The Status of Indigenous Fishing Rights in Canada
The status of indigenous fishing rights in Canada and the extent to which they should be regulated has been a contentious issue spanning centuries. With implications involving autonomy, sovereignty, the rule of law, environmental conservation, and economic regulation of one of Canada’s most vital industries, it is perhaps unsurprising that commercial fishing remains a tense topic with a contentious debate. Indigenous communities and their supporters assert an absolute right to continue long-standing fishing practices integral to their cultures, while opposition demands curtailing such rights for both environmental considerations and to prevent allegedly unfair competition with non-indigenous commercial fishers subject to varying levels of government regulation. This blog post aims to explain the historical context of indigenous fishing rights in Canada while pointing out some of the flaws in the current approach and important considerations moving forward.
Formal discussions on fishing rights between indigenous communities and colonizers first began with the signing of Peace and Friendship treaties between 1725 and 1779.[1] These treaties were established to foster peaceful relations and facilitate trade.[2] In signing, indigenous communities agreed to accept existing colonial settlements and settlements to be lawfully established.[3] For their part, colonists agreed not to interfere with indigenous fishing, hunting, planting, and “other lawful activities.”[4] However, important provisions of the treaties remained undefined, including a definition of what makes a settlement lawfully established, or the location and size of proposed indigenous hunting and fishing grounds.[5] As a result, the treaties were often subject to divergent interpretations by each side, leading to misunderstanding and a lack of trust, which continues to impact relations today.[6]
Later, a series of important court cases offered further recognition of indigenous fishing rights. The first case was R. v. Sparrow, decided in 1990, which recognized the rights of First Nations to fish for food, social and ceremonial purposes, but did not address commercial fishing.[7] The court held that the government had a constitutional duty to consult with First Nations regarding any actions that could adversely affect their fishing rights.[8] Additionally, the court established a list of criteria to determine if an existing indigenous practice is considered a right and, if so, how the government may infringe upon that right for the public interest, holding that no indigenous right is absolute.[9]
Later the court decided R. v. Van der Peet in 1996, which stated that in order to claim an activity—here, selling fish commercially—as an Aboriginal right, indigenous communities would have to prove that activity was an integral part of their distinct indigenous culture before the arrival of Europeans.[10] In this case, the court held that commercial fishing was not part of Van der Peet’s distinct Stó:lō culture because the Stó:lō only started selling fish in response to European settlers.[11] Critics of the ruling argue that the proposed test requires indigenous practices to remain static and unchanging for centuries and “ignores the inherently dynamic, adaptive nature of culture.”[12]
Shortly after, the Canadian court decided R. v. Marshall in 1999. This groundbreaking case established the rights of the Mi'kmaq people to fish commercially, ruling that the hunting and fishing rights of the Mi’kmaq peoples was an integral part of their distinct indigenous culture before the arrival of Europeans.[13] Therefore descendants of these groups had a right to commercial fishing to sustain “a moderate livelihood.”[14] The case further clarified that these rights could be curtailed by future government regulations if they were deemed environmentally or socially necessary and the fishing rights were intended to allow for community or individual subsistence, not large-scale profit.[15] However, the exact term “moderate livelihood” remains undefined, leading to confusion and differing expectations among those in the commercial fishing industry.[16]
Despite the recent judicial acknowledgment of indigenous fishing rights in Canadian courts, significant issues remain in recognizing and enforcing such rights outside the courtroom. Judicial gaps and popular ignorance of the law have led to intimidation, bullying, and acts of violence by non-native fishermen, who perceive the increased fishing by indigenous communities as a threat to their livelihoods.[17] In 2020, in a series of skirmishes known as the Lobster Wars, non-indigenous fishers cut the lines and damaged the traps of indigenous fishers.[18] There have been further incidents of violence and sabotage, with non-indigenous fishermen stealing indigenous fishermen's catches, burning their equipment and storehouses, and even physically assaulting them.[19] Federal agencies regularly issue reminders that indigenous populations have the right to fish commercially outside government regulations, but without stronger methods of enforcement, violence against indigenous fishers remains a significant threat.[20]
Some critics cite concerns over the environmental impact of allowing indigenous fishing outside government regulation as a justification for proposed restrictions on indigenous fishing rights.[21] However, indigenous fishers currently represent a very small percentage of commercial fishers and share of commercial fishing catches.[22] With such small numbers, indigenous traps and fishing have been shown to have a negligible effect on lobster and fish stock.[23]
The establishment and enforcement of indigenous fishing rights in Canada continue to elicit strong emotions. This is particularly true now, as the Sipekne'katik First Nation officially launched its own indigenous-regulated, rights-based fishery in September 2022.[24] The fishery will grant fishing licenses to Sipekne'katik members who meet requirements established in the fishery’s management and sustainability plan.[25] The plan also provides for Sipekne'katik monitors to enforce predetermined fishing and lobster rules and regulations.[26] While the opening of Sipekne'katik fishery shows that the judicial decisions of the 90’s have opened new opportunities for indigenous communities to practice centuries-old traditions while earning a living, the responses to those decisions, including theft, destruction, and violence, show there is still work to be done to ensure indigenous fishing rights are fully recognized and protected. By further educating the fishing industry about judicially established indigenous rights and also by engaging in enhanced collaboration among indigenous communities, government, and the fishing industry, Canadian officials can work towards a resolution that balances the rights of indigenous communities, the livelihoods of non-indigenous fishers and the conservation of marine ecosystems, ensuring a more equitable and sustainable future for all.
