Feature Story Thursday June 30, 2016
The Million Dollar Fish
Lengthy court battle could run costs into hundreds of thousands of taxpayer dollars
Sto:lo elder and Medicine Man Eddie Gardner (centre) leads the traditional songs and drumming outside the Courthouse June 14. Below, Lawyer Nicole Schabus, Syd Douglas (C) and Chief Robert Gladstone.
t's turning out to be an expensive fish for Chief Robert Gladstone of Shxwha:y Village, and former Chief Sydney Douglas of Cheam who are part of the Pil'alt tribe, along with the Squiala and Kwaw'Kwaw'Apilt, and Canadian taxpayers who will ultimately foot the bill to bring charges against the two men for catching one fish without a permit for their salmon ceremony.
According to Cheam Chief Ernie Crey, it could cost hundreds of thousands of dollars, depending on how long it takes to process Department of Fisheries and Oceans (DFO) charges against Gladstone and Douglas for obstruction involving catching a single fish without a permit.
Crey is adamant in saying that the DFO has been operating in arbitrary ways considering at the same time they were busting Gladstone and Douglas, sport fishers were out in the ocean catching the same fish that were headed up the Fraser River.
"They feel they are in charge, they feel they can exercise their authority at will, where and when they want, against whom they want. And it's the wrong approach given the decision in what is commonly known as the "Sparrow Decision" which says that DFO has to respect Native rights," Crey said.
Crey was a senior DFO official in the '80s through to the early '90s based out of New Westminster and had the job of managing all the fisheries from the mouth of the Fraser River all the way to the Yukon. Given that, he has some inside knowledge about how the system works.
"The old school in my generation back when I was in the Department was: Get out there, be tough with all fisherman in all fisheries, but especially in the Aboriginal one," said Crey.
Gladstone says there were actually four or more Aboriginal boats out that day and doesn't know why he's the one facing charges.
"I don't know how they singled me out, or determined how I would be the one to be charged. It's beyond me and I've never asked them, nor have they explained," he said.
"When we tried to do our religious ceremonies, which is the bedrock, the fundamental bedrock on which our culture and society is built, we're denied the right to go out and get a fish," said Gladstone.
Former Chief Sydney Douglas speaks at the courthouse. Below, Eddie Gardner and Ron Moore drum and sing traditional Sto:lo songs.
Gladstone and Douglas' lawyer, Nicole Schabus, told the crowd who were drumming and singing at the courthouse steps, that the judge scheduled 2 days of trial for Gladstone and how they would be building a constitutional defense.
"Part of what we are arguing is that they didn't obstruct anybody, that they were just exercising their authority," said Schabus, adding that it would be the same approach to Gladstone's defense.
"Ever since we had the agreement for sales, they put clauses in those agreements that hinders our rights. It cuts our rights off while we're under that signature," explained Douglas.
The Statute of Limitations says parties have 2 years to come up with charges, however Schabus said her clients had charges laid against them long past the two-year threshold.
The following is The Voice's conversations with Cheam Chief Ernie Crey, and Chief Robert Gladstone followed by DFO's response to some basic questions regarding the DFO allegations.
Cheam Chief Ernie Crey
Q. What's going on here, Ernie?
A. There are two individuals: Former Chief Sidney Douglas of Cheam and the current Chief of Shxwha:y Village Robert Gladstone have been charged with fishing offences. In particular, Chief Robert Gladstone was charged during a ceremonial fishery.
We applied for our licence to do the ceremonial fishery, we wanted one fish for the purposes of the ceremony. DFO refused to issue the licence and then appeared on the river and brought charges against Chief Robert Gladstone while he was in the midst of the ceremonial fishery.
And so, because the way the law is laid out in Canada, is conservation of the salmon stocks first, and the first priority after conservation is the aboriginal fishery for food, social or ceremonial purposes.
