A path forward for Indigenous fishermen
This week, the Standing Committee on Fisheries and Oceans tabled its report on the implementation of the Mi’kmaq and Maliseet treaty right to fish in pursuit of a moderate livelihood, the culmination of six months work and the testimony of 45 witnesses, academics and experts. At the heart of this study is a question of law — one of the most unique cases in Canadian history, requiring not one, but two decisions at the Supreme Court — and a question of fairness.
What is fair to the Mi’kmaq, who have been deprived of their legal right to a practice passed down for generations? What is fair to the commercial fishermen — many of whom today are of Mi’kmaq descent — who depend on the fishery and healthy stocks for their own livelihoods? There is no easy answer.
The report addresses two misconceptions that have added fuel to this fire.
The first misconception is that the Marshall decision granted the government an absolute right to regulate Mi’kmaw treaty fisheries. The case law is clear: The government’s ability to infringe on this treaty right is limited to two areas, conservation and valid public importance. It is also important to recognize, as stated by Prof. Naiomi Metallic, that in regulating in these capacities, the government must meet “the fiduciary duty and honour of the crown by prioritizing Aboriginal and treaty rights in terms of access to the resource.” In short, the government does have some ability to regulate such fisheries, but in doing so they must satisfy legal and ethical obligations to the Mi’kmaw.
The second misconception is that the right to a moderate livelihood is an individual right, practiced when and where any individual Mi’kmaq sees fit. Indigenous and treaty rights such as this are communal rights, described in the Mi’kmaq context as “Netukulimk.” Netukulimk is based on an interconnectedness with our environment, not a concept of ownership. Netukulimk is about what is needed — not desired. Donald Marshall Jr., whose trial led to the reaffirmation of this right, was fishing to provide necessities for his family — which is very different from the unlimited ability to fish claimed by some fishermen.
As someone who is fluent in the Mi’kmaw language, the Mi’kmaw language has no way to describe “an individual unfettered right, to accumulate wealth.” In fact, the closest would be a pejorative term that’s closer to greed. Much like how the government’s right to regulate has limits, the right to a moderate livelihood also has its limits and responsibilities. That is why a responsible, communal approach is consistent with Mi’kmaw values in the practice of this right.
So where do we go from here? The report lays out important recommendations, including ways to bring together Mi’kmaq and stakeholders on the ground like fishermen’s associations for real dialogue on education and systemic racism reform within Fisheries and Oceans Canada (DFO). These will raise awareness and get us to a place where all involved are operating from the same understanding. But it’s not enough to clarify confusion on the ground. People need to know that there is a path forward.
Our report outlines a number of paths forward, including Indigenous-led regulatory models that have worked in B.C., such as the Fraser River Peacemakers or the Listuguj Mi’kmaq Rangers. We recommended capacity building for monitoring ability, training, science and research, which will both advance the core objective of conservation and give the Mi’kmaq a greater role within the fisheries ecosystem. Most importantly, we acknowledge that there are a multitude of paths forward for a moderate livelihood fishery.
To suggest that there is only one way these fisheries could organize themselves, or that there is only one way they could interact with DFO and the government, is to engage in the same narrow thinking that has led to the present situation — and would surrender the creativity and flexibility we want from our negotiators. While perhaps optimistic, I believe that this report will help all sides come together to determine how to move forward, together, in a way that is fair and just for all Nova Scotians.