The Senate
Motion Pertaining to Mi’kmaw Fishers and Communities--Debate Continued
November 17, 2020
Honourable senators, I support the motion put forward by our colleague Senator Brian Francis. The long-standing treaty, constitutional and legal factors that underline the conflict we have witnessed in relation to the inshore lobster fishery of southwest Nova Scotia should have been fully and equitably addressed in nation-to-nation discussions of long ago. However, they have not been. It is imperative that they now are reconciled.
While this necessary nation-to-nation reconciliation advances, it must do so without any violence or threat of violence against person or property. It must advance in an environment in which those who are charged with upholding the right do a better job at their job. Negotiations cannot move ahead if there exists a climate of threat or fear. Violence is not absent if open conflict is replaced by gossip, innuendo and online bullying. All of these kinds of attacks must end.
I wholeheartedly acknowledge and thank Senators Francis and Christmas for the long hours and hard work they have put in trying to ease this conflict and find a just way forward. This is along with the years of work that they have put in before the current situation. They have both sought to find just resolutions of the many issues related to Mi’kmaq Nation rights through nation-to-nation negotiations that have occurred in the Atlantic region and beyond. This work is not over and, as the process that is now unfolding moves ahead, I am hopeful that the wisdom and advice of Senators Francis and Christmas will be used to inform and help guide what is under way.
The legal and regulatory aspects that underlie and flame this conflict are not new. Indeed, some of them date back to the treaties of early 1760s. In those, as in subsequent documents, including the Constitution Act of 1982 and the Supreme Court’s Marshall decision of 1999, the framework for reconciliation was defined. Sadly, adherence to that framework and the development and enactment of a collaborative, equitable and just enjoyment of shared resources has not been achieved. Yet, resolution is needed as nation-to-nation negotiations are the foundation upon which success, now and in the future, will be built.
A different and more acceptable path forward must be found. It may be that this path forward is not dependent on a one-size-fits-all framework. Due consideration needs to be made for a number of approaches that may appear somewhat different from another but lead us all to positive outcomes.
The southwest Nova Scotia situation also includes further complexities that must be considered. There have been decades, if not centuries, of inshore fisheries conducted by non-Indigenous fishers. There is currently a large and successful commercial fishery in which both Indigenous and non-Indigenous fishers participate. These fishers have provided for their families and have kept their communities vibrant and alive because of that economic base. As nation-to-nation discussions continue, it is important that all voices be heard. If all those who are engaged in this conflict do not become part of the solution, the problems may well continue.
It is not just commerce, legal responsibilities and rights that need to be considered. An environment is needed where all parties begin from a place of respect and a willingness to get to know each other, where they strive to listen and to understand that there is a realization that genuine reconciliation cannot be achieved simply by legislation or litigation. In my opinion, we require a reconceptualization—
Honourable senators, we are having technical difficulty, so if you agree, the next debater on my list is Senator Pate. We will hear Senator Pate and hopefully then we can go back to Senator Kutcher after that.
Honourable senators, we owe our colleagues Senator Christmas and Senator Francis a huge debt of gratitude. We thank them for doing all they are able to keep and sow peace in the face of rising tides of anti-Indigenous racism and lawlessness as Mi’kmaq fishers exercising their rights were targeted in violent and terrorizing acts that destroyed property and endangered lives.
As Senator Keating summarized so well in her comments, Mi’kmaq fishing rights were recognized 21 years ago by the Supreme Court of Canada in the Marshall decision. These rights are safeguarded by the Peace and Friendship Treaties of 1760 and 1761 and by section 35 of Canada’s Constitution Act.
Yet, as in so many other instances, we recognize in the events of late that rights without recourse to remedies can amount to no rights at all. Neither the laws of Canada nor the state forces tasked with upholding those rights have protected the Mi’kmaq. Those who are most disadvantaged and who are required to fight to have their rights upheld are too rarely assisted by those with the privilege, power and resources to exploit them.
I will not repeat but want to be clearly understood as concurring and standing with Senators Christmas, Francis and Keating. In addition, I ask you to reflect for a minute on the 1999 Marshall decision. Donald Marshall, Jr. — “Junior” as he was known to family and friends — spent a lifetime experiencing racism. Wrongfully accused and convicted of murder, he served 11 long years in prison before his conviction and life sentence were overturned. Many of us who worked and walked with Junior remember the years of fighting the corrosively racist, criminal, legal and correctional systems in which a presumption of guilt, not innocence, thwarts too many to this day.
