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The Sipekne’katik First Nation launched its ‘moderate livelihood fishery’ in September on the 21st anniversary of Supreme Court ruling that affirmed the Mi’kmaq right to fish for a living outside the federally regulated season

The crew of the Sea Bug sort lobster aboard their boat, part of the Sipekne’katik First Nation’s moderate-livelihood fishery, in St. Marys Bay off the Nova Scotia coast. At the rear in the red shirt is captain Levi Paul Sr. DARREN CALABRESE/THE GLOBE AND MAIL

The little boat is chugging away from the wharf under a dull sky when captain Levi Paul Sr., his cigarette down to a nub, flips on the speaker. Bob Marley’s Get Up, Stand Up starts echoing through the cabin and his four-person crew begin nodding their heads.

The tension that everyone feels back in Saulnierville, N.S., is quickly fading as the boat closes in on its first buoy. First mate Andrew Robinson hooks it with a long pole, attaches the rope to a mechanical hoist and soon a trap full of squirming lobsters is pulled from the sea.

On shore, the Mi’kmaq captain and crew of the Sea Bug are treated as criminals by some, shunned by marine mechanics, bait suppliers and trap makers who refuse to do business with them. To get to the wharf every day, they have to pass an RCMP checkpoint intended to keep away the commercial fishermen who say Mi’kmaq people – among the poorest in Nova Scotia – have no right to be here.

Their band, the Sipekne’katik First Nation, launched its “moderate livelihood fishery” in September on the 21st anniversary of the Marshall decision, the landmark Supreme Court ruling that affirmed the Mi’kmaq right to fish for a living outside the federally regulated season.

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Donald Marshall Jr., shown in 1984.Andy Clark/UPC

The new fishery owes its legal foundation to Donald Marshall Jr., the late Mi’kmaq activist who fought to change the laws around Indigenous fishing rights in Canada. In interviews, his family told The Globe and Mail they were inspired by the Sipekne’katik action, and disturbed by the violence that has followed it.

Family members say Mr. Marshall, who was shy and uncomfortable in the spotlight, fought for Mi’kmaq people in large part because of injustice he personally experienced. He’d be frustrated to see many of the hurdles that faced Indigenous fishermen in his era are still firmly in place, said his widow, Colleen D’Orsay.

“It’s déjà vu, like watching this all over again,” she said. “He didn’t want his children, and their children, to grow up in abject poverty. … He did this for his people.”

Out on the protected waters of St. Mary’s Bay in southwestern Nova Scotia, the crew of the Sea Bug are hopeful for the future, proud to be Mi’kmaq and earning a living on the ocean.

“Being out here, we feel at home,” said Mr. Paul, who bought his used boat with money his late grandfather left him after a long battle with dementia.

“This means everything to me. We’re not trying to get rich. We’re doing this because it’s a way for us to provide for our families.”

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Mr. Paul steers the Sea Bug as they harvest from traps in St. Marys Bay.Darren Calabrese/The Globe and Mail

Mr. Paul and Mr. Robinson, along with lobster handlers Nikita Paul and Kaitlin Marr and deckhand Evan Dennis, have been working together since September. They move quickly as each trap is hauled onboard, throwing undersized lobsters back and marking females before returning them to the sea, practices that help conservation.

The moderate livelihood fishery has also prompted no shortage of protest from commercial fishermen, many of whom have paid $800,000 or more for a lobster licence and must fish within a restricted season designed to control supply and prices. They argue the Sipekne’katik fishery, as small as it is, is a threat to their livelihood.

The Sea Bug, flying the red and white Mi’kmaq flag, is a sturdy, 35-foot used vessel with a fibreglass hull and a hole in the deck left from an old engine fire. It’s undersized by modern standards, but comfortably carries the 20 or so traps they pull up each day – a far cry from the 350 traps most commercial fishermen haul up daily.

Mr. Paul, 38, has big hopes for the future. He wants to buy a bigger, better boat, and one day move out of his mother’s crowded house and into a home of his own. He wants his children to join him as fishermen, when it’s safe again. But as happy as he is on the water, Mr. Paul is also worried.

