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Mi’kmaw treaty rights, reconciliation and the ‘rule of law’

Mi’kmaw peoples continue to pay a heavy price for the failure of Canada to uphold the rule of law

Canadian PoliticsIndigenous Politics

A man carrying the Mi’kmaq national flag at a protest in support of Indigenous fishing rights near Saulnierville, a three-hour drive west of Halifax, September 17, 2020. Photo by Trina Roache/APTN News.

On September 17, 1999, the Supreme Court of Canada (SCC) issued its decision in the R. v. Marshall case, confirming that the treaties of 1760-61 protect the Mi’kmaw right to hunt, fish, gather and engage in commercial trade. Yet, 21 years later and successive federal and provincial governments in Mi’kma’ki (Atlantic Canada) have failed to fully respect or implement the right of Mi’kmaw peoples to earn a livelihood from our own lands and waters. To make matters worse, when Mi’kmaw at Sipekne’katik (formerly Indian Brook First Nation) develop their own governance plan for their fisheries, they are met with racism, threats, violence and destruction of their fishing gear. Where is the so-called ‘rule of law’ when Mi’kmaw rights and lives are at risk?

Well, the short answer is that the rule of law is MIA. Non-native commercial fisherman, many of them identifying as Acadians, have openly threatened and harassed Mi’kmaw peoples at Saulnierville wharf in southern Nova Scotia in front of the RCMP. They have also gathered their fishing boats in large numbers to chase the much smaller Mi’kmaw boats, shoot flares at them and by Mi’kmaw accounts, try to ram their boats—all while the federal Department of Fisheries and Oceans (DFO) and the Coast Guard look on. These same non-native fishermen have also hauled Mi’kmaw lobster traps out of the water, cut their lines or damaged them. Again, law enforcement has done little to protect Mi’kmaw peoples or property.

In the Colten Boushie case in Saskatchewan, Gerald Stanley, a white farmer, shot and killed Boushie in the name of defending “his” property. He was found not-guilty for taking Boushie’s life. Farmers then rallied around Stanley, threatening to take the law into their hands—with lethal force if necessary—to protect property. In Winnipeg, a 16-year-old girl, Eisha Hudson, was shot and killed by Winnipeg Police over an alleged theft at a liquor store—this time to protect a few stolen bottles of booze. If you are starting to a see a pattern, then join the club. The lives of Indigenous peoples have long been considered both exploitable and expendable in the name of private property.

Land of the Mi’kmaw (Mi’kma’ki)

Back in Mi’kma’ki, the racism of many commercial fishermen that is usually well hidden behind their massive fishing boats, fancy trucks and large houses funded by the billion dollar fishing industry on Mi’kmaw waters, is on display for the whole world to see. What this spectacle of racialized violence shows is that the ‘rule of law’ is a fiction and always has been. These fishermen have been able to engage in crimes of violence and property destruction with apparent impunity, even flaunting the removal of Mi’kmaw lobster traps in the media. They have been able to violate many laws, rules and regulations in relation to how they operate their boats on the water by putting Mi’kmaw lives at risk—again with impunity. Yet, we all know that had Mi’kmaw peoples engaged in any of these violent or criminal acts, there would have been swift arrests and confiscation of our gear. That’s not the rule of law. That’s the law of rulers.

The law of rulers is when one power—like governments or corporations—decides what laws apply, how and when they will apply and what, if any consequences, there are for breaking those laws. This literally sums up Canada’s justice system in a nutshell. When governments or corporations (especially extractive industries) decide they want to exploit a resource, they have and continue to do so in blatant violation of Indigenous, Canadian and international laws. They do this as a matter of course and not by exception. More importantly, they do it because they can. Yet, when Indigenous peoples want to assert or defend their rights, we are often vilified, criminalized and ultimately prevented from doing so. This is even the case where the group in question, like the Mi’kmaw, have proven our rights in Canada’s own courts.

In this case, we are talking about the Marshall decision of the SCC in 1999 that upheld the treaty rights of Donald Marshall Jr. to fish and sell it to earn a living. Marshall was the same Mi’kmaw man who had been wrongfully convicted of murder and spent 11 years in prison before finally being exonerated. The Royal Commission that followed his release from prison noted that the justice system had failed him because he was “Native.” It is important to understand this context, because Marshall then went on to assert his treaty right to fish, knowing that the justice system was stacked against Indigenous peoples. The likelihood of Indigenous peoples facing arrest, fines or imprisonment for peacefully asserting our rights is the norm—not the exception.

As expected, Marshall was charged and convicted of violating federal regulations for fishing eels “out of season” and selling them. It was also no surprise that the Court of Appeal upheld those convictions. It wasn’t until the SCC considered the case that they acquitted Marshall of all charges. Yet, Mi’kmaw people did not have much time to celebrate the win, as Mi’kmaw fishers in Esgenoopetitj (formerly Burnt Church First Nation) were targeted for racialized violence by non-native fishermen, like what we are seeing this week in Nova Scotia. Non-native fishermen used to their boats to create a menacing flotilla on the water to stop Mi’kmaw people from enjoying their treaty rights to fish, all while the RCMP and DFO looked on. They destroyed boats, gear and engaged in racist acts of violence against Mi’kmaw fishers. Law enforcement responded not by stopping the violence of non-native fishers, but by arresting Mi’kmaw peoples, after they ran over their boats, forcing them to jump to save their lives. They were then beaten and arrested while still in the water.

This is how racism manifests in Canada. It is violent, it is exploitive and it endangers Indigenous lives. And it doesn’t matter what Indigenous, Canadian or international laws say—governments and corporations ignore the laws that don’t suit their economic or political interests or twist other laws to criminalize us instead. The law in Canada protects and prioritizes Mi’kmaw Aboriginal and treaty rights over all other interests except for conservation. Yet, the law on the ground is very different. Deep-rooted racism in society coupled with centuries of economic gain from our dispossession, have resulted in a powerful status quo vigorously defended by governments, corporations and law enforcement.

The Marshall decision of the Supreme Court of Canada in 1999 upheld the treaty rights of Donald Marshall Jr. (pictured), to fish for a “moderate livelihood.”

Our lands, waters and resources have always, and continue to be part of our sovereign Mi’kmaw jurisdiction, but Canada’s starvation policies, political bullying and threats of law enforcement and incarceration have kept our peoples out of our own economies and impoverished. It is important to remember that our Mi’kmaw laws and autonomous jurisdiction have never been ceded, surrendered or extinguished and are now also protected at the international level in various human rights treaties, conventions and declarations which Canada has ratified. It is now also specifically protected in the United Nations Declaration on the Rights of Indigenous Peoples—a set of laws by which Canada has agreed to be bound.

Mi’kmaw peoples pay a heavy price for the failure of Canada to uphold the rule of law. The failure to respect court decisions like the Marshall case results in ongoing breaches of our inherent, Aboriginal and treaty rights, not just in terms of enforced poverty and overincarceration, but also the violence and risk to our lives by those who have long benefitted from the spoils of centuries of racist, violent and genocidal laws, policies and practices. Add to this the number of businesses and shops that have denied products and services to Mi’kmaw peoples in racist solidarity with the non-native fishermen, or the likelihood that our children will be harassed at school, and you can see how this is bigger than the right to fish.

We are at an important crossroads right now in the Crown-Mi’kmaw relationship. These racist and violent acts dishonour Donald Marshall Jr., and all Mi’kmaw peoples. The Assembly of Nova Scotia Mi’kmaw Chiefs issued a State of Emergency due to the threats and violence against peaceful Mi’kmaw fishers. Today, the Mi’kmaw Chiefs extended the declaration due to ongoing violence by non-native fishers. With declarations of support and solidarity from the Chiefs of Ontario, Assembly of Manitoba Chiefs, Union of BC Indian Chiefs, Native Women’s Association of Canada and many more, the time to negotiate in good faith is now. We are united in defence of our rights.

In the words of Mi’kmaw Senators Brian Francis and Dan Christmas:

Canada must fully embrace the spirit and intent of the ruling of the highest court in the lands in respect of Moderate Livelihood. Unless and until this occurs any sense of meaningful reconciliation cannot be realized.

Pam Palmater is a Mi’kmaw citizen and member of the Eel River Bar First Nation in northern New Brunswick. She is a longtime CD columnist, and has been a practicing lawyer for 20 years. Currently, Pam is a Professor and the Chair in Indigenous Governance at Ryerson University.


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