In the past month, the Sipekne’katik First Nation and the Potlotek First Nation placed lobster traps in bays at the opposite ends of Nova Scotia. Each community had developed a management plan based on their treaty rights to earn a moderate livelihood.

The response to these actions by non-Indigenous fishers has led to national and international coverage of the ensuing violence, including damage to property and assault. Both non-Indigenous fishers and the Fisheries Department (DFO) have since seized some of the lobster traps.

The conflict has largely centred on whether the lobster stock is threatened by out-of-season fishing, and the definition of a “moderate” livelihood. However, this focus misses the root of the Mi’kmaw livelihood issue, namely the question of who has the authority to govern livelihood activities and how it is done.

Indigenous knowledge systems can improve fisheries

We’re part of a small group that has been examining these very issues since 2014, and includes scholars with expertise in ocean governance and marine policy and colleagues from the Assembly of First Nations. Our research project, Fish-WIKS, aims to understand how Indigenous and western knowledge systems can be used to improve the sustainability of Canadian fisheries.

The processes that feed into decision-making in fisheries in Canada have been primarily influenced by western science‐based knowledge systems that focus on a reductionist approach to understanding problems. In contrast, Indigenous ways of knowing are based on world views and values that are integrative and holistic, or as Elder Albert Marshall of Eskasoni First Nation once spelled out, “wholistic.”

Who would have guessed that our results from examining an alternative governance structure for the livelihood fishery in Nova Scotia through the lens of both knowledge systems, referred to as “two-eyed seeing,” would coincide with the current conflict playing out in the lobster fishery?

In two-eyed seeing, knowledge is viewed as a system that comprises what is known and how it is known. But a knowledge system, whether western or Indigenous, is composed of many things.

What we know, how we practise our knowledge, how we adapt to it and how we transmit and share knowledge are the more familiar elements. But the values and beliefs that underpin these elements, and which actually distinguish one knowledge system from another, are often ignored.

This is a problem because the values and beliefs underpinning one system are often at odds with those of another system, potentially creating a barrier to collaboration. However, the Fish-WIKS projects showed there are similarities that can bridge these knowledge systems and lead to greater understanding of the differences.

Governance gaps trouble Mi’kmaq rights

Our research identified a number of gaps in governance that have contributed to the lobster fishery situation we have today.

There is still no federal policy to address livelihood fisheries and the issue of livelihood as a treaty right is not mentioned in the Aboriginal Fisheries Strategy, the primary policy guiding the federal response to Indigenous fisheries

There are also conflicting views on who has the authority to manage fisheries, which stem from the perceived legitimacy of each governing system. Legitimacy influences whether a political action is perceived as right or just by those who are involved, interested and/or affected by it.

The two sets of rules for fisheries arise from the protection of Aboriginal and treaty rights in sections 25 and 35 of the Constitution, complicating the issue of legitimacy. This legal pluralism gives DFO the authority over non-Indigenous commercial fisheries while limiting its capacity to govern Indigenous fisheries.

In addition, Canada must justify any limits it places on the rights of Indigenous people engaged in fishing practices, as determined by the Supreme Court of Canada in R. vs. Sparrow in 1990. The court also affirmed Miʼkmaw treaty rights in R. vs. Simon in 1985 and R. vs. Marshall in 1999.

Our research confirms that Mi’kmaq are aware of challenges with the exercise of treaty rights and supports the necessity for Mi’kmaq to develop fishery and fishing rules that are legitimate in the eyes of Mi’kmaw fishers, non-Indigenous fishers and DFO. Some communities have developed such rules, incorporating knowledge from both western and Indigenous systems.

However, the question remains, does DFO have the justification to intervene with Mi’kmaw lobster livelihood fishing practices if, as Dalhousie University fisheries expert Megan Bailey pointed out, there is no scientific evidence that the current practice of the lobster livelihood fishery threatens the sustainability of the stock?

This needs to be cleared up. The Fisheries Act gives the DFO broad regulatory authority and this may extend to Indigenous fisheries. But the Marshall decision narrows that authority to apply only “where justification is shown.”

Moving forward

Canadians need to recognize that this current conflict playing out in Nova Scotia represents not only an operational nightmare for DFO but is a deep-seated governance issue. It requires developing a mechanism by which Mi’kmaq can legitimately contribute to the governance of fisheries as an integrated whole.

