Treaties - the Future of the Fisheries: A Post Treaty Vision

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Treaties and Transition
Towards a Sustainable Fishery on Canada’s Pacific Coast

A call for the reorganization of BC's salmon fishing industry . . .

"The report’s authors support First Nations access to commercial fisheries through interim arrangements as a transition to an integrated commercial fishery and treaty arrangements."

May 5, 2004

"Our analysis suggests the fears that there will be no room left for nonaboriginal fishers if treaty settlements continue on their present path are exaggerated."

The Report of The Joint Task Group on Post-Treaty Fisheries urges a long-term toward sustainable, integrated fisheries management, as well as more stakeholder involvement.

It recommends new management systems for the Pacific salmon fishery, to accommodate the needs of First Nations, commercial and recreational fishers.

"The salmon industry is depressed and declining. As it currently exists, the fishery is economically unsustainable; in fact, it is teetering on bankruptcy. Governments face the stark choice of presiding over its demise or making fundamental changes to restore its viability."

Key recommendations include direction for all fisheries, including salmon, to be managed by individual quota and commercial licences to be valid for 25 years.

"There are four critical elements to our vision of a post-treaty fishery. It is a fishery that is sustainable. It is a fishery in which the participants are
treated equitably and fairly. It is a fishery that is managed effectively. It is a fishery that realizes its full economic and social potential."

The report recommends co-management with fishing organizations as a key initiative in implementing the proposals; new legislation to enable implementation; and compensation for fishers displaced by settlement of treaties.

The commercial fishery, still the dominant fishery, is undergoing a profound transformation. "Parallel to this, and an integral part of this change, is the growth through treaty settlements of the First Nations fishery, particularly a commercial fishery. These settlements will have an impact not only on who will harvest the catch, but even where fisheries are located."

Treaties and the Future of the Fisheries: A Post Treaty Vision . . .

"In order to consider what the future holds in a post-treaty era we must first consider what is happening in the negotiation of treaties and the
implications of their outcomes."

"Stakeholders have impressed upon us the prevailing uncertainty and anxiety about where treaty negotiations and other recent developments are leading. This uncertainty about the future, and the consequent apprehension among fishers about their position in the fishery, undermines
confidence in the treatymaking process, deters investment and long-term
commitment and generates friction among fishing groups."

The report endorses the current approach to negotiating fisheries components in treaties, including commercial harvesting agreements with First Nations.

" . . . the best evidence available on which to base expectations about reallocations of fish through treaties and related settlements . . . suggests that there is no justification for the view that the present approach to fisheries settlements will leave no place for non-treaty based fishers."

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THE SETTLEMENT OF TREATIES

Treaties are detailed, binding agreements between the Crown and First Nations. With the exceptions of a treaty extending into the northeast
corner of B.C., the 14 Douglas Treaties signed on southern Vancouver Island in the 19th century and the Nisga’a treaty, which entered into
effect in 2000, treaties have yet to be concluded with B.C. First Nations.

Currently negotiations are underway between Canada and B.C. and 55 First Nations at 45 separate negotiating tables. Meanwhile, four First
Nations have ratified Agreements in Principle (AIPs), which form the basis for the negotiation of final treaties, and there are two further AIPs that have not been ratified.

All these AIPs have included provisions for fisheries.

TREATIES AND HARVEST AGREEMENTS
The Douglas Treaties use only general language about the First Nations’ rights to fish. However, the Nisga’a treaty provides for specific quantities
of each species of fish for food, social and ceremonial purposes (aboriginal food fishery) including 10.5 per cent of the Nass River sockeye and 0.6 per cent of the pink salmon. The treaty also sets out arrangements for managing this fishery.

Provisions for an additional commercial fishery are set out in a separate Harvest Agreement referred to in the treaty but not formally a part of it. It provides the Nisga’a an additional allocation of 13 per cent of the
allowable catch of Nass River sockeye and 15 per cent of the pink salmon for commercial use. The Harvest Agreement is a long-term, 25-year
“evergreen” agreement, replaceable at the option of the Nisga’a after 15 years, with another 25-year agreement.

