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MINORITY REPORT OF THE REFORM PARTY

John Cummins, M.P.

"We come here to assure you, in the name of all those of whom we are Chiefs, that the propositions which you have been pleased to cause to be sent to us in writing have been very acceptable to me and my Brethren and that our intentions were to yield ourselves up to you without requiring any Terms on our part . . . Your Generous manner, Your good Heart, your propensity to Clemency, make us hope that no mention will be made of any Hostilities that may have been committed by us against you and Yours . . . You now, Sir, see us actually in your presence, dispose of us as you please." (Words of Cape Breton Mi'kmaq Chief to the Governor of Nova Scotia at treaty signing ceremony on June 25, 1761.)

The purpose of this Minority Report is to review the Marshall decision as a starting point, to demonstrate the fundamental weakness in the Supreme Court's decision and the government's response to it and to propose courses of action for the federal government which recognise both the fundamentals of our shared humanness and the basic realities of fisheries management.

There is a popular view that the Mi'kmaq are simply the victims of history. Such a view not only distorts history but also inadvertently disparages the historic role played by the Mi'kmaq.

Donald Marshall, a Cape Breton Mi'kmaq native, was charged under the Fisheries Act with selling eels without a licence, fishing without a licence and fishing during a close season with illegal nets. He claimed to be protected from prosecution by treaties between the Mi'kmaq and the Governor of Nova Scotia which gave him a right to fish commercially.

The trial judge, after hearing evidence for forty days from expert witnesses, found, and was affirmed by the Nova Scotia Court of Appeal, that the treaties of 1760-61 did not grant a treaty right to catch and sell fish. The Court of Appeal found that "the mercantile nature of the British economy; the fact that the Governor had been instructed not to place any subject in a preferential trading position; and the fact that, pursuant to this treaty, the Mi'kmaq were submitting to British law" lent support to the trial judge's conclusion. In addition the Court of Appeal concluded that the treaties did not grant any right to trade, not even a limited "right to bring" goods to truckhouses. While Marshall was convicted, no penalty was either sought or imposed.

The Supreme Court of Canada on September 17, 1999 overturned the conviction, finding that a 1760 treaty with a Maliseet band provided natives with a preferential right to fish commercially. The Court never explained how it turned a 1760 prohibition preventing natives from trading furs with the enemy into a constitutional right. Nor did they explain why the Governor, to whom the Mi`kmaq had just surrendered, would grant the Mi'kmaq a priority right to fish commercially ahead of other citizens and why a treaty in which fish was not listed as an item for trade could be interpreted today as a priority right to harvest fish commercially. Certainly the British government did not intend that natives should have special access to the fishery. The Governor, in 1764, was instructed to inform them of the government's commitment to leave them "free resort to any part of the Sea Coast for the benefit of Fishing, in like manner as His Majesty's other Subjects."

Nevertheless the federal government and natives read Marshall to give natives a wide-ranging right to fish commercially. Natives understood it to mean that they could fish throughout the year without restrictions. Commercial fishermen understood that such unrestricted fishing by natives would mean that stocks would be devastated and they would be forced out of the industry. The Indian Affairs Minister speculated that it included the right to harvest timber and other natural resources!

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In finding a right to trade in fish, the Supreme Court relied on the testimony at trial of Prof. Stephen Patterson, a witness for the Crown. When the decision was rendered Prof. Patterson immediately pointed out that his testimony could not be taken to support such a right, that it was a misrepresentation of what he said. The Court of Appeal had specifically found that his testimony did not support a right to trade in fish.

In a highly unusual move the Supreme Court issued a correction on September 30, 1999. The original decision was changed to indicate that the Court disagreed with Patterson's testimony. Yet, it did not change its conclusion that a 1760 treaty gave a right to fish commercially. The decision now appeared more than ever to be a manipulation of history rather than a reflection of it. It left unexplained how this once highly regarded testimony could be dismissed without impacting the Court's finding.

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In the week following the September 17th decision the Reform Party called for the federal government to return to Court to seek a stay of judgement and rehearing of key issues. Neither the government nor the other opposition parties supported the call. Given the lapses in the original decision, not to mention the difficulties inherent in its implementation, the government should have sought a stay of judgement. Fortunately, fishermen sought a stay and rehearing on the issue of the ability of the federal government to enforce fisheries regulations.

