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August 29, 2020, dawned clear over southwest Nova Scotia. In the cabin of his lobster boat, the Mystique Lady, Matthew Cope was chatting with the other members of his crew as they chugged out from shore. The vessel was bound for the area where Cope, a member of Millbrook First Nation, had set his 150 lobster traps the day before. Cope had prepared those traps with plastic-encased copies of his status card, bearing his name, photo, and registry number. On the back of each of card, Cope included the statement “These traps are being fished under section 4 of the 1752 peace and friendship treaty.” He was prepared for some trouble.

For years, Indigenous fishermen had been operating in the area, asserting their constitutional right to fish and sell lobster for a moderate livelihood—efforts that had received pushback from non-Indigenous fishermen and the Canadian government.

In the waning days of summer 2020, the situation had grown even more strained, and on the Mystique Lady, the atmosphere was tense. On the radar screen, Cope could see a Canadian Coast Guard vessel in the same area as his traps. Drawing closer, he found Fisheries and Oceans Canada (DFO) officers hauling the traps onto their boat. Cope tried the coast guard channel on CB radio, then hollered at the officers to call him (he’d put his phone number on the buoys). Finally, Cope pulled close enough to the boat to talk, and gave the officer what he calls “the whole spiel”—he said DFO must be aware that they were violating his constitutional rights, that there was a duty to uphold the promises of the treaties, that what they were doing was wrong.

“[The officer] said ‘Yeah well, we’re still going to take them.’”

Altogether, officers took 90 of Cope’s traps; back on land, Cope called the DFO office, demanding that the traps be returned. A week later, DFO invited him for an interview. In a cramped room, bare except for a container of cleaning wipes on the table, Cope sat down for an intermittently tense and congenial conversation, during which Cope told two officers he wasn’t hiding anything. “I don’t even know why my traps are still being held under investigation when I told you guys clearly up front exactly what I’m doing,” he said, according to a video of the interview.

One officer told Cope the court would have to decide whether what Cope had been doing was legally protected.

For decades, Canada’s most lucrative fisheries—including lobster and baby eel, or elver—have been the subject of a fraught national conversation over Indigenous rights recognition. In 1999, Canada’s Supreme Court confirmed that the Mi’kmaq, Wolastoqiyik, and Peskotomuhkati Nations of what is now the Gaspé and Maritime regions had the right to fish for a “moderate livelihood,” based on 18th-century treaties, vindicating communities who’d been fighting for fishing rights for decades.

But the court didn’t define a “moderate livelihood”—and the government has not implemented fisheries based on Indigenous rights since then. In that void, uncertainty has proliferated on the water, in the courts, and among fishermen who thought they were protected by treaties settled centuries ago.

In a statement, a DFO spokesperson said that the Supreme Court did not clearly define moderate livelihood, stating only that the right did not extend to the open-ended accumulation of wealth. “Each Treaty Nation has a unique vision for the implementation of their right to fish in pursuit of a moderate livelihood, and many Treaty Nations assert that defining this concept is the responsibility of each community. DFO works to further implement the Treaty right through the negotiation of agreements, programmatic initiatives, or other arrangements using tools that reflect Treaty Nations’ interests and visions.”

The statement also noted that in the last 21 years, DFO has provided $630 million to participating Indigenous communities to help develop fishing enterprises for multiple species, and that the Indigenous share of the $4.2 billion Atlantic fishery was 6.4 per cent as of 2021, up from 0.2 percent in 1999.

Cope, 38, grew up in the wake of the 1999 Marshall decision, as it is known, and as an adult has grown impatient waiting for the government to enact meaningful change in Indigenous fisheries.

In his interview with DFO in September 2020, Cope levied a challenge to the agency: either return his traps or charge him so that he could properly fight his case in court. The following winter, he received an answer: DFO charged Cope with fishing for lobster in a closed season, having lobster traps aboard his vessel during a closed commercial season, fishing for lobster without authorization, and not having the proper lobster tags. “I thought for sure that was going to make the courts answer some questions [about the right to a moderate livelihood],” Cope says.

Cope is one of a handful of Mi’kmaw fishermen challenging the constitutionality of Canada’s restrictions on Indigenous fishing. Dozens of Indigenous fishermen face charges in Canada’s Atlantic provinces—more than 50 in Nova Scotia alone—because they sought to exercise a right that the Marshall decision was supposed to have secured 25 years ago.

