the Cohen Commission: The rights and privileges of fishing
Gunnair @ Thu Jun 30, 2011 10:29 pm
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Christie Blatchford Jun 30, 2011 – 7:54 PM ET | Last Updated: Jun 30, 2011 8:53 PM ET
Not to make a fish joke, but the jig is, er, up.
In cross-examination Thursday at the Cohen Commission examining the decline of the sockeye salmon in the Fraser River, a senior official with Fisheries and Oceans Canada, the federal department still known as DFO, admitted that he believes non-native Canadians don’t have a right to fish recreationally, but rather a privilege, and that he takes that attitude into negotiating rooms where he works with First Nations leaders.
“The public of Canada have rights?” Keith Lowes, lawyer for the B.C. Wildlife Federation and the B.C. Federation of Drift Fishers, asked Barry Huber.
Huber is an aboriginal adviser in the DFO in British Columbia who is now on special assignment to develop “co-management” arrangements with natives for the fragile fishery.
“Yes,” Huber replied.
“Including the right to fish recreationally?” Lowes said, adding conversationally that he believed Huber himself is a recreational fisherman.
“I have a privilege,” Huber said carefully.
Clearly taken aback, Lowes said, “You say public fishing is a privilege, not a right?”
“Yes,” said Huber.
Lowes then read aloud parts of a 1913 decision from the English House of Lords which re-affirmed that the public right to fish in the sea and tidal waters “had been established at an earlier date” than the Magna Carta and a 1996 Supreme Court of Canada decision which held that the elevation of aboriginal rights to constitutional status “was surely not intended that … common law rights would be extinguished.”
In other words, aboriginal rights exist within a larger context.
Huber demurred a little then about his lack of legal knowledge, but said, “I didn’t come here [to British Columbia, from Alberta] with a right.”
“So public fishing is a privilege?” Lowes pressed.
“I can’t say that [legally],” Huber replied, adding, “But that’s my view. I live in B.C., but I don’t believe I have a right. I can’t, as opposed to First Nations, say I have a right.”
“You take into the room with you that belief?” Lowes asked, “that the Canadian public has no rights of fishery?”
“We have a privilege,” Huber insisted.
The exchange, ordinary in the scheme of cross-examination but startling at this federal inquiry, where even witnesses testify co-operatively, was prompted by Lowes asking about something Huber said earlier this week.
On Tuesday, he said flatly that “First Nations have rights. Others don’t … I think a lot of Canadians don’t understand that.”
Lowes, reading from notes he made at the time, told Huber he found the remark startling.
Huber said the remark “was taken out of context,” noted that some people at the inquiry are quick to do that, admitted he should have been more careful and that he had been talking only about the native-only FSC (Food, Social and Ceremonial) fishery.
“I should have reflected it that way,” Huber said.
A little later, Lowes was at it again, asking if the DFO mandate wasn’t to “manage a public resource” on behalf of all Canadians? Huber agreed. “But your view is that the public is fishing by a privilege?”
“That’s the way I view it,” Huber said.
The lengthy back-and-forth appears to illustrate that the very fellow charged with negotiating new fishery deals with First Nations on behalf of all Canadians — on the “government-to-government” or “nation-to-nation” basis increasingly demanded by native leaders — is arguably prepared to give away the store because he doesn’t believe non-natives have a leg to stand on.
Indeed, in the first line of the first personal profile section of his curriculum vitae, filed with the commission, Huber wrote that he enjoys “working with and helping people, in particular, Aboriginal people.”
He is Ottawa’s voice on the four-member panel which was testifying this week. The other members are St’at’imx Grand Chief Saul Terry, Haida policy adviser Russ Jones and Neil Todd, a consultant to the Nicola Tribal Association and operations manager of the Fraser River Aboriginal Fisheries Secretariat.
Lowes’ was not the only spirited cross-examination Thursday.
Phil Eidsvik, a fisherman and non-lawyer who represents the B.C. Fisheries Survival Coalition, in his excruciatingly polite way, raised the delicate topics of DFO enforcement, or lack of it, against those who may take too many fish or fish out of season.
