Details of court room convictions and a legal decision affecting the Lax Kw'alaams will shape the debate of the fishing season for 2008 and beyond, as the west coast fishery took on a larger than usual amount of exposure from the judicial system over the last 48 hours.
The burst of legal news began on Thursday with an announcement from DFO regarding recent convictions of five west coast fishermen, including a trio convicted in Prince Rupert court in January. The convictions were based on observations by DFO of the lack of brailing of fish on seine boats.
Brailing is a controversial edict from DFO that is considered time consuming and an unwanted hindrance to their livelihoods by some fishermen. With a short period of time to harvest their catch, many don’t feel that the brailing process is one that is needed, considered as another in a list of DFO moves that make their industry harder and harder to participate in year after year.
The DFO press release from Thursday described brailing as: a technique, which removes fish from the purse seine net by means of a large dip net, reduces the stress and crushing effect on fish. It was implemented into the seine fishery to improve the chances of survival forweaker salmon stocks, and its use has resulted in increased fishingopportunities for seines on the coast.
By trumpeting their convictions and the subsequent fines that went with them, (each fisherman convicted faced fines and penalties of close to 2,000 dollars) prior to the upcoming salmon season, DFO most likely was setting the table for more strident enforcement of their rules, in fact as a reminder of their dedication to the regulations, the press release gave prominent play to a violation reporting line to help in the process of enforcing the brailing procedures.
While that announcement for the west coast salmon industry was being digested another court decision was delivered on Thursday, and was reported on Friday, one that will have a larger impact on the North Coast and the people of Lax Kw'alaams.
In a sharply worded decision, Justice Deborah Satanove delivered a 176 page ruling that declared that the Lax Kw'alaams have no aboriginal or constitutional right to harvest fish commercially in the rivers and coastal waters of the northwest coast.
As the basis for a portion of her decision, she explained that the case presented by the Lax Kw'alaams first nation was a "simplistic" argument, unsupported by the historical record adding that on a factual basis alone, the [first nations] have not established the dishonourable conduct of which it accuses the Crown.
The prime argument for the Lax Kw’alaams was based on the ancient trade in eulachon grease which was presented as the timeline of development of a fishing and trading tradition on the North coast. A tradition that was infringed by the introduction of the fisheries act, which the Lax Kw'alaam felt was an unjustifiable interference of the Federal Government.
It was an argument which the Justice did not agree with in her ruling, stating that the case as presented by the Lax Kw’alaams did not provide the required proof to bring about a favourable ruling.
The justice had a number of concerns on the case presented as she explained: "In my opinion, it would be stretching the concept of an evolved aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease is equivalent to a modern right to fish commercially all species in their Claimed Territories."
Aware of the politically sensitive and emotional nature of decisions such as these, Justice added a number of comments to her decision, dealing with the issue as a basic matter of law.
"It must also be recognized that no matter how unusual the subject matter, or how politically sensitive some of these issues are, aboriginal cases are law suits and must be treated as such. That means the party who has the burden of proof on an issue must establish on the evidence that what they assert is more probable than not."
With her decision she framed the debate and decision in legal terms, which while providing for a legal setback for the Lax Kw’alaams, will no doubt spur on the political debate in short order.
It makes for another controversial issue for the West coast fishery, which already has more than enough things percolating on the stove. Issues which very well may make this summer one of the more contentious of fishing seasons in recent memory.
The Vancouver Sun featured a detailed look at the case and the decision of Justice Satanove, a ruling that will resonate on the North coast for the immediate future and beyond.
Judge rules against band's claim to commercial fishery
Lax Kw'alaams, who live north of Prince Rupert, argued old trade in eulachon grease translates to modern-day right to fish
Ian Mulgrew
Vancouver Sun
Friday, April 18, 2008
The Lax Kw'alaams Indians in the Prince Rupert area have no aboriginal or constitutional right to harvest fish commercially in the rivers and coastal waters of the northwest coast, the B.C. Supreme Court says in a sharply worded decision.
In a complex, 176-page ruling released Thursday, Justice Deborah Satanove concluded the first nation put forth a "simplistic" argument, unsupported by the historical record.
She called the band's recitation of facts during the year-long trial "notably one-sided" and oblivious to numerous documents that were at odds with its interpretation.
"Once again, on a factual basis alone, the [first nations] have not established the dishonourable conduct of which it accuses the Crown."
The Lax Kw'alaams, whose name means "place of small wild roses," number about 3,000 people, most of whom live on a reserve about 30 km north of Prince Rupert.
They are known colloquially as a "fishing people" and claim to have descended from nine Tsimshian tribes -- the "Coast Tsimshian" -- who, long before contact with any European, occupied territories and fishing sites on or near the rugged northwest coast.
But their claim that an "ancient trade in eulachon grease has transmogrified to a modern-day right to commercial fishing of salmon, halibut and all other marine and riverine species of fish, ignores the fundamental fact that the Coast Tsimshian fished for sustenance, not for trade," Justice Satanove said.
"The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not interrelated with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.
"In my opinion, it would be stretching the concept of an evolved aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease is equivalent to a modern right to fish commercially all species in their Claimed Territories."
During the trial, the natives claimed to have used the fruits of the seas and rivers for food, social, ceremonial and commercial purposes long before the white man arrived. The band maintained it would have continued to do so but for the unjustifiable interference of the government of Canada.
The natives insisted the right to fish commercially was a distinctive feature of their culture, and asked the court to declare it an aboriginal right that had been infringed by the Fisheries Act. They also claimed Ottawa breached its unique duty to them based on fiduciary principles and the honour of the Crown.
The federal government vehemently denied the claims and argued that, before the arrival of the Europeans, any trading in fish other than eulachon by the Coast Tsimshian was "low volume, personal, opportunistic, irregular, for food, social and ceremonial purposes and incidental to kinship relations, potlatches and ranked Coast Tsimshian society." It denied any infringements of the band's aboriginal rights.
Satanove considered a wide ambit of evidence -- from expert to lay witnesses, historical to modern documents, and primary to secondary to tertiary sources culled from the disciplines of archeology, anthropology, ethnography, sociology, economics and biology. In the end, she agreed with Ottawa.
"It must be recognized that aboriginal cases are unusual in that they find their genesis in a time before written historical records, continue through hundreds of years of recorded history, and rely on the views of scholars, authors and critics to collate and interpret [and sometimes speculate!] on what took place in a time that pre-existed the memory of any living being today," she noted.
"It must also be recognized that no matter how unusual the subject matter, or how politically sensitive some of these issues are, aboriginal cases are law suits and must be treated as such.
That means the party who has the burden of proof on an issue must establish on the evidence that what they assert is more probable than not."
The Lax Kw'alaams failed to do that, she ruled.
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