The British Columbia Court of Appeal upheld an earlier
decision by the BC Supreme Court recognizing the right of the
Nuu-chah-nulth First Nations to harvest and sell fish in their
traditional territories. The Court of Appeal agreed with the
Supreme Court of British Columbia's findings of
significant intertribal trade in fisheries products by the
ancestors of the Nuu-chah-nulth prior
to European contact to establish a commercial right to
Justice Chiasson, in his dissent, relied on the
Marshall (No. 1) decision to characterizes the
right of the Nuu-chah-nulth as a right to sell fish for the
modern equivalent of sustenance. However, the Court of Appeal
distinguished the Marshall decision as a treaty rights
case and characterized the rights of the Nuu-chah-nulth as an
Aboriginal right to sell fish.
Facts of the Case:
The Nuu-chah-nulth First Nations filed a statement claim
against the Attorney General of Canada claiming an Aboriginal
right to harvest various species of fisheries resources in their
traditional territory for "food purposes, social purposes,
ceremonial purposes, trade purposes, purposes of exchange for money
or other goods, commercial purposes or purposes of sustaining the
communities". In addition, the First Nations also
claimed the right sell fisheries resources on a commercial scale,
or in the alternative, "to sell for the purpose of
sustaining that band's or nation's community or, in the
further alternative, to exchange for money or other
The British Columbia Supreme Court recognized the
Nuu-chah-nulth Aboriginal right to fish and sell fish of all
species within their traditional territory. The Attorney
General appealed on basis that the hearing judge: (1) erred in her
legal analysis by failing to characterize the Aboriginal rights
claimed by the First Nations at the outset of her reasons; (2)
failed to categorize the rights to distinct species of fisheries;
(3) erred in finding that trade in fish was integral to the
distinctive culture of the Nuu-chah-nulth ancestors; and (4)
erred in finding that there had been a prima facie
infringement of the Nuu-chah-nulth rights.
Characterizing the Right:
The Court of Appeal reviewed the methodology of the trial
judge to determine whether the pre-contact practices of the
Nuu-chah-nulth supported a s. 35(1) rights claim to a
declaration of an Aboriginal right to fish and sell fish. The
Court of Appeal determined that the trial judge properly identified
the claims, assessed the evidence and decided the ancestral
practices translated into the modern right being claimed by the
"All Species of Fish":
The trial judge ruled the Nuu-chah-nulth's ancestral
practices of harvesting and trading in fisheries resources
translated into an Aboriginal right to fish and sell fish of
"all species of fish within the environs of their
territories". The Court of Appeal allowed the
appeal in part to exclude the Nuu-chah-nulth Aboriginal right
to harvest and sell geoduck clams. The evidence
before the Court did not support the Nuu-chah-nulth's ancestral
harvesting of this species of fisheries and therefore could not be
characterized as an Aboriginal right existing prior to contact with
Europeans. However, the Court did support the finding that
the Nuu-chah-nulth pre-contact practice was harvesting and
trading in a broad range of marine foods resources and that the
specific practice was not tied to "one species of fish and one
Trade in Fish Integral to the Distinctive Culture:
The Court of Appeal gave the trial judge a reasonable
degree of deference to the factual findings that the
Nuu-chah-nulth ancestral communities were engaged in trading
significant quantities of fisheries resources prior to contact with
the Europeans and that this practice was integral to the
Prima facie Infringement of the
The Court of Appeal upheld the previous ruling of a
prima facie infringement of
the Nuu-chah-nulth rights and varied the trial
judge's order to provide the parties further time to
negotiate a regulatory regime to accommodate the
Nuu-chah-nulth's Aboriginal rights to fish and sell
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