No end in sight
Even if Bob Rae gets a ceasefire today in Miramichi, the struggle over fishing rights will continue, says veteran treaty negotiator

The Globe and Mail
Tuesday, September 19, 2000

Today is the deadline that former Ontario Premier Bob Rae has set for seeing progress in the Burnt Church fishing-dispute talks, or else he will quit as mediator. But resolution among the Mi'kmaq of Burnt Church, the union representing non-native fishermen and the Department of Fisheries and Oceans won't come easily. While the 1999 Supreme Court of Canada Marshall decision did much to recognize and clarify the Mi'kmaq treaty right to fish, it also created considerable ambiguity with regard to the decision's implementation.

At the heart of the Burnt Church conflict is whether the DFO's limit on the number of lobster traps is reasonable and justifiable according to the rights of the Mi'kmaq in their 1760 treaty with the Crown. In the past few weeks, Mi'kmaq fishermen have continued to set lobster traps, obstruct fisheries officers and erect road blocks. The DFO's confrontations with them have escalated to serious incidents on the water, including the ramming and sinking of fishing boats, and the arrest of aboriginal leaders.

Both parties say the law is on their side: The Mi'kmaq claim that the Marshall decision has affirmed their right to regulate their fishery, and DFO claims that it possesses the authority to regulate the fishery so long as it is justifiable according to the Marshall decision.

When it ruled last year on the case of Donald Marshall, the Mi'kmaq who insisted on his people's rights to fish, the Supreme Court specifically limited its decision to the facts at hand. It indicated that the federal government has the right to regulate the fishery, but it was equally firm that Ottawa's authority to regulate treaty rights is limited to those actions that can be "justified."

The definition of "justification" is unclear. But other court decisions indicate that it requires a compelling and substantive legislative objective, such as the conservation of a natural resource. In Sparrow (1990), Adams (1996), and Delgamuukw (1997), the Supreme Court placed the responsibility to sort out aboriginal peoples' rights squarely on government; in Marshall, it once again has asked government to get its house in order. However, it also said that if government decision-making is done in a clear and transparent manner, then aboriginal and treaty rights can be justifiably infringed.

Hence, Mr. Rae's efforts to bring transparency to questions such as how many traps are being set. Reportedly, the mediator has indicated that an aboriginal fishery on Miramichi Bay this fall season would threaten conservation of lobster stocks and should not be allowed. But he has also insisted that first nations need improved access to the local inshore fishery.

If it seems that transparency and clear information are starting to break up the logjam, remember that the non-aboriginal fishery workers' union last weekend told Mr. Rae that it simply will not accept a separate, commercial, first-nations-run fishery.

Mediation implies compromise by all parties, so it's difficult to see how compromise can be reached. The Supreme Court told the DFO that if it acts -- if it sends its officers onto the waters -- it must be because it is certain of what it is doing. In this, the court left no ambiguity and therefore no room for compromise. (Conversely, if DFO cannot justify its actions -- for example, if it cannot demonstrate that lobster stocks are in decline -- then it should not be sending out its boats.)

There is also the question of first nations self-regulation of fisheries. The Supreme Court has not yet dealt with this issue in a broad sense. The Burnt Church Mi'kmaq want to come up with their own regulatory scheme and set their own limits. While unauthorized actions by the Mi'kmaq may win public attention, they won't result in any substantive affirmation of rights. First nations cannot ignore the fact that -- if the DFO can provide justification -- it can exercise its jurisdiction within the scope of the Marshall decision.

In order to test the limits of self-regulation, the quarreling parties must either return to the Supreme Court or negotiate a new treaty.

Some have suggested that the answer for Burnt Church is to be found in the interim fisheries agreements that the DFO has negotiated elsewhere in Atlantic Canada. I disagree. Interim agreements don't deal with that persistent question: What rights, if any, do the Mi'kmaq possess to self-regulate their share of the fishery?

Other observers have suggested that a resolution to the Burnt Church conflict could be found in replacing the 1760 treaty by negotiating a modern one. Ottawa tends to like the option of negotiating modern treaties, but first nations that haven't yet exhausted other legal remedies may be reluctant to go this route. By turning too soon to negotiation, many first nations believe they run the risk of fettering their rights.

So, for the short term, we are back to Mr. Rae. Let's assume that he can reach a compromise with the Mi'kmaq, the DFO and the non-aboriginal fishermen. Any settlement is only the beginning of the process of negotiating a broader treaty with the Mi'kmaq.

The comprehensive claims of Northern Canada and the recent Nisga'a Treaty in British Columbia underscore the immense complexity and limitations in negotiating aboriginal rights. No one knows precisely how to fully implement a modern treaty, or, indeed, what one actually means. There have been a number of judicial decisions relating to the James Bay and Northern Quebec Agreement (1978), and the Nunavut Agreement (1993). The result is a work in progress -- a new legal regime being created under constitutionally protected, negotiated agreements. The effect on the constitutional authority of federal, provincial and territorial governments is not yet fully understood. No easy answers here.

And even if negotiations do progress with the Mi'kmaq, there's still the task of implementation. Burnt Church is just one of many first nations in Atlantic Canada pursuing increased recognition for what it believes to be its rights. For all these people, the way ahead is not simple or easy. Everyone will need a shared understanding of the issues. Everyone must be willing to limit confrontation, to turn to the courts -- where appropriate -- to obtain clear decisions, and to negotiate where necessary.

Mediation buys some time on the waters of Miramichi Bay, and we must support it if it limits confrontations. But it would be a mistake to expect Mr. Rae or any other mediator to resolve everything. Any resolution will only be short term. What's needed is a comprehensive review of how government has interpreted judicial decisions regarding aboriginal peoples. And government must be certain in its authority to enforce the law and justify its actions.

Tom Isaac, who specializes in aboriginal law, is a former chief treaty negotiator for the B.C. government, and was assistant deputy minister in the Northwest Territories' cabinet office responsible for the creation of Nunavut. He now works with the law firm of Clark Drummie in Saint John, N.B.