After more than a decade of slugging it out in the court system with Canada over Aboriginal economic fishing rights, Nuu-chah-nulth Ha’wiih decided it was time to celebrate their victories at Maht Mahs gym on November 1, almost five years after the original trial decision on November 3, 2009.
More than 600 Nuu-chah-nulth and their supporters joined in the celebration, which included feasting, gift giving, song and dance.
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First Nations people have been fighting the governments for the right to catch and sell fish since they were pushed off the water by government legislation and policy. During that time, many challenged Canada’s laws and were prosecuted for fishing.
A noteworthy Nuu-chah-nulth court victory came in 1995 when the British Columbia Court of Appeal ruled unanimously in favour of aboriginal fishing rights. The Jack, John & John versus Regina (“Triple J”) case marked the beginning of aboriginal rights and title cases won by Nuu-chah-nulth-aht.
Tseshaht lawyer and now Chief Councillor Hugh Braker was counsel for the Triple J case. He represented Ha’wilth Jerry Jack, Martin John and Arnold John who were charged with the offence of fishing for salmon in an area that Fisheries and Oceans Canada (DFO) had closed, purportedly for conservation reasons. Yet DFO had opened the approach areas to commercial and sports fisheries.
The now late Jack argued he had an aboriginal right to access the resource, and the Supreme Court of Canada agreed; the justices upheld the BC Supreme Court decision.
Meanwhile, Nuu-chah-nulth Nations negotiators were making little headway at the fisheries treaty negotiation tables and told Federal negotiators that if they didn’t deal with fisheries in a meaningful way through Treaty negotiations, the likely outcome would be going to court to deal with fisheries access.
In June 2003, the Ahousaht et al. versus Canada court case began with the law firm Ratcliff & Company arguing for the aboriginal rights of Nuu-chah-nulth Nations to catch and sell fish. The Nuu-chah-nulth Nations won the case in the BC Supreme Court (Nov. 3, 2009), but Canada appealed the ruling taking it all the way to the Supreme Court of Canada.
On Jan. 30, 2014, the Supreme Court of Canada refused to hear Canada’s last appeal, ending Canada’s attempts to overturn the original trial decision.
“The highest court in Canada has recognized those fishing rights that we already knew we had,” said Nuu-chah-nulth Tribal Council President Debra Foxcroft, who emceed the celebration with Vice-President Wameesh Ken Watts. “We won! It’s a wonderful day to be Nuu-chah-nulth and a wonderful day to celebrate,” Foxcroft continued.
“This is ground breaking,” said Watts. “Nobody else has ever gone to court and proven their aboriginal rights in this way.” He acknowledged everyone who helped fight the battle, from the Nuu-chah-nulth fishermen to those who testified and everyone who worked on the case.
“They did it for the children,” said Watts before asking for a round of applause for Nuu-chah-nulth children.
In the letter of congratulations from Ratcliff & Company, the lawyers told Nuu-chah-nulth-aht that nobody can take their rights away again. The aboriginal rights of the five Nations —Ahousaht, Ehattesaht/Chinehkint, Hesquiaht, Mowachaht/Muchalaht, and Tla-o-qui-aht—that received the final affirmationto fish and sell fish are forever protected by the Canadian Constitution.
The celebration at Maht Mahs started the traditional way, with prayers and recognition and tokens of comfort for those in mourning.
Tseshaht singers and dancers performed a welcome dance, followed by words from Watts.
Braker welcomed people, Nuu-chah-nulth-aht and other supporters, especially those that came from all over the province to join in the celebration. He introduced Tseshaht Ha'wilth Albert Clutesi saying he too welcomes the people and wants them to know that he has been watching the progress of this fisheries case over the years.
After, Foxcroft welcomed people on behalf of the Nuu-chah-nulth Tribal Council. Then, Ahousaht took the floor and stood before the muuyapilum; an impressively wide ceremonial curtain owned by Ahousaht Tyee Ha’wilth Maquinna Lewis George.
The significance of the muuyapilum was explained for the purposes of the celebration. Muuyapilum are owned by Ha’wiih and each tells the story in images of the rights and resources a chief owns. It may show rivers, sea resources, land, animals and spiritual representations; all things that must be cared for so that future generation may thrive.
