A couple of days ago a friend who is one of a disturbingly small number of steelhead angling guides with any history of advocacy for steelhead as opposed to more rod days and limiting competition forwarded me the article below. Thank you Keith Douglas. This is an important bit of journalism that deserves a lot more attention than it is likely to receive.
As you can see, this appeared in the National Post on October 17. Whereas it refers specifically to far away fisheries, the principles and the court decision highlighted apply equally across Canada. Here in British Columbia the fishery user group that is most jeopardized by the evolving scenario is the steelhead angling community. Here’s why.
That well known jurisdiction split whereby the federal government (DFO) has domain over both commercial and First Nations fisheries while the province (lets just leave the latest ridiculous abbreviation for the Ministry responsible and reference them as BC) has responsibility for steelhead is a major obstacle. History proves steelhead do not get anywhere near the attention deserved from DFO when any management recommendations intended to improve the lot of steelhead are on the table. The constitutionally prescribed rights of First Nations to harvest anything for food, social and ceremonial purposes in all cases where conservation does not take precedence is well established throughout the steelhead range in BC. The task of proving to DFO there is anything such as a conservation problem for steelhead is mission impossible. History bears that out in spades. Look to Bella Coola, Stamp/Somass, and interior Fraser stocks as prime examples. Chinook and sockeye may qualify as conservation situations (e.g. Skeena and Fraser 2017) that force DFO to restrict FN fisheries but steelhead just do not count, no matter how obvious the conservation concern seems. In fact, restrictions on those two salmon species on the Skeena last year and this year and the Fraser last year only added to the pressure on steelhead, by far the least abundant species of any present. Unless and until there is a broadly accepted agreement that a conservation issue for steelhead exists, there is zero chance that FN fishers can be regulated off the water and/or that any FN fisher who does not comply will face repercussions. Duelling science, endless process and consultation will occur while the status quo prevails and impoverished steelhead stocks slip into oblivion. As bad as the circumstances described by journalist Robson are for lobsters in New Brunswick where one government fisheries agency prevails, we are in a far worse situation out here on the Pacific coast with a species that overlaps two and gets no recognition from the third (there are 203 FNs in BC that our governments have decreed must be treated as equals).
Some other elements of the picture to keep in mind – The FN population of British Columbia is listed at 5.4% of the overall population (about 250K of 4.65M). It is the fastest growing segment of our population. Forty-five percent of the FN population is less than 25 yrs old, a percentage far greater than for any other definable component. That just serves to emphasize how quickly the FN population can be expected to grow in the foreseeable future. Consider those numbers against fish resources (especially steelhead) that are trending oppositely. Then superimpose government’s inability and/or unwillingness to balance those opposing forces and tell me what lies ahead.
John Robson: You can’t give the same fish to different people. But the government tries to
Our elites sincerely mean to give aboriginals traditional rights to the same water they also want to keep under the existing fishery
Fishing boats loaded with lobster traps head from Eastern Passage, N.S. on Tuesday, November 27, 2012 as the lobster season in southwestern Nova Scotia gets underway. There is growing tension between lobster fishermen in southwestern Nova Scotia over the Indigenous ceremonial and food fisheries. THE CANADIAN PRESS/Andrew Vaughan
October 17, 2017 11:50 AM EDT
The Nova Scotia aboriginal lobster fishery dispute has bad governance written all over it. Broken promises, unclear rules, a breakdown of trust, even extralegal violence. But look deeper and you’ll find even worse governance.
Aboriginals are frustrated that negotiations with the federal government for a clear permanent settlement, here as elsewhere, are taking forever to get nowhere. Non-aboriginals are frustrated that the law seems both unequal and unenforced. And behind this practical mess, as usual, lies a conceptual one.
The problem began, in the narrow sense, with the classic 1999 Supreme Court ruling R. v Marshall, which held that Mi’ kmaq and Maliseet had and did not have an unlimited right to harvest resources, including eels. And let me emphasize here that, contrary to common usage in which “the government” wins or loses in court, the judiciary is a branch of government.
Behind this practical mass lies a conceptual one
One that in this case tripped over its own feet. In its initial September 1999 ruling, the court seemed to grant what many aboriginal activists want and expect, namely exemption from Canadian law under nation-to-nation treaties that predate Confederation. But when people realized what the court had said, including its own members, it issued a hasty “clarification” two months later that, in fact, aboriginals were not exempt from Canadian law.
Aboriginals naturally felt betrayed. And the situation has gotten worse since. As the Post just noted about the increasingly acrimonious lobster fishery question, the federal executive branch of government responded to the initial post-Marshall crisis by signing “interim” deals with various aboriginal groups in the Maritimes and Quebec that shovelled money at them to buy fishing gear and licenses. But talks on a permanent settlement have dragged on and on with no end in sight.
It is possible to ascribe this result to familiar generic failings of government, the glacial pace of its impenetrable processes due to perverse incentives. In private life, time is money. In government, it’s not, because nobody is risking their own assets. Nobody from Justin Trudeau to the humblest clerk will lose their mortgaged house if interest payments on the national debt become unmanageable. And prosecutors and judges get paid every day a court case drags on, unlike defendants or plaintiffs. (Typically, the 1999 Marshall decision concerned eels caught and sold in 1993.)
In private life, time is money. In government, it is not
So aboriginals might think it’s just the same old same old. High-sounding promises, endless “Meegwetches” and “we’re on traditional territory” from politicians, but at the negotiating table all maze and no cheese. Like oil companies with pipelines. Everybody gets it. Right?
Were it so it would still be inexcusable, especially with so much at stake. But it’s not. And here I emphasize again that the court is part of “the government,” because its behaviour over aboriginal fisheries exemplifies the modern style of government that tries to give everything to everybody and is genuinely stunned to find that it can’t. Nowhere is the conceptual mess worse than on the aboriginal file.
Our kindly elites sincerely mean to give aboriginals broad traditional rights to the same water they also intend to keep under the existing fishery. But it just can’t be done, a point understood within the bureaucracy. Thus, the rubber must never hit the road in these negotiations. And that’s not governing.
To govern is to choose
To govern is to choose. Government is force, and when it makes decisions, some people win, others lose, and if you refuse to go along you go to jail. Which is why government should be restricted to doing only those things it alone can do, and not be expected to do them very well or soothingly. But reaching a clear decision on key aboriginal issues is one thing it must do.
Aboriginals either are, or are not, constitutionally entitled to “self-government,” in the broad sense of being separate polities that make their own fundamental law. You cannot give them Nova Scotia while keeping it for everybody else. Not the fish, not the trees, not the land.
You can give some of it to one group and some to another. And by “some of it” I don’t necessarily mean lines on the ground. You could let people of particular races, however legally defined, catch only so much of this fish at that time of year while others may catch more or at different times. But you can’t give the same fish to two different people.
Governments want to. Politicians want to. Judges want to. And I guess it’s nice in a way that they want everyone to have lots of everything. But the miracle of the loaves and the fishes is not within their capacity. It would be bad enough if they were pretending to think it was. The real problem here is that they do think so.
The result of this high-minded confusion is a breakdown of governance and trust that hurts everyone.