The Senate

Motion Pertaining to Mi’kmaw Fishers and Communities--Debate Adjourned

November 5, 2020


Hon. Brian Francis
[18:54]

Pursuant to notice of November 3, 2020, moved:

That the Senate affirm and honour the 1999 Supreme Court of Canada Marshall decision, and call upon the Government of Canada to do likewise, upholding Mi’kmaw treaty rights to a moderate livelihood fishery, as established by Peace and Friendship Treaties signed in 1760 and 1761, and as enshrined in section 35 of the Constitution Act, 1982; and

That the Senate condemn the violent and criminal acts interfering with the exercise of these treaty rights and requests immediate respect for and enforcement of the criminal laws of Canada, including protection for Mi’kmaw fishers and communities.

He said: Honourable senators, I rise today to speak to the motion I have just tabled that is the result of weeks of collaboration with Senator Dan Christmas. As the only Mi’kmaw to have been appointed to this place, it is our shared privilege and responsibility to draw your attention to the ongoing struggle of the Mi’kmaw to exercise the right to fish in pursuit of a “moderate livelihood.”

Honourable colleagues, the Mi’kmaw have lived in Mi’kma’ki since time immemorial. Our traditional territory extends to areas now known as Canada’s Atlantic Provinces and the Gaspé Peninsula of Quebec. We never ceded, surrendered or sold our sovereignty over the lands and resources. Today, our nation has a population of about 170,000.

Throughout the 18th century, the Mi’kmaw entered a series of treaties with the British Crown, known as the Peace and Friendship Treaties, in a good-faith effort to end ongoing conflict. The treaties of 1760 and 1761, in particular, promised the Mi’kmaw the right to continue to hunt, fish and gather within our traditional lands. However, the British Crown and, now, Canada have not lived up to this promise.

Starting in the 19th century, the Mi’kmaw were forced onto reserves, plots of land a fraction of our traditional territories. This move left us with little to no access to the land and resources that our ancestors relied upon for survival. The Mi’kmaw were next subjected to the harsh conditions of the Indian Act, the Indian residential school system, and the Sixties Scoop, to name but a few. These colonial and assimilationist efforts have had a lasting impact on our lives. The lack of access to services and resources; gross overrepresentation in the criminal justice system and child welfare system; and high levels of unemployment, poverty and health problems in our communities are clear examples. So is the prevailing denial of Indigenous self-determination and of existing Aboriginal or treaty rights, including Aboriginal title to our traditional land.

Honourable colleagues, the Mi’kmaw have been forced to use litigation, rather than negotiations, to resolve outstanding disputes over rights. In the Marshall ruling of September 1999, the Supreme Court of Canada made a landmark decision on treaty rights in Canada.

It recognized and affirmed the Mi’kmaw have a continued right to harvest and to sell fish to obtain a “moderate livelihood” for themselves and their families, just as our ancestors had done before European contact. The right was codified in treaties made with the Crown in 1760-61 and entrenched in Section 35 of the Constitution Act of 1982.

In response to widespread protest from non-Indigenous fishermen, the court clarified a few months later that the government can regulate the exercise of the treaty right where justified on conservation or other grounds. However, it is noted that the government must first demonstrate that there is a valid legislative objective and only minimally infringe on the exercise of the treaty right. The court also said that the group affected must be consulted and given fair compensation in cases of expropriation.

Colleagues, it is important to note that there has been no justification, consultation or compensation to date for the infringements on the Mi’kmaw treaty right to fish and earn a “moderate livelihood.” It must also be remembered that the Mi’kmaw have fished sustainably for thousands of years, conservation has always been a prevailing principle.

In Marshall, the court did not define what constitutes a “moderate livelihood.” It only stated that it is not for the accumulation of wealth but to secure “necessaries” including “food, clothing and housing, supplemented by a few amenities.”

It is important we understand that the role of the federal government is to negotiate with the Mi’kmaw on how to implement the right to earn a “moderate livelihood” — and not to debate what it means to earn a “moderate livelihood.” It is the Mi’kmaw who must make this determination — and there is no one-size-fits-all answer. What is moderate to one community may not be the same for another.

