cohochinook
Well-Known Member
Tsawwassen Final Agreement
An Initial Assessment
Bill Otway
First and foremost for fish and wildlife management there is no certainty in this document so the continuing claim by the politicians that the Treaty brings about “certainty” is nothing more than propaganda of the worst kind.
Another key point we all need to keep in mind when listening to the propaganda of our Premier, Prime Minister, both Ministers of Aboriginal Affairs and Fisheries Minister regarding what a good deal this treaty is, is the fact that all of us commenting have actually read the document. None of the politicians have!
There is much concern over the removal of a large tract of land from the Agricultural Land designation and we should all be concerned over this. Aside from the chicanery involved in this process; throughout negotiations both governments promised that any removal of land from the Agricultural Land Reserve would have to go through the normal application and approval process. They lied again!
The second concern we, as conservationists and anglers should have is to recognize that this land removal is primarily being done to aid in the expansion of the coal and container port in the Fraser River estuary. This means more estuary area lost and a continuing reduction in our salmon and other critical salt water fish populations. But we must keep in mind that Campbell and his government did promise to give us the best managed fisheries in the world, bar none. The minor detail of the fact that this management would take place on ever reducing fish stocks was of course not transmitted to us.
A lot of the key information with regard to fish and wildlife are contained in the Appendices, particularly Appendix J.
From the Treaty Document itself:
General Fisheries Section on Food Societal and Ceremonial Fisheries:
As with every other section the one important factor missing here is the failure of the governments to provide maps of just what areas are in fact the Tsawwassen fisheries and aquatic plant harvest areas. The copies of the documents provided on line indicate that maps are there but they are in fact not there. So there remains the uncertainty of just what areas are impacted. Most certainly the claims area covers a large part of the Gulf Islands and the Fraser River, Pitt River and Pitt Lake. So if these are in fact the harvest areas, there can and will be some real complications here.
The question begs itself however, if this is such a good deal, why are the governments hiding critical material.
A further point is the current claim of a Band membership of 358 members. The official registry of Indian Affairs for 2002 shows a total Band population of 222 of which 75 were living off reserve. This is obviously a very productive Band, growing by 60% plus in 4 years. These numbers become critical when you look at the impact of the various allocations.
1 – Item 2 – This is a key section in that it sets out that the authority of both the Provincial and Federal Fisheries ministers to constrain or restrict the Tsawwassen “right to fish”, can only be exercised under circumstances dealing with the conservation of the species, and or if there are concerns for “public health or public safety”.
2 – Item 4 – The right to barter fish is not restricted to first nations in B.C. but to any first nations group or individual in Canada. Tracking this kind of open ended right to ensure we are not seeing black market sales as the end game is beyond the capability of current enforcement staff and there is no indication that either government has any plans to add to or upgrade this capability.
3 – Section 6 speaks of the Tsawwassen Fishing Area. We need to see specific maps of this and also with regard the harvest of bivalves, it must be recognized that the foreshore from Sechelt to the U.S. border is currently closed to the harvest of bivalves due to pollution contamination. I see a very clear possibility of future litigation based on the fact that governments are infringing on a Treaty right to harvest bivalves due to their allowing the food source to be contaminated and thereby restricting the aboriginal right.
4 – Item 14 – This is one section that the political people will point out as providing or maintaining the authority of the Minister. The simple fact is that this section makes it clear that the authority of the Minister must be “consistent with the terms of the Treaty”. This takes us back to Item 2, i.e. he can only constrain the right for reasons of conservation, public health or public safety.
5 – Items 15 and 16 – Sets out the fact that vessels and or other individuals not owned by or members of the Tsawwassen First Nation may harvest fish and aquatic plants under the Tsawwassen Treaty Rights. This becomes a critical issue when you deal with such things as crabs.
NO CERTAINTY HERE:
6 – Item 20 – Attempts to indicate that the Treaty does not alter Federal or Provincial Law in suspect of property in fish or aquatic plants. Like it or not, this factor remains constrained by Item 2 – signed and agreed to by both governments.
6 – Item 22 – Sets out a requirement for the provision of catch data as required by Federal or Provincial Law. This is one section that has merit.
