Crown-Indigenous relationship overview

Purpose

1. Provide an overview of Indigenous rights and how they pertain to your mandate
2. Outline departmental initiatives and programs supporting Indigenous rights and relationships

Aboriginal and Treaty rights are the foundation of the Government’s relationship with Indigenous peoples…

“The existing Aboriginal and Treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed” -Section 35(1) of the Constitution Act, 1982

Aboriginal and treaty rights are:

• Collective, not individual rights: held by the Indigenous group, but may be exercised by members
• Specific in nature, not general: fishing rights are site-specific, group-specific, and species-specific
• Arise from traditional use or occupation of lands and resources.
  • Practices, traditions, and customs integral to the distinctive culture of the Aboriginal group claiming the right that existed prior to contact with the Europeans (for First Nation and Inuit groups) and prior to effective European control (for Métis groups)
  • Aboriginal title is a unique right to “exclusive” use and occupation of land that existed prior to assertion of sovereignty by Europeans
• May be set out in court decisions
• May be set out in historic or modern treaties (i.e. land claims agreements)

Note: Government of Canada guidance recommends the use of “Aboriginal” in titles, quotes, official names, legal matters or when referring to matters in the context of Section 35 of the Constitution Act, 1982.

… and give rise to duties and responsibilities that must be upheld.

Government is subject to the constitutional duty to consult and accommodate, and the requirement to justify any infringements of rights.

Duty to consult

Where the Crown contemplates conduct that might have an adverse impact on established or potential Aboriginal or treaty rights, it has a legal duty to consult with those Indigenous groups who hold (or potentially hold) those rights, and, where appropriate, accommodate their interests or concerns.

Duty to justify infringements of rights

Where legislation, its implementation or other government action infringes an Aboriginal or treaty right, the infringement must be justified in accordance with the test set out by the Supreme Court of Canada.

DFO and the Coast Guard have an important relationship with Indigenous peoples…

The Minister of Fisheries and Oceans is responsible for:

• Fish access and allocation, including to Indigenous communities and organizations
• Management of Indigenous fisheries
• Decisions on major project proposals
• Responding to litigation involving Indigenous rights
• Negotiating and implementing treaties and other time-limited agreements

Fisheries in Canada are…

• Of great social, cultural, and economic significance to many Indigenous communities
• A public resource to which Indigenous peoples have unique rights and interests
• An important focus at Treaty and other negotiating tables
• An economic driver and opportunity for self-determination for Indigenous peoples

Spotlight: Coast Guard

The Coast Guard works in partnership with Indigenous coastal communities to ensure marine safety. In particular, some Indigenous communities play a key role in the Coast Guard Auxiliary by responding to emergencies in their local waters.

… that has been shaped by court decisions and treaty obligations.

Court decisions:

• Indigenous peoples have an Aboriginal right to fish for food, social and ceremonial purposes (FSC)
• Indigenous peoples have an Aboriginal right to fish for commercial purposes in specific circumstances

See Annex A for more information on foundational court decisions

Treaty obligations:

• Fisheries-related issues are often a key component of treaty negotiations
• Fisheries and Oceans Canada (DFO) works to implement over 2,700 obligations arising from 25 modern treaties

See Annexes B and C for more information on historic and modern treaties

DFO and Coast Guard’s relationships with Indigenous peoples have changed over time…

From a relationship built on responding to rights recognized through court decisions related to fisheries…

• Policies and programs that supported collaborative management and increased fish access (e.g., Aboriginal Fisheries Strategy / Allocation Transfer Program, Marshall Response Initiative)
• Rights-based discussions at mainly Treaty negotiating tables

… to proactively building relationships that enable the expression of rights and interests across a wider array of portfolio activities.

• New programs have been proactively introduced (e.g., Atlantic, Pacific, and Northern Integrated Commercial Fisheries Initiatives, Oceans Protection Plan
• Negotiating tables have moved toward the recognition of rights and interests as a starting point for negotiations
• There are more options for non-Treaty agreements
• Engagement and relationship-building has increased across the portfolio
• Indigenous issues are increasingly considered in all areas of the portfolio

… and have a strong regional and operational dimension.

West:

• Implementing court decisions for FSC fishing and the right to fish for commercial purposes in specific locations and circumstances
• Few existing treaties →some Indigenous groups are currently negotiating time-limited agreements

North:

• The North is covered by comprehensive land claim agreements and self-government agreements (“modern treaties”)
• DFO-Indigenous relationship in the North is primarily related to implementing these agreements

Inland:

• Inland area is largely covered by pre-1975 treaties with First Nations (“historic treaties”)
• Provinces and territories manage inland fishing in most cases, while inland aquatic habitats remain under federal jurisdiction

East:

• Implementing court decisions for FSC fishing and the right to fish for commercial purposes (moderate livelihood) in specific locations and circumstances
• Few existing treaties (some historic) → some Indigenous groups are currently negotiating time-limited agreements

The department has a range of tools to support renewed relationships and partnerships

Indigenous programs

Includes a range of programs such as the Atlantic, Pacific, and Northern Integrated Fisheries Initiatives and the new Indigenous Habitat Protection Program.

Policy and legislation

Encompasses legislative reviews, policy initiatives, and specific decisions that may affect Aboriginal and Treaty rights and interests.

Treaty negotiations

Generally address issues such as Food, Social and Ceremonial (FSC); commercial fisheries; and, oceans management.

Non-treaty negotiations

Includes tools such as self-determination discussions and agreements; Incremental Treaty Agreements; and, litigation- related negotiations.

Engagement / Consultation

Touches on fisheries management plans and activities; marine safety and emergency response; science; fisheries and habitat protection; and marine use planning.

Key areas of work moving forward

• Participating in fisheries, oceans, aquatic habitat, and marine waterways negotiations at over 50 negotiation tables
• Exploring new approaches for fisheries collaborative management in partnership with Indigenous groups
• Developing internal and external capacity for ongoing collaboration with Indigenous partners
• Implementing the DFO-Coast Guard Reconciliation Strategy and accompanying results model

Spotlight: Indigenous expectations

• More access to fish for FSC and commercial purposes as well as aquaculture opportunities
• Flexibility to choose how to fish
• Means with which to harvest, add value, grow, and diversify economically
• More control in their traditional territories and waters through joint or shared decision-making
• More direct involvement in fisheries, oceans, aquatic habitat, and marine waterways management activities

Annex A: Key foundational court decisions relevant to fisheries

Canadian courts have found key Aboriginal rights related to fisheries.

Right to fish for food, social and ceremonial purposes

• R. v. Sparrow (1990): found that the Musqueam Indian Band (British Columbia) has an Aboriginal right to fish for food, social and ceremonial purposes (FSC) under section 35(1) of the Constitution Act, 1982

Right to fish for commercial purposes (in specific circumstances)

• R. v. Gladstone (1996): Heiltsuk (British Columbia) have an Aboriginal right to harvest and sell herring spawn on kelp.
• R v. Marshall (1999): Mi’kmaq, Maliseet and Passamaquoddy have a treaty right to hunt, fish, and gather in pursuit of a moderate livelihood within their traditional territory (decision affects 35 Indigenous groups in Atlantic Canada, Eastern Quebec)
• Ahousaht Indian Band and Nation v. Canada (2009 / 2018): Plaintiffs have a right to fish in their court-defined territories and sell that fish into the commercial marketplace (British Columbia)

Annex B: Map of “Historic Treaties” (pre-1975)

Annex C: Map of Comprehensive Land Claim Agreements and Self-Government Agreements (“Modern Treaties”)