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Troubled waters : co-management in the aboriginal fishery : the case of the Gitxsan and Wet'suwet'en Peruniak, Jain Anne 2000

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I TROUBLED WATERS CO-MANGEMENT IN THE ABORIGINAL FISHERY: THE CASE OF THE GITXSAN AND WET'SUWET'EN By JAIN ANNE PERUNIAK B.A. (Honours Geography) Queens University, 1980 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS (PLANNING) In THE FACULTY OF GRADUATE STUDIES (School of Community and Regional Planning) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA December 2000 © Jain Anne Peruniak 2000 UBC Special Collections - Thesis Authorisation Form \ Page 1 of 1 In presenting this thesis i n p a r t i a l fulfilment of the requirements f o r an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y available for reference and study. I further agree that permission for extensive copying of t h i s thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It i s understood that copying or publ i c a t i o n of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of The University of B r i t i s h Columbia Vancouver, Canada 12/20/00 Abstract The Pacific coast salmon fishery has a legacy extending into the shadows of historic time. Since the last ice age, aboriginal communities have actively participated in the harvesting, regulation and management of the salmon resource. First Nations' societies developed governance structures which regulated resource use and access. Prior to colonization and the articulation of a state resource management system, indigenous systems were the sole management regime and they functioned to sustain the fishery for thousands of years. As European colonization proceeded and British Columbia joined Confederation in 1871, federal institutions began to assert their authority over the management of the Pacific fishery. The net effect was to suppress and marginalize indigenous populations from an active and meaningful role in fisheries management. This thesis provides an analysis of First Nations involvement in current fisheries management in the Skeena inland fisheries and explores the potential of co-management agreements for reconciling the two systems of resource management. The objectives of the thesis are: (i) to outline the divergent value systems which underlie resource-based conflict in cross-cultural settings; (ii) to identify key components of the indigenous resource management system as expressed within the fishery; (iii) to apply three analytical frameworks to help analyze the current regulatory regime within the inland fisheries; and (iv) to identify recommendations arising from the case study for the future of co-management within the inland fisheries. The introductory chapters outline the historical, philosophical and theoretical contexts for the research. M y case study focuses upon the current fisheries management regime, within the inland fisheries, of the Gitxsan and Wet'suwet'en Nations. The study examines key features of the indigenous resource management system and discusses how this system acted to restrict access and regulate harvesting activities. Government regulations which have impacted First Nations harvesting are outlined and the history of fisheries conflict between the state and the Gitxsan and Wet'suwet'en is profiled. The core of the conflict involved a jurisdictional dispute concerning aboriginal rights and authority within the fisheries. Litigation by First Nations resulted in key court rulings which established a legal framework for aboriginal fishing rights. The policy response by government to the new legal context involved the delivery of the Aboriginal Fisheries Strategy. This program, which is intended to deliver co-management, is assessed in terms of its application within the fisheries of the Gitxsan and Wet'suwet'en Nations. It is argued that a form of co-management is being expressed but the program is not addressing key concerns raised by the First Nations. Nineteen strengths evident within the current fisheries management practice of the Gitxsan and Wet'suwet'en are identified. Some of these include internal policy development, role of the hereditary system, community support, watershed focus and a pro-active stance. The analysis leads me to conclude that the Gitxsan and Wet'suwet'en agreements under the Aboriginal Fisheries Strategy are more enhanced than other AFS agreements and I argue that this is directly related to the political empowerment processes which have been actively expressed by these First Nations. It is suggested that co-management, empowerment and community economic development are inter-related processes each acting to reinforce the other. I end my research by generating 13 recommendations to enhance fisheries co-management, sustainability and to deliver some measure of historical justice. Table Of Contents Abstract ii Table of Contents iv List of Tables vii List of Maps '. viii List of Figures - ix List of Graphs x Acknowledgements xi CHAPTER I Introduction 1 1.1 Problem Statement 5 1.2 Study Area 7 1.3 Thesis Goals and Objectives 8 1.4 Research Questions 8 1.5 Research Scope and Limitations 9 1.6 Research Methodology and Organization 9 CHAPTER II Differing Cultures and Worldviews 12 2.1 The Concept of Worldview 12 CHAPTER III Analytical Framework 18 3.1 Common Property Resource Theory 18 3.1.1 Property Regimes 19 3.1.2 Communal Property Resources Concept 21 3.2 Co-management ...22 3.2.1 Shared Decision-making, Redistribution of Power... 22 3.2.2 Defining Co-management 24 3.2.3 Power-Sharing and Co-management 29 3.3 Ladder of Empowerment 31 3.4 Significance of Litigation 34 CHAPTER IV Case Study 37 4.1 The Gitxsan and Wet'suwet'en Relationship 38 4.2 The Gitxsan and Wet'suwet'en Indigenous Fisheries 39 4.2.1 Respect for the Salmon 39 4.2.2 Territoriality - Common Property Resource 40 4.2.3 The Fishery and Seasonal Rounds 41 4.2.4 Governance System - Role Of the Feasthall 42 4.2.5 Traditional Gear 43 iv 4.2.6 Economic System 44 4.3 The Modern Gitxsan and Wet'suwet'en Fisheries 45 4.3.1 Early State Regulation 45 4.3.2 State Management-Sinclair/Davis Plan 47 4.3.3 Gitxsan and Wet'suwet'en Fisheries Actions - 1980s. 48 4.3.4 Skeena Watershed Cornrriittee 50 4.4 Court Rulings 52 4.4.1 Sparrow 52 4.4.2 Delgamuukw 54 4.5 Aboriginal Fisheries Strategy.... 55 4.5.1 AFS Agreements Between the Department ....57 of Fisheries and Oceans and the Gitxsan and Wet'suwet'en Watershed Authority 4.6 Fisheries Management in the Gitxsan 59 and Wet'suwet'en Inland Fisheries (2000) 4.6.1 Profile of a Modern Food Fishery-A Corrununal 59 Property Resource The Wet'suwet'en 4.6.2 Profile of a CoirLmercial In-River Fishery 65 - The Gitxsan CHAPTER V Case Study - Analysis and Findings 72 5.1 Co-Management on the Skeena: 72 Gitxsan and Wet'suwet'en Fisheries 5.1.1 Working Relationships, The DFO, the Gitxsan and .. 79 the Wet'suwet'en 5.1.2 Role of the AFS - Creeping Co-management 81 5.2 Two Policy Issues - Conservation and Inland 84 Commercial Fisheries 5.2.1 Defining Conservation - The Case of Nanika 84 Sockeye - What Are the Options? 5.2.2 The Development of Commercial 87 Inland Fisheries Barriers to Commercial Inland Fisheries 88 5.3 Empowerment Processes 90 5.3.1 Political Empowerment Actions 90 CHAPTER VI Recommendations and Conclusions 94 6.1 Conclusions 94 6.2 Research Questions Reviewed 96 6.3 Long-term Sustainability for Skeena Inland Fisheries 99 6.4 Recommendations 102 6.4.1 First Nations Recommendations 102 6.4.2 Agency Recommendations 107 6.5 Future Research 112 6.6 Lessons Learned 113 v List of References : 118 Appendix 1 125 Appendix 2 129 vi L i s t o f T a b l e s Table 1 Values of Indigenous and Technological Peoples 14 Table 2 Fisheries Management Functions 27 Table 3 Co-management Objectives 28 Table 4 Power Experiences 33 Table 5 Number of Food Fish Caught in 2000 64 Table 6 Surplus Harvest (Gitxsan) 70 Table 7 Management Functions in Practice - 73 Gitxsan Food and Commercial Fisheries Management Table 8 Strengths of the Gitxsan Inland Fisheries 77 Table 9 Management Options for Nanika Sockeye 86 Recovery v i i L i s t o f M a p s Map 1 Skeena River 7a Map 2 Territories of the Witsuwit'en Chiefs 40 a Map 3 Moricetown Canyon Fishing Sites 60a vi i i List of Figures Figure 1 Arnstein's Ladder of Citizen Involvement 23 Figure 2 . Dorcey's Public Involvement Spectram 24 Figure 3 Co-management Spectrum 30 Figure 4 Co-management Spectrum 30 Figure 5 Berkes' Schemata of Co-management 31 Figure 6 Rochas' Ladder of Empowerment 34 Figure 7 Impact Diagram - Barriers to Commercial 89 Development in Inland Fishery Figure 8 The Connection Between Co-management, 92 Empowerment and Community Economic Development ix List of Graphs Graph 1 Nanika Sockeye Escapement 85a Graph 2 Trend in Coho Escapement into Enhanced Coho- 101a Producing Streams in the Thompson River Watershed Graph 3 Landed Value for Net-caught Salmon 1976-97 101a x Acknowledgements I would like to acknowledge all the dedicated people who assisted me by giving of their time and knowledge during the interview process. Interviewees represented Wet'suwet'en Fisheries, Gitxsan Watershed Authority, Skeena Fisheries Commission, staff of the Department of Fisheries and Oceans in Vancouver and Prince Rupert, fisheries consultants in British Columbia and Ottawa, Haisla Fisheries and the Tahltan Nation. I would also like to acknowledge the concerted efforts these organizations and individuals are making in the quest to sustain the Pacific salmon fishery. xi TROUBLED WATERS Co-Management in the Aboriginal Fishery: THE CASE OF THE GITXSAN AND WET'SUWET'EN Chapter One: INTRODUCTION Even though the whiteman destroyed the o ld methods of harvesting the salmon, we st i l l carry on the laws that our grandfathers and their fathers before them practiced. This is our l ive l ihood that we w i l l not lose. (Gitxsan elder) The relationship between abor iginal peoples and fish is shrouded i n the mists of early d a w n . The entire his tory of abor ig ina l settlement w i t h i n B C is characterized b y a p ro found and ind iv i s ib le connect ion w i t h the six key species of anadromous Pacific sa lmon. Th i s relat ionship permeates a l l aspects of the indigenous culture. The harvest ing and u t i l i za t ion of sa lmon influenced settlement patterns, social structure, economic systems, artistic expressions, technological innova t ion and the spi r i tua l realm. The sacredness of the sa lmon is revealed i n the f o l l o w i n g passages describing the ceremonies h e l d i n honour of the re turn of the first salmon: A n d their first run, they treasured f ish. The first run they call "Hon an G w o o i m " the first run. They don't eat it right away. They bless it w i t h feathers of eagle. They don't touch it i n case they don't f ind another run l ike it. Whoever caught the first run i n the springtime they call the entire village and cook for them i n a large pot... they distributed the fish.. .(Gitxsan e lder ) 1 The first f ish was treated as an honoured guest of the rank of a vis i t ing chief. They believed that the salmon permitted itself to be harpooned or clubbed, or captured... but it was extremely bad luck to molest a f ish i n any other way. M a n y tribes told a story to their chi ldren describing the terrible fate that befell the naughty boy who poked out 1 the eyes of the salmon... Every good Kwakiutl fisherman had his own prayers which he addressed to the first salmon of the season, "Swimmer, I thank you because I am still alive at this season when you come back to our good place...Now, go home and tell your friends that you had good luck on account of your coming here and that they shall come with their wealth. (McKervill 1967, pp 8-9) The history of European settlement in Western Canada is relatively short. Captain James Cook, who is credited with being one of the first European explorers to sail the west coast, arrived in Nuu-Chah-Nulth territory in 1768, a mere 230 years ago. At the time of contact, aboriginal population in British Columbia is estimated to have been between 300,000 and 400,000 (Tennant, 1990). British Columbia aboriginal communities extended from the far northern region of the Taku River Tlingit, along the rugged coast line of the Tsimshian world, through the pine forested plateau of the Chilcotin communities, across to the Ktunaxa-Kinbasket people nestled in the foothills of the Rocky Mountains. These societies, representing more than 30 separate aboriginal groups, unique in language and cultural identity, shared one core common characteristic (Tennant 1990). Occupation and use of defined and delineated parcels of territory which sustained the group directly through the immediate resource base and indirectly through a complex system of established trading networks. Authority over resources resided solely with these indigenous societies who established ways of regulating the use and management of land and resources in order to sustain these "gifts from the Creator" (Nabigon 1992). European settler society brought unparalleled changes to all aspects of indigenous society. These catastrophic changes were accomplished partially by the imposition of the Indian Act in 1876. The Department of Indian Affairs began to establish a system of Indian reservations which would restrict native settlement allowing for the unfettered development on all other lands. European institutions did not impact the northern reaches of the province until the turn of the twentieth century. As Paul Tennant concludes, The aboriginal past is closer in British Columbia than almost anywhere else on the continent... In almost every Indian community there are still elders who as children were taught by parents or grandparents who had grown to adulthood in self-governing communities free of control by Whites. (Tennant, 1990, p.4) 2 This assertion holds particularly true for the Gitxsan and Wet'suwet'en peoples of the north-west. The impact of white settlers in the Bulkley Valley region of the Wet'suwet'en people did not begin in earnest until the turn of the century. At this time, war veterans from the Boer War were granted significant land holdings (approx. 160 acres each) throughout the region immediately displacing scattered groups of Wet'suwet'en families who were using these lands for trapping, hay fields, hunting and gardening (Lane 1987). Within a scant 20 year period, the legislative arm of the state became so entrenched as to completely marginalize many aboriginal communities from resource management decisions and legally alienate them from the resource base which they had stewarded for centuries. In the case of the Wet'suwet'en, there was a mixed response to the reserves with some families remaining closely tied to their hunting territories while others relocated to the small parcels of land. 2 Those who resisted moving to reserves could be forcibly relocated and in some instances their lodgings were burned by zealous bureaucrats. In the 1960's, BC government agencies burned a number of Wet'suwet'en winter hunting cabins in an attempt to assert the Crown's authority.3 The desired effect of these types of actions was for state management systems to begin to replace indigenous property management systems. Native ownership rights to traditional territory in the province were effectively eliminated until the Colder decision in the mid-1970s. The very recent nature of the displacement of Gitxsan and Wet'suwet'en people from their lands has made it easier for the hereditary chiefs to assert their claim to a role in resource management. The past is still very alive. Many elders grew up on the traditional territories and their knowledge is being passed on to the current generation. There is a continuous connection to the governance systems of the past which is expressed in the feasthall. This situation has made it possible for both the Gitxsan and Wet'suwet'en Nations to mount strong claims for authority in the resource decision-making within their territory. Thus, the remaining resource base is viewed by aboriginals and non-aboriginals from vastly different perspectives grounded in widely divergent values. Western resource management strategies reflect a scientific epistemology which emphasizes human dominance over nature; while traditional knowledge systems share an epistemological premise which is expressed as the integration of human, nature, and the supernatural. Stoffle and Evans observe that: 3 ...Indian people perceive themselves to be a functional and essential part of the natural elements in their traditionally occupied lands. They perceive this relationship to have been caused by the supernatural. Maintaining this relationship through their proper stewardship of these natural resources is perceived to be critical in their persistence as a people. (Stoffle and Evans 1990, p. 92) The conflict inherent in these divergent worldviews has pushed the government and the Gitxsan and Wet'suwet'en to engage in peaceful protests, armed militia-style encounters (DFO Enforcement), heated debates and forceful negotiations. What is perceived to be at stake is the exclusive sovereignty of the state to distribute and regulate all resources, on the one hand, and on the other, a persuasive argument of moral proportions which seeks legal recognition of a claim for ownership of resources and effective involvement in resource management. As Usher states: Every system of resource management is based upon certain assumptions, frequently unstated, about social organization, political authority, and property rights, all of which are closely interrelated. As no two societies or cultures are identical in these respects, there can be no such thing as a scientifically or technically neutral management regime that is equally applicable and acceptable to both. Consequently, where two social systems share an interest in the same resources, there must be some accommodation in the sphere of property, as well as in the system of management, unless one is completely obliterated by the other. (Usher 1987, p. 6) This thesis explores the interface between government resource management authority and First Nations resource management within the inland fishery. A case study focused upon developments within the Gitxsan and Wet'suwet'en fishery will examine how these two systems work together in a shared regulatory environment. 4 1.1 Problem Statement Modern fisheries management is not for the faint of heart. Management takes place within a dynamic environment where over-harvesting, conflict between user groups, environmental hazards, shifting jurisdiction, and unpredicted variations in stock levels coalesce to create an exceedingly complex regulatory environment. Recent events in the East Coast fishery are clear testimony to the hazards.4 In addition, First Nation groups across the country are united in exercising their aboriginal rights within the fishery. Various court challenges have propelled their demands forward and have forced government policy makers to respond. Thus, the fishery has become both a place to exercise rights and to harvest a resource. The interplay of these two factors has challenged the regulatory regime in unprecedented fashion. The inland or riverine fisheries of the First Nations of the Upper Skeena watershed have a compelling history. This historical record reveals a consistent and purposeful pattern by federal officials to diminish, marginalize and attempt to extinguish these native controlled fisheries.5 With the development of industrial canneries on the coast, the commodification of fish, and the growth of a large commercial industry, the goal of federal regulatory policy has been to subjugate the inland aboriginal fisheries to a regulatory regime targeted to enhance commercial interests. This dynamic is clearly articulated in the following passage taken from the journal of a federal fisheries field officer on a trip up the Skeena River in 1904: At intervals during the conversation I explained the fisheries laws and regulations, that they must not use barricades and only fish one third the channel with their nets or any other contrivance, that they must observe the close season, they must not sell fish as they had done in the past, but only take enough for themselves and their families, and must not kill more fish than they use and not waste any. The Chief advanced many points and some of them were well taken, he said they have had an indisputable right for all time in the past, that if it was taken away the old people would starve, that by selling the salmon they could get iktahs, and he wanted to know to what extent the government would support them, he thought it unfair to forbid them selling fish when the cannerymen sold all theirs, and I had to promise him to tell the government to compel the canners to let more fish come 5 up the rivers, as some years they did not get enough, that the canners destroyed more spawn than they... that they (salmon) had diminished little by little every year (Helgeson 1906, p. 207) This debate concerning fishing weirs continued and was ultimately played out, in Ottawa, in 1906, with the federal Minister of Fisheries Louis Brodeur. At this meeting Helgeson and his crew and Chief George and Chief Tszak of the Babine Nation presented their differing views regarding the weirs. Brodeur pushed his men for proof that the weirs were a threat to the stocks. One of the men finally revealed an underlying purpose to the destruction of the barricades: The trouble is the Indians are so lazy and idle they will not do anything at all. The reason they want barricades is because the women can go and shovel the fish out. Let them come down to the cannery and work as all good Indians do, not loaf. The Babine Indians must realize that they must work as the other Indians do, they cannot be spared. (Meggs 1991, p. 79) As this passage illustrates the hegemony of the canneries was reaching far inland. Throughout this history, aboriginal groups made clear their resistance to this form of imposed authority which has never recognized their ownership or governance structures. Petitions to the Indian agent, elder's testimony, protests, and trips to Ottawa are all part of the historical record which documents community concerns over loss of authority, diminishing salmon runs and loss of an economic base. Yet, in over 100 years of the Fisheries Act only two commissions ever considered the real needs or desires of the indigenous population in the fishery.6 In the more recent era, D F O has generally attempted to treat First Nation groups as just one more user group in the harvesting chain with no special privileges or rights. Actions taken by D F O throughout the 1970s and 80s on the Skeena, were aimed at suppressing rights under the authority of the Fisheries Act. A lengthy campaign of harassment of aboriginal fishers, by the D F O , characterized the Gitxsan and Wet'suwet'en fisheries at this time. Nets were confiscated, arrests were made, and militia style raids were conducted on fishing camps along the river. 7 Finally, in 1990, the Supreme Court of Canada ruling on the Sparrow decision was rendered and the established order was overturned. The aboriginal right to a food, 6 social and ceremonial fishery was upheld and placed first before all other user groups. For the DFO, it could no longer be business as usual. This thesis seeks to analyze the policy response by the D F O to this changed judicial environment. It discusses the agreements which the D F O has implemented in order to attain a form of co-management in the inland fishery. It also seeks to understand how two parties with an entrenched history of conflict can work together to achieve common interests. Perhaps there is a path through the future which is less damaging than the past. 1.2 Study Area The study area is located in North-Western British Columbia approximately 250 km east of the coast. This area is home to the Gitxsan Nation which inhabits parts of the drainages of the Babine and Skeena Rivers; and home of the Wet'suwet'en Nation inhabiting the drainage of the Bulkley River. Map 1 illustrates the study area. As neighbours, these two Nations share much common history while speaking different languages. The Gitxsan speak a language which is a derivative of Tsimshian, while the Wet'suwet'en speak a language within the Athapaskan language group. Living in riverine settings, surrounded by mountains, these societies came to rely heavily upon salmon for their food supplies and for trading. Their connection to the fishing resource has not been broken by time or by government restrictions, as the case study will show. These Nations, and many others in the province, live inland from the ocean terminus of the river. Under the current management regime, their geographical position places them last in the harvesting chain and close to the spawning beds of the migrating salmon. This leads to a dynamic regulatory environment as coastal interception fisheries can greatly impact the stocks prior to their arrival in the aboriginal fisheries. This context will be explored further in the case study. Today, there are approximately 5,000 Gitxsan living in 7 communities and 2,000 Wet'suwet'en living in 6 communities. Unemployment rates in these communities are well over 70%. Revenues generated by local resources are one of the few options for addressing the chronic 7 7a unemployment. The case study will illustrate one example of conservation-based commercial harvesting which might be a model for other economic initiatives. 1.3 Thesis Goals and Objectives The goal of this thesis is to analyze the current regulatory structure within the inland aboriginal fisheries of the Upper Skeena. In order to achieve this goal a number of supporting objectives have been identified. They include (i) an outline of the divergent cultural value systems which underlie resource-based conflict in cross cultural contexts, (ii) a review of indigenous resource management in the fishery, (iii) the use of three frameworks to analyze the current context of the inland aboriginal fisheries and (iv) the identification of the implications arising from the case study for the future of co-management within the inland fishery. 1.4 Research Questions This thesis addresses the following research questions: 1. How did indigenous resource management systems of the Gitxsan and Wet'suwet'en function in BC prior to European colonization? 2. To what extent can opposing worldviews accommodate one another in fisheries resource management? 3. Is the current Gitxsan and Wet'suwet'en fishery co-managed? Is power-sharing occurring and if so how is it manifest? 4. In the current context of the inland fishery, is the assertion of aboriginal rights and title a fundamental prerequisite for meaningful participation in resource management? 5. How are co-management and empowerment processes linked? 8 1.5 Research Scope and Limitations This thesis focuses specifically upon the historical and current fisheries management regimes of the Gitxsan and Wet'suwet'en. It is not a comprehensive investigation into fisheries management in all inland fisheries. It is limited by this scope and therefore conclusions reached regarding the Aboriginal Fisheries Strategy must be tentative. It also does not focus upon the Department of Fisheries and Oceans' broad areas of authority over fisheries management practices and procedures. This would require much additional research. 1.6 Research Methodology and Organization Evaluating the application of a policy in a specific case study involves questions of a normative nature. The researcher must analyze the conditions which led to the articulation of the policy and the results arising from their implementation. In essence, it entails assessing what makes a process successful or not. This involves questions which are largely qualitative in nature. In this type of inquiry, the quantification of results is not appropriate. Therefore this research reflects the qualitative research paradigm where qualitative methods are used as the primary source of data collection. There were three basic methods were used to collect data on the case study. (1) Document Analysis. Public record documents and private source documents were collected to inform the researcher regarding historical aboriginal fisheries management, D F O actions and the Gitxsan and Wet'suwet'en Watershed Authority. As well documents pertaining to the Delgamuukw court case were reviewed as well as land use planning documents. The types of documents reviewed included maps, newspaper articles, public information materials and technical reports. (2) Personal Interviews with Participants. A total of 12 interviews were conducted with key participants involved in the case study. Interviews took place either in person or on the telephone. The personal interviews were conducted in Vancouver, Smithers, Moricetown, Terrace, Prince Rupert and Hazelton. Telephone interviews took place with people located in Kitamaat, Port Hardy, Denman Island and Ottawa. 9 Interviews generally lasted 1-2 hours and discussion focused on a set list of questions (Appendix 1 and 2). Telephone interviews were more informal, occurring a number of times with some informants, in order to fully comprehend substantive issues. Key informants included members of the following organizations - Skeena Fisheries Commission, Wet'suwet'en Fisheries, Gitxsan Watershed Authority, D F O - Pacific Region (Vancouver) and North Coast District (Prince Rupert), Haisla Fisheries. Other participants are members of the Gitxsan and Wet'suwet'en Nations, Tahltan Nation, fisheries consultants involved with drafting the Aboriginal Fisheries Strategy, fisheries biologists, an anthropologist who has written extensively on the Gitxsan and Wet'suwet'en and other researchers. Particular emphasis was placed upon interviews with officials responsible for managing the fisheries under the Aboriginal Fisheries Strategy agreements. These interviews were conducted to establish the context within which the current management regime was developed, what they thought worked and what didn't, what suggestions they might have for other First Nations who seek an active role in resource management, and what recommendations they might have for government in order to enhance co-existence in resource management. (2) Participant Observation. As a three year resident of a Wet'suwet'en community, I am surrounded by informal discussions which offer opinion regarding the strategies reviewed in the case study. These conversations with residents add an important layer of context and complexity to the research. In this situation it is impossible to be an impartial neutral observer. O n the other hand, some balance may be maintained due to my role as a government employee working within the natural resource sector. This allows me an informal understanding of the constraints within which government agencies must operate. The initial chapter of the thesis outlines the historical context, the goals and objectives and presents the thesis limitations. Chapter Two introduces the concept of worldviews which is fundamental to understanding the complexities of dealing with processes within a cross cultural setting. Chapter Three presents a conceptual framework for analyzing First Nations involvement in resource management. A n initial review of traditional resource management systems is presented and contrasted with government designed resource management. Three analytical models for assessing involvement in resource management and 10 empowered decision making are outlined. Each of these models -Common Property Resource (Ostrom 1990, Schlager & Ostrom 1992, Feeny, Berkes, McCay & Acheson 1990, Co-management models of Berkes (1994) and Pinkerton and Weinstein (1995), and The Ladder of Empowerment (Rochasl987) - all provide a method for analyzing the information arising from the case study. Collectively these models assist greatly in providing depth to the analysis. Chapters Four and Five present the findings of the case study. They detail the context within which federal fisheries authority has been expressed and historical information regarding the traditional governance structures of the Gitxsan and Wet'suwet'en. Profiles of a food fishery and commercial harvest are provided to give insight to the ways in which management is exercised. Agreements signed by both parties, under the Aboriginal Fishing Strategy, are analyzed in terms of the management responsibilities which are shared. A n example of policy options related to stock conservation is presented in order to illustrate how different perspectives and interests are addressed within the current regulatory environment. Barriers are also identified regarding the expansion of commercial inland harvesting. Finally, an assessment is made regarding the relationship between co-management, political empowerment and community economic development. Based on the case study, Chapter Six offers conclusions regarding the potential for an expanded role for First Nations in resource management in British Columbia. Recommendations regarding potential steps to enhance First Nations role in resource management are offered. This chapter closes with a review of the key lessons learned arising from the case study and comments on long-term resource sustainability. 