Ottawa throws legal curve ball in fisheries case

The Supreme Court of Canada has called on the British Columbia Court of Appeal to reconsider its finding that five First Nations on Vancouver Island have a right to sell fish harvested in their traditional territories.

In a decision that has even legal experts scratching their heads, the Supreme Court has ordered the lower court to review a decision in Ahousaht vs Canada rendered on May 18, 2011, in light of the high court’s November 2011 Lax Kw’alaams decision, which determined that the North Coast Tsimshian nation did not have the right to sell fish.
“It’s certainly unusual,” said lawyer Matthew Kirchner of the North Vancouver law firm Ratcliff and Co., which handled both cases. “We’ve looked into it. There are perhaps a half-dozen cases that have been referred back in that way. I know of maybe three or four in B.C.”

In a landmark 2009 decision, the B.C. Supreme Court ruled that five Nuu-chah-nulth nations had demonstrated that their ancestors had practiced commerce in marine resources between nations prior to contact with Europeans in the late 18th century. The court set a time frame of two years for the five nations, which include Ahousaht, Ehattesaht, Mowachaht/Muchalaht, Hesquiaht and Tla-o-qui-aht, and the government of Canada to negotiate a way for them to engage in commercial fisheries without infringing the rights of other Canadians.
Canada appealed to the Court of Appeal to overturn the decision, but on May 18, 2011, the appeal court affirmed the Nuu-chah-nulth right to catch and sell fish, and extended the deadline to negotiate. Instead of negotiating, however, the federal government applied to the Supreme Court of Canada to overturn the case.

On March 29 this year, the high court refused to hear the appeal, but sent the case back to the B.C. Court of Appeal. Legal observers have pointed out that the Supreme Court ruling did not cite any errors in the lower court’s finding, but there was some concern that the trial judge in Ahousaht did not have an established method of analysis to establish fact. By law, the Supreme Court has now set the legal test a judge must apply to determine whether a First Nation has an aboriginal right to sell fish.
The Ahousaht and Lax Kw’alaams cases are unique in that they were the result of a direct application by First Nations people to address an infringement of their right to harvest their own resources. Most aboriginal rights cases that reach the Supreme Court of Canada stem from criminal prosecutions for violations of fisheries or hunting regulations.

The appeal court has been instructed to review the process used in Ahousaht to see if it meets the test set out by the Supreme Court in Lax Kw’alaams.

Nuu-chah-nulth Tribal Council president Cliff Atleo said the maneuver by Canada is frustrating.

“The two cases, in terms of the evidence, are quite different,” Atleo said.
In Ahousaht, the court heard extensive evidence from written sources at the time of contact, affirming that Nuu-chah-nulth nations had an established form of commerce which they readily adapted to build trade with the English, Spanish and later, the Americans.

By contrast, contact with the Tsimshian peoples of the North Coast was far more limited until the Hudson Bay Company established a fort at Port Simpson in 1837. At trial, the judge ruled that the Lax Kw’alaams had failed to demonstrate a pre-contact commerce in fish, other than a small trade in eulachon oil.

“So far, we haven’t applied a whole lot of what we considered a win in the B.C. Court of Appeal,” Atleo said, adding that from the Nuu-chah-nulth position, that is how they will continue to operate even as the courts continue to wrangle over the details. “As we speak, we have a win, and we have been instructed to deal with it.”
Atleo said Nuu-chah-nulth nations hope to conduct licensed and authorized salmon fisheries this summer, as is their Aboriginal right.

Two urban Nuu-chah-nulth First Nations located in Port Alberni, Tseshaht and Hupacasath, share the plentiful sockeye and chinook salmon runs on the Somass River, and have intermittently conducted an extra-legal “pilot” harvest and commercial sale of both species, in lieu of a long-term allocation. Both nations were originally parties to the Ahousaht litigation, but were removed at the request of the Crown shortly before the original decision was rendered in 2009.

“The Crown’s rationale was because there were overlapping territory issues between Tseshaht and Hupacasath,” said Chief Councillor Les Sam.

He said the two nations have no disagreements on the issue of aboriginal fishing rights, so the Crown’s tactic amounts to divide and conquer. That is despite the fact that the two nations each year take part in a fisheries roundtable process with the department of Fisheries and Oceans, the commercial and sports fishing sectors to hammer out an agreement on the lucrative sockeye and chinook fisheries. The roundtable has been held up as a model of cooperation for the entire B.C. coast, but to date it hasn’t earned any favors from Ottawa for Tseshaht and Hupacasath.

Sam said the continued uncertainty means nobody is able to make long-term plans to maximize the value of the resource, such as building storage and processing capacity.

“There has to be some sort of defined share of the resources for First Nations in their watersheds and in their systems. You cannot make long-term arrangements because someone will just pull the carpet from under you,” Sam said.

For that reason, Alberni Valley residents and the tens of thousands of tourists passing through town on their way to the tourist Meccas of Tofino and Ucluelet this summer will be able to purchase fresh-caught sockeye salmon at informal roadside stands. It has been going on for years, and it’s not quite legal, but since 2009, the local nations have endorsed the sales as a public assertion of their aboriginal right to sell fish.

“That’s a Direct Action item for the situation we’re in,” Sam said.

Atleo said the Nuu-chah-nulth nations have learned patience over the centuries and they have also become very experienced in dealing with the courts.

“I have no doubt we will be out harvesting our species, but it will be a slow building. We are going to move forward if Canada likes it or not,” he said.

Kirchner was scheduled to appear before Mr. Justice Hall of the B.C. Court of Appeal on April 17 to establish a timeline for the case. The court registry is currently setting hearing dates in late 2012 and early 2013.

Photo caption: Community fish days in the Somass River at Port Alberni allow for Tseshaht and Hupacasath member to catch and sell sockeye and chinook to the tourists and residents alike along the roadside along Highway 4.