The Long, Expensive Fight for First Nations’ Fishing Rights
The controversy surrounding the Mi’kmaw moderate livelihood fishery suggests a lack of understanding of First Nations’ fishing rights. So what are those rights, exactly?
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Before dawn on October 17, a lobster pound in Middle West Pubnico, Nova Scotia, burned to the ground in what police are calling a suspicious fire. The pound, where Sipekne’katik fishers were storing the lobsters they had caught in the First Nation’s controversial moderate livelihood fishery, was one of two facilities vandalized by hundreds of non-Indigenous protestors four days earlier. During a riot at the second lobster pound, 120 kilometers away in New Edinburgh, Nova Scotia, a van was torched.
The RCMP charged one man with arson for the van fire, and another man for assaulting Sipekne’katik chief Michael Sack outside the New Edinburgh facility on the day following the riot. The fire in Middle West Pubnico is under investigation, and no charges have been laid.
The Sipekne’katik fishery has faced stiff resistance—most visibly from commercial lobster fishers—since it opened on September 17, but the recent attacks mark an escalation in the violence. Chief Sack has called for military intervention to protect the Mi’kmaq, who are exercising their right to fish. That right stems from a 1999 ruling by the Supreme Court of Canada upholding the rights of Mi’kmaq, Wolastoqiyik, and Peskotomuhkati nations to catch and sell fish year-round to earn a moderate livelihood.
Ignorance about Mi’kmaw fishing rights seems to be fueling widespread debate on the topic, as well as the opposition itself. But what are the rights of the Mi’kmaq and other First Nations in Canada?
In 1982, Canada recognized the Aboriginal and treaty rights of First Nations, alongside those of Inuit and Métis peoples, in section 35 of the Constitution of Canada. Broadly, Aboriginal rights are the inherent rights to land, resources, and activities of the distinct societies that predate Canadian sovereignty; while treaty rights are those guaranteed in contracts negotiated between some Indigenous communities and the Crown.
However, the constitution stopped short of actually defining those rights, or how they should be implemented. That would come later, playing out in the courts and through lengthy negotiations between First Nations and the government.
Beginning in 1990, a series of landmark cases addressed what these Aboriginal and treaty rights actually entail.
Despite millennia, in some cases, of Indigenous peoples fishing and managing coastal ecosystems prior to European colonization, it is these legal decisions—contested over the past 30 years—that largely define, uphold, and limit First Nations’ access to fish.
But the entitlements each First Nation fights to prove in court are not automatically recognized for Indigenous peoples broadly. As a result, Canada’s legal approach has led to a patchwork of rights that can vary wildly between Indigenous communities.
R. v. Sparrow (1990)
When the Sparrow case reached the Supreme Court of Canada in May 1990, it was on the tail of a century of fisheries conflict, says Doug Harris, a legal historian at the University of British Columbia. Since the 1870s, Canada had asserted its authority on the west coast, reallocating fish to industry and squeezing out Indigenous communities.
In 1984, Ronald Sparrow, a Musqueam man from British Columbia found himself on the wrong side of the law while fishing for chinook salmon in his traditional territory near the mouth of the Fraser River. Federal fisheries officers charged him for using a net longer than permitted by his fishing license.
At the time, the government allowed Indigenous peoples to fish only for food. The food fishery, says Harris, was like the reserve system. The Crown took “what was once a much larger traditional territory or resource base and set this small portion of it aside.”
Before the Supreme Court, Sparrow argued that the restrictions imposed by his fishing license were inconsistent with the Musqueam’s inherent right to fish on their lands according to their traditional practices. It was the first time this Aboriginal right—as outlined in the Constitution’s new section 35—had ever been raised as a defense to a criminal charge, says John Borrows, who holds the Canada Research Chair in Indigenous Law at the University of Victoria in British Columbia. “The Crown said: Well, prove it.”
Ultimately, Sparrow and his lawyers proved that Canada’s fisheries restrictions had not extinguished the Musqueam’s Aboriginal right to fish. For Aboriginal fishing rights, the court said that Fisheries and Oceans Canada (DFO) can only infringe on this right for conservation purposes. This effectively established First Nations’ food fisheries as the second-highest priority—above commercial and recreational fisheries.
