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A different current : alternative theoretical propositions to guide aboriginal fisheries policy-making… Hanvelt, Marc 2000

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A Different Current: Alternative Theoretical Propositions to Guide Aboriginal Fisheries Policy-Making in British Columbia byMarc Hanvelt B.A., The University of British Columbia, 1998 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF Master of Arts in The Faculty of Graduate Studies (Department of Political Science) We accept this thesis as conforming tojhe.required standard  The University of British Columbia March 2000 ® Marc Hanvelt, 2000  In presenting  this  degree at the  thesis  in  partial fulfilment  of  University of  British Columbia,  I agree  freely available for reference copying  of  department publication  this or of  and study.  this  his  or  her  representatives.  Department of  ITJCAL  S O  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  WtecA 2tf  coo  (^>CC  that the  may be It  thesis for financial gain shall not  permission.  requirements  I further agree  thesis for scholarly purposes by  the  is  an  advanced  Library shall make it  that permission for extensive granted by the understood  be  for  allowed  that without  head  of  my  copying  or  my written  11  Abstract Liberal individualism and group-differentiated rights are not incompatible with one another, as has often been suggested in Canadian political discourse. In order to make self-defining choices, and to be the autonomous free-choosing individuals that are central to liberal theory, individuals require a range of options from which to choose and a means of differentiating between those options. An individual's culture provides him or her with both of these necessary elements of autonomous free choice. But while Canadians share a common culture by virtue of their membership in a Canadian moral community, there is no single Canadian identity. Some Canadians, such as aboriginal peoples, are Canadian through being members of minority national groups which have distinct cultures of their own. In order to ensure that liberal equality is extended to all citizens of Canada, the complexity of Canadian identities must be reflected in government policy-making. In this thesis, I develop a set of theoretical propositions about group-differentiated rights in Canada, and apply them to aboriginal fisheries policy-making in British Columbia. I propose a policy that reflects those theoretical propositions and compare it with the federal government's Aboriginal Fisheries Strategy (AFS). Fishing rights are the only aboriginal rights to have run the full gamut from being traditional aboriginal practices, to being defined as aboriginal rights by the Supreme Court of Canada, to being recognized through government policy. The aboriginal fisheries policy that I propose in this thesis would be more extensive than was the AFS. The proposed policy would maintain the AFS' structure of individual fisheries agreements negotiated between aboriginal nations and the Department of Fisheries and Oceans. But the proposed policy would also include provisions for significant aboriginal management of their local fisheries, as well as for aboriginal involvement in the development of a provincewide fisheries management regime.  Table of Contents Abstract  ii  Acknowledgements  iV  Introduction  1  Chapter 1  Theoretical Propositions A b o u t G r o u p Differentiated Rights i n C a n a d a 1.1 T h e Politics of E q u a l Dignity vs. T h e Politics of Difference 1.2 Kymlicka's Liberal T h e o r y of G r o u p Differentiated Rights 1.3 Defining a Nation 1.4 Deep Diversity 1.5 Group-Differentiated Rights 1.6 Theoretical Propositions for C a n a d a  6 9 16 19 21  Chapter 2  A n Alternative A b o r i g i n a l Fisheries policy  .24  Chapter 3  Major S u p r e m e C o u r t of C a n a d a D e c i s i o n s o n A b o r i g i n a l F i s h i n g Rights 3.1 T h e C o n s t i t u t i o n a l protection of A b o r i g i n a l Rights 3.2 R. v. Sparrow 3.3 A n A b o r i g i n a l Right to F i s h Commercially? 3.4 R. v. VanderPeet 3.5 Smokehouse and Gladstone 3.6 Inconsistencies i n the C o u r t ' s Decisions 3.7 Conclusion  Chapter 4  T h e A b o r i g i n a l Fisheries Strategy  3 3  33 33 34 38 40 44 47 57 60  Conclusion  78  Bibliography  80  Acknowledgements I w o u l d like to t h a n k P a u l K a r i y a a n d R o x a n n a Laviolette for t a k i n g the time to meet with me, a n d for their invaluable contributions to m y u n d e r s t a n d i n g of the Aboriginal Fisheries Strategy. I w o u l d also like to t h a n k Steven E m e r y for his help i n editing the thesis, a n d for h i s insightful critiques of m y ideas. Finally, a n d most especially, I w o u l d like to t h a n k P a u l T e n n a n t for his guidance, a n d for all of the w i s d o m that he h a s s h a r e d with me over the years. I feel very privileged to have h a d this opportunity to w o r k so closely with h i m .  1  Introduction  A s i n m a n y other liberal democracies, a conflict exists i n C a n a d a between the focus o n the i n d i v i d u a l that is central to liberalism, a n d the existence of minority groups that assert c l a i m s to group-differentiated rights. In C a n a d a , this conflict h a s been particularly apparent i n the politics of aboriginal rights. Aboriginal a n d treaty rights are protected by section 35 of the Constitution  Act 1982; however these rights are not  defined i n the constitution. T h e task of defining aboriginal rights h a s been left to the legislators a n d to the courts. T o date, fishing rights are the most important aboriginal rights to have r u n the full g a m u t from being traditional aboriginal practices, to being defined as c o m m u n a l l y - h e l d aboriginal rights by the courts, to having the C a n a d i a n government implement a policy, the Aboriginal Fisheries Strategy (AFS), that recognizes those rights. T h e discourse that pits liberal i n d i v i d u a l i s m against group-differentiated rights h a s become terminally circular. B u t I believe that the focus on this conflict is m i s p l a c e d . B y shifting the focus from rights to identity, I will develop a set of theoretical propositions o n the place of group-differentiated rights i n C a n a d a that m a i n t a i n the focus o n the i n d i v i d u a l that is central to the liberal theory that u n d e r p i n s C a n a d i a n society. I believe that these theoretical propositions c o u l d guide aboriginal fisheries p o l i c y - m a k i n g i n C a n a d a . In this thesis, I will c o m p a r e a n aboriginal fisheries policy based on these theoretical propositions with the A b o r i g i n a l Fisheries Strategy that the federal government implemented i n 1992. Most liberal democratic states, C a n a d a being a prime example, c o n t a i n very complex a n d heterogeneous societies. While m e m b e r s of these societies share m a n y commonalities, they also differ i n m a n y respects. T h e complex nature of i n d i v i d u a l a n d group identities w i t h i n liberal democratic societies is inconsistent with the t r a d i t i o n a l liberal notion that all citizens of those states s h o u l d be treated i n exactly the same way a n d endowed with exactly the same set of rights a n d  2 i m m u n i t i e s . In fact, a willingness on the part of the state to entertain the notion of group-differentiated rights for some minority g r o u p s is a necessary precondition for a liberal democratic society that w i s h e s to ensure s i m i l a r degrees of a u t o n o m y for a l l of its citizens. In order to break free of the c i r c u l a r d i s c u s s i o n i n w h i c h i n d i v i d u a l rights are pitted against group rights, it is necessary to move the d i s c u s s i o n b e y o n d the concept of rights. Avigail E i s e n b e r g writes that the g r o u p v e r s u s i n d i v i d u a l rights dichotomy "misrepresents the n a t u r e of conflicts between i n d i v i d u a l s a n d groups by conflating identity-related c l a i m s with other types of claims." She suggests that rather t h a n 1  continue a discourse of "competing a n d i n c o m m e n s u r a b l e values," it w o u l d be far more productive to seek "a m e a n s of u n d e r s t a n d i n g how v a r i o u s devices, i n c l u d i n g i n d i v i d u a l a n d group rights, m a y be employed i n a n attempt to preserve distinctive  identities."  2  In the first chapter of this thesis, I will develop a set of theoretical propositions o n group-differentiated rights that are b a s e d o n a complex u n d e r s t a n d i n g of i n d i v i d u a l a n d group identities i n C a n a d a . In chapter 2, I will propose a n aboriginal fisheries policy, b a s e d on those theoretical propositions, that c o u l d be implemented i n B r i t i s h C o l u m b i a . A l t h o u g h fisheries fall w i t h i n the j u r i s d i c t i o n of the federal government,  fisheries  policies m u s t be targeted at specific areas of the country. T h e fisheries policy that I will develop i n chapter two will be specifically for B r i t i s h C o l u m b i a . In chapter three, I will review the major S u p r e m e C o u r t of C a n a d a decisions o n aboriginal fishing rights i n order to paint a picture of the legal doctrine of aboriginal rights as it c u r r e n t l y exists i n C a n a d a . I will also determine the legality of the aboriginal fisheries policy that I will propose i n chapter two. In the final chapter, I will compare that policy with the federal government's A b o r i g i n a l Fisheries Strategy.  1  2  Eisenberg, Avigail. "The Politics of Individual and Group Difference in Canadian Jurisprudence." in Canadian Journal of Political Science, (March 1994 Vol.27 No.1). PP.3-21. p.4. Ibid. p.20.  3  Chapter 1: Theoretical Propositions About Group Differentiated Rights in Canada Unfortunately for liberal theorists, the p o p u l a t i o n s of most m o d e r n liberal democratic states are a n y t h i n g b u t homogeneous. T h e challenge of reconciling the d e m a n d s of minority groups with the traditional liberal focus o n the universality of i n d i v i d u a l rights has, therefore, proved to be a bit of a puzzle for m a n y liberals. Some believe that s u c h a reconciliation is impossible w i t h i n a liberal p a r a d i g m . O f course, l i b e r a l i s m is not a single unified theory. T h e r e is a wide s p e c t r u m of theorists who c o u l d all be called liberal, b u t who most certainly w o u l d disagree vehemently with e a c h other o n m a n y issues. B u t there are nonetheless several features that are c o m m o n to all of the liberal theories. T h e most prevalent of these is the focus on the rational, a u t o n o m o u s i n d i v i d u a l as the basic u n i t of society. D r a w i n g o n the work of Will K y m l i c k a a n d C h a r l e s Taylor, I will devote this first chapter to the development of a set of theoretical propositions about group-differentiated rights i n C a n a d a that m a i n t a i n s the traditional liberal focus on the i n d i v i d u a l . T h e Politics of E q u a l Dignity vs. T h e Politics of Difference Liberal societies place a very high value on i n d i v i d u a l a u t o n o m y because the successes a n d a c c o m p l i s h m e n t s of a n i n d i v i d u a l c a n have spill-over effects that benefit other m e m b e r s of their society, a n d possibly even the society as a whole. So the liberal society h a s a n interest i n seeing e a c h of its m e m b e r s achieve their m a x i m u m potential. B u t the society also h a s the ability to limit a n individual's capacity to r e a c h h i s or her m a x i m u m potential because the society controls the degree to w h i c h rights are protected a n d the environment i n w h i c h they m a y be exercised. W h a t results is a c i r c u l a r relationship i n w h i c h the growth a n d development of the society is partially dependent on the individual's ability to r e a c h his or her own m a x i m u m potential, a n d the individual's capacity to do so is, at least partially dependent on the society. Liberal societies have traditionally functioned on the a s s u m p t i o n that the atmosphere most conducive to i n d i v i d u a l s reaching their m a x i m u m  4 potential is one characterized by extensive i n d i v i d u a l rights. C h a r l e s T a y l o r disputes this a s s u m p t i o n . T h e root of the disagreement lies i n how the potential of a n i n d i v i d u a l is defined. F o r T a y l o r , the m a x i m u m potential of a n i n d i v i d u a l is closely tied to the individual's identity. "Who a m I?" he asks. T a y l o r argues that "what is peculiar to a h u m a n subject is the ability to a s k a n d answer  questions  about what really matters, what is of the highest value, what is truly significant, what is most moving, most beautiful, a n d so on." He argues that "outside the horizon provided by some master value or some allegiance or some c o m m u n i t y m e m b e r s h i p , [he] w o u l d be c r u c i a l l y crippled, w o u l d become u n a b l e to a s k a n d answer these questions effectively, a n d w o u l d t h u s be u n a b l e to function as a fully h u m a n subject." T a y l o r defines identity as 1  "the b a c k g r o u n d against w h i c h o u r  tastes a n d desires a n d opinions a n d aspirations m a k e sense." He argues 2  that h u m a n beings are n a t u r a l l y dialogical. So while i n d i v i d u a l s do define their own identities for themselves, the recognition that they receive t h r o u g h the relationships w h i c h they form i n life also plays a n i m p o r t a n t role i n the formation of their identities. T a y l o r notes that in h i e r a r c h i c a l societies recognition was built into the social structure. A n individual's place i n society was the b a s i s for the recognition of his or her honor. T h e collapse of h i e r a r c h i c a l societies led i n d i v i d u a l s to seek a new basis for securing recognition. O n e s u c h b a s i s for recognition is what Taylor refers to as "equal dignity."  3  T h e politics of  equal dignity h a s been e m b r a c e d by m a n y liberal theorists who argue that all i n d i v i d u a l s i n a liberal democracy s h o u l d be entitled to the same rights a n d i m m u n i t i e s o n the basis of having equal dignity. B u t as T a y l o r argues, the politics of equal dignity contains within it a fatal flaw. It "negates identity by forcing people into a homogeneous m o l d that is u n t r u e to them." T h e d i s a b l i n g effects of this negation of identity are c o m p o u n d e d by the fact that generally, "the supposedly n e u t r a l set of difference-blind Taylor, Charles. "Why do Nations Have to Become States?" in Reconciling the Solitudes: Essays on Canadian Federalism. Montreal: McGill- Queen's University Press, 1994. PP.40-58. p.45. Taylor, Charles. The Malaise of Modernity. Concord, Ontario: Anansi, 1991. p.34. Taylor, Charles. 'The Politics of Recognition" in Multiculturalism Ed. Amy Gutman. Princeton: Princeton University Press, 1994. PP.25-73. p.42. 1  2 3  5 principles of the politics of equal dignity is in fact a reflection of one hegemonic culture." Taylor argues that the politics of equal dignity is, in fact, not equal at all as "only the minority or suppressed cultures are being forced to take alien form." Far from representing a "fair and difference-blind society," the politics of equal dignity is in fact "not only inhuman (because suppressing identities) but also in a subtle and unconscious way, itself highly discriminatory."  4  Anne Phillips has also written a scathing indictment of the politics of equal dignity. She argues that the problem with this model of democracy is that it treats us as "abstract individuals or citizens, regardless of our sex, race or class." She suggests that, once forced into this abstract mold, "we are allowed to voice, but are not encouraged to press, our own specific concerns. Fairness is then conceived as a matter of putting oneself in the other person's shoes." This model of fairness places no serious hardship on those in "comfortable positions of power." But "the same injunction can be totally disabling for those less fortunately placed." Phillips argues that "when an oppressed group is called upon to put its own partial needs aside, it is being asked to legitimate its own oppression."  5  The politics of equal dignity rest on two principles: individual rights and universality. For those who subscribe to the politics of equal dignity, the whole notion of group-differentiated rights is very troublesome. As Taylor argues, "a political society's espousing certain collective goals threatens to run against both of these basic provisions...First, the collective goals may require restrictions on the behavior of individuals that may violate their rights... second... it will always be the case that not all those living as citizens under a certain jurisdiction will belong to the national group thus favored." Taylor argues for an alternative to the 6  politics of equal dignity as a means of securing recognition for individuals. He calls the alternative the politics of difference. 4 5  6  Taylor, 'The Politics of Recognition." p.43. Phillips, Anne. "Democracy and Difference." in Kymlicka, Will. Ed. The Rights of Minority Cultures. New York: Oxford UP, 1996. PP.288-99. p.291. Taylor, 'The Politics of Recognition." p.55.  6 T a y l o r argues that all h u m a n s share a potential "for forming a n d defining [their] own identity, as a n i n d i v i d u a l a n d as a culture." He suggests that i n lieu of recognizing a n identical set of i n d i v i d u a l rights a n d i m m u n i t i e s for every citizen, as is central to the politics of e q u a l dignity, liberal societies s h o u l d adopt the politics of difference w h i c h i n c l u d e s a recognition of the u n i q u e identity of every i n d i v i d u a l , "their distinctness from everyone else." T a y l o r argues that the politics of difference rejects the assimilation of distinct identities into a d o m i n a n t or majority identity. T h i s assimilation is inextricably l i n k e d to the politics of equal dignity, a n d i n Taylor's o p i n i o n , is "the c a r d i n a l sin against the idea of authenticity."  7  Kymlicka's Liberal Theory of Group-Differentiated Rights W i l l K y m l i c k a presents one m e a n s by w h i c h a n i n d i v i d u a l c a n maximize h i s or her potential to define a n d formulate his or her own identity. Multicultural  Citizenship  is Kymlicka's attempt to dispel the  c o m m o n l y held belief that group-differentiated rights are incompatible with l i b e r a l i s m . He argues that this belief is not reflective of true liberalism, b u t of a m i s u n d e r s t a n d i n g of minority rights that h a s entered into the p o p u l a r discourse since the S e c o n d W o r l d W a r . K y m l i c k a proposes a n u n d e r s t a n d i n g of the basic tenets of l i b e r a l i s m that is not only compatible with some forms of group-differentiated rights, b u t i n fact in m a n y i n s t a n c e s requires t h e m . He argues that one of the f u n d a m e n t a l values of l i b e r a l i s m is i n d i v i d u a l a u t o n o m y , specifically i n d i v i d u a l choice. B u t because i n d i v i d u a l s are incapable of a u t o n o m o u s free-choice i n a m o r a l v a c u u m , K y m l i c k a argues that they require a "context of choice." T h e r e are two i m p o r t a n t aspects of a n individual's process of choice. T h e first is the range of options from w h i c h he or she m a k e s that choice. K y m l i c k a argues that "the range of options is determined by o u r culture." T h e second aspect of the individual's process of choice is the factors w h i c h lead the i n d i v i d u a l to m a k e that particular choice. In K y m l i c k a ' s a r g u m e n t "[t]he process by w h i c h options a n d choices become significant for u s are 7  Taylor, 'The Politics of Recognition." p.38.  7 linguistic a n d historical processes."  8  He argues that i n order to m a k e self-  defining choices, i n d i v i d u a l s m u s t be allowed "to intelligently decide for [themselves] what is valuable i n life," a decision that always involves "selecting what [they] believe to be most valuable from the v a r i o u s options available, selecting from a context of choice w h i c h presents [them] with different ways of life."  9  T h e a r g u m e n t that choices are made clear to i n d i v i d u a l s t h r o u g h history a n d language fits with a concept developed by T a y l o r that he calls a h o r i z o n of significance. A horizon of significance is a "background of intelligibility"  10  against w h i c h i n d i v i d u a l decisions are m a d e a n d c a n be  u n d e r s t o o d . T a y l o r argues that individuals have several horizons of significance w h i c h , together, form this b a c k g r o u n d of intelligibility. T h e more e x p a n d e d are the horizons of significance of a n i n d i v i d u a l , the greater will be the scope of the individual's process of choice. Likewise, if a n i n d i v i d u a l h a s a very collapsed set of horizons of significance, t h e n he or she will m a k e decisions that are very limited i n scope. T h e r e are m a n y different sources of horizons of significance, possibly the most significant t h o u g h , is culture. So not only does a n individual's c u l t u r e present h i m or her with a context of choice, as K y m l i c k a argues, b u t it also forms a horizon of significance against w h i c h the individual's choices take o n meaning. A s Betty B a s t i e n writes of A b o r i g i n a l people, "one's sense of tribal identity allows for a perception of reality; a n d a strong sense of tribal identity brings alive, with vitality a n d i n s p i r a t i o n , the expectations, desires, a n d p u r p o s e of life for Indian people."  11  T h e r e are n u m e r o u s sources of c u l t u r e i n liberal democratic states. F o r m e m b e r s of minority groups, their own group's c u l t u r e is one of the most important. O n e of the most valuable contributions that Multicultural 8 9  Kymlicka, Will. Multicultural Citizenship. New York: Oxford University Press, 1997. p. 189-90. Kymlicka, Will. "Liberalism, Individualism, and Minority Rights" in Law and the Community Eds. Allan Hutchinson and Leslie Green. Toronto: Carswell, 1989. PP. 181-204. p. 189.  10  Taylor, Malaise of Modernity, p.37.  ,1  Bastien, Betty. "Voices Through Time." in Miller, Christine, and Patricia Chuchryk. Eds. Women of the First Nations: Power, Wisdom, and Strength. Winnipeg: University of Manitoba Press,  1997. PP. 127-9. p.128.  8 Citizenship m a k e s to the u n d e r s t a n d i n g of the politics of difference is the delineation that K y m l i c k a draws between "cultural diversity [that] arises from the incorporation of previously self-governing, territorially concentrated c u l t u r e s into a larger state... [and] c u l t u r a l diversity [that] arises from i n d i v i d u a l a n d familial immigration." K y m l i c k a refers to the minority g r o u p s i n the first case a s "national minorities" or "cultures," a n d i n the second case as "ethnic groups."  12  Unfortunately, K y m l i c k a ' s treatment of the two categories is somewhat problematic. O b i o r a C h i n e d u Okafor h a s a r g u e d that "very often in h i s book... the central challenge K y m l i c k a faces is himself. A s a selfconfessed liberal, he is constrained at every t u r n to reconcile h i s s u p p o r t for minority rights with the often rigid doctrinaire i n d i v i d u a l i s m of m a i n s t r e a m liberal minority rights theory."  13  T h e problems for K y m l i c k a ' s  theory arise both from the fact that, a l t h o u g h he denies that h i s categories of g r o u p s are exhaustive, he ignores a l l other categories of g r o u p affiliation, a n d also from h i s unstated a s s u m p t i o n that a l l i n d i v i d u a l s fit into h i s categories of groups. K y m l i c k a ' s theory c a n t h u s be seen a s a theory of u n i v e r s a l differences, a n d therein lies the contradiction. H e acknowledges difference, b u t only i n a way that c a n be applied universally. T h e result is a theory of group rights that is based o n a complex u n d e r s t a n d i n g of identity, but that is artificially limited b y Kymlicka's need to m a k e h i s theory more palatable to liberals w h o s u b s c r i b e to the politics of equal dignity. T h e contradiction i n Kymlicka's theory is obfuscated by h i s failure to differentiate between nations a n d cultures. H e defines the t e r m c u l t u r e "as s y n o n y m o u s with a nation or a people."  