Marshall urges fishermen to remain calm

Canadian Press
Tuesday, September 28, 1999

HALIFAX. The man behind a Supreme Court of Canada ruling on native fishing appealed for calm Tuesday, saying he fears there could be violent confrontations on the water.

Donald Marshall Jr. says he hasn't slept well in the last couple of days because of news his landmark legal case is causing tension between native and non-Native fishermen.

Marshall asked Mi'kmaq fishermen Tuesday to stop fishing until a dispute with their non-native counterparts is resolved.

''There's a big crisis going on out in the waters,'' Marshall told a radio call-in show that focused on the court decision that recognized native treaty rights to fish and hunt without a licence.

''I'm asking our chiefs and native leaders to talk to our fishermen and pull out their nets and negotiate everything and then we'll see what comes out of it.''

The plea for calm came as non-native fishermen in New Brunswick were meeting to decide whether they should start sabotaging thousands of lobster traps in Miramichi Bay.

They had threatened to cut the traps lose if the federal government doesn't step in by today to resolve the situation that has grown more tense since the court decision on Sept. 17.

Since then some non-status and non-native fishermen have taken to the waters, assuming they have the right to fish out of season.

Nova Scotia fishermen agreed on the weekend to give the Department of Fisheries and Oceans until Sunday to settle the matter before they launched an illegal fishery.

''We waited this long,'' Marshall said. ''I think we could wait a little longer.''

Native fishermen set thousands of lobster traps in Nova Scotia and New Brunswick after the federal court decision gave Mi'kmaq and Maliseet unfettered rights to fish and hunt year-round and without licences.

The case was launched by Marshall, who had earlier been convicted of illegally fishing eels.

The ruling has enraged non-native fishermen, who fear the expanded fishery will deplete lucrative lobster stocks and destroy a way of life that's sustained communities for generations.

Many say there will be little left to fish when their lobster season opens on Nov. 29.

Federal Fisheries Minister Herb Dhaliwal said Tuesday he was waiting to get more information on what Ottawa can do legally to suspend or clarify the decision.

''I hope that in the next day or two days the Justice Department will give me some clarity,'' Dhaliwal after a cabinet meeting in Ottawa.

There is still confusion about who falls under the 1760 treaty natives say gives them the right to fish, hunt and gather without government involvement.

Dhaliwal said that question and one about fishing limits should soon be answered.

''This is a priority for myself and the government,'' the minister said. ''As you know, the Marshall decision was extremely complicated. It affects many departments, not just fisheries.''

The federal government is looking at ''a number of options'' to respond to the judgment, Dhaliwal said.

Wendy Sailman, a federal Justice Department spokeswoman, wouldn't discuss the federal government's legal options.

Reform MP John Cummins is calling on the federal government to apply to the Supreme Court of Canada to suspend the judgment and rehear the case.

Legal observers said the chances of either measure occurring are slim to none. Rehearings are granted usually only if new evidence comes to light, and there is no recent memory of a Supreme Court ruling being stayed after it comes down.

The court sometimes provides for a window of time before its rulings kick in to allow governments to prepare. That was not done in the Marshall case.

John McEvoy, who teaches aboriginal law at University of New Brunswick, said such a condition would have diminished the treaty right.

Native and non-native officials have to agree on what that means, but aboriginals should take the lead since fishing limits set by native leaders are More likely to be obeyed than those imposed by Ottawa, he said.

''This is a right that belongs to the Mi'kmaq nation and the Maliseet nation,'' said McEvoy.

Defining who is a Mi'kmaq or a Maliseet will be another major issue, he added.

About 10,000 people throughout Atlantic Canada claim to be Mi'kmaq or Maliseet but don't live on reserve or have official native status.