The royal commission established following Junior’s eventual acquittal and release from prison details a litany of discriminatory failures of both systems — failures that persist today, failures that, despite his exoneration, contributed to the subsequent impediments that dogged his efforts and those of so many others released from prison.
The stigma of criminal convictions and prison sentences, no matter whether they were wrongful, multiplied by racist and other discriminatory attitudes, too often interfere with the efforts of those impacted to be able to support themselves, their families and their communities.
The fight for justice for Junior took its toll on him, as well as his entire family and community. His father, then the Grand Chief of the Mi’kmaq Nation and a successful business owner, suffered serious economic marginalization. Junior endured lifelong struggles with depression and alcoholism. His case is considered a judicial trailblazer for other Canadians wrongfully convicted of murder.
Junior was particularly focused on assisting Indigenous youth. We shared a concern about the increased criminalization and imprisonment of poor, racialized young people. At around the same time as he was catching and selling eels and beginning what would be a six-year legal battle over First Nation treaty rights, he invited me to join him at a gathering near here at Kitigan Zibi.
Every August, world renowned Algonquin Elder William Commanda — grandfather of our dear friend Claudette Commanda — organized an annual Circle of All Nations gathering as part of an international peace movement. We joined hundreds of visitors from around the world who came to hear Elder Commanda’s teachings about the importance of the development and adoption of what we now know as the UN Declaration on the Rights of Indigenous Peoples — and the need to combat racism and discrimination by promoting good relations between nations and the protection of Mother Earth.
When he went to court to assert Mi’kmaq fishing rights, Junior Marshall knew he was doing so in a legal system that perpetuates systemic racism and would likely not treat him fairly. Indeed, to obtain recognition from a Canadian court of the right that Mi’kmaq fishers are exercising today, Junior was charged and then convicted by two courts before his rights were eventually upheld.
As you know, Junior’s case went all the way to the Supreme Court of Canada not just once, but twice, and in 1999 resulted in the landmark ruling that upheld Mi’kmaq fishing and hunting rights, subject only to a very restrictive process for justifying conservation requirements and other important public objectives. With characteristic compassion and humility, Junior reminded us all that, “I wasn’t there for myself. I was there for my people.”
Following the Marshall decision, Canada did not take adequate steps to negotiate with the Mi’kmaq the implementation of fishing rights or to prevent harassment and violence against those who attempted to exercise them. Worse yet, Department of Fisheries and Oceans officials joined in the harassment of the Mi’kmaq. This took the form of issuing fines, arrests and charges against those exercising their rights as well as violent tactics like those employed in Burnt Church and other places.
These actions sent the message that what the Mi’kmaq were doing was somehow wrong and illegal, which in turn emboldened the kinds of violent actions led by some commercial fishers recently.
Canada issued some commercial licences to communities while informing them that those were not intended to be the implementation of their fishing rights. These licences permitted some Indigenous communities to develop processing plants and expand related businesses.
In 2013, Canada promised to restart negotiations in response to a lawsuit filed by 12 Mi’kmaq communities but has made no progress in the seven years since. Legal experts emphasize that such access to the fishery falls well short of the moderate livelihood right protected by the Friendship Treaties and Canada’s Constitution, particularly in the context of centuries of assimilation policies and unjust taking of Indigenous land and resources that have too often pushed Indigenous people to the social and economic margins.
Today, more than two decades after the Marshall decision, Canada’s response to Mi’kmaq fishing rights remains unconstitutional. Mi’kmaq have developed and are developing management plans for fisheries based on the concept and long-standing principle of Netukulimk, which emphasizes taking only what is needed from the land and resources for the well-being of the community. It is vital to understand that all activities undertaken by the Mi’kmaq are governed by Netukulimk, a way of life or a code of conduct that teaches respect for the land and its resources and encourages using only what is needed to achieve adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity or productivity of our environment. It thereby promotes sustainable and responsible harvesting of the resources for generations to come.
In recent years, as they worked to exercise these rights, disturbing racist violence has resurfaced. Mi’kmaq water protectors have faced risks of arrest, criminalization and imprisonment for asserting rights under Mi’kmaq law to protect traditional and unceded Mi’kmaq territory from environmental degradation. The National Inquiry into Missing and Murdered Indigenous Women has documented how violence and legal prosecution are too often used against Indigenous people seeking to protect rights and communities.
While references to the rule of law are nearly omnipresent as a tool for criminalizing Indigenous land and water keepers, the notion of rule of law is too often seemingly invisible when it comes to their protection.
