Like many in his community, Alex Dedam will never forget the lobster wars.
It was 21 years ago that a small fleet of Esgenoôpetitj fishing boats took to the waters off western New Brunswick, where the Miramichi River meets the ocean.
They had been fishing for lobster in the weeks before as part of their ceremonial fishery, harvesting enough for a feast that would take place at the end of their annual powwow.
But on Sept. 17, 1999, the Supreme Court of Canada had released a ruling on Donald Marshall’s case. The Mi’kmaq man had been arrested in Cape Breton, N.S., in 1993 for catching and selling eels out of season. His case went all the way to the Supreme Court, which formally acknowledged the right of Indigenous people to fish year-round for a moderate livelihood.
Newly sanctioned by the highest court in the land, the Indigenous fishermen from Burnt Church, N.B., at once set out to lay their traps again.
That act would trigger three years of conflict with the federal government and non-Indigenous fishermen.
In the weeks that followed, lines were cut and thousands of Indigenous lobster traps were destroyed. On Oct. 3, an armada of more than 100 non-Indigenous fishing boats gathered in Miramichi Bay in an attempt to stop Indigenous fishing boats.
Tempers flared. Arrests were made.
Standoffs with non-Indigenous fishermen escalated in 2000 to standoffs with the Department of Fisheries and Oceans and the RCMP. During a raid, a DFO boat was filmed ramming an Esgenoôpetitj fishing boat. Two other small boats were swamped and sunk after being charged by DFO boats — their occupants forced to leap overboard.
“Our elders suffered a great deal,” says Dedam, who was then a spokesperson for the Esgenoôpetitj and is now the band’s financial controller. “(They had) boats in the water, there were helicopters flying around; there was a police presence that was very noticeable. People, when they left the community, some of them were searched and harassed and that type of thing. And that certainly has affected a lot of our people.
“To this day, my mother is 95, and she just does not trust the police. And this was 21 years ago, so she was in her 70s already. She was one of the elders in our community.”
In the minds of some, it all seemed to be playing out again, albeit in somewhat less drastic fashion, a few weeks ago, when the Sipekne’katik First Nation opened its “moderate livelihood” fishery in Nova Scotia by issuing seven licences for a total of 350 lobster traps to their members. Like the Esgenoôpetitj, their fishery drew the ire of non-Indigenous commercial fishers and the attention of the DFO.
The stakes are high when it comes to lobster on the East Coast.
The federal government’s preliminary figures for the 2016-17 lobster season placed the value of the Maritimes inshore lobster fishery at $833.3 million. Lobster Fishing Area (LFA) 34 — which covers the southwestern tip of Nova Scotia, where the Sipekne’katik launched their fishery — is by far the most lucrative of those designated areas, with a landed value more than $350 million for the same season.
But some things have changed between this moment and the Burnt Church crisis more than two decades ago.
Between 2000 and 2007, the federal government put $354 million into commercial fishing licences, fishing vessels, gear and training for First Nations. It estimates that, between 2007 and 2015, the value of First Nations commercial fishing increased 120 per cent, to $145 million.
This particular federal government has consistently emphasized its commitment to reconciliation with the Canada’s First Nations, and it has stated “that Mi’kmaw have a constitutionally protected treaty right to fish in pursuit of a moderate livelihood.”
Yet negotiations on what that moderate-livelihood fishery should look like have so far failed to bear fruit.
More than two decades on from the Supreme Court’s ruling, First Nations have grown tired of waiting and, like the Sipekne’katik, some are taking it upon themselves to create, license, monitor and regulate their own fisheries.
The lobster wars, as they came to be known, in New Brunswick saw an expanding conflict as the Esgenoôpetitj continued to fish despite a DFO intent on stopping them.
In the end, in 2002, the Esgenoôpetitj came to an agreement with DFO, under which they would fish under federal government licence during federally mandated fishing seasons.
But the crisis left scars that persist in the community even now. The two halves of the town of Burnt Church — Indigenous and non-Indigenous — had, in the past, mostly kept to themselves. The crisis further deepened that split. And the Esgenoôpetitj’s view of law enforcement was shaken.
“I think that the relations with the police really deteriorated here,” said Dedam. “(We) didn’t trust them anymore because they really didn’t protect us.
In Saulnierville, N.S., as the Sipekne’katik launched their own fishery this year in St. Mary’s Bay on Sept. 17, more than 50 non-Indigenous fishing boats waited for the five Indigenous fishing boats to leave the wharf. In the hours and days following, Sipekne’katik fishers reported lines being cut as soon as traps were laid and their lobster traps being hauled out of the water.
Colin Sproul of the Fundy Inshore Fishermen’s Association said about 100 boats were removing Sipekne’katik traps from the water with the intention of taking them to a nearby wharf, even as federal Fisheries Minister Bernadette Jordan met Sipekne’katik band Chief Michael Sack to discuss a path to accommodating the fishery and de-escalating the conflict.
On Thursday, the Potlotek First Nation in southeastern Cape Breton, following the path of the Sipekne’katik, launched its own moderate-livelihood fishery, with its own licences for six or seven fishermen.
In this case, however, the Potlotek have been talking with the Richmond County Inshore Fishermen’s Association, which represents commercial fishermen in the area. The two parties have agreed to avoid the kind of conflict that has marred the Sipekne’katik fishery.