7 – Item 30 – Sets out the fact that there will be no adjustments for overages or underages for species managed by the Provincial Government. As the Provincial Government has not provided nor tried to provide any specific allocation for fish or aquatic plants, there of course can be no underage or overage. The Tsawwassen Band may set any limits and seasons it so desires and the Provincial Minister can only change these for reasons of “conservation, public health or public safety”.
NO CERTAINTY HERE:
8 – Item 31 – Sets out the allocation of crabs for FSC purposes. This allocation is set out as 50 crab traps per vessel. No actual numbers of animals, just 50 traps per vessel. As noted in sections 15 and 16, the Band can authorize any vessel or person to carry out this harvest. This essentially means there is no restriction of the overall number of traps that may be set out, nor any size limit or season for such a harvest. An actual number limit on crab harvest will be set after 12 years based on the landings achieved over that 12 year period. (sec 35). NB – Currently – October 2007 the Tsawwassen are claiming they are harvesting 9,000 plus crabs each year, up from some 8,000 a year ago. There is no verification of this number, just what the Band reported.
9 – Item 32 – On any species not having an identified harvest quota or limit at the time of finalization of the Treaty, any limit will be established by the Tsawwassen Band. Any such limits or plans, will of course be subject to the authority of the Minister regarding issues of conservation and or public health or safety. Either party may request a limit or designated quota for any such species at any time. Should such a request be made, the first point will be that the baseline harvest will be set based on the harvest in the 10 years prior to the time of the request for such a quota. If the parties cannot agree to numbers then the issue will be sent to arbitration. If, after arbitration they still cannot reach an agreement on the recommendations of the arbitrator, then the quota will be set at 1.25 times the baseline number (sec 35,47)
The Treaty is designed to allow for future fishing to provide for history.
THE CERTAINTY HERE IS THAT THE NATIVE ALLOCATION WILL GO UP AND UP AND THE OPPORTUNITY FOR THE “OTHER” CANADIANS WILL GO DOWN AND DOWN.
10 – Item 55 – Allows the Tsawwassen Band to designate individuals other than Band members to harvest their FSC and to designate vessels, not necessarily vessels of Band members, to harvest as well. As there is no limit on the number of vessels they can designate this leaves the opportunity for a wide open crab fishery with no limits on total number of traps used and no limits on the total harvest, seasons, bag limits, size limits etc. These issues will be totally at the control of the Tsawwassen Band. The only way the Minister can interfere is if he or she can show a “conservation issue” or a “public health or safety issue.” Simply put our governments have severely fettered the management authority of the ministers responsible for fisheries, a publicly owned resource.
11 – Item 59 – This section deals with the harvest of fish under provincial jurisdiction and is a bit confusing. Basically however, the Band will establish their Harvest Plan and the Provincial Minister will approve it or change it. Again the powers of any such minister are limited to those covering conservation, public health and public safety.
Previous drafts of the Treaty made reference to no harvest of Steelhead but that is missing from this final document, so the door is wide open as the Provincial Government will not move to indicate that there is a conservation problem with Steelhead. At least they have refused to do so up until now and I see no indication that they plan to change this position. The fact that they have ignored these fish in this treaty is a further indication they have no intention of changing their current position in this matter. In addition to all the trout species we also have to recognize that this section covers White Sturgeon which were recently rejected for listing as an “endangered species”. This status could in fact quickly change without government ability to manage these fish throughout the river. Under this Treaty and we can be sure in future Treaties, this power will be lost.
ECONOMIC FISHERIES:
Section 102 – This section sets out the fact that there will be established a “Harvest Agreement” between the Federal and Provincial Governments and the Tsawwassen Band to provide for a commercial fishery. No details are provided on what and how this Harvest Agreement will be and operate. According to the Treaty, this is an issue to be negotiated later by the parties.
ONCE MORE NO CERTAINTY HERE:
While the Treaty document does not give any details, previous indications from the governments were to the affect that these agreements would assign a portion of the annual commercial catch to the specific Band in perpetuity. Remember this allocation is not for FSC but for a commercial harvest. There is no precedence in law for this type of allocation and in fact our legal advisors make it clear that the governments do not have the authority to make such an allocation.
