In Ahousaht Indian Band v. Canada (Attorney General), the British Columbia Court of Appeal overturned a lower court’s (B.C. Supreme Court) decision which had held that Aboriginals’ right to fish and sell fish extended to “all species of fish within the environs of their territories.” This included “geoducks,” or clams harvested from the ocean floor and which are the largest in British Columbia. But the B.C. Supreme Court saw it differently.
The body of the geoduck clam lives deep in sand, while the neck protrudes out. They are found from extreme low tide to water depths of 300 feet, though more commonly at 30 to 60 feet. They can live up to 160 years. The commercial fishery of the geoducks grew out of the experience of American Navy divers recovering torpedoes who used high pressure water jets to wash them from the ocean floor, and the geoducks along with them.
Here’s Justice Hall’s summation.
69 As can be seen from this narrative, because the commercial geoduck fishery is what I would describe as a high tech fishery of very recent origin, there can be no viable suggestion that the ancestors of the respondents could have participated in the commercial harvesting and trading of this particular marine resource at some time before contact with explorers and traders late in the 18th century. There is simply no adequate basis in the evidence to support an ancestral practice that would translate into any modern right to participate in harvesting and selling this marine food resource. In my respectful view, having regard to the state of the evidence, the learned trial judge erred in her finding that the evidence demonstrated that the respondents’ Aboriginal rights should be found to extend to the geoduck fishery.
Turtle Talk 