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.