Globe and Mail

Top court issues rebuke in fish furor

Judges refuse to reopen native case, blast major players

KIRK MAKIN
Justice Reporter
The Globe and Mail
Thursday, November 18, 1999

The Supreme Court of Canada refused yesterday to reopen an aboriginal fishing case that touched off a national furor in September, saying its judgment was misunderstood and blown out of proportion.

In an unprecedented rebuke, the court made it clear that a two-month firestorm pitting fishermen, politicians and commentators against one another was caused by them misreading -- or simply not reading -- what was explicitly stated in the judgment.

No sooner was that judgment released two months ago than an ugly, highly publicized -- and sometimes violent -- clash broke out between aboriginal and non-aboriginal fishermen on the East Coast.

The vast majority of commentators who waded into the fray criticized the Supreme Court decision as a reckless, wholesale opening of Canadian fisheries and forests to aboriginals.

Far from redrawing the boundaries of aboriginal treaty law, the court said yesterday, it did nothing more than decide that Donald Marshall -- a New Brunswick Mi'kmaq -- had a treaty right to fish for eels out of season.

"The majority judgment did not rule that the appellant had established a treaty right to gather anything and everything physically capable of being gathered," the judges noted sardonically.

"The court did not hold that the Mi'kmaq treaty right cannot be regulated or that the Mi'kmaq are guaranteed an open season in the fisheries. The government's power to regulate the treaty right is repeatedly affirmed in the Sept. 17, 1999, majority decision."

The court was split 6-3 in its September ruling. In contrast, it made a rare and pointed show of unity yesterday. The dissenting judges joined the majority to identify the decision as having been written "by the court."

Mr. Marshall was charged in 1996 with catching 463 pounds of eel and selling them for $787.10.

The court said yesterday it would be unfair to stall Mr. Marshall's acquittal any longer simply because others have badly misconceived the September decision.

Addressing critics who say the court was reckless in not examining possible justifications behind fishery regulations, the judges said there was no choice in the matter.

The court pointed a finger straight at the federal government, saying government lawyers passed up the opportunity to justify the regulations during the appeal hearing.

In pondering why the government chose this course, the court noted that according to the Native Council of Nova Scotia, eels face absolutely no danger of being overfished. Nor, the council said, is therea significant non-native commercial eel fishery in the first place.

The government also failed to ask for time to rectify its regulations in the event the court were to rule against it, the judges said. They offered even at this late date to entertain the possibility of a suspension, if one is requested.

The September decision was based on a 1760 treaty between the Mi'kmaq and the British. Mr. Justice Ian Binnie, who wrote the majority decision, said it was important to consider not just the treaty, but oral statements by the British that were recorded in other historical documents.

Yesterday, the court stressed its ruling did no more than give those Mi'kmaq affected by the treaty access to fish and wildlife solely for the purpose of trading for "necessaries," such as food, clothing, housing and a few amenities.

The court said it had specifically stated that government regulations may be justified on a basis of conservation, economic and regional fairness, or on a history of sharing a resource between aboriginals and non-aboriginals.

It also noted that some aboriginal spokesmen became carried away with extravagant interpretations of the original decision.

"No evidence was drawn to our attention -- nor was any argument made in the course of this appeal -- that trade in logging or minerals or the exploitation of offshore natural gas deposits was in the contemplation of either or both parties to the 1760 treaty," the court said. "The issues were much narrower, and the ruling was much narrower."

The application for a rehearing was made by the West Nova Fishermen's Coalition. The coalition was particularly keen on the Crown being permitted to give reasons justifying its fishing regulations.

However, the court said the coalition should have no trouble finding answers to its questions in the Marshall decision. It added that the principles in the case follow consistently from many years of aboriginal-rights jurisprudence.

"With all due respect to the coalition, the government's general regulatory power is clearly affirmed," the court said. "It is difficult to believe that further repetition of this fundamental point after a rehearing would add anything of significance to what is already stated in the Sept. 17, 1999, judgment."

The court scornfully rejected the coalition's argument that a non-aboriginal fisherman should never be displaced by a treaty right. "This is not a legal principle," the court said. "This is a political argument."

It said the the Constitution Act of 1982 entrenched existing aboriginal and treaty rights, making them invulnerable to unilateral extinguishment by governments. To "revisit such fundamental and incontrovertible principles" would be a useless exercise, the court said.

"In a series of important decisions commencing with R v. Sparrow (1990), which arose in the context of the West Coast fishery, this court affirmed that aboriginal and treaty rights are subject to regulation -- provided such regulation is shown by the Crown to be justified on conservation or other grounds of public importance," the court said.

A number of criteria have been developed over the years to test whether an attempt to justify an infringement is valid, the court said. However, because of the government decision not to justify its regulations, the court said these did not come into play in the Marshall case.

"It was the Crown's decision to proceed against the appellant by way of an ordinary prosecution," it said. "The appellant responded to the Crown's evidence. He was found not guilty of the case put against him.

"The appellant, like any other accused who is found to be not guilty, is ordinarily entitled to an immediate acquittal -- not a judgment that is suspended while the government considers the wider implications of an unsuccessful application."

A prosecution of an individual is very different than a reference case in which the court must decide the general validity of a legal provision, the court said.

It noted that in some recent constitutional references cases, it has willingly granted a suspension of its decision to give legislators a chance to remedy their problem.

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