Saturday, July 22, 2006

Stephen Harper And First Nations

Avant propos:

Many "Indians" resent the word. However, for historical reasons it is unavoidable in the Canadian context because "natives" or Aborginal include Inuit and Metis but the law treats them differently. I will not use quotation marks every time I use the word for better readability.

Stephen Harper Plays The Race Card

Most people would agree that a letter to the editor of a newspaper is not the proper way for a Prime Minister to announce major policy shifts. Furthermore, it is questionable behaviour not to accept the law as defined by Canadian courts. Stephen Harper did both in a letter published in the Calgary Herald on July 11, 2006 (the anniversary of the Surete du Quebec assault on the people in the Pines near Oka, an event seared in the memory of natives!). It doesn't matter at all that it was in response to a column by Mark Milke.

Mr. Harper wants to end native-only commercial fisheries. He wrote that " we will strike a judicial inquiry into the collapse of the Fraser River salmon fishery and oppose racially divided fisheries programs" even though the British Columbia Court of Appeals ruled that a native-only commercial fishery isn't race-based. That was less than a month before Harper's letter.

A senior official in Harper's office confirmed the plan even though Fisheries Minister Loyola Hearn's department is on the verge of striking agreements with a number of First Nations communities for the summer harvest.

Phil Fontaine reacted by saying: "These rights were not accorded to First Nations on the basis of race, but on citizenship in a First Nation," said Fontaine. "We cannot discard the long-standing legal rights of First Nations."

In any case, many scientists think that the concept pertaining to humans, lacks taxonomic rigour and validity. They argue that race definitions are imprecise, arbitrary, derived from custom, and that the races observed vary according to the culture examined. They further maintain that "race" as such is best understood as a social construct.

The Pernicious Effects Of The Indian Act

This is particularly true of Canadian Indians for historical reasons. Indian women lost their Indian status when they married a non-Indian before 1985. Non-Indian women got Indian status when they married a man having Indian status. If their male offspring married a non-native woman the same happened again. So whatever validity the concept of race may have it certainly doesn't make much sense with respect to Indians in this country. That is without even mentioning the arbitrary divison of status and non-status Indians the former having been determined for quite some time by being a descendant of a nation that signed a treaty with the Crown. (It's a complex situation and many first nations people got 'status' in more recent years even though their ancestors did not sign treaties.)

Canadians are a nation, not a race. The same holds true for First Nations. For example, the leader of the Mohawk Warrior Society for many years, Paul Delaronde, is not less Kanienkehaka (Mohawk) than anybody else in his community for having blond hair. So is Ronald Cross ("Lasagna"), regardless of his Italian mother, because the Haudenausonee (Iroquois) see him as one of them.

The Agenda Of The B.C. Fisheries Survival Coalition

It is obvious that Stephen Harper is just parroting the B.C. Fisheries Survival Coalition which has been at this game for 14 years. Their disregard for the law, when they engaged in an illegal fishery, ultimately led to the judgement of the BC Court of Appeals. Strange bed fellows for a Prime Minister whose government is otherwise trumpeting the need for respect of the law and to make its application more severe!

The B.C. Fisheries Survival Coalition is contemplating an appeal of the decision by the British Columbia Court of Appeals. That's not surprising because they've been at this for as long as there's been a native-only commercial salmon fishery. Their very name evokes the image of salmon fishers struggling for a living while in reality they make an incredible amount of money in a very short time in most seasons. The market price of licences is one indication.
Through licence buybacks and licensing policy reforms, Ottawa cut the fishing fleet in half in the 1990s. In 1988, [Dept of Fisheries] DFO estimated the capital investment in vessels and equipment for the salmon fleet was about $777 million (in 2003 dollars). By 2003, the capital investment in the entire fishing fleet for all species was estimated to be $286 million.

However, the decrease in the capital value of vessels and equipment was offset by the soaring capital value of licences and quota for most commercial fisheries. DFO policies that gave “windfall profits” to some fishermen and allowed for the consolidation and leasing of licences and quota, tax incentives and growing demand for allocations from First Nations and recreational fishermen, all contributed to an inflationary trend in licence and quota prices. Between 1994 and 2002, the prices of troll and gillnet salmon licences doubled while catches declined. ... By 2003, the capital value of licences and quotas reached $1.8 billion. Vessels and equipment now make up only 14 percent of the total capitalization in the B.C. fishing industry. In the past, the problem was too many fishermen chasing too few fish, but today it has become too much money chasing too few fish.

Many of these licenses were purchased to be transferred to First Nations communities. It appears the non-native fisher(wo)men didn't fare so badly. Others were sold to non-native fishermen who want to make the money to pay for them and this is partly the source of the frictions between the different groups in this fishery.

