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On April 19, 2021 a unanimous decision of the British Columbia Court of Appeal (“BCCA” or the “Court”), was issued for Ahousaht Indian Band and Nation v. Canada (Attorney General) (the “Ahousaht Appeal”). This decision is the latest in a long series of judgments issued in this case brought by various Nuu‑Chah‑Nulth First Nations (the “Nuu-Chah-Nulth” or the “Plaintiffs”) related to their Aboriginal rights to fish and harvest for commercial purposes.

The case proceeded in two phases: Phase 1 – which went all the way to the Supreme Court of Canada (“SCC”), confirmed and defined the Nuu-chah-Nulth fishing right; followed by Phase 2 which focused on whether Canada’s infringements of the Plaintiffs’ rights, as defined in Phase 1, were justified.

During Phase 1 the Nuu-Chah-Nulth established an Aboriginal right to harvest and sell any species of fisheries resources. The established right was confirmed by Justice Garson (Phase 1 trial judge) as the “aboriginal rights to fish for any species of fish” in an area nine-miles seaward from the Plaintiffs’ respective territories and to sell the fish caught. 1 This description of the right, with the exception of geoduck, was upheld by the SCC.2 The Phase 1 Court directed the parties to enter into negotiations to attempt to resolve issues of justification.3 The Nuu-Chah-Nulth returned to the court for Phase 2 after negotiations with DFO failed to resolve key issues. The Ahousaht Appeal was an appeal of the Phase 2 trial judge’s decision on justification.

Some of the key issues before the BCCA in this appeal were: a) whether the Phase 2 trial judge had improperly qualified the right with terms including “artisanal”, “local” and “small-scale”, and improperly restricted the types of boats that could be used as part of the defined right; b) whether the Phase 2 trial judge had improperly applied a species-specific analysis to the all-species right; and c) whether the Phase 2 trial judge had wrongly concluded that the Crown did not breach its duty to consult with the Plaintiffs in good faith.

Justice Groberman’s decision for the BCCA confirmed that the Phase 2 trial judge did not have the authority to reinterpret the declared right at the justification phase. The Court also held that for an all-species right, the historical importance of a resource is only one consideration in the justification analysis. Species-specific continuity is not required for the Aboriginal right to provide a modern priority to the Plaintiffs in relation to a particular species under an all-species right.

1. Description of the Nuu-Chah-Nulth economic fishing right

The Ahousaht Appeal is a victory for defending against “frozen in time” approaches to defining Aboriginal fishing rights. The Court rejected the Phase 2 trial judge’s reinterpretation of the Plaintiff’s right, finding that the description of the right as “artisanal”, “small-scale” “using small, low-cost boats with limited technology and restricted catching power” was either not helpful or not appropriate. The BCCA was clear that the Phase 2 judge did not have jurisdiction to place new limits on the rights declared during Phase 1, and that the limitations on technology and the types of vessels that could be used did not take into account the need to allow Aboriginal rights to evolve to meet modern conditions and requirements.4

When considering the commercial right, the BCCA recognized that the phrase “moderate livelihood” is not a precise standard. The Court noted that presumably a moderate livelihood would need to include some accumulation of wealth in today’s world, given that a home, buying equipment and a boat, and having savings for retirement, would all be part of a moderate livelihood and require some accumulation of wealth.5

The BCCA also expressed doubt that a clear line can be drawn between culture and economy given that fishing and trading in fish was historically an integral part of the Nuu-Chah-Nulth existence, and served an economic purpose. Justice Groberman, relying on Justice Garson’s description of fishing as a “predominant feature of the Nuu-chah-nulth society”, found that it “clearly had great economic importance” and therefore “sustainability and viability are important to the question of whether the Aboriginal right is being respected.”6

2. Infringement and Justification Analysis – general findings

The Court clarified that the justification analysis should be specific (not overbroad) and that it was appropriate to use a species-specific examination of infringement at the justification stage.7 The Court held that this approach is necessary to give meaning to the justification analysis so as to identify the instances of unjustifiable infringement. For multi-species Aboriginal rights, the parties should identify where an infringement is unjustified towards a particular species as opposed to framing the entire regulatory regime as unjustified.

