Province giving Native fishermen the squeeze

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First Nation fishermen and their non-Native employees are being charged or threatened with charges because the Ontario government's Ministry of Natural Resources (MNR) is operating under a policy that gives enforcement officers too much discretion, provincial NDP leader Howard Hampton said.

A former minister of Natural Resources in the Bob Rae government, Hampton said his party had a different way of doing business that the Dalton McGuinty Liberals could have adopted.

"We had a very clear policy statement with respect to Aboriginal harvest of fish and hunting. I won't say that there was 100 per cent following of that policy statement but there was overwhelming following of that policy statement by conservation officers and by the ministry generally," he said.

"But one of the things that the Conservatives did when they became the government in 1995 is they basically struck that policy statement. They substituted for it a vague statement that said there have been a number of Supreme Court decisions and enforcement officers and ministry personnel should be guided by decisions of the court."

But the problem with that is the court decisions are often very narrow and very specific and open to a number of interpretations, he said, adding that the Liberal government could have chosen the NDP approach or something similar but so far it hasn't.

"So having an enforcement policy that basically says be aware of the court decisions, literally throws the whole area open to individual discretion again. And that's what's happening," he said. "I think it would be a rational expectation that they would look at these court decisions and then use the court decisions to put together a comprehensive enforcement policy so that conservation officers know where they stand. And more importantly, so Aboriginal people know where they stand. And the failure to use those court decisions to then make a policy statement creates these kinds of awkward and, frankly, indefensible scenarios."

Allan Bjornaa is one of the people caught in the middle of this scenario. The son of a Batchewana band member and a non-Native woman, his paternal grandfather is an American Indian who is not recognized by the Canadian government when decisions on status are made. For those reasons, he has been denied Indian status by the department of Indian Affairs and has joined the Ontario Metis Aboriginal Association, although he readily admits he is confused about the definition of Metis. But he knows he is an Aboriginal person, no matter what the government may say.

A few months back, MNR enforcement officials were at odds with the leadership of the Batchewana First Nation over the provincial government's desire to regulate the court-won right of Batchewana members to fish in their traditional waters in Lake Huron.

As with the Marshall decision in the Atlantic region, local non-Native fishermen reacted angrily when a court found that Aboriginal people, by virtue of practices established long before the Europeans arrived, have a legal right to fish that takes precedence over the rights of non-Native fishermen.

Also similar to the reaction to the Marshall decision, the government (this time the province and not the federal Department of Fisheries and Oceans) tried to assert its power to regulate that right and the First Nation leadership resisted. Native leaders in the region say a decision was made by local MNR officials to enforce the letter of the law to apply pressure on Batchewana. Only Batchewana members were allowed to fish. Others-non-Native employees or non-status spouses or children of band members-were threatened with charges if they went out on the water.

One non-Native man has been charged. The case is still before the courts. Others, including Bjornaa, have been threatened with charges.

"Some of my earliest memories are me going out on the boat with my dad. I mean, three, four years old," Bjornaa said. "I graduated high chool when I was 16. I started fishing then. I've been doing it off and on ever since. I just turned 30."

Whether they realize it or not, the provincial officials are relying on federal government behaviour that has been described as arbitrary and discriminatory to justify their actions, Bjornaa said.

"The only reason I'm not Native is because my grandmother's father was from the Bay Mills band in Michigan and the Canadian government wouldn't recognize him as being a Canadian Native.

But they were a border band and they crossed back and forth. There was no border," he said. "The regulation that they put in place against my father's band, it bars them from hiring any non-Batchewana member. So, a member of Garden River First Nation, which is right beside Batchewana, it would be illegal for them to fish on my father's boat.

"They're basically doing this to force Batchewana First Nation into signing some kind of license agreement with MNR. That's what it boils down to. If they have no legal recourse to do it they just use a heavy-handed tactic to force them into it."

The reason the MNR enforcement officers may soon be found by the court to have no legal recourse to regulate Batchewana fishermen is because of the Agawa case. Greg Agawa, a Batchewana member, asserted in court an Aboriginal right to fish and won. Local reaction after the decision was not pleasant: boats were burned and several racist incidents were reported.

"We've already won this fight. The thing is they don't accept treaties. Every time there's a new case they just forget that treaties were written, that court cases were already won," Bjornaa said. "The Natives are always going to win these cases because they're always going to go back to the treaties and we'll always win. But the ministry will take me to court and I'll have to spend hundreds of thousands of dollars defending myself and it's something I know is ridiculous and I'm sure the judges will see it as ridiculous as well. ut it's money out of my pocket."

Since he has Indian ancestry and has been denied status for not being Indian enough by the Indian registrar, the question of blood quantum arises. The concept of determining status by how much Indian blood an individual might have has been described by a Federal Court justice as reminiscent of Nazi Germany. But Bjornaa just talks about feeling he is being discriminated against.

"I cannot find another instance anywhere in Canada where a son cannot work for his father. The MNR has threatened me with criminal charges and has threatened my father with the seizure of his equipment," he said.

"The only thing criminal here is the blatant discrimination the government is showing towards not only Batchewana Band members but proud Metis fisherman as well."

The Grand Chief of the Association of Iroquois and Allied Indians, Chris McCormick, has been up to Batchewana to look into the situation.

"The tactic that they're using is they're arresting deck hands. Anyone who isn't a member of the Batchewana band, they're arresting them. It's come down to the point where one fellow has two sons and all they've done is work for their dad on the boat. They were told by MNR, 'If you work on the boats, you'll be arrested.'

"In another situation, a guy's wife has been told she can't work on the boat," he said. "There's a couple of families where they're married to non-Native women so their children don't have status. What's getting lost in this to some degree is the relentlessness of MNR to force Batchewana to get a fishing license."

He said the fact that a case about the Native right to fish in the region going through the courts now is contrary to basic Canadian legal values.

"You can't retry a case twice. What's really in court is the commercial fishing right again. It seems to me that, in Canada, if you have the right in a democracy, you also have the right to exercise that right. I just think that the government in this case hs really picked a bad example to try to pursue," he said.

McCormick said he addressed a rally in Sault Ste. Marie in support of the Native fishermen.

"When I was talking I was trying to put it into perspective that at one time there were no white people in the area and Batchewana people fished for a livelihood," he said. "The Agawa case didn't give Batchewana people the right to fish; all it did was recognize the right that they have which was given to them by the Creator."