Choppy seas for Canada after fishing case

A deal is a deal - even if it was struck nearly 2-1/2 centuries ago.

This simple reasoning, applied by the Supreme Court of Canada to acquit an aboriginal charged with fishing commercially without a license and out of season, is having an incendiary effect in this country's Atlantic provinces.

The case is but the latest of many where an activist high court has either created "extra rights" for Canada's first inhabitants or taken overdue steps to redress historic grievances, depending on one's point of view.

Canada is not the only country to find that high-court decisions reconsidering aboriginal rights can radically change the rules for land ownership and access to resources. Over the past several years, Australia has struggled as the door has opened on so-called "native title" claims by the country's first inhabitants. New Zealand has made a strong commitment to land rights for its natives - by all accounts less grudgingly than in Australia. In the United States, the question of native land claims has a much lower profile, but individual cases continue to work their way through the courts - claims by the Seneca and Oneida nations in upstate New York, for instance.

Canada's Sept. 17 court decision was interpreted by native fishers as granting them a right to catch lobsters even out of season. They have scrambled to set traps in the water, ahead of the Nov. 29 season opening.

Nonnative fishers have been enraged, claiming that the natives will destroy lobster stocks if they fish out of season. On Sept. 26, they gave federal officials an ultimatum: Get those native traps out of the water in seven days, or we'll take them out ourselves. At the beginning of this week they made good their threat, destroying traps set by natives in Miramichi Bay, considered the richest lobster grounds in Canada.

Arson in Burnt Church

Tensions between the groups have escalated. Peace-loving Canadians have watched, horrified, as their television screens have flickered with images of arson in and around the all-too-aptly named community of Burnt Church, New Brunswick. Two pickup trucks, an empty summer cottage, and now a native sacred site have been torched.

Native warriors, meanwhile, have blocked access to the seaside wharf in Burnt Church.

The lawsuit was brought as a test case by Donald Marshall Jr., a man whose 11 years in prison for a wrongful conviction for murder has already given him a place in history books. In the present matter, the high court ruled that a 1760 treaty between the Micmac Indians and representatives of King George II of England, which granted the Indians the right to fish and sell their catch for "necessaries," translates into a modern-day right for the natives to fish commercially - that is, not just for a meager "subsistence" living, but for "a moderate livelihood."

The ruling is not only sure to have major implications for the natural resources so important to Canada's economy. It also raises questions about citizenship rights, as Christopher Manfredi, a political scientist at McGill University in Montreal, suggests. He charges the court with "writing new law ... almost making it up as it goes along," thereby creating a "fundamental revolution in aboriginal rights."

Others view it differently. University of Ottawa lawyer Bradford Morse sees not "special rights," and certainly not race-based ones, but rather a recognition of natives' "historical, political, and legal status as the original people here." Looking at it this way, he says, natives are members of an independent nation with which the British government and its successors negotiated international treaties.

Among the natives of New Brunswick and Nova Scotia, the Marshall ruling was greeted as Christmas come early. Their unemployment rates can top 80 percent, and they have been mostly cut out of commercial fishing over the years, unable to afford licenses or even, in some cases, the necessary equipment.

Government role

The government in Ottawa has drawn fire for being so clearly unprepared for the Marshall decision - perhaps because both the fisheries minister, Herb Dhaliwal, and the minister of Indian and Northern affairs, Bob Nault, have been in their jobs only since a late-summer Cabinet shuffle.

In any case, Angela Vautour, a Tory member of Parliament who represents a constituency in New Brunswick, called it "disgusting" that "the federal government has forced native and nonnative fishers to fight this out."

"They should have had a plan one way or another," Alex Dedam, a native chief, told the CBC.

Similarly, the Royal Canadian Mounted Police, the law-enforcement agency in Atlantic Canada, has been faulted for standing idly by as native traps were attacked. "We had no indication ... that crimes would be committed," RCMP spokesman Jacques Giroux told a press conference in Burnt Church.

This week, Mr. Dhaliwal has been in Atlantic Canada, trying to work out an agreement on sharing the fishery. At least two chiefs have ordered a moratorium on fishing by members of their bands, but most native fishers seem unwilling to wait until the season opens to exercise their rights.

It is a zero-sum game. If natives are allowed into the tightly controlled fishery, there will be fewer lobsters for nonnatives to catch. "I have three kids and a new home, and I'm going to have to watch someone take my livelihood away. How can I do that?" Tim Nickerson, a nonnative lobster fisher in Wood's Harbor, Nova Scotia, told the Toronto Star.

Albert Levi, a former Micmac chief in Big Cove, New Brunswick - a successor to Chief Augustine, who signed the 1760 treaty with King George - says he accepts that the fishing right can be regulated, but he would like to see natives given that responsibility.

"There's going to be some regulation," he says, but if the federal government regulates their rights, "I'm afraid they'll regulate the Indians out of the water."

(c) Copyright 1999. The Christian Science Publishing Society