Court sides with West Coast natives to sell fish

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.

  • May. 24, 2011 9:00 a.m.

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 recently upheld a November 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 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 federal 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 the government’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 court 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 2003 when Nuu-chah-nulth Nations filed a summons against Canada and B.C. The claims 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.

 

Just Posted

Campbell River man in medically-induced coma after serious dirt bike incident

GoFundMe campaign raised more than $3,000 by Monday afternoon

Campbell River’s Greenway Loop event attracts hundreds of red-clad supporters

More than 100 people showed up to ride or walk the Greenway Loop or part of it

Lively and festive Pride Day at Campbell River’s Spirit Square

Campbell River’s Pride Festival attracted a good crowd to a lively day… Continue reading

Cops, Pops, and Pizza serves up smiles and support for Special Olympics BC

Campbell River RCMP and Special Olympians join up with local Boston Pizza

Video shows fireworks shot at swan in Alberta

Alberta Fish and Wildlife is investigating the incident in Grande Prairie

WITH VIDEO: Two endangered marmots released on Vancouver Island

With three new pups born in May, two more Vancouver Island Marmots… Continue reading

‘Text neck’ causing bone spurs to grow from millennials’ skulls, researchers say

Technology use from early childhood causing abnormal bone growths in 41 per cent of young adults

Surrey RCMP raises Pride flag amid din of protesters

There were about 30 protesters on either side, and 20 Mounties doing crowd control

B.C. teen killed by fallen tree on field trip remembered as hero

13-year-old Tai Caverhill was the first to spot the tree falling and warned his friends

Should B.C. get rid of Daylight Saving Time?

The province wants to know, as state governments down south make the move

Air Canada reviewing how crew left sleeping passenger on parked plane

In a Facebook post, the woman said she woke up ‘all alone’ on a ‘cold dark’ aircraft

Canadians crash out of Women’s World Cup in 0-1 loss to Sweden

Canada missed a chance to tie the game on a penalty shot

Four-year-old boy assaulted at B.C. soccer game

It happened at a weekend tournament in Ashcroft

Most Read