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Supreme Court of Canada sends Aboriginal fishing rights case back to Court of Appeal

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Aboriginal Law Bulletin

On March 29, 2012, the Supreme Court of Canada denied leave to appeal from Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237, stating:

Pursuant to subsection 43 (1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal is remanded to the Court of Appeal for British Columbia to be reconsidered in accordance with the decision of this Court in Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535.

The Ahousaht case was decided by the BC Court of Appeal in May 2011 and the SCC came down with Lax Kw'alaams in November 2011; as a result, the Court of Appeal did not have the benefit of the SCC's reasons when making its decision. The Supreme Court of Canada had summarized the issues that were appealed and the underlying case in Ahousaht in this way:

Aboriginal  law – Constitutional law – Constitution  Act, 1982,  s. 35 –Aboriginal  rights – Indian band  – Fishing – Did the Court of Appeal err in upholding the trial judge’s decision to dispense with the first step in the analysis developed by this Court to determine Aboriginal rights claims, that is, to characterize the nature of the right claimed – Did the Court of Appeal err in deferring part of the analysis of defining the Aboriginal right based on the proven pre-contact practices to the stage of examining whether an infringement of that right is justified – Did the Court of Appeal err in permitting pre-contact practices of harvesting, gift-giving, feasting and tribute to support a modern Aboriginal right to sell fish in the commercial marketplace – If leave is granted to Canada in the main application, would this signal the presence of issues of public importance such that the trial judge was correct in making an award of special costs to the respondents based on the public interest of the case.

The respondents are five B.C. Aboriginal bands who claim Aboriginal commercial fishing rights, and Aboriginal title to submerged lands.  The Supreme Court of British Columbia granted orders and declarations that: the respondents have Aboriginal rights to fish for any species within certain defined fishing territories and to sell that fish; Canada’s fisheries regime is a prima facie infringement of those rights (with the exception of harvesting clams and fishing for food, social and ceremonial purposes); and Canada has a duty to consult and negotiate with the respondents with respect to the manner in which their rights can be accommodated and exercised without jeopardizing legislative objectives and societal interests.  The claim for title was dismissed as unnecessary, and no declaration was made on whether any infringement of the rights was justified, pending a period of two years for the parties to consult and negotiate.  The Court of Appeal for British Columbia allowed Canada’s appeal in part to make variations to the Order, specifying that the right to fish and sell any species is “with the exception of geoduck”, and granting additional time for the parties to negotiate.  In a Supplementary Order, the Court of Appeal set aside the trial judge’s award of special costs in favour of the respondents.

The SCC in the Lax Kw'alaams case had already dealt with how a right should be characterized and the evidence required to ground a commercial right. The SCC referred to the Court of Appeal's decision in Ahousaht in what could be considered a less than positive light, but expressly stated that no opinion on the debate in the case was being expressed. Given the Lax Kw'alaams decision, the BC Court of Appeal will have to significantly change its approach to the analysis of Ahousaht , but whether that new analysis will lead to a different result, remains to be seen.


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