Annotations, Summaries And Critical Analysis
The New Lobster Wars
Inside the decades-long East Coast battle between fishers and the federal government over Mi’kmaw treaty rights
BY ZOE HEAPS TENNANT ART BY MARCUS GOSSE Updated 22:18, Nov. 25, 2020 | Published 15:59, Nov. 10, 2020
Living Off the Land Together: Lobsters (Jakej), 2020.
JUST BEFORE NOON on a warm Wednesday in August 2019, Marilynn-Leigh Francis slowed her boat down and looked out across the water. The buoy wasn’t there. She sat at the bow, held the wheel, and considered the currents. An army-green baseball cap shielded her eyes from the sun. It was almost high tide, and the strong pulls in the Bay of Fundy had likely made her lobster traps disappear, hiding them beneath the ocean’s surface. As she’d hoped.
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“See?” Francis called back to her friend. “Tide’s pulling our buoy down.”
“I was gonna say.” Tiffany Nickerson was perched on an empty trap at the stern of the small skiff. It was her second day out fishing with Francis.
The Mi’kmaq have fished these waters, along the coast of what is now Nova Scotia, for millennia and have called this place home for just as long. Francis, like Nickerson, is Mi’kmaw, and she was teaching her friend how to catch lobster.
From the boat, the port town of Yarmouth, Nova Scotia, appeared in miniature. Like it is to so many coastal communities in the Maritimes, lobster is part of the local DNA: along the town’s main strip, shops sell nautical kitsch—smiling cartoon lobsters drawn on cards, mugs that say “work like a captain, play like a pirate.” Tourists pass through the port and nearby coastal towns to eat at restaurants with names like Captain’s Cabin or The Crow’s Nest. Diners pick lobsters from tanks and don plastic bibs to catch the splatter when they crack open the shells.
Lobster is Canada’s most valuable seafood export. And the sea around southwestern Nova Scotia, or Kespukwitk, where Francis fishes, is one of the largest and most lucrative lobster-fishing areas in the country. (Kespukwitk is one of the seven districts that make up the vast Mi’kmaw territory of Mi’kma’ki.) Federal law requires all fishers to operate with a licence. But, like many Mi’kmaw fishers, Francis and Nickerson assert that they don’t need one. Which is why Nickerson has to learn about more than just how to set traps.
“I wonder if DFO got it,” Francis said to her friend as her boat rocked on the waves. Francis checked the location on a GPS device hanging from a cord around her neck.
It wouldn’t be the first time officers from Fisheries and Oceans Canada, commonly known as the Department of Fisheries and Oceans (DFO), had hauled Francis’s traps out of the water and locked them up in a fenced-off compound. Francis was fishing without a licence that day, as she always does. She was also fishing in August, three months before the start of the DFO-regulated season. After providing for her family and giving some of her catch to Elders in her community, Francis usually trades or sells the rest. To the DFO, that’s another affront: without a commercial licence, any sales or trades, however small, are considered illegal.
The DFO regulates fishing in oceans, lakes, and rivers in Canada, which includes determining—and enforcing—who can fish when, where, and how much they can catch. The department issues fishing licences and decrees, among other things, the start and end of lobster-fishing seasons. Officials schedule the seasons around factors such as when the crustaceans breed and moult and when their new shells have hardened enough to preserve the meat inside. In the waters where Francis drops her traps, the lobster season usually runs from the end of November until the end of May.
Fisheries officers police the waters and shorelines to try to catch fishers they accuse of fishing and selling lobster illegally. Many Mi’kmaw fishers, including Francis, assert that they have an inherent right to fish and make a livelihood outside Canadian regulations, a right that is enshrined in the treaties their nations negotiated with the Crown in the eighteenth century. In 1999, a Supreme Court decision, R. v. Marshall, confirmed Mi’kmaw people’s treaty rights to fish, hunt, and sell their harvests—but the federal government has yet to honour the ruling. Which is why, for the past two decades, the DFO and many Mi’kmaw fishers have been engaged in a seemingly endless loop of surveillance and countersurveillance operations. Despite having their traps and gear seized over and over, many Mi’kmaw fishers haven’t given up fishing on their own terms.
