New Brunswick Burnt Church First Nation campaign to defend their fishing rights, 1999-2002

The Mi’Kmaq people of New Brunswick have always fished in the Miramichi Bay and River. On 17 September 1999, the Supreme Court of Canada upheld the native fishing rights of Donald Marshall, who had been charged with fishing out of season, fishing without a license, and fishing with an illegal net. The "Marshall Decision" agreed on by the Supreme Court stated that its decision would uphold the honour and integrity of the Crown in its dealings with the Mi’Kmaq people to secure their peace and friendship. This decision caused chaos in New Brunswick.

Burnt Church was filled with tension between native and non-native fisherman. On 3 October 1999, 150 fishing boats headed out into Miramichi Bay to protest against native fishers who were trapping lobster out of season. During this demonstration, non-native objectors to the Marshall Decision began shouting when the boats returned, destroying hundreds of native traps, fishing equipment, and fish plants. 

In the days following 3 October 1999, the Department of Fisheries and Oceans (DFO) minister Herb Dhaliwal met with native leaders in order to find a way to ease the tension. Thirty-four First Nations bands agreed to respect new fishing rules. Burnt Church First Nations did not agree. The community determined they were not willing to risk their Treaty Rights, and decided to develop their own fisheries policy and management plan. Their objective was to protect Treaty rights, the fishery, the ecosystem and to maximize benefits for all members of the community. The people of Burnt Church agreed to this plan, and began to regulate their fishery through permits and treaty tags. 

On 17 November 1999, the Supreme Court of Canada released the Marshall 2 decision. The Marshall 2 was intended to clarify points made by the original Marshall Decision. The most important piece of information provided was that the government still had the power to regulate native fishing for the purpose of conservation. Following this, the DFO limited the number of traps and began to confiscate traps. The DFO did not recognize the treaty tags and threatened to seize boats and equipment that did not have DFO issued tags. 

During late July and early August 2000, native boats were seized, and 18 people were arrested on charges of catching too many lobsters. The Mi’Kmaq, as part of their own policy, said they did not need the government to make sure the lobster population is conserved. Other Canadian bands, such as groups from British Columbia and Ontario, traveled to Burnt Church to support the Mi’Kmaq. The people of Burnt Church continued to fish. 

In late August, the native fisherman protested by setting up a blockage on Highway 11, a major commercial route in the province. Fisheries officers continued to seize traps and make arrests. Dhaliwal called the native leaders to renegotiate. 

In 2001, as a way to avoid the violence of the previous fishing season, the federal government issued the Burnt Church Mi’Kmaq a temporary license when the season opened on 20 August 2001. This allowed native fishing to go ahead while a long term agreement was being negotiated. This license restricted the fisherman from selling their catch, and would only last a week. The day before the license expired, 26 August 2001, the Mi’Kmaq blocked all entrances to their reserve and escorted media out of the area, as they continued to set lobster traps in Miramichi Bay. This resulted in Ottawa issuing a new license to the Mi’Kmaq, allowing them to fish until 20 October 2001. 

In April 2002, a federal committee released a report aimed at preventing more violence between native and non-native fisherman. This report suggested all charges made during the dispute be dropped, Ottawa should compensate fisherman for their damaged boats and fishing equipment and native bands should be issued licenses to distribute to native fisherman. 

On 1 August 2002, an agreement was reached: everyone had to have a fishing license and could only fish during the fishing season, Aboriginal or not. 

The United Nations Human Rights Committee ruled that the extinguishment of aboriginal and treaty rights is a violation of fundamental human rights. 

A statement from Hereditary Chief of the Mi’Kmaq Grand Council on 27 August 2002 declared, “history will show this present injustice and it will be said that the Mi’Kmaq people signed under great duress. Peace cannot arise out of injustice, and no certainty can result from the imposing of an unequal agreement. The Crown, and Canadians, will get no lasting benefit from these ‘deals’ involving the annihilation of our rights, except the despair and resentment of generations of our children and people.”