14  B u t a l t h o u g h the definitions  of nation a n d culture are hardly generally agreed u p o n , one s h o u l d k n o w intuitively that there is a difference between the two. B y conflating the terms c u l t u r e a n d n a t i o n , K y m l i c k a avoids certain questions with w h i c h h i s theory seems u n a b l e to deal. A c c o r d i n g to h i m , "the Q u e b e c o i s form a 12  Kymlicka, Multicultural Citizenship, p. 10.  13  Okafor, Obiora Chinedu. "Multicultural Citizenship: A Liberal Theory of Minority Rights." Canadian Journal of Law and Society. Vol.11 (2). PP.267-270. p.267.  14  Kymlicka, Multicultural Citizenship, p. 18.  9 separate culture [or nation] w i t h i n C a n a d a . "  15  Newfoundlanders do not.  B u t if one accepts Kymlicka's argument that "individuals are m e m b e r s of societal c u l t u r e s [emphasis added]" , then one is left to a s k what are 15  Newfoundlanders?  A c c o r d i n g to Kymlicka's theory, because  Newfoundlanders do not fit his definition of a n ethnic group, they m u s t belong to a national group. B u t seeing as they do not form their own nation, they m u s t belong to a n entity called the majority c u l t u r a l g r o u p , or as he calls it i n a later book, the majority linguistic c o m m u n i t y .  17  Kymlicka's theory of group rights is predicated on the existence of a majority culture. O n e of his principle a r g u m e n t s is that "minority c u l t u r e s in m u l t i n a t i o n states m a y need protection from the economic or political decisions of the majority culture."  18  B u t if K y m l i c k a is advocating  protecting c u l t u r e s because they provide "contexts of choice," integral elements i n the identity of i n d i v i d u a l s , then it w o u l d seem unrealistic for h i m to a s s u m e that all those individuals who do not fit neatly into his categories of national groups a n d ethnic g r o u p s c a n necessarily be l u m p e d together into a n entity called the majority nation or linguistic c o m m u n i t y , a n d that this entity will form the p r i m a r y constituent element i n those i n d i v i d u a l s ' conception of their own identity. T h e fact that Newfoundlanders do not constitute either a n ethnic group or a minority nation of their own does not i n any way render illegitimate the fact that m a n y of t h e m identify strongly the province of Newfoundland, or justify l u m p i n g all Newfoundlanders into a n entity called the C a n a d i a n majority n a t i o n . It s h o u l d be clear that while Newfoundlanders are without a doubt C a n a d i a n s , they do also have their own u n i q u e culture. T h e example of Newfoundlanders suggests that group identities i n C a n a d a c a n not be simplified quite to the extent that K y m l i c k a w o u l d like to see t h e m .  Defining a Nation T h e r e is a n e n o r m o u s body of literature devoted to the 15  16  17  18  differences  Kymlicka, Multicultural Citizenship, p. 19.  Ibid, p.125. Kymlicka, Will. Finding Our Way: Rethinking Ethnocultural Relations in Canada. Don Mills, Ontario:  Oxford University Press, 1998. p.154. Kymlicka, Multicultural Citizenship, p.126.  10 between nations a n d states, a n d to defining a n a t i o n . So while K y m l i c k a ' s definition of a n ethnic group is sufficient on its own, the body of literature on nations c a n a d d m u c h to his definition of a national minority. T h e definition of a nation m u s t be flexible e n o u g h to capture the significance that nations have for the self-identification of their m e m b e r s . A s T a y l o r argues, n a t i o n a l m e m b e r s h i p significantly affects a n i n d i v i d u a l member's ability to act as a fully h u m a n subject. B u t the definition of a nation m u s t also be s t r u c t u r e d e n o u g h so as to m a k e nations discernible from other types of societal g r o u p s to a n outsider. D a v i d Miller acknowledges the complexity of n a t i o n a l identity, writing that "nations are not things that exist i n the world independently of the beliefs people have about t h e m , i n the way that, say, volcanoes a n d elephants do." Miller argues that the difference lies i n the fact that "once we k n o w the criteria for something's being one, it becomes a fairly simple matter of observation to decide whether a given object is a n elephant or a volcano." Identifying nations is a n all together different type of exercise. "It is not merely that the criteria are more complex; it is also that people's own beliefs about their n a t i o n h o o d enter into the d e f i n i t i o n . T h e Concise  Oxford Dictionary  19  defines a nation as "a c o m m u n i t y of  people of m a i n l y c o m m o n descent, history, etc., forming a State or i n h a b i t i n g a territory." B u t while all of the elements of this definition do 20  reappear often i n v a r i o u s w o r k s on nations a n d n a t i o n a l i s m , the dictionary definition is too c l i n i c a l by itself to capture effectively the essence of a n a t i o n . It does, however, set some of the basic p a r a m e t e r s for s u c h a definition. Nations are c o m m u n i t i e s of people. T h e y are not simply groupings of people. M e m b e r s of nations share c o m m o n histories a n d other commonalities. Nations o c c u p y or are associated with certain territories. T h e y are not widely dispersed. T h e r e is, however, a lot more to n a t i o n s t h a n s i m p l y histories, c o m m u n i t i e s , a n d territories. Nations provide p r i m a r y poles of identification for their m e m b e r s . In h i s f a m o u s essay "Qu'est-ce qu'une nation?", E r n e s t R e n a n attempts to develop a conceptualization of a nation that c a p t u r e s the 19  Miller, David. On Nationality. New York: Oxford UP, 1997. p.17.  20  Concise Oxford Dictionary. Toronto: Clarendon Press, 1991.  11 psychological a n d emotional b o n d s that nations c a n engender i n their m e m b e r s . R e n a n argues that neither race, n o r language, nor religion, n o r c o m m o n interests, n o r even geography c a n provide a sufficient u n d e r s t a n d i n g of a nation. L'homme est tout d a n s l a formation de cette chose sacree qu'on appelle u n peuple. R i e n de materiel n*y suffit. U n e nation est u n p r i n c i p e spirituel, resultant des complications profondes de l l i i s t o i r e , u n e famille spirituelle, n o n u n groupe determine p a r l a configuration d u sol... U n e nation est u n e ame... L'homme n'est esclave n i de s a race, n i de s a langue, n i de s a religion, n i d u c o u r s des fleuves, n i de l a direction des chaines de montagnes. U n e grande agregation d'hommes, saine d'esprit et c h a u d e de coeur, cree u n e conscience morale q u i s'appelle u n e nation. T a n t que cette conscience morale prouve s a force par les sacrifices qu'exige l'abdication de l'individu a u profit d'une c o m m u n a u t e , elle est legitime, elle a le droit d'exister. 21  (Man is everything i n the formation of this sacred t h i n g that we call a people. No material objects are enough. A nation is a spiritual principle, resulting from profound historical complications, a spiritual family, not a group determined by the geography of the l a n d . . . A nation is a spirit... M a n is not a slave to his race, his language, his religion, the course of the rivers, or the placement of the m o u n t a i n ranges. A large aggregation of m e n , s o u n d of m i n d a n d w a r m of heart, create a m o r a l conscience k n o w n as a nation. W h e n this m o r a l conscience proves its strength by the sacrifices that i n d i v i d u a l s m a k e for the benefit of the c o m m u n i t y , it is legitimate. It h a s the right to exist.) 22  Renan's definition of a n a t i o n as a s o u l a n d a spiritual principle is s i m p l y too ethereal to function as the sole definition of the n a t i o n . W h a t c a n be 21  22  Renan, Ernest. "Qu'est-ce qu'une nation?" in Bordas, Pierre, et fils Eds. Qu'est-ce qu'une nation?: Texte integral de E. Renan. Paris: Imprimerie Herissey, 1991. p.41-2. Translation by author.  12 gleaned from his essay t h o u g h , is a sense of the emotional ties that b i n d m e m b e r s of n a t i o n s to one another. A far more concrete conception of the nation t h a n was presented by R e n a n is posited by A n t h o n y D . S m i t h , who argues for a definition of the n a t i o n that h a s seven elements: 1 c u l t u r a l differentiate (ie. the "similaritydissimilarity" pattern, m e m b e r s are alike i n the respects i n w h i c h they differ from non-members) 2 territorial contiguity with free mobility throughout 3 a relatively large scale (and population) 4 external political relations of conflict a n d alliance with similar g r o u p s 5 considerable group sentiment a n d loyalty 6 direct m e m b e r s h i p with equal citizenship rights 7 vertical economic integration a r o u n d a c o m m o n system of l a b o u r . 23  While S m i t h does acknowledge the more emotionally-based characteristics of the nation, s u c h as the issue of group loyalty, he is m u c h more concerned with criteria that w o u l d allow for the e m p i r i c a l classification of nations. It s h o u l d also be clear that S m i t h is not writing specifically about minority n a t i o n a l groups. In Smith's theory, there is very little difference between a nation a n d a nation-state. In fact, a c c o r d i n g to h i m , all that is required for a nation to become a nation-state is "de facto territorial sovereignty."  24  Smith's category of "ethnie," w h i c h  are g r o u p s that exhibit all of the elements listed above except n u m b e r s 6 a n d 7 , is p e r h a p s more appropriate for describing minority nations. It is not at all clear that a group m u s t have equal citizenship rights a n d a c o m m o n system of l a b o u r in order to qualify as a nation. In fact, insisting on s u c h requirements w o u l d virtually preclude all g r o u p s other t h a n nation-states from qualifying as nations. D a v i d Miller's definition of a nation is very similar to Kymlicka's. K y m l i c k a defines a nation as "an intergenerational c o m m u n i t y , more or less institutionally complete, o c c u p y i n g a given territory or h o m e l a n d , 23 24  Smith, Anthony D. Theories of Nationalism. Ibid, p.189.  London: Duckworth, 1983. p.186.  13 sharing a distinct language and history." He also writes that a national culture "provides its members with meaningful ways of life across the full range of human activities, including social, educational, recreational, and economic life, encompassing both public and private spheres." For Miller, a nation is "a community (1) constituted by shared belief and mutual commitment, (2) extended in history, (3) active in character, (4) connected to a particular territory, and (5) marked off from other communities by its distinct public culture." On a continuum of definitions of the nation which encompasses on the one end, purely psychologically and emotionally-based definitions, and on the other end, strictly empirically testable definitions, Kymlicka and Miller's definitions of the nation would fall in between those of Renan and Smith. 25  26  27  A final definition of the nation is supplied by Avishai Margalit and Joseph Raz, who suggest a six-part definition: 1. The group has a common character and a common culture that encompasses many, varied and important aspects of life, a culture that defines or marks a variety of forms or styles of life, types of activities, occupations pursuits, and relationships... 2. The correlative of the first feature is that people growing up among members of the group will acquire the group culture, will be marked by its character... They need not be indelibly marked. People may migrate to other environments, shed their previous culture, and acquire a new one. It is a painful and slow process, success in which is rarely complete... 3. Membership in the group is, in part, a matter of mutual recognition. Typically, one belongs to such groups if, among other conditions, one is recognized by other members of the group as belonging to it... 4. ...These are groups, members of which are aware of their membership and typically regard it as an important clue in understanding who they are, in interpreting their actions and 25  26  27  Kymlicka, Multicultural Citizenship, p.18. Ibid. p.76. Miller, On Nationality, p.27.  14 reactions, i n u n d e r s t a n d i n g their tastes a n d their m a n n e r . 5 . M e m b e r s h i p is a matter of belonging, not of achievement... 6 . ... T h e y are a n o n y m o u s groups where m u t u a l recognition is s e c u r e d by the p o s s e s s i o n of general characteristics.. , 2 8  E a c h of the six definitions of the n a t i o n , those of R e n a n , S m i t h , K y m l i c k a , Miller, a n d Margalit a n d Raz, identifies i m p o r t a n t aspects of the n a t i o n . B u t none of t h e m sufficiently meets both criteria that I established for a n adequate definition of a n a t i o n , namely, c a p t u r i n g the significance that n a t i o n s have for the self-definition of their m e m b e r s , while at the same time m a k i n g n a t i o n s discernible from other societal g r o u p s to a n outsider. M y definition of the n a t i o n incorporates elements from e a c h of the six definitions. It h a s three c o m p o n e n t s : elements of the n a t i o n that contribute to the i n d i v i d u a l identity of its m e m b e r s , elements of the n a t i o n that allow for external recognition, a n d characteristics of m e m b e r s h i p i n nations. Nations provide their m e m b e r s with a context of choice, or i n the words of T a y l o r , horizons of significance, that allow those i n d i v i d u a l s to m a k e self-defining choices; however, the question of who defines the n a t i o n is also very significant. T h e nation contributes to the selfdefinition of its m e m b e r s , but they in t u r n contribute to the definition of the nation. W a l k e r C o n n o r argues that "an ethnic group m a y be readily d i s c e r n e d by a n anthropologist or other outside observer, b u t u n t i l the m e m b e r s are themselves aware of the group's u n i q u e n e s s , it is merely a n ethnic group a n d not a nation." T h e important implication of this observation is that while "an ethnic group may, defined, the n a t i o n must be  self-defined.  therefore, be other-  29  Individuals c a n contribute to the self-definition of their n a t i o n i n b o t h the p u b l i c a n d the private sphere. A s D a v i d Miller's asserts, n a t i o n s Margalit, Avishai, and Joseph Raz. "National Self-Determination." in Kymlicka, Will. Ed. The Rights of Minority Cultures. Toronto: Oxford University Press, 1996. PP.79-92. p.82-85. Connor, Walker. "A Nation is a Nation, is a State, is an Ethnic Group, is a ..." in Hutchinson, John, and Anthony D. Smith. Eds. Nationalism. Toronto: Oxford University Press, 1994. PP.36-46. p.45-6. 28  28  15 are active i n character. A s E r n e s t R e n a n writes, T e x i s t e n c e d'une n a t i o n est... u n plebiscite de tous les j o u r s " plebiscite).  31  30  (A nation is a n every d a y  W h a t is meant here is that m e m b e r s of a n a t i o n actively  participate i n social, political, economic, leisure, or other types of activities, p u b l i c i n n a t u r e , that contribute to the distinctive c h a r a c t e r of their n a t i o n . T h e y also participate i n the self-definition of their n a t i o n i n the private sphere. O n e feature of n a t i o n s that seems to have been overlooked by m a n y theorists is the role that families play, both as a source of horizons of significance for the m e m b e r s of the n a t i o n , a n d as a f o r u m i n w h i c h the i n d i v i d u a l c a n contribute to the development of the nation's distinctive identity. It is t h r o u g h family relationships that m a n y i m p o r t a n t features of the n a t i o n , s u c h as its language, history, a n d values c a n be p a s s e d on to successive generations. Inevitably, these features of the n a t i o n will evolve as those p a s s i n g t h e m on give their own i n d i v i d u a l interpretations of t h e m . T h e family c a n , therefore, be thought of as a n i m p o r t a n t crucible for the development of the nation's identity. F a m i l y ties are also a n important part of the second c o m p o n e n t of m y definition of the nation: the elements of the n a t i o n that allow n o n m e m b e r s to differentiate the nation from other societal groups. Nations are intergenerational groups. T h e y are extended i n history, a n d concentrated i n specific territories. T h e fact that nations are concentrated in specific territories contributes to their developing distinctive c u l t u r e s a n d languages, important elements of the nation i n terms of its external recognition. A n a t i o n a l culture m u s t be pervasive. It m u s t affect most aspects of the lives of the n a t i o n a l m e m b e r s . N a t i o n a l c u l t u r e s m u s t also serve the double role of m a r k i n g m e m b e r s of the nation off from n o n m e m b e r s as well as providing a source of the horizons of significance d i s c u s s e d earlier. It is t h u s key, that a n a t i o n a l c u l t u r e be s u c h that those raised i n the nation will acquire it. B u t n a t i o n s are not face-to-face c o m m u n i t i e s . While they c a n be very c o m m u n i t y - b a s e d , a c o m m u n i t y is not a nation. National m e m b e r s do Renan, "Qu'est-ce qu'une nation?" p.41. ' Translation by author. 30 3  16 not all k n o w e a c h other, b u t they s h o u l d be able to recognize other m e m b e r s of their nation by the c u l t u r a l , linguistic, a n d other s u c h n a t i o n a l traits that they share. T h i s restriction o n the size of the n a t i o n suggests that, as the concept is defined here, very few societal g r o u p s will qualify as nations. A nation m u s t be large e n o u g h that it is not a face-toface c o m m u n i t y , b u t s m a l l e n o u g h that it c a n develop a s h a r e d language, c u l t u r e , history, territory, etc. T h e final c o m p o n e n t of the definition of the n a t i o n that I a m p r o p o s i n g is the criteria for m e m b e r s h i p i n the n a t i o n a l group. N a t i o n a l m e m b e r s are either b o r n or adopted into the n a t i o n . In the case of adoptions, a n individual's desire to j o i n a n a t i o n is not sufficient for h i m or her to gain m e m b e r s h i p therein. National m e m b e r s h i p is a matter of m u t u a l recognition. Feeling a part of a nation is only h a l f of the equation of m e m b e r s h i p . T h e other m e m b e r s of the nation m u s t recognize a n individual's m e m b e r s h i p i n the group as well. It is also i m p o r t a n t to point out, as Margalit a n d Raz do, that m e m b e r s h i p is not a matter of achievement. M e m b e r s h i p i n the nation is a n i s s u e of belonging. So to recapitulate m y definition, a nation is a self-defined  societal  group, active i n character, w h i c h provides its m e m b e r s with a context of choice a n d horizons of significance without w h i c h , its m e m b e r s w o u l d be seriously limited i n their ability to act as fully h u m a n subjects. A n a t i o n is a n intergenerational c o m m u n i t y , extended i n history, associated with a particular territory, exhibiting a distinctive language a n d a distinctive c u l t u r e that affects most of the aspects of the n a t i o n a l m e m b e r s lives. T h i s n a t i o n a l culture is acquired by those who are raised i n the nation. M e m b e r s h i p i n a nation is not a matter of achievement, b u t a matter of m u t u a l recognition.  Deep Diversity O n c e the terms n a t i o n a n d culture have been u n t a n g l e d , it becomes clear that m a n y C a n a d i a n citizens do not belong to a n a t i o n a l or ethnic group. So K y m l i c k a ' s delineation between the two is very important. B u t for it to be useful, one m u s t allow for the possibility that not all citizens fit neatly into one of the two categories of groups. E n g l i s h - s p e a k i n g , n o n -  17 aboriginal C a n a d i a n s clearly have their own cultures. A n d one c o u l d definitely m a k e the case for there being a majority c u l t u r e , not n a t i o n , that they dominate. B u t according to the definition that I have proposed, there is no E n g l i s h - s p e a k i n g , n o n - a b o r i g i n a l C a n a d i a n n a t i o n . T h e i r d o m i n a n t position i n the majority C a n a d i a n culture derives from the fact that E n g l i s h - s p e a k i n g , non-aboriginal C a n a d i a n s are the majority group i n , what S a m u e l L a S e l v a calls, the m o r a l c o m m u n i t y i n C a n a d a .  3 2  This  m o r a l c o m m u n i t y includes all of those who K y m l i c k a w o u l d c o m p r e s s u n d e r the u m b r e l l a of his majority linguistic c o m m u n i t y . B u t it also i n c l u d e s C a n a d a ' s minority national a n d ethnic g r o u p s as well. A c c o r d i n g to LaSelva, the foundations of C a n a d i a n federalism "provide a n u n d e r s t a n d i n g of how C a n a d i a n s , who have different ways of life, c a n also live a c o m m o n life together."  33  A t one level, aboriginal a n d  n o n - a b o r i g i n a l C a n a d i a n s are fundamentally different from e a c h other. A b o r i g i n a l peoples have histories, languages, a n d c u l t u r e s that n o n aboriginal C a n a d i a n s do not share. Aboriginal peoples are nations. B u t aboriginal a n d n o n - a b o r i g i n a l C a n a d i a n s do live a life i n c o m m o n with one another as m e m b e r s of the the m o r a l c o m m u n i t y that exists i n C a n a d a . In C a n a d a , o u r m o r a l c o m m u n i t y is one of the major c r u c i b l e s for the development of a C a n a d i a n culture a n d a C a n a d i a n identity that set C a n a d i a n s apart from citizens of other countries. B u t C a n a d a is certainly not a single n a t i o n . It w o u l d be extremely difficult to argue that B r i t i s h C o l u m b i a n s , Quebecers, a n d citizens of N u n a v u t are all m e m b e r s of the same n a t i o n given that the three g r o u p s have different histories,  speak  different languages, a n d have different cultures. B u t at the same time, the three g r o u p s do share commonalities by virtue of belonging to this m o r a l community. A n i n d i v i d u a l who is at the same time a citizen of a liberal democratic state a n d a m e m b e r of a minority n a t i o n a l group w i t h i n that state will identify differently with the state t h a n will another citizen of the 32  33  LaSelva, Samuel V. The Moral Foundations of Canadian Federalism: Paradoxes, Achievements,  and Tragedies of Nationhood. Montreal & Kingston: McGill-Queen's University Press, 1996. p.150. Ibid. p. 171.  18 same state. T h e national m e m b e r might identify primarily with his or her n a t i o n a l g r o u p , b u t at the same time, feel a strong attachment to the m o r a l c o m m u n i t y of the state. T h e identity of a citizen w h o d i d not belong to either a n ethnic or a minority national group w o u l d be more directly l i n k e d with his or her citizenship i n the state. T h e essence of the a r g u m e n t here is that different people belong to their countries, their c o m m u n i t i e s , their ethnic groups, a n d their nations i n different ways. C h a r l e s T a y l o r refers to this p h e n o m e n o n as deep diversity. W r i t i n g i n the context of C a n a d a , Taylor argues that if we are to have a n inclusive society, we m u s t "allow for second-level or deep diversity, i n w h i c h a plurality of ways of belonging w o u l d also be acknowledged a n d accepted."  3 4  B u t m a n y C a n a d i a n s have difficulty  accepting other ways of being C a n a d i a n , paradoxically because they are u n s u r e of their own identity as C a n a d i a n s .  