“No, I think the tide’s pulling it down,” Francis said. She had intended for her traps—or pots, as they’re often called—to be invisible to the officers who patrol these waters. And she wanted to drop some more before she and Nickerson called it a day.
Francis is from Acadia First Nation. She’s thirty-seven, about five foot six, and she often wears a ribbon skirt made from camouflage fabric (“because I’m always in battle”). She’s been fishing lobster since she was fourteen. According to Francis, the DFO’s official lobster season is “their season,” not hers.
“I’m gonna drop one right here,” Francis said to her friend. She tied a buoy to one of her traps.
Francis had labelled all her buoys with “Treaty 1752 Marilynn Francis,” written in black Jiffy marker. Nickerson watched as her friend pushed the trap over the side of the boat. The pot splashed as it hit the water. The treaty name, written on the white buoy, bobbed on the surface.
Fisheries officers have been known to go undercover, to slip out onto the water in the middle of the night to microchip lobsters in Mi’kmaw fishers’ pots in order to try to trace the shellfish. Less covert operations include seizing Mi’kmaw fishers’ traps, catch, boats, and even trucks. Sometimes it’s a handful of pots, like the twelve that Francis usually fishes. Other times, they seize hundreds of kilograms of lobster and drop them back into the sea.
Conflicts along the East Coast have been surging lately—and not just between Indigenous fishers and the government. Many non-Indigenous fishers have long accused Mi’kmaw fishers who operate outside the DFO’s regulations of poaching, fearing the toll on lobster stocks and, by extension, on their own catches and income. Like many Mi’kmaw fishers, they feel the federal government hasn’t done enough to address the Supreme Court ruling and bring clarity to treaty rights. With frustrations mounting over the past two decades, many Indigenous and non-Indigenous fishers and leaders have had enough. In a November 2019 article in the Chronicle Herald, a Nova Scotia paper, a non-Indigenous fisher described the rising tensions as “a loaded gun waiting to go off.”
D ONALD MARSHALL JR. and his spouse, Jane McMillan, took turns pulling up nets and emptying eels into a small outboard motorboat in Pomquet Harbour, Nova Scotia. It was a bright August morning in 1993. They’d heard the eels that year were big and running well. Kat (“eel” in the Mi’kmaw language) are loved by Elders, to whom Marshall would give the best ones. The kat might be hung and dried or gutted for katawapu’l (eel stew).
While they checked their nets, a boat with armed DFO officers pulled up alongside them and asked to see their fishing licences. (All fisheries officers are trained by the RCMP and equipped with firearms, batons, pepper spray, and body armour.) Marshall told them that he didn’t need a licence because he was Mi’kmaw, from Membertou First Nation, recounts McMillan in her book, Truth and Conviction.
Donald Marshall Jr., right, is greeted by lawyer Anne Derrick, left, in Halifax, Nova Scotia, in September 1999 (Andrew Vaughan/The Canadian Press)
“Everyone needs a licence to fish,” one of the officers said to him.
“I don’t need a licence,” said Marshall. “I have the 1752 treaty.”
The officers wrote down Marshall’s and McMillan’s names and took a net as evidence.
The Treaty of 1752 is one of several treaties that Mi’kmaq Nation chiefs negotiated and signed with the British between 1725 and 1779. These treaties, often referred to as the Peace and Friendship Treaties, are based on sharing the land and trading and also included other neighbouring Indigenous nations. The Indigenous signatories and their descendants were promised the freedom to hunt, fish, and trade in exchange for an assurance that they would not “molest His Majesty’s Subjects.” The Treaty of 1752, in particular, was on Marshall’s mind that day because he knew that James Simon, a Mi’kmaw man, had used it in court just eight years earlier to defend his right to hunt. In Simon v. The Queen, in 1985, the Supreme Court wrote: “The Treaty of 1752 continues to be in force and effect.”