Meanwhile, DFO had authorized fisheries that were intercepting Fraser River Chinook salmon, out in the saltchuk, for sport fishers, the very fish that were coming here. So notwithstanding our conservational priority, is they were giving preference of treatment to the sport fishery out in the saltchuk. Not here in the river. There wasn't a sport fishery here in the river, but the same fish that were making their way to the Fraser River were being caught by anglers out in the saltchuk precisely at the same time they were denying us an opportunity to catch a single Chinook salmon for ceremony.
That's what's at play here. So now, they put in a few appearances at the Chilliwack court and today they're going to have a trial date set — both Chief Robert Gladstone and former Chief Sidney Douglas.
Q. Was there some sort of permit that they needed and didn't have?
A. Because they wouldn't issue a licence, even though we requested one, it's because they didn't issue that licence, they didn't authorize that fishery for that single salmon. That's why they've (DFO) brought these charges. In fact, he didn't even catch the fish. Chief Robert Gladstone was just out on the water.
Q. So why are they charging him then?
A. Well, that's for them (DFO) to explain to the court, to the crown, why did they bring charges against Chief Gladstone.
Q. Not the person who caught the fish?
A. I don't even know if they know who caught it.
What's really in play here is DFO gets to be as arbitrary in the management of our fishery as they want. Before the Sparrow Decision in May of 1990, DFO could be as arbitrary in the management of our fisheries as they wanted to be.
Q. So what does that mean, manipulation of the law?
A. It just means that they feel they are in charge, they feel they can exercise their authority at will, where and when they want, against whom they want. And it's the wrong approach given the decision in what is commonly known as the "Sparrow Decision" which says that DFO cannot be arbitrary. They need to consult with the First Nations over their fishery. They need to come to annual fishing arrangements with the First Nations. They can't just be arbitrary. But they want to continue on in that vein, very much like they were before the Sparrow Decision of May of 1990.
Q. What could the result of this be, what could he be charged with?
Fisheries offences these days are criminal charges. So they can result in heavy fines, or jail time, or both.
Q. Do you think in this case, they'd give him jail for a fish?
A. It's hard to say what the crown will demand on behalf of their client which is the Department of Fisheries and Oceans.
Q. So the Chief is representing the Nation and that's why he's facing charges?
A. He was fishing with the Pil'alt Tribe which is made up of three First Nations: the Cheam; the Squiala and Kwaw'Kwaw'Apilt. Robert himself is from the Chilliwack Tribe, but he decided he would fish with us, with the Pil'alt. That's why he was out on the water and for whatever reason DFO had in mind at the time, they chose to lay charges against Chief Robert Gladstone.
Q. When did this take place?
A. This offence that DFO alleges took place last Spring in March. So you can see these offences take a tremendous amount of time before they even get into the court. Then there's the procedural wrangling and then eventually a trial date is set. If people want to go in that direction and they're not prepared to enter a plea, then this sort of thing could take years and cost the First Nations, hundreds of thousands of dollars depending how far it goes in the courts, and it can cost the Canadian taxpayers — because of decisions made by DFO and the Crown — it could cost them hundreds of thousands, if not millions of dollars to enforce their regulations.
In this instance, I don't see the logic of it. I don't see a lot of public support for someone like Robert Gladstone, who simply wanted to catch one fish for a ceremony. I don't see where the public would endorse that kind of approach in the management of Canada's fisheries.
Q. How much public support do you have?
A. There's a tremendous amount of support for the Aboriginal community in the fisheries when it comes to food, social and ceremonial fisheries.
There have been public surveys done over the past 5 years to show amongst British Columbians, the strong support for Aboriginal people having a fishery for food, social and ceremonial purposes. So we know there's strong support in the public.
Q. Do you think DFO is just trying to make a point here, and if so, what is the point?
A. Obedience. They want our obedience and they want it when they demand it of us. They forget their obligation was to talk to us about these things, to consult with us, and engage us. There's discussion about whether the fishery should proceed or not and they need to defend their position. But, they want to pretend that this is before May of 1990 when they were able to say "We're telling you what to do because that's the mood we're in, that's what we want to do. We don't care if you object or not, we can be as arbitrary as we want and no one has to like it."
They want to take us back to that era. The courts have moved well past that and have told them 'No, it's different. You need to consult with the Aboriginal people. You need to just defend why you don't want them fishing and they better be compelling arguments or then these charges under the fish accord are out the door.'
Q. How optimistic are you?
A. I'm optimistic about the outcome. We have a new Prime Minister in Ottawa. His presence there gives us some measure of hope, that he's an individual. He himself can be arbitrary about these things, but we think his leanings, and that of his government, is towards respecting Aboriginal and treaty rights across Canada and here in British Columbia. But he personally can intervene in all these encounters between what officials do and the First Nations.
Sometimes they have to play their way in the courts. But he's made it very clear that he supports Aboriginal and treaty rights. His government has even adopted the United Nations declarations on the rights of indigenous peoples and they plan to make it law here in Canada. So the signals are very, very strong.
I hope that somebody at some point, intervenes in this particular case: "You know what? Let's call it a day."
This was a ceremony. The Aboriginal peoples were looking for one fish, that is the Pil'alt people, and their friend Chief Robert Gladstone.
There's a better way to handle these things. We need to start doing it. Like a rational, calm way to sort out a salmon management bridge with the First Nations and not be the arbitrary regulator and enforcer of how Aboriginal Fisheries will be carried on, in this case here on the lower Fraser River.
Q. Do you think Trudeau is aware of what's going on here?
A. We've sent him a letter. Whether he actually reads the letter or not, the people around him will brief him. They will read our letter and the appointed Fisheries Minister will be well aware of it. He'll be briefed on it. He'll also be briefed by environmental officials. So our letter will bring us to laying out our position, and his own staff in the public service, mainly the Department of Fisheries and Oceans personnel here in the Pacific Region will brief the cabinet.
Q. When do you think that will happen?
A. I expect that it's probably happening now. The facts of this case will be known to the Prime Minister and the Minister of Fisheries and Oceans I would say probably within weeks.
Q. It's unbelievable.
A. I know. And you know what? I used to be a senior official in the Department of Fisheries in the '80s through to the early '90s based out of New Westminster and we had the job of managing all the fisheries from the mouth of the Fraser River all the way to the Yukon.
Q. So you have some inside knowledge about how the system works?
A. I know how the system works. Some of the same personalities that are there now are my age and they're retiring, people in the Baby Boom generation, but now we have a whole new contingent of fisheries employees who are far younger than me by thirty years, and so now they're going to have to wrestle with these sometimes complex issues where law is concerned around the management of Indian fisheries.
My only hope is they take a different approach than their retiring managers in the civil service, or in the Department. It remains to be seen if they will. They're some signs that there are changes of attitude. But the old school in my generation back when I was in the Department was: 'Get out there, be tough with all fisherman in all fisheries, but especially in the Aboriginal one.'
Q. That was the attitude?
A. That was the attitude. That means in the sport and commercial fisheries, but mostly in the Aboriginal Fishery, especially here in the lower Fraser River. The Department knows what it's up against when it comes to the Sto:lo people of which the Pil'alts are a part, the strongest resistance to the arbitrary approach to managing the Aboriginal Fisheries. The strongest resistance in British Columbia has come from the Sto:lo people.
In my generation, they considered themselves, quite frankly, to be at war with us. A quiet fish war with us. It's not over yet. it's a war and they're determined that their will, will be imposed on us come hell or high water. You can see it in their approach to these kinds of things.
'Just because we say no to you, we don't give a damn what you think, we don't give a damn at how compelling a case you make for fisheries, we'll say no and we'll send four or five fisheries boats out with four or five fisheries officers per boat to shut you down, and if you resist, we'll arrest all of you, we'll put you in cuffs, we'll throw you in jail.'
