First Nation attempts to control own fishery

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The Burnt Church First Nation is going up against the Department of Fisheries and Oceans (DFO), exercising what it sees as its treaty right by issuing band fishing licences and drafting its own fishery act and management plan.

James Ward is a member of the Burnt Church First Nation and has worked to develop the policies under which the band plans to run and regulate its own fishery.

The first of the documents, the fishery act, challenges and contests the federal fishery act.

"It's a very nationalist, sovereign-based type of document. We're basing it on international law and the fact that our treaty rights and our treaties are based on a nation-to-nation relationship."

The second document is the management plan, which Ward says provides foremost for conservation, as well as providing equal access to all that want to exercise their treaty right.

"This is about actually protecting our treaty right. So we make sure that everybody that wants to be able to fish, we try to make sure everybody has equal access to go fish," Ward said.

Ward said DFO only offering 17 licences for commercial fishing, for a community of 1,350. The Burnt Church plan identifies the community needs 15,000 traps, about five per cent of the non-Native traps in the water. DFO wants to restrict Native traps to 5,100.

"So we're saying 15,000 for the community, but we honestly believe we'll probably use half that - roughly anywhere from 6,000 to 8,000 is what we believe we'd use. So what we're saying is the rest of those tags that would of been or had the potential to be fished by our people, will actually be set aside, and won't be fished, and therefore it kind of relaxes some of the fishing effort on the lobster itself. So in and itself, it becomes a conservation measure," Ward said.

Burnt Church will have its own protection officers with equal duties, responsibilities and power to DFO's officers. A royalty program has also been established where fishermen would pay 10 per cent of their catch into a trust to be divided among community members, regardless of whether they fish or not, Ward said.

As of May 12, the band had issued 1,300 of its own tags.

"A few weeks ago, what we had was we had 13 commercial fishermen on the reserve that went and picked up tags from the DFO. That kind of threw a little monkey wrench into the works, because under the policy, Burnt Church was going to be the issuing authority. But we recognize them within the fishery effort though. By no means would we ever say they would be denied what they can fish, you know what I mean. So, including with them. . . the tags we're issuing we're calling treaty tags, and we want to see if they would also have a treaty tag on their trap also, so if you add our 1,300 to those 39,[hundred] the entire fishing effort in Burnt Church is only 5,200 tags, at the moment."

DFO has not taken kindly to the program, confiscating all traps using the treaty tags.

"You know, it's not a question of the management," Ward said of the DFO's refusal to recognize the treaty tags. "It's not a question of conservation. It's a question of control. Who controls the resource. And from the point of view we see is no matter how good we make this management plan, it could be the best one in the world, we know that they're going to reject it, and they're going to contest it as much as possible, because we're actually challenging their authority and their jurisdiction."

Ward explained the band is basing its right to control their own fishery, not on the Supreme Court's recent decision in the Marshall case, but on international law.

"We reject the concept of sui generis, which is subjecting treaties to Canadian domestic law at the violation of international law. So we're trying to re-empower our treaties as a nation to nation relationship. So if we recognize Marshall, what we're saying is we're allowing our treaties to be subjected to Canadian law, for Canadian law to interpret Marshall as they see fit. So I dn't think anywhere in our policy do you see Marshall as a source of authority. We use international law and inherent right, and our treaty right. It just so happens that Marshall coincides with this. But even if we were fishing under Marshall, they still wouldn't agree with us . . .Their interpretation of Marshall is far more rigid and limited than the way we interpret Marshall," Ward explained.

Despite the DFO's refusal to recognize the treaty tags, Ward said the band plans to continue implementation of its management plan. He said the federal department has made no attempts to hold discussions with the band regarding finding a middle ground between DFO and band efforts for regulating the fishery.

"They haven't even given any feedback. We sent the fishery act and management plan directly to Herb Dhaliwal's office. There has been no feedback. But they've already declared as of today that what we're doing is illegal fishing. So we're not expecting them, at any point in time, to recognize any part of the fishery act or the management plan. I really don't think they'd do that, because their negotiations are clearly to get us on their agreements, their templates, and those agreements are a clear infringement on the treaty right. So that's something we can't do. We will not even tolerate that," Ward said.

Heather Bala is in the minister's office at Fisheries and Oceans Canada.

"We're very open to talking to the band about setting up a co-operative interim agreement. We are open for discussion," Bala said.

"The only way we could use the band's tags is if we agreed on the amount of tags, what type of tags they are. If they want to put forward a proposal and we agree on that, then we're more than happy to let them use their own tags, but they do have to be managed and regulated, and that's in order to ensure that there's no poaching, and that conservation is still respected," Bala said.

Regarding the band authored fishery act and management plan, Bala said a copy has't been received by the minister's office and indicated the DFO will continue to seize any traps using the treaty tags.

"The minister said since the very beginning that it would have to be an orderly and regulated fishery, and that is consistent with the seizing of these traps that aren't marked appropriately.

"The Supreme Court decision, there was a clarification that came out in November, and that stated that the federal government does have the right to regulate the fisheries, and that is exactly what we're doing, Bala said.