In Quebec, across the border from Campbellton, N.B., the Listuguj First Nation, also impatient with the pace of negotiations between DFO and the Assembly of Nova Scotia Mi’kmaw Chiefs, began its lobster fishery Sept. 20.
It’s the same ceremonial fishery they’ve had for the past 20 years, said Listuguj Chief Darcy Gray — five fishermen and a community-owned boat, for a total of 235 traps, which go out fishing for two weeks. It’s a ceremonial fishery that has been approved by the DFO, and is within the federal department’s conservation limits.
But the past two years, the Listuguj have attempted to sell a portion of that catch, and that has created problems with DFO.
“It is still primarily a food ceremonial and social fishery,” said Gray. “It is about feeding our community. It’s also a small commercial aspect to cover the cost of managing the fishery. So we at least want to cover our costs.”
Although the amount of lobster taken was the same as the DFO-approved harvest for the past two decades, last year DFO notified prospective buyers of their lobster that buying that lobster would be illegal, Gray said.
Forced to find an alternative, the band entered into a trade agreement with another First Nations community for its lobster.
“Last year, there was an explicit message sent out that this is illegal lobster,” said Gray. “This year, with the events going on (during the Sipekne’katik fishery), I’m not sure what message may have been sent, because you see different messaging that’s evolving coming out of DFO. And maybe there’s a little bit of hope there.”
Gray’s hope is that his band can exercise its treaty rights and add a commercial moderate- livelihood component to its existing ceremonial fishery. But as elsewhere, he’s faced with claims that the Indigenous fishers are jeopardizing conservation efforts and damaging the commercial fisheries.
“We’ve heard a lot of those kind of points raised in ignorance, not understanding how we’re going about our fishery, and, and maybe banking on the perpetuation of ignorance and hoping that that would discourage the way we went forward,” said Gray.
“I think back to — even though it was a milder reaction last year with regards to our fishery — I pointed out to DFO at that time, that they have a responsibility to inform, educate and build the awareness and knowledge around the expression of our rights, the exercise of those rights, and how that differs from the usual allocation of commercial permits.”
While many of the concerns about Mi’kmaq fisheries centre on the conservation of the lobster stock, Megan Bailey, who studies fisheries management, argues otherwise.
Bailey, an associate professor in the marine affairs program at Dalhousie University in Halifax, points to the scale of the Sipekne’katik moderate-livelihood fishery.
In the commercial fishery, she says, there are nearly 1,000 licensed lobster fishermen in the fishing area that covers the southwestern tip of Nova Scotia — at about 375 traps per boat.
By contrast, the Sipekne’katik issued seven fishing licences at 50 traps per licence, for a total of 350 traps.
“That’s the equivalent of one commercial vessel operating per day, when normally in the commercial season, there are 1,000 — so it’s one one-thousandth of the effort that we see in the commercial season,” she said.
Added to that, the last stock assessment, undertaken by DFO in 2015, concluded that that the lobster stock in that area was thriving.
“Landings in LFA 34 began a long-term increase in the 1980s and recent landings are at record highs,” said a DFO statement in 2017.
Commercial fishers argue that fishing by Indigenous communities when the commercial season is closed has the potential to harm the stock, but Bailey says that’s not quite the case.
Part of the reason for having lobster seasons in Atlantic Canada is to create a uniform supply of hard shell lobster, said Bailey. So when the fishery in southern Nova Scotia closes in May, the fishery further north up in Cape Breton opens. That staggering of seasons allows for hard shell lobster — which is a more lucrative catch than the softer shelled, post-moult version — to be sold over longer periods of time.
For its part, DFO acknowledges that the new Indigenous fisheries — contrary to the claims of non-Indigenous commercial fishers — do not present a conservation issue.
“I think that the issue is because this is contentious, because it’s political, (because) it has economic ramifications, every administration just kicks the can down the road,” said Bailey.
“I really think it’s an avoidance tactic, where there was this hope that the Mi’kmaq would never organize themselves in a way to be able to really exercise this right. And I think that’s coming back to bite DFO in the butt.
“But also in the commercial fishing industry. They’ve known this was coming. Where have they been in the lead-up to this to try to create a collaborative coexistence situation where what we see happening at the wharf doesn’t happen?”
On both sides of the issue, fishermen are frustrated with DFO’s failure thus far to provide clarity on the moderate-livelihood fisheries.
For its part, the federal government is walking a tightrope between the two sides, and choosing its words very carefully.
But the biggest difference between 1999 and now is a government that has committed — publicly at least — to implementing the Marshall decision.
“First Nations have a treaty right to fish, and we want to work with them to implement it,” said DFO spokesperson Jane Deeks. “That’s the conversation that’s happening right now.”
Between that commitment, and the pressure being exerted by Indigenous and non-Indigenous fishermen alike, it seems likely that there will be some movement on an issue that has been mired for 21 years.
“This government is firmly committed to advancing reconciliation, respecting Indigenous treaties, and implementing First Nation rights, and we firmly believe that respectful, constructive dialogue is the way to achieve this,” said Fisheries Minister Bernadette Jordan and Minister of Crown-Indigenous Relations Carolyn Bennett in a joint statement.
“At this time we need communication, not confrontation.”