For some of these fishermen, the legal system is a last resort for resolving the questions that have plagued implementation of moderate-livelihood fisheries for decades. But the pursuit of these cases is stymied by costs and delays, leaving people like Cope torn between wanting to fight for their rights and feeling frustrated and fatigued by having to go through the process.

There’s a deeper tension at play too; some experts question whether funneling cases into the inherently adversarial—and colonial—legal system is even wise, or if it undermines the opportunity to achieve more peaceful coexistence.

Unquestionably, in the vacuum left by the lack of a political answer to the question of Indigenous fishing rights—which, for many nations, means the authority to manage their own fisheries—the issue will be sucked into the courts time and again. “It’s not a case where the courts are eagerly wanting to [get involved],” says Wayne MacKay, professor emeritus at Dalhousie University’s Schulich School of Law in Halifax. “They’re doing it as part of their duty, because the political levels of government have not solved it.”

These cases are fundamentally about promises made in treaties that were signed when Canada was not a nation but a British colony.

“[Canada] inherited these promises,” says Naiomi Metallic, professor at Dalhousie’s Schulich School of Law and member of Listuguj Mi’gmaq First Nation. “But you also had those promises reaffirmed by the Supreme Court in 1999. [The government has] an obligation to make good on their treaty obligations; they’re not doing that, and it’s forcing people into the criminal justice system.”

Cope and others didn’t go looking for a legal fight—they just wanted to fish. But in the troubled waters of fishing rights, they’re pushing back and asking, How will Canada honor those promises now?

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At Cope’s Millbrook First Nation home, about an hour from Halifax, his dog, a gentle cane corso named Cash, keeps watch. Cope disappears into the home office that abuts his kitchen and comes back with a document—a 50-page outline of his family tree, going back hundreds of years.

The tree’s most important detail is not its age but the name typed near the beginning: Jean Baptiste Cope, Chief of Shubenacadie, who on November 22, 1752, signed a treaty with the British.

Jean Baptiste Cope was born in 1698 to Paul and Cecile Kopit, and grew up speaking Mi’kmaw and French (Cope is an anglicized version of kopit, meaning beaver in Mi’kmaw). By his late 20s, he was Chief of the Shubenacadie District—an area covering roughly the middle third of the province—and soon became an influential figure in the wars fought between the British, the French, and the sovereign Indigenous nations who’d lived for millennia in what are now Canada’s Maritime provinces. (The French ultimately lost these wars, leading to the British domination of Atlantic Canada.)

The conflicts with Indigenous nations were brought to an end by a series of military alliance treaties with the British, called the Peace and Friendship Treaties, in the period from 1726 to 1779. One of these is the 1752 treaty signed in Halifax by Jean Baptiste Cope and Nova Scotia Governor Peregrine Hopson.

“He was smart enough and strategic enough to understand what the future was going to bring,” says Cope of his relative. “He knew that fishing trade was going to be a big part of the future, so he put it in the treaty.”

Those documents (and other treaties signed both before this and in later years with Indigenous nations across the country) underpin Canada as it exists today. “The constitution of Canada is built on the treaties themselves,” says Liam Smith, a lawyer in Nova Scotia who works primarily with Indigenous clients, including on constitutional challenges. But unlike treaties signed elsewhere in Canada, the Peace and Friendship Treaties did not involve any surrender of land or resources. Instead, they forged military and trade alliances, and guaranteed the right of Mi’kmaw, Wolastoqiyik, and Peskotomuhkati people to hunt, fish, farm, and earn a reasonable living without British interference. In the language of the 1752 treaty, it was a guarantee of “free liberty” of hunting and fishing, and of sale.

Two hundred years later, the 1999 Marshall decision cited these treaty rights. Donald Marshall Jr., a Mi’kmaw man from Membertou First Nation in Nova Scotia, was acquitted of catching and selling CAN $787 worth of adult eels without a license; his defense hinged on one of the Peace and Friendship treaties. In its decision, the court concluded that Marshall had a treaty right to a “moderate livelihood.” Not long after the decision, a commercial fishermen’s group applied for a rehearing of the case, and in November 1999, the court issued an unusual clarification called Marshall II. The clarification stated that the right to a moderate livelihood was not absolute and could be limited for conservation purposes or other “substantial public objectives.”

Cope’s appreciation of the treaties was kindled in the aftermath of Marshall. He’d always heard about treaty rights from his family but didn’t take them seriously until he started seeing, in Marshall and other court cases, that the treaties weren’t just pieces of paper, or fables from his father and grandfather, but living, mutually binding agreements.

