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Treaty Personhood, Part 1: Supporting Mi'kmaw Moderate Livelihood Fisheries

Photo Credit: Alexander Kooistra, Wikimedia Commons (cropped) Photo Credit: Alexander Kooistra, Wikimedia Commons (cropped)

October 1, 2020

This essay will be the first in a series exploring what it means to be a treaty person in Atlantic Canada and addressing Canadian legal structures that inhibit Indigenous rights recognition and implementation in our region.

What does it mean to be a treaty person in Canada today?

The answer to that question will differ from person to person, as, for each of us, it depends on who we are, where we are from, and where we live and travel. 

For me, as a settler person living in K’jipuktuk (Halifax)—which is one small part of Mi’kma’ki, the large, unceded, and unsurrendered territory of the Mi’kmaq—being a treaty person means several things. 

Among other things, my identity as a settler treaty person in Mi’kma’ki means that I have a responsibility to honour and act in accordance with the covenant chain of Peace and Friendship treaties that the British Crown established with the Mi’kmaq throughout the eighteenth century, including the treaties of 1725, 1752, and 1760-61. The Mi’kmaq entered into those treaties believing that they were agreeing to share the land and its resources with the British; they believed that their right to inhabit their territory and access its plentiful resources would be honoured; they believed that their inherent rights to govern themselves, manage their resource use, and fulfill their responsibilities to the land, water, and other-than-human relations would be upheld; and, they believed that further British settlement required their consent. 

The legitimacy of Canadian establishment and law in Mi’kma’ki today is rooted in the Peace and Friendship treaties in which the Mi’kmaq agreed to share the land and accept the British as amicable neighbours. Mi’kmaw treaty-making recognized that the Mi’kmaq and British had their own sociopolitical cultures and ways of governing themselves and recognized the need for legal processes through which disputes between the two nations would be reconciled. Britain, then Canada, failed to honour its treaty relationship with the Mi’kmaq, appropriated land and resources without Mi’kmaw consent, forcibly subjected the Mi’kmaq to alien jurisdiction, and implemented policies designed to expunge treaty responsibilities through the cultural genocide of Indigenous peoples and the encouragement of cultural amnesia amongst settlers. To the extent that the Government of Canada continues in its failure to build a just nation-to-nation relationship in the present day by properly recognizing and honouring Mi’kmaw rights, Canadian assertions of sovereignty and legal authority in this territory are contestable.

These are simple realities of our situation, but they are realities that many Canadians inhabiting Mi’kma’ki refuse or find difficult to accept. 

Today is Treaty Day—a day that has been observed annually since October 1, 1986, to commemorate the solemn treaty relationship established between the Mi'kmaq and the British Crown. This year, Treaty Day arrives in the midst of a time when conversations about the Peace and Friendship treaties have been front and centre in news media, social media, public demonstrations, and personal communications for weeks, inspired by the launch of Sipekne’katik First Nation’s self-regulated lobster fishery and other Mi’kmaw communities’ asserted plans to move forward in the same way.

For settler observers attempting to understand the situation and educate themselves about the treaty histories involved, the competing visions of Canadian constitutional law that are being publicized in news media and other fora may be difficult to navigate. With that in mind, this essay aims to explain some of the key issues and make them easier to understand. My hope is that readers who want to know more will find this commentary helpful and will feel more empowered to help change the Canadian legal structures that inhibit Indigenous rights recognition and implementation in our region.

