First nations, consultation, and the rule of law: Salmon farming and colonialism in British Columbia

American Indian Culture and Research Journal

Volumn 30, Issue 4, 2006, Pages 19-40

  Schreiber, Dorothee ^a  

^a MCGILL UNIVERSITY   (Canada)

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[No Author keywords available]

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EID: 33947217293     PISSN: 01616463     EISSN: None     Source Type: Journal    
DOI: 10.17953/aicr.30.4.t1h10246861230w6     Document Type: Article

References (88)

1. Scientists for the industry and others contest the assertion of a sea lice infestation in the wild stocks (claiming it is a "natural" occurrence) and deny that sea lice are transmitted from farmed fish populations to wild stocks. The majority opinion among scientists, however, supports the existence of a link. See, e.g., Martin Krkosek, Mark A. Lewis, and John P. Volpe, "Transmission Dynamics of Parasitic Sea Lice from Farm to Wild Salmon," Proceedings of the Royal Society Series B 272 (2005): 689-96.
2. John Volpe and his colleagues have documented the phenomenon of farmed salmon escaping from their pens and reproducing in nearby streams. See J. P. Volpe, E. B. Taylor, D. W. Rimmer, and B. W. Glickman, "Natural Reproduction of Aquaculture Escaped Atlantic Salmon (Salmo salar) in a Coastal British Columbia River," Conservation Biology 14 (2000): 899-903.
3. See, e.g., the testimony of Mano Taylor, a Kwakwaka'wakw clam digger, speaking in Alert Bay at the Leggatt Inquiry on 4 October 2001. Stuart Leggatt, a retired judge, was hired by the David Suzuki Foundation to travel to communities affected by salmon farming - Alert Bay, Campbell River, Port Hardy, and Tofino - and hear the testimony of both Native and non-Native people. Readers can obtain copies of the verbatim transcript by contacting the court reporting service Allwest Reporting Ltd., 814 Richards Street, Vancouver, BC V6B 3A7.
4. Shepard Krech III, The Ecological Indian: Myth and History (New York: W. W. Norton, 1999).
5. Arthur Ray, I Have Lived Here since the World Began (Toronto: Key Porter Books, 1996).
6. Taiaiake Alfred, Wasase: Indigenous Pathways of Action and Freedom (Peterborough, Ontario: Broadview Press, 2005).
7. Lee Maracle, I Am Woman (North Vancouver, BC: Write-on Press, 1988), 166.
8. This was the way Marie Battiste summarized the theme of the volume she edited. Reclaiming Indigenous Voice and Vision (Vancouver: University of British Columbia Press, 2000), xvii.
9. This is a term used by Cole Harris in Making Native Space: Colonialism, Resistance and Reserves in British Columbia (Vancouver: University of British Columbia Press, 2002), 304.
10. Dianne Newell, Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries (Toronto: University of Toronto Press, 1997), 96.
11. These license limitation schemes began with the Davis Plan of 1968 and continued under the recommendations of the Pearse Commission in 1982. See Newell, Tangled Webs of History, 149-71.
12. Ibid., 148-79.
13. Dean Bavington has pointed out that large freezer factory trawlers are the precursors to the modern industrial fish farm. See "From Jigging to Farming," Alternatives Journal 27, no. 4 (2001): 16-21.
14. In 2000, the Department of Fisheries and Oceans launched its Program for Sustainable Aquaculture, which provides funding to "enhance sector innovation and productivity." See http://www.dfo-mpo.gc.ca/aquaculture/ref/ AAP_e.htm (accessed 27 June 2005).
15. For more information on the nature of the fiduciary relationship, see Brian Slattery, "First Nations and the Constitution: A Question of Trust," The Canadian Bar Review 71 (1992): 261-93.
16. Ibid., 272.
17. Most Kwakwaka'wakw from this region live today on the reserve at Alert Bay. Many are registered as band members (under the Indian Act) with the Namgis First Nation, which has a population of approximately 1,600 individuals.