Guests then witnessed a powerful ceremony as Maquinna, through speaker Hudson Webster, called upon the ancestors. Two masked elders leaning on walking sticks slowly entered the room. They made their way to Maquinna and whispered good news to him. Their message was that the ancestors are happy about the court victory. The people cheered as the messengers made their way out of the room.
Ahousaht blanketed several people who were there for them during the long days of testimony in the Vancouver Law Courts.
First to be blanketed were Ratcliff & Company lawyers John Rich and Matt Kirchner.
“These two fine gentlemen are lawyers that represented our nations in fighting for our right to harvest and to sell,” said Cliff Atleo.
Julia Eaton and Sally Peter were blanketed for being at the courthouse every day of the court case to take care of the people and offer support.
People who have since passed on were also remembered and blanketed in spirit. They included elder Peggy August, Hesquiaht Tyee Ha’wilth Matlahoa Dominic Andrews, Toquaht Tyee Ha’wilth Bert Mack, and Arnold John who went to the courthouse as often as they could despite many obstacles.
Toquaht Tyee Ha’wilth Anne Mack joined in the celebration by sharing a victory song handed down to her by her late grandfather, Tyee Ha’wilth Cecil Mack.
In keeping with the spirit of the celebration, a beautifully-crafted wood and glass HuupaKwanum was unveiled. The HuupaKwanum is usually described as an ornate box that symbolically holds all the possessions of a Ha’wilth.
This HuupaKwanum was designed by Kelly Foxcroft-Poirier on the direction of the Ha’wiih. This particular HuupaKwanum is a representation of the chiefly holdings of all Nuu-chah-nulth Ha’wiih. It was carried in by Nuu-chah-nulth youth so that they may remember the importance of the day and carry it forward for future generations. People of Tseshaht accompanied the HuupaKwanum, chanting as they entered the room.
“It tells what we all have as Nuu-chah-nulth-aht,” said Anne Robinson, adding the collective Ha’wiih own everything in their territories from the sea to the sky.
Foxcroft-Poirier said it was a tremendous privilege to create the HuupaKwanum.
“It is made with light inside because it is time to move forward,” she explained. She asked people to remember the teachings of the ancestors and to remember that we are doing this for our children, to move forward in light, strong in spirit and strong of heart.
Simon Lucas credited Ahousaht elder Stanley Sam for coming up with the idea of a collective Nuu-chah-nulth HuupaKwanum four years ago.
“This HuupaKwanum that you see this day is very important,” said Sam. “Together we have power,” he continued, adding that it is what Nuu-chah-nulth means. It means we stick together, just like the mountains.
It is a representation of all that Ha’wiih own. It contains everything the Ha’wiih need to manage their resources.
“This is actually a governance box,” said Atleo. “To me it is more important than the Constitution of Canada.”
Atleo said Nuu-chah-nulth have been dealing with the fight for their rights almost since contact. He said the Nisga’a in the 1890s traveled to Victoria pleading to have the land question dealt with. Other Nations also fought to be heard, to no avail.
In 1939 the Native Brotherhood was formed to keep the land question fight alive. “It was disguised as a religious meeting because we weren’t even allowed to talk about the land question,” said Atleo. The Union of Indian Chiefs was founded in 1969.
“In the 1950s, we were as much as 35 per cent of the commercial fleet, but the government implemented policies that eroded the First Nations’ stake in the commercial fleet,” said Atleo, adding, all Nuu-chah-nulth ever wanted to do was to make a living.
Nuu-chah-nulth fished all year round. It was enough to keep the people proudly on their feet, he continued.
“I can conclude nothing different than racist policies on the part of the government. Someone would have to prove otherwise why we suffered the way we have,” said Atleo.
He went on to describe the various court decisions that came down in the Nuu-chah-nulth’s favour over the years, but even so, he says, we still have to fight.
At the NTC treaty table Atleo and Richard Watts were appointed to negotiate fisheries but negotiators for Canada came to the table with nothing acceptable. In frustration Atleo said he told them that if it comes down to it Nuu-chah-nulth would go to court over fisheries and kick their behinds.
“We have a right to a livelihood,” said Richard Watts. “It was a tough battle but we won and now it’s time to set the table for our kids.”
