Another win in fisheries litigation for Nuu-chah-nulth nations

The Nuu-chah-nulth people have been anxiously awaiting the decision in the Canadian government’s appeal of their groundbreaking fisheries litigation win.

The justices of BC’s Court of Appeal didn’t disappoint when they sided with the decision of Justice Nicole Garson of the BC Supreme Court who ruled that Nuu-chah-nulth have an Aboriginal right to a commercial fishery.

The court rejected Canada’s arguments in its decision, which came down in the morning of May 18.

The only negative for the Nuu-chah-nulth in the decision was that the court sided with the intervenor geoduck lobby, The Underwater Harvesters Research Society, which argued that the lucrative geoduck clam harvest was a modern fishery, not an ancient trade of the west coast peoples.

“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 Nuu-chah-nulth Tribal Council President Cliff Atleo Sr.

The Nuu-chah-nulth trial decision on Nov. 3, 2009 by Justice Nicole Garson acknowledged that Nuu-chah-nulth had an Aboriginal right to fish and sell fish of any species (excluding clams) into the commercial marketplace based on their pre-contact trading practices along the west coast of Vancouver Island.

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, however, was divided on the definition of the right to sell fish, with the majority affirming 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 case began in June 2003 and spanned more than 100 days in court. Judge Garson heard from many experts, including elders from the community. One sang a traditional song to her. The court even traveled to the remote First Nation community of Ahousaht to hear testimony.

Justice Garson gave the government of Canada through its department of Fisheries and Oceans two years to negotiate a fishery that included Nuu-chah-nulth rights-based commercial access. The court of appeal has allowed one year.

The Nuu-chah-nulth, however, complain that negotiations so far have been “difficult” and Canada has been reluctant to engage “in a meaningful way.”

The Nuu-chah-nulth now look forward to more productive talks, said Nuu-chah-nulth Tribal Council President Cliff Atleo. The appeals court has given one year to get the job done.

“We look forward to implementing the Court’s decision in cooperation with DFO,” he said. “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.

To say the Nuu-chah-nulth people were happy with the appeal result would be an understatement.† Facebook lit up with the news as people passed along a press release prepared after the decision.

“Yes! It was worth the sitting we did at the courthouse,” said Julia Eaton who devoted herself to attending the long days at trial in Vancouver. “We are very, very happy with the outcome. Thanks to all who supported this cause.”

“It’s about time that the governments of today are being challenged and are finding out what it is like to be pushed back,” said Nuu-chah-nulth member George Frank.

Others were excited to get out onto the water.

“Where may we get a permit or who does the accounting for landings ? What are the stipulations?,” wrote another.
Those issues now must be sorted through. Five communities are taking the lead on the case and have formed a negotiation committee. Whether DFO chooses to engage or appeal to the Supreme Court of Canada remains unknown.

Photo Caption: Representatives of the Nuu-chah-nulth nations drummed on the courthouse steps on the day Justice Nicole Garson of the BC Supreme Court acknowledge their right to a commercial fishery on Nov. 3, 2009. On may 18 the BC Court of Appeal upheld Garson’s ruling.