Acting on treaty right recognized in the Supreme Court of Canada’s decision 21 years ago in R v Marshall, the Sipekne’katik First Nation launched its moderate livelihood fishery in the waters off southwest Nova Scotia in early September. Since the fishery’s launch, some have suggested the Canadian government has broad authority to dictate how the Mi’kmaq’s treaty-based fisheries can operate.

While the Court in Marshall (and in a subsequent, related decision in Marshall 2) acknowledged Canada could lawfully “regulate” the treaty right, regulate does not mean Canada may legislate and limit the treaty right in whatever way it sees fit. Far from it. As two law professors who teach Aboriginal law, we have decided to weigh-in to provide clarification. Our clear answer is that Canada’s actions, thus far, would not meet Constitutional muster.

The limits on Crown regulation of Aboriginal and treaty rights

Section 35(1) of the Constitution Act, 1982 states that “[t]he existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Whereas the phrase “Aboriginal rights” refers to the inherent rights of Aboriginal peoples, which are grounded in prior occupation, “treaty rights” refers to rights that were negotiated between Indigenous and non-Indigenous governments and then recorded in legally binding treaties.

In the first Supreme Court of Canada decision interpretating the provision, R v Sparrow (1990), the court affirmed that section 35(1) “renounces the old rules of the game” where the Crown had assumed it held unilateral rights to ignore or limit Aboriginal rights. As a provision of the Constitution, the court found section 35(1) places “a measure of control over government conduct and [creates] a strong check on legislative power.” The Supreme Court laid out a two-step test the government must prove when its laws or actions infringe Aboriginal rights (for example, where the law or action ignores or denies the right, or places unreasonable limits on its exercise). Failure to meet this test will result in the government’s law or action being declared unconstitutional – in other words, illegal.

The first prong of this two-step test asks whether the infringement has a valid objective. The court stated that such objectives would need to be compelling and substantial, and would include those related to conservation and management of a natural resource. The Supreme Court clarified in the 2003 R v Powley decision that the government cannot simply assert that it has a valid objective. In that case, the court said that Ontario could not simply assert conservation as an objective, but had to provide actual evidence to support that the particular species in issue (moose) was under threat and that preventative measures were required.

The second prong of the Sparrow test requires the government to follow a process that ensures its treatment of the Aboriginal right is in line with the honour of the Crown and the government’s fiduciary relationship with Indigenous peoples. To determine if this part of the test is met, the court said it would look to whether the government ensured the Aboriginal rights-holder had priority access to the resources after any conservation issues were taken into account; whether the government took steps to ensure that any impact on the Aboriginal rights-holders were minimized; and whether there had been meaningful consultation with the affected Aboriginal group regarding the infringing law or activity and how the infringement would be mitigated. The Court affirmed in R v Badger (1996) that this test applies to all Aboriginal rights, including treaty rights, such as those currently being practiced by the Mi’kmaq.

In subsequent decisions, the Supreme Court has built on Sparrow, and provided specific guidance on commercial Aboriginal rights. In R v Gladstone (1996), the Court adapted the requirements in Sparrow to situations where the right in question has an expressly commercial dimension (Sparrow had involved an Aboriginal right to fish for food, social and ceremonial purposes only).

With regard to step 1 in the Sparrow test, valid “objectives” for infringing on rights can include addressing economic and regional fairness within an industry, as well as the participation of non-Indigenous groups on an industry. On step 2, the Court clarified that while the government must give priority to the Aboriginal right, this does not rise to the level of giving exclusive priority within a commercial industry after conservation concerns have been addressed, but nonetheless does require the Crown to demonstrate recognition of the existence and importance of the Aboriginal interest in the resource. The Court suggested this priority could be shown by according the Aboriginal group a share in the industry that is reflective of both the group’s proportional representation and the significance of the resource to the group. The Court also emphasized the importance of consulting with the Aboriginal group affected, as part of assessing what constitutes a priority share.

In R v Adams (1996), the Court addressed a situation where a statutory licensing regime prohibited fishing without government authorization (a license). An Indigenous person had been charged for fishing without a license. The regime was found to be unconstitutional because the licensing regime failed to recognize and accommodate the Aboriginal right to fish. Drawing directly upon Adams, the Court in Marshall 1 similarly found that the licensing regime in the Federal Fisheries Act and its regulations was unlawful because it failed to recognize or accommodate the treaty right to fish. The Court in Marshall 1 further highlighted that although catch limits could be identified to reflect a “moderate livelihood” that the government could not unilaterally impose seasonal limits – a practice that is directly at issue in the current situation. Finally, the Court has recognized in numerous decisions that Aboriginal and treaty rights belong to the community, including in Marshall 2, where the Court noted the moderate livelihood right was to be “exercised by authority of the local community,” and so their fishery is to be governed or regulated internally, not by an outside body.

The law and the current dispute

So, what does the law and these legal tests demand of the Crown in the current circumstances?

When the Marshall decisions were delivered, the Mi’kmaq were vindicated in a fight for fishing rights recognition they had been waging for seven decades. The Department of Fisheries and Oceans Canada (DFO) finally started negotiations with the Mi’kmaq and Maliseet communities in the Maritimes to support some access to the commercial fishery by issuing licenses to the communities and providing them boats and fishing gear. This has been called the “Marshall Response Initiative.” Canada did not amend the Fisheries Act or regulations to do this. Instead, Canada issued commercial licenses under its existing Aboriginal Communal Fishing Licenses Regulations.

But there was a twist. While most of the communities signed on to these agreements, DFO negotiators informed the First Nations that these agreements were not intended to be the implementation of their moderate livelihood treaty right. The agreements say they are “without prejudice” to the legal positions of DFO or the First Nations with respect to treaty rights. Rather, the implementation of the treaty-based moderate livelihood fisheries was to be addressed at another negotiating table (in each Maritime province, there are ongoing tripartite negotiation tables on Aboriginal and treaty rights).

The Mi’kmaq and the Maliseet have been attempting to negotiate for the implementation of their treaty rights ever since, but there has been little progress. Driven by frustration over the lack of progress, 12 Nova Scotia Mi’kmaq communities filed a lawsuit in 2013, seeking to require Canada’s negotiators to obtain a mandate to negotiate moderate livelihood rights. Communities agreed to put the case on hold after Canada made a commitment to finally negotiate on the fisheries, but seven years later this commitment has still not come to fruition.

Although the commercial fishing agreements offered to Maritime First Nations improved their access to the commercial fishery and have generated economic returns to the communities, the Mi’kmaq would be hard pressed to say this achieves a moderate livelihood. Communities in the region continue to struggle with intergenerational impacts of residential and day schools and other colonial policies, chronic underfunding of essential services by the Department of Indigenous Services, and racism, all of which contribute to high levels of unemployment and social assistance dependence.

In short, to date, Canada has not implemented a moderate livelihood fishery. Instead, it has provided the communities limited access to the commercial fisheries while failing to deliver on its promise to do more. In our view, this fails to meet the requirements set out by the Supreme Court on several levels. While Canada may be able to identify valid objectives to support limitations of the treaty right (step 1 of the Sparrow test), Canada must first have established an evidentiary foundation for such objectives (whether this be conservation or historical reliance by other users of the fishery).

We note that independent biologists have studied the situation, and concluded that the Mi’kmaq moderate livelihood fishery raises no legitimate conservation issues. If a valid objective was identified and supported by evidence, Canada must prove its treatment of the treaty right is in line with the honour of the Crown and the governments’ fiduciary relationship with Indigenous peoples (step 2 of the Sparrow test). Canada has never actually attempted to implement a moderate livelihood treaty right in law. There have been no amendments to the Fisheries Act or its regulations since Marshall 1. Nor has Canada attempted to show such rights any priority.

The government may argue the Marshall Response Initiative accommodated the Marshall 1 decision and gave some priority to the treaty right. However, this is dangerous ground. The DFO negotiators expressly informed the Mi’kmaq and Maliseet during the Marshall Response Initiative negotiations that the commercial agreements were not an implementation of a moderate livelihood treaty right. Had the First Nations thought these agreements were intended to define how their rights would be practiced and limited, they may not have accepted such agreements. The honour of the Crown requires that its negotiators act in good faith and there can be no sharp-dealing (making false promises or being misleading, for example). It is highly likely courts will require the Crown to stand by its words.

Even if Canada could rely on the Marshall Response Initiative as somehow accommodating some aspects of the treaty right, it is very unlikely Canada would be found to have given sufficient priority to the treaty right – part of the second step in the Sparrow test. The commercial licensing regime currently in place treats Mi’kmaq like all other stakeholders and does not accommodate the Mi’kmaq interest in the management of the fisheries. Further, Canada’s refusal to consult with the Mi’kmaq in relation to decision-making regarding the commercial fishery, or to meaningfully negotiate the implementation of moderate livelihood fishery, likely fails on the Sparrow and Gladstone requirements to engage in consultation.

Finally, the Court has been clear that treaty rights must remain meaningful, and reflect changing circumstances and what it means for technology to evolve. Their practice cannot be undermined. The current situation, where Mi’kmaq fishers fear for their lives and witness their gear being destroyed, undercuts the heart of the Marshall decision, which rested on a 250-year-old treaty promise that the Crown would ensure that the Mi’kmaq would “not be hindered from, but have free liberty” to fish, and have “free liberty” to sell their catch.

Our professional assessment is that a court would likely conclude that Canada’s current actions to regulate the Mi’kmaq moderate livelihood treaty right, found to be unconstitutional in Marshall 1, would still be found to be unconstitutional 21 years later.

Photo: Members of the Sipekne’katik First Nation load lobster traps on the wharf in Saulnierville, N.S., after launching their own self-regulated fishery on Sept. 17, 2020. THE CANADIAN PRESS/Andrew Vaughan