Marshall decision, political inaction
The Marshall decision has been followed by political inaction
Whatever is in the memorandum of understanding sent by Bernadette Jordan to Michael Sack late Friday will set a precedent that has far-reaching effects on the future of both Atlantic Canada's fishery and federal relationships with First Nations.
The fisheries minister carried out most of the negotiations without having read the Supreme Court of Canada decisions which both coined the term "moderate livelihood" and interpreted what it meant.
She claims to have read it two weeks ago, though her office couldn't confirm last week whether she had read both R vs Marshall and the clarification known as Marshall II.
After announcing the MOU on Sunday, Sipekne'katik Chief Sack said that he had read the decision. He said Marshall didn't give the fisheries minister the authority to regulate and manage his community's fishery.
So what did R vs. Marshall say about the treaty right to a moderate livelihood and what did it direct government to do about it?
“It told them to govern,” said Thomas Isaac.
The Aboriginal rights lawyer has served as British Columbia's chief treaty negotiator, assistant deputy minister responsible for establishing Nunavut and special representative to the minister of Indigenous and Northern Affairs. He also teaches the Marshall decision to law students.
“In 70-plus decisions on Section 35 (of the Constitution) in 30 years, in every one of those cases the courts say ‘government, you've got to put a regulatory regime in place',” said Isaac.
“The court doesn't say the Crown can willy-nilly run roughshod over Aboriginal rights but, and here it is, that doesn't mean government can't govern and regulate for conservation, safety and respecting the needs of economically deprived areas of Canada.”
The court also said government had to justify the treatyright infringement those regulations pose.
In 2010, a mechanism was created by the Assembly of Nova Scotia Mi'kmaw Chiefs, the provincial and federal governments through which the latter could put forth a moderate livelihood framework for consultation. But the feds never did it.
Instead they continued to cut deals with individual First Nations.
“Don't blame the courts. Don't blame the Mi'kmaw and though I don't condone violence, don't blame the nonIndigenous fishers — they have a right to expect a reasonable regulatory regime that allows them to make a living,” said Isaac.
“This is about a culture in government that would rather avoid any conflict at all. Of course, the irony there is by not doing anything on the regulatory regime they fuel the future potential for conflict.”
Isaac calls it “adhockery.” It's a process he worries is being repeated now by the current government.
R VS. SPARROW
Eight years before Donald Marshall sold his 463 pounds of eels, Ronald Sparrow set an 82-metre drift net in British Columbia's Fraser River to catch chinook salmon.
He got arrested because the net was twice as long as his band's licence allowed.
When the case landed before the Supreme Court of Canada six years later (in 1990) the net's length (which Sparrow never disputed) wasn't at issue.
The court found that as the Musqueam First Nation, to which Sparrow belonged, had fished the Fraser River prior to the existence of provincial regulations and because it had never had that right “extinguished” it was therefore protected under Section 35 of Canada's still-young Constitution.
“Historical policy on the part of the Crown can neither extinguish the existing Aboriginal right without clear intention nor, in itself, delineate that right,” read the unanimous R vs. Sparrow decision.
“The nature of government regulations cannot be determinative of the content and scope of an existing Aboriginal right. Government policy can, however, regulate the exercise of that right but such regulation must be in keeping with s. 35(1) (of the Constitution).”
That means existing fisheries regulations didn't pass muster because they didn't allow First Nations members to fish.
The Supreme Court's gavel sent its first waves across Canada's waterways.
In 1990, the Mi'kmaq and Maliseet First Nations of Atlantic Canada were essentially cut off from the water they had relied upon for millennia. They held only a handful of commercial licences either as individuals or as communities.
Armed with R vs. Sparrow, Mi'kmaw fishers took to St. Mary's Bay.
There they were met by Allan Clarke.
“At one time we had a helicopter here in Yarmouth, we filled its hangar with hundreds of seized vessels after Sparrow,” said the retired DFO area chief for southwest Nova. And we laid hundreds of charges.”
Clarke's officers were impeding the right stated by the court. But if there wasn't one law on the water, he feared there would be chaos.
It was the job of senior DFO staff and the politicians to negotiate with First Nations on how to fix the law so that it would be in compliance with Section 35.
Unlike after Marshall, back in 1990 they tried.
The result was the FSC fishery, which saw First Nations provided with tags to fish various species (including lobster) for food, social and ceremonial purposes.
“It is an example of attempting to put a régime in place,” said Isaac of the FSC fishery that came out of Sparrow. “Not perfect and not a complete answer.”
Sparrow didn't say anything about selling your catch and the FSC fishery didn't allow for it.
It would be another nine years before the law caught up to a right that had never been given up.
Meanwhile, the reality on St. Mary's Bay was a far cry from what was envisioned within the stark granite walls of the Supreme Court of Canada building or the boardroom tables of Ottawa bureaucrats.
“It was the habitual lobster poachers who normally would be out in the open for us to see who were trying to hide themselves under the guise of the Sparrow food fishery (FSC),” said Clarke.
“I can see the same issue developing with the Marshall fishery. In my 35 years I was involved in far more charges of non-Indigenous fishermen fishing a closed time illegally that I ever was for Indigenous fishermen. I would it would be 80 per cent non-Indigenous and 20 per cent Indigenous.”
R. VS. MARSHALL
In 2000, DFO's chief negotiator told the Assembly of Nova Scotia Mi'kmaq Chiefs he had no authority to negotiate their rights.
What he did have was a big pot of money.
“Federal fisheries minister Herb Dhaliwal said they provided practical interim access and there would be a later process to address rights,” said Bruce Wildmith, lawyer for the Assembly of Nova Scotia Mi'kmaw Chiefs.