11 TROUBLED WATERS Co-Management In the Aboriginal Fishery: THE CASE OF THE GITXSAN AND WET'SUWET'EN Chapter Two; DIFFERING CULTURES AND WORLD VIEWS 2.1 The Concept of Worldview This s tudy explores the interface between t w o different cultures representing two different resource management regimes. Ana lys i s w i t h i n this cross-cultural setting is incomplete wi thou t an understanding of the ve ry different ways cultures interpret real i ty and structure their existence. The term, w o r l d v i e w , has been used to describe the cul tural ly influenced perceptions shared b y a specific g roup . A w o r l d v i e w refers to "a cluster of interrelated concepts and values, deve loped through shared historic events, that shape the w a y a culture looks at the w o r l d " (Nicholas and A n d r e w s 1997, p . 39). H o w we structure reali ty, wha t we perceive, h o w we speak of wha t we see, w h y w e decide o n a part icular course of action a l l become areas of misunders tanding i n a cross-cultural context and are not s i m p l y expla ined b y reference to the pol i t ica l process of colonizat ion. Concepts of spirituality, knowledge, science, ethnicity, sacredness, jurisdiction, law, progress, land stewardship, time and change are difficult to explain across cultures. These concepts ... are fundamental to intellectual traditions - the ways in which knowledge and information are acquired, shared, cared for, and carried into the future. (Nicholas and A n d r e w s 1997, p . 35) In addi t ion , there is an inherent diff iculty associated w i t h s tudying and interpret ing the past of cultures that are different than that of the researcher. A n t h r o p o l o g y has been s t ruggl ing w i t h the p rob lem of whether western trained anthropologists can unders tand and speak for non-westernized cultures especially those w i t h n o wr i t ten records for 12 centuries. This debate is exemplif ied i n the w o r k of F a r d o n (1995), Sahlins (1993), and Turner (1993). W h i l e the d i l e m m a is a cri t ical one, it is w e l l beyond the scope of this s tudy. Instead, this s tudy assumes that there is enough va l id i t y i n the w o r k of cul tura l anthropologists w h o have s tudied indigenous societies that general, idea l ized characteristics can be seen and accepted as a fo rm of approximate truth. In order to examine h o w two societies (western and indigenous) w i t h two different governance systems - one rooted i n place w i t h an ethic of integration w i t h nature and the other rooted i n co lonia l expansion w i t h an ethic of dominance over nature - have interacted w i t h i n the fishery, it is important to h ighl igh t some def ining cul tura l characteristics. M a n d e r (1991) speaks of these as inherent characteristics w h i c h at an aggregate level define the nature of w h o we are as peoples. A key characteristic w h i c h dist inguishes the two systems of thought is their relat ionship to nature. A number of academics have argued that p r io r to the A g e of Enl ightenment and the separation of fact f rom value, the p reva i l ing v i ewpo in t was that of the planet as a l i v i n g be ing 8 . M o s t cultures bel ieved the earth was al ive, was female and was the mother of life. In the western w o r l d , this epistemology was qu i ck ly e l iminated b y adherence to a scientific set of pr inciples w h i c h replaced an holist ic ph i losophica l regime w i t h one marked b y dua l i ty - the separation of m i n d f rom b o d y and is f rom ought. The earth (nature) was not a be ing but a machine w i t h separable parts w h i c h cou ld be s tudied and control led b y man . This ph i losophica l premise has domina ted a l l western cultures un t i l the b i r th of a n e w environmental consciousness i n the last 40 years. W i t h the pub l i sh ing of the Ga ia Hypothes i s i n 1975, pre-technological or indigenous perspectives of nature began to re-enter the lex icon of western culture; but societies w h i c h were marg ina l i zed f rom the scientific revolut ion , general ly mainta ined their out look u p o n nature as a sacred and l i v i n g force to nurture. This is true of the Gi txsan and Wet 'suwet 'en cultures. Their socio-economic and pol i t i ca l insti tutions of governance reflect m a n y of the inherent characteristics evident i n other indigenous societies. To perceive these institutions as funct ioning as discreet departments as i n a m o d e r n nat ion state w o u l d be incorrect. Rather, the insti tutions were h igh ly integrated, per forming a mul t ip l i c i ty of functions, as is evident i n the feast system. C o n v e y i n g the degree to w h i c h these societies reflect vast ly different systems of k n o w i n g and acting, than the C a n a d i a n n o r m , was a major challenge for the defence i n the l andmark Delgamuukw case. 13 The Gitxsan and Wet'suwet'en worldview is of a qualitatively different order. To the Gitxsan and Wet'suwet'en, human beings are part of an interacting continuum which includes animals and spirits...The distinctive Indian worldview has direct implications in this court's understanding of the evidence relating to the nature of Gitxsan and Wet'suwet'en societies and their institutions, particularly those institutions through which the plaintiffs exercise their jurisdiction or authority. (Gisday Wa and Delgam Uukw 1987, pp. 24-30) This difficulty in communicating across cultures is of direct relevance to the issue of fisheries management because the entire history of interaction between the two systems is marked by the inability of one to even recognize the existence of the other. This was not simply due to a political process but rather represents the inability to see or perceive outside of one's cultural frame of reference. The following table presents idealized defining characteristics for the two culture types which are represented in the case study. This table is adapted from the work of Mander (1991). Those traits which are represented within Gitxsan and Wet'suwet'en cultures are italicised.9 Table 1 Indigenous Peoples Technological Peoples Economics . • No private ownership, rather communal ownership of resources - land, water, plant life. No concept of selling land. © Goods produced for use value or exchange (trading) value o Steady state economics - no concept of economic growth o Subsistence goals - little surplus production o Co-operative, communal production «> Nature vieived as being o Private property predominates including resources. State ownership and corporate ownership. « Goods produced for exchange o Capitalist economic expansion required for increased production o Competition and production for private gain e Nature viewed as a resource Politics and Power o Mostly non-hierarchical - chiefs have no coercive poiuer o Decisions based on consensual process involving whole tribe o Hierarchical political structure o Decisions made by majority rule, executive power or dictatorship e Concept of state 14 o Identity as Nation o Laws transmitted orally. No adversarial process. « Decentralization - power resides mainly in community. o Laws are codified and written o Centralization of power Religion and Philosophy o Spirituality integrated with all aspects of life «• Polytheistic concepts based on nature, male and female forces, animism o The dead are regarded as present, belief in reincarnation o Time measured by awareness according to the observance of nature o Sharing and giving ° Integration of past and present, time is cyclical in nature o Church and state separated, materialism dominant © Monotheistic concept of male god o The dead are gone o Time is measured by machinery « Linear concept of time, emphasis on future o Saving and acquiring Socio-Cultural o Small scale societies, lozv density o Lineage mostly matrilineal, family property rights run through female o Extended families « Revere the old • History transmitted orally o Large scale societies with high densities o Lineage mostly patrilineal s Nuclear family dominates o Revere youth o History written in books, TV Relation to Environment o Low impact technology o Living in harmony with nature, relationship of respect, exploited for immediate needs o Entire world viewed as alive, filled with spirit, humans equal part of the web of life o High impact technology to control environment o Living beyond carrying capacity, conquest of nature encouraged o Humans are superior dominant life form This list is not intended to represent the whole array of cultural traits witnessed in Gitxsan and Wet'suwet'en societies today. Rather, it is presented to introduce inherent differences which were present at the time contact occurred between the two cultures representing two resource management systems. As well, many of the political, socio-cultural, economic and religious characteristics presented are still articulated within Gitxsan and Wet'suwet'en cultures and they continue to surprise and confuse government resource managers. The following symbolic metaphors help to characterize the profoundly different worldviews represented by indigenous and westernized societies. If planners were attempting to develop a symbol to represent how planning could be approached in each society, they might decide the following shapes reflect critical underlying social processes. 15 Indigenous Societies C h a r a c t e r i s t i c s o f the C i r c l e N o b e g i n n i n g , n o e n d I n t e g r a t e d - u n i f i e d - i n t e r r e l a t e d C y c l i c a l W h o l i s t i c - a l l p a r t s i n t e g r a l t o the f u n c t i o n i n g o f the w h o l e Technological Societies C h a r a c t e r i s t i c s o f t he L i n e L i n e a r C o n t i n u u m B e g i n n i n g a n d e n d M e a s u r e m e n t o f p r o g r e s s A c h i e v e m e n t P a s s a g e o f t i m e T h e s e s h a p e s h e l p to i l l u s t r a t e h o w d i f f e r en t c u l t u r e s o r g a n i z e space , s t r u c t u r e r e l a t i o n s h i p s a n d a s s i g n v a l u e t o v e r y d i f f e ren t q u a l i t i e s o f l i f e . T h e r e f o r e , i n t e r a c t i n g across c u l t u r e s i n n o n - c o n f l i c t e d e n v i r o n m e n t s i s a n e d u c a t i o n , b u t i n areas o f r e a l c o n f l i c t s u c h as the f i sher ies , e f f ec t i ve ly a d d r e s s i n g th i s c r o s s - c u l t u r a l c o m p o n e n t c a n m e a n the d i f fe rence b e t w e e n peace o r v i o l e n c e . E a r l y c o n t r o v e r s i e s , w i t h i n the w e s t coas t f i she r i e s , ref lect the d i v e r g e n t v a l u e s y s t e m s at w o r k . O f f i c e r H e l g e s o n , e x p l o r i n g the S k e e n a i n 1904, d i d n o t p e r c e i v e tha t there w a s a m a n a g e m e n t s y s t e m t a s k e d w i t h 16 resource conservation in the inland fisheries (Helgeson 1906). His writing reflects the perspective that the fishery was an open access resource which was being wilfully depleted by non-compliants. He does not record the obvious fact that as he moved upstream on the Babine River he continued to find significant numbers of salmon pooled in front of successive weirs. This negated his premise that the weirs were blocking the movement of fish to the spawning grounds. This omission is either purposeful manipulation to subvert aboriginal interests in the fishery or it is the blind inability to recognize the existence of regulated controls which do not reflect the viewers cultural norms. Quite likely elements of both were at play during Helgeson's journey into aboriginal territory. The chapter has introduced the concept of worldview to assist in the analysis of interactions which occur within a cross-cultural context. It is argued that cultural filters limit perception which can lead to misunderstandings and friction between parties. Defining cultural traits or characteristics representative of the two parties in the case study (indigenous societies and technological societies) were introduced, in order to illustrate the different values and interests of the parties. These characteristics reflect the cultural norms of the two societies at the time contact occurred and the two resource management systems began to interact within the inland fisheries of the Skeena River. The worldview concept is important for it provides a more complete understanding of the events which have transpired in the Skeena inland fisheries. The following chapter introduces three analytical frameworks which will inform the analysis of findings arising from the case study. 17 TROUBLED WATERS Co-Management in the Aboriginal Fishery: THE CASE OF THE GITXSAN AND WET'SUWET'EN Chapter Three: ANALYTICAL FRAMEWORK In order to explain fisheries resource management policies, strategies and processes evident within the inland fishery of the Gitxsan and Wet'suwet'en, it is important to introduce relevant literature sources which can aid in the analysis. Conceptual models are presented which can act as lenses through which to view the information gathered. The following three analytical frameworks collectively help to explain the resource management practised by both the state and First Nations and the nature of the relationship currently unfolding. The three models are: © Common Property Resources (CPR) <» Co-management ® Ladder of Empowerment 3.1 Common Property Resource Theory Property is an important concept for defining the human relationship to the environment and natural resources. The way in which the bundle of rights over resources is allocated to groups and individuals is a key to understanding human actions. Property rights not only shape social interactions they also function as an allocation mechanism in relation to resources. According to a variety of authors (Ostrom 1990, Schlager & Ostrom 1992, Feeny, Berkes, McCay & Acheson 1990) the resource management dilemma for common pool resources, in an idealized situation, is linked to two key characteristics: 18 ® Excludability - the physical nature of the resource makes it highly problematic or costly to limit access by potential users. Examples of common pool resources include wildlife, fish, forest lands or the global atmosphere. ® Subtractability - use of the resource allows each user to subtract from the welfare of all other users. Essentially exploitation by one user adversely affects the ability of others to exploit the resource. The nature of these characteristics has created a challenging policy arena for agencies charged with regulating individual use rights for natural resources. Is the prudent strategy totalitarian control as Ophuls (1973, p. 229) suggests," even if we avoid the tragedy of the commons, it will only be by recourse to the tragic necessity of Leviathan" or lesser control which may prove ineffective? In order to operationalize the regulation of common pool resources a property rights regime must be applied. Property rights as suggested by Ciriacy-Wantrup (1975) is a social institution which carries with it a certain bundle of rights defined by the specific property regime. Property is then a tool for defining the human relationship to the environment and natural resources. When property rights are assigned to common pool resources, linking the biological and institutional environments, the term common property resource is applied. As Abrams argues " CPR theory has been developed from case studies of various governance arrangements aimed at sustaining the resource and benefit flow to users, and in so doing, avoiding Hardin's "tragedy of the commons" (Abrams 2000,p. 15). There are generally four idealized categories of property rights which apply to common pool resources: 3.1.1 Property Regimes 1. Unowned non-property or open access to which no-one holds the rights and no-one can be excluded. Generally resource access is unregulated as is the case in the ocean fishery beyond the territorial limits. 2. Individually owned private property where the ability to restrict access to a resource and regulate its use resides with an individual owner. 3. Communal property where access to the resource and regulation resides within an identifiable community of users. The rights are generally non-transferable. 4. State property which is the exclusive right of the government. 19 It is important to briefly review the concept of "tragedy of the commons" as it has led to a psychology of fear within many resource agencies and promoted a regulatory environment focused upon the restriction of perceived open access resources. Garrett Hardin's seminal article in Science (1968) condensed and reinforced popularly held perspectives regarding the potential over-exploitation of resources. His challenging metaphor of the "tragedy of the commons" has become one of the most widely held justifications for government regulation over commonly held resources. Essentially, his theory rests on the maxim that" everybody's property is nobody's property". His lasting contribution to resource management was to convey, in compelling fashion, the tragedy which will ultimately befall open access resources in the absence of assigned property rights. He used the metaphor of an open pasture resource to describe an inevitable situation whereby herders motivated by short term needs increase the size of their herds until over-grazing ultimately leads to the final ruination of the pasture for all. This situation Hardin argued could only be avoided through the privatizing of the resource or the imposition of state socialism as the regulator of access rights. His theory, that short term gain will prevail in open access resource situations, persuasive in its clarity and simplicity has had lasting implications for how resource bureaucrats have designed resource policy to govern situations of common pool resources. Fisheries management, in particular, has reflected a strong adherence to Hardin's tenet perhaps because its roots lie in fisheries management theory. Conservative market-based economic theory, as exemplified by H . Scott Gordon, paved the theoretical path for Hardin's work ten years later. Gordon's theory as reflected in his treatise, "The Economic Theory of a Common Property Research: The Fishery" warns of the same resource tragedy which will inevitably befall open access resources: Wealth that is free for all is valued by no-one because he who is foolhardy enough to wail for its proper time of use will only find that it has been taken by another...The fish in the sea are valueless to the fisherman, because there is no assurance that they will be there for him tomorrow if they are left behind today (Gordon 1954, p 124) Gordon and Hardin's perspectives have had profound influence on Canadian public resource policy due to the national economic dependency upon resource exploitation. Their philosophy and resource management strategy is recently articulated in fisheries management: 20 it is possible to manage fisheries successfully provided these facts are kept in mind...left to their own devices, fishermen will over exploit stocks and to avoid disaster managers must have effective hegemony over them (quoted in Berkes, Feeney, McCay and Acheson 1989, p. 81) If you let loose that kind of economic self-interest in fisheries, with everybody fishing as he wants^ taking from a resource that belongs to no individual, you end up destroying your neighbour and yourself. In free fisheries, good times create bad times... (Minister of D F O , 1980) (quoted in Ostrom, 1990) 3.1.2 Communal Property Resources Concept Concern for the long-term sustainability of a living resource is not unwarranted, but a variety of authors have sought to expand the limited theoretical confines within which Hardin designed his model. 1 0 They have challenged his assertions regarding common property resource management by focusing attention upon successfully managed communally held resources. Various examples exist of fisheries and wildlife populations which have been sustainably managed by local non-government or indigenous institutions.11 What is common in these cases is the application of a communal property rights regime to a common property resource. The outcome, rather than resulting in tragic depletion, is a stable and productive common pool resource. Many argue that Hardin erred in not appreciating that his herders owned their pasture in common, that it was restricted in access, and therefore they would take actions to maintain the resource base. That far from there being a "tragedy in the commons" there is actually a "benefit in the commons" (Berkes, Feeny, McCay and Acheson 1989). Many aboriginal communities have retained communal property resource systems that regulate resource use (Berkes 1993). With the wide spread displacement of aboriginal people from their lands during the twentieth century, it is remarkable that some of these systems have survived. Berkes (1989,1991) refines further the concept of communal property in relation to traditional First Nations tenure systems. His research indicates that communal property resources are not entirely open access as there are forms of regulation and control. The resource management system which arises from this form of resource allocation addresses itself to issues 21 of overuse and misuse. Access is restricted to members based on a kinship system and all access is restricted if there is a drop in wildlife populations or a perception of overuse. Resources are not owned by the aboriginal group but are viewed as coming from the Creator and the group has inherited a stewardship role. There are established protocols to follow in gaining access to resources and these rules are understood by the entire collective. Communal property resource systems continue to function as a resource management strategy in many First Nations. In particular, the James Bay Cree and the Inuit continue to allocate hunting territories based upon a kinship system rooted in communal ownership (Berkes 1994). In the case of the west coast fisheries, federal fisheries bureaucrats equated the communal property regime of the inland fishery, with an open access regime, either ignoring or with intent misrepresenting the governance system already in place. Aboriginal communities of users generally invest authority for management decisions to acknowledged hunting bosses, chiefs or stewards who are intimately knowledgable about the land and resources. Decisions are followed by the group and Usually involve input from all group members. Thus, the complex institutional and governance arrangements which developed within west coast aboriginal societies, to self manage and regulate resource usage, were denied any legitimate claim. By so doing, the federal department of fisheries established a legacy of conflict, hardship and sorrow within First Nations communities in the Skeena and Fraser watersheds. The case study will reveal that an indigenous resource management system was fully functional within the Gitxsan and Wet'suwet'en Nations at the time the Federal Fisheries Act was applied to British Columbia (1888). This governance system still functions in the allocation of fishing and territorial rights. 3.2 Co-Management 3.2.1 Shared Decision-Making, Redistribution of power Throughout the last two decades, government authorities have witnessed a sustained pattern of citizen dissent and civil disobedience and an increasingly complex regulatory arena.1 2 The pairing of an environmental agenda, assertion of aboriginal rights and title and demands for enhanced participatory democracy have pushed bureaucrats, academics, policy scientists, and members of the general public to consider new models for governance. In addition, there has been an explosion in the literature from the fields of mediation and conflict resolution. These actions are an 22 attempt by civil society to reconcile differing values, perspectives and opinions within governance. It has become clear that public policy which is not supported by the impacted public cannot be implemented. This situation is nowhere more apparent than in natural resources management. A n environmental consciousness, as reflected in the landmark Brundtland Report, Our Common Future, and the successful litigation of aboriginal rights directly challenge the authority of resource management agencies within both levels of government. It is no longer politically acceptable to divorce the public from a role in determining who has the right to allocate resources, what developments can proceed on Crown lands, and what environmental standards should regulate forestry. In a departure from the past, the BC provincial government passed the Commissioner on Resources and Environment Act in 1992. The Commissioner was mandated to develop a province-wide strategy for land use and resource management. A guiding principle is contained in Section 5 which states that if " a person or group will be significantly and directly affected by a land use issue or related resource or environmental issue under consideration by the Commissioner" they will be enabled to participate in the decision-making process. This form of shared decision-making (often consensus based) seeks to make citizens supportive of and accountable for the policy decisions they help to create. O n Arnstein's (1969) Ladder of Citizen Participation this level of public participation sits at Rung 6 - Partnership, while Dorcey's (1994) Public Involvement Spectrum places this form of shared decision-making at the far end under Seeking Consensus and Involvement on an on-going basis. Figure 1 Arnstein's Ladder of Citizen Involvement Citizen Control Delegate Power Partnership Placation Consultation Informing Therapy Manipulation Citizen Power sharing Token Power Sharing Contrived Partnership 23 Figure 2 Dorcey's Public Involvement Spectrum Inform Educate Gather Seek Define Test Seek Ongoing Info Reactions Issues Ideas Consensus Involvement X - Open House X- C O R E Round Table Increasing Level of Interaction Increasing Level of Time Shared decision-making is an inherent principle underlying co-management and these analytical models are useful tools to assist in recognizing the range of options available for public involvement. The type of involvement that is offered directly influences the level of real power-sharing that occurs and power-sharing is the basis of co-management. 3.2.2 Defining Co-management What is co-management? Co-management of resources is a concept which has attracted much attention over the last 15 years as First Nations have pushed for a more legitimate role in decision-making over the resources within their traditional territories. Utilizing both the formal powers of the court and more informal negotiating strategies, First Nations have won the right to legislated co-management within a variety of land claims settlements (Vuntut Gwich'in Final Ageement, Inuvialuit Final Agreement and the Nunavut Final Agreement). Thus, co-management as a governance mechanism, has been recognized by senior government as an important dispute resolution tool where there are shared interests. - • 24 Go-management enters the academic literature in the mid-80s and is reflected in government documents particularly in the last eight years 1 3 . Co-management is the term used to describe a variety of power-sharing arrangements between parties with interests in the same lands and resources. Berkes, George and Preston (1991) define the term as "the sharing of power and responsibility between government and local users " p. 12. Abrams (2000) building on the work of Memon and Selsky (1998) expands the definition to include, "co-management can generally be defined as power sharing in the exercise of resource management between a government agency and a community or organization of stakeholders designed to improve resource sustainability and advance socio-economic goals " (Abrams 2000, p. 16). Three defining characteristics of co-management models are: ® A focus upon process not only product. This is critically important in environments of conflict where few people are capable of listening to each other.1 4 This focus upon process also helps to facilitate a learning environment which can be critical for establishing bonds of trust which may improve working relationships on future issues. Developing co-operative processes may facilitate co-operative management. ® Co-management is an extremely flexible and adaptive management tool which can be applied to a wide range of circumstances. Agreements can be drafted which address localized and unique resource circumstances or broad and encompassing management issues as reflected in the Inuvialuit Final Agreement. ® In the complex and rapidly evolving legal environment of aboriginal rights and title, co-management is seen to offer a practical and immediate response to jurisdictional conflicts. In the absence of treaties, with clearly prescribed responsibilities, co-management agreements are seen to offer economic and political power to societies long marginalized by the political system. Like Interim Measures Agreements, co-management agreements offer confused bureaucrats an additional instrument for the policy toolkit in the heated world of unresolved aboriginal title. Why is co-management attractive to communities of resource users and government bureaucrats? Evelyn Pinkerton, an authority on co-management within the fisheries, argues that "co-management leads to 25 more appropriate, more efficient, and more equitable management" (Pinkerton 1989, p. 5). She summarizes the goals of co-management to be: e Co-management for community-based economic development; » Co-management to decentralize resource management decisions; and ® Co-management to reduce conflict through shared decision-making. The degree to which any or all of these goals or objectives is addressed in agreements depends on the varying perspectives and negotiating power that each party brings to the negotiation. As De Paoli (1999)notes: The relative importance of any of these goals depends largely on what role one plays in the co-management agreement. As resource users, aboriginal communities may consider more equitable management and increased community-based development of primary importance in any co-management agreement, while government bureaucrats may view efficiency as a more important goal of such a process. (De Paoli 1999, p. 19) Pinkerton and Weinstein (1995) suggest using the following management functions as a way to compare different fisheries co-management agreements. The degree to which these functions are shared jointly between the parties can illustrate the degree to which power-sharing is occurring. Fisheries co-management agreements generally include one or several of these key functions. 