August 13, 2019 – Five Nuu-chah-nulth Nations (Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht) on the west coast of Vancouver Island have filed an application in Federal Court seeking an injunction against the Minister of Fisheries and Oceans’ decision to reallocate part of the suuhaa (Chinook salmon) total allowable catch from the recreational fishery to the regular commercial fishery without providing any additional access to the five Nations.
The Nations tried to engage DFO on the suuhaa (Chinook salmon) allocations – requesting more opportunity in this critical fishery for their members – but DFO has ignored their efforts.
“We have met with DFO numerous times to discuss this matter, and have sent them seven letters articulating our perspectives in order to seek resolution. DFO has not responded to or even acknowledged any of our letters, or come to the table to try and find a workable solution,” said Alex Gagne, manager of the T’aaq-wiihak Fisheries.
The Nations’ expectation was that the Minister would deal with them in a respectful way, recognizing their right and engaging with them to devise an acceptable plan that would provide viable opportunities for the Nations and also provide certainty for other sectors. But that did not happen. The Five Nations regret having to once again turn to the Courts in an attempt to force the federal government to implement their constitutional rights.
“DFO cannot continue to minimize and ignore the proven rights of our Nations. The Courts have been clear that a generous approach to our Chinook salmon allocation is required, yet DFO actually provided the Nations with less Chinook this year,” said Cliff Atleo, Lead Negotiator for Ahousaht.
“Nuu-chah-nulth Nations are seeking reasonable opportunities to restore their fishing culture and foster economic independence in their communities,” added Judith Sayers, President, Nuu-chah-nulth Tribal Council. “Rather than support the interests of Nuu-chah-nulth fishers to make a modest living from the sea resources, the Canadian government would rather go to Court to keep Nuu-chah-nulth out of the coastal economy.”
The Five Nations want to be clear that their fight is not with the commercial and sport fisheries; their fight is with the Government of Canada and the need for the Government to respect the rulings of their own court system.
The application will be heard in Vancouver on Tuesday and Wednesday of this week (August 13 and 14).
The Ahousaht et al v. Canada trial decision of 2009 found that the five Nuu-chah-nulth Nations have Aboriginal rights to fish and sell fish, and that these rights were infringed by the policies and regulations of DFO. The BC Court of Appeal and the Supreme Court of Canada confirmed the fishing rights and infringements. The 2009 trial decision and appeal 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, and the Nations opted to return to Court to task Canada with justifying its past and ongoing infringement of their rights to fish and sell fish commercially.
The Justification Proceedings were heard before the British Columbia Supreme Court in 2015 and 2016. In a judgment released on April 19, 2018, the Court (Madam Justice Humphries) found that Canada had not justified DFO’s infringement of the Nations’ Aboriginal right with respect to allocations of WCVI suuhaa (Chinook salmon) in the mixed stock fishery (AABM). With regard to this unjustified infringement, Justice Humphries said:
“…a generous approach is required for allocations of AABM chinook, given the importance of that species to the plaintiffs, the lack of evidence of effects on the rest of the commercial fishery if the mitigation policy is not adhered to for this species, and the priority the plaintiffs have over the recreational fishery, despite the present Salmon Allocation Policy.” (2018 Decision, para. 1248)