This case involved a claim by five Nuu-chah-nulth First Nations with territories situated on the west coast of Vancouver Island to a wide range of aboriginal fishing rights over a large geographical area including submerged lands extending 100 nautical miles into the ocean and rivers. After a lengthy trial, in 2009 the trial court: (1) granted a judgement declaring an aboriginal right to fish for any species of fish in the environs of their territories extending nine miles out to sea and to sell fish such fish; (2) found a prima facie infringement of the aboriginal right; and (3) reserved judgement on infringement, giving the parties a two-year hiatus to attempt to negotiate an appropriate level of accommodation.
After one appeal to the British Columbia Court of Appeal (“BCCA”), one order by the Supreme Court of Canada (“SCC”) for a reconsideration by the BCCA, one hearing by the BCCA to reconsider, one denial of leave to appeal to the SCC and numerous attempts at negotiation, in March of 2015 the case finally returned to the Supreme Court Trial division for a continuation of the trial on the issue of justification. The continuation took approximately 150 days of court time with three intervenors participating. The decision is a length of 401 pages.
This case is somewhat unique because in the past all aboriginal fishing rights cases that have gone to the justification stage have been regulatory prosecutions dealing with one species and one impugned regulation under which the charge had been laid (para 60). This case was much broader.
The plaintiffs were in part successful in the sense that they obtained both a number of declarations of unjustified infringements and many of the declarations that they were seeking of priority over commercial and recreational fisheries. However, they were for the most part unsuccessful in obtaining the large allocation increases that they had sought in negotiations. The were also for the most part, unsuccessful in obtaining a declaration that all licences and quota they obtained through PICFI (a government funded program to provide licences to First Nations through voluntary relinquishments of licences from the commercial sector) were not to be considered accommodations. With respect to the justification analysis, the court looked at the evidence of historical participation in fisheries and tended to be much more generous in finding unjustified infringements in the fisheries such as herring, halibut and the chinook fisheries where there was strong evidence of historical participation. The court found no strong evidence of a historical connection for some of the more profitable fisheries such as sablefish, prawn and and to a lesser degree crab. The Court was also less generous in newly developed fisheries that required modern equipment.
As of the 2018-05-29 the case is currently under appeal.
Although this decision is very lengthy, it does contain summaries. A number of these summaries are set out below.
WHAT CAN OR SHOULD BE DONE WITH THE RIGHT AS DECLARED
(251) This court is bound by the Court of Appeal and by the fact that the Supreme Court of Canada did not grant leave on Canada’s second application. The right must stand as it has been declared, and cannot be restated in the manner suggested by Canada. The justification exercise starts from the right as it is presently declared.
(252) The anomalies left from the previous decisions tie this court’s hands to some extent. That said, it ultimately serves no purpose to circumscribe the present process in a way that contravenes the directions of the Supreme Court of Canada in Lax Kw’alaams. According to the declarations, this stage of the trial is about justification. This court must start the justification analysis on the basis of the right as it is presently declared. In its present form, however, the declaration provides no assistance for the next stage of the analysis. To fail to interpret the declared right before beginning a justification analysis would render the process unmanageable and without meaning.
(256) To summarize, this court cannot reword Garson J.’s declaration, but the right she declared must be interpreted by reference to the pleadings and her reasons in order to give structure to the justification analysis. Madam Justice Garson noted that the plaintiffs called no evidence before her on the scale of the right they sought. Although she declared the right, she said she was leaving the scale and scope of the right to be determined at a future time (para. 487). In my view, that does not accord with Lax Kw’alaams, as the Crown is entitled to know exactly what is claimed before the right is declared. In any event, the justification analysis cannot proceed without an understanding of the scope and scale of the right, so the time for that determination is now. 
CONTINUITY AS IT RELATES TO SPECIES SPECIFICITY
(289) As a result, I conclude that I must accept the plaintiffs’ proposition that the present declaration as it stands is the starting point,that is, an analysis of continuity in respect of each individual species cannot result in subtraction of species from the “any species” declaration. It is too late to require the plaintiffs to deal with anything but the “any species” right as declared by Garson J.
