CLIPPING: Carpay: Federal government should stop race-based fishing po

Dividing the catch

John Carpay, National Post

Published: Tuesday, July 22, 2008

On June 27, the Supreme Court of Canada gave its stamp of approval to
racially segregated commercial fisheries in British Columbia, and it
did so in the name of "substantive" equality. In R. vs. Kapp, the
court upheld the constitutional validity of a "pilot" sales program
introduced in 1992 under prime minister Brian Mulroney. This program
created a separate commercial fishery for the private benefit of
individuals with bloodline ties to certain Indian tribes, while also
allowing these same individuals to fish a second time in the public
commercial fishery left over for everyone else. The program brought an
abrupt end to several decades of racial integration and racial harmony
which had been enjoyed by one of the most ethnically diverse
workplaces in Canada.

The court's decision was a slap in the face for Richard Nomura and
other Canadians of Japanese origin, whose ancestors faced overt and
vicious discrimination in B. C.'s commercial fishery during the 1920s.
Starting in 1919, the federal government openly pursued a policy of
eliminating "Orientals" from the commercial fishery by reducing the
number of licenses issued to Japanese Canadians by 25% annually. The
federal fisheries department issued annual reports on progress made
toward the goal of ridding the fishery of the "yellow peril," in order
to reserve the industry exclusively for "Whites and Indians."

Associations of Japanese-Canadian fishermen challenged these racially
discriminatory policies in court. Intervening before the Supreme Court
of Canada in 1928 in Reference Re: Fisheries Act, Japanese Canadian
fishermen argued that the fisheries minister could not exercise his
discretion so as to deny a fishing license on the basis of race. The
Supreme Court agreed, ruling that "any British subject residing in the
province of British Columbia, who is not otherwise legally
disqualified, has the right … to receive a license."

In R. vs. Kapp, the Supreme Court of Canada reversed its 80-year-old
precedent, ruling that race-based policies and programs do not violate
the Charter's section 15 equality rights as long as the government
declares that the program is intended to help a disadvantaged group.

The court also ruled that it doesn't matter whether a program is
actually effective in helping the disadvantaged group. In R. vs. Kapp,
the federal government did not dispute the trial judge's findings that
"there was no suggestion anywhere in the evidence that any of the
money from the pilot sales fishery went to any of the real
disadvantages actually experienced by the bands … The
Department expressed the hope that the pilot sales fishery would
provide stability to the commercial fishery by improving Aboriginal
catch data, increasing co-operation in enforcement and reducing
protest and confrontation. The weight of the evidence is that none of
this has occurred and the program has been counterproductive in each
of these areas." These findings of fact were not appealed. This means
that race-based policies and programs, no matter how ineffective, can
be justified by a government declaring its good intentions.

Further, the commercial fishery is the last workplace in Canada where
aboriginals would need an affirmative action program. Working under
rules that apply equally to all Canadians, Aboriginals have enjoyed
great success in B. C.'s commercial fishery, and have never faced
discrimination in that industry. Aboriginals make up about 4% of B.
C.'s population, but more than one-third of B. C.'s fishermen, license
holders and vessel owners are aboriginal. Aboriginals were among the
protesting fishermen who launched the constitutional challenge to
race-based fisheries which culminated in the Kapp ruling.

In short, the Supreme Court upheld as constitutional a race-based
policy which is ineffective and counterproductive, and which applies
to a workplace that doesn't need it. This decision sets a low standard
for governments, giving them a free hand to initiate and continue with
affirmative action programs that are useless and unnecessary.

On the positive side, nothing in Kapp requires any government in
Canada to initiate, or continue with, policies or programs which
discriminate on the basis of race or other criteria. One hopes the
Harper government will understand the court's decision does not
require it to continue with the racial segregation of B. C.'s
commercial fishery. Nor does Mr. Harper need the consent of Parliament
to restore racial equality there; he can, and should, do this by using
his executive power to abolish race-based regulations.

-John Carpay is executive director of the Canadian Constitution
Foundation and represented the Japanese Canadian Fishermen's
Association before the Supreme Court of Canada in R. vs. Kapp.

Copyright © 2007 CanWest Interactive, a division of CanWest
MediaWorks Publications, Inc.. All rights reserved.

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