Fisheries Convictions not a Deterrent and the "New" Minister of Aboriginal Relations

So many things have been happening in the past few weeks that it is hard to decide what to write about so I will cover a few of them.

On the 16th of May, 2011, John Cummins, was convicted of fishing in a closed time along with 87 other commercial fishermen. These charges stem from a protest fishery in 2002 on the Fraser River. According to the Globe and Mail, Mr. Cummins said he was proud to stand with 87 other commercial salmon fishermen and accept the court’s punishment for protesting what they call race-based fisheries, restricted to aboriginals. Mr. Cummins said this was the third time he had violated restricted Fraser River openings. These men were fined $200.00 for their first violation and $300.00 second time offenders.

Cummins went on to say in the same article, “It’s not disrespect for the law,” he declared. “The government was acting inappropriately, and this was a protest to get the matter before the courts.” This statement comes from a man who was a Member of Parliament when he flagrantly broke the law on all occasions and now heads up the newly formed BC Conservative Party. Cummins and the other fisherman intend to appeal the amount of their convictions and the Crown should cross appeal for more severe fines. First Nations, and all other people should be sending that message to the Crown.

When First Nations get convicted of fisheries offences, often times their boats, nets and catch are confiscated along with getting a very large fine.There is little equity with First Nations and other fisherman and in particular these charges. This is a minimal fine imposed against John Cummins by the Provincial Court Judge. When people are sentenced, it is supposed to be a deterrent for them committing the same offence again. For a third time being convicted, John Cummins and his friends have not been deterred in any way, in fact, they love being in the limelight so they can espouse their rhetoric about “race based fisheries” which the Supreme Court of Canada has rejected. $200 is laughable to people like John Cummins and one that he will never take seriously. The amount of negativity that John Cummins and other create by their insistent cries of "race based fisheries" and the atmosphere created on the waters when these men drop their nets in a closed time. More most be done to ensure that this conduct is not sanctioned by the BC Conservative Party, the public and certainly not by the Justice System.

MINISTER OF ABORIGINAL AFFAIRS: When PM Harper appointed his cabinet last week, he appointed John Duncan, Minister of Aboriginal Affairs. There was also a release that the Department will in due course be renamed to Department of Aboriginal Affairs and Northern Development. So the acronym will become AAND. Sounds like this government, we are always waiting for the AAND then what?….The rationale from the PM and Minister is that it better reflects the scope of the Minister’s responsibility. So let’s look at that. The Constitution of Canada s. 35 does define aboriginal people as the Indian, the Inuit and the Metis. The Constitution Act, 1867 s. 91(24) states that the Federal Government has jurisdiction of “Indians and Lands Reserved for Indians”. It is from this jurisdiction that the Indian Act and other laws relating to First Nations are passed as well as the fiduciary obligations of the Federal government.

1n 1939 a reference was taken to the Supreme Court of Canada to determine whether s. 91(24) included “Eskimos” as they were then called that lived with the province of Quebec. The court stated

The exclusive legislative jurisdiction of the Dominion Parliament under s. 91(24) of theB.N.A. Act over Indians extends to Eskimos, who, by well-established usage at the time the B.N.A. Act was enacted, were regarded as Indians throughout British North America and it is immaterial that there were no Eskimos within the original confederating Provinces, for the B.N.A. Act (s. 146) provided for the inclusion of the Hudson's Bay Co. lands, where the Eskimos then resided.” [1939] 2 D.L.R. 417 SCC

Based on this case, though it was restricted to the Eskimos in the province of Quebec, the federal government assumed jurisdiction over the Eskimos, now called Innu/Inuit/Inuvaluit.

No such case was taken with respect to Metis, but an Order in Council was passed for the Minister of Indian Affairs to be the Interlocutor for Metis and Non Status. It must be noted that several provinces have passed laws relating to Metis people including the Metis Settlements Act in Alberta. What this tells me is there is a shared jurisdiction between the Federal and provincial governments.  

The point of this is that there are differing laws, histories and rights associated with the Indians/First Nations, the Inuit and the Metis. The semantics of the name change could be significant if the Federal Government changes directions on First Nations rights, but the government cannot change the constitution without a long amendment process, nor change the large body of law relating to First Nations people. The name of the Department of Indian Affairs has gone through many iterations throughout the years and may do so again. We do hope that this does not perpetuate the myths that all indigenous peoples in Canada are the same. One tends to think so when you see many articles in the news recently talking about how aboriginal people in Canada should be pleased with Harper appointing two aboriginal MPS. The Health Minister Leona Aglukkaq is an Inuk and the Intergovernmental Affairs Minister is Peter Penashue is a former Innu leader from Labrador. While I congratulate these two individuals for their appointments, they are not First Nations and until we have First Nations people in government who know our rights, issues and struggle, there will not be any differences in government. In fact, such positive differences will never be felt until the Prime Minister is First Nations or a PM that fully supports First Nations rights and aspirations. One can only hope that changing the name of the Department to "Aboriginal" Affairs does not perpetuate the myth out there in that public that all aboriginal people are the same and have the same rights.

The 2006 Census reports that there are 1.2 million aboriginal people in Canada. 53% of which are First Nations. Census numbers are 5 years old. There are many First Nations communities and people who refuse to take part in the census so these numbers are not very accurate. Census requires self-identification and participation that doesn’t always happen. In 2006, there were 22 First Nations reserves that did not participate or complete the census. We are also in the middle of registration of the people who qualify for registration under the new amendments to the Indian Act that the government estimates at 45,000 but I think can be much greater. There needs to be better current, annual statistics on First Nations populations as this is what funding to First Nations is based on.

Clearly, the largest number of indigenous people in Canada are the First Nations/Indians and the government cannot change its responsibilities, laws, or make aboriginal people a melting pot of services and responsibilities through a name change of how they administer their government departments. The message First Nations are getting from this is that the government 


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