Aboriginal fishers defend traditional right to salmon in Fraser Valley

Frustration mounts that court decisions in favour of Aboriginal rights have not been put into effect
Rachel Bergen

Editors' note: Later this month, a Wild Salmon Caravan is travelling from Prince George to Vancouver, with stops near the salmon’s migration path of the Fraser River. The caravan's goal is to draw attention to threats to this iconic species from myriad industrial projects in British Columbia. This month, Ricochet is featuring a series of articles on salmon and other fish and marine life at the heart of the region’s economies and cultures, especially First Nations. This is the first of a two-part feature by Rachel Bergen.

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Mike Fraser secures his gun, baton and pepper spray to his belt and zips up a jacket over a bulletproof vest. The arm of his coat is emblazoned with the federal Department of Fisheries and Oceans crest. It’s the last day in 2014 that Aboriginal communities in British Columbia’s Fraser Valley can fish for chum salmon until the fishery opens again in June.

How the Heiltsuk First Nation battled the DFO to save the fish — for all of us

Fraser sets out on a 20-foot-long boat with his colleague, Doug Clift, to check that only fishers from designated communities are fishing and that they aren’t selling what they catch. The burly men cast off onto the Fraser River just outside of Chilliwack on a cold, foggy day. They travel about 70 kilometres to Hope without seeing any Aboriginal fishers harvesting chum.

They do find three nets left unattended in the water. With few exceptions, it’s illegal to cast nets and leave them. The men free the fish — dead and rotten or newly netted and still flopping — and cast them back into the depths.

She also taught her children the Coast Salish laws that kept salmon stocks plentiful since time immemorial.

Last summer, Fraser and Clift worked late into the night. They placed cameras along the Fraser River and sat quietly in the bushes for hours, night vision gear in hand, collecting evidence to build cases against people who were fishing illegally.

These clandestine tactics led to arrests when the fisheries were closed for much of the season. In the dead of night outside Chilliwack, Fraser and Clift arrested several illegal fishers and confiscated eight boats, 50 nets and many fish.

Rachel Bergen

Fishery officers can use their discretion and are authorized to seize fishers’ vehicles, boats, motors, nets and catch. Once seized, the property belongs to the Crown indefinitely.

“We try to take the tools of the trade away from them until they appear in court. We need to make sure they’re not out there fishing again,” says Herb Redekopp, DFO chief of conservation and protection.

But Aboriginal fishers say they struggle to access enough fish to maintain traditional lifestyles because harsh enforcement policies disproportionately target them. In its Pacific Region, which includes B.C. and rivers that cross into the Yukon, DFO spends a significant part of its budget monitoring Aboriginal fisheries, though just a handful of these fishers are considered threats to the salmon.

People of the River

On a July afternoon a decade ago, fishery officers apprehended a suspected perpetrator named Patricia Kelly.

As Kelly recounts the story, she runs a hand through her hair, once long and black, but now white and patchy. She says she lost all her hair because of stress.

Kelly’s name in Halq’eméylem, the traditional language of the Stó:lō people, is Kwitsel Tatel, which means Grizzly Bear Mother. Decades before receiving this name, she spent her days playing in the river and learning about its role in her life and culture. Kelly’s home community of Le’qa:mel First Nation in Deroche, B.C., is steps away from a tributary and walking distance from the Fraser River. As a child, Kelly spent nearly every day at the river with her parents and 10 siblings. The water is engrained in her identity and that of the Stó:lō, which means People of the River.

“I was raised on the river between Musqueam and Yale,” she says, explaining that her earliest memories of the river involve family, fun and connectedness. “That was our bathtub, our wash for clothes. We did everything at the river in terms of our sustenance.”

These Coast Salish laws sometimes conflict with the current laws of the Canadian state.

Kelly recalls sitting in a canoe as a young child with her mother, Rene Pennier. Gazing at the lopsided peaks of Mount Cheam, she received the most important advice of her life. “My mother said to me with my English name, ‘Patricia, stand up. Look around. Look as far as you can see.’ Then she said, ‘It’s yours, you protect that.’”

Her mother was a survivor of the Mission Indian Residential School and had lost all motivation to speak Halq’eméylem or teach her children the language. Kelly was lucky to learn some important lessons from her mother, who hadn’t relinquished all of her culture to the brutal assimilationist tactics of the government and churches.

Coast Salish territory encompasses many tribal groups, including the Stó:lō, throughout the southern coast of B.C. Protection of cultural practices and the land often go hand-in-hand in these communities. Kelly says her mother modelled these practices as she fought for survival. “Our mother, she used to shoot at DFO. She would take a .22 and point it towards the net if she saw DFO by her net and she would holler, ‘Fuck off!’ They would take her net.”

Kelly’s father died when she was very young, so Pennier supported her children alone, by harvesting salmon for food and sale.

Before that, Kelly’s maternal grandmother, Margaret Leon, would go deep in the woods to practise her spirituality. At that time, dancing, singing and gathering for potlatches were outlawed by the Indian Act.

“My mom’s mom said, ‘I have to. I need to dance. It’s born in me. I can’t not dance,’” Kelly recalls.

One day she and her brother went to dance at the Shxw’ow’hamel community in between Harrison and Hope, where they thought no Indian agents would find them.

A surveyor heard the drumming and singing and called the police. As a result Kelly’s grandmother spent two months in prison. She rarely spoke about her spirituality after such traumatizing experiences, Kelly says.

