From: William Hipwell, M.A., Ph.D. Candidate
Dept. of Geography and Environmental Studies
Carleton University        http://www.carleton.ca/~whipwell 
printed in the Ottawa Citizen
September 13, 2000

The editor chose the title, which in my submission was "Burnt Church and the future of
Canadian federalism".  Otherwise editorial changes were insignificant, and
I am content with the form in which the article was published.  Freelance
op-eds are not put on the Citizen web-site, so I am sending this for your
information and further distribution.  - Bill Hipwell
Comments may be sent to letters@thecitizen.southam.ca 

An Act of Defiance
by
William Hipwell

As we brace ourselves for what seems to be inevitable further violence on
the waters near Burnt Church, N.B., we should be asking not just how our
government has strayed so far from the Canadian principles of peaceful
negotiation, but also why such an historic opportunity is being squandered.
 For far more than being about the "rule of law" versus "chaos", the Burnt
Church lobster dispute is about the very nature of federalism in Canada.
In order to understand why this is so, it is necessary to discard the
simplistic and often racist generalisations that have dominated public
discussion.  We hear about "the Natives" and their ostensibly illegal
lobster fishery.  Commentators suggest that it is time we revisit the
"aboriginal question" in Canada, and extremist politicians dare even talk
of abrogating the treaties which recognize the rights of aboriginal groups
over natural resources.
Let's be clear about something:  Burnt Church is not about "Native
rights", but rather about a specific set of treaties, signed, as the
Supreme Court of Canada put it, in the spirit of "honour and integrity",
between the British Crown and the Mi'kmaq Nation.  The Crown of the day did
not harbour racist illusions that all aboriginal people on the continent
were the same, but recognised that scores of aboriginal nations, more
diverse than the nations of Europe, used and occupied the lands of the "New
World".
This recognition led to the signing of separate treaties that reflected
historical and geographical specificities.  In the case of the Treaties of
1760-1, upon which the Supreme Court of Canada's Marshall decision is
based, the Crown recognised the political and military power of the
Mi'kmaq, which the British desperately needed in order to prevail against
the French, and more importantly, conceded what amounted to a limited
Mi'kmaq territorial sovereignty in exchange for assistance and co-operation.
The crux of the problem today turns on what amounts to a constitutional
error.  The British North America Act of 1867, in outlining the
architecture of federalism in Canada, failed to take into account the
treaties which had been signed with Canada's pre-existing nations.  The Act
purported to grant the provinces exclusive legislative control over all
natural resources except the fisheries, responsibility for which was by
default vested with the federal government.  Yet the Treaties of 1760-1 had
granted a certain measure of control over the use and management of natural
resources, both land-based and marine, to the Mi'kmaq Nation, just as other
treaties had affirmed the rights of aboriginal nations over resources in
their territories.  As such, subsequent legislation of the BNA Act was in
conflict with these treaties, and therefore the design of federalism was
fundamentally flawed.
The Marshall decision recognised two things in particular:  first, that
every Mi'kmaq citizen has a right to harvest fish for commercial sale; and
second, that existing federal fisheries legislation when applied to the
Mi'kmaq is illegal.
Furthermore, while conceding a federal right to regulate a Mi'kmaq
commercial fishery, the Marshall decision required that any such regulation
must be undertaken only after fair negotiations with the Mi'kmaq, and must
represent the least intrusive way of infringing on the Mi'kmaq treaty right
in pursuit of an overarching policy objective such as conservation.
Yet the Burnt Church lobster fishery is not, as Fisheries Minister Herb
Dahliwal asserts, a situation of "chaos" where people are fishing "whenever
they want, whatever they want".  By contrast, the Mi'kmaq have created the
"Esgenoopetitij (Burnt Church) Fishery Act and Management Plan" which DFO
scientists have admitted is, from a conservation standpoint, as sound as
any existing DFO regulations.  Moreover, the 6000 traps proposed by the
Mi'kmaq management plan represent only a fraction of the traps licensed to
non-Native fishermen in the same area.
So, given the lack of a conservation objective, the DFO has decided to
disregard the Supreme Court ruling and proceed with arrests and destruction
of Mi'kmaq gear, at great risk to human life.  These actions can at best be
considered contempt of court.  The silence of Prime Minister Jean Chretien
on the issue is inexcusable. 
When Alliance Leader Stockwell Day speaks flippantly about the
unacceptability of "race-based" resource rights, he displays a fundamental
ignorance of Canadian law and history, and an unwillingness to contemplate
the kind of real "reform" that Canadian federalism requires.  This is
ironic, for the treaty rights of various aboriginal nations may well
provide precisely the impetus required for devolution of federal powers to
the community level long envisaged by the Reform-Alliance continuum.  When
Section 35 of the Constitution Act of 1982 affirmed existing aboriginal
treaty rights, it necessitated an eventual re-division of powers under
federalism.  The recognition of various aboriginal nations' pre-existing
rights to resources negates any subsequent assignation of identical powers
to the provinces or federal government.
To rectify this, the Supreme Court, or perhaps even the governor-general,
must strike down the BNA Act -- now called the Constitution Act of 1867 --
and require the federal government to redesign the constitution in such a
way as to recognise that at the federal table there are not just ten
provinces, but numerous aboriginal nations as well.  We need to reject the
Canadian mythology of "two founding peoples" or "four founding provinces"
and recognise that the aboriginal nations with whom treaties were concluded
are an essential part of the political foundation of Canada.  It is time to
contemplate a renewed Canadian federalism where there are not ten, but
perhaps as many as fifty or more "provinces", including aboriginal nations,
and where emerging regional differences within existing provinces are
recognised.  Certainly this would be an essential step toward safeguarding,
for example, the rights of the Cree, Mohawk, Innu, or even the English
"minorities" in Québec.
While we are at it, we could also use such a constitutional reconstruction
to revisit the question of centralised federal government control over
fisheries.  It has become almost trite to point out that DFO management,
weighted heavily in favour of large, off-shore fisheries corporations, led
to the collapse of the Atlantic fishery, and more recently, the precipitous
decline of the Pacific salmon.  The Esgenoopetitij Fishery Act and
Management Plan could easily serve as a model for local resource-use
management which would accommodate treaty rights and the demands of inshore
fishermen for greater control over their livelihoods.  
Such solutions to what is in essence a constitutional morass would be
quintessentially Canadian, based as they are on flexibility and
accommodation.  Instead, we are treated to a reactionary stance by agents
of the federal government, replete with speed boats, helicopters, riot gear
and firearms.  What a squandered opportunity.  What a national disgrace.

William Hipwell holds a Social Sciences and Humanities Research
Council of Canada Doctoral Fellowship at Carleton University.  His research
focuses on Mi'kmaq management of natural resources.

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