Honourable colleagues, the highest court of the land ruled over 20 years ago that the Mi’kmaw have a right to fish and earn a “moderate livelihood” for themselves and their families and communities. This amounts to a small-scale fishery with commercial attributes that exist separately from the other types of Mi’kmaq fisheries, the food, social and ceremonial fisheries, which is our Aboriginal right, and the commercial and communal ones, which require federal licences and allow for the accumulation of wealth. Canada has been unwilling to work with the Mi’kmaq to implement this inherent treaty and constitutionally protected right.

The current approach has been to demand that the Mi’kmaq, who exercise their right to earn a moderate livelihood, do so in accordance with federal policies and regulations applied to the commercial industry. Those who have refused have had their gear and traps seized by departmental officials or have been fined, arrested and charged. A few have even faced violence. These actions directly infringe on our right to fish and earn a moderate livelihood.

What continues to be ignored is that the Mi’kmaq are exercising a constitutional right that supersedes the Fisheries Act and the Fisheries Act regulations. Rather than working directly with the Mi’kmaq to find a lasting solution to the dispute, successive federal governments have focused on increasing and diversifying the participation of the Mi’kmaq in the commercial fishery, which has helped strengthen economic self-sufficiency but does not amount to a rights-based fishery.

In 2017, for example, Fisheries and Oceans Canada began to negotiate the so-called rights and reconciliation agreements, which offer only marginally greater access to the commercial fisheries. These agreements have been widely rejected by the Mi’kmaq because signing onto one would mean not being able to implement a rights-based fishery for a certain number of years.

Honourable colleagues, the violent and criminal actions committed against Mi’kmaq fishers and communities in southwest Nova Scotia are extremely upsetting. There is absolutely no justification for these acts. The commercial fish harvesters involved in the cutting of traps, the destruction of property and all other criminal activities need to be held accountable. The government and policing partners should also be held accountable for failing to act swiftly to protect the lives and property of the Mi’kmaq fishers and their communities, as well as for continuing to disregard rights that are enshrined in law. The Mi’kmaq have been let down.

The entire situation has brought back bad memories of the Burnt Church crisis, another dispute over Mi’kmaq rights that took place between 1999 and 2002. It is all still emotional and volatile, but I hope it does not escalate further for the safety and well-being of all.

A positive sign is that a few Mi’kmaq communities that have launched their own moderate livelihood lobster fisheries using their own management plans have been proceeding without intimidation or coercion, which is a sign of mutual respect and cooperation that has prevailed for decades. It gives me hope that other Mi’kmaq communities planning to develop their own fisheries management plans to implement and advance their rights will also be able to proceed peacefully on the waters.

Honourable colleagues, non-Indigenous commercial harvesters continue to raise arguments about conservation. This concept has become no more than a political tool to infringe on rights. The presence of the Mi’kmaq in the commercial fisheries is marginal in comparison. Science has supported the position that the livelihood fishery will not harm conservation. The unsupported fear-mongering must stop. The moderate livelihood fishery is a small-scale one. Its purpose is to meet adequate standards of community nutrition and economic well-being. This type of fishery poses no real threat to conservation or the livelihoods of other users of the resources.

The management plans that regulate the moderate livelihood fishery are based on the long-standing Mi’kmaq philosophy of Netukulimk, which governs the sustainability of our harvest. It is based on having respect and gratitude for all the natural resources provided by the Creator. This code of conduct teaches Mi’kmaq to take only what is needed for the well-being of the individual and community. We do not seek to over-exploit or deplete natural resources. We are keepers of traditional knowledge and sacred protectors of the land and resources. We have a long history of sharing with our neighbours and friends and will continue to do so.

