Burnt Church could draw on American court cases
N.B. law professor offers fishing dispute view

Daily Gleaner / Summit News Service
Thursday, October 12, 2000

SAINT JOHN - A series of American court decisions dealing with the treaty rights of a Wisconsin Indian band provides a valuable example for parties trying to settle the Burnt Church lobster dispute, says a New Brunswick law professor.

Speaking to members of the Canadian Bar Association in Saint John Wednesday, professor John McEvoy delved into a paper he wrote that will be published in next month's issue of the National Journal of Constitutional Law.

In it, he presents evidence that the same issues being wrangled over by governments and aboriginals in New Brunswick were already dealt with in Wisconsin in the 1980s and early 1990s.

``Why is the Wisconsin example important?'' he asked. ``It's a similar example of an old document suddenly resurrected to establish treaty rights.`

In the 1999 Marshall decision, the Supreme Court of Canada used a 1760 Treaty of Peace and Friendship between Governor Charles Lawrence and Indian chief Paul Laurent of the LaHave tribe to establish that today's Maliseet and Mi'kmaq natives have an implicit right to hunt, fish and gather to support a moderate livelihood.

But even before that decision, the Lac Courte Oreille band of Chippewa Indians in northwestern Wisconsin successfully argued in the American court system that treaties signed in 1837 and 1842 gave them hunting, fishing and gathering rights outside their reserve area.

After the landmark 1983 ruling, court litigation over a 10-year period better established the nature and scope of the Chippewa treaty rights.

In one decision, the U.S. Court of Appeal found that U.S. President Zachary Taylor violated the natives' treaty rights in 1850 when he ordered them removed to neighbouring Minnesota because they ``had not misbehaved by harassing white settlers.`

Like in the Marshall case, the U.S. Court of Appeal was asked for a clarification of its original decision, and in 1985 it stipulated that the native treaty rights did not extend to privately held lands.

It even went a step further, stating that the native right to gather resources could be limited for public safety or conservation reasons. Professor McEvoy points out the Canadian courts have consistently echoed the same idea.

Subsequent court decisions established that the Chippewa were entitled to harvest a specific number of different species of flora and fauna, including 21 mammals, nine birds, 11 fish and 236 plants central to aboriginal culture.

Timber rights were not part of the equation because government lawyers successfully argued that natives traditionally used trees for sap, bark, branches, leaves, needles and roots, and did not fell entire stands.

To calculate a moderate livelihood by today's standards, the courts created a baseline. An economist from the University of New Mexico established a poverty line for natives in Wisconsin, then calculated the amount of harvesting needed for all the families to reach that measure.

He came up with a figure of $22-million US, even though the courts estimated that the total value of the harvest of resources allocated to the natives was $18-million US. In essence, the courts said that the government was not responsible for disappearing resources.

However, the courts also stated that the government could not lease its lands into private hands to limit the native resource allocation.

The U.S. Supreme Court subsequently issued a ruling stating that the total harvest of the plants and animals in question should be divided equally between native and non-natives of the area, unless the natives already had enough to make a moderate living.

This, in effect, settled the question of who should get what. At the time of the treaties, natives outnumbered white settlers three to one, but by 1970 non-native sport fishermen in the state outnumbered natives by the hundreds of thousands.

Professor McEvoy said that today, the Chippewa band and the government run their own conservation and management plans for hunting and fishing.

This has apparently led to some flare-ups, but nothing as bad as in Burnt Church.

``It's not a happy system, and it's not efficient,'' he suggested.

Natives in Wisconsin have to carry two permits to harvest anything -- one to show the band's conservation officers (who get funding from the U.S. federal government) and one to satisfy officers with the State of Wisconsin.

``It's certainly not as co-operative as we would have here in New Brunswick,'' he said facetiously, prompting laughter from the small audience of lawyers at the Union Club uptown.