Dhaliwal Declines to Say If He Accepts Legal Advice
From Justice on Lobster Food Fishery

OTTAWA - "Legal documents from the Department of Justice indicate that the lobster food fishery lacks a legal basis," said John Cummins, M.P. (Delta-South Richmond) after questioning the Minister of Fisheries in Parliament today.

"The Minister of Fisheries continues to refuse to indicate," Cummins said, "if he is agrees with and is prepared to accept the legal advice from Justice lawyers that there is no basis for any native claim to a lobster food fishery."

The exchange between the Minister of Fisheries and Cummins is reprinted below:

Cummins: Mr. Speaker, yesterday the Minister of Fisheries and Oceans denied the assertion made by the Department of Justice that there was no legal basis for a lobster food fishery in St. Mary's Bay. Let me remind him of what Justice lawyers said and I quote:

"Prior to contact with Europeans, harvesting lobster for food from St. Mary's Bay was never an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group."

That is to say, there is no aboriginal right to a lobster food fishery.

Does the Minister of Fisheries and Oceans agree with the legal advice from Justice or not?

Dhaliwal (Minister of Fisheries.): Mr. Speaker, first of all the documents the hon. member is reading from is a matter before the courts. However, I want to assure the hon. member that I listened to the wisdom of the Minister of Justice and they should listen to the Minister of Justice as well. Her advice is taken very seriously. We have set out a long term and short term strategy which is supported by the provincial fisheries minister of P.E.I., the provincial fisheries minister of New Brunswick, the provincial fisheries minister of Quebec and the provincial minister of Nova Scotia. It is a policy that is supported by all of them except the hon. member in the Alliance Party. That is very typical of them.

Cummins: Mr. Speaker, the lobster food fishery is a failed Liberal policy now rejected by the Department of Justice. There is no aboriginal right to a food fishery for lobster. If there was, this policy would be an abject failure because it fails to meet the Supreme Court's objective of reconciliation between aboriginal and non-aboriginal communities. Rather this food fishery leads to isolation and confrontation.

Who speaks for the government on the legal basis for the lobster food fishery? The Minister of Fisheries and Oceans or the Minister of Justice?

Dhaliwal: Mr. Speaker, the strategy which we have laid out is supported by the government and in fact supported by other parties in the House except the Alliance. We have said right from day one that we will resolve this by negotiation. That is exactly what the Supreme Court said, resolve this through negotiation. What this hon. member would want us to do is go to the courts and litigate. We do not want to litigate. We negotiate. The difference between the Alliance Party and us is we want to build bridges through dialogue, through co-operation and through peaceful means; not divide Canadians as it wants to do.

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Contact: John Cummins, M.P.
(613) 992-2957 or cell (604) 970-0937

Department of Justice Rejects Lobster Food Fishery

Legal Opinion on Aboriginal Right to a Lobster Food Fishery

"12. h) [The Department of Justice] denies that St. Mary's Bay is located within the traditional fishing grounds of any local community of which the [Shubenacadie Band] is a successor community;

18. d) [The Department of Justice says] that prior to 1997 none [of the members of the Shubenacadie Band] fished for lobster in St. Mary's Bay;

[THE SHUBENACADIE BAND] HAVE NO CONSTITUTIONALLY PROTECTED ABORIGINAL OR TREATY RIGHT TO FISH LOBSTER

25. [The Department of Justice] denies that [the Shubenacadie Band] have any constitutioanlly protected aboriginal or treaty rights to fish lobster in St. Mary's Bay or at all.

26. [The Department of Justice] specifically denies that the [Shubenacadie Band], their predecessors or the Mi'kmaq Indians in Nova Scotia fished lobster for food, social, or ceremonial purposes before or at the time of European contact in St. Mary's Bay or at all.

30. [The Department of Justice] says:

b) prior to contact with Europeans, trading lobster for necessaries was not an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group the [Shubenacadie Band] are successors to, and therefore no aboriginal right can be claimed;

c) prior to contact with Europeans, harvesting lobster for food, social and ceremonial purposes from St. Mary's Bay was never an element of a practice, custom or tradition integral to the distinctive culture of the aborgianl group the [Shubenacadie Band] are successors to;"

-Department of Justice Statement of Defence in Federal Court in Shubenacadie v. The Queen (May 14, 2001)

Aboriginal Right: The Supreme Court of Canada in Mitchell defined what constituted an aboriginal right:

Stripped to essentials, an aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact. The practice, custom or tradition must have been integral to the distinctive culture of the aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples' identity. It must be a defining feature of the aboriginal society, such that the culture would be fundamentally altered without it. It must be a feature of central significance to the peoples' culture, one that truly makes the society what it was. (para. 12)

Reconciliation: The Court in Mitchell declared reconciliation the objective of the recognition of aboriginal rights.

"The constitutional objective is reconciliation not mutual isolation." (para. 133)

Contact: John Cummins, M.P.
(613) 992-2957 or cell (604) 970-0937