Paul Barnsley
Windspeaker
October 1, 2000

Mi’kmaq lobster fishers are finding themselves in hot water for doing the same thing that the Supreme Court of Canada acquitted Donald Marshall, Jr. of doing a year ago.

After several weeks of mounting tensions in Atlantic Canada after Mi’kmaq fishers began their season in August, things began to heat up in earnest on the morning of Sept. 23 as a deadline imposed by federal Fisheries and Oceans Minister Herb Dhaliwal came and went. DFO officers then began removing traps, prompting a response from Mi’kmaq fishers when DFO officers moved in close to shore on Sept. 26. The federal officers retreated, rather than force a showdown, and at press time on Sept. 27, there was an uneasy standoff in progress.

In the days leading up to the deadline, Native leaders from all parts of the country descended on the northeastern New Brunswick reserve located a half-hour’s drive east of Miramichi to show their support. 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.

Non-Native fishers did not distinguish themselves with their actions in the days immediately before and after the deadline. Newspapers regularly carried stories with quotes containing obscenity-laden threats delivered by individuals who felt their livelihood had been threatened.

And three non-Native people in a boat were arrested on Sept. 22 after shots were fired on the waters off the Burnt Church wharf. Liquor and drugs were seized and police reported the three men were intoxicated. One man was later charged.

But the root cause of this confrontation, one that has the potential to turn into a clash that could rival the confrontation at Oka, Que. in 1990, is too complex for those without advanced degrees in constitutional law to solve in a reasonable fashion. Government officials, who have that kind of expertise, or at least have access to those who do, haven’t made things any calmer with their actions.

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

Marshall Two is widely seen as the high court bowing to political pressure. It was issued after violence occurred between Native and non-Native fishers off the Burnt Church wharf on Oct. 3, 1999 and there was widespread anger prompted by the original court decision recognizing the Mi’kmaq’s treaty right to fish. Lawyer Bruce Wildsmith, one of the 20 lawyers who signed the release, represented the Indian Brook First Nation in Federal Court as the band tried to convince the court to issue an injunction prohibiting the DFO’s enforcement measures against Indian Brook lobster fishers. In court, Wildsmith pointed out that, according to the clarification of the Supreme Court’s decision to overturn fishing charges against Donald Marshall, Jr., Marshall was actually guilty. That leads to the almost farcical situation where the clarification of their decision actually contradicts the original decision even though the court refused to overturn the original decision.

“This is something the Supreme Court of Canada came up with on its own,” Wildsmith told Mr. Justice Denis Pelletier in Halifax Federal Court on Sept. 7. “The Supreme Court of Canada is wrong on this one.”

“It’s one thing for them to say they made a mistake,” Judge Pelletier replied, smiling. “It’s another for me to say they made a mistake.”

But the Federal Court justice did not disagree with Wildsmith. He eventually ruled he couldn’t grant the request for an injunction because he would then be deciding the question of rights without hearing full evidence and argument.

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 Windspeaker 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.

A Toronto researcher penned an opinion piece for the Financial Post that appeared on Sept. 26. 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 put forth the theory that the government’s actions can be easily understood if you have a solid understanding of the political forces at work in Atlantic Canada.

Solomon 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 government 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 as early as November, the politics of patronage is behind the otherwise confusing actions of the federal government.

“The government clearly is concerned about losing Atlantic Canada and wants to regain seats that it lost. The employment insurance clawbacks have been in the news, have been front page news in Toronto, and that’s because Chretien wants to go back to the previous regime that didn’t claw back as much. 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.

On that same day, the Liberal government announced it would change the employment insurance system by eliminating changes introduced in 1997 that reduced benefits for repeat users – seasonal workers like fishers.

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 told Windspeaker.

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 said. “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.

In his piece for the Financial Post, Solomon detailed enforcement regimes in place in other countries and concluded the DFO was doing the worst job possible of conserving lobster stocks. He maintains that using the right to fish as a way to generate political capital is dangerous and has already been shown to be ineffectual in protecting cod and salmon stocks. He said that if fishers were given control of a specific area, they wouldn’t be out in the water grabbing every lobster they could get before another fisher beat them to it.

“The best regulatory regime would be to give people secure rights to their fisheries and then you wouldn’t need this kind of regulation,” he said. “You wouldn’t have governments making trade-offs between how much and how far can we push the fishery to create jobs before we take too big a risk. The people in charge of the fishery would be making those kinds of decision and they would tend to be very conservative, they wouldn’t want to take risks because it would be their livelihood. The more local, the better, and even at the individual level.

“The ideal situation would be for DFO to step out of the picture, to give non-Natives as well as Natives all the rights – hand them over. Then there won’t be any need to regulate them because they’d do a much better job than DFO would.”

When the government announced it would undo the 1997 cuts to employment insurance benefits to fishers, the Opposition howled that the Liberals were buying votes in Atlantic Canada. Solomon agrees.

“It’s one factor. The communities that fish, they get their livelihood from fishing, as well as employment insurance. The votes are concentrated. So there are quite a few ridings that would go one way or another depending on how the fishing communities viewed the Chretien policies. The tail often wags the dog in politics. Just a few seats, because those seats are swing seats, the government may want to keep them happy.”

He believed the fisheries minister was caught in a political trap and acted in a way that would cost his party the least, even if it meant sacrificing the rights of Native people.

“I think that what Dhaliwal was facing was a lot of bloodshed. I think he recognized the fishermen’s union was capable of a lot of violence. He felt he had to take control,” he said. “He didn’t want to bring in the troops to control the white fishermen but he could appear as a strongman to them by suppressing the Natives and basically pacifying the white fishermen. That’s the effect of what he’s done. He’s wanted to show that he’s in charge in order that the non- Native fishermen didn’t take the law into their own hands any more than they did. It’s sort of a backwards way of preventing bloodshed.”

John Paul, 33, is a member of the Burnt Church First Nation. He is in the final year of his undergraduate studies in Native studies and criminology at Fredericton’s St. Thomas University, a two-hour drive from his home territory.

Paul spent some time volunteering as a fisheries officer for his band this summer before embarking on a speaking tour on behalf of his chief and council. He was 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 fishers, who aren’t being honest about their true motivations.

“DFO offered the union fishermen $10- to 12-thousand 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?”

He was asked if fear was the predominant emotion in his community as they realize the forces they’re up against. He said the time for being afraid was long past.

“It’s anger. I hear them saying 10,000 traps, 4,000 traps. Get it right! It’s gone beyond feeling like, ‘gee, what are we gonna do.’ It’s gone beyond that. They’ve pushed so much that nobody’s feeling sympathetic for anything any more. I’m not going to say I’m speaking for everybody but I’m speaking for a good majority of my community,” he said.

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 seized creates the impression the Mi’kmaq were fishing irresponsibly, but Dedam and his council say the numbers are unreliable. Union of British Columbia Indian Chiefs president Stewart Phillip, who was in Burnt Church in late September, accused DFO of fudging the numbers, saying it’s a wellknown tactic employed by the government in West Coast fisheries.

On Sept. 8, the Atlantic chiefs moved their policy conference from Halifax to Burnt Church to show their support for the lobster fishers.

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.

“They are now,” he said. “It was questionable at first because we didn’t know where he was going, but when he got a hold of James Ward, that’s what pulled in his strong back-up. The people are backing him. The council came together and said, ‘We’ve got to fight it. That’s all there is to it.’ There was two or three against it but the majority spoke. We had councillors on the water and that was impressive.”