Image: Nova Scotia lobster boats. Via NSPaul, Wikimedia Commons.
Written by Inroads Contributors Ian Peach and David Perley
The year 2021 was marked by conflict between the federal Department of Fisheries and Oceans (DFO) and Mi’kmaq and Wolastoqi (formerly commonly known as Maliseet) lobster fishers in the Maritime provinces, provoked by DFO’s failure to respect treaty rights. Under the 18th-century Peace and Friendship Treaties between the Wabanaki Confederacy – which includes the Mi’kmaq and Wolastoqi nations – and the British Crown, those nations have a treaty right to fish “as usual” or “as formerly.” The Wabanaki Confederacy agreed to share the use and “fruits” of their lands with the British, but not to transfer control or ownership. In summary, DFO persists in claiming the right to unilaterally regulate a fishery that does not belong to the federal Crown. The department needs to sit down with Mi’kmaq and Wolastoqi fishers and negotiate a comanagement system, based on a mutual commitment to sharing.
On March 3, 2021, Bernadette Jordan, then Minister of Fisheries and Oceans, announced that her department would work with Wabanaki communities to develop Moderate Livelihood Fishing Plans. Jordan promised to “license activities under these fishing plans, opening up the ability for First Nation harvesters to fish and sell their catch, and the opportunity to earn a moderate livelihood.” But she also announced that a key element of these fishing plans would be that the Indigenous fishery would have to operate within the commercial fishing season. Her justification was that this would help ensure “that fish species are harvested sustainably and maintain orderly, predictable, and well-managed fisheries.”¹ Under the treaties, this was not up to DFO to decide.
Perry Bellegarde, at the time Assembly of First Nations (AFN) National Chief, wrote to Prime Minister Trudeau two days after the Minister’s announcement, demanding that the federal government restart negotiations with the Nova Scotia Mi’kmaw. He described Jordan as having “badly mismanaged” the matter because, instead of consulting meaningfully with the Mi’kmaw, she was trying to impose a policy on them. He also called out DFO’s plan to increase federal enforcement of this policy as “overtly hostile actions,” and contrasted this policy with the federal government’s public commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples.²
Mike Sack, Chief of Sipekne’katik First Nation, a Mi’kmaw First Nation in Nova Scotia, said that his community’s fishery would continue to operate outside DFO seasons, and he urged all Mi’kmaw First Nations to reject the federal position.³ PEI Mi’kmaw chiefs also denounced the federal government’s plan.⁴ PEI Senator Brian Francis commented that the federal position “will not reduce the potential for hostility or even violence against the Mi’kmaq but rather increase the surveillance and policing of our fishers and communities … I am left deeply troubled and concerned that the Mi’kmaq and/or other First Nations will be forced to once again resort to the courts to ensure our rights are honoured. That, to me, is not how we achieve real reconciliation.”⁵
Senators Francis and Dan Christmas, along with Liberal MP Jaime Battiste, had earlier recommended that DFO create an Atlantic First Nations Fishing Authority to protect the treaty rights of Atlantic First Nations. Minister Jordan had indicated that she was open to exploring the idea. But the March announcement showed that this openness had given way to DFO’s traditional culture of unilateralism.
In early August, Canadian Press reported that several Mi’kmaq-owned lobster boats were cut loose from their moorings at a Nova Scotia wharf and their catch taken. Chief Sack alleged that the boats were cut loose to damage the Mi’kmaq’s property and intimidate their fishers: “This is unfortunately what we have to deal with, harassment and property damage with no recourse or substantive protection to safeguard our people.”⁶ Later that month, DFO officials arrested Chief Sack, seized his lobster traps and detained him for 45 minutes. The reason for the arrest was the decision of the Sipekne’katik to expand their self-regulated “treaty fishery,” which would begin before the non-Indigenous lobster fishing season opened.⁷
Chief Sack was undeterred in response to his detention. He said that his First Nation would operate under the guidelines of its own fisheries management plan, based on sound conservation principles. Minister Jordan called the “unauthorized” First Nations fishery “concerning” and declared that DFO would enforce the federal Fisheries Act. Chief Sack retorted, “It’s unfortunate they come in, push their weight around and do what they want and aren’t held accountable. For me, it’s systemic racism.”⁸
Wolastoqi chiefs in New Brunswick have repeatedly decried harassment and aggressive intimidation of First Nations fishers by DFO conservation officers, such as their seizure in September 2021 of a small boat owned by members of the St. Mary’s First Nation. The chiefs said conservation officers have stated that “their instructions are to focus on Indigenous fishers.”⁹
Back to the treaties
To really understand the rules that are meant to govern resource management on the territories of the member nations of the Wabanaki Confederacy,¹⁰ one should not begin with what the Supreme Court of Canada has said about treaties but with the Peace and Friendship Treaties themselves. In R. v. Sparrow, the Court invented the idea that the Crown could interfere with an Aboriginal right to fish without Indigenous consent. In R. v. Marshall, the Court invented the idea that Indigenous commercial fishers are limited to earning a “moderate livelihood.”¹¹
But in the Peace and Friendship Treaties, the British made a commitment to allow the nations of the Wabanaki Confederacy to fish “as usual”: in other words, to fish and manage the fishery for the benefit of the people of the nations of the Wabanaki Confederacy as they had always done prior to contact. The limitations on the rights of Indigenous peoples that the Supreme Court of Canada created in Sparrow, Marshall and other cases are not consistent with the terms of the treaties agreed to by the nations of the Wabanaki Confederacy and the British Crown.
