Urban Renaissance Institute

Karen Selick
National Post
October 23, 2000

I agree wholeheartedly with Larry Solomon’s contention (Property Rights for White Fishermen Too, Oct. 10) that property rights for fishermen of all races would solve the lobster fishery problem and that we should badger our politicians into recognizing this.

However, I think Mr. Solomon is stretching a point when he says the R. v. Marshall decision recognized property rights for natives. I suspect the Supreme Court of Canada would agree. Nowhere in its original judgment or the sequel does the phrase “property rights” appear. Whatever it is that the court granted, native fishermen can’t sell it to non-natives or even apparently trade it among themselves. The court was quite explicit that they can’t use it to accumulate wealth. The court had earlier made clear in the Delgamuukw case regarding aboriginal land titles that it expects natives to hold property communally.

All the native fishermen really have is a race-based right to extract resources from a commons. If the natives were like the Borg of Star Trek fame — a single, collective mind in many discrete bodies — perhaps this could reasonably be called a property right. However, like other humans, the natives are individuals with separate minds and bank accounts.

If we ever hope to enact a workable system of property rights for everyone, we shouldn’t dignify the mandatory collectivism that has been thrust upon them with the label “property right.”

Karen Selick, Belleville, Ont.

Lawrence Solomon
National Post
October 10, 2000

Yo, you white Maritime lobster fishermen, get over it! The natives won; you lost. “A deal is a deal,” the Supreme Court stated last September. The Mi’kmaq have first dibs on the fishery; you get to divvy up most of what’s left.

When you went back to the Supreme Court to overturn this “injustice,” as you called it, the Supreme Court slapped you down good. Through your lawyer you told them — as if you had any rights in the matter — that the natives should not be able “to involuntarily displace any non-aboriginal existing participant in any commercial fishery.” You told them the courts should not be able to decide “who shall and shall not have access to the commercial fisheries.” You told them aboriginal rights should be denied if they disrupted your way of life, as if your way counted as much as theirs.

It doesn’t. Listen up, it’s not hard to understand. They have property rights. You don’t. End of story.

No matter how much you threaten the government, no matter how much that non-native, Dhaliwal, at the Department of Fisheries and Oceans, postures about reeling in the Burnt Church natives, nothing changes the fact it is they who have the law on their side. You don’t, and neither does that Dhaliwal, even if he is the biggest fish at DFO, even if he is a member of the federal Cabinet.

Natives have property rights because their leaders fought for property rights, and Pierre Elliot Trudeau, then the prime minister, agreed to put them into the 1982 Constitution. You don’t have property rights because your leaders fought against property rights, and Mr. Trudeau left them out. It didn’t sit well with Maritime premiers in lobster provinces — that’s PEI and New Brunswick — to have to fork over compensation whenever they decided to take your property. The upshot? You white fishermen truly are second-class citizens in your own country. You truly do have fewer rights to earn a living in your chosen occupation than do natives. But your gripe isn’t with the justices on the Supreme Court of Canada, who are doing their job to the best of their ability. Your gripe isn’t with the native leaders, who 20 years ago did their job for their native constituents. Your gripe is with your own leaders, who 20 years ago decided you weren’t entitled to any property they couldn’t easily reclaim, rearrange or confiscate.

In the past, violence has stood you in good stead. In the early 1980s, when DFO cracked down on illegal fishing by white fishermen in Nova Scotia, some of you commandeered two patrol boats and, to make sure they wouldn’t interfere with you again, torched them. It was a winning strategy. The judge let them off easy and gave DFO a dressing down. DFO hasn’t bothered you since. The strategy worked last fall, too, after the Marshall decision came down. That three-day rampage against natives and those who did business with them, causing $250,000 in property damage, drew a reprimand and $400 fines from another local judge. And it convinced that Dhaliwal that the rivers would run red if he didn’t act decisively. Controlling you — with your history of violence — required more courage than he had. Much easier to appease you by coming down hard on the natives, who had broken no laws, and concocting some phoney claims about conserving lobster stocks.

But violence won’t work with the natives. They have too much at stake, and they aren’t going away. Why should they? The Supreme Court already explained — unanimously in its November judgment — that the arguments made by the fishermen won’t hold water. “This is not a legal principle,” the court said, after hearing your lawyer’s claim that non-natives had entitlements that overrode treaty obligations. “It is a political argument. What is more, it is a political argument that was expressly rejected by the political leadership, when it decided to [affirm aboriginal rights] in the Constitution Act, 1982.” The natives also know the Supreme Court has repeatedly made it clear it will support natives in disputes involving questionable interpretations. It does so, it says, because the Crown had drawn up the treaties after natives and the Crown made oral agreements. To interpret a treaty that the Crown had written up contrary to the oral terms would offend “the honour and the dignity of the Crown.”

The odds are stacked against you, and also against non- natives in other occupations. More native rights cases are in the lower courts, wending their way to the Supreme Court, dealing not only with fisheries but with timber and other resources. Get ready to lose those, too — unless you change tack.

