Lawrence Solomon
National Post
October 24, 2000

Two battles are under way at Burnt Church, New Brunswick. One — a skirmish –has been all over the headlines; the other — a revolution — has been entirely ignored.

The skirmish, between natives and white fishermen, is over whether Mi’kmaq bands are entitled to control a small portion of the lobster and other fisheries. Though won last year by the natives at the Supreme Court, this skirmish has simmered ever since because the losers — the white lobster fishermen and the federal government’s Department of Fisheries and Oceans (DFO) — don’t accept the Supreme Court’s decision. The parties may need to go back to the courts for a clarification, but the end result is crystal clear: The natives have constitutionally protected property rights to the fisheries; the non-natives do not. The natives’ superior right to the fisheries will stand.

The revolution, which is being fought among the natives themselves, is over who controls the fishing rights the Supreme Court has decreed belong to the Burnt Church natives. Is it the Burnt Church establishment, headed by Chief Wilbur Dedam, who has operated a patronage regime with the assistance of the federal government? Or is it the young renegades, headed by Lloyd Augustine, Burnt Church’s hereditary chief, who are attempting a radical democratization of the band’s resources? If Mr. Augustine and the revolutionaries have their way, the Burnt Church community will usher in sweeping free market reforms that could spread like wildfire to native communities across the country, profoundly modernizing the native economy and increasing native wealth.

Before the Supreme Court’s decision last September, which decided that all Mi’kmaq were entitled to a moderate income from the land, the Department of Fisheries and Oceans had a cozy arrangement with the leadership of Indian bands. In the case of Burnt Church, for example, the fisheries department provided the band council with 13 lucrative lobster licences, each with the right to set 325 traps. The band council members then distributed those 13 licences to a handful of friends and family members. The rest of the Burnt Church community, many of whom lived in abject poverty, were out of luck.

This type of patronage system typifies life in native bands, which are creatures of the federal government’s Indian Act. The Indian Act chief, as opposed to the hereditary chief, is little more than the federal government’s surrogate. His chief purpose — some say his only purpose — is to administer federal government programs by dispensing federal government spoils. Young natives have been especially critical of the Indian Act system.

After the Supreme Court decided the Mi’kmaq were entitled to earn their living from fishing — not just to fish for food and ceremonial purposes — the young natives had a prize worth fighting for. They set out for sea with a vengeance to claim their long-denied fishing rights from the white man, and they did so brandishing a home-grown fisheries plan designed to break the DFO-backed political patronage system.

Mr. Augustine and his young renegades want all Mi’kmaq – – not just holders of DFO licences — to share equally in the lobster fishery. Their plan entitles every member of the Burnt Church community — each of its 1,400-odd men, women and children — to four lobster traps each. Because four traps per individual, or 16 traps for a family of four, would rarely make business sense, and because many Indians wouldn’t be interested in fishing in any case, Mr. Augustine’s plan calls for the creation of a free market in fishing rights in which Indians would come together to form partnerships or buy and sell lobster traps among themselves, to create logical business units.

“Every family would decide what’s best for itself,” explained Mr. Augustine, who put the plan to depoliticize the fishery to a referendum at Burnt Church. “The vote was 326 in favour of our plan, eight for DFO,” he reports, adding that other Mi’kmaq fishing communities are considering adopting the Burnt Church approach.

In Canada, no individual holds constitutionally protected property rights, a drawback that hurts each citizen’s ability to accumulate wealth and to conduct business confidently, without fear of government interference. The Mi’kmaq could soon prove an exception to this sad state of affairs. The fishing rights the Supreme Court gave to the Mi’kmaq are communal — they belong to the Mi’kmaq as a group, not to individuals. But the Mi’kmaq can convert these constitutionally protected communal property rights into constitutionally protected individual property rights because Canada’s Constitution not only recognizes treaty rights, it also recognizes native law. Mr. Augustine’s plan, if it is adopted by the Mi’kmaq Grand Council, a centuries- old traditional law-making body, would be protected by the Canadian Constitution. That protection would make the Mi’kmaq the only individuals in Canada with property rights that our federal and provincial governments couldn’t rescind, as, for example, the federal government can rescind the licences of white fishermen.

Would the Mi’kmaq Grand Council approve Mr. Augustine’s plan? “It would. No doubt in my mind,” said Alex Denny, a member of the Grand Council. Do the Mi’kmaq favour a market system in which natives can trade their fishing entitlement? “This is what you need,” states Mr. Denny, who as a Mi’kmaq Grand Captain is near the top of this First Nation’s traditional hierarchy. “We have to be able to trade with whoever gives us the best deal, for the best advantage.”

Would the Assembly of First Nations, Canada’s national Indian body, accept policies that promote individual property rights and free markets? “We support whatever position a First Nation community chooses,” states Jean LaRose, the Assembly of First Nations’ Acting Communications Director. “If the Mi’kmaq, or any other First Nation, adopts a market-oriented approach, it would have the full support of the AFN.”

Strong, tradeable property rights in fishing can be a powerful economic and environmental force, as shown by the experience in New Zealand, Australia and Iceland, jurisdictions that have adopted them. Because fishermen there don’t fear that others will plunder the seas if they don’t plunder them first, fish stocks have soared, and fishermen who hold individual property rights in fish have become wealthy. Wealth has also started to come to New Zealand’s natives, the Maori, following treaty settlements in the late 1980s and early 1990s that gave them 10% of some fish species and 20% of the others. The Maoris — through tribes, through corporations and as individuals — soon began buying out white fishermen’s rights on the open market, and now control 57% of the country’s fisheries, as well as New Zealand’s largest fish processing company. Although Maoris are less affluent than New Zealand’s non- natives, the average wealth of the Maori has risen dramatically over the past decade.

In Canada, the Assembly of First Nations sees similar entrepreneurial potential. The AFN takes pride in the business prowess of Indian youth who, unlike Indians older than 30, are likelier to start their own businesses than non- natives. To encourage what it sees as an important and encouraging trend, the AFN formally began promoting youth entrepreneurship two years ago. “We want to start with the young to promote a class of adult entrepreneurs,” explained Bradford Kelly, an AFN policy officer.

More entrepreneurship, and less government dependence, suits the East Coast Mi’kmaq just fine. “Government money is fool’s gold,” says Mr. Denny, who is frustrated by a federal government bent on maintaining control over its citizens. The government insists on meddling in the affairs of others, thinks it knows how to pick winners, and refuses to let the entrepreneurial talents of its people thrive. “You’d think that government, especially here in Cape Breton, would learn from the steel plant,” he says.

Soon, all Canadians may learn from the natives. In New Zealand, because the Maoris so rigorously and so successfully pressed their case for strong property rights, the government ultimately decided to level the playing field by strengthening the property rights of non-natives, too. Canada’s white fishermen — indeed, all of us — may demand strong individual property rights once Canada’s natives secure them. As in New Zealand, Canada’s First Nations may in the end bring the white man back to that most important of first principles: property rights.