Big Green Machine
Well-Known Member
Anyone talking about this?https://www.cbc.ca/news/canada/british-columbia/bc-first-nations-dfo-systemic-racism-1.5689277
FN Upset Over Reallocation of Salmon to Commercial Sector
- Thread starter Big Green Machine
- Start date
wildmanyeah
Crew Member
They still get first dibs as per the five nations supreme court ruling FSC---->Small Scale Sale fishery---> Then rec, the commercial for chinook.
The difference this year with covid and rec fishing pressure being way down Area G got relocated a significant chunk of the WVCI offshore rec quota (something I might add a certain member on here said there would be a zero chance in hell of that ever happening).
Not surprising to hear First Nations want it all
The difference this year with covid and rec fishing pressure being way down Area G got relocated a significant chunk of the WVCI offshore rec quota (something I might add a certain member on here said there would be a zero chance in hell of that ever happening).
Not surprising to hear First Nations want it all
wildmanyeah
Crew Member
They also can fish under a rec licence, they also get fish from inshore fisheries like Conuma Chinook, port alberni sockeye and others.
This isn't about food fish this is about getting a bigger increase to their sale fish. From what i have read in court documents is an issue because their small scale fishery is taken over by the guys that also duel fish also as commercial trollers. So the small boats get screwed over.
This year is an anomaly, next year when the border opens up there won't be excess rec quota. WCVI is thee destination with ECVI and South VI being clobbered by restrictions. So if you were to take quota away from WCVI rec you might as well kiss 2 fish a day good by along with all those nice WCVI duel 300 HP boats i see out from PNT buying fishing gear.
This isn't about food fish this is about getting a bigger increase to their sale fish. From what i have read in court documents is an issue because their small scale fishery is taken over by the guys that also duel fish also as commercial trollers. So the small boats get screwed over.
This year is an anomaly, next year when the border opens up there won't be excess rec quota. WCVI is thee destination with ECVI and South VI being clobbered by restrictions. So if you were to take quota away from WCVI rec you might as well kiss 2 fish a day good by along with all those nice WCVI duel 300 HP boats i see out from PNT buying fishing gear.
Foxsea
Well-Known Member
Gord Johns was poorly informed on this file or he deliberately chose to side with one stakeholder group against another. His remarks around racism were cheap theatrics solely for appeal to a First Nations audience. For the balance of his constituency, he was inflammatory and divisive. Not helpful, Gord.
I'm not seeing where Gord Johns was mistaken. Look it up on CanLii to see how many times DFO was taken to court by FNs over fishing rights and lost and then neglected to implement the judge's decisions and were taken back to court - the
Ahousaht/Nuu-chah-nulth are but a case in point - the exact groups mentioned in the news articles. And the local FNs spend their monies locally, as well - including monies from local fisheries.
One can argue about what user groups Gord Johns should represent or does - or where extra quota should go - but FNs aquatic harvesting rights are a constitutionally-protected (s. 35 of the Constitution Act) right verses an opportunity/privilege. They are holders of Rights & Titles verses a "user group". And then there is "reconciliation" - an admittedly nebulous term. What does that really mean?
Guess we may all find out someday soon...
Ahousaht/Nuu-chah-nulth are but a case in point - the exact groups mentioned in the news articles. And the local FNs spend their monies locally, as well - including monies from local fisheries.
One can argue about what user groups Gord Johns should represent or does - or where extra quota should go - but FNs aquatic harvesting rights are a constitutionally-protected (s. 35 of the Constitution Act) right verses an opportunity/privilege. They are holders of Rights & Titles verses a "user group". And then there is "reconciliation" - an admittedly nebulous term. What does that really mean?
Guess we may all find out someday soon...
