Frequently Asked Questions
Yes! The purpose of the class action is to advance the rights (both aboriginal and Treaty Rights) by and on behalf of all Mi’kmaw persons who are members of the class. The right is an individual right belonging to all Status Indians who are Mi’kmaw and who can trace their successor rights back to the time of the Treaties and beyond.
Each of the Bands (and indeed the local and national
organizations) have members who wish to advance
and defend the rights beyond Marshall. To contribute
to the fund is essentially a contribution on behalf of
each organization’s members to launch an overall and
unified front to present to the Crown and the Courts
and to position the class to advance the rights in dealings with
the Crown throughout this Court process. This will also
facilitate a unified approach to the underlying negotiations involved in any Court actions.
So yes, this is a direct contribution to the issues faced by many members of the Bands and other organizations promoting the interests of the class throughout Atlantic Canada. The declaratory relief or Order from the Court which is being asked for will allow for any member of the class to fish and sell without any charges or harassment from the Crown. Additionally, on a preliminary basis, the class will be seeking a stay of proceedings on all summary conviction proceedings against Mi’kmaw until all matters have been settled. Of course, at this stage we do not know how the Courts and the Crown will respond.
So clearly all Bands and indeed any local or national organizations, should be active participants in funding the class action proposed to represent the interests of their members. Without sufficient funding, this case cannot proceed and it would seem that all Bands and organizations would wish to participate in order to create the necessary united front.
See also comments under Questions 6 and 10, below.
Should the Bands or other organizations (local and national) contribute to the class action?
What happens to the contributions?
Please refer to portion of the website entitled What Happens to Funds Contributed?
Why are contributions necessary?
These issues are extremely complex and there are numerous preliminary issues where the Crown may challenge the validity of the class action. The Crown will likely proceed vigorously to prevent this matter from going forward. This would be consistent with their unyielding efforts to suppress the rights both before and after the Marshall decision in order to avoid the clear findings of the Court in that case. Please refer to The Hubert Francis Saga portion of the website to obtain additional information on this. As that portion of the website clearly shows, this matter and the issues associated with the rights, cannot be advanced in any manner unless a united approach is undertaken with sufficient funding in place.
What about the efforts of the Bands and the other organizations undertaken in the past and presently?
The Bands and other organizations are to be applauded for their previous and ongoing efforts in this regard.
The problem with these approaches is that it comes down to specific groups attempting to advance the rights which belong to their members individually and which can be exercised anywhere in Eastern Canada by any Mi’kmaw. This has resulted in the individual groups and Bands “carving” out the rights and indeed diminishing both the geographical and the broad-based elements of the rights. These rights are individual to all Mi’kmaw and cover all areas of the Mi’kmaw territory, including all waters off the coasts of Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador, and indeed, off the coast of the Province of Quebec. No Band and no other organization has the capacity to deal with this on the scale required. So the Crown has effectively, through the negotiation process, split and substantially diminished the right and, in addition, they have effectively prevented the exercise of the livelihood fishery by the Mi’kmaw by charging and harassment. The Bands have not, and cannot, prevent this from continuing. A unified and unifying approach is necessary. By “unifying” we mean the grass roots advancement of the right by all individual Mi’kmaw who have the right as a class.
How are contributions made?
Please refer to the section of the website entitled How Do We Make Contributions?
What is meant by justification and why is this so important?
In the Marshall case, the Supreme Court of Canada found that regulations under which Donald Marshall was charged were an infringement on the Treaty right and were of no effect on individual Mi’kmaw exercising that right unless justified under the so-called Badger test. (See discussion of the Badger test in the The Hubert Francis section of this website.) The Supreme Court of Canada also stated that such justification could be achieved and the regulations could accommodate the right if catch limits were established in order to produce a moderate livelihood for individual Mi’kmaw families. The Crown does not have to justify or accommodate unless forced to do so through a civil action.
Obviously, no one Band or organization of Bands can possibly achieve this for all Mi’kmaw families. What the Bands or other organizations can do, on behalf of their members, is to contribute to the civil class action.
Will the recent acquisition of a portion of Clearwater by some Bands have any impact on the livelihood fishery available under the Marshall decision to all individual Mi’kmaw?
The short answer to this is no. This acquisition will make available certain licences and the ability to sell harvested fish to and though their partners. It will not however, provide the opportunity for all individual Mi’kmaw to access a livelihood fishery or the quota not presently available required for such a fishery.
What will the advancement of the right do for the overall Mi’kmaw economy?
There is a massive economy associated with the East Coast Fishery. To date there has been no sharing of this economy with individual Mi’kmaw. The quota and thereby the economy has been allocated to non-Mi’kmaw. This is contrary to the Treaty promise and the priority of the allocation of the quota as demonstrated by the Supreme Court of Canada in Marshall and other decisions.
