Commercial fisherman have hired a lawyer to fight for their Constitutional rights
A case making its way through the courts in northern Ontario could have big implications for Indigenous people across Canada.
Commercial fishermen from Nipissing First Nation, on the shores of Lake Nipissing not far from the city of North Bay, are challenging their chief and council’s decision to limit how much they can fish.
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Eight of them have been charged by the Ministry of Natural Resources under the memorandum of understanding the provincial government signed with the First Nation two years ago.
This agreement sees the two governments patrolling and managing fishing on Lake Nipissing together and it means any First Nations fishermen who do not follow the rules and regulations set out by chief and council — which now include a fishing season for the first time — can be turned over to the ministry to face provincial charges.
“How do you kill an Indian? Take away his rights, that’s a good start.” says Nipissing commercial fisherman Lorne Stevens who hasn’t been charged, but is part of the group who hired a lawyer to fight for their rights,
“Next thing you know, the reserve is telling who can fish and who can’t fish. You’re a good Indian and you can fish and you’re a bad Indian, you can’t fish.”
Nipissing First Nation Chief Scott McLeod wouldn’t comment specifically on the cases before the courts, but he says some of the opposition in his community of 1,450 comes down to Indigenous people spending a lifetime fighting governments, even if it is their own.
“And now we’re making rules here and there’s still that muscle memory of fighting rules,” he says.
The Robinson-Huron Treaty of 1850, which enshrined hunting and fishing rights for the people of Lake Nipissing and much of northeastern Ontario and was later constitutionally recognized, was signed by McLeod’s great-grandfather.
“It’s a communal right. It wasn’t his rights. He signed on behalf of the community, so the community gets to decide the direction,” says McLeod.
“Yes, you do have individual rights, but they cannot supercede those of your neighbour.”
McLeod argues that the agreement with the provincial government and the tighter regulations on commercial fishing in general are in place to protect the fishery for future generations.
The commercial fishermen’s lawyer Michael Swinwood argues that First Nations governments have no authority over their own people.
“The chief and band council don’t represent the collective. They can only represent their master, who created them, the Government of Canada,” says Swinwood.
“Chief and band council acting as ghetto keepers: following the master’s orders, entering into agreements, in order to rob their people of their sustenance of their survival.”
Cracking open a Pandora’s box
Swinwood argues the 1850 Robinson-Huron Treaty that these fishing rights are based on is invalid, because the leaders who signed it were appointed by the colonial authorities and that the traditional collective decision-making process wasn’t followed.
If a court agrees with him, that could change far more than just who is allowed to fish and when. It could fundamentally change the relationship between northern Ontario First Nations and the federal government.
“It’s a Pandora’s box is what it is. And that’s not well understood,” Swinwood says.
“What they’re doing is they’re perpetuating apartheid and they don’t even realize it.”
Swinwood says he is set to meet with Nipissing First Nation and provincial government officials on Tuesday to discuss the case, but doesn’t expect it will lead to a resolution.
If this case does end up with a constitutional debate at the Supreme Court, as other Indigenous fishing and hunting rights challenges have, it could be years before a final decision is made.