In the 1990s, Fisheries and Oceans Canada had to start making drastic changes. One of the big reasons was the Sparrow decision in 1990. The case involved a Musqueam fishermen in the Vancouver area who was charged for using a net that was longer than regulations permitted. The case weaved its way through the Supreme Court of BC, the Court of Appeals and on to the Supreme Court of Canada.

In essence, the final decision in Sparrow stated that First Nations have the aboriginal right to fish for “food, social and ceremonial purposes”. This right took priority before any other fishing. Thus the principles of conservation first, then aboriginal fisheries, then commercial and sport fisheries that guides fisheries policy now — and sets the basis for the Wild Salmon Policy.

Fisheries and Oceans had to fundamentally change the way they “managed” fish and fisheries. Annual budgets were shifted dramatically, various departments had to change their operating procedures, and a shift in general corporate-bureaucratic operation. From the decision flowed the Aboriginal Fishing Strategy in 1992, which tried to change the way Fisheries and Oceans dealt with and negotiated with First Nation communities.

Also in the late 1990s was the Marshall decision on the east coast of Canada. In that decision the Court “affirmed a treaty right to fish in pursuit of a moderate livelihood under treaties signed with the British in 1760-61.” One of the crazy aspects of this case is that it involved two Mi’kmaq fellows catching eels and selling them for $787.

Following this case, a negotiation process of over five years began with 34 Mi’kmaq and Maliseet First Nations affected by the decision. The Court suggested that negotiation, as opposed to litigation was the way to move forward. A common direction given repeatedly by the courts in decisions involving aboriginal rights and title.

(There is a from 2006, describing DFO’s response to the Sparrow and Marshall decisions on their website.)

A glance at (Treasury Board of Canada) from 2006-2007 shows that forecast spending for that year on the Aboriginal Fisheries Program was over $30 million. Other programs related to this are $16 million for the Aboriginal Aquatic Resources and Ocean Management Program (started in 2004). And, the Fisheries Access Program which focuses on retiring commercial licenses and giving them to communal holders in First Nation communities. This program was initially forecast at over $350 million in 2001 and was forecast to spend over $57 million in 2006-2007 with ongoing commitments for years to come.

The Nuu-chah-nulth case from this past November (of which there are posts from earlier this week) — found that regardless of these DFO efforts this still did not change the conclusion of Madame Justice  Garson:

[791]     I conclude that the plaintiffs [Nuu-chah-nulth] have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally.

There appears to be some parallels between the Nuu-chah-nulth and their aboriginal rights to sell by fish — and the conclusion of the Marshall decision that concluded those nations actually had treaty rights to sell fish.

Are the 140 Nations or so — and over 80 inland Nations — that rely on Fraser River salmon now going to have to litigate individually to confirm that “Canada’s fisheries regulatory regime prima facie infringes on their aboriginal rights to sell by fish by their preferred means”?

(This will be really cost effective for all involved…)

Or, will their be more fundamental changes to the operation of Fisheries and Oceans? And more spending of millions on programs that aren’t achieving basic legal principles?

Or, could some of the negotiation regarding fisheries be taken up in the British Columbia Treaty process that involves tri-lateral negotiation between Canada, BC and individual First Nations?

Umm, No.

…because federal Fisheries Minister Shea issued a press release a few days ago stating that all fisheries components of the B.C. Treaty process were off the table until Justice Cohen releases his report on the inquiry into declines of sockeye on the Fraser River. Not due until May of next year.

(on one note… nothing like another 15-month delay on the BC Treaty process that has been ongoing since 1993 — nothing like a 17-year multi, multi million dollar negotiation process… showing little, if no, progress in the majority of cases. Granted there has been one or two treaties negotiated in that time)

……..

, marketing guru and author, has a fitting post today related to this:

When the platform changes, the leaders change.

Wordperfect had a virtual monopoly on word processing in big firms that used DOS. Then Windows arrived and the folks at Wordperfect didn’t feel the need to hurry in porting themselves to the new platform. They had achieved lock-in after all, and why support Microsoft?

In less than a year, they were toast.

When the game machine platform of choice switches from Sony to xBox to Nintendo, etc., the list of bestselling games change and new companies become dominant.

When the platform for music shifted from record stores to iTunes, the power shifted too, and many labels were crushed.

Again and again the same rules apply. In fact, they always do. When the platform changes, the deck gets shuffled.

Think this only applies to software?

The platform for healthcare changed from independent doctor’s offices and small practices to hospitals and hmos.

The platform for TV changed from airwaves to wires (so HBO and ESPN win, NBC loses).

The platform for cars is changing from gas engines to alternatives.

…..

(I’ll follow up with some thoughts in a later post.)