Aboriginal fisheries decision to be appealed

The federal government will appeal a B.C. Supreme Court ruling that affirmed a Vancouver Island First Nations people's right to catch and sell fish, says a federal justice department spokesperson.

The ruling last month dismissed the Nuu-chah-nulth people's claim to aboriginal title to their fishing territory but affirmed their aboriginal right on the west coast of the island to harvest and sell fish from their traditional territories.

The Ehattesaht, the Mowachaht/Muchalaht, the Hesquiaht, the Ahousaht, and the Tla-o-qui-aht bands filed the lawsuit six years ago, arguing that their ancestors fished and traded fish, and they should have a modern-day right to fish commercially.

They argued that Canada's fisheries regime unjustifiably infringes on that right and largely excludes them from the commercial fishery.

The court agreed, but the federal government filed its notice of appeal on Dec. 3.

“The Government of Canada believes that the B.C. Supreme Court decision in Ahousaht et al v. Canada and B.C. raises important issues that require further consideration by the B.C. Court of Appeal,” said Justice Department spokeswoman Carole Saindon.

Ms. Saindon wouldn't disclose what those issues were.

The federal government argued at trial that the Nuu-chah-nulth do not have an aboriginal right to trade or sell fish, and that federal legislation does not infringe on any rights they do have.

If there is any infringement, the federal government said it's necessary to conserve and manage the fishery.

In an interview after the ruling, lead federal lawyer Michael Doherty said the ruling gave the Nuu-chah-nulth “less than a commercial fishery, but more than just an exchange of goods.”

“But no one knows what this means,” he said.

In her May judgment, Madam Justice Nicole Garson affirmed the Nuu-chah-nulth's right to catch and sell ocean resources, but didn't rule on whether the infringement was justified.

She gave the federal government and the bands two years to negotiate a new regulatory regime.

If the negotiations are unsuccessful, it could end up back in court.

The court has dismissed an application for defendant status in the case by the Underwater Harvesters Association.

The Nuu-chah-nulth Tribal Council received notice of the appeal last week, and was not surprised, said vice-president Priscilla Sabbas-Watts.

“We were expecting it,” Ms. Sabbas-Watts said. “It's pretty much a standard response in aboriginal rights cases.”

Ms. Sabbas-Watts was unsure of how the appeal would affect the court ordered negotiations, but said the Nuu-chah-nulth will prepare to go ahead with talks nonetheless.

“There's a lot of logistical leg work to be done, and we've got a lot of work to do,” she said. “We'd like to see the negotiations carry forward.”

The lawsuit was filed in 2003 and the case has been in the court process since 2006.


	Aboriginal fisheries decision to be appealed Ruling affirmed Vancouver Island First Nations' right to catch and sell fish
	Tofino, B.C. — The Canadian Press The Globe and Mail December 11 2009

	The federal government will appeal a B.C. Supreme Court ruling that affirmed a Vancouver Island First Nations people's right to catch and sell fish, says a federal justice department spokesperson. The ruling last month dismissed the Nuu-chah-nulth people's claim to aboriginal title to their fishing territory but affirmed their aboriginal right on the west coast of the island to harvest and sell fish from their traditional territories. The Ehattesaht, the Mowachaht/Muchalaht, the Hesquiaht, the Ahousaht, and the Tla-o-qui-aht bands filed the lawsuit six years ago, arguing that their ancestors fished and traded fish, and they should have a modern-day right to fish commercially. They argued that Canada's fisheries regime unjustifiably infringes on that right and largely excludes them from the commercial fishery. The court agreed, but the federal government filed its notice of appeal on Dec. 3. “The Government of Canada believes that the B.C. Supreme Court decision in Ahousaht et al v. Canada and B.C. raises important issues that require further consideration by the B.C. Court of Appeal,” said Justice Department spokeswoman Carole Saindon. Ms. Saindon wouldn't disclose what those issues were. The federal government argued at trial that the Nuu-chah-nulth do not have an aboriginal right to trade or sell fish, and that federal legislation does not infringe on any rights they do have. If there is any infringement, the federal government said it's necessary to conserve and manage the fishery. In an interview after the ruling, lead federal lawyer Michael Doherty said the ruling gave the Nuu-chah-nulth “less than a commercial fishery, but more than just an exchange of goods.” “But no one knows what this means,” he said. In her May judgment, Madam Justice Nicole Garson affirmed the Nuu-chah-nulth's right to catch and sell ocean resources, but didn't rule on whether the infringement was justified. She gave the federal government and the bands two years to negotiate a new regulatory regime. If the negotiations are unsuccessful, it could end up back in court. The court has dismissed an application for defendant status in the case by the Underwater Harvesters Association. The Nuu-chah-nulth Tribal Council received notice of the appeal last week, and was not surprised, said vice-president Priscilla Sabbas-Watts. “We were expecting it,” Ms. Sabbas-Watts said. “It's pretty much a standard response in aboriginal rights cases.” Ms. Sabbas-Watts was unsure of how the appeal would affect the court ordered negotiations, but said the Nuu-chah-nulth will prepare to go ahead with talks nonetheless. “There's a lot of logistical leg work to be done, and we've got a lot of work to do,” she said. “We'd like to see the negotiations carry forward.” The lawsuit was filed in 2003 and the case has been in the court process since 2006.