Documentation:Open Case Studies/FRST522/2023/Legislation and policy governing salmon and their impacts on First Nations on Vancouver Island, Canada

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Summary of Case Study

Salmon are an integral part of First Nations livelihoods on Vancouver Island, and throughout the rest of British Columbia. They are vital to First Nations economic, environmental, and spiritual wellbeing[1]. There are 5 native salmon species on Vancouver Island that will be discussed in this case study: coho, pink, sockeye, chum, and chinook[2]. Wild salmon populations throughout the province have not recovered from the drastic population decline due to many factors, with over-fishing and habitat loss being huge contributors[1]. This case study will address the impacts of colonial legislation and policies that have impacted salmon and First Nations on Vancouver Island, including the Douglas Treaties, the Salmon Allocation Policy, and Bill C-68. Recommendations include giving full agency over fish stock management back to First Nations on Vancouver Island and having conservation efforts being Indigenous led using traditional ecological knowledge (TEK) and traditional Indigenous governance[1].

Keywords

Wild salmon, Nuu-chah-nulth First Nations, Kwakwaka'wakw First Nation, Coast Salish First Nations, fisheries, aquaculture, fisheries

Introduction

Land Acknowledgment

I would like to begin this case study by acknowledging the land that it was researched and written on is the unceded, traditional, and ancestral land of the xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and səlilwətaɬ (Tsleil-Waututh) peoples. I also would like to acknowledge that this case study is focused on what is known as Vancouver Island, which is the traditional and ancestral land of the Nuu-chah-nulth First Nations, Kwakwaka'wakw First Nations, and the W̱SÁNEĆ First Nations.

Positionality

It is very important that I state my positionality prior to beginning this case study. I am a first-generation South Asian settler-immigrant, and my family has settled on what is now known as Mississauga, Ontario, which is located on the traditional and ancestral territories of the Mississaugas of the Credit First Nation, the Haudenosaunee Confederacy, the Huron- Wendat, and the Wyandot First Nations. I acknowledge my privilege and the opportunities I have had due to my family immigrating to this land. I have immense gratitude to be living and learning on these lands that have been stewarded and loved since time immemorial by Indigenous peoples.

I would like to acknowledge that these stories and teachings are not mine. Everything that I have researched has been through books, First Nations Council websites, and academic papers that are available. This case study is meant to summarize issues around salmon laws and the impact of colonial laws on traditional governance but does not speak on behalf of Indigenous Peoples and First Nations on Vancouver Island and throughout what is known as British Columbia.

First Nations map of Vancouver Island. The three nations being addressed in the case study are the Coast Salish, Nuu-chah-nulth, and Kwakwaka'wakw First Nations are seen as grey areas on the left hand side of the map.

Background

First Nations of Vancouver Island

Nuu-chah-nulth First Nations

The Nuu-chah-nulth First Nations Nations are located on the northwest coast of Vancouver Island and are known as the “people who dwell along the mountains”[3]. The Nuu-chah-nulth are made up of 14 independent Indigenous nations along the coastal temperate rainforest in the Pacific Northwest[4]. This case study will focus primarily on the Five First Nations: The Ahousaht, Hesquiaht, Tla-o-qui-aht, Ehattesaht, and Mowachaht/Muchalaht Nations [5].

Kwakwaka'wakw First Nations

The Kwakwaka’wakw First Nations' traditional lands span the Northwestern coast of British Columbia from what is known as Fort Rupert to Campbell River. They are referred to as “salmon people” and “cedar people”[6]. Kwakwaka’wakw oral history recalls that their rivers were rich, vibrant, and full of salmon[6]. This case study will focus on the Laich-Kwil-Tach, the southern-most Kwakwaka’wakw First Nations[7].

Coast Salish First Nations

Coast Salish First Nations traditional land ranges from Vancouver Island to the mainland, stretching from Northern Vancouver Island all the way down to Oregon and Washington. This case study will focus primarily on the W̱SÁNEĆ First Nations. W̱SÁNEĆ territory includes a lot of the marine environment[8]. They are referred to as the ‘Saltwater People’[8]. W̱SÁNEĆ have traditional fishing practices that are rooted in spiritual philosophies, which fosters a respectful relationship with the environment[8].

