From the BC Treaty Commission News Stories Website, published May 17, 2006.
There is a belief that First Nations people have always enjoyed the same right of access to commercial fisheries as everyone else.
In fact, aboriginal people were for a long time systemically excluded from the commercial fishery in British Columbia. The aboriginal food fishery is an 1880’s invention to regulate and confine aboriginal fishing and to allow the expansion of a commercial fishery. It’s not unlike the reserve system, which segregated aboriginal people from the path of development.
For example, in 1889 the federal fisheries department limited the number of licences on the Fraser River to 450: 350 were issued to cannery-owned boats and 100 went to independent fishers. Most First Nations people were left with only one option in the commercial fishery: work for low wages at a European-owned cannery.
Before the so-called ‘food fishery’ and its limits on where, when and for what purpose fishing could take place, many First Nations had been trading among themselves and with European settlers. In fact, First Nations were the only commercial fishers. But due to pressure from the new non-aboriginal commercial fishers, aboriginal people were made to exchange their fish weirs for nets.
The domination of the commercial fishery by non-aboriginal interests persisted and, until recently, the policies of the federal fisheries department continued to limit aboriginal people’s access.
The Supreme Court of Canada decision in Sparrow in 1990 was a major turning point for aboriginal rights, and specifically aboriginal fishing rights. Sparrow defined aboriginal people’s right to fish for food, social and ceremonial purposes – a right that takes priority over all other uses of the fishery except conservation. Canadian courts did not create the aboriginal right to fish: they simply recognized that it was never extinguished and continues to exist.
In 1992, the federal Aboriginal Fisheries Strategy (AFS) was initiated in response to the Sparrow decision. The AFS attempted to deal with economic access to fisheries. Three pilot sales initiatives in the lower Fraser, west coast of Vancouver Island and the Skeena River were initiated where First Nations received fixed allocations of salmon that could then be sold.
Pilot sales were cancelled in 2003 by the federal fisheries department after a British Columbia court ruled in Kapp that the sales discriminated against non-native fishers. That decision was overturned in the BC Supreme Court when Chief Justice Brenner ruled pilot sales were valid. An appeal of that decision is now before the BC Court of Appeal.
Various programs, such as pilot sales, have attempted to maintain or revive aboriginal participation in commercial fisheries. Justice Brenner, in the Kapp decision, said “one important purpose of the pilot sales program is to test-manage arrangements for possible inclusion in treaties and self-government arrangements.”
Through the Allocation Transfer Program, the federal government purchased commercial licences and quota from willing buyers and transferred these to First Nations. A total of $51.2 million has been spent since 1994 and 197 licences had been transferred as of January 2003.
Today, aboriginal and non-aboriginal fisheries co-exist. Under the BC treaty process, existing undefined aboriginal rights will be defined in a way that balances the aspirations of First Nations with the interests of others. The goal is to provide First Nations with a greater say than they now have in managing the resource and more access to fish and related employment opportunities.
For example, the Nisga’a Treaty and Harvest Agreement sets out an annual allocation of salmon comprising, on average, approximately 26 per cent of the Nass River total allowable catch, subject to conservation. A Joint Fisheries Management Committee manages the fishery.
Fish harvested under the provisions of the Nisga’a Treaty may be sold as long as there is an opening for commercial fishers to also catch fish for sale.
Establishing access to the commercial fishery through treaty negotiations is really about recognizing that fish are not only an integral part of First Nations history and culture, but also important to restoring economic self-sufficiency today.