The following article appeared in the Ottawa Citizen, September 13, 2000, Page A19
(The editor chose the title, which was originally "Burnt Church and the Future of Canadian Federalism".
"An Act of Defiance"
As we brace ourselves for what seems to be inevitable further violence on the waters near Burnt Church, N.B., we should be asking not just how our government has strayed so far from the Canadian principles of peaceful negotiation, but also why such an historic opportunity is being squandered. For far more than being about the "rule of law" versus "chaos", the Burnt Church lobster dispute is about the very nature of federalism in Canada.
In order to understand why this is so, it is necessary to discard the simplistic and often racist generalisations that have dominated public discussion. We hear about "the Natives" and their ostensibly illegal lobster fishery. Commentators suggest that it is time we revisit the "aboriginal question" in Canada, and extremist politicians dare even talk of abrogating the treaties which recognize the rights of aboriginal groups over natural resources.
Let's be clear about something: Burnt Church is not about "Native rights", but rather about a specific set of treaties, signed, as the Supreme Court of Canada put it, in the spirit of "honour and integrity", between the British Crown and the Mi'kmaq Nation. The Crown of the day did not harbour racist illusions that all aboriginal people on the continent were the same, but recognised that scores of aboriginal nations, more diverse than the nations of Europe, used and occupied the lands of the "New World".
This recognition led to the signing of separate treaties that reflected historical and geographical specificities. In the case of the Treaties of 1760-1, upon which the Supreme Court of Canada's Marshall decision is based, the Crown recognised the political and military power of the Mi'kmaq, which the British desperately needed in order to prevail against the French, and more importantly, conceded what amounted to a limited Mi'kmaq territorial sovereignty in exchange for assistance and co-operation.
The crux of the problem today turns on what amounts to a constitutional error. The British North America Act of 1867, in outlining the architecture of federalism in Canada, failed to take into account the treaties which had been signed with Canada's pre-existing nations. The Act purported to grant the provinces exclusive legislative control over all natural resources except the fisheries, responsibility for which was by default vested with the federal government. Yet the Treaties of 1760-1 had granted a certain measure of control over the use and management of natural resources, both land-based and marine, to the Mi'kmaq Nation, just as other treaties had affirmed the rights of aboriginal nations over resources in their territories. As such, subsequent legislation of the BNA Act was in conflict with these treaties, and therefore the design of federalism was fundamentally flawed.
The Marshall decision recognised two things in particular: first, that every Mi'kmaq citizen has a right to harvest fish for commercial sale; and second, that existing federal fisheries legislation when applied to the Mi'kmaq is illegal.
Furthermore, while conceding a federal right to regulate a Mi'kmaq commercial fishery, the Marshall decision required that any such regulation must be undertaken only after fair negotiations with the Mi'kmaq, and must represent the least intrusive way of infringing on the Mi'kmaq treaty right in pursuit of an overarching policy objective such as conservation.
Yet the Burnt Church lobster fishery is not, as Fisheries Minister Herb Dahliwal asserts, a situation of "chaos" where people are fishing "whenever they want, whatever they want". By contrast, the Mi'kmaq have created the "Esgenoopetitij (Burnt Church) Fishery Act and Management Plan" which DFO scientists have admitted is, from a conservation standpoint, as sound as any existing DFO regulations. Moreover, the 6000 traps proposed by the Mi'kmaq management plan represent only a fraction of the traps licensed to non-Native fishermen in the same area.
So, given the lack of a conservation objective, the DFO has decided to disregard the Supreme Court ruling and proceed with arrests and destruction of Mi'kmaq gear, at great risk to human life. These actions can at best be considered contempt of court. The silence of Prime Minister Jean Chretien on the issue is inexcusable.
When Alliance Leader Stockwell Day speaks flippantly about the unacceptability of "race-based" resource rights, he displays a fundamental ignorance of Canadian law and history, and an unwillingness to contemplate the kind of real "reform" that Canadian federalism requires. This is ironic, for the treaty rights of various aboriginal nations may well provide precisely the impetus required for devolution of federal powers to the community level long envisaged by the Reform-Alliance continuum. When Section 35 of the Constitution Act of 1982 affirmed existing aboriginal treaty rights, it necessitated an eventual re-division of powers under federalism. The recognition of various aboriginal nations' pre-existing rights to resources negates any subsequent assignation of identical powers to the provinces or federal government.
To rectify this, the Supreme Court, or perhaps even the governor-general, must strike down the BNA Act -- now called the Constitution Act of 1867 -- and require the federal government to redesign the constitution in such a way as to recognise that at the federal table there are not just ten provinces, but numerous aboriginal nations as well. We need to reject the Canadian mythology of "two founding peoples" or "four founding provinces" and recognise that the aboriginal nations with whom treaties were concluded are an essential part of the political foundation of Canada. It is time to contemplate a renewed Canadian federalism where there are not ten, but perhaps as many as fifty or more "provinces", including aboriginal nations, and where emerging regional differences within existing provinces are recognised. Certainly this would be an essential step toward safeguarding, for example, the rights of the Cree, Mohawk, Innu, or even the English "minorities" in Québec.
While we are at it, we could also use such a constitutional reconstruction to revisit the question of centralised federal government control over fisheries. It has become almost trite to point out that DFO management, weighted heavily in favour of large, off-shore fisheries corporations, led to the collapse of the Atlantic fishery, and more recently, the precipitous decline of the Pacific salmon. The Esgenoopetitij Fishery Act and Management Plan could easily serve as a model for local resource-use management which would accommodate treaty rights and the demands of inshore fishermen for greater control over their livelihoods.
Such solutions to what is in essence a constitutional morass would be quintessentially Canadian, based as they are on flexibility and accommodation. Instead, we are treated to a reactionary stance by agents of the federal government, replete with speed boats, helicopters, riot gear and firearms. What a squandered opportunity. What a national disgrace.
William Hipwell holds a Social Sciences and Humanities Research Council of Canada Doctoral Fellowship at Carleton University. His research focuses on Mi'kmaq management of natural resources.
Copyright 2000 by William Hipwell
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