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Fishing Decision: ‘It’s not about race. It’s about place.’

Or so says Grand Chief Doug Kelly, speaking moments ago on CKNW Vancouver radio about the Supreme Court of Canada decision in R v. Kapp (2008 SCC 41). Kelly was talking with Michael Smyth on the Christy Clark show. Phil Eidsvik of the Fisheries Survival Coalition was part of the interview as well. Kelly distinguished between a racially-based fishery and one based on historical connections to specific places.

The 9-0 decision upholds native-only fisheries and answers questions about native only fishing going back to 1998.

Listen to the discussion between Michael Smyth, Doug Kelly, and Phil Eidsvik on CKNW.

CKNW on-air host Sean Lesley interviews MP John Cummins and then Grand Chief Ed John of the First Nations Summit about the decision. The callers to the program have interesting perspectives too. Listen here:


Kapp news (Fieldnotes)
All fisherman should be treated equally (CKNW)
Aboriginal only fishery rights upheld (CKNW)

Supreme Court should reconsider its fishing decision (Letter by John Cummins, MP in Vancouver Sun)

The Supreme Court based its legal conclusions on a demonstrably mistaken view of the record. Given what can charitably be called a bizarre decision riddled with obvious errors, it now has an obligation to reconsider its decision.

Court decision legitimizes racial bias (Vancouver Sun)

Ethnocultural leaders might be tempted to celebrate this ruling, but they shouldn’t. The flip side of racial preferences is racial profiling. When governments engage in racial preferences they are practising racial profiling by meting out differential treatment to individuals based on generalizations about the racial groups to which they belong.

The crude, two-fisted “affirmative action” model endorsed by the Supreme Court is obsolete. It’s strange the justices didn’t know that.

Native fishing program part of much bigger agenda (Ernie Crey in Delta Optimist)

And, by the way, Section 15.2 of the Charter of Rights and Freedoms is not just about aboriginal people and race; it’s also about gender, colour, ethnic and national origin, religion, age and mental and physical disability. Section 15.2 permits governments to adopt policies and programs designed to ameliorate disadvantage and poverty among these groups.

A bad decision on race-based fisheries (Ottawa Citizen)

The Supreme Court of Canada understands that aboriginal people have suffered hardship. But the court’s good intentions, expressed in a troubling decision last week, take the country to a place we don’t want to go, one where it’s acceptable to confer and withhold rights according to race.

Exclusive aboriginal fishery in B.C. not a charter violation: top court (

Despite the Supreme Court ruling, the judges identified a “real conflict” over the issue, because non-native fishermen were treated differently based on “racial differences.”

“It is established, in this case, that the right given by the Pilot Sales Program is limited to aboriginals and has a detrimental effect on non-aboriginal commercial fishers who operate in the same region as the beneficiaries of the program,” the court ruling said.

“It is also clear that the disadvantage is related to racial differences … The right to equality afforded to every individual under Section 15 [of the charter] is not capable of application consistently with the rights of aboriginal fishers holding licences under the Pilot Sales Program. There is a real conflict,” it said.

Top court supports aboriginal-only commercial fishery (Canwest)

Eight of the nine Supreme Court justices dismissed the case on the grounds that the licences are part of an affirmative action program, and therefore do not violate the equality guarantee of the charter. Retiring Justice Michel Bastarache agreed, but indicated he would have dismissed the case solely on the basis of the section of the charter that guarantees certain rights and freedoms for aboriginals. Bastarache wrote that he didn’t even need to consider whether the licences violated the equality rights of the non-aboriginal fishermen because he believes the program falls under section 25 of the charter and that section takes priority.

Supreme Court upholds aboriginal-only fishery (Vancouver Sun)

The Supreme Court ruled unanimously that an aboriginal-only commercial fishery is consistent with the Charter of Rights and Freedoms because it sought to improve the economic conditions of a disadvantaged group, in this case, three aboriginal bands from B.C.

Canada urged to cancel native commercial fisheries after court decision (Vancouver Sun)

Conservative MP John Cummins (Delta-Richmond East) said the court ruling leaves non-native gillnet fisherman on the Fraser River economically disadvantaged.

“They are the ones paying the price,” he said. “Their hardship has been ignored by the courts. They’re ordinary Canadians who bought a boat, a licence and some gear. They never made a huge whack of money. They made a living.”

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