Monthly Archives: March 2010

collective Alzheimer’s?

Chance encounters or chance happenings are such a neat phenomena. Often these synchronous occurrences rise up from nowhere and strike us like that first beam of morning sunshine coming up over the hillside — or poking through the gray mass of cloud and fog if you live on the coast.

This is not really a post about those events — that’s a ten volume book… however, it’s certainly related.

The other day after sitting in a near-all-day meeting regarding salmon and “salmon-planning” I stopped by the used book store that was right across the street from the hotel where the meeting was at. In a matter of a few minutes of browsing I found two books that seem to fit quite seamlessly with my thought process of the day.

One, was the “Peter Principle” – the fun book from the 60s based on the theories of Dr. Peter. The principle suggests: “In a Hierarchy Every Employee Tends to Rise to His Level of Incompetence.” As suggested on Wikipedia the book is “a humorous treatise which also introduced the “salutary science of Hierarchiology”, “inadvertently founded” by Peter.

It holds that in a hierarchy, members are promoted so long as they work competently. Sooner or later they are promoted to a position at which they are no longer competent (their “level of incompetence”), and there they remain, being unable to earn further promotions. This principle can be modeled and has theoretical validity. Peter’s Corollary states that “in time, every post tends to be occupied by an employee who is incompetent to carry out his duties” and adds that “work is accomplished by those employees who have not yet reached their level of incompetence”.

I had certainly heard of the principle (and observed it more than I’d care to enumerate) but never seen the actual book.

The other book I found is by Canadian writer and thinker John Ralston Saul (husband of former Canadian Governor General Adrienne Clarkson). It’s the book “The Unconscious Civilization” from his 1990s CBC Massey Lecture.

“Not only do we seem to be devoid of useful memory, but when we do remember accurately it has little or no impact on our actions. It is as if, when we come to public action, our greatest desire it to generalize and institutionalize a syndrome resembling Alzheimer’s disease. One-third to one-half of the population of Western countries is today employed in administering the public and private sectors. In spite of having a larger and better educated elite than ever before in history; in spite of knowing more than we have ever known about ourselves and our surroundings, we actively deny the utility of public knowledge”

Today I am sitting in an all day meeting discussing a “model” – a simulation program – for trying to better manage sockeye salmon.

And, yet, estimates suggest somewhere close to 100,000 people in B.C. participate in various salmon-related efforts — streamkeeping, stream rehabilitation, stream monitoring, etc.

In almost every First Nation community are folks with a wealth of knowledge about salmon, a wealth of stories about salmon from their parents and grandparents.

And, yet, the administrative elite continue to design model after model after model.

Ralston Saul:

To know — that is, to have knowledge — is to instinctively understand the relationship between what you know and what you do. That seems to be one of our biggest difficulties. Our actions are only related to tiny, narrow bands of specialist information, usually based on a false idea of measurement rather than upon any knowledge — that is, understanding — of the larger picture.

The result is that where a knowing woman or man would embrace doubt and advance carefully, our enormous specialized, technocratic elites are shielded by childlike certainty. Whatever they are selling is the absolute truth…

Did Fisheries and Oceans take a head shot in the hockey game?

Ok, I recognize they’re an easy target… DFO (Department of Fisheries and Oceans Canada) that is. If we continue with the hockey analogy; DFO is the player that keeps coming through the neutral zone with their head down – puck in their skates or something.

Defenceman on the opposition steps up and puts their shoulder pads right on the chin. DFO is lights-out on the ice… stretcher… pink spots in vision next day… career might be over… loss of memory…

See, that’s what I’m getting at… the memory loss.

Last night, I’m searching online for various documents related to sockeye lakes in British Columbia. I’m particularly interested in learning about sockeye lakes in the upper Skeena River area — Bear Lake, Sustut, Johanson. I’m also just looking for general sockeye research as I applied for “standing” in the Cohen Commission investigating the Fraser sockeye collapse.

(my chances of being granted standing are probably about as good as my current chances at making the NHL…)

compliments of Skeena Independent Science Review

And I find a Fisheries and Oceans report from 2001 discussing sockeye rearing lakes.

Factors Limiting Juvenile Sockeye Production and Enhancement Potential for selected BC Nursery Lakes

And in the introduction to the report it quite clearly states:

Numbers of anadromous salmon returning to spawn in lakes and streams from Alaska to California have declined dramatically since the early 1990s (Ricker 1987; Gresh et al. 2000). Causes of the reduced escapements vary, but commercial harvesting, industrial development, and habitat degradation have all had substantial impacts….(my emphasis)

In recent years, the effects of these reductions in salmon escapements on freshwater and terrestrial ecosystems have received considerable attention. The importance of marine-derived nutrients to the productivity of lake, stream and terrestrial ecosystems is now well documented… It is generally accepted that a major effect of reduced anadromous salmon spawners is the oligotrophication of many lakes and streams, with a corresponding reduction in productive capacity.

…The productive capacity of most B.C. sockeye nursery lakes has been, and continues to be, degraded because a substantial proportion of returning adults are harvested in various fisheries and thus prevented from contributing their nutrients to their natal streams and lakes…

In other words, we have systematically created a sockeye death spiral.

For thousands upon thousands of years, sockeye that spawned near B.C. lakes died, the nutrients from their bodies fed the surrounding ecosystems (water and land), and fed the lakes that baby salmon spend their first year to two feeding on small critters. Less nutrients from thousands upon thousands of tonnes of nutrients (parents carcasses) means less small critters… less small critters means less baby sockeye… less baby sockeye means less returning adults.

That’s my definition of death spiral…

And, yet, here is a response from federal Fisheries Minister Gail Shea to a letter sent to her with concerns about salmon farming on the B.C. coast:

I understand your concerns, and appreciate the opportunity to assure you that one of the highest priorities of Fisheries and Oceans Canada (DFO) in Pacific Region is the conservation of Pacific salmon stocks.

I will provide some broader context on these issues, and outline specific actions the Department is taking to protect and conserve our wild salmon.

The coastwide scope of the decline that has occurred across all Pacific salmon species suggests that this decline is associated with much larger ecological events than localized salmon farming.  These events include climate change and changes in ocean productivity along our West Coast.

In addition to recognizing the impact of global changes, DFO also understands potential impacts of local conditions.

Sincerely,

Original Signed By

Gail Shea, P.C., M.P.

Maybe the rookie minister just hasn’t had time to be fully updated about the issues surrounding salmon declines… like scientific reports from her own ministry pointing to the “substantial impacts” of “commercial harvesting, industrial development, and habitat degradation”.

Maybe the hockey analogy isn’t a fair one for the honourable minister from Prince Edward Island… maybe that tofu pie in the face a month or so ago left her with post-concussion syndrome.

She’s confused about “potential local impacts” and “substantial impacts due to log it, burn it, pave it”…

It would sure be nice if we could get past the awkward niceties that resemble asking that girl to dance at the first grade 8 dance.

Why can’t we just state the obvious and get on with making real changes before we repeat the cod fiasco? Instead there is collective post-concussion syndrome going on within the federal ministry responsible for looking after salmon — now and for our kids…

http://www.sfu.ca/biology/faculty/reynolds/documents/Skeena_Science_Review_2008.pdf

weather forecasts; salmon forecasts

weather forecasting tools and investment in red…………………….salmon in blue.

Growing up on Haida Gwaii (islands off the coast of British Columbia) “weather-obsession” is a common ailment. When one lives on islands out in the ocean, weather is important; crucial in many cases. Anyone planning to travel on the sea must have a decent idea of what the weather is doing — it is knowledge meaning the difference between life and death.

