This case involved a claim by five Nuu-chah-nulth ("NCN") 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, 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 nautical 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. Summaries of the different parts of the trial decision are set out below. Numeric references are to paragraph numbers.
The historical evidence, as summarized by the trial court was as follows:
I have concluded from the evidence the following:
1. the Nuu-chah-nulth had longstanding trade networks both in a north/south direction along the coast and overland via the Tahsis and other trade routes;
2. trade relations existed with “strangers” who came to pay tribute to powerful chiefs but in doing so received reciprocal gifts in return;
3. marriages were arranged to facilitate trade with extended kin, kin having a broad definition;
4. dentalia [shells] were found in exotic places (that is, far from the place of origin) by archaeologists, indicating their use as a trade item;
5. iron was noted by the earliest of the explorers to be traded up and down the coast, indicating a strong pre-contact trade network;
6. the Nuu-chah-nulth were not equally endowed with the same resources and thus the exchange of foodstuffs was necessary;
7. the systems of payment of tribute, gift giving, reciprocal exchange and trade overlapped with each other and existed within a polite form of respect for powerful chiefs;
8. the Nuu-chah-nulth did not trade for the purposes of accumulating wealth (I heard no such evidence);
9. the Nuu-chah-nulth had the ability to dry, preserve, and trade vast quantities of fish and marine products. (For a more detailed discussion, see the section above titled “Dependence on Fish”); and
10. the frequency and amount of trade, including trade in fish and marine products, suggest that such trade was a practice integral to Nuu-chah-nulth society.
I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources. I conclude that that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections. I do not exclude from this definition reciprocal gift giving or barter. [Para 281-2]
Aborignal Rights,Integrality of Ancestral Practices to Distinctive Cultures
The trial court summarized it findings on parts 2,4 of the Van der Peet test as follows:
The second and third parts of the Van der Peet analysis direct the Court to consider the existence of the ancestral practices supporting the claimed rights to both harvest fish and sell that fish, and whether those rights were integral to the distinctive cultures of pre-contact Nuu-chah-nulth society. At contact, the Nuu-chah-nulth were overwhelmingly a fishing people. They depended almost entirely on their harvest of the resources of the ocean and rivers to sustain themselves. The Nuu-chah-nulth traded these resources with other aboriginal groups both within a loosely defined kinship network and outside that network. After contact with Europeans, that well-established trading custom was expanded to adapt to the influx of European explorers and fur traders. Having concluded that the various Nuu-chah-nulth tribes shared a language and culture, I have, where appropriate, made the necessary inferences from the evidence that all the Nuu-chah-nulth peoples engaged in trade with each other even though the evidence of indigenous trade cannot on the basis of the direct observations made at contact be attributed to each of the plaintiffs. In my view, there is sufficient evidence of indigenous trade up and down the WCVI for me to conclude that each of the plaintiffs was engaged in that indigenous trade.
I am also satisfied that fishing and trading in fisheries resources were practices that were integral to the distinctive cultures of pre-contact Nuu-chah-nulth society. I have concluded that each of the plaintiffs has demonstrated sufficient connection to the pre-contact society from whose aboriginal practices they claim to have derived their aboriginal rights. Similarly, each of the plaintiffs has demonstrated sufficient geographic connection between their claimed fishing territories and those of their ancestors from whom they claim to derive their aboriginal rights. Fishing was the predominant feature of the Nuu-chah-nulth society and I have concluded that indigenous trade in fish was also an integral feature of Nuu-chah-nulth society. As distinct from the conclusion reached by Satanove J. in Lax Kw’alaams Indian Band that any indigenous trade in fish by the plaintiff band was infrequent or opportunistic, I conclude these plaintiffs have proven trade in fish to be a prominent feature of their society.
