Today the B.C. Court of Appeal reaffirmed its earlier major legal ruling recognizing the commercial fishing rights of Nuu-chah-nulth Nations.
Last fall the Supreme Court of Canada (SCC) rejected Canada’s request to appeal that earlier decision, sending the case back to the B.C. Court of Appeal for reconsideration in light of the Lax Kw’alaams vs. Canada SCC decision.
On reconsideration, the three-Judge panel unanimously reconfirmedthat five Nuu-chah-nulth First Nations (Ahousaht, Ehattesaht/Chinehkint, Hesquiaht, Mowachaht/Muchalaht, and Tla-o-qui-aht) have Aboriginal rights to harvest and sell all species of fish.
“Having reconsidered the reasons of the trial judge in light of the reasons of the Supreme Court of Canada in Lax Kw’alaams, I do not consider that any different result from the decision of the majority of this Court in 2011 is appropriate.” (2013 BCCA 300, paragraph 36)
During the reconsideration, the Court of Appeal was tasked to review the Ahousaht et al vs. Canada case based on the Lax Kw’alaams vs. Canadadecision where the trial judge found that apart from eulachon grease, the Lax Kw’alaams people did not trade in fish on an economic scale.
In Ahousaht et al vs. Canada, the Trial Judge found that economic trade in fish was a defining feature of Nuu-chah-nulth culture. This trade happened regularly, in substantial quantities and was integral to Nuu-chah-nulth cultural practices.
During the appeal hearing, lawyers for Nuu-chah-nulth Nations argued that this key difference set the Nuu-chah-nulth case apart from the Lax Kw’alaams case. They also argued that the 2009 decision of the Trial Judge and the original 2011 decision of the Court of Appeal properly followed the tests set out by the SCC in Lax Kw’alaams, Van der Peet, and other leading SCC decisions.
Today, the Court of Appeal agreed, reaffirming that there was ample evidence to support the Trial Judge’s findings, and that she did accurately apply the Supreme Court of Canada tests.
“I do not know what more [the Trial Judge] could have done to demonstrate that she appreciated the requirements set forth by the Supreme Court of Canada in Van der Peet and reaffirmed in Lax Kw’alaams.” (2013 BCCA 300, paragraph 19)
The case, which spanned much of the last decade, began in June of 2003 when Nuu‑chah-nulth Nations filed a Writ of Summons against Canada and British Columbia. The claims of the Nations were based on Aboriginal rights to harvest and sell sea resources, Aboriginal title to fishing territories and fishing sites, and the unique obligations of the Crown arising through the reserve-creation process.
After Confederation, Canada encouraged the Nuu-chah-nulth to remain fishing people by allocating small fishing stations as reserves while denying the larger land claims of Nuu-chah-nulth Nations. Over the next hundred years, Canada decreased and excluded Nuu-chah-nulth participation in the west coast fishery through government policies and regulations.
“We are pleased that the B.C. Court of Appeal has again confirmed the rights of Nuu‑chah-nulth Nations to earn a living from the sea resources in our territories,” exclaimed an exuberant Clifford Atleo Sr., President of the Nuu-chah-nulth Tribal Council. “We expect the Government of Canada, through DFO, to now come to the negotiating table in a much more substantial way to work with the Nuu-chah-nulth to implement these decisions, as the Courts have instructed Canada. DFO needs a proper mandate from the Government that respects the court decisions and must stop the stall and delay tactics. Nuu-chah-nulth Chiefs want to negotiate real rights-based fisheries. Canada needs to get serious now that they have lost yet another attempt at over-turning the recognition of Nuu-chah-nulth fishing rights.”
Today’s decision represents the third time the B.C. Courts have recognized the Nation’s aboriginal fishing rights. The decision comes after three-and-a-half years of difficult negotiations between the Nations and the Department of Fisheries and Oceans.
Despite direction from the Trial Judge to negotiate the details of a rights-based fishery within two years, Canada has been reluctant to engage in the negotiations in a meaningful way. Today’s decision provides further impetus to set negotiations and reconciliation on track.