The importance of fisheries varies in treaty negotiations according to historical use, resource abundance, location and other factors, but the AIPs concluded so far follow the Nisga’a model in that they distinguish between provisions for fish in treaties and provisions for fish in Harvest
Agreements.

Generally the fish caught under treaty provisions must be used for the aboriginal food fishery and are not to be sold, whereas fish caught under Harvest Agreements are for commercial use.

Some AIPs do not provide for specific quantities of fish for the aboriginal food fishery but rather set out a process for determining these quantities
with reference to the abundance of stocks.

Harvest Agreements create a new form of fishing right. They include provisions for the harvesting and sale of fish, the location of permitted
fishing, catch monitoring and fisheries management. They provide for the transfer of licences to be held communally by the First Nation.

More importantly, they allot each First Nation a specific share of the commercial catch. Provisions are included in the Harvest Agreements to ensure that these fishing rights will be exercised on the same basis as the regular commercial harvest. For example, AIPs include provisions that First Nation fisheries are to have the same priority in fisheries management decisions as the regular commercial fishery. They also provide that fishing under Harvest Agreements is not to be conducted when other commercial fishing in the area is closed.

The combined effect of future treaties and Harvest Agreements will provide First Nations with defined shares of the catch for the aboriginal
food fishery as well as for commercial purposes. The right to fish in the aboriginal food fishery will enjoy the security of constitutional protection, will be perpetual and will take priority over all other fisheries. The right to
commercial fish will be a long-term, renewable contractual commitment, with the same priority as other commercial fishing.

SHOULD THERE BE HARVEST AGREEMENTS?
We heard much criticism of Harvest Agreements. Moreover, while honouring the Harvest Agreements that have been provided for in AIPs so
far, the B.C. government has withheld its consent to future Harvest Agreements pending our report. Thus, we felt it necessary to consider whether Harvest Agreements were an essential part of the treatymaking
process or whether they should be reconsidered.

Harvest Agreements are the mechanisms by which commercial allocations are provided to First Nations. The model was adopted in the Nisga’a Final Agreement to overcome opposition to giving treaty (and thus constitutional) protection to commercial rights to fish.

Opposition to Harvest Agreements is threefold:

First, the rights to fish granted in Harvest Agreements are viewed as reducing the size of an already diminishing pie; eventually there will be no
more fish for the non-treaty commercial and recreational sectors.

Second, established commercial fishers fear that those who fish under Harvest Agreements will have an advantage over them in terms of the rules (and hence the cost) of fishing.

Third, there is concern that rights under Harvest Agreements will give First Nations priority over the non-treaty commercial sector. The former
have long-term, guaranteed rights to a share in the fishery; the latter have only a limited, annual right to engage in a competitive fishery.

In our view, the concern that Harvest Agreements provide better rights than those of existing commercial fishers should be addressed not by
reducing one group’s rights but by ensuring that all groups have rights appropriate for the conduct of a fishery. The objective should be a fully
integrated commercial fishery based on long-term security for all fishers. And in our view, the long-term rights provided by Harvest Agreements
are well suited to commercial fisheries generally.

Once an integrated commercial fishery is achieved with all operating under the same rules and regulations and no group with priority over
the other, as the AIPs contemplate, Harvest Agreements will be just the historical basis under which shares were allocated to First Nations.

Thus, we have concluded that there is no reason to object to the conclusion of Harvest Agreements. If allocations of commercial fish are to be made to First Nations, there has to be some contractual arrangement for doing this. A Harvest Agreement is an appropriate mechanism for
making such allocations.

IMPACT OF TREATY SETTLEMENTS
Treaty settlements are expected to transfer to First Nations increased access to fish. The questions repeatedly raised in our consultations
were “How much?” and “Will there be any place left for nontreaty based commercial and recreational fishers?” During our inquiry more than a few
people warned that the present approach in negotiations, as reflected in recent agreements, could have the cumulative effect of transferring all fishing rights to First Nations.

