Court upholds B.C. native fishing rights

The B.C. Court of Appeal has upheld the right of aboriginal groups to take part in the commercial fishery and sell what they catch, except for a specialized commercial clam fishery.

The case involves a group of bands on the West Coast of Vancouver Island collectively known as the Nuu-chah-nulth, who argued they had a right to harvest and sell fish based on the practices of their ancestors.

The federal government claimed there was no evidence of a commercial fish trade by the First Nations' ancestors.

However, a B.C Supreme Court judge ruled that expert testimony and historic records showed the bands had a right to fish within their territories and to sell the fish.

The federal government appealed that ruling but in a decision released Wednesday, the appeal court rejected the appeal, except for the geoduck clam fishery.

High-tech fishery

The court said because that fishery is a high-tech venture that has only been operational for about 35 years, the First Nations ancestors could not have taken part in such a commercial enterprise.

According to an affidavit provided during the trial by the Fisheries Department, the geoduck commercial fishery requires divers to wear specialized gear as they extract geoducks, which live about a metre below the ocean floor.

"There is simply no adequate basis in the evidence to support an ancestral practice that would translate into any modern right to participate in harvesting and selling this marine food resource," said B.C. Appeal Court Justice John Hall.

He said that the trial judge, in her original ruling in November 2009,  "erred in her finding that the evidence demonstrated that the respondents' aboriginal right should be found to extend to the geoduck fishery."

The appeal court also agreed with the trial judge that the modern equivalent of fishing for sustenance includes necessities such as food, clothing and housing but not the accumulation of wealth.