Archive for the ‘Native Issues’ Category

First Nations, Environmentalists and diverging agendas

December 15, 2009

Macleans magazine has an interesting article on an emerging difference in agendas between British Columbia First Nations and environmental groups that had partnered with them on numerous protests against development on what at the time both groups considered to be environmentally sensitive areas.

Last month, the Squamish Nation okayed a controversial plan to erect a series of billboards on scenic native land. They weren’t just any signboards, but 300-sq.-foot blinking, digital billboards to advertise cellphones and cars. Negative reaction to the planned signs—some of which are set to line the spectacular route to Whistler—was so visceral the band was forced to scale back the design. Its opponents, the Citizens for Responsible Outdoor Advertising, say they are having to take on the role of “guardians of mother nature”—a role traditionally played by their “Squamish neighbours.”

Aboriginals are hardly the typical environmental bogeyman, but Squamish isn’t the only band making environmentalists barking mad. Last month, Coast Tsimshian Resources, a fledgling Aboriginal logging company based in Terrace, B.C., began shipping western hemlock to China. The company, which recently harvested its millionth cubic metre, is already one of the largest licence holders in B.C., with another sale to China in the works, and it has handily given Canada’s blighted logging industry a shot in the arm. But by exporting raw logs—so-called high-volume, low-value industrial forestry—it is igniting controversy. That the company is providing vital jobs and revenue to the Lax Kw’alaams First Nation hasn’t done much to earn it the sympathy of environmentalists. They are “destroying forests, and jobs,” says Wilderness Committee director Ken Wu; like the Sierra Club and ForestEthics, it supports a total ban on raw-log exports.

While the media was reporting how the environmental movement and First Nations were working hand in glove for a common cause, they were in fact using one another. The environmentalists were using the powerful image of the First Nations as being protectors of the land to achieve their goals of limiting or outright stopping logging in large areas of the province. At the same time, the First Nations were using the media skills of the environmentalists to promote their claims to ownership of, if not the land itself, at least the resources it held.

Fittingly, perhaps, the split between natives and greens began at Clayoquot Sound—where their marriage was celebrated a decade and a half ago. Environmentalists and the Nuu-chah-nulth, Clayoquot’s five tribes, had united in 1993 to protect the ancient temperate rainforest from the industrial logging that had razed so much of Vancouver Island. And what an alliance it was. B.C.’s War in the Woods became an international cause célèbre—“one of the defining environmental battles of our time” according to Robert F. Kennedy, Jr.—recording the largest protests in Canada’s history, and over 800 arrests. Last year, however, when two Aboriginal logging firms, Iisaak Forest Resources and Ma-Mook-Coulson, began clearing logging roads into Clayoquot’s undeveloped valleys, a powerful alliance of brand-name environmental NGOs including Greenpeace, the Sierra Club, the Wilderness Committee and ForestEthics banded together, threatening a return to its feted blockades. A truce has been called—but it is unlikely to hold for long. “Within a few years, we’ll have to go into the pristine valleys,” says Iisaak spokesperson Gary Johnsen. Otherwise, “neither company will survive.”

It has always amazed me that the various environmental groups involved were so naive to not see this coming. Did they really believe that in the long run the First Nations leaders would maintain their alliance with a bunch of non-native, elitist activists? Or did they really believe that the long-term needs of First Nations would be satisfied by some back-to-the-land philosophy.

I wonder if the First Nation leaders of that time saw the eventual route that they would eventually take or whether they honestly bought into the preservation agenda of the environmental community and their successes there simply left them in a strong position to act independently when their new agenda became jobs and income streams.

The environmental community has said that they will fight the First Nation’s resource extraction in areas that they fought to keep undeveloped. I suspect that they will not as successful fighting against them they were fighting with them.  In fact, I would wager that they have lost that battle already.

Ottawa and meetings, meetings, meetings

May 7, 2009

Working in Ottawa this week with a small delegation from the BC Wildlife Federation. We have been meeting with MPs, Senators and senior bureaucrats since Monday and are on our last day of meetings. Flying home tomorrow. Not a moment too soon as I think I am just about overdosed on meetings.

We came down to talk about several issues: fisheries (halibut allocation to a large degree), the amendments to the Navigable Waters Protection Act which were shoved through in the government budget bill, C-10, native affairs issues and federal firearms issues, specifically Garry Breitkreuz’ private member’s bill C-301 and the government’s Senate bill, S-5.

We were given a good ear by all of the people that we met with, which doesn’t mean that anything will happen, but at least we were given the courtesy to fairly state our case.

Lots of security as is to be expected. But what impressed me was the friendlness and good humour of the secutiry people. Having grown used to quite the opposite reaction in airports everywhere, where it appears they are trained to suspect everyone as an imminent security risk, it was quite a nice change. Commendations to whomever is in charge of that aspect of the Otawa experience.

Further criticism on the Kapp decision

July 6, 2008

The last posting refers to the Supreme Court of Canada’s Kapp decision which validated a race-based commercial fishery quota in British Columbia. A further article goes on to point out that race based quotas just create a new class of victims.

Quotas are one-size-fits-all remedies for problems that deserve more careful and specific treatment. The way to help Canadians in poverty, including aboriginals discriminated against in the past, is to provide targeted money and education based on individual need. The worst thing a government can do is to use the scattered approach of quotas, which only creates new victims.

To illustrate, in the West Coast fishery, the new quota victims include fishermen of Vietnamese, Japanese and even aboriginal ancestry. The combination of the discrimination-is-OK section of the Charter and federal policy means Kim Nguyen, the first woman of Vietnamese ancestry to join the B.C. fishing industry, is now a second-class Canadian citizen.

