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British Columbia Fisheries regime infringes native rights, B.C. court rules

Members of the Nuu-chah-nulth Nations celebrate a court victory in Vancouver.

lyle stafford The Globe and Mail

A B.C. Supreme Court justice has given the federal government and the Nuu-chah-nulth First Nation of Vancouver Island two years to come up a solution after finding that the current fisheries regime infringed on the natives' aboriginal rights.

Madam Justice Nicole Garson said the "cumulative effect" of the status quo is that the ability of the Nuu-chah-nulth to fish has been restricted.

In a 307-page ruling released Tuesday, Judge Garson wrote: "I am confident in the ability of Canada and the plaintiffs to engage in constructive consultations and to ultimately arrive at a resolution.

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"My conclusions are that Canada [presented]evidence to justify the entirety of its fisheries regime but not to justify its failure to permit the Nuu-chah-nulth to exercise their aboriginal fishing rights."

She said the parties are welcome to return to court to tender further evidence if they cannot reach an agreement.

Five Nuu-chah-nulth nations representing about half of the 8,000 Vancouver Island members of the first nation were plaintiffs in the lawsuit against the government of Canada.

The ruling was embraced by the Nuu-chah-nulth, who suggested they are open to talks on the way to a fishing regime that will bring badly needed economic opportunity.

"We have very high unemployment rates in our community and that's unacceptable in a First World country and we're going to turn the tide," Cliff Atleo, president of the Nuu-chah-nulth Tribal Council, told a news conference.

"There is, without a doubt, still a lot of work to be done and we're prepared for that," he said.

Lawyer Matthew Kirchner, acting for the Nuu-chah-nulth, said it was far too soon to be specific about possible positive economic fallout from the ruling.

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"It certainly has the possibility of being an economic opportunity and an opportunity for them to revive and maintain their culture as fishing people," he said. "It's way too early to assess what the economic impact will be."

He said many Nuu-chah-nulth want to be involved in the fishery, but have fallen out of the industry.

"What this judgment does is give them an opportunity to get into the fishery on their terms in their communities at a level that works for them," he said.

Michael Doherty, lead counsel for the federal government in the case, said it was far too early to say whether there will be an appeal of the ruling.

"It's a 300-page decision. We've only had it for a few hours," he said.

Phil Eidsvik, spokesman for the BC Fisheries Survival Coalition that represents commercial fishermen opposed to a "race-based" commercial fishery, said he was "disappointed, but not alarmed."

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He said he expected the ruling would be appealed, and that it does not affect the ability of the federal Department of Fisheries and Oceans to manage the fishery, nor create a separate fishery.

Any enactment of the ruling, he said, would hinge on easing the Nuu-chah-nulth into the public fishery, which was fine with his group's members. "It can be done with little controversy," he said.

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