wildmanyeah
Crew Member
This went to court last year and they lost O guess this year they don’t want to go to court so this year it’s racist
“August 16, 2019: The five Nations’ application for an injunction against the Minister of Fisheries and Oceans’ decision to reallocate part of the suuhaa (Chinook salmon) total allowable catch from the recreational fishery to the regular commercial fishery without providing any additional access to the Nations is dismissed by the Federal Court. ”
But you are right they do what it all and even perhaps in your words in titled to it
“August 16, 2019: The five Nations’ application for an injunction against the Minister of Fisheries and Oceans’ decision to reallocate part of the suuhaa (Chinook salmon) total allowable catch from the recreational fishery to the regular commercial fishery without providing any additional access to the Nations is dismissed by the Federal Court. ”
But you are right they do what it all and even perhaps in your words in titled to it
Not sure what that means - but here's the court cases and years that went to court:
The Ahousaht Indian Band v. The Attorney General of Canada, 2006 BCSC 166 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=27
The Ahousaht Indian Band et al v. The Attorney General of Canada et al, 2006 BCSC 646 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=46
Ahousaht Indian Band v. AG of Canada, 2007 BCSC 1162 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=34
Ahousaht First Nation v. Canada (Fisheries and Oceans), 2007 FC 567 (CanLII)
https://www.canlii.org/en/ca/fct/do...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=47
Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212 (CanLII)
https://www.canlii.org/en/ca/fca/do...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=32
The Ahousaht, Ehattesaht, v. The Attorney General of Canada, 2009 BCSC 1706 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=23
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=18
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2010 BCSC 1552 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=14
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 425 (CanLII)
https://www.canlii.org/en/bc/bcca/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=21
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 237 (CanLII)
https://www.canlii.org/en/bc/bcca/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=36
Ahousaht Indian Band v. Canada (Attorney General), 2012 BCCA 404 (CanLII)
https://www.canlii.org/en/bc/bcca/d...haHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=9
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2012 BCCA 330 (CanLII)
https://www.canlii.org/en/bc/bcca/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=10
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300 (CanLII)
https://www.canlii.org/en/bc/bcca/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=25
Ahousaht First Nation v. Canada (Fisheries and Oceans), 2015 FC 253 (CanLII)
https://www.canlii.org/en/ca/fct/do...haHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=2
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2015 BCSC 2418 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=31
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2015 BCSC 2313 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...haHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=6
Ahousaht Indian Band and Nation v Canada (Attorney General), 2018 BCSC 633 (CanLII)
https://www.canlii.org/en/bc/bcsc/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=33
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCCA 445 (CanLII)
https://www.canlii.org/en/bc/bcca/d...haHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=4
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCCA 413 (CanLII)
https://www.canlii.org/en/bc/bcca/d...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=15
Ahousaht First Nation v. Her Majesty The Queen In Right Of Canada, 2019 SCTC 1 (CanLII)
https://www.canlii.org/en/ca/sct/do...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=12
Ahousaht First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2019 FC 1116 (CanLII)
https://www.canlii.org/en/ca/fct/do...aHQgZmlzaGluZyByaWdodHMAAAAAAQ&resultIndex=19
wildmanyeah
Crew Member
We are talking about the reallocation from leftover rec quota on the offshore WCVI fishery to the area G commercial trollers (what the OP post about). They took it to court last year and it was dismissed.
Yes they won the supreme court and won a small scale fishery no ones disputing that and there has been many threads on that topic. This is now about that small scale fishery wanting more quota(or a piece of the leftover rec quota). The other issue at play is some of their members are also commercial fishermen with commercial vessels. So when they go out and fish in the small scale first nation sale fishery it leaves nothing left for the members with small boats.
"
[140]By allowing vessels equipped with regular commercial salmon troll gear to harvest the vast majority of their AABM Chinook allocation over a short period of time, the Five Nations have effectively limited the allocation available to provide an opportunity for those fishers participating in the rights-based fishery using smaller vessels that have lower catching power. The concentration of fishing efforts in a small number of large industrial participants who have caught the majority of the allocation does not appear to be in compliance with the constitutionally-protected Aboriginal Rights invoked by the Five Nations, as these were defined in the Humphries Judgment.
[141]A party knocking on the Court’s door to obtain the issuance of an extraordinary, exceptional injunctive remedy based on an asserted right must not be seen as acting in a manner that is contrary to the right they are asking the Court to allow and implement (and in this case, expand). I agree with the Minister and SFI that this evidence works against the notion of a rights-based fishery providing an opportunity for wide community participation by fishers using smaller vessels to harvest more fish over a longer fishing season, and this does not tilt the balance in favour of granting an injunctive relief seeking an increase in the allocation of AABM Chinook."
Yes they won the supreme court and won a small scale fishery no ones disputing that and there has been many threads on that topic. This is now about that small scale fishery wanting more quota(or a piece of the leftover rec quota). The other issue at play is some of their members are also commercial fishermen with commercial vessels. So when they go out and fish in the small scale first nation sale fishery it leaves nothing left for the members with small boats.
