Federal Ignorance of Law?
Recent press reports over allegedly illegal lobster fishing by First Nations have left all of us somewhat puzzled in trying to determine the truth of what is going on. First, it is clear the Mi'kmaq and some other First Nations have a treaty right to fish. Second,they are entitled not only to fish for ceremonial purposes, but for sustenance and to pursue a limited commercial fishery. Third, this right to fish commercially is subject to a federal right to regulate, upon justification, for conservation or for other compelling public purposes.
What the press reports neglect to state is that this federal power to regulate a treaty right for conservation purposes must be done in consultation with First Nations and in full consideration of any First Nation's conservation rules that may be in place.
It is patently clear that the federal authorities have been in breach of this duty to consult as required by law. From press reports, it appears that federal authorities simply assumed that federal conservation regulations were to be applied to the Mi'kmaq without question. The Mi'kmaq on the other hand are insisting that full consultation take place and that federal authorities pay proper attention to such conservation plans as the Mi'kmaq already have in place.
It is absolutely clear that the federal right to regulate must be justified, not applied blindly. For example, it cannot be assumed that a federal 'close season' on hunting or fishing is sufficient in itself to prohibit exercise of a treaty right. The 'close season' regulation must be justified with respect to all the circumstances. Moreover, the law requires that any intrusion on the treaty right go no further than is necessary and justifiable.
In Marshall (No.2) the court was very clear: "If the Crown establishes that the limitations on the treaty right are imposed for a pressing and substantial public purpose, after appropriate consultation with the aboriginal community, and go no further than is required, the same techniques of resource conservation and management as are used to control the non-native fishery may be held to be justified. Equally, however, the 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 a treaty right"
It is this federal failure to abide by its consultative duty that the press so often fails to take into account. Instead, unfortunately, the press reports fail to address the federal failure to abide by law, and, instead, tends to swallow the federal press releases which blame the Mi'kmaq and claim that they are fishing "illegally". Hopefully, Canadians will become more aware of all the facts and become leery of swallowing Fisheries Minister Herb Dhaliwal's statements that the Mi'kmaq are acting "irresponsibly", flouting "the rule of law" and and "doing a disservice" to other aboriginal communities in standing up for their rights. In fact, it is the Department of Fisheries and Oceans, not the Mi'kmaq, that is breaking the law in illegally attempting to diminish and regulate a treaty right without lawful consultation with First Nations communities. In maintaining this reckless disregard for lawful consultation, the federal authorities reveal a continuing imperialistic view of Indian country. How much longer and at what continuing expense to the tax payer will officials continue to this pretence of ignorance of the law, this refusal to acknowledge the quasi-sovereign aspects of aboriginal treaty and constitutional rights? Why not write to the Minister and ask him for a copy of his guidelines on consultation with First Nations on issues of fisheries management?