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Treaty Rights are Human Rights: A Letter to the Newly Appointed DFO Minister

In this evocative open letter to the DFO Minister, Camille Boulianne raises concerns about the current fishery management model in the Mi'kma'ki. The letter reinvigorates Indigenous understandings of the world, such as the netukulimk and traditional management practices. The netukulimk is a harvesting model that ensures the well-being of future generations. Overall, she calls for a substantial increase of Indigenous participation in fishery management where Indigenous communities live. However, this can only be possible when the government acknowledges that they do not have a monopoly over sustainability. Thus, the DFO must take seriously the knowledge and laws of the Mi'kmaq.

Dear Minister Murray,

According to the Peace and Friendship Treaties, the Mi'kmaq have the right to fish and hunt on the Mi'kma'ki (Mi'kmaq's territory) as long as the grass grows, the rivers flow, and the sun shines.[1] In exchange, settlers have the right to peacefully settle on Mi'kmaw lands. These promises of mutual aid and friendship were made as part of the first constitutional agreements of Canada. Do we want to live by our promises? Or will we continue the cycle of historical betrayal and exclusion against Indigenous peoples in the Maritimes?

Netukulimk

As you recently became the head of Fisheries and Oceans Canada (DFO), I wanted to let you know about netukulimk, a Mi'kmaw concept that opened my eyes to a world of respectful relationships, sustenance, and sustainability. Netukulimk has guided the Mi'kmaq 'management' of the Mi'kma'ki from time immemorial. It is part of a larger worldview that sees human beings as existing in a web of interconnected relationships between every living being and the lands, air, and waters. The premise of netukulimk is that "man does not 'own' nature, but is part of it."[2] According to the Mi'kmaq Grand Council and the Native Council of Nova Scotia, netukulimk is "the Mi'kmaq way of harvesting the resources without jeopardizing the integrity, diversity or productivity of the environment",[3] to ensure the well-being of future generations. It is still commonly practiced in Mi'kmaq communities, as illustrated by the recent Sipekne’katik Fishery Management Plan (SFMP).

Sipekne'katik First Nation (SFN) developed this management plan to ensure that species do not become endangered by their moderate livelihood fishery. The SFMP plan includes many references to netukulimk, but also requires scientific monitoring of species, the establishment of fishing limits, and the identification of protected zones. SFN has also incorporated habitat restoration and enhancement activities. According to netukulimk, the land is held for future generations. Thus, rejuvenation and restoration are natural and essential parts of the harvesting process.

As a Canadian citizen, I wish for a government able to realize that it doesn't have a monopoly on sustainability or conservation. Because of its poor history of resource management in the Maritimes, DFO has greatly eroded its trust relationship with Indigenous and coastal communities; amongst other situations, the decline of the Atlantic salmon stocks forcefully reminds us of this mismanagement. The Government of Canada mentions that from 1985 to 1995 onward, their stocks declined from 0.8 to 1.7 million fish annually to 0.4 - 0.7 million. Indeed, DFO has long been guided by economic incentives rather than environmental ones, resulting in a fishery more expensive and difficult to access, benefiting multinational fishing companies and disadvantaging small-scale coastal fishers.[4] In light of the environmental crisis, I wish for a DFO more open to different worldviews and knowledge systems that have so much to offer to attain a sustainable future of the fisheries.

The Context

The Marshall decision confirmed the Mi'kmaq treaty right to fish and hunt outside governmental regulations. However, in Marshall 2, the court mentioned that "[t]he federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds." However, such infringement must meet the test established in Sparrow. That is, to infringe on a treaty or Aboriginal right, the fiduciary obligation compels the Crown to act honorably in a trust-like relationship to protect treaty or Aboriginal rights as much as possible. This includes the bona fides obligation to take into consideration the efforts put in place by a community to ensure the conservation of the resources as well as the safety of their fishers.

Throughout colonization, the Mi'kmaq were gradually criminalized for exercising their treaty right to fish or hunt for food and moderate livelihood. This criminalization, coupled with the effects of forced sedentarization, centralization, and residential schools, resulted in a loss of ancestral knowledge and experience regarding the fisheries.[5] Today, many Mi'kmaw fishers have limited resources to buy appropriate boats and gear because of their historical exclusion from the fisheries. To ensure their safety in light of the capacity and condition of their boats and gear, some Mi'kmaw fishers prefer to fish in-shore when the water is calm, in other words, not during winter.[6] Imposing the same fishing season and regulations on both Mi'kmaw fishers and commercial non-Indigenous fishers puts undue hardship on the Mi'kmaq and limits the exercise of their treaty rights.

If Canada is serious about reconciliation, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and treaty promises, it should include Mi'kmaw knowledge systems and laws within the decision-making process regarding environmental regulations. The Mi'kmaq exercised conservation for thousands of years; therefore, their treaty rights should not be infringed upon on a conservation basis without taking into consideration their own centuries old conservation knowledge. Because the grass still grows and the sun still shines, it is time to collaborate with the Mi'kmaq to meaningfully implement their treaty rights and protect our environment.

Co-management as a Solution

As we are facing an unprecedented environmental crisis that will increase the occurrence of conservation concerns, I believe that the best way to meaningfully implement Mi'kmaq treaty rights is through the co-management of environmental and conservation policies. It is not enough to let the Mi'kmaq fish outside governmental regulations if environmental policies which did not benefit from Mi'kmaq's insights can override their treaty rights at any time. Indeed, article 18 of UNDRIP protects Indigenous peoples' right to participate in the decision-making process affecting their rights. Therefore, the Mi'kmaq should have the right to participate in the decision-making process regarding the protection of the environment with more than mere 'consultation' rights, because poor management of the ecosystem will inevitably affect their constitutionally protected rights.

However, to meaningfully implement co-management, Mi'kmaw knowledge and laws must be taken seriously

. Indeed, it too often happens that Indigenous peoples are 'consulted', but their knowledge and recommendations disregarded. For instance, the experience of the Indigenous sub-committee within the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), an independent panel assessing the status of endangered species, was very disappointing for Indigenous parties. It did not meaningfully include Indigenous knowledge or methods within the assessment process.[7] Ever since the Marshall decision, Canada and DFO have failed to uphold their fiduciary obligation towards the Mi'kmaq in the Maritimes. Thus, a relationship of true mutual aid and confidence is yet to be built, and a shared decision-making process is the most effective way to achieve it.

We cannot ask Indigenous peoples to simply reconcile with the colonial laws that caused their cultural genocide. Non-Indigenous peoples and governments must make compromises too, because "a one-sided exchange can only go for so long."[8] We always ask 'what place is there for you in our universe?', but we never dare to ask 'what place is there for us in yours?'[9]

So, please Minister Murray, take a step forward to uphold the constitutional promises the Crown made to Indigenous peoples through the Peace and Friendship Treaties and by ratifying UNDRIP. Take a step forward on behalf of all Canadians, and choose to respect netukulimk, practice respectful co-management, and work to achieve reconciliation.

Yours sincerely,
A concerned citizen


About the author

Camille BoulianneCamille Boulianne is an LLM candidate at McGill University and holds a Bachelor of Laws from Université de Montréal, where she was a member of the United Nations Delegation, the Armored Rights Operation, and a research assistant in constitutional law. At McGill, she was a research assistant in Indigenous and Aboriginal law, and currently works for the Groupe de recherche sur les humanités juridiques. In her research, Camille is particularly interested in the social and cultural mechanisms for the construction and revitalization of law by Indigenous communities.

 

[1] The exact words of the treaties were that they were made "with their heirs, and the heirs of their heirs forever." However, this evocative expression is greatly present in Indigenous oral traditions whenever there is a reference to treaty relationships and promises.

[2] Melanie Wiber & Chris Milley, “After Marshall: Implementation of Aboriginal Fishing Rights in Atlantic Canada” (2007) 55 J Legal Pluralism & Unofficial L 163 at 167.

[3] The Mi’kmaq Grand Council, the Union of Nova Scotia Indians (UNSI), the Native Council of Nova Scotia (NCNS) in cooperation with the Department of Fisheries and Oceans (DFO), “Mi’kmaq Fisheries Netukulimk: Towards a Better Understanding” (Truro, NS: Native Council of Nova Scotia, 1993) at 7.

[4] Russel Lawrence Barsh, “Netukulimk Past and Present: Mi’kmaw Ethics and the Atlantic Fishery” (2002) 37:1 J Can Stud 15 at 30-31.

[5] Kerry Prosper et al, “Returning to Netukulimk: Mi’kmaq Cultural and Spiritual Connections with Resource Stewardship and Self-governance” (2011) 2:4 TK Spiritituality & Lands 1 at 11.

[6] Wiber & Milley, supra note 2 at 175.

[7] Amber Giles et al, “Improving the American Eel Fishery through the Incorporation of Indigenous Knowledge into Policy Level Decision Making in Canada” (2016) 44:2 Hum Ecol 167.

[8] David Howes, "From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929" (1987) 32:3 McGill LJ 523 at 557.

[9] Kirsten Anker, Declaration of Interdependence: A Legal Pluralist Approach to Indigenous Right (Melbourne: Taylor & Francis Group, 2014) at 1.

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