HALIFAX — A Nova Scotia First Nation has filed a legal action against the province over a regulation that limits the band's ability to sell its lobster catch without a federal licence.

Lawyers for the Sipekne'katik First Nation said Wednesday the provincial rule is preventing purchases of the band's catch under a self-regulated fishery and is infringing on its treaty rights. 

The band says in the notice of action to the Nova Scotia Supreme Court, dated Feb. 1, that the 1999 Donald Marshall Jr. Supreme Court of Canada decision gives it the right to fish and trade in support of a moderate livelihood.

In that case, the Supreme Court justices upheld treaties from the 1760s they interpreted as meaning the Mi'kmaq can earn a moderate living from hunting and fishing. A subsequent clarification from the court stated the fishery could be regulated by Ottawa, if justified for conservation or other important public objectives.

Members of the band encountered violence from non-Indigenous residents after they opened their fishery in St. Mary's Bay last fall outside of the federally regulated season. Incidents included the destruction of a lobster pound and the burning of a band member's van.

In addition, the band has said the province's system for granting fish-buying licences resulted in potential buyers deciding against purchasing their catch.

The commercial purchase of lobster in the province is governed by the Fisheries and Coastal Resources Act, and in regulations set down in the Fish Buyers' Licensing and Enforcement Regulations.

The regulations make it illegal for anyone to buy, sell or possess fish or fish products that have been illegally harvested, or to buy fish or fish products from a person without a valid commercial licence granted by the federal Fisheries Department. 

"The effect of these regulatory prohibitions is that members of Sipekne'katik who participate in Sipekne'katik's moderate livelihood lobster fishery have no meaningful ability to sell the fish they catch," the band's notice of action says.

"These prohibitions don't accommodate the treaty right of Sipekne'katik and its members to fish and sell that fish."

The document notes that the provincial government isn't permitted to infringe treaty rights unless it can be justified for a "pressing and substantial public purpose," after consulting with the band.

Premier Stephen McNeil has argued that the federal government must first define a moderate livelihood fishery before the province can allow buyers to legally purchase lobster from the band.

A spokesman for the provincial Department of Fisheries and Aquaculture declined comment on the province's position, as the matter is now before the court.

The First Nation is asking the court to declare that the regulation violates its treaty rights, and that the rules don't apply to Sipekne'katik members who fish for a moderate livelihood. It is also seeking legal costs.

This report by The Canadian Press was first published Feb. 3, 2021.

Michael Tutton, The Canadian Press