Invited Editorial (Globe and Mail) Give the Mi'kmaq a chance: The court's ruling wasn't a blank cheque, and First Nations are good stewards of the land

Oct 05 1999

The East Coast fisheries dispute arising from the Marshall case focuses on a deal - one made in 1760 between Mi'kmaq Indians and the Crown. In the Marshall case, the Supreme Court found that the Treaty concluded between these two parties is still valid, giving Mi'kmaq peoples certain rights over the fisheries. What is also at issue in the East Coast dispute, along with the recognition of those rights, is the sustainability of the fisheries.In the reaction to the decision, and the consequent move by aboriginal fishermen to set lobster traps during the off-season, it seems there is an assumption that the recognition of Mi'kmaq rights will further harm the fishery resources. Rather, the Mi'kmaq must be given an opportunity to collectively assert an approach to the fish and wildlife resources that both allows them to exercise their recognized treaty rights and conserves the resources. Many First Nations fisheries cases have been heard by the courts since 1982. The aboriginal individuals have lost some and won others. That is because the Supreme Court's approach to proof of aboriginal and treaty rights is specific to the particular place and history. There is a tough onus on each First Nation to prove that it has a treaty right or aboriginal right. The Supreme Court, in the judgment written last month by Mr. Justice Binnie, found that Donald Marshall Jr. met that onus. it found that a deal is a deal. The central question of the case was what the 1760-61 treaties mean today. Judge Binnie wrote that, in exchange for the valuable peace with the Mi'kmaq, who were, in the 18th century, "a considerable fighting force", the treaty gave them the right to trade the products of their hunting, fishing and gathering for "necessaries". The Court interpreted this to mean the right to trade fish and wildlife resources for a moderate livelihood. It further stated that it was not recognizing a "preferential" trading right; but only a "treaty" trading right.That right is limited not only by the interpretation of "necessaries" as a "moderate livelihood", but by the Supreme Court's jurisprudence, which allows the Crown to infringe constitutional treaty rights in certain circumstances. Judge Binnie repeated that the treaty right proven by Donald Marshall is "subject to regulation". Where the Crown proves conservation is needed, the Court has in previous cases upheld regulations that limit the exercise of an aboriginal or treaty right -- while requiring that the government first consult with the aboriginal leadership.In that context, it is unfortunate that Ottawa is now being asked to unilaterally intervene and possibly ride roughshod over the treaty rights of aboriginal peoples. These peoples should have the right to decide how to exercise their rights; only when their approach truly conflicts with bona fide conservation interests should the government regulate the fishery in a way that might infringe their rights. Even then, the Supreme Court has said in past rulings that the government must act in pursuit of a valid legislative objective that is "compelling and substantial", and do so in a way consistent with its fiduciary duty to aboriginal peoples. The tragedy of the vociferous reaction on the East Coast to the actions taken by aboriginal fishermen in line with the Marshall decision is that emotions and fears have flared even before the aboriginal leaders have had a chance to determine their approach, consistent with conservation interests, and then to discuss that approach with the federal government. It is just plain inconsistent with history to assume that the Mi'kmaq approach to the fishery will ruin it. Let's give them a chance to exercise their treaty rights. It's not as if federal regulation has been a glowing model of good stewardship over the East Coast fisheries resources.- 30 -For more information:Canadian Environmental Law Association:Theresa McClenaghan, Counsel, or Paul Muldoon, Executive Director, 416-960-2284