A dispute over tribal fishing rights in the Canadian waters of Passamaquoddy Bay has surfaced, following the recent seizure by the Canadian government of lobster traps being fished by members of the Passamaquoddy Tribe. The issue highlights tribal members' lack of rights in Canada, since the tribe is not recognized by the federal government.
     Kani Malsom, a Passamaquoddy fisherman from Sipayik, says about 175 of his traps were seized this fall. "It's our inherent right to fish on that side of the border. We never had to have a license," he says. Malsom relates that his grandfather, John Nicholas, lived across the border in St. Andrews, before he moved over to Sipayik, and used to fish for porpoise, pollock and lobster in the bay, on both sides of the international boundary. The tribe's traditional territory extends approximately from Mount Desert Island in Maine to the Lepreau River in New Brunswick, with the U.S.-Canada boundary line now nearly splitting that territory in half.
     Noting that he has only about a dozen traps left, Malsom says, "That's how I survive. I have to feed my kids."
     In the only comment on the matter from the Department of Fisheries and Oceans (DFO), Communications Manager David Jennings states, "In October 2014, Fisheries and Oceans Canada seized over 400 lobster traps that were set in the Canadian waters of Passamaquoddy Bay, New Brunswick. The traps were seized in Lobster Fishing Area 36 when the season was closed. The matter is under investigation."
     Fred Moore III, Passamaquoddy chief at Sipayik, who owns some of the traps that were seized, says DFO is "infringing on the rights of the Passamaquoddy." He adds, "I don't have to defend fishing in Passamaquoddy Bay."
     According to Moore, a number of tribal members continue to fish in Passamaquoddy territory in Passamaquoddy Bay. He says that tribal members have an understanding with DFO that if they fish in the area where the traps were set that they will not be bothered. However, he says, "Typically they take some of my traps every year."
     Moore, who is also a member of the St. Croix Schoodic Band of Passamaquoddy that is headquartered in St. Andrews, says he fishes in Passamaquoddy Bay under a permit from the Passamaquoddy Joint Tribal Council and St. Croix Schoodic Band Chief Hugh Akagi. "If DFO has any issues with the Passamaquoddy Tribe fishing in Passamaquoddy Bay, they have to take that up with Hugh Akagi."
     "We've offered that they can issue summonses, but they don't have to steal our gear," says Moore. "They'll have to return it, or they'll be taken to court." He adds, "DFO has no standing to take legal action."
     Malsom believes that DFO does not want to take the Passamaquoddy fishermen to court since it would bring up the issue of Canada not honoring the treaty rights of the Passamaquoddy.
     Of the Passamaquoddy treaty rights to fish, Chief Akagi comments, "The one person who has the right to fish in this territory is being hammered by DFO." Noting that the lobster fishery is very lucrative, Akagi says, "It's the only fishery left. He can't go fishing for salmon or cod. This is the only one he can still fish, and they come down on him like a ton of bricks."
     Chief Akagi believes that DFO is playing a game with the Passamaquoddy, saying they "don't know if we exist" and keeping tribal members from being able to implement their treaty rights. "We want our rights respected in our own territory as per the treaty agreements."
      The Passamaquoddys' fishing rights stem from binding agreements signed in the mid-1700s between the British and the Passamaquoddy, and Canada's Constitution Act of 1982 states that the country will respect the treaties that were signed. Because of the treaties, Akagi says Passamaquoddys at Sipayik believe that they have the right to fish anywhere in Passamaquoddy Bay.
      "Canada has a major conflict of interest in its approach to the Passamaquoddy," says Akagi. "They deny us our treaty rights," but the federal government "should just follow its own rules and obey its own laws." He asks, "Where is the integrity of this country when it comes to its respect for Native people?"
     "Canada and Indian Affairs should be respecting our rights in our territories," Akagi says. "When they deny these rights, they are talking about the extinction of our people." That approach "should not be happening anywhere in a civilized society today."
      Following the 1999 Marshall decision in which the Supreme Court of Canada upheld Native fishing rights, DFO "made deals" with reserves so that the Natives would follow DFO's fishery regulations, while allowing a certain number of licenses for each reserve. "DFO doesn't want to share control," Akagi says.
     Concerning the Marshall decision, Jennings, the DFO communications manager, states that, as a policy response to the supreme court's decision, "First Nations potentially affected by the decision were eligible to be issued communal commercial fishing licenses. However, the delineation of the nature, scope and implementation of the treaty right is the subject of ongoing negotiations under the mandate of Aboriginal Affairs and Northern Development Canada."
      Although Akagi says the Passamaquoddys are "having conversations" with DFO, the discussions are not substantive, with "no effort to implement the treaties."
      As for the tribe's ongoing efforts for federal recognition in Canada, Akagi says, "The Supreme Court and the U.S. all think I exist. What right does Canada have to say we don't exist?" He adds, "The Americans say we exist, but Canada says no. Do they disagree with the Americans as well?"