Aboriginal Treaty Rights Are Subject To Regulation

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There has been much uncertainty and even violence on the matter of Indigenous treaty rights to fishing and hunting. For example as The Narwhal reported on June 5, 2023:

“In 2020, Fisheries and Oceans Canada shut the elver fishery down early, after confrontations broke out between Mi’kmaw fishers and federal fisheries officers. Later that same year, non-Indigenous lobster fishers torched a fishing boat, a truck and a building to protest the Sipekne’katik First Nation opening a small lobster fishery. As part of the same dispute, a mob surrounded a lobster holding facility in West Pubnico, N.S., trapping two Mi’kmaw fishers and four non-Indigenous workers inside.”

The aim of this article is to clarify the legal limits recognized by the Supreme Court of Canada on Aboriginal treaty rights: Briefly stated, the Aboriginal fishers and hunters are not granted unlimited freedom to fish and hunt whenever they choose. Their rights are subject to government regulations protecting the species, provided that this purpose is clearly stated in the regulations imposing any limits.

Second, when fishing or hunting in the season, the Aboriginal peoples may hunt or fish for the purpose of making a “moderate living,” in the words of the Supreme Court judgement. Presumably, the wording rules out large commercial fishing by Indigenous peoples. In other words they can fish and hunt for food.

The following quotes are excerpts from the postings by the Supreme Court of Canada regarding the Supreme Court ruling of September 17, 1999 which acquitted Donald Marshall, an Indigenous man, for fishing for eels out of season. The justification for the acquittal was that the federal government had not successfully argued that the restriction was justified on conservation grounds or other grounds of public importance.

“The 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. ….. The regulatory authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. Aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights. The Minister has available for regulatory purposes the full range of resource management tools and techniques, provided their use to limit the exercise of a treaty right can be justified on conservation or other grounds.”
“The Marshall judgment referred to the Court’s principal pronouncements on the various grounds on which the exercise of treaty rights may be regulated. The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non‑aboriginal users of the resource.”

An impartial and capable federal leadership would close fisheries to all when ‘”justified on conservation or other grounds of public importance.” Then, in accord with the Supreme Court judgement in the Marshall case, it would allocate an equitable portion of the fishing grounds to the aboriginal fishers once the fishing season was opened so they could make a moderate living and would be able to obtain the ‘necessaries‘ of life as stated by the Court. The repeated pronouncements by the Liberals, in particular some cabinet ministers, to partially quote the Supreme Court’s judgement without mentioning that the judgement also asserts the authority of the governments, both federal and provincial, to regulate and restrict the exercise of treaty rights such as fishing, hunting and gathering by aboriginal peoples “when justified on conservation grounds or other grounds of public importance” was misleading and tended to undermine social order and harmony.

“6 As further pointed out in the September 17, 1999 majority judgment, the framers of the Constitution caused existing aboriginal and treaty rights to be entrenched in s. 35 of the Constitution Act, 1982 . This gave constitutional status to rights that were previously vulnerable to unilateral extinguishment. The constitutional language necessarily included the 1760-61 treaties, and did not, on its face, refer expressly to a power to regulate. Section 35(1) simply says that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. In subsequent cases, some aboriginal peoples argued that, as no regulatory restrictions on their rights were expressed in plain language in the Constitution, none could be imposed except by constitutional amendment. On the other hand, some of the Attorneys General argued that as aboriginal and treaty rights had always been vulnerable to unilateral regulation and extinguishment by government, this vulnerability was itself part of the rights now entrenched in s. 35 of the Constitution Act, 1982 . In a series of important decisions commencing with R. v. Sparrow, [1990] 1 S.C.R. 1075, which arose in the context of the west coast fishery, this Court affirmed that s. 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.” ” [Emphasis added]

For a brief summary of the R. v. Sparrow case see the following from the Canadian Encyclopedia:

“In 1984, Ronald Sparrow, a Musqueam commercial fisherman, was charged with using a fishing net that was longer than his food-fishing licence allowed. Sparrow argued he had a right as an Indigenous person to fish protected by section 35 of the Constitution Act, 1982. The Supreme Court of Canada affirmed the fishing rights of the Musqueam.”

“27 With respect to licensing, the appellant [aboriginal accused] takes the position that once his rights have been established, anything which affects or interferes with the exercise of those rights, no matter how insignificant, constitutes a prima facie infringement.”
“This position cannot be correct. [Emphasis added] It has frequently been said that rights do not exist in a vacuum, and that the rights of one individual or group are necessarily limited by the rights of another. The ability to exercise personal or group rights is necessarily limited by the rights of others. The government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended. Section 1 of the Canadian Charter of Rights and Freedoms is perhaps the prime example of this principle. Absolute freedom without any restriction necessarily infers a freedom to live without any laws. [Emphasis added] Such a concept is not acceptable in our society.”
“As acknowledged by the Native Council of Nova Scotia in opposition to the Coalition’s motion, ‘Conservation is clearly a first priority and the Aboriginal peoples accept this’. Conservation, where necessary, may require the complete shutdown of a hunt or a fishery for aboriginal and non-aboriginal alike.”