Native Fishing Rights And The Supreme Court

If he B.C. Fisheries Survival Coalition appeals the judgement to the Supreme Court it is the repetition of an old game for native communities: They have to spend an incredible amount of scarce resources to obtain what is legally their's through court judgements often at the highest level. The Supreme Court dealt with native fishing rights in several cases starting with the R. v. Sparrow in 1990. The dispute had its origin with charges against Musqueam fishers for violating net length regulations. The Supreme Court agreed with the Musqueam, who had argued they had an Aboriginal right to fish based on their long history of harvesting fish near the mouth of the Fraser River, albeit with some qualifications. This case dealt with the food fishery, a right Canada had tried to deny after it had accepted it for a long time. The Supreme Court did not indicate where an Aboriginal right to a commercial fishery might fit in. It dealt with that some years later in a number of cases.

The Court ruled on three cases in 1996 that became known as the Vander Peet trilogy. In each case, Canada had charged Aboriginal fishers who had caught fish for sale without a commercial fishing licence. The Aboriginal defendants argued that they had an Aboriginal right to a commercial fishery and that the restrictions infringed that right. In R. v. Vander Peet, the Supreme Court outlined the test that a First Nation must meet to establish an Aboriginal right to a commercial fishery. The Court held that commercial fishing must have been an integral part of Aboriginal culture before European contact. The Sto:lo Nation, whose traditional territory includes much of the Fraser Valley and for whom salmon were an integral part of their culture and economy, had not established an Aboriginal right to a commercial salmon fishery according to this case. In R. v. Gladstone, however, the Supreme Court held that the Heiltsuk Nation have an Aboriginal right to a commercial herring spawn-on-kelp fishery. But it also ruled that there are conditions when Canada might justifiably infringe an Aboriginal right to a commercial fishery including to allocate the fishery among other users. On the East Coast in R. v. Marshall, the Supreme Court interpreted an 18th century treaty between the Mi’kmaq signed with the British as guaranteeing the right to fish not only for food, but also to support a moderate livelihood.

Department Of Fisheries' Management Role

Greed and racism has permeated the BC salmon fishery from its earliest days after the Europeans arrived. Natives have been blamed for taking too many fish or endangering the species for almost as long as records exist.

The B.C. Fisheries Survival Coalition won't tell you that 95 percent of the returning salmon are taken by trolling, gill netters, seine fishing boats and recreational fisheries before the natives-only fishery even gets started. But the Prime Minister sees a problem with five percent of the fish, not all of which are taken by natives, posing a danger to the very survival of the species, according to his rhetoric. DOF (now called Dept. of Fisheries and Oceans) is partly responsible for the collapse of the cod fishery off Newfoundland; politicans share the responsibility by not accepting the warnings of scientists. Incidentally ever since the 200-mile Exclusive Fishing Zone was unilaterally declared in 1977 DOF also administered 95 percent of the fish. The "total allowable catch" (TAC) it authorised were substantially above sustainable levels. In that case the collapse was blamed on "foreign overfishing", who were allowed to catch five percent of the total, not on Canadian overfishing of the 95 per cent of stocks.

DOF is responsible for managing salmon stocks. Fisheries managers first allocate a portion of returning sockeye salmon to meet annual escapement goals (the number of fish returning to their home stream to spawn) and then the remaining fish are allocated to harvesting by First Nations, commercial and recreational fisheries. Reliable escapement data is a key requirement for effective management of sockeye salmon.

But the data often is anything but reliable. The pre-season forecast, which is used to fix escapement goals, is subject to many variables and there are wide ranges of estimates in varying degrees of probability. Then there is the "counting" of the actual fish returning at Mission and the final determination of how many fish are thought to have made it to their spawning grounds.. This is a complex process taking many variables into consideration and it is subject to a number of problems. Its "accuracy" (actually it is a range of estimates and "final" numbers after the season) is questionable at times.

It appears that the en route mortality, in particular, experiences wide variations. For instance, in 2000 and 2001, the en route mortality rate of true laterun sockeye was estimated at approximately 90%.

