CANADA'S ABUSE OF HUMAN RIGHTS

(EDITOR'S NOTE) -- On 28 February 2001, at a news conference on Parliament Hill, Christian Peacemaker Teams (CPT) released a comprehensive report, entitled "Gunboat Diplomacy," documenting the Canadian government's abuse of human rights at Esgenoôpetitj (Burnt Church, New Brunswick). CPT was invited by fishermen from Esgenoôpetitj First Nation (EFN) to be present during the 2000 fishing season.

CPT Canada Coordinator Doug Pritchard said, "Our observer team was there. For six months last year we witnessed government agents using excessive, even reckless, force against Esgenoôpetitj fishers."

Lena Siegers, a CPT observer, said the government agents "would not engage in a serious dialogue about the Mi'kmaqs' legal right to fish. Then the government began ramming and sinking Mi'kmaq fishing boats. Those scenes went around the world. Is that the kind of Canada we want?"

The report included 22 specific incidences observed by CPT in which government officials violated the human rights of EFN members and failed to deal with EFN in a fair and honourable manner. It also presents the overarching legal and human rights principles behind the conflict in sections on EFN's right to manage its own fishery, government infringement of Aboriginal rights and the use of excessive force. The report extensively cites relevant Canadian and international law.

Among the conclusions presented in the report, CPT called on the Canadian government to "radically alter its dealings with the people of Esgenoôpetitj by pursuing partnership with Aboriginal people instead of domination" and called on all Canadians to "to assist in the resolution of this conflict and the forging of fair and lasting terms for coexistence with Aboriginal people."

Shunpiking Online is reproducing the entire report below.

Gunboat Diplomacy
Canada's Abuse of Human Rights at Esgenoôpetitj


(Burnt Church, New Brunswick)
Christian Peacemaker Teams, February 2001

Acknowledgements

CPT wishes to thank all the people of the Miramichi who welcomed us into their communities, their homes and their lives. We also thank the following for their advice and assistance in preparing this report: Robin Buyers, gkisedtanamoogk, Carwyn Jones, Ron Kelly, Charlie Kennedy, Jean LaRose, Claudette Leblanc, Ann Pohl, Susannah Shantz, and Trudy Watts.

Christian Peacemaker Teams
PO Box 72063
1562 Danforth Ave
Toronto ON Canada
M4J 5C1
ph 416-423-5525
email canada@cpt.org
Web http://www.cpt.org/

Christian Peacemaker Teams (CPT) is an organization committed to reducing violence by "Getting in the Way" -- challenging systems of domination and exploitation as Jesus Christ did in the first century.

A project of the Mennonite Churches, Church of the Brethren and Friends United Meeting and other Christians, CPT has worked in Haiti, the Middle East, Bosnia, Chechnya, Colombia, Mexico, Canada, and the USA. In all locations, CPT responds to invitations from grassroots movements seeking to rectify injustice in nonviolent ways.

We rely on the Biblical witness, the power of the Holy Spirit and the prayers of our church constituency to sustain us in the difficult work of making a just and lasting peace.

GUNBOAT DIPLOMACY

Canada's abuse of human rights at Esgenoôpetitj
(Burnt Church, New Brunswick)


SUMMARY


Christian Peacemaker Teams (CPT) is an international violence-reduction initiative of Mennonites, Brethren, Friends and other Christians. CPT was invited by lobster fishers from Esgenoôpetitj First Nation (Burnt Church, New Brunswick) to be present during the 2000 fishing season in the hopes of helping prevent a recurrence of the violence seen in the previous year's fishing.

In the course of CPT's six months in the area, the team saw a systematic denial by Canadian government officials of the rights of Esgenoôpetitj First Nation (EFN) to fish under its own Fisheries Act. This report summarizes 22 incidents in which the rights of EFN or its fishers were violated by Canadian officials. EFN fishers were harassed and arrested and EFN fishing traps and boats were confiscated. This enforcement of Canada's Fisheries Act, and the over-riding of EFN's right to fish, were often accompanied by an excessive and even reckless use of force. Throughout the conflict, Canada appeared to be unwilling to engage in any serious dialogue with EFN.

