Ottawa's lobster war against the Mi'kmaq

William Hipwell
National Post
Sarurday, September 30, 2000


Illustration of two canes holding onto a lobster in the opposite direction.

The shooting has begun on Miramichi Bay. Competing allegations abound as to who fired the first shot, but whoever did, this is a predictable outcome of a federal policy that seems designed to inflame the anger that has been smouldering in northeastern New Brunswick. On Thursday last week, the federal Department of Fisheries and Oceans announced that the Esgenoôpetitj Mi'kmaq food fishery near Burnt Church, N.B., would, at 11 a.m. the next morning, "become illegal."

This time the DFO was not merely talking about the commercial fishery at the centre of the months-long dispute. Now, the government threatened that even the paltry 40 traps used by the Mi'kmaq to catch lobster for food and ceremonial purposes would be seized by force. This despite the fact that every aboriginal nation in Canada has recognized title to land and resources, and a constitutional right to a food fishery established by more than a century of legal precedents, beginning with the St. Catherine's Milling case in 1888 and culminating in the Supreme Court of Canada's landmark 1990 Sparrow decision.

The abrupt federal move has left legal experts reeling, as it threatens in its blatant unconstitutionality not only to trigger widespread violence between the aboriginal nations and the government, but also to render precarious the rights and freedoms enjoyed by all Canadians. When a government has become so arrogant that it feels it can with impunity contravene its own constitution and defy the rulings of its own Supreme Court, all citizens have reason to be afraid.

Almost without exception, Canada's major newspapers and broadcasters wrongly report that the right to a commercial fishery is a "native belief" rather than a fact of law, at least as regards the Mi'kmaq. Emboldened by this misunderstanding, the government position has become increasingly intractable. In contrast, the Mi'kmaq have offered numerous concessions in an effort to reach a peaceful agreement, including a joint trap count, a voluntary reduction in fishing and an openness to dialogue with the Maritime Fishermen's Union.

The Supreme Court's 1999 Marshall decision, which authorized a limited Mi'kmaq commercial fishery, held that any federal regulation of that right must be justified by a legitimate conservation concern. After more than a month of violent assaults by DFO and RCMP officers against the Mi'kmaq, Fisheries Minister Herb Dhaliwal and his staff appear to have finally begun to understand this. On Sept. 20, Mr. Dhaliwal and Jim Jones, DFO's regional director general, sent separate letters to the chief and council of Esgenoôpetitj ("Burnt Church" is a distasteful name the government imposed on the Esgenoôpetitj Mi'kmaq). These letters outlined, for the first time, a putative conservation concern about the level of lobster fishing authorized under the Esgenoôpetitj Fishery Act and Management Plan (EFAMP).

Because the law matters, so do federal statements about conservation and sustainability. Unfortunately, DFO relies on inflated numbers and partial truths, raising the unsettling possibility that the government is manufacturing a conservation problem to justify the infringement of Mi'kmaq treaty rights.

According to DFO's Jim Jones, during this fishing season, which will end on Oct. 7, the total Esgenoôpetitj lobster catch would total 153,000 kilograms. This figure is based on the DFO contention that the Mi'kmaq set 1,700 lobster traps in the water, a figure hotly contested by the Esgenoôpetitj Band, which hired chartered accountants to verify its own claim of having set only 650 traps. Moreover, DFO bases its concerns about long-term sustainability and "threat to the resource" on a theoretical maximum of 15,000 traps in the spring fishery and 5,600 traps in the fall fishery set out in the EFAMP for a much wider geographical area, and not the 650 (or, if you will, 1,700) traps actually in use in Miramichi Bay today. Certainly, if the Mi'kmaq management plan has overallocated traps, this needs to be negotiated. However, according to the strange logic of the DFO, since 20,600 traps would not be "sustainable on a long-term basis," somehow 1,700 traps create an immediate conservation concern justifying infringement. This does not even come close to what the Supreme Court envisaged.

How significant is the Mi'kmaq lobster harvest? The federal government permits non-native commercial fishing interests in Atlantic Canada to use more than three million traps each year. Of these, non-natives in Zone 23 alone, which is the area covered by the EFAMP, have licences to 242,000 traps. Illegal non-native traps greatly inflate these numbers. If we accept federal estimates, the Mi'kmaq of Esgenoôpetitj are using less than 1% as many traps as their non-native neighbours. Even if the Mi'kmaq set all the traps they ultimately want under their EFAMP plan, their Esgenoôpetitj fishery would represent less than 8% of the local non-native commercial fishery. Were it not for the gravity of the present situation, these statistics would render federal claims about conservation laughable. As a Mi'kmaq fisherman asked in a recent interview with CBC, "So we are supposed to save the lobsters for [the non-natives]?"

If the conservation argument is so threadbare, why is the government so intent on shutting down the tiny Mi'kmaq inshore fishery? A clue may be found in an unlikely place: the Halifax Harbour. There, on the same day as the DFO "conservation" letters to Esgenoôpetitj, Fred Sears of the Southwest Fishermen's Rights Association sneaked on to the Bluenose II and chained himself high up the mast. His message was twofold: DFO's policy of allocating resources to large offshore fishery corporations is driving small inshore fishers into bankruptcy, and this policy is simultaneously destroying the fish stocks.

In this regard, a brief passage in Mr. Dhaliwal's letter to the Esgenoôpetitj Band is revealing. Mr. Dhaliwal states that he is responsible not just for conservation but also for "the orderly management of the fisheries, taking into account the state of the stocks and the interests of other users of the resource." These other interests, as the Bluenose II protest emphasizes, are large corporations, and not the small fishermen cynically valorized by DFO spokespeople in their rhetorical battle against the Mi'kmaq.

With an election just around the corner, the Liberals are evidently gambling that the violent suppression of Mi'kmaq rights will go unopposed by the public. In that, they have badly misjudged the decency and compassion of Canadians. Even worse, they are, in their obsession to show who is boss, setting in motion a process that could culminate, as it has in so many other multi-ethnic states, in a protracted and bloody civil war. That this has not already happened is thanks only to the admirable patience of the Mi'kmaq Nation and the rest of aboriginal Canada. The federal government must work in good faith for a peaceful resolution to the "lobster wars," and develop a comprehensive policy to resolve aboriginal nations' just claims to a share of natural resources, before that patience runs out.

William Hipwell holds a Social Sciences and Humanities Research Council of Canada doctoral fellowship at Carleton University's department of geography and environmental studies.