Fishing charges overturned

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Convictions against Donald Marshall, Jr. for illegal fishing were erased when the Supreme Court of Canada rendered its decision on his appeal on Sept. 17.

Since that decision was handed down, East Coast Aboriginal fishermen have taken to the waters to take advantage of their newly-recognized treaty rights, causing a certain amount of consternation in the fishing industry in the region. Native leaders are now meeting with government officials and industry leaders to reassure them that Native fishermen will respect conservation measures.

Five of the seven justices who considered the case agreed that Marshall had a treaty right to do what he was charged with by Department of Fisheries and Oceans officials: catching and selling 210 kg (463 lb) of eels with a prohibited net outside of the fishing season.

Supreme Court Justice Ian Binnie wrote the majority decision for the court.

"The only issue at trial was whether he possessed a treaty right to catch and sell fish under the treaties of 1760-61 that exempted him from compliance with the regulations," Binnie wrote.

In the end, the court decided Marshall did have that right.

While Native leaders in the Maritimes are delighted and National Chief Phil Fontaine applauded the decision, Bruce Wildsmith, the Barss Corner, N. S. lawyer who represented Marshall in front of Canada's court of last resort, cautions the decision is, for the most part, a decision that effects only East Coast Aboriginal people.

"The Marshall decision is based on a series of treaties that were made here," Wildsmith told Windspeaker on Sept. 21. "So, it's pretty hard to say that people who are not beneficiaries of those treaties would have the same rights. I hate to be a wet blanket about that, but I think the reality is that these treaties are unique."

But all Indigenous peoples who signed the 1760-61 treaties have been recognized as having a constitutionally-protected right to fish commercially for, as it was stated in the treaty, "necessaries."

The court interpreted that to mean the treaty allows Aboriginal people to harvest the resource and engage in commercial activity that provides "a moderate livelihood."

"Those treaties are encompassing all of the Mi'kmaq and Maliseet and Passamaquody Indians which would encompass all of the Aboriginal people in all of three provinces and pieces of two others. So it's all of Nova Scotia, New Brunswick and Prince Edward Island, plus the Gaspé area of Quebec and the south coast of Newfoundland," Wildsmith said.

National Chief Fontaine sees a carry-over effect from this decision that will help all First Nations in the country.

"The Supreme Court decision vindicates Donald Marshall and all other First Nations citizens by recognizing what we have said all along: our treaty rights recognize our right to harvest, in this case fishing, and to sell the catch to provide for ourselves and our families. The court has also recognized our oral history which has always claimed the treaties had a wider context than the written word," Fontaine said.

Wildsmith believes the court has added to the body of Aboriginal case law, but he believes his client's people will see most of the benefits of this decision.

"The court did a better job than any other case to this point in time in summing up how you go about the process of interpreting treaties. And, in particular, one of the loose ends that had been left by earlier treaty cases is whether there needs to be some kind of ambiguity in the formal document itself before you can look at surrounding negotiations, discussions and context. They clarified quite directly that there was no problem in the absence of ambiguity to look more broadly to see, for example, if all of the promises had been written into the text," he said.

The court overturned the lower court decision, saying court erred in not allowing extrinsic evidence - evidence which clarifies a contract that is outside of, or not part of, the actual contract. When that contractis an Indian treaty, Wildsmith said, the court ruled the honor of the Crown requires that all evidence that can help in getting the proper interpretation must be considered.

In many ways, the decision is just a beginning for Maritime region First Nations.

"There are a lot of implications that are not quite clear that you need to work out. The way the Mi'kmaq here are reading this, and I think rightly, is that [the treaty right to fish commercially] can serve as a basis to provide a moderate income for the whole nation," Wildsmith said. "So while you can do it for your own family, the band could have it organized in a way or the grand council could have it organized in a way where the benefits went to everybody in the community. It's a communal right and it doesn't necessarily have to be restricted to use for just the individual fisherman."

With all the troubles Maritime region fishermen have experienced in recent years, this decision has many non-Native people worried.

"I think it's fair to say that the decision has caused quite a stir with the Fisheries and Oceans Department and with the provincial governments of Nova Scotia and PEI and New Brunswick," Marshall's lawyer said. "The attorney generals have taken the position that they will respect the treaty in terms of harvesting fish and wildlife for commercial purposes and so there are people out now who are doing that kind of activity. Those non-Aboriginal fishermen who have some interest in it now are raising that concern about conservation and I think the Native leadership and the government people are all saying 'Well, we all understand conservation and we understand the need to respect conservation and we're going to go about this in a way that works it out.' But I think there is liable to be some displacement of some fisheries effort in order to make room for new people in a finite resource."

Chiefs in Nova Scotia met Sept. 21 with the president of Clearwater, the largest lobster company in the world. The ompany and the chiefs have hired a non-Aboriginal facilitation firm to help them in their discussions.

A meeting with the regional director general for Fisheries and Oceans was scheduled to take place that week, after our publication deadline.

Wildsmith sees the possibility that the treaty right could be extended beyond fish and wildlife harvesting.

"One of the big issues is going to be whether it's only a couple of the commercial resource industries that are going to take the hit on this or whether the pain is going to be spread amongst all conceivable resource extractors," he said, when contacted at a hotel in Fredericton, N.B. "The big controversy at the moment is that we have a logging issue going on here, whether Natives can harvest and sell logs, and the same thing is going on in Nova Scotia. The question is, 'is the forest industry part of this or not?' If the forestry industry is, then they would share in the pain, as it were, but they would relieve the pain of the commercial fishermen because the Supreme Court has said you can harvest these things to get a moderate livelihood, so there's a finite amount of income that can be generated this way and the question is, 'is it only going to be one or two kinds of activities that are going to have to generate that much money or can you spread it amongst things like mining, gravel extraction, natural gas, which is big down here, and forestry?' If you can spread it amongst all those industries then it may not be such a big impact on commercial fishermen."

Since there is no appeal of a Supreme Court decision, the economic landscape for First Nations in the Maritimes has been altered forever.

"I would put it this way: I don't think there's another Aboriginal nation across the country that's in as good a position as the Mi'kmaq and Maliseet in terms of having a right to exploit resources for this serious income," Wildsmith said.

He added that only the Stol:o people in British Columbia, who have established a treaty riht to a share of the herring roe and kelp harvest, have similar treaty rights in this area. He particularly pointed out that the Natural Resources Transfer Act of 1930 extinguished all legal hope for prairie region Aboriginal people but then added that the Marshall decision could be raised by prairie leaders in any political discussion aimed at revisiting the issue in Western Canada.

"The only other people that potentially are able to do the same thing are those who have Aboriginal title and, so far, putting aside the ones that have agreements now that have been settled, we're a long way from having Aboriginal title accepted in the areas where there haven't been complete land cessions, such as British Columbia. Delgamuukw didn't resolve that for the Gitxsan people," he added.