In the early 1600s, the Mi’kmaq people introduced the first European settlers to a tasty ocean critter that looked like a huge bug. The lobster quickly became a delicacy. One early European governor nicknamed lobsters “the partridges of the seas because of their goodness.”
Some time later, in 1760 and 1761, the Mi’kmaq signed treaties with the British that recognized their right to fish and hunt in perpetuity. But, sometimes, forever isn’t really that long at all. Forty years ago, Ottawa created new fishing regulations that shut the Mi’kmaq and other First Nations out of the fishery that had fed them since ancient times. They were cut off from the heart of their culture.
On September 17, the Supreme Court of Canada overturned the past 40 years of government policy. In a ruling that acquitted Donald Marshall Jr., a Mi’kmaq, of illegally selling eels, the Supreme Court upheld the 1760 treaty. It said the Mi’kmaq do have the right to earn a “moderate livelihood” from fishing, hunting and gathering.
In New Brunswick, the 1,200 Mi’kmaq who live in the community of Esgenoopetitj (also known as Burnt Church) were overjoyed. Only the oldest residents could remember the last time the community could freely ply the nearby waters without harassment.
But their happiness was not long-lived. A fleet of non-Native lobster fishers descended on their village and set about destroying hundreds of lobster traps just put into the water. More than 100 non-Natives went to fish plants where Native-caught lobster was sold, ordered employees out and wrecked equipment. Several Natives were put in the hospital, and Native property was vandalized.
Some First Nations in the Maritimes decided to stave off more violence by agreeing to a moratorium on lobster fishing until an agreement is reached to calm everyone down. But 10 out of 35 affected First Nations rejected this idea, and are still in the water. Esgenoopetitj is one of them.
Alex Dedam, controller of the Esgenoopetitj band council, has been involved in the dispute since the beginning. We talked to him to find out what’s happening.
The Nation: Can you tell me some of the background of the dispute?
Alex Dedam: It’s always been our position that we don’t need anyone’s permission to fish for food for social, ceremonial or commercial purposes. In Burnt Church, for example, we have a number of court cases going through the system for what the Department of Fisheries and Oceans (DFO) considers illegal fishing. It’s always been a problem (for them) that our surplus fish has been put on the commercial market. DFO felt this was illegal activity, and they continue to charge people.
Our community was very happy when the Marshall decision came dewn because at long last they were able to now go and fish for commercial purposes without a license, using whatever traps or nets they required. Our community feels that the treaty of 1760 and 1761 is now recognized under Section 35 of the Constitution Act of Canada as an existing treaty.
That treaty wasn’t protected by the Constitution before?
No. The position of the government has always been that that treaty was (just an agreement on) peace and friendship. Certainly, we were very pleased when Donald Marshall was found not guilty. At that point, the Supreme Court of Canada said that’s a valid treaty, and the treaty provisions give us the authority to fish or hunt or gather or trap. We’re reading into it that it was all natural resources.
We’ve been trying to get into commercial fishing for some time, not only for lobster but other species. There have been modest attempts by DFO to throw a few things our way. But there hasn’t been any kind of big effort to let us into commercial fishing. The government wheels have been very slow in ensuring access to the natural resources.
For how many years were the Mi’kmaq fishermen prevented from having access to the fish?
This, I would suspect, is about for 40 years. Prior to that, there was a lot of fishing in this community. When the licensing regulations kicked in, somehow our people either didn’t want to buy into a licensing system, or they were pushed out knowingly, without our people knowing they were being pushed out. It dwindled to maybe a couple of fishermen who stayed on. Certainly, for the past 10 years now, this community has been trying to get into the commercial lobster area, and so now we have the opportunity to get there. That’s why Burnt Church doesn’t intend to follow a moratorium and intends to keep exercizing this treaty right.
Historically, has fishing been a very important part of the community life? Is it the equivalent of hunting for the inland First Nations?
Absolutely correct. Natural resources have always been an integral part of our life. People sold their natural resources for their livelihood. When they sold a lobster or a fish, they were able to feed and house their family, to offer the basic necessities of life. All that disappeared in the late ’50s and early ’60s because of the regulations of the government.
What effect did that have in the community?
The community became very dependent on the government for transfer payments. The community itself started to become very disruptive in terms of alcoholism. Leisure-time activities also led to drug abuse and family violence and a number of other things. Now that we are able to get back into commercial harvesting, we are hoping the economic situation of Burnt Church will change and people will be able to get some funds for them to improve not only themselves as individuals and families, but to benefit the community as well.
Did the language and cultural traditions suffer too?
Yes, they have. Everybody in this community is trying to keep the cultural traditions alive, but it’s very, very tough when more and more of our children are influenced by the greater society. With the mass-communications media, they are exposed more to the French and English languages. But there’s a resurgence of Mi’kmaq spirituality which is very encouraging and we hope it continues.
Some of the non-Native fishermen have been arguing there’s a limited supply of lobsters. What is your reaction to their argument?
The (non-Native) commercial fishermen have taken the position that the lobster and fish are theirs and theirs alone. We’re basically saying we have been left out of this regime for a long time and we now have an opportunity to go into the water. We are just as concerned as anybody else with the conservation of the species, and the (fishing) effort that was under way here – at least to the biologists – was not considered threatening to the species. As a matter of fact, the number of traps here was miniscule when you compare them to the total number of traps. During the regular commercial season, there are probably half a million traps in the water. The highest number of traps in the water here was about 3,500. That does not have a significant impact on the fishing.
Were you surprised at the reaction of the non-Native communities toward the decision?
Absolutely. I heard some people say they wanted the case reheard. It’s absurd. Marshall has gone to the Supreme Court of Canada, and the Supreme Court has said the treaty is valid and we have the right to fish for commercial purposes. To rehear it again is absurd. The highest court in the land has ruled. It’s time the non-aboriginal people realize this is a valid treaty and we have to implement the treaty. They’re asking for a stay. A stay, I think, would be ludicrous. They’re saying we should all be equal – we should have the same laws for everybody. I mean we’ve been below the totem pole for such a long time, and now that we’re just beginning to see beyond our noses, all of a sudden these people want everything to be equal.
It’s only recently that we’ve been allowed to vote in the elections, for example. It’s only recently that we’ve been allowed to have some participation in the greater society. We still have the highest incidences of unemployment. We don’t have anyone in our community who’s employed in the big employment machines in our region. We have high incidences of alcoholism, suicide, diabetes, you name it. We’re certainly not going to be equal for some time. This is not a level playing field. Some of this stuff that’s happening is going to help us, but we’re not there yet.
Do you think the Marshall decision has any impacts outside of that area, for other First Nations?
I think it has an impact right across the country. We’re basically saying we have a treaty right, and we’re asking the government to ensure that treaty right is protected and to meet with provincial governments to make sure they protect the natural resources so we’re going to be able to exercize our treaty rights when we are ready to do so in the very near future.
Do you think the federal and provincial governments have handled this issue properly?
Absolutely not. I was so disappointed with the DFO when the decision came down. They didn’t really develop a scenario or action plan if the decision went against them. To be caught like this without some kind of a plan to ensure an orderly transition, to me, it’s just stupid that they just sat back and did nothing. The government of New Brunswick feels the Marshall decision does not impact on the cutting from the Crown land. It certainly does. We have demonstrations currently going on in the neighbouring reserve of Big Cove on that, and we have court cases going up through the system right now on that. I think what we are doing here is going to impact right across the country.
