The Marshall Decision and Native Rights. (Reviews/Comptes Rendus).

Ken Coates, The Marshall Decision and Native Rights (Montreal and Kingston: McGill-Queen's University Press, 2000)

IN THE PAST SEVERAL YEARS the Mi'kmaq and Maliseet peoples of the Atlantic region have engaged in some of the most high profile legal and political battles in Canada concerning Native rights. In The Marshall Decision and Native Rights Ken Coates combines a history of Native -- non-Native relations in the Atlantic region with both an analysis of the impact of recent court decisions and suggestions for ameliorating the tensions surrounding the division of rights to forest, fish, and game resources. While the historical component of the book is incomplete, the analysis of recent events and public policy recommendations is worthy of serious consideration.

The first three chapters of The Marshall Decision provide the historical context for understanding the central issues surrounding Native rights in the region from the pre-contact period to the Marshall decision. Chapter Four is a brief outline of the major federal court decisions involving Native peoples and land resource issues in Canada. In Chapters Five, Six, and Seven, the meat of the book, Coates examines in detail the logging dispute in New Brunswick that emanated from the Peter Paul case; the confrontations in the fishery that followed in the wake of the Marshall decision; and subsequent legal and political developments up to the summer of 2000. The final chapter, "What Does it Mean?", is an attempt to unravel the meaning of the recent events and to suggest strategies for compromise and reconciliation.

As a work of history The Marshall Decision and Native Rights is inadequate. This may be due to the fact that the primary objective of the work is to educate the informed public about the details and the significance of recent developments in the Atlantic region. It would also appear that The Mars hall Decision was written to a tight deadline, making extensive primary research difficult. The extraordinary number of misspellings, typographical errors, and grammatical curiosities further suggest that there was a premium on timely publication. However, Coates misses even some of the more visible secondary works on the history of First Nations in the region, which might have strengthened and even altered his understanding of the historical context to the Peter Paul and Marshall cases.

Most importantly, there is very little in this book in the way of historical context concerning the central issue of the Native struggles to defend their rights to the forest, fish, and game resources of the region. From the very beginning of modern federal and provincial fish and game administration in the late 19th century, Native peoples in Atlantic Canada both asserted their treaty rights and resisted new resource management regimes that favoured recreational over subsistence and commercial hunting and fishing. This resistance was a constant feature of federal and provincial fish and game administration into the post World War II era, when the First Nations of Atlantic Canada began to mount legal challenges. The first of these post-war challenges came in the late l950s after a period of considerable tension and violent incidents between federal fisheries officers and residents of the Big Cove Reserve. In the well known Willie John Simon case (1958), the defendant, a constable on the reserve, was arrested for illegally setting nets for salmon. Simon defended himself on the basis of his treaty rights, a position which he openly conveyed to federal officials on several occasions. The Simon case was followed by as many as two dozen other fish and game cases involving the assertion of treaty rights in New Brunswick and Nova Scotia in subsequent decades. The region was also not without its high-profile confrontations. The most notable was the 1978 "raid" on the Kingsclear Reserve by a SWAT team and approximately 90 officers from the federal Department of Fisheries and Oceans, New Brunswick Department of Natural Resources, and the RCMP. After two hours of rioting, the officers left with several salmon nets.

Coates missed an opportunity when he neglected to explore the long-term continuity in the both the treaty arguments made by the region's First Nations and the low-level tension between Native peoples and fish and game administrators. He recognizes that the Atlantic region is "generally known for the absence of conflict of First Nations issues," (9) but, aside from pointing out that Native people have been unhappy for a long time, he does not really make an effort to debunk this myth. It is an important myth, because it contributes significantly to the prevailing notion that Aboriginal rights in the region is an industry, not a social movement. There is a public perception that the Peter Paul and Marshall cases emerged out of thin air and were a product of clever lawyers whispering in the ears of First Nations leaders. These treaties were not "discovered" in recent years, and the First Nations of the region are not responding to an opportunity presented to them from people outside of their own communities. St ressing these two points as forcefully as possible should be the starting point for any examination of recent events.

Nevertheless, The Marshall Decision and Native Rights is a valuable contribution to the literature on First Nations issues in the Atlantic region and the nation. Coates has achieved his primary goal of providing a comprehensive and coherent overview of the legal, political, and social implications of the recent court decisions at the time when fuller public understanding is of vital importance. Moreover, the Peter Paul and Marshall decisions are nicely cast in the broader context of the First Nations successes and defeats in federal court over the past century. To his credit, Coates openly discusses his own intellectual biases, which adds weight to the overall attempt to provide a balanced account of these very contentious issues.

The most intriguing and, ultimately, the most valuable part of The Marshall Decision is the final chapter in which Coates suggests avenues for future negotiation and reconciliation. Coates is very persuasive in arguing that relying on legal solutions to what are fundamentally social and political issues is slow and expensive and only heightens the divisions between Native peoples and other Canadians. Supreme Court decisions such as Marshall, Coates argues, have not been a panacea for the difficult economic and social problems faced by First Nations communities, nor have these decisions done much to clearly delineate the parameters of Native rights to land and resources. Indeed, one of the defining characteristics of major federal court decisions has been to create further uncertainties and legal challenges. Coates sees greater possibilities in the efforts that the New Brunswick government has made to accommodate the desire of the First Nations to gain access to Crown forest resources in the wake of the Peter Paul case, and he even sees potential in preparing new treaties in the Atlantic region. The people of Atlantic Canada, particularly those with an ability to influence public policy, would benefit by careful reading of these suggestions.