On Monday March 9, 2015, a fishing trial began outside a Vancouver Court House.
With the lack of Nation-to-Nation relationships between the First Nation and the Canadian Government, disputes — in this case fishing disputes — must be handled by the provincial courts.
The Nuu-chah-nulth Nations are back at the B.C. Supreme Court of Canada in order to secure their Aboriginal rights to fish and sell that fish from their territories on the west coast of Vancouver Island, a deal implemented by the federal government in 2009. That was the plan, anyway.
But for over the past five years, there has been nothing but frustrating discussions and countless meetings with Fisheries and Oceans Canada (DFO) — meetings that have amounted to nothing but have forced the five Nations to return to Court in early March.
Precedent had already been established in the 2009 trial decision, which concluded that the five Nuu-chah-nulth Nations (Ahousaht, Ehattesaht/Chinehkint, Hesquiaht, Mowachaht/Muchalaht and Tla-o-qui-aht) have Aboriginal rights to fish and sell that fish. The 2009 court case was called the Ahousaht et al vs. Canada decision.
The 2009 decision and appeal provided the five nations with a limited window to negotiate a “new fisheries regime” based on the native rights of the five nations.
And yet today, the five Nuu-chah-nulth nations are still fighting the government for the right to fish on their traditional territories and sell that fish without legal consequences despite an earlier agreement to negotiate and come to a resolution. These matters should have been resolved and yet they are back in court.
“The Nations have developed sustainable fishing plans to implement our rights,” said Francis Frank, Chief Councilor and lead negotiator for the Tla-o-qui-aht First Nation.
“Our fishing plans are based on the conservation needs of the resource, and accommodate access for on-going commercial and recreational fishing in our territories. Yet instead of negotiating an agreement that would put our fishers to work fishing in our territories according to our Aboriginal rights, the Federal Fisheries Minister would rather waste Canadian taxpayer’s money with another lengthy Court proceeding.”
This is typical of the kind of disordered thinking that comes from the federal government, causing legal confusion affecting any Canadian province and territory; especially when they look up to the federal for guidance — which on one hand offered an apology to Indian residential school survivors and on the other refuses to support an independent inquiry into murdered and missing Indigenous women.
One of the worst criticisms of the government is that they play at attrition — being as huge as the federal government is, with the amount of resources it has, it can simply wait out the opposition. At its worse, we see residential school survivors eligible for support simply die because no help can be secured.
For the five Nuu-chah-nulth nations, they charge the federal government with inaction. Kiista, Hereditary Chief and lead negotiator for Ahousaht, says that the federal government “has been completely unresponsive to what we have been discussing the last five years… DFO’s long-term ‘offer’ on only two species is an insult to our Nations and the original Court decision.”
On December 23, 2014, the DFO provided a limited offer to the five Nations, but for minimal allocations based on regular commercial licences for Chinook and herring. “The DFO ‘offer’ appears to be motivated by the impending return to Court, rather than any real attempt to negotiate an agreement,” added Kiista.
It is difficult to ask for a seat at the table when all the seats and the table are owned by the government.
The five nations are a seeking reasonable opportunities to restore their fishing culture and foster economic independence in their communities,” said Debra Foxcroft, OBC, President, Nuu-chah-nulth Tribal Council. “Rather than support the interests of Nuu-chah-nulth fishers to make a modest living from the sea resources, the Conservative government would rather go to Court to keep Nuu-chah-nulth out of the coastal economy.”
This new trial will see the government of Canada attempt to justify its past and ongoing infringements of the Nuu-chah-nulth fishing and Indigenous rights.
There was also a concern, raised earlier this year, regarding the opening of the west coast Vancouver Island to commercial roe and spawn-on-kelp fishing, just like the previous year. The Nuu-chah-nulth fisherman and community members remained concerned that herring stock was not sufficiently rebuilt to allow for commercial fishing.
It almost makes no sense — though they will claim some sort of logic — why the federal government would put so much effort into working against a previous provincial ruling, when at the same time, it claims to have our country’s best resources/interests at heart.
If we really want to dig deeper to figure out who has the country’s best interests at heart, perhaps stopping the systemic annihilation of treaty rights and the genocide of its Indigenous population would be a good start.
The fight for aboriginal land use rights is not theirs to fight alone. Another member in this dispute told me that she definitely sees the ties between their struggle and the, “larger context of Idle No More, which is about building sovereignty and recognition for Aboriginal rights. As stewards and protectors of the land and water, the five Nuu-chah-nulth Nations are developing community run fisheries that walk the talk of ‘everything is one,’ protection of the environment for future generations and put the control in the hands of First Nations to build their economies, feed their families and assert the rights they have always had, but hadn’t been recognized by Canada.”
“These five Nations have already had their rights upheld by Canada’s highest court, have presented fishing plans to the Canadian Government (over five years), however these fishing plans aren’t taken seriously — even after the Supreme Court decision,” she said.
The following three bullet points are resolution points for the five Nuu-chah-nulth Nations:
DFO with a mandate to negotiate fisheries that accommodate Nuu-chah-nulth Fishing Rights. Nuu-chah-nulth Nations are willing to negotiate a fair settlement that minimizes impacts on other harvesters.
Negotiating a settlement based on the fishing plans as presented by the Nations, as the original Court decision decided and subsequent appeals upheld.
Allowing the Nuu-chah-nulth fisheries to test-drive elements of rights-based fisheries while the final legal issues are decided by the courts. This includes permitting elements of the fisheries which are outside of existing commercial licensing.
Photo: flickr/ Magnus.