Kody Blois
Kody Blois
Member of Parliament for Kings—Hants
Letter to the Minister of Fisheries, Oceans and the Canadian Coast Guard about Moderate Livelihood Fishing
September 22, 2020

Hon. Bernadette Jordan, P.C., M.P.
Minister of Fisheries, Oceans and the Canadian Coast Guard
House of Commons
Ottawa, ON K1A 0A6

Dear Honourable Minister,

I am writing in relation to the ongoing events at Saulnierville in Digby County, N.S., and Sipekne’katik First Nation, a community located in my riding of Kings-Hants.

Following the federal election in October 2019, Chief Sack and the Sipekne’katik Council signaled to me their desire to implement their moderate livelihood treaty rights as per the Marshall decision of 1999. Since that time, I have engaged with your Ministerial staff and I am aware that there have been ongoing negotiations and dialogue with all Mi’kmaq communities in Nova Scotia through Kwilmu’kw Maw-klusuaqn (“KMKNO”) and directly with Sipekne’katik.

The implementation of the moderate livelihood treaty right has important economic and social benefits for indigenous communities across Atlantic Canada. I want to be clear that I am in full support of Sipekne’katik in their efforts to realize their moderate livelihood rights for the benefit of their community. The long-standing issue is implementation of the right. R v. Marshall [1999] 3 S.C.R. clarified the communal rights available to Mi’kmaq communities by virtue of the Peace and Friendship Treaties of 1760-1761. The subsequent decision in Marshall II R v. Marshall [1999] 3 SCC 533 provided additional clarity around the ability for the Government of Canada to regulate moderate livelihood rights for reasons of conservation or other substantial public policy objectives. Paragraph 2 of the SCC decision reads:

[2] …Those opposing the motion object in different ways that the Coalition’s motion rests on a series of misconceptions about what the September 17, 1999 majority judgment decided and what it did not decide.  These objections are well founded.  The Court did not hold that the Mi’kmaq treaty right cannot be regulated or that the Mi’kmaq are guaranteed an open season in the fisheries…

Furthermore, the Court in Marshall, in discussing whether the application of licenses could be imposed on treaty rights referenced the Supreme Court decision in R. Nikal [1996] 1 SCR 1013 that said:

[27] … It is said that a license by its very existence is an infringement of the aboriginal right since it infers that government permission is needed to exercise the right and that the appellant is not free to follow his own or his band’s discretion in exercising that right.

This position cannot be correct.  It has frequently been said that rights do not exist in a vacuum, and that the rights of one individual or group are necessarily limited by the rights of another.  The ability to exercise personal or group rights is necessarily limited by the rights of others. The government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended…

Since the Marshall decision successive federal governments have done good work in advancing the interests of indigenous communities in the fisheries. The Marshall Response Initiative from 2000-2007 provided $354 million for commercial access and resources for Mi’kmaq communities to develop their fisheries.

In 2007 DFO launched the Atlantic Integrated Commercial Fisheries Initiative which provides funding and support to Marshall communities to build the capacity of their communal commercial fishing enterprises and to strengthen community economic self-sufficiency. In 2017, our government signed two time-limited Rights Reconciliation Agreements to enable the moderate livelihood rights of Mi’kmaq and Maliseet communities in New Brunswick and Quebec.

As aforementioned, I know your work is continuing in ways to negotiate and consult with Mi’kmaq communities on the recognized treaty rights. As outlined in Marshall this is recognized in many decisions as a preferred approach:

[22] …As this and other courts have pointed out on many occasions, the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi’kmaq rather than by litigation…

While I support the ongoing work all sides are doing in trying to implement recognized rights, I ask that you consider what regulatory measures the Government of Canada could establish to provide greater certainty for both indigenous and non-indigenous harvesters in how the moderate livelihood right can be exercised. The Supreme Court has given the Government of Canada explicit ability to create regulatory measures for conservation or other substantial public objectives. Indeed, these measures must accord to the test cited in R v. Badger [1996] 1 SCR 771, which broadly includes; is there a valid legislative objective? Is the restriction of the right in question minimally impairing? Whether the Crown’s duty to consult has been met?

I understand the nuances and complexities of creating regulatory measures to satisfy this test, but as outlined in the preamble of Marshall II, the Court provides potential areas of where justification could be met:

The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non‑aboriginal users of the resource.  The regulatory authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups.  Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights.  The Minister has available for regulatory purposes the full range of resource management tools and techniques, provided their use to limit the exercise of a treaty right can be justified on conservation or other grounds.

My concern is that the situation we are seeing unfolding in Southwestern Nova Scotia is hurting the movement towards true reconciliation between indigenous and non-indigenous Canadians. Indigenous communities have begun to implement their own regulatory regime under the guise that one does not exist because of inaction by successive federal governments. The ambiguity and uncertainty around how and to what extent indigenous fishers can exercise their rights, particularly in “off-season” creates tension between commercial harvesters and those seeking to simply uphold their treaty rights. This “vacuum” of uncertainty has at the very least contributed towards the violence, intimidation, racist comments, and allegations of impropriety from both “sides” involved. Let me be clear, there is no excuse for any type of violence, and I join those who have already denounced this type of behavior. I believe it is in society’s interest to limit a culture of “us” versus “them” as it relates to the implementation of this right. The Supreme Court had contemplated the introduction of regulatory limits by the Government of Canada. The inclusion of a regulatory framework of how the moderate livelihood right can be exercised under the Fisheries Act could be justified on the grounds of conservation while avoiding social discord between Mi’kmaq and commercial fishers. This would be a laudable public policy objective.

Minister, I appreciate that this is a long-standing issue that pre-dates your time in office. However, I have a desire to ensure the indigenous communities I represent can exercise their treaty rights in a peaceful manner. At the same time, I recognize the concerns of commercial fishers whose livelihood is tied to a finite resource that needs to be managed for future sustainability, and who are seeking greater clarity on the limits, if any, that are applicable to moderate livelihood rights. My hope is that we can strike a balance in fully implementing moderate livelihood rights while ensuring the conservation of species and providing clarity to all those involved in Nova Scotia’s fisheries. I appreciate your consideration.

Best regards,
Kody

Kody Blois, M.P.
Kings–Hants

cc Hon. Carolyn Bennett

 

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