The rule of law and the precept that all are “equal before the law” is the cornerstone and fundamental building block essential to any democracy. This is not new. The primacy of this philosophy, the conditions necessary for a democracy dates back to the Athenians in 508 BC.
This young country of Canada is experiencing fundamental growing pains; forced into uncomfortable debate and forcing us to look inwards. The accepted principles of the Athenians over centuries has always been challenged, always tested, warped and bent, sometimes to the point of breaking to fit the popular or favoured political dialogue of the day.
The latest Canadian confrontation is being played out in Nova Scotia. One side is supported by a social democratic agenda, an amenable and pliable media, and liberal somewhat fuzzy judicial interpretation of the current Canadian laws. On the other side is a group of hardened Maritimers who have a bitter taste in their mouths, who feel that their livelihoods are being challenged in a truly fundamental and life-altering way. One side burdened by the need to satisfy the mystifying mix of thoughts of restitution, reconciliation and righting the wrongs of the past. The other side holding to the simple thought of what is fair.
In the middle— a tasty crustacean —the ignoble lobster, standing side by side with the seemingly forever under siege, Royal Canadian Mounted Police. Your Federal Police force once again being hammered from all sides, this time even by their very own government bosses. Endless criticism, some but not all of it underserved.
As much as most Canadians often choose to look the other way, Nova Scotian images of Peggy’s Cove dancing in their heads, those depictions are being shattered by pictures of burning vehicles and buildings. Allegations of it all being about racism is resonating off television news screens, the news readers heads nodding in practised dismay at those primitive fishers. The tinder dry fuel to this confrontation is money of course, but it belies a much more fundamental question for Canadians and Canadian democracy.
The question is simple, but the answer is deeply buried in politics. Can a sovereign nation be constructed and divided into two parts? Can a government survive when those within it are unequal before the law? Is it possible that one group could function inside another nation but separate in its laws and its customs while still remaining financially dependent?
One side, the Indigenous, believe it is possible, in fact they are demanding it. In their world there is no room for debate, no room for consensus it is all about balancing the scales of justice.
The government of the day side with the Indigenous and clearly believe it is indeed possible but they are not convinced enough to pull the heavy handed political trigger that would be necessary to bring it to fruition. The other side, representing the majority, at least in this small part of the country, say that it is impossible and they are willing to violently battle its application.
It is the battle between the Siqekne’katik and the lobster fishermen of St. Mary’s Bay. The Indigenous once again claiming their right to independence, their right to self-determination and governance of the land, the resources, and their culture. Their cause and beliefs emboldened by a wishy-washy and grey interpretation of Canadian law, a fence straddling Supreme Court, and our political representatives who have become professional apologists; unable to extricate themselves and look beyond a constant dialogue of needing to right historic wrongs.
It has been a long and meandering road through Parliament and the courts, often one clarification only to be met with two more obfuscations. The laws and their interpretation have strayed and meandered, with no apparent or pressing timeline.
We can go as far back as the Friendship Treaties of 1760 and 1761, which were referred to in the landmark Marshall case of 1999. It was the Marshall case which affirmed a right to hunt, fish, and gather in pursuit of a “moderate livelihood”.
The Nisga’as Final Agreement in 1973 gave the right to self-government of 2,019 square kilometres of the Nass Valley. Self-government and the debate over structure and policy have not advanced much further.
But it was the Marshall case which spurred the recent fight in the lobster fishery. On September 17 of this year the Mi’kmaq, on the 21st anniversary of the Marshall case, decided that now was the opportune time to start a “commercial fishery”.
The Department of Fisheries and Oceans have continually tried to be on the side of the righteous and in 2000 had launched the “Marshall Response Initiative”. Under this program, from 2000 to 2007 the department provided the Indigenous with $354 million which provided licences, vessels, and gear in order for the Indigenous to “increase and diversify”. It even provided training to 32 First Nations. Part of these agreements was that the Mi’kmaq would “abstain from fishing out of season”.
In 2007 the DFO then launched the Atlantic Integrated Commercial Fisheries Initiative. This provided even further funding to “meet long term objectives”, including “horizontal expansion…the development of fisheries related business opportunities” for the Indigenous.
