Book 2, Tab B2 - Crown-Indigenous relationship overview

Purpose
Aboriginal and Treaty rights are the foundation of the Government’s relationship with Indigenous peoples and give rise to duties and responsibilities that must be upheld
DFO has important relationships with Indigenous peoples that has been shaped by court decisions and treaty obligations
Foundational Court Decisions related to Fisheries
DFO’s relationships with Indigenous peoples have changed over time and have a strong regional and operational dimension
The department has a range of tools to support renewed relationships and partnerships
Key areas of work moving forward
Annex A: Map of “Historic Treaties” (pre-1975)
Annex B: Map of Comprehensive Land Claim Agreements and Self-Government Agreements (“Modern Treaties”)

Purpose

Provide an overview of Indigenous rights and how they pertain to the Department's mandate and relationships with Indigenous Peoples
Outline departmental initiatives and programs supporting Indigenous rights, interests and relationships

Aboriginal and Treaty rights are the foundation of the Government’s relationship with Indigenous peoples and give rise to duties and responsibilities that must be upheld

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

Section 35 rights 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.

Aboriginal and treaty rights may be set out or clarified in court decisions.

Aboriginal and treaty rights may be set out in historic or modern treaties (Annex A and B).

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

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 has important relationships with Indigenous peoples that has been shaped by court decisions and treaty obligations

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 time-limited rights recognition 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 CCG 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.

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

Treaty Obligations:

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

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

Foundational Court Decisions related 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): R v. Marshall (1999): Mi’kmaq, Wolastoqiyik, and the Peskotomuhkati Nation at Skutik have a treaty right to hunt, fish, and gather in pursuit of a moderate livelihood within their traditional territory (decision affects 34 First Nations and the Peskotomuhkati Nation at Skutik in Nova Scotia, New Brunswick, Prince Edward Island, and the Gaspé region of 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).

DFO’s relationships with Indigenous peoples have changed over time and have a strong regional and operational dimension

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); and
Rights-based discussions at mainly Treaty negotiating tables.

To proactively building relationships that enable the expression of rights and interests across an array of activities.

New programs have been proactively introduced (e.g., Atlantic, Pacific, and Northern Integrated Commercial Fisheries Initiatives)
Since 2015, collaborative management programs have invested an average of approximately $65 million per year;
Continued implementation of the Marshall decision (moderate livelihood) with 34 First Nations in the Maritimes and Gaspé region, and now also the Peskotomuhkati, including a new optional path for First Nations in the Maritimes and the Gaspé region to develop and implement their own moderate livelihood fishing plan (2021).
Negotiating tables have moved toward the recognition of rights and interests as a starting point for negotiations.

North:

The North is mostly 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

East:

Implementing court decisions for FSC fishing and the right to fish for commercial purposes (moderate livelihood) in specific locations and circumstances
Some historic treaties and three Modern Treaties (Quebec and Labrador) - some Indigenous groups are currently negotiating time-limited agreements

Inland:

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

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

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 access/allocations (e.g., pursuit of moderate livelihood), collaborative management, and oceans management.

Non-Treaty Negotiations

Includes tools such as self-determination discussions and agreements; collaborative science 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
Develop approaches to ensure we are meeting United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) obligations

Spotlight: Expectations from Indigenous People

DFO is seeking to deliver results in the context of high expectations from Indigenous Peoples for increased and diversified economic opportunities and a greater role in decision-making and management activities, including:

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; and,
More direct involvement in fisheries, oceans, aquatic habitat, and marine waterways management activities

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

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

Date modified:: 2023-02-28

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