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The Marshall Decision & The
Atlantic First Nations Fishery Myth & Reality
December
13, 2000 Myth: The
Mi¹kmaq, Maliseet and Passamaquoddy have little regard for conservation of
the fishery resource. Reality: Conservation
of the fishery and other resources has always been a primary concern for
First Nations people. Policies recognizing conservation as the number one
priority have been approved by the Mi¹kmaq, Maliseet and Passamaquoddy
Chiefs and efforts are under way to enhance and develop management capacity
within individual First Nations. Myth: Any
Mi¹kmaq, Maliseet and Passamaquoddy fishery activity not regulated
by Ottawa will be unstructured and chaotic. Since
the Marshall decision, Mi¹kmaq, Maliseet and Passamaquoddy communities
such as Burnt Church, Indian Brook and Acadia have been harvesting under
community management plans designed to be respectful of the resource and
other user groups. Myth: The
Mi¹kmaq, Maliseet and Passamaquoddy have little respect for the rule of
law. Reality: The
Mi¹kmaq, Maliseet and Passamaquoddy have always had respect for the rule
of law. Atlantic First Nations struggle with an average of 80-90%
unemployment and despite the validity of their treaty arguments, they waited
for vindication from the Supreme Court of Canada. Myth: The
Marshall decision is being implemented through interim fishing agreements. Reality: The
interim fishing agreements between Canada and most of the Mi¹kmaq,
Maliseet and Passamaquoddy First Nations are designed to provide access but
do not address the larger issues of treaty implementation and other issues
of self-determination stemming from the Marshall decision such as ensuring a
³moderate livelihood² for all Mi¹kmaq, Maliseet and
Passamaquoddy, ³treaty beneficiaries², self-regulation and the role of
the Atlantic First Nations in the overall management of the Atlantic
fishery. All interim fishing agreements are ³without prejudice² to
aboriginal and treaty rights. Myth: Aboriginal
and treaty rights recognized by the courts and protected by the Constitution
can be restricted by acts of Parliament. Reality: Contrary
to the election platform of the Canadian Alliance, aboriginal and
treaty rights are protected by section 35.(1) of the Constitution Act,
1982 which means that they can not be overridden by acts of Parliament
unless they meet the justification standards for infringement laid out by
the Supreme Court of Canada. Myth: The
Marshall decision is limited to eels. Reality: While
the facts set out in the Marshall decision involve only eels, the decision
upheld a general treaty right to fish and trade for limited commercial
purposes. There was no mention within the treaty upheld, the Treaty of
1760-61, or the decision itself that the right recognized was limited to one
species. Myth: The
Mi¹kmaq, Maliseet and Passamaquoddy are not concerned with the fate of
non-Native fishing communities. Reality: Since
the Marshall decision, the Mi¹kmaq, Maliseet and Passamaquoddy have sought
solutions such as reduced allocations (as opposed to buyouts) that would
minimize the impacts of the increased First Nations access on non-Native
fishing communities. While reduced allocations may impact slightly upon
individual fishermen¹s incomes, their overall impact upon coastal
communities would be minimal. This position was put forward in the response
of the Atlantic Policy Congress of First Nation Chiefs to the Report of
the Parliamentary Standing Committee on Fisheries on the Marshall
decision. The Parliamentary Standing Committee advocated buyouts a means to
provide access to the Mi¹kmaq, Maliseet and Passamaquoddy while the
Mi¹kmaq, Maliseet and Passamaquoddy favored reduced allocations.
Myth: The
so-called ³clarification² or ³Marshall II² recognized the Fisheries
Minister¹s absolute right to regulate the ³treaty fishery². Reality: Just as the scope of the treaty rights recognized in Marshall remain undefined, so too is the scope of the Minister¹s right to regulate. The Mi¹kmaq, Maliseet and Passamaquoddy do not believe that the Minister¹s power to regulate is absolute. It is worth noting exactly what the Supreme Court said in Marshall II: ³The
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. If the Crown establishes that the
limitations on the treaty right are imposed for a pressing and substantial
public purpose, after appropriate consultation with the aboriginal
community, and go no further than is required, the same techniques of
resource conservation and management as are used to control the non-native
fishery may be held to be justified. Equally, however, the concerns
and proposals of the native communities must be taken into account, and this
might lead to different techniques of conservation and management in respect
of the exercise of the treaty right.² In
addition to the pronouncements of the Supreme Court on this point, the
Mi¹kmaq, Maliseet and Passamaquoddy also believe that the issue of
self-regulation stems from the right of self-determination.
Myth: In
rejecting the request for a re-hearing of the Marshall case by the West
Nova Fishermen¹s Association, the Supreme Court of Canada
³clarified² the original Marshall decision. Reality: There
are several aspects of Marshall II (also improperly characterized
as ³the Clarification²) which are troubling to the Mi¹kmaq, Maliseet
and Passamaquoddy. First, the original decision was five to two in
favour of Donald Marshall Jr. but it was the dissenters who went on
to ³clarify² what the majority meant in the original decision. Second,
in characterizing the ³local nature² of the recognized Mi¹kmaq, Maliseet
and Passamaquoddy treaty rights (i.e. their limited application to
immediate vicinities), the court established a principle which, had
it been in the original decision, would have meant that Donald Marshall
Jr. would have been convicted. Marshall is a member of the Membertou
band in Sydney, N.S. but was exercising his treaty right in Pomquet
Harbour near Antigonish, N.S.. Finally, it appears as if the rule
of law was sacrificed for the will of vocal segments of the general
population who were not satisfied with the original decision. This,
we believe, should be troubling to every Canadian because it says
that the Supreme Court of Canada is willing to modify or mitigate
decisions involving constitutional rights if the backlash is too strong. |