Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 237



The British Columbia Court of Appeal upheld an earlier decision by the BC Supreme Court recognizing the right of the Nuu-chah-nulth First Nations to harvest and sell fish in their traditional territories. The Court of Appeal agreed with the Supreme Court of British Columbia’s findings of significant intertribal trade in fisheries products by the ancestors of the Nuu-chah-nulth prior to European contact to establish a commercial right to sell fish.

Justice Chiasson, in his dissent, relied on the Marshall (No. 1) decision to characterizes the right of the Nuu-chah-nulth as a right to sell fish for the modern equivalent of sustenance.  However, the Court of Appeal distinguished the Marshall decision as a treaty rights case and characterized the rights of the Nuu-chah-nulth as an Aboriginal right to sell fish.

Facts of the Case:

The Nuu-chah-nulth First Nations filed a statement claim against the Attorney General of Canada claiming an Aboriginal right to harvest various species of fisheries resources in their traditional territory for "food purposes, social purposes, ceremonial purposes, trade purposes, purposes of exchange for money or other goods, commercial purposes or purposes of sustaining the communities".  In addition, the First Nations also claimed the right sell fisheries resources on a commercial scale, or in the alternative, "to sell for the purpose of sustaining that band's or nation's community or, in the further alternative, to exchange for money or other goods".

The British Columbia Supreme Court recognized the Nuu-chah-nulth Aboriginal right to fish and sell fish of all species within their traditional territory.  The Attorney General appealed on basis that the hearing judge: (1) erred in her legal analysis by failing to characterize the Aboriginal rights claimed by the First Nations at the outset of her reasons; (2) failed to categorize the rights to distinct species of fisheries; (3) erred in finding that trade in fish was integral to the distinctive culture of the Nuu-chah-nulth ancestors; and (4) erred in finding that there had been a prima facie infringement of the Nuu-chah-nulth rights.

Characterizing the Right:

The Court of Appeal reviewed the methodology of the trial judge to determine whether the pre-contact practices of the Nuu-chah-nulth supported a s. 35(1) rights claim to a declaration of an Aboriginal right to fish and sell fish.  The Court of Appeal determined that the trial judge properly identified the claims, assessed the evidence and decided the ancestral practices translated into the modern right being claimed by the Nuu-chah-nulth.

"All Species of Fish":

The trial judge ruled the Nuu-chah-nulth's ancestral practices of harvesting and trading in fisheries resources translated into an Aboriginal right to fish and sell fish of "all species of fish within the environs of their territories".  The Court of Appeal allowed the appeal in part to exclude the Nuu-chah-nulth Aboriginal right to harvest and sell geoduck clams.  The evidence before the Court did not support the Nuu-chah-nulth's ancestral harvesting of this species of fisheries and therefore could not be characterized as an Aboriginal right existing prior to contact with Europeans.  However, the Court did support the finding that the Nuu-chah-nulth pre-contact practice was harvesting and trading in a broad range of marine foods resources and that the specific practice was not tied to "one species of fish and one product".

Trade in Fish Integral to the Distinctive Culture:

The Court of Appeal gave the trial judge a reasonable degree of deference to the factual findings that the Nuu-chah-nulth ancestral communities were engaged in trading significant quantities of fisheries resources prior to contact with the Europeans and that this practice was integral to the society

Prima facie Infringement of the Nuu-chah-nulth Rights:

The Court of Appeal upheld the previous ruling of a prima facie infringement of the Nuu-chah-nulth rights and varied the trial judge's order to provide the parties further time to negotiate a regulatory regime to accommodate the Nuu-chah-nulth's Aboriginal rights to fish and sell fish.