The fourth part of the Van der Peet analysis requires the Court to consider whether reasonable continuity exists between the pre-contact practice and the contemporary claim. I have considered the evidence of continuity of fishing as it evolved into commercial fishing. The plaintiffs have proven that Nuu-chah-nulth people have continued until recent decades to fish. That fishing activity has at times been done as wage work, and at times on a commercial basis. The evolution of the modern fishery is discussed in more detail in the infringement section of this judgment. Suffice it to say that there is ample evidence from which to conclude that the plaintiffs have proven reasonable continuity between the pre-contact practice of fishing and trading that fish, and their contemporary claim.
With respect characterization (the first part of the Vanderpeet test) the trial court acknowledged that it must incorporate some contours or limitations reflective of aboriginal practice at contact (444), In doing so it found that:
Ancestral practices translate into a broader modern entitlement than “exchange for money or other goods” (defined as small scale sale outside of the commercial market) (486);
Harvest and sale of fish to “sustain the community is not a viable characterization, as it incorporates the notion of a minimum guarantee (482);
Sale is not for the purpose of accumulating wealth (para 486);
The right does not extend to a modern industrial fishery or to unrestricted commercial sale (para 486);
The right applies to any species of fish (para 489);
The right should ultimatlely be characterized as simply “the right to fish and sell fish” with further limitations on scope to be done within the justification analysis(487).
Given its findings on aboriginal fishing rights, the trial court found it unnecessary to make a decision on title.
After a lengthy review of the evidence, the trial court concluded the following with respect to infringement:
I pause here to acknowledge that to the extent that some aboriginal fishers have been able to continue in the fishing industry with some economic success, it could be argued that the regulatory regime is not the cause of the lack of aboriginal participation. Undoubtedly, factors that I have described above, including the collapse of the salmon stock, changes in equipment, the reduction in the price of fish, the closure of local fish buying businesses, environmental factors, international treaties, and conservation imperatives have all contributed to drive the plaintiffs out of the fishing industry.
The licensing regime is not entirely responsible for the plaintiffs’ non-participation in the fishery. I have mentioned several times, however, the evidence that there are now only three or four full-time Nuu-chah-nulth fishers compared to 70 or 80 who fished in 1992. I concluded that as late as the early 1990s and possibly up until the collapse of the salmon fishery in 1995, there remained a somewhat active Nuu-chah-nulth commercial fishing fleet. The point I make is that if the fishery had remained as healthy and abundant as in previous decades, the Nuu-chah-nulth may have been able to compete, even within the existing licence regime. Put another way, there are other causes besides the impugned regulatory regime for the lack of Nuu-chah-nulth participation in the WCVI fishery. In my view, however, it is sufficient for the present analysis that the plaintiffs have proven that the regulatory regime as it currently exists prevents them from exercising their aboriginal rights by their preferred means through the imposition of unreasonable limitations that create undue hardship for them. That is not altered by the fact that the regulatory regime has evolved over time in response to such factors as changes in the fishery, conservation requirements and advances in scientific knowledge.
It is indisputable that the plaintiffs cannot fish and sell their fish as they previously did, in part, because of Canada’s regulatory regime. It is impossible for the plaintiffs to pay the large amounts the market sets for licences, and they are simply unable to compete in an economically sustainable way in the non-aboriginal fishery under the present regulatory regime. I am satisfied of that evidence.
Canada’s stated policy of encouraging economic opportunity in the fisheries for First Nations is constrained by its view that any such commercial fishing opportunities must not be at the expense of non-aboriginal fishers.
The plaintiffs assert in this lawsuit an aboriginal right to sell their fish commercially. Although Canada has many programs designed to enhance commercial fishing opportunities for aboriginal fishers, fundamentally Canada does not recognize the right of those fishers to fish and to sell their fish commercially as an aboriginal right. Canada argues that the plaintiffs are the beneficiaries of these special programs that protect and enhance their participation in the commercial fishery. However, I am satisfied that these programs have been largely ineffective in assuring the plaintiffs’ reasonable participation in accordance with their preferred means in the commercial fishery. Indeed, those programs have not succeeded in maintaining even a modest native commercial fishery.
