BP-341E
THE ABORIGINAL FISHERIES
AND
THE SPARROW DECISION
Prepared by Jane Allain
Law and Government Division
Jean-Denis Fréchette
Economics Division
October 1993
TABLE
OF CONTENTS
INTRODUCTION
THE SPARROW DECISION:
FISHERIES RECOGNIZED AS A CONSTITUTIONAL
RIGHT
REID,
VAN DER PEET, GLADSTONE, AND SMOKEHOUSE:
DECISIONS REJECTING
THE ARGUMENT FOR THE
EXISTENCE OF CONSTITUTIONAL
PROTECTION OF AN
ABORIGINAL RIGHT
TO FISH FOR COMMERCIAL PURPOSES
JONES:
DECISION RECOGNIZING THE EXISTENCE OF
AN ABORIGINAL
RIGHT TO FISH FOR COMMERCIAL PURPOSES
THE SITUATION:
FROM SPARROW TO THE AFS
A. The AFS
1. Background
2. Terms
and Conditions of Implementation of the AFS
B.
The 1992 Fishing Season: The Concerns of the Parties
1. Communications
2.
Surveillance and Enforcement
3. Pilot Projects
for the Commercial Sale of Fish
Caught for
Traditional Purposes
a.
Participation by Aboriginal Peoples in the Commercial Fishery
b. The
Difficulty of Recognizing a Constitutional Right
4. The Right
to Manage and the 1992 Fishing Effort
THE 1993 SEASON:
PHASE II OF THE AFS
CONCLUSION
SELECTED BIBLIOGRAPHY
THE ABORIGINAL
FISHERIES AND
THE SPARROW DECISION
INTRODUCTION
The biological clock for
the fish is ticking much faster than the federal bureaucracy's clock
ticks.(1)
The economic value of the
commercial salmon fishery in British Columbia is estimated at $1 billion
annually. If we add to this figure the value of the sport fishery and
the traditional aboriginal fishery, we can only conclude that the socio-economic
importance of this industry is considerable. We can also readily understand
that managing such a multifaceted industry is very complex, and that the
various interests of the parties concerned are hard to reconcile.
Management of the west coast
salmon fishery is affected both by the cycles of the resource itself,
and, particularly, by the claims of the three main parties concerned:
commercial fishing groups, sport fishing groups, and aboriginal people.
All the parties agree that
the 1992 Fraser River salmon fishing season was extremely chaotic; it
has even been called an environmental disaster. That season marked the
introduction of a new federal government initiative, the Aboriginal Fisheries
Strategy (AFS). This was enough for some observers to jump to the conclusion
that there was a link between that year's problems and the introduction
of the federal program. Whether or not that conclusion is valid, the debate
over the 1992 Fraser River salmon fishing season clearly reached hitherto
unequalled levels of emotion and frustration; nor is the issue yet resolved.
In fact, the AFS gives rise
to an issue that is much broader than a mere debate over the west coast
salmon fishery. It is obviously much more complex, having to do with the
constitutional right not only to use the fisheries but also to occupy
territories. It is further complicated by the fact that some AFS objectives
flow from the 1990 Supreme Court of Canada decision in Sparrow.
The 1992 situation on the
Fraser has already been analyzed in depth in a report by Peter H. Pearse
and Peter A. Larkin, who, in September 1992, were commissioned by the
Honourable John C. Crosbie, Minister of Fisheries and Oceans, to conduct
an investigation into the events of the summer of 1992, particularly the
so-called disappearance of some 500,000 salmon. The Pearse-Larkin report,
Managing Salmon in the Fraser, published in December 1992, was
well received; in it, the authors analyze in depth the scientific, social
and political aspects of the issue, and make recommendations for improved
management of the resource in order to ensure that it will continue to
exist.
There is no point in reiterating
the Pearse-Larkin analysis; and it is difficult to criticize a Supreme
Court decision. The issue itself, while complex, has taken a very predictable
form as it pits those favouring greater aboriginal autonomy in fisheries
management against those opposing such autonomy. To understand this complicated
issue clearly, and perhaps to advance it somewhat, it is useful to outline
the opposing positions and follow the progress of the Supreme Court decision,
from the time it was handed down to its implementation as a government
program.
In this paper, analysis
of this issue will be based on the technical aspects of the Sparrow
decision, the terms and conditions of implementation of the AFS, and some
of the information collected by the Standing Committee of the House of
Commons on Forestry and Fisheries during its three days of public hearings
in Vancouver from 25 to 27 January 1993. These meetings allowed the Committee
to exchange views with numerous witnesses (over 40 organizations and individuals)
and some of the Committee's observations deserve comment. Our work, which
is based mainly on messages from those with first-hand experience of the
1992 Fraser River salmon fishing season, aims to inform and to provoke
thought. We are hopeful that the information and subsequent reflection
will go towards preventing any recurrence of the events on the Fraser
in 1992, either there or elsewhere.
THE SPARROW DECISION:
FISHERIES RECOGNIZED AS A CONSTITUTIONAL RIGHT
In Sparrow,(2) the Supreme Court of Canada considered for the first time
the scope of section 35(1) of the Constitution Act, 1982, which
recognizes and affirms the ancestral and treaty rights of the aboriginal
people of Canada. The constitutional text does not specify the nature
or content of the rights that are protected, however, nor does it anticipate
the effect of recognizing and confirming these rights; in fact, some authors
have even wondered whether the purpose of the wording was to limit the
type of remedy available to those whose rights are infringed upon.(3)
Although the Supreme Court endeavoured to address the many issues involved,
it only raised others, which are still contentious.(4)
The incident that sparked
the trial is easily summarized. Ronald Edward Sparrow, a member of B.C.'s
Musqueam band, was charged with fishing with a net longer than that permitted
by his subsistence fishing licence, in contravention of the Fisheries
Act. Sparrow did not dispute the facts; on the contrary, he argued
in his defence that he was exercising an existing aboriginal fishing right;
that is, a constitutional right protected under section 35(1) of the supreme
law of the country. At his trial, Sparrow was convicted. The trial-level
judge held that an aboriginal right could not be claimed unless that right
had been ratified by a treaty or other official document. The County Court
upheld that decision.
In hearing the case, the
B.C. Court of Appeal upheld the argument that Sparrow was exercising an
aboriginal fishing right, that is, a right that his ancestors had held
from time immemorial. This Court recognized that Parliament had legislative
authority to regulate the fisheries in order to ensure conservation and
sound management of the resource. While accepting that the aboriginal
people's right to fish could be regulated, the Court emphasized that any
regulation imposed must be reasonable. It also noted that section 35 of
the Constitution Act, 1982, stated that aboriginal people's right
to fish for subsistence purposes should from then on have priority over
the interests of other fishing groups. Since Sparrow's conviction had
been based on an error in law, it was quashed by the B.C. Court of Appeal.
The Supreme Court of Canada
adopted a similar approach without, however, fully exonerating the accused.
It accepted the fact that Sparrow had an existing aboriginal right, but
noted that certain constitutional issues should be referred back to the
court of first instance, and established criteria that the trial-level
judge should take into account. The Supreme Court also seems to indicate
that the government, referring to this decision, should open negotiations
with the aboriginal people.
A number of general principles
arise from the Supreme Court decision. First, the Court established that
section 35 of the Constitution Act, 1982 applies only to rights
that existed at the time this provision came into force. In other words,
the term "existing" means "unextinguished in 1982."
However, the Supreme Court specified that the way in which the right was
regulated until that time does not dictate the extent of the right. It
stated that, on the contrary, the term "existing aboriginal rights"
must be interpreted flexibly in order to allow these rights to evolve
over time, and it categorically rejected the "frozen rights"
argument. Later in its reasoning, the Supreme Court emphasized that section
35 must be given a generous, liberal interpretation in light of its objectives.
As we have already noted,
the Supreme Court concluded that members of the Musqueam band had an aboriginal
right to fish, particularly for food, social and ceremonial purposes.
It also concluded that the Crown had been unable to demonstrate that this
right had been extinguished by the Regulations concerned; a regulation
does not amount to extinguishment. In order to extinguish an aboriginal
right, the Crown must demonstrate clear and plain intent to do so, a test
that is stricter than the test put forward by the Crown. The Supreme Court
also noted that neither the Fisheries Act nor its accompanying
Regulations demonstrate the required intent to extinguish a constitutional
right. In the opinion of the Supreme Court, the fact that the Department
of Fisheries and Oceans (DFO) issued licences to individuals at its own
discretion indicated no more than an intent to manage the fisheries, rather
than an attempt to define aboriginal fishing rights.
Section 35 is not part of
the Canadian Charter of Rights and Freedoms; it is fully a part
of the Constitution, under the heading "Rights of the Aboriginal
Peoples of Canada." Readers are reminded that the Charter includes
"limiting" clauses: section 1 confirms that the rights set out
are guaranteed, but notes that they may be subject to reasonable limits
prescribed by law; section 32 specifies that only the federal and provincial
governments are bound by the Charter; and section 33 allows legislatures
to opt out of certain rights, notwithstanding their being enshrined in
the Charter. As a result, some observers have argued that aboriginal rights
are absolute, since they were not explicitly subject either to a justification
test such as the one in section 1 of the Charter or to section 33, the
notwithstanding clause.(5) This argument
was made -- unsuccessfully -- before the Supreme Court. Although the Supreme
Court indicated that section 35 was not subject to sections 1 or 33 of
the Charter, it recognized that the government could enact legislation
or make regulations limiting aboriginal people's fishing rights if this
infringement could be justified. In the opinion of the Supreme Court,
such an analysis must be made in steps: it must be determined, first,
whether a right has been infringed, and, then, whether the infringement
is justified.
The Supreme Court ruled
that, when the legislative measure concerned limits the exercise of an
existing aboriginal right, there is, prima facie, infringement
of section 35 of the Constitution Act, 1982. In order to determine
whether there is indeed infringement, the Supreme Court established the
following list of questions.
1) Is the limitation unreasonable?
2) Does the regulation
impose undue hardship?
3) Does the regulation
deny the aboriginal people their preferred means of exercising their
right?
Once it is determined that
infringement of an aboriginal right did occur, the next step is to determine
whether the infringement was justified. Although the Supreme Court stated
that aboriginal rights are not subject to the justification test in section
1 of the Charter, this Court did subject these rights to an identical
analysis, a fact that has been criticized by some authors.(6) The justification test established by the Supreme Court
requires, first of all, a valid legislative objective. A suggested example
of such an objective is a regulation made in order to ensure the management
and conservation of a natural resource. Secondly, the justification test
requires consideration of the federal government's fiduciary duty toward
aboriginal people. This second requirement is an essential factor in resource
allocation. The Supreme Court indicated the need for guidelines to solve
resource allocation problems that would certainly arise in future. The
Court also noted that, in Sparrow, subsistence fishing by aboriginal
people should be given priority, after conservation requirements.
The Supreme Court refused
to draw up an exhaustive list of factors in the justification test, but
noted several points that a court could consider, including the following:
- whether there has been as little infringement
as possible;
- if there has been expropriation, whether
fair compensation has been made to the aboriginal people;
- whether the aboriginal group concerned
has been consulted about the conservation measures imposed.
In summary, the Sparrow
doctrine consists of three main issues:
1) Is there an aboriginal
or treaty fishing right?
2) If so, does the regulation
or legislation concerned infringe on this right?
3) If there is infringement
of the right, is the infringement justified?
The Supreme Court noted
that the aboriginal people had the burden of proving the existence of,
and infringement on, the aboriginal right. The Crown, on the other hand,
had the burden of proving justification, that is, demonstrating that DFO's
legislative objective of adopting limiting measures was both valid and
justifiable. The Supreme Court suggested that, in light of the government's
fiduciary duty toward aboriginal people, it must limit the exercise of
its legislative authority. This Court also specified that the final decision
would depend entirely on the findings of fact in a specific case, and
that a case-by-case approach should be adopted.
It should be noted that,
in Sparrow, the Supreme Court refused to consider the existence
of an aboriginal right to fish for commercial purposes, an issue which,
it stated, had not been debated before the lower courts. Some authors
have developed their own theories about why the Supreme Court hesitated
to take up this thorny question.(7) Whatever
the reasons for its refusal, at this stage in the development of the jurisprudence,
the Supreme Court limited itself to analyzing aboriginal people's constitutional
right to fish for food, social and ceremonial purposes.
This situation does not
mean that the Supreme Court has ruled out the possibility of the aboriginal
people's eventually claiming a commercial fishing right; on the contrary,
it suggested that such a claim would be a contentious issue in future.
The Chief Justice emphasized the following point.
It was contended before
this Court that the aboriginal right extends to commercial fishing.
While no commercial fishery existed prior to the arrival of European
settlers, it is contended that the Musqueam practice of bartering in
early society may be revived as a modern right to fish for commercial
purposes. The presence of numerous interveners representing commercial
fishing interests, and the suggestion on the facts that the net length
restriction is at least in part related to the probable commercial use
of fish caught under the Musqueam food fishing licence, indicate the
possibility of conflict between aboriginal fishing and the competitive
commercial fishery with respect to economically valuable fish such as
salmon. We recognize the existence of this conflict and the probability
of its intensification as fish availability drops, demand rises and
tensions increase.(8)
Since evidence of the existence
of an aboriginal or a treaty right is closely linked to the facts at issue,
it is not surprising that the lower courts reached diverging conclusions
about the existence of an aboriginal right to fish for commercial purposes.
