06/05/2012 02:10 EDT | Updated 08/05/2012 05:12 EDT

Appeal court upholds protest fishery fine for B.C. Conservative party leader

VANCOUVER - British Columbia's top court has dismissed an appeal by B.C. Conservative party Leader John Cummins over a fine for taking part a protest fishery 10 years ago.

Cummins was fined $300 and was among nearly 50 people who dropped their nets during an aboriginal-only fishery in the Fraser River.

B.C. Appeal Court Justice Mary Newbury said in her decision that the protesters would be better off trying to advance their position in the political arena, not the courts.

"I describe the appellants as determined because this litigation is at least the fourth occasion on which these appellants, or many of these appellants, have challenged the management and administration of the commercial fishery in British Columbia," Newbury said in her written reasons, released Tuesday.

Cummins, a former Tory MP, said he tried the political route for 20 years but a divisive government policy favours aboriginals who can fish for food, social and ceremonial reasons and sell their catch illegally.

"We wouldn't have gone and sought redress to the courts," he said. "But the fact of the matter is we attempted right from the get-go, right from the beginning of these separate native commercial fisheries, to seek a political solution."

"We weren't trying to hide anything, we were wanting to get charged, hoping that the courts would do what the politicians hadn't done, that is to reign in an out-of-control food, social and ceremonial fishery."

Cummins, a fisherman who still has a licence for the Fraser River and has previously been fined $200 for an illegal protest, said the objective was to create peace on the river as conflict flared among the two groups of fishermen.

He maintains Fisheries Department officials turn a blind eye when it comes to policing aboriginals who catch thousands more salmon than they're allowed.

Cummins said he wants the Supreme Court of Canada to weigh in on the issue because non-native commercial fishermen can't compete and their charter rights are being violated over unfair treatment.

The former federal Tory MP and commercial fisherman said he's concerned that proposed amendments to the Fisheries Act as set out in an omnibus budget bill will further erode those rights.

Last month, he sent a letter to Prime Minister Stephen Harper warning that the livelihood of fishing communities across Canada will be threatened by the proposed expansion of First Nations fisheries as the government "caves in" to illegal behaviour.

"I made it very clear to him, our upset with the amendments that are contained in Bill C-38," Cummins said, adding the word subsistence has been added to the current policy, in addition to allowing aboriginals to catch fish for food, social and ceremonial reasons.

"They're expanding that definition so there is no limit as to how many fish are caught under those licences because to draw the line for subsistence is virtually impossible," he said.

"They put the word (subsistence) in there because they don't want to be called upon to enforce the law. They know that if they try to there's going to be a backlash."

The Cohen Commission, appointed by the federal government to look into the 2009 collapse of the Fraser River sockeye salmon run, heard last year that 97 per cent of fish caught under food, social and ceremonial licences is being sold illegally.

Phil Eidsvik, who represented the appellants and is a spokesman for the B.C. Fisheries Survival Coalition, said the appeal court decision means commercial fishermen will continue to be treated like "second-class Canadians" because of a fishery based on "racial segregation."

"We had 10 years of chaos in the fishery before the protests were mounted on this issue and it's a little disappointing for the court to suggest there's a political alternative," he said.

"We think the (appeal) court's wrong," he said. "We are truly the disposable Canadians, commercial fishermen are, in British Columbia."