Mi'kmaq, Maliseet and Passamaquoddy Response
March 9, 2001 

 

Introduction

"The Marshall decision has served to clarify certain treaty rights
related to access to the fisheries, and these are being addressed
in specific treaty and rights processes led by the Department of
Indian Affairs and Northern Development, and in fisheries access
initiatives of  the Department of Fisheries and Oceans. The AFPR
will not replace these specific processes for interpreting and
accommodating Aboriginal rights to harvest commercially, and
for addressing specific issues emerging from increased Aboriginal
involvement in the fisheries. 

However, the AFPR envisages the development of broad principles
for fisheries management that are relevant and meaningful to both
Aboriginal and non-Aboriginal fisheries in the four Atlantic provinces,
Quebec and Nunavut. For example, principles on conservation, shared
decision making and economic viability provide an important starting
point for developing subsequent fisheries strategies and measures. These
concepts should be enduring and common to the fisheries regardless of
who fishes."

Section 2, Page 7

 

The Atlantic Policy Congress of First Nation Chiefs Secretariat has reviewed the mandate of the Atlantic Fisheries Policy Review and the discussion document entitled "The Management of Fisheries on Canada's Atlantic Coast: A Discussion Document on Policy Direction and Principles". It is our opinion that the passage cited above captures some of the significant and fundamental problems with the policy review and accompanying discussion document. 

We see the outcome of this process as placing parameters or limits on the exercise of our aboriginal and treaty rights, regardless of any negotiations with the DFO and DIAND. This process and this document are indicative of the narrow view of aboriginal and treaty rights Canada maintains as they enter into negotiations with the Mi'kmaq, Maliseet and Passamaquoddy.

Section 1.3 of the discussion document also states that the ideas presented are based on "extensive consultation ".  It has been the experience of the Mi'kmaq, Maliseet and Passamaquoddy that Canada's view of consultation has been very different from our own. When we are being consulted on a certain topic, we prefer to know our deliberations are being considered consultation. Since this document has the potential to be highly prejudicial to aboriginal and treaty rights and since all deliberations and agreements regarding access after Marshall were "without prejudice", we are unable to determine when this consultation occurred. This has been the experience of the Mi'kmaq, Maliseet and Passamaquoddy in all dealings with the DFO and Canada in general.

A final point that needs to be addressed in this response is our very serious concern about allowing involvement of non-First Nation entities in the exercise of constitutionally protected aboriginal and treaty rights. While we recognize the need for more involvement in management from those who use the resource, we are very troubled by the prospect of non-government bodies having authority over the exercise of Mi'kmaq, Maliseet and Passamaquoddy rights. Canada has been found to have a "fiduciary duty" to aboriginal people and by delegating such authority to non-government entities, there are serious issues of, among other things, accountability, recourse and due process.

The Marshall decision has recognized that the Mi'kmaq, Maliseet and Passamaquoddy enjoy constitutionally protected rights to the Atlantic fishery resource. We are the only one of the so-called "stakeholders" who have this status and therefore, do not deserve to be grouped with others whose access to the resource can only be characterized as a "privilege". As constitutional rights holders to the resource, our interest extends well beyond the interests of others.  In fact, the very essence of the treaty relationship upheld by the Supreme Court of Canada in the Marshall decision is its "nation-to-nation" character. We have always maintained that we are more than just another user group and that we are entitled to joint management of the Atlantic fishery.

Parameters for Future Negotiations

It is clear that, while the AFPR states that it will not replace existing or future processes regarding "Marshall implementation", its outcome will establish limits on negotiation outcomes. In stating that concepts developed through this process "should be common to all fisheries regardless of who fishes", the DFO has implied that the Mi'kmaq, Maliseet and Passamaquoddy will be expected to conform to the new regime through processes with little regard for the inherent right of self-determination in fisheries management. In our opinion, these parameters demonstrate the narrow interpretation of Mi'kmaq, Maliseet and Passamaquoddy rights Canada intends to bring to the negotiating table.

Consultation

  "The Minister has available for regulatory purposes the full
range of resource management tools and techniques provided
their use to limit the exercise of treaty rights can be justified. If
the Crown establishes that the limitations on the treaty right are
imposed for a pressing and substantial public purpose, after
appropriate consultation with the aboriginal community, and
go no further than is required, the same techniques of resource
conservation and management as are used to control the
non-Native fishery may be held to be justified. Equally, however,
the concerns and proposals of the native communities must be
taken into account, and this might lead to different techniques of
conservation and management in respect of the exercise of the
treaty right."