The courts hearing such cases must consider the past and present backgrounds
against which the aboriginal people concerned have evolved and continue
to evolve, and must examine in depth the relevant treaties, legislation
and regulations. It is quite likely that only a further interpretation
by the Supreme Court of Canada will put an end to the debate.
Since Sparrow, several
lower courts have attempted to delineate the extent of the aboriginal
fishing right. Some judges concluded that this aboriginal right included
commercial fishing, while others clearly rejected this argument. Below
we analyze five recent decisions in this regard: in Reid, Van
Der Peet, Gladstone, and Smokehouse, the judges rejected
the argument for the existence of constitutional protection of the right
to fish for commercial purposes; in Jones, the judge accepted this
argument.
REID,
VAN DER PEET, GLADSTONE, AND SMOKEHOUSE:
DECISIONS REJECTING
THE ARGUMENT FOR THE
EXISTENCE OF CONSTITUTIONAL
PROTECTION OF AN
ABORIGINAL RIGHT TO
FISH FOR COMMERCIAL PURPOSES
In Reid,(9) Mr. Justice Collier of the Federal Court of Canada denied
a request by the Heiltsuk band that the Minister of Fisheries and Oceans
issue it a commercial licence to fish for herring in a region near Bella
Bella, British Columbia. It should be noted that the decision is quite
brief: Judge Collier stated that he was unable to analyze the issue in
greater depth because of lack of time, and for health reasons. He concluded
that herring was a traditional source of food for the Heiltsuk, and recognized
that in the past the Heiltsuk exchanged herring for other goods, especially
food. He emphasized, however, that simply trading food was not the equivalent
of trading commercially. In his opinion, the Heiltsuk were unable to demonstrate
that they had an aboriginal right to fish for herring for commercial purposes.
In late June 1993, the B.C.
Court of Appeal made eight decisions, compiled in two voluminous documents,
that constitute a review of the extent of rights protected by section
35 of the Constitution Act, 1982. The aboriginal people concerned
claimed various remedies, including formal recognition of their right
to self-determination, right of ownership of and jurisdiction over the
territories, and fishing and hunting rights. Three of these decisions
-- Van Der Peet, Gladstone and Smokehouse -- specifically
address the issue of whether the aboriginal fishing right includes the
right to sell the fish for commercial purposes.(10) In each case, a majority of justices
rejected the argument put forward by the aboriginal people. In each case,
however, there was at least one dissenting voice.
In these three cases, the
reasoning of the majority is essentially the same. The most detailed decision
is certainly Van Der Peet. In this case, Judge Macfarlane considered
that a custom does not become an aboriginal right unless it was and still
is an integral part of aboriginal distinct culture. In order to claim
a right now, an aboriginal people need not prove that it has exercised
the right since time immemorial, but only for a very long time. Judge
Macfarlane also indicated that a modernized form of an ancient custom
would be protected. However, he emphasized that a custom that was not
formerly an integral part of an aboriginal people's culture, but that
has developed as a result of contact with Europeans, does not constitute
a constitutionally protected aboriginal right.
Judge Macfarlane recognized
that fishing has been an integral part of the aboriginal people's distinct
culture, with even religious importance. He concluded, however, that conservation
is also a part of aboriginal traditions and prevents aboriginal people
from overusing the fisheries. Noting that when there was a surplus in
the past, the resource was shared in order to meet everyone's needs, Judge
Macfarlane said that this historical fact is not the equivalent of commercial
use. As a result, in his opinion, the sale of fish to Europeans cannot
be construed as the natural development of an aboriginal right. He indicates
that, on the contrary, the very nature of this activity changed greatly
after the arrival of Europeans and that, therefore, commercialization
of the fisheries is not an aboriginal custom. He specified that aboriginal
people can now participate in the commercial fishery, but are then subject
to the same regulations as other fishing groups.
Mr. Justice Lambert wrote
a dissenting opinion in Van Der Peet, Gladstone, and Smokehouse.
In Lambert's opinion, aboriginal rights are constantly evolving and were
not frozen at the time just preceding European contact. Lambert described
the exchange of fish for other food as the forerunner of commercial trade
introduced by Europeans. In Lambert's opinion, therefore, an aboriginal
right to participate in the commercial fishery exists and has been incorporated
into the common law, but regulations banning the sale of fish caught under
a subsistence fishing licence do not constitute unreasonable interference
with the exercise of this aboriginal right. Lambert indicated that aboriginal
people who wish to participate directly in the fisheries have a right
to earn a modest living by doing so. Specifically concerning the Fraser,
he noted the importance of negotiation and consultation with all users
in order to determine resource allocation. Lambert's words in this regard
deserve to be quoted:
The needs of conservation
in the Fraser River fishery are very difficult to assess and to administer.
There are many Indian bands with aboriginal fishing rights over sections
of the river and over the estuary of the river and perhaps over the
returning fish. There are the needs of the commercial fishery which,
subject to the true moderate livelihood needs of the aboriginal people
on the river, must be protected through conservation of the whole Fraser
River fishery. A complex process of negotiation, concession, sharing,
administration and enforcement is required. In my opinion the administration
of the fishery on the River must in the end be controlled by one single
authority. That single authority would follow full procedures for consultation
with all those interests affected by its decisions.
I understand that steps
have now been taken to consult with the aboriginal peoples who have
fishing rights in the Fraser River system and to put in place an allocation
system which reflects those rights and the rights of others. Perhaps
further steps will be required.(11)
Obviously, only the dissenting
voice in the B.C. Court of Appeal cases favours the kind of negotiations
that led the Department to develop the AFS.
JONES:
DECISION RECOGNIZING THE EXISTENCE OF
AN ABORIGINAL RIGHT
TO FISH FOR COMMERCIAL
PURPOSES
A decision by Judge Fairgrieve
of the Court of Ontario (Provincial Division) grants constitutional protection
to the right of aboriginal people right to participate in the commercial
fishery. Two Ojibway from the Cape Croker reserve had been charged with
catching more lake trout than permitted by their licence; the band held
a commercial fishing licence. The aboriginal people argued that the limitations
imposed by DFO were an unjustified infringement on the exercise of their
aboriginal or treaty rights to fish for commercial purposes. Judge Fairgrieve
agreed with them.
In Jones, Judge Fairgrieve
first considered the extent of the Sparrow decision. He recognized
that the Supreme Court of Canada had not addressed the issue of commercial
use of the fisheries by aboriginal peoples, but noted that it had established
principles that could be used as guidelines in analyzing the issues raised
in this case. One principle established by the Supreme Court and adopted
by Judge Fairgrieve was the method to be followed in interpreting section
35 of the Constitution Act, 1982. This principle can be summarized
as follows: the rights protected by section 35 must be given a generous,
liberal interpretation by the courts, and the courts must ensure that
any ambiguity is resolved in favour of the aboriginal peoples.
In light of the constitutional
principles established by the Supreme Court, Judge Fairgrieve raised the
following three issues.
1) Is there an aboriginal
or treaty fishing right to fish for commercial purposes?
2) If so, do the established
lake trout quotas infringe on this right?
3) If there is infringement
of the right, is the infringement justified?
Where the first issue is
concerned, the Crown conceded that the accused had a collective aboriginal
right to fish for commercial purposes. It was also recognized that the
Saugeen Ojibway had a similar right under an 1836 treaty, further confirmed
by an 1847 imperial proclamation; the treaty right guaranteed the aboriginal
people free access to their traditional territorial waters. Judge Fairgrieve
nevertheless specified that the collective Ojibway right was not exclusive.
Essentially, in his opinion, this aboriginal right consists of the right
to use the resource for subsistence, not for purely profit-motivated commercial
purposes. However, he emphasized that the band's collective right to meet
its needs through fishing had always formed an integral part of its economy.
Judge Fairgrieve's answer
to the second question was affirmative. In his opinion, establishing a
lake trout quota for the Ojibway constitutes infringement on the exercise
of their right to fish. Because of this limitation, the band had experienced
financial difficulties: the rate of unemployment and the degree of poverty
had increased for both individuals and the community.
In response to the last
question, Judge Fairgrieve agreed that the objective of establishing quotas
was justified: it was an attempt by DFO to preserve stock through conservation
and sound management of the resource. He emphasized, however, that constitutional
protection of Ojibway aboriginal and treaty rights to fish for commercial
purposes means that, in resource allocation, the Ojibway must be granted
priority over all other user groups, once conservation measures have been
implemented. In Judge Fairgrieve's opinion, sport fishing groups and non-aboriginal
commercial fishing groups had even received favourable treatment. He therefore
invalidated the Regulation at issue. In conclusion, he specified that
DFO should in future seek the participation of the Ojibway in developing
a fisheries resource allocation plan that gives first priority to aboriginal
fishing groups.
THE SITUATION: FROM
SPARROW TO THE AFS
A. The AFS
1. Background
The issue of aboriginal
fisheries management is not new; it is well documented on both the west
and east coast. Aggravated by other Canadian constitutional debates, however,
it has become ever more important in the past few years.
For over 20 years, DFO has
followed a policy of giving priority to aboriginal peoples where subsistence
fishing is concerned. The aboriginal fishery has priority over the commercial
fishery and the sport fishery, but not over resource conservation, an
area in which DFO retains exclusive control, under the Fisheries Act.
Sparrow had the effect
of forcing DFO to act with respect to the aboriginal fisheries. A particularly
significant sentence from the Pearse-Larkin report clearly describes how
this decision radically altered DFO's managerial role: "The Sparrow
decision forced the government to respond to a partly-defined and evolving
aboriginal right to fish, protected by the Constitution, without prejudicing
the ultimate resolution of the issue through comprehensive claims settlements."(12)
We cannot better describe the complexity of the situation and the limited
room to manoeuvre available to the managers responsible for fisheries
policies.
Against this background,
the Department developed the AFS, which it considers the federal government's
response to the need to expand aboriginal peoples role in the fisheries
while at the same time conserving fish stocks and maintaining a stable
environment, predictable resource-sharing and profitable fisheries for
all parties concerned.(13)
The legal opinion drawn
up by Justice Canada for DFO following Sparrow is still a confidential
document, to which even the Standing Committee of the House of Commons
has been denied access; we can nonetheless speculate that the foregoing
issue, as worded by DFO, accurately reflects the spirit of the opinion
given by Justice Canada. This wording refers to profitability, which can
be achieved only through the sale of fish. As we shall see, the sale of
fish is still at the heart of the debate over the AFS.
The government's purpose
in adopting the AFS was not just to develop a simple fisheries program
but, in fact, to establish a social contract among the government, aboriginal
peoples and non-aboriginal fishing groups.(14) However, this social contract has acted
more to form a rift between the parties concerned than to bring them closer
together.
2. Terms and
Conditions of Implementation of the AFS
When it was introduced in
June 1992, the AFS was given a budget of $140 million over a seven-year
period; 70% of that amount is earmarked for British Columbia. From 1992
to 1997, approximately $73.5 million will be allocated to fisheries-based
economic development and to the training and participation of aboriginal
people in fisheries management activities. Other government programs,
including Employment and Immigration Canada's Affirmative Action Program
for aboriginal people, "The Roads to Success," will also be
used to meet some AFS objectives.
Buying back commercial fishing
licences, particularly west coast salmon licences, in order to allocate
some of the resource to aboriginal groups, will account for $7 million.
All parties consider this amount quite inadequate; we analyze this component
of the AFS below.
Approximately $4 million
has been allocated for research; agreement negotiations, including funding
for aboriginal groups and third parties, will cost $11.5 million. The
Lower Fraser Fishing Authority (LFFA) has become the umbrella organization
responsible for supervising the agreements reached between DFO and the
Tsawwassen, Musqueam and Stolo aboriginal communities. These agreements
provide, among other things, that the bands will carry out certain administrative
duties such as the issuance of licences, monitoring of catches and surveillance
of the fishery. In this regard, the LFFA received $1.1 million for
programs for fisheries guardians and catch-monitoring officers and other
administrative expenditures.
The AFS also provides for
a $20-million transfer from the DFO budget to aboriginal groups who will
be responsible for some fisheries management services now provided by
the Department, such as the operation of existing facilities and small
craft harbours.
Lastly, the AFS called for
pilot projects for the commercial sale of fish in 1992. It should be noted
that some aboriginal groups in British Columbia have long claimed the
right to sell their fish legally (see the section on Sparrow above).
The pilot projects were therefore designed to evaluate the opportunities
for the bands that this new economic activity could create. These pilot
projects were carried out on the lower Fraser, a region difficult to manage
because the ban on the sale of fish has often been challenged there, even
in court. It is also well known in this region that aboriginal peoples
openly fish on a large scale and quite well-structured networks exist
for the illicit sale of fish.
