How a Musqueam court case in B.C. inspired a fight for fishing rights on the other side of Canada

Yahoo

3 days ago

Indigenous rights and title cases, including the renowned Sparrow and Marshall decisions of the 1990s, are top of mind for many Indigenous people as federal Bill C-5 — which took only a few weeks to pass through Parliament — aims to fast-track certain infrastructure and energy projects.
The Building Canada Act grants the Carney government, and future governments, the ability to bypass certain laws and environmental regulations if a project is deemed in the national interest.
Indigenous people across the country are warning that the bill's provisions could wind up violating their rights — rights that were affirmed after long battles in court.
Under section 35 of the Canadian Constitution, Indigenous people have the right to be consulted and, where applicable, accommodated if government action is going to infringe on any "Aboriginal and treaty right," as stated in the document.
But with Prime Minister Mark Carney using "shovels in the ground" language for the fast-tracking of Canadian build projects, many Indigenous people say they are worried about transparency and the potential erosion of consultation, in particular around mining projects and pipeline development.
Coastal First Nation rights
Hunting, gathering and fishing are integral parts of Indigenous cultures across Canada, with fishing especially important for those near a coastline.
The Sparrow and Marshall cases were initiated in response to the Department of Fisheries and Oceans Canada (DFO) arrests of two Indigenous fishermen. The arrests were for different reasons, and while they both contributed to Indigenous rights in Canada, they led to different outcomes.
The right to harvest seafood for consumption and as part of cultural traditions is what a Coast Salish First Nation in B.C. was trying to protect 35 years ago when Musqueam fisherman Ronald (Bud) Sparrow — who has since died — took the province to court.
LISTEN | Marking 35 years since the Sparrow decision:
The Sparrow case went all the way to the Supreme Court of Canada. In 1990, Sparrow won, affirming for the first time that Indigenous people in B.C. who didn't sign a treaty have the legal right to hunt, gather, and fish in their traditional territories for food, social, and ceremonial purposes.
Sparrow's victory inspired other Indigenous groups to pursue their own cases — including one on the other side of Canada, where Mi'kmaq fishermen in Nova Scotia launched their own court case and also won at the Supreme Court of Canada.
The Marshall case took Indigenous fishing rights a step further, expanding them to allow for "moderate livelihood" fishing, allowing Indigenous people to sell their harvest to make a living.
The Mi'kmaq, citing Sparrow, argued that their right to make a moderate livelihood from fishing and hunting was derived from the Peace and Friendship Treaties that they signed in the 1700s.
Sparrow decision
Sparrow was arrested by DFO for fishing using an illegal net.
In his fight against the charges, Sparrow argued that under section 35, Musqueam members have the right to fish on their traditional territory and any infringements on that right are invalid unless intended to protect fish populations.
"We had the whole country's attention, and there were a lot of people concerned that this was not the case to run, that we could set a bad precedent," Aaron Wilson, a Musqueam lawyer and a relative of Sparrow's, told CBC's The Early Edition.
"This was the very first time that the Supreme Court of Canada was interpreting section 35, so it really was something people were watching," he said, adding that the case inspired him to study law.
Despite the win in 1990, the struggle for fishing rights persists. Wilson, who says he does not speak on behalf of the Musqueam Nation, says that a core lingering problem following the Sparrow decision is that, due to declining fish populations and conservation measures, members of the nation rarely get to fish.
Similar sentiments are shared on the East Coast, where some First Nations say that hydroelectric dams are infringing on their right to fish because the dams are harming a traditional food source — eels.
Marshall case
In Nova Scotia, Mi'kmaq fisherman Donald Marshall was arrested by DFO in 1993 for using an illegal net and for fishing and selling eel out of season.
Marshall and his nation took Nova Scotia to court.
The case went to the Supreme Court of Canada, where Marshall was successful in arguing that he had the right to fish and make a moderate living from his harvest due to the Sparrow decision, section 35 and the nation's rights and title derived from the Peace and Friendship Treaties.
The Peace and Friendship Treaties were signed by the M'ikmaq, Wolastoqey and Passamaquoddy First Nations in Atlantic Canada between 1725 and 1779 with the British Crown, and state that signatories have the right to make a moderate livelihood from fishing and hunting.
Kerry Prosper, who was chief of the Paqtnkek M'ikmaw First Nation at the time that Marshall was arrested, remembers pursuing the case.
"DFO would be harassing us, we would see them coming and pack up our gear," Prosper told CBC News.
He says that the Sparrow decision had created controversy in B.C. and that non-Indigenous B.C. fishermen had travelled to Nova Scotia to warn of possible impacts on commercial fisheries.
"A wave of people came from B.C. to warn the non-native fishing groups that the M'ikmaw are going to be able to fish lobster and ruin their commercial fisheries," he said. During the Sparrow case, Musqueam proved their right to fish for social purposes, Prosper said. This sparked questions about what "social fishing" meant, and if it included economics or a moderate livelihood.
"Years later, here you have one of the biggest rulings in Canada, the Marshall case, that we have a right to make a moderate livelihood."
Struggle to exercise rights
Both Wilson and Prosper say that even though the Supreme Court ruled in favour of Indigenous rights, Musqueam and M'ikmaq peoples still struggle to exercise those rights.
In B.C., Wilson says Musqueam members aren't able to harvest fish as much as they want to due to declining fish populations and conservation regulations.
"Sparrow isn't just about harvesting salmon; it's also about stewardship and responsibility, the responsibilities that come with the rights we continue to exercise," he said.
"That is sometimes overlooked when it comes to what Sparrow is about, and that's the heart of what a lot of First Nations are thinking about when they move to advance and defend their Aboriginal and treaty rights, it's because there is a responsibility to be stewards over the territories and resources."
Prosper says that in Nova Scotia, hydro-dams are placed in the migration path of eels both up and downstream, and eels are cut into pieces when trying to migrate into the Sargasso Sea in Atlantic Canada, where they spawn.
"Eels are in trouble and there's no real talk about protecting what's left," he said.
Eels are a traditional food source, and he wants designers and developers to change hydroelectric dam technology to better support eel migration. Doing so could mean that the M'ikmaq can continue to exercise their culture, traditions, and rights.
Prosper is also urging better regulation of commercial fisheries to support fish populations.
He says that under Sparrow, commercial fisheries are supposed to be regulated to maintain fish populations, but instead, Indigenous food and recreational fisheries are regulated — and that's an underlying issue in exercising rights.
Prosper says that he grew up eating eel, but hardly sees anyone fishing for food anymore.
"Nobody wants to listen to what Sparrow is about, protecting food for generations to come."
Wilson says that it's time for Indigenous rights and title recognition to be put into action, highlighting the government's duty to consult with Indigenous people.