With weather there is local and regional; daily and seasonal, and so on. These must be considered when traveling on the water. Not just on islands in the sea but also large lakes and even large rivers. For example, kayaking in the inlets of Haida Gwaii, or on the open ocean a traveler needs to be aware of the shift in winds that occur as tides rise and fall, the shifts from morning to evening, inshore and offshore breezes and so on.

In days past, local and community knowledge dictated how weather was forecast: “Red sky at night, sailor’s delight — red sky in the morning, sailor’s take warning”. On Haida Gwaii, the difference between a wind from the south-east and wind from the south-west is dramatic; south-west often means squalls and weather that may pass. South-east means take cover — and if it’s in the fall or winter — you may need to take cover for weeks.

Forecasting weather now is an incredibly complex and techno-gizmo dominated affair; it continues to get more and more complex all the time. There are satellites orbiting Earth strictly for weather purposes – these are sent out costs of billions of dollars. On the ocean are weather buoys that measure air pressure, wind direction and strength, waves, swell and wave direction. There are planes flying around; weather balloons launched. There are airports, regional weather stations, local weather stations and so on, and so on.

Weather obsession is a particularly acute illness. One particular member of my family, still living on the islands, has serious weather obsession. She has website bookmarks with text forecasts, satellite images, weather buoys that surround Haida Gwaii, including some far offshore. I can phone her and I can get a full reporting hour by hour of where a low-pressure weather system is sitting and the strength of air circulation (i.e. wind), relative humidity, barometric pressure rising or falling, sea swell direction and strength and even distance between peaks of waves.

If you’re planning to travel by ferry between the mainland and Haida Gwaii — a six hour crossing in calm seas — this is important information. Staff on the ferries are certainly watching, no one wants to get caught in a “south-easter” blowing over 100 km/hr with wave swells topping 10 metres. (they won’t sail when the seas are over 3 metres… but accidents happen).

One Christmas about ten years ago — my brother and I were visiting the islands. We were delayed on the way out and spent Christmas Day on the ferry due to weather. Our travel plans back were delayed by ten days. An intense low pressure system moved in to the area and the ferry could not sail. Swells on the Hecate Strait were reaching over 14 metres (that’s almost 50 feet!) and on a sustained basis for days. The really scary part was there were only eight seconds between passing wave crests.

Not pleasant.

Thankfully weather forecasting was able to predict this with a certain amount of accuracy.

Enough accuracy to say: “stay the hell off the ocean!”

….

What does this have to do with salmon forecasts?

No matter what tools are used for forecasting of any kind — financial markets, sports teams odds, crop yields, elections, etc. — there is always margins of error. Some might assume that more tools, techno-gizmos, mathematical equations, and like that utilized — the more accurate the forecasting.

That may be true to an extent. If we look at weather forecasting… the one-day outlooks are getting better; however there are still so many factors in these complex systems that it is very difficult to be entirely accurate. There are also the unforeseen unforeseens; the unknown unknowns (thank-you Mr. Rumsfeld).

As we move out to five day forecasts, as we all well know, the forecasts become a lot less accurate, a lot less reliable. They are like a general guidance

And thus the salmon comparison.

Forecasting salmon returns is very, very difficult. There are almost as many potential factors affecting salmon, as there is weather — if not maybe more. Even weather affects salmon — for example the movement of the Aleutian Low Pressure system in the Gulf of Alaska and the California High. These can dictate ocean currents and nutrient upwelling and cycling throughout the North Pacific — the salmon “pasture”.

Now, if we compare the amount of tools and investment that guide weather forecasting and compare this to salmon it looks something like this:

Granted maybe weather has larger economic implications.

When it comes to weather though, meteorologists have accepted that they can not account for and factor in all the ‘unknown unknowns’ into the equation. Meteorologists have accepted that weather is part of an incredibly complex system that humans can only barely begin to understand — no matter how powerful our computer modeling and no matter how many indicators, phenomena, and quirks and quarks we factor into our equations.

One new thing is discovered, and this simply opens up a whole new set of questions.

Sadly though — this does not seem to be the case with salmon.

The absolute bulk of the message, the spending, the ‘investment’, and the research I am seeing in salmon discussions is that:

  • we need more research,
  • we need more technology,
  • we need more accurate forecasting,
  • we need more computer modeling,
  • we need more accurate fisheries management equations (like Maximum Sustainable Yield),
  • we need more telemetry and sonar and radio tags and techno-gizmos, and
  • we need to know more about the ocean and so on, and so on, and so on.

This isn’t like the weather. There will always be weather. Weather is not going in extinct in some areas. We can’t eat weather.

The amazing thing with weather and techno-gizmos and weather buoys and satellites and up-to-the-minute web forecasts and weather channels and, and, and…

If you stand on the dock with an old-timer or someone knowledgeable about local conditions,  they will look up to the sky and say: “I don’t know if you should head out, that breeze is turning to the south-east, it could get a little choppy out there….”

98 times out of 100 they’re probably right.

This same knowledge exists in local communities about salmon runs. When they migrate, how they migrate, where, indicators of strength, and so on.

This knowledge can’t be captured by sonar, or by telemetry, or by computer modeling, or by simulations, or by mathematical equations…..

It’s captured by being there (not in some meeting in Vancouver…)

why count salmon?

one fish, two fish, red and green fish…

Most of us know the story. Dr. Suess wrote the book to help kids learning to read. A fun rhyming story. Although it was red fish, blue fish…

I haven’t seen the book in awhile; however, I don’t think there were any rhymes about “mark-recapture” sonar hydroacoustical  split-beam single-beam DIDSON data capturing salmon counting wonder tools.

See if Suess’ fish on the right were captured by one of these techno-gizmos utilized for counting salmon they’d show up as some grainy fuzzy blob resembling a baby ultrasound image.

The “advancement” of techno-tools intended to count salmon is a growth industry. There are in-stream tools for counting salmon utilizing sonar-like technology — and for the last decade or more there have been techno-tools such as radio telemetry utilized in the ocean. Little radio transponders are implanted in little baby salmon and  when they migrate out to ocean various radio receivers installed on the ocean floor pick up the signal. Scientists look at the “data” and try to form a picture of where and when those little salmon migrate around parts of the North Pacific.

The other day I saw a presentation on sonar-like device that is installed on a river bank. The device sends out sound waves into the stream, those waves come back to a computer as an image, like a video feed, that can be looked at. Little gray blobs in the shape of a fish moving by can then be counted. The apparent benefit for these types of tools is that they can be used in deeper, larger, maybe murkier streams where visual counting may be more difficult.

Curious enough project… the irony I see is that all of the wires and such from the device run up the stream bank, and are fed into a tiny little shed (basically windowless) situated away from the stream. The salmon “counters” sit in the little dark shed staring at a laptop screen counting gray blobs (I mean…salmon).

One of the problems, apparently, was that the “counters” could only count 20 minutes of data. If the sonar device ran for an hour, or 24/7  pumping out visual images the files would be way too big…

Of course, data capacity of computers is doubling about as fast as you can say “double-shot espresso. ” So, is there a time when a computer program could be written to count the gray blobs, the sonar device could run 24/7 and there would be no need for people? (just ask bank tellers and assembly line workers about how computers replace people rather efficiently).

This brings me to the question — why count salmon?

The basic purpose is to try and determine how many salmon are reaching the spawning grounds. Fisheries management and science calls this: “escapement”.

I have always found this such an odd term; troubling. It gives me memories of movies like “Escape from Alcatraz” and “The Fugitive“.

Escapement — refers to salmon that have “escaped” commercial fisheries and the multitude of predators and gauntlet of natural threats; for example elevated stream temperatures. For example, last year on the Fraser River was the hottest average river temperatures on record.  The average was close to 19 degrees Celsius with peaks nearing the mid-20s.

For salmon — that’s akin to sex in a hot, hot tub. Great for the first little bit, but taxing, exhausting, and dehydrating quickly. Salmon can’t hop out and roll in the snow for cool down…

If we run with this analogy — the whole salmon counting business is rather invasive. These “fugitives” are simply trying to get to the best spot for sex, which has been determined by eons of evolution. Trying to get to the ideal reproduction spot entails dodging nets, hooks, teeth, hot water, pollution, and whatever other dangers. Then around almost every bend of stream they get blitzed by sound waves, or swim into a fence that is directing where they need to swim so they can be counted.

And the purpose?

Simple really.

The entire purpose of counting salmon is to plug numbers into equations which then suggest humans can capture “x” number. That “x” number is apparently the “surplus”.

It’s piggy-bank economics. What’s the purpose of counting all your pennies?

To determine “how-much-you-got”.

Counting pennies is pretty easy. The cold, hard copper is right there in front of you. You know it’s a penny, you can read the year it was produced. You can make nice stacks and dream of all the 99-cent iTunes songs you can buy. You can stack the pennies on your elbow and flip down quickly to see how many you can catch before gravity takes over….

Salmon? not so much.

Counting salmon is tougher than laying on your back in the fall and counting all the Canada geese that fly over. Or, counting all the cars attached to a train going by.

Counting salmon is fraught with error: viewer error, counter error, species error, nighttime error, timing error. We simply can’t count all the salmon. And, hence, why counting salmon became pretty big business. With advancing technology, folks assume the better the technology, the more accurate our counting. The more accurate our counting, the better we can base our “harvesting” decisions.

The better we can base our “harvesting” decisions — the better we can “manage” the resource, the salmon.

Big problem.

If the initial numbers (“escapement” estimates) are fraught with error, assumptions, and estimates; then the worse those margins of error become the further we move down the equation.

What happens when you try to build a tower when one of the walls is slightly shorter? Eventually it comes down like a house of cards.

The original error becomes more and more emphasized the further along we go. Eventually… disaster.

The greatest irony of all this counting — it’s getting easier. It’s getting easier every year.

Why? Because, there are less and less salmon to count.

And soon enough — on our current route — there could potentially be few commercial fisheries. At that point; will there be any point in counting…?

And really, if the technology is fraught with error would we not be better off economically putting the millions of dollars pumped into technology — into people instead?

Could we not hire hundreds of people with the same amount of money to actually physically walk streams, snorkel sections of rivers, and get a good idea over years of observation? They could then potentially observe other things going on out there — like maybe starving bears…

Is there not a rich source of traditional knowledge that suggests how salmon were counted in the past when there was not the same techno-gizmos? How did downstream aboriginal communities make sure salmon got to upstream communities and spawning grounds?

Unfortunately, I can find reams and reams of techno-gizmo studies (that still only produce “estimates”) and basically zero studies that look beyond our techno-gizmo obsession.

Fisheries and Oceans Canada breaking laws?

Pre-season estimates  for returns of Fraser River salmon for this year (2010) are trickling out of Fisheries and Oceans Canada. It’s not a pretty picture… not a pretty picture at all. In Saturday’s Vancouver Sun reporter Stephen Hume reported on some of the forecasts.

Forecast not looking good for B.C.’s salmon stocks this year:

Another disastrous season for B.C.’s iconic wild salmon appears to be unfolding even as yet another inquiry gets underway, this time into the collapse of last year’s Fraser River sockeye runs.

Meanwhile, some scientists in the department of fisheries and oceans are warning that the outlook for 2010 is already worse than it was in 2009, when only about 10 per cent of expected Fraser River sockeye returns materialized. (my emphasis)

I’m sitting here looking at Fisheries and Oceans 2010 Salmon Outlook. These are “early” estimates — apparently the practices for which these estimates are based,  are changing drastically after last year’s complete failure of forecasting Fraser River sockeye. (10 million forecast — 1 million actually arrived).

Apparently there are four “Outlook” status categories that guide early ‘management’ decisions: numbered 1 – 4. (I paraphrase here):

  • Status 4 — Abundant returns forecast. Fisheries will be directed subject to various policies.
  • Status 3 — Near target returns. Forecast suggests particular stock will be within 25% of target and stable or increasing. Directed fisheries according to policies.
  • Status 2 — Low returns forecast. Well below target levels and declining. Directed fisheries uncertain and likely to be small – if at all. Policies will determine allocation.
  • Status 1 — Stock is basically hooped. Less than 25% of target, declining rapidly. Any fisheries highly unlikely, possible draconian measures (like 1998 complete coho closure due to conservation concerns).

This is supposed to be Fisheries and Oceans new — green, amber, red — approach to fisheries allocations. And if you’re not familiar with how salmon are allocated. Law in Canada, in the Fisheries Act, and legislation directs that absolute #1 Priority is Conservation when it comes to salmon. Here’s the allocation direction.

  • First, make sure conservation objectives are met.
  • Second, allocate First Nation fisheries for food, social and ceremonial purposes.
  • Third, allocate to commercial and sport fisheries.

I reiterate, Absolute #1 is Conservation first.

When it comes to Chinook forecasts this year for the upper and middle Fraser River — it’s a death spiral.

Fisheries and Oceans own forecasts state:

Continued poor marine survival has resulted in continued poor to very poor escapements. 2009 was the third successive year where total recruitment has failed to replace parental spawning abundance.

This means the runs are so small, there are so few Chinook spawning that there will not be enough baby salmon produced, sent to the ocean, and return — to match the size of the parents run.

This means negative growth. This means death spiral for any population.

This is not a situation like Canada or most of Europe where we can simply open our borders and improve our immigration policies to ensure our populations don’t experience negative growth and avert a shrinking labour force, and thus avert a shrinking economy, and thus avert falling stock markets….

No, death spiral. This means that even if the most draconian conservation measures were applied, the population of Chinook in the middle and upper Fraser would continue to dwindle — going the way of the Yangtze dolphin, the dodo, the passenger pigeon (you know the stories). Not to mention, that there will most likely be no First Nation fisheries targeting Chinook – comprising the second commitment under Canadian law.

So can somebody please answer me this:

Why the hell is there an open sport fishery for Chinook salmon right now at the mouth of the Fraser River?

From Fisheries and Oceans website:

Chinook

Chinook is open year-round in Area 29, except for the tidal portion of the Fraser River.

Area 29 is the area covering the mouth of the Fraser, north to Sechelt and west to the Gulf Islands.

But get this, it’s not just Area 29 — the entire frigging coast of BC is basically open to Chinook fishing year round!

All areas where upper and middle Fraser Chinook may be migrating to reach the mouth of the Fraser River — are currently open for sport fishing!!

Fisheries and Oceans is contravening their own legislation. The Wild Salmon Policy states:

Specifically, DFO is committed to managing fisheries such that Aboriginal fishing for food, social and ceremonial purposes has priority over other fisheries.

And yet, DFO currently has open Chinook fisheries coast wide, and specifically encircling the mouth of the Fraser River. The upper and mid Fraser early Spring Chinook are basically on their way in and will be over the next bit. The Spring stocks are not far behind.

How can Fisheries and Oceans say they are managing for conservation first under these circumstances?

Justice Cohen (of the Cohen Commission inquiry into Fraser sockeye declines) I hope you have an opportunity to read this, or are presented this info during the inquiry into the Fraser sockeye collapse.