26 Table 2 (Pinkerton, Weinstein 1995) Fisheries Management Functions Policy Making and Evaluation Scoping problems, setting long-term objectives, research and education Ensuring the Productive Capacity of the Resource Monitoring habitat, enhancing/restoring habitat, enhancing stocks Compliance with Rules Enforcing and implementing rules Regulating Fishery Harvest Stock assessment, harvest planning, harvest monitoring Regulating Fishery Access Membership or exclusion, transfer of membership, allocation of harvest Resource Use Co-ordination Co-ordinating uses and management of - sport, commercial and subsistence activities and enhancement Returning Optimum Value to Fishers Quality enhancement, maximizing benefits through supply management and product diversity This table will be used in the case study to examine whether these management functions are present in the current agreements and how they are being implemented by the parties. Pinkerton and Weinstein (1995) also suggest that co-operative management with high levels of power-sharing can improve long-term sustainability. They argue that sustainability indicators need to include biological fish production, social and economic measurements. In order to assess sustainability we need to know: 1. "if the resource continues to reproduce itself; 2. if the resource's adaptive resilience is being maintained (its genetic diversity); 3. if harvests of the resource are continuing; 4. if the value of the fishery is maintaining itself (before and after costs are subtracted); and 5. if the human community which has depended on the resource in the past continues its relationship." (Pinkerton and Weinstein 1995, p. 190) 27 The case study will review whether any of these indicators are being achieved by the current management regime within the Gitxsan and Wet'suwet'en inland fisheries. McDaniels, Healey, and Paisley (1994) identified a series of fisheries co-management objectives by interviewing both First Nation and D F O representatives at the start-up of the Aboriginal Fishing Strategy in 1992. Their research was targeted to produce agreement on the key goals which co-management agreements needed to address within the aboriginal fisheries. The research was an attempt to provide informed opinion regarding the best design for this new co-operative management program. The participants were able to agree that the following set of objectives were key for the designing of meaningful co-operative management strategies within the aboriginal fishery. The objectives are considered equally important and are not presented in any rank ordering. Table 3 (McDaniels, Healy and Paisley 1994, p. 2119) Co-management Objectives Improving Stock Health/Diversity/Abundance Improving Community Economic Development from Harvesting/Processing/Management Improving Trust and Co-operation Between F N and D F O / and Other Users Improving Community Involvement Using Local Knowledge/Protection/Decisions Improving Equity for First Nations Interests Improving Opportunities for Learning 28 Case study informants will be asked if these objectives reflect their goals for the program and if any objectives are missing. A n important management function which is missing from the list is harvest allocation. McDaniels, Healey and Paisley (1994) indicate that their research participants felt that allocation was such a divisive issue that its inclusion in initial agreements would not build or foster trust between the parties. They did agree that it is a necessary component for developing incentive and responsibility and should be included at a later stage. This issue will be re-examined in the case study which is no longer in a preliminary or start-up phase. A primary goal in the case study will be to make initial comments on the successes or failures which have occurred during the nine year history of fishing agreements and shared responsibilities within this aboriginal fishery. For the purposes of this study success is defined to include management stability, community support, dispute resolution procedures, activities to enhance stock preservation, and recognition of local customs or law. 3.2.3 Power-sharing and Co-management In a more critical light, Campbell (1996) labels co-management the new buzzword in the field of natural resources management. Berkes (1994) reveals that in 16 co-management agreements in Manitoba, between government agencies and aboriginal groups, only a small number went beyond token consultation to engage in legitimate power-sharing. The very strength of co-management which is its flexibility and adaptability becomes its greatest weakness. To what degree is power-shared by the parties within the agreement? What one party labels co-management, the other may consider tokenism. Co-management appears to be a management tool in search of a proper theory. The literature has little to contribute to help define what real power-sharing is and when it is achieved. Pinkerton (1989,1994), Berkes, George, and Preston (1991), and Campbell (1996) all offer similar schemata for analyzing degrees of power-sharing. Their models owe their conceptual origin to Arnstein's (1969) Ladder of Citizen Participation which illustrates that public participation, falls along a continuum ranging from less to more. Pinkerton (1994) offers two simple frameworks for distinguishing between levels of power-sharing that can be contained within co-management agreements. Points 2-9 are considered to be forms of co-management. 29 Figure 3 Co-Management Spectrums 1 Self 2 3 4 5 6 Co-7 8 9 Management Management State Management Her second model is an inversion of the first in order to denote power-sharing within a central command or authoritarian structure. While these frameworks assist in recognizing that there is a vast range in levels of power-sharing contained within co-management, the placing of any particular agreement along the continuum is highly subjective without reference to any specified criteria to guide the analyst. This lack of definition makes it a difficult model to effectively utilize. Berkes (1994) offers another continuum which rank orders levels of power-sharing which characterize agreements within northern Canada. Figure 4 State Control Local Control 30 Figure 5 Berkes1 Schemata of Co-management Partnership/Community Control - partnership of equals, joint decision-making institutionalized - community participates in developing and implementing management plans - partnership in decision-making starts Management Boards -Advisory Committees • Communication-Co-operation -Consultation -Informing - start of two way information exchange - community starts to have input to management - start of face to face contact - community is informed of decisions This model more clearly articulates the kinds of stages which government agencies use within a First Nations context. In British Columbia, prior to the Delgamuukw ruling, state resource managers tended to adhere to the lower three rungs of involvement. In the post Delgamuukw context government is legally obligated to conduct meaningful consultation on all resource development which may impact First Nations communities. This automatically places potential co-management agreements higher up the ladder, ranging from rung 4-6. Campbell (1996) suggests that co-management within Northern land claims settlements represents levels 6 and 7 and that provincial-based co-management agreements will lag far behind until comprehensive claims are settled. 3.3 Ladder of Empowerment First Nations actions to redress issues within their fisheries are first and foremost community based expressions for change. Although, individuals perform the deeds, the mandate for action is usually vested within a clan, community or an entire Nation. This strategy reflects both the communal structure of indigenous societies and the collective nature of the resource. In order to broaden the analysis of activities which have occurred within the Gitxsan and Wet'suwet'en fisheries, it is necessary to introduce the concept of empowerment and the Ladder of Empowerment schemata developed by Rochas (1997). 31 Rochas' contribution to the literature has been to develop an analytical model which links individual empowerment with collective or community empowerment. This enables planners and other researchers focused upon institutional or public policy processes to view power in developmental stages which a group can move through. Empowerment lacks a solid definition, but Bush and Folger (1994) suggest that it has been achieved "when parties experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face" (p. 84). Rochas (1997) simply offers that "empowerment is a form of power" (p. 31), while Christian (1998) contributes that "empowerment is a social mechanism which allows underprivileged individuals and communities to be able to take advantage of social opportunities" (p. 21). A l l three definitions suggest that empowerment encompasses a range of power experiences, in much the same way that co-management encompasses a range of power-sharing. Thus empowerment which is developmental and process-driven and co-management which is likewise may be linked in a symbiotic relationship where one acts to influence the other and increase its resiliency. Empowerment Co-management Mediation and conflict resolution literature which examines how parties can and do operate within conflict offers some perspective on the process of empowerment. Laue and Cormick (1978) describe proportional empowerment occurring within the context of shared decision-making processes, such as the Skeena Watershed Commission: a condition in which all groups have developed their latent power to a point where they can advocate their own needs and rights, where they are capable of protecting their boundaries from wanton violation of others, where they are capable of negotiating their way with other empowered groups on the sure footing of respect (Laue and Cormick 1978, p. 219) Based on this perspective, one might argue that multi-party bodies, convened by government for problem resolution, are not only experiments in governance but act to promote proportional empowerment. In the end, this may be of more lasting significance to the local socio-political environment than the decision-making body itself. 32 Alternatively, Bush and Folger (1994) argue that mediated processes allow individual moral development but not transformation which would occur if there was a " restructuring of social institutions in a way that redistributes power and eliminates class privilege" p. 24. First Nations actions to litigate are aimed directly at achieving this transformation which is not perceived to be possible through the policy forum. Rocha's schemata builds directly upon Arnstein's Ladder of Citizen Participation (1969) with both models reflecting a continuum of citizen involvement and a continuum of empowerment. Rocha's model departs sharply from Arnstein's over the definition of power. Rochas argues that Arnstein's model is predicated upon increasing the amount of one specific type of power - the power to influence or control others. The Ladder of Empowerment on the other hand encompasses all four power experiences in the following table because its focus is on both individual and community experiences of power. It is this feature which makes the Ladder of Empowerment a useful heuristic device in the context of this study. Table 4 Power Experiences Power Experience Stage 1 -1 Gain Support Power Experience Stage 2 -1 Strengthen Myself Power Experience Stage 4 - J Gain Strength From Serving an Organization Power Experience Stage 3 -1 Have Impact and Influence on Others (Adapted from M c C elland 1975 in Rochas 1997 p. 33) As already stated in any discussion of First Nations activities relating to resources, explanation must be tied to the concept of community. Indigenous societies are rooted within a collective epistemology and the Ladder of Empowerment provides for the experience of power within a collective setting. 33 Figure 6 Rocha's Ladder of Empowerment Community Empowerment Political Empowerment — (Changes to public policy) Socio-political Empowerment — (Challenges to institutions) Mediated Empowerment (Knowledge transfer) Embedded Individual Empowerment — (Individual embedded in larger structure) Atomized Individual Empowment (Empowerment within an individual) Individual Empowerment Research conducted within the United States, is reviewed below in order to explore further the concept of community empowerment and its connection to community economic development. 3.4 The Significance of Litigation In depth analysis, by professors at Harvard University, into conditions on American Indian, reserves indicates a clear connection between the assertion of some form of sovereignty by a Nation and enhanced economic development; and by implication increased empowerment (Kalt 1993). The fundamental research question guiding the Harvard study was why and how are a handful of reservations (25) experiencing sustained economic development? What are the key reasons for this success? The answer hinged on three key factors. Those tribes which were economically most successful had: 34 1. Asserted their ownership or sovereignty in one form or another. They had taken actions to conduct business with government and private interests in a way markedly different from their previous approach. Generally they had staked a claim for involvement and control over their affairs. This was the first step in the road leading to economic success, Political empowerment was crucial and self governance over the key economic development decisions (resource management) enabled successful economic development. 2 . The political assertion of authority must be complemented by capable institutions of self government. A n effective tribal judicial system was critical for promoting investment. Separation of powers was critical -separating community politics from business. 3. The formal institutions of self government must match the underlying cultural norms of the society. Without this cultural match they cannot function effectively or truly assist economic development. The economically successful reserves had continued to use traditional mechanisms for governance and had developed effective and capable institutions for self-government. These findings are important for they document what First Nations leaders have been communicating for the past two centuries. Without the legal recognition of ownership and rights to a particular area, and without true authority to effect decisions regarding resources, healthy aboriginal communities will remain a dream. This understanding and insight regarding economic development is a core belief of many Gitxsan and Wet'suwet'en hereditary chiefs. It is this belief, that political empowerment is a prerequisite to economic development, which prompted them to take the Crown to court in the most significant aboriginal title case to date. The case study will address the process of empowerment and its connection to the fishery. This chapter introduced three conceptual frameworks arising from the literature review which will help to frame the case study. The concept of property rights is introduced as it helps to define the nature of the relationship between people and the environment. When a property rights regime is assigned to common "pooled resources", such as the fishery, the term Common Property Resource is applied. It is suggested that First Nations tenure systems represent a communal property rights regime with.resource access is restricted to members of kinship groups. It 35 is argued that this is defining feature of the indigenous resource management system. Co-management is described as a dispute resolution tool which is used in situations where there are unresolved jurisdictional issues. The key benefit of co-management arrangements is stated to be the delivery of more equitable management which leads to a reduction in conflict between the parties. There is a vast range concerning the degree to which power is shared within agreements with the greatest power-sharing occurring where it is bounded by legislation (Northern Claims settlements). The concept of empowerment is reviewed in order to broaden the analysis of activities which have occurred within the inland fisheries. Rochas' (1997) Ladder of Empowerment is introduced as it describes stages of empowerment that marginalized individuals or communities may move through in the process to establish authority. Research which highlights the significance of litigation to the process of political empowerment, within First Nations, is also presented as it is of direct relevance to the Gitxsan and Wet'suwet'en case study. These analytical frameworks guide the collection of data which are presented in the following chapter. 36 TROUBLED WATERS Co-Management in the Aboriginal Fishery: THE CASE OF THE GITXSAN AND WET'SUWET'EN Chapter Four: CASE STUDY This case study, Chapters Four and Five, focuses upon the current management context expressed within the inland fishery of the Gitxsan and Wet'suwet'en Nations. Description is provided of the indigenous management and governance systems which developed to regulate the fishery and which continue to influence the current regulatory regime. It is argued that the hereditary system represents the functioning of a communal property regime and that government officials did not recognize the legitimacy of this system.1 5 A n historical overview is presented in order to establish the context within which the current fishery has evolved. Information is presented regarding the agreements signed between the Gitxsan and Wet'suwet'en Watershed Authority (GWWA) and the Department of Fisheries and Oceans to manage the Skeena inland fisheries. The management functions in these agreements are identified and analysis regarding progress to date in implementation is provided. Chapter Five completes the case study by focusing on First Nations fisheries management strengths and the contribution of the Aboriginal Fisheries Strategy is discussed. Two policy issues are presented in order to understand how conservation is applied in practice; and to focus upon the barriers which have to be overcome before an expansion in commercial harvesting for upriver First Nations. Analysis is also provided regarding the connection between co-management, political empowerment and community economic development. Chapter Six presents recommendations for enhancing co-management and conclusions arising from the case study. 37 4.1 The Gitxsan and Wet'suwet'en Relationship It is important to understand the relationship between the Gitxsan and Wet'suwet'en Nations. The Gitxsan and Wet'suwet'en have been neighbours and allies in this landscape for centuries before contact. The following quotation refers to the origins of their relationship. The northern Gitxsan had active and peaceful relations with their neighbours at this time. They occupied a site known as Temlaxam. The socio-political institutions of the Gitxsan at Temlaxam were influenced by their neighbours, the Wet'suwet'en, as were their spiritual beliefs and practices.... In the same period as the founding of Temlaxam, Dizkle (Wet'suwet'en) was also founded... Temlaxam and Dizkle were, in a sense, sister cities then, each founded with an element of the other, each the meeting place of two cultures which, from that time, were intermeshed, yet distinct. Here, then, at Temlaxam and Dizkle, began the millenia of cultural interweaving that created the contemporary union of the Wet'suwet'en and Gitxsan. (SCBC plaintiffs argument Ex. 1050, p. 123-169) In the modern context, the Gitxsan and Wet'suwet'en were united in 1976, as a political body developing collective strategies through the Gitxsan-Wet'suwet'en Tribal Council. Together, they entered the court system in 1984 to assert their claim to territories belonging to the houses and clans in both Nations - Delgamuukw decision. In 1994, they separated into two political bodies. The case study describes fisheries management within both Nations. The current Aboriginal Fisheries Strategy agreements are delivered to the Gitxsan Wet'suwet'en Watershed Authority (GWWA) which includes both Nations and the Gitanyow Nation. Because the histories of the two Nations are intertwined the case study focuses upon both. In the analysis of results in Chapter Five, there is an attempt to differentiate between the two (Wet'suwet'en Fisheries and Gitxsan Watershed Authority (GWA) where it is important to do so. 38 4.2 The Gitxsan and Wet'suwet'en Indigenous Fisheries The following section introduces some key aspects to the functioning of past and present Gitxsan and Wet'suwet'en cultures. These elements are important to review for they help to explain both the historic resource management system and the governance context within which it was practised; and which continues to have effect today. The case study will illustrate how the historic management and authority systems are currently incorporated into the co-operative management agreements with DFO. 4.2.1 Respect for the salmon. Respect for living beings has been an important feature of Gitxsan and Wet'suwet'en cultures. Peaceful relationships with the animal world were important to maintain and this could be accomplished by respecting the life spirit of the animal. For these societies which were so dependent upon the salmon food source, respect toward the fish was of utmost importance. Morrell (1989) indicates that there is a strong belief that animals who are mistreated possess the ability to punish those who have mistreated them. Therefore, there are strong protocols to observe in order to act appropriately. The Gitxsan and Wet'suwet'en believe that the salmon give themselves intentionally and willingly to specific people or families, to whom they refer as hosts. The salmon expect their human hosts to treat them with respect, to consume all edible parts and to dispose of all unused parts in the river, in a fire, or by burial so that the parts will be available to the fishes' spirits for reconstituting themselves.16 This belief system continues to express itself today. Gottesfeld (1994) recounts a recent incident occurring in the Moricetown Canyon fishery involving a drunk fisher who was deliberately killing unwanted fish. A large fish caught on his gaffing hook and he was pulled into the river by the fish and drowned. A Wet'suwet'en observer concluded that the fisher was not showing the proper respect due to the salmon. Elders continue to 39 instruct the youth that they are to ask the forgiveness of an animal before they shoot it - to not do so is to show disrespect.17 4.2.2 Territoriality - Common Property Resource As discussed previously, state fisheries management has been predicated upon a false assumption about the property regime within which the traditional aboriginal fishery evolved. The state perspective has posited that access to the resource is not restricted - open access - and consequently conservation is jeopardized. The logic follows that in order to limit access to the resource, privitization of rights and/or licensing is necessary. This view of the inland fisheries of the Gitxsan and Wet'suwet'en is completely incorrect and does not recognize the inherent communal property regime which operates to regulate the fishery and minimize resource depletion. What follows is a general description of the property rights regime and institutional structures which governed the traditional fishery and which continue to do so. First and foremost, access to the resource base is based upon both kinship affiliations and the division of traditional territory into discreet hunting territories. These smaller territories are watershed-based with boundaries following a drainage divide from the valley bottom to the alpine (Gottesfeld 1994). Territorial units within both Nations were/are assigned to House groups with ultimate authority residing in the House chiefs. It is the chiefs responsibility to manage the resource base on their territories ensuring that there is an adequate supply to sustain the group. The harvesting of territorial resources was/is a communal effort, particularly within the fishery. The chiefs function as resident authorities regarding local wildlife populations and appropriate hunting levels. Their knowledge was/is gathered from both direct experience and oral history. Decisions regarding the territories were/are made communally and discussed within the House groups which are matrilineal groupings of genetically related people - "one's closest relatives on one's mother's side are in one's house" (Mills 1994, p. 107). In times of resource scarcity, access to another chief's territory was possible once appropriate protocol was observed(usually access to other territories is also based on kinship(i.e. father's House). Unauthorized access could result in death. When a person, trespasser, steals onto someone else's fishing site, we have the authority to shoot this 40 Source: Office of the Gitxsan-Witsuwit'en Hereditary Chiefs Territories of the Witsuwit'en Chiefs M A P 2 40a trespasser or stealer because he has broken our traditional law. Only the direct descendants of this fishing site are allowed on this site.18 Map 2 reveals the complexity of the territorial divisions. The boundaries of the territories and the chiefs' names associated with each, is a matter of oral history. When these maps were prepared in the 1980s for the Delgamuukw court case, there was great discussion amongst the elders regarding the territorial divisions.1 9 Their parents had trained them as Small children to remember where the boundaries were and to respect another's territory. When your grandfather tells you to do something, you do it because of respect for him, and when he tells you not to trespass on someone else's property you do not break the law.. .There would be a lot of trouble between the people in his house over fishing, hunting, trapping and berry picking20 Chiefs earned the respect of the House and others through their management abilities which were witnessed in the feasthall. Resources gathered from the territories would be distributed through the feasthall. A chief's ability and willingness to share established great prestige. Thus, the system which evolved and continues to be practised today is a resource management regime characterized by communal property rights which operate to regulate resource access and support conservation. Additionally, management and production within this system are integrated, not separate functions as in the commercial fishing industry. 4.2.3 The Fishery and Seasonal Rounds Since time immemorial, aboriginal societies have developed settlement patterns which reflect the cyclical nature of the living resources which provided their food supplies. Both coastal and inland communities developed a seasonal round of harvesting, moving from winter camps to summer fishing camps to secure food supplies. Both the Gitxsan and Wet'suwet'en exhibited this pattern, moving between their cedar longhouse summer fishing villages to hunting territories in the fall (Mills, 1994, p. 40). As typical of interior Nations, the Wet'suwet'en winter settlement pattern was quite dispersed with only 1 or 2 families living in proximity on the hunting territories. When the spring fishing season arrived families returned to communal fishing camps along the river banks. This was a time of feasting and celebration to honour the return of 41 the salmon. Smoke houses and racks were located near the harvesting locations and were in constant use to prepare the quantities harvested for winter supply. Archival photographs show a fishing village in Hagwilget Canyon still standing in the early part of the century. Once food and trading needs had been met a dispersal process began back out to the territories. Activities which took place there included berry picking, caribou and goat hunting and the processing of skins (Johnson 1997, p. 32). Sometimes these activities would involve a group of families operating out of temporary camps but always the winter living pattern was significantly dispersed in comparison with the fishing villages. When winter was at its peak trapping for marten, wolverine, moose or deer would be the focus of activities. When snows melted and the leaves returned the migration back to the fishing sites would begin. 4.2.4 Governance System - Role of the FeastHall The feasthall functioned as the seat of governance for the Nations of the Skeena watershed. Feasts (potlaches) were/are the formal mechanism by which traditional laws are ratified and implemented. Mills (1994) argues that populations which were dispersed but which maintained discrete territorial divisions required a forum to settle grievances and disputes. Peacekeeping is one of the functions performed within the feasthall. This might be witnessed by way of a "shame" feast where one party erases the shame he has brought on himself by holding this feast. It also is observed when the name and title to a territory is conferred and witnessed by the whole community. Robes, crests and songs all accompany the transfer of a chiefly name. If consensus could not be reached in the feasthall violence or war might follow (Johnson 1997, p. 32). Rank and stature within this system is achieved through generosity. A chief could gain great standing by sharing the resources of his territory to the fullest. By so doing the Chief demonstrates that he and his family are successfully doing their duty of managing their relationship with the populations of their territory. Historic potlatch goods would have included fish, meat, skins and berries. This dispersal of goods through the feasthall acts as a community support system for members who could be in need. In addition, the acceptance of the goods signals the acceptance of the business as performed in the feast. In due time, there will be a payback from the recipients who feel an obligation to contribute when they have the resources. 42 When a chief dies his/her Clan or House appoints the person, from within the House, who is most ready to wear the name. This would be someone with the trust of the group and knowledge of the feasthall and territories. They would function as the spokesperson for the group and lead them in the business to be conducted in the feasts. The Gitxsan and Wet'suwet'en Nations, which are territorially-based and represent many individual House groups had need for the parliamentary functions of the feasthall. This collective governance structure was/is also marked by clear differences in rank. Like coastal Nations it was/is hierarchical with feasthall seating assigned by rank. The highest ranking member of the Clan or House is the one with title to the hunting territories and fishing sites. When a Clan or House hosts a feast, the berries and meat which are served, come from the host's territory and act to reaffirm their connection to their land and their success as managers. 4.2.5 Fishing Access/Traditional Gear Canyon sites along the Skeena and Fraser systems provided popular locations for fishing as the fish were forced into concentrations in the narrow openings. The accompanying photographs illustrate the extensive use of traps and baskets used to catch the fish. Canyon sites often had elaborate platforms from which to manage the traps and baskets. Traps were often placed near the back eddies of the rivers where the fish pooled and rested. This was the technology applied at Moricetown canyon prior to the blasting in the 1920s. Traps which allowed the fish to swim in but not out, were often made from bent willows. Elaborate preparations were usually taken to make the traps well in advance of the fishing season. The other major harvesting technology used was weirs. These were fence-like structures built in shallow, relatively slow moving sections of the river and they would guide the fish towards the traps or would stop the fish and then they would be harvested. Some weir sites blocked the narrower channel where a river divided around an island. Some weirs had removable sections which would be taken out when fishing stopped and the fish would proceed upstream. The Gitxsan usually located weirs on major tributaries of the Skeena (Kispiox, Kitwanga, Slamgeesh and Babine Rivers), while the Wet'suwet'en erected at least one weir on the Bulkley above Hagwilget. 2 1 Weir technology was highly effective and efficient although it required much effort to build one as Helgeson's account reveals (Helgeson 1906). 43 Fish Traps in Hagwilget Canyon BC Archives Photo 43a Fishing access was governed by the hereditary system with sites belonging to a particular House or Clan. Permission to use sites had to be obtained from the chief and might not be granted in particular circumstances. This territorial system of ownership acted to restrict access and set limits on exploitation. According to Morrell (1989): The person with authority over a fishing ground is responsible in the broadest terms for ensuring that the site and its products are used in accordance with the fishing laws and traditions. If all rules are observed, then in the Gitxsan and Wet'suwet'en view, all members of the kinship group will get the fish they need and the fish will continue to return to the fishing ground to provide for the needs of the group (Morrell 1989, p. 223) 4.2.6 Economic System - trading fish As well as meeting subsistence needs, the Gitxsan and Wet'suwet'en participated in significant bartering and trading with groups further in the interior. William Brown, a Hudson Bay trader, wrote in 1822 of a well developed internal pattern of exchange within and between local villages. It was Brown who penned the phrase that the Babine and Wet'suwet'en chiefs were "men of property" referring to the House territories (Ray 1988, p. 4). 2 2 Some historical research indicates that periodic natural fluctuations in Fraser River salmon populations, meant interior groups could experience years of acute salmon shortage. Sockeye returns to the Fraser River system follow a four-year cycle: one large return, one large but lesser year, and two years of very low returns. These cycles have occurred since earliest, known times, and their precise cause is unknown. 2 3 Skeena sockeye returns, in contrast are much more stable from one year to the next. The Carrier people of the Stuart River system (upper Fraser) relied on trade with the Ned'u'ten of Babine Lake (Skeena system) to obtain sockeye in years of low returns to the Stuart system. The Hudson Bay Company relied on the fishery at Fort Babine to supply their upper Fraser posts in Fraser system off years. 