Lawyer known for Marshall decision retires
His dedication was unwavering, says Mi'kmaq chief
SYDNEY — A Nova Scotia lawyer best known for defending Donald Marshall Jr. in the landmark 1999 Supreme Court case that set the precedent for moderate livelihood fishing in Mi'kma'ki is stepping away from the profession after almost 50 years of fighting for Mi'kmaq rights.
The Assembly of Nova Scotia Mi'kmaw Chiefs announced Bruce Wildsmith, who served as legal adviser for the assembly and Kwilmu'kw Maw-klusuaqn Negotiation Office, retired on June 30.
“Oh, I think I was ready,” he said with a laugh when asked if it was a tough decision.
THE DARK AGES
Wildsmith was called to the Nova Scotia Bar in 1974 after completing a law degree at Dalhousie law school, and took his first case defending Stephen Isaac, a Potlotek First Nation man charged under the Nova Scotia Lands and Forests Act for possessing a rifle on reserve land. The case was the first in Nova Scotia to successfully argue the province did not have legislative power to regulate the use of land and resources on a reserve and set a precedent for the young lawyer's later treaty rights cases.
This was prior to the Constitution Act of 1982, which recognized and affirmed Indigenous treaty rights, and Wildsmith said the arguments in that case and another in 1985, in which he represented James Simon from Sipekne'katik First Nation and which upheld the 1752 treaty made with Jean Baptiste Cope for the first time, had to be crafted "from scratch" from centuries-old documentation in government archives.
“It was like the dark ages when I got involved in 1974, and now it's a bit like night and day. Well, I hesitate to say day because it's more like a dawning that is unfolding,” he said.
That dawning, which has seen politicians publicly recognize inherent treaty rights and Mi'kmaq harvesters exercise those rights, with Sipekne'katik launching its self-governed moderate livelihood fishery in October 2020, followed soon after by Potlotek and Eskasoni First Nations, has not come without controversy, and was met with racial tension and violence in Saulniervillle when non-Indigenous commercial harvesters destroyed property and intimidated Mi'kmaq fishers on the water.
In an effort to avoid a similar scene in the spring, federal Fisheries Minister Bernadette Jordan announced new rules in March restricting moderate livelihood fisheries to the commercial season and requiring licences issued by her department, a move that was rejected by all 13 First Nation chiefs in Nova Scotia under the legal counsel of Wildsmith.
Those early cases and the later Marshall and subsequent Marshall 2 decisions outlining the conditions for the federal government's ability to limit the treaty rights of the Mi'kmaq continue to be at the heart of ongoing issues of Indigenous access to natural resources and treaty rights, and while Wildsmith said there's still a lot of work to be done, he's seen huge strides made in Indigenous rights over his lifetime.
Looking back over his half-centurylong career, he said, “certainly the Donald Marshall (Jr.) case was overwhelmingly the highlight … what happened with that case changed the history of the Mi'kmaq, obviously for the better, over the course of time.”
Wildsmith said in the 21 years since the Marshall decision, the closest thing to it being implemented was the recent understanding between Potlotek and DFO that allowed a limited number of moderate livelihood harvesters to participate in the commercial lobster fishing season, an arrangement that both parties stressed was not a written agreement and would continue to be negotiated for coming seasons.
While it's still yet to be seen how that understanding will play out, he said it's been successful thus far in Cape Breton but will be put to the test in the fall, when no commercial fishing season exists in that area.
REAL-WORLD EXPERIENCE
In the months after the Marshall decision, the federal government granted some First Nations access to the commercial fisheries but a longer negotiation framework was needed to determine the implementation of the treaty rights to a moderate livelihood, which eventually led to the development of Kwilmu'kw Mawklusuaqn Negotiation Office in 2004. Wildsmith was instrumental in that process while also working with the Union of Nova Scotia Indians on a number of precedent-setting treaty rights cases, including Marshall.
Wildsmith also taught law at Dalhousie during this time, starting in 1979 when Aboriginal law was not a part of the program's curriculum until after the 1980s, when he developed a course. He believes his real-world experience gave him credibility in the classroom.
“I always made the case that if you were a law professor, and you were on the cutting edge of various issues and you took them into the courts, took them into real life, those were your experiments and you got your results,” he said.
Wildsmith retired from full-time teaching in 2003, and has since been focused on defending the treaty rights affirmed in his earlier court cases as the lead negotiator and later legal counsel for First Nations communities in Nova Scotia.
In 2017, he was awarded the Distinguished Service Award by the Nova Scotia Barristers' Society for his work with Indigenous peoples in Atlantic Canada.
“Often, I'm sitting in a room or in a meeting and I look around and say, ‘I'm the only non-mi'kmaq person in this room,' so it's been gratifying to be trusted and respected enough for that,” he said, adding he's received derogatory comments outside of those rooms toward his work, “but I never let that bother me too much.”
Wildsmith said he never set out to work in Aboriginal law specifically, but once he was involved, he found the issues “intrinsically intriguing.”
“I could see the injustice of what was happening. … These were people that valued community, valued family life, were patient people, and so that marriage of the great people and the complications of their cases and the injustice, I said, this is what I'm going to do.”
Wildsmith, who lives in Barss Corner, Lunenburg County, with his wife Ardythe, said his retirement means she will finally get the attention she deserves, along with his two adult sons and a grandchild.
“Bruce has spent his career righting the injustices against Aboriginal people, who were simply trying to live according to long-held traditions and cultural ways,” Chief Sidney Peters, co-chair for the Assembly of Nova Scotia Mi'kmaw Chiefs, said in a written statement.
Referring to the Marshall case, Peters said, “Even though this was a massive legal undertaking and he had so few resources, his dedication was unwavering and is the reason that we are on the waters and at the table today … although we wish him well in his retirement, a huge void will be left at the rights implementation table.”