In the early 1760s, Peace and Friendship Treaties were signed by British authorities and the Mi'kmaq, defining the latter’s commercial rights. “The treaty right was a promise from the Crown that all Mi'kmaq could fish anywhere, anytime and trade the fish they caught” [1]. But in 1993, despite the right to fish guaranteed by treaty, the DFO charged Donald Marshall with illegal fishing. He was then arrested for “fishing for eels without a license and out of season” [2]. This arrest marked the beginning of a multi-year legal battle that continued in the courts. Donald Marshall became “an iconic Mi’kmaw figure” [3], and was seen as the best representative of his people to defend their rights, having already spent 11 years in prison after being wrongly accused of murder.

On September 17, 1999, “the Supreme Court of Canada recognized the hunting and fishing rights promised in the Peace and Friendship Treaties” [4]. A lengthy trial resulted in the 1999 Marshall Decision, which ruled that the Mi'kmaq have a constitutional right to a "moderate livelihood," that is, the ability to fish, hunt and trap for food in all seasons [5]. The case was seen as a major success for Mi'kmaq fishers [2]. However, the Marshall Decision had the opposite effect of what was intended, as it marked the beginning of problems for the Mi'kmaq. The meaning of the term "moderate livelihood" was not clearly defined by the court, leaving it open to multiple interpretations. Thus, after numerous requests from Mi'kmaq and non-Indigenous fishers for clarification of the term "moderate livelihood", non-Indigenous stakeholders and fishers began to actively undermine Mi'kmaq fishing rights, accusing the latter of not respecting federal rules and ignoring initiatives to sustainably manage lobster stocks.

Commercial fishers subsequently appealed the Marshall Decision, leading the Supreme Court to adjudicate on Marshall II, through which Mi'kmaq fisheries became a "regulated" right, but with the DFO able to intervene if it has "a valid reason to restrict treaty rights, such as conservation" [5]. The Marshall II Decision brought the Mi'kmaq fisheries back under DFO regulation and forced them to integrate with the conventional industry. As a result, Indigenous peoples remain able to fish for their livelihoods, but cannot make a profit [5].

As a result, for several years, the treaty-based promises and Indigenous rights have not been fully respected, with the Crown reluctant to engage in meaningful negotiations with the Mi'kmaq. On September 17, 2020, the Indigenous people then took decisive action by defining the term "moderate livelihood" on their own. The Sipekne'katik First Nation initiated a moderate-subsistence commercial lobster fishery, regulated in accordance with their own fisheries management plan. The Indigenous people began to operate without regard for the DFO's Aboriginal Fishing Rights Regulations (which do not recognize the Mi'kmaq rights to fish and trade out of season). This new situation has led to a series of violent reactions from non- Indigenous commercial fishers, who accuse the Sipekne'katik fishers of operating an illegal fishery. This violence has been met with “allegations of racism, discrimination, and colonialism by Indigenous harvesters and much of the public, and has escalated the nature and extent of the conflict” [6]. In addition, the federal and provincial governments have threatened to prosecute people who buy lobster caught out of season [7].

The topic became a national issue in the fall of 2020, when non-Indigenous fishers vandalized two facilities used by Mi'kmaq fishers, setting fire to one of the buildings. They also directly attacked individuals, assaulting Chief Mike Sack and others [8]. In response to these events, the Sipekne'katik First Nation filed a lawsuit against the non-Indigenous fishers, the RCMP, and the Government of Canada for "assault, intimidation, and false imprisonment," seeking financial compensation for the damages caused [9].

As the conflict escalated and worsened, the government's inaction was questioned and called "unacceptable" by Conservative Leader Erin O'Toole during an emergency debate in the House of Commons in October 2020. Prime Minister Justin Trudeau has pledged to work with Mi'kmaq and non-Indigenous fishers to find a solution. "We must have an approach that not only recognizes the inherent rights of the treaties, but implements their spirit and intent," Trudeau said at the time. The federal government also committed more resources to strengthen policing in the area after a fire destroyed a lobster pound used by Mi'kmaq fishers [2].

“The Department of Fisheries and Oceans is currently in negotiations on Rights Reconciliation Agreements (RRA) with 34 Mi’kmaq and Maliseet First Nations, and the Peskotomuhkati Nation, with the objective of addressing and recognizing the historic treaty rights” [6]. Thus, this long and sometimes violent conflict between Mi'kmaq and non-Indigenous fishers remains ongoing.