November 25, 2000 Saint John, N.B., Telegraph Journal

Understanding the Queen v. Marshall, Telegraph Journal

Ken Coates's, The Marshall Decision and Native Rights, provides the reader with a historical overview of the bitter relationship that the Mi'kmaq had with the British invaders up to the Burying of the Hatchet Ceremony in 1761, and the oppression the First Nation has endured since. The former university of New Brunswick professor ponders the effect that the affirmation of the 1760's treaties will have on future relationships between First Nations Peoples and other Canadians. This includes possible disputes resulting from either expansion or diminishment of treaty rights by the courts. Relying heavily on information gleaned from newspapers, it is a digest of the controversy that followed the Supreme Court ruling allowing Nova Scotia Mi’kmaq Donald Marshall to fish commercially - a drama which unfolded over the past year and continues to unfold in Burnt Church and other reserves. The haste the author wrote it in is often reflected in its content.

In the opening paragraph of the book's Preface Coates relates: "the events of the fall of 1999 caught Canadians unaware. No one, Mi'kmaq, Department of Fisheries personnel, officials from the Department of Indian Affairs, academic experts, or the public at large - anticipated either the specifics of the case of Donald Marshall Jr or the controversy that followed." The Author's contention that the Mi'kmaq were universally blind-sided is not true. In fact many Mi'kmaq leaders have historically predicted that Court Decisions affirming aboriginal rights with wide ranging legal and social implications would very probably engender strong negative reactions from many special interest groups and bigots.

Such foresight caused both the Confederacy of Mainland Micmacs and the Union of Nova Scotia Indians to often warn both levels of government that the litigation route was dangerous and would not produce satisfactory results for both sides. I personally delivered such warnings when employed as CMM Executive Director (1986 to 1994) and promoted strongly the notion that an out-of-court equitable comprehensive aboriginal rights deal could make us all winners. Officialdom responded by averring that they were on the side of "right" and therefore would prevail in court. They were so confident of winning that they never for a moment envisioned dealing with the fallout from a major victory by First Nations.

Now to the meat of Coates's manuscript. It appears from some of his statements that he may have relied heavily upon sources with limited appreciation of the facts as they exist, or who were willing to manipulate the facts to suit self-interest.

For instance, his assumption that off-reserve registered Band Members are almost completely alienated from their Bands and thus receive no benefits is erroneous. The truth is that most off-reserve Registered Band members maintain intimate contact with their bands and can access education assistance, health services, treaty rights, etc. As an off-reserve Band Member the only thing that really bugged me about the past situation was that I couldn't vote in Band elections. This has now been rectified.

Then on page 65 the author makes an unqualified, and thus very inaccurate, statement about the extent of the benefits Status Indians receive from government - which is sure to add to the arsenal of misinformation that bigots use against us: "The list (of benefits) is substantial enough: exemption from income, sales and consumption taxes, grants for college or university education, "free" houses; Aboriginal harvesting rights, subsidies for various health and cultural initiatives, and special employment and welfare programs."

I'll respond to Coates's assertions in the order listed except for harvesting rights, which are not benefits received from government but aboriginal rights:

Taxes: Tax exemptions are very limited. Status Indians working for off-reserve entities pay full income taxes on income earned. Sales and consumption tax exemptions are limited to goods delivered to a reserve for on-reserve consumption. When goods and services are purchased from businesses having no delivery service, the full tax levy is paid by the Status Indian consumer.

Education: Each Band receives a limited budget to annually fund a fixed number of students in institutions of higher learning. This service is an attempt by the federal government to rectify the damage caused by its past racist practices that had the effect of preventing Status Indians from being educated.

Housing: Each Band receives a fixed yearly budget to provide subsidies of approximately $25,000. per unit to construct homes for its members. The individual or Band must borrow the rest to complete the home. Atlantic First Nations are tens of millions in debt because of borrowing to provide modern housing for residents. The waiting list is endless.

Health: Health service is the only benefit that is mandatory under law and is available to all Status Indians. Culture: The Department of culture provides grants to different cultural groups across Canada, not only to First Nations. Employment: Employment programs are generally the same as those enjoyed by all Canadians. Welfare: Welfare programs generally operate under the provincial regulations of the province where the First Nation is located. Factually, most entitlement benefits received by reserve residents are not special but are the same as those available to all Canadians.

Outside of the above-mentioned major shortcomings and some minor reservations that I hold in regards to his articulation of the cause and effect of First Nation discontent, Coates's effort is mostly accurate and very informative. It provides a fairly good overview of the problems faced by Mi'kmaqs and Maliseet in their continuing struggle for survival in what is still at times a very hostile and uncaring social environment. However, because of the harm the listed omissions may cause, I cannot in good conscience recommend the book as presented.

Daniel N. Paul


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