Ahousaht Indian Band and Nation v. Canada (Attorney General

In Aboriginal Rights/Defences, Fish Cases on (Updated )

This is a aboriginal fishing rights case where the justification stage of the proceeding was delayed until after the parties had had an opportunity to consult and negotiate accommodation of a declared right to fish any species within their fishing territories (other than for geoduck clams later excluded by the Court of Appeal).

Prior to completion of the justification hearing the following parties groups of parties applied for intervenor status, including the right to lead evidence:

1) The Pacific Prawn Fishermen’s Association ("PPFA"):
2) The Canadian Sablefish Association and Christopher Acheson ("CSA");and
3) The B.C. Seafood Alliance and B.C. Wildlife Federation ("BCSA/BCWF").

After an extensive review of the history of the proceedings, arguments of the parties and case law, the court granted all the parties intervenor status with only limited rights to lead evidence.

The court’s reasons for granting intervenor status included the following:

1) In Lax Kw’alaams, the court made it clear that the process must be flexible and fair to all the stakeholders;

2) "While a licence is not a right, there is a legitimate expectation of some continuity in the industry, and thus members of the fish communities invest considerable sums into the continuation of their livelihoods, which includes the management of the fishery";

3) Interventions are permitted in some circumstances even where an applicant has only an indirect interest;

4) This case legitimately engages the interests of the applicants and there is a potential for the applicants to demonstrate that they bring a unique perspective to the litigation that may be of assistance to the court; and

5) The court of appeal’s deferral of the issues of further delineation of the right and species specificity left the door open to the participation of intervenor s such as the applicants.

With respect to evidence and adding to the record, the court made a general ruling that "the participation of the intervenors in the adding to the record must be circumscribed by the issues that are withing the scope of the litigation as defined in the pleadings, that may assist in its resolution, will contribute to a process that is fair to all stakeholders but will not prejudice the conduct of the case by the parties. In particular, some of the evidence allowed included:

1) Investment of members of the commercial fishery to their own costs of fishing;and
2) Contributions of members of the commercial fishery to the cost of management of the fisheries.