Some commercial lobster fishers say Indigenous treaty fishing threatens stocks. Government memo says otherwise

Wearing a sharp three-piece black suit and his hair neatly coiffed, Matthew Cope looks nothing like a laid-back lobster fisherman at the helm of Mystique Lady as he climbs the stairs into the courthouse in Dartmouth, N.S.

Cope would rather be out on the water, where the weight of his legal battle dissipates for a while. 

But that’s what landed him in court in the first place. He takes a deep breath and reminds himself whom he’s fighting for. 

“I want my children to be able to exercise their rights,” he said. “I want them to be able to work hard and fish and be able to make a living out of it.”

Cope, who is Mi’kmaw, is facing federal charges for doing what Canada’s highest court said he has every right to do: fish for a “moderate livelihood.”

But Cope’s fight extends beyond the courtroom. He and other First Nations fishers who sell their catch without government authorization face allegations from some in the commercial industry that they're fuelling crime and threatening lobster stocks.

The fifth estate investigated the legitimacy of these allegations and found federal government research does not support the accusation that lobster is at risk due to what it considers to be "illegal" trade. The investigation included an analysis of dozens of court records and interviews with lobster industry insiders, including an illicit player, in southwestern Nova Scotia.

Uncontested by authorities, these narratives have led to deepening divisions between the primarily Acadian coastal communities and the most prominent First Nation group in the region, both on land and water.

On a cloudless August afternoon, Cope steers his vessel toward St. Mary’s Bay, the crown jewel of Nova Scotia’s lobster fishery.

A radio chatters quietly in the background and a beaded dreamcatcher sways in the wheelhouse. It’s a stark contrast to when, five years ago, he found federal fisheries officers hauling up his lobster traps.

“I let them know that I was fishing under a treaty,” Cope said, adding that each of his buoys had his name, status card and phone number attached. “They said that they were going to take my traps anyway.”

Cope sees the fisheries charges levied against him for fishing outside the government-regulated season as unconstitutional and is prepared to take that argument to the Supreme Court of Canada, where, 26 years earlier, another Mi’kmaw man fought similar offences and won.

That case, R. vs. Marshall, led to Canada’s highest court recognizing that Mi’kmaq had treaty rights to hunt and fish for a “moderate livelihood.” 

But a quarter century on, how those rights work in practice remains hotly debated. Cope’s only legal avenue to legally sell his lobster is opting into the federal government’s complex system of licences, which mandates all commercial fishing must take place during regulated seasons.