(290) Since justification is the only issue before this court and no further evidence can be called on any issue except justification, the only sensible approach to deal with continuity is the one I take from Canada’s submissions, and which had some reflection in the intervenors’ position as well,the importance of the species to the plaintiffs’ ancestral trade and practices as can be gleaned from Garson J.’s judgment, will enter into the accommodation/justification/reconciliation analysis.
(383) Taking the plaintiffs’ own description of their preferred means, Dr. Hall’s letter, Mr. Woods’ evidence, and Dr. Morishima’s views, I conclude that Garson J. found that one indication that the plaintiffs’ right was infringed was because they were prevented from using their preferred means, by which she meant small, low cost boats in community-based localized fisheries involving wide community participation, in a multi-species fishery. It was important to her reasoning that, without licence splitting, such a fleet could not fish commercially. It is an essential characteristic of this fishery, from all of this evidence, including that of Dr. Morishima, that it is a localized small boat fishery with restricted catching power.
(385) I agree that a consideration of preferred means, while useful in determining the scope of the right because it is one indicator of infringement of the right, does not in itself characterize the right. The fact that the plaintiffs’ preferred means of exercising their right is “small, low-cost boats” does not necessarily mean the right attaches only to small, low-cost boats. On the other hand, the fact that many of the plaintiffs have now acquired average-sized trollers with higher catching power since the salmon demonstration fishery began in 2012, and that the use of those trollers has increased and is expected to grow even further, does not change the scope or interpretation of the right into something other than was intended in the judgment from 2009, insofar as that can be determined from a reading of Garson J.’s reasons as a whole.
(386) In summary, I conclude that while the use of small trollers is not excluded from this fishery, “preferred means” does not encompass a troller fleet roughly equivalent to the average-effort troller fleet used in the regular Area G commercial fishery.
DISCUSSION OF INTERPRETATION OF THE EXTENT OF THE RIGHT
(414) Some basic interpretive principles as to the extent of the right emerge:
(1) the right is restricted to the nine-mile CDA;
(2) the right provides for a community-based localized fishery with wide community participation;
(3) the right provides for the plaintiffs to be able to fish using their preferred means, that is, small, low-cost boats with restricted catching power, with wide community participation, within the CDA;
(4) the right is multi-species; therefore it is the totality of the fishery that is relevant, not one particular allocation of a species;
(5) the right is not unrestricted;
(6) the right is not exclusive;
(7) the right is not to an industrial fishery;
(8) the right is not to accumulate wealth; and
(9) the description of a right designed to sustain the community through the harvest and sale of fish was not accepted by the trial judge, and thus the right does not provide a guaranteed level of income, prosperity, or economic viability.
(441) In my view, the only conclusion to be drawn from Garson J.’s reasons as a whole, despite the lack of parameters in the declaration, is that the declared right to fish for any species and to sell that fish is to be interpreted as a small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.
STATUTE MILES OR NAUTICAL MILES
(468) Using the customary meaning of measurements at sea, which all parties agree is nautical miles, and in the context of the Supreme Court of Canada’s urging courts to give a liberal approach to the interpretation of aboriginal rights and to interpret ambiguities in favour of aboriginal peoples (Van der Peet at paras. 23 and 24), in my view it is appropriate to use nine nautical miles as the outer limit of the CDA.
THE MECHANICS OF THE JUSTIFICATION ANALYSIS
(867) It must be kept in mind that the court cannot make political decisions or design a fishery, nor is this a mediation where the court can work with the parties to reach a satisfactory arrangement, helping the parties to agree on one or another of their respective approaches. It is not an arbitration where the parties have agreed that the court can set allocations. This is not a commission of inquiry — although as I have said, at times it seemed to resemble one, despite the caution against such an approach in Lax Kw’alaams. This is a trial in which, according to the declarations made previously, the parties have now come to this court “for a determination of whether the prima facie infringement of the plaintiffs’ aboriginal rights is justified,” in respect of a right that was given no parameters when it was declared and infringements that were not specified, while achieving reconciliation with the rest of Canadian society. That task is difficult enough. The court was not also given the task of designing and supervising a fishery, or of setting or approving allocations arising from a negotiated context. In my view, that is what the approach suggested by Garson J. for the Negotiations, and adopted by the plaintiffs for the litigation, leads to.
