Lobster dispute still simmering

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A dispute over the treaty right to fish that culminated in the ramming of a Mi'kmaq boat by federal fisheries officers and the seizing of hundreds of Mi'kmaq lobster traps this fall is not over but it may be on hold for the winter. The people of Burnt Church First Nation near Miramichi, N.B. declared their lobster season over in early October when bad weather set in.

The fight is seen as a pivotal battle in the war to protect gains made by Aboriginal people through a succession of court cases that stretches back more than 10 years. Native leaders complain that federal and provincial politicians refuse to respond to the changes in the law mandated by the high court decisions because they fear a political backlash.

Twenty lawyers with extensive experience in Aboriginal law in Canada signed their names to a press release on Sept. 7 which stated that the Department of Fisheries and Oceans' position on the Indigenous lobster fishery is dead wrong.

"The Department of Fisheries and Oceans acts as if it has an absolute right to regulate the treaty fishery in Atlantic Canada," the release states. "In fact, the department has a limited ability to regulate the treaty fishery. In order for it to exercise that function, it must meet specific criteria."

The lawyers go on to say that they've seen nothing to convince them the minister has met those criteria.

Quoting from Marshall Two, the Supreme Court's highly unusual clarification of its original Marshall decision, the lawyers say that the government can only limit treaty rights if there are pressing and substantial public needs. And even then, the government is required to consult the Aboriginal people involved.

Even government employees in other departments are critical of DFO's position on this issue. Bill Montour, the Indian and Northern Affairs regional director general for the Atlantic region, told this reporter that the striking down of one line of the Indian Act in the Corbiere decision has created a huge work-load for his department. He said DFO has done little or nothing to react to the Marshall decision, a much more detailed and far-reaching decision.

Lawrence Solomon, executive director of Urban Renaissance Institute, a division of Energy Probe Research Foundation, specializes in examining resource issues from an environmentalist point of view. He agrees with the lawyers that DFO is not acting according to the law of the land.

"I read the court decision," he said. "What struck me about the support that the non-Natives are getting is that it's all based on the notion that the govnernment has the right to regulate. The Marshall decision was, I thought, fairly clear that that right is subject to various conditions and those conditions just aren't being met."

He is convinced that, with an election expected to be called this month, the politics of patronage is behind the otherwise confusing actions of the federal government.

"The government clearly is concerned abut losing Atlantic Canada and wants to regain seats that it lost. The employment insurance clawbacks have been in the news . . . regaining seats is very important in the Liberals' plans and I think it would be very difficult politically for them to do anything to offend the white vote," he said on Sept. 26.

The very next day, the Liberal government announced it would change the employment insurance system by eliminating changes introduced in 1997 that reduced benefits for repeat users and clawed back benefits from those who earned more than $39,000.

When Minister Herb Dhaliwal claims he's ordering the enforcement measures against the Mi'kmaq for conservation reasons, Solomon doesn't believe him.

"Really, DFO really hasn't been that interested in conservation. It really runs the department for political purposes," he said.

In fact, when he was asked whether there was a threat to the lobster stocks, he said yes, but not the way the minister is portraying it.

"I think there's definitely a threat to the stocks," he sid. "The threat is primarily coming from the non-Native fishermen who are putting pressure on DFO - and usually being very successful - pressure to keep up the rate of harvesting.

John Paul, 33, is a member of the Burnt Church First Nation. He is in the final year of undergraduate studies in Native studies and criminology at Fredericton's St. Thomas University.

Paul volunteered as a fisheries officer for his band this summer before embarking on a speaking tour on behalf of his chief and council in Calgary the last week in September.

After almost 80 per cent of his community voted to follow their own Esgenoopetij First Nation fisheries policy rather than the DFO policy, he volunteered and worked with the Lustiguj Rangers, First Nation fisheries officers who have been trained to perform the same function as DFO officers.

During his second shift on the water in late August, Paul was on the first Mi'kmaq boat to be rammed by DFO officers.

He also believes that his people are being sacrificed by the government and the non-Native fishermen, who aren't being honest about their true motivations.

"DFO offered the union fishermen $10,000 to 12,000 apiece just to stay off the water," he said. "That tells me two things: Number 1 is, you're not in there just to get Natives out of the water; Number 2, you've got enough money to turn down $12,000. In a province like New Brunswick?"

The issue of the number of traps is one that the band appeared to try to get an independent observer to verify. Chief Wilbur Dedam tried to convince DFO to hold off on the threat to remove the traps by arranging for neutral third parties to count the traps. Before the count could be completed, DFO began its enforcement action.

The number of traps DFO has since claimed to have siezed creates the impression the Mi'kmaq were fishing irresponsibly, but Dedam and his council say the numbers are unreliable.

On Sept. 8, the Atlantic chiefs moved their policy conference from Halifax to Burnt Church to show ther support for the lobster fishermen. The chiefs unanimously supported Dedam and his community in their stand and, Paul said, the community is almost unanimous in its support for the chief and council.