Canada court ruling seen extending native rights
Date: 20-Sep-99
Country: CANADA
Author: Randall Palmer
The 5-2 decision has the potential to give preferential treatment to
natives in hunting, logging and possibly mining activity. It was also
the latest in a string of court victories for natives.
Like the United States, Australia and other countries, Canada has long
struggled with how to balance aboriginal and nonnative rights.
The court ruled that Donald Marshall Jr. - a Mi'kmaq Indian who had
caught 463 pounds (210 kg) of eels six years ago and sold them for
C$787.10 - had the right under a 1760 treaty to engage in commercial
fishing to provide for his family.
"The commercial industry is going to have to back up some and make some
room for the aboriginal commercial harvest of timber, perhaps minerals,
certainly fish," said lawyer Bruce Clarke, who argued before the court
for the Native Council of Nova Scotia.
Marshall, from the Atlantic province of Nova Scotia, was charged with
breaking three federal regulations - selling eels without a license,
fishing without a license and fishing during the closed season.
"In my view, the 1760 treaty does affirm the right of the Mi'kmaq people
to continue to provide for their own sustenance by taking the products
of their hunting, fishing and other gathering activities, and trading
for what in 1760 was termed 'necessaries'," Justice Ian Binnie wrote for
the majority.
He said this did not entitle them to set up large commercial trawlers
while others sat idle, but it did go further than previous decisions,
which often had allowed Indians to fish for themselves and their
families but not commercially.
"'Generous' rules of interpretation should not be confused with a vague
sense of after-the-fact largesse," he said.
The decision did not go down well with Nova Scotia's nonnative
fishermen, who pay as much as C$200,000 for a license to catch lobster.
"It's going to really cause a lot of problems here," Don Cunningham said
for the West Nova Scotia Fishermen's Coalition, noting that seafood was
the province's biggest export.
"It's a scary situation here. It's like Ontario losing its automobile
industry."
He said there were only two solutions for the government - one to
increase the total catch, for example of lobster, after having said for
years this would deplete stocks, and the other to have new fishermen
displace existing ones.
The decision was almost certain to affect government cases against
natives in New Brunswick, who have asserted the right to harvest any
timber they want on government-owned land. The government owns 48
percent of the province's forests.
Friday's case dealt with areas covered by treaties. But in a related
decision in December 1997, the Delgamuukw case, the Supreme Court ruled
that natives in areas where no treaties were signed - this covers vast
tracts of Canada - retained a proprietary interest in the land and its
resources.
In Western Canada that decision has added to economic uncertainty by
opening to question who controls economically important resources such
as trees and minerals.