2 4 Skeena Nations also supplied quantities of salmon to the crews involved in the building of the Grand Trunk Railway in 1910-14.25 Helgeson (1906) refers to the significance of the salmon trading network which had been established by Skeena Nations: The Indians do not only catch and cure salmon for their own use, but herd it up every year for sale and barter, it is a sort of legal tender amongst them, 10 salmon for a dollar 44 and so many for a blanket: they sell dried salmon to packers and miners, to all those that haul with dog sleighs, in every part of the upper country during winter, and to merchants, every store keeper that I asked told me that they handled more or less every year. The Babine post had an order from Stuarts lake for 9,000 dried salmon. (Helgeson 1906, p. 210) 4.3 The Modern Gitxsan and Wet'suwet'en Fisheries In order to appreciate actions taken in the fishery during the last decade, it is important to briefly review general regulatory policies of D F O and to introduce key court rulings which directly impact the current regulatory environment of the aboriginal fishery. 4.3.1 Early State Regulation The first set of Fisheries Regulations took effect in British Columbia in 1888. As previously discussed, official state imposition of regulations, within the interior drainage of the Skeena, were not expressed until the turn of the century. Between 1876 and 1929 there were in excess of 20 cannery sites along the Skeena (Newell 1993, p. 68). The attendant growth in industrial production had deep consequences for both the stocks and aboriginal communities. Canneries required labour forces and the only stable communities in the north were aboriginal. Marchak (1987) writes that: Canneries, especially in the north, were, in the beginning, almost completely dependent on Indians as a source of labour in both fishing and shorework. Canneries would locate near Indian communities for the explicit purpose of using Indian labour...In 1887, the Nass and Skeena Rivers salmon were caught almost exclusively by Indians...out of 100 fishing licenses on the Skeena, only 40 were held by fishers, the balance being held by canners. (Marchak and McMullan 1987, p. 255) The initial Fisheries Regulations introduced the concept of licensing, giving the Minister the right to decide the number of boats and nets to be used. According to Newell (1993) a limit of 500 licenses was imposed on 45 the Fraser in 1890 and in the conflict that ensued, the fisheries department learned two critical lessons: ® License-limitation stimulated new cannery construction rather than restricting it, as cannery operators built more canneries in order to secure more licenses; and © License limitation did not guarantee adequate escapement of the stocks. The outcome of this analysis was for the department to recommend other regulatory mechanisms such as gear restrictions, area restrictions and closed times. These management mechanisms continue to be the main instruments by which the agency currently controls allocation. What followed in 1908 was that fishing effort would be restricted by limiting the number of canneries and attaching all vessel licenses to canneries (Newell 1993, p. 74). This marked the beginrdng of a lengthy history of aboriginal opposition to licensing and agency enforcement of license conditions. The gillnet fleets in the north were owned by the canneries and licensed to operate by them. Any natives wishing to fish legally had to use one of these boats. Cannery operators made them available on a leasing basis fostering a dependent relationship. Many other natives continued to use their small craft to sell fish to licensed boats which was of course deemed illegal (Newell 1993, p. 75). What is important about the preceding information, is that license limitation was used as a limiting mechanism from the early days and its application did not provide the intended result - reduction in fishing effort. In addition, licensing requirements acted to create economic stratification within the fishing industry leaving aboriginal fishers, participating in the coastal industry, near the bottom of the ladder. Regulations imposed in 1917 requiring native food fishers to obtain federal operating permits attempted to impose on the inland fisheries the same types of gear, area and seasonal restrictions used in the coastal industry. The perception was that these fisheries were unmanaged, uncontrolled and depleting the salmon populations. There was little consideration of the fact that they had been managed sustainably for millenia. Thus, according to the letter of the law, the aboriginal fishers were now fully subjected to state authority with no right to sell the harvest or for anyone to purchase it legally. These regulations were not seriously enforced in the Gitxsan and Wet'suwet'en territories until about 1970, but they have been a major source of conflict since then (Morrell 1989, p. 235). The regulations prohibiting commercial sale remained in effect until the last 10 years. As will be explored in the case study, First 46 Nations groups resisted these restrictions strongly, during the 1980s, using creative measures and the courts to overturn these federal controls. 4.3.2 State Management - Sinclair/ Davis Plan By the 1950s, it was clear that any controls on commercial fisheries were not adequate to sustain harvest levels. Skeena harvests peaked in the 1930s and hit historical lows in the '50s. Regulations imposed by the federal government were not reducing the impacts of fishing. One of the reasons was massive technological innovation affecting all gear types. The mobility and efficiency of the fishing fleets expanded unchecked by regulation. The D F O concentrated its efforts on "reducing fishing times and fishing efforts in the net fishery, not by limiting capital investment in boats" (Newell 1993, p.124). The Davis Plan announced in 1968 was to revolutionize the industry by providing full-time employment concentrated into a smaller fleet. Davis introduced 4 license categories -A,B ,C and D which were intended to stabilize the size of the fleet leading to an increase in conservation. Instead, tonnage and harvesting capacity increased, especially on A license boats. License buy-back was also introduced aimed at decreasing capitalization and harvesting capacity. As tried at the turn of the century this attempt was unsuccessful. While the fleet was decreased by 2,000 boats between 1968 and 1976, over-capitalization (the increase in boat size and power) which increased capacity more than offset this fleet reduction (Marchak 1987, p. 92). The goal of salmon conservation was not achieved and the federal government introduced the Salmonid Enhancement Program in 1977 to bolster salmon populations using hatcheries. Control of harvesting capacity did not appear to be working. By the early 1980s, concentration within the industry had forced the closure of processing plants (Cassiar, Port Edward), fishers were experiencing high debt loads caused by higher gear investments, and recession was impacting the entire industry. The Minister of Fisheries convened the Pearse Commission (Commission on Pacific Fisheries Policy) to provide recommendations. His findings, contained in the report, Turning the Tide, not only addressed the commercial industry with new licensing proposals and criticism of hatchery programs but clearly laid the blame for stock depletion on over-fishing. A major conclusion reached was that commercial over-fishing needed tight controls and aboriginal groups needed more involvement in their fisheries rather than more regulations which they had no role in creating. This perspective was 47 at odds with federal policy which reasoned that aboriginal rights had been extinguished by years of regulatory controls.2 6 Pearse (1982) suggested the mechanism of multi-year contracts between D F O and First Nations be negotiated to facilitate the real involvement of First Nations in fisheries management. These findings were nothing short of visionary at the time and caused uproar from sectors who did not want to see any expansion of aboriginal rights. It would be another decade until the recommendations concerning aboriginal fisheries would begin to see the light of day. 4.3.3 Gitxsan and Wet'suwet'en Fisheries Actions 1980s The Gitxsan and Wet'suwet'en operated as one political body, via the Gitxsan-Wetsuwet'en Tribal Council, throughout the 1980s. Actions taken within the fisheries were supported by chiefs from both Nations. These actions were not isolated to this area but reflected a growing frustration of aboriginal communities marginalized from resource decision-making. The Boldt decision, in Washington state in 1974, created a sense of hope. This decision directed 50% of the annual salmon harvest to treaty tribes. Although it would take over a decade to fully implement, it was a mandate for Washington tribes to expand their share of the commercial salmon fisheries. In Canada, the relationship, between D F O and the First Nations throughout this decade, was marked by suspicion and distrust. The D F O exerted its jurisdictional authority through its enforcement branch seeking compliance with the Fisheries Act. As their activities intensified they were met with united community resistance. The tactics employed by the D F O were aggressive and intimidating and helped to solidify local opposition. Under-cover operations, confiscation of gear, arrests, armed raids on family fishing camps and a militia style presence all were tactics employed to suppress activities which were seen to be violations of the Act. In response, the Nations asserted that they had an aboriginal right to fish when needed and that D F O actions were a violation of their freedoms. In essence, the Tribal Council was seeking D F O recognition of the management authority of the House chiefs under traditional law. It would take another decade before this recognition was received. This confrontation climate was expressed throughout the province with many arrests of individual native fishers and many court cases. One 48 undercover operation in 1977 led to the arrest of 23 fishers in Gitxsan and Wet'suwet'en territory. The Tribal Council provided legal defuse for those charged, and D F O was unable to obtain any convictions (Morrell 1989, p. 245). In 1984, Ronald Sparrow of the Musqeum Nation was arrested and charged with possessing a net which contravened the terms of his Band's food license. It would be six years until this case was fully prosecuted and would establish a new legal context for aboriginal fishing rights. In the meantime, the Gitxsan and Wet'suwet'en decided to exercise their rights within the fishery by using a legal instrument at their disposal. Under the Indian Act band councils can make by-laws for "the preservation, protection and management of fur-bearing animals, fish and other game on the reserve" (Cassidy and Dale 1988, p. 45). This clause allowed them important leeway and they began to work with local band councils to draft by-laws which could enhance their authority over the fishing resource. Band Council Resolutions (BCR) were rarely of interest beyond the boundaries of the reserve and rarely were seen as a challenge to federal jurisdiction but they did offer a path for protection against charges applied under the Fisheries Act. In 1986, four bands within the Gitxsan and Wet'suwet'en Tribal Council adopted fisheries by-laws which were passed by the Minister of Indian Affairs. The by-laws contained sweeping powers for aboriginal fisheries management including provisions to fish when and how the community wished and included provisions to sell, barter, trade or buy fish caught within reserve lands in accordance with traditional laws (Cassidy and Dale 1988, p. 78). These provisions directly contravened regulations within the Fisheries Act which expressly limited native fishing to subsistence needs only. Both DFO and other harvesting groups were not prepared to see this assertion go unchallenged and within a matter of months the BC Attorney General obtained an injunction and the Minister of Indian Affairs announced a suspension. But the by-laws were put in practice by the Tribal Council for one fishing season and confrontations with the agency escalated. The lasting significance of the by-laws was that the Gitxsan and Wet'suwet'en developed and implemented a strategy for enhanced participation within the fishery which incorporated their traditional governance structures. In addition, they also were able to develop longer term goals for management arising from detailed biological studies they had conducted a few years earlier. In 1985, they released a report with a number of recommendations aimed at improving the productive capacity of the resource (Morrell 1985). One specific recommendation was that 49 D F O move to selective stock by stock management. Inland fisheries were dependent upon regulations applied at the coast in a mixed stock environment. The Nations argued that inland harvesting would provide more protection to wild stocks which could be harvested in a more selective manner. In addition, they proposed a legalized inland commercial harvest, for two enhanced runs of sockeye, whose surplus population could not be fully harvested at the coast without over-harvesting intermingled wild stocks. At the time, this was a revolutionary proposition. In 1992, following a landmark court ruling pertaining to aboriginal fishing rights (Sparrow decision), the federal government introduced the Aboriginal Fisheries Strategy (AFS) as its policy response. Because the Gitxsan and Wet'suwet'en had been extremely pro-active in fisheries management they were able to hit the ground running when the AFS was announced and helped to craft the initial program direction. They had a clear sense of what goals they wanted to achieve biologically, politically and managerially. It is interesting to reflect that the regulatory conditions the Nations established under the by-laws, which were resisted so strenuously by the agency and other harvesting groups, are now the modus operandi for the AFS agreements. Specifically, an open season for the food fishery, community regulation of fishery access (traditional system), local enforcement, conservation measures and stock monitoring. The Gitxsan and Wet'suwet'en developed a vision which was ultimately reinforced by the courts and which the case study will illustrate continues to guide their actions. 4.3.4 Skeena Watershed Committee 2 7 Another important event coincided with the implementation of the AFS and the demands by the Gitxsan for a legalized commercial harvest. This was the formation of the Skeena Watershed Committee, a multi-stakeholder, shared decision-making body, consisting of government and all harvesting sectors within the watershed. It was convened by D F O as an experimental process to help address deep conflicts between harvesting groups with competing interests at the watershed level. Confrontational relations between harvesting groups in the '80s have improved during the last eight years, partially due to this process. In 1992, the Committee was tasked with developing a consensus-based commercial fishing plan that would address steelhead conservation measures. Specifically, there was to be an agreed upon exploitation rate 50 and established openings and closures. While this was the focused task, there were many other issues discussed of importance to all harvesting sectors including habitat protection, stock assessment, enforcement and watershed restoration. Both the D F O and First Nations interviewees universally agreed that the Skeena Watershed Committee was instrumental in forging strong personal relationships between harvesting sectors which established a degree of trust. The Nations indicated that it was a useful forum to share their concerns, to conduct education and to articulate their unique position which is more than just another stakeholder. The D F O articulated that the commercial sector felt forced to the table in order to avoid perceived "draconian" D F O conservation measures aimed at protecting declining steelhead stocks. The Committee ultimately unravelled in 1996 when the commercial sector left the table. The commercial representatives did not have the support of their members to stay in the negotiation process and they decided their interests could be better served through political channels. The confrontational relations between harvesting groups in the '80s have improved during the last eight years, assisted partially by the multi-stakeholder Skeena Watershed Committee, convened by D F O to address issues at a watershed level. Both the D F O and the Gitxsan participants interviewed, indicated that there is a need for another cross sector process but it is difficult for participants to imagine that a new process could sustain itself. Once a committee takes on the role of an allocation board the psychology of winners and losers begins to dominate interactions. There is still a gap to be bridged between the players in the Skeena system as cross-sector interests are not fully shared. The recent formation of the Skeena Conservation Alliance (discussed later) was designed to avoid this difficulty. This section has highlighted that a period of confrontation between parties can evolve into a productive and creative context of new possibilities. The following sections will profile how court rulings have assisted in clarifying First Nations aboriginal rights and how the inland fisheries of the Gitxsan and Wet'suwet'en are expressing themselves in the new context. 51 4.4 Court Rulings The role of the courts in establishing new regulatory policy within the fisheries is critical. As First Nations resistance to state regulations (gear, catch and opening restrictions) has intensified, they have turned to the courts to seek clarification on aboriginal fishing rights and state regulatory control. A key distinction is made by the courts concerning aboriginal rights prior to the enactment of the Canadian Constitution in 1982. In R. v. Derriksan it was determined that the aboriginal fishing right was subject to both regulation and extinguishment prior to 1982. The inclusion of Section 35 (1) in the Constitution, "The existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hearby recognized and affirmed" ensures the protection of an aboriginal right in the fisheries and the court has had to take a very different stand in subsequent cases. The court has stated that " The new constitutional status of that right enshrined in s. 35(1) suggests that a very different approach must be taken in deciding whether regulation of the fisheries might be out of keeping with constitutional protection"(R. v. Sparrow 1990, S C R . 1075, p. 22). This perspective has given First Nations increased confidence to seek court judgement rather than comply with fines or arrests imposed by federal fisheries officers. This has been a critical factor in improving the negotiating climate between First Nations and governments generally. The following important cases represent the current legal context which government fisheries policy must comply with. Each of these cases represents a step forward in the struggle to reaffirm and implement aboriginal claim to resources which were alienated by the process of colonization. 4.4.1 Sparrow The Sparrow decision of 1990 is the seminal aboriginal rights case pertaining to the Canadian fishery. This ruling, like the Boldt decision in Washington, has had wide sweeping effect within the regulatory environment and has finally legitimized the aboriginal right to fish which has been articulated by First Nations for over 100 years. The Sparrow decision established legal precedence in the following key areas, thereby setting new standards for regulatory policy within the fishery. In K. v. Sparrow, the defendant, a member of the Musquem Nation was charged with using fishing gear not permitted by the terms of his Band's food fishing license. After two lower court trials where the 52 defendant was found guilty, the case was appealed to the Supreme Court of Canada which acquitted the defendant ruling that the net length restriction on the license was inconsistent with the intent of s. 35(1) of the Constitution. It was further determined that (R. v. Sparrow 1990, S.C.R. 1075): © The Crown had erred in arguing that the imposition of regulations under the Fisheries Act had extinguished aboriginal rights. Extinguishment could only be claimed if the intent of the Sovereign was clear and plain which is not demonstrated under the Fisheries Act. The aboriginal right was defined as fish for food purposes including social, ceremonial and food needs. The court argued that the aboriginal right was to be interpreted liberally. © The court established a three step test for the Crown to use in determining if a regulation may infringe on an aboriginal right © The court also ruled that aboriginal fishing rights were sui generis constituting a "unique encumbrance" on the resource and that they are collective in nature. The aboriginal right to a food fishery was given priority over the interests of all other users groups and was to come second only to conservation needs. It is noteworthy that this had been stated D F O policy since at least the early "80s but it was not until after Sparrow that D F O began to make operational changes.28 The broad liberal reform embodied within the Sparrow ruling unleashed a torrent of opposition from the commercial and industrial fishing sectors who perceived the implications to be a direct threat to their livelihood and control. These sectors had no appetite for tolerating healthy and sustainable aboriginal food fisheries under the new policy direction of the AFS; "You effectively destroy a viable commercial industry in the name of economic opportunity for Indians" (Newell 1993, p. 179). The fact that the aboriginal catch represented only a small (5-8%) fraction of the Total Annual Catch was irrelevant to the emotions at play. Within this climate of charged emotions, the Department of Fisheries and Oceans was forced to enact new policy and regulations to protect the aboriginal right to fish. During the last four years, further judicial rulings from the Supreme Court of Canada have refined and clarified certain aspects of aboriginal rights and title. In the Gladstone decision the Supreme Court ruled that the accused who had been charged with illegally selling herring roe-on-kelp, had an aboriginal right to trade herring spawn on a commercial basis ([1996] 2 S.CR. 723). The court judged that the trading of herring spawn 53 for money or goods was a defining feature of Heiltsuk society prior to contact. This case established an aboriginal right to commercial activity within the fishery where this form of trade was a central or defining feature of the society. The Supreme Court also ruled that a new trial was necessary to establish whether the Crown's infringment on the aboriginal right was justified. This case has ultimately paved the way for other First Nations groups to litigate for commercial rights within their fisheries. Another important court ruling arrived in 1995 with the Jack, John and John decision (Court of Appeal for British Columbia. Nos. CA014766, CA014771, CA014772). Vancouver Registry). Initially, the accused were charged with illegal fishing - area closures were in place. The trial judge acquitted the accused using the Sparrow guidelines. He ruled that D F O had been arbitrary in its closure of aboriginal fishing, that there had not been adequate consultation and that sportsfishers and commercial fishers were not under the same closure restrictions. Therefore, the First Nations were bearing the burden of conservation measures. The case was appealed and the accused found guilty stating that the closure was valid. Finally the case moved to the BC Court of Appeal and the judges agreed with the trial judge that D F O did not give priority to the aboriginal right to fish chinook in traditional waters. The clear implication of this ruling is that First Nations fishers have an aboriginal right to fish in a preferred location, for a preferred species and stock of fish with preferred gear. This ruling is of significance to inland fisheries which operate upriver from coastal interception fisheries which impact the stocks long before they arrive in the aboriginal fisheries. 4.4.2 Delgamuukw In the landmark Delgamuukw ruling, the Supreme Court of Canada established a new legal framework within which to assess aboriginal title. Aboriginal title was defined as the far end of a spectrum representing aboriginal rights. It was not to be subject to the sites specific definitional framework of the previous Van der Peet ruling ([1991] 3 C.N.L.R. 155). Aboriginal title was defined to include the "right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes which do not need to be practices or customs integral to distinctive aboriginal cultures" (Delgamuukw v. British Columbia 1997,3 S.C.R. 1010, p. 3). Aboriginal title was defined as a communal right and is sui generis -existing outside the meanings of European, British or Canadian law. Two other important features of the decision are that oral histories are an important evidentiary record with a legitimate place in the courts and that 54 aboriginal title is accorded constitutional protection. The provinces cannot extinguish aboriginal title and activities which infringe on aboriginal title (logging activities etc) may have to provide compensation to the holders of the title. The Crown was directed to perform meaningful consultation whenever conducting activities which could impact aboriginal rights. In its most practical sense Delgamuukw assigns resource management rights to First Nations and suggests a form of co-management will be required to work with the Crown. For the Gitxsan and Wet'suwet'en this was a victory and the affirmation of years spent in court. The decision stopped short of assigning ownership and jurisdiction to their traditional territories and they were instructed to either negotiate with the province or to further their specific claim in another case. 4.5 T h e A b o r i g i n a l F i s h e r i e s S t ra tegy The Aboriginal Fisheries Strategy (AFS) was announced by the D F O in 1992 as a strategy to enhance First Nations participation and economic opportunities associated with the fishing resource. It constituted the federal government's response to the Sparrow decision and the legal requirements which it established. This announcement was preceded by the negotiation of 150 contracts with First Nations groups to undertake fishery management projects (McDaniels, Healey and Paisley 1994, p. 2115). The Gitxsan and Wet'suwet'en Watershed Authority (GWWA) were one of the groups who negotiated under this early program. Two key aspects of this new strategy were the provisions for a license retirement program which would make a commercial increment to a food fishery possible, and the provision of Communal Licenses which would provide for less restrictive regulations on the food, social and ceremonial fisheries. As a result of loosened regulations for food, social and ceremonial fisheries in some cases openings are 7 days a week/24 hours a day. The provision for the sale of fish, negotiated with a few of the Fraser Nations, under pilot sales agreements became the first legalized sale of aboriginal fish since the regulations of 1917. This fact did not go unnoticed by the commercial sector which mounted a flurry of protest and continues to oppose expanded commercial allocations to inland fisheries. Program funding was secured for a seven year period (1992-99) with an initial allocation of $140 million - seventy percent of which was directed 55 to British Columbia. More than 80 agreements were signed in the first year and this number has continued to grow with over 80% of the province's First Nations participating by 1995 (Smith 1998, p. 63). Designers of the AFS, in interviews, indicate that a chief goal of the early program was to facilitate relationship building between alienated parties who were often in court. The first agreements were annual to allow a Nation to opt out if the relationship wasn't working. 2 9 The First Nations had good reason to be suspicious of the D F O and had concerns that these agreements might prejudice treaty rights. The government was also clear that Sparrow had given the Nations a legal right to disrupt the commercial fishery to achieve their fisheries. For government, relationship-building and management participation appeared as a better alternative than litigation in this environment. AFS agreements were scoped to cover a range of activities: © Enforcement - by Aboriginal Rangers/Guardians and D F O - more enforcement was to be done by the community (only within the aboriginal fisheries)- D F O would continue to lead enforcement in areas such as habitat infractions or sport and commercial fisheries © Participation in habitat management © Habitat restoration © Stock assessment and other research ® Delivery of economic benefits © Some commercial licensing Initially, the AFS was designed as a short-term measure for government to be compliant with the law, but to be replaced once treaties were completed in British Columbia and specific responsibilities had been assigned for resource management. To date, only the Nisga'a Treaty has been signed and the AFS has continued to operate in the absence of negotiated settlements. A current criticism of the AFS is that it is ossifying and is not expanding into key areas that it was intended to go - for example habitat enhancement.30 The following sections provide detail concerning AFS agreements in place in the Gitxsan and Wet'suwet'en fisheries. 56 4.5.1 AFS Agreements Between DFO and the Gitxsan and Wet'suwet'en Watershed Authority Prior to the AFS in 1992, First Nations in the Skeena watershed had come together to form a collective organization. The Skeena Fisheries Commission (SFC) representing the Tsimshian, Gitxsan, Wet'suwet'en, Gitanyow and Lake Babine Nation was formed to develop a co-ordinated strategy for shared fisheries issues. A n early initiative of the SFC was to begin to build a fisheries enforcement regime on the Skeena which was rooted in traditional law (Smith 1998). A l l the member Nations of the Skeena watershed continue to have active hereditary systems. This shared cultural context and the campaign of harassment which had plagued all the fisheries during the 1980s propelled the Nations to build alliances based on shared interests. When Sparrow was announced, the SFC was very quick to respond. They negotiated one of the first agreements under the fledgling AFS in 1992. This initial agreement helped to establish the main policy direction for Phase 2 of the AFS which was implemented in 1994. Meetings were held between members of the SFC and Ottawa D F O staff to identify the elements that the Nations felt were important to be included in proposed agreements. In particular, they articulated the need for recognition of the indigenous fisheries management system which was governed by Houses and Clans and the need for local or community-based enforcement. The Gitxsan and Wet'suwet'en Watershed Authority (GWWA) was formed in early 1991 by House Chiefs of the Gitxsan, Wet'suwet'en and Gitanyow Nations in order to co-ordinate fishing activities and to negotiate operating agreements under the AFS. The G W W A negotiates project specific agreements for its members while the SFC continues to negotiate broader framework agreements for fisheries management within the whole Skeena watershed. The G W W A and the SFC remain two of the most active First Nations organizations involved in fisheries management in BC as is witnessed by the number of signed agreements to date - more than 35 - and the dollars which are delivered. The 1992 agreements with the SFC represented l / 8 t h of the total AFS budget and this percentage has largely been maintained. The D F O indicates that the allocation of dollars is usually a reflection of the experience level a Nation has with regulation activities and the general management of its fishery.31 Given the pro-active stance of the Gitxsan and Wet'suwet'en, in fisheries management during the 1980s, it is small wonder that their AFS agreements reflect a more diverse set of projects 57 with larger funding than on average. As discussed, they had already developed a set of fisheries management principles and strategic direction when Sparrow and the AFS were announced. The current multi-year AFS Agreement (1999) signed by D F O and the G W W A and amended in 2000 is briefly profiled below. The management functions, structure and responsibilities are generally universal between the successive agreements while the projects vary greatly between the agreements. 