Jordan Heath-Rawlings: I’m going to start today’s episode with what should have been a simple story. In mid-September, a self-regulated lobster fishery run by First Nations began to fish the waters off the coast of Nova Scotia. The fishermen were doing this because, well, because they have the right to run a modest lobster fishery out of season.
These are treaty rights that were upheld at the Supreme Court of Canada. The Indigenous lobster fishers were exercising theirs, and that should have been it, it should have been the whole story and it never should have been a big story, but here we are. And here is some of what happened when they launched their fishery.
Female reporter: Chased him right into the water to last that these guys try and tie up. These guys had to turn around and come in and they didn’t even get to go out and check your gear. And these guys have gas cans on the back of the boat. They could have killed them.
This was the scene on Sunday. Dozens of commercial fishermen surrounding Mi’kmaq lobster boats, cutting lines and hauling up lobster traps. As soon as the Mi’kmaq drop them, Mi’kmaq speed boats quickly came to assist, trying to take back the traps off the commercial fishing boat.
Jordan Heath-Rawlings: Protests and threats and intimidation and near violence. At least three boats have now suspicious caught fire, including one just this week. And yeah. So here we are, again, with Indigenous people facing oppression and protest for, well, to quote the law upheld by the Supreme court, attempting to earn a moderate livelihood. So why did things escalate like this? Who let the situation get out of control? What role does the actual law play here? And what do events like these say about a country that is supposed to be grappling with truth and reconciliation, but instead grapples with this kind of stuff every few months or so, basically forever?
I’m Jordan Heath-Rawlings, and this is The Big Story. Trina Roache is part of the investigative unit at APTN, and she’s been covering this story since before the latest flare up. Well, before that. Hi, Trina,
Trina Roache: Hi Jordan, how are you?
Jordan Heath-Rawlings: I’m doing very well. Thank you for taking the time to provide some context today.
Trina Roache: No, you know what, I’m happy to do it for this story.
Jordan Heath-Rawlings: Well, why don’t before we get into, to what’s been going on, on the East coast recently, can you take us back? I think more than 20 years now and kind of talk to me about the law it’s at the basis of what’s going on in Nova Scotia.
Trina Roache: Yeah. Like we can go back even further actually to when Donald Marshall Jr. went fishing. So Donald Marshall Jr. who had already had an experience with the justice system here, because he had been wrongfully convicted of murder. When he was released, he was turning his life around and was catching eels and asserting his treaty, right to do that. And he went fishing for eels out of season without a license, and then DFO seized his gear and, and charged him with illegal fishing.
So that was in the early nineties. I want to say, 93, 1993. So he goes back before the Supreme Court a second time. This time, you know, asserting his treaty rights and defending his treaty rights. This treaty of 1760 to 61 are the treaties that allow, that protect the Mi’kmaq right to trade and barter and traffic, you know, goods that they’ve been, you know, hunting and gathering and fishing.
So that’s kind of the nut. So in September of 1999, the Supreme Court comes back and says, yes, Donald Marshall Jr. is right. He has these treaty rights. They uphold these treaty rights. And then, and then of course, sorta all hell broke loose after that because the Mi’kmaq took that victory and went right out on the water. And we had the lobster wars in Burnt Church and in 2000. I started with APTN in 2001 and it was still going on. So I spent my summer up there. There was all these skirmishes, you know, I mean, we all remember that iconic footage sort of DFO running over a Mi’kmaq boat. There was just chaos on the water.
There was helicopters over the community and I mean, the Mi’kmaq at that time were, you know, really they were going out in dories with like 10, 12 traps. And then the non Mi’kmaq fishermen, I remember them standing on the wharf and they would say, they’re going to ruin the lobster stocks. That was the battle cry at the time. And 21 years later, here we are. And it’s still what you hear from commercial fishermen 21 years later. So there’s been a real lack of education for the commercial fishery, for people who are involved in that. and so, you know, we have this victory, we have a decision that’s never really implemented by Canada, and this is where we are 21 years later. We’re now we have Sipekne’katik First Nation asserting the right again, and DFO has no sort of way to handle it.
Jordan Heath-Rawlings: When you say the Supreme Court decision has never really been implemented, what does that mean? And what would implementation look like?
Trina Roache: Well, I think it would look like what they’re doing right now.
It would look like what this Sipekne’katik band is doing. They came up with a management plan, they presented it to DFO. They said, this is what we’re going to do. So there’s, you know, they’re providing that sort of checks and balances and saying, we’re going to fish. We’re gonna, we’re gonna make some money.
Jordan Heath-Rawlings: Right, so what are they doing actually, I’m sorry to interrupt you, but just to set the scene for people who haven’t been following this story, what have they been doing for the last month or so?
Trina Roache: They kicked off their livelihood fishery down in place called Saulnierville. So a wharf down there in St. Mary’s Bay, which is, you know, sort of like it’s in the western part of the province. If you sailed out, you would sort of, you know, you could hit the Bay of Fundy. If you keep going and you hit the Gulf of Maine and it’s very much like Acadian territory down there. So the commercial fishermen, maybe not all, but generally are, like Acadian fishermen from those Acadian communities down there.
So Sipekne’katik has, they did a ceremony and they kicked off their moderate livelihood fishery. They come up with a management plan, they have seven licenses, but when they kicked it off, I still think it’s only three that they’re fishing right now. And so there’s, 50 traps a boat. And so they go out on the water there, and the ceremony itself was very celebratory.
It’s very exciting. It’s individual fishermen who are part of the band. You know, they’ve invested in this, it’s their traps. They’re buying, it’s their boats, and they go out on the water. And that afternoon is when you see the commercial fishermen in protest of this and out on the water and then coming in very close and circling around and cutting the traps.
And so that sort of back and forth kept going. I mean, even now, I mean, we just had a boat burned, right? So a Mi’kmaq boat that was burned yesterday or before at some point before yesterday, overnight. And so, you know, there’s a lot of tension and when I say, cause you asked like, you know, the Supreme court decision.
You know what do I mean by it’s not implemented if Donald Marshall Jr. was alive today and went fishing eels again, without a license out of season, he could be charged again by DFO. DFO has kind of come up with no rules or regulations. They still sort of consider it. And you heard this a lot from that the commercial fishermen who are protesting this fishery saying you can’t have a commercial fishery outside of commercial season. And even that was an early message from DFO when this all started. Now they have come out, the minister did come out and sort of backtrack and say, well, yes, it’s not an illegal fish. She had started to clarify that it’s not an illegal fishery
Jordan Heath-Rawlings: If it’s not illegal, how does that term end up in this discussion?
Trina Roache: Because they’re considering it because early on, certainly in the end, like I said, the commercial, you know, side, that’s protesting this fishery. They’re looking at it as a commercial fishery that’s happening outside the commercial season, but it’s not. That’s like a third fishery. So there’s the commercial season. There is the, it’s kind of complicated, this is why it’s complicated. This is why when people read a headline, they don’t know what’s going on.
Jordan Heath-Rawlings: This is why we wanted to talk to you. So no, by all means get to, get nerdy on the details because this is what I need to know.
Trina Roache: S o we have the commercial fishery, which the Mi’kmaq do have access to that.
And that’s been very successful for a lot of bands. Like it’s created money and that’s great. And then we have the food, social ceremonial fishery, and that’s just across Canada. That’s for every all, like all Aboriginal people across Canada. This is not specific to the Mi’kmaq. And so that, that is catch. That could be, it could be lobster. It could be another species, but for lobster, but you can’t, you can’t sell that catch.
Jordan Heath-Rawlings: It’s for subsistence.
Trina Roache: It’s first, yeah, they were ceremony or just, yeah, like just to eat. And so that fishery actually happens in that Bay. Right now, like that would be happening. The difference with the moderate livelihood fishery and Sipekne’katik is not the only one to do this. I’ll get to that in a sec. But that moderate livelihood fishery means you’re just selling the catch so that it’s the selling of it. So for the commercial fishermen, as soon as the Mi’kmaq money, they view it as a commercial fishery that’s just like unregulated and, therefore illegal. And even DFO is kind of having that language and they were, you know, there’s this threat, like the scare off buyers. You know, and, but the problem is for a moderate livelihood, you have to sell, you have to make money, right? That’s implied. That’s where there’s this sort of, there’s this sort of gap and that’s why Sipekne’katik, like they’ve been waiting for DFO for 21 years. Bands have been waiting for DFO to sort of, you know…
Jordan Heath-Rawlings: To set up the middle ground as it were.
Trina Roache: To set up the middle ground, or at least like talk about the middle ground. But they’re like, because the Mi’kmaq don’t want DFO deciding everything. The whole point is that the Mi’kmaq say, well, we have jurisdiction. So let’s talk about this.
