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Thursday, November 18, 1999

Supreme Court's lengthy clarification a rare move, experts say
Judges explain why they won't rehear fishing case
Graeme Hamilton
National Post

Bruno Schlumberger, Ottawa Citizen
... and contained a dissent written by Justice Beverley McLachlin.

The Canadian Press
The original Marshall decision was written by Justice Ian Binnie...

HALIFAX - The Supreme Court of Canada's publication of a lengthy clarification to the Marshall decision is an unprecedented response to the havoc created in the East Coast fishery by the original ruling, legal experts said yesterday.

"I think they feel that they've stepped in a bit of a cow patty here and are trying as delicately as they can to get their foot out of it," said one court observer, who asked to remain anonymous.

Usually when the court rejects an application, no reasons are given. Wayne MacKay, a professor of constitutional law at Dalhousie University in Halifax, called yesterday's explanation of why the judges would not rehear the Marshall case "quite unusual."

The court scolded the West Nova Fishermen's Coalition, which had sought the rehearing, for having "a basic misunderstanding of the scope" of the Marshall decision. But. Prof. MacKay said the fishermen were not alone.

"I've read it carefully and taught that decision. It's certainly open to interpretation," he said. "They've obviously, like everybody else in Canada, been aware of what's been happening, and this gives them a platform to clarify things that they feel have been misinterpretations of their decision."

In the months since the Sept. 17 Marshall decision, the Maritimes have seen: natives claiming an unrestricted right to fish lobster in a closed season; a Maine tribe claiming the right to fish for scallops in Canadian waters; New Brunswick natives claiming a treaty right to harvest timber; and a Nova Scotia Mi'kmaq crew threatening to fish crab off Newfoundland.

Yesterday's ruling, with many points not contained in the original decision, can be seen as a response to those actions. The court now states explicitly that closed seasons can be imposed on an aboriginal fishery, where justified "for conservation or other purposes." It says the treaty right is enjoyed only by members of "an aboriginal community in Canada," calling into question the claim of the Maine tribe. It says the Marshall decision does not cover trade in logging and it specifies that the treaty right is a communal right that can be exercised only in "the area traditionally used by the local community," which would appear to put Newfoundland off-limits for Nova Scotia Mi'kmaq.

Yesterday's ruling comes less than two weeks after Justice Beverley McLachlin, the incoming chief justice of the Supreme Court, emphasized that judges must be aware of the impact their decisions have on lives of ordinary Canadians.

"The idea that there is some law out there that has nothing to do with consequences and how it plays out in the real world is an abstract and inaccurate representation of what the law is," Judge McLachlin, who wrote the dissenting opinion in the original Marshall decision, said earlier this month.

Prof. MacKay said the initial ruling was misinterpreted by some to mean open season for aboriginal fishing, hunting and gathering. "I think really the court needs to take some of the blame for perhaps not being as clear about what the limits were. It's probably true to say that some of it has been a misinterpretation, but aboriginal rights are pretty complicated stuff," he said.

Henry Brown, an Ottawa lawyer and author of Supreme Court of Canada Practice 2000, said he knows of only two or three occasions when the court has given reasons for refusing a rehearing of an appeal in the last 20 years. Never has the court explained its reasons at such length, he said.

He added that it is significant that yesterday's ruling was issued by the court as a whole and not signed by an individual judge. The original 5-2 decision was written by Justice Ian Binnie.

"They've come together as the court. There can be no dispute as to what they now say," Mr. Brown said.

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