Planet Money - Consider the lobstermen

Episode Date: December 4, 2021

A tense conflict between Indigenous fishermen and commercial lobstermen flared up in Nova Scotia in the fall of 2020. Today, how it all got started and how the Canadian government added fuel to the fire. | Subscribe to our weekly newsletter here.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Planet Money, from NPR. Just a quick language warning, today's show is about sailors who often swear like sailors. A few weeks ago, around 5.30 in the morning, I found myself steaming out into the Bay of Fundy, off the coast of Nova Scotia, under the watch of Captain Alexander MacDonald. Put your name under there. Sure. Print it and sign it. Is that your captain's log? That's my log, man.

I write everything down. I keep track of everything, anything going on out there. If you don't keep track of it, then you got no proof of it. Alexander's a big guy in his late 50s. He's got a wide grin and a graying ponytail tucked under his Cabela's baseball cap. And if Alexander sounds a little bit nervous, he has good reason. Because he explains these can be hostile waters. And he's an indigenous fisherman, a member of one of the bands of the Mi'kmaq First Nation. The supernaconic band of wild Indians. We're the most radical band on the East Coast.

There's no other band that fights for our rights as much as we do. And that fight, Alexander explains, has played out in these waters for decades, over the thing that's fueled the Atlantic economy since colonial times, a seemingly inexhaustible bounty of cod and scallops and what we're after today, lobster. So what are we hunting for? Buoys. Put our name on it. See the balloons? We spot one of Alexander's bright yellow buoys bobbing in the waves. The crew drags it aboard and hauls up the heavy anchor and the line of 15 lobster traps.

They then measure each lobster to see if they're up to regulatory snuff. They gently toss breeding females and undersized lobsters back into the water. What do we call those? Tinkers. Kind of cute. The rest get their claws rubber banded and are packed into crates. But almost immediately, it becomes clear there's something shellfishy going on. One of Alexander's buoys isn't where they dropped it a few days ago.

Alexander explains that they can sometimes be moved by extraordinarily high tides, or it can be a sign of something more nefarious, interference from other fishermen. It's like a little bit of lobster noir here. But after a few minutes crisscrossing the water, we spot another buoy that could be Alexander's. What's the name on this one? That's ours. That's the one that we couldn't find. Okay, we're going to haul this up. We begin the process of hauling up the traps, and the first one seems to come up all right.

But the second one appears to be missing entirely. And just as the third trap starts to crest from the water, something goes wrong. Oh! Brand new rope! Motherfucker! The rope has just snapped completely in half, whipping violently across the deck, as the rest of the line and whatever traps are still attached plunge back into the water. And this surprises everyone.

This should not be happening. And suddenly it's all hands on deck in search of the missing line. Amanda, can you help me look for that red buoy, please? Instead of doing bait, this is very important. Jesus, this is the head games we get right so it sounds like a lot of the signs point to foul play that's exactly what it is hey you know let's let's mess with the indian right rope don't snap like that that's brand new rope so somebody would have had to cut it at around a trap, plus the cost of rope and bait fish, Alexander and his crew have just lost thousands of dollars worth of gear. But that isn't the worst of it.

Over the last year, Mi'kmaq boats have been cut from their docks entirely, shot at with flares, vans have been set on fire, and whole lobster warehouses have been burnt to the ground. Hello and welcome to Planet Money. I'm Alexi Horowitz-Ghazi. The tensions between native and non-native lobstermen here in one of the most valuable lobster grounds in the world have been simmering like a pot over a medium flame for decades, with a seemingly simple question at its center. What is the right way to manage a fishery? It's a classic economic problem with existential stakes for an entire species of fish and for the communities that depend on them.

Today on the show, the War of the Lobsters, how a band of Mi'kmaq fishermen asserted their rights to fish, and what happened when the commercial fishermen struck back hard. The conflict that our captain Alexander MacDonald has been dealing with aboard his boat actually goes back decades to a landmark Supreme Court case in Canada. The red light is on. How do I see if the file is growing? Oh, I see. Jane Macmillan was at the center of the case. Well, her and her then-husband Donald Marshall Jr. She remembers meeting Donald in the fall of 1991 at a Halifax bar called The Misty Moon. It was a cabaret style bar and there was a Canadian artist, Jeff Healy, touring his album called Angel Eyes and I'll never forget it. We met just by chance. It was a fluke, and he bought me a rose and a drink, and that was it. Life changed at that moment. Donald died about a decade ago.

