Lawrence Solomon
National Post
October 10, 2000

Yo, you white Maritime lobster fishermen, get over it! The natives won; you lost. “A deal is a deal,” the Supreme Court stated last September. The Mi’kmaq have first dibs on the fishery; you get to divvy up most of what’s left.

When you went back to the Supreme Court to overturn this “injustice,” as you called it, the Supreme Court slapped you down good. Through your lawyer you told them — as if you had any rights in the matter — that the natives should not be able “to involuntarily displace any non-aboriginal existing participant in any commercial fishery.” You told them the courts should not be able to decide “who shall and shall not have access to the commercial fisheries.” You told them aboriginal rights should be denied if they disrupted your way of life, as if your way counted as much as theirs.

It doesn’t. Listen up, it’s not hard to understand. They have property rights. You don’t. End of story.

No matter how much you threaten the government, no matter how much that non-native, Dhaliwal, at the Department of Fisheries and Oceans, postures about reeling in the Burnt Church natives, nothing changes the fact it is they who have the law on their side. You don’t, and neither does that Dhaliwal, even if he is the biggest fish at DFO, even if he is a member of the federal Cabinet.

Natives have property rights because their leaders fought for property rights, and Pierre Elliot Trudeau, then the prime minister, agreed to put them into the 1982 Constitution. You don’t have property rights because your leaders fought against property rights, and Mr. Trudeau left them out. It didn’t sit well with Maritime premiers in lobster provinces — that’s PEI and New Brunswick — to have to fork over compensation whenever they decided to take your property. The upshot? You white fishermen truly are second-class citizens in your own country. You truly do have fewer rights to earn a living in your chosen occupation than do natives. But your gripe isn’t with the justices on the Supreme Court of Canada, who are doing their job to the best of their ability. Your gripe isn’t with the native leaders, who 20 years ago did their job for their native constituents. Your gripe is with your own leaders, who 20 years ago decided you weren’t entitled to any property they couldn’t easily reclaim, rearrange or confiscate.

In the past, violence has stood you in good stead. In the early 1980s, when DFO cracked down on illegal fishing by white fishermen in Nova Scotia, some of you commandeered two patrol boats and, to make sure they wouldn’t interfere with you again, torched them. It was a winning strategy. The judge let them off easy and gave DFO a dressing down. DFO hasn’t bothered you since. The strategy worked last fall, too, after the Marshall decision came down. That three-day rampage against natives and those who did business with them, causing $250,000 in property damage, drew a reprimand and $400 fines from another local judge. And it convinced that Dhaliwal that the rivers would run red if he didn’t act decisively. Controlling you — with your history of violence — required more courage than he had. Much easier to appease you by coming down hard on the natives, who had broken no laws, and concocting some phoney claims about conserving lobster stocks.

But violence won’t work with the natives. They have too much at stake, and they aren’t going away. Why should they? The Supreme Court already explained — unanimously in its November judgment — that the arguments made by the fishermen won’t hold water. “This is not a legal principle,” the court said, after hearing your lawyer’s claim that non-natives had entitlements that overrode treaty obligations. “It is a political argument. What is more, it is a political argument that was expressly rejected by the political leadership, when it decided to [affirm aboriginal rights] in the Constitution Act, 1982.” The natives also know the Supreme Court has repeatedly made it clear it will support natives in disputes involving questionable interpretations. It does so, it says, because the Crown had drawn up the treaties after natives and the Crown made oral agreements. To interpret a treaty that the Crown had written up contrary to the oral terms would offend “the honour and the dignity of the Crown.”

The odds are stacked against you, and also against non- natives in other occupations. More native rights cases are in the lower courts, wending their way to the Supreme Court, dealing not only with fisheries but with timber and other resources. Get ready to lose those, too — unless you change tack.

Here’s a plan. Don’t argue that natives aren’t entitled to their rights. That will get you nowhere. Instead, argue that you’re entitled to constitutionally protected property rights, too. Last week, Stockwell Day made property rights an election issue when he said he wants to strengthen property rights for natives. Tell Stock: “What about property rights for the rest of us?” Tell that to Jean Chr‚tien, too. Why shouldn’t we all — regardless of race — be first-class citizens in our own country?