EFN says it has an inherent right, a right under its treaties, and a right under international law to manage its own fishery. The government of Canada disputes these rights but is unwilling to refer the dispute to an independent forum.

Canada says it has a right, which is disputed by Aboriginal peoples, to infringe on Aboriginal rights if, and only if, the issue is compelling for Canada, the infringement is minimized, and the Aboriginal people affected are consulted. These conditions for infringement were not met at Esgenoôpetitj and so Canada's actions were illegal under Canadian law.

CPT calls on the Canadian government to stop its violence and the misuse of its enforcement resources and to negotiate the management of the fishery with EFN in good faith on a nation-to-nation basis. CPT also urges the people of Canada to learn the truth about this conflict, to insist that federal leaders resolve it justly, and to work and pray for a prompt resolution.

We hope that this report might both remind Canadians of the mistakes of last year and encourage them to work out fair and lasting terms for coexistence with Esgenoôpetitj First Nation and all Aboriginal people.

RECOMMENDATIONS


The following recommendations are prerequisites for a just and peaceful resolution of the conflict at Esgenoôpetitj.

The first recommendations call on the Canadian government to radically alter its dealings with Esgenoôpetitj First Nation. The second set of recommendations calls on Canadians to take an active role in the resolution of this conflict and the forging of a just relationship with Aboriginal people.

We call on the Canadian government to:

o Stop the violence.

o Negotiate in good faith with the Mi'kmaq people on a Nation-to-Nation basis.

The government must honour the Treaties, the various other international agreements to which it is a signatory, and its own laws. Instead of using intimidation and ultimatums, the government must refer unresolved disputes with Aboriginal people to a mutually agreed independent adjudicator.

3. Stop wasting resources on a disproportionate and inappropriate response.

The DFO used a significant part of its budget in excessive enforcement measures against a small Mi'kmaq lobster fishery. If this money were redirected to conflict transformation efforts and scientific research into lobster stocks, there would be significant progress toward a just and mutually satisfactory solution.

We urge the people of Canada to:

1. Learn about the historical and the present circumstances of this conflict.

CPT found that the Canadians knew little of the background or context for this and similar conflicts between Aboriginal and Canadian peoples. Canadians must learn the truth about the past and the present before they can begin to heal the broken relationships with Aboriginal people and move toward just solutions.

2. Call on our elected federal leaders to implement the above recommendations.

The violence that CPT witnessed during 2000 was done by the Canadian government in the name of all Canadians. People around the world were shocked that this was happening in Canada. If Canadians remain silent in the face of this injustice, they too are complicit.

3. Come together to pray for peace.

In response to Canada's ultimatums and violence, the Mi'maq people called repeatedly for patience and for prayer. CPT supports that call, believing that the prayers of the people are powerful and effective (James 5:16).

1. INTRODUCTION

Christian Peacemaker Teams (CPT) is a violence-reduction initiative of Christians from Canada and the USA. The sponsoring denominations are Mennonite, Church of the Brethren and Friends United Meeting (Quakers) and Christians from other denominations also participate. CPT has placed project teams, at the invitation of local peacemakers, in Haiti, Bosnia, Chechnya, the Middle East, Mexico, Colombia, Puerto Rico, Canada and the USA.

In 1999, Canada's Supreme Court, in the Marshall case, affirmed the treaty right of Mi'kmaq people to a commercial fishery. Fearing that this decision threatened their own livelihoods, non-Aboriginal fishers destroyed Mi'kmaq fishing equipment on Miramichi Bay, New Brunswick in October 1999 and several violent incidents ensued. In response, CPT sent a fact-finding mission to the region in January 2000. The mission heard from Mi'kmaq fishers, First Nations band councillors, non-Aboriginal clergy, parishioners, police and a federal fisheries official. Many people expressed a fear that violence would return with the spring lobster fishery. In particular, fishers from Esgenoôpetitj First Nation (EFN) invited CPT to work with them at reducing that threat of violence.

CPT maintained a 4-6 person team in the area from April 4-June 29, 2000 for the spring lobster fishing season and from August 12-October 30, 2000 for the fall season. The team camped near the shore of Miramichi Bay on the boundary between the western edge of EFN and the village of Burnt Church and within sight of the government wharf at Burnt Church.

CPT thanks the people of the region for their hospitality, their support for the team, and their enduring hopes for sharing a sustainable and productive fishery. CPT's workers were welcomed into many homes and drew strength for their work from worshipping God with the members of several local churches. This work was also undergirded by the prayers of hundreds of people and congregations around the world who are committed to reducing violence. CPT thanks God that, despite the tensions which persisted throughout this fishing season, no one was seriously injured.

Most of the time, CPT members kept watch at the shoreline, or rode as observers in EFN fishing boats and patrol boats whenever fishers felt there was a risk of violence. The team also spent time with non-Aboriginal fishers and with EFN neighbours in a "Listening Project" to better understand their fears and hopes. Team members regularly spoke with DFO officers about the state of the fishery, their mandate, and treaty rights. CPT urged the Royal Canadian Mounted Police (RCMP) to keep the peace whenever it was threatened by the federal Department of Fisheries and Oceans (DFO) or by others. The team also discussed its observations with the media in the hopes that team members and Canadians would gain a fuller picture of the issues at stake. CPT learned much from its friends and also its adversaries in this struggle for fairness and a right way of living together.

In the course of CPT's time in the area, the team witnessed a continuing denial by Canadian government officials of EFN's right to fish under its own Fisheries Act. EFN fishers were harassed and threatened. EFN traps and boats were confiscated. RCMP and DFO vehicles, boats, and aircraft were frequently present in and around EFN, creating an atmosphere of fear and intimidation. The enforcement of Canada's Fisheries Act, and the over-riding of EFN's treaty right to fish, were often accompanied by an excessive and even reckless use of force by Canadian officials. Throughout the conflict, Canada appeared to be unwilling to engage in any serious dialogue with EFN.

CPT believes that these actions by Canada violated Canada's obligations to the people of Esgenoôpetitj under the treaties signed between Britain and the Mi'kmaq people, under international covenants to which Canada is a signatory, and under Canada's own laws.

In the Marshall case, Canada's Supreme Court had found in favour of Marshall because it said, "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship". CPT prays that this report might help remind Canada of its commitment to deal honourably and respectfully with EFN and other Aboriginal peoples in the sharing of the resources which our loving and generous God has provided.

Section 2 of this report summarizes the abuses of EFN rights which the team observed from April to October, 2000. Section 3 outlines CPT's understanding of Canada's obligations to EFN under Canadian and international law. The concluding section 4 expresses CPT's hope for a new relationship between EFN and Canada based on mutual recognition and respect.

The need to end the abuse and resolve this conflict is urgent, because the hurts suffered by one affect us all. And another lobster fishing season is rapidly approaching.

2. SPECIFIC VIOLATIONS OF HUMAN RIGHTS AT ESGENOÔPETITJ


In the following 22 incidents, which CPT witnessed, Canada violated the human rights of EFN members, and failed to deal with EFN in a fair and honourable manner.

May 6, 2000, 11 a.m. -- On the opening day of Esgenoôpetitj's fishing season, as EFN Band Councillor Brian Bartibogue went out to set the first ten lobster traps for his community, he was immediately intercepted by the DFO. They seized his traps, threatened to seize his boat, and later charged him with "fishing without tags approved by the Minister of Fisheries and Oceans". CPT observers, Father Bob Holmes and William Payne, believing that the DFO's actions violated EFN rights, attempted to retrieve Bartibogue's traps. They too were arrested and charged with "obstructing a fisheries officer".

May 18 -- For several days preceding, a DFO boat came into Miramichi Bay and seized the few traps which EFN members had set each day. On May 18 at 1 p.m., CPT member William Payne, together with Ron Kelly and Trudy Watts who were observers from the Aboriginal Rights Coalition (ARC), a project sponsored by Canadian churches, visited the wharf in Neguac as the DFO boat returned. While attempting to photograph the three traps seized that day, observer Kelly was pushed away by DFO officer Louis Breault.

June 1, 5 a.m. -- In a large pre-dawn raid, 40 officers in eight DFO boats, two RCMP boats and six RCMP cruisers on shore, seized a total of 35 EFN traps. This was the first of many actions where a large portion of the DFO's enforcement resources was deployed against the small EFN fishery.

June 7 -- Herb Dhaliwal, Canada's Minister of Fisheries and Oceans, visited the area. At a news conference in Caraquet NB at 9 a.m. he admitted that he had not read EFN's Fisheries Act or conservation plans. He had earlier agreed to meet with EFN this day but cancelled the meeting at the last minute. When a group of 30 EFN fishers attempted to meet him in Miramichi at 3 p.m., his vehicle approached the venue and then sped away without stopping. The next morning he told the media he wanted to meet with EFN.

June 12, 1:30 p.m. -- Three DFO boats began seizing EFN traps. When two EFN boats went out to investigate, with observers Doug Pritchard and Chris Buhler (CPT) and Ron Kelly (ARC) on board, the DFO boat driven by officer Louis Breault attempted to swamp one of the EFN boats. A DFO speed-boat nearly rammed the second EFN boat and then recklessly swerved and hit another DFO boat. Later in the day at MacEachern wharf, in the presence of CPT observers Pritchard, Buhler and Cliff Kindy, a non-Aboriginal fisher complained to DFO officer Breault about DFO-licenced non-Aboriginal fishers using illegal bait. Breault admitted it was illegal but said "the Department does not want us spending time on that". Five weeks later, the six EFN members on the water on June 12 and CPT observer Pritchard were charged with "obstructing a fisheries officer".

June 15, 1 p.m. -- CPT and ARC observers met with DFO Regional Director Bob Allain to complain about the reckless driving of his officers on June 12. Allain insisted his officers do not harass and "they avoid confrontation". He went on to threaten EFN fishers and the human rights observers with arrest. He also said EFN was a "dysfunctional" community where members had extensive criminal records.

June 22 -- During a visit to Baie Ste. Anne, a large fishing town across Miramichi Bay from EFN, CPT members Lena Siegers and Jane Wright met non-Aboriginal fishers and residents who described the extensive illegal poaching of lobster in the bay. They said they "never see the DFO" in the area.

August 13 -- After a six week pause for the lobsters' moulting season, EFN fishers began to set traps again on August 10. At 11 p.m. on August 13, fourteen DFO boats arrived in the dark with no navigation lights and began seizing EFN traps. Two EFN boats approached, with CPT observer Nina Bailey-Dick on board one boat. DFO officers pointed their guns at the unarmed fishers in the other EFN boat and said, "Get back to shore or we'll shoot." A few minutes later another DFO boat rammed EFN Band Councillor Brian Bartibogue's fishing boat, arrested him and three others in the water, and confiscated his boat. Bartibogue was beaten and choked unconscious by DFO officers before being taken with the others to the Tracadie RCMP post. For several hours, the RCMP denied the prisoners medical attention, dry clothing, and phone access, and lied about these conditions when observers Nina Bailey-Dick (CPT) and Ron Kelly (ARC) inquired about the prisoners' well-being.

August 16, 6 a.m. -- Nine DFO boats began seizing EFN traps. When EFN boats went out to investigate, CPT observer Matthew Bailey-Dick was on board a boat driven by unarmed Aboriginal fisheries officers from Listiguj First Nation. The DFO boat driven by officer Louis Breault rammed the Listiguj boat three times until it had cracked the hull of the Listiguj boat. Between rammings, Breault shouted, "Get out of here. You are all under arrest." Bailey-Dick was almost thrown out of the boat and Listiguj fisheries officer Donald Barnaby sustained back and leg injuries from the rammings.

August 22, 5:30 a.m.
-- After a three-day "truce" for EFN's annual pow-wow, sixteen DFO boats began seizing EFN traps accompanied by two Coast Guard and two RCMP boats. The RCMP were in full riot gear carrying assault rifles. When EFN Chief Wilbur Dedam and others went out to speak to the DFO, DFO officers shouted, "Go to shore or you are all under arrest." Then, one DFO officer was injured by a rock thrown by an EFN member. Meanwhile, two DFO boats sandwiched a small EFN fishing dory near Fox Island and nearly swamped it. One DFO boat then drove over the front of the dory and struck EFN fisher Dominic Bonnell in the head. Five DFO officers jumped into the dory, choked Bonnell and his brother Curtis, and arrested them.

August 26, 7 p.m.
-- Two DFO boats aggressively circled a small dory with EFN member Jason Barnaby and his three-year-old son as they returned from a family outing of rod fishing for mackerel. The turbulence created by the DFO almost swamped the dory. When two Listiguj First Nation fisheries boats went out to assist Barnaby, a third DFO boat driven by DFO officer Louis Breault drove straight at the Listiguj boat and almost rammed it. Only quick manoeuvring by the Listiguj officer prevented a collision.

August 28
-- Bob Nault, Canada's Minister of Indian and Northern Affairs, arrived at 10 a.m. and took a brief tour of the community with EFN Chief Wilbur Dedam. Nault refused to meet with other community members "because the press were present" and left. At 10 p.m. EFN spokesperson Karen Somerville reported to CPT that she had seen a large crowd of non-Aboriginal fishers on the Neguac wharf threatening to pull up EFN traps. They were dissuaded by the large RCMP presence.

August 29, 2:30 a.m. -- Thirteen DFO boats began seizing EFN traps in the dark, but no EFN boats responded and most DFO boats left by 5 a.m. At 6 a.m., 22 DFO, Coast Guard and RCMP boats returned to seize more EFN traps. Three small EFN boats went out to observe. At 7 a.m., several DFO boats isolated and swamped one of the EFN dories and another DFO boat ran over top of the dory and its two occupants. DFO boats surrounded the EFN men in the water and DFO officers pepper-sprayed and beat them with batons before they were hauled out and arrested. At 8 a.m., a DFO boat rammed and sank a second EFN boat flinging the three occupants into the water.

September 11
-- Federal Fisheries Minister Dhaliwal issued a statement saying he was willing to enter into mediation with EFN "without preconditions" but added (a precondition!) that there must be "an agreement on temporary fishing levels".

September 12, 10:45 a.m.
-- DFO and RCMP boats intercepted two EFN fishing boats and arrested the unarmed occupants, including EFN Chief Wilbur Dedam, at gunpoint. When a Listiguj First Nation fisheries boat with ARC observer Tracy Sinclair on board came to assist, it was rammed twice and capsized by the RCMP, and its four occupants thrown into the water. One of those thrown from the boat, Donald Barnaby, was injured and taken to hospital. The RCMP first used tear gas, then pepper sprayed those still in the water, and arrested sixteen people, including Chief Dedam and observer Sinclair. Sinclair reported that the RCMP treated her much better than the Mi'kmaq people arrested with her. Charges against her were later stayed. The DFO confiscated four EFN boats, including that of the Chief, and police seized the observer's video camera and tape of the incident.

September 13, 4 p.m.
-- Thirty EFN women and children, seeking the return of their lobster traps, were directed by the RCMP to the DFO office in Tracadie NB. When they arrived, accompanied by CPT observers Janet Shoemaker and Joel Klassen, the DFO refused to speak with them and called in the police. After a two-hour standoff, the DFO prepared forms which the EFN members signed applying for return of their traps. After receiving the signed applications, the DFO told the media that these forms could be used to charge the EFN women for "illegal fishing".

September 20
-- Bob Rae, former Premier of Ontario, abandoned his efforts to mediate after three days. EFN said they were ready to continue mediation. The DFO made no response but ordered all EFN traps had to be removed by 11 a.m. on September 22.

September 21, 4 p.m.
-- EFN, DFO, RCMP, three chartered accountants, and CPT and ARC observers prepared to do a joint trap count. Then the DFO and RCMP withdrew from participation in the count without explanation.

