Question Period Note: Five Nuu-Chah-Nulth (New-chal-nuth) First Nations

Five Nuu-Chah-Nulth (New-chal-nuth) First Nations

The Government of Canada is working collaboratively with the five Nuu-chah-nulth First Nations to advance reconciliation through negotiation of a Reconciliation Agreement for Fisheries Resources.

My department is continuing to review the 2021 Five Nations Multi-Species Fishery Management Plan in light of the Court of Appeal’s decision.

Neither party has sought leave to appeal the decision of the BC Court of Appeal in Ahousaht First Nation v. Canada to the Supreme Court of Canada.

Canada looks forward to continuing to work collaboratively with the Five Nations in implementing their right-based sale fishery.

• 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 nine miles] and to sell that fish but declined to rule on whether the infringement is justified.
• Following the establishment of the right, the parties have been in negotiations and at the request of the Five 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 concluded an Incremental Reconciliation Agreement for Fisheries Resources on September 10, 2019.
• In 2014, the Five Nations initiated a return to court on Canada’s justification of infringements on their rights. 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 sets out the remedy ordered by the court and allows 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 Nations, other potentially impacted First Nations, and relevant stakeholders on this initial plan for the 2019-20 season.
• The Five Nations appealed the April 2018 BCSC decision. The appeal was heard in February 2019. The decision was rendered on April 19, 2021, and neither party sought leave to appeal.
• The Five Nations have also brought a civil claim in the British Columbia Supreme Court (and a separate judicial review application before the Federal Court of Canada, which was in abeyance until the end of April, 2021) to challenge various aspects of the 2019-20 Fish Management Plan.
• An additional legal action was launched by the Five Nations to seek an 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 managed that year’s salmon fishery respecting both the Fisheries Management Plan for the Five Nations’ rights-based fishery and the Integrated Fisheries Management Plan that guides management of the broader salmon fisheries on the Pacific coast. At the end of the season, DFO conducted a year-end review and consulted with the Five Nations on any adjustments that may be required to the Five Nations’ multi-species Fisheries Management Plan in 2020.
• The 2021/22 Fisheries Management Plan is in place and right-based sale fisheries are ongoing or complete for salmon, groundfish, crab, prawn and gooseneck barnacles and Sea Cucumber. The opportunity to harvest Sea Cucumber has been added into the plan for the first time in 2021/22.
• DFO is in the process of reviewing the 2021/22 Fisheries Management Plan in light of the April 19, 2021 BCCA decision and plans to amend the Plan in fall/winter. Allocation increases for offshore and nearshore chinook were made in-season in July, 2021. Sea Cucumber and Offshore Coho allocations were assessed in September, 2021 and will be reflected in the FMP when it is amended. The review of other components of the Plan is ongoing and further in-season changes may occur.
• A protest fishery was declared by the Five Nations hereditary leadership on August 04, 2021, authorizing Five Nations’ fishers to exceed DFO’s Offshore Chinook and Halibut allocations. In addition, Mowachaht-Muchalaht First Nation announced a protest fishery on September 02, 2021 declaring that fishers could exceed DFO’s Muchalaht Chinook allocation for the Burman and Gold Rivers. Both protest have now ended.
• A Reconciliation Funding Agreement (RA) was in place for 2019-20 and 2020-21. The purpose of the RA is to support the Five Nations in the formation of the Ha’oom Fisheries Society, to support the development of the RAFR and pre-implementation support towards aspects of the RAFR including: i) collaborative governance (including monitoring costs); ii) increased fisheries access; iii) community fishery (including foregone fishery opportunities; and iv) capacity building. A subsequent Agreement been developed for 2021/22.
• Canada and the Five Nations will continue to meet on a regular basis to negotiate a comprehensive reconciliation agreement for fisheries resources that includes, but is not limited to, increasing fishery access, a community based fishery and collaborative governance.

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