The Court on November 17, 1999 rejected the fishermen's application for a stay and rehearing but, in another highly unusual move, rewrote the decision to resolve some of the uncertainties created by the first decision. It reminded the government that licensed commercial fishermen had a right to participate in the fishery; that the fishery can be regulated in the pursuit of economic and regional fairness; that treaties and their benefits are local in nature; and that the Minister has the power to regulate seasonally. The Court seemed taken aback by the government's refusal to seek a stay and invited the government to return if it thought it in the public interest to do so.

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The Court made it clear in its November 17th decision that the appeal had been about "fishing eel out of season" and that the decision "established the existence and infringement of a local Mì`kmaq treaty right to carry on a small-scale commercial eel fishery". It referred to the "eel fishery" and the "local" nature of the treaties and their benefits at least 10 times -- enough times to make it very clear it had only considered eels, not lobsters or salmon; and enough times to make it clear that a Cape Breton Mi'kmaq treaty does not necessarily provide benefits in mainland Nova Scotia. Yet the Court failed to recognise that Mr. Marshall had not proven he was fishing in his treaty waters.Mr. Marshall, a Cape Breton Mi'kmaq, was fishing in Pomquet Harbour, near Antigonish on mainland Nova Scotia when charged.

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Unfortunately the government ignored the November 17th decision. It has yet to amend the negotiator's terms of reference to include his duty to licensed commercial fishermen. The negotiator's job description implies that the only persons who have a right to fish are the aboriginals. In addition the government has ignored the Court's clear direction that the treaties are local and their benefits are local - it has given a Shubenacadie band a lobster licence for Yarmouth.

Care and restraint must be shown by everyone in interpreting the decision as a basis for making fundamental and irrevocable changes in the Maritime economy and the lives of its fishermen. Nevertheless the government, according to news reports, appears set to purchase up to 3/4 of the fishing licences in some areas for $300-500 million. Taking licences out of fishing communities will destroy them, eliminating jobs and businesses, effectively wiping out the community's reason for being.

By proceeding with an uncontrolled buy-back the government ignores the advice of the Supreme Court which makes clear that protecting licensed fishermen is "in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on [it]."

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A single decision that the Court has already revised twice does not provide the government a realistic foundation on which to make wholesale changes in the structure of various fisheries on the East Coast.

The Hon. John Fraser, former Speaker of the House of Commons and Minister of Fisheries and Oceans, has observed that following the Sparrow decision the federal government believed that the Court was about to find that West Coast natives had a constitutional right to a commercial salmon fishery. In response in 1992 the government established a commercial salmon fishery for a few select aboriginal groups on the Fraser River under the Aboriginal Communal Fishing Licences Regulations.

These fishing regulations have proven to be a disaster - the commercial fishery and fish stocks on the Fraser have been devastated because of the impossibility of effectively managing two commercial fisheries. The Fraser River went from a healthy prosperous commercial fishery prior to 1992 to no commercial fishing in 1999.

It is not unreasonable to caution that if care is not taken in implementing the directive of the Court in Marshall, disaster could strike the Maritime lobster fishery and other fisheries impacted by the decisions - disasters no doubt to be blamed on some unexpected, unexplained environmental anomaly.

The native food fishery was the first aboriginal rights based fishery established following a decision of the Supreme Court. While the Sparrow decision implies that a food fishery is self-limiting, in practice it never has been. It has been a source of poaching and black-market sales of fish. The government has never sought to police it like the all-Canadian commercial fishery.

The West Coast native commercial fishery has been a source of similar lawlessness. The Hon. John Fraser observed that: "If an adequate enforcement capacity, representing a significant deterrent to illegal fishing, is not established . . . there is likely to be a serious erosion of Fraser River salmon restoration programs . . . If permitted to continue, the attitudinal anarchy reflected in many user groups during 1994 will sooner or later destroy the fishery." His observations were prescient.

