Shellfish Aquaculture and B.C. First Nations

Chris TollefsonUniversity of Victoria, Faculty of

LawApril 2003

Acknowledgements

- Research done during Summer 2002 by Alyne Mochan & in the Fall 2002 by Katherine Deo

- In partnership with the B.C. Aboriginal Fisheries Commission (Susan Anderson-Behn) and the UVic Environmental Law Centre

Overview I many coastal First Nations regard shellfish

aquaculture as a promising economic, and culturally appropriate opportunity

many coastal First Nations suffering economically, especially with downturns in wild fishery and forestry opportunities

over one-half of coastal First Nations involved in commercial shellfish industry to some extent

Overview IIThis presentation addresses two issues

1. First Nations Rights and Shellfish Aquaculture Expansion2. Operational Challenges for First Nation Shellfish Initiatives

Also will discuss briefly some of the research questions on the horizon

First Nations Rights and Shellfish Aquaculture ExpansionA. Treaty and Claims Settlement ProcessB. Tenure Acquisition under provincial

authorityC. Other Issues:

Parks and protected areas Duty to consult (role of local

governments; tenure holders)

Operational Challenges for First Nation Initiatives Accessing Funding Community Politics Water Quality and Sanitary Testing Capacity building Regulatory barriers

First Nation Rights and Shellfish Aquaculture Expansion: I Most of coastal B.C. remains untreatied; Douglas Treaties (1850s) Nisga’a Treaty (2000) Snuneymuxw Treaty (2003?) Rest of Coast is subject to ongoing

claims; some in litigation; some in treaty process

First Nation Rights & Shellfish Aquaculture Expansion: II If a FN can establish that shellfish harvesting is

a “practice, custom or tradition” integral to its distinctive culture, strong basis for constitutionally right to continue traditional practice

Aboriginal rights may exist independently or alongside aboriginal title

Many coastal FNs currently claiming exclusive rights to harvest shellfish and marine plants from foreshore in their traditional territory

First Nation Rights and Shellfish Aquaculture Expansion: III Treaty and claims processes are slow,

expensive and cumbersome Litigation route presents especially

daunting evidentiary challenges Little headway being made with

exception of a few “breakthrough tables” For FNs that want to pursue commercial

shellfish opportunities, often only option is to pursue provincial permit

First Nation Rights and Shellfish Aquaculture Expansion: IVTenures can be acquired through this

route in two ways:

1. Pilot Beaches: co-management with DFO of shellfishery adjacent to reserve

2. Land Act Memo of Understanding (section 17)

Pilot Beach InitiativeAdvantages: quick turnaround; helps to

develop capacityDisadvantages: Still entails a referral process Lack of suitable sites; vagueness of

“adjacency” requirement Lack of suitable sites due to marine

pollution

Land Act: I Land Act allows Crown to allocate

foreshore resource tenures LWBC has identified areas for FN

shellfish tenures under an MOU process; allows for FNs exclusive right to apply for such tenures for 10 yrs

Avg size of sites is 30 to 60 hectares Over a dozen FN have entered into such

agreements

Land Act: II

Advantages: Exclusive right to

apply Without prejudice to

rights acquired later by way of treaty or litigation

Disadvantages FN must proceed

through same process as other tenure-seekers/ frustration at being subject to these rules on their traditional territory (reverse consultation requmts)

Overlapping FN claims can lead to applications being denied

First Nations Rights and Shellfish Aquaculture Expansion: Other Issues

Parks and Protected Areas:Many suitable growing locales are located within parks or conservation areasIn many cases, these areas were set aside without inadequate or no consultation with FNsConsequently, negotiations/litigation to redefine park boundaries likely

First Nations Rights and Shellfish Aquaculture Expansion: Other IssuesDuty to Consult Where a resource use/allocation decision may

affect FN rights or title, a constitutional duty to consult is triggered

The scope of this duty is constantly being reviewed & redefined by courts/government

Key problems include: - what “consultation” means (how much of an affirmative duty does it entail

- to whom does the duty apply?

The Duty to Consult How and to what extent

does it apply to local government?

If a conflict arose between a local action or enactment and a FN right, the latter would be held to prevail

The same would likely be true even if shellfish tenures were protected under the Agricultural Land Reserve

How and to what extent does the duty apply to private tenure holders?

To the extent that it does, this vests private tenure holders with ongoing consultation responsibilities

Operational Challenges for First Nation Initiatives Accessing Funding Band Politics Water Quality and Sanitary Testing Capacity Development Regulatory Framework

Accessing Funding FN communities lack the usual means of

accessing startup capital due to legal status of FN land holdings

Reserve lands cannot be mortgaged or pledged; therefore usual sources of private capital often reluctant to support FN initiatives

Governmental support programs piecemeal and ad hoc…

Band Politics Under the Indian Act, chief and

councillors hold office for two years High rates of turnover leads to continuity

problems; presents serious challenges for business planning

Also frequent uncertainties about who owns and controls the business enterprise

Therefore need to separate politics and business

Water Quality and Sanitary Testing On South Coast, many potential sites

unsuitable due to fecal contamination On North Coast, many potential sites

are remain to be surveyed; federal water quality and biotoxin testing not available

The North Coast Water Quality and Biotoxin Monitoring Program

Capacity Building Many FN communities are small,

isolated and have only modest business management capacity

Shellfish expansion presents many challenging technical and business issues

Therefore need to build capacity through education, joint ventures and cooperative enterprises

Regulatory Framework FN shellfish operators face same

regulatory hurdles as non-FN operators; also face additional complexities

associated with the Land Act tenuring process & the potential involvement of DINF

Once again, this underscores need for joint and cooperative ventures…

Future Research: New Zealand I

An instructive jurisdiction for comparative purposes

Unlike B.C., New Zealand is subject to comprehensive treaty (the 1840 Treaty of Waitangi)

Also home to thriving fin and shellfish fisheries (wild and farm)

Future Research: New Zealand II In recent years, significant progress made

towards addressing breaches of the Treaty of Waitangi including:

Estab of Treaty of Waitangi Claims TribunalAllocation of approx one half of wildstock commercial quota to Maori fishers or Maori-controlled fishery operatorsOngoing negotiations over allocation to Maori of rights to shellfishery

Research Questions Maori participation in fishery sector: a sectoral analysis of the

role of the Maori and their relationship with other sector stakeholders

Maori governance and the business of shellfish aquaculture: ownership and management issues re: coastal zone resources

The scope and nature of Maori rights at law: how are rights to the resource defined and protected

Accommodating Maori traditional interests: resource allocation, coastal zone management and treaty compliance mechanisms