How’s this gonna work? And what DFO always wants to do. And I don’t think they have a mandate to really, really talk about and just an implementation of the actual right as it exists. Maybe they do now, but they haven’t had that. And so what, what DFOs response has always been is to just get the Mi’kmaq to fish, just the way DFO, like under the existing DFO regime, under the existing rules that apply to everybody.
And it sounds like, and we hear people say stuff like, it just needs to be fair and equal for everybody, except that’s sounds great. But that’s kind of like saying like all lives matter. If you’re starting from a place of real inequality and you’re starting from a place where you, there has been a resource that is your resource on your unceded territory and you haven’t, you’ve been denied access for, for a long time.
And now you’re playing catch up. And now, you know, the courts have said that, that you, as an individual, that I can go fish, that I don’t need a DFO license, that I can do this. And then, you know, people have been getting charged for ever since the Marshall decision people have been getting charged. And so that’s the, but there’s, there’s a lack of understanding and education.
And DFO in my mind, hasn’t done a good job of doing this and there there’s a lot of pressure because I mentioned other bands because it’s the Sipekne’katik where we’re seeing the conflict right now. Sipekne’katik is fishing like I said, in western Nova Scotia right now. We had another band in Cape Breton, Potlodek, who’s just started theirs. But last year, like I did the documentary last year for the 20th anniversary of the Marshall decision, and was really like, you know, sort of doing a deep dive and looking at all of this. And, and I went up to in Quebec and last year, Lista gush worked with DFO to say, okay, so what we want to do is we have our food, social ceremonial lobster fishery that happens in the fall.
We’re just going to sell some of the catch. So it’s the same amount of lobster. We’re not, we’re not going to taking more lobster. So the conservation is not a concern. We’re going to work with the biologist to come up with a management plan. To make sure that the stocks are okay, that we’re not doing anything. We’re just going to sell because it costs money to go fishing.
Like you’re not even, they’re not even talking about making a moderate livelihood. They’re just talking about like covering fuel and you know, the boats cause money. And so they were working with DFO and we’re very optimistic. And the day before the minister said, no, they just wouldn’t approve the license. And then sent a letter around to all the buyers, saying if you’re caught buying this, this is considered illegal lobster. And if you’re caught buying it, you could be charged and listing gusta anyway. They found a buyer, another Mi’kmaq nation acted as a buyer, but it’s the same. So they enter, they checked all of DFOs boxes, trying to sort of work with DFO. And even then, cause there’s a lot of pressure on DFO that comes from, you know, people in the commercial industry and fishermen’s unions and stuff like that.
Jordan Heath-Rawlings: Tell me maybe in a little more detail about what that pressure looks like on the ground. Because as we, as I was doing research for this episode, you know, I watched some of the footage that was, that was out there on social media about what you call protests from commercial fishermen. And like, it looks dangerous, like what was going on there and what were the authorities doing?
Trina Roache: I would actually say like the protests, I mean, everyone has a right to protest, but protest shouldn’t include vandalizing gear, you know, harassing and dangerous behaviour, which is, you know, coming very close with some of the boats.
Jordan Heath-Rawlings: Like I saw some footage of flares being fired at boats and stuff and it looks, it looks really scary.
Trina Roache: Yeah. You know, why don’t I, and I know that like, because my coworker Angel Moore, she works for National news in the region. And so she was down there sort of, you know, for a long period of time covering that sort of daily news.
And I was down there a couple of times and it was an odd, because for the Mi’kmaq side, you know, they sort of barricade before when the ceremony happened, when they kicked off the food fishery on the Thursday.There were confrontations because anyone could get to the wharf. You saw people coming in.
I think you could see some videos where like, there’s a lot of yelling and the police are on site. There’s like hundreds of people and very like verbal confrontations. And I know for Mi’kmaq who were there, who I spoke to after that was really scary. Like there, you’re sort of outnumbered and you don’t necessarily know what people are going to do when people are aggressive.
