Nuu-chah-nulth have aboriginal right to harvest and sell fish, B.C. Supreme Court rules

FiveNuu-chah-nulth First Nations on Vancouver Island are celebrating a B.C. Supreme Court ruling that confirms their aboriginal right to harvest and sell any species of fish from their traditional territories.

The Ehattesaht, Mowachaht/Muchalaht, Hesquiaht, Ahousaht, and Tla-o-qui-aht bands on the west coast of the island had filed a lawsuit against the federal and provincial governments in 2003, arguing Canada’s fisheries regime infringes their right to fish on a commercial basis and largely excludes them from the commercial fishery.

“The plaintiffs have aboriginal rights to fish for any species of fish in the environs of their territories and to sell fish,” Justice Nicole J. Garson concluded in a decision released today (November 3).

Garson noted that doesn’t mean the First Nations have an “unrestricted right to the commercial sale of fish”.

The judge also stated: “I conclude that the plaintiffs have established that the Fisheries Act, as well as the regulations and policies promulgated thereunder, prima facie infringe their aboriginal rights to fish and to sell fish, with the exception of their rights to harvest clams and to fish for FSC [food, social, and ceremonial] purposes.”

Garson dismissed the Nuu-chah-nulth nations’ assertion that they hold aboriginal title to the fishing territories within their traditional territories.

The Canadian government had disputed the bands' claims to aboriginal rights and title, arguing they were not backed by law or evidence.

Garson gave the parties two years to negotiate a regulatory regime that recognizes the Nuu-chah-nulth’s aboriginal right to fish.

“The parties now have the opportunity to consult and negotiate the manner in which the plaintiffs’ aboriginal rights to fish and to sell fish can be accommodated and exercised without jeopardizing Canada’s legislative objectives and societal interests in regulating the fishery,” Garson wrote. “To the limited extent made necessary by its constitutional jurisdiction, I assume that British Columbia will participate in such negotiations.”

The decision notes the five bands had a combined population of 4,341 people (1,353 on-reserve and 2,994 off-reserve) in 2006.

You can follow Stephen Hui on Twitter at twitter.com/stephenhui.

