Fisheries and Oceans: Minister Dhaliwal Provides Update Statement on Marshall Case Ruling

Canadian Press
Friday, October 1, 1999

OTTAWA, ONTARIO--Herb Dhaliwal, Minister of Fisheries and Oceans Canada, has issued a Statement on the decision of the Supreme Court of Canada in the Marshall Case.

Following is the text of his statement.



As you know, two weeks ago the Supreme Court handed down its decision on the Marshall case. I want to reassure you that we respect the Supreme Court decision. Whatever action we take, whatever decisions are made, they will be in the spirit of the judgement.

For the past two weeks there has been much confusion and tension. But, along with this uncertainty, there has also been good will and restraint.

I applaud those who have led the call for calm, for restraint, and for patience -- your leadership has been invaluable, and we know that we can count on your continued support, and all communities working together.

This issue is my top priority. I believe that through the cooperation and dialogue that has taken place between all groups, aboriginal and non-aboriginal alike, we have made positive steps towards clarifying this complicated situation.

This has been an extremely difficult time for so many. I understand the fears, and that we are all facing uncertainty. But we must remember that we share many goals -- conserving the resource, respect for the law, ensuring access to the resource for all, and producing certainty. This step today will not give us all the answers, but it will be a positive step towards reaching these goals.

As I've said over the past two weeks, we must not do what is easiest, but what is right. We will figure this out, but it won't be easy, and it won't be immediate. It will take time, and it will only happen if we work together.

Since the Supreme Court announcement of September 17, the interpretation and assessment of what it means in practical terms has been a preoccupation for me personally, and all who have an interest in the Atlantic fishery.

While there are many outstanding issues which are not yet resolved, the dimensions of the judgement as it pertains to the fishery, are becoming clearer.

My intent today, as the Minister responsible for the conservation and management of the fishery, is to explain our approach as we move forward to give effect to this judgement in a step by step and responsible manner.

First, let me summarize what we understand about the judgement.

The Court has affirmed that the beneficiaries of the Treaty have a right to, among other things, fish, hunt and gather, and trade the products of these activities for "necessaries".

Translated into modern terms, the judgement indicates this right entitles the beneficiaries to have the opportunity to gain a "moderate livelihood" from the exercise of their fishing, hunting and gathering activities.

The Court has also told us that the right is limited; it does not extend to the open-ended accumulation of wealth, nor does it provide for an unregulated harvest.

While the Court has made it clear that there is a Treaty right to fish, it has also made it clear the exercise of the right is subject to regulation by Government. Catch limits that would reasonably be expected to provide a moderate livelihood can be enforced without infringing the Treaty right.

There are many considerations that will be central to our efforts as we move forward in concert with all parties.

For example, we consider this to be a communal right and not an individual right. To be clear, even if the right is exercised by individuals, it is for the benefit of the collective.

Another issue is fundamental to the interpretation of the judgement - in order to accommodate the Treaty right we must understand who are the current beneficiaries of the right.

The Supreme Court of Canada's judgement indicates that the Treaty applies to the Aboriginal communities that best represent the "modern manifestation" of the original signatories.

We will start to work initially with Bands on issues related to Treaty eligibility so that enforcement measures can be taken with regard to fishing activities beyond the scope of the Treaty right. We will also talk to other organizations to clarify this matter.

I will be instructing my staff to take enforcement action against fishing activity of those who are not the beneficiaries of the Treaty.

We now need to focus on putting in place a process that will allow us to accommodate the Treaty right. We will involve in this process all who are directly concerned with the sustainability and viability of the Atlantic fishery.

Through this process, we will continue to develop a more contemporary relationship among government, Aboriginal communities and the traditional fishing sector. That process must take a long-term view. It will not be quick or easy. It will depend on good will, mutual respect and a shared commitment to conservation and sustainability of the resource.

I will not attempt to place timeframes on this process -- this is too important to rush, but I know that the task will not be completed in days or even weeks. This will be a significant challenge for all of us.

In developing the new framework for the Atlantic fishery, I will be guided by the following principles:

First: Conservation

Future well-being of the fishery resource will not be compromised; fishing arrangements must be designed to ensure, above all, conservation requirements will be respected. As Minister, I have the responsibility to protect the resource. Actions that jeopardize conservation will be addressed through appropriate enforcement response.

Second: Fairness

Fisheries must be managed in a manner consistent with the Marshall decision. In developing the framework for the fishery, the government will be sensitive to the impacts on individuals and on the viability of the commercial fishery. We will, as part of the process, carefully consider the impacts on those directly and most affected by changes.

Third: Transparency

The process of dialogue and negotiation will be conducted in an open and inclusive manner to avoid uncertainty and surprise.

Fourth: Partnership

As we proceed, my Department will work collaboratively with Aboriginal communities, the commercial fishing sector, Provincial governments and other federal Departments.

Having spoken about the long-term, I am also keenly aware of the immediate need for an orderly fishery.

There are questions that cannot await the conclusion of our broader consultations. The rights affirmed by the highest Court of the country apply now.

To ask those who have awaited that decision for so long to simply forgo legitimate opportunities to begin exercising rights that have been affirmed by the Court, is asking too much. However, this fishery must be conducted in an orderly and regulated manner, consistent with conservation. I will not allow a free for all on the water.

Consultations will begin immediately with Bands and other fishing organizations with a view to reaching agreement quickly on short term interim fishing arrangements. Our aim is to ensure that Treaty beneficiaries have access to the resource in a manner that is consistent with these objectives. We will take into account the interest of those who may be directly affected.

I want to state very clearly that such interim arrangements will not influence or prejudice the outcome of the longer-term process. Meetings are already being arranged and we will proceed as expeditiously as possible.

Although we do not have answers to all the questions today, we are making progress. We respect the Treaty right for access to the fishery.

We have clarified who are the beneficiaries of this Treaty right. We are initiating as of today a short and long-term strategy to manage this decision. We have outlined the authority of the federal government to regulate this fishery and ensure that conservation is not compromised.

Every challenge is an opportunity. The opportunity here is for all of us to demonstrate some of the values that make this country great: our tolerance, our generosity, our willingness to work together, and our respect for the law and the Supreme Court.