5 Nuu-chah-nulth First Nations Win Appeal on right to a Commercial Fishery
On July 2, 2013, the BC Court of Appeal delivered their decision in Ahousaht et al vs. The Attorney General of Canada et al. The court upheld the decision of the BC Supreme Court Decision made on November 3, 2009, by Justice Carson (as she then was) that the Nuu-chah-nulth have an aboriginal right to fish all species and to sell that fish. A major victory indeed!
This right to a commercial fishery case has a long history. In the 90’s, there were 13 First Nations who were negotiating together in the BC treaty process. Recognizing that the federal government was not going to be negotiating fairly on fisheries, (indeed, fisheries has now been taken off the treaty tables list of items to negotiate), the 13 Nuu-chah-nulth Nations decided to hire researchers to begin the necessary documentation to establish our right to a commercial fishery. This was years before a decision was made to take the issue to court but we had a back-up plan in place. We diligently and in good faith negotiated fish and fish resources at the treaty table to no avail. I remember having special one week negotiations just on fisheries just to try and come to some agreement on what would be in the Agreement in Principle regarding our right to fish. There was no meeting of the minds, so, the decision was made to go to court and the writ was filed in 2003.
The court case was commenced with all of the 13 Nuu-chah-nulth Nations. The Federal government as preliminary motions before the trial of the issue argued that there could be no overlapping claims of the 13 Nations. The justice agreed and we were given a time limit on which to resolve our overlaps. If we didn’t resolve them, we were to have our names dropped off the hearings of what was to be phase 1 of this case. Several First Nations, including the Hupacasath were not able to resolve our overlaps, and despite the money and time we had invested in the case, we were dropped from the law suit. Another attrition of First Nations occurred when the Maa-nulth were concluding their final agreement and in order to get the final agreement, they had to remove their names from the law suit. They settled for this clause in their Final Agreement:
10.2.3: If the highest domestic court that considers the Litigation determines that one or more
of the plaintiffs has an aboriginal right to fish for salmon, halibut, Rockfish, roe
herring, sablefish, prawn or crab and to sell the fish caught under that right on a
commercial basis, upon the written request of the Maa-nulth First Nations provided
within eight years of such determination, the Parties will amend this Agreement and
the Harvest Agreement as described in the Harvest Agreement.
So the result of all of the wrangling by the federal government was that 5 of the Nuu-chah-nulth Nations, the Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht went to trial and won at the BC Supreme Court.
What did the BC Supreme Court decide?
1. The 5 Nuu-chah-nulth Nations have the aboriginal right to fish for any species of fish in their territories and to sell fish.
2. Dismissed the claim to aboriginal title to their fishing territories
3. The Fisheries Act/regulations have prima facie (at first glance) infringed their aboriginal right to fish and to sell fish except with respect of the food social and ceremonial (FSC). The court made no decision as to whether there was an unjustified infringement.
4. The parties have to consult and negotiate how the plaintiffs will exercise their right to fish and sell fish without jeopardizing Canada’s legislative objectives and societal interests in regulating the fishery.
5. If negotiations are unsuccessful within 2 years, Canada can apply to provide evidence on justification as well as the First Nations.
Of course the Federal government appealed the decision and the Court of Appeal upheld the decision of the BC Supreme Court. The Federal government then appealed to the Supreme Court of Canada. The Supreme Court of Canada had just given the decision in the Lax Kw’alaams case and returned the decision to the Court of Appeal to look at the case again based on that decision. There was a rehearing at the Court of appeal based on the Lax Kw’alaams decision and another decision was made again upholding the BC Supreme Court decision. The most recent case is the result of that very circuitous and costly process.
The Case before the BC Court of Appeal-2nd time around
The Federal Government and the intervenors: BC Wildlife Federation, BC Seafood Alliance and the Underwater Harvesters Research Society said the BC Supreme Court justice made the following 4 mistakes:
1. Trial judge failed to identify the nature of the claim-it was too general: The Court of Appeal stated that the Justice did know what the issue was: It was that the Nuu-chah-nulth were a fishing people whose way of life was characterized by trade-was about harvesting ALL species of fisheries resource, for any purpose, and selling, trading or exchanging those fisheries resources on a commercial scale, to sustain their communities or for money or other goods.
The BC Supreme Court found on the evidence that the Nuu-chah-nulth engaged in the trade of fisheries resources which included the regular exchange of fisheries resources in significant quantities to other tribes and groups. This was different from the Lax Kw’alaams decision where the court found the only evidence to a commercial fishery was with eulachon and nothing else. The court of appeal agreed on this and said this was not “a voyage of discovery armed only with very general terms of reference.”
2. Trial judged relied on pre-contact practices that were not pled, and in any event could not support the right claimed: Lax kw’alaams case stated that the claimant has to prove the existence of pre-contact practice, tradition, or custom. Based on the facts before the Supreme Court of BC, such practices were proved based on the longstanding trade networks, dentalia shells were found in exotic places-was used as currency, iron was noted indicating a strong pre-contact network, and the frequency and amount of trade-all showed trade was a practice integral to Nuu-chah-nulth society. Court of Appeal recognized those findings.
3. Trial judge misinterpreted the requirements of integrality and continuity: The test the court has to use in determining a right, is whether the practice was integral to the First Nation pre-contact. The First Nation does not have to prove that it was their “core identity”. The question the justice asks to determine this is “whether, without this practice, the culture in question would be fundamentally altered other than what it is. Based on the evidence, the Justice determined that fishing and trade in fish were integral to the Nuu-chah-nulth culture. Again, Court of Appeal agreed with this finding in law and was consistent with Law Kw’alaams.
4. Trial Judge did not define the scope of the right to sell fish: Justice Garson had said it is for the parties to negotiate towards a quantification of the amount and means of exercise of the plaintiffs’ aboriginal rights to fish and sell fish. Negotiations by the federal government must recognize the Nuu-chah-nulth right to fish and sell fish. Federal government will have to balance the plaintiffs’ priority with other societal interests. The court of appeal said that the justice was not required to consider articulating more than she did concerning individual marine species at this stage of the proceedings.
Justice Garson said that she did not have to define trade but set out features of trade to be: exchanges of fish or shell fish for an economic purposes, exchanges of significant quantity of such goods, exchanges as a regular feature of Nuu-chah-nulth society and exchanges outside the local group or tribe. The court of appeal stated that Justice Garson did not have to go further in defining trade practices of the ancestral society. They also agreed with the justice that the Fisheries Act was as yet an unjustified prima facie infringement of the plaintiffs rights.
The Court of Appeal determined that there would be no changes in their earlier decision based on the Lax Kw’alaams decision in that the evidence supported the findings in law. The right to sell did not include geoduck. The Court of Appeal dismissed the appeal of the Federal Government. I am willing to bet that the federal government will spend a year talking to the Nuu-chah-nulth and then go back to court on a justification argument. They cannot just appeal to the Supreme Court of Canada but must fulfil the conditions set out by the Appeal Court. The new Fisheries Minister will have to make sure that negotatiations are in good faith and will bear the scrutiny of the court before heading back to the Court of Appeal.