All right.
I was saying that the minister's speech did not mention any limits on the case that was imposed by the Supreme Court of Canada. No one expected the minister to provide a long legal analysis, but the case law is complex and often misunderstood.
Litigation is better than violence, but it never provides long-term solutions. That's why I was happy to hear your minister say that the nation-to-nation negotiations are taking place. To negotiate fairly, however, the minister must understand the law as it is and not as someone might like it to be.
Floating around in the media for several years has been what I call the “Marshall myth”, that the indigenous fishers have the right to catch whatever they want, whenever they want, provided it is only for a modest livelihood. That's not what the Supreme Court of Canada held as I read its decision.
There were two sets of reasons released three months apart. In the second set of reasons, the court backtracked and narrowed the first set of reasons. It explained that it acquitted Mr. Marshall for fishing for eels, but the court refused to recognize a treaty right covering any species other than eels, because each aquatic species raised different evolving legal issues under different conservation requirements, both for present and future fisheries regulations.
The Supreme Court has never recognized two classes of lobster fishers, indigenous and non-indigenous, with different rights. Lobsters are not eels. The Marshall decision was about eels and on its face as worded cannot apply to lobsters or to any other species.
Our Constitution's section 35 protects existing rights, but it doesn't create new ones. Because there is no treaty right to fish for lobsters, out of compliance with the generally applicable regulations, there can be no constitutional right to earn an illegal income from lobsters whether that is modest or not.
Then in 2005 came the court's decision in the Stephen Marshall case, which was decided about five years after the Sparrow case. The Stephen Marshall case narrowed the resource rights even more closely to what was the actual practice way back in 1760 at which time lobster fishing didn't even exist.
So where are we today? Today, 21 years after the Donald Marshall decision, Canada has no judicial answer and no support for non-compliant lobster fishing.
If this committee wants to recommend authorizing the Mi'kmaq to fish for lobsters out of season or some other way, my advice is to recommend a new law that does that. But be honest, and don't hide behind the Marshall myth to pretend that the law is what it is not. That would be fake law that is inconsistent with a policy of transparency and accountability.
That's why those are my remarks, Mr. Chair.