This was sent by Bill Otway a couple of days ago.
Update on Cheam Injunction Application
As many of you are aware, on Tuesday August 2nd Frank Kwak on of our directors from Chilliwack was made aware of a move by the Cheam Indian Band in the Chilliwack area to ask the court for an injunction to ban anglers from fishing from a major stretch of the Fraser River whenever they were fishing. This ban would apply to fishing from the shore and from boats.
Frank immediately contacted me and arranged to have the material faxed to Brian Chan’s office in Kamloops where I happened to be at the time. Brian also forwarded the information to the provincial people in Victoria and to Wayne Saito and others. Frank got the information out to many of our members and to Phil Eidsvik the Executive Director of the Fishermen’s Survival Coalition. Phil immediately saw the implications of this action to all fishermen and went to work immediately to counter the claim. At the time the court hearing was supposed to be held in Victoria the next day, August 3rd. Phil spoke to the lawyers and was advised that there would be no action prior to Friday August 5th. Subsequently we were advised through Phil that in fact the hearing would take place in B.C. Supreme Court on Friday.
Frank Kwak worked very closely with Phil as by this time I was on the road to Elkford for a memorial event for one of my brothers who had passed away. At the same time our legal counsel, Keith Lowes was in the throes of preparing the funeral and memorial service for his wife for August 6th and so could in no way participate in a court action on August 5th in Victoria.
Phil e mailed me material from the Cheam lawyer and his draft affidavit while I was on the road and I reviewed these and worked with Phil by cell phone, (I am afraid to see my bill, actually I am afraid for my wife to see it), and settled on a course of action. Frank Kwak was working closely with Phil at this time as well as he had more specific details on the fishery than I did.
I should note at this time that Phil had agreed to go to Victoria and act for us at the Friday hearing as well as seeing to the concerns of his own members due to the probable impacts to their fisheries. Frank Kwak agreed to travel from Chilliwack to attend the hearings and assist as well. I committed the SDA to covering the expenses of both people at that time.
Despite an excellent brief by Phil and his evidence that the information put forward by the Cheam was somewhat lacking in facts and truth, the judge of the day, ruled that he was imposing an interim injunction effective that date banning fishing from boats in the areas requested by Cheam and this injunction would stay in force until the evening of Tuesday August 9th. He directed that there would be a full hearing before another judge starting on the morning of Monday August 8th and despite the position put forward by Phil on our behalf that there was no way we could prepare a defense in that time, due to the situation with our counsel who was burying his wife the next day, the Supreme Court just took the position that he did not care and the hearing would go ahead regardless if we were prepared or not. From every report I have this judge was totally biased from the start and had no intention of listening to any facts or information that was contrary to the Cheam submission. We should note that this was the same judge who rejected our application to set aside the injunction on the Qualicum River banning anglers from fishing a few years ago.
Phil and I discussed the position we were in and he was going to move ahead and do the best he could. Then he phoned to say that their lawyer, Chris Harvey was willing to come back from his holidays and attend to the matter as a personal favour to Keith Lowes. There were some travel costs involved and I agreed, after speaking to a number of our directors, to cover at least half of these. I spoke with Keith on Sunday and he said while he was prepared to attend on our behalf on Monday, he was not in any way prepared and felt we would do badly because of this. He had spoken to Chris and Phil and felt the most progressive position was for us to let Chris and Phil act for our interests but represent their constituents and make the point that the SDA was unable to participate due to his (Keith’s’) situation. This meant that if the case was lost on Monday/Tuesday we would be in a position as the SDA to apply for a set aside and another hearing as we had been prejudiced by the court action taking place when it did. We all agreed that this was the best way to go as Phil and Chris were representing our interests anyway and this gave us an additional opportunity for action if needed. Keith also worked with Phil and Chris to clarify legal points and prepared the defense in the Monday/Tuesday hearing.
I would mention here that I was speaking with Phil late into the evening of Thursday the 3rd where he was
still in his office working on the submission for Friday. I also spoke with him continuously on Sunday the 6th , again in his office where he was working to complete the final submission and coordinate the lawyers and witnesses.
On Monday Phil and Chris attended the court and as well Tony Nootebos one of our members from the Fraser Valley Guides Assn also attended to aid with an affidavit and facts for Phil. Frank was unable to attend due to an MRI appointment but he and Tony went for the Friday session.
I should mention here that I was in regular phone contact with Wayne Saito who is the independent conduit for the recreational anglers to the Provincial Fisheries Branch. Wayne was most helpful in ensuring the Province, including the Attorney General’s Department were keep appraised and he personally attended the hearings. In fact it was because of Wayne’s involvement I was able to get the results of the judgment on Wednesday morning early. Phil had dropped his cell phone early in the morning and was out of contact for me until late in the day.
I am attaching to this e mail a copy of Phil’s report on the hearing and the judgment. That we were successful this time should not make us complacent for the future. This is but the first round and we have to be ready for future rounds.
We owe a tremendous debt of gratitude to Frank and Tony and other of our members who worked so hard on this. The same must be said of our Counsel Keith Lowes and the Counsel for the Coalition, Chris Harvey. We owe an even bigger debt to Phil Eidsvik, Mike Forrest and Bob McKamey, commercial fishermen who stepped up to the plate in our defense when we were handicapped. Some of our members have wondered in the past why we are at times working so closely with the commercial sector on some of these issues, perhaps now they know and understand. The simple fact is that we have the same things at risk, the ability to fish in the future. This incident shows what we can accomplish by working together and that our differences in some issues should never overshadow those things of common interest and the benefits of working together.
This action has shown clearly that everyone needs to be far more vigilant and committed in the future. Also that the SDA cannot continue to carry the load by themselves, either physically or financially without some serious help. We were extremely lucky this time due to some very hard work by a very few people.
We need to understand that what has happened here is but the beginning. The Cheam will be back and other bands have made it clear that if the Cheam wins
they will be next to request the same restriction on the recreational anglers. There will be other court actions and other issues that will have to be dealt with. We need to be ready for these. I can see very clearly that a case can be tried to be made to close all fisheries in the approach waters as their catch reduces what comes into the Fraser and therefore impacts negatively on the native ability to catch their quota.
One of the other things I see we need to take court action on is to force DFO to
put a number and a real number on the Native catch for FSC. This is required
under Sparrow but DFO refuses to do it. We recommended it in the Williams
Rport but DFO has so far refused to take action. Without that number this
issue will go on forever.
A number of people have put their money where their mouth is and supported
the SDA in it's work particularly over this most recent action. We need a stronger legal backup fund so that we never get into a situation like this in the future.
We must continue to work closely with the commercial sector and any other group that has similar concerns and interests but we cannot expect to have them bail us out on a continuous basis. We need to be able to stand up for ourselves and that means a strong fund of dollars as well as people working on all our behalf.
I urge you to send your cheques, money orders or credit card donations to the address listed above. With your help we will be strong in the future and Phil and the coalition will be working with us rather than having to do the key work for us.
I would also remind all that we are holding a fund raising dinner in Chilliwack at the Best Western Hotel on November 18th. Tickets can be ordered through Frank Kwak at 604 792-8083 or Norm Fletcher at 604 942-0371. Tickets are $50 each.
Also we need trips and or merchandise items for the auction and raffles. Remember, your donations will help to ensure there is a future for our fishery.
I would like to close on a personal note of appreciation to all who worked so hard on the successful effort. I can say it was most frustrating to be so far from the action at this critical time, but it was a great comfort to know we had such competent people working on our behalf.
Bill Otway, President
Sportfishing Defence Alliance