3 5  T h i s insecurity about their  identity h a s led m a n y non-aboriginal C a n a d i a n s to fabricate a g r o u p identity for themselves, a r g u i n g either for the existence of a majority, E n g l i s h - s p e a k i n g C a n a d i a n n a t i o n , or for the existence of a single C a n a d i a n nationality. B u t both of these positions deny the complexities of C a n a d i a n group a n d i n d i v i d u a l identities. Non-aboriginal, E n g l i s h s p e a k i n g C a n a d i a n s do have a group identity by virtue of their m e m b e r s h i p i n a C a n a d i a n m o r a l c o m m u n i t y . B u t this group identity is not homogeneous.  F o r m e m b e r s of minority nations, it is only t h r o u g h  being a m e m b e r of their nation that they are C a n a d i a n . T h e complex nature of minority n a t i o n a l identities c a n be very difficult to u n d e r s t a n d for C a n a d i a n s whose m e m b e r s h i p i n the m o r a l c o m m u n i t y of C a n a d a does not p a s s t h r o u g h another identity first. A n d often, people fear what they do not u n d e r s t a n d . B u t the only way to put those fears to rest is for n o n aboriginal, E n g l i s h - s p e a k i n g C a n a d i a n s to make a genuine attempt to u n d e r s t a n d the perspectives that m e m b e r s of minority n a t i o n s have o n their identity as C a n a d i a n s . T h i s u n d e r s t a n d i n g m u s t i n c l u d e a recognition of deep diversity. 34  35  Taylor, Charles. Reconciling the Solitudes. Montreal: McGill-Queen's U P , 1994. P.183. LaSelva, Samuel V. "Aboriginal Self-Government and the Foundations of Canadian Nationhood." in B.C. Studies: The British Columbia Quarterly, (Winter 1998/99 Number 120). PP.41-54. p.47.  19  Group-Differentiated Rights In order to allow for deep diversity, a liberal democratic state m u s t a b a n d o n the politics of e q u a l dignity, the notion that a l l citizens of liberal democratic states s h o u l d be endowed with identical sets of i n d i v i d u a l rights a n d i m m u n i t i e s . It m u s t be open to recognizing group-differentiated rights for some minority groups. T h e starting point for the recognition of s u c h rights is Kymlicka's distinction between ethnic a n d n a t i o n a l g r o u p s , bearing i n m i n d that his requirement that every citizen belong to one of the two types of g r o u p s h a s been dropped. K y m l i c k a argues that there are three different types of group-differentiated rights: self-government  rights,  polyethnic rights, a n d special representation rights. Polyethnic rights a n d special representation rights are appropriate for ethnic g r o u p s , whereas self-government rights are only appropriate for n a t i o n a l g r o u p s . S p e c i a l representation a n d polyethnic rights, while often highly contentious, are nonetheless relatively straightforward concepts. S p e c i a l representation rights are "a response to some systematic disadvantage or barrier i n the political process w h i c h m a k e s it impossible for the group's views or interests to be effectively represented."  36  A n example of a special  representation right c o u l d be a guarantee to a specific ethnic g r o u p of a certain n u m b e r of seats i n a provincial legislature. Polyethnic rights are "intended to help ethnic g r o u p s a n d religious minorities express their particularity a n d pride without h a m p e r i n g their s u c c e s s i n the economic a n d political institutions of the d o m i n a n t society." A n example of a 37  polyethnic right would be the legal recognition of a p a r t i c u l a r group's religious holiday. Self-government rights are far more complex t h a n either of the first two types of group-differentiated rights. Self-government rights entail "some form of political a u t o n o m y or territorial j u r i s d i c t i o n , so as to e n s u r e the full a n d free development of [the nation] a n d the best interest of [its] people."  38  U s i n g self-government as s y n o n y m o u s with self-  determination, Margalit a n d Raz write that "the value of n a t i o n a l self3 6  37  38  Kymlicka, Multicultural  Ibid. p.31. Ibid. p.27.  Citizenship,  p.32.  20 determination is the value of entrusting the general political power over a g r o u p a n d its m e m b e r s to the group." It is the value of allowing g r o u p s to determine "the character of their social a n d economic environment, their fortunes, the course of their development, a n d the fortunes of their m e m b e r s by their own actions."  39  D a v i d Miller agrees. He argues that  "where a nation is a u t o n o m o u s , it is able to implement a scheme of social justice; it c a n protect a n d foster its own culture; a n d its m e m b e r s are to a greater or lesser extent able collectively to determine its c o m m o n destiny."  40  Margalit a n d Raz equate the term self-determination with self-  government. Miller u s e s the t e r m a u t o n o m o u s to m e a n self-governing. Clearly the definition of n a t i o n a l self-government is nearly as complex as that of the definition of the nation itself. B u t I will s i m p l y posit that selfgovernment is not a single group-differentiated right. V a r y i n g degrees of self-government  are possible.  If one is to r e m a i n within a liberal p a r a d i g m , group-differentiated rights, be they powers of self-government, polyethnic rights, or special representation rights c a n only be justified i n terms of the i m p o r t a n c e that the minority g r o u p s i n question have for the the self-conception of their m e m b e r s , a n d for the ability of those m e m b e r to act as fully h u m a n subjects. T h e fact that c a n not be ignored is that m e m b e r s of minority g r o u p s w i t h i n liberal democratic states are not only m e m b e r s of their respective n a t i o n a l or ethnic groups, they are citizens of their state as well. T h e i r minority group m e m b e r s h i p provides t h e m with one context of choice, b u t their m e m b e r s h i p in the state's m o r a l c o m m u n i t y provides t h e m with another. If one accepts the logic of deep diversity, t h e n it w o u l d be highly problematic to argue that all ethnic g r o u p s s h o u l d be entitled to the same polyethnic a n d special representation rights, a n d that all minority n a t i o n a l g r o u p s s h o u l d be entitled to the same powers of selfgovernment because to do so w o u l d be to ignore the differences i n g r o u p m e m b e r s h i p between groups, a n d to potentially trivialize the context of choice provided to the m e m b e r s of the minority g r o u p s by their membership in Canada's moral community. Margalit and Raz, "National Self-Determination." p.80. Miller, On Nationality, p.98. 39  40  21 Rights are only meaningful insofar as others agree to recognize those rights. If a n i n d i v i d u a l asserts a right w h i c h n o b o d y else is willing to recognize, t h e n that right is relatively meaningless. M o s t d i s c u s s i o n s of rights i n c l u d e questioning the source of rights. S u c h d i s c u s s i o n s tend to e n d with participants defending i r o n - c l a d positions i n w h i c h rights are either bestowed by G o d , or i n w h i c h people have rights by virtue of being h u m a n . So rather t h a n focusing on w h i c h rights minority g r o u p s have, it is a m u c h more useful a p p r o a c h to d i s c u s s the rights that minority g r o u p s should have. T h e logic of deep diversity suggests that group-differentiated rights become necessary w h e n the i n d i v i d u a l s i n a n ethnic or n a t i o n a l group feel that their state identity a n d their group identity are i n competition with one another, that a n expression of the one c a n only be achieved to the detriment of the other. T h e objective of a liberal i n recognizing group-differentiated rights s h o u l d be to protect the vitality of the minority group, while at the same time protecting the access of the group's m e m b e r s to the context of choice provided t h e m by C a n a d a ' s moral community.  Theoretical Propositions For Canada It is time that C a n a d i a n s move beyond debating the conflict between liberal i n d i v i d u a l i s m a n d minority group rights. T h e theoretical propositions that I have developed i n this chapter suggest that the recognition of some group-differentiated rights is necessary to e n s u r e that all C a n a d i a n citizens enjoy similar levels of a u t o n o m y , a cornerstone of liberal theory. A c c o r d i n g to the definition that I have proposed, the vast majority of aboriginal peoples i n C a n a d a are nations. If we as n o n aboriginal C a n a d i a n s , value the full a n d free participation of aboriginal peoples i n C a n a d i a n society, a n d as liberals we m u s t , t h e n it is imperative that we acknowledge the complex n a t u r e of their m e m b e r s h i p in C a n a d a ' s m o r a l c o m m u n i t y . T h i s acknowledgement, a n d the recognition of group-differentiated rights that would flow from it, does not require a p a r a d i g m shift i n the theoretical orientation of C a n a d i a n s . T h e theoretical propositions that I have developed here are liberal propositions. So as L a S e l v a h a s argued, the failure of non-aboriginal C a n a d i a n s to recognize  22 rights of self-determination for aboriginal peoples i n C a n a d a "would be strong evidence of the inability of C a n a d i a n s to u n d e r s t a n d the principles of Confederation a n d the foundations" of C a n a d a .  4 1  B e g i n n i n g with the basic liberal values of universality a n d the p r i m a c y of the a u t o n o m o u s , free-choosing i n d i v i d u a l , I have a r g u e d that all people share a u n i v e r s a l potential to define a n d formulate their own identity, a n d that only t h r o u g h this process c a n they r e a c h their full potential as a u t o n o m o u s , free-choosing i n d i v i d u a l s . In defining h i s or her own identity, the i n d i v i d u a l is required to m a k e choices, i n c l u d i n g c h o o s i n g a conception of the good life. B e c a u s e i n d i v i d u a l s c a n not m a k e these choices i n a m o r a l v a c u u m , they require a context of choice, w h i c h is provided to t h e m t h r o u g h , a m o n g other things, culture. A n i n d i v i d u a l who is denied access to his or her context of choice is i n c a p a b l e of being the a u t o n o m o u s , free-choosing i n d i v i d u a l that is the basic u n i t of the liberal democratic state. G i v e n the value that liberals place o n universality, s u c h a denial of the conditions necessary for the individual's free a n d full participation in his or her society c o u l d only be seen as a severe form of oppression. It is, therefore, i n the interest of the liberal society to protect the c u l t u r e s of its citizens. B u t seeing as different i n d i v i d u a l s belong to different types of societal g r o u p s a n d different c u l t u r e s , a n d that different i n d i v i d u a l s attribute different levels of importance to their citizenship in the larger state w h e n defining their own identity, the liberal democratic society s h o u l d adopt the principle of deep diversity. T h e f u n d a m e n t a l right of both national a n d ethnic g r o u p s i n liberal democratic states s h o u l d then be u n d e r s t o o d as the right to recognition. T h e s e groups have the right to be recognized for the value that they b r i n g to their i n d i v i d u a l m e m b e r s a n d to the society as a whole. T h i s is not to say that all s u c h groups have equal value, that they all contribute equally to the horizons of significance of their m e m b e r s , or that they are all deserving of the same group-differentiated rights. B u t if the state does not even recognize the existence of the g r o u p , t h e n the rest of the liberal society will never be able to c o m p r e h e n d the i m p o r t a n c e 41  LaSelva, Samuel V. "Aboriginal Self-Government." p.54.  J  23 of the group to the identity of its members. In the next chapter, I will a p p l y the theoretical propositions that I have developed here to aboriginal fishing rights. I will propose a n aboriginal fisheries policy for B r i t i s h C o l u m b i a that w o u l d have as its objective, to protect the contribution that fisheries m a k e to aboriginal c u l t u r e s a n d societies, a n d by extension, to the contexts of choice that are necessary for the full a n d free participation of aboriginal peoples i n C a n a d i a n society.  24  Chapter 2: An Alternative Aboriginal Fisheries Policy T h e theoretical propositions that I developed i n chapter one c o u l d form the b a s i s for a guide to aboriginal fisheries p o l i c y - m a k i n g i n B r i t i s h C o l u m b i a . A policy based on those theoretical propositions w o u l d focus o n the recognition of aboriginal rights to fish, a n d w o u l d have as its objective, to protect the contributions that fisheries m a k e to aboriginal c u l t u r e s , a n d b y extension, to the contexts of choice of aboriginal peoples in the province. T h e achievement of this objective w o u l d require that the policy incorporate the views of the aboriginal peoples affected o n the i m p o r t a n c e of fisheries to their respective societies a n d c u l t u r e s . So central to this policy is a significant transfer of m a n a g e m e n t authority to aboriginal peoples so that they c a n ensure that fisheries continue to play the central role that they have traditionally played i n aboriginal cultures. In C a n a d a , the policies regulating fisheries are formulated by the D e p a r t m e n t of Fisheries a n d O c e a n s (DFO). In B r i t i s h C o l u m b i a , the provincial government c a n influence decisions regarding the  management  of the Pacific fisheries, b u t it h a s no j u r i s d i c t i o n i n the area. F i s h e r i e s are differentiated from one another by species, by their location, a n d by the gear u s e d . Traditionally, aboriginal peoples i n B r i t i s h C o l u m b i a have fished for s a l m o n more t h a n for any other species. A b o r i g i n a l s a l m o n fisheries are t e r m i n a l fisheries, that is to say, they are c o n d u c t e d i n the coastal rivers, bays, a n d i n l a n d waters w h e n the s a l m o n are h e a d i n g u p stream to s p a w n . T h e type of gear u s e d i n aboriginal s a l m o n fisheries varies from place to place. Definitions w o u l d be very important i n a policy guided by the theoretical propositions that I outlined i n the first chapter. I w o u l d argue that, a c c o r d i n g to the definition that I proposed i n chapter one, the vast majority of aboriginal peoples i n B r i t i s h C o l u m b i a are nations. T h e s e are self-defined societal groups, active i n character, w h i c h provide their m e m b e r s with a context of choice a n d horizons of significance without w h i c h , the m e m b e r s of those nations w o u l d be seriously limited i n their ability to act a s fully h u m a n subjects. National g r o u p s are  25 intergenerational c o m m u n i t i e s , extended i n history, associated with a p a r t i c u l a r territory, exhibiting distinctive languages a n d distinctive c u l t u r e s that affect most of the aspects of their m e m b e r s lives. T h e n a t i o n a l c u l t u r e is acquired by those who are raised i n the n a t i o n . M e m b e r s h i p i n a nation is not a matter of achievement, b u t a matter of m u t u a l recognition. O n e of the cornerstones of this definition of a "nation" is that n a t i o n s m u s t be self-defined. T h e n a t i o n a l identity m u s t be defined b y those for w h o m it represents a central pillar of their i n d i v i d u a l identity. So a n aboriginal fisheries policy that was b a s e d o n the theoretical propositions that I developed i n chapter one w o u l d have to define aboriginal peoples as they define themselves. B e c a u s e aboriginal peoples are separate nations, the aboriginal fisheries policy w o u l d have to be sensitive to the fact that fisheries might have different i m p o r t a n c e s to different nations. T h e r e are, however, several generalizations that c a n be made about the importance of fisheries to aboriginal peoples i n B r i t i s h C o l u m b i a . A b o r i g i n a l peoples have always seen s a l m o n as a "lifeblood." S a l m o n were seen as c u r r e n c y , a n d as a tie to the E a r t h itself. W i t h o u t the s a l m o n , aboriginal societies w o u l d be fundamentally c h a n g e d . T h e a u t h o r s of the Royal C o m m i s s i o n 1  o n A b o r i g i n a l Peoples write that the relationship between aboriginal peoples a n d their l a n d s a n d resources is "both s p i r i t u a l a n d material, not only one of livelihood, b u t of c o m m u n i t y a n d indeed of the continuity of their c u l t u r e s a n d societies." In order to recognize the i m p o r t a n c e that 2  fisheries have for aboriginal peoples, a n d at the same time, be sensitive to differences i n that importance between nations, the a b o r i g i n a l fisheries policy w o u l d have to i n c l u d e the flexibility to allow i n d i v i d u a l i z e d fisheries p l a n s for e a c h aboriginal nation. T h i s flexibility i n the policy w o u l d allow for a recognition of differences amongst the traditional fisheries m a n a g e m e n t t e c h n i q u e s a n d strategies of different aboriginal peoples. B u t as with the i m p o r t a n c e of fisheries to aboriginal peoples, it is possible to m a k e some 1  Laviolette, Roxanna. Interview by author. Richmond, B.C., February 9, 2000.  2  "Restructuring the Relationship (Part 2)." Report of the Royal Commission on Aboriginal Peoples,  Volume 2. Ottawa: Canada Communication Group, 1996. p.448.  26 generalizations about traditional aboriginal fisheries m a n a g e m e n t . Traditionally amongst aboriginal peoples i n B r i t i s h C o l u m b i a , "reciprocal use a n d other ancient rites a n d c u s t o m s governed a c c e s s to fish, a n d people m a d e no distinction between harvesting for subsistence a n d harvesting for exchange or other purposes." T h i s a p p r o a c h to fisheries 3  m a n a g e m e n t is inconsistent with D F O ' s a p p r o a c h , i n w h i c h the d i s t i n c t i o n between recreational, c o m m e r c i a l , a n d subsistence  fisheries  plays a central part. B u t these conflicting m a n a g e m e n t strategies are not necessarily irreconcilable. There are precedents for a b o r i g i n a l fisheries policies i n w h i c h the allocations for subsistence a n d c o m m e r c i a l fisheries are undifferentiated. In W a s h i n g t o n State, tribal fisheries are allocated 50% of the Total Allowable C a t c h (TAC). T h e c i r c u m s t a n c e s that led to the 50% allocation are specific to W a s h i n g t o n State, b u t the State's 4  aboriginal fisheries policies c o u l d serve as a m o d e l for B r i t i s h C o l u m b i a . In 1974, the 20 treaty Indian tribes in W a s h i n g t o n State affected by J u d g e Boldt's decision i n United States v. Washington  5  to allocate 50% of  the T A C to T r i b a l fisheries formed the Northwest Indian F i s h e r i e s C o m m i s s i o n (NWIFC) as a body for m a k i n g fisheries policy, a n d also as a m o u t h p i e c e to speak o n their behalf with regards to fisheries management. Together, the N W I F C a n d the W a s h i n g t o n D e p a r t m e n t of F i s h a n d Wildlife (WDFW) established a series of agreements o n fisheries management. U n d e r the agreements, each m e m b e r tribe is responsible for regulating a n d m a n a g i n g the fisheries w i t h i n the territory determined to be its u s u a l a n d a c c u s t o m e d fishing g r o u n d . T h o s e fisheries i n c l u d e the six species of s a l m o n ( c h u m , sockeye, pink, coho, c h i n o o k , a n d steelhead), as well as h a l i b u t , herring, a n d shellfish. E a c h tribe h a s a 3  Newell, Dianne. Tangled Webs of History: Indians and the Law in Canada's Pacific Fisheries.  Toronto: University of Toronto press, 1997. p.207. The tribal fisheries in Washington State were developed in response to Judge Boldt's decision in the 1974 court case United States v. Washington. At issue in the case was the interpretation of an 1855 treaty signed between the United States Government and several of the tribal groups in the Pacific Northwest. Judge Boldt interpreted the section of the treaty reserving to the tribal groups in question 4  a right of taking fish, at all usual and accustomed grounds... in common with all citizens of the Territory  to mean that tribal fishermen were guaranteed a 50% share of the annual allowable catch of anadromous fish. United States v. Washington (1974) Washington Phase I, 384 F. Supp. 312. (hereafter Boldt) 5  27 fisheries m a n a g e r who is i n charge of its fisheries m a n a g e m e n t staff, a n d who h a s j u r i s d i c t i o n over harvest management, habitat protection, e n h a n c e m e n t , a n d enforcement. T h e W D F W m a n a g e s all of the fisheries i n the State that are not managed by the N W I F C m e m b e r s . T h e treaty tribes also sit on the Pacific F i s h e r y M a n a g e m e n t C o u n c i l (PFMC), w h i c h m a n a g e s the fisheries between the three mile near coastal waters a n d the two h u n d r e d mile limit of A m e r i c a n j u r i s d i c t i o n .  6  T h e near coastal  fisheries m a n a g e m e n t strategies adopted by the W D F W a n d by the N W I F C m e m b e r s m u s t be consistent with those adopted b y the P F M C .  7  A s a part of a n aboriginal fisheries policy guided by the theoretical propositions that I developed i n chapter one, D F O c o u l d i m p l e m e n t a fisheries m a n a g e m e n t regime in B r i t i s h C o l u m b i a similar to the W a s h i n g t o n State model. In fact, D F O h a s already b e g u n to transfer some fisheries m a n a g e m e n t authority to aboriginal peoples. T h e Nisga'a Agreement  Final  provides for a n a n n u a l allocation of Nass River fish to the  Nisga'a. U n d e r the Agreement, the Nisga'a L i s i m s government will have the a u t h o r i t y to manage the fisheries w i t h i n the parameters established in the treaty a n d i n a separate Harvest Agreement that will be negotiated between D F O a n d the Nisga'a. U n d e r the Agreement, Nisga'a fishers will 8  be allowed to sell their c a t c h s h o u l d they so choose. B u t fisheries c a n not be m a n a g e d t h r o u g h a system of u n c o n n e c t e d , local management regimes. S u c h a system would be u n w o r k a b l e , a n d u n a b l e to protect the long-term sustainability of the resource. F i s h e r i e s m u s t be m a n a g e d at the provincial level. So i n order for D F O to b r e a k with the "long-standing ethos i n resource management that perpetuates distinctions between [aboriginal] users a n d [non-aboriginal] managers,"  9  the D e p a r t m e n t w o u l d have to include aboriginal peoples i n fisheries m a n a g e m e n t at the provincial level. In the United States, fisheries management is divided between the federal and state governments. The state governments have jurisdiction over fisheries within the three mile near coastal waters, and the federal government manages those that take place between three and two hundred miles off of the coast. 6  7  8  9  Comprehensive Tribal Fisheries Management on the internet at http://www.nwifc.wa.gov/nwifc.htm Nisga'a Final Agreement: Canada, British Columbia, Nisga'a Nation. Chapter 8.  "Restructuring the Relationship (Part 2)." p.651.  28 Increased aboriginal management of the  fisheries at both the local  a n d the p r o v i n c i a l levels is necessary if aboriginal fishing rights are to be the self-government rights that I d i s c u s s e d i n chapter one. T h e a u t h o r s of the R o y a l C o m m i s s i o n o n A b o r i g i n a l Peoples write that m a n y Aboriginal people emphasized the integrated nature of the spiritual, familial, economic a n d political spheres. While some C a n a d i a n s tend to see government as remote, divorced from the people a n d everyday life, Aboriginal people generally view government i n a more holistic way, as inseparable from the totality of c o m m u n a l practices that m a k e u p a way of life. 10  D i a n n e Newell argues that for aboriginal nations, fisheries is l i n k e d to i s s u e s s u c h as "economic self-sufficiency, a n d social goals."  