What's Next? Burnt Church community savors "victory"

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The members of the Burnt Church First Nation believe they have scored a victory in the battle for recognition of their treaty right to fish.

"I guess the victory, you could say, is we exercised our management plan from start to finish regardless of the amount of coercion or enforcement, if you will, by the federal government," said James Ward, a key figure for Burnt Church during the lobster fight.

With that achievement to buoy the New Brunswick Mi'kmaq community's spirits as winter sets in, Ward said his chief and council need time to reflect and rest after a very tense couple of months. He said the community was under constant stress during the three-month period of its fishing season and now it's time to rest.

But the country is left wondering what happens next, now that the lobster season has come to an end?

"Our fishing season is over. The biggest thing, of course, is the confrontation, and the media would jump on that as much as possible. Once the confrontation is gone, the media's gone," he said. "There's nothing here to pick up in terms of visual images."

Ward wears a lot of hats for his council. He developed and implemented the fishing policy and also headed up security, international affairs and the media. He said it's his impression that the council isn't in a hurry to return to the bargaining table.

"Negotiation I think is going to be much more further away. There was talk about it, trying to open up some dialogue again with Bob Rae," he said. "The problem is, Canada, through DFO, has demonstrated time and time again with us, the idea is not dealing in good faith. When we had the truce back in mid-August, they violated the truce within hours. And then they had the gall to blame it on us. Any time we spoke with them, they did not talk about the key issues that have to be talked about to resolve this issue - the ownership of the natural resource, the fact that we never signed away any resource in any treaty. All our treaties are peace and friendship treaties, they're not land surrender treaties."

As is the case with so many First Nation/federal government negotiations, the negotiators are not empowered to discuss the most contentious issue of jurisdiction. This has left Chief Wilbur Dedam and his council wondering if it's worth the aggravation, Ward said.

"They keep saying, 'That's not in our mandate.' Well, if they can't handle the core issue, why are they addressing the simple little symptoms of the problem?" he said. "Very little headway can be made with the attitudes we've all experienced with the government."

Recently, the province of New Brunswick announced it will lay charges against processing plant owners who purchase lobster from Burnt Church fishermen. Ward isn't overly concerned by the move.

"This comes as no surprise. It's just another tactic. Think about it: If they can't beat us in the water, they want to beat us in the market. No amount of coercion; no amount of force is going to keep us out of the water. We're still going to protect that inherent right. So they're looking for different avenues to shut us down," he said. "There's always buyers. We'll find a way around this. I'm not too concerned."

DFO numbers show the number of pounds of lobster caught in the region has grown tremendously in recent years.

In 1947, 1,285 metric tonnes of lobster were caught in Lobster Fishing Area (LFA) 23, the area that includes Burnt Church. By 1969, the number had dropped to 791. Twelve years later, in 1978, the catch was again up to 1,612 metric tonnes. It grew beyond 2,000 in 1984 and topped 3,000 in 1987. Two years later the catch was at an all time high at 4,528 metric tonnes.

The numbers dropped in 1996 to 3,784 and in the most recent stats (for 1999) were at 3,543 metric tonnes or 7,810,897 pounds. The total lobster catch for the entire Atlantic region is 16,835 metric tonnes or 37,114,441 pounds.

Altogether, there are two million traps licensed in the Atlantic fishery. The federal goverment estimates there may be as many as one million more traps placed in the water by poachers. Those numbers don't include traps set by Native fishermen.

Ward said the numbers reveal that conservation isn't the real reason the Native fishery attracted so much enforcement activity. He said the government could solve all the difficulties encountered as it searches for room to accommodate the Native fishery mandated by the Marshall decision, if it would just do its job in taking action against poachers.

"If DFO had used the same enforcement tactics as they did against us applied to non-Native poachers, they'd be opening up more room for Native fishermen than we actually need. But that would require them to actually work and not protect the non-Native fishery. It's not a question of conservation at all. If it was, then why is the Sierra Club backing up my management plan?" he said.

He believes politics explains the government's actions.

"Traditionally, we're a non-voting population, so they don't have to accommodate us," he said. "The Canadian Alliance is gaining ground out here and the Liberals realize this. So now it's a contest to see who can bash the Natives more to gain votes. I'm keeping an eye on it. However, to be honest with you, it doesn't matter who comes in - Alliance or Liberals. It's just the same government with a different face. We do recognize the Alliance is more of a threat to our inherent rights. The Liberals are less of a threat but, really, it's like choosing between the lesser of two evils."

Burnt Church officials count on more than just the Marshall decision and its recognition of the 1760-61 treaty. There was another treaty, signed in 1779, which promised the Mi'kmaq would be free of molestation by the forces of the Crown.

Ward said Canada can get out of its treaty obligations if it wants to because the Vienna Convention, which Canada ratified in 1970, lays out rules and procedures for breaking international treaties.

"If you want to extnguish the treaties - fine. But do so under international law. The minute you violate a treaty - I believe this is Article 31-1 of the Vienna Convention - then the party that has been violated has the right to suspend the treaty in whole or in part. If you were to suspend the treaty, that means it goes back to the original conditions prior to signing the treaty. That means, for the Mi'kmaq people anyway, that we had clear and inherent right to that resource. That was ours. The ownership of that resource was clearly ours, not the Europeans," he said.

The council won't release its final fishing numbers because, Ward said, the government would use that information to attack the band.

He said he plans to attend the United Nations Human Rights Commission session later this winter but he, like the rest of council, is resting, assessing and planning for next year. He feels things will start to get busy again early in 2001.