No one, of course, can predict the outcome of treaty negotiations. Each set of talks is conducted independently, each with its own dynamic and priorities. In particular, some First Nations historically have had greater involvement in fishing than others. Some see fish mainly as a source of
sustenance, others as an economic opportunity; and each faces a myriad of other challenges at the negotiation table.

While we have little quantifiable data upon which to draw, given the widely held anxiety about this controversial issue we have taken a detailed look
at the agreements to date and their implications for posttreaty fisheries. Our analysis suggests the fears that there will be no room left for nonaboriginal fishers if treaty settlements continue on their present path are exaggerated.

We examined the settlements so far with regard to allocation of sockeye salmon, the species in strongest demand and specifically provided for in
AIPs. We expect future settlements for other species will have smaller allocations.

For the six AIPs negotiated so far, we calculated the increase in the provisions for sockeye for both food fisheries and commercial use over the First Nation’s actual catches during the past decade, and extrapolated
this increase across all First Nations in B.C.

Based on our calculations, if future settlements increase sockeye allocations by the same magnitude as the AIPs agreed to so far, the cumulative result after all treaties are settled will be an allocation of 33 per cent of the total coastwide catch of sockeye to First Nations under
their provisions for food fishing and commercial use combined.
We must emphasize the statistical basis for making these estimates is weak. However, we experimented with alternative ways of analyzing and extrapolating from these data – by region, with reference to catches
under Pilot Sales and allocations under the Aboriginal Fisheries Strategy – and all tended to confirm this order of magnitude; none exceeded 38 per cent. However, we must emphasize once again the limitations of these calculations and consequently, the inferences that can be drawn from them; they merely indicate where negotiations so far are leading. We also note that these calculations do not include the rights held by aboriginal people and communities in the regular commercial fishery.

Nevertheless, this is the best evidence available on which to base expectations about reallocations of fish through treaties and related settlements and it suggests that there is no justification for the view
that the present approach to fisheries settlements will leave no place for non-treaty based fishers.

Thus, our vision of post-treaty fisheries includes substantial opportunities for all sectors – commercial, aboriginal and recreational.


COMPENSATION
The transfer of fish and other resources expected to occur as treaties are settled will inevitably produce benefits for some and costs for others.
Our terms of reference call on us to recommend ways to offset adverse impacts that fall on established fishers as a result of reallocating rights to fish through treaty settlements.

COMMITMENT TO COMPENSATION
We begin with the widely supported proposition that the costs of treaty settlements –both for increased food, social and ceremonial fish use
(aboriginal food fishery) as well as fish for commercial sale – are intended to be borne equitably by all Canadians.

This means that costs should not fall disproportionately on established fishers, and so, to the extent that their allocations of fish are reduced to meet treaty obligations, fishers should be compensated.

On more than one occasion in the past, the Minister of Fisheries and Oceans (Minister) has indicated that such impacts would be compensated and some mitigation was provided to offset reallocations under the Nisga’a treaty, but there has never been a formal declaration to this effect. Moreover, recent commitments to First Nations of new roe-on-kelp
licences have had adverse effects on other fishers who have not been compensated.

As a result, we encountered in our consultations a deep and widespread anxiety among commercial and recreational fishers that the burden of
increased allocations to First Nations would be borne by them, without compensation. These apprehensions about the government’s intentions,
and the absence of any formal assurance to the contrary, have contributed to opposition to treaty settlements.

This appears to us to be another example of an obstacle to treaty settlements arising from lack of clarity in governmental policy, rather than
disagreement with the policy itself.

It is our impression that the federal government does indeed intend to compensate fishers whose existing rights are diminished to meet treaty
obligations, but this is not enough; it must make this intention clear in a reliable commitment.

