Thursday, October 22, 2009

Treaty - getting it is only the first step

It's an interesting question. Having a treaty that protects some resource is one thing. Having that treaty enacted so that the resource is actually protected - is another. Is it any wonder that indigenous people have suspicion with treaties?

Puget Sound sunset
"In 1974 a ruling was given by U.S. District Judge George Boldt that Puget Sound's tribes hold treaty rights to half the region's catch of the fish."
"Another judge, today,  is dealing with Boldt's unfinished business — presiding over a U.S. District Court trial in Seattle this month about the state's obligation to make sure the fish survive in perpetuity."
"No matter the outcome, taxpayers this time may be on the hook for $1.5 billion or more to repair clogged and broken road culverts that prevent salmon from swimming upstream to reach spawning beds."

The choice seem stark. If there is a treaty then that treaty should be effected in such a way that the outcomes of that treaty are realised. The treaty gives rights to the tribe of half the region's fish. The culvets stop those fish spawning. The culvets need to be fixed so that the fish can spawn, so that the tribe can realise the potential of the resource (and treaty) and thus create positive outcomes for them and their communities and society as a whole.

"Even more significant might be the groundwork laid for future lawsuits over other insults to salmon habitat, from stormwater pollution to wetlands to housing developments.

"The judge has already found that there's a treaty right to protect fish habitat," said Robert Anderson, director of the University of Washington's Native American Law Center. The question now is "how far the federal courts are willing to go to compel that result.""
"More than 1,000 culverts between the Columbia River and British Columbia, most of them owned by the Washington Department of Transportation, are designed so poorly or in such ill repair that they block or limit access by fish to hundreds of miles of streams.

While the state slowly has been working to fix them, U.S. District Judge Ricardo Martinez ruled for the first time in 2007 that treaty rights required it."
The state argued in negotiations that it didn't have the ability to bind future Legislatures, said Marty Brown, Gov. Chris Gregoire's legislative director. But he also said the state's holistic approach to salmon recovery showed fixing culverts wasn't always the most ecologically important thing to do, especially since cities, counties and federal agencies — including national forests — often had hundreds of culverts blocking the same streams.

"We're just as concerned as the tribes about Puget Sound and habitat restoration," Brown said, "but we want to make sure we're talking about the whole ecology of the thing."

It sounds reasonable but is it.

"The tribes say the state knew about problem culverts for 60 years but kept building them and even now fixes only a few dozen in a good year. Given the tribes' successful record in these cases, some outside observers suspect the state may in part be using the courts for political cover. The state could appeal if it loses, putting off binding commitments a few more years. And spending the money ultimately "might be a lot easier if they were under a court order," said Michael Blumm, an Indian law expert with Lewis & Clark Law School in Portland."
Personally I am not a big fan of treatys. They are often one-sided and have fish-hooks galore! But if there is a treaty then it should be enacted to give realisation to the outcomes of that treaty - now and into the future. And this case is interesting from that perspective. The judges have said that there is an obligation to protect the fisheries and that that obligation extends to the future ability of the treaty partner to be able to also reap the outcome of the treaty obligation.

Now the lawyers will sort this out but i wonder about the implications of that style of ruling on the treatys and agreements we have here.

Hat tip - Native American Legal Update

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