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Nikita Paul from the Sipekne'katik First Nation returns a pregnant female lobster to the ocean in St. Marys Bay, N.S. Here, the Mi'kmaq nation is exercising its right to a moderate livelihood fishery.

Darren Calabrese/The Globe and Mail

On the southwestern coast of Nova Scotia, tensions remain high as the regulated lobster season is set to begin in St. Marys Bay.

Violence among fishermen not seen for decades in Atlantic Canada erupted this fall after Sipekne’katik First Nation established a fishery in September, operating outside the seasonal restrictions imposed by the federal Department of Fisheries and Oceans (DFO). Potlotek and Pictou Landing First Nations subsequently established their own fisheries outside DFO’s supervision, and others Indigenous communities have expressed interest in doing so.

First Nations argue their new fisheries are legal, citing a 1999 Supreme Court decision which recognized Mi’kmaq treaty rights to fish. But these developments prompted non-Indigenous fishing groups to allege in a joint statement released in September that unless Indigenous harvesters follow the same rules as everyone else, “Canada’s fishery will be destroyed.”

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That’s an extraordinary claim. To support it, The Coldwater Lobster Association pointed to DFO data showing a significant dip in the amount of lobster brought ashore from St. Marys Bay since 2017. Its president, Bernie Berry, contended out-of-season fishing by First Nations caused the drop. His claim was backed by a coalition of East Coast fishing organizations, which jointly called on DFO to halt all out-of-season commercial fishing, and impose bigger fines and seize assets.

Mike Sack, Chief of Sipekne’katik First Nation, said “inaccurate” claims of overfishing by the new fishery would “result in added marginalization and conflict against our people.” First Nations accuse non-Indigenous fishers of stealing traps, shooting flares at their boats, and uttering threats. Federal Indigenous Services Minister Marc Miller called attacks on Mi’kmaq fishers racist and unacceptable.

Sipekne'katik Chief Mike Sack, right, hands out the first lobster license of the moderate-livelihood fishery to Randy Sack on Sept. 17.

Andrew Vaughan/The Canadian Press

Underlying their dispute are long-standing fears that Atlantic lobster stocks might collapse, similar to what happened to Atlantic cod in the late 1980s and early 1990s. As far back as 25 years ago, a time when First Nations were barely involved in the fishery and the cod collapse was still fresh in memory, an adviser to DFO warned that lobster was being overharvested: “We are taking too much, and leaving too little.”

Today’s harvest makes that of the 1990s seem restrained by comparison. And yet, contrary to expectations, the fishery has shown few, if any, signs of distress.

Nobody is quite sure why lobster stocks have held up so well, nor how long the good times can last. This uncertainty is stoking tensions at a moment when First Nations are poised to become major players in the East Coast fishing industry through the pending acquisition of Clearwater Seafoods, the nation’s largest holder of commercial shellfish licenses and quotas.

At stake is Atlantic Canada’s most valuable fishery. Lobster landings in Atlantic Canada were worth more than $1.4-billion in 2018, according to DFO figures. That’s more than double the total for cod, haddock, halibut, herring, hake, eel, tuna, mackerel, swordfish, shrimp and scallops combined. Lobster is also Canada’s most valuable seafood export; important markets include the U.S., Japan, China, Belgium and France. The economies of many fishing communities have come to rely on this single species, often to a perilous degree.

As this fishery moves into an uncertain future, its relative lack of data is becoming a serious liability.

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Atlantic Canada’s lobster catch

has surged since the 1990s

2018:

97,381.3

Live weight (tonnes)

100,000

80,000

60,000

40,000

20,000

0

1990

1994

1998

2002

2006

2010

2014

john sopinski/the globe and mail,

SOURCE: fisheries and oceans canada

Atlantic Canada’s lobster catch

has surged since the 1990s

2018:

97,381.3

Live weight (tonnes)

100,000

80,000

60,000

40,000

20,000

0

1990

1994

1998

2002

2006

2010

2014

john sopinski/the globe and mail,

SOURCE: fisheries and oceans canada

Atlantic Canada’s lobster catch

has surged since the 1990s

2018:

97,381.3

Live weight (tonnes)

