A just and fair resolution can show all Canadians, including Mi’kmaq and Maliseet people, that the law can be just, effective and consequential, writes Ken Coates.

By Ken Coates, March 22, 2021

Rising tensions in the Maritime fishery demonstrate the fundamental difficulty of creating effective and popular public policy. The situation is simple. Supreme Court judgments in the 1999 fishing case of Donald Marshall Jr. included the provision that First Nations people were entitled to a “moderate livelihood” from harvesting. Yet the concept was not defined and was put to the side.

Now, over two decades later, the fishing dispute has become one of the country’s most perplexing and difficult political challenges. Non-Indigenous fishers worry about their future in the industry. First Nations fishers feel that their constitutionally protected treaty rights are being ignored. Most Eastern Canadians want the issue resolved, preferably without incremental cost or discord. Conservationists worry about the ability to manage the fishery. And politicians wish the issue would fade into the background.

The Maritime fishery revolves around a series of certainties, each of which must be respected. First Nations have treaty rights recognized by the Supreme Court. The government must ensure the conservation of the fishery. Non-Indigenous fishers must not be hung out to dry by any resolution of the disagreement. And police and fisheries officers have to enforce Canadian regulations while protecting all of those involved in the increasingly contentious disputes.

Parties to this complicated dispute have so far not been able to reach a satisfactory agreement. In the interim, First Nations capitalized on their Marshall rights and became a major presence in the industry, with several groups purchasing Clearwater Seafood, the East Coast’s industry leader, in 2020. For most of the past two decades, the transition went smoothly as the Maritimes adjusted to the reality of a formidable Indigenous presence.

Two other major things happened in the intervening years. Lengthy negotiations over the meaning and nature of the First Nations’ moderate livelihood rights produced many proposals but no lasting resolution. Indigenous frustration mounted for the simple reason that being locked out of their full fishing rights costs individuals and communities millions of dollars in lost revenue.

At the same time, the Mi’kmaq and Maliseet population grew dramatically. The growing number of young people, raised in the glow of the Marshall decision, pressed ever harder for an expanded role in the fishery. The activists were right, of course. The Supreme Court had left the country a political quagmire. Their support for enhanced Indigenous involvement in the fishery, as a treaty right, was imprecise but unequivocal. As the Indigenous fishery improved over time, it became increasingly clear that substantial revenues and opportunities remained on the table.

The federal government accommodated some of those demands and continued the expansion of government support for the Indigenous fishery, though larger issues left over from the Marshall decision remained unresolved.

Bernadette Jordan, Minister of Fisheries, Oceans and the Canadian Coast Guard, pressed for a resolution and came up with a strategy that secured the support of the major commercial fishers’ association and met the conservation goals. Yet Jordan’s proposal does not, to date, have the endorsement of key Indigenous leaders.

As a result, the fishery became, yet again, a political hotspot and a potentially volatile situation. The burning of Indigenous buildings, violent outbursts, and a flood of angry words have poisoned the political air in the Maritimes. People remain on edge, with no obvious path forward. Anyone looking for an easy and painless resolution, however, is almost sure to be disappointed. The First Nations’ demand for an inshore lobster fishery outside the standard commercial season appears to be a game-stopper.

Several elements are clear. If a resolution is not reached soon, First Nations could return to the courts and force another Supreme Court decision on the issue. The all-or-nothing resolutions that often emerge from the court system could make the situation dramatically worse for Indigenous communities, non-Indigenous fishers and the federal government. The broader commercial fishery, whose interests have long been accommodated in the Indigenous-government negotiations, are clearly nervous about the prospects for unwanted and dramatic change.

There is an urgent need for clarity, with a firm requirement that conservation rules will be followed, disruptions in the fishery will not impact any of the commercial fishers, and Mi’kmaq and Maliseet treaty rights will be honoured. The Government of Canada will undoubtedly continue their efforts, but they could improve discussions by making it clear that any income, rights and opportunities due to the First Nations would either be provided through an expanded Indigenous fishery or some other acceptable compensation.

