The B.C. Court of Appeal has unanimously affirmed the right of five Nuu-chah-nulth First Nations to harvest and sell any species of fish in their territories (with the exception of geoduck clams). The Court of Appeal upheld a November 3, 2009 decision of the B.C. Supreme Court that recognized the Nuu-chah-nulth as having these rights, based on the central importance of fishing and trading fish throughout their history.
After reviewing the various sources of evidence, the three Court of Appeal Justices unanimously concluded that “all tend to be supportive of the judge’s finding that there was significant intertribal trade in early times at and before contact in fisheries products on the coast and across Vancouver Island by the ancestors of the respondents.”
The Court divided on the precise definition of the right to sell fish. The majority affirmed the trial Judge’s characterization that the Nuu-chah-nulth have a right to sell fish into the commercial marketplace, with the precise scale to be negotiated with Canada. The dissenting Justice found that the right should be characterized as being for a “moderate livelihood” only.
The Court of Appeal also agreed with the trial Judge that Canada’s management of the fisheries has not respected Nuu-chah-nulth’s aboriginal rights; the Court provided the parties one year to design a fishery that recognizes these rights.
The Canadian Government appealed the original decision, disputing the trial Judge’s findings that enough evidence exists to support the claim that Nuu-chah-nulth Nations have an aboriginal right to fish and sell fish commercially. Canada also argued that the trial Judge did not accurately apply the test previously set out by the Supreme Court of Canada for determining aboriginal rights.
The Court of Appeal did not allow Canada’s appeal, finding instead that there was ample evidence to support the trial judge’s findings, and that she did accurately apply the Supreme Court test.
“It was neither possible nor desirable for the trial judge to articulate the precise content of the Aboriginal rights at issue at the outset of her analysis. The respondents were entitled to plead their claim broadly. The judge properly placed primary focus on evidence about the pre-contact practice,” wrote Justice Hall for the Court of Appeal decision.
The Appeal Panel did agree with one part of Canada’s argument by not extending the aboriginal right to the modern geoduck fishery.
The case, which spanned much of the last decade, began in June of 2003 when Nuu-chah-nulth Nations filed a Writ of Summons against Canada and British Columbia. The claims of the Nations were based on Aboriginal rights to harvest and sell sea resources, Aboriginal title to fishing territories and fishing sites, and the unique obligations of the Crown arising through the reserve-creation process.
After Confederation, Canada encouraged the Nuu-chah-nulth to remain fishing people by allocating small fishing stations as reserves while denying the larger land claims of the Nations. Over the next hundred years, Canada decreased and excluded Nuu-chah-nulth participation in the West Coast fishery through government regulation.
“Once again the courts have recognized that fishing has always been integral to our economy and our culture. This latest ruling acknowledges our aboriginal right to share in the resources provided by the sea,” said NTC President Cliff Atleo Sr.
The decision comes after months of difficult negotiations between the Nations and the Department of Fisheries and Oceans Canada. Despite direction from the trial Judge to negotiate the details of a rights-based fishery, Canada has been reluctant to engage in a meaningful way.
“We look forward to implementing the Court’s decision in cooperation with DFO,” said Atleo. “We have always understood there will continue to be a shared fisheries regime on the West Coast of Vancouver Island, and look forward to creating a fishery that will benefit all west coast communities,” he said.