100,000

80,000

60,000

40,000

20,000

0

1990

1994

1998

2002

2006

2010

2014

john sopinski/the globe and mail, SOURCE: fisheries and oceans canada

American lobster

Head

Thorax

Abdomen

Crusher

claw

Homarus americanus

About: Large, hard-shelled

crustacean found in northwest

Atlantic waters. Can live up

to 50 years

Tail fin

Habitat: Ocean bottom in

rocky areas where it can hide

Swimmerets

Walking legs

Diet: Varied selection of

mollusks, crabs, shrimp and

small fish

Pincer claw

Up to: 60cm

john sopinski/the globe and mail,

SOURCE: noaa; parl.ns.ca; tastelobster.ca

American lobster

Head

Thorax

Abdomen

Crusher

claw

Homarus americanus

About: Large, hard-shelled

crustacean found in northwest

Atlantic waters. Can live up

to 50 years

Tail fin

Habitat: Ocean bottom in

rocky areas where it can hide

Swimmerets

Walking legs

Diet: Varied selection of

mollusks, crabs, shrimp and

small fish

Pincer claw

Up to: 60cm

john sopinski/the globe and mail,

SOURCE: noaa; parl.ns.ca; tastelobster.ca

American lobster

Head

Thorax

Abdomen

Homarus americanus

Crusher

claw

About: Large, hard-shelled

crustacean found in northwest

Atlantic waters. Can live up

to 50 years

Tail fin

Habitat: Ocean bottom in

rocky areas where it can hide

Swimmerets

Walking legs

Diet: Varied selection of

mollusks, crabs, shrimp and

small fish

Pincer claw

Up to: 60cm

john sopinski/the globe and mail,SOURCE: noaa; parl.ns.ca; tastelobster.ca


Mystery of the Deep

The East Coast lobster fishery has suffered booms and busts throughout its history. After some early go-go years in the 1890s, landings crashed by the 1930s and remained low until the 1980s, when they began increasing dramatically. “The underlying cause of this increase is not known,” noted one DFO document.

Aaron MacNeil, a professor of fisheries ecology at Dalhousie University, said there are two compelling theories for lobsters’ current abundance. One is that they’re thriving as ocean temperatures rise as a result of the warming climate. “Any animal in the marine environment will grow faster in warmer temperatures, up to a point,” he said. Another is that lobster benefitted from the decline of cod, which prey on juvenile lobster.

It’s tough to know for certain, in part because Canada’s lobster fishery collects little data demonstrating the health of lobster populations. The industry relies heavily on landings (the quantity of lobster caught and brought ashore) as an indicator of abundance. Critics say that’s risky, because landings are influenced not only by changes in the size of lobster stocks, but also other factors such as fishing effort and efficiency.

The Fisheries Resource Conservation Council was a body drawn from the industry, as well as the scientific and academic sectors, that advised the Minister of Fisheries and Oceans until it was disbanded in 2011. Throughout its existence it warned that the lobster fishery was sailing blind. “Relative to the economic importance of the lobster fishery, very little data is collected on the fishery to facilitate sound scientific analysis and management,” it warned in a 2007 report.

Keeping tabs on the Atlantic lobster is no simple task. It’s found all the way from Long Island Sound to the Labrador Sea, from the shoreline to the edge of the continental shelf. Traditional methods of counting fish, such as acoustic and trawl surveys, are difficult to apply to a crustacean that struts the seabed. A decade ago, the House of Commons Standing Committee on Fisheries and Oceans acknowledged that monitoring the biomass would be “complex and costly,” but urged DFO to undertake it nonetheless.

Today, in addition to tracking landings, DFO monitors commercial catch rates (the weight of landings divided by the number of trap hauls) and the mean number of lobsters recovered in a trawl survey. Its assessments show little cause for alarm.

lobster fishing areas

Gulf of

St. Lawrence

NFLD.

QUEBEC

NEW

BRUNSWICK

PEI

Sydney

Charlottetown

Moncton

St. Peters

Bay

Saint John

NOVA SCOTIA

Halifax

Yarmouth

Atlantic Ocean

St. Mary’s

Bay

LFA 34:

Most

lucrative

area

Lobster fishing areas (LFA)

john sopinski/the globe and mail,

source: fisheries and oceans canada

lobster fishing areas

Gulf of

St. Lawrence

NFLD.

