Wednesday, November 04, 2009

I Like It.

"Today this decision confirms what we've known all along. We have been stewards of our ocean resources for hundreds of generations, and the Government of Canada was wrong to push us aside in their attempts to prohibit our access to the sea resources our people depend upon."

- Cliff Atleo, on the B.C. Supreme Court decision upholding the rights of the Nuu-chah-nulth people to harvest and sell their traditional marine resources.

"It means there's some hope for a brighter future," said Nuu-chah-nulth Tribal Council president Cliff Atleo Sr. "There will be economic benefit for the Nuu-chah-nulth. That's great news. It's what we've wanted all along."

Also a quick report here from our pal Wawmeesh.

15 Comments:

Blogger Bernard von Schulmann said...

I thought this had all be settled in Vander Peet and Galdstone in 1997. Though NTC smokehouse did lose at that time.

I am glad to see a decision affirming aboriginal rights include economic rights from lands and resources they governed in the past.

Now I would like to see a Nuu-Chah-Nulth challenge to the ban on whaling. There is no shortage of Gray Whales and other aboriginal people are allowed to hunt them.

3:55 PM  
Blogger IceClass said...

Excellent news but as we've found out at this end of the country, getting rights recognized is one thing, getting fair and adequate quota out of DFO is another entirely.

6:35 PM  
Blogger Gareth said...

I just don't believe that treating people as a separate class with separate rights is appropriate. Canadians should be equal before the law. I don't think one can redress the injustice of the past with injustice of the present.
MR von Schulman: Would you like to see Canadians of Japanese, Norwegian, or any other ethnicity that has traditionally hunted whales also be permitted? What about the formation of 'war parties'? Should First Nations be allowed to raid each others territories? How about slavery? That is virtually a universal tradition so it probably wouldn't meet your preference to award rights only to groups of people you approve of. If there are lots of Grey whales, why can only aboriginal people hunt them? As for granting rights because of "lands and resources they governed in the past," how would you account for the shifting boundaries of the various competing tribes? Maybe stewardship of the English countryside should be given to whatever pagans or druids they can find. I just can't figure out why you would say you hope they challenge the whaling ban. First nations are not the only culture to have hunted and fished. Just curious, are you OK with the seal hunt? Does it bother you if a European clubs a seal but not a so-called aboriginal?

4:45 AM  
Blogger Gareth said...

I should add that the original exclusion of natives from commercial fishing, granting rights for ceremonial and cultural purposes was wrong. They should have the same opportunities as anyone else, no more, no less.
As for this notion of stewardship, I'm sorry but this is just another version of the "noble savage" nonsense of years past, albeit with the backing of the politically correct set.

4:52 AM  
Blogger Terry Glavin said...

"I just don't believe that treating people as a separate class with separate rights is appropriate. . . They should have the same opportunities as anyone else, no more, no less."

I agree with the principle, but you are making the classic mistake people make on the matter of aboriginal rights. True enough, the federal government has also gotten this wrong in the matter of aboriginal rights from time to time, too (mistreating aboriginal people based on their race, providing ostensible benefits based merely on "race," and son on).

But that's not what's happening here. Even the nutters with the "Fisheries Survival Coalition" are saying they are happy this is not a decision that assumes "rights based on race."

The legal doctrine of aboriginal rights is actually based in the proposition that English common law principles should apply equally; aboriginal people's pre-existing rights should not be disregarded or trampled upon or arbitrarily expropriated just because their customs, traditions, practices, ownership rights and rights of use are based in aboriginal customary law. The Crown has always recognized the legitimacy of that law and acknowledged that its enforceability persists unless and until legally extinguished. or modified, by due process. This is what it means to live in a civilized country.

Think about the implications of what you're saying, informed by that fact, and you will see that what you are proposing is that I should have a right to your house keys, your car keys and your PIN number, just for starters.

And once I've moved into your house and looted it and piled up your car and emptied your account, you will complain, and I will hector you in this way: Well, my original crime was wrong, but I'm against "righting the wrongs of the past" and you should have only "the same opportunities as anyone else, no more, no less."

