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The Aboriginal right to sell fish: Ahousaht Nation et al v Canada

On November 3, 2009, the B.C. Supreme Court released its judgment in Ahousaht Nation  v. Canada. Madam Justice Garson (now J.A.) concluded that all five Nuu-chah-nulth plaintiffs have aboriginal rights to fish in their traditional territories and sell that fish into the commercial marketplace. This marks only the second case in Canada in which aboriginal rights to sell fish have been established outside of a treaty and the first such case that expressly applies that right to any species of fish available in the First Nations’ territories.

The decision is the culmination of a very long (123 days) and complicated trial that examined in detail the pre-contact way of life of the Nuu-chah-nulth peoples of the West Coast of Vancouver Island and the modern regulation of the West Coast Fishery.  The evidence was extensive, including of journals, reports, and letters left by the Spanish, English and American explorers and fur traders, multiple expert reports, volumes of fisheries policies, and testimony of Nuu- chah-nulth people who spoke about their territories and their fishing culture.

Madam Justice Garson’s decision, which exceeds 300 pages, is a very interesting study in the application of many legal principles set down by the Supreme Court of Canada over the years to a fascinating and complex evidentiary record.  Many of these legal principles had previously been understood only in the abstract because there have been few opportunities to test the application of these principles in practice.  This case provided ample opportunity and the decision provides guidance on the practicalities of proving aboriginal rights.

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