1. Communal Food, Social and Ceremonial Fishery-The agreement specifies the following: © fishery open season (June to Nov), © hours (7 days a week/24 hours a day) © gear types to be used including (gill net, gaff, dip net, trap, beach seine) © quantity of fish to be harvested by species - these numbers are supposed to reflect historical averages © assignment of designated individuals who can fish o conditions to cover the transportation of fish © reporting requirements © funding © duration of the agreement (2003) 2. Surplus Fishery Conditions for the surplus fishery differ from the food fishery: © General quantities of surplus fish to be harvested if surplus is deemed to exist by D F O (1/3 of surplus sockeye and 1/2 of surplus pink) © 10% of fish sale net income is to be directed back into G W W A fisheries activities © Selective gear to be used including: traps, weirs, beach seines © Designation of individuals © Designated landing sites are to be set-up and a system of landing vouchers is to accompany harvested fish © Harvest monitoring procedures are to be carried out 58 In addition to the provision of licenses for the fisheries each agreement specifies a number of projects which receive funding. This agreement includes projects defined as: © Negotiation of fisheries management © Catch monitoring © Enforcement © Habitat assessment and monitoring © Surveys and assessments © Feasibility study for fish wheels 4.6 F i s h e r i e s M a n a g e m e n t i n the G i t x s a n a n d W e t ' s u w e t ' e n I n l a n d F i s h e r i e s - 2000 In order to assess how the AFS agreements are implemented on the ground, it is necessary to discuss the operational features of the fisheries. What follows is a description of how the food, social and ceremonial fishery is practiced in the Wet'suwet'en Nation and a description of the surplus fishery (ESSR) operating in the Gitxsan Nation. These descriptions are based upon observations and interviews related to the 2000 fishing season. 4.6.1 Profile of a Modern Food Fishery - A Communal Property Resource, The Wet'suwet'en32 Sunday, August 13/00 6:00 am It's a rainy morning in the Bulkey Valley but that hasn't slowed down the early morning activities in the Moricetown Canyon, locally known as Kyah Wiget, the site of an indigenous, ancient fishery. The Canyon is located on the Moricetown Reservation and continues to serve as the primary salmon harvesting site for the Wet'suwet'en Nation functioning as their food/social/ ceremonial fishery licensed to operate through a Communal Fishing License delivered as part of a signed Fishing Agreement. The Fishing Agreement is signed by D F O and chiefs of the Gitxsan, Wet'suwet'en and Gitanyow Nations and is delivered through 59 DFO's Aboriginal Fishing Strategy (AFS). Agreements were first signed in 1992 and have been re-negotiated on an on-going basis to the present. The Canyon is a rocky outcropping of dachite incised by the Bulkley River. A n invisible but important feature of the Canyon's topography is the presence of depressions or holes in the river bottom located below the falls at the up-river entrance to the Canyon. These depressions were formed through the repetitive scouring action of rocks and boulders tossed and turned along the substratum by the river current. The scouring holes provide refuges of quiet water in the extremely turbulent Canyon, where migrating chinook, steelhead and coho salmon congregate to rest before they must expend tremendous energy to swim up through the falls and on to their up-river spawning locations. These "resting sites" or fishing holes are the property of the five Wet'suwet'en clans (Laksamishu/Tsayu, Likhsilyu, Gitdumden, and Gilsheyu) and are managed by chiefs and clan members. There are over 20 primary fishing sites along the banks of the Canyon and access has always been restricted to clan members - Likhsilyu members fish the Likhsilyu sites etc (see Map 3 for locations). Access to and ownership of the resource clearly reflects the defining characteristics of a communal property rights regime as described in the previous chapter. Today, restrictions are less rigidly applied and clans share their sites with each other. Disciplinary action and censure occurs immediately at the time of the offense. Territorial peer pressure governs direct access to the sites. For example, a fisher who occupies a site for more than 25 minutes will be spoken to by clan members and reminded that they are to share the site. This is important as there is space only for one person to fish at a time. Because this fishery has always been managed by the hereditary system, agreements negotiated with D F O must be approved by the 13 hereditary chiefs. Their authority over access to the fishing sites and distribution of catch is maintained formally through the feasthall and recognized in the contractual agreements with the federal government. 8:00 am There are currently three fishers at work in the Canyon. Two are sharing the Laksamishu site on the east bank, while another fisher is dip netting in the Likhsilyu clan site on the west bank. These early fishers are all residents of Moricetown and members of the Wet'suwet'en Nation. As such they meet the "designated individuals" requirement of the Communal Fishing License. Non Wet'suwet'en are prohibited from fishing in these sites and are restricted to an outcropping ledge at the 60 Moricetown Canyon Fishing Sites 2 M I* an -•.0' Huen'stak'eet Medllc :Tachie MORICETOWN SITES Klatunselll -Hagwilneext Khonttat-Medllc metres 100 200 Sduup- Hagwilneext Tsaan ta kaat-wedexget Tsaan ta tt'eet Guhle't ceztezox-Hagwllneext uyek hoc'ezdetsayh Hagwlneext Dac'gget tulxes- Medllc Uyeggeen-Namox Duhgyestaklh • Woos TSUJJ k*eet-wedexkwets Tsa ko k'eet-wedexkw'ets oeeggllt k'eet- woos Testang'et-wedexget — Tesdlee k*eet - wedexget 1:7600 Niicya - Hagwilneext Nllcya-cwils Khonttat- Hagwilneext Dac'klz'duc'ay • Medllc Tsaan ta kaat-cuhle't Nil neets'ootex-Cisdaawe Tsu ay k'eet-Mediic wilaaz dllzees-Glsdaawe Tsee gges tfaat-wedexget Oeeggllt iceet-fish ladder CW11S ter level Ezldaa-cwils Hi Ceteltlek-Smogetgem •Hanson b icb ls LaRev ; S 'A Source: Office of the Wet'suwet en MAP 3 60a downstream end of the Canyon locally referred to as "Idiot Rock". As the Canyon is on reserve land the Moricetown Band Council has the authority to sell licenses to non Wet'suwet'en wishing to fish at this designated location. The authority of the Band, in fishing matters, is solely restricted to the issuing of these licenses while the hereditary system manages the indigenous fishery. By 8:20 am one sockeye and three pink salmon are hauled in by the dip net. The fish are cleaned immediately and are either placed in holding pools in the rocks or into the fishing totes supplied by Wet'suwet'en Fisheries. The Laksamishu fishers are using gaffing poles to hook fish resting in the river bottom pooling holes. The fishers are connected to the rocks by safety lines and are leaning waist deep into the turbulent water pushing their poles down into the fishing holes. This is strenuous work requiring great strength and skill. Unskilled fishers can mortally wound the fish with the gaff leading to some wastage in the system. Both D F O and sportsfishers have indicated their concern with this type of accidental mortality. In terms of population levels, accidental mortality within the Canyon is minor when compared to the impacts of other interception fisheries on the Skeena, but it does create public relations issues for the Wet'suwet'en. After an hour of fishing there are no fish landed by the gaffing poles and the fishers decide to switch to dip nets. Dip nets are most appropriate for the shallower swimming sockeye and pinks which should be at their peak about this time. Gaffing works most effectively on chinook which peaked two weeks earlier; only a few stragglers are still moving through the Canyon. This year was a good run with 4,600 landed in the fishery. O n average chinooks weigh 16 lbs and this has meant that 73,600 pounds have been processed to meet the food needs of the village. 9:00 am Two other villagers arrive and begin to share dip netting at the Likhsilyu site. They are both seasonal employees of Wet'suwet'en Fisheries and are hired to provide food fish for village elders and those unable to fish for their own personal needs. They work six hours a day for the season which lasts from mid-July to Sept. Their job is to catch, land and clean the fish which is placed in totes to be distributed to the elders. A few moments later, two fish monitors employed by Wet'suwet'en Fisheries arrive to begin the task of recording how many fish of which species are caught during the day. Their jobs are funded via the negotiated Fishing Agreement with D F O and are provided in order to 61 record the number of fish caught and lost in the gaffing process and to monitor the number of fish caught and selectively harvested in the dip net fishery. At the simplest level, these data provide a record of the magnitude of the food, social and ceremonial catch. In addition, the data are useful to provide an index of the abundance of the returning populations of migrating salmon on an annual basis. These numbers assist both D F O and the First Nations in determining the number of fish caught in the food fishery which can be compared to the actual escapement to the spawning tributaries upstream. This information enables the Wet'suwet'en to know the impact of their harvesting on escapements and to compare their catch to other interception fisheries on the Lower Skeena and in ocean waters. This becomes critical in assessing where new fishing regulations need to be modified to protect a specific species or stock. In the case of coho management, protection measures (closures) have been applied to the entire Skeena watershed system. With at least five interception fisheries harvesting mixed stocks, including Bulkley River stocks, prior to their arrival at the Moricetown Canyon, clear and undisputed scientific data becomes essential for designing regulations which will be complied with by the various harvesting groups. 11:00 am The fishers have now managed to harvest 10 sockeye and 20 pink salmon. A n official from Wet'suwet'en Fisheries is discussing the fishing with the fish monitors and indicates that the number of sockeyes caught to date are approximately 1,000 which is significantly down from the previous year. By this time in the run, there should have been at least 12,000 harvested and this suggests that there may be a problem with this particular sockeye stock. The Wet'suwet'en fishery traditionally harvests two main species, chinook and sockeye. The D F O took serious measures to increase depleted chinook stocks in the 80s by implementing closures on the commercial fishery at the mouth of the Skeena. The numbers have risen and chinook for the last 5 years have had healthy populations return to the spawning beds in the Morice River. Sockeye, which spawn in the Nanika are the other main targeted sockeye stock within this fishery and the escapement levels have been moderate to high for the last few years (see Graph 1). Most Nanika sockeye return to spawn at 5 or 6 years of age (Rutherford et al 1999); therefore spawners returning this year were themselves spawned in 1994 or 1995. There is no official D F O estimate of spawning escapement in 1994; in 1995 the estimate was 35,000 fish. The catch in the Canyon this year indicates a much smaller return than in the 1995 parental year. This issue will be brought to the table in the post season debriefings between D F O and the G W W A . The work to be done 62 Gaffing in Moricetown Canyon Fishery now is to accurately determine the escapement for Nanika sockeye by counting the numbers that have made it to the spawning beds. Both the D F O and the First Nations participate in escapement calculations occasionally arriving at different numbers. In the case of a serious dispute regarding numbers, the D F O numbers carry the primary weight. Normally, there are 2 or more counts performed in order to minimize the potential for dispute. 2:00 pm Two busloads of tourists arrive to observe and photograph the fishery in operation. Each day, for the summer season, up to six tour buses will stop to let tourists walk through the fishery and ask questions of the locals. They arrive from all over the world to observe a fishery which has been operating since time immemorial. The highway has been situated alongside the Canyon making it one of the most publicly accessible aboriginal fisheries in the province. One of the tourists notices a large metal fish wheel attached to the bank where the water is less turbulent. The Wet'suwet'en Fisheries official indicates that this is an experiment, funded through the AFS agreement, to selectively harvest fish. The Wet'suwet'en are interested in alternative harvesting methods that would allow them to minimze the dependence upon gaffing. To date, the fish wheel does not appear to be a workable alternative because it has not trapped many fish. Some believe that the wheel is not suitable for the conditions within the Canyon. The wheel will be taken out of the water in October. 7:00 pm By days end, there have been 40 chinook, 20 sockeye and 100 pinks harvested by 14 different fishers. The 20 sockeye and 40 chinooks have been loaded into the totes and have been delivered to elders throughout the village. The pinks are loaded up in totes and sold under a surplus license at the roadside. This year approximately $2,000 was received from such sales. Approximately half the village families will be supplied with their food fish by Wet'suwet'en Fisheries this year. When fish are plentiful only a small percentage of the families are supplied by Wet'suwet'en Fisheries but when conditions are poor as with sockeye this year the percentage increases. Last year high water levels allowed most salmon to pass through the Canyon before water levels were low enough to allow fishers access to the fishing sites and almost no fish were taken. Wet'suwet'en Fisheries hired Babine Nation members to catch sockeye on the Babine River at the counting fence to substitute for the normal Wet'suwet'en sockeye catch on the Morice River. These fish were 63 delivered to families to meet their food needs. This year the Wet'suwet'en did an exchange with the Gitxsan for sockeye from the lower Babine River, as few sockeye returned to the Bulkley system. These exchanges are similar to those which have occurred between these Nations for centuries. Curls of smoke ascend up out of the Canyon as two small groups of women feed the fires in the smokehouses where their fish are drying on racks. The smokehouses were recently built to replace ones which disappeared from the Canyon decades earlier. Fish drying traditionally occurred right next to the harvesting sites in order to minimize the effort expended in transporting fish, but in recent times motor vehicles have made it feasible for people to process their fish in smokehouses adjacent to their permanent homes in the village. The damp summer weather means that a continuous fire, within the smokehouse, must be maintained for seven days to fully dry the fish. By 9:30 pm the sun has sunk below the mountain and it is getting difficult to see. There are still scattered groups of people sitting up on the upper banks and over by the smokehouses. Here the head chiefs would meet at the beginning of the fishing season and collectively plan the fishing. Activities within the Canyon are witnessed by much of the village and are a focus of interest throughout the entire season. This is much more than a fishery, it is a meeting place, an extension of the past, an information exchange, a cultural school for village youth and tourists, and a place for quiet reflection in a busy world. Table 5 Number of Fish Caught in 200033 Sockeye 1,905 Coho 75 Steelhead 105 Pink 6333* Chinook 4535 * - includes a commercial component The counts being performed in this food fishery are probably some of the most reliable catch data for any fishery in the world. Fish are caught and 64 counted individually, in public, with monitors watching on a continuous basis. Employment - Wet'suwet'en Fisheries employs approximately 30 people throughout the summer including monitors, rangers, fishers, tagging crews and staff. It is locally based employment in a community where there are very limited options. 4.6.2 Profile of a Commercial In-River Fishery - (ESSR) The Gitxsan34 The Gitxsan fisheries are located on sections of the Babine and Skeena Rivers which pass through Gitxsan territory. The total length of river which falls within Gitxsan territory is approximately 200 km. Within this distance there are at least 200 specific fishing sites which are the traditional property of the 56 House Groups. These fisheries target enhanced runs of sockeye bound for Pinkut Creek and Fulton River in the Babine Lake system of the Upper Skeena. These are two of the most productive sockeye stocks in the province. The enhanced runs are intermingled with wild stocks of lesser productivity at the Skeena River mouth, where they are harvested by the coastal commercial fishery. Throughout the 1990s, D F O managers have imposed regulations on the coastal fishery in an attempt to limit the overharvest of less productive stocks. This is accomplished by setting a species-wide harvest level which is somewhat below the rate which the most productive stocks could tolerate. This level is a compromise between the goal of retaining all salmon stocks and the desire to support a large coastal commercial fishery. O n average this has meant that the coastal fishery has only taken about 60% of the total return of sockeye. If escapement needs are roughly 20% of the total return, this means that there is 20% left over which is labelled the Excess to Salmon Spawning Requirements (ESSR). The two large Babine Lake stocks may produce returns of as many as five million fish, and hence excess escapements of as many as one million sockeye. These fish may be harvested in order to minimize crowding and stress in the spawning beds. Since the 1980's, the Gitxsan have pushed for development of an in-river commercial fishery targeted to these surplus fish. As part of the AFS agreements signed initially in 1992, D F O has made provision for conservation-based commercial fishing by the Gitxsan under an ESSR license. 65 The following section provides a description of management and harvesting activities within the Gitxsan commercial fishery. While the focus of interest is upon the commercial fishery, it is important to note that the Gitxsan also conduct a food fishery which runs concurrently with the commercial harvest. The food fishery is licensed to operate under separate terms and conditions, detailed in the AFS agreement, and operates with different gear, primarily gillnets. This separation of Section 35 fishing rights from commercial activity is considered an important aspect of this model. Informants indicate that they are not extinguishing any aboriginal rights by this type of harvest. Under other commercial arrangements, like pilot sales agreements which allow for the commercial sale of a percentage of food fish, there may be the commercialization of the Section 35 fishery, which some consider might lead to extinguishment of the aboriginal right. Start-up - The first activities which take place in this fishery occur in November prior to the up-coming season. At this time, D F O conducts pre-season meetings with the Gitxsan to discuss the estimated returning populations. This information is approximate but useful enough to provide some indication regarding the potential for an inland commercial harvest. Based on these preliminary numbers, the manager of the G W A begins to source out buyers who can handle the potential volume, offer an adequate return and access a variety of markets. This is a challenging task as the alternatives are limited due to significant concentration of wholesale purchasing power within the industry. Other activities include an analysis of equipment needs and assessment of the harvesting techniques previously employed. Gear Development - This commercial fishery has been proactively working on applying selective harvesting options since its inception. In particular, it instituted the move to beach seines and live capture as the primary harvesting technology. This replaced gillnets, within the commercial harvest, and has meant that fishers have had to learn the complex processes associated with this gear. In addition, there are fish wheels and large dip nets used in the Gisgagaas Canyon fishery where the previous gear type was jigs and gillnets. The Gitxsan wanted this harvest to be conservation- based and therefore they practice selective harvesting and emphasize harvesting in up-river locations where there are less stocks. Policy Development - A unique aspect of this fishery is the development of consensus based internal policies to guide the fishery on an annual basis. At the beginning of the season, the Harvest Manager facilitates the process by meeting with the Houses and identifying areas which need to be 66 66a covered by policy. The policies provide guidelines for participation in the harvesting. With up to 56 House groups which can participate this is no small task and is a unique accomplishment. Once draft policies have been articulated the House groups have a few days to consider the options and then meet again to come to final agreement. This process usually lasts up to three weeks to complete. Initially there were approximately 11 policies guiding fisheries management but as government regulations change and the fishery expands and new technologies are applied the policies have expanded to approximately 30. Some of the policies cover the following areas: 1. No alcohol or drugs permitted in the harvest 2. Selective live capture methods only 3. Families are to be supplied with food fish first 4. Fish harvested from sites where access is under internal dispute will not be purchased unless dispute is resolved 5. Policies governing the transportation of fish 6. Policies governing the handling of fish Season Opening - The authority to declare an opening or closure in this commercial fishery belongs to D F O . Under the agreement they determine if there is enough surplus to conduct this fishery. D F O determines the run timing and in daily consultation with the G W A determines the most appropriate moment to open up harvesting once escapement targets have been met. A surplus license is given to the G W A for a one week period and the number to be harvested is identified. Fish Access and disputes -Access to fishing sites is governed by traditional law. The Houses all have traditional fishing sites which belong to the members of the House and access is by permission of the House authorities. The G W A has no role in determining fisheries access. If, during the commercial harvest, there is a dispute regarding the site where the fish were harvested current internal policy indicates that the fish will not be purchased by the G W A . They will play a facilitating role to resolve the dispute. The Gitxsan have developed a dispute resolution mechanism to deal with these situations which sometimes involves a third party observing or an elder providing history of the site. Another interesting component of fishing access, is that the commercial fishery, because it uses different gear than the food fishery requires different terrain. This means that some House groups do not have appropriate fishing sites for the beach seines. The G W A has assisted the House groups in developing new fishing sites which may become part of the House territory subject to 67 recognition of other Houses in the feasthall. This is a remarkable example of the accommodation that the traditional system can make to altered circumstances. Fishing- House groups are responsible for organizing crews for beach seining. A crew is composed of around eight House members. Once at the fishing site a boat across and then downstream and back to the shore releasing the seine net as it travels. When the signal is given the shore crew pulls on the purse line of the net pulling the net towards shore and closing it off like a bag. Once on shore, the net is opened and the live fish are lifted out by dip net. This process enables the catch to be selective as untargeted species are identified and put back into the river. While it is possible to distinguish between species, it is often impossible to visually separate salmon stocks of the same species. In season D N A analysis is being developed which is capable of stock indentification and has the potential to closely track individual stock migrations. This hold the promise of lessening mixed stock problems in the inland fisheries. Landing Sites - Under the terms of the AFS agreement, D F O has specified that the commercial catch is to be counted and weighed at designated marked landing sites. The Gitxsan have 3 specific sites - two on the Skeena and one at Gisgagaas on the Babine River. At these localities, the whole catch is moved through the sites for counting and packing. These sites must be compliant with the Fisheries Act (i.e. must have running water). When, the fish are landed on shore by the crew they are loaded into fish totes supplied by the buyer. The totes are moved to the landing station by the crew and the fish are weighed, counted and slushed with ice to keep them cool and the flesh firm. Once they have been processed, they are placed in the buyer's freezer truck and driven to the processing plant in Vancouver. G W A seasonal staff perform these processing activities and record the exact count and weight and enter it into the fish log books. Fish log books are provide to the G W A by D F O and issued to the fishers. The books contain multiple copies of the entered data so that each party involved in the process will have a record - fishers, G W A , D F O and the buyer. This paper trail eliminates debate over numbers or dollars and helps to minimize conflict. Fishing Camps - The most remote fishing camp where commercial harvesting occurs is in Gisgagaas Canyon on the Babine River. This is the most northerly fishing site for the Gitxsan Nation and operates only on 68 Babine returning stocks - the Bulkley, Kispiox and other upper Skeena stocks separate from the Babine fish downstream of Gisgagaas. It is at an old village site and is the location of continuous aboriginal fishing stretching far back into the distant past. The major gear type used here are large dip nets - approximately 4 ft across. Fishers stand on the ledges and lean down into the current with their nets. There are three fish wheels operating and the G W A believes they are beginning to prove their merit this year after much experimentation. Again, the fishery operates with live capture and release of untargeted species. During the fishing season, there average over 250 people in the camp on a continuous basis. Many are there in family groupings and the youth are trained in the fishing techniques. Cooks are employed to keep the crews fed and there is a great atmosphere of both fun and productive effort. There no longer is any concern that D F O enforcement officials will arrive to harass the fishing camp. Employment - A striking benefit to this commercial harvest is the number of people who receive some form of seasonal employment. O n average there are 600 fishers working along the 200 km stretch of river. With the inclusion of rangers, monitors, landing site staff, truckers etc there are approximately 1000 people productively involved in conducting the fishery. This is approximately 1/5 of the whole Gitxsan Nation and indicates the level of interest to derive employment from the land base. This is also much more than an economic endeavour; it also helps maintain the culture as fishing knowledge and traditional conservation values are imparted to the young. Community support and Compliance- Conservation methods are only effective if they are complied with. Both Gitxsan fisheries have great community involvement and compliance with monitoring requirements. The harvest numbers collected are considered very accurate as there is much informal scrutiny performed by the community. O n the other hand, it is difficult to know the validity of catch numbers supplied to D F O by other fisheries. The coastal commercial fishery in areas 3,4 and 5 reported no coho harvested for the season. The accuracy of these numbers depends largely on the veracity of individual commercial fishermen operating without independent scrutiny; as it is in the fishermen's interest to minimize the estimate of coho by-catch, there is reason to question the accuracy of their reports. 69 Community Economic Development - A s this is a commerc ia l harvest it is important to r ev i ew what the financial cont r ibu t ion to the local economy has been so far. Table 6 Surplus Harvest Year # of pieces Landed Value 1992 22,300 $132,000 1993 44,300 $265,000 1994 14,000 $84,000 1995 70,000 $420,000 1996 200,000 $1,200,000 1997 70,000 $420,000 1998 N o harvest 1999 N o harvest 2000 330,000 $2,000,000 These numbers illustrate h o w significant a conservation-based commercia l harvest can be to a local economy. A l m o s t a l l these dol lars are del ivered direct ly to the fishers and crew w h o participate i n the harvest. This infusion of dol lars happens w i t h i n a short-time but it keeps many households r u n n i n g through the win te r season. This is an example of resource revenue, w h i c h has no rma l ly been extracted elsewhere, be ing transferred to an area of l imi ted opportuni t ies . The cash benefits of this resource have t radi t ional ly been directed at the coastal commercia l industry . First Na t ions economies must be g i v e n their due share of the cash as w e l l as subsistence benefits. This chapter has suggested that the indigenous resource management system was and is an example of a C o m m o n Proper ty Resource operating w i t h i n a c o m m u n a l property rights regime. De f in ing characteristics of the indigenous management system were r e v i e w e d i n c l u d i n g the sacred role of the sa lmon, descr ipt ion of the terr i torial regula t ion of resources, indigenous governance - feasthall, and descr ip t ion of t radi t ional f ishing techniques. A n historical ove rv i ew of state regulatory control was presented i n order to portray h o w state management acted to marginal ize indigenous management. Recent conflicts be tween the two systems of authori ty were described i n order to il lustrate the nature of the jur isdic t ional dispute. The role of l i t iga t ion was explored and key court ru l ings w h i c h impact fisheries management were h ighl ighted . The government 's p o l i c y response to the n e w legal context was rev iewed - the 70 A b o r i g i n a l F i s h e r i e s S t r a t egy . A p p l i c a t i o n o f the A F S w i t h i n the G i t x s a n a n d W e t ' s u w e t ' e n f i sher ies i s i l l u s t r a t e d b y d e s c r i p t i v e p r o f i l e s o f b o t h f o o d f i sher ies a n d c o m m e r c i a l f i she r i es m a n a g e m e n t . T h e s e d e s c r i p t i o n s p r o v i d e the f o u n d a t i o n for the a n a l y s i s o f f i n d i n g s w h i c h are p r e s e n t e d i n the n e x t chap te r . 71 TROUBLED WATERS Co-Management in the Aboriginal Fishery: THE CASE OF THE GITXSAN AND WET'SUWET'EN Chapter Five: CASE STUDY ANALYSIS and FINDINGS 5.1 Co-management on the Skeena: Gitxsan and Wet'suwet'en Fisheries The following section discusses the implementation of co-management within the case study as delivered through the AFS. The first step is to review what the AFS policy was intended to do and what it was not intended to do. It was intended as an instrument to enhance First Nations participation in fisheries management and to build trust between the parties there have been some gains. Evaluation of the success of this co-management initiative may be undertaken using the co-management objectives list of McDaniels, Healey and Paisley (1994). The authors established their list of 6 primary objectives (Improving stock health, Improving community economic development, Improving trust and co-ooperation, Improving community involvement, Improving First Nations equity, Improving opportunities for learning) to guide the AFS program after conducting structured interviews with a small number of knowledgeable stakeholders. These objectives were never explicitly defined by the D F O when they launched the program. Rather, D F O hit the ground running needing to comply as quickly as possible with the Supreme Court of Canada's direction under Sparrow and program objectives remained weak and under-developed. McDaniels, Healey and Paisley (1994) argue that the initial negotiation of early agreements appeared to reflect a management agenda of DFO's which they imposed and then sought agreement from First Nations groups. This criticism was raised by informants of two non-Skeena Nations who continue to experience D F O negotiating sessions as a matter of take it or leave it with little room for a discussion of alternatives. 