The Cohen Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River was urged by federal and provincial government lawyers Tuesday not to wade too deeply into the complex and controversial issue of native fishing rights.
But British Columbia Supreme Court Justice Bruce Cohen, who is heading the judicial inquiry ordered last year by Prime Minister Stephen Harper, was also told by aboriginal groups that he can't ignore the topic, even though an examination of native rights falls outside his mandate.
The issue was raised when lawyers for participants in the hearings were asked to respond to a paper written by commission counsel, which provided an overview of aboriginal fishing rights.
"This commission has no mandate to inquire into aboriginal rights . . .[and it is]not advisable for you as a commission to make any rulings [on the issue]" said Boris Tyzuk, speaking for the provincial government.
Mr. Tyzuk said he has been involved in negotiations on several treaties in B.C. and the fishing components of those treaties "were always the toughest" things to resolve.
He said the fishing section of the Nisga'a treaty, for example, went through 57 drafts before the final wording was settled on.
Mr. Tyzuk used that example to caution Judge Cohen from getting entangled in an issue that could consume more time than the commission has at its disposal.
"This inquiry is not the appropriate forum," he said.
Mark East, speaking for the federal government, also told Judge Cohen to use caution in dealing with the subject, saying aboriginal rights are "dynamic, complex and evolving . . .and also controversial."
However, Robert Janes, representing a coalition of Coast Salish bands, said Judge Cohen must address the topic because part of his mandate is to make recommendations on the future management of the Department of Fisheries and Oceans.
And DFO, he said, has to deal with the interests of the more than 90 bands that live and fish along the Fraser River.
"DFO has to come to grips with the legal right of the aboriginal fishery," Mr. Janes said.
He said currently DFO authorizes aboriginal fisheries, but does not recognize legal right of aboriginals to fish without federal approval.
Mr. Janes said there is often an atmosphere of "hostility and conflict" on the river between DFO and native communities that needs to be resolved.
"The reason you have to address these issues ... is to encourage DFO ... to take on the process of recognizing aboriginal rights [to fish are a legal right]" he said.
Tim Dickson, speaking for the Sto:lo Tribal Council and the Cheam Indian Band, said his clients have been relying on sockeye harvests on the Fraser River for thousands of years.
"When Europeans arrived the Sto:lo were here, fishing in the river for sockeye," he said. "The Sto:lo lived off the fish . . . they had those [fishing]rights then and they continue to exist today," said Mr. Dickson.
He said the Sto:lo and other bands on the Fraser want their legal right to fish recognized so they can begin to share in the management of salmon stocks.
"They want to manage the sockeye through a truly collaborative process. They don't want to be told where and how they can fish by DFO," he said.
But Keith Lowes, representing the BC Wildlife Federation and BC Federation of Drift Fishers, told Judge Cohen the right to fish is something that belongs to all citizens equally.
He urged the commissioner not to think in terms of aboriginal versus non-aboriginal rights.
"The public fishery is inclusive of all," he said. "To put it bluntly, there's no such thing as a non-aboriginal fishery."
The Cohen commission is expected to continue hearings in Vancouver through December.Report Typo/Error