HALIFAX (Canadian Press) --
September 7, 2000 

Crown challenges native interpretation 
of Marshall fishery decision

The federal government defended Thursday the recent seizure of hundreds of aboriginal lobster traps, arguing in court that natives don't have unfettered rights to fish where and when they want. 

A government lawyer said in Federal Court there is no evidence to suggest natives from a reserve in central Nova Scotia have unlimited treaty rights to lucrative lobster catches along the province's south shore.

"There's not a shred of evidence, just a bald-faced assertion that they have those rights," said Harry Wruck, who argued the case should be thrown out.  "They have nothing more than equitable access (to the fishery)." 

Justice Denis Pelletier reserved decision in the case after hearings that began first thing in the morning and extended late into the evening.  The Crown was responding to an application by Nova Scotia Mi'kmaq that challenges the Department of Fisheries and Ocean's authority over the fishery. 

The natives argue the federal department has overstepped its jurisdiction in regulating the disputed lobster fishery by seizing aboriginal vessels, traps and gear, and limiting them to certain seasons. 

"We have constitutional rights and we have treaty rights and we're not being allowed to exercise them in St. Mary's Bay," said Bruce Wildsmith, the lawyer who launched the case on behalf of the Indian Brook band. 

Indian Brook natives have been setting traps for weeks in St. Mary's Bay, a lobster-rich area near Yarmouth that is hundreds of kilometres from the reserve. 

They say treaties from the 1760s still give them the unlimited right to fish where they want and without Ottawa's permission. The federal government say natives are fishing out of season and endangering delicate lobster stocks now mating in the bay. 

In their application to the court, the natives say the minister of fisheries violated their constitutional right to "fish to obtain a moderate livelihood and to harvest lobster for food, social and ceremonial purposes." 

They say those rights were reinforced with the Supreme Court of Canada's ruling a year ago that said they could hunt, gather and fish year-round and without DFO licences. 

A subsequent clarification said Ottawa has the right to regulate the fishery. 

Federal Fisheries Minister Herb Dhaliwal said Thursday he believes the court will uphold his right to regulate the fishery, which he said was supported in the Supreme Court ruling. 

Wildsmith said the natives are willing to negotiate over the management of the fishery, but that it will do so only when the federal government recognizes their traditional rights. 

The natives want the court to grant an injunction that would prevent fishery officers from seizing their gear or vessels. 
The two sides have clashed violently in recent weeks as DFO officers have seized about 11 native boats and hundreds of traps. There have also been several arrests. 

Ottawa argues the band is asking the court to overrule the fisheries minister, something it claims the Supreme Court of Canada says can't be done. 

"The fishery cannot be managed by the court," Wruck said to a packed courtroom of chiefs and non-native fishermen who intervened in the case.  "What this case is really about is the applicant wants this court to be minister for a day ... and tell the minister how to manage the fishery." 

The band had asked to be able to fish up to 800 lobster traps for commercial purposes between July and October. Dhaliwal rejected the request, allotting the band 35 traps. 

Non-native fishermen say granting the injunction would both strip the minister of his regulatory powers and devastate fish stocks, valued at about $160 million annually.