John Cummins

[Speech From The Throne, October 14th, 1999]

Mr. Speaker, I appreciate the comments of the member opposite. Yes, it would be beneficial if the government could act unilaterally and fix this problem. Unfortunately it cannot. The supreme court has stated what the law of the land is, and the law of the land gives the Mi'kmaq a priority right to commercial fish. The only right the minister has to interfere is the right to interfere in the interest of conservation. That is the only way he can interfere in this matter.

The court looked at the current regulations in place and struck them down. It said that those regulations interfered with the treaty right and therefore they had no place.

What is interesting is that we arrived at this situation not unwittingly. The information that we present to the court enables the court to make decisions. It will make a decision in our favour against it, if we want to look at in those terms, but if we do not give the court the information we are at its mercy. Not only must we give them the information, but we have to be careful if we make any concessions. The government made two critical concessions when it argued this case before the supreme court.

In the first one the crown's expert witness described the prohibition on Mi'kmaq trading with others and the restriction that they only trade at truck houses. The crown's expert witness allowed that that could be interpreted by the courts as somehow a right to trade. It was anything but a right to trade. It was a restriction on a trading right, but the crown allowed that restriction on a trading right could be interpreted as a right to trade.

The second mistake the crown made was that this treaty did not mention fish as a trading item. Fish had no value as a trading item and was readily available to anybody. Yet the crown allowed and the government allowed that fish could be included as a trading commodity. From a restriction on trading, from a treaty in which fish was not mentioned at all, we arrived at a place where preferential right to fish has been given.

We have a very difficult situation. It is easy to criticize the supreme court and I have done it because it deserves to give this situation the sober second thought that it did not get by the government.

There are other issues the government did not mention that are worth mentioning. Since the signing of the Magna Carta in British common law there has existed something called the public right to fish. That public right to fish was in operation at the time this treaty was signed. This treaty ignored that public right. That should have been brought to the attention of the government because there was nothing done when this treaty was signed to revoke the public right. The government should have brought that to the court's attention. It did not and that has been allowed to stand since that time.

[Speech From The Throne, October 14th, 1999]

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.

[Speech From The Throne, October 14th, 1999]

Mr. Speaker, I am pleased to respond to the Speech from the Throne today. The issue I would like to address is the issue we discussed last night in this place in the take note debate, in particular the Marshall decision of the Supreme Court of Canada and the suggestion I made to the minister that he go back to the court to seek a stay of judgment and a rehearing of the case.

The reason I want to address that issue again is that the intentions of my suggestion have been repeatedly misinterpreted not only by the government but also by opposition members on this side of the House, both Conservative and NDP. It is sad that has happened because the reality is that if we do not go back to the court, if we continue on the path that the minister has taken, the minister will be sitting at the table with no cards in his hands and no chips on the table.

The fact is that the decision by the court has taken away the minister's bargaining position. He has nothing to negotiate. The court has very clearly allowed a native preference and a native priority to fish as a result of this Marshall decision. The court has very clearly stated that. It has also not imposed any limits on it. The court has again said that natives have the right to fish and earn a moderate living. The minister has in fact made matters worse by suggesting that he will allow that right and recognize it as a communal right.

The reality is then that rather than a fisher going out and earning a moderate living from that fishery, it could very well be expected that moderate living could apply to all the Mi'kmaq in the maritimes, all 12,000 and some-odd of them. If one out of four of those Mi'kmaq decides to exercise the right that the court has granted, there will be no room at all for anyone else in that fishery. That is the pure, hard, cold facts of the matter.

The disappointment I had with the debate last night was that nobody seemed to be speaking for the current participants in this fishery. Nobody in the House was addressing a concern about those people.

[Fisheries, October 14th, 1999]

Mr. Speaker, let me give the Prime Minister examples.

It is unclear what the supreme court means by a modest living or whether non-status natives will enjoy this preferential right to fish that is allowed by the Marshall decision.

Flawed as it is, this decision needs clarification to establish the place of non-aboriginal fishermen in this fishery, fishermen whose families have been fishing these waters for 200 and 300 years.

Why is the government refusing to return court for clarification of this irresponsible and unrealistic decision?

[Fisheries, October 14th, 1999]

Mr. Speaker, the purpose of asking for a stay of judgment is to ask the court to clarify its decision.

