Background

After Mi'kmaq chiefs declared a state of emergency in October 2020,^[50] the Federal Government appointed Allister Surette as Federal Special Representative to investigate.^[51]

In the March 2021 report's backgrounder, Surette cited Macdonald-Laurier Institute's Ken Coates who said that Mik'maq communities had benefitted from improvements resulting from the Marshall decision, as the Department of Fisheries and Oceans Canada (DFO) granted access to Mi'kmaq fishers to the "commercial fishery through communal licences operated by the bands". Macdonald-Laurier Institute's Ken Coates said that the commercial fishing industry had not suffered because of this.^[51][52] Others disagreed, saying that Canada had never fully implemented the Marshall Decision, and that, over the decades, various levels of government and authorities mishandled and neglected local concerns related to the implementation of the Marshall decision.^[50]

In September 2020, the Sipekne'katik First Nation developed a fishing plan based on their right to fish in pursuit of a moderate livelihood.^[51] They issued seven lobster licenses to band members; each license has 50 tags, representing a combined total of 350 tags. One commercial lobster license represents 350 tags.^[53] The lobster fishery they initiated was located "outside of the regulated commercial season in Lobster Fishing Area 34^[51]in St. Marys Bay, Nova Scotia—the Kespukwitk (also spelled Gespogoitnag) district of Mi'kma'ki.

The inshore fishery is the last small-scale fishery in Nova Scotia. St. Marys Bay is part of Lobster Fishing Area (LFA) 34, making it the "largest lobster fishing area in Canada with more than 900 licensed commercial fishermen harvesting from the southern tip of Nova Scotia up to Digby in the Bay of Fundy."^[54] It is also "one of the most lucrative fishing areas in Canada".^[53] DFO reported that as of December 2019, there were 979 commercial lobster licenses in LFA 34.^[53]

The Sipekneꞌkatik fishing plan "became a flash point" resulting in violent highly-charged conflict pitting non-Miꞌkmaw lobster fishers in the adjacent coastal communities and Miꞌkmaw fishers those carrying out the moderate livelihood fishery.^[51]

Violence

On September 11, Sipekne'katik First Nation Chief Michael Sack sent a letter to Premier Stephen McNeil, DFO Minister Bernadette Jordan and Nova Scotia RCMP Commanding Officer Lee Bergerman, calling for them "to uphold the rule of law amid ongoing violence, threats, human rights discrimination and ongoing failure to uphold the 1999 Supreme Court of Canada decision in R. v. Marshall, recognizing the Mi'kmaq right to fish and trade." By that point, vehicles and property belonging to members of the Sipekne'katik First Nation had already been damaged and stolen, including boats being burned. There were already planned protests by non-Indigenous fishers to block the Mi'kmaq fishers' access to several wharves.^[55] One such protest took place on September 15 at Saulnierville and Weymouth wharves.^[56]

On September 17, Sipekne'katik launched a "moderate livelihood fishery" with a ceremony at the Saulnierville wharf, the first lobster fishery regulated by Miꞌkmaq in Nova Scotia. On September 18, the Assembly of Nova Scotia Miꞌkmaw Chiefs declared a province-wide state of emergency in response to threats by commercial and non-indigenous fishers, including some that had cut the Miꞌkmaw lobster traps.^[50] On September 25, the Sipekne'katik fishery released its proposed regulations allowing the legal sale of seafood harvested under the fishery to Indigenous and non-Indigenous consumers and wholesalers. However, at the time of the announcement, Nova Scotia's Fisheries and Coastal Resources Act prohibited anyone in Nova Scotia from purchasing fish from "a person who does not hold a valid commercial fishing license issued by Fisheries and Oceans Canada," which would include the fishery.^[45]

On October 1, Potlotek First Nation and Eskasoni First Nation^[57] launched their own moderate livelihood fishery in a celebration at Battery Provincial Park that coincided with Mi'kmaq Treaty Day. The management plan behind this fishery had been in development for three months, prompted by the seizure of lobster traps by DFO officials. Community licenses issued through this fishery will entitle fishers to 70 tags, and boats will be allowed to carry up to 200 lobster traps each. At the time of the launch of the Potlotek fishery, Membertou was also planning on launching their own fishery, following a similar plan.^[46] After the launch of this fishery, DFO officers continued to seize Mi'kmaq traps.^[57]

