Maritime waters calm a decade after Marshall decision
The Supreme Court of Canada handed down the Donald Marshall decision on Sept. 17, 1999, ruling that First Nations people had a treaty right to fish and sell their catch to earn what the court called "a moderate livelihood."
Timeline
- August 1993 — Donald Marshall Jr. is charged with fishing eels out of season, fishing without a licence, and fishing with an illegal net.
- 1996 — Marshall is convicted.
- 1997 — Nova Scotia Court of Appeal upholds Marshall's conviction
- Sept. 17, 1999 — The Supreme Court of Canada upholds Marshall's native fishing rights.
- Oct. 18, 1999 — The West Nova Fishermen's Coalition applies for a rehearing of the appeal and asks for the judgment to be set aside until a new hearing.
- Nov. 17, 1999 — The Supreme Court says no rehearing, but to alleviate the confusion, the Court takes the unusual step of releasing a new ruling, known as Marshall 2, to clarify points made in the original decision. It says that Ottawa does have the power to regulate the fishery for conservation purposes.
- February, 2000 — Negotiations between the First Nations communities in the Atlantic provinces and DFO begin. They eventually agree to the Marshall Response Initiative ("MRI"), which involves interim agreements giving First Nations access to existing commercial fisheries.
- 2004-2008 — The federal government implements the At-Sea Mentoring Initiative to help train aboriginal fishermen.
- 2008 — Ottawa unveils the Atlantic Integrated Fisheries Initiative, a successor program to the MRI. Its objective is to help First Nations be more transparent, accountable and business-savvy in their commercial fisheries.
First Nations fishermen started exercising that right almost immediately after the top court's decision, and that led to turbulent times in many fishing communities in the Maritimes.
First Nations people began fishing immediately with no regard for federal licensing, quotas or conservation plans.
There were confrontations on the water and on land, along with vandalism and even arson.
Remi Cormier, the president of RC Seafood, buys lobster from Mi'kmaq fishermen, including boat captain Keane Augustine of the Elsipogtog First Nation, which is also known as Big Cove.
Augustine said this smoothly running operation is very different from the tension and division between Acadians and Mi'kmaq in the wake of the 1999 Marshall decision.
"It's been settling down, and I have nothing against nobody, really," Augustine said.
"I just want to do my thing and be on my way. And also the non-natives, they're also the same way too."
For his part, Cormier said there's a spirit of co-operation now.
The new rights offered to First Nations fishermen by the Marshall decision haven't changed the way the communities interact.
"Most of the guys are just normal guys trying to make a living, average Joes like me and you," Cormier said.
"They wake up in the morning, go to work and they do the best they can as they go along in the season."
Conviction overturned
Before the Marshall decision, natives had a right to fish for food and for ceremonial purposes. Many of them quietly sold some of their catch illegally.
There was occasional tension, but it was usually below the surface. All that changed after the top court's controversial decision.
Marshall argued that an ancient treaty gave him the right to catch and sell fish for commercial purposes.
The 10-year anniversary of the landmark court ruling comes more than a month after Marshall died at the age of 55 of complications from his 2003 lung transplant.
Cormier said the federal Department of Fisheries and Oceans wasn't prepared for the ruling imposed by the Supreme Court.
"I think they were caught by surprise by a lot of things. The government was overwhelmed at the start," he said.
"They didn't know how to handle certain situations, and it made it frustrating for the natives and the non-natives. But now I think things are getting online and everyone's getting along up here, anyway."
The federal government eventually decided to offer natives a tradeoff. If they agreed to integrate into Ottawa's management rules, they'd get federal funding and training programs.
Employment, income growing on reserves
Those initiatives have created jobs on reserves, narrowing the employment and income gap between natives and non-natives.
According to a report for the Atlantic Policy Congress of First Nations Chiefs, employment and income between 2001 and 2006 among First Nations covered by the Marshall decision have grown faster than among non-aboriginal population, narrowing the gap between them.
The landed value of First Nations fisheries tripled between 2000 and 2006, while fishing employment increased 60 per cent between 2000 and 2007. Now 16 per cent of all First Nations jobs are in the fishing sector.
That reliance on the fishing industry will only continue to expand, according to the report.
It says the population in First Nations communities grew 16 per cent in 2000 and 2008. Meanwhile, the population of First Nations people in the 25 to 44 age group is projected to jump by 25 per cent in the next decade compared to a 14 per cent decline in the same age demographic in the non-First Nations population.
'Now you see more people working'
Augustine is one of the many fishermen who have been aided by the Marshall decision and the federal government's eventual response.
"It's been a long process since Marshall. It supports my family really, and I'm glad for that right now," Augustine said.
"I employ my brothers. It's a family business, really. It's been good to me ever since it opened."
He also sees the impact on the wider community of Elsipogtog, which he said has faced poverty for more than 400 years.
"Now you see more people working, and it's a little bit booming up anyway. I've seen lots of young people working out there and trying to make a living for themselves," he said.
Cyril Polchies, the president of the Richibucto Port Authority, the first aboriginal person to hold that job, said the Marshall decision is giving many First Nations communities the opportunity bring itself out of poverty.
"All bands run a deficit, and a deficit, being on welfare, government handouts — this is more of self-sufficiency for us," Polchies said.
"Moving forward, moving along commercially, it's one of the best things that ever happened to us."
Not as many jobs created as hoped: report
Although the fallout from the Marshall decision has created new wealth-generating opportunities in many communities, there are still problems.
In some communities, internal band politics affect who gets work in the fishery.
The Atlantic Policy Congress of First Nations Chiefs report states that even though jobs and economic growth have increased post Marshall, job creation has fallen far short of what bands were hoping for after the court decision.
Last month, Tobique First Nation revealed its fishery in the Bay of Fundy is deeply in debt.
In Richibucto, Claudia Sanipass, a Mi'kmaq crew member on another Elispogtog boat, said the industry could be doing better.
"There's a lot of boats that are not fishing, that are on land still. At one time, when they were fishing, everybody had a job there."
Last year, the federal government launched a new program to focus even more on governance and management.
Meanwhile, a separate negotiating process between Ottawa and First Nations is trying to come up with a modern meaning of the Marshall treaty right. And that process has been stalled.
Still, Rheal Boucher, the director of aboriginal fisheries for the Gulf region of the Department of Fisheries and Oceans, said the reality on the water is better than anyone expected immediately after Marshall.
"We thought we had a long road ahead of us. We had bridges to build, relationships to foster and enhance, and that's what we've been trying to do all along," Boucher said.
"We have now a far better relationship with all of our aboriginal groups than we did back in 2000."