And, so, but at the same time, the Mi’kmaq very quickly, I think by Friday evening had set up, like sort of barriers and a checkpoint. So they were being selective about who, they kind of took over the wharf really. And they were doing that to minimize those confrontations, and being selective about who they let in. When you were inside that barrier on the wharf, it was actually a very celebratory field. There was a lot of pride, like for Mi’kmaq people who were just, you know, feeling like finally, right. Finally, you know, here we are and we’re doing it. And then you would go and there’s like a breakwater. So like at the big pile of rocks that sort of, you know, protects the boats when they’re, when they’re in at the dock. And you would, you know, people would climb up and as soon as you, and I remember I went up there with the TV camera to get a good shot. And then, walking up there and then looking out and, or going on a boat, which I did too, and my sorted, my colleague, and seeing like, just dozens of commercial fishing vessels, which some of them are very large floating out in the Bay and coming closer and then backing off and coming closer and backing off. And so that sort of tension like around the periphery of where, like when you were inside the camp, it was one experience. And when you’re outside, you could see what was happening. And then of course like the other flares being fired, traps being cut.
Jordan Heath-Rawlings: This is where I have to ask, like possibly the dumbest question from somebody who doesn’t regularly cover Indigenous rights issues, which is if the Supreme court has already ruled on this and the law is behind them, and it is the commercial fishermen who were being aggressive on the water and cutting traps and shooting flares of which there’s video evidence of. Cause we’ve all seen it. At what point did the cops have to do stuff here and why isn’t more being done?
Trina Roache: Well, and this is, and you did that, you said you asked what the response was and the response, I mean, the RCMP are investigating.
I remember calling them early on. And just getting an update and basically they didn’t have any details just to say that they were. Cause two people I think had been charged for assault during one of the confrontations, but they never released the names and I’m not actually sure that charges got laid.
They just got arrested and let go. But in turn then they said they were investigating mischief and shots fired and uttering threats, but we’re still just, we still just know that they’re investigating. DFO has been very clear that anything like that is, is the RCMP handles. So they don’t ,DFO, you know, if someone’s cutting a trap, that’s considered vandalism.
That’s not them. So they’re, they’re not, they’re not doing anything about that. Now I did notice because early on, like people, Mi’kmaq people were saying like, where are the RCMP? Because this is, this is a refrain that I’ve heard over and over again from Mi’kmaq people, saying that if this was us doing what they’re doing, the RCMP, like the police and DFO, they would be all over us.
And I only have to think back to when in St. Mary’s Bay after the Marshall decision. So it would have been 2000. There was like, like big, huge battles between DFO, just like there was in Burnt Church between DFO and Mi’kmaq fishers who were there trying to go out and fish and DFO, like fights happening and like, and like climbing boats and like real life conferences between DFO and the Mi’kmaq who were just trying to do basically what they’re doing today. And so now you’ve got this like 21 years later and the Mi’kmaq are fishing and DFO at this point knows they can’t well, they’ve come to the conclusion that they can’t really do anything about that. So there’s a helicopter and there’s sort of watching, they sometimes you would see like a DFO boat just sort of out on the water, but kind maintained at a distance. And so like there hasn’t been a real, there hasn’t been a heavy hand in terms of the protests there. The RCMP have maintained a presence, but I don’t know. And as for the boat burn, I mean, they’re investigating, I don’t know. This isn’t the first, there was a boat burned in Membertou last year in Cape Breton. Again, an investigation, but, I never heard any outcome from that.
Jordan Heath-Rawlings: This is, this is another very simple question is like, if, if it’s only 250 traps, which is, you know, scientifically a drop in the bucket, like, what is the big deal and where does that come from? And I know what the answer probably is, but I’m going to ask it anyway.
Trina Roache: Well, you know, it’s about money, right?
It’s about feeling like somehow the Mi’kmaq are going to make money when the, when the other people can’t. Like, it’s not about that though. Cause they keep seeing a reason for the season as if it’s, I don’t know, Christmas or something, but they keep saying the reason for the season and honestly, like, that’s not like they’re all, like I said, they already fished for the food, social ceremonial at that time of year. The seasons are not based on conservation. Conservation is like, okay, here’s a female lobster with eggs. Throw her back. Here’s a lobster who’s too small. Like throw her up. They, they V notch like they have, they have a process and the Mi’kmaq fishermen are doing it right now just the way the commercial fishermen do it during the, during the year. Gulf of Maine,
they fish year round. Clearwater has a zone, a zone 41 all to itself because the right can be regulated. Like the Marshall decision did say that the right can be regulated, but DFO has to, or Canada has to, has to have a pretty good reason. And it has to either do a safety or the big one is conservation.
And so at this point, we know now there’s been enough study and even DFO’s own documents say the stocks are very healthy, so there’s no real concern. And so DFO doesn’t have a reason to regulate this. And so the main upset is that, and I heard it last year, because I sat, I’m not surprised at all, but by any of these events, because I spent my summer last summer filming for my doc.