Now, the Mi’kmaq believe that those treaty rights allow for them to disregard the fishing season, to live and fish outside of the laws and regulations faced by the non-Indigenous.
The political and legal debate in this country began to turn in favour of the Indigenous with the Constitution Act of 1982. Section 35 signalled a change, when protection was given for a spectrum of different indigenous and treaty rights including “site specific exercise of food harvesting”.
Here is the clause and the centre of the argument:
“The accused treaty rights are limited to securing “necessaries” (which should be construed in the modern context as the equivalent to a moderate livelihood) and do not extend to the open-ended accumulation of wealth…what is contemplated is not a right to trade generally for economic gain, but rather a right to trade for necessaries. The treaty right is regulated right and can be contained by regulation within its proper limits”.
Further backing away from outright self-governance, the court stated that the right to fish could be “infringed by government in terms of protecting the environment or endangered species”.
The Supreme Court went on to interpret or define those rights of food harvesting to mean all those rights that had been practised by the Indigenous, those that were “distinctive and exercised before contact with the Europeans.” Commercial trade was not one of those rights they said, but fishing for food or ceremonial purpose was.
The Sparrow case in 1990 regarding the right to fish and then the Royal Commission in 1996 took it back to espousing the “right to self-government”. A belief that an “indigenous justice system”, was indeed warranted, separate from the rest of Canada.
The Mi’kmaq and in particular the Sipekne’katik Band, has now decided that it was time to step over the line once again, encouraged by the Federal government, and have now taken the view that it has not “ceded rgulatory authority of their fisheries to Ottawa”.
So where did all this leave the handful of Mounties responding to an enraged crowd of lobster fishermen in Middle West Pubnico on October 13th, 2020. It left them uncomfortably standing by while the fishermen pissed on and set fire to a van, then watched as they burned a warehouse down. A large crowd against a few Mounties is something that few cops with any intelligence would saunter into; although to hear the Indigenous Minister, Marc Miller, that is what he expected them to do.
Miller and the Honourable Carolyn Bennett seem to have taken the view that they are advocates for the Indigenous— not Ministers representing all. Maybe one should not expect these Ministers from the urban liberal conclaves of Toronto and Montreal to have any real understanding of the Nova Scotia fishers.
It is clear that they are not getting a sense of the rage which is building throughout this country, the polarization a direct result of this practise of appeasement. When that appeasement goes to the point of treating some individuals as different from the others under the law.
AFN Chief Perry Bellegarde trumpets the victimization formula at every opportunity, convinced that to reconcile the sins of the past one must favour one group over another. Systemic inequality is both the historic problem and now its proposed solution.
The fact that the non-Indigenous, the commercial lobster fishermen and women are not all locked up, the fact that the military has not been hastily dispatched has incensed Bellegarde and his followers.
“Given months of civil unrest and multiple issues relating to the First Nations people across this country I will be writing to the PM, to express that we have lost confidence”…there is a need to “replace Lucki with someone who will focus on public safety and combatting racism”.
Commissioner Lucki must have been thunderstruck. Lucki during her rise has continually polished her medals from her work in Indigenous understanding and inclusion. But even Ms. Lucki did not jump high enough for the likes of Mr. Bellegarde. How ironic would it be that it is this issue which drives Trudeau to remove the ineffectual Lucki.
None of this is about racism. None of this is about Indigenous versus others. This is about equality before the law. Our representatives can change the laws, right any wrongs they feel necessary but they can not and should not stray from the core of principles which are fundamental to our very democratic survival. It is hard to imagine our country going forward otherwise.
This particular dispute will likely be papered over with further money. It seems to be the only tool on the Liberal belt. Undoubtedly, more fires will erupt with continuing violence and no one on either side will be satisfied. Not until someone, anyone, decides that the ultimate question needs to be answered.
The lobster is an accurate symbol. Lobsters are cannibals, they will eat each other. Canadians and its special interest groups, one small bite after another, are eating away at Canada’s very framework.