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This fall, the Sipekne’katik First Nation has pressed ahead with off-season lobster fishing despite racist rhetoric and vigilantism that the RCMP has been criticized for failing to stop. Here’s what you need to know

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Ottawa, Oct. 26: Supporters of the Mi'kmaq lobster fisheries gather on Parliament Hill.Sean Kilpatrick/The Canadian Press/The Canadian Press

The latest

  • Prime Minister Justin Trudeau stood by RCMP Commissioner Brenda Lucki on Tuesday despite calls for her resignation over the Mounties' failure to stop violence against Mi’kmaq fisheries. Mr. Trudeau said Ottawa would work with Commissiner Lucki to reduce systemic racism in the national police force, and she said she is committed to modernizing the RCMP with a “strong focus on advancing Indigenous reconciliation.”
  • The Sipekne’katik First Nation has found a buyer for some of the lobster from its commercially licensed boats, but is not naming them to spare them the retaliation other potential buyers have faced, Chief Mike Sack said Tuesday. The buyer is not purchasing any lobster from the Sipekne’katik’s moderate-livelihood fishery, whose fleet and facilities have been under attack from non-Indigenous Nova Scotians since September.

Fires, attacks and other violence so far

Middle West Pubnico: An angry mob of about 200 people attacked a lobster storage pound on Oct. 13, barricading Mi’kmaq fishers inside, pelting the building with rocks, destroying one of their vans and leaving their lobster strewn across the ground. Three days later, the same facility was destroyed in a suspicious fire. A man has been charged for the destruction of the van.

New Edinburgh: Another facility in New Edinburgh, north of Middle West Pubnico, also came under attack on Oct. 13. This one belonged to a licensed buyer who had agreed to sell lobster caught by members of the Sipekne’katik First Nation. The next day, a man grabbed and assaulted the Sipekne’katik Chief in New Edinburgh. The man was charged and released.

Comeauville wharf: A lobster boat belonging to one of the Mi’kmaq fishers, Robert Syliboy, was destroyed at a wharf by an Oct. 5 fire that police deemed suspicious.

Fishing and First Nations explained

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Donald Marshall Jr., middle, takes part in a peaceful protest over Indigenous fishing rights in Sydney, N.S., in 2000.Andrew Vaughan/The Canadian Press/CP

The legal questions

Mi’kmaq, Wolastoqiyik and Passamaquoddy people have fished and hunted in Nova Scotia for thousands of years, and the British government acknowledged their rights to do so in the treaties that made the Maritimes part of the British Empire, notably the Peace and Friendship Treaty of 1760. Those treaty rights are also affirmed by section 35 of Canada’s Constitution. But disputes between First Nations, federal fishery regulators and non-Indigenous fishing communities have been hotly contested on the seas and in the courts over the decades. Mi’kmaq won a major victory in one such dispute, 1999′s R. v Marshall case, in which the Supreme Court of Canada said a Mi’kmaq fisherman, Donald Marshall Jr., had a treaty right to fish for eels without a license. But that ruling left unanswered questions about what constitutes fishing for a “moderate livelihood,” which Indigenous people are allowed to do whenever they want, and large-scale commercial fishing, which is federally regulated. Here’s part of what the ruling said:

The accused’s treaty rights are limited to securing “necessaries” (which should be construed in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth. ... What is contemplated is not a right to trade generally for economic gain, but rather a right to trade for necessaries. The treaty right is a regulated right and can be contained by regulation within its proper limits.

The Mi’kmaq band at the centre of this year’s dispute, the Sipekne’katik First Nation, has not ceded regulatory authority of their fisheries to Ottawa, and plans to decide for itself what a “moderate livelihood” is. It started up a commercial fishery on Sept. 17, the 21st anniversary of the Marshall ruling, and gave the first license to Mr. Marshall’s son, Randy Sack. Under the precedent set by R. v Marshall, that’s legal. But local non-Indigenous people have taken the question of “moderate livelihood” into their own hands by destroying Sipekne’katik boats, traps and equipment, and harassing people who buy their lobster. The Sipekne’katik have had to scale back their commercial fleet, but they say the moderate-livelihood fishery will continue. Other Mi’kmaq bands, including the Potlotek, Eskasoni and Bear River First Nations, have launched their own self-regulated fisheries too.

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A crate of lobsters sits on the sidewalk as Cheryl Maloney, a member of the Sipekne'katik First Nation, sells lobster outside the legislature in Halifax on Oct. 16.Andrew Vaughan/The Canadian Press/The Canadian Press

The sustainability questions

Critics of the Mi’kmaq argue that fishing for lobster in the off-season – which, in that part of Nova Scotia, runs from late May to late November – endangers a lobster population that needs that time to reproduce safely. But fisheries experts say the Sipekne’katik’s operation is too small to make much difference. The whole Sipekne’katik fleet is about the equivalent of one of the thousand commercial boats that fish in the area in the regular season, Professor Megan Bailey at Dalhousie University’s Marine Affairs program said in a September interview. When it comes to violating conservation policies, enforcement statistics suggest non-Indigenous fishers are the bigger problem: Between 2015 and 2019, DFO laid 2,252 charges and said all but “a small fraction” were related to non-Indigenous crews.

What the RCMP have done

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A RCMP officer signals to another officer on Oct. 17 as they search the shoreline after the Middle West Pubnico fire.John Morris/Reuters/Reuters

The Mounties began to provide security to the Sipekne’katik fishers in September after anti-fishery protesters turned violent. But Sipekne’katik leaders say the RCMP hasn’t done enough to stop the vigilantism. RCMP deployments began to increase in mid-October, setting up checkpoints and bringing in tactical officers, but Sipekne’katik Chief Mike Sack said he’d rather see the military “step in to keep the peace.”

Where does Ottawa stand?

Justin Trudeau: The Prime Minister urged federal agencies in mid-October to make sure those involved in the Mi’kmaq fishery are safe, but First Nations leaders and opposition parties have criticized him for not doing more earlier to stop the violence. They’ve also demanded he replace the RCMP Commissioner, Brenda Lucki, but he’s given no indication he will do that.

Parliament: Fisheries Minister Bernadette Jordan says DFO has been in contact with Mi’kmaq and industry leaders to work toward a longer-term solution to fisheries regulation. One idea Mi’kmaq parliamentarians have proposed is a co-managed Indigenous fishery off Nova Scotia and an “Atlantic First Nations Fisheries Authority” to oversee it.

More reading

James A. Michael: The disputed lobster fishery has the law on its side

Tanya Talaga: Canada tramples on First Nations treaty rights as it works to pay off its COVID-19 bill

Donald J. Savoie: Resolving Nova Scotia’s fishery conflict will require inviting both sides to the negotiating table

Editorial: The Trudeau government can end the lobster war by honouring Indigenous rights – and their limits

Compiled by Globe staff

With reports from Greg Mercer and The Canadian Press

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