Judicial Inquiry into Fraser River Fishery “Racist”

By Lloyd Dolha

Prime Minister Stephen Harper stunned BC aboriginal leaders in early October at a First Nations Summit meeting when he re-affirmed his position in opposing a “race-based” fishery on the West coast.

“To come into our territories and to openly state his racist assertions is an affront to First Nations and a direct challenge to the courts,” said Chief Judith Sayers, executive member of the First Nations Summit.

In reiterating his intentions during his Vancouver visit, the prime minister said federal Fisheries minister Loyola Hearn is working on several initiatives to reintegrate aboriginal and non-aboriginal fisheries. Harper also stated that the constitutional rights of aboriginal people to a food fishery will be respected and stressed that BC First Nations will get a decent share of the commercial salmon fishery through treaties and other arrangements.

Harper had outraged aboriginal leaders nationally in July in a letter to the Calgary Herald where he made his intentions known by stating,” … in the coming months, we will strike a judicial inquiry into the collapse of the Fraser River salmon fishery and oppose racially divided fishery.”

The Aboriginal Fishing Strategy (AFS), the basis of the so-called “race-based” fishery, was initiated in 1992, under the Mulroney Tory government. It was in response to the 1990 Supreme Court of Canada decision in Sparrow, which established the aboriginal right to fish for “food, ceremonial and societal” purposes, second only to the conservation of the resource.

Sparrow had the effect of forcing the Department of Fisheries and Oceans to act with respect to the aboriginal fisheries. A particularly significant sentence from the Pearse-Larkin inquiry report clearly describes how the decision radically altered DFO’s managerial role.

“The Sparrow decision forced the government to respond to a partly-defined and evolving aboriginal right to fish, protected by the Constitution, without prejudicing the ultimate resolution of the issue.
Sparrow did not specifically address the issue of an aboriginal commercial right to sell, but the AFS pilot sales program was developed and released in a time of uncertainty when several court decisions were pending (Gladstone, N.T.C. Smokehouse and Vanderpeet) that dealt specifically with the question of an aboriginal right to the commercial sale of salmon.

Against this background, the department developed the AFS, which it considered the federal government’s response to the need to expand aboriginal peoples role in the fisheries while, at the same time, conserving fish stocks and maintaining a stable environment for resource sharing.

“In Sparrow, the court did not address the issue sales because they said they weren’t asked to. Also, the court did not address the issue of a quota or harvest ceiling,” said Ernie Crey, advisor to the Sto:lo Tribal Council. “Because the court did neither, in the upper reaches of the Department of Fisheries and Oceans and amongst the major salmon processors and throughout the salmon fleet, a sense of panic set in.

“In advance of 1992, they put their heads together to come up with a plan to contain and control the aboriginal fishery – to cap any growth in the number of fish taken by the aboriginal community in the province. That plan became the Aboriginal Fishing Strategy,” said Crey.

To accomplish this the department initiated a buy-back program of commercial fishing licenses. Some 75 commercial fishing licenses were retired voluntarily to offset the aboriginal allocation of about 800,000 fish.

Crey said Harper’s call for a judicial inquiry is moot because there have already been three inquiries into the Fraser River sockeye, whose recommendations have yet to be fully implemented.
Those inquiries found any decline in salmon stocks were due to miscalculations in the number of salmon returning to the spawning beds, higher water temperatures and lower levels of water.

“The Sto:lo’s official position is we’re opposed to an judicial inquiry, because, as I said, there have been three previous inquiries,” said Crey. “It will also be very costly. We’re told in excess of $20 million.”

The AFS is also supported in case law. In the most recent decision, June 2006, the BC Court of Appeal decided in Kapp, that allocations for commercial purposes is not discriminatory and represents a legitimate policy decision that is well within the authorities in the fisheries legislation.

“There is little support from First Nations, industry, sports and environmental groups for yet another inquiry of the Fraser River fishery,” said AFN regional chief Cliff Atleo.

“If the Harper government is truly financially accountable, rather than spend millions of dollars on anther inquiry, use those funds to sustain the fishery by enhancing fisheries management, scientific research and recovery efforts of endangered runs such as the Cultus, Early Stuart ands Sakinaw Lake sockeye.”