Christie Blatchford at the Cohen Commission: The rights and privileges of fishing
- Christie Blatchford at the Cohen Commission: The rights and privileges of fishing
Christie Blatchford Jun 30, 2011 - 7:54 PM ET | Last Updated: Jun 30, 2011 8:53 PM ET
Not to make a fish joke, but the jig is, er, up.
In cross-examination Thursday at the Cohen Commission examining the decline of the sockeye salmon in the Fraser River, a senior official with Fisheries and Oceans Canada, the federal department still known as DFO, admitted that he believes non-native Canadians don't have a right to fish recreationally, but rather a privilege, and that he takes that attitude into negotiating rooms where he works with First Nations leaders.
"The public of Canada have rights?" Keith Lowes, lawyer for the B.C. Wildlife Federation and the B.C. Federation of Drift Fishers, asked Barry Huber.
Huber is an aboriginal adviser in the DFO in British Columbia who is now on special assignment to develop "co-management" arrangements with natives for the fragile fishery.
"Yes," Huber replied.
"Including the right to fish recreationally?" Lowes said, adding conversationally that he believed Huber himself is a recreational fisherman.
"I have a privilege," Huber said carefully.
Clearly taken aback, Lowes said, "You say public fishing is a privilege, not a right?"
"Yes," said Huber.
Lowes then read aloud parts of a 1913 decision from the English House of Lords which re-affirmed that the public right to fish in the sea and tidal waters "had been established at an earlier date" than the Magna Carta and a 1996 Supreme Court of Canada decision which held that the elevation of aboriginal rights to constitutional status "was surely not intended that . common law rights would be extinguished."
In other words, aboriginal rights exist within a larger context.
Huber demurred a little then about his lack of legal knowledge, but said, "I didn't come here [to British Columbia, from Alberta] with a right."
"So public fishing is a privilege?" Lowes pressed.
"I can't say that [legally]," Huber replied, adding, "But that's my view. I live in B.C., but I don't believe I have a right. I can't, as opposed to First Nations, say I have a right."
"You take into the room with you that belief?" Lowes asked, "that the Canadian public has no rights of fishery?"
"We have a privilege," Huber insisted.
The exchange, ordinary in the scheme of cross-examination but startling at this federal inquiry, where even witnesses testify co-operatively, was prompted by Lowes asking about something Huber said earlier this week.
On Tuesday, he said flatly that "First Nations have rights. Others don't . I think a lot of Canadians don't understand that."
Lowes, reading from notes he made at the time, told Huber he found the remark startling.
Huber said the remark "was taken out of context," noted that some people at the inquiry are quick to do that, admitted he should have been more careful and that he had been talking only about the native-only FSC (Food, Social and Ceremonial) fishery.
"I should have reflected it that way," Huber said.
A little later, Lowes was at it again, asking if the DFO mandate wasn't to "manage a public resource" on behalf of all Canadians? Huber agreed. "But your view is that the public is fishing by a privilege?"
"That's the way I view it," Huber said.
The lengthy back-and-forth appears to illustrate that the very fellow charged with negotiating new fishery deals with First Nations on behalf of all Canadians - on the "government-to-government" or "nation-to-nation" basis increasingly demanded by native leaders - is arguably prepared to give away the store because he doesn't believe non-natives have a leg to stand on.
Indeed, in the first line of the first personal profile section of his curriculum vitae, filed with the commission, Huber wrote that he enjoys "working with and helping people, in particular, Aboriginal people."
He is Ottawa's voice on the four-member panel which was testifying this week. The other members are St'at'imx Grand Chief Saul Terry, Haida policy adviser Russ Jones and Neil Todd, a consultant to the Nicola Tribal Association and operations manager of the Fraser River Aboriginal Fisheries Secretariat.
Lowes' was not the only spirited cross-examination Thursday.
Phil Eidsvik, a fisherman and non-lawyer who represents the B.C. Fisheries Survival Coalition, in his excruciatingly polite way, raised the delicate topics of DFO enforcement, or lack of it, against those who may take too many fish or fish out of season.
Wouldn't that perhaps help officials "get a handle" on illegal sales? Eidsvik asked Jones, who replied that "I don't think enforcement is a major issue."
But, as ever at this proceeding, and perhaps as it must be when there is a quartet of witnesses in the witness box at one time, Grand Chief Terry put his hand up, a sign he wished to "comment."
"In my determination," he said indignantly, "the matter (enforcement) would be irrelevant, trying to charge the person.
"We do have the right to take the fish and what we do with it is to be determined by us," he said, adding that "our people know what is right and what is wrong, and behave accordingly."
And there you have it: First Nations are inherently better than others (the sort whose people know what is right but may do the wrong thing anyway) and the government man negotiating with them on behalf of the rest of us fully concurs with that.
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