As the Wabanaki Nations, never conquered, were parties to treaties with the Crown, these treaties are constitutional documents – constitutive of the terms on which the relationship between the Wabanaki Nations and the British Crown was established and, therefore, the source of whatever rights the Crown has in Wabanaki territory. The Supreme Court of Canada has no more authority than any other institution to change these terms without the consent of the signatories.
Wabanaki people view the Peace and Friendship Treaties as solemn international agreements between the Wabanaki Nations and the British Crown. As historian Sarah Isabel Wallace explains, the French readily established alliances with the Wabanaki that emphasized peace and collaboration in trade.¹² As a consequence of these alliances, the Wabanaki Confederacy fought on the side of France against English colonial forces in the late 17th and early 18th centuries.
By the summer of 1725, both the British and the Wabanaki wanted to end the escalating violence. In December 1725, the Penobscot and some other allied nations in the northeastern United States signed what became known as the Treaty of Boston (or Dummer’s Treaty). The following year, the Mi’kmaq and Wolastoqiyik (as well as the Abenaki and Passamaquoddy in Massachusetts and New Hampshire) signed essentially the same agreement, Mascarene’s Treaty. These treaties, along with others signed later in the 18th century, became known as the Peace and Friendship Treaties.
The Wabanaki consider the treaties to be sacred agreements; in the Wolastoqey language, treaties are referred to as “kci lakutuwakonol,” which means “making sacred relations as long as the sun and moon shall endure.” The Supreme Court of Canada correctly ruled that the Peace and Friendship Treaties are just as valid today as they were in the 18th century. They are timeless.
In the worldview of the Indigenous signatories, the British Crown became a “family member” of the Wabanaki Confederacy on signing the treaties. The British therefore joined the Wabanaki family in accordance with Wabanaki law. As family members, they were expected to coexist in Wabanaki territory and live in peace and harmony with the rest of their Wabanaki family. This is incompatible with unilateral infringement “justified” under a test imposed by a court obtaining its authority from British-derived law.
Wabanaki Elders have shared stories of their hunting activities within Wabanaki hunting territory. A typical hunting activity would include harvesting medicinal plants, securing materials for lodges and birchbark canoes, and following spiritual protocols for the preparation of the food supply provided by specific game found in the territory, such as moose and deer.
Wabanaki Elders further emphasized that the principle of the conservation of resources was an important aspect of hunting, fishing and fowling activities. One hunted and fished only what one needed for clan survival. Each generation was expected to save resources for future generations. This way of life ensured the survival of each succeeding generation. For the Wabanaki, their traditional lands and rivers encompassed a spirit which was tightly connected to the people. This was their identity as Wolastoqiyik, Mi’kmaq, Peskotomuhkati, Penobscot and Abenaki. The Wabanaki honoured all of creation and, in particular, traditional lands and rivers because they provided all that was required for survival.
The British, too, understood that these were the terms of the Peace and Friendship Treaties. At the treaty negotiations in November 1720, the British Treaty Commissioners, on behalf of their Government, told the Wabanaki representatives that “the English have no design to take your country or any of your lands from you; or to deprive you of any of your just Rights or Privileges.”¹³
The English text of the treaties demonstrates that these treaties are treaties of peace and alliance, not agreements to cede the lands or the political sovereignty of the Wabanaki to the Crown. In the English text of the Treaties of 1725 and 1726, for example, the Wabanaki Nations agreed to
forbear all Acts of Hostility Injuries and Discords towards all the Subjects of the Crown of Great Britain, & not offer the least hurt Violence or Molestation to them or any of them in their Persons or Estates, But will hence forward hold & maintain a firm and Constant Amity and Friendship with all the English and will never Confederate or Combine with any other Nation to their prejudice … That His Majesties Subjects the English shall and may peaceably and Quietly Enter upon, Improve & forever Enjoy … their rights of Land and former Settlements Properties & possessions within the Eastern parts of the said Province of the Massachusetts Bay … without any Molestation or Claims by us, or any other Indians.
