BURNT CHURCH MI'KMAQ 2000-2001
In September 1999, a
Supreme Court ruling (R.v. Marshall) acknowledged that treaties from the 1770s held that a Mi'kmaq,
Donald Marshall Jr.,
had the right to fish for eels out of season. The Burnt
Church First Nation interpreted the judgment as meaning
that they could catch lobster out of season and began to
put out traps. The non-Native fishermen claimed that that if
this is allowed lobster stocks (an important source of
income) could be depleted.
The following is from CBC News Online, May 8, 2004 On Sept. 17, 1999, the Supreme Court
of Canada upheld the Native fishing rights of Donald
Marshall, a Mi'kmaq who had been charged with fishing
eels out of season, fishing without a license, and
fishing with an illegal net. Marshall had been convicted
on all three counts in Provincial Court. The conviction
was upheld by the Nova Scotia Court of Appeal. He then
took his case to the Supreme Court, arguing treaties
from the 1760s gave him the right to catch fish for sale
and excused him from current fisheries regulations.
The Supreme Court agreed.
It stated in its
decision that "…nothing less would uphold the honour and
integrity of the Crown in its dealings with the Mi'kmaq
people to secure their peace and friendship…" But the
Marshall decision caused chaos as parties on all sides
of the debate interpreted the ruling differently.
The 34 native bands in the Maritime provinces and
eastern Quebec that were affected by the decision
immediately began fishing lobster out of season, saying
the ruling gave them full, unregulated fishing rights.
Non-aboriginal fishermen demanded the government put a
ban on the catch, worried that lobster stocks would be
lost.
Burnt Church and Indian Brook
Burnt Church, N.B., became the hotspot of tension
between Native and non-Native fishermen. Trouble began
in the early hours of Sunday, Oct. 3, 1999, when about
150 fishing boats headed out into Miramichi Bay, one of
Canada's most lucrative lobster fisheries, to protest
against native trappers who were fishing lobster out of
season.
The demonstration turned to an ugly shouting match when
the boats returned, having destroyed hundreds of native
traps. The vandalization of fishing equipment and three
fish plants followed. Despite the violence, the Native
fishermen of Burnt Church didn't budge, refusing to give
up the Native fishing rights granted by the Marshall
decision. Mi'kmaq warriors set up an armed encampment on
the wharf in Burnt Church to protect native people
continuing to catch lobster in the bay.
Days later, Fisheries Minister Herb Dhaliwal met with
Native leaders to try to find a way to ease the
tensions. All but two of the 34 First Nations bands
agreed to a voluntary moratorium on fishing. The Burnt
Church and Indian Brook bands rejected the idea of
government regulation. The moratorium succeeded in
defusing the tensions between Native and non-Native
fishermen, at least for the time being. On Oct. 18,
1999, the West Nova Fishermen's Coalition applied for a
rehearing of the appeal and asked for the judgment to be
set aside until a new hearing.
On Nov. 17, 1999, the Supreme Court said there would
be no rehearing. However, to alleviate the confusion,
the Court released a new ruling, known as Marshall 2, to
clarify points made in the original Marshall decision.
One of the most important points of the decision,
reiterated in Marshall 2, was that the government still
had the power to regulate Native fishing for the
purposes of conservation.
Negotiations slow
In February 2000, negotiations between the First Nations
communities in the Atlantic Provinces and the DFO began,
with Fisheries Minister, Herb Dhaliwal promising to ink
a short-term deal by the spring. The deal would decide
how aboriginal and commercial fishermen would share the
resource.
But negotiations took longer than he thought. Dhaliwal
also met with commercial fishermen, some of whom were
considering selling their licenses and getting out of
the business. The Maritime Fishermen's Union criticized
the government, saying the DFO was dragging its heels.
Native fishermen were also getting frustrated. First
Nations leaders announced their people would be out
fishing in the spring whether or not a deal had been
struck. On Feb. 24, 2000, the federal government
announced it would buy back more than 1,000 commercial
fishing licenses, including boats and gear, to expand
the Native lobster fishery. By the summer, about 1,400
fishermen had offered to retire more than 5,000
licenses. In the federal budget announced in February
2000, $160 million was set aside for the DFO's response
to the Marshall decision. The money would pay for
retired licenses and economic development initiatives
aimed at helping to bring Native people into the fishing
industry.
