The Senate

Motion Pertaining to Mi’kmaw Fishers and Communities, As Amended, Adopted

May 27, 2021


Hon. Dennis Glen Patterson
[20:15]

Honourable senators, I rise today to speak to Motion 40, now as amended, introduced by our colleague Senator Francis. As this motion has been debated, I’ve listened carefully and heard colleagues speak with obvious passion and conviction. I think it is fair to say that we all stand united in condemning violence against any Canadian, and I certainly condemn the violence against Indigenous fishers that we had sadly seen in the months prior to this motion being introduced last fall.

I knew that I wanted to speak in support of this motion but I wanted to listen and consider the positions of those who are from the Atlantic provinces to understand the positions of those whose lives are more directly affected either by this conflict, the lobster fishery or both. In preparing for this speech, I read again the motion itself and took particular note of the first paragraph, which calls upon the Senate to:

. . . affirm and honour the 1999 Supreme Court of Canada Marshall decision, and call upon the Government of Canada to do likewise, upholding Mi’kmaw treaty rights to a moderate livelihood fishery, as established by Peace and Friendship Treaties signed in 1760 and 1761, and as enshrined in section 35 of the Constitution Act, 1982 . . . .

But before the Senate can affirm and honour the Marshall decision, I feel it is important to understand what we are being asked to support. It is also important to point out that history is once again, unfortunately, repeating itself. First, there are two Marshall decisions. The original decision was rendered on September 17, 1999. Following confusion and violence, the Supreme Court of Canada issued Marshall II, which sought to clarify and explicitly address points of contention — points that, to this day, continue to be confused.

As several senators have pointed out, the Marshall decision did make an allowance for Indigenous fishermen to fish for “necessaries” or what is also known as a “moderate livelihood.” However, the Marshall decision is equally clear that these treaty rights can be subject to regulation. It states what is contemplated is not a right to trade generally for economic gain, but rather a right to trade for necessaries. The treaty right is a regulated right and can be contained by regulation within its proper limits. Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi’kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right. Such regulations would accommodate the treaty right and would not constitute an infringement that would have to be justified under the Badger standard.

Following the Marshall decision, differing interpretations and a lack of leadership and direction from the Department of Fisheries and Oceans, or DFO, led to violent clashes between Indigenous and non-Indigenous fishermen. There was confusion surrounding what “moderate livelihood” meant and whether or not a treaty right could be limited by DFO conservation regulations.

The West Nova Fishermen’s Coalition filed for a rehearing seeking clarification on whether the Mi’kmaq fishing rights were subject to regulations on conservation and other grounds. Their request for a rehearing was denied. Instead, on November 17, 1999, the Supreme Court of Canada released Marshall II, which contained the sought-after clarifications:

The Crown elected not to try to justify the licensing or closed season restriction on the eel fishery in this prosecution, but the resulting acquittal cannot be generalized to 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”. The factual context for justification is of great importance and the strength of the justification may vary depending on the resource, species, community and time.

The federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds. The Marshall judgment referred to the Court’s principal pronouncements on the various grounds on which the exercise of treaty rights may be regulated.

I would stress the following passage to you, honourable senators, some of which Senator Wells has recited:

The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non-aboriginal users of the resource.

I know the Mi’kmaq are committed to conservation and a sustainable fishery, as well as any other fishers in the lobster fishery.

The case goes on to say:

The regulatory authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. 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.

Upon hearing that, what are we left with? To me, we are left with a lack of leadership from the responsible department.

I want to say this about Aboriginal and treaty rights: I was there during the repatriation of the Constitution. I participated in those meetings as a representative of the Government of the Northwest Territories. I worked with past colleagues, such as retired senators Serge Joyal and Charlie Watt, to have section 35 rights included in the Constitution. I was there when Canada’s Aboriginal Affairs ministers who met together failed to define — time and time again, over the course of three years — what those rights were. This inability to define the rights of Indigenous peoples has led to court challenge after court challenge over the past almost 40 years, including the Marshall case.

