First Nations leaders call for clear path forward on rights-based fisheries

Twenty-five years after the Supreme Court Canada affirmed the right of Maritime First Nations to catch and sell fish, one leader says they need to come together and better address moderate livelihood fishing.

Kerry Prosper, a Mi'kmaw elder and former chief of Paqtnkek in Nova Scotia, is calling on Mi'kmaq to acknowledge the seven districts and their councils and work under them to better relationships between themselves and with the fish and water.

"We've been separated because now with the constant resistance by DFO and the fishermen; we're down to having to individually try our own way," Prosper said.

In September 1999, Canada's highest court overturned Donald Marshall Jr.'s conviction for fishing and selling eels out of season and without a licence in Pomquet Harbour, near Paqtnkek.

Marshall, a Mi'kmaw man from Membertou First Nation in Nova Scotia, fought the case on the basis that the Peace and Friendship Treaties of 1760-1761 granted him the right to fish and sell eels. The Supreme Court ruling affirmed the right of Mi'kmaq, Wolastoqiyik and Peskotomuhkati peoples to fish, hunt and gather to earn a "moderate livelihood."

The court later clarified the rights affirmed in the decision could be subject to regulation in the case of conservation concerns and other public interests. 

Reflecting on the challenges of recognizing First Nations fishing rights, Prosper pointed to the Sparrow Decision in 1990, which affirmed rights particularly in the context of fishing for food, social or ceremonial purposes. 

He said at that time First Nations people were hopeful about exercising their fishing rights, but were met by apprehension from some non-Indigenous fishermen about the perceived impact of a rights-based fishery on commercial fishing.

"I think Donald Marshall was really acting upon defining what social fishing was," Prosper said. 

"He wanted to make a living ... and he just wanted to be by himself and exercise that treaty agreement that he had a right to fish and absolutely did."

In response to the Sparrow decision, the Aboriginal Fishing Strategy was developed in 1992 by the Department of Fisheries and Oceans (DFO) to develop a food, social and ceremonial fishery that would be under DFO's jurisdiction. 

Ongoing struggle for implementation

Despite the rulings, efforts to implement rights-based fisheries across Wabanaki territory remain hindered by the lack of a cohesive framework, with notable conflicts arising in Esgenoopetitj in New Brunswick in 2000 and more recently in Sipekne'katik in Nova Scotia.

On Tuesday's anniversary of the Marshall decision, Assembly of First Nations National Chief Cindy Woodhouse Nepinak called for all levels of government to honour the Supreme Court's decisions about treaty rights. 

Woodhouse Nepinak said the journey to full implementation of these rights remains incomplete, leading to ongoing economic disparities and conflicts between rights-based and licence-based fish harvesters.

"It is important that we not only respect these rights, but fully integrate them into fisheries management and economic opportunities for First Nations," she said. 

A spokesperson for the minister of Fisheries and Oceans said in a statement there is "hard work ahead" in implementing those rights. 

"We must continue our work in partnership with Indigenous communities to uphold treaty rights as part of our commitment to sustainable, orderly, and prosperous fisheries," the statement said.

The statement said there are two common objectives among everyone involved in fisheries: conservation and preservation of the ocean environment, and well-managed fisheries to allow harvesters to gather without interference.