Of course, Canada must regulate Indian fishery

The Toronto Star[By Richard Gwyn - Home and Away]
Wednesday, August 23, 2000

WHEN THE Europeans came to North America - also to Australia and New Zealand, as well as South Africa but a bit differently there - they operated on the principle of ``terra nullius.''

The land was empty of cities and buildings and ploughed fields and roads and bridges and domestic animals so that - although there were some people here, in small numbers, in nomadic groups - it could be treated as an empty land where the newcomers could do what they wanted.

To describe this as an operating principle is over-doing it. The explorers and traders and trappers and soldiers would have done what they wanted no matter what principles or theories of governance were on the go.

Gradually, and far too late, we have come to recognize this notion was brutal and destructive. It's accepted now, in public attitudes as well as politically and legally, that the rights of the Indians and the Inuit, deriving from the cardinal fact that the land was not empty, that they were here before us and had their own legitimate way of doing things, existed at the time of first contact and therefore continue to exist in today's radically changed Canada.

Out of this has come the concept and practice of aboriginal self-government.

That concept is now at risk of collapsing upon itself. The fact is that while this land was not ``terra nullius'' back then , neither is the reverse true today for the Indians and Inuit. They are not living in virginal, pre-Canada but in contemporary Canada and under its constitution.

Some of the Mi'kmaq at Burnt Church, N.B., are operating on this ``reverse terra nullius'' principle. So are other aboriginal people across the country.

At Burnt Church, the issue is not over the right of the Mi'kmaq to make a ``modest living'' from the fishery, in the phrase of the Supreme Court decision. That's established beyond argument. Nor is it about the scale of the fishery the Mi'kmaq may engage in. Apologists for them have pointed out their lobster traps amount to less than 1 per cent of traps in the region. That's a bit like arguing, ``But officer, I was only going over the speed limit for 1 per cent of my journey.''

Rather, as Noah Augustine, a columnist on aboriginal affairs for The Star and a member of the Mi'kmaq community, has written, the issue at Burnt Church ``has always been about self-management of the aboriginal fishery.''

But that's asking for the impossible. The Mi'kmaq fishery, no differently from the regular commercial fishery, must be regulated by Ottawa on behalf of all Canadians. That the Fisheries and Oceans Department has made regulatory mistakes in the past is irrelevant. That the department must regulate the native fishery with special sensitivity (as it, in fact, has shown by supplying the Mi'kmaq with boats and gear) goes without saying. But it equally shouldn't need to be said that, of course, the department must regulate the Burnt Church fishery.

Our relations with aboriginal peoples are reaching a critical point. The phrase ``self-government'' always was an illusion. What was really meant was self-administration. Self-government in its literal sense would only be possible by political separation, and anyway, it's an impossibility in today's globalized world.

Certainly, the issue is complicated beyond the two versions of terra nullius, the historic European one and today's constructed version by aboriginal leaders. On the one hand, the latter are entirely justified in being deeply suspicious of the effects on them of government by outsiders. On the other hand, aboriginal people often have a terrible difficulty in governing themselves, because the basis for their political legitimacy is the family, not the band or tribe, so that tribal leaders are driven to pick fights with outsiders in order to bolster their authority.

Moreover, about half of all aboriginal people now live totally within Canada in the sense they no longer live on reserves but in cities where, naturally, they must obey the same laws as non-aboriginals.

Careless wording in the original ruling by the Surpme Court has given the Mi'kmaq reason to believe their right to fish encompasses the right to manage their fishery themselves. Careless use of the phrase ``self-government'' by successive governments has reinforced this expectation among aboriginals across the country.

But we are not an empty country. We are all living jumbled up amongst each other. Aboriginal people are distinctive Canadians to whom we have obligations. But, no differently from the rest of us, they are Canadians.


Richard Gwyn's column appears Wednesday and Sunday in The Star. He can be reached at gwyn@inforamp.net