With respect to the situation of Mi’kmaq fishers, Indigenous leaders have repeatedly questioned the failure of police and the federal government to intervene to uphold the rights and ensure the safety of Indigenous people.
From the Assembly of First Nations to the Native Women’s Association of Canada, the government’s failure to respond has been flagged as an indication that the violent actions against Indigenous people are condoned. While some have pointed to the need to conserve lobster stocks as an excuse for racist acts, as Senator Keating reminded us, Mi’kmaq fishers are equivalent to less than 1% of the usual commercial fleet, and previous overfishing by commercial fishers in traditional and unceded Mi’kmaq territory has passed without comment from many of those now zealously advocating conservation.
By contrast, the activity of Mi’kmaq fishers reflects community and environmental well-being and upholds such international standards as the UN Sustainable Development Goals. In Mi’kma’ki, we are witnessing what has too often been a pattern in Canada: breaches of the rule of law, state failure to protect Indigenous peoples from ongoing systemic racism and inequality, individual and collective violent racist attacks, and lack of action to ensure reconciliation and self-governance.
We need urgent proactive steps to end and remedy these wrongs. We must not continue to allow them to be replayed and repeated. It is time for the federal government to show a true commitment to negotiate in good faith with the Mi’kmaq, honouring Canada’s treaty obligations to find a lasting resolution.
All of us must stand up to racist ideas, attitudes and actions, and commit to doing all that we can to strive for reconciliation. Gratitude and appreciation to our Indigenous colleagues for yet again leading the way.
Wela’lioq, Meegwetch, thank you.
Honourable senators, I am honoured to speak to you today from Mi’kma’ki, the unceded territories of the Mi’kmaq people.
Colleagues, yesterday in preparation for speaking in support of Senator Francis’s Motion No. 40 on Mi’kmaq fishers, I visited the location where Donald Marshall Junior fished for eels in 1993. It is in Antigonish County, not far from where I live, in the Welnek Reserve area of the Paqt’nkek Mi’kmaw Nation, just behind St. Anne’s Church, in Church Cove on Pomquet Harbour.
Also in preparation, I was reading through The Inconvenient Indian, Thomas King’s best seller. The book starts off with a simple poem by a well-known Mi’kmaq poet, the late Rita Joe, which goes like this:
I am the Indian
And the burden
Lies yet with me.
Colleagues, with Motion No. 40, we are being asked to acknowledge that the burden, the load, the weight that Mi’kmaq fishermen and fisherwomen, their community leaders, our Mi’kmaq parliamentary colleagues and the whole Mi’kmaq Nation is carrying right now, in this time of crisis in Nova Scotia, is not theirs alone to bear.
That burden is all of ours. Canadians are by virtue of citizenship, treaty people, and with that we have the benefit of many rights as well as considerable responsibilities, including the responsibility to learn and know about the treaties, the responsibility to learn about and understand the situation and aspirations of our treaty partners. There is a responsibility to abide by our commitments under the treaties and a responsibility to follow the lead of our Indigenous neighbours as they articulate what is best for them.
As senators, we have responsibilities in legislating, investigating issues of national importance and representing our regions, provinces and territories. In particular, we must represent the rights and interests of those who may be overlooked or at a disadvantage, such as seniors, children, youth, prisoners, veterans, people living in poverty, people with disabilities, immigrants, rural populations and, very importantly, First Nations, Métis and Inuit peoples.
Senators from Nova Scotia have a responsibility to represent the interests of the 1 million people who call our province home. This includes the fast-growing Mi’kmaq population living in the 13 Mi’kmaq communities, as well as those living in other parts of our province. For this reason, I feel compelled and I’m also honoured to stand beside Senator Francis and Senator Christmas in supporting Motion 40.
On October 16, Nova Scotia Senators Bernard, Cordy, Deacon, Kutcher, Mercer and I issued a public statement condemning the violence targeting Mi’kmaq fishers in St. Mary’s Bay. Many of our Senate colleagues across the country share our concerns, as is evidenced by their participation in this debate. In that statement, we said:
As senators representing the Province of Nova Scotia, we, in the strongest terms possible, condemn and decry the escalating violence that is currently being directed at Mi’kmaq fishers. Regardless of whatever concerns individuals or groups may have, there can be no justification for the vigilantism and blatant racism that is now being witnessed.
We therefore call upon the Royal Canadian Mounted Police to rapidly and effectively uphold their responsibility to restore peace and order. . . . ensuring that the shameful, violent actions that were allowed to take their course over the past weeks will not be tolerated and perpetrators will be held accountable . . . .
