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

Five Nuu-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.

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ABOUT TIME

Nov 3, 2009 at 5:25pm

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

Nov 3, 2009 at 8:05pm

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

Nov 3, 2009 at 10:14pm

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

Nov 3, 2009 at 11:14pm

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

Nov 3, 2009 at 11:16pm

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

Nov 4, 2009 at 7:18am

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

Nov 4, 2009 at 8:28am

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?

Nov 4, 2009 at 8:37am

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

Nov 4, 2009 at 8:59am

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

Nov 4, 2009 at 10:29am

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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