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On April 19, 2018 the Honourable Madam Justice Humphries (“Humphries J.”) of the British Columbia Supreme Court (“BCSC”) released her decision in Ahousaht Indian Band and Nation v Canada (Attorney General), 2018 BCSC 633, ruling that the Ehattesaht, Mowachaht/Muchalaht, Hesquiaht, Ahousaht and Tla-o-qui-aht’s (the “Plaintiffs”) declared right to fish within their fishing territories and to sell that fish was unjustifiably infringed by Canada in certain circumstances, and that other asserted infringements of the Plaintiffs’ right were either justified or did not amount to an infringement.

I.                    FACTS AND PROCEDURAL HISTORY

This trial was the second stage of a bifurcation of the proceedings in this case. The first stage was heard by the Honourable Madam Justice Garson (“Garson J.”). Following a lengthy trial that took place in the BCSC over 120 days, Garson J. issued the following declarations and orders:

1. the Plaintiffs have Aboriginal rights to fish for any species of fish within their fishing territories and to sell that fish;

2. the seaward boundary for each fishing territory is nine miles from a line drawn from headland to headland within each of the Plaintiffs’ fishing territories

3. the Fisheries Act, RSC 1985, c F-14 prima facie infringes the Plaintiffs’ Aboriginal rights to fish and to sell fish; and

4. Canada has a duty to consult and negotiate with the Plaintiffs in respect of the manner in which their Aboriginal rights can be accommodated and exercised without jeopardizing Canada’s legislative objectives and societal interests in regulating the fishery.

Garson J. also ordered that if Canada and the Plaintiffs were unable to reconcile their interests through consultation and accommodation within two years, either party could apply to the court for a determination of whether the prima facie infringement of the Plaintiffs’ declared rights was justified.

In the interim between Garson J.’s decision and the decision in this case, there were numerous trips to the SCC in response to Garson J.’s decision and the SCC’s decision in Lax Kw’alaams Indian Band v. Canada (Attorney General) 2011 SCC 56 (“Lax Kw’alaams”).  During this time, Garson J. was appointed to the Court of Appeal so another BCSC judge heard and decided the justification trial.

In accordance with Garson J.’s declarations, Canada and the Plaintiffs engaged in multiple meetings and discussions which were not successful in reconciling their respective interests. The Plaintiffs found the accommodations offered by Canada insufficient, asserted that no meaningful consultations had taken place and that Canada had done nothing to implement a right-based multi-species fishery. As a result, the Plaintiffs reactivated their litigation in 2012 seeking rulings that certain specific infringements of their fishing rights, including the Department of Fisheries and Oceans (“DFO”) failure to adopt their proposed fishing plans, were unjustified.

II.                  THE DECISION

Before turning to her decisions on the primary issues before her regarding Canada’s justifications of infringements on the Plaintiffs’ commercial fishing right, Humphries J. found that while the negotiations with the Plaintiffs were frustrated by a number of factors, including the inability of DFO’s representatives to obtain mandates, and the changing requests of the First Nations regarding the exercise of the right, there had been a number of accommodations Canada had made since Garson J.’s original decision, including:

  • funding the negotiations;
  • providing funding to build capacity in the Plaintiffs’ fleet and to allow the Plaintiffs to develop and propose fishing plans;
  • providing funding to the Plaintiffs for fisheries staff and training;
  • providing the Plaintiffs with 122 licences under the Allocation Transfer Program and Pacific Integrated Commercial Fishing Initiative (“PICFI”); and
  • providing the Plaintiffs with thousands of pounds of quota of multiple species at no cost.

1) The Plaintiffs Commercial Fishing Right

The Plaintiffs took the position that Garson J.’s order reflected the right, and that because the right was upheld in the BC Court of Appeal and the Supreme Court of Canada, (except for geoduck) it could not be reduced or diminished.   Canada on the other hand argued that the right was subject to significant interpretation and that it was open to the court to reword, qualify and re-delineate the right during the justification hearing. Humphries J. agreed with Canada and found that the broad right declared by Garson J. required further “delineation” (citing Lax Kw’alaams), in order to consider whether certain regulations or DFO policies were infringements, and if so whether those infringements could be justified.

