Federal Fisheries Minister Bernadette Jordan is standing behind Ottawa’s consultation process, as some Nova Scotia First Nations voice opposition to its proposal for moderate livelihood fisheries.
The proposal released Wednesday invited nations to negotiate short-term fishery plans with her department, which would allow them to fish and sell their catch with DFO authorization this spring, on the condition that fishing is confined to the commercial season.
It was touted as a “new path” for First Nations that want to pursue community-based fisheries — a right protected both by treaties and the Supreme Court of Canada’s 1999 Marshall decision — while they work towards long-term Rights Reconciliation Agreements with the federal government.
It was promptly rejected, however, by some First Nations leaders in Nova Scotia, who say they weren’t consulted on the seasonality condition, nor has Ottawa proved its restriction is justified on the basis of conservation.
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“These were conversations that we had with First Nations, we absolutely listened to what they had to say,” said Jordan, speaking about the stipulations of the livelihood fisheries proposal.
“There are some who walked away from the table. We would welcome them back at any time if they want to be part of this process.”
Jordan wouldn’t reveal whether any of the First Nations she consulted explicitly supported fishing during the commercial season only, but said each short-term fishery plan can be tailored to meet individual needs. First Nations will be empowered, for example, to decide how they distribute the DFO licenses to vessels and harvesters in their community.
They will not pay for those licenses, which will come from a combination of DFO’s existing bank of available licenses and any license holders who volunteer to sell one.
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Bruce Wildsmith, legal advisor to the Mi’kmaq Rights Initiative, said in a virtual press conference on Thursday that the federal government has the authority to restrict Indigenous fishing on the grounds of conservation, but only if it can show that infringement is justified.
To date, he added, DFO has not presented any scientific evidence to suggest small-scale livelihood fishing would damage fish stocks, although a meeting has been scheduled for March 5, during which the seasonal restrictions will be discussed.
While the Mi’kmaw were consulted on less “controversial” topics in the development of this proposal — such as escape hatches on lobster traps and the prevention of whale entanglement in equipment — Wildsmith said there was no consultation in advance about being restricted to the commercial season.
“For them to make a unilateral decision without consultation was extremely shocking,” said Gerald Toney, fisheries lead for the Assembly of Nova Scotia Mi’kmaw Chiefs and chief of the Annapolis Valley First Nation, during the presser.
Chief Toney said he shares DFO’s conservation concerns, but his community will proceed with its own moderate livelihood fishery plan — without DFO approval if necessary — based on the Mi’kmaw principle of never taking more than you need.
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As it stands, Jordan said 35 First Nations in Canada have moderate livelihood fishing rights protected by the Marshall decision.
First Nations who pursue moderate livelihood fisheries without DFO’s blessing, however, may still face consequences. The department will increase enforcement officer presence on the water in the spring season, both to keep the peace and ensure all federal fishing rules are followed.
Asked how true nation-to-nation negotiation can take place while Ottawa still has disciplinary power over First Nations harvesters who fish without a DFO license, Jordan said this proposal is a result of that nation-to-nation negotiation already.
“We actually have developed these plans by hearing from First Nations what they want to see in them,” she explained.
“We have to make sure this is something that can happen for generations to come, and to have a fishery outside of a season that’s a DFO-approved season puts that at risk, and we can’t take that chance.”
She said a decision has not been made yet on whether moderate livelihood fisheries may take place outside the commercial season in the long-term. In the short-term however, her department will work with First Nations “on every other aspect of the fishing plans” to ensure community needs are met.