My colleague says I did. Yes, I did, but it seemed that I was a voice in the wilderness in this place.
If the federal government believes that non-native fishermen have a place in this newly defined fishery, it ought to say so. If the Governments of Nova Scotia, New Brunswick, Prince Edward Island and indeed Quebec believe that non-aboriginal fishermen have a place in this newly mandated fishery, they ought to say so. If other members of the House believe that non-aboriginal fishers have a place in this fishery, they had better say so.
It is going to take more than just saying so. It is going to take convincing the minister to go back to the court to seek a stay of judgment. The reason for that is quite simple. If he goes back and seeks that stay of judgment, it is going to give him some bargaining chips. He will have something on the table in front of him that will allow him to negotiate from a position of strength. As it is now, he has nothing. The courts have given the proverbial ranch away.
The question is: how outrageous is this request to seek a stay of judgment? Is it somehow trying to avoid the decision? Is it somehow trying to work around the decision and avoid it? No, it is not. The stay of judgment is asking the court to back off to allow for a cooling off period. It is asking the court to define its intentions with regard to, for example, a moderate livelihood, and to define or clarify whether non-status natives are going to be covered by this decision.
This would give some guidelines for the minister to take to the negotiating table. This would allow the minister to bargain from a position of knowledge. If no effort is made to define the rights of non-status natives, if there is no effort made to define whether or not the courts were including them as people to be covered by this treaty, it is best to know that now because as sure as the Lord made little green apples that matter will end up in the Supreme Court of Canada. If it is not done now at the request of the minister, it will be done two or three years from now. It will be there. We could have two or three years of negotiation with the Mi'kmaq people to try to find a place for non-aboriginal fishermen in the newly mandated fishery, and after two or three years of debate find all of that tossed out the window because all of a sudden we have about another some 36,000 non-status natives at the table as well saying that they too have a priority right to fish as a result of this treaty.
It is critical that a decision is made to go back to the court. That decision has to be made within the next three days, because the government had 30 days from the time the decision came down to ask for a stay of proceedings and for this redefinition. If the government allows that time to go by without making application, it has lost it. There is nothing on the table. The minister has given it up. He has walked away. He has turned his back on fishermen in the maritimes. It is as simple as that.
Why my request would be denied by the NDP and by the Conservatives is beyond me. Why they would deny strengthening the minister's hand so he could clarify the situation that is before us, so he could determine the level of participation of non-aboriginal fishermen in this fishery, is beyond me. Why would they deny guaranteeing non-aboriginal fishermen access to this fishery?
As I said, there is no guarantee now that there will be room for non-aboriginal fishermen if this decision goes unchallenged. Clearly the Mi'kmaq could use up the total access that we now have to the resource. There is no question at all that they have a priority right to that fish and could very well utilize the total allowable catch we now have.
The request that I made is not outrageous. Last night the member for Vancouver Quadra mentioned an article by Jeffrey Simpson which appeared in the Globe and Mail . In that article Mr. Simpson was referencing the 1954 decision of the U.S. supreme court in Brown v the Board of Education at Topeka. That particular ruling challenged the separate but equal doctrine which had allowed for the segregation of educational institutions in the southern United States. It declared that separate educational facilities were inherently unequal.
I would like to apply that consideration to the decision the supreme court reached in the Marshall case. That information should be presented to the court when we ask for this stay, because I do not think it was the intention of the court to create this separate but equal fishery.
If we look at the Gladstone decision of the Supreme Court of Canada, that decision gave the Heiltsuk band of the central coast of British Columbia the right to fish herring roe on kelp. It said they had an inherent right to fish herring roe on kelp, but at the same time it acknowledged that others had also acquired rights.
If the government went back to the court it would acknowledge that others have rights. I would advise the government to seek that balance and perhaps some give some guidance on how that balance could be achieved. Unless the government seeks the stay, I do not think we will have the benefit of that advice from the courts.