Cope took particular pride in what he learned about how the Mi’kmaq hadn’t surrendered anything in the Peace and Friendship Treaties. Buoyed by that realization, Cope started amassing his own fishing gear, and secured his captain’s license. Three years later came the lobster trap incident and the DFO charges. Cope was ready to defend his treaty rights.

In Canada, section 35 of the Constitution Act, 1982 recognizes and affirms the Aboriginal and treaty rights of Indigenous peoples. To mount a constitutional challenge, Cope is arguing that the part of the Fisheries Act under which he’s been charged is unconstitutional. “I’m not going to let this go,” he says. “They haven’t heard the last from me yet.”

In doing so, he represents a younger generation of Mi’kmaw fishermen who are standing on the shoulders of Marshall—and who are not backing down from their rights.

But that doesn’t mean it’s easy.

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In May 2020, just a few months before Cope’s run-in with DFO on the water, Cregg Battiste and Kevin Bernard from the Eskasoni First Nation were fishing for elvers on Nova Scotia’s eastern shore. Fishery officers arrested them and seized their gear. Over a year later, DFO charged the pair with violating a federal fisheries order prohibiting the fishing of eels under 10 centimeters. The government had created the order just a couple of weeks before Battiste and Bernard went fishing, to halt what DFO said was “a threat to the conservation and protection of the species,” a stipulation introduced in Marshall II through which treaty rights could be limited.

So in May 2023, a familiar scene played out in a Nova Scotia courtroom. The pair sat with their lawyer, Jeremiah Raining Bird, at the front of a sparsely decorated room, responding to fisheries charges. Battiste and Bernard were there, in provincial court, to give notice that they would be arguing that the fisheries management order violated their constitutionally protected treaty right to catch and sell fish to earn a moderate livelihood, as per the 1999 Marshall decision. The trial is set for October 2025, though in November 2024 Raining Bird asked the court to be removed as counsel, saying he hadn’t been able reach his clients.

Either way, the fishermen will have the opportunity to make their case after waiting five years and four months, a reminder that constitutional challenges are far from straightforward. Mounting a challenge also takes more than time; it can cost a million dollars in lawyers’ fees and the cost of bringing in expert witnesses to go up against an opponent—the federal government, called the Crown, since Canada is a constitutional monarchy—with much deeper pockets.

Lawyer Liam Smith says these charges impose a significant burden on Indigenous fishermen, who are often individuals with limited means. “The Crown just burns them out, financially,” he says. “It has unlimited resources to defend itself.”

In the fall of 2019, William Nicholas, 62, and his son, Zachery, 38, were fishing for lobster in waters near their home in the Mi’kmaw community of Pictou Landing First Nation, in Nova Scotia, when DFO fishery officers arrested them for fishing during a closed commercial season.

Father and son had initially planned to challenge the charges on constitutional grounds. But as the 2024 trial approached, the Mi’kmaw fishermen notified the court that they were withdrawing their constitutional challenge and asked to be sentenced instead. Their reason was purely financial; they couldn’t afford to bring in legal experts to testify.

“We didn’t have enough money to take it to a higher court,” William Nicholas says. “We had no choice.”

Yet the decision to end their constitutional challenge still cost them.

For sentencing, the judge for the case had ordered a pre-sentence report, called a Gladue report, outlining the defendants’ Indigenous background and circumstances. The report found that William and Zachery had experienced the kind of adverse circumstances that have impacted Indigenous communities since colonization—including racism, denial of treaty rights, and historical trauma—which the Nicholases hoped would lead to a reduced fine. Nonetheless, Judge Alain Bégin sided with the federal prosecutor’s recommendation and fined them a total of $4,000. The process left the father and son disillusioned.

At its core, litigation sets up adversarial, zero-sum arguments, says Nicole O’Byrne, constitutional historian and law professor at the University of New Brunswick. “It’s the opposite of what the treaty relationship is supposed to be about,” O’Byrne says. Treaties were meant to establish a framework for a relationship between self-governing parties. But courts are a blunt instrument imposed from outside that leaves no room for discussion.

One fundamental disadvantage of the legal system is that it heightens distrust and damages relationships, says Western University legal scholar Michael Coyle. And while courts play an important role in parsing constitutional boundaries, they weren’t created to deal with multifaceted disputes that require continued coexistence (think of what happens to a separating couple who ratchet up the rhetoric in a divorce trial). “That is antithetical to reconciliation between peoples who are going to be living together for a long time,” Coyle says.

