The Law re: Indigenous Peoples and Commercial Fisheries

            Indigenous Peoples in Canada are referred to in the Constitution Act, 1982 as Aboriginal Peoples, and further defined as the “Indian [First Nations], Inuit and Métis peoples.”[i] From time immemorial, Indigenous Nations across the country have been fishing for a multitude of purposes including for food, social, ceremonial, and commercial reasons. The arrival of European settlers and imposition of colonial law has had a serious impact on the ability of Indigenous Nations to continue fishing as they have for countless generations, especially in the commercial context. Today, Indigenous commercial fisheries are a hot topic, frequently appearing in national news and inciting tensions that stretch from coast to coast. Many Canadians, Indigenous and non-Indigenous alike, hold very strong feelings on the matter, but what is the current state of the law? Section 35 of the Constitution Act, 1982 held that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”[ii] How this impacted Indigenous Nations’ rights to fish is a question courts have been dealing with since 1990. Indigenous litigants have argued their constitutionally entrenched Aboriginal and treaty rights to fish commercially, as their nations have since before the arrival of settlers, to mixed success. The Nuu-Chah-Nulth First Nations on the West Coast and the Mi’kmaq First Nations on the East Coast have won court victories to some degree of commercial fishing by establishing their Aboriginal and treaty rights. However, implementation has proven another challenge altogether. The Canadian government and its Department of Oceans and Fisheries (“the DFO”) have held off from meaningfully collaborating with the Indigenous Nations to establish the court-won fisheries. The message is clear: in some circumstances Indigenous commercial fisheries are legal in theory, but in all circumstances they are restricted from coming into effect.

Aboriginal Rights

            After the Constitution Act, 1982 was enacted, the impact of section 35 was left unclear. In 1990 the Supreme Court of Canada (“the SCC”) first addressed the reference to Aboriginal and treaty rights in R. v. Sparrow, where the Court found an Aboriginal right to fish for food, social, and ceremonial purposes.[iii] Six years later, the SCC would consider commercial fishing in a trio of Aboriginal rights cases: R. v. Van der Peet, R. v. N.T.C. Smokehouse Ltd., and R. v. Gladstone.

            In Van der Peet, the SCC established the legal test for finding an Aboriginal right: the Indigenous claimant must prove the activity sought as a right to be “an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group”[iv] that “existed in North America prior to contact with the Europeans.”[v] In that particular case, the Indigenous claimant was found not to have an Aboriginal right to exchange fish for payment.[vi] In N.T.C. Smokehouse Ltd., the SCC found a right to sell, trade, and barter fish for livelihood, support, and sustenance, but not for a commercial purpose.[vii] In Gladstone, a commercial right to fish was first recognized, but it was limited to herring spawn on kelp.[viii] In 2011 the SCC considered a claim for a modern commercial fishery in Lax Kw’alaams Indian Band v. Canada (Attorney General), but decided there was no such right in that case along the strict Van der Peet test.[ix] In summary, the SCC held that Aboriginal rights already existed at common law before the Constitution Act, 1982,[x] but now to have an Aboriginal right upheld, an Indigenous claimant would have to pass Van der Peet’s integral and distinctive test, which has been heavily criticized for its high evidentiary burden, freezing of rights, and stereotyping of Indigenous people, among other flaws. The SCC also held that the British Crown or Canadian government could have unilaterally extinguished Aboriginal rights before 1982 with clear and plain intent, and, after 1982, can do so with consent and can infringe on Aboriginal rights without consent if it passes a legal test of justification.[xi]

The Ahousaht Decision

            In 2018, the Supreme Court of British Columbia (“the BCSC”) found the most significant Aboriginal right of commercial fishing in Ahousaht Indian Band v. Canada (Attorney General), a case involving five Nuu-Chah-Nulth First Nations on the west coast of Vancouver Island, BC. These Nuu-Chah-Nulth First Nations successfully established their right to a commercial fishery taking priority over non-Indigenous commercial fisheries and sports fishing, albeit they would be limited to “a small-scale artisanal, local, multi-species fishery […] conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.”[xii] Further, their fishery would not be unrestricted, exclusive, or amount to being industrial.[xiii] Regardless, this result was the first of its scope and hard-fought, costing millions of dollars over a decade of litigation in various levels of court.[xiv]

            Unfortunately, the five Nuu-Chah-Nulth First Nations have struggled to feel their success. The Indigenous claimants in Ahousaht must work alongside the Canadian government and the DFO to create a multi-species fisheries management plan.[xv] In 2020 a spokesperson for the Ahousaht Nuu-Chah-Nulth First Nation described the Ahousaht decision as feeling “hollow,” [xvi] as the 2020/2021 Management Plan was created without any consultation with them, and allowed for as little as 1.5 Chinook salmon annually per person across their communities.[xvii] Furthermore, surplus allocation of salmon arising during the COVID-19 pandemic was granted to non-Indigenous fisherfolk and not the Nuu-Chah-Nulth fishery.[xviii] The Ahousaht First Nation spokesperson accused the Canadian government and the DFO of systemic racism in blocking their fishery.[xix] The Ahousaht example is illustrative of how, despite following the arduous procedure set by Canadian caselaw to establish an Aboriginal right to commercial fishing, effective implementation of that right is a whole other battle to fight, one in which there is no clear path to victory.

