Maliseet First Nations launch “right to fish” lawsuit against federal government

The Madawaska Maliseet and Tobique First Nations in New Brunswick have filed a lawsuit against the federal government and Department of Fisheries and Oceans (DFO) demanding compensation for losses from being denied fishing access to the snow crab in the Gulf of St. Lawrence.

“Aboriginal people have a treaty right to fish for a moderate livelihood,” says Chief Patricia Bernard of Madawaska Maliseet First Nation. Her government and that of the Tobique First Nation filed the lawsuit after more than 20 years of attempts to negotiate with the DFO. Bernard describes that period as frustrating and unproductive.

“We’ve reached a point where they’re completely ignoring us. I’ve written to the DFO and they won’t even reply. It’s one thing for them to say no and give us a reason, it’s another thing to completely ignore us.”  

In 2017, the biomass of snow crab increased and the DFO granted licences to Madawaska and Tobique but cancelled them in 2018 when the biomass decreased. In 2019, the biomass increased again but additional licenses were given to non-indigenous fishers and not the two First Nations. Tobique and Madawaska First Nation attempted to negotiate with the DFO but the DFO cut off correspondence. The DFO has a legal obligation to consult with First Nations.

Bernard notes that the DFO has avoided confronting the issue in court. “We used to go out with boats and traps to assert our treaty right and they would just destroy our traps instead of charging us, so it never went to court.”

The case is based on a precedent established by R v. Marshall, a Supreme Court ruling in a dispute between Mi’kmaq man Donald John Marshall and the Crown. The Supreme Court ruled that First Nations have the right to derive a “moderate livelihood” from fishing in their traditional territories.

The DFO has resisted implementation of the treaty rights of First Nations since the Marshall ruling. In 2000, members from Esgenoôpetitj First Nation (Burnt Church) in northern New Brunswick asserted their treaty rights to fishing by laying lobster traps and were attacked by DFO agents and the RCMP. The struggle and ensuing legal and political crisis was documented in Alanis Obomsawin’s film Is the Crown at War with US?

“The Gulf is our traditional fishing area; we have records dating back hundreds of years,” says Bernard. Because of DFO designations, they do not grant access to Madawaska and Tobique to fishing in the Gulf of St. Lawrence area.

“We have an extremely strong case,” says Bernard. “Other First Nations in New Brunswick have access, the Maliseet in Quebec have access, there’s really no way they can say we don’t have a right to fish.”

In a media statement jointly released by the two First Nations, Tobique Chief Ross Perley states, “DFO claims that it is committed to reconciliation, to a Nation to Nation relationship and to implementing Aboriginal and Treaty rights. However, it repeatedly fails to recognize and prioritize our established Treaty right to fish for a “moderate livelihood.” If DFO is seriously committed to reconciliation and a Nation to Nation relationship, it is time that these words actually are supported by action. DFO needs to stop making unilateral decisions that impact our Treaty rights without consulting us. DFO needs to do the right thing here by honouring the Treaties and following the law that has been laid down by the highest court in this country.”

Abram Lutes is is an environmental action reporter with the RAVEN Summer Institute and a member of the NB Media Co-op Board of Directors.