Strategic Governance and Legal Issues of Rights-based Approaches

A Canadian Experience

March 24, 2015

Location

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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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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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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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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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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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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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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 cohosalmon 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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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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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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Ahousaht Fishing Territories

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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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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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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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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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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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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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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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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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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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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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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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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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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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THANK YOU

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