We therefore recommend that the Government of Canada issue a formal
statement to the effect that it will offset adverse impacts on established fishers arising from reallocation of rights to fish under treaty settlements.

METHODS OF COMPENSATION
With respect to the methods of compensation, there are two general cases to consider.

When rights to fish in the fisheries regulated by individual quotas are transferred to First Nations, rights of equal amount should be purchased
from the lowest offers among quota holders in the relevant fishery.

In this way the compensation issue is resolved equitably through market
transactions involving purchases from willing sellers.

Until licence shares or individual quotas are adopted in the salmon fishery and other competitive fisheries, the solution is more complicated because specific allocations of fish to First Nations must be offset by withdrawing
licences from the commercial sector that provide only an opportunity to fish for an unspecified quantity. In these circumstances, the government’s
policy should be to buy licences from among those licensed to fish in the relevant area. Sufficient licences should be purchased and retired to
remove a portion of the total fishing capacity equal to the proportion of the total harvest reallocated to the First Nation.

Until commercial salmon licences are converted to the new quota licences, specific allocations of sockeye provided for in treaty settlements must be offset by purchases of vessel licences, under which all species of salmon are normally caught. To determine how many of these licences are
sufficient to offset a sockeye allocation, the mixed catch is converted to “sockeye equivalents.”

However, the withdrawal of fishing pressure on (sockeye equivalents of ) pink and chum salmon will not offset sockeye allocations. In short, the formula for calculating these equivalencies is a source of concern and should be reviewed.

WHEN TO COMPENSATE
In general, whenever new commercial fishing rights that will adversely impact established fishers are created, or allocations of fish for the aboriginal food fishery are significantly increased, equivalent rights should be purchased from the established commercial sector, as described above.
One caveat must be added. Earlier in this report we noted that commitments to provide specific quantities of fish to locations upstream in rivers might well cost downstream fisheries a bigger loss in fish than the quantity gained upstream. This is because other stocks mingled with the
committed fish downstream must also be allowed to escape up the river and in most cases cannot be harvested. If this results in additional losses to commercial fisheries, they should be compensated for this as well.

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Treaties and Transition
Towards a Sustainable Fishery on Canada’s Pacific Coast

Treaties and the Future of the Fisheries: A Post Treaty Vision . . .

http://www-comm.pac.dfo-mpo.gc.ca/pages ... Report.pdf

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BACKGROUND ON THE ABORIGINAL FISHERY

Fish have always held an important place in the life of the First Nations of this region. Thus, increased access to fish resources and opportunities to advance their economic interests through fish production figure prominently in First Nations’ approach to treaty settlements.

There are two broad categories of aboriginal fisheries: a fishery for food, social and ceremonial purposes (aboriginal food fishery); and the commercial fishery.

The aboriginal food fishery has been recognized by the Supreme Court of Canada as a right enshrined in the Constitution, and thus has priority
over all other fishing.

The commercial fishery, by contrast, has been held not to be a general aboriginal right but one that must be proved on a case-by-case basis in the light of the particular historical circumstances of each First Nation.

The aboriginal fishery is conducted under a variety of arrangements. Most are organized under agreements between First Nations and the Department of Fisheries and Oceans (DFO) under the Aboriginal Fisheries Strategy, which has provided for the aboriginal food fishery as well as for the commercial fishery.

Agreements for the commercial fishery, known as “Pilot Sales Agreements” were intended as interim measures to provide First Nations with commercial access to fish, pending the settlement of treaties. These agreements were terminated in 2003 following a decision of the provincial
court (known as the Kapp decision) declaring them contrary to the Charter of Rights and Freedoms. That decision is now under appeal.

The conclusion of treaties with First Nations is providing a different legal basis for the aboriginal fishery. To date, the Nisga’a treaty is the only
modern-day treaty to have been concluded. However, six Agreements in Principle (AIPs) have since been negotiated, four of which have been ratified.

