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:
 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?:
 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.”
…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.
 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.