Sipekne'katik First Nation sues Nova Scotia over restrictions on buying Mi'kmaw lobster

Sipekne'katikFirst Nation is suing theNova Scotia government over regulationsrestricting the purchaseof seafoodharvested outside federal or provincial regulations, claiming the rules infringe ontreaty rights.

The Mi'kmaw band launched its self-regulated lobster fishery in September 2020.Their treaty rightto hunt, fish and gather in pursuit of a "moderate livelihood" was affirmed in 1999 by theSupreme Court of Canadadecision in the case of Mi'kmawfisher Donald Marshall Jr., of Membertou First Nation.

But discussions with the federal government over howtreaty rights would be adopted into Canadian law have been fruitless, Mi'kmaw officials say.

"I think we've exhausted all other avenues," said Sipekne'katik Chief Mike Sack.

"If the province looked at the treaties, [the] Constitution and such,they would see that they have the authority to deal with us and to issue those licences ... sothe ownership is on them. They're holding our people back and they need to be held accountable."

According to the Fish Buyers' Licensing and Enforcement Regulations, under the N.S. Fisheries and Coastal Resources Act, it is prohibited for anyone in Nova Scotia to buy fish from "a person who does not hold a valid commercial fishing licence issued by Fisheries and Oceans Canada"or buyfish caught outside federal or provincialregulations relating to size, season and quota.

The court action, filed Feb. 1against the Attorney General of Nova Scotia,seeks declarationsfrom the province that the purchasing restrictions infringeontreaty rights without justification,and sodon't apply to seafoodbeing sold bySipe'knekatik members.

Sack said discussions with the federal government have "gone nowhere," and that some of the band's frustrationcame from a lack of action from the Nova Scotia government. He said he thinks addressingthe purchasing regulations would have been an easyway for the province to make progress on the matter.

"I'm not sure why they held out on it but...just hitting the delete button a couple of times would have changed a whole lot," Sacksaid.

"It goes back to the provincenot wanting to work with the Mi'kmaqat all. We tried on many different avenues and we didn't get anywhere."

The province is expected to respond in court to the suit by Feb. 15.

In a newsconference Wednesday, Premier Stephen McNeilsaid theprovince has a "different point of view" on its responsibilities in the matter.

"We've said all along that [a] buyer's licenceis related to a fishery that is described in the Fisheries Act laid out by the national government,"McNeil said.

"If Sipekne'katik wants to challenge that in court, we'll respond."

Return to court 'disheartening'

Mi'kmawlawyer James Michael, who is representing the band in the case, said the province hashad over two decades to amend their regulations in line with the Marshall decision.

"It's disheartening that we have to go to court to continue to enforce or protect our people and our rights in 2021," he said.

"What does that say about the whole court process and about the province respecting the rule of law?"

Michael said both levels of governmentshare jurisdiction with the Mi'kmaqwhen it comes toSipekne'katik's fishery, so either can act to avoid a costly court case.

"Once the lobster hits the shore,the federal jurisdiction sort of ends and the province'skicks in, butcertainly Canada has a tremendous amount of influence that they could come to bear on the province."

Sipekne'katik member and fishing advocate Cheryl Maloney, who called forthe province to let Nova Scotians buy Mi'kmaw lobster legally by selling it outside the legislature in October2020, said she's got mixed emotions about the lawsuit.

"It's a shame that it's come to this,but I'm quite proud of the direction the community has taken," she said.

"Our members have been consistent in fighting for our rights since the time the treaties were signed. So it's good news, but it's a shame."

Maloney said it's especially unfortunate now, during a pandemic, that the band will be spending money to go back to court and argue their rights with government.

"The government of the day should've done the right thing back in 1999 or 2000," she said.

"But for [the federal] government and the province of Nova Scotia to continue for 21 years, denying [the Marshall decision],finding excuses or passing that jurisdictional hot potato back and forth that's what the problem is in this country for Indigenous peoples."