But Jane tells me not too long after that fateful night in Halifax, they moved up to northern Nova Scotia to try their hand at eel fishing together. Donald saw eel fishing as a way to reconnect with his Mi'kmaq roots and to make an honest living. We made a good team out on the water. He would drive the boat, or I would drive the boat, and he would set the nets, vice versa. And Donald had been looking for a fresh start because a few decades earlier, he'd been convicted of a murder he didn't commit. He spent 11 years in prison. And when he finally got out, a government commission dug into his case. They found it was based on shoddy police work and coerced witnesses. And his story became

this national symbol of racism in the justice system. He just really wanted to do something with his life instead of just, you know, being on the news or being that wrongfully convicted guy. Looking for, I think, some stability and structure in his life. And Jane says that after a couple years, they were starting to find their way as eel fishers, making it work as a livelihood. Until, tell me about the day kind of the trouble started. The first day was August 17th and it would have been in the midday. And the weather was warm, it's sunny, the water was super

sparkly. Yeah. And it was just really, really good fishing. These were thick, muscular eels, and they were tons of fun to fish. So we were having a ball. And, you know, JR was thrilled because we were finally going to maybe break even. But in the middle of this really good fishing, Donald and Jane were approached by a patrol boat from Canada's Department of Fisheries and Oceans, the DFO. The officers sidled up to their boat. And asked us what we were doing, and we said we were fishing eels, and they asked to see our license, and we didn't have one.

And Junior, you know, very much said, I don't need a license. I've got the Treaty of 1752. The Treaty of 1752 was one of several treaty agreements made between the British government and the Mi'kmaq in the 1700s. And that treaty recognized the Mi'kmaq's right to, quote, free liberty of hunting and fishing as usual. So none of the eel fishers in their community used licenses. Jane says she and Donald had never even considered getting a license for their small operation. The whole consciousness of treaty rights and treaty mobilization was really starting to take hold in Mi'kmaq lives. And people were talking more

openly about the treaties and were exercising their treaty rights more fully. But as far as the DFO officers were concerned, the Treaty of 1752 did not seem like justification for fishing out of season without a license. And they took one of Donald and Jane's nets as evidence before letting them go. I guess about a week later, we sold the eels. They were $1.70 a pound. We had 463 pounds. Unknown to us, we'd been under surveillance for the entirety of that week. Later that fall, Jane and Donald got a knock on their door.

It was the DFO. They were being charged for fishing without a license out of season, with an illegal net, and for illegally selling their catch. So we want to fight it, but how can we afford to go to court? How can we afford a lawyer? Those weren't options for us. But Donald Marshall Jr. wasn't just any unlicensed fisherman. After his wrongful conviction for murder,

he had become a national symbol of the Canadian government's mistreatment of its Indigenous citizens. And so, Jane says, when Donald attended a meeting of Mi'kmaq chiefs soon after their run-in with the DFO, he told the room that he'd been charged with phishing illegally. And they just sort of all turned, and then I think they all had the same spark of hope. A spark of hope because the Mi'kmaq immediately recognized what Donald's case could mean. Since the signing of what are called the Peace and Friendship Treaties in the mid-18th century, the British and Canadian governments had broken them over and over again. The Mi'kmaq, like First Nations across the continent, had been forced onto reservations, into notorious residential schools, and basically kept from using the natural resources that had

sustained them for thousands of years. But in the early 1980s, Canada passed a constitutional amendment, which basically said, we stand behind our treaties with the First Nations, and they are now at the level of constitutional law. And that meant Donald's case represented an opportunity. If the court sided with Donald, if they said he could fish and sell his catch, they would be saying all Mi'kmaq had a right to do the same thing under their treaty rights. It could mean a whole new economic future for the Mi'kmaq. They needed a case. And they said, look, Junior, if you're willing to take this on, we will support you and Jane in this, and we will pay for your defense.

How did Junior feel about becoming the test case with potentially, you know, national ramifications after what he'd been through? It was a very heavy burden. He worried and worried and worried about what would be the consequences of this case. Still, Jane says, Donald saw it as his duty to help. The government dropped the charges against Jane, who isn't Indigenous, early on. But finally, over five years after their eel-faded fishing trip, Donald Marshall Jr.'s case went before Canada's Supreme Court. Donald John Marshall Jr. and Her Majesty the Queen.

