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[Old Black Dog]

By Robert Freeman
The Progress
rfreeman@theprogress.com
Mar 21 2006

This will be a "critical year" in the fight for sport fishing rights, Sportfishing Defence Alliance president Bill Otway said at the annual general meeting of the Fraser River Salmon Society last week.
He said court cases that challenge the fishing rights of sports fishermen will cost the alliance about $400,000 over the next two years.
The federal government pays the cost of court cases that test aboriginal fishing rights, but Otway said the government spends "not one thin dime to protect our rights."
An appeal of a B.C. Supreme court ruling last month that overturned lower-court convictions of four Cheam First Nation fishers is the "most critical" case facing sport fishermen, Otway told the FVSS members.
After the meeting, he explained that if the appeal is lost, it could spell "the end of recreational fisheries in B.C." because the B.C. Supreme Court justice had ruled "in essence, unless the (native fisheries) are open there can be no other fisheries."
The B.C. Supreme Court Justice found that the Crown had failed to prove that closing the river to native fishermen was justified, and that it did not accord the aboriginal fishery the priority it is guaranteed by the Constitution and the earlier "Sparrow" decision reached by the Supreme Court of Canada.
Sport fishermen claim the "right" to fish enjoyed by all Canadians under general provisions of the Constitution, which is based on
historic principles set out in the Magna Carta of 1215.

While First Nations fishers have a specific, constitutionally protected right to fish for food, societal and ceremonial purposes, Otway said that under the Constitution natural resources like fish "do not belong to the government, they belong to the people of Canada."
Other court cases that sport fishermen will challenge through the alliance involve a pilot program allowing native fish sales and attempts to control fisheries in traditional territories claimed by three First Nations in northern B.C.

[Sam Salmon]

We go through this bull several times a year here

There Is No Right To Sportfish!!!!!

There is also no right to grow roses, work on old cars or play broomball!!!!

Some lawyer has his hooks into a bunch of politically naive people who are quite mistaken about the place their recreational pastime has in Canadian society.

When will they ever learn?

[Sam Salmon]

Well S/S,  I think if you buy a license and have the right stamps you have the right to fish.

Well Bill what you think and what the law allows are 2 different things.

In Fact-acquiring a license for a fee allows you the privilege to fish-there is no right to Sportfish nor is this imaginary right mentioned anywhere in the Regs.

[Sam Salmon]

In Fact-acquiring a license for a fee allows you the privilege to fish-there is no right to Sportfish nor is this imaginary right mentioned anywhere in the Regs

That's what I posted Bill-read it yourself-no rights mentioned anywhere.
As it happens I just picked up a copy on this years regs-no mention of rights there either.
What part of NO don't you understand Bill?

[Ribwart]

Wow, what a contentious issue!!! Having read the initial post by old black dog, this subject obviously illicits a reaction from all sides.... It is absolutely, unequivicably clear that First nations have a right to fish....I cannot and will not dispute that, nor do I feel any need to....what does bother me somewhat is the rather emphatic statement that "There Is No Right To Sportfish!!!!!"...In saying so I get the impression that it implies we should not be considered a part of the many factors that impact the future of this resource. It is obvious that we, as recreational fishermen do not enjoy the same rights as first nations do with regards to fisheries resources, but I hope that Sam Salmon is not implying that as citizens of Canada, we do not have the freedom to enjoy our resource, nor do we have the right as a special interest group, to express our opinions on issues that may influence the future of this resource...nor take any action we feel necessary to protect it. I think the real problem here is that we all have a stake in our fisheries, and instead of bickering over who has the "right" to fish, we might try and work together to manage this resource in a responsible manner? The First nations, commercial and recreational fisheries all have significant impacts on the stability and longevity of this resource and it would be naive of any one group to assume their interests take priority over any other. How can anyone, first nations, rec fisher or commercial presume that the other groups interests don't matter? That's irresponsible at best. So, why don't we try and address the issue brought up in the original post? If certain fisheries are closed to protect stocks, then obviously this is done with the best interests of the fish in mind, not the interests of the first nations, nor the rec fishers, nor the commercial fisheries!!! Now, I haven't researched the exact circumstances regarding the lower court convictions of those first nations fishers mentioned in old black dog's post, but if I recall correctly, wasn't the river closed to everyone for that short time? Although I think it is somewhat alarmist to presume that their actions will spell the end of recreational fisheries in BC, I also think that if it were recreational fishermen that were charged, convicted and then had a reversal of the conviction by supreme court, while first nations had observed the closure of the fishery, then I'm sure there would also be an uproar over these circumstances from that interest group! And deservedly so....
I think that if this resource is going to hopefully one day be managed in a trully responsible manner, then there must be some integrity to the laws put in place to protect it. Where the best interest of the resource is put first, and above the interests of the groups that utilize that resource. If the first nations and recreational and commercial fisheries ignore the impact and interest of each of the other groups, then any management of this resource they attempt will have serious holes in it, and will be ineffective to say the least. Similarily, if any of the groups concerned begin to ignore closures and other efforts to protect the resource, then the integrity of the laws put in place to protect it is comprimised and then again management of the resource becomes ineffective. So what is the point in debating who has the right to fish? We all have that right in my opinion! Regardless of what is specifically written in the constitution...And all of us are going to fish whether someone feels we have the right or not...I think this is similar to the circumstances that caused first nations to fight for their "rights" to fish to begin with-because someone else failed to recognize their right! How is that any different from any other interest group? Instead of compounding a problem by debating who has rights, what we should be debating is how best to protect the resource, not fighting over the last scraps at the table and pointing fingers of blame in every direction but our own.

