Ottawa sets out deal for First Nations treaty rights 

Two-track process


RICK MOFINA, Southam News
The National Post

Herb Dhaliwal, Minister of Fisheries and Oceans, responds to a question at a news conference in Ottawa yesterday following the announcement of the federal government’s strategy to address the Supreme Court’s 1999 Marshall decision and build a sustainable treaty relationship with Mi’kmaq and Maliseet communities.

(Jonathan Hayward, The Canadian Press)

OTTAWA – The federal government outlined its plan yesterday to address the controversial Supreme Court of Canada ruling upholding aboriginal fishing and hunting rights, with a caution for First Nations who might reject it.

Robert Nault, Minister of Indian Affairs, said it would be “unacceptable” for a First Nation to unilaterally exercise its definition of treaty rights and ignore participating in the government’s new strategy.

Mr. Nault and Herb Dhaliwal, Minister of Fisheries, officially announced a two-track process to address the so-called Marshall decision. One track, under Indian Affairs, is a long-term process aimed at reaching agreements on treaty issues and economic development. The other, under Fisheries, is aimed at expanding native access to the East Coast fishery through agreements with bands that can last up to three years.

The government’s plan arises from a Sept. 17, 1999, high court ruling in the case of Mi’kmaq Donald Marshall. It upheld the 1760 treaty rights allowing Mi’kmaq and Maliseet bands to earn a moderate livelihood through hunting, fishing and gathering, subject to federal regulations.

Since the ruling was delivered, Atlantic Canada has undergone turmoil near Burnt Church, N.B., where a small impoverished native community has rejected the federal government’s overtures to implement the decision.

Yesterday’s announcement offered few details of the plan, including the cost. Cabinet has reportedly approved $500-million in funding for the process.

Tom Molloy, known for negotiating such landmark deals as the Nisga’a agreement and the framework that established Nunavut, was named federal negotiator for Indian Affairs on issues relating to treaties, self-government and aboriginal access to other resources.

Mr. Nault said it was premature to conclude if other resources included oil, gas and timber, adding, “I’m not ruling anything out.”

Under the Fisheries strategy, federal negotiator James MacKenzie will continue negotiating agreements with bands to increase native access to the fishery.

The agreements could reach three years, surpassing one-year terms negotiated last March for 30 of the 34 First Nations affected.

Mr. Dhaliwal said he was confident native communities would see the benefits of signing on to the new deals, “which are without prejudice” to any future negotiations between the federal government and First Nations.

That assurance must be clear and carved in stone, according to the Atlantic Policy Congress of First Nation Chiefs.

“These interim fishery agreements do not and will not define Marshall Supreme Court of Canada treaty rights in any way,” said Peter Barlow, a co-chairman of the congress, which represents Atlantic Canada’s 34 First Nations.

“If government does not see it like this, there will be no agreements,” said Lawrence Paul, the other co-chairman. If it doesn’t, Mr. Paul stressed that Atlantic Canada natives “will fish solely under the authority of the treaty.”

Mr. Nault cautioned First Nations contemplating ignoring negotiations with the federal government to unilaterally fish and define for themselves their treaty rights.

“I don’t think that’s appropriate, nor acceptable to the government of Canada,” he said. “And again, very respectfully, we are sitting here asking for them to be part of the overall solution.”

Mr. Dhaliwal added that he favours spending money “on negotiations rather than enforcement.”