In the Gladstone decision the Supreme Court of Canada ordered a new trial to consider whether the limitations imposed on the Heiltsuk were justified, not to “establish the extent of licences that ought to be available” to the Heiltsuk First Nation.
(a) Spawn-on-kelp licences: Existing spawn-on-kelp licences were not purchased and transferred to the Heiltsuk First Nation because of the high cost of spawn-on-kelp licences and because constraints on the allocation transfer program do not alllow for sufficient capacity to be retired from the spawn-on-kelp licence category. The Department of Fisheries and Oceans, DFO, facilitated the voluntary retirement of herring gillnet licences from the commercial fishing fleet to offset harvesting capacity resulting from the addition of new communal spawn-on-kelp licences in accordance with departmental policy.
(b), (c), (f) and (g) Economic and market impact: An economic/market assessment regarding spawn-on-kelp was conducted in 1997. The spawn-on-kelp technical working group has not conducted a formal review, but the issue has been discussed with industry participants. The 1997 study determined that the state of the Japanese economy is a critical factor in the demand for spawn-on-kelp, particularly Japanese income levels and exchange rates. The study also found that a previous increase in the number of licences had a temporary effect on prices, and therefore it recommended that future quantity changes should be gradual. The situation has been monitored since then, but no formal review of the economic or market impact has been conducted, nor have there been recommendations.
In retiring herring gillnet licences and creating communal spawn-on-kelp licences, the objective is to keep overall harvest effort on herring stocks constant. The management plans reflect changes to the number of herring gillnet and spawn-on-kelp licences.
(d) and (e) Biological impact: Biological assessments of B.C. herring stocks are conducted every year. The herring gillnet, seine and spawn-on-kelp fisheries are monitored throughout the fishing season. Assessments based on in-season monitoring and other factors are used to determine the total allowable catch and herring management plans for subsequent years. The spawn-on-kelp technical working group did not do a formal review, but the issue was discussed and industry participants provided advice.
The harvest of macrocystis kelp used in spawn-on-kelp operations is carried out under the authority the B.C. ministry of fisheries. The B.C. ministry issues marine plant harvest licences, which include licence conditions on the area and quantity of kelp that may be harvested.
(h) The Supreme Court of Canada, in the Gladstone decision, 1996, found that the Heiltsuk tribal council had an unextinguished aboriginal right to trade herring spawn-on-kelp on a commercial basis. While the court did not quantify that right, some guidance was provided on matters that might be considered to determine whether the external limitations were justified. As part of the aboriginal fisheries strategy, AFS, discussions, DFO then consulted with the Heiltsuk on the number of licences to be issued for the 1997 and 1998 seasons. The minister considered the impact of additional licences on existing licence holders. Some commercial harvesting licences have been removed from the fishery. The spawn-on-kelp fishery is a limited entry fishery, which is open only to those who hold a licence. Public access has not changed as a result of the issuance of licences to the Heiltsuk tribal council.
Question No. 211—