An attempt at the 'in a nutshell' description.
In August of 1998, 140 commercial gillnetters (amongst their ranks were aboriginal and non-aboriginal folks holding valid commercail licences for the area in question) held a protest fishery in Area 29 (Georgia Strait). The protest was held during a time when the area was closed to legally licenced commercial fishers, but WAS open for Pilot Sales Fisheries operated by three First Nations bands (Musqueam, Burrard and Tsawwassen Indian Bands). The purpose of the protest fishery was to hopefully bring a constitutional challenge to the legality of racially segregated fisheries within BC.
The hope was realized, and Judge W. J. Kitchen was presented the case through April and May of 2003. In June of that same year, the Judge found in favour of the accused, and declared racially discriminate fisheries ILLEGAL! In his Reasons for Judgement, Kitchen concludes with: "The pilot sales program has not met this standard (referring to balancing the interests of all members of society); the program was misguided in conception and has been insensitively implemented and maintained..." "The most troubling aspect of this discrimination is that it is government sponsored..." "When racial discrimination or a semblance of it is identified, any continuance of it should not be permitted. The application is denied, and the charges are stayed, effective immediately." So charges against the protesters were dismissed, and the Pilot Sales program declared nonconforming with the Constitution and therefore illegal in nature.
This of course insensed First Nations groups who had become quite used to reliance upon these lucrative fisheries. In their anger, they turned the heat and the screws up on the Federal Government (who initiated the illegal sales and fisheries in the first place) to appeal the decision on their behalf. Our spineless Gov, instead of admitting to the original error, and in order to pacify the FN groups, agreed to do just that. And, now THEY (the Fed's) are.
From the AFN Statement: "I am pleased to see that the government is taking positive action to ensure our right to share in the fishery resources of Canada is respected and upheld,” - Assembly of First Nations National Chief Phil Fontaine.
I believe this was actually more than somewhat focused upon in the original case, and the judge does indeed mention so. However, he based his decision at that time upon Equal Access and REAL sharing of the fisheries resources, as opposed to racially discriminated and thus preferentially segregated access to such fisheries (see last few paragraphs of the Reasons for Judgement).
It will be interesting to see the reasoning the Gov trots out for the appeal in light of the previous decision, and the next judgement that ensures.
So, how do YOU feel about that?