As neighbouring US jurisdictions like Washington State move to ban fish farming on the Pacific coast and ‘Namgis First Nation files a lawsuit against Fisheries and Oceans Canada for current fish farm practices, West Coast staff members Maxine Matilpi and Stephanie Hewson reflect on the environmental impacts and ongoing Indigenous opposition to open net-pen aquaculture on the coast of BC.
Salmon are not just a commodity
Maxine Matilpi, RELAW Project Manager
When she was growing up at Ḵalug̱wis (on Turnour Island on the coast of BC), our Ma’amtigila grandmother used to eat salmon three times a day. Every day. She would laugh describing how even on Christmas Day, the family didn’t have turkey; they’d have their three salmon meals.
On summer mornings, when she was a young woman, maybe from the time she was twelve, she would go by herself in a canoe and use a net to fill up the boat with sockeye. She then brought her catch back into the village where she went door-to-door distributing fish to elders. In the evenings, she would do the same thing again – go out in the canoe and bring back fish to share.
Our grandmother was a praying woman and I imagine she would have done this gathering with gratitude and reverence. And while I don’t know for sure, I imagine, like other Kwakwaka’waxw women, she might have said a Kwak’wala prayer like this:
“Prayer to the Sockeye Salmon”
Welcome, o Supernatural One, o Swimmer,
Who returns every year in this world
That we may live rightly, that we may be well.
I offer you, Swimmer, my heart’s deep gratitude.I ask that you will come again,
That next year we will meet in this life,
That you will see that nothing evil should befall me.
O Supernatural One, o Swimmer,
Now I will do to you what you came here for me to do.
This prayer was collected and translated (c.1895) by our Tlingit great-great-grandfather, George Hunt, who spoke Kwak’wala and worked with anthropologist Franz Boas. I love this prayer because it illustrates the special place of sockeye from a Kwakwaka’waxw perspective.
Salmon are not just a commodity; salmon are from another world and gift us with their return to “this world.”
They’re not just natural; they’re Supernatural and have the power to gift us with right living, wellness, and even protection from evil.
They have agency, come of their own volition, deliberately offering themselves to us.
For Kwakwaka’waxw people of northern Vancouver Island and the adjoining mainland – indeed for many Indigenous people – salmon is integrated into all aspects of life. They are connected to our economies, health and spirituality, and they are as important to us as buffalo were/are to peoples on the prairies.
Because today’s sockeye carry the DNA of their sockeye ancestors, we can reflect upon how their ancestors nourished our ancestors. This ongoing relationship of respect is worthy of our heart’s deep gratitude and reminds us to do our own prayers, to return bones to the ocean, to not waste, to share, and to be protective of their habitat.
But who prays to their farmed fish that “nothing evil should befall” them? And who (except maybe corporate owners of fish farms) offers their heart’s deep gratitude?
Back in November 2017, I listened to First Nations fishers sharing their worst fears: the horrible prediction of salmon extinction in six years. This fear is based on their personal experiences of empty freezers and huge losses to their communities from dwindling salmon returns. The losses they described were physical, spiritual, mental and emotional.
The loss of salmon affects our communities at the deepest level, as even our governance structures are patterned around this vital species.
Fish farm occupations
Stephanie Hewson, Staff Lawyer
As a newcomer to the West Coast, and as a lawyer trained in Canadian law, I have spent the past several months learning about Canada’s aquaculture practices and the Kwakwaka’waxw members’ actions to protect wild salmon in the Broughton Archipelago. I have been struck by the differences between Indigenous and Canadian law, and the implications these differences have for the fish farming industry and the protection of wild salmon.
Many Kwakwaka’waxw people – including members of Musgamagw Dzawada'enuxw (MD) and ‘Namgis First Nations, whose traditional territories are on Northern Vancouver Island and the mainland – have linked recent declines in wild salmon to the fish farms on their territories, based on their observations of wild fish populations since fish farms were introduced to their territories nearly 30 years ago.
Within their traditional territories in the Broughton Archipelago, there are over twenty fish farms, primarily owned by Marine Harvest Canada Inc. and Cermaq Canada Ltd. The First Nations have opposed the fish farms since they were introduced.
In August 2017, in response to growing concerns about the harmful effects of farmed fish on wild salmon, members of MD and ‘Namgis Nations began to occupy fish farms on their traditional territory. The Musgamagw Dzawada’enuxw protest, named “Cleansing Our Waters,” calls on the provincial and federal governments to revoke the fish farms’ permits and shut them down.
Cleansing our Waters rally in Vancouver, Sept. 2016 (Photo: Derek Read)
Environmental concerns
Canadian laws currently authorize open net-pen fish farm aquaculture. Aquaculture in BC is primarily regulated federally by Fisheries and Oceans Canada (DFO), however the BC Ministry of Forests, Lands and Natural Resource Operations and Rural Development is responsible for issuing and managing farm site tenures, and the BC Ministry of Agriculture has responsibilities for seafood industry development, including transfers of fish and processing.
Open net-pen facilities raise significant environmental concerns because they allow free and unregulated exchange between the fish farm and the rest of the aquatic environment. This means that pollution from excess feed, antibiotics, parasites, fish blood and fish feces release directly into the ocean.
Conditions in farms also promote the growth and spread of common fish parasites, such as salmon lice, and other diseases. Infections common to farmed fish can easily transfer to wild salmon: a recent study by biologist Alexandra Morton found that wild salmon exposed to fish farms are nine times more likely to carry piscine reovirus (PRV), a virus that is connected to a potentially fatal disease. The provincial government recently confirmed that PRV is present in the “bloodwater” discharged from farmed fish processing plants directly into the ocean, as exposed by underwater photographer Tavish Campbell.
