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TUESDAY, SEPTEMBER 25, 2001

The limits of the treaty rights of Mi'kmaq fishermen in Canada are again being tested with a forthcoming lawsuit and a set of criminal prosecutions recently approved by a judge.

The Indian Brook First Nation of Nova Scotia is preparing to file a lawsuit that will challenge the federal government's attempts to regulate what Chief Reg Maloney considers an aboriginal right. Under a 1760 treaty and a 1999 Supreme Court decision, Maloney says band members should be allowed to fish and trap lobster without federal interference.

A provincial judge's decision to allow the prosecution of 23 Indian Brook fishermen may help, or hurt, the argument -- depending which way the case goes. Last Friday, Judge Jean Louis Batiot set a November 5 date for a trial against the men, accused of violating federal law by trapping lobster out of season.

In their defense, the fishermen will question limits placed on their court-affirmed treaty rights. The Department of Fishers and Oceans (DF0) has required Mi'kmaq and Maliseet fishermen to tag their lobster traps, fish in season and abide by a number of federal regulations.

But Indian Brook fishermen have defined most, if not all, of the requirements. While almost every First Nation engaged in fishing has signed a deal with the government, Maloney has held out, insisting that federal officials let the band regulate itself.

So far, the government has refused attempts to self-regulate. DFO Minister Herb Dhaliwal has issued numerous warnings to the band, warning that lobster traps will be seized and fishermen will be arrested.

The trial for the men is expected to last at least a month. A related case decided earlier this year, however, does not bode well.

A judge in March found 19 Indian Brook men guilty of illegally harvesting timber on federal land. The men had claimed a treaty right to harvest but Judge Patrick Curran disagreed.

"Using a few trees to make things for personal use or incidental trade," Curran wrote in a 46-page opinion, "is not the same as demolishing entire stands of forests for sales to sawmills."

The case is on appeal.

Relevant Links:
The Marshall Case, Department of Fisheries and Oceans - www.dfo-mpo.gc.ca/COMMUNIC/Marshall/marshall_e.htm
The Burnt Church Support Site - www.tao.ca/~beinglightbeing/burntchurch
Fishing Fury, from the CBC: cbc.ca/news/indepth/fishingfury/index.html

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Mi'kmaq fishermen set traps again (9/19)
Non-Native attacks condemned (9/18)
Non-Natives raid Mi'kmaq fishery (9/17)
Mi'kmaq reject federal fishery (8/28)
Lobster season begins in N.B (8/21)
First Nation rethinking fishing plans (6/15)
First Nation plans lobster runs (6/13)
Mi'kmaq band excluded from treaty decision (5/14)
Lobster season begins in New Brunswick (5/1)
Fishing rights agreement protested (3/21)