by Debora Steel
Ha-Shilth-Sa Reporter
July 19, 2007
Vancouver - The 14 nations of the Nuu-chah-nulth Tribal Council provided notice June 27 of their intention to appeal the decision of the Federal Court in the judicial review of the Groundfish Integration Pilot Plan.
On May 29, Justice J. Blais found against the Nuu-chah-nulth Nations in their assertion that the minister of the department of Fisheries and Oceans (DFO) breached his constitutional duty to consult the Nuu-chah-nulth before he made the decision to implement the three-year plan.
The groundfish plan was largely the design of the commercial fishing industry, and was developed over the course of two years.
The plan implemented new individual transferable quotas (ITQs) for rockfish, lingcod and dogfish to commercial license holders, among other initiatives.
Officials from DFO began a consultation process with the Nuu-chah-nulth a few months before the minister announced that the plan would be implemented. That consultation process had only reached stage three of a six-stage protocol at the time of the minister's announcement, and was never completed.
The Nuu-chah-nulth nations began a court action against the DFO minister in May 2006. They based the litigation on a Supreme Court decision known as Haida. That court said there is a duty to consult and accommodate the interests of Aboriginal people when the Crown takes, or proposes to take, action that may affect the asserted Aboriginal rights of Aboriginal people.
The Nuu-chah-nulth submitted to the federal court that the implementation of the ITQs would have an impact on their right to the food, social and ceremonial fishery, and that the ITQs would have an impact on Canada's ability to provide adequately for a fishery in treaty negotiations, making the buyback of commercial licenses more expensive.
In his decision, Justice Blais rejected the Nuu-chah-nulth assertion that consultation should have begun earlier in the process of developing the groundfish plan when changes could have been made to the proposal to address Nuu-chah-nulth concerns. He said the duty to consult fell on the lower end of the scale and that the minister was under no obligation to hold bilateral consultations with the Nuu-chah-nulth nations.
The grounds for the
Nu-chah-nulth appeal are:
1. that the court erred in law finding that neither impacts upon food,
social or ceremonial rights to fish, nor impacts on the resolution of
treaty negotiations and/or aboriginal rights and title litigation trigger
the minister's duty to consult;
2. that the court erred in fact and law in finding that the scope of the minister's duty to consult lies at the low end of the spectrum, and
3. that the court erred in fact and law in determining that the minister met the duty to consult with the Nuu-chah-nulth nations.
Nuu-chah-nulth Tribal Council President Francis Frank said the decision to appeal was not solely based on the legal implications of Justice Blais' decision in the federal court.
"The ruling is not consistent with the collaborative relationship building we've been forging with the department of Fisheries," said Frank.
"We are appealing because the ruling is not conducive with the positive steps we are both taking to work together. The ruling is a step backward for both DFO and Nuu-chah-nulth, and will hinder relationships with all First Nations if it stands."
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