Jay Lugar
National Post
November 7, 2000

In two recent pieces, on Oct. 10 and Oct. 24, this page provided Lawrence Solomon an open forum to espouse his views on integrating aboriginal Canadians into the Atlantic fishery. However, his intent is to use native access to turn fishery management upside down by prescribing a property rights solution to the current native fishing rights issue. While the Supreme Court of Canada has affirmed and described the nature of aboriginal and treaty rights in various decisions since the inclusion of Section 35 (1) in the Constitution Act of 1982, it has not granted property rights to aboriginal Canadians. Mr. Solomon’s suggested course of action for “white” fishermen to seek property rights in the lobster fishery is unnecessary, and would compound an already complicated situation.

By reaffirming that all fishing in Canada must be authorized under the Fisheries Act, and thus be regulated by the Department of Fisheries and Oceans (DFO), the Supreme Court in its Nov. 17, 1999, decision implicitly denied natives a property right to the fishery. Fisheries resources in Canada are common property. The Minister provides access through his discretionary power over licensing. Section 35 (1) removed the Minister’s discretion related to aboriginal Canadians in some, but not all, native fisheries. The Minister must provide access to native bands for their aboriginal right to access a particular fishery that is integral to the band’s culture. The Minister must also provide access to Mi’kmaq bands under their treaty right to traditional fisheries once the right is in fact established by a band, subject to infringements and limitations. Neither of these forms of access constitutes a property right, because the ownership of the resource has not changed. It remains common property. Right of access under specific circumstances — yes; property rights under Canadian law — no. Besides, conservation requirements could ultimately eliminate without compensation both forms of access enjoyed by natives. Such a principle is hardly consistent with property rights.

The way forward is not for “white” fishermen to claim property rights, but for these non-aboriginal and non-treaty right fishermen to work with government and the natives to achieve a reasonable interpretation of the various Supreme Court decisions pertaining to Section 35 (1). Though these fishermen have largely been shut out of the DFO-imposed process for “negotiating” with natives over interim access (a process that favours accommodation), there is no reason to exclude them in the next process. The Supreme Court has provided a framework for such a process:

1. Aboriginal rights affirmed by Section 35 (1) pertaining to the fishery provide access for food, ceremonial and societal purposes and are specifically not commercial rights.

2. Aboriginal rights relate to practices that existed at the time of first contact between natives and Europeans in each band’s circumstance, are specific to the native band making the claim, must be integral to the culture of the band and are subject to conservation requirements.

3. Treaty rights for Mi’kmaq bands are confirmed in the two Marshall decisions of 1999, though the specific entitlement of each band remains to be established.

4. Treaty right access to the fishery is a communal right assigned by a band to individual native fishermen to earn a “moderate livelihood” for their families. Access is limited to the band’s “traditional hunting and fishing grounds” at the time of the treaty, the onus being placed on each band to identify and prove these grounds. Treaty rights are commercial rights.

5. Treaty rights can be limited or, to be precise, infringed upon by DFO on grounds of substantial policy objectives such as conservation, local and regional economic fairness and historical reliance upon the fishery by non-aboriginal groups.

A transparent process that includes natives, governments and other stakeholders, follows evidentiary and procedural rules, and provides for impartial and competent recommendations, just as the Court has implied, needs to start now. Anything less will eventually require the attention of courts over the next few decades to specifically decide correct access for each band — obviously not a practical solution. To proceed with another round of DFO’s interim agreements will only serve to raise expectations of increased access without any definition of the treaty right, and will not resolve the ultimate questions that have caused confrontations on Maritime waters.

Once the level of access for natives has been properly established, the method they use to divvy up their access is up to them. Mr. Solomon’s favoured approach of establishing individual business units to trade access among themselves may or may not work, but the decision is ultimately the band’s. What is important, however, is that there must be only one management and conservation regime in the Canadian fishery. This regime must bring all stakeholders in each fishery together, regardless of the source of their access, to manage their fishery under DFO’s authority so as to maximize the economic benefit from that fishery for all Canadians. A separately managed fishery based on racially derived access will forever prevent reconciliation and integration, two goals of section 35 (1) of the Constitution Act accepted by all Canadians, including the judges of the Supreme Court.

So, with due respect to Mr. Solomon, there is no need to turn existing fisheries law on its ear by pushing a property rights solution (though some sectors of the commercial fishery may in fact support such a management regime for other reasons). Maritime fishermen can, will and do accept a reasonable level of access for native bands, as long as that access has been determined according to a process that respects the Marshall decisions. The confrontations and violence this past summer in Burnt Church and elsewhere demonstrate the need for such a process all too well.