Echoes Of The Past

The Fraser Report of 1994 stated that it was impossible to pinpoint the exact cause for the disappearance of, supposedly, more than one million sockeye salmon from the Fraser River in 1994. (I wrote 'supposedly' because there was much debate at the time whether this number is an exaggeration.) However, illegal fishing by native and non-native fishermen due to a lack of monitoring by federal Fisheries Officers was identified as a major cause of the missing fish. Ottawa was severely criticized for cutting back enforcement staff and for not making sure existing staff had enough power to enforce regulations. Apparently the Fraser River sockeye fishery came within twelve hours of being destroyed and one has to wonder whether the standard TAC of eighty per cent of returning salmon is a wise one. Dave Schultz, salmon coordinator with the DFO said in 1993: “No matter how exact our science or excellent our management becomes, we are still dealing with creatures of the wild. Salmon are unpredictable and will remain that way.” Wouldn’t it be wiser to err on the side of caution? Of the 16.5 million sockeye that returned to the Fraser 13 million were killed in commercial, native and sports fisheries allowing barely enough through to seed the spawning beds. Can this be called conservation minded? In a news conference The Hon. John Fraser stated: “We lost the Atlantic cod, at least for many, many years, and most of the public believes that that is a national Canadian scandal. Most of the public here wonders whether we are on the verge of doing the same with the salmon.”

The BC Fishery Survival Coalition released a document on the Aboriginal Fisheries Strategy (AFS), which was in its third year, consisting of a collection of DFO memos and reports a day before publication of the Fraser Report. One such memo claimed that the AFS was “out of control”, another that the “general public believe that the fishery officers have no enforcement power or control” over AFS activities. Indeed, it seems to be a common belief that natives put the salmon fishery in jeopardy. The BC Fishery Survival Coalition has always opposed the commercialization of the native food fishery, notwithstanding the fact that their quota comes from the commercial licenses bought back by the federal government often at prices above market value. They called the AFS the “biggest crisis to hit the BC commercial fishing industry”.

Stolen Lands. Native Rights.

All of British Columbia with the exception of the 14 so-called Douglas Treaties, the Nisga'a Treaty of 2000 and the northeast corner of the province included in Treaty 8 is unceded native land. This is in violation of the Royal Proclamation of 1763. This Proclamation "reserved" lands west of the Appalachian height of land for the Indians as their Hunting Grounds and the Crown gave itself the exclusive right to negotiate cessions of Indian title.

Salmon made some first nations very prosperous in precontact times and they have always traded it. It also appears likely that Douglas expected Aboriginal peoples to continue their commercial fisheries. Even in the mid-19 th century the Hudson's Bay Co. relied on fish caught by Aboriginal peoples, primarily salmon, as a source of food for its labour force and as one of its principal export products from the western edge of North America. Douglas wrote that Aboriginal peoples should have the right to conduct their ‘fisheries as formerly.’ United States’ courts have interpreted contemporary treaties in what is now Washington State as dividing the commercial fisheries equally between the American Indian tribes and the non-Native fishing community.

After over a century of denying First Nations people had any legitimate claim to their homelands, the Provincial and Federal Governments declared they were ready to enter into negotiations with First Nations in 1993. First Nations in BC were given an additional boost by the 1997 Delgamuukw decision of the Supreme Court of Canada. This decision finally clarified the scope of Aboriginal title that First Nations people have over their traditional lands. Aboriginal title is a sui generis collective right in land and it is based in pre-existing systems of Aboriginal law, and can be proved, by showing use and occupancy of the land, among other things.

The commercial fisheries remain sites of continuing conflict, but there have been few developments in the case law since the Vander Peet trilogy. If anything, the conflict appears likely to escalate before a resolution is found. The resolution may come in the form of a court decision or through negotiated agreements and treaties.

Land Claims: Canada's Dark Shadow Of The Past

Of course negotiated agreements would be preferable to litigation. How else can one interpret Harper's letter to the editor but as an attempt to escalate the conflict? Or, at the very least, to cater to a narrow political constituency in preference to solving ancient wrongs. The AFS is an important tool for economic development in communities who - as everybody knows - are among the poorest in Canada. The Prime Minister wants to take this away. He should look at the shameful record Canada has in not resolving numerous outstanding legal claims native communities have against this country and concentrate government's efforts towards solutions not the creation of more problems. One of the most important questions in this context is: When will our government come as clean as possible with the injustices inflicted upon First Nations in the past? There are about 800 specific claims and an unknown number of comprehensive claims pending or in the making. The former are resolved at the rate of about 20 each year, with 55 new cases filed in the same time period.

Canada's Auditor General reported in 1998 about the state of comprehensive claims:

As of June 1998, there were 70 claims in various stages of negotiation and pre-negotiation discussion, or with accepted statements of intent to negotiate, including 52 in British Columbia and 18 outside B.C. There are 123 bands who have registered their intention to proceed under the British Columbia Treaty Commission process. ...Final settlements can take more than 20 years to reach.

The Royal Commission on Aboriginal Peoples concluded that the process is not working at all. Stephen Harper's letter is not a constructive step in the right direction and I'm willing to bet the Supreme Court will decide it that way eventually. That is after First Nations have spent more substantial sums for litigation, money that could be better used for housing, sanitation or economic development.