Fishing rights

The Toronto Star
Wednesday, September 29, 1999

Two weeks ago, the Supreme Court of Canada delivered an historic decision. It declared that a 1760 treaty gave the Micmac and Maliseet in Nova Scotia and New Brunswick the right to catch and sell fish year round.

The British agreed to this because they also had an interest ''in terminating hostilities and establishing the basis for a stable peace.'' The Micmacs and Maliseets would not have agreed to anything less, the court held.

There is considerable irony in this reasoning. The first casualty of the court's judgment was a ''basis for a stable peace'' between native and non- native fishermen in Atlantic Canada.

The immediate problem is more natives going after lobster. Natives - many of them not even fishers until two weeks ago - are fishing and earning big money on the basis of the Supreme Court ruling. Non-natives are not, on the basis of federal fisheries conservation rules.

Tempers are high. Threats are flying - including threats to burn boats, destroy traps and worse.

Donald Marshall, the Micmac folk hero whose fight to catch and sell eels year- round produced the high court decision, has appealed to native fishermen to pull their pots from the water. ''I don't want to see anyone get killed,'' he said.

Federal Fisheries Minister Herb Dhaliwal is walking a fine line. He has warned that fisheries officers will take action if the native fishermen take undersized lobster or the egg-bearing females on which a healthy stock depends. But his options are limited, not only by the court, but also by the dangerously high emotions on the docks.

The next days will tell the tale. Everyone needs to pull back and agree on new rules to accommodate native and non-native alike.

Regulations there must be, and the idea of regulations should not be a problem. The treaty right, the court said, ''is not a right to trade generally for economic gain, but rather a right to trade for necessaries. Catch limits that could reasonably be expected to produce a moderate livelihood for individual Micmac families at present-day standards can be established by regulation.''

The problem is not the idea but the reality of the fishery.

In 1760, when the British signed the treaties which bind us, you could practically walk across Atlantic and Pacific rivers on the backs of the fish. Trees grew to the horizon. Rivers flowed unpolluted to the sea. No longer.

Today, many fish stocks are near extinction. Each disappearance transfers fishing pressure to the rest.

What is happening with the lobster-hunting Micmac and Maliseet is the future in microcosm - a future with no room to manoeuvre.

We have more fishers. We have fewer fish. The fairest regulations on earth can't change that.

The mathematics are inexorable. There is no recipe for a ''moderate livelihood'' for anyone in more fishers and fewer fish.

There is no basis for ''terminating hostilities and creating a basis for a stable peace.''

There is a basis only for making an unavoidable choice.

We are either going to have fewer fishers, native and non-native.

Or we are going to have fewer fish - and then fewer fishers. And then none at all.

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