72 As part of the research for this thesis, the objectives identified by McDaniels, Healey and Paisley (1994) were discussed with case study participants including architects of the AFS. There was strong agreement that these were useful and important objectives and that they generally reflected the objectives for fisheries management articulated by chiefs in the late 80s and early 90s. A review of the key management functions defined by Pinkerton and Weinstein (1995), can illustrate the degree to which power is shared in co-management agreements. The following table reviews whether these key management functions are present in the current Gitxsan fishery and how they are exercised. Table 7 Management Functions in Practice -Gitxsan Food and Commercial Fisheries Management Management Function Specific Activities Evidence of Management Function within Gitxsan fisheries Policy Making and Evaluation Scoping problems, setting long-term objectives, research and education Policy making and program development are controlled by DFO. Internal policy development for Gitxsan fisheries is conducted within the hereditary system. Each year GWA works at developing policy with House Groups for in season management activities. Ensuring the Productive Capacity of the Resource Monitoring habitat, enhancing/restoring habitat, enhancing stocks Sampling of juvenile coho habitat is underway. GWA has completed stream inventories for parts of territory. Need more funding to do adequate habitat evaluations -impacts of logging etc. Compliance with Enforcing and Some enforcement 73 Rules implementing rules activities are conducted by rangers trained by Gitxsan. Aboriginal DFO Enforcement officers also apply the Fisheries Act. Peer pressure of the Houses and clans also creates compliance. Community support leads to monitoring compliance. Regulating Fishery Harvest Stock assessment, harvest planning, harvest monitoring Strong in the AFS agreement. Gitxsan currently collecting genetic sampling for stock identification. Juvenile coho sampling for the whole Upper Skeena. Established northern field station to do studies of northern coho. Monitoring of sports fishers at Kitwanga and Kispiox Rivers. Regulating Fishery Access Membership or exclusion, transfer of membership, allocation of harvest Fishing access, catch allocation and distribution is under the authority of the House chiefs. Reinforcement of the traditional system. GWA currently facilitating development of new commercial fishing sites under authority of House chiefs. This is not stated in agreement but it is the practice. Resource Use Co-ordination Co-ordinating uses and management of - sport, commercial and subsistence activities and enhancement DFO makes all decisions related to co-ordinating allocation between the fisheries - cross-sector allocation. DFO also makes the decisions to regulate habitat enhancement. 74 Returning Optimum Value to Fishers Quality enhancement, maximizing benefits through supply management and product diversity GWA attempts to get best price for commercial catch. Currentiy negotiating for a diversity of markets and value added production. When surplus catch is high significant economic benefits are returned directly to the fishers. These results indicate a patch-work approach to shared decision-making is currently being applied. One participant described the current context as one of "creeping co-management". Using Berkes Model of Co-Management introduced in Chapter Three, four of the Management Functions appear to fall within the Partnership/Community Control level which is a partnership of equals. Three Management Functions appear to fall within the Advisory level. The Management Functions which illustrate the strongest form of partnership or community control are: © Regulating Fishery Access © Regulating Fishery Harvest ® Compliance with the Rules © Returning Optimum Value to Fishers Management Functions which reflect a lower level of involvement characteristic of Advisory Boards are: © Resource Use Co-ordination © Policy Making © Ensuring Productive Capacity of the Resource This pattern indicates that power-sharing under the AFS is focused within areas where local authority is strong. Real power-sharing in contentious areas such as policy direction and cross-sector allocation is minimal. This is in keeping with comments from an architect of the AFS who indicated that it was intended to provide some management involvement for First Nations but was never conceived as a mechanism to share authority over allocation. 75 In essence, the AFS agreements established a framework to delineate responsibilities between the parties. Regulating Fisheries Access and Compliance/Enforcement were core areas in which First Nations sought a much enhanced role. This perspective was clearly articulated by participants in the Gitxsan fisheries. It was critical to the functioning of the fisheries that authority over access was under community control by House groups. In this cultural setting, traditional law and governance structures is a viable system for regulating access. The D F O , in the Skeena area, is aware that they have virtually no role in determining access. Closely connected to Regulating Access are the functions of Enforcement and Compliance. Again this was stated clearly by informants that outside imposed enforcement had been much of the problem in the '80s and community based enforcement mechanisms were critical to gaining community support and compliance. The D F O has funded, through AFS agreements, a number of Guardian and Ranger positions within various fisheries and observations from the case study reveal a high degree of compliance from the communities. Another important objective or management function sought by First Nations under the AFS has been the restoration and protection of habitat. This generally would involve the power to monitor and regulate logging practices, land development, construction, road-building etc. The First Nations have long expressed concern about this, and the D F O has been reluctant to delegate power to groups they think may be less sensitive to federal-provincial relations and to competing economic interests. Representatives of four Nations interviewed for the thesis, all indicated that this component (ensuring the productive capacity of the resource) is either very weak or absent from their agreements.35 These Nations all perceive a need to be much more actively involved in habitat improvements in their territories and to see the long-term viability of the stocks at risk if more assessments are not completed. Preliminary co-management appears to be in evidence within the Gitxsan fisheries but according to some participants this is not the norm for fisheries management arrangements in many aboriginal fisheries. The Gitxsan have managed to achieve stability, stature and community confidence within their fisheries in spite of the limitations in the AFS. This considerable achievement is the result of a number of a factors which are identified below. 76 Table 8 Strengths of the Gitxsan Inland Fisheries (subsistence and commercial) 1. Policy - Internal First Nations' fisheries policy development reflects community cultural/political norms. Policy is developed within the traditional governance model -hereditary system. Key aspects of the indigenous resource management system are maintained within these fisheries. AFS agreements also recognize the legitimate authority of chiefs/houses and clans. 2. Accountable - Both the Gitxsan Watershed Authority and Wet'suwet'en Fisheries are accountable to their communities - Houses and Clans -and to government. They report to their communities and the DFO through post-season debriefing meetings. Stock assessment and analysis, gear development, profits and losses, and recommended policies are some of the items covered by this reporting. Both Nations also report to each other in order to monitor stocks and other shared watershed interests. 3. Role of Hereditary System - both the commercial and subsistence fisheries operate within the edicts of traditional law. This is critical for cornmunity support, compliance and orderly management in general. 4. Strategic planning - the Gitxsan have clearly established management objectives which assist them in making measurable progress toward goals. The recent development of a northern field station to assist with stock assessment is one example. 5. Capacity - Fisheries representatives in both Nations are part of the hereditary system and know how to operate within it. They help provide an interpretative role between the Houses/Clans and the DFO. In addition, the Gitxsan and Wet'suwet'en initiated a Fisheries Technician training program in the early-80s. Some of the graduates of this program form the leadership within the GWA and they possess significant expertise regarding both fisheries management and the hereditary system which the organization is accountable to. Some staff hold names within the feasthall which earns them both respect and decision-making power. The ability to operate effectively within the indigenous governance system is a key component to the successful management of these fisheries. 6. Co-operative attitudes - Both the DFO and the Gitxsan and Wet'suwet'en Nations have arrived at a working relationship where some give and take is experienced. There is a recognition that there are some shared interests which provide common ground. Current relationships stand in marked contrast to the confrontational relationships of the 1980s. The Nations have clear legal rights under 77 Sparrow and other rulings making their position much more defined than the 1980s. 7. Scientific focus - the Gitxsan have decided that their fisheries management interests can be served best by placing policy discussions to the side and focussing on the science which informs the decision-making. The new Skeena Conservation Alliance (SCA) sponsored by the Skeena Fisheries Commission maintains this focus. Policy interests are pursued through other venues. 8. Internal enforcement mechanisms - Since the mid-80's the Gitxsan have articulated the need to practice their own enforcement which is integrated with the hereditary system. They currently employ Rangers who work in conjunction with DFO officers, some of whom are First Nations members. House groups are also part of the informal enforcement system. 9. Watershed-Based - The Gitxsan have adopted a watershed approach to their own traditional territory and have been active participants in watershed based initiatives including the Skeena Fisheries Commission, Skeena Watershed Committee and the Skeena Conservation Alliance. Working relationships with the Wet'suwet'en are also based within a context of shared watersheds. . 10. Proactive - For two decades there has been a proactive stance in relation to the fishing resource. This has included a number of progressive initiatives such as the development of selective harvesting gear, opposition to mixed-stock fishing, and the funding of surveys of stock strength.36 As members of the SFC they have lobbied effectively in Ottawa, were one of the first to sign an AFS agreement and have lobbied successfully when program funding to the AFS was threatened. 11. There is a recognition that an effective working relationship with the DFO can only be achieved through good working relationships in Ottawa and with field staff. A federal agency is challenging in this respect and lobby power in Ottawa has been one effective method for achieving goals. 12. Empowerment processes - Political leadership has been active in asserting rights and title to the resource base mcluding litigation. This has strengthened the position of the Nation which helps to balance the table in other negotiations. 13. Direct benefits - there are direct benefits to the community in terms of either food benefits or dollars delivered for harvesting. The commercial harvest helps to support many families on very limited incomes. Some of the dollars are also redistributed back through the feasthall where they circulate further within the community. 14. Community resiliency - the Gitxsan Nation has been very resilient in the face of imposed changes. For example, the Babine Barricades Agreement at the turn of the century outlawed traditional harvesting gear (weirs). The community had to adapt to fishing with nets and find, develop and regulate, new fishing areas. Now they are adapting to fishing with beach seines in the commercial harvest and developing 78 new fishing sites under the authority of the House system. The new technology (seines) requires different sites than those utilized in the subsistence harvest. 15. Community support - There is tremendous community support for the fisheries. Many, many households are involved and there is a camaraderie which exists in the fish camps. Compliance would be difficult to achieve without this support. 16. Conservation-based commercial harvest - the ESSR fishery was designed to be selective and live capture only. This is important for it shows a commitment to conservation especially when new technologies and training had to be put in place. Harvests target enhanced stocks when escapement allows. 17. Dedicated individuals - there are a number of dedicated and competent people who are committed to the success of the fisheries. Their efforts are key to its management success. They also serve as role models for the youth who are beginning to participate in harvesting activities. 18. Stable funding - the delivery of multi-year funding under the AFS has allowed for continuity and planning throughout the year. 19. Development of alternative harvesting gear - the Gitxsan have been very active in experiments with selective gear types. Fish wheels are now able to harvest at moderate rates. New techniques for improving beach seining are also being developed. Collectively these strengths have combined to make the Gitxsan fisheries an example of successful fisheries management and incremental co-management as defined within the limits of the A F S . 3 7 The Northern claims settlements (Inuvialuit, Gwich'n, Nunavut, Teslin Tlingit Council etc) offer still greater decision-making authority in co-management agreements. This is because co-management agreements are legislated and co-management boards have legislated responsibilities. In these cases, the Fisheries Minister shares joint authority over fisheries management with co-management boards. 3 8 A core reason for the success of fisheries management, within Gitxsan and Wet'suwet'en area described in case study, was identified by participants to be: a good working relationship between the parties. This stands in marked contrast to the nature of the relationship in the 1980s. 5.1.1 Working Relationships - DFO and the Gitxsan and Wet'suwet'en Why are relations between the D F O and the Gitxsan and Wet'suwet'en working more effectively now than previously? What explanation can be provided by the research? 79 The following factors are key to understanding the current working context between the parties. Informants identified the following developments as providing the new context within which the current relationship is articulated. There are two key areas in which shared mutual interests are the foundation upon which the current relationship is built: 1. A focus upon scientific analysis 2. A focus at the watershed level Scientific focus - The parties expressed a strong willingness to co-operate on scientific matters related to stock preservation. Both the SFC and the G W A indicated that they have adopted a strategy to separate policy and allocation issues from the process of scientific analysis. In particular, the Gitxsan have taken a pro-active stance in relation to scientific analysis. They have hired expertise to assist with stock assessments and long range planning since 1979. Because fisheries management is tied heavily to technical analysis it is critical that both parties are equally conversant in scientific methodology. This minimizes the potential for distrust which can easily arise in resource management issues. The G W W A is able to meet D F O on its own terms related to technical information. Watershed focus - There is a shared understanding that migrating stocks require a collective management approach which is achieved at the watershed level. The G W W A were strong participants in the Skeena Watershed Committee and continue to be strong players in the watershed-based Skeena Fisheries Commission (SFC). This watershed interest coincides with DFO's responsibility to manage fisheries for the whole Skeena system. The DFO, the SFC and the province are all active participants in the newly formed Skeena Conservation Alliance (SCA) which discusses matters related to long-term stock viability. The SFC which initiated the S C A made a clear choice to not include all the harvesting sectors (i. e. commercial harvesters - gillnetters etc.). Past experience with the Watershed Committee indicated that it would devolve into an allocation board functioning as a political body rather than a scientific one. In addition, the Skeena Conservation Alliance provides an opportunity for First Nations to meet with both levels of government enabling better co-ordination and communication. Other key factors influencing the relationship include respect, competency and jurisdictional clarity. 80 Respect - Parties expressed that a growing respect and trust has developed over the last 10 years. The D F O has adopted a less confrontational approach and First Nations have won legal recognition for fishing rights and an active role in fisheries management. This negotiating strength is critical to balancing the table between the two parties and helps to establish a basis for respect. At this point in time, First Nations representatives indicated that they are viewing the D F O as a service delivery agency working for them. D F O field staff have been exposed to cross-cultural training and are aware that co-operation with First Nations will deliver better stock protection in the long run. Competency - The G W W A is viewed by D F O as possessing competency to conduct the fisheries management projects within the AFS agreements. This includes tagging programs, delivering effective monitoring and enforcement, assessing stocks and improving upon selective harvesting gear and techniques. The successful implementation of these activities has helped to improve the working relationship. Jurisdictional clarity - The D F O no longer plays a role in regulating resource access within these inland fisheries. The food fisheries are open 7 days a week, 24 hours per day for the season. These openings were established post-Sparrow in order to guarantee the aboriginal right to fish. In years prior to Sparrow, the fishery was open 7/24 but the D F O repeatedly attempted to impose closures. These were controversial and not widely observed leading to friction between the parties. Access is now regulated by the hereditary system which reinforces the legitimacy of traditional governance, and indigenous resource management systems. This has eliminated on-going disputes between the Nations' governance systems and the federal state. 5.1.2 Role of the AFS - Creeping Co-management It is important to discern if the AFS has played a role in the current positive working relationship between the parties? It is clear that while the Skeena Nations have achieved official recognition for the successful management of their fisheries, under the AFS, this is not true for all Nations. The Skeena Fisheries Commission has lobbied very actively at the national level and has been successful in obtaining stronger agreements than are found in other locations. One researcher, who analyzed AFS agreements negotiated with five different Nations concluded that: 81 The Aboriginal Fisheries Strategy is a practical working agreement underscoring that agreements that cannot be implemented, do not work. It is still evolving and needs improvements, for some First Nations' agreements more than others, but it provides a solid base to build on. (Smith 1998, p. 174) There are four key areas that the Nations (four) interviewed in this thesis agreed were useful contributions of the AFS: © Multi-year funding - The most significant contribution of the AFS appears to be the relatively stable infusion of multi-year funding. This has enabled the Nations to operate with a longer term vision and to witness the results of their actions. Selective gear testing or habitat enhancement can be conducted over time and improvements monitored within a realistic timeframe. Many other government program are delivered annually. © Staffing - the AFS has delivered significant dollars to the G W W A to hire staff to manage, monitor and perform enforcement activities. These dollars continue to be critical to the successful management of the inland fisheries. The Wet'suwet'en derive very little revenue from their commercial harvest ( average $10,000) to direct towards expanding fisheries management and the Gitxsan have only conducted a commercial harvest in four of the last six years. Their commercial fishery operates only if sockeye escapement past the coastal fishery is deemed to be surplus to spawning requirements. Thus the inland commercial fisheries are viewed by the Gitxsan and Wet'suwet'en fisheries organizations as the source of supplementary funding, not core funding. © Capacity development - The AFS agreements have enabled the gradual development of capacities within the Nations to practice fisheries management within the parameters established by the DFO. Informants indicate that the AFS has been a useful tool for incremental capacity building. On the other hand, critics of the AFS indicate that capacity to perform traditional resource management is already in place and that First Nations groups have harvested sustainably for centuries. © Traditional law - The AFS agreements negotiated with the G W W A reinforce the legitimacy of the traditional system as chiefs are 82 signatories to the agreements. The parties as specified within the agreement are Her Majesty the Queen - as represented by the Minister of D F O and Gitxsan Houses, Wet'suwet'en Houses and Gitanyow Houses. This is a significant move by DFO, who like most resource agencies within the '80s, did not recognize the existence of traditional laws and governance. Agreements negotiated under the AFS can assist in the development of working relationships, the exercise of joint problem-sharing, delivery of revenue to communities, and the development of capacities for all parties involved in cross-cultural endeavours. While the AFS has provided the benefits listed above, as a program for co-management there are reasons to be critical. Interviewees associated with four different Nations identified the following difficulties: 3 9 © DFO's negotiating style is take it or leave it - not an exploration of alternatives. © Joint decision-making powers are limited. © Nations are carrying out the technical demands of the D F O . There is little consideration of traditional knowledge. © It is not a partnership which would be true co-management. The D F O controls the budget and decides what projects are approved. Threats to withdraw funding from "unco-operative" groups occurs. © The D F O is still too concerned with the interests of the commercial sector. Inland fisheries depend upon effective coastal management. © Consultations are not happening on important issues such as changes in commercial fishing plans. © The AFS has served as a vehicle for co-optation of aboriginal fishery institutions into the D F O technocratic system. © The AFS has not moved beyond Sparrow to address the realities of the Delgamuukw decision. There is growing concern regarding the limited scope of a food/social and ceremonial fishery. First Nations believe this is very restrictive and does not reflect historical use age of the resource. Aboriginal economies were very tied to fish trading and bartering activities and the current limited access to commercial harvesting is a possible infringement of an aboriginal right. The results of the research suggest that First Nations are not prepared to call fisheries management, as delivered by the AFS, co-management. Their perspective is that true co-management is a partnership of equals and that a sharing of power to achieve this full partnership has not happened. The agency controls the budget which means they have the 83 authority to approve or decline projects which makes the negotiation table unbalanced. When disagreements arise (i.e. escapement numbers) it is the DFO's information that is used. These criticisms suggest that it is time for the AFS to expand the scope of the power-sharing which is occurring. This will require a through analysis of the current difficulties and the options for enhanced co-management which would reflect a more "balanced" negotiating table. The G W W A has been able to shape the AFS to fit their objectives while others have not been as successful. It is hoped that an understanding of the strengths witnessed in the Gitxsan and Wet'suwet'en fisheries may assist others in the quest for a more meaningful role in fisheries management. 5.2 Two Policy Issues - Conservation and Inland Commercial Fisheries 5.2.1 Defining Conservation - The Case of Nanika Sockeye - What are the Options? It is interesting to turn the focus towards the development of a specific conservation issue unfolding within the case study. This is the type of problem that fisheries managers are having to address regularly and good working relationships will help in the defining of a strategy that is acceptable to the parties. The Sparrow decision upheld that aboriginal groups were to be the first recipients in line for food/social and ceremonial uses once conservation needs had been met. The subsequent ruling under Jack, John and John established an aboriginal right to fish in a preferred location for a preferred type of fish with preferred gear. Together these rulings make it imperative for the D F O to apply management efforts which will ensure adequate fish of preferred species and in preferred locations for food/social and ceremonial needs. One of the challenges lies in not making aboriginal fisheries take the brunt of conservation efforts as specified under Sparrow. Therefore fisheries managers must apply adequate controls on the commercial river mouth fishery to ensure sufficient supply for the inland fisheries which are the last in the harvesting chain. 84 The case of Nanika sockeye illustrates the inherent difficulties. The Wet'suwet'en fishery relies upon two major salmon species - sockeye and chinook. The major sockeye run which returns to the Bulkley River system is the Nanika stock which rears in Morice Lake - a low nutrient environment. Half of the population appears to return in the five year age class with the other half returning at age six. This is an early returning stock which is intermingled with other sockeye runs at the coast. Graph 1 depicts the escapement for this stock since the D F O began to record the numbers in 1950. Escapement figures for the 2000 returning population should have been near 20,000 if ocean mortality rates were average.40 With escapement figures of 6,000 this year there is reason to be concerned about the long-term sustainability of the stock. The reason for low abundance this year is not clear but the following suggestions have been offered: © Earlier June openings offered to the ocean commercial fishery this summer in June and July to offset late season closures for coho protection. Nanika sockeye are among the earlier of the Skeena migrants and would be disproportionately impacted by these fisheries. © High ocean mortality caused by warmer ocean temperatures © A n unpredicted delay in the return which may have resulted in unplanned harvesting impacts in the coastal Skeena fisheries. Currently, the D F O and the Gitxsan and Wet'suwet'en are meeting in post season debriefings and will be assessing the situation. The Gitxsan fisheries scientists will be accumulating all available data to compare results with the D F O . The parties appear to be working in co-operation to identify the cause of the low escapement. Once this is completed, management options will be proposed to address the situation. The following range of management options to address Nanika sockeye recovery have been developed as part of the thesis. 85 !N3W3dV0S3 Table 9 Management Options for Nanika Sockeye Recovery Option Pros Cons © Take no action and © More analysis will © Delay could lead study the issue in more lead to more to more extreme depth effective strategy impacts upon the stock © Close the ocean © This would largely © Economic impact commercial fishery eliminate the to the when Nanika sockeye potential by-catch of commercial run is most present - Nanika sockeye sector and early run. leading to stock coastal recovery communities. This compounds the impacts resulting from coho protection « Close the ocean © This would © This would not commercial fishery for eliminate be a tolerable a full Nanika sockeye interception of option for the life cycle (5-6 years) Nanika sockeye and commercial fleet. could build back the They would stock to escapement resist this option targets of the early vigorously 1950s. © Enhance the Nanika © Might result in more © Chiefs have stock by way of new smolts and consistently spawning channels or increased future resisted attempts fertilizing Morice Lake returns. to alter natural spawning. Successful enhancement would compound the problems as more fish mean more coastal harvesting pressure. 86 © De-enhance the Fulton and Pinkut stocks by eliminating the spawning channels and taking them back down to pre-enhancement levels In essence this would eliminate the management problems caused by intermixing of large enhanced stocks with small wild stock populations. © This option would be heavily resisted by many harvesting sectors which tie their economic base to the enhanced runs. In interviews, the D F O officials indicated that a likely management response would be to implement Option 2. By law, conservation measures must not be unduly born by First Nations. In Sparrow, the judges determined that: If...there were still fish after the Indian food requirements were met, then the brunt of conservation measures would be borne by the practices of sport fishing and commercial fishing (R. v. Sparrow 1990,1 S.C.R. 1075, p. 25) The case of Nanika sockeye illustrates the interdependency of all salmon populations within shared watersheds and the need for effective working relationships to address issues of sustainability. Ultimately management choices impact allocations which remain the root of much dissension between D F O and the commercial ocean fishery. The anger expressed this season towards D F O , for late July closures, to protect depleted coho stocks while enhanced sockeye runs were at their peak is a clear illustration of the difficulties of mixed-stock management and the interplay between conservation measures and allocation. In the end, the Wet'suwet'en are guaranteed rights to their food fishing by law and D F O is compelled to uphold them. O n the Skeena, there is perhaps a greater ability to arrive at a collective strategy to address declining wild stocks than is present on other watersheds, such as the Fraser, where the geographic area is larger and there are many more First Nations harvesting groups. If this is so, it will be based upon the significant achievement made here by First Nations groups to develop a functional working relationship with DFO. 5.2.2 The Development of Commercial Inland Fisheries Aboriginal food/social and ceremonial fish needs are being addressed by the current AFS agreements. In a limited number of cases there has been the inclusion of limited commercial rights. In order to develop a cash 87 economic base within many First Nations communities, revenues from the surrounding resource base provide the most likely opportunity. That is why Nations across the country have articulated their interest in a commercial harvest. In Quebec and the Maritimes the Marshall decision has provided some measure for the definition of commercial treaty rights. In BC the application of the Van Der Feet and Gladstone rulings provide some guidance in establishing a commercial or trading right within the fisheries. The AFS has made very modest in road to the outstanding issue of commercial fishing rights for First Nations. Currently, there are a few pilot sales agreements with Fraser River Nations allowing them to sell a set number of fish under the terms of their Communal Fishing License. In a few other cases, AFS agreements contain provision for a separate commercial license called the ESSR license. These licenses allow for terminal based commercial fisheries located in upriver areas. The Gitxsan have pushed for a legalized commercial harvest since the early '80s. The AFS agreement signed in 1992 gave them their first legal commercial harvest. It is clear from the experience of the Gitxsan in implementing their commercial harvest that there are a number of barriers to the expansion of inland commercial fisheries. These have been identified below. Barriers to Commercial Inland Fishing Commercial fishing within the aboriginal inland fisheries of the Skeena is generally dependent upon enhanced salmon runs. The Pinkut and Fulton enhanced sockeye runs on the Skeena/Babine system are also a mainstay of the coastal commercial fishery. As the Gitxsan began the development of their terminal-based commercial fishery, there were a number of obstacles to address. These barriers would be present for other groups attempting to establish similar fisheries. The successful conclusion of the 2000 inland commercial fishery suggests that it is possible to overcome these barriers with determined and consistent effort. The following diagram illustrates the barriers at work to mitigate against inland commercial fisheries. 