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/Burnt Church 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 the controversial 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 management-focused approach 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.


My thanks to the people of Esgenoôpetitj for welcoming me into their community so soon after the dispute, and for sharing some of their experiences and insights with me. Thanks to the anonymous reviewers for their comments, and to an anonymous reviewer of another manuscript, whose comment sparked the idea for this paper. Thanks to Nick Shrubsole and Marc Fonda for the AAR-EIR panel where this paper began, and to Mona Lafosse and Chris Klassen for commenting on drafts. Responsibility for errors is mine alone. This research was supported by a SSHRC Doctoral Fellowship, the Arthur and Sonia Labatt Fellowship in Environmental Studies at the University of Toronto, and the E. W. Nuffield Graduate Travel Award (University of Toronto).

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.