Table 1: Differences between Indigenous rights, Aboriginal rights, and Treaty Rights
Indigenous Rights These rights have been outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) for Indigenous peoples around the world. It is non-binding but it works towards ensuring that Federal laws are aligned with the UN Declaration on the Rights of Indigenous Peoples[9]
Aboriginal Rights Rights that apply to all First Nations, Metis, and Inuit in Canada in the Constitution[9]
Treaty Rights Independent agreements (used loosely) between specific First Nations, Metis, or Inuit and the Crown, that recognize certain rights to land and resources[9]

The importance of salmon to First Nations

Salmon people

Salmon plays a very important role to First Nations both on Vancouver Island and the mainland. Salmon are crucial to the social, economic, and cultural well being of First Nations[4]. There is a mutual respect between humans and salmon in traditional Indigenous governance structures. Across First Nations on Vancouver Island, there are similar stories of salmon, with an emphasis on the interdependence between salmon and people and the symbiotic relationships that are created[4]. There is a deep respect for salmon and an understanding that in order to take care of the salmon, their river habitat must also be taken care of[1].

In Nuu-chah-nulth worldviews, a traditional story about Salmon people is told to understand the relationships between human and salmon, why they must be cared for, and to gain a greater understanding of what sustainability looks like. While these stories are not mine to tell, Twawalk: A Nuu-chah-nulth worldview by Eugene Richard Atleo is an incredible book that uses Nuu-chah-nulth stories to emphasize their worldviews, with an emphasis on “everything is one”[4][3]. This worldview is synonymous among First Nations, each with their own stories to express their own worldviews. The understanding that everything is connected is crucial to addressing how colonial laws and policies have impacted relationships between people, the land, the water, and the air.

An Ahousaht story tells us that the Salmon people sacrifice their lives to the Ahousaht communities as food and in return, the Ahousaht communities maintain sustainable and healthy spawning grounds for them[4]. These worldviews are expressed through variations of stories across First Nations, and they help foster a more meaningful relationship with the salmon and recognize that they are living creatures, not just a renewable resource. In addition, it addresses that both human and salmon depend on each other greatly, and if one suffers, then both suffer[4]. The Laich-Kwil-Tach First Nation have similar views as the Nuu-chah-nulth, as they regard human-fish relationships as fish persons and human persons, continue to express a mutual respect of fish as a living being and not just a resource[2].

History

The Hudson's Bay Company and James Douglas

The Douglas Treaties are the only treaties that are signed in British Columbia, but these treaties had drastically different outcomes for First Nations and settlers[10]. These treaties stripped away land, fishing rights, and hunting rights from First Nations[10]. There are many oral histories recounted by the W̱SÁNEĆ peoples, stating that the Douglas Treaties was one of their main dispossessions[8]. The treaties gave the settlers land in exchange for goods, while continuing to allow First Nations to have access to them[10]. Because both parties did not speak the same language, there was a lot of room for miscommunication and James Douglas and the Hudson’s Bay Company took full advantage of it.

Pacific Salmon Allocation Policy

The Pacific Salmon Allocation Policy (SAP) was created by the Department of Fisheries and Oceans Canada (DFO) in 1999. The Pacific Salmon Strategy Initiative was announced in 2021 as an update to the 1999 SAP. It is currently in the process of being updated in partnership with First Nations, more stakeholders, and the Province of B.C which will be further discussed in the Discussion section (DFO, 2023). The SAP in 1999 mentions that First Nations have priority salmon allocation in regard to food, social, and ceremonial requirements that are defined in treaties while giving commercial sectors more rights . It is evident that First Nations are not given much agency and their rights to fish and hunt on their traditional and ancestral land is not implemented in the SAP. The SAP also states that Pacific salmon “belong to the people of Canada as a common property resource” (SAP, 1999), The SAP is still having impacts on First Nations, and its recent impacts will be discussed in the Critical Issues section.

“[The] commercial sector allocation of the total allowable catch of the combined recreational and commercial harvest of sockeye, pink, and chum, will still be 95 per cent or higher, after the priority described above” (Salmon Allocation Policy [SAP], 1999)

The SAP prioritized recreational fishing of chinook and coho salmon, above the First Nations Aboriginal right to fish and sell their catches by placing a limit on how many salmon could be caught[11].

