John Cummins, M.P. Delta-South Richmond

News Release

FOR IMMEDIATE RELEASE
September 27, 1999

Yarmouth, Nova Scotia --"Today I have asked the federal Minister of Justice and the Attorneys General of the provinces affected by the Marshall decision of the Supreme Court of Canada to apply to the Supreme Court for a stay of judgement and a rehearing of the case," said John Cummins, M.P. (Delta-South Richmond).

"Immediate action is required by the governments involved as the Marshall judgement has the potential effect of expropriating immediately or over time all commercial fishing rights held by non-Mi’kmaq Canadians in fisheries accessible to the Mi’kmaq people," remarked Cummins.

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For more information, please contact:

John Cummins, M.P.
(604) 940-8040 or 970-0937 (cell)

Sept. 27, 1999

Hon. Herb Dhaliwal, P.C., M.P.
Minister of Fisheries and Oceans
House of Commons
Ottawa, Ontario
K1A 0A6

Dear Minister:

The recent Supreme Court of Canada ruling on Mi’kmaq fishing rights will have an enormous impact on the fishing industry in Canada in all areas accessible to the Mi’kmaq people.

As you are aware, the situation in law now is that before fisheries managers can lawfully open the fishery to others, the Mi’kmaq people must be accorded the opportunity to fully satisfy their right to fish for a moderate livelihood. This follows from the order of priority set out in Sparrow and other cases which establish firmly that aboriginal and treaty rights have priority over general commercial and sport fishing rights.

"A moderate livelihood" is defined by the court as including fishing for food, clothing, housing and a few amenities but not the accumulation of wealth. It is likely that there are few existing commercial fishermen that enjoy any greater standard of living than this. These fishermen will now have to stand aside while each and every Mi’kmaq who chooses to fish, does so and earns enough to achieve this level of income.

To make matters worse, the Court struck down the current regulation of the fishing rights of the Mi’kmaq because those regulations do not have any specific accommodation and regulation of the right as a priority right. The Minister’s absolute discretion under the Fisheries Act, which is the basis of existing regulations, was held not to be an adequate protection of the treaty right. Accordingly, at the moment there is no valid regulation of the Mi’kmaq right. Unrestrained fishing can take place by the Mi’kmaq until such time that a regulatory regime is restored. This could take months or even years since consultation must take place beforehand.

Even with proper regulation, experience with respect to native fishing times shows that fisheries managers will err on the side of allowing too much fishing rather than too little. Because non-aboriginal fishermen do not have access to constitutional remedies for infringements on their rights, (as aboriginal fishermen do), the practice of erring on the side of aboriginal fishing rights seems to have been adopted as a method of keeping DFO managers on safe ground, free of legal challenges.

In my opinion, the Marshall judgement has the potential effect of expropriating immediately or over time, all commercial fishing rights held by non-Mi’kmaq Canadians in fisheries accessible by the Mi’kmaq people. In this respect it is worse for the existing interests than the Boldt decision in the State of Washington. That decision left 50% of the fishery in the hands of existing fishermen.

From the point of view of those engaged in the fishery, the current situation is similar to that faced by the citizens of Manitoba when all the laws of Manitoba were struck down by the Supreme Court in the Manitoba Language Rights Reference for failure of the government to publish the laws of Manitoba in both official languages. Because the result was to leave a legal vacuum, the court granted a stay of the effect of its judgement for a period which it considered sufficient to allow the government of Manitoba to translate all existing laws. This remedy has been granted in a number of other cases

I recommend that immediate steps be taken to apply to the Supreme Court for two things: 1) a stay of the judgement and 2) a rehearing of the case.

The stay would preserve the fishery during the period required to pass regulations consistent with the judgement, while the rehearing would allow the Court to give greater definition to the judgement so that fishery managers could apply it to the existing fisheries and fishermen affected.

The Court has jurisdiction to rehear an appeal. (Rule 51 of the Supreme Court Rules) The application must be made within 30 days of pronouncement of the judgement. Our deadline is October 17, 1999.

The application should be made with full argument in writing accompanied by full affidavit and other materials – since the court may decide the issue without an oral hearing. An oral hearing should nevertheless be requested.

It is important that the court be fully apprised of the social-economic facts so that the impact of the judgement is brought fully into focus.

The Attorneys General of all provinces affected by this ruling should apply for intervenor status and the right to be heard in an oral hearing. Evidentiary materials showing the impact in their provinces should be included with their applications.

I believe that an oral hearing would have a good chance of success if requested by the federal Justice Minister and all relevant provincial Attorneys General.

There is precedent also for the rehearing to be held before the full court rather than the original panel. Such a request should be considered and should be made if it can be made in a way that does not cast any aspersion on the panel which sat on the original hearing.

On the rehearing application the Court should be forced to face the issue squarely as to whether they intend to expropriate existing fishing interests and, if so whether any compensatory measures are appropriate.

It is imperative, in our view, for the Court to rehear the matter, having issued a stay meanwhile, since neither Parliament nor the provincial legislatures have the power to deal with the matter, it having been put out of the reach of the legislative branch by s.35(1) and s. 52 of the Constitution Act 1982. The "notwithstanding clause" is not available since s. 35(1) is not part of the Charter. The only legislative remedy is a constitutional amendment by Parliament and the legislatures of seven provinces containing 50% of the population of Canada. This is probably impracticable. Hence an immediate application for a stay and a rehearing may be the only means available to remedy an intolerable situation.

