Fisheries committee  I think the misapprehension in the Marshall case is that it created treaty rights to catch almost any species of fish. In the written document I've submitted in the brief, I say that the case actually decided only about eels. It decided what was necessary to decide the case of Mr.

Fisheries committee  I see a problem, short term, where if there are discussions being had—as there should be—with indigenous people alone and others are left out, then if you have a committee of everyone coming together at some point, those who were left out of the first discussions are going to be suspicious about whether there isn't a hidden agenda for the second discussions.

Fisheries committee  Your report four said that it's “beyond the scope of the Committee to define what would constitute a moderate livelihood.” My comment to that would be that no one can do that and you shouldn't even try. It's a bad idea. Let it go. There's a lot of that sort of thing, where you're inviting or asking the Government of Canada in your report number four to work out what that is, to help define it and so on, but it's a discriminatory requirement and it shouldn't be there.

Fisheries committee  Thank you for inviting me. I'm going to explain the problems with implementing the two Marshall decisions as I see them. Before I do that, I want to compliment DFO and the minister for carrying out the recommendation of the Supreme Court of Canada to use negotiation rather than litigation to resolve issues with first nations.

Fisheries committee  I don't read the decision that way. I think it's silent on that issue.

Fisheries committee  What usually happens in these cases is that if there's a split decision coming down and they want unanimity, everybody has to put a little bit of water in their wine and make a compromise. There was a compromise when you look at the second set of reasons because the tone of it was somewhat different.

Fisheries committee  I don't see anything in the decision that gives you that level of clarity, Mr. Calkins. I think the problem with moderate livelihood or income is that the Supreme Court of Canada didn't quite know what to do, so it kicked the can down the road and Mr. Zscheile is now left with a battered can and has to try to deal with that.

Fisheries committee  That's a difficult question to answer when you talk about an equal footing, because they aren't on equal footing, never have been, and never will be. That's because one group has treaty rights, and the other group doesn't. My position isn't all that different from Mr. Zscheile's on most of the issues we have been discussing.

Fisheries committee  There's a problem with this whole modest income thing. It has never been defined, so it's like a Rorschach test: you read into it what you want to get out of it. As I said in my opening remarks, if there's no right to do something, you can't earn a modest income doing it. The key part of the Stephen Marshall decision was paragraph 26, where Chief Justice McLachlin said that the treaties grant the right to practice a traditional 1760 trading activity.

Fisheries committee  Those things happen. There are lots of ambiguous decisions.

Fisheries committee  I don't think it needed to be clarified. I think someone just tried to prevent it from happening, and the Supreme Court had to comment on that—

Fisheries committee  I can think of hundreds of them. There are so many Supreme Court of Canada decisions—

Fisheries committee  Well, not two months later, but eventually.

Fisheries committee  The only reason that came up was that someone raised it. When the Stephen Marshall case came up, the same treaty was interpreted, and the court felt an obligation to comment.

Fisheries committee  I see the two Donald Marshall sets of reasons as being one decision explained twice. There was only one decision, and the decision was that Donald Marshall was not to be convicted. However, in the first reasons for the decision, there was a strong dissent from Justice Beverley McLachlin, who was not known as a right-wing zealot but as a middle-of-the-road judge.