Tenure arrangements

Provincial Crown land includes more than just terrestrial land in B.C., it also includes “the seabed floor of inland water” (British Columbia Marine Conservation Analysis, 2013). Federal Crown land “extends over the seabed floor in offshore areas”, in addition to areas that are federally protected and designated ports (British Columbia Conservation Analysis, 2013). Tenure arrangements are extremely complicated are rooted in colonialism, especially in the case of salmon and the First Nations on Vancouver Island.

Fish farms and commercial fishers were given tenure rights to salmon, but it's difficult to express tenure rights for First Nations in a colonial manner given that they already had intricate governing systems in place.

Pre-contact tenure agreements

Pre-contact, there seemed to be a mutual understanding between First Nations that owning a fishing location did not mean exclusive rights to that site, and there were customs between nations on when to fish (Wadewitz, 2012). One of the customs is seen in Nuu-chah-nulth First Nations, where the chief had to open the fishing season before anyone else was able to fish[12]. Another custom was seen in intermarriages between Nuu-chah-nulth and Kwakwaka’wakw to get access to various fishing grounds[12].

Furthermore, in Kwakwaka’wakw First Nations, potlatches are extremely important as they are part of their governance system[6] . During potlatches, there were celebrations, wealth was shared, and changes in statutes related to the ownership of resource rich sites occurred[12]. This is not to say that there were not any conflicts between nations, but the similar worldviews about how everything is one, or everything is connected, helps foster great respect for the land, water, and animals.

First Nations had tenure systems set up pre-contact and each nation had their own traditions and governance systems in place that the Federal government did not recognize, and the Indian Act dismantled[8]. The negative repercussions of the Indian Act are still felt throughout First Nations and Indigenous Peoples across what is known as Canada, and have impacted their connection to their land and traditional practices[8].

Fish farm tenures

The DFO is responsible for issuing aquaculture licenses in B.C, where multi-year licenses being the most common, but the DFO can issue short licenses where they see fit (DFO Aquaculture). Aquaculture licenses can be up to 9 years for fresh water/land-based fish and shellfish and up to 6 years for marine finfish (DFO Aquaculture). Salmon are considered finfish in B.C. aquaculture.

Understanding who has agency and which institutions are responsible for certain regulations is crucial to understanding the impacts of policy governing salmon and their impacts on First Nations. In British Columbia, wild salmon are made up of 5 salmon species that are found in B.C and the Yukon: sockeye, coho, pink, chum, and chinook[13]. The Fishery Act, Aquaculture Management agreement, and the Land Act are all factors in the Wild Salmon Policy. Other factors include the Species at Risk Act, changing global market demands, Supreme Court decisions, and the push towards working alongside First Nations to protect wild salmon[13].

Fish farms and commercial fishers were given tenure rights to salmon, but its difficult to express tenure rights for First Nations in a colonial manner given that they had intricate governing systems in place pre-contact.

Institutional/Administrative arrangements

Federal-Provincial roles and responsibilities

When looking at actors and stakeholders, the DFO, a federal agency, has exclusive jurisdiction for the regulation of fish farms, however, this was only established in 2009 after a Supreme Court Decision (BC Gov News, 2018). Prior to 2010, the Government of British Columbia was responsible for managing regulations and policies for finfish, which include:

  • B.C. Fisheries Act and Aquaculture Regulation
  • Land Act - to tenure the seabed
  • Finfish Aquaculture Waste Control Regulation - for fisheries waste
  • Integrated Pest Management Act - for pesticide use in fisheries (BC Gov News, 2018).

In addition, the Federal Government prior to 2010, was responsible for assessments on the impacts of aquaculture on wild fish through the following:

  • Fisheries Act - for permits
  • Canadian Environmental Assessment Act - for environmental screening (BC Gov News, 2018).

Keep in mind, the Federal and Provincial governments did not consult with First Nations during this time. It has taken First Nations many battles in court, the use of their Aboriginal Rights, Section 35 of the Constitution, the UN Declaration on the Rights of Indigenous Peoples, and a lot of resources and energy to finally be part of conversations about land tenures for aquaculture purposes.

