Lobster Wars Rock Maritimes

Department of fisheries and oceans officers were waiting as the crew of My Best Yet, an 11-m lobster boat, climbed onto the wharf in Yarmouth, N.S., one afternoon last week. Within minutes, the situation turned ugly. The authorities left the full-blooded Mi'kmaq who owned the boat alone. But when a burley DFO officer put handcuffs on Jamie Muise, charging the slim 27-year-old Métis with catching lobster out of season, a crowd of friends and family shouted insults and threatened the officer with personal retribution. Shaking a big fist, another crew member - a non-native - warned a DFO officer he would attack anyone who tried to handcuff him. Eventually, he went quietly. Moments later, James Muise, Jamie's father, pocketed an arrest notice ordering him to join the other two in court on Oct. 26 - and vowed to be back on the water, fishing, the following day. "This is harassment - a show to try to quiet them down," he yelled, gesturing at a group of non-native fishermen who stood watching the small drama from the Yarmouth waterfront. "You watch - there'll be blood shed before the whole thing is done."

In fishing communities throughout Atlantic Canada last week, confusion, anger and fear reigned in the wake of a Sept. 17 SUPREME COURT of Canada ruling that gave natives year-round fishing rights. And the only real question in the deepening feud seemed to be: would it become more than a war of words? Hundreds of angry non-native fishermen gave the department of fisheries and oceans an ultimatum: start hauling up, by Oct. 4, the thousands of traps set by natives since the Supreme Court decision - or they would do it themselves. That threat spurred federal Fisheries Minister Herb Dhaliwal to seek a peaceful way out of the impasse by asking natives and non-natives to sit down and negotiate a short-term settlement before working out a new fisheries framework. In the meantime, fisheries department officers were ordered to try to cool tensions by cracking down on any one other than status Mi'kmaqs found lobster fishing. By week's end, the crew members of My Best Yet were the only arrests.

Even Donald MARSHALL Jr., the man whose court victory triggered the standoff, jumped into the fray, trying to convince Mi'kmaq fishermen to pull up their pots and stay off the water until the dispute was resolved. "We've waited this long," he said on a radio talk show. "I think we could wait a little longer." After meeting in Fredericton, Mi'kmaq chiefs told their tribal members to keep fishing anyway. But Lawrence Paul, chairman of the Assembly of Nova Scotia Mi'kmaq Chiefs, told Maclean's TV that natives are "flexible and willing to sit down and negotiate some sort of interim agreement," leading to a long-term agreement. One short-term option, according to Paul: a 30-day moratorium in the lobster fishery.

The Marshall case had its beginnings in 1993 when the Mi'kmaq man, already a household name for spending 11 years in prison after being wrongfully convicted of murder, was charged with three federal fishery offences after he and a friend caught and sold 210 kg of eels. His lawyers argued that a treaty signed between the Mi'kmaq and King George II in 1760 gave him the right to catch and sell fish without government intervention. The Nova Scotia provincial court, and later the provincial Court of Appeal, ruled against him. But in a judgment issued on Sept. 17, the Supreme Court overturned his conviction. In a 5 to 2 ruling, the court found that Mi'kmaq, as well as members of the Maliseet First Nation and the Passamaquody First Nation, both of New Brunswick, have the right to hunt, fish and gather year-round and without licences. The decision restricted them in just one way: they could only earn a "moderate livelihood" from the activities, for the purpose of "day-to-day" needs.

Other controversies involving aboriginal rights also continue to simmer in the region. Later this month, the Nova Scotia Supreme Court will begin hearing native arguments that the provincial government needed to consult them before granting the developers of the Sable Island natural gas project the right to run a pipeline through provincial Crown lands. And the issue of native logging on Crown lands remains contentious, not only in New Brunswick but also in Nova Scotia. In a case currently before the Federal Court of Canada, involving 35 Mi'kmaq woodsmen on trial for illegally cutting timber on Crown lands, the defence contends that natives have control over Nova Scotia's lands, as well as the waters in and around the province. To buttress this argument, they are using a legal principle known as "aboriginal title" - in effect saying that even though the Mi'kmaq were dispossessed by British settlers in the 1700s, they never surrendered their original rights to the lands and waters. "If the court finds in our favour, we could make a claim for royalties in all resource sectors," stresses Mi'kmaq negotiator Bernd Christmas, a lawyer. "It could also cast into doubt land grants made by the government to third-party interests like homeowners and businesses."

For now, the lobster fishery remains the main battleground. In a normal year, fishermen working the lobster-rich areas between Nova Scotia and New Brunswick - where the industry is worth as much as $40 million annually - can expect to take home more than $60,000 a year from just four months on the water. "You don't have to be a genius to make a good living doing this," admits Cameron Davis, 44, a Yarmouth lobster fisherman. The approximately 3,000 people who hold licences in the Bay of Fundy region zealously guard their lucrative, close-knit industry, but Mi'kmaq leaders contend fewer than 100 band members are now involved in the lobster fishery. Non-native fishermen, though, say the figure is far higher. They also claim that non-natives are trying to pass themselves off as aboriginals to get access to the fishery - and that everyone on the water is greedily pulling in whatever they can catch without thought of conserving stocks. "It's a free-for-all out there," says Donald Cunningham, president of the West Nova Fisherman's Coalition, which represents about 250 fishermen in the Yarmouth area.

The roots of the tension between natives and non-natives working the lobster grounds go back to 1990, and a Supreme Court of Canada decision that guaranteed West Coast aboriginals the right to fish year-round for "ceremonial and sustenance" purposes. From that ruling sprang the DFO's Aboriginal Fishing Strategy, which decreed that natives in Nova Scotia involved in the so-called food fishery were allowed to set six lobster traps year-round, compared with as many as 400 for commercial fishermen during their roughly five-month season. But almost from the start, Nova Scotia's non-native lobstermen, who are legally limited to a November-June harvesting season, complained that Indian fishermen have been overfishing.

Occasionally, the bad blood boiled over between the two sides and lobster boats were burned and gear damaged. Now, in the aftermath of the Marshall decision, the threat of violence again hangs in the air in places like Yarmouth and Baie-Sainte-Anne where native fishing is said to be greatest. At week's end, native groups, happy that the federal minister seemed to have confirmed their right to fish year-round, reaffirmed their willingness to negotiate. Many non-native fishermen, who hoped for more from Dhaliwal, were asking him to consider tougher measures. But some continued to talk about pulling up native traps - or perhaps putting their own boats in the water nearly two months before their season begins. "There is so much anger," says John Bartlett, 28, a Mi'kmaq who has been fishing intermittently for lobster since the native food fishery began in 1990. And, so far, no real solution in sight.

See also NATIVE PEOPLE.

Maclean's October 11, 1999