Any fair-minded Canadian would agree with a recent conclusion about the Burnt Church fishing disputes. The Supreme Court of Canada, said a two-person panel, "did not intend to create chaos with its rulings."
If not chaos, however, then something close to it flowed from the court's two 1999 rulings, the second of which embarrassingly had to clarify the first.
The court, of course, had little appreciation for the facts on the ground in New Brunswick's Miramichi Bay, so its second ruling seemed slightly perplexed at the uproar caused by the first. But when a court reads new and debatable meanings into old treaties, with little understanding of today's circumstances in the affected areas, the result might make matters worse, at least in the short term.
Which is what happened in Burnt Church and why, three years later, Ottawa created a panel to review the situation and recommend how continuing tensions might be eased.
The panel report, by former chief Roger Augustine and Judge Guy Richard, is an unblinkered review that offers many lessons, one of which should be mandatory reading in the nation's law schools and among Canada's aboriginal leadership.
Some of Burnt Church's leaders -- the band's affairs are now under trusteeship, the result of completely dysfunctional management -- told the panel, as they had the government, that they did not accept Canadian sovereignty.
The Esgenoôpetitj "First Nation," claiming "inherent sovereignty," asserted rights, including the right to run the fishery as it saw fit, that the panel interpreted as a "unilateral declaration of independence." The panel correctly rejected this claim because it denies "the legitimacy of Canada as a country."
An isolated claim, you might shrug. But last week in Ottawa, a conference bringing together the native industry -- aboriginal leaders, government officials, policy wonks and lawyers -- heard variations on this theme, that Canada can only treat with natives on a "nation-to-nation basis." This philosophy impregnated the Royal Commission on Aboriginal Affairs. It is now accepted dogma by aboriginal leaders. It is ingrained in the nation's law schools, propounded there by influential legal scholars, some of whose writings have been favourably cited by the Supreme Court. And it is deeply dangerous for Canada.
Not because Canada is going to fall apart or become a Swiss-cheese country pockmarked by Bantustan native "nations," although that would be the result if this philosophy were accepted by Canadians. No, it is dangerous because it leads to completely unrealistic goals and unrealizable expectations that poison efforts to make progress on improved relations.
Burnt Church illustrated the problem. The Department of Fisheries and Oceans, whipped on by the court ruling that natives had a treaty right to earn a "modest living" from an eel fishery, bought non-native licences for three to five times their market value.
The DFO transferred the licences to the natives, but only a quarter of them were taken up. Many non-natives who had worked part-time on the lobster fishing boats, meanwhile, were idled, and divisions arose within the non-native community between those whose licences were bought for grossly inflated prices and the rest.
The natives demanded a fall fishery that would have been disastrous for the lobster stocks, as the panel correctly noted. The DFO, however, was reluctant to enforce all the rules, fearing violence, adverse media reaction and the usual accusations of "racism," despite the Supreme Court's repeated insistence that the government had to enforce conservation.
The lobster transferred to natives far exceeded what they needed for food and ceremonial purposes, the panel found. That's what non-native fishers along the Fraser River in British Columbia believe has happened since the Supreme Court's Sparrow decision gave natives the right to fish for food and ceremonial purposes.
The natives considered the dispute partly about fishing but mostly a cri de coeur about their impoverishment. Only a few natives were going to fish anyway, but the ability to do so represented a tiny step toward economic improvement.
Their schools were awful, the band council corrupt, infrastructure crumbling, job prospects few, alcoholism rife, resentments great. The average income of an aboriginal male was 42 per cent lower than the average for the county. But, after taxes, the panel found the gap dropped to only 3 per cent to 5 per cent.
Two poor, aggrieved communities therefore confronted a ruling dropped from on high and policies made on the run by harried governments. Why, oh why, did the court not give everybody at least a chance to adjust to a ruling that overturned the lower court judgment, surprised almost every legal scholar and was bound to complicate an already complicated situation?