Law Times

Page 10 April 28, 2014 • lAw Times www.lawtimesnews.com Commercial fisheries battles loom Injunction in favour of First Nations spurs similar claims FOCUS etween 1803 and 1805, Chief Ma- quinna held American sailor John Jewitt captive on Vancouver Island's west coast. He and a fellow captive were fortunate to be the only shipmates on the Boston who escaped slaughter but they were to spend two years in captivity with the threat of execution hanging over them. Before his rescue, Jewitt charted his ordeal in a diary that provided vital clues in a much later dispute between the government and ab- originals that came to a climax earlier this year. On Jan. 30, the Supreme Court of Canada effectively upheld a decision recognizing the aboriginal rights of five First Nations bands to run a commercial fishery. Ahousaht Indian Band and Nation v. Canada (Attorney General) symbolized the climax of a decade-long battle and has implications across Canada, says Toronto-based lawyer Senwung Luk, of Olthuis Kleer Townshend LLP. "I think it's one of the rare, if not the only, instances of courts recog- nizing a commercial ab- original fishing right since 1996," he says. at 1996 case, R. v. Van der Peet, established that in order to prove an aborigi- nal fishing right, commu- nities must show the right existed before Europeans had made contact and was part of a practice, custom or tradition integral to their distinctive culture. Jewitt's diary described significant intertribal trad- ing of fish and other prod- ucts soon aer the earliest European explorers had landed. is material played an important part in the Court of Appeal for British Colum- bia's 2011 decision to dismiss a narrower interpretation of aboriginal fishing rights put forward by the government that argued exchanges of fish in social and ceremonial settings couldn't be used to show trade existed before contact with Europeans. Luk, whose firm acted at the appeal court for inter- vener the Saugeen Ojibway Nation, attacks the logic of that interpretation. He asks: "If two captains of industry are cousins and make a busi- ness deal on the golf course, is that not commerce?" Appeal court Justice John Hall agreed with the trial judge about the link between trade and cer- emonial transactions. "I doubt that any bright line can be drawn in con- nection with such activities as was urged by Canada and the intervener British Columbia," he wrote. e court also rejected the argument that fishing rights only existed if First Nations had traded fish for the purpose of accumulating wealth before settlers arrived. Until now, there has been no portable English-language treatise to which you could turn for a complete and holistic understanding of Canadian Indigenous peoples' law. Written by a prominent author, educator and practitioner of Aboriginal law, this invaluable resource offers all the relevant historical and theoretical contexts to establish the legal framework and aid the fundamental understanding of Aboriginal law. 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New PublicatioN Terms Of COexIsTenCe: IndIgenOus PeOPLes and CanadIan Law SébASTIEN GrAmmOND available Risk-FRee FoR 30 Days order online: www.carswell.com call toll-Free: 1-800-387-5164 in toronto: 416-609-3800 Get the first enGlish-lanGuaGe treatise with a comprehensive and holistic viewpoint on indiGenous peoples' law in canada "ey were trying to require aboriginal communities to show evidence that they looked like modern capitalist communities in order to claim an aboriginal right, which is an extraordinary view," says Luk. e government's latest judicial setback was the second time it had tried to take its case to the Supreme Court. Luk says it finally closes a judicial avenue to challenging First Nations' fishing rights and is relevant for fisheries battles taking place across Canada. e January decision "seems to have sent a clear signal to sev- eral other First Nations that their claims to commercial fishing rights have some merit," says Mar- tin Olszynski, an assistant profes- sor at the University of Calgary Faculty of Law. On Feb. 28, five Nuu-chah- nulth First Nations secured what Olszynski calls a "relatively un- precedented" injunction against the Department of Fisheries and Oceans Canada. e department had decided to open a commer- cial roe-herring fishery against departmental officials' advice and despite the fact that the Nuu- chah-nulth now have a commer- cial right to exploit roe-herring at the site in question. Olszynski calls the depart- ment's actions "odd." "Why rush to open a fishery that has been closed for years, especially when you now know that several First Nations have a commercial right to such a fishery which will have to be accounted for in management decisions go- ing forward?" he asks. e case appears to have in- spired several other First Nations to threaten similar legal action and the fight is far from over. "e legal reality on the ground right now is that the existing fisheries management framework has been declared an infringement on the five First Nations' aboriginal commercial rights," says Olszynski. "e Department of Fisheries and Oceans has been given two years to work out how it will ac- commodate those rights, failing which [it] is allowed to come to court with a justification [of in- fringement] argument. If the roe- herring incident is any indication, it's going to be a bumpy ride." A Department of Fisheries and Oceans spokesman said the government was continuing to consult and negotiate with the five Nuu-chah-nulth bands but would say little about the case itself. "Canada is committed to ad- dressing issues of aboriginal rights through consultation and negotiation," he said. He added: "As the parties are still before the British Columbia Supreme Court on the issue of whether Canada can justify the infringement found by the trial judge, it would be inappropriate to comment further." LT BY CHARLOTTE SANTRY Law Times B The government was suggesting First Nations would have to show they looked like modern capitalist communities in order to claim their rights, says Senwung Luk.

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