The agreements on the pilot
projects for the commercial sale of fish initially covered only 1992,
and were subject to review on expiry; however, as we shall see, the pilot
projects have not had the desired results.
B.
The 1992 Fishing Season: The Concerns of the Parties
In 1992, $14.7 million was
spent in British Columbia under the AFS. Nearly 75% of the aboriginal
people in that province, who traditionally depend on the salmon fishery,
reached agreements on resource management development projects.
In 1992, over 80 agreements
were reached in 1992 with various aboriginal groups in the province. In
the Fraser system, the value of the agreements totalled $3.6 million,
which benefited some 26 signatory bands. In the north of the province,
agreements with a total value of $5.9 million were reached by seven groups,
while 24 groups on Vancouver Island and in central B.C. reached agreements
valued at $4.4 million. These amounts, which are appreciable, nonetheless
do not affect all the parties, which explains in part why these groups
have considerable concerns.
1. Communications
If the most frequent criticism
made by the parties concerned had to be singled out, it would certainly
be communication. A great many members of commercial fishing groups stated
that the AFS had created a great deal of dissatisfaction and resentment
because the consultation and implementation process was poorly developed
from the outset. In this regard, a comment by the representative of the
Fishing Vessels Owners' Association is very representative:
The Minister of Fisheries
has stated the principles that ought to make processes like this work.
He has stated that what he intended to do was to have a transparent
ministry, full consultation with all affected user groups, and solutions
that would maintain stable and profitable commercial fisheries. Of course,
none of those things has happened. If we had a department that did not
have hidden agendas, and if the process of consultation was a meaningful
one, then I think we could find some solution. But behind-the-door deals,
done by bureaucrats without a direct interest in the results of these
things, is not the way to go. The kind of people who have to be at the
table are fishermen.(15)
Non-aboriginal commercial
fishing groups have the very strong impression that they have been left
out in the cold; they accuse DFO of favouring the entry of a third party,
the aboriginal peoples, into the commercial fisheries. In the opinion
of these commercial fishing groups, the fact that they had little to do
with the negotiations, and the incomplete and sometimes even biased information
they received, are irrefutable evidence that the aboriginal peoples have
been given special access to the resource. They therefore consider that
the AFS disrupts a balanced management of salmon stocks, and that they
-- who claim always to have respected and promoted this balance -- are
prevented from contributing to the new orientations adopted.
A list of the consultation
and negotiation meetings held when the AFS was being developed, however,
clearly demonstrates that many discussions took place; furthermore, this
list indicates considerable participation by the DFO Regional Office,
contrary to popular belief on the west coast that it was excluded from
the process of developing the AFS.
In the opinion of the commercial
fishing groups and the industry, the communication gap between them and
DFO headquarters is just as wide as the one between them and the Regional
Office. Their comments are extremely harsh, particularly with respect
to senior officials in Ottawa, whom they accuse of being completely ignorant
of reality, having pre-empted the Regional Office, and thus having developed
a strategy behind closed doors that responds to none of the industry's
concerns.
Their deep-rooted resentment
of the Deputy Minister of Fisheries has come to the point where it will
be nearly impossible to find a compromise as long as some of those involved
continue to be on the scene. Even if DFO negotiations became completely
transparent, it would be surprising if the fishing groups' resentment
were to disappear. In this regard, the comments by the representative
of the Fisheries Council of B.C. are eloquent:
[...] with the current
interlocutors for the Government of Canada there is no meaningful dialogue
possible . . . I am asking for the Government of Canada to represent
my rights as a citizen of this country and to deal fairly and straightforwardly
with this issue and be receptive to ideas that are constructive -- and
we do have some. But I am not going to share them with people who are
prepared to wipe them away under the table.(16)
In the same breath, the
commercial fishing groups state almost unanimously that they are open
to a transparent negotiation process, in which all parties would be not
only represented but interactive as well. Oddly enough, while nearly all
the parties say they are prepared to discuss in order to find solutions,
few of them seem genuinely prepared to listen. Both aboriginal and non-aboriginal
groups claim to be victims; this situation is not conducive to discussion,
especially since it is felt from the outset that DFO can do no right.
When the debate was at its height, the representative of the B.C. Fisheries
Commission, in an inspired observation, said that the only real victim
was the resource itself. Until all the parties adopt and clearly demonstrate
the same approach, the chances of reaching an agreement remain slim.
In the opinion of several
observers, the fact that DFO succeeded in reaching only piecemeal agreements
and not an agreement for the entire Fraser system stems not only from
lack of time, but also from lack of communication, on two fronts: first,
between DFO and the various aboriginal communities along the river and,
second, among these communities themselves. It seems clear that as long
as there is no agreement for the entire Fraser system, salmon management
will remain a very difficult, if not impossible, task.
2.
Surveillance and Enforcement
While the obvious lack of
communication resulted in frustration and incomprehension among fishing
groups, it must also be said that senior DFO officials have their own
communication gap.
Surveillance and enforcement
constitute one of the most contentious and clouded fisheries issues. Several
witnesses declared that DFO had not fulfilled its responsibility to protect
the resource during the 1992 season by ordering that, under the AFS, charges
were not to be laid against offenders. The Pearse-Larkin report also notes
this situation: "Fishery officers had been instructed not to lay
charges while delicate negotiations about fishing Agreements were ongoing."(17)
Called upon to comment on this statement, DFO Pacific Regional Office
Director General Pat Chamut and Deputy Minister of Fisheries Bruce Rawson
gave divergent responses.
Asked about monitoring violations,
Mr. Rawson stated, "On the question about requiring fisheries officers
not to proceed with charges, I did not issue those instructions to anyone."(18) In support of his statements, the Deputy Minister noted
that approximately 80 charges had been laid against aboriginal people
in 1992. A DFO news release issued in early February 1993 confirmed that
there had been 85 charges laid against aboriginal people, although it
was not specified whether or not they were participating in the commercial
fishery.
Questioned in turn on this
point, DFO Pacific Regional Office Director General Pat Chamut attempted
to place the comment in the Pearse-Larkin report in context by stating,
"[. . .] pending the completion of consultation, it was not
legally feasible for the department to exercise full enforcement until
we had designed a fishing plan that was intended to be in place when the
main fishery was concluded."(19)
The Deputy Minister shot back, "I have to say that no such directive
was issued, straight like that." This exchange between senior officials
reveals a communication gap among officials themselves, which resulted
in a clouded -- rather than contentious -- situation that should not have
come about, given the state of affairs. According to the Pearse-Larkin
report, several observers had the impression that the 1992 fishing season
was out of control; so, it appears, were the actions of officials.