As a result, Humphries J. took Garson’s purposive right (the right to fish and the right to sell that fish) and re-characterized the right as a right to “a small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-[nautical] mile strip from shore, using small, low-cost boats with limited technology and restricted catching power and aimed at wide community participation.” She also found that:

  • the right is multi-species; therefore it is the totality of the fishery that is relevant, not one particular allocation of a species;
  • the right is not unrestricted;
  • the right is not exclusive;
  • the right is not to an industrial fishery;
  • the right is not to accumulate wealth; and
  • the right does not provide a guaranteed level of income, prosperity, or economic viability.

2) Infringement and Justification

Specificity and Continuity

Humphries J. found that the continuity between the ancestral practice and the modern claimed right was relevant to the issue of justification. Humphries J. decided to use continuity throughout her accommodation, justification and reconciliation analysis. She did so by connecting the exercise of the ancestral right directly to justifiable limits on the modern right.  For example, in her view, the Plaintiffs’ ancestral trading practices are relevant in the consideration of whether infringements on the Plaintiffs’ right in a modern context can be justified. As a result factors such as the importance of the species at the time of contact (e.g. chinook and coho very important, and sablefish not so important) were used to inform whether the Crown could justify infringements today.

Justification

Throughout negotiations with Canada, and in response to Garson J.’s decision, the Plaintiffs prepared and put forward to DFO multiple fishing plans which they said demonstrated an appropriate accommodation of the exercise of their right in a modern context. The Plaintiffs relied upon these plans for the justification analysis and asserted that Canada should have to justify rejecting them. The preparation and presentation of these plans were in direct response to Garson J.’s suggestion in her judgment that the Plaintiffs should present plans to Canada, and if there was no agreement, Canada would have to justify not accepting those plans.

Humphries J. rejected this approach finding that it would inappropriately import the negotiation process into the litigation. Rather, she adopted Canada’s position that only specific infringements resulting from Canada’s management approach needed to be justified.

Priority

Speaking generally on the issue of priority, Humphries J. found that the principle of priority varies depending on the many factors that go into each individual fishery. In her view, setting priority for a commercial fishery is a complex exercise and it does not mean that the Plaintiffs are entitled to get everything (such as allocations, timing, openings and competitive market advantage) first for every fishery. As well, Humphries J. agreed with Canada that according preferences to the Plaintiffs as to time and area is not a proper approach to priority and that the overall allocation, considered in the context of Canada’s management of the entire resource is what counts. Factors respecting priority of allocation will change for various species, as will the manner of providing access.

Policies

What follows is a summary of Humphries J.’s findings on infringement and justification as they relate to specific policies:

Salmon Allocation Policy: The Salmon Allocation Policy sets the allocation for chinook and coho for the recreational fishery ahead of the commercial fishery. As Canada treated the Plaintiffs’ fishery as part of the commercial fishery, the Plaintiffs’ fishery allocation was set after the recreational fishery. Canada’s justification for this was that it makes “economic sense”. Humphries J. concluded that according priority to the recreational fishery over the Plaintiffs’ fishery was not justified as Aboriginal commercial rights have priority over recreational fishery and the general commercial fishery.

Mitigation Policy: The Mitigation Policy requires voluntary relinquishment of commercial licences from the regular commercial fleet. Canada purchases these licences and provides them to Aboriginal nations under various programs, including PICFI. Humphries J. did not find that the entire Mitigation Policy infringed upon the Plaintiffs’ right, but did note that in certain circumstances it may act as an unjustified barrier to accommodation – such as if the number of licences available were not enough to appropriately accommodate the right, and Canada chose not to alter the recreational fishery’s allocation.

Coastwide Framework: The Coastwide Framework (“CWF”) sets notional allocations for all First Nations in British Columbia. Canada successfully asserted a claim of public interest immunity over the CWF. Humphries J. found that Canada did not put forward the CWF as justification for not providing allocations to the Plaintiffs and, therefore, the CWF was not subject to an infringement analysis.

