February 22, 2018

Squamish First Nation and how courts may require that indigenous communities prove FSC needs


In a recent decision which upholds a DFO decision to allocate only five sockeye salmon per person per year to Squamish First Nation (“Squamish”), the Federal Court held that Squamish had failed to prove any adverse impact on their aboriginal right to fish for sockeye salmon, and therefore DFO had no duty to consult about its decision: Squamish Indian Band v Minister of Fisheries and Oceans, 2017 FC 1182

In 2011, Squamish requested an increase to its Food, Social and Ceremonial (FSC) allocation for sockeye salmon in the Fraser River, from 20,000 pieces to 70,000 pieces, based on its per capita allotment being substantially less than that provided by DFO to other First Nations. In May 2014, DFO increased sockeye salmon allocations for 2014 and beyond from 20,000 to only 30,000 pieces, and also approved increases for chum and pink salmon. DFO noted that over 100 First Nations had licenses for sockeye salmon, and that insufficient sockeye salmon was available to fulfil current FSC allocations. Squamish challenged that decision.

Although Squamish challenged the allocation decision based on a failure of Canada to consult, the court held that a duty to consult requires a potential that contemplated (federal) conduct may adversely affect an asserted Aboriginal right. Although DFO had knowledge of Squamish’s asserted rights, the court decided that it was not satisfied that DFO’s conduct would adversely affect the right to fish for sockeye salmon for FSC purposes. The court said that Squamish had to present evidence to demonstrate how not being able to fish for 70,000 pieces of sockeye salmon versus 30,000 pieces has an adverse impact on its asserted right to fish. [72] It held that beyond proving the importance of sockeye salmon, Squamish did not establish “the causal link between the allocation and how that allocation would adversely affect the Squamish Nation’s ability to fish sockeye for FSC purposes on the Fraser River.” [73]

Despite recognizing evidence that an allocation of five sockeye per person, or less, “is not enough Sockeye to be stored for our community’s social and ceremonial purposes,” the court said that “no evidence was provided as to why 5 sockeye was not enough for social and ceremonial reasons”. Specifically, it said that, “Beyond a stated preference for sockeye salmon, the Squamish Nation did not address why other fish cannot satisfy the food needs of the community.” (emphasis added) The court went on to note that DFO had requested, but Squamish had not provided to DFO, information about how Squamish was estimating the FSC requirements for the community. [76]

The court then went on to find that even if the duty to consult were triggered, the duty was at the “low end of the spectrum” and Squamish failed to show a strong link between the allocation and its asserted right to fish for Fraser River for sockeye salmon. [78]

Furthermore, the court decided that DFO’s decision was reasonable. Notably, DFO asserted that Squamish did not provide DFO with a “community foods needs study,” and that instead of considering the per capita allocation of sockeye salmon to Squamish members, DFO could consider “not just one type of fish on a per capita basis, but all types of fish among all Aboriginal groups” [99], and also whether Squamish had access to “a reasonable number of FSC opportunities”. [107]

The court’s reasoning is puzzling on several levels. First, if an aboriginal right relates to fishing for a specific species, and some evidence shows that an allocation is not “enough” – by any measure — the allocation is no less adverse because the community can replace the shortfall through other kinds of fish that will meet their “food needs”. One cannot show that a right to fish for sockeye is unharmed because DFO allows fishing for other species. At best, increasing availability of other fish may justify an allocation that limits access to sockeye, but that does mean that the allocation itself had no adverse effects.

In taking the approach it did, the court implies that aboriginal rights are not species-specific, such that different kinds of salmon (or even different kinds of edible sea creatures) are interchangeable. Only in this way could the court have concluded that a cap on fishing for sockeye salmon is harmless, as long a band can fish for other kinds of salmon (or indeed for any kind of marine food). The interchangeability of traditional foods seems to underlie the court labelling Squamish’s need for sockeye salmon as a mere “preference”; the court presumed that impairments of FSC rights cannot flow from reductions in sockeye salmon, relative to “ordinary” or “customary” sockeye fishing levels, unless indigenous communities can also show that they are also unable to “replace” shortfalls of sockeye salmon through other traditional foods.

Apart from this issue of when an allocation must adversely impact FSC needs generally, as opposed to FSC needs for a particular species, this decision also raises concerns as to how an indigenous community must “prove” their FSC needs. Implicit in the court’s reasoning is the need for an indigenous community to scientifically and collectively quantify its FSC numbers, not merely through anecdotal evidence (e.g., how much fish a fisherman historically caught, and how much he or she may now catch), but through larger “scientific” studies that address FSC needs on a broader community level. But a need for “scientific” evidence fails to respect the experiences of individual community members (from which a court could also infer community needs) and requires that indigenous groups undergo the substantial burden of expensive community studies in order to defend their aboriginal fishing rights against “allocation” decisions.

We also note that while the fact of DFO considering the needs of other aboriginal communities was central to the reasonableness of its allocation decision, the court’s reasons do not disclose what evidence, if any, was before the court in terms of the total percentage of sockeye salmon being allocated by Canada to indigenous communities as a whole. When we sought disclosure of that information on behalf of Heiltsuk during the Cohen Commission hearings, the commissioner ordered that Canada disclose the percentage allocation, but government refused, instead claiming “cabinet confidence” over that information and related documentation: see the Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River, “The Uncertain Future of Fraser River Sockeye” Volume 1, Final Report – October 2012.

Given that Squamish has filed an appeal to the Federal Court of Appeal, indigenous communities and their lawyers can expect more court rulings on these important issues in 2018 or 2019.

Squamish Indian Band v Minister of Fisheries and Oceans, 2017 FC 1182

Lisa C. Fong and Michael Ng