Over two thirds of all Aboriginal people comprising about half of BC's First Nations are currently involved in an ongoing treaty process. Many of the remainder have yet to legitimize it by participating at all. It is a six stage process with over forty engaged in Agreements in Principle, the fourth stage. The Sliammon Indian Band, Yale First Nation, Yekooche First Nation and the In-SHUCK-ch Nation are in the fifth stage currently negotiating Final Agreements. The Tsawassen and Maa-Nulth First Nations have reached the sixth stage of ratifying a final agreement.

To address lands and resources issues during the lengthy treaty process Interim Measures and Treaty Related Measures were introduced (about ten years ago). These measures could tie up certain lands, provide economic opportunity or otherwise foster and facilitate treaties. While providing an encouragement for First Nations to enter the treaty process these measures also ensure that the process will be a lengthy and costly exercise. The "Indian Industry" is active and prosperous.

The New Relationship document:
Many of the goals outlined in this document are praiseworthy. Only the mean spirited could oppose closing the gap in living standards between First Nations people and other British Columbians or to revitalize First Nations languages. However, possibly no other initiative has further excluded stakeholders from any involvement role in the treaty process than the "New Relationship Document".

Government to Government Agreements:
Included in The New Relationship document is the provision to "Develop new institutions or structures to negotiate Government to Government Agreements." These agreements are to be practical working arrangements that convey decision making authority and can cover a wide variety of subjects. Many of these agreements will apply to lands or resource use and revenue sharing and, in keeping with the Government to Government principle it excludes public input. Several of these have been formed regarding land use already but, unlike LRMPs, none of them signed to date have included an agreement in regards to fish and wildlife management.

That is until the Framework Agreement for Shared Decision Making Respecting Land Use and Wildlife Management between Taku River Tlingit First Nation and the Province of British Columbia was drafted. As yet unsigned due to issues raised by local community voices in Atlin a Community and Stakeholder Involvement Strategy is now being adjusted to facilitate implementation of the Framework Agreement when it gets signed off. Nowhere in this document is it suggested that the rights of hunters outside the local area are to be considered of any importance.

The Referendum:
In 2002 the BC Liberals conducted a Province wide referendum re treaties. Over 93% of the respondents supported hunting, fishing and other outdoor recreational opportunities on Crown lands to be ensured for all British Columbians. 94% wanted Parks and Protected Areas to be maintained for the enjoyment and benefit of all. Over 87% agreed that First Nations governance should be based on the Municipal model with powers delegated by Canada and the Province according to the Constitution. We must ask ourselves have we seen or are we likely to see the interests of the public upheld according to their expectations as indicated in that Referendum? If not what are we prepared to do about it?

Agreements re Wildlife Management:
Approximately a decade ago the Recreation Stewardship Panel made recommendations that the Province undertake facilitation of Regional Fish and Wildlife Advisory Committees (RFWAGs). There are a few examples of stakeholder/First Nation advisory groups having been attempted, some still exist. The Vancouver Island Region Wildlife Management Committee is one but it excludes fisheries and includes only wildlife harvesters not preservationists. However, the RFWAG is a proposed fish and wildlife management tool that could possibly be a collaborative venue for Stakeholders and First Nations if so desired. This option has virtually no future as long as Government to Government discussions re fish and wildlife management are being conducted exclusive to First Nations.

In his response of Jan. 2006 to your Native Affairs Committee upon complaining that The New Relationship undermined the purpose of the Vancouver Island Region Wildlife Management Committee then Minister of Aboriginal Relations and Reconciliation Tom Christensen stated, "I would like to clarify to all the members of the VIRWMS that The New Relationship process being undertaken by the Province and First Nations is not intended to undermine or replace existing forums and relationship building initiatives between First Nations, specific interest stakeholders and Government." Today we have a proposed Framework Agreement between BC and the Taku River Tlingit First Nation that specifically deals with a wildlife management component devoid of stakeholder input and accomplishing exactly what the Minister Christensen assured us would not happen.

This is as a direct result of Government to Government discussions which excludes your voice in an area where we have values and expertise. The fact is that while First Nations can gain control over fish and wildlife resources in this manner the resident hunters and anglers of this Province will be increasingly marginalized. If you combine this Government to Government relationship with First Nations resulting in agreements on a large scale with the interests of the Guiding Industry thrown into the mix it is conceivable that our resident anglers and hunters will be left with fish and wildlife scraps and our future generations will be wildlife photographers.

The William Decision: This trial commenced in Victoria on November 18, 2002 and ended on April 11, 2007. There were 339 days of testimony in between. BC Supreme Court Justice David Vickers concluded in a 482 page judgment that, "The Court is not able in the context of these proceedings, to make a declaration of Tsilhqot'in Aboriginal title. The Court offers the opinion that Tsilhqot'in Aboriginal title does exist inside and outside the Claim area." So Justice David Vickers thinks Aboriginal title exists but stopped short of a Court declaration saying so. That was only because of a technicality in that Federal and Provincial Governments had no opportunity to cross examine witnesses regarding boundaries.

Further, in his Reasons for Judgment he states "The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title." Can we speculate on what that means in terms of private land not being on the treaty table? Regardless, we have not heard the end of it as the Province has appealed the judgment to the BC Appeals Court within the 30 days for allowing such appeal. There were a number of other judgments resulting from this trial which apply to Provincial forestry legislation, hunting and trapping rights, wildlife harvests for ceremonial and cultural purposes, fur trade, and infringement of Aboriginal title by land use and forestry. If the judgment stands in Appeals Court, that is, "Aboriginal title land is not Crown land," it would come under Federal jurisdiction and it would mean that BC legislation governing resource and lands use, wildlife or any area of Provincial responsibility under the Constitution would be invalid and probably always was.

