Supreme Court refuses to hear appeal of B.C.’s non-native salmon fishermen
BY CHRISTIE BLATCHFORD, POSTMEDIA NEWS DECEMBER 21, 2012
For two decades, ever since the introduction to the salmon fishery on British Columbia’s Fraser River of something called the Aboriginal Fisheries Strategy, or AFS, this splendid man and his fellow non-native fishermen have been fighting a losing battle for fairness.
Cut to the short strokes, the issue is this: For years, the non-native fishermen (an ethnically diverse group, by the way) obediently tied up their boats while aboriginals were allowed to catch fish for their so-called Food, Social and Ceremonial (FSC) fishery.
Everyone on the dock knew the FSC fishery was a sham, because by expert reckoning even the courts acknowledge more than 90 per cent of the fish was feeding neither aboriginal families nor cultural ritual, but rather was being illegally sold.
But senior officials at the federal fisheries department (then and now and forever more known as the DFO though its name has changed) called off its fishery officers and ordered them not to charge aboriginal poachers — not to enforce the law evenly, in other words.
In 2001-02, Eidsvik et al. challenged the scheme by holding a token “protest fishery,” the goal to force DFO to charge everyone, and, when predictably it didn’t, to argue that their rights to equal treatment under the law were being breached.
“We always expect to lose,” he said.
Yet Eidsvek is fundamentally an optimist, and a few words in every previous decision — the courts would rule against him but usually find real merit in the argument — would set his heart to racing.
This was particularly true at the B.C. Court of Appeal, where, he wrote me with trademark humour afterwards, the court “had a much better grasp of the principles at stake than the courts below despite only having this matter in front of them for just a couple of hours… Strange that despite our long string of losses for reasons which are blatantly wrong, I have more respect for the courts today than I did when we started this 20 years ago — I must be psychologically damaged or awed by pomp and circumstance.”
As recently as last week, he sent me a cheerful email, excited because the clerk in Ottawa who phoned to tell him when the SCC decision was coming down “sounded upbeat, like he was bringing me good news.” Even as he wrote that, he tried to quash the hope that rose in his throat: “I tend to read too much into signs,” he said. “He (the clerk) probably does not even know what the ruling is, and the good news is that a ruling is due.”
Now, near as he can tell, Eidsvek and his fellow fishermen are out of options.
They’ve launched orderly protests — this is called civil disobedience, when groups the government regards with approval do it.
For these actions, they were charged and convicted of Fisheries Act offences.
They appealed those convictions to B.C.’s high court and finally to the Supreme Court, losing every time though virtually every court but the last one has agreed with them that the “DFO has permitted and is permitting what amounts to a commercial fishery by aboriginal groups and persons” and with experts who say that this has been a “significant contributing factor” to the province’s so-called “missing” salmon.
They have testified in courts, told their stories to anyone who would listen, and often with Eidsvik — who is not a lawyer but could pass for one now, albeit as an unusually humble specimen — in the lead, submitted smart, respectful and cogent legal briefs.
Some of their number, the indefatigable Eidsvik key among them, even sat in and suffered the interminable hearings of the Cohen Commission of Inquiry in Vancouver, the first full-blown federal inquiry into the missing fish.
This commission produced its final report in the fall of last year, spending $26-million in the process and barely acknowledging the failures of the DFO to enforce the rules evenly.
Like the non-natives in Caledonia, Ont., who to this day find themselves being arrested by the Ontario Provincial Police while attempting to walk on the former housing development that was the site of the often violent aboriginal occupation of 2006 when native lawlessness was tolerated, B.C.’s non-native fishermen, and the rule of law, are firmly under the bus.
The real test for the courts was and is whether race-based policing and enforcement, on land or at sea, brings the administration of justice into disrepute. It did, and it does, but as Eidsvik says, “No one wants to bell the cat,” certainly not government, and now, we know, not the courts.
The Supreme Court case that got all the attention was the so-called “niqab” case, involving the Muslim woman who wanted to wear her face veil while testifying.
The end of Eidsvik’s long battle deserved attention, and he Canadians’ thanks. What he and the rest of them got, from their unique vantage point flat on their backs on the road, was the sight of the wheels of the bus passing over them again, one last time.
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