In retrospect, Ottawa should have resolved the “moderate livelihood” shortly after the initial Marshall decision. They tried, but without achieving a final resolution. First Nations, for their part, were adjusting rapidly to the new authority achieved under Marshall. Letting this legal and political sore fester for over two decades has made the matter difficult and potentially more intractable.

It should be clear to all concerned that Indigenous peoples in the Maritimes are not going to retreat from their hard-won rights. They have waited generations to secure recognition and they should not be expected to back down soon. Creating public policy is difficult business, as the Maritime fishery dispute demonstrates.

The path forward is far from precise, but several key elements stand out.

The federal government must continue to reaffirm its commitment to honouring the Supreme Court of Canada’s decision on the Marshall case. Many non-Indigenous peoples wish that this decision had never been rendered but that is immaterial. The court judgment stands and, because it speaks directly to Indigenous treaty rights, has constitutional protection.

Secondly, Ottawa must reassure society at large that the country will conserve and protect the East Coast fishery and recognize the personal and corporate rights of the commercial fishery. The industry works under and respects the strict controls on commercial fishing. Beginning in 1999, the long-established fishing communities worried that the Marshall ruling would undermine their access to the fishery and, thereby, to a vibrant and sustainable economy. The fishers and the associated businesses should not pay, individually or collectively, for the consequences of the court ruling.

First Nations have every right to push for a resolution of the “moderate livelihood” provisions of the Marshall decision, but their efforts to do so are strengthened by respect for other aspects of Canadian law. This applies to the conservation measures established by the Department of Fisheries and Oceans and to the government’s management of the fisheries overall. Drawing attention to the government’s inability to resolve the Marshall impasse is undermined by any extra-legal assertions of authority in other aspects of the East Coast fishery.

If the government and First Nations want a legal resolution, they could individually or collectively apply to the courts for a legal judgment on the practical meaning of the “moderate livelihood” concept. This approach would be risky for both parties, for the court ruling could impose regulations that one side or both find unpalatable. This approach is likely, however, if the Mi’kmaq and Maliseet opt to return to the courts, as is their right.

The most appropriate resolution, it seems, is to ensure that the eventual settlement does not weigh heavily on the East Coast fishers while addressing Indigenous legal rights. Other ways of accommodating Indigenous rights under Marshall include a sizeable one-time payment to First Nations governments, revenue sharing arrangements with the federal government, preferential access to other economic activity (lotteries, cannabis, etc.), or other mutually acceptable form of compensation. In other words, there are alternate paths to a "moderate livelihood” that may be acceptable to the Mi’kmaq and Maliseet.

While these discussions continue, it is vital that governments, industry representatives and Indigenous leaders avoid provocative statements or proposals. The sense of unease on the East Coast is severe and volatile. Indigenous peoples feel, with justice, that their rights are not being honoured. Commercial fishers believe, without legal foundation but with strong political resonance, that their fishing rights and privileges are at risk. It would not take much for the comparatively mild confrontations in the region to erupt into more serious conflicts.

The Marshall decision has long stood out as one of the most commercially effective court decisions, drawing many Indigenous peoples into the fishing economy and producing millions of dollars in incremental income for First Nations people, communities and governments. Yet court rulings must be respected by governments and the country at large. They are not to be avoided, obfuscated or otherwise pushed to the political margins.

Canada’s legal system is one of our country’s foundational strengths. But if significant court rulings, like the Marshall decision’s “moderate livelihood” provisions, can be left unresolved for over two decades, it brings Canadian law into disrepute. Conversely, a just and fair resolution can show all Canadians, including Mi’kmaq and Maliseet people, that the law can be effective and consequential.

Ken Coates is a Munk senior fellow at the Macdonald-Laurier Institute. 

MLI would not exist without the support of its donors. Please consider making a small contribution today.