Nuu-chah-nulth Tribal Council seeks intervenor status in T’aak-wiihak court case appeal

Denise Titian, September 10, 2018

NTC President Judith Sayers and Vice-President Andy Callicum address a crowd outside the BC Supreme Court in Vancouver in April after the Justification Trial ruling for the Ahousaht et al. case was released. (Eric Plummer photo)

West Coast Vancouver Island — 

The Nuu-chah-nulth Tribal Council has announced that it will seek BC Court of Appeal consent to intervene in the T’aaq-wiihak Fisheries court case, which is currently seeking a ruling on the government’s past and ongoing infringement of five Nuu-chah-nulth nations’ commercial fishing rights.

This is the latest in a string of court battles between the five Nuu-chah-nulth nations (Ahousaht, Ehattesaht/Chinekintaht, Hesquiaht, Tla-o-qui-aht and Mowachaht/Muchalaht) and Canada.

It all started in 2001 at the Nuu-chah-nulth treaty table when the negotiating parties came to an impasse on fisheries issues.

Several Nuu-chah-nulth Nations decided to pursue legal action to prove in front of a judge what their Aboriginal fishing rights are. The five nations took Canada to court to prove once and for all their right to fish, both for food and for making a living.

In 2009 the nations won their case after the BC Supreme Court ruled that T’aaq-wiihak fishers have an Aboriginal right to catch and sell all species of fish traditionally harvested in their territories.

Over the following years the nations met regularly with federal government fisheries staff to implement the 2009 ruling but the two-year deadline, imposed by the judge, had passed and very little, if any, progress had been made in getting T’aak-wiihak fishermen out on the water.

By 2016, the rights of T’aaq-wiihak fishers had still not been implemented.

The nations took the case back to court to determine Canada’s past and ongoing infringement of their rights. Known as the Justification Trial, the case was heard in 2016 with the decision, by another judge, handed down in April of this year.

In that decision the court applied parameters that limit T’aak-wiihak’s rights with respect to their commercial fishery. Justice Humphries, for the first time, characterized the Nuu-chah-nulth right to a commercial fishery as a “small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-(nautical) mile strip from shore, using small, low-cost boats with limited technology and restricted catching power and aimed at wide community participation.”

“Justice Humphries rewrote the definition of the right in a trial that was about the justification of DFO management through laws and policies,” said NTC President Judith Sayers. “Courts have typically determined the right in one case and justification and infringement in another.”

Sayers added that the Nuu-chah-nulth Tribal Council cannot allow this to happen as it will open the door to other justices revisiting and reinterpreting rights that are already proven in court.

By intervening in the case the NTC nations intend to provide their views on the court’s new interpretation of the T’aaq-wiihak right to a commercial fishery,

“Such a re-characterization of the right from the original decision is unacceptable, and is in fact, a ‘frozen rights’ argument that has been rejected at the Supreme Court of Canada,” said NTC Vice-President Andy Callicum.  

“Courts have previously stated that Aboriginal rights should be interpreted ‘liberally and generously,’ and this decision marks a very different approach,” he added.

The appeal is scheduled to be heard February 11-15, 2019 at the B.C. Court of Appeal in Vancouver.