The Supreme Court also devised a precedent-setting test to determine if a government activity infringes on an Aboriginal right—by preventing a nation from exercising their right, or imposing undue hardship—and if that infringement is justified. The test set a requirement for governments to consult and compensate First Nations for infringing on these rights.
But what the case left unanswered, says Harris, was the question of whether Indigenous peoples could fish commercially—a question the Supreme Court would return to in 1996.
R. v. Van der Peet (1996)
A hundred kilometers up the Fraser River from where Sparrow had been fishing, Dorothy Van der Peet from the Stó:lō Nation sold 10 sockeye salmon to a non-Indigenous woman for CAN $50 in 1987. She was charged for selling fish caught with a food license.
When her case went to the Supreme Court of Canada in 1996, Van der Peet argued that the provincial regulations infringed on her Aboriginal right to sell fish.
The court, however, decided that to claim an activity—selling fish—as an Aboriginal right, Van der Peet would have to prove that it was an integral part of a distinct Stó:lō culture prior to the arrival of Europeans. Van der Peet lost her appeal when the court ruled that the Stó:lō failed that test.
Crucially, the court dismissed the claim that the large quantities of salmon the Stó:lō traded to the Hudson’s Bay Company at Fort Langley, British Columbia, were evidence of a commercial fishery. The court did not accept this trading as a traditional cultural practice, but as a response to the arrival of the Hudson’s Bay Company.
But by basing a nation’s Aboriginal rights on economic activities prior to the time of European contact, the ruling created an artificial cut off, says Borrows. The so-called Van der Peet test “ignores the most important thing about culture, which is that it changes in response to new circumstances.”
The Van der Peet test became the threshold that First Nations without treaties had to clear in subsequent court cases to establish a right to fish commercially.
But the test, says Alan Hanna, a law professor who specializes in Indigenous and Aboriginal law at the University of Victoria, is a difficult standard of evidence to meet. Each nation must translate concepts from their Indigenous worldview and cultural practices into legal terms. “What constitutes having the ability to accumulate wealth? What does wealth mean? How do you prove that?” he says.
Unlike food fishing, which the Sparrow decision had recognized as the highest priority, in Van der Peet the court decided that the government could limit a First Nation’s commercial fishing activity to allocate catch to non-Indigenous people.
R. v. Gladstone (1996)
On the same day it ruled on Van der Peet, the Supreme Court of Canada heard the Gladstone case.
In 1988, Heiltsuk brothers Donald and William Gladstone were charged for attempting to sell 1,900 kilograms of herring spawn on kelp caught with a license permitting the sale of just 230 kilograms.
In their defense, the Gladstone brothers proved that trading herring roe collected on submerged kelp had been integral to Heiltsuk culture prior to colonization, thus passing the Van der Peet test. This was the first recognition of an Indigenous right to a commercial fishery in Canada—and that right belonged to the Heiltsuk alone. While a victory for the Heiltsuk, Harris says the outcome demonstrated the difficulty of proving these rights.
“After Gladstone, it seemed as though [each] First Nation would have to go species by species. The Heiltsuk had established a spawn-on-kelp commercial fishery. But what about salmon? What about halibut? What about eulachon?” Harris says.
R v. Marshall (1999)
The legal definition for a new category of fishing came from the east coast, and hinged not on inherent rights, but on rights secured in treaties.
In 1993, Donald Marshall Jr., a Mi’kmaw man from Membertou, Nova Scotia, was arrested for catching eels with an illegal net out of season, and for selling 210 kilograms without a license. In 1999, Marshall argued in front of the Supreme Court of Canada that his fishing was lawful under the Peace and Friendship Treaties that the Mi’kmaq, Wolastoqiyik, and Peskotomuhkati signed with the British in 1760–61.
The court ruled that Marshall’s small-scale fishing activity, to support his family, fell within his treaty rights. The court interpreted the centuries-old right as equivalent to earning a “moderate livelihood,” a limit intended to avoid competition with non-Indigenous fishers, says Hanna.