It’s called mis-management.

when change is in the winds…and wings.

In the 1990s, Fisheries and Oceans Canada had to start making drastic changes. One of the big reasons was the Sparrow decision in 1990. The case involved a Musqueam fishermen in the Vancouver area who was charged for using a net that was longer than regulations permitted. The case weaved its way through the Supreme Court of BC, the Court of Appeals and on to the Supreme Court of Canada.

In essence, the final decision in Sparrow stated that First Nations have the aboriginal right to fish for “food, social and ceremonial purposes”. This right took priority before any other fishing. Thus the principles of conservation first, then aboriginal fisheries, then commercial and sport fisheries that guides fisheries policy now — and sets the basis for the Wild Salmon Policy.

Fisheries and Oceans had to fundamentally change the way they “managed” fish and fisheries. Annual budgets were shifted dramatically, various departments had to change their operating procedures, and a shift in general corporate-bureaucratic operation. From the decision flowed the Aboriginal Fishing Strategy in 1992, which tried to change the way Fisheries and Oceans dealt with and negotiated with First Nation communities.

Also in the late 1990s was the Marshall decision on the east coast of Canada. In that decision the Court “affirmed a treaty right to fish in pursuit of a moderate livelihood under treaties signed with the British in 1760-61.” One of the crazy aspects of this case is that it involved two Mi’kmaq fellows catching eels and selling them for $787.

Following this case, a negotiation process of over five years began with 34 Mi’kmaq and Maliseet First Nations affected by the decision. The Court suggested that negotiation, as opposed to litigation was the way to move forward. A common direction given repeatedly by the courts in decisions involving aboriginal rights and title.

(There is a brief from 2006, describing DFO’s response to the Sparrow and Marshall decisions on their website.)

A glance at Reports on Plans and Priorities (Treasury Board of Canada) from 2006-2007 shows that forecast spending for that year on the Aboriginal Fisheries Program was over $30 million. Other programs related to this are $16 million for the Aboriginal Aquatic Resources and Ocean Management Program (started in 2004). And, the Fisheries Access Program which focuses on retiring commercial licenses and giving them to communal holders in First Nation communities. This program was initially forecast at over $350 million in 2001 and was forecast to spend over $57 million in 2006-2007 with ongoing commitments for years to come.

The Nuu-chah-nulth case from this past November (of which there are posts from earlier this week) — found that regardless of these DFO efforts this still did not change the conclusion of Madame Justice  Garson:

[791]     I conclude that the plaintiffs [Nuu-chah-nulth] have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally.

There appears to be some parallels between the Nuu-chah-nulth and their aboriginal rights to sell by fish — and the conclusion of the Marshall decision that concluded those nations actually had treaty rights to sell fish.

Are the 140 Nations or so — and over 80 inland Nations — that rely on Fraser River salmon now going to have to litigate individually to confirm that “Canada’s fisheries regulatory regime prima facie infringes on their aboriginal rights to sell by fish by their preferred means”?

(This will be really cost effective for all involved…)

Or, will their be more fundamental changes to the operation of Fisheries and Oceans? And more spending of millions on programs that aren’t achieving basic legal principles?

Or, could some of the negotiation regarding fisheries be taken up in the British Columbia Treaty process that involves tri-lateral negotiation between Canada, BC and individual First Nations?

Umm, No.

…because federal Fisheries Minister Shea issued a press release a few days ago stating that all fisheries components of the B.C. Treaty process were off the table until Justice Cohen releases his report on the inquiry into declines of sockeye on the Fraser River. Not due until May of next year.

(on one note… nothing like another 15-month delay on the BC Treaty process that has been ongoing since 1993 — nothing like a 17-year multi, multi million dollar negotiation process… showing little, if no, progress in the majority of cases. Granted there has been one or two treaties negotiated in that time)

……..

Seth Godin, marketing guru and author, has a fitting post today related to this:

The Wordperfect Axiom

When the platform changes, the leaders change.

Wordperfect had a virtual monopoly on word processing in big firms that used DOS. Then Windows arrived and the folks at Wordperfect didn’t feel the need to hurry in porting themselves to the new platform. They had achieved lock-in after all, and why support Microsoft?

In less than a year, they were toast.

When the game machine platform of choice switches from Sony to xBox to Nintendo, etc., the list of bestselling games change and new companies become dominant.

When the platform for music shifted from record stores to iTunes, the power shifted too, and many labels were crushed.

Again and again the same rules apply. In fact, they always do. When the platform changes, the deck gets shuffled.

Think this only applies to software?

The platform for healthcare changed from independent doctor’s offices and small practices to hospitals and hmos.

The platform for TV changed from airwaves to wires (so HBO and ESPN win, NBC loses).

The platform for cars is changing from gas engines to alternatives.

…..

(I’ll follow up with some thoughts in a later post.)

when fan blades are jammed with poop… pull the plug.

Yesterday, I posted on deafening silence vs. nattering nothingness — largely in relation to the outcomes of the Supreme Court of British Columbia decision Ahousaht Indian Band and Nation v. Canada (Attorney General) or Nuu-chah-nulth decision regarding fisheries rights. In essence, the courts ruled that the Nuu-chah-nulth have an aboriginal right to sell fish commercially – which flies in the face of limiting First Nation fisheries to strictly “food, ceremonial and social purposes.”

Not only do the Nuu-chah-Nulth have the right to sell fish commercially — that the federal Fisheries Act infringes on their rights at an operational and legislative level. Madame Justice Garson found that many of the avenues for the federal Fisheries Minister to make unilateral decisions were flawed and unfounded. The ruling gave the parties two years to negotiate terms for how this would change.

As mentioned yesterday, the resounding silence from the federal government and Fisheries Minister following the decision — was impressive. The decision came down in early November 2009, not until the second week of February 2010 did the Fisheries Minister actually send a letter to the Nuu-chah-nulth (after multiple letters from Nuu-chah-nulth leadership); a letter that sounds like it was blathering nothingness suggesting the Fisheries ministry had not figured out how to move forward on the issue.

I am speculating here, but maybe it was because Fisheries Minister Shea was too busy in China in early January promoting the seal industry, and meeting with the Ontario Federation of Anglers and Hunters because they are an “important stakeholder and partner with whom we currently work together on many initiatives relating to fish and fish habitat in Ontario” (yeah, Ontario a  hotbed of salmon activity), and the various announcements in relation to Canada’s economic action plan.

In actuality, I think it is because there is so much shit in the fan at Fisheries and Oceans Canada these days that the air circulation for its 10,000 plus staff might be a little stagnant.

Fisheries and Oceans often find themselves with fecal matter flying towards the proverbial fan — it’s a darn difficult set of tasks, complex issues, and heated stakeholders and rights-holders involved in many aspects of the resources they are tasked to look after. In other words — they’re a big target. However, governing parties of the day have little long-term view. What’s the point? — especially in these days of minority governments.

Sadly, though the myopic or short-sighted view seems to be a plague upon the federal Ministry — that and the fact that they seem to lose good staff as if jumping from a sinking ocean-liner, and have an aging workforce that is set to cause attrition faster than avian flu in a Fraser Valley chicken farm. As, really, what’s the point of studying fisheries management these days and hoping for a lifetime career in a government ministry that’s about as seaworthy as a bathtub right now.

In February last year, the British Columbia Supreme Court issued a ruling in regards to the legislation that guides salmon farming in British Columbia: Morton v. British Columbia (Agriculture and Lands). Morton being Alexanda Morton the marine biologist who lives in the Broughton Archipelago between Vancouver Island and the mainland — where a significant concentration of salmon farms have developed over the last decade to two. Also plaintiffs in the case along with Ms. Morton were:

  • the Wilderness Tourism Association,
  • Area E Gillnetters Association, and
  • Fishing Vessel Owners’ Association of BC.

