August 29, 2020, dawned clear over southwest Nova Scotia. In the cabin of his lobster boat, the Mystique Lady, Matthew Cope was chatting with the other members of his crew as they chugged out from shore. The vessel was bound for the area where Cope, a member of Millbrook First Nation, had set his 150 lobster traps the day before. Cope had prepared those traps with plastic-encased copies of his status card, bearing his name, photo, and registry number. On the back of each of card, Cope included the statement “These traps are being fished under section 4 of the 1752 peace and friendship treaty.” He was prepared for some trouble.
For years, Indigenous fishermen had been operating in the area, asserting their constitutional right to fish and sell lobster for a moderate livelihood—efforts that had received pushback from non-Indigenous fishermen and the Canadian government.
In the waning days of summer 2020, the situation had grown even more strained, and on the Mystique Lady, the atmosphere was tense. On the radar screen, Cope could see a Canadian Coast Guard vessel in the same area as his traps. Drawing closer, he found Fisheries and Oceans Canada (DFO) officers hauling the traps onto their boat. Cope tried the coast guard channel on CB radio, then hollered at the officers to call him (he’d put his phone number on the buoys). Finally, Cope pulled close enough to the boat to talk, and gave the officer what he calls “the whole spiel”—he said DFO must be aware that they were violating his constitutional rights, that there was a duty to uphold the promises of the treaties, that what they were doing was wrong.
“[The officer] said ‘Yeah well, we’re still going to take them.’”
Altogether, officers took 90 of Cope’s traps; back on land, Cope called the DFO office, demanding that the traps be returned. A week later, DFO invited him for an interview. In a cramped room, bare except for a container of cleaning wipes on the table, Cope sat down for an intermittently tense and congenial conversation, during which Cope told two officers he wasn’t hiding anything. “I don’t even know why my traps are still being held under investigation when I told you guys clearly up front exactly what I’m doing,” he said, according to a video of the interview.
One officer told Cope the court would have to decide whether what Cope had been doing was legally protected.
For decades, Canada’s most lucrative fisheries—including lobster and baby eel, or elver—have been the subject of a fraught national conversation over Indigenous rights recognition. In 1999, Canada’s Supreme Court confirmed that the Mi’kmaq, Wolastoqiyik, and Peskotomuhkati Nations of what is now the Gaspé and Maritime regions had the right to fish for a “moderate livelihood,” based on 18th-century treaties, vindicating communities who’d been fighting for fishing rights for decades.
But the court didn’t define a “moderate livelihood”—and the government has not implemented fisheries based on Indigenous rights since then. In that void, uncertainty has proliferated on the water, in the courts, and among fishermen who thought they were protected by treaties settled centuries ago.
In a statement, a DFO spokesperson said that the Supreme Court did not clearly define moderate livelihood, stating only that the right did not extend to the open-ended accumulation of wealth.
“Each Treaty Nation has a unique vision for the implementation of their right to fish in pursuit of a moderate livelihood, and many Treaty Nations assert that defining this concept is the responsibility of each community. DFO works to further implement the Treaty right through the negotiation of agreements, programmatic initiatives, or other arrangements using tools that reflect Treaty Nations’ interests and visions.”
The statement also noted that in the last 21 years, DFO has provided $630 million to participating Indigenous communities to help develop fishing enterprises for multiple species, and that the Indigenous share of the $4.2 billion Atlantic fishery was 6.4 per cent as of 2021, up from 0.2 percent in 1999.
Cope, 38, grew up in the wake of the 1999 Marshall decision, as it is known, and as an adult has grown impatient waiting for the government to enact meaningful change in Indigenous fisheries.
In his interview with DFO in September 2020, Cope levied a challenge to the agency: either return his traps or charge him so that he could properly fight his case in court. The following winter, he received an answer: DFO charged Cope with fishing for lobster in a closed season, having lobster traps aboard his vessel during a closed commercial season, fishing for lobster without authorization, and not having the proper lobster tags. “I thought for sure that was going to make the courts answer some questions [about the right to a moderate livelihood],” Cope says.
Cope is one of a handful of Mi’kmaw fishermen challenging the constitutionality of Canada’s restrictions on Indigenous fishing. Dozens of Indigenous fishermen face charges in Canada’s Atlantic provinces—more than 50 in Nova Scotia alone—because they sought to exercise a right that the Marshall decision was supposed to have secured 25 years ago.
For some of these fishermen, the legal system is a last resort for resolving the questions that have plagued implementation of moderate-livelihood fisheries for decades. But the pursuit of these cases is stymied by costs and delays, leaving people like Cope torn between wanting to fight for their rights and feeling frustrated and fatigued by having to go through the process.
There’s a deeper tension at play too; some experts question whether funneling cases into the inherently adversarial—and colonial—legal system is even wise, or if it undermines the opportunity to achieve more peaceful coexistence.
Unquestionably, in the vacuum left by the lack of a political answer to the question of Indigenous fishing rights—which, for many nations, means the authority to manage their own fisheries—the issue will be sucked into the courts time and again. “It’s not a case where the courts are eagerly wanting to [get involved],” says Wayne MacKay, professor emeritus at Dalhousie University’s Schulich School of Law in Halifax. “They’re doing it as part of their duty, because the political levels of government have not solved it.”
These cases are fundamentally about promises made in treaties that were signed when Canada was not a nation but a British colony.
“[Canada] inherited these promises,” says Naiomi Metallic, professor at Dalhousie’s Schulich School of Law and member of Listuguj Mi’gmaq First Nation. “But you also had those promises reaffirmed by the Supreme Court in 1999. [The government has] an obligation to make good on their treaty obligations; they’re not doing that, and it’s forcing people into the criminal justice system.”
Cope and others didn’t go looking for a legal fight—they just wanted to fish. But in the troubled waters of fishing rights, they’re pushing back and asking, How will Canada honor those promises now?
The honor of the Crown forms the basis of Canada’s relationship with Indigenous people; it affirms that governments made treaty promises and are obliged to fulfill them, Mi’kmaw legal scholar Naiomi Metallic says. In some ways, it’s an abstract concept (with roots in the British notion that servants of the Crown must act honorably) underpinning the ethical and moral legitimacy of the state. But as more Indigenous nations and individuals assert their rights, that concept is also developing some muscle, Metallic says—including in July 2024, when the Supreme Court affirmed that Canada had breached treaties with the Anishinaabe of the upper Great Lakes, and that the honor of the Crown created a legal duty to negotiate compensation, after years of ignoring obligations.
In fishing, there’s a particular set of unfilled promises, having to do with the Marshall decision and the treaties before it; from the perspective of Mi’kmaw communities the government has yet to make good on the promise of fishing rights.
Honor is not the only thing at stake in this situation. There’s the health of fish stocks, and the well-being of Indigenous and non-Indigenous communities looking to make a living from them. Yet underpinning it all are the promises made when Europeans and the Mi’kmaq were first learning to live together on this land. Those promises are neither historical artifacts nor pure aspiration. They’re living ties, with benefits—and obligations—for both sides, and they persist. And so, decades after the court issued the Marshall decision, honoring those promises is the path by which a shared future will be built.