With rare exception, all Canadians can fish in all tidal or navigable waters almost anywhere in Canada. Try that in Scotland and you’ll be prosecuted for trespassing. The minister of fisheries can, of course, close a fishery for conservation reasons, favour aboriginal food fisheries over public fisheries or commercial fisheries over sport fisheries or vice versa. What the minister cannot do is carve a piece off the public fishery for his friends. No minister can refuse a Canadian entrance to a public fishery because they are too old, the wrong race or too poor to have good political connections. The budget bill will change all this.
The origin of the public right to fish is lost in the mists of time, but the Roman emperor Justinian was the first to encode in law that the running waters, oceans and air are common to all and owned by no one. After the fall of the Roman empire, English kings often gave away the public fishery to reward their allies and sheriffs cleared commoners off rivers when the king and his friends wanted to fish alone.
The public fishery was resurrected when English barons forced King John to sign the Magna Carta in a muddy field outside London in 1215 — a clause forbade the king from killing what was left of the public fishery. Queen Elizabeth I ordered Sir Francis Drake to defeat the Spanish Armada, but she could not reward him with the fishery in the tidal waters of the Thames River after the Spanish fleet was destroyed.
The public fishery is one of England’s great legacies to the English-speaking people of the world. Magna Carta is why, unlike forests, minerals and land, the people of Canada own the fishery, not the government. As Justice Gerard La Forest, one of Canada’s most respected Supreme Court of Canada jurists, wrote, the government is the trustee of the fishery, not the owner. Parliament can eliminate the public right, but few have tried and none were successful. This time, I am not so confident; hidden inside the Conservative budget bill are a few clauses intended to end the public fishery.
If the budget bill becomes law, the fisheries minister will be able to take fish from the public fishery and give it to his friends through so-called fishery agreements. The budget bill even lets the minister finance his department with the people’s fish. Crafty use of fishery management agreements may even close certain waters to anyone but the friends of the minister.
Equally serious, the budget bill redefines aboriginal fishing as fishing with a commercial purpose. The Supreme Court of Canada has carefully distinguished between aboriginal fishing for food versus fishing for money. The court recognized that the number of fish caught for food is limited by how much fish a person can eat. Fishing for money, of course, is only limited by a desire for money.
The Harper government’s attempt to kill the public right is by no means the first time a monarch, bureaucrat or friend of the minister tried to subvert the public fishery for their own interests. In the 18th century, colonial governors in Nova Scotia and Newfoundland had to be reminded that “any of His Majesty’s subjects” could fish and not to interfere with their right “upon any pretense whatsoever upon pain of His Majesty’s highest displeasure.” One can imagine what form a king’s displeasure might have taken in 1775.
In 1847, bureaucrats in the British colonial office wanted to grant the entire fishery around Vancouver Island to the Hudson’s Bay Co. Queen Victoria, upon the advice of the prime minister and her other advisers, ordered the fishery struck from the grant. Not even the formidable Hudson’s Bay Co. could sway the queen and her advisers from defending the public right.
Today, the queen’s decision means that 300,000 Canadians fish for sport and food every year in British Columbia. This young Queen Victoria, a continent and the Atlantic Ocean away from Vancouver, understood that the people of a yet-to-be-formed nation treasured their right to fish — a lesson lost upon Ottawa in 2012. It gives credence to the B.C. saying that it’s 3,000 miles to Ottawa and 30,000 back.
This is the Harper government’s third attempt to kill the public fishery. Chretien tried three times too, but in 1998 wisely abandoned further attempts. He knew that Liberal seats in Atlantic Canada were at risk if he messed with the fishery.
If the budget bill becomes law, Canada’s fisheries will be in the hands of DFO bureaucrats and ministers who want to use fish to reward friends or punish enemies. Even now, some commercial fishing interests and Ontario’s biggest sport fishing organization have endorsed the budget bill. Hard to say whether it’s naiveté or wanting to be on the right side of the boat after the government takes the fishery from the people of Canada.
Queen Victoria protected the public fishery from 26 Canadian prime ministers. In thanks, on this 24th day of May, my fishing friends and I will raise a glass to the queen.
Original Article
Source: vancouver sun
Author: Phil Eidsvik
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