Access to the Fisheries by Rights or Agreements? Legal Beagles Issue Strong Warning to Atlantic Chiefs
TEHALIWASKENHAS – BOB KENNEDY, Oneida Publisher
Turtle Island Native Network
Monday, February 26, 2001
Skepticism is mounting following the flow of the many words from Fisheries Canada, Indian Affairs and federal officials who recently tried to apply a fresh coat of ‘the paint of optimism’ onto the badly beleaguered east coast fishery.
(You can read about Canada’s new plan for the Native fishery at http://www.dfo-mpo.gc.ca/COMMUNIC/Marshall/marshall_e.htm )
Members of the Atlantic Policy Congress of First Nation Chiefs, the powerful political body listened and read, and now are in the midst of strategy sessions – trying to ensure they make the right decisions to protect treaty rights against the “New MacKenzie Process and Fisheries Agreements”.
The interim-fisheries agreement process is being undertaken by Jim MacKenzie, the Canadian Government’s negotiator in the latest round of DFO attempts to cut fisheries deals with east coast First Nations. On the surface it seems to be a reasonable way to resolve disputes and avoid more violent conflict in the country’s east coast fishery.
But in fact, does it really mean this is a serious assault on treaty rights for the Mi’kmaq? Do First Nations have good reason for their alarm over the perceived threats to their rights?
WITH OR WITHOUT PREJUDICE?
The First Nations’ legal advice suggests there IS good cause for concern. “To summarize, the central theme that all Chiefs and Councils should be aware of is this: The federal government through Mr. MacKenzie is attempting to implement their Marshall treaty obligations for the next several years exclusively through 1-3 year agreements. No agreement, no fishing. The government is attempting to establish the practice and precedent that the only way to access treaty rights is through a “voluntary” agreement. Thus, the whole process is “with prejudice” to the underlying rights of the Mi’kmaq, Maliseet and Passamaquoddy treaty beneficiaries”.
First Nations have seen MacKenzie’s written mandate and have Fisheries Minister Dhaliwal’s statement and remarks made on February 9, 2001 when he introduced this year’s split process. His mandate and approach was further elaborated on by MacKenzie at the meeting held with the Millbrook Band Chief and Council at Keddy’s in Truro, Nova Scotia February 23, 2001.
Turtle Island Native Network has learned the meeting was attended by key officials from Atlantic Policy Congress of First Nation Chiefs, Department of Fisheries and Oceans representatives, Chief Lawrence Paul, the Millbrook Council, Millbrook lawyer David English and other Millbrook fisheries representatives.
Native leaders and lawyers wanted to find out early on in this so-called new process, a clear understanding of what the federal negotiator “thought his mandate was and how he was going to go about it”.
As a result of that meeting and what they heard, the legal beagles who watch out for Native interests have issued a strong warning…” all Chiefs and Council in the Atlantic should be aware that this year’s process poses a clear threat to rights under the 1760-61 treaties. Canada is clearly conducting this year’s process as treaty implementation. This makes all the difference in the world. No one should blindly assume that this year’s process is just a continuation of last years”.
The APC Chiefs have been told more than once there is a very big difference between the MacKenzie process this year and last.
“This year, it is crystal clear that the federal Cabinet has given to Minister Dhaliwal, and he in turn has given to Mr. MacKenzie, the mandate to negotiate short-term agreements that are in implementation of the 1760-61 treaties. While the federal lawyers argue that this was also the case last year, there was ambiguity over it and some, including Chief Lawrence Paul, maintain that MacKenzie made it clear to him when last year’s agreements were being negotiated that they were not based on rights and that he had no mandate to negotiate agreements based on rights”.
The federal government contends these negotiations are in good faith, transparent and ‘above board’. But First Nation leaders, armed with legal advice that challenges Canada’s position, are wary of what’s really going on with this ‘new’ fishery process.
Turtle Island Native Network has learned that during a meeting in Truro, Nova Scotia on February 23rd, several people including Chief Paul, pressed MacKenzie over the treaty implementation issue. He said not to get hung up on that concept, but in response to David English he acknowledged that he could not say the agreements would have no “impact” on rights. He said this is a matter for the lawyers, not him, and he was simply there to negotiate access like last year.
His mandate says that one of the key principles according to which he is to negotiate is “respect for the treaties and honouring federal obligations”. His boss, the Fisheries Minister Herb Dhaliwal’s statement on February 9, 2001 when he announced the new MacKenzie process, stated that in the fisheries negotiations, “we intend to respect the treaties that have been signed. We will address our obligations consistent with the Marshall Decision”.