Similarly, the transmission of salmon lice from farmed fish to juvenile wild salmon is of particular concern where farms are situated in migration routes.
Escape events, such as the release of 260,000 farmed salmon that occurred in Washington state this past summer, introduce non-native Atlantic salmon into wild Pacific salmon habitat – creating concerns of competition and displacement of wild fish.
Court case
In October 2017, Marine Harvest served the fish farm occupiers with a civil claim, citing trespass to land and property, private nuisance, intimidation and conspiracy. Cermaq filed a similar claim. Along with the civil claim, both companies filed applications for an interlocutory injunction, which is a request for an interim order before a final decision is made, asking that the court prohibit the occupiers from entering onto or interfering with the fish farm sites.
The occupiers defended their actions as an important component of their inherent right to govern their territory, and as an exercise of their Aboriginal rights and title. In an affidavit filed in response to the companies’ injunction applications, Hereditary Chief Charles Coon of the Kwikwasut’inukw Hakwa’mis First Nation (a member band of MD Tribal Council) stated that the occupiers’ actions were consistent with his nation’s responsibilities “to protect our waters and resources that support our livelihood, culture and ways of life.”
In January, Justice Voith of the BC Supreme Court ruled in Marine Harvest’s and Cermaq’s favour. The judge granted injunctions against the occupiers, requiring them to stay off the site and to refrain from interfering with the companies’ operations. The court focused on the fact that Marine Harvest and Cermaq’s operations are legal under federal and provincial legislation, whereas the occupiers’ actions are not.
Civil (dis)obedience
The fish farm occupations may be an instance where, as Anishinaabe legal scholar John Borrows writes, “so-called civil disobedience could… be characterized as obedience to Canadian law ‘as it should be,’ if such laws applied Indigenous legal principles or the state’s own highest standards.”
How would Canadian law have to change so that the treatment of wild salmon and regulation of the aquaculture industry aligns with proper stewardship of waters and salmon from a Kwakwaka’waxw perspective, and with the Canadian state’s own highest standards for fisheries management and environmental protection?
Living up to Indigenous legal principles
Adapting Canadian law to reflect Indigenous legal principles requires governments, judges and others to recognize Indigenous law. As legal and political authorities, it is their responsibility to learn about Indigenous laws.
In his 2012 article “The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice,” the then Honourable Chief Justice Lance Finch proposes that the honour of the Crown includes a duty to learn that is held by all members of the legal profession. When it comes to protecting wild salmon, recognizing the inherent authority of Indigenous laws and creating space for the healthy interaction between Indigenous laws and Canadian laws is one way forward.
Another way forward may be by granting legal personhood to wild salmon. Recognition of the rights of the natural world is gaining momentum internationally. For example, in New Zealand, last year the Whanganui River was declared to be a legal person, “from the mountains to the sea, incorporating all its physical and metaphysical elements.” Legal personhood accords more closely to the Maori worldview of the river as an ancestor and living being.
This approach is controversial, particularly because the granting of legal personhood remains grounded in the common law, rather than Indigenous legal traditions. In some respects, granting legal personhood to wild salmon could reflect the Kwakwaka’waxw worldview of salmon as living beings with their own agency, power and volition – a perspective which, generally speaking, is shared by Indigenous nations along the coast – though this is still grounded within Western rather than Indigenous legal norms.
Raising the bar on aquaculture regulation in Canadian law
Fish farm regulation currently does not live up to Canada’s own highest standards for environmental protection and sustainable management of our fisheries. Firstly, aquaculture regulations are a patchwork of federal and provincial legislation that varies widely from province to province. In BC, for example, the primary responsibility for aquaculture regulation falls to the federal government, whereas on Canada’s Atlantic coast the provinces are mostly responsible for fish farms within their jurisdictions. This makes it difficult to hold the aquaculture industry to the same regulatory standard throughout the country.
Secondly, current practices employed by the aquaculture industry (authorized by DFO) may not be legal under Canada’s own laws. This is the subject of a current court case against DFO led by biologist Alexandra Morton and Ecojustice, which challenges the practice of transferring fish to fish farm facilities without testing for some known pathogens, such as PRV. ‘Namgis Nation recently filed a lawsuit against DFO challenging the fish transfer practice on similar grounds, and on the grounds that DFO has not adequately consulted the nation.
Lastly, BC is one of the few jurisdictions on the Pacific Coast that allows open net-pen fish farming. Alaska and California have both banned the practice, and Washington voted this month to ban Atlantic salmon farming within their waters as well. Oregon does not have any open net-pen fish farms on its coast. The concerns of our neighbours to the north and south should alert us to the need to take a closer look at our own regulations.
The federal government recently announced that it will be convening an independent expert panel on aquaculture science. This is in addition to the ongoing aquaculture regulatory reform, also conducted by DFO, and the BC government’s review of fish processing plants and finfish aquaculture regulations.
The expert panel review is an opportunity for the federal government to take concerns over farmed fish seriously. It is a chance to work in partnership with First Nations, with input from scientists and conservation organizations, to bring fish farming in Canada into alignment with Indigenous legal principles, the best available science, sustainable management practices and the protection of our wild salmon.
In the meantime, Kwakwaka’waxw members continue to uphold their laws and steward their traditional territories and occupy camps in the Broughton Archipelago. As mentioned above, ‘Namgis has also filed a lawsuit against DFO, as well as an interlocutory injunction that, if successful, would prohibit farmed fish transferring to continue while the lawsuit is being decided. The injunction application is in court this week. The Kwakwaka’waxw nations’ ongoing actions can be followed on the Cleansing our Waters and Fish Farm Occupations websites.
Top photo: Bureau of Land Management via Flickr Creative Commons