[Old Black Dog]

An appeal of a B.C. Supreme court ruling last month that overturned lower-court convictions of four Cheam First Nation fishers is the "most critical" case facing sport fishermen, Otway told the FVSS members.
===============================================================

It has been learnt that DFo will appeal this case.

[ko]

just wondering why first nations get to fish whenever they want kill deer , moose ,and other big game whenever they want,blockade roads whenever they want go to work and not pay taxes,while the person beside them, pay taxes coming out of there you no what ,i dont understand why the government,even put up with the whining, and complaing about their rights , personaly just because some guy signed some treaty or what ever it was years ago, that the people of today have to pay and put up with the bull---t, of their rights, next time there is a road blockade, i say block them in,its my road that they are driving on now, that they dont pay taxes for.

[Eagleye]

Now don't get me wrong, I'm by no means agreeing with the actions of the natives but I think the reason they can get away with almost anything is because our lovely government has never actually settled with them in the form of a treaty.  The natives were here before us, we came and settled on their land and have yet to sign a treaty with most of them.  I'm glad to see the government and first nations have made at least some effort in the last 10 years to form some treaties, but I'm not at all in agreement with the allotment of fish proposed in the Yale treaty. Cash/land settlements are good and long over due but we should not have to give up our sockeye fishery to appease the natives.  Sure they should be able to catch some for food but this must be within reason.  We can't possibly expect them to eat close to 3lbs of sockeye a day everyday of the year and that's not including the other types of salmon they catch.  Some of them don't even eat fish!  I had a conversation with a native lady up in hope and she said her kids don't even eat fish, they can't stand the smell of it and would rather have a burger from McDonalds.  So I'm sure there are many others out there that are the same.  The sparrow decision, giving the natives first priority for food, social, ceremonial purposes is somewhat understandable, but it must stop there.  Their FSC allotment must be within reason and their catches counted so that it cannot be used as an excuse to catch fish for the black market thus giving them first priority for commercial purposes, which was not part of the sparrow decision. You mention not paying taxes, I believe with their treaty the Yale band is obligated to pay taxes.

[Ribwart]

It has been learnt that DFo will appeal this case.

Good! So they should!!!! Hopefully, the courts will recognize the kind of precedent they might be setting.... I think it's critical that the courts back up any arrests/charges brought to bear by fisheries and conservation officers, otherwise, I guess its obvious the kind of message it sends to ANY fisherman, whatever their loyalty.... The future consequences of this type of case could just turn this whole debacle into a something the courts might never have anticipated....2 steps forward, 3 steps back.

[Xgolfman]

Again, we won the battle but lost the war...

[Eagleye]

There Is No Right To Sportfish!!!!!

