Litigation
NCN
fisheries litigation trial
Litigation trial updates
How the case began
Timeline for the case
Importance of the case
Litigation Documents
Nations Seek Reconciliation: The Nuu-chah-nulth Fisheries Litigation
The case is about the rights of the Nuu-chah-nulth Nations to fish and to sustain their communities by fishing. We are claiming that the Nuu-chah-nulth have a constitutionally-protected right to fish commercially. The claim is based on Nuu-chah-nulth ownership of traditional territories and culture of fishing and trading in fish.
To prove the case, we
have to meet legal tests that require substantial evidence relating to Nuu-chah-nulth
culture and events in the eighteenth and nineteenth century.
In an effort to meet the tests, we will call witnesses from the Nuu-chah-nulth
Nations who have knowledge of traditional practices
and territory or who have a long involvement in the fishing industry.
We will also rely on expert witnesses who have studied the history of the
Nuu-chah-nulth Nations and British Columbia more broadly. There will also
be a lot of documentary evidence spanning the whole period from when Europeans
arrived on the coast to the present day.
In addition to establishing the
fishing practices and ownership of territory by the Nuu-chah-nulth, we intend
to show how the governments of B.C. and Canada have consistently failed to
recognize or accommodate the right of the Nuu-chah-nulth to fish commercially.
litigation
trial updates
June 2008: After five months of testimony, witnesses presenting on behalf of Nuu-chah-nulth Nations conclude their evidence in the case against Canada and British Columbia. In the next portion of the trial, Canada will enter evidence through witnesses and the Plaintiffs will conduct cross-examinations. The trial is scheduled to continue until late in 2008.
May 16-June 4, 2008: Plaintiffs call their final witnesses, including Simon John, Troy John and Victoria Wells (Ehattesaht), John Frank (Ahousaht), and Chuck McCarthy (Ucluelet), and Barney Williams Jr. (Tla-o-qui-aht)
April 21-May 16, 2008: Allen Wood continues his testimony. Following Mr. Wood, Christine Jules of Ka:’yu:k’t’h’/Che:k’tles7et’h describes the importance of fishing to her community and its decline. On April 29, Uu-a-thluk Program Manager, Dr. Don Hall begins his testimony, giving evidence of Nuu-chah-nulth attempts to increase access to economic fisheries and describing the inadequacy of commercial fishing opportunities provided to the Nuu-chah-nulth through existing or past DFO programs. He provides examples of how requests to change licensing and quota rules to allow for community-based fisheries with greater Nuu-chah-nulth participation ranged from licence splitting for the salmon fishery to trap-sharing for crabs. Dr. Hall uses the Makah Nation and their economic access as an example of how fisheries can be conducted to increase the benefit to community members.
March 14-April 11, 2008: Three witnesses testify during this period: Anthropologist Richard Inglis talks about Nuu-chah-nulth society, settlements, and economy, and provides an overview of Nuu-chah-nulth fisheries from 1871-1930s; Allen Wood, formerly of the Department of Fisheries and Oceans, describes the management factors that led to the decline of Nuu-chah-nulth involvement in fisheries since 1960; and Alex Short of Ka:’yu:k’t’h’/Che:k’tles7et’h talks about his Nation’s once extensive involvement in fishing in contrast to the present day.
February 27-March 14, 2008: Lillian Howard completes her earlier testimony. Other Nuu-chah-nulth-aht also present evidence about fisheries resources within Nuu-chah-nulth territory and about individual and community attempts to stay involved in commercial fishing. Witnesses include Ray Williams and Edwin Jack (Mowachaht/Muchalaht), Simon Lucas (Hesquiaht), and Benson Nookemis (Huu-ay-aht).
February 25-27, 2008: Dr. Daniel Boxberger presents. Head of the anthropology department and a professor of anthropology at the University of Western Washington, Dr. Boxberger’s testimony integrates available evidence within a theoretical framework, demonstrating the existence and importance of economic trade in fisheries resources to Nuu-chah-nulth society.
February 12, 2008: Over 150 people representing 40 Nations and Tribes rally at the Vancouver Law Courts in support of Nuu-chah-nulth Nations. Hosted by Nuu-chah-nulth Nations and B.C. Regional Chief for the Assembly of First Nations, A-in-chut (Shawn Atleo), the rally includes words of support from Chief Doug Kelly, Sto:lo Chief and Chair of B.C. First Nations Fisheries Council; Grand Chief Stewart Phillip and Chief Robert Shintah from the Union of B.C. Indian Chiefs; Chief Roger William from the Tsilhqot’in Nation; and Tom Happynook, President of the Nuu-chah-nulth Tribal Council.
February 4, 2008: Eight Nations resume the trial to have their rights and title to sea resources recognized, respected, and implemented. The remaining three Nations will proceed in a separate phase of trial.
October, 2007: The Nuu-chah-nulth Fisheries Litigation is moving ahead with a two-phase approach and a new time frame. For more information about these developments, click here.
