Court upholds ruling that found fisheries infringed on First Nations' rights

Canada must remedy problems in commercial fishery regulations arising from a legal battle launched in 2003 by a group of Vancouver Island First Nations, the B.C. Court of Appeal has ruled.

While there is no demonstrated need to make mandatory orders, they would “remain available if Canada does not act diligently to remedy the problems,” Justice Harvey Groberman wrote in a decision released Monday.

A three-judge panel unanimously upheld parts of an April 2018 ruling by the B.C. Supreme Court that found Canada's management of regular commercial fisheries unjustifiably infringed on the First Nations' rights.

In that judgment, Justice Mary Humphries gave Ottawa one year to offer the plaintiffs opportunities to exercise their rights to harvest and sell salmon, groundfish, crab and prawn in a manner that remedied those infringements.

The decision outlined several specific infringements related to the allocation of Pacific salmon and directed Ottawa to take a more “generous approach” to chinook allocations for the First Nations, noting the policy at the time gave recreational anglers priority.

But the five Nuu-chah-nulth First Nations — Ehattesaht, Hesquiaht, Ahousaht, Tlaâ`oâ`quiâ`aht and Mowachaht/Muchalaht — appealed the decision, which dismissed their argument that Canada failed in its duty to consult them by refusing to implement proposals raised in discussions outside the courts to resolve the dispute and negotiate new policies.

The Appeal Court found Humphries did not err in that part of her decision. But the court said she did make an error in limiting certain commercial fishing rights to vessels of a particular size and fishing capacity.

Humphries “went too far” in her interpretation of a 2009 B.C. Supreme Court decision that upheld the nations' right to commercial fisheries, Groberman wrote.

She found that right should be interpreted as a “non-exclusive, small scale, artisanal, local, multi-species fishery … using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation,” the Appeal Court judgment says.

Humphries was entitled to interpret the earlier ruling, Groberman wrote, but she did not have the authority to diminish the nations' commercial fishing rights. If upheld, her interpretation would have done so, he said.

Nuu-chah-nulth leaders hailed the decision as a major victory, while pushing Fisheries and Oceans Canada to implement their rights immediately.