September 22, 7 a.m. -- An EFN boat with a chartered accountant and CPT observer William Payne on board set out to continue the trap count. They were approached in a threatening manner by several non-Aboriginal fishing boats. Someone fired off flares. A non-Aboriginal person said that a bullet had been fired at his boat. When observer Payne went to give a voluntary statement to the RCMP, his videotape from the day was confiscated without a warrant. At 11 a.m. hundreds of EFN members and supporters from across Canada gathered on the shore to pray for a peaceful and just resolution of the conflict.

September 23, 5:30 a.m. -- Shots were fired at the EFN school from the water. RCMP arrested three non-Aboriginal persons suspected of the offence and confiscated firearms, alcohol and drugs from them.

September 29 -- Several more seizures of EFN traps were made by the DFO over the previous days. At 2:50 p.m. on September 29, during another seizure, CPT observer Pierre Shantz was on board EFN Chief Dedam's boat when it went out to investigate. Shantz reported that the RCMP drove aggressively in circles around the slower EFN boats and nearly collided with them several times.

October 7 -- After experiencing several more days of DFO/RCMP seizures, patrols, and fly-overs, EFN ended its lobster fishing for the year. DFO patrols and fly-overs continued for the rest of the month even though there were no EFN traps in the water.

3. OVERARCHING LEGAL AND HUMAN RIGHTS PRINCIPLES


CPT understands the following three issues as key to this conflict:

(1) EFN says it has a right to deal with Canada on a nation-to-nation basis because that is the basis on which its treaties were made. EFN also says it has an inherent right to self-determination which is recognized under international law and it can therefore manage its fishing under its own Fisheries Act and regulations. This is disputed by Canada. If the dispute between these two nations cannot be resolved by the parties themselves, it needs to be referred to a mutually agreed independent adjudicator.

(2) Canada says it has a right, which is disputed by Aboriginal peoples, to infringe on Aboriginal rights if, and only if, the issue is compelling for Canada, the infringement is minimized, and the Aboriginal people affected are consulted. These conditions were not met at Esgenoôpetitj and so the DFO's actions were illegal under Canadian law as well.

(3) Canada's law enforcement officials violated international laws and its own Criminal Code governing their use of force and the provision of immediate medical attention to persons in their custody. The DFO violated part of its own mandate "to work toward safe waters".

The following sub-sections expand on these three issues.

(1) Esgenoôpetitj's Right to Manage Its Own Fishery


The claim made by the Esgenoôpetitj First Nation for jurisdiction equal to and separate from that of Canada to manage its own fishery and other natural resources is rooted in EFN's own long history as a self-governing people. It is also supported by Canadian law and by international law.

(i) Canadian Law: At the end of the Seven Years War, a European conflict which included hostilities amongst colonial powers in North America, a peace treaty was signed at Paris on February 10, 1763. As a result of the Treaty of Paris, France ceded certain territories including established settlements in North America to Britain. In October of that year the British King issued a Royal Proclamation in respect of those acquisitions which did three things.

1. It gave precise geographical boundaries within the former French territories to three new colonial governments (Québec, East Florida and West Florida), essentially the areas then inhabited by Europeans.

2. It established the rules of governing within those areas.

3. It reserved the rest of the lands acquired for the use of "the Indians".

It is clear from the language of the Royal Proclamation that King George III did not regard the First Peoples living within his recent acquisitions as his "subjects".

Not only did the Royal Proclamation forbid Europeans from taking or buying lands reserved to First Nations; it required Europeans who were then possessing those lands "by inadvertence" to remove themselves forthwith. This last requirement applied to Britain's English as well as French subjects.

Thus, the Royal Proclamation confirmed as law the commitments made in the earlier treaties by the British Crown with the First Nations of the Eastern Seaboard, such as the treaties made with the Mi'kmaq in 1725, 1752, 1760 and 1761, that all lands subject to the King's sovereignty and protection, unless purchased by or ceded to the Crown, were reserved to the use and benefit of the First Nations. Despite the policies of the British Crown set out in these treaties, Europeans had continued to encroach on native lands which resulted in repeated hostilities. The Royal Proclamation was a clear and unmistakable laying down of the law by the central government which codified the principles underlying the treaties:

1. Title to land could pass from indigenous peoples ONLY to the Crown (thence to His Majesty's subjects).

2. Land not conveyed to the Crown was reserved to First Nations.

3. Disputes were to be settled in Court, not on the battlefield.

4. The Crown is sovereign; natives are protected persons--neither blessed nor encumbered by British citizenship.

The Royal Proclamation is now recognized as the first of a long series of Canadian constitutional documents. It sets high standards for respect amongst peoples. It provides for the peaceful and prosperous coexistence of First Peoples and recent arrivals.

