N.S. court dismisses claim by fisheries group seeking ruling on lobster treaty rights

The Supreme Court of Nova Scotia is pictured. (Callum Smith/CTV News Atlantic)

The Nova Scotia Supreme Court has dismissed a motion from the Unified Fisheries Conservation Alliance (UFCA) seeking a ruling on Indigenous treaty rights to fish for lobster in St. Mary’s Bay, saying the group lacks standing for the claim.

Justice Ann E. Smith, who heard from the conservation alliance along with the defendants – Sipekne’katik First Nation and the Attorney General of Canada – last December, ruled that the claim was “fatally flawed.”

“The Court concludes that the UFCA lacks standing, private or public, to bring the Claim,” Smith’s written decision reads. “On that basis, the claim is struck. The Court lacks jurisdiction to hear it and the claim is clearly unsustainable.”

The conservation alliance, which launched its court action in August 2024, said it was seeking a declaration on if Sipekne’katik has treaty rights to commercially fish for lobster in St. Mary’s Bay.

They claim Sipekne’katik members engaged in “unauthorized” and “unlawful” lobster fishing in St. Mary’s Bay starting in 2010. They said the fishing has intensified, including from September to mid-December 2020.

“The UFCA claims that this aboriginal fishing is ‘unauthorized’ and ‘unlawful’ because the aboriginal fishers do not hold commercial fishing licenses and fish outside the mandated seasons for harvesting lobster, and Sipekne’katik has no treaty rights which permit this fishing activity,” the decision reads.

“The UFCA claims that this fishing activity of Sipekne’katik and its members has had a detrimental impact on commercial fishers, local communities and lobster stocks.

“The UFCA also claims that what it calls the unlawful and unregulated Sipekne’katik summer/fall commercial fishery has disrupted the licenced commercial lobster fishing industry in communities in, and around St. Mary’s Bay for many years and that this activity threatens the sustainability of lobster stocks in St. Mary’s Bay.”

The decision noted the conservation alliance’s claim centred on the idea that the Fisheries Act and Regulations do not infringe any of Sipekne’katik’s treaty rights.

“The effect of the Claim, if it is allowed to proceed, would be to put Sipekne’katik to the task of proving that it does have Aboriginal treaty rights to commercially fish for lobster in St. Mary’s Bay,” the decision reads.

“It is obvious that the UFCA is not a party claiming that legislation or its effect negatively impacts it or breaches its Charter rights, but rather that the Fisheries Act and Regulations are constitutionally valid.”

According to the decision, Sipekne’katik asserted a treaty right based on the Peace and Friendship Treaties of 1760-1761 to engage in commercial lobster fishing in St. Mary’s Bay.

“Sipekne’katik says that because of its treaty rights with Canada, its members do not have to obtain commercial fishing licenses and are not restricted in their fishing activities to a mandated lobster fishing season,” the decision reads.

Sipekne’katik and the Attorney General of Canada called for the court to strike the claim based on the conservation alliance’s lack of standing to bring it forward, which would mean the court has no jurisdiction to hear it.

Justice Smith noted it is up to Sipekne’katik to determine how and when it wishes to engage with Canada over its treaty rights to fish commercially in St. Mary’s Bay.

“Indeed, the Court was advised by counsel for Sipekne’katik and Canada, that those parties have engaged in discussions about those rights,” the decision reads. “The Supreme Court of Canada has clearly stated that because of the special relationship between the Crown and First Nations, the preferred approach to engaging with the issue of aboriginal and treaty rights is through negotiation, not adversarial litigation.

“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.”

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