And now:[EMAIL PROTECTED] writes: From: [EMAIL PROTECTED] Date: Wed, 24 Nov 1999 00:36:06 EST http://www.canada.com/cgi-bin/cp.asp?f=/news/cp/stories/19991117/1529036.html Tue. Nov. 23, 1999 Native fishing rights regulated: top court SUE BAILEY OTTAWA (CP) - Native people who claimed broad treaty rights under a recent Supreme Court of Canada decision read too much into the ruling, the high court said Wednesday. In the so-called Marshall decision, "no evidence was drawn to our attention, nor was any argument made . . . that trade in logging or minerals, or the exploitation of off-shore natural gas deposits, was in the contemplation of either or both parties to the 1760 treaty," said the court. In a unanimous judgment, the court denied a request by an Atlantic fishermen's group to rehear the controversial Sept. 17 judgment that sparked violent clashes between East Coast natives and non-natives. Six questions raised by the group were either answered by the original ruling or would inappropriately introduce new issues, says the judgment. But in a rare 30-page explanation of its refusal, the high court clarified the September decision for which it has taken much flak. The ruling acquitted Nova Scotia Mi'kmaq Donald Marshall of catching and selling eels unlicensed and out of season. The 5-2 decision recognized the narrow right of Mi'kmaq and Maliseet people to fish, hunt and gather for a "moderate livelihood" under 1760 and 1761 treaties. Jubilant native fishermen quickly incensed non-natives by laying Maritime lobster traps out of season. Other native groups contended the ruling allowed them open access to everything from Crown-land forests to offshore natural gas deposits. But the court made clear in its September judgment - and repeatedly stressed again Wednesday - that such rights are subject to federal regulation. When it comes to fragile resources such as lobster, the fisheries minister may "seek to justify the limitation on the treaty right because of the need to conserve the resource in question or for other compelling and substantive public objectives," the court said Wednesday. "Equally, it will be open to an accused in future cases to try to show that the treaty right was intended in 1760 by both sides to include access to resources other than fish, wildlife and traditionally gathered things such as fruits and berries." In other words, it will be up to the federal government to set and enforce regulations - species by species - that it can prove are justifiable. Native people must show that treaty rights claimed reflect historic practice and the spirit in which such agreements were originally struck. Federal officials set native lobster licence limits, seized native fishing equipment and laid some charges. The judgment is a warning to Atlantic aboriginal people that treaty rights are subject to limitations and the courts won't ignore that, said John McEvoy, who teaches aboriginal law at University of New Brunswick. The Marshall ruling fallout was a case of vested interests reading what they wanted into a decision while ignoring other parts, he said. Marshall's lawyer was pleased the high court stressed native people should be consulted before fishery guidelines are set. Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. <><<<<<>>>>><><<<<> Tsonkwadiyonrat (We are ONE Spirit) http://www.tdi.net/ishgooda/ <><<<<<>>>>><><<<<>
