A federal bureaucrat's assertion that Donald Marshall Jr. would be arrested if he went fishing for lobster today shows how little progress Ottawa has made in living up to the landmark Supreme Court decisions that bear Marshall's name.
It wasn't just the words spoken by Paul Sprout, who lugs around the weighty title of Associate Assistant Deputy Minister for fisheries management; it was the amalgam of machismo and condescension in his voice.
"You hear a lot of opinions about this," he said, "But I deal in facts."
The facts, according to Sprout, are that even as it affirmed the Mi'kmaq right to fish for a moderate living, the court said "it's a regulated right ... not something you can go out and do anytime, any place in any manner."
Like most Department of Fisheries and Oceans (DFO) statements on Native fishing, this might be called a selection of facts, adding up to less than half a truth.
The court did confirm Ottawa's power to regulate native fishing, but it's a sharply limited power, not one the DFO can exercise, to borrow Sprout's phrase, "anytime, any place in any manner."
The Marshall decisions, like previous Supreme Court judgments on Native rights, allow Ottawa to infringe upon Native rights only in pursuit of a pressing and substantial public interest, like conservation. Even then, Ottawa must act in a manner consistent with "the honour of the Crown" and its fiduciary responsibility to Canada's Aboriginal people.
In practice, this means Ottawa must deal fairly with Mi'kmaq fishermen, both substantively and procedurally. It must consult them in a bona fide manner.
Its regulations must accommodate their right to fish. It must seek the least intrusive way of achieving its overriding policy goals.
In the 2 1/2 years since the Marshall decisions, Ottawa has never consulted Mi'kmaq on its proposed regulations. It has simply insisted they follow existing rules for white fishermen, and vowed John Wayne-like reprisals against any "Injuns" ornery enough to defy them.
"We'll be there," DFO tough guy Andre-Marc Lanteigne said last week. "We're ready for anything, our people are trained, we're well-equipped."
The existing rules for white fishermen are not the only route to conservation. Indeed, in most fisheries, DFO rules have failed to conserve stocks. A policy that respected Supreme Court decisions would, at a minimum, require Ottawa to consider seriously alternative conservation proposals put forth by various Mi'kmaq bands.
The DFO refuses to consider a rights-based fishery, at least in the short term. Instead, it offers to play what Native-rights lawyer Bruce Wildsmith calls, "Let's Make a Deal" - throwing money, boats, and gear at individual bands in return for their acquiescence to existing white rules.
Why not evaluate the impact of Native fishing proposals on conservation, especially since only a relative handful of boats and traps are involved? Because the hyperventilated reaction of white fishermen to the Marshall ruling makes Ottawa fearful of the political fallout from letting Natives fish when whites can't.
Is this a pressing and substantial public policy objective, or just political cowardice? Is it respectful of the law, as laid down by the Supreme Court?
The Shubenacadie band has been trying for a year to get a Federal Court ruling on that question. The DFO's Justice Department lawyers have pulled out every legal stop in efforts to keep them from getting one.
The band seeks a judicial review of the DFO's refusal to consider its plan for fishing in St. Mary's Bay last summer, as well as damages for destruction and seizure of fishing gear, and for assaults on, and false imprisonment of, fishermen.
The fisheries department tried to strike the band's statement of claim. When the court said no, it appealed. It appealed the court's decision to grant intervenor status to the non-status Native Council of Nova Scotia (but not the decision to grant two provinces and two white fishermen's groups the same status).
It has now filed a second motion to strike the Shubenacadie band's statement of claim, and a motion to keep certain documents out of the appeal court record.
As long as the DFO can postpone judicial review, it can continue refusing to implement a rights-based fishery. Natives who object are subject to beatings, boat-rammings, and seizure of gear and boats - not to mention arrest and prosecution.
Those are the facts Associate Assistant Deputy Sprout and tough guy Lanteigne prefer to overlook. Their omission extends and deepens the centuries-old legacy of betrayal Marshall was intended to redress.
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