This document provides an overview of fisheries governance and Aboriginal fishing rights in British Columbia, Canada. It summarizes the history of Aboriginal fishing cultures, the lack of treaties signed in BC, and current negotiations of treaties and litigation to address Aboriginal rights. A key development was the 2014 court recognition of an Aboriginal right to fish commercially for five First Nations. This established precedence and strengthened Aboriginal tenure rights, though negotiations continue over allocating fish to accommodate the commercial right. The document examines implications for fisheries management and the ongoing trial to further clarify Aboriginal rights and potential justifications for infringements.

1. Strategic Governance and Legal
Issues of Rights-based Approaches
A Canadian Experience
March 24, 2015

2. Location
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3. Brief History
• Before European settlement, fish formed the foundation
of coastal Aboriginal cultures and inspired many of their
ceremonies, folklore and art.
• Unlike the rest of Canada, few treaties were signed with
First Nations in British Columbia.
• Today, in British Columbia Aboriginal rights are being
addressed through negotiation of modern treaties and
through litigation.
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4. The Fish
Hundreds of species of fish are harvested off
Canada’s Pacific coast, including:
• Salmon (chinook, coho, sockeye, pink, chum)
• Pelagic (herring, tuna, sardines)
• Groundfish (halibut, sablefish, cod, etc.)
• Shellfish (clams, oysters, prawns, etc)
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5. THE FISHERIES
Three Main Fisheries
• First Nations Fisheries for Food, Social and
Ceremonial (FSC) Purposes
• Recreational Fisheries
• Commercial Fisheries
A fourth type of fishery has emerged recently:
• First Nations Communal Commercial Rights-
Based Fisheries
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6. Aboriginal Rights
• Aboriginal peoples of Canada are accorded special legal and constitutional
protections.
• The Canadian constitution recognizes and affirms “existing aboriginal and
treaty rights of aboriginal peoples of Canada…”
• Aboriginal rights are held communally by an Aboriginal group rather than
by an Aboriginal person.
• Aboriginal rights are site-specific and not held uniformly by all Aboriginal
peoples in Canada.
• In order to be an Aboriginal right, an activity must be an element of
practice, custom or tradition integral to the distinctive culture of the
Aboriginal group claiming the right.
• Infringement of Aboriginal rights may be justified based on legislative
objectives and societal interests.
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7. Global Considerations
• The recognition of Aboriginal rights in Canada is consistent with the overall
intent and specific objectives of voluntary guidelines.
Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the
Context of Food Security and Poverty Eradication
• An objectives of these guidelines is to “contribute to the equitable
development of small-scale fishing communities and poverty
eradication and to improve the socio-economic situation of fishers and
fish workers within the context of sustainable fisheries management.”
Voluntary Guidelines on the Responsible Governance of Tenure of Land,
Fisheries and Forests in the Context of National Food Security
• The guidelines highlight that “The eradication of hunger and poverty,
and sustainable use of the environment, depend in large measure on
how people, communities and others gain access to land, fisheries and
forests.”
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8. Aboriginal FSC Fisheries
• In 1990, the Supreme Court of Canada recognized for the first time an
Aboriginal right to fish for food, social and ceremonial (FSC) purposes.
• The right to fish for FSC purposes carries with it a priority of allocation to
the fishery, subject only to conservation.
• In years of low abundance, all of the allowable harvest in a given area may
be allocated for FSC purposes (i.e., no recreational or commercial
fisheries).
• The 1990 court decision applied to just one First Nation but, as a matter of
policy, other First Nations are allocated fish for FSC purposes.
• In British Columbia, there are 198 First Nations with a total population of
200,000 (5% of the total population of British Columbia).
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9. Recreational Fisheries
• About 300,000 tidal water recreational fishing licences are issued annually
in British Columbia.
• No limit on the number of licences but regulations control the number of
fish an individual harvests, fishing times, fishing areas, etc.