(878) In an attempt to move forward, I have set out what I consider to be the correct interpretation of Garson J.’s reasons in respect of the right she declared. I have also set out the areas of infringement I will deal with, in an effort to focus the declaration that the entire scheme infringes the right.
(879) The legislation, regulations, and policies, which were declared in their entirety to be a prima facie infringement of the plaintiffs’ right to fish and sell any species of fish, have remained unchanged since Garson J.’s judgment.
(880) In my view, the justification exercise should involve a consideration of those infringements,that is, it should focus on the legislative and regulatory sections that were pleaded and which give rise to the characteristics of the overall regime that Garson J. referred to, as well as the specific policies to which the plaintiffs take objection.
(881) Following that approach, there are general conclusions on infringement and justification that can be reached, given the nature of the right-based fishery as I have interpreted it from Garson J.’s judgment. Those findings relate to the legislation, regulations, and policies.
ASPECTS OF INFRINGEMENT AND JUSTIFICATION APPLYING TO ALL SPECIES
(904) It is not difficult to see that the existing regime which requires (1) one commercial licence per vessel, (2) all vessels to be registered, (3) licence fees, (4) a restriction on splitting or transferring licences, (5) one licence per species, would be too costly for a small boat multi-species fishery. As well, licence allocations that depend on limited entry based on previous catch is not justified for this fishery. DFO has not attempted to justify these approaches for a small-boat fishery.
(905) Thus I think it is fair to say that Canada does not take the position that the entire regime, found to be a prima facie infringement, can be justified and should remain unchanged. DFO has funded the training and salaries of the T’aaq-wiihak biologists, fishing coordinator, and other staff, including monitors, and has already addressed many aspects of the regime in the salmon demonstration fishery. PICFI licences provided outside the right have always been free of cost. This has continued for the PICFI licences provided since 2009 in the salmon demonstration fishery and in other fisheries. DFO has not required adherence to the regular commercial rules for the plaintiffs’ PICFI salmon licences. DFO has not required registration numbers for the vessels. Licence splitting has been allowed in the salmon demonstration fishery. Expanded bycatch retention for sale has been offered. DFO has allowed the amalgamation of quota onto one licence for the plaintiffs’ use.
(906) The accommodations listed above engage certain aspects of the Fishery (General) Regulations, ss. 22(1), 33(1) and 35(2), and of the Pacific Fishery Regulations, 1993, ss. 19(1) and 22(1), as they apply to the plaintiffs’ right-based fishery. The precise application of those sections will have to be the subject of discussion with counsel.
(907) I conclude that the regulations setting out these requirements are not justified for the plaintiffs’ right-based fishery. While these are decisions DFO has already made, the regulations remain unchanged. Thus the present accommodations and flexibilities are not a permanent solution. It may be that a new regulatory mechanism or some sort of formal protocol will be required for this fishery.
(911) The requirement for quota for groundfish both as bycatch and as an aspect of a small-boat multi-species fishery also seems to be an obvious infringement, but DFO is justified in requiring an appropriate monitoring and catch reporting standard to ensure conservation and sustainability of the fishery. I will discuss this in the context of the groundfish fishery.
(912) In general, as I have mentioned before, I will not be dealing with details of gear restrictions or requirements, specific area restrictions or requirements, and openings and closings. Those things are aspects of daily fisheries management and it would be impossible to anticipate them or pronounce on them. It should be clear that DFO cannot manage the fishery in such a way that unjustifiably infringes on the right, and consultation is required. However, it is still important to keep in mind that, although consultation is essential, details of management are not necessarily part of the right per se unless they infringe on its exercise.
