Ahousaht Indian Band v. Canada (Attorney General), 2021 BCCA 155

In on

This is a case that was commenced in 2003 and since then has undergone a 100 plus day trial, at least three appeals to the B.C.C.A. and three appeals to the SCC. Earlier decisions are digested on this site. A condensed summary of the April 2021 decision as prepared by the B.C. Court of appeal is set out below.

The plaintiffs are First Nations on the West Coast of Vancouver Island. In longstanding litigation, they sought recognition of their Aboriginal rights to fish. At the first phase of the trial, the B.C. Supreme court justice concluded that each of the plaintiffs had an aboriginal right to fish for all species within its specified territory, and to sell fish. She also found that the cumulative effect of the federal regulatory system was to infringe the plaintiffs’ rights, though she did not particularize the parts of the system that were infringing. She adjourned the trial to allow the parties to consult and to attempt to negotiate a suitable fishery policy, failing which they could return to the court for a ruling on whether the infringements were justified. The orders were confirmed on appeal to this Court, except that geoduck was excluded from the “all species” declaration. The Supreme Court of Canada denied an application for leave to appeal.

The parties were unsuccessful in their negotiations. One factor contributing to the lack of success was Canada’s failure to provide its negotiators with authority to negotiate a regulatory scheme outside of the existing legislative and policy structure.

The parties returned to court for a determination of whether Canada could justify the infringement of the plaintiffs’ rights. As well, the plaintiffs sought a declaration that Canada had failed in its duty to consult and negotiate with them. The judge who conducted the first phase of the trial was no longer on the Supreme Court, and the second phase of the trial proceeded before a different judge.

The new judge expressed some frustration with the declaration that had been made in the first phase of the trial. She “interpreted” the declaration, restricting it, to some extent in the process. Ultimately, she found certain aspects of the regulatory regime to be unjustified infringements of the plaintiffs’ rights, other parts to be justified infringements, and still others not to be infringements at all. The plaintiffs appealed. On appeal, Held: Appeal allowed in part.

The judge did not make any reversible error in refusing to declare that Canada failed in its duty to consult and negotiate.

The judge was entitled to interpret the order from the first phase of the trial, as necessary, but was not entitled to reduce the scope of the right declared. She erred by limiting the right to vessels of a certain size and fishing capacity. She also added unnecessary qualifiers to the declaration that did not add to its precision or clarity.

The court’s function in the second phase of the trial was to determine what parts of the regulatory scheme contributed to the infringement of the plaintiffs’ rights, and to assess whether those infringements were justified. The declaration on the first phase of the trial was simply that the cumulative effect of the regulatory scheme infringed the plaintiffs’ rights. It was not a declaration that every aspect of the scheme was infringing.

The court was not, on the second phase of the trial, entitled to re-characterize the Aboriginal right or re-analyze issues of continuity. It was, however, able to consider the regulatory scheme on a species-by-species basis, and to consider, in the context of Gladstone justification, a variety of issues, including the historical cultural and economic importance of a particular fishery to the plaintiffs.

The judge erred in certain respects in her order, primarily by giving too little priority to the plaintiffs’ Aboriginal rights in respect of fisheries in which they had a limited historical connection. The trial judge was incorrect in saying that the limited historical connection of a Nation to a particular fishery meant that it had a “low priority” in respect of that fishery.

A number of issues could not feasibly be resolved by the court on the trial, and the judge did not err by requiring certain issues (for example catch monitoring) to be addressed by the parties in accordance with her reasons. In respect of other issues, such as the quota allocations for specific species, the judge rightly found the record to be inadequate to make a precise order. The parties must resolve those matters, or bring them back to the court in more manageable litigation targeted at specific regulatory provisions.

The Court modified certain specific provisions of the order in accordance with its reasons.