Tab C2 - Crown-Indigenous relationship overview

On this page

• Purpose
• Constitutional Framework
• Court Decisions and Treaty Obligations
• Departmental Mandate​
• DFO’s work with Indigenous Peoples has changed over time
• Strong regional and operational dimension
• Priorities and Expectations
• Annex A
• Annex B
• Annex C
• Annex D

Purpose

• Provide an overview of Indigenous rights and how they pertain to the Department's mandate and relationships with Indigenous Peoples
• Outline departmental initiatives and programs supporting Indigenous rights, interests and relationships

Constitutional Framework

Constitution Act, 1982 Section 35

• Aboriginal and treaty rights are recognized and affirmed under Subsection 35(1) of the Constitution Act, 1982. They are collective rights held by Indigenous communities.
• The Department does not define, interpret or determine the rights of Indigenous Peoples – it enables Indigenous communities to exercise their rights and interests.

Aboriginal and Treaty Rights

• Aboriginal rights refer to practices, traditions and customs that distinguish the unique culture of each First Nation and were practiced prior to European contact.
• E.g., the right to hunt, fish and carry-on traditional way of life on ancestral lands, and self-governance.
• Treaty rights are rights that are set out in historic treaties (signed between 1701 and 1975) or modern treaties (signed post-1975).
• E.g., the right to fish, hunt, and gather in pursuit of a moderate livelihood.

Court Decisions and Treaty Obligations

• The Crown–Indigenous Relationship is not based on a single event or law.
• It is a continuing legal and political relationship, shaped by constitutional and treaty commitments, clarified by the courts, and advanced today through legislative, regulatory, policy, and program tools.

Court Decisions:

• R. v. Sparrow (1990)
  • Affirmed Aboriginal right to fish for food, social and ceremonial purposes (FSC).
• R. v. Gladstone (1996); R. v. Marshall (1999); and, R. v. Ahousaht (2013)
  • Affirmed Aboriginal and Treaty rights to fish for commercial purposes in limited and specific circumstances.

Treaty Obligations:

• Fisheries-related issues are often a key component of treaty negotiations.
• The Department works to implement obligations arising from 26 modern treaties and four standalone self-government agreements.

See Annexes A, B and C for more information on historic and modern treaties and negotiation tables.

Departmental Mandate

The Minister of Fisheries, Oceans and the Canadian Coast Guard is responsible for:

• Fish access and allocation, including to Indigenous communities and organizations;
• Management of fisheries, including Indigenous fisheries, in collaboration with Indigenous communities and organizations;
• Decisions on major project proposals that impact Indigenous rights and interests;
• Responding to litigation and implementing Court decisions involving Indigenous rights; and,
• Negotiating and implementing modern treaties and time-limited rights recognition and reconciliation agreements.

Fisheries in Canada are:

• Of great social, cultural, and economic significance to many Indigenous communities;
• A public resource to which Indigenous Peoples have unique rights and interests;
• An important focus at Treaty and other negotiating tables; and,
• An economic driver and opportunity for self-determination for Indigenous Peoples.

Spotlight: Canadian Coast Guard (CCG)

• The CCG works in partnership with Indigenous coastal communities to ensure marine safety. Some Indigenous communities play a key role in the Coast Guard Auxiliary by responding to emergencies in their local waters.

DFO’s work with Indigenous Peoples has changed over time…

From responding to rights recognized through court decisions…

• Targeted policies and programs that supported collaborative management and increased fish access (e.g., Aboriginal Fisheries Strategy; Aboriginal Aquatic Resource and Oceans Management).
• Rights-based discussions at treaty negotiating tables only.
• Limited oversight of modern treaty implementation.

Broader relationship building that enables the implementation of Indigenous rights and interests.

• Investments in Indigenous commercial and collaborative fisheries programming contribute approximately $100M annually to Indigenous capacity and relationship building.
• Continued implementation of the Marshall decisions (moderate livelihood) with 34 Mi’kmaq and Wolastoqey First Nations in the Maritime provinces and Gaspé region of Quebec, as well as the Peskotomuhkati Nation at Skutik.
• Negotiating tables have moved toward the recognition of rights and interests as a starting point for negotiations, with more non-treaty tools available.
• Increasing oversight and accountability mechanisms to ensure the timely and effective implementation of modern treaty obligations.

