Tuesday, September 23, 2014
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B.C. bands 'excited' after Supreme Court upholds First Nations fishing rights

Mark Hume

The Globe and Mail

Five bands on the West Coast of Vancouver Island are hailing as “a major legal victory” a decision by the Supreme Court of Canada that confirms the right of native people to fish and to sell their catch.

The decision ends a long legal battle and is expected to give First Nations greater opportunities to catch and market salmon, cod, halibut, crab and other species.

The ruling is expected to lead to a new native market fishery, the form and scope of which will be negotiated between First Nations and the Department of Fisheries and Oceans (DFO).

While aboriginal people currently have the right to buy commercial fishing boats and licences, they argue those opportunities are inadequate and do not reflect their traditional rights.

“We’re very excited. We’re just wanting to do a happy dance and celebrate,” Deb Foxcroft, Nuu-chah-nulth Tribal Council president said on Thursday after the Supreme Court of Canada ruled it would not hear an appeal by the federal government.

It is the second time the high court has rejected a federal attempt to appeal a B.C. Supreme Court judgment, supported by the B.C. Court of Appeal, that affirmed the rights of native people to sell their catch.

Ms. Foxcroft, whose council represents the five bands that brought the case, said the decision brings to an end to the legal fight. And she said it will put pressure on the Department of Fisheries and Oceans to negotiate a commercial fishing plan not only for the Nuu-chah-nulth, but also for other First Nations.

“Well, I think it’s a huge decision. It’s going to support other First Nations in Canada and British Columbia,” she said. “I mean, the highest court in Canada has affirmed the right to fish and to sell fish.”

Michelle Imbeau, a spokesperson for the DFO, said officials are “taking the time to review the decision” before commenting.

In 1990, a B.C. court ruled First Nations have a right to fish for food, social and ceremonial (FSC) purposes. That led to so-called FSC fisheries, which sometimes include “economic opportunity fisheries” in which the DFO permits bands to sell limited amounts of salmon.

The Nuu-chah-nulth decision is expected to expand economic fisheries greatly, because the B.C. Supreme Court ruled the bands have a right not only to sell the salmon they catch in rivers, but also other species taken up to 14 kilometres off-shore in the Pacific.

In 2009, Justice Nicole Garson of the B.C. Supreme Court ruled the Nuu-chah-nulth “have aboriginal rights to fish for any species of fish in the environs of their territories and to sell fish.”

The evidence before the court included journals, logs and diaries of European explorers that showed the Nuu-chah-nulth commercially trading fish at the time of first contact, in 1774.

However, Justice Garson said that while the bands have a right to fish and to sell their catch, that does not mean they have a right to do so “on a large industrial scale.”

She ruled the bands have to negotiate with the DFO because their right must be “accommodated and exercised without jeopardizing Canada’s legislative objectives and societal interests in regulating the fishery.”

She instructed the DFO to negotiate with the Nuu-chah-nulth, who could come back to court if the department failed to do that in two years.

Ms. Foxcroft said the Nuu-chah-nulth have met repeatedly with the DFO since that 2009 ruling, but no significant progress was made because the government felt the matter was unresolved legally while it was under appeal.

“We will now be able to have good faith negotiations with the Department of Fisheries,” she said.

Grand Chief Clarence Pennier of the Sto:lo Tribal Council said bands such as his on the Fraser River are hoping the Nuu-chah-nulth case will push the DFO to negotiate plans that will allow other First Nations to sell what they catch.

“We say it applies to all of us,” he said of the court ruling.

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