Yeah… your right, it’s “too complicated” let’s just ignore it… it’s only 150 years of history or so…

What other sort of ridiculous suggestions does the Province of BC have?

Yesterday’s Globe and Mail article by Mark Hume:

Issue of native fishing rights contentious for Cohen commission

The Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River was urged by federal and provincial government lawyers Tuesday not to wade too deeply into the complex and controversial issue of native fishing rights.

But British Columbia Supreme Court Justice Bruce Cohen, who is heading the judicial inquiry ordered last year by Prime Minister Stephen Harper, was also told by aboriginal groups that he can’t ignore the topic, even though an examination of native rights falls outside his mandate.

On the second paragraph, I take issue with Hume’s assertion that the ‘examination of native rights falls outside of Cohen’s mandate’. And certainly take issue with the suggestions of the Province of BC reps.

The ‘terms of reference’ for the Commission 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 – 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…

At every juncture of this term of reference — lies aboriginal fishing rights, not to mention aboriginal rights and title. Basically, through every aspect of the Commission’s work as well as how DFO manages salmon fisheries lie the rights of First Nation people through Section 35 of the Canadian Constitution for example.

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Aboriginal rights refer to the activities, practice, and traditions of the aboriginal peoples in Canada that are integral to the distinctive culture of aboriginal peoples.

I am certainly not a lawyer, however, last time I checked… wild salmon were rather “integral to the distinctive culture of aboriginal peoples” throughout British Columbia and especially throughout the Fraser River, and most especially in relation to Fraser sockeye.

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Let’s look a little more specifically at term “B” of Cohen’s terms of reference — for example, “consider the policies and practices of the Department of Fisheries and Oceans with respect to the sockeye salmon fishery in the Fraser River“…

uh, ok… well at the simplest level, the salmon fishery on the Fraser River is guided by: (1) conservation, then (2) First Nation food, social and ceremonial fisheries, then (3) commercial and sport fisheries. Add in things like the Aboriginal Fisheries Strategy, which largely flowed out of court cases surrounding aboriginal fishing rights, the Pacific Integrated Commercial Fisheries Initiative (PICFI) which is looking at various ‘opportunities’ (aka, bureaucratic bafflegab and bumpf), and so on and so on.

Then add in further complexities such as the recent Ahousaht decision which suggests there is an economic component that must be considered over and above food, social and ceremonial (FSC). For some reason, some folks (esp. federal ministry folks) think that FSC fisheries are some sort of static thing that don’t shift and meld with time. For example, didn’t Statistics Canada find recently that aboriginal people are, by far, the fastest growing segment of the Canadian population?

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Cohen’s term of reference “B”: “…including the Department’s scientific advice…”

Hmmm… ummm… wait doesn’t Canada’s Wild Salmon Policy state:

Principle 3 Sustainable Use.

Resource management decisions will consider biological, social, and economic consequences, reflect best science including Aboriginal Traditional Knowledge (ATK), and maintain the potential for future generations to meet their needs and aspirations.

… reflect best science including aboriginal traditional knowledge… hmmm.

How many initiatives does DFO have right now that are actively and successfully incorporating ATK? I think the answer starts with “z” and ends with “o”…

_ _ _ _ _ _

“…its fisheries policies and programs…”

Oh right… there’s the Aboriginal Fisheries Strategy. And let me quote from DFO’s website:

In 1990, the Supreme Court of Canada issued a landmark ruling in the Sparrow decision. This decision found that the Musqueam First Nation has an Aboriginal right to fish for food, social and ceremonial purposes. The Supreme Court found that where an Aboriginal group has a right to fish for food, social and ceremonial purposes, it takes priority, after conservation, over other uses of the resource. The Supreme Court also indicated the importance of consulting with Aboriginal groups when their fishing rights might be affected.

In response to this decision, and to provide stable fishery management, Fisheries and Oceans Canada (DFO) launched the Aboriginal Fisheries Strategy (AFS) in 1992. The AFS is applicable where DFO manages the fishery and where land claims settlements have not already put a fisheries management regime in place.

Ohhh… so the AFS is applicable where DFO manages the fishery and where land claim settlements (i.e. Treaties) have not be completed?

Gee… last time I checked that’s basically the entire Fraser River watershed with the exception of Tsawwassen.

Oh, and DFO’s fisheries policies and programs are largely guided by case law and court decisions — and many of those policies and programs are most likely to come under more court challenges and case law?

_ _ _ _ _

“…its risk management strategies…”

Ummm… the large avoidance of dealing meaningfully with the significant outstanding issues — like a B.C. Treaty Process that is so flawed and failing… Thus, what does the Department do in the meantime in regards to aboriginal rights and title and fishing rights… it’s called risk management.

How much can we get away with without more First Nations taking us to court.

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“…its allocation of Departmental resources and its fisheries management practices and procedures…”

Well… for this 10,000 full time equivalents strong Ministry, and the 100 or so people listed on Salmon Management Plans — maybe the allocation is not so efficient. Add in the Aboriginal Fisheries Strategy and PICFI and there is over $50 million being allocated to various First Nation organizations for a variety of purposes — with significant inequalities in which organizations receive funding and how much.

Fisheries management practices and procedures? We’ve been there, aboriginal rights and title are vital in this analysis.

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“…including monitoring, counting of stocks, forecasting and enforcement…”

AFS funding is basically only handed out for First Nations to count fish.

Forecasting? One would hope that aboriginal traditional knowledge (ATK) would be a key component of this. How much is involved?

zero.

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From the Globe article:

“This commission has no mandate to inquire into aboriginal rights . . .[and it is] not advisable for you as a commission to make any rulings [on the issue],” said Boris Tyzuk, speaking for the provincial government.

