The committee tasked with recommending next steps on implementing a moderate livelihood fishery isn’t revisiting the Supreme Court of Canada decision on which it is based.
“Not that I know of,” said MP Ken MacDonald, chairman of the standing committee on fisheries and oceans, on whether legal analysis would be part of the anticipated testimony.
“Unless someone has proposed a legal mind to give it their best shot. I think it would be relevant but on any decision, if you get two lawyers in a room, they can both argue on the opposite side.”
When the same committee met two decades ago to answer the same question, it did seek guidance on what the Supreme Court of Canada’s R vs. Marshall and its earlier R vs. Sparrow said about the questions at the heart of the current crisis:
- Does the fisheries minister have the authority and/or responsibility to manage the Mi’kmaq moderate livelihood fishery?
- How is “moderate livelihood” access provided?
“The Court did not hold that the Mi’kmaq treaty right cannot be regulated or that the Mi’kmaq are guaranteed an open season in the fisheries,”reads the Supreme Court clarification known as Marshall II.
“… The Court was thus most explicit in confirming the regulatory authority of the federal and provincial governments within their respective legislative fields to regulate the exercise of the treaty right subject to the constitutional requirement that restraints on the exercise of the treaty right have to be justified on the basis of conservation or other compelling and substantial public objectives,”
The court went further to say the federal fisheries minister not only has the authority but the responsibility to regulate fisheries for conservation, substantive public policy objectives or out of fairness to a long-term existing user of the resource that may include non-aboriginals.
But the minister must consult with First Nations on those regulations as they constitute a limitation on the right to make a moderate livelihood off the resource.
“A ruling may have said that but I think from listening to my colleagues, a treaty put in place long before these rulings indicated differently,” said MacDonald.
“The interpretation of the Supreme Court may have only looked at the evidence presented to them. Did they actually look at what was signed off on the treaty that gave the First Nations the right to fish?”
The Supreme Court did do that.
In establishing that Donald Marshall Jr. had a right under the Treaty of 1760 to sell the eels he caught in the Pomquet River to procure “necessaries,” it reinterpreted the latter word to mean “food, clothing and housing, supplemented by a few amenities.”
One of MacDonald’s colleagues, fellow Liberal and Prince Edward Island MP Wayne Easter, was chair of the committee when it produced its 28 recommendations based upon the Supreme Court decisions.
Recommendation Number 1 was that access be provided by buying up commercial licences and transferring them to First Nations.
The federal government accepted the recommendations and created the Marshall Response Initiatives.
According to a 2009 audit of the program, $589.6 million was spent buying commercial licences, providing training and equipment. By the time the programs wrapped up in 2008, Maritime First Nations held over 1,200 commercial fishing licences representing 10.5 per cent of all the licences available.
Asked why his party thought that constituted providing the Supreme Court required access in 2000 but not in 2020, MacDonald responded, “I think a lot can change in 20 years. A lot does change. I think it’s important to hear from the people on the ground today versus hearing what people said 20 years ago.”
Marshall, Marshall II and the standing committee’s 2000 report all stated that the right to harvest resources was limited to resources near the First Nation and to be administered by the community.
“The treaty rights do not belong to the individual, but are exercised by authority of the local community to which the accused belongs, and their exercise is limited to the purpose of obtaining from the identified resources the wherewithal to trade for ‘necessaries’,” reads Marshall II.
The subsequent standing committee report directed government to consult with First Nations on regulations and for DFO to train aboriginal enforcement officers.
“The Committee recommends that a co-operative, co-management and community-based approach to management of fisheries should be promoted,” reads Recommendation 13 of the Marshall Decision and Beyond: Implication for Management of the Atlantic Fisheries.
Beyond providing licences,training and equipment, it does not appear that DFO sought to negotiate a co-managed or community-based moderate livelihood fishery.
“As this and other courts have pointed out on many occasions, the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi’kmaq rather than by litigation,” reads Marshall II.
“In the absence of a mutually satisfactory solution, the courts will resolve the points of conflict as they arise case by case.”
While successive fisheries ministers haven’t conducted those consultations with First Nations, they also have prevented the courts from ruling by directing fishery officers not to charge First Nations fishermen.
Multiple First Nations and non-aboriginal fishermen have told The Chronicle Herald in recent years that they both wanted charges to be laid so that the issue would head back to the courts and be resolved.
The committee has heard from representatives of commercial fishermen and First Nations organizations and governments. It will also hear from federal Fisheries Minister Bernadette Jordan.
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