The Marshall decision
CBC News Online | May 9, 2004
On Sept. 17, 1999, the Supreme Court of Canada upheld the native fishing rights of Donald Marshall, a Mi'kmaq who had been charged with fishing eels out of season, fishing without a licence, and fishing with an illegal net.
Donald Marshall (CP photo)
Marshall had been convicted on all three counts in Provincial Court. The conviction was upheld by the Nova Scotia Court of Appeal. He then took his case to the Supreme Court, arguing treaties from the 1760s gave him the right to catch fish for sale and excused him from current fisheries regulations.
The Supreme Court agreed. It stated in its decision that "�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�"
But the Marshall decision caused chaos as parties on all sides of the debate interpreted the ruling differently.
The 34 native bands in the Maritime provinces and eastern Quebec that were affected by the decision immediately began fishing lobster out of season, saying the ruling gave them full, unregulated fishing rights. Non-aboriginal fishermen demanded the government put a ban on the catch, worried that lobster stocks would be lost.
Burch Church and Indian Brook
Burnt Church, N.B., became the hotspot of tension between native and non-native fishermen. Trouble began in the early hours of Sunday, Oct. 3, 1999, when about 150 fishing boats headed out into Miramichi Bay, one of Canada's most lucrative lobster fisheries, to protest against native trappers who were fishing lobster out of season.
The demonstration turned to an ugly shouting match when the boats returned, having destroyed hundreds of native traps. The vandalization of fishing equipment and three fish plants followed.
Despite the violence, the native fishermen of Burnt Church didn't budge, refusing to give up the native fishing rights granted by the Marshall decision. Mi'kmaq warriors set up an armed encampment on the wharf in Burnt Church to protect native people continuing to catch lobster in the bay.
Days later, Fisheries Minister Herb Dhaliwal met with native leaders to try to find a way to ease the tensions. All but two of the 34 First Nations bands agreed to a voluntary moratorium on fishing. The Burnt Church and Indian Brook bands rejected the idea of government regulation.
The moratorium succeeded in defusing the tensions between native and non-native fishermen, at least for the time being.
On Oct. 18, 1999, the West Nova Fishermen's Coalition applied for a rehearing of the appeal and asked for the judgement to be set aside until a new hearing.
On Nov. 17, 1999, the Supreme Court said there would be no rehearing. However, to alleviate the confusion, the Court released a new ruling, known as Marshall 2, to clarify points made in the original Marshall decision.
One of the most important points of the decision, reiterated in Marshall 2, was that the government still had the power to regulate native fishing for the purposes of conservation.
In February 2000, negotiations between the First Nations communities in the Atlantic Provinces and the DFO began, with Fisheries Minister Herb Dhaliwal promising to ink a short-term deal by the spring. The deal would decide how aboriginal and commercial fishermen would share the resource.
But negotiations took longer than he thought.
Dhaliwal also met with commercial fishermen, some of whom were considering selling their licences and getting out of the business. The Maritime Fishermen's Union criticized the government, saying the DFO was dragging its heels.
Native fishermen were also getting frustrated. First Nations leaders announced their people would be out fishing in the spring whether or not a deal had been struck.
On Feb. 24, 2000, the federal government announced it would buy back more than 1,000 commercial fishing licences, including boats and gear, to expand the native lobster fishery. By the summer, about 1,400 fishermen had offered to retire more than 5,000 licences.
In the federal budget announced in February 2000, $160 million was set aside for the DFO's response to the Marshall decision. The money would pay for retired licences and economic development initiatives aimed at helping to bring native people into the fishing industry.
The interim agreements
Over the following two months, the negotiations saw real progress as the first native bands signed agreements with the government. By April 21, 2000, 13 bands signed deals and others made agreements in principle.
The interim deals were different for each band, taking into account the different sizes and interests of the various groups, but they were generally set out to govern fishing over the next year. They gave native people the same access as non-natives to commercial and food fisheries, providing boats, gear, training and economic development initiatives, like new equipment or facilities. Some bands incorporated the new deals with the Aboriginal Fisheries Strategy, AFS, while others opted to keep the agreements separate.
Established in 1992 to ensure stable fishery management, the AFS was in response to the Supreme Court of Canada 1990 Sparrow decision that defined Aboriginal Peoples' right to fish for food, social and ceremonial purposes.
By August 2000, 27 bands had signed agreements, but the Burnt Church and Indian Brook bands still refused.
The fishing continued
In a two-week period in late July and early August 2000, seven boats belonging to the Indian Brook band were seized and 18 people were arrested on charges of catching too many lobsters. The Mi'kmaq said they didn't need the government to make sure the lobster population is conserved because they already have their own conservation methods in place.
The Burnt Church Mi'kmaq held their position as well.
On Aug. 9, 2000, the band members voted to reject federal regulation of the fishery despite the government's offer to provide five well-equipped boats and build a new $2-million wharf. Ottawa wanted to set a 40-trap limit but the band said it has the right to set more than 5,000 traps.
The following week, tensions rose again in Burnt Church as enraged Mi'kmaq declared war against the DFO after a late-night raid on several lobster traps in Miramichi Bay. Four people were arrested, and one boat and over 700 traps were seized. Native fishermen protested by setting up a blockade on Highway 11, a major commercial route in the province. The Mi'kmaq claimed officers pointed guns at them, but the DFO denied the allegations, saying that only pepper spray was used and one baton pulled out.
With Burnt Church fishermen continuing their lobster catch, Dhaliwal said fisheries officers would continue to seize traps and make arrests. But he also called the native leaders to return to the negotiating table, claiming the Burnt Church band refused to even meet with his federal negotiator.
Hoping to avoid a repeat of the violence of the previous year's fishing season, the federal government issued the Burnt Church Mi'kmaq a temporary licence when the season opened Aug. 20, 2001. The plan was to allow native fishing to go ahead while a long-term agreement was negotiated.
However, the licence came with limitations that didn't sit well with the Mi'kmaq. Band member Brian Bartibogue called it another case of the federal government "ramming legislation down aboriginal people's throats."
The licence restricted the fishermen from selling their catch, limiting them to using it for food and ceremonial purposes only. Department of Fisheries and Oceans tags had to be on the catch.
Most importantly, the licence would only last one week, until midnight on Aug. 27, 2001.
Shortly after issuing the licence, the federal government released a study that suggested fishing in the fall jeopardizes the resource. Ottawa proposed allowing the Mi'kmaq to use small boats to set 900 traps for two months every fall as well as creating 50 jobs on the reserve to study the long-term effects of the lobster fishery.
With pressure building on the day before the deadline, Burnt Church band members blocked all entrances to their reserve and escorted media out of the area while continuing to set lobster traps on Miramichi Bay.
The RCMP sent extra officers to the area and non-native fishermen again called on Ottawa not to allow the Mi'kmaq to fish under different rules.
After the deadline passed with no agreement with the Mi'kmaq, Ottawa issued a new licence to allow fishing for food and ceremonial purposes, which lasted until Oct. 20, 2001.
In April 2002, a federal committee released a report aimed at preventing more outbreaks of violence between native and non-native fishermen.
The report recommended that all charges stemming from the confrontation be dropped and Ottawa should compensate fishermen for their lost traps and boats.
The committee that native fishermen have the same season as non-native fishermen, meaning natives would be banned from fishing in the fall. As well, the report recommended that native bands be issued licences, which they would distribute to native fishermen.