Vancouver — Fishermen have been fighting in court for the past 12 fishing seasons over whether natives are entitled to their own time on West Coast rivers to catch sockeye salmon for commercial purposes.
A decision in B.C. Supreme Court this week that supports a native-only commercial fishery in three of the province's rivers did little to resolve the dispute.
Native fishermen armed with the court ruling were preparing yesterday to go fishing. Non-native fishermen, who have spent about $3-million on legal costs since 1992, were talking about taking the issue to the Supreme Court of Canada.
The federal government was scrambling to put together some rules within the next two weeks, before the highly prized salmon arrive in great numbers in the lower Fraser River.
Chief Ken Malloway of the B.C. Aboriginal Fisheries Commission says natives are anxious to sign an agreement with Ottawa as soon as possible to restart the native-only fisheries. (John Lehmann/The Globe and Mail)
Chief Ken Malloway of the B.C. Aboriginal Fisheries Commission said yesterday that the natives are anxious to sign an agreement with Ottawa as soon as possible to restart the native-only fisheries.
The federal program for native-only fisheries in B.C. was cancelled last year after Provincial Court Judge William Kitchen ruled the program was “government-sponsored racism.”
He dismissed criminal charges against non-native fishermen who dropped their nets during the native-only fishery.
However, Mr. Justice Donald Brenner of the B.C. Supreme Court ruled this week that the federal program was flawed but did not violate the Charter rights of non-natives to be treated equally. He delivered his decision verbally in court. Written reasons are expected to be filed later this summer.
“I hope [the federal Fisheries Department] will act as quickly to reinstate the program as they did in cancelling it,” Chief Malloway said in an interview.
The court decision should help quell the fear that “a modest opportunity for aboriginal people . . . is a threat to the B.C. commercial fishing fleet,” he said in a prepared statement.
“Our people are poor and they need opportunities like [commercial sales from native-only fisheries]. Under the program we got to make a bit of money to support ourselves and to train our young people . . .. This costly and unnecessary legal challenge by a handful of commercial fishermen has hurt us and set back our plans.”
Phil Eidsvik of the B.C. Fisheries Survival Coalition urged the federal government to take its time before reinstating the program, saying that everyone who has taken a close look concluded the program is “a mess.
“Even though it may be technically legal, [the federal government] might want to think about what they are doing before they go back to the same thing again.”
One of the problems was the lack of control over fish that are sold from a native-only fishery, he said. There is nothing to stop native fishermen from selling some of the salmon that they have caught at other times of the year — when they are allowed to fish for food or ceremonial purposes — with the commercial catch, he said.
The non-native group intends to appeal the decision, focusing on the discriminatory aspect of the program. “When I go to work in the morning — and the guy at the door says you cannot go to work this morning because you are not aboriginal — I don't see any Canadian not being deeply offended by that kind of program,” Mr. Eidsvik said.
The fisheries group will not advocate defiance of the law this summer if the native-only fishery is reinstituted, he said. But some people may protest outside government offices.
Don Radford, acting regional director of fisheries management for the Pacific region, said a decision on reinstating the program will likely be made later this year, after officials have reviewed the judge's written decision and consulted with various groups.
The federal Fisheries Minister, a native panel on fisheries and a joint task group advocated changes to the program over the past year, he said.
“We've received lots of advice and suggestions on how we could do better. We now need to look at the advice we have gotten.”
Before reaching a decision on whether to reintroduce the program, the department will have to decide what will happen this summer. Mr. Radford said the decision would reflect the strength of the salmon migration, concerns about conservation and the issues raised in the court ruling.
The natives have a constitutional right to catch salmon for food, ceremonial or social purposes. The federal program, started in 1992, set aside certain times, ranging from hours to days, exclusively for natives to catch fish for commercial purposes.
