Ask an Expert: Indigenous Law Scholar Constance MacIntosh on Modern Misconceptions About Treaty Rights

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News Article

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Treaty Rights, Mi'kmaq, Rights-Based Fisheries, Nova Scotia, Canada


When the Sipekne'katik First Nation of Nova Scotia launched its own Mi'kmaq-run, rights-based lobster fishery in St. Mary's Bay in September, non-Indigenous fishery workers in the region protested — some going so far as to cut traps and pull them from the water.

At the heart of the dispute is whether the fishery abides by the Sipekne'katik right to hunt, fish and gather in pursuit of a “moderate livelihood,” something enshrined in the Peace and Friendship Treaties signed in the 1700s and affirmed in a Supreme Court of Canada ruling 21 years ago. The Sipekne’katik affirm it does; some fishers disagree.

Because the Supreme Court’s decision did not define “moderate livelihood,” and a later clarification of its ruling noted that the federal government can still regulate Indigenous fisheries if “conservation” is a concern, some of the 34 Mi'kmaq and Wolastoqiyik First Nations across the Maritime provinces and Quebec's Gaspe region affected by the ruling are left with some uncertainty of how to exercise those treaty rights safely. Only three bands so far have official “moderate livelihood” agreements with the federal government.

Constance MacIntosh, Viscount Bennett Professor of Law and an associate professor in the Schulich School of Law, has taught and researched issues of Indigenous and Aboriginal law and governance since joining Dal in 2003 after years of working as a litigator on claims around the constitutional rights of Indigenous peoples. She explains the importance of the Peace and Friendship Treaties today and explores some common misconceptions about treaty rights and her hopes for more meaningful partnerships in the future.