No retreat from Burnt Church
Memo to Mr. Dhaliwal: The time has come to pull out the traps

National Post
Wednesday, September 20, 2000

As Bob Rae stepped on to the Burnt Church reserve in New Brunswick last week, he would have been greeted by a wrenching sight: a community chronically ravaged by 85% unemployment, a barely functioning infrastructure, addiction and suicide rates so high Canadians seem hardly able or willing to face them. This is the narrative of the native experience in Canada. It is a story Mr. Rae knows only too well.

But as he looked to the shores off the reserve, to Miramichi Bay, Mr. Rae would also have seen, spread in its shimmering waters, the hopes of this tiny community for a way out of the spiral of dependency and despair. It is the hope created by last fall's Supreme Court ruling confirming the right of the Mi'kmaq and Maliseet nations to earn a "moderate livelihood" through their own commercial fishing efforts.

It is easy in this context to see how the core issue at stake in Burnt Church can be cast as one of native rights and entitlements, of a people too long denied, and a government too reluctant to give. But it is no longer about that. It has become, quite simply, about the rule of law, and about the proper role of government in the management and distribution of a public good, in this case a shared marine resource. The difference between the two views is the chasm into which Bob Rae's efforts are bound to fall, but it is not one from which the government can possibly retreat.

Burnt Church natives and their supporters outside Atlantic Canada have wrongly taken the Supreme Court ruling as a licence to an unfettered free-for-all in Miramichi, claiming the Court has granted the right not just to share in the resource, but to manage it exclusive of any other interest.

The Court did no such thing. Rather, it set clear limits on the right, providing for the Mi'kmaq and Maliseet to earn a "moderate" livelihood, exercised through a communal benefit, and which is "always subject to regulation." The majority Court was in fact insistent on this last point, writing again in paragraph 64 of the ruling that the right was to be "exercised at the absolute discretion of the Minister."

It so defined the treaty right, it said, because rights do not exist in a vacuum, and the rights of one individual or group are necessarily limited by the rights of another. Clearly, while the treaty right to fish is limited, the government's obligation to set the terms is exclusive and broad.

So it must be. The bounty in the sea is a shared resource. The government retains a bedrock duty to protect the resource for the benefit of all Canadians, and to allow for its fair distribution. If individuals are allowed to extract a public resource anywhere, anytime, by any means, there would be little left for those others who depend, or will come to depend, on the public resource for their own livelihood. Individual rapacity would be rewarded at the expense of the collective interest. That this would be unsustainable is only common sense. The Supreme Court itself pointed out that "absolute freedom without any restriction necessarily infers a freedom to live without any laws. Such a concept is not acceptable in our society." Rights do not exist in a vacuum.

In this case, the rights of traditional fishers and future generations must also be accounted for. Government cannot countenance one set of rules for a native fishery and a separate one for non-natives where the resource is shared, and the behaviour of some individuals materially affects the circumstance of others. So what is Herb Dhaliwal, the Minister of Fisheries and Oceans, to do? Some advice from the cheap seats. Mr. Dhaliwal must:

- Hang tough. Notwithstanding Mr. Rae's decision yesterday to remain in Burnt Church despite his self-imposed deadline, the last hope for reason to prevail washed away with the natives' insistence to continue their illegal fishery unabated. Compromising on the fundamental principles at stake -- the rule of law, and the government's obligation to regulate and enforce -- would place at risk the 29 other agreements Mr. Dhaliwal has signed with those bands willing to take advantage of a commercial fishery in a responsible and sustainable way. Moreover, it would undermine his department's ability to manage the fishery elsewhere.

- Take accelerated enforcement action. The fishing effort on the bay, in violation of all the rules, has surely exceeded the 40,000 pounds Fisheries scientists said the stock can currently manage. Knowing that the individuals fishing, seeing thousands of dollars coming into their pockets, harbour no intention of compromising, of vitiating short-term personal gain for a long-term common good, the time has come to put a stop to the entire fishing effort.

This will be tough. Pulling all the traps -- a logistical challenge to be sure -- runs the risks of spawning sympathy protests across the country, and skirmishes on the water. Not taking uncompromising action, however, runs the greater risk of inviting violent confrontation with non-native fishers. Violence is never acceptable, and Mr. Dhaliwal needs to be commended for keeping a clear head and a calming demeanor. But after months of dialogue he is left with little choice.

Any doubt about the Burnt Church band's bad faith participation in the mediation process was removed yesterday. Their offer to clear the unauthorized traps only once the lobster have migrated from the bay is at best a hollow and duplicitous gesture. They will only stop flouting the law, they say, when there is no profit to be gained by it.

Not taking precipitous action now will mean only that the issue will remain unresolved into the spring season, festering over winter, and emerging more intractable in a few months.

- Reiterate his considerable efforts in integrating native communities into the Atlantic commercial fishery. Mr. Dhaliwal has pledged $150-million to bring into the fishery the 2,000 Mi'kmaq and Maliseet expected to seek entry, buying licences for transfer to communities, buying boats, gear, providing training and building new wharves. This represents some of the most significant federal involvement in aboriginal community development on the East Coast. He has done it with little fanfare, and to even fewer accolades.

As he touched down into the brewing storm last week, Bob Rae likely never believed this assignment to be a nice sail on a breezy afternoon. But as he prepares to leave Miramichi in a few days, the poverty and chaos as unabated behind him, he will no doubt harbour a tinge of regret on the opportunity lost, and a secret sense of relief that he is after all not the Fisheries Minister. It is not, as he's come to appreciate, a job for the squeamish.

Titch Dharamsi is a former senior adviser to the federal government, and a Fellow of the Cornell Institute for Public Affairs in Ithaca, New York.