Aboriginal Rights/Defences - Case Summaries
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Justification Analysis on 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
Ahousaht Indian Band and Nation v. Canada (Attorney General) , 2018 BCSC 218
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.
[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.
Offences - jigging salmon/fishing in a closed area - stay of proceedings for failing to consult prior to commencing enforcement proceeding
Aboriginal Rights/Defences - What principles of interpretation apply to Aboriginal Fisheries Strategy ("AFS") Agreements - Does an annual AFS fisheries agreement constitute justification for infringement - duty to consult with respect to enforcement actions.
R v. Martin, 2016 NSPC 14
The summary as included in the judgement is as follows:
Beginning in 1994 and in each ensuing year the federal Department of Fisheries and Oceans entered into Agreements with the Waycobah First Nation concerning, among other things, a food, social and ceremonial fishing allocation to members of that aboriginal community. These Agreements emanated from an Aboriginal Fishing Strategy created in 1993 by DFO in response to the Supreme Court of Canada decision in R. v. Sparrow.
Pursuant to the terms of the 2007-08 Agreement members of the Waycobah Band were permitted a certain number of salmon. Certain rivers were open to the FSC fishery. Certain fishing methods were permitted. An Aboriginal Communal Fishing Licence was issued, according to the terms of the Agreement.
Salmon stocks in Middle River were below spawning requirements and conservation measures were needed. A limited recreational fishery was in place there for “hook and release” only.
On October 10, 2007 the Defendants, members of Waycobah First Nation, jigged salmon from Middle River, in apparent contravention of the terms of the Licence and Agreement. They were charged with offences under the Fisheries Act.
At trial the Crown acknowledged that the Licence, by restricting aboriginal fishing in Middle River, constituted a prime facie infringement of the Defendants’ aboriginal right to fish for food in that river.
Were the individual Defendants bound, and were the actions of the Defendants encompassed by the terms of the subject Agreement and Licence?
What principles of interpretation ought to apply to modern-day agreements between governmental and aboriginal agencies, such as the subject AFS Agreement?
Where such an Agreement has been reached, does the Agreement itself constitute “justification” for the infringement, according to the Sparrow paradigm? Is the Crown never the less required to justify any infringement posed by the Licence in accordance with the criteria set out in R. v. Sparrow?
If the Crown is so required, has it justified the infringement by producing evidence of sufficient consultation and honourable conduct throughout the negotiations? In particular, did DFO give undue consideration to the interests of recreational fishers, and did DFO mislead Waycobah by employing certain terminology in the written record of negotiations?
What is the nature of the infringement of the aboriginal fishing right posed by the subject Licence? How does this inform the nature of consultations and the degree of formality?
Having regard to a 1993 DFO policy statement concerning the Aboriginal Fishing Strategy, did the Crown fulfill a particular duty to consult with Waycobah about any “enforcement action” which might be taken during the currency of the Agreement? How does this policy statement affect the charging discretion of the Fisheries Officers who apprehended the Defendants? How does the “honour of the Crown” doctrine apply to the mutual performance of the parties’ obligations under the subject Agreement.
Usual principles of construction and contract law should apply to a modern-day agreement between government and an aboriginal entity. Viewed through this lens, the Agreement binds the Defendants and applies to their actions on the date and place in question. It was validly executed by the Chief. There is no ambiguity in the terms of Agreement or the ensuing Licence. The Defendants possessed no residual right to fish. DFO at no time represented that it would not lay charges for breach of terms.
In any case where an agreement such as this has been achieved, whereby a limitation of an aboriginal right is effected, the Crown is not required to prove justification in accordance with the usual standards and criteria in Sparrow. The infringement of the right is presumptively justified by the agreement. There is, however, an enhanced duty of good faith upon the Crown (DFO) in its negotiation of an agreement which limits an aboriginal right. The presumption of justification may therefore be rebutted if the aboriginal Defendant proves that the Crown acted in bad faith in the negotiation of terms. Here the evidence discloses no such breach, nor dishonourable dealings.
