Marshall decision still ripples through native fishery – Idle No More

Herald News

By Aarom Beswick Truro Bureau
Published January 23, 2015 – 8:31pm
Last Updated January 24, 2015 – 6:36am

PICTOU LANDING — Gary Denny is a captain.

The 28-year-old Pictou Landing First Nation band member holds his head high as he says it.


(Gary Denny is a 28-year-old fishing captain for the Pictou Landing First Nation. He is one of the beneficiaries of the 1999 Supreme Court of Canada ruling that acknowledged the treaty right of Mi’Kmaq to make a moderate livelihood from the commercial fishery)

“It’s hard physical and mental work, but I enjoy it and take pride in it.”

Through May and June, he leads two fellow band member crewmen fishing lobster out of Cheticamp. In July, they go farther offshore to fish snow crab in the Gulf of St. Lawrence, and then he returns to Pictou Landing to fish herring and rock crab into November.

When those seasons close, Denny heads to the South Shore to crew on a boat in the winter lobster fishery.

The fish he hauls from the sea supports his First Nation, his fiancee and two children.

“My plate is pretty full,” Denny said Thursday.

He wouldn’t likely be a fishing captain if Donald Marshall Jr. hadn’t set eel nets in Antigonish County’s Pomquet Harbour in 1993.

Marshall, from Membertou First Nation, sold the 463 pounds of eels for $787.10 and was arrested. He was charged with fishing without a licence, setting illegal nets during a closed season and selling eels without a licence.

Nova Scotia’s courts upheld those charges, but then the Supreme Court of Canada surprised everyone in 1999 — everyone except the Mi’kmaq.

Fisheries and Oceans Canada “probably never thought in a million years that the Indians were going to win,” said Tuma Young, assistant professor of indigenous studies and political science at Cape Breton University’s Unama’ki College, on Thursday.

“I would say they were caught off guard.”

The Supreme Court ruled that the 1760 and 1761 treaties between the Mi’kmaq and Britain gave the Mi’kmaq the right to make a “moderate livelihood” off commercial fisheries.

Something near chaos ensued on the waters around Atlantic Canada.

Thirty-four First Nations in Nova Scotia, New Brunswick and Quebec interpreted the ruling as validating the right they had long claimed to participate in commercial fisheries. Band members took to the water to exercise this right.

Meanwhile, non-aboriginal fishermen who had spent large amounts of money buying licences and gear feared for their livelihoods, which were based on fish stocks that were already taxed to the limits of sustainability.

Lines were cut, harbours were blockaded and conflict ensued.

Three months after making its ruling, the Supreme Court took the rare step of issuing a clarification, saying that the federal government had the right to manage fisheries for conservation purposes and that the Mi’kmaq only had a treaty right to participate commercially in traditional fisheries.

So, 15 years later, has the Marshall decision been implemented?

“It depends on what your gauge of success is,” said Young.

“If the question is ‘Have aboriginals received the opportunity to make a living off the water?’ then the answer is yes, almost every single band has been able to take part in some sort of fishery. But if your question is ‘Have we been successful in implementing the treaty rights?’ then the answer is no.”

In the seven years following the Marshall decision, Fisheries and Oceans Canada spent $600 million buying licences and gear at inflated prices from non-aboriginal fishermen and turning them over to First Nations. As well, money was made available for training programs.

In total, 32 of 34 eligible First Nations signed commercial access agreements with the federal regulator of the fishery in exchange for licences and boats.

“We had this meeting with (Fisheries and Oceans Canada),” said Wayne Denny, fisheries director at Pictou Landing, on Thursday.

“Their guys came in and we sat down and they told us they’d bought six licences and they were coming to Pictou Landing. It was a complete surprise to us.”

Pictou Landing signed a commercial access agreement in exchange for the licences, and with each renewal they’ve gotten more licences and gear. The band now owns and operates 18 lobster licences, six snow crab licences and a handful of rock crab, ground fish and herring licences.

While other First Nations like Shubenacadie lease licenses to non-aboriginal fishermen, Pictou Landing has trained its own captains and owns its boats.

About 80 of the First Nation’s 460 residents work in the fishery; Fisheries and Oceans Canada estimates about 365 land-based personnel and 1,310 fishermen participate in the aboriginal commercial fishery in Atlantic Canada.

“It’s been a learning process for us; we’ve been constantly training our people,” said Denny.

“But for us (the commercial access agreements) meant a lot of employment and opportunities to offer our young people.”

But the agreements are just a stop-gap measure implemented by Fisheries and Oceans Canada to provide First Nations with controlled access to the fishery while the meaning of the Marshall decision is negotiated by the Assembly of First Nations and the federal and provincial governments.

“The contents of those negotiations aren’t public,” said Young.

“I believe the Mi’kmaq are saying ‘We want the right to regulate our fisheries.’ That may be the sticking point. The big question in the future will be ‘does the right to commercially access fish include the right to regulate that participation?’ If so, (Fisheries and Oceans Canada) would have to devolve their authority and jurisdiction in this area to the Mi’kmaq community.”

One of the two communities that has refused to sign commercial access agreements is the one nearest where Marshall was charged for fishing eels.

“We saw how (Fisheries and Oceans Canada) managed the ground fishery and can’t have faith in their ability to manage our fishery,” said an employee of the Paq’tnkek First Nation’s fishery department Friday who didn’t want his name used.

Paq’tnkek received four lobster licences and a few snow crab licences in the years following the Marshall decision. But unlike Pictou Landing, which has received more licences and gear from the federal government in exchange for renewing its commercial access agreement, Paq’tnkek has refused to sign an agreement and got nothing else.

Though its crews fish the same seasons and maintain good relations with area non-aboriginal fishermen, Paq’tnkek has not acknowledged the authority of Fisheries and Oceans Canada to manage their fishery.

“Through 240 years of treaty denial, our right to make a moderate livelihood off the fishery has been criminalized,” said the employee.

“If we hadn’t been held back all these years, what kind of economic and social position do you think we would be in today?”

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