Aboriginal Rights/Defences - Case Summaries
The database contains 79 case summaries relating to Aboriginal Rights/Defences . The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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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
Aboriginal Rights and Defences - Offences - Selling of Food Fish
R v. Cardinal, 2010 ABQB 673
In this case, the trial court rejected a long list of defences based upon the inter-relationship between Treaty 6 rights and the Natural Resources Transfer Agreement ("NRTA"). With respect to the interjurisdictional immunity doctrine, the court concluded that since the Provincial hunting and fishing laws could not go the the "core of Indianness" because their Treaty right to sell fish was extinguished by the NRTA.
The decision was upheld by the appeal court.