What is clear is this. The effect of advancing the right through the class action is to have transferred to individual Mi’kmaw the right to a livelihood fishery. The Mi’kmaw can access funds through lenders (once they have the ability to fish and trade) to purchase equipment and also can then sell their fish to any third party of their choosing. The impact of this is huge for the Mi’kmaw and the overall Mi’kmaw economy.
Why was the Supreme Court of Canada limited in what they could do in the Marshall case?
Any Court can only deal with the issues placed before it. In the Marshall case, the only issue which could be addressed was the guilt or innocence of Donald Marshall on the charges he was faced with. Donald Marshall was found not guilty. Yes, this was a landmark decision because it found that an individual Mi’kmaw exercising his right to fish for livelihood in those circumstances was not guilty because of his Treaty right.
Unfortunately, for the individual Mi’kmaw this was all the Court could decide. The Supreme Court of Canada in the line of cases following Marshall, stated that they were limited in their ability to deal with any other issues in the Marshall decision.
Consequently, the only method legally available through the Courts in order to take everyone beyond Marshall is to sue (a civil case) the Crown and seek an Order from the Court that any member of the class in the proposed class action can earn a livelihood from fishing off the coast of Atlantic Canada.
This will allow the Courts to expand and advance the Treaty right beyond the Marshall decision!
What are Aboriginal Rights and how do these compare to Treaty Rights?
The law has long recognized the existence of certain rights belonging to Aboriginal peoples in Canada. These are broad and expansive rights which relate in large part to hunting and fishing. Also, these rights are in addition to the rights granted in Treaties and relate back to a time pre-contact.
Just one example of these aboriginal rights are those which
have been labelled as “Food, Social and Ceremonial”
(“FSC”) rights to hunt and fish. Note that these rights do not
permit the sale of game or fish which is caught and there
are strict limitations on the amount that can be caught.
In many cases the treaties were created in such a way that
these aboriginal rights were given to the Crown in the terms
of the treaty. In other words, the aboriginal rights were ceded to the Crown by the governing body representing the larger group. These were what has come to be known as ceding treaties.
This is not the case with the Peace and Friendship Treaties applicable in Eastern Canada. So none of the aboriginal rights were ever transferred or ceded to the Crown. These rights were and continue to be rights that belong to all Mi’kmaw who would be included in the “class” defined by this class action.
When we attend public gatherings these days, often the proceedings begin with the statement that they are being held on “unceded territory” of the Mi’kmaw. These are not empty words. These words express the reality of the Peace and Friendship Treaties.
The Marshall case did not address any of the issues related to aboriginal rights. The issue was simply not brought forward as the parties agreed to only deal with the Treaty right.
Also, that case only dealt with the 1760-61 Treaty. None of the other Mi’kmaw Treaties were discussed, including the 1778 Treaty which was the last of the Mi’kmaw Treaties.
It is the goal of this class action to advance the aboriginal right as well as the Treaty right in the civil courts. The argument in relation to the aboriginal right revolves around the existence of the right at the time of first contact and as this right was never ceded in any of the Peace and Friendship Treaties. It continues to exist today.
What is included in this right is key. Many aboriginal rights do not include the right to trade and sell the fruits of the aboriginal “gatherings”. FSC is an example of this. It will be argued in the class action that these rights associated with salt water fishing are coupled with the right to trade and sell. This is because of the history and culture of the Mi’kmaw. The Mi’kmaw operated for a very long time what would be referred to today as a “fish” based economy.
This economy has been removed from the Mi’kmaw by the Crown. This removal cannot be justified and the so-called “accommodation” by the Crown in sprinkling certain rights to Bands falls far short of their obligation as set out in Marshall, being a livelihood for all individual Mi'kmaw.
In order to establish this right, a great deal of research and experts will be required.
Again, the Bands do not have any jurisdiction over the Treaty right as verified in Marshall as the right, at the time of the Treaties, belonged to the Mi’kmaw people individually. The Mi’kmaw people did not give the Treaty right to the Bands centuries after the Treaties. The Crown, which created the Bands, did not have the Treaty right to give to the Bands. So the Treaty right still belongs to the individual Mi’kmaw who are members of the class in the class action.
Similarly, the Bands do not have any jurisdiction over the FSC as this is a right which belongs to every Mi’kmaw individually.
Exactly the same principles apply to the aboriginal rights as none of these rights were given or transferred by the individuals having these rights to any body, Band or indeed, the Crown. Further, these aboriginal rights (and the Treaty rights) existed before any Provincial boundaries, before there was a Canada and apply to all of the Mi’kma‘ki. Any argument to reduce the rights to Provincial boundaries or further into pods associated with the Bands or other organizations has no basis.
Who can bring the action – or, in other words, who has “standing”?
The situation with the Mi’kmaw for both the Treaty and aboriginal rights being advanced in this class action are unique when compared to other rights for Aboriginal peoples in Canada. These rights do not belong to every Mi’kmaw who are members of the class.
For further information on this issue, please refer to the “Standing or Who May Bring the Action” section of this website.