BC Court of Appeal rejects limitations placed on Aboriginal commercial fishing rights: Ahousaht Indian Band and Nation v. Canada, 2021 BCCA 155
This case concerns whether Canada had justified its infringement of the commercial fishing rights of the five Nuu-chah-nulth Nations of Ahousaht, Hesquiaht, Mowachaht/Muchalaht, Tla-o-qui-aht, and Ehattesaht/Chinehkint (collectively, the “Nations”).
The Nations’ commercial fishing rights had previously been declared eleven years earlier and the cumulative effect of Canada’s fishing regime was found to have infringed those rights (2009 BCSC 1494). That decision was largely upheld on appeal and on a reconsideration, with the Court of Appeal excluding geoduck from the commercial fishing rights (2011 BCCA 237 and 2013 BCCA 300). The Nations had been in negotiations with Canada over a number of years to implement their rights, but those negotiations were unsuccessful. As a result, the Nations had to return to Court to determine whether Canada had justified its infringement of the Nations’ rights. The trial judge found that some of Canada’s regulations were unjustifiable infringements, while others were not. Significantly, the trial judge further delineated the Nations’ rights, placing new limits on the rights.
The issues on appeal were summarized by the Court of Appeal as follows:
- Whether the trial judge erred in finding that Canada had met its duty to consult and negotiate with the Nations;
- Whether the trial judge erred in interpreting the declared right as “a non-exclusive, small scale, artisanal, local, multi-species fishery, to be conducted in their court defined area for fishing, which extends nine nautical miles offshore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation”;
- Whether the trial judge erred in further particularizing the infringements in relation to particular aspects of the regulatory regime;
- Whether the trial judge erred in the application of the justification analysis.
This case has important implications for how the justification analysis is to be applied when there is a declared Aboriginal right and the priority to be accorded to those rights. The main findings of the case are outlined below. Paragraph references are to the Court of Appeal decision.
2. Canada’s Duty to Consult and Negotiate
Despite Canada not providing its negotiators with a mandate to design a regulatory regime to accommodate the Nations’ declared rights, the Court of Appeal found that the trial judge did not err in finding that Canada had met its obligation to consult and negotiate in good faith with the Nations (para. 127). In the trial judge’s view, while there were problems with Canada’s mandate, those problems did not undermine the discussions (para. 125).
3. Interpreting the Declared Right
The first phase of the trial determined that the Nations held Aboriginal rights to fish for all species within their specified territory, and to sell fish (with the exception of geoduck). In the second phase of the trial, the parties disagreed on the question of the extent to which the trial judge was able to “interpret” the declared right. The intervenors – the Canadian Sablefish Association and the Pacific Prawn Fishermen’s Association – went so far in the Court below as to say that it was open for the court to revisit the question of whether the Nations’ rights extended to fishing for all species (para. 129).
The Nations argued on appeal that the trial judge’s re-interpretation of the declared right was improper and served to reduce the scope of the declared right. The Court of Appeal agreed finding that the trial judge “was required to assess the case on the basis of the plaintiffs’ established commercial fishing rights” (para. 148). The trial judge “was not entitled to impose new limits on those rights, nor could she expand them”, but “[s]he was, however, required to apply the declaration given in the first phase of the trial purposively, taking into account the reasons given by the original trial judge” (para. 148).
Specifically, the “limitation imposed by the judge in the second phase of the trial on the types of boats and the technology that the Nuu‑Chah‑Nulth were entitled to use in exercising their rights to fish were not appropriate” and did not “take into account the need to allow Aboriginal rights to evolve to meet modern conditions and requirements” (para. 149). As a result, the description of the declared right in the order was modified by the Court of Appeal to “[a] non-exclusive, multi-species, limited commercial fishery aimed at wide community participation, to be conducted in their court defined area for fishing, which extends nine nautical miles offshore” (para. 289).
4. Further Particularizing Infringements
The parties further disagreed on the extent to which the Court below was able to further consider what aspects of the regulatory regime infringed the Nations’ rights. The original finding in 2009 BCSC 1494 was that the cumulative effect of the regulatory regime infringed the Nations’ rights.
The Nations argued on appeal that the trial judge erred in “re-opening” the issue of infringement that had been fully dealt with in the first phase of the trial. The Court of Appeal disagreed, holding that “[i]f the judge on the second phase of the trial was to make useful declarations and grant specific remedies, it was necessary for her to conduct a more detailed analysis to determine which aspects of the regulatory regime contributed to the infringement of the plaintiffs’ rights” and to assess whether those infringements were justified (paras. 112, 163).
5. Application of the Justification Analysis
The Court of Appeal considered the application of the justification framework in R v. Gladstone,  2 S.C.R. 723 by the trial judge. While the trial judge approached the justification analysis “from a position that was not entirely in keeping with what was decided in the first phase of the trial and affirmed on appeal”, for the most part the Court of Appeal upheld the order of the trial judge (para. 167).
Focus of the Analysis is on the Regulatory Regime
The Court of Appeal decided that the trial judge was correct to determine that her task was to assess the regulatory regime that was in place against the Aboriginal rights, as opposed to determining whether Canada had justified its refusal to implement the fishing plans of the Nations with requested allocations (para. 173). However, the trial judge was not prevented from considering both the Nations’ fishing plans and Canada’s long-term offer, as “[t]hese proposals were important indications of what each side considered to represent an appropriate allocation of priority to the plaintiffs’ rights” and suggested potential solutions (para. 175). The Court of Appeal emphasized that it is not the task of the Court to “design a fishery” or play “the role of final offer arbitrator” (paras. 158 and 174).
Historical, Cultural and Economic Importance of a Particular Species is Relevant to the Justification Analysis
The Court of Appeal held that “while the right extends to all species of fish, its economic and cultural importance may not be uniform across all species.” The justification analysis may, therefore, “differ” depending on the historical, cultural and economic importance of a particular fishery to the First Nation (para. 170).
Priority is Always High for Aboriginal Rights
The Court of Appeal found that the trial judge erred in her approach to priority where she noted that where the evidence of historical exploitation was limited – such as for crab – “the plaintiffs’ priority in respect of this commercial fishery is somewhat lower” (para. 247). The Court of Appeal emphasized that “First Nations have a prima facie entitlement to have their rights take priority over rights that are not constitutionally protected” (para. 251). The Court went on to note that “priority of Aboriginal rights, in other words, is always high, but it is not absolute” (para. 251, emphasis added).
While noting that the historical and cultural connection of a First Nation to a particular species is a factor to be considered in the justification analysis, the Court went on to find that “it must be recognized that the plaintiffs’ rights are to fish for all species in their territories” and that entitles them to a degree of priority in the exploitation of fisheries resources (para. 252). The Court of Appeal noted that this priority extends to species that may become more important to the Nations due to their abundance in their territory at any particular time (paras. 227, 266).
6. Modifications to the Trial Judge’s Order
The Court of Appeal modified the trial judge’s order in four respects. First, the declaration in relation to the scope of the right was amended as set out above. Second, the licences held by the Ahousaht Nation were found not to give it a right to harvest crab in quantities commensurate with the availability of the species in its fishing territory and, therefore, the order was amended to reflect an unjustified infringement of the rights of the Ahousaht Nation to fish for crab. Third, the trial judge failed to accord proper priority to Mowachaht/Muchalaht and the Ehattesaht rights to undertake commercial prawn fishing in their territory and, therefore, the order was amended to reflect an unjustified infringement of the rights of the Mowachaht/Muchalaht and the Ehattesaht to fish for prawn. Finally, the unjustified infringement regarding the exclusion of the Nations’ vessels from the one-to-five-mile corridor was modified to apply to the entirety of the Nations’ rights-based fishing fleet, and not just to their “small, low-cost boats” (paras. 287-299).
7. The Role of the Nations in Fisheries Management
While noting that it was not an issue on the appeal, the Court of Appeal flagged that the decision in the court below should “not be taken to mean that the individual Nuu‑Chah‑Nulth First Nations (or, perhaps, the Nuu‑Chah‑Nulth collective) have no role in the management of their portion of the fishery” (para. 187). Rather, given the collective aspect of rights and the need to allocate those rights among individuals, the Court of Appeal recognized the practical need for a role for the Nations in the management of the Aboriginal rights fishery (para. 186).
8. Mandatory Orders Remain Available
The Court of Appeal stated that declarations setting out the deficiencies in the fishery scheme should be sufficient to ensure that Canada will remedy the defects. However, the Court of Appeal emphasized that mandatory and compensatory orders remain available if Canada does not act diligently to remedy the problems (para. 299).
This case provides important guidance on the application of the justification analysis to established Aboriginal rights and on the approach to accommodating Aboriginal rights. The Court of Appeal reaffirmed the priority to be accorded to these rights and firmly rejected a frozen rights approach, emphasizing the ability of the rights to evolve to accommodate new technology and species.
However, the case also highlights the difficulty that First Nations face in obtaining recognition and enforcement of their rights, even in the face of declarations by the courts. While the Court noted that the Nations attempt to deal with all deficiencies in the regulatory regime in one claim was “unwieldy”, most Nations do not have the resources to bring multiple narrowly focused claims challenging Canada’s regulatory regime. Further, this case demonstrated the difficulties that can arise in bifurcating claims. The extent to which the decision paves the way for negotiations and accommodation of the Nations’ rights is yet to be seen. In particular, despite finding that Canada did not provide its negotiators with a mandate to design a regulatory regime to accommodate the Nations’ declared rights, the Court of Appeal missed an important opportunity to ensure that the Crown was held to a reasonable accommodation standard. Still, the Court of Appeal emphasized that the parties should be in a position to consult on allocations and reach agreement over the allocation process, and that mandatory orders are available if diligent action is not taken by Canada to remedy the deficiencies in its regime.