Section 35(1) of Canada's Constitution Act (1982) recognized and affirmed "the existing aboriginal and treaty rights of the aboriginal peoples of Canada". It thereby entrenched in Canada's laws the principles of the Royal Proclamation and all treaties made with Aboriginal peoples. The nation-to-nation treaty relationship is part of the supreme law for Canada. The Supreme Court of Canada has, in decisions such as Simon (1985) and Marshall (1999), made it plain that those treaty rights are enforceable in the Canadian judicial system. Should any Canadian law, such as the Fisheries Act, be inconsistent with this provision in the Constitution, to the extent of the inconsistency, that law is of no force or effect.

EFN says that it has a right to manage its own fishery under its own Fisheries Act and regulations as it had done since time immemorial and that that right is affirmed in the treaties signed by the Mi'kmaq nation. Canada disagrees. If this dispute cannot be resolved peacefully between the parties to the treaties, it ought to be referred to a mutually agreed independent adjudicator. This was a core recommendation in the Report of the Royal Commission on Aboriginal Peoples (1996).

ii) International Law: Canada has played a leading role in the development and promotion of the international law of human rights, beginning with the Universal Declaration of Human Rights in 1948. Of the various international accords which have been ratified by Canada itself, several contain provisions which affirm EFN's right to fish. For example:

UN Covenant on Civil and Political Rights

* Article 1: the right to self-determination of all peoples, which includes economic, territorial, and resource rights;

* Article 2: the right to effective remedy, in court or otherwise;

* Article 27: the right of minorities to enjoy their culture, their traditional means of livelihood, and effective participation in decisions which affect them.

UN Covenant on Economic, Social and Cultural Rights

* Article 1: the right of self-determination, which includes the freedom to determine political status, pursue economic, social and cultural development, and manage natural wealth and resources "based upon the principle of mutual benefit"

* Articles 6 and 7: the right to earn an adequate living in safe and healthy conditions

* Article 12: the right to the "highest attainable standard of physical and mental health"

UN Declaration on the Right to Development (1986), Article 1

"(1) The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized."(2)

sThe human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources."

UN Convention on the Elimination of All Forms of Racial Discrimination

Articles 1 and 2: allow for special economic, social and cultural measures for the advancement of racial or ethnic groups within the State who require this protection to secure their human rights

When a state, such as Canada, ratifies any one of these international accords, it also agrees to submit regular reports for review by the UN Human Rights Committee. During recent reviews, Canada has been severely criticized by that Committee for its violations of the rights of indigenous people within its borders. For example, in its 1999 report:

"The Committee noted that, as [Canada] acknowledged, the situation of the aboriginal peoples remains 'the most pressing human rights issue facing Canadians'. In this connection, the Committee is particularly concerned that [Canada] has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples (RCAP). With reference to the conclusion by RCAP that without a greater share of the lands and resources, institutions of aboriginal self-government will fail, the Committee emphasizes that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence."

Canada's DFO has not accepted EFN's right to self-determination and to manage its own resources, a right which is guaranteed under international human rights accords signed by Canada. If Canada does not agree with EFN about the interpretation of these international laws, then Canada ought to be willing to submit this dispute to a mutually-agreed upon, independent judicial body or process.

(2) Limitations on Canada's Infringement of Aboriginal Rights


Canada claims a right to infringe on Aboriginal rights in limited circumstances. This claim is disputed by Aboriginal peoples. But even if such a right to infringe exists, the limitations on it were not respected by the DFO at Esgenoôpetitj.