Honourable colleagues, I want to speak briefly now about the importance of honour, a value by which to measure ourselves and our actions. The honorific title of “honourable,” for example, requires that we conduct our dealings with each other and others with dignity, honour and integrity. The constitutional principle of the honour of the Crown, which is central to reconciliation, does much the same for the federal government. The principle arises from the assertion of the sovereignty of the Crown over Indigenous people and the control of land and resources that were formerly under their control. Its purpose is to reconcile pre-existing Indigenous societies with this assertion of Crown sovereignty. The principle establishes an obligation on the Crown to act honourably in all dealings with Indigenous peoples, including by moving diligently in the implementation of Aboriginal and treaty rights under section 35 of the Constitution Act.

The failure to live up to this principle is at the centre of the current dispute over Mi’kmaq fishing rights in Canada. The protection of our Aboriginal and treaty rights is a matter of sacred and binding trust. The Mi’kmaq have been willing to engage in good-faith negotiations for the recognition and implementation of our treaty rights, but we have never had a willing partner. The take-it-or-leave-it approach of the last two decades has to end. A new and better way forward is desperately needed, one that is based on co-development and co-management of the resource.

Honourable colleagues, we are dealing with a matter of honour. If Canada wants to uphold a reputation as a nation of honour, it must start to honour its obligations to the First Peoples who inhabited this land.

The government has promised a nation-to-nation relationship based on the recognition of Indigenous rights, respect, cooperation and partnership. These words mean little if they are not soon followed by concrete action and results.

Honourable colleagues, the passage of this motion would make clear that the honourable men and honourable women in this chamber unequivocally affirm and honour the inherent treaty and constitutionally protected right of the Mi’kmaq to earn a moderate livelihood from fishing and expect the federal government to do the same.

It would also express our collective condemnation for the violent and criminal acts directed at Mi’kmaq fishers and communities attempting to exercise their rights.

Lastly, it would let relevant authorities know that we expect them to equally and fairly protect the life and property, as well as rights of all involved in the dispute, including the Mi’kmaq, and that anything less will not be tolerated.

Honourable colleagues, I encourage you to expeditiously join the debate and give your unanimous support to this important motion.

Wela’lioq. Thank you.

Hon. Marc Gold (Government Representative in the Senate)
[19:07]

Honourable senators, I rise today in support of Motion No. 40, affirming the 1999 Supreme Court of Canada Marshall decision.

On behalf of the Minister of Fisheries and Oceans and the Canadian Coast Guard, I would also like to express her gratitude and appreciation for the work of Senator Christmas and Senator Francis and their calm and sensible voices, as well as for this motion put forward by Senator Francis. It deserves our consideration and our support.

Senator Patterson
[19:16]

I would like to take the adjournment of the debate in my name.

The Hon. the Acting Speaker
[19:16]

I’m sorry, I think we still have people on debate.

Senator Cordy, on debate.

[19:16]

Honourable senators, I will speak today to give my support and add my support to Senator Francis’s motion.

I would like to thank Senator Francis and Senator Christmas for the work they have been doing to find a resolution to the fishery dispute in Nova Scotia. They are doing so in a calm and in a respectful way.

The unfortunate situation that we are seeing unfold in Nova Scotia has been troubling. Acts of violence and physical intimidation against Mi’kmaq exercising their treaty right to earn a moderate livelihood through fishing have been occurring in some areas of Nova Scotia.

The current pandemic and the economic hardships that have followed have, of course, added to the frustrations on all sides. We are living through a time of economic uncertainty and job losses. I know that we are also living through restrictions and reduced access to world markets for all of our fishers. But this, of course, is not an excuse for violence of any kind.

To date, these acts of violence and destruction of Mi’kmaq property have been isolated instances. However, the situation continues to be tense in some communities. The Mi’kmaq fishers, who have been able to fish, as is their right, continue to do so. But they are also acutely aware of tensions that remain in some communities.

As Senator Francis has stated in his speech, the rights of the Mi’kmaq people to fish to provide for a moderate livelihood was codified in treaties made with the Crown in 1760 and 1761. It was entrenched in section 35 of the Constitution Act, 1982, and it was confirmed again by the Supreme Court of Canada in the 1999 Marshall ruling.

Honourable senators, how many times do we need to confirm and then reconfirm these rights for our Mi’kmaq friends?

