IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Ahousaht Indian Band and Nation v.  
Canada (Attorney General),  
2009 BCSC 1494  
Date: 20091103  
Docket: S033335  
Registry: Vancouver  
Between:  
And  
The Ahousaht, Ehattesaht, Hesquiaht, Hupacasath,  
Mowachaht/Muchalaht, Nuchatlaht, Tla-o-qui-aht, and  
Tseshaht Indian Bands and Nations et al.  
Plaintiffs  
The Attorney General of Canada and Her Majesty the Queen  
in Right of the Province of British Columbia  
Defendants  
Before: The Honourable Madam Justice Garson  
Corrected Judgment: Cover page was corrected  
on January 20, 2010  
Reasons for Judgment  
Counsel for the Plaintiffs:  
J.R. Rich  
F. M. Kirchner  
K.D. Lee  
K. Blomfield  
L.C. Glowacki  
K.A. Pozniak  
Counsel for Canada (Attorney General):  
M.P. Doherty  
T.D. Timberg  
J.E. Hoffman  
J.M. Mackenzie  
B.C. Marleau  
M.G. Palmer  
M.L.I. Lafond  
M.L. French  
K.E. Jamieson  
B.M. Caldwell  
H.A. Walford  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 2  
S. Sheina  
J.L. Wright  
J.B. Kohm  
G.S. Lilles  
Counsel for British Columbia (Attorney  
General):  
J.J.L. Hunter, Q.C.  
L.J. Mrozinski  
M. Akey  
J.L. Owen  
G. van Ert  
Date and Place of Trial:  
Ahousaht, B.C.  
May 1 – 2, 2006  
Vancouver, B.C.  
April 24 – 28,  
May 8 – 12; 15 – 18, 2006  
February 4 – 8; 11 – 15; 25 – 29,  
March 3 – 6; 10 – 14; 25 – 28; 31,  
April 1 – 4; 7 – 11; 21 – 24; 28; 29,  
May 5 – 9; 15, 16; 26 – 30,  
June 2 – 5; 16 – 19; 23 – 27,  
September 2 – 5; 8 – 12; 15 – 19;  
29; 30, 2008  
March 9-11; 16-20; 23-25, 2009  
Date and Place of Judgment:  
Vancouver, B.C.  
November 3, 2009  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 3  
TABLE OF CONTENTS  
Heading  
Paragraph  
I.  
INTRODUCTION.........................................................................  
OVERVIEW OF THE PARTIES’ POSITIONS.............................  
ISSUES.......................................................................................  
1
6
II.  
III.  
20  
IV.  
A.  
LEGAL FRAMEWORK...............................................................  
25  
26  
30  
34  
Aboriginal Rights – Overview of Legal Principles........................  
1.  
Is there an existing aboriginal right?.................................  
a.  
b.  
Characterizing the right..........................................  
Establishing the existence of the ancestral  
practice, custom or tradition advanced as  
supporting the claimed right...................................  
Integral to the distinctive culture of the claimant’s  
pre-contact society.................................................  
Continuity...............................................................  
36  
c.  
d.  
37  
43  
46  
48  
49  
50  
2.  
3.  
4.  
Has the aboriginal right been extinguished?.....................  
Has there been a prima facie infringement of the right?...  
Can the infringement be justified? ....................................  
B.  
Analytical Approach in this Case.................................................  
V.  
A.  
B.  
REVIEW OF THE EVIDENCE.....................................................  
Nature of the Evidence/Fact Finding Method ..............................  
Documentary and Expert Evidence.............................................  
55  
55  
64  
64  
67  
69  
73  
85  
89  
1.  
2.  
3.  
4.  
Explorer Records..............................................................  
Common Book of Historical Documents...........................  
Expert evidence................................................................  
Primary and secondary evidence .....................................  
C.  
D.  
Evidence of Trade and Features of Trade...................................  
Historical Chronology – Pre-contact to Present...........................  
•
•
•
•
•
Pre-contact period  
Early contact period – 1774-1778  
Maritime fur trade period – 1785-1818  
1820-1850  
Colonial period – 1850-1871  
Colony of Vancouver Island  
Colony of British Columbia  
Traders  
Establishment of non-aboriginal commercial fishery –  
1850s  
• 1860-1865  
• Early confederation period – 1871-1920  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 4  
VI.  
A.  
B.  
ABORIGINAL RIGHTS...............................................................  
Date of Contact ...........................................................................  
Pre-contact Practices and Way of Life ........................................  
90  
90  
97  
1.  
Review of Explorer Records.............................................  
100  
100  
112  
113  
135  
137  
138  
139  
151  
162  
175  
178  
180  
181  
a.  
b.  
c.  
d.  
e.  
f.  
Juan Pérez and The Santiago ...............................  
Bruno de Hezeta....................................................  
Captain James Cook .............................................  
James Strange.......................................................  
James Colnett........................................................  
John Meares..........................................................  