In exchange, the British promised:
Saving unto the Penoscot, Narridgewalk And other Tribes within His Majesties Province aforesaid and their Natural descendants respectively All their Lands, liberties & properties not by them Conveyed or sold to, or possess’d by any of the English Subjects or aforesaid As also the Privelege of Fishing, Hunting & Fowling as formerly.
The Treaty of 1752 reaffirmed the relationship of peace and friendship, stating that the terms of the treaties of 1725 and 1726
are hereby from this time forward renewed, reiterated, and forever Confirmed … That all Transactions during the Late War shall on both sides be buried in Oblivion with the Hatchet, And that the said Indians shall have all favour, Friendship & Protection shewn them from this His Majesty’s Government … It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting and Fishing as usual and that if they shall think a Truck house needful at the River Chibenaccadie … they shall have the same built and proper Merchandize, lodged therein to be exchanged for what the Indians shall have to dispose of and that in the meantime the Indians shall have free liberty to bring to Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage.
The 1760–61 treaties also provided:
No person or persons belonging to the said Tribes shall at any time hereafter aid or Assist any of the Enemies of His most Sacred Majesty King George the Second or of his Heirs and successors nor shall hold any Correspondence or Commerce with any such His Majesty’s Enemies in any way or manner whatsoever and that, for the more effectually preventing any such Correspondence and Commerce with any of His Majesty’s Enemies, the said Tribes shall at all times hereafter Traffic and barter and exchange Commodities with the Managers of such Truckhouses as shall be established for that purpose by his Majesty’s Governors of this Province at Fort Frederick or elsewhere within the Said Province and at no other place.
While there are differences between the terms of the agreements negotiated with the Wabanaki Nations as understood by those nations and the terms recorded in English, it is clear from both understandings that the Peace and Friendship Treaties did not impede the freedom of the Wabanaki peoples to hunt, fish, trap and gather as they had always done. Nor did they transfer what the common law would understand as “ownership” of their territories and the fruits of those territories to the British Crown.
Rather, the treaties established and confirmed the military alliance between the Wabanaki and the British, and provided that British settlers who had already occupied lands would be allowed to continue to occupy those lands while the rest of the Wabanaki territory not sold to British settlers would remain Wabanaki land. The treaties guaranteed the Wabanaki the right to continue to hunt, fish, trap and gather on their territories as they had always done. The later treaties also promised that the Wabanaki would trade all of the goods that they wished to sell to the British and that “truckhouses” (trading posts) would be established to allow them to do so, so that they did not trade with anyone else.
As the Supreme Court of Canada noted in the 1985 case of Simon v. the Queen,
The Treaty was entered into for the benefit of both the British Crown and the Micmac (sic) people, to maintain peace and order as well as to recognize and confirm the existing hunting and fishing rights of the Micmac … The Treaty, by providing that the Micmac should not be hindered from but should have free liberty of hunting and fishing as usual, constitutes a positive source of protection against infringements on hunting rights … Article 4 of the Treaty appears to contemplate hunting for commercial purposes when it refers to the construction of a truck house as a place of exchange and mentions the liberty of the Micmac to bring game for sale.¹⁴
As well, the Court stated, “None of the Maritime treaties of the eighteenth century cedes land … The treaty was an exchange of solemn promises between the Micmacs and the King’s representative entered into to achieve and guarantee peace. It is an enforceable obligation between the Indians and the white man.”¹⁵
Thus, logic dictates that the terms of the treaties prevent the Crown from regulating the hunting, fishing, trapping and gathering of the Wabanaki, as such regulation would “hinder” their freedom to hunt, fish, trap and gather “as usual.” Only the Wabanaki have the authority to regulate the hunting, fishing, trapping and gathering of Wabanaki people. Indeed, the Treaty of 1752 says that the Wabanaki can sell anything that they have to dispose of to the British at truckhouses or, until truckhouses are built, at Halifax or any other settlement “where they shall have liberty to dispose thereof to the best Advantage.”
