Who owns the Fish? By Bob Hooton

[OldBlackDog]

Who Owns the Fish?
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Events unfolding in the Skeena River country are a major red flag for anyone paying attention. Our federal government fisheries managers, aka the Department of Fisheries and Oceans, have taken steps to eliminate recreational fishing for salmon in the best chinook fishing areas and times along the Skeena. The measure has nothing to do with conservation as one might expect. Instead it is in response to First Nations demands for exclusive access to chinook.

Provincial managers, aka the Ministry of Forests, Lands, Natural Resource Operations and Rural Development, have been pressured by DFO to invoke a mirror order that would eliminate all fishing (i.e. not just salmon fishing) it the areas of greatest concern. FLNRORD is rumoured to be poised to accommodate DFO.

My personal protest to Premier Horgan and FLNRORD Minister Donaldson is copied below. This is line in the sand time. Do not let these measures be instituted by the province. Nowhere is it written that fish are not a public resource. When conservation is not the issue there can be no justification for the impending exclusion of recreational anglers as is being pursued by all three levels of government.



Dear Premier Horgan and Minister Donaldson:

Gentlemen, as a lifelong resident of British Columbia and a devotee to wild fish conservation and management, I am deeply concerned over the directions being taken by your government relative to First Nations harvest of salmon and steelhead. The fundamental question now looming large is who owns the fish? In recent weeks there has been endless discussion and debate over the federal government’s Department of Fisheries and Oceans’ (DFO) regulation measures imposed on recreational fishing for salmon in several of the most popular areas along the Skeena River. DFO has requested what is referred to as a mirror order from the province’s Ministry of Forests, Lands, Natural Resource Operations and Rural Development to close fishing for all provincially managed non salmon. Throughout the debate DFO has alleged there is a conservation problem for chinook salmon that must be addressed by elimination of any potential for anglers targeting non-salmon to significantly influence the conservation status of chinook should they happen to catch (and release) one incidentally. However, no scientific evidence has ever been tabled in support of a conservation problem. When pressed on this fact in public forum on June 8th the senior DFO North Coast Division spokesperson admitted its management actions were not based on science or conservation. Instead they were in response to First Nations demands for sole access to the chinook fishery. Therein lies the precedent the Province is asked to support.



Constitutionally protected rights allow First Nations to harvest fish for food, social and ceremonial needs but only after conservation needs have been met. In other words, if there is a conservation problem, no one gets to fish. However, in the topic situation we have a tidal waters recreational fishery harvest of Skeena bound chinook as well as an in-river harvest by First Nations gill netters. So, either constitutionally enshrined allocation priorities are being violated or the alleged chinook conservation problem that calls for elimination of all public fishing in the river is without foundation.



By its actions and admission of June 8th DFO has demonstrated there is no case to be made for chinook conservation. In fact the province is being asked to assemble data from its angling guide data base in hopes that it will illustrate the potential harm done by guided anglers who reported catching chinook in the areas of concern in bygone years. Why does it fall to the province to be engaged in what gives every appearance of an eleventh hour bail out of DFO?



FLNRORD officials in Smithers claim they are embracing the DFO request in order to build collaborative relationships with both DFO and First Nations. That is entirely secondary to the fundamental question of conservation vs allocation.



Given that the requested mirror order has nothing to do with conservation but merely accedes to First Nations demands for exclusive access to popular public fishing areas, what justification can the province offer for eliminating such fishing opportunity? The precedent on the verge of being set here is monumentally significant and your Smithers staff are evidently oblivious to it. Are we now to accept that First Nations demands to exclude public fishers from any area they choose to identify will be endorsed by elected officials? Under what law of Canada do First Nations have such a right? The question of who owns the fish is now a fundamental question your government needs to address.

Your earliest possible response to these most pressing issues and questions is requested.





Yours truly,



R.S. Hooton

cc Bill Bosch, President, BC Wildlife Federation

Jesse Blake, President, BC Federation of Fly Fishers

Brian Braidwood, President, Steelhead Society of BC

 

[agentaqua]

Some unsupported legal assumptions in your letter, OBD.

W/o getting into is there a conservation concern or not debate - aboriginal rights are identified and upheld in colonial law within the main Act that defines the rest of laws within what we call today Canada - s. 35 of the Constitution Act.

The details are further spelled out within the body of case law developed through court decisions where First Nations have taken the feds to court for not following s.35. Federal policies (e.g. allocation policy) are supposed to reflect and follow case law and the authority based on the Constitution Act - but are in themselves not law, but policies. There are also regulations that are also supposed to detail how specific Acts are implemented - and all of the laws and regulations are supposed to follow s.35 and case law. Conservation has been ruled as the first priority in case law, followed by FSC needs - as you correctly pointed out.

