Private Parties Can’t Take First Nations to Court to Force Determinations of Aboriginal & Treaty Rights

There is potentially a troubling recent trend of private parties attempting to use the courts to force determinations of Indigenous rights that neither an Indigenous people nor the Crown wishes to be determined by the Court. In Unified Fisheries Conservation Alliance v. Glasgow, 2026 NSSC 221, a "not-for-profit alliance of commerical fishery stakeholders ... including fishers who fish lobster in and around St. Mary's Bay" went after the Chief and member of the Sipekne'katik Mi'kmaq First Nation for a Superior Court declaration that the Fisheries Act does not infringe Indigenous Treaty rights or does so in a justified way.

The goal of the plaintiffs was "to put Sipekne'katik to the task of proving that it does have Aboriginal treaty rights to commercially fish for lobster in St. Mary's Bay." Now you wouldn't be alone in wondering: didn't the Supreme Court of Canada sort that out in R. v. Marshall, [1999] 3 SCR 456?

I was there as counsel at the Supreme Court of Canada on 5 November 1998 when the case was argued. I've been out on St. Mary's Bay with lobster fishermen. I even took over as Atlantic Canada's chief fisheries and oceans prosecutor for a while post-Marshall. And yet 27 years later, we have non-Indigenous fishers attempting to take Indigenous fishers to court to prove their rights, where the Crown has largely stopped seeking to pick a fight with the Indigenous fishers.

The reality is that Indigenous fishers had under 1% of fishing quota in Atlantic Canada, as compared to about 1/3 of the quota on the West Coast. There have been modest efforts by the Crown to ever so slowly address that inequity on the East Coast post-Marshall. But still 27 years later, we have a privately led Superior Court demand that the Mi'kmaq yet again prove their rights, even though it remains the responsibility of the Crown to fully accommodate the rights the Mi'kmaq already proved, where the Crown has moved so slowly in part because of the power of non-Indigenous fishing interests.

The Court styled the claim as: "whether a non-Aboriginal but 'interested' person, can force a First Nation of Canada to participate as a defendant in litigation with it and Canada in an attempt to declare that certain legislation does not violate that First Nation's treaty rights." The Court found the plaintiff "lacks standing, the Court lacks jurisdiction ... it would amount to an abuse of the processes of the Court to allow the Claim to go forward ... the pleadings .... do not set out a valid claim at law because declaratory relief only is sought and that declaratory relief is to uphold legislation."

Although Canada sided with the First Nation in this case, the Crowns in Cowichan Tribes v. Canada (Attorney General), 2026 BCSC 1213 took a more troubling position by both consenting to private businesses seeking to reopen a 513 day Aboriginal Title trial so that they could become parties and file evidence. The trial judge "dismissed as an abuse of process for relitigation."