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ABORIGINAL STATUS AND RIGHTS - Duties of the Crown - Fair dealing and reconciliation

Monday, June 18, 2018 @ 8:47 AM  


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Action by five plaintiff First Nations for declaratory and related relief in respect of an aboriginal right to fish. This was the second part of a bifurcated proceeding in which the plaintiffs sought declaratory relief related to, among other things, an aboriginal right to a commercial fishery. In 2009, the first portion of the trial resulted in a declaration that the plaintiffs had an aboriginal right to fish for any species within specified fishing territories, including the right to sell that fish. In addition, the 2009 trial resulted in a declaration that the cumulative effect of Canada's fisheries management regime constituted a prima facie infringement of that right. An adjournment to facilitate consultation, negotiation and accommodation failed to result in an agreement. The parties thus returned to court in 2015 for the second portion of the trial. At issue was whether the prima facie infringements to the plaintiffs' aboriginal right to fish caused by Canada's legislative, regulatory and policy regimes were justified.

HELD: Action allowed in part. The scope and scale of the plaintiffs' right, as declared at trial, involved a right to fish for any species and to sell that fish in the context of a small-scale, artisanal, local, multi-species fishery, conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and involving wide community participation. Appropriate monitoring standards were justified and necessary for conservation and to protect the fishery for all participants, with some flexibilities required for accommodation purposes dependent upon the species involved. Although Canada did not require the plaintiffs' adherence to aspects of the regulations through specific accommodations and flexibilities related to the salmon fishery, the regulatory requirements were unjustified and remained unchanged, requiring either a new regulatory mechanism or formal protocol. With respect to salmon allocation policy, it was not justified to accord priority to the recreational fishery over the plaintiffs' aboriginal commercial fishery. However, Canada was justified in its precautionary approach to managing and allocating certain salmon species, and otherwise rejecting a total allowable catch that would disrupt the regular fishery and not lead to reconciliation. Given the specific context of the plaintiffs' small-boat fishery, the licensing and registration requirements on a per vessel and species-specific basis, the related transfer restrictions, and the licence allocations depending on limited entry based on previous catch were not justified. Moreover, accommodation of the plaintiffs' right could not be stymied by the necessity to obtain licences pursuant to the DFO mitigation policy, particularly if the policy prevented full realization of the right. A case existed for not applying the policy to chinook salmon based on the plaintiffs' extensive ancestral and present relationship with that fishery. On the other hand, the plaintiffs' commercial trade in species such as prawn, crab and sablefish was a recent phenomenon. Therefore, mitigation policy could not be declared inoperable in its entirety, but, in certain circumstances, was an unjustified barrier to accommodation. Consultation was thus required on a species by species basis on the application of mitigation policy and the necessity to obtain licences through that policy. The court rejected assumption of a supervisory role of the plaintiffs' fishery, advising that judicial review of related Ministerial decisions was the appropriate manner of recourse. Counsel was invited to discuss formulation and timing of a precise order capable of entry.

Ahousaht Indian Band v. Canada (Attorney General), [2018] B.C.J. No. 717, British Columbia Supreme Court, M.A. Humphries J., April 19, 2018. Digest No. TLD-June112018002