Saturday, September 20, 2014
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Three More Native Legal Wins in Fisheries (but I’m not counting them!)

Bill Gallagher, author / strategist / lawyer


2014 has already served-up 3 more native legal wins - but unfortunately I can’t count them because they’re not sufficiently groundbreaking to make-the-grade:


1st case: High court dismisses Ottawa, B.C appeal of First Nations fisheries (Van Sun)

Five Vancouver Island native bands get commercial fishery (CBC News)

These headlines sure sound like this is a major legal win. But because the Supreme Court of Canada does not provide reasons (on contested Leave to Appeal motions), it unfortunately does not count as a key legal precedent. Nevertheless, the B.C. Court of Appeal’s two rulings do stand as major precedents. Normally a plaintiff only needs one win at the appellate level, but in this situation Shawn Atleo was put through the legal wringer twice - and winning both times. That legal anomaly likely explains the CBC’s notable sub-headline given the Nuu-chah-nulth’s long fight for access to the commercial offshore fishery: Supreme Court of Canada dismisses federal government appeal ending decades-long legal fight. (author’s underlining)


2nd case: A native fisher in N.S. has just won a Federal Court ruling that forces her First Nation back to the drawing board, to include her new (bank-financed) fishing boat into its outsourcing arrangement (when selling its commercial quota to the established commercial industry). The industry took the loss (Kaiser Marine) as did the Shubenacadie Indian Band. But since it's a win against her First Nation - it’s not counted - even though it reinforced an important underlying legal principal, namely:

[40] … While members of the Indian Brook First Nation may well have treaty or aboriginal rights that would allow them to fish snow crab outside the licensing system established under the Fisheries Act as the Supreme Court held in Marshall, the Indian Brook First Nation agreed in the Interim Fisheries Agreement to operate within the licensing system established under the Fisheries Act. … (Maloney v. Shubenacadie First Nation) (author’s underlining)

It’ll be interesting to see how this ruling plays out. Plaintiff (Cheryl Maloney) is a no-nonsense native fisher who personally made a major investment to get her family’s boat rigged-out. The bank took her seriously. So why can’t the powers-that-be in the commercial offshore fishery make proper room for her? Moreover, it's not as if Mi’kmaq & Maliseet treaty rights haven’t been on the national news recently.


3rd case: B.C.’s First Nations declare victory over Department of Fisheries in fight to conserve fish (Van Sun headline)

An injunction has just issued from the Federal Court (with reasons still pending) to protect the fragile herring fishery in the same region where Shawn Atleo had just won commercial fishing rights. Here, almost simultaneously, the Nuu-chah-nulth Tribal Council is demonstrating that they intend to protect this fishery according to their sustainable practices and priorities. In that light, this injunction against DFO is a de facto extension of their recent and hard won empowerment to protect their fishery - so it’s a legal footnote and thus not counted.


Taken together, these three fishery rulings, on both coasts, show that natives are assuming their new mantle as ‘Resource Rulers’ in a responsible and fair-minded fashion. It appears, going forward, that it’s intended to be an inclusive fishery with key protections for the native subsistence lifestyle.

Do we have to have our courts telling us this simple premise time-and-again?


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