The West Coast Aboriginal Fishery

by Dawn Mills

Summer 1997

The practice of fishing is the fundamental expression of who West Coast and Interior First Nation peoples are. In particular, intrinsic cultural knowledge of West Coast and Interior First Nation peoples is embodied in the management of their resources and in the knowledge of their sharing.

Who West Coast and Interior First Nation peoples are is articulated through sets of complex and sophisticated laws that establish and define their institutions and codes of conduct; at the centre for most, lies the fishery.

In late 1996, then Minister of Fisheries and Oceans, the Hon. Fred Mifflin, sought a review of the Aboriginal Fishing Strategy and Pilot Sales Program. Mr. James Matkin conducted a review receiving input from all fish users, that is the commercial, sports, and Aboriginal sectors. ARC Vancouver was asked by the Sto:lo Nation to make a presentation at the public meetings.

The review process initiated in 1996 of the Fishery is not over, nor is it likely that fundamental changes will occur within the Aboriginal Fishery. That is, the numbers of fish caught by Aboriginal peoples for food, sales or ceremony will remain at eight hundred thousand fish; whereas the total allowable catch for the commercial and sports sectors hovers around twenty-six million fish. This article will illustrate that through legislation First Nations peoples were and still are excluded from participation in the Fishery, and the present allotments are far from adequate.

Before the Sparrow decision (1990), generations of First Nation peoples found themselves in conflict with Canadian law over the right to exercise their right to fish, hunt, and gather foodstuff for sustenance, ceremony and societal purposes. Since the Supreme Court decision, the constitutional entrenchment of First Nations hunting, fishing and gathering rights have been affirmed.

The constitutional recognition of Aboriginal and treaty rights does not provide immunity from government regulations. It does, however, give a measure of control over government conduct and is a check of legislative power. In addition, before the imposition of any limitation on the right to fish there must be consultation between Aboriginal people and the federal government. Further, the fishing by Aboriginal people has priority over any other interest, except conservation.

The fishery from 1877 to 1990

Historically, the Aboriginal food fishery has been misinterpreted by other users. In 1877 the Dominion Fisheries Act was the first instance where the Crown started to regulate the Aboriginal fishery through the issuing of licences to Indians to allow them to catch fish for their own use. The 1888 British Columbia Fishing Regulations further limited how Indians could conduct their fishery and curtailed the sale of fish by First Nation peoples in British Columbia. The Fishing Regulations Act was amended in 1894 to state that special permission was required by Indians to fish. This was strengthened in 1910 through the use of permits which stipulated the area and time that the fishing activities could be undertaken, as well as what gear could be used. In 1977 the word 'permit' was changed to 'licence', and this licence prohibited the sale or the trading of fish. Another regulation introduced in 1981 specified both the species and the quantity of fish that could be taken. These old licencing schemes resulted in countless arrests and confrontations between the Department of Fisheries and Oceans and First Nations. In addition to arrests, the Department of Fisheries and Oceans issued licences to any Status Indians, including to people who were not from the harvesting area.

Conflicts with these regulations resulted in the Sparrow decision, where the main victory was not clarification of the right to fish, but how the right to fish would be worked out between Aboriginal communities and the Government of Canada.

The fisheries since 1990

The right to fish is a communal right held in common by an Aboriginal community. In acting with this fiduciary obligation, the Crown, through the Department of Fisheries and Oceans, has entered into Fisheries Agreements with First Nation communities, covering the area, fisheries allocations, habitat management,enforcement responsibilities, monetary assistance, and training. These Fisheries Agreements are either negotiated annually or on a multi-year basis.

There is no definition or limitation to Aboriginal and Treaty rights within the Fisheries Agreement, nor is there any limitation to the Minister's authority under the Fishery Act. In order to achieve the goal of reallocation, the Department of Fisheries and Oceans held a voluntary licence retirement program, which was known as the 'Industrial Solution' and currently referred to as the Mifflin Plan.