QUEBEC

NEW

BRUNSWICK

PEI

Sydney

Charlottetown

Moncton

St. Peters

Bay

Saint John

NOVA SCOTIA

Halifax

Yarmouth

Atlantic Ocean

St. Mary’s

Bay

LFA 34:

Most

lucrative

area

Lobster fishing areas (LFA)

john sopinski/the globe and mail,

source: fisheries and oceans canada

lobster fishing areas

Gulf of

St. Lawrence

NFLD.

QUEBEC

NEW

BRUNSWICK

PEI

Sydney

Charlottetown

Moncton

St. Peters

Bay

Saint John

NOVA SCOTIA

Halifax

Yarmouth

Atlantic Ocean

St. Mary’s

Bay

LFA 34:

Most

lucrative

area

Lobster fishing areas (LFA)

john sopinski/the globe and mail, source: fisheries and oceans canada

St. Marys Bay, where the coalition of fishing organizations focused its concerns, is a small part of Canada’s busiest lobster fishing district. There the DFO-regulated fishing season begins the last Monday in November and runs through the end of May.

According to DFO’s latest assessment, published in 2017, the area “is considered to be in the Healthy Zone.” (Many other areas enjoy the same rating.)

St. Marys Bay itself is an anomaly. In a written response to questions, DFO said that reported landings and effort decreased “slightly” in St. Marys Bay between 2017 and 2019. Last year, the commercial fishery pulled 915 metric tonnes of lobster from St. Marys Bay, down 45 per cent from 2017.

While that decrease has alarmed fishers, it’s hardly unprecedented: landings were at similar levels in 2006 and 2007. And 2017′s haul was a near-record. And fewer boats fished St. Marys Bay last year.

Dalhousie’s Dr. MacNeil said the Coldwater Lobster Association’s predictions of collapse were hyperbolic.

“There’s a little bit more evidence that there might be a downward trend” in St. Marys Bay, he acknowledged. But “you’re still not in a place where as a fisheries scientists, you go, ‘Oh, this is trouble.’ ... It’s not something that’s a cause for concern – yet.”

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Cheryl Maloney of the Sipekne'katik First Nation sells 'Treaty Lobster' outside the gates of the Nova Scotia legislature on Oct. 16.

Darren Calabrese/The Globe and Mail


Conservation measures

The resilience of Atlantic Canada’s lobster industry owes something to long-standing conservation measures, many of which have been in place for more than a century.

Eastern Canada’s waters are divided into 39 Lobster Fishing Areas, or LFAs, and the rules vary among them. There are minimum sizes and gear restrictions: only traps, in limited numbers and specific designs, can be used. The number of licenses has been controlled, as have the number of traps per license.

The lobster fishery stands out from others in an important respect: There’s no limit to how much lobster can be caught. (Put another way, there’s no total allowable catch or quota.) But the industry has other restrictions. Most relevant to the current clashes in Nova Scotia: Fishing seasons.

Today, each LFA is open only during a specific part of the year. The timing varies considerably: Some are open only for two months, others are open 100 days or more. According to a 1995 report by the Fisheries Resource Conservation Council, closed seasons were introduced in the 1870s and were intended to protect lobsters during egg-laying and hatching, improve the quality of lobster meat, and limit the pace of exploitation.

Fishing outside the mandated season can confer a tremendous advantage. Dalhousie’s Dr. MacNeil said that catch rates in St. Marys Bay are highest in early autumn. That’s because lobster haven’t been fished for six months. They’re also hungry and growing rapidly.

“If you put out a trap right now, the average you get is between four and five kilograms per trap, per haul,” he said. “In February, if you put out a trap, you will get one kilogram per haul.”

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Richard Wahle, a professor at the University of Maine, noted that there’s no official lobster season on the U.S. side of the Gulf of Maine, an area that otherwise shares many of the same conservation measures present in Canadian waters. “I don’t think it’s had any bearing” on the health of U.S. lobster populations, he said.


Members of the Potlotek First Nation head out into St. Peters Bay on Oct. 1, observed as Treaty Day in Nova Scotia, as they take part in a self-regulated commercial fishery.

