DFO Lacks Mandate Despite Court Direction

Despite their recent victory in the B.C. Court of Appeal, five Nuu-chah-nulth Nations are still struggling to engage Canada in negotiations regarding an aboriginal commercial fishery. The Appeal Court decision, delivered in May of 2011, affirmed the rights of the Nations to fish and sell fish commercially. It also affirmed the need for Canada and Nuu-chah-nulth to negotiate how these fisheries could work, extending the negotiation period from the original court decision to May 2012.

“What we’re hearing and seeing is that DFO has no mandate to negotiate with Nuu-chah-nulth Nations towards a rights-based fishery,” said NTC President, Cliff Atleo. “Instead they are boxing people back into the industrial fishing model, which the court has deemed unacceptable.”

Underway since last year, the meetings between the five Nations (also known as the T’aaq-wiihak Nations) and federal representatives have never involved negotiations. Instead, the Department of Fisheries and Oceans (DFO) presented Nuu-chah-nulth with an offer and refused to respond to the Nations’ counter offer. Furthermore, DFO refuses to negotiate on the terms of fishery allocation.

“They offered the use of existing commercial licenses to access fish in the interim, but the court already ruled that the existing model of commercial fisheries does not provide Nuu-chah-nulth with a meaningful opportunity to fish,” Atleo said. “When we saw the package, quantity-wise, it was obvious that it was insufficient to support the Nations in any way.”

Still, Nuu-chah-nulth technical advisors worked out creative ways to test drive aspects of a proposed rights-based fishery as contemplated by the court. Despite this, DFO has been unwilling to consider any methodology adjustments, even though these methods come from existing DFO policy.

“Basically, DFO is using this package to further entrench Nuu-chah-nulth into industrial model fisheries, which the court said was not acceptable and numerous scientific studies show is not environmentally sustainable,” Atleo said. “It appears as if they have no intention of developing a sustainable fishery that is ecologically sensitive and that supports First Nations and non-First Nations coastal communities.”

To say that the T’aaq-wiihak Nations are frustrated is an understatement. Says Atleo, “It’s very disappointing to see how DFO, who is meant to manage fisheries resources in a way that ensures sustainable long-term access and that protects constitutional fishing rights, cannot think creatively to make fishing more environmentally sensitive and supporting of the coastal communities who depend on those resources, and who have aboriginal rights to access it.”

One of the Nations’ concerns is the lack of opportunity to test drive aspects of a long-term aboriginal commercial fishery through an interim fishery. At the outset of the talks, Sue Farlinger, Regional Director General of DFO, indicated this would take place.

Instead T’aaq-wiihak Nations have only more of the same to consider—which is why they went to court in the first place.

“We tried to be flexible—to get as many people out on the water as possible by proposing the mosquito fleets,” said Andrew Jackson, referring to the small boat fisheries Nuu-chah-nulth fishermen once favoured. Jackson is the fisheries manager for Tla-o-qui-aht First Nation, and sits on the T’aaq-wiihak negotiation team. “We’re not asking for a great number of boats. Maybe five or six [per Nation].”

Other Nations agreed, but got nowhere with their suggestions for a smaller, artisinal style fishing fleet. “We have very frustrated fishers—guys who are unemployed and want to get out on the water,” Jackson said. “Nobody wants to get rich, but they want to make an honest living.”

Those desires have been thwarted again—first due to the federal election, which stalled talks completely during a critical time, and second because of DFO’s refusal to consider anything but the status quo.

“As much as we’re disappointed, we’d be crazy to reject anything they’re offering.  Right now Tla-o-qui-aht doesn’t have anyone fishing, and this might get a few people on the water,” Jackson said.

Together the five Nations are moving ahead with the limited fishing opportunities while acknowledging that negotiations for a long-term fishery have yet to take place. If negotiations don’t conclude satisfactorily by the court-imposed deadline, Nuu-chah-nulth Nations have the right to return to court.

“We’re letting people know that although there will some fishing, it’s not at all what we’ve been fighting for,” Atleo said.

On May 18, 2011, the B.C. Court of Appeal unanimously affirmed the right of five Nuu-chah-nulth First Nations to harvest and sell any species of fish in their territories (with the exception of geoduck clams). The Court of Appeal affirmed an earlier decision of the B.C. Supreme Court recognizing the Nuu-chah-nulth as having these rights, based on the central importance of fishing and trading fish throughout history. The court also directed Canada (through the Department of Fisheries and Oceans) to negotiate with the Nations towards a rights-based fishery and imposed a timeline of two years. To date, no negotiations have taken place.


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