"
[140]By allowing vessels equipped with regular commercial salmon troll gear to harvest the vast majority of their AABM Chinook allocation over a short period of time, the Five Nations have effectively limited the allocation available to provide an opportunity for those fishers participating in the rights-based fishery using smaller vessels that have lower catching power. The concentration of fishing efforts in a small number of large industrial participants who have caught the majority of the allocation does not appear to be in compliance with the constitutionally-protected Aboriginal Rights invoked by the Five Nations, as these were defined in the Humphries Judgment.
[141]A party knocking on the Court’s door to obtain the issuance of an extraordinary, exceptional injunctive remedy based on an asserted right must not be seen as acting in a manner that is contrary to the right they are asking the Court to allow and implement (and in this case, expand). I agree with the Minister and SFI that this evidence works against the notion of a rights-based fishery providing an opportunity for wide community participation by fishers using smaller vessels to harvest more fish over a longer fishing season, and this does not tilt the balance in favour of granting an injunctive relief seeking an increase in the allocation of AABM Chinook."
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wildmanyeah
Crew Member
[142]In my view, these various elements outweigh the risk of harm to the Five Nations and their Aboriginal Rights in the absence of an injunction.
[143]As stated above, the Five Nations have not demonstrated that they will suffer irreparable harm if the injunctive relief they are seeking is denied. I am mindful that the Five Nations’ ancestors were fishing peoples who depended on fisheries resources to sustain themselves, and that the regular trade of significant quantities of the diverse fisheries resource in their territories was a prominent feature of their society and integral to their distinctive culture (Ahousaht 2009 at paras 281-2, 439-40, 485). The Aboriginal Rights granted to the Five Nations recognized this right to harvest and sell various species of fish commercially. But this constitutionally-protected right is in relation to a multi-species fishery, not to specific allocations of AABM Chinook. It is not a right to harvest and sell specific quantities of AABM Chinook.
[144]To reiterate, a fundamental problem with the Five Nations’ injunction motion is that the constitutionally-protected Aboriginal Rights they are invoking in support of their application for judicial review do not, as defined in the Humphries Judgment, extend to the more dissected right that they are seeking to exercise through the interlocutory injunctive relief they ask from the Court.
[145]It is true that the Five Nations have an allocation priority for AABM Chinook, and the evidence indeed shows that this has been specifically recognized by the Minister in the new method of allocation put in place with the Fishery Management Plan. Contrary to what the Five Nations submit and argue, the Minister did not modify this method of allocation for AABM Chinook in July 2019. No new quantities of fish became “available” at that point in time, and the Minister did not grant a request for more AABM Chinook to the commercial Area G sector. The fluctuation that occurred in the relative quantities given to the recreational and commercial fishers is simply a reflection of the new method of allocation at work.
[146]The Five Nations raise the issue of the public interest in reconciliation, and I agree that the reconciliation of the rights and culture of Indigenous peoples with the interests of and sovereignty of Canada is of fundamental importance to all Canadians. There is significant public interest in reconciliation and in giving recognition to the SCC’s emphasis on consultation and accommodation (Ahousaht 2014 at paras 30-32). It is very much in the public interest that Canada upholds its duty to consult and accommodate the Five Nations’ Aboriginal Rights in managing the fisheries, and this certainly needs to be taken into account in assessing the balance of convenience.
[147]However, the Aboriginal Rights we are talking about are a right to commercial fishing, and it is a multi-species right. There is no evidence allowing me to conclude that the Minister’s decision to decline an additional allocation of 5,000 AABM Chinook is acting contrary to Canada’s fiduciary obligations with respect to the Five Nations. As indicated above, the process of consultation and accommodation is complex, and I am satisfied that it has been a meaningful one so far and that it is continuing. I am also not convinced that the “minimal impairment” argument put forward by the Five Nations modifies the balance of convenience in this case. The Aboriginal Rights of the Five Nations are economic, commercial rights, and there can be allocations provided by DFO to other users that do not infringe these rights.
[148]In the end, the protection of the integrity of the process contemplated in the Fisheries Act, the public interest, the preservation of the status quo, the other interests affected and the conduct of the Five Nations in the exercise of their Aboriginal Rights tilt the balance of convenience in favour of the Minister, not the Five Nations. This is especially true in a context where, conversely, the Five Nations’ alleged harm resulting from a denial of the injunction is not supported by sufficiently convincing evidence and is speculative. In those circumstances, when the harm expected to be suffered by the Five Nations in the absence of the injunction is compared to the harm expected to be caused to the Minister, the public interest and other interested parties by the injunction, there is no doubt in my view that the balance of convenience does not favour granting the interlocutory injunction sought by the Five Nations. The third element of the RJR-MacDonald test is accordingly not satisfied either.