18. Today the southern Kwakwaka'wakw of this area are distributed among several reserves in Campbell River and at Cape Mudge that combined have about 1,500 registered members. The Ahousaht (population of approx. 2,000) is one of the Nuu-chah-nulth tribes of the west coast of Vancouver Island.
19. The Kitasoo Band is part of the Tsimshian Tribal Council and has around 500 band members.
20. In R. v. Haines [2003] 1 C.N.L.R. 191, both the Native fishers and the BC Provincial Court recognized that the Haida and Nisga'a nations have marine territories. See Douglas Harris, "Indigenous Terrkoriality in Canadian Courts," in Empty Box or Box of Treasures: Two Decades of Section 35, ed. Ardith Walkern (Penticton, BC: Theytus Books, 2003), 175-91.
21. See the statement of the Kitasoo/Xai'xais First Nation on salmon farming at http://www.kitasoo.org/fisheries/salmonfarm/index-salmon.html (accessed 21 April 2006).
22. Quentin Dodd, "Island First Nation Backs Off Fish Farming," The Tyee, 4 May 2004, http://thetyee.ca/News/2004/05/04/ Island_First_Nation_Backs_Off_Fish_Farming (accessed 21 April 2006).
23. Musgamagw Tsawataineuk Tribal Council, "Salmon Farming and First Nations," http://www.mttc.ca/pdf/SalmonFarmingandFirstNations.PDF (accessed 27 June 2005).
24. One notable example is Tom Sewid and some members of his family. See Tom Sewid, "'Battle for Broughton' Bad for Tourism," letter to the editor, North Island Gazette, 23 April 2003, 7.
25. The "protocol agreement" described how the informal relationship between a fish-farming company, Pacific National Aquaculture, and the local First Nation, the Ahousaht, would develop. The only publicly known part of the agreement was that the Ahousaht would accept the presence of fish farms in exchange for recognition of the existence of their hereditary chiefs (ha'wiih) and their territories (hahoulthee). This agreement, which involved confidential deals between band administrators and company officials regarding cash payments and promises of employment for band members, never adequately addressed many Ahousaht peoples' concerns regarding the long-term effects of the company's practices on the wild fisheries.
26. Thomas Isaac, Aboriginal Law: Commentary, Cases, and Materials (Saskatoon, Saskatchewan: Purich Publishing Ltd., 2003), 216-17.
27. Delgamuukw [1997] 3 S.C.R. 1010 at para. 168 [hereinafter Delgamuukw].
28. Delgamuukw at para. 168.
29. Environmental Assessment Office, Salmon Aquaculture Review: Volume 2 - First Nations Perspectives (Victoria, BC: Government of British Columbia, 1997).
30. Ibid., 26.
31. Ibid., 27.
32. Ibid.
33. Ibid., 62.
34. Ibid.
35. Ibid., 77.
36. R. v. Jack [1995] 16 B.C.L.R. 201 [hereinafter Jack]
37. Jack at para. 77.
38. Environmental Assessment Office, Salmon Aquaculture Review, 55.
39. James A. McDonald, "Social Change and the Creation of Underdevelopment: A Northwest Coast Case," American Ethnologist 21, no. 1 (1994): 154.
40. McDonald, "Social Change," 162.
41. R. v. Sparrow [1990] 1 S.C.R. 1075 [hereinafter Sparrow].
42. Ibid. at 1079.
43. Ibid. at 1106.
44. Ibid. at 1105.
45. Ibid. at 1110.
46. Blaney et al. v. British Columbia (The Minister of Agriculture, Food, and Fisheries) [2005] B.C.S.C. 283 [hereinafter Blaney].
47. See the response of the BC Salmon Farmers' Association, http://www.salmonfarmers.org/files/03_03_05.html. Chief Darren Blaney of the Homalco First Nation responded to the decision by saying: "I don't think government agencies will take us so lightly anymore. They won't be able to sweep us under the carpet." See http://thetyee.ca/News/2005/04/05/ ChiefLeadsHomalco (accessed 28 June 2005).
48. Blaney at para. 23-24, 30-31, 59-63.
49. Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511 [hereinafter Haida];
