Shellfish Aquaculture and B.C. First Nations

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Shellfish Aquaculture and B.C. First Nations. Chris Tollefson University of Victoria, Faculty of Law April 2003. Acknowledgements. Research done during Summer 2002 by Alyne Mochan & in the Fall 2002 by Katherine Deo - PowerPoint PPT Presentation

Transcript of Shellfish Aquaculture and B.C. First Nations

  • 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 Imany coastal First Nations regard shellfish aquaculture as a promising economic, and culturally appropriate opportunitymany coastal First Nations suffering economically, especially with downturns in wild fishery and forestry opportunitiesover 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 ExpansionTreaty and Claims Settlement ProcessTenure Acquisition under provincial authorityOther Issues:Parks and protected areasDuty to consult (role of local governments; tenure holders)

  • Operational Challenges for First Nation InitiativesAccessing FundingCommunity PoliticsWater Quality and Sanitary TestingCapacity buildingRegulatory barriers

  • First Nation Rights and Shellfish Aquaculture Expansion: IMost of coastal B.C. remains untreatied; Douglas Treaties (1850s)Nisgaa 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: IIIf 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 practiceAboriginal rights may exist independently or alongside aboriginal titleMany 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: IIITreaty and claims processes are slow, expensive and cumbersomeLitigation route presents especially daunting evidentiary challengesLittle headway being made with exception of a few breakthrough tablesFor 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:

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

    Land Act Memo of Understanding (section 17)

  • Pilot Beach InitiativeAdvantages: quick turnaround; helps to develop capacityDisadvantages: Still entails a referral processLack of suitable sites; vagueness of adjacency requirementLack of suitable sites due to marine pollution

  • Land Act: ILand Act allows Crown to allocate foreshore resource tenuresLWBC has identified areas for FN shellfish tenures under an MOU process; allows for FNs exclusive right to apply for such tenures for 10 yrsAvg size of sites is 30 to 60 hectaresOver a dozen FN have entered into such agreements

  • Land Act: IIAdvantages:Exclusive right to applyWithout prejudice to rights acquired later by way of treaty or litigationDisadvantagesFN 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 ConsultWhere a resource use/allocation decision may affect FN rights or title, a constitutional duty to consult is triggeredThe scope of this duty is constantly being reviewed & redefined by courts/governmentKey problems include: - what consultation means (how much of an affirmative duty does it entail- to whom does the duty apply?

  • The Duty to ConsultHow 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 prevailThe same would likely be true even if shellfish tenures were protected under the Agricultural Land ReserveHow 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 InitiativesAccessing FundingBand PoliticsWater Quality and Sanitary TestingCapacity DevelopmentRegulatory Framework

  • Accessing FundingFN communities lack the usual means of accessing startup capital due to legal status of FN land holdingsReserve lands cannot be mortgaged or pledged; therefore usual sources of private capital often reluctant to support FN initiativesGovernmental support programs piecemeal and ad hoc

  • Band PoliticsUnder the Indian Act, chief and councillors hold office for two yearsHigh rates of turnover leads to continuity problems; presents serious challenges for business planningAlso frequent uncertainties about who owns and controls the business enterpriseTherefore need to separate politics and business

  • Water Quality and Sanitary TestingOn South Coast, many potential sites unsuitable due to fecal contaminationOn North Coast, many potential sites are remain to be surveyed; federal water quality and biotoxin testing not availableThe North Coast Water Quality and Biotoxin Monitoring Program

  • Capacity BuildingMany FN communities are small, isolated and have only modest business management capacityShellfish expansion presents many challenging technical and business issuesTherefore need to build capacity through education, joint ventures and cooperative enterprises

  • Regulatory FrameworkFN 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 DINFOnce again, this underscores need for joint and cooperative ventures

  • Future Research: New Zealand IAn 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 IIIn 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