Shellfish Aquaculture and B.C. First Nations

1. Shellfish Aquaculture and B.C. First Nations Chris Tollefson University of Victoria, Faculty of Law April 2003

2. 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

3. 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

4. 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

5. 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)

6. Operational Challenges for First Nation Initiatives • Accessing Funding • Community Politics • Water Quality and Sanitary Testing • Capacity building • Regulatory barriers

7. First Nation Rights and Shellfish Aquaculture Expansion: I • Most of coastal B.C. remains untreatied; • Douglas Treaties (1850s) • Nisga’a Treaty (2000) • Snuneymuxw Treaty (2003?) • Rest of Coast is subject to ongoing claims; some in litigation; some in treaty process

8. 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

9. 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

10. 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)

11. 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

12. 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

13. Advantages: Exclusive right to apply Without prejudice to rights acquired later by way of treaty or litigation 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 Land Act: II

14. 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

15. 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?

16. 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 The Duty to Consult

17. Operational Challenges for First Nation Initiatives • Accessing Funding • Band Politics • Water Quality and Sanitary Testing • Capacity Development • Regulatory Framework

18. 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…

19. 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

20. 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

21. 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

22. 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…

23. 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)

24. 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

25. 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