I was invited to make a presentation to this Parliamentary Committee because of my writing about the Donald Marshall case and its application to the nasty violence in the lobster fishery in Nova Scotia two weeks earlier. For that writing , see my article in the Financial Post here and in my blog here.

Below is the text of my Opening Statement to the Committee:

OPENING STATEMENT OF ANDREW ROMAN   

November 30, 2020

Thank you Mr. McDonald and Committee members and your hardworking staff for inviting me. As a non-partisan witness with no economic interest at stake I am free to explain the law as I see it, while recognizing that others may see it differently.

My relevant legal experience is in analysing laws and judicial decisions, and in drafting federal and provincial legislation.  I claim no specialist expertise in either aboriginal treaty law or fisheries law. 

While preparing for today I watched some of your recorded meetings. Meeting #8 was of particular interest, specifically parts of the Minister’s opening comments.  She said that the Mi’kmaq’s constitutional right to fish was confirmed by the Supreme Court of Canada.  In the parts of her presentation that I saw she did not mention any of the species limits the Court imposed.  She also mentioned section 35 of our Constitution.  Although no one expected the Minister to provide a lengthy legal analysis, the case law is complex and commonly misunderstood. 

Litigation is better than violence, but it doesn’t necessarily provide long-term solutions.  That’s why I was happy to hear the Minister say that nation to nation negotiations are taking place.  However, to negotiate fairly the Minister must understand the law as it is, not as someone might like it to be.

Floating around in the media is the “Marshall myth”, which incorrectly says that indigenous fishers have the treaty right to catch whatever they want, whenever they want, provided it is only for a modest livelihood.  That is not the law as decided by the SCC. The Donald Marshall decision came in two sets of reasons, released three months apart.  In the second set of reasons the court backtracked, to narrow the first.  It explained that it acquitted Marshall for fishing for eels, and only to earn a modest income. The Court unanimously refused to recognize a treaty right covering any species other than eels, because each aquatic species raised different, evolving legal issues, under different conservation requirements of present and future fisheries regulations. The SCC has never recognized two classes of lobster fishers, indigenous and nonindigenous, with different rights.   

Lobsters are not eels. The Marshall decision about eels, on its face, cannot apply to lobsters, or to any other species.   

Constitution section 35 protects existing rights, it does not create new ones.  Because there is no treaty right to fish for lobsters out of compliance with generally applicable regulations, there can be no constitutional right to earn an illegal income from lobsters, whether that income is modest or otherwise. And then came the Court’s 2005 decision in the Stephen Marshall case, decided 5 years after the Sparrow case.  This narrowed the Mi’kmaq resource use rights even more closely, to what was the actual practice back in 1760, when lobster fishing didn’t exist.

Today, 21 years after the Donald Marshall decision, Canada has no judicial support for non-compliant lobster fishing. If this Committee wants to recommend authorizing the Mi’kmaq to fish for lobsters out of season, recommend a new law to do that.  Be honest: don’t hide behind the Marshall myth to pretend that the law is what it is not. That would be fake law, and inconsistent with a policy of transparency and accountability.

Questioning By The Committee

The Committee members asked questions of interest or perceived benefit to their respective political parties. I am not a member of any political party and have no partisan political agenda. That is why the answers I gave were in general the same regardless of which party was asking the questions.

Anticipating their questions, I prepared some written answers beforehand. Although the answers I gave the Committee were not exactly in the same words as in my prepared answers, the content was pretty much the same as what I had prepared. Of particular importance was another case called Stephen Marshall, no relation to Donald Marshall, decided by the Supreme Court of Canada, several years later, and based on interpreting the same 1760 treaties. By the time of the Stephen Marshall case Justice McLaughlin, who dissented from the majority in the Donald Marshall case, had become the Chief Justice, with much greater influence. And there were no dissenting judges in the Stephen Marshall case.

The text of my written answers is set out below.

The Stephen Marshall Decision

I am not qualified to give advice on who should today be authorized to fish for what.  That is a resource allocation question for politicians, not a constitutional law question.  However, there is nothing that the SCC has held in the Donald Marshall case or the Stephen Marshall case, or any other case that I am aware of, that creates two classes of lobster fishers, indigenous and nonindigenous, with different rights.  The same law applies to all fishers in the off-season. 

In the Stephen Marshall case [at 2005 SCC 43] the SCC narrowed the test from its Donald Marshall decision for determining the extent of constitutional protection for traditional Aboriginal practices. The Court held that there was no right to commercial logging granted in the treaties of 1760, the same treaties where the right to commercial fishing for eels was granted in the Donald Marshall decision.

Chief Justice McLaughlin held (at paragraph 26) that the treaties grant “the right to practice a traditional 1760 trading activity….” This further narrowed Donald Marshall’s decision about ancestral rights to those items actually traded with the British in 1760. Based on this narrowing, it is difficult to see how indigenous rights under the 1760 treaty include species such as lobster, scallop, snow crab, and shrimp which are offshore species not fished and traded in 1760. 

While today the government can grant indigenous fishers licences for these species, if these licences are different from those provided to nonindigenous fishers this is a policy not contemplated in the two Marshall decisions. Therefore, the two-class system should be authorized by a statutory instrument (i.e., a statute or valid regulation).  But any such new statutory instrument has nothing to do with 1760 treaty rights. 

When chiefs overstate the treaty rights acknowledged in a judicial decision they are doing their jobs for their people, working to get their rights expanded.  They should not be blamed for that.  But other people in government must also do their jobs, to ensure that this exaggeration of rights is not treated as being accurate.  If they don’t do their jobs they will be blamed for that.

If the government of the day wants the chiefs’ exaggeration to become real its ethical course is to pass a law to make it real and take the political praise or blame for that.  It is deceptive to pretend that the court decided what it did not decide, so as to avoid taking responsibility for changing the law.