Short-term solutions will be identified, but a longer-term solution must address the legal pluralism that exists in Canada and facilitate the adoption of other forms of governance models in which DFO does not have exclusive authority.

The current focus on the lobster livelihood fishery and finding a dollar definition for “moderate” misses the fact that the underlying governance gap is the crux of the issue.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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The federal government’s anti-terrorism bill C-51 was the subject of heated parliamentary debate recently after revelations that the RCMP characterized pipeline opponents and First Nations as “violent anti-petroleum extremists” in a leaked internal intelligence report.

NDP environment critic Megan Leslie argued the leaked RCMP document, which labeled Canada’s environment movement as “a growing and violent threat to Canada’s security,” displays precisely how bill C-51 could be used to deploy anti-terrorism legislation against environmental activism deemed to be “unlawful.”

Because protests carried out without proper municipal permits can be deemed “unlawful” the proposed bill has serious implications for environmental and aboriginal groups, Leslie said.

“A lot hinges on that word ‘unlawful,’ ” she said during a recent question period in parliament.

“This is dangerous legislation, because if there is a wildcat strike or an occupy movement – an occupation of town property, such as the camps that we saw set up – that activity, under the eyes of CSIS or the current government, could potentially undermine the security of Canada without the right municipal permit, and it could all of a sudden be scooped up into this anti-terrorism legislation.”

“Every single word here matters,” Leslie said.

"Unlawful" Protest Potentially Deemed Terrorism in Bill C-51

In her argument, Leslie pointed to a recent analysis of the bill performed by Craig Forcese, national security expert and associate professor of law at the University of Ottawa.

In a recent piece Forcese agreed that even though the bill does not target democratic protest, there is room in the bill to pull participants of protest into the gambit of "security concerns."

“Under C-51,” he writes, ”the government will be able to share internally (and potentially externally) a lot more information about things that ‘undermine the security of Canada.’ That concept is defined extremely broadly – more broadly than any other national security concept in Canadian law. Yes, it can reach the subject matter of many democratic protest movements.”

Forcese also pointed to the fact that previous governments have avoided the dangers of limiting legitimate civil dissent to only "lawful" protest.

In fact, he writes, the very concerns raised in parliament now were on the table back in 2001 when the government first introduced a definition of “terrorist activity” in the original Antiterrorism Act.

The Act excluded “lawful” protest from the definition of terrorism but the term was eventually removed because of the undemocratic danger it posed to strikes and unpermitted protests.

“Given the experience in 2001 and the legal views expressed by the government of the day, we have to conclude that if the government continues to include the qualifier ‘lawful’ in its exceptions, it does so with its eyes wide open,” he writes.

Forcese warns that where protests deemed ‘unlawful’ overlap with other security concerns, such as critical infrastructure including pipelines, “democratic protest movements with tactics that do no square in every way with even municipal law may properly be the subject of CSIS investigation and possibly even disruption.”

He adds, “my point is this: when we craft national security law, we craft it to deter bad judgment. We do not craft it to be so sweeping and ambiguous that it must depend for its proper exercise in a democracy on perfect government judgment. Very few governments are perfect. And even if you think this one is, what about the next one?"

Anti-Terrorism Bill Targets More Than Just Terrorists

An editorial in the Globe and Mail also pointed to the danger of bill C-51, arguing the legislation does “much more than fight terrorism.”

The bill targets “activity that undermines the sovereignty, security or territorial integrity of Canada,” that includes “terrorism,” “interference with critical infrastructure” and “interference with the capability of the Government in relation to…the economic or financial stability of Canada.”

The authors of the editorial argue the new legislation creates another “class of security-underminer” that has implications for “environmental activists denounced as radicals.”

“If Bill C-51 passes, CSIS will be able to disrupt anything its political masters believe might be a threat,” they write.

Criminalizing Indigenous Dissent

NDP MP Niki Ashton said the bill is a clear attempt to “criminalize dissent.”

“As we know, indigenous peoples – First Nations, Métis, Inuit, or indigenous peoples in general – have often been at the forefront in fighting for what is important to them and, in many ways, what is important to all of us,” she said during question period.

“These activists, these leaders, these members of their communities are not terrorists and do not pose a danger to the lives of anyone.”

The problem with the legislation is clear, Ashton said, “it lumps legitimate dissent together with terrorism. Indigenous peoples have a right to seek environmental and social justice through protest, communication and activism. This bill would call that criminal. It would call that work terrorism.”

