Jamie Sarkonak: One law for First Nations, another for everyone else

There are two kinds of lobster trappers in St. Mary’s Bay, Nova Scotia: the non-Indigenous ones who have to abide by federal law, and the Indigenous ones who apparently don’t. The Liberal approach to governing the fishery has bred tension and violence between the two — and a recent Nova Scotia Supreme Court decision shows that we’re far from seeing it resolved.

The case had been brought by the Unified Fisheries Conservation Alliance, a group of commercial fishermen who banded together to ask the court to formally declare whether or not Indigenous lobster trappers were exempt from federal fishing rules in St. Mary’s Bay. On July 3, the court dismissed the action before it could even proceed to trial: the Unified Fisheries Conservation Alliance, ruled Justice Ann Smith, didn’t have standing to bring the case.

So, the question as to whether the rules actually apply to Indigenous people remains unanswered.

As it currently stands, the local Sipekne’katik First Nation’s “self-managed” fishery is practically exempt from federal fisheries rules. It was opened by the nation in 2020 after years of failed negotiations with the feds; instead of waiting to find a compromise, the Sipekne’katik took matters into their own hands, distributed their own licences and tags, and began harvesting out of season. Out-of-season fishing to support a “moderate livelihood” is permitted for the Nova Scotia Mi’kmaq, which includes the Sipekne’katik, through the Peace and Friendship Treaties of 1760 and 1761 — but the trouble lies with defining that word. The Sipekne’katik view it as a right of their people to fish commercially, while the more popular conception sees it as a right to personal harvest.

While the federal fisheries minister at the time, Bernadette Jordan, condemned the rogue move — “there cannot be a commercial fishery outside the commercial season” — the outlaw fishery was never shut down. If it were any other group doing the fishing, this would be called “poaching.”

Within a month of the illegal fishery’s launch, Sipekne’katik boats were already being vandalized; the chief leading the project complained of $1.5 million in losses and indicated that pressure by non-Indigenous buyers had limited his own community’s ability to sell its catch. The years that have followed have seen riots, intimidation, equipment sabotage, physical fights, and even arson of lobster pounds.

By 2023, local members of Parliament Chris d’Entremont (a Conservative at the time, now a Liberal) and Rick Perkins (a Conservative who lost his seat in 2025), wrote to Minister Jordan about their concerns over “the current situation in St. Mary’s Bay,” specifically, reports of “upwards of 50 boats pulling hundreds of thousands of pounds of lobster per day.”

The response by the Department of Fisheries and Oceans to such claims is usually some variation of “we’re enforcing the rules.” Indeed, its reply to the Conservative MPs referred to multiple arrests, releases, and trap seizures for fishing violations. It’s hard, however, to find instances where these enforcement actions end up in court, and beyond that, end with a conviction.

The on-record evidence shows that courts lean in favour of Sipekne’katik parties facing fishing charges: three members charged with illegally harvesting lobster in 2018 were acquitted in 2022; another pair caught transporting lobster from Sipekne’katik boats to a seafood buyer in 2022 were acquitted in 2024.

There was, at least, hope of a resolution. The Sipekne’katik sued the federal government back in 2021, with the hope that the court would declare the federal fishing rules an unconstitutional violation of the First Nation’s treaty rights. And the “other side” of the fishing community was going to be heard out: the Unified Fisheries Conservation Alliance was made an intervener to the case. But by 2025, the Sipekne’katik withdrew their claim against the government and the two descended into mediation — only for it to fizzle out and yield nothing, as usual.

The intervening Unified Fisheries Conservation Alliance was left hanging without getting the closure it had invested in. For that, the court made the Sipekne’katik pay $15,000 to the commercial fishers. In total, the Sipekne’katik claim to have spent nearly $600,000 on their now-abandoned lawsuit.

Perhaps the Unified Fisheries Conservation Alliance sensed from the start that the lawsuit would go nowhere, because in 2024, it initiated its own action against the feds asking for a declaration that federal fishing rules apply to the Sipekne’katik. It was another way of getting to the answer originally sought by the First Nation: can the Sipekne’katik run a commercial fishery under the auspices of “treaty rights”?

Well, Justice Smith has shut the door on getting to an answer by ruling that the Unified Fisheries Conservation Alliance doesn’t have standing to bring the action. The group isn’t directly affected enough to be a party, though they did put forth claims that they were being harmed by the current ambiguity surrounding the rules. “Unregulated localized overharvesting,” it says, is reducing legal catch and causing the value of commercial licenses to decline, to the point where some harvesters are leaving the area.

Smith further denied the group public interest standing which would have allowed it to continue its case as an advocacy group. This is the typical path that judges allow progressive advocacy groups to take in litigating issues like harm reduction and the gender-transitioning of children. Indeed, Smith was hostile to the idea of letting the matter proceed this way in court: “Requiring a First Nation to litigate its asserted treaty rights with Canada flies in the face of the objective of reconciliation between the Crown and Aboriginal peoples of Canada,” she wrote.

There are still paths forward: the commercial fishers could try a different approach, perhaps by suing Sipekne’katik fishers on more narrow grounds; or, better yet, the provincial government could submit a reference question to the courts, forcing an answer. Letting the matter go unresolved is an injustice in itself.

National Post