On March 29, 2012, the Supreme Court of Canada refused to grant leave to appeal the most recent decision involving an asserted aboriginal right to fish commercially (Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237). Instead of hearing the appeal, the Supreme Court of Court directed that the BC Court of Appeal re-consider the case in accordance with the principles articulated in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56.
In Ahousaht, the plaintiffs were five First Nations collectively known as Nuu-chah-nulth (“NCN”). These plaintiffs challenged the Department of Fisheries and Oceans’ Allocation Transfer Program, under which fishing licenses are issued and retired (the “DFO Program”). The plaintiffs claimed an aboriginal right to harvest and sell various species of fisheries in their territory for commercial and trade purposes, in addition to harvesting fisheries for food, social, and ceremonial purposes, and said that the DFO Program infringed these rights.
At trial, Madam Justice Garson found that at the time of contact, the NCN’s ancestors fished extensively and used the fish for both food and trade purposes. The trial judge also found that that these practices were integral to the pre-contact culture of NCN’s ancestors, and these pre-contact practices translated into a contemporary right to harvest and sell in the commercial marketplace all species of fish within the NCN’s territories. Finally, the trial judge held that Canada’s legislative regime and regulation of fisheries constituted a prima facie infringement of the plaintiffs’ aboriginal fishing rights.
Garson J. suspended her judgment for two years to allow the parties to consult and negotiate.
Appeal to the BCCA
The Crown appealed the trial judge’s decision. On May 29, 2011, the Court of Appeal largely decided to uphold the trial judgment, accepting the trial judge’s findings regarding the NCN’s pre-contact practices, the contemporary right to harvest and sell fish, and the Crown’s prima facie infringement of the plaintiff’s rights.
The Court of Appeal did, however, find that the trial judge erred in finding that the NCN’s aboriginal rights extended to the geoduck fishery, which is a modern fishery not practiced by the NCN’s ancestors. The Court of Appeal also varied the trial judgment to grant the parties one additional year from the date of judgment to consult and negotiate.
The Court of Appeal’s judgment was significant for recognizing that pre-contact practices may translate to a modern right to fish for commercial purposes, not only for food, social, or ceremonial purposes.
SCC Decision and Its Significance
The Supreme Court of Canada recently denied leave to appeal the BC Court of Appeal’s judgment. However, it also directed that the BC Court of Appeal must re-consider the case in accordance with the principles articulated in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56.
The Lax Kw’alaams decision was issued on November 10, 2011. In that case, the Supreme Court of Canada unanimously held that the Lax Kw’alaams First Nation and others did not have an aboriginal right to a modern commercial fishery. Lax Kw’alaams is a leading decision on the question of aboriginal commercial fishing rights, in which the court outlined a four-stage process for adjudicating aboriginal rights claims:
- identify the precise nature of the claim to an Aboriginal right;
- determine whether the First Nation has proved the existence of a pre-contact practice integral to the distinctive pre-contact Aboriginal society;
- determine whether the claimed modern right has a reasonable degree of continuity with the “integral” pre-contact practice; and
- in the event that an Aboriginal right to trade commercially is found to exist, determine the impact of competing objectives, such as conservation, economics, fisheries by non-aboriginal groups, and reconciliation of aboriginal societies with the rest of Canadian society.
Essentially, in Ahousaht, the Supreme Court of Canada directed that the BC Court of Appeal re-consider its decision using the four-stage process outlined in Lax Kw’alaams. In particular, it appears to be an instruction to the BC Court of Appeal to consider the fourth branch of the test – how to reconcile potentially competing interests with the aboriginal fishery.
In terms of the development of aboriginal fishing rights, it is informative to contrast Ahousaht and Lax Kw’alaams, both of which grapple with the nature and extent of an asserted aboriginal right to fish. These two cases suggest that the specific details of a First Nation’s pre-contact practice will determine the extent of its modern aboriginal fishing right. In Ahousaht, for example, the BC Court of Appeal found that the NCN’s ancestors fished a wide variety of fish for a range of purposes. Consequently, the court accepted that the NCN had made out the case for an aboriginal right to harvest and sell fish commercially. In contrast, in Lax Kw’alaams, the Supreme Court of Canada found that the First Nations’ ancestors only fished for the eulachon species and only traded eulachon grease. On this basis, the Court found that the First Nations had not made the case for a broad aboriginal right to harvest and sell.
Finally, these cases affirm the court’s ongoing resolve to encourage First Nations and the Crown to negotiate issues of aboriginal rights, including title, rather than resorting to the courts for adjudication of these issues. .