Ashton quoted Pam Palmater, a Mi’kmaq lawyer and activist with the Idle No More movement.

Palmater said Canadians and First Nations “as treaty and territorial allies” face a “threat to our collective future” with the breakdown in democracy and radical changes to Canada’s legislative landscape that have eliminated many of the nation’s environmental laws.

“Hundreds of thousands of people across Canada rose up against Bill C-45 – the large, unconstitutional omnibus bill pushed through Parliament without debate which threatened our lakes and rivers,” Palmater said.

“This time, the threat is personal – any one of us could go to jail for thinking or voicing our opinions. All of the rights, freedoms and liberties upon which Canadian democracy rests will be suspended with Bill C-51. This bill creates what has been described as Harper’s ‘Secret Police force’ with terrifying expanded powers.”

Ashton said she is “uncomfortable in principle and in practice with any one government body having this kind of unchecked control.” Ashton said under Bill C-51 CSIS will have the power to “surveil and target anyone they want.”

“Indigenous and environmental activists are afraid about what that could mean when they organize to protest a pipelines, when they communicate among themselves to reclaim territory that is theirs, and when they speak out in defence against the government in any way, which is their right to do.”

Indigenous rights and climate activist Clayton Thomas-Muller said the bill “is an abuse of democracy.”

“Our movements are about justice. To criminalize Indigenous dissent, then, is to repress Indigenous rights in Canada, and our responsibilities to protect the land.”

“We are transparent, open, base-driven movements that take a non-violent, peaceful direct action approach…The state is criminalizing Indigenous peoples who are acting within their right to exercise jurisdiction over their lands.”

“It is clearly about providing a right-of-way for the mining and energy sector,” he said.

Image Credit: Mark Klotz via Flickr

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The RCMP responded to a First Nation’s protest against shale gas fracking in New Brunswick with arrests and pepper spray this morning. Reports from the clash show images of a highly-militarized police response to the blockade along Route 134 near Rexton, N.B. in front of a compound belonging to SWN Resources, a Houston-based company that recently performed seismic testing, a precursor to fracking, in the area.

The Elsipogtog Mi’kmaq First Nation has been protesting the development of the region’s shale gas resources for months. In June, the RCMP responded to the lighting of a sacred fire with arrests. Today, a reported 75 officers responded to the peaceful blockade to enforce an injunction, sending 10 officers in military fatigues with sniper rifles. Watch a video of the morning's events on this feed.

Elsipogtog councilor Robert Levi reported that “dozens” of people have been targeted with pepper spray. “The chief was manhandled a little bit and all hell broke loose,” he said.

Chief Arren Sock, pictured below, was apparently in custody, but according to Postmedia News, RCMP Const. Julie Rogers-Marsh could not confirm if any arrests have been made. *Update: Postmedia News is reporting that at least 40 arrests have been made.

#Elsipogtog Chief & council getting arrested along with protesters #cdnpoli #IdleNoMore pic.twitter.com/NOOXyWbMrw

— Lionel Levi (@lionelwade1980) October 17, 2013

In this video below, numerous heavily armed officers appear on the scene and a woman behind the camera asks a man in fatigues not to point his gun at her mother.

It appears numerous police vehicles were set on fire, with twitter reports claiming up to 14 cars are burning.

Police cars on fire at NB blockade #Elsipogtog #FrackingProtest #mikmaqblockade #occupy #ows pic.twitter.com/WKVtKRJhK7

— Occupy The Earth (@djjohnthomas) October 17, 2013

Rexton protest #nb pic.twitter.com/zeTxxdeuzo

— Jen Hudson (@hudson_jen) October 17, 2013

The Halifax Media Co-op is reporting that one of their writers, Miles Howe, may have been arrested.

SNIPERS Pointed guns at camp with elders children & women first thing this am. #Elsipogtog #AntiFracking pic.twitter.com/1ThhuJlcbX

— Rhonda Doxtator (@kawisaha99) October 17, 2013

Tensions flare as the police line advances. Police tear gassing the crowd. pic.twitter.com/3WrjsdA2EA

— Ossie Michelin (@Osmich) October 17, 2013

Police car on fire as police lose control of anti #fracking blockade. pic.twitter.com/MTmkY5arSF

— Ossie Michelin (@Osmich) October 17, 2013

2 more RCMP cars on fire #mikmaqblockade pic.twitter.com/5N7IHUIRhf

— stimulator (@stimulator) October 17, 2013

#mikmaqblockade pic.twitter.com/3qQRcyRaYZ

— stimulator (@stimulator) October 17, 2013

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After several days of silent protest, prayer blockades and arrests, First Nations in New Brunswick are gathering support around the embers of a sacred fire. The fire, set to burn for four days near the junction of highways 126 and 116 west, is meant to symbolize a new boundary for fracking in the area, reports the Halifax Media Co-op.

