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High court dismisses government appeal of First Nations fisheries

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VANCOUVER - The federal government has lost its bid to overturn a British Columbia court decision that recognized First Nations' rights to a commercial fishery.

The Supreme Court of Canada dismissed Ottawa's application on Thursday for leave to appeal the lower court decisions, bringing an end a long legal fight with five of the Nuu-chah-nulth nations of Vancouver Island.

"The decision is an overwhelming victory for the Nuu-chah-nulth Nation, who have spent more than a decade fighting the case," said Deb Foxcroft, President of the tribal council.

"The Nuu-cha-nulth people have always been involved in commercial fishery but they've been pushed out of this fishery because of the government's policies and regulations."

The five bands — the Ahousaht, Ehattesaht/Chinekint, Hesquiaht, Mowachaht/ Muchalaht, and Tla-o-qui-aht — said fisheries formed the backbone of their trading economy long before the arrival of Europeans.

They argued, successfully, that translates into a right to conduct a modern commercial fishery for fish and shellfish, and not just a subsistence food fishery.

The federal government challenged the claim. The B.C. government, B.C. Wildlife Federation, B.C. Seafood Alliance and the Underwater Harvesters Research Society were interveners in the case.

An official at Fisheries Minister Gail Shea's office declined a request for an interview with the minister, saying DFO is currently reviewing the decision.

While the original 909-page B.C. Supreme Court ruling in November 2009 recognized the bands' right to fish and sell fish within their territories, it was not an unrestricted commercial right. The Nuu-chah-nulth will have to negotiate the terms of their commercial fishery with the federal government, which has jurisdiction for fisheries management.

Foxcroft said the Nuu-chah-nulth have attempted negotiations since the original court decision, to no avail.

"We call upon Canada to seize this opportunity to implement our Nuu-chah-nulth fishing rights," she said.

Shawn A-in-chut Atleo, the national chief of the Assembly of First Nations and a member of the Ahousaht First Nation, said the high court's decision means Ottawa has no more legal recourse and must negotiate.

"It's been an 11-year court battle and we're feeling elated that the highest court in the land has upheld and affirmed our rights," Atleo said in an interview.

"Now it's time for the Department of Fisheries and Oceans and Canada to meaningfully come to the table and implement this decision with Nuu-chah-nulth as full partners."

As the lead plaintiff in the case for his community, Atleo said the federal government should not be fighting First Nations on these rights.

Atleo said the end of the legal odyssey has implications for First Nations across the country, and not just for fish.

This is the latest of 190 court cases that First Nations have won concerning their aboriginal rights and title to natural resources, Atleo said.

The federal government should not be spending millions of dollars fighting First Nations, he added.

"It underscores a fundamental need to transform the relationship with Canada. Canada stands on a legal foundation of denial in recognizing and implementing title rights and treaty rights," Atleo said.

"It's really, truly time to transform the full relationship between First Nations and Canada and for Canada to not be fearful that the recognition of rights is going to somehow take away from others. In fact, shared prosperity can be won for everybody."

Note to readers: This is a corrected story. An earlier version said the decision was announced Wednesday.

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