In the alternative, if it is necessary to prove justification according to the Sparrow paradigm, the Crown has done so. It consulted sufficiently and behaved honourably in all dealings leading up to the signing of the Agreement
A 1993 DFO Policy statement, pertaining to the entire Aboriginal Fisheries Strategy program, includes an undertaking by DFO to consult with the aboriginal authority (Waycobah) prior to taking enforcement action. This representation, which concerns implementation of AFS Agreements, and supports the co-management objectives of the AFS program, applies to the subject Agreement. Crown did not prove that such consultation was undertaken. While DFO was not precluded from laying charges it was honour-bound to engage in a bona fide consultation before doing so. The apprehension of the Defendants and the seizure of their gear had to be undertake without delay. The Defendants were not charged until months later; some form of enforcement consultation should have been undertaken in the interim.
There was a flagrant breach of the terms of the Licence. The Defendants have no substantive defence. However the failure to consult about enforcement is sufficiently serious to warrant a stay of proceedings.
This is a fairly bold decision that has created new law with respect to both the test for determining if an AFS fishing agreement constitutes justification for an infringement and with respect to the consequences of failing to consult with respect to enforcement actions. It contains some interesting discussions of the legal nature of AFS fishing agreements and offers some suggestions on what would be considered adequate consultation in certain circumstances.
It is currently under appeal.
Aboriginal Rights and Defences - Applications to Intervene
Ahousaht Indian Band and Nation v. Canada (Attorney General, 2015 BCSC 2166
This is a aboriginal fishing rights case where the justification stage of the proceeding was delayed until after the parties had had an opportunity to consult and negotiate accommodation of a declared right to fish any species within their fishing territories (other than for geoduck clams later excluded by the Court of Appeal).
Prior to completion of the justification hearing the following parties groups of parties applied for intervenor status, including the right to lead evidence:
1) The Pacific Prawn Fishermen's Association ("PPFA"):
2) The Canadian Sablefish Association and Christopher Acheson ("CSA");and
3) The B.C. Seafood Alliance and B.C. Wildlife Federation ("BCSA/BCWF").
After an extensive review of the history of the proceedings, arguments of the parties and case law, the court granted all the parties intervenor status with only limited rights to lead evidence.
The court's reasons for granting intervenor status included the following:
1) In Lax Kw'alaams, the court made it clear that the process must be flexible and fair to all the stakeholders;
2) "While a licence is not a right, there is a legitimate expectation of some continuity in the industry, and thus members of the fish communities invest considerable sums into the continuation of their livelihoods, which includes the management of the fishery";
3) Interventions are permitted in some circumstances even where an applicant has only an indirect interest;
4) This case legitimately engages the interests of the applicants and there is a potential for the applicants to demonstrate that they bring a unique perspective to the litigation that may be of assistance to the court; and
5) The court of appeal's deferral of the issues of further delineation of the right and species specificity left the door open to the participation of intervenor s such as the applicants.
With respect to evidence and adding to the record, the court made a general ruling that "the participation of the intervenors in the adding to the record must be circumscribed by the issues that are withing the scope of the litigation as defined in the pleadings, that may assist in its resolution, will contribute to a process that is fair to all stakeholders but will not prejudice the conduct of the case by the parties. In particular, some of the evidence allowed included:
1) Investment of members of the commercial fishery to their own costs of fishing;and
2) Contributions of members of the commercial fishery to the cost of management of the fisheries.
Contracts - Alleged breach of contract for the right to operate the commercial fishery rights of a First Nation.
Aboriginal Rights - Whether or not Provincial Superior Court has jurisdiction over case involving Band Council administering a commercial fishing contract.
Practice - Application for an Injunction restraining party from interfering with or terminating contract.
Marion et al. v. Perley et al., 2015 NBQB 147
This case involved an alleged agreement whereby the plaintiff paid a First Nation for the exclusive right to manage and operate its commercial fisheries for the 2013, 2014 and 2015 fisheries. The agreement allegedly gave the plaintiff full control over the commercial fishery operations, the right to lease licences at will from the First Nation and be the designate as defined by Fisheries and Ocean's (DFO) guidelines.
The contract worked well until there was a change in composition of the Band council. After that time there were a number of alleged breaches including forwarding a resolution to DFO that appointed a new chief councillor as the "fishing authority".
As a preliminary matter the court had to determine whether it had jurisdiction, as the Defendants argued that the Federal Court had jurisdiction because the Band Council was a "federal board, commission or other tribunal". In upholding its jurisdiction the court ruled that because the Band Council decisions being reviewed involved a private commercial matter, it was not acting as a "federal board, commission or other tribunal".
