After Marshall: Implementation of Aboriginal Fishing Rights in Atlantic Canada

Abstract

Both the Canadian Constitution and several Supreme Court decisions have guaranteed Canada’s First Nations special rights to natural resources including lands, waters, and fisheries. In acting on these rights, however, aboriginal peoples of Canada not been successful in arguing that their activities should be guided by the objectives, rules and protocols established by their First Nation, and not by those of the post-colonial Government of Canada. More recently, the 1999 Marshall decision of the Supreme Court of Canada recognized the Treaty Right of the Mi’kmaq, Maliseet and Passamaquoddy peoples to rely on natural resources for a ‘moderate livelihood’ and a ‘communal level of benefit’. While this decision was met with uncertainly and some hostility by the non-native population, it did result in the government offering new program support to First Nations communities engaged in the commercial fishery in the Canadian Maritimes. This paper assesses those programs and provides an analysis of what First Nation communities have lost and gained in the process