On October 21, 2021, the Southern Gaspésie Professional Fishermen’s Association (“Regroupement des pêcheurs professionnels du sud de la Gaspésie”), the Maritime Fishermen’s Union, the Prince Edward Island Fishermen’s Association and the Gulf Nova Scotia Fleet Planning Board asked the Federal Court to invalidate the 2021 Fisheries Rights and Reconciliation Agreement between the Listuguj Mi’gmaq Government and Canada. This five-year agreement establishes shared and collaborative fisheries management between the Mi’gmaq community and the federal government.
On October 12, the Federal Court agreed to hear some of the plaintiffs’ claims on the merits. The claims regarding the recognition of rights granted under the agreement were declared invalid by Justice William F. Pentney, who noted that the federal government has the power to recognize and give effect to ancestral and treaty rights. Such rights that have been recognized by the federal government are protected by section 35 of the Constitution, even if they have not yet been recognized or upheld by a court.
However, the Court upheld the claim that the non-Indigenous fishermen were not consulted in the process of reaching the agreement, while they had the right to act in the public interest. However, the judge specified that the law had not yet established the criteria for such a consultation and the obligation to include non-Indigenous persons who have an interest before reaching an agreement.
In addition, the judge pointed out that if ministers had an obligation to involve the claimants in the process of negotiating an agreement, that obligation was in no way equivalent to the constitutional duty to consult Aboriginal peoples.
According to Mr. David Schulze, the question of consultation with non-Indigenous peoples is limited in scope, as consultation with non-Indigenous fishermen would likely not have changed the content of the agreement between the federal government and the Mi’kmaq community.
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