Under the Fisheries Act and other legislation (e.g.British Columbia Sport Fishing Regulations) - both commercial fishing and recreational fishing are an opportunity verses a right - and if people are "in compliance" of the required prerequisites the Minister "may" issue a licence. FSC on the other hand - is an aboriginal right - with the caveats spelled out in colonial case law.

Then there is hereditary law and governance (a consensus-based existing governance system) housed within most Traditional unceded Territory. First Nations have never surrendered their governance mechanisms unless it was detailed in a Treaty - and there are few completed treaties in BC - but the few, newer treaties that exist have been incorporated into colonial law, including their governance mechanisms - which include the Nisga’a, Tla’amin, Tsawwassen, & Maanulth laws as detailed under their respective Final Agreement Acts.

The current unresolved question is: "Does hereditary law apply to the settled European descendants?"

If it is spelled out in the Final Agreement Acts that are co-signed by Canada - whatever details are listed there would apply to all Canadians. The existing traditional hereditary laws are still open for debate as to their applicability to non-members - but likely not applicable as far as colonial law is concerned. But...

The feds & the Province have a fiduciary duty to consult & accommodate FNs within their territories - and co-manage. So.. within their authority within their federal & provincial colonial laws - they can manage non-aboriginal fisheries.

It is s.35 and their fiduciary duties as dictated under case law that directs their engagement w FNs - not simply because DFO reminded FLNRORD they are supposed to - or instead to simply "accommodate DFO" as you claimed.

 

[OldBlackDog]

To be clear, I am not Bob Hooton.

Please forward your unsupported legal assumptions to Mr. Hooton here, http://steelheadvoices.com/?p=2091
http://steelheadvoices.com/?p=2091

Some unsupported legal assumptions in your letter, OBD.

W/o getting into is there a conservation concern or not debate - aboriginal rights are identified and upheld in colonial law within the main Act that defines the rest of laws within what we call today Canada - s. 35 of the Constitution Act.

The details are further spelled out within the body of case law developed through court decisions where First Nations have taken the feds to court for not following s.35. Federal policies (e.g. allocation policy) are supposed to reflect and follow case law and the authority based on the Constitution Act - but are in themselves not law, but policies. There are also regulations that are also supposed to detail how specific Acts are implemented - and all of the laws and regulations are supposed to follow s.35 and case law. Conservation has been ruled as the first priority in case law, followed by FSC needs - as you correctly pointed out.

Under the Fisheries Act and other legislation (e.g.British Columbia Sport Fishing Regulations) - both commercial fishing and recreational fishing are an opportunity verses a right - and if people are "in compliance" of the required prerequisites the Minister "may" issue a licence. FSC on the other hand - is an aboriginal right - with the caveats spelled out in colonial case law.

Then there is hereditary law and governance (a consensus-based existing governance system) housed within most Traditional unceded Territory. First Nations have never surrendered their governance mechanisms unless it was detailed in a Treaty - and there are few completed treaties in BC - but the few, newer treaties that exist have been incorporated into colonial law, including their governance mechanisms - which include the Nisga’a, Tla’amin, Tsawwassen, & Maanulth laws as detailed under their respective Final Agreement Acts.

The current unresolved question is: "Does hereditary law apply to the settled European descendants?"

If it is spelled out in the Final Agreement Acts that are co-signed by Canada - whatever details are listed there would apply to all Canadians. The existing traditional hereditary laws are still open for debate as to their applicability to non-members - but likely not applicable as far as colonial law is concerned. But...

The feds & the Province have a fiduciary duty to consult & accommodate FNs within their territories - and co-manage. So.. within their authority within their federal & provincial colonial laws - they can manage non-aboriginal fisheries.

It is s.35 and their fiduciary duties as dictated under case law that directs their engagement w FNs - not simply because DFO reminded FLNRORD they are supposed to - or instead to simply "accommodate DFO" as you claimed.

 

[agentaqua]

Thanks for the clarification, OBD. You are not Bob - as you say. Ok. Thanks.

I'm not interested in engaging Bob. I find his stuff often wrong - esp. his assertions and his grandstanding. I have no desire to waste any of my time giving him a platform.

I responded to his unsupported assertions here that you posted (and have so often on this forum) so that others reading your post would instead have accurate information to base an opinion on. That's the power of these forums - and I thank you and all the others for contributing to an informed dialogue.

I consider knowing your rights and how our legal system works (or doesn't) critical information that everyone should know. Being ignorant of either law or history does not give one immunity from the law, or our shared history.

 

[ericl]

That's the power of these forums - and I thank you and all the others for contributing to an informed dialogue.

All well & good but what if it says what I don't wanna hear?

 

[terrin]

Some unsupported legal assumptions in your letter, OBD.

W/o getting into is there a conservation concern or not debate - aboriginal rights are identified and upheld in colonial law within the main Act that defines the rest of laws within what we call today Canada - s. 35 of the Constitution Act.

The details are further spelled out within the body of case law developed through court decisions where First Nations have taken the feds to court for not following s.35. Federal policies (e.g. allocation policy) are supposed to reflect and follow case law and the authority based on the Constitution Act - but are in themselves not law, but policies. There are also regulations that are also supposed to detail how specific Acts are implemented - and all of the laws and regulations are supposed to follow s.35 and case law. Conservation has been ruled as the first priority in case law, followed by FSC needs - as you correctly pointed out.

Under the Fisheries Act and other legislation (e.g.British Columbia Sport Fishing Regulations) - both commercial fishing and recreational fishing are an opportunity verses a right - and if people are "in compliance" of the required prerequisites the Minister "may" issue a licence. FSC on the other hand - is an aboriginal right - with the caveats spelled out in colonial case law.

Then there is hereditary law and governance (a consensus-based existing governance system) housed within most Traditional unceded Territory. First Nations have never surrendered their governance mechanisms unless it was detailed in a Treaty - and there are few completed treaties in BC - but the few, newer treaties that exist have been incorporated into colonial law, including their governance mechanisms - which include the Nisga’a, Tla’amin, Tsawwassen, & Maanulth laws as detailed under their respective Final Agreement Acts.

The current unresolved question is: "Does hereditary law apply to the settled European descendants?"

If it is spelled out in the Final Agreement Acts that are co-signed by Canada - whatever details are listed there would apply to all Canadians. The existing traditional hereditary laws are still open for debate as to their applicability to non-members - but likely not applicable as far as colonial law is concerned. But...

The feds & the Province have a fiduciary duty to consult & accommodate FNs within their territories - and co-manage. So.. within their authority within their federal & provincial colonial laws - they can manage non-aboriginal fisheries.

It is s.35 and their fiduciary duties as dictated under case law that directs their engagement w FNs - not simply because DFO reminded FLNRORD they are supposed to - or instead to simply "accommodate DFO" as you claimed.

Why don't(can't) the FN's use this authority to boot the Open Net Cage Fish Farms off Wild Salmon migration routes?

 

[agentaqua]

All well & good but what if it says what I don't wanna hear?

I hear ya Eric. Truth is - nobody is forcing us to tab on any thread and read.

But I prefer to know or access accurate data and law & acquire that knowledge - irrespective of whether or not I like or agree with it. It's kinda the basis for both science and environmental assessments, as well. Debating the science & data helps to focus on the unknown and loose ends that need addressing.

If it is something I feel strongly enough about - I generally try to spend some time & effort to change it - if I can. Knowing the ins and outs of any debate or issue is key to knowing where pressure may or may not work. Admittedly, sometimes it's like either herding cats or chasing ones tail in responding on a forum. Keeping an eye on the lobby opposed to ones views is beneficial, as well.

But sharing knowledge is why I appreciate this forum and the posters on it. We all have some knowledge or experience to share. And Bob's is only 1 voice in 37 million - even if he does post copious unsupported assertions on his own blog.

Why don't(can't) the FN's use this authority to boot the Open Net Cage Fish Farms off Wild Salmon migration routes?

One could argue that is why Alert Bay manged to get an agreement to remove FFs from their territory. Took many years to get there, tho.

 

[RalphH]

Thanks Agentaqua for your summery. When I saw this on another site I also noted Bob made no reference to the expected low sockeye returns on the Skeena system which has lead to area FN switching their focus to Chinook. Similar regulations were in place in 2018 & 2019

 

[agentaqua]

Ya that's another angle that needs discussion as well, Ralph. I just picked out the most obvious low-hanging fruit when looking @ Bob's unsupported assertions. Thanks for bringing that up, as well.

 

[wescanmarine]

Its simple. The federal government sell us a license, that license says we can retain 10 chinook per year per license holder. Does it matter when we retain those fish? I am a supporter in no fishing rules in areas where endangered runs of fish are in migratory routes in fresh water. Leave them alone and let them breed. In the Salt though? thats just crazy

Very controversial, however I would agree that none can own the water column. Also I agree that First nations take more than their food fish. What is so tribal about 18 wheeler trucks with boom lifts loading fish totes on the side of the river where they are beach seining? Or mini seining lakes such as Shuswap and oysoyoos? How can you take brute stock and expect a return?

I say your allowed 10 fish per year so go get them.