PUBLICATION The New Brunswick Telegraph Journal
DATE Wednesday February 21, 2001
BYLINE JANICE HARVEYAn open letter to federal Fisheries Minister Herb Dhaliwal
Dear Mr. Dhaliwal:
Thank you for your response to my column on the controversy over native fishing rights. Your willingness to engage publicly in this issue is welcome. Let me take this opportunity to delve a bit deeper into my assertions and your response.
The concern of many New Brunswickers is the situation on Miramichi Bay, where last year the Burnt Church First Nation chose not to accept your money in exchange for giving up their autonomy on the water.
Many of us were shocked at the militant response of your department to their subsequent fishing. Besides disturbing television news footage of fisheries enforcement vessels swamping small native fishing boats, the "Christian" peacekeepers and other observers collected extensive video documentation of even more violent tactics employed by DFO officers.
That nobody was killed was more a function of good luck than good management.
To go back to Burnt Church this year with essentially the same package is to set the stage for even more aggression.
There is no indication Burnt Church will reverse its position that it does not require your permission to fish. They are not without justification.
In a press release last September, 20 lawyers said the "Marshall Decision" and the Supreme Court's subsequent clarification gave DFO only a limited ability to infringe on treaty fishing rights.
To do so, the Crown "must establish that the limitations on the treaty rights are imposed for a pressing and substantial public purpose. However, first there must be consultation with the Aboriginal People concerned. Limitations must go no further than is required. The concerns and proposals of the Native communities must be taken in to account. Different techniques of conservation and management may apply to an Aboriginal People's exercise of the treaty right."
Based on this interpretation, the lawyers concluded the actions of your department in Burnt Church were "contrary to the "Marshall Decision's requirements."
The stumbling block here appears to be your insistence you have the absolute right to establish the terms by which the "Marshall Decision" will be implemented.
Clearly, you do not. You accuse Burnt Church of unilaterally implementing its own interpretation.
The difference, of course, is you are in a privileged position to marshal the virtually unlimited resources of government - money, and if that fails physical muscle - to force your view on any dissenters.
The leverage Burnt Church brings to the table is the strength of principle underpinned by several court decisions upholding their treaty rights.
In an ideal world, this should be enough to ensure respect for their authority and responsibility for their own affairs, the basis for successful negotiation. It isn't.
Poverty, a small, scattered population, and an unsympathetic, fearful public all conspire to disadvantage them in their dealings with you. Instead of exploiting this power imbalance, the government has an obligation to respectfully and peacefully work with Burnt Church to determine a mutually agreeable exercise of their treaty rights.
Responsible people will say violence must be avoided at all costs, and it is the overarching responsibility of the state to ensure non- violent means of conflict resolution are sought and employed in good faith.
To insist on "consistency" - "take this package or else" - is to say you are willing to accept the consequences of, if not responsibility for, violence on the water when individual First Nations choose to reject your package.
Many New Brunswickers are asking themselves, "Why wouldn't you take another approach with Burnt Church?"
Is it so unimaginable that the federal government would sit down with Burnt Church, and in the spirit of the native circle, not get up until consensus has been reached on how the reserve will exercise its treaty right to fish?
Acknowledging the stake of commercial fishermen in Miramichi Bay, could they not also be part of that circle? To come with a unilaterally developed deal prejudices any satisfactory outcome of talks.
I wouldn't presume to suggest a "solution" acceptable to all parties. But it is painfully obvious neither Ottawa's nor the Maritime Fishermen's Union's "solutions" can be imposed on Burnt Church without consequence.
Nor can Burnt Church's interpretation of their fishing rights be exercised without provocation. In this volatile situation, surely everyone is obliged to moderate their posturing so serious, respectful talks can begin.
You conclude your letter by suggesting you (and not I) focus on facts and solutions. The fact is, there s more than one interpretation of the "Marshall Decision." It serves no solution to impose yours, and our terms for access to the fishery, in the shadow of the ultimate threat of force.
Again I quote Miramichi MP Charles Hubbard - a member of your party who should have some status in this dispute - who said, "We have to let native people think ... in their own terms and not try to provide white man's solutions to a native person's perception of what treaty rights are all about. For Burnt Church people, maybe they have a solution which has the same results, but which is on their own terms .... We have to have more openness on how this thing operates."
Why is that reasonable position so difficult to accept?
Yours truly,
Janice Harvey
Janice Harvey is a freelance writer and environmentalist. Her column appears every Wednesday. She can be reached by e-mail at waweig@nbnet.nb.ca .