(913) If the effect of a specific in-season management decision is alleged to have infringed the right, it will have to be dealt with individually, through discussion and resolution, or failing that, judicial review. I realize that judicial review may not be timely enough in many cases, but there is simply no way for this court to anticipate and prescribe an approach for these details of seasonal management.
SALMON ALLOCATION POLICY
(917) Canada’s position from the beginning of the Negotiations has been that the plaintiffs have been given a commercial right of unknown scope; that is, the right takes its character from the word “commercial”. However, I agree with the plaintiffs that the right is an aboriginal fishing right. Its essential character is as an aboriginal right. Because it is also a commercial right, Gladstone states clearly that it is not an exclusive right, and does not extinguish the right of public access to the fishery. Nevertheless, as an aboriginal right, it has priority over the other sectors, after FSC and treaty rights (limitations the plaintiffs acknowledge), as long as the other factors in Sparrow are properly balanced.
(925) However, the fact that the declared aboriginal right is to fish and sell fish into the commercial marketplace does not lessen the priority to be accorded to the aboriginal right — it does not allow Canada to start out on the allocation process by treating the plaintiffs’ fishery as simply another commercial fishery. To accord priority to the recreational fishery over the plaintiffs’ aboriginal commercial fishery is not justified.
(930) Canada’s position is a valid one: that voluntary relinquishment of licences promotes reconciliation, whereas involuntary relinquishment does not. However, accommodation of the plaintiffs’ right cannot be stymied by the necessity to obtain licences only through the mitigation policy if that policy prevents a full realization of their right. This will differ species to species, and I will discuss it in the context of each species.
(931) For instance, the case for not applying the mitigation policy to chinook salmon is strong because the plaintiffs have an extensive historical and modern relationship with that fishery that supports commercial trade. However, this is not necessarily the case for commercial fisheries that have been developed by the commercial sector itself in recent years and for which there is no evidence of ancestral involvement of the plaintiffs in trade of that species, such as the prawn, crab, and sablefish fisheries. In those cases, a policy which relies on voluntary relinquishment of licences might well be justified.
(934) Thus it is not possible to deal generally with this policy. It requires evidence in relation to a specific species. I would not declare the entire mitigation policy to be inoperable as an infringement of the right, but in certain circumstances it may act as an unjustified barrier to accommodation. This will be considered in respect of each species.
DUTY TO CONSULT
(804) Given all these circumstances, I cannot see that it is appropriate or necessary to make a general declaration at this point in respect of a failure of the duty to consult in good faith either under the common law or under the declaration. There were stumbling blocks presented by both sides, and this process is still in progress.
CONSULTATION ON EACH SPECIES
(1045) It is correct that certain species were debated more thoroughly than others. However, I note that extensive discussions have taken place, albeit within the constraints of the limited mandate provided to the Regional staff. I also note DFO’s commitment to ongoing deep consultation. Therefore I do not see this as an issue upon which the justification analysis should stand or fall.
USE OF PICFI
(1068) I will deal with the mitigation policy through which the PICFI inventory is obtained when it comes to each species. In general, I am unable to conclude that the source of the licence negates its effect on accommodation. It is important to note that a PICFI licence is a free licence provided to the plaintiffs. The salmon PICFI licences used by the plaintiffs are not currently constrained by the usual rules, and the findings I have made will affect conditions of other licences provided through PICFI. The relationship of PICFI to the plaintiffs’ fishery will be discussed for individual species.
(1069) The mitigation policy itself cannot act as a bar to appropriate accommodation for some species, as I will discuss below. However, the fact that a licence came through PICFI is not a reason to discount it.
(1070) The plaintiffs have chosen to use some of the licences that have been provided since the 2009 decision outside the CDA. It is important to note that the exemption from some of the regular commercial rules that attach to a PICFI licence only operates when the licence is being fished in the CDA. Exemptions for particular aspects of the rules are subject to the application of the Strategic Framework for Monitoring and Catch Reporting for each species, in consultation with the plaintiffs.
