September 30, 2000
 William Hipwell
  National Post

 Ottawa's lobster war against the Mi'kmaq



 The shooting has begun on Miramichi Bay. Competing allegations abound as
 to who fired the first shot, but whoever did, this is a predictable
 outcome of a federal policy that seems designed to inflame the anger
 that has been smouldering in northeastern New Brunswick.

 On Thursday last week, the federal Department of Fisheries and Oceans
 announced that the Esgenoôpetitj Mi'kmaq food fishery near Burnt Church,
 N.B., would, at 11 a.m. the next morning, "become illegal."

 This time the DFO was not merely talking about the commercial fishery at
 the centre of the months-long dispute. Now, the government threatened
 that even the paltry 40 traps used by the Mi'kmaq to catch lobster for
 food and ceremonial purposes would be seized by force. This despite the
 fact that every aboriginal nation in Canada has recognized title to land
 and resources, and a constitutional right to a food fishery established
 by more than a century of legal precedents, beginning with the St.
 Catherine's Milling case in 1888 and culminating in the Supreme Court of

 Canada's landmark 1990 Sparrow decision.

 The abrupt federal move has left legal experts reeling, as it threatens
 in its blatant unconstitutionality not only to trigger widespread
 violence between the aboriginal nations and the government, but also to
 render precarious the rights and freedoms enjoyed by all Canadians. When
 a government has become so arrogant that it feels it can with impunity
 contravene its own constitution and defy the rulings of its own Supreme
 Court, all citizens have reason to be afraid.

 Almost without exception, Canada's major newspapers and broadcasters
 wrongly report that the right to a commercial fishery is a "native
 belief" rather than a fact of law, at least as regards the Mi'kmaq.
 Emboldened by this misunderstanding, the government position has become
 increasingly intractable. In contrast, the Mi'kmaq have offered numerous
 concessions in an effort to reach a peaceful agreement, including a
 joint trap count, a voluntary reduction in fishing and an openness to
 dialogue with the Maritime Fishermen's Union.

 The Supreme Court's 1999 Marshall decision, which authorized a limited
 Mi'kmaq commercial fishery, held that any federal regulation of that
 right must be justified by a legitimate conservation concern. After more
 than a month of violent assaults by DFO and RCMP officers against the
 Mi'kmaq, Fisheries Minister Herb Dhaliwal and his staff appear to have
 finally begun to understand this. On Sept. 20, Mr. Dhaliwal and Jim
 Jones, DFO's regional director general, sent separate letters to the
 chief and council of Esgenoôpetitj ("Burnt Church" is a distasteful name
 the government imposed on the Esgenoôpetitj Mi'kmaq). These letters
 outlined, for the first time, a putative conservation concern about the
 level of lobster fishing authorized under the Esgenoôpetitj Fishery Act
 and Management Plan (EFAMP).

 Because the law matters, so do federal statements about conservation and
 sustainability. Unfortunately, DFO relies on inflated numbers and
 partial truths, raising the unsettling possibility that the government
 is manufacturing a conservation problem to justify the infringement of
 Mi'kmaq treaty rights.

 According to DFO's Jim Jones, during this fishing season, which will end
 on Oct. 7, the total Esgenoôpetitj lobster catch would total 153,000
 kilograms. This figure is based on the DFO contention that the Mi'kmaq
 set 1,700 lobster traps in the water, a figure hotly contested by the
 Esgenoôpetitj Band, which hired chartered accountants to verify its own
 claim of having set only 650 traps. Moreover, DFO bases its concerns
 about long-term sustainability and "threat to the resource" on a
 theoretical maximum of 15,000 traps in the spring fishery and 5,600
 traps in the fall fishery set out in the EFAMP for a much wider
 geographical area, and not the 650 (or, if you will, 1,700) traps
 actually in use in Miramichi Bay today. Certainly, if the Mi'kmaq
 management plan has overallocated traps, this needs to be negotiated.
 However, according to the strange logic of the DFO, since 20,600 traps
 would not be "sustainable on a long-term basis," somehow 1,700 traps
 create an immediate conservation concern justifying infringement. This
 does not even come close to what the Supreme Court envisaged.

 How significant is the Mi'kmaq lobster harvest? The federal government
 permits non-native commercial fishing interests in Atlantic Canada to
 use more than three million traps each year. Of these, non-natives in
 Zone 23 alone, which is the area covered by the EFAMP, have licences to
 242,000 traps. Illegal non-native traps greatly inflate these numbers.
 If we accept federal estimates, the Mi'kmaq of Esgenoôpetitj are using
 less than 1% as many traps as their non-native neighbours.

 Even if the Mi'kmaq set all the traps they ultimately want under their
 EFAMP plan, their Esgenoôpetitj fishery would represent less than 8% of
 the local non-native commercial fishery.

 Were it not for the gravity of the present situation, these statistics
 would render federal claims about conservation laughable. As a Mi'kmaq
 fisherman asked in a recent interview with CBC, "So we are supposed to
 save the lobsters for [the non-natives]?"

 If the conservation argument is so threadbare, why is the government so
 intent on shutting down the tiny Mi'kmaq inshore fishery? A clue may be
 found in an unlikely place: the Halifax Harbour. There, on the same day
 as the DFO "conservation" letters to Esgenoôpetitj, Fred Sears of the
 Southwest Fishermen's Rights Association sneaked on to the Bluenose II
 and chained himself high up the mast.

 His message was twofold: DFO's policy of allocating resources to large
 offshore fishery corporations is driving small inshore fishers into
 bankruptcy, and this policy is simultaneously destroying the fish stocks.

 In this regard, a brief passage in Mr. Dhaliwal's letter to the
 Esgenoôpetitj Band is revealing. Mr.Dhaliwal states that he is
 responsible not just for conservation but also for "the orderly
 management of the fisheries, taking into account the state of the stocks
 and the interests of other users of the resource." These other
 interests, as the Bluenose II protest emphasizes, are large
 corporations, and not the small fishermen cynically valorized by DFO
 spokespeople in their rhetorical battle against the Mi'kmaq.

 With an election just around the corner, the Liberals are evidently
 gambling that the violent suppression of Mi'kmaq rights will go
 unopposed by the public. In that, they have badly misjudged the decency
 and compassion of Canadians. Even worse, they are, in their obsession to
 show who is boss, setting in motion a process that could culminate, as
 it has in so many other multi-ethnic states, in a protracted and bloody
 civil war. That this has not already happened is thanks only to the
 admirable patience of the Mi'kmaq Nation and the rest of aboriginal
 Canada. The federal government must work in good faith for a peaceful
 resolution to the "lobster wars," and develop a comprehensive policy to
 resolve aboriginal nations' just claims to a share of natural resources,
 before that patience runs out.

 William Hipwell holds a Social Sciences and Humanities Research Council
 of Canada doctoral fellowship at Carleton University's department of
 geography and environmental studies.