Fishery (General) Regulations and Pacific Fishery Regulations: Each of the Fishery (General) Regulations, SOR/95-53 and the Pacific Fishery Regulations, SOR/93-54 were collectively addressed by Humphries J. as prima facie infringements, including:

  • requirement in the commercial fishery for a licence;
  • requirement for species-specific licencing;
  • requirement in the commercial fishery for a registered vessel;
  • costs associated with pursuing a fishery, for instance licences and monitoring costs, particularly electronic monitoring;
  • prohibition against retention and sale of bycatch;
  • restriction on transfer of licences;
  • necessity for one licence per boat per species to harvest and sell fish; and
  • requirement for Individual Transferable Quota (“ITQ”) in the groundfish fishery.

Humphries J. concluded that the regulations setting out the following requirements would be too costly for a small boat multi-species fishery and were not justified for the entire right-based fishery of the Plaintiffs: (1) one commercial licence per vessel; (2) all vessels to be registered; (3) licence fees; (4) a restriction on splitting or transferring licences; (5) one licence per species; and (6) licence allocations that depend on limited entry based on previous catch. Whether the remaining prima facie infringements could be justified were dealt with by Humphries J. on a species-by-species basis as summarized below.

At the end of this case summary is a review of Humphries J.’s findings on infringement and justification as they relate to specific species.

III.                Observations

This trial level decision has mixed results.  Some findings useful.  Some troubling.  The unique procedural history of this case (in particular separate trials on the right and justification heard by different judges) clearly shaped the outcome.

Humphries J. provides some useful clarifications regarding the priority of the Plaintiffs’ commercial right and Aboriginal rights to fish commercially generally. Humphries J. consistently found, despite DFO’s arguments to the contrary, that the recreational fishery does not have priority over the Plaintiffs’ commercial Aboriginal right, even over those species Humphries J. found to be of “low priority” to the Plaintiffs. This clarity will be useful for First Nations in both the FSC and in the recognized commercial right settings.

As well, DFO did not justify the following infringements on the Plaintiffs’ commercial fishing right under the Fishery (General) Regulations and Pacific Fishery Regulations: (1) one commercial licence per vessel; (2) all vessels to be registered; (3) licence fees; (4) a restriction on splitting or transferring licences; (5) one licence per species; and (6) licence allocations that depend on limited entry based on previous catch. As with priority, many of these unjustified infringements have been strenuously resisted by First Nations.

There are however a number of troubling outcomes. One is the way in which Humphries J. dealt with the Plaintiffs’ declared right through first “interpreting” it and then “delineating” it. Humphries J. changed the Plaintiffs’ fishing right “to fish for any species of fish within their fishing territories and to sell that fish” to become a right to “a small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power and aimed at wide community participation”. In doing so Humphries J. erroneously conflated what appears to be the Plaintiffs’ “preferred means” of exercising its declared right in a modern context, (eg small boats) with the right itself and with the scale of the right. This, in result,  is a “frozen rights” approach rejected by the SCC in numerous decisions. A preferred means of fishing does not, and should not determine the purpose or scale of the fishing right.  What is the preferred and best means of harvesting fish today, may not and should not determine or restrict the method of fishing into the future.

In our view a generous purposive approach to defining s. 35(1) fishing rights must be applied by the courts.  Garson J`s ruling on the right did this.  Humphries J. erroneously conflated the work required of the Court during the justification stage with the work done in declaring the s. 35(1) right. Garson J.’s ruling was upheld by the SCC, and so it was not, in our view, within Humphries J.’s jurisdiction to substantively change or re-characterize the right during the justification phase.

Regarding Humphries J.’s conclusion on the “delineation” of the right, her statement that the limits provided for in Lax Kw’alaams are limits on the right itself, not limits on the exercise of the right, are equally troubling. While the exercise of a declared right may be limited by those infringements on the right that can be justified by the Crown, the declared right itself should not be limited. The world, especially the world of fisheries, is not static. An infringement that is currently justifiable may not be at another date as circumstances change. Stocks recover, methods change, priorities and markets change and management objectives shift. To limit the right rather than the exercise of the right is to freeze the right at a certain point in time. This is inconsistent with the jurisprudence on Aboriginal rights.

Humphries J.’s approach to justification – connecting the extent of the ancestral right directly to justifiable limits on the modern claim – is also problematic. Humphries J. characterized the commercial priority for certain species as “low” and others as “high” based on the Plaintiffs’ connection and continuity to that species at the time of contact and subsequent. This is problematic for a number of reasons, including the evolving ecosystems and availability of species. Indigenous people must be able to adapt their fisheries to changing abundance and available species.

