John Cummins, M.P. Delta-South Richmond

News Release

FOR IMMEDIATE RELEASE
April 11, 2000

"The negotiations being conducted by James MacKenzie and Gilles Theriault have everything to do with government policy and absolutely nothing to do with the Supreme Court decision," said Cummins.

April 11, 2000

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

Dear Minister:

You paint a fundamentally misleading picture of the Marshall decisions in your critique of the Atlantic Fishing Industry Alliance's Position Paper.

Your criticisms are a reminder that you fought the application for a stay and rehearing of the initial decision, a split-decision that your own officials have characterized as one so "very complex and difficult to interpret" that "the Court had to clarify [it] two months later". Why do you now refuse to recognize the clarification of November 17th?

The Court, in its unanimous second decision, provided a prism through which we are to understand the treaty right and the much disputed initial decision. Your actions since the clarification was issued on November 17th, and your response to the Position Paper, indicate a continued determination on your part to ignore the clarification, and the industry's attempts to comply with it.

You characterize the industry as downplaying the significance and extent of the treaty right, selectively quoting from the decision, and painting a fundamentally misleading picture. Have you read the clarification?

Donald Marshall, it said, had established that his treaty right "allowed him to fish for eels in what was described as a small-scale commercial activity to help subsidize or support himself and his common-law spouse".

The Court cautioned about "unjustified assumptions" and "extended interpretations" when it reminded everyone that "the decision in this particular prosecution is authority only for the matters adjudicated upon". The treaty right was to be understood as what was reasonably in the contemplation of the parties in 1760.

You make "unjustified assumptions" and "extended interpretations" in regard to the treaty right that even a casual reading of the clarification cannot bear.

You imply that the industry has selectively quoted from the judgment when referring to "traditionally" fished, "small-scale" fishing, or other words that may suggest a limited right. These concepts are the cornerstones of the Marshall decision. To deny their existence is to abandon principles on which the Marshall decision is built. You are building not on Marshall but on sand. You have abandoned the clear intention of the Court.

The concept of a limited commercial fishery right is clearly referenced in the clarification -

• as a "limited commercial right to fish" in the judgement summary;

• as a right "limited to the area traditionally used by the local community" and "their exercise is limited to the purpose of obtaining from the identified resources the wherewithal to trade for necessaries" in para 17;

• "in my view, the treaty rights are limited to securing necessaries" in para 21; and

• "to accommodate a limited commercial right" in para 34.

The concept of a small-scale fishery is clearly referenced in the clarification -

• as "a local Mi'kmaq treaty right to carry on small-scale commercial eel fishery" in the judgement summary;

• as "a small-scale commercial activity" in para 13; and

• as a "small-scale commercial eel fishery" in para 28.

The concept of traditional activities, locations, species and the like are clearly referenced in the clarification -

• as "the products of those traditional activities", "traditional harvest species" in para 14;

• as "right to hunt or fish in that community's traditional hunting and fishing grounds" and "treaty rights will be limited to the area traditionally used by the local community" para 17;

• as "fish, wildlife and traditionally gathered things" and "resources traditionally gathered in an aboriginal economy" in para 19 ;

• as "treaty rights to fish and wildlife or to the type of things traditionally gathered by the Mi'kmaq in a 1760 aboriginal lifestyle" in para 20; and

• as "the fact it was only hunting and fishing resources to which was affirmed, together with traditionally gathered things" in para 38 .

It doesn't matter whether one is enthusiastic or critical of the clarification. The unanimous decision is generally clear and unambiguous. The same cannot be said of your reading of the decision or your actions taken in regard to it.

A key point which you ignore both in your strategy to implement the decision and in your critique of the industry's paper is the individual nature of the treaties. When reference is made to the treaties of 1760-61, it was not to three separate treaties, ones with the Maliseet and Passamaquody in 1760 and the Mi'kmaq in 1761 but separate treaties with each separate band or community.

The Court made it very clear that the treaties were local and the benefits were local: "no treaty was made by the British with the Mi'kmaq population as a whole...The treaties were local and the benefits were local" (in para 17). More importantly neither side could substitute or move the benefits to a new location without amending the treaty: "In the absence of a fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the community with which the separate but similar treaty was made."

You have intentionally ignored the local nature of treaties, giving a Truro band a lobster licence in Yarmouth, a distance that could by no stretch of the imagination have been in contemplation of the parties in 1760 as the local area traditionally fished by the Truro band. The right was a right to fish in a particular area, not anywhere the band or the Minister might want them to fish.

It is time for you to read the decision, and report on how your actions since November 17th reflect the clear and unambiguous nature of the treaty right described by the Court.

You are entering into agreements to allow bands to fish non-traditional species outside of their traditional areas. The particular regulations that the Court found objectionable involved eels. The reference to small-scale rather than being misleading is, in fact, the clear and express words of the Court. It is the Minister who is misleading the public.

As part of their negotiation strategy your officials are threatening expropriation. While you deny the practice, your officials have given evidence before the Fisheries Committee that they are indeed threatening expropriation and intend to undertake such a measure if licence holders do not sell their licences at a price deemed acceptable to the government.

You have not said if your licence acquisition and transfers have already brought native participation in the fishery close to its percentage of the population, what the Supreme Court called "proportionality", or if in fact this is your objective.

Now some six months after the clarification the time is past for you to chastise those who have read the decision and who seek to respect its dictates. Now is the time for you to clearly state how government policy and its objectives are consistent with the November 17, 1999 decision of the Court.

Yours sincerely,

John Cummins, M.P.
Delta-South Richmond

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For more information, please contact:

John Cummins, M.P.
(613) 992-2957
(613) 970-0937 (Cell)