DFO's Response to the Marshall and Sparrow Decisions Maritimes Region

November, 2006

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The 1990s were a time of significant change in Canada's Aboriginal fishery. Key Supreme Court of Canada decisions such as the Sparrow decision in 1990, and the Marshall decision in 1999 triggered this change. The guidance provided by these decisions on Aboriginal and treaty fishing rights has transformed the relationship between the federal government and Aboriginal groups involved in the fishery.

In the Sparrow decision, the Court found that the Musqueam First Nation in British Columbia has an Aboriginal right to fish for food, social and ceremonial purposes. In the Marshall decision, the Court affirmed a treaty right to fish in pursuit of a moderate livelihood under treaties signed with the British in 1760-61.

The Sparrow Decision and the Aboriginal Fisheries Strategy (AFS)

In the Sparrow decision, the Supreme Court of Canada affirmed that where an Aboriginal group has an Aboriginal right to fish for food, social and ceremonial purposes, that right has priority, after conservation, over other uses of the resource. The Court affirmed that the Government can regulate the exercise of this right.

To help DFO to manage the fishery in a manner consistent with the Sparrow decision, among other objectives, DFO launched the Aboriginal Fisheries Strategy (AFS) in 1992. The AFS applies where DFO manages the fishery and land claims settlements have not already put in place a fisheries management framework. Under the AFS, DFO enters into agreements with Aboriginal groups on fishery access and management. About two-thirds of these agreements are with communities in DFO's Pacific Region, while the balance is in Atlantic Canada and Quebec.

The AFS assists DFO in managing the Aboriginal component of the fishery by negotiating mutually acceptable and time-limited fisheries agreements with Aboriginal groups. Where DFO reaches agreement with an Aboriginal group, the Minister of Fisheries and Oceans issues a communal licence to the Aboriginal group that reflects that agreement. Where agreement cannot be reached with an Aboriginal group, the Minister issues a communal fishing licence to the community that reflects prior DFO consultations with the group - one that contains provisions the Minister believes are consistent with the Sparrow decision and subsequent decisions. The licence allows the group to fish for food, social and ceremonial purposes.

Fish caught for food, social or ceremonial purposes may not be sold. It is intended for the use of the community that is fishing, whether as food or part of their social and cultural traditions. Selling fish caught under the guise of a food, social and ceremonial fishery constitutes a violation of the Fisheries Act. Violations of the legislation are subject to enforcement.

DFO's Maritimes Region (encompassing the management of fisheries in the Bay of Fundy and along the Atlantic coast from the Gulf of Maine to the northern tip of Cape Breton) deals with 16 First Nation communities and the Native Council of Nova Scotia (NCNS). Of the total, 13 First Nation communities and the NCNS have AFS agreements. The three communities without AFS agreements are Indian Brook First Nation, Bear River First Nation and Acadia First Nation. DFO continues to work with these communities to establish a reasonable food, social and ceremonial fishery.

The Marshall Decision

In Marshall, the Supreme Court of Canada affirmed the treaty right to hunt, fish, and gather in pursuit of a moderate livelihood based on local treaties signed in the 18th century. In other words, communities fishing under these treaties may sell their catch. The Court affirmed that the Treaty right is a regulated right and that regulation of this Treaty right may be justified for the purposes of conservation or other compelling and substantial objectives. The federal government has the authority and responsibility for regulating the fishery, with conservation as the key consideration. The Court also encouraged the government and First Nations to negotiate rather than litigate to resolve issues around the treaty rights.

Following the Marshall decision, DFO launched an initiative to provide the 34 Mi'kmaq and Maliseet First Nations affected by the decision with increased access to the commercial fishery. The bands affected by the ruling are located in Nova Scotia, New Brunswick, Prince Edward Island and the Gaspé region of Quebec.

Initial Steps

In the first year of the Marshall Response Initiative's mandate, DFO successfully negotiated agreements, which included components such as vessels, gear, training, capacity building, and other start-up assistance, with 30 of the 34 affected First Nations. The four communities that chose not to negotiate an agreement were given tags to identify their gear, as well as licences to provide them the opportunity to participate in the commercial fishery.

To ensure the viability of a fishery that already had full participation, DFO implemented a program to facilitate the voluntary retirement of commercial fishing licences. This has allowed DFO to provide Mi'kmaq and Maliseet communities with the opportunity to enter the fishery without compromising conservation, or heavily impacting the traditional commercial fishers.

The process of negotiating and implementing fisheries agreements strengthened a co-operative relationship with Mi'kmaq and Maliseet communities. This respectful relationship with First Nations is an essential element of the federal government's response to the Marshall decision.

Longer Term

In February 2001, the federal government announced its longer term approach to the Marshall decision. Building on DFO's success to date, a federal negotiator was authorized to negotiate multi-year agreements that reflect the needs and strengths of each community. As in the past, agreements included increases in fishery access, assistance to build capacity, and development of opportunities for co-management of the fishery resource. The longer term agreements provided First Nations with more stability to plan their fishing activity, and a greater role in co-management.

At the same time as this activity continued at DFO, Indian and Northern Affairs Canada (INAC) began negotiating long-term agreements to address a wider range of issues, including Aboriginal and treaty rights to land, resources and self-government. While the two processes were complementary, they did not directly affect one another. An agreement reached with one federal department did not affect negotiations with the other.

The DFO longer term response to the Marshall decision is scheduled to conclude on March 31, 2007. The INAC-led process to reach long-term solutions on Aboriginal and treaty rights issues will continue to March 31, 2007. The 34 First Nations affected by the Marshall decision can participate in the INAC process, in which DFO is also involved.

Under the longer term Marshall Response Initiative, DFO negotiated multi-year fishery agreements with 31 of the 34 Mi'kmaq and Maliseet First Nations affected by the Marshall decision. Approximately 410 fishing enterprises have already been transferred under the fisheries agreements and an estimated 1,250 full- and part-time fishery-related jobs were created for First Nations members. Of the 16 First Nations in the Maritimes Region, 14 signed Marshall Response Initiative fisheries agreements and one - Indian Brook First Nation - has recently signed an Interim Fisheries Arrangement.

For more information, contact:

Communications Branch
Maritimes Region
902-426-3550