Hon. Brian Francis, pursuant to notice of November 3, 2020, moved:
That the Senate 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; and
That the Senate condemn the violent and criminal acts interfering with the exercise of these treaty rights and requests immediate respect for and enforcement of the criminal laws of Canada, including protection for Mi’kmaw fishers and communities.
He said: Honourable senators, I rise today to speak to the motion I have just tabled that is the result of weeks of collaboration with Senator Dan Christmas. As the only Mi’kmaw to have been appointed to this place, it is our shared privilege and responsibility to draw your attention to the ongoing struggle of the Mi’kmaw to exercise the right to fish in pursuit of a “moderate livelihood.”
Honourable colleagues, the Mi’kmaw have lived in Mi’kma’ki since time immemorial. Our traditional territory extends to areas now known as Canada’s Atlantic Provinces and the Gaspé Peninsula of Quebec. We never ceded, surrendered or sold our sovereignty over the lands and resources. Today, our nation has a population of about 170,000.
Throughout the 18th century, the Mi’kmaw entered a series of treaties with the British Crown, known as the Peace and Friendship Treaties, in a good-faith effort to end ongoing conflict. The treaties of 1760 and 1761, in particular, promised the Mi’kmaw the right to continue to hunt, fish and gather within our traditional lands. However, the British Crown and, now, Canada have not lived up to this promise.
Starting in the 19th century, the Mi’kmaw were forced onto reserves, plots of land a fraction of our traditional territories. This move left us with little to no access to the land and resources that our ancestors relied upon for survival. The Mi’kmaw were next subjected to the harsh conditions of the Indian Act, the Indian residential school system, and the Sixties Scoop, to name but a few. These colonial and assimilationist efforts have had a lasting impact on our lives. The lack of access to services and resources; gross overrepresentation in the criminal justice system and child welfare system; and high levels of unemployment, poverty and health problems in our communities are clear examples. So is the prevailing denial of Indigenous self-determination and of existing Aboriginal or treaty rights, including Aboriginal title to our traditional land.
Honourable colleagues, the Mi’kmaw have been forced to use litigation, rather than negotiations, to resolve outstanding disputes over rights. In the Marshall ruling of September 1999, the Supreme Court of Canada made a landmark decision on treaty rights in Canada.
It recognized and affirmed the Mi’kmaw have a continued right to harvest and to sell fish to obtain a “moderate livelihood” for themselves and their families, just as our ancestors had done before European contact. The right was codified in treaties made with the Crown in 1760-61 and entrenched in Section 35 of the Constitution Act of 1982.
In response to widespread protest from non-Indigenous fishermen, the court clarified a few months later that the government can regulate the exercise of the treaty right where justified on conservation or other grounds. However, it is noted that the government must first demonstrate that there is a valid legislative objective and only minimally infringe on the exercise of the treaty right. The court also said that the group affected must be consulted and given fair compensation in cases of expropriation.
Colleagues, it is important to note that there has been no justification, consultation or compensation to date for the infringements on the Mi’kmaw treaty right to fish and earn a “moderate livelihood.” It must also be remembered that the Mi’kmaw have fished sustainably for thousands of years, conservation has always been a prevailing principle.
In Marshall, the court did not define what constitutes a “moderate livelihood.” It only stated that it is not for the accumulation of wealth but to secure “necessaries” including “food, clothing and housing, supplemented by a few amenities.”
It is important we understand that the role of the federal government is to negotiate with the Mi’kmaw on how to implement the right to earn a “moderate livelihood” — and not to debate what it means to earn a “moderate livelihood.” It is the Mi’kmaw who must make this determination — and there is no one-size-fits-all answer. What is moderate to one community may not be the same for another.
Honourable colleagues, the highest court of the land ruled over 20 years ago that the Mi’kmaw have a right to fish and earn a “moderate livelihood” for themselves and their families and communities. This amounts to a small-scale fishery with commercial attributes that exist separately from the other types of Mi’kmaq fisheries, the food, social and ceremonial fisheries, which is our Aboriginal right, and the commercial and communal ones, which require federal licences and allow for the accumulation of wealth. Canada has been unwilling to work with the Mi’kmaq to implement this inherent treaty and constitutionally protected right.
The current approach has been to demand that the Mi’kmaq, who exercise their right to earn a moderate livelihood, do so in accordance with federal policies and regulations applied to the commercial industry. Those who have refused have had their gear and traps seized by departmental officials or have been fined, arrested and charged. A few have even faced violence. These actions directly infringe on our right to fish and earn a moderate livelihood.
What continues to be ignored is that the Mi’kmaq are exercising a constitutional right that supersedes the Fisheries Act and the Fisheries Act regulations. Rather than working directly with the Mi’kmaq to find a lasting solution to the dispute, successive federal governments have focused on increasing and diversifying the participation of the Mi’kmaq in the commercial fishery, which has helped strengthen economic self-sufficiency but does not amount to a rights-based fishery.