Fisheries Act

Bill C-68, the revised Fisheries Act, has a focus on growing Canada's economy and protecting coastal communities and ecosystems[14]. The modernization of the Fisheries Act is working towards benefitting Indigenous Peoples by strengthening their role in habitat decisions, project reviews, and monitoring[14]. This bill was passed in Parliament and hopes to benefit all of Canada, from the environment to the fishing industry, First Nations and coastal communities[14].

Figure 1: An overview of the Wild Pacific Salmon Policy by the Department of Fisheries and Oceans Canada.[13]

Agreement on aquaculture management

After the Supreme Court decision in 2009 in the case of Morton v. The Province of British Columbia, it was determined that a fish farm operation was a fishery, which impacted who has legislative authority to the inland and seacoast fisheries[15]. This case found that the Federal government had jurisdiction to what is considered Crown land[15]. This ultimately led to the Canada-British Columbia agreement on aquaculture management[15].

The agreement has given the province of B.C. agency to issue land tenures under the Land Act for aquaculture and the ability to issue aquaculture licenses under the Fisheries Act[15].

Wild Salmon Policy

As aforementioned, the DFO has authority to manage the health of Pacific salmon and their habitats under the federal Fisheries Act[16]. The legal context for the Wild Salmon Policy (WSP) is through the exclusive legislative authority given to federal government, the Minister of Fisheries and Oceans, over the “sea coast and inland fisheries” in Section 91 of the Constitution Act, 1867[16]. The WSP was created in 2005 and acknowledges the importance of salmon to First Nations and recognizes the Aboriginal and treaty rights have legal context for wild salmon management[16].

The four guiding principles that are the foundation of this policy can be seen in Figure 1. Principle 2 is about Honouring obligations to First Nations, which states that Canada has a legal duty to consult with First Nations[16]. It is recommended that they include more consultation with First Nations to update this policy. Successful policy initiatives and their implementation requires consistent consultation and changes, such as including First Nations in the monitoring of wild salmon habitats.

Affected Stakeholders

“Indigenous peoples are not “stakeholders;” they have conducted their traditional fisheries since time immemorial”

This case study acknowledges that there are other stakeholders aside from the First Nations on Vancouver Island that are impacted by policy governing salmon, but due to the content of this study I will be solely focusing on First Nations as affected stakeholders. This is because other stakeholders have benefited greatly from colonial policies and legislation for salmon fishing.

The Nuu-chah-nulth First Nations, Kwakwaka’wakw First Nations, and the Coast Salish First Nations on Vancouver Island are the most affected stakeholders in this case study.

Tenure arrangements are ongoing and very complex, as First Nations have been fighting for their right to fish on their traditional, ancestral, and unceded land for years. In addition, there are different policies and tenure rights based on the species of salmon that are being fished.

Interested Stakeholders

Interested stakeholders, their main relevant objectives, and their relative power

The interested stakeholders in this case study are the Federal Government and the Department of Fisheries and Oceans Canada (DFO), the Province of British Columbia, the B.C. Salmon Farmers Association, commercial and recreational fishermen, environmental non-governmental organizations (ENGOs) and conservation authorities, and the general public.

The DFO has a lot of power and exclusive legislative authority over the Land Act, ultimately determining who has rights to fish in specific areas that are considered Crown Land.

Discussion

The intention of this case study is to bring awareness to various policy and legislation in British Columbia regarding wild salmon and the impacts of these policies on First Nations on Vancouver Island. It also aims to acknowledge that colonial systems have caused generational trauma and disconnections for Indigenous Peoples from their traditional lands and practices. First Nations across British Columbia have been fighting for their rights to fish for decades. A Supreme Court case that have played a huge role in First Nations rights to fish is R v Sparrow (1990), which addressed infringements on Aboriginal rights and title and Section 35 of the Constitution Act 1982 must be justified[13].

Pacific Salmon Strategy Initiative

The Pacific Salmon Strategy Initiative (PSSI) was announced in 2021 to help protect Pacific salmon stocks. The PSSI is an updated version of the Salmon Allocation Policy 1999. It was introduced in 2018 after a Supreme Court Case of Ahousaht First Nation v Canada that found the SAP was an "unjustified infringement of the Five First Nations Aboriginal right to fish"[11].