The Fisheries and Oceans Committee in the other place — led by Wayne Easter, who serves as an MP to this day — conducted a study on the impacts of the Marshall decision and issued a report in December of 1999. In it they discussed the narrowness of the applicability of the decision and highlighted the responsibility of the minister to regulate the fishery for compelling and substantial objectives other than conservation. Indeed, in their summation of the case, the report points out that:

The Court affirmed that the decision did not confer any right to a separate commercial fishery. “The Mi’kmaq treaty right to participate in the largely unregulated commercial fishery of 1760 has evolved into a treaty right to participate in the largely regulated commercial fishery of the 1990s.”

The report makes it evident that some Indigenous groups would consider negotiating the terms of such regulations and limitations on their treaty rights, while others, such as Esgenoopetitj First Nation, Burnt Church, rejected this.

Among those witnesses who were open to such negotiations was Bernd Christmas, who is quoted in the report as stating:

I said that we will negotiate the rules and agree to the rules, one set of rules, if there are good faith negotiations. If that includes seasons, well, possibly, but again, I want to stress at this point that we will agree to one set of rules — not the status quo right now — if there are good faith negotiations on the part of the Government of Canada.

This, along with other evidence presented to the committee, led to recommendations, including 5 recommendations relating to integrating Indigenous fisheries into existing fisheries, 21 recommendations relating to conservation and stock management, and 3 recommendations relating to remaining issues, which included a recommendation that stated, “The concept of moderate livelihood must be clarified or better defined.” The government did act on some of these recommendations, buying back commercial licences as they became available and helping support new Indigenous fisheries with boats and fishing gear.

DFO, in its Integrated Fisheries Management Plan from 2019 regarding lobster fisheries in the Atlantic stated that, “Commercial access to this resource is managed as a limited entry, competitive fishery.” There is no recreational access. DFO does, however, note that it “provides regulated access to lobster for Aboriginal people.” However, there is no enforcement of any of the above from the responsible minister, and those months last fall, while tensions rose, violence erupted and warehouses burned, the Minister of Fisheries and Oceans and all of DFO seemed “slow and uncertain” and “caught off guard” while “chaos and confusion ruled.” That is just as they were described in 1999 in the Easter report from the other place.

Senator Richards, who knows this story first-hand in speaking to this motion, succinctly called DFO “inept.”

How is it, colleagues, that we find ourselves here again today? How have we not negotiated in good faith, as was suggested by Mr. Bernd Christmas when he testified before a parliamentary committee? How has DFO and its minister refused to define “moderate livelihood,” 38 years after both Marshall decisions? We need strong leadership to get us through this, and it seems we are not getting it from this government.

I support this motion, but I want to be clear what that means. It means that I wholeheartedly condemn the violence directed toward Indigenous fishermen. It also means that I support the assertion in Marshall that these treaty rights do exist but are subject to regulation by the minister in the name of conservation and any other reasonable limitations as allowed by law. By supporting the motion as amended, I call upon the government to finally show leadership in resolving this crisis lest history be doomed to repeat itself again. Thank you. Qujannamik.

Hon. Pierre J. Dalphond
[20:27]

Honourable senators, I see that the clock is ticking and we’re getting close to the agreed adjournment time. However, I know there is consensus among all the groups that we should proceed beyond 8:30 to complete Motion No. 40.

I seek leave that we continue until we complete the debate on Motion No. 40.

Hon. Donald Neil Plett (Leader of the Opposition)
[20:28]

Honourable senators, we are prepared to grant leave if that means that Senator Christmas will speak and then we call the question. I think we have exhausted this. Senator Christmas did say he wanted to speak, so we are prepared to grant leave for that, but not beyond Senator Christmas’s speech and the question.

The Hon. the Speaker pro tempore
[20:28]

Honourable senators, is leave granted?

[20:29]

Senator Patterson, thank you very much for your comments. I wish to compliment you on your comments, particularly because of the issue of the lack of clarity.