“It hurts me even to say that,” she weeps. “But it tells me we have resilience as Coast Salish women with responsibilities to hold our ground, to be seen and to be heard and to be recognized, to be affirmed.”

Kelly has the same fire and resilience. Her petite frame is strong from years of fishing, hunting and gathering. She talks about events that happened hundreds of years ago as if they happened last week.

As a single mother, Kelly taught her children, Sii-am and Kwiis Hamilton, how to fish respectfully, protect their nets and fight for the fish. Like her own mother, she fed her children salmon and made an income by selling the remaining fish.

She also taught her children the Coast Salish laws that kept salmon stocks plentiful since time immemorial. “When that certain bloom on that tree comes out, we know that a certain fish is in the water. That’s our law. And when that bloom is gone, you stop fishing and you allow what’s remaining in the water to continue on to be abundant. Nature makes the laws and we live within the laws respectfully.”

These Coast Salish laws sometimes conflict with the current laws of the Canadian state. This fight has tested Kelly’s strength, especially over the last 10 years.

Continuing a Coast Salish tradition

During the spring and summer months before it gets too hot, Kelly goes out to fish. She drops her nets in the water, waits for the fish to get caught, hauls them to shore, fillets them and then hangs the fillets on racks to dry.

Coast Salish families have done this for generations. Elders say salmon are symbolic of the Stó:lō’s connection to Mother Earth and reflect a healthy relationship between mind, body and spirit. Salmon preparation plays an important role in social gatherings and ceremonies.

In 2004, Kelly caught 396 sockeye salmon for a gathering to honour a community member. Mask and naming ceremonies often draw 500 to 1,200 guests to a longhouse. The salmon served at these gatherings are generally incorporated into the ceremony.

“I won the right to go fishing without the consent of Canada, without the use of the Fisheries Act.”

That day, Kelly went looking for a place that could flash freeze and package the fish so they wouldn’t spoil in the heat until the ceremony took place. This was the beginning of a nearly decade-long legal odyssey.

Fishery officers drove up as she pulled into Sundance Seafoods in Surrey. Kelly and the fishery officers entered into a standoff when the officers forcibly seized her salmon. Kelly was in possession and suspected of selling illegally caught fish. She refused to give up the fish. After nearly five hours, the DFO took the fish and later sold them.

Four years after this confrontation, a trial court found Kelly guilty of possession of fish contrary to the Fisheries Act.

A long legal and spiritual battle

Kelly appealed the charges. Throughout her case, she cited section 35 of the Constitution as her key defence: “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”

Kelly says her Aboriginal rights to fish were not recognized and affirmed, and alleges that intimidation tactics were used to get her to back down from the case.

From 2008 to 2012, Kelly fought for court funding so she could “level the playing field” and defend herself; she was denied. Kelly asked to bring in expert witnesses to explain how her constitutional rights were being infringed upon; she was denied again. The court finally agreed to appoint Professor Anthony Hall of the University of Lethbridge as an expert witness in 2012.

Throughout the battle, Kelly spent almost every day in court or preparing her case. For each court date, she would pick up her courage for another day of difficult conversations.

She alleges that during this time, RCMP officers and fishery officers attempted to break her spirit by following her around and harassing her.

Kelly recalls that on July 25, 2012, she began drumming and singing in the courtroom in an act of spirituality to call on her ancestors for support. Witnesses overheard RCMP officers saying they believed she would use her drum as a weapon. Four officers attacked Kelly. She says they hurt her badly, and when she cried out, one shoved his arm in her mouth to silence her. She bit him and was promptly booked for assault. That day got even worse. Kelly claims that she endured two vaginal-anal searches in one day and was arrested for what she described as “resisting assault.” The RCMP said last year it couldn’t comment on the allegation because it would breach Kelly’s privacy, and the case was still before the courts.

Kelly represented herself in front of several well-respected lawyers and judges. She relied on the cases of fellow fishers who had faced trials before her, including Delbert Guerin and Ronald Sparrow, whose court victories had helped shape and define the law on Aboriginal rights and title years ago.

In Guerin’s case in 1984, the federal government made a deal on behalf of the Musqueam First Nation in Vancouver to lease 162 acres of land to the Shaughnessy Heights Golf Club. The actual terms of the agreement were not properly explained to the band. As a result, the court held that the Crown had breached trust and the government had a legal duty based on a trust relationship with First Nations. The court also held that Aboriginal title is sui generis and an unalienable and unique right to the land.

Six years later, DFO arrested a member of the same band for fishing with a net longer than what is permitted by the band’s fishing license under the Fisheries Act. Ronald Sparrow defended his actions on the grounds that he was exercising his Aboriginal rights. The court held that Aboriginal rights, including fishing, are protected under the Constitution and cannot be infringed upon without justification.

More than 20 years later in 2012, Kelly received an absolute discharge, which she interprets as a win.

She is frustrated that court decisions in favour of Aboriginal rights haven’t been put into effect on the Fraser River. “I won the right to go fishing without the consent of Canada, without the use of the Fisheries Act. I won using my brain, using my resilience, using the spirituality of our ancestors,” she says.

“Even though we have all these wins, millions and millions of dollars and hundreds of thousands of hours of legal research and writing, the wins are collecting dust and are not being implemented and not being enforced.”

Fishery officer Derek Andriatz was the lead investigator in the case that kept Kelly fighting in court. He says Kelly’s victory may be appealed by the Ministry of Justice.

“I know she feels vindicated, and so be it. In the future we’ll see what happens,” he says.

Part two of this article will be published later this month.

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