Shellfish harvesting in Boundary Bay - Governing Transboundary Waters: Canada, the United States, and Indigenous Communities - page 109

with excessive runoff from the upland catchment occurring particularly after major
storm events. Although shellfish are not harmed by fecal coliform bacteria pollution,
these bacteria pose a risk to human health when consumed (Picot et al. , 2011). Due
to such concerns, the intertidal shores north of the international border of Boundary
Bay, Mud Bay, and Semiahmoo Bay have remained closed since 1962. The
Semiahmoo band, whose traditional territory (and modern reserve) centers on
Semiahmoo Bay, has actively fought for stronger regulations to limit pollution and
argued against the “blanket” closures. The Semiahmoo have engaged in subsistence
and cultural shellfish harvesting for thousands of years, and argue that rendering the
tidelands summarily “closed” without periodic review is a violation of their inherent
right to harvest and has insidious impacts on the well-being of their people.
As one community member noted:
Closing the tidal waters altogether means that the people have given up on
the tidal waters. Protecting it and caring for it is no longer a priority. We have
not given up on the water. We can't give up. This is our home and harvesting
from the sea is our way of life.
Closing the areas plays into what Warry (2008) argues is an underlying politics of
denial related to Indigenous issues. For Boundary Bay, the denial acts to limit the
recognition of the scope, importance, and nature of shellfish harvesting for First
Nations. Ideally, habitat restoration practices and enforcement of land use policies
would eliminate the need for closures altogether. However, for immediate purposes,
the removal of blanket closures would allow the Semiahmoo First Nation to fulfill
their right to harvest legally. Canadian First Nations' customary rights to fish and
harvest marine resources are protected by a number of mechanisms, including the
Constitution of Canada, court rulings, a federal Aboriginal Fisheries Strategy, as
well as land and sea settlement agreements (Harris and Millerd, 2010). The Supreme
Court of Canada affirmed the right to fish for sustenance, social and ceremonial
uses (R. v. Sparrow 1990). However, the Canadian government (supported by the
courts) takes the position that the rights must be proven case-by-case. The burden
of proof related to customary rights lies with the First Nations and until it is proven
in court, the rights remain “potential rights” (McNeil, 2008). For the Coast Salish
First Nations, the extraordinary expense of litigation has proven prohibitive to
bringing the shellfish issues to trial. In addition, when closures are associated with
health risks, the ability to exercise these rights is limited further. As a Department
of Fisheries and Oceans (BC) official noted, “The sport fishery regulation closes
Boundary Bay to shellfish harvesting. There is no exception for the Semiahmoo
band - it is a shellfish contamination closure and the shellfish is deemed unsafe for
anyone to consume”. However, many Coast Salish People disagree with this inter-
pretation: “Having someone tell us where we can harvest and when goes against
our inherent right to harvest”. The issue of who determines (who calculates) when
an area is open or closed is wrought with power dynamics and is at the heart of
ecocolonization. Since the federal regulatory agencies in Canada have limited funds
to conduct routine water quality and shellfish toxin testing, no one is able to harvest