Finally the suggestion in Humphries J.’s ruling that commercial and recreational industry groups should be involved in the negotiations related to Aboriginal fishing rights wrongly equates socio economic interests with constitutional obligations.

The Plaintiffs are appealing to the BC Court of Appeal.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.

 

 

Schedule 1

Summary of  Humphries J.’s  Findings on Infringement and Justification
regarding specific species

Salmon

Allocation: Humphries J. found that Canada is justified in rejecting the additional 5,000 piece winter allocation of chinook that was sought by the Plaintiffs because of the logistics of allocating salmon to Canada under the Pacific Salmon Treaty, which starts the chinook year on October 1 and includes all harvests to September 30.

Canada is not justified in basing the Plaintiffs’ allocation of chinook on the Salmon Allocation Policy and the Mitigation Policy. A generous approach must be taken to allocation given the importance of chinook to the Plaintiffs, the lack of evidence of effects on the rest of the commercial fishery if the Mitigation Policy is not adhered to for chinook and the priority the Plaintiffs have over the recreational fishery.

Canada is not justified in giving the recreational fishery priority over the Plaintiffs in the coho fishery, even though the recreational fishery can only retain hatchery coho. However, Canada’s precautionary approach relating to coho is justified given the fragility of coho stocks.

Canada is not justified in giving the recreational fishery priority over the Plaintiffs in chinook and coho terminal fisheries.

Management: Canada’s treatment of terminal fisheries of chinook and coho, which is based on an escapement rate, is justified for conservation reasons. The five-mile corridor set in place until September 15 of each year in the nine-mile area set out in Garson J.’s order to protect passing stocks of coho is not justified in excluding the Plaintiffs’ small boats from fishing for commercial purposes.

Canada is justified in amalgamating quota requirements for groundfish bycatch in the salmon demonstration fishery and in conducting a review of monitoring standards pursuant to the Strategic Framework for Catch Reporting and Monitoring.

DFO’s regime for managing and allocating sockeye and pink, based on its precautionary approach and its responsibilities to many other First Nations located throughout British Columbia, is justified.

Monitoring: Canada is justified in conducting a review of monitoring standards pursuant to the Strategic Framework for Catch Reporting and Monitoring.

Dual Fishing: Dual fishing (fishing for commercial use and for FSC use on the same trip) may be an infringement in specific situations – such as if the cost of two trips (one FSC, one commercial) served as a barrier to the exercise of the right. However, given the absence of financial information or evidence Humphries J. refused to comment further, choosing to endorse Canada’s offer to work cooperatively on appropriate monitoring for dual fishing.

Groundfish

The groundfish fishery includes many species and fishing methods. Management is integrated through the ITQ system whereby each fisher obtains a defined share or quota for each species and an individual fisher cannot exceed their quota. Humphries J. found as follows with respect to groundfish.

Management and monitoring: Canada is justified in maintaining its management system based on ITQs for groundfish in order to protect the resource for all participants. Canada is justified in applying the Strategic Framework for Catch Reporting and Monitoring.

PICFI allocations: Canada’s use of PICFI licence allocations for halibut, lingcod and dogfish is justified but they must be predictable and long term.

Bycatch: Individual quota for each species of bycatch is not justified. However, amalgamated quota and monitoring of individual species would be appropriate.

Priority: Setting an allocation for halibut that gives priority to recreational fishers is not justifiable.

Research and assessment allocations: Research and assessment allocation priority over the Plaintiffs’ right is justified, because these measures protect the fishery for all fishers.

Rockfish: Rockfish, a type of groundfish, was dealt with separately as they are a bycatch species. Canada is justified in taking a precautionary approach for rockfish bycatch allocations. However, Canada would not be justified in setting Total Allowable Catches (“TAC”) for rockfish that prevent the Plaintiffs from fishing their targeted species and should only set TACs for rockfish once halibut, lingcod and dogfish allocations are determined.

Sablefish: Sablefish, a type of groundfish, was dealt with separately as the Sablefish Fishermen’s Association intervened. Given that Humphries J. found there is not an amount of sablefish found within the Plaintiffs’ nine-mile area set out in Garson J’s order that would sustain a commercial fishery, and that any commercial fishery within the nine mile area would likely threaten juvenile sablefish, Canada had no infringement to justify. Further, even if Canada were to be required to justify not providing a sablefish fishery within the nine mile area, Canada would be justified as the existence of such a fishery could threaten juvenile sablefish stock.

