First Nation woman in BC finally wins right to fish after 9 years and 200 court appearances
9 years and 200 court appearances later, aboriginal B.C. woman free to fish
By Steve Mertl | Daily Brew - May 29, 2013
There's probably no better example of the tension between B.C. aboriginal fishing rights and Canadian law than the case of Patricia Kelley.
After a nine-year legal battle involving more than 200 court appearances, the Sto:lo First Nation woman was given an absolute discharge in B.C. provincial court earlier this month on charge of violating the Fisheries Act. The federal government also was ordered to pay her almost $2,500 for almost all the salmon it confiscated from her in 2004, according to the Chilliwack Times.
Although the conviction stands, Kelley, who also uses the aboriginal name Kwitsei Tatel, felt vindicated, telling the Globe and Mail this week she had struck a blow for aboriginal rights.
The case, which began when federal fisheries offices confronted her as she was preparing to unload a crate of freshly caught sockeye salmon at a Fraser Valley processing plant, turned into a gruelling ordeal that involved personal humiliation.
At one point she was arrested for drumming and chanting outside the courthouse in Chilliwack.
"They detained me. They did two vaginal-anal checks on me," she told the Globe, sobbing. "It's so humiliating. This is ridiculing. It's awful. It causes a big heartache to even say that."
At one point, when she missed a court appearance, the RCMP put her mug shot on a Crimestoppers bulletin that appeared in the newspaper, she said.
"I felt criminalized," Kelly said. "I felt humbled before my family and to people I was looking to get work with. It hurt so much."
Conflict between the aboriginal fishery and commercial and sports fishermen has gone one for decades, especially on the Fraser River where the Sto:lo live.
Tensions have grown as salmon stocks have declined and the stakeholders fight for a dwindling share of the catch. Confrontations have taken place on the river, sometimes resulting in violence.
The Constitution gives First Nations a priority right to catch salmon for food, social and ceremonial purposes. But some aboriginal fishermen claim a right to sell their catch commercially, arguing their people traded fish with other First Nations before Europeans arrived.
The Nuu-chah-nulth First Nation on Vancouver Island won a case last year when the Supreme Court of Canada refused to hear an appeal of a B.C. decision that allowed them to sell their catch for a profit, Postmedia News reported at the time.
The Times reported Kelly was charged in 2004 of "purchasing, selling and possession of fish" contrary to the Fisheries Act. She was convicted four years later but contested the verdict, arguing she had an aboriginal right to the fish.
The Crown recommended Kelly be handed a "modest fine" and given a conditional sentence the Times said. Kelly urged the judge to use the "widest discretion possible" in her sentence, including an absolute discharge and compensation for 276 of the 296 salmon that were seized because the Crown could only prove 20 were caught outside the legal fishing opening.
Kelly, who now lives in Alberta, told the Globe she learned about the court decision via email.
"I said amen. I'm thankful for the judge hearing me out."
Although the case took a psychological and financial toll, Kelly said she's glad she persisted over almost a decade.
"I feel proud I stood up," she told the Globe. "I stood up in the house of law and I ruled."
Kelly said she plans to come back to B.C. to fish the Fraser River this summer.
"Yes. I am going fishing again," she said. "And I'm not going after a permit. ... I don't need a permit from Canada. I'm unceded. I'm unconquered."