The issue at hand was that Ms. Morton and other plaintiffs were claiming that the Province of British Columbia — specifically the Ministry of Agriculture and Lands — does not have the jurisdiction to manage finfish (salmon) aquaculture in B.C. waters.

See, in 1988, the federal government (Fisheries and Oceans) and the Province of BC concocted an agreement handing over management of salmon farms from Fisheries and Oceans to the Province. The Province of BC maintains that its “farming” and thus the jurisdiction of the Ministry of Agriculture.

Wrong!

This case had to go right back to the Constitution Act of 1867 (formerly known as the British North America Act). The Constitution Act divided powers between the Federal Parliament and Provincial governments with Sections 91 and 92. As Justice Hinkson said in his ruling for this case:

[107]        The respective powers of Parliament and the provincial legislatures are set out in ss. 91 and 92 of the Constitution Act, 1867. Neither Parliament nor a provincial legislature can expand its jurisdiction over the classes of subjects in ss. 91 or 92 by passing legislation which purports to do so.

So the feds and province screwed up royally back in 1988 — basically they broke constitutional law from what I can see. The problem is that, as you may have read in posts over the last month to two, salmon farming has grown astronomically in BC waters since then — anywhere from 500-2000%. All of this guided by legislation that is not valid.

[193]        … Given the specific enumeration of the management and protection of the fisheries in s. 91(12) of the Constitution Act, 1867, the national resource of the fisheries in not a matter that should or can be left to a level of government other than Parliament.

Justice Hinkson was left in a jam. He found the current provincial legislation invalid; and that the federal government had no legislation to guide salmon farming; it was:

[188]… constitutionally invalid…

[198]        The absence of sufficient legislation to regulate fish farms could well be more harmful to the public than the perpetuation of the impugned legislation.

His only choice was to give the federal government a year to develop adequate legislation — meaning that it should have had this legislation since 1988. In the meantime, the status-quo would hold otherwise there would be no legislation (i.e. “more harmful to the public).

In a follow-up appeal process in January of this year, Justice Hinkson ruled that there would be a one-year ban on any new salmon farm licenses until the federal government (Fisheries and Oceans) could develop adequate legislation. The federal government didn’t even participate in the first court case.

(there are some other really curious aspects to this case surrounding “public” and “private” fisheries and the argument over what constitutes “standing” (e.g. see Cohen Commission and lack of definition — I’ll save these for another post, this one will already be long enough)

This instigated brown stained blades on the DFO fans… that was last spring.

Then this summer the complete blown forecast on Fraser sockeye by Fisheries and Oceans. In early November, the Prime Minister’s office announced a public inquiry into the issue:

“The Government is establishing a public inquiry to take all feasible steps to identify the reasons for the decline of the Fraser River sockeye salmon population,” said the Prime Minister.  “It is in the public interest to investigate this matter and determine the longer-term prospects for sockeye salmon stocks.”

I find some of this rather disturbing. On one hand it is good that a public inquiry has been a launched — however, how the hell is a Supreme Court Justice and a team of lawyers supposed to determine “the reasons for the decline”?

Isn’t that the job of Fisheries and Oceans? Isn’t that why they have an over $200 million budget for fisheries management and another $100 million or so for research?

The “longer term prospects”?

They’re not good Mr. P.M.

It has been determined that this year’s run was so small it won’t be able to produce a similar size run for the future. This is called a death-spiral….

Stockwell Day also informed us in the press release:

“This is a significant and important issue for BC fisheries industry,” said Minister Day.  “Our government is deeply concerned about the low returns of sockeye salmon to the Fraser River and the implications for the fishery.”

Well, Mr. Day, granted you actually represent a BC constituency, I’m rather appalled.

There is no fishery. There has been no fishery for three years on Fraser sockeye. The “implications” are: No damn fishery for the foreseeable future. This isn’t a “significant issue” — this is a flippin disaster.

One individual in the BC interior – Priscilla Judd –  has taken it upon herself to distribute canned salmon to impoverished interior First Nation communities (see Georgia Straight article). Communities that have depended on the yearly return of salmon for thousands of years. Some estimates suggest that pre-European contact, First Nation individuals on the Fraser were consuming over 500 kg of salmon every year. Now that’s healthy.

Now, it’s 0 kg in many cases. There is no fishery. That’s devastating.

Unfortunately, the Terms of Reference for the public inquiry – the Cohen Commission –  are clearly laid out:

…conduct the Inquiry without seeking to find fault on the part of any individual, community or organization, and with the overall aim of respecting conservation of the sockeye salmon stock and encouraging broad cooperation among stakeholders.

There is one organization, and one organization only, tasked with making sure that wild salmon are well looked after. That organization is Fisheries and Oceans Canada.

If the Prime Minister says all “feasible steps”; is not one of those steps potentially the fact that Fisheries and Oceans dropped the ball? Not just dropped the ball, but utterly and completely mismanaged how the ball was even in the game in the first place… or was counting the wrong score; or plain and simply at the wrong game.

In the Nuu-chah-nulth case the Madam Justice had no problems “finding fault”.

In the Morton case, the Justice had no problem “finding fault” and suggesting it get fixed tout de suite.

There is a history of courts of law finding fault with the approach of Fisheries and Oceans Canada — as well as inquiries, Attorney Generals, and Royal Commissions. Some that in the 1990s were even officially called: “Here We go Again”.

The other day, March 2, federal Fisheries Minister Shea issued a quiet press release stating that all fisheries negotiations as part of treaty negotiations in British Columbia would be deferred until the Cohen Commission into the Fraser River sockeye declines is complete:

“The Government of Canada is deferring the negotiation of fisheries components at treaty tables in British Columbia that involve salmon, pending the findings and recommendations of the Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River. The deferral of fisheries related negotiations will allow for treaty negotiations to be staged so that fish chapters in treaties can be informed by the findings and recommendations of the Inquiry.”

I’m not sure if Minister Shea has looked at the geography of B.C. or of treaty negotiations. First off, I can’t imagine there isn’t anything more fundamental to treaty negotiations in most BC First Nation communities than fisheries. Secondly, not every Nation of the over 200 First Nations in BC is located on the Fraser River.

Why would the Gitsxan, or Tahltan, or Tsay Keh Dene be affected by the Commission’s ruling on Fraser sockeye? (Tsay Keh isn’t even in a Pacific drainage, it’s in the Arctic drainage.)

Even the Terms of Reference for Cohen Commission repeatedly state, for example:

B. …to consider the policies and practices of the Department of Fisheries and Oceans (the “Department”) with respect to the sockeye salmon fishery in the Fraser River.

C. to investigate and make independent findings of fact regarding:

i.  the causes for the decline of Fraser River sockeye salmon…

And really, if the Cohen Commission finds that the “current state of Fraser River sockeye salmon stocks and the long term projections for those stocks” is absolutely dismal — what would some communities have left to negotiate? (I understand there are other important components, however my experience has been fish are central)

Even the BC Treaty Commission frames the fisheries issue as such:

Fishing Issues
Integral to First Nations’ Culture
First Nations have for thousands of years sustained vibrant and rich cultural identities profoundly linked to BC’s land and waters. It is said that the Nisga’a, people of the mighty river, are so connected to fish that their bones are made of salmon. Living in balance with the land and the water is an integral part of First Nations’ cultures, and fishing is regulated by longstanding cultural laws around conservation and preservation for future generations.