The month long window to petition the court to stay this decision and clarify it is up in three days. So far the Minister of Fisheries and Oceans and the Prime Minister have opted to allow chaos and violence to determine the course of events.

Is the Prime Minister now so comfortable with a race based fisheries policy that he will not even ask the supreme court to clarify its decision?

[Special Debate, October 13th, 1999]

Mr. Speaker, it is not a matter of liking a decision or not liking a decision. The reason for going back to the court is to get some guidance on what the court meant by the decision. For example, the Supreme Court of Canada failed to accurately describe moderate living. Some native advocates contend that a net annual income of $80,000 is a moderate living.

The Supreme Court of Canada did not say whether the aboriginal tax free status which exists would reduce needed fishery earnings. The Supreme Court of Canada did not say whether government contributions to aboriginal communities through the Department of Indian Affairs and Northern Development can offset earnings required from the fishery. The Supreme Court of Canada did not determine whether non-status Mi'kmaq or Maliseet are legally able to participate in the fishery. There are an unknown number of non-status Mi'kmaq or Maliseet, but it is estimated in the tens of thousands. DFO is determined that non-status Mi'kmaq or Maliseet are not eligible under the treaty. This will probably be met with a court challenge.

All I am saying is that these issues will come before the court sooner or later. Why not do it sooner? Why not get the answers now before we go down a garden path that we do not want to be going down?

[Special Debate, October 13th, 1999]

Mr. Speaker, even though the Liberal member who just spoke has a lot of support for his comments from the Conservative Party behind me, that does not mean to say that he is correct. When he said that the aboriginal fishing strategy of British Columbia was a direct result of the efforts by the government to try to enact the provisions of the Sparrow decision of the Supreme Court of Canada, he is just plain wrong, as was the judge in the R. v Houvinen case, which was recently ruled on by the British Columbia supreme court.

The Sparrow decision of the Supreme Court of Canada expressly refused to deal with the native commercial fishery. That was left for subsequent cases, namely Gladstone, Vanderpeet and NTC Smokehouse.

[Special Debate, October 13th, 1999]

Mr. Speaker, the member opposite raised the column by Jeffrey Simpson which appeared in the Globe and Mail . I quote from a couple of paragraphs:

That court ruled in 1954 in Brown v Board of Education of Topeka that the so-called “separate but equal” doctrine used to justify segregation was unconstitutional because “separate educational facilities are inherently unequal”.

It is an interesting concept when applied to the fisheries here. Mr. Simpson went on to write:

Usually forgotten is that there were two Brown cases. The next year, after hearing evidence about how the 1954 ruling should be applied, the court gave school and political authorities breathing room to implement the first decision. The judges said authorities should act with “all deliberate speed” and required them to “make a prompt and reasonable start”.

They did not, in either the first or second Brown rulings, require that the next day the existing order of things be overturned. The court was obviously alive both to the important principles it enunciated and to the need for a period of adjustment.

Would that the Supreme Court of Canada had been so alive in the Marshall case.

Given these comments, would the member opposite not think it wise and prudent to go back to the court for a stay of judgment and a rehearing of the case to give some advise to the government?

[Special Debate, October 13th, 1999]

Mr. Speaker, the Nisga'a treaty gives 25% of the salmon returning to the Nass River to the Nisga'a. Four other bands are competing for access to that resource whose treaty claims have not been negotiated.

The Nisga'a treaty is a modern version of the 1760 treaty in Marshall that the supreme court ruled on. It is a much expanded version, by the way, in that it gives natives a priority right to fish.

Seeing that there is so much consternation in the House today I would like to ask the member to his knowledge what position have other parties taken with regard to the Nisga'a treaty, given its close proximity in relationship to the treaty we are discussing.

[Special Debate, October 13th, 1999]

Mr. Speaker, it was suggested that returning to court for a stay of judgment and a rehearing was cherry picking. It is not the case. The purpose of returning to court would be to avoid the type of confrontation we have seen and to seek a clarification of the court's intent in this decision.

For example, would they permit an infringement of the treaty right that they recommended? I refer to paragraph 75 of the Gladstone decision where the court itself recognized that others had acquired rights to fish. It said that reconciliation of aboriginal societies with the rest of Canadian society may well depend on achieving that balance.

Does the member opposite not see a value in returning to the court and getting the court's opinion on how these conflicting rights could be adequately addressed?