Why the term ‘moderate livelihood’ is at the centre of N.S.’s fishery dispute

A stand-off over lobster fishing in Nova Scotia is bringing a 268-year-old treaty to light after tensions between Indigenous and non-Indigenous fishermen escalated to violence over the weekend.

A lobster pound in Middle West Pubnico, N.S. was burned to the ground Saturday, destroying the lobster catch of Mi’kmaw fishers. Last week, two clashes involving hundreds of people took place outside fish plants that store Indigenous-caught lobster.

The fishery dispute in Nova Scotia centres around Indigenous hunting and fishing rights, specifically from a treaty signed in 1752 and 1760-61, between the Mi’kmaq and the British Crown. The Peace and Friendship Treaty that was signed is still valid today.

The treaty states that Mi’kmaw have the right to hunt, fish and gather for the purposes of earning a moderate livelihood. The rule was also affirmed in a Supreme Court of Canada case 21 years ago.

In 1999, Donald Marshall, an Indigenous man, was accused of illegally fishing for eels. The court ruled Marshall and other Indigenous people had a treaty right to fish year-round and earn a moderate livelihood selling the catch without a commercial licence.

Marshall was supporting himself and his family, not operating a large-scale commercial fishery, the case stated. The judge described “moderate livelihood” as including “basics such as ‘food, clothing and housing, supplemented by a few amenities,’ but not the accumulation of wealth.”

A few months after the court case, the Supreme Court clarified that the federal government can still regulate Indigenous fisheries if “conservation” is a concern. But even after this clarification, there still was never a clear definition of what a  “moderate livelihood” means.

But the ruling left many gray areas – including the practical definition of “moderate livelihood” – leading Mi’kmaw fishermen to begin catching lobster outside the federally mandated fishing season, raising the ire of local commercial lobster fishers.

Non-indigenous fishers, like the ones in Nova Scotia, have argued that “moderate livelihood” means the conservation of fish and lobster could be at stake.

The Department of Fisheries and Oceans (DFO) only allows lobster fishing during specific seasons to coordinate with moulting schedules that make them vulnerable and easily killed, but Indigenous fishers say they have a right to fish when and where they want, as defined in the treaty.

Nova Scotia’s non-Indigenous fishers have called for the Sipekne’katik’s First Nation’s fishery (part of the Mi’kmaw) to be closed, saying it is illegal and a threat to the environment.

Defining ‘moderate livelihood’

The meaning of moderate livelihood comes directly from the 1999 Marshall decision, said Naiomi Metallic, an assistant professor and chancellor’s chair in Aboriginal law and policy at Dalhousie University.

The term is a modern-day meaning of the language that was used by the British in the 1960-61 treaty, she said. That’s because the definition of “moderate livelihood” differs in both the context and language of today compared to when the treaties were signed hundreds of years ago,

“The court said in modern-day life, necessaries means moderate livelihood. They said it provides a right for food, clothing and housing, supplemented by a few amenities. But it’s not a right to the accumulation of wealth,” Metallic explained.

Constance MacIntosh, an associate professor at Dalhousie University’s Schulich School of Law said the language of moderate livelihood means “there is limited commercial fishery.”

But when it comes to how many fishing traps are allowed or how many licences can be handed out, there isn’t a set number.

“The decision on how to regulate is the community’s right, the First Nation can regulate their own industry. So the Mi’kmaw fishers have an opportunity to define how they understand the extent and limits of moderate livelihood and then discuss it with the federal government,” she said.

The First Nation, she said, can decide what the community needs are, such as affordable housing, good education and ability to become self-sufficient.

In an interview with The West Block‘s Mercedes Stephenson over the weekend, National Chief of the Assembly of First Nations Perry Bellegarde said there is work that needs to be done on defining the right of Mi’kmaw lobster fishers to fish for a “moderate livelihood.”

“Defining that moderate livelihood is the next big step going forward,” he said, adding that the work needs to be done in collaborating with the DFO.

Bellegarde added that the issue is not one of conservation because the Mi’kmaw lobster fishers access a small fraction of the lobster fishery in question, and that the challenge is finding how to move forward.

“It’s more in the sense of, how does everybody start working together to peacefully coexist,” he said.

Sipekne’katik First Nation Chief Michael Sack told Global News that despite the treaty allowing Indigenous people the right to fish, members of his community are scared and feel “beat down and defeated” to fish now that they are being threatened.

“We shouldn’t even be fighting over this. It’s our constitutional right and we’re not going anywhere,” he said.

N.S. premier asks feds for clarification

On Saturday, Nova Scotia Premier Stephen McNeil urged Ottawa to define what constitutes legal harvesting in a “moderate livelihood” fishery.

In a statement Saturday on Twitter, McNeil said the federal Department of Fisheries and Oceans needs to answer the question of what a moderate livelihood looks like before the province can examine its own rules for fish buyers.

He said Nova Scotia’s regulations rely on the federal department’s “authority and responsibility to manage the fishery and identify what are legal, licensed fisheries.”

McNeil added that the province is working with Ottawa to find a facilitator to “bring the sides together.”

— With files from Global News’ David Lao, Amanda Connolly  and the Canadian Press

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