[149]Given that I find that the balance of convenience favours the Minister in not granting the interlocutory relief, I need not consider the issue of an undertaking as to damages.
[143]As stated above, the Five Nations have not demonstrated that they will suffer irreparable harm if the injunctive relief they are seeking is denied. I am mindful that the Five Nations’ ancestors were fishing peoples who depended on fisheries resources to sustain themselves, and that the regular trade of significant quantities of the diverse fisheries resource in their territories was a prominent feature of their society and integral to their distinctive culture (Ahousaht 2009 at paras 281-2, 439-40, 485). The Aboriginal Rights granted to the Five Nations recognized this right to harvest and sell various species of fish commercially. But this constitutionally-protected right is in relation to a multi-species fishery, not to specific allocations of AABM Chinook. It is not a right to harvest and sell specific quantities of AABM Chinook.
[144]To reiterate, a fundamental problem with the Five Nations’ injunction motion is that the constitutionally-protected Aboriginal Rights they are invoking in support of their application for judicial review do not, as defined in the Humphries Judgment, extend to the more dissected right that they are seeking to exercise through the interlocutory injunctive relief they ask from the Court.
[145]It is true that the Five Nations have an allocation priority for AABM Chinook, and the evidence indeed shows that this has been specifically recognized by the Minister in the new method of allocation put in place with the Fishery Management Plan. Contrary to what the Five Nations submit and argue, the Minister did not modify this method of allocation for AABM Chinook in July 2019. No new quantities of fish became “available” at that point in time, and the Minister did not grant a request for more AABM Chinook to the commercial Area G sector. The fluctuation that occurred in the relative quantities given to the recreational and commercial fishers is simply a reflection of the new method of allocation at work.
[146]The Five Nations raise the issue of the public interest in reconciliation, and I agree that the reconciliation of the rights and culture of Indigenous peoples with the interests of and sovereignty of Canada is of fundamental importance to all Canadians. There is significant public interest in reconciliation and in giving recognition to the SCC’s emphasis on consultation and accommodation (Ahousaht 2014 at paras 30-32). It is very much in the public interest that Canada upholds its duty to consult and accommodate the Five Nations’ Aboriginal Rights in managing the fisheries, and this certainly needs to be taken into account in assessing the balance of convenience.
[147]However, the Aboriginal Rights we are talking about are a right to commercial fishing, and it is a multi-species right. There is no evidence allowing me to conclude that the Minister’s decision to decline an additional allocation of 5,000 AABM Chinook is acting contrary to Canada’s fiduciary obligations with respect to the Five Nations. As indicated above, the process of consultation and accommodation is complex, and I am satisfied that it has been a meaningful one so far and that it is continuing. I am also not convinced that the “minimal impairment” argument put forward by the Five Nations modifies the balance of convenience in this case. The Aboriginal Rights of the Five Nations are economic, commercial rights, and there can be allocations provided by DFO to other users that do not infringe these rights.
[148]In the end, the protection of the integrity of the process contemplated in the Fisheries Act, the public interest, the preservation of the status quo, the other interests affected and the conduct of the Five Nations in the exercise of their Aboriginal Rights tilt the balance of convenience in favour of the Minister, not the Five Nations. This is especially true in a context where, conversely, the Five Nations’ alleged harm resulting from a denial of the injunction is not supported by sufficiently convincing evidence and is speculative. In those circumstances, when the harm expected to be suffered by the Five Nations in the absence of the injunction is compared to the harm expected to be caused to the Minister, the public interest and other interested parties by the injunction, there is no doubt in my view that the balance of convenience does not favour granting the interlocutory injunction sought by the Five Nations. The third element of the RJR-MacDonald test is accordingly not satisfied either.
[149]Given that I find that the balance of convenience favours the Minister in not granting the interlocutory relief, I need not consider the issue of an undertaking as to damages.
wildmanyeah
Crew Member
They lost not to mention it sounds like it must of been expensive... so this year they took it to the media and called it racism.
IV. Conclusion
[155]For all the above-mentioned reasons, I find that the Five Nations have not met the conjunctive tripartite test articulated in RJR-MacDonald to justify the granting of the interlocutory injunction they are seeking. On the basis of the evidence before me, I find that they have not provided clear, compelling and non-speculative evidence of irreparable harm, and that the balance of convenience does not favour granting the injunctive relief they are seeking. In addition, the key remedy they want to obtain is an order of mandamus, for which they do not meet the well-established requirements.