There are four pillars of the PSSI: conservation and stewardship, salmon enhancement, harvest transformation and integration, and collaboration[11]. The stakeholders in the PSSI are similar to the stakeholders in this case study. Stakeholders include: all levels of governments, First Nations, scientists, salmon fishers (commercial and recreational), environmental stewardship groups, conservation authorities, and the general public[11]. This initiative still seems to be a work in progress, as the information available seems foundational.

Salmon farms

"The Aboriginal Right to fish is vital to all Indigenous Nations and fish farms threaten to destroy that right" [17]

There is a lot of discourse surrounding salmon farms on Vancouver Island. First Nations state that salmon farms are a threat to wild salmon populations, therefore, a threat to the livelihood of First Nations[17]. But, there are also some First Nations that are salmon farmers on Vancouver Island, who are pushing for nine year long finfish aquaculture licenses as opposed to the current six year long license[18]. Salmon farming is one way to provide for their communities and to foster a movement of Indigenous-led salmon farming practices [18].

The DFO has been working on phasing out open-net fish farms on the coast of Vancouver Island to help protect wild fish[19]. There is a key wild salmon migration route around the Discovery Islands and fish farms are said to pose many risks to the migrating salmon[19]. The two main issues regarding open net fish farms and their phase out are: 1) wild salmon stocks are already depleted and waiting to close fish farms will be detrimental and 2) fish farms employ over 4,000 people on Vancouver Island and the coast that risk losing their jobs if they close[20]. While closing fish farms is one of the top recommendations for protecting wild salmon stocks, there are many variables to consider. The notion to close fish farms is constantly moving and there have been aquaculture license extensions for open-net farms near the Discovery Islands[19].

Modern issues with the Salmon Allocation Policy

In 2018 there was a B.C. Supreme Court ruling to address the Salmon Allocation Policy, and to “take a more generous approach” with chinook salmon allocations to First Nations[21]. The Five First Nations were allotted 7,724 chinook, equating to about one and a half fish per community member[21].

COVID-19 brought a new set of issues for the Five First Nations with salmon allocation. Because there was a reduction in recreational fishing, there was a surplus of salmon to be allocated and none of it went to First Nations[21]. There were comments from the Five First Nations stating they feel that commercial fishers are given more rights to fish[21]. In addition, the DFO officials are being accused of systemic racism because the surplus allocation of salmon was given to commercial fishers instead of First Nations[21]. This brings up a lack of transparency from the government and a duplicitous image as one of the biggest stakeholders pushing for reconciliation.

Critical Issues

This case study is an extremely broad overview of wild salmon management in B.C., as there is a focus on Vancouver Island. Wild salmon management is an increasingly complex topic with a number of affected stakeholders.

The impacts of colonization are also continuously felt as First Nations fight for their rights to land tenure. First Nations were forcefully displaced from their traditional lands while colonial laws were implemented to benefit settlers[22]. While the federal government mentions the importance of consulting and negotiating with First Nations on paper, it is not always seen in practice. For example, the federal government wants to help fix the relationship between the Crown and First Nations, yet continue to fight against First Nations in court[21]. Another issue related to this is that many of the decisions being made for First Nations on Vancouver Island and fishing rights are being determined in Ottawa.

Fish farms are being closed to help protect wild salmon stocks after discussions with First Nations. Leading to angry BC Salmon Farmers Association, who state that many jobs are being lost after the Minister’s decision.

Assessment

There have been several court cases between First Nations and the Province of British Columbia and Canada about fishing rights. These cases have been critical to getting the federal and provincial Crown to consult with First Nations on fisheries and wild salmon management, but there is still lots of work to be done. Wild salmon management is under federal jurisdiction, but provincial and municipal governments have a duty to help manage wild salmon stocks. Personally, I believe that the federal government has continuously failed First Nations while trying to push the narrative of reconciliation with no action.

Recommendations

There is a lot of work that must be done to dismantle colonial structures and policies that have restricted First Nations from their Aboriginal and treaty rights to fish and manage wild salmon. While there are many steps towards giving First Nations more jurisdiction over their traditional territories, I believe the best way for wild salmon management to occur is to give First Nations full authority over their fisheries and work towards true reconciliation. This is dependent on giving their traditional lands and territories back, listening to the wants and needs of First Nations communities on Vancouver Island, and then implementing them.