Martin John, sole survivor of the victorious ‘Triple J’ case was held up. The elderly John was blanketed and held up over the heads of men in his wheelchair as a hero.
Foxcroft read a message from the Assembly of First Nations acting National Chief Ghislain Picard, who could not attend the celebration. He offered his congratulations and best wishes.
“Your victory is applauded and celebrated by all first nations,” he wrote.
Union of British Columbia Indian Chiefs President, Grand Chief Stewart Phillip, and wife Joan offered their congratulations.
“I don’t think I’ve ever left this building feeling more enriched and more inspired after listening to your elders and Ha’wiih. It is good medicine for First Nations all across Turtle Island. This victory is good for all of us in this age-old fight to decolonize and get past all the terrible things that happened to us,” he said.
The First Nations Summit Task Group representative Cheryl Casimer offered her congratulations.
“It’s a huge victory for all First Nations in this country,” said Casimer. “Many of us at the First Nations Summit have been sitting at the treaty table for years getting frustrated with government negotiators’ lack of will and lack of mandates and there will come a time when we say we will no longer be denied what is ours,” she added.
Ratcliff & Company, represented by Matt Kirchner, talked about the case. He said John Rich was the leader of the legal team that led to this tremendous result.
He mentioned Tseshaht’s rights-based fishery and how hard they fought for it, which set an example that helped the case along.
Kirchner thanked the Ha’wiih for having the courage to proceed with this case.
“There’s some real risk in bringing a case like this and for Nuu-chah-nulth to bring your culture and your HuupaKwanum in front of a non-first nation system is admirable,” he said.
He said his firm has been very privileged to work on this case and they take great pride in representing Nuu-chah-nulth.
“A lawyer doesn’t come across a case like this very often…one that’s so interesting,” said Kirchner. “It’s a great result and your rights are protected by the supreme law of Canada and can never be taken from you.”
Kirchner went on to say that not only does Nuu-chah-nulth have a priority right to the resource in their territories, but also the judge said from now on DFO needs to deal with Nuu-chah-nulth in the management of fisheries resources.
“You have Constitutional rights in fisheries and you have a say in how fisheries are managed and DFO can no longer run roughshod over your rights,” said Kirchner.
The legal team thanked the witnesses and the NTC’s Uu-a-thluk fisheries team led by Dr. Don Hall.
“DFO could not hold a candle to Uu-a-thluk in terms of fisheries management,” said Kirchner.
Ratcliff & Company presented to the NTC a framed print that memorialized the court victory. Each of the five Nations will also be receiving a framed print to commemorate the court victory.
Dr. Michelle Corfield offered congratulation on behalf of the First Nations Fisheries Council.
“It’s a powerful day at Maht Mahs,” said MLA Scott Fraser, who promised to do his part to represent Nuu-chah-nulth in the legislature. “They need to fundamentally change the way they treat you and your rights; government needs to acknowledge with respect and recognition that those rights are yours,” Fraser said.
Following dinner Don Hall and his wife Arlene were invited to sit in front of the curtain by the Hesquiaht Ha’wiih.
Simon and Julia Lucas thanked them for their contributions to the Nuu-chah-nulth Nations and gave them hand-knitted vests. Both were given Hesquiaht names.
The late evening was filled with presentations and speeches from Ehattesaht, Mowachaht/Muchalaht and Tla-o-qui-aht.
Ehattesaht Nation presented two original paintings to the family of the late Dr. Barbara Lane in gratitude for her contributions to the Nuu-chah-nulth Nations.
“We beat them four times and we beat them in their own system” said Tla-o-qui-aht Chief Councillor Francis Frank. The next challenge is to prove to them that we will outlast them, he continued.
According to Frank, expert witness Dr. Lane always told Nuu-chah-nulth-aht that they had a strong case.
“For 57 years we were off the water, but now our people can gather our resources because we were successful,” said Mowachaht Tyee Ha’wilth Mike Maquinna.
“We tried to teach the lead negotiators (during treaty negotiations) our ways, but they don’t hear,” said Kiista Keith Atleo.
“As Ahousaht we will continue to lead the way; (they’re) our resources and we aren’t going anywhere,” said Atleo.