Strong regional and operational dimension

West

• Implementing the right to fish for FSC purposes.
• Implementing the right to fish for commercial purposes in specific locations and circumstances.
• Few existing treaties - multiple First Nations are negotiating treaties or time-limited agreements.

North

• The North is mostly covered by comprehensive land claim agreements (i.e., “modern treaties”) and self-government agreements. 
• DFO-Indigenous relationship in the North is demonstrably linked to implementing these agreements.

Inland

• Inland area is largely covered by pre-1975 treaties with First Nations (i.e., “historic treaties”).
• Provinces and territories manage inland fishing – including Indigenous fishing - in most cases, while inland aquatic habitats remain under federal jurisdiction.

East

• Implementing the right to fish for FSC purposes.
• Implementing the right to fish in pursuit of a moderate livelihood for 35 Treaty Nations.
• Some historic treaties and three Modern Treaties (Quebec and Labrador) - some Indigenous groups are currently negotiating time-limited agreements.

Priorities and Expectations

Indigenous communities across Canada have different histories, priorities, and perspectives – many have expressed an interest in increased and diversified fisheries opportunities, Indigenous-led conservation, and a greater role in decision-making and management activities, including:

• More access to fish for FSC and commercial purposes, as well as aquaculture opportunities;
• Flexibility to choose how and when to fish;
• Means with which to harvest, add value, grow, and diversify economically; 
• Greater self-determination and self-government in their traditional territories and waters through joint or shared decision-making and recognition of Indigenous laws;
• Greater roles in fisheries, oceans, aquatic habitat, and marine waterways management activities; and, 
• Management of legal risk related to the assertion of the right to fish and sell fish in certain regions (e.g., BC).

The Department has a range of tools to support renewed relationships and partnerships and is enhancing existing tools and developing new approaches to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Action Plan in line with partners aspirations:

Indigenous Programs

Includes a range of programs such as the Atlantic, Pacific, and Northern Integrated Commercial Fisheries Initiatives, the Indigenous Collaborative Programs, and the Indigenous Fisheries Monitoring Fund.

Policy and Legislation

Encompasses legislative reviews, policy initiatives, and specific decisions that may affect Aboriginal and Treaty rights and interests.

Treaty Negotiations

Generally, address issues such as access/allocations, as well as collaborative fisheries and oceans management. Self-government agreements are also negotiated – led by Crown-Indigenous Relations and Northern Affairs Canada.

Non-Treaty Negotiations

Includes time-limited agreements that generally address similar issues as treaties but do not define rights and are not perpetual - intended to build relationships, develop capacity, and/or manage legal risk. Implemented through the Reconciliation Agreement Program, among other programs.

Engagement/Consultation

Touches on fisheries management plans and activities; marine safety and emergency response; science; fisheries and habitat protection; and marine use planning. Many modern treaties also include consultation obligations.

Meaningful Change​

Changes sought to legislation, regulations, or policies that provide for more meaningful implementation of Indigenous fishing rights, and participation in decision-making in the marine safety regime.​

Collaboration ​

New mechanisms and agreements in the management of fisheries, the protection of fish habitat and marine safety that allow for collaborative governance and shared decision-making.​

Capacity Funding​

Commitment to the co-development, co-design and co-delivery of sustainable, long-term capacity building platforms and services for Indigenous communities and organizations.​

Indigenous Knowledge

Incorporation of Indigenous Knowledge in decision-making for fisheries and oceans management and marine safety.​

Annex A

Annex B

Annex C

Annex D: Duty to Consult

Government is subject to the constitutional duty to consult and accommodate, and the requirement to justify any infringements of rights.​

Duty to consult​

Where the Crown contemplates conduct that might have an adverse impact on established or potential Aboriginal or treaty rights, it has a legal duty to consult with those Indigenous groups who hold (or potentially hold) those rights, and, where appropriate, accommodate their interests or concerns.​

Duty to justify ​infringements of rights​

Where legislation, its implementation or other government action infringes an Aboriginal or treaty rights, the infringement must be justified in accordance with the test set out by the Supreme Court of Canada.​