I conclude that the plaintiffs have proved that Canada’s fisheries regulatory regime prima facie infringes their aboriginal rights to fish and to sell fish by their preferred means, both legislatively and operationally. I exclude the clam fishery and the FSC fishery from this conclusion. [786-790]
With respect to clams, the trial court concluded that there had been no infringement, despite the fact that there had been no formal recognition by DFO of an aboriginal right to harvest and sell clams [756, 804].
Food Social and Ceremonial Fishery ("FSC")
With respect to FSC claims, the tiral court found that "DFO" policies with respect to the FSC fishery cumulatively guard against unstructured discretion and provide appropriate guidance for decision makers" . Based, in part, upon evidence that current allocations were not being caught, the court found that there had been no infringement of FSC rights.
With respect to justification, the tiral court stated that Gladstone is clear that in order to satisfy the doctrine of priority in the context of an aboriginal right without internal limitation, the Government must take into account the fact that the aboriginal group has a constitutionally protected right (862, 874). Given the Vanderpite decision, it was not unreasonable for the Government to have assumed that the NCN did not have a constitutionally protected right to sell fish. Also, at trial the Plaintiffs’ lead no evidence re the level of participation in commercial fishery that would be sufficient (871). As a result of this, Canada did not have factual context in which to demonstrate minimal impairment (891, 843-4, 848). Accordingly, it would be unfair to hold that Canada has failed to justify its prima facie infringement without first providing the parties an opportunity to consult and negotiate based upon the court’s findings of fact. A period of two years was granted for the parties to consult and attempt to negotiate an appropriate level of accommodation of the Plaintiffs’ constitutional right to fish and sell fish.
To help guide such negotiations and for the purpose of any further legal proceeding in the event that negotiations fail, the court provided the following list of legislative objectives and societal interests that the Government may take into account when regulating the fishery (881-3):
a. conservation and sustainability of fisheries resources;
b. protection of endangered species;
c. establishing priority for aboriginal FSC fisheries after conservation;
d. health and safety of the fishers and consumers;
e. adherence to international treaties;
f. facilitation of aboriginal participation in the fisheries;
g. pursuit of economic and regional fairness including the participation in the fisheries by other aboriginal groups and recognition of the historic reliance upon and participation in the fisheries by non-aboriginal groups;
h. achievement of the full economic and social potential of fisheries resources; and
i. safe and accessible waterway.
The trial court also made some other additional findings including:
Depending on health and abundance of fish stocks, Canada may be able to justify considerable constraint (875);
Consultations by DFO have been comprehensive and thorough. (877);
Since Fisheries management is extraordinarily complex, Canada’s approach to management should be afforded considerable deference (879).
British Columbia Court of Appeal Decision
Upon appeal, the majority decision written by Hall, J.A. substantially upheld the decision of the trial court, except with respect to the geoduck fishery. In this regard, the appeal court held that since the geoduck fishery was high tech and of very recent origin, "[t]here is simply no adequate basis in the evidence to support an ancestral practice that would translate into any modern right to participate in harvesting and selling this marine food resource"
In upholding the decision of the trial judge, the majority appeal court decision rejected arguments suggesting that the trial court erred in failing to consider infringement on a species by species basis. It stated that "at the presently incomplete stage of this litigation, to seek a greater degree of specificity is neither possible nor practicle". In doing so, it distinquished the case of Lax Kw’alaams as a case where the "specific practise" was "found to be tied to ‘one species of fish and one product’". However, the appeal court did say that the issue of species specificity will be very much front and centre when and if the case proceed to consider the issues of justification and accomodation.
The minority decision of Chiasson J.A. agreed with the conclusions of the majority decision except with respect to how to define the scope of the aboriginal right to sell fish. Mr. Justice Chaiasson, would have limited that right to "sell fish for the purpose of attaining the equivelent to a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities."
Editor’s Note: On 29 March 2012 the Supreme Court of Canada remanded the case back to the British Columbia Court of Appeal to be decided in accordance with the decsion of the SCC in Lax Kw’alaams Indian Band v. Canada (A.G.), . See: 2012 CanLII 16558 (SCC).