Editor’s Note: This news story is the first in a two-part series examining the issue of defining ‘moderate livelihood’ as the 20th anniversary of the 1999 Supreme Court of Canada ruling in the Donald Marshall, Jr. fishing rights case approaches in Sept. 2019.
The commercial fishery saved John Paul’s life in a lot of ways. The Mi’kmaw captain of a vessel from Membertou First Nation, N.S., said the work gave him hope.
“Getting big cheques and feeling good,” the 41-year-old fisherman said. “There was a lot of poverty in Membertou when I was a kid, too. It wasn’t like what it is today, that’s for sure,” he added.
Membertou, as well as 33 other First Nation communities in Nova Scotia, New Brunswick, P.E.I. and Québec, operates a commercial fishery because of a landmark Supreme Court of Canada ruling, the Marshall decision. The court decision, which was handed down on Sept. 17, 1999, affirmed the treaty right for the Mi’kmaq, Wolastoqiyik and Peskotomuhkati to fish and sell their catch to earn a “moderate livelihood” — but 20 years after the landmark ruling, that key term has never been defined, leaving uncertainty over the extent of the rights-based fishery.
In the immediate months and years after the Marshall decision was handed down, many First Nations communities covered by the decision were given access to the commercial fishery with the help of federal funding from the Department of Fisheries and Oceans. That funding provided training, licences and vessels and in exchange, the communities signed agreements to operate their commercial fishery by DFO rules.
Membertou’s Chief Terrance Paul describes his community as economically progressive.
Last year, Membertou made $67-million in revenues, and the commercial fishery accounted for $3.7-million of that total, according to publicly available financial statements.
“The fishery is a very small part of that and it could be a much larger part of the growth and economic growth in Membertou,” said Chief Paul, who is also John Paul’s father.
Although the increased access to the commercial fishery has been positive for many communities in terms of economic opportunities, many feel the Marshall decision is incomplete because the moderate-livelihood fishery is not fully recognized by the DFO, unlike the commercial fisheries and fishing for food or for ceremonial purposes. Fishers, fisheries directors and First Nation leaders have been critical of how the federal government has handled the Marshall decision.
For many, including John Paul, the decision has always felt incomplete. “We don’t know what a moderate livelihood is,” John Paul, who has been a fisherman for 22 years, said. “We can’t go get a boat and go fish without [DFO] coming and busting our gear up, you know what I mean? And then we’ll end up in court.”
Defining a moderate livelihood
Shortly after the ruling, the court explained what it meant by a moderate livelihood in a clarification of the Marshall decision, known as Marshall II, on Nov. 17, 1999. Prior to the clarification being issued, some communities had immediately started fishing out of season which caused tensions between Indigenous and non-Indigenous fishers.
“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 clarification stated.
But using the term “moderate livelihood” was distinguishing it from the non-Indigenous commercial fishery, where the objective, you could say, was the creation of wealth, explained Bruce Wildsmith, the lawyer who successfully argued the fishing rights court case at the Supreme Court of Canada on behalf of his client, Donald Marshall, Jr.
“[Non-Indigenous] fisherman would fish for their wealth as much as you could acquire from the licensing that they had. So there was a limit on equipment and seasons and things, but there was no limit on dollars that could be earned, for example, from the lobster fishery,” Wildsmith said.
But a moderate livelihood, Wildsmith said, had an upper limit and the goal wasn’t to accumulate a lot of money, but to provide a livelihood “at a certain level.”
“So when I said there hasn’t been any livelihood fishery, it’s because all of the fisheries that were provided to the Mi’kmaq were through commercial licences,” Wildsmith said.
Hubert Nicholas, Membertou’s Director of Fisheries, said he believes DFO has the feeling that the problem has been addressed with the funding.
“It’s not overly concerning: we’ll just keep throwing money at it every year and the First Nation people just shut up after a while,’But that’s not the case,” Nicholas said.
But the money isn’t enough because the treaty rights aren’t being recognized, he said.
For Nicholas, a moderate livelihood means that every Mi’kmaw person can provide their family with food, clothing and shelter — the necessities of life — in the fishery.
“If you just use $70,000 as a rough estimate, when you times that by the 15,000 Mi’kmaq in Nova Scotia, there’s your rough estimate of what your revenue should be each year,” Nicholas explained.
The total yearly revenue would be in the billions.
“My thought is if we were to ever reach true moderate livelihood for the Mi’kmaq of Nova Scotia, we would own every single licence there is a Nova Scotia, every single commercial access licence,” he said.
What a moderate livelihood means to Curtis Falls, the Fisheries Director for Acadia First Nation, is a complicated question.
“I can’t really define a moderate livelihood,” Falls said. “I keep tripping over my own thoughts on that kind of stuff because I mean, you can’t think of it in terms of total revenue, because you know, if you’re fishing, running an efficient operation, if I make $100,000 say, then 50 or 60 per cent of that could be eaten up in overhead, you know, gear, bait, fuel, boat payments.”
Falls has been in the commercial fishery for 20 years and he knows how much the market can fluctuate, so putting a number on it is complex; it’s all relative, Falls said.
“I think we really got to be careful with that, because it’s more complicated than that. You know, when the courts throw it out, it’s like ‘define what a moderate livelihood is,’” Falls said. “Is $50,000, $60,000 enough? Is it like that? Well, it doesn’t quite work like that.”