In a series of decisions in Canada's Supreme Court [Sparrow (1990), Badger (1996), Gladstone (1996), Delgamuukw (1997)], Canada says it can infringe on Aboriginal rights if certain criteria are met:

1. There is a compelling and substantial Canadian public objective, like conservation, at stake.

2. There must be consultation with the Aboriginal peoples concerned. The concerns and proposals of the Aboriginal communities must be taken into account.

3. The limitations on the Aboriginal right must go no further than required to meet the compelling and substantial Canadian public objective.

4. Different techniques of conservation and management may apply to an Aboriginal people's exercise of the treaty right.

Canada's Marshall decision affirmed these criteria. However, in an unprecedented later clarification of the Marshall decision (Marshall II, 1999), the Supreme Court expanded the first criterion to include not only conservation but also "economic and regional fairness and historical reliance upon, and participation in, the fishery by non-Aboriginal groups".

Canada uses the Marshall decision to justify its unilateral regulation of the Mi'kmaq fishery but it has never explained how its treatment of EFN meets the Supreme Court criteria for infringement. Canada has only said it is concerned about the conservation of lobster stocks. EFN's fisheries plan allows for up to 5,600 traps. Canada issued licenses for 240,000 traps in the Miramichi Bay area alone. Thus the EFN fishery represents, at most, 2% of the total for the Bay, and so is not itself a significant threat to conservation. On September 7, 2000, a group of 20 Canadian lawyers, all with extensive knowledge in the area of Aboriginal and treaty rights and including Donald Marshall's lawyer Bruce Wildsmith, issued a statement saying,

"The DFO has made a serious error of law in its interpretation of the Marshall decision. This error has been compounded by its over-reaction to the situation at Burnt Church, New Brunswick....Based on public statements issued by the DFO, the Minister has failed to disclose sufficient information to meet the necessary criteria [for infringement] in the Burnt Church situation."

The Marshall decision also said that Mi'qmaq people have a treaty right to fish "for a moderate livelihood" and the Sparrow decision said that Aboriginal people whose rights are infringed must be compensated for the infringement. The DFO has not presented nor proven the grounds for its infringement of EFN's treaty rights, nor has it compensated EFN for this infringement.

(3) Canada's Use of Force was Excessive

The United Nations' International Covenant on Civil and Political Rights (1966) guarantees:

* Article 7 -- "freedom from torture or cruel, inhuman, or degrading treatment or punishment"

* Article 9 -- "the right to liberty and security of person"

* Article 10 -- rights of prisoners.

In 1979, the UN General Assembly adopted its Code of Conduct for Law Enforcement Officials. Canada is a signatory to the Code. The Code provides:

* "Article 3. Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.

* "Article 6. Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required."

Canada's own Criminal Code (1992) has similar provisions authorizing only "as much force as is reasonably necessary to prevent the commission of an offence (sec. 27).

Even if EFN's right to manage its own fishery were not established in Canadian or international law, the force used by DFO and RCMP officers on Miramichi Bay was excessive. Canadian law enforcement officers repeatedly pointed guns at unarmed EFN fishers, rammed and sank their small boats, and beat survivors of the sinkings as they swam for their lives. On at least one occasion they also denied immediate medical attention to a person arrested.

4. CONCLUSION

Canada's dispute with Mi'kmaq fishers over access to the lobster fishery in Miramichi Bay spilled over into violence at the hands of non-Aboriginal fishers in 1999 and at the hands of Canadian government officers in 2000. The images of Canadian officials deliberately ramming and sinking the boats of Aboriginal fishers has shocked Canadians and others around the world. This is not how Canadians want to see themselves.

Therefore CPT recommends that the Canadian government radically alter its dealings with the people of Esgenoôpetitj by pursuing partnership with Aboriginal people instead of domination. CPT calls on all Canadians to assist in the resolution of this conflict and the forging of fair and lasting terms for coexistence with Aboriginal people and the sharing of the riches of God's good creation in this beautiful and bounteous land.

CPT prays that this report might serve both as a reminder of what went wrong last year and as an encouragement for Canada to recover its reputation as a place where human rights and dignity are guaranteed.

Christian Peacemaker Teams February 2001



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