The BCCA upheld the Phase 2 trial judge’s finding that Canada’s licencing scheme, requiring separate licencing for each vessel and for each species, constituted significant barriers to the Plaintiffs’ participation in the fishery. The Phase 2 trial judge was entitled to consider a fishery’s type and scale to assess infringement. The Phase 2 judge, however, was equally required to take into account the finding that the Plaintiffs historically had the ability to trade “vast quantities of fish”.8

The Phase 2 judge did not fully address allocation and provided limited species-specific findings regarding allocation. The BCCA accepted that it was not possible for the Phase 2 judge to deal with the question of allocation comprehensively due to the nature of the evidence and the changing nature of the regulatory regime.9 However, as noted above, the BCCA did comment on what would need to be included in a moderate livelihood and the importance of sustainability and viability when respecting Aboriginal fisheries.

On the issue of monitoring, the BCCA upheld the Phase 2 trial judge’s finding that a monitoring system would need to be suited to the Plaintiffs’ fisheries which included using smaller vessels. The Court accepted that when fishing for dual purposes (FSC and commercial) at the same time, specific monitoring considerations arise. The BCCA acknowledged the Phase 2 judge’s finding that the Parties should develop a monitoring system better tailored to the Plaintiff’s rights and affirmed that the federal government could consider a requirement to separate commercial and non-commercial fishing to help facilitate monitoring.10

3. Infringement and Justification Analysis – specific species

Following the discussion of the Phase 2 judge’s general findings on licencing, monitoring, mitigation and allocation, the Court undertook a species-specific analysis of the lower court’s findings. Some of the highlights include:

Salmon: 

  • The Court rejected the approach which suggested that if a particular species was not of historical importance to the Plaintiffs (eg. pink or sockeye salmon were not heavily relied upon at time of contact) that it had less priority in a modern fishery. The Court reaffirmed that the sockeye and pink salmon fisheries remained within the Plaintiffs’ established multispecies Aboriginal right. The Court clarified that historical importance of a resource is but one of the many considerations that should be assessed when considering infringement and justification in a modern context. A lack of historical importance does not exclude the Aboriginal right holders’ entitlement to have that right respected and given a degree of priority. Historical importance is a consideration in the justification analysis but it cannot be relied on to freeze an Aboriginal right in time. The Plaintiffs’ all-species right is characterized by the Plaintiffs’ responsive adaptation to their changing fisheries. It is therefore foreseeable that a less frequently caught species now may gain greater importance in the future.11
  • The Court could not find the rationale for denying the Plaintiffs’ exercise of their rights within the exclusion zone when the exclusion zone remained open to recreational fishers.
  • When reviewing DFO’s reliance on the voluntary relinquishment under their PICFI12 program, the Court indicated that compulsory acquisition of licences may be necessary in some instances to accommodate the Plaintiffs’ right.13

Groundfish

  • The Court supported the Phase 2 judge’s order on sablefish and groundfish except to not limit the groundfish fishery to small vessels. Should the Plaintiffs choose to apply their quota to their trollers, they should be able to do so. Fishing with trollers, however, will not increase their overall quota and must not result in greater environmental damage than small vessel fishing.14

Prawns

  • The BCCA rejected the Phase 2 trial judge’s finding that DFO’s mitigation policy based on voluntary relinquishing of existing licences to prawns was sufficient to justify the infringement of limiting the Plaintiffs’ access to the prawn fishery.15 The Court remarked that these measures did not respect the Plaintiffs’ priority. Canada must explore reasonable alternatives and cannot simply wait until someone chooses to relinquish their licence in order to provide the right holding nations commercial activities.16

4. DFO’s conduct during Negotiations

The Plaintiffs advanced the argument that DFO had not conducted negotiations in good faith after Phase 1. The Court upheld the Phase 2 judge’s comments on the complexity of fisheries issues and the justification negotiations; in particular that the state of the fisheries and fisheries regimes were never static resulting in points of negotiations constantly changing. The Court referred to the negotiation context as a “moving target”.

