N.S. legal expert says Canadian government likely has not met constitutional obligations to First Nations

·5 min read

SYDNEY — A Dalhousie law professor says the way the lobster fisheries dispute is playing out between the federal government and First Nations in Atlantic Canada is a setback in reconciliation.

“I think that’s a loss for everyone,” Wayne MacKay says.

MacKay is a professor emeritus at the Schulich School of Law, and specializes in constitutional law, the Charter of Rights and Freedoms, and has taught courses in Indigenous rights.

He says there are “several layers of problems with the current approach” by Bernadette Jordan, minister of fisheries and oceans, who announced on March 2 that her department will now issue licenses for Indigenous fisheries and limit their moderate livelihood fishing to the commercial season.

The precedent set by the Supreme Court of Canada in the Marshall cases recognizes the First Nations’ right to fish under the Peace and Friendship Treaties but also allows for limitations by the government for the purpose of conservation.

The Badger decision set out the parameters for applying those limitations and puts the onus on the federal government to show that the infringement of treaty rights is justified, and to consult with First Nations to find a solution that puts the minimum restrictions on Indigenous rights.

LACK OF CONSULTATION

The 13 Nova Scotia First Nations chiefs have unanimously rejected Jordan’s plan for a number of reasons, a major one being a lack of consultation.

While the federal fisheries department says there has been consistent communication with First Nations on moderate livelihood fisheries and that the question of whether fishing can occur outside of the commercial season has been a part of those conversations, MacKay says these broad discussions do not constitute meaningful consultation on the actual policy itself.

“In my view, to really meet the constitutional obligation, (the government) would have had to consult once they were formulating a policy and bring it back and say, 'What do you think of this?’ and give an opportunity for (First Nations) to really make a case,” he says.

THIRD-PARTY INFORMATION

In a March 12 statement, the Assembly of Nova Scotia Mi’kmaq Chiefs said Jordan not only failed to consult with First Nations, but she is also making decisions based on rumours.

Last week, a DFO spokesperson said consultation with First Nations and development of the new regulations were cut short by Potlotek First Nation's plan to begin fishing on March 15, ahead of the start of the commercial fishing season on May 11.

Potlotek’s chief, Wilbert Marshall, says that information is false and it didn’t come from him.

“Our community plan outlines our authorized harvesting dates, which are for late spring — not March. No one at DFO had the opportunity to see our 2021 plan yet, so there was no way for them to be able to say when we were going to start our spring season,” Marshall said in the release.

When asked directly where the information regarding Potlotek’s fishing plan came from, the department provided a written response that did not address the question or provide any new information regarding the government’s decision to apply seasonality and licensing to the First Nation’s moderate livelihood fisheries.

DUTY TO ACCOMMODATE

Jordan cites the protection of the lobster population as the reason for the new regulations and credits her department’s fishing limits and practices for the healthy stocks.

First Nations agree that conservation is a priority but say DFO has not yet provided evidence or scientific data to support its approach to managing the lobster population.

MacKay says no one is disputing the need for a conservation plan.

“Where the disagreement comes in is there are different ways or means to do that and what seems to me is that the government has not fully demonstrated that what they’re proposing is the least treaty restrictive way to achieve conservation,” says MacKay.

He says a negotiation process that meets the true spirit of the Supreme Court’s rulings would allow for the comparison of the different plans to find the best one or create a combination of the federal plan and the First Nations’ plans based on conservation and the minimal infringement of Indigenous treaty rights.

LIKELY HEADED TO COURT

The Assembly of Nova Scotia Mi’kmaw Chiefs maintains that First Nations have requested specific information from DFO and will not negotiate until it’s been received.

“We will continue to reject the minister’s unilateral control of our rights’ based fishery and will hold her to account to meet her legal obligations as described in (the) Marshall and Badger (decisions),” said Chief Gerald Toney, fisheries lead for the assembly.

The fisheries department doesn’t appear to be reconsidering its new plan in a recent comment: “The minister and DFO are always willing to continue discussions and address concerns, but with the Spring season approaching, the federal government has a responsibility to put in place clear regulations for the fishery as we work toward long-term agreements.”

MacKay says the constitutional issues raised in the moderate livelihood fisheries dispute make it a high-stakes case for both sides.

“A lot of what is at stake here is really the rights of the First Nations to engage in self-governance and that part of it makes it a kind of test case,” says MacKay.

He adds that these kinds of cases are often costly and time-consuming as they tend to move through the court system to the Court of Appeal and then the Supreme Court for a final ruling.

“It’s unfortunate that the courts become the ultimate arbiter on these kinds of things at the end of the day,” he says.

In the meantime, First Nations communities across the province are continuing to plan their moderate livelihood fisheries for the spring.

Jordan has said she is prepared to enforce the Fisheries Act equally to all harvesters and will have increased fisheries officers, supported by Canadian Coast Guard vessels, deployed to maintain safety on the water.

“It’s up to all of us to work together, to come together, and ensure a peaceful, productive season this spring. We owe it to everyone involved, to rights holders, to coastal communities, and to all Canadians to get this right,” she says.

Ardelle Reynolds, Local Journalism Initiative Reporter, Cape Breton Post