Justice Hinkson in the Morton case has a great observation:

[109] … the very functioning of Canada’s federal system must be continually be reassessed in light of the fundamental values it was designed to serve.

Sadly, it appears that the “fundamental values” of the federal fisheries system are lost. The complete destruction of North-Atlantic Cod was one of the first indicators.

That same federal system is arguing in courts of laws, denying in courts of law — the highest courts of the land — that coastal First Nation societies were not fish-based cultures, didn’t trade with other Nations, and have no commercial interests in fish or salmon.

It appears that maybe the “light” in the hallowed halls of the federal Fisheries ministry is being filtered through brown excrement… excrement that has been hitting fan blades and spraying across windows.

This is more than just shit hitting the fan. This is a full on shit storm.

In times of vastly shrinking public service budgets, red-numbered federal and provincial budgets, and court cases that are slapping a Ministry upside the head… the thought of a public inquiry headed by a judge starting to poke and prod into:

the policies and practices of the Department of Fisheries and Oceans with respect to the sockeye salmon fishery in the Fraser River – including the Department’s scientific advice, its fisheries policies and programs, its risk management strategies, its allocation of Departmental resources and its fisheries management practices and procedures, including monitoring, counting of stocks, forecasting and enforcement,

… has got to have some senior Fisheries bureaucrats seriously considering early retirement.

I will not be surprised to see an exodus from that Ministry faster than a cat hitting water. There is a fundamental shift afoot — and the shift is going to hit the fan real soon.

I might suggest that rather than carrying on this constant legal wrangling based on the act of ‘deny, deny, deny’ — why isn’t there a serious investigation into how First Nation societies up and down the Fraser River co-existed and co-managed salmon resources?

It was also done on the Columbia, the Yukon, the Stikine, and so on. Ground-breaking new approaches and management systems that actually work will not be coming out of bureaucratic behemoths.

Bureaucratic behemoths appear to need a serious slapping from the highest courts before they institute change — and even then, as demonstrated by Minister Shea’s silence on the Nuu-chah-nulth case… legal facts still don’t spur meaningful action.

deafening silence vs. nattering nothingness

Yesterday I had a post regarding another landmark legal ruling flowing out of the Supreme Court of British Columbia related to aboriginal rights and title in Canada. The Nuu-chah-nulth decision came down in November 2009 and the resounding thud heard in the hallways of many a government bureaucracy must have made the clock in the Peace Tower of Parliament skip a tick or tock or two — even more so throughout the federal ministries that have a fishy scent to them:

[791]     I conclude that the plaintiffs have proved that Canada’s fisheries regulatory regime prima facie [a fact presumed to be true] infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally.

This, the ruling of Honorable Madam Justice Garson. The honorable justice also gave the Nuu-chah-nulth and Fisheries and Oceans Canada two years to: “consult and negotiate the manner in which the plaintiffs’ aboriginal rights to fish and to sell fish can be accommodated and exercised…”

As I mentioned in my post yesterday — their is a federal government mandate to deny, deny, and deny aboriginal rights and title. It is an impressive two faced policy when compared to the glossy pictures of federal ministers ‘celebrating’ the aboriginal heritage of Canada (especially at Olympic time) — and the importance of:

“modernizing land management regimes and enhancing the value of Aboriginal assets by addressing legislative and regulatory barriers that hinder economic development.”

This quote directly from an Indian and Northern Affairs Canada press release from just a few months ago.

(One of the really curious pieces of this court case is that the Province of BC dropped out of the case mid-stream. They were employing their even more adamant practice of denying aboriginal rights and title… then kablooey — gone. Curiously, this was around the time that they were trying to introduce an Inherent Rights Recognition Act or something to that effect. Apparently the federal government was not pleased with either the proposed Act, or the Province’s complete switcheroo on aboriginal rights and title)

The stunning part for me is that the Nuu-chah-nulth are not looking to take over the fishing industry on the west coast of Vancouver Island, or demanding all non-aboriginal licenses be handed over, or that they should get all the salmon, or all the halibut, or all the herring, or all the clams, or all the crabs…

In actual fact in the very first paragraph of Madame Justice Garson’s ruling it states:

“The plaintiffs do not seek rights to fish free from government regulation, but say such regulation must recognize their aboriginal rights, which at the moment it fails to do.”

The Nuu-chah-nulth are simply claiming:

that prior to and at contact, the Nuu-chah-nulth were a fishing people whose way of life was characterized by trade, including trade in fish.  They submit that these pre-contact practices translate into modern aboriginal rights, which they plead as follows:

a.   To harvest all species of fisheries resources from within their territories, or portions thereof, and, in the alternative, one or more of those species;

b.    To harvest those fisheries resources for any purposes including for food purposes, social purposes, ceremonial purposes, trade purposes, purposes of exchange for money or other goods, commercial purposes, purposes of sustaining the plaintiff communities, or one or more of those purposes; and

c.     To sell, trade or exchange those fisheries resources:

i.  on a commercial scale; or

ii.  in the alternative, to sustain their communities; or

iii. in the further alternative, for money or other goods.

Now maybe I am editorializing a little here — however this sounds to me like: “modernizing land (and water) management regimes and enhancing the value of Aboriginal assets by addressing legislative and regulatory barriers that hinder economic development.”

Gee, you mean assets like over five thousand years of living beside and on the ocean?

And what better economic development on the isolated west coast of Vancouver Island then fisheries? What better time to start taking a real hard look at fisheries ‘management regimes’ that could “enhance the value of Aboriginal assets”? What better time at looking how to include and empower coastal communities in the fishing industry?

The response from Canada?:

[16]      Canada further submits that none of the plaintiffs have established that they possess aboriginal rights to harvest, for any of the reasons they assert, all species of fisheries resources in their respective territories.  They have also failed to establish aboriginal rights to sell any species of fisheries resources harvested in their respective territories, whether on a commercial scale, for the purposes of sustaining their communities, or in exchange for money or other goods.

Canada contends that these rights cannot be proven because no such practices existed at the time of contact; alternatively, any such practices were not integral to the distinctive cultures of the plaintiffs; or, in the further alternative, there is no continuity between the pre-contact fishing practices of the aboriginal peoples of the WCVI [west coast Vancouver Island] and the modern activities alleged to be the modern iteration of those practices.

So what does “Canada” think then?

Someone in the great Federal halls of all-knowing please inform… Someone please step out of the Parliamentary sandbox and fill Canadians in on this.

I searched through Fisheries and Oceans media releases, and pages and pages of Google and whatever other search.

A big fat resounding….    Nothing.

Go to the “media room” of Fisheries and Oceans Canada for the end of 2009 and there’s press releases on how Canada is investing in small boats for enforcement, groundfish ice fishing in Quebec, a new office in Europe to make sure we can export more of our resources, and other piddly stories and nattering nothingness.

It seems even though Madame Justice Garson gave very clear and concise direction and timelines on coming to a negotiated agreement in two years — Fisheries and Oceans Canada is carrying on as if nothing happened. The Nuu-chah-nulth haven’t heard much more than a peep.

In early February, the Nuu-chah-nulth produced Newspaper Haa-Shilth-Sa reported that leadership, despite sending three letters to the Fisheries Minister, one to the Minister of Indian and Northern Affairs, and two to Fisheries and Oceans Canada Pacific Regional Director General, had still not heard a peep.

Just as the paper went to press a letter was received by fax from the Fisheries Minister stating:

“The Ahousaht decision is an important and complex ruling that requires Canada to seriously evaluate its implications. The analysis of the ruling is not yet complete.”

