Foundering on rocky logic the Supreme Court's ruling in the Marshall Case defies reason

The London Free Press
October 23, 1999

It has been a little more than a month since the Supreme Court of Canada handed down its latest disastrous decision in the area of aboriginal affairs.

The aftermath of the court's decision in the Donald Marshall case has certainly made for exciting TV news. Nearly every night angry lobster fishers can be seen denouncing the Mi'kmaq, the court, the Department of Fisheries and Oceans, the government of Canada and the rule of law.

Last Saturday, for instance, a large flotilla left Yarmouth, N.S., intent on destroying native lobster traps, as their colleagues in Burnt Church, N.S., had done earlier this month. This week, DFO boats were hauling in illegal traps.

Native leaders have made their own extravagant claims. Mickey Augustine, chief of the Red Bank reserve, said the Marshall decision covers "the gathering of rocks, the gathering of minerals, the gathering of wild berries, the gathering of wild flowers, the gathering of timber." Richard Simonson, band councillor at the Eel River Bar reserve, saw even greater implications. "To me," he said, "it's all the natural resources. The way I'd like to see it go is: We take 25 per cent of all natural resources and be compensated for the other 75 per cent." Thus did he instruct the loggers among his people: "Cut as much as you want. It's yours to cut." Meanwhile, the Passamaquoddy band, normally resident in Maine, announced that since they were covered by the same 1760 agreement as the Mi'kmaq, the ruling must also apply to them. They plan to fish scallops from the Bay of Fundy next month.

Evidently neither the Department of Fisheries nor the Justice Department had plans to deal with the enormous consequences of losing in the highest court what they had won in the courts below. And yet, they had fair warning of the bizarre thinking of the Supreme Court, with the controversial 1997 Delgamuukw decision and the equally ill-advised Badger decision before that.

Fisheries Minister Herb Dhaliwal began with a brave declaration. "Let me make it clear," he announced, "there will be a regulated fishery or there will be no fishery at all." This assertion of the undoubted authority of the Crown was quickly followed by supine capitulation, accompanied by pleading and whining. The prime minister said it was just a "new problem," like so many others. The low-profile Minister of Indian Affairs and Northern Development, Robert Nault, has scarcely appeared above the horizon except as a lobbyist for Indian timber-poachers.

Of course it is wrong for the Yarmouth and Burnt Church fishers to destroy the property of Mi'kmaq or of anyone else. No doubt the grandstanding of native leaders is an unseemly spectacle. Certainly Canadians have grown accustomed to prevarication and spinelessness from the government on native issues. Even so, when it comes to assigning responsibility for increasing distrust, animosity and outright violence between native and other Canadians, the lion's share lies with the Supreme Court of Canada.

In the present case, the court decided that a 1760 agreement between the British government and the Mi'kmaq, which included a provision that the former would provide trading posts, called "truck houses," for the Indians, meant that today Indians could fish without a licence and trade with private individuals. To their credit, Justices McLachlin and Gonthier said this stretched the 1760 agreement unacceptably far. But they were outvoted, 5-2.

The majority followed the logic of Justice Binnie. First, according to him, the provisions of the 1760 deal were subordinate to the "underlying negotiations" that produced a "broader agreement" than actually was contained in the document. Since the lower courts could not see such subtleties, they failed to give "adequate weight" to the perspectives of the long dead Mi'kmaq. The Supreme Court, apparently gifted with second sight, accorded Mi'kmaq views adequate weight and so discerned the true spirit of the underlying agreement.

To do so, they ignored the actual historical context -- guerilla war and its expediencies -- and reaffirmed a doctrine of its own invention, that the "honour of the Crown" must prevail. Alone in all creation, the court could determine what is "honourable," and so could also create a standard hitherto unknown to law: the Mi'kmaqs had a right to a "moderate livelihood." How this fantasy could be translated into fishing regulations, the court neglected to say.

The self-aggrandizing logic of the court is dangerous on several counts. It has worsened already delicate relations between natives and non-natives all across Canada. It has provoked otherwise law-abiding Canadians into acts of lawlessness. Perhaps most important, the long train of irresponsible decisions, of which Marshall is arguably the worst, has brought the administration of justice itself into disrepute, and the court into contempt.

Barry Cooper is a professor of political science and David Bercuson is a professor of history at the University of Calgary. Their column appears Saturdays.