Justifying Canada’s Infringement: Trial Heads to Ahousaht in Nuu-Chah-Nulth Fisheries Justification Trial

The Nuu-Chah-Nulth returned to court exactly one year ago after negotiations with Canada on how to accommodate their Aboriginal right to fish and sell fish failed. This most recent stage of court hearings will determine whether Canada’s infringement of these rights is justified and what, if any, steps Canada has to take to accommodate the Nuu-Chah-Nulth’s rights. Today, the BC Supreme Court will hold a hearing in the community of Ahousaht.


Back in 2009 five Nuu-Chah-Nulth Nations proved their Aboriginal right to fish and sell fish in court, withstanding several appeals. This marked the first case in Canada (outside of a treaty) where the right to fish and sell fish of any species available had been established. The rights were established on a strong evidentiary record which showed that fishing was “an overwhelming feature” of a Nuu-Chah-Nulth way of life, with Justice Garson noting that “even when Pérez, the first European to contact the Nuu-Chah-Nulth, arrived several miles off shore, the very first act of the Nuu-Chah-Nulth people was to offer to trade fish with him.”

Implementing Rights

Implementation of the rights recognized by the court has proven more challenging. In the first phase of trial back in 2009, the court declined to rule on whether that infringement of the Nuu-Chah-Nulth’s rights was justified. Instead, the court gave the parties two years to negotiate a way of accommodating the Nations’ rights.
If the parties could not reach an agreement, either party could come back to court to ask for a determination of whether Canada’s infringement is justified. Five years of failed negotiations have brought the parties back to court for the current “justification” trial. The Nations continue to plead with Canada to implement their rights (primarily through the  Nations’ fishing plans), while Canada maintains that its past and ongoing infringement of Nuu-Chah-Nulth’s rights is justified by its responsibility to balance competing societal interests.

After more than 115 days spent in court, the justification trial is headed to the community of Ahousaht, almost an entire decade after Justice Garson’s initial visit to the community for portions of the trial which established Nuu-Chah-Nulth’s fishing rights in May of 2006. Here, testimony by Nuu-Chah-Nulth will be provided by elected Chief Francis Frank of Tla-o-qui-aht. In addition to this oral testimony, the community will provide visual testimony through its display of Chief Maquinna’s ceremonial curtain and Nuu-Chah-Nulth’s HuupuKwanum, which is symbolized by a carved wooden box that contains and represents the gifts from Naas the Creator: the rights, responsibilities, titles, ownership and territory of Nuu-Chah-Nulth families and Chiefs. It is these gifts that have made the Nuu-Chah-Nulth who they are:  fishing peoples.

Justifying Infringement

While these visual representations illustrate the rights of Nuu-Chah-Nulth, entering the community provides its own testimony. Like other Nuu-Chah-Nulth communities, upon arrival into Ahousaht you can see remnants of old trawlers that once took part in commercial fisheries before increasing regulation, at times deliberately targeting Indigenous fishers, drove the Nations from the commercial fisheries. The vision of these abandoned trawlers stands in stark contrast to the rich history of Nuu-Chah-Nulth as fishing peoples who reliedon a variety of fish to trade commercially to support their way of life long before contact with Europeans.

This case will ultimately determine whether Canada’s past and ongoing infringement to Nuu-Chah-Nulth’s fishing rights is justified and what, if any, steps Canada has to take to accommodate the Nuu-Chah-Nulth’s rights. This case is also interesting in that the federal government, despite its renewed mandate, has not adjusted its position with regard to Nuu-Chah-Nulth’s fishing rights – rights which were proven on a very strong evidentiary record. The fact that the Nuu-Chah-Nulth had to take Canada to court after they have already proven their rights is indicative that Canada continues to jealously guard fisheries resources.

This case also provides an opportunity for the court to facilitate active involvement of Indigenous communities in fisheries management. If the court rules that Canada’s infringement is not justified, a clear and obvious solution is to implement the Nations’ own fishing plans – which creates a level of certainty whilealso meaningfully recognizing Nuu-Chah-Nulth’s fishing rights. This approach would seemingly work in other contexts and eliminate the need for expensive litigation and drawn out negotiations that often fail to provide adequate solutions.

The trial is expected to wrap up this month, but it could take several more months before the court issues its decision. A follow up blog post will be written when the decision is released.

The community, accessible only by water, will have boats running throughout the day to accommodate those who wish to view the trial. Court session will begin at 10:00 am in the Ahousaht high school gymnasium.

History of the case:

BC Supreme Court (2009) – After 123 days of trial, Madam Justice Garson concluded that the five Nuu-Chah-Nulth plaintiff    Nations have an Aboriginal right to fish for any species of fish in their territories and a right to sell that fish. This marks the first case in Canada (outside of a treaty) where the right to sell fish of any species has been established and only the second case where the Aboriginal right to sell fish has been established.

BC Court of Appeal (2011) – The court affirms the Nations’ right to fish and sell fish with the exception of geoduck (a type of clam). Canada appeals to the Supreme Court of Canada.

Supreme Court of Canada (2012) –  The court sends the case back to the BCCA to be reconsidered in accordance with its decision of Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56.

BC Court of Appeal (2013) – The court concludes that the methodology used by the trial judge was consistent with the Lax Kw’alaams decision and re-affirms the Nation’s right to fish and sell fish with the exception of geoduck. Canada appeals to the Supreme Court of Canada.

Supreme Court of Canada (2013) – The court refuses to hear Canada’s appeal and allows the lower court decisions to stand.

BC Supreme Court (March 9, 2015 – present) –  Justification Trial  is underway.  The lower courts concluded that Canada’s fisheries regime infringed the Nations’ rights to fish and sell fish but did not rule on whether that infringement was justified.  Instead they left it to the parties to negotiate a way of accommodating the Nations’ rights. Unable to reach agreement on accommodation, the parties have returned to the courts.

A link to the lower key decisions can be found here:

BC Supreme Court (2009)

BC Court of Appeal (2011)