Delta-South Richmond
|
John Cummins, M.P. Delta-South Richmond |
News Release |
FOR IMMEDIATE RELEASE
July 26, 2000
Demagoguery And Smear Tactics
by Herb Dhaliwal and Wayne Easter
OTTAWA--"A smear campaign is being conducted by Fisheries Minister Herb Dhaliwal and Fisheries Committee Chairman Wayne Easter against those who question the government's management of the lobster fishery in the Maritimes following the Marshall decision of the Supreme Court of Canada," said John Cummins, M.P. (Delta-South Richmond).
According to Mr. Dhaliwal, I am attempting "to mislead people and play on their fears". He claims my analysis of the implications of Marshall for the lobster fishery are "specious arguments to diminish and restrict the treaty right to the point where it becomes virtually meaningless". Mr. Easter has made similar statements.
Apparently I am in good company. My analysis of the Marshall decision is consistent with and in fact based upon the expert evidence and legal arguments provided to the Federal Court of Canada by Department of Justice lawyers acting on behalf of the Minister of Fisheries.
In December 1999, the Department of Justice provided expert evidence to the Federal Court to show that Mi'kmaq claimants had no basis to claim a treaty right to fish lobster commercially or an aboriginal right to fish them for food.
Justice lawyers argued that the Marshall decision required that any Mi'kmaq who claimed a treaty right to harvest lobster commercially must provide evidence to show that lobster fishing and trading in lobster are aspects of the rights recognized by Treaty. Furthermore the Mi'kmaq must show they are exercising such a right in an area traditionally used by their aboriginal community. The Department of Justice argued that there was no basis for such a claim.
"Can the Minister honestly claim that he was never advised by the Department of Justice that there is neither a basis for a treaty right to harvest lobster commercially, nor for an aboriginal right to fish them for food?" asked Cummins.
"How is it that when critics of the government's native fishing policy present the same information as the Department of Justice did in the Federal Court, they are accused of whipping up racial tensions? Strange as it may appear, to Herb Dhaliwal and Wayne Easter, merely speaking the truth about the Marshall decision is not racist," concluded Cummins.
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BACKGROUNDER ON RIGHT TO HARVEST LOBSTER
EXPERT EVIDENCE IN THE FEDERAL COURT OF CANADA
SUBMITTED BY THE DEPARTMENT OFJUSTICE
3. I have done extensive historical work on the 18th Century treaties between the British Crown and the Mi'kmaq, Malliseet and Passamaquoddy and I have published several articles in this field, as well as having testified in over a dozen cases in both Provincial and Federal Courts, including In the recent case that went to the Supreme Court of Canada in Regina v. Marshall...
7. Furthermore, it has been my observation that the folk memory of the Mi'kmaq is limited to literary and cultural matters and does not include specific knowledge of historical events or practices from, the 18th century or earlier. For example, the Missionary Silas Rand collected Mi'kmaq stories in the 19th century. These Mi'kmaq stories related to myths and legends without reference to specific historical events, dates or practices related to that particular period and time. Frank Speck, an anthropologist who collected oral history for the Mi'kmaq elders in the early 20th century, found knowledge of what had happened in the previous 50 or 60 years, but no consistency in knowledge of what might have happened prior to that time.
13. "[The Mi'kmaq claim that] lobster was `a primary food' of the Mi'kmaq is questionable in light of the historical evidence. By alleging that lobster is `still a primary food and trade commodity', Chief Barlow seems to suggest that historically or traditionally the Mi'kmaq involved themselves in a commercial lobster fishery. There is no evidence that this was so at the time of the 1760-1761 treaties or before. Lobster was not mentioned by aboriginals who signed these treaties even though they were asked to identify the commodities they might have to trade. I know of no evidence that the Mi'kmaq fished lobster for commercial purposes in the 18th century. Moreover, there are serious questions about how extensively the Mi'kmaq relied on lobster as a food, given that lobster fishing requires a technology that is specific to the species. If there was a traditional Mi'kmaq technology for fishing lobster, that information should be provided in order to assess Chief Barlow's claims. Given the unanswered questions on this matter, the nature and extent of traditional Mi'kmaq lobster fishing should be investigated further before a final opinion is rendered.