Harassment around the Sipekne'katik fishery continued through October. On October 5, Sipekne'katik fisher Robert Syliboy, a holder of one of the moderate livelihood fishery's licenses, found his boat at the Comeauville wharf destroyed in a suspicious fire.^[58] On the evening of October 13, several hundred non-Indigenous fishers and their supporters raided two storage facilities in New Edinburgh and Middle West Pubnico that were being used by Miꞌkmaw fishers to store lobsters. During the raids, a van was set aflame, another vehicle was defaced and damaged, lobsters being stored in the facilities were destroyed, and the New Edinburgh facility was damaged, while a Miꞌkmaw fisher was forced to barricade himself inside the facility in Middle West Pubnico. Indigenous leaders called the raids racist hate crimes and called on the RCMP to intervene, citing their slow response on the evening and lack of arrests even a day after the police claimed they "witnessed criminal activity". Social media posts from the commercial fishers and their supporters claimed that the lobsters taken in the raids were removed as they represented "bad fishing practices" on the part of the Miꞌkmaq, but Sipekne'katik Chief Mike Sack and a worker at the Middle West Pubnico facility claimed the lobsters that were stored there were caught by the commercial fishers, not Miꞌkmaw. Assembly of First Nations national chief Perry Bellegarde, federal Fisheries minister Bernadette Jordan, and Colin Sproul, president of the Bay of Fundy Inshore Fishermen's Association, all condemned the violence. Nova Scotia Premier Stephen McNeil maintained his position that this issue must be solved federally when asked about it at a press conference.^[59] Several months later, in January 2021, the manager of the Middle West Pubnico facility, James Muise, made a public post in a Facebook group for commercial fishers, claiming that he gave the people involved in the raids permission to enter the facility and take the lobsters. Muise offered to work with people charged with offenses connected to the raids and try to get those charges dropped.^[60]

Chief Mike Sack was sucker punched while trying to give a press conference on October 14.^[61] Also during the violence, an elder had sage knocked out of her hand while smudging, and a woman was grabbed by the neck.^[62]

On October 15, the Miꞌkmaq Warrior Peacekeepers arrived at the Saulnierville wharf with the intention of providing protection to Miꞌkmaq who were continuing to fish amid the violence.^[62]

On Friday, October 16, Prime Minister Justin Trudeau said that his government was "extremely active" in trying to de-escalate the situation. He also stated that he expected the police to be keeping people safe, and acknowledged concerns that the police had not been doing so.^[62]

Three days after the initial raids on the storage facilities, on the evening of October 16, the Middle West Pubnico facility was destroyed in a large fire, deemed "suspicious" by the RCMP. One man was taken to hospital with life-threatening injuries after the fire, but the RCMP did not provide details regarding the man's association to the lobster pound, other than that he was not an employee.^[61] The destruction led to further calls from Chief Sack for increased police presence, as well as an appeal from the Maritime Fisherman's Union for the federal government to appoint an independent mediator.^[63][61]

On October 16, Mi'kmaq lobster fishers from the Sipekne'katik First Nation quickly sold all their lobsters after setting up shop in front of the Province House in Halifax with potential customers lined up around the block.^[64] The fishers said they were putting pressure on Premier McNeil to act.^[64]

On October 17, Nova Scotia Premier Stephen McNeil, released a Twitter statement requesting that the federal government define "what constitutes legal harvesting in a "moderate livelihood" fishery.^[11]

On October 21, Sipekne'katik managed to secure an interim injunction against the restriction of band members' access to the Saulnierville and Weymouth wharves, as well as the New Edinburgh lobster pound. The motion for the injunction was filed ex parte due to the urgency of the situation, as the band was struggling to sell any of their catch in the midst of the violence and protests. The injunction will remain in place until December 15, 2020.^[65]

In January 2021, 23 people were charged in connection to the violence at the lobster storage facilities on October 13, 2020: 15 for break-and-enter and 8 for break-and-enter and mischief.^[60] Their court date is set for March 29, 2021.^[66]

Intimidation over the fishery dispute has continued into 2021. In mid-January, lobster harvester and Sipekne'katik citizen Jolene Marr, whose brother was surrounded in the West Pubnico lobster pound on October 13, was sent a seven second-long close-up video of a man's face that included what "sounds like a racial slur and six gunshots in the background."^[66]

