Nova Scotia

N.S. lawyer's book critical of native-fishing ruling

One of the Nova Scotia government's most senior lawyers has written a scathing attack on the Supreme Court of Canada's handling of a landmark native fishing case.
Nova Scotia Justice Department lawyer Alex Cameron's new book slams the Supreme Court of Canada for its ruling in a landmark native fishing case, saying it was wrong and has cost taxpayers. (CBC)
One of the Nova Scotia government's most senior lawyers has written a scathing attack on the Supreme Court of Canada's handling of a landmark native fishing case.

In a 1999 decision, the court ruled that First Nations people had a treaty right to fish and sell their catch.

In a book released this week, Nova Scotia Justice Department lawyer Alex Cameron says the court got it all wrong and that taxpayers have paid the price.

"The decision has wrought more harm than the fractiousness and violence it brought to peaceable communities," Cameron writes in Power Without Law.

"It has cost taxpayers hundreds of millions of dollars as the federal government entered into agreements with local native communities that arose from their demands post-Marshall," he writes, referring to the case of the late Donald Marshall Jr.

Marshall is best known for being at the centre of a high-profile wrongful conviction case, having spent 11 years in prison for the 1971 stabbing death of a friend. But the Nova Scotia man was also the central figure in another Supreme Court decision, one dealing with native fishing rights.

In 1996, he was convicted after he caught and sold 210 kilograms of eels out of season and without a licence. But Marshall, who died in August from complications following a double-lung transplant, successfully argued that an ancient treaty gave him the right to catch and sell fish for commercial purposes.

Ruling led to clashes

After the Supreme Court decision, there were many violent clashes between First Nations and non-First Nations lobster fishermen. There were confrontations on the water and on land, along with vandalism and arson.

Cameron represented Nova Scotia in the court battles triggered by the decision.

He claims the original Supreme Court judgment was riddled with errors.

In his book, he argues some fish trading in the 1700s was transformed by activist judges into an unwarranted and substantial treaty entitlement.

It's possible that natives should be given special access to resources, Cameron writes, "but policy is the realm of elected governments. Judges are not meant to decide policies."

Nova Scotia Justice Minister Ross Landry says he can't comment on Alex Cameron's critical new book until he reads it. (CBC)
Nova Scotia Justice Minister Ross Landry offered little comment on the book, saying he hasn't read it yet, but has requested a copy.

"As attorney general for Nova Scotia, I have to review the facts and examine this issue in a more detailed manner to have an opinion one way or the other," he said.

"I support decisions of our court and I respect the decisions of our court," he added.

Landry also sidestepped answering whether Cameron's views are also the views of the provincial government, which is currently negotiating with Mi'kmaq over the treaty issues raised by the Marshall case, and whose premier is now the minister in charge of aboriginal affairs.

Landry did say he has been assured Cameron wrote the book during his spare time.

Mi'kmaq Grand Chief Ben Sylliboy shrugged off Cameron's charges.

A member of the Mi'kmaq legal team also shrugged them off, saying they've been made before in court.

Cameron did not respond to CBC's requests for an interview. The publisher said Cameron will not be granting media interviews.

In 1971, Marshall was wrongfully convicted of stabbing his friend, Sandy Seale, in Sydney's Wentworth Park. Marshall was just 17 when he received a life sentence for the murder that was later determined he had not committed.

He was released in 1982 after the RCMP reviewed his case and cleared by the Nova Scotia Court of Appeal in 1983 after a witness came forward to say another man had stabbed Seale, and several prior witness statements connecting Marshall to the death were recanted.

Marshall's acquittal in 1983 led to a royal commission that brought sweeping changes to a justice system found to be plagued by incompetence and racism.