The number of charges laid
and the identity of the accused remain unclear, which demonstrates that
DFO's actions were not particularly transparent; a fact confirmed by the
news release mentioned earlier. The Department's enforcement officials
confirmed that the 85 charges against aboriginal people had been laid
under the AFS; this would mean that no charges had been laid against members
of commercial aboriginal fishing groups. That situation is hardly likely,
but it has been impossible to obtain official comments on this matter
from DFO.
This obvious lack of past
and present transparency will likely be detrimental to the smooth operation
of the AFS; as well, the confusion created by senior officials' statements
-- and particularly the fact that they made no attempt to correct the
situation afterward -- has only exacerbated feelings of insecurity among
the parties concerned. This absence of transparency has also led some
individuals to overstep the rules, which has added a little more pressure
and confusion to a situation that was chaotic from the outset.
3. Pilot Projects
for the Commercial Sale of Fish
Caught for Traditional
Purposes
In 1992, one component of
the AFS, pilot projects for the commercial sale of salmon caught under
community licences, caused a great deal of interest because it created
a precedent. Three commercial sale pilot projects were the subject of
nine agreements. These pilot projects were designed so that they would
neither disturb the traditional sharing among groups nor be detrimental
to the processing industry. Transactions made under these pilot projects
were to be subject to the legislation and regulations governing commercial
sales.
With hindsight, we can now
state that some people saw the pilot projects as being applicable in every
location without surveillance; as a result, in certain locations the 1992
fishing season was an open fishery subject to no rules whatsoever. The
issuance of individual licences for community fishing did a great deal
to make the situation even more chaotic. DFO did demonstrate a lack of
discretion: by proceeding in this way, it suggested that everyone had
this privilege. The result was that surveillance became impossible both
in law and in fact. As we shall see in greater detail, DFO planned to
issue no further such individual licences in 1993, and to regulate community
licences much more strictly.
One major part of the AFS
issue could be summarized as follows: do aboriginal peoples have the right
to sell fish caught under non-commercial licences? Obviously, this question
has a two-part answer: in the opinion of aboriginal peoples, who have
always seen fish as an exchange currency, sale is a means of economic
development leading to self-sufficiency and autonomy; in the opinion of
the other -- sport and commercial -- fishing groups, authorizing the sale
of fish caught for traditional purposes favours one group and thus distorts
the market by creating unfair competition.
As the following comment
by a representative of the Commercial Fishing Industry Council clearly
demonstrates, support for even the Supreme Court decision is far from
unanimous: " I suppose anybody can take the Sparrow decision
and make what they will of it, but as far as fishermen here see it, the
Sparrow decision implies no obligation on the part of the government
to commercialize the sales of fish."(20)
a.
Participation by Aboriginal Peoples in the Commercial Fishery
This strong resentment of
the sale of fish by aboriginal people was probably the determining factor
that incited non-aboriginal commercial fishing groups to launch a vigorous
movement against the AFS; this opposition continued during the 1993 season.
According to their own statements,
non-aboriginal fishing groups are in favour of participation by aboriginal
people in the commercial fishery, on condition that they respect the established
rules governing that fishery. In other words, they are in favour of allowing
aboriginal people to participate more actively in the commercial fishery,
but under an industrial strategy that would respect the present rules
governing the commercial fishery. Greater participation by the aboriginal
people would be facilitated by the federal government's buying back existing
licences.
However, this strategy would
be expensive. A study prepared by the commercial fishing groups indicates
that reallocating 5% of present quotas to aboriginal people would result
in a $547-million shortfall over a 20-year period for licence holders,
crews and plant workers. Still assuming the reallocation of 5% of present
quotas, it is estimated that compensation to licence holders alone would
cost $43 million.(21) The 1992 AFS
budget for buying back licences amounted to $7 million, a very small amount
for such a large undertaking. Even if the methodology used to arrive at
the estimate can be challenged, it is still clear that transferring part
of the total quota to aboriginal people will certainly result in expenditures
exceeding $7 million.
b. The Difficulty
of Recognizing a Constitutional Right
That being said, non-aboriginal
groups lose sight of the fact that the Constitution has recognized that
aboriginal people have a right and that, from now on, that right must
be respected -- even though lengthy judicial thought will undoubtedly
be required to reach a strong, unanimous interpretation of Sparrow
on the commercial sale of fish by aboriginal people. Indeed, that lengthy
process is now being conducted through decisions being made by the lower
courts (see the section on Sparrow above).
The issue consists, not
in this process, but in the fact that it is difficult to give recognition
to a constitutional right that people already have; we are brought back
to the constant tension between collective rights and individual rights.
While it is true that the commercial sale of salmon is already an important
activity for non-aboriginal commercial fishing groups, it is no less true
that authorizing aboriginal people to sell their catches commercially
seems to be a good means of community economic development -- although
this economic approach must respect the principle of sustainable development.
Obviously, in light of the events of the 1992 season, this did not happen.
The pilot projects for commercial
sale did not have the desired effects, and demonstrated that it is difficult
to control the spin-off effects of such projects. The single, simple argument
that this approach is not viable seems enough for DFO to thoroughly rethink
this component of the AFS. Regardless of who was responsible for the alleged
disappearance of 500,000 salmon in 1992, one main cause of the problem
is still a government policy that was unable to meet viability criteria.
DFO's primary responsibility is to protect the fisheries resource; it
did not demonstrate that it had assumed this responsibility, and no one
else feels that increased surveillance will improve the situation; quite
the contrary.
As the Pearse-Larkin report
suggests, the justification for the commercial sale of fish by aboriginal
people must be recognized; but, at the same time, the operation of these
sales must be rethought. For this to happen, there must be better consultation
and greater participation in the process by all parties concerned. If
even one party feel that its rights have been infringed upon, then there
will still be abuses.
Because the fisheries are
a public resource, extreme measures are sometimes required. While it is
true that all parties concerned are prepared to negotiate in exchange
for genuine participation in the process -- even if some scepticism about
their being prepared to listen to each other is appropriate -- DFO should
seriously consider letting the main parties concerned negotiate among
themselves a framework agreement for a comprehensive Fraser fishery strategy.
The negotiating group could receive technical and administrative assistance
from DFO but, ideally, the solutions should actually come from the parties
concerned, not from the Department. This strategy would have the advantage
of promoting the development of local solutions to local problems and
encouraging exchanges of views among the groups that use and want to protect
the same resource.
If the parties concerned
failed to reach a concrete, universally acceptable solution, DFO would
be justified in significantly limiting the fishing rights of all parties,
citing the need for conservation and the danger of a possible recurrence
of the events of 1992. The situation is so grave that half-measures are
unacceptable. Only when all parties have demonstrated their goodwill will
we be able to expect some degree of balance again.
