Indigenous Fishing Rights and International Human Rights Law

Looking at the Mi’kmaq fishing dispute through an international lens 

By: Rhea Murti (1L)

(Photo Credit: GoToVan on Flickr)

In the fall of 2020, Canadian media was inundated with what was depicted as a clash between Indigenous and non-Indigenous fishers. The Sipekne’katik First Nation, a Mi’kmaq band in Nova Scotia, had just launched its year-round moderate livelihood fishery, which was met with violence and property damage from both non-Indigenous commercial fishers and government officials. Today, the dispute is far from resolution, and a number of civil suits and criminal proceedings related to the 2020 incidents—including additional charges laid this January—are currently before the courts. 

The commercial fishers argued that the Mi’kmaq did not have the right to fish through licenses issued by their own band as opposed to permits issued by the federal government. This sentiment was backed by the Department of Fisheries and Oceans (DFO), which proceeded to seize hundreds of Mi’kmaq lobster traps. The DFO attempted to coerce Indigenous fishers into participating in the existing commercial fishery under the Department’s  regulatory authority, rather than establishing their own treaty-based fishery. 

This was not the first time that conflicts over Indigenous fishing rights had come to the fore. The Mi’kmaq and other Indigenous communities across Canada and the globe have faced this struggle for generations. At a fundamental level, the issue revolves around rights—human rights, treaty rights, and Indigenous rights. 

The Mi’kmaq nation’s right to fish was codified in the Peace and Friendship Treaties, which were signed in 1760 and 1761. This right, along with all other treaty and inherent Indigenous rights, was also constitutionally recognized and affirmed in section 35 of the Constitution Act, 1982. In 1993, when police arrested Mi’kmaq leader and activist Donald Marshall Jr. for a charge of illegal fishing, the Mi’kmaq community took his case to the Supreme Court of Canada, emphasizing their treaty right to fish as recognized in the Constitution. The Supreme Court ruled in favour of Marshall. 

However, in doing so, the Court in R v Marshall (No. 1) stated that the Mi’kmaq right to fish is explicitly limited to the economic outcome of satisfying livelihood needs and does not extend to the purposes of wealth accumulation. No direction was provided regarding how to distinguish livelihood from wealth accumulation. When the Sipekne’katik First Nation launched its moderate livelihood fishery to assert their recognized Indigenous, treaty, and constitutional rights exactly 21 years after Marshall, they were accused of operating an illegal fishery.

Several other Indigenous communities around the world have faced similar struggles in upholding their own fishing rights, and have had to do so without reference to national treaties or constitutional rights. In the absence of federal legislation, communities like the Saami in Norway have relied on international laws pertaining to ethnic and Indigenous rights. The Saami have invoked the International Labour Organization (ILO) Convention No. 169 regarding Indigenous peoples to argue that the government owes distinct obligations to the Saami as compared to other Norwegian fishers, since the Convention enshrines the need for preferential treatment.¹ 

Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a non-binding yet foundational text, clearly affirms the inherent human rights of Indigenous peoples, including the right to fish. UNDRIP explicitly states that “Indigenous Peoples have the universal right to pursue development in keeping with their needs and aspirations". As Indigenous legal scholar Jeffrey G. Hewitt has asserted, the Declaration asserts the need to create institutions that support the social, political, and legal infrastructure of Indigenous peoples.

Indigenous communities draw on international agreements, such as the UNDRIP and ILO No. 169, because many countries have not yet matched the same recognition of Indigenous rights at a governmental and societal level. As marine scientist Edward H. Allison and others have explained, communities like the Tagbanua of Coron Island in the Philippines and the Māori in New Zealand have used distinctive human rights arguments to secure fishing rights as part of a wider quest for self-determination, as well as for basic human rights, including adequate food, decent work, and the right to a dignified life.² Around the world, Indigenous fishers recognize that a failure by states to provide their citizens with these basic entitlements can legitimately be regarded as violations of international human rights law. 

In this way, international human rights laws have the potential to facilitate better access to fishery resources than what is often possible under the limited scope of national legislation. The effort of communities like the Tagbanua and the Māori is proof that international human rights have an important role to play in ensuring greater equity in fisheries management. Therefore, international human rights law and its national codification (where it exists) can be used as a basis for securing rights that states are currently neglecting. 

It should be noted, however, that some scholars have argued against equating human rights and fishing rights in a literal or sweeping manner. As fisheries governance scholars Andrew M. Song and Adam Soliman explain, human rights are universal in nature, while fishing rights differentiate between rights holders and non-rights holders. They suggest that fishing rights be promoted specifically as certain human rights—such as the right to culture—to strengthen the claim of marginalized fishing groups.³

In the context of rights, therefore, the launch of the new Mi’kmaq livelihood fishery  represents much more than simply a conflict between Indigenous and commercial fishers. It is an attempt by the Mi’kmaq to assert rights to self-determination as enshrined in international human rights law—in particular the UNDRIP. 

As Indigneous legal scholar Cheryl Knockwood articulates, the importance of the UNDRIP to Indigenous communities like the Mi’kmaq extends far beyond the issue of fishing rights, as “at the heart of UNDRIP is an international recognition of the rights of Indigenous communities to self-determination and all that follows from that”.⁴ Knockwood however emphasizes that while an implementation of UNDRIP would be important, Canada needs to also give full meaning to the existing treaties signed with the Mi’kmaq, instead of continuing to litigate against Mi’kmaw individuals when they are exercising their Indigenous and treaty rights.

Mi’kmaq fishing rights are entrenched internationally in covenants such as the UNDRIP and the ILO, as well as nationally in treaties like the Peace and Friendship Treaties, federal laws like the Constitution, and jurisprudence like Marshall. The fishery established by the Sipekne’katik First Nation is an attempt to realize these rights, as well as to resist the structures of colonialism that have sought to undermine Indigenous attempts to self-govern or to practice traditional ways of being. 

Fishing is therefore a powerful avenue through which Indigenous communities like the Sipekne’katik can assert their inherent and distinct rights. As these communities continue to draw on international human rights, Canada will need to keep apace with international norms by making important changes to federal law.

¹ Jeffrey G. Hewitt, “Options for Implementing UNDRIP without Creating Another Empty Box,” in John Borrows et al., Braiding Legal Orders (Montreal: McGill-Queen’s University Press, 2019) at 59. 
² Edward H. Allison et al., “Rights-Based Fisheries Governance: From Fishing Rights to Human Rights” (2012) 13:1 Fish and Fisheries at 19.
³ Andrew M. Song and Adam Soliman, “Situating Human Rights in the Context of Fishing Rights – Contributions and Contradictions” (2019) Marine Policy at 22.
⁴ Cheryl Knockwood, “UNDRIP as a Catalyst for Aboriginal and Treaty Rights Implementation and Reconciliation,” in John Borrows et al., Braiding Legal Orders (Montreal: McGill-Queen’s University Press, 2019) at 86.