Wouldn’t that perhaps help officials “get a handle” on illegal sales? Eidsvik asked Jones, who replied that “I don’t think enforcement is a major issue.”
But, as ever at this proceeding, and perhaps as it must be when there is a quartet of witnesses in the witness box at one time, Grand Chief Terry put his hand up, a sign he wished to “comment.”
“In my determination,” he said indignantly, “the matter (enforcement) would be irrelevant, trying to charge the person.
“We do have the right to take the fish and what we do with it is to be determined by us,” he said, adding that “our people know what is right and what is wrong, and behave accordingly.”
And there you have it: First Nations are inherently better than others (the sort whose people know what is right but may do the wrong thing anyway) and the government man negotiating with them on behalf of the rest of us fully concurs with that.
Postmedia News
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Gunnair @ Thu Jun 30, 2011 10:30 pm
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Christie Blatchford: Common denominator at Cohen Commission is antipathy for DFO
At the Cohen Commission, where it appears that tiptoe is the preferred way of getting about, Ernie Crey is like a big old wind blowing in from the fresh sea.
“Everyone’s future is uncertain,” he said in his beautifully bold manner one day this week during a lunch break. “I wouldn’t f—ing show up if it was just our fishery. We’re all in the same boat.”
At 62, Mr. Crey is among the next “panel” of witnesses who will testify during the “Aboriginal Fishing” phase of the federal public inquiry, which is examining the decline of the sockeye salmon in the Fraser River, albeit in a most delicate manner.
Despite a record return of the mighty fish last year, the fishery is generally conceded to be in deep trouble.
For six of the past 10 years, for instance, there simply was no commercial fishery, and throughout that long period, as many as 15 million fish went “missing” between the counting station at Mission, B.C. and their spawning grounds.
While just about everyone involved in the fishery has a theory about why the fish disappeared — warm water or disease caught from farmed salmon; disappearing habitat; bad counting or a lethal combination of all of the above — no one really knows.
But the most controversial theory for the dwindling of salmon stocks has been aboriginal over-fishing — since 1992, natives have had a so-called FSC, or Food, Social and Ceremonial fishery and later, also a separate commercial one — playing a role in the crisis.
Certainly, some years, as non-native fishermen were forced to sit idly by, the only fishery which has occurred was an aboriginal-only one.
This divide led to racial tension, a series of so-called “protest fisheries” in the 1990s and even as recently as six years ago.
Mr. Crey, while a vigorous advocate of the special native-only fisheries, is not myopic.
“If the only fishery left is a small aboriginal fishery, we’ll have lost a lot. My fear is we might lose it all.”
Mr. Crey is fisheries advisor to the Stó:lo Tribal Council, the Stó:lo people running the main tribal fishery on the Lower Fraser River. He fishes in the so-called FSC, or Food, Social and Ceremonial fishery reserved for natives. He is adamant natives don’t over-fish and are good custodians of the resource. He’s also a former social worker who co-wrote a book about residential schools called Stolen from Our Embrace, which won the B.C. Book Prize for non-fiction.
Yet despite a personal story which mirrors many of the ills experienced by native Canadians — his father was scooped up and sent to residential school in Mission, B.C; a sister, Dawn, was one of the province’s missing women and is presumed to have died on the notorious Pickton pig farm since her DNA was discovered there — Mr. Crey is remarkably un-embittered, just as decades of exposure to government bureaucrats speaking their unintelligible language have not robbed him of the ability to talk plainly.
He has great affection for salmon fishermen and women, those people, native and non-native, who earn a hard living in search of the sockeye, lyrically described by the author Dennis Brown in his 2005 book Salmon Wars as that “magnificent, mysterious, poetic and awe-inspiring” species.
But he also knows that among aboriginals, among the Stó:lo for instance, sockeye provide the chief source of food and economic opportunity.
“These are small, isolated communities,” he said, “where there’s no employment, and people live on small pensions [often veterans’ pensions] or social welfare and rely on the fishery to feed themselves and their families.
