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Re: R. v. Kapp et al - Reasons for Judgment

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  • Ishgooda, Senior Staff
    from Michael Posluns ... ! ding five years, with the result that more than enough fish reached their spawning areas. All of which reflects the reality that the
    Message 1 of 1 , Aug 1, 2003
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      from Michael Posluns

      > The decision below "builds" on Karp to justify exonerating persons who had violated an Aboriginal fishery on the ground that Aboriginal rights discriminate against immigrants.

      > __________________________
      >
      >
      > Citation:
      > R. v. Anderson et al
      > Date:
      > 20030617
      >
      > 2003 BCPC 0217
      > File Nos:
      > 28489, 28490, 28491, 28492, 28493, 28494, 28495, 28966T, 28967T, 28968T, 28969T, 28970T
      >
      >
      > Registry:
      > Campbell River
      >
      > IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
      >
      > REGINA
      >
      > v.
      >
      > JOHN ALBERT ANDERSON et al
      >
      > REASONS FOR SENTENCE
      >
      > OF THE
      >
      > HONOURABLE JUDGE B. SAUNDERSON
      >
      > Counsel for the Crown:
      > T.J. Bishop, H.O. Sweeney, S. Sweeney, S.W. Fraser
      >
      > Counsel for the Defendants:
      > C. Harvey, Q.C.
      >
      > Place of Hearing:
      > Campbell River, B.C.
      >
      > Date of Hearing:
      > April 28, 2003
      >
      > Date of Judgment:
      > June 17, 2003
      >
      > [1] Forty commercial fishermen, fed up with Fisheries and Oceans Canada, threw down the gauntlet last summer to protest what they felt were incompetence and unfairness of the department in its management of the sockeye salmon fishery. It involved collective acts of civil disobedience, announced in advance and carried out openly. For their sins the Crown says they should pay substantial fines. They say they should receive discharges.
      >
      > [2] The defendants pled guilty to fishing for sockeye in Johnstone Strait during closed times in August 2002, contrary to s. 53 of the Pacific Fishery Regulations. Participating in the protest fishery were 39 trollers and one gillnetter. The catches varied from 500 fish to no fish at all. Roughly 5,412 sockeye were caught, for an average of about 135 per boat. The sockeye were in the course of their annual migration from the Gulf of Alaska to their spawning grounds in the Fraser River and its tributaries.
      >
      > MANAGEMENT OF THE FISHERY
      >
      > [3] At the beginning of the hearing, Crown counsel advised the court that Fisheries and Oceans Canada (DFO) conceded, with the advantage of hindsight, that enough of the Fraser River run sockeye were available to permit an opening of the commercial fishery without compromising good management practice or conservation concerns. What happened was this.
      >
      > [4] As the sockeye run moved southeast through Johnstone Strait, it was obvious to the defendants - and to anyone, including the DFO, who cared to visit the area - that there were exceptionally large numbers of fish. This information was passed on to the DFO in the hope that a commercial opening would be authorized. It wasn't. As Mr. Harvey put it during his argument, the DFO had "... lost their traditional common sense of looking out the window to see" how many fish there were. The defendants' concern was that the DFO's fishery management scheme had become computer-driven and inflexible, with the result that observable truths were ignored or minimized. In that vein, Mr. Harvey had these comments:
      >
      > ... in 2002 this extraordinary spectacle occurred whereby millions of fish are passing by the front doorstep of the fishing communities of Vancouver Island and elsewhere, and the fishermen are told by the computers, DFO computers, which are largely geared to Mission Bridge, a counting station at Mission Bridge ... 'we're not satisfied that there are sufficient fish to have a fishery.'
      > And that has led not just to the lost economic opportunities, ... it's led to extreme emotional frustration, hardship to families ...
      > And circumstances were the sockeye, I'm told, were not just plainly visible out in the Strait but they were ... coming in between the kelp beds and the shore, almost like a traffic jam on the road where there's not enough room so you start driving along the verge.
      > ... one of the fishery officers, I'm told, said to one of the accused, "I don't know why I'm here, I've never seen so many fish."
