Settler colonial violence and the Maritime fisheries

Angela Tozer

Canadian settler colonialism set the stage for the current attacks on Mi’kmaw fishers from Sipekne’katik First Nation. From the end of summer and into the fall of 2020, settler fishers argued that the Department of Fisheries and Oceans Canada (DFO) needed to circumscribe Mi’kmaw fishers in favour of commercial Nova Scotia fisheries. The DFO uses a system of licensing to manage commercial fisheries. At the same time, settler fishers waged a campaign of terror against Mi’kmaw fishers. They even managed to have an unspoken embargo placed on Mi’kmaq caught lobster.[1] Asking the Canadian government to regulate Mi’kmaw fishers and fisheries assumes that the Canadian government has the legal authority to do so. It is unclear what historical evidence this assumption is based on.

Shiri Pasternak argues that resource disputes in the Canadian settler state are “over the authority to have authority. The conflict concerns jurisdiction.” She aptly points out the gap between the settler state’s claim as the only sovereign over both Indigenous peoples and their territories, “and its legal authority to exercise territorial jurisdiction.” Jurisdiction, she writes “is the apparatus through which sovereignty is rendered meaningful.”[2] This captures the heart of the fisheries dispute: the settler state claims sovereignty over the Mi’kmaw territory, Mi’kma’ki, without the legal precedent to do so. Arguably, the licensing system was one legal mechanism that extended settler government jurisdiction over natural resources, which, in turn, reified settler state sovereignty over that space.

Audra Simpson’s concept of “embedded sovereignties” is useful in helping Canadians, such as myself, understand the reality of the multiplicity of sovereign Indigenous nations within Canada’s claimed geographical borders.[3] Specific historical processes enabled the Canadian settler state to assert its domain. There are many reasons why settlers, settler fishers, provincial governments, and the federal government came to understand the Canadain settler state as the exclusive sovereign over Mi’kma’ki.

Printed Proclamation of the 1752 Treaty, Peace and Friendship Treaties Nova Scotia Archives RG 1, Vol. 430, No. 2.

Changes in European power dynamics in the eighteenth century, and the consolidation of the Canadian settler state in the nineteenth century, altered the social, political, and economic landscape of Mi’kma’ki. In the eighteenth century, Britain fought with France and the United States. These wars that ended in treaties between these nations cemented Britain’s position as the only white nation with access to the region that would become the Canadian Maritime provinces.[4] The shifts between white nations’ sovereignty happened after the 1713 Treaty of Utrecht where France relinquished its colonial claim on a large part of Mi’kma’ki to Britain. The 1748 Treaty of Aix-La-Chapelle established a stronger British military presence, particularly in Kjipuktuk (Halifax). It happened twice again with the 1763, and then 1783 Treaties of Paris. Through these treaties Britain claimed sovereignty over the territory that would form the early Canadian settler state. It did so through treaty agreements, not with Indigenous nations, but with France and the United States. At the same time, the British government entered into a nation to nation agreement with the Mi’kmaw nation with the Peace and Friendship Treaties. The wording of the 1752 treaty, in particular, highlights that the Mi’kmaw nation never ceded nor surrendered territory, and that the British promised to uphold Mi’kmaw hunting and fishing rights in perpetuity.[5] Arguably, each war that Britain won or lost with other white nations contributed to a settler understanding of the erosion of Mi’kmaw sovereignty, despite the existence of the Peace and Friendship Treaties.

Britain claimed sovereignty to Mi’kma’ki through treaty negotiations with other white nations, and Canada inherited this claim. Even if one is inclined to forget about this historical fact, contemporary legal scholars argue that the Crown’s current regulation of Mi’kmaw fisheries “would be declared unconstitutional” by its own laws.[6] On 17 September 1999 the Supreme Court of Canada ruled that Donald Marshall Jr. did not illegally fish as fishing was a part of his treaty rights. On 17 November 1999, in “Marshall II,” the Supreme Court ruled that treaty rights were not unlimited and that Canada had the jurisdiction to regulate fisheries based on conservation, or other major concerns that could arise. The settler government partially legitimized its regulation of Indigenous territory with the rhetoric of conservation.

