Batchewana Concerned Inherent Rights may be Violated Through Misinformation by MNR
March 5, 2009
“A press release issued by the Ministry of Natural Resources on Monday, March 2, brought to our attention that our inherent rights may be violated with statements that are a misrepresentation of us,” said Chief Dean Sayers.Chief Sayers stated, “It is of great concern to us that Ontario referenced the sale and harvest of fish taken from our waters via the requirement of a fishing permit from the Ontario government.”
The release from the MNR is regarding Mr. David Pitawanakwat, who was convicted of selling illegally caught fish and fined a totat of $3,780. It states: “Anyone who fishes commercially must have an Ontario commercial fishing licence or approval from the province.”
It’s difficult for Batchewana First Nation community Members to maintain their intrinsic and historic ability of make a living from the natural resources. “The Ontario government is issuing false information an scaring our customers away, including restaurants and grocery stores,” said Chief Sayers. “This is unethical, that the Ontario government in 2009 is continuing to put false information out there about our inherent rights to fish commercially. If there are any consumers or buyers that are concerned about the most recent propaganda being released by the MNR, please feel free to contact the Batchewana Natural Resources Department (BNR) at (705) 759-0914, ext. 233.”
“Over the past 20 years provincial and federal court cases have proven First Nation communities have inherent Treaty fishing rights, which at no point stated the requirement of such a permit,” said Chief Sayers. “BFN fishermen have historically supplied premium products to the local markets through the commercial fishery and will continue with this practice.”
“I draw the attention of the Ontario government represented by the Ministry of Natural Resources in this instance, to previous Ontario Superior Court decisions, in particular, the Agawa decision back in 1988,” stated Chief Sayers. “Our right was recognized to fish as were in the habit of doing so, including the commercial sale of those fish. There was not a requirement for the acquisition of a permit from the Province of Ontario.”
In the Simon case it was found: “that the appellant has a valid Treaty right to hunt under the Treaty of 1752 which, by virtue of s. 88 of the Indian Act, cannot be restricted by provincial legislation. It follows, therefore, that the appellant’s possession of a rifle and ammunition in a safe manner cannot be restricted by s. 105(1) of the Lands and Forest Act.” The judge in the Agawa case found this decision to be relevant and include fishing rights.
Furthermore, the Sparrow decision in 1990 also recognizes and reinforces First Nation inherent Treaty rights to fish for both personal consumption and commercial livelihood.
The following findings are taken from the Supreme Court of Canada case, R. v. Ronald Edward Sparrow: “Section 35(1) applies to rights in existence when the Constition Act 1982 came into effect: it does not revive extinguished rights.”
“The Crown failed to discharge its burden of proving extinguishment. An aboriginal right is not extinguished merely by its being controlled in great detail by the regulations under the Fisheries Act. Nothing in the Fisheries Act or its detailed regulations, demonstrated a clear and plain intention to extinguish the Indian aboriginal right to fish.”
“Federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.”
“The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under Section s.35(1).”
“Section (35) 1 of the Constition Act, 1982, provides a solid constitutional base upon constitutional protection against provincial legislative power.”
Batchewana First Nation people who are being harassed by the Ontario government exercising their inherent rights can contact Batchewana First Nation at (705) 759-0914.
“We are also, as a Nation, extending this channel of communications to other First Nation communities who are interested in stepping up to the plate to cooperatively defend our Treaty and Inherent Rights,” said Chief Sayers. “When one of us loses a right, we all lose a right.”