MARSHALL DECISION


What is the trouble and who is the troublemaker in the East Coast fisheries?

By GARY ZATZMAN
TML WEEKLY VOL. 04 NO. 48-49
11/28/1999 and 12/05/1999

HALIFAX -- As soon as the first "confrontations" took place (at Burnt Church, NB and Yarmouth, NS) in the wake of the September 17 decision in the Marshall case, various political and media forces went into motion, striving to define the "problem." This was a prelude to usurping the right to dictate the agenda as to what options might be considered as "solutions."

The unifying theme taken up by the entire reactionary camp was that the "problem" arose from "lack of preparation" for potential consequences. Different sections of this reactionary alliance objected to different aspects.

Objections to recognizing Native fishing rights in the first place

This is the position of the Reform Party. Specifically, the Reform Party denies any notion or suggestion that there can be collective rights that could / should govern matters involving property that is put to commercial or any other use that gives rise to economic gain, e.g. its opposition to the Nish'ga draft treaty is based on the absence of definitions of individual property rights.

The federal Liberal party, presently in power at the level of the federal government, initially had a field day with this situation, dressing their own devious and reactionary activity in progressive colours relative to the openly chauvinist positions of Reform. This was the race card that Fisheries Minister Dhaliwal, was trying so desperately to play in the first two weeks following the September 17 judgment.

The Mi'kmaq tribal chiefs, meeting as a Grand Council gauged the situation correctly, tested this minister's alleged bona fides, and found him wanting: he knew nothing about the origins of the Marshall case, even less about the historical disposition of Mi'kmaq fishing rights or the basis or nature of Mi'kmaq claims. He was thus not only in no position to defend even the status-quo subsequent to the Marshall judgment, let alone advocate for their interests, but he was in no position to promise anything or deliver on any promise either. The media and the government withdrew Dhaliwal from any further starring roles in any aspect of this affair within days of his meeting the Grand Council at Halifax.

This put an end, for the time being, to any further equivocations from the government about "overcoming" the "lack of preparation", etc.

Objections to the case even being heard

Here all the bourgeois parties and champions were and remain caught. The Supreme Court unanimously found that Donald Marshall acted within the norms of the judicial system in bringing his case forward through each stage of the lower, intermediate and highest courts. The Supreme Court, divided over whether a British treaty with the Mi'kmaq created a fishing right, exercisable by a modern-day Mi'kmaq fishing eels -- a species of traditional value to Mi'kmaq and of no interest or value to non-Mi'kmaq commercial fishery interests. If it did create such a right, as yet unextinguished, the entire Court agreed that such fishing in the exercise of such a right would be beyond the regulatory authority of the federal Department of Fisheries and Oceans. The dissenting minority in the Supreme Court upheld this reasoning, but differed with the majority over whether the said treaty created the right in the first place as claimed by Donald Marshall.

The split in the ranks of the Supreme Court reflects an even deeper split in the ruling class, with sections coalesced around the leadership of the Reform Party denying that any collective rights continue for any aboriginal band, out of any treaty signed by a colonial authority and any of the native peoples in Canada before the emergence of the present federal system in general and the Indian Act in particular.

Unlike a number of recent native-rights cases in British Columbia involving multiple bands and-or the interpretation of multiple treaties, this case involved interpreting and ruling on but a single treaty with a single set of Mi'kmaq band representatives, with no dispute as to the facts of the fishing and fish-selling activity of the accused. The real attitude of the ruling class toward the bringing of this case is seen in the fact that it was nevertheless dragged out over more than six years. Was there some hope that death or misadventure might overtake the subject of this case before its eventual settlement? Clearly, the rich and their media dared not attack Donald Marshall frontally. His false and unjustified conviction for a murder he never committed, followed by imprisonment for 12 years, had to be overturned earlier this decade, and then the entire court system in Nova Scotia was dragged through the ringer with a full-blown inquiry into that miscarriage of justice which pointed clearly to the multiple layers of racism embedded in the entire outlook and practice of that court system over many decades.

Objections that "moderate livelihood" was left undefined

This was precisely the matter on which the federal Fisheries Minister Dhaliwal came a cropper. Initially he sided with those who claimed that the September 17 judgment failed to define what this phrase means. In fact, several previous Supreme Court judgments defined this principle quite carefully, and the September 17 judgment reiterated its underlying principle.

