B.C. Supreme Court Affirms Aboriginal Rights to Fish and Sell Fish on West Coast of Vancouver Island and Orders Consultation
November 3, 2009
On November 3, 2009, the Supreme Court of British Columbia affirmed that the Ehattesaht, Mowachaht/Muchalaht, Hesquiaht, Ahousaht, and Tla-o-qui-aht First Nations (collectively, "Nuu-chah-nulth" or "Plaintiffs"), possess aboriginal rights to fish and to sell fish.1 The cumulative effect of Canada’s fisheries regime under the Fisheries Act, and its related regulations and policies, infringe the Nuu-chah-nulth’s aboriginal fishing rights and granted the parties two years to consult and negotiate a regulatory regime that balances their fishing rights with the rights and interests of other Canadians. The Court also expressed doubt that the Plaintiffs had a valid claim of aboriginal title to the submerged lands where they asserted their aboriginal right to commercial fishing.
The Nuu-chah-nulth sought declarations of both aboriginal rights and title on the basis that from prior to European contact to the present, they owned, used and occupied territories within an area on the west coast of Vancouver Island and extending 100 nautical miles into the Pacific Ocean. They claimed that prior to and at contact, they were a fishing people whose way of life was characterized by trade, including trade in fish and that these pre-contact practices translate into modern aboriginal rights, including the right to harvest all species of fisheries resources from within their territories for food, social, ceremonial, trade and commercial purposes, and to sell and trade those resources on a commercial scale. Further, they claimed aboriginal title to the fishing areas within their respective territories comprising the foreshore areas and bodies of water below the low water mark and extending 100 nautical miles into the Pacific Ocean.
The Court considered four issues:
- whether the Plaintiffs have an aboriginal right to fish and to sell fish, including whether they established that at 1774, the date of first contact with Europeans, they fished and traded fish;
- whether the Plaintiffs established aboriginal title to their fishing territories and that they hold fishing rights as an economic component of such title;
- if the Nuu-chah-nulth have proven aboriginal fishing rights, whether Canada’s fisheries regime infringes those rights; and
- if the Nuu-chah-nulth’s rights have been infringed, whether Canada can justify such infringement.
Evidence of Aboriginal Rights
In reviewing the historical evidence, Garson J. determined that the Nuu-chah-nulth exhibited many of the defining features of "trade".2 The Court noted that the explorer records were remarkably consistent in demonstrating a persistent effort by all Nuu-chah-nulth to trade with Europeans they encountered.3 Canada argued that historic warfare among the Nuu-chah-nulth precluded trade. The Court disagreed, holding that examples of warfare illustrated that these groups were not equally endowed with marine resources — an important trade motivation.4
Based on the historical connections to their claimed territories, the Court concluded that four of the five Plaintiffs were the proper claimant groups. One Plaintiff, the Ahousaht, acquired some of its claimed territory via annihilation of the Otsosaht. Although there was no jurisprudence on point, the Court decided that the Ahousaht’s tradition of forcibly acquiring territory was sufficient to transfer the rights and privileges of the vanquished to the conquering group.5
The Court held that the Plaintiffs’ rights claims need not be species-specific because the Nuu-chah-nulth historically followed and continue to follow a "seasonal round which corresponded to the seasonal availability of various species of fish".6 To require the Plaintiffs to prove the right in respect of each species would be inconsistent with the evidence regarding their way of life.
The Court found that the latitudinal boundaries of each Plaintiff’s claim was sufficiently proved, but that the longitudinal, or seaward, dimensions were not.7 Garson J. decided that Nuu-chah-nulth fishing territories extended at least nine miles offshore8, but that there was insufficient evidence to suggest that each tribe fished 100 nautical miles offshore as claimed.9
The Court characterised the modern right as simply the right to fish and to sell fish10 (in the commercial marketplace).11 Garson J. declined to limit the scale of this right, except to state that it does not extend to a modern industrial fishery or to unrestricted rights of commercial sale. Accordingly, the Court held that the Plaintiffs possess the aboriginal right to fish for any species within the environs of their territories and to sell that fish.12
Aboriginal Title Claim
The Nuu-chah-nulth also sought a declaration of aboriginal title over the submerged lands throughout each of their fishing territories, limited to the economic fishery component of aboriginal title. The Court found that because Canada’s fishery regime infringed the Nuu-chah-nulth’s rights, it was unnecessary to engage in an analysis of whether title existed over the submerged lands giving rise to a ‘parasitic’ aboriginal fishing right to them. The Court nevertheless expressed "some doubt" that a claim of aboriginal title to submerged land is legally tenable.13
Do Canada’s Fisheries Laws Infringe the Nuu-chah-nulth’s Aboriginal Rights?
Once the Court established the Nuu-chah-nulth’s right to fish and to sell fish, it next examined whether Canada’s fisheries legislation, regulations or policies infringed those rights. Rather than analyzing each component of the regulatory scheme in accordance with the Sparrow test, the Court focused on the cumulative effect of the scheme on the exercise of aboriginal rights.14
Canada argued that there was no negative impact and thus no possibility of infringement on the Nuu-chah-nulth’s aboriginal right to commercial fishing based on the available statistics which showed that their participation in the commercial fishery on a proportional basis was equal to or greater than their historical participation.15 The Court placed more weight on the anecdotal evidence put forward by the Plaintiffs regarding the substantial decline in actual aboriginal participation in commercial fisheries.16 Canada also argued that the cumulative effect of its fisheries policies had actually accrued benefit to the Nuu-chah-nulth and that the decline in the aboriginal commercial fishery was because of other factors.17 The Court stated:
Canada has numerous policies designed to enhance and support the aboriginal commercial fishery, but since Canada does not recognize an aboriginal right to fish commercially, any efforts to enhance the aboriginal fishery are only offered in a way that does not detrimentally impact the non-aboriginal commercial fishery.18
The Court concluded that these policies and programs failed to significantly support the Plaintiffs’ participation in the commercial fishery by focusing too much on integrated fishing.19
Garson J. also found that the Fisheries Act and regulations thereunder imparted on the Minister unstructured discretion that risked infringing the Nuu-chah-nulth’s aboriginal rights, and that the DFO policies and programs did not recognize aboriginal fishing outside of fishing for food, social or ceremonial ("FSC") purposes.20
The Nuu-chah-nulth adduced evidence showing that their preferred means of commercial fishing was community based, localized fisheries involving wide community participation and using small low cost boats.21 The DFO’s adherence to integrated fishing prevented it from implementing measures to facilitate fishing opportunities for the Nuu-chah-nulth that provide for the community based multi-species commercial fishery preferred by them.22 The fishery regime currently in place also created undue hardships for the Nuu-chah-nulth as the financial cost of licences thereunder meant that most commercial fishing licences were out of their reach.
The Court found that the Nuu-chah-nulth had proven that Canada’s fisheries regulatory regime infringed their aboriginal right to a commercial fishery since, Canada did not recognize the right of aboriginal fishers to sell their fish commercially as an aboriginal right. Importantly, Canada’s administration of and regulatory scheme for the clam fishery and the FSC fishery were found not to infringe on the Plaintiffs aboriginal right to commercial fishing.
Is the Infringement of the Nuu-chah-nulth’s Aboriginal Rights Justified?
Having found that the Nuu-chah-nulth’s right to a commercial fishery had been infringed, the Court then considered whether such infringement was justified.
In its analysis, the Court held that in order to justify infringing aboriginal rights in its regulation of the commercial fishery, Canada must, at minimum, have turned its mind to the existence of the aboriginal rights at issue. While Canada had attempted to balance generalized aboriginal interests in participating in the commercial fishery, Canada did not specifically recognize the aboriginal rights of the Nuu-chah-nulth. Therefore, the Court held that Canada was not in a position to justify the infringements of that right.
Despite finding that Canada was not in a position to justify its infringement, the Court recognized the delicate balancing act Canada must perform in its attempt to manage fairly the fisheries, and accorded Canada’s approach to fisheries management considerable deference. Further, the Court found that, until the release of its reasons, it was not unreasonable, in light of prevailing case authorities, for Canada to proceed on the basis that the Nuu-chah-nulth did not have the aboriginal fishing rights the Court found them to possess.Therefore, the Court found that it would be unfair to hold that Canada had failed to justify its infringement without first providing the parties the opportunity to consult or negotiate based upon the finding of aboriginal rights by the court. The Court found this consultation and negotiation necessary in order to establish the manner in which the Nuu-chah-nulth’s rights can be exercised and accommodated without jeopardizing Canada’s numerous legislative objectives and interests. In the event of unsuccessful negotiations, Canada would be afforded the opportunity to adduce further evidence relevant to a more focussed justification defence. Consequently, although the Nuu-chah-nulth were entitled to a declaration of the existence of their aboriginal rights to fish and to sell fish, they were not entitled to a declaration of unjustified infringement.
The Court’s decision in Ahousaht is useful for its articulation of the balancing process which the federal government (the Crown generally) must engage in when considering aboriginal rights and other valid objectives in respect of the fisheries and in requiring consideration of conservation of the fisheries, obligations under international treaties and provincial interests. The Court appears to be showing deference to the Crown’s decision-making authority, but insisting that the Crown be express in its reasoning, balancing of interests and justification, when decisions flowing from such authority may adversely affect aboriginal rights.
The Court’s focus on the lack of structured discretion held by the Minister in this case is also notable, given the Supreme Court of Canada’s (among other courts) direction to the Crown generally for many years to amend their statutes and regulations where Crown decision-makers are holding unstructured discretionary authority in areas which may affect aboriginal rights and interests (see R. v. Adams,  3 S.C.R. 101, for example). Ahousaht suggests that had the Minister’s authority been more structured in this respect (i.e. express evidence showing that the rights and interests of aboriginal peoples had been considered), then the outcome may have been different.
Also noteworthy from this decision is the Court’s statement expressing doubt regarding the legal basis for a claim of aboriginal title to submerged land, although not surprising given the nature of the test for aboriginal title which includes exclusive use and the intention and capacity to exclude others.
1 Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494.
2 Ibid., paras. 87, 88.
3 Ibid., para. 266.
4 Ibid., para. 234.
5 Ibid., para. 352.
6 Ibid., para. 383.
7 Ibid., para. 396.
8 Ibid., para. 411.
9 Ibid., para. 409.
10 Ibid., para. 486.
11 Ibid., para. 489.
12 Ibid., para. 486.
13 Ibid., para. 489.
14 Ibid., para. 502.
15 Ibid., para. 588.
16 Ibid., para. 680.
17 Ibid., para. 687.
18 Ibid., para. 697.
19 Ibid., para. 699.
20 Ibid., para. 758.
21 Ibid., para. 769.