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Motion Pertaining to Mi’kmaw Fishers and Communities

Resuming debate on the motion of the Honourable Senator Francis, seconded by the Honourable Senator Pate:

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.

Hon. Mary Jane McCallum: Honourable senators, I rise today to speak on Motion No. 40 regarding the protection and affirmation of Mi’kmaq fishers’ treaty rights. I want to thank Senator Francis for bringing this important matter forward.

I want to acknowledge that the contents of this speech come largely from the Master of Arts thesis submitted by Ms. Karilyn Toovey entitled Decolonizing or Recolonizing: Indigenous Peoples and the Law in Canada. The committee members were Dr. Jeff Corntassel, Dr. Taiaiake Alfred, Dr. John Borrows, and Dr. James Tully.

As Audre Lorde said: “The master’s tools will never dismantle the master’s house.”

Ms. Toovey’s thesis examines the limitations and drawbacks in using the law with respect to cases involving Indigenous rights and title. She demonstrated that tackling issues of rights and title through the Canadian judicial system is potentially dangerous to the advancement of Indigenous rights and title.

So what are the alternatives to legal forums? In her thesis, Ms. Toovey states:

. . . law cannot be separated from culture and law operates to perpetuate culture. In the case of Canada, the law operates to perpetuate a colonial culture. Therefore, when we speak of Indigenous peoples emancipating themselves through the use of a foreign and imposed law, we are asking Indigenous peoples to adopt the very culture that created their oppression in the first place.

Ms. Toovey asks:

In 1982, section 35 was added to the newly patriated Constitution of Canada. . . . what has been the result of section 35? Have conditions changed for Indigenous people? Has it become easier to make rights claims? Have Indigenous peoples been enabled by section 35 to speak in their own voices? Has it led to a revitalization of culture?

By entrenching section 35 of the Constitution the politicians were effectively ensuring that Indigenous peoples would have to take any and all claims to court, further legitimizing the institutions of the Canadian state, and removing Indigenous issues from the political sphere. Effectively, Indigenous peoples were relegated to a world whereby they would have to ask for their rights from their colonizing oppressor, and in order to ask for those rights, they would necessarily legitimate their oppressor.

The people of Burnt Church experienced first hand the futility of section 35 and court rulings on it. Burnt Church was the community most affected in the aftermath of the Marshall decision. When the Marshall decision came down and the Mi’kmaq began to fish they were subjected to violence and arrests. The community of Burnt Church was attacked directly by the non-Indigenous lobster fishermen. Indigenous-owned lobster traps were destroyed and pictures of the Department of Fisheries (DFO) boats chasing, and often attacking, Mi’kmaq were a fixture on news reports. In the end however, it was the Mi’kmaq who faced charges of exceeding their legal limit of lobster catches, a limit imposed by the colonizer. Mi’kmaq Commander of the East Coast Warrior Society James Ward, when speaking of the ensuing criminal trials, stated, ”No one here has any faith in the judicial system. There’s animosity between ourselves and the judge himself and obviously between the fisheries officers present. This is a system that gives (a police) officer two years less a day of community service for shooting a native man in Ipperwash. Why should we have any faith in the judicial system doing anything for us?“

Ms. Toovey explains the Marshall decision by saying:

R. v. Marshall was considered another “win” for Indigenous peoples. In that case Donald Marshall Jr. was acquitted of catching and selling eels. The court determined that, as a result of treaty and section 35, the Mi’kmaq do have a right to . . . earning a “moderate livelihood”.

Doug Cuthand, in his article in the Regina Leader Post on September 26, 2020, stated:

The term “moderate livelihood” is not a legal term, and First Nations seem to be the only people in Canada who are subject to it.

Ms. Toovey continues:

Marshall relied on a 1752 treaty as evidence that the colonial regime had always recognized the right of the Mi’kmaq to sell fish given the inclusion of a “truckhouse” clause in the treaty. The “truckhouse” clause allowed the Mi’kmaq to bring their catch to be sold at truckhouses (essentially trading posts) in order that they may earn a “moderate livelihood”, but the Mi’kmaq are prevented from an “open-ended accumulation of wealth . This judgment led to an extreme backlash against the Indigenous fishery, and led to violent clashes between Indigenous fishers and the Canadian fishery. The Supreme Court responded to this by releasing its judgment in Marshall 2, which curtailed the rights earlier acknowledged by the court. The Marshall 2 court notes that the Indigenous rights were subject to government regulation. The court in Marshall was accused by many of practicing a sort of judicial activism, with many stating that it was indicative of the courts unbridled willingness to grant open-ended rights to the Indigenous. . . . it is not for the court to “grant” a right that already exists, and more frightening still was that the first judgment was already restrained, and yet, as has been proven by the Marshall case, this restrained acknowledgment that an Indigenous right exists was fraught with such huge political ramifications that the court was forced to bend.

