Mi'kmaq power, inside and beyond Ottawa, stronger than in past fishery battles

HALIFAX — When Jaime Battiste was in his early 20s, cable news channels were full of images of Mi'kmaq fishermen in New Brunswick battling federal fisheries officers over seized lobster traps.

Now, Canada's first Mi'kmaq MP is on the inside of federal power, trying to help as the launch of an Indigenous lobster fishery in St. Marys Bay in Nova Scotia meets fierce resistance.

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"I wonder if they ever thought, 20 years ago, that they'd have two Mi'kmaq senators and a Mi'kmaq MP who could help influence and work with government to find a solution," the Liberal MP said in a recent interview from his Cape Breton riding.

His role is seen by some observers as one sign Mi'kmaq political influence is gradually growing, when compared to the clashes off Burnt Church, N.B., in Miramichi Bay, between 1999 and 2002.

Curtis Bartibogue, a Mi'kmaq lobster fisherman who was arrested by Department of Fisheries and Oceans officers during that earlier unrest, said public knowledge of treaty rights remains poor, but governments are more reluctant to bring in enforcement crackdowns.

"There's a big difference now between government and Indigenous relationships due to our ability to have our voices within government," he said in an interview Friday from his community, now known as Esgenoopetitj First Nation.

He recently was following closely as Sipekne'katik First Nation held a ceremony on Sept. 17 at Saulnierville wharf in southwestern Nova Scotia, issuing five lobster licences.

Like Esgenoopetitj, the Nova Scotia community cites the 1999 Supreme Court of Canada decision stating Donald Marshall Jr. had a treaty right to fish for eels when and where he wanted, without a licence.

The Marshall decision also said the Mi'kmaq, Maliseet and Passamaquoddy bands could hunt, fish and gather to earn a "moderate livelihood,'' though the court followed up with a clarification two months later, saying the treaty right was subject to federal regulation.

As in earlier crises, opposition from non-Indigenous fishermen has been based on arguments that the First Nations must abide by Ottawa's conservation measures, and out-of-season fishing is therefore illegal.

Hundreds of non-Indigenous fishermen gathered for protests at wharfs after the new Nova Scotia fishery was announced this month, and later a flotilla hauled 350 Mi'kmaq traps from the water.

However, the reaction from Ottawa has followed a different pattern from the early 2000s.

Senators Dan Christmas of Membertou First Nation and Brian Francis from Lennox Island First Nation issued a letter noting the Mi'kmaq had treaty rights to hunt, fish and to earn a moderate livelihood.

Fisheries Minister Bernadette Jordan and Indigenous Relations Minister Carolyn Bennett said in a Sept. 21 statement they won't tolerate vigilante action on the water, saying there's "no place for the threats, intimidation, or vandalism."

By Friday, Chief Mike Sack of the Sipekne'katik First Nation, confirmed he would hold talks this week with Jordan and her officials on defining what his community's moderate livelihood fishery might look like.

And the First Nation's boats kept fishing.

Meanwhile, Battiste and the Mi'kmaq senators met Friday at the Membertou First Nation in Cape Breton and held online discussions with Jordan and Bennett.

Battiste, a lawyer who has taught university courses on Indigenous treaties, says he's advocating the concept of co-managed fishing systems, with Mi'kmaq representatives having a direct say in regulations. "It could be the Canada-Mi'kmaq Fishing Authority. I'm not sure if federal legislation is required," he said.

It remains to be seen how influential the 41-year-old MP's views will be.

Naiomi Metallic, the chair in Aboriginal law and policy at Dalhousie University, said a negotiated solution is needed that recognizes treaty rights and includes a "significant and meaningful role for Mi'kmaq management of their own fishery."

She said to date the DFO response has been an initiative to provide commercial licences to some Mi'kmaq communities willing to participate, but it hasn't settled the issue of a moderate livelihood fishery under Indigenous control.

"Canada has been dragging and dragging its feet at the negotiation table and people are fed up," she said.

Bartibogue, who now holds a commercial licence, said his community accepted the DFO licences after years of battles, but he said the push for more control will continue.

He said his community just completed a two-week "treaty fishery" where he estimated about 500 traps were set for a total lobster catch of approximately 20,000 pounds.

"We basically did like what they're doing in St. Marys' Bay .... We just finished it yesterday and it went off pretty well," he said.

Battiste wouldn't speculate on how large a moderate livelihood fishery for his people would be.

"We will work with the government to figure out what is possible .... At the end of the day, we can't have continued hostilities on the water that flare up like this," he said.

This report by The Canadian Press was first published Sept. 27, 2020.

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