by James A. Michael, MMNN Contributor

Re: “DFO, First Nations Rights Reconciliation fisheries negotiation tables ‘are not open to members of industry,’” your Aug. 17 story about a survey commissioned by fishing industry associations as part of their lobbying effort to be included in Department of Fisheries and Oceans consultations with First Nations.

To understand this issue, it is important to understand the significance of Aboriginal and treaty rights in the context of the commercial fishery.
The Mi’kmaq in Nova Scotia have a legal right to fish and to sell that fish to earn a moderate livelihood. This is a treaty right recognized by the Supreme Court of Canada. As a treaty right, it is enshrined in the Constitution through Section 35 of the Constitution Act, 1982.

As your story referenced, the Supreme Court of Canada dealt with this issue in the Marshall decision in 1999. The Marshall case came before the court as an appeal of a conviction against Donald Marshall Jr.

Mr. Marshall had been convicted of selling eels without a licence, fishing without a licence and fishing during the close season with illegal nets in Pomquet Harbour, Antigonish County. He caught and sold eels to support himself and his wife.

The court found that the prohibitions on catching and retaining fish without a licence, on fishing during the close time, and on the unlicensed sale of fish interfered with Mr. Marshall’s treaty rights as a Mi’kmaw person. This included his treaty right to fi ...