Case Brief: Ahousaht Indian Band and Nation v. Canada (Attorney General), 2021 BCCA 155
By Christopher Devlin, Sarah Pike and Lorenzo Rose
What this case is about
This decision is the latest instalment in the long and complex litigation between Canada and five Nuu-chah-nulth First Nations (the “Plaintiffs”) over the Plaintiffs’ commercial fishing rights in their traditional territories off the west coast of Vancouver Island. The trial was divided into two phases; this decision is in respect of the second phase.
The first phase considered whether the Plaintiffs had an Aboriginal right to fish commercially and whether Canada’s regulatory regime infringed that right. In 2009 the B.C. Supreme Court declared that the Plaintiffs had “aboriginal rights to fish for any species of fish” within their territories and “to sell that fish.” It also declared, generally speaking, that Canada’s regulatory regime infringed the Plaintiffs’ right. In subsequent appeals, the British Columbia Court of Appeal largely upheld the decision.
Following those decisions, Canada and the Plaintiffs unsuccessfully attempted to negotiate an end to the litigation. Frustrated with the inconclusive negotiations, the Plaintiffs returned to court for phase two of the trial seeking, among other things, a declaration that Canada’s regulatory regime had unjustifiably infringed their Aboriginal fishery rights. The court examined various fisheries by species, the policies and licencing regimes regulating them, and assessed whether these regulations unjustifiably infringe the Plaintiffs’ fishing rights. Some regulations were found to be unjustifiable infringements, while others were found to be justifiable.
The decision the BC Court of Appeal delivered today was an appeal from this second-phase “infringement” decision. There were four issues on appeal:
- The Crown’s duty to consult and accommodate the plaintiffs;
- The trial judge’s recharacterization of the Aboriginal right declared in the first phase;
- The trial judge’s analysis of the findings of infringement from the first phase;
- The trial judge’s analysis of whether the Crown regulations constituted a justified infringement of the plaintiffs’ rights.
Justice Groberman, for a unanimous Court of Appeal, allowed the appeal in part. He held that:
- The trial judge did not err in refusing to declare that Canada had not breached its duty to consult and accommodate, despite evidence that Canada had not granted its negotiators the necessary power resolve the dispute until shortly before the trial;
- The trial judge erred in recharacterizing the Aboriginal right declared in the first phase as the trial judge did not have authority to diminish the declared rights;
- The trial judge did not err in examining issues of infringement as the first phase decisions did not consider which aspects of the regulatory regime infringed the right; and
- The trial judge for the most part did not err in her assessment of whether the specific regulation of particular species of fish justifiably infringed the Plaintiffs’ Aboriginal commercial rights except with respect to three instances.
What the court found
1. The trial judge did not err in finding that Canada did not breach the duty to consult
The Plaintiffs argued that Canada had not negotiated in good faith as Canada had refused to empower its negotiators to accept changes to the current regulatory regime until shortly before trial.
Justice Groberman recognized that, without the power to change the regulatory regime, those negotiations had little chance of success. He also recognized that the first phase decisions strongly implied that changes to the regulatory regime would be necessary, although that decision stopped short of ordering Canada to make any changes. However, the task of a court was not to “design a fishery” but to provide legal guidance to assist the parties (and particularly the regulators) to craft fisheries regulations that respect the Plaintiffs’ rights. Specific areas of disagreement will have to be resolved in judicial review applications or by more narrowly focussed civil claims.
2. The trial judge erred in recharacterizing the Aboriginal rights declared in the first phase
The first phase decisions recognized that the Plaintiffs hold a multi-species fishing right on a limited commercial scale. At the second trial, the trial judge was required to determine more specificity to the general declarations given in the first phase, and to set out, as far as possible, specific remedies that would eliminate the violations of the plaintiffs’ rights. The Court of Appeal held that the second trial judge was not entitled to impose new limits on those rights, nor could she expand them. She was, however, required to apply the declaration given in the first phase of the trial purposively, taking into account the reasons given by the original trial judge. As a result, the second trial judge’s order restricting the Plaintiff’s right to the use of small-scale, low-cost boats with limited technology was struck out.
3. The trial judge did not err, with three exceptions, in applying the justification analysis
Justice Groberman upheld many parts of the trial judge’s justification analysis but did find the trial judge made some errors. First, the trial judge erred in basing her analysis on the incorrectly-diminished version of the Plaintiffs’ right. Second, the trial judge erred in describing the Plaintiffs’ priority in some fisheries as “low.” Justice Groberman clarified that “the priority of Aboriginal rights… is always high.” Nonetheless, the second trial judge did not err in taking account of the importance of each individual species to the Plaintiffs’ distinctive culture. Justice Groberman held that “the historical, cultural, and economic connections of a Nation to a particular resource are considerations that a judge should take into account in undertaking a justification analysis.”
The Court also held that the trial judge correctly dismissed the Plaintiffs’ argument that the rejection by Canada of the Plaintiffs’ suggested regulatory regime was an infringement. Canada has the right to determine the regulatory regime. Courts have the power to determine whether Canada’s chosen regime is constitutional, but not to force Canada to adopt a particular alternative.
The three points that Justice Groberman disagreed with the trial judge on were largely based on the evidence at trial. Canada had infringed the right of one of the plaintiffs, Ahousaht First Nation, with respect to commercial crab fisheries. Canada had unjustifiably infringed three of the Plaintiffs’ rights by not providing a commercial opportunity to participate in the prawn fishery. Finally, the trial judge had erred in restricting the Plaintiffs from fishing in a certain area of their territory.
Why this case matters
Justice Groberman described this case as “one of the most complex that courts have had to deal with.” Although the Court of Appeal was careful to endorse the bifurcation of the trial into two phases, the Plaintiffs may have been disadvantaged by presenting their second-phase evidence to a judge that had not benefitted from hearing the first-phase evidence. The focus changed as the protracted sequence of litigation played out, perhaps not as the Plaintiffs had anticipated.
The Court of Appeal was very clear about the limits of institutional competence of the courts – at best, courts may examine existing schemes and identify particular deficiencies. The Court of Appeal endorsed the trial judge’s conclusion that Canada had no duty to implement a regime offered by the plaintiff, even if that regime appropriately balanced the competing interests. Thus, the duty to consult does not require Canada to make acceptable proposals, and the justification analysis does not punish Canada for refusing acceptable proposals.
Where the Court of Appeal did take issue with the trial judge’s justification analysis, the issues were evidence-based and specific to each Plaintiff. This suggests that Indigenous groups seeking to challenge infringements of their Aboriginal rights should lead evidence indicating the presence and scale of the practices informing the claimed right prior to contact or risk, at the justification stage, the Crown’s regulatory regime being held to be a justifiable infringement of that right.
There are, however, some encouraging points. First, the Court of Appeal reaffirmed the importance of giving priority to Indigenous harvesting, even where the traditional practice giving rise to the right was relatively small-scale. How this endorsement will function with the statements that the importance of a traditional practice is relevant to the infringement analysis remains to be seen, but Justice Groberman indicated in strong terms that recreational harvesting should not take precedence over Aboriginal rights.
Second, the Court of Appeal took a generous position on how modern Aboriginal rights can evolve from pre-contact practices. Justice Groberman did not uphold the trial judge’s restrictions on the technology available to exercise the right. The Court also indicated that not only the technology used to harvest, but the species being harvested can evolve from pre-contact practices.
Notice for leave to appeal to the Supreme Court of Canada may be filed within sixty days. It is difficult to assess which party, if any, might be inclined to appeal. Technically Canada lost some ground and the plaintiffs gained back the original, broad declaration. But the Plaintiffs did not achieve what they had sought, that being an entirely different regulatory regime from the one Canada has in place. It would not be surprising to see the Plaintiffs attempt a further appeal to the Supreme Court of Canada.
Please feel welcome to contact DGW to discuss the implications of this decision and how it may affect your interests.