In most AIPs provision for the aboriginal food fishery is included in the treaty itself, while the commercial fishery is included in a separate Harvest Agreement.

The aboriginal fishery involves a wide variety of species of fish and shellfish.

However, salmon – and especially sockeye salmon – is overwhelmingly important.

Salmon are by far the most important species for the aboriginal food fishery; and sockeye accounts for more than 80 per cent of the salmon
taken coastwide. Fraser River stocks account for more than half this total. Over the past decade, harvests of Fraser River sockeye for the aboriginal food fishery averaged 12 per cent of the total catch, but this portion has varied widely, mainly because the aboriginal catch remained fairly steady
while the commercial catch fluctuated dramatically.

ABORIGINAL PARTICIPATION IN THE COMMERCIAL FISHERY

In addition to fisheries specifically for First Nations, there is significant aboriginal participation as individuals, corporations and organizations
in the general commercial fishery.

Aboriginal people held or exercised 27 per cent of the licences issued for commercial fishing in 2003. An estimated 14 per cent of the value of all commercial landings is harvested under licences held by aboriginal people.

Aboriginal participation in the fishing industry varies widely by fisheries. For certain species, such as green sea urchin, it is insignificant, while more
than 40 per cent of the value of salmon and 80 per cent of the spawn-on-kelp is landed under licences or other authorizations held by aboriginal
people.

Some 31 per cent of the jobs in commercial fishing are held by aboriginal people, although aboriginal employment is concentrated in the more labour-intensive fisheries such as salmon and clams.

Of the total 2,007 commercial licences held by aboriginals, 1,761 are in forms that cannot be transferred into non-aboriginal hands, including 1,085 licences held communally.

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Other Information of Interest on This Subject

http://www.turtleisland.org/discussion/ ... php?t=1019

http://www.turtleisland.org/discussion/ ... .php?t=892

http://www.turtleisland.org/discussion/ ... .php?t=868

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Treaties and Transition
Towards a Sustainable Fishery on Canada’s Pacific Coast

The Report of The Joint Task Group on Post-Treaty Fisheries


Orderly transition to new First Nations fisheries agreements in BC . . .

INTERIM ARRANGEMENTS FOR FIRST NATIONS

As treaties are settled, the legal basis for aboriginal fishing will gradually shift from the present variety of rights and agreements to treaties and
Harvest Agreements. The orderly transition to these new arrangements calls for the transfer of fishing rights from existing fishers to First Nations with the least possible disruption. Fishing for the aboriginal food fishery is
already well established, and the increases under treaties are not likely to present major transitional difficulties.

The primary method of providing commercial fishing opportunities for First Nations before treaties are settled has been to purchase licences from
commercial fishers through the government’s Allocation Transfer Program (ATP) and re-issue them to First Nations as communally held commercial licences.

This program has been ongoing since 1993, and to the end of March 2003 some $54 million has been spent on 314 licences of various types and
14 vessels for transfer to First Nations. These interim arrangements help to pace the reallocation of resources with treaty settlements, which would otherwise be abrupt and disruptive for both the First Nations and established fishers.

Without these interim arrangements some First Nations may attempt to harvest and sell fish anyway, creating enforcement and friction.

The Pilot Sales program also provided access to salmon for the commercial fishery in advance of treaties. In 1993, 49 of the salmon vessel licences purchased under the ATP were retired to offset the
reduction in catches available to the commercial fleet resulting from the Pilot Sales agreements on the lower Fraser and Somas rivers. With the termination of Pilot Sales last year those allocations will probably revert to the commercial fishery, creating the prospect of further dislocation (and
probably pressure for a second compensating purchase of licences) when treaties are finally settled.

Once the salmon fishery has adopted the proposed catchshare system, the transfer of rights to salmon will be simplified.

In the meantime, and pending the appeal of the Kapp decision, we recommend that the Department of Fisheries and Oceans (DFO) consult with representatives of First Nations to identify possible interim arrangements for First Nations fishing, possibly taking advantage of the licences already retired to offset Pilot Sales, in order to facilitate an orderly transition both to treaties and to an integrated commercial fishery.

