Canada's Actions Around the Mi'Kmaq Fisheries Rest on Shaky Legal Ground

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Mi'Kmaq fisheries, R v Marshall, Aboriginal rights, treaty rights, moderate livelihood


Acting on treaty right recognized in the Supreme Court of Canada’s decision 21 years ago in R v Marshall, the Sipekne’katik First Nation launched its moderate livelihood fishery in the waters off southwest Nova Scotia in early September. Since the fishery’s launch, some have suggested the Canadian government has broad authority to dictate how the Mi’kmaq’s treaty-based fisheries can operate.

While the Court in Marshall (and in a subsequent, related decision in Marshall 2) acknowledged Canada could lawfully “regulate” the treaty right, regulate does not mean Canada may legislate and limit the treaty right in whatever way it sees fit. Far from it. As two law professors who teach Aboriginal law, we have decided to weigh-in to provide clarification. Our clear answer is that Canada’s actions, thus far, would not meet Constitutional muster.