Summer 2006: Preparation for the second stage of the trial continues. Canada and B.C. have requested examinations for discovery of several Nuu-chah-nulth First Nation representative plaintiffs starting in August.
May 19, 2006: The first phase of the Nuu-chah-nulth Fisheries litigation adjourns after hearing final testimony from Robert Dennis. Dennis informs the trial about the Huu-ay-aht history he learned from his elders and his own experiences growing up in a fishing family. Dennis also explains the territories and relationship between Huu-ay-aht Ha’wiih (Hereditary Chiefs).
May 15 – 18, 2006: Dr. Lane completes her testimony. Robert Dennis, Chief Councillor of Huu-ay-aht First Nation, begins his presentation of evidence.
May 8 – 12, 2006: The Fisheries Litigation resumes at the Vancouver Law Courts. Dr. Barbara Lane testifies.
May 1 – 2, 2006: The B.C. Supreme Court moves to Nuu-chah-nulth territory in Ahousaht for two days of trial. Ahousaht Ha’wiih welcome the visitors to their Ha-houlthee (Chiefly territories) in an opening address before the trial begins. Acting as a courtroom, the school gym hears testimony from A-in-chut (Ahousaht Ha’wilth Shawn Atleo) and Ahousaht elder Stanley Sam. The entire Ahousaht community shows that Nuu-chah-nulth are always good hosts, feeding and taking care of over 100 people, and transporting about 50 people back and forth from Tofino each day.
April 24 – 28, 2006: The trial begins April 24th with gathering on the Courthouse steps. Over 120 Nuu-chah-nulth, First Nation leaders, and supporters demonstrate their support for the Nuu-chah-nulth Fisheries Litigation. In this first week, NTC President Francis Frank and Che:k:tles7et’h’/Tla-o-qui-aht elder Barney Williams Sr. appear as witnesses. Dr. Barbara Lane also qualifies as an expert witness.
how the case began
Since the early 1990s,
the Nuu-chah-nulth Nations have participated in the B.C. treaty process, attempting
to negotiate a treaty with Canada and B.C. Throughout that process, the two
governments have refused to consider any fair terms regarding fishing rights
or allocation. The offers made thus far would mean a further loss of the fishing
culture and economy of the Nuu-chah-nulth.
For that reason, while many Nuu-chah-nulth Nations continue in the treaty
process, the chiefs of 11 NCN Nations, with the support of their communities,
decided to bring the legal action to have their entitlement to fish determined
by a court.
A major goal of the case is to put the Nuu-chah-nulth in a better negotiating
position when dealing with the government on fisheries matters.
timeline
for the case
A writ was filed to begin
the legal action on June 17, 2003. The writ names the Nuu-chah-nulth Nations
and bands as plaintiffs*. Canada and British Columbia are named as defendants.
In December, 2003, we filed a Statement of Claim, setting out each of the
Nuu-chah-nulth Nations’ legal claims. Very soon after, Canada delivered
an onerous demand for particulars, asking for extensive details of every aspect
of the claims. We delivered a response to the demand for particulars in June,
2004. In April, 2005, Canada filed its statement of defence. B.C. did not
file a statement of defence until December of that year.
While we have been anxious to have the Nuu-chah-nulth claims heard by the court, Canada and B.C. have been reluctant to move forward in the proceedings. After they refused to agree on a trial date, we asked the court to set one. March, 2006 was set, but, the defendants were not happy with the date and indicated that they would apply to have the trial adjourned on the basis that they could not be ready in time. Eventually, an agreement was worked out whereby a month of trial would be held starting in April 2006, then the case would be adjourned for about one year. The case resumed in February of 2008 and Nuu-chah-nulth witnesses concluded their testimony in June of the same year.
importance
of the case
The duties and rights
involved in the case have significant implications not only for the Nuu-chah-nulth
Nations, but also for other First Nations and for the government. For
this reason, Canada and B.C. have vigorously defended the proceedings
and we can expect them to continue to do so.
Due to the breadth of evidence required under the law and the complexity
of the proceedings, this case has taken several years to prepare and will
be in court for many months. As is clear, the case requires a significant
commitment by the participating Nuu-chah-nulth Nations. The ongoing participation
and support of people in the communities, the NTC, and everyone working
on the case emphasizes all the more how important it is to achieve our
goal of recognition of the right of the Nuu-chah-nulth to participate
in and build prosperous fisheries on the West Coast of Vancouver Island.
litigation documents
The following documents relating to the litigation process are available here for download and reading:
June 2008: Nuu-chah-nulth Nations Conclude Presentation of Case (pdf)
Feb. 2008: Uu-a-thluk HSS litigation final (pdf)
Feb. 2008: Invite to Nuu-chah-nulth Litigation rally, Feb 12th (pdf)
Jan. 2008: Litigation PR (Word)