Furthermore, we recommend an expanded effort to purchase commercial salmon licences and licences for other species in anticipation of Harvest
Agreements in future settlements. Licences acquired in this way would, of course, be eligible for catch shares when they are introduced and for
conversion into quota licences. Until ultimately being transferred to First
Nations as part of treaty settlements, they might be leased or assigned to fishing communities or individual fishers.

We see several advantages in purchasing licences now. One is that the value of salmon licences is likely to rise when they are converted to quota
licences and made more secure, so that First Nations will obtain more for treaty settlement funds used for this purpose now than they will be able to obtain in the future.

Second, it provides a means of smoothing the transition to treaties. And third, it offers an opportunity for established fishers who object to the
reorganization of the salmon industry to exit the fishery.

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Treaties and Transition
Towards a Sustainable Fishery on Canada’s Pacific Coast

The Report of The Joint Task Group on Post-Treaty Fisheries

EMPLOYMENT AND ECONOMIC DEVELOPMENT IN ABORIGINAL COMMUNITIES

In the course of this inquiry we have become concerned about the outlook for employment and economic stability of aboriginal communities, the
opportunities and expectations for development of fisheries, and the role of DFO.

Over past decades, DFO has directed a good deal of effort to facilitating First Nations’ participation in fisheries. This has included special commercial fishing licences with reduced fees for status Indians and assistance programs to lower the financial barriers to entering the
industry. As well, licences held by First Nations communally and restrictions on the transfer of licences from aboriginal to non-aboriginal people were meant to maintain First Nations’ participation in the fishery.

The Aboriginal Fisheries Strategy provided orderly access to fish for the aboriginal food fishery and commercial fishing opportunities, and a
variety of other programs.

These initiatives have been welcomed, although whether they have been successful in expanding or even stabilizing aboriginal employment in the fisheries, or in stabilizing aboriginal communities, is debatable.

Aboriginal fishers operating in the regular commercial fishery express deep concern about their future opportunities. Previous licence-retirement
programs depleted their numbers because many were so indebted that they had no alternative to selling out. Inflation of licence values has
presented a formidable barrier to entering the industry, and low earnings in the salmon fishery in recent years, coupled with the special difficulties
aboriginal people face in securing access to financial resources, have resulted in many leaving.

Moreover, restrictions and special provisions on commercial licences held by aboriginal fishers make those licences less valuable than licences held by nonaboriginals.

Accordingly, we urge close consultation between the government and
First Nations licence holders about the nature of the restrictions to be included in the new quota licences for First Nations commercial fishers.

We also suggest that treaty negotiators on both sides reflect on the
long-term economic implications of restrictions attached to communal licences.

Many aboriginal fishers we have consulted fear that reforms of the kind we urge in this report will further reduce aboriginal participation in the fishery. Their concern is understandable insofar as rationalizing the salmon
fishery will probably reduce employment in fishing (though perhaps by less than often feared). However, we see no alternative.

Either there is an industry with no future or there can be a prosperous fishery offering good jobs and a return on investment. Fundamental reform is essential. Nevertheless, we believe that governments have a responsibility to mitigate or offset losses in employment resulting from such a change in policy.

In this regard, we do not believe that responsibility for employment and economic development of aboriginal communities should be left to DFO, which understandably limits its scope to fisheries.

In considering economic opportunities for First Nations in the fisheries of the future, less conventional opportunities – in new fisheries, shellfish culture, aquaculture of marine plants, aboriginal products and other industries ranging from tourism to other resource industries – might offer more promise than some of the traditional fisheries.

We raise these issues in order to encourage a thorough review and assessment of policies for developing economic opportunities in rural and aboriginal communities in which fisheries have traditionally played an
important role.

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http://www-comm.pac.dfo-mpo.gc.ca/pages ... Report.pdf