We hereby request the Government of Canada to move rapidly, respectfully and appropriately to properly address the very legitimate concerns of the Mi’kmaq Nations that underlie this conflict.
In order to understand those legitimate concerns regarding Mi’kmaq rights that underlie this conflict, I have looked into the pertinent treaties, constitutional protections and Supreme Court rulings, as well as relevant international agreements our country has signed onto.
The Peace and Friendship Treaty signed by the British with the Mi’kmaq, Maliseet and Passamaquoddy peoples brought an end to a three-year-long war between New England and the Indigenous communities in the Atlantic region. The British wanted to harmonize relationships with the Indigenous people and also wanted to have them switch alliances with the French.
The Indigenous groups were concerned that the New England colonies were going to expand northward, and they also wanted to prevent the further aggressive push from New England fishermen into the coastal waters off of Nova Scotia. Yes, these fisheries disputes have a long and complicated history.
Unlike treaties signed in some other parts of Canada, the Peace and Friendship Treaties did not involve First Nations surrendering rights to the lands and resources they had traditionally used and occupied. The actual Peace and Friendship Treaty of 1752 reads:
It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting & Fishing as usual: and that if they shall think a Truckhouse needful at the River Chibenaccadie or any other place of their resort, they shall have the same built and proper Merchandize lodged therein, to be Exchanged for what the Indians shall have to dispose of, and that in the mean time the said Indians shall have free liberty to bring for Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage.
So that was the promise of the British to the Indigenous peoples, and that was the treaty that was upheld by the Supreme Court of Canada in its Marshall decision in 1999.
The Peace and Friendship Treaty of 1760 set out the promises of the Atlantic region Indigenous groups to the British. That document reads, in part:
And I do promise for myself and my tribe that I nor they shall not molest any of His Majesty’s subjects or their dependents, in their settlements already made or to be hereafter made or in carrying on their Commerce or in any thing whatever within the Province of His said Majesty or elsewhere. . . .
The Constitution Act of 1867 assigned to Parliament legislative jurisdiction over Indians and lands reserved for Indians. In the redrafted and repatriated Constitution of 1982, section 35 states:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
This powerful rights-affirming section of the Canadian Constitution is complemented by Canada’s participation in the United Nations Declaration on the Rights of Indigenous Peoples. According to Article 32 of UNDRIP:
Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
And Article 37 of UNDRIP states that:
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
In September 2015, Canada and 192 United Nations member states adopted the 2030 Agenda for Sustainable Development. Agenda 2030, with its 17 Sustainable Development Goals, is a global call to action to end poverty, protect the planet and ensure all people everywhere, including in Canada, enjoy peace and prosperity by 2030.
Colleagues, Senator Francis’ Motion 40 is about exactly that: Our responsibility as a nation to do everything within our power to ensure Mi’kmaq people and their neighbours have their rights to livelihood, opportunities and protections of person and property respected in order to ensure that they and their communities will ultimately enjoy peace and prosperity.
Honourable colleagues, with the stated pursuit of equality for everyone in Agenda 2030 and its “furthest behind first” credo, the ultimate litmus test for the success of Agenda 2030 will be the outcomes for Indigenous peoples.
So with that background, let’s have a brief look at Nova Scotia’s lobster conflicts. Suffice it to say there have been conflicts in our region over this highly valued commodity for centuries, and many have had absolutely nothing to do with the Mi’kmaq fishers. These conflicts have flared and smouldered off and on, including since the 1999 Marshall decision.
Because Motion 40 is about upholding the rights to a livelihood through the fishery and the protection of First Nation fishers’ safety, let’s just have a quick look at the situation through the lens of three generations of the Marshall family, as was portrayed in the October 2 Maclean’s magazine article by Stephen Maher. I quote from that article:
When Michael Sack, chief of Nova Scotia’s Sipekne’katik First Nation, handed out Mi’kmaq lobster licences to fishers on Sept. 17, the first tags went to Randy Sack.
Sack’s dad was Donald Marshall Jr. . . . .
Sack is now engaged in the same cause that his father took up — a fight for the right to fish . . . .
After he got his tags, Sack and his fellow Mi’kmaq fishers went out on St. Marys Bay, where they were greeted by non‑Indigenous fishers who were determined to stop them. . . .
The fishery was launched on the twenty-first anniversary of the day that Sack’s father won the landmark fishing rights case at the Supreme Court of Canada.
