Atlantic chiefs united against DFO 

By Paul Barnsley

MONCTON, N.B. Things are at a standstill in the Atlantic First Nations fishery talks. The chiefs say it’s because the Department of Fisheries and Oceans isn’t respecting East Coast treaties.

Last year’s one-year fishing agreements are set to expire on March 31. As of March 20, Millbrook First Nation Chief Lawrence Paul says the ball is in the government’s court and it’s going to take a very significant change in position on the government’s part before any Atlantic First Nation will sign up again. That’s despite a commitment from Department of Fisheries and Oceans (DFO) Minister Herb Dhaliwal to spend up to $500 million over the next three years to help First Nations build their capacity to participate in commercial fisheries in the region.

The sticking point appears to be an unwillingness on DFO’s part to recognize that First Nations have a treaty right – and a constitutionally-guaranteed right-to fish. First Nation leaders are willing to co-manage their fisheries, but since they have a right to fish, they wonder why the government insists on regulating their participation.

Observers see it as very significant that the chief of Millbrook, the first community to sign a fishing agreement with DFO last year, is so outspoken in his insistence that his people have a right to fish and don’t need DFO’s permission.

“What they want to do, they want to implement a treaty right by way of a fishery agreement and we said no,” explained Paul, a co-chair of the Atlantic Policy Conference (APC) of First Nations Chiefs. “The only way that we’ll implement the treaty right is to sit down, by way of negotiations and not by way of a fishery agreement.” 

Bruce Wildsmith is the Dalhousie University professor of constitutional law who acted for Donald Marshall, Jr. in the now famous Supreme Court of Canada case that resulted in a decision recognizing the Mi’kmaq, Maliseet and Passamaquoddy peoples’ treaty right to fish in the region. He framed a 10-page, contract-like template for the Millbrook band that the other Atlantic First Nations have adopted as their own. The document contains several clauses that state the Indigenous peoples of the region have a right to fish and don’t need to sign any agreement with the federal government in order to lawfully access the fisheries. Chief Paul said DFO officials won’t accept that idea.

“When we went to Ottawa, the deputy minister up there, this is what he said. He said, ‘We’re talking about an accelerated process to implement a treaty right.’ I said there’s no way that any First Nation on the Atlantic is going to sign any agreement to implement any treaty right by way of a fishery agreement. He said, ‘We’ll word the agreements in such a way that it will be acceptable to the First Nations.’ But on the other hand, it will still be an implementation of a treaty right. 

“So I told him, ‘We’ve got a lot of Native people named Joe, but we haven’t got many named Slow. So, by reason of your comment, now we’ll have to go over that template, that the federal negotiator brings down, with a legal microscope and we’ll look at it very carefully.’ Which we did with our lawyers and they put together another template that protects our treaty rights,” Paul explained. 

“This is what we sent to them and told them this is what we would sign. We sent a copy of our template to all the First Nations in the Atlantic and they’re all standing together in solidarity and unity now and the federal government doesn’t know what to do.”

Minister Dhaliwal has repeatedly stated he has the authority to regulate the fishery and demonstrated last year at Burnt Church and Indian Brook that he will use force to make First Nations submit their treaty right to his regulation. As things stand now, the agreements will soon run out and there could be 34 Burnt Church’s during this year’s fishing season.

“Well, I couldn’t prophesize on that but we got our lawyers to put together a fishery agreement, a template, that protects our treaty rights. We gave that to the federal negotiator and he took it back to Ottawa and it was scrutinized by the Department of Justice,” Paul said. 

The sections that insisted that Ottawa recognize that Mi’kmaq and Maliseet fishermen didn’t need the federal government’s permission to fish didn’t go over well in Ottawa. The Atlantic chiefs’ template wasn’t accepted.

“All they did was make a couple of little changes to a couple of paragraphs. That wasn’t suitable to us so we said they’d have to go back and work on it some more,” Paul said. “We don’t know why they couldn’t sign the template we presented to them because it protects our treaty rights. But they didn’t want to do that.”

APC communications officer J.J. Bear said the chiefs in Atlantic Canada won’t be pushed into a British Columbia-type treaty process because they already have a treaty.

“What the chiefs are saying is, the federal government has to recognize the treaties we already have, and to implement those treaties, before we can have any discussions around any sort of treaty process,” he said. “It’s not the chiefs. It’s the government trying to sort of implement a B.C. treaty process on the East Coast. Right now, they’re not getting anywhere with it and, actually, in a meeting with the chiefs back in, I think it was January, the minister said, ‘Either you go with the treaty process or we’re not going to discuss treaties.’ It was sort of like a threat.”

Until the minister recognizes that he’s dealing with people whose right to fish does not come from DFO, the chiefs say, there will be no agreements.
“The chiefs are willing to sign agreements but (the government) has to negotiate in good faith, not just bring us an agreement and say sign it, sign it and we’ll give you millions of dollars,” Bear said.

The communications officer admitted that the minister had been pressuring the chiefs and the possibility they would be facing the kind of force employed against Burnt Church last year is on people’s minds. But, he said, any violence won’t be caused by his people.

“I don’t think there’s going to be chaos in the water. The only one’s that are going to be creating it would be DFO, not us,” he said. “Like before, like what happened at Burnt Church and Indian Brook. It wasn’t the public that was creating chaos, it was DFO. DFO was the one that was out there enforcing and running over boats.”