Ideas about conservation were born in an extractivist empire. For example, the Forest Conversancy Department originated as an “experimental” project in Madras (Chennai) in 1848 out of a set of anxieties about teak shortages in Indian shipyards, and the depletion of forests from railway construction.[7] Conservation did not aim to preserve original forests. It applied the rules of “scientific management” to regulate living resources with the goal of maintaining a steady supply on the market.[8] Conservation allowed for maximum product availability to the market. When the commodified living resource died, whether a tree, or a lobster, conservation became the method to regulate that death. Hence, conservation was not a concern for the life of the living being, but its death.

The mid-nineteenth century witnessed a marked shift in colonial Indigenous policy in the wake of the Report on the Affairs of the Indians in Canada. This report systematically surveyed Indigenous nations and communities in Upper and Lower Canada with the intent to manage Indigenous peoples and their territories. It laid the groundwork for genocidal state policies of assimilation and eradication of Indigenous lives such as residential schooling, and the 1876 Indian Act.[9] The report is colloquially known as the Bagot Report named after Charles Bagot, the then Governor General of the Province of Canada. Importantly, the Bagot Report theorized methods to extend colonial jurisdiction into settler government-recognized unceded and unsurrendered Indigenous territories via a system of state licensing of forest resources.

H.V Nelles points out that the “problem of the forests was not that the public drew too little revenue from their exploitation, but rather too much.”[10] The Bagot Report explicitly wanted policies such as “measures to be taken to foster a lawful trade, by empowering the Deputies of the Crown Land Department to issue licenses.” These licenses would ensure that “some pretended license from a Chief, or other individual Indian having no authority whatever to confer it” could not issue timber licenses, nor sell timber from “Indian lands.” The money collected for the licenses would go to the “Funds of the Indians,” which the Bagot Report alleged the colonial government would use for the management of “Indian Affairs.”[11]

The Bagot Report carefully crafted an argument to extend the jurisdiction of the colonial government into Indigenous territories. It recommended that “with respect to the illegal cutting of Timber” the “Agents of the Commissioner of Crown Lands… be empowered to issue Licenses for the cutting of Timber on Indian Lands, in the same manner as on Crown Lands.”[12] In this sleight of hand, the Bagot Report collapsed “Indian Lands,” or unceded and unsurrendered territory, into the same legal category as Crown lands. The system of state-centred licensing allowed for an extension of colonial authority into government-recognized unceded and unsurrendered Indigenous territories. In this way, Indigenous peoples’ regulation of their own resources became “unlawful.”[13]

Settler governments’ management of resources manifested in the Maritime fisheries as well. A few years after the Bagot Report, the 1854 Treaty of Reciprocity (abrogated in 1866) became one of the first “free trade” agreements between the British North America colonies and the United States. The treaty attempted to solve the jurisdiction problems that arose from the 1818 “Convention Respecting Fisheries” where American fishers pushed the boundary line that demarcated how far British sovereignty extended into sea. According to European laws, the sovereign’s (empire, nation, state, monarch, etc) border extended three nautical miles, or one cannon shot, into the sea. The Treaty of Reciprocity gave rights to American fishers to British-claimed sea space, and took away the three nautical mile restriction on fishing. The treaty did not mention Mi’kmaw fishing rights, and it did not uphold the terms of the Peace and Friendship Treaties. The 1752 Treaty, for example, states that it applied to “their [Mi’kmaq] Heirs, and the Heirs of their Heirs forever,” which meant that signatories understood it to be valid in perpetuity.[14]

The Maritime colonial governments and the Province of Canada’s government wanted free trade with the United States primarily as a way to have direct access to capital investment.[15] The 1820s saw a marked shift in the imperial administration of the British North American colonies. A systematic program of both British settlement and massive development projects began to be rolled out. For example, the disastrously expensive canal development in what became Ontario nearly bankrupted the colonial government at the time.[16] These development projects were the origin of Canada’s current public debt that began as a way to funnel British capital into what would become Canada.

