The Nova Scotia Lobster Fishing Dispute is an Affront to Canadian Law

Essay, Economy, Peter Best

The recent lobster fishery dispute shows us that, for the sake of the survival of Canada’s fish and lobster stocks, and to uphold the rule of law, Canadian governments must exercise their constitutional duty to prohibit illegal Indigenous fishing.

Indigenous people have no more “special relationship” with the land and water than anyone else. And they are no more “stewards” of the natural environment than the rest of us. Our species, Homo sapiens, has been laying waste to the natural environment and leaving a trail of disruptions and extinctions since we walked out of Africa about 100,000 years ago. 

Paleo-Indians relentlessly overhunted numerous species of animals to the point of extinction: mammoths, mastodons, sabre-toothed cats, giant ground sloths, pygmy hippos, and American camels. In the 19th century Indigenous hunters were enthusiastic partners with Euro-Canadians in rendering the beaver and the buffalo almost extinct. Only the no-longer economic cost of killing every single animal, followed by the government’s conservation initiatives, saved these species from extinction.

Today, unregulated Indigenous overhunting and overfishing threaten the continued existence of some Canadian wildlife species. 

In Northwestern Ontario, four Indian bands protested the creation of a “safe passage” land corridor to connect two woodland caribou herds. Red Rock Indian Band Chief Mathew Dupuis said: “We’re being force-fed this policy….We don’t agree with it. It will have downstream impacts on forest products mills. It will also affect mining operations and powerline planning.”1 Like other Canadians, Chief Dupuis would rather have mills and mining, that is economic opportunities for his people than free-ranging caribou.

In Prince Albert Provincial Park, the population of the plains bison declined from 500 in 2005 to only 120 in 2019. Anthony Blair Dreaver Johnston of the Saskatchewan Mistawasis Nehiyawak band admitted: “I know that it is Indigenous First Nation harvesters that are contributing to the dangerous level that the herd is at.”2 

In the Northwest Territories, the Bathurst caribou herd has shrunk from nearly 500,000 in the 1980s to about 8,500 now. In an effort to protect this tiny remnant, the government there proposed a total ban on the use of drones to spot and hunt the caribou. Some Indigenous groups opposed this ban, saying that it would be “a potential infringement to Aboriginal harvesters exercising their rights.” 3 In my own local Northern Ontario area, reliable anecdotes of Indigenous fishing during the spawning season, shooting deer after dark with the aid of night scopes and spotlights, and Indigenous hunters shooting cow moose out of season are commonplace. 

Europeans have been a worse destroyer of nature only because they developed better killing technology. But Indigenous people have fully appropriated modern technology to kill ever increasingly and are quickly catching up and proving to be the destructive equal of Europeans.

The notion of Indigenous groups and people living in balance and harmony with nature, especially in the present day, is a romantic myth.

Yet in the face of these undeniable truths our governments have stood passively by. They have failed to do their duty to enforce our conservation laws while Indigenous people, purportedly justified by their alleged sovereign, “nation to nation aboriginal and treaty rights”, which they say are not subject to oversight or regulation, have continually engaged in environmentally reckless and harmful “harvesting” activities. Our governments’ passivity in this regard has lent weight to these false Indigenous assertions and has caused serious additional risk and harm to our precious, vulnerable natural resources.

The Supreme Court of Canada, in R. v. Marshall clearly ruled that Aboriginal rights to “harvest” are subject to conservation laws.

The Court said: 

Section 35 aboriginal and treaty rights are subject to regulation, provided such regulation is shown by the Crown to be justified on conservation or other grounds of public importance…It is always open to (the government) to seek to justify the limitation on the treaty right because of the need to conserve the resource in question or for other compelling and substantial public objectives…. Absolute freedom in the exercise of a constitutionally guaranteed aboriginal right has never been accepted, nor was it intended…If the Crown establishes that the limitations on the treaty right are imposed for a pressing and substantive 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.4 

The important issue in the Nova Scotia lobster fishery dispute is whether or not the government can prevent the Mi’kmaw from fishing “out of season,” during the period when the lobsters are reproducing. 

The Mi’kmaw say they can’t be legally stopped, but the Supreme Court in Marshall disagreed:

The regulatory device of a closed season is at least in part directed at conservation of the resource. Conservation has always been recognized to be a justification of the paramount importance to limit the exercise of treaty and aboriginal rights…. Conservation, where necessary, may require the complete shutdown of a hunt or a fishery for aboriginals and non-aboriginals alike.

Even the lawyer for Marshall acknowledged that “it is clear that limits may be imposed to conserve the species/stock being exploited to protect the public safety.”

So the facts are clear. Indigenous groups are regulated by the law just like non-Indigenous Canadians.

Then why do our Crowns refuse to enforce conservation laws against Indigenous groups who, in countless situations across the country, hunt and fish without any regard for conservation laws and practices?

The answer is blowing in the political wind. 

Simple political cowardice by the governments is a large part of it. Our political elites would seemingly rather see our fish and wildlife depleted than ensure that our conservation laws are enforced. They fear the calculated, sanctimonious, faux wrath of the First Nations Establishment–the Chiefs and the Indian Industry–all living off the benevolence of the Canadian taxpayer.

Our elites would rather continue to remain passive in the face of the ongoing diminution of the sovereign right of our governments to make and enforce laws that are binding on all Canadians regardless of their race. 

This diminution began in earnest with the Supreme Court’s decision in the Haida Nation case, which in effect created a de facto third level of constitutional sovereignty–First Nations–and obligated all-natural resource project proponents to “consult and accommodate” any nearby First Nation. Our political elites’ response to this decision has permeated all government interactions with First Nations since that time. This decision partially explains why our police forces do nothing in the face of road and railway blockades, illegal occupations, flouted Court orders and reckless and unrestricted fishing and hunting.

The result is both a great risk to our fish and wildlife and the civic demoralization of our citizens because they see the rule of law being selectively applied on the basis of race. 

Both of these harms should not be allowed to go on any longer.

All Canadians should have the same rights and responsibilities, no more and no less.

 

 

Peter Best is a research associate with Frontier Centre for Public Policy and has practiced law in Sudbury for the past 45 years. He is the author of There Is No Difference- An Argument for the Abolition of the Indian Reserve System, (thereisnodifference.ca) which has been endorsed by retired Supreme Court of Canada Justice Jack Major.

”SeeEndnotes”

  1. Ian Ross, “Northwest First Nations Protest Woodland Caribou Conservation Plan: Red Rock Chief won’t be “Force-fed” Conservation Plan that Jeopardizes Development, Threatens Communities,” Northern Ontario Business, July 2019, 22.
  2. Colette Derworiz, “Bison in Prince Albert National Park declining: Face possible Extinction due to Overhunting,” The National Post, July 2, 2019, A4.
  3. Bob Weber, “Northerners Debate use of Drones in Caribou Hunt: Fears for Herd and Indigenous Culture” The National Post, July 8, 2019, A3.
  4. 1999 3 S.C.R. 533

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