Treaty rights in Canada have constantly been under attack, and Indigenous peoples have time and time again had to resort to using the courts to reaffirm their rights. Honourable senators, while treaty rights have been confirmed, unfortunately bands have had to use the courts to remind governments of these rights.

However, the courts can only reaffirm and protect those rights. They cannot enforce them. This is the job of governments and law enforcement. We are hearing from Mi’kmaq leaders that many in their communities believe that governments fail to live up to protecting their treaty rights. These communities also believe that local law enforcement is failing to protect them from violence and property damage. The Mi’kmaq have been very patient, but surely — surely — we cannot deny that it is long past time that these fishing rights are protected.

It would be easy if there was only one person or one government to blame for this lack of action, but, honourable senators, it has been 21 years since the Marshall decision upheld the Mi’kmaq treaty rights to a moderate livelihood fishery. Successive federal governments have avoided directly addressing these issues, and it is time for the federal government to step up and to take the lead.

The current government has made reconciliation a pillar of their mandate. It is time for them to put those promises into action and negotiate in good faith to find a path forward toward a solution. If not, I’m afraid that these isolated instances of violence and intimidation may continue, with the possibility of spreading to other jurisdictions across Atlantic Canada and perhaps across Canada as communities try to exercise their own treaty rights.

Colleagues, I cannot end my speech without recognizing and commending Senator Francis and Senator Christmas for their incredible work in helping to find a resolution to this troubling situation. They are the first Mi’kmaq senators in this chamber, and they are working with Jaime Battiste, the first Mi’kmaq member of Parliament. For the first time in history, the Mi’kmaq have a direct voice in both houses of Parliament.

I believe that this will lead to positive changes, not only for their communities but for all Canadians. I cannot think of anyone better to advocate for change in the Senate of Canada than Senator Francis and Senator Christmas, two strong and dedicated voices.

Honourable senators, the majority of Nova Scotians support the right of the Mi’kmaq to exercise their treaty rights, including the right to a moderate livelihood. Nova Scotians condemn these acts of aggression. It is my experience that violence does not solve problems; it simply creates additional problems.

I fully support the efforts of Senators Francis and Christmas, and I fully support the motion before us today. The Government of Canada must uphold the Mi’kmaq treaty right to a moderate livelihood fishery, as established by Peace and Friendship Treaties — as I said earlier — that were signed in 1760 and 1761, and we must stand united and condemn the violent and criminal acts interfering with the exercise of these treaty rights.

Honourable senators, we must also insist on proper enforcement of the criminal laws of Canada to protect those who are the target of this aggression.

Honourable senators, we should pass Senator Francis’s motion. Thank you very much.

Hon. Judith Keating
[19:23]

Thank you, senators. I hope you are as enthusiastic when I’m done speaking.

Honourable senators, I rise today in support of Senator Francis’s motion calling on both the Senate and the Government of Canada to affirm and honour the right to a moderate living fishery of the Mi’kmaq fishers and their communities.

Further, it is imperative that the Senate denounce the violent and criminal acts against the Mi’kmaq fishers in the exercise of their rights and that swift action be taken in the enforcement of the criminal laws of Canada and the protection of the Mi’kmaq community.

Colleagues, as you have heard, it was 21 years ago that the Supreme Court of Canada affirmed the rights of Mi’kmaq fisher Donald Marshall to a moderate livelihood. I will not delve into the particulars of the jurisprudence or the nature of the rights that were affirmed. There’s no need for that, as this is not what this situation mandates. This is strictly about upholding the rights and identifying the means for implementation, because rights without means for exercising them are no rights at all.

Honourable senators, we live in a constitutional democracy, and in a constitutional democracy, we must accept and implement the rights conferred upon all Canadians. With all due respect, it matters not whether we agree with these rights conferred by the highest courts of the land; we are subject to it. We all fall under the rule of law, as does the Prime Minister and the premiers and the millions of Canadians who are touched by it. This is our system of democracy and one for which I care deeply.

