Charting a Course: Indigenous Rights & Shellfish Aquaculture in New Zealand & BC

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1 Charting a Course: Indigenous Rights & Shellfish Aquaculture in New Zealand & BC Professor Chris Tollefson University of Victoria, Faculty of Law November 17, 2006

2 Acknowledgements - AquaNet Centre of Excellence - National Institute for Water and Atmospheric Research (NIWA- NZ) - Numerous interviewees in NZ and BC (private, public, NGO, Indigenous orgs); Jacinta Ruru & Andrew Geddes - Robert M. Scott & Cameron Elder (UVic Law researchers) - Holly Pattison (ELC Program Administrator) - BC Studies

3 Shellfish Aquaculture in BC An infant industry in a large and growing sector globally Wholesale value = $16 million/yr (2003) Small footprint (less than 21 sq km) If scale/siting issues addressed, has potential as green economic driver for coastal areas In shadow of its finfish cousin

4 BC First Nations & Shellfish Aquaculture Significant potential economic benefits; consistent with traditional First Nations values and practices Many coastal First Nations already involved in commercial shellfish industry Especially promising for coastal First Nations impacted by downturns in wild fishery and forestry

5 Why New Zealand? Analogous politically, legally and culturally Analogous aquaculture industry growth curves Analogous interest in promoting Indigenous participation in industry; and in reconciling Indigenous rights and title claims in the coastal zone

6 New Zealand: Quick Facts 4 million population; 10% Maori [BC has same population with about 5% of First Nation descent] Annual revenues from shellfish aquaculture of about $150 million CDN (approx 10 times larger than in BC); mainly mussels; 700% growth in 1990s Wild fishery settlement Maori (1992) led to effective re-allocation of over ½ catch to Maori interests As aquaculture sector grew, pressure for similar settlement mounted

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9 NZ: Political/Cultural Profile Unitary state with broad powers devolved to Regional Councils No entrenched constitution; however, note Treaty of Waitangi (1840) and robust customary law (interpreted by Maori Land Court) Centrality of Maori culture Emerging role of Maori as economic force (especially on South Island)

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13 The Foreshore Controversy As sector grew, increasing Maori and public concerns Moratorium on new tenures in force from 2002 to end of 2004 In June 2003, NZCA held that Maori title to foreshore has not been extinguished Politically explosive situation ensued Consultations; protests; ultimately a legislated response

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15 NZ Aquaculture Reform Agenda: I Regulatory Issues: Controlling tenure Gold Rush Integrating coastal planning and permitting functions Restoring Industry s social licence

16 NZ Aquaculture Reform Agenda: II Defining the nature of the Maori stake in aquaculture Addressing the foreshore-seabed issue Achieving certainty and buy-in

17 Aquaculture Reform Act Regional Councils take over one-window planning & permitting role (with MoF playing an advisory role) Zoning model: Aquaculture Mgmt Areas (AMAs) set aside Tenure security enhanced subject to social licence

18 Maori Aquaculture Settlement Act Maori Commercial Aquaculture Claims Settlement Act, 2004 Modelled on 1992 Fisheries Settlement Assigns 20% stake of all past and future tenures to Maori under trusteeship arrangement Regional Councils obliged to allocate space to Maori; if none available compensation to be paid

19 Foreshore and Seabed Settlement Act Govt s response to Marlborough Sounds case (NZCA decision, 2003) The law designates all such areas as public domain Judicial jurisdiction to recognize both customary use and territorial rights claims (where the latter, the remedy would be estab of a reserve area) Legislation remains controversial within Maori circles

20 Lessons for BC: Regulatory Planning & Permitting Need to rationalize industry regulation Need for enhanced clarity about rules, values & interests before conflicts over industry growth escalate

21 Planning & Permitting questions How can coastal planning & permitted processes be enhanced? Can/should these processes evolve towards a zoning model akin to the NZ approach? If so, what implications would that have for federal agencies, local government & the treaty process?

22 Lessons for BC: BC First Nations & Shellfish Aquaculture Overarching need to promote Aboriginal economic opportunities while treaty negotiations underway Aboriginal Fishing Strategy (AFS) and Forest & Range Opportunity agreements (FROs) as exemplars Can/should similar strategies be developed in shellfish aquaculture context? Need to avoid silo-ing of the Treaty process from other govt planning/permitting processes?

23 BC First Nations & Shellfish Aquaculture: Discussion Questions What would a BC treaty transition policy on shellfish aquaculture look like? Should it include targets/hard quotas? What lessons can be learned from the AFS and FROs? How can this strategy be integrated with coastal zone planning? What is (should be) the BC policy on foreshore and seabed ownership? How can work at the treaty tables be better coordinated with continuing work of line Ministries?