International Indigenous Policy Journal (Oct 2011)
Conservation Controversy: Sparrow, Marshall, and the Mi’kmaq of Esgenoôpetitj
Abstract
This paper explores the interplay between the Sparrow and Marshall decisions of the Supreme Court of Canada, and the sovereigntist and traditionalist convictions of the Mi’kmaq of the Esgenoôpetitj/BurntChurch First Nation, as expressed in the conservationist language of the Draft for the Esgenoopotitj First Nations (EFN) Fishery Act (Fisheries Policy). With the Supreme Court of Canada’s decision in Sparrow, conservation became an important justification available to the Canadian government to support its regulatory infringement on aboriginal and treaty rights. Ten years later, in Marshall, the Court recognized the treaty rights of the Mi’kmaq to a limited commercial fishery. The EFN Fishery Act, written to govern thecontroversial post-Marshall fishery in Esgenoôpetitj (also known as the Burnt Church First Nation) demonstrates that for the Mi’kmaq, scientific management, traditional knowledge, sovereignty and spirituality are understood in a holistic philosophy. The focus placed on conservation by the courts, and the managementfocusedapproach taken by the government at Esgenoôpetitj have led to government policy which treats conservation simply as a resource access and management problem. Conservation, which the Court deems“uncontroversial” in Sparrow, is a politically loaded ideal in post-Marshall Burnt Church.