The Sipekne’katik fishermen are running out of time to find a market for their lobster. Many of Nova Scotia’s seafood buyers are refusing to purchase the band’s catch, largely because of pressure from commercial fishermen. The province only recognizes federally issued lobster licences – not the 10 that the First Nation issued to its own people as part of its new fishery.

Sipekne’katik is seeking an exemption from the province and a change to regulation that would allow it to sell its own lobster directly to the market. For now, it keeps harvesting lobsters and storing them at a facility under guard by a group of young Mi’kmaq men from Cape Breton.

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A man tends to a fire at a checkpoint set up by the Sipekne'katik First Nation at the wharf in Saulnierville, N.S.Darren Calabrese/The Globe and Mail

Every day, the cost of going back out on the water adds up.

Sipekne’katik Chief Mike Sack says lobster money will allow his people to take control of their lives, buy new clothes for their kids and break the cycle of poverty that has plagued the Mi’kmaq for generations. “These fishermen, they become entrepreneurs,” the chief said. “They bank it, they build their own homes, they create jobs and that helps us collectively. It helps community morale.”

Vandalism has only increased their costs. Mr. Paul says he lost $7,000 in traps when commercial fishermen cut Sipekne’katik gear out in the bay in protest of the band’s fishery. But for two men who have been fishing together since they were teenagers, nothing surprises them any more.

“This ain’t nothing new. We’ve been dealing with this for years,” said Mr. Robinson, the 39-year-old first mate. “They say ‘Fish alongside us.’ Well, we tried that.”

Even though it’s been 21 years since the Supreme Court ruled that Canada must recognize Indigenous fishing rights, Mi’kmaq fishermen are still fighting much of the same prejudice over their right to earn a moderate living on the water.

Some non-Indigenous fishermen have never welcomed the sight of Mi’kmaq people on the water, arguing the Indigenous fishery fuels a black market that undercuts their prices. They’ve thrown sandbags on Mr. Levi’s boat trying to sink it. Snowplows have pushed their traps off the wharf and into the water. When Mr. Robinson’s boat broke down outside Shelburne, N.S., a few years ago, he says white fishermen circled him and taunted him with racist slurs instead of offering help.

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A fishing outing on the Sea Bug: At top, Nikita Paul carefully returns a pregnant female lobster to the water, and at bottom, a warrior flag flies from the bow of the ship.Photos: Darren Calabrese/The Globe and Mail

Twenty-six years before the Sea Bug was hauling lobster out of St. Mary’s Bay, another Mi’kmaq fisherman found himself in trouble for pulling up nets filled with eels from Pomquet Harbour, N.S.

Mr. Marshall, a member of Cape Breton’s Membertou First Nation, was accused of catching eels with illegal nets, out of season and without a licence, in 1993. When officials from the federal Department of Fisheries and Oceans told Mr. Marshall to stop fishing, he didn’t comply – and was charged and convicted when he sold his 210 kilograms of eels for $787.

He spent six years fighting that conviction, taking it all the way to the Supreme Court of Canada, which ruled he had a right to fish and hunt for a “moderate livelihood” as part of historical treaty rights that the Mi’kmaq had been granted in 1760 by the British Crown.

Eel fishing for Mr. Marshall wasn’t just for an income. Being on the water was therapeutic and helped him deal with his post-traumatic stress disorder from the 11 years he spent in prison for a crime he didn’t commit, his widow, Ms. D’Orsay said in an interview.

His wrongful conviction for murder at the age of 17 in the 1971 stabbing death of his friend, a Black teenager named Sandy Seale, left him forever damaged, she said.

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Mr. Marshall testifies at a 1988 inquiry about the 1971 killing of Sandy Seale, for which he was wrongfully convicted.Doug Ives/The Canadian Press

A rebellious youth who got into trouble with the law for petty thievery, Mr. Marshall was the victim of a justice system that too often saw young Mi’kmaq men as little more than criminals.

On the night of May 28, 1971, he ran into Mr. Seale, on his way home from a dance, in a park in Sydney. The pair were chatting when two older white men, Roy Ebsary and Jimmy MacNeil, asked them for a light for their cigarettes. A confrontation followed after Mr. Ebsary made racist remarks, before stabbing both young men.

The two older men fled the scene, but Mr. Marshall stuck around to help his friend. Mr. Seale died of his wounds the next day. A deeply flawed investigation by the Sydney Police Department zeroed in immediately on the Mi’kmaq teen as the prime suspect.