“The (Marshall Recognition) agreements specifically provided they were without prejudice to the positions of parties on rights.”
If Sparrow was a ripple, then R vs. Marshall was a tidal wave.
The Supreme Court's 1999 decision filled in a crucial question mark left by Sparrow for the East Coast's First Nations — it interpreted the right to trade for necessaries in the 18th century treaty to mean the right to earn a “moderate livelihood.”
It didn't say what that is or how to accommodate it. That's the job of lawmakers, not the courts. What the justices did do, is reaffirm (repeatedly) the authority of those lawmakers to regulate the right.
DFO and First Nations faced off in Burnt Church, N.B., and in New Edinburgh in Nova Scotia's Digby County.
Boats were rammed, harbours and highways were blockaded.
And Ottawa opened up its purse strings with some $160 million to buy commercial licences for Mi'kmaw to provide access and a promise that they would consult on the drafting of the regulatory framework demanded by the Marshall decision later.
Just over a dozen First Nations in Atlantic Canada signed on to the first round.
Shubenacadie First Nation (Sipekne'katik) held off — stating that what was on offer didn't satisfy the right acknowledged by the court (which was true).
With then-chief Alex McDonald adamantly opposed what was on offer, DFO negotiators met with a group of eight band councillors (who formed a majority) off the reservation and signed a $5-million deal with them.
The councillors set up a company called Indian Brook Fisheries Ltd, appointed themselves directors and got 10 Cape Island fishing boats, training and equipment. The councillors would later vote to sell the boats back to Reg Leblanc, the Yarmouth-based owner of Wedgeport Lobsters, who had been hired by DFO to procure them, for half the $2.4 million they had been bought for in the first place.
LEASES AND RE-LEASES
At least four of those councillors were paid over $100,000 each for their services to Indian Brook Fisheries Ltd.
A 2014 consultant's report found that the band then leased many of its valuable commercial lobster licences in LFA 34 and LFA 35 directly to then-councillor (now chief) Michael Sack. Most of those licences were then re-leased to non-Aboriginal fishermen.
In recent years, Sipekne'katik has issued a formal request for quotes to lease most of its 15 commercial fishing licences, with priority being given to band members who apply.
The Marshall Response Initiatives went smoother pretty well everywhere else.
They were expanded, replaced by another program and ultimately saw $545 million spent by the federal government. By 2009 Atlantic Canadian First Nations held 1,238 commercial licences — about 10.5 per cent of all existing East Coast commercial fishing licences.
Commercial access had been provided — according to the MacDonald Laurier report, some 1,800 Mi'kmaw were employed in the fishery in 2016 when First Nations licences were responsible for $122 million in landings.
But the regulatory regime for a moderate livelihood fishery required by the Supreme Court never came.
With 322 commercial licences on offer, Minister Jordan shopped around Rights Recognition Agreements this spring.
According to Wildsmith, these agreements came with a clause that the First Nations would not seek to begin a moderate livelihood fishery for their term (10 years). Two First Nations in New Brunswick took the offer but the 13 in Nova Scotia haven't.
“What DFO has not done is propose regulations and consult with the Mi'kmaq on moderate livelihood regulations,” said Wildsmith.
The Supreme Court in Marshall, Marshall II and subsequent decisions have maintained that regulation on the First Nation right to fish for a moderate livelihood constitutes an infringement. But they also say it's the minister's duty to regulate the fishery.
So she is allowed to infringe upon the right, so long as she can justify it on the basis of conservation, substantial public policy objectives or in consideration of long-standing non-Aboriginal users of the resource.
She is required to consult with First Nations on each regulation and make the infringement as minimal is reasonable.
MORE ORGANIZED
In Marshall II, the Supreme Court warned that if moderate livelihood access wasn't negotiated, it would rule on access on a species-by-species basis as they came before it.
While successive fisheries ministers have failed to put forward a regulatory regime to the Mi'kmaq for consultation, despite a mechanism having been created for such a process in 2010, enforcement has also managed to not lay Fisheries Act charges that would end up before the Supreme Court.
After 21 years of waiting, Sipekne'katik First Nation issued its own tags in September and sent a copy of its management plan to DFO.
This time they were organized — they had experience managing their own commercial fishing licences, had hired a communications firm and held daily press briefings with Sack.
Jordan initially issued a press release stating that “unauthorized” fishing wouldn't be tolerated and that the Rights Recognition Agreements offered in the spring was how R vs. Marshall access was being provided by DFO.
But unlike after the Sparrow and Marshall decisions, DFO didn't move to enforce that policy.
They, along with RCMP, were also accused by First Nations of not protecting their fishers or property.
A First Nation-owned boat was burned, a lobster pound was burned and another holding First Nations catch was vandalized and Sack himself was assaulted during a standoff with commercial fishermen.
Then the Bear River and Acadia First Nations issued statements saying that St. Mary's Bay falls within their traditional territory and Sipekne'katik, whose home community is 277 kilometres away, never consulted them.
Those two bands are working with the Assembly of Nova Scotia Mi'kmaq Chiefs negotiating arm, the KMKNO, to implement their own moderate livelihood fishery.
But negotiations between the minister and that body, which represents 11 of Nova Scotia's 13 first nations, fell apart after its fisheries lead (Chief Terry Paul of Membertou) left to side with Sipekne'katik.
It was in this context that Jordan negotiated the MOU with Sack as he threatened to shut down the giant LFA commercial fishery and delivered it to him just before the season's opening date.