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
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