A turning point in treaty relationships

by Dianne Climenhage

October 1 is Treaty Day in Nova Scotia. It marks the beginning of Mi’kmaq History Month in the province and it is a way to teach Nova Scotians about the historic relationships that still govern the land today. The Halifax Treaties of Peace and Friendship (The Halifax Treaty) were signed by the Mi’kmaq and British first in 1726, with the final version signed in 1762, officially ending 75 years of warfare. In 1982 the treaty was enshrined in the Canadian Constitution. The Halifax Treaty did not involve ceding land but it ensured rights and responsibilities of both the Crown and the Mi’kmaq were clearly established.

On Treaty Day, many celebrations in Indigenous communities offer an open invitation to anyone to participate, to learn, and to enjoy building relationships together in the spirit of the treaties. This year, after many years of unsuccessful negotiations with the Government of Canada, treaty celebrations looked different. Treaty relationships reached a turning point in September as the Sipekne’katik band, one of 13 Mi’kmaq communities in Nova Scotia, began asserting treaty fishing rights.

Digby Wharf, NS, the site of recent Mi’kmaq protests. This photo was taken in 2019. (MCC photo/Dianne Climenhage)

Under the treaty rights, Mi’kmaq are guaranteed consistent access to resources including fishing to maintain their culture in their traditional lands. However, since the signing of the treaty, the Mi’kmaq have struggled to exercise these rights without conflict and have been limited to government determined fishing seasons.

Today, the waters around Nova Scotia are used for fishing, by three major groups: Indigenous communities, traditional settler fishers, and large fishing corporations. The enactment of the Halifax Treaty impacts each of these groups, who are looking to the Government of Canada to create policies and systems, which ensure fairness and equality.

In 1999, the Supreme Court of Canada decided in favour of Donald Marshall, Jr., a member of the Mi’kmaq community, who was charged with fishing out of season. His defense relied on the Halifax Treaty which ensured the Mi’kmaq inherent fishing and hunting rights, as well as the right to earn a “moderate livelihood” from these resources. Since that decision, the Department of Fisheries and Oceans (DFO) has worked in various ways with Mi’kmaq communities to establish an Indigenous fishery.[i]  While the term “moderate livelihood” was applied in the court decision, it was not defined. The lack of clarity of the term has added to the confusion around the extent of fishing that Mi’kmaq are entitled to under the treaty.

Jessica and Christina Tellez, hold signs at a Mi’kmaq Rally on September 26, 2020. Jessica and Christina, a mother and daughter, actively work toward right relationships with Indigenous peoples and friends/supporters of MCC. (MCC photo/Dianne Climenhage)

An article published in the Journal of Legal Pluralism and Unofficial Law, Wiber & Milley states, “Both the Canadian Constitution and several Supreme Court decisions have guaranteed Canada’s First Nations special rights to natural resources including lands, waters, and fisheries. In acting on these rights, however, aboriginal peoples of Canada have not been successful in arguing that their activities should be guided by the objectives, rules and protocols established by their First Nation, and not by those of the post-colonial Government of Canada.”[ii]

After years of consultation and negotiation between the Government of Canada and the three groups, enacting the treaty rights as confirmed by the courts in 1999 has remained challenging. The frustration and resentment resulting from the lack of enactment of these rights, led to the creation of a Mi’kmaq fishery on September 17, 2020, the 21st anniversary of the Marshall court ruling.

From the perspective of treaty rights, the issue is clear. As agreed in the 1752 version of the Halifax Treaty and again affirmed in the 1999 court case, the Mi’kmaq are entitled to their own fishery. From a traditional settler fishery perspective, the conservation mandate of the DFO, which includes the sustainability of the fish stocks for future generations, suggests that there are benefits to all three parties working together.

Lois Mitchell, Director of International Studies at St. Stephen University, facilitates courses aimed at helping students understand Indigenous history and culture and work toward righting relations. A settler, personally connected to the traditional settler fishery, Lois shares, “Indigenous peoples have all but lost their cultures and way of life at the hands of the same government that now sets the rules and vision for how non-Indigenous fishers live and work.” There is empathy and frustration from both the Indigenous and traditional settler fishers regarding the government’s lack of clear intervention.

Protesters gather at a rally at the Halifax waterfront in solidarity with the Mi’kmaq fishers from Sipekne’katik on September 26, 2020. (MCC photo/Dianne Climenhage)

Why is it important to know what is happening at the wharf in southern Nova Scotia?

The Tatamagouche Centre, an MCC partner offering a variety of programs on righting relations throughout the year, is calling for solidarity with the Mi’kmaq fishers. As people who live in Canada, a majority of us live on treaty land. With our residency comes the responsibility to understand the history and context of our land. Learning about the treaties and current treaty violations is one way of understanding our surroundings. Article 37 of the United Nations Declaration on the Rights of Indigenous People says, “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements”. How can we honour the treaties that our government has made if we don’t know our responsibilities?

On September 30, 2020, Bernadette Jordan, Federal Fisheries Minister, published an op/ed piece in the Chronicle-Herald, where she suggests a path toward reconciliation, “When we understand our history and responsibility as treaty people, it changes how we understand these moments. This is not about creating a brand-new fishery outside the law. This is about actualizing a fishery that always had a right to exist. This can be a turning point in our treaty relationship.”

This turning point for one nation, in one part of the country, is an opportunity for all of us to consider what we know about the treaties that affect the land where we live and work.

Dianne Climenhage is the MCC Atlantic Canada Regional Representative

Learn more about the TRC Calls to Action & United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) and work toward reconciliation by writing a letter to the Minister of Justice and your MP to ask them to act on their commitment to introducing a legislative framework for the UN Declaration here>.


Notes:

[i] The Marshall Decision at 10 by Ken Coates https://macdonaldlaurier.ca/files/pdf/20191015_Marshall_Decision_20th_Coates_PAPER_FWeb.pdf

[ii] Melanie Wiber & Chris Milley (2007) After Marshall: Implementation of Aboriginal Fishing Rights in Atlantic Canada, The Journal of Legal Pluralism and Unofficial Law, 39:55, 163-186, DOI: 10.1080/07329113.2007.10756611

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