Supreme Court once again establishes the special rights of First Nation fishermen
First Nations once again are forced to take the protection of their treaty and traditional rights to court as the media and others fight to remove the recognition of these rights ...
From Halifax's Chronicle Herald
Supreme Court: B.C.’s aboriginal-only fishery is indisputable, constitutional
VANCOUVER (CP) — The Supreme Court of Canada says that the disadvantage of aboriginal peoples in Canada is indisputable, and because of that an exclusive aboriginal-only fishery on British Columbia’s Fraser River did not violate the constitutional rights of non-native fishermen.
During a 1998 pilot project, the federal Department of Fisheries and Oceans allowed three aboriginal bands a 24-hour salmon fishery on the river while non-native fishermen remained at the dock.
In a decision released Friday, the high court justices ruled 9-0 that the federal government was within its rights to give the First Nations a head start on the commercial fishing season. "The disadvantage of aboriginal people is indisputable," said the court ruling.
"More particularly, the evidence shows in this case that the bands granted the benefit were in fact disadvantaged in terms of income, education and a host of other measures. This disadvantage, rooted in history, continues to this day."
The decision upheld the convictions of more than 50 non-native fishermen who defied the department, and set their nets for sockeye salmon during the window reserved for the aboriginals.
++++++++
Special fishing permits for aboriginals okayed
Canwest News Service - June 27
Giving exclusive commercial fishing licences to aboriginal groups is consistent with the Charter of Rights and Freedoms and does not discriminate against non-aboriginal fishermen, the Supreme Court of Canada ruled yesterday in a unanimous decision. Ruling on what's known as the Kapp case, the top court said a federal fisheries program that allows three native bands a 24-hour head start on fishing for salmon in British Columbia's Fraser River is not unconstitutional because it qualifies as an affirmative action program.
+++++++++
Canada urged to cancel native commercial fisheries after court decision
Larry Pynn, June 27, 2008
The Supreme Court of Canada on Friday upheld the constitutionality of aboriginal-only commercial fisheries, prompting a coalition of non-native fishermen to urge Prime Minister Stephen Harper to cancel them outright.
The B.C. Fisheries Survival Coalition, which says it spent about $2 million on their unsuccessful constitutional challenge, called on Harper to stick to earlier comments in which he expressed opposition to race-based commercial fisheries.
In a letter published in the Calgary Herald on July 7, 2006, Harper wrote: "Let me also be clear - in the coming months, we will strike a judicial inquiry into the collapse of the Fraser River salmon fishery and oppose racially divided fisheries programs."
In an interview Friday, coalition executive director Phil Eidsvik said the court decision "puts it back on the desk of the prime minister. We expect him to keep his promise."
The Supreme Court ruled unanimously that an aboriginal-only commercial fishery is consistent with the Charter of Rights and Freedoms because it sought to improve the economic conditions of a disadvantaged group, in this case, three aboriginal bands from B.C.
The dispute had been winding its way through the courts since 1998 when 145 commercial gillnet fishermen were charged under the Fisheries Act for fishing on the Fraser River during a closed time. The fishermen were protesting a federal fisheries pilot program that gave special licences to the Musqueam, Burrard, and Tsawwassen bands that allowed only them to fish during the closed time and sell their catch.
In 2004, the B.C. Supreme Court overturned a lower court decision that found the aboriginal-only commercial fishery program amounted to racial discrimination.
Eidsvik said there are 97 native bands on the Fraser River and that if special commercial fishing rights are expanded to all of them, there'll be no salmon left for anyone else.
"There is simply not enough fish," he said. "The Supreme Court is basically saying go ahead, you can eliminate all Canadians from the fishery except aboriginals. It's disturbing."
Musqueam Chief Ernie Campbell said the pilot commercial sales program is part of the federal aboriginal fisheries strategy that followed the Supreme Court of Canada Sparrow decision in 1990 affirming the aboriginal right to fish.
The amount the Musqueam sell annually under the program varies from year to year, Campbell said, but a typical range is 50,000 to 90,000 sockeye.
Campbell noted natives bartered their fish before and after European contact, and said he hopes that the court ruling results in an expansion of the sales program. "I'd like to think so. Aboriginal people have not been getting their share - the economic benefit - of the resource."
Stewart McDonald, a third-generation commercial fisherman based out of False Creek who was part of the coalition's legal battle, expressed disappointment at the court decision.
He said the court's suggestion that the Musqueam band is disadvantaged and somehow deserving of special commercial fishing rights is ridiculous. "That's absurd. If you counted up all their assets per capita they're probably the richest people in Canada. How can they say they're disadvantaged? It's beyond comprehension."
Tsawwassen First Nation Chief Kim Baird said the ruling puts an end to third-party challenges to what has been a discretionary federal program. She said that since Tsawwassen started benefitting from the program, the first nation has obtained stronger federal fishery commitments through its treaty process.
However, Baird said that just because the Tsawwassen agreed to a formal treaty in 2007, they "still have a way to go to integrate economically into B.C."
Conservative MP John Cummins (Delta-Richmond East) said the court ruling leaves non-native gillnet fisherman on the Fraser River economically disadvantaged.
"They are the ones paying the price," he said. "Their hardship has been ignored by the courts. They're ordinary Canadians who bought a boat, a licence and some gear. They never made a huge whack of money. They made a living."
With a file from Canwest News Service