Author
After nearly 20 years of litigation, the BC Court of Appeal has ruled that Canada’s regulatory system violated the commercial fishing rights of five Nuu-chah-nulth Nations. The decision helped to define the rights in broad, inclusive terms, without limits based on historical fishing practices. The Court concluded that the Nations’ access to fish must be sustainable and viable to honor the rights, and that the Nations should play a necessary role in the co-management of the fisheries.
How This Impacts First Nations Issues:
- Aboriginal rights in Canada cannot be considered frozen in time.
- Limiting Aboriginal rights in the context of historical methods and technologies risks prejudicing the development and thriving of such communities.
- Indigenous communities have a necessary role to play in ensuring the sustainability of natural resources in Canada.
Ahousaht : The Road to Recognizing Aboriginal Commercial Fishing Rights
On April 19th, 2021, the BC Court of Appeal handed down a unique judgment recognizing the commercial fishing rights of five Nuu-chah-nulth Nations—Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht, and Tla-o-qui-aht (collectively, “the plaintiff Nations”). The decision, Ahousaht Indian Band v. Canada (Attorney General), [2021] B.C.J. No. 796, is the result of almost 20 years of litigation against a Canadian government that sought to justify its indirect exclusion of Indigenous fishers from the industry, and yet another reminder of the sociopolitical changes that need to be made to ensure that Indigenous peoples in Canada can earn sustainable livelihoods.
- The Nuu-chah-nulth and Their History of Fishing
The Nuu-chah-nulth peoples (sometimes referred to as “Nootka”) are indigenous to the Western Coast of Vancouver Island, an area rich in terrestrial and marine resources. Among the Nuu-chah-nulth peoples, 15 related Nations exist, of which five were plaintiffs in this specific case. “Nuu-chah-nulth” is a collective name for these related Nations, chosen in 1978 by the peoples themselves, meaning “all along the mountains and the sea.”
The Nuu-chah-nulth have lived along the Western Coast of Vancouver Island for an estimated 4,000 years, fishing in the Pacific Ocean as a primary means of sustenance and trade amongst the Nations. Among the numerous harvested and traded species were salmon, halibut, herring, groundfish, sprat, crab, prawn, mussel, clam, and gooseneck barnacle. When Juan Perez, Captain James Cook, and other Europeans arrived in the region in the late 18th century, it was the Nuu-chah-nulth who took the initiative to begin trading in fish with the foreigners.
However, throughout the next two centuries, the local Indigenous fishers were systematically pushed out of the Western Vancouver Island commercial fishing scene through exclusionary government regulation. In order to fish commercially, Nuu-chah-nulth fishers had to compete with large companies for an ever-shrinking number of commercial fishing licences. The government’s system of allocations assigned industrial operations greater poundage per year, with subsequent allocations oftentimes based on the previous season’s catch, resulting in an uphill battle for smaller-scale fishers to break into the fold. Where Ahousaht harbour was once filled with small, Nuu-chah-nulth-owned boats and skiffs, few of these remained through to the 21st century.
By 2003, many of the “A” fishing licenses, some of the broadest commercial licences, permitting the harvest of all species of fish, were taken away from Aboriginal fishermen and given to large-scale private operations. Of the 56 crab fishing licenses released by the Department of Fisheries and Oceans for Clayoquot Sound, just 2 were held by Nuu-chah-nulth fishers.
Key Moments
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- History of the Litigation
On the basis of their increasing exclusion from their traditional fishing territories and subsequent difficulty trading or selling fish, the plaintiff Nations, with the help of Ratcliff lawyers F. Matthew Kirchner, Lisa Glowacki, and others, sought to establish in court that: (a) the Nations have an Aboriginal right to fish on a commercial basis, (b) the Nations hold Aboriginal title over their traditional fishing territories, and (c) the Fisheries Act and regulations thereunder infringe on such Aboriginal rights.
The First Phase
What is now referred to as the “first phase” of the Ahousaht litigation began in 2003, when the initial statement of claim was filed by the plaintiff Nations, seeking the foregoing three declarations. In its response to the pleadings, Canada denied that the plaintiffs possessed an Aboriginal right to trade or sell fish, or that its fisheries regime infringed any other Aboriginal rights of the plaintiffs. If there was an infringement, Canada argued in the alternative that it could be justified on the basis of the need to sustainably manage national fisheries.
On November 3, 2009, after 110 days of trial interspersed over several years and a lengthy period awaiting the final verdict, Garson J. of the BC Supreme Court (BCSC), as she then was, delivered the first judgment in the lengthy Ahousaht litigation. Analysis of the plaintiffs’ asserted Aboriginal rights featured heavily in the judgment, with the question of title being ultimately dismissed. Garson J. held that the plaintiff Nations possessed an Aboriginal right to fish for any species in their territories and to sell their catch, and that Canada’s fisheries regime infringed on this right. She found it “unfair” [871] to declare an unjustified infringement without first giving the parties a chance to consult or negotiate with the benefit of her judgment. An order was made that the Nations, the Canadian government, and BC government would conduct negotiations for the following two years, after which time the parties could reapply for further directions if no resolution could be found.
Rather than commencing negotiations, Canada chose to first appeal the decision. The BC Court of Appeal (BCCA) affirmed the BCSC judgment almost in its entirety, while the Supreme Court of Canada (SCC) on two occasions denied the appeal, remanding the case back to the provincial Supreme Court for consideration in light of the SCC’s 2011 Lax Kw’alaams decision. Lax Kw’alaams clarified the framework for characterizing Aboriginal rights based on proven historical practice.
The Second Phase
Negotiations after Canada’s attempts at appeal were unfruitful; both parties viewed their position as the correct one and, in any event, Canada did not provide its negotiators with the authority to adopt a revised regulatory regime to accommodate the plaintiffs’ rights.
So began the second phase of the case. In 2015, the plaintiff Nations and the Government returned before the BCSC for the remanded trial in which the Aboriginal rights would again be characterized and Canada would be given the chance to lead evidence in an attempt to justify any infringement of the Nations’ commercial fishing rights. Because Garson J. had been appointed to the BCCA since 2009, the case was presided over, and judgment delivered on April 19, 2018, by Humphries J.
Humphries J. considered the 2009 declaration insufficient to allow for a full justification analysis, so she elaborated on each species-specific right before turning to the questions of infringement and justification. In doing so, she restricted the plaintiffs’ rights beyond the level set in 2009, specifying that the right to fish was limited to “small-scale,” “artisanal,” and “local” operations and would be assigned “low priority” in relation to third-party fishing rights where the Nations did not have a close historical connection with a particular fishery. In respect of certain Aboriginal fishing rights, she found an unjustified infringement by governmental regulation; in respect of others, a justified infringement; and, still others, no infringement at all. She also found that Canada had not failed in its duties to consult, negotiate, and act in good faith via its failure to accord negotiators any significant regulatory authority. These were notable losses for the Nuu-chah-nulth Nations in comparison to Garson J.’s 2009 judgment, and the case would be appealed once more, this time by the plaintiffs, to the BCCA.
- The 2021 Judgment of the BC Court of Appeal
Allowing the appeal in part, Groberman J.A., speaking for a panel of three BCCA judges, struck somewhat of a balance between the 2009 and 2018 judgments.
He upheld numerous parts of the 2018 judgment, including the notion that Canada had not failed in its duties to consult, negotiate, and act in good faith. Perhaps more significant were the facets of the judgment Groberman J.A. chose to overturn, however: he ruled that Humphries J. had erred in limiting the plaintiff Nations’ rights by way of boat size, operation size, and priority. To restrict the Aboriginal right to fish in this way was labelled “an unjustifiable limitation on the right declared.”
Instead, Groberman J.A. defined the plaintiff Nations’ right to fish commercially in broader terms: the right to a “non-exclusive, multi-species, limited commercial fishery aimed at wide community participation, to be conducted in their court defined area for fishing, which extends nine nautical miles offshore.” While the absence of a historical or territorial connection to a particular fish may warrant a lower allocation of said fish to Indigenous fishers, Humphries J.’s declaration as to “low priority” was also overturned. Regarding fisheries within the plaintiff Nations’ territory, in the case that the most current evidence shows that the stock of a certain fish will not fulfil the normal allocations of both the Nuu-chah-nulth and third party fishers, the Aboriginal right must be given priority.
Groberman J.A. upheld much of Humphries J.’s analysis on which specific parts of Canada’s regulatory regime represented unjustified infringements to the plaintiff Nation’s commercial fishing rights, declaring his expectation that the situation would be remedied diligently by the Department of Fisheries and Oceans (DFO). The option for a mandatory order was left on the table, should Canada fail to comply.
- Aboriginal Fishing Rights after Ahousaht
Following the 2021 decision in the Ahousaht case, Canada admitted that it would not seek to appeal Groberman J.A.’s decision. Having said that, little has been done so far on the government’s end to implement the BCCA’s judgment. A Multi-Species Fishery Management Plan is being written and revised following the outcome of the case, but it appears far from adoption and implementation by the DFO.
In the absence of expeditious government action, leaders and fishers in the five Nuu-chah-nulth Nations have begun to devise their own fisheries plans with a view for the 2021 judgment and ecological conservation. Cliff Atleo, the lead negotiator for Ahousaht First Nation, said this of Canada’s inaction:
“By failing to breathe life into our negotiation agreements, the Government of Canada is pushing us to exercise what our Ha’wiih have the authority to do. We’re creating our own fisheries management plans within the framework of conservation, and we will enact them within our traditional territories.”
Whether Canada successfully revises its Management Plan, which requires continuing consultation with the five Nuu-chah-nulth Nations, remains to be seen.
More generally, the outcome of Ahousaht represents a stark reminder as to the nature of Aboriginal rights in Canada. Firstly, these rights cannot be considered frozen in time, protected only insofar as the practice existed at the time of European contact or at the time that Aboriginal rights became constitutionally protected in 1982. The SCC warned against just this—“frozen rights”—in its famous Sparrow judgment. Thus, despite the historical use of low-technology fishing equipment within a local operation, the right of these five Nuu-chah-nulth Nations to fish commercially cannot be permanently limited to such means, or else risk prejudicing the development and thriving of such communities.
Ahousaht also emphasizes that Indigenous communities have a necessary role to play in ensuring the sustainability of natural resources in Canada, such as fish. Groberman J.A. underlined the importance of sustainability to the respect of Aboriginal rights at the close of his judgment:
“I do express some doubt that a clear line can be drawn between culture and economy. Fishing and trading in fish was, historically, an integral part of the Nuu-Chah-Nulth existence, and it served an economic purpose. There can be no suggestion that Nuu-Chah-Nulth people fished merely for spiritual reasons or as a hobby. While fishing may not have been the exclusive way that the plaintiffs generated their livelihoods, it was found by the original trial judge to be “the predominant feature of the Nuu-chah-nulth society”. It clearly had great economic importance. Accordingly, sustainability and viability are important to the question of whether the Aboriginal right is being respected.”
Although government communication with the five Nations has been underwhelming in this case to date, it must be understood that ensuring the sustainability of the many Western Vancouver Island fisheries, as was Canada’s purported goal in instituting its exclusionary fishing regulations, both benefits Indigenous peoples and benefits from Indigenous consultation.