11  management  pride i n heritage,  T h e political, c u l t u r a l , spiritual, familial, a n d  economic lives of aboriginal peoples are at the heart of the contexts of choice that aboriginal cultures provide to their m e m b e r s . If, as is a r g u e d i n the Royal C o m m i s s i o n o n Aboriginal Peoples, "the recognition, a c c o m m o d a t i o n a n d implementation of Aboriginal rights to a n d j u r i s d i c t i o n over l a n d s a n d resources is absolutely critical to their goals of self-sufficiency  a n d self-reliance,"  12  then a n aboriginal fisheries policy  guided by the theoretical propositions that I developed i n chapter one w o u l d have to grant s u b s t a n t i a l management powers to the aboriginal peoples i n the province. T h e limitations of m y theoretical propositions as a guide to policym a k i n g stem from the fact that a context of choice is a n extremely abstract concept. T h e r e is n o t h i n g complicated about the a r g u m e n t that a n i n d i v i d u a l c a n only m a k e free a n d informed choices w h e n he or she h a s a range of options to choose from a n d a m e a n s of differentiating between t h e m . B u t identifying the elements of the context of choice that provide the i n d i v i d u a l with those options a n d the m e a n s to differentiate between t h e m is a very difficult endeavor. In fact, it w o u l d be virtually impossible 10  "Restructuring the Relationship (Part 1)." Report of the Royal Commission on Aboriginal Peoples,  Volume 2. Ottawa: Canada Communication Group, 1996. p.115. " Newell, Tangled Webs of History, p.210.  ' "Restructuring the Relationship (Part 2)." p.447. 2  29 to itemize every element that contributed to a n individual's context of choice. B u t for the theoretical propositions to be useful i n g u i d i n g policym a k i n g , it is not necessary to list every element i n a n individual's context of choice. B e c a u s e the objective of a policy g u i d e d by those propositions m u s t be the protection of a n individual's context of choice, it is only necessary to identify elements that are u n d e r threat. F i s h i n g rights are a case i n point. T h e r e c a n be no d o u b t i n g the fact that fisheries play a very central role in the economic, political, s p i r i t u a l , a n d c u l t u r a l lives of aboriginal peoples i n B r i t i s h C o l u m b i a . Clearly, fisheries are integral to the contexts of choice of aboriginal peoples i n the province. So even without being able to itemize the elements i n their contexts of choice, it is legitimate to c l a i m that the d e n i a l to aboriginal peoples of the right to fish i n their preferred traditional ways w o u l d represent a clear threat to the context of choice that aboriginal c u l t u r e s provide to their m e m b e r s . B e c a u s e contexts of choice are s u c h abstract concepts, the s u c c e s s of a n y policy guided by the theoretical propositions that I developed i n chapter one w o u l d be very difficult to judge. T h e effects of either a weakening or a strengthening of a context of choice will be felt over several generations, a n d m a y take different forms from generation to generation. F o r example, the aboriginal c h i l d r e n who attended the B r i t i s h C o l u m b i a residential schools were separated from their families, p u n i s h e d for s p e a k i n g their own languages, a n d forcibly educated i n a n e d u c a t i o n system that was foreign to t h e m . Essentially, the residential school system was designed to deny to aboriginal c h i l d r e n a c c e s s to their context of choice. B u t the effects of the residential schools have been felt by m e m b e r s of the next generations of aboriginal peoples as well, even t h o u g h they never attended the schools. M a n y have never even been taught to speak their own languages. Likewise, the effects of a n aboriginal fisheries policy guided by the theoretical propositions o n g r o u p differentiated rights w o u l d be felt over several generations a n d w o u l d be impossible to m e a s u r e empirically. In order to m e a s u r e the s u c c e s s of a policy guided by the theoretical  30 propositions that I developed i n chapter one, it w o u l d be necessary to m e a s u r e the c u l t u r a l health of aboriginal nations. M o s t government policies are reviewed periodically i n order that government officials determine whether or not the policies are meeting established  targets.  B u t it w o u l d be very difficult to set c u l t u r a l health targets that c o u l d be m e a s u r e d accurately. While often u s e d to illustrate some of the p r o b l e m s i n a b o r i g i n a l c o m m u n i t i e s , indicators s u c h as health statistics, employment rates, education rates, a n d suicide rates do not give the full m e a s u r e of a culture's health. A c c o r d i n g to m y theoretical propositions, the only true m e a s u r e of a minority nation's c u l t u r a l health w o u l d be the degree to w h i c h the n a t i o n a l m e m b e r s ' context of choice allowed t h e m to participate fully a n d freely i n C a n a d i a n society. A s with the elements of a context of choice, it w o u l d be very difficult to itemize the requirements for full a n d free participation. B u t a government policy need not have shortterm performance targets i n order to be worthwhile. In order for the federal government to be able to act i n the best interests of its citizenry, the government m u s t be able to develop policies with long-term goals. A n d if these goals are worthwhile, a n d the policy demonstrates a clear strategy for achieving t h e m , the absence of short-term performance targets does not necessarily point to a flaw i n the policy. T h e aboriginal fisheries policy that I a m p r o p o s i n g w o u l d establish a fisheries m a n a g e m e n t regime that w o u l d allow for aboriginal peoples to a s s u m e significant m a n a g e m e n t authority over their local fisheries, while at the same time m a i n t a i n i n g a province wide management strategy. T h e most effective way to a c c o m p l i s h these two objectives w o u l d be to adopt a similar m a n a g e m e n t model to that developed i n W a s h i n g t o n State. T h e authority to manage local fisheries w o u l d be transferred to aboriginal peoples, a s they defined themselves, so as to e n s u r e that the p a r t i c u l a r w a y s i n w h i c h fisheries contributed to their society were m a i n t a i n e d . T h e aboriginal nation w o u l d be allocated a portion of the provincial T o t a l Allowable C a t c h (TAC) that it c o u l d manage as it saw fit. T h e allocations for subsistence, recreational, a n d c o m m e r c i a l fisheries w o u l d not be separated, b u t the n a t i o n w o u l d have the authority to divide its allocation  31 amongst the v a r i o u s players i n the fisheries. T h e allocations to aboriginal peoples w o u l d be determined by a fisheries m a n a g e m e n t regime at the provincial level that w o u l d coordinate the fisheries a n d a s s u r e their long term sustainability. In order to avoid the aboriginal user, n o n - a b o r i g i n a l m a n a g e r m o d e l that the a u t h o r s of the Royal C o m m i s s i o n o n Aboriginal Peoples alluded to, aboriginal peoples w o u l d have to be i n c l u d e d i n fisheries management at the p r o v i n c i a l level as well. O n e possibility w o u l d be for aboriginal peoples to form a p a n B r i t i s h C o l u m b i a n fisheries authority, similar to the N W I F C i n W a s h i n g t o n State, a n d for that body to be represented i n fisheries m a n a g e m e n t decisions at the provincial level. B u t that is only one possibility. U n d e r a n aboriginal fisheries policy guided b y the theoretical propositions that I developed i n chapter one, the decision of how to organize themselves w o u l d be left u p to the aboriginal peoples i n the province. I believe that this aboriginal fisheries policy, based o n the theoretical propositions that I developed i n chapter one, c o u l d contribute in a m e a n i n g f u l way to aboriginal peoples i n B r i t i s h C o l u m b i a b e c o m i n g full a n d free participants i n C a n a d i a n society. B y allowing i n d i v i d u a l aboriginal n a t i o n s significant fisheries m a n a g e m e n t authority w i t h i n a provincial m a n a g e m e n t regime i n w h i c h they w o u l d also participate, the policy w o u l d recognize the complex identities of aboriginal peoples. It w o u l d allow t h e m significant a u t o n o m y i n a n a r e a of j u r i s d i c t i o n that is central to their c u l t u r e s a n d societies, while at the same time recognizing that aboriginal peoples are C a n a d i a n a n d m u s t function w i t h i n the framework of C a n a d a . T h e policy w o u l d also implement a fisheries m a n a g e m e n t regime that c o u l d coordinate the fisheries i n the province a n d e n s u r e their long-term sustainability. T h e i m p l e m e n t a t i o n of this policy w o u l d require that D F O modify its a p p r o a c h to fisheries m a n a g e m e n t , b u t not i n a n y way that h a s not been tried elsewhere or that w o u l d threaten the effective management of fisheries i n B r i t i s h C o l u m b i a . In the next chapter, I will shift the focus to the S u p r e m e C o u r t of C a n a d a decisions on aboriginal fishing rights. T h e s e decisions  represent  the theoretical framework within w h i c h D F O developed the A b o r i g i n a l Fisheries Strategy. M y objective is to determine the legality of the aboriginal fisheries policy that I have proposed i n this chapter.  33  Chapter 3: Major Supreme Court of Canada Decisions on Aboriginal Fishing Rights Since the enactment of the Constitution Act 1982,  aboriginal a n d  treaty rights have been constitutionally protected i n C a n a d a . B u t the task of defining aboriginal rights h a s been left mostly to the courts. M u c h of the definition of aboriginal rights h a s been developed i n the context of aboriginal fishing rights. In 1990, the S u p r e m e C o u r t began the process of interpreting the constitutional protection of aboriginal rights i n the case of R. v. Sparrow.  1  In 1996, the C o u r t released three more aboriginal fishing  decisions: Van der Peet, Gladstone, 2  3  a n d Smokehouse.  decisions, along with the Court's 1998 Delgamuukw  4  5  These four decision, constitute  the p r i m a r y elements i n the j u d i c i a l doctrine of aboriginal rights that exists i n C a n a d a today. B u t d u e to several inconsistencies i n the decisions, m a n y questions r e m a i n as to the extent a n d n a t u r e of the protected aboriginal rights. In this chapter, I will d i s c u s s the four major aboriginal fishing decisions i n order to determine the legality of the aboriginal fisheries policy that I proposed i n chapter two. The  C o n s t i t u t i o n a l Protection of Aboriginal  Rights  T h e Constitution Act 1982 h a s h a d far reaching consequences for aboriginal peoples i n C a n a d a . Section 35 of the Act reads as follows: 35.  (1) T h e existing aboriginal a n d treaty rights of the aboriginal peoples of C a n a d a are hereby recognized a n d affirmed. (2) In this A c t , "aboriginal peoples of C a n a d a " i n c l u d e s the Indians, Inuit a n d Metis peoples of C a n a d a . (3) F o r greater certainty, i n subsection (1) "treaty rights" i n c l u d e s rights that now exist by way of l a n d claims agreements or m a y be  1 2 3  4  5  ft v. Sparrow, [1990] 1 S.C.R. 1075 (hereafter Sparrow) ft v. Van der Peet, [1996] 2 S.C.R. 507 (hereafter Van der Peet) ft v. Gladstone, [1996] 2 S.C.R. 723 (hereafter Gladstone) N.T.C. Smokehouse L.T.D. v. The Queen., [1996] 2 S.C.R. 672 (hereafter Smokehouse) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (hereafter Delgamuukw)  34 so a c q u i r e d . (4) Notwithstanding any other provisions of this A c t , the aboriginal a n d treaty rights referred to i n subsection (1) are guaranteed equally to male a n d female p e r s o n s . 6  B u t while treaty rights are easily defined as the rights that are e n u m e r a t e d i n treaties or l a n d c l a i m s agreements signed between a n aboriginal people a n d the C r o w n , aboriginal rights are far more difficult to define. T h e major aboriginal rights cases have involved a n aboriginal p e r s o n or group being arrested for engaging i n a n activity that violated statute law, a n d c l a i m i n g to be i n the exercise of a n aboriginal right. Typically, the aboriginal person or group h a s claimed that because they were exercising a Section 35 right, the law that they are a c c u s e d of h a v i n g violated is of no force or effect by virtue of s. 52(1) of the Constitution Act 1982 w h i c h reads as follows: 52. (1) T h e C o n s t i t u t i o n of C a n a d a is the supreme law of C a n a d a , a n d a n y law that is inconsistent with the provisions of the C o n s t i t u t i o n is, to the extent of the inconsistency, of n o force or effect. (2) T h e constitution of C a n a d a i n c l u d e s (a) the Canada Act;  Act 1982, i n c l u d i n g this  (b) the A c t s a n d orders referred to i n the schedule; a n d (c) any a m e n d m e n t to a n y Act or order referred to in p a r a g r a p h (a) or (b). 7  R. v. Sparrow 6  7  T h e first Section 35 defense was presented i n R v. Sparrow. In 1984, Archer, Keith, Roger Gibbins, Rainer Knopff, and Leslie A. Pal. Parameters of Power: Canada's Political Institutions. Toronto: Nelson, 1995. p.583. Ibid, p.589.  35 R o n a l d Sparrow, a m e m b e r of the M u s q u e a m First Nation, was charged u n d e r the Fisheries  Act for fishing with a longer drift net t h a n was allowed  by his band's food fishing license. It is important to note that the section of the lower F r a s e r River o n w h i c h M r . Sparrow was fishing was "not part of a reserve, nor d i d a n y treaty apply."  8  In his defense, Sparrow argued  that he was exercising a n existing aboriginal right to fish that was protected by section 3 5 of the Constitution Act 1982.  B e c a u s e it was  constitutionally protected, Sparrow argued that his right was i m m u n e to regulation by the Department of Fisheries a n d O c e a n s (DFO). Sparrow was convicted at trial, a n d his case was appealed all the way to the S u p r e m e C o u r t of C a n a d a . In a u n a n i m o u s decision delivered by C h i e f J u s t i c e D i c k s o n a n d J u s t i c e L a Forest, the S u p r e m e C o u r t d i s m i s s e d both M r . Sparrow's appeal a n d the Crown's cross-appeal, a n d sent the case b a c k for a new trial. B u t i n its decision, the C o u r t established a set of guidelines for the interpretation of section 3 5 rights. O f p a r t i c u l a r note are the C o u r t ' s interpretation of the p h r a s e s "existing aboriginal a n d treaty rights" a n d "recognized a n d affirmed," the test of extinguishment adopted b y the J u s t i c e s for aboriginal rights, a n order of priority of access to scarce resources where a section 3 5 aboriginal or treaty right is in effect, a n d a requirement that the aboriginal perspective be incorporated into a n y future j u d g m e n t s on aboriginal rights. A c c o r d i n g to the C o u r t , aboriginal rights are sui generis i n nature, m e a n i n g that they are u n i q u e , a n d "need not conform to traditional c o m m o n law rights." Aboriginal rights arise from the fact that, since long 9  before the arrival of E u r o p e a n s i n what is now C a n a d a , aboriginal peoples have lived i n organized societies, m e m b e r s h i p i n w h i c h h a s entitled t h e m to certain rights. A l t h o u g h the Sparrow decision does not i n c l u d e a n i n depth analysis of the definition of aboriginal rights, the J u s t i c e s do h i n t at a definition. D i c k s o n a n d L a Forest write that "the evidence reveals 8  8  Tennant, Paul. Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989. Vancouver: UBC Press, 1990. p.225. Tennant, Chris. "Justification and Cultural Authority in s. 35(1) of the Constitution Act, 1982: Regina v. Sparrow." in The Dalhousie Law Journal (November 1991 V.14 No.2). PP. 372-86. p.375.  36 that the M u s q u e a m have lived i n the area as a n organized society long before the c o m i n g of E u r o p e a n settlers, a n d that the t a k i n g of s a l m o n was a n integral part of their lives a n d r e m a i n s so to this day."  1 0  The  requirement that a n aboriginal right be a n integral practice to a n aboriginal culture, a n d that it have continuity with a practice that predates the arrival of E u r o p e a n settlers, later became the Court's s t a n d a r d test for aboriginal rights. T h e Court's d i s c u s s i o n of the word "existing" i n the p h r a s e "existing aboriginal a n d treaty rights" is one of the most significant aspects of the Sparrow decision. In order to be protected by section 35, a right c a n not have been extinguished prior to 1982. T h e C o u r t r u l e d that "extinguished rights are not revived by the C o n s t i t u t i o n act 1982,"  11  a relatively obvious  c o n c l u s i o n given the w o r d i n g of section 35. T h e C o u r t also r u l e d that the aboriginal a n d treaty rights protected by section 35 are not limited to those that were defined a n d regulated i n 1982. D i c k s o n a n d L a Forest write that "the notion of freezing existing rights w o u l d incorporate into the C o n s t i t u t i o n a crazy patchwork of regulations."  12  T h e Court concludes  that the w o r d "existing" s h o u l d be interpreted to m e a n "unextinguished rather t h a n exercisable at a certain time i n history."  13  Dickson and L a  Forest write that "the phrase existing aboriginal rights m u s t be interpreted flexibly so as to permit their evolution over time... those rights are affirmed i n a contemporary form rather t h a n i n their primeval simplicity a n d vigour," a n d that "an a p p r o a c h to the constitutional guarantee embodied i n s. 35(1) w h i c h w o u l d incorporate frozen rights m u s t be rejected."  14  O n the question of extinguishment, the C o u r t r u l e d that laws of general application are not sufficient to extinguish aboriginal rights. T h e C r o w n h a d argued that a n y exercise of a n aboriginal right that conflicted with a law of general application, i n this case the Fisheries Act, 10  Sparrow, reprinted in Kulchyski, Peter. Ed. Unjust Relations: Aboriginal Rights in Canadian Courts.  Ibid, Ibid, Ibid, " Ibid,  11  12  13  was  Toronto: Oxford University Press, 1994. PP.212-237. p.220. p.219. p.219. p.219. p.220.  37 automatically extinguished. T h e C o u r t rejected this a r g u m e n t a n d r u l e d that "the Sovereign's intention m u s t be clear a n d p l a i n if it is to extinguish a n aboriginal right." T h e U n i t e d States S u p r e m e C o u r t h a s 15  adopted a similar test of extinguishment. In  Dion, J u s t i c e M a r s h a l l writes  that "what is essential is that C o n g r e s s actually c o n s i d e r e d the conflict between its intended action o n the one h a n d a n d Indian treaty rights o n the other, a n d chose to resolve the conflict by abrogating the treaty." T h e next section of  16  Sparrow focuses o n D i c k s o n a n d L a Forest's  interpretation of the phrase "recognized a n d affirmed." T h e y write that "the n a t u r e of s. 35(1) itself suggests that it be c o n s t r u e d i n a purposive way. W h e n the p u r p o s e s of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words i n the c o n s t i t u t i o n a l provision is d e m a n d e d . "  17  T h e y also write that "it is  possible, a n d , indeed, c r u c i a l , to be sensitive to the aboriginal perspective itself o n the m e a n i n g of the rights at stake." T h e final section of the  18  Sparrow decision is devoted to  infringements of Section 35 a n d possible justifications for those infringements. In order to show that a n aboriginal right h a s been interfered with to the point of constituting a n infringement of s.35(l), the i n d i v i d u a l or group m a k i n g the c l a i m against the C r o w n m u s t show that the limitation o n their ability to exercise their right is u n r e a s o n a b l e , that it i m p o s e s u n d u e h a r d s h i p , a n d that it denies to t h e m their preferred m e a n s of exercising that right. T o justify a n infringement of Section 35 the C r o w n m u s t show that its legislation was enacted i n furtherance of a "valid legislative objective," Crown.  19  a n d that it u p h o l d s the h o n o u r of the  2 0  W i t h respect to aboriginal fishing rights, the C o u r t r u l e d that ^Sparrow (reprinted in Kulckyski). p.223. Binnie, W.I.C. 'The Sparrow Doctrine: Beginning of the End or End of the Beginning?" in (Fall 1990 V.15 No.1-2). Queen's Law Journal. PP.217-53. p.228. Sparrow (reprinted in Kulchyski). p.228. Tennant, Chris. "Justification and Cultural Authority." p.375. Sparrow (reprinted in Kulchyski). p.231-2. In Guerin v. R. [Guerin v. R., [1984] 2 S.C.R. 335 (hereafter Guerin)] the Court found that the honour of the Crown includes a fiduciary responsibility vis-a-vis aboriginal peoples and a requirement that the relationship between the two be trust-like, not adversarial. 16  17  18 19  20  38 m a n a g e m e n t a n d conservation of the resource does constitute a valid legislative objective, a n d t h u s a legitimate basis for infringements of s. 35(1). B u t D i c k s o n a n d L a Forest also write that "the constitutional nature of the M u s q u e a m food fishing rights m e a n s that a n y allocation of priorities after valid conservation m e a s u r e s have been i m p l e m e n t e d m u s t give top priority to Indian food fishing."  21  C o m m e r c i a l a n d recreational  fishing interests m u s t bear the b r u n t of conservation m e a s u r e s . At first glance, the Sparrow decision w o u l d seem to open the door for the C o u r t to define a vast catalogue of constitutionally protected aboriginal rights i n C a n a d a . B u t some commentators, s u c h as W . I . C . B i n n i e , d o u b t that the C o u r t will do so a n y time soon. B i n n i e writes that "the Sparrow decision is i n the g r a n d tradition of S u p r e m e C o u r t of C a n a d a cases that have raised ambiguity about the content of aboriginal rights to a h i g h art form."  22  H e argues that h a v i n g r u l e d that Section 35  rights were not extinguished by government regulation, a n d that governments will i n future have very little authority to regulate those rights except w i t h i n narrow limits, "the courts will now be reluctant to read into section 3 5 a sufficient catalogue of protected activities to provide A b o r i g i n a l peoples with the expected constitutional solution to the p r o b l e m s that beset m a n y Native communities."  23  T h e S u p r e m e Court's  1996 decision i n the case of R. v. Van der Peet w o u l d seem to s u p p o r t Binnie's prediction.  An  Aboriginal Right to Fish Commercially? While the ramifications of the Sparrow decision were certainly far  reaching, the only section 35 right that w a s actually defined i n the decision w a s the M u s q u e a m right to fish for food, social, a n d c e r e m o n i a l p u r p o s e s . H a v i n g explicitly limited their decision to this p a r t i c u l a r aspect of aboriginal fishing, it w a s inevitable that the C o u r t w o u l d have to revisit the issue of aboriginal fishing rights. O n A u g u s t 2 1 , 1996, the S u p r e m e C o u r t h a n d e d down decisions i n the cases of R. v. Van der Peet, R. v. Gladstone, a n d N.T.C. Smokehouse L.T.D. v. The Queen. A l l three cases Sparrow (reprinted in Kulchyski). p.233. Binnie. "The Sparrow Doctrine." p.221. Ibid, p.217.  