And on these wharfs and I’m talking to anyone who would talk to me and a lot of, none of them, commercial fishermen would go on would go on tape or would go on camera. But they would say like, I would just stand there, like in leaning in there, you know, like sort of window saying, Hey, what are you doing? And they would just be watching some of the Mi’kmaq fishermen and saying this isn’t fair. You know, like I had to buy my license. And there’s a sense of unfairness that somehow the Mi’kmaq are being given something unfairly and that they have to end up, and that they’re just running a commercial fishery and they’re just out to make money and I’d be like, well, yeah. That’s what a moderate ,that’s how we’re in this moderate livelihood is.
Jordan Heath-Rawlings: I was going to ask you for my last question. Like, where does this go from here? But since you’ve kind of covered, as you mentioned this thing. Over and over and over again, I guess I will end by asking you, do you think that this will, this pattern will ever change for these disputes? And if so, how?
Trina Roache: I think, because the Mi’kmaq, like there was a press release just today from the Sipekne’katik band and the Mi’kmaq now feel empowered. Like they’re feeling like they have momentum in going forward because although there is conflict with the commercial fish, fish harvesters down there, and those things aren’t worked out with DFO, you know, they have a lot of support from like the Mi’kmaq nation. There’s kind of this unity because the band, sometimes there’s a bit of a divide and conquer feel sometimes, especially when you’re talking about negotiations and fishing deals. And the bands though here in Nova Scotia have walked away from the fishing deal that DFO currently has on the table. and I’ll just say this DFO would like, and some bands have signed this deal because they’ve signed initial deals like after Marshall. And then they were supposed to be like, okay, what is a moderate livelihood? Cause that was never defined by the court. Right? So that’s been the ongoing sort of question. And now the Mi’kmaq feel like they’ve defined, like this is what it looks like to us. And this is us going forward. What DFO would like is, and they’ve done it with three bands so far, is they give you a deal. It’s money. What you do, they call it rights reconciliation agreements. And they say it’s an implementation of the moderate livelihood and MarshalL decision. But really what it does is when you sign, you have to actually agree to quiet your rights. So if you are signing on for 10 years, for 10 years, you will not assert your treaties. You will just fish under DFO rules and then you’ll get money for training boats, whatever. And so most bands, three bands signed, but most bands are just, that’s a, that’s a real, like a hard no. So, so they’re, they’ve walked away from that. And so there’s this sort of sense of unity and moving forward and momentum, and there’s more bands starting to look at this and saying, okay, how can we do this? How can we do this also? Now we see what happens, right? So DFO has a job to do in terms of negotiation. Or, sorry, education with the commercial fish harvesters. And if we could just get over the hump. I remember talking to Leroy Denny, because last year, he’s the chief of Eskasoni and last year, one of his band members had their boat, someone shot a hole in the boat and it sunk. Very much tied to fishing like this. And I remember him saying like, if they would just like, there’s a way to partner. Like we get our gear from non, from commercial, non Mi’kmaq fishermen, right? Like there’s a way that everybody sort of benefits, like we’re all treaty people. We’re both sides, not, it’s not just Mi’kmaq people who signed the treaties. Right? They signed the treaties with a partner and that is Canada. So everyone around is also part of that, part of that treaty and has obligations to uphold that treaty. And so like he was kind of making the point like. Like, there’s a way that everyone benefits, right? Like the Mi’kmaq, you know, often require, you know, they’re going to hire, they can, they need to, they need a buyer. They, you know, like there’s a, there’s a business opportunity. So if we can just get over this little like hump, I guess, if we can get to that point. I think then there’s a way forward.
Jordan Heath-Rawlings: Well, that’s, that’s a great place to end it. And thank you so much for walking us through this. I feel like I understand the bigger picture now.
Trina Roache: Well, thanks for having me.
Jordan Heath-Rawlings: Trina Roach of APTN. That was The Big Story. There are more big stories at thebigstorypodcast.ca. There’s more of us on our Twitter account at @thebigstoryFPN, you can talk to us by email.
Thebigstorypodcast@rci.rogers.com. And of course we are in every podcast player you’ve got. Wherever you’d like to get us, we are there. You should know, by the way that sometime last week we hit 500 episodes of this show. So if you didn’t like this one, there are a lot of others.
Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.
Back to top of page