Another point the governments are trying to smoke us on is that these commercial harvesting rights are not part of the Treaty and so do not assign any Section 35 rights to the First Nations regarding commercial harvest. WRONG!
The commitment to develop and incorporate a Harvest Agreement for commercial harvest, exclusive to the Tsawwassen Band is part and parcel of the Treaty document. The fact that the actual Harvest Agreement is a separate document does not change the fact that the requirement for government to provide for such an agreement and a commercial harvest, is part of the Treaty and must be honored as a right under section 35 of our constitution.
SPECIFIC ALLOCATIONS:
It should be noted that these are all allocations for FSC harvest. And these are the only species for which the Treaty makes any specific allocations. I have used a TAC of 3 million for the Sockeye numbers and all weights are dressed weights. While some may quarrel with the 3 million TAC, particularly in light of recent harvest numbers, it must be remembered that in recent years harvest has had no relation to TAC. In most years, a run size of 5 million would provide a TAC of 3 million.
Basic Allocation formula:
Sockeye – Canadian TAC 500,000 or less, 1% of TAC.
When TAC 3 million or less, 5,000 fish plus 0.40904% of TAC that is greater than 500,000 and less than 3 million.
Chum – 2.58% of the Fraser River Terminal Run surplus of Chum salmon to a maximum of 2,576 fish.
Pink Salmon – A maximum of 2,500 fish caught incidentally when fishing for other species.
Chinook Salmon – By the development of a complicated formula, a percentage of the abundance that produces and annual catch of 625 Fraser Chinook salmon based on Fraser River Chinook Salmon returns over 1982 to 2004.
Coho Salmon – 500 fish.
My tabulations as follows:
Sockeye – 15, 226 fish ave. 5 lbs 76,130 lbs
Chum - 2,576 fish ave 10 lbs 25,760 lbs
Pink - 2,500 fish ave 4 lbs 10,000 lbs
Chinook - 625 fish ave 15 lbs 9,375 lbs
Coho - 500 fish ave 8 lbs 4,000 lbs
------------------ --------------
Total 21,427 fish 125,265 lbs
Taking the 2002 census number of Band members, (222) this comes to 564 lbs of fish for every man woman and child in the Band.
Taking the generally accepted recent number of 270 members produces an annual allocation of 464 lbs of salmon for every man woman and child in the Band. When you add 13,500 lbs of crabs, (ave 1.5lbs) you now get 515 lbs of salmon and crabs for every man woman and child in this Band, or 1.4 lbs of fish every day, 365 days of the year for every man woman and child in the Band. .
Taking the current claimed membership of 358 members we still end up with an annual total of 350 lbs of salmon for every man woman and child in the Band. When you add in the 13,500 lbs of Crabs you get 390lbs of seafood for every man woman and child in the Band.
This amount is only for Fraser River Salmon. We must then add on the unlimited number of crabs they are allowed to harvest. They will also set their own seasons and number of harvest for Lingcod, Rockfish, Prawns, Shrimp, Trout, Sturgeon as well as bivalves.
Then of course there is whatever numbers of wildlife and migratory birds they might decide to harvest.
The Supreme Court of Canada in Sparrow established that the FSC right should be based on need not greed. It would seem our provincial and federal governments are more familiar with the latter than the former.
WILDLIFE SECTION:
In general, and I must assume in recognition of the limited opportunity to hunt, these section is somewhat innocuous. That said however, it is clear again in this section that the power of the Minister to manage wildlife is fettered by being restricted to those species and or instances where there is a conservation concern and or public health, public safety issues. (Sect 2).
1 – Sect 3 – Trade and barter is allowed but is restricted to members of First Nations resident in B.C.
2 – Sect 9 – There is to be one time $50,000 compensation for the limited opportunity to hunt and the probable future loss of this opportunity. The money is to be used to create a wildlife fund.
3 – Sec. 14 – The harvest of wildlife on or within Burns Bog ecological conservancy area is only allowed by the Federal, Provincial or local government laws.
4 – Sec 15 – This is the clause that is intended to show the minister retains the authority to manage but they will not tell you it is subject to the overall agreement which limits the power of the Minister as noted in Sec. 2.
5 – Sect 20 (e) – Establishes that wildlife parts may be transported by an undocumented First Nations citizen or by a trading partner who is not a First Nations citizen.
