Until last summer, race-based federal policy was creating two classes of British Columbia fishermen. Taking absurd liberties with a 1990 Supreme Court ruling that affirmed the right of Indian bands to take fish for food, social and ceremonial purposes in otherwise regulated fisheries, the Department of Fisheries and Oceans (DFO) had launched a pilot program aimed at creating native-only commercial fisheries. Rather than allowing all commercial fishermen the opportunity to make their living, fisheries were opened up to three B.C. aboriginal bands during special periods, leaving non-natives complaining that the stocks were depleted by the time they finally had a chance.
Not surprisingly, this discriminatory policy had disastrous consequences. Not only did it have a financial impact on communities, but also a social one. Whereas native and non-natives had previously enjoyed co-operative relationships, the program created racial tensions and jealousies that drove them apart. Even among aboriginals it caused problems, since those who held normal commercial licences wound up feuding with those taking advantage of the DFO program.
A year ago, following a House of Commons report that branded the policy a "dismal failure," Judge William Kitchen of the B.C. Provincial Court properly shut the programs down. Following a similar ruling by provincial Judge Brian Saunderson, Judge Kitchen stayed charges against 140 non-native fishermen who had staged a "protest fishery" in 1998 in opposition to the program. On July 29, 2003 -- the day after Judge Kitchen ruled that the native-only fishery qualified as "government-sponsored racism" -- the DFO announced the program's suspension.
Judge Kitchen's ruling undoubtedly struck a blow for fairness and equality. But its impact appears to have been short-lived: On Monday, last year's ruling was overturned by the B.C. Supreme Court. While Mr. Justice Donald Brenner acknowledged that the program has "an unfortunate history" and has "generated much ill will" in local communities, he ruled that good intentions outweigh its problems and that it does not violate the Charter of Rights and Freedoms. While the native-only fishery may accord certain groups "deferential" treatment, he said, "not all deferential treatment is discriminatory."
Perhaps not. But in this case it most certainly is discriminatory. It is not as though there is any evidence that aboriginals were underrepresented or discriminated against in the B.C. fishing industry in the early 1990s, when the program was first implemented. Rather, this was a case of the DFO choosing favourites from among a group of equals, and placing all others at a disadvantage based on their ethnicity. If that's not racism, what is?
If the DFO had any sense, it would abandon its ill-conceived initiative regardless of what the court has to say. But that seems unlikely, given that Justice Brenner's ruling resulted from a government appeal of Judge Kitchen's decision. The best hope, then, is that the inevitable appeals to come, which are likely to eventually wind up in the Supreme Court of Canada, will lead to the only sensible outcome: an industry in which fishermen succeed based on a single criteria -- their ability to catch fish.