B.C. First Nation launches first ever case to extend Aboriginal title to ocean

A First Nation embroiled in a fight against salmon farms in the Broughton Archipelago is taking the battle to a new level by filing a claim of Aboriginal title in B.C. Supreme Court.

The Dzawada’enuxw First Nation, whose main reserve is Kingcome Inlet, is claiming that tenures granted by the province to several companies are not authorized because they are in Aboriginal title areas.

The claim affects 10 fish farms, most of which have licences that expire next month, meaning the province must make a decision whether to renew those licences in the face of the title claim and sustained protests by First Nations. The claims also affect some forest tenures, but they are largely inactive.

The title claim is unique as it includes water as well as land, said lawyer Jack Woodward, who is representing the First Nation.

“This would be the first case to extend the claim of Aboriginal title to the shoreline of the ocean,” Woodward told The Narwhal.

“It may seem surprising that a land claim would extend into water areas, but it is not a surprising concept under the legal system because even the provincial government extends its Land Act into water areas. These very licences are issued pursuant to the Land Act,” he said.

The case could take years to get through the court system, but it will inevitably put pressure on the provincial government and Woodward said other interim measures are likely if the licences are renewed.

“It is likely that there will be some sort of preliminary procedure, whether an injunction or a judicial review of the procedure. It will depend how the decision is made. It is likely the case will form a platform or foundation for pre-trial proceedings,” he said.

The decision to claim Aboriginal title was made after community meetings, followed by a unanimous vote, community member Lindsey Willie told The Narwhal.

There is mounting evidence that the presence of fish farms adversely affects shrinking wild salmon runs, and a collective of First Nations has actively protested against Marine Harvest and Cermaq since last year.

“This is the biggest move we can make. The land was taken from us and it has always been our goal to own our land. Once we do own it, through the title claim, we will be able to have the fish farms removed,” said Willie, who is optimistic the court will rule in favour of the First Nation.

One reason for that optimism is that Woodward is leading the case, Willie said.

Woodward represented B.C.’s Tsilhqot’in Nation in a historic case that resulted in a Supreme Court of Canada ruling in 2014 that the Tsilhqot’in hold title to about 1,900 square kilometres of their traditional territory.

The ruling, which ended a 25-year legal fight, was the first time an Aboriginal group in Canada had won a title claim, and has resulted in a dramatic shift in the legal landscape.

The Haida, Cowichan Tribes and Nuchatlaht First Nation are among title cases that are now wending their way through the courts.

When Aboriginal title is recognized, the province loses jurisdiction and the Tsilhqot’in decision made it clear that First Nations consent is then required for resource development.

Forests, Lands and Natural Resource Operations Minister Doug Donaldson was not available for comment Monday, but a ministry spokeswoman said the province is engaged in government-to-government conversations with five bands and six First Nations in the Broughton Archipelago.

“It is too early in the process to presuppose the outcomes of those discussions,” she said.

Donaldson previously offered hope to those protesting against salmon farms in areas such as the Broughton Archipelago, where young wild salmon swim past the pens, by saying the government is “very interested “ in moving salmon farms to land-based operations — something salmon farmers claim is not practical.

In 2013 the ‘Namgis First Nation started B.C.’s first land-based Atlantic salmon farm in Port McNeill. The operation, called Kuterra, began selling land-farmed salmon to market in 2014. Since then, however, little other investment in land-based aquaculture in B.C. has taken place despite rapid growth in the U.S.

Members of the the Dzawada’enuxw First Nation believe change needs to come quickly if wild salmon are to be saved.

Hereditary Chief Joe Willie said the fish farming industry infringes on the First Nation’s way of life by breaking the natural circle of life that has sustained the community since time immemorial.

“This cannot continue,” he said.

Dzawada’enuxw Chief Willie Moon emphasized that the ancestral lands have never been ceded and the Dzawada’enuxw people have lived in the territory since time immemorial.

“Our identity comes from these lands and waters,” he said.

And Woodward is as optimistic as the band members that, eventually, the title case will be won.

“There’s no doubt that we will win, but it does take time,” he said.