Burned out fishing boats, thousands of pounds of dumped, dead lobsters and allegations of a booming black market for the popular crustacean have drawn federal investigators to Nova Scotia's most lucrative fishing grounds in the lead-up to lobster season.

Tensions have been running high in recent weeks along the small wharves in the communities that dot St. Mary's Bay, a well-known breeding ground for lobsters during the summer. While conservation laws prevent lobster fishers from harvesting the shellfish during breeding season in order to safeguard stocks, stunned locals watched thousands of pounds of lobsters that appeared to be commercial loads pass over their docks though the summer months.

To fish commercially, all fishers must have a federal licence which enables them to harvest and sell. It also prevents them from putting traps into the water until prescribed dates, which in the case of southwest Nova Scotia, start on Oct. 15 and stretches through the fall. There is one exception to the summer rule, though, and it is well known amongst fishers here: Indigenous people are allowed to harvest lobster for food, social or ceremonial use at any time.

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But the food and social provision does not allow any catch to be sold. And this summer, there was far more coming off the boats than any one community could manage to eat, said Bernie Berry, president of the Coldwater Lobster Association, which represents several hundred fishers who live in communities around the province's southwest tip.

"We're talking about tens of thousands of pounds being landed per day. It was broad daylight. Nobody was hiding," said Mr. Berry. "Nobody was putting a stop to it."

At least part of the reason for this is due to the lingering ambiguity around an Indigenous fishing right that the Supreme Court affirmed almost 20 years ago when it decided the Donald Marshall case. Mr. Marshall was on trial for illegally catching and selling eels. In finding Mr. Marshall not guilty, the court affirmed that Mi'kmaq people have the right to hunt and fish for a living, or what the court termed a "moderate livelihood."

Despite the courts' recognition, policy has yet to be put in place to enable a separate, moderate livelihood fishery, said lawyer Bruce Wildsmith. He was the lead counsel in the Marshall case and now serves as legal adviser to the Assembly of Nova Scotia Mi'kmaq Chiefs. He said the federal Department of Fisheries and Oceans has not yet been willing to enter into a consultation process to develop the moderate livelihood fishery.

"The way they are approaching it is all very slow and painful," he said. "People have lost a lot of their patience."

Out on the water, this has become clear. "Many of our fishers are really, really tired of waiting," said Chief Terrance Paul, fisheries lead for the Assembly of Nova Scotia Mi'kmaq Chiefs. He was careful to say that none of the commercial summer fishing activity being investigated was organized or sanctioned by the bands his organization represents (11 of the 13 First Nations in Nova Scotia). But the activity itself – and the controversy that has flowed from it – are signs that the moderate livelihood issue warrants urgent address, he said.

"We need to clarify who really has the right to go out there for the moderate livelihood fishery," Mr. Paul said, adding that until leaders agree on how to regulate that aspect – including a means for Indigenous people to identify themselves on the water – the fishery will be vulnerable to abuse, including by those who falsely claim Indigenous heritage.

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For some of those entitled to the right, the absence of moderate livelihood guidelines or licences is weakening as a deterrent. Some fed-up Indigenous fishers have decided to test the waters on their own, figuratively speaking, and sell their catch. While this creates a quandary for enforcement officials, these small-time fishers are not the ones that commercial fishermen are concerned about.

"The big concern was the commercial-sized landings … this summer," said Mr. Berry.

Lobster Fishing Areas 33 and 34, known locally as LFAs, combine to form the most voluminous and lucrative swath of Maritime lobster trade. In 2016, the total catch between the two areas was valued at more than $500-million, which made up more than 60 per cent of the $800-million lobster haul across Nova Scotia, New Brunswick and Prince Edward Island, according to federal statistics.

"The primary objective has to be the conservation of lobster stocks in southwestern Nova Scotia. It's the backbone of our economy," said Colin Fraser, the Liberal MP for West Nova.

Commercial fishers in the area first began raising alarms in September, staging peaceful protests at federal fisheries offices along the coast from Yarmouth to Digby. With carefully worded placards that emphasized they were not disputing Indigenous rights, they demanded that conservation rules be enforced. "Our issue is NOT with Aboriginal fishers," the placards read. "We respect their right to fish for food, social and ceremonial purposes."

Nonetheless, emotions were inflamed and the relative peace between Indigenous and non-Indigenous fishers began to disintegrate. Indigenous fishers were sometimes met at the docks with lines of angry commercial fishers. The RCMP charged two men for making threats. Thousands of pounds of dead lobsters were found mysteriously dumped in wooded areas around the southwest shore.

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The controversy simmered into what many on the outside have come to perceive as a feud drawn along racial lines. But fishers at the heart of it say that what has taken place on their bay is much more nuanced. While there ought to be clarity on the Marshall case, they agree, there is another pressing issue at play separate from rights concerns.

That is the thriving black market for off-season lobster. Ashton Spinney, co-chair of the advisory committee for LFA 34, said the black-market activity includes Indigenous and non-Indigenous players – some of whom put traps in the water under the guise of food and ceremonial fishery – and must be shut down.

"This is something that goes from Halifax all the way up to the Bay of Fundy. More so than you realize," said Mr. Spinney, who has held his lobster licence since 1957. "There's an element that really needs to be cleaned up. One way that tensions will ease is if the government puts their foot down, but fairly," he said. "I would hate us to blame it all on one community."

Still, a tit-for-tat cycle has emerged. RCMP are investigating two fishing boats that were set aflame overnight this month. While both were being stored in small, semi-remote wharves, one was owned by a non-Indigenous lobster fisher. The other was owned by Alex MacDonald, a councilman with the Sipekne'katik First Nation who leases a license to fish lobsters commercially each year.

"We've never had trouble like this before," said Mr. MacDonald, who said he thinks his boat was targeted simply because it was out of sight and easy to access. He worries that the boats were burned by someone trying to shift investigators' focus away from black-market profiteers and onto what has been made out as an escalating divide amongst fishers.

An employee at the A.F. Theriault and Son Ltd. boatyard begins stripping the fire-damaged sections of the lobster boat “Amanda’s Pride 1” in Meteghan River, N.S. on Friday, October 13, 2017. Darren Calabrese/The Globe and Mail

If there is a beef to be had, fishers say, it is with the agencies whose job it is to enforce the rules.



"We consider the First Nations fishermen as brothers," said Graeme Gawn, a spokesman for the Maritime Fishermen's Union Local 9, which represents Lobster Fishing Area 34, the highest yielding and therefore most lucrative in the province. "Commercial fishing is the lifeblood of everybody here, including the First Nations. We expect the province to be doing what they say they're doing, which is regulating the buyers."



Nova Scotia's Department of Fisheries and Aquaculture licenses lobster dealers and a spokeswoman confirmed its participation in an ongoing investigation that is being led by the federal government.

Morley Knight, the assistant deputy minister of fisheries policy for Fisheries and Oceans Canada, said investigators are looking into problematic sales and have increased surveillance on the water. "We've been monitoring the fishery carefully and have seized quite a number of traps because they are not properly tagged and therefore pretty difficult to tell who owns them," he said.

He also said rights-related discussions with Indigenous leaders are ongoing but could not provide details due to confidentiality restrictions.

For his part, Mr. Paul is urging calm. "It's never any good to break the law," he said. "It's not going to bring about peace on the water."

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