Legal action

On March 26, 2021, 43 Mi'kmaq lobster fishers from the Sipekne'katik First Nation filed a statement of claim against the attorney general of Canada, the RCMP, the DFO, and 29 non-Indigenous fishers including the Bay of Fundy Inshore Fishermen's Association (BFIFA). The claim alleges that the non-Indigenous fishers named as defendants took the law into their own hands and engaged in violence against the moderate livelihood fishery, that they were encouraged to do so by BFIFA, and that the DFO and RCMP contributed to the harm by not intervening in the foreseeable violence.^[67]

Talks with DFO

On October 23, 2020 the Mi'kmaq Rights Initiative (known as the KMKNO for "Kwilmu'kw Maw-klusuaqn Negotiation Office") announced that talks with the DFO over defining "moderate livelihood" had broken down. The following Wednesday (October 28), Terry Paul, chief of Membertou First Nation, stepped down from his position with KMKNO and the Assembly of Nova Scotia Mi'kmaq Chiefs, saying "[his] confidence in the operations of the organization [sic] have weakened over time," citing issues of transparency, and preferring to pursue treaty rights negotiations outside of the Assembly.^[57] Membertou's withdrawal follows Sipekne'katik's own withdrawal earlier in the month on October 6, leaving the Assembly as a representative of 10 of the 13 Mi'kmaq First Nation bands (Millbrook having also withdrawn earlier). According to Paul, when he talked with the other ANSMC Chiefs about his decision, there seemed to be a willingness to deal with the issues he had identified in the negotiation process, so that he could rejoin shortly.^[68]

Fisheries Minister Bernadette Jordan sent a letter to Chief Mike Sack on March 3, 2021, outlining the terms under which a moderate livelihood fishery could be negotiated, and what the federal government would be "prepared" to allow; the letter proposed balancing "additional First Nations access through already available licences" and stated that "these fisheries will operate within established seasons." These terms were rejected by Chief Sack, who stated that "we have a management plan that is better for conservation than theirs is, so we're going to follow our own plan."^[69]

Colonial wars

In the wake of King Philip's War between English colonists and Native Americans in southern New England (which included the first military conflict between the Miꞌkmaq and New England), the Miꞌkmaq became members of the Wapnáki (Wabanaki Confederacy), an alliance with four other Algonquian-language nations: the Abenaki, Penobscot, Passamaquoddy, and Maliseet.^[86] The Wabanaki Confederacy was allied with the Acadian people.

Over a period of seventy-five years, during six wars in Miꞌkmaꞌki, the Miꞌkmaq and Acadians fought to keep the British from taking over the region (See the four French and Indian Wars as well as Father Rale's War and Father Le Loutre's War). France lost military control of Acadia in 1710 and political claim (apart from Cape Breton) by the 1713 Treaty of Utrecht with England.

But the Miꞌkmaq were not included in the treaty, and never conceded any land to the British. In 1715, the Miꞌkmaq were told that the British now claimed their ancient territory by the Treaty of Utrecht. They formally complained to the French commander at Louisbourg about the French king transferring the sovereignty of their nation when he did not possess it. They were informed that the French had claimed legal possession of their country for a century, on account of laws decreed by kings in Europe, that no land could be legally owned by any non-Christian, and that such land was therefore freely available to any Christian prince who claimed it. Miꞌkmaw historian Daniel Paul observes that, "If this warped law were ever to be accorded recognition by modern legalists they would have to take into consideration that, after Grand Chief Membertou and his family converted to Christianity in 1610, the land of the Miꞌkmaq had become exempt from being seized because the people were Christians. However, it's hard to imagine that a modern government would fall back and try to use such uncivilized garbage as justification for non-recognition of aboriginal title."^{[26]: 74–75}

Along with Acadians, the Miꞌkmaq used military force to resist the founding of British (Protestant) settlements by making numerous raids on Halifax, Dartmouth, Lawrencetown, and Lunenburg. During the French and Indian War, the North American front of the Seven Years' War between France and Britain in Europe, the Miꞌkmaq assisted the Acadians in resisting the British during the Expulsion. The military resistance was reduced significantly with the French defeat at the Siege of Louisbourg (1758) in Cape Breton. In 1763, Great Britain formalized its colonial possession of all of Miꞌkmaki in the Treaty of Paris.

