Shellfish Aquaculture and B'C' First Nations

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Shellfish Aquaculture and B.C. First Nations

• Chris Tollefson
• University of Victoria, Faculty of Law
• April 2003

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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

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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

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Overview II

• This presentation addresses two issues
• 1. First Nations Rights and Shellfish
  Aquaculture Expansion
• 2. Operational Challenges for First Nation
  Shellfish Initiatives
• Also will discuss briefly some of the research
  questions on the horizon

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First Nations Rights and Shellfish Aquaculture
Expansion

• Treaty and Claims Settlement Process
• Tenure Acquisition under provincial authority
• Other Issues
• Parks and protected areas
• Duty to consult (role of local governments
  tenure holders)

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Operational Challenges for First Nation
Initiatives

• Accessing Funding
• Community Politics
• Water Quality and Sanitary Testing
• Capacity building
• Regulatory barriers

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First Nation Rights and Shellfish Aquaculture
Expansion I

• Most of coastal B.C. remains untreatied
• Douglas Treaties (1850s)
• Nisgaa Treaty (2000)
• Snuneymuxw Treaty (2003?)
• Rest of Coast is subject to ongoing claims some
  in litigation some in treaty process

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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

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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

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First Nation Rights and Shellfish Aquaculture
Expansion IV

• Tenures can be acquired through this route in two
  ways
• Pilot Beaches co-management with DFO of
  shellfishery adjacent to reserve
• Land Act Memo of Understanding
• (section 17)

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Pilot Beach Initiative

• Advantages quick turnaround helps to develop
  capacity
• Disadvantages
• Still entails a referral process
• Lack of suitable sites vagueness of adjacency
  requirement
• Lack of suitable sites due to marine pollution

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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

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Land Act II

• 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

• Advantages
• Exclusive right to apply
• Without prejudice to rights acquired later by way
  of treaty or litigation

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First Nations Rights and Shellfish Aquaculture
Expansion Other Issues

• Parks and Protected Areas
• Many suitable growing locales are located within
  parks or conservation areas
• In many cases, these areas were set aside without
  inadequate or no consultation with FNs
• Consequently, negotiations/litigation to redefine
  park boundaries likely

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First Nations Rights and Shellfish Aquaculture
Expansion Other Issues

• Duty 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?

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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

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Operational Challenges for First Nation
Initiatives

• Accessing Funding
• Band Politics
• Water Quality and Sanitary Testing
• Capacity Development
• Regulatory Framework

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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

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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

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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

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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

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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

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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)

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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 Tribunal
• Allocation of approx one half of wildstock
  commercial quota to Maori fishers or
  Maori-controlled fishery operators
• Ongoing negotiations over allocation to Maori of
  rights to shellfishery

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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