Here’s a plan. Don’t argue that natives aren’t entitled to their rights. That will get you nowhere. Instead, argue that you’re entitled to constitutionally protected property rights, too. Last week, Stockwell Day made property rights an election issue when he said he wants to strengthen property rights for natives. Tell Stock: “What about property rights for the rest of us?” Tell that to Jean Chr‚tien, too. Why shouldn’t we all — regardless of race — be first-class citizens in our own country?

Herb Dhaliwal, G. Campbell McDonald, and Gerald Woods
National Post
October 3, 2000

May I provide some facts relating to your editorial of Sept. 26 (Courting Disaster). Any time you need basic information, I would cordially invite you to contact officials of my department or the DFO Web site.

You state that “only now that a federal election call is imminent are illegal lobster traps being seized — a year after they were first set.” This is inaccurate.

Since the Supreme Court of Canada Marshall decision a year ago, we have carried out dozens of enforcement actions. In fact, we seized nearly 600 traps in Miramichi Bay on Oct. 22, 1999, following closure of the fishery. Since then, we have seized thousands of lobster traps from non-aboriginal as well as aboriginal people. In other fisheries, we have acted vigorously to prevent individuals from engaging in unauthorized activities.

You state that the extent of the Marshall decision is simply: “Descendants of Nova Scotia’s LaHave Indians are allowed to fish for eels.” In fact, the Supreme Court decision has a much wider application. The court’s specific decision in Marshall concerned eels, but it took the opportunity to provide general guidance on the nature and scope of the treaty right. The Supreme Court referred to providing equitable access to the commercial fishery, and that is what the government is working to do. The article of the same date by Lawrence Solomon (Lobster Trap) says I am hell- bent on creating jobs in the fishery for EI purposes. In fact, the number of fishing boats and jobs has dropped sharply in recent years. Through a voluntary licence retirement program, government has reduced the number of licences to foster a sustainable fishery. If Mr. Solomon consults the DFO Web site, he will see that registered Atlantic fishermen dropped from 61,500 in 1992 to 42,700 in 1999.

Mr. Solomon appears to think we should do away with lobster seasons and regulate by size limits only. He favours an American-style system with no closed season. But international fisheries experts generally agree that our conservation system (using size limits, seasons, trap limits, zone limits and limits on the number of fishers) is superior to the American one. In recent decades, many U.S. fisheries have begun adopting Canadian-style regulations such as licence limitation.

Mr. Solomon complains that in the Burnt Church food fishery, we have drastically reduced the number of traps. He omits to add that following the Marshall decision last year, we have authorized a larger commercial lobster fishery for Burnt Church First Nation, as well as access to the lucrative crab fishery. Finally, Mr. Solomon states: “The white fishermen’s refusal to accept the law of the land and the government’s fear that it could lose the Maritimes — and its majority government — if it alienates the white vote, explains the fishery department’s sudden concern for conservation.” Conservation does remain my first priority.

My department has been in constant communication with the Burnt Church Band about our conservation concerns, both with their recent level of fishing effort, and with their proposed management plan. The scientific evidence is clear: Even if no one but the Burnt Church First Nation were to fish lobster in the Miramichi Bay area, the level of effort they are proposing would still be too high, and would pose a conservation risk. It is for conservation reasons that the commercial fishery in Lobster Fishing Area 23 (where the band has been fishing) has been closed since the end of July, and that I closed the food fishery in the area last week.

However, I should be very clear that I have never said conservation is my only concern. To do so would be to ignore the Supreme Court’s Marshall ruling, and my responsibilities as Minister. Instead, I have been clear and explicit from the beginning in saying that, in addition to conservation, I must regulate the fishery for other important objectives such as economic and regional fairness, and recognition of the reliance of non-aboriginal groups on the fishery. I intend to live up to those responsibilities. I hope this information clarifies the situation for your readers.

The Honourable Herb Dhaliwal, PC, MP, Minister of Fisheries and Oceans.

Dear Mr. Solomon:

Congratulations on your hard-hitting column (Lobster Trap). It was a great and sudden gust of fresh air for many of us dispirited by the National Post’s ritual knee-jerk condemnation of all First Nations activities, good, bad or indifferent. You presented the Native position at Burnt Church in a rational light that can only win you the sincere thanks of many fair-minded non-native Canadians.

G. Campbell McDonald, Toronto.

A very interesting and informative article. I’ve never seen the facts about the cutbacks in the aboriginal lobster harvest before this day. I agree that it’s shameful. I do not share your immense respect for the Supreme Court of Canada, however. It’s my understanding that nowhere does the treaty mention fish, lobster, timber, etc., and I absolutely abhor the new reality that judges will make the treaty conform to what they, the unelected, want. Another thing: I don’t think the Liberals were anointed by voters in Atlantic Canada the last time they stood for election, but the signs are that the problem will be taken care of next time.

Gerald Woods, Pender Island, B.C.

Read ‘Lobster Trap’ by Lawrence Solomon

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.”

Lawrence Solomon
National Post
September 26, 2000

Phony conservation claims and sharp dealing by the federal fisheries minister foil justice for the natives of Burnt Church.