6 – Sect 21 – Establishes that Tsawwassen laws made under section 20 are superior to Federal or Provincial Law.
7 – Section 30 – Total Allowable Harvest - Deals with the establishment of “designated” species. If a species is designated then the Minister may propose that there be a specific number harvested by the Tsawwassen citizens.
N.B. A ‘designated” species is described as a species of wildlife where there is a “Total Allowable Harvest”. This would imply that where a species of wildlife are not “designated” that there is no total allowable harvest, in fact no limit at all to the overall harvest. I had the distinct displeasure of a provincial negotiator telling just this very fact at one of the Nanaimo meetings.
This is a false assumption and we must work to get it changed to the reality of wildlife management. Otherwise kiss your hunting goodbye.
8 – There are no “designated” species in this Treaty so all wildlife will be harvested in a time and manner and amount to be decided by the Tsawwassen Band, subject of course to the Ministers’ ability to curtail this for “conservation, public health or public safety” issues
MIGRATORY BIRDS:
As with provincial wildlife, there are no designated species here although the Minister can designate for reasons of conservation. Ergo, no limits, no season, hunting controlled by the Tsawwassen Band totally. This allows for a 12 month 24 hour a day hunt which is direct contravention of the Migratory Birds Convention Act and Treaty Canada has signed between Canada, the U.S. and Mexico.
1 – Section 2 – Again sets out the limits of the Minister and Governments Authority which is action dealing only with matters of conservation, public health and public safety.
2 – Sect 4 – Allows for trade and barter anywhere in Canada. ( These differences will make for interesting times and are a clear indication that Canada and B.C. could not get together on this. For B.C. managed species trade and barter only in B.C. but for Federal managed species, trade and barter anywhere in Canada. )
3 – Section 5 – Allows for the sale of inedible parts of migratory birds. Such a trade is currently banned under the Migratory Birds Convention Act through the terms of the Migratory Birds Convention Act with the U.S. and Mexico. This could be an interesting thing to watch, to see how this government intends to work their way around and out of an international commitment and Treaty.
Bill Otway, updated October 24, 2007
An Initial Assessment
Bill Otway
First and foremost for fish and wildlife management there is no certainty in this document so the continuing claim by the politicians that the Treaty brings about “certainty” is nothing more than propaganda of the worst kind.
Another key point we all need to keep in mind when listening to the propaganda of our Premier, Prime Minister, both Ministers of Aboriginal Affairs and Fisheries Minister regarding what a good deal this treaty is, is the fact that all of us commenting have actually read the document. None of the politicians have!
There is much concern over the removal of a large tract of land from the Agricultural Land designation and we should all be concerned over this. Aside from the chicanery involved in this process; throughout negotiations both governments promised that any removal of land from the Agricultural Land Reserve would have to go through the normal application and approval process. They lied again!
The second concern we, as conservationists and anglers should have is to recognize that this land removal is primarily being done to aid in the expansion of the coal and container port in the Fraser River estuary. This means more estuary area lost and a continuing reduction in our salmon and other critical salt water fish populations. But we must keep in mind that Campbell and his government did promise to give us the best managed fisheries in the world, bar none. The minor detail of the fact that this management would take place on ever reducing fish stocks was of course not transmitted to us.
A lot of the key information with regard to fish and wildlife are contained in the Appendices, particularly Appendix J.
From the Treaty Document itself:
General Fisheries Section on Food Societal and Ceremonial Fisheries:
As with every other section the one important factor missing here is the failure of the governments to provide maps of just what areas are in fact the Tsawwassen fisheries and aquatic plant harvest areas. The copies of the documents provided on line indicate that maps are there but they are in fact not there. So there remains the uncertainty of just what areas are impacted. Most certainly the claims area covers a large part of the Gulf Islands and the Fraser River, Pitt River and Pitt Lake. So if these are in fact the harvest areas, there can and will be some real complications here.
The question begs itself however, if this is such a good deal, why are the governments hiding critical material.
A further point is the current claim of a Band membership of 358 members. The official registry of Indian Affairs for 2002 shows a total Band population of 222 of which 75 were living off reserve. This is obviously a very productive Band, growing by 60% plus in 4 years. These numbers become critical when you look at the impact of the various allocations.