“And if that fishery is gone, the family budget could not replace that protein,” Mr. Crey said, a reflection of the fact that such communities are often divided between an unusually large young aboriginal population and an usually large elderly one.
“There would be a deep cultural loss too,” he said, if the fishery were to disappear. Just as non-native communities throughout the province incorporate the salmon into their coats of arms, so are First Nations traditions rich with salmon references. “The dances, the songs, are all about fish,” he said.
He says the threat to some native communities at specific sites along the river “has passed the state of a threat; some local populations have so few fish they can’t have a fishery.”
Mr. Crey is a board member of the Salmon Table Society, a group of native and non-natives from all sectors of the fishery who got together to try to de-escalate racial tensions and omnipresent suspicion while, in Mr. Crey’s words, “securing one another’s future.
“Fishing groups don’t have confidence in one another’s numbers,” he said. “Non-natives are suspicious of natives; natives are suspicious of anglers and commercial fishermen.”
The common denominator — and perhaps the common enemy — is the great, unwieldy, moves-at-the-pace-of-molasses bureaucracy known as the DFO, long the subject of criticism across the board, from groups as diverse as the federal auditor-general to fishermen.
As Mr. Crey said, recalling one of the many times he went to government for help, “They didn’t do anything. They didn’t know what to do. They don’t know what to do.
“It’s up to us, as citizens, Indian and non-Indians.”
Postmedia News
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This is Not News-there has never been any right to fish recreationally in Canada.
Neither is there a right to fish commercially-this has been tested in the courts a number of times.
Natives won their right to fish for Food, Ceremonial and Social purposes (FCS) in court and sportfishermen can do the same-mount a constitutional challenge.
The BC Driftfishers claimed to be doing just that but they ran out of money enthusiasm or both since they no longer exist.
Unsound @ Sat Jul 02, 2011 10:10 am
Barilko Barilko:
This is Not News-there has never been any right to fish recreationally in Canada.
From the article;
"Lowes then read aloud parts of a 1913 decision from the English House of Lords which re-affirmed that the public right to fish in the sea and tidal waters “had been established at an earlier date” than the Magna Carta and a 1996 Supreme Court of Canada decision which held that the elevation of aboriginal rights to constitutional status “was surely not intended that … common law rights would be extinguished.”
andyt @ Sat Jul 02, 2011 10:34 am
I don't really get this about right to fish. Nobody except natives are allowed to fish without a license. Fishery can be reduced as needed for conservation, and that ultimately means even the native food/ceremonial fisheries.
What Blatchford is pointing out is that there is a huge, unregulated, native commercial fishery because there is not will for enforcement on the part of DFO and in fact their top guys see it as a native right.
We should be strictly enforcing the native food/ceremonial fishery to make sure it remains just that. But that's not done to prevent the natives from getting restless. If natives want to fish commercially they should have to apply for/buy licenses same as anybody else. In fact there are many native commercial fishers doing just that. If the Feds want to buy up commercial licenses from non-natives and give them to native bands as part of a land claims settlement, that would be a rational way to deal with this. But enforce the laws.
herbie @ Sat Jul 02, 2011 11:22 am
While were at it let's make it law that only Italians can make pizza or lay bricks.
How about ordering Newfoundland to import and repopulate a quota of natives and turn over their boats to them?
Unsound Unsound:
"Lowes then read aloud parts of a 1913 decision from the English House of Lords which re-affirmed that the public right to fish in the sea and tidal waters “had been established at an earlier date” than the Magna Carta and a 1996 Supreme Court of Canada decision which held that the elevation of aboriginal rights to constitutional status “was surely not intended that … common law rights would be extinguished.”
What happened in England a thousand years ago has no bearing on political reality in Canada in the 21st century nor did the 1996 Supreme Court decision make any law-
it referred to hypothetical common law rights that in fact do not exist.
Note that I speak as a sportfishermen of over a half century and someone who's been involved in conservation concerns
(particularly fisheries) all my adult life.
I have spent countless hours in meetings, written hundreds of letters
(and now emails) to politicians-worked booths @ sports shows educating the public, demonstrated in public you name it.