The Maritime colonies had access to a potentially massive fisheries industry — provided that they could find the capital to develop it. The Treaty of Reciprocity served the dual purpose of allowing Americans use of the canal system (to hopefully generate revenue for the canals), and to open up the fisheries for commercial development. The treaty gave Americans rights “in common with the subjects of her Britannic Majesty” to fish, on the condition that they did not interfere with British subject fishers, and private property. It stated that “the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen.”[17]

North shore of Epekwitk/ PEI, looking west towards Malpeque Bay. In 1851 Bannerman estimated some 1500 American fishers from 250 schooners landed there. Photo by author, June 2020*

Alexander Bannerman, the Governor of Prince Edward Island, lobbied the British government to open up the fisheries to the United States. Bannerman had a vision of capital investment and a fisheries industry that would replace the Island’s dwindling shipbuilding industry. Brenna Bhandar understands settler colonialism as a particular type of capitalist formation.[18] Grasping settler colonialism as one configuration of capitalism illuminates many of the ongoing resource and development disputes, as well as Canada’s Indigenous policy. Bannerman’s desire for a commercialized fishery as a way to access capital highlights the structuring of Canada’s relationships with corporations today. Clearwater, for example, can fish in Lobster Fishing Area (LFA) 41, and buy inshore fish from smaller fishers. (LFA) 41, according to the DFO, has no season.[19] Recently it was announced that FNC Holdings Limited Partnership who represent several Mi’kmaq First Nations along with Premium Brands Holdings Corporation, on the 9 November, 2020, acquired “all of the issued and outstanding common shares of Clearwater.”[20] However, it is important to note that this is a separate issue from Mi’kmaw moderate livelihood fisheries, and the rights guaranteed by the Peace and Friendship Treaties. FNC Holdings Limited Partnership represents a specific coalition of Mi’kmaw First Nations. Only time will tell what this means for Mi’kmaw fishing rights, the role of settler state licensing in fisheries, how capital is used in living resource extraction, and who is granted access to which water spaces in the wake of this monumental transaction.

Historically, the little to no regulation of corporations who injected capital into the Maritime economy came at the expense of both settler and Mi’kmaw fishers. This echoes Bannerman’s desire for the development of an unfettered Maritimes fishery. In the mid-nineteenth century, PEI fishers threatened that “they would take the law into their own hands” if the fisheries jurisdiction with Americans infringing on their water space was not resolved. Instead of deciding in favour of the Islander fishers, the Island government, and the other Maritime governments, negotiated free trade to open the fisheries to Americans to promote capital investment.[21]

The British and then the Canadian Crown attempted to appropriate Mi’kma’ki. Settler government jurisdiction made sovereignty claims real through the tangible process of licensing buttressed by the mid- to late-nineteenth-century ideology of conservation. The British used treaties between themselves, France, and the United States to circumvent their own laws that were supposed to uphold Mi’kmaw sovereignty, rights to territory, and undisturbed access to resources. The very real process of territorial appropriation reverberated through time, and manifests in the settler colonial violence enacted against Mi’kmaw fishers from Sipekne’katik First Nation today, where it is assumed that Mi’kmaw fishers are legally under the jurisdiction of the occupying settler state.

 

Angela Tozer is Assistant Professor in the Department of History at the University of New Brunswick. Her research explores the history of capitalism in Canada and its relationship to settler colonialism. She focuses on Epekwitk (Prince Edward Island) and brings Mi’kmaw oral histories into her history of the Island. You can find her on Twitter @AgentLaZero.

 


[1] Jon Tattrie, “Commercial fishermen rally to press DFO on Mi’kmaw lobster fishery,” CBC, accessed Nov 1, 2020, https://www.cbc.ca/news/canada/nova-scotia/rally-for-commercial-fishermen-calls-for-1-year-pause-on-mi-kmaw-lobster-fishery-1.5768342

[2] Shiri Pasternak, Grounded Authority: The Algonquins of Barriere Lake Against the State (Minneapolis, MN: University of Minnesota Press, 2017), 2-3.

[3] Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014), 12. It needs to be noted that “sovereignty” is a contested concept within the literature.

[4] I use the term “white nations” here, not to imply that Black, Indigenous, or racialized peoples did not live in these places, but that access to power structures was usually restricted to individuals determined to be “white.” In the late eighteenth and early nineteenth century “white” people were generally considered to be of northern European descent.

[5] Peace and Friendship Treaties. Nova Scotia Archives. RG 1, Vol. 430, No. 2.