I wanted to ask if you would agree with me on this issue and for the police who attended these incidents. If the fisheries minister is unclear on what the rules are, it would seem to me to be even more problematic for the police who arrive and try to sort through these issues.

I wonder if you see that in the same way I do, given the complexity of the issues?

Senator Patterson
[20:30]

Senator Boniface, I think you’ve expressed very well the dilemma that was placed on the difficult job of policing in these situations, with a lack of clarity around what the law is. You said it very well. I totally agree with the premise of your question. Thank you.

The Hon. the Speaker pro tempore
[20:30]

The time has expired. We’re now going on debate on the amendment motion.

Hon. Dan Christmas
[20:30]

Thank you, honourable senators, for allowing me to speak this evening. Honourable senators, I rise today to speak to motion 40, calling for the upholding of the Supreme Court-affirmed Mi’kmaq treaty rights to a moderate livelihood fishery. I’ve been very eager to join the debate for a long while and I’m thankful for the opportunity to do so this evening.

Keep fishing. Keep fishing. I’m quoting the words of Membertou Chief Terry Paul, spoken in 2019 during the Senate committee hearings around amendments to the Fisheries Act.

I’d asked him what our friend Junior Marshall might have said he was trying to do by establishing the moderate livelihood fishery, and what his advice to our people, the Mi’kmaq, would have been after all of these years?

Keep fishing, in the same way our people have done for nearly 10,000 years in what is known as Atlantic Canada. Keep fishing, just as Junior Marshall had been doing when he was initially arrested in August 1993. Keep fishing, in the manner prescribed under the Peace and Friendship Treaties signed in 1760 and 1761, and enshrined in section 35 of the Constitution Act, 1982. Keep fishing, quietly, with determination and in full accordance with Mi’kmaq traditions, conservation and legal systems. Keep fishing, and as Herbert Hoover once said: “Be patient and calm; no one can catch fish in anger.”

Yet, here we are as the Mi’kmaq nation, 22 years later, is still being told to wait for the implementation of the Marshall decisions.

As Chief Terry mused in 2019 at POFO hearings:

One of our problems is that we are a very patient people. So the government, through the Department of Fisheries and Oceans, came up with interim measures. That’s what we have been fishing under, since we still fish under the DFO regulations like anyone else. They came up with this interim measure because they had nothing in place to deal with the court decision. The court decision was not what had been expected. Nobody in government believed we could win this case.

Honourable senators, permit me to metaphorically describe the current situation in a way I hope drives home its principal reality.

Imagine if, in kindness, you invited a stranger’s family into your home and onto your properties. As their family grew, you made an agreement to share your land and resources with them. In time, they disregarded the agreement and took over your property while forcing you to live in a shack in the backyard. Then, they tell you that you had to follow their rules and you can’t use what was once your land and it is what they now consider to be their land and resources. So you go to the courts and the decision says that the original agreement stands, and you have a right to use your lands and resources, not to become rich like your neighbours but only to make a living. The family you invited in ignores the court’s binding decision and says that you are a threat to the sustainability of the resource even though you represent only 5% of the population. When the time comes to harvest on your property, the family refuses to protect you from violence and property destruction perpetuated by their kin. What do you do?

That question becomes dwarfed by the myriad others that must be considered in examining the 260-year-old history of the moderate livelihood fishery.

For instance, where was the Department of Fisheries and Oceans when the 1760-61 treaties were signed? Did they even contemplate regulating the moderate livelihood fishery? Were there DFO vessels in the water? Did DFO need to conserve fish stocks and other public interests?

Of course not. The Mi’kmaq had been observing its millennia-old self-management regime of the resource through the application of Mi’kmawq traditional law called Netukulimk.

As defined by the Unama’ki Institute of Natural Resources:

Netukulimk is the use of the natural bounty provided by the Creator for the self-support and well-being of the individual and the community. Netukulimk is achieving adequate standards of community nutrition and economic well-being without jeopardizing the integrity, diversity, or productivity of our environment.

