Contribution by Allison Bernard
For the past five years, the Kwilmu’kw Maw-klusuaqn (KMK) – also known as Mi’kmaq Rights Initiative– has been engaged in a three party negotiation process to implement Treaty rights with the Province of Nova Scotia and Federal Government. Guided by the Mi’kmaq leadership, one of the key areas in the implementation of Rights is fishing for either food, social & ceremonial, or for livelihood.
The Department of Fisheries and Oceans (DFO) issues special fishing licenses to First Nation communities. Under the Fisheries Act, the Aboriginal Communal Fisheries Regulations and the Aboriginal Fisheries Strategy, DFO recognizes two types of Mi’kmaq fisheries:
- Food, Social and Ceremonial (FSC) fishery (under which fish must be consumed by the community and not sold); and
- Aboriginal Communal Commercial fishery (under which the fish are sold for a profit).
In 1999 the Supreme Court of Canada found in the Donald Marshall case that there was in fact a third type of Aboriginal fishery: a Moderate Livelihood fishery for the beneficiaries of the 1760-61 Treaties.
This was, without question a momentous win for the Mi’kmaq. This not only saw the recognition of this fishery in R. v. Marshall,  3 SCR 456, but the Right was also affirmed by section 35 of the Constitution Act, 1982. Despite this win, Canada has failed to take steps to meet its obligations. In its ruling, the Supreme Court found that the Fisheries Act and Regulations were unconstitutional, yet Canada has continued to enforce this legislation.
Since Marshall, the Crown has not amended the Fisheries Act and Regulations which still prohibits the Mi’kmaq from exercising the right to fish for a moderate livelihood without a license, nor has the Crown provided the Minister with criteria to recognize, implement or accommodate a livelihood fishery license.
Important unresolved legal issues have remained. One significant one is whether there are any rights implications associated with the communal commercial licenses distributed to the Bands. Most such licenses were provided under the so-called Marshall Response Initiative through Marshall Agreements that were supposed to be “without prejudice” to Aboriginal and Treaty rights. DFO’s view is that all Mi’kmaq fishing needs to licensed and any Livelihood fishing that was not licensed is illegal and subject to prosecution. Is that right?
In February 2013, twelve of the thirteen Nova Scotia Mi’kmaq communities filed Notice of Application in Court declaring that Canada has not met its obligation to accommodate the Mi’kmaq treaty right to a moderate livelihood fishery.
Frustrations not only stemmed from the years of not having our rights recognized, but also the newly introduced definition of “Aboriginal fisheries” in Bill C-38 and amended by Bill C-45, enacted as the Jobs and Growth Act, 2012, S.C. 2013, c. 31.
In late 2012, Canada through Bill C-38 placed for the first time a definition in the Fisheries Act of “Aboriginal fisheries”, and later amended that definition through Bill C-45. Despite the Assembly of Nova Scotia Mi’kmaq Chiefs voicing their concerns to all levels of Government, the definition did not include a moderate livelihood fishery. Canada continued to make amendments without fulfilling its duty to consult and accommodate, making decisions that will adversely affect constitutionally protected treaty rights.
There is no question that the changes introduced in the Jobs and Growth Act will directly impact the rights of Mi’kmaq. Despite having worked for years to have our right for a Moderate Livelihood fishery recognized and affirmed by the highest courts in Canada, we still have to fight the Government to agree to this.
Cases continue to be brought to court in Nova Scotia, with people being prosecuted for a breech in the FSC License for fishing salmon in an area that was not written in their Band’s FSC Agreement.
As keepers of the land and resources since time immemorial, we should not have to force governments and their organizations to recognize our peoples and our rights. We have waited far too long for Canada to take the necessary steps to move forward in a positive manner. It is sad that we have been forced to legally fight once again, to ensure that our Treaty Rights are not overlooked any longer.
Allison Bernard is the Fisheries Coordinator for the Kwilmu’kw Maw-klusuaqn Negotiation Office/ Mi’kmaq Rights Initiative and works on behalf of the Assembly of Nova Scotia Mi’kmaq Chiefs. Allison, from Eskasoni First Nation, has dedicated most of his adult life to the protection and preservation of Mi’kmaq rights and the habitats in which our fish species are a part of.