The Senate
Motion Pertaining to Mi’kmaw Fishers and Communities--Debate Continued
March 17, 2021
Honourable senators, I rise today to speak on Motion No. 40 regarding the protection and affirmation of Mi’kmaq fishers’ treaty rights. I want to thank Senator Francis for bringing this important matter forward.
I want to acknowledge that the contents of this speech come largely from the Master of Arts thesis submitted by Ms. Karilyn Toovey entitled Decolonizing or Recolonizing: IndigenousPeoples and the Law in Canada. The committee members were Dr. Jeff Corntassel, Dr. Taiaiake Alfred, Dr. John Borrows, and Dr. James Tully.
As Audre Lorde said: “The master’s tools will never dismantle the master’s house.”
Ms. Toovey’s thesis examines the limitations and drawbacks in using the law with respect to cases involving Indigenous rights and title. She demonstrated that tackling issues of rights and title through the Canadian judicial system is potentially dangerous to the advancement of Indigenous rights and title.
So what are the alternatives to legal forums? In her thesis, Ms. Toovey states:
. . . law cannot be separated from culture and law operates to perpetuate culture. In the case of Canada, the law operates to perpetuate a colonial culture. Therefore, when we speak of Indigenous peoples emancipating themselves through the use of a foreign and imposed law, we are asking Indigenous peoples to adopt the very culture that created their oppression in the first place.
Ms. Toovey asks:
In 1982, section 35 was added to the newly patriated Constitution of Canada. . . . what has been the result of section 35? Have conditions changed for Indigenous people? Has it become easier to make rights claims? Have Indigenous peoples been enabled by section 35 to speak in their own voices? Has it led to a revitalization of culture?
By entrenching section 35 of the Constitution the politicians were effectively ensuring that Indigenous peoples would have to take any and all claims to court, further legitimizing the institutions of the Canadian state, and removing Indigenous issues from the political sphere. Effectively, Indigenous peoples were relegated to a world whereby they would have to ask for their rights from their colonizing oppressor, and in order to ask for those rights, they would necessarily legitimate their oppressor.
The people of Burnt Church experienced first hand the futility of section 35 and court rulings on it. Burnt Church was the community most affected in the aftermath of the Marshall decision. When the Marshall decision came down and the Mi’kmaq began to fish they were subjected to violence and arrests. The community of Burnt Church was attacked directly by the non-Indigenous lobster fishermen. Indigenous-owned lobster traps were destroyed and pictures of the Department of Fisheries (DFO) boats chasing, and often attacking, Mi’kmaq were a fixture on news reports. In the end however, it was the Mi’kmaq who faced charges of exceeding their legal limit of lobster catches, a limit imposed by the colonizer. Mi’kmaq Commander of the East Coast Warrior Society James Ward, when speaking of the ensuing criminal trials, stated, ”No one here has any faith in the judicial system. There’s animosity between ourselves and the judge himself and obviously between the fisheries officers present. This is a system that gives (a police) officer two years less a day of community service for shooting a native man in Ipperwash. Why should we have any faith in the judicial system doing anything for us?“
Ms. Toovey explains the Marshall decision by saying:
R. v. Marshall was considered another “win” for Indigenous peoples. In that case Donald Marshall Jr. was acquitted of catching and selling eels. The court determined that, as a result of treaty and section 35, the Mi’kmaq do have a right to . . . earning a “moderate livelihood”.
Doug Cuthand, in his article in the Regina Leader Post on September 26, 2020, stated:
The term “moderate livelihood” is not a legal term, and First Nations seem to be the only people in Canada who are subject to it.
Ms. Toovey continues:
Marshall relied on a 1752 treaty as evidence that the colonial regime had always recognized the right of the Mi’kmaq to sell fish given the inclusion of a “truckhouse” clause in the treaty. The “truckhouse” clause allowed the Mi’kmaq to bring their catch to be sold at truckhouses (essentially trading posts) in order that they may earn a “moderate livelihood”, but the Mi’kmaq are prevented from an “open-ended accumulation of wealth . This judgment led to an extreme backlash against the Indigenous fishery, and led to violent clashes between Indigenous fishers and the Canadian fishery. The Supreme Court responded to this by releasing its judgment in Marshall 2, which curtailed the rights earlier acknowledged by the court. The Marshall 2 court notes that the Indigenous rights were subject to government regulation. The court in Marshall was accused by many of practicing a sort of judicial activism, with many stating that it was indicative of the courts unbridled willingness to grant open-ended rights to the Indigenous. . . . it is not for the court to “grant” a right that already exists, and more frightening still was that the first judgment was already restrained, and yet, as has been proven by the Marshall case, this restrained acknowledgment that an Indigenous right exists was fraught with such huge political ramifications that the court was forced to bend.