Again-
there is nothing in Canadian law that grants any right to fish for sport it's a recreational pastime little different from growing roses and working on old cars.
(How many times have I posted just those words in response to some chest/keyboard pounding dork on the net I don't know-a dozen at least.)I know my stance isn't popular but it's grounded in a lifetime of experience in the Canadian outdoors and a layman's grasp of how the law works.
I actually belonged to the BC Driftfishers around the time they formulated the plan to mount a challenge but left when I saw they didn't have a clue/wouldn't listen to those that did about how politics works here.
The simple truth is that most people couldn't care less about the natural world-go to Youtube and look @ how many thousands of people turned out to legalise marijuana rallies in Vancouver and how many hundreds were @ rallies to stop fish farms that are destroying Salmon runs if you don't believe me the answer is plain for all to see.
The opportunity might exist to change the law in favour of rights for sportfishing but requires a well directed well funded effort that could take decades to bring results and that will never happen because talk is cheap and that's all there is here.
herbie herbie:
While were at it let's make it law that only Italians can make pizza or lay bricks.How about ordering Newfoundland to import and repopulate a quota of natives and turn over their boats to them?
These comments add nothing to the debate and are in fact worth the paper they're written on.
herbie @ Sat Jul 02, 2011 7:24 pm
As does the claim that there is no law that grants the right to fish.
Rights are not granted by the gov't. They are taken by the people and sometimes recognized on paper like the Charter of Rights.
The 1913 ruling spells that out clearly and doesn't go away because it is old Common Law. You have the right to fish tidal waters. The gov't has assumed the right to make you pay a license fee but they can't refuse you a sport fishing license. We pretty much allow the gov't to set quotas and closures on species by right of common consent.
Writing race-based rights rulings into law without properly addressing the rights of the whole will only lead to distrust and contempt AND commentary such as I posted.
But believing or promoting the idea that because it is not written by gov't your rights do not exist is arbitrary, abhorrent and undemocratic.
The law regarding native fisheries recognizes their rights, but because it doesn't spell it out for the rest of us, does not nullify them.
Barilko Barilko:
Note that I speak as a sportfishermen of over a half century and someone who's been involved in conservation concerns (particularly fisheries) all my adult life.
Really? For someone who has been a 'sportfisherman' all that time, you have a weak grasp of your rights as that very sportfisherman. Any Canadian citizen has the right to fish in this country providing they carry a government-issued license. The goverment puts out countless guides and reference materials at their expense so anglers can be educated and enjoy fishing as much as possible.
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Again-there is nothing in Canadian law that grants any right to fish for sport it's a recreational pastime little different from growing roses and working on old cars.
So you just aren't going to recognize the existense of this:
"Lowes then read aloud parts of a 1913 decision from the English House of Lords which re-affirmed that the public right to fish in the sea and tidal waters “had been established at an earlier date” than the Magna Carta and a 1996 Supreme Court of Canada decision." Ignorance is bliss, eh?
$1:
The opportunity might exist to change the law in favour of rights for sportfishing but requires a well directed well funded effort that could take decades to bring results and that will never happen because talk is cheap and that's all there is here.
The only thing the law needs is to be extended to the aboriginals so that there is one law for ALL anglers, and that the free rides are over. I've seen examples of their 'angling'. They don't just stop at a few fish, knowing they get off scot free because of their aboriginal status. Enough is enough.
-J.
CDN_PATRIOT CDN_PATRIOT:
...For someone who has been a 'sportfisherman' all that time, you have a weak grasp of your rights as that very sportfisherman. Any Canadian citizen has the right to fish in this country providing they carry a government-issued license. The goverment puts out countless guides and reference materials at their expense so anglers can be educated and enjoy fishing as much as possible.
You're sadly mixed up-the license grants the
privilege to fish not the
right.Commercial fishermen have been defeated many times in lower courts trying to argue that their licences grant them a right to the resource-not only defeated but defeated so soundly that they have no grounds for appeal.
Get your licence out of your wallet and have a look-you do have a license don't you? Surely an enthusiast like you buys a license every year.
