Executive Summary: Key Legal and Evidentiary Issues

• Constitutionality of federal fisheries legislation and its alleged infringement of Sipekne’katik’s treaty rights to fish and sell lobster for a moderate livelihood.

• Definition and scope of “moderate livelihood” under the Mi’kmaq Peace and Friendship Treaties of 1760–61 and section 35(1) of the Constitution Act, 1982.

• Whether federal laws and regulations unjustifiably infringe treaty rights and meet the justification test established in R. v. Badger.

• Adequacy of Crown consultation and accommodation of Sipekne’katik’s treaty rights.

• Entitlement of the Unified Fisheries Conservation Alliance, as Intervenor, to costs following discontinuance of the action.

• Determination of a fair and reasonable costs award to the Intervenor in the context of Indigenous constitutional litigation.

Background and facts of the case

The Sipekne’katik First Nation, represented by Chief Michelle Glasgow, brought a claim challenging the legality of federal and provincial legislation that allegedly infringed their treaty rights to fish and sell lobster for a moderate livelihood. These rights are memorialized in the Mi’kmaq Peace and Friendship Treaties of 1760–61 and are constitutionally protected under section 35(1) of the Constitution Act, 1982. The legal background referenced the Supreme Court of Canada’s decisions in R. v. Marshall, [1999] 3 S.C.R. 456 (“Marshall 1”) and [1999] 3 S.C.R. 533 (“Marshall 2”), which affirmed the Mi’kmaq’s constitutionally protected treaty rights to fish for a moderate livelihood, but limited those rights to securing “necessaries” and not the accumulation of wealth.

In 2020, Sipekne’katik initiated its own independent lobster fishery as part of a “Rights Implementation and Lobster Fishery Management Plan.” The Plaintiffs claimed that the Fisheries Act (Canada), Fishery (General) Regulations, and Atlantic Fishery Regulations criminalized their treaty-based fishing and trading activities. Sipekne’katik later discontinued its claims involving the provincial (Nova Scotia) statutes and regulations but continued to assert that the federal laws were unconstitutional, unjustifiably infringing treaty rights and failing the justification test established in R. v. Badger, [1996] 1 S.C.R. 77. The Plaintiffs sought declarations that the impugned provisions are of no force or effect as they apply to Sipekne’katik’s treaty fishery, along with costs and further relief.

The federal Crown defended the action, and the Unified Fisheries Conservation Alliance (“UFCA”) was granted Intervenor status. UFCA agreed that the treaty right exists and is constitutionally protected but argued that the right is limited by species and geography, and that any infringement is justified by broader regulatory, conservation, and fairness considerations.

Procedural history and litigation conduct

The dispute was initially brought as an application but was converted to an action due to its complexity. The matter proceeded through disclosure, with the Crown disclosing thousands of documents. On the eve of discovery examinations, the action stalled as the Plaintiff and Defendant Crown engaged in settlement negotiations. Two consecutive six-month adjournments were granted, but eventually, the Plaintiff discontinued its claim before discovery examinations could proceed.

The Defendant federal Crown did not seek costs associated with the discontinuance. However, the Intervenor, UFCA, sought substantial costs of about $400,000.00, or approximately 66% of its legal fees incurred. Both the federal Crown and the Plaintiff opposed costs to the Intervenor, with the main dispute existing between UFCA and Sipekne’katik. The Plaintiffs argued that no costs should be awarded to UFCA, or alternatively, that any award should be nominal, capped at $5,000.00.

Discussion of policy terms and clauses at issue

The case focused on the interpretation and application of the Mi’kmaq Peace and Friendship Treaties of 1760–61, as recognized by section 35(1) of the Constitution Act, 1982. The Supreme Court of Canada’s Marshall decisions clarified that the treaty right is limited to securing “necessaries,” construed as a “moderate livelihood,” and does not extend to the accumulation of wealth. The federal Fisheries Act and related regulations were challenged as unjustifiably infringing these treaty rights, with the Plaintiffs arguing that the laws failed to accommodate their rights and did not meet the justification test set out in R. v. Badger.

Ruling and overall outcome

The action was discontinued by the Plaintiff, Sipekne’katik First Nation, before a final decision on the merits. The Court did not make any declarations regarding the constitutionality of the federal fisheries legislation or the precise scope of treaty rights. However, the Court addressed the issue of costs, awarding the Intervenor, Unified Fisheries Conservation Alliance, $15,000.00, payable forthwith. No other monetary award, damages, or costs were ordered in favor of any other party. The successful party with respect to costs was the Intervenor, UFCA, and the total amount ordered in its favor was $15,000.00. No determination was made on the substantive legal claims due to the discontinuance.