Before turning to that discussion, I want to comment briefly on settler treaty education. Among my social circles and the many environmental non-governmental organizations and community groups with whom I work and collaborate, I often meet other settler persons who want to educate themselves about the Mi’kmaw-British Peace and Friendship treaties so that they can be better allies to Mi’kmaq and other Indigenous peoples asserting their rights. I agree wholeheartedly that treaty education is crucial, but I want to sound a note of caution about engaging with the written treaties in isolation. Reading the treaties as they were written is one place to start, but it can lead to fundamental misunderstandings if readers do not look further. For one thing, the British construction of the agreements does not always reflect the Mi’kmaw understanding of the relationship being solemnized. For another, oral agreements, terms, and understandings not reflected in the written text of the treaties are integral to treaty interpretation as well. The significant role that oral terms play in treaty interpretation has been recognized by the Supreme Court of Canada (the “SCC”) and is now entrenched in Canada’s constitutional common law. With that in mind, I encourage settler persons who want to learn more about the treaties not to rely on the written treaties alone, but to make use of many resources that are available.1

Supporting Mi’kmaw Moderate Livelihood Fisheries

The perspectives I share in the commentary that follows are my own, and although I sometimes describe Mi’kmaw perspectives and legal positions that are evident from Mi’kmaw writing, case law, and other resources, I do not speak for any Mi’kmaw community.

Two weeks ago, Sipekne’katik First Nation, a Mi’kmaw community in Nova Scotia, launched a self-regulated lobster fishery. The launch date, September 17, 2020, marked the twenty-first anniversary of the SCC’s first decision in R v Marshall—the historic decision which held that Mi’kmaq have a treaty right to earn a moderate livelihood through fishing. Settler fishers and others opposed to Sipekne’katik First Nation’s fishery responded with protests, and some committed acts of violence, vandalism, theft, and intimidation on the water and on the docks. Hostility and racist commentary proliferated in person and online. 

For many, the situation immediately called to mind the one that erupted in Esgenoôpetitj First Nation (otherwise known as Burnt Church First Nation) in the autumn of 1999, when Mi’kmaq attempting to exercise the treaty right affirmed in R v Marshall suffered violent opposition by settler fishers and law enforcement alike. If you are unfamiliar with that history, Alanis Obamsawin’s documentary Is the Crown at war with us? will give you a powerful introduction. 

As they were in Esgenoôpetitj First Nation two decades ago, the racism and aggression that have been demonstrated in Nova Scotia in recent weeks are deeply concerning.

Sipekne’katik First Nation has licenced Mi’kmaw fishers to fish outside of the open season regulated by Canada’s Department of Fisheries and Oceans (the “DFO”), and settler fishers opposed to the fishery are arguing that it is illegal and will threaten the lobster population upon which their livelihoods depend. As conflict developed in response to the launch, federal Fisheries Minister Bernadette Jordan issued a statement which emphasized that fishing without a DFO licence violates the Fisheries Act and is subject to enforcement. At the same time, the DFO appeared to be prioritizing engagement with Mi’kmaq rather than enforcement, and reports indicate that the ongoing discussions have been positiveSome settler fishers have voiced displeasure and frustration with the DFO’s response, seeing it as a failure to enforce the law and conserve a vulnerable and valuable resource

For settlers who have limited familiarity with Canada’s constitutional law and Canada’s treaty histories, it may be confusing to see Mi’kmaq, settler fishers, and the DFO all citing R v Marshall to support positions with significant differences. Mi’kmaq are asserting the right to earn a moderate livelihood through commercial fishing; they are pointing to R v Marshall as a powerful recognition of that right; and, they are calling out the DFO’s failure to either implement a moderate livelihood fishery or recognize and accommodate the Mi’kmaw right to implement their own. Settler fishers and others are asserting that R v Marshall accepts the DFO’s fundamental authority to regulate commercial fisheries in Canada, along with its responsibility to conserve fish species; they are pointing to the established regulatory system that licences fishers, including Mi’kmaw fishers, to fish in appropriate seasons; and, they are acting in accordance with the view that all Mi’kmaw rights to commercial fisheries must be folded into, and cannot be exercised outside, the DFO’s regime. Although at first the DFO appeared to be taking the same position that I am here attributing to the settler fishers and those who share their views, more recent reports indicate that Minister Jordan may be approaching the Mi’kmaw rights assertions with more openness than her initial response suggested.

With R v Marshall being pulled in various directions by all involved, understanding the situation more deeply requires an understanding of the legal histories that brought us to this point.

