The Marshall Decision and the Maritime Canadian Fishery

In August of 1993, the authorities arrested Donald Marshall Junior and the Crown prosecuted him on three charges under the Fisheries Act: the selling of eels without a license, fishing without a license and fishing during the close season with illegal nets. Donald Marshall admitted his guilt at having illegally caught during the close season 463 pounds of eels in Pomquet Harbour, Antigonish County, Nova Scotia and selling them for $787.10. The issue at trial, his defense, was the affirmation of a treaty right to catch and sell fish as found in the treaties of 1760-61 that he believed exempted him from compliance with the fishery regulations. The trial judge found him guilty. He appealed and the Nova Scotia Court of Appeal similarly denied the affirmation of his treaty right and found him guilty. However, in September, 1999, the Supreme Court of Canada allowed his appeal and acquitted him on all charges. The court decided that Donald Marshall had a treaty right to secure a "moderate livelihood" by hunting fishing and gathering natural resources. However, the court also held that this right was a regulated one, which did not allow him to freely pursue unlimited economic gain.

By affirming the treaty right of First Nation peoples to make a moderate livelihood from fishing, hunting and gathering, the people of Esgenoôpetitj (Burnt Church) attempted to exercise their legally affirmed treaty right by fishing for lobster in September and October, 1999. This initiative was met with an unprovoked attack by non-native fishermen who cut lobster trap lines and destroyed $210,000 (Canadian) worth of traps belonging to the people of Esgenoôpetitj. The Canadian government authorities - the Department of Fisheries and Oceans (DFO) and the Royal Canadian Mounted Police (RCMP) - were dormant; no action was taken to prevent or stop the destruction of property or escalating levels of violence. An atmosphere of fear and anger emerged as violent threats, gun-toting, and assaults increased between native and nonnative people. One Mi'kmaq man was seriously injured during an altercation.

In November, after the destruction of the traps, a clarification of the Marshall decision was drafted by the judges who dissented in the original decision. Comments made by the court about fisheries regulation appeared to shift the balance of power away from the native people and towards the government. The clarification declared that:

"The federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds. The Marshall judgment referred to the Court's principal pronouncements on the various grounds on which the exercise of treaty rights may be regulated. The paramount regulatory objective is conservation and responsibility for it is placed squarely on the minister responsible and not on the aboriginal or non-aboriginal users of the resource. The regulatory authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups."

However, it also was stated that the Minister has an obligation to consult aboriginal people about limitations on the exercise of treaty and aboriginal rights, and has to justify the use of such regulations for conservation or other purposes when attempting to limit the exercise or extension of a treaty right and that any regulation should not infringe about the right to earn a moderate livelihood. Following this clarification, the DFO limited the number of Esgenoôpetitj traps to 600 and began to confiscate traps. Sound justification for these limits was provided to any of the concerned parties. The issue of conservation was imply stated as a justification but never demonstrated by the DFO.

In the spring of 2000, the DFO attempted to regulate First Nation fishing in New Brunswick by offering fisheries agreements to 34 bands in Atlantic Canada. These agreements give DFO the regulatory power outside of treaty rights and limits the amount of traps in exchange for cash, boats, equipment and training. The Atlantic Policy Congress of First Nations Chiefs found the the template of the agreement unsatisfactory in that it would have negative impacts on future treaty right rulings. The congress advised bands not to sign. Nevertheless, DFO managed to have 29 of 34 bands have signed full or interim agreements.

To encourage signing, the DFO offered access to commercial and food fisheries, substantial monies, boats, gear, training, and fishery-related economic development initiatives such as aquaculture, eco-tourism or new equipment or facilities related to the commercial fishery. Offers are as high as $22 million per band were made and signing bonuses were available for councilors who are band signatories. Because the agreements are for communal licenses, it is believed by some that economic benefits will accrue to only a few people in the First Nations community.

Burnt Church, Acadia, Afton, Bear River, and Indian Brook to date have not signed government fisheries agreements. In Burnt Church, community meetings were held and they determined that it was essential to protect their treaty right by not risking or losing it through agreements clearly not in their favor in the long term. They developed their own fisheries policy and management plan, The Esgenoôpetitj First Nation Management Plan, which was designed to protect the treaty right, the fishery and the ecosystem and to simultaneously assure collective benefits for all community members.

To regulate their fishery they issued permits and treaty tags to any community member willing to fish, established a spring and fall fishery, and set a limit of 15,000 traps for the fall fishery and 5,000 for the spring one to address conservation issues raised by the Marshall clarification and the DFO. The 15,000 traps would be not be in addition to commercial fisherman traps. The number would come from a reduction by 12 of the total number of traps allowed by commercial licenses (300). In this way the total increase in fishing pressure in the bay would be 5,000 traps. The DFO did not recognize the Esgenoôpetitj First Nation Management Plan, and later announced that non-DFO tags would not be recognized and threatened to seize boats and equipment that did not have DFO issued tags.

Until October 7th, the community continued to exercise its treaty rights by putting out traps. In turn, the DFO seized traps, harassed, beat and arrested fisherman, rammed boats and forcefully asserted its right to regulate the fishery for unspecified and non-validated calls for conservation. First Nation people tried to prevent trap seizures by blocking DFO boats with their own and responded to DFO boat rammings and beatings by throwing rocks at DFO boats. Several First Nation people were injured and one DFO officer received a serious head and eye injury from a rock thrown by a First nation boatman. The DFO reports that from August 13th to September 22 it has seized 3,616 traps. Threats of violence by both sides escalated and shots have been fired. At the close of the fall fishery in October, as the lobsters move to deeper water and traps were gradually removed, an unreal calm settled over troubled waters. But there is no end in sight to the conflict created by the shifting disparities in the interpretation of law and distribution of power.