Herb Dhaliwal, Federal Fisheries Minister, regulates the Atlantic lobster fishery to conserve that most valued of Maritime resources — employment insurance. Each fishery licence that he dispenses not only carries the right to harvest the sea but also the right to land special payments called “EI fishing benefits.” This second catch — the only benefits that EI provides to any self-employed workers in Canada — provides fishermen with up to $413 a week when they’re not working. Fishermen can qualify for benefits by earning as little as $2,500, for as short a period as one week. Because fishermen often have two fishing seasons, Mr. Dhaliwal’s accommodating regulatory system provides a second EI season. EI blesses no other workers with two collection periods per year, and with the right to qualify for benefits based on income earned, as opposed to hours employed. In return, Atlantic Canadians bless federal Liberals at election time.

Employment insurance complements Mr. Dhaliwal’s chief political function — to conserve and create jobs in the fishing industry. In the lobster fishery, he accomplishes this feat through short fishing seasons, which he also rotates throughout the region to keep lobster in continual supply. In southern New Brunswick, for example, lobster fishing is legal only in the fall; in northern New Brunswick, where the Burnt Church natives have been defying Mr. Dhaliwal’s directives, lobster fishing is legal only in the spring. Lobster is legally fished somewhere in Atlantic Canada at almost any time of the year.

Mr. Dhaliwal’s government also redistributes fishing jobs and EI fishing benefits from one community to another. In 1990, the government allowed Burnt Church 2,250 off- season lobster traps in what is called a non-commercial “food fishery.” In 1996, to leave more lobsters for white fishermen, it reduced their number of off-season traps to 1,500. In 1997, the number became 800 and in 1999, 600. In 2000, it became a minuscule 40. Last week, with a federal election in the offing and with white fishermen threatening to take the law into their own hands, Mr. Dhaliwal closed Burnt Church’s off-season food fishery. In doing so, he cited the need to conserve lobster stocks.

Last year, the Supreme Court — in the latest in an impressive string of victories for Canada’s native people — ruled that 240 years ago the Crown had given the Mi’kmaq bands in eastern Canada rights to a moderate income from fishing and hunting. Our Constitution in 1982 elevated that right to a constitutionally protected property right. “A deal is a deal,” the Supreme Court stated unambiguously. For natives, fishing is a right; for others, only a privilege. The government may regulate the fishery, it explained, but only for impeccably legitimate reasons, such as conservation, and only after appropriate consultation. Even then, the government must go no further than necessary and it must seek to accommodate the natives’ property rights, for example by adopting “different techniques of conservation and management.” The Supreme Court formally assumes our government representatives acted with integrity at all times, never “sharp-dealing.” To negotiate with natives insincerely, the Supreme Court has repeatedly ruled, would be beneath “the honour and the dignity of the Crown.”

Can Mr. Dhaliwal legitimately claim that the closed season system is the only effective way to conserve and manage Canada’s lobster stocks? “Many, perhaps most jurisdictions, don’t have a closed lobster season, and, apart from Canada, no jurisdiction in the world has a closed lobster season for clawed lobsters, such as we have in the North Atlantic,” states Robert Bayer, professor of biosystem science and executive director of The Lobster Institute at the University of Maine, the world’s leading lobster research body.

Having an open lobster fishing season doesn’t prevent U.S. regulations from being far more stringent than Canada’s. Americans can’t catch lobsters under 1 1/4 pounds; Canadians can catch lobsters as small as one-half pound, far below the size at which most females can reproduce. While U.S. stocks have stayed steady, our employment-oriented fishery regulations have seen our stocks drop over the last decade, leading some to fear our lobsters may be overfished, much as our cod and salmon were. The U.S. system, however, can’t compare to some New Zealand and Australian jurisdictions in promoting conservation practices. There, because fishermen have superior property rights, they let lobsters grow to become sizeable adults without fear that others will steal their catch. That type of successful property-rights-based regulatory approach is precisely what Canada’s native people seek to protect themselves and their lobsters.

As the Supreme Court explains, the dispute over fishing rights is akin to interpreting a contract entered into between the government and the native bands. The dispute has been inflamed into a political crisis by the white fishermen. Two weeks after the Supreme Court’s decision, they expressed their outrage by destroying $250,000 worth of native property, as well as the property of those who did business with natives. The white fishermen’s refusal to accept the law of the land, and the government’s fear that it could lose the Maritimes — and its majority government — if it alienates the white vote, explains the fishery department’s sudden concern for conservation.

After the next election, the government may decide to negotiate honestly with the Mi’kmaq, resolving the dispute outside the courts, as the Supreme Court prefers. If the negotiations fail, the parties will be back before the court, which will then judge whether the government imposed legitimate regulations.

The Supreme Court might decide that re-electing Liberals is a legitimate reason to regulate. Or that the government was right to succumb to blackmail from white fishermen. Or that the lobster stocks can only be protected by the government’s sub-standard closed-season system.

Or the Supreme Court may decide — as it has so many times in the past — that Canada has no room for sharp- dealing by the likes of Mr. Dhaliwal. It will then rule — as it did in the case of Donald Marshall, whom the government also accused of illegally fishing off-season — that the Burnt Church natives, far from acting illegally, were only exercising their legitimate property rights.