Stz’uminus First Nation band members hooted victory whoops and beat drums in celebration when they learned August 9 that the Department of Fisheries and Oceans (DFO) called off the opening of the controversial geoduck fishery north of Ladysmith because of safety concerns.
Non-aboriginal geoduck fishers and aboriginal people were yelling obscenities at each other as a police boat wedged in-between them to keep the peace.
Non-aboriginal sockeye salmon fishers were equally irate at the DFO the same week for allowing Musqueum First Nation fishers to fish commercially a full day before it gave non-aboriginal fishers their turn.
These flare-ups arise because of resentment over court victories aboriginal fishers have earned establishing their constitutional right to fish.
The exact fallout from court decisions, however, is still in flux and being decided by courts.
On July 26, for example, Justice Victoria Gray rejected the argument that certain non-aboriginal commercial fishers should not be charged for:
- unlawfully setting fishing gear during a closed time;
- unlawfully fishing during that time; and
- unlawful possession of salmon.
The commercial fishers in question had argued that they should not be charged because the DFO was not enforcing the law against aboriginal fishers.
The non-aboriginal fishers then established what they called a “protest fishery” that broke DFO regulations.
Gray ruled it was not an “abuse of process” for the Crown to charge the commercial fishers with infractions regardless of whether the DFO was enforcing the law with respect to aboriginal fishers.
“Double standard,” cried commercial fishers in exasperated tones.
“DFO isn’t enforcing the law against aboriginal groups. We had lots of evidence for that. In the end the court says, ‘That’s OK. You can have two standards,’” said Fisheries Survival Coalition executive director Phil Eidsvik.
Indeed, two standards have been the case ever since the Canadian Constitution was ratified in 1982.
Section 35 of the Constitution enshrines “existing aboriginal and treaty rights” – a vague statement that left the door open for court interpretation.
The first significant Supreme Court of Canada decision on aboriginal fishing rights after the Constitution was ratified was the Sparrow decision in 1990.
That judgment declared that all aboriginal groups have a constitutionally protected right to fish for food, social and ceremonial purposes and that this right has priority over all commercial fishing, according to University of British Columbia law professor Douglas Harris.
Local aboriginal groups do more than merely fish for ceremonial purposes.
Several that fish for commercial purposes include:
- the Musqueum;
- the Tsawwassen First Nation; and
- the Nishga’a First Nation.
The legal ability of each to operate commercial fisheries evolved separately, but all can trace their agreements back to the Supreme Court of Canada’s 1996 Gladstone decision.
That pivotal judement ruled that B.C.’s Heiltsuk First Nation had a constitutional right to fish commercially because long before contact with Europeans, the band had harvested kelp fronds covered with layers of herring spawn.
The case gave commercial fishing rights exclusively to the Heiltsuk and did not affect other aboriginal groups, Harris said.
However, after that decision, bands such as the Musqueum began negotiating agreements with the DFO that enable them to fish commercially.
These agreements may be challenged in court, Harris said. So far, they are simply agreements with bureaucrats.
The Tsawwassen band’s right to fish commercially is a bit stronger. It is entrenched in a harvest agreement that was signed by the band, Ottawa and Victoria signed at the same time that those three parties all signed a treaty. But while the Tsawwassen treaty is protected by the Constitution, the Tsawwassen harvest agreement is not.
“In the Nisga’a treaty, it is written that they have ‘fishing rights.’ The treaty does not stipulate whether those rights are for food and ceremonial purposes or for commercial purposes. So, they can catch fish for food or for sale,” Harris said.
Harris also took issue with a term that commercial fishers bandy about freely: “race-based fishery.”
The term implies that different laws for different people are racist and therefore breach commercial fishers’ equality rights under Section 15 of the Constitution’s Charter of Rights and Freedoms.
Commercial fishers failed when they took this argument all the way to the Supreme Court of Canada in 2008. Canada’s top court then ruled, in what is known as the Kapp decision, that authorizing aboriginal commercial fishing rights did not breach Section 15.
Harris explains that the right that aboriginal groups have to fish only coincidentally overlaps with their aboriginal race.
“Courts are really recognizing the prior property rights of indigenous peoples,” he said. “These are rights that arise not on the basis of race but because there were political communities here before the rest of us arrived,” he said.
“They’re based on prior occupation and not on race.”
Ownership of land in some countries around the world was established thanks to a conquest. There was a war or a battle and the victorious side claimed ownership.
That did not happen in Canada.
European settlers decided to negotiate with aboriginal people by signing treaties. That’s why in much of the rest of Canada, the discussion around aboriginal rights is focused on how a specific treaty can be interpreted.
In B.C., there are few treaties. So, most of the conflicts that arise are settled in court using common law precedents.
“There is a lack of clarity,” Harris said. “We don’t have treaties to fall back on. We have the beginnings of an understanding of what it means to have aboriginal rights.”