Court order gives Mi'kmaw fishers temporary protections, but what are the next steps?

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Moderate living fishing fleet. Image: Courtesy Sipeknekatik

This publication and others have written about the shocking acts of violence and intimidation toward Mi'kmaw lobster fishers in Nova Scotia following the inauguration of a fishery in St. Mary's Bay by the Sipekne'katik First Nation in September 2020. 

In addition to threats and harassment by commercial fishers, the Department of Fisheries and Oceans has allegedly seized traps belonging to Indigenous fishers, escalating tensions.

The treaty and 1999 Supreme Court decisions

The rights of First Nations in Atlantic Canada to hunt, fish and gather are guaranteed by the "Treaty of Peace and Friendship" of 1760, which was one of a series of treaties signed with the British. That treaty was considered by the Supreme Court in 1999 when a Mi'kmaw fisherman was charged with fishing and selling eels without a license, and fishing during the close season with illegal nets. 

In its decision, the Supreme Court concluded that while the treaty did not specifically spell out a positive Mi'kmaw right to trade, it did not contain all of the promises made and terms agreed to, some of which were apparent from minutes of negotiating sessions and contained more favourable terms. 

Ultimately, the court concluded that the treaty did indeed grant a right to hunt, fish and gather in order to secure a "moderate livelihood" (or to "trade for necessaries"), such that present-day standards could be enforced by establishing catch limits without violating the treaty right. 

On that basis, the accused -- who caught and sold eels to support him and his wife -- was acquitted. Shortly after that decision, however, the West Nova Fisherman's Coalition applied to the Supreme Court on the issue of whether the application of fisheries regulations to the exercise of the Mi'kmaw treaty rights could be justified on conservation or other grounds. 

As a result of that application, the Supreme Court clarified that the previous decision should not be taken to be "a declaration that licensing restrictions or closed seasons can never be imposed as part of the government's regulation of the Mi'kmaq limited commercial 'right to fish.'"

Collectively, the court's rulings raise questions about what constitutes a "moderate livelihood" in the context of fishing and what factors might justify the applications of fisheries regulations to Mi'kmaw treaty rights.

October 2020 injunction

The court has already weighed in to curb escalating tensions among Indigenous and commercial fishers in Nova Scotia, granting an interim injunction in favour of the Sipekne'katik Band Council (the "band") that prohibits the blockading of access to fishing sites or the lobster pound, threatening, coercing, harassing or attempting to threaten any member of the band and persons doing business with members of the Band, and interfering with the performance of contracts of any enterprise doing business with the band. 

The injunction, which will remain in place until December 15, authorizes the RCMP to arrest and remove any person who they believe have contravened, or are contravening the court order.

In light of numerous reports of inaction by RCMP officers in the face of violence and intimidation toward Indigenous fishers, including those here and here, the injunction is a welcome step.

To obtain the injunction, the band would have had to demonstrate that there was a serious issue to be tried, that they would suffer irreparable harm if the order was not granted, and that the band would suffer greater harm if the injunction were not granted than the respondents would suffer if the order were granted.

What next?

There remains an open question about what constitutes livelihood fishing in the current context, and how to honour the treaties established between the Crown and the Indigenous people.

In its original 1999 decision, the Supreme Court stated that the appeal had to be allowed because "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaw people to secure their peace and friendship, as best the content of those treaty promises can now be ascertained." That sentiment remains true today and should guide any further consideration of this fraught issue.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Image: Courtesy Sipeknekatik

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