From dbain@interchange.ubc.ca Wed Aug 16 12:29:28 2000 Received: from mxu2.u.washington.edu (mxu2.u.washington.edu [140.142.32.9]) by lists.u.washington.edu (8.9.3+UW00.05/8.9.3+UW99.09) with ESMTP id MAA99378; Wed, 16 Aug 2000 12:29:26 -0700 Received: from priv-edtnes11-hme0.telusplanet.net (fepout3.telus.net [199.185.220.238]) by mxu2.u.washington.edu (8.9.3+UW00.02/8.9.3+UW99.09) with ESMTP id MAA13732; Wed, 16 Aug 2000 12:29:25 -0700 Received: from interchange.ubc.ca ([209.52.76.3]) by priv-edtnes11-hme0.telusplanet.net (InterMail vM.4.01.02.11 201-229-116-111) with ESMTP id <20000816192919.IWIS11006.priv-edtnes11-hme0.telusplanet.net@interchange.ubc.ca>; Wed, 16 Aug 2000 13:29:19 -0600 Message-ID: <399AEAD7.50B58533@interchange.ubc.ca> Date: Wed, 16 Aug 2000 12:26:15 -0700 From: Don X-Mailer: Mozilla 4.73 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 Subject: [Fwd: [NativeNews] Finally: Someone who understands the truth,A judge's ruling unmuddies the waters] Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit -------- Original Message -------- Subject: [NativeNews] Finally: Someone who understands the truth,A judge's ruling unmuddies the waters Date: Wed, 16 Aug 2000 14:38:07 -0400 From: ishgooda@voyager.net Reply-To: NatNews-owner@egroups.com To: NatNews@egroups.com From: "jjbear" A judge's ruling unmuddies the waters By Parker Barss Donham A funny thing happened to the Department of Fisheries and Oceans on its way to stop Mi'kmaqs in Burnt Church, New Brunswick, from fishing lobster without DFO sanction. The judge wouldn't play ball. Not only was Mr. Justice Denis Lordon annoyed at the delay in getting native fishermen (arrested in a violent confrontation the night before) into court, he also declined to ban them from Miramichi Bay as a bail condition. This blows a big hole in DFO's attempt to portray lobster fishing by members of the Burnt Church reserve in New Brunswick and the Indian Brook reserve in Nova Scotia as illegal. As Lordon pointed out, the Marshall decision confirmed the Mi'kmaqs' treaty right to pursue a limited commercial fishery. That right is subject to federal regulation, but not to arbitrary regulation unilaterally imposed by DFO. The Marshall decision, and previous aboriginal rights cases give Ottawa the power to regulate a native treaty right in the name of "compelling and substantial public objectives." The public objective usually cited is conservation, but the court says several others, like economic and regional fairness, and historical fishing by non-aboriginal groups, might also qualify. Even after establishing that such compelling public concerns exist in the lobster fishery, DFO cannot proceed arbitrarily or unilaterally. It must show that its method of regulation is the least intrusive upon native treaty rights. In the case of closed seasons, this will be a stretch. Closed seasons are only in part a conservation tool, and they are by no means the most effective one. Good faith negotiations It can impose regulations only after good faith negotiations with native groups whose rights they will infringe. Those negotiations must be procedurally fair to the natives, and substantively respectful of their right to fish. As the court put it, "[T]he concerns and proposals of the native communities must be taken into account, and this might lead to different techniques of conservation and management in respect of the exercise of the treaty right." This is already the case in Nova Scotia, where Mi'kmaqs hunt deer and moose in a different season, and according to different rules, than white hunters. Proportionality must also come into play in any attempt to regulate a treaty right. A regime that permitted three million white traps in Atlantic Canada but only a few thousand Mi'kmaq traps would not substantively respect the Mi'kmaqs' treaty right to a limited commercial fishery. In preparation for the 2000 fishing season, DFO attempted an end-run around this procedure. It asked native bands to accept Ottawa's unilaterally imposed rules for one year in return for millions of dollars in boats, licenses, equipment, and training. Most bands agreed, but Indian Brook and Burnt Church did not. They wanted to fish under the terms of the Marshall decision. A Marshall-based process would have looked something like this: DFO would have asked the two bands when, where, and how they proposed to fish, then evaluated those plans to see if they raised any public policy concerns. If so, the appropriate course would have been to discuss those issues with the bands, and attempt to negotiate a mutually acceptable solution. Again and again, the courts have said negotiation is the way to resolve these issues. If no solution could be reached, DFO could have referred the issue to the courts, or could have conducted a token prosecution to test the issue. "As this and other courts have pointed out on many occasions, the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi'kmaq rather than by litigation," the court said. Negotiate first "[T]he best approach in these types of cases is a process of negotiation and reconciliation that properly considers the complex and competing interests at stake. "The various governmental, aboriginal and other interests are not, of course, obliged to reach an agreement. In the absence of a mutually satisfactory solution, the courts will resolve the points of conflict as they arise case by case." DFO did none of those things. It offered bands a series of inducements - money, gear, licences - in exchange for their agreement to fish by DFO imposed rules. It portrays the refusal by Burnt Church and Indian Brook to take the bribe as "flagrant, in-your-face, illegal fishing." It responds out of all proportion to any action it has ever taken against flagrant illegal fishing by white lobster fishermen. This is a provocative, destructive way to proceed, one the courts are unlikely to endorse. ---------- email pdonham@fox.nstn.ca ---------- Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. <><<<<<>>>>><><<<<> Tsonkwadiyonrat (We are ONE Spirit) http://ishgooda.nativeweb.org/ <><<<<<>>>>><><<<<> Native News: http://ishgooda.nativeweb.org/natnews.htm Archived Daily at: http://ishgooda.nativeweb.org/natnews2.htm FREE LEONARD PELTIER! Demand Clemency! (202)456-1111 .