The Pacific Licence Retirement Plan

In order to comply with the Sparrow decision, the Pacific Licence Retirement Program was initiated in June 1992. This program was designed to offset reallocation of salmon to Aboriginal communities for food and commercial purposes through the voluntary retirement of commercial salmon, seine, troll and gillnet licences by the Department of Fisheries and Oceans. The licences reallocated represent about 2% of the fleet (boats). However, this time around First Nations do not want an Industrial Solution, they want the same assurances to fish as the commercial fishery industry. First Nations would like the Aboriginal fishery expanded to include all species of marine life, and not restricted to salmon.

Communal Licences

Aboriginal fisheries are licenced through communal licences under the authority of the Aboriginal Communal Fishing Licences Regulations, approved June 16, 1993. This regulation replaces individual food fishing permits and enable the First Nations to be involved in the management and distribution of effort and catch. Bands designate individuals to fish and the Department of Fisheries and Oceans, in consultation with Aboriginal communities, control fishing times, area, and gear type.

It is importamt to understand that up to now the only fishery that has been allocated is the food fishery. Entitlements for ceremonial and societal reasons have yet to be exercised in their fullest meaning by all Aboriginal communities who have a traditional fishery. In addition, though the Sparrow decision clearly states that the Aboriginal Fishery is a priority after conservation, the allocation is only 3% of the Canadian Total Allowable Catch (fish) and this fishery is not first, but last after obligations have been allocated to the Pacific-Salmon Treaty, the commercial and sports fishery.

Pilot Sales Program

The sale of Native cought fish has been prohibited since 1888. Native groups in B. C. have long sought the legal sale of fish as a means to provide economic opportunity, a route to greater self-sufficiency and dignity. In 1992 the Department of Fisheries and Oceans designed the Pilot Sales Program while several court decisions were pending (Regina v. Gladstone; Regina v. N.T.C. Smokehouse; Regina v. Vander Peet). This was done in the spirit of Delgamuukw, where the Department elected to negotiate resolutions as opposed to the adversarial process of litigation.

During the initial period of the Pilot Sales Program, between 1992 and 1993, the Department of Fisheries and Oceans turned over forty-nine retired Commercial Licences to coastal and inland river First Nation communities. This program grants salmon sales to First Nation communities, calculated on the catching capacity of the boats that previously held the licences. This figure has been frozen in time and needs to be adjusted according to population.

In 1992 three agreements, tied to the Pacific Licence Retirement Program, were negotiated between the Department of Fisheries and Oceans and Native peoples to allow pilot sales projects covering the Lower Fraser, Somass and the Skeena Rivers. In June 1992 the first agreements were signed with the Sto:lo, Musqueam and Tsawwassen First Nations. The Sto:lo traditionally fish on the Fraser River between Fort Langley and the Fraser Canyon, the Musqueam and Tsawwassen fish the mouth and lower reaches of the Fraser River.

A new program began in 1994 that retired commercial licences and transferred them to Aboriginal communities under the Aboriginal Fishery Strategy. The licences were acquired from commercial fishers on a voluntary basis and at fair market value, and operate as commercially-held licences subject to commercial fishery rules and regulations.

This program applies to a broad range of commercial fishing activites and has been limited to an upper ceiling of 5% of licences per fishery over six years. Thus, the Total Allowable Catch has never been altered, only reassigned.

The program allows for modest increases in allocation for 'in-river' projects and small scale 'value added' opportunities. Profits from these commercial opportunities in B.C. assist in the support of the Aboriginal role in sustainable fisheries management.