The Marshall Decisions

In 1994, Donald Marshall Jr. stood trial for three alleged violations of the Maritime Provinces Fishery Regulations, enforceable under the federal Fisheries Act. The charges were for fishing eels without a licence, fishing during a close time with unauthorized nets, and selling his catch without a licence. At trial, Marshall asserted that the Mi’kmaw-British Peace and Friendship treaty of 1760-61 protected his right to fish and sell his catch commercially. The Provincial Court of Nova Scotia rejected the treaty rights defence and entered a conviction, and that conviction was soon upheld by the Nova Scotia Court of Appeal. 

When Marshall appealed to the SCC, the Court set aside his conviction after finding that the Peace and Friendship treaties of 1760-61 give the Mi’kmaq a treaty right to fish commercially. The Court characterized that right as the right to fish for a “moderate livelihood”. It was an historic decision, and it was rightfully celebrated by Mi’kmaw communities, rights advocates, and allies. However, although the decision represented a significant legal victory for Mi’kmaq, it also reflected the colonialist underpinnings that shore up most Canadian law that relates to Indigenous peoples. In an exceptionally unusual move, the SCC gave added force to those colonialist underpinnings two months later, when it chose to issue further commentary on the decision in response to an application by the West Nova Fishermen’s Coalition for a stay of the decision and a rehearing of the case.

Among legal practitioners, the SCC’s original decision on the matter is known as “Marshall 1”. The Court’s subsequent decision denying the West Nova Fisherman’s application and “clarifying” Marshall 1 is known as “Marshall 2”. 

When I speak of the colonialist underpinnings of the Marshall decisions, I am referring to several modes of legal reasoning that informed the results. There is one in particular that I want to highlight in this essay, and that is the vision of Crown sovereignty that led the SCC to characterize the Mi’kmaw treaty right to fish commercially as a right that is subject to Canadian regulation. To understand that vision, we need to step back further in time to 1990, when the SCC delivered a decision called R v Sparrow.

The Legacy of R v Sparrow

It was in R v Sparrow that the SCC first recognized an Aboriginal right to fish for what the DFO now calls “food, social, and ceremonial purposes”. Canada’s Constitution Act, 1982 was relatively new at the time, and the protections offered by section 35—which “recognized and affirmed” the existing Aboriginal and treaty rights of the First Nations, Inuit, and Métis peoples of Canada—were just beginning to be tested in the courts.

Importantly, Canadian constitutional law distinguishes “Aboriginal rights” from “treaty rights”. Aboriginal rights flow from the distinctive cultural practices that First Nation and Inuit communities engaged in before contact with Europeans, and that Métis communities engaged in before Europeans gained effective control. By contrast, treaty rights flow from solemn treaty promises made to Indigenous nations by the British Crown, or, more recently, the Crown in right of Canada.

R v Sparrow was the SCC’s first opportunity to assess the legal significance of section 35 of the Constitution Act, 1982, and it was also the first Aboriginal rights case to come before the Court. The case stemmed from the conviction of a member of the Musqueam Indian Band in British Columbia who had been charged with fishing with a drift net that was longer than the nets permitted by the food fishing licence that the Band had received from the DFO. At issue was whether section 35 of the Constitution Act, 1982 now limited the federal government’s power to regulate fishing under the Fisheries Act and, more specifically, whether the net length limit imposed by the DFO violated an Aboriginal fishing right that was now constitutionally protected.

Although the SCC held that the Musqueam had a constitutionally protected Aboriginal right to fish for food, social, and ceremonial purposes, the Court also held that the federal government had a fundamental right to regulate their fishing. This ran counter to a position that had been advanced in the courts below, where counsel had argued that the Musqueam Aboriginal right to fish included a corresponding right to self-govern and self-regulate Musqueam fishing. 

According to the SCC, not only could the Government of Canada exercise regulatory authority over Musqueam fishing, it could do so in ways that would actually infringe (that is, violate) the Musqueam right—for example, by limiting the right through rules restricting how fishing could be done. However, and this was a big however, the SCC also held that such infringements would be unconstitutional unless they could be justified through a strict justification analysis that the Court set out for that purpose. 

