Bad faith, beads and trinkets negotiations by DFO obstructs court-affirmed fishery, says First Nations

Friday, August 27th, 2021 3:09pm


Image Caption

Skipper Harvey Robinson holds up a chinook and the Taaqwiaak Fishery Plan. Photo by Doris Robinson.


“It's just frustrating, very maddening, you know, that this is how DFO always operates. We've never had a really good fisheries minister response to the work that we're doing.” — Kekinusuqs, Dr. Judith Sayers, president of the Nuu-chah-nulth Tribal Council
By Odette Auger
Local Journalism Initiative Reporter

The lack of good faith negotiations by Fisheries and Oceans Canada in its dealing with five First Nations on the West Coast could result in the criminalization of Nuu-chah-nulth fishers who exercise their court-affirmed right to a commercial fishery, asserts First Nations leadership.

“The federal department of Fisheries and Oceans (DFO) continues to stonewall negotiations and acts as if it is above the law,” reads an Aug. 24 press release from the five nations impacted—Ahousaht, Hesquiaht, Ehattesaht/Chinehkint, Mowachaht/Muchalaht and Tla-o-qui-aht.

The nations have said they will fish according to their own fishing plans—pitting Nuu-chah-nulth fishers against DFO officers patrolling Nuu-chah-nulth waters—because DFO hasn’t come to the table to negotiate a plan for the season.

“The Canadian government must stop criminalizing First Nations when they are exercising inherent, treaty, and court-affirmed rights,” said Kekinusuqs, Dr. Judith Sayers, president of the Nuu-chah-nulth Tribal Council.

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Devin Robinson was fishing with his father on his brother’s boat when they learned that DFO had threatened buyers with fines for dealing with the Nuu-chah-nulth fishery thereby blocking the sale of their fish. Photo by Doris Robinson.

“What is wrong with a government that fights against the people who want to stand on their own two feet? Has anybody ever realized that’s what’s actually happening?” said Wickaninnish, Cliff Atleo, Ahousaht First Nation’s lead fisheries negotiator and spokesperson for the T’aaq-wiihak fishery.

The five nations work together to implement their right to a commercial fishery under the name T’aaq-wiihak. They want Canada to demonstrate a commitment to Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Act, which received Royal Assent June 21, with respect to their commercial fishery.  T’aaq-wiihak nations want Canada’s government to prove that the intent of the legislation is more than just political lip service.

On April 19, after decades in the courts that reached to the highest levels, it was affirmed that DFO had been infringing on Nuu-chah-nulth commercial fishing rights. The decision came 11 years after an original court decision that affirmed the Nuu-chah-nulth Nations had proved their right to that commercial fishery.

DFO has said they are collaborating with the five nations and reviewing the nations’ fisheries plans, but First Nations leaders insist that there has been no such collaboration in the months since the April 19 court decision.

Collaborating doesn’t mean consulting after decisions have been made, said Kekinusuqs.

“Their idea of consulting really is to say, ‘this is your allocation for the year.’ Not even talk to us. Just this is the allocation and you have to live with it. That's not consultation or to ask what we think? Of course, we tell them what we think, and they don't change it. That's kind of the way they do business.”

Collaborating means working together towards something, Kekinusuqs said, adding the nations in their dealings with DFO have leaned into the articles of UNDRIP for years and, particularly, the element of free, prior and informed consent. Kekinusuqs says the Nuu-chah-nulth have never given consent to an allocation from DFO.

Bad faith negotiations have certain hallmarks, reads a Harvard Law School article, including the deliberate tactic of responding slowly and dragging out the negotiation process.

By delaying implementation of a court-order to negotiate, DFO creates a situation where they can call any T’aaq-wiihak fishery “unauthorized,” Wickaninnish says.

“Canada refuses to come to the table. If the federal government would meet us at the negotiating tables as directed by their own highest courts, our fisheries would no longer be ‘unauthorized’ in the eyes of the DFO,” said Wickaninnish.

“They are ignoring the direction of their own courts, and now DFO is disrespecting the inherent authority of our ha’wiih (hereditary leadership). We don’t have a formal agreement with the government of Canada,” said Wickaninnish. “We are our own nations with our own sovereignty. And our leadership is telling us to go out and fish.”

On Aug. 5, the Ha’wiih of the five nations issued a declaration to authorize designated members to exercise the court-affirmed fishing right to harvest in line with allocations as set out in the nations’ fisheries plans. 

“DFO has been threatening fish buyers with charges if they work with our fishers,” said Wickaninnish. 

The press release also alleges that DFO threatened a third-party monitoring company with charges if it provided landing slips to the fishers.

