Madam Speaker, on February 9 I questioned the minister of fisheries on his response to a British Columbia provincial court decision which ruled that aboriginal communal fishing licence regulations were invalid.
In granting me an absolute discharge for participating in a protest fishery that challenged the legality of the minister's regulations, Judge Thomas noted that I had acted in good faith and served notice that the courts of British Columbia will not enforce the minister's program of racially based commercial fisheries.
Judge Thomas' words are clear and unambiguous. The regulations allowing for an aboriginal commercial fishery “have no legal validity and are therefore null and void”. Judge Thomas stated “the fishery was not lawfully open to anyone”.
Once the courts have ruled a set of regulations to be invalid, it is not open to the minister to say the regulations are valid. Yet the minister has done just that. Within an hour of the conclusion of my sentencing hearing, the minister issued a statement saying “I appreciate the views of the judge in this case. However, opinions are opinions. Such opinions are not binding on superior courts of British Columbia”.
The minister stated further that this decision does not suspend or nullify the aboriginal communal fishing licensing regulations. He noted that it does not preclude the department from authorizing aboriginal commercial fishing under the existing regulatory regime.
The minister is right when he says that the decision does not bind the Supreme Court of British Columbia. But it does bind the minister. The Supreme Court of British Columbia can overturn a lower court decision, but the minister of fisheries cannot. That is the rule of law.
It is up to the courts to decide if regulations established by the government are consistent with an authorization given by Parliament. When the court decides that regulations were not authorized by Parliament, it is not open to the minister or the government to ignore the clear and unambiguous words of the court. The government may write regulations, but it does not have the last word on their validity or legality.
Judge Thomas challenged the government on February 6 stating that if it was not happy with his decision, then it must appeal it to a higher court. Judge Thomas concluded his remarks to the court on February 6 with the following admonition. He said “It is, I think, appropriate to note that the rule of law does exist, not just for individuals but also for the government”.
This country and this Parliament is founded on the rule of law. The crown made much of that at my sentencing hearing on February 6.
On February 23, 1998 the minister was quoted in the Hill Times as saying “it would be a strange impression for a minister to give, to break the law”. On March 6, 1998 the minister was quoted in the Globe and Mail as saying “but you have to recognize that everyone has to obey the law, or the law breaks down”.
I challenge the minister to live up to his words, to obey the law and respect the decisions of our courts.
If the minister believes that the judge has erred in law, then he must find a way to take the matter to a higher court for a ruling on the issue. Until that is done, the law in British Columbia is clear. The aboriginal communal fishing licences regulations are invalid and have no legal authority.
It is now time that the minister acknowledged that the government is not exempt from the rule of law. It is now time for the minister to stop using the courts to harass fishermen who protest fisheries regulations already found to be invalid by the courts.
Currently 30 fishermen are before the courts on trumped up charges. Such a flagrant abuse of power smacks of jackboots and the KGB, not the fisheries minister in a democratic society.