If everyone is given the right to everything then eventually, no one will have the right to anything.
Civil rights (or civil liberties as they are sometimes called) have an important purpose in a democracy: to prevent the majority from using their votes to create the ‘tyranny of the majority’ over minorities. That is why, in 1982, Canada constitutionalized minority protection in our Charter of Rights and Freedoms. This was followed by federal and provincial human rights laws prohibiting discrimination on the basis of race, religion, sex and other important characteristics of minorities.
The theory is that the majority does not need legislated rights because their votes determine who is in government and what that government legislates, but minorities need to have certain basic rights recognized and protected. But as unpopular as it may be to say it: granting more new rights has its limits.
The rights granted to one group will sometimes collide with the rights granted to another group. We see this today quite dramatically with trans activists’ assertion that trans women are women and some feminists’ assertions that they are not, and should be excluded from women’s sports, women’s shelters, women’s public washrooms and women‘s prisons. The trans activists have won. Whether trans women are women is no longer a matter of opinion. It is now the law.
Since the adoption of the Charter, claims for more rights have continued to proliferate, and new rights continue to be granted. We only increase the number of rights, we never reduce them. We can’t keep granting increased rights in perpetuity. At some point the proliferation of conflicting rights will generate social conflict and increasing polarization between various rights holders. With what is called “cancel culture,” some Western democracies have now reached that point.
Rights, like money, are the currency of comfort. But just as printing too much money inflates and devalues the dollar, printing too many rights makes them increasingly difficult to enforce. I have written about this here in the context of the Nova Scotia lobster fishery, as but one example. If every group is given the right to everything then eventually no one will have the right to anything.
That raises an interesting question: how do rights become recognized and strengthened? If I claim that I have the right to X, does my saying so make it so? That depends on who, if anyone, turns my claim into a recognized right.
In both the Donald Marshall case and UNDRIP (the United Nations Declaration on the Rights of Indigenous People), First Nations advocates and their supporters – including federal politicians – have vastly overstated the legal rights actually granted.
In the Donald Marshall case the accused was acquitted only for fishing for eels. The court emphasized that this acquittal did not apply to any other species. Despite this clear judicial language the Marshall decision has been mythologized as granting the Nova Scotia Mi’kmaq the right to fish for whatever species they want, in or out of season, albeit only for a modest livelihood (whatever that means). Such rights, like eels, are slippery creatures.
The Minister of Fisheries and Oceans, in her recent appearance before the House of Commons Committee on Fisheries and Oceans, implied that her government had accepted the story that the Supreme Court of Canada in Marshall had constitutionally recognized open season on lobsters for indigenous fishers. Think about her approach. She was in negotiations, seeking the indigenous fishers’ consent to some limits on indigenous lobster fishing rather than imposing the limits necessary for species conservation, which she has the power to do under the Fisheries Act. Nor was she requiring equity with nonindigenous fishers. She appeared to be giving rights to indigenous fishers – beyond what the court ordered in Marshall – and doing so without legislation or a debate in Parliament.
Similarly, on UNDRIP, Independent Indigenous Senator Murray Sinclair told the CBC on December 12 that “Indigenous people now will be able to negotiate with a stronger hand” under UNDRIP. As I have explained here, UNDRIP is redundant in Canada today. It grants no rights that Canadian indigenous people don’t already have, and have had since the Queen signed our Charter of Rights in 1982.
To argue that UNDRIP will give Canadian First Nations a stronger hand is to anticipate a new right that does not yet exist. However, Senator Sinclair’s assertion of this nonexistent right of veto over resource projects may become a self-fulfilling prophecy. If the Canadian government now creates that right by enacting a new law that the government pretends is based on UNDRIP, the veto right will then exist.
The granting of too many rights becomes self-defeating. It creates fear among the majority of the threat of growing social disintegration, as minorities’ demands for more rights increasingly constrains majorities.
There is a cost to this social engineering. It creates a risk of an electoral backlash from what Richard Nixon famously called “the silent majority”. There are many who feel increasingly left out of the government’s feeding victimhood claimants with new coercive rights.
A government excessively focused on minority rights moves the political pendulum too far, usually to the left. From that position it will tend to swing too far to the right, bringing in authoritarian leadership that either repeals or effectively undermines previous rights, sometimes severely.
Limiting the grant of new rights preserves the value of established, older rights, and reduces the amplitude of the pendulum’s swings. Saying “no” to demands for new rights requires political self-restraint. But unless there is some restraint on the swing to the left there will be no restraint on the inevitable swing to the right.