TORONTO -- One summer morning in 1993, Mi鈥檏maq fisher Donald Marshall Junior loaded up a small boat with fishing gear and set off into the cold waters off Cape Breton to catch eels.
Marshall didn鈥檛 have a fishing licence and was catching eels off-season. But his ancestors had fished in the waters off Nova Scotia for thousands of years, and he believed he had a treaty right to sell his catch to support himself and his wife.
Marshall caught a sizeable haul of 463 pounds of eels that day, which he sold for $787.10.
Not long after, police arrested Marshall and charged him with three offences: selling eels without a licence, fishing without a licence, and fishing during the closed season with illegal nets.
Marshall鈥檚 arrest marked the beginning of a years-long legal battle that worked its way up the courts and culminated in for Mi鈥檏maq fishers, affirming their treaty right to fish for a 鈥渕oderate livelihood鈥� wherever and whenever they want.
The case was a major success for Mi鈥檏maq fishers. But the language was open to interpretation.
The ruling didn鈥檛 clearly define what constituted a 鈥渕oderate livelihood.鈥� The ruling also specified that the Mi鈥檏maq don鈥檛 have a right to 鈥渙pen-ended accumulation of wealth鈥� but instead were limited to trading for 鈥渘ecessaries鈥� -- a term directly lifted from a 260-year-old treaty.
The court鈥檚 legal jargon has been criticized as unspecific by both Mi鈥檏maq fishers and non-Indigenous fishers. But legal experts say the language was intended to put the ball in the government鈥檚 court to work out a long-term solution.
The 1999 case faced renewed national attention this fall after the Sipekne'katik First Nation launched its own self-regulated lobster fishery on Sept. 17, the 21st anniversary of the Marshall ruling. The launch was more than two months before non-Indigenous fishers drop their first lobster traps on Nov. 30, when lobster fishing season begins.
Non-Indigenous fishers accused the Mi鈥檏maq fishers of defying federal rules and disregarding sustainability initiatives. Mi鈥檏maq fishers pointed to the 1999 Supreme Court ruling and argued that their small operation was well within the definition of a 鈥渕oderate livelihood鈥� and wasn鈥檛 at risk of depleting the lobster population.
Following violent confrontations that have led to arrests, destroyed fishing equipment, accusations of police inaction and a burned-down lobster pound, both groups have called on Ottawa to step up and settle the matter once and for all.
鈥楶EACE AND FRIENDSHIP鈥� TREATIES
More than 250 years before Marshall set out to catch eels, leaders from the the Mi鈥檏maq Nation had begun signing treaties with colonial authorities in Nova Scotia.
Today, these treaties are described as although they did little to stop violent conflicts as European settlers continued to claim more and more land.
The first treaty was signed in 1726, but when clashes broke out over colonists moving further into Indigenous territory, both parties returned to the negotiating table.
In 1752, a new peace treaty was signed that affirmed previous peace treaties, declared an end to hostilities and -- most importantly -- spelled out provisions on Indigenous trading rights.
The most consequential treaties in laying out today鈥檚 legal framework were signed in Halifax in 1760 and 1761, when the British Crown approved a number of promises with the Mi鈥檏maq Nation, including rules around who the Mi鈥檏maq could trade with.
The 1760-61 treaties are not clear on rules around fishing, but instead focus on truckhouses, a gathering place where trade with the British was allowed. The Mi鈥檏maq also agreed that they would not trade with non-government individuals.
A KEY CLARIFICATION
The Supreme Court closely studied those 1760-1761 treaties in its 1999 decision and found that the documents in fact affirmed the right of Mi鈥檏maq people to hunt, fish and gather for sustenance and to trade for what the 1760 document deemed 鈥渘ecessaries.鈥�
In effect, the ruling affirmed fishing rights for the Mi'kmaq, Maliseet and Passamaquoddy bands, all of whom live in Eastern Canada.
Two months after the Marshall decision, the Supreme Court issued an important clarification. The court said that the treaty rights in its decision were not unlimited, and that it was possible for Indigenous fisheries to be regulated. These regulations would need to be justified with public objectives in mind, such as conserving fish.
This clarification has often been cited by non-Indigenous fishers who have argued that Indigenous fishers must face some form of regulation. Specifically, these groups say they want Indigenous fishers to follow the same federally-regulated seasons as non-indigenous fishers.
Without a clear federal system in place, the Mi鈥檏maq are operating their own self-regulated lobster fishery.
WHAT IS A 'MODERATE LIVELIHOOD鈥�?
The term 鈥渕oderate livelihood鈥� was used by the court as a 20th-century interpretation of the idea that the Mi鈥檏maq had a right to trade wildlife for 鈥渘ecessaries.鈥�
The court specifically spells out a 鈥渕oderate livelihood鈥� as basics, including 鈥渇ood, clothing and housing, supplemented by a few amenities鈥� but not the accumulation of wealth.
鈥淚t addresses day-to-day needs. This was the common intention in 1760,鈥� the court said in its decision.
The language is intentionally non-committal because the court wanted the federal government to work with the Mi鈥檏maq to hammer out a clear solution, according to Dwight Newman, a law professor at the University of Saskatchewan who specializes in Indigenous rights.
鈥淲e can critique them after the fact for that, but I think they hoped for negotiation between the federal government and the First Nations to give further definition to that,鈥� Newman told CTVNews.ca in an interview on Tuesday.
The problem, Newman says, is that Ottawa hasn鈥檛 stepped up to the plate to settle the issue.
鈥淪o now we鈥檙e at the point where these First Nations have been waiting 20 years and they鈥檝e decided to take some initiative on their own to bring the matter to the fore.鈥�
Sipekne'katik Chief Mike Sack said if the federal government won鈥檛 negotiate with the Mi'kmaq to help define moderate livelihood, they鈥檒l define it themselves.
鈥淭he treaty鈥檚 between both of us,鈥� he said. 鈥淭hey haven鈥檛 been upholding it like they should, so if they鈥檙e not capable of doing that, we鈥檒l get it defined ourselves.鈥�
Former Grand Chief for Northern Manitoba Sheila North said that while the dispute is, on the surface, about fishing rights, it fits into a larger history of Indigenous people fighting for their rights to the land.
鈥淗unting and livelihoods are at the heart of it. Indigenous people have been denied these rights for many generations. That鈥檚 why a lot of people are sick, that鈥檚 why we keep calling Indigenous people and communities the most vulnerable during this pandemic time, because they haven鈥檛 been given the right and access to live out what they have a treaty right to, living off the land and supporting their families through these practices that have been there for many, many generations,鈥� she said.
WHAT鈥橲 NEXT?
Prime Minister Justin Trudeau has pledged to work with both the Mi鈥檏maq fishers and non-Indigenous fishers to come up with a solution. The federal government has also vowed to provide more resources to increase policing in the region after a fire destroyed a lobster pound used by Mi鈥檏maq fishers.
鈥淲e need to have an approach that doesn't just recognize inherent treaty rights, but implements their spirit and intent,鈥� Trudeau said. 鈥淭hat's why we will work with commercial fishers and the Canadians to ensure that this is done fairly. I understand that this is challenging, but this isn't an inconvenience, but an obligation. If we are truly to be the country that we like to think of ourselves as, this is the road we must walk.鈥�
Conservative Leader Erin O鈥橳oole accused the Liberals of 鈥渋naction,鈥� although previous Liberal and Conservative governments had years to step in and settle the dispute since the 1999 ruling.
鈥淭he Indigenous community and the non-Indigenous community agree on one thing: the inaction of this government is unacceptable,鈥� O鈥橳oole said during an emergency debate in the House of Commons on Monday.
NDP Leader Jagmeet Singh has called on the government to make new commitments 鈥渢oday.鈥�
鈥淭his is an emergency because 鈥� there is a real threat that this violence will escalate and people will lose their lives and that cannot happen and so we need immediate action right now.鈥�
The fishing rights conflict is an interesting 鈥渂ookend鈥� to 2020 in terms of Indigenous rights, Newman said, pointing out that the year began with rail blockades over the Wet鈥檚uwet鈥檈n hereditary chiefs鈥� opposition to a natural gas pipeline in northern British Columbia.
In that case, the group struck a deal with Ottawa. Newman said he hopes the situation is resolved peacefully.
鈥淓veryone should be concerned about acts of violence,鈥� Newman said. 鈥淗opefully, the government can find a way forward.鈥�
