Worth repeating Marshall ruling now means negotiation

The Toronto Star
Monday, September 27, 1999

By the year 1760, when the British and Mi'kmaq signed the treaty at issue in Friday's landmark Marshall ruling, the Mi'kmaq had been trading with Europeans for more than two centuries. The British were ending years of warfare against the nation, which had been allied with the French.

With that history in mind, Mr. Justice Ian Binnie observed that the Treaty of 1760 was written for reasons of ''reconciliation and mutual advantage.''

The great challenge urgently before native leaders, the provincial government and federal regulators is to arrive at negotiated agreements in the same spirit.

The Marshall ruling will forever change natural resources management in the Maritimes. The Supreme Court's 1990 Sparrow decision had already affirmed the aboriginal right to a food fishery - the Marshall ruling affirms a treaty right - the difference is crucial - by which natives can sell what they hunt or fish.

The difference is that treaty rights are subject to regulations drafted with them in mind. The ruling says the treaty right is limited to securing a moderate livelihood.

There's considerable and justifiable confusion and concern right now over the ruling's precise implications, particularly for conservation of vulnerable species. Who will be considered a native? What's a moderate livelihood - and who decides? What seasons and catch limits will be imposed? Will Ottawa reconsider its support of some natives who obtain modern ''necessaries'' by other means?

What happens now is crucial - to the survival of entire species, and to harmonious native/non-native relations. New Brunswick Justice Minister Brad Green has said he is looking forward to negotiating an agreement with native representatives.

The party that will sit across the table is preparing. Maliseet and Mi'kmaq chiefs from across eastern Canada met last week at the Tobique reserve to work on a strategy to take full advantage of the ruling.

Negotiated agreements that recognize conservation are an urgent priority. And while it may be hard for some non-natives to see how the advantages of such negotiations would be ''mutual,'' rather than non-natives simply losing access to a resource, the disadvantages of not negotiating very quickly and in good faith would most certainly be mutual.

This is an excerpt from the Times Globe, Saint John, N.B.

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