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The BC Court of Appeal (“BCCA”) recently issued a decision that affirmed the Nuu-chah-nulth’s Aboriginal rights to fish and sell fish and found that Canada’s regulatory regime infringed these rights.  This decision resolves nearly four years of appeals and essentially restores the 2009 decision of the trial judge, Madam Justice Garson (the BCCA did not accept Justice Garson’s finding that the First Nation had established an Aboriginal right to the geoduck fishery).

In November 2009, the trial judge found that the Nuu-chah-nulth have an Aboriginal right to fish for “any species of fish within the environs of their territories and to sell that fish.”  The trial judge found that harvest and trade in fish was integral to the pre-contact culture of the Nuu-chah-nulth, and that these ancestral practices translated into a modern right to sell fish.  This right was found to be broader than the right to sell fish in exchange for money, but not the same as an unrestricted right to the commercial sale of fish, or to fish on a large industrial scale.  The trial judge did not rule on whether Canada had justified its infringement of these Aboriginal rights, and instead allowed the parties two years to negotiate a way of accommodating the rights.

Canada appealed the trial judge’s decision.  In May 2011 the BCCA dismissed most of Canada’s appeal and upheld the trial judge’s decision (except for her findings regarding the geoduck fishery).  Canada then appealed to the Supreme Court of Canada (“SCC”) and the SCC remanded the case back to the BCCA to be reconsidered in accordance with its recent decision in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56.

The Reconsideration Decision

a.         How to Approach an Aboriginal Rights Claim

In this reconsideration, the BCCA agreed that following the decision in Lax Kw’alaams, the proper approach to analyzing an Aboriginal rights claim is to: (1) characterize the right based on the pleadings; (2) determine whether the First Nation has proven the right based on the evidence of the existence of a pre-contact practice, tradition, or custom that was integral to the distinctive Aboriginal society; (3) determine if the modern right has a reasonable degree of continuity with the pre-contact practice; and (4) if a right is found to exist, delineate that right with regard to the objective in the interests of all Canadians and aimed at reconciliation.

Canada and certain intervenors argued that the trial judge had failed to apply this approach correctly.  The BCCA disagreed with Canada, and agreed with the Nuu-chah-nulth that this was exactly the approach used by Justice Garson.  The BCCA noted that the trial judge was alive to the necessity of characterizing the rights claimed, and was fully cognizant of what was at issue in the litigation and what was encompassed by the pleadings.  She was not embarking on a “commission of inquiry” without anchoring the analysis to the rights as pleaded.

The BCCA reviewed the evidentiary differences between the Lax Kw’alaams case and the Ahousaht case.  In Lax Kw’alaams, the trial judge made a clear finding that, while at the time of contact the Lax Kw’alaams fished for a great number of species, they “did not trade in any significant way in species of fish or fish products other than eulachon.”  The BCCA noted that the trial judge in the Ahousaht case came to quite a different conclusion and it quoted from her summary of the evidence:

  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;
  9. the Nuu-chah-nulth had the ability to dry, preserve, and trade vast quantities of fish and marine products; 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.

The BCCA upheld the trial judge’s conclusion that the Nuu-chah-nulth “engaged in trade of fisheries resources” and “that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections.”

b.         The Integral to Distinctive Culture Test

Canada and the Province argued that the trial judge hadn’t properly applied the “integral to distinctive culture” test from R. v. Van der Peet, and had taken an overly expansive view of what constituted trade in fish by looking to practices such as tribute and gift giving.  They argued that the trial judge had lowered the bar for what types of past practices would be found to ground a right to sell fish.

The BCCA dismissed these arguments noting that the trial judge had properly applied the “integral to distinctive culture test” which she had summarized as a claim to an Aboriginal right requiring the Court to “examine the pre-contact way of life of the Nuu-chah-nulth in order to determine whether, as a question of fact, the evidence establishes trade in fish, and whether any such trade was integral to the distinctive culture of the pre-contact Nuu-chah-nulth.”  The trial judge then found that both fishing and indigenous trade in fish were prominent features of Nuu-chah-nulth culture.  The BCCA noted that findings of integrality are highly fact dependent, and that deference to the trial judge’s findings of fact was warranted.

c.         Species Specificity

Canada, the Province, the BC Wildlife Federation and the BC Seafood Alliance argued that the trial judge failed to sufficiently address the question of “species specificity,” and therefore characterized the fishing right too broadly.  The BCCA disagreed.  It found that the trial judge was not required to consider or articulate more than she did concerning individual marine species at this stage of the proceedings.  Notably, while Justice Garson issued a declaration that the claimants have an Aboriginal right to fish and trade fish, and that this right had been infringed, she did not enter into the justification analysis or a discussion of accommodation, as she found that the better route would be for the parties to negotiate how Canada could best recognize the Nuu-chah-nulth’s rights in the context of its legislative objectives and other societal interests.  Up until that point in the negotiations that had taken place, Canada denied that the Nuu-chah-nulth had an Aboriginal right to sell fish.  The negotiations were to proceed on a different footing.  This, the BCCA held, was a reasonable approach, and it noted that the question of a more precise definition of the rights claimed and possible justification would be dealt with at later stages.

Potential Implications

The BCCA has confirmed the approach to analyzing a claim for Aboriginal rights, bringing more clarity to the application of the “integral to” test.  Its decision reflects deference for the trial judge’s findings of fact and confirms that findings regarding what constitutes a practice, custom, or tradition integral to a distinctive culture will always be fact dependent.

The decision confirms the importance of ensuring that a sufficient body of evidence is placed before the trial judge to allow findings of fact that the trade of fish was integral to the culture of the First Nation.  The decision also provides further clarity on the approach the courts will use to assess the evidence related to the assertion of any Aboriginal right.

Over the last four years Canada has chosen to pursue appeals in an attempt to deny recognition of the Nuu-chah-nulth’s Aboriginal rights.  The BCCA’s reconsideration decision will now require Canada to negotiate with the Nuu-chah-nulth an accommodation of their Aboriginal rights to fish and sell fish, as Justice Garson directed in 2009.