• No allocation policy specifying the total recreational harvest or its priority
relative to the commercial fishery in most fisheries. Some exceptions:
– Pacific salmon allocation policy provides the recreational fishery an
allocation priority over the commercial fishery for chinook and coho
salmon and the commercial fishery a priority over sockeye, pink and
chum salmon.
– Pacific halibut allocation policy splits the combined commercial-
recreational allocation: 85% commercial and 15% recreational. The
policy also allows the recreational fishery to expand by leasing
commercial halibut quota on an annual basis.
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10. Commercial Fisheries
• Canadian commercial fisheries are managed using a variety of input
controls and output controls.
• Since the late 1960s, limited entry licensing and individual transferable
quotas are widely used in managing commercial fisheries.
• This resulted in an overall decline in the number of commercial fishers and
a disproportionate reduction in the number of Aboriginal fishers.
• Commercial fishing licences and individual quotas are generally issued for
a one-year period and renewed annually.
• Some formal agreements allow Aboriginal communities to hold
commercial fishing licences up to 25 years.
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11. Newly Recognized Aboriginal
Commercial Fishing Rights
• There are two examples of an Aboriginal right to fish for
economic purposes recognized by the Supreme Court of
Canada.
– The Heiltsuk people hold an Aboriginal right to trade herring spawn-
on-kelp on a commercial basis (1996)
– In the Ahousaht case, five Aboriginal groups on Vancouver Island were
found to hold an Aboriginal right to fish within the environs of their
territories and to sell that fish (2014)
• Aboriginal rights to fish for economic purposes do not have
the same allocation priority as a right to fish for FSC purposes.
• An economic right does not grant an exclusive fishery to
Aboriginal people and does not extinguish the common law
right of public access to the fishery.
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12. Ahousaht Fishing Territories
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13. Ahousaht Judgment
• The Ahousaht judgment found that the five First Nations each have a right
to fish in their territories to a limit of nine miles offshore and to sell fish
into the commercial marketplace.
• Canada’s fisheries management system infringed the right but the court
did not rule on whether or not the infringement was justified.
• The court ordered the parties to consult and negotiate the manner in
which the commercial right could be accommodated and exercised
without jeopardizing Canada’s legislative objectives and societal interests.
• If negotiations are unsuccessful, either party could request a continuation
of the trial to determine if Canada can justify its infringement of the
commercial right.
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14. Ahousaht Fishing Right
Negotiations 2010 to 2015 have focused on:
– How much fish is needed to accommodate the
commercial right
– Preferred means of fishing
– Priority relative to other harvesters
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15. Ahousaht Right – How Much Fish?
Court Direction
• The right is something less than an unrestricted commercial right on an industrial
scale, but something more than exchanging fish for money or other goods.
• Not a right to an exclusive fishery.
• No specific direction on how much fish required to accommodate the right.
Ahousaht
• Proposed significant portion of the total allowable harvest (e.g., 25% of the halibut
and 50% of the herring) in their coastal area.
Government
• Proposed lower portions of allowable harvest based on considerations, such as
abundance of the fish stocks, population, the level of commercial access relative to
other Aboriginal and non-aboriginal harvesters.
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16. Ahousaht Right – Preferred Means of Fishing
Court Direction
• The court characterized the preferred means of fishing the
Aboriginal right as community-based, multi-species, localized
fisheries, involving wide community participation, using small low-
cost boats.
Ahousaht
• Proposed designating numerous individuals to participate in the
fishery, using a variety of vessels and gear.
Government
• The government supports wide community participation but has
proposed a maximum vessel length (e.g., 25 feet) and standards for
fishery monitoring/catch reporting.
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17. Ahousaht Right - Allocation Priority
Court Direction
• FSC allocations are a higher priority than the Aboriginal commercial fishing right.
• The government must demonstrate that it has taken the right into account and has
allocated the resource in a manner respectful of the priority of those rights.
Ahousaht
• Proposed their commercial fishing right is the second allocation priority, after FSC,
but a higher allocation priority than recreational and general commercial fisheries.
Government
• The government is reviewing its policies to see if changes are needed to
accommodate the new Aboriginal commercial right to fish.