Chief Justice, my ladies, my lords. The Supreme Court case centered on a relatively narrow question. Did one of these particular treaties, the Treaty of 1760, recognize a right for the Mi'kmaq to fish and hunt for commercial purposes? So, harvesting things like eel or lobster to sell. Lawyers for Donald Marshall Jr. argued that the treaty did do that. Lawyers for the Crown said it did not. And then there was a third argument, not over the narrow question of what was in the treaty, but over the real-world impact the decision might have. And the idea behind this argument,

made by a lawyer representing the commercial fishing industry, William Marrera, would turn out to matter a lot, even years after the decision had been made. This case is not about history. This appeal is about the business of fishing, and it is about access for purely commercial purposes to a resource which is probably already over-exploited. For the commercial fishermen, the consequences of over-exploiting a fishery had become abundantly clear. Just a few years before this court case, the fishery for cod had collapsed dramatically after overfishing. Northern cod populations dropped to 1% of their estimated peak. And because cod had been the engine of the Atlantic economy, when the fishery collapsed,

the people that relied on it were devastated too. Tens of thousands lost their jobs, and basically whole communities became unemployed. So the Supreme Court had to weigh arguments about what the treaty actually promised, with arguments about what their decision would mean for fisheries and the people who relied on them. Jane says she and Donald didn't have high expectations after the oral argument. I think people somewhere deep in their hearts were anticipating another loss because it just seemed to be the way Indigenous people were being treated was always just so discriminatory, so racist. seemed to be the way Indigenous people were being treated. It was always just so discriminatory, so racist.

You know, there was just sort of that expectation of another disappointment. But when the decision finally came in the fall of 1999... Junior and I got on the phone immediately after, and he was elated. I was elated. We were both in tears. It was just, wow, we had been holding our breath for so long. The court had sided with Donald, which meant the Mi'kmaq people's right to fish trumped the existing rules protecting the fishery, the rules about seasons and licenses. There were some caveats for things like conservation and public safety, but the decision was hailed as a massive victory for the Mi'kmaq. Except there was one big catch. When it came to the question of how much individual Mi'kmaq members would be allowed to harvest, the court used a phrase that has continued to muddy the waters. Moderate livelihood. They wrote that the treaty

rights allowed the Mi'kmaq to sell only as much as would sustain a moderate livelihood, but they didn't define what they meant by moderate, or how much Mi'kmaq fishermen could actually catch. In the years since, this ambiguity kept raising the temperature on that simmering lobster pot until last fall, it finally boiled over. Until last fall, it finally boiled over. After the break, cut lines, confiscated boats, and flotillas of angry fishermen. In the decades since the Supreme Court decision affirming the Mi'kmaq's treaty rights to fish enough for a moderate livelihood, the government still hasn't defined what that means. Instead, they've spent a lot of money trying to incorporate Mi'kmaq fishers into the commercial system,

buying them licenses and equipment and even boats. But for many Mi'kmaq fishers, that wasn't the same thing as honoring their treaty rights. So, tired of waiting for the Canadian government, one band of the Mi'kmaq First Nation took a bold step. Which was keeping in character. Remember Captain Alexander, the guy who took me out on his boat? He called this band, his band, the most radical on the East Coast. And last fall, the Sibig me out on his boat, he called this band, his band, the most radical on the East Coast. And last fall, the Sibig and Agadig band announced, as a group, they were opening their own independent fishery, with seasons and licenses managed by their own tribal government. And in September 2020, they started fishing. Oh man, I was nervous, happy, proud, all kinds of mixed emotions.

This is Sibaganaganig fisherman Levi Paul. He explains the idea was to exercise their treaty rights exactly as Donald Marshall Jr. had done. Out in the open, not to get rich, just to make a living. Lobster fishing is everything. Without this, me and my family wouldn't eat. Like many of his fellow band members, Levi was anxious about how the Department of Fisheries and Oceans would respond to this new fishery of theirs. But he says at first, the DFO wasn't their biggest problem.

In the days after they took that bold step last fall to start fishing as a whole band outside of commercial seasons and without commercial licenses, they were confronted by commercial fishermen who began storming the docks in protest. They came in in a big squad all at once. One minute you look up, you see 10 trucks, and you look up the next minute, there's 100 trucks. Look back again, there's 500. You know, like, what the fuck? Holy fuck. Pretty soon, an enormous crowd of commercial fishermen had gathered on the wharf, screaming at them and demanding they stop the fishery. On another day, the commercial fishermen

were waiting for them out on the water. Dozens of commercial fishing boats, each several times the size of the small Mi'kmaq boats, were blocking the way out into the bay. Seeing all those big boats out there, and all these guys all hostile and ready to fight, and they almost rammed us. They were like two feet away from ramming us with the big boats. So it was scary that day. We reached out to the major fishermen's associations in the region,