1 – Item 2 – This is a key section in that it sets out that the authority of both the Provincial and Federal Fisheries ministers to constrain or restrict the Tsawwassen “right to fish”, can only be exercised under circumstances dealing with the conservation of the species, and or if there are concerns for “public health or public safety”.
2 – Item 4 – The right to barter fish is not restricted to first nations in B.C. but to any first nations group or individual in Canada. Tracking this kind of open ended right to ensure we are not seeing black market sales as the end game is beyond the capability of current enforcement staff and there is no indication that either government has any plans to add to or upgrade this capability.
3 – Section 6 speaks of the Tsawwassen Fishing Area. We need to see specific maps of this and also with regard the harvest of bivalves, it must be recognized that the foreshore from Sechelt to the U.S. border is currently closed to the harvest of bivalves due to pollution contamination. I see a very clear possibility of future litigation based on the fact that governments are infringing on a Treaty right to harvest bivalves due to their allowing the food source to be contaminated and thereby restricting the aboriginal right.
4 – Item 14 – This is one section that the political people will point out as providing or maintaining the authority of the Minister. The simple fact is that this section makes it clear that the authority of the Minister must be “consistent with the terms of the Treaty”. This takes us back to Item 2, i.e. he can only constrain the right for reasons of conservation, public health or public safety.
5 – Items 15 and 16 – Sets out the fact that vessels and or other individuals not owned by or members of the Tsawwassen First Nation may harvest fish and aquatic plants under the Tsawwassen Treaty Rights. This becomes a critical issue when you deal with such things as crabs.
NO CERTAINTY HERE:
6 – Item 20 – Attempts to indicate that the Treaty does not alter Federal or Provincial Law in suspect of property in fish or aquatic plants. Like it or not, this factor remains constrained by Item 2 – signed and agreed to by both governments.
6 – Item 22 – Sets out a requirement for the provision of catch data as required by Federal or Provincial Law. This is one section that has merit.
7 – Item 30 – Sets out the fact that there will be no adjustments for overages or underages for species managed by the Provincial Government. As the Provincial Government has not provided nor tried to provide any specific allocation for fish or aquatic plants, there of course can be no underage or overage. The Tsawwassen Band may set any limits and seasons it so desires and the Provincial Minister can only change these for reasons of “conservation, public health or public safety”.
NO CERTAINTY HERE:
8 – Item 31 – Sets out the allocation of crabs for FSC purposes. This allocation is set out as 50 crab traps per vessel. No actual numbers of animals, just 50 traps per vessel. As noted in sections 15 and 16, the Band can authorize any vessel or person to carry out this harvest. This essentially means there is no restriction of the overall number of traps that may be set out, nor any size limit or season for such a harvest. An actual number limit on crab harvest will be set after 12 years based on the landings achieved over that 12 year period. (sec 35). NB – Currently – October 2007 the Tsawwassen are claiming they are harvesting 9,000 plus crabs each year, up from some 8,000 a year ago. There is no verification of this number, just what the Band reported.
9 – Item 32 – On any species not having an identified harvest quota or limit at the time of finalization of the Treaty, any limit will be established by the Tsawwassen Band. Any such limits or plans, will of course be subject to the authority of the Minister regarding issues of conservation and or public health or safety. Either party may request a limit or designated quota for any such species at any time. Should such a request be made, the first point will be that the baseline harvest will be set based on the harvest in the 10 years prior to the time of the request for such a quota. If the parties cannot agree to numbers then the issue will be sent to arbitration. If, after arbitration they still cannot reach an agreement on the recommendations of the arbitrator, then the quota will be set at 1.25 times the baseline number (sec 35,47)
The Treaty is designed to allow for future fishing to provide for history.
THE CERTAINTY HERE IS THAT THE NATIVE ALLOCATION WILL GO UP AND UP AND THE OPPORTUNITY FOR THE “OTHER” CANADIANS WILL GO DOWN AND DOWN.