As Mi’kmaq we have an inherent right to access and use our resources and we have a responsibility to use those resources in a sustainable way. The Mi’kmaq way of resource management includes a spiritual element that ties together people, plants, animals and the environment.

Fast-forward to 12 weeks ago when DFO unilaterally launched its new path policy. Hardly a new path. This policy is an old dirt road shortcut to colonialism.

In his final report to the DFO minister, Federal Special Representative Allister Surette cited that based on his research:

. . . the root of the conflict in the fishery is the unwillingness of DFO to recognize Indigenous rights and self-determination, and to share any of DFO’s jurisdiction with Indigenous communities.

Another observation one can easily draw from Mr. Surette’s report is that the new path policy’s purpose seemed to be to serve the interests of the commercial industry.

He noted that:

The commercial industry generally felt that the minister’s statement was a step in the right direction, especially its commitment to enforcing a common fishing season for all, but still have reservations on a number of issues that could affect their industry.

He added: “. . . the Indigenous communities consider this approach to be unacceptable.”

Who could blame us for thinking so? It’s as if the new path policy was intentionally designed in the commercial fishers’ interest, with Indigenous implications relegated to the bottom of the barrel.

Questions abound. For starters, with whom did Minister Jordan consult? Certainly not with the Mi’kmaq, as highlighted in the media statement issued March 4 by the Assembly of Nova Scotia Mi’kmaq Chiefs in which they declared:

Canada emphasizes a commitment to ‘Nation-to-Nation’ discussions, yet DFO continues to assert dominance over our Nation – making announcements and decisions, leaving no room for discussion or consultation. This is negligent of promises of working Nation-to-Nation, Rights affirmation, reconciliation and is in complete disregard of our governance and leadership.

There was, it seems, ample consultation with industry, however. DFO and the Canadian Independent Fish Harvester’s Federation collaborated on a series of workshops regarding reconciliation with Indigenous people in the fisheries just a few months before the release of the new path policy.

Surette was quick to point out in his final report:

. . . the indigenous point of view that the Government of Canada is continuing to take a colonial approach to this matter, disregarding the governance and leadership of the Indigenous communities in the “nation-to-nation” commitment, hence continuing to impose and dictate their rules on the fisheries that is outside their scope and mandate.

A further and extremely troubling reality is the very slow pace at which steps were taken to address the growing violence across the communities. It took a full month before the RCMP increased its personnel in Saulnierville, Nova Scotia.

A CBC news report earlier this week stated that a top RCMP officer requested help to pay for extra policing costs during last fall’s fisheries dispute in southwest Nova Scotia, but the province’s Justice Minister resisted for two weeks and only agreed after two lobster pounds holding Mi’kmaq catch were vandalized with one later burned to the ground.

The report also stated that Sipekne’katik Chief Mike Sack said his community tried to work with the RCMP but there wasn’t enough support to ensure people were safe. He was quoted as saying:

I remember the day we were stranded at the lobster pound. All day they were saying more RCMP are coming, more are coming. It was just a bunch of lies. There was never more RCMP coming. So much of it could have been prevented.

Our people were left stranded. For the province to be aware, and just sit back thinking about it, that doesn’t sit very well.

Chief Sack concluded by saying:

It just adds to what we went through. The RCMP weren’t there for us. There were officers in the area who were great, but overall they really failed our people.

I spoke with Public Safety Minister Bill Blair on October 17, after weeks of confrontations, and shared my deep concern about the violence. He had only just then received a request from the Province of Nova Scotia to increase deployment. Why did the province wait so long?

Thankfully, and despite repeated provocation, the Mi’kmaq did not respond to the violence. Why not, you might ask? The answer is simple: They were respecting the covenant and honouring the Treaty of Peace and Friendship, which lies at the very heart of this matter.

