In 1999, Supreme Court of Canada ruled in the Donald Marshall case that a series of Treaties signed in 1760-61 by Mi’kmaq and the British Crown are still valid. Known as the Peace and Friendship Treaties, they provide that Mi’kmaq have the right to harvest and sell fish, wildlife, and wild fruit and berries to provide a moderate livelihood.
The Supreme Court of Canada has ruled that Nova Scotia Mi’kmaq do have the right to fish to earn a moderate livelihood. But there is still no recognized framework for HOW Nova Scotia Mi’kmaq can lawfully exercise this right without fear of harassment, equipment and catch seizures, and prosecution by law enforcement.
Nova Scotia Mi’kmaq are working as a Nation to determine what is required to implement our treaty right: what it means, what it looks like, and what rules should be put in place. The Assembly of Nova Scotia Mi’kmaw Chiefs is speaking with community harvesters to gain their insight and input.
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Frequently asked questions
Although it’s been more than twenty years since the right to fish for a moderate livelihood was confirmed by the Supreme Court of Canada, there are still more questions than answers. Here’s what we do know.
Mi’kmaq have the continued right to harvest and sell whatever kinds of products Mi’kmaq had to trade in the 1760s such as meats, furs, feathers and fish. While the treaties protect Mi’kmaw rights to harvest and dispose of some items, cutting and selling logs (commercial logging) is not protected as a “logical evolution” of a traditional trading activity.
While the Supreme Court spoke of the 1760-61 treaties as “local treaties” exercised by individual Mi’kmaq with community authority, the territoriality of the 1760-61 treaties is unclear and the approach of the Assembly of Nova Scotia Mi’kmaw Chiefs is that all Nova Scotia Mi’kmaq have the same rights throughout the province.
Yes. The treaty right to a moderate livelihood may be limited but there must be an overriding public purpose – such as conservation or public safety. Any infringement must be the minimum needed to meet the public objective and the Aboriginal group must be consulted before the limitation on the right is imposed.
Moderate livelihood fishery allows Mi’kmaq to fish and trade, making a moderate living for themselves and their families. Communal commercial fishery is a much larger outfit – allowing the Mi’kmaw communities to fish and trade in larger quantities in order to benefit the entire community.
The story of our rights
British and Mi’kmaq Nations made Peace and Friendship Treaties, establishing trading posts where Mi’kmaq could trade furs, feathers, meats and fish in exchange for basic necessities.
Donald Marshall Jr – a status Mi’kmaw from Nova Scotia – was charged and prosecuted for violating three federal fishing laws while fishing for eels to sell to help support himself.
The Supreme Court of Canada dismissed all charges, recognizing that the Peace and Friendship Treaties from 1760-61 affirm the right to earn a moderate livelihood from fishing.
We still cannot exercise our right to fish and sell our catch without fear of harassment, equipment seizures, and prosecution by law enforcement.
The Mi’kmaq of Nova Scotia are creating a framework that will govern how we can exercise our rights. We’re exploring how we – as Mi’kmaq – can provide for our communities and families today and ensure sustainability for tomorrow.
News & updates
Mi’kmaq should be able to Fish for a Moderate Livelihood
The Assembly of Nova Scotia Mi’kmaw Chiefs understands the frustrations of Mi’kmaq who are unable to earn a moderate livelihood from fishing, despite the Right being affirmed by the highest courts in the country.
Working as a Nation on Moderate Livelihood
In the 1999 Marshall decision, the court directed that the process of determining what is required to implement the Treaty Right to fish for the purpose of earning a moderate livelihood may best be resolved in consultation and negotiations.
Mi’kmaq Have a RIGHT to fish in Nova Scotia Waters
In the 1999 the Supreme Court of Canada affirmed the right for Mi’kmaq to harvest and sell fish, wildlife, wild fruit and berries to provide a moderate livelihood. It has been 18 years since that decision, yet the Department of Fisheries and Oceans (DFO) has still not recognized this Moderate Livelihood Fishery, which is distinct from a commercial fishery.