Court upholds aboriginal fishing rights on Vancouver Island
Last Updated: Wednesday, November 4, 2009 | 11:37 AM PT
The Canadian Press
The British Columbia Supreme Court has ruled that a group of Vancouver Island First Nations has the right to harvest and sell all species of fish found within its territories.
The decision, handed down on Tuesday in Vancouver, involves several bands, collectively known as the Nuu-chah-nulth First Nations, which have territory on the west coast of the island near Tofino and Clayoquot Sound.
'Canada's fisheries regulatory regime … infringes their aboriginal rights to fish and to sell fish,' — B.C. Supreme Court Justice Nicole Garson
"This decision confirms what we've known all along," Cliff Atleo, president of the Nuu-chah-nulth First Nations, said in a statement.
"We have been stewards of our ocean resources for hundreds of generations, and the government of Canada was wrong to push us aside in their attempts to prohibit our access to the sea resources our people depend upon."
The Nuu-chah-nulth First Nations filed a writ of summons against the province and the federal government in 2003 after treaty negotiations that had been going on for years broke down.
The aboriginals say they filed the litigation to have their rights and title to sea resources recognized, respected and implemented. They argued more than 100 years of regulations by Canada diminished Nuu-chah-nulth access to sea resources and forced them out of the West Coast fishery.
"First, the government said we didn't need much land because we were ocean-going peoples. Then, they took away our access to those ocean resources," Atleo said.
Regime infringes on rights
Justice Nicole Garson agreed, ruling that Canada presented evidence to justify the entirety of its fisheries regime but not to justify its failure to permit the Nuu-chah-nulth to exercise their aboriginal fishing rights.
"I conclude that the plaintiffs have proved that Canada's fisheries regulatory regime … infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally," she said, adding that nations do not have the unrestricted right to the commercial selling of fish.
And while the decision upholds the bands' right to fish, Garson dismissed a claim to aboriginal title to the fishing territories, saying that issue must be settled separately.
The decision upholds the federal government's control over all fisheries and urges the band to negotiate with Ottawa on how native fishing and fish sales can be handled while recognizing the need to regulate the fishery and accommodate other fishing interests.
Garson said these talks could even help the two sides make progress on treaty negotiations by addressing the issue of aboriginal title.
Garson said if the two sides can't come to a fisheries settlement within two years, another trial could be held to sort out the matter. A spokesman for the B.C.'s attorney general's office said the province is still studying the lengthy ruling and cannot comment.