Treaty Rights

            Treaty rights arise out of treaties signed between the British Crown, and later the Canadian government, and various Indigenous nations across the country. These treaties can be divided into three separate eras: pre-Confederation, post-Confederation, and modern treaties.[xx] The most famous SCC decision on treaty rights in regard to commercial fishing came in 1999 with R. v. Marshall, or Marshall I, and its follow-up case, frequently referred to as Marshall II.

The Marshall Decisions

            In Marshall I the SCC examined a Treaty of Peace and Friendship negotiated between the British Crown and the Mi’kmaq First Nations in Halifax, Nova Scotia in 1860.[xxi] This treaty was one of a series formed for the purposes of reconciliation and mutual advantage of the parties.[xxii] A majority of the SCC recognized a treaty right within the meaning of section 35, which they interpreted as allowing the Mi’kmaq to secure necessaries, which in contemporary terms would be equivalent to a moderate livelihood covering day-to-day needs (i.e., a sustenance lifestyle), but would not extend so far as the open-ended accumulation of wealth.[xxiii] The treaty right could be regulated within such proper purposes as conservation.[xxiv] To many Indigenous Peoples, this recognition of a historic treaty right was a triumph, but not all Canadians agreed. The immediate result of the decision was chaos. The DFO did not take quick action to regulate the moderate livelihood fishery, resulting in Mi’kmaq First Nations going out on the waters to exercise their treaty right, which led to non-Indigenous fisherfolk taking action into their own hands and engaging in violent clashes with Mi’kmaq fishers across Nova Scotia and New Brunswick.[xxv] Two months after Marshall I, the non-Indigenous West Nova Fishermen’s Coalition applied for a rehearing of the case and a stay of the judgment. The SCC dismissed this application, but made the surprising and unprecedented move of clarifying the majority judgment in Marshall I.[xxvi]

            In Marshall II, the SCC emphasized the interests competing with a Mi’kmaq fishery, namely, resource conservation and management, and stressed the importance of regulation that should include consultation and negotiation of a modern agreement with the First Nations.[xxvii] Marshall II received mixed response and to some seemed to scale back the force of Marshall I. The Canadian government and the DFO have since attempted to respond to the Marshall decisions by introducing the successive Marshall Response Initiative, Atlantic Integrated Commercial Fisheries Initiative, and Rights Reconciliation Agreements.[xxviii] However, some Indigenous people have criticized these initiatives as not being reflective of the moderate livelihood fishery as guaranteed by Marshall I.[xxix]

            In September 2020, the Sipekne’katik, a Mi’kmaq First Nation, launched its own moderate livelihood fishery in Nova Scotia on the 21st anniversary of the Marshall I decision. The Sipekne’katik First Nation, frustrated at the Canadian government and the DFO for failing to negotiate an Indigenous fishery agreement they felt lived up to the Marshall decisions, decided to proceed with exercising their treaty rights and began fishing for lobster outside the regular season to earn a moderate livelihood.[xxx] The result was an outpouring of escalating protest and violence by non-Indigenous fisherfolk in the region. Mid-October 2020 saw the culmination of these tensions, with a mob storming two Mi’kmaq lobster pounds, resulting in one being burnt down.[xxxi]

            Despite this, the Sipekne’katik First Nation have remained resilient. In February 2021 they sued the Attorney General of Nova Scotia for restrictions placed on the purchase of their seafood.[xxxii] In March 2021 the DFO announced an edict mandating that the Mi’kmaq First Nations operate under federal fishing requirements, but this has been rejected; the Sipekne’katik First Nation have asserted that they will maintain their own fishery, fishing season, and management plan.[xxxiii] The DFO has responded that it will enforce the federal requirements, seize equipment, and make arrests for any violations on the water.[xxxiv] This situation is ongoing and updating day-by-day.

Conclusion

            While the Constitution Act, 1982’s section 35 recognizes and affirms Aboriginal and treaty rights, which Canadian case law has confirmed can be extended to commercial fisheries, arguing these rights in court is incredibly costly and time-consuming, and often unsuccessful. While some Indigenous Nations have won legal victories using these tools, it is clear there is a lack of impact in effect. Five Nuu-Chah-Nulth First Nations on the west coast of Canada may have proven an Aboriginal right to a limited multi-species fishery, but they are restricted to a management plan that the DFO sets for them in a process they claim involves no consultation. Similarly, the Mi’kmaq First Nations on the east coast of Canada established a historic treaty right to a moderate livelihood fishery, but lack of meaningful negotiations with the Canadian government and the DFO to implement it, combined with the real threat of violent backlash, have prevented them from being able to actually exercise their treaty rights. So how is it possible for Indigenous Nations to implement a commercial fishery when litigation to establish Aboriginal and treaty rights proves ineffective in outcome? This is a question that Indigenous Nations are struggling to answer. However, one thing is obvious: Indigenous Peoples such as the Nuu-Chah-Nulth and Mi’kmaq will continue to make their voices heard and push tactics until their constitutional rights to a fishery are put into practice and they will not settle for anything less.

