OldBlackDog
Well-Known Member
From Bob Hooton’s site.
A compelling article by author John Robson and published in the National Post almost 16 months ago. Substitute salmon and steelhead in British Columbia for lobsters in Nova Scotia and what have we got?
John Robson: You can't give the same fish to different people. But the government tries to. Our elites sincerely mean to give aboriginals traditional rights to the same water they also want to keep under the existing fishery
John Robson
October 17, 2017 11:50 AM EDT
The Nova Scotia aboriginal lobster fishery dispute has bad governance written all over it. Broken promises, unclear rules, a breakdown of trust, even extralegal violence. But look deeper and you’ll find even worse governance.
Aboriginals are frustrated that negotiations with the federal government for a clear permanent settlement, here as elsewhere, are taking forever to get nowhere. Non-aboriginals are frustrated that the law seems both unequal and unenforced. And behind this practical mess, as usual, lies a conceptual one.
The problem began, in the narrow sense, with the classic 1999 Supreme Court ruling R. v Marshall, which held that Mi’ kmaq and Maliseet had and did not have an unlimited right to harvest resources, including eels. And let me emphasize here that, contrary to common usage in which “the government” wins or loses in court, the judiciary is a branch of government.
Behind this practical mass lies a conceptual one that in this case tripped over its own feet. In its initial September 1999 ruling, the court seemed to grant what many aboriginal activists want and expect, namely exemption from Canadian law under nation-to-nation treaties that predate Confederation. But when people realized what the court had said, including its own members, it issued a hasty “clarification” two months later that, in fact, aboriginals were not exempt from Canadian law.
Aboriginals naturally felt betrayed. And the situation has gotten worse since. As the Post just noted about the increasingly acrimonious lobster fishery question, the federal executive branch of government responded to the initial post-Marshall crisis by signing “interim” deals with various aboriginal groups in the Maritimes and Quebec that shovelled money at them to buy fishing gear and licenses. But talks on a permanent settlement have dragged on and on with no end in sight.
It is possible to ascribe this result to familiar generic failings of government, the glacial pace of its impenetrable processes due to perverse incentives. In private life, time is money. In government, it’s not, because nobody is risking their own assets. Nobody from Justin Trudeau to the humblest clerk will lose their mortgaged house if interest payments on the national debt become unmanageable. And prosecutors and judges get paid every day a court case drags on, unlike defendants or plaintiffs. (Typically, the 1999 Marshall decision concerned eels caught and sold in 1993.)
In private life, time is money. In government, it is not.
So aboriginals might think it’s just the same old same old. High-sounding promises, endless “Meegwetches” and “we’re on traditional territory” from politicians, but at the negotiating table all maze and no cheese. Like oil companies with pipelines. Everybody gets it. Right?
Were it so it would still be inexcusable, especially with so much at stake. But it’s not. And here I emphasize again that the court is part of “the government,” because its behaviour over aboriginal fisheries exemplifies the modern style of government that tries to give everything to everybody and is genuinely stunned to find that it can’t. Nowhere is the conceptual mess worse than on the aboriginal file.
Our kindly elites sincerely mean to give aboriginals broad traditional rights to the same water they also intend to keep under the existing fishery. But it just can’t be done, a point understood within the bureaucracy. Thus, the rubber must never hit the road in these negotiations. And that’s not governing.
To govern is to choose. Government is force, and when it makes decisions, some people win, others lose, and if you refuse to go along you go to jail. Which is why government should be restricted to doing only those things it alone can do, and not be expected to do them very well or soothingly. But reaching a clear decision on key aboriginal issues is one thing it must do.
Aboriginals either are, or are not, constitutionally entitled to “self-government,” in the broad sense of being separate polities that make their own fundamental law. You cannot give them Nova Scotia while keeping it for everybody else. Not the fish, not the trees, not the land.
You can give some of it to one group and some to another. And by “some of it” I don’t necessarily mean lines on the ground. You could let people of particular races, however legally defined, catch only so much of this fish at that time of year while others may catch more or at different times. But you can’t give the same fish to two different people.
Governments want to. Politicians want to. Judges want to. And I guess it’s nice in a way that they want everyone to have lots of everything. But the miracle of the loaves and the fishes is not within their capacity. It would be bad enough if they were pretending to think it was. The real problem here is that they do think so.
The result of this high-minded confusion is a breakdown of governance and trust that hurts everyone.