Covenant Chain of Peace and Friendship Treaties

Miꞌkmaw Encampment by Hibbert Newton Binney, c.1791

Between 1725 and 1779, the Mi'kmaq, Wolastoqey (Maliseet), and Peskotomuhkati (Passamaquoddy) signed numerous treaties, commonly referred to as the Covenant Chain of Peace and Friendship Treaties, through which they entered into a "peaceful relationship with the British Crown." The Mi'kmaq assert that through these treaties—which were referenced as legal precedent by the Supreme Court of Canada in R v Marshall—the Mi'kmaq "did not cede or give up their land title and other rights."^[10]

Some historians have asserted that first treaty signed in 1725, after Father Rale's War, did not cede hunting, fishing, and gathering rights.^[87] The Halifax Treaties (1760–61), marked the end of warfare between the Miꞌkmaq and the British.^[88]

The 1752 Peace and Friendship Treaty Between His Majesty the King and Jean-Baptiste Cope,^[17] on behalf of the Shubenacadie Miꞌkmaq has been cited in the Supreme Court of Canada's 1985 decision in R. v. Simon.^[17] In his 2002, book on the Marshall case, historian William Wicken said that there is no written documentation to support this assertion that Cope made the treaty on behalf of all the Miꞌkmaq.^{[89] : 184} has been cited in the Supreme Court of Canada's 1985 decision in R. v. Simon.^[17] With the signing of various treaties, the 75 years of regular warfare ended in 1761 with the Halifax Treaties.^[90][91]

Although the treaties of 1760-61 contain statements of Miꞌkmaw submission to the British crown, later statements made by Miꞌkmaw reveal that they intended a friendly and reciprocal relationship, according to the 2009 book, Nova Scotia: a pocket history, by Saint Mary's University history professor, John G. Reid and Brenda Conroy.^[92]: 23 In the early 1760s, there were approximately 300 Miꞌkmaw fighters in the region and thousands of British soldiers. The goals of the Miꞌkmaw treaty negotiators engaged in the 1760 Halifax treaty negotiations, were to make peace, establish secure and well-regulated trade in commodities such as furs, and begin an ongoing friendship with the British crown. In return, the Mi'kmaq offered friendship and tolerance of limited British settlement, although without any formal land surrender, according to Reid and Connor.^[92]: 23 To fulfill the reciprocity intended by the Miꞌkmaq, that any additional British settlement of land would have to be negotiated, and accompanied by giving presents to the Miꞌkmaq. The documents summarizing the peace agreements failed to establish specific territorial limits on the expansion of British settlements, but assured the Miꞌkmaq of access to the natural resources that had long sustained them along the regions' coasts and in the woods.^[92] Their conceptions of land use were quite different. In his 2003 book about the British expulsion of the Acadians, University of Cincinnati history professor, Geoffrey Plank, described the relationship between the Mi'kmaq and Acadians as strong. The Miꞌkmaq believed they could share their traditional lands with both the British and the Acadians—with the Mi'kmaq hunting as usual, and getting to the coast for seafood.^[93]: 163

The arrival of the New England Planters and United Empire Loyalists in greater number put pressure on land use and the treaties. This migration into the region created significant economic, environmental and cultural pressures on the Miꞌkmaq. The Miꞌkmaq tried to enforce the treaties through threat of force. At the beginning of the American Revolution, many Miꞌkmaw and Maliseet tribes supported the Americans against the British. They participated in the Maugerville Rebellion and the Battle of Fort Cumberland in 1776. Miꞌkmaw delegates concluded the first international treaty, the Treaty of Watertown, with the United States soon after it declared its independence in July 1776. These delegates did not officially represent the Miꞌkmaw government, although many individual Miꞌkmaq did privately join the Continental Army as a result. In June 1779, Miꞌkmaq in the Miramichi valley of New Brunswick attacked and plundered some of the British in the area. The following month, British Captain Augustus Harvey, in command of HMS Viper, arrived and battled with the Miꞌkmaq. One Miꞌkmaw was killed and 16 were taken prisoner to Quebec. The prisoners were eventually taken to Halifax. They were released on 28 July 1779 after signing the Oath of Allegiance to the British Crown.^[94][95][96]