Comments (29) Add New Comment
ABOUT TIME
So slow...how many Indigenous Peoples have gone to jail exercising their right to hunt and fish? Before all the simpletons expouse thier ignorance on Indigenous Peoples and our Title and Rights issue, do your self a favour and google the Canadain Constitution and look to the Royal Proclamation of 1763, more specifically the intent that the Indigenous Nations and the New Comers would live in equal partnership. My Indigenous hero is a warrior named Pontiac...yes the name of the car...he was the cause that this Proclamation came about to be...anyways when Canada was created this Proclamation was put into the new Constitution, and when Canada repatriated the Constitution and ensured it was put into the Constitution Act 1982...one small victory for us...Is beyond me why the Indian Act chiefs here in British Columbia continue to "negotiate treaties"...when we have a better chance through the court system, regardless of how slow the courts may be?
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R. Handfield
First Nations people continually argue that they have traditional rights to hunt and fish regardless of Canadian laws. I would be more inclined to support their position if they hunted and fished in the traditional manner but in fact they use totally non-traditional methods: power boats, large nets, high-powered rifles, etc. Nothing at all traditional about these!
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spartacus
Canadian citizens constantly argue the issue of 1st nations traditional harvesting methods many decades ago as opposed to 1st nations utilizing modern day technological equipment. How we harvest our resources today is not the issue but the aboriginal rights and title itself that was alienated by your Gov'ts. R.Handfield, had the Fed-Prov Gov'ts taken that kind of attitude to the Supreme Court they would have been laughed right out of Court room. Furthermore your beliefs that a minority nation should remain as they were 100-200 yrs ago with no right to adapt or progress technologically is ludicrous and outright stupidity.
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old school colonialism
Your logic is flawed, trying to suggest that we are a static people with a static culture, meanwhile all other cultures are allowed to evolve...is that what your
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Paul Flynn
Yes, just as they have the rights to millions of dollars of free hand-outs of tax-payer money. Just as they have the rights to be a three-time drunk driver and serve no jail time. Just as they have the rights to hunt at night in the dark. Just as they have the rights..................
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Wawmeesh G. Hamilton
The Canadian understanding of aboriginal rights is rooted in English common law, and cases like Sparrow and Delgamuukx provide a wealth of information pertaining to those rights and their evolvement over time. Rights are not confined within the traditions of the time they were forged in and aren't a function of class or technology. No culture is static. Just as peoples and rights evolve, so to do the technological means that are employed when exercising those rights. Freedom of speech, for instance, was won in the era of quilled pen and parchment, but citizens don't keep with that tradition by using the same today. Traditionally, the right to vote applied to just men from the upper classes, and excluded women and minorities. Aboriginal rights didn't stop just because their technologies evolved.
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Gitxsan
Mr Handfield...
That's exactly the view that has stifled our progress all these years. Why is the onus on First Nations to "turn back the clock"?. Perhaps the rest of Canada can enjoy special hunting rights as long as they use muzzle-loading black powder, lead ball rifles?
What IS and continues to be traditional today, is the respect for the environment, and the sharing of everything that is caught with the entire community.
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STATIC iNDIANS?
Handfield are you suggesting that as Indigenous People we are acceptable to you if we our culture remains frozen in time, what time exactly are you referring to? How many other people and cultures do you apply this to?
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MK-KIDS
A thoughtful comment About Time & thanks for sharing your ignorance R Handfield. Most folks are unaware of the history of this province which is so different from most of Canada. Treaties for the most part were not settled in BC with First Nations, the few Douglas Treaties that were signed in the 18oo's guaranteed the right to fish as formerly. The Supreme Court of Canada has ruled that these rights are not static in time but evolve with the times and technology. The death of the fisheries on the West Coast is due entirely to the mismanagement of the fishery by DFO and commercial fishers, not First Nations. They were stewards of the lands and waters here since the beginning of time and in the absence of treaties, First nations still hold aboriginal rights and title to the lands and waters of their traditional territories - all of BC.
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Liberal Whitepaper
Being a good university-thinking leftist, I was raised to believe that the First Nations had some inherent ability to be stewards of the land. This i before I visited reserves and observed the clearcuts, strip mining, and gillnetting that somehow passes as traditional harvesting techniques.

Luckily, my kids hated fish and won't miss it at all.
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PERSPECTIVE IS EVERYTHING
Paul Flynn...it must be difficult for you to exist day to day with your current perspective...such resentment, anger, and ignorance...News Flash...Canada stole everything from the Indigenous People and has prospered to this day from its colonial practices.Much like other neocolonial practices (Africa for example) the colonizer does not want the colonized to reclaim their former position of strengh, otherwise they would be challenged for the ongoing exploitation. Your comments are so way out there, but I believe there is hope for you and the handful of people that think like you...look for your own answers...do some research, follow up on some of the issues raised here...and take your negative perspective challenge it...and then you can be thankful once you realize why you have been indoctrine with your current perspective...those days are fading...but I believe you can do it...JUST DO IT!
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beelzebub
The natives have been selling their salmon for years. All this decision does is affirm it. All you had to do was walk down to various docks and buy fish. Please. We built a better mousetrap years ago while the Natives got left behind and are now trying to play easy catch up through the ineffective legal system.
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D Dhaka
I belive that Lucy, who would be of African descent is the rightfull owner of the Earth and it's resources. We her children could argue that every grain of sand should be divided equally. Also, every country has allowed immigration would these people want us to believe no one other than them should be here.
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impoverished
our people have been starving to long and left out of main stream society, now maybe we can afford to buy our children shoes
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OWNERSHIP
As Indigenous People, we view our relationships as stewarts of our territories, with a collective responsibility to current and future generations, it is the imposition of British Common Law which imposes individual property title and rights on us, this is fundamentally against our collective responsibility to land and resources. Nobody owns the land...this is the fallacy of capitalistic title and rights, we all have a right to it and a responsibility to maintain the Earth for future generations,
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Liberal Whitepaper
Hey, impoverished.

