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Jull, Peter --- "Canada's Atlantic Indigenous Fishing Decision" [1999] IndigLawB 82; (1999) 4(24) Indigenous Law Bulletin 18

Canada's Atlantic Indigenous Fishing Decision

by Peter Jull

On 17 September this year, the Supreme Court of Canada decided by a 5-2 majority in R v Marshall that the long-ignored fishing rights of Indians guaranteed in a 1760 British Treaty of Peace and Friendship must be honoured.[1] The Supreme Court found that although not explicitly included in the final Treaty document, there was an unexpressed intent implied in the negotiation of the Treaty to allow commercial sale of fish in general. It was crucial to ‘the honour and integrity of the Crown’ to respect this interpretation of the spirit of negotiations between indigenous and non-indigenous parties to the Treaty.[2]

The decision deals with so many and such interesting matters of law, history, and indigenous-white ethno-politics that it should be read by anyone with an interest in those fields. The political fallout from the decision has occupied the front pages and evening television news in Canada for the month since it was handed down. Non-indigenous opinion has been characterised at times by real fury, provoked by the prospect of indigenous fishers being allowed to fish when the fishing season for others is closed, especially in a context where some fish stocks are endangered.

Unlike the situation in Australia after Mabo and Wik, Canadian governments do not propose to legislatively override indigenous rights identified by the courts, and have specifically rejected such a 'solution' in this case.[3]

As usual, the situation is full of ironies; it is the white settlers and their governments, not the Mi’kmaq, who have been responsible for devastating the Canadian and Atlantic fisheries. After the grim fisheries news of the past decade in Canada's Atlantic provinces, an indigenous group has suddenly provided a scapegoat. For their part, the Mi’kmaq and other Indians in the region have been trying to calm tempers and provide an orderly context for negotiating a political accord to resolve matters. The Federal Government has now named an experienced indigenous claims negotiator to develop such an accord between the various parties, including indigenous and non-indigenous fishers, and provincial and federal governments. It will be interesting to see whether such a political accord is an appropriate tool for resolving not only constitutional matters and questions of lofty principle, but also for dealing with the political emergency and social unrest which have followed in the wake of this legal decision.

Peter Jull is Adjunct Professor of Government at the University of Queensland

[1] See decision at: http:/ marshal2.en.html

[2] Ibid., Binnie J.

[3] Cf' ‘Treaties must be upheld’, Ottawa Citizen, (Ottawa) 16 October 1999.

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