Indigenous commercial fisheries have quadrupled since Marshall decision

An academic who studied Canada's response to the Marshall decision said it has been a First Nations success story fuelled by a four-fold increase in band-held commercial fishing licences that have generated dramatically higher revenues.

This is despite "understandable" frustration the Mi'kmaw and Maliseet feel as they have yet to achieve the moderate livelihood fishery promised them in the 1999 landmark Supreme Court of Canada case, said Ken Coates, a senior fellow with the Macdonald-Laurier Institute.

"The federal government spent a lot of money and over a long period of time. But they actually got a fairly good return. It doesn't mean that all the issues are resolved, as we know, in Nova Scotia, but at least they've been trying," said Coates.

In a study published last fall by the Macdonald-Laurier Institute, Coates examined the impact of the Marshall decision on its 20th anniversary.

Some of the study's key findings include:

• Ottawa spent $545 million buying out commercial licences and building capacity so First Nations could enter the commercial fishery in a meaningful way.

• Maritime bands hold 1,238 commercial fishing licences, up from 316 in 1999.

• In 2016, those licences generated $152 million in revenue, up from $3 million in 1999.

• The bands operate 320 vessels, employ 1,461 harvesters and 234 captains.

The Nova Scotia numbers

First Nations have taken advantage of the entry provided by Ottawa, accumulating more licences as their fisheries grew.

According to Coates, Pictou Landing had one community-owned lobster boat in 1999. Today it owns 20 boats and holds 13 lobster and eight snow crab licences.

In Cape Breton, Eskasoni holds 11 of 28 shrimp licences in the province.

In Nova Scotia, the 2016-17 season generated $52 million in band revenue from a variety of species

Coates said the impact has been substantial in First Nations communities, reflected in improved income, business development and unemployment rates.

"What is really hard to quantify, but it is there in those numbers somewhere, is actually the impact on pride, self-worth, the sense of control of their own destiny," Coates said.

"One of the things the Marshall decision did was it recognized something that non-Indigenous people had failed to recognise for 200 years. And that was that their 18th century treaties were valid, were alive and guaranteed you a place in the economy."

The unfinished business of 'moderate living'

Guaranteeing the Mi'kmaq the constitutional right to a "moderate living," without defining it, has been an ongoing source of frustration for First Nations and uncertainty for the industry.

Coates does not share the view of some Mi'kmaw leaders who blame the federal government entirely for failing to define it in regulation.

"It isn't fair to say the government of Canada has ignored that. They've tried to negotiate it. It isn't fair to say the Mi'kmaq have ignored it. They pushed really, really hard," he said.

"It is such a strange requirement that it really begs the question why the Supreme Court put it there in the first place. But it is a constraint on the aspirations and ambitions of First Nations in Nova Scotia. And I don't blame them for being frustrated."

Tensions erupt after years of calm

In 2019, the Sipekne'katik First Nation in Nova Scotia sold lobster on a Digby wharf to make a statement about their treaty rights.

In September, Sipekne'katik launched a self-regulated "moderate livelihood " lobster fishery. It's taking place while the commercial season in the area is closed.

Commercial fishermen pulled band traps and dumped them at a nearby DFO office with a sign attached reading "evidence." Mike Sack, chief of Sipekne'katik First Nation, said those tensions have eased and talks are progressing with the federal government.

The band, which holds 30 commercial fishing licences, said it's exercising the treaty right recognized by Marshall decision.

So far, 10 licences have been issued to band members who receive 50 lobster trap tags.

The numbers involved in the livelihood fishery so far are minuscule compared to the commercial fishery — a single commercial lobster boat carries 350 traps.

Why a tiny fishery today is a big deal

Two other Nova Scotia bands are poised to launch their own self-regulated fisheries outside DFO regulations and seasons.

Coates said it's no surprise moderate livelihood has commercial fishermen concerned.

"It has created this enormous uncertainty for the non-Indigenous fishers. You don't know where it's going to go," he said.

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