Dear Editor:

Re: Dhaliwal Letter of August 2, 2000

A smear campaign is being conducted by Fisheries Minister Herb Dhaliwal 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.

Mr. Dhaliwal is prone to labelling critics of his fisheries policy as racists and suggesting that I believe "aboriginal people have no real place in the commercial fishery". 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".

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 in the Barlow case 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:

"[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..."

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.

Furthermore Mr. Dhaliwal claims, that when I quote from the Supreme Court ruling to show that the clarification made it clear that the original decision was nothing more than a ruling on a small-scale commercial eel fishery, that I am "selectively quoting phrases out of context" so as paint "a fundamentally misleading picture".

Again I am in good company. Previously secret briefing documents prepared by the Privy Council Office, the cabinet secretariat supporting the Prime Minister's Office, reveal that the Prime Minister and the President of the Privy Council were advised that the Supreme Court clarification limited the original decision to the eel fishery:

"The Court specified the treaty right to fish hunt and gather was...limited, in the case before it, to the right to fish, specifically for eels...It underlined that the original ruling dealt with the right to fish, specifically for eels."

"...the SCC took the opportunity to clarify several aspects of its original decision and emphasize its limited scope...The Court explicitly stated that the scope of the Marshall ruling was confined to Marshall's right to trade eels..."

Can Mr. Dhaliwal 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 or by the Privy Council that the Marshall decision was largely "limited" to the eel fishery?

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 or the Privy Council did to the Prime Minister, they are accused of misleading the public and distorting what the Supreme Court has said?

Yours sincerely,

John Cummins, M.P.
Delta-South Richmond