Endnotes

[i] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at section 35(2).

[ii] Ibid, at section 35(1).

[iii] R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] S.C.J. No. 49 at paragraph 45.

[iv] R. v. Van der Peet, [1996] 2 S.C.R. 507, [1996] S.C.J. No. 77 at paragraph 46.

[v] Ibid at paragraph 44.

[vi] Ibid at paragraphs 93, 94.

[vii] R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, [1996] S.C.J. No. 78 at paragraph 80.

[viii] R v. Gladstone, [1996] 2 S.C.R. 723, [1996] S.C.J. No. 79 at paragraph 28.

[ix] Lax Kw’alaams Indian Band v. Canada (Attorney General) 2011 SCC 56 at paragraph 73.

[x] Supra note iv at paragraph 28.

[xi] Supra note iii, at paragraphs 23, 37, 70, 71 and 75.

[xii] Ahousaht Indian Band v. Canada (Attorney General) 2018 BCSC 633 at paragraph 441.

[xiii] Ibid at paragraph 414.

[xiv] Vanessa Minke-Martin, The Long, Expensive Fight for First Nations’ Fishing Rights (October 2020), online:

Hakai Magazine <https://www.hakaimagazine.com/news/the-long-expensive-fight-for-first-nations-fishing-rights/>

[xv] Supra para xii at paragraph 12.

[xvi] Paul Binny, Five Vancouver Island First Nations call out Canada for ‘discriminatory’ food fish practices (August 2020), online: Alberni Valley News <https://www.albernivalleynews.com/news/five-vancouver-island-first-nations-call-out-canada-for-discriminatory-food-fish-practices/>

[xvii] Teresa Wright, First Nations say salmon allocation shows systemic racism at DFO (August 2020), online: CBC < https://www.cbc.ca/news/canada/british-columbia/bc-first-nations-dfo-systemic-racism-1.5689277>.

[xviii] Ibid.

[xix] Ibid.

[xx] The Constitutional Law Group, Canadian Constitutional Law, 5th ed (Toronto: Edmond Montgomery Publications Ltd., 2017) at 601.

[xxi] R. v. Marshall, [1999] 3 S.C.R. 456, [1999] S.C.J. No. 55 at paragraph 3.

[xxii] Ibid at paragraph 3.

[xxiii] Ibid, at paragraphs 4, 6 and 59.

[xxiv] Ibid, at paragraphs 58, 61.

[xxv] Supra paragraph xx at 613.

[xxvi] Supra paragraph xx at 613.

[xxvii] R v. Marshall, [1999] 3 S.C.R. 533, [1999] S.C.J. No. 66 at paragraph 22.

[xxviii] Our response to the Marshall decisions (March 2021), online: Fisheries and Oceans Canada <https://www.dfo-mpo.gc.ca/publications/fisheries-peches/marshall-1999-eng.html>.

[xxix] Brett Forester, How the feds’ moderate livelihood fishing policy fell apart (March 2021), online: APTN National News <https://www.aptnnews.ca/national-news/how-the-feds-moderate-livelihood-fishing-policy-fell-apart/>.

[xxx] Alex Cook, Mi’kmaw fisherman launch self-regulated fishery in Saulnierville (September 2020), online: CBC <https://www.cbc.ca/news/canada/nova-scotia/mikmaw-fishermen-self-regulated-fishery-lower-saulnierville-1.5727920>.

[xxxi] Michael MacDonald, Nova Scotia Mi’kmaq chief casts doubt on Ottawa’s bid to quell violence over lobster (October 2020), online: CTV News <https://www.ctvnews.ca/canada/nova-scotia-mi-kmaq-chief-casts-doubt-on-ottawa-s-bid-to-quell-violence-over-lobster-1.5160313>.

[xxxii] Nic Meloney, Sipekne’katik First Nation sues Nova Scotia over restrictions on buying Mi’kmaw lobster (February 2021), online: CBC <https://www.cbc.ca/news/indigenous/sipekne-katik-sues-nova-scotia-lobster-sales-1.5898910>.

[xxxiii] Angel Moore, ‘We’re going to establish our own fishery’: Sipekne’katik First Nation rejects DFO moderate livelihood plan (March 2021), online: APTN National News <https://www.aptnnews.ca/national-news/were-going-to-establish-our-own-fishery-sipeknekatik-first-nation-rejects-dfo-moderate-livelihood-plan/>.

[xxxiv] CBC Radio, Fisheries officers will enforce the rules if Mi’kmaq fish out of season, says minister (March 2021), online: CBC <https://www.cbc.ca/radio/asithappens/as-it-happens-the-tuesday-edition-1.5942485/fisheries-officers-will-enforce-the-rules-if-mi-kmaq-fish-out-of-season-says-minister-1.5942494>.