In 1993, Donald Marshall Jr. was fishing for eels in Pomquet Harbour with his then spouse, my friend and former colleague Dr. Jane McMillan, when they were confronted by Department of Fisheries officers. It took six years to prove that Junior was right in his assertion that he didn’t need a licence because he had the 1752 treaty right to fish.
Young Randy’s participation in the lobster fishery is exemplary of a multi-generational struggle for treaty rights. In 1986, Randy’s grandfather — Junior’s father — Donald Marshall Sr., then Grand Chief of the Mi’kmaq, proclaimed October 1 as Treaty Day, which commemorates the key role of the treaties in the relationship between Nova Scotia Mi’kmaq and the Crown.
Nova Scotia’s lobster fishery was worth $771 million in 2018. Having a meaningful slice of the lucrative fisheries pie is an understandable ambition of the Mi’kmaq, whether it be through the moderate livelihood fishery; the communal, commercial fishery, which was significantly expanded after the Marshall decision; or through participation in the offshore fishery through the recently announced purchase of Clearwater Seafoods by a coalition of seven Mi’kmaq communities in partnership with Premium Brands.
This current Mi’kmaq right-to-fish-and-sell situation is very much related to the bigger picture of Indigenous sovereignty, self-determination and self-reliance. In Nova Scotia, we have seen visionary Mi’kmaq leadership and phenomenal advances in the areas of education, culture, water, energy, child and family services as well as economic development.
Now, as I move towards my concluding words of support for Motion No. 40, and as each of us examines our duty to find ways to transition from this crisis in a peaceful and fair way, I believe that we have an opportunity now both to be and do better as treaty people. The Truth and Reconciliation Commission’s Call to Action No. 45 subsection iii calls on us to:
Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future.
This is critical for reconciliation, and this is absolutely critical for the future of our nations.
Colleagues, as we join our voices to those of our Mi’kmaq colleagues, we are acknowledging that the burden that poet Rita Joe spoke of is not and should not lie solely with them. The burden — and at the same time the opportunity — to create a better future where all could live in peace, friendship and prosperity is our shared work.
Honourable colleagues, let’s pass Motion No. 40, and let’s get on with our urgent work. Wela’lioq, thank you.
Honourable senators, I understand the technical difficulties have been resolved for Senator Kutcher, so we will return to Senator Kutcher for the balance of his time.
I’m going to pick up where Senator Coyle left off and focus on the importance of developing relationships based on a deep understanding and a fulsome respect nation to nation, person to person.
Without a new common understanding of who we are, it will be very difficult for us to get to where we need to be. I for one am pleased to see some movement in this direction with discussions now occurring amongst various parties involved in this conflict aimed not just at solving the conflict, but at developing better understanding of the cultural, treaty, constitutional and legal factors involved; discussions with the goal of creating a climate for negotiation that extends beyond the disagreements over the inshore fishery to an educated and respectful consideration of rights.
In my opinion, this hopefully could lead to a better human connection, person to person, community to community and nation to nation, the kind of human connection that must become the foundation of the solution to this crisis but also one on which the more promising steps for reconciliation can be built.
Common ground must be found and recognized. To move forward, all parties need to agree that this renewable inshore fisheries resource must be equitably shared in respecting and upholding the Mi’kmaq Nation’s rights. At the same time, it’s essential that the inshore fisheries resource is sustainably managed by all those involved. Finally, the health of our oceans must be protected and improved. This need is fundamental to any and all sustainable fisheries.
Honourable senators, the issues that this crisis has identified are many and challenging. Their complexities should not, however, become deterrents to everyone working hard to address them. Indeed, there exists no other time than now for the difficult, and at times painful, yet respectful discussions that are necessary for resolution of this conflict to be realized and the wider goals of reconciliation to be advanced.
There is an opportunity in this crisis to chart a course that will result in the development of a different way of being together, an opportunity to bring truth and understanding to addressing existing differences, and by so doing, further the evolution of a society that is enriched by differences and not torn apart by them; a society that can exchange the fractures that divide with a glue that binds together; a society in which all recognize that it is only when we create fertile soil based on our commonalities that we produce the best that can be grown.
Honourable senators, I urge us to unanimously support the motion before us. This is a moment that our chamber can seize to demonstrate to all Canadians that we recognize the need to exchange our fractured selves for a wholesome self, that we realize that ties that bind us are more important than those that would cast us asunder. And we, honourable colleagues, can be a model for that by showing that we all stand together.
To support this motion would signal to all Canadians that genuine reconciliation is necessary and will be possible and will be an expression of the better angels of our nature. Thank you.