Crab

Crabs are resident, not migratory and are caught using traps. Canada limits the number of vessels and traps through area licencing, gear specifications and restrictions on harvest methods. All commercial vessels are subject to electronic monitoring and licence splitting is not allowed. As well, for certain of the Plaintiffs, it was not clear that they had a commercial crab fishery in their territories at all. Humphries J. found as follows with respect to crab.

PICFI allocations: For those Plaintiffs that have no potential for a commercial crab fishery in their territories Canada is justified in awaiting voluntary relinquishment of licences to come into the PICFI inventory. For those Plaintiffs that have the potential for a commercial crab fishery in their territories but have no present access to crab, Canada is not justified in relying only on PICFI to provide these nations with some access to crab.

Predation: The lack of access to a commercial crab fishery for the Plaintiffs because of natural causes, including predation, is not an infringement that Canada must justify.

Management: Canada’s management regime for crab is justified. Canada is justified in setting a trap limit on each small boat until the number of boats to be used by the Plaintiffs and the impact of these boats on the fishery is known, and setting an appropriate monitoring standard after that is completed in consultation with the Plaintiffs.

Electronic Monitoring: If Canada determines that electronic monitoring is required, whether the costs of complying with electronic monitoring requirements will amount to an infringement will be determined on specific facts.

Priority: The Plaintiffs’ priority for the commercial fishery of crab is low due to the lack of a strong historical evidentiary basis to support potential trade. However, recreational fishing cannot take priority over the Plaintiffs’ right.

Dual fishing: The effect of dual fishing must be assessed by Canada through application of the Strategic Framework for Monitoring and Catch Reporting.

Prawn

The prawn fishery is coast wide and licence holders can harvest anywhere on the coast during the commercial season. Vessels are required to have and pay for a satellite Vessel Monitoring System. The main management tool for prawn is the “spawner index” – a measure of the number of females caught per standard trap for a 24-hour period. Humphries J. found as follows with respect to prawn.

Priority: The Plaintiffs’ priority for the commercial fishery of prawn is low due to the absence of an ancestral practice or any description of a modern commercial prawn fishery conducted by the Plaintiffs.

Management: Canada should not have to pay for a satellite Vessel Monitoring System for every boat and is justified in  identifying, in consultation with the Plaintiffs, a method of determining catch and location of hauls. As well, careful sampling and monitoring of the fishery is justified.

Dual fishing: Dual fishing is not part of the Plaintiffs’ right. Its prohibition in the fishery is not an infringement however; even if it were, it would be justified given conservation and sustainability concerns.

PICFI allocations: Canada is justified in not providing further allocations of prawn to the Plaintiffs beyond the licences already allocated to the Plaintiffs for free through PICFI (three full licences, three shared licences), but access must be predictable and long term. PICFI access obtained through voluntary relinquishment is not an infringement.

Gooseneck Barnacles

The Plaintiffs’ gooseneck barnacle fishery has been closely developed with Canada since 2010. The Plaintiffs monitor the fishery, have an exclusive fishery and are not prevented from fishing for gooseneck barnacles. Humphries J. found no infringement and, even if there were an infringement, it would be justified on the basis of the precautionary approach which ensures conservation given the early stage of the fishery.

Herring

Herring exist in the water column and are commercially harvested in four different commercial fisheries: roe herring, spawn on kelp, food and bait and special use. While Humphries J. acknowledged that the priority of the Plaintiffs’ interest in herring is easily asserted by them, she concluded that an analysis of justification for any ongoing infringements of the Plaintiffs’ right to fish for and sell herring is premature – largely due to the fact that a herring fishery has not occurred within the nine-mile area set out in Garson J.’s order for many years.

Dive Fisheries

Humphries J. discussed the commercial dive fisheries (geoduck, horse clams, red and green sea urchins, sea cucumbers and abalone) developed in the 1970s. She found it difficult to anticipate what infringements, if any, would be put forward by the Plaintiffs for these specialized fisheries and chose not to deal with them beyond that.