Kristen Mitsinikos is a staff member of Fordham International Law Journal Volume XLVI.
[1] See Sarah Isabel Wallace, Peace and Friendship Treaties, Canadian Encyclopedia (Feb. 17, 2023), https://www.thecanadianencyclopedia.ca/en/article/peace-and-friendship-treaties.
[2] See Paul Withers, Fisherman Sentenced for ‘Blatant and Overt’ Interference in Membertou Lobster Fishery, CBC News (Jan. 11, 2023, 11:55 AM), https://www.cbc.ca/news/canada/nova-scotia/fisherman-sentenced-cutting-lobster-traps-1.6710220#:~:text=Bernard%20Douglas%20MacIntyre%20was%20fined%20for%20cutting%20lobster%20traps%2C%20obstructing%20fishery%20officers&text=CBC).
[3] See William Craig Wicken, Fact Sheet on Peace and Friendship Treaties in the Maritimes and Gaspe, Gov. of Can. (Sep. 15, 2010), https://www.rcaanc-cirnac.gc.ca/eng/1100100028599/1539609517566.
[4] See id.
[5] See id.
[6] See Wallace, supra note 1.
[7] See Evaleen Hellinga, The Legacy of R v. Sparrow, TheCourt.ca (Feb. 6, 2020), http://www.thecourt.ca/the-legacy-of-r-v-sparrow/.
[8] See id.
[9] See Tanisha Salomons and Erin Hanson, Sparrow Case, Indigenous Founds. (2009), https://indigenousfoundations.arts.ubc.ca/sparrow_case/.
[10] See Tanisha Salomons & Erin Hanson, Van der Peet Case, Indigenous Founds. (2009), https://indigenousfoundations.arts.ubc.ca/van_der_peet_case/.
[11] See Vanessa Minke-Martin, The Long Expensive fight for First Nations’ Fighting Rights, Hakai Mag. (Oct. 23, 2020), https://hakaimagazine.com/news/the-long-expensive-fight-for-first-nations-fishing-rights/.
[12] See Salomons & Hanson, supra note 11.
[13] See R. v. Marhsall, Gov. of Can. (Sep. 15, 2010), https://www.rcaanc-cirnac.gc.ca/eng/1100100028614/1539611557572.
[14] See id.
[15] See Minke-Martin, supra note 12.
[16] See id.
[17] See Ron Johnson, Indigenous Canadians Suffer Abuse, Attacks Over Fishing Rights, Sierra (Oct. 30, 2020). https://www.sierraclub.org/sierra/indigenous-canadians-suffer-abuse-attacks-over-fishing-rights.
[18] See id.
[19] See id.
[20] See Kevin Bissett, Ottowa Issues Reminder and Warning About First Nations Fishing Rights, Glob. News (July 11, 2022), https://globalnews.ca/news/8981872/ottawa-issues-reminder-and-warning-about-first-nations-fishing-rights/.
[21] See Johnson, supra note 18.
[22] See id.
[23] See id.
[24] See Stephanie Hogan, Livelihood or Profit? Why an Old Fight over Indigenous Fishing Rights is Heating up Again in Nova Scotia, CBC News (Sep. 23, 2020), https://www.cbc.ca/news/canada/mi-kmaw-sipekne-katik-self-regulated-fishery-nova-scotia-1.5734646
[25] See id.
[26] See Bisset, supra note 21.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.