88 Figure 7 Impact Diagram Barriers to Commercial Development in Inland Fishery Market development Market Preference Limited # of Buyers Political Resistance Fish Grading Industry Lobby opposition DFO health certificates Risk Adverse Agency 7 Capital Infrastructure Secure, profitable, and sustainable inland commercial fishery The Gitxsan have succeeded in overcoming most of these barriers although they still must apply considerable effort to overcome the presence of a highly integrated and monopolistic fish buying structure. The first two barriers they had to address were political resistance and a heavy industry lobby which resisted any attempts to reallocate a portion of the catch upriver. Industry argued the fish were almost worthless in the inland fisheries being less palatable to the consumer due to flesh deterioration in fresh water. The Sparrow decision helped to lessen political resistance and also indicated to commercial harvesters that the courts were making favourable rulings regarding First Nations rights within the fishery. The Gitxsan argued persuasively that rather than the fish being harvested at the coast they could harvest them in a more selective fishery based upon conservation needs and find a market that 89 was prepared to buy the lower grade fish. The reduced value of river-caught sockeye is offset by the low cost of river fishing relative to the ocean fisheries. Provincial Ministry of Health inspectors proved to be a barrier in this regard because they issue health certificates for trucking salmon and they were not particularly co-operative. Pressure had to be applied to gain more co-operation. The Gitxsan continue to search out new buyers with access to a variety of markets and ones who are interested in fostering some value added production in order to keep more of the revenues circulating in the local community. 5.3 Empowerment Processes The history of political developments within the Gitxsan and Wet'suwet'en Nations reflects a continuous process of political empowerment (Rung Five ) as defined in Rochas' (1997) Ladder of Empowerment. She defines political empowerment as community-based political action directed toward institutional change. The political strategies for change articulated within the Gitxsan and Wet'suwet'en Nations during the last two decades have been community based. They developed from within the traditional governance structures and as such have received community support. The following list of actions all fall within the realm of political empowerment processes: 5.3.1 Political Empowerment Actions © 1984 - Hereditary chiefs of both Nations file writ and statement of claim in BC Supreme Court for recognition of title to their territories. © 1985 - Gitxsan release a scientific report (Morrell 1985) which provides recommendations for better fisheries management and greater harvesting in traditional territory where mixed stocks are less problematic. © 1986 - Community adoption of Band Council Resolutions aimed at enhancing role of Nations within the fisheries including commercial access. Direct community resistance to harassment by D F O enforcement. Families protect fishing camps. Actions culminate in the Marshmallow War. 4 1 © 1987 - Delgamuukw court case begins. 90 © 1991 - Gitxsan Wet'suwet'en Watershed Authority is formed to create a united front in negotiating terms under the new AFS program. © 1992 - Gitxsan receive agreement to conduct a potentially economically significant inland commercial harvest. This legalized harvest continues throughout the decade. © 1995 - Wet'suwet'en chiefs enter BC treaty process to negotiate terms for a modern treaty. © 1997 - Final decision in Delgamuukw ruling by Supreme Court of Canada - Judges rule that aboriginal title is a sui generis right, it is inalienable, held communally and encompasses the right to exclusive use and occupation of the land with use capable of being expressed via non traditional methods. © 2000 - Chiefs within the Gitxsan Nation decide to return to court to seek a decision regarding their title to a specific territory. The ultimate goal of all the activities listed above is the legal recognition of a community-based right to exercise decision making authority over communally held territory and resources. It is a path to reinstate the past authority of governance structures which regulated resource use and allocation and apply them to modern circumstances. The current success of fisheries management witnessed within the case study is partially linked to this strong record of political force. It has invariably increased leverage power in contract negotiations and long term fisheries planning. Turning legal rights into management practice. Political empowerment processes within the Gitxsan and Wet'suwet'en worlds reveal that two of the three key ingredients for sustaining economic development within Nations, as identified by the Harvard Project (Kalt 1993), have already been met. These are: © The assertion of authority or sovereignty leading to more active control over affairs. © Formal governance institutions match the underlying cultural norms of the society. In addition, the functioning of the G W A , in terms of its articulated stance to separate politics from business, is a step toward achieving capable institutions of self government. 91 The case study illustrates that there are important connections between empowerment processes, community economic development and co-management. The following diagram attempts to show the linkages. Figure 8 The Connection Between Co-Management, Empowerment and CED The case study has focused on First Nations fisheries management within a co-operative management environment and described the Gitxsan and Wet'suwet'en path to political empowerment. It has also provided detail regarding the economic outcome of a commercial fish harvest. The above diagram explores the linkages between these forces of change. The three processes, co-management, empowerment and community economic development are linked together in a dynamic relationship where developments within one axis may impact the other two. Co-management agreements within the inland fisheries can be enhanced (inclusion of commercial license opportunities) through political empowerment processes. In turn, enhanced co-management opportunities directly impact the level of community economic development. This connection is most clearly developed within the Gitxsan 92 fisheries where pressure for access to a conservation based commercial harvest has resulted in the delivery of significant dollars to the local economy. This harvest directly helps to alleviate the cycle of dependency which characterizes many First Nations communities. Its significance cannot be overstated. Effective and empowered co-management agreements make resource revenue a reality and the development of a sustainable economic base (monetary not subsistence) for isolated First Nations a real possibility. Self-government initiatives can only be strengthened by the implementation of co-management initiatives, empowerment processes and community economic development. Unfortunately, the provincial government, which currently has authority over much of the resource base (land, minerals, fresh water, timber), does not seem prepared to implement resource co-management falling within its jurisdiction. As the case study illustrates, public policy in this area will likely be propelled by litigation as has occurred within the fisheries. This chapter has analyzed the current AFS agreements between the Gitxsan and D F O in order to portray where power-sharing is occurring. It has been argued that a form of partnership is occurring in four fisheries management functions while another three are largely advisory in nature. Incremental co-management was suggested to best describe the current context within which shared management is occurring. Nineteen strengths of Gitxsan fisheries management are identified. These strengths suggest some accommodation has been made between the state and indigenous resource management systems. Effective working relationships and increased jurisdictional clarity were identified as contributing factors to the successful management witnessed in these inland fisheries. Two current policy issues (conservation and commercial harvesting) were introduced in order to portray the management complexities within the fishery and to illustrate the proactive role played by First nations in designing options to address the issues. Finally, it was argued that the level of co-management achieved within the Skeena inland fisheries is partially a function of political empowerment processes articulated for two decades by the Gitxsan and Wet'suwet'en. A connection is drawn between the processes of co-management, empowerment, and community economic development such that activities within one process imp[act developments in the other processes. In essesnce, they are inter-linked each acting to reinforce the resiliency of the other. The following chapter reviews the analysis presented in this chapter and offers recommendations arising from the research. 93 TROUBLED WATERS Co-Management in the Aboriginal Fishery: THE CASE OF THE GITXSAN AND WET'SUWET'EN Chapter Six: RECOMMENDATIONS AND CONCLUSIONS 6.1 Conclusions This thesis has taken an in-depth look at the development and implementation of co-operative management, within the Gitxsan and Wet'suwet'en inland fisheries, in the Skeena watershed. In particular, the thesis has explored the historical record pertaining to these fisheries and the active suppression of indigenous fisheries management and practices. The thesis argues that this suppression is not only an illustration of colonialism but is also explained by deeper forces which impact cross-cultural exchange. Parties representing different epistemologies, systems of thought, and belief structures are likely to misinterpret what they see and what they hear when in the presence of the other. The cultural negation of the other is a dynamic which was present when the Fisheries Regulations were first implemented in BC in 1888, and its legacy continues. The case study has shown that a functioning system of resource management pre-dated contact and that this system was an integral part of the governance structure of these First Nations. Access to the resource, gear types and trading were all functions controlled by the indigenous system. Here was an example of a locally controlled sustainable fishery operating within the limits of resource productivity. The case study has also illustrated that several important functions of this traditional resource management system are still in effect even thought they were subjected to strong regulatory control imposed by the state. The case study illustrates that public policy development for controversial issues is often propelled by litigation. After many years of confrontation between First Nations communities and the regulatory agency, regarding 94 jurisdictional authority, legal rights to harvesting were established by the Supreme Court of Canada in the Sparrow decision. This decision motivated the development of the Aboriginal Fisheries Strategy which represented the federal government's policy response. It was a modest response initially aimed at building working relationships between parties with low trust. The focus was to encourage self-monitoring and self-regulation within the food/social and ceremonial fisheries. The AFS was to be a short-term strategy to ensure First Nations the ability to exercise their rights within fisheries. It was designed to be a stop gap measure while the treaty process defined the scope of co-management and decision-making for all resources. Ten years later the AFS continues to function and the case study examines current management functions performed within the Gitxsan and Wet'suwet'en fisheries under the AFS agreements. There are evident strengths witnessed within these fisheries and they are identified. Key to the successful management of the fisheries is the traditional governance system, capacity to deal with D F O technical data, the separation of policy from science, community support, political empowerment processes which help to balance the negotiating table, identification of shared interests between the parties and internal policy development which includes a dispute resolution mechanism. It is suggested that the successful management portrayed in the case study is not particularly attributable to the AFS but to the vision and persistence of the Nations in maintaining their role within their fisheries. The AFS has assisted through the delivery of important funding and the support of a legalized conservation-based commercial harvest. The important point is that without the AFS these First Nations would still have an active role in management because they have a long history of asserting their authority. Two key issues have been identified which will continue to be articulated within the inland fisheries - conservation of less productive wild stocks and commercial harvesting. The practise of conservation by D F O is critical as the impacts of conservation measures, by law, must be borne most heavily by the commercial sector and must be applied prior to the fish arriving in the inland fisheries. A n example of a current stock issue is introduced to illustrate the management problems. It is too early in the process to accurately predict the management outcome. The other pressing issue facing inland fisheries is access to commercial harvesting. The case study shows the significant positive impact that a commercial harvest can bring to a First Nations community. As difficulties continue to mount in the mixed-stock fisheries, there will be 95 more pressure to move the harvesting effort inland. Given the furore which accompanied the granting of limited pilot sales agreements on the Fraser as well as the ESSR fishery on the Skeena, it is difficult to predict how proactive D F O will be on this issue. Finally connections are drawn between the processes of co-management, empowerment and community economic development. It is argued that each reinforces the other causing a dynamic change. Empowerment CED Co-management Commercial Harvesting 6.2 Research Questions Reviewed There were five research questions introduced in Chapter One which defined the scope of this study. Each is briefly reviewed in light of the results arising from the research. 1. How did indigenous resource management systems of the Gitxsan and Wet'suwet'en function prior to colonization? Key results include: ® A n understanding that many of the features of the pre-contact resource management system continue to be expressed in the modern context. ® A property rights regime over common "pooled" resources which was/is collective in nature. Ownership and authority over the resource base was/is assigned to kinship groups, Houses and Clans. Hunting territories and fishing sites are regulated by the House groups and access is restricted to House members and others by permission of 96 the House authorities. Rather than a "commons" which was owned by none and exploited by all; these fisheries were /are owned by collectives and sustainably managed for all. This is an example of a communal property resource. © Gear types were designed which suited specific environmental situations and live capture methods predominated. The gear types used were primarily baskets, traps and weirs. These techniques were consistent with the value structure of these societies which deplored the needless killing of any animals. © Traditional governance structure - the feasthall was and is the seat of government for the Gitxsan and Wet'suwet'en Nations and their territories. Feasts are the formal mechanism by which traditional laws are ratified and implemented. Resource access and distribution is directly impacted by decisions reached within the feasthall as names and titles to territories are conferred and witnessed within the feasthall. 2. To what extent can opposing worldviews accommodate one another in fisheries management? Key results include: © The history of interactions between the two parties (state and First Nations) reveals misperceptions based upon limited cultural awareness of the other party. The inability of state officials to recognize the existence of an indigenous resource management system is partially a manifestation of a cultural barrier which continues to be expressed to this day. The case study also reveals that education is a powerful force and the federal government's belated recognition (as illustrated in current AFS agreements) of the authority of the hereditary system, within these inland fisheries is a fundamental example of accommodation between different worldviews. ® Two other areas where accommodation between value systems is occurring are in the commercial harvest and conservation. The Gitxsan have long asserted that their fishery includes both subsistence and commercial components. By entering into commercail sales agreements with the Gitxsan, D F O provided official legitimacy to this harvest. These goods are produced for their exchange value representing a shift from production organized for use value. The other area of shared values between the parties involves conservation where both are focused upon promoting low impact technologies (selective harvesting methods) and experimental selective techniques (fish wheels) in the inland fisheries. 97 3 Is the current Gitxsan and Wet'suwet'en fishery co-managed? Where is power-sharing occurring? Key results include: © Shared-management activities are occurring but First Nations are reluctant to label the management regime delivered through the AFS to be co-management. Rather the current context is described as preliminary co-management as D F O is perceived to be the controlling party and a partnership of equals is not expressed. © Management agreements within the Gitxsan fisheries indicates that power is being shared in the areas of fishery access, regulating fishery harvest (monitoring), compliance with rules and returning optimum value to fishers. This represents a change by D F O from previous management practice and was motivated by new court rulings regarding aboriginal rights within the fishery. Very little power-sharing is occurring in the areas of policy making, ensuring the productive capacity of the resource and resource use co-ordination. Government is not devolving power in the areas of greatest impact to the long-term sustainability of the resource. 4. In the current context of the inland fisheries, is the assertion of aboriginal rights and title a fundamental prerequisite for meaningful participation in resource management? Key results include: © The political history of the Gitxsan and Wet'suwet'en reveals that a lengthy and active political campaign targeted to change public policy preceded a more recognized role in resource management within the inland fishery. At the same time, other First Nations were also taking actions to empower themselves and these actions have assisted all First Nations to have a more meaningful role in fisheries management (Sparrow). The political empowerment activities of the Gitxsan and Wet'suwet'en included litigation for ownership and title to traditional territory and ultimately has resulted in profound changes which limit how government can implement resource development within First Nations' territory (Delagmuukw). © Research conducted within the United States confirms that the political assertion of ownership or authority over lands by a First Nation is a fundamental requirement to sustaining economic development (Kalt 98 1993). A lead role in key economic development decisions (i.e. resource management) is necessary to enable successful community economic development. 5. How are co-management and empowerment processes linked? Key results include: © The research reveals that co-management and empowerment are linked together in a dynamic relationship. Co-management arrangements with government are preceded by litigation or other serious actions aimed at changing public policy. Government does not easily devolve power or authority and must be propelled by the political process. Expanding the scope of co-management agreements is also influenced by political empowerment processes. The Gitxsan were able to negotiate for commercial harvesting within their fishery because they had been proactive on both the political and scientific fronts. Their rationale for a commercial harvest was rooted in science but was given profile by the political actions which they had engaged in for a decade. Empowered co-management agreements assist in delivering community economic development and act to stimulate empowerment processes as validations occurs. 6.3 Long-term Sustainability for Skeena Inland Fisheries A long-term view focused on protecting the fisheries of the Skeena watershed suggests the necessity of moving to terminal harvests, as the Gitxsan have articulated for two decades. For ecologists, this is an inevitability and the only realistic strategy for dealing with the problems of mixed stock fisheries.42 For the coastal commercial fleets this may mean the end of a way of life, for First Nations it could mean a return to management practices of the past. Traditional knowledge could be an important currency in this new economy. For the Gitxsan and Wet'suwet'en, who continue to manage their fisheries within traditional governance structures, this knowledge is accessible. Parcival Copes (1995) argues that terminal harvesting should not be viewed in the context of a zero-sum game - gains for one party are 99 matched by losses for the other. He suggests that stock specific management practised in terminal harvesting will ultimately lead to considerable benefits as the salmon resource would be able to produce at its maximum potential. He bases his conclusions on research which suggests that sockeye stocks could be increased to allow for a tripling in harvests.43 It is not clear what the ecological capacities of the Skeena watershed are and whether the current productive capacities of the North Pacific would support this increase. What is clear is that solutions to address biological diversity and long-term sustainability need support from all harvesting sectors to be properly implemented. Mitigation strategies to address "short-term" job displacement will need to be developed as part of the strategy. Perhaps terminal fisheries could direct a percentage of proceeds to be used as income for coastal fishers. In terms of salmon sustainability, there are many factors to consider. Walters (1995) suggests that the current coastal fishery is not sustainable either ecologically or economically. For evidence, he indicates there has been a steady concentration of salmon production into fewer larger populations with diversity dropping 50% since 1950. There also is evidence that the ocean carrying capacity is shifting due to global warming of surface temperatures. Low returns of Babine sockeye in 1998 and '99 resulted in the closure of the Skeena coastal commercial fishery. D F O scientists suggest that ocean warming caused excessive ocean mortality. 4 4 A review of the Sustainability Indicators introduced in Chapter 3 will help focus the analysis on the performance to date of the current regulatory regime on the Skeena. Pinkerton and Weinstein (1995) argue that co-management or community-based management ought to have positive impacts on long-term sustainability. As stated previously, inland fisheries are last in the harvesting chain and the application of co-management initiatives in the inland will impact sustainability in limited fashion. The greatest impacts upon stock levels now occur in the coastal fisheries. Inland fisheries can be proactive in assessing habitat impacts, stock assessments and selective harvesting (all evident in the case study) but migratory species in a shared watershed require cross-sector conservation strategies. Below are some initial conclusions regarding sustainability on the Skeena system: 1. Is the resource reproducing itself? - The answer is mixed. Some entire species are not, and many stocks of other species are 100 seriously depressed. Many believe there will never be another coho harvest on the west coast of Canada. The accompanying graph on coho escapements in the Thompson R. reveal this clearly. Enhanced runs of sockeye returned in record numbers to the Skeena this summer but that was after two very bad returns caused by disease and ocean mortality. 2. Is genetic diversity maintained? The clear answer is no. The work of Carl Walters (1995) documents a 50% decrease in diversity. Morrell (2000) indicates that production of all Skeena salmon species but pinks is concentrated in a small and decreasing number of stocks. 3. Are resource harvests continuing? Yes on some species. Some First Nations cannot harvest their traditional species or stock any longer - Gitxsan and coho. 4. Is the value of the fishery maintained? No. Graph 3 gives a clear indication that the value is plummeting. 5. Is the local fishing community continuing its relationship with the resource? Yes, the Gitxsan and Wet'suwet'en Nations are continuing to harvest and manage the resource in their territory. This relationship, especially where tied to wild stocks is tenuous - i.e. Bulkley River stocks of sockeye and coho. Coastal fishing, global warming and habitat changes may all be having deleterious impacts on these stocks. The information presented above indicates that long-term sustainability of the resource is questionable - that current regulations are not delivering upon the goals of conservation. Some of the current impacts are not controllable by local institutions - global warming, ocean carrying capacity. International, national and local efforts are required to provide conservation measures which will deliver a sustainable resource. In this collective effort, the case study has illustrated, that the First Nations of the Skeena watershed will be proactive and effective participants in the design of any future conservation strategies within their watershed. 101 Trend in Coho Escapements into Enhanced Coho-producing Streams in the Thompson River Watershed Graph 2 20 OOO .15 OOO 60 OOO. 5000 o •984 0985 1986 J987 1988 1989 I990 699' "1992 1993 1994 1995 1996 Source: Shuswap Nation Fisheries Commission, May 1998 Graph 3 Landed Value for Net*caught Salmon, 8976-97 While prices for salmon have fluctu-ated over the past twenty years, the most notable, and recent, trend, is the dramatic drop since 1988. Adjusted for inflation, prices in 1997 were approxi-mately a third of the . price in 1988. 7* yy yfi ?? 80 8< Sx C3 8 4 85 36 87 88 85 90 9< g i 93 s<< 95 9* 97 : Sockeye Chum - ~ •= pink Source: Program, Planning and Economics Branch, Fisheries and Oceans Canada, 1998 101a 6.4 Recommendations As a result of the research completed for this thesis, the following recommendations aimed at both enhanced co-management within the aboriginal inland fisheries and improved fisheries management in general, are outlined below. These recommendations do not constitute a comprehensive strategy for a sustainable west coast fishery. That task would require significant input from the scientific community, political community and the many communities of harvesters including the public. The thesis research focused upon one case study and therefore the recommendations reached are limited in nature. They are intended to provoke discussion and to guide further work on the complex issues involved. Two guiding principles have been used to help frame the recommendations. These principles have been adopted in order to propel change forward on a particular path. The future of the inland fisheries is tied in equal measure to both these principles. Without an assured supply of diverse stocks to the riverine fisheries and without the expansion of local decision making powers healthy, viable and economically productive aboriginal fisheries will be in jeopardy. These fisheries are constitutionally protected, and as such must legally be given management priority over all other fisheries. Thus their maintenance is a matter of some urgency. Principle # 1 - Recommendations for change must help to enhance the biodiversity and sustainability of the fishery resource. Principle # 2 - Recommendations need to address themselves to providing historical justice within the fishery. 6.4.1 First Nations Related Recommendations It is recommended that the Wet'suwet'en Chiefs develop a strategic plan for Wet'suwet'en Fisheries. Rationale: The development of a strategic plan would be one method for providing a comprehensive long-term vision for stock survival. A number of stock based issues are affecting the Wet'suwet'en fishery and a pro-active stance particularly in regards to scientific needs could be 102 helpful. In addition, a long term vision regarding harvesting technology and requirements would be useful. Pros Cons © Development of a © Time, money and strategic plan with set personnel must be objectives would available to reinforce the ability to be implement this proactive and effective in negotiations with agencies and the development of the fishery. © The process of developing the plan would focus attention on the fishery and would establish bench marks against which to measure progress. It is recommended that the Wet'suwet'en conduct counts of spawning escapement. Rationale: Long-term stock viability is aided by accurate escapement accounts. Pros Cons © Collection of reliable © Need trained and numbers which can't be committed staff disputed due to ground- capable of doing stock truthing assessments on © Ground-truthing also spawning beds enables management to identify tributaries with stocks in need of management attention. Some Bulkley stocks (Nanika) require special attention. 103 It is recommended that the Wet'suwet'en Nation negotiate for a broader range of gear options in their AFS agreements, specifically weirs and fish traps. Rationale: Both the Gitxsan and Wet'suwet'en have a detailed historical record which documents the central role occupied by these gear types within their pre-contact fisheries. Weirs were located along both the Babine River system and the Bulkley River drainage. Elders have testified that the wiers were either partial obstructions or had removable sections in order to allow fish to pass up to the spawning beds. 4 5 As well, photographic evidence reveals an elaborate system of fish traps were employed both at Hagwilget and Moricetown Canyons. During the 1920's, D F O , in an attempt to improve fish passage at Moricetown by blasting, destroyed the site of the principal sockeye trap which supplied nuch of the salmon needs of the village. 4 6 The large rock obstruction downstream at Hagwilget Canyon, which was critical to the salmon fishery at that location, was similarly destroyed by federal fisheries officials in 1959.47 After the destruction of the trap sites and the banning of traps, D F O introduced the gaff and dip nets in order for the community to meet its fishing requirements in this altered environment. Indigenous technologies were rendered obsolete and an entirely new technology was applied which had no cultural relevance to this context. Aboriginal fishers were forced to learn an entirely new way of fishing which remains challenging to this day. This historical record makes a compelling case for the infringement of aboriginal rights as outlined in the three step test in the Sparrow decision. A key question in the test to determine infringement is whether there has been as " little infringement as possible in order to effect the desired result ". 4 8 This extends to gear type as has been made clear in both R. v. Sparrow and R. v. Jackjohn, and John. Although the actions of D F O predate the inclusion of Section 35 (1) in the Constitution of 1982, there is a moral argument that D F O has a responsibility to redress this situation by assisting with the development of traditional fishing technologies. The current AFS agreement only supports a fish wheel which is not an effective technology for this situation. 