but they wouldn't speak with us for this story. Several commercial fishermen did, however, speak to news outlets at the time, including Lex Bukowski. He explained to the Buffalo Times Tribune, when the commercial fishermen confronted the Sibaganagadig fishers last September, they were doing what the government should have been doing, protecting local lobster populations. This bay gets flooded with lobsters during the summer. They molt here and they breed, which means they're always hungry. And to catch a lobster during the summer months is pretty much effortless. So effortless, he says, that they are incredibly easy to overfish. Now, as a whole, the lobster

population in this area has actually been increasing for decades. But for commercial fishermen, the specter of the cod collapse is still haunting them. Fishing seasons exist in part to make sure that a collapse doesn't happen again. So when they see Mi'kmaq fishermen fishing out of season without licenses, to them it's poaching. People felt like if the government doesn't care, we care because we live here and this is our livelihood. The Sibaganagadig band say the way they were fishing couldn't possibly pose a conservation threat. The number of traps approved by the band last fall were equivalent to about two commercial fishing licenses. There are currently around a thousand commercial licenses operating

in that area, so the Mi'kmaq fishery would be a drop in the chum bucket. But the commercial fishermen were not convinced. And what followed was weeks of demonstrations and sometimes violent altercations, as large crowds of commercial fishermen descended on the wharves where Sibaganagadig fishers kept their boats. Some native fishermen were assaulted, one of their boats was set on fire at the dock, and a few weeks later, a group of commercial fishermen followed Mi'kmaq lobsterman Jason Marr to a warehouse he used to store his catch. They were there to reportedly take and release Jason's lobster. As the crowd grew to over a hundred people, they began throwing rocks

and demanding to be let in. Jason was trapped inside, and he started live streaming from his phone. I've got myself barricaded in lobster pound here. There's a couple of hundred non-natives out there. They've destroyed my van, and they said they won't let me leave unless they have my lobsters. Nothing the cops can do about it. The cops told me there's only six of us and 120 of them. We can't help. Police eventually escorted Jason and the other Mi'kmaq

fishermen to safety. The commercial fishermen then stormed the warehouse and took the lobster they found. And a few days later, the warehouse burnt to the ground in what the police called a suspicious fire. The violence that swept Nova Scotia last fall did eventually cool back to a simmer. And spokespeople for the commercial industry have made it clear they condemn all acts of violence in the fishery and that they lay the blame for the conflict on a lack of clear policies and enforcement by the Canadian government. The Department of Fisheries and Oceans say they are committed to implementing Mi'kmaq treaty rights, but in the meantime, they've taken a hard stand against anyone fishing outside of commercial seasons. They've been confiscating traps and boats,

and even punching holes in some of the lobsters caught in Mi'kmaq traps to make them unsellable. After a 14-hour day out on the water with Captain Alexander MacDonald, we finally get back to the docks. We never found those traps he lost or found out why that brand new rope snapped. He's not sure if it was commercial fishermen or fisheries agents or Mother Nature. What he is sure of is that it's time for the Canadian government to finally let the Mi'kmaq

exercise their full treaty rights. And to the commercial fishermen, he says, Leave us alone, man. You reaped all the benefits. Let us reap some of it. What's your moderate livelihood? That's the question. Why can't we have the same moderate livelihood? You made out like bandits. You live in a brick house that's worth $300,000, right? You drive a $100,000 truck. You're sustaining your kids. You're buying clothes for your children. Let us have that. We want that too. a $100,000 truck, you're sustaining your kids, you're buying clothes for your children, let us have that. We want that too. Alexander says, yes, the Mi'kmaq want to play a bigger role in the

seafood economy than they do now. But they don't need the Canadian government to regulate how they fish. Conservation has always guided their way of life. A couple weeks after my trip to Nova Scotia, Alexander texts me late one night. It's actually Thanksgiving. He told me that another lobster pound that Mi'kmaq fishermen use had just been burned to the ground. If you have thoughts, comments, story ideas, send us an email. We are planetmoneyatnpr.org. We are also on social media, Facebook, TikTok, Instagram, at Planet Money. Today's episode was produced by Emma Peasley and mastered by Isaac Rodriguez. It was edited by Jess Jang.

Planet Money supervising producer is Alex Goldmark. Louise Story and Ebony Reed are our senior consulting editors. Special thanks to Bruce Wildsmith, Nick Maloney, Doug Wenzel, Megan Bailey, Aaron McNeil, Shai Francis, Levi Francis, Chief Mike Sack, and Corinne McClellan. I'm Alexi Horowitz-Ghazi. This is NPR. Thanks for listening. And a special thanks to our funder, the Alfred P. Sloan Foundation, for helping to support this podcast.