A "moderate livelihood" from the catching and selling of fish (including species that others may be fishing commercially) is a livelihood not based on and-or not involving the vesting of a commercial stake. A Mi'kmaq person catching and selling fish in a manner not in direct competition with any existing arrangements between buyers or processors and other non-Mi'kmaq commercial fishermen would be deemed to be fishing for a moderate livelihood under/within the terms of the treaty right recognized in this case. The government retains the right to decide in which species and fishing areas someone eligible to claim this right could exercise it and garner a moderate livelihood. None of this impairs any Mi'kmaq who might qualify to fish for a government-regulated moderate livelihood under the now-reaffirmed treaty right from becoming a commercial fisherman and fishing for a commercial livelihood under the same terms and conditions that apply to other commercial fishermen.

Dhaliwal whined quite pathetically in front of the national media about how hurt he felt, as someone of East Indian origin, to be labelled "racist" over his dealings and outlook on this matter. But the only way anyone can deny that there was any guideline as to the meaning of the concept of aboriginal peoples fishing for a moderate livelihood is by denying any knowledge of the entire conceptual apparatus of aboriginal rights and aboriginal title -- i.e., by denying that Canada was aboriginal territory prior to European "discovery", occupation and settlement. What could be more racist than that?

Seeking "clarification" from the Supreme Court of its September 17 judgment

This manoeuvre was taken up by certain elements of the reactionary coalition energized by the original September 17 decision, with critically important support from Nova Scotia Premier John Hamm. The call for a "clarification" was also backed publicly by the governments and Progressive Conservative party organizations of Nova Scotia and New Brunswick, silently and unofficially by other sections of the Progressive Conservative party federally, and editorially by The Globe and Mail. The principal lawyer who brought the action on behalf of a so-called "fishermen's coalition" from southwestern Nova Scotia is a son-in-law of the owner of the Halifax Herald. When he was a journalist twenty years earlier at his father-in-law's morning newspaper, the Halifax Chronicle-Herald, reporting the reactions among lobster fishermen in southwestern Nova Scotia to the arbitrary dictates of the federal fisheries bureaucracy, he never missed an opportunity to misrepresent their resistance and defiance as "special pleading" by "greedy" fishermen "making $80,000 a year."

The Supreme Court slammed the door on revisiting any aspect of the Marshall case in a 20-page judgment published November 19. The Globe and Mail spilled acres of ink striving to lift the spirits of its reactionary cohorts, attempting to portray this judgment as something that could or would eventually restore "balance" in fisheries regulation on the east coast. But the most decisive sentence of the judgment, which cannot be twisted to mean anything except that the Court considered this action utterly unjustified and unjustifiable, clobbered the authors of this final court action with responsibility for legal costs.

Since November 19, in the wake of these failed manoeuvres and attempts to obtain "clarification," the government has renewed its attempts to seize back the initiative. The Standing Committee on Fisheries was despatched to stage "public consultations" in Charlottetown, Halifax, Moncton, Miramichi, etc. about aboriginal fishing rights. Its leading NDP member used a committee hearing in Halifax to grandstand for the notion that "all "fishermen" -- Native and non-Native, monopoly corporations interests and independent commodity producers mired in debt to the bank -- have to accept the authority of the federal government as a neutral regulator of the fishery, above classes and class conflicts.

Addressing the committee hearing in Miramichi, a leading spokesman from the Burnt Church Mi'kmaq First Nation reiterated that the Marshall judgment put an onus on the fisheries department to come to specific arrangements with each native band in the region, in accordance with the principle of assuring that the Mi'kmaq can reasonably expect to achieve a "moderate livelihood" when they exercise their treaty rights. One section of the reactionary alliance seeking to extinguish the Marshall finding used a committee hearing in Moncton to call on the federal government to resume its dormant program of buying up commercial fishermen's licences, but with a new twist: reserve these licences to be assigned to aboriginal fishermen, such that the entire line of judgments by the Supreme Court affirming an aboriginal right to fish for a "moderate livelihood" would be effectively nullified by being rendered moot. On Saturday, November 27, the Globe and Mail claimed it had seen a Cabinet policy discussion document dated November 22.


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