The ruling meant that Mi’kmaw fishers can earn enough to meet basic needs, such as clothing and food, Hanna says, but they “wouldn’t have the same ability to fish and accumulate wealth and prosper in the way a Westerner would.”
Though the court upheld the Mi’kmaw right to fish, it left it to DFO and the nations to decide how to implement the treaty rights. Twenty-one years later, the issue has not been fully resolved.
After the Marshall decision, Mi’kmaq from the Esgenoôpetitj First Nation in New Brunswick went lobster fishing. The violent backlash from the commercial lobster industry prompted the Supreme Court to revisit the decision almost before the ink was dry. In Marshall II, the court clarified that DFO could regulate Mi’kmaw fishing for conservation purposes. The updated decision, Borrows says, failed to recognize that the Mi’kmaq have their own laws for regulating a sustainable fisheries harvest.
Since 1999, DFO has spent more than $500-million on licenses and gear for Mi’kmaq and Wolastoqiyik nations to participate in the commercial fishery. While some Mi’kmaq communities have signed agreements with DFO for collectively owned commercial licenses—where fishing profits go to the community rather than to individual fishers—Mi’kmaq nations do not want to relinquish their treaty right to fish for a moderate livelihood.
But earning that livelihood is nearly impossible in Nova Scotia, where provincial regulations ban the sale of fish caught without a commercial license. This gap has played a central role in the ongoing conflict in Nova Scotia, where a lobster pound owner was recently convicted of illegally selling Sipekne’katik-caught lobster, and non-Indigenous commercial fishers opposed to the fishery have taken to targeting alleged buyers.
“The right isn’t just to catch, the right is also to sell,” says Borrows. If the province denies the Mi’kmaq the preferred means of exercising the right, the Crown has to justify the infringement through consultation and accommodation, he says.
Ahousaht Indian Band and Nation v. Canada (2018)
In 2018, five Nuu-chah-nulth nations from western Vancouver Island, British Columbia, became the first Indigenous nations to secure commercial rights to all fish species in their territories. All, that is, except geoduck, because the Supreme Court of British Columbia decided the Nuu-chah-nulth couldn’t have harvested the clams without modern diving technology. (New archaeological evidence suggests otherwise.)
To pass the Van der Peet test, the Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht, and Tla-o-qui-aht drew on detailed evidence to demonstrate how the commercial trade of fish was integral to Nuu-chah-nulth life prior to the arrival of Europeans. In the years since colonization, the court ruled, Canada’s regulations had infringed on those inherent rights.
The Ahousaht case, which took millions of dollars and more than a decade of litigation, demonstrates the colossal effort required for a First Nation to legally establish commercial fishing practices they were forced by government regulations to abandon a century ago. “These are hugely expensive undertakings” for communities with financial priorities like housing, social services, and education, says Harris. “And there’s a real danger that you might lose.”
The BC supreme court decided that the five Nuu-chah-nulth nations have the right to sell fish commercially, and their commercial fisheries have priority over recreational and non-Indigenous commercial fishing. But, the Nuu-chah-nulth’s fisheries cannot be conducted on an industrial scale.
“No one’s quite clear what that means,” says Harris. “Is a commercial fishery [that is] not at an industrial scale one that allows a greater harvest than a fishery to support a moderate livelihood?” he says, drawing a parallel to the Marshall decision’s ambiguous limitation on Mi’kmaw fishing.
Rather than impose these limitations, Harris suggests the courts should define Indigenous fishing rights broadly as the right to catch fish, period. How Indigenous peoples fish, and what they do with the catch, is up to them. That would place the onus fully on the Canadian government to justify infringing on Indigenous peoples’ rights. Ultimately, managing their own fisheries in accordance with Indigenous laws is a crucial concern for all First Nations. Securing that management authority is the next great legal challenge.
Update: In April 2021, the BC Court of Appeal overruled the restrictions limiting the scale of Nuu-chah-nulth commercial fishing rights that the Supreme Court of British Columbia imposed in 2018. The Canadian government did not appeal the ruling.