BC Supreme Court recognizes Aboriginal Right for Nuu-chah-nulth Nations Bands to Fish and Sell Fish Commercially

Aboriginal Law Blog

November 03, 2009

Today, in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494, Madam Justice Garson of the BC Supreme Court has ruled that the plaintiffs in the action (the Ehattesaht, the Mowachaht/Muchalaht, the Hesquiaht, the Ahousaht, and the Tla-o-qui-aht – five Nuu-chah-nulth Nations aboriginal bands whose territories are located on the west coast of Vancouver Island) have the aboriginal right to fish any species of fish within their respective traditional territories (to a seaward boundary extending nine miles) and to sell fish commercially. Justice Garson found that these rights stem from ancestral practices, which translate into broader modern entitlements to fish and to sell fish, beyond the small-scale sale of fish in commercial markets, however, limited.

The plaintiffs had asserted an aboriginal right to commercially fish all species of fish in their traditional territory and aboriginal title to a portion of the seabed. They claimed that the fisheries regulatory regime unjustifiably infringed their aboriginal rights and title because it failed to recognize and accommodate their aboriginal rights and title. Justice Garson did not consider the aboriginal title claim.

Justice Garson declined to quantify limits on the scope of the right to sale, instead commenting that while it does encompass a right to sell fish in the commercial marketplace, it "does not extend to a modern industrial fishery or to unrestricted righs of commercial scale" and that "like other rights, such a right may be subject to infringement or restriction by government where such infringement is justified." Such limits, she found, are more appropriately addressed at the infringement and justification stages of the analysis as part of the reconciliation process (citing Newbury J.A. comments in Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539, 80 B.C.L.R. (3d) 212 on the rule against courts exercising jurisdiction on such matters as follows "As Cory, J. stated in R. v. Nikal [1996] 1 S.C.R. 1013 …[t]he government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended."

Justice Garson went on to find that the plaintiffs established that the Fisheries Act, its regulations and policies, prima facie infringes their aboriginal rights, with the exception of their rights to harvest clams and to fish for food, social or ceremonial purposes. However, unlike other fishing rights cases, she found that "there is no single or isolated regulatory provision in issue in these proceedings. Rather, it is the "cumulative effect of Canada's fishing regime that I have found restricts Nuu-chah-nulth with respect to their ability to fish and their methods of fishing, including location, time, gear and species."

She declined however to rule on Canada's justification defence and chose not to make any declaration of unjustified infringement. Instead, she granted the parties two years to consult and negotiate a regulatory regime for Nuu-chah-nulth that recognizes their aboriginal rights – or some other manner in which the plaintiffs' aboriginal rights to fish and to sell fish can be accommodated and exercised – without jeopardizing Canada's legislative objectives and societal interests in regulating the fishery. If these consultations and negotiations are not successful, Justice Garson ruled that Canada has leave to apply at a subsequent trial to tender further evidence on justification and the plaintiffs would also have leave to tender further evidence in this regard.

Overall, the case is being treated as a victory for the plaintiffs, in that they have established their aboriginal right to fish for and sell any species of fish found within their traditional territory and Canada must accommodate this right in its regulation of the fisheries.

Following the decision, members of the plaintiff Nuu-chah-nulth Nations bands gathered on the courthouse steps for a press conference, attended by many media personnel, onlookers, lawyers and general public to celebrate the recognition of their aboriginal right to fish and sell fish commercially.