(1267) The following conclusions are specifically applicable to the salmon fishery:
1. the Salmon Allocation Policy insofar as it accords priority to the recreational fishery over plaintiffs’ right-based fishery for chinook is not justified;
2. Canada’s allocations for AABM and ISBM chinook, insofar as they have been set based on giving priority to the recreational fishery pursuant to the Salmon Allocation Policy, are not justified;
3. the use of PICFI to provide salmon licences to the plaintiffs is justified, but the mitigation policy itself, in the event of an inability to allocate sufficient chinook to the plaintiffs through PICFI alone, is not justified;
4. Canada is justified in not allowing a 5,000 piece winter fishery, given the logistics of allocating salmon to Canada under the Pacific Salmon Treaty;
5. Canada’s management scheme for coho (ocean-based and terminal), based on an escapement rate, is justified, but Canada is not justified in according priority in coho to the recreational fishery over the plaintiffs’ right-based fishery;
6. the five-mile corridor to protect coho stocks of concern is not justified for low-effort boats in the right-based fishery;
7. Canada’s management regime for sockeye, pink, and chum is justified, subject to the licencing regime infringements already noted;
8. Canada is justified in amalgamating quota requirements for groundfish bycatch in the salmon demonstration fishery and in conducting a review of monitoring standards pursuant to the Strategic Framework for Catch Reporting and Monitoring; and
9. The court will not make findings on the reasonableness of negotiating positions. Canada is not required to justify refusing to implement the plaintiffs’ proposal, but in any event would be justified in not accepting the salmon allocations set out in the plaintiffs’ plan. However, the allocation for chinook contained in the LTO must be reassessed insofar as it has been set on the basis that the recreational fishery has priority and that licences must be mitigated.
(1484) In my view, the transferability of quota in an integrated fishery is not in itself an infringement of the plaintiffs’ right; it can only be helpful to each individual fisher. If the plaintiffs remain separate from the integrated groundfish fishery, they may find their fishing halted because they have reached a bycatch quota limit and have nowhere to turn to get extra quota, and vice versa for nearby commercial fishers.
(1485) I also accept that individual accountability is important in this fishery; it is a justifiable approach because of the number of vulnerable species that are susceptible to bycatch.
(1486) Because of the nature of this fishery, I accept that integrated management is justified in order to protect the resource for all participants. I conclude that Canada is justified in maintaining its management system based on ITQs for groundfish, and in demanding individual accountability for catch for each species.
(1487) However, the costs of a quota transfer from the regular commercial fishery could, in certain circumstances, act as a barrier to the right-based fishery. This problem can commonly arise with certain species of rockfish, although it can occur with the targeted species as well. Since DFO is providing access to the plaintiffs through PICFI, however, that appears to be something DFO can deal with if a problem arises. I will set out the responsibility of DFO in respect of rockfish shortly, as depletion of rockfish quota has the potential to affect the entire fishery.
(1488) I have concluded earlier in these reasons that this is a multi-species fishery conducted from small, low-cost boats within the CDA. Thus, there are three points on which I find that the application of the present regime to the T’aaq-wiihak groundfish fishery is a continued unjustified infringement.
(1489) The first, as is the case with the salmon fishery, is the requirement of one licence per vessel. Licence and quota splitting among the small-boat fleet must be permitted.
(1490) The second point concerns bycatch retention. A general prohibition against the retention of bycatch for sale is not justified for the plaintiffs’ right-based fishery, but if there are species in dispute, this will have to be resolved on specific facts. At the conclusion of trial, offers respecting retention of bycatch for sale were outstanding. The requirement for individual quotas for each species of bycatch is not justified for the plaintiffs’ right-based fishery. Amalgamated quota, already provided by DFO, is appropriate for this multi-species small boat fishery.
