I’ve linked before to Andrew Roman’s clear and informed posts on legal issues: UNDRIP and SNC-Lavalin.
We are understandably preoccupied with COVID-19 these days, but there are other things going on, including the dispute over the fishery in Nova Scotia. Here’s the concluding paragraph of Roman’s prepared statement for his recent presentation to the House of Commons Standing Committee on Fisheries and Oceans.
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.
Pretending the law is what it is not doesn’t just absolve politicians of responsibility: It also fosters a sense of grievance among members of First Nations who believe that their treaty rights are being disregarded.
I had to read Roman’s full post to get his point — which, it seems to me, you’ve missed in your excerpt above — that the treaty rights granted to indigenous fishers and loggers are those applicable in 1760. Roman would seem, then, to be an “originalist” (borrowed from the U.S. Constitution debates) who asserts that a term can only mean what the original writers intended it to mean, in their time and context. If 1760 is the defining point, would that not mean that ANY contemporary hunting, fishing, logging, and industrial practice is banned, not just for indigenous peoples but for all of us?
Jim T
Jim – Would Roman’s view ban all contemporary hunting, fishing, logging, and industrial practices? I don’t see why. In the absence of a special right to engage in an activity, it just means it has to proceed under current legislation, which applies equally to everyone.
Isabel – I guess I too am an originalist. I would be happy to see the ‘First Nations’ hunt and fish at any time of the year with weapons and boats/canoes that they make with their own hands. When those same ‘first nations’ want to use weapons, tools and boat developed by the ‘white nations’ to hunt and fish at any time of the year, then I have a problem with the logic of it all.
John – Well, I don’t think the treaty wording constrained the methods First Nations could use, but it did (apparently) define the right narrowly in other ways. As you know, it’s hard to write a clear contract that will apply for only 5 years – try writing one for 150 years!
Interesting. One segment of society should operate as if they were pre-contact but the other segment takes the technological advantages that have been made since that time. If we were all to operate as per the pre-contact time then there would be no one with whom to disagree.
I am suspicious that the Supreme Court of Canada had more data/ arguments to consider than those to which I have been exposed. Therefore, I need to abide by their wisdom
Barry – I don’t think that Roman’s position is that First Nations must live in accordance with pre-contact technology. What he is objecting to is politicians misrepresenting what the Supreme Court actually decided and thereby assuming/creating/granting rights without the benefit of legislation or public debate/oversight.