01/30/2014 05:08 EST | Updated 04/01/2014 05:59 EDT

High court nixes challenge of B.C. Nations' fishing rights

Five First Nations on Vancouver Island, who are part of the collective known as the Nuu-chah-nulth, have had their right to fish and sell nearly all species of fish found within their territories recognized by the nation's highest court.

The re-affirmation of Nuu-chah-nulth commercial fishing rights came Thursday morning when the Supreme Court of Canada dismissed the federal government's appeal of a B.C. court ruling.

The decision ends a decade-long legal fight between Canada and the Ahousaht, Ehattesaht/Chinekint, Hesquiaht, Mowachaht/Muchalaht and Tla­‐o­‐qui­‐aht nations over aboriginal economic fishing rights.

Nuu-chah-nulth Tribal Council president Deb Foxcroft said Thursday was a historic day.

“The decision by the Supreme Court of Canada affirms what Nuu-chah-nulth nations have always asserted and the B.C. courts have affirmed,” Foxcroft said in a written statement.   

“Nuu-chah-nulth are fishing people, dependent on sea resources for our food and our economies. Canada must work with our nations to design fisheries that meet our community needs, using our preferred means to fish, and in our preferred fishing areas.”

Courts uphold commercial fishing rights

The five bands had argued fisheries formed the backbone of their trading economy long before the arrival of Europeans, which translates into the right to conduct a modern commercial fishery and not just a subsistence food fishery.

The federal and provincial governments both challenged the claim, along with the B.C. Wildlife Federation, the B.C. Seafood Alliance and the Underwater Harvesters Research Society as intervenors in the case.

They government claimed there was no real evidence of commercial fish trading by First Nations' ancestors, but the B.C. Supreme Court, in the original ruling on the issue, disagreed.

It found expert testimony and historic records showed the bands did indeed have a right to fish within their territories and to sell that fish — a decision the Supreme Court of Canada, in refusing Thursday to hear the government's appeal, has now upheld.

Limits imposed

In the original case, the five bands successfully argued that more than 100 years of regulations by Canada diminished their access to the sea's resources and forced them out of the West Coast fishery.

The only exception is a specialized commercial clam fishery, which the B.C. Court of Appeal had earlier found was too technologically sophisticated to qualify for ancestral fishing rights.

B.C. Supreme Court 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.

However, Garson dismissed a claim of aboriginal title to the fishing territories themselves, saying that issue must be settled separately.

Her decision also upheld the federal government's control over all fisheries and urged 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.

The territories of the 14 Nuu-chah-nulth tribes stretch approximately 300 kilometres along the west coast of Vancouver Island, from Brooks Peninsula in the north to Point-no-Point in the south, and includes inland regions.