A few days after Marshall and McMillan were questioned by the officers, they sold the 463 pounds of eels they’d caught, at the going rate of $1.70 a pound, for $787.10. They went back out to the harbour to reset their nets. When they returned two days later, their nets and boat were gone. Later that fall, there was a knock at Marshall and McMillan’s door. Two fisheries officers had come to notify them that they were being charged with violating federal fishery regulations on multiple fronts: for fishing and selling eels without a licence, for using illegal nets, and for doing so after the DFO had declared the fishing season closed.
Marshall was forty, soft-spoken, and slender. His mustache was light brown, like his hair. And, by 1993, his name had already been in the news for years. In 1971, Marshall was sentenced to life imprisonment for a murder he didn’t commit. It was the first high-profile wrongful murder conviction in Canada to be overturned. After eleven years in jail, Marshall was acquitted. A Royal Commission on Marshall’s prosecution found that “racism played a part”—the miscarriage of justice, wrote the commission, was “due, in part at least, to the fact that Donald Marshall, Jr. is a Native.” Across Canada, Marshall’s name became synonymous with a flawed justice system.
Marshall’s eel-fishing case moved from one court to another. “I got sick a couple of times,” said Marshall, according to historian Ken Coates, who wrote about the case in his book Marshall Decision and Native Rights. “I thought I’d never be in this court again.” The charges against McMillan, who is not Indigenous, were dropped early on. It was clear to the first judge who heard the case that the trial was about more than fishing charges: it was a test case for Mi’kmaw treaty rights.
The Mi’kmaq have been pushing back against hunting and fishing restrictions for as long as can be remembered. In 1927, Mi’kmaq grand chief Gabriel Sylliboy was arrested for hunting out of season. He is believed to be the first to use the 1752 Peace and Friendship Treaty in court to fight for the protection of his rights to hunt and fish. Sylliboy was convicted of the charges, but after the Treaty of 1752 was upheld in Simon v. The Queen in 1985, his conviction was nullified. He was pardoned posthumously in 2017, almost ninety years after his conviction.
Marshall’s trial was watched closely. Thirty-four Mi’kmaw and Wolastoqi First Nations in Nova Scotia, New Brunswick, Prince Edward Island, and Quebec would be directly affected by the case. A verdict in favour of Marshall, affirming his treaty right to catch and sell eel, could be interpreted more widely. It could assert the treaty right to harvest and sell other fish, as well as game, plants, and trees, outside the Canadian government’s regulations. Indigenous people across the country wondered what legal precedent the ruling might set for them. News clippings often quoted Marshall saying he wasn’t going through with the hearing for his own sake: “I was there for my people.”
The trial moved slowly. Marshall’s legal team shifted its focus from the Treaty of 1752 to the Peace and Friendship Treaties of 1760 and 1761. These treaties outlined the Mi’kmaw right to not just harvest but also earn a living by trading the catch. Marshall lost in provincial court and was rejected in the court of appeal. But, on a Friday in September 1999, six years after the DFO took Marshall’s nets and boat, the Supreme Court of Canada confirmed that Marshall had a treaty right to catch and sell fish. “Nothing less would uphold the honour and integrity of the Crown,” wrote justice William Ian Corneil Binnie.
But the language of the Marshall decision was opaque. The ruling stated: “The accused’s treaty rights are limited to securing ‘necessaries’ (which should be construed in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth.” Those two words, moderate livelihood, would get caught up in public debate, like a fishbone in the throat, for years to come.
Many wondered why, after so many non-Indigenous people had accumulated wealth from the resources in their territories, the Mi’kmaq were being confined to living “moderately.” The decision didn’t outline any parameters for what constituted a “moderate livelihood.” How would it be measured? More than twenty years later, these questions remain unanswered.