Organized by the Mi’kmaq people in the New Brunswick community of Elsipogtog, the fire and gathering have impeded seismic trucks or “thumpers” believed to signal the beginning of shale gas fracking in the area. The region is currently under lease to SWN Resources.

Elsipogtog war chief John Levi told Miles Howe of the Halifax Media Co-op, “We’re not going to let them pass. This is the reason why we’ve set up.”

The peaceful gathering was recently broken up by a line of police officers, caputred in this video released today:

Twelve arrests took place early this morning during a sunrise ceremony.

David Alward, Premier of New Brunswick, has repeatedly promised that New Brunswick will have the strictest regulations in North America when it comes to shale gas exploration.

Yet Dr. Eilish Cleary, New Brunswick’s chief medical officer of health, told CBC news that the provincial government will not be implementing her principal recommendations for rules to protect human health.

Last Fall Dr. Cleary presented an 82 page report containing her recommendations for regulations to protect the health of New Brunswick’s citizens to the provincial government. While the provincial government has adopted some recommendations, such as the disclosure of the chemicals used in the fracturing process, the province has ignored a number of other recommendations.

Most strikingly, the province’s regulations exclude Dr. Cleary’s recommendation for project-by-project health-impact assessments as well as her recommendation for ongoing assessments of the adverse effects that the industry may cause. Not only has the province neglected to included these recommendations, it is possible that the public health office may not receive sufficient funding to carry out such research on its own.

Fracking has had a strange courtship with New Brunswick. New Brunswickers have been protesting for more than a year against the controversial method for extracting shale gas by blocking roads, gathering in front of the legislature building, organizing marches, and holding town hall meetings to discuss the dangers of fracking in the province.

Nevertheless, Premier Alward announced his plans to go ahead with fracking in his throne speech last November.

Opposition has not relented however, which may explain why the federal Minister for the Environment, Peter Kent, felt the need to come out in support of developing a shale gas industry in New Brunswick.

The Minister said that the economic benefits to the province would be “significant” even though seeing a “drill rig in one’s backyard is not the most pleasant of visions.” New Brunswickers, however, have been protesting over the threat posed to the health of their communities and environment and not the threat posed to pleasantness.

The province’s Conservative government is already failing to act on expert reports, showing how eager it is to get the industry up and running. The decision to develop shale gas was determined from the start, handed down from on high with federal support.

New Brunswick is a suffering province. After the closure of the Bathurst mine, unemployment in the north of the province has hit 20.2% and the province as a whole is operating with a $411 million deficit. Add to that an aging population and one can hardly blame the provincial government for being eager to find a way to turn things around. This is a province that has watched Newfoundland and Labrador transform itself into a ‘have’ province through its oil and gas industry.

The first draft of the fracking regulations stipulated that the company involved in a suit had the onus of proving that they did not damage private land. This was struck. The province has promised to compensate citizens in the event of an accident and pursue legal action against the company responsible. This was proposed to prevent scenarios where private citizens have to take on multi-million dollar companies.

At first glance it seems beneficial but Stephanie Merrill of the New Brunswick Conservation Council pointed out that this would in fact lead to a conflict of interest. Namely, it pits a provincial government desperate for economic development against the industry it is beholden to; an industry they have committed to develop in spite of opposition from the New Brunswick College of Family Physicians, environmental groups, and first nations leaders.

The new regulation may result in an elaborate pay off system that could allow the province to keep shale gas developers out of the lime light.

Thomas Homer-Dixon, the director of the Waterloo Institute for Complexity and Innovation at the University of Waterloo, criticized the province for making a permanent commitment to such an unpredictable resource. Shale gas may actually become scarce in the next 10-15 years, and the economic benefits would dissipate with it.

The residents of the town of Taymouth, near Fredericton, have organized a series of meetings to consider alternatives to the shale gas industry. Peter DeMarsh, who chairs the Taymouth Community Association, told CBC news: “Grasping at shale gas as the miracle that’s going to save us is beyond belief.”

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