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From the archives

Liberal Interpretations

Making sense of Justin Trudeau and his party

Clock Watching

The nuclear threat lingers still

Spending Power

Can compassion and efficiency be combined in the use of public funds?

The Battle for Resources

Reviewing the legal puzzles

Frank Duerden

Aboriginal and Treaty Rights in the Maritimes: The Marshal Decision and Beyond

Thomas Isaac

Purlich Publishing

215 pages, paperback

The Marshal Decision and Native Rights

Ken Coates

McGill-Queen’s University Press

246 pages, paperback

In 1993 Donald Marshal, a Mi’kmaq Indian, was charged with fishing for eel in Pomquet Harbour, Nova Scotia, in violation of federal fisheries regulations. Although this appeared to be innocuous, Marshal’s actions were intended to bring before the courts the question of First Nations resource rights in Atlantic Canada. Marshal and his supporters argued that the aboriginal right to manage and harvest natural resources and sell them for financial gain had never been extinguished and was recognized in treaties signed with Britain in the 1760s. The case was of local significance because of longstanding conflict between First Nations and the federal Department of Fisheries in Nova Scotia and New Brunswick over the rights to manage fisheries; it was of national significance because it was believed that Marshal’s vindication would have strong implications for assertion of First Nations resource rights in other parts of Canada.

Marshal’s path through the courts is familiar to many Canadians. He was convicted; on appeal, a higher court upheld the conviction; but at the Supreme Court of Canada the conviction was overturned, with judges seeming to suggest that Marshal (and, by inference, any First Nations member) had broad resource rights. The decision was greeted with jubilation by the Mi’kmaq and by First Nations across Canada, who saw it as a precedent-setting decision that would assist them in asserting rights to a range of resources.

But it was met with vehement opposition by non-aboriginal resource users, who variously argued that the decision was a threat to their livelihoods and to conservation. In a virtually unprecedented move, the Supreme Court offered an interpretation of its ruling by saying that it applied only to the particular circumstances of the Marshal case, significantly reducing the Mi’kmaq’s apparent gains. The initial Supreme Court decision was represented as a shattering blow by fishers and loggers, while its subsequent translation was seen as underhand and unjust by First Nations.

These events are the focus of two very necessary books, The Marshal Decision and Native Rights by Ken Coates and Aboriginal and Treaty Rights in the Maritimes: The Marshal Decision and Beyond by Thomas Isaac. Both go a long way to present a more objective assessment, dealing not just with questions of law, but also with the pragmatic difficulties arising from the need to accommodate First Nation rights to what are now emasculated fish and forest resources. The authors’ backgrounds (Coates is an academic historian and Isaac a lawyer) are clearly reflected in their approaches. Using a writing style that veers from the journalistic to the academically arcane, Coates concentrates primarily on the historical-social context of resource management controversies in Atlantic Canada. Isaac has no equivocation about his audience. His unremittingly dry style and focus on law at the expense of social context do not invite the casual reader, but he has produced a refreshingly coherent perspective on the manner in which contemporary courts treat First Nation resource management rights.

Land and resources to facilitate British colonization of Canada were obtained largely through negotiation of treaties with indigenous populations. This policy was reinforced by the Royal Proclamation (1763), which identified treaty making between Crown and local populations as the only way to expand British interests. Despite this, in many areas (northern Canada and British Columbia) land was occupied and resources taken without the formality of treaties, and throughout Canada management and allocation of natural resources passed to government departments. As colonial populations increased, First Nations resources came under pressure—directly in instances where traditional resources (such as fish) were exploited by the newcomers for commercial purposes and indirectly where the introduction of agriculture, mining or clear-cutting led to broad degradation of traditional renewable resources. Both authors spend considerable time demonstrating that over the past 30 years much has been done to redress these injustices. Court challenges to the actions of governments and resource harvesters have taken various forms. In regions where no treaties were signed, First Nations have argued they retain title because their resource management rights had not been surrendered to government and, consequently, restrictions on their resource management rights were illegal. In areas where treaties have been signed, challengers have questioned their legality, or there has been litigation against perceived treaty violations by government.

In many instances, cases finished up in the Supreme Court, which has issued a number of progressive landmark decisions affecting First Nations resource management rights. In the 1972 Calder decision, the court intimated that aboriginal title to land and resources may exist in areas where they had not been surrendered in the course of treaty negotiations. The 1990 Sparrow decision ruled that First Nations resource management rights were mutable (not strictly bound by historic practice) but could only be modified or curtailed through explicit acts of government, and only when government could clearly demonstrate a justifiable need to do so. By 1998, the notion of aboriginal title was formally recognized and seen as possibly extending to all resources in areas where rights had not been explicitly surrendered (the Delgamuukw decision). The Marshal case was of interest because it involved a region where there were treaties, but unlike the vast majority of historic treaties in Canada, these were treaties designed to guarantee friendship between Britain and the Indians and did not involve explicit surrender of land or resource interests. Its outcome would thus have considerable significance for other regions in Canada where such rights had not been surrendered.

The approaches taken by the authors to dealing with the controversial nature of the Marshal case differ widely, with each author playing to their respective strengths. This difference is exemplified by their treatment of the Paul case. In Coates’s narrative, frustrated hope is exemplified by previous encounters between First Nations and governments over resource rights. In 1995, Thomas Peter Paul, from the Pabineau Reserve in New Brunswick, was charged with harvesting timber for commercial purposes without a licence, in violation of provincial legislation. His defence was that he had an aboriginal right to harvest timber for any purpose. The provincial court threw the charge out; New Brunswick appealed the decision to the Court of Queen’s Bench, where it was upheld; and it appeared that Paul had succeeded in asserting substantial First Nations resource use and management rights. The region’s timber industry was virtually apoplectic at the outcome, and in concert with the province took the case to the
New Brunswick Court of Appeal, where the decision was reversed on the grounds that timber harvesting was not part of Paul’s traditional culture.

