Toronto Star

November 18, 1999

Natives accuse court of backtracking on fish

First ruling blown out of proportion, Supreme Court says

By Edison Stewart
Toronto Star Ottawa Bureau

OTTAWA - The Supreme Court of Canada says people have blown way out of proportion the meaning of its controversial decision on aboriginal fishing rights on the East Coast.

In fact, the court went so far yesterday in clarifying its decision that Indian leaders accused it of backtracking in the face of ``mob rule and vigilantism.''

But one critic of the court's earlier decision hailed yesterday's clarification as a ``huge victory'' for non-native fishermen.

Over and over again, the court stressed that Ottawa retains the power to regulate the fishery not only for conservation purposes but to ensure regional fairness and equitable access by non-native fishermen.

Moreover, it said its earlier decision, which triggered confrontations on the East Coast between native and non-native lobster fishermen, ``related only to the closed season in the eel fishery.''

Claims by some aboriginal groups that the earlier ruling extends to logging, minerals and even offshore oil and gas are based on ``unjustified assumptions,'' it said.

While aboriginal rights to these resources might ultimately be found to exist, that decision will have to await future cases, the court said.

The court was ostensibly responding to the West Nova Fishermen's Coalition of Nova Scotia, which had asked it to suspend its Sept. 17 ruling acquitting Donald Marshall, a Mi'kmaq Indian, of violating federal fishery regulations by fishing eel out of season.

In many ways, however, it was responding to its numerous critics, including the Reform party, which used its earlier decision to denounce so-called `'judge-made law'' and accuse the court of creating a ``race-based'' fishery.

Chief Lawrence Paul angrily accused the court of bowing to pressure from commercial fishermen who destroyed native lobster traps after the original ruling.

``The Supreme Court has given in to mob rule and vigilantism to let them get their way,'' Paul, co-chair of the Atlantic Policy Congress of First Nations, told The Star's Kelly Toughill.

``The Supreme Court has hurt its credibility today. It has backtracked. I am not happy.''

Reform fisheries critic John Cummins called the ruling ``a huge victory'' for non-aboriginal fishermen.

``They (the judges) refer to it probably as a clarification but I think that certainly the interpretation of what they said originally has changed immensely.''

`This, I think, now puts us on an equal footing with the natives.'
- Don Cunningham
West Nova Fishermen's Coalition

Will Moreira, a Halifax lawyer who represents commercial fishermen, said there will now be ``a lot more equality'' between native and non-native fishermen.

``This, I think, now puts us on an equal footing with the natives,'' said Don Cunningham of the West Nova Fishermen's Coalition.

``I think this gives the commercial industry more assurances that their way of life and existing access is going to be respected.''

Osgoode Hall professor Patrick Monahan called the lengthy decision unusual but questioned whether the court has moved away from its earlier ruling.

The judges ``took an opportunity . . . to respond to some of the criticism that had been made of the judgment, primarily because most of those critics had failed to pay attention to what the court had actually decided in the first case,'' he said.

``I think it rules out certain broad interpretations of the first case, at least for the time being,'' he added.

Mi'kmaq lawyer Bruce Wildsmith said he was pleased by much of the court's clarification, saying it recognized that natives had rights to a wide range of resources, Canadian Press reports.

``By their choice of words they confirm this isn't just about eels, it's about fisheries resources in general and it's about wildlife resources in general,'' he said, noting the decision stresses the importance of consultation with the Mi'kmaq.

The West Nova coalition asked the court to order a re-hearing to review and elaborate on the Marshall decision, especially what it means for Ottawa's continuing power to regulate fishing for other species, such as lobster.

The court said it is willing to consider suspending the application of the earlier ruling if Ottawa or the New Brunswick government believes it is in the public interest to do so.

Neither government has made such a request, it added, so its earlier decision remains in effect.

But then it stressed repeatedly just how limited that decision was and how it has been misconstrued.

In acquitting Marshall, the majority of the court relied on a 1760 treaty between the Mi'kmaq and the British, which it said gave the Mi'kmaq the right to work for a living through continuing access to fish and wildlife, which they could then trade for ``necessaries.''

But ``the treaty right itself is a limited right,'' the court stressed.

It noted that, in its September decision, it said Ottawa has a continuing right to regulate the fishery - provided it can ultimately justify those regulations to a court, if challenged.

In the Marshall case, Ottawa offered no such justification, it said.

``The issues of concern to the coalition largely relate to the lobster fishery, not the eel fishery, and, if necessary, can be raised and decided in future cases that involve the specifics of the lobster fishery.

``It is up to the Crown to initiate enforcement in the lobster and other fisheries if and when it chooses to do so.''

In addition, while the court reiterated its recognition of the native right to hunt, fish and gather, it underscored that it has not established ``a treaty right ``to gather'' anything and everything physically capable of being gathered.

``The issues were much narrower and the ruling was much narrower,'' it insisted.

``No evidence was drawn to our attention . . . 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.

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