10 – Item 55 – Allows the Tsawwassen Band to designate individuals other than Band members to harvest their FSC and to designate vessels, not necessarily vessels of Band members, to harvest as well. As there is no limit on the number of vessels they can designate this leaves the opportunity for a wide open crab fishery with no limits on total number of traps used and no limits on the total harvest, seasons, bag limits, size limits etc. These issues will be totally at the control of the Tsawwassen Band. The only way the Minister can interfere is if he or she can show a “conservation issue” or a “public health or safety issue.” Simply put our governments have severely fettered the management authority of the ministers responsible for fisheries, a publicly owned resource.
11 – Item 59 – This section deals with the harvest of fish under provincial jurisdiction and is a bit confusing. Basically however, the Band will establish their Harvest Plan and the Provincial Minister will approve it or change it. Again the powers of any such minister are limited to those covering conservation, public health and public safety.
Previous drafts of the Treaty made reference to no harvest of Steelhead but that is missing from this final document, so the door is wide open as the Provincial Government will not move to indicate that there is a conservation problem with Steelhead. At least they have refused to do so up until now and I see no indication that they plan to change this position. The fact that they have ignored these fish in this treaty is a further indication they have no intention of changing their current position in this matter. In addition to all the trout species we also have to recognize that this section covers White Sturgeon which were recently rejected for listing as an “endangered species”. This status could in fact quickly change without government ability to manage these fish throughout the river. Under this Treaty and we can be sure in future Treaties, this power will be lost.
ECONOMIC FISHERIES:
Section 102 – This section sets out the fact that there will be established a “Harvest Agreement” between the Federal and Provincial Governments and the Tsawwassen Band to provide for a commercial fishery. No details are provided on what and how this Harvest Agreement will be and operate. According to the Treaty, this is an issue to be negotiated later by the parties.
ONCE MORE NO CERTAINTY HERE:
While the Treaty document does not give any details, previous indications from the governments were to the affect that these agreements would assign a portion of the annual commercial catch to the specific Band in perpetuity. Remember this allocation is not for FSC but for a commercial harvest. There is no precedence in law for this type of allocation and in fact our legal advisors make it clear that the governments do not have the authority to make such an allocation.
Another point the governments are trying to smoke us on is that these commercial harvesting rights are not part of the Treaty and so do not assign any Section 35 rights to the First Nations regarding commercial harvest. WRONG!
The commitment to develop and incorporate a Harvest Agreement for commercial harvest, exclusive to the Tsawwassen Band is part and parcel of the Treaty document. The fact that the actual Harvest Agreement is a separate document does not change the fact that the requirement for government to provide for such an agreement and a commercial harvest, is part of the Treaty and must be honored as a right under section 35 of our constitution.
SPECIFIC ALLOCATIONS:
It should be noted that these are all allocations for FSC harvest. And these are the only species for which the Treaty makes any specific allocations. I have used a TAC of 3 million for the Sockeye numbers and all weights are dressed weights. While some may quarrel with the 3 million TAC, particularly in light of recent harvest numbers, it must be remembered that in recent years harvest has had no relation to TAC. In most years, a run size of 5 million would provide a TAC of 3 million.
Basic Allocation formula:
Sockeye – Canadian TAC 500,000 or less, 1% of TAC.
When TAC 3 million or less, 5,000 fish plus 0.40904% of TAC that is greater than 500,000 and less than 3 million.
Chum – 2.58% of the Fraser River Terminal Run surplus of Chum salmon to a maximum of 2,576 fish.
Pink Salmon – A maximum of 2,500 fish caught incidentally when fishing for other species.
Chinook Salmon – By the development of a complicated formula, a percentage of the abundance that produces and annual catch of 625 Fraser Chinook salmon based on Fraser River Chinook Salmon returns over 1982 to 2004.
Coho Salmon – 500 fish.
My tabulations as follows:
Sockeye – 15, 226 fish ave. 5 lbs 76,130 lbs
Chum - 2,576 fish ave 10 lbs 25,760 lbs
Pink - 2,500 fish ave 4 lbs 10,000 lbs
Chinook - 625 fish ave 15 lbs 9,375 lbs
Coho - 500 fish ave 8 lbs 4,000 lbs
------------------ --------------
Total 21,427 fish 125,265 lbs
Taking the 2002 census number of Band members, (222) this comes to 564 lbs of fish for every man woman and child in the Band.