R v Sparrow can be read cynically as a limited and highly conditional affirmation of Indigenous rights, but it can also be read more optimistically as a decision that articulates several significant principles that Indigenous communities, rights advocates, and allies have used productively in the decades since. Later essays in this series might explore more optimistic readings of the decision, but, for now, understanding the cynical reading can help to contextualize the movement unfolding in Nova Scotia today. 

The legal reasoning in R v Sparrow that led the SCC to accept that the Government of Canada has the ultimate right to regulate fisheries was quintessentially colonialist. In its decision, the Court stated:

It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown[.]

A few paragraphs later, the SCC went on to interpret section 35 of the Constitution Act, 1982— which “recognized and affirmed” the Aboriginal and treaty rights of the First Nations, Inuit, and Métis peoples of Canada—by stating: “Rights that are recognized and affirmed are not absolute”. In doing so, the Court implicitly framed Canada’s constitutional protection of Aboriginal and treaty rights as a kind of concession to Indigenous peoples—one that preserves some of their rights, up to a certain point, while also maintaining Canadian legal control.

Now, it may be that the British Crown had no doubt about its claims to sovereignty, but Indigenous peoples across the land felt differently. Their recorded histories—transmitted orally, through wampum, through writing, and through other means—attest to their lasting view that they did not understand themselves to be ceding their own sovereignties when they entered into relationships with the Crown. 

To the extent that R v Sparrow enshrines a limited and highly conditional view of constitutionally protected Indigenous rights, the decision stands as a dated and problematic product of a colonialist legal order that has often failed to comprehend the nature of Indigenous peoples’ resistance to certain forms of Canadian legal authority. The Musqueam were asserting rights that stemmed not only from their historical fishing practices, but also from their historical sovereignty and inherent rights as a people, including their rights to self-determination and self-governance. 

The SCC’s decision in R v Sparrow established a disturbing precedent for decades of decisions by Canadian courts that have separated Aboriginal and treaty rights to engage in specific activities from corresponding rights to govern and regulate such engagement. Importantly, that colonialist pattern in Canadian jurisprudence does not accord with the current federal government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples, nor does it accord with the government’s Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, which are supposed to inform all of the federal government’s engagements with Indigenous peoples in Canada. Of particular note are principles 1 and 4, which state, respectively, that the Government of Canada “recognizes that all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government”, and “recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government”.

Now, what does all of this mean in the context of R v Marshall

Six years after R v Sparrow, in a decision called R v Badger, the SCC held that just as Canada has fundamental authority to infringe constitutionally protected Aboriginal rights through regulation if such infringement can be justified under the common law, so too can the government infringe treaty rights as well. When the SCC considered the Mi’kmaw rights assertions that were presented in R v Marshall, it adopted the same approach that it took in R v Badger and held that the justification analysis conducted in R v Sparrow applied. In other words, the treaty analysis that the SCC undertook in R v Marshall was grounded by prior legal reasoning that understood Canada’s claims to sovereignty and Canada’s consequent power vis-à-vis Indigenous peoples as legal and historical truths.

Well before Donald Marshall Jr. was ever charged with fishing and selling eels illegally, Mi’kmaw leadership and community members had not only been asserting and exercising rights to fish commercially, but had also been asserting and exercising inherent rights to govern and regulate Mi’kmaw fishing in accordance with Mi’kmaw laws and legal principles. If you would like to read more about the Mi’kmaw laws and legal principles at stake in the current movement, this opinion letter by Eastern Door—a group of leading Mi’kmaw and other Indigenous lawyers in Atlantic Canada—is a good place to start. Canadian jurisprudence at the time of the Marshall decisions had not yet evolved to the point where it could fully comprehend and embrace the nature of the rights that were being asserted, and Canada’s constitutional common law remains in the process of evolution today.