21 22 23  39 dealt with aboriginal rights to fish commercially. Smokehouse was the N.T.C Smokehouse Ltd. company's appeal of its conviction for having purchased fish from members of the local First Nations on the west coast of Vancouver Island and then re-sold them on the commercial market. Because the fish had been caught under the authority of Indian food fishing licenses, the company was convicted of violating s. 4(5) and s. 27(5) of the British Columbia Fishery (General) Regulations. After losing its appeal, the company appealed its case to the Supreme Court of Canada. In Gladstone, Donald and William Gladstone, members of the Heiltsuk First Nation, were charged with attempting to sell herring spawn on kelp in the Vancouver area. Because they did not have the proper licenses, the accused were convicted under s. 61(1) of the Fisheries Act for having contravened s. 20(3) of the Pacific Herring Fishery regulation. The Gladstones also lost their appeal before their case made its way to the Supreme Court of Canada. In Van der Peet, Dorothy Marie Van der Peet, a member of the Sto:lo First Nation, was charged with selling ten salmon for five dollars apiece. The salmon had been caught under the authority of an Indian food fishing license, and so Van der Peet was convicted of having violated s. 27(5) of the British Columbia Fishery (General) Regulations. She won the right to a new trial when a summary appeal judge found in her favour; however, the B.C. Court of Appeal reinstated Van der Peet's conviction. Her case was appealed to the Supreme Court of Canada. 24  25  26  In each of the three cases, Smokehouse, Gladstone, and Van der Peet, the accused argued that they were exercising existing aboriginal rights that were protected by s. 35(1) of the Constitution Act 1982, and that by virtue of s. 52(1), the regulations that they had contravened were of no force or effect. Because the three cases were so similar, the Court released the three judgments together. The written decision in Van der Peet establishes the principles for the interpretation of s. 35(1). Because 24  25  26  Smokehouse, p . 6 7 2 - 3 . Gladstone, p . 7 2 4 . Van der Peet. p . 5 0 7 - 8 .  40 m a n y of the reasons for j u d g m e n t given i n the Gladstone  and  Smokehouse  decisions merely refer b a c k to Van der Peet, the latter is considered to be the most significant of the three  decisions.  O f course, the S u p r e m e C o u r t was not starting with a b l a n k slate w h e n it set out i n Van der Peet to establish the principles for interpreting s. 35(1). M u c h of that work h a d already been done i n Sparrow.  In  Sparrow,  the C o u r t h a d dissected the language of s. 35(1), a n d i n so doing, h a d set m a n y of the parameters for the interpretation of the constitutional protection afforded to aboriginal a n d treaty rights. B u t the i s s u e of defining aboriginal rights was not before the C o u r t u n t i l Van der Peet.  R. v. Van der Peet U n l i k e Sparrow,  Van der Peet was not a u n a n i m o u s decision. C h i e f  J u s t i c e L a m e r wrote the majority decision with J u s t i c e s L a Forest, S o p i n k a , G o n t h i e r , Cory, Iacobucci, a n d Major c o n c u r r i n g . J u s t i c e s M c L a c h l i n a n d L ' H e u r e u x - D u b e e a c h wrote separate d i s s e n t i n g opinions. In h i s decision, L a m e r identifies the source of aboriginal rights a n d establishes a test for defining them. T h i s test proved to be the p r i m a r y c a u s e for the split i n the C o u r t as both M c L a c h l i n a n d L ' H e u r e u x - D u b e argue against its adoption; however, the two dissenting J u s t i c e s were u n a b l e to agree on a n alternate test. W r i t i n g for the majority, L a m e r argues that aboriginal rights exist because of the the prior occupation of North A m e r i c a by aboriginal peoples. He writes that "what s. 35(1) does is provide the constitutional framework t h r o u g h w h i c h the fact that aboriginals lived o n the l a n d i n distinctive societies, with their own practices, traditions a n d c u l t u r e s , is acknowledged a n d reconciled with the sovereignty of the C r o w n . "  27  In  arriving at this c o n c l u s i o n , L a m e r refers to j u r i s p r u d e n c e on both aboriginal rights a n d aboriginal title from C a n a d a , A u s t r a l i a , a n d the U n i t e d States. In the case of Worcester v. Georgia, * C h i e f J u s t i c e M a r s h a l l 2  of the U n i t e d States S u p r e m e C o u r t wrote that the Indian nations h a d always been considered as distinct, independent political c o m m u n i t i e s , 27  28  Van der Peet. p.539. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (hereafter Worcester)  41 retaining their original n a t u r a l rights, as the u n d i s p u t e d possessors of the soil, from time i m m e m o r i a l , with the single exception of that imposed by irresistible power, w h i c h excluded t h e m from intercourse with a n y other E u r o p e a n potentate t h a n the first discoverer of the coast of the p a r t i c u l a r region claimed." 29  L a m e r writes of this passage that "Marshall C . J . ' s essential insight that the c l a i m s of the Cherokee m u s t be analyzed i n light of their pre-existing o c c u p a t i o n a n d use of the land...is as relevant for the identification of the interests s. 35(1) was intended to protect as it was for the adjudication of Worcester's c l a i m .  3 0  L a m e r proceeds to develop a test for the identification of the aboriginal rights that s. 35(1) was intended to protect. He writes that "in order to be a n aboriginal right, a n activity m u s t be a n element of a practice, c u s t o m or tradition integral to the distinctive c u l t u r e of the aboriginal g r o u p c l a i m i n g the right." a distinctive culture" test.  32  31  L a m e r calls this test the "integral to  He argues that the first step i n a p p l y i n g the  test is to accurately characterize the practice, c u s t o m , or tradition that is being c l a i m e d as a n aboriginal right, a process that will necessarily involve t a k i n g into a c c o u n t the aboriginal perspective. T h e next part of the test involves the determination of whether or not the practice, tradition, or c u s t o m is integral to the lives of the aboriginal group c l a i m i n g it as a n aboriginal right. L a m e r writes that "in order to be integral a practice, c u s t o m or tradition m u s t be of central significance to the.aboriginal society i n question." It m u s t be "one of the things that truly m a d e the society what it was."  33  L a m e r u s e s the past tense i n this sentence  because of his further requirement that "the practices, c u s t o m s a n d traditions w h i c h constitute aboriginal rights are those w h i c h have c o n t i n u i t y with the practices, c u s t o m s a n d traditions that existed prior to 29 30 31 32 33  Worcester cited in Van der Peet. p.545. Van der Peet. p.545. Ibid, p.549. Ibid, p.563. Ibid, p.553.  42 contact" with Europeans. Lamer is adamant about the fact that aboriginal rights must trace their origins to pre-contact practices, customs, or traditions. In fact, he goes as far as to rule that "where the practice, custom or tradition arose solely as a response to European influences then that practice, custom or tradition will not meet the standard for recognition of an aboriginal right." 34  35  In applying the '"integral to a distinctive culture" test to the case of Ms. Van der Peet, Lamer argues that the appellant was not claiming a right to sell fish commercially, but rather "an aboriginal right to exchange fish for money or for other goods." Lamer concludes that amongst the Sto:lo, "no regularized trade in salmon took place in aboriginal times. Such trade as took place was either for ceremonial purposes or opportunistic exchange taking place on a casual basis," and was "incidental only." He rules that Ms. Van der Peet failed to demonstrate that she was exercising an existing aboriginal right in selling the ten fish, and so her appeal should be dismissed. Justices L'Heureux-Dube and McLachlin both dissented from the majority decision in Van der Peet, arguing separately that Ms. Van der Peet's appeal should in fact have been allowed. The crux of L'HeureuxDube's objection to Lamer's written decision is her belief that the Chief Justice was in error when he ruled that s. 35(1) protects a "catalogue of individualized practices, customs and traditions." Instead, L'HeureuxDube argues that s. 35(1) protects the "distinctive culture of which aboriginal activities are manifestations." She writes that in lieu of the Chief Justice's definition, aboriginal rights should be defined as "the practices, customs and traditions... that are sufficiently significant and fundamental to the culture and social organization of a particular group of aboriginal people." These should be the practices, customs and 36  37  38  39  traditions that provide the aboriginal group in question with "a way and "Van der Peet. p.554. Ibid, p.562. Ibid, p.563. Ibid, p.567. Ibid, p.593. Ibid, p.594. 35  38  37  38  39  43 m e a n s of living i n a n organized society."  40  L ' H e u r e u x - D u b e ' s view of the  rights protected by section 35 differs from Lamer's i n that it p u t s the e m p h a s i s on "the significance of these activities to natives rather t h a n o n the activities  themselves."  41  J u s t i c e M c L a c h l i n dissented from the majority decision, but she was also uncomfortable with L ' H e u r e u x - D u b e ' s a s s e s s m e n t of the potential scope of Section 35. M c L a c h l i n argues that aboriginal rights m u s t be d i s t i n g u i s h e d from the exercise of those rights. She writes that "rights are generally cast i n broad, general terms. T h e y r e m a i n constant over the centuries. T h e exercise of rights, on the other h a n d , m a y take m a n y forms a n d vary from place to place a n d from time to time."  42  The  danger i n confusing the two, a c c o r d i n g to M c L a c h l i n , is that if one treats a m o d e r n practice as the right itself, one m a y not be able to find a continuity with a pre-contact practice as is required by Lamer's "integral to a distinctive culture" test. M c L a c h l i n argues that if one m a k e s the distinction that she is suggesting, "the question then becomes whether the m o d e r n practice at issue m a y be characterized as a n exercise of the right" that is being c l a i m e d .  43  M c L a c h l i n also argues that the C o u r t need not always attempt to formulate original definitions of aboriginal rights. She argues that while aboriginal rights were not constitutionally protected prior to 1982, some were still generally observed t h r o u g h legislation, regulation, or mere convention prior to the enactment of the Constitution Act 1982.  McLachlin  writes that the C o u r t ought to a s k whether the activity i n question "may be seen as the exercise of a right w h i c h h a s either been recognized or w h i c h so resembles a recognized right that it s h o u l d , by extension of the law, be so recognized."  44  A final, but very significant point on w h i c h both M c L a c h l i n a n d L ' H e u r e u x - D u b e dissented from the C h i e f Justice's r u l i n g was the 40 41 42 43 44  Van der Peet. p.595. Ibid, p.593. Ibid, p.631. Ibid, p.631-2. Ibid, p.633.  44 appropriateness of i m p o s i n g the date of first contact a s the timeframe for identifying aboriginal rights. L a m e r writes for the majority of the C o u r t that i n order for a n aboriginal activity to qualify as a n aboriginal right, it m u s t have been integral to that aboriginal society "prior to contact with the E u r o p e a n s . "  45  L ' H e u r e u x - D u b e argues that to impose a cut-off date is  to adopt precisely the frozen rights a p p r o a c h that the C o u r t rejected i n Sparrow.  C o n s e q u e n t l y , she argues that the C h i e f Justice's a p p r o a c h  s h o u l d be rejected i n favour of a f o r m u l a that w o u l d recognize aboriginal rights a s being the practices that have been integral to the aboriginal society i n question for "a s u b s t a n t i a l a n d c o n t i n u o u s period of time"  46  M c L a c h l i n agrees that the C h i e f Justice's a p p r o a c h is flawed for its imposition of a n arbitrary cut-off date o n the definition of aboriginal rights, b u t she also critiques L ' H e u r e u x - D u b e ' s p r o p o s a l for being too vague to be of u s e i n defining those rights. M c L a c h l i n argues that aboriginal activities s h o u l d qualify a s aboriginal rights where they are "rooted i n the historical laws or c u s t o m s of the people," a n d where "there is c o n t i n u i t y between the historic practice a n d the right asserted."  47  Smokehouse andGladstone T h e Smokehouse  decision is essentially a reiteration of the views  that the J u s t i c e s expressed i n Van der Peet. T h e two decisions are virtually identical. T h e conviction of the N . T . C . S m o k e h o u s e  L.T.D.  c o m p a n y w a s u p h e l d by the C o u r t . A g a i n , L a m e r wrote the majority decision, a n d again, M c L a c h l i n a n d L ' H e u r e u x - D u b e wrote d i s s e n t i n g opinions. W r i t i n g for the majority, a n d applying the "integral to a distinctive culture" test, L a m e r d i s m i s s e s "the appellant's c l a i m that, prior to contact, the exchange of fish for money or other goods w a s a n integral part of the distinctive cultures of the native b a n d s involved." A s i n Van der Peet, L a m e r finds that "the exchange of fish incidental to social a n d c e r e m o n i a l occasions was not, itself, a sufficiently central, significant or defining feature of these societies to be recognized as a n aboriginal 45 46 47  Van der Peet. p.548. Ibid, p.601. Ibid, p.635.  45 right u n d e r s.35(l) of the Constitution Act, 1982."  4 8  In h e r dissenting opinion, L ' H e u r e u x - D u b e again challenges Lamer's "integral to a distinctive culture" test for its tendency towards the "frozen rights" a p p r o a c h . S h e reiterates h e r view that "the definition of aboriginal rights s h o u l d refer to the notion of integral part of distinctive aboriginal culture," a n d s h o u l d "permit the evolution of aboriginal rights over time." L ' H e u r e u x - D u b e argues that "case law o n treaty a n d aboriginal rights relating to trade supports the m a k i n g of a distinction between the sale, trade a n d barter of fish for, o n the one h a n d , livelihood, support a n d sustenance p u r p o s e s a n d for, o n the other, purely c o m m e r c i a l purposes." T h i s distinction suggests that aboriginal rights s h o u l d be viewed i n terms of a c o n t i n u u m .  L ' H e u r e u x - D u b e argues that the trial judge's failure to  4 9  take the notion of a c o n t i n u u m into account i n p a s s i n g j u d g m e n t represented a significant error o n h i s part, a n d that i n fact, the case w a s made for the existence of the aboriginal right to sell, trade or barter fish for livelihood, support a n d sustenance purposes. In h e r dissenting opinion, M c L a c h l i n c o n c u r s with L'HeureuxDube's assertion that aboriginal rights s h o u l d be c o n s t r u e d as evolving over time a n d that the case w a s made by the appellant for the existence of the aboriginal right i n question. M c L a c h l i n argues that the aboriginal right w a s infringed u p o n , so she proceeds to apply the test for justifying a n infringement u p o n a s.35(l) right that w a s established i n Sparrow. M c L a c h l i n c o n c l u d e s that the infringement of the aboriginal right to sell fish for s u s t e n a n c e w a s not justified because "the C r o w n d i d not establish that the denial of the aboriginal right to sell fish for s u s t e n a n c e was required for conservation purposes or for other p u r p o s e s related to the c o n t i n u e d a n d responsible exploitation of the resource." Moreover, argues M c L a c h l i n , "the total denial conflicted with the fiduciary d u t y of the C r o w n to permit the exercise of a constitutionally guaranteed aboriginal right."  50  T h e last of the three decisions o n c o m m e r c i a l aboriginal fishing 48  Smokehouse, p.674.  4 9  Ibid, p.675.  5 0  Ibid, p.677-8  46 rights is Gladstone. T h i s decision stands i n stark contrast to the first two because the C o u r t r u l e d that the Heiltsuk do have a n aboriginal right to trade h e r r i n g s p a w n o n kelp o n a c o m m e r c i a l basis. T h e decision w a s again a majority decision. T h i s time, C h i e f J u s t i c e L a m e r wrote the decision o n behalf of J u s t i c e s S o p i n k a , G o n t h i e r , Cory, Iacobucci, a n d Major. J u s t i c e s L ' H e u r e u x - D u b e a n d M c L a c h l i n wrote c o n c u r r i n g o p i n i o n s . O n l y J u s t i c e L a Forest dissented. In a p p l y i n g the "integral to a distinctive culture" test, L a m e r f o u n d that the trade of h e r r i n g s p a w n o n kelp o n a c o m m e r c i a l basis h a d been a n integral aspect of H e i l t s u k c u l t u r e prior to contact, a n d that it c o n t i n u e d to be so to this day. In h e r c o n c u r r i n g o p i n i o n , M c L a c h l i n writes that "evidence of a n established trading network w a s clear i n this case. T h e H e i l t s u k derived their sustenance from trade derived from h e r r i n g s p a w n o n kelp; they relied o n trade to s u p p l y t h e m with the necessaries of life, p r i n c i p a l l y other food products."  51  In h i s dissenting o p i n i o n , L a Forest argues that the H e i l t s u k h a d a limited aboriginal right to trade h e r r i n g s p a w n o n kelp. H e writes that "these activities h a d special significance to the H e i l t s u k i n that the H e i l t s u k engaged i n s u c h trading activities o n the basis that they v a l u e d s h a r i n g resources with other b a n d s w h o d i d not have access to that resource."  52  L a Forest argues that a n y trade i n h e r r i n g s p a w n o n kelp that  does not fit this pattern of s h a r i n g the resource with those w h o do not have a c c e s s to it c a n not be deemed to be the exercise of a n aboriginal right. S u c h trade w o u l d l a c k the required significance to H e i l t s u k c u l t u r e . T h e d i s c u s s i o n of whether or not the Heiltsuk's trade i n h e r r i n g s p a w n o n kelp constituted a section 35 aboriginal right is followed b y the application of the tests developed i n Sparrow for extinguishment a n d the justification of infringements of s. 35(1) rights. T h e majority of the C o u r t found that the aboriginal right h a d not been extinguished, a n d that government licensing d i d infringe u p o n it; however, the J u s t i c e s felt that there w a s not e n o u g h evidence before the C o u r t for a determination to be m a d e o n the justification of the infringement. L a Forest dissented from Gladstone, p.726. Ibid, p.726. 51  52  47 the majority, a r g u i n g that the aboriginal right h a d been extinguished prior to 1982. H e writes that "the C r o w n specifically chose to translate aboriginal practices into statutory rights a n d expressly decided to limit the scope of these rights. Aboriginal rights relating to practices that were specifically e x c l u d e d were thereby extinguished." Inconsistencies  i n the Court's  Decisions  T h e S u p r e m e Court's decisions i n Sparrow, Smokehouse,  a n d Gladstone  Section 35 of the Constitution  53  Van der Peet,  have set parameters for the interpretation of Act 1982. B u t there are several  inconsistencies i n the Court's decisions. T h e five major areas of i n c o n s i s t e n c y are: the rationale b e h i n d the c o n s t i t u t i o n a l protection of aboriginal rights, the Court's s u p p o s e d rejection of the "frozen rights" a p p r o a c h , the question of whether aboriginal rights are inherent or contingent rights, the relationship between aboriginal rights to a resource a n d c o m m e r c i a l interests i n that resource, a n d the Court's a d o p t i o n of the a b o r i g i n a l perspective i n its definitions of aboriginal rights. C h i e f J u s t i c e Lamer's decisions give inconsistent rationales for the Section 35 protection of aboriginal rights. In Van der Peet, L a m e r writes that the "substantive rights w h i c h fall within this provision m u s t be defined i n light of this purpose:... the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown, added]"  54  [emphasis  Nine pages later, the C h i e f J u s t i c e writes that a n y test for  aboriginal rights m u s t "fulfill the p u r p o s e u n d e r l y i n g s. 35(1) - i.e., the protection a n d reconciliation of the interests w h i c h arise from the fact that prior to the arrival of Europeans  i n North A m e r i c a aboriginal peoples  lived o n the l a n d i n distinctive societies, [emphasis added]"  55  Six pages  later, the C h i e f J u s t i c e r e t u r n s to h i s earlier assertion that the p u r p o s e u n d e r l y i n g s. 35(1) is the reconciliation of the "pre-existing aboriginal societies with the assertion added]" 53  54  55  56  56  In Gladstone,  Gladstone, p.728. Van der Peet. p.539. Ibid, p.548. Ibid, p.554.  of Crown sovereignty over C a n a d a , [emphasis  L a m e r writes that "aboriginal rights are a necessary  48 part of the reconciliation of aboriginal societies with the broader political community of which they are a part, [emphasis added]" T h i s third rationale 57  for the protection of aboriginal rights is reiterated b y the C h i e f J u s t i c e o n the following page, where he writes that aboriginal rights are protected a s part of the "reconciliation of aboriginal societies with the rest of Canadian society, [emphasis added]"  58  T h e differences between "the sovereignty of the Crown," "the arrival of E u r o p e a n s , " a n d "the rest of C a n a d i a n society" are not merely matters of semantics. L a m e r h a s enumerated three very distinct, a n d very different rationales for the Section 35 protection of aboriginal rights. B u t the C h i e f J u s t i c e h a s never wavered i n h i s assertion that i n order to qualify a s a n aboriginal right, a n aboriginal practice, c u s t o m , or tradition m u s t have continuity with a practice, c u s t o m , or tradition "that existed prior to contact."  59  T h e "prior to contact" requirement w o u l d be logical if it  were well established that the p u r p o s e u n d e r l y i n g the protection of aboriginal rights w a s the reconciliation of the pre-existing aboriginal societies with the arrival of the E u r o p e a n settlers. B u t if the rationale u n d e r l y i n g s. 35(1) is the reconciliation of pre-existing aboriginal societies with the assertion of C r o w n sovereignty, then p r e s u m a b l y , the date of sovereignty s h o u l d be the timeframe for defining aboriginal rights. T h e C h i e f J u s t i c e attempts to clarify h i s position i n a passage of the Van der Peet decision. It is to the pre-contact period that the c o u r t s m u s t look i n identifying aboriginal rights. T h e fact that the doctrine of aboriginal rights functions to reconcile the existence of pre-existing aboriginal societies with the sovereignty of the C r o w n does not alter this position. A l t h o u g h it is the sovereignty of the C r o w n that the pre-existing aboriginal societies are being reconciled with, it is to those pre-existing societies that the court m u s t look i n defining aboriginal rights. It is not the fact that aboriginal societies existed prior to C r o w n sovereignty that is relevant; it is the fact 57  Gladstone, p.730.  M  Ibid, p.731.  59  Van der Peet. p.554.  49 that they existed prior to the arrival of E u r o p e a n s in North A m e r i c a . A s s u c h , the relevant time period is the period prior to the arrival of the E u r o p e a n s , not the period prior to the assertion of sovereignty by the C r o w n . 6 0  It w o u l d seem from this passage that the inconsistency i n Lamer's decisions is d u e i n part to some c l u m s y sentence c o n s t r u c t i o n o n h i s part. In the preceding passage, the C h i e f J u s t i c e writes that "it is the sovereignty of the C r o w n that the pre-existing aboriginal societies are being reconciled with." In this sentence, "pre-existing" c a n only m e a n i n existence prior to the assertion of C r o w n sovereignty. B u t it w o u l d seem from the rest of the passage, that the C h i e f J u s t i c e is really a r g u i n g that the rationale b e h i n d s. 35(1) is the reconciliation of aboriginal societies that existed prior to contact with E u r o p e a n s , with the assertion of sovereignty by the C r o w n . H i s argument in Gladstone, that the p u r p o s e of s. 35(1) is the reconciliation of aboriginal societies with the rest of C a n a d i a n society is a different matter all together. B u t even after it h a s been clarified, the C h i e f Justice's argument in Van der Peet, r e m a i n s confusing. T h e w o r d i n g of section 35 seems to contradict the C h i e f Justice's choice of the date of contact as the timeframe for identifying aboriginal rights. Section 35(2) states that aboriginal people are defined i n the C o n s t i t u t i o n as i n c l u d i n g the "Indians, Inuit a n d Metis peoples of Canada."  