Canada responds to United Nations after Mi'kmaw treaty fishery complaint

Canada submitted its response last month to a United Nations committee after Sipekne'katik First Nation in Nova Scotia asked the international body to investigate violence against Mi'kmaw fishers during the "moderate livelihood" lobster fishery in the fall of 2020. 

However, the federal Heritage Department, which is the lead agency handling the human rights reporting file, said Canada's submission will remain confidential. 

Last year representatives from Sipekne'katik submitted information to the UN's committee on the elimination of racial discrimination following the October 2020 burning of a lobster pound in Middle West Pubnico, N.S., where Mi'kmaw fishermen were storing their catch. 

The United Nations committee then asked Canada to respond to allegations it was not properly investigating alleged acts of racism against Mi'kmaw fishermen.

"We are hoping for accountability," said Pam Palmater, a Mi'kmaw lawyer and professor who is a member of Eel River Bar First Nation in New Brunswick. Palmater was one of the co-authors of the submission to the United Nations committee.

"We don't think in any way that this is going to magically make Canada start respecting our rights, but it's one more tool, it's one more area of accountability," she said.

Sipekne'katik's fall 2020 lobster fishery in southwest Nova Scotia was conducted outside of the federally mandate commercial season in the area.

The band argued it could do so under a 1999 Supreme Court of Canada ruling that confirmed the Mi'kmaq had a treaty right to earn a "moderate livelihood" from fisheries. The court, however, did not define the term and later said the federal government had the right to regulate the fishery for conservation and other purposes.

The Sipekne'katik fishery triggered widespread and sometimes violent protests in the fall of 2020 from commercial fishermen angry that it took place when the commercial season was closed.

Palmater said using the UN process is a way to put pressure on Canada on the world stage. This comes at the same time as a Senate committee is studying the issue of the moderate livelihood fishery. 

The United Nations committee set a deadline of July 14, 2021, for Canada to respond, however the Heritage Department confirmed Canada submitted its response on March 14, 2022.

"The government takes the allegations of acts of racist violence against Mi'kmaw people in Nova Scotia seriously and prepared a response for the Committee's request for information," a department spokesperson wrote in an email to CBC.

The department did not share details about the content of the response. 

In a briefing note obtained under access-to-information laws, the Heritage Department noted many bodies worked on the response, including Fisheries and Oceans Canada, the RCMP, Crown-Indigenous Relations and Northern Affairs Canada, the federal Department of Justice, Global Affairs Canada and the government of Nova Scotia. 

The UN committee procedure is "long and slow," according to John Packer, a professor of law and director of the Human Rights Research and Education Centre at the University of Ottawa.

"They take their time," Packer said of the UN committee. "These are not full-time bodies, they're part time, they meet only occasionally through the course of the year, so even their so-called 'urgent' procedures are very slow.

"We're talking years." 

Since Sipekne'katik filed its initial application with the UN committee, four Mi'kmaw communities in Nova Scotia announced government-approved moderate livelihood fisheries, including the Acadia, Annapolis Valley, Bear River and Potlotek First Nations.