Giving exclusive commercial fishing licences to aboriginal groups is consistent with the Charter of Rights and Freedoms and does not discriminate against non-aboriginal fishermen, the Supreme Court of Canada ruled yesterday in a unanimous decision.
Ruling on what’s known as the Kapp case, the country’s top court said a federal fisheries program that gives three native bands a 24-hour jump-start on fishing for salmon in British Columbia’s Fraser River is not unconstitutional because it qualifies as an affirmative action program.
The government was taken to court by a group of non-aboriginal fishermen who argued the program violates their Charter equality rights because they were discriminated against on the basis of race.
In its decision, the court acknowledged the program “has a detrimental effect on non-aboriginal commercial fishers” and “that the disadvantage is related to racial differences,” but found the program falls under the section of the charter that protects affirmative action programs from constitutional challenges.
“By their very nature, programs designed to ameliorate the disadvantage of one group will inevitably exclude individuals from other groups,” the court wrote. “This does not necessarily make them either unconstitutional or ‘reverse discrimination.’”
The Charter section in question — Section 15(2) — gives governments the right to implement a program that “has as its object the amelioration of conditions of disadvantaged individuals or groups” and in this case, the Supreme Court agreed with the Crown that the communal fishing licences granted to the Musqueam, Burrard and Tsawwassen bands meet the relevant criteria.
“The disadvantage of aboriginal people is indisputable,” the court said, and the bands in this case “were in fact, disadvantaged in terms of income, education, and a host of other measures.” The special licences are an attempt to negotiate solutions to aboriginal fishing rights claims and they provide economic opportunities and promote band self-sufficiency, thereby relating to the goals of improving conditions, the court said.
Above and beyond the obvious ones of the non-native commercial fishermen who had brought the suit, there were other concerns about the court’s decision.
Traditionally there are two arguments invoked to justify racial preferences in allocating resources and opportunities: 1) Such preferences are necessary to compensate for past wrongs and to give disadvantaged groups a leg up; and 2) they are necessary to ensure diversity of perspectives and ideas.
The court declared that the racialist system for allocating fishing rights is legal, but what’s disconcerting is that the court relied on argument No. 1. True, the second argument wasn’t available — no one was saying that the commercial fishery is like a law school class where diversity is needed to add cultural richness. But the problem with using reverse discrimination to compensate historically disadvantaged groups is that this approach was discredited long ago.
Yes, aboriginals as a group have suffered persecution and, yes, aboriginals have been disadvantaged as a result. But if the government is going to redress this past wrong, it needs to be certain that a) any individual being compensated has personally been injured and b) any individual at whose expense the compensation is being made is responsible for, or benefited from, the injury.
This stuff is still new to Canadians, but Americans have been dealing with it for decades as their country struggled with the legacy of slavery. Early on, some U.S. civil rights activists also fell into the trap of thinking that because John is black and Peter is white, and because blacks as a group are disadvantaged compared to whites, it’s fair to give preference to John over Peter, without knowing anything about their individual circumstances.
As the philosopher Carl Cohen wrote in a seminal 1979 paper, “rights do not and cannot inhere in skin-color groups. Individuals have rights, not races.” Last week, the Supreme Court justices showed themselves stunningly ignorant of this widely accepted ethical principle, declaring that the “fact that some individual members of the (aboriginal) bands may not experience personal disadvantage does not negate the group disadvantage suffered by band members.”
Now, some Canadians might think, “OK, so my government is engaging in racial preferences. But is it not a pretty trivial entitlement that the non-aboriginal fishers are being denied, this right to fish for 24 hours? Why begrudge aboriginals a small advantage?”
Race-based approaches to social organization are never trivial. As Mr. Cohen noted: “Protests over segregated lunch counters had as their target not the culinary opportunities denied, but the immoral character of the ground of their denial.”
Ethnocultural leaders might be tempted to celebrate last week’s ruling, but they shouldn’t. The flip side of racial preferences is racial profiling. When governments engage in racial preferences they are actually practicing racial profiling, by meting out differential treatment to individuals based on generalizations about the racial groups to which they belong.
Regardless, the Court has spoken. The question is whether they have now set a precedent that will become the norm.