The voice
ofB.C. i organized fishing industry workers
VISTA process could build bridges over treaty claims
By DENNIS BROWN_
UFAWU Secretary-Treasurer
There is an ancient symbol in the Chinese language that characterizes a certain kind of crisis as a "dangerous opportunity.'' That neatly describes the situation this industry faces as it tries to define an equitable solution to the aboriginal claims on Canada's fisheries resources.
The dangerous opportunity arises in the form of a new tripartite forum known as the "Vista" process, which is seeking to open dialogue among commercial, recreational and native fisheries' representatives. The object isn't negotiations but rather establishing a place where the three groups might find some common ground.
The process was conceived by an ad hoc steering committee which included Barry McMillan of J.S. McMillan, Gerald Amos, chair of the B.C. Aboriginal Fisheries Commission, and Rich Chappie of the Sports Fishing Institute of B.C. The name Vista comes from the consulting group that was originally hired to facilitate the process.
Around the same time as the Vista process was being established, the federal and provincial governments reached an agreement to establish a comprehensive land claims treaty process.
For years, the legitimate claims of aboriginal peoples languished while governments either ignored them or denied any responsibility. But in more recent years, public opinion has shifted so significantly on this issue that virtually all governments and economic sectors have come around to the idea that equitable and lasting settlements are in everybody's interest.
The problem is: how do we get from the level of pious platitudes to the realization of concrete goals?
Certainly, the establishment of a comprehensive
treaty commission is a step forward. Now, for the first time, both levels of government has agreed to a cost-sharing formula. There has also been a quantum leap in the pace of treaty negotiations. By Dec. 15, 1993, the province had opened an Aboriginal Treaty Commission office and virtually every native band in the province had filed its intention to negotiate.
This must be seen as good news, not only for native people but also for those of us who are employed in the commercial fishing industry.
Until now, the fishing industry has been vulnerable to the ad hoc nature of native claims negotiations — for a number of reasons. First, comprehensive talks were limited by federal negotiators, since only six claims across the country were accepted for negotiations at any given time. Even those talks that were going on were moving at a glacial pace (such as the Nisga'a claim which
The VISTA process offers a fragile and precious opportunity for those in the fishing industry.
• DENNIS BROWN... process could fail if government pushes ahead with AFS.
has been in the works for close to two decades).
In addition, the absence of provincial participation and the lack of a federal-provincial cost-sharing arrangement meant that the only natural resource on the table during interim federal negotiations was fish.
As a result, the B.C. fishing industry became an unfortunate guinea pig in a major social experiment involving the transfer of resources. Given the general view within the federal government that the fishing industry is a "sunset industry," it's easy to see why the industry became a convenient means by which the federal government could find a low-cost but high profile way to mollify native demands
the impact on Canadians in general.
But clearly the debt that is owed to native people is owed by all of Canada and not one relatively minor section of the Canadian economy. With the new claims negotiations underway, all resources should be on the table and the costs of settlement shared equally.
But despite the comprehensive claims process, the spectre of the old "interim measures" still haunts us. The disastrous Aboriginal Fisheries Strategy, while supposedly still under internal review within the DFO, is still very much alive.
Much of the AFS is generally acceptable. Programs to promote native enhancement programs as well as the research, education and training components of the program are worthwhile. However, the program fails because of the federal government's insistence that a separate commercial fishery, based mainly on inland fisheries, is the way to develop native economic opportunity.
In a sense, the AFS has achieved the opposite of its stated intention. Instead of reaching greater consensus, the fish-
ing industry — which once enjoyed the highest degree of native involvement and racial harmony of an industry in Canada — ended up in turmoil. Instead of greater control over management functions and conservation of the resource, the entire industry is imperiled by jurisdictional confusion.
By no means were native people to blame, however — this was never what they asked for, either.
Instead, the AFS was the problem — the brainchild of bureaucrats operating by remote control. And despite the somewhat better record in 1993, the issue could once again get out of control.
It is within that context that the dangerous opportunity presents itself. Clearly DFO could provide no satisfactory leadership on the matter and the conflict in the fishing industry is detrimental to the overall settlement aspirations of native people across the country. One can only speculate that this was DFO's strategy all along.
The Vista process offers one fragile and precious opportunity for those in the fishing industry. So far only two meetings have occurred but already there is some common ground apparent.
In the discussion at the first meeting Feb. 14 all three groups recognized the common threat posed to the fisheries resource by mega-projects such as Alcan and various other habitat concerns.
There was also a very frank exchange about the different cultural ways that the three groups approach life and the resource.
The second meeting March 4 got down to detail on estabhshing objectives and assembling information in order to establish some consensus.
Interestingly enough, no one felt inhibited about speaking frankly for fear of others leaving the room. And no one regretted the absence of DFO in its customary role of supervisor.
As its stands now all three parties have agreed to try to allow the process to continue. A joint application has been made to the federal government for funding.
There's some satisfaction in knowing that as an industry, we've been able to defend our interests and yet still talk openly and freely with native people. That comes despite criticism from some sections, particularly the media, that commercial fishing industry leaders have been racist in their approach.
However, you can't take anything for granted and we must remain grateful that native leaders have shown an open-minded willingness to talk. I trust that an equal acknowledgment exists within the native community as well.
There is a danger to the process, however, — it could all fail if DFO proceeds blindly in implementing AFS policy over the next few months without any reference to the Vista process.
Obviously this forum has to be given time and resources to proceed. The best way for DFO to contribute would be to suspend the controversial elements of the AFS, including the commercial sales and self-management components. That would give the new Vista process room to explore alternatives and find areas of potential consensus.
Fish cases proceed to high court appeal
As expected, five B.C. cases involving aboriginal fishing rights and native commercial sales will be going before Canada's highest court for a final appeal.
The Supreme Court of Canada announced March 10 that it would hear the appeals, which are expected to be scheduled quickly.
The cases were those decided by the B.C. Court of Appeal last June, when a majority of Appeal Court justices ruled that native people do not have an aboriginal right to sell fish commercially and native band bylaws cannot supersede fishery regulations, even on rivers running through the reserve. In the two key cases, Begina vs. Vander Peet and Regina vs. NTC Smokehouse, the court ruled that commercial sales "should not qualify for protection as an aboriginal right."
Although the decisions by the B.C. court effectively removed the legal underpinning to the federal government's discredited Aboriginal Fisheries Strategy, the ruling had little impact on the sales component of the AFS, which most were expecting would be renewed this year, following a review. But a Supreme Court of Canada decision upholding the B.C. Court of Appeal would have far wider implications since it would address the issue that was not dealt with in the Supreme Court's Sparrow decision, namely the right to sell fish commercially.
(However, Ernie Crey, co-ordinator for the Lower Fraser Aboriginal Fisheries Authority declared last week that the Sto:lo people would continue to sell fish commercially regardless of the outcome of the appeal.)
The B.C. Fisheries Survival Coalition voted at its annual general meeting earlier this year to seek intervenor status in the Supreme Court appeal. Coalition lawyer Chris Harvey noted that the intervention would be of critical importance since only one of the Supreme Court justices is from B.C. and the issue is not a familiar one to the court.
The coalition is expected to launch a fund-raising campaign to back its participation in the appeal.
THE FISHERMAN / MARCH 21,1994 • 5