The British Columbia Supreme Court on May 18th upheld a court decision saying that Nuu-chah-nulth First Nations have the aboriginal right to fish any species of fish within their traditional territories and that they have the right to sell that fish within their own commercial fishery structure, a ruling originally made by Madam Justice Nicole J. Garson on November 3, 2009.
The decision was a victory for the Nuu-chah-nulth First Nations and represents a conclusive win for aboriginal peoples in Canada that is equivalent to the 1974 Boldt Decision (upheld in 1979) reaffirming the rights of Indian tribes in Washington to fish.
The Nuu-chah-nulth Tribal Council is composed of five First Nations: Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht.
Seventeen witnesses gave evidence on the history and cultural knowledge of their communities. In their submissions, they told of their historic connection to fisheries, and their extensive trading of fish with European settlers at contact, as well as with other tribes in the areas of their traditional territory. Historic journals and the oral history of the tribes’ elders and experts formed the basis of the evidence presented to the court.
As Nuu-chah-nulth elder Nelson Keitlah said, “They put us on the tiny plots of land because we are tied so closely with our ocean resources, then they took away our rights to harvest those same resources.”
Justice Garson found that there was no justification for Canada’s infringement upon the fishing rights of the Nuu-chah-nulth people, and that Canada has not taken their aboriginal rights into account when setting the policies and management of fisheries.
It was therefore determined that their rights where constitutionally protected and that the government of Canada must address changing its approach to aboriginal fisheries. From the date of the Court of Appeal decision, the government and the Nuu-chah-nulth have one year to redesign a fishery that recognizes their rights to fish and sell fish commercially.
For tribes in Canada, the Nuu-chah-nulth Decision may revolutionize how fisheries policy, economy and harvesting is done, just as the Boldt Decision (United States v. Washington) changed forever how state fisheries are conducted in the United States.
For Chief Ian Campbell of the Squamish Nation, the decision marks a new era in recognition of aboriginal rights and title, and the requirement of government to account for the formulation of policy and management of fisheries.
“Government ministries must recognize our inherent place upon the land and waters of our territories, and that we have since time of contact always asserted our rights and have never ceded those rights,” Chief Campbell said. “First Nations must continue to assert our authority and jurisdiction bestowed upon us by thousands of years of use and occupancy, and spiritual connection to our lands and resources.”
“This is not a comprehensive aboriginal rights and title case,” said John Rich, Counsel for the Plaintiffs. “This is about the fisheries. Our clients have been seriously impacted and their communities are suffering. Many of their people have been charged with fisheries offenses and they are eager to argue this case before the Court. Canada has substantially displaced these people from the fishery.”