      > Put simply, the defendants were of the view that the DFO could have increased or abandoned its 15% exploitation (catch) rate, but seemed incapable of adjusting to changed circumstances. To prove their point that there were fish aplenty, rather than engage in a nominal fishery, they took significant numbers of sockeye. As to the disposition of the illegally caught fish, in Mr. Harvey's words, "The food bank had a field day."
      >
      > [5] The DFO's perspective is rather different. While they became aware of the unusually large sockeye run in the ocean as early as the latter part of July 2002, there was concern about the pre-spawning mortality rate of late run sockeye if they returned to the Fraser River early, as some of them did. Not having the tools to predict confidently what the rate would be, the "managers operated within the structure of the established decision rules", which is to say they acted conservatively lest the mortality rate should prove to be high. Their conservatism was based on the pre-spawning mortality rate of some 90% in the preceding five years. What was worrisome was the possibility that, if too many sockeye were allowed to be taken in the ocean and the river, and that were coupled with high mortality from natural causes, the survival rate could be compromised to the detriment of long term conservation goals. In fact, the mortality rate was found to be far lower than in the prece
      !
      ding five years, with the result that more than enough fish reached their spawning areas. All of which reflects the reality that the management of the fishery is as much art as science.
      >
      > ABORIGINAL FISHING STRATEGY
      >
      > [6] In response to the judgment of the Supreme Court of Canada in R. v. Sparrow, the DFO established a policy, known as the Aboriginal Fishing Strategy, to make political and administrative decisions regarding aboriginal fishing rights which would permit agreements to be made with natives (I use the words aboriginal, native and Indian interchangeably). The result was contracts between the DFO and various Indian bands, allocating fish for food, social and ceremonial purposes. Conservation of the stocks was to remain the DFO's first priority. All of this appeared constitutionally justifiable, and agreements were duly signed with the Burrard, Musqueam, Tsawwassen and Sto:lo bands, who historically fished for sockeye in or near the mouth of the Fraser River or its lower reaches.
      >
      > [7] The DFO went further, however. It authorized limited pilot commercial fisheries at various times for all four Indian bands in the lower part of the river, while keeping the rest of the commercial fishery closed. At this, the non-native commercial fishermen cried "foul", viewing the Indians as being given an unfair advantage. Here, the legal context of the day must be borne in mind. The courts were virtually unanimous in finding there was no aboriginal right to fish commercially, native commercial fishermen being on an equal footing with their non-native brethren. Now the DFO seemed to be moving the Indians to the head of the queue. It wasn't long before the DFO was widely accused of creating a "race-based fishery."
      >
      > [8] The defendants assert that, for the past ten years or so, the federal government, through the DFO, has known of illegal fishing by natives in the area in question, but for political reasons has chosen to ignore it and has refused to enforce the rules relating to the food fishery and the pilot fishery. The result, they say, has been gross over-fishing and illegal fish sales by the Indians, all to the detriment of the rest of the commercial fishing fleet, and perhaps to the fish stocks themselves. In support of that assertion, Mr. Harvey has filed transcripts of the testimony of Jacob Redekopp, the senior supervising DFO enforcement officer in the lower Fraser River, whose area of responsibility extends roughly from the mouth upstream to Yale. Mr. Redekopp was testifying on October 15 and 16, 2002 in this court at Vancouver in the case of R. v. Kapp et al, which Mr. Harvey described as involving a "runaway fishery."
      >
      > [9] Mr. Redekopp's evidence covered the period from 1992 to 2002. He described cuts in the budget for enforcement in his area, including substantial reductions in patrols of the native fishery, resulting in an increase in the illegal sales of salmon. He stated the monitoring of the catch was both sporadic and unreliable. In terms of enforcement, Fishery Officers were forbidden to lay charges without first obtaining permission from their headquarters and from the Department of Justice, and often their requests went unanswered. Portions of the Pearse-Larkin report on the 1992 fishery were put to him. He agreed with the following excerpt, and added that the situation persisted to the present:
      >
      > Enforcement was therefore weak and Fishery Officers felt powerless, frustrated by an apparent lack of support from their superiors. They also say they were harassed by some native leaders.
      > He described the morale of Fishery Officers in 2002 as "at an all time low." Referring to the report, he said:
      >
      > It's -- it takes me back 10 years ago, and I look at what we were dealing with this year and our inability to address large scale poaching on the Fraser River, and I realize that this has all been documented for years in many reports and we're no further ahead, and it's hard as officers to hold your head high when the community, all stakeholders and the public living in the communities look at you and my area of responsibility and say, "Why aren't you there?" So it is difficult.
      > Mr. Redekopp was referred to a portion of the report about "agreements [that] provide for native guardians to assist with the surveillance of the fisheries in some enforcement functions, excluding the laying of charges", and the findings that "... some guardians were fishermen themselves and therefore had an obvious conflict of interest", and "... guardians were often stationed where they were expected to enforce regulations against family members and relatives." He indicated the same problems persist.
      >
      > [10] In R. v. Kapp et al, reference was also made to the 1995 Royal Commission into the Fraser sockeye fishery in 1994. The commission was headed by John Fraser, the former Minister of Fisheries. Mr. Fraser found the level of enforcement capacity to be "grossly inadequate in 1994", despite Dr. Pearse's recommendation two years earlier that it be increased. Mr. Redekopp's evidence was this, as it appears at p.47 of the transcript of October 16, 2002:
      >
      > Q ... Well, adequate enforcement capacity representing a significant deterrent to illegal fishing was not established in 1995, was it?
      > A No
      > Q Or since?
      > A No, and what I've found since that time period is when we don't -- when we do not have patrols out to create a deterrent level, it doesn't have to be that we have patrols out every night, but there has to be the authority provided to have a patrol out to create some deterrence. In the absence of deterrence, as observed this year, the escalation of poaching increased rapidly.
      > The following passage from Mr. Fraser's Royal Commission report was then read to Mr. Redekopp:
      >
      > Further, the increasing market value of all types of fisheries has resulted in similar enforcement issues prevailing throughout British Columbia. If permitted to continue, the attitudinal anarchy reflected in many user groups during 1994, will sooner or later destroy the fishery. [emphasis added]
      > He was asked, "Would you agree with that?" and answered, "Yes I do."
      >
      > [11] Thomas Forge, one of the defendants, gave evidence. His catch, on August 20, 2002, was 15 to 20 sockeye. Among other things, he was asked about information he and his colleagues were receiving about the quantity of sockeye that were being caught in the ten days leading up to the first protest fishery on August 20th. He said:
      >
      > Plus we had daily evidence from the food fish vessels that are coming and going into the Discovery Harbour down here [in Campbell River] and into Quathiaski Cove [on Quadra Island, about 2 km from Campbell River across Discovery Passage], they were catching -- they were catching enormous amounts of fish.
      > The food fish vessels, lest there be any misunderstanding, were the fishing boats operated by aboriginals.
      >
      > ANALYSIS
      >
      > [12] The Terms of Union by which British Columbia joined Canada in 1871 prescribe that "Canada will assume and defray the charges for the ... protection and encouragement of fisheries." The Supreme Court of Canada unanimously decided in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at p. 25, that:
      >
      > Canada's fisheries are a "common property resource", belonging to all the people of Canada. Under the Fisheries Act, it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest.
      > The court did not say the Minister can manage the fishery so as to benefit one group at the expense of all others. Acknowledging the constitutional right of aboriginals to rank ahead of other Canadians when fishing for food, social and ceremonial purposes, nevertheless on the undisputed facts of this case an objective observer can reasonably conclude that the government of Canada, in the person of the Minister of Fisheries and Oceans, has intentionally refused to provide the means and instructions to enforce the rules relating to the Fraser River sockeye Indian food and pilot commercial fisheries. The political masters of the enforcement section of the DFO have prevented Fishery Officers from doing the very job for which they were hired and trained, destroying their morale in the process. The plea of budgetary constraints emerges from the evidence, but the objective observer might be forgiven a degree of scepticism in light of the fact that the DFO managed to muster men, e
      !
      quipment and aircraft to investigate and prosecute these non-aboriginal defendants who had the temerity to make their case publicly.
      >
      > CONCLUSION
      >
      > [13] The result of what some might describe as the DFO's policy of political correctness, but what I choose to call a lack of courage to carry out its mandate as defined by our highest court, is the loss of its moral authority. The issue here is whether acts of civil disobedience should be punished when the civil authority, through its own policies, action and inaction, has lost the right to demand the respect of the public. This is not a matter requiring proof of a direct causal link between the Aboriginal Fishing Strategy and the fishing closure in question. Nor is it a matter of people who fish illegally avoiding punishment if they can show, after the fact, that the DFO could have opened the fishery without harm to the fish stocks - such is not a proper decision for the court. At the end of the day, it comes down to a matter of fairness and the perception of fairness. Unquestionably on the facts of this case, the DFO has not acted in an even-handed way toward all commer
      !
      cial sockeye fishermen. It cannot now be heard to seek the punishment of these accused men. Nor would the public interest be served by doing so. Indeed, the administration of justice would be brought into disrepute by convicting the defendants, as that would make the court complicit with the DFO in benefiting Indians over others, and entitle the public to view the court as the handmaiden of the Minister of Fisheries. On the principles set out in the case of R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.) and R. v. Bigg (unreported), January 7, 1994, (B.C.P.C., North Vancouver Registry no. 24993), I am satisfied that the defendants are entitled to absolute discharges, and there will be orders accordingly.
      >
      >
      >
      > _________________________
      >
      > B. Saunderson, P.C.J.
      >
      > -----Original Message-----
      > From: Michael (Mickey) Posluns, Ph.D. [mailto:mposluns@...]
      > Sent: July 29, 2003 11:47 PM
      > To: First Nations Relations and Public Policy; NATIVE_DISCUSS@...
      > Subject: R. v. Kapp et al - Reasons for Judgment
      >
      > Friends,
      >
      > R. v. Kapp is a decision of the provincial court of B.C. that
      > addresses a constitutional questional regarding the Aboriginal
      > Fishery on the coastal waters of B.C. I thought you might be
      > interested either in the Aboriginal fishery issue or in the
      > constitutional question.
      >
      > Enjoy,
      >
      > mp
      >
      > http://www.provincialcourt.bc.ca/judgments/pc/2003/02/p03_0279.htm
      >
      > --
      > Michael (Mickey) Posluns, Ph.D.,
      > The Still Waters Group,
      > Parliamentary Relations & Legislative History
      >
      > Daytime: 416 995-8613
      > Evening: 416 656-8613
      > Fax: 416 656-2715
      >
      > 36 Lauder Avenue,
      > Toronto, Ontario,
      > M6H 3E3

      --
      Michael (Mickey) Posluns, Ph.D.,
      The Still Waters Group,
      Parliamentary Relations & Legislative History

      Daytime: 416 995-8613
      Evening: 416 656-8613
      Fax: 416 656-2715

      36 Lauder Avenue,
      Toronto, Ontario,
      M6H 3E3


      "Even war seldom shows as large a percentage of fatalities as does the education we have imposed upon our Indian wards," Dr. P.H. Bryce, Chief Medical Officer, Indian Affairs Branch, Saturday Night, November 23, 1907.

      "How long will you judge unjustly, and show partiality toward the wicked? Do justice to the poor and fatherless, deal righteously with the afflicted and destitute. Rescue the poor and needy; save them from the hand of the wicked." (A Psalm of Asaph, The Psalm for the Third Day.)

      How can we be sure that the unexamined life is not worth living?
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