4 9 104 Pros © A fishing weir is traditional technology and culturally appropriate. © There would be a much lower catch per unit effort required with a weir. © The mortality problem associated with the gaffs would no longer be an issue (this was raised in interviews with 2 D F O officials as a management problem). © A weir would also provide enhanced data collection possibilities as tagging and scale analysis and D N A sampling could all be performed at the weir efficiently. © The development and use of fish traps would be of great educational value for youth and the public. This traditional knowledge is quickly disappearing. Cons © Cost - this could be an expensive option requiring innovative design. It is recommended that the good relations between the Gitxsan and Wet'suwet'en fisheries organizations at the technical level be encouraged and supported by DFO. Rationale: As discussions unfold concerning protective measures for wild stock populations as per Nanaka sockeye, co-operative based technical analysis and recommendations for action collectively designed by the two Nations is a critical tool in implementing successful change. Both Nations operate terminal based fisheries and share mutual concerns regarding stock preservation. 105 Pros © Meeting as two Nations to dialogue and scope out a mutually agreeable strategy would provide a stronger negotiating position with D F O for the coming season © Identifying and supporting a management option to address Nanika recovery provides clarity in terms of the Nations' interests and will assist D F O in its discussions with other harvesting groups which may be impacted by management options focused on Nanika sockeye. It is recommended that the Skeena Fisheries Commission host a workshop for chiefs of the Skeena Nations in order to fully inform them of the implications ofDFO's Wild Salmon Policy. Rationale: To be fully prepared to enter informed debate regarding the impacts of the policy upon local populations of wild stock and to effectively negotiate appropriate escapement targets. D F O is proposing to group spawning stocks into stock aggregates of genetically related fish. Designation of only a small number of aggregates, each comprising many spawning tributaries, may lead to extirpation of runs to less productive tributaries. Preserving biodiversity is important but it remains to be seen at what level this policy will manage for stock diversity. Pros Cons © Chiefs/houses and clans © Time and money would be have the ultimate required to implement. responsibility for the preservation of the resources, of their individual territories; and detailed understanding of 106 this policy could assist them in their duties to protect their resources. © A session of this nature would reinforce connections already in place between the Nations. 6.4.2 Agency Recommendations It is recommended that DFO conduct a comprehensive program review of the AFS with a goal to enhance co-management on the ground. Rationale: Although the AFS was never designed to involve First Nations in policy development/ this is one Of the key management functions identified by authors as critical to building effective co-management arrangements. Those who are most heavily impacted by policy need an active role in its design. It is important to listen to what First Nations indicate their needs are in relation to fisheries management and to address them. The AFS was conceived nine years ago as a short- term pre-treaty interim measure. The slow progress on treaty delivery creates the need for more power-sharing and stronger co-management within the fisheries and the AFS. Pros © The most recent internal AFS review was undertaken in 1997. These results were not published. © There is a solid foundation of fisheries management expertise within many First Nations and this expertise and insight should be harnessed in order to build a more effective and desired co-management structure. © There is a shared dissatisfaction by many Cons © Agency headquarters must be prepared to share policy development and steer a path for the devolution of additional powers. 107 First Nations with the current program and corrective actions could be taken by the agency before it escalates into strong resistance. © D F O possesses first hand experience with setting up co-management institutions within the northern claims settlements. It is recommended that DFO closely monitor its management practices affecting Section 35 fisheries, especially consultation requirements, and take corrective actions to be fully compliant with legal obligations. Rationale: Consultation to date has sometimes failed to meet legal requirements. Because co-operation from the state is essential to co-management it is important to fulfil all required obligations. Move in the direction being suggested by F N . Pros Cons © The agency could be spared potential embarrassment if they were found in non-compliance with legal obligations. © Good will and better relationships between D F O and First Nations would be enhanced. It is recommended that DFO develop the ability to collect real-time stock composition at the Tyee Test Fishery on the Skeena. Rationale: There is need for a daily or weekly picture of stock composition of the Skeena salmon run. This is critical for adequate protective measures for wild salmon populations. Various techniques, including 108 D N A analysis, are available, but research and development is required to fit them to the Skeena situation. Pros Cons ® With a number of wild ® Locating the additional salmon stocks intermingled dollars. with enhanced runs at the coast, daily stock composition information will ensure closures are timed to minimize harvesting impacts © D F O has a fiduciary responsibility to First Nations to provide food fish and properly timed closures will assist with this objective by protecting stocks essential to tributary fisheries or those that are currently depressed (i. e. Kitwanga sockeye) It is recommended that DFO enhance the FN awareness training currently available to staff. Rationale: Operational staff are provided with limited formal training and their knowledge base regarding traditional systems and laws could be enhanced in order to be more effective in field duties, in-season management, and policy development. It is further recommended that future AFS agreements deliver dollars toward the development of an Historical Profile of each specific aboriginal fishery. These Profiles might best be developed at a watershed level. Rationale: Each aboriginal fishery in the province has a rich historical record. Documenting this would not only be a useful educational exercise but it would help to build improved working relationships. A field officer or manager that understands the traditional systems and dynamics of the past is better equipped to observe and understand current processes 109 within the aboriginal fisheries. Some of the history has been lost and First Nations members also would appreciate and benefit from an historical review of their fishery. A project of this scope would reinforce connections which are already present as a watershed based approach might prove most useful. It is further recommended that DFO provide a refresher course to its staff regarding the legal precedents involved in such cases as Guerin, Sparrow, Gladstone, Jack, John and John and Delgamuukw to help inform decision making. Pros o A n investment in education and training initiatives can assist in both improving working relationships and in fostering creativity. ® Staff generally work with a variety of First Nations and a solid grounding in their protocols, structures and decision making processes is extremely valuable to effective delivery of services. Cons ® Additional funding and time would have to be secured to implement these recommendations. It is recommended that DFO adopt a pro-active stance to expand First Nations opportunities for commercial harvesting. Rationale: Recent events in Burnt Church illustrate that being proactive is usually more rewarding than being reactive. The Marshall decision applies to treaty rights to a commercial harvest and could impact the 14 Treaty Nations in BC. In addition, rulings under Gladstone and Jack, John and John carry implications for trading or commercial rights to fish. Pros Cons • Agency action in this o Coastal commercial direction might help avoid fishing interests costly litigation. strenuously oppose the 110 © There are additional opportunities for terminal based commercial harvesting within the province beyond those covered by ESSR licenses. allocation of harvesting to inland fisheries. It is recommended that DFO continue its emphasis upon web site information delivery. Rationale: Given the number of players involved in Canada's fisheries and the contentious nature of many of the regulations or programs it is critical that the public be able to access data in order to inform the debate. D F O is currently a role model for other agencies in terms of the accessibility provided to reams of information including all AFS agreements and stock assessment data. Pros Cons © Both D F O and its © Securing necessary funds stakeholder groups draw to maintain and expand great benefit from the the current service, delivery of agency based information. More informed decisions should be a key result. © Fisheries management occurs with the participation of many rural, isolated people. Wed delivery is the most effective means for imparting this information. 111 6.5 F u t u r e R e s e a r c h There are four areas arising from the case study which would benefit from future research: 1. Economic analysis of the benefits delivered to the local economy by the Gitxsan commercial harvest. There has been no thorough study of the impacts of harvest revenue upon both household incomes and the subsequent circulation of those dollars within the local economies including within the feasthall system. This information could be extremely useful for illustrating the importance of terminal commercial harvests which have been heavily criticized by the coastal commercial sector. 2. The development of a business case analysis which would provide a basis for value added fish production in Skeena inland fisheries would be helpful. D F O did complete a study in 1994 which indicated market viability for "sockeye caviar" and smoked fish products (Glavin 1998, p. 29). It would be useful to update the results and conduct more market development. 3. It would be useful to conduct an in-depth analysis of achievements reached under the Boldt decision and compare those with the AFS. While Boldt is based on a treaty right and the AFS is based on unextinguished aboriginal title, it would be useful to review the strengths and weaknesses in each given that both approaches span at least a decade of implementation. This type of information might assist D F O in its deliberations regarding First Nations and commercial harvesting access. 4. A n evaluation of the commercial rights delivered as part of the Nisga'a Treaty is needed. With just one season completed/it is a little too early to evaluate the results but this model needs to be analyzed and compared to the current ESSR and pilot sales models. Strengths and weaknesses need to be assessed in a comprehensive manner. 112 6.6 L e s s o n s L e a r n e d As a result of the research the following observations can be made concerning the regulatory enviromnent within the inland aboriginal fisheries: © First Nations are not just another stakeholder group in the salmon fishery. They have constitutionally protected rights which have been defined in a number of landmark court cases (Sparrow, Gladstone, Jack, John and John and Delgamuukw). D F O has both a fiduciary and legal responsibility to apply management practices which guarantee harvesting opportunities for Section 35 fisheries, once conservation needs have been met. © Litigation often propels public policy in controversial issues. Clear tenure rights, within the fishery, assist greatly in minimizing jurisdictional disputes (for example the Japanese inshore fisheries). Litigation is only one part of the process as Justice McFarlane wrote in the Meares Island case " litigation is but a part of the whole of a process which will ultimately find its solution in a reasonable exchange between governments and the Indian nations" (Gisday Wa and Delgam Uukw 1987, p. 89). © Co-management of resources is one strategy for developing more effective working relationships between parties with conflicting rights, interests and mandates. Co-management agreements must meet the objectives of all parties in order to be championed by them. Parties must feel like they are equal partners in the decision-making process. First Nations are reluctant to call the Aboriginal Fisheries Strategy, an example of co-management, because DFO's management agenda still dominates the discussions. Co-management agreements within the Northern Claims settlements provide legislated powers to Co-management Boards enabling First Nations to participate more fully in decision-making than in AFS agreements. © The negotiating strength of a First Nation is linked to internal political empowerment processes. The Gitxsan and Wet'suwet'en Nations have managed to negotiate AFS agreements which meet many of their objectives because they are viewed as important allies and capable managers. This perception has developed as a result of a continuous process to assert ownership and jurisdiction over traditional territories culminating in the landmark Delgamuukw court case. The application of AFS policy is mixed throughout the province. Some agreements 113 contain more management functions and more dollars than others. This is partly a reflection of the negotiating power the First Nation can bring to the table. © Community compliance with resource regulations can be achieved by: 1. Working within the traditional governance structure 2. Developing community-based enforcement systems © State recognition of traditional governance structures and authority is critical to the development of co-management initiatives with First Nations in the field of natural resource management. This recognition is critical to securing respect, trust and compliance between the parties. It is important to acknowledge that First Nations have significant expertise within their local fisheries which they have developed over many hundreds of years. The regulation of fishing access within the aboriginal fisheries is a regulatory function which belongs with the First Nation not the state. This is the current practice in the AFS agreements negotiated with the Gitxsan and Wet'suwet'en. © The inland fisheries of the Gitxsan and Wet'suwet'en are examples of successful local fisheries management. Success is defined as management stability, community support, dispute resolution procedures, conservation activities to protect stocks and compliance with local customs or laws. One fisheries expert has commented that these fisheries are some of the most successfully local managed fisheries in the world. © Significant barriers are mitigating against an expansion in First Nations commercial harvesting opportunities. The Gitxsan are continuing to push against these barriers after 23 years of concerted effort. Commercial harvesting revenues provide First Nations a key opportunity to invest in long-term community economic development initiatives. Commercial harvesting within the inland fisheries also offers more stock specific management leading to more effective conservation. © The long-term viability of the inland fisheries depends upon D F O applying conservation-based management to the coastal commercial fisheries. The most appropriate conservation strategy would be to move to terminal-based selective harvesting. This strategy has major implications for the commercial fleet and coastal communities. Many wild stocks are declining and appropriate corrective actions are 114 overdue. Co-management initiatives within the inland fishery do not provide for the range of powers necessary to ensure adequate protection of the stocks once they enter the harvesting chain. 1 This quote is part of the oral history record compiled as background for the Delgamuukw court case. This quote is attributed to Gitxsan elder Henry Wright and was gathered in March 1981. It is located in Section 974 Tab 28 p.4 of the Delgamuukw collection. 2 Some families continued to live on the territories right through into the 1950s. If children d id not attend school there was less of an incentive to relocate. The small white population in this area meant that there was less pressure applied to relocate natives than in some parts of the country. 3 A n informant indicated that M E L P had burned the cabins and that the Wet'suwet'en have now rebuilt them and hope to get provincial funding to offset costs. 4 Actions at Burnt Church, N B between the Band and D F O in the summer of 2000. These interactions were highly publized across the country. 5 See for example, Newel l , D . Tangled Webs of History, 1993; Marchak, P. et al, Uncommon Properly, 1987; Parnesh, S. Aboriginal Fishing Rights - Laws, Courts and Politics, 1998; Meggs, G. Salmon-The Decline of British Columbia Fishery, 1991. 6 The exceptions were the Hawthorn, Belshaw and Jamieson Study i n 1950's of Indian Economies and P. Pearse's Commission in 1981 -Final Report - Turning the Tide. For fuller discussion see, Newell , D . Tangled Webs of History, 1993. P. 210. 7 These stories were told to me by many fishers who were involved. 8 Merchant, C , The Death of Nature 9 These are traits which researchers who have studied the culture al l indicate are active within it. Researchers include Antoina Mi l l s , Leslie Johnson and Richard Daly. 1 0 Ostrom 1990, Schlager and Ostrom 1992, Berkes 1994 for example. 1 1 Examples include the management of Japanese inshore fisheries by co-operative associations, village management of the fisheries on Lake Titicaca, the Norwegian Lofoten fisheries managed by the fishers or the Beverly-Karninuriak Management Board for cariboo in Northern Canada. 1 2 Clayoquot, F N resistance to D F O authority, Tatshenshini, Pr. Rupert fishermen encircling the Alaska State Ferry , Carmanah Valley, Walbran 1 3 Aboriginal Affairs and Northern Development struck a Standing Committee in 1994 to examine co-management within the context of natural resources. The Committee tabled its report in 1995. The Department of Fisheries and Oceans began to use the concept in relation to aboriginal fishing in reports in 1994. 1 4 D F O hired a professional mediator in 1995 to help facilitate the multi-stakeholder Skeena Watershed Committee which could not make substantive progress due to the dissension at the table. The parties indicate that his efforts assisted in making the participants adhere to the process rules. 115 1 5 Throughout the case study and the thesis reference is made to the functioning of a communal property rights regime. It is important to indicate that the term communal is not used to describe a system of sharing and management involving an entire village or Nation but rather it is used to describe sharing, participation and decision-making amongst the members of a Clan and House. Communal activity operated and continues to be expressed through the structure of these kinship groups. In the case of the Gitxsan and Wet'suwet'en, resource management is seated within the Houses and Clans. 1 6 Morre l l , M . " The Struggle to Integrate Traditional Indian Systems and State Management in the Salmon Fisheries of the Skeena River, British Columbia" in Co-operative Management of Local Fisheries. U B C Press. Vancouver 1989. P. 233 1 7 Told to me by Wet'suwet'en family members. 1 8 Hyz ims , Ernest - Gitxsan elder in oral testimony gathered for Delgamuukw court case, X 974, Tab 19,1982 1 9 Information from Wet'suwet'en family members 20 Ibid 2 1 Information provided by a fisheries consultant. 2 2 In Ray's paper it is documented that Wil l iam Brown recorded that in the case of the Wet'suwet'en he met 46 "men of property" in addition to 20 leading nobles. The nobles may have been the head chiefs while the others were sub-chiefs or wing-chiefs. 2 3 Information provided by a fisheries consultant. 2 4 This situation is alluded to i n Ray's (1988) work and was also reinforced in interviews with a fisheries consultant. 2 5 Information provided by Wet'suwet'en family members. 2 6 This argument would subsequently be extinguished by the Sparrow decision. 2 7 The sources for this section are informants wi th D F O , Gitxsan Watershed Authority and the Skeena Fisheries Commission. A s wel l local -Smithers- stakeholders involved portrayed the view that the commercial interests leaving the table ended the process. 2 8 Information provided by a fisheries consultant in Dec. 2 9 Information supplied by interview October 2000. 3 0 Two interviwees raised this same point in interviews i n O c t / N o v 2000 3 1 Information provided by D F O interviewee in October 2000. 3 2 This information was gathered through personal observation, discussions with local residents of Moricetown and staff of Wet'suwet'en Fisheries. 3 3 Numbers provided by Wet'suwet'en Fisheries. 3 4 The following information was provided through interviews wi th four officials associated wi th the Gitxsan Watershed Authority. 3 5 First Nations included the Gitxsan, Wet'suwet'en, Tahltan and Haisla. 3 6 See - M i k e Morrell 's study-1985 -The Gitxsan-Wet'suwet'en Fishery in the Skeena River System. Hazelton: Gitxsan-Wet'suwet'en Tribal Council . 3 7 For the purposes of this study success is defined to include management stability, community support, dispute resolution procedures, conservation activities to protect stocks , and compliance of local customs or law. 3 8 The Nunavut Tunngavik Corporation requested the Federal Court set aside the decision of the D F O Minister regarding turbot quotas established by the Nunavut Wildlife Management Board. It was argued that the Board failed to properly consider the advice of the Board as required by the 1993 land claims agreement. The Court ruled that the Minister d id exceed his jurisdiction as authorized by statute. Quoted i n Sustainable Strategies for Oceans: A Co-Management Guide, National Round Table on the Environment and Economy, 1998. Ottawa. Chapter Three. 3 9 Interviewees represented the Gitxsan, Wet'suwet'en, Haisla and Tahltan Nations 4 0 Information supplied by Wet'suwet'en Fisheries. 116 4 1 This action has been described as a community blockade preventing access of R C M P to reserve land. D F O had enlisted the R C M P to act in the role of enforcer in shutting down a smokehouse which was selling "illegal" fish. The agency officials were stopped from entry. In the ensuing confrontation, D F O and R C M P were pelted with marshmallows leading to the label -Marshmallow War. 4 2 See Last Call - The Will to Save Pacific Salmon. David Suzuki Foundation. 1998 or Walters, C. Fish on the Line - The Future of Pacific Fisheries. D a v i d Suzuki Foundation. 1995. 4 3 Based on the work of Henderson, 1991 "Sustainable Development of the Pacific Salmon resources in the Fraser River Basin". In Perspectives on Sustainable Development in Water Management: Towards Agreement in the Fraser River Basin. A.J . Dorcey, ed. Vancouver: U B C , Westwater Research Centre. 4 4 Information from an interview with D F O scientist in October 2000. 4 5 Elder's testimony gathered for the Delgamuukw court case 4 6 Wet'suwet'en interviewees supplied details concerning the 4 7 Information supplied by a fisheries consultant in Dec. 48 R. v. Jack, John and John, 1995. Court of Appea l for British Columbia. Nos. CA014766, CA014771, CA014772 Vancouver Registry. P22. 4 9 Interviews revealed that the fish trap located in the Moricetown Canyon this summer managed to catch a limited number of fish. It was also revealed that fishing wheels require significant adjustments before they begin to function effectively. 117 List of References Abrams, P. (2000) Overcoming Obstacles to Implementing Community-Based Collaborative Governance of Natural Resources: The Case of the Clayoquot Sound Central Region Board. Unpublished Masters Thesis, Simon Fraser University, Burnaby. Arnstein, S.R. (1969) "A Ladder of Citizen Participation." 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Newell, D. (1993) Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries. University of Toronto Press: Toronto. Nicholas, G.P. and Andrews, T.D. At a Crossroads:Archeology and First Peoples in Canada. Burnaby, B.C. Simon Fraser University Archeology Press, 1997. Notzke, C. (1994) Aboriginal Peoples and Natural Resources in Canada. North York, Ontario: Centre for Aboriginal Management Education and Training (CAMET), Claudia Notzke and Captus Press Inc. Ostrom E. (1990) Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Parsons, L. S. (1993) "Shaping Fisheries Policy: The Kirby and Pearse Inquiries - Process, Prescription and Impact." In Perspectives on Canadian Fisheries Management. Parsons, L. S. and Lear, W. H . (eds.) pp 385-409. Canadian Bulletin of Fisheries and Aquatic Sciences. 226. Pearse, P. (1982) Turning the Tide: A New Policy for Canada's Pacific Fisheries. 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(1998) Aboriginal Fishing Rights. F e r n w o o d Pub l i sh ing : Ha l i fax . 123 Smith, K. (1998) Fisheries Co-management and the Tahltan First Nation: From the Aboriginal Fisheries Strategy to a Treaty Regime? Unpublished Masters Thesis, Wilfred Laurier University, Waterloo. Stoffle, R. W. and Evans, M . J. (1990) "Holistic Conservation and Cultural Triage: American Indian Perspectives on Cultural Resources." In Human Organization. Vol. 49 No. 2. pp. 91-99. Usher, P. (1987) "Indigenous Management Systems and the Conservation of Wildlife in the Canadian North." In Alternatives 14(1) pp 3-9. Walters, C. Fish on the Line: The Future of Pacific Fisheries. The David Suzuki Foundation: Vancouver. 124 APPENDIX 1 125 DFO Questions W h a t are the top 4 or 5 fisheries management issues facing D F O current ly i n BC? Perspectives o n resolution? W h a t are the top management issues per ta ining to the regula t ion of i n l and (aboriginal) fisheries - Skeena? AFS 1. W h a t was the impact of the Spar row decision o n regula t ion of the fisheries i n B C ? 2. W h y , where and w h e n was A F S articulated? W h a t were the goals? 3. A r e A F S agreements examples of co-management? W h a t is co-management f rom D F O ' s posi t ion? 4. W h y is co-management a po l i cy direct ion i n Sections 35 fisheries? W h a t are benefits? 5. W h y is par tner ing considered to be an advanced fo rm of co-management? H o w w o u l d it differ f rom current agreements under the A F S and w h y d i d the Minis ter ' s panel r ecommend to not proceed? 6. Is there a difference i n the negotiat ion of A F S agreements i n the late 90's vs the early 90's? 7. W h a t are the c o m m o n features or management functions i n the agreements? 8. N o t a l l A F S agreements are created equal. V e r y different dollars? W h y and h o w is this determined? 9. H o w is al locat ion determined? Does D F O just set it alone? 10. W h y are numbers used for food, social and ceremonial? - i n M a r i t i m e agreements it is stated as per communi ty requirements. 11. W h y are gear types specified i n c o m m u n a l license? C o u l d this be an infringement of abor ig ina l rights? 12. H o w are decisions reached w i t h i n A F S agreements? W h a t is the process? 13. W h e n is consul ta t ion legal ly required ? 14. W h e n science is i n dispute h o w is this resolved? 15. Is there a connect ion between A F S agreements and c o m m u n i t y economic development? C a n it be enhanced? -16. Response to the v i e w that D F O acts i n authori tar ian "take it or leave it" m o d e l of setting condi t ions i n the agreements. Where does power shar ing occur? 126 17. A r e court decisions a necessary prerequisite for implement ing regulatory change i n the in land (aboriginal) fisheries ? Does D F O v i e w the fishery as a p u b l i c good? 18. W h a t are the strengths and weaknesses of A F S agreements i n relat ion to those achieved under Boldt? 19. H a v e the goals of the A F S been met? Skeena/Bulkley 1. A s a gov't official, what were your concerns regarding fish management i n the U p p e r Skeena? 2. To wha t extent were y o u familiar w i t h F N traditions i n the fishery? D i d y o u r superiors have a good assessment of the context. 3. D i d y o u k n o w what the hereditary system was? H a d y o u received t raining? 4. W h a t is important i n negotiat ing agreements? W h a t lessons were learned o n the Skeena regarding management of i n l and fisheries? 5. Reflections on G W W A fisheries and Skeena Fisheries Commiss ion? Is g o o d management be ing practiced? H o w and w h y f rom D F O ' s posi t ion? W h a t are some of the qualities? 6. D i d the fact that the Gi txsan and Wet ' suwet 'en had an outs tanding title issue before the courts affect negotiations? 7. Reflections on the Skeena Watershed Commit tee . Wha t w o r k e d , wha t d i d not? 8. W h a t are consequences of overf ishing c o m m u n a l licenses? W h o takes the action? 9. C o m m e n t s on the A b o r i g i n a l G u a r d i a n P rogram. 10. A r e a l l other users infr inging o n abor ig ina l rights? C o m m e r c i a l fishery? 11. W h y are the 90's o n the Skeena qual i ta t ively different f rom the 80s. W h a t is D F O d o i n g differently if anything. H a s any th ing changed? W h y not B u r n t Church? 12. W h a t key lessons do y o u have to offer resource agencies to m i n i m i z e conflict . Conservation 1. H a v e stock management approaches shifted o n the Skeena over last 10 years? In response to what factors? C h i n o o k were l o w h o w d i d they come back? W h y problems w i t h Coho now? 2. H o w is conservat ion defined? Wha t is a conservat ion unit and h o w do y o u determine w h i c h stock is genetically significant? Conserva t ion of what? 3. If F N are first i n the harvest ing chain after conservat ion but i n l and fishery is th i rd i n harvest ing chain h o w is conservat ion practised? 127 4. Describe the process followed when F N indicates a stock concern? 5. What are likely management responses to current Nanika sockeye situation? 6. If a stock reaches extinction levels is D F O liable? Would this be an infringement of aboriginal rights? What happens in a dispute over conservation? 7. How does D F O deal with the need to close the fishery for stock concerns and provide days for EI entitlement? 8. Does Marshall have an impact in BC? 9. Does enforcement have to be part of D F O mandate? Does enforcement within F N fisheries need to be by FN? Commercial 1. What changes have happened in the commercial fleet over last decade? 2. How is F N commercial access provided? open market licenses pilot sales - ESSR Nisga'a allocation of T A C 1. What will future F N commercial rights be? 1. What are the barriers to the development of a productive inland commercial fishery? 128 A P P E N D I X 2 129 Describe the important elements of the t radi t ional fishery and h o w decisions a n d al locat ion worked? 1. W h y was the Watershed Au tho r i t y formed? Purpose and mandate? 2. W h a t events occurred i n the fishery w h i c h p r o m p t e d chiefs to take action? 3. D i d D F O unders tand the role of the fishery i n the culture. D i d they unders tand the hereditary system? D i d they acknowledge that the fishery was a restricted access resource allocated and managed by t radi t ional methods? 4. In your dealings w i t h D F O i n 80's d i d they unders tand there was an indigenous resource management system w h i c h moni to red the resource? W h a t were your perceptions regarding D F O at this time? W h y d i d the M a r s h m a l l o w W a r occur? 5. H a s this changed? Is there more co-operation n o w ? Wha t are the factors inf luencing this? 6. Wha t was the role of the G W W A i n the Skeena Watershed Commit tee? Was it of benefit? 7. D i d your concerns regarding the stocks and their protect ion ever match the concerns of D F O ? 8. Wha t were the key objectives Chiefs were interested i n ach iev ing th rough these agreements? • i m p r o v i n g stock hea l th /d ive r s i ty /abundance , o i m p r o v i n g C E D f rom harvest ing / processing / management , • i m p r o v i n g trust and co-operation between F N and D F O and other users, • i m p r o v i n g c o m m u n i t y involvement us ing loca l knowledge / enforcement / decisions • i m p r o v i n g equity for F N interests • i m p r o v i n g opportuni t ies for learning 11. H o w are decisions made? H o w are difficult decisions reconciled? 12 Wha t is co-management and is this in land fishery f o l l o w i n g a co-management model? 13. In w h i c h management areas is success occurr ing? E x p l a i n . 14. 15. 130 


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