Landmark win for Micmacs: High-court ruling sets standard for treaty interpretation

RICK MOFINA
The Gazette (Montreal)
Saturday, September 18, 1999

OTTAWA. The Supreme Court has bestowed increased importance on historical agreements by upholding a 240-year-old treaty between the king of England and Micmac Indians.

The high court's 5-2 decision yesterday striking down Donald Marshall Jr.'s 1996 conviction for catching and selling eels without a license and in the off-season establishes a new, deeper approach to interpreting aboriginal treaty rights.

''It's been hard work, but hard work pays off in the end,'' Marshall said yesterday in Halifax.

Marshall, who spent 11 years imprisoned for a murder he didn't commit, said he had dealt with bigger problems and was determined not to quit his treaty case.

In 1993, he sold 200 kilograms of eels caught off Nova Scotia for $787.10. He was convicted and appealed his conviction to the Supreme Court.

Marshall maintained that under the treaty signed between the Micmacs and King George II in 1760, he had the right to catch and sell fish without government intervention.

The Supreme Court agreed yesterday, but stressed that the treaty limits the Micmacs' fishing rights to daily needs, or what it called a ''moderate livelihood'' including ''food, clothing and housing, supplemented by a few amenities,'' Justice Ian Binnie wrote for the majority.

new approach

The treaty does not allow those governed by it to establish factory-scale commercial ventures, the court said.

In reaching its decision, the Supreme Court's analysis of the treaty went beyond what the document stated but what it meant to the parties involved.

The high court examined historical records, other documents and looked at expert testimony in the case, establishing a degree of measurement that might set a new approach to treaty disputes.

The ruling stands as the latest in a string of positive decisions for aboriginals by Canada's top courts.

In the wake of favourable rulings for aboriginals in the areas of taxation and land rights, Supreme Court justices have identified aboriginal rights as being among the chief issues facing the judiciary heading into the next century.

Although yesterday's decision specifically concerns aboriginals represented by the 1760 treaty with the Micmacs, the Maliseet First Nation and the Passamaquody First Nation living in New Brunswick, its impact could reach into all outstanding legal treaty disputes.

The federal government immediately began assessing the depth of yesterday's ruling.

The Department of Indian Affairs is currently litigating 334 outstanding treaty cases. They encompass hundreds of billions of dollars of resources in such areas as oil and gas, fishing, logging, land, as well as taxation cases.

''We are studying the impact of today's Supreme Court decision. We're consulting with the Justice Department regarding the implication on treaties,'' said Steve Outhouse, spokesman for Indian Affairs.

Aboriginal groups also began weighing the virtues of yesterday's ruling, said Chief Ron Derrickson of the Westbank Tribal Nation, which is embroiled in a dispute with the British Columbia government over ownership of logging and land rights near Kelowna.

'delighted'

''I am delighted with the decision. The Supreme Court recognizes that aboriginal people do have significant rights,'' Derrickson said. He wants the band's lawyers to examine yesterday's ruling for any application to its case, expected to go to the B.C. Supreme Court next week.

Yesterday's ruling seems to be at odds with earlier high court rulings on inherent aboriginal rights (as opposed to written treaty rights) and could potentially create other conflicts, said Reform aboriginal-affairs critic Mike Scott.

''There has to be consideration for the greater community good and the provincial government's right to regulate resources. There could be problems here,'' Scott said from Toronto.

Some observers speculate that the Supreme Court's decision will lead to refined fishing legislation for Atlantic Canada. Beyond the treaty restriction for Micmacs to earn a ''moderate livelihood,'' the high court theorized about the issuance of ''communal licenses,'' or new limits on the number of fish treaty fishermen could catch to maintain conservation.

Phil Fontaine, national chief of the Assembly of First Nations, applauded the ruling but urged governments not to use the restriction to impose quotas. ''I would hope governments will not attempt to use this restriction to create further hardships on our people,'' Fontaine said in a statement.

While the case holds importance to the government of Canada and the aboriginal community, it is too soon to gauge the impact of the decision, said Michael Pare, the federal government lawyer involved in the case, who was studying the decision yesterday.

Atlantic fishermen who run small operations were disappointed with the ruling, said William Moreira, a Halifax lawyer.

''We think it's going to create more problems than it solves. I'm not sure anyone knows yet exactly what the court has done here,'' said Moreira, who represented the West Nova Fishermen's Coalition in the case, a group of small fishing-vessel operators.

Moreira said the case seemed to present the Department of Fisheries with a new set of standards with which to manage a diminishing resource.

The treaty was established in the 1700s to secure the peace and friendship of the Micmac during potentially troublesome times by allowing the Indians to sustain themselves through fishing, hunting and trading.

''People who trade together do not fight,'' the Supreme Court records state. ''Starvation breeds contempt.'' And the British government of the day did not want the Micmacs to strain the finances of the colony of Nova Scotia, or the purse of the Crown, the court said.

To avoid such a result, it became necessary to protect the tradition Micmac economy and the treaty was the vehicle used.

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{ au: Rick Mofina dt: 09/18/99 sc: gz}