As we shall see, DFO did
not adopt this approach for 1993, though it may be obliged to do so eventually.
4. The Right to
Manage and the 1992 Fishing Effort
In addition to communication
gaps and the debate over aboriginal people's right to sell salmon commercially,
another fundamental part of the AFS issue is the greater latitude it gives
to aboriginal people to manage the fisheries.
This situation, however,
is not limited to the fisheries. Rights to manage resources are major
components of aboriginal land claims. When we remember that the Constitution
Act, 1982 must also be taken into consideration, we realize the complexity
of the situation. This complexity is increased by the fact that the resource
concerned, salmon, unlike other resources, is migratory, depends on factors
that are often impossible to evaluate, has many subspecies, and has commercial,
social and ceremonial value.
In 1992, some 57 bands in
B.C. signed 80 agreements providing for their participation in salmon
management and development. In particular, these agreements provided that
the aboriginal communities could issue fishing licences and monitor catches.
Non-aboriginal fishing groups
perceived this devolution of a right to manage as nothing less than abandonment
by DFO of its responsibility to manage and protect the resource. Paradoxically,
although the aboriginal people locally claim the right to manage and sell
salmon commercially, they are not inclined to assume full responsibility
for the resource; on the contrary, they request DFO participation. The
statement by a tribal council on this matter is eloquent: "The Department
of Fisheries and Oceans has a responsibility to support the development
of local salmon management, and in particular to provide scientific and
technical information and knowledge required for the development by local
boards of production, harvest and management plans."(22)
It must be acknowledged
that in modern fisheries, fishing groups, regardless of race, cannot be
seen as prominent environmentalists or protectors of the resource, particularly
when the resource is a public one of great value, and limited time is
allowed to harvest it. Seen in this light, fishing groups are all predators
rather than proponents of sustainable development, whatever they may say.
While DFO worked very hard
to increase participation by aboriginal people in management of the resource,
it apparently failed to ensure that non-aboriginal fishing groups participated
in that management. In the opinion of the latter groups, balanced management
of their resource was disrupted with the arrival of a new management participant;
the situation appeared all the more threatening since these groups' own
attempts to make their interests heard had been to no avail. As we have
noted, the only solution in the opinion of non-aboriginal fishing groups
is a commercial approach, which would allow aboriginal peoples to participate
in the commercial fishery and compete within its present framework.
It is true that DFO's approach
of allowing piecemeal management of a resource whose cyclic and migratory
characteristics are as complex as those of salmon passes understanding.
How can it be conceivably possible to manage locally a resource that migrates
to that territory only once a year? Furthermore, in many locations, responsibility
for management appears to lie with the villages, a situation that, while
certainly democratic, may not be flexible or prompt enough to ensure sound
salmon management. How can some communities claim, as they do, that their
territories account for 20%, 30% or even 50% of Fraser salmon production,
when we know that salmon is an anadromous species and therefore needs
salt water as much as fresh? What would the powers of these local managers
amount to if the Americans opted for a massive interception of salmon
originating in the Fraser -- as in fact they do with impunity elsewhere.
Management of a public resource
goes beyond geographic and social boundaries. Managers who are not fully
responsible for their actions cannot be made accountable for them, and
will therefore never allocate the resource fairly. At present, while DFO
may not have been a very skillful manager of this resource, it is the
only manager, and all parties know whom to blame. This is, in part, the
way things should be, and this is the way we probably should try to go,
while ensuring that objectives and decisions are more transparent.
THE 1993 SEASON:
PHASE II OF THE AFS
Following the events of
the 1992 fishing season, nearly all parties hoped that stricter management
would correct the situation. As Pearse and Larkin emphasized in their
report:
We cannot allow the turmoil
of 1992 to be repeated. If it happens again, confidence in the management
system will be hard to repair, and progress in Indian fishery policy
will suffer a serious setback. Most important, valuable salmon resources
could be irreparably harmed.(23)
Pearse and Larkin set out
four essential conditions for improvement of the situation. These conditions
could also easily be considered recommendations to DFO; they are as follows:
all participants must be committed to conservation; aboriginal groups
must work together; fishermen and mangers must be accountable; and there
must be strict enforcement.
Pearse and Larkin also recognize
that these four conditions can be met only if communication, dissemination
of information and consultative structures are also improved. And, since
DFO is the main fisheries management agency, the burden of improving these
components of management of the resource lies with DFO. In early 1993,
the Department therefore suggested the following Action Plan:
- extensive consultation with all band
chiefs in the Fraser system and all parties concerned;
- negotiation and finalization of 1993
agreements before the spring;
- training additional fisheries guardians;
- additional hydro-acoustic monitoring
gear;
- completion of the initial licence retirement
program;
- increased regulation of the purchase
of fish and recording of sales;
- increased surveillance and enforcement;
and
- continued testing of controlled sale
of fish from the aboriginal fishery.
DFO followed this Action
Plan fairly closely. A blitz of discussions and negotiations in early
1993 made it possible to reach some 26 agreements with aboriginal groups
and, although the agreements did not cover the all B.C. waterways, as
the Pearse-Larkin report had recommended, work toward this end continues.
In addition, new training
programs made it possible for 60 aboriginal fisheries guardians to join
ranks with the 81 such guardians trained in 1992. The voluntary commercial
fishing licence retirement program was also successful: 240 licence retirements
were requested during the first round and 167 during the second round,
while 75 licences were retired at a cost of $5.95 million. Lastly,
additional, more sophisticated hydro-acoustic monitoring stations than
those at Mission were installed on the Fraser.
Even so, if we rely on accusations
made by many parties, the communication gaps do not seem to have narrowed.
As we have noted, the apparent lack of communication is a lack of listening
more than anything else, by DFO as well as by non-aboriginal commercial
fishing groups; this is a problem that only intensifies with time, and
one that DFO has not yet been able to solve.
Aside from the DFO 1993
Action Plan, however, the highlight of this fishing season was the announcement
of the new Aboriginal Communal Fishing Licences Regulations, adopted
on 18 June 1993. Made under the Fisheries Act, these new Regulations
give concrete expression to the 1992 measures taken to increase aboriginal
people's participation in managing their fisheries and to clarify the
application of the Regulations. Under these new Regulations, unlike the
previous year, licences issued to aboriginal people will be community
licences, not individual licences, and will include conditions providing
control of the fishing effort and a surveillance and enforcement system.
