Ottawa’s native agreements seen attempt to reduce rights

By JIM DAY
The Guardian
Monday, April 9, 2001

The federal government is trying to sell aboriginals short on their fishing rights, says a legal expert on aboriginal treaty rights. 

Bruce Wildsmith says Ottawa has a strategy designed to pressure aboriginal communities to buy into short-term agreements at the potential cost of watering down rights granted in a Supreme Court ruling in 1999. 

Wildsmith successfully represented Mi’kmaq Donald Marshall in that high court ruling, which upheld 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. 

In February, the federal government outlined a plan to address the controversial ruling, calling for 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. 

“They have split the process up, which leaves a gaping hole in the middle, which provides apparently either minister with the jurisdiction to discuss and negotiate with the Mi’kmaq people short-term rights based access.” 

Wildsmith sees Ottawa trying to negotiate individual deals that could short-change each of Atlantic Canada’s 34 First Nations affected by the high court ruling. 

He says the government appears to believe that with many of the aboriginal communities in desperate financial straits unemployment sits at close to 90 per cent short-term solutions can be pitched successfully. 

“They’re counting on that financial pressure being enough to have people make those short-term agreements and then they want to do it on the basis that there will be some possible prejudice in the future,” he said.

“In the long-term then, you don’t have any rights-based access (to fishing). Every time you want to do it, it’s going to be potential harassment, charges and litigation.” 

The Atlantic Policy Congress of First Nation Chiefs, which represents Atlantic Canada’s 34 First Nations, seeks assurance from Ottawa that interim fishery agreements will not define the Marshall Supreme Court of Canada treaty rights in any way. 

“The aboriginal side has said ‘OK, if it’s not going to be about our rights then we want to make sure that it’s fully not about our rights, that we can sign these agreements and have no impact on the issue of our rights, now and in the future,” explained Wildsmith. 

“What we’re saying is ‘you (the federal government) either want a rights-based agreement and then we’ll talk about the rights and go through this justification process or you want an interest-based agreement. If you want an interest-based agreement, than it’s not about rights.” 

He says the agreements could be based on trying just to resolve the uncertainties so that people are going to know what is going to go on for this fishing season.

“The essence of the approach to the agreement would be that each side has an interest in resolving these uncertainties so the aboriginal people know they won’t be hassled and non-aboriginal people will understand the limitations on how much they are going to engage in.” 

The agreements, he added, should also make clear what the fisheries authorities are going to enforce. 

Wildsmith, a professor at Dalhousie University Law School since 1979, was in Charlottetown Thursday delivering a public presentation entitled “After Marshall (No. 1): Of Law, Power, and Politics.” 

The talk, sponsored by the Law Foundation of Prince Edward Island and the University of P.E.I., was part of the Chief Justice Thane A. Campbell Lectureship in Law.