By Joel McKay
A B.C. Court of Appeal judgment in Vancouver last week could have a lasting impact on the province’s commercial fisheries.
The province’s highest court upheld an earlier decision that five Vancouver Island First Nations communities, known as the Nuu-chah-nulth, have the right to harvest and sell nearly any species of fish in their territory.
The decision is unique because the communities now have a constitutional right to participate in B.C.’s commercial fishing industry.
“One could interpret that as a right to sell fish for profit, which would be a pretty significant decision,” said Thomas Isaac, a partner with McCarthy Tetrault’s aboriginal law group and a former chief treaty negotiator for B.C.
The court made its decision based on the fact that the Nuu-chah-nulth nations have a long history of harvesting and trading fish in their territory.
“There was significant intertribal trade in early times,” Justice John Hall wrote in his decision.
Isaac said the decision could become problematic for the federal Department of Fisheries and Oceans (DFO) because it doesn’t say if that right extends to selling fish for profit or just to maintain a livelihood.
“It’s not clear what is the line between the right to sell fish and the right to engage in a full-blown commercial fishery,” said Isaac, who did not play a role in the case.
The court was divided on what the right to sell fish meant. The majority found that the Nuu-chah-nulth have the right to harvest and sell fish into the commercial marketplace.
Justice Edward Chiasson, on the other hand, believed the right to sell fish extended only to “attaining … the basics of food, clothing and housing.”
Matthew Kirchner, the lawyer acting on behalf of the Nuu-chah-nulth, said the case was the first of its kind in B.C. to provide First Nations with a broad-based right to sell fish.
“We’re not talking about roadside sales here … they’re entitled now to have their fair share of the commercial fishery,” said Kirchner, a partner with North Vancouver’s Ratcliff & Co. LLP.
For Cliff Atleo, the decision signals an end to a 20-year period that’s seen his community’s participation in the commercial fishery wither to slightly more than a dozen people.
“It provides us hope of reintroducing commercial activity into our communities,” said Atleo, president of the Nuu-chah-nulth Tribal Council in Port Alberni. “My stepfather brought me up and he trained me to be a fisher … and the hope is to reintroduce those family teachings to our people.”
Now, the five First Nations communities, which include the Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht Indian bands, have to sit down with DFO and figure out how much of the resources can be sustainably harvested.
One species that won’t be on that list is B.C.’s lucrative geoduck, a giant and rare mollusk that commands a premium in the market.
The appeal court ruled the First Nations don’t have a right to geoduck resources.
“Because the commercial geoduck fishery is what I would describe as a high-tech fishery of very recent origin, there can be no viable suggestion that the ancestors of the respondents could have participated in the commercial harvesting and trading of this particular marine resource,” Justice Hall found.
The decision could be a blow to other coastal First Nations who have wanted to get into the tightly controlled business for years (see “Bands want in on giant clam trade” – issue 1111, February 8-14).
The province’s geoduck fishery consists of 55 licences with an average individual value of $3.25 million.
Due to their value, commercial fishermen rarely trade or give up their licences.
In the past, First Nations have lobbied DFO to issue more geoduck licences to let them get into the business.
But the Underwater Harvesters Association (UHA) is against issuing new licences, saying it would cut into the pocketbooks of existing fishermen.
UHA executive director Michelle James welcomed the appeal court’s recent decision.
“The decision is a good one,” said James.
Meantime, Kirchner hopes the appeal court decision will change the way the federal government approaches treaty negotiations with coastal First Nations. In the past, Ottawa has been reluctant to include commercial fishing rights in treaty negotiations.
Kirchner said fishing rights weren’t on the table because First Nations first needed to prove their ancestors traded fish before contact with Europeans, which would be no easy feat. “What the Ahousaht group has shown is that it can be proved and it has been proved,” said Kirchner said. “So I think Canada is going to have to take a hard look at their position and see if it’s really serving them and First Nations and the public very well.”
Ottawa now has the option to appeal the ruling in a federal court. DFO said it’s reviewing the B.C. Court of Appeal decision, but refused to comment further.