The BCCA did however identify aspects of Canada’s negotiation strategy that, “rendered successful negotiations unlikely”. Namely, Canada relied on local negotiators who had difficulty communicating with and seeking approval from the Minister and the central DFO office in Ottawa. Canada gave its negotiators a limited mandate, which did not allow them to develop or implement regulatory schemes outside of the ordinary commercial fishing regimes. This meant that no new or innovative regulatory regime specific to the Plaintiffs’ right was possible.

While the complexity and novelty of these fisheries negotiations meant that the Court did not find the negotiations had been conducted in bad faith, by identifying deficiencies in Canada’s negotiation strategy and providing direction for future negotiations of similar complexity, it is arguable that inadequate lines of communication and prohibitively restrictive mandates will be less likely to be considered in “good faith” going forward.

5. Some Implications

The Court was clear that an all-species right should be able to evolve, including changing priorities and species as the resources change.17 Similarly, modern preferred means of exercising the allspecies right must be respected. These findings reaffirm that Aboriginal fishing rights must be able to evolve with the times and in respect of a changing world. With environmental and human factors affecting abundance and the sustainability of fisheries, the importance of or reliance on a resource may fluctuate over time. Historical differences in the importance of a species during the justification analysis may still be considered, but do not negate the priority resulting from an all-species Aboriginal fishing right.

While the BCCA did not make findings on allocation, the judgement clearly requires that DFO work with the Nuu-Chah-Nulth to carve out a space for their fisheries in priority to other fisheries. The viability and sustainability of the fishery in a modern context is relevant to respecting the aboriginal commercial right. In addition, simply relying on the voluntary relinquishment will not be enough in specific fisheries.

This case was not about Aboriginal title. While the issue of the role of the Nuu-chah-nulth in fisheries management was not a central issue at trial or on appeal, the Court noted that it is an important background issue. The Court noted that in a context where collective fishing rights are at stake, the management of the fisheries will require Aboriginal participation from a practical standpoint.18

The Court emphasized that fisheries matters are complex and that this case’s history before the courts exemplified the complexity of bringing broad questions and issues to the courts. The Court stressed that negotiation is often the best forum for resolving highly complex Aboriginal fishing rights issues. The comments from the Court have the potential to improve negotiations by identifying deficiencies in how DFO had conducted negotiations. The Court also noted on appeal that a case that attempts to remedy all deficiencies of a regulatory regime in one case may become unwieldy and unfeasible, and too complex for a court to address.

The Ahousaht Appeal reoriented the justification analysis away from significantly limiting all-species rights because of changes in importance or reliance on a species. During uncertain times, recognizing the inherent adaptability of the Plaintiffs’ all-species right protects its meaningful expression for the future. This case also reaffirmed that negotiation are the preferred forum for establishing mutual understanding on the meaningful expression of an all-species right. The Crown must approach negotiations in good faith, and these approaches are now better defined by the Court.

 

1 Para 20.
2 Decision to Exclude geoduck from the order was upheld by the BCCA upon reconsideration, Ahousaht Indian
Band and Nation v. Canada (Attorney General), 2013 BCCA 300. Leave to appeal to the Supreme Court of Canada
denied, upholding the exclusion of geoduck, (Application for Leave) Attorney General of Canada v. Ahousaht Indian
Band and Ahousaht Nation, represented by Shawn Atleo on his own behalf and on behalf of the members of the
Ahousaht Indian Band and the Ahousaht Nation, et al., 2014 CanLII 3511 (SCC).
3 Para 25.
4 Para 149.
5 Para 75.
6 Para 195.
7 Para 163.
8 Para 164.
9 Para 198.
10 Para 191.
11 Para 227.
12 Pacific Integrated Commercial Fisheries Initiative
13 Para 226.
14 Para 244.
15 Para 276.
16 Para 279.
17 PThe only limitation imposed by the Court is that the fishery must involve an evolution of traditional practices.
When the fishery has no close resemblance to any traditional fishery, then that species will be excluded. In this
case geoduck was excluded from the Nuu-Chah-Nulth all-species fishing right based on that rationale.
17 Para 183-188.


Posted in Case Summaries