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.