In 2017, for example, Fisheries and Oceans Canada began to negotiate the so-called rights and reconciliation agreements, which offer only marginally greater access to the commercial fisheries. These agreements have been widely rejected by the Mi’kmaq because signing onto one would mean not being able to implement a rights-based fishery for a certain number of years.
Honourable colleagues, the violent and criminal actions committed against Mi’kmaq fishers and communities in southwest Nova Scotia are extremely upsetting. There is absolutely no justification for these acts. The commercial fish harvesters involved in the cutting of traps, the destruction of property and all other criminal activities need to be held accountable. The government and policing partners should also be held accountable for failing to act swiftly to protect the lives and property of the Mi’kmaq fishers and their communities, as well as for continuing to disregard rights that are enshrined in law. The Mi’kmaq have been let down.
The entire situation has brought back bad memories of the Burnt Church crisis, another dispute over Mi’kmaq rights that took place between 1999 and 2002. It is all still emotional and volatile, but I hope it does not escalate further for the safety and well-being of all.
A positive sign is that a few Mi’kmaq communities that have launched their own moderate livelihood lobster fisheries using their own management plans have been proceeding without intimidation or coercion, which is a sign of mutual respect and cooperation that has prevailed for decades. It gives me hope that other Mi’kmaq communities planning to develop their own fisheries management plans to implement and advance their rights will also be able to proceed peacefully on the waters.
Honourable colleagues, non-Indigenous commercial harvesters continue to raise arguments about conservation. This concept has become no more than a political tool to infringe on rights. The presence of the Mi’kmaq in the commercial fisheries is marginal in comparison. Science has supported the position that the livelihood fishery will not harm conservation. The unsupported fear-mongering must stop. The moderate livelihood fishery is a small-scale one. Its purpose is to meet adequate standards of community nutrition and economic well-being. This type of fishery poses no real threat to conservation or the livelihoods of other users of the resources.
The management plans that regulate the moderate livelihood fishery are based on the long-standing Mi’kmaq philosophy of Netukulimk, which governs the sustainability of our harvest. It is based on having respect and gratitude for all the natural resources provided by the Creator. This code of conduct teaches Mi’kmaq to take only what is needed for the well-being of the individual and community. We do not seek to over-exploit or deplete natural resources. We are keepers of traditional knowledge and sacred protectors of the land and resources. We have a long history of sharing with our neighbours and friends and will continue to do so.
Honourable colleagues, I want to speak briefly now about the importance of honour, a value by which to measure ourselves and our actions. The honorific title of “honourable,” for example, requires that we conduct our dealings with each other and others with dignity, honour and integrity. The constitutional principle of the honour of the Crown, which is central to reconciliation, does much the same for the federal government. The principle arises from the assertion of the sovereignty of the Crown over Indigenous people and the control of land and resources that were formerly under their control. Its purpose is to reconcile pre-existing Indigenous societies with this assertion of Crown sovereignty. The principle establishes an obligation on the Crown to act honourably in all dealings with Indigenous peoples, including by moving diligently in the implementation of Aboriginal and treaty rights under section 35 of the Constitution Act.
The failure to live up to this principle is at the centre of the current dispute over Mi’kmaq fishing rights in Canada. The protection of our Aboriginal and treaty rights is a matter of sacred and binding trust. The Mi’kmaq have been willing to engage in good-faith negotiations for the recognition and implementation of our treaty rights, but we have never had a willing partner. The take-it-or-leave-it approach of the last two decades has to end. A new and better way forward is desperately needed, one that is based on co-development and co-management of the resource.
Honourable colleagues, we are dealing with a matter of honour. If Canada wants to uphold a reputation as a nation of honour, it must start to honour its obligations to the First Peoples who inhabited this land.
The government has promised a nation-to-nation relationship based on the recognition of Indigenous rights, respect, cooperation and partnership. These words mean little if they are not soon followed by concrete action and results.
Honourable colleagues, the passage of this motion would make clear that the honourable men and honourable women in this chamber unequivocally affirm and honour the inherent treaty and constitutionally protected right of the Mi’kmaq to earn a moderate livelihood from fishing and expect the federal government to do the same.
It would also express our collective condemnation for the violent and criminal acts directed at Mi’kmaq fishers and communities attempting to exercise their rights.
Lastly, it would let relevant authorities know that we expect them to equally and fairly protect the life and property, as well as rights of all involved in the dispute, including the Mi’kmaq, and that anything less will not be tolerated.
Honourable colleagues, I encourage you to expeditiously join the debate and give your unanimous support to this important motion.
Wela’lioq. Thank you.