. . . the Marshall decision leaves Indigenous peoples with the right to fish, and sell their catch, but only within a highly regulated and colonial regime, that is set up, maintained and enforced by the colonial parties such as the Department of Fisheries and Oceans, the courts and the police.

The Marshall decision made evident just how much the judiciary is influenced by popular opinion, in that the court further restricted the rights it recognized the Mi’kmaq to hold. . . . the judiciary exists as a result of political appointment . . . . The judiciary is ultimately accountable to the politicians, who are ultimately accountable to the majority . . . . but it is certainly not accountable to the Indigenous population. As Patricia Monture-Angus points out,

The judicial process on which we rely to resolve Indian claims is not accountable to the people whose future it determines. Canada (either federal or provincial governments), on the other hand, can by the authority vested in its legislative powers, circumvent judicial decisions by passing or amending the statutory provisions. This forces courts to at least acknowledge seriously the position the various Canadian legislatures take on certain issues. No such deference to Aboriginal governments exists in the present balance between judicial and legislative powers.

Long before the arrival of Europeans on this continent Indigenous people had complex systems governing their fisheries that allowed for sizable catches, as well as conservation.

. . . in Canada, by 1884 the Dominion government required Indigenous peoples to seek permission from the colonial government to fish for food (this, despite the fact that non-Indigenous people did not need a license to food fish) and by 1888 the Indigenous peoples could no longer sell fish without a license.

The DFO has long used conservation concerns as a means to control, and in many cases, halt the Indigenous fishery.

Parnesh Sharma has uncovered some of the disturbing ways in which the DFO pushed Indigenous peoples out of the fishing industry. Sharma details the fishing season of 1995 in which the DFO asked Indigenous peoples to not catch their allocation of fish due to conservation issues. There was no such conservation issue . . . . As Sharma notes, “Rather, the DFO, under intense pressure from the commercial lobby, lied to the aboriginal fishers and simply reallocated the aboriginal food fish to the commercial fishery. . . The decision to violate aboriginal fishing rights and the terms of the AFS agreement apparently occurred with the full knowledge of the Federal Minister of Fisheries Brian Tobin.”

For the Mi’kmaq, the Marshall decision did not create a right, the Mi’kmaq already held the right. What the Marshall decision did was create a stronger resolve within communities to resume the fishery that had been vital to their communities and culture for thousands of years. By February of 2000, the Mi’kmaq had decided to take the political initiative (partly as a result the second court ruling in the Marshall decision . . . .) and define their own rights, outside of Canadian courts, outside of colonial legal structures. What resulted was the Esgenoopetitj Fisheries Act and Management Plan. The creation of this came out of a process owned by the community of . . . . Burnt Church, whereby extensive consultation took place.

Many Indigenous communities are at a crucial point, where languages are being lost, and ways of life are being forgotten. For coastal communities the need to educate young people about the culture necessitates the return of the traditional fishery.

The Indigenous peoples of both the east and west coasts will face continued resistance to their fishery as commercial interests begin to face restrictions in light of diminishing stocks.

. . . going to court confines rights to the states interpretation of them. It removes the community from defining for themselves what their rights are, what they look like and how they will be exercised and puts those rights and the definitions of those rights into the hands of the state and . . . puts the maintenance of a culture into the hands of the state, and the state has repeatedly proven that it’s motive is to at the very least subsume Indigenous culture, if not outright destroy it.

Were gains made for communities as a result of acts of resistance? . . . the actions were . . . successes because of how they brought communities together. In some cases communities already had a measure of solidarity, but in other cases communities were brought together that were otherwise fragmented. James Ward . . . stated that the incidents at Burnt Church . . . . left a lasting impression on the community, with a renewed sense of community and pride.

. . . after 500 years of colonization, Indigenous peoples have demonstrated they are not in short supply of [patience and strength].

. . . the exercising of rights, acknowledges what a court room simply cannot; that communities are the sum of all their parts, that issues cannot simply be reduced to one of land, fish, trees. By not simply taking these issues into court Indigenous peoples are maintaining their right to define who they are, what they are and what it means to be Indigenous. In a sense, the exercise of rights has become a part of ceremony, the ceremony that is community, solidarity and survival.

Honourable senators, let’s support our fellow senators and call upon the Government of Canada to uphold Mi’kmaw treaty rights to a moderate livelihood fishery safely and with the blessings of Canada. Thank you.

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