ANKUKAMKUA’TU, ‘DOING TREATY’: AN ALTERNATIVE FISHERIES GOVERNANCE MODEL FOR MI’KMAQ ABORIGINAL AND TREATY RIGHTS TO FISH IN NOVA SCOTIA

Abstract

Despite the recognition of the Aboriginal and treaty right to fish, little movement toward enhancing governance occurred that respected the authority of both the Mi’kmaq in Nova Scotia and the Department of Fisheries and Oceans as a federal regulator of fisheries in Canada. Using a Two-Eyed Seeing research framework underpinned by Constructivist Grounded Theory, three perspectives of Mi’kmaq, Mixed, and Federal/Provincial were derived from interviews. A case study approach underpinned by Interactive Governance Theory and a social justice lens was used to assess the governability of the Aboriginal right to fish for salmon in Nova Scotia and the treaty right to fish for lobster for a moderate livelihood. The outcome of the research indicated that challenges faced by three perspectives were conflicting relations, disputing the legitimacy of the governing system, marginalizing Mi’kmaw fishers, identifying governance gaps, fearing loss of Mi’kmaw identity, and operating challenges and gaps. Based on the governability assessments, all three modes of governance – hierarchical, self-, and co-governing - were necessary to improve effectiveness and legitimacy of current fisheries governance. Using the categories of opportunities, forging a treaty relationship, founding governance on the Mi’kmaw knowledge system, using current processes, addressing governance gaps, and enhancing operations, and the results of the governability assessment, an alternative fisheries governance model for Mi’kmaq Aboriginal and treaty rights was developed. To improve the governance of Mi’kmaq Aboriginal and treaty fisheries in Nova Scotia, the model calls for 1) establishing a Mi’kmaw district-based self-governing fisher association with appropriate disciplinary tribunal with authority to act independent of Mi’kmaq First Nations; 2) establishing co-governing mode between the self-governing fisher association and DFO with responsibility delegated to the co-governing unit; 3) enhancing interactions between the Mi’kmaw fishers, the state, and industry using Two-Eyed Seeing forums; and 4) establishing relevant policies for Indigenous fisheries that take into consideration the treaty right to fish for a moderate livelihood. Contributions from the research suggest that IGT is a useful theory to examine governability, however, alterations to the predictive component of the features of the system-to-be-governed are needed to address legal pluralism arising from s.35 and s.52 of the Constitution Act.