The role of salmon to West Coast First Nations

The role of salmon to West Coast First Nations has always been underestimated by non-Natives. Not only has salmon nourished West Coast Aboriginal peoples for thousands of years, but salmon and other marine resources are articulated in every aspect of First Nations non-material culture. We as Canadians have made a commitment to address our past as to how we have treated the indigenous population. We have fallen short in honouring this commitment. If we take the time as a country to listen to First Nation peoples they will tell us not only of a past, but a future. We must address the social justice issue of assuring First Nation communities retain their cultural heritage. In doing so we must accept their communities' access to marine resources in order that they can eat, conduct ceremonies and have an economic base. First Nations' share of the marine resources should be based on the requirements of First Nations communities, as defined by First Nations. This stems from their inherent right to self-government and the Crown's fiduciary reponsibility. These requirements include the Aboriginal right to sell, barter and trade marine resources as well as being able to meet the needs for sustenance, societal and ceremonial purposes

The practice of fishing is the fundamental expression of who West Coast and Interior First Nation peoples are. In particular, intrinsic cultural knowledge of West Coast and Interior First Nation peoples is embodied in the management of their resources and in the knowledge of their sharing.

Who West Coast and Interior First Nation peoples are is articulated through sets of complex and sophisticated laws that establish and define their institutions and codes of conduct; at the centre for most, lies the fishery.

In late 1996, then Minister of Fisheries and Oceans, the Hon. Fred Mifflin, sought a review of the Aboriginal Fishing Strategy and Pilot Sales Program. Mr. James Matkin conducted a review receiving input from all fish users, that is the commercial, sports, and Aboriginal sectors. ARC Vancouver was asked by the Sto:lo Nation to make a presentation at the public meetings.

The review process initiated in 1996 of the Fishery is not over, nor is it likeky that fundamental changes will occur within the Aboriginal Fishery. That is, the numbers of fish caught by Aboriginal peoples for food, sales or ceremony will remain at eight hundred thousand fish; whereas the total allowable catch for the commercial and sports sectors hovers around twenty-six million fish. This article will illustrate that through legislation First Nations peoples were and still are excluded from participation in the Fishery, and the present allotments are far from adequate.

Before the Sparrow decision (1990), generations of First Nation peoples found themselves in conflict with Canadian law over the right to exercise their right to fish, hunt, and gather foodstuff for sustenance, ceremony and societal purposes. Since the Supreme Court decision, the constitutional entrenchment of First Nations hunting, fishing and gathering rights have been affirmed.

The constitutional recognition of Aboriginal and treaty rights does not provide immunity from government regulations. It does, however, give a measure of control over government conduct and is a check of legislative power. In addition, before the imposition of any limitation on the right to fish there must be consultation between Aboriginal people and the federal government. Further, the fishing by Aboriginal people has priority over any other interest, except conservation.

The fishery from 1877 to 1990

Historically, the Aboriginal food fishery has been misinterpreted by other users. In 1877 the Dominion Fisheries Act was the first instance where the Crown started to regulate the Aboriginal fishery through the issuing of licences to Indians to allow them to catch fish for their own use. The 1888 British Columbia Fishing Regulations further limited how Indians could conduct their fishery and curtailed the sale of fish by First Nation peoples in British Columbia. The Fishing Regulations Act was amended in 1894 to state that special permission was required by Indians to fish. This was strengthened in 1910 through the use of permits which stipulated the area and time that the fishing activities could be undertaken, as well as what gear could be used. In 1977 the word 'permit' was changed to 'licence', and this licence prohibited the sale or the trading of fish. Another regulation introduced in 1981 specified both the species and the quantity of fish that could be taken. These old licencing schemes resulted in countless arrests and confrontations between the Department of Fisheries and Oceans and First Nations. In addition to arrests, the Department of Fisheries and Oceans issued licences to any Status Indians, including to people who were not from the harvesting area.

Conflicts with these regulations resulted in the Sparrow decision, where the main victory was not clarification of the right to fish, but how the right to fish would be worked out between Aboriginal communities and the Government of Canada.

