'We'll define our own moderate livelihood,' First Nation Chief says of Treaty right to fish
Published Thursday, September 24, 2020 9:24PM ADT Last Updated Thursday, September 24, 2020 9:33PM ADT
SAULNIERVILLE, N.S. -- A week after a Mi'kmaq First Nation launched its own lobster fishery in southwest Nova Scotia, a Liberal member of parliament is breaking with his party, asking the government to clarify what's permitted.
The Supreme Court has ruled Indigenous people have a right to earn a moderate livelihood, but it's not clear what that means.
On Thursday, fisherman from Sipekne'katik First Nation held their position on the wharf overlooking St. Marys Bay as the RCMP parked nearby.
"There's no definition exactly," said Chief Michael Sack of Sipekne'katik First Nation. "We're here to fish, collect data, go back to our community, and have consultation with our community."
In a letter, Kings Hants Liberal MP Kody Blois voiced his support for the First Nations fishery, but also notes there needs to be clarification around what moderate livelihood means.
"The court has not defined it and, of course, because we don't have some of the certainty that I've mentioned, I think that's where some of the tension lies," Blois said.
He also suggests Ottawa use its authority to regulate a moderate livelihood fishery.
"It's an option," Blois said. "Whether or not that's an option our government pursues, I don't want to speak to that ... That doesn't seem to be a case."
The coast guard was in the air on Thursday and, on the ground, the RCMP continued to receive complaints about uttering threats and vandalism.
Chief Sack is accusing the commercial fishermen of stealing his crews' gear.
"They've been interfering with our fisheries the whole step of the way," Chief Sack said. "Right from the wharf here to the water."
CTV News tried to speak with commercial fishermen on Thursday, but they said they've hired a public relations firm and were told not to talk right now.
Constitutional expert shares insight
At issue is whether a Supreme Court decision from 21 years ago, known as the Marshall decision, that affirmed the right of Indigenous groups in Eastern Canada to fish and hunt for a "moderate livelihood" enables Indigenous fisherman to catch and sell lobster outside regular fishing season.
Wayne MacKay, a professor Emeritus at Dalhousie Law School who teaches constitutional law, said the term "moderate livelihood" was not defined in the Marshall decision, but notes the 1760 and 1761 treaties talk about the right for Indigenous people to continue to hunt and fish for "necessaries."
"There's two questions left unanswered, I think," MacKay said. "How broad are these necessaries that people from the First Nation can hunt and gather, and then how many can they do in this moderate livelihood without becoming a commercial fishery?" MacKay said.
"The main thrust of the Marshall decision is that the federal government should define what the moderate livelihood is and what limits should be put on it in consultation with the First Nations," MacKay said.
As for the definition of what a moderate livelihood is, Chief Sack says it's up to the Sipekne'katik First Nation.
"We'll define our own moderate livelihood," he said. "We're not here to have anybody decide anything for us."
When asked about Blois' suggestion to regulate the fishery, the minister's office says "it is not the minister's view or the government's position."
"That letter does not reflect the position of the government or the minister's views," said Jane Deeks, press secretary with the Minister of Fisheries and Oceans Bernadette Jordan. "We are not talking here about regulating or infringing on their right. We want to work with them to implement it."