Marshall Would Still Be Charged Despite Landmark Ruling
Native fishery must still be regulated, DFO official says

By MICHAEL LIGHTSTONE
Halifax Herald
Friday, June 1, 2001

Despite his 1999 Supreme Court of Canada victory, Donald Marshall Jr. would be charged today if he were caught fishing commercially outside the law, a federal fisheries official says.

Paul Sprout said the landmark Marshall ruling recognizes native treaty rights but it doesn’t say aboriginal people can fish for profit without conservation rules being enforced.

“The Supreme Court said that certain aboriginals in the Atlantic (region) have a right to pursue a moderate livelihood, but . . . it has to be regulated,” he said Thursday in Halifax.

“What we have to separate is between tribes and bands that are fishing for food and those that are fishing to sell.”

Dan Christmas, executive chairman of the Union of Nova Scotia Indians, said Mr. Sprout’s comments are indicative of the government’s view of the Supreme Court ruling.

“I think they’ve taken a very narrow interpretation of the Marshall decision,” he said. “That’s been obvious since the court case was decided.”

Mr. Sprout, associate assistant deputy minister for fisheries management with the Department of Fisheries and Oceans, noted the Marshall decision only deals with eels.

But the ruling went on to say, in a broad sense, “the treaty right was to continue to obtain necessaries through hunting and fishing.”

Mr. Marshall was convicted in 1993 of catching eels without a licence out of season and selling them.

The Supreme Court overturned his conviction, ruling natives have the right to make a modest living from fishing, hunting and gathering year-round.

In a 5-2 decision, the court said Mr. Marshall’s aboriginal right to sell fish was cemented in 18th-century treaties signed by the Mi’kmaq, Maliseet and the British Crown.

That judgment triggered a firestorm over fishing rights on the East Coast. A clarification from the Supreme Court stipulated Ottawa has the right to regulate the aboriginal fishery under certain circumstances, such as concerns about conservation.

The court also urged the federal government and native groups to negotiate rather than fight legal battles.

Mr. Sprout was asked at a news conference, called by DFO officials to promote Ottawa’s conservation and enforcement measures, whether Mr. Marshall would be charged today if he went fishing illegally for lobster.

“If he sold those lobsters, yes, he would,” Mr. Sprout said. Mr. Christmas acknowledged he’s surprised DFO would consider charging Mr. Marshall again for illegal commercial fishing.

“That would certainly make a very interesting case,” he said by phone from Sydney.

The federal government spent $13 million last year on enforcement actions in Burnt Church, N.B., and St. Marys Bay, off Digby, Fisheries Minister Herb Dhaliwal said in April.

DFO officials said this week there were 95 convictions for offences off Nova Scotia and in the Bay of Fundy since December. A number of significant fines stemmed from the lobster fishery.

Terry Matheson, a conservation officers supervisor in Digby, said fishery enforcement patrols want to use as little force as necessary.

Though carrying guns and pepper spray, officers try to negotiate with suspected offenders and not provoke confrontations.

Fishing agreements between Ottawa and 34 native bands in Atlantic Canada expired March 31. Two Nova Scotia bands, Glooscap and Pictou Landing, signed new deals in May.

Glooscap, formerly the Horton band, inked a three-year deal while Pictou Landing opted for a one-year agreement. Others are now being negotiated with federal negotiator James MacKenzie.

Some native bands are fishing now without contracts, a DFO spokesman said Thursday.

Andre-Marc Lanteigne said they must harvest with approved equipment and by using proper conservation measures.

He said Ottawa will sanction the activity “as long as we can have an orderly fishery. If the season’s closed and it’s not authorized, it’s not orderly.”

Mr. Marshall, a Nova Scotia Mi’kmaq, first came to national attention for being wrongly convicted and jailed for a murder he didn’t commit.