The colonialist repercussions of R v Sparrow and their impact on the Marshall decisions are not the end of the story, however. The SCC’s adoption of the R v Sparrow justification framework in its Marshall decisions means that although Canada’s constitutional common law upholds the DFO’s authority to regulate Mi’kmaw fisheries, it also limits the exercise of that authority considerably. The DFO is expected not to create regulations that infringe the Mi’kmaw right to earn a moderate livelihood through fishing, and any DFO regulation or regulatory regime that does infringe that right must be justified through the SCC’s strict justification analysis. Mi’kmaw decisions to fish outside of the DFO’s regulatory regime are one method of challenging the constitutionality of restrictions that the DFO has put in place and pressing the DFO to prove that those restrictions are lawful.

The DFO’s Ongoing Failure to Recognize and Accommodate a Moderate Livelihood Fishery

The SCC’s Marshall decisions are not perfect: they rely on several colonialist underpinnings, and they constrain Mi’kmaw fishing and governance rights in ways that run counter to Mi’kmaw understandings of the Peace and Friendship treaties. At the same time, the Marshall decisions clearly recognize a Mi’kmaw right to earn a moderate livelihood through fishing, and for twenty-one years Mi’kmaq have been waiting for a just and equitable moderate livelihood fishery that has not materialized.

The SCC’s 1990 decision in R v Sparrow prompted the DFO to develop an Aboriginal Fisheries Strategy that was designed to accommodate Indigenous fishing for food, social, and ceremonial purposes within the existing fisheries regime. After the Marshall decisions in 1999, the DFO decided to take the same approach that it had taken in the wake of R v Sparrow. Specifically, the DFO tried to accommodate the newly recognized Mi’kmaw right to earn a moderate livelihood through fishing by carving out space for Mi’kmaq within the existing fisheries regime. Because DFO-approved commercial fisheries in Atlantic Canada were already “more or less fully subscribed” by that point, the DFO calculated that it would take some time and effort to figure out how to facilitate Mi’kmaw communities’ entrance into those fisheries without compromising the sustainability of the resource.

The DFO’s immediate response after Marshall 1 was to ask Mi’kmaw communities affected by the decision to agree to an interim, thirty-day moratorium on lobster fishing while it developed a plan to accommodate their asserted rights within the existing regulatory regime. Soon, the DFO began to negotiate “practical interim arrangements with bands who could claim the benefit of the Peace and Friendship treaties”.As implementation moved forward, the agreements reached between the DFO and the individual communities that signed them came to be known as the Marshall Response Initiative. 

In the wake of Marshall 1 and the DFO’s initial response, two Mi’kmaw communities chose not to halt their fishing activities and wait for the DFO to develop a Canadian regulatory regime. Those communities were Esgenoôpetitj First Nation in New Brunswick and Sipekne’katik First Nation in Nova Scotia. Rather than agreeing to the thirty-day moratorium requested by the DFO, the communities said instead that they would continue fishing.4

In the year following Marshall 1 and Marshall 2, Sipekne’katik First Nation asserted a right to govern and regulate a Mi’kmaw fishery without DFO control. On behalf of the community, Chief Maloney repeatedly resisted DFO attempts to bring the community into a DFO licensing regime, and he asserted that the community would fish in accordance with its rights under the treaty of 1760-61 and its inherent right to self-government.5

As part of its community management regime, Sipekne’katik First Nation declared a food and commercial lobster harvesting season that allowed fishing during close times set by the DFO.6 Chief Maloney informed the DFO of the community’s intentions, and the correspondence that followed illustrates plainly that although the community was prepared to assert its rights and risk DFO enforcement, it was also willing to collaborate in good faith with the DFO to ensure sustainable management of the lobster fishery. The following excerpt from a July 2000 letter by Chief Maloney is representative of the position he took:

We wish to emphasize that while we recognize and respect the authority of the Minister to place justifiable limits on our treaty fishing, the limits in question are not reasonable and are not justifiable. The Department of Fisheries and Oceans has not provided scientific, social or economic information to so limit our fishing, despite our requests for same. Our own research fishery has shown that an expanded harvest is sustainable and that catch rates are far less than Mr. Bellefontaine told us they would be. We propose to expand our fishery on an experimental basis and to monitor and report catches to see if any adverse consequences are likely. All moulting, berried and undersized lobster will be released. If anything arises that indicates an undue risk from our fishing activities, we will reduce or cease our effort. The health of lobster in LFA 34 is our future, and the future of our children and our children’s children. We will not jeopardize the lobster stock, but neither will we cease fishing in accordance with our constitutional rights just because the Minister and his officials feel it more convenient for us to fish at the same time as non-Aboriginal commercial fishers.7

It is crucial to understand that Mi’kmaw resistance to DFO regulation in the immediate wake of the Marshall decisions did not stem from the desire to launch unlimited free-for-alls, as racist backlash then and now would like you to believe. The resistance stemmed from communities’ commitments to repeatedly asserting inherent self-governance rights in the face of an all-too-slowly evolving Canadian law, and it stemmed from the knowledge that Canadian law, though needing improvement in several respects, nevertheless prohibits Canadian governments from limiting constitutionally protected Aboriginal and treaty rights without clear justification.

Although Sipekne’katik First Nation eventually agreed to accept DFO licenses issued in accordance with the federal Aboriginal Communal Fishing Licences Regulations, the licences did not reflect the full scope of the treaty right to earn a moderate livelihood through fishing, nor did they recognize and accommodate Mi’kmaw rights to govern Mi’kmaw fisheries. Although the licensing regime that the DFO has developed for Indigenous communities since the Marshall decisions allows the Minister to delegate certain management powers to Indigenous communities fishing within regime, selective delegation of regulatory authority claimed by the Government of Canada falls far short of recognizing Indigenous rights to self-government. 

In 2013, the DFO’s continued failure to recognize and accommodate a true moderate livelihood fishery in Nova Scotia sparked another round of litigation in the courts, with twelve of the province’s Mi’kmaw communities applying for a court order declaring that the Government of Canada has a legal obligation to accommodate their treaty right to a moderate livelihood fishery—whether by recognizing and accommodating Mi’kmaw-regulated fisheries without prosecuting Mi’kmaw fishers, or by amending the federal Fisheries Act and corresponding regulations to recognize and accommodate a moderate livelihood fishery licence.8 Because of procedural barriers embedded in the law, the communities were not successful. 

Bringing It Back to Treaty Personhood

A fundamental flaw in Canadian approaches to reconciliation is that, in many cases, Canadian governments simply attempt to slot Aboriginal and treaty rights into existing colonial systems without disrupting the status quo. We see this particularly clearly in land and resource disputes. Throughout most of the twentieth century, Canadian governments operated as though Indigenous peoples had few if any rights to land and resources, and by the time Canada’s courts began to recognize that Indigenous peoples could in fact have substantial entitlements, much of the available bounty was already divided up amongst settlers occupying the land and accessing its resources in accordance with federal, provincial, or territorial regimes. 

In the fisheries context, the Government of Canada responded to the Marshall decisions by buying out several settler licences to create some space for Mi’kmaw communities to enter into commercial fisheries that, in the DFO’s view, were already being exploited at or near maximum capacity. The space created was not enough to ensure the moderate livelihood to which Mi’kmaq are entitled.

What does all of this mean for settler treaty persons who want to encourage just treaty relations in Mi’kma’ki? I can’t answer that question for everyone, but, for me, it means recognizing that many Indigenous rights will never be realized fully unless the current status quo is unsettled and a just treaty relationship is established in its place. 

In Marshall 2, the SCC characterized part of the written argument that the West Nova Fishermen’s Coalition had submitted to the Court as saying, essentially, that Aboriginal and treaty rights should only be recognized to the extent that they do not disrupt or inconvenience settlers. Here’s how the Court responded:

According to this submission, if a treaty right would be disruptive, its existence should be denied or the treaty right should be declared inoperative. This is not a legal principle. It is a political argument. What is more, it is a political argument that was expressly rejected by the political leadership when it decided to include s. 35 in the Constitution Act, 1982.