Q. So you guys actually have to set this precedent, right?
A. Yeah. This is not to say that we feel, regardless of the strength of the health of the fish stocks that we should fish when we want, anytime, anywhere on the lower Fraser River. One of our principles argued is the conservation of salmon stocks, the salmon runs. They feed us. They support an economy here in the First Nations community, however modest it might be, but we also know behind us there are many, many other First Nations that want to fish too and to feed themselves, children, families and the elders.
So we understand the fish pass us and reach the other First Nations, but ultimately we understand that the fish need to reach the spawning beds, that the runs are replenishing so that there's fish, 4 years, 8 years and 12 years hence. We know that.
The Department of Fisheries and Oceans would like Canadians to think that we don't understand these elementary facts about salmon. But we do. We've lived with salmon here on the Fraser River since the last ice age. We know these fish better than anyone.
The folks here are supporters. Some of them are from the local First Nations here. We have our supporters here and they're out today.
Chief Robert Gladstone
Q. Can you summate what's going on here?
The bottom line that it comes down to is that Native people are supposed to be second only to conservation. What does that mean? It means that once the escapement of the fish have gone through that we have the right to be the first to be able to access the fish.
Not only is that not the case, or it has not been the case, but even when we tried to do our religious ceremonies, which is the bedrock, the fundamental bedrock on which our culture and society is built, we're denied the right to go out and get a fish.
This whole process started because we wanted one salmon. One salmon to go out and do our religious ceremony.
There's been a lot of court cases that have come about that have said that if something is fundamental to your culture for thousands of years then it's recognized in the Canadian Constitution under Section 35.
Our First Salmon ceremonies have been
going on for longer than Jesus Christ has been around. We said that
if that's not integral to a culture, then I don't know what is.
We've had conversations with DFO for the last several years and this
is a vital part of our culture. I mean like 'Why do you not
We finally told them we're going to go out, it's our right to our religious freedom and this whole thing is about our right to exercise our spiritual right and also because we're supposed to be recognized under Section 35 of the Constitution.
It's very basic, and very fundamental, but a lot of other things as you see are coming about here, but the Native people have been fighting for the right to be two-thirds of the resource, and we've come of age. We have technicians, biologists, managers. We built capacity. It is the hope and intention of our people to not only be able to access and utilize the fish, but to truly manage it utilizing modern systems like everybody else.
This whole thing has touched on a lot of core issues but it bares us from the basic right of religious freedom, and some of the very basic guarantees that were promised in the Constitution. Pre-existing Aboriginal rights.
Our rights were never purchased. They were never militarily taken and they were never legislated out of existence. I can't be more succinct than that, but that is what this all started from.
Q. Do you think DFO is making up the rules as they go along?
A. I don't think they're making up the rules as they go along, I think they made up the rules a long time ago. I think they made up the rules over 150 years ago and those just carried forward.
We have a new government in place who promised a lot of new changes, positive changes. I don't think they've trickled down through the bureaucracy yet. I think that the people at the lower levels of DFO are still following the old rules and dogma that were handed down by the Harper government. I don't think they're changing the rules as they go along, I think they've been in place a long time and just through sheer inertia, they're still continuing.
It's going to take a lot of effort on behalf of the current government the new Prime Minister to make those changes come through the system. But we have to be part of that and part of what we're doing today is saying: 'We can't wait forever. The courts have already said that we should have these rights. The rights exist but they're not being recognized beyond the DFO in the Lower Court. So, we have to work as we go.
Q. Do you think the Prime Minister is aware of what's going on here?
A. I don't know, to be honest. I know that some of the chiefs that have been around a lot longer than I, have sent letters to him. Whether it's registered on his radar or not, I don't know. We've been in contact with a former minister before he left and there were some positive signs coming out from him at the top, and again, they haven't trickled down through the bureaucracy. I think it's his wish and hope that things get better. Whether or not he can make those things happen in short order I don't know.