Andrew Vaughan/The Canadian Press


New participants, new rules

Historical records demonstrate that Mi’kmaq have been harvesting and trading fish at least since the 16th century. Their presence in the lobster industry was negligible during the 20th century, but that all changed in 1999 after the Supreme Court of Canada handed down a monumental decision.

Donald Marshall Jr., a Mi’kmaq, had been catching and selling eels without a license and was convicted of multiple fisheries-related offences by lower courts. But the Supreme Court found that Mr. Marshall possessed the right to do so under treaties signed between Mi’kmaq nations and the British in 1760 and 1761; DFO’s restrictions, including its imposition of a fishing season, infringed those rights.

Since then, three distinct First Nations fisheries have taken shape.

Following the Marshall Decision, the federal government purchased licenses to distribute to First Nations to facilitate their entry into the mainstream for-profit fishery. On-reserve revenues from the fishery soared, yet as of 2016, lobster landings by Mi’kmaq and Maliseet First Nations in Eastern Canada amounted to $50-million, or 4 per cent of the industry total.

In a retrospective on the Marshall Decision’s fallout published last year by the Macdonald-Laurier Institute, Ken Coates wrote there were early fears that the arrival of Indigenous harvesters would disrupt the commercial fishery. “It did not happen,” he observed.

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The Halifax headquarters of Clearwater Fine Foods Inc., shown in 2005.

Andrew Vaughan/The Canadian Press

But now First Nations are positioned to become much larger players. In November, a coalition of seven Mi’kmaq communities joined forces with Vancouver-based Premium Brands Holdings to purchase Clearwater Seafoods for about $1-billion. Clearwater’s fishing licenses are to be transferred to a partnership fully owned by Mi’kmaq, which will assume Clearwater’s status as the nation’s largest holder of shellfish licenses and quotas.

There’s another fishery for food, social, and ceremonial purposes, which is backed by an important Supreme Court decision. In 1990, in a decision in R. v. Sparrow, the court found that, after conservation and other “valid legislative objectives,” the rights of Aboriginal peoples to fish for food, social and ceremonial purposes superseded all other uses.

Separately, First Nations are now establishing commercial “moderate livelihood” fisheries based on the treaty rights as confirmed by the Marshall Decision. After that ruling, DFO could no longer dictate rules to First Nations in the same way it did with commercial fishermen. However, the Supreme Court addressed how First Nations fisheries should be regulated only in vague terms. “The treaty right is a regulated right and can be contained by regulation within its proper limits,” the court opined. More than two decades later, those “proper limits” remain undefined.

The Assembly of Nova Scotia Mi’kmaw Chiefs said DFO “has neither established regulations for a moderate livelihood fishery, nor have they engaged the Mi’kmaq in formal consultations on developing regulations.” But the Assembly insists Nova Scotia Mi’kmaq have the right to govern their own fisheries and “are still moving ahead.”

The Potlotek Mi’kmaw Community on Cape Breton Island declared that its members would “fish under their own guiding principles.” (In September, the Assembly of Nova Scotia Mi’kmaw Chiefs said it has supplied a copy of Potlotek’s lobster harvesting plan to Fisheries Minister Bernadette Jordan and requested consultations.)

In a written response to questions, Sipekne’katik First Nation (based near Truro, N.S.) said it will apply the same restrictions on gear, catch size and egg-bearing females followed by non-Indigenous fishers, and its participants will report the same data. As for enforcement, “the community has a comprehensive tracking system, and compliance officer who oversees fishery activity, catch and reporting.”

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However, its members are harvesting lobster during LFA 34′s closed season. The First Nation said seasonal restrictions “will be dictated by a joint conservation study currently under consideration by DFO jointly with Sipenkne-katik.

Fisheries Minister Bernadette Jordan speaks in Question Period on Sept. 29.

Justin Tang/The Canadian Press

Federal officials balked at the out-of-season fishing. “Until an agreement is reached with DFO, there cannot be a commercial fishery outside the commercial season,” Fisheries Minister Bernadette Jordan declared in a statement in September.