Racheal Weymer, director of Fisheries at Ecotrust Canada, the monitoring service provider for the five nations fishery, says DFO officers warned the organization on Aug. 18 that from that point onward issuing landing slips for the rights assertion fishery would be an illegal act.

“It's not like there's a lot of buyers,” explained Wickaninnish. “But every one of them were visited by DFO, threatening them with a quarter million dollar fine if they bought our fish. A week before we had even caught our DFO sanctioned quota yet, they were already threatening the buyers.”

Kekinusuqs said if charges were laid, that would start the whole court case all over again.

Another hallmark of bad faith negotiation is not showing up with a mandate from the decision makers.

“Minister (Bernadette) Jordan never personally handles negotiations. We had that call with her in July and everything we asked her about—whether it was a multi-year closure of the herring, the PSSI (Pacific Salmon Strategy Initiative), and our commercial access to the fishery, she just listened and said, ‘Well, I'm going to have to talk to my staff about it’,” said Kekinusuqs.

“She wouldn't answer anything. As the fisheries minister she should know these issues backwards and forwards and have an opinion, but she didn't.”

Hereditary leadership meets with DFO every three months and they never send any high level officials to the meeting. Kekinusuqs says DFO tells the hereditary leaders it hears them and will take their concerns or needs to upper management, “but by then, you know, the fishing season is over. We've lost the opportunity. It's just frustrating, very maddening, you know, that this is how DFO always operates. We've never had a really good fisheries minister response to the work that we're doing.”

“They never provide us with decision makers that could actually answer our questions.”

Canada has not taken meaningful steps towards a collaborative negotiation process, instead choosing to run out the clock until after the 2021 election, notes the press release.

“This should be an election issue, the access to the fishery. It's happening coast to coast,” says Kekinusuqs.

The struggle of exercising fishing rights is not isolated to the five nations. “DFO recently arrested Chief Mike Sack of the Sipekne’katik First Nation, part of the Mi’kmaq, for being ‘party to the offence of (an) unauthorized fishery’,” reads the T’aaq-wiihak press release.

Wickaninnish says the DFO strategy is an example of systemic racism.

“When the commercial guys in Mi’kmaq country go out fishing there's 600,000 traps and DFO is crying about 3- 400 traps being put out by one nation because they've got a treaty right? That’s just racist.” 

Wickaninnish shared with the teachings passed from his father, Aw-op-waiik, Mark Atleo, in 1997 when he was 77.

“In the last seven years of his life, he spoke of the hereditary system. ‘Mankind didn't create that system. It was a system gifted to us by the Creator for the purpose of looking after the ocean, land, resources and people all as one. Not separately. All as one.’ And so our governance system was a sacred system and it couldn't go wrong. For many thousands of years, all of the Indigenous people’s lives were rich. Not just our nation, but all Indigenous peoples of North and South America.”

Kekinusuqs said she’s suspect of politicians and their promises of reconciliation. 

“It just shows people that they don't live up to their promises that they've been making all along. That First Nations are the most important relationship that they have. That they want to change their relationship. All of those kinds of things that should've changed, have not. We're just as (badly off) as we were 18 years ago when we commenced this whole court case,” she said.

“As far as the election goes, if they wanted to have favour or First Nations’ support, they would have been implementing these decisions immediately.”

Another hallmark of bad faith negotiation is the combination of extreme demands with small concessions.

For Nuu-chah-nulth Nations, an example of an extreme demand is DFO authorizing a herring fishery when Nuu-chah-nulth nations said herring conservation took priority over commercial fishing.

“We said ‘no way’, because we know if we fish this there won't be any herring in the future. Which has happened,” said Kekinusuqs.

And, Nuu-chah-nulth fishers are familiar with the small concessions. “They did offer a small amount, but not enough for a reasonable livelihood as the courts said. So they might do small amounts– gestures, I would say. Beads and trinkets.”

The T’aaq-wiihak fishermen get 10,000 pieces they have to split among the five nations.

“They give lots of allocations to the recreation and commercial fishery who only have a privilege in fishing, not a right, like we do.”

When Nuu-chah-nulth fishers announced they were going to fish beyond their quota of 10,000 pieces, DFO gave the other fisheries in the area more allocation, Wickaninnish says.

“That's how determined they are for us not to get a decent share.”

“The whole system is rigged against us,” said Wickaninnish. “Because we're Indigenous, coast to coast to coast. ‘Keep ‘em down. Keep their foot on our throat. Don't dare lift it up. Don't dare to provide any kind of Indigenous viewpoint on what reconciliation is.’ In other words, just keep them down at all costs. But we're going to carry on the fight. We're not going to stop our fight.”

“When you think about it, seriously, their intention is to get rid of us. We're still here, and there's a reason for that.”

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.