In other words PFO — we are going to appeal the decision, and we will drag this through the courts to the highest level. (In other words our Economic Action Plan for Canada does not include supporting fisheries communities — it’s about giving a lot more money to lawyers and anthropological experts.)

(Very little oral history or testimony was given in this court case).

Yet, Madam Justice was quite clear in stating something akin to “hey DFO, get your shit together.”

[758]…I do conclude, as the plaintiffs submit, that the Fisheries Act and regulations impart to the Minister [of Fisheries] an unstructured discretion that risks infringing the plaintiffs’ aboriginal rights.  With respect to the second inquiry, DFO policies do not presently recognize aboriginal fishing rights outside the context of an FSC [food, ceremonial and social] fishery.  It obviously follows that the Minister’s discretion to issue licences accommodating aboriginal fishing rights, other than for FSC purposes, is unstructured and unconstrained by legislation. (my emphasis)

In other words, the federal Fisheries Minister can basically make decisions on a whim. Considering that the current Fisheries Minister is a rookie, and had a long career with Revenue Canada prior to being voted a Member of Parliament — I can’t say I’m too comfortable with “unstructured and unconstrained” decision-making.

[763]     As well, Canada endorses an integrated commercial fishery model, as summarized in a July 2007 policy document tellingly entitled “One Fishery For All of Us”.  As that policy document explains, “Achieving a fair, sustainable, integrated commercial fishery on Canada’s west coast, in which all commercial participants fish under common and transparent rules, is an important priority of Canada’s new Government …”.

The current Integrated Fisheries Management Plan with respect to salmon, for instance, indicates that the share of fish harvested by First Nations economic opportunity fisheries must be “fully mitigated” over time by the retirement of commercial salmon licenses from the commercial fishery.  Fisheries Manager, Mr. Ryall explained that one of the primary objectives of this approach was to avoid negative impacts on established fishers. 

Thus, Canada’s stated policy of encouraging economic opportunity in the fisheries for First Nations is constrained by its view that any such commercial fishing opportunities not be at the expense of non-aboriginal fishers. (my emphasis)

OK, I think I’m getting the picture here — Canada’s “new government” has decided that no opportunities can be given to aboriginal fisherfolks because that means that something would have to be taken away from non-aboriginal fisherfolk and/or coastal communities.

Now that would create a national shit-storm wouldn’t it?

If you’ve ever read the comments attached to mainstream media stories involving salmon — there is a large, loud, strong voice that enjoys pointing bulky fingers at aboriginal fishing as the cause of the salmon declines. These accusations with no regard to the actual catch numbers:  over the last several decades the commercial fishery is responsible for over ninety percent of the catch of salmon, aboriginal fisheries less than five percent, recreational fisheries less than five percent.

And sadly, a substantial portion of the commercial fishing sector is now dominated by Jimmy Pattison’s Canfisco (the Gold Seal label so prevalent in Pattison’s Save On Foods) — especially the seine fleet which has the ability to catch crap loads of fish in very little time.

There is an absurdity ringing so loudly here; it’s worse than the: “whoop, whoop, reinkk, reinkk, deedoo, deedoo, bweep, bweep, bweep, whoop, whoop, reink reink, deedoo deedoo…!!” car alarm at 3 a.m. just under your bedroom window that has been going off for half an hour — or 150 years….

I’ll expand on this in my next post.

how to define two-faced?

In November, a few months back, a very significant legal decision came out of the Supreme Court of British Columbia. The case was labeled: Ahousaht Indian Band and Nation v. Canada (Attorney General).

Or, the Nuu-chah-nulth Nation (comprised of  The Ahousaht, Ehattesaht, Hesquiaht, Hupacasath, Mowachaht/Muchalaht, Nuchatlaht, Tla-o-qui-aht, and Tseshaht Indian Bands and Nations all from the west coast of Vancouver Island) against the Government of Canada.

The core of the case centered on the Nuu-chah-nulth claim to an aboriginal right to fish on a commercial basis. As stated by the Honorable Madam Justice Garson in her analysis:

They assert that at the time of contact with Europeans, their ancestral communities fished and traded fish and these activities were intrinsic aspects of their culture.  They contend that those fishing and trading activities found their modern-day aboriginal rights to fish commercially, and that Canada’s fisheries regime unjustifiably infringes those rights.  They claim that they are largely excluded from the WCVI [West Coast Vancouver Island] commercial fishery.  The plaintiffs do not seek rights to fish free from government regulation, but say such regulation must recognize their aboriginal rights, which at the moment it fails to do.

Presently, in Canada, federal Fisheries policy limits First Nations to fishing for “food, ceremonial and social purposes”. The apparent priorities of Fisheries policy in Canada are guided by: conservation first, then First Nation food fisheries, then commercial and sport fisheries.

As the Nuu-chah-nulth successfully pointed out — current Fisheries policies do not account for the reality that Nuu-chah-nulth communities historically utilized fisheries resources for far more than just food and ceremonial purposes — prior to European contact.

For someone that grew up on the coast — this is a bit of a no brainer. However, apparently for folks in Ottawa this is a little more difficult to grasp.

.

When it comes to the Olympics, or tourism, or other issues, the federal government will wave their aboriginal flag worse than Gordon Campbell waving a Canadian flag at the closing ceremonies — whacking Ms. Harper in the face repeatedly.

A press release from Indian and Northern Affairs Canada in early December: Government of Canada Supports 2010 Aboriginal Pavilion. The Feds made a $2.9 million dollar contribution for the Aboriginal Pavilion. Gary Lunn, Minister of State for Sport suggested:

“The 2010 Aboriginal Pavilion will be an incredible chance for Canadian and international visitors to experience and celebrate the cultural richness of Aboriginal

The  press release from Indian and Northern Affairs Canada ends suggesting:

Indian and Northern Affairs Canada is working to ensure that Canada’s investment leaves a legacy of economic and social benefits for all Aboriginal peoples.

.

If you are not familiar with the history of court cases surrounding aboriginal rights and title in Canada — the record for Canada is rather poor. Yet, Canada continues to have one policy, and one policy only to any legal challenges by First Nations asserting aboriginal rights and title.

DENY!

Aboriginal rights and title are built fundamentally on the fact that aboriginal societies existed in Canada prior to European colonization. This was recognized in some of the earliest laws guiding establishment of Canada as a country – for example the Royal Proclamation of 1763 which suggested that First Nation people and societies needed to be respected.

The general policies, laws, and governance that have evolved since then are built upon the assertion of “denial”.

For First Nations, many of which have been fighting for rights and recognition for over a century, the burden of proof lies with the Nations. Once a Nation enters legal proceedings and the Canadian legal system — proving aboriginal rights and title rests with the Nations raising the case.

Added to the challenges, courts depend on evidence for that burden of proof. When it comes to aboriginal rights and title we’re talking about very old evidence — and in many cases oral history, as opposed to written history (although both come into play).

And, thus, the federal and provincial government practice of: deny, deny, deny.

And why not — governments don’t hold the burden of proof. Well… not until it gets to the point where aboriginal rights and title have been proven (becoming more frequent) and then the government has the burden of proof to prove that any infringement of those aboriginal rights was “justified”.

This gets into trickier, stickier, grayer areas.

And, do denial first.

So, not only did “Canada” deny that the Nuu-chah-nulth had any aboriginal rights, they denied any commercial rights:

[2]       Canada denies that the plaintiffs possess an aboriginal right to trade or to sell fish.  In the alternative, Canada denies that its legislation infringes any aboriginal rights that the plaintiffs do possess…

First order of business: try to deny that the communities mounting the legal challenge were actually the descendants of the Nations they represent:

[15]         Canada responds that the plaintiffs have failed to establish that they are the successor collectives to the aboriginal groups that historically possessed aboriginal rights and title.  For this reason alone, their claims must fail.