(1491) However, monitoring of individual species is justified in the interests of conservation. How this relates to amalgamated quota and how it can be properly monitored must be the subject of further assessment and consultation.
(1492) Third, Canada is not justified in imposing the cost of licences and quota on the small-boat fishery.
(1493) The above aspects of the regular regime are thus not applicable to the plaintiffs when they are fishing within the CDA, even if the source of the licence is through PICFI. I do not have information on whether or how other PICFI rules might still unduly constrain a particular plaintiff which does not control their PICFI aggregate from exercising their right to fish and sell fish. This must be dealt with on specific facts.
(1494) This leaves the issue of the requirement for EM. I have concluded that this fishery is a small-scale fishery to be conducted in small, low-cost boats, with wide community participation. There is no evidence of how the cost of EM will impede the T’aaq-wiihak fishery, given this scope and scale. The plaintiffs simply assume it will, and the costs of EM are generally acknowledged by DFO witnesses to be a barrier, especially for small boats.
(1495) Adequate monitoring is required to ensure the TAC is not exceeded, and that individual species are adequately accounted for, but given the scale of the fishery, EM may not be required.
(1496) Overall, there is a serious deficit in information before the court in respect of the monitoring of a groundfish fishery within a multi-species fishery, including the cost of such monitoring. The plaintiffs have not had experience in monitoring anything but the salmon demonstration fishery. A groundfish demonstration fishery would have been of help, but was not approved by Ottawa until a time that was too late for trial. At present, DFO has not conducted a risk assessment on the T’aaq-wiihak fishery as it pertains to groundfish. It appeared from the evidence of Dr. Hall and Ms. Murdoch that the parties were making progress on monitoring discussions, but the results of those discussions are not before the court.
(1497) This is a unique multi-species fishery, and DFO has already agreed that dual fishing and bycatch retention can take place in the T’aaq-wiihak salmon fishery, subject to appropriate monitoring. I assume that the small boats will be fishing for a variety of species and for dual purposes on one trip. To try to anticipate adequate monitoring requirements at this stage is pure speculation.
(1498) As I stated above in the context of the salmon fishery, DFO is justified in subjecting this multi-species fishery to the Strategic Framework for Catch Reporting and Monitoring in order to determine an appropriate standard. Consultation with the plaintiffs is required, and should include discussions on how to integrate the T’aaq-wiihak coordinators into the appropriate monitoring regime.
(1499) If this process results in DFO deciding that EM is required, information is needed to determine if cost or cost sharing causes a barrier to the exercise of the right. As mentioned during the discussion of the Negotiations, DFO has already funded the initial costs of EM but there was not much uptake. If a demonstration fishery is necessary, DFO is not justified in imposing the cost of EM, if any, on the small boats while that fishery is being conducted.
(1500) For the reasons I have already articulated in connection with the salmon fishery, recreational priority over halibut is not justifiable. However, whether that actually results in an infringement of the plaintiffs’ right-based fishery would have to be determined on specific facts.
(1501) Finally, I agree that Canada is justified in placing research and assessment allocations ahead of the plaintiffs’ fishery because these measures protect the fishery for all fishers.
(1513) My conclusions on this fishery are set out in the discussion above, in particular at paras. 1484 to 1501. In addition, I have concluded:
(1) The use of PICFI for allocations of halibut, lingcod and dogfish is justified, but the allocations must be predictable and long term.
(2) There is no infringement of a right to a commercial sablefish fishery; if I am wrong on that, any infringement is justified on the basis of conservation;
(3) DFO is justified in setting adequate allocations of rockfish to enable the T’aaq-wiihak groundfish fishery for halibut, lingcod, and dogfish to proceed;
(4) Canada is not justified in setting an allocation for halibut that gives priority to the recreational fishery, but the practical effect of this has to be examined in a specific context, if one arises.
(1609) The plaintiffs have an aboriginal right to sell crab into the commercial market place, and their licences have been provided free of cost. However, priority in respect of a commercial crab fishery is low and mitigated accommodation through PICFI is appropriate.
