Aboriginal Fishery

As that great 20th Century philosopher Yogi Berra once famously said, “it’s starting to look like déjà vu all over again.” I’m pretty sure what he was referring to had something to do with baseball, and not fish, and specifically not the here-we-go-again issues surrounding the Aboriginal fishery in our area waters. 

Those issues should have been settled long ago, and might have been if fishery talks between the Saugeen Ojibway and the federal and provincial governments hadn’t been kept so secret for so long. Instead, the bitter controversy that plagued the Grey-Bruce area in the late 1990s, is showing signs of flaring up again based on “rumours” about what might be in the new Fishing Agreement the three sides have been cooking up behind closed doors.

“We don’t like the rumours we’re hearing about negotiations between the Ontario Government and Cape Croker and Saugeen Bands,“ Ontario Federation of Anglers and Hunters president John Ford, an Owen Sound resident, said this week in a press release headed “OFAH issues warning about MNR and Cape Croker talks.”

The Saugeen Ojibway is the joint name of the Chippewas of Nawash First Nation at Cape Croker, and the Saugeen First Nation near Southampton.

The OFAH is mainly concerned about the possibility aboriginal commercial fishermen will start setting their nets again in Owen Sound Bay and Colpoys Bay. They’ve stayed out of those bays for the last four years under the now-expired 2000 Fishing Agreement.

“While we support native fishing rights, the OFAH is absolutely opposed to altering longstanding boundaries for native commercial fishing around Bruce Peninsula,” Ford said. “Under the agreement currently being negotiated with the MNR it’s our understanding that the Chippewas of Nawash will be receiving additional commercial fishing opportunities in the area. It defies belief that the Ontario government would also give them permission to take fish from the very recreational fishery that so many clubs and volunteers have spent years rebuilding,” Ford added.

The OFAH release reveals a surprising misunderstanding of the issue. It’s not hard to understand why most area residents may not be up to speed on the subject of the aboriginal commercial fishery, including essential background information; the subject has been behind closed doors and out of the public eye for so long. And that’s a public awareness problem that someone needs to address. But the OFAH should know better, and its comments are not helpful. Somebody should have done their homework.

Everybody with a vested interest in the issue has had more than 11 years to come to grips with and adapt to the fundamental new reality. That is, the existence of an aboriginal commercial fishery with “priority” rights in area waters. The fishery was re-established as a result of the now famous – but apparently still not well understood – Fairgrieve provincial court decision of 1993. The court dismissed overfishing charges against two Nawash men and confirmed Aboriginal constitutional rights to fish commercially.

The Saugeen Ojibway successfully argued that their predecessors had never surrendered their fishing rights, and had received assurances years ago from the Crown that those rights would be protected.

The court found sport fishing groups and non-Aboriginal commercial fishers had even received favourable treatment, at the expense of Aboriginal rights. In a decision that was not appealed by the federal or provincial governments, the court ruled the Saugeen Ojibway must be granted priority over all other user groups, once “the needs of conservation” had been met.

That appeared to leave the door open for some sort of government regulation of the fishery, but with the participation of the Saugeen Ojibway in the development of a management plan that reflected their first-priority, aboriginal right. However, finding a jurisdictional balance acceptable to all three sides has apparently proven very difficult. To this day, as far as anyone knows publicly, the Ontario and Canadian governments and the Saugeen Ojibway have failed to agree on a comprehensive plan for co-management of the fishery despite a lot of meetings, at a cost we may never know.

The four-year Fishing Agreement the three sides reached in June 2000 was considered a temporary arrangement while the larger effort to come up with a long-term, co-management plan continued. As they said, “This agreement is intended to provide the means by which short term commercial fishing activities can be regulated and addressed while discussions between the parties continue towards resolving long-term cooperative fisheries management issues.”

The Saugeen Ojibway agreed to keep aboriginal nets out of Owen Sound Bay and Colpoys Bay, though they were well within the waters where the Saugeen Ojibway have a “priority” right to fish commercially. The 2000 fishing agreement did not change that. It did not set any new “boundaries” that the OFAH is now “absolutely opposed” to altering. Instead, at a time when passions were running high in the fisheries issue, the First Nations took a voluntary action to help calm things down.

The 2000 Fishing Agreement expired on Dec. 31, 2003, but was extended for another year while talks continued. It’s now known at least that a new agreement (or perhaps the long-awaited co-management plan?) is almost ready. It’s “just awaiting initialling,“ Nawash Chief Ralph Akiwenzie said earlier this month.

The Fairgrieve decision referred to Aboriginal commercial fishing rights in the waters around the Bruce Peninsula to a distance of seven miles out. The expired Fishing Agreement drew the aboriginal fishery boundary lines east almost to Cape Rich in Georgian Bay, but not as far as Meaford, and south to the Kincardine area on Lake Huron.

The fact aboriginal commercial fishing tugs are already setting their nets beyond those limits, in the Meaford area, for example, is a clear indication the aboriginal fishery territory has been extended in the new agreement. Indeed, to that extent, the new agreement is already in effect though it hasn’t been formally announced.

(The Saugeen Ojibway consider their “traditional territories” reach well out into Lake Huron and Georgian Bay as far east as Nottawasaga Bay past Collingwood, and as far south as Goderich. Last December the joint First Nations filed a lawsuit seeking Aboriginal sovereignty over those waters.)

The apparent extension of the aboriginal fishery obviously puts Meaford-based, non-aboriginal commercial fisherman John Perks, and the Ontario Ministry of Natural Resources in an awkward position. Remember, the Saugeen Ojibway have a “priority” right to fish in their traditional territories. They’re in the proverbial driver’s seat regarding the issuing, or not, of a new provincial commercial fishing licence for Perks. But the Natural Resources ministry should at least have been straight with him about what was going on, instead of leaving him in the dark about the delay in issuing him a licence for this year.

If Perks sticks to his determination to fish rather than accept a buy-out, it could lead to an interesting situation, with the Saugeen Ojibway left to decide if they’re willing to share the resource with a non-Aboriginal commercial fisherman.

Why Not? Does a “priority” right to the fishery have to exclude that possibility?

I don’t see why, if the needs of conservation and aboriginal fishermen are being met.

Originally published in The Sun Times in January 2005.

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