The interim agreements
Over the following two months, the negotiations saw real
progress as the first Native bands signed agreements
with the government. By April 21, 2000, 13 bands signed
deals and others made agreements in principle. The
interim deals were different for each band, taking into
account the different sizes and interests of the various
groups, but they were generally set out to govern
fishing over the next year. They gave Native people the
same access as non-Natives to commercial and food
fisheries, providing boats, gear, training and economic
development initiatives, like new equipment or
facilities. Some bands incorporated the new deals with
the Aboriginal Fisheries Strategy, AFS, while others
opted to keep the agreements separate.
Established in 1992 to ensure stable fishery management,
the AFS was in response to the Supreme Court of Canada
1990 Sparrow decision that defined Aboriginal Peoples'
right to fish for food, social and ceremonial purposes.
By August 2000, 27 bands had signed agreements, but the
Burnt Church and Indian Brook bands still refused.
The fishing continued
In a two-week period in late July and early August 2000,
seven boats belonging to the Indian Brook band were
seized and 18 people were arrested on charges of
catching too many lobsters. The Mi'kmaq said they didn't
need the government to make sure the lobster population
is conserved because they already have their own
conservation methods in place. The Burnt Church Mi'kmaq
held their position as well.
On Aug. 9, 2000, the band members voted to reject
federal regulation of the fishery despite the
government's offer to provide five well-equipped boats
and build a new $2-million wharf. Ottawa wanted to set a
40-trap limit but the band said it has the right to set
more than 5,000 traps.
The following week, tensions rose again in Burnt Church
as enraged Mi'kmaq declared war against the DFO after a
late-night raid on several lobster traps in Miramichi
Bay. Four people were arrested, and one boat and over
700 traps were seized. Native fishermen protested by
setting up a blockade on Highway 11, a major commercial
route in the province. The Mi'kmaq claimed officers
pointed guns at them, but the DFO denied the
allegations, saying that only pepper spray was used and
one baton pulled out.
With Burnt Church fishermen continuing their lobster
catch, Dhaliwal said fisheries officers would continue
to seize traps and make arrests. But he also called the
native leaders to return to the negotiating table,
claiming the Burnt Church band refused to even meet with
his federal negotiator.
2001 season
Hoping to avoid a repeat of the violence of the previous
year's fishing season, the federal government issued the
Burnt Church Mi'kmaq a temporary license when the season
opened Aug. 20, 2001. The plan was to allow Native
fishing to go ahead while a long-term agreement was
negotiated. However, the license came with limitations
that didn't sit well with the Mi'kmaq. Band member Brian
Bartibogue called it another case of the federal
government "ramming legislation down aboriginal people's
throats."
The license restricted the fishermen from selling their
catch, limiting them to using it for food and ceremonial
purposes only. Department of Fisheries and Oceans tags
had to be on the catch. Most importantly, the license
would only last one week, until midnight on Aug. 27,
2001.
Shortly after issuing the license, the federal
government released a study that suggested fishing in
the fall jeopardizes the resource. Ottawa proposed
allowing the Mi'kmaq to use small boats to set 900 traps
for two months every fall as well as creating 50 jobs on
the reserve to study the long-term effects of the
lobster fishery. With pressure building on the day
before the deadline, Burnt Church band members blocked
all entrances to their reserve and escorted media out of
the area while continuing to set lobster traps on
Miramichi Bay.
The RCMP sent extra officers to the area and non-Native
fishermen again called on Ottawa not to allow the
Mi'kmaq to fish under different rules. After the
deadline passed with no agreement with the Mi'kmaq,
Ottawa issued a new license to allow fishing for food
and ceremonial purposes, which lasted until Oct. 20,
2001.
Federal report
In April 2002, a federal committee released a report
aimed at preventing more outbreaks of violence between
native and non-Native fishermen. The report recommended
that all charges stemming from the confrontation be
dropped and Ottawa should compensate fishermen for their
lost traps and boats.
The committee recommended that Native fishermen have the
same season as non-native fishermen, meaning Natives
would be banned from fishing in the fall. As well, the
report recommended that Native bands be issued licenses,
which they would distribute to Native fishermen.



In August, 1990, the Seton Portage railway was blockaded by the Seton
Lake First NatIon in solidarity with the Mohawk and the OKA crisis.
The B.C. Premier at the time, William Vander Zaim came calling
ostensibly to find a peaceful resolution. Instead,
shortly thereafter, the blockade was dismantled by the R.C.M.P. It did not
end there, however, media interest was on the rise all across Canada as
regard Native unrest, in general, and the intense media coverage
resulted in the increase in protests all across the country as regards
land claim issues.