Don Estevan Josef Martínez – 1789......................  
José Mariano Moziño.............................................  
John Jewitt.............................................................  
Alexander Walker and the Strange Expedition ......  
Robert Haswell and The Columbia ........................  
Espinosa y Tello ....................................................  
Caamano ...............................................................  
g.  
h.  
i.  
j.  
k.  
l.  
m.  
3.  
4.  
Post-contact ethnographic evidence: Sproat and  
Drucker.............................................................................  
Other evidence about the way of life of the Nuu-chah-  
nulth at contact .................................................................  
182  
197  
202  
206  
209  
225  
229  
235  
238  
a.  
b.  
c.  
d.  
e.  
f.  
Dependence on fish...............................................  
Political organization..............................................  
Kinship...................................................................  
Feasting, potlatches and tribute.............................  
Warfare and raiding ...............................................  
Trade routes ..........................................................  
Gifts as a form of trade ..........................................  
g.  
C.  
D.  
Findings of Fact Concerning Fishing and Indigenous Trade at  
Contact........................................................................................  
Integrality of the Ancestral Practices to the Distinctive Culture of  
the Claimants’ Pre-contact Societies...........................................  
242  
284  
287  
304  
310  
310  
324  
337  
345  
355  
366  
385  
415  
421  
426  
1.  
Proper claimant group ......................................................  
a.  
b.  
Population decline .................................................  
History of each plaintiff ..........................................  
i.  
Ehattesaht...................................................  
Mowachaht/Muchalaht ................................  
Hesquiaht....................................................  
Ahousaht.....................................................  
Tla-o-qui-aht................................................  
ii  
iii.  
iv.  
v.  
2.  
3.  
Species specificity ............................................................  
Site specificity...................................................................  
E.  
Continuity with Modern Activity ...................................................  
1.  
2.  
1850 – 1871 Colonial period.............................................  
1871 – 1920 Early confederation period...........................  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 5  
3.  
1920 – 1960 mid-20th century – modern period...............  
436  
437  
F.  
Characterization of the Right.......................................................  
VII.  
A.  
ABORIGINAL TITLE...................................................................  
Introduction .................................................................................  
Description of Plaintiffs’ Claim.....................................................  
Duplication of Claim to Aboriginal Rights ....................................  
491  
491  
493  
498  
B.  
C.  
VIII. INFRINGEMENT.........................................................................  
503  
503  
505  
509  
511  
522  
524  
544  
A.  
B.  
C.  
D.  
E.  
F.  
G.  
Introduction .................................................................................  
Summary of Plaintiffs’ Position on Infringement..........................  
Summary of Canada’s Position on Infringement .........................  
Legal Principles...........................................................................  
Background to Regulation of the Fishery ....................................  
Historical Overview of the Fishery Regulation.............................  
Statutory and Regulatory Authority to Govern the Fishery ..........  
1.  
The Aboriginal Communal Fishing Licences  
Regulations ......................................................................  
555  
560  
561  
H.  
Regulation of Specific Fisheries..................................................  
1.  
2.  
Regulation of the salmon fishery ......................................  
Regulation of the groundfish fishery – halibut, sablefish,  
rockfish, lingcod and dogfish ............................................  
Regulation of the herring fishery.......................................  
Regulation of intertidal clams and geoducks ....................  
566  
578  
584  
588  
590  
595  
599  
602  
606  
611  
614  
615  
618  
619  
624  
626  
628  
631  
632  
637  
641  
642  
662  
666  
3.  
4.  
I.  
Aboriginal Participation in the WCVI Fishery...............................  
1.  
Shawn Dion Atleo.............................................................  
Stanley Michael Sam........................................................  
Francis Frank....................................................................  
Barney Williams Sr., known as Too-tah............................  
Robert Jack Dennis ..........................................................  
Julia Lucas .......................................................................  
Lillian Howard...................................................................  
Ray Williams.....................................................................  
Edward Jack.....................................................................  
Simon Lucas.....................................................................  
Benson Nookemis ............................................................  
Frank (Alex) Short ............................................................  
Christine Jules..................................................................  
Troy John .........................................................................  
John Frank .......................................................................  
Charles (Chuck) McCarthy ...............................................  
Barney Williams Jr............................................................  
Dr. Don Hall......................................................................  
2.  
3.  
4.  
5.  
6.  
7.  
8.  
9.  
10.  
11.  
12.  
13.  
14.  
15.  
16.  
17.  
18.  
J.  
K.  
L.  
Michelle James – Canada’s Fisheries Expert..............................  
Allen Wood – the Plaintiffs’ Fisheries Expert...............................  
Conclusion on Nuu-chah-nulth Participation in the Commercial  
Fishery ........................................................................................  
677  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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M. Cumulative Effects of Canada’s Fisheries Policy..........................  
687  
687  
690  
698  
1.  
2.  
3.  
Introduction.......................................................................  
Canada’s current fishing policy.........................................  
