Question Period Note: Ahousaht - BC Supreme Court – Five Nuu-Chah-Nulth First Nations

Ahousaht - BC Supreme Court – Five Nuu-Chah-Nulth First Nations

• A renewed nation-to-nation relationship based on recognition, rights, and co-operation with Canada’s Indigenous peoples is a top priority for our government.
• The BC Supreme Court reaffirmed the rights of the five First Nations to catch and sell fish in their Traditional Fishing Territories, and the Government is actively consulting with the five Nuu-Chah-Nulth First Nations and others on the 2020 fishing plan.
• At the same time, our government is working closely and in collaboration with the BC First Nations and all stakeholders towards a renewed salmon allocation policy that is in line with the Court’s decision and that respects Indigenous rights.

Background:
• In its decision dated November 3, 2009, the Supreme Court of British Columbia (BCSC) found that the Plaintiffs, five Nuu-chah-nulth First Nations on the West Coast of Vancouver Island, have an Aboriginal right to fish for any species of fish (excluding geoduck) within their court-defined fishing territories [which extend offshore 9 miles] and to sell that fish.
• The BCSC also concluded that this right was infringed, but declined to rule on whether the infringement is justified and directed Canada and the Plaintiffs to consult and negotiate on the manner in which the Plaintiffs’ rights could be accommodated and exercised.
• In 2010, following the establishment of the right, the parties set up a substantive consultation and negotiation process that was modelled on treaty negotiations. A significant challenge for these ongoing negotiations is that there is a different view on the scope of the right, which was described by the court as a right to sell fish into the commercial market place but not necessarily on an industrial scale.
• Since 2010, significant fishing access has been provided to the First Nations. For example, in 2007, the First Nations had 23 commercial licences and now have access to over 126 licences and additional quota.
• In 2014, the First Nations initiated a return to court on Canada’s justification of infringements on their rights.
• At the request of the First Nations, a new negotiation process was launched in March 2017. The Five Nations and federal officials completed a Framework Agreement on December 21, 2017, in order to initiate and guide the negotiation of a reconciliation agreement. The Five Nations and Canada have concluded an Incremental Reconciliation Agreement for Fisheries Resources (IRAFR) on September 10, 2019.
• The BCSC decision on infringement, released on April 19, 2018, provides clarity regarding the scope and scale of the Aboriginal right of the Five Nations and their preferred means of fishing.
• The BCSC issued an order on November 1, 2018 that set out the remedy ordered by the court and allow DFO to determine what must be done to implement the decision.
• Consistent with the November 1, 2018 court order, Fisheries and Oceans Canada (DFO) released an initial multi-species fishing plan for salmon, groundfish, crab, and prawn on November 30, 2018 and consulted the Five First Nations, other potentially impacted First Nations, and relevant stakeholders on this initial plan for the 2019 season.
• The Five Nations have indicated their frustration with the fishing plan and initiated two legal actions. Firstly, an appeal to the BC Court of Appeal regarding the April 19, 2018 BCSC decision and a decision is expected late 2019.
• The second legal action was to seek injunction through the Federal Court. In their filing with the court, the five Nuu-Chah-Nulth First Nations challenged DFO’s in-season Chinook salmon Total Allowable Catch (TAC) adjustment, which increased the Area G commercial TAC for chinook. On August 16, 2019, the injunction motion was dismissed by the Court. In light of this decision, DFO will continue to manage this years’ salmon fishery respecting both the Fisheries Management Plan (FMP) for the Five Nations rights-based fishery and the salmon Integrated FMP. At the end of the season, DFO will conduct a year-end review and consult with the Five Nations on any adjustments that may be required, to the Five Nations multi-species Fisheries Management Plan in 2020.
• They have also expressed a desire to move forward with more comprehensive reconciliation negotiations expeditiously; Canada has a meeting with the Five Nations on reconciliation scheduled for December 6, 2019.
• DFO is actively consulting with the Five Nations and others on a 2020 multi-species fishing plan.

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