Tansi Nîtôtemtik,
Photo retrieved from: <https://indigenousfoundations.arts.ubc.ca/aboriginal_fisheries_in_british_columbia/>.
In Canada, most of us are aware that our natural resources are diminishing. This is a necessary effect of both climate change and human overconsumption. Fish are no exception; in fact, fewer natural food sources have been more politically fraught in Canada than the west coast salmon fishery. Conflicts over salmon fishing have resulted in violent altercations, specifically between Indigenous fishers and their non-Indigenous counterparts, who view the fishery as “racialized.” [1] At the same time, Indigenous peoples exercising traditional fishing practices continue to have their rights limited by virtue of the Fisheries Act and its associated regulations. Following this, today’s post looks at the traditional and modern state of the Indigenous salmon fishery, and examines the context of disputes that have arisen.
Indigenous peoples on Canada’s west coast have been salmon fishing for millennia. Indeed, the practice of fishing for salmon is tied to Indigenous peoples’ ceremonial and cultural practices, to family or “house” identities, and to local governance. Traditionally, extended families or house groups held title to the fisheries, and leaders of the house groups served as the “stewards” of the resource. [2] Leaders made decisions about who could fish, how and when the fishing would take place, as well as the number of fish that could be taken. The salmon fishery was collaborative; coexisting or nearby house groups frequently entered into agreements about specific fishing sites. The potlatch functioned as a “monitoring device”, through which house groups that potlatched together would asses each group’s fishing practices. If the flow of wealth from a house group decreased, so did the rank of their Chief. Because rank and prestige were associated with distributing resources, there was little danger that title-holders would retain or hoard resources for their own benefit. [3]
Harvesting methods varied by region, but Indigenous fisheries were generally very productive. Douglas Harris estimates that the Babine, a west coast Indigenous group, caught between 500-600 salmon per day, and caught on average 750,000 salmon per year. [4] Despite this, resource depletion was not generally a concern; house group leaders possessed specific knowledge about the local ecology and never instructed fishers to fish beyond what the ecosystem could replenish.
The imposition of European settlers came with both the introduction of modern canning technology and unprecedented change to the west coast fishery. Canneries expanded “relentlessly” along the west coast, only slowed down by the eventual scarcity of fish and labour. [5] Initially, the canneries coexisted with Indigenous fisheries; house group leaders would regulate the fishery at home, while having a say as to who went to the industrial fisheries. Indigenous women, as well as some children and elderly people, worked in the industrial canneries washing, cutting, and gutting fish; and filling cans at great speed. These women, children, and Elders would work long hours, and were paid for the number of cases they could fill in a day. [6]
The commercial fishery, as well as the imposition of discriminatory policies by the Department of Fisheries and Oceans (“DFO”), lead to the relative destruction of the Indigenous fishery as it once was. Fishing regulations in 1888 restricted Indigenous fisheries to a food component only, meaning that the sale, trade, and barter of fish was banned. The regulations also banned the ceremonial use of fish and traditional practices such as the potlatch. Eventually, the DFO required a license even to fish for food independent of the industrial cannery, which Douglas Harris terms the “legal capture of the fishery”. As of 1892, only 40 of 3,000 Indigenous fisheries were granted licenses. As a matter of policy, the DFO granted licenses to “bona fide white fisherman” on the north coast of the province as a matter of “priority”. [7]
Indigenous peoples have continued to fight back and assert jurisdiction over their fisheries. In R v Sparrow, [8] Ron Sparrow raised an Aboriginal rights defence to a conviction under the Fisheries Act, specifically arguing that the DFO’s net length restriction violated an Aboriginal fishing right protected under section 35(1) of the Constitution Act, 1982. [9] The Supreme Court overturned the conviction, rejecting the “public interest” argument advanced by the DFO. While accepting conservation as a valid objective, the Supreme Court held that Aboriginal fishers should be given priority over non-Aboriginal fishers when fishing for food, social, and ceremonial purposes.
The existence of a common law Aboriginal right to fish for commercial purposes has been more fraught than the right to fish for food, as seen in the case of R v Van der Peet. [10] In Van der Peet, the Supreme Court upheld the conviction of a Stó:lō woman under the Fisheries Act for selling salmon under a food-fishing license. The Court asserted that Dorothy Van der Peet had “failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Stó:lō culture which existed prior to contact and was therefore protected by section 35(1) of the Constitution Act, 1982”. [11] Following Sparrow and Van der Peet, the DFO initiated a pilot sales program through which bands that sign agreements are able to sell a limited number of fish caught under food fishing licenses.
Non-Indigenous fishers have continued to protest the DFO’s pilot program, as well as other fishing regulations that enable Indigenous fishers to prioritized fishing access. Essentially, these fishers argue that the “doctrine of priority” advanced in Sparrow has lead to a “race-based fishery”. Generally, these fishers fail to understand both the extent to which the Indigenous fishery was appropriated by the Canadian state and the Supreme Court’s holding in Sparrow. Indigenous fishers are given “priority” not because they are given “special treatment”, but because they have fished on this land for millennia and because traditional fishing practices are intertwined with their governance, law, and social existence. While conservation of scarce resources is an obvious concern, we would do best to defer to Indigenous fishers; indeed, Indigenous peoples have done just fine long before the imposition of the industrial fishery.
Until next time,
Team ReconciliAction YEG
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[1] See e.g. B.C. Elders Communication Center Society (2006), online: <http://bcelders.com/Newsletter/Sept06.pdf>.
[2] Indigenous Foundations, “Aboriginal Fisheries in British Columbia”, (2009), online: <https://indigenousfoundations.arts.ubc.ca/aboriginal_fisheries_in_british_columbia/#_edn1>.
[3] Martin Weinstein, “Pieces of the Puzzle: Solutions for Community-Based Fisheries Management from Native Canadians, Japanese Cooperatives, and Common Property Researchers” (2000) 12 Georgetown Int Envtl L Rev 375 at 375-412.
[4] Douglas Harris, Fish Law and Colonialism: The Legal Capture of Salmon in British Columbia (Toronto: University of Toronto Press, 2001) at 96.
[5] Dianne Newell, Tangled Webs of History: Indians and the Law in Canada’s Pacific Coast Fisheries (Toronto: University of Toronto Press, 1994) at 73.
[6] Ibid at 86, 109.
[7] Indigenous Foundations, supra note 2.
[8] [1990] 1 SCR 1075, 1990 CanLII 104 [Sparrow].
[9] Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[10] [1996] 2 SCR 507, 1996 CanLII 216 [Van der Peet].
[11] Ibid.
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