Excerpts from the Affidavit of Prof. Stephen Patterson on behalf of the Department of Justice in Barlow.
BACKGROUNDER ON THE RIGHT
TO HARVEST LOBSTER
DEPARTMENT OF JUSTICE LEGAL ARGUMENT (Esta Resnick)
IN THE FEDERAL COURT OF CANADA
7. Some of the questions that would have to be determined by the Court with respect to the [issue of the "alleged treaty right to fish lobster and to trade the produce of that fishing"] will, inter alia, include:
(a) Whether or not the Applicant [Mi'kmaq] is a member of an aboriginal community which was a signatory to one of the series of the 1760 Treaties of Peace and Friendship entered into between the Mi'kmaq people and the Crown?
(b) If, so which Treaty is it?
(c) What are the terms of that Treaty?
(d) Are the activities of lobster fishing, and trading in lobster, aspects of the rights recognized by the Treaty?
(e) Was the Applicant [Mi'kmaq] exercising any such right in the area traditionally used by that aboriginal community? and
(f) What is the traditional territory of that aboriginal community?
9. It is therefore incumbent upon the [Mi'kmaq] to establish that lobster fishing and trading are aspects of a treaty right held by the aboriginal community to which [they belong].
Excerpts from the Affidavit of Department of Justice lawyer, Esta Resnick, as submitted to the Federal Court of Canada, December 24, 1999 in the Barlow case.
BACKGROUNDER ON THE RIGHT TO HARVEST LOBSTER
DEPARTMENT OF JUSTICE LEGAL ARGUMENT (Written Representations)
IN THE FEDERAL COURT OF CANADA
19. Second Peter Barlow also fails to set out any facts to support his allegation that Ken Barlow was free to fish lobster in Miramichi Bay on October 22, 1999 because his people always fished in that area. In order for the Applicants to support that allegation, they must set out the historical evidence either in written form or through oral history of their elders to support their allegations, instead of making bald-faced assertions which are not admissible without the necessary factual underpinnings to support it.
20. ...In this case there is not a scintilla of evidence to support the bald-faced assertions that the Applicants in fact have an aboriginal treaty right...Ken Barlow does not even suggest that he has an aboriginal treaty right under section 35 of the Constitution Act. Nor does he depose to any facts which would give rise to such a right.
61. First of all, it is clear from the pleadings that the Applicants are relying on the oral histories of the Mi'kmaq people as evidence to establish an alleged treaty right to fish for lobster in Miramichi Bay...
63. ...it will be necessary for the Applicants to adduce oral history evidence to establish a treaty right to fish for necessaries in Miramichi Bay as claimed. Such oral history evidence will include oral history evidence as to the intention of the Mi'kmaq person, or persons, who signed the treaty on behalf of the Mi'kmaq communities in question.
75. As well as extensive oral history evidence, the issues raised in the application will require a detailed examination of historical, anthropological and ethno-historical evidence presented by expert witnesses to determine such issues as:
(i) whether or not the Applicant Ken Barlow is a member of an aboriginal community which was a signatory to one of the series of the 1760 Treaties of Peace and Friendship entered into between the Mi'kmaq people and the Crown;
(ii) if so, what are the terms of that Treaty;
(iii) are the activities of lobster fishing and trading in lobster aspects of the rights recognized by that Treaty;
(iv) was the Applicant Barlow exercising any such right in an area traditionally used by his aboriginal community;
(iv) what is the traditional territory of his aboriginal community?
Excerpts from the Legal Argument by the Department of Justice, submitted to the Federal Court of Canada on December 24, 1999 in the Barlow case.
For more information, please contact:
John Cummins, M.P.
(613) 992-2957
(604) 970-0937 (Cell)