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As the situation in Nova Scotia escalates with settlers opposing Mi’gmaw engaging in a lobster fishery, I thought I might share a brief and limited overview of the Mi’gmaw rights determined by the Supreme Court of Canada.

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21 years and 4 days ago, that Court issued a landmark ruling in respect of a Mi’gmaw fishing for eel during the closed season (R. v. Marshall, [1999] 3 S.C.R. 456). The a Court confirmed that a treaty right to fish existed and this included a right to trade.

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Settlers not being any happier about that decision then they are about the current lobster fishery actually sought to have the Court reconsider its decision. The SCC clarified its original ruling (R. v. Marshall, [1999] 3 S.C.R. 533) two months later, but upheld its decision.

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Treaties had been made with most, if not all, of the Mi’gmaw peoples generally around 1760-61. There are some variations in those treaties, but they follow the same pattern. Most importantly, they all include the right to hunt and fish. There are also rights for truckhouses.

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Truckhouses were the means at the time whereby the Mi’gmaw could trade for “necessaries.”

In other words, the Mi’gmaw have treaty rights to hunt and fish for a living.

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Section 35 of the Constitution Act, 1982 affirms the treaty (and aboriginal) rights of Indigenous peoples in Canada. This means that the provisions in those 1760-era treaties have constitutional protections.

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The Court, however, held that there are some limitations on this treaty right. The right to fish and trade for “necessaries” and not “for economic gain.” The Court held this to mean “a moderate livelihood.”

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Moreover, the SCC held that the Crown had the right and responsibility to manage conservation and thus could restrict Mi’gmaw fishing if it could be justified on the basis of conservation or other compelling and substantial public objectives.

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This limited ability to regulate by the Crown is referred to as the Badger test, as it was first articulated by the SCC in its 1996 decision of R. v. Badger.

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Thus, the Crown could regulate fishing above a certain threshold (a more commercial fishery, beyond what is needed for a moderate livelihood) or if there were very compelling reasons like a clear need for conservation.

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Absent those compelling reasons, the Crown could not require Mi’gmaw to have to obtain a licence or to only fish during specified periods for any fishing within their treaty rights.

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Noteworthy about the Marshall cases is that there really wasn’t a commercial eel fishery. The fishing for a fairly small amount of eel (463 pounds, which was sold for $787.10) was not something anyone really cared about. It was the implications of the case that mattered.

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Even back in 1999, the concern was what this would mean for the much more lucrative lobster fishery. Obviously, 21 years later, settlers remain unhappy that Mi’gmaw have a protected right to fish for (a modest amount of) lobster.

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As I understand — there are others who are much closer to the current events and it is best to follow them for facts — the Mi’gmaw are currently fishing for a relatively small amount of lobster outside of the normal allowed season. They are self-regulating how much to catch.

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I have no idea if it is even possible for a government to justify an attempt to prevent the Mi’gmaw from exercising this limited fishery. My understanding is that neither the provincial nor federal government has tried. This implies that the Mi’gmaw are within the law.

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There are reports that the Mi’gmaw’s lobster traps have been vandalized, that there have been blockades, threats, boycotts and actions on the water (such as firing flares) that could pose a risk to life.

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Curiously, the people who complained loudest regarding the generally peaceful Wet’suwet’en blockades have been fairly silent. This would suggest that they are somewhat selective in their outrage.

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But the point I want to really underline is that the law here was essentially settled 21 years ago. This is not a new issue. A treaty that is now 260 years old is continuing to be followed in accordance with how Canada’s highest court has ruled on it.

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The protests and dangerous, criminal acts taken against the Mi’gmaw today are being taken by people who cannot get over the fact that a judicial process was followed and THEY LOST 21 YEARS AGO. Look, even Montrealers gave up rioting over the Habs not winning the Cup quicker.

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So, my sympathy goes out to Indigenous people, especially the Mi’gmaw, for the frustration that two SCC victories appear to have changed things very little even a generation later.

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And I encourage everyone to stay informed on this and to push to ensure that the Mi’gmaw are able to exercise their treaty rights safely and without being persecuted.

@TheAgentNDN is a good place to start for information on what’s happening and ways to support.

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(Feel free to suggest additional voices who should be heard and amplified as well as other ways to push to have treaty rights respected).

/fin