Taking the generally accepted recent number of 270 members produces an annual allocation of 464 lbs of salmon for every man woman and child in the Band. When you add 13,500 lbs of crabs, (ave 1.5lbs) you now get 515 lbs of salmon and crabs for every man woman and child in this Band, or 1.4 lbs of fish every day, 365 days of the year for every man woman and child in the Band. .
Taking the current claimed membership of 358 members we still end up with an annual total of 350 lbs of salmon for every man woman and child in the Band. When you add in the 13,500 lbs of Crabs you get 390lbs of seafood for every man woman and child in the Band.
This amount is only for Fraser River Salmon. We must then add on the unlimited number of crabs they are allowed to harvest. They will also set their own seasons and number of harvest for Lingcod, Rockfish, Prawns, Shrimp, Trout, Sturgeon as well as bivalves.
Then of course there is whatever numbers of wildlife and migratory birds they might decide to harvest.
The Supreme Court of Canada in Sparrow established that the FSC right should be based on need not greed. It would seem our provincial and federal governments are more familiar with the latter than the former.
WILDLIFE SECTION:
In general, and I must assume in recognition of the limited opportunity to hunt, these section is somewhat innocuous. That said however, it is clear again in this section that the power of the Minister to manage wildlife is fettered by being restricted to those species and or instances where there is a conservation concern and or public health, public safety issues. (Sect 2).
1 – Sect 3 – Trade and barter is allowed but is restricted to members of First Nations resident in B.C.
2 – Sect 9 – There is to be one time $50,000 compensation for the limited opportunity to hunt and the probable future loss of this opportunity. The money is to be used to create a wildlife fund.
3 – Sec. 14 – The harvest of wildlife on or within Burns Bog ecological conservancy area is only allowed by the Federal, Provincial or local government laws.
4 – Sec 15 – This is the clause that is intended to show the minister retains the authority to manage but they will not tell you it is subject to the overall agreement which limits the power of the Minister as noted in Sec. 2.
5 – Sect 20 (e) – Establishes that wildlife parts may be transported by an undocumented First Nations citizen or by a trading partner who is not a First Nations citizen.
6 – Sect 21 – Establishes that Tsawwassen laws made under section 20 are superior to Federal or Provincial Law.
7 – Section 30 – Total Allowable Harvest - Deals with the establishment of “designated” species. If a species is designated then the Minister may propose that there be a specific number harvested by the Tsawwassen citizens.
N.B. A ‘designated” species is described as a species of wildlife where there is a “Total Allowable Harvest”. This would imply that where a species of wildlife are not “designated” that there is no total allowable harvest, in fact no limit at all to the overall harvest. I had the distinct displeasure of a provincial negotiator telling just this very fact at one of the Nanaimo meetings.
This is a false assumption and we must work to get it changed to the reality of wildlife management. Otherwise kiss your hunting goodbye.
8 – There are no “designated” species in this Treaty so all wildlife will be harvested in a time and manner and amount to be decided by the Tsawwassen Band, subject of course to the Ministers’ ability to curtail this for “conservation, public health or public safety” issues
MIGRATORY BIRDS:
As with provincial wildlife, there are no designated species here although the Minister can designate for reasons of conservation. Ergo, no limits, no season, hunting controlled by the Tsawwassen Band totally. This allows for a 12 month 24 hour a day hunt which is direct contravention of the Migratory Birds Convention Act and Treaty Canada has signed between Canada, the U.S. and Mexico.
1 – Section 2 – Again sets out the limits of the Minister and Governments Authority which is action dealing only with matters of conservation, public health and public safety.
2 – Sect 4 – Allows for trade and barter anywhere in Canada. ( These differences will make for interesting times and are a clear indication that Canada and B.C. could not get together on this. For B.C. managed species trade and barter only in B.C. but for Federal managed species, trade and barter anywhere in Canada. )
3 – Section 5 – Allows for the sale of inedible parts of migratory birds. Such a trade is currently banned under the Migratory Birds Convention Act through the terms of the Migratory Birds Convention Act with the U.S. and Mexico. This could be an interesting thing to watch, to see how this government intends to work their way around and out of an international commitment and Treaty.
Bill Otway, updated October 24, 2007
