Ahousaht Indian Band v Canada (Attorney General)
Court: BC Court of Appeal (Reconsideration directed by the Supreme Court of Canada)
Citation: 2013 BCCA 300
TAGS: Fishing Rights; Commercial Harvesting Rights; Aboriginal Rights
Where there has been an established pre-contact practice of commercial harvesting, commercial harvesting can be protected as an Aboriginal right.
In Ahousaht Indian Band v Canada (Attorney General), the British Columbia Court of Appeal (BCCA) reconsidered a previous decision as to whether several Nuu-Chah-Nulth communities possessed the Aboriginal right to fish commercially. The Court found that they did have the right to fish and sell all fish in the commercial marketplace, aside from geoduck clams, which could not have been harvested with pre-contact practices.
The Nuu-Chah-Nulth communities have lived on the west coast of Vancouver Island since time immemorial and submitted evidence of their extensive harvesting practices that had been ongoing since long before Canada existed. The action was brought to reclaim the fisheries that government regulations had displaced them from.
At trial, the judge accepted the evidence that commercial fishing was a pre-contact practice integral to the Nuu-Chah-Nulth. The judge ordered for Canada to negotiate with the Nuu-chah-nulth, but Canada appealed the decision. At the first hearing by the BCCA, the Court agreed with the trial judge. Canada appealed to the Supreme Court of Canada (SCC), which redirected the trial back to the BCCA with consideration of the test laid out in Lax Kw’alaams Indian Band v Canada (Attorney General). The BCCA came to the same conclusion as they had prior to the appeal and dismissed Canada’s claim. Canada was again told to negotiate with the Nuu-chah-nulth, this time with their Aboriginal rights recognized.
Why this Case Matters:
This case established that commercial fishing can be protected as an Aboriginal right. The BCCA allowed for the demonstration of pre-contact exchange of fish in both social and ceremonial settings to count as evidence of pre-contact fish trade. The Court held that trade did not have to be for the purpose of accumulating wealth to count as a commercial right.
Supreme Court Judgment: