A lobster fishing group in Nova Scotia has failed in its bid to persuade a judge that a First Nation does not have the treaty right to commercially fish for lobster out of season and without a licence.
In a decision released Wednesday, Nova Scotia Supreme Court Justice Ann Smith says the Unified Fisheries Conservation Alliance could not proceed with its claim against the Sipekne’katik First Nation because the court lacked jurisdiction.
“(The alliance’s) claim is fatally flawed, unsustainable and must be struck,” Smith’s ruling says.
Neither a spokesman for the alliance nor the First Nation could be reached for comment Thursday.
Established in November 2020, the alliance represents thousands of independent, multi-species commercial fishermen and fishery associations from across the Maritimes.
In court, the non-profit group argued that the First Nation has engaged in unlawful commercial lobster fishing in St. Mary’s Bay since 2010 by ignoring federal rules, which they say has had a detrimental impact on lobster stocks.
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Sipekne’katik has long argued that it has a treaty right to commercially fish for lobster without federal permits based on the Peace and Friendship Treaties of 1760-61.
In September 2020, the Sipekne’katik band formally launched a self-regulated lobster fishery, citing a 21-year-old Supreme Court of Canada decision that affirms the Mi’kmaq right to hunt and fish to earn a “moderate livelihood.”
In her decision, Smith concluded the alliance’s claim had no standing because it did not challenge any government action or law.
In court, the alliance said it wanted the judge to declare the federal Fisheries Act and Regulations as constitutionally valid to drive home the point that Sipekne’katik should follow the rules. But Smith said that approach did not raise any serious issues for the court to decide.
“(The alliance) is not attempting to challenge the validity of any legislation or the legality of state action,” Smith’s ruling says. “It has not raised a justiciable issue.”
On another front, Smith said the court could not make a ruling about a treaty that makes no reference to the plaintiff.
“The (alliance) is not a party to any treaty between Sipekne’katik and Canada,” Smith wrote. “It does not have private interest standing to seek a declaration that any such treaty rights are constitutional.”
As well, Smith’s decision says the Supreme Court of Canada has made it clear that issues dealing with treaty rights must be dealt with through negotiations between First Nations and the federal government, not adversarial litigation.
The decision points to the “special relationship” between the Crown and First Nations when it comes to Aboriginal and treaty rights.
“It is for Sipekne’katik to determine how and when, if at all, it wishes to engage with Canada over its asserted treaty right to engage in a commercial fishery in St. Mary’s Bay,” Smith’s ruling says, adding that those negotiations are ongoing.
Smith cited a Supreme Court of Canada decision from 2024 stating that the litigation process is often at odds with reconciliation.
“Avoiding expensive, lengthy and adversarial litigation is an important step for reaching reconciliation-oriented results where Aboriginal and treaty rights are at issue,” the 2024 decision says.
Still, the judge noted the alliance’s argument that negotiations between Ottawa and Indigenous groups pushing for a moderate livelihood fishery had “become too protracted or unfruitful.”
When the alliance filed its lawsuit in August 2024, it issued a statement saying that after the Supreme Court of Canada confirmed the concept of a moderate livelihood fishery, it failed to adequately define the limits of that fishery.
“This has created confusion between the federal departments of Fisheries and Oceans and the Public Prosecution Service as to what laws to enforce,” the statement said. “It is imperative that our courts provide the rules and clarity required for both the commercial fishery and for First Nation communities.”
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