Another case shows the limits of the courts in reaching a resolution.

In July 2020, Jason Lamrock, a member of the Wasoqopa’q (Acadia) First Nation, was heading back to shore on Nova Scotia’s southwestern coast with a load of lobster when DFO fishery officers arrested him and seized his boat, gear, and catch.

According to court documents (Lamrock declined an interview), he informed the fishery officers that as a Mi’kmaw, he was practicing his treaty right to catch and sell lobster to earn a moderate livelihood. Yet he was charged nonetheless for illegally fishing for lobster during a closed commercial season.

Lamrock pleaded guilty to the fishery offenses and was referred to a sentencing circle (an alternative to the formal court process, which offers non-binding recommendations to the judge), organized by the Mi’kmaw Legal Support Network.

In June 2023, a circle composed of Lamrock, Mi’kmaw community members, and members of the justice system gathered and—according to the sentencing circle report—Lamrock told those assembled that “his intention was to go fish lobster in support of fellow Indigenous fishermen and (their) inherent right to fish.”

After hearing from Lamrock, the sentencing circle participants recommended that DFO write a letter of apology to him, return his boat and gear, and pay him the full year of wages he would have earned if his boat and gear hadn’t been seized. But a month later, when the sentencing itself took place in provincial court, the judge said that he was vacating Lamrock’s guilty plea because, in Lamrock’s statement to the circle about his intention to assert fishing rights, the judge saw no admission of guilt.

That sent Lamrock back to square one. He’s now fighting the charge on constitutional grounds; a trial date has not yet been set.

Lamrock’s case reflects a process that—by playing out in the criminal justice system—makes criminals out of people attempting to resolve a political dispute. And even in the best-case scenario for Lamrock, Cope, and the other fishermen pursuing constitutional challenges, the impact of a victory would be limited. If the court finds a regulation unconstitutional—meaning DFO officers enforced a regulation that infringed someone’s treaty rights—the charge is simply dropped. That could be a good outcome for someone like Cope, whose constitutional challenge is set to have its dates pinned down at a court appearance in 2025, but it doesn’t pave the way to a precedent that would finally define Indigenous fishing rights.

Another option with the potential for broader impact is to launch a civil case—specifically, a class action lawsuit (a civil suit on behalf of a group of people).

Class action lawsuits are an avenue fishermen have attempted to use before; in 2015, DFO charged a Mi’kmaw man named Hubert Francis, from Elsipogtog First Nation in New Brunswick, with fishing shrimp without a license. In court, Francis quoted from the Marshall decision—his only defense as he couldn’t afford a lawyer—but was convicted of fishing without a license regardless.

In response, Francis attempted to mount a civil case—a class action on behalf of all Mi’kmaq—to clarify fishing rights and require justification of infringement of those rights. But lacking funds (despite an unsuccessful bid for the government to cover costs, as it sometimes does on issues of exceptional public interest), the class action petered out.

Nonetheless, Cope sees Francis’s case as a source of inspiration: if he’s successful with his constitutional challenge—and can therefore make the case that the government knowingly hindered the exercise of his rights—he hopes to then launch a class action to set a broader precedent. Although, by his estimate, doing so could cost hundreds of thousands of dollars. “We’re going to go the whole nine yards,” he says. “I don’t care how much it costs.”

For some groups, the more promising route has involved stepping outside the legal system.

In June 2024, Sipekne’katik First Nation, in Nova Scotia, was three years into a lawsuit claiming that the Fisheries Act infringed on its community’s rights to fish, when the band and the Attorney General of Canada decided to change tack and focus on mediation instead.

In their request for an adjournment, Canada and Sipekne’katik said the pause was necessary to engender trust. The judge, Chief Justice John Keith, agreed that reconciliation is better achieved through negotiation and gave the parties until December 2024 to put together a mediated solution. A commercial fishermen’s association, the Unified Fisheries Conservation Alliance, opposed the application, saying the court was the only body that would deliver an unbiased decision and direction to follow; that group has since filed a lawsuit against Sipekne’katik’s chief and the Attorney General of Canada, citing a need for legal clarity.