The fisheries since 1990

The right to fish is a communal right held in common by an Aboriginal community. In acting with this fiduciary obligation, the Crown, through the Department of Fisheries and Oceans, has entered into Fisheries Agreements with First Nation communities, covering the area, fisheries allocations, habitat management,enforcement responsibilities, monetary assistance, and training. These Fisheries Agreements are either negotiated annually or on a multi-year basis.

There is no definition or limitation to Aboriginal and Treaty rights within the Fisheries Agreement, nor is there any limitation to the Minister's authority under the Fishery Act. In order to achieve the goal of reallocation, the Department of Fisheries and Oceans held a voluntary licence retirement program, which was known as the 'Industrial Solution' and currently referred to as the Mifflin Plan.

The Pacific Licence Retirement Plan

In order to comply with the Sparrow decision, the Pacific Licence Retirement Program was initiated in June 1992. This program was designed to offset reallocation of salmon to Aboriginal communities for food and commercial purposes through the voluntary retirement of commercial salmon, seine, troll and gillnet licences by the Department of Fisheries and Oceans. The licences reallocated represent about 2% of the fleet (boats). However, this time around First Nations do not want an Industrial Solution, they want the same assurances to fish as the commercial fishery industry. First Nations would like the Aboriginal fishery expanded to include all species of marine life, and not restricted to salmon.

Communal Licences

Aboriginal fisheries are licenced through communal licences under the authority of the Aboriginal Communal Fishing Licences Regulations, approved June 16, 1993. This regulation replaces individual food fishing permits and enable the First Nations to be involved in the management and distribution of effort and catch. Bands designate individuals to fish and the Department of Fisheries and Oceans, in consultation with Aboriginal communities, control fishing times, area, and gear type.

It is importamt to understand that up to now the only fishery that has been allocated is the food fishery. Entitlements for ceremonial and societal reasons have yet to be exercised in their fullest meaning by all Aboriginal communities who have a traditional fishery. In addition, though the Sparrow decision clearly states that the Aboriginal Fishery is a priority after conservation, the allocation is only 3% of the Canadian Total Allowable Catch (fish) and this fishery is not first, but last after obligations have been allocated to the Pacific-Salmon Treaty, the commercial and sports fishery.

Pilot Sales Program

The sale of Native cought fish has been prohibited since 1888. Native groups in B. C. have long sought the legal sale of fish as a means to provide economic opportunity, a route to greater self-sufficiency and dignity. In 1992 the Department of Fisheries and Oceans designed the Pilot Sales Program while several court decisions were pending (Regina v. Gladstone; Regina v. N.T.C. Smokehouse; Regina v. Vander Peet). This was done in the spirit of Delgamuukw, where the Department elected to negotiate resolutions as opposed to the adversarial process of litigation.

During the initial period of the Pilot Sales Program, between 1992 and 1993, the Department of Fisheries and Oceans turned over forty-nine retired Commercial Licences to coastal and inland river First Nation communities. This program grants salmon sales to First Nation communities, calculated on the catching capacity of the boats that previously held the licences. This figure has been frozen in time and needs to be adjusted according to population.

In 1992 three agreements, tied to the Pacific Licence Retirement Program, were negotiated between the Department of Fisheries and Oceans and Native peoples to allow pilot sales projects covering the Lower Fraser, Somass and the Skeena Rivers. In June 1992 the first agreements were signed with the Sto:lo, Musqueam and Tsawwassen First Nations. The Sto:lo traditionally fish on the Fraser River between Fort Langley and the Fraser Canyon, the Musqueam and Tsawwassen fish the mouth and lower reaches of the Fraser River.

A new program began in 1994 that retired commercial licences and transferred them to Aboriginal communities under the Aboriginal Fishery Strategy. The licences were acquired from commercial fishers on a voluntary basis and at fair market value, and operate as commercially-held licences subject to commercial fishery rules and regulations.

This program applies to a broad range of commercial fishing activites and has been limited to an upper ceiling of 5% of licences per fishery over six years. Thus, the Total Allowable Catch has never been altered, only reassigned.