As for the rest of your comments, the ones that aren't rendered irrelevant by your error I do not much object to, except I think you will find that Iceclass and I support the seal hunt, Inuit and swiler. I even support the traditional, sustainable whale hunt of the Lofoteners, for instance (shock, horror, they are "white" people).

8:37 AM  
Blogger Terry Glavin said...

Note well:

In 1674, Sir John Davies, addressing such questions at the court in London, summed up what became the doctrine of "aboriginal rights" this way:

"The common law of England is nothing else but the Common Custom of the Realm. . . It can be recorded and registered nowhere but in the memory of the
people. For a Custom taketh beginning and groweth to perfection. . . when a reasonable act once done is found to be good and beneficial to the people,
and agreeable to their nature and disposition, then do they use it and practise it again and
again, and so by often iteration time out of mind, it obtaineth the force of a Law. And this
Customary Law is the most perfect and most excellent, and without comparison the best, to
make and preserve a Commonwealth."

- TG

9:00 AM  
Blogger Terry Glavin said...

I.e. see Cliff's "We have been stewards of our ocean resources for hundreds of generations" in that light and you'll get the point.

9:04 AM  
Blogger Gareth said...

First off, I must say you do make some excellent points Terry. However, I object to this proposition:
"Think about the implications of what you're saying, informed by that fact, and you will see that what you are proposing is that I should have a right to your house keys, your car keys and your PIN number, just for starters."
This is not an apprpriate analogy. If someone "took the keys" so to speak from my great great great grandparents, It would be no more just to march back generations later and demand the keys back from an unsuspecting relative. The fact is that human history has been dynamic, and usually brutally unfair. Trying to turn back the clock may be admirable but it is unworkable. As someone of Welsh heritage, with Scottish and Irish mixed in as well, my "people" were arguably the first victims of English imperialism but somewhow I'm able to deal with it. As for granting rights to groups rather than individuals, I am philisophically leery of any such attempts. I really don't want to downplay the injustice that has been heaped upon Canada's First Nations. In fact, I don't believe there is any way to make up for it quite frankly. My whaling and sealing comments were aimed not at you Terry, but Von Schulman actually.
One other thing: I enjoy your blog and your work immensely, especially regarding Afghanistan. Keep up the good work.

6:04 PM  
Blogger Gareth said...

I would also suggest that given the evolutionary nature of common law, statements from 1674 would not necessarily hold today. I realize that the current judge's word is law, so I do not think this ruling is "illegal" or anything, but I do think this issue is as political as it is legal. This sensitive issue is one most politicians would prefer to avoid unfortunately, choosing instead to defer to the courts.

6:11 PM  
Blogger Terry Glavin said...

Gareth:

I generally agree with you on the folly of trying to turn back the clock to right historic wrongs and so on.

I am sympathetic to the case that we should at least try to right those wrongs as best we can, but that is rather beside the point in this case. This is about "wrongs" that are ongoing, wrongs that can be remedied, wrongs that are committed on an annual basis, in most DFO seasonal fishing plans.

Aboriginal rights, to the extent that they are not extinguished, and persist, are enforceable in Canadian law. Nobody "granted" these group rights to anyone, either - that was my point in referring to Davies, whose words are immediately and directly relevant to the present. Davies describes how these rights arise - "A custom taketh beginning and groweth to perfection. . . when a reasonable act once done is found to be good and beneficial to the people, and agreeable to their nature and disposition, then do they use it and practise it again and again, and so by often iteration time out of mind, it obtaineth the force of a Law." His words are a clear enunciation of what we mean by "rights" when we talk about them in the contemporary "aboriginal rights" context; aboriginal rights are no more and no less the very real customs, traditions and practices that form a distinctive and central aspect of specific aboriginal cultures.

I stress this to point out that "race" has nothing to with any of this; nor does "granting" group rights, of which I would be every bit as leery as you.

"This sensitive issue is one most politicians would prefer to avoid unfortunately, choosing instead to defer to the courts."

Bingo.

So many court cases. Sparrow, Delgamuukw, Vanderpeet, NTC Smokehouse . . . every time, the doctrine of aboriginal rights is upheld. Every time, the polticians agree to mend their ways, and nothing happens.

7:33 PM  
Blogger Gareth said...

Well, you've almost persuaded me. Ultimately, I don't think there is much difference in our sentiments. I acknowledge that aboriginals should have rights to a sustainable commercial fishery, as should all other Canadians. I think there is probably not an ideal solution. As much as I would like every individual to be treated to the same rights, it is never going to happen for a variety of reasons. Perhaps the current ruling is the best that can be expected for now.
I also want to mention that while your arguments are entirely reasonable, there is a segment of the population (aboriginal and otherwise) that does want to turn back the clock(think of all the Hamas supporters for that matter), and I suppose in hindsight many of my comments were aimed primarily in that direction. Anyway, thanks for your thoughtful rebuttals. It has given me much food for thought. Gareth.

8:08 PM  
Blogger Terry Glavin said...

Gareth:

Odd that you should mention Hamas in this context.

Just as Hamas is the worst enemy of Palestinian freedom, a great deal of "liberal" support for aboriginal people has done far more harm than any good it might have contributed. Configuring the political case for aboriginal rights as some sort of white-guilt affirmative action program has done at least as much to confuse the issues and confound the search for just and honourable settlements as the worst kind of redneck rejectionism.

For me, recognition of aboriginal rights fulfills the obligation we have as citizens to treat one another equally.

Respecting aboriginal rights, in their specific meaning and manifestation in respect of individual, real and historical aboriginal communities, is exactly what it means to treat everyone equally. We should recognize the common-law rights vested in specific aboriginal communities, which vary and differ in scope and content from one community to the next (i.e. an Ahousat person has no aboriginal right to fish for halibut in Haida waters) just as we would recognize the common-law rights of settlers, which also vary and differ from one community to the next, and among and between individuals as well.

These rights are necessarily
"different" in their scope and content, i.e. I don't have a right to vote in Manitoba because I don't live there; I don't have a right to the money in your bank account because I didn't earn it; I don't have a right to fish commercially for sockeye in the Skeena River - even though those fish are a Crown-owned, public resource - because I am not among those citizens who possess federally-issued limited-entry fishing licences to catch Skeena salmon.

So yes, it all gets complicated, and at the same time, not so, and as sir John Davies put it, it is "the most perfect and most excellent, and without comparison the best, to make and preserve a Commonwealth."

Cheers,

TG

8:52 PM  
Blogger Gareth said...

I wasn't making a direct analogy. I was simply trying to make the point that the desire to turn back the clock leads to, or maybe results from kooky ideas, like believing that Hamas is not "an enemy of Palestinian freedom."

"A great deal of "liberal" support for aboriginal people has done far more harm than any good it might have contributed. Configuring the political case for aboriginal rights as some sort of white-guilt affirmative action program has done at least as much to confuse the issues and confound the search for just and honourable settlements as the worst kind of redneck rejectionism."
That is more or less what I was trying to get at.
Cheers. Gareth.

9:30 PM  
Blogger Gareth said...

"Today this decision confirms what we've known all along. We have been stewards of our ocean resources for hundreds of generations, and the Government of Canada was wrong to push us aside in their attempts to prohibit our access to the sea resources our people depend upon."
I agree that they should have the right to fish commercially, but the "steward" comment bothers me because it plays into the "white guilt" phenomenon you've identified. To me at least, it also appears a little close to "noble savage" reasoning though that was certainly not the intent. While you are right that this is a legitimate legal issue and not simply an issue of white guilt, that is not always how it is framed by the various parties in their communications with the media. Ultimately, until negotiations regarding the application of this ruling are concluded I suppose I'm incapable of drawing any final conclusions.

9:56 PM  
Blogger IceClass said...

Feds are appealing:http://bit.ly/6ZxIKy

1:26 PM  

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