Speaking of timeliness around interventions aimed at defusing the mounting crisis, Senator Francis, MP Jaime Battiste and I sought, as Canada’s Mi’kmaw parliamentarians, to undertake outreach respectively to the federal ministers of Crown-Indigenous Relations and Northern Affairs, Indigenous Services Canada and DFO. We did so with a singular objective in mind: to suggest practical, pragmatic and innovative remedies to mitigate the impasse that has plagued the moderate livelihoods for all these years since the rendering of the Supreme Court decisions in Marshall. We proposed the establishment of a fisheries model that would ensure the fisheries for the future as an Atlantic First Nations fisheries authority.

We also advocated that in situations where government intervention might be required in instances where there is an unwillingness to accommodate or respect a moderate livelihood fishery, the government might need to explore the possibility of implementing a quota for lobster or a total allowable catch system in place. That would ensure not only the sustainability of the resource, but it would also accommodate and respect the rule of law in Canada as well as the Mi’kmaq values of Netukulimk.

Sadly, as in so many elements of this issue, our suggested remedies seem to have gone unconsidered, if indeed they were heeded in any way at all. Yet, thankfully, the issue did receive the benefit of further consideration by the members in the other place. The House Standing Committee on Fisheries and Oceans studied the moderate livelihood fishery and released its report a few weeks ago. Overall, it’s my view that the report is a constructive move forward.

I was pleased to note the report’s positives. Thierry Rodon, Associate Professor and Canada Research Chair in Sustainable Northern Development at Université Laval, cited his view that the Government of Canada recognized the inherent right of self‑government as an existing Aboriginal right under section 35 of the Constitution Act, 1982, through its Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government policy launched in 1995. He stated:

The co-management of natural resources allows for the recognition of a dual authority: that of the federal government over the commercial fisheries and that of the Indigenous communities over the management of their resources.

The committee report also provided examples of Mi’kmaw harvest management plans designed to ensure the conservation of fishery resources, including rules for conservation, safety and accountability. In particular, Chief Darcy Gray referred to the Listuguj Mi’kmaq Government’s lobster fishing management plan as follows:

We understand the need for a well-regulated fishery. We understand that with rights comes responsibility. After several years of community consultation, we adopted our own law and fishing management plan to govern our lobster fishery. Our law and plan allow our people to sell their lobster but ensure that fishing efforts remain sustainable. For the last two falls, we have conducted our own self-regulated fishery. Lobster stocks in our fishing area remain healthy. We have not seen violence like that being witnessed in Nova Scotia. We see our lobster fishery as a self-determination success story. We tried to get here working with DFO. In the end, though, we got here in spite of the DFO.

I was also very encouraged to see the Government of Canada consider alternate governance models that are consistent with treaty and Canadian law that share authority and decision-making with Mi’kmaq and Maliseet nations.

So now we await the government response to the House committee report. However, it will not be the only article to which the Government of Canada must respond.

As if the situation couldn’t get much bleaker or more complex, the UN’s Committee on the Elimination of Racial Discrimination is now seeking answers from Canada regarding the racism and violence Mi’kmaq lobster fishers experienced while they were exercising their treaty right to fish for a moderate livelihood in Nova Scotia last fall. The world will be watching as this unfolds. The future of Canada’s lobster industry is at stake.

But as Robert F. Kennedy once reminded us: “The future is not a gift. It is an achievement.”

So if we are indeed to achieve a peaceful, sustainable and just future for the moderate livelihood, we here in this august chamber must act, just as Canada must act in the face of the UN’s Committee on the Elimination of Racial Discrimination’s inquiry.

As I close, I’m conscious of what the Report of the Royal Commission on Aboriginal Peoples reminded us of 25 years ago:

Canada is a test case for a grand notion – the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences.

The moderate livelihood fishery is part of that grand notion, and we must all work together, colleagues, to make this test case a successful one, yielding peaceful and fruitful results now and into the future.

I offer my personal thanks and gratitude to the many senators who have spoken to this motion to date. I especially want to thank Senator Wells for moving his amendment to the motion, and I now humbly urge all honourable senators to unanimously adopt this motion before us. Wela’lioq. Thank you.

The Hon. the Speaker pro tempore
[20:46]

Are senators ready for the question?

The Hon. the Speaker pro tempore
[20:46]

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to, as amended.)