NationTalk: Halifax – More than 23 years after a Supreme Court of Canada ruling affirmed the treaty fishing rights of certain First Nations, the federal government has failed to fully implement Indigenous rights-based fisheries, according to a new report by the Senate Committee on Fisheries and Oceans.

Peace on the Water: Advancing the Full Implementation of Mi’kmaq, Wolastoqiyik and Peskotomuhkati Rights-Based Fisheries examines the federal government’s response to the Marshall decision and the implementation of the rights of First Nation communities in parts of Atlantic Canada and Quebec to fish in pursuit of a moderate livelihood.

The scope of the study focuses on the 1999 Supreme Court of Canada ruling in R. v. Marshall, which upheld the treaty rights of First Nation communities to fish in pursuit of a “moderate livelihood” by catching and selling fish year-round. This decision affected 35 Mi’kmaq, Wolastoqiyik and Peskotomuhkati First Nations in New Brunswick, Prince Edward Island, Nova Scotia and the Gaspé region of Quebec.

Witnesses told the committee that the failure of consecutive federal governments to fully implement rights-based fisheries has resulted in tension, disagreements and violence between First Nations and non-First Nations fishers in parts of Atlantic Canada and Quebec. The committee also heard several allegations of systemic racism within federal departments and agencies, including Fisheries and Oceans Canada and the Royal Canadian Mounted Police. Witnesses testified how federal authorities have pursued an enforcement approach that has surveyed and criminalized First Nation fishers, yet failed to protect them from acts of intimidation and violence. Further, the committee heard how Fisheries and Oceans Canada prioritizes commercial fisheries over rights-based fisheries.

The study makes 10 recommendations on how the federal government can fully implement Indigenous rights-based fisheries, including reallocating commercial traps to the Mi’kmaq, Wolastoqiyik and Peskotomuhkati, developing tools to educate the public about rights-based fisheries, and integrating Indigenous laws, principles and knowledge with scientific data into decision-making processes. The report concludes that there is no “one-size-fits-all” approach to implementing Indigenous rights-based fisheries and that any solutions must be reached in collaboration with First Nation communities.

Quick Facts

• Fisheries across Canada fall into two categories. Rights-based fisheries are based on Aboriginal or treaty rights set out in historic and modern treaties between the Crown and Indigenous peoples. Privilege-based fisheries, like commercial or recreational fisheries, are often fee-based and subject to limitations through licencing and regulation.
• Writing for the majority, Supreme Court Justice Ian Binnie found that the Peace and Friendship treaties negotiated between the British Crown and First Nation communities in 1760 and 1761 “affirm the right of the Mi’kmaq people to continue to provide for their own sustenance by taking the products of their hunting, fishing and other gathering activities and trading for what in 1760 was termed ‘necessaries’.”

Quotes

“We have heard loud and clear from First Nation witnesses that there is no one-size-fits-all approach to implementing Indigenous rights-based fisheries. It is crucial that the federal government immediately take steps to co-manage rights-based fisheries with First Nations across the country.”

– Senator Fabian Manning, Chair of the committee

“It has been 23 long years since the Marshall ruling. The Mi’kmaq, Wolastoqiyik and Peskotomuhkati communities are still waiting for their fishing rights to be fully implemented. They should not have to wait any longer.”

– Senator Bev Busson, Deputy Chair of the committee

“We need to focus on a reconciliation approach to distributing fishing licences instead of a ‘buyback’ approach. The exercise of Indigenous rights cannot, and should not, be contingent on the federal government’s ability to buy back licences from commercial fishers.”

– Senator Brian Francis, member of the Subcommittee on Agenda and Procedure