Despite these references, MacKenzie told native leaders he was going to negotiate as he did last year, namely, based on obtaining agreements. He did not want to get into the rights issue. The agreements would be “without prejudice to the positions of the parties” in any other forum, including the long-term Nault/Malloy DIAND-led process; the same “without prejudice” clauses as last year would apply. But Native legal counsel are quick to point out MacKenzie was not prepared to agree to broad “without prejudice” clauses.
More important, as noted by legal counsel MacKenzie was not willing to to add clauses that made sure the new agreements were not in implementation of the treaties.
It was thought to be unrealistic to think that Cabinet would authorize multi-million dollar deals and not count the money as compensation. So the idea of fully without prejudice agreements was not practical, according to MacKenzie.
Native legal reps now can assume that any fisheries agreements with Canada will be with prejudice of some sort. The problem is that the federal negotiator did not seem prepared to get into the range of prejudice that might be suffered by Aboriginal treaty rights holders — beyond compensation.
One of the issues “with prejudice” is Consultation. It’s not unusual for First Nations to be left scratching their heads in trying to figure out what Canadian strategists have in mind or ‘up their sleeves’ when their plans call for consultation. One key legal question is – When is the consultation meter running?
MacKenzie was presented with a paper that acknowledged that the February 23rd meeting was not consultation. MacKenzie refused to sign it or agree to words to that effect. That suggests consultation is now being conducted, from the federal perspective.
In addition, the Chiefs and Councils are being guided by and being advised to be aware of the following:
DON’T BE MISLED
The new MacKenzie process is treaty implementation as far as Canada is concerned. This will be argued in court against any Band or individual who disagrees with agreement approach. Mackenzie is reluctant to say this specifically. But Mr. MacKenzie will not approach the issues on the basis of Marshall rights. He is only seeking practical arrangements for access, etc.
ACCESS RIGHTS – NO LEGAL NEED FOR FORMAL AGREEMENT
The MacKenzie process is based only on reaching agreements. There is no process to negotiate access without signing an agreement. “To get such a process, we have to go elsewhere for that, presumably back to Cabinet. That will only happen if the new MacKenzie process fails to get agreements and the communities put up enough of a protest”. There may be a need for an agreement to get money, but there is no need legally for a formal agreement with MacKenzie to access rights.
The agreements will not have strengthened “without prejudice” clauses. This is a clear problem this year that was not as apparent last year because the new process is treaty implementation.
NO AGREEMENTS NO ACCESS
The present “without prejudice” clauses in the template MacKenzie is now providing contain the same clauses as last year. These do not provide against any of the following:
a. All money provided under the agreement will count as compensation of some kind;
b. The meetings and negotiations during the MacKenzie process will count as consultation;
c. The agreements themselves will legitimize the MacKenzie process as being a reasonable way to implement the rights – the future will be, no agreements, no access.
DOMINO EFFECT OF SIGNING AGREEMENTS WITH CANADA
There is one other very significant issue: one community signing will hurt the other communities. If one community signs an agreement with Mr. MacKenzie, others will be tempted to sign as well. If any significant block of communities sign, those who do not will be isolated. If the majority sign, it will make those that don’t sign look unreasonable. There will be no bargaining power on the Aboriginal side. And “treaty rights will have to be accessed through agreements”.
The more communities that fish by agreement, the more the precedent is established that fishing must be by agreement. It is very difficult for any one to hold out who wants to go fishing without a MacKenzie agreement. The Minister has not amended the legislation. This means that, from Canada’s perspective, all fishing must be licensed. No agreement, no licence. No licence, no fishing. At the end of the day, the only game in town will be to access treaty rights by agreement. The treaty rights will become a right to fish only if one agrees. Then there is no incentive for the federal side to conduct real negotiations, because all they have to do is say no agreement, no access. What looks interim becomes permanent, unless it all is protected by “armed to the teeth” without prejudice clauses. But at the moment, MacKenzie will not agree to strong “without prejudice” clauses, at least in part because he says the Department of Justice and Canada will not agree to them.
The main argument – the main concern of First Nations? The Protection of Treaty Rights! In the words of one legal advisor, “I think this is do or die time over whether fisheries access will in the future be rights-based, or agreement-based”.
So what’s the solution? Legal counsel is “not advocating a First Nations sovereignty-based, go-it-alone approach”. It is clear that, ultimately, the Minister of Fisheries has the constitutional authority to regulate First Nations access. The point is that he has to go about the process in a way that meets the legal requirements for justification.
What can First Nations do to protect their interests and still work with Canada? Fishing plans are needed by each community, and “we should be consulting with him about our proposed fisheries. We have to tell him what we want to do, what our preferences are. We have to ascertain Canada’s legitimate objections, such as conservation, public safety, and undue non-Aboriginal displacement”
In the end, the advice the Atlantic chiefs have received is, “… a federal approach that says “no signed agreement, no fishing”, is not justified”.
The spring fishery is fast approaching!
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