Convicted after only three days of trial, he wasn’t fully exonerated until 1990. Even the Nova Scotia Court of Appeal decision that acquitted Mr. Marshall absolved the police of any responsibility and was hesitant to admit there had been a miscarriage of justice.

His case exposed the systemic racism in Nova Scotia’s antiquated courts and made him something of a folk hero among Mi’kmaq.

“The whole thing was orchestrated by a bigoted cop. It brought a focus onto just how racist Canada was,” said Daniel Paul, a Mi’kmaq historian and author of We Were Not the Savages. “The racism was much, much worse at that time. If you were Mi’kmaq, you could be chucked in jail for pretty much nothing.”

Mr. Marshall’s wrongful conviction helped modernize the province’s courts, Mr. Paul said. It prompted a Royal Commission in 1990, which made 82 recommendations to redesign the justice system, including ending the practice of appointing judges based on political connections instead of their qualifications.

The real killer, Mr. Ebsary, was convicted of manslaughter in the death of Mr. Seale and sentenced to just three years in prison, a sentence that was reduced to just one year by the Nova Scotia Court of Appeal in 1986.

Mr. Marshall’s time in prison left him with scars that never healed. He witnessed riots, beatings and unspeakable violence. Many years after his release, he was still haunted by the violence he saw inside, his widow said.

“He used to have night terrors, he’d wake up screaming. He’d dream he was being buried alive in prison,” Ms. D’Orsay said. “That conviction had a devastating effect on him and his family. Imagine being 17 years old and realizing that your parents can’t save you. He realized that the white world was not safe for native people.”

The wrongful conviction also gave Mr. Marshall, who became a reluctant activist for Indigenous rights, an understandable suspicion of authority.

His push for Indigenous fishing rights made him a target. Ms. D’Orsay recalls a time at a bar in Sydney when some men tried to start a fight with Mr. Marshall over the decline of the cod fishery – an issue his Supreme Court battle had nothing to do with.

“Fishermen followed him into the bathroom and were trying to have an altercation with him,” she said. “He was responsible in these fishermen’s eyes for the collapse of the entire fishery. It was crazy.”

Mr. Marshall, known as “Junior,” died in 2009 at the age of 55, his kidneys failing and suffering from chronic obstructive pulmonary disease.

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Members of the Sipekne'katik First Nation attend a Sept. 17 ceremony in Saulnierville to bless the moderate-livelihood fishing fleet on its debut launch.Andrew Vaughan/The Canadian Press

His widow went to Saulnierville last month with their son, also named Donald Marshall, to watch the launch of the moderate livelihood fishery on the anniversary of the Marshall decision.

Mr. Marshall’s 12-year-old son struggled to put into words what he felt when he went to the wharf. But he wrote a letter after his interview, saying he was proud of his father’s legacy and bothered by the protests and violence that have come in response to the moderate livelihood fishery launched in his name.

“It’s horrible what’s happening to our fishers and honestly, I’m shocked at how my people have the integrity to keep pushing through and to honour our ancestors,” he wrote. “Tell them that one day we will have our rights to hunt and fish and that day will come soon.”

The band symbolically gave its first licence to Mr. Marshall’s eldest son, Randy Sack. The protests, racism and violence that have followed reminds Ms. D’Orsay of what happened after her husband’s Supreme Court treaty-rights challenge all those years ago.

How little things had changed.

“Back then, he was very frustrated that the Canadian government was not holding up their end of the bargain. And sure enough, that’s still happening now," she said.

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At top, David Kendrick walks between the remnants of two destroyed buildings that were once part of a lobster pound in Middle West Pubnico, N.S. The pound, which Mi'kmaq fishers used to store their lobster, was destroyed in a suspicious fire. Attacks on the fishers have brought more RCMP to the area, like the ones at bottom forming a checkpoint at the wharf in Saulnierville.Photos: John Morris and Darren Calabrese/The Globe and Mail

Randy Sack was nearly done unloading the last of the lobster on Oct. 13 when he noticed a pickup truck pull a U-turn and loop back slowly in front of the fish storage plant. Soon, the headlights of dozens of trucks were cutting through the foggy Nova Scotia night.