As their military power waned in the beginning of the 19th century, the Miꞌkmaw people made explicit appeals to the British to honor the treaties and reminded them of their duty to give "presents" to the Miꞌkmaq in order to occupy Miꞌkmaꞌki. In response, the British offered charity or, the word most often used by government officials, "relief". The British said the Miꞌkmaq must give up their way of life and begin to settle on farms. Also, they were told they had to send their children to British schools for education.^[97]

Monument to the Treaty of 1752, Shubenacadie First Nation, Nova Scotia

Gabriel Sylliboy was the first Miꞌkmaw elected as grand chief in 1919 and the first to fight for treaty recognition—specifically, the Treaty of 1752—in the Supreme Court of Nova Scotia.

In 1986, the first Treaty Day was celebrated by Nova Scotians on October 1, 1986 in recognition of the treaties signed between the British Empire and the Miꞌkmaw people.

The treaties were only formally recognized by the Supreme Court of Canada once they were enshrined in Section 35 of the Constitution Act of 1982. The first Treaty Day occurred the year after the Supreme Court upheld the Peace Treaty of 1752 signed by Jean-Baptiste Cope and Governor Peregrine Hopson.

Royal Acadian School

Walter Bromley was a British officer and reformer who established the Royal Acadian School and supported the Miꞌkmaq over the thirteen years he lived in Halifax (1813–1825).^[98] Bromley devoted himself to the service of the Miꞌkmaw people.^[99] The Miꞌkmaq were among the poor of Halifax and in the rural communities. According to historian Judith Finguard, his contribution to give public exposure to the plight of the Miꞌkmaq "particularly contributes to his historical significance". Finguard writes:

Bromley's attitudes towards the Indians were singularly enlightened for his day. ... Bromley totally dismissed the idea that native people were naturally inferior and set out to encourage their material improvement through settlement and agriculture, their talents through education, and their pride through his own study of their languages.^[98]

Mi'kmaq Missionary Society

Silas Tertius Rand in 1849 help found the Mi'kmaq Missionary Society, a full-time Miꞌkmaw mission. Basing his work in Hantsport, Nova Scotia, where he lived from 1853 until his death in 1889, he travelled widely among Miꞌkmaw communities, spreading the Christian faith, learning the language, and recording examples of the Miꞌkmaw oral tradition. Rand produced scriptural translations in Miꞌkmaq and Maliseet, compiled a Miꞌkmaq dictionary and collected numerous legends, and through his published work, was the first to introduce the stories of Glooscap to the wider world. The mission was dissolved in 1870. After a long period of disagreement with the Baptist church, he eventually returned to the church in 1885.

Mi'kmaq hockey sticks

Miꞌkmaq making hockey sticks from hornbeam trees (Ostrya virginiana) in Nova Scotia c. 1890.

The Miꞌkmaq practice of playing ice hockey appeared in recorded colonial histories from as early as the 18th century. Since the nineteenth century, the Miꞌkmaq were credited with inventing the ice hockey stick.^[100]: 60 The oldest known hockey stick was made between 1852 and 1856. Recently, it was sold for US$2.2 million. The stick was carved by Miꞌkmaq from Nova Scotia, who made it from hornbeam, also known as ironwood.^[101]

In 1863, the Starr Manufacturing Company in Dartmouth, Nova Scotia, began to sell the Mic-Mac hockey sticks nationally and internationally.^[100]: 61 Hockey became a popular sport in Canada in the 1890s.^[100]: 58 Throughout the first decade of the 20th century, the Mic-Mac hockey stick was the best-selling hockey stick in Canada. By 1903, apart from farming, the principal occupation of the Miꞌkmaq on reserves throughout Nova Scotia, and particularly on the Shubenacadie, Indian Brook, and Millbrook Reserves, was producing the Mic-Mac hockey stick.^[100]: 61 The department of Indian Affairs for Nova Scotia noted in 1927 that the Miꞌkmaq remained the "experts" at making hockey sticks.^[100]: 73 The Miꞌkmaq continued to make hockey sticks until the 1930s, when the product was industrialized.^[100]: 63