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18. Strength of Tenure
Aboriginal Fisheries
– The Canadian constitution recognizes aboriginal and treaty rights of
aboriginal peoples of Canada.
– FSC fisheries are the top harvest priority.
– The newly established Aboriginal commercial fishing rights have strong
legal underpinnings.
Recreational Fisheries
– The common law right to fish in tidal waters applies to the recreational
fishery. This right can be limited or abrogated by the enactment of legislation.
– Access to the recreational fishery is largely based on policy (e.g., policies that
provide the recreational fishery a share of the allowable harvest).
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19. Strength of Tenure
Commercial Fisheries
– There is a common law right to fish in tidal waters. This right can be
limited or abrogated by the enactment of legislation.
– The introduction of limited entry licences and individual transferable
quotas has strengthened tenure in commercial fisheries.
– Fisheries allocation policies setting out relative commercial and
recreational harvest priorities have strengthened commercial tenure
in some fisheries (e.g., halibut).
– Government of Canada policies concerning increasing Aboriginal
participation in commercial fisheries has mitigated potential negative
impacts (i.e., voluntary relinquishment of commercial fishing licences
which are re-assigned to First Nation communities).
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20. Ahousaht Fishing Right - Key Decisions
Perspective of the First Nation Communities With The Fishing Right
Key Strategic Decisions Made
• To pursue the recognition of commercial fishing rights through both (a) negotiation of
claims and (b) the courts.
Why
• Participation of community members in the commercial fishery declined as a result of
limited entry, concentration of individual transferable quotas on fewer boats, voluntary
licence relinquishment, etc.
• Government efforts to increase commercial fisheries access viewed by the communities
as insufficient – i.e., number of licences, quantity of quota and lack of opportunities for
small-scale participants.
Impact of Court Judgment
• Strengthened commercial fishing tenure rights, greater access to fish for economic
purposes and greater flexibility in how to harvest (i.e., in general commercial fisheries or
separate small-scale local fisheries established to accommodate the fishing right).
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21. Looking Back
The evolution of commercial fisheries management has
strengthened tenure for commercial harvesters.
– Factors strengthening tenure include, limited
entry, individual quotas, and allocation policies.
– However, the security of tenure for commercial
harvesters is based mainly on policy and does
not have the same constitutional protection as
Aboriginal rights, established by treaty or court
decisions.
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22. Looking Back
The Ahousaht decision has influenced how fisheries access is
provided to First Nations with commercial fishing rights.
– The government’s preferred approach was to provide
Aboriginal groups licences and quota to participate in the
general commercial fisheries.
– Recently, the government agreed to negotiate Ahousaht
commercial fisheries that operate separately for the
general commercial fishery.
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23. Looking Back
The legal recognition of the Ahousaht Aboriginal right to fish and
sell fish is having a profound impact on fisheries management.
– The government’s legislative and regulatory authority to
manage fisheries is being challenged.
– Decisions on conservation objectives and authorizing
commercial fisheries are being contested.
– Existing policies (e.g., salmon allocation policy) and
operational decisions are being reviewed to determine
whether they may adversely affect the Ahousaht fishing
right.
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24. Looking Forward
Ahousaht requested a continuation of the trial to determine if the
government can justify its infringement of the Aboriginal commercial fishing
right.
The trial is expected to further clarify the Aboriginal right and determine what
infringements of the right are justified on the basis of legislative objectives
and societal interests.
The fundamental objective of the modern law of aboriginal and treaty rights
is the reconciliation of aboriginal peoples and non-aboriginal peoples and
their respective claims, interests and ambitions.
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25. Next Steps
• The trial resumed on March 9, 2015 and is scheduled for 100 days.
• Subject to direction from the court, the fisheries management system
should create incentives to foster collaboration amongst all harvesters.
• Key issues for future fisheries management will include establishing:
– conservation objectives that apply to all harvesters
– stable and predictable access and allocation arrangements
– consistent fishery monitoring and catch reporting requirements
• A decision is expected in 2016, at the earliest.
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26. THANK YOU
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