Ottawa slow to react to fishery ruling

The London Free Press
Sunday, October 3, 1999

The most volatile issue in Canada has been bubbling for two weeks, with the threat of racial violence just below the surface, without apparent federal government concern.

On Friday, Fisheries Minister Herb Dhaliwal finally declared he wants to negotiate short-term rules that would bring order to an East Coast fishery thrown into chaos by a Supreme Court of Canada ruling.

Short on substance, the plans are wishy-washy appeals for goodwill that may not cut it among natives and non-natives with livelihoods on the line.

The court shares some responsibility for the current chaos by issuing an explosive ruling that it must have known would have far reaching implications. Yet it built in no breathing room for working out solutions.

Newfoundland Premier Brian Tobin properly lambasted the court, arguing " there is a measure of anarchy" in New Brunswick and Nova Scotia and "the Supreme Court of Canada has to take responsibility for that."

Rightly or wrongly, many non-aboriginals believe the court has handed natives the right to strip-mine natural resources unfettered by consideration for conservation. With entire communities based upon the bounty from fishing, logging and hunting, the issue is highly emotional and could explode any time.

On Sept. 17, the Supreme Court of Canada upheld by a 5-2 decision a centuries-old treaty between Mi'kmaq natives and the British Crown.

Dhaliwal has been woefully slow with his Plan B. It should have been in his pocket and ready for use the day the court ruling came down. He admits his department was unprepared because lower courts had sided with the government. That lack of preparation has led to what is essentially an uncontrolled fishery.

The implications are subject to broad interpretation, but appear to give natives the right to fish, hunt and "gather" -- a word interpreted in some quarters to include logging -- independent of government control. An uncontrolled harvest is in no one's interest and government must negotiate a sharing of the resource that ensures its viability.

In 1996, Nova Scotia Mi'kmaq Donald Marshall Jr. was convicted of catching and selling 210 kilograms of eels out of season and without a licence. The ruling acquits Marshall and confirms that Mi'kmaq, Maliseet other aboriginals included in a 1760 treaty can fish, hunt and gather without a licence and year-round.

While Marshall, who once spent 11 years in prison for a murder he didn't commit, asked natives to delay exercising their new-won right, some chiefs encouraged natives to fish. Their current target is lobster, which is out of season for non-aboriginals. Log cutting on Crown land was also reported.

Already some non-native fishers using a boat registered to a status native have been arrested for illegally fishing off Yarmouth. Some non-native fishers have discussed cutting nets, destroying lobster traps and disrupting wharves where native boats are berthed.

The federal government must move quickly to ensure that the rule of law -- one that applies to natives and non-natives alike -- is governed by conservation of the resource.

In this case, the past is important, but the future of the resource is more important. In the spirit of the treaty, out-of-season harvests by natives will have to be allowed, but they cannot be uncontrolled.

Dhaliwal says he won't permit a "free-for-all," but his fishery statement that took two weeks to blow out of Ottawa has all the substance of a dank fog. The fierce emotions in this issue will burn it away all too quickly unless he delivers substance.