Interdependence
v. Sovereignty
The government of Canada set up a pilot program to
determine the effects of granting exclusive commercial fishing rights to a
handful of bands on its coast for a period of 24 hours. Several licensed
commercial fishers considered this to be racial discrimination, protested it by
fishing in the exclusive rights zone and ended up convicted for it.
The issue
is whether or not the law that convicted them is in fact discriminatory and
consequently unconstitutional under s. 15 of the Charter; the court reasoned that while the law may be
discriminatory under s. 15(1), the clause in s. 15(2) negates any
discrimination upon the basis of amelioration. While the majority concedes that
the legislation may end up having no actual effect on the bands, it argues that
it is enough to have an intent that is rationally connected. It consequently
sees the idea of providing commercial fishing rights to select bands as a
rational way to attempt to improve economic conditions within those bands and thinks
the law should be upheld by s.15(2) on those grounds.
In
blunt terms, I think the argument is specious; I don’t even think that the
Crown really took it seriously so much as it used it as a cynical ploy to keep
the law in place in the face of a Charter
challenge, so I’m going to put it aside as disingenuous. The dissenting opinion
pointed out that commercial fishing is already common by band members in these
areas, that band members pay no attention to resource management laws, that
individuals that receive the licenses are under no obligation to share profits
with the bands themselves and that 24-hour exclusive catches are simply going
to move fish caught from one commercial fisher to another based on
characteristics of race. An informed analysis that takes all of the actual
facts into consideration quickly denies any rational connection between policy
and expected effect. I would have used s. 1 to argue that the goal of reducing
poaching and more effectively enforcing resource global management is a pressing
and substantial objective (relative to declining salmon stocks) that falls to
the authority of the local government, as I think that is the real issue here
and that it would have set a very useful precedent, but I recognize that this
is probably a very novel use of the concept of “democratic” that incorporates
very left-wing concepts of democracy and shared ownership of resources that are
rather foreign to Canada’s history of liberalism and, on the surface, is sort
of problematic to its history of colonialism. My lawyering skills are clearly
not nearly as pragmatic as the Crown’s. However, I would then deny that there’s
a rational connection between the legislation and that end and send the
government back to the drawing board for ways to decrease salmon poaching
amongst the bands on the coast that would not discriminate against others and
might actually work. Yet, how did we get to the point where salmon poaching is
a serious problem?
My
understanding is that the various numbered treaties that were signed in these
areas allowed for commercial hunting and fishing rights but that these were
extinguished by a number of transfer agreements put in force by the four
westernmost provincial governments as housecleaning to the process of them
joining confederation. While the primary concern of the various nations that
signed the various treaties was always maintaining hunting rights for the
purposes of subsistence, and any interpretation of the treaties must uphold
these subsistence rights absolutely, these initial treaties were largely signed
in an era where the management of resources was a less pressing or overlooked
concern. Today, we understand that it is possible to overhunt and overfish with
disastrous consequences and that it is imperative that we have some level of
government regulating this behaviour, lest we wake up
one day to find out that we have no more fish left to catch. Unfortunately,
however, the transfer agreements were legislated into existence without any
kind of consultation with any of these nations. From an aboriginal perspective,
then, it is reasonable to deny the force of the legislation and view this
restriction on commercial hunting and fishing as lacking in democratic legitimacy.
The restrictions are consequently simply not acknowledged; hence, we have a
poaching problem.
Regardless
of the motives underlying the initial legislation, and
they may have been less than just, this is currently an attitude that is really
unsustainable in the face of legitimate resource issues. This is a nose being
disfigured to spite a face, while the head is tilting out towards a windmill;
idioms aside, it is simply not sustainable behaviour.
Let us forget the history for a moment and just deal with the present. Consider
the following thought experiment: suppose we could snap our fingers and
instantly create aboriginal self-governance. Would it not enact resource management
laws to attempt to prevent overfishing? On what basis other than the same
science used to enact the federal ones? So, what logic is there in ignoring the
laws on the basis of sovereignty when the enacted legislation will inevitably
be virtually identical? In the circumstance of resource management, focusing on
the sovereign rights of nations to manage things independently at a local level
has the potential to be rather myopic; however, this also applies to
nation-states, which should be working together to regulate these resources at
a global level, through bodies such as the United Nations and with the aid of
peer-reviewed science. Fisheries management is a global responsibility that
must be based on that science, not a cultural issue that can be reduced to a
set of religious beliefs or ancient customs. So, I think the focus here on
sovereignty is really quite backwards; the more pressing concern is global interdependence.
I’m
consequently not seeing any valid reason why aboriginals should expect to be exempt
from this scientific resource management regime. So much as this is an issue of
extinguished treaty rights or ameliorative activism, these issues are all
secondary to the collective need to regulate resources through objective
science. Any self-governing aboriginal state would have to accept this truth;
precisely who hands out the licenses seems rather meaningless. Nor do I see any
need or justification for special commercial licenses for one race or another.
Trying to causally tie these things together outside of the scope of a regular
old commercial fishing license just needlessly overcomplicates – but it’s
necessary to get everybody on the same side, everybody seeing things clearly
and everybody acting responsibly before issuing equal licenses and expecting
people to respect them becomes a workable approach.
I simply
fail to see any causal relationship leading from allowing a 24-hour exclusive catch
from time to time to a change in mindset and behaviour.
All I can see coming from that is a one-day monopolization of the catch, and a subsequent
transfer of wealth from one group of commercial fishers to another. Surely, if
we are to be transferring wealth then we can come up with more appropriate
targets? I’d modify the law to make it
constitutional, and maybe suggest that if they want to distribute fishing
licenses through bands that they do it in a more formal fashion. I’d also
suggest consulting with these nations in writing up some new laws, which would
give the law the legitimacy it requires to be followed. This would ideally be
accompanied by an outreach campaign that explains the importance of resource management
and why overfishing has the potential to be catastrophic.
The
thing I’m concerned about here is not sovereignty but the possibility of over-fishing
to extinction, and I think that neither regulating hunting nor sales will lead
to precisely this; that sounds like a recipe for disaster of peculiarly western
proportions, one we’ve already seen too many times. If the result of sticking
it to the man in Ottawa is the extinction of salmon, that would be a pyrrhic
victory for aboriginal rights, indeed. They should be able to hunt for personal
use as they please but be restricted in their commercial hunting by the same
resource management laws as everybody else – which would certainly be the
resource laws in place if they had self-government, anyways, because they would
be regulated by the same science. The law might attempt to get to that goal,
but is too poorly written and thought out to actually get there. In actuality,
it merely discriminates in redistributing wealth from the poor to the poor on
base racial terms and consequently needs to be drastically rethought.
LAWS 3504
oct, 2012
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/intersov.html