A dispute in Ontario may help us understand ongoing tensions over the lobster fisheries on the East Coast and offer a solution.
The war over Indigenous fishing rights has played out before in Canada. As we reflect on recent violence in Nova Scotia over the lobster fisheries, it’s important to know if there are any precedents around the core issues and if prior instances can help guide us now.
The case of the Saugeen Ojibway of the Great Lakes provides some particularly useful insights to help reach a settlement to the lobster fisheries dispute.
Conflict between Indigenous peoples along the Great Lakes and the state has been around since the rise of non-Indigenous commercial and sport fishing around the 1830s and 1840s.
In the 1990s, things came to a head in the Saugeen fisheries around the Bruce Peninsula in Lake Huron. The case involved authorities placing charges against Saugeen fishers for exceeding the limit on a communal commercial fishing license. The Ontario provincial court ruled the Chippewas of Nawash – part of the Saugeen Ojibway First Nation – had rights lodged in the Bond Head treaty of 1836 and an Indigenous right “to fish for sustenance purposes in their traditional fishing grounds.”
This is similar to the language used in the Supreme Court of Canada ruling that affirmed the treaty rights of the Mi’kmaq, Maliseet and Passamaquoddy bands in Eastern Canada to hunt, fish and gather to earn a “moderate livelihood.” This provision lies at the heart of the lobster fisheries dispute.
The Crown versus Jones (1993) ruling that emerged from the Ontario case provoked a strong backlash from the non-Indigenous fishing community. A provincial inquiry noted the escalation of violence in the Bruce Peninsula, including burning of boats and assaults. It also noted the Ontario government’s inexplicable refusal to negotiate a settlement.
All of this should be familiar to Canadians, both in terms of the violence and the government’s liability in not coming to the table to negotiate a solution. It’s widely acknowledged now that the federal government’s failure to negotiate an agreement in Atlantic Canada defining terms like “moderate livelihood” only exacerbated conflict and tension between the two communities. It could be argued the government was quite negligent in this regard.
In 2000 – seven years after the Jones ruling – the Saugeen Ojibway and the provincial government concluded a five-year management agreement for the commercial fisheries around the Bruce Peninsula. Legal researchers Douglas C. Harris and Peter Millerd noted that provisions for commercial fishing included boundaries and seasons, data collection and sharing, and joint committees to recommend acceptable harvest levels. The agreement was renewed in 2005 and renegotiated in 2013.
These successive agreements demonstrate that such issues can be resolved.
The Jones ruling provided some insight to help settle the lobster fisheries dispute. The term “moderate livelihood” isn’t so nebulous when you see that it involves Indigenous fishing rights that exist along a spectrum. Canadian courts have long recognized Indigenous rights to traditional fisheries.
The first is a right to “food fisheries,” for direct sustenance of individuals and families. The second is the right to an Indigenous “commercial fishery” – a West Coast example recognizes a community’s right to a full Indigenous commercial fishery.
The court was also quite clear on grounds where the government could limit Indigenous rights to the fishery, for conservation and other reasons.
The term “right to a moderate livelihood” fits somewhere in the middle of the spectrum. It includes elements of a food fishery and a commercial one. Expanding on definitions established in the Sparrow ruling, the Jones ruling found that “the Saugeen Ojibway Nation has priority over other user groups in the allocation of surplus fishery resources, once the needs of conservation have been met.”
The right to sustenance, therefore, included commercial fishing, although the commercial right was directed “to a subsistence use of the resource as opposed to a commercially profitable enterprise.”
These rulings limit and better define the terms of the discussion. If properly followed in negotiations between the federal government and the Atlantic bands, there’s no need for non-Indigenous commercial fishers in the Atlantic region to be worried that respecting Indigenous rights will come at the expense of conservation.
Those involved in the lobster fisheries dispute should learn from the Saugeen conflict and follow the rationale set down in the Jones ruling. An agreement can be reached that will protect the resource for all.
Joseph Quesnel is a senior research associate with the Frontier Centre for Public Policy.
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