Your people were going to be mainstreamed by the liberal whitepaper. Your chiefs (who were going to have to get jobs) opposed it, and the courts have gone along. Now you get to be left out of the mainstream forever. But, look at the bright side: you have your distinct cultural identity! The proper-thinking people here can tell you that it all flows from that. You don't need mobility rights that would allow you to transfer your status from a hopeless place like Yellow Quill to a great reserve like Osoyoos. What you especially do not need is transparency and democracy in the transfer and accounting of federal monies earmarked for child care, health care, housing, and education. That is just colonialism!
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phony whitepaper
From reading your comments I find it difficult to believe you ever where a lefty...let alone university student...certaintly not in this country anyways. You are right about the 1969 White Paper, it did galvanize the Indigenous population against our colonizer to form a resistance against the assimilation policy. I and many others will never be assimilated into the the lies of capitalism, look around you and see the pain it has and continues to create around this planet we call Mother Earth...In fact more of the Canadian population are beginning to see that this model of economics is unsustainable, and are beginning to appreciate that we all have a responsibilty to change the way we think and act. Certainly perpetuating tired old divisive rhetoric is not contributing to meaningful dialogue or moving us forward in the interest of ourselves and the planet.We could chat about fiscal and human capacity development but i do not think you are really interested in that at this moment.
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Liberal Whitepaper
I did so go to university. They taught me to despise bantustans in South Africa; why would I like the ones at home? While you're changing the subject to the perils of capitalism, the topic remains the sharing of fish stocks between different levels of governance, which is merely an illustration of the tension that arises because the First Nations want a semblance of sovereignty. It sounds great and is backed up by Sparrow and Delgamuu, but it is ultimately a continuation of the fiduciary relationship that has worked to pretty much nobody's benefit other than the chiefs and the largely non-native lawyers and specialists who make their living from perpetuating our differences. We have tried being semi-distinct for 400 years -- can you honestly say it has been good for Indians? We know the depressing stats, so, no. Therefore the corrective, the obvious one, is assimilation -- the Whitepaper model or some other -- that brings the political reality of integration into the present, where "our" people are already fundamentally mixed at the genetic level. My family, for example, is Metis, who's isn't? We aren't "team white" vs "team FN", we are all in this together (nearly said we are all Canucks). Let's help the kids to succeed and not make some of them stigmatized by being in a weird, artificial minority quasi-administrative territory.
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confused whitepaper
If you understand the Royal Proclamation of 1763, which is in the Canadian Constutition, you will understand how Canada created the Dept. of Indian Affairs, with its reservations and membership criteria. You will also notice why Canada created laws to prevent Indigenous People from harvesting their traditional food supply. This court decision affirms our right to fish, and therefore are right to reconstitute one aspect of our economy. This government also created Indian Act First Nations, which is really the ongoing process of assimilation. Where we once where 28 tribes here in British Columbia, we are now over 200 First Nations, how convienent, divide and conquer continues to work in this day. These Chiefs are paid by the government and therefore are government employees without the benefits of their federal counterparts (pensions and so forth).Citizenship-membership, race -ethnicity...ultimately only are respective tribes can define who is and is not a citizen of our tribes, another case Canada just lost...this court case is one small victory for Indigenous Peoples, the beginning of rebuilding our economies...there is lots to do yet...but assimilation is not on most of our agendas despite the current "treaty process"...which turns are 200 plus first nations into quasi municipalities...which are subject to both federal and provincial jurisdiction. I hope you can see the connection i have shared with you.
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Liberal Whitepaper
I'm no fan of DIAND, getting rid of it is the point of the Liberal Whitepaper.

As for Indigenous People having the right to fish, you always had the right to fish, as much as anyone has the right to fish, or for that matter to become doctors, lawyers, engineers, and anonymous pundits on Straight.com. What you want is a separate right to fish. This would make sense if we were actually citizens of separate countries, but we aren't. In fact, we have merged genetically due to centuries of intermarriage. I find it obvious that our governance should reflect that fact rather than perpetuate an Otherness that is idealized, romanticized, but fundamentally untrue and arbitrarily denied to the Metis and, for that matter, every other so-called minority. But, that said, I don't really want to be right. I do hope that the current ideological perspective, despite its corruption, absurdies and pervasive groupthink, does yield the economic and other benefits you want. Weirder things have happened. I guess.
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