SCC Decision re. Application for Re-Hearing of Marshall by the West Nova Fishermen's Coalition, Para. 44

 

The Supreme Court of Canada has, in the so-called "Marshall II" decision, provided guidance to the DFO with respect to their obligations to the Mi'kmaq, Maliseet and Passamaquoddy in respect to the treaty fishery. It is apparent to us that Canada is attempting to give the appearance that it is finally fulfilling its legal obligations to the Mi'kmaq, Maliseet and Passamaquoddy under Marshall through a process which purports to be based on "extensive consultation" with, among others, aboriginal groups. We believe that the AFPR is an attempt to fulfill legal obligations outlined by the Supreme Court of Canada within a very narrow interpretation of the Mi'kmaq, Maliseet and Passamaquoddy right to self ­determination in fisheries management. As stated in the introduction, in a process which is highly prejudicial to aboriginal and treaty rights, we are uncertain about when consultation occurred since First Nation meetings, negotiations and agreements with the DFO were without prejudice. Needless to say, we were not aware that we were being consulted on these issues. This pattern of "consultation without consent" has emerged time and again in Mi'kmaq, Maliseet and Passamaquoddy deliberations with Canada, whether through the DFO or other government departments.

Non-Government Involvement in Mi'kmaq, Maliseet and Passamaquoddy Access and Allocation

The Mi'kmaq, Maliseet and Passamaquoddy are very troubled by the proposed structures put forward in the discussion document regarding non-governmental decision-making regarding access and allocation. In spite of the many problems we see with the present system, there is at least some accountability in place, in law if not in practice, for the Mi'kmaq, Maliseet and Passamaquoddy regarding decisions of access and allocation. We are aware that by incorporating systems of "local" or "fleet based" decision-making structures, Mi'kmaq, Maliseet and Passamaquoddy interests may not be accommodated to our satisfaction. By agreeing to such a structure, we are binding ourselves to a system which may not be in our best interests and to which we may not have adequate recourse to protect our aboriginal and treaty rights. The prospect of being bound to such a system by virtue of a process such as the AFPR raises very serious concerns about the lack of due process with respect to aboriginal and treaty rights.

This situation, based on the nature of our treaty relationship, would be analogous to First Nations fishermen having input on Canada's decisions regarding non-First Nation allocation and access.

 

Joint Management

There is no basis in fact or in law to deny the nationhood of the Mi'kmaq, Maliseet and Passamaquoddy. The treaty relationship between the Mi'kmaq, Maliseet and Passamaquoddy and the British Crown was based on this fundamental concept. The Mi'kmaq, Maliseet and Passamaquoddy have always maintained that they are the stewards of their respective territories including the land, waters and all that inhabit them. We recognize that along with rights come responsibilities and we view our role as stewards as a fundamental responsibility. We have been denied the means and the ability to carry out our responsibilities for many decades. The Marshall decision represents to our nations a renewed hope that we might have the ability to restore our traditional roles in relation to our territories.

We assert that we have a right of self-determination, among many areas, in fisheries management. While the scope of the Marshall decision did not address the argument for self-determination in fisheries management , this in no way, diminishes our assertion

We do not mean any disrespect to other users of the fishery resource but we find it highly offensive that we are characterized in the AFPR as simply another user group. As we have already stated, we have a constitutionally protected right to the Atlantic fishery. We expect and demand of Canada nothing less than recognition of our right to jointly manage the fishery resource.  We have watched the degradation and destruction of our territories through greed and ineptitude for too long.  In the spirit of our treaty relationship, we seek recognition and treatment from Canada as nations.

 

Conclusion

The Atlantic Policy Congress is very concerned about the AFPR and the potential impact it may have on Mi'kmaq, Maliseet and Passamaquoddy aboriginal and treaty rights. The AFPR has paid token acknowledgement to the DFO's "legal obligations" regarding aboriginal and treaty rights stemming from decisions such as Marshall but it is apparent to us that it intends to only discharge legal obligations based on very narrow interpretations of aboriginal and treaty rights. We recognize the need for significant change in the present system and in particular, the need for conservation as the number one management priority, the need for orderly management and the need for shared stewardship. However, these changes must not occur at the expense of our aboriginal and treaty rights. Furthermore, it is not appropriate, based on the nation-to-nation nature of our treaty relationship, for the Mi'kmaq, Maliseet and Passamaquoddy to participate in a public review process.  In light of these concerns, we have advised all Mi'kmaq, Maliseet and Passamaquoddy First Nations and their membership not to participate in the AFPR consultation process.