61  H o n . M r . J u s t i c e Lambert writes that "the i n c l u s i o n of the  Metis people i n the coverage of s. 35(2) indicated that the relevant time for e x a m i n i n g rights to see whether they are aboriginal c a n n o t be the time of contact because there were no Metis at the time of contact a n d m u s t therefore be the time of sovereignty."  62  In her dissenting o p i n i o n i n Van  der Peet, L ' H e u r e u x - D u b e writes that "obviously, there were n o Metis prior to contact with E u r o p e a n s as the Metis are the result of intermarriage 60 81 62  Van der Peet. p.555. Archer, Keith, et. al. supra note 6. Lambert, Hon. Mr. justice Douglas. "Van der Peet and Delgamuukw. Ten Unresolved Issues." in U.B.C. Law Review, (1998 Vol. 32:2). PP.249-270. p.268.  50 between natives a n d E u r o p e a n s . . . A s a result, a c c o r d i n g to the text of the C o n s t i t u t i o n of C a n a d a , it m u s t be possible for aboriginal rights to arise after B r i t i s h  sovereignty, [emphasis added]"  63  Neither L a m b e r t , n o r L ' H e u r e u x - D u b e acknowledge the possibility that s. 35(1) simply does not protect a n y aboriginal rights for Metis peoples. T h i s possibility w o u l d be consistent with the C h i e f Justice's imposition of a cut-off date at contact. B u t L a m e r does not appear to be m a k i n g this a r g u m e n t either. In defense of his position, the C h i e f J u s t i c e writes that "the m a n n e r i n w h i c h the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the m a n n e r i n w h i c h the aboriginal rights of the Metis are defined."  64  Lamer's adoption of the m o m e n t of contact as the relevant timeframe for identifying aboriginal rights forces the h i m to adopt a static view of aboriginal cultures. L a m e r writes i n  Van der Peet that s. 35(1)  s h o u l d be interpreted i n s u c h a way as to identify the "practices, traditions a n d c u s t o m s central to  the aboriginal societies that existed in  North America prior to contact with the Europeans, [emphasis added]" O n the 65  next page, the C h i e f J u s t i c e re-phrases this assertion slightly a n d writes that "in order to be a n aboriginal right a n activity m u s t be a n element of a practice, c u s t o m or tradition integral to the  distinctive culture of the  aboriginal group claiming theright,[emphasis added]" B e c a u s e he h a s 66  stipulated that contact is the appropriate timeframe for identifying aboriginal rights, L a m e r m u s t treat the p h r a s e s "central to the aboriginal societies that existed prior to contact," a n d "distinctive c u l t u r e of the aboriginal group c l a i m i n g the right" as being s y n o n y m o u s with one another. B u t i n so doing, the C h i e f J u s t i c e implicitly argues that it is only the c u s t o m s , traditions, a n d practices that existed prior to contact that m a k e the c u l t u r e s of the aboriginal groups that exist today distinctive. L ' H e u r e u x - D u b e challenges the C h i e f justice's position i n h e r dissenting o p i n i o n i n Van der Peet. She writes that "holding that what is 63 84 65 66  Van der Peet. p.598. Ibid, p.558. Ibid, p.548. Ibid, p.549.  51 c o m m o n to both aboriginal a n d non-aboriginal c u l t u r e m u s t necessarily be n o n - a b o r i g i n a l a n d t h u s not aboriginal for the p u r p o s e s of s. 35(1) is, to say the least, a n overly majoritarian approach." T h i s a p p r o a c h , argues L ' H e u r e u x - D u b e "literally a m o u n t s to defining aboriginal c u l t u r e a n d aboriginal rights as that w h i c h is left over after features of n o n - a b o r i g i n a l c u l t u r e s have been t a k e n away."  67  L ' H e u r e u x - D u b e suggests that the  a p p r o a c h adopted by the C h i e f J u s t i c e "implies that aboriginal c u l t u r e was crystallized i n some sort of aboriginal time prior to the arrival of Europeans."  68  C h i e f J u s t i c e L a m e r is correct to suggest that the pre-contact practices, traditions, a n d c u s t o m s are relevant to the distinctiveness of aboriginal c u l t u r e s today. B u t he is w r o n g i n suggesting that the precontact practices represent the full extent of the distinctiveness of m o d e r n aboriginal cultures. T h e flaw i n the C h i e f Justice's a r g u m e n t w o u l d seem to stem from his u n d e r s t a n d i n g of modernity. C h a r l e s T a y l o r h a s argued that we s h o u l d t h i n k of modernity i n the p l u r a l rather t h a n i n the s i n g u l a r . T h e r e are, therefore, countless modernities, not j u s t o n e .  69  T h e C h i e f J u s t i c e argues that "activities w h i c h become c e n t r a l or significant because of the influence of E u r o p e a n culture cannot be said to be aboriginal rights."  70  T h e a s s u m p t i o n u n d e r l y i n g this a r g u m e n t is that  a n y adoption of E u r o p e a n c u s t o m s , traditions, or practices w o u l d necessarily m a k e aboriginal peoples less aboriginal, a n d more E u r o p e a n . T h i s a s s u m p t i o n stems from, what Taylor calls, the u n d e r s t a n d i n g of modernity i n the singular. T h e only logical c o n c l u s i o n of this view of m o d e r n i t y is that eventually, because people are now exposed to c u l t u r e s from all over the world, we will all become exactly the same. A l l c u l t u r a l differences will disappear. T h e a s s u m p t i o n of a single modernity denies the fact that different c u l t u r e s start from different places. Is it logical to suggest that two people Van der Peet. p.592. Ibid, p.596. 1 heard Charles Taylor make these arguments at a lecture that he gave at Green College at the University of British Columbia in the Spring of 1999. Van der Peet. p.570.  67  68 89  70  52 will w i n d u p i n exactly the same place if they each take a single stride of the same length? It is if the two people start from exactly the same place a n d b o t h take the stride i n the same direction. B u t u n d e r a n y other c i r c u m s t a n c e s , the assertion that the two people will e n d u p i n the same place is simply erroneous. T h e same c a n be said of c u l t u r e s . T h e c u l t u r e s of the aboriginal peoples who lived here a n d those of the E u r o p e a n settlers who arrived later were very different at the time of first contact. So o n what basis c a n the C h i e f J u s t i c e argue that any aboriginal activity that arose as a result of the contact between aboriginal a n d E u r o p e a n c u l t u r e s c a n not be integral to a distinctive aboriginal c u l t u r e ? He c a n only do so by adopting the single modernity theory, a n d by a r g u i n g that aboriginal c u l t u r e s existed i n original pristine states prior to the arrival of E u r o p e a n s . A n y m i x i n g of the different cultures w o u l d then represent a n erosion of the genuine aboriginal cultures. T h e p r o b l e m with this a p p r o a c h is that it is completely at odds with the S u p r e m e Court's dictate i n Sparrow that aboriginal rights "must be interpreted flexibly so a s to permit their evolution over time."  71  A n o t h e r inconsistency i n the S u p r e m e Court's doctrine of a b o r i g i n a l rights lies i n the Court's wavering between aboriginal rights as inherent rights, a n d as contingent rights. These two c o m p e t i n g theories of aboriginal rights are detailed by M i c h a e l A s c h a n d Patrick M a c k l e m . T h e contingent rights a p p r o a c h recognizes "aboriginal rights contingent u p o n formal recognition by legislative or executive authority or explicit constitutional amendment." T h e inherent rights a p p r o a c h views "aboriginal rights as existing independently of the legal creation of C a n a d a a n d not requiring explicit legislative or executive recognition for their existence."  72  In Van der Peet, Lamer argues that aboriginal rights "arise from the fact that aboriginal people are aboriginal." He seems to endorse the 73  inherent rights a p p r o a c h . B u t A s c h a n d M a c k l e m argue that the S u p r e m e 71 72  73  Sparrow (reprinted in Kulchyski). p.220. Asch, Michael, and Patrick Macklem. "Aboriginal rights and Canadian Sovereignty: An essay on R. v. Sparrow." in Alberta Law Review, (1991 Vol. XXIX No. 2). PP.498-517. p.500. Van der Peet. p.534.  53 C o u r t took two important steps away from the inherent rights a p p r o a c h a n d towards the contingent rights a p p r o a c h i n the Sparrow  decision.  Firstly the C o u r t "unquestioningly accepted that the B r i t i s h C r o w n , a n d thereafter C a n a d a , obtained territorial sovereignty over the l a n d m a s s that is now C a n a d a by the mere fact of E u r o p e a n settlement." to A s c h a n d M a c k l e m , this acceptance of C r o w n sovereignty  74  According  essentially  negates a n y c h a n c e that aboriginal sovereignty will be defined as a s.  35(1)  right. Secondly, the C o u r t r u l e d that rights w h i c h were regulated prior to 1982 r e m a i n existing rights; however, those rights that were expressly extinguished by the federal government prior to 1982 are not deemed to be existing. A s c h a n d M a c k l e m argue that "state action, i n other words, defines the parameters of s. 35(1) rights, w h i c h is a central tenet of the contingent theory of aboriginal rights."  75  A s far as A s c h a n d M a c k l e m are concerned, the Court's u n q u e s t i o n i n g acceptance of C r o w n sovereignty is the more serious of these two steps away from the inherent rights a p p r o a c h . T h e y cite B r i a n Slattery i n e n u m e r a t i n g the four legal principles u p o n w h i c h states have traditionally relied to justify their sovereignty over new territories. T h e s e four principles are: "(1) conquest or the military subjugation of a territory... (2) cession or formal transfer of a territory from one independent political u n i t to another; (3) annexation... a n d (4) the settlement or a c q u i s i t i o n of territory that was previously u n o c c u p i e d or is not recognized as belonging to another political entity." M a c k l e m argue that the C o u r t i n Sparrow  76  Asch and  relied on settlement a s a  justification for C r o w n sovereignty. B u t given that the territory was i n h a b i t e d , the justification is very difficult to s u s t a i n . T h e y suggest that the a s s u m p t i o n u n d e r l y i n g the use of the settlement thesis as a justification for C r o w n sovereignty over C a n a d a was that "in contrast to the settlers, the original i n h a b i t a n t s were either too primitive to p o s s e s s sovereignty or, at the least, possessed it i n s u c h a r u d i m e n t a r y form that its existence d i d not deserve to be respected by the more a d v a n c e d settler 74  75  7 6  Asch and Macklem. "Aboriginal Rights and Canadian Sovereignty." p.507. Ibid, p.508. Ibid, p.511.  54 society."  77  In other words, the acceptance of C r o w n sovereignty stems from  the Court's belief i n the superiority of E u r o p e a n culture. In h i s article "Discarding the R o s e - C o l o u r e d Glasses: A C o m m e n t a r y o n A s c h a n d Macklem," T h o m a s Issak strongly critiques the o p i n i o n s expressed by A s c h a n d M a c k l e m . Issak agrees that the settlement thesis was i n a l l likelihood originally rooted i n a belief i n the superiority of E u r o p e a n nations. B u t he argues that the thesis adopted by the S u p r e m e C o u r t is one w h i c h "supports C a n a d i a n sovereignty as a matter of political a n d legal reality a n d not one w h i c h necessarily relegates aboriginal people to a s u b s t a n d a r d social status."  78  Issak further  argues that Section 52 of the Constitution Act 1982 leaves the S u p r e m e C o u r t no discretion i n determining the s u p r e m a c y of the C a n a d i a n Constitution.  79  T h e process of recognizing aboriginal rights m u s t include a recognition of the reality that is m o d e r n day C a n a d a . B u t questioning the b a s i s for the Court's acceptance of C r o w n sovereignty, as A s c h a n d M a c k l e m do, h a s merit. T h e c i r c u m s t a n c e s u n d e r w h i c h the B r i t i s h C r o w n , a n d thereafter the C a n a d i a n government, came to have j u r i s d i c t i o n over the aboriginal peoples of C a n a d a is certainly relevant to a d i s c u s s i o n of aboriginal rights. B u t I t h i n k that if A s c h a n d M a c k l e m were to take into a c c o u n t the directive i n Sparrow that the aboriginal perspective be incorporated into the definition of s. 35(1) rights, they w o u l d find that their focus on aboriginal sovereignty is p e r h a p s m i s p l a c e d . In his address to the B r i t i s h C o l u m b i a Legislature following the signing of the Nisga'a  Final Agreement,  C h i e f J o s e p h G o s n e l l said that the  s u c c e s s of the treaty was the fact that "the Nisga'a people will j o i n C a n a d a a n d B r i t i s h C o l u m b i a as free citizens - full a n d e q u a l participants in the social, political, a n d economic life of this province, of this country." 77  78  80  T h e majority of aboriginal people i n C a n a d a share C h i e f  Asch and Macklem. "Aboriginal Rights and Canadian Sovereignty." p.511. Issak, Thomas. "Discarding the Rose-Coloured Glasses: A Commentary on Asch and Macklem." in Alberta Law Review, (1992 Vol. XXX No. 2). PP. 708-12. p. 709.  79 80  Ibid, p.709. Gosnell, Joseph. "Speech to the British Columbia Legislature: December 2, 1998." in B.C Studies: The British Columbian Quarterly, (Winter 1998-9 Number 120). PP. 5-10. p.5.  55 Gosnell's a s p i r a t i o n s for the future. A l t h o u g h there are u n d o u b t e d l y some aboriginal peoples who desire sovereignty, it is m y belief that the vast majority w i s h to become full a n d equal participants i n C a n a d i a n society. O n e of the factors that h a s i m p e d e d m a n y aboriginal peoples i n B r i t i s h C o l u m b i a i n becoming full a n d free participants i n C a n a d i a n society is the fact that, while they never lost wars, sold their l a n d , gave it away, or signed treaties, the C r o w n h a s a s s u m e d sovereignty over their l a n d s a n d over them. None of the four legal principles e n u m e r a t e d b y B r i a n Slattery as justifications for states a s s u m i n g sovereignty over new territories applies to B r i t i s h C o l u m b i a . B u t C r o w n sovereignty is a political reality i n C a n a d a , a n d whatever the objections to it, C r o w n sovereignty is not a b o u t to be lifted i n the foreseeable future. So while aboriginal sovereignty is probably untenable, A s c h a n d M a c k l e m ' s a r g u m e n t does establish the basis for a strong c l a i m to aboriginal selfgovernment w i t h i n C a n a d a . T h e fourth a r e a of inconsistency i n the Court's decisions relates to the requirement i n Sparrow  that the aboriginal perspective be considered  i n the definition of aboriginal rights. It w o u l d appear that the aboriginal perspective h a s at times, been completely ignored by the C o u r t . In Sparrow,  the C o u r t separated aboriginal fishing into two b r o a d categories:  fishing for food, social a n d ceremonial p u r p o s e s , a n d fishing for c o m m e r c i a l p u r p o s e s . R o s a n n e Kyle argues that i n m a k i n g this distinction between the two types of fishing, "the C o u r t was viewing the right as it h a d been defined by regulation a n d not as it h a d been traditionally exercised by aboriginal fishers prior to regulation." Kyle writes that "by characterizing the right i n this m a n n e r , the C o u r t ignored its own rule of interpretation that the aboriginal perspective was to be considered, a n d that the rights not be viewed as constitutionalized i n their regulated form."  81  A n o t h e r example of the Court's ignoring the aboriginal perspective is evidenced by Lamer's statement i n Van der Peet that the trade engaged i n between the Sto:lo a n d the 81  Kyle, Rosanne. "Aboriginal Fishing Rights: The Supreme Court of Canada in the Post-Sparrow Era." in U.B.C. Law Review. (1997 Vol.31 No.2). PP.293-316. p.298, note 35.  56 H u d s o n ' s B a y C o m p a n y , while certainly of significance to the Sto:lo society of the time, w a s found b y the trial judge to be qualitatively different from that w h i c h w a s typical of the Sto:lo culture prior to contact. A s s u c h , it does not provide a n evidentiary basis for h o l d i n g that the exchange of s a l m o n w a s a n integral part of Sto:lo culture. 82  A g a i n , it w o u l d seem that the C o u r t ignored its o w n r u l i n g i n Sparrow. A s C h r i s T e n n a n t writes "the C o u r t never relinquishes its role as a social critic of aboriginal society."  83  A final a r e a of inconsistency relates to the C o u r t ' s treatment of the relationship between the exercise of a n aboriginal right to a resource a n d the exercise of a c o m m e r c i a l , or other interest i n the resource. In h e r dissenting opinion i n Van der Peet, M c L a c h l i n writes that T h e C h i e f Justice's p r o p o s a l comes down to this. In certain c i r c u m s t a n c e s , aboriginals m a y be required to share their fishing rights with n o n aboriginals i n order to effect a reconciliation of aboriginal a n d n o n - a b o r i g i n a l interests. In other words, the C r o w n m a y convey a portion of a n aboriginal fishing right to others, not by treaty o r with the consent of the aboriginal people, b u t b y its o w n unilateral act... How, without a m e n d i n g the C o n s t i t u t i o n c a n the C r o w n c u t d o w n a n aboriginal right?... T h e rights themselves c a n be d i m i n i s h e d only t h r o u g h treaty a n d constitutional a m e n d m e n t . T o reallocate the benefit of the right from aboriginals to non-aboriginals, w o u l d be to d i m i n i s h the substance of the right that s. 35(1) of the Constitution Act 1982 guarantees to the aboriginal people. T h i s no court c a n d o . 84  T h e C h i e f Justice's p r o p o s a l sets a very dangerous precedent. Not only does it seem to be u n c o n s t i t u t i o n a l , b u t , as R o s a n n e Kyle writes, "it effectively neutralizes the e n t r e n c h m e n t of A b o r i g i n a l rights i n the C o n s t i t u t i o n b y elevating other interests i n C a n a d a to the same level as Van der Peet. p.570. Tennant, Chris. "Justification and Cultural Authority." p.386. Van der Peet. p.667.  82  83 84  57  c o n s t i t u t i o n a l A b o r i g i n a l rights."  85  In order for aboriginal rights to be at a l l  meaningful, they m u s t , a s the C o u r t ruled i n Sparrow,  86  be afforded a  higher priority t h a n is afforded to interests that have n o constitutional protection.  Conclu sion Nothing i n the S u p r e m e Court's doctrine of aboriginal rights precludes a n y aspect of the aboriginal fisheries policy that I proposed i n chapter two. T h e C o u r t h a s defined aboriginal rights as those practices, c u s t o m s , a n d traditions that are integral to distinctive aboriginal cultures. F o r most aboriginal peoples i n B r i t i s h C o l u m b i a , fisheries clearly meet this requirement. T h e C o u r t h a s r u l e d i n favour of a n aboriginal right to fish for food, social, a n d ceremonial purposes. A n d while the J u s t i c e s r u l e d against the existence of a n aboriginal right to fish for c o m m e r c i a l purposes i n both Van der Peet a n d Smokehouse, the Gladstone decision demonstrates that the recognition of s u c h rights by the C o u r t is possible. At the time of writing this thesis, J u s t i c e M c L a c h l i n h a s recently become the first w o m a n to be appointed to the position of C h i e f J u s t i c e of the S u p r e m e C o u r t . H e r replacement of L a m e r as the C h i e f J u s t i c e m a y have far r e a c h i n g implications for aboriginal rights i n C a n a d a . U n d e r C h i e f J u s t i c e L a m e r , several inconsistencies appeared i n the C o u r t ' s doctrine of aboriginal rights. T h e C o u r t wavered i n its depiction of the rationale u n d e r l y i n g Section 3 5 , i n its rejection of the "frozen rights" a p p r o a c h , i n a p p l y i n g the contingent a n d inherent theories of aboriginal rights, a n d i n adopting the aboriginal perspective. A t times, the C o u r t also granted to c o m m e r c i a l a n d recreational fishing interests a de facto c o n s t i t u t i o n a l status. J u s t i c e M c L a c h l i n dissented from the majority decision i n Van der Peet, the decision i n w h i c h most of these inconsistencies  emerged  because h e r view of aboriginal rights is noticeably different from Lamer's. T h e S u p r e m e C o u r t is b o u n d b y the precedents that it sets. It is extremely rare that the C o u r t will reverse one of its earlier d e c i s i o n s . Kyle. "Aboriginal Fishing Rights." p.310. Supra, note 21. Chief Justice McLachlin stated this during a Vancouver Institute lecture that she gave at the University of British Columbia on March 11, 2000.  