PUBLICATION The Fredericton Daily Gleaner
DATE Monday February 19, 2001
BYLINE CHARLES MOORE

Two sets of laws won't work for one people

Some of Canada's jurists seem to be hell-bent on stoking the fires of racial resentment. In the September 1999 Supreme Court of Canada decision in R. v. Marshall, the five justices of the majority endeavoured to write resource exploitation rights into an obscure, 240-year-old treaty that simply weren't there -- as the now chief justice pointedly noted by in her dissent, observing that the majority decision created "an unintended right of broad and undefined scope."

Even the writer for the Marshall majority, Justice Ian Binnie, conceded in his ruling that: "The right to fish is not mentioned in the March 10, 1760, document nor is it expressly noted elsewhere in the records of negotiations put in evidence."

The court subsequently backed away from some of the ruling's more egregiously extravagant provisions in a hasty "clarification."

Another Supreme Court justice, Michel Bastarache, who did not sit on the Marshall panel, has publicly criticized the Marshall decision and raised hackles among some native politicians by suggesting that historical aboriginal rights are "ill-defined." Justice Bastarache observed that many Atlantic Canadians think that the high court invented rights that are not in the ancient treaties and that the public may see the court as unfairly favouring natives.

You might think that the high court's backtracking and self- criticism on Marshall, not to mention the hornet's nest of conflict it stirred up in the East Coast lobster fishery, would have made lower court justices cautious about writing creatively generous interpretations into their rulings on aboriginal rights cases, but evidently not.

On Feb. 5, Nova Scotia Associate Chief Justice Michael MacDonald ** overturned the conviction of a Mi'kmaq who had been found guilty of deer-jacking -- hunting at night using a light -- on the basis of supposed treaty rights.

You have to wonder what Justice MacDonald and the majority in Marshall were thinking. Do they imagine that they can create a race- based distinctions and two-tier laws in areas of common stakeholding without all hell breaking loose, especially on the specious basis of alleged "treaty rights" that were never mentioned in the original treaties?

I have news for them, and for the gutless politicians who have chosen to lead by following this judicial activism: it isn't going to fly. They should review the outrage being expressed in letters to the Editor columns of Nova Scotia newspapers over Justice MacDonald's deer-jacking ruling.

Ordinary Canadians have had just about a bellyfull of this tomfoolery. Nova Scotia MLA Brooke Taylor, who is currently co- ordinating a petition demanding that Justice MacDonald's ruling be appealed, says that in nine years of public life he has never seen his constituents more upset and outraged than they are over this matter.

The central problem here, besides the ideology of liberal guilt, is the notion of special status for a certain category of Canadians based on race.

This writer, along with I'm confident a substantial majority of the Canadian public, believes that there should be only one class of citizen and the same laws and privileges should apply to all citizens equally.

Special status based on race is unacceptable. What is it that made Apartheid repugnant and evil in South Africa, but a principle championed and advocated by the courts and the government here in Canada?

There are many problems with the notion that treaties European colonizers negotiated with (or imposed on) aboriginals hundreds of years ago should be considered the equivalent to agreements between sovereign nation states, even in the context of what's actually articulated in them. University of Calgary political scientist Tom Flanagan has observed that this "doctrine of equivalence" is a theory originated by anthropologists and advanced by political activists.

The fact is, North American aboriginals were outgunned and eventually outnumbered by the European invaders. They did not win the Indian wars.

This sort of defeat has happened to many peoples over the centuries and their sovereignty, such as it was, ceased to exist.

In short, the old treaties should be declared null and void, and torn up, to be replaced by whatever transition process will be necessary to integrate aboriginals into mainstream society as full equals. Yes, that's assimilation. It's not a dirty word. It is a very un-racist concept. It is also, ultimately, the only politically viable solution if there is to be social peace.

Are aboriginals Canadians or not? That is the operative question here. If they are, then this treaty rights fiasco must stop. And if aboriginals don't want to be Canadians on an equal footing with their fellow citizens, the only viable alternative to assimilation is real independence, which would involve decades of negotiation over territorial partition and jurisdiction, and in the end, a shutoff of the transfer of funds from non-aboriginal Canadian taxpayers.

Those are the options. What is it going to be?

(Charles Moore writes from Nova Scotia.)