Micmacs hail supreme court victory

KELLY TOUGHILL and VALERIE LAWTON
The Toronto Star
Saturday, September 18, 1999

STAFF REPORTERS

Jubilant Micmac chiefs yesterday hailed a Supreme Court decision on native rights, saying it will end poverty on reserves across Atlantic Canada.

''We no longer want Micmac people to go hungry,'' said Chief Terrance Paul, of Nova Scotia's Membertou reserve.

''As of today, there is no more hunger and no more dependence.''

The decision recognizes the right of Micmac people to fish without a licence not only for food and ceremonial purposes, but to sell their catch to make a living.

The court case centred on a six-year-battle with Donald Marshall Jr., a Micmac from Cape Breton who was charged with three federal fishery offences after he caught and sold 210 kilograms of eel in 1993.

It is the second time Marshall has gone to the Supreme Court - the first time in connection with a wrongful conviction that saw him spend 11 years in prison for a crime he didn't commit.

''I'm going to give myself a pat on the back,'' he said yesterday at an emotional press conference.

''I am a Micmac man, a proud Micmac man and I have dealt with the Supreme Court twice already. I just hope to God I don't have to do it again. I'm just glad it's over.''

In a 5-2 decision, the Supreme Court agreed a 1760 treaty gives Micmacs hunting, fishing and gathering rights, as well as the right to trade for their day-to-day needs.

The ruling, with Justice Ian Binnie writing for the majority, does allow for some restrictions. The right to collect eels, fish or hunt is limited to what's needed to provide Micmacs with a livelihood.

''A moderate livelihood includes such basics as food, clothing and housing, supplemented by a few amenities, but not the accumulation of wealth,'' Binnie wrote. ''It addresses day-to-day needs. This was the common intention in 1760. It is fair that it be given this interpretation today.''

Binnie said the treaty right in the Marshall case does not mean Micmacs can use a factory trawler to scoop up the available harvest of eels in Pomquet Harbour at the expense of non-aboriginal commercial or recreational fishermen.

But Micmac leaders were quick to reject any suggestion the limits be anything less than those given non-native fishermen.

''If some fisherman gets 300,000 pounds of snowcrab, then we expect to get that quota for every single Micmac person,'' said Bernd Christmas, a negotiator with the Union of Nova Scotia Indians.

Most reserves in Atlantic Canada are desperately poor, with chronic housing shortages and an unemployment rate of more than 80 per cent.

''The resources and the wherewithal to alleviate that problem is being delivered in the hands of the chiefs today,'' said lawyer Bruce Wildsmith, who represents the Union of Nova Scotia Indians.

Federal and provincial officials said it will take time to analyze what impact the decision will have, but some said the livelihood of non-native fishermen must also be protected.

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{ au: Kelly Toughill and Valerie Lawton dt: 09/18/99 sc: tstar}