A way forward: Fisheries comanagement
The Wabanaki could simply rely on the terms of the Peace and Friendship Treaties and insist that, since their right to fish as they always had, unhindered by the Crown, is primary, the non-Indigenous commercial fishery must accommodate the Indigenous treaty fishery, not the other way around. The treaty texts (including the English texts) suggest that this is a perfectly valid argument. Furthermore, the history of Indigenous fishery litigation in the United States Pacific Northwest presents an interesting parallel suggesting that such an argument might be worth making in seeking a negotiated solution.
In February 1974, Federal District Judge George Boldt decided a legal challenge by the U.S. federal government against the state of Washington designed to protect the treaty fishing rights of the First Nations that fished in Puget Sound. Judge Boldt decided that the treaty provisions authorizing the First Nations to fish “in common with the citizens of the (Washington) territory” meant that the First Nations had the right to catch half of the harvestable salmon and steelhead trout in their traditional fishing grounds beyond their reserves and that the treaties guaranteed the protection of the salmon’s habitat from destruction.¹⁶
Washington state challenged the decision all the way to the U.S. Supreme Court, but in 1979 the Supreme Court upheld Judge Boldt’s decision, with its interpretation of the 1853 Stevens Treaty that gave the First Nations significant control over their traditional fishery grounds.¹⁷ This decision led the First Nations of the Pacific Northwest to establish the Northwest Indian Fisheries Commission to regulate the treaty fishery in an orderly way and act as the voice for the Northwest First Nations in fisheries management and conservation matters.
Ultimately, this Commission led to the establishment of fisheries comanagement, first through Fishery Advisory Boards and finally, in 1983, through the establishment of a formal fisheries comanagement regime between the state government and the First Nations. In establishing such a regime, the state government acknowledged the First Nations’ right and capacity to regulate their fishery.¹⁸
In Atlantic Canada, to retain the amity that is at the heart of the Peace and Friendship Treaty relationship and avoid conflict, the treaty parties need to recognize that they have an obligation to consult with each other. Consultation should be required for any activities that each party wishes to undertake that could harm the other or that, if undertaken by both parties in an uncoordinated way, could harm the land, water or air (along with beings that are part of the land, water or air). In this way, the parties would come to shared regulatory decisions.
For the Wabanaki Nations, the U.S. v. Washington decision could be a useful example supporting insistence that the federal government create a fisheries comanagement regime, if Ottawa persists in engaging in an unproductive dispute. Wouldn’t it be better, though, for the federal government to simply emulate fisheries management in Washington state in the aftermath of U.S. v. Washington and establish a genuine comanagement regime through negotiation?
This would certainly be the approach most consistent with the federal Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples. Litigation guideline #3 in this directive states,
Litigation is by its nature an adversarial process, and cannot be the primary forum for broad reconciliation and the renewal of the Crown-Indigenous relationship. One of the goals of reconciliation in legal matters is to make conflict and litigation the exception, by promoting respectful and meaningful dialogue outside of the courts … Working with the client and other departmental counsel, counsel must develop a coordinated approach with the aim of achieving a resolution that avoids litigation.¹⁹
According to litigation guideline #4, “Counsel’s primary goal must be to resolve the issues, using the court process as a last resort and in the narrowest way possible … Counsel must work with client departments and agencies to develop problem-solving approaches that promote reconciliation. These approaches should include alternative dispute resolution processes such as negotiations and mediations.”²⁰
In regulating the use of the fruits of their territory, the Wabanaki may well have a duty to consult with the officials of the Crown, as do the officials of the Crown with the Wabanaki, and negotiate agreements on how the two parties will fairly and sustainably share the fruits of Wabanaki territory to abide by the relationship of peace and friendship that was at the root of the Peace and Friendship Treaties.
This approach would also be consistent with how the Wabanaki traditionally made decisions about how the fruits of the lands, waters and air of Wabanaki territories were to be used. Traditionally, Wabanaki clans were assigned hunting territories by the grand council, consisting of the Grand Chief, village Chiefs, Elders and Clan Mothers (or in some cases, by village Chiefs, Elders and Clan Mothers after discussion). Regardless of which group made an individual decision, it was always emphasized that conservation of resources such as game, fish, medicines and wildlife in general had to be considered. This was “Seventh Generation Thinking” or, in Wolastoqey, “‘Ciw Weckuwapasihtit.” This traditional process of managing resource use would be a valuable guide to modern sustainable resource management processes.
The best approach to managing the Atlantic fishery would be for the Mi’kmaq and Wolastoqiyik to negotiate a joint process for determining catch limits and seasons with the federal government. In this way, overfishing as a consequence of uncoordinated regulation of the East Coast fishery could be avoided. Such a joint process will require the Mi’kmaq and Wolastoqiyik to have the resources necessary to allow them to contribute to the comanagement process based on evidence about sustainable harvesting levels, for example.
