by Bob Worcester
The 1494 Treaty of Tordesillas with its “doctrine of discovery” declared “non-Christian” lands were fair game for European explorers. By this doctrine Canada was deemed “terra nullius” or “empty land” which when claimed for the Crown gave sovereigns the legal right to occupy, govern, defend and exploit that land. In the long sad history of colonial conquests this doctrine gave cover to a legacy of “right by might” for a series of European sovereignties. This ended in 1759 on the Plains of Abraham in Canada when French sovereignty was subsumed by the British and again in 1812 when American sovereigns were repulsed and British sovereignty prevailed. Lost in these conflicts was an appreciation of the original inhabitants of the land and the complex web of territorial arrangements they had worked out over thousands of years. 500 years later these issues remain unresolved.
Canada has become a pragmatic multicultural mosaic. French and English Canada have ‘working’ relationship that preserves aspects of those two ‘founding’ cultures. Since 1990 it has been Canadian government policy to recognize a special arrangement with its indigenous populations and acknowledge a “3rd order” of government that accommodates self-determination. Numerous land claims, resources rights and compensations have been and continue to be negotiated on a case by case basis within this framework.
R. v. Sparrow (1990) was the first Supreme Court of Canada case to test section 35 of the Constitution Act, 1982. Initially convicted of fishing illegally, Musqueam man Ronald Edward Sparrow was cleared by the Supreme Court and his ancestral right to fishing was upheld.
In 1995, Dorothy Van der Peet, a Stó:lō woman in B.C., was arrested for selling 10 salmon caught under a food-fishing license. She was found guilty at trial, and the Appeals Court and Supreme Court of Canada upheld the conviction. They concluded that this was ‘commercial’ fishing and therefore not protected by treaty. However in1999, the Supreme Court of Canada affirmed that Donald Marshall Jr., a Mi’kmaw from Nova Scotia, had a treaty right to catch and sell fish.
Following the Marshall decision Canada engaged in negotiations with Mi’kmaq, Maliseet and Passamaquoddy on the basis that they do have treaty rights to hunt, fish and gather towards earning a moderate livelihood. These rights flow from the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the ancestors of the Mi’kmaq, Maliseet and Passamaquoddy. As the Supreme Court described it, earning a “moderate livelihood” didn’t mean an open-ended accumulation of wealth, rather it was securing the “necessaries.” Further, the Supreme Court noted that these treaty rights are held by the community as a whole not individuals. This is because the treaties were negotiated by groups of aboriginal peoples, not by individuals. However, “The treaty right is a regulated right and can be contained by regulation within its proper limits. Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi’kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right” (R. v. Marshall, page 3).
In May 2016, the Minister of Indigenous and Northern Affairs announced that Canada was a full supporter, without qualification, of the UN Declaration on the Rights of Indigenous Peoples and that the implementation of those rights would proceed in good faith.
The current situation in Nova Scotia regarding Mi’kmaw rights to lobster fishing is a result of the failure over the last 20 years to clearly define and fully implement the Marshall decision of 1999. The Mi’kmaw nation have so far issued 11 licenses to 11 boats, each with 50 traps. In 2018, Fisheries and Oceans issued licenses to 979 boats in this part of Nova Scotia and each could hold 375 to 400 traps. Current DFO regulations prohibit the commercial sale of lobster from ‘unregistered’ licenses.
Objections to this assertion of fishing rights come from non-indigenous fishers who view the competition as illegal, unfair and the unregulated licenses to be a danger to conservation of the lobster stocks due to ‘off season’ fishing. In practice this indigenous fishery is very small scale compared to the $1 billion dollar/year commercial fishery, and independent scientists have found the lobster stocks to be relatively healthy.
Emotions run high when livelihoods are at stake and this conflict has included arson, vandalism, mob behaviour and overt racist taunts. The RCMP can be faulted for not keeping the situation confined within the law. BUT there is the rub. Within WHAT legal framework should the RCMP, fisheries officers, DFO conservation efforts, the courts, the Supreme Court and ultimately the Parliament of Canada operate?
Canada has a 500 year history of interactions between European “sovereigns” and indigenous “nations” with mixed results. Quebec settled in Charlottetown for a sort of “sovereignty association” with special status among Canadian provinces. Separatists had failed to convince Quebecers that nationhood outside Canadian jurisdiction was preferable to its special status within Canada. With potentially hundreds of “1st nations” within Canada’s recognized boundaries, a similar problem may exist.
Nations exist in the fragile framework of international law that depends largely on voluntary cooperation. The UN can do very little to moderate the lawlessness of its member states. Wars, genocides, predatory trade practices and land appropriation occurs regularly within this framework. To enter this “sovereign” terrain should be a daunting prospect to say the least.
It seems to me that Canada has much to offer its indigenous nations by way of a framework for working out “reasonable accommodations” within a multi-cultural system. The David Suzuki Foundation has introduced the innovative concept of a “right to a healthy environment” to suggest that current legal frameworks do not go far enough. If corporations have “rights” within the law why cannot rivers, oceans and whole ecosystems ALSO be considered to have their associated rights? We may assume that “rights” are merely social inventions with pragmatic utility, but the moral principles on which they are based are not obviously limited to human societies. Provisions against animal cruelty recognise this principle. Lobster fishers may assert rights within the Canadian legal framework or within the UN declaration of indigenous rights but we ALL live together on a planet with limited resources and ecological principles that mitigate against the “war of all against all.”
Canadians have often been at the vanguard of social invention, and this idea of ecological responsibilities could serve us well as an antidote to the ravages of 19th century colonialism and 20th century capitalism. Humans imagine themselves to be a privileged species but that may well be just an illusion. Perhaps Canada’s recognition of three founding peoples (French, English and indigenous) implies that there is room for a fourth. “Nature” is the ground upon which everything else depends.
“Who speaks for the voiceless” has always been a problem but one which once recognized can at least be addressed. As Canadians we should continue respectful discussions within our founding principles recognizing that we are ALL treaty people and our mutual welfare is dependent on those principles of fairness, equity and the reasonable accommodation of our differences by which we order our relations. We should be mindful also that our mutual welfare depends on the complex interactions and delicate balances of the natural world that we ignore to our peril. We need to explore and expand our understanding of the “natural rights” of the things that pre-existed our current ‘human’ societies.
Though science sometimes reinforces the idea that nature is “red in tooth and claw” it has also shown that we exist within a complex web of natural interrelationships that our very lives depend on. In balancing competition with cooperation, ALL human societies are constrained by natural laws and those laws extend beyond merely human jurisdictions. “Reasonable accommodations” of differing interests are possible and desirable even if elusive. We should commit ourselves to the wisdom of the “7 generations” found in indigenous cultures as we plan for the future. Perhaps the “7 virtues” found in European cultures may also guide us as we seek a universal basis for life on this one precious planet.