What the court actually said about lobster

If violence is not to become an annual event, the legal issues surrounding lobster fishing need to be resolved.

Andrew Roman, Special to Financial Post

Publishing date: Nov 10, 2020   

Read the original version of this opinion piece here.

Lobsters sit in a crate aboard an Indigenous lobster fishing boat in Meteghan River, Nova Scotia. PHOTO BY REUTERS/JOHN MORRIS.

The recent violence in Nova Scotia over lobster fishing has raised an unresolved legal issue: do the Mi’kmaq have a 1760s treaty right to fish for lobster out of season, and if so, for how large a catch? What the Supreme Court actually said about these questions is not exactly what you may have heard.

Indigenous fishers have repeatedly said that the 1999 Marshall decision of the Supreme Court of Canada permits the Mi’kmaq to fish for lobsters without a licence, or out of season, for a “modest income.” The media have simply repeated these overstated constitutional claims.

But that’s not what the Supreme Court held. The decision actually came in two parts separated by two months. The court’s first set of reasons was a 5:2 split. The majority acquitted Donald Marshall, who had been charged with illegally catching eels, while the two dissenting judges, including Justice Beverley McLachlin, though before she was chief justice, thought the conviction should stand. But then the West Nova Fishermen’s Coalition brought a motion for a rehearing. The court refused a rehearing but did issue a second set of reasons for its decision to clarify the first one. Thus, there was one decision, explained twice, somewhat differently. Marshall’s acquittal remained unchanged, but the second set of reasons narrowed the scope for future Indigenous fishing.

n this second go-round, the court made clear that it had acquitted Marshall only for fishing for eels. But the acquittal created no broader right to fish for any other species. The court held that the treaty right to fish was not unlimited, and that the catch of each aquatic species raised different legal issues, under different fisheries regulations. Which means that rules that applied to eels in 1999 cannot be presumed to apply to lobsters today.

The fact is that, 21 years after the Marshall decisions, we have no judicial answer about lobster fishing. That is not the fault of either the Mi’kmaq or the non-Indigenous fishers who oppose them. Sometimes when the judicial process is too slow and costly and the outcome too uncertain, people take the law into their own hands. The Indigenous fishers did that by fishing for lobster out of season without a clear legal basis; and the non-Indigenous fishers did it by attacking them. Neither was justified.

The court’s policy of enforcing the deal the parties signed in 1760 is fair, but what was that deal, made 239 years ago? Justice McLachlin’s dissenting interpretation of the treaty in the first set of opinions held:

“I conclude that the Treaties of 1760-61 created an exclusive trade and truckhouse regime which implicitly gave rise to a limited Mi’kmaq right to bring goods to British trade outlets so long as this regime was extant. (Note: a truckhouse was a store that provided commodities in exchange for pelts.) The Treaties of 1760-61 granted neither a freestanding right to truckhouses nor a general underlying right to trade outside of the exclusive trade and truckhouse regime. The system of trade exclusivity and correlative British trading outlets died out in the 1780s and with it, the incidental right to bring goods to trade. There is therefore no existing right to trade in the Treaties of 1760-61 that exempts the appellant from the federal fisheries legislation. The charges against him stand.”

In the second set of reasons the unanimous court held:

“The fact the Crown elected not to try to justify a closed season on the eel fishery at issue in this case cannot be generalized … to a conclusion that closed seasons can never be imposed as part of the government’s regulation of the Mi’kmaq limited commercial ‘right to fish’… As suggested in the expert evidence filed on this motion by the Union of New Brunswick Indians, the establishment of a closed season may raise very different conservation and other issues in the eel fishery than it does in relation to other species such as salmon, crab, cod or lobster, or for that matter, to moose and other wildlife. The complexities and techniques of fish and wildlife management vary from species to species and restrictions will likely have to be justified on a species-by-species basis. Evidence supporting closure of the wild salmon fishery is not necessarily transferable to justify closure of an eel fishery.”

Despite what now seems to be common belief, the court’s 1999 decisions did not give carte blanche to Mi’kmaq fishermen to fish for a modest income. Far from it.

A mediator has now been appointed to try to resolve the dispute. That may work for this year but if violence is not to become an annual event, the legal issues surrounding lobster fishing need to be resolved. That can best be done by the federal Department of Fisheries and Oceans, on the basis of conservation and other resource management issues — as the court set out in the Marshall case.

Andrew Roman is a retired litigation lawyer.

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