John Cummins, M.P. Delta-South Richmond

News Release

June 28, 2001

Letter to the Editor
The Vanguard
P.O. Box 128
Yarmouth, Nova Scotia B5A 4B1

Dear Editor:

Re: Food Fishery Remains Controversial (June 12, 2001)

Gilles Theriault, the Minister of Fisheries' representative, says the food fishery should not be questioned because it was established by the Supreme Court in 1990 in the Sparrow decision: "That's the right recognized by the Supreme Court of Canada, that's the law of the land, so the right should not be questioned".

Wrong! That is not what the Supreme Court of Canada has said and that is not what the Department of Justice lawyers have been saying in Federal Court.

In Sparrow, the Supreme Court relied on expert evidence as to the special position held by the salmon fishery in Musqueam society: "The salmon was not only an important source of food but played an important part in the system of beliefs of the Salish people, and in their ceremonies." The evidence revealed that "the Musqueam had lived in the area as an organized society long before the coming of European settlers and that the taking of salmon was an integral part of their lives and remains so today." The Court found that the Muqueam, a lower Fraser River tribe, had an aboriginal right to take salmon in what has become known as a food fishery.

Earlier this year the Supreme Court in the Mitchell decision summarized the test for establishing 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 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 made the society what it is."

Based on the words of the Supreme Court, was the harvest of lobster for food a central feature of Indian Brook's culture prior to contact with Europeans? Was its harvest of lobster a defining feature of the Mi'kmaq culture, one that truly made the society what it was? No on both counts.

Department of Justice lawyers in Federal Court specifically denied that the Indian Brook band 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: "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 [Indian Brook band]".

The Supreme Court has said nothing that would indicate that the Indian Brook band has an aboriginal right to a lobster food fishery. Department of Justice lawyers have denied they have such a right. On what basis does Gilles Theriault make a legal claim that they have such an aboriginal right? What does he know that the Supreme Court and Justice lawyers do not know?

Yours sincerely,

John Cummins

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)