On July 2, 2013, the BC Court of Appeal reaffirmed its earlier ruling recognizing the commercial fishing rights of the five Nuu-chah-nulth First Nations in Ahousaht et al vs. Canada, finally ending a ten-year court battle over the recognition of those rights. “Having reconsidered the reasons of the trial judge in light of in light of the reasons of the Supreme Court of Canada in Lax Kw’alaams, I do not consider that any different result from the decision of the majority of this Court in 2011 is appropriate,” wrote Justice John Hall.
Last fall, the Supreme Court of Canada (SCC) rejected the federal government’s request to appeal, sending the case back to the BC Court of Appeal for reconsideration. The Court of Appeal reviewed the Ahousaht case based on the Lax Kw’alaams ruling where the trial judge found that apart from eulachon grease, the Lax Kw’alaams people did not trade fish on a large economic scale. In the original 2009 decision in Ahousaht, the trial judge found that the economic trade in fish was historically a defining feature of Nuu-chah-nulth culture. This trade happened regularly, in substantial quantities, and was integral to Nuu-chah-nulth cultural practices. This key difference set the Nuu-chah-nulth case in Ahousaht apart from the Lax Kw’alaams case. Lawyers argued that the original 2009 decision of the BC Supreme Court and the original 2011 ruling of the BC Court of Appeal properly followed the tests set out by the SCC in Lax Kw’alaams, Vanderpeet, and other leading SCC decisions. The BC Court of Appeal agreed, and the three judge panel unanimously reconfirmed that the five Nuu-chah-nulth First Nations (Ahousaht, Ehattesaht/Chinehkint, Hesquiaht, Mowachaht/Muchalaht, and Tla-o-qui-aht) have Aboriginal rights to harvest and sell all species of fish. “I do not know what more [the Trial Judge] could have done to demonstrate that she appreciated the requirements set forth by the Supreme Court of Canada in Vanderpeet and reaffirmed in Lax Kw’alaams.” wrote the panel.
“We are pleased that the BC Court of Appeal has again confirmed the rights of Nuu-chah-nulth Nations to earn a living from the sea resources in our territories,” said Clifford Atleo Sr., president of the Nuu-chah-nulth Tribal Council. “We expect the government of Canada, through DFO, to now come to the negotiating table in a much more substantive way to work with the Nuu-chah-nulth to implement these decisions, as the courts have instructed Canada.”
The case began in 2003 when the Nuu-chah-nulth filed a writ of summons against Canada and British Columbia, arguing their claims to a commercial harvest were based on their Aboriginal rights to harvest and sell sea resources, based on their Aboriginal title to fishing territories and fishing sites and the unique obligations of the Crown arising from the establishment of reserves for the Nuu-chah-nulth First Nations. After Confederation, the federal government encouraged the Nuu-chah-nulth to remain a fishing people by allocating small fishing stations as reserves while denying the larger land claims of the Nuu-chah-nulth. Over the next hundred years, the federal government decreased and excluded the Nuu-chah-nulth’s participation in the west coast fishery through government policies and regulation.
The ruling represents the third time the BC courts have recognized the Nuu-chah-nulth’s Aboriginal rights to a commercial fishery of sea resources. The decision follows 3 ½ years of difficult negotiations between the Nuu-chah-nulth and the Department of Fisheries and Oceans. The Nuu-chah-nulth say the federal government has been reluctant to engage in negotiations in a meaningful way and hope this latest ruling will provide the impetus to set negotiations and the reconciliation of the issue on track. “DFO needs a proper mandate from the [federal] government that respects the court decisions and must stop the stall and delay tactics,” said Cliff Atleo. “Canada needs to get serious now that they have lost yet another attempt at over-turning the recognition of Nuu-chah-nulth fishing rights.”
AFN National Chief Shawn Atleo is from Ahousaht where the case originated and was a leading plaintiff in the original legal action that began over 10 years ago. “Once again the courts have upheld our inherent rights to a commercial fishery as we Nuu-chah-nulth have fully demonstrated that both harvesting and selling fish were and continue to be integral to our society and economy. The Crown’s repeated attempts to appeal this case have all failed. We must end this legal wrangling and delay and get on with the recognition and implementation of our rights.” But Cliff Atleo was less optimistic about future negotiations, noting that the Nuu-chah-nulth leadership is developing alternative strategies to negotiations. “The fight never stops. All we’re trying to do is get back the life we had. Whatever happens, we’re going back on the water. Some how. Some way,” he said.