The problems associated with the food fishery proved a precursor of what was to happen in the native commercial fisheries on the West Coast. Governments must ensure that the same mistakes are not repeated on the East Coast. If they should be, we can expect the virtual elimination of any fishery or fish stock where they occur.

Recommendations:

The Court has observed that a commercial right can never be satisfied while the resource is still available and the market is not sated. The Marshall decision went some distance beyond the proportionality principle established in Gladstone, to satisfy a right of commercial participation in the fishery - it observed that the level of native participation, from the inception of the treaties of 1760 - 61, was to be "enjoyed alongside the commercial and recreational fishery of non - natives." In a region where the native population is about 1% of the general population, the proportionality principle would suggest that the level of native participation required by Marshall could be satisfied at a level not substantially different from their population as a proportion of the general population. Thus if native participation in the fishery were 2 or 3 %, the Marshall requirements should be more than satisfied.

That being said, Mi'kmaq participation in the lobster fishery must be seen in the context of fisheries management over the past several decades. Prior to 1968 the lobster fishery was open to everyone. Anyone including the Mi'kmaq could have purchased a licence for 25 cents. After 1968 licences were restricted to active fishermen. Today, if they are not fishing they ought to look in the mirror and at the Indian Act, which may have restricted their participation in today's economy.

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In the November 17th decision, at para. 17, the Court notes that "treaty rights do not belong to the individual, but are exercised by authority of the local community to which the accused belongs and their exercise is limited to the purpose of obtaining from the identified resources the wherewithal to trade for necessaries."

Given the great leap the Court made to establish the right in the first instance it is more than curious why they would accept the frozen in time concept of "communal right" and limit the possibilities for enterprising native fishermen to "necessaries".

The Court should have recognised that socialised ownership has a record of failure in this country and throughout the world. The success of our society and our economy is based on private ownership. Indeed during the hearings the Committee was informed of an instance where a boat and licence had been given to a community but had not been used because the vessel had fallen into disrepair and no one was prepared to take it upon themselves to ensure the vessel was seaworthy and ready to fish. Indeed the community's efforts to profitably fish the vessel had not been successful. Fishing, like farming, is not an enterprise that lends itself to collectivism. Rather it requires a large amount of individual initiative if the operation is to be successful.

Individual enterprises succeed in part because of pride of ownership. We value most what we have earned. Handing over vessels and licences free of encumbrances will undermine rather than contribute to successful Mi'kmaq participation in the fishery. In the long term, Mi'kmaq fishermen will succeed not with handouts but with a hand-up. That being said, the government should recognise, as undoubtedly the Court would if the notion was presented to them, that the modern manifestation of a treaty right is one which accrues to an individual through his membership in a community and that that right is not limited to the acquiring of necessaries.

To accommodate the treaty right the government should encourage native participation in the fishery through a program which provides native fishermen with a down-payment on a licence and vessel and a competitive loan to cover the outstanding value of the assets purchased. The program would be available to natives who presented a viable business plan for their operation and a clear understanding of their personal commitment to the success of their fishing operation.

Efforts to provide economic opportunities to native communities through communal licensing schemes on the West Coast have been abject failures with only a few reaping huge rewards while the rest of the community enjoys little or no benefit. The dislocation caused to neighbouring fishing communities, by exclusive native commercial fisheries, has been so great that the stated objective of the Supreme Court in Gladstone, at para. 75, of achieving "the reconciliation of aboriginal societies with the rest of Canadian society" has been thwarted. The mistakes of the West Coast need not be visited on the East.

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The November 17th decision lists the various grounds on which the exercise of treaty rights may be regulated. The Court, at para. 44, noted, "the Minister has available for regulatory purposes the full range of resource management tools and techniques provided their use to limit the exercise of a treaty right can be justified". In testimony before the Committee, Chris Harvey, Q.C., a noted expert in fisheries and water law, outlined how a single licensing regime can be made consistent with Marshall.

Given the failure of the Aboriginal Communal Fishing Licenses Regulations on the West Coast the government would be wise to discontinue their use in response to Marshall and instead pursue the goal of a single licensing regime and regulatory framework for the East Coast fishery which expert testimony has stated to be possible.