Mi'kmaw Livelihood Fisheries Class Action
“I would allow this appeal because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship. . .” excerpt from the Supreme Court of Canada decision in Marshall.
Hubert Francis (Elsipogtog), Clifford Paul (Membertou), Cody Caplin (Eel River Bar), and Jeffery James Bernard (Lennox Island), are intending to launch a class action on behalf of all status Indians who are Mi’kmaw and who can claim successor rights to the Peace and Friendship Treaties of the 1700’s.
The Treaty right, as declared by the Supreme Court of Canada in Marshall, was a promise by the Crown that all Mi’kmaw persons could fish anywhere and trade the fish they caught. The promise was to all Mi’kmaw wherever they were located and as Marshall verified, applied to salt water fishing and was to facilitate the economic well-being of the Mi’kmaw people.
What this means is that we, as Mi’kmaw,
are all in this together.
The purpose of this litigation is to enforce both the Treaty promise and the aboriginal right (yet
to be established at law) on behalf of all Mi’kmaw to achieve the following:
we now have a miniscule access to the fishing quota for all aquatic species. This needs
stop the Crown from charging and harassing Mi’kmaw in their attempts to exercise their
rights to earn a livelihood;
to have the court declare that the present regulations do not reflect the rights of Mi’kmaw
as they relate to salt water fishing; and
to have the Court declare that the Crown through its actions and otherwise has not even
come close to satisfying its obligations to the Mi’kmaw people.
Most importantly, this case will include all Mi’kmaw as it is the rights of all individual Mi’kmaw
which are at stake. This approach has never been used in the past. This inclusive vision is
essential to prevent division among the Mi’kmaw and our collective inability to advance the
rights of all Mi’kmaw in any meaningful manner.
Unfortunately, the Bands cannot lead in this manner, as they have been limited in their
jurisdiction or the right to do so. (See “Standing or who may bring the Action” section of this
website.) Any individual Band or collection of Bands do not or cannot proceed with such a case
as they do not represent the interests of all Mi’kmaw. The promise under the Treaties was to all
Mi’kmaw. The livelihood rights belong to all Mi’kmaw as does the FSC rights.
The rights are for all and regardless of Band membership. The last 21 years has shown that we
need to be big and inclusive to achieve anything substantial for the Mi’kmaw people.
All Mi’kmaw regardless of Band association - and where they live - are holders of these rights.
Since Marshall, the Bands have made full-on efforts to negotiate with the Crown. However, as
recent and past events have shown, we, as a people, are still struggling to make real the economic benefits as given by the Crown more than 250 years ago. These benefits are ours and
need to be realized on behalf of the Mi’kmaw.
As stated by the Supreme Court of Canada in the Marshall decision, “catch limits that could
reasonably be expected to produce a moderate livelihood for individual Mi’kmaw families at
present day standards can be established by regulation and enforced without violating the treaty
The Crown has fallen way short of fulfilling this obligation. The only method available to have
the Crown adhere to this obligation is to commence a civil action by and on behalf of all
Mi’kmaw so that all Mi’kmaw families can enforce their right to a livelihood fishery. Also, how
can the Bands either individually or collectively negotiate on behalf of all individual Mi’kmaw
families? Well they can’t with respect to matters outside the Indian Act which would include the
treaty and aboriginal right to a livelihood fishery. See “Standing or Who May Bring the Action”
section of this website.
The Marshall decision desperately needs to be advanced past the decision of 21 years ago. As
outlined in Question 9 of the "Frequently Asked Questions" section of this website, the Supreme
Court of Canada could not order the Crown to do anything in that case as it could only deal with
whether Donald Marshall was guilty or not guilty. Yes, the Marshall decision was a huge step
forward in recognition of the Mi’kmaw right – but it is was only the first step. The best, and as it
would seem, the only way to move this livelihood fishery right for Mi’kmaw past Marshall, is to
start a civil class action against the Federal Crown to obtain the necessary legal framework for all
Mi’kmaw to claim and enforce the right. To be successful in any manner, the approach must be
a unified action on behalf of all Mi’kmaw people.
The class consists of any Mi’kmaw as described above,
no matter where they live or where they want to fish.
The class action will also assert that all Mi’kmaw individually have the aboriginal right to earn a livelihood from fishing. Please refer to Question 10 of the Frequently Asked Questions section of this website.
In other words, it is a right to fish and sell the fish
harvested off the Eastern Seaboard of Canada.
This would include the coastal waters of the Provinces
of Nova Scotia, New Brunswick, Prince Edward Island,
Newfoundland and Labrador and indeed, the Province
The right was confirmed in the Marshall decision as a
right belonging to all Mi’kmaw individually.
Please refer to other sections of this website to obtain additional information and background related to this matter.
In order to commence the class action, funding is required. This funding should be considered
by all Bands on behalf of and for the benefit of their members who wish to earn a livelihood
from fishing, and all Mi’kmaw organizations and others who wish to advance the right on behalf
of all Mi’kmaw.
All contributions to the fund may be made by anyone by making cheques payable to the “Wabanaki Society for the Protection of Indigenous and Treaty Rights” and sent by mail to:
Mi’kmaw Livelihood Fisheries Class Action Fund
204-5516 Spring Garden Road
Halifax, Nova Scotia
or by e-Transfer to
See additional information on this website under the heading How Do We Make Contributions?
Additional background on the issues and other matters may be found here: