The ‘Wil’ of the People: Is the heart of reconciliation still beating? Part 1

In this edition of The 'Wil' of the People, Wil Robertson explores reconciliation after the fishery dispute in Nova Scotia. (Aaron Sousa/AQ)

This is part one of a three part series on the fishery dispute in Mi’kmaq territory, particularly the Sipekne’katik First Nation. 

Let’s first respectfully acknowledge that St. Thomas University and The Aquinian are situated on the traditional, unceded territory of the Maliseet/Wolastoqiyik Peoples. A disclaimer to readers — I am a cisgender, white man with no Indigenous heritage. In this piece, I seek to be as informative and enlightening as possible for those who may not know much about this situation and Canada’s history with Indigenous Peoples, while giving my take on the situation at hand and some of the political implications of it.

Back in March 2020, I wrote “Is the Heart of Reconciliation still Beating?,” at the height of the Wet’suwet’en crisis. This piece is a continuation of that story, with the focus now shifted to the Nova Scotia fishery dispute.

Reconciliation remains in the dire condition I described in March. The Federal Government announced on Dec. 3, 2020, that it would finally implement legislation to adopt the United Nations Declaration on the Rights of Indigenous Peoples. The previous day, Dec. 2, 2020, Marc Miller, Indigenous Services Minister, confirmed that the Liberal government will not meet its commitment to lift all long-term drinking water advisories in First Nations by March 2021. Fifty-nine such advisories are still in effect. Prime Minister Justin Trudeau made the promise to end all long-term boil-water advisories within five years during the 2015 election campaign. Both recent events are significant in their own respects regarding Crown-Indigenous relations, but also overshadow the ongoing crisis which is the subject of this piece.

For most of us, this issue only came to the forefront of our minds in September, though it has been going on for much longer. To contextualize this crisis, I’ll start with how the last major Indigenous fishing rights controversy unfolded with the R. v. Marshall Canadian Supreme Court decision, decided on Sept. 17, 1999. 

The Supreme Court’s 1999 verdict charged Donald John Marshall Jr., a “Mi’kmaq Indian” with selling eels without a licence, fishing without a licence and fishing during close season with illegal nets. The issue with the trial was whether Marshall had a treaty right to catch and sell the 463 pounds of eels he admitted to having sold. The Court concluded that the prohibitions on catching and retaining fish without a licence, on fishing during the close time and on the unlicensed sale of fish were inconsistent with the treaty rights of the appellant contained in the Mi’kmaq Treaties of 1760-61. Therefore, Marshall could not be charged and was acquitted.

The Court recognized that stemming directly from treaty rights enshrined in Peace and Friendship Treaties of 1760-1761 between the Crown and Mi’kmaq Peoples, and oral agreements that came thereafter, allowed for Indigenous Peoples to fish to earn a moderate livelihood. The definition of moderate livelihood was expressly left to Parliament to decide. It might not be surprising that this never occurred. It is from this Canadian Supreme Court decision, and the rights listed in it, that the Mi’kmaq Sipekne’katik Nation’s Chief, Michael Sack, announced the beginning of a Mi’kmaq fishery in St. Mary’s Bay, Nova Scotia, this past September.

Before moving onto the events of 2020, it is important to look at the outcome of a motion for a rehearing and stay of the R. v. Marshall decision in November of 1999. The motion was denied with the Court limiting the “moderate livelihood” ruling.

The federal and provincial governments have the authority to regulate the exercise of a treaty right, where justified on conservation or other grounds. The key here is the objective of “conservation,” the responsibility for which rests with the minister, in this case, the minister of Fisheries and Oceans Canada (DFO). The regulatory authority, the minister, extends to other compelling and substantial public objectives. These may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-Indigenous Peoples. The Court decided that: “Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and Aboriginal rights. The Minister has available for regulatory purposes the full range of resource management tools and techniques, provided their use to limit the exercise of a treaty right can be justified on conservation or other grounds.”

It is for these reasons that non-Indigenous fishermen fervently believe Indigenous Peoples should not be allowed to fish out of season, which runs from May to November and should have to follow DFO rules. As to the argument of conservation, the notion that an Indigenous lobster fishery will significantly harm the overall population of the species has been debunked by scientists, including Megan Bailey, an associate professor and Canada Research Chair in integrated ocean and coastal governance at Dalhousie University in Halifax. 

In an interview with CBC on Sept. 22, she said: “If we look at kind of what the commercial effort is normally in that area and its hundreds of thousands of traps, the 250 traps going in right now, it’s a negligible impact on the stock and I don’t think it’s a conservation concern at this scale.” While non-Indigenous fishermen argued for conservation to curtail Mi’kmaq treaty rights, they stole the lobster from Indigenous storage and left it in heaps outside the DFO office, for all the lobster to go to waste.