Either way, as Marshall remains—from the Mi’kmaw perspective—unimplemented, tensions have simmered and occasionally erupted. Mi’kmaw fishermen have reported feeling profiled and harassed by fisheries officers, including in March 2024 when two Mi’kmaw harvesters fishing for eels were arrested and then left at a gas station—hours from home, without their phones or shoes—a situation the Assembly of Nova Scotia Mi’kmaw Chiefs has said reflected systemic racism that went beyond a few officers. (In July 2024, the federal fisheries minister announced there would be a comprehensive external review of the incident.) After that, some fisheries officers refused to report for duty, citing unsafe working conditions—compounded, they said, by the fisheries minister’s statements—and a rise in violence and threats from unlicensed fishermen. (Some Indigenous fishermen are among those whom DFO considers unauthorized.) Meanwhile, commercial fishermen have complained of increased poaching, with some reporting they’ve abandoned fishing grounds as a result.

For some scholars, these situations speak to a need for greater treaty education in the legal system, the federal government, and the general public. “When you get non-Indigenous people starting to understand that [there are] problems with the system, and that these problems go back hundreds of years … then we’re going to start getting some movement forward,” says University of New Brunswick professor Nicole O’Bryne.

That societal shift is happening in other contexts. Recently, negotiations culminated in British Columbia’s recognition of the Haida Nation’s title to the lands of Haida Gwaii, giving the Nation control over what was formerly considered provincially owned land; negotiations with Canada over Haida rights to control the waters around Haida Gwaii are ongoing. Provincial government officials said pursuing a negotiated agreement produced a clearer (and less expensive) outcome than a court decision would have.

Negotiation through mediation has an additional benefit; in a potentially adversarial situation, people are more likely to abide by an arrangement they’ve contributed to than one imposed by a third party, says Western University’s Michael Coyle.

But to even begin negotiating, there has to be trust. And for some fishermen, trust is a long way off.

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In July 2024, Cope was once again in court—not for the constitutional challenge but for charges laid while he was lobster fishing on Nova Scotia’s North Shore in September 2023.

In the years since Cope’s first charges, in 2021, the UN Declaration on the Rights of Indigenous Peoples had become law in Canada, and Canada’s Senate had released Peace on the Water, a report urging a new approach to Indigenous fisheries.

Yet in court it seemed that little had changed, and Cope was flabbergasted to be facing new charges—even more so when he learned, through the disclosure of the prosecution’s evidence, the extent of Fisheries and Oceans Canada’s surveillance for the month he was fishing: drones, aerial surveillance, trackers on the boats, officers taking photographs from the woods.

“The honor of the Crown is at stake,” says Cope. “That’s all I keep thinking when I look at [this disclosure].”

In a statement, a spokesperson for DFO said that “fishery officers use a progressive approach to enforcement, beginning with education. All fishing activity is subject to compliance verification by fishery officers, who conduct inspections across all fisheries regulated by the Department.”

The statement said that DFO’s approach to regulating fishing is consistent with the Marshall decisions, including Marshall II. Marshall II clarified that in addition to conservation, regulatory authority extends to other substantial public objectives, including conservation of fishery resources. This spokesperson also said that in Marshall II, the Supreme Court  “noted that the best way to implement treaties is to consult and negotiate modern agreements with First Nations.”

The honor of the Crown forms the basis of Canada’s relationship with Indigenous people; it affirms that governments made treaty promises and are obliged to fulfill them, Mi’kmaw legal scholar Naiomi Metallic says. In some ways, it’s an abstract concept (with roots in the British notion that servants of the Crown must act honorably) underpinning the ethical and moral legitimacy of the state. But as more Indigenous nations and individuals assert their rights, that concept is also developing some muscle, Metallic says—including in July 2024, when the Supreme Court affirmed that Canada had breached treaties with the Anishinaabe of the upper Great Lakes, and that the honor of the Crown created a legal duty to negotiate compensation, after years of ignoring obligations.

In fishing, there’s a particular set of unfilled promises, having to do with the Marshall decision and the treaties before it; from the perspective of Mi’kmaw communities the government has yet to make good on the promise of fishing rights.

Honor is not the only thing at stake in this situation. There’s the health of fish stocks, and the well-being of Indigenous and non-Indigenous communities looking to make a living from them. Yet underpinning it all are the promises made when Europeans and the Mi’kmaq were first learning to live together on this land. Those promises are neither historical artifacts nor pure aspiration. They’re living ties, with benefits—and obligations—for both sides, and they persist. And so, decades after the court issued the Marshall decision, honoring those promises is the path by which a shared future will be built.