CDN_PATRIOT CDN_PATRIOT:
So you just aren't going to recognize the existense of this: "Lowes then read aloud parts of a 1913 decision from the English House of Lords which re-affirmed that the public right to fish in the sea and tidal waters “had been established at an earlier date” than the Magna Carta and a 1996 Supreme Court of Canada decision...
Again-what happened in foreign countries in the last century or even a thousand years ago has no bearing on Canadian law and the Canadian Supreme Court ruling had no effect since it referred to something that only existed hypothetically-I have posted this already.
CDN_PATRIOT CDN_PATRIOT:
The only thing the law needs is to be extended to the aboriginals so that there is one law for ALL anglers, and that the free rides are over. I've seen examples of their 'angling'. They don't just stop at a few fish, knowing they get off scot free because of their aboriginal status. Enough is enough.
Endless bitching about
'them danged Injuns' is what sunk the Sportfishing Defense Fund last time I was there and I know.That and chest pounding about rights guaranteed by the
Magna Charta (sic).
If you have something constructive to add then do so-tell us about the efforts you've made to organise local groups/to gather funds/plot strategy/hire lobbyists/lawyers and plot a multi-year strategy to change the law bring these hypothetical
rights into being.
It can be done-Sikhs were granted the right to wear turbans while serving in the RCMP for instance.
My feeling is that having generated a few endorphins you'll fade back into the woodwork just like every other wanker who pounds his keyboard for recreation.
Barilko Barilko:
Again-what happened in foreign countries in the last century or even a thousand years ago has no bearing on Canadian law and the Canadian Supreme Court ruling had no effect since it referred to something that only existed hypothetically-I have posted this already.
1913 was a thousand years ago? My mistake then, sir. My math is inferior to yours it seems.
$1:
Endless bitching about 'them danged Injuns' is what sunk the Sportfishing Defense Fund last time I was there and I know.That and chest pounding about rights guaranteed by the Magna Charta
They ARE the root cause of most of this. Or have you been sleeping through this whole thread?
$1:
If you have something constructive to add then do so-tell us about the efforts you've made to organise local groups/to gather funds/plot strategy/hire lobbyists/lawyers and plot a multi-year strategy to change the law bring these hypothetical rights into being.
I don't waste time on a system that fails the very people it was made for. You can spend all the money/hire all the lawyers/raise funds with bake sales/strategize your next tackle purchase over beer/live in a dream world all you want, it won't cange a damn thing in the eyes of the law/government unless we were aboriginal and whatnot.
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It can be done-Sikhs were granted the right to wear turbans while serving in the RCMP for instance.
Don't even get me started on that.
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My feeling is that having generated a few endorphins you'll fade back into the woodwork just like every other wanker who pounds his keyboard for recreation.
Wow. You've degenerated back to schoolyard mentality by calling me names and generalizing me. Did your mom ground you and withhold your dessert? Pity.
-J.
Barilko Barilko:
This is Not News-there has never been any right to fish recreationally in Canada.
Neither is there a right to fish commercially-this has been tested in the courts a number of times.
Natives won their right to fish for Food, Ceremonial and Social purposes (FCS) in court and sportfishermen can do the same-mount a constitutional challenge.
The BC Driftfishers claimed to be doing just that but they ran out of money enthusiasm or both since they no longer exist.
Read the article before making yourself look like an idiot. Unsound already pointed out where you are wrong.
$1:
“The public of Canada have rights?” Keith Lowes, lawyer for the B.C. Wildlife Federation and the B.C. Federation of Drift Fishers, asked Barry Huber.
Huber is an aboriginal adviser in the DFO in British Columbia who is now on special assignment to develop “co-management” arrangements with natives for the fragile fishery.
“Yes,” Huber replied.
- Very funny, I was laughing 5 minutes. There is no country on this planet that have them in full. It sounds like "a little pregnant". When every citizen will say yes I have right and I can do it, we will say, yes the human rights are here and they are in full. Nowadys human rights is just a fantasy for keeping sheeps in silent. In every moment government need, they can be smashed.
Ok, one quick question. Are fish considered a national resource in Canada?