(1610) Canada’s management regime for crab is justified, subject to the general finding above respecting the licencing system which requires one licence per boat. Provision of access through PICFI, which is without cost to the plaintiffs, is justified.
(1611) The Hesquiaht and Tla-o-qui-aht nations have the potential for a commercial crab fishery in its territory, but have no present access to crab and there is no PICFI inventory available. DFO is not justified in relying only on PICFI to provide these nations with some access to crab, unless that access is not possible due to sea otter predation or other natural causes.
(1612) DFO is justified in determining the effect of many additional small boats catching crab and setting monitoring standards through the Strategic Framework for Catch Reporting and Monitoring, and setting an appropriate monitoring standard after that is completed, in consultation with the plaintiffs. If DFO determines that EM is necessary for the plaintiffs’ small boat fleet when harvesting crab, and if there is a disagreement on cost or cost sharing, and whether cost will interfere with the exercise of the right, this will have to be determined on specific facts.
PRAWN[1718) This court accepts that the declared right is for all species (except geoduck), and thus it applies to prawn. I conclude that the plaintiffs’ priority for the commercial prawn fishery is low, for the reasons set out above.
(1719) Nonetheless, I conclude that DFO’s present management and regulatory systems with respect to prawn are justified, with the exception of the requirement one licence per boat, and vessel registration.
(1720) The plaintiffs have received, free of cost, several very expensive prawn licences through PICFI, since the declaration of 2009.
(1721) When the priority factors from Gladstone and the justification analysis from Sparrow are applied to this fishery, I conclude that mitigated access, that is, free PICFI access obtained through voluntary relinquishment of commercial licences, is not an infringement of the plaintiffs’ right to fish for and sell prawn.
(1722) The present allocations through PICFI and ATP are appropriate accommodations of the right and are not an infringement of the plaintiffs’ right to trade in prawn into the commercial marketplace.
(1723) DFO is justified in conducting appropriate testing through a demonstration fishery or other means, to determine if an earlier fishery in April is feasible, and if so, how that should be sampled and monitored. The Strategic Framework for Monitoring and Catch Reporting should be applied. This must all be done in consultation with the plaintiffs. If DFO determines that the VSM system is necessary for the plaintiffs’ small boat fleet when harvesting prawn, and if there is a disagreement on cost or cost sharing and whether it causes a barrier to the exercise of the right, this will have to be determined on specific facts.
(1732) DFO submits that, even if there were an infringement, it is justified on the basis of the precautionary approach which ensures conservation, given the early stage of this fishery.
(1733) I agree. Although Garson J. declared the infringements to apply to all species, this developing fishery was not ongoing at that time. I am unable to see that any rights are infringed in respect of gooseneck barnacles. The plaintiffs are not prevented from fishing for gooseneck barnacles. They have an exclusive fishery at present, so there is no question of an infringement of their priority, or of minimal impairment. Consultations are significant and ongoing. There are no impediments to their fishing plan. There are reviews ongoing in order to determine appropriate levels of harvest. Conservation and sustainability support a careful approach, and consultation and cooperation is good.
(1734) In the alternative, if there is an infringement, the cooperative and precautionary approach presently being used is justified on the basis of conservation and maintaining the sustainability of a new fishery.
(1752) Herring differs from some of the other fisheries in that there is no question that the plaintiffs’ involvement in that fishery has been of significant importance to their people and culture, both currently and ancestrally. Mention was made in the Jewitt journal of many huge tubs of herring spawn being collected and used for feasts. While there is no particular evidence of an ancestral commercial trade in herring that might translate to a modern right to a commercial fishery, I have concluded that it is not open to me, given the Court of Appeal’s order, to consider that aspect within a discussion of continuity. The priority of the plaintiffs’ interest in herring is easily asserted by them within this multi-species fishery.