[16]         Canada further submits that none of the plaintiffs have established that they possess aboriginal rights to harvest, for any of the reasons they assert, all species of fisheries resources in their respective territories.  They have also failed to establish aboriginal rights to sell any species of fisheries resources harvested in their respective territories, whether on a commercial scale, for the purposes of sustaining their communities, or in exchange for money or other goods.

Canada contends that these rights cannot be proven because no such practices existed at the time of contact; alternatively, any such practices were not integral to the distinctive cultures of the plaintiffs; or, in the further alternative, there is no continuity between the pre-contact fishing practices of the aboriginal peoples of the WCVI and the modern activities alleged to be the modern iteration of those practices.

Canada denies that fishing practices existed at contact?? So, what the heck were folks comprising the Nuu-chah-nulth Nations eating?

Rocks off the beach? Come on.

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Another press release from the Federal Government in early December 2009:

In the new Federal Framework for Aboriginal Economic Development, the Government of Canada committed to increasing economic opportunities for First Nations by, among other things, modernizing land management regimes and enhancing the value of Aboriginal assets by addressing legislative and regulatory barriers that hinder economic development.

From the court case:

[198]     It is Canada’s contention that an examination of these other aspects of the Nuu-chah-nulth way of life provides evidence of a society that did not trade in fish… Canada submits that trade in marine resources was not an integral feature of Nuu-chah-nulth culture.

[242]     The plaintiffs contend that the evidence demonstrates that their ancestors traded in fish and that that trade in fish was integral to their culture.  Canada contends that, at most, the evidence supports a finding of occasional, opportunistic trade in fish.  It argues that any exchange of fish or marine products was largely within a context of kinship, gifts, or tribute to a chief, and therefore cannot be construed as trade.  It further argues that any trade was the product of European influence.

So apparently, the thousands upon thousands of aboriginal people living on the coast of BC just lazed around eating rocks off the beach and didn’t trade or have commerce of any kind until European ships started moving along the coast.

Thankfully, Madame Justice Garson did not adopted such a narrow view:

[282]     I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources.  I conclude that that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections.

[791]     I conclude that the plaintiffs have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally.

Things are changing… again. Unfortunately, as with so many aboriginal rights and title cases prior to this — the courts are not interested in dictating remedies to these cases. Madame Justice has sent the Nuu-chah-nulth and federal government back to the negotiating table with a two year timeline.

In some views, it’s sort of like finding a bully guilty of dishonorable acts — but, hey, we’ll give you two years to clean up your Acts.

Meaning, legislate your way out of this. That’s how the Province of BC dealt with aboriginal consultation issues after it got slapped in the courts a few years. It just changed the laws…

Fairly, though, it is very complex as the federal government has been busy since about 1867 layering legislation on laws on legislation ensuring that settlers, canneries, and commercial fisherfolks can access natural resources.

Kind of hard to know what you stand for when the governing regime changes every few years… and the choices between potential governing regimes are so busy throwing sand from the Parliamentary sandbox in each others underwear.

The disturbing part for me — is constantly reading “Canada” says this, “Canada” asserts this… I’m wondering where “Canada” got this mandate of denial from. This means that all of the Olympic fervor generated over athletes standing on podium and competing for country — also stands for marginalizing communities that are the fundamental core to the country (plus the fastest growing segment of Canada’s population – by far).

How do you defined two-faced?

Pacific Coast…factory mentality?

A simplification, of sorts, that came to mind while reading last night. The analogy for which was provided by Seth Godin’s book Linchpin: Are you indispensable:

Imagine a stack of 400 quarters. Each quarter represents 250 years of human culture, and the entire stack signifies the 100,000 years we’ve had organized human tribes. Take the top quarter off the stack. This one quarter represents how many years our society has revolved around factories and the jobs and the world as we see it. The other 399 coins stand for a very different view of commerce, economy and culture. Our current view might be the normal, but the old normal was around for a very long time.

Telling your family that you had a “job” and were moving away to go work in a factory of some sort was unheard of. Five or six generations ago, when it actually started happening, it was a social upheaval of huge proportions. It changed the world.

Having a factory job is not a natural state. It wasn’t at the heart of being a human until recently. We’ve been culturally brainwashed to believe that accepting the hierarchy and lack of responsibility that come with a factory job is the one way, the only way, the best way.

Take that same quarter and get some change — a couple of dimes and a nickel. The two dimes represent the approximate time of colonialism beginning on the British Columbia coast. Add the nickel and maybe a few pennies and this approximates the time of early Russian ships hunting sea otters to extinction.

In the period of less than a dime (early to late 1800s) the coastal “economy” went from: “when the tide is out the table is set”  – a Haida saying I often heard growing up.

From, cultures largely-based on reciprocity (for example, potlatches where everything was given away) and trade. From cultures that relied largely on inshore and river fisheries and seashore food gathering.

To, primary financial objectives of business to maximize financial value. Salmon canneries popped up all over the coast like hives on a bad rash.

At least during the rash break-out, opportunities for satisfying family businesses arose; for example, owning and operating a fishing boat. There was a period — about a nickel’s worth — where fishing boats were largely “mom-and-pop” operations and boats and licenses could be successfully handed down to kids. I was raised in the tail end of this time — a couple of pennies worth.

Up and down the Pacific coast, salmon fishing boats could be kept in a family and a decent living made — more importantly, a deeply satisfying lifestyle choice for many.

During this time — entrepreneur — was not really an “in” term. I can remember in the early 1980s, my mom working on projects that called many small businesses “cottage industries”. Wikipedia suggests:

A cottage industry is an industry—primarily manufacturing—which includes many producers, working from their homes, typically part time… Cottage industries were the precursor to the factories that would characterize the Industrial Revolution.

Aside from the canneries and the beginning of the logging boom, the coast was largely a collection of cottage industries. Yet, the canneries and boom in logging companies represent the take over of factory thinking and factory economies.

The invention of larger fishing boats, trawlers, and factory trawlers that process everything without even going to shore — also represent the transition to a factory economy.

And now — apparently, even running a small business requires factory thinking. One of the best selling books on small business is Michael Gerber’s “E-Myth” (Entrepreneurial Myth). Initially published in the mid-1980s, the book and thought process has taken on further iterations. I have a copy of E-Myth Mastery put out in 2005:

The primary financial objective of your business is to maximize financial value… view your company as a financial input-output device, a ‘black box’ of sorts, that takes money in, adds value through its business systems, and puts money out… The most important idea is that of ‘company value’ and the financial benefits to the owner of increasing company value.

Sadly, Gerber compares the small business to the Wall Street mantra of increasing “shareholder value”.

When it comes to salmon, and fisheries in general, on the Pacific coast — the reciprocity economy, to cottage industry economy, to factory economy has changed the relationship; has changed the tools; has changed the values; and most definitely changed how we attempt to measure.

In this day in age: millions of dollars are spent trying to develop computer simulations, models and equations to predict salmon run sizes — work once done by actual people, feet in the streams and on the banks, boats in the actual inlets and bays.

People with actual relationships to places some for thousands of years; people who care deeply about places; people who care about healthy stream and healthy salmon runs.

If we could develop the perfect computer simulation and model — we would no longer need people for fisheries management, or at least not as many. That’s adding business value…

Just ask bank tellers replaced by bank machines; Telus operators replaced by that lovely (and ever-helpful) computer voice; and pilots in commercial jet liners that are only really required for take-off and landing (especially when silly Canada Geese get in the way and the runway becomes a river).