It appears we DO have a right to fish but DFO refuses to recongnise it.
Here are some references to our right to fish outlined by Bill Otway

Page 1
Mr. Pat Chamut, Senior Asst. Deputy Minister December 28,2002
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Dear Pat:
It was a pleasure to see you again and have a chance to talk during the 2002 Sockeye
Review.
During the course of the discussions with those of us in attendance you commented on
remarks one of the participants made regarding “Sparrow” and angler “rights”. Also as I
am given to understand, on the previous day you advised the commercial sector
representatives that the only people with a “right” to fish were the Indians and for the rest
of Canadians fishing was a “privilege”.

While for my part it did not seem productive to enter into a discussion on this issue at that
time, I did indicate that there was a need to deal with it. In fact if your view represents
that of the Department in general, then it is critical the matter be clarified. Unless and
until the Department and the Government recognize that all Canadians hold “a right to
fish”, our fishery will never be properly managed and our “rights” will continue to be
infringed upon and marginalized.

The facts are clear that we as citizens of Canada do indeed have a “right” to fish. These
were clearly stated and pointed out in the report commissioned by DFO on the subject
from Dalhousie University in 1985. This report, “Individual Entitlements In The Tidal
Fisheries: Some Legal Problems” repeatedly identifies the public “right to fish”. In
addition we have the 1996 judgement from the Supreme Court of Canada in R. v.
Gladstone.

With regard the report, I would refer you to Page 48, 1
st
para. “Chief Justice Ritchie held
that a public right to fish only applied to tidal waters, this was a right derived from the
common law.”
Page 53 – Supreme Court of Canada Chief Justice Strong with regard the right fish in
navigable lakes and non-tidal navigable rivers and the limitation of the power of
parliament of the Dominion to legislate respecting the fisheries in those waters.
“Secondly – so long as the property in the beds of this class of river remains ungranted
the right of fishing in such waters belongs to the public as of common right.”
Page 54 – Again SCC Chief Justice Strong regarding licenses. “Such licenses must,
however, be purely personal licenses conferring qualification, and any legislation
going beyond this and assuming to confer exclusive rights of fishing (subject to
exception as to waters belonging to the Dominion and waters within the confines of
unsurrendered Indian Reserves) unconstitutional and void.”
------------------------------------------------------------------------
Page 2
2
Page 55 – “wherever the exclusive right of fishing does not already exist by law; and
there are to be leases as well as licenses; language which indicates an intention to
authorize the Minister to confer by means of such licenses exclusive rights of fishing.
This I hold to have been beyond the jurisdiction of Parliament to enact so far as
provincial waters are concerned and within the expression ‘provincial waters’ I include
all navigable waters within the boundaries of the province whether tidal or non-tidal,
excepting only such waters as belong to the Dominion…”
Page 57 – Chief Justice Wilson states “But as to tidal waters the Supreme Court of Nova
Scotia, Hill J., adopted the principles of the English and held in Meisner v. Fanning that
the Crown cannot grant the waters of a navigable arm of the sea as to give a right of
exclusive fishery therein.”
In Rose v. Belyea, the Supreme Court of New Brunswick held that:
“The soil of a public navigable river (in this case the St. John River, within the ebb and
flow of the tide) is in the Crown, and the right of fishing belongs to the public. Since
Magna Charta the Crown cannot grant the exclusive right of fishing in a public navigable
river to a private individual.”
And in The Queen v. Lord, Peters J. delivering the judgement of the Supreme Court of
Prince Edward Island said:
“With respect to these public rights viz., navigation and fishery, the King is, in fact
nothing more that a trustee of the public, and has no authority to obstruct or grant
others, any right to obstruct or abridge the public in the free enjoyment of them.”
Pages 64/65 – “The B.C. Fisheries Reference was a decision rendered by the Privy
Council which dealt with fishing rights within the railway belt. It is of special interest
because the Province of British Columbia wanted to alter the public right to fish in tidal
waters.” Viscount Haldane noted: “ Since the decision of the House of Lords in
Malconlmson v O’Dea [ 10 H.L.C. 593] it has bee unquestioned law that since Magna
Charta no new exclusive fishery could be created by Royal Grant in tidal waters, and that
no public right of fishing in such waters then existing, can be taken away without
competent legislation. This is now part of the law of England, and their Lordships
entertain no doubt that it is part of the law of British Columbia.”
Viscount Haldane went on to speak of the public right to fish and stated:
“The legal character of this right is not easy to define. It is probably a right enjoyed so
far as the high seas are concerned by common practice from time immemorial, and
it was probably in very early times extended by the subject without challenge to the
foreshore and tidal waters which were continuous with the ocean, if indeed, it did not in
fact first take rise in them. The right into which this practice has crystallized resemble in
some respects the right to navigate the seas or the right to use a navigable river as a
highway, and its origin is not more obscure than that of these rights of navigation.