(1753) However, given the lack of a herring fishery in the CDA for the years preceding this stage of the trial, there is not much information before the court. As I have said, the parties’ positions are speculative and hypothetical. I accept DFO’s position, and I do not understand the plaintiffs to disagree, that an analysis of justification for any ongoing infringements of the plaintiffs’ right to fish for and sell herring at this point is premature.
(1759) The plaintiffs have been successful in some parts of some of the declarations they seek, particularly parts of (a), (c), (f,) (h), and potentially (i), although this will require discussion with counsel. They have not been successful in obtaining relief under (b), (d), (e), (g), or (j).
(1760) I have concluded that I should interpret but not redefine the right declared by Garson J. The right continues to apply to “any species”. The plaintiffs have a right to fish and sell any species of fish, in a small scale multi-species fishery conducted from small boats, with wide community participation.
(1761) The plaintiffs in this stage of the trial sought a fishery that is not in line with my interpretation of Garson J.’s reasons, together with very large allocations. Their view of the fishery has expanded considerably from 2009, and they have emphasized that the plans they now present are appropriate accommodation only for the present. They expect to increase their participation in the fishery. They have presented fish plans requesting large allocations of fin fish from the entire WCVI catches. They have taken the position that the justification exercise should be focussed on why Canada has refused to implement their plans. I have found that that is not the appropriate approach to justification.
(1762) Even if I am wrong in that conclusion and instead decided to follow that path, the plans are not complete and there are fundamental aspects of them that I would find Canada justified in refusing to implement. Although it is not necessary to do so, given the conclusions I have reached, I have examined each of the plans from this perspective.
(1763) Canada seeks a further delineation of the right, a finding that certain fisheries are not infringed or have been adequately accommodated, or alternatively, that any infringements are justified. In the further alternative, Canada asks the court to precisely identify any unjustified infringement, declare the offending sections to be inapplicable to the plaintiffs by way of a constitutional exemption under s. 52(1) and suspend the declaration for two years.
(1764) This approach more closely aligns with the one I have followed in these reasons, as I have concentrated on whether the legislation, regulations, and policies that were declared by Madam Justice Garson to be prima facie infringements have ultimately been justified by Canada. The final delineation of the right remains to be articulated in accordance with the conclusion I have reached.
(1768) I have considered the various sections that are engaged in the infringement analysis and have determined that some aspects of the licencing regime that affect the plaintiffs’ multi-species small-boat right are unjustified infringements. I have set out which aspects of the legislative, regulatory and policy scheme are or are not justified for each fishery. I will require the assistance of counsel for a precise articulation of the applicability of each section, as counsel did not approach their arguments that way. I have also set out the principles governing allocations for each species, and have noted the species for which DFO must reassess its approach to allocations.
(1769) I have already alluded to the form of remedy sought by the plaintiffs. They say Canada has not justified its regime, and therefore it is inapplicable to them; they say they are thus entitled to a constitutional exemption from the entire fisheries management scheme. I have already said I do not view that as the appropriate approach for a civil claim, nor is it an acceptable path to reconciliation.
(1770) I refer again to the paragraph from Gladstone that was adopted in Lax Kw’alaams. The goal of the justification exercise is the reconciliation of aboriginal societies with the rest of Canadian society. In any event, the plaintiffs are not entitled to a declaration that they are exempted from the entire regime, as I have discussed in the results of my consideration of each fishery.
(1771) Nevertheless, in my view, the plaintiffs have obtained a large measure of the relief they sought before Garson J. That is, the prima facie infringements she found to exist within the legislative, regulatory and policy regime have in large part not been justified. Accommodations have been offered, some appropriate, some inadequate.
(1772) The plaintiffs have not been as successful in obtaining what I view as significantly expanded claims arising from the nature of the declarations they obtained in 2009.
(1780) Canada seeks a two-year suspension of any order. The plaintiffs suggest one year. Further discussion will have to take place in order to determine the form of order and appropriate timing, and what might be accomplished during such a period. One or two years of further negotiations without the framework of a clear and precise order will be no more successful than the previous years have been.