Q. Do you feel you're setting a precedent?
A. I hope that we are. I don't know that we are. I said this the first time we came to court:
We went fishing, not to make a political statement. We went fishing not knowing that we would be charged. We didn't know that we would be actually where we are today. We simply were doing at the time what is right and that was to go out and get a fish for a salmon ceremony. If we're setting the precedent, good, but it was borne of a real humble ideal, to do what my grandma taught me to do, what my father taught me to do, that was to do our religious ceremonial practices which is connection with our earth and our environment. Again, its been going on thousands of years, it's not something that we just started doing 6 months ago, 5 years ago, even 100 years ago.
So, we were doing something that's fundamental to our culture, a culture that is very old and predates maybe Canada.
Q. Why are you, for one, being charged here?
A. That's a good question, because there were actually four boats out that day, I believe maybe more, and I don't know why they singled me out.
Former Chief Syd Douglas is being charged for obstruction and he didn't actually do anything to obstruct, so why are they charging that, we don't know.
I don't know how they singled me out, or determined how I would be the one to be charged. It's beyond me and I've never asked them, nor have they explained.
Q. Do you mind being the one charged, representing your Nation? Do you mind being the sacrificial lamb here, so to speak?
A. No. It's like this... I come from a community where we have lots of old people who taught me the culture and we didn't just practice on Saturdays and Sundays — it's the way we live.
In this modern age, we're developing new capacities and developing modern governments and we're wanting to take our place in Canada. Those modern governments are built on administrative systems and laws just like the rest of Canada.
On the bottom of that, the foundation, is our culture. The culture is something that can never change and we must fight to maintain that integrity. The Salmon Ceremony is the bedrock of that.
When they were fighting in Quebec for a distinct society, they said if you don't have a distinct society language and culture, you can't fight to have a separate one. Well, same with the Native people. We are a distinct society and we must maintain that distinct culture, language and everything that goes with it.
I feel honoured that for some reason or another, I've been pushed to the forefront of this, but the true people that are on trial here are the Native people, I just happen to be the face on it. I'm not the real issue here. I'm happy that I can be a vehicle for it and I hope I do it proud and well.
Chief Sydney Douglas
I challenged them to sit down and work with management on a cooperative basis. We've never really had that. They say they're cooperating with us, but at the end of the day it rests in their decision. They used their agreement to tie us down.
Ever since we had the agreement for sales, they put clauses in those agreements that hinders our rights. It cuts our rights off while we're under that signature.
We've always challenged them when they come on the reserve and they're not supposed to interact with any of the band members. They're supposed to come to the band office first. Our leadership should be discussing this.
Department of Fisheries and Oceans responses to The Voice's inquiry
Q. Can you please tell me why Gladstone is being charged, what the charge against him is, and the penalty?
"Conservation is paramount in how DFO manages all fisheries. After conservation requirements, DFO provides priority to First Nations harvest opportunities for food, social and ceremonial purposes over all other users. In recent years, Fraser River Chinook stocks have experienced very poor marine survival rates, particularly Chinook returning prior to late July. Many of these Chinook stocks have fallen below replacement levels."
"To manage these serious conservation concerns DFO, in January 2015, invited all Lower Fraser First Nations Chiefs to work with the Department to design fishing plans for the area to provide opportunities for food, social and ceremonial needs, while meeting conservation requirements."
"Collaboration among all First Nations is critical to ensure conservation of fish stocks and to assess any potential impacts to other Fraser River First Nation communities. This provides all First Nations, from the mouth of the Fraser all the way to the spawning grounds in the B.C. Interior, with opportunities to fish for food, social and ceremonial uses."
"The Department encourages the Pilalt Tribe to join with other First Nations who are collaborating with DFO to plan fisheries to respond to periods of poor salmon abundance."
"As this matter is currently before the Courts, it would be inappropriate to comment in more detail on this specific case."
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