[Eagleye]

------------------------------------------------------------------------
Page 3
3
Finding its subjects exercising this right as from immemorial antiquity the Crown as
parens patriae no doubt regarded itself bound to protect the subject in exercising it, and
the origin and extent of the right as legally cognizable which gradually came to be
recognized as recognizing a legal right enforceable in the courts.”
“ In the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the
public have the right to fish, and by reason of the provisions of the Magna Charta no
restriction can be put upon their right of the public by an exercise of the perogative in the
form of a grant or otherwise.”
“In summery their Lordships stated that:”
“The right to fish is in their Lordship’s opinion a public right of the same character as
that enjoyed by the public on the open seas. A right of this kind is not an incidental of
property, and is not confined to the subjects of the Crown who are under the jurisdiction
of the Province’”
Page 103 – “After 1215 A.D. the Crowns’ rights to own the foreshore and to give it away
remained intact but, no longer could the public’s rights of fishing and navigation be
expressly excluded in a grant of the foreshore.”
“From time immemorial all British subjects have had the ‘natural right’ to fish in
all tidal waters.”
Page 104 – “Specifically exempted from the common right of fishery was the right to
take whales, sturgeon and porpoises.”
Page 108 – “Hence in all cases, the rights of the public in the sea and its shores are
prima facie and must be treated as a ‘natural right’;…”
“The common right of fishery extended to both floating fish and shellfish below the
high water mark. In order to exercise its rights to take shellfish between the high and
low water marks, the public could dig in and rake upon the shore. However, the public
was not permitted to take shellfish shells, mussel mud or seaweed from privately-owned
foreshore. Only the fish could be removed.”
“At the time of Confederation, English law held that the common right of fishing
existed prima facie in all tidal waters except where there existed an express grant of an
exclusive fishery. In the case law since the Magna Charta it bad been determined that a
grant of the foreshore made before the Magna Charta had to include express reference to
fisheries in order to pass the grantee an exclusive right of the fishery.”
Page 137. “2. Because the public right to fish is in fact a right recognized by the
common law, express legislation is required to extinguish or modify it. This is based on
normal principles of statutory interpretation. Thus if the individual entitlement scheme
------------------------------------------------------------------------
Page 4
4
extinguishes or modifies the public right to fish, this should be done expressly, i.e. by
express statutory authorization, and not by administrative decision-making.
Page 150. “The fourth point can be answered quickly. The public right to fish is a
common law right which should be affected only by express legislation. Therefore, if it
can be taken away, it should be done by legislation. In Gurin 303 the Supreme Court
indicated that the federal government can be subject to fiduciary obligations, and so may
be open to legal proceedings if the fiduciary obligation is not removed by legislation.”
And most recently in R. v. Gladstone – 1996 – Lamer C.J. held: Para 67 “ It should also
be noted that the aboriginal rights recognized and affirmed by s. 35 (1) exist within a
legal context in which, since the time of the Magna Carta, there has been a common
law right to fish in tidal waters that can only be abrogated by the enactment of
competent legislation.” “…however the recognition of aboriginal rights should not be
interpreted as extinguishing the right of public access to the fishery.”
The bolding is mine in order to outline the fact of the public “right to fish” does exist and
must be recognized and taken into account in the management of the fisheries. I would
remind you that with the Indians the Department also took the position that there was no
“right” to fish and indeed if there was it had been extinguished by legislation then
existing. The Supreme Court of Canada has made it abundantly clear that such was not
the case. At the same time they have recognized the general public right to the fishery. I
strongly urge yourself and your colleagues in the Department rethink your current
attitude in this matter.
The choice is clear, we either move forward in full recognition of our rights to develop
and manage fisheries to the benefit of all or we spend some time an a great deal of money
making the lawyers richer. The end result will be the same except that the resultant rancor
and bad feelings generated with a court action is not a good basis to begin a cooperative
programme.
I wish you the very best in the New Year and hope we see this begin with the former
effort indicated in the paragraph above rather than the latter.
Yours in conservation.
Bill Otway
1635 Taylor Street
Port Coquitlam, B.C.
V3C 4G6
Cc – Members SFAB

[Old Black Dog]

DFO understands that there is a right to fish, however the Government is considering changing the law to take this right away.

