Canada’s Infringements of Nuu-Chah-Nulth Fishing Rights Not Justified Says BC Supreme Court Decision

After 155 days in court, five Nuu-chah-nulth First Nations — Ahousaht, Ehattesaht/Chinehkint, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht — are embracing a major legal victory in a court case that ends a series of legal battles with Canada going back to 2006.

Nuu-chah-nulth Tribal Council/Port Alberni, BC: After 155 days in court, five Nuu-chah-nulth First Nations — Ahousaht, Ehattesaht/Chinehkint, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht — are embracing a major legal victory in a court case that ends a series of legal battles with Canada going back to 2006. In this last legal battle, called the “justification trial,” Canada failed to justify its past and continuing infringement of the aboriginal fishing rights of the five Nuu-chah-nulth Nations’ Aboriginal right to fish and sell fish from their territories.

“Once again the court has decided in favour of our Nuu-chah-nulth Nations. Canada’s regulations and policies infringed on the fishing rights of our people, and Canada cannot justify these past and ongoing infringements of Nuu-chah-nulth rights to fish and sell fish from our territories”, said Judith Sayers, NTC President. “It is time for this government to act on its many promises to Indigenous people and recognize and implement our rights.”

The justification trial began on March 9, 2015. Canada took over 108 days to present its case through 25 witnesses. The Nuu-chah-nulth case was presented in 32 days through 11 witnesses. The court case spanned the 2015 federal election and combined with the original trial has cost the federal government over $19 million, which could have been better spent implementing the proven fishing right. The Nations were hopeful that the incoming Liberal government would honour its commitment to achieve “a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership” and would take a different approach than the Harper government in the legal proceedings, but instead the Trudeau government continued the same aggressive legal action.

“The Nuu-chah-nulth have been more than patient,” said Gord Johns, NDP MP for Courtenay-Alberni. Johns has raised the issue of the Nuu-chah-nulth fishing rights twenty-nine times in the House of Commons and has stood with the five Nations to ensure that they have a voice in Ottawa on this issue. “The Nations have developed fishing plans that uphold conservation and provide for reasonable allocations and well-managed fisheries. All our communities on the west coast of Vancouver Island support Nuu-chah-nulth getting a fair share of the fishing opportunities in their territories. It is just good business for the economic well-being of our coastal communities and First Nations.”

The original trial decision of 2009 recognized aboriginal right to fish and sell for the five Nuu-chah-nulth Nations and that the right had been infringed by the policies and regulations of the Department of Fisheries and Oceans (DFO). The fishing rights were confirmed by two BC Court of Appeal decisions and a final confirmation by the Supreme Court of Canada in 2014.

The 2009 trial decision and appeals provided the five Nations and Canada two-and-a-half years to negotiate a new fisheries regime based on the Aboriginal rights of the five Nations. That time frame ran out in 2012 with no effort on the part of the Harper government to reach a settlement.

The five Nations exercised the trial decision option to return to court to have Canada attempt to justify DFO’s past and ongoing infringements of the Nations’ rights to fish and sell fish commercially.

“Nuu-chah-nulth Nations seek reasonable opportunities to restore their fishing culture and foster economic independence in their communities,” said Sayers, a recent recipient of the Order of Canada for her work on sustainable and robust economic development in First Nation communities. “By now Canada, and especially this government, should have negotiated a settlement with the five Nations so they can be fishing and contributing to the local and Canadian economy rather than wasting even more resources fighting against their fishing rights in court.”

Assembly of First Nations National Chief Perry Bellegarde added his support to the decision. “The Nuu-chah-nulth Nations have won an important victory today. First Nations across all our territories celebrate their tireless struggle to ensure respect of their rights to fish for commercial trade and their way of life. Once again, the courts have been clear. Canada must work with First Nations to achieve long term, sustainable and economically stable fisheries. The federal government must stop its approach in the courts of denying Aboriginal and treaty rights and title, and end the practice of forcing First Nations to endure long and hostile legal processes to have their rights recognized.”