Kwe. Thank you, Mr. Chair. Honourable committee members, I am honoured to be here. I am here on behalf of the Assembly of First Nations, representing the region of Nova Scotia and Newfoundland.
I would like to begin by stating that it is beyond the scope and mandate of this committee to provide any definition of legal concepts such as what is a moderate livelihood or a livelihood fishery. To do so would be to undermine the nation-to-nation negotiations currently undertaken between the Mi'kmaq and the federal government. Rather, I believe the primary purpose of this hearing is to educate you, the leadership of this country, on some issues and perspectives that the Mi'kmaq are currently facing. To do so in five minutes or less will be a challenging task.
To begin, by way of background, we as Mi'kmaq have a long history within our traditional territory. We have our own creation story. We have legends that speak to a time when the ice started to walk on the land. Before the arrival of Europeans, we existed as independent nations governed by our own customs, values and traditions. As such, we have aboriginal and treaty rights that have been recognized and affirmed by the highest law, the Constitution, and the highest court, the Supreme Court of Canada, in this country.
A national chief once said that for a first nation to gain recognition of rights, three aspects need to be employed: direct action, dedication, and consultation and negotiation. For each of these, different people step forward and take on a specific role and responsibility.
Through many decades, the Mi'kmaq have gone through this cycle of direct action and litigation. It is within the last two decades that the Mi'kmaq of Nova Scotia have undertaken negotiations in a unified manner with the federal and provincial governments. As Mi'kmaq, we have our warriors, those on the front lines who take matters into their own hands in the face of injustice, people like Gabriel Sylliboy, James Matthew Simon, David Denny, John Paul and Tom Sylliboy, as well as Donald Marshall, Jr. and many others.
In order to create a law as aboriginal people, we have to break a law that is unjust in the first instance. Litigation often places the obligation of aboriginal and treaty law against provincial and federal law at the highest level, the Constitution of Canada.
I'll say a bit about the political landscape. We have salmon rights in Quebec in 1981, Denny, Paul and Sylliboy charges; in 1987, the royal commission report on the wrongful conviction of Donald Marshall, Jr.; in 1989, the Nova Scotia Court of Appeal in Denny, Paul, and Sylliboy, following with Sparrow; AFS agreements; Donald Marshall being charged in 1993; the Supreme Court of Canada's decision and the reaction in Burnt Church; we have, in 1999 and 2000, the Marshall agreements; also the made-in-Nova Scotia process in 2002, followed by rights reconciliation agreements in 2017.
Important to this is the rule of law, which provides, within the Constitution, in section 52, that:
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
All laws must trace their roots back to the Constitution.
To negotiate aboriginal and treaty rights, a government typically conducts its negotiations through a mandate from Canada. It was a rude awakening for me to realize that just because you have an aboriginal and treaty right it does not mean that the government will honour or uphold that right. In other words, there is no mechanism to force governments to honour the laws of this land.
You may ask how I know this.
I know this because Paqntkek and Bear River first nations here in Nova Scotia have been waiting 30 years for a mandate from Sparrow, an aboriginal right to fish, and 21 years for a mandate from Marshall for a livelihood fishery. What is endemic within the federal government in Sparrow through Marshall and still today is negotiation without recognition.
You might be thinking, “How can this happen?” Well, it's quite simple. You have a government official who says, “We don't have a mandate to talk about your rights, but here is an agreement. There is simply no other option.” How does government achieve this? They go band by band.
Still worse are the supposed rights by conciliation agreements of 2017. These agreements provide money to first nations to purchase access in the fishery under DFO rules. In return, first nations have to agree to suspend the practice of their rights for 10 years.
Negotiation without recognition, or access without self-government, is the status quo and default position of the federal government.