Affirming a Fuller Expression of the Nuu-Chah-Nulth’s Right to Fish and Sell Fish: Ahousaht Indian Band and Nation v Canada (Attorney General), 2021 BCCA 155

by Savannah Carr-Wilson

This BC Court of Appeal decision is about the scope of five Nuu-chah-nulth First Nations’ (the “Nations”) Aboriginal rights to fish and sell fish, and whether aspects of Canada’s fisheries regime unjustifiably infringe those rights. It is the latest decision in the Nations’ longstanding litigation effort to secure recognition of these rights.

The history of the case

The initial statement of claim in this case was filed in 2003. The matter was eventually set down for trial, and the trial was divided into two phases.

In the first phase of the trial, the judge determined that the Nations had an Aboriginal right to fish for any species of fish within a defined area of their territories, and to sell that fish. The judge also held that the cumulative effect of Canada’s fisheries regime infringed the Nations’ rights, except for the right to harvest clams and the right to fish for food, ceremonial, and social purposes.

The judge adjourned the first phase of the trial to give the parties time to negotiate a regulatory approach that recognized the Nations’ rights and did not unjustifiably infringe them. The judge said that after two years, if there was no resolution, either party could return to court for a determination of whether the infringements of the Nations’ rights were justified.

Canada appealed the first phase order. The BCCA confirmed the order on appeal, although they did exclude geoduck from the scope of the right. The Court stated it could not be suggested that the Nations had engaged in commercial harvesting and trading of geoduck before contact, because it is a “high tech fishery of very recent origin” (Ahousaht Indian Band and Nation v Canada (Attorney General), 2011 BCCA 237 at para 69, as cited at para 31). Leave to appeal to the Supreme Court of Canada was denied.

Negotiations were unsuccessful and the parties returned to court.

The second phase of the trial was heard by a different judge. The purpose of the second phase of trial was to determine if the infringement of the Nations’ rights was justified. The Nations also sought a declaration that Canada failed to meet its duty to consult and negotiate with them.

The second judge interpreted and restricted the first judge’s declaration of the Nations’ rights. She went on to find that certain aspects of the federal regulatory regime were justified infringements of the Nations’ rights, others were unjustified infringements, and others were not infringements at all. She also refused to grant a declaration that Canada had failed to meet its duty to consult and negotiate with the Nations.

The Nations appealed the decision of the second judge to the BC Court of Appeal, resulting in this decision.

The main issues decided on appeal

There were four main issues on appeal:

  1. Canada’s duty to consult and negotiate

The Nations argued that the second judge should have found that Canada failed to meet its duty to consult and negotiate with them. During the negotiation period, Canada had failed to give its negotiators a mandate that would allow them to develop a regulatory scheme tailored to the rights and needs of the Nations. For most of the period, the negotiators were only empowered to accommodate the Nations within the existing framework of laws and policies.

The BCCA (the “Court”) held that the second judge had not erred on this point. However, the Court stated that the judge was “justifiably critical” of Canada’s failure to give its negotiators this mandate, and that the failure to provide this mandate “rendered successful negotiations unlikely” (para 110, 127).

  1. The “interpretation” of the Nations’ rights

The second judge had decided to “interpret” the first judge’s declaration of the Nations’ rights, finding this was necessary for her justification analysis. She said that the fishing right should be interpreted as “a non-exclusive, small scale, artisanal, local, multi-species fishery, to be conducted in their court defined area for fishing, which extends nine nautical miles offshore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation” (para 111).

The Court found that the second judge was entitled to interpret the declaration of rights to undertake the justification analysis. However, she could not do so in a way that diminished the right, or augmented it. The Court held that her interpretation went too far, and would have the effect of diminishing the right. Specifically, it was an error to limit the right to “small, low-cost boats with limited technology and restricted catching power,” both because the judge did not have jurisdiction to place new limits on the declared rights, and because limiting the rights in this way did not “take into account the need to allow Aboriginal rights to evolve to meet modern conditions and requirements” (para 149). Further, the words “small-scale,” “artisanal,” and “local,” should be removed as they did not add to the precision of the declaration and could create confusion.

