SCOC First Nations Lobster

Posted on October 24, 2020
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I’m not a lawyer so perhaps expat Miramichier, Rob Currie, Dean of the Shulich School of Law, Dalhousie University,  will correct or clarify this.
Several pundits and citizens have posted criticisms of the Supreme Court of Canada for failing to define what “A moderate livelihood” means with regard to First Nations fishing rights.
To me, what the court was clearly saying it is not up to their court to decide. For one thing, courts do not make law, they interpret it. In some cases, their decisions have a big effect on law but the courts can only say what the law is, or cannot be. They can’t say what it should be.
The main thing they said, I believe, is they have limited jurisdiction over First Nations’ fishing rights. I believe they have ruled non-indigenous rights can be subject to conservation limitations.
Beyond that, however, I think they are saying the definition of those rights is not up to the court or the federal government to define. Our forefathers forgot to cheat the First Nations out of a few things, including their fishing rights, when they negotiated the treaty regarding sharing of resources.
Our courts and our government, therefore have to negotiate with First Nations regarding any change in those rights.
They can no more summarily ignore or change those rights than Danish citizens could ignore or change our laws or regulations while in Canada.
A better example might be that Americans cannot bring hand guns or automatic weapons into Canada although they have the right to have them at home.
Canadians find it obvious to the point of being hilarious that Americans turn up at our border every year insisting that because the Sheriff they elected at home deputized them, they can bring their guns into Canada.
Many of us don’t it find it as obvious or funny that we cannot just say to the First Nations, our law trumps the treaty we signed with you.
Neither do we have the right to specify which treaty rights we renegotiate.
First Nations leaders point out that when we want to renegotiate, it is always to add restrictions on their rights.
“If we are going to open the treaty for renegotiation,” they ask, “why not open the entire treaty?”.
It does not seem our government likes that idea. In any case, after 20 years, it has not happened and cannot until First Nations agree to the parameters.
After the violence over the same lobster issues at Burnt Church occurring now in Nova Scotia, there was a commission appointed to hear opinions from the public. Roger Augustine, Regional Chief, and Mr. Justice Guy Richard interviewed me. I suggested one justifiable solution would be to turn the fishery over to the First Nations and let them operate its licensing and regulation. Chief Augustine’s and Justice Richard’s body language indicated they considered that the most outlandish and unlikely idea they’d heard.
That gives you an idea of how much weight all of us, including First Nations members think we give to treaty rights.
Just don’t blame the Supreme Court for not solving the issue.
They know they do not have sole jurisdiction.          DAC

Rob Currie’s reply:

I’m no expert on treaty rights, David, but I think you have expressed it correctly. The SCC might have had jurisdiction to go deeper on defining the treaty rights, but it didn’t have the evidence before it to do so, and in any event it quite correctly saw that there would be far more legitimacy if a negotiated solution was reached; their goal in Marshall 1, I think, was to try to set the scene for the negotiations. The Marshall 1 judgment is deeply flawed in a number of ways, and it’s arguable that the court made some mistakes, but that is water under the bridge now, as they say. The second Marshall decision did indeed clarify that the “moderate livelihood” right was nonetheless subject to regulation for conservation purposes.




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