From existing Canadian jurisprudence on the Crown’s duty to consult and accommodate Indigenous interests, we know that a party’s duty to consult another party does not give that other party a right of veto over the consulting party’s chosen course of action. Nor does the treaty relationship give the federal government a right to veto the Mi’kmaq and Wolastoqey governments’ decisions about managing the Mi’kmaq and Wolastoqey fishery. It certainly does not give them the power to impose licensing regimes, seasonal restrictions and “moderate livelihood” catch limits on Mi’kmaq or Wolastoqi fishers. Thus, DFO’s current attempts to restrict the Mi’kmaq and Wolastoqey lobster fishery are, simply, inconsistent with the terms of the Peace and Friendship Treaties, which are – let us not forget – part of the Constitution of Canada.
Ian Peach is a constitutional law and public policy scholar who has worked as a policy adviser and negotiator in federal, provincial and territorial governments across Canada. David Perley is cofounder of the Wolastoq Lanquage and Culture Center, Tobique First Nation, New Brunswick.
Notes
¹ Fisheries and Oceans Canada, Minister Jordan Issues Statement on a New Path for First Nations to Fish in Pursuit of a Moderate Livelihood, press release, March 3, 2021.
² Olivia Stefanovich, National Chief Bellegarde Urges Ottawa to Rethink Mi’kmaq Fisheries Decision, CBC News, March 5, 2021.
³ Ibid.
⁴ PEI Mi’kmaw Chiefs Denounce DFO’s ‘Moderate Livelihood’ Fishery Plan, CBC News, March 4, 2021.
⁵ Stefanovich, “National Chief Bellegarde Urges Ottawa.”
⁶ Canadian Press, RCMP Investigating after Mi’kmaq Lobster Boats Cut Loose from Wharf in N.S., CTV News Atlantic, August 6, 2021.
⁷ Sipekne’katik Chief Mike Sack Arrested, Traps Seized as treaty Fishery Begins Its Season in N.S., CBC News, August 16, 2021.
⁸ Danielle Edwards and Michael Tutton, First Nation Chief Detained by Fisheries Officers in N.S. after launching Fishery, CTV News Atlantic, August 16, 2021.
⁹ John Chilibeck, “Wolastoq Chiefs Say First Nations Boat Seized, Cry Foul,” Fredericton Daily Gleaner, September 1, 2021.
¹⁰ The Confederacy includes the Peskotomuhkati (previously commonly known as the Passamaquoddy) as well as the Mi’kmaq and Wolastoqiyik.
¹¹ R. v. Sparrow, 1 SCR 1075; R. v. Marshall, 3 SCR 456. See especially Sparrow, pp. 1109, 1114, 1119; Marshall, paragraphs 7, 59, 6. According to the Court in Sparrow, governments can justify interference with aboriginal and treaty rights if they have a “compelling and substantial” objective, implemented in a manner consistent with the “honour of the Crown”, including by minimizing the Crown’s interference with the Aboriginal right and by consulting with the affected Aboriginal peoples before interfering with the right. Notably, these requirements are not the same as consent.
¹² Sarah Isabel Wallace, Peace and Friendship Treaties, Canadian Encyclopedia.
¹³ Paul & Gaffney and Associates, As Long as the Sun and Moon Shall Endure: A Brief History of the Maritime First Nations Treaties, 1675 to 1783 (Elsipogtog, NB: Big Cove Education Program, 1987).
¹⁴ 2 SCR 387, pp. 401–3.
¹⁵ Ibid., p. 410. Of course, as the Wabanaki were never conquered and never ceded their land to the Crown, it is logically impossible for Crown title to be the underlying title on Wabanaki territory and the “aboriginal title” of the Wabanaki to be merely a burden on underlying Crown title, as Lamer CJC decided was the case in Delgamuukw v. British Columbia, at para. 145. If Wabanaki sovereignty over Wabanaki territory (what the common law would call “title”) predated European settlement of Wabanaki territory and was never ceded to the Crown, logically it must be the underlying title and Crown title is a burden on Wabanaki title, not the other way around.
¹⁶ Jovana J. Brown, “Treaty Rights: Twenty Years After the Boldt Decision,” (1994) Wicazo Sa Review, 10:2, 1–16, at p. 2.
¹⁷ Ibid., p. 2.
¹⁸ Ibid., pp. 3–4.
¹⁹ Department of Justice Canada, The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples (Ottawa: Author, 2018), p. 10.
²⁰ Ibid., pp. 10–11.