Gallery of 19th century images

• 
  Grand Chief Jacques-Pierre Peminuit Paul (3rd from left with beard) meets Governor General of Canada, Marquess of Lorne, Red Chamber, Province House, Halifax, Nova Scotia, 1879.^[102]
• 
  Miꞌkmaq encampment, Sydney, Cape Breton Island
• 
  Miꞌkmaq People (1873)
• 
  Miꞌkmaq people (1865)

World Wars

In 1914, over 150 Miꞌkmaw men signed up during World War I. During the First World War, thirty-four out of sixty-four male Miꞌkmaq from Lennox Island First Nation, Prince Edward Island enlisted in the armed forces, distinguishing themselves particularly in the Battle of Amiens.^[105] In 1939, over 250 Miꞌkmaq volunteered in World War II. (In 1950, over 60 Miꞌkmaq enlisted to serve in the Korean War.)

Miꞌkmaq of Newfoundland

When Newfoundland joined Canada in confederation in 1949, political leader (later Premier) Joey Smallwood declared that there were "no Indians in Newfoundland."^[106] This ultimately led to the Miꞌkmaq people of Newfoundland not receiving indian status or recognition as First Nations that other indigenous groups in Canada did in the years following.^[106][107]

In 1972 activists formed the Native Association of Newfoundland and Labrador as the main organization representing the Mi'kmaq, Innu, and Inuit peoples of Newfoundland and Labrador.^[108] After the Labrador Innu and Inuit left the Association in 1975, the organization was renamed as the Federation of Newfoundland Indians. The FNI included six Mi'kmaq bands (Elmastogoeg First Nations, Corner Brook Indian Band, Flat Bay Indian Band, Gander Bay Indian Band, Glenwood Mi'kmaq First Nation, and the Port au Port Indian Band). The provincial government supported the FNI.^[109]

The federal government approved only the petition for recognition made by the Mi'kmaq at Conne River. In 1987, the Miawpukek Mi'kmaq First Nation was recognized under the Indian Act, and their community of Conne River was classified as reserved land for the Mi'kmaq.^[110]

Recognition for the remainder of Newfoundland's Mi'kmaq was a much longer process. Minister David Crombie was willing to work with the FNI and the government of Newfoundland, but the provincial government considered it to be a federal matter.^[109]

In 2003, Minister Andy Scott was presented with a report recommending a First Nations band without any reserved land to represent the Mi'kmaq of Newfoundland. An Agreement-in-principle was reached in 2006, which the FNI accepted in 2007. The federal government ratified it in 2008.^[111]

In 2011, the Government of Canada announced recognition by an order-in-council to a group in Newfoundland and Labrador called the Qalipu First Nation. The new band, which is landless, had accepted 25,000 applications to become part of the band by October 2012.^[112] In total over 100,000 applications were sent in to join the Qalipu, equivalent of one-fifth of the province's population. In response, parliament passed Bill C-25, authorizing it to review all applications and retroactively reject some, based on criteria similar to those used in the R v Powley case that defined rights for the Métis people.^{[113][114][115][116]} Several Miꞌkmaw institutions, including the Grand Council, had argued that the Qalipu Miꞌkmaq Band did not have legitimate aboriginal heritage and was accepting too many members.^{[117][118][119]}

In 2017, only 18,044 people were eligible for Band membership.^[116][120] In 2018, the Qalipu First Nation announced that the updated Founding Members List for the Band had been adopted by way of an Order in Council which came into effect on June 25, 2018. The 2018 Band list included 18,575 members.^[121] In November 2019, after concerns about legitimacy had been addressed, the Qalipu First Nation was accepted by the Miꞌkmaq Grand Council as being part of the Miꞌkmaq Nation. Qalipu Chief Mitchell stated, "Our inclusion into the AFN, APC and acknowledgement by the Miꞌkmaq Grand Council are important to us; it is part of our reconciliation as Miꞌkmaq people. Friendships are being formed, and relationships are being established. It is a good time for the Qalipu First Nation."^[122] By 2021, nearly 24,000 people were recognized as founding members, in 67 Newfoundland communities and abroad.^[123]

The Friends of Qalipu Advocacy Association is currently taking Qalipu First Nation (and its precursor) to court over the enrolment process.^[124]