Illegal Fishing, Indigenous Treaty Rights and Reconciliation

1            Thank you for inviting me. I am a non-partisan witness with no personal interest at stake.  My relevant legal practice before my retirement was in analysing laws and judicial decisions, and drafting federal and provincial legislation.  I claim no particular expertise in either aboriginal treaty law or fisheries law. 

My Compliments to DFO

2          I begin by complementing the Department of Fisheries and Oceans and the Minister for implementing the Supreme Court of Canada’s recommendation to use negotiation rather than litigation to resolve First Nations issues.  The success of these negotiations is not determined by whether they eliminate litigation, but rather, whether the major stakeholders will accept the outcome.

The Marshall Cases are Unhelpful Now

3          After DFO defines and legislates what is now legal fishing everything else becomes illegal.  But setting the legal/illegal boundaries for First Nations will be difficult and controversial if you rely upon the two Marshall cases. 

Why Call This Reconciliation?

4          If a First Nation has a treaty right to fish out of season, without a license, for any species, then reconciliation is irrelevant because section 35 of our constitution states:

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

5          If there is full constitutional protection of such a broad treaty right what is there to reconcile?  And if there is no such treaty right then reconciliation would not create one.  It would still require both parties to sign a new treaty.  None of this requires the label “reconciliation”.

What Did the Marshall Cases Actually Decide?

6          Occasionally a court decision takes on an iconic value that far exceeds what the court actually decided.  The successful party overstates its effect, which is then amplified by the media, and becomes a popular myth.   The two Marshall decisions, expanded into the “Marshall myth” are a good example of this, as seen on the DFO website.

7          The Court only recognized very narrow treaty rights, and even these were subject to the vague, undefined and discriminatory limitation of a “moderate livelihood.”  The value of the Marshall cases today is vastly overstated, but honestly accepting their limitations is not a barrier to doing better for the Mi’kmaq.

8          Donald Marshall sold his catch of eels for less than $800, around $1,500 in today’s dollars.  That is not an income on which a small family could live, or maybe even cover a month’s rent.  The “moderate livelihood” limitation destroys most of the value of the treaty right today, when fishing vessels and equipment requires substantial capital investment.

9          I have read the evidence in several of your Committee’s meetings and reports.  Report # 4 dated May 2021, under the heading Implementation of the Marshall Decision says:

“With regard to lobster specifically, retired lawyer Andrew Roman argued that the “Marshall decision was about eels and on its face as worded cannot apply to lobsters or to any other species.”[22] William Craig Wicken, however, indicated there is “extensive documentation from the late 18th century on into the 19th century about the involvement of the Mi’kmaq in the lobster fishery.” [23]….”

10         Mr. Wicken may be right about the history, but his opinion cannot modify what the Supreme Court of Canada actually decided. (By the way, that decision was also informed by expert evidence from other historians.)  I stand by my opinion that the Court’s decision was limited to eels.

11       Also in Report #4, just above the Committee’s recommendations, you wrote:

“It is beyond the scope of the Committee to define what would constitute a moderate livelihood.”

12       Asking what would constitute a moderate livelihood that does not “extend to the open-ended accumulation of wealth” is like asking what is a moderate temperature. How large and expensive is a “moderate” house, on how large a lot?  There are many possible answers but no clearly right one, so whatever is decided will be controversial. 

13       It is important for non-lawyers (and even lawyers) to understand the distinction between a court’s actual reasons for decision (the ratio decidendi) and the other comments and discussions in the judgment (the obiter dicta) that provide useful background and advice, but have no precedential value. It is common for a court to define a constitutional issue broadly at the outset, before it has studied the evidence and heard full argument, but then to decide the issues on much narrower grounds. In Para 67 of Marshall 1 the constitutional question was set as fishing in general, but Marshall wasn’t prosecuted for fishing in general, just for fishing for eels.  Fishing for eels was the only fact situation for adjudication before the court.  This can be seen in several paragraphs of both Marshall decisions that specifically mentioned eels.