Mr. Sack and his friend, Jason Marr, two Sipekne’katik fishermen, hurried inside and locked the entrance. The men who had followed them began pounding on the door as more vehicles, carrying more fishermen, arrived. Then rocks started flying through the windows. The crowd outside was turning into a mob, threatening those inside while someone vandalized and burned his friend’s van.

“It was crazy,” he said, recalling the incident in Middle West Pubnico. “The trucks just kept coming. The next thing I knew there was probably 150 people out there, all within 20 minutes. They had us cornered."

The RCMP, who were unable to control the crowd, told the pair to leave the facility. They watched as the mob ransacked the building, removed their lobster and dumped them outside. No one was arrested.

Mr. Sack, 34, knows full well how the sight of a Mi’kmaq man fishing outside of the federally controlled season can stir up anger. His father’s legacy taught him that. As a boy, Mr. Sack spent his summers with his father near Antigonish, fishing for eels in the sheltered bays off the Northumberland Strait. Mr. Marshall didn’t talk much about his Supreme Court fight. It was more important to just be spending time together on the water. “For me, it was just a fun thing I did with my dad. He always had me laughing. I didn’t have any idea about all the stuff that was involved in it,” Mr. Sack said. “But now, I know this is our right, and I’m going to exercise it.”

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A forklift lies in the charred remains of the Middle West Pubnico pound.John Morris/Reuters

The lobster storage facility that Mr. Sack was trapped inside was burned down three nights later in a suspicious fire. Nova Scotia RCMP say a “person of interest” in that blaze remains in hospital with life-threatening injuries.

While two people have been charged in violent incidents since the fishery protests began, the RCMP have been heavily criticized by Indigenous leaders, members of the public and politicians in Nova Scotia and Ottawa for the lack of arrests, prompting calls for RCMP Commissioner Brenda Lucki’s resignation.

Commercial fishermen have also blamed Ottawa for the conflict and are angry at being left out of negotiations around Indigenous-managed lobster fisheries. Late Friday night, the federal government announced it had appointed a federal special representative to act as a neutral third party in the dispute and work to ease tensions on both sides.

The Sipekne’katik band is also pushing back. It’s hired lawyers who have been taking affidavits to press police for charges against people accused of damaging and destroying property, assault, harassment and making threats.

Most of the abuse has happened out of the public eye, Sipekne’katik Chief Sack said. Just as troubling is the effort to shut the Mi’kmaq band out of the lobster market, with commercial fishermen threatening any supplier who tries to do business with them, he said.

Jim Michael, a lawyer with the Pink Larkin law firm, said dozens of band members have come forward to share their stories of intimidation and vandalism. “A great deal of things happened either on the water or out of the view of cameras and social media that need to be accounted for,” he said.

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Mi'kmaq fisher Kaitlin Marr bands lobsters on the Sea Bug.Darren Calabrese/The Globe and Mail

The crew of the Sea Bug, meanwhile, say they’ll keep fishing. For them, and many Mi’kmaq, the fight over the lobster fishery isn’t just about asserting treaty rights. It’s also seen as a way out of poverty.

In Indian Brook, N.S., home to the Sipekne’katik First Nation, it’s not uncommon for 12 people to share one 1,200-square foot house. The community of around 1,300 residents says it has a shortage of around 400 homes. Nearly 68 per cent of Sipekne’katik families live below the poverty line, according to a 2015 study by the Canadian Centre for Policy Alternatives. More than half of all children in Mi’kmaq communities around the province live in poverty – nearly three times the average rate in Nova Scotia.

“We have whole families living in one bedroom,” Chief Sack said. “You drive down the road with winter coming on, and you see kids walking without a winter coat. It’s that kind of stuff.”

A dozen years ago, Mr. Paul, the Sea Bug captain, didn’t have many job prospects. He was a junkie, stealing five-gallon water bottles for the deposit. But since getting clean, fishing has given him a chance at a better life.

As a young Mi’kmaq man with a criminal record, it’s one of the few areas where he can work and employ others, Mr. Paul said. He says job opportunities remain limited for Indigenous people in Nova Scotia.

“All they see is the colour of my skin,” he said, referring to stores around Indian Brook that have turned him down from job postings. “Without this, my kids wouldn’t have a future. I’m doing this for them.”


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