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Michael M'Gonigle

March 11, 1999

The federal department of fisheries' Pacific salmon management system is unconstitutional and needs to be overhauled according to a report from Dr. Michael M'Gonigle, eco-research professor of environmental law and policy. "We don't need to abolish the entire system, but to make it work, the system requires complete organizational change," says M'Gonigle. "This would transform the DFO from a top-down, insensitive bureaucracy into an overseer of a more decentralized, small-scale and co-ordinated regional management system."

M'Gonigle, who wrote the report with UVic law students Emily Walter and Celeste McKay, charges that the department, in managing the salmon fisheries, fails to uphold Aboriginal constitutional rights and fails in its duty as trustee for Aboriginal people. He says the department's separation of fish management and fish production is at the heart of the problem.

"Separating the production of fish products from the management of fisheries constitutes a structural infringement of Aboriginal rights because it erodes traditional management and makes conservation crises inevitable, and because full recognition of Aboriginal fishery rights requires the development of locally driven, culturally-meaningful, modern, self-regulation initiatives by First Nations.

"This infringement can only be legally justified if done for a substantial and compelling purpose and if it does not violate the Crown's fiduciary duty towards Aboriginal people," adds M'Gonigle. "Despite claiming any infringement is done in the name of conservation, the practical effect of the entire management system has been quite the opposite. The Crown's fiduciary duty has not been met when, despite growing awareness of both the unsustainability of the current fishery and the inherent flaws in the present management system, the department made no change in its strategies."

Pre-contact Aboriginal fishing methods were productive but largely 'passive' (the fish came to the place of capture), or highly selective when off-shore. The development of the canning industry in the late 1800s brought the first regulation of Aboriginal fishing which was increasingly marginalized, often in the name of conservation. Over the past 120 years, the Pacific salmon fishery has been transformed from a community-based, community-owned, species specific one to a predominantly ocean-based industrial fishery that is largely indiscriminate in its species, run and stock impacts, says the report.

"The current infringements of Aboriginal fishing rights are unnecessary to achieve the legitimate objectives of conservation, reconciliation, economic development or regional fairness," says M'Gonigle. "A viable alternative model for managing the Pacific salmon fisheries that does not impair Aboriginal fishing rights - an integrated system of community-based management and clean production - exists and is in use in various jurisdictions throughout the world. This new approach would hold the promise to resolve many of the existing conflicts of Aboriginal and non-Aboriginal fishers."