If they do that then they can allocate fish to whomever they wish.

If they do that then you could loose your present rights to fish as they could allocate this to other groups.

Then if these other groups were willing to they could SELL you some of there quota so you might fish.

Be very concerned.

[Prettyfly]

I think being angry about something and blathering on about how the judicial system isn't fair to you and seems bias to native fisheries is futile.

I read here someone had a conversation with a first nation woman that her children don't even like fish.. well.. there you have it. Feel fortunate that alot of natives aren't fishing.

Imagine the impact on 'your' fishery if all natives exercised their right to fish.

Unfortunately it is the few bad seeds that make the native population look bad.

I've heard of non native sport fishermen selling their catch. How many of you do that? Does it make it any more right or wrong?

Some native people just don't understand why non natives have such an issue. Catching and selling fish is as old as time. "Selling" meaning "trade" There is no difference between how things were traded then and how they are traded now, only now it is a government issued piece of paper that is the choice trade. Except if you go up north. They like to trade fruit from the interior.

How can it be justified that fishing for pleasure is more important than native fishing? Sport fishing is just that - a sport, done for pleasure. Seems pretty selfish thinking if you ask me.

So maybe we should all just take a step back from the negativity and look for positive ways to get around this.

How many native kids are going to want to use fishing as a way to earn money when they grow up. if they are taught the need for conservation at a young age? Maybe if communities were encouraged to use their knowledge and get paid for guiding rather than just fishing. Maybe if communities were shown the pleasure seemingly only non natives get pleasure from (sport fishing) they'd be more understanding. Maybe we should be working on that - understanding - instead of everyone just b*tching about each other.. it makes me want to say GROW UP!

Sometimes I think 'some' of you guys would rather cause a fight than find resolution. Native fishing rights are not the reason for there being less fish in the system - we all know that. It's just easier to blame a whole population for a few bad seeds than it is to look at our own practices and those around us. Sport fishermen not all angels either.

[Ribwart]

Now, PRETTYFLY, I can't speak for anyone else here but I have never even considered selling any fish I've caught, nor have I ever, not once, encountered a sportfisherman selling their catch, never....Now having said that, there are always exceptions to the rule....but I think nearly everyone here will agree that, if any of we sportfishermen were seen to be selling our catch by the river, or the road or wherever, we would only hope our fellow sportfishermen don't beat the crap out of us before the CO's get there to charge us and take away our truck, or gear and our souls for doing so!!!!
Now that I have that out of the way, I agree with pretty much everything you have said, although I don't think anyone here has tried to say that sportfishing for pleasure is more important than native fishing, I believe the gist of it has been that as sportfishermen, we feel that we have a vested interest in, and a love for, our resource and want to see it protected for the future, and because we place such a value on the resource, we therefore feel compelled to defend it when it has been taken advantage of....so when someone fishes during a closure, then participates in a confrontation with fisheries officers who are trying to protect the resource, you should understand the concern this causes anyone who cares....I know I wouldn't let one of the guys fishing beside me kill a wild steelhead and walk away from it, so how can the gov't let someone off when they blatently ignored the law, and then forcibly confronted the officers who enforce that law....So obviously it is a few bad apples who give the tree a bad name, it always is....but these bad apples should be used as an example of the consequences for being a participant in fisheries violations, so that future transgressions do not occur. This is what makes it hard to come to logical, intelligent solutions to the problems facing our (everyones's) resource...because there are still people out there abusing it and getting away with it!!!! So none of us are angels as you put it, but at least some of us refuse to let bad apples get away with being a part of the problem.

Ps: I have no problem with natives selling fish by the way, as long as it is within the boundaries of the law and any treatises that have been signed....and when someone here says: "our fishery" please consider they might mean "ours" as in "every canadians fishery", not just one interest group...after all it is "our" (as in everybody's) problem if the fish are all gone, so any violations by whomever, is also our responsibility to report.

Thx,
Rib