Victoria abrogates responsibility in native-rights cases

Victoria abrogates responsibility in native-rights cases
Native rights are a head-scratcher, but it's really difficult to understand the province withdrawing from key court cases involving the West Coast fishery.

Consider what's happened.

The Lax Kw'alaams band, about 3,000 descendants of the Coast Tsimshian tribes who live on a reserve near Prince Rupert, are mulling a Supreme Court of Canada appeal after recently losing a round in their fight for commercial fishing rights.

They claim a broad right to harvest commercially along the north coast not only salmon, but also halibut, herring and other species -- which has huge implications for the sport and commercial fishing industries.

That appears to be what the Ahousat people, who live on the west coast of Vancouver Island, managed to achieve last year in a more recent decision by the B.C. Supreme Court.

In this earlier case, the Supreme Court judge parsed the claim slightly differently and reached the opposite conclusion -- one unanimously endorsed by the appeal panel.

Justice Mary Newbury, supported by colleagues Ed Chiasson and Elizabeth Bennett, said the first nations were mistaken if they thought a sea-change in the court's way of interpreting of aboriginal rights had occurred.

Ottawa and Victoria had argued in the lower court that while the Lax Kw'alaams fished a variety of species before European contact, they traded only in the prized eulachon-- the oily, smelt-like "candle fish."

After a 125-day trial, in her 2008 judgment, Supreme Court Justice Deborah Satanove agreed with that view, saying there was "next to no evidence" the tribe traded in marine products other than fish grease.

The appeal justices supported her.

"Trade in eulachon grease was, like trade in copper, slaves and dentalium (shellfish from the ocean floor), found to be integral to 'potlatch exchange, wealth, rank, etc.' and was thus integral to the distinctive Coast Tsimshian society," Newbury wrote. "In contrast, virtually no trade or exchange took place in salmon or other fish, either for ceremonial or subsistence purposes -- they were in such abundance that trade was all but unnecessary."

Yet in spite of the importance of this case, Victoria dropped out last October when it came time to argue the appeal -- just as it had previously dropped out of the Ahousaht trial.

At the last minute last March in that case, after participating throughout, the Liberals abandoned the tag-team effort with the federal government.

In October, Supreme Court Justice Nicole Garson ruled that the Ahousaht had an aboriginal right to fish all species within their traditional territory, but they must negotiate with Ottawa and that right must be balanced with other interests.

The provincial Liberals maintain they aren't involved in these key legal actions because the fishery is a federal interest.

That's laughable.

The West Coast fishery remains a billion-dollar concern and thousands of B.C. residents -- gillnetters, sports fishermen, canners, native communities -- are all squabbling fiercely over the declining returns from collapsing stocks.

The native role is key.

Judges in these cases are wrestling with tough questions and are being asked to define the nature of the relationship between aboriginal people and government, the content of native rights and the extent of aboriginal title.

Victoria should be helping. But Premier Gordon Campbell has been long conflicted over these issues. A decade ago, he called on Ottawa to "stop this aboriginal-only fishing and start managing an all-Canadian fishery for all Canadians." Today, he trumpets a "New Relationship" with first peoples, but does a fast two-step to the sidelines when the time comes to explain what that means.

I think it's irresponsible for the province to withdraw from the constitutional discussion these cases represent. It can only cost us all in the end.