According to the Assembly of Nova Scotia Mi’kmaw Chiefs, DFO officers have seized more than 200 traps from St. Peters Bay in Cape Breton belonging to members of Potlotek and Eskasoni Mi’kmaw Communities. The Assembly called the seizures “unlawful” and demanded their return.

In a statement in mid-November, Minister Jordan said that DFO’s monitoring efforts have identified increased fishing activities in St. Peters Bay, more than could be accounted for by First Nations moderate livelihood activities.

“If fishery officers are concerned about excessive fishing negatively impacting long-term sustainability of lobster, they will need to take action – whoever is doing the fishing,” she stated. “I am asking that everyone respect DFO’s role.”

The Assembly has published guidelines for participants in moderate livelihood fisheries, should DFO or RCMP officers board their vessels. After providing basic identifying information on crew members, “tell them that you are fishing with or under the authority of your community’s government or that of another community who has permitted you to fish in their waters,” it says. And after that: “Say nothing else.”


Crates of live lobster harvested by Mi'kmaq are attached to the wharf in Saulnierville, N.S.

Darren Calabrese/The Globe and Mail


Uncertain harvest

The heart of the matter is this: What impact, if any, will additional harvesting by First Nations have on lobster populations? In October, Indigenous Services Minister Marc Miller said the First Nations fishery “is an infinitely small portion of the commercial fisheries. It’s very important for people to get that.”

Sipekne’katik First Nation said it has registered 550 traps and 11 boats. They operate in LFA 34, where more than 900 commercial vessels are registered every season. They’d caught about 100,000 pounds (45 metric tons) of lobster as of last week. “Currently the fishery poses no scientific or notable threat to the lobster fishery in any way,” wrote Corinne MacLellan, a Sipekne’katik spokesperson, in an e-mail.

In an interview, Mr. Berry, head of the Coldwater Lobster Association, disputed such contentions. By his organization’s reckoning, First Nations have deployed more than 6,000 traps in St. Marys Bay. “This just isn’t one band’s activity,” he said. “There’s eight or nine bands that are fishing up in St. Marys Bay.”

Challenged on the basis for his estimates, Mr. Berry acknowledged they were based purely on anecdotal evidence. But he blamed DFO for failing to police what he regards as an illegal out-of-season fishery.

Sipekne’katik’s early harvesting data allows for some comparisons. According to DFO, last year landings in St. Marys Bay amounted to 915 metric tons for all of the 2018-19 season. Dr. MacNeil said that Sipekne’katik’s data implied that its moderate livelihood fishery is catching twice as many lobster per trap as the commercial fishery does in St. Marys Bay during its peak, which occurs in the seasons’ first six weeks.

“Those very high catch rates and a total catch of 100,000 pounds is not inconsequential for lobster abundance within St. Marys Bay,” he said. But Dr. MacNeil added that the lack of abundance data makes it impossible to determine the actual impact that might have on local lobster stocks.

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It’s unclear whether, or how, DFO and First Nations can reconcile their parallel attempts to regulate how lobsters are harvested. But the two sides have powerful incentives to co-operate.

The U.S. lobster fishery south of Cape Cod has already collapsed. According to a paper published last year by researchers from the University of Maine’s School of Marine Sciences, that’s largely because ocean temperatures rose above the lobster’s comfort zone, leading to stress, disease outbreaks and die-offs.

But conservation measures might also have played a role in that collapse. In a paper published in 2017, researchers from the Gulf of Maine Research Institute and other bodies credited harvester-driven conservation efforts for helping facilitate record-breaking landings in the Gulf of Maine. “In contrast, in the warmer southern New England region, the absence of similar conservation efforts precipitated warming-included recruitment failure that led to the collapse of the industry,” they wrote.

Worried that Nova Scotia’s fishery might suffer its own decline over the next 15 years, Dr. MacNeil called for increased research that could provide early warnings, such as studies into environmental conditions in Nova Scotian waters, combined with a fishery-independent surveys of catches.

“I want to be studying this stuff now, so that when we get to that point, we’ll know what to do,” he said.

Nikita Paul, right, works on the lobster boat in St. Marys Bay with crewmates Andrew Robinson and Evan Dennis.

Darren Calabrese/The Globe and Mail

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