  1. The analysis of the regulatory scheme on a species-by-species basis

In the first phase of the trial, the judge declared that the cumulative effect of the federal regulatory scheme infringed the Nations’ rights.

The Nations argued that infringement had been dealt with in the first phase of the trial, and the second judge could not revisit or “reopen” the issue. The Court held that the first judge’s finding did not indicate that every aspect of the federal scheme was infringing, and did not include a detailed analysis of the components of the scheme to assess which components were infringing. The second judge was entitled to revisit infringement and consider the regulatory scheme on a species-by-species basis. Indeed, this was necessary if the second judge was to “make useful declarations and grant specific remedies” (para 112).

  1. The justification analysis

The Court upheld much of the second judge’s findings regarding whether the infringement of the Nations’ rights was justified. However, the Court did find that the second judge made several errors.

The Court agreed that the second judge’s justification analysis was impacted by her erroneous re-interpretation of the Nations’ rights, however held that the impact was limited and could be corrected by the Court.

The Court also modified certain aspects of the second judge’s order related to specific species. The Court found that it was appropriate for the second judge to take the historical, cultural, and economic connections of a Nation to a particular fishery into account in a justification analysis. However, in some cases the second judge had relied on this to give the Nations too little priority in the fishery. For example, the Court found that even where species such as sockeye or pink salmon are of less historical and cultural importance, Nations are entitled to have their rights “respected and granted some priority” (para 226). This meant that Canada might need to acquire commercial licenses for the Nation through compulsory means (as opposed to voluntary relinquishment by existing fishers) to accommodate the Nations’ rights.

The role of the courts and remedy

In addition to these four issues, the Court commented on the role of courts in these types of cases. The Court affirmed that the task of the second judge – to define all aspects of the Nations’ fishing rights – was “impossible,” due to the record but also due to the fact that courts are not competent to “design and implement a complete regulatory scheme for managing fisheries” (para 10). The Court stated that at best, courts can examine specific schemes and identify their deficiencies.

The Court stated that there was no need to make mandatory orders at this point as declarations setting out the deficiencies with the fisheries regulatory scheme should suffice to ensure Canada addresses the issues. However, mandatory orders would remain available if Canada did not “act diligently” to address the problems (para 299).

Analysis and implications

Positive aspects of this case include the return of the Nations’ broader declaration of rights, and the Court’s rejection of the second judge’s size and technology-based limits on fishing boats as essentially a “frozen rights” approach to defining the right. The Court stated that Aboriginal rights must be allowed to evolve to meet modern conditions – which in this case could involve using larger boats and more sophisticated technology.

However, the case also illustrates the difficult dilemma Nations must face in asserting their rights, due to Canada’s “prove-it” mentality to Aboriginal rights and title. One way of viewing Indigenous rights is as inherent rights – rights that exist by virtue of the fact that Indigenous Nations – with their own legal systems, cultures, and governments – were present long before the arrival of Europeans. However, in general Canada takes a contingent, “prove-it” approach to such rights. Indigenous peoples are required to prove or otherwise have the existence of their rights recognized through colonial processes – which may involve going to court or engaging in government-to-government negotiation. As this case illustrates, neither process of colonial recognition is a straightforward path. On the one hand, pursuing recognition of Aboriginal rights and title through the courts is often a very lengthy and expensive process. This Ahousaht decision comes approximately 18 years after the initial statement of claim was filed, and 12 years after the first judge’s initial declaration of rights – and does not finally resolve all potential issues related to the Nations’ fisheries. On the other hand, the decision also illustrates that Nations may not always be able to rely on negotiation to meaningfully resolve concerns, as evidenced by the years of unsuccessful negotiation in which Canada failed to mandate federal negotiators in a way that could truly accommodate the Nations’ rights. In short, this case illustrates the need for a new, reconciliation-based process for recognition of Aboriginal rights and title that does not force Nations to prove their rights through lengthy Court cases or be stuck in impaired negotiations.

We note that this decision may still be appealed to the Supreme Court of Canada. The parties have 60 days to file for leave to appeal.

Ahousaht Indian Band and Nation v Canada (Attorney General), 2021 BCCA 155

Savannah Carr-Wilson