The Charter-plus-policy discrimination racket also means George Horne, an aboriginal who has been fishing for 50 years and who belongs to the Saanich Indian Band, can’t fish commercially on an equal basis because of such quotas. He belongs to the “wrong” aboriginal collective.

A third unintended victim of intended racial quotas is Leslie Budden.

Budden is of Japanese ancestry and wrote to Prime Minister Stephen Harper in 2006 to note how her family now faced discrimination for the second time in a century because they were not of the proper race. She noted how in the 1920s the federal government created race-based commercial fisheries that handicapped those of Japanese origin — including her grandfather, Rintaro Hayashi. Eventually, the fishermen went to court and won. Equal rights were restored in the fishery by the Privy Council in England in 1929.

As noted in the previous post it will remain to be seen how this decision plays out in other areas.

Supreme Court of Canada validates race based fishery decision.

July 6, 2008

On June 27, 2008 the Supreme Court of Canada delivered its’ decision in the Kapp case.

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.

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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.”

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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.

Some further commentary on night hunting

December 26, 2006

The National Post has some editorial comments on the Supreme Court decision on aboriginal night hunting. Although some of their reasoning may resonate with non-native hunters (ie: fair chase) it probably won’t make much of an inroad with the native community. In reality, so much of this battle has to do with simple politics and not the need/right of natives to hunt at night using lights. It all comes down to who has the power and who makes the rules.

Supreme Court of Canada night hunting judgment

December 22, 2006

When I first read the judgment from the Supreme Court on night hunting by aboriginals my initial thought was, “what are they smoking in the judge’s chambers? After I had read the judgment I modified that to “what were four of the judges smoking in chambers”?

The story is that in 1996, two members of  the Tsarlip Indian Band on Vancouver Island had been charged and eventually convicted of  hunting deer at night, which is illegal, due to safety reasons, right across Canada and the U.S.

Arguing that they had traditionally hunted at night with lights they challenged their conviction based on the argument that their treaty rights were being infringed.

This argument was based on the fact that their band was covered under the North Saanich Treaty of 1852, that guaranteed that the Saanich Tribe “are at liberty, to hunt over the unoccupied lands, and carry on our fisheries as formerly”. The key word being “formerly”. They argued that because it was part of their hunting tradition, that they were guaranteed to be able to continue this method of hunting. 

In a split 4 to 3 decision the Supreme Court of Canada allowed the appeal and set aside the convictions.

The four assenting Justices, Binnie, Deschamps, Abella and Charron agreed that there was no treaty right to “hunt dangerously”, but that “British Columbia is a very large province, and it cannot plausibly be said that a night hunt with illumination is unsafe everywhere and in all circumstances …”.

The esteemed judges did concede that “if a night hunt is dangerous in particular circumstances, it can (and should) be prosecuted …”.

That makes the Conservation Officer’s job much tougher. Unless someone is lying on the ground dead or there is a bullet hole through the kitchen window, who’s to say the circumstances weren’t safe?

A nice touch was their concept of the northern part of the province:

The blanket prohibition of s. 27(1)(d) and (e) applies, of course, throughout British Columbia, including the vast regions of the interior. Much of the north of the province is uninhabited except by aboriginal people, and there are areas where even they are seen only occasionally.   To conclude that night hunting with illumination is dangerous everywhere in the province does not accord with reality and is not, with respect, a sound basis for limiting the treaty right.

I get the impression that their view of British Columbia is a roadless wilderness north of Prince George or possibly even the Okanagan.

In the dissenting view by Justices McLachlin, Bastarache and Fish, they state:

When the Douglas Treaty was signed, hunting at night was not uncommon. Nor was it particularly dangerous.  It would not have been surprising had both the Crown and the North Saanich aboriginals contemplated that the aboriginals would continue to hunt at night.  At the time, this practice did not pose the same dangers as it does today (which dangers will be explained in detail below).  And the parties may not have even had reason to anticipate that the dangers would grow.  But they could not have believed that the right to hunt included a right to hunt dangerously.  To impute that belief to them would do injustice to both parties and, would in addition, defy common sense.

Unfortunately, their arguments did not carry the day.

There is always talk in cases such as this that the changes in technology should be taken into consideration. Birchbark torches being replaced by high-power lights, canoes and horse by trucks and ATVs and the bow and arrow by high power rifle with scopes. But this judgment speaks very clearly to that opinion:

 From 1852 to the present, the tools used by the Tsartlip in hunting at night have evolved.  From sticks with pitch to spotlights and from canoes to trucks, the tools and methods employed in night hunting have changed over time.  These changes do not diminish the rights conferred by the Treaty.  The right of the Tsartlip to hunt at night with illuminating devices has of necessity evolved from its pre-treaty tools to its current implements. 

and:

This approach has led the Court in other cases to acknowledge, for example, that hunting with a rifle and ammunition is the current form of an evolving right whose origins were hunting with a bow and arrow (Simon v. The Queen, [1985] 2 S.C.R. 387), and that a treaty right to erect a log cabin for hunting purposes flows from the former use of mossy lean-to shelters (R. v. Sundown, [1999] 1 S.C.R. 393).

It is worthwhile to read through the complete judgment to gain an insight into how the judicial mind works. Personally, I think that the dissenting three got it right, but that is the risk every time you go into court. Whether it is local or Supreme, you never know how it is going to play out.


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