Coates devotes one chapter (30 pages) to this case, using it as a vehicle to further explain the compounded sense of frustration when the apparent gains in the initial Marshal decision slipped away. In contrast, Isaac devotes only one page to the case, treating it almost dismissively and refraining from comment on its demoralizing impact on Atlantic Indian populations.

To a number of commentators and First Nations advocates, the fact that the Supreme Court, after intense lobbying, offered a translation of the Marshal decision that detracted from First Nations gains appeared to support the notion that the court is an agent of the dominant society. Isaac effectively challenges this view of events. He reviews the welter of decisions favourable to aboriginal peoples over the past 30 years, convincingly arguing that the court is predisposed to treat First Nations claims in a sympathetic manner, and here he makes—and substantiates—three points of note. First is the notion that the court upholds the “honour of the Crown”: the Crown must be generous in upholding the intention of governments that drafted treaties and intends to fulfil its promises. Second, the court recognizes the legitimacy of oral tradition and accepts it as valid evidence. Third, the court has liberally translated the intentions of the treaty makers rather than literally translating treaty documents. In discussing the subsequent translation of the Marshal decision, Isaac argues that it was not a rejection of First Nations resource management rights (as has been depicted), but was really a geographical statement—that this ruling was about one resource and not all resources, and was valid only in Nova Scotia. However, the ruling left the door open for the possible assertion of other resource rights. These rights may also exist elsewhere in Canada, but each case has to be proved on its merit. One is left to wonder whether the assertion of rights elsewhere would have been easier without the clarification, or whether the court’s clarification was intended to save First Nations a bundle of cash in lawyers fees on fruitless litigation.

Coates is at his best in discussing the social context of the Marshal case and the highly polarized attitudes of the protagonists. His narrative is firmly rooted in Atlantic Canada, and his tale is one of frustrated hope and dispossession. Disaffection in Atlantic Canada’s First Nations communities is profound. Three centuries of colonialism, loss of a land base and economic disparity have left their mark in grinding poverty, ill health, substance abuse, intergenerational stress, suicide and understandable distrust of the numerically dominant society. The population of most Euro-Canadian communities in this region is largely working class, and it is here that concern about expanded First Nation rights is strongest. These communities have existed for 300 years, long enough for recent generations (understandably but erroneously) to see the status quo as the legitimate state of affairs. With a livelihood largely dependent on harvesting fish and timber, many succeed in making only a bare living, dangerously close to the poverty line. Given this stress on natural resources, they perceive that their well-being is threatened by assertion of First Nations interests, and it is very understandable that they are fighting to preserve their precarious livelihood. Coates describes the complex social environment well, but there is a real need to move past narrative to critical social analysis. Beyond the seemingly arcane process and language of jurisprudence, the conflict was (and is) a viscerally human one between the dispossessed and the almost dispossessed.

In the end, it is this polarization that makes resolution of the issue difficult. Establishing the legitimacy of First Nations grievances before the courts is difficult enough; finding a remedy that sits comfortably in contemporary Canada is even more difficult. The human geography of Canada has changed substantially since European contact and treaty-making. The land is no longer sparsely populated, much has been alienated, natural resource stocks are stressed and any recognition of substantive First Nations resource rights has considerable repercussions for other resource users. Where they have recognized resource rights, the Supreme Court’s solution is to urge good-faith negotiations by affected parties, rather than imposing solutions, arguing that the rights of First Nations must be balanced with conservation and the wider needs of society. This approach is noble and the sentiment sits comfortably with contemporary perspectives on environmental sustainability. However, it can also appear to be sadly disingenuous, especially when the institutions that were largely responsible for resource depletion in the first place argue against expanded First Nations resource rights in the name of conservation, as was exemplified in the opposition to the original Marshal decision. The message seems to be, “Sorry there’s really not much left, and we’ll all have to work together to conserve resources.” It is at this point that the debate becomes a much broader one, a conflict between Natives whose popular (but sometimes debatable) image is one of conservationists, and non-Natives who now profess conservation but whose technological abilities and commercial demands have left the oceans and forests such a mess.

The Marshal decision gave ammunition to both First Nations and government in disputes about management of East Coast fisheries, and in their concluding chapters Coates and Isaac grapple with the question of how to resolve the issue. They do a thorough job of reviewing and exploring different options, but it is clear that the obstacles are formidable and a reader looking for a neat resolution of the issue will be disappointed. Both authors recognize that historically rooted attitudes, and the widely differing positions of a multitude of players including First Nations, commercial resource harvesters, governments and conservationists, make such a resolution difficult and take the position of the Supreme Court (and the federal government) in accepting that the very complexity of these interests makes negotiation the only practical approach. Ideally, in the short run, negotiation would serve to ameliorate immediate conflicts through accommodation of the interests of the major players, and in the much longer run to define and protect First Nations resource rights through the renegotiation of treaties. Negotiation along with financial incentive initially met with some success, significantly increasing aboriginal involvement in commercial fishery, and brought some redress to First Nations. But this is very much a short-term solution; it does little to address the broader balance of interests in the region. Ultimately, entrenched interests, and a natural environment that will not compromise, make it difficult to view the future with optimism.

Frank Duerden is a professor in the School of Applied Geography at Ryerson University. He has worked extensively on land and resource issues with First Nations.

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