By Lloyd Dolha
The Kwicksutainueuk/Ah-Kwa-Mish First Nation (KAFN) expressed deep frustration and disappointment that appeals have been filed to overturn a provincial court ruling that supported KAFN’s bid for a class action lawsuit against the BC provincial government. The lawsuit argues that open-net fish farms (approved by the province in Broughton Archipelago on the northeastern tip of Vancouver Island) have devastated their Aboriginal fishing rights to wild salmon. “The class action law suit seeks to answer questions First Nations in the Broughton Archipelago have known the answer to for some time, but governments have failed to listen,” said KAFN Chief Bob Chamberlin. “We have turned to the courts to ask for a fair determination as to the extent that open-net salmon aquaculture has impacted wild salmon stocks in the Broughton Archipelago, and whether the province’s authorization and regulation of salmon aquaculture has caused the impact.”
The two levels of government are seeking to overturn a December 2010 decision by Justice Harry Slade of the Supreme Court of British Columbia that supported KAFN’s application for certification of their class action lawsuit alleging the fish farms’ detrimental impacts on wild salmon stocks within their traditional fishing areas. The province had tried unsuccessfully to block the ruling by arguing First Nations are barred from class action law suits because all members of the First Nation would be required to individually prove their Aboriginal fishing rights. More specifically, KAFN alleges that the province’s licensing of fish farms and exercise of regulatory authority over their operation has resulted in sea lice infestations in wild salmon stocks, which constitutes an infringement on their constitutionally-protected Aboriginal right to fish.
This is the first class action lawsuit advanced by a First Nation in Canada to protect aboriginal rights. The KAFN are asserting an aboriginal right to fish in the Broughton Archipelago for wild salmon for food, social and ceremonial purposes, as espoused in the 1990 Sparrow decision that identified an Aboriginal fishing right. “With the certification of the class-action, we hoped that a long history of government delay, denial and distraction to avoid these questions would come to end. I am saddened, but not surprised at all to learn that the federal and provincial governments have chosen the path of more legal bills and delays over a sustainable fishery, fairness, and progress on this important issue,” said Chief Chamberlin.
There are currently 29 salmon aquaculture sites authorized by the BC government to operate in the archipelago, and it is KAFN’s position that these operations have contributed to the drastic decline in the area. The archipelago has the densest concentration of farms, and16 of them are located directly on wild salmon migration routes. Rising concerns over the impact of salmon farms in the area came to a head in 2002, when the BC government lifted its 1995 moratorium on tenures for additional farms. That year, the Broughton Archipelago pink salmon stocks crashed with fewer than 5% of the returning. From an expected run of 3.6 million, only 147,000 spawning pinks returned. Analyses by the Department of Fisheries and Oceans (DFO) and the Pacific Resource Conservation Council (PFRCC) showed that the collapse of the Broughton pink salmon stock was not “natural.” That year, the PFRCC released an advisory to the federal and provincial fisheries ministers, urging the immediate removal of the Broughton Archipelago salmon farms to protect outward-bound juvenile pinks.
Fish biologists, academics, conservationists, and First Nations, believe that the pink salmon collapse stemmed from a massive kill of outward migrating juvenile pink salmon in 2001, and that kill was caused by sea lice originating in area salmon farms. A ten-week study conducted in the area in 2004 found that juvenile salmon near the farms were infected with a probable lethal limit of 1.6 lice per gram, while sea lice levels were near zero in all areas distant from the farms.
Although juvenile pinks are the most susceptible to sea lice, other area salmon are also at risk of infestation, especially outmigrating juveniles. The area is also home to chum, Coho and Chinook salmon. A 2003 study in the area found that 90% of juvenile pink and chum salmon were infected with lice levels considered lethal. More recently, two new sea lice studies (Oct. 2010) published online in the Journal of Applied Ecology suggest that sea lice from fish farms may be dramatically affecting the health of Coho salmon populations in the area. The first paper, co-sponsored by the Watershed Watch Salmon Society, indicated that sea lice transmitted from pink salmon prey to Coho predators increased infection on Coho by 2 to 3-fold in salmon farming areas. The second paper, which looked at Coho salmon returns from 1975 to 2007, found that infected Coho in the archipelago suffered a 7-fold decrease in productivity during a period of recurrent sea louse infestations associated with salmon farms, relative to unexposed Coho populations.
“With the rapid decline of Broughton wild salmon populations, speed is crucial to the KAFN,” said Chamberlin. “The KAFN is fully committed to having our First Nation aboriginal title and rights accommodated through ongoing interactions with the federal Department of Fisheries and Oceans… More roadblocks by government are not helpful. Their actions add nothing but months of delay and considerable costs.”