Federal Court affirms validity of recognition of Listuguj Mi’gmaq First Nation’s rights and Indigenous laws regarding its fisheries in agreement with Canada
Organizations representing non-Indigenous commercial fishers had sought to have recognition declared illegal and invalid
LISTUGUJ, QC October 19, 2023 — The Federal Court of Canada has upheld the recognition of the Listuguj Mi’gmaq First Nations’s rights and Indigenous laws regarding its fisheries provided for in a groundbreaking agreement with Canada. The decision, made public on October 12, 2023, largely dismissed a challenge to the agreement from organizations representing non-Indigenous commercial fishers.
“The court’s decision validates our aboriginal and treaty rights as well as our laws regarding our fisheries,” said Scott Martin, Chief of the Listuguj Mi’gmaq Government. “I hope that non-Indigenous fishers will now accept that our rights and laws are a constitutional fact. That is the starting point for true reconciliation.”
In April 2021, Canada and Listuguj signed a Rights Reconciliation Agreement on Fisheries (RRA). In the agreement, Canada confirms that Listuguj has a right to fish commercially for a moderate livelihood pursuant to the Peace and Friendship Treaties, as the Supreme Court of Canada recognized in the Marshall decisions. Canada also recognizes that Listuguj has its own Indigenous laws by which it governs its fisheries. The agreement creates a process that helps Listuguj and the DFO coordinate fisheries governance and enforcement.
A group of organizations representing non-Indigenous commercial fishers (the Applicants) applied to the Federal Court for judicial review of the RRA, seeking to have the agreement declared illegal, null, and void. The Applicants included the Regroupement des Pêcheurs Professionels du Sud de la Gaspésie, the Maritime Fishermen’s Union, the Prince Edward Island Fishermen’s Association, and the Gulf Nova Scotia Fleet Planning Board. Listuguj brought a motion to have the application thrown out prior to a hearing on the merits. That motion was largely successful.
The Applicants argued the RRA was invalid because Canada could not recognize aboriginal or treaty rights in an agreement before those rights have been declared by a court. The court dismissed this argument, finding that the Crown has an “obligation to seek negotiated solutions to Aboriginal or treaty rights disputes.”
The Applicants also argued that recognition of First Nations’ laws governing the exercise of fishing rights impinges on the Minister’s authorities under the Constitution and the Fisheries Act. Again, the court rejected this argument, finding that “[o]ne aspect of collective Aboriginal or treaty rights is the community’s right to exercise control over how its members exercise that right.”
The court did allow the application to proceed to a hearing on one question: whether Canada ought to have engaged with the Applicants prior to signing the RRA. The judge emphasized, however, “[i]f there is any duty on the Ministers to engage or involve the Applicants in the
negotiation process, it is not in any meaningful respect equivalent to the constitutional duty to consult Aboriginal peoples.”
“We are confident that if this case proceeds, we will prevail,” said Chief Martin. “We have inherent rights to fish and govern ourselves. These rights can no longer be denied.”
The decision makes clear that the interests of Listuguj and non-Indigenous fishers are on a different footing: “The section 35 rights asserted by [Listuguj] and acknowledged in the RRA are worthy of recognition and respect. The interests advanced by the Applicants arise as a matter of license or privilege – and exist at the discretion of the Minister.”
Despite the legal challenge, Listuguj and Canada have cooperated to implement RRA. These efforts have enabled Listuguj to exercise its treaty rights to fish lobster commercially in the fall, assume responsibility for enforcement in its lobster fishery, and, most recently, expand its lobster fishery into waters adjacent to the community that Canada previously considered unregulated.
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