The 1993 Regulations renew
the three pilot projects for the commercial sale of fish caught by aboriginal
peoples under community licences. In addition to the pilot project on
the Fraser supervised by the LFFA, another pilot project will be carried
out on the Skeena River, where the sale of 150,000 sockeye salmon allocated
under the heterogeneous salmon bank management plan will be authorized;
lastly, a third pilot project will be carried out on the Somass River
at Port Alberni. It is anticipated that this third pilot project will
generate revenue of over $1.5 million.
Certainly we can recognize
the goodwill of DFO, which seeks to meet the indirect requirements of
Sparrow; but, in light of the mixed results of the 1992 experiment,
we wonder whether these circumstances will only increase the frustration
and anger of non-aboriginal commercial fishermen. DFO does not seem to
shrink from confrontation, however; this year again, and despite estimates
that suggest strong salmon runs, it closed or limited some previously
authorized fisheries.
Early in the 1993 season,
DFO predicted record catch levels, possibly totalling 42.6 million salmon:
12 million sockeye, 25 million pink, 2 million keta, 3 million coho,
and 600,000 chinook. Initial estimates for the Fraser call for sockeye
runs of up to 17.4 million, which would mean allocations of 9 million
for the commercial Canadian fishery, 2.4 million for the American fishery,
and 975,000 for the aboriginal fishery, including 625,000 to the LFFA
for subsistence purposes and commercial sales. Retiring and buying back
75 licences has made it possible to allocate 190,000 additional salmon
to the aboriginal fisheries.
CONCLUSION
The 1993 west coast fishing
season will be decisive for DFO fisheries management policy. After learning
about the errors it committed in 1992, DFO expended a great deal of energy
in finding grounds for agreement on salmon management. With the exception
of the obvious communication gap, DFO has worked very hard to reach a
collective, coordinated framework agreement for the Fraser, the absence
of which was a serious shortcoming in 1992. At the same time, DFO has
sought to improve surveillance and enforcement, and has refined the agreements
on the pilot projects for the commercial sale of fish by aboriginal people.
Furthermore, in June 1993, Canada reached an agreement with the United
States on west coast salmon catches; this issue in salmon management is
often ignored in the current debate, but is crucial to the viable use
of this resource.
Despite all these initiatives,
DFO has been unable to rally all parties concerned to support its management
policy; non-aboriginal commercial fishing groups continue to feel excluded.
As we have already noted, only comprehensive cooperation, carried out
to the satisfaction of all parties concerned, would ensure sound salmon
management. No other approach will synchronize the federal bureaucracy's
clock with the biological clock of the fish.
Management of west coast
salmon, from Sparrow to the AFS, is certainly necessary for sustainable
development of this resource, but it is also being used as a testing ground
for another form of sustainable development, that of aboriginal communities.
At present, there is no guarantee that either will last.
SELECTED BIBLIOGRAPHY
Blewett, Edwin. Compensation
Valuation Study: A Study Completed for the Commercial Fishing Industry
of Issues Related to Compensation to the Commercial Fishing Industry for
Reallocations to the Aboriginal Fishery. Vancouver, November 1992.
Canada, Fisheries and Oceans
Canada. Aboriginal Fisheries Strategy. June 1992.
Canada, House of Commons,
Standing Committee of the House of Commons on Forestry and Fisheries.
Minutes of Proceedings and Evidence. Issues 16, 17 and 18, January
1993.
Pearse, Peter H. and Peter
A. Larkin. Managing Salmon in the Fraser. Vancouver, December 1992.
(1) Cecil Andrus, Governor of Idaho, quoted in "Send
Strong Signal on Salmon," Northwest Energy News, January/February
1993, p. 5.
(2)
R. v. Sparrow, [1990] 1 S.C.R. 1075.
(3)
Michael Asch and Patrick Meadows, "Aboriginal Rights and Canadian
Sovereignty: An Essay on R. v. Sparrow," Alberta
Law Review, XXIX, 2, 1991, p. 498.
(4)
Chris Tennant, "Justification and Cultural Authority in s 35(1)
of the Constitution Act, 1982: R. v. Sparrow," Dalhousie
Law Journal, Vol. 14, No. 2, 1991, p. 372, at p. 386.
(5)
W.I.C. Binnie, "The Sparrow Doctrine: Beginning of the End or End
of the Beginning?" Queen's Law Journal, Vol. 15, 1990, p.
217.
(6)
David Elliot, "In the Wake of Sparrow: A New Department of
Fisheries?", UNB Law Review, Vol. 40, 1991, p. 23, at
p. 41; Binnie (1990), p. 217, at p. 237; Sébastien Grammond,
"La protection constitutionnelle des droits ancestraux des peuples
autochtones et l'arrêt Sparrow" [the constitutional protection
of the aboriginal rights of aboriginal peoples and the Sparrow
decision], McGill Law Review, 36, 4, 1991, p. 1382, at p. 1396.
(7)
Grammond (1991), p. 1382, at p. 1391.
(8)
R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1100-1101.
(9)
Reid v. Canada [1993] 2 C.N.L.R. 188.
(10)
R. v. Van Der Peet, R. v. Gladstone, and R.
v. Smokehouse, Court of Appeal of British Columbia, unpublished,
25 June 1993.
(11)
R. v. Van Der Peet (1993), 132.
(12)
Peter H. Pearse and Peter A. Larkin, Managing Salmon in the Fraser,
Vancouver, November 1992, p. 13 hereafter "Pearse-Larkin Report.
(13)
Canada, Department of Fisheries and Oceans, "Backgrounder II: The
Context," Aboriginal Fisheries Strategy, June 1992.
(14)
Canada, Fisheries and Oceans, "Backgrounder I: The Program,"
Aboriginal Fisheries Strategy, June 1992.
(15)
Canada, House of Commons, Standing Committee of the House of Commons on
Forestry and Fisheries, Minutes of Proceedings and Evidence, 25 January
1993, 16:63.
(16)
Ibid., 16:83.
(17)
Pearse-Larkin Report (1992), p. 18.
(18)
Canada, House of Commons, Standing Committee of the House of Commons on
Forestry and Fisheries, Minutes of Proceedings and Evidence, 25 January
1993, 16:24.
(19)
Ibid., 16:26.
(20)
Ibid., 16:39.
(21)
Edwin Blewett, Compensation Valuation Study: A Study Completed for
the Commercial Fishing Industry of Issues Related to Compensation to the
Commercial Fishing Industry for Reallocations to the Aboriginal Fishery,
Vancouver, November 1992.
(22)
Nuu-chah-nulth Tribal Council, Presentation to the Standing Committee
on Forestry and Fisheries, Vancouver, 26 January 1993, 4.
(23)
Pearse-Larkin Report (1992), 29.
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