The Mi’kmaq right to their self-regulated fishery

Three articles:

  • Hold Governments to Account for Violation of Treaty Rights and Nation-Wrecking! –  Philip Fernandez 
  • Assembly of Nova Scotia Mi’kmaw Chiefs Respond to Department of Fisheries and Oceans’ Announcement
  • The Mi’kmaq Right to a “Moderate Livelihood”

Hold Governments to Account for Violation of Treaty Rights and Nation-Wrecking! Uphold the Mi’kmaq Right to Their Self-Regulated Fishery

By Philip Fernandez

The Assembly of Nova Scotia Mi’kmaw Chiefs held a press conference on March 4 to firmly reject the latest arbitrary declaration by the Canadian government that the Crown and the Crown alone decides how, where and when the Mik’maq are permitted to exercise their hereditary fishing rights.

Canadian Fisheries Minister Bernadette Jordan, without so much as a word to the Mi’kmaq simply declared on March 3 that:

1) Mi’kmaq fisheries will operate only within seasons as established by the Government of Canada;

2) Canada will enable a “balanced” transfer of a number of existing licences, as they become available on a “willing seller” basis to enable the Mi’kmaq fishery to come into existence;

3) Canada alone determines what is a “sustainable” fishery; and

4) The fishery will be more heavily policed to enforce compliance at every level – from catch, to processing and sales.

The Minister’s statement came just one day after a meeting between the Department of Fisheries and Oceans (DFO) officials and Mi’kmaq representatives where the latter asked yet again for the DFO to provide data and statistics to justify why the Crown is insisting on limiting their treaty rights to fish. There was no reply. The Minister did not see fit to even inform the Mi’kmaq but did give advance notice to the commercial fishers as well as to the monopoly media about these highhanded plans.

Chief Gerald Toney, who holds the Fisheries portfolio for the Assembly of Nova Scotia Mi’kmaq, and Chief Sid Peters, Co-Chair of the Assembly, both denounced the unilateral pronouncements of Canadian Fisheries Minister Bernadette Jordan as “shocking” and “unacceptable.” Once again the Mi’kmaq called for the Crown to engage in nation-to-nation discussions in good faith to find a political solution which enables the Mi’kmaq to exercise their sovereign right to fish.

Shocking and unacceptable it is indeed! This is the reality of the “reconciliation” approach of the Trudeau government. This is no way to engage in nation-to-nation relations.

Canadian Fisheries Minister Jordan repeated the claim that the Crown is following the rule of law as if that makes what the government of Canada is doing legitimate. She cites the Supreme Court Marshal II ruling which says that “treaty rights are subject to regulation provided such regulation is shown by the Crown to be justified on conservation or other grounds of public importance.”

Her statement merely proves that the Royal Prerogative can arbitrarily ignore Mi’kmaq requests for the data and statistics the Crown may be relying upon to override Mik’maq treaty rights. It confirms that it operates on the premise that as the “conqueror of the Indigenous nations,” it is “the ruler” and the Indigenous nations live at its “grace and mercy.” Grace refers to “its courteous goodwill,” meaning “it is not asked for nor deserved, but is freely given.” Mercy refers to “the compassion and kindness shown to someone whom it is in one’s power to punish or harm. It is an act meant to relieve someone of their suffering.” No amount of fast talk from the Trudeau government telling Canadians how it is intent on eliminating remnants of “systemic racism” will change the underlying premises which inform the Constitution of Canada and subsequent governments’ interpretation of hereditary and treaty rights. This is why it is crucial to support the Mi’kmaq in their fight to defend what belongs to them by right.

Professor Megan Bailey, Canada Research Chair in Integrated Ocean and Coastal Governance at Dalhousie University, has worked with both Mi’kmaq and other commercial fishers. Dr. Bailey challenged the Crown’s assertion that the Mi’kmaq self-regulated right to fish for a “moderate livelihood” constitutes a threat to fish conservation. Last September when the Sipekne’katik First Nation launched their own self-regulated fishery, Dr. Bailey stated to the media, “I recognize and I empathize with the commercial fishing sector that this seems like a conservation risk. I don’t think it is. I don’t think the science would support that.”

For more than two years the 13 Mi’kmaq First Nations have been working to put in place sustainability plans and principles that respect the fishing stock and harvesting seasons they have followed for millennia, in order to exercise their treaty right to fish today. They emphasized at the March 4 press conference that they will implement their plans.

It is not the Mi’kmaq who brought devastation to the Atlantic fishery. That was the doing of the Canadian government which gave the global fishing monopolies free rein to overfish. This government under a different ministry is showing once again it is not fit to manage the fisheries, and that it has no intention of fostering nation-to-nation relations with the Indigenous peoples. It must be made to stop criminalizing the Mi’kmaq and their right to enforce their treaty rights and to implement their plans for a self-regulated fishery.

Hands Off Mi’kmaq Treaty Rights!

Uphold the Right of the Mi’kmaq People to Their Self-Regulated Fishery!

(Photos: WF, J. Gruben)

Assembly of Nova Scotia Mi’kmaw Chiefs Respond to Department of Fisheries and Oceans’ Announcement

– Press Release –

While today, Minister Bernadette Jordan, Department of Fisheries and Oceans Canada (DFO), has recognized our Moderate Livelihood Fishery, she has also made unilateral decisions and asserted a position with DFO having full control over our Rights-based fishery. This is unacceptable.

The Moderate Livelihood Fishery is a constitutionally protected Mi’kmaw Right and must be Mi’kmaw – led. Twenty years after Marshall was decided, DFO continues to take a colonial approach to this matter, and it is time that Canada moves beyond this mindset.

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.

DFO is continuing to impose rules without consultation with, accommodation of, or agreement with, the Assembly. Marshall II said that every limitation put on the exercise of our Right must be justified and in consultation with the Mi’kmaq.

Minister Jordan’s announcement is premature to any discussions with the Mi’kmaq, disregards the work and efforts of our communities, and is disrespectful to any attempt at collaboration and reconciliation. “DFO continues to dictate and impose their rules on a fishery that is outside of their scope and mandate,” said Chief Gerald Toney, Assembly’s Fisheries Lead. “The Right to a livelihood fishery is not – and should not be – industry or federal government driven. It is something that needs to come from the Mi’kmaq of Nova Scotia. Imposing restrictions independently, without input of the Mi’kmaq, on our implementation of Rights is an approach that must stop.”

Many Mi’kmaw communities have been working to develop Netukulimk Livelihood Fisheries Plans – based on the Mi’kmaw principle of Netukulimk, taking only what you need and being respectful of the land, animals and environment. Some Mi’kmaw communities have included fishing dates outside of commercial seasons both for the safety of their harvesters who are using much smaller vessels than what is used in the commercial fishery, and our science has shown there is no concern for impacts to the species during those times. DFO has not yet provided us with justification for the imposition of the commercial seasons to our Rights-based fishery.

“DFO must consult the Mi’kmaq, justify their decisions by sharing their data with us if they want to have a discussion – especially on seasons,” continued Chief Toney. “Our communities will continue to build their livelihood plans, with input from our Rights and Environmental organizations, and there is no evidence that our livelihood fishing activity would have a negative impact on the species.”

DFO continues to fail in their duty to consult with the Mi’kmaq and accommodate our concerns.

The Assembly is calling on Canada to act in good faith and to meet with us before publicly pushing their agenda any further.

(March 3, 2021. Photos: WF, SpringMag)

The Mi’kmaq Right to a “Moderate Livelihood”

Over 250 years ago the Peace and Friendship Treaty of 1752 enshrined the Mi’kmaq people’s right to hunt and fish their lands and establish trade. In 1999, a landmark Supreme Court of Canada ruling, R v. Marshall, recognized that the Mi’kmaq and Maliseet people had the right to hunt, fish and gather for a moderate livelihood.

Despite the Supreme Court ruling, governments have since that time refused to establish through nation-to-nation discussion and negotiation what constitutes a “moderate livelihood.” Instead the Mi’kmaq fishers are still prohibited by Nova Scotia law from selling their catch, a right which the 1752 treaty affirmed.

Faced with government inaction, the Sipekne’katik First Nation became the first to start its own self-regulated Moderate Livelihood fishery, launched on the 21st anniversary of the Marshall decision, September 17, 2020.

Worker’s Forum, March 10, 2021 – No. 15





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Filed under Canada, Fisheries & fishermen, Indigenous Peoples

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