The Chronicle Herald (Provincial)
Faceoff brewing over fishing rights
Canadian sovereignty to be tested by Sipekne’katik
When Sipekne'katik's fleet takes to the water in three weeks, it will be about a lot more than who gets the lobster in St. Mary's Bay.
It will be about who has the authority to govern Canada.
While announcing their self-governed moderate livelihood fishery last month, Sipekne'katik chief Mike Sack said that he didn't acknowledge the authority of any federal institution to limit their fishery.
He then went further, saying that his band would ask the United Nations to send peacekeepers to protect their fishery from interference by DFO, the RCMP or commercial fishermen.
The move would amount to inviting foreign troops to overthrow the authority of the Supreme Court of Canada.
In its R vs. Marshall decision and the subsequent clarification where it coined the term "moderate livelihood," the Supreme Court stated the right to fish was a regulated one and the authority to regulate (with consultation) fisheries in Canadian waters rests with the federal fisheries minister.
“The Supreme Court of Canada (SOC) is a colonial institution, it's a Canadian institution,” said Pamela Palmater, a Mi'kmaq lawyer and professor of politics and administration at Ryerson University.
“It is biased to Canada's assertion of sovereignty over our actual sovereignty. The (Supreme Court) has also talked about that - reconciliation requires Canada to sit down and negotiate its assertion over our actual sovereignty.”
So, are there limits to First Nation sovereignty and can they, unlike non-aboriginals, pick and choose which Canadian institutions and laws they are subject to?
“What I believe Chief Sack was saying and what I also believe is that the Mi'kmaw Nation is a sovereign nation, it has an inherent right to govern itself,” said Palmater.
“It has its own laws and those (Canadian) laws we consent to abide by. There has been no process where we sit down to agree which laws we abide by and which we don't.”
But that opinion isn't shared by everyone.
“At end of day, the nation state of Canada is the starting point of Canadian law, as is the Canadian Constitution,” said Thomas Isaac, an aboriginal rights lawyer who 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.
“There is no buffet, there is no picking the parts you like and ignoring the parts you don't like.”
Under Section 35, the Constitution does protect and affirm treaty rights.
“In Marshall — and all the decisions from the Supreme Court of Canada have an element of this — they were quite clear that treaty rights can be regulated by federal government,” said Isaac, who taught the Marshall decision.
“Now can they be regulated in a way ... (that) completely negates the rights they are trying to protect?
“Of course not, there is a balance there. And there is a test to infringing on treaty rights.”
Palmater points to the letter sent last week to the Canadian government by the United Nation's Committee on the Elimination of Racial Discrimination as evidence the international community agrees with her and Sack's position.
The letter, which came as a result of an application by a group of Mi'kmaq lawyers and human rights advocates that included Palmater, calls on Canada to investigate acts of racism and violence against Indigenous fishers, an alleged lack of response by RCMP and DFO and prevent further acts of racist violence.
Notably, it also calls on Canada to “respect, protect and guarantee the rights of Mi'kmaw peoples in relation to their fishing activities and territories, as well as their rights to be consulted, to food and cultural rights, including the measures taken to repeal federal and provincial laws, as well as policies and regulations that unduly limit such rights.”
But Isaac finds that condemnation a bit rich coming from the United Nations.
“Then the United Nations can show me another state on the planet that materially protects Indigenous peoples from unilateral state action?” asked Isaac rhetorically.
“Canada leads the globe on that. Now, can we do better? Of course. What does that say about the other countries? Not much.”
Where Isaac and Palmater come close to agreement is that the federal government is required to consult with First Nations on infringements on their treaty rights.
That would mean, he said, drafting laws that allow for a regulated moderate livelihood fishery, justifying each infringement and having a meaningful discussion with First Nations.
While it has spent over half-a-billion dollars buying up 11 per cent of all the commercial licences in Atlantic Canada and providing them to First Nations, along with training and equipment, those agreements stated that they did not count toward the treaty right.
A new series of agreements being shopped around by Fisheries and Oceans includes more licences and money for First Nations that would allow them to start moderate livelihood fisheries this season, under the caveat that they take place during the local commercial season.
So far, no Nova Scotian First Nations have signed on.
The Assembly of Nova Scotia Mi'kmaq Chiefs did not respond for a request of their position on where First Nations sovereignty leaves off and federal government sovereignty begins.
The thing about sovereignty is that it doesn't really exist unless it's asserted.
Sipekne'katik intends to assert its claim to sovereignty on St. Mary's Bay in three weeks.
Whether the federal government asserts its sovereignty — with smartphones ready to broadcast the nature of conflict — during what's expected to be a federal election year, remains to be seen.