50. Taku River Tlingit First Nation v. British Columbia [2004] 36 B.C.L.R. 370 [hereinafter Taku].
51. Blaney at para. 129.
52. Ibid. at para. 20, 127.
53. Ibid. at para. 20.
54. Haida at para. 42.
55. Ibid. at para. 18.
56. Blaney at para. 106.
57. Ibid. at para. 45.
58. Fish Farming and Environment Summit, organized by the BC Aboriginal Fisheries Commission, 24-26 September 2002, Tseil-Waututh Nation Community Centre, North Vancouver, BC.
59. Ibid.
60. Duncan Williams, speaking at the Fish Farming and Environment Summit, n. 57.
61. See n. 57.
62. British Columbia, Provincial Policy for Consultation with First Nations (Victoria, BC: Government of British Columbia, 2002), 19.
63. In 2005, BC's Ministry of Aboriginal Relations and Reconciliation developed the New Relationship. The New Relationship, http://www.gov.bc.ca/arr/popt/the_new_relationship.htm (accessed 28 November 2005).
64. The New Relationship, 1-2.
65. See n. 57.
66. Thanks to one anonymous reviewer for pointing this out.
67. McDonald, "Social Change," 161.
68. BC Salmon Farmers' Association headquarters, Campbell River, British Columbia. This letter was dated 21 January 1998.
69. BC Salmon Farmers' Association headquarters, Campbell River, British Columbia. Letter from the BC Salmon Farmers' Association to Hereditary Chief Henry Scow of the Kwicksutaineuk, 26 February 2001.
70. Bruce Braun, "Colonial Vestiges: Representing Forest Landscapes on Canada's West Coast," in Troubles in the Rainforest: British Columbia's Forest Economy in Transition, eds. Trevor J. Barnes and Roger Hayter (Victoria, BC: Western Geographical Press, 1997), 112-15.
71. This material stems from conversations I had at the BC Salmon Farmers' Association office in Campbell River during my participant observation there in May of 2002.
72. Ibid.
73. See n. 57.
74. Ibid.
75. The name of this salmon farming company has been changed.
76. Interview with salmon farming company representative, name and location withheld, February 2003.
77. Steve Roe and Students of Northern Lights College, "'If the Story Could Be Heard': Colonial Discourse and the Surrender of Indian Reserve 172," BC Studies 138/139 (2003): 129-30.
78. See n. 86. Given that the provincial government continues to oversee the licensing of fish farms, it is unlikely dial a First Nation could ever effectively evict a salmon farming company against the wishes of the province. The MTTC, e.g., has been trying to achieve this for years and has not succeeded.
79. Taku at para. 40.
80. Ibid. at para. 5, 12.
81. Ibid. at para. 42.
82. Blaney at para. 20.
83. British Columbia, Provincial Policy for Consultation, 13.
84. Kent McNeil asks, "Since when . . . can constitutional rights be overridden for the economic benefit of private persons who do not have equivalent rights? Isn't this turning the Constitution on its head by allowing interests that are not constitutional to trump rights that are?" Kent McNeil, Defining Aboriginal Title in the 90s: Has the Supreme Court Finally Got It Right? (Toronto: Robarts Centre for Canadian Studies, York University, 1998), 19.
85. Taiaiake Alfred, "Deconstructing the British Columbia Treaty Process," University of Victoria, December 2001, http://www.taiaiake.com/ words/articles/index.html (accessed 31 May 2004). See also Alfred, Wasase, 111, 185.
86. R. v. Gladstone [1996] 4 C.N.L.R. 65 at para. 73 [hereinafter Gladstone]. This case involved two Heiltsuk men who claimed an Aboriginal right to sell herring spawn-on-kelp. The Supreme Court of Canada found that a commercial right existed but that there was insufficient evidence to decide whether an infringement of the right, through licenses and fisheries regulations, was justified.
87. Delgamuukw at para. 165.
88. Taiaiake Alfred and Jeff Corntassel, "Being Indigenous: Resurgences against Contemporary Colonialism," Government and Opposition 40, no. 4 (2005): 600.