No Aboriginal or Treaty Right to Lobster

OTTAWA--"The Minister of Fisheries chooses to ignore that the Marshall decision was nothing more than a court case about a small-scale commercial eel fishery. The Court did not require food or commercial fishing in species other than eels," said John Cummins, M.P. (Delta-South Richmond).

In the Yarmouth area of Nova Scotia, the question of the native food fishery for lobster is of great concern. The food fishery, as defined by the Supreme Court of Canada in Sparrow and Van der Peet, is an existing aboriginal right within the meaning of section 35 of the Constitution Act, 1982. In Van der Peet the Supreme Court articulated the legal test to be used to identify an "existing aboriginal right":

•	"In order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right."
•	In order for a practice to be "integral", the practice must be "of central significance" to the aboriginal society, "one of the things that made the society distinctive".
•	The practice must have developed before "contact", that is "before the arrival of Europeans in North America".

Prof. Stephen Patterson of the University of New Brunswick, the lead government witness in the Marshall case, testified recently in Barlow, a case involving the right to fish lobster by Richibucto Mi'kmaq. Prof. Patterson testified:

•	That he was not aware of any historical record of the Mi'kmaq catching lobster, nor of traditional stories or traditions relating to the catching or eating of lobster;
•	That serious questions exist about the ability of the Mi'kmaq to harvest lobster as it requires a particular technology and ability that the Mi'kmaq did not appear to have; and
•	That while the Mi'kmaq may have taken lobster that were washed up on shore after a storm, they would have done so only on an occasional basis.

"Put to the test established in Van der Peet, Prof. Patterson's testimony makes it clear that a right to fish lobster for food, social and ceremonial purposes does not exist. In acting as if the Court compelled him to provide a harvest of a non-traditional species such as lobster, the Minister is creating untold problems for fishery managers and for fishermen," said Cummins.