Special aboriginal programs.............................................  
a.  
Indian Fishermen’s Emergency Assistance  
Program (IFEAP) (1980-1982)...............................  
Aboriginal Cooperative Fisheries and Habitat  
Management Program (1994- )..............................  
Aboriginal Fisheries Strategy (AFS) (1992- ) .........  
AFS agreements with the Nuu-chah-nulth Tribal  
Council...................................................................  
Contribution Agreements and Project Funding  
Agreements (1991- )..............................................  
Fisheries Related Community Meetings and  
700  
b.  
702  
703  
c.  
d.  
707  
708  
e.  
f.  
Consultations.........................................................  
Aboriginal Fisheries Guardians (1992- ) ................  
Voluntary Licence Retirement Program (1992- )....  
Allocation Transfer Program (1994- ).....................  
Excess Salmon to Spawning Requirements  
709  
710  
711  
714  
g.  
h.  
i.  
j.  
(ESSR)...................................................................  
Pilot Sales Agreements..........................................  
Selective Fisheries First Nations Gear Purchase  
Program.................................................................  
AFS Review (2002)................................................  
Aboriginal Aquatic Resource and Oceans  
718  
722  
k.  
l.  
724  
725  
m.  
n.  
Management (AAROM) Program (2003) ...............  
Salmonoid Enhancement Program........................  
Pacific Integrated Commercial Fisheries Initiative  
(PICFI) (2007)........................................................  
New Emerging Fisheries Policies ..........................  
726  
727  
o.  
p.  
728  
732  
733  
734  
736  
737  
738  
742  
q.  
N.  
O.  
Conclusion in Respect to Special Aboriginal Programs...............  
Analysis of Infringement..............................................................  
1.  
2.  
3.  
Plaintiffs’ position on infringement ....................................  
Canada’s position on infringement ...................................  
Analysis............................................................................  
a.  
b.  
R. v. Adams and R. v. Marshall .............................  
Plaintiffs’ preferred means of exercising their  
aboriginal right .......................................................  
Undue hardship .....................................................  
Is the limitation unreasonable? ..............................  
Conclusion on infringement ...................................  
Clam fishery...........................................................  
Infringement analysis in respect to clams ..............  
FSC fishery............................................................  
764  
777  
782  
786  
792  
802  
805  
c.  
d.  
e.  
f.  
g.  
h.  
IX.  
A.  
JUSTIFICATION.........................................................................  
833  
834  
Legal Principles...........................................................................  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 7  
1.  
2.  
Compelling and substantial objective ...............................  
Consistent with fiduciary relationship................................  
837  
842  
852  
858  
860  
B.  
C.  
D.  
Canada’s Position on Justification...............................................  
The Plaintiffs’ Position on Justification ........................................  
Analysis.......................................................................................  
X.  
CROWN OBLIGATIONS CLAIM................................................  
REMEDIES .................................................................................  
DISPOSITION.............................................................................  
892  
895  
909  
XI.  
XII.  
APPENDIX A  
APPENDIX B  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 8  
I.  
INTRODUCTION  
The plaintiffs in this case are the Ehattesaht, the Mowachaht/Muchalaht, the  
[1]  
Hesquiaht, the Ahousaht, and the Tla-o-qui-aht, five aboriginal bands whose  
territories are located on the west coast of Vancouver Island (an area which I will call  
here the “WCVI”). This case turns primarily on the claim of these plaintiffs to an  
aboriginal right to fish on a commercial basis. They assert that at the time of contact  
with Europeans, their ancestral communities fished and traded fish and these  
activities were intrinsic aspects of their culture. They contend that those fishing and  
trading activities found their modern-day aboriginal rights to fish commercially, and  
that Canada’s fisheries regime unjustifiably infringes those rights. They claim that  
they are largely excluded from the WCVI commercial fishery. The plaintiffs do not  
seek rights to fish free from government regulation, but say such regulation must  
recognize their aboriginal rights, which at the moment it fails to do.  
[2]  
Canada denies that the plaintiffs possess an aboriginal right to trade or to sell  
fish. In the alternative, Canada denies that its legislation infringes any aboriginal  
rights that the plaintiffs do possess. Further, in the alternative, Canada says that if  
there is any such infringement it is justified by its need to conserve and to manage  
the fishery in a sustainable way.  
[3]  
The plaintiffs additionally claim aboriginal title to the submerged lands  
extending 100 nautical miles into the Pacific Ocean from the foreshore of their dry  
land territories. They do not seek title to dry land in this action. Appendix A to these  
Reasons, replicated from the plaintiffs’ pleadings, is a map of the WCVI depicting the  
territories over which the plaintiffs claim these aboriginal rights and title. That map  
depicts the claims of all 11 original plaintiffs in this action. Six of those plaintiffs  
discontinued their actions or will be proceeding in a subsequent phase of this action.  
I will refer to the five bands with whose claims I deal here, and their members,  
collectively, as “the Nuu-chah-nulth