“When they tell me nobody knows what a moderate livelihood means, I suggest they just take a look at fishermen because if there’s a fisherman in my territory that made over a million dollars last year, that’s a good place to start,” Chief Akagi said.
“That type of conversation is sort of more humour than reality but I’m trying to tell them the sky’s the limit. You shouldn’t have any problem setting down a moderate livelihood for individuals.”