The Nuu-chah-nulth Tribal Council claimed a legal victory Tuesday after the B.C. Supreme Court affirmed the right of aboriginals to sell the seafood they harvest.

In a lengthy written decision, Justice Nicole Garson gave the aboriginal people of the west coast of Vancouver Island the right to harvest and sell fish and other seafood in their territory, although the right is not unrestricted and must be negotiated with B.C. and Canada over the next two years.

Garson recognized the aboriginals’ territory as extending nine nautical miles offshore — not the 100 they had asserted — and added that their “claims to aboriginal title to their fishing territories are dismissed.”

Garson said the natives “are entitled to a declaration that they have aboriginal rights to fish and to sell fish” and have proven that the “fisheries regulatory regime (which includes statutes, regulations and policies) has excluded them from the fishery and infringed their aboriginal rights.”

She added that Canada “led 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....”

Cliff Atleo Sr., president of the tribal council, said he is “very pleased” the decision finally recognizes aboriginals’ traditional culture of trading seafood, including with the first Europeans to arrive on the B.C. coast.

He added there is “no question” the decision would assist other coastal first nations in their own fight to obtain the right to trade in seafood as their ancestors once did.

Michael Doherty, lead counsel for the Attorney-General of Canada, confirmed the decision is an important one but also noted that the application of the right to sell seafood remains to be negotiated and in his view should not include the right to sell fish caught for food and ceremonial purposes.

Ottawa has not yet decided whether to appeal.

Shawn Robins, communications director for the B.C. Attorney-General’s Ministry, said the provincial government is reviewing the complex judgment and is reserving comment until later in the week.

Phil Eidsvik of the BC Fisheries Survival Coalition said he is pleased the decision “does not affect DFO’s ability to manage the fishery” and does not “create race-based fisheries.”

The Nuu-chah-nulth launched its writ in June 2003, the trial began in April 2006 (with evidence heard in Vancouver and the native community of Ahousaht), and the closing legal arguments occurred in March 2009.

Five bands with 4,341 members were involved in the suit: the Ehattesaht, the Mowachaht/Muchalaht, Hesquiaht, Ahousaht, and Tla-o-qui-aht.

They asserted that at the time of European contact, the trade in fish by their ancestors was an integral part of their culture. The court relied in part on the journals, logs, and diaries of European explorers and traders.

“I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources,” Garson wrote.

lpynn@vancouversun.com

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