Many non-Indigenous fishers were livid about the ruling, fearing the potential effect on their fisheries. Tensions rose as Mi’kmaw fishers headed out to drop lobster traps without commercial licences, some for the first time. In one instance, around 600 non-Indigenous fishers were reported to have blockaded a harbour. The DFO was not prepared for the ruling or for the unrest it triggered.
“We knew instantly that [the ruling] was going to change our way of life,” recalls Sterling Belliveau, who served as the chairperson of the Lobster Advisory Board for southwestern Nova Scotia at the time. After working as a commercial lobster fisher for thirty-eight years, Belliveau is now retired and keeps busy mending lobster traps. Like many non-Indigenous fishers, he worried about how the ruling would affect his fishing community. He watched as hundreds of boats captained by non-Indigenous fishers went to Yarmouth to protest the ruling. Many demanded a rehearing.
In November 1999, two months after the Marshall decision was released, the court took an unusual step and issued a clarification, known as Marshall 2. In the clarification, the court stated that treaty rights were not unlimited. The government had the power to regulate the industry, but it had an obligation to consult with Indigenous nations if their treaty rights might be affected. The court wrote that treaty rights to catch fish can be limited “on conservation or other grounds.” It offered no clarification on the meaning of “moderate livelihood.” Conflicts on the water escalated.
The period following the Marshall decision is known unofficially as the Lobster Wars. Though the violence began to ease in the early 2000s, by many accounts, the wars never really ended.
Fisheries and RCMP officers, some dressed in riot gear, were reported to have used batons, tear gas, arrests, raids, and trap seizures to stop Mi’kmaw fishers from operating. Indigenous fishers told reporters at the time that DFO officers had pointed guns at them. The DFO denied these allegations. Some news reports described fisheries officers ramming Mi’kmaw fishing boats. Thousands of Mi’kmaw lobster traps were destroyed. Boats operated by Indigenous fishers were sunk. The RCMP laid some charges, against both non-Indigenous and Indigenous fishers.
Much of the violence was concentrated in Miramichi Bay, off the shore of Esgenoôpetitj (Burnt Church First Nation, New Brunswick). One widely circulated video, shot in Miramichi Bay, showed a large government vessel speeding up and running over a small Mi’kmaw fishing boat, forcing the fishers overboard, and then gunning for their vessel again. One Mi’kmaw fisher later described being pepper sprayed by officers while he was still in the water.
An independent consultant, hired by the Canadian government to file a report following the unrest in Miramichi Bay, wrote: “Some tens of millions of dollars were spent on enforcement in an atmosphere that was described to this consultant as resembling certain police state operations.” In 2000, the federal government, controlled by a Liberal majority, tried to quell the Lobster Wars by offering interim fishing deals to the thirty-four communities tied to the Marshall decision. These deals were not an implementation of the ruling: they didn’t address treaty rights. Instead, in exchange for commercial licences, federal funds, and training, bands had to assimilate into existing DFO regulations. The same regulations that Marshall had fought, and won, to be exempted from.
Many bands were concerned that signing the DFO’s deals would infringe on their newly affirmed treaty rights. But, as an extensive body of scholarship has shown, the legacy of colonization and discriminatory Canadian legislation had left many bands struggling with poverty. Mi’kmaw communities could not afford to build up the infrastructure needed to sustain capital-intensive lobster fisheries on their own. For bands trying to provide adequate housing, health services, education, and employment to their members, it was difficult to turn down the government’s offers. According to Jane McMillan’s book, Truth and Conviction, the negotiations fractured Mi’kmaw leadership. By 2007, all but two of the thirty-four communities had signed agreements.
The stress of the conflicts and the lengthy trials took a toll on Marshall’s health. Saddened by the backlash against Mi’kmaw treaty rights, he never ate another lobster. After years of suffering from a chronic respiratory disease, he died in 2009, ten years after the Supreme Court ruling, at the age of fifty-five.