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In this file photo from Nov. 3, 2009, members of the Nuu-chah-nulth First Nations celebrate a court victory in Vancouver, B.C., following litigations against Canada and British Columbia in what is even today an ongoing effort to have their rights and title to sea resources recognized. (Lyle Stafford For The Globe and Mail)
In this file photo from Nov. 3, 2009, members of the Nuu-chah-nulth First Nations celebrate a court victory in Vancouver, B.C., following litigations against Canada and British Columbia in what is even today an ongoing effort to have their rights and title to sea resources recognized. (Lyle Stafford For The Globe and Mail)

Trudeau should turn his focus to aboriginal fishing-rights court case Add to ...

It is one thing for Prime Minister Justin Trudeau to promise his government will have a new, respectful relationship with First Nations, but delivering, when you inherit a bureaucracy entrenched in its policies, is something else again.

Launching an inquiry into murdered and missing indigenous women and adopting the United Nations Declaration on the Rights of Indigenous Peoples were good and easy first steps.

But Mr. Trudeau has yet to deliver on the promise, outlined in his mandate letter to new Justice Minister Jody Wilson-Raybould, to review federal litigation and “end appeals or positions that are not consistent with our commitments, the Charter or our values.”

One case that needs to be reviewed is taking place in the Supreme Court of British Columbia, where Ottawa is battling with five Vancouver Island bands over fishing rights. The fishing-rights case is troubling because the bands, in a lengthy trial and appeal, have already won the right to have commercial fisheries. In 2009, Justice Nicole Garson of the B.C. Supreme Court ruled the bands, all part of the Nuu-chah-nulth First Nations on the west coast of Vancouver Island, “have aboriginal rights to fish for any species of fish in the environs of their territories and to sell fish.”

Justice Garson said the bands had harvested and traded in fish long before the arrival of Europeans, and must be allowed to continue to do so.

But taking into account the realities and complexities of the larger society that has developed in British Columbia over the past century, she said the bands do not have the right to fish “on a large industrial scale.” Justice Garson called on Fisheries and Oceans Canada – still known by its former acronym DFO – to negotiate an agreement that accommodated the rights of the bands, “without jeopardizing Canada’s legislative objectives and societal interests in regulating the fishery.”

That kind of a deal should have been negotiable, but talks between the DFO and the bands failed – and the whole matter went back to court, with First Nations arguing the government only offered a fishery with unfair catch limitations.

Last week, the trial reached Day 99, and about another 60 days of argument are expected. This marathon legal battle doesn’t seem to fit Mr. Trudeau’s vision of a new, respectful relationship.

“No relationship is more important to me and to Canada that the one with Indigenous Peoples,” Mr. Trudeau wrote in his mandate letter to ministers. “It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation and partnership.”

Justice Garson, in a legal manner, said pretty much the same thing in her 2009 judgment – but six years later the fight continues.

Creating a new commercial fishery, when existing fisheries are already in place, is not going to be easy. The halibut, salmon and herring catches are already fully allocated. But the important thing to remember is that the courts have ruled the Nuu-chah-nulth were the first to have a commercial fishery, and it was unfairly taken away from them. So it must be restored.

There was a time when almost every Nuu-chah-nulth family fished and traded the catch. It was the basis of their economy and culture. Now their boats, pushed out of the commercial fishery by high licence prices and a limited availability of licences, sit idle at the dock.

In her decision, Justice Garson quoted the evidence of Stanley Sam, then 78, to illustrate how fishing in the village of Ahousaht has been restricted in his lifetime.

“What changes there is today, you see all the boats on the shore there, you see 12 boats, all destroyed, because the sea is all closed, you don’t see people in their boat any more,” he said, speaking in his rough but evocative English. “You see there, you take a picture of it, and it shows around the whole world how we suffer today.”

The sea remains closed to the Nuu-chah-nulth because the government is still fighting them in court. Mr. Trudeau might want to ask his justice and fisheries ministers why this case is still being pursued.

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