With respect to the request for an injunction, the court applied the three part test set out in RJR MacDonald Inc. v. Attorney General (Canada) (1994), CanLII 117 (SCC). The court had no difficulty finding that there was a serious issue to be tried. The court also found irreparable harm, based upon (a) the fact that the Band Council was under third party management by the Department of Aboriginal Affairs and (b) if the contract were terminated there would be a ripple down effect impacting other parties the plaintiff had contracted with such as fishing captains and crews who were supposed to fish for the plaintiff. With respect to balance of convenience, since the three year contract would end approximately seven months after the decision was being issued, the court ruled in favour of the status quo.
Based upon its application of the RJR MacDonald test, the court granted the injunction to the end of 2015.
Aboriginal Right - Injunction to stop herring fishery
Practice - Appeal of Injunction - Mootness
Minister of Fisheries and Oceans v. Ahousaht First Nation et al. , 2014 FCA 211
This case involved the appeal of a decision of the Federal Court issued on 28 February 2014 restraining the Minister of Fisheries from opening a commercial herring roe fishery(digested on this website). Since the commercial herring fishery was completed before the Crown requested an expedited appeal in June of 2014, the court ruled that there were no factors that would justify allowing an appeal notwithstanding mootness.
Taxation - Aboriginal Rights - Income primarily from herring roe-on-kelp and herring roe fishery not exempt
Pilfold Estate v. v. R, 2014 FCA 97
This case involved an exemption claimed by a roe-on-kelp and herring roe fisher who was a status Indian from the Musqueam First Nation. After applying the connecting factors test, the court did not allow the exemption that company minute books were kept on the reserve. Some of these factors included:
"The fishing boat and fishing equipment were kept off reserve. The extensive preparations required each season occurred off reserve under Mr. Pilfold’s direction as captain of the fishing boat. The fishing took place off reserve under Mr. Pilfold’s direction. All sales were made by Mr. Pilfold to commercial buyers off reserve. The only factual connections between the fishing operation and the reserve were weak or insubstantial: some telephone calls were made from the Musqueam home with respect to equipment repairs, and some trimmings from the roe on kelp harvesting – a relatively small amount – were donated to First Nations."
Aboriginal Rights - Practice - Injunctions - First Nations Granted Interlocutory Injunction Prohibiting Opening of Commercial Roe Herring Fishery
Ahousaht Indian Band v. Canada (Minister of Fisheries and Oceans), 2014 FC 197
In this case the applicants were a group of five First Nations located on the West Coast of Vancouver Island who had recently had their right to to fish and sell fish affirmed by the Supreme Court of B.C. with the issue of justification and infringement to be later determined. When affirming this right, the court had given the parties a period of time to consult and attempt to negotiate the manner in which the aboriginal rights to fish and sell fish would be exercised. During this period the the Minister made a decision for a small scale opening of the commercial roe herring fishery, despite the fact that his officials had recommended keeping the fishery closed. It was also noteworthy that the fishery had been closed for the previous nine years because of conservation concerns. Shortly before the commencement of the commercial fishery, the group of First Nations brought an application for an interlocutory injunction.
The issues addressed by the court were as follows:
1) Does a serous issue arise;
2) Will irreparable harm occur if the injunction was not granted; and
3) Does the balance of convenience favour the injunction.
DOES A SERIOUS ISSUE ARISE
Without a great deal of analysis, the court found a serious issue arose with respect to:
a) Conservation issues concerning the fishery; and
b) The acknowledged Aboriginal rights of the Applicants to fish and sell fish.
The court found that there would be irreparable harm because of:
a) Serious conservation concerns;and
b) The Applicants would "lose their position and opportunity to reasonably participate in negotiations for establishment of their constitutionally protected Aboriginal rights to a community-based commercial herring fishery [para. 27].
Although inadequate consultation does not always constitute irreparable harm, the court distinguished Musqueam Indian Band v. Canada, 2008 FCA 214 on the basis that "the Applicants have established an Aboriginal right to fish and sell fish and are therefore operating within an established rights legal framework and because they are in the process of negotiating the manner in which the Applicants' Aboriginal rights can be accommodated and exercised. [para. 28].
