Commercial fishing group to call on courts to define moderate livelihood

An organization that represents commercial fishermen says it's steaming ahead with a lawsuit aiming to define the terms of a moderate livelihood fishery now that a Nova Scotia-based First Nation has dropped its own lawsuit against the federal government.

"It is critically important for all participants in the fishery to understand what the moderate livelihood right is and what its scope is and just as important to understand what it isn't," Colin Sproul, president of the United Fisheries Conservation Alliance, said in an interview.

"We really need that clarity for everyone."

Sproul was responding after his organization learned late Friday that lawyers for Sipekne'katik First Nation filed a notice of discontinuance in a lawsuit the band launched against the Attorney General of Canada in 2021. The Chronicle Herald first reported the development.

Sipekne'katik wanted the courts to rule that the federal Fisheries Act infringed on its right to fish for a moderate livelihood. That would include the group's ability to fish for lobster outside the commercial season and catch and hold lobster without a licence.

Sipekne'katik Chief Michelle Glasgow, who had been scheduled to appear in court on Monday as part of discovery for that lawsuit, did not respond to requests for comment.

A summer fishery the First Nation started in St. Mary's Bay five years ago has been a flashpoint, with representatives from Sproul's organization and some other commercial groups expressing concern that a full-scale commercial operation has been happening outside of the regulated commercial season and that Fisheries and Oceans Canada has not done enough to prevent it.

First Nations fishers have countered that fisheries officers have unlawfully seized traps and interfered with their treaty right to fish.

Concerns aside, some First Nations fishers have exercised their food, social and ceremonial rights in the area. Fish caught as part of the FSC fishery, which is not regulated by any kind of season, cannot be sold or traded and is a constitutionally recognized practice.

Michel Samson, a lawyer for the United Fisheries Conservation Alliance, said his interpretation of the notice of discontinuance is that officials with Sipekne'katik determined "there was no way that the courts were going to recognize what was being claimed."

With that lawsuit coming to an end, the alliance is now free to pursue its own. The group had intervener status in the matter between Sipekne'katik and the federal government, which had been previously delayed while the two parties worked toward a resolution outside the court process.

"The United Fisheries Conservation Alliance has gone from being in the back of the bus to now behind the driver's wheel in having the courts make a determination on what are the limits around a moderate livelihood fishery for First Nation communities in Nova Scotia," Samson said in an interview.

Calls for a definition of what constitutes a moderate livelihood date back to a 1999 Supreme Court of Canada ruling known as the Marshall decision, which said that First Nations have a treaty right to earn a moderate livelihood.

And while a subsequent clarification, known as Marshall II, said the government can regulate a resource in certain circumstances, it has been up to Ottawa, in consultation with First Nations, to establish what constitutes a moderate livelihood. That has not happened.