January 20, 2021
2020 was a year filled with challenges, including in the relationship between Indigenous communities, non-Indigenous communities and the federal government. Heightened tensions between Indigenous fishers and commercial non-Indigenous fishers in Nova Scotia this past year highlights the need for the clarification of Indigenous treaty rights to hunt and fish for a moderate livelihood on the Atlantic coast. The Supreme Court of Canada formally recognized a right of Indigenous people in Atlantic Canada to hunt and fish for a moderate livelihood in 1999. Yet decades later, there’s continued uncertainty about what a “moderate livelihood” is and how Indigenous people, including the Mi’kmaq, can exercise their treaty rights. Perceived inaction or inadequate implementation of these rights has recently led certain Indigenous communities to establish their own “moderate livelihood fisheries” in the waters off Nova Scotia.
Here’s a deeper dive into the rights that are at issue and why disputes like those in Nova Scotia in recent months may be continuing to flare.
The Origin of the Right: Peace and Friendship
From 1725 to 1780, the British Crown entered into a series of separate, but similar, “Peace and Friendship Treaties” with Indigenous peoples, including with Mi’kmaq, Wolastoqiyik and Passamaquoddy Indigenous communities in Atlantic Canada. These treaties set out mutual obligations between the Crown and those Indigenous peoples. Treaty rights, including those confirmed in the Peace and Friendship Treaties, are constitutionally protected by section 35 of the Canadian Constitution, which recognizes and affirms the Aboriginal and treaty rights of Indigenous peoples. Like Aboriginal rights, treaty rights are collective rights and communal in nature. While individuals may enjoy the benefits of these rights, such as hunting and fishing, the rights themselves belong to the community.
The Right Defined: R v. Marshall
The Supreme Court of Canada considered whether the Peace and Friendship Treaties granted a treaty right to hunt and fish in the 1999 landmark case of R. v. Marshall.
Issue. Donald Marshall Jr., a Mi’kmaq person from Membertou First Nation, was charged under the Fisheries Act for catching, possessing and selling eels without a license and doing so outside of the prescribed fishing season. In his defense, Mr. Marshall argued that the Peace and Friendship Treaties enshrined his inherent right to sell the catch of his hunting and fishing, irrespective of modern regulations that may restrict or limit such hunting and fishing.
Moderate Livelihood. The Court decided the Peace and Friendship Treaties of 1760-1761 confirmed the right of the Mi’kmaq people to provide for their own sustenance by taking the products of their hunting, fishing and other gathering activities, and trading for what in 1760 was termed ‘necessaries’. The Court found that the concept of ‘necessaries’ is equivalent in current times to the concept of a “moderate livelihood”, and a moderate livelihood includes such basics as “food, clothing and housing, supplemented by a few amenities”. It does not, however, extend to the open-ended accumulation of wealth.
Constitutional Right. Accordingly, the Court affirmed the Mi’kmaq of Nova Scotia’s treaty right to fish for a moderate livelihood is validated and protected by the Canadian Constitution. The regulatory prohibitions against fishing and selling eel without a license infringed Marshall’s constitutional rights and were inoperative, unless the Crown could justify them – which it could not in this case.
The Scope & Limit of the Right: Marshall II
The R. v. Marshall decision caused considerable uncertainty, an escalation in tensions and, in some locales, even violence. On the one hand, the Court unequivocally recognized a treaty right to pursue a moderate livelihood. On the other, a lack of clarity remained as to how the exercise of this treaty right would impact stocks and interact with existing regulatory regimes. In the days following the R. v. Marshall decision, some Indigenous groups put traps in the water regardless of existing regulations on the basis they didn’t constrain the newly confirmed Treaty right. This led to conflict between Indigenous and non-Indigenous fishers similar to those in 2020. Two months after its decision in R .v. Marshall, and in response to the growing tensions, the Supreme Court of Canada issued a subsequent decision in R. v. Marshall, known as Marshall II, to clarify the scope and implementation of the treaty rights in question.
Local Rights. Marshall II clarified that the treaties, and the benefits granted under them, were local in nature and limited to the area traditionally used by the local community with which the treaty was made.
Regulation. The Court determined that although treaty rights could be infringed, the government must produce sufficient evidence demonstrating that the regulation in question is necessary for conservation or other grounds of public importance. Although the court in Marshall found that the regulations purporting to limit the treaty right by imposing a discretionary licensing system and closed season (on eel fishing specifically) were not justified in that context, it left open the possibility that the government could regulate such rights in the future.
Justification. The Supreme Court of Canada in the R. v. Marshall and Marshall II decisions was clear that although the federal government has the right to regulate Aboriginal and treaty rights, such regulation must be justified. The burden for proving a justified infringement rests solely with the government. Accordingly, the federal government cannot impose whatever regulation it sees fit.
The Clarification of the Right: The Missing Piece
There have been some steps taken since the R. v. Marshall and Marshall II decisions, but significant progress is still needed to ensure a peaceful and mutually acceptable resolution.
Post-Marshall. In 2007, the Department of Fisheries and Oceans (DFO) implemented the Atlantic Integrated Commercial Fisheries Initiative, which provides funding to Indigenous communities to build the capacity of their communal commercial fishing enterprises. And in 2019, DFO reached 10-year interim agreements with a few Indigenous communities throughout the region to guide implementation of their Treaty rights. Criticism, however, has persisted among Indigenous communities that there has been insufficient effort by DFO to ensure the treaty rights the Court affirmed in the Marshall decisions can be integrated and respected within current regulatory regimes. As a result, Indigenous communities, like the Sipekne’katik First Nation in Nova Scotia, have moved forward with their own self-regulated fisheries. In response, there has again been tension and even violence.
Draft MOU. Developments in late 2020 suggest the federal government is stepping up to work with the Mi’kmaq on delineating these rights. On November 29, 2020, the office of the federal Fisheries Minister proposed a draft memorandum of understanding (MOU) to the Sipekne’katik First Nation chief. The MOU isn’t publicly available (yet), but its very existence suggests these rights might soon be clarified. Yet in December 2020, talks again appeared to stall without a resolution, suggesting there’s further work to be done for all parties to agree on just what an Indigenous moderate livelihood looks like and how an Indigenous moderate livelihood fishery can be implemented in Atlantic Canada. These questions will continue to define the relationship between Indigenous communities in Atlantic Canada and the federal government.
Please contact your McInnes Cooper lawyer or any member of our Indigenous Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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