The press continues to define the issue as a “dispute between the Mi’kmaq fishers and commercial fishers.” It is not. Commercial fishers are not rights holders. They have been conferred a regulated privilege that requires of them that they respect quotas and seasons. The Mi’kmaq are not required to negotiate their right to a moderate living with commercial fishers. The only negotiation possible on what constitutes a moderate living is a nation-to-nation discussion with the Canadian government.

In the midst of the crisis in Nova Scotia, Radio-Canada reported that Zone 34, one of the largest fishing zones in Canada, has 940 permit holders for a total of 391,200 traps and the Mi’kmaq fishers in zone 34 have 11 boats of 50 traps each for a total of 550 traps.

Make no mistake, colleagues. This is not a conservation issue. Conservation is a matter that the Mi’kmaq take seriously. This is wilful ignorance of the facts. And yes, as much as it pains me to say this, it is racism.

Honourable colleagues, this summer we held an emergency debate in the Senate to denounce racism against Black and brown lives. We questioned ministers of the Crown on their intentions when it comes to systemic racism within their institutions, and we promoted a zero-tolerance approach to racism. I took part in this.

We cannot continue to expect of others what we are not willing to support ourselves:

. . . first, take the plank from your own eye, and then you will see clearly to remove the speck from your brother’s eye.

We must support the motion if we are to retain whatever credibility the Senate has on defending Indigenous rights.

The Canadian Press recently reported that Fisheries and Oceans Canada was planning to seize Mi’kmaq gear and traps in the exercise of their fishing rights in Nova Scotia. A departmental spokeswoman said, “. . . federal officials are not necessarily aware of all actions taken by staff.”

If departmental officers are not themselves aware of fisher rights, then they shouldn’t be employed by Fisheries and Oceans Canada.

Time is of the essence. It’s imperative that the highest echelons of government and the Prime Minister, who is the trustee of the Constitution, repeat as often as necessary that the rights of the Mi’kmaq fishers are not negotiable and cannot be bargained away; that the state of the law evidently must be transmitted down to Fisheries and Oceans; that the issue of what constitutes a moderate livelihood be resolved quickly, nation to nation. After 21 years, the government must have an understanding of what that is.

Finally, those who have transgressed criminal law must be dealt with expeditiously. Anything less serves to promote and even condone unjustifiable and illegal actions.

To quote a recently departed James Bond actor, who upon receiving an award at the age of 85, said, “Though my feet are tired, my heart is not.”

Colleagues, I am not 85, but my feet are tired and so is my heart. I can only imagine what my Indigenous sisters and brothers are feeling. I don’t want to hear from my government that they take this all very seriously and that they are working on it. This must be settled now so that everyone knows what the rules are. It’s the least all Canadians should expect after more than two decades. Only this will quell the ever-present seeds of violence and anger.

We must support this motion, as reconciliation will never be possible if we don’t, at a very minimum, have the courage to defend the rights of our peace and friendship treaty neighbours.

Thank you.

Hon. Renée Dupuis
[19:31]

I wonder if the honourable senator would take a question.

The Hon. the Acting Speaker
[19:31]

Senator Keating, will you take a question?

Senator Keating
[19:31]

Absolutely.

Senator Dupuis
[19:31]

Senator Keating, congratulations on your first official speech in the Senate. I have a question about something you said in your speech. In my view, you were quite right to remind everyone of the federal government’s responsibility to implement the Supreme Court ruling. However, beyond the Supreme Court ruling, there is also the law from 1982. Thirty-eight years ago, the Parliament of Canada passed legislation recognizing special constitutional rights for Indigenous peoples, including the Mi’kmaq. With that in mind, do you believe that any negotiations to resolve the current situation must begin with a very clear statement from the federal government that we are talking about the implementation of special rights, and that federal legislation should reflect those special constitutionally protected rights?

Senator Keating
[19:32]

As I mentioned in my speech, I think it’s crucial that the federal government continue to reiterate, as often as possible, that recognizing these special rights is long overdue and that it is time to resolve this conflict and move towards actually implementing these rights.