Native-rights cases to cost `multiple billions'
Lawyer expects next claims will be for oil-gas royalties

Canadian Press
Thursday, August 24, 2000

HALIFAX - The Donald Marshall decision - the court case behind the native fishing conflicts on the East Coast - is just the beginning of massive and expensive legal actions on native rights, experts said yesterday.

Three aboriginal law experts discussed fallout from the Supreme Court of Canada decision during a symposium at the Canadian Bar Association's annual meeting.

``Settlements and judgments of past and ongoing illegal expropriation of native rights will cost multiple billions of dollars,'' said Stuart Gilby, a Halifax lawyer who represents aboriginal clients.

The September, 1999, Marshall decision affirmed fishing, hunting and gathering rights - unlicensed and year-round - for Mi'kmaq and Maliseet peoples on the East Coast.

A clarification issued later said the right was subject to federal regulation.

Gilby said natives will continue to rely on courts because politicians and bureaucrats consistently ``abandon'' their duty to honour native treaties.

Fish, lobster and logging are just the beginning. He said he expected native claims for royalties on Western Canadian gas and oil would amount to between $6 billion and $10 billion.

Heather Treacy, a Calgary lawyer who represents resource companies in aboriginal cases, said the Marshall case introduced the idea that courts could rely on outside evidence - the testimony of elders and historians - to interpret 250-year-old treaties.

Treacy said the Marshall case - and its broad interpretation of the 18th-century treaties - leads down a road of rising costs and complications.

Treacy said it will be hard for the parties to agree on the definition of earning a ``moderate livelihood'' - a term the high court used to describe the amount of fishing to be allowed. ``It's not an easy question . . . there will be confusion.''

John McEvoy, a law professor from the University of New Brunswick, said he thinks the Marshall decision will lead to costly court battles.

McEvoy reported that courts in Michigan also granted natives - the Chippewa First Nation - the right to harvest resources and a moderate livelihood but this led to complicated debates over the meaning of words.

The true lesson from the increasing costs and complexity of the experience in the United States is ``Don't go there. Don't go to the courts,'' he said.

Meanwhile, on the waters of Miramichi Bay, things stayed quiet but tense yesterday, as native fishermen from Burnt Church reserve in New Brunswick continued to trap lobster and openly defy the Canadian government.

Just hours after a dangerous clash a day earlier that injured a fisheries officer, aboriginal fishermen were setting and checking traps as a helicopter carrying federal observers buzzed overhead, monitoring the situation.

``I'm expecting another confrontation within 48 hours,'' James Ward, a spokesperson for the reserve.

Fisheries officials are annoyed, claiming Burnt Church fishermen increased their fishing effort right after agreeing to start talks with a federal mediator. Burnt Church natives denied the charge; they are angry that fisheries officials immediately started fly-overs of the bay, counting traps.

``They seem to be mad that we caught them doing what they weren't supposed to be doing,'' said fisheries spokesperson André Marc Lanteigne.

Ward said the reserve considers airspace above the community and the waters around it sovereign territory.

``Intelligence-gathering always precedes action,'' added Ward, a U.S. military veteran trained in elite reconnaisance divisions.

``For us, the action here is (federal) raids'' to seize traps.

``So there is concern about that.''