[6] Naiomi Metallic, Constance MacIntosh, “Court Decisions Over the Past Two Decades Suggest the Crown’s Latest Attempts to Regulate the Mi’kmaq Fisheries Would be Declared Unconstitutional,” Policy Options, accessed Nov, 2020, https://policyoptions.irpp.org/magazines/november-2020/canadas-actions-around-the-mikmaq-fisheries-rest-on-shaky-legal-ground/?fbclid=IwAR0Nqq1eOM1bn4ZeUj0-i9qD15F6YcrnZ6FTHcJ_8cFY5ktXXiZAsUlb4do

[7] House of Commons. “Report from the Select Committee on Forestry Together with the Proceedings of the Committee, Minutes of Evidence, and Appendix.” 24th July, 1885. (London: Henry Hansard & Son, 1885), 13.

[8] William Beinart, and Lotte Hughes, Environment and Empire (Oxford: Oxford University Press, 2007), 111.

[9] Erica Neeganagwedgin, “‘They Can’t Take our Ancestors out of us’: A Brief Historical Account of Canada’s Residential School System, Incarceration, Institutionalized Policies and Legislations Against Indigenous Peoples,” Canadian Issues (Spring 2014): 32.

[10] H. V. Nelles, Politics of Development: Forests, Mines, and Hydro-Electric Power in Ontario, 1849-1841 (Canada: McGill-Queen’s Press, 2005): 183.

[11] Legislative Assembly of the Province of Canada, “Report on the Affairs of the Indians in Canada.” By D.Daly, “Appendix T,” in Appendix to the Sixth volume of the Journals of the Legislative Assembly of the Province of Canada, from the 2nd day of June to the 28th day of July, 1847, and in the Tenth and Eleventh Years of the Reign of Our Sovereign Lady Queen Victoria, Being the Third Session of the Second Provincial Parliament of Canada, session 1847 (Montréal: R. Campbell, 1847).

[12] Ibid.

[13] For an excellent discussion about the idea of Indigenous criminality and settler state sovereignty see Heidi Kiiwetinepinesiik Stark, “Criminal Empire: The Making of the Savage in a Lawless Land,” Theory & Event 19, no. 4 (2016).

[14] Peace and Friendship Treaties. Nova Scotia Archives. RG 1, Vol. 430, No. 2.

[15] Journals of the Prince Edward Island Legislative Assembly, Appendix 13. No. 50. 15th Nov 1851.

[16] See Michael J Piva, The Borrowing Process: Public Finance in the Province of Canada, 1840-1867 (Ottawa: University of Ottawa Press, 1992) and Madeline Whetung, “(En)Gendering Shoreline Law: Nishnaabeg Relational Politics along the Trent Severn Waterway” Global Environmental Politics 19, no. 3 (2019): 16–32.

[17] Treaty between Her Majesty and the United States of America Relative to Fisheries, Commerce, and Navigation. Signed in Washington, 5th June, 1854 (London: Harrison and Sons, 1854), 1-3.

[18] Brenna Bhandar, Colonial Lives of Property: Land, and Racial Regimes of Ownership (Durham: Duke University Press, 2018), 81.

[19] Fisheries and Oceans Canada, accessed 1st Nov, 2020, https://www.dfo-mpo.gc.ca/fisheries-peches/decisions/fm-2020-gp/atl-09-eng.html

[20] “Clearwater Seafoods Incorporated to be Acquired by Premium Brands Holdings Corporation and a Mi’kmaq First Nations,” Business Insider, accessed 9th Nov, 2020, BCoalitionhttps://markets.businessinsider.com/news/stocks/clearwater-seafoods-incorporated-to-be-acquired-by-premium-brands-holdings-corporation-and-a-mi-kmaq-first-nations-coalition-1029783480

[21] Journals of the House of Assembly and Legislative Council. Right Hon Lord Grey, from Lt Gov Bannerman, 1851.

* Source for Bannerman estimate in photo caption: Journal of the Legislative Council of Prince Edward Island., Bannerman Lieut. Governor to the Right Honourable Earl Grey. Government House P.E.Island October 13, 1851, appendix 13, Fifth Session of the Eighteenth General Assembly (Charlottetown: John Ings, “Islander Office,” 1853).

Featured image:  Printed Proclamation of the 1752 Treaty, Peace and Friendship Treaties Nova Scotia Archives RG 1, Vol. 430, No. 2.

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