By Lloyd Dolha
On November 3rd, the Supreme Court of British Columbia ruled that the Nuu-chah-nulth peoples (located on the west coast of Vancouver Island) have the right to commercially harvest and sell all species of fish within their traditional territorial waters. “Today, this decision confirms what we’ve known all along,” said Cliff Atleo Sr., president of the Nuu-chah-nulth Tribal Council. “We have been stewards of our ocean resources for hundreds of generations. And the government of Canada was wrong to push us aside in their attempts to prohibit our access to the sea resources our people depend upon.”
Aboriginal groups are celebrating the major legal victory in Ahousaht Indian Band and Nation v. Canada (Attorney-General). The case was filed in 2003 after years of treaty negotiations with the federal government and the province broke down under the British Columbia Treaty Commission (BCTC) process. The victory comes after more than a decade of legal preparations and 123 days in court. Madame Justice Nicole Garson wrote in her judgment: “At contact, the Nuu-chah-nulth were overwhelmingly a fishing people. They depended almost entirely on their harvest of the resources of the ocean and rivers to sustain themselves.” She pointed out that the Nuu-chah-nulth people were able to prove a long history of trading and selling fisheries resources since first contact with European explorers (Spanish explorer Juan Perez reached Nootka Sound in 1774).
The Nuu-chah-nulth First Nations argued the right to sell the sea resources of their territories as part of an Aboriginal title right to a portion of the seabed, claiming that the federal Fisheries Act failed to recognize and accommodate these rights. Justice Garson accepted almost all of the arguments put forward by the Nuu-chah-nulth and rejected almost all of Canada’s arguments. Justice Garson found that these rights stem from ancestral practice, and the court recognized the rights of five First Nations of the Nuu-chah-nulth (the Ahousaht, the Ehattesaht, the Mowachaht/Muchalaht, the Hesquiaht, and the Tla-o-qui-ah) to harvest and commercially sell any species of fish within their respective territorial waters, including the rivers, inlets, and sounds within the area claimed, extending approximately nine miles out into the open sea.
Garson declined to quantify limits, commenting that the right to sell fish in the commercial marketplace “does not extend to a modern industrial fishery or unrestricted rights of commercial scale” and that these rights may be subject to government infringement or restriction if justified. Garson also suggested that in order to accommodate the Nuu-chah-nulth Aboriginal rights, the federal government must depart from strict adherence to the Department of Fisheries and Oceans (DFO) policy of treating all commercial fishers, including the Nuu-chah-nulth, equally. Garson found that the “cumulative effect of Canada’s fishing regime” had restricted Nuu-chah-nulth “with respect to their ability to fish and their methods of fishing, including location, time, gear and species.” Garson said that dealing with the Nuu-chah-nulth as holders of constitutionally-protected fishing rights requires a different approach: “There is an important difference between balancing generalized aboriginal interests in participating in the commercial fishery with other competing interests on the one hand, and according recognition, however defined, to the constitutional right of these plaintiffs, on the other.” She granted the parties two years in which to consult and negotiate an acceptable regulatory regime. Failing negotiations, the matter will return to the courts for a determination of whether Canada can justify infringements on the Nuu-chah-nulth’s rights.
The First Nations Leadership Council (comprised of the First Nations Summit, the Union of B.C. Indian Chiefs, and the B.C. region of the Assembly of First Nations) applauded the decision. “In the past, the federal Department of Fisheries and Oceans (DFO) has worked very quickly to implement court decisions that suited their own policies,” said Grand Chief Doug Kelly. “We fully expect that federal and provincial officials will now heed the directive of the court to immediately sit down with Nuu-chah-nulth leaders and discuss and negotiate implementation of the decision.”
The First Nations Fisheries Council (FNFC) also urged Canada and British Columbia to implement new a management regime collaboratively with the Nuu-chah-nulth.“This court case represents an opportunity,” said Michelle Corfield, member of the FNFC and the Nuu-chah-nulth Tribal Council. “Canada and British Columbia First Nations have clear direction from the courts to move forward to negotiate solutions that will address fundamental issues that First Nations have been raising with Fisheries and Oceans Canada for years.”
Others were less impressed with the significance of the victory. Ahousaht Chief John Frank said the Ahousaht had argued for a 100-mile offshore boundary limit. “A win isn’t a win until it’s written in stone,” said Chief Frank. “How do you negotiate a win? It’s really not a win yet.” He asked, “What about our tuna about 100 miles off-shore? What about our black cod, our ocean perch? Those were always in our toolbox, our way of life.”
The federal government has yet to announce whether it will appeal the decision. Shawn Robins, communications director for the B.C. Attorney-General said the provincial government is reviewing the judgment and is reserving comment. “We have two years to put together a plan,” said Chief Frank. “I’m hoping they won’t contest it.”