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Thursday, November 18, 1999

Judges rule natives not immune to fishing laws
High court clarification
Robert Fife, Ottawa Bureau Chief and Graeme Hamilton
National Post

OTTAWA AND HALIFAX - The Supreme Court of Canada issued a substantial clarification of its controversial judgment on native fishing yesterday, saying it does not give aboriginals access to forestry, mineral and oil resources on Crown lands.

The high court also went out of its way to underscore that native fishermen are subject to federal regulations -- which could include a closed fishery-- in exercising their 1760 treaty right to hunt, fish and gather for a "moderate livelihood."

Not only do natives not have an unrestricted right to fish, the Supreme Court said yesterday that Ottawa can even impose regulations to limit their treaty rights to ensure there is "fairness" and recognition of the "historical reliance upon, and participation in, the fishery by non-aboriginal groups."

It issued the rare clarification of its Sept. 17 judgment in a 30-page dismissal of a motion, filed by Nova Scotia lobster fishermen, to reopen the case of Donald Marshall, the Cape Breton Mi'kmaq acquitted of fishing for eel without a licence and out of season.

The Marshall judgment prompted lobster fishing by hundreds of aboriginals in the off-season and led to violent protests by commercial fishermen who fear their fishery will be put in jeopardy.

"The interpretation of what the court said originally has changed immensely ... It is a vindication for those of us who asked the government to seek these clarifications in the first place," declared John Cummins, the Reform fisheries critic.

"They rejected the right to a rehearing but then they went to work and clarified many of the concerns that people had."

In its 6-0 decision, the Supreme Court dealt a reprimand to Bob Nault, the Indian Affairs Minister, who supported the view of the Native Council of Nova Scotia that the Marshall ruling extended native rights to natural resources on Crown lands.

"It will be open to an accused in future cases to try to show that the treaty right was intended in 1760 by both sides to include access to resources other than fish, wildlife and traditionally gathered things such as fruit and berries," the court said.

But the court appeared to rule out extending native rights to logging, mining and oil extraction when it explained the Sept. 17 judgment dealt with "the types of the resources traditionally 'gathered' in an aboriginal economy."

Despite the ruling, Mr. Nault said he believes future court judgments could favour expanding native rights to natural resources, which is why he is determined to negotiate new arrangements with aboriginals and the provinces.

"Instead of the courts defining our relationship as a country with First Nations, we as politicians and as leaders should do it and stop letting the courts have to make the tough decisions that politicians should make," he said.

Native leaders in Nova Scotia and New Brunswick, who thought the original decision opened access to all natural resources, said they feel betrayed. Lawrence Paul, chairman of the Assembly of Nova Scotia Mi'kmaq Chiefs, called the decision a victory for non-native fishermen who destroyed Mi'kmaq lobster traps.

"I think they backed off a little bit and they gave in to mob and vigilante rule," Chief Paul said. "They set a bad precedent as far as I'm concerned, because if they make some other decision that makes a large group of people angry, they'll resort to the same tactics."

Robert Levi, Chief of Big Cove, New Brunswick's largest reserve, said the decision will erode his people's faith in the justice system. Members of his community had begun logging on Crown land as a result of the Marshall decision.

"I'm not surprised. Every time that we get our rights, you get the federal government and the provincial government combining and trying to get our rights watered down to nothing, and that's exactly what they're doing again," he said.

Although its motion to rehear the case was rejected, the West Nova Fishermen's Coalition cheered yesterday's decision, saying it achieved everything it wanted without having to go through a rehearing.

Don Cunningham, the coalition president, said he hopes the clarification will calm fishermen's fears that their livelihood was threatened.

"There's no doubt that this has taken away a lot of the things that the natives thought they had," he said.

The Supreme Court said the Marshall decision granted the Mi'kmaq year-round fishing rights for eels because Ottawa did not provide a justification for closing that fishery. Eels are not an endangered species and there is no significant non-native commercial fishery, it noted.

However, the court said the government could justify restrictions for natives fishermen, such as a closed season, to conserve other species such as lobster, scallops, cod and crabs.

"Conservation has always been recognized to be a justification of paramount importance to limit the exercise of a treaty and aboriginal rights," the court said. "It is up to the Crown to initiate enforcement action in the lobster and other fisheries if and when it chooses to do so."

Herb Dhaliwal, the Fisheries Minister, ruled out using the courts again to define the rights of aboriginals to fish for lobster out of seasons, saying he prefers to follow the recommendation of the Supreme Court to negotiate a "modern agreement" on treaty rights with aboriginals.

"We have a choice. We can negotiate or we can keep going back to the courts over and over again to define all those things. My preference is to negotiate those rather than going back to courts," Mr. Dhaliwal said.

He has has appointed federal negotiators to find an interim arrangement to accommodate native fishermen's rights and conservation concerns.

The decision clarifying native rights was supported by Justices Beverley McLachlin, who will become chief justice in January and Charles Gonthier, who wrote the dissenting opinion in the Marshall case.

Since the announcement of her promotion, Judge McLachlin has warned judges must take into account the impact of their actions on the real world, which some observers interpreted as criticism of the original Marshall case.


(Each link opens a new window)

  • The Department of Indian and Northern Affairs

  • Assembly of First Nations

  • Final Report of the Commission on Aboriginal Peoples

    Requires a frames-capable browser.

  • First Nations Information Project

    A great list of native links.

  • Copyright Southam Inc.