In November, a few months back, a very significant legal decision came out of the Supreme Court of British Columbia. The case was labeled: .
Or, the Nuu-chah-nulth Nation (comprised of The Ahousaht, Ehattesaht, Hesquiaht, Hupacasath, Mowachaht/Muchalaht, Nuchatlaht, Tla-o-qui-aht, and Tseshaht Indian Bands and Nations all from the west coast of Vancouver Island) against the Government of Canada.
The core of the case centered on the Nuu-chah-nulth claim to an aboriginal right to fish on a commercial basis. As stated by the Honorable Madam Justice Garson in her analysis:
They assert that at the time of contact with Europeans, their ancestral communities fished and traded fish and these activities were intrinsic aspects of their culture. They contend that those fishing and trading activities found their modern-day aboriginal rights to fish commercially, and that Canada’s fisheries regime unjustifiably infringes those rights. They claim that they are largely excluded from the WCVI [West Coast Vancouver Island] commercial fishery. The plaintiffs do not seek rights to fish free from government regulation, but say such regulation must recognize their aboriginal rights, which at the moment it fails to do.
Presently, in Canada, federal Fisheries policy limits First Nations to fishing for “food, ceremonial and social purposes”. The apparent priorities of Fisheries policy in Canada are guided by: conservation first, then First Nation food fisheries, then commercial and sport fisheries.
As the Nuu-chah-nulth successfully pointed out — current Fisheries policies do not account for the reality that Nuu-chah-nulth communities historically utilized fisheries resources for far more than just food and ceremonial purposes — prior to European contact.
For someone that grew up on the coast — this is a bit of a no brainer. However, apparently for folks in Ottawa this is a little more difficult to grasp.
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When it comes to the Olympics, or tourism, or other issues, the federal government will wave their aboriginal flag worse than Gordon Campbell waving a Canadian flag at the closing ceremonies — whacking Ms. Harper in the face repeatedly.
A press release from Indian and Northern Affairs Canada in early December: . The Feds made a $2.9 million dollar contribution for the Aboriginal Pavilion. Gary Lunn, Minister of State for Sport suggested:
“The 2010 Aboriginal Pavilion will be an incredible chance for Canadian and international visitors to experience and celebrate the cultural richness of Aboriginal
The press release from Indian and Northern Affairs Canada ends suggesting:
Indian and Northern Affairs Canada is working to ensure that Canada’s investment leaves a legacy of economic and social benefits for all Aboriginal peoples.
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If you are not familiar with the history of court cases surrounding aboriginal rights and title in Canada — the record for Canada is rather poor. Yet, Canada continues to have one policy, and one policy only to any legal challenges by First Nations asserting aboriginal rights and title.
DENY!
Aboriginal rights and title are built fundamentally on the fact that aboriginal societies existed in Canada prior to European colonization. This was recognized in some of the earliest laws guiding establishment of Canada as a country – for example the Royal Proclamation of 1763 which suggested that First Nation people and societies needed to be respected.
The general policies, laws, and governance that have evolved since then are built upon the assertion of “denial”.
For First Nations, many of which have been fighting for rights and recognition for over a century, the burden of proof lies with the Nations. Once a Nation enters legal proceedings and the Canadian legal system — proving aboriginal rights and title rests with the Nations raising the case.
Added to the challenges, courts depend on evidence for that burden of proof. When it comes to aboriginal rights and title we’re talking about very old evidence — and in many cases oral history, as opposed to written history (although both come into play).
And, thus, the federal and provincial government practice of: deny, deny, deny.
And why not — governments don’t hold the burden of proof. Well… not until it gets to the point where aboriginal rights and title have been proven (becoming more frequent) and then the government has the burden of proof to prove that any infringement of those aboriginal rights was “justified”.
This gets into trickier, stickier, grayer areas.
And, do denial first.
So, not only did “Canada” deny that the Nuu-chah-nulth had any aboriginal rights, they denied any commercial rights:
[2] Canada denies that the plaintiffs possess an aboriginal right to trade or to sell fish. In the alternative, Canada denies that its legislation infringes any aboriginal rights that the plaintiffs do possess…
First order of business: try to deny that the communities mounting the legal challenge were actually the descendants of the Nations they represent:
[15] Canada responds that the plaintiffs have failed to establish that they are the successor collectives to the aboriginal groups that historically possessed aboriginal rights and title. For this reason alone, their claims must fail.
[16] Canada further submits that none of the plaintiffs have established that they possess aboriginal rights to harvest, for any of the reasons they assert, all species of fisheries resources in their respective territories. They have also failed to establish aboriginal rights to sell any species of fisheries resources harvested in their respective territories, whether on a commercial scale, for the purposes of sustaining their communities, or in exchange for money or other goods.
Canada contends that these rights cannot be proven because no such practices existed at the time of contact; alternatively, any such practices were not integral to the distinctive cultures of the plaintiffs; or, in the further alternative, there is no continuity between the pre-contact fishing practices of the aboriginal peoples of the WCVI and the modern activities alleged to be the modern iteration of those practices.
Canada denies that fishing practices existed at contact?? So, what the heck were folks comprising the Nuu-chah-nulth Nations eating?
Rocks off the beach? Come on.
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Another press release from the Federal Government in early December 2009:
In the new Federal Framework for Aboriginal Economic Development, the Government of Canada committed to increasing economic opportunities for First Nations by, among other things, modernizing land management regimes and enhancing the value of Aboriginal assets by addressing legislative and regulatory barriers that hinder economic development.
From the court case:
[198] It is Canada’s contention that an examination of these other aspects of the Nuu-chah-nulth way of life provides evidence of a society that did not trade in fish… Canada submits that trade in marine resources was not an integral feature of Nuu-chah-nulth culture.
[242] The plaintiffs contend that the evidence demonstrates that their ancestors traded in fish and that that trade in fish was integral to their culture. Canada contends that, at most, the evidence supports a finding of occasional, opportunistic trade in fish. It argues that any exchange of fish or marine products was largely within a context of kinship, gifts, or tribute to a chief, and therefore cannot be construed as trade. It further argues that any trade was the product of European influence.
So apparently, the thousands upon thousands of aboriginal people living on the coast of BC just lazed around eating rocks off the beach and didn’t trade or have commerce of any kind until European ships started moving along the coast.
Thankfully, Madame Justice Garson did not adopted such a narrow view:
[282] I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources. I conclude that that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections.
[791] I conclude that the plaintiffs have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally.
Things are changing… again. Unfortunately, as with so many aboriginal rights and title cases prior to this — the courts are not interested in dictating remedies to these cases. Madame Justice has sent the Nuu-chah-nulth and federal government back to the negotiating table with a two year timeline.
In some views, it’s sort of like finding a bully guilty of dishonorable acts — but, hey, we’ll give you two years to clean up your Acts.
Meaning, legislate your way out of this. That’s how the Province of BC dealt with aboriginal consultation issues after it got slapped in the courts a few years. It just changed the laws…
Fairly, though, it is very complex as the federal government has been busy since about 1867 layering legislation on laws on legislation ensuring that settlers, canneries, and commercial fisherfolks can access natural resources.
Kind of hard to know what you stand for when the governing regime changes every few years… and the choices between potential governing regimes are so busy throwing sand from the Parliamentary sandbox in each others underwear.
The disturbing part for me — is constantly reading “Canada” says this, “Canada” asserts this… I’m wondering where “Canada” got this mandate of denial from. This means that all of the Olympic fervor generated over athletes standing on podium and competing for country — also stands for marginalizing communities that are the fundamental core to the country (plus the fastest growing segment of Canada’s population – by far).
How do you defined two-faced?