The Kapp case:
Although this ongoing legal drama has commercial salmon gillnet fishermen as the defendants the implications of its outcome are significant to all who harvest fish and wildlife subject to the priority right of First Nations. On or about the 20th of August 1998 a number of gillnet fishermen unlawfully fished for salmon during a closed period. A commercial opening had been announced for Aboriginals only, specifically members of the Musqueam, Burrard and Tsawassen Indian Bands. Nine fishermen were not charged until October 2002 with an additional 131 charged and awaiting disposition of this trial. Judge W.J. Kitchen after all the testimony stayed the charges stating, "I have concluded that the pilot sales fishery is offensive as being analogous to racial discrimination." And further, "The most troubling aspect of this discrimination is that it is Government sponsored." That was on July 28, 2003. The Crown appealed Kitchen's decision.

The nine Supreme Court of Canada judges heard the appeal in Regina vs. Kapp last December. Our membership, represented by he Sportsfishing Defense Alliance intervened in this appeal to ensure the Court heard the voice of resident recreational fishermen loud and clear. SDA counsel Keith Lowes prepared the arguments in our defense and made an oral submission on our behalf.

We were represented in this case for two main reasons.

1. Our association believes that every recreational fisher is equal regardless of race, creed or colour.
2. Except in the case of an Aboriginal right to fish, our association believes that the public right to fish disallows the Minister to make a special allocation or restrict access to specific waters to members of a distinct race.

Although the Kapp case arose out of a protest fishery of about 300 commercial fishing vessels it did not involve recreational fishermen. The purpose of appearing in Canada's highest court hoping to prevent race from being a factor in commercial fishing allocations and knowing that if that principle is allowed to prevail in the commercial sector then it certainly shall apply in the sports sector. Also, it is not unreasonable to foresee the same principle applied Provincially in terms of wildlife allocations. Our membership was represented there in the belief that our public lands and waters must be accessible for all Canadians to enjoy. Our fish and wildlife resources, Provincially, must be considered no less accessible.

Joining the SDA in support of these principles as interveners was the Association of Japanese Canadian Fishermen and the Atlantic Fishing Industry Alliance. In opposition were seven Aboriginal groups and five Provinces including Alberta, Saskatchewan and Ontario. The Province of British Columbia didn't even show up for the opportunity to defend the resident public right to fish. The outcome of this case is important to us and is due sometime this June.

The Tsawwassen Final Agreement:
There are several serious flaws in this Agreement. (Curiously, nowhere in the Final Agreement is the word "Treaty" used.) One is the generosity of salmon allocations for two different commercial fisheries. The Food, Social and ceremonial fishery has been replaced by a Trade and Barter fishery with twice its former allocation. The second commercial fishery is under a Harvest Agreement outside of the Final Agreement. Combined these fisheries represent .78% of the total sockeye run. This gives rise to the second oversight being that if this figure is applied on a per capita basis to all the other First Nations population who have claims on Fraser River fish it amounts to 177% of the annual allowable harvest.

Another serious flaw is the crippling management structure this Agreement creates. Federal Fisheries authority to protect fish stocks is confined to reasons only based on issues of conservation, public safety or public health. Perhaps the most disappointing fact about this Agreement is that our own Provincial Members of the Legislative Assembly are abysmally ignorant of the contents and implications of these treaties. There were three, all Liberal, MLAs that spoke in opposition. All the remainder were blissfully uninformed when the vote in the Legislature was conducted.

Current Issues:
By far our most significant concern is the lack of any apparent opportunity for direction of Government representations in their ongoing agenda of Government to Government discussions with First Nations. The public is continually ignored not that the now defunct program of Regional Advisory Committees ever resulted in tangible evidence that the public interest was important. The direction of the Referendum of 2002 is ignored. We continue to convey our interests, educate all levels of Government bureaucracy about our values and our role in fish and wildlife conservation but see scarce evidence that our work or our legacy is valued. The Courts have always determined that Aboriginal rights are not limitless and must respect the needs of the rest of society.

The Constitution provides clear guidelines of what can be considered an infringement on those rights and what cannot. Other court decisions like in the Morris case which went all the way to the Supreme Court of Canada determined that a regulation in the Wildlife Act of BC unduly infringed on an asserted right of the Tsartlip Indian Band. The Government of BC failed to prove that hunting at night was necessarily a safety concern. Currently many First Nations assert that our system of Limited Entry Hunts unduly infringe on their hunting rights. Presumably the argument is that their priority right to hunt should prevail over any resident or non-resident opportunity regardless of conservation concerns. In other words if there is a conservation concern that gives rise to an LEH it is a concern that should not affect them. This would make an interesting court argument.

Vancouver Island Region Wildlife Management Society:
Directors of this Society have representation from the BCWF, GOABC, BC Trappers Assn. and five First Nations. Other First Nation members attend some on a regular basis and some only occasionally. The VIRWMS has funded two First Nation Wildlife Forums in the past and non-First Nation members have been excluded. The next FN Wildlife Forum is scheduled for March 10, 2008 and this time all the Stakeholder reps have been invited. Considering the main subject for discussion is the creation of a FN only wildlife management group one has to ponder the purpose of inviting the stakeholders. Clearly, FNs can take their decisions/recommendations straight to Government without our input. I hope to update the delegates in regards to what may or may not be a unique opportunity resulting from this forum.