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(David Parkins for The Globe and Mail)
(David Parkins for The Globe and Mail)


Fight over fishing rights sees clash between native and commercial claims Add to ...

The fight for fishing rights in B.C. waters is at its most ferocious when the salmon are scarce. This fall, hungry grizzlies are having to get in line behind the gillnetters, sports fishermen and native communities getting their elbows up, once again, over the meagre bounty returning to coastal waters.

Against a backdrop of the collapse of the sockeye salmon run, the British Columbia Court of Appeal this week is hearing a native band's claim for priority over the commercial fishery on the North Coast. The Lax Kw'alaams case could have huge implications for the fishing industry if it succeeds, but the provincial government has elected to sit on the sidelines.

The province's lawyer informed the other parties last week that B.C. would be asking the court to please excuse it, "as the province takes no position in the matters to which this hearing relates."

It was a disappointing decision to stakeholders who were counting on B.C. to continue to backstop the federal government in fighting the Lax Kw'alaams in court. It may be disappointing to Ottawa, too: It is at least the second time this year that the province has left federal lawyers standing alone at the eleventh hour in a high-stakes native case.

It happened last March, while lawyers were preparing final arguments in Ahousaht v. Canada and B.C. Ottawa was furious, calling it an "unprecedented, unexpected and last-minute decision" that raised doubts about whether the province could be counted on to show up in court in other aboriginal rights cases.

In Ahousaht, which happens to be another native fishing rights case, the province was upfront that it was making a gesture of reconciliation with natives.

But in Lax Kw'alaams, the province is just being pragmatic, according to George Abbott, Minister for Aboriginal Relations and Reconciliation.

B.C. has nothing to do with federal fisheries matters, Mr. Abbott said in an interview. "The federal government, I'm sure, would like to see us there defending their interest. But we have many battles to fight," he said.

Implicit in the decision, however, is a message to Ottawa that B.C. will not be there in aboriginal rights cases if it doesn't absolutely have to be. It's a subtle turn, perhaps deliberately underplayed because of Premier Gordon Campbell's history on the native fishing issue.

In 1997, then in opposition, he called on the government of the day to "stop this aboriginal-only fishing and start managing an all-Canadian fishery for all Canadians." As Premier, in 2001, he stated that he opposed "a separate, constitutionally entrenched, commercial fishery."

Today, as Mr. Campbell admires the stunning new "leadership desk" installed in his office by native artist Arthur Vickers, he has reshaped his image into that of an advocate for aboriginal title pursuing a "New Relationship" with first nations.

Mr. Abbott did not want to say if the Premier still believes native-only fisheries are "morally and ethically" wrong.

"The B.C. government has moved beyond that position," he said. But to hear him tell it, that's not because of any epiphany about how inflammatory the position is seen to be by native communities. Rather, it's because the courts have approved limited native-only fisheries. "The constitutional and legal goalposts have moved," he said.

Commercial fisherman Phil Eidsvik of the B.C. Fisheries Survival Coalition called the province's non-response to the Lax Kw'alaams case "pathetic." He used stronger language in speaking of his former ally, Mr. Campbell. "Campbell lied to a whole industry, it's one reason one of us former Liberals sat out the election," he said.

Bill Otway of the Sportsfishing Defence Alliance provoked an angry reaction from Mr. Abbott this week when he argued the province has sold out the fishery by sitting out the case. He rejects the idea that B.C. could not participate.

"It's a critical case, whether British Columbians will have any rights or ownership of their natural resources. We're talking about a multibillion-dollar industry at stake and the province is saying, 'We don't care.'"

There are few native leaders in B.C. who have spent more time with the Premier in recent years than Grand Chief Ed John of the First Nations Summit. He doesn't know if the province is sending a message by pulling out of Lax Kw'alaams because he doesn't know whether the Premier still opposes a separate, constitutionally entrenched commercial fishery.

But he said both B.C. and Ottawa will have to get over that opposition in order to settle land claims.

This summer, Chief John travelled the province to talk to native communities about land claims. What he heard about, everywhere, was fish. He recalled a native elder who told him she was worried about what her family would eat this winter. "She had 11 salmon she had to put up in her smokehouse that she bought from someone for $7 each. That was it - there was no other salmon for the community."

The stage is set for a renewed clash on B.C.'s rivers, but Mr. Campbell's government seems perfectly content, this time, to remain on shore.

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