On July 2, 2013 the British Columbia Court of Appeal issued its reasons for decision on the reconsideration of Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300. The Court of Appeal upheld its earlier decision which agreed with the trial judge’s conclusion that an Aboriginal right to harvest fish and sell fish—except for geoduck—had been made out by the Nuu-chah-nulth people on the west coast of Vancouver Island.

The Court of Appeal’s original decision on this matter in 2011 (2011 BCCA 237) had been the subject of a leave application to the Supreme Court of Canada (SCC). In refusing to grant leave, the SCC sent the case back to the Court of Appeal for reconsideration in light of a case on fishing rights in British Columbia that they had recently decided: Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56. (Read our previous Bulletin on the Lax Kw’alaams case and Bulletin on the SCC decision to send Ahousaht for reconsideration)

Generally speaking, a claim for infringement of Aboriginal rights broadly has three parts: first the Aboriginal group must prove that they have the rights, then the Aboriginal group must show that the Crown has undertaken some action that is a prima facie infringement of those rights, and finally the Crown has the opportunity to justify that infringement. The Court of Appeal approved of the procedure that the trial judge followed, which was to decide that the Nuu-chah-nulth had a general right to fish and sell all species of fish and that Canada’s fisheries regulations were a prima facie infringement of those rights, but leaving the issue of whether Canada could justify that infringement to a latter proceeding. The Court Appeal agreed that it was practical to allow Canada the opportunity to find a way to accommodate the Nuu-chah-nulth’s rights that the Court had defined. In the event that either party was unsatisfied with the accommodation offered, then the justification portion of the case would commence.

The Court of Appeal recognized the practicality of allowing the Crown an opportunity to justify the infringement, considering that it had denied any right to sell. The Court stated:

[32] It should be recalled that prior to this action, the appellant never recognized that the respondents had an Aboriginal right to fish. The appellant had, however, provided evidence at trial of the efforts made to enhance and provide access to fishery resources for the benefit of the respondents. Garson J. said this near the conclusion of her reasons:

[875] Here, it is for the parties to negotiate towards a quantification of the amount and means of exercise of the plaintiffs’ aboriginal rights to fish and to sell fish that will recognize these principles. For example, Canada may be able to justify, depending upon the health and abundance of fish stocks, considerable constraint on a special Nuu-chah-nulth fishery. However, as I have endeavoured to make clear, negotiations have previously gone forth without recognition of the plaintiffs’ aboriginal rights. They must now proceed on a different footing than has heretofore taken place, one that starts with recognition of the plaintiffs’ constitutional rights to fish and to sell that fish.

[876] The delicate and challenging task now facing the parties is to recognize the plaintiffs’ rights within the context of adherence to Canada’s legislative objectives and to fairly balance the plaintiffs’ priority with other societal interests.

The Crowns and intervenors argued that past cases demonstrate that there must be some specificity in terms of species. The Nuu-chah-nulth had claimed a right to harvest and sell all species of fish from the sea and the Trial Court accepted that characterization. The Court of Appeal also accepted it, but provisionally, saying that there may be a need for greater specificity at the justification stage and hiving off a specific species, geoduck, as not being historically harvested. The Court’s reasoning on this point is not as clear:

[33] The appellant and certain of the intervenors submit that the judge failed to sufficiently address species specificity and that this resulted in her characterizing too broadly the right said to be prima facie infringed, namely, the respondents’ right to fish for any species of fish within their fishing territories and to sell such fish.

[34] It seems to me that the issues the trial judge envisioned as being subject to negotiation or to be resolved by further proceedings largely encompass points 3 and 4 of the analysis mode suggested by Binnie J. in Lax Kw’alaams. These include the questions of continuity and the delineation of a modern right. Salient issues that remain to be addressed between these parties include those related to species and a more specific delineation of any modern right. In my view, the judge was not required to consider or articulate more than she did concerning individual marine species at this stage of the proceedings.

There was one point of controversy among the judges of the Court of Appeal that remained in both their original decision and the reconsideration. Justice Chiasson disagreed with the decision of Justices Hall and Neilson on the characterization of the right to sell. The majority put no language of limitation on the right to sell, while Hall J.A. found that the evidence, and a reference in the Trial Court’s decision that the “right does not extend to a modern industrial fishery or to unrestricted rights of commercial sale”, were a limitation on the right. Hall J.A. would have the right to sell limited to the “aboriginal right is to sell fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities”.

Conclusion

Although none have yet indicated it, there is a likelihood that this decision will be the subject of an application for leave to the Supreme Court of Canada. Whether the Supreme Court has an appetite to allow it through to hearing this time remains to be seen, but the issue of the scope of the Aboriginal right to sell (as outlined by Hall J.A.) is something that could use some further clarity from the Courts.