Shrewd observer helps Nuu-chah-nulth case

It was the words of a slave that helped tip the scales of justice in favor of the Nuu-chah-nulth in their fisheries litigation case in British Columbia’s Supreme Court.
The court has recognized the rights of five First Nation communities—Ahousaht, Hesquiaht, Mowachaht/Muchalaht, Tla-o-qui-aht and Ehattesaht—on Vancouver Island to fish any species of fish and sell it in the commercial marketplace.

Justice Nicole Garson of the B.C. Supreme Court brought down her decision on Nov. 3. She not only relied on the testimony of Nuu-chah-nulth fishers, Elders, researchers and experts in the history of the fisheries resource regime on the West Coast, put in evidence over 123 days in court, but she put stock in the memoirs of the slave John Jewitt, who was held captive by the Mowachaht hereditary chief Maquinna for three years from 1803 to 1805.The Canadian Encyclopedia describes Jewitt as a shrewd observer. His memoir is considered a “classic of captivity literature.”

The Englishman was a blacksmith who was one of two survivors of a brutal battle between the Mowachaht and the crew of a British trading vessel called the Boston. The battle was the result of a trading relationship gone bad.
Maquinna decided Jewitt could be useful and kept him in his household. Jewitt recounted in his memoir 92 occasions when the ancestors of the modern-day Nuu-chah-nulth traded fish with people up and down Vancouver Island, providing evidence that the Nuu-chah-nulth had an established economy based on the fish resources in their territory.

Other historical documents proved that this economy was established before contact with Europeans, which Justice Garson found was in 1774 when the Spanish explorer Juan Perez sailed into the territory. He anchored six miles off Estevan Point and was greeted by 15 canoes of Nuu-chah-nulth people who immediately began the business of trading with Perez’s crew.

Captain James Cook was another European whose sailing logs lent credibility to the Nuu-chah-nulth claim.
“What is remarkably consistent about the Explorer Records,” reads the decision, “is the evidence of immediate and persistent efforts by all the Nuu-chah-nulth people, the Europeans encountered, to begin trading.”

The judge found longstanding trade networks both in a north/south direction along the coast and over land through a variety of trade routes. That’s why she found that the right to fish included not only seaward out nine miles, but inland in the rivers, inlets and sounds of the nations’ territories.

During the trial, Canada and the province argued against the Nuu-chah-nulth’s assertion of their commercial right, at one time even arguing against the Nuu-chah-nulth’s very existence.

To prove the commercial right, the modern-day Nuu-chah-nulth had to provide evidence to connect themselves to their pre-contact ancestors. Canada wanted the judge to set a very high standard of proof in this regard. The 200 years since contact had seen a number of Nuu-chah-nulth family amalgamations, either through necessity to access resources in another family’s territory, or through war, where a chief would absorb the territory of the conquered.

Canada argued that attainment of territory by conquest was an unjust act, so that territory should be disregarded in dealing with the continuity question in the modern claim. The judge rejected that argument.

The Nuu-chah-nulth sang and danced on the courthouse steps after learning of their win.

“I’m so excited,” said Ahousaht Chief Councillor John O. Frank. He said the win returned the Nuu-chah-nulth’s independence so they could begin to make their communities great again.

The Hesquiaht sang a victory song, which told of a time long ago when the communities were deciding to share a whale that had landed on the beach between Nuu-chah-nulth territories. It wasn’t a song about winning or losing, but sharing, said Chief Councillor Joe Tom, and that’s what Canada will have to do now.

Justice Garson decided that Canada’s regulatory regime had squeezed the Nuu-chah-nulth out of the fisheries, an occupation that was an “overwhelming feature” of the Nuu-chah-nulth pre-contact life. She ruled that while the right is limited, in that it doesn’t include large industrial fishing, it’s more than roadside sales. Canada will now have two years to negotiate a system that will include a place in the commercial fishery for the Nuu-chah-nulth nations, which number 14 up and down the West Coast. Only five were allowed to continue in the case. Nations with overlapping boundary issues were placed in a second phase of the trial, and five nations have negotiated a treaty called the Maa-nulth Final Agreement that received Royal Assent in June. Implementation date is April 1, 2011.

The Maa-nulth agreement has chapters that deal with the nations’ fishing rights, but they received less than what is contained in the fisheries litigation decision. The treaty though has a “Me Too” clause attached, and the Maa-nulth nations are reaching out to Canada to expand their settlement. Canada has until Dec. 3 to appeal the decision.