This conservation resource was created by Course:FRST522.


References

  1. ↑ 1.0 1.1 1.2 1.3 Bingham, J. A., Milne, S., Murray, G., & Dorward, T. (2021). Knowledge pluralism in First Nations’ salmon management. Frontiers in Marine Science, 8, 405.
  2. ↑ 2.0 2.1 Cullon, D. S. (2017). Dancing salmon: Human-fish relationships on the northwest coast [Doctoral dissertation, University of Victoria].
  3. ↑ 3.0 3.1 Atleo, E. R. (2007). Tsawalk: A Nuu-chah-nulth worldview. UBC Press.
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 Atleo, T. (2021). Ahousaht law and chinook salmon conservation in the Megin River [Doctoral dissertation, Royal Roads University].
  5. ↑ "About T'aaq-wiihak". T'aaq-wihak. December 10, 2023.
  6. ↑ 6.0 6.1 6.2 Mustonen, T., Van Dam, B., & Eklund, H. (2021). A century of knowledge: Kwakw aka’wakw Elders and environmental change. FACEST, 6(1), 2110-2137.
  7. ↑ "Our Culture". Wei Wai Kum First Nation. December 11, 2023.
  8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 Claxton, N. X. (2015). To fish as formerly: A resurgent journey back to the Saanich reef net fishery [Doctoral dissertation, University of Victoria].
  9. ↑ 9.0 9.1 9.2 "Background information: Aboriginal and Treaty Rights in Canada's Constitution". Elections Canada. 2023.
  10. ↑ 10.0 10.1 10.2 Petrescu, Sarah (February 19, 2017). "Lost in translation: The Douglas treaties". Times Colonist. Retrieved December 11, 2023.
  11. ↑ 11.0 11.1 11.2 11.3 "Pacific Salmon Strategy Initiative". Department of Fisheries and Oceans Canada. November 15, 2023. Retrieved December 11, 2023.
  12. ↑ 12.0 12.1 12.2 Wadewitz, L. K. (2012). The nature of borders: Salmon, boundaries, and bandits on the Salish Sea. University of Washington Press.
  13. ↑ 13.0 13.1 13.2 13.3 "Canada's Policy for Conservation of Wild Pacific Salmon". Government of Canada. June 2005. Retrieved December 10, 2023.
  14. ↑ 14.0 14.1 14.2 "The modernized Fisheries Act, Bill C-68 passes Parliament". Fisheries and Oceans Canada. June 20, 2019. Retrieved December 11, 2023.
  15. ↑ 15.0 15.1 15.2 15.3 "B.C. government announces new approach to salmon farm tenures". BC Gov News. Wednesday, June 20. Retrieved December 11, 2023. Check date values in: |date= (help)
  16. ↑ 16.0 16.1 16.2 16.3 "Canada's Policy for Conservation of Wild Pacific Salmon". Fisheries and Oceans Canada. May 31, 2005. Retrieved December 11, 2023.
  17. ↑ 17.0 17.1 "Fish Farms, Zero Tolerance". UBCIC. n.d. Retrieved December 7, 2023.
  18. ↑ 18.0 18.1 Dawson, Fabian (November 28, 2023). "First Nations call for nine-year renewal of salmon farming licences". SeaWest News. Retrieved December 11, 2023.
  19. ↑ 19.0 19.1 19.2 Meissner, Dirk (February 17, 2023). "Fisheries Department says it will shut 15 salmon farms off B.C.'s coast to protect wild fish". CBC. Retrieved December 11, 2023.
  20. ↑ Vance, Emily (November 11, 2022). "Future of B.C. salmon farms up in the air, as deadline to phase out open-net pen farms looms". CBC. Retrieved December 11, 2023.
  21. ↑ 21.0 21.1 21.2 21.3 21.4 21.5 Wright, Teresa (August 17, 2020). "First Nations say salmon allocation decision shows systemic racism at DFO". CBC. Retrieved December 10, 2023.
  22. ↑ Harris, D. C. (2009). Landing native fisheries: Indian reserves and fishing rights in British Columbia, 1849-1925. UBC Press.
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