In light of the urgency of this matter, I ask that it receive your immediate attention.

Yours truly,

John Cummins, MP

Sept. 27, 1999

Hon. Anne McLellan, P.C., M.P.
Minister of Justice and Attorney General of Canada
House of Commons
Ottawa, Ontario
K1A 0A6

Dear Minister:

The recent Supreme Court of Canada ruling on Mi’kmaq fishing rights will have an enormous impact on the fishing industry in Canada in all areas accessible to the Mi’kmaq people.

As you are aware, the situation in law now is that before fisheries managers can lawfully open the fishery to others, the Mi’kmaq people must be accorded the opportunity to fully satisfy their right to fish for a moderate livelihood. This follows from the order of priority set out in Sparrow and other cases which establish firmly that aboriginal and treaty rights have priority over general commercial and sport fishing rights.

"A moderate livelihood" is defined by the court as including fishing for food, clothing, housing and a few amenities but not the accumulation of wealth. It is likely that there are few existing commercial fishermen that enjoy any greater standard of living than this. These fishermen will now have to stand aside while each and every Mi’kmaq who chooses to fish, does so and earns enough to achieve this level of income.

To make matters worse, the Court struck down the current regulation of the fishing rights of the Mi’kmaq because those regulations do not have any specific accommodation and regulation of the right as a priority right. The Minister’s absolute discretion under the Fisheries Act, which is the basis of existing regulations, was held not to be an adequate protection of the treaty right. Accordingly, at the moment there is no valid regulation of the Mi’kmaq right. Unrestrained fishing can take place by the Mi’kmaq until such time that a regulatory regime is restored. This could take months or even years since consultation must take place beforehand.

Even with proper regulation, experience with respect to native fishing times shows that fisheries managers will err on the side of allowing too much fishing rather than too little. Because non-aboriginal fishermen do not have access to constitutional remedies for infringements on their rights, (as aboriginal fishermen do), the practice of erring on the side of aboriginal fishing rights seems to have been adopted as a method of keeping DFO managers on safe ground, free of legal challenges.

In my opinion, the Marshall judgement has the potential effect of expropriating immediately or over time, all commercial fishing rights held by non-Mi’kmaq Canadians in fisheries accessible by the Mi’kmaq people. In this respect it is worse for the existing interests than the Boldt decision in the State of Washington. That decision left 50% of the fishery in the hands of existing fishermen.

From the point of view of those engaged in the fishery, the current situation is similar to that faced by the citizens of Manitoba when all the laws of Manitoba were struck down by the Supreme Court in the Manitoba Language Rights Reference for failure of the government to publish the laws of Manitoba in both official languages. Because the result was to leave a legal vacuum, the court granted a stay of the effect of its judgement for a period which it considered sufficient to allow the government of Manitoba to translate all existing laws. This remedy has been granted in a number of other cases

I recommend that immediate steps be taken to apply to the Supreme Court for two things: 1) a stay of the judgement and 2) a rehearing of the case.

The stay would preserve the fishery during the period required to pass regulations consistent with the judgement, while the rehearing would allow the Court to give greater definition to the judgement so that fishery managers could apply it to the existing fisheries and fishermen affected.

The Court has jurisdiction to rehear an appeal. (Rule 51 of the Supreme Court Rules) The application must be made within 30 days of pronouncement of the judgement. Our deadline is October 17, 1999.

The application should be made with full argument in writing accompanied by full affidavit and other materials – since the court may decide the issue without an oral hearing. An oral hearing should nevertheless be requested.

It is important that the court be fully apprised of the social-economic facts so that the impact of the judgement is brought fully into focus.

The Attorneys General of all provinces affected by this ruling should apply for intervenor status and the right to be heard in an oral hearing. Evidentiary materials showing the impact in their provinces should be included with their applications.

I believe that an oral hearing would have a good chance of success if requested by the federal Justice Minister and all relevant provincial Attorneys General.

There is precedent also for the rehearing to be held before the full court rather than the original panel. Such a request should be considered and should be made if it can be made in a way that does not cast any aspersion on the panel which sat on the original hearing.

On the rehearing application the Court should be forced to face the issue squarely as to whether they intend to expropriate existing fishing interests and, if so whether any compensatory measures are appropriate.

It is imperative, in our view, for the Court to rehear the matter, having issued a stay meanwhile, since neither Parliament nor the provincial legislatures have the power to deal with the matter, it having been put out of the reach of the legislative branch by s.35(1) and s. 52 of the Constitution Act 1982. The "notwithstanding clause" is not available since s. 35(1) is not part of the Charter. The only legislative remedy is a constitutional amendment by Parliament and the legislatures of seven provinces containing 50% of the population of Canada. This is probably impracticable. Hence an immediate application for a stay and a rehearing may be the only means available to remedy an intolerable situation.

In light of the urgency of this matter, I ask that it receive your immediate attention.

Yours truly,

John Cummins, MP