Legal Brief for November, 2020

First Nations Fishing Rights

There has been a lot of news lately coming from Nova Scotia about the lobster fishing industry, and the moves by several First Nations to establish their own lobster fishing businesses.  Their efforts have drawn criticism from non-native lobster fishers because the First Nations are conducting their harvesting outside of the commercial lobster fishing season as mandated by the Government of Canada.  The non-native fishers are voicing concerns about the danger of over-fishing, and depletion of lobster stocks for future years.  The First Nations are responding by indicating that they are simply trying to utilize their treaty rights granted to them hundreds of years ago, and as reinforced in recent years by the Supreme Court of Canada.  I will leave it to the experts to debate about the extent of the lobster numbers and whether conservation regulations are needed to be observed by both indigenous and non-native lobster fishers.  What I do want to expand upon a bit in this brief is the historical and legal basis for the claims of the First Nations.

In central Alberta we are familiar with our area being part of Treaty 6 between the Government of Canada and several First Nations that was signed in 1876.  That Treaty granted the First Nations the right to continue their traditional pursuits of hunting and trapping throughout the entirety of the area of Treaty 6.  In Nova Scotia the Mi'kmaw (also known as Mi'kmaq) First Nations were party to treaties with the British Crown in the 1760's known as the Peace and Friendship Treaties.  Those treaties guaranteed the Mi'kmaw peoples the right to hunt, fish, farm land and earn a reasonable living without British interference.  The legal status of those provisions were then reinforced by the Royal Proclamation of 1763 issued by George III, which among other things set out a series of rules for the relationship between the Crown and the First Nations in the area of British North America outside of the 13 colonies that eventually started the American Revolution.

Fast forward to more modern times and in 1982 as part of the repatriation of the Canadian Constitution from Great Britain there were two sections put into the Constitution Act which specifically recognized the validity of First Nations rights arising from those long ago treaties.

Section 25 stated that:

        "25 The guarantee in this Charter of certain rights and freedoms shall not be construed as to abrogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired."

Section 35 stated that:

        "35 The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed."

The scope of these types of treaty rights were reviewed and clarified by the Supreme Court of Canada in the 1999 decision in R.v. Marshall, which involved a charge that the accused, Donald Marshall, a member of the Mi'kmaw First Nation in Nova Scotia had been trapping eels out of season.  The Court dismissed the charge and ruled that Mr. Marshall had the right to earn a "moderate livelihood" from the trapping of eels regardless of the time of year.  A follow up ruling from the Court in "Marshall 2" did however state that the Mi'kmaw rights could be subject to conservation regulations enacted by the Government, provided that there was consultation with the First Nations and that the regulations were justifiable.

Unfortunately however over the past 21 years there has been little effort made by the Government, or the First Nations for that matter, to come to terms to clarify what constitutes a "moderate livelihood".  As a result we have on our hands in Nova Scotia today what has quickly become an ugly mess of protests, arson, intimidation and violence.

From my perspective, there can be no doubting the rights of the First Nations in Nova Scotia to potentially conduct their lobster fishery outside of the bounds of the government mandated harvesting season.  The critical issue for all sides is to examine the claims that limits are needed for the purposes of conservation, and what would constitute a "moderate livelihood" as opposed to an exploitation of the resource to the detriment of other members of society.

For the sake of all involved I hope that the parties can peacefully negotiate a positive resolution to this situation rather than let it fester for years to come.