BC Court of Appeal affirms Aboriginal commercial fishing rights

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On July 2, the British Columbia Court of Appeal released a decision recognizing the Aboriginal rights of First Nations on the west coast of Vancouver Island to a commercial fishery.

The decision, called Ahousaht Indian Band and Nation v Canada (Attorney General), is not only a landmark decision for the communities directly involved, but also for the law of Aboriginal rights across Canada.

OKT was honoured to represent the Saugeen First Nation and the Chippewas of Nawash Unceded First Nation as intervenors in this appeal.

The court case was brought by several Nuu-Chah-Nulth communities on the west coast of Vancouver Island, who, as the trial decision had found, had extensively harvested products of the seas long before the arrival of Europeans.  In fact, when the first Europeans went to visit the area in the late 18^th century, the Nuu-Chah-Nulth took the initiative to begin trading with them.  Government regulation in the late 19^th and 20^th centuries gradually displaced the Nuu-Chah-Nulth from their fishery, leading them to seek to reclaim it through legal action.

The Supreme Court of Canada had established that in order to prove an Aboriginal right, an Aboriginal community must show that the right is continuous from a pre-European-contact practice, custom, or tradition integral to the distinctive culture of the community.

As such, the Nuu-Chah-Nulth tried to show that evidence of its pre-contact practices meant that it had the Aboriginal right to commercial fishing today.  The trial judge accepted this argument.  Canada unsuccessfully appealed that decision to the BC Court of Appeal, and further unsuccessfully sought leave to appeal to the Supreme Court of Canada.  The Supreme Court sent the case back to the BC Court of Appeal to consider in light of another Supreme Court decision that had just come out.

On reconsideration, the BC Court of Appeal affirmed the existence of the Aboriginal commercial fishing right.  This is a victory for the Nuu-Chah-Nulth and a culmination of years of struggle for the recognition of their rights.

Importantly for the rest of Canada, the Court rejected attempts by Canada, BC, and industry groups to say that evidence of pre-contact exchanges of fish in social and ceremonial settings could not count toward showing that there was pre-contact trade in fish.  The Court of Appeal held that this was a question dependent on the facts of the case and should not be settled so rigidly.  The Court of Appeal therefore rejected an unrealistic approach that would have meant, for example, if applied to a contemporary context, that a business deal done at a corporate box in a hockey game was not really commerce because it had a social element to it.

The Court also rejected attempts to say that having traded fish (pre-contact) for the purpose of accumulating wealth was essential to proving a commercial fishing right.  Such a standard would seem to disqualify many Aboriginal nations from commercial harvesting rights merely because their traditional economy was structured differently from modern capitalism.

By Senwung Luk