Since the Marshall decisions, the DFO has been treating the Mi’kmaq like unexpected guests who showed up halfway through dinner and need to be squeezed in at the table and fed even though most of the food has already been dished out. Settlers in this territory should find that treatment as unacceptable as the hostility, violence, vandalism, theft, and rampant racism to which Mi’kmaq have been subjected over the past two weeks, and we should denounce it just as clearly.

The Marshall decisions aren’t perfect, and Canadian constitutional law is—as our courts have described it—a “living tree”. Each of us bears a responsibility to cultivate that tree so that injustices are pruned away and a more progressive, equitable, and enlightened law can flourish. Members of the public can contribute to progressive law reform and help to foster more just nation-to-nation relations in myriad ways, including by attending rallies to enhance visual demonstrations of support, writing letters to or scheduling meetings with government representatives, signing petitions, and sharing resources (like time, food, money, skills, or knowledge) to support the initiatives that Indigenous peoples are bringing forward. 

Additionally, the protests and public commentary claiming that self-regulated Mi’kmaw lobster fisheries are illegal need to be met with an informed understanding of Canadian constitutional law. 

To reiterate comments I made above, although the Marshall decisions upheld the DFO’s authority to regulate Mi’kmaw fisheries, Canada’s constitutional common law puts significant limits on that authority. The DFO should not create regulations that infringe the Mi’kmaw right to earn a moderate livelihood through fishing, and any DFO regulation or regulatory regime that does infringe that right—including by preventing it from being met—must be justified through the strict justification analysis that the SCC has established. Mi’kmaw decisions to fish outside of the DFO’s regulatory regime are one method of challenging the constitutionality of restrictions that the DFO has put in place and pressing the DFO to prove that those restrictions are lawful. 

Rather than leaving the burden on Mi’kmaq to prove that they are exercising their rights legally and legitimately, settler treaty persons should be demanding that the Government of Canada prove the legality and legitimacy of the regime it wishes to impose.

 

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Tina Northrup, Staff Lawyer


Many written resources on the Peace and Friendship treaties are accessible through Nova Scotia’s public library system, including: Mi’kmaq Treaties on Trial: History, Land and Donald Marshall Junior, by William Wicken; Living Treaties: Narrating Mi’kmaw Treaty Relations, edited by Marie Battiste; Mi’kmaq Fisheries: Netukulimk: Towards a Better Understanding, produced by the Union of Nova Scotia Indians and the Native Council of Nova Scotia in cooperation with the Canadian Department of Fisheries and Oceans; and The Mi’kmaq Treaty Handbook, produced by the Mi’kmaw Grand Council, the Union of Nova Scotia Indians, and the Native Council of Nova Scotia. Several online resources have been collected on the Wabanaki Collection website. Treaty Education Nova Scotia is a partnership program that develops and delivers treaty education resources for public schools and the general public, and this video describing the program offers some useful commentary on treaty history in this region. Treaty education opportunities are also available in real time where Mi’kmaw Elders, knowledge holders, scholars, and educators offer teachings to the public through ceremony, speeches, presentations, panel discussions, webinars, or other means, and attending such events when invited creates great opportunities to learn.

See R v McDonald, 2003 NSPC 28 at paragraph 33.

3 See Shubenacadie Indian Band v Canada (Attorney General), [2000] FCJ No 1445 at paragraph 6.

4 See L. Jane McMillan & Kerry Prosper, “Remobilizing netukulimk: indigenous cultural and spiritual connections with resource stewardship and fisheries management in Atlantic Canada” (2016) 26 Rev Fish Biol Fisheries 629 at page 638.

5 See Shubenacadie Indian Band v Canada (Attorney General), [2000] FCJ No 1445 at paragraphs 5-10.

6 Ibid at paragraph 2.

Ibid at paragraph 20.

8 See Acadia First Nation v Canada (Attorney General), 2013 NSSC 284.