Trade rights: Lawmaking courts goofed in fishery regulations ruling

Calgary Herald
Wednesday, October 6, 1999

The Supreme Court did not expect its judgment in the Marshall case would unleash a free-for-all in Burnt Church, NB. It obviously did not intend to threaten the livelihood of Maritime commercial fishermen, deplete fish stocks and create a rampage of retaliatory violence.

Yet the consequences of this decision are the worst example to date of what happens when elected officials allow activist courts to make laws.

Using new methods of interpretation, the court determined that the 1760 Mi'kmaq treaty granted a general right to trade. It also declared this right could be regulated by government. Here's the problem. The decision only established that the treaty rights exist. The onus is now on the government to show the fisheries regulations are a justifiable limitation of those rights. Before the Crown could get to this second step, the Mi'kmaq declared an open season on the fishery.

Regulations may now have to be modified. The courts have said natives have the right to trade for day-to-day needs. In customary fashion, alas, the learned justices provided no specifics on what that might mean in practical terms today.

In the 1760s, it included such things as shot, gun powder, metal tools, clothing cloth and blankets. In refusing to clarify, the courts have effectively granted unlimited commercial access to natives that supercede the fishing rights held by non-native licencees.

It is ironic this decision has created such mayhem since it hinges on a treaty that was signed to end enmity. In 1760, Britain was still at war with New France and the Mi'kmaq, allied with the French king, became literally caught in the crossfire. The British negotiated the 1760 treaty to establish peace with the Mi'kmaq and expand their northern territories. By signing this treaty the Mi'kmaq acknowledged the jurisdiction of the British Crown and thereby enjoyed a general right to trade conferred upon all inhabitants of the region.

But the British did not want the Mi'kmaq trading with the enemy French. Both parties agreed that in exchange for restricting trade autonomy, the British would set up special British trading posts, called ''truckhouses'' and grant the natives special rights to trade there. When the truckhouse system ended, their full status as British subjects was restored and this special trade right likewise ended. So did their claim to special entitlement as far as the fishery is concerned.

In colonial times, the fishery resource was perceived to be of ''limitless proportions.'' The collapse of the eastern cod fishery under the poor management of government regulators and the current turmoil in the West Coast salmon fishery are signs times have changed. Ensuring the long-term sustainability of lobster stocks demands immediate action.

The Supreme Court goofed by failing to heed the two dissenting judges who argued on the basis of history, not activism. Not only should a stay of judgment be enacted to end the violence in Burnt Church, but the Supreme Court should also provide clarity to legislators so they can get fishery regulations right. Anything less risks repeating the cycle of misunderstanding and mayhem.