Madam Speaker, the fundamental protection for fishermen against arbitrary action by the government is found in the public right to fish. The fishers bill of rights introduced by my colleague from Charlotte recognizes the importance to fishermen of this right. It is for this reason I stand today to offer my support for this bill of rights for fishermen.
This ancient public right, a right for all citizens, until recently was so ingrained in our law making that it was not often spoken of. As of late it has become fashionable for ministers of fisheries to trumpet the importance of the creation of exclusive or private fisheries. Sometimes well meaning but weak ministers have been tempted by the idea that they could buy peace on the water and end lawlessness through the creation of private fisheries. This happened in British Columbia in 1992 with the creation of the exclusive native commercial salmon fishery on the Fraser.
Another insidious trend is just as great a threat to the fishery as the attempt to buy peace through the creation of private fisheries. That is the turning of a fishery over to a large corporation, to the rich and the powerful.
In the rush to create these private fisheries, our policy makers have forgotten our history and our fisheries law in regard to the public right to fish. The legal principles underpinning the public right were not arrived at overnight or in some great economic think tank. The public right is not the preserve of the right of economists on the right or the left. The public right knows neither left nor right.
It has stood the test of time. When we tinker with the public fishery we can do great harm unless we have understood what the public right is and its proven utility over hundreds of years, that it has given all citizens access to the public fishery, rich or poor, large or small, native or non-native. That equality of access deserves careful tending in a fast changing world.
Like so many of our legal and political conventions the public right developed in English law, but from the earliest days of settlement found root in Canada. The public right to fish has been a recognized feature of our law since the reception of English law into what is now Canada.
It became codified in 1215 when it was set down in provision 47 of the Magna Carta. It was designed to address a public grievance caused by the practice of the king in those times to clear the public off the fishing grounds whenever he wished to go fishing.
Since 1215 it has been accepted in English law that the king does not own the fisheries in tidal waters. They are public. The king has no power to transfer such public fisheries to an exclusive group. All members of the public are equally entitled to access.
Because the public right to fish has an ancient basis, it is sometimes asked by those not familiar with fisheries or marine law if it still has any basis in law in Canada. The courts and the law officers of the crown have from the earliest days in Canada recognized the public right to fish.
In 1996 the Supreme Court of Canada in deciding Van der Peet, Gladstone and NTC Smokehouse, fisheries cases from British Columbia, relied on the legal principle often referred to as the public right to fish.
This ancient right has stood the test of time and is very much alive today. It guarantees the public right of access in public waters. Fish in navigable or tidal waters are not owned by the crown. Rather, the crown is the guardian or trustee for the public in this right of access to a fishery in public waters.
The supreme court's 1996 decision in Gladstone relied on the position our courts and law officers have been taking for the past 150 years. The court in Gladstone relied on and restated the decision in the 1913 British Columbia fisheries reference:
Since the time of the Magna Carta, there has been a common law right to fish in tidal waters that only can be abrogated by the enactment of competent legislation.
The 1913 reference certainly established that the public right of access was a part of Canadian law, yet it operated in Canada long before 1913.
The National Archives contains an 1866 letter from the solicitor general of the province of Canada that is still quoted today. In the 1866 legal opinion the solicitor general states:
Without an act of parliament—no exclusive right could thereby be gained—as the crown could not—grant an exclusive privilege in favour of individuals over public rights—in respect of which the crown only holds as trustee for the public.
The National Archives also has a handwritten letter to Sir John A. Macdonald from one of his ministers dated 1882 advising him of the centrality in fisheries law of the public right to fish:
Fishing rights in public waters cannot be made exclusive excepting under the express sanction of parliament.
Justice LaForest, a recently retired justice of the Supreme Court of Canada, in his legal text “Water Law in Canada” describes the federal government as a trustee for the public of the public right of fishing.
The federal government in its argument in the supreme court in Gladstone neatly summarized the law:
Since Canada was not settled by the English prior to the Magna Carta there could not be exclusive fishing grounds in tidal waters in those parts of Canada which are governed by the common law (unless granted by statute).
“Fisheries Law”, a document prepared by the Continuing Legal Education Society of British Columbia as an aid for lawyers seeking to upgrade their knowledge of fisheries law states:
[The public right to fish] places a restriction on the power of the crown, and therefore on the discretion of the Minister of Fisheries and Oceans, which applies to this day—Without clear express statutory authority common law rights in the public fisheries—cannot be extinguished.
I have taken a great deal of time addressing the public right of access to the fishery because it is fundamental to any bill of rights for fisherman.
Recent actions by the Minister of Fisheries and Oceans reveal that he has played fast and loose with this ancient right in British Columbia.
My views on the legality of the native commercial fishery regulations are well known.
The provincial court of British Columbia ruled this year that these regulations were outside the law. The court found the minister in contempt of the law but I am not here today to talk about the now illegal exclusive native commercial fisheries regulations.
If the minister and his officials had respect for the law and the ancient right of public access to the fishery, we would not be confronted by an illegal act by the minister of fisheries.
Fishermen must know their rights if they are to protect themselves from those policy makers who would create private fisheries for the profit of the powerful, whether they be large corporations or those that engage in lawlessness.
The best advice, whether in 1866, 1882, 1913 or 1996 by law officers of the crown and the courts has been to remind ministers that their job is to protect the public right. They are its trustee, its guarantor.
I support this bill of rights for fishermen because it acts to remind the minister of his responsibility as trustee of the public right to fish in public waters.
I bring to the attention of the House another area of arbitrary action by the minister of fisheries where fishermen are in need of protection.
Last summer at a time when American Fisheries Society scientists had named at least 214 coho stocks in B.C. at a high risk of extinction, the department's chief spokesman on fisheries management told fishermen that of the 900 individual coho stocks in B.C., only two were threatened with extinction and that efforts would be made to protect them.
On June 19 the minister stated: “In order to meet my coho conservation objectives announced on May 21, all areas on the coast will be defined as either red zones where there is an objective of zero fishing mortality or yellow zones where fishing will be allowed if and when the risk of coho bycatch mortality is minimal”.
When it came to putting in practice the notion of protecting fish, the minister was nowhere to be seen. In fact, he allowed fishing in a red zone area around the Queen Charlotte Islands, an area where coho stocks were at high risk of extinction.
John Disney, a respected fishermen from Masset in the Queen Charlotte Islands, tells me that in the last cycle year commercial gill net fishermen in that area killed only 1,038 coho as bycatch for the whole season.
The minister allowed sports fishermen, in particular his friend, the owner of the Oak Bay Marine Group, to conduct a sport fishery in that area which Mr. Disney estimates was killing 900 coho per day.
A fishers bill of rights as proposed by my friend from Charlotte would have prevented this arbitrary transfer of allocation designed to profit a rich friend of the minister and would have offered protection to the resource.