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Author Topic: Which historical legislation allowed FN to fish for food/social/ceremonial?  (Read 854 times)

silver ghost

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Does anyone know which act of legislation allows First Nations fishing rights before commercial and receational? I'm hoping to find out the original treaty or legislation that gave rights to FN for fishing for food, social, and ceremonial purposes and the like.

I'm doing a paper on fisheries mismanagement and wondered if anyone knows what, if any, formal law exists that puts aboriginal rights first before anyone else when it comes to fishing and fish allocation, or if it was just a case decision, etc. because i'm planning on discussing/recommending potential changes to such legislation

thanks in advance
« Last Edit: November 16, 2011, 05:35:41 PM by fishunter »
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StillAqua

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For the food fishery history you want Doug Harris' book chapter.
http://www.ubcpress.ca/books/pdf/chapters/2008/LandingNativeFisheries.pdf
He testified at the Cohen Commission and there's probably a lot more info on the transcripts portion of their website.

For legal stuff, try these:
http://www.admiraltylaw.com/fisheries/aboriginal.htm
http://www.parl.gc.ca/Content/LOP/researchpublications/bp428-e.htm
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hotrod

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Queen anne's order in council 1704 Moheegan Indians vs the Colony of conneticut

King George r Thirds Royal Proclamation of 1763

These are binding imperial laws on all the canadian subjects! HINT: Do not assume that all Indians are canadians....they're not
   hotrod
ucc 1-207
« Last Edit: November 21, 2011, 06:48:01 AM by hotrod »
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troutbreath

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  • I does Christy

"Do not assume that all Indians are Canadians"

It probably didn't hurt overhall to have a extended lifespan after the conqueror's showed up. I don't think it was all that tickity-boo when the differant tribes were battling over hunter gatherer turf. No differant than the Romans bringing Britain out of the tribal age and establishing institutions to advance personal well being. Change can be good you know.

American Indians got a differant deal where they were truly conquered and ceded all rights to the battle loss. Those Indians suffered more and lost more. South American Indians got a good whacking by them Spanish types. I bet some of them wish they ended up like what happened in Canada. Anyway if you really want to identify yourself by race as a priority it's most likely to irritate other culture/ races etc.
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Sandman

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Does anyone know which act of legislation allows First Nations fishing rights before commercial and receational? I'm hoping to find out the original treaty or legislation that gave rights to FN for fishing for food, social, and ceremonial purposes and the like.

I'm doing a paper on fisheries mismanagement and wondered if anyone knows what, if any, formal law exists that puts aboriginal rights first before anyone else when it comes to fishing and fish allocation, or if it was just a case decision, etc. because i'm planning on discussing/recommending potential changes to such legislation

thanks in advance

It was the Sparrow Case.   In 1990, Ronald Sparrow, a Musqueam, appealed his conviction on a fisheries charge to the the Supreme Court of Canada, which ruled that First Nations have an aboriginal right as defined in the Constitution to fish for food, social and ceremonial purposes and that this right takes priority over all others except conservation.  In overturning Sparrow's conviction, the court ruled that Section 35 of the Constitution Act, 1982, the section that recognizes and affirms existing aboriginal and treaty rights, provides "a strong measure of protection for aboriginal rights" and any proposed regulations that infringe on the exercise of those rights must be justified. The court ruled that:
   
  • Aboriginal and treaty rights are capable of evolving over time and must be interpreted in a generous and liberal manner;
  • Governments must regulate existing aboriginal rights only for a compelling and substantial objective such as the conservation and management of the resource; and
  • After conservation goals are met, aboriginal people must be given priority to fish for food, social and ceremonial purposes.
The Sparrow decision the Supreme Court of Canada then, in addition to setting First Nations rights over all other except conservation, also re-affirmed the principle that aboriginal rights contained in the Canadian Constitution must be given a generous and liberal interpretation.

There is, of course, no "original treaty" to refer to as there were no treaties signed in BC (other than a few small ones on VI) until the Nisgaa deal.  The Constitution Act of 1982 was enshrining the rights recognized by Canadian common law (the Royal Proclamation is  usually recognized as an extension of common law, rather than as a source of legal rights in and of itself).  In defining Aboriginal rights, other than Aboriginal title (to Land), the Supreme Court of Canada has held that claimants must prove that the right was an integral part of their distinctive indigenous societies prior to European contact.  While these rights may be now exercised in a modern way, practices that arose from European influence are not protected. This paradox is best demonstrated in reference to the commercial trade in furs or fish, which the courts have seen as the product of European contact rather than integral to Aboriginal societies prior to contact. Fishing for food, community or ceremonial purposes is, however, a protected Aboriginal right and as such may be exercised in a modern way with modern fishing equipment.
« Last Edit: November 16, 2011, 09:46:47 PM by Sandman »
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Sandman

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It probably didn't hurt overhall to have a extended lifespan after the conqueror's showed up.

Given that 70-90% of the population of most First Nations villages were wiped out by disease "after the conqueror's [sic] showed up,"  I think the "extended lifespan" argument would be lost on most aboriginals.  I hope you are not suggesting that the aboriginal societies (like the tribes of Britain) would not have developed on their own without European (Roman) contact?  Contact only sped up the rate of development (Western Civilization developed in strides due to contact between civilizations (the Babylonians learned from the Sumerians, the Egyptians learned from the Babylonians, the Assyrians learned from whomever they conquered, as did the Romans)the Europeans learned from the Arabians and Chinese, but the American Aboriginals were isolated from such exchange of ideas and so their development was slower, although the Central American civilizations (with their more agrarian economies) were much more advanced than the hunter gatherers societies to the north.  European contact dragged the American Aboriginals into the modern era, but that did not mean their rights were forfeit.  You are right that they were not conquered, and beyond that King George (the conqueror) recognized their title and rights to the land he was now claiming sovereignty over.  He specifically stated that any aboriginals had to given up their title (in a treaty) before his subjects could settle in the territory in which they lived.  Since this was never done in BC, Aboriginal rights and title here have never been extinguished.  It is a wonderfully complicated conundrum.
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silver ghost

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Thanks guys that's awesome, those are solid cases which I will most definitely use. Much appreciated
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troutbreath

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  • I does Christy

Like most europeans I'm the survivor offspring of those many plagues. It's not like we got off scott even. Lost a few people too eh.
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blacktail2

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I have a feeling that this thread has the potential to get a little heated. I have read the entire thread and there is a couple of good replies to your question. I will make an observation here, who was here first and what did they eat and where did they get it from? Just because many first nations were wiped out with small pox and residential schools etc their offspring never gave up their inherent right to fish or gather food. This point is no different from the early white settlers, what did they eat? Where did they get it from? and we have not given up that right to harvest in a sustainable manner with in the guidelines the ministry of environment has set out that we should and must abide by. I go back to the comment i made who was here and settled first ?

I think the idea of doing an article or paper of fishery mismanagement is a great idea but as with any group you are always going to get a bad apple or two. Realistically fishing of any type or killing any fish adds to the issue you are writing about every fish that is taken is just that one less fish swimming up the river to reproduce. Do we know for sure after playing a wild steelhead on a noodle rod that it goes off and survives, no we don't we hope and are lead to believe it does. I was a commercial fisherman for many years and i guess that fact alone i have contributed to the decline in salmon, halibut, crab, prawn stocks. I made my living this way for many years and was proud of it. But looking back i guess i was part of the problem as were many others right down to the people processing the fish, selling the ice and fuel and the gear manufactures. I have seine fished for many years and have seen many many big sets, now by that i mean well over 20k fish in one set, fellas i gotta tell ya this is where the decline in the salmon stocks started with the invention of the almighty purse seiners (Curtain of Death). These boats are far too efficient and played a major part in the decline of every ones fish stocks. I think what they need to do is totally shut the commercial end of things down and let the stocks build up and this will take many many years. Another part of this equation is politics, money etc. I can think of one man whom owns well over 100 seiners yes thats right over 100 with the licences needed to fish the entire BC coast with his hands in several other very lucrative endeavours.

I dont want to nor will i start pulling a race card here,but before we start casting too many stones lets all take a walk down to the CHEDDER and have a look around at the BC electric bridge see who's snagging, flossing and what race they are ? Lets have a look at the people filling coleman coolers with half rotten pinks (something i wouldn't feed my dog) only to return again with an empty cooler. What about all the snagged springs, i sat and watched at the bridge for a couple of hours this year and was disgusted with the number of snagged springs with probably less that 10 % released and the lack of enforcement on the river.

So in closing i have been very respectable here not singling out one race over but i think i have made some very very valid points in this reply. I am not going to say i have never accidentally foul hooked a fish but when i did it WAS RELEASED quickly and gently as possible.
                                                                                                           Cheers guys lets keep this respectable
and good luck with your article.
« Last Edit: November 17, 2011, 09:55:10 AM by blacktail2 »
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silver ghost

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I can think of one man whom owns well over 100 seiners yes thats right over 100 with the licences needed to fish the entire BC coast with his hands in several other very lucrative


CanFIsCO / Jimmy Pattison   :D

I should not have mentioned the topic of my paper as 'fisheries mismanagement', I should have left the question as it was  ;D

Make no mistake, I am compiling a plethora of arguments, and through reading the article from the UBC site, as well as the cases that outline the constitutional right, I have generated a better understanding why things are the way they are; everything comes with it's uinique set of circumstances. I am not saying FN fishing is mismanagement, as I know this isn't the main issue behind the problem, but some FN methods are most definitely not the solution, either. This being said I have observed FSC fisheries before, and the guys doing the harvest were respectful of the rules as well as the fish; they were beach seiners - a selective method. I have not observed commercial operations, but some of their methods harvest fish indiscriminately. I'm not going on an Alex Morton style crusade to point fingers towards any groups, I am just making sure I have my facts straight  :P

cheers and many thanks

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silver ghost

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Re: Which historical legislation allowed FN to fish for food/social/ceremonial?
« Reply #10 on: November 17, 2011, 12:39:57 PM »

Now that we're on the topic of legislation, I am confused by the difference between the federal fisheries act and the provincial water act. It seems like the water act does not give fish the right to water, but the federal fisheries act does? So then wouldnt the federal fisheries act still effectively give fish in any province the right to water, since federal trumps provincial? its kinda weird in that sense
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