by Lloyd Dolha
The Supreme Court of Canada has ended a ten-year legal battle over the federally-sponsored Aboriginal Fishing Strategy on the west coast, ruling that the exclusive aboriginal-only fishery did not violate the constitutional rights of non-aboriginal fishermen because the disadvantage of aboriginal people is indisputable.
“The bands granted the benefit were disadvantaged in terms of income, education and a host of other measures. This disadvantage, rooted in history, continues to this day,” ruled the Supreme Court.
“The SCC clearly recognizes that the purpose of the communal fishery licenses provided to First Nations communities by DFO (Department of Fisheries and Oceans) are to provide “economic opportunities through sale or trade” and that the government’s aim was to address the indisputable disadvantage of aboriginal”, said Grand Chief Ed John of the First Nations Summit political executive.
The history of the epic legal battle is long and convoluted.
In the summer of 1998, a number of commercial fishermen conducted a protest fishery under the banner of the B.C Fisheries Survival Coalition, in protest of an exclusive 24 hour aboriginal-only fishery allocated to three lower mainland First Nations.
Despite reports citing global warming, rising water temperatures and destruction of critical habitat, the 1998 salmon season was characterized by confrontations between commercial, recreational and aboriginal fisherman who vigorously protested limitations on available openings in light of DFO’s attempt to save dwindling coho stocks.
In particular, the B.C. Survival Coalition, a loosely affiliated group of non-aboriginal fisherman opposed to the Aboriginal Fishery Strategy (AFS) and its policy of commercial fisheries for aboriginal people were bolstered in their militant activities by a January 8, 1998, ruling of provincial court judge Howard Thomas who found there was no legal basis for aboriginal commercial fisheries in the federal Fisheries Act. For that finding, Judge Thomas went back to the Magna Carta of 1215, which ended the Crown’s right to declare exclusive fisheries at its pleasure.
The case at trial was an illegal fishing charge against Reform MP John Cummins. First Nations leaders pointed out that the lawfulness of Cummins’ fishing was the only issue which Thomas had the need or jurisdiction to decide. They contended that Thomas made his ruling without the benefit of aboriginal fishing rights evidence because no First Nation was directly involved and it was only at the urging of Cummins’ lawyer that the judge ventured to give his legal opinion on the legality of aboriginal commercial fisheries.
Then on August 8, 1998, Judge Thomas stayed some 60 charges against 24 Survival Coalition members, including spokesperson Phil Eidsvik, for fishing in protest during aboriginal commercial fisheries in the 1997 and 1996 seasons, citing his own January ‘98 ruling as proof.
The Survival Coalition interpreted this as the end of the AFS, rendering his members immune from prosecution. Further bolstered by the stayed charges, at least 300 Fraser River gill-netters participated in a protest fishery on August 19, 1998, during an aboriginal commercial fishing opening. The gill-netters engaged in the illegal action despite an announcement on the previous day that additional openings would be announced for gill-netters, anglers, and trollers.
DFO officials later confirmed that the August 8, 1998 decision of Judge Thomas will be appealed and DFO expects to charge at least 140 gill-netters for their participation in the illegal fishery.
On July 28, 2003, Judge Kitchen of the Provincial Court of British Columbia entered a judicial stay of proceedings for all accused charged in the matter.
Judge Kitchen found that the pilot sales program was unconstitutional as it violated the Charter of Rights and Freedoms. He found that the equality rights of commercial fishermen had been violated, as they were not treated the same as the aboriginal fishermen fishing pursuant to the pilot sales program.
Within twenty-four hours of Judge Kitchen’s decision DFO cancelled all aboriginal communal licences issued pursuant to the Pilot Sales Program.
The Crown appealed Judge Kitchen’s decision and several First Nations intervened in the appeal to argue that the pilot sales program was not unconstitutional.
Chief Justice Brenner of the BC Supreme Court heard the appeal and issued his decision on Monday July 12, 2004.
The Chief Justice has allowed the appeal and found that the pilot sales program and the aboriginal communal licences which allow the sale of fish caught do not violate the constitution or the equality rights of commercial fishermen.
The Chief Justice said that aboriginal people are disadvantaged in Canada and have been subject to historical inequality and prejudice. The aboriginal Fishing Strategy of DFO (which included the pilot sales program) has provided an economic opportunity to First Nations.
The Chief Justice further said that the pilot sales program did not result in denial or demeaning of the commercial fishermen. No commercial openings were displaced because of the pilot sales program. Hence, the Chief Justice found there was no breach of the Charter equality provisions. The appeal judge later sentenced the ten convicted accused. He suspended sentence for six months without conditions and he imposed a fine of $100 with respect to each of them.
The commercial fishermen appealed the decision of the BC Supreme Court to the BC Court of Appeal, and raised non-Charter constitutional issues concerning the creation of exclusive “race-based” fisheries that were not authorized by Parliamentary legislation or, if so authorized, were beyond the authority of the federal government.
The BC Court of Appeal dismissed the appeal on June 8, 2006, all five judges agreeing that there is no merit to either the non-Charter constitutional issues argument, or the 15(1) Charter arguments. The case was appealed to the Supreme Court of Canada for the unanimous final ruling.
“This is a compelling case for the government to renew this program,” added Chief John. “Previously, DFO immediately cancelled the “pilot sales” program following a provincial court decision. We welcome the SCC decision that ‘‘ameliorative programs targeting a disadvantaged group do not constitute discrimination.” said John.
The BC Survival Coalition, which spent some $2 million on the case says it will look at its legal options, but will continue its political fight against the ruling.