Leo Bartibogue, a fisherman from Esgenoôpetitj, said that although his community sees royalties from the fish-processing plant, not everyone benefits from the fishery. Bartibogue said he was one of the first people from his community to set lobster traps in Miramichi Bay in 1999 following the Marshall decision.
“But the way I look at it here is we do have a high rate of unemployment, and it’s a small-knit community of 1,800 people, maybe 2,000. Everybody knows everybody. So what comes with lack of jobs? Not everybody is a fisherman,” said Bartibogue, who also works as a drug and alcohol director at Work Links. “So there’s a lot of things that people turn to, especially young people, which is drugs and alcohol.”
Chief Alvery Paul of Esgenoôpetitj, said he doesn’t know how exactly to define a moderate livelihood.
“[But] we can’t let the government decide it, we can’t let DFO decide it,” Chief Alvery Paul said. “It’s our moderate livelihood, it’s our fisheries. So we have to define it ourselves.”
Chief Terrance Paul said that the DFO should not be the regulator of the moderate livelihood fishery, but that Mi’kmaw people would like to work with them on accomplishing that.
“We still feel that we need to be able to fish under our fishing rights as they were confirmed in the Supreme Court decision,” Chief Paul said. “So we are working hard to accomplish that where we’re able to have a rights-related fishery and that itself needs to be regulated and we’re the people who want to regulate that.”
Membertou’s band employs eight crews: 32 fishers, including John Paul and his men. These jobs wouldn’t exist without Donald Marshall Jr.
‘Junior, keep fishing’
Driving the Cape Breton Shuttle along Kings Road in Sydney, the driver points out Wentworth Park. This is where Sandy Seale, a 17-year-old man, was murdered in 1971. Donald Marshall Jr., a Mi’kmaw man from Membertou, was with him that night. Marshall, who was also 17 at the time, was convicted of the murder and spent 11 years in prison before being acquitted in 1983 by the Nova Scotia Court of Appeal.
In 1989, a royal commission report found that Marshall’s charges and conviction were based on racism from the police, prosecutors, judge and — ultimately — the justice system that found him guilty.
“The tragedy of the failure is compounded by evidence that this miscarriage of justice could — and should — have been prevented, or at least corrected quickly if those involved in the system had carried out their duties in a professional and/or competent manner,” the inquiry report stated. “That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native.”
In 1993, a decade after his wrongful murder conviction, Marshall was charged again. But this time it was for fishing and selling eels he caught in Pomquet Harbour near Antigonish, N.S. without a licence.
“[Marshall] strongly believed that we had a right to fish for food and to be able to make a half-decent income from the fishery to help support your family,” Chief Terrance Paul said.
After Marshall got out of prison, he did a lot of fishing, Chief Paul said. Marshall knew he could make money selling his catch under his treaty right. The DFO kept telling him he wasn’t allowed to fish without a licence or tags, but did not want to press charges because they knew who he was, he explained.
After several conversations with legal advisors such as Bruce Wildsmith about how they should proceed, Chief Paul told Marshall: “Junior, keep fishing.”
Chief Paul, who was a close friend of Marshall, remembers his conversations with Marshall before DFO officers charged him. Marshall did not want to go through another trial, he said. Marshall was afraid of what the justice system would do to him — again.
“But he also accepted the fact that he would be the best person,” Chief Paul said. “I remember […] me saying to him, I just can see the federal government, the people that make the decisions, even the court system, the supreme court judges, when [Marshall’s] case comes across their tables they’re going to say ‘Oh no, oh no,’ — and that’s what they did.”
The memories of that time bring tears to Chief Paul’s eyes.
DFO officers called Chief Paul when they stopped Marshall in Pomquet Harbour.
“I said, ‘charge us, charge us,’ and I could even hear him repeating to the other officers in the room, saying, ‘He wants us to charge him. He wants us to charge him,’” Chief Paul said. “I said, ‘Let’s get this over with, charge us, let’s go to court because we feel that we have a right to fish.’”
Marshall lost in the lower courts in Nova Scotia but he appealed his case to the Supreme Court of Canada in the late 1990s. In Sept. 1999, the Supreme Court overturned the lower court’s decision. Marshall’s legal team, which included Wildsmith, argued that he had the right to sell fish to make a living under the 1760 and 1761 Peace and Friendship Treaties between the Mi’kmaq and the British.
“The accused’s treaty rights are limited to securing ‘necessaries’ (which should be construed in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth,” the ruling said. “Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi’kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right.”
Chief Paul was at a meeting for the Assembly of Nova Scotia Mi’kmaq Chiefs in Halifax when one of the assembly’s lawyers got off the phone with Marshall’s lawyers, who were at the Supreme Court in Ottawa. When everyone heard that the Supreme Court had sided with Marshall, silence filled the room, Chief Paul said. He felt a rush of emotion go through his body. “We finally did it, we won’t be going hungry anymore…[we can] be a part of the economy,” he remembers saying.
But Chief Paul knew that there was still work to be done and that any changes that would come to the commercial fishery to include Indigenous people would take time.
“We knew we had a responsibility, big responsibility, and that we need to regulate and organize ourselves and work with the government, work with society, work with people,” Chief Paul said. “So that’s what we’ve been trying to do ever since.”
This story is also being published by the Signal, the site for student work at the University of King’s College’s journalism school. Go to signalhfx.ca.
