A right so wrong

The Ottawa Citizen
Tuesday, September 21, 1999

Donald Marshall's latest victory in the Supreme Court -- a decision that declared that a 240-year-old treaty gives most Maritime aboriginals a right to catch and sell fish -- has troubling implications that the federal government must not ignore.

The right affirmed in the court's decisions sounds modest enough. According to the court, the Micmac can catch and sell fish to support a ''moderate livelihood'' including ''food, clothing, and housing supplemented by a few amenities.'' But Nova Scotia's fisheries are already being used to the greatest extent possible by commercial and sport fishermen. Increasing the net catch risks a conservation disaster.

The Supreme Court, though, waved this concern away by noting that the right to fish is limited to that required for a ''moderate livelihood.'' The federal government can limit the harvest to that level, and, the court implied, that would solve conservation worries.

With respect, that's nonsense. The definition of ''moderate livelihood'' is actually a good description of the modest return of a great many non-aboriginal fishermen -- particularly when they have to buy expensive licences to fish lobster, for instance. The decision gives most of the 12,000 aboriginals of Nova Scotia the right to fish commercially to roughly the same extent as the province's smaller-scale fishermen -- without paying the licence fees. That's an attractive offer that could substantially boost the numbers of fishermen and fish caught.

Crucially, the treaty right of Nova Scotia Micmacs to engage in small-scale commercial fishing is, like all treaty and aboriginal rights, protected by Section 35 of the Constitution. That means that in any allocation of the fishery, the Micmac right has to be satisfied first.

The result is a lousy choice: Either allow total catches to increase and threaten fish stocks, or push existing fishermen out to make room for new aboriginal fishermen.

This is far from a unique situation. To take just one example, increased aboriginal harvesting rights on the Great Lakes led the province to quietly buy out commercial fishermen, creating harvesting room for new aboriginal fishermen.

Despite the inevitable hard feelings these decisions foster in the small communities affected, governments have been able to keep the conflicts over aboriginal hunting and fishing rights quiet, or at least locally contained. But buy-outs can only work in small, isolated conflicts, and clashes over natural resource are proliferating.

Some 334 treaty cases are being litigated, many involving resource claims that not only include hunting and fishing but also logging and mineral rights. From fishing in the Fraser River to hunting in Algonquin Park, few regions will be unaffected.

At some point, the federal government will be forced to acknowledge these resource conflicts and debate the questions they raise. Do we risk social conflicts when non-aboriginals in poorer, rural areas are eased out of natural resource industries? And how will it affect social cohesion in the longer term to have communities where access to natural resources depends on ancestry?

Ultimately, these questions force us to look at the legal status of aboriginals, their relationship to other Canadians and the state. This is precisely why governments have dealt with resource questions so quietly.

Governments have tried to settle aboriginal questions behind closed doors. With resource conflicts spreading, that will not only be unfair but increasingly impossible. Whether governments like it or not, there will be frank talk about aboriginal issues.