It's not the heat wave on the Westcoast that's causing the water to heat-up. The federal government's Department of Fisheries is set to re-open the Aboriginal Fisheries Strategy on the waters of British Columbia.

The Aboriginal Fishery Strategy (AFS) was first implemented on the Pacific coast in 1992. The program enabled four pilot native bands (Burrard, Musqueam, Tsawwassen and Sto:lo) to operate limited pilot commercial fisheries in the lower Fraser River. Several times in recent years, native and non-native commercial fishermen have been shut out of the harvesting while a few select native commercial fishermen have been allowed to fish. This has lead to various protests by native and non-native commercial fishermen.

On July 28, 2003, Provincial Court Judge Kitchen granted a stay of proceedings against over 130 fishermen accused of illegal fishing during a protest. Judge Kitchen called the AFS illogical and discriminatory. "I have concluded that the pilot sales fishery is offensive as being analogous to racial discrimination," Judge Kitchen said. "The program confers an unjustifiable benefit on the individual members of the bands at the emotional and financial expense of the commercial fishers. It is grossly unfair."

Almost a year later, Justice Brenner of the BC Supreme Court overruled the lower court. Justice Brenner ruled native-only commercial fisheries do not discriminate. He did not however, endorse the federal government's controversial Aboriginal Fisheries Strategy (AFS), but indicated Ottawa should come up with a better way of allowing Indians into the lucrative BC salmon fishery.

Ironically, natives have always enjoyed the same right of access to commercial fisheries as all other Canadians. For example, in British Columbia prior to implementation of the AFS, native people participated in the commercial fishery at a ratio ten times that of their ratio to the general population. There was no need for the Aboriginal Fishery Strategy then or now.

So far in the courts there has been 1 win and 1 loss for the Aboriginal Fisheries Strategy; and the BC Fisheries Survival Coalition plans to appeal the most recent ruling and expects their case to work its way to the Supreme Court of Canada. The court rulings thus far have hardly given a decisive mandate for the federal government to continue the controversial and contentious program. But that's precisely what the fed's are planning to do.

The federal government should cancel the Aboriginal Fisheries Strategy until all appeals have been exhausted. Or, at the very least, follow Judge Brenner's advice and examine alternatives to the current program. To do otherwise will only lead to greater ill will on BC's waters.