. . . the Marshall decision leaves Indigenous peoples with the right to fish, and sell their catch, but only within a highly regulated and colonial regime, that is set up, maintained and enforced by the colonial parties such as the Department of Fisheries and Oceans, the courts and the police.
The Marshall decision made evident just how much the judiciary is influenced by popular opinion, in that the court further restricted the rights it recognized the Mi’kmaq to hold. . . . the judiciary exists as a result of political appointment . . . . The judiciary is ultimately accountable to the politicians, who are ultimately accountable to the majority . . . . but it is certainly not accountable to the Indigenous population. As Patricia Monture-Angus points out,
The judicial process on which we rely to resolve Indian claims is not accountable to the people whose future it determines. Canada (either federal or provincial governments), on the other hand, can by the authority vested in its legislative powers, circumvent judicial decisions by passing or amending the statutory provisions. This forces courts to at least acknowledge seriously the position the various Canadian legislatures take on certain issues. No such deference to Aboriginal governments exists in the present balance between judicial and legislative powers.
Long before the arrival of Europeans on this continent Indigenous people had complex systems governing their fisheries that allowed for sizable catches, as well as conservation.
. . . in Canada, by 1884 the Dominion government required Indigenous peoples to seek permission from the colonial government to fish for food (this, despite the fact that non-Indigenous people did not need a license to food fish) and by 1888 the Indigenous peoples could no longer sell fish without a license.
The DFO has long used conservation concerns as a means to control, and in many cases, halt the Indigenous fishery.
Parnesh Sharma has uncovered some of the disturbing ways in which the DFO pushed Indigenous peoples out of the fishing industry. Sharma details the fishing season of 1995 in which the DFO asked Indigenous peoples to not catch their allocation of fish due to conservation issues. There was no such conservation issue . . . . As Sharma notes, “Rather, the DFO, under intense pressure from the commercial lobby, lied to the aboriginal fishers and simply reallocated the aboriginal food fish to the commercial fishery. . . The decision to violate aboriginal fishing rights and the terms of the AFS agreement apparently occurred with the full knowledge of the Federal Minister of Fisheries Brian Tobin.”
For the Mi’kmaq, the Marshall decision did not create a right, the Mi’kmaq already held the right. What the Marshall decision did was create a stronger resolve within communities to resume the fishery that had been vital to their communities and culture for thousands of years. By February of 2000, the Mi’kmaq had decided to take the political initiative (partly as a result the second court ruling in the Marshall decision . . . .) and define their own rights, outside of Canadian courts, outside of colonial legal structures. What resulted was the Esgenoopetitj Fisheries Act and Management Plan. The creation of this came out of a process owned by the community of . . . . Burnt Church, whereby extensive consultation took place.
Many Indigenous communities are at a crucial point, where languages are being lost, and ways of life are being forgotten. For coastal communities the need to educate young people about the culture necessitates the return of the traditional fishery.
The Indigenous peoples of both the east and west coasts will face continued resistance to their fishery as commercial interests begin to face restrictions in light of diminishing stocks.
. . . going to court confines rights to the states interpretation of them. It removes the community from defining for themselves what their rights are, what they look like and how they will be exercised and puts those rights and the definitions of those rights into the hands of the state and . . . puts the maintenance of a culture into the hands of the state, and the state has repeatedly proven that it’s motive is to at the very least subsume Indigenous culture, if not outright destroy it.
Were gains made for communities as a result of acts of resistance? . . . the actions were . . . successes because of how they brought communities together. In some cases communities already had a measure of solidarity, but in other cases communities were brought together that were otherwise fragmented. James Ward . . . stated that the incidents at Burnt Church . . . . left a lasting impression on the community, with a renewed sense of community and pride.
. . . after 500 years of colonization, Indigenous peoples have demonstrated they are not in short supply of [patience and strength].
. . . the exercising of rights, acknowledges what a court room simply cannot; that communities are the sum of all their parts, that issues cannot simply be reduced to one of land, fish, trees. By not simply taking these issues into court Indigenous peoples are maintaining their right to define who they are, what they are and what it means to be Indigenous. In a sense, the exercise of rights has become a part of ceremony, the ceremony that is community, solidarity and survival.
Honourable senators, let’s support our fellow senators and call upon the Government of Canada to uphold Mi’kmaw treaty rights to a moderate livelihood fishery safely and with the blessings of Canada. Thank you.
Honourable senators, I rise to support the joint motion of Senator Francis and Senator Christmas calling on the federal government to finally uphold the Mi’kmaw constitutional treaty rights to a moderate livelihood fishery and condemning the violence that occurred last year in Nova Scotia to impede these rights.
This motion, introduced in November 2020, has added urgency because of Minister Jordan’s statement of March 3, indicating the government’s intent to unilaterally regulate moderate livelihood fisheries for lobster within the established seasons, alleging conservation grounds.
We have all seen Senator Francis’s and Senator Christmas’s statements in response, raising serious deficiencies around consultation and conservation claims. The government has also not accommodated our colleagues’ proposal for co-management of this resource through an Atlantic First Nations fisheries authority, advanced in the fall with the support of MP Jaime Battiste.
The federal government’s long-running failure in this business is undeniable. What’s more, successive governments seem oblivious to the teachings of the Supreme Court of Canada from more than 20 years ago now.
From the first Marshall decision, rendered by the Supreme Court on September 17, 1999:
Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi’kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right. In that case, the regulations would accommodate the treaty right.
In the second Marshall decision, rendered on November 17, 1999, the court added:
. . . the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi’kmaq rather than by litigation.
Failing a modern agreement, the court further stated that the treaty right may be regulated — and even in some cases infringed — for conservation or other compelling public objectives, but:
A “closed season” is clearly a potentially available management tool, but its application to treaty rights will have to be justified for conservation or other purposes. . . . The complexities and techniques of fish and wildlife management vary from species to species and restrictions will likely have to be justified on a species-by-species basis.
I further quote:
The Minister’s authority extends to other compelling and substantial public objectives which may include economic and regional fairness . . .
To summarize, the Supreme Court of Canada has invited parties to negotiate a modern agreement and, failing such a negotiated agreement, described the procedures for regulating treaty rights. The Supreme Court said that the regulations, when adopted, if they constitute an infringement on the right to catch for a moderate livelihood, will have to be a minimal infringement, which should result from adequate consultations and should provide for a fair compensation.
For example, treaty rights holders in the Gaspé Peninsula have accepted commercial access models, like the Maliseet of Viger, who signed an agreement with the federal government in 2019. However, the government cannot impose such a model. The affected nations have rights that supersede commercial licences. These nations are not obligated to exercise their rights under a new treaty if they prefer to exercise the rights they hold under historic treaties. This approach has to be respected and based on the rationale of the moderate livelihood framework. The government must honour that choice.
Unfortunately, the government did not act accordingly. The lack of resolve has led to ugly behaviours from commercial fishers when the Mi’kmaq decided to enforce their treaty rights — treaty rights that are constitutional and superior to the commercial rights — and a slow response from the RCMP followed.
Moreover, earlier this month, Minister Jordan, in her statement, failed to address problems identified by Senator Francis and Senator Christmas, and continues to act unilaterally and to impose a paternalistic approach. This decision — which she says is necessary for the protection or the conservation of the resource — is very regrettable and certainly not respectful of the treaty rights.
Once more, we have a government failing to bring political will to a real problem and to recognize important, constitutionally protected treaty rights.
The recent event in Nova Scotia and previous events elsewhere in Canada have shown that there is a real social problem in Canada. Many Canadians have an insufficient understanding of the history, geography and reciprocal nature of treaties with Indigenous nations, their constitutional status and their practical consequences. This lack of understanding is a failure of our education systems, reflective of a history of racist federal policies, as we know from Call to Action 62 of the Truth and Reconciliation Commission.
Treaties are foundational law. As former senator Sinclair wrote to the Prime Minister on October 16 last year, regarding the violence:
. . . this situation is a clear and powerful test as to whether Canada is indeed a country of laws, as there is zero legal ambiguity in the present circumstances, with respect to both criminal law and the constitution.