85 86  87  87  58 B u t resolving the inconsistencies i n the Court's doctrine of aboriginal rights will not require the J u s t i c e s to reverse earlier rulings. T h e y will simply have to settle o n one of the approaches to defining a n d protecting aboriginal rights that have been i n c l u d e d i n their previous decisions. W i t h the change i n C h i e f J u s t i c e , it is possible that M c L a c h l i n ' s a p p r o a c h to aboriginal rights cases will be adopted by the ret of the C o u r t . S h o u l d the C o u r t adopt her a p p r o a c h , sovereignty, not contact, w o u l d become the relevant timeframe for identifying aboriginal rights. G i v e n C h i e f J u s t i c e M c L a c h l i n ' s o p i n i o n that the C o u r t s h o u l d d i s t i n g u i s h between the exercise of a right a n d the right itself, aboriginal practices that arose as the result of E u r o p e a n influences w o u l d not necessarily be p r e c l u d e d from qualifying as aboriginal rights as they were u n d e r C h i e f J u s t i c e L a m e r . T h i s change c o u l d have a noticeable impact on the Court's treatment of cases dealing with aboriginal rights to fish for c o m m e r c i a l purposes. It is worth noting that M c L a c h l i n argued to allow the appeals i n both Smokehouse a n d Van der Peet. C h i e f J u s t i c e M c L a c h l i n ' s preferred definition of aboriginal rights as those elements, integral to aboriginal cultures, that originated i n traditional aboriginal laws a n d c u s t o m s a n d that have continuity with historical practices, w o u l d also suggest that s h o u l d the C o u r t adopt her a p p r o a c h , it w o u l d focus o n the protection of aboriginal cultures, a n d not merely o n the protection of the practices, c u s t o m s , a n d traditions that are expressions of those cultures. T h e focus o n aboriginal laws w o u l d empower the C o u r t to define aboriginal rights as self-government rights as opposed to the a p p r o a c h that it h a s taken for fishing rights of defining aboriginal rights as areas where the federal government's authority to legislate is limited. M c L a c h l i n ' s definition of aboriginal rights w o u l d also avoid the pit-falls of the "frozen rights" a p p r o a c h , a n d embrace the C o u r t ' s earlier r u l i n g from Sparrow that aboriginal rights be seen as evolving. In order to fully implement M c L a c h l i n ' s a p p r o a c h to defining aboriginal rights, the C o u r t w o u l d have to seriously consider the aboriginal perspective o n the rights being claimed. T h e doctrine of aboriginal rights that the C o u r t w o u l d develop  59 s h o u l d it adopt C h i e f justice M c L a c h l i n ' s a p p r o a c h to defining a n d protecting aboriginal rights w o u l d be more consistent with the theoretical propositions that I developed in chapter one t h a n is the doctrine of aboriginal rights that the C o u r t h a s p r o d u c e d u n d e r the leadership of C h i e f J u s t i c e Lamer. M c L a c h l i n ' s a p p r o a c h to protecting aboriginal rights e m p h a s i z e s the protection of aboriginal c u l t u r e s a n d traditional laws to a m u c h greater extent t h a n does Lamer's. T h i s e m p h a s i s w o u l d suggest that M c L a c h l i n ' s doctrine of aboriginal rights w o u l d s u p p o r t the adoption of a n aboriginal fisheries policy similar to the one that I proposed i n chapter two. While there is n o t h i n g i n the Court's c u r r e n t doctrine of aboriginal rights that precludes the adoption of the fisheries  management  regime that the policy w o u l d create, w h i c h is in effect a form of selfgovernment, M c L a c h l i n ' s doctrine of aboriginal rights w o u l d , i n all likelihood, m a n d a t e its adoption. In the next chapter, I will compare the federal government's A b o r i g i n a l Fisheries Strategy (AFS), the fisheries policy that the D e p a r t m e n t of Fisheries a n d O c e a n s developed i n the context of the S u p r e m e Court's c u r r e n t doctrine of aboriginal fishing rights, with the aboriginal fisheries policy that I proposed i n chapter two.  60  Chapter 4: The Aboriginal Fisheries Strategy  In 1992, the federal Department of Fisheries a n d O c e a n s (DFO) implemented its A b o r i g i n a l Fisheries Strategy (AFS), a seven-year p r o g r a m designed to p u t the requirements of the Sparrow decision into practice. T h e A F S consisted of a series of agreements between D F O a n d i n d i v i d u a l aboriginal c o m m u n i t i e s o n fisheries management. T h e majority of these agreements established Sparrotc-related allocations for food, social, a n d c e r e m o n i a l (FSC) fisheries, b u t three Pilot Sales agreements were also negotiated as a part of the program. A s well, C a b i n e t approved a t r a i n i n g a n d g u a r d i a n s h i p program, p r o g r a m m i n g for habitat restoration, a n d a grant to the Nisga'a for in-river a s s e s s m e n t a s a package with the other c o m p o n e n t s of the A F S . In this chapter, I will assess the degree to w h i c h 1  the A F S met the federal government's legal obligations to aboriginal peoples, a s well a s the congruency between the A F S a n d the aboriginal fisheries policy that I proposed i n chapter two. No single factor w a s responsible for precipitating the A F S . T h e S u p r e m e Court's Sparrow decision certainly forced the h a n d of D F O , b u t Sparrow w a s only one factor. Prior to the Sparrow decision, D F O h a d followed a policy of i s s u i n g Indian F o o d F i s h i n g Permits to i n d i v i d u a l s . B y r u l i n g that aboriginal rights are held c o m m u n a l l y , the C o u r t effectively rendered s u c h permits illegal. So D F O w a s left with very little choice b u t to develop a new regulatory system for the aboriginal fisheries that w o u l d reflect the c o m m u n a l aspect of aboriginal fishing rights. In the aftermath of Sparrow, the D e p a r t m e n t sought legal opinions o n its obligations from the Department of J u s t i c e . A c c o r d i n g to P a u l Kariya,  2  who w a s responsible for the initial implementation of the A F S i n  Kariya, Paul. Interview by author. Tape recording. University of British Columbia, January 27, 2000. And Department of Fisheries and Oceans, "Statement by John C. Crosbie Minister of Fisheries and Oceans: Action Plan in Response to the Report on the Fraser River Salmon Investigation." Speech, Vancouver, December 7, 1992. Paul Kariya was the Director of Native Affairs for the Department of Fisheries and Oceans in 1992 and 1993. He became the Director of Aboriginal Fisheries for the Pacific Region in 1993, and held that position through 1994. He is now the Chief Executive Officer of Fisheries Renewal B.C. 1  2  61 B . C , the legal o p i n i o n s interpreted the decision more narrowly t h a n d i d the lawyers for some aboriginal groups. While the C o u r t h a d declared M u s q u e a m F S C fishing to be a n aboriginal right, the legal opinions suggested that the right was still quite undefined a n d was not at all quantified. B u t rather t h a n allowing the undefined a n d u n q u a n t i f i e d n a t u r e of aboriginal fishing rights to stagnate the p o l i c y - m a k i n g process, D F O officials chose to give a quantifiable identity to the right i n order that they be able to develop effective fisheries m a n a g e m e n t  models.  3  T h e federal government also h a d several reasons for w a n t i n g to foster a n open a n d t r u s t i n g relationship with aboriginal peoples. Firstly, the Sparrow  decision was seen as the beginning of a trend. A s one official  stated, there was "a general feeling that u n d e r B r i a n D i c k s o n , Indians were w i n n i n g i n the S u p r e m e C o u r t . A n d they were going to c o n t i n u e to win."  4  Secondly, the government was extremely a n x i o u s to avoid a  repetition of the sort of violence that h a d erupted between M o h a w k warriors a n d the Q u e b e c provincial police force at O k a i n 1990. Finally, the government was p r e p a r i n g to negotiate treaties with aboriginal peoples i n B r i t i s h C o l u m b i a . A n d i n 1991, the governments of C a n a d a a n d B r i t i s h C o l u m b i a , along with the First Nations S u m m i t , d i d agree to a process for the negotiation of treaties. A final catalyst i n the development of the A F S was the fact that aboriginal fisheries i n B r i t i s h C o l u m b i a h a d become difficult to manage. In some areas, aboriginal people were disregarding the Indian F o o d F i s h i n g Permit system all together. E q u a l l y t r o u b l i n g was the i n c r e a s i n g sale of s a l m o n not caught u n d e r a c o m m u n a l license. B y the early 1990s, the sale of fish h a d become "almost uncontrollable in certain parts of the province." T h e r e was a feeling amongst D F O officials that if control of the 5  sale of fish were lost all together, the whole fabric of fish m a n a g e m e n t w o u l d fall apart because D F O w o u l d lose credibility with a l l of the major players i n the fisheries. A l l of these factors c u l m i n a t e d i n the 1992 l a u n c h Kariya, interview. Kariya, interview (Brian Dickson was the Chief Justice of the Supreme Court who wrote the decision). Kariya, interview. 3 4  5  Sparrow  62 of the A b o r i g i n a l Fisheries Strategy. T h e A F S was a seven-year p r o g r a m , but it was extended after the seven y e a r s elapsed. There was a built i n review of the policy that o c c u r r e d m i d - w a y t h r o u g h the seven years a n d gave C a b i n e t the option to d i s c o n t i n u e f u n d i n g for the A F S . B u t the policy was designed to last the full seven years. T h e A F S was conceived as a long term policy i n order that it e n d u r e at least one election, that it last longer t h a n one cycle of s a l m o n , a sockeye cycle being four years, a n d that the policy demonstrate that D F O ' s "commitment to aboriginals was sincere." In 1992, the B r i t i s h 6  C o l u m b i a c o m p o n e n t of the A F S consisted of more t h a n eighty agreements v a l u e d at $14 m i l l i o n . Some of the agreements were m u l t i - y e a r 7  agreements, others were single-year agreements that were renewed yearto-year. T h e majority of the A F S agreements were concerned w i t h m a n a g i n g the F S C fisheries. T h e Sparrow decision required that these fisheries be granted priority of access a h e a d of c o m m e r c i a l a n d recreational fisheries, a n d that F S C fisheries be limited only for valid reasons of conservation. A typical F S C Agreement set the quantity of fish to be caught, established the m a n a g e m e n t responsibilities of the aboriginal group a n d of D F O , set limitations o n the disposition of fish (such as p r e c l u d i n g the sale, barter, or trade of the fish), established the rules for licensing, a n d listed the types of gear that c o u l d be u s e d . T h e second major component of the A F S was the negotiation of three Pilot Sales agreements, one o n the lower F r a s e r River, one o n the west coast of V a n c o u v e r Island, a n d one o n the S k e e n a River. 5% of the provincial T o t a l Allowable C a t c h (TAC) was allocated to these c o m m e r c i a l fisheries. T h e c a t c h by aboriginal fishers in the A F S Pilot Sales was c o u n t e d separately from the c a t c h by aboriginal fishers who participated i n the regular c o m m e r c i a l fisheries. In the 1990s, aboriginal people c o m p r i s e d about 20% of the total participants i n the c o m m e r c i a l s a l m o n fishery. T h e y a c c o u n t e d for approximately 28% of the c o m m e r c i a l c a t c h i n 6  7  Kariya, interview. Department of Fisheries and Oceans, "Statement by John C. Crosbie Minister of Fisheries and Oceans," December 7, 1992.  63 pieces or 23% of the total landed value of s a l m o n a n n u a l l y .  8  So i n reality,  B . C . aboriginal c o m m e r c i a l fishers took substantially more t h a n the 5% of the T A C of s a l m o n that was allocated to Pilot Sales u n d e r the A F S ; however, the only areas of overlap between the A F S Pilot Sales a n d the c o m m e r c i a l fisheries were at the m o u t h of the F r a s e r River w i t h the T s a w w a s s e n a n d M u s q u e a m First N a t i o n s .  9  Pilot Sales was one of the most contentious elements to be i n c l u d e d i n the A F S . While the Sparrow  decision left D F O with very little  choice b u t to negotiate the F S C Agreements, the C o u r t d i d not establish a n aboriginal right to fish commercially. T h e i n c l u s i o n of the Pilot Sales agreements i n the A F S was motivated by several factors. Firstly, there was the government of C a n a d a ' s desire to make a genuine attempt at a d d r e s s i n g the c o n c e r n s of aboriginal peoples i n B . C . T h e aboriginal peoples i n the three areas that were selected for Pilot Sales Agreements h a d been the most vocal i n d e m a n d i n g c o m m e r c i a l fishing rights. T h e Van der Peet, Smokehouse,  a n d Sparrow cases originated i n these three areas.  Secondly, more b l a c k market s a l m o n were c o m i n g from the three areas i n question t h a n from a n y other areas of the province. Pilot Sales was seen, in part, as a step towards gaining control of the b l a c k m a r k e t sale of s a l m o n i n the p r o v i n c e .  10  B u t there were other reasons for choosing those three p a r t i c u l a r areas for Pilot Sales. O n the lower Fraser, aboriginal people were already c a t c h i n g large quantities of fish u n d e r the Indian Food F i s h i n g Permits. D F O officials felt that the increase that a Pilot Sales p r o g r a m w o u l d b r i n g about i n the aboriginal catch on the lower F r a s e r w o u l d not be significant. O n the west coast of V a n c o u v e r Island, D F O officials saw the N u u C h a h ' N u l t h T r i b a l C o u n c i l as a progressive group that h a d expressed interest i n developing co-management regimes with D F O . T h e creation of a Pilot Sales p r o g r a m was intended to be a show of goodwill that w o u l d facilitate a good w o r k i n g relationship between D F O a n d the N u u C h a h ' N u l t h . O n 8  9 10  Salmon and Aboriginal Fishing on the Lower Fraser on the internet at  http://web20.mindlink.net/stolo/salmon.htm#econ Kariya, interview. Ibid.  64 the S k e e n a , the T s i m s h i a n a n d G i t k s a n h a d a long history i n the m a r i n e fisheries. A c o m m e r c i a l fishery was piloted o n the S k e e n a i n advance of the treaty negotiations that were to come. T h e r e was also a hope o n the part of D F O officials that if Pilot Sales was successful o n the S k e e n a , c o m m e r c i a l fishing groups would accept similar aboriginal c o m m e r c i a l fisheries i n other parts of the p r o v i n c e .  11  D F O took several steps to minimize the displacement a n d d i s r u p t i o n that the new Pilot Sales p r o g r a m s w o u l d create i n the existing c o m m e r c i a l fisheries. While the allocations to the lower F r a s e r a n d V a n c o u v e r Island Pilot Sales came out of the T A C , the fisheries i n the S k e e n a Pilot Sales were all E S S R fisheries (Excess S a l m o n to S p a w n i n g Requirements). E S S R fisheries are not counted against the T A C that is established at the beginning of the season. T h e y are a part of the i n season m a n a g e m e n t that D F O fish mangers do every year. If, for example, there is a weak r u n of coho c o m i n g b a c k to the river co-mingled with a sockeye r u n , the sockeye openings m a y be curtailed i n order to protect the coho. T h e side effect of scaling b a c k the fisheries is the possibility of too m a n y sockeye spawning. So D F O fish mangers will open fisheries i n the river to allow the sockeye that are excess to the s p a w n i n g requirements for that p a r t i c u l a r r u n to be caught. T h e further u p - r i v e r that the fisheries take place, the easier it is to fish selectively a n d to target specific r u n s . T h e Pilot Sales Agreements on the S k e e n a stipulated that openings w o u l d be limited i n the event of there not being any excess fish, b u t some critics of the Pilot Sales agreements a c c u s e d D F O of purposely m a n a g i n g to create a n E S S R s u r p l u s .  12  D F O also e m b a r k e d on a program of b u y i n g c o m m e r c i a l licenses that were p u t u p for sale voluntarily by c o m m e r c i a l fishers a n d transferring t h e m to aboriginal groups. T h e theory was to find the capacity necessary for the Pilot Sales without expropriating c o m m e r c i a l licenses. In the first year of the p r o g r a m , D F O spent more t h a n $6 million on the v o l u n t a r y  11 12  Kariya, interview. Ibid.  65 license retirement p r o g r a m .  13  B u t there were some serious flaws with the  p r o g r a m a n d it failed to r e a c h its desired objective. T h e major p r o b l e m was that too little money was devoted to b u y i n g b a c k licenses. Also, m u c h of the money that was available was spent retiring, what P a u l K a r i y a calls "junk boats." T h e Department retired boats with very little c a t c h capacity, a n d so d i d not really take any capacity out of the fisheries.  14  T h e license retirement p r o g r a m elicited c r i t i c i s m from o p p o n e n t s of the A F S , but it was only one of several aspects of the policy that drew their ire. O n e of the most vocal opponents of the A F S , a n d indeed of aboriginal a n d treaty rights generally, throughout the 1990s i n B r i t i s h C o l u m b i a was Melvin H . S m i t h . Native Land?:  What Governments'  1 5  In 1995, S m i t h p u b l i s h e d Our Home  Aboriginal  Policy is Doing to Canada,  Or  in  w h i c h he expresses his belief that the C a n a d i a n government h a s capitulated to the aboriginal leadership. O n e very p r o m i n e n t chapter i n the book details Smith's critique of the A F S . T h i s chapter i n c l u d e s m a n y of the views c o m m o n l y expressed by other opponents of the A F S s u c h as the B . C . Fisheries Survival Coalition. O n e of the most c o m m o n criticisms of the A F S is that it creates r a c e - b a s e d fisheries. S m i t h writes that "the F r a s e r River, the largest s a l m o n p r o d u c i n g river i n the world, became the site for a n experiment with a racially-segregated c o m m e r c i a l fishery."  16  V e r y often, this a r g u m e n t  is buttressed with a reference to S o u t h Africa. S m i t h quotes G o r d o n G i b s o n as saying that "South Africa h a s taken definitive steps to s h u t t i n g d o w n its massive, evil a n d failed system of apartheid. Now m a y b e we i n C a n a d a s h o u l d stop expanding o u r own smaller, but equally failed a p a r t h e i d system relative to natives. We still assign political rights o n the b a s i s of race where it affects Indians."  17  T h e assertion that the A F S created race-based fisheries m a y be 13  14 15  16  ,7  Glavin, Terry. Dead Reckoning: Confronting the Crisis in Pacific Fisheries. Vancouver: Greystone,  1996. p.116. Kariya, interview. Glavin, Terry. This Ragged Place. Vancouver: New Star, 1996. p.86. Smith, Melvin H. Our Home or Native Land?: What Governments'Aboriginal Policy is Doing to  Canada. Toronto: Stoddart, 1995. p.207. Smith, Melvin H. Our Home or Native Land? p.250.  66 useful for inciting anger a n d fostering mistrust of aboriginal peoples, but it is a factual error. V e r y simply, the A F S does not create race-based fisheries. It is true that aboriginal people have a different s k i n colour t h a n do n o n - a b o r i g i n a l C a n a d i a n s , but this difference played no part i n the development of the A F S . Aboriginal fishing rights derive from the simple fact that aboriginal peoples are aboriginal. T h e difference i n s k i n colour is purely incidental. If aboriginal people i n C a n a d a h a d white s k i n , as the S a m i of Norway do, their entitlement to fishing rights w o u l d not be affected i n a n y way. A n d yet the race argument d i d galvanize a sector of the p o p u l a t i o n , particularly i n the c o m m e r c i a l fishing industry, i n opposition to the A F S . O n e p a r t i c u l a r issue that seemed to infuriate this sector was the i s s u e of "double-dipping." T h e A F S d i d not preclude aboriginal holders of regular c o m m e r c i a l fishing licenses from fishing i n A F S Pilot Sales fisheries  as  well. So it was possible for a n aboriginal fisher to fish one d a y d u r i n g a Pilot Sales opening, a n d then to go out the very next day, i n the same boat, to fish d u r i n g a c o m m e r c i a l opening. T h i s situation w a s seen to be unfair by m a n y of the opponents of the A F S . While access to the c o m m e r c i a l fisheries i n B r i t i s h C o l u m b i a is a privilege that is open to anybody, aboriginal F S C fishing is a right, protected b y the C a n a d i a n C o n s t i t u t i o n . So it was inevitable that "doubledipping" w o u l d become a source of conflict. B u t if the government were to start putting restrictions on who could or c o u l d not h o l d a c o m m e r c i a l license i n B . C . , the door w o u l d be opened to inconsistencies that w o u l d be potentially far more serious t h a n the limited cases of aboriginal fishers participating i n both c o m m e r c i a l a n d Pilot Sales fisheries. F o r D F O to recognize the fact that aboriginal fishing is a distinct right, it h a d to establish distinct times for aboriginal fisheries. It was w i t h i n the purview of i n d i v i d u a l aboriginal c o m m u n i t i e s to resolve the i s s u e of "doubledipping."  18  B u t w h e n they chose not to limit the opportunities for  aboriginal fishers to participate in both fisheries, there was n o t h i n g that D F O c o u l d do without either limiting access to the c o m m e r c i a l fisheries or 18  Kariya, interview.  67 ignoring the distinct constitutional nature of aboriginal fishing rights. A n o t h e r criticism that h a s been leveled at the A F S is that it c a u s e d the incidents of "missing fish" that o c c u r r e d i n the s u m m e r s of 1992 a n d 1993. Melvin S m i t h suggests that it was n o coincidence that the A F S was i m p l e m e n t e d i n the same year as s a l m o n began to "disappear" i n the F r a s e r River. H e cites statistics from the Pacific S a l m o n C o m m i s s i o n that suggest that as m a n y as 713,000 s a l m o n went "missing" i n the s u m m e r of 1992.  19  A D F O News Release dated A u g u s t 2 1 , 1992, confirms that  172,000 G a t e s C r e e k sockeye p a s s e d the fish e n u m e r a t i o n echo s o u n d e r at M i s s i o n , b u t only 16,500 of t h e m were counted p a s s i n g t h r o u g h the Seton D a m by the 17th of A u g u s t , 1992. A n d only 5,600 of the 166,000 F e n n e l l C r e e k sockeye that were counted at M i s s i o n that year were c o u n t e d again at a weir on F e n n e l l C r e e k .  20  In the F a l l , the government  hired D r . Peter Pearse a n d D r . Peter L a r k i n to investigate the "missing fish." T h e Pearce Report c o n c l u d e d that 4 8 2 , 0 0 0 sockeye s a l m o n that were estimated to be i n the Fraser River i n 1992 never m a d e it to their spawning grounds.  21  S m i t h implies that "wide-spread native p o a c h i n g a n d 24 h o u r per d a y unregulated fishing with no D F O enforcement presence" were to blame for the "missing fish."  2 2  B u t this c o n c l u s i o n is at odds with the  findings of the Pearce Report. D r . Pearce a n d D r . L a r k i n c o n c l u d e that We c a n n o t say who took these fish or how they were disposed of or where they went. Nor c a n we say whether they were caught illegally. We c a n only say with confidence that considerably more fish were taken t h a n estimated, a n d m a n y were sold illegally, insofar as official sales slips were not i s s u e d for t h e m . 23  While native p o a c h i n g was almost certainly a factor that led to the fish 19 20  21  22 23  Smith, Melvin H. Our Home or Native Land? p.208. Department of Fisheries and Oceans, "DFO Investigates Fraser River Shortfall." News Release NRPR-92-22E. August 21, 1992. Fraser River Salmon Investigation, "Intensive Fishing Caused Losses of Fraser Sockeye, PearseLarkin Report Finds." Press Release, December 7,1992. Smith, Melvin H. Our Home or Native Land? p.208. Fraser River Salmon Investigation, "Intensive Fishing Caused Losses of Fraser Sockeye."  68 going "missing," the d a t a does not support the c o n c l u s i o n that S m i t h implies i n his book. In addition to native p o a c h i n g , non-native p o a c h i n g , weather a n d climatic conditions, a n d w a r m water factors that h a d not been encountered before o n the Pacific coast played a part i n the "missing fish" saga. A n o t h e r factor that s h o u l d be considered i n attempting to explain the "missing fish" is the fact that D F O ' s fisheries information is c o n t i n u a l l y improving. It is very possible that fish have gone "missing" at other times i n the past, b u t that because of poorer fisheries information, D F O officials failed to n o t i c e .  24  O n e of the improvements to D F O ' s information gathering was its i m p l e m e n t a t i o n of one of the most a m b i t i o u s c a t c h m o n i t o r systems attempted anywhere i n the world as a part of the A F S . T h e c a t c h monitor system was designed to count a n d record every single fish caught i n the A F S fisheries. In the Pilot Sales fisheries, all fish h a d to be l a n d e d at a designated l a n d i n g site where they were counted a n d recorded by a monitor. T h e fish were then loaded into totes, a n d the fisher was i s s u e d a l a n d i n g slip. If there were no c a s h buyers at the l a n d i n g site, a transport permit was i s s u e d i n order that D F O be able to track the totes. A n d while the c a t c h monitor system d i d breakdown i n the first year of the A F S for want of proper l a n d i n g sites, the system d i d work m u c h better i n the following years. It is now considered by some to be a system that c o u l d be very useful as a m e a n s of controlling b y - c a t c h i n the regular c o m m e r c i a l fisheries.  25  B u t the i n c l u s i o n of the catch monitor system i n the A F S d i d n o t h i n g to appease the c o m m e r c i a l a n d recreational fishing g r o u p s that opposed the policy. T o express their anger at the A F S , g r o u p s s u c h as the B . C . Fisheries Survival Coalition c o n d u c t e d a seemingly endless series of protest fisheries. R o x a n n a Laviolette,  26  who served as a n A b o r i g i n a l  F i s h e r i e s Officer (AFO), observed several of these protest fisheries.  