National Post
A compelling article by author John Robson and published in the National Post almost 16 months ago. Substitute salmon and steelhead in British Columbia for lobsters in Nova Scotia and what have we got?
John Robson: You can't give the same fish to different people. But the government tries to. Our elites sincerely mean to give aboriginals traditional rights to the same water they also want to keep under the existing fishery
John Robson
October 17, 2017 11:50 AM EDT
The Nova Scotia aboriginal lobster fishery dispute has bad governance written all over it. Broken promises, unclear rules, a breakdown of trust, even extralegal violence. But look deeper and you’ll find even worse governance.
Aboriginals are frustrated that negotiations with the federal government for a clear permanent settlement, here as elsewhere, are taking forever to get nowhere. Non-aboriginals are frustrated that the law seems both unequal and unenforced. And behind this practical mess, as usual, lies a conceptual one.
The problem began, in the narrow sense, with the classic 1999 Supreme Court ruling R. v Marshall, which held that Mi’ kmaq and Maliseet had and did not have an unlimited right to harvest resources, including eels. And let me emphasize here that, contrary to common usage in which “the government” wins or loses in court, the judiciary is a branch of government.
Behind this practical mass lies a conceptual one that in this case tripped over its own feet. In its initial September 1999 ruling, the court seemed to grant what many aboriginal activists want and expect, namely exemption from Canadian law under nation-to-nation treaties that predate Confederation. But when people realized what the court had said, including its own members, it issued a hasty “clarification” two months later that, in fact, aboriginals were not exempt from Canadian law.
Aboriginals naturally felt betrayed. And the situation has gotten worse since. As the Post just noted about the increasingly acrimonious lobster fishery question, the federal executive branch of government responded to the initial post-Marshall crisis by signing “interim” deals with various aboriginal groups in the Maritimes and Quebec that shovelled money at them to buy fishing gear and licenses. But talks on a permanent settlement have dragged on and on with no end in sight.
It is possible to ascribe this result to familiar generic failings of government, the glacial pace of its impenetrable processes due to perverse incentives. In private life, time is money. In government, it’s not, because nobody is risking their own assets. Nobody from Justin Trudeau to the humblest clerk will lose their mortgaged house if interest payments on the national debt become unmanageable. And prosecutors and judges get paid every day a court case drags on, unlike defendants or plaintiffs. (Typically, the 1999 Marshall decision concerned eels caught and sold in 1993.)
In private life, time is money. In government, it is not.
So aboriginals might think it’s just the same old same old. High-sounding promises, endless “Meegwetches” and “we’re on traditional territory” from politicians, but at the negotiating table all maze and no cheese. Like oil companies with pipelines. Everybody gets it. Right?
Were it so it would still be inexcusable, especially with so much at stake. But it’s not. And here I emphasize again that the court is part of “the government,” because its behaviour over aboriginal fisheries exemplifies the modern style of government that tries to give everything to everybody and is genuinely stunned to find that it can’t. Nowhere is the conceptual mess worse than on the aboriginal file.
Our kindly elites sincerely mean to give aboriginals broad traditional rights to the same water they also intend to keep under the existing fishery. But it just can’t be done, a point understood within the bureaucracy. Thus, the rubber must never hit the road in these negotiations. And that’s not governing.
To govern is to choose. Government is force, and when it makes decisions, some people win, others lose, and if you refuse to go along you go to jail. Which is why government should be restricted to doing only those things it alone can do, and not be expected to do them very well or soothingly. But reaching a clear decision on key aboriginal issues is one thing it must do.
Aboriginals either are, or are not, constitutionally entitled to “self-government,” in the broad sense of being separate polities that make their own fundamental law. You cannot give them Nova Scotia while keeping it for everybody else. Not the fish, not the trees, not the land.
You can give some of it to one group and some to another. And by “some of it” I don’t necessarily mean lines on the ground. You could let people of particular races, however legally defined, catch only so much of this fish at that time of year while others may catch more or at different times. But you can’t give the same fish to two different people.
Governments want to. Politicians want to. Judges want to. And I guess it’s nice in a way that they want everyone to have lots of everything. But the miracle of the loaves and the fishes is not within their capacity. It would be bad enough if they were pretending to think it was. The real problem here is that they do think so.
The result of this high-minded confusion is a breakdown of governance and trust that hurts everyone.
National Post
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