In general, we should not tolerate a misguided view of treaty rights as a valid source of grievance for non-Indigenous peoples such as commercial fishers. All Canadians have derived economic benefits from treaties, including the lands and resources that built this country. Education can also further the understanding of how treaty rights interact with commercial fisheries. I repeat, treaty rights are far superior to commercial fishers’ rights.
In November, many Canadians learned that a coalition of Mi’kmaq communities, including the Membertou First Nation, which Senator Christmas belongs to, had acquired 50% of the shares in Clearwater Seafoods. Clearwater is the largest holder of commercial shellfish licences and quotas in Canada. That doesn’t solve the problem, though. The Senate could play a role by explaining the differences, from a legal perspective, between commercial licences and moderate livelihood fishing, as well as connections to fishing for food, social and ceremonial purposes under section 35 of the Constitution Act, 1982, concerning the rights of First Nations.
Nationwide, public opinion polls offer hope that there might be a unifying path forward in full respect of treaty rights and conservation. According to Nanos, almost three in four Canadians say that the best path forward in the Mi’kmaq lobster fishing dispute is to make sure that Indigenous fishing rights are respected while also ensuring that Indigenous fishers follow federal conservation rules.
This leaves open, however, what those conservation rules should be and how they should be co-developed. Here, the alleged conservation concerns raised by the minister appear greatly overstated. The Mi’kmaq lobster fishery is small in scale. In one fishing zone at issue in Nova Scotia, as Senator Keating referenced earlier, we are talking about 550 Mi’kmaq traps compared to 391,000 commercial traps — one seventh of 1%.
Also important, our American neighbour’s example suggests that Atlantic lobster reproduction does not require seasonal regulation of the catch for conservation. In Maine, the lobster capital of the U.S., there are no seasons. The Canadian seasons are apparently more about lobster price, and also because seasonal hard-shelled lobsters may be more safely transported. If this is the case, why is this rationale being publicly conflated with conservation?
On March 3, Minister Jordan said, “Seasons ensure that stocks are harvested sustainably and they are necessary for an orderly, predictable, and well-managed fishery.”
However, if seasons are not in fact required for lobster conservation, it is difficult to accept this conclusion. Management of the overall catch could be sufficient, as stated by Professor Robert Steneck of the University of Maine’s School of Marine Sciences. This could be done through co-management with Indigenous nations. Instead, it seems that the government’s overriding rationale probably relates to the economic interest of commercial fishers and maybe an upcoming election.
For example, the minister referred to the established seasons as distributing “economic benefits across Atlantic Canada.”
If the government’s primary rationale is economic, the government should be up front about it. The government should clearly explain its objectives with evidence, such as those related to use, prices and returns for fishers, so that objectives and evidence may be evaluated and alternatives weighed. Exaggerated claims about conservation do not advance policy solutions or build trust, particularly with the history of rights violations.
I would like to point out that this type of argument is quite baffling, if not insulting, to Indigenous peoples, given the impact colonialism has had on the development of natural resources in North America.
In the late 19th century, bison were hunted by the new arrivals, and their numbers dropped from 50 million to a little over a thousand today. This destroyed the economic prosperity of Indigenous peoples of the plains. The commercial whale fishery has led to the near extinction of the North Atlantic right whale. Senators will recall the more recent history of Atlantic cod overfishing.
In considering any conservation plans for the Atlantic lobster or any other natural resource, I think that the federal government and non-Indigenous Canadians would do well to listen to what Indigenous partners have to say on conservation, including the Mi’kmaq principle known as netukulimk.
The recent response from the minister shows that a lot remains to be done and that the government’s response is not yet meeting the teachings of the Supreme Court. But I believe the Senate could assist in reconciliation.
First, the Senate can play a public education role about treaty rights and the categories of fisheries. Commercial fisheries are not ancestral fisheries.
Second, the Senate can play a role in depoliticizing the moderate livelihood fishery issue. We should, of course, take our lead from Senators Francis and Christmas on other policy options for the Senate beyond this motion. However, I do think senators’ long tenure and policy lens are assets that could be helpful.
In closing, senators, I encourage you to adopt unanimously this motion in the spirit of the Peace and Friendship Treaties and of reconciliation. Thank you. Wela’lin.
