Thank you very much.
My name is Naiomi Metallic and I am a Mi'kmaq woman from the Listuguj Mi'gmaq First Nation. I am also a lawyer and a law professor. I clerked at the Supreme Court of Canada with the Honourable Justice Michel Bastarache. I have practised in the area of aboriginal law and, as a full-time law professor since 2016, I have taught constitutional law and aboriginal law, particularly section 35, and the Supreme Court of Canada cases on those. I have some knowledge of circumstances in the Atlantic region in the various communities. I've also done work on a case involving social assistance and have been part of research projects that have looked at high unemployment and social assistance dependency and some of the causes around that. I know some of the issues around needs in the communities in the Atlantic provinces.
My submissions are primarily intended to clarify the law regarding Canada's obligations regarding a moderate livelihood fishery. The term “regulate” gets used a lot. Yes, the Supreme Court of Canada said, in both Marshall I and II, that Canada has the right to regulate treaty rights, but what I am offering, and what the materials that I submitted in advance attempt to do, is to show that “regulate” does not mean that Canada may legislate and limit the treaty right in whatever way it sees fit. There is far more to it than that.
To give some broad brush strokes to the submissions that I provided, when section 35 was introduced and the Supreme Court interpreted it for the first time in a case called Sparrow in 1990, the court acknowledged that section 35 had changed the rules of the game and that these rules would provide a strong check on the legislative powers of the government. That didn't mean that the federal government didn't have any legislative powers—recognizing that, particularly with respect to the federal government, there's a section 91(24) power in relation to indigenous people—but there was also a clear recognition that now, because of section 35, there would be limits on how far regulation in respect to aboriginal and treaty rights could go.
The focus of my paper looks at.... When there is an infringement of an aboriginal and treaty right, there is in fact a two-step test, a justification test, that the court has provided, and it has been extremely consistent in how this test works since the decision in Sparrow in 1990. The two prongs to this test are, first, that there has to be a valid objective and, second, that the government has to show that it has followed a certain process that ensures its treatment of aboriginal or treaty rights is in line with the honour of the Crown and the government's fiduciary duty with respect to indigenous peoples.
On the valid objective front, the court has identified that conservation and management of natural resources can be part of a valid objective. In fact, in the commercial context, in a case called Gladstone, the court also noted that there can be additional objectives, such as addressing economic and regional fairness within an industry, as well as historical reliance and participation of non-indigenous groups in an industry. But the court also makes a point in another case, called Powley, that it is simply not sufficient to just assert a valid objective. The government also has to bring evidence supporting that valid objective and that they're acting on it in good faith.
That is the valid objective prong, but there's more to it than that. I think often the media coverage on this issue tends to forget step two, and that's the harder part for governments to meet.
Step two, as I said, is about meeting Canada's fiduciary duty and honour of the Crown in addressing and accommodating aboriginal and treaty rights. Here, the court has said there are various things the government needs to do. First, it needs to show that it gave priority to the right. Depending on the right and issue, that priority can be different.
When we're talking about food, social and ceremonial rights, after conservation, the court has said this has to be an exclusive priority before the interests of other users of the fishery. Now, in a commercial context, in Gladstone and in both Marshall decisions, the court said that it's not exclusive priority, but nonetheless there still has to be priority given to the aboriginal right. So—