She  describes scenes i n w h i c h c o m m e r c i a l fishers i n large fishing boats Kariya, interview. Laviolette, Roxanna. Interview by author. Richmond, B.C., February 9, 2000. Also Kariya, interview. Roxanna Laviolette is a Gitksan woman who served as an Aboriginal Fisheries Officer from 19931998. She currently sits on the Board of Directors of Fisheries Renewal B.C. 24  25  26  69 careened t h r o u g h g r o u p s of aboriginal fishing boats, often times threatening to s w a m p the m u c h smaller aboriginal boats, a n d p u t t i n g the lives of aboriginal fishers at r i s k .  27  O n e of the flaws i n the A F S was the limited enforcement powers that it granted to Aboriginal Fisheries Officers. T h e theory b e h i n d h a v i n g A F O s was to p u t aboriginal people i n a better position to manage the fish resource. M a n y aboriginal people believed that A b o r i g i n a l F i s h e r i e s Officers w o u l d be better able to u n d e r s t a n d the aboriginal perspective o n the resource t h a n w o u l d n o n - a b o r i g i n a l D F O officers. B u t there was no established s t a n d a r d of qualifications for A F O s , n o r was there a s t a n d a r d u n i f o r m for the officers. B e c a u s e they were not easily recognized, A F O s h a d trouble g a i n i n g the respect of the fishers they were sent to monitor. C o m p o u n d i n g the problem was the fact that A F O s h a d very little i n the way of enforcement powers. A n A F O c o u l d confiscate the designation c a r d of a n offending fisher. W i t h o u t the designation c a r d , the fisher was not permitted to fish. B u t the A F O s d i d not have a n y power b e y o n d confiscation of designation cards. A n A F O c o u l d not detain a suspect without a D F O Officer being present.  28  So A F O s d i d not have a n y  authority to intervene i n the protest fisheries c o n d u c t e d by o p p o n e n t s of the A F S . Interestingly, opponents of the A F S , s u c h as Melvin S m i t h , also argue that the enforcement provisions i n the A F S were flawed. S m i t h writes that "enforcement m u s t be i n the h a n d s of officers trained by, employed by, supervised by, a n d responsible to, D F O . It is u n r e a l i s t i c to expect those who use the resource for personal gain - whatever c o l o u r their s k i n - to police it i n the p u b l i c interest."  29  Now some might argue  that those who derive their livelihood from the fisheries are precisely the people who s h o u l d police the i n d u s t r y because they have the most to lose if the resource is m i s m a n a g e d or if it is depleted by over-fishing. B u t S m i t h is right to suggest that those who police the fisheries s h o u l d have the training, authority, a n d enforcement powers necessary to be effective 27 28 29  Laviolette, interview. Ibid. Smith, Melvin H. Our Home or Native Land? p.216.  70 in their j o b s , a n d m u s t also be interested i n safeguarding the resource from over-fishing a n d poaching. It seems clear that A F O s c o u l d have been far more effective h a d they h a d greater authority a n d enforcement powers. A s for Smith's belief that aboriginals s h o u l d not have been policing the A F S fisheries at all, the a r g u m e n t rests on a n a s s u m p t i o n that fishers, "whatever the colour of their skin," are somehow dishonest a n d u n c o n c e r n e d with the long term sustainability of the fisheries. G i v e n that the p u b l i c interest i n c l u d e s the interests of fishers, Smith's c o n c e r n m u s t be d i s m i s s e d as baseless u n t i l his a s s u m p t i o n that fishers are dishonest c a n be further substantiated. In addition to the very well publicized critiques of the A F S , there were some problems that arose without garnering m u c h p u b l i c attention. O n e s u c h p r o b l e m was a reluctance on the part of some aboriginal fishers to recognize the c o m m u n a l aspect of their fishing rights. T h e  Sparrow  d e c i s i o n was very explicit about the sui generis nature of aboriginal rights. T h e y are c o m m u n a l l y - h e l d , a n d c a n not be considered as ordinary c o m m o n law rights. B u t problems arose i n some aboriginal c o m m u n i t i e s w h e n elders a n d those who c o u l d not actively fish began c o m p l a i n i n g to D F O that they d i d not have a n y fish to eat. In some cases, the s m a l l g r o u p that h a d controlled the b l a c k m a r k e t sale of fish prior to the i m p l e m e n t a t i o n of the A F S , h a d s i m p l y moved into the A F S fisheries a n d t a k e n control there. T h e worst cases o c c u r r e d on the lower F r a s e r ,  30  o c c u r r e d i n other parts of the province as well.  b u t similar incidents  31  While these p r o b l e m s were certainly serious, a n d not to be d i s m i s s e d , they d i d not highlight a n y particular p r o b l e m with the A F S . T h e s e matters were internal to the aboriginal c o m m u n i t i e s c o n c e r n e d , a n d given the c o m m u n a l nature of aboriginal fishing rights, h a d to be left u p to those c o m m u n i t i e s to resolve. T h e development of c o m m u n a l agreements was a part of the government's effort to change the relationship that the rest of C a n a d i a n society h a s with aboriginal peoples. 30  31 32  32  If D F O h a d been expected to resolve a dispute a s i n t e r n a l to a n  Kariya, interview. Laviolette, interview. Kariya, interview.  71 aboriginal c o m m u n i t y as the distribution of fish amongst the m e m b e r s of that c o m m u n i t y , a mockery w o u l d have been m a d e of the government's c o m m i t m e n t to a new relationship with aboriginal peoples. A final critique of the A F S , one that Melvin S m i t h h a s  expressed  particularly vehemently, is that the government s i m p l y went too far i n recognizing aboriginal fishing rights. Most opponents of the A F S will concede that the Sparrow  decision required the government to recognize  the aboriginal right to fish for food, social, a n d ceremonial p u r p o s e s , b u t they argue that D F O c o u l d have fulfilled the government's  obligations  u n d e r the law without i m p l e m e n t i n g the Pilot Sales agreements. writes of the Sparrow  Smith  decision that  t h o u g h narrow in its legal import, this decision became a convenient excuse for eager b u r e a u c r a t s a n d compliant politicians alike to argue that they were no longer able to regulate the native food fishery. 33  He argues that D F O statements c l a i m i n g that the A F S was "consistent with the principles set out by the S u p r e m e C o u r t of C a n a d a i n the Sparrow  decision," a n d that the A F S was "a strategy designed to  implement the 1990 S u p r e m e C o u r t of C a n a d a decision i n Sparrow" were part of a deliberate "misinformation c a m p a i g n . "  34  S m i t h argues that,  "though supposedly governed by the rule of law a n d the C a n a d i a n Constitution," D F O failed to c a n c e l the Pilot Sales after the B . C . C o u r t of A p p e a l rejected M s . V a n der Peet's appeal of h e r conviction. S m i t h does acknowledge that, at the time that he wrote his book, the S u p r e m e C o u r t h a d already agreed to hear V a n der Peet's a p p e a l . B u t the legality of the 35  A F S is certainly worth considering. In 1992, w h e n the A F S was first implemented, the S u p r e m e C o u r t h a d not yet h e a r d the Van der Peet, Smokehouse,  a n d Gladstone  appeals. So  at the time that the policy was designed, the federal government's legal obligations derived mostly from Sparrow. 33 34 35  Smith, Melvin H. Our Home or Native Land? p.203. Ibid, p.218. Ibid, p.220.  Because aboriginal fishing for  72 food, social, a n d ceremonial (FSC) purposes was found to be a n aboriginal right, the C o u r t r u l e d that "any allocation of priorities after valid conservation m e a s u r e s have been implemented m u s t give top priority to Indian food fishing."  36  C o m m e r c i a l a n d recreational fishers m u s t bear the  b r u n t of conservation measures. T h e A F S seems to have reflected both of these p r i n c i p l e s . T h e question of priority of access was also dealt with as a part of D F O ' s i n - s e a s o n management. C a s e s arose i n w h i c h , for example, a n aboriginal fishery that was going to result i n the t a k i n g of 100,000 pieces was s c h e d u l e d for the day after a c o m m e r c i a l opening that was going to see 8 0 0 , 0 0 0 pieces taken. W h e n s u c h cases were brought to light by the aboriginal c o m m u n i t i e s that were affected, D F O officials w o u l d attempt to reschedule the fisheries so that the aboriginal fishers h a d the first c h a n c e to fish. S u c h decisions were very u n p o p u l a r with the c o m m e r c i a l groups, b u t they were forced to accept t h e m . T h e Sparrow  37  decision also requires the government to allow  aboriginal g r o u p s to exercise their rights i n their preferred traditional way. A l t h o u g h the S u p r e m e C o u r t distinguished between aboriginal F S C a n d aboriginal c o m m e r c i a l fishing, aboriginal peoples have not traditionally m a d e this distinction. So whatever the motivation b e h i n d the i n c l u s i o n of Pilot Sales i n the A F S , a response to Melvin Smith's charge that the government acted unlawfully is that the i n c l u s i o n of Pilot Sales i n the A F S represented a n acknowledgement of the traditional aboriginal perspective on the fisheries. T h e acknowledgement of this perspective  was  a step towards compliance with the S u p r e m e C o u r t ' s requirement that aboriginal peoples be allowed to exercise their rights i n their preferred way. It is u n c l e a r whether or not the i n c l u s i o n of the A F O p r o g r a m i n the A F S m a r k e d a n acknowledgment of the Court's dictate that aboriginal people be able to exercise their rights in their preferred way. F r o m one point of view, it c o u l d be said that having the A F S fisheries policed by 36  37  ft v. Sparrow, reprinted in Kulchyski, Peter. Ed. Unjust Relations: Aboriginal Rights in Canadian Courts. Toronto: Oxford University Press, 1994. PP.212-237. p.233. Kariya, interview.  73 A F O s , as opposed to n o n - a b o r i g i n a l D F O officers, was a genuine attempt on the part of D F O officials to ensure that the aboriginal perspective was incorporated into the m o n i t o r i n g of the A F S fisheries. B u t given the m i n i m a l enforcement powers that were granted to A F O s , this view is somewhat difficult to s u s t a i n . O n the other h a n d , m a n y aboriginal people w o u l d argue that because aboriginal fisheries were traditionally selfregulating systems, it was u n n e c e s s a r y for D F O to appoint specific i n d i v i d u a l s to police the fishers. In m a n y First Nations, the entire c o m m u n i t y was traditionally involved in m o n i t o r i n g the fisheries. F o r example, the G i t k s a n u s e d devices s u c h as s h a m e feasts to discourage wasting or over-fishing.  38  T h e aboriginal perspective was u n q u e s t i o n a b l y considered b y D F O officials w h e n they defined the c o m m u n i t i e s with w h o m A F S agreements w o u l d be negotiated. T h e definition of "First Nation" was intentionally left a m b i g u o u s i n the A F S i n order to allow D F O to negotiate A F S agreements with i n d i v i d u a l b a n d s i n some areas, a n d with entire tribal c o u n c i l s i n others.  39  A genuine attempt was made to define the aboriginal  c o m m u n i t i e s involved i n the A F S i n the way that they defined themselves. T h e Van der Peet, Gladstone,  a n d Smokehouse decisions d i d not  impose a n y further obligations o n D F O . T h e C o u r t differentiated between a n aboriginal right to fish for c o m m e r c i a l p u r p o s e s a n d a n aboriginal right to exchange fish for m o n e y or other goods, but it d i d not preclude the possibility of either type of right existing. T h e C o u r t d i d rule against V a n der Peet a n d S m o k e h o u s e , finding against the existence of a Section 3 5 aboriginal right to exchange fish for m o n e y or other goods amongst the Sto:lo a n d the N u u C h a h ' N u l t h . So it w o u l d not have been u n c o n s t i t u t i o n a l for D F O to d i s c o n t i n u e the Pilot Sales o n the lower F r a s e r a n d o n the west coast of V a n c o u v e r Island. B u t n o t h i n g i n the S u p r e m e C o u r t decisions required, or even suggested that D F O c a n c e l the Pilot Sales either. T h e premise u n d e r l y i n g Melvin Smith's a r g u m e n t that D F O disregarded the constitution w h e n it failed to c a n c e l the Pilot Sales Laviolette, interview. Kariya, interview.  38  39  74 seems to be that the government is required to do all that the C o u r t orders it to, b u t m u s t not m a k e a n y policy decisions that extend b e y o n d the Court's rulings. In essence, S m i t h seems to be a r g u i n g that government policy o n aboriginal fisheries s h o u l d be dictated by the S u p r e m e C o u r t a n d not by the federal parliament. B u t the C a n a d i a n C o n s t i t u t i o n does not support this view. A c c o r d i n g to the Constitution 1867,  Act  "the exclusive Legislative A u t h o r i t y of the Parliament of C a n a d a  extends to all Matters c o m i n g within the C l a s s e s of Subjects next hereinafter enumerated;" T h e s e classes of subjects i n c l u d e "12. S e a C o a s t a n d Inland Fisheries," a n d " 24. Indians a n d L a n d s reserved for Indians."  40  So while some might oppose the Pilot Sales, the government  d i d not violate the rule of law or act unconstitutionally by i n c l u d i n g t h e m in the A F S . T h e A F S was consistent with C a n a d i a n law o n aboriginal fishing rights. T h e A F S is also quite consistent with the aboriginal fisheries policy that I proposed i n chapter two. B o t h policies emphasize individualized agreements for e a c h aboriginal nation. B u t the policy that I proposed i n chapter two is more extensive t h a n was the A F S , a n d i n c l u d e s provisions for aboriginal management of the fisheries that were not i n c l u d e d i n the A F S . T h e difference i n scope between the two policies is d u e to t h e m h a v i n g different objectives. T h e protection of the contexts of choice of aboriginal peoples that is the objective of the policy that I proposed i n chapter two is of a completely different magnitude t h a n were the objectives of the A F S . B u t despite h a v i n g different objectives t h a n w o u l d the policy that I proposed i n chapter two, the A F S i n c l u d e d two c o m p o n e n t s that were not explicitly ordered by the S u p r e m e C o u r t , b u t that are i n c l u d e d i n the policy that I a m proposing. T h e i n c l u s i o n of the Pilot Sales i n the A F S was a step towards allowing aboriginal peoples to exercise their rights i n their preferred traditional ways. A n d while the policy that I proposed i n chapter two w o u l d not differentiate between the allocations to s u b s i s t e n c e a n d c o m m e r c i a l fisheries as the A F S d i d , the i n c l u s i o n of a c o m m e r c i a l 40  Archer, Keith, Roger Gibbins, Rainer Knopff, and Leslie A. Pal. Parameters of Power: Canada's Political Institutions. Toronto: Nelson, 1995. p.542-3.  75 fisheries c o m p o n e n t i n the A F S was certainly consistent with the type of aboriginal fisheries policy that I a m proposing. T h e other significant point o n w h i c h the A F S is consistent with the aboriginal fisheries policy that I a m p r o p o s i n g is its flexible definition of aboriginal nations. T h e A F S left the definition of First Nation u p to the i n d i v i d u a l nations involved i n the program. In some cases, A F S agreements were negotiated with i n d i v i d u a l b a n d s , i n other cases, with entire tribal c o u n c i l s . Allowing aboriginal peoples to define themselves was a vital step towards the recognition of the complexity of g r o u p a n d i n d i v i d u a l identities i n C a n a d a that is central to the theoretical propositions u p o n w h i c h the policy that I a m proposing is b a s e d . Clearly, the architects of the A F S were cognizant of the fact that different aboriginal peoples defined themselves i n different ways, a n d that dealing with t h e m as they defined themselves was a n important step towards developing a n equal a n d trusting relationship. T h e A F S a n d the aboriginal fisheries policy that I proposed i n chapter two are similar enough, that the proposed policy w o u l d likely face m a n y of the same critiques as d i d the A F S . A l m o s t certainly, it w o u l d be suggested by some that the aboriginal fisheries policy that I a m p r o p o s i n g w o u l d create race-based fisheries, a n d that it w o u l d exceed the government's legal obligations to aboriginal peoples. A s w h e n they were leveled at the A F S , the responses to these two critiques w o u l d be very straightforward. W i t h regards to the first critique, aboriginal fishing rights are based on the aboriginality of aboriginal peoples a n d are i n no way related to the colour of their s k i n . W i t h regards to the second, the C a n a d i a n C o n s t i t u t i o n gives the federal government the  exclusive  authority to p a s s legislation regarding fisheries. T h e government is not required to limit its legislation to i m p l e m e n t i n g decisions of the S u p r e m e Court. B u t because of the significant role that it i n c l u d e s for aboriginal peoples i n fisheries management, the policy that I a m p r o p o s i n g w o u l d likely not face certain other critiques that were leveled at the A F S . It is highly unlikely that "double-dipping" would be a contentious issue u n d e r  76 the policy that I a m proposing. Allocations for aboriginal subsistence a n d c o m m e r c i a l fisheries w o u l d be undifferentiated across the whole province, as they are i n W a s h i n g t o n State, so most aboriginal c o m m e r c i a l fishers w o u l d have access to c o m m e r c i a l fisheries m a n a g e d by their own nation. "Double-dipping" c o u l d easily be eliminated as a part of the province-wide m a n a g e m e n t regime that D F O w o u l d develop i n c o n j u n c t i o n with the aboriginal peoples. A n y aboriginal person who wanted to fish commercially, but who belonged to a nation that w o u l d not have its own fishery, s u c h as a n interior people, c o u l d participate i n the c o m m e r c i a l fishery i n the same way that a non-aboriginal person who d i d not belong to a n aboriginal nation with its own fishery c o u l d . It is also u n l i k e l y that the policy that I proposed i n chapter two w o u l d be b l a m e d for incidents of "missing fish" similar to those that o c c u r r e d i n the s u m m e r s of 1992 a n d 1993. Traditionally, entire aboriginal c o m m u n i t i e s monitored their fisheries. If aboriginal n a t i o n s h a d authority over fisheries monitoring, it is likely that they w o u l d be very effective at r e d u c i n g p o a c h i n g . It w o u l d be very difficult for poachers to go undetected if the entire c o m m u n i t y was involved i n m o n i t o r i n g the fisheries. Also, the i n c l u s i o n of aboriginal peoples i n fisheries m a n a g e m e n t at the p r o v i n c i a l level w o u l d provide a further incentive for t h e m to have effective m o n i t o r i n g i n their fisheries. T h e effectiveness of aboriginal peoples at controlling p o a c h i n g w o u l d affect their credibility i n the p r o v i n c i a l level m a n a g e m e n t of the  fisheries.  T h e A b o r i g i n a l Fisheries Strategy fulfilled the federal government's legal obligations to aboriginal peoples. A n d while the A F S was not as extensive as the aboriginal fisheries policy that I proposed i n c h a p t e r two, the two policies are similar; however, the exclusion of aboriginal peoples from fisheries m a n a g e m e n t decisions u n d e r the A F S m a r k s a significant difference between the two policies. T h e aspect of the A F S that is most consistent with the policy that I proposed i n chapter two is its flexible definition of a n aboriginal nation. T h e theoretical propositions that I developed i n chapter one suggest that aboriginal peoples c a n only become full a n d free participants i n C a n a d a ' s liberal society if n o n - a b o r i g i n a l  C a n a d i a n s accept the fact that C a n a d i a n citizenship holds a different place i n the identities of aboriginal peoples t h a n it does i n their own. Negotiating A F S agreements with aboriginal peoples as they defined themselves was a sure step towards recognizing the complexity of their identities as C a n a d i a n s .  78  Conclusion O n the Pacific coast of North A m e r i c a , "a river without s a l m o n is a body without a soul. F r o m the Sacramento to the Y u k o n , every waterway p u l l e d b y gravity to the Pacific h a s , at one time, been full of the silver flash of life." S a l m o n have traditionally played a very central role i n most 1  of the aboriginal c u l t u r e s i n B r i t i s h C o l u m b i a . It is t h r o u g h these c u l t u r e s that aboriginal peoples develop the horizons of significance a n d the contexts of choice that allow t h e m to m a k e m e a n i n g f u l self-defining choices, a n d to participate fully a n d freely i n C a n a d i a n society. Quite simply, fisheries are part of a way of life that contributes to defining who aboriginal peoples are. T h e theoretical propositions that I developed i n chapter one are based on a complex u n d e r s t a n d i n g of group a n d i n d i v i d u a l identities i n C a n a d a , a n d are consistent with the S u p r e m e Court's focus on the distinctiveness of aboriginal c u l t u r e s . D u e to the inconsistencies i n the Court's doctrine of aboriginal rights, questions r e m a i n about the n a t u r e a n d extent of the aboriginal rights protected by Section 3 5 . B u t with C h i e f J u s t i c e M c L a c h l i n now at the h e a d of the C o u r t , it seems likely that those inconsistencies will be resolved i n s u c h a way as to move the C o u r t ' s doctrine of aboriginal rights closer to the theoretical propositions that I developed i n c h a p t e r one. Nevertheless, those propositions are consistent with the l i b e r a l i s m that u n d e r p i n s C a n a d i a n society. A n aboriginal fisheries policy b a s e d on the theoretical propositions that I developed i n chapter one w o u l d include m a n y of the elements that the C a n a d i a n government i n c l u d e d in the A F S , b u t it w o u l d be more extensive t h a n was the A F S because different objectives underlie the two policies. A s I d i s c u s s e d i n chapter four, the A F S was developed as a response to three major factors: the Sparrow decision, the need of D F O officials to develop a n effective management regime for the aboriginal fisheries, a n d the federal government's desire to foster a n open a n d t r u s t i n g relationship with aboriginal peoples as a m e a n s to avoiding a 1  Egan, Timothy. The Good Rain: Across Time and Terrain in the Pacific Northwest. New York: Vintage Books, 1991. p.182.  79 repeat of the type of violent confrontation that o c c u r r e d at O k a i n 1990 a n d i n recognition of the S u p r e m e Court's developing pattern of r u l i n g i n favour of aboriginal rights. T h e objective of a n aboriginal fisheries policy based o n the theoretical propositions that I developed i n chapter one w o u l d be to protect the contribution that fisheries m a k e to aboriginal c u l t u r e s a n d societies, a n d by extension, to the contexts of choice that are necessary for aboriginal peoples to participate fully a n d freely i n C a n a d i a n society. G i v e n C a n a d a ' s liberal democratic tradition, C a n a d i a n s s h o u l d s u p p o r t the government i n any attempt to ensure that the promise of liberal equality is extended to every citizen.  80  Bibliography A r c h e r , Keith, Roger G i b b i n s , Rainer Knopff, a n d Leslie A . P a l . Parameters of Power: Canada's Political Institutions. Toronto: Nelson, 1995. A s c h , M i c h a e l , a n d Patrick M a c k l e m . "Aboriginal rights a n d C a n a d i a n Sovereignty: A n essay on R. v. Sparrow." i n Alberta Law Review, (1991 V o l . X X I X No. 2). PP.498-517. B a s t i e n , Betty. 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