Well Province, and Mr. Tyzuk…  I suppose this demonstrates the Province’s knowledge of aboriginal rights surrounding Fraser salmon (and other related issues surrounding aboriginal rights and title).

Mr. Tyzuk said he has been involved in negotiations on several treaties in B.C. and the fishing components of those treaties “were always the toughest” things to resolve.

Gee, do you think… it’s only 150 years of oppressive history.

And yeah… maybe you folks are right… let’s just avoid those “complex and controversial issues”…

Give me a freaking break… the entire issue is complex and controversial. That’s why the timelines from the beginning were absurd, and why the previous 5 inquiries on the same issue have produced little change…

5 thoughts on “Yeah… your right, it’s “too complicated” let’s just ignore it… it’s only 150 years of history or so…

  1. Brian

    Quote: “Add in things like the Aboriginal Fisheries Strategy, which largely flowed out of court cases surrounding aboriginal fishing rights, the Pacific Integrated Commercial Fisheries Initiative (PICFI) which is looking at various ‘opportunities’ (aka, bureaucratic bafflegab and bumpf), and so on and so on.”

    Seeing as though PICFI is actually trying to help First Nations acheive environmentally sustainable and economically viable commericial fisheries I would hardly call it bureaucratic bafflegab and bumpf. If you were to talk to Secwepemc Fisheries Commission I don’t think they would share the same opinion as they involved in a commercial operation on Kamloops Lake using PICFI funding. If you were to talk to the Osoyoos First Nations they may say in front of tv camera that they are angery at DFO for allowing a recreational fishery on Osoyoos Lake without consultation, but off the record they are would be pretty happy that DFO kicked in a seine boat to help them with the harvest of sockeye from the lake this season. They would be pretty happy that DFO staff spent time with them this season helping catch these sockeye from Osoyoos Lake. All this from the program you call bureaucratic “whatever”. This program won’t last forever, so it will be up to First Nations to make a go of it (commericially) if that is their desire. Right now the challenges are not just markets, but training of people to use certain equipment, off-loading facilities and redneck politicians.

    Quote: “Oh, and DFO’s fisheries policies and programs are largely guided by case law and court decisions — and many of those policies and programs are most likely to come under more court challenges and case law?”

    DFO employees, such as Fisheries Officers, would like nothing better to have some resolution to these issues. They don’t want to keep going to court over these matters….and the courts keep throwing this back into the government’s lap. The reason for these court decisions is the refusal of the GOVERNMENT OF CANADA and the PROVINCE OF BC to address aboriginal title and treaties once and for all. The federal department, DFO, has no jurisdiction to address this issue. It can only react the best it can. The department gets viewed as the bad guy by First Nations, non-aboriginal commericial fishers and recreational anglers, but really it is those above that are calling the shots and dropping the ball. Those are the facts. As long as those in more subordinate positions can keep taking the heat those in government outside the department don’t really care. They just wipe their hands clean. They don’t have to face these stakeholders on a daily basis.

  2. salmon guy Post author

    government ministries adopt aboriginal consultation guidelines all the time. appreciate the perspective but in disagreement on the fact that there’s nothing ministries can do. Full agreement that the Feds continue to drop the ball on this, and definitely the Province. DFO is but one component of the federal government, not separate from it. As such, if there were some brave souls within the ministry they could go over and above the pathetic risk management that the bulk of government ministries do on a day-to-day basis.

    yes, tough for frontline staff, but not un-doable to ask and work for change.

  3. Brian

    DFO is not “separate” from the federal government being that it is a government department BUT (and this is a big BUT) DFO has no authority to negotiate treaties or even deal with aboriginal fishing rights. Ultimately, this is what Marliyn Baptistes, Ernie Creys and Bob Chamberlains of the First Nations community want. I am not sure what consulation guidelines you are talking about, but these are not treaties. They are barking up the wrong tree with the commission, but hopefully federal politicians are getting the message. The real power for this lies with the Federal Parliament of Canada. Change needs to start happening from these people that have been dragging their ass on this. This is what the courts have been telling them.

    Despite what many might believe, DFO has a very good working relationship with many First Nation bands in the Fraser Watershed. Many brave souls within Conservation and Protection, Resource Management and Stock Assessment have established collaborative relationships with First Nations. They are not perfect individuals, but to say that they should go beyond just risk managing does not take in account the challenges they face which are too lengthy to fully go over in this message. People work within the parameters they have, but they only have so much power or authority. Hopefully, the commission will realize some of these “frustrations” and help with the enacting of some change which will ultimately help their relationships with stakeholders.

  4. salmon guy Post author

    no, DFO does negotiate the fisheries chapters of Treaties. The federal Minister of Fisheries yanked those off the BC Treaty Table when the Cohen commission was established. Yes, DFO has the specific mandate to deal with aboriginal fishing rights — that’s why there are the FSC fisheries (food, social and ceremonial). This flowed straight out of court case decisions. Read over some of the case law on the issue — DFO has been named in more than enough cases that have gone to the Supreme Court of Canada — Sparrow, etc.

    Treaties and consultation are two very different things in B.C. Aboriginal rights and title are recognized and affirmed within Canada’s Constitution. Any government dept. that has the potential to infringe upon those rights must consult, and in some cases accommodate. It’s the law.

    And, sadly, no the power for this doesn’t lie in the Federal Parliament.
    Parliament — especially in the current minority environment — is a sad state of school yard bickering and sand box politics that changes every few years at great cost to everyone. There is a responsibility there… but not power. If government ministries would get their shit together and stop ‘risk managing’ aboriginal rights and title, then maybe change could occur. Otherwise it’ll continue to be court challenge after court challenge… adversarial processes like that cost everyone.

  5. KM

    Problem: Bickering over FN harvest rights.
    Solution: Settle the land claims.

    Wow, look how much typing I just saved everybody!

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