14       A judicial decision is only authority for the issue it actually decided, and not for all the background discussion or explanations. The two Marshall decisions were limited to acquitting Marshall for what he was prosecuted: fishing for eels and no other species.  Here are some quotations from Marshall 2 confirming this:

“23   .The decision in this particular prosecution is authority only for the matters adjudicated upon. …” 

What was adjudicated upon was fishing for eels, to earn a moderate livelihood.

“28    … The Crown in this case declined to offer evidence or argument to support the imposition of a licensing requirement in relation to the small-scale commercial eel fishery in which the appellant participated.”

“30   In this case, the prosecution of the appellant was directed to a “closed season” in the eel fishery which the Crown did not try to justify, and that is the precise context in which the majority decision of September 17, 1999 is to be understood.“

15         The “precise context” to be understood is eels. Neither of the Marshall decisions recognized a treaty right to catch anything else because fishing for eels is what he was prosecuted for and acquitted of.  

16       To treat the Marshall cases as granting a treaty right for species other than eels would be to expand the Court’s decisions into something new and different –  effectively, to rewrite the decisions.  No one but the judges of that Court, in a future case, can do that.                                                                                           

17       However, the Minister’s authority to license and to regulate was affirmed in both Marshall decisions.  Rather than trying to expand the Marshall decisions retroactively to create new treaty rights and label that “implementation” of Marshall the DFO can, and should, start with a new, post-Marshall approach.

What is Wrong with Trying to “Implement” the Marshall Cases?

18       Implementing the two Marshall cases through reconciliation with First Nations is unlikely to be helpful to them.  It will not create more lobsters or any other species, and, without sound, equitable policies for indigenous and non-indigenous fishers alike, DFO will not prevent continuing tensions and social unrest.  Any unfair, preferential treatment of any group will understandably cause serious conflicts, particularly in small, tightly knit fishing communities where everyone knows everyone else, and sees who is fishing for what.

“Moderate Livelihood” is Discriminatory Against First Nations

19       There is another important reason not to “implement” the treaty right recognized in the Marshall cases: the limit to a moderate livelihood.  The very idea of a “moderate” livelihood ceiling is objectionable because it treats indigenous fishers as second class.  Why is no one else limited to a moderate livelihood?  Why would the government implement, in 2024, a 1760 treaty “right” to be treated unequally? Why shouldn’t indigenous fishers have the right to an “open-ended accumulation of wealth”, subject to the same constraints as non-indigenous fishers?  

Recommendations for Regulation of Illegal Fishing.

20       Although Marshall’s defence was based on the 1760 treaty, he was acquitted primarily because the Crown chose, for its own strategic reasons, to present no evidence or argument supporting licensing requirements for eels. That unusual acquittal is not a firm foundation for defining what should be legal fishing for all species in 2024 and beyond.

21       Parliament doesn’t need to “implement” or rely on any treaty to do better for First Nations today than the treaty did 264 years ago. Just amend the applicable laws, and forget about the Marshall eel cases.  They are history.

22       First, as the Department is doing on the Atlantic side, consult, negotiate and if desirable, sign an agreement.  But don’t claim it is all about either treaty rights or reconciliation.

23       Second, conduct multi-party negotiations that properly consider not just First Nations but all the competing interests at stake.  Then amend any current legislation that is inconsistent with the negotiated outcome. However, if negotiations don’t succeed DFO will have to amend the current legislation as best it can, with a higher risk that there will be successful opposition.

24       In the two Marshall cases the narrow issue before the Court, and the reason for his acquittal, only took us so far, but not far enough. The rest is up to Parliament. We now need to get to the next level of certainty, but without pretending that we are doing something – implementing Marshall – when we are not, and shouldn’t be.

25       Just regulate the catch to be permitted to licensed fishers, both First Nations and non-First Nations, consistent with equal fishing opportunities and species conservation for both. Then you can focus on enhancing enforcement, about which there has already been much criticism. There is limited benefit in offering to implement treaty rights without adequate policing of poaching.  The right of all Canadian fishers to harvest fish and other aquatic species is undermined if you don’t provide effective policing.

Thank you. Questions?