Controversy Surrounds Tribal Fishing Rights in Canada

This fall, tensions have escalated between tribal fishermen and non-tribal fishermen in Canada. After tribal fishermen began lobster fishing in September, Canadian news outlets reported instances of vandalism and physical intimidation by non-tribal fishermen. Most recently, a Mi’kmaq lobster pound facility burned, which some news sources attribute to non-tribal protesters. Tribal members assert they have a constitutional right to fish for lobster year-round, and non-tribal members claim that fishing out of season will harm the lobster population and commercial fishing. Controversies between tribal and non-tribal fishermen are not new in Canada or the United States, and courts are faced with analyzing the different legal rights of tribal fisherman, non-tribal fishermen, and various regulatory frameworks.

Understanding some of the fishing controversy requires an understanding of the unique tribal fishing rights stemming from sovereignty and self-determination. Generally, indigenous peoples assert that they are distinct, independent nations with the inherent right to self-determination and self-government. Many treaties signed by Canada and the United States with indigenous peoples reserved rights of access and control to traditional hunting and fishing grounds. Complex controversies continue to arise around control and use of shared fishing resources.

Enacted in 1982, the Constitution of Canada recognizes indigenous and treaty rights of First Nations, Inuit, and Métis peoples. The Constitution of Canada does not explicitly define these rights, but they generally include inherent rights to land and resources, as well as guaranteed contract rights between the communities and the Canadian government. Canadian courts have wrestled with defining indigenous and treaty rights in the context of managing Canadian fisheries. In 1990, the Supreme Court of Canada decided the Sparrow case, holding that Canada’s fishing restrictions could not infringe on the Musqueam Indian Band members’ inherent right to fish except for conservation purposes. After Sparrow, indigenous and treaty fishing rights receive priority over other uses, such as commercial and recreational fisheries. This includes commercial fishing equivalent to earning a “moderate livelihood.” Later court decisions confirmed these rights to fish and upheld their priority over recreational and non-indigenous commercial fishing. The current lobster fishing controversy involves Mi’kmaq fishermen asserting their right to earn a moderate livelihood through lobster fishing. While the extent of indigenous fishing rights are still being clarified through litigation, it is clear the Constitution of Canada recognizes the unique rights of indigenous peoples.

The United States Constitution, unlike Canada, does not recognize indigenous rights. In the U.S., tribal fishing rights derive from treaties, statutes, or executive orders. Multiple Presidential Executive Orders recognize tribal sovereignty and the government-to-government relationship between the federal government, states, and tribal nations. Additionally, the U.S. Supreme Court held in Menominee Tribe v. United States, 391 U.S. 404 (1968) that establishing a reservation includes the implied right of tribal members to fish on the reservation free from state interference. Under this framework, a tribe may even reserve off-reservation fishing rights. Generally, a state may not prevent or interfere with reserved off-reservation fishing rights unless the regulation is essential for conservation or the state can prove a regulation is necessary for safety. The federal government nevertheless has the authority to regulate tribal fishing rights. Federal regulation may stem from Congress exercising its plenary power to regulate fishing rights through statute. The U.S. Department of the Interior may also regulate tribal commercial fishing in some instances.

Like Canada, U.S. courts have struggled to harmonize tribal rights to fish off-reservation with state conservation and management goals. After a series of cases involving salmon fishing in the Pacific Northwest, the U.S. Supreme Court clarified that when a fishery is shared, a state may regulate commercial fishing so that on-reservation tribal fishing does not destroy the non-tribal share of the fishery. Unlike Canada’s moderate livelihood right, the U.S. Supreme Court established a 50% share of the harvestable fishery for commercial tribal fishermen to integrate the rights of tribal fishermen with state regulatory programs. Courts will likely continue analyzing fishing rights and resource allocation in light of evolving recognition of tribal rights, and understanding protected tribal rights is crucial to overcoming the controversies surrounding tribal and non-tribal fishing.