[156]Having considered the evidence, the nature and attributes of the relief sought, the absence of non-speculative irreparable harm, the broader public interest considerations regarding the Minister’s mandate and authority, the various competing interests at stake and the complexities of the allocations setting process in dispute, I also conclude that it would not be just and equitable, in the circumstances of this case, to grant the injunctive relief sought by the Five Nations. There are no exceptional circumstances justifying the exercise of my discretion in the Applicants’ favour.
[157]The Minister is entitled to his costs.
IV. Conclusion
[155]For all the above-mentioned reasons, I find that the Five Nations have not met the conjunctive tripartite test articulated in RJR-MacDonald to justify the granting of the interlocutory injunction they are seeking. On the basis of the evidence before me, I find that they have not provided clear, compelling and non-speculative evidence of irreparable harm, and that the balance of convenience does not favour granting the injunctive relief they are seeking. In addition, the key remedy they want to obtain is an order of mandamus, for which they do not meet the well-established requirements.
[156]Having considered the evidence, the nature and attributes of the relief sought, the absence of non-speculative irreparable harm, the broader public interest considerations regarding the Minister’s mandate and authority, the various competing interests at stake and the complexities of the allocations setting process in dispute, I also conclude that it would not be just and equitable, in the circumstances of this case, to grant the injunctive relief sought by the Five Nations. There are no exceptional circumstances justifying the exercise of my discretion in the Applicants’ favour.
[157]The Minister is entitled to his costs.
Foxsea
Well-Known Member
Thanks!
So Gord Johns amplifies the empty rhetoric around the F.N. cries of "systemic racism" and conveniently ignores the reality of a court decision. Disingenuous at the least, Gord. You are a politician but you certainly aren't a diplomat.
An article from a couple of years ago but a similar theme concerning steelhead welfare:
http://steelheadvoices.com/?p=1100
So Gord Johns amplifies the empty rhetoric around the F.N. cries of "systemic racism" and conveniently ignores the reality of a court decision. Disingenuous at the least, Gord. You are a politician but you certainly aren't a diplomat.
An article from a couple of years ago but a similar theme concerning steelhead welfare:
http://steelheadvoices.com/?p=1100
disco
Well-Known Member
Too bad people who love to sport fish still vote for this virtue signalling hypocrite. Most are too busy watching Wheel of Fortune to get informed on what their elected politicians are doing to them.
Foxsea
Well-Known Member
I hope he isn't expecting the F.N. vote is enough to get him in again. Although there are also the usual idiots thanking FN's for the privilege of occupying "their" land. As they say, politicians are like diapers.
You can't do whatever you want outside of your territory, but you definitely aren't obligated to purchase a license for Salt or Freshwater. They state quite plainly in the regs that as a holder of a Certificate of Indian Status, that is your license to sportfish.
I commend you for purchasing licenses and supporting the fisheries though. As a recent father of little ones whom is making a meager income off carving, I certainly try to pinch every penny I can, and just carry my status with me when I go fishing.
I've been thinking of giving back in some way however... whether its some kind of hatchery volunteer work, habitat cleanup/restoration, or something else of the sort. I definitely want there to be some hope in future of fisheries for my little ones, their eventual little ones, etc.
IronNoggin
Well-Known Member
In the background to that case, it was clearly shown that:
- The fishery was designed with specific intent to support small scale fishers (mosquito fleet). That has been completely superseded by full sized commercial trollers.
- The trollers in question have repeatedly violated area restrictions for their efforts. Ongoing today.
- The trollers in question have repeatedly violated quota restrictions. Ongoing today.
This was nothing but an attempt to grab more for a racially segregated fishery already spun out of control.
Gord Johns should be taken to task for his grandstanding in this matter. Something I intend fully to address with him now that I am back off the Big Pond.
Nog
fish4all
Well-Known Member
Gord johns is an absolute waste of skin and a useless politician.
fish4all
Well-Known Member
Well said.
fish4all
Well-Known Member
Let us know how that goes.
searun
Well-Known Member
Yes, 100% correct from what I have observed on the water for the most part. One point of clarification is the Maa-Nulth are not restricted to the 9 mile corridor as they have signed a Treaty without those restrictions. The other issue has been the 5 Nations in their Fishery Plan have not been transparent with respect to catch data etc. We need all parties who are contributing to review, and discussion of the Fishing Plan to have access to reliable catch data etc. Still awaiting that data, and trying to encourage open dialogue and input into the 5 Nations Fishery Plan for the upcoming season.
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