BALANCE OF CONVENIENCE
In finding the the the balance of convenience favoured the applicants, the Court emphasized the need to consider the public interest in ensuring that the Crown followed the previous court's direction to participate in negotiations concerning how the applicant group would exercise its fishing rights.
The public interest also favoured conservation.
Given its finding as described above, the Court granted an interlocutory injunction prohibiting the Minister from opening the West Coast of Vancouver Island commercial herring fishery. It also relieved the applicants from the normal requirement of having to give an undertaking as to damages.
Editor's Note: At the time of writing, this decision was under appeal.
Aboriginal Rights - Judicial Review of Band Council Decision re allocation of Communal Fishing Licence - Whether Band Council is a "Federal board, Commission or Other Tribunal"
Malonie v. Shubenacadie Indian Band, 2014 FC 129
The applicant band member obtained a bank loan to purchase a fish boat upon the assurance of her Band Council that she would be given use of a communal snow crab licence and quota for a period of six years. She purchased the fish boat and had use of the licence and quota for three years. The Band then assigned the licence to another non-aboriginal party for a two year period. As a result, the applicant commenced a judicial review proceeding in Federal Court seeking the following:
1) An injunction prohibiting the Band from allocating the licence to anyone other than herself;
2) A declaration that the Band exceeded its jurisdiction in allocating the licence to another person.
PRELIMINARY JURISDICTIONAL ISSUE
As a preliminary matter, Band argued that its decision was not subject to judicial review by the Federal Court because in making the allocation decision the Band was not acting as a "federal board, commission or other tribunal" within the meaning of s. 2(1) of Federal Court Act. In holding that the Band was acting as a federal board, commission or other tribunal the court said as follows:
"[T]he Band Council’s decision to allocate the quota to Kaiser is reviewable because it was made under regulatory grant of authority delegated by the Minster to the Band to decide who is authorized to fish the quotas allocated by the communal licences. In other words, in this case, like the others where band council decisions have been found to be amenable to judicial review, the Council was exercising a power specifically afforded to it by regulation." [para. 31] In applying the test set out in Air Canada v Toronto Port Authority, 2011 FCA 347 the court also concluded that:
1) There were significant public aspects to the decision because the Interim Fishery Agreement with Federal Government recognized that communal licences were granted to the First Nation in order to provide members with opportunities to conduct fishing and related activities;
2) Granting of licences pursuant to a monopoly right to harvest a community resource has a significant public aspect;
3) The Band Council authority to issue communal licences was entirely "interwoven into the scheme established under the Fisheries Act and Regulations and is exercising a licensing power akin to that exercised by the Minister under section 7 of the Fisheries Act . . ." [para. 36].
4) The Band council is exercising authority delegated to it by the Minister; and
5) The decision to designate an individual under a communal licence involved the exercise of a compulsory power.
Given the court's conclusion that the decision was subject to the jurisdiction of the court over judicial review, it followed automatically that the requirements of natural justice and procedural fairness applied to the Band. The scope of of the requirements vary depending upon a number of factors set out in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). In this particular case, the court found two important factors:
1) The applicant derived important income from having her fishing vessel fish for snow crab and that she took out a loan understanding that she would have access to the licence for five years; and
2) Given the letter the Band provided to assist with her financing and the failure of the Band to express any concerns about her performance, the applicant had a legitimate expectation that she would be advised if there was a risk of her losing the licence before the end of the five year term and that she would be given an opportunity to address any concerns and make a proposal.
Based upon these to factors the court concluded that the case fell towards the lower end of the spectrum, but was more than minimal. As result the court set aside the Band's decision to issue the quota to another party and ordered it to re-determine who and which vessel would have use of the licence. In doing so, the Band was required to:
1) Give her notice of its intention to make a decision;
2) Give her the right to submit a proposal for her use of the licence;
3) Give her the right to address the Band's concerns regarding lack of profitability in previous years;
4) The other party who the band had re-assigned the licence to and fished the licence for one year, should also be given an opportunity to make a proposal (the proposals of one applicant need not be disclosed to the other).
The court declined to deal with the applicant's claim that the Band's decision was unreasonable because it would be re-made. However the court did express the opinion that discretionary licensing decisions are afforded considerable deference. It also noted that the object of the Interim Fisheries Agreement to provide members of the First Nation with opportunities to conduct fishing and related activities, could be met "in appropriate circumstances by assigning the quota to a non-aboriginal enterprise that undertakes . . . to hire and train members . . ." "
Metis - Aboriginal Right to Fish - Identification of Relevant Time frame
R v. Bavin, 2013 NSSC 434
This case involved a aboriginal fishing rights defence to a charge of illegal gillnet fishing. Upon summary conviction appeal, the appeal court upheld a decision rejecting the aboriginal defence upon the grounds that the accused did not establish the date of effective control by Europeans at the required time.
Aboriginal Rights and Defences - Fishing without a licence - Defence of aboriginal right to fish based upon Metis ancestry not made out.
R v. Langan, 2013 SKQB 256
Aboriginal Rights and Defences - Judicial Review of Decision of the Minister of Fisheries and Oceans to Renew Four Short-term Aquaculture Licences
K'omok First Nation v. Canada (A.G.), 2012 FC 1160
This cased involved a challenge by the K’omoks First Nation (“FN”) with respect to the granting of four aqua-culture licences issued to non-members of the FN in its claimed traditional territory in 2010 shortly after the Federal Government took over jurisdiction for regulating aqua-culture following the Morton decision. It also involved a challenge to the Minister of renewal of these four licences in 2012 by the Minister of Fisheries.
With respect to the issuance of the 2010 licences, the court held that given the immense task faced by the Department of Fisheries and Oceans (“DFO”) in taking over jurisdiction for the regulation of aquaculture, it was reasonable for it to limit its consultation to the conditions of licences as opposed to their very issuance. The Crown acted reasonably and honourably and could not be expected to have completed an assessment of the strength of the Band’s claim before issuing the licences.
In September of 2011 DFO agreed to consider the issue of whether the four licences should renewed. As a result it started a strength of claims analysis that was complicated somewhat by the fact that some of the shellfish species at issue are not native to B.C. As a result the strength of claim analysis was not complete and the four licences were renewed in 2012 for another year.
It was not until after the release of Kwicksutaineuk Ah-Kwa-Mish Fsrst Nation v. Canada (A.G.), 2012 FC 517 http://canlii.ca/t/frv2c that DFO formally admitted that it had a duty to consult with the FN.
After reviewing all of the evidence the court found that: (1) The Crown acted reasonably and discharged it duty to consult, except that it should have admitted earlier that it had a duty to consult; (2) The Crown acted reasonably in not assessing the strength of the Band’s claim before did; (3) the Crown is under an ongoing duty to continue consultations in good faith, and if appropriate, offer accommodation.
Judicial Review Crown Liability - Aboriginal Rights and Defences - Availability of Remedy of Declaratory Judgement stating First Nations persons were to be prosecuted without dispensation for violations of Aboriginal Communal Fishing Regulations - Offences - Misc. - Dispensation of outside charges against other persons does not render prosecution of participatns in protest fishery and abuse of process.
R v. Armstrong, 2012 BCCA 242
Aboriginal Rights and Defences - Class Actions -"aboriginal collectives" can not be part of a class because not ascertainable without in-depth examination of merits - Whether Band is a legal entity
Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193
Editor's Note: As of August 2012, an appeal to the Supreme Court of Canada is pending.
Aboriginal Rights and Defences - Judicial Review - Decision to Issue Fish Farm Licences in Broughton Archipelago After Federal Government Assumed Jurisdiction Over Aquaculture
Kwicksutaineuk Ah-kw A-mish First Nation v. Canada (A.G.) et al., 2012 FC 517
This was an application for judicial review that was a direct consequence of the Morton decision that held the provincial regulatory regime over fin fish aquaculture was constitutionally invalid. As a result of this decision, the federal government was given one year to consider and put into place a regulatory regime over aquaculture in B.C. This meant approximately 680 provincial aquaculture licences would expire on 18 December 2010 and not be renewed by the province.
The applicant First Nation brought an application for judicial review of the decision of the Department of Fisheries and Oceans (“DFO”), to issue fin fish aquaculture licences to two companies with salmon farms in the Broughton Archipelago on the north east coast of Vancouver Island. One of the sites had been licenced by the provincial government since 1992. The other site at issue had been licenced since 1993.
The applicant argued that the abundance and quality of its fishery is in decline and that the decline was being caused, in part, by the presence of salmon farms.
In deciding this application, the court examined the following issues:
(1) Did the applicant have standing;
(2) Did Canada have a duty to consult with the applicant regarding issuance of the licences;
(3) Were DFO’s efforts at consultation reasonable?
It was argued by the AG that rather than bring the application in the name of the Indian Band, the application should have been brought by an individual member of the aboriginal collective pursuant to Federal Court Rule 114(1). Since the language of s. 114(1) is permissive and not mandatory and since evidence was led establishing a connection between the band and the pre-sovereign group, the court held that the Band had standing.
DUTY TO CONSULT
The court reviewed the tests as set out in Haida Nation and in Rio Tinto (99) and held that the first two elements of the test were clearly made out. The more difficult question for court was the third requirement that there be “potential that the contemplated conduct adversely affect an Aboriginal claim or right” (99). After reviewing jurisprudence regarding change in governance, the court concluded that the “fundamental shift in the management of the aquaculture industry” created an obligation for the federal government to consult. In addition, although Haida states the duty to consult only applies to new potential adverse impacts, the court held that the “re-issuance of a licence, even if it is similar to the one it is replacing, is certainly sufficient to meet the third requirement underlying the duty to consult (110). The extent of changes brought about by the renewal will be a crucial factor in assessing the extent of the duty to consult.
With respect to evidence that fish farms adversely impact the claimed aboriginal fishing rights, after reviewing the evidence the court concluded that “there is still a lot to be learned regarding the causes of the decline of some salmon stocks in some rivers of the Broughton Archipelago (115). As a result the court held the “seriousness of the impact caused by the impugned licences on KAFN’s asserted Aboriginal right remains open to question; far from being firmly established . . . at least for now speculative.” It held that the consultation required was neither at the upper end of the spectrum nor the lower end.
WERE DFO EFFORTS REASONABLE?
After reviewing all of DFO’s consultation efforts, the court concluded its efforts were adequate. In doing so, it noted the following:
1) DFO was in a very difficult position as a result of the Morton decision;
2) DFO did in fact consult extensively over a 22 month period (119);
3) The applicant’s proposal to, in essence implement a fallowing strategy for the entire Broughton region, would have required DFO to undertake broad multilateral consultation involving all First Nations potentially involved as well as other interested parties; and
4) The applicant’s request to not issue the licences for the sites at issue did not come until one day before the expiry of the provincial licences.
Judicial Review/Crown Liability - Aboriginal Rights and Defences - Supreme Court Proceeding Seeking Damages for Failure to Give FSC Fishery Constitutionaly Protected Priority- Not within Exclusive Jurisdiction of Federal Court (Telezone applied)
Matsqui First Nation v. Canada (Attorney General), 2012 BCSC 492
Taxation - Aboriginal Rights and Defences
Income earned by status Indians taking place partly on reserve (preparation, mooring boats, delivery to co-op operating from reserve) and partly off reserve (catching nearby and sales) held to be exempt under s. 87 of the Indian Act. Long history of fishing near reserve also important
Canada v. Robertson, 2012 FCA 94
Application for leave to the Supreme Court of Canada was dismissed on 20 March 2012 2012 CanLII 64752 (SCC)
Aboriginal Rights and Defences - Characterization of Aboriginal fishing Rights in Declaratory Action
Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56
This case involved a claim by a group of Coast Tsimshian First Nations located near Prince Rupert, B.C.) for a declaration of entitlement to harvest all species of fish, shellfish and aquatic plants in their tribal territories and sell them on a commercial scale. The trial and related proceeding took 125 days resulting in a trial judgement that was released in 2008. In the trial judgment, the Court reviewed the historical evidence and expert interpretations thereof and concluded that:
[T]rading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society.
. . .
I agree that an aboriginal right, once proven, is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the aboriginal right is based.
However, the plaintiffs’ simplistic position that the ancient trade in eulachon grease has transmogrified to a modern day right to commercial fishing of salmon, halibut and all other marine and riverine species of fish, ignores the fundamental fact that the Coast Tsimshian fished for sustenance, not for trade. The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.
[As quoted from para. 30 of BCCA decision]
As a result of this conclusion, the case was dismissed by the trial Court.
Upon Appeal, to the British Columbia Court of Appeal (link), the decision of the trial court was upheld.
The case was further appealed to the Supreme Court of Canada on four different issues.
1) Did the courts below err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices ?
With respect to this issue, the Court rejected the "commission of inquiry" or "flying dutchman" approach advocated by the appellants because it is illogical,contrary to authority and contrary to the rules of civil procedure. However, the Court did state that if necessary, amendments to pleadings should be sought at trial. The court then set out a four part test with respect to characterization of the claim and establishment of an aboriginal fishing right based upon that characterization as follows:
First, at the characterization stage, identify the precise nature of the First Nation’s claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, refine the characterization of the right claimed on terms that are fair to all parties.
Second, determine whether the First Nation has proved, based on the evidence adduced at trial: (a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and (b) that this practice was integral to the distinctive pre-contact Aboriginal society.
Third, determine whether the claimed modern right has a reasonable degree of continuity with the “integral” pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.
Fourth, and finally, in the event that an Aboriginal right to trade commercially is found to exist, the court, when delineating such a right should have regard to what was said by Chief Justice Lamer in Gladstone (albeit in the context of a Sparrow justification), as follows: Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment. [Emphasis in the original; para. 75.]
2) Did the courts below err in isolating the ancestral practice of trading in eulachon grease “as a practice of its own” rather than focusing more comprehensively on the Coast Tsimshian “fishing way of life”?
While analyzing this issue, the Court noted that aboriginal rights continue to evolve from the time of first contact in terms of both subject matter and method of exercise. With respect to method of exercise, courts have repeatedly recognized that fishing methods continue to evolve. However in terms of subject matter, the situation is more complex. In this regard, the Court adopted a quote from Marshall (2005) stating that "Aboriginal practice cannot be transformed into a different modern right" Notwithstanding the reference in Sappier to pre-contact "way of life", this does not replace the distinctive culture test set out in Van der Peet. The trial judge did not find sufficient trade, other that trade in eulachon grease, that was integral to the distinctive culture of the Plaintiffs.
With respect to the "species specific" debate, this will depend upon the facts of each case. In the absence of compelling reasons, the Court would not be inclined to freeze an aboriginal group's permissible catch to what it caught at the time of contact. However in the case of the Plaintiff's claim, the declaration granted by the trial court with respect the eulachon fishery was an exception to the general finding of the court that they had no aboriginal commercial rights.
The Court upheld the trial court's finding that the "transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be 'evolution' but the creation of a different right" (para. 59). In particulary, the court adopted the following wording of the trial court as modified by use of the words "provides a sufficient historical bais for":
In my opinion, it would be stretching the concept of an evolved Aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease provides a historical basis for a modern right to fish commercially all species in their Claimed Territories. (para. 30). [emphasis added]
3) Did the courts below err by refusing to consider whether the appellants had established a “lesser” right to fish on a “moderate” scale “to sell to others in order to acquire money, goods or services to sustain [their] communities” or to an Aboriginal right to fish for food, social and ceremonial purposes?
The trial court's conclusion that trade in fish apart from eulachon grease was not integral to the Coastal Tsimshian pre-contact society was as fatal to the lesser commercial claim as it was to the greater commercial claim. In any event, since neither party led evidence regarding a pre-contact practice of "sustaining the community" through trade and since the matter was not raised until final argument it would be unfair to allow a new claim to be added at such a late stage.
4) Did the courts below err in dismissing the claim based on the Honour of the Crown by concluding that, in the allotment of fishing station reserves, the Crown did not expressly or impliedly promise the Lax Kw’alaams a preferential fishery?
The trial court found no express promise to any preferential access. The finding of an implied promise on R. v. Marshal (No. 1), was distinguishable because the implied promise was based upon the wording of a treaty. As result the decision of the trial court was upheld.
Aboriginal Rights and Offences - Offences - Misc. - Possession of Fish for Purpose of Shielding Illegal Fishing Activities of Non-Aboriginal
R v. Lee, 2011 SKPC 2
Aboriginal Rights and Defences - Aboriginal right to catch and sell fish
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011 BCCA 237
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.
Aboriginal Rights - History
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).
Aboriginal Rights and Defences - FSC Priority - FSC Priority does not always amount to priority in time
R v. Quipp, 2011 BCCA 235