What is Not Being Addressed in the Present Conversations
There are a number of issues which are not being discussed or presented in all of the discussions, public and otherwise, related to the present disputes occurring in the Nova Scotia fishing industry. The following lists only some of the issues not being addressed:
this livelihood fishery right belonging to the Mi’kmaw
is not limited only to lobster;
the livelihood fishery right belonging to Mi’kmaw is
not limited to portions of Nova Scotia but applies to
all of the coastline of Atlantic Canada;
it is not about conservation in the manner in which that issue is being discussed;
it is not a right which vests in the Bands due to the nature of the Treaties, and these rights are quite unique within Canada;
the processes available in the summary conviction proceedings as with Marshall are limited and not capable of “advancing” and enforcing the right beyond Marshall; and
these rights deal with fundamental and distinct Treaty and aboriginal rights which vest in all persons who can trace their ancestry back to the so-called “Peace and Friendship Treaties.”
The following outlines a very cursory discussion of all of these points:
The right belongs to the Mi’kmaw and has not been limited at law to any particular species of fish. Indeed, the Marshall decision, although dealing specifically with only eels, speculated that any analysis of the right would involve discussion of all species and the overall considerations respecting each species.
The Peace and Friendship Treaties covered all of what was at the time, the territory known as “Nova Scotia” or “Acadia” which included all of present day Nova Scotia, New Brunswick and an area of the present Gaspe Peninsula (in Quebec) at least up to and including the Bay of Chaleur. As far as “saltwater” fishing is concerned, it would therefore cover and include all of the waters of Eastern Canada and a portion of the coastal waters of the Province of Quebec. So any effort by the Crown to deal with this on a Province-by-Province basis, or indeed, specific areas in each of the Provinces just does not address the issues.
The conversation surrounding conservation issue does not outline the entire legal framework required. Aboriginal and Treaty Rights now have a “special” status due to the present state of the law and the law determined by the Marshall decision. All this is related to the so-called “Badger” test which outlines the priorities in such circumstances.
Yes, the first consideration is conservation of species. The Federal Government has set up quotas for all species which they deem appropriate while denying the right to fish in certain species deemed to be “at risk”. Atlantic salmon would be an example of the latter.
So then the next question is the allocation of the quota. Under the Badger test, the allocation is to first deal with the Indigenous claims, if any, and then distributed elsewhere. An individual Mi’kmaw who wants to fish does not have access to the quota for any species. For instance, with the lobster fishery in Southwest Nova Scotia in the present circumstances, the members of the Mi’kmaw Band are attempting to fish with 5,000 traps. Meanwhile, the licensed fishermen who are non-Mi’kmaw have been issued licenses in amounts far in excess of that.
The Federal Crown refuses to give the Mi’kmaw sufficient rights to any species as all or the vast majority of the quota has been otherwise distributed. This is contrary to the principles established in Marshall according to the Badger test and what the caselaw has established with respect to similar rights. See response to Question 6 under the Frequently Asked Questions section of this website.
The Crown has continued, both before and after Marshall, to charge and harass Mi’kmaw in order to prevent them from exercising their right to fish and trade, all in order to protect the quota system they have set up and misallocated. Mi’kmaw who want to fish and earn a living from this endeavor cannot finance the boats and equipment necessary for the undertaking as financing is not available because they don’t have a license and they risk having all of their fish and equipment seized by DFO if they do fish.
The interesting part about this is that the Supreme Court of Canada found in Marshall that the regulations under the Fisheries Act that Donald Marshall under was charged under, are of no effect against a Mi’kmaw exercising the livelihood fishing right. The only way that they could have an affect is if the Crown can establish that the regulations were justified under the Badger test. The Crown has never provided this justification (or the required accommodation) and yet continues to this day to charge and harass Mi’kmaw. This harassment includes threats of charges and seizure of property and fish. All of this is done to protect the “flawed” quota system under the guise of conservation.
The right is a right which belongs to each and every Mi’kmaw individually. The Bands do not and cannot exercise the right or indeed negotiate it because they do not have the authority to do so. We are not saying that the Bands have not made substantial efforts in advocating for the rights of their members in negotiation and obtaining some concessions from the Federal Government, however this has led to division and friction among the Bands and the other organizations attempting to advance the right. It has also “divided” the right which applies to all of the Mi’kmaw exercising their right to fish into provincial interests and has even divided the areas where a Mi’kmaw may fish within a Province. None of this was approved in Marshall and indeed it would seem that any Mi’kmaw can fish for a species for which a quota has been established anywhere within and adjacent to the traditional areas occupied by the Mi’kmaw. Again, this would include anywhere on the eastern seaboard of Canada, irrespective of where the Mi’kmaw wishing to exercise the right lived or which Band he or she belonged to.
There are a number of reasons why this right is unique to Atlantic Canada. Primarily it is because of the nature of the Peace and Friendship Treaties and also the nature of the aboriginal right and the terms of these Treaties. This uniqueness means that comparisons cannot be made to most, if not all, of the other Treaties in Canada.
These Treaties are referred to in law as “non-ceding” Treaties. All of the Peace and Friendship Treaties are non-ceding – this is for two reasons which will be discussed, however it is important that one, first of all, understands what is meant by a “non-ceding” treaty.
When an indigenous group signs a treaty, there is, in most cases, an organized group which signs the treaty on behalf of the particular group. That organization, on behalf of the group at large, and with the authority of that group, grant and receive certain rights to and from the Crown. In many cases in Canada with the Treaties, the organization “cedes” rights belonging to the group at large such as the right to fish and hunt land title; and other rights to the Crown in order to receive, for instance, annuity payments, control over certain Reserve lands, and perhaps other advantages. In most cases, in the ceding Treaties, all rights to the lands, fishing and hunting, etc. are given up to the Crown for rights given by the Crown.
This “ceding” type of arrangement is not applicable to the Peace and Friendship Treaties for two reasons. First of all, nothing was ceded. The British wanted and needed peace with the Mi’kmaw. The signatories on behalf of the Mi’kmaw gave up nothing and offered nothing other than the promise of peace. At the same time, and in exchange for that promise, the Mi’kmaw requested that the Mi’kmaw people (any individual Mi’kmaw) anywhere could continue with their tradition of “trading” the goods they had gathered to obtain “necessaries”. The British recognized that peace was tied up in the ability of the Mi’kmaw to sustain themselves economically. This was deemed to include the gathering and sale of fish. “Necessaries” has been deemed by the Courts to be of the level of “moderate livelihood” which is not possible at all without access to quota.
The other reason why these Treaties are non-ceding is that the signatories did not have the authority on behalf of the Mi’kmaw to give away any rights including the aboriginal rights to gather and trade. The signatories who signed the Treaties have been found by the Courts to be at most, consensus gatherers.
Consequently, all such Treaty rights and aboriginal rights under the Peace and Friendship Treaties were rights which vested and continue to vest in each and every Mi’kmaw person who can establish successor rights under the Treaties and the rights vested in them as aboriginal rights.
This then brings us to the Bands. The Bands in Atlantic Canada were, at the earliest, created in the 1960’s and were coupled, under the Indian Act, with certain “reserves” set aside. Note that the Bands were not created until 200 years after the 1760 Treaty relied upon by Donald Marshall. How then did the Bands acquire any authority over the rights created by the non-ceding Treaties where all of the rights (including the aboriginal rights to fish and trade) vested in each and every Mi’kmaw who would not belong to any particular Band or who may not belong to any Band whatsoever? This is not possible. Further, the Bands only have the authority to address particular issues associated with management of the Reserves as outlined in the Indian Act! Consequently, the Atlantic Canadian Bands do not have any authority over the rights, which is not the situation with most Treaties across the country.
There are deficiencies in the process provided by the summary conviction Courts and this is evident from the Marshall decision. (See The Marshall Decision and its Limitations) section of this website.) In these circumstances, the Courts only consider the guilt or innocence of the accused. Donald Marshall was found not guilty only when he reached the Supreme Court of Canada six years after he fished for eels. During that six years, Donald Marshall was faced with a trial and two appeals – very expensive and time-consuming. The Supreme Court outlined that they were only dealing with guilt or innocence and therefore could not address other issues including any justification required to be presented by the Crown when any of these issues arise. Also, what would happen the day after the Marshall decision if Marshall or any other Mi’kmaw fished without a license? Well we now know – individual Mi’kmaw fishers would continue to be charged and harassed. This is why defending the charges provides no real remedy to the accused Mi’kmaw fishers. In other words, the charging and harassment will continue no matter what the outcome is – as with Marshall.
We are recommending that a different approach be taken – that is, commencing a civil class action seeking a declaration that any Mi’kmaw who wishes to fish and earn a moderate living can do so and not be hindered by the Crown. Procedures are more flexible and possible outcomes are much more positive for the Mi’kmaw. The analogy which comes to mind is use of a sword as opposed to a shield.
What can be concluded from the foregoing is the following:
These issues are complex and in need of advancement past what was found in Marshall. Since the Marshall decision, the law has developed substantially as the Courts have addressed many aboriginal issues since 1999.
The way to move this forward is not to simply “defend” the criminal proceedings which was done in Marshall, but to proceed with a civil action against the Crown (as was done by Hubert Francis) seeking a declaration from the Court that any Mi’kmaw who wants to, can fish and earn a living from fishing for any species for which a quota has been issued by the Crown, irrespective of whether the quota has been otherwise distributed. This method has been used successfully in a number of cases across the country dealing with many issues, including fishery matters. Any such action would include any aboriginal right to fish and trade which existed prior to the Treaties in question as these rights were not ceded as occurred in many areas throughout Canada.
Moderate living will be addressed in the declaratory relief by saying only that the fishing and trading in the fish will not exceed a “moderate living”. At this stage, that amount has not been determined. However, considerations such as the costs associated with the purchase and financing of boats and equipment is to be deducted from the total revenue received from the sale of the fish before a determination is made as to the amount received by the individual Mi’kmaw which would not exceed what the Courts determine (or the Crown agrees) is a “moderate” living. These costs associated with the “harvesting” vary dramatically between species.
Defense of summary conviction fisheries matters is futile. This is what the Marshall case already determined. The procedural and other benefits available in the civil proceeding create a better method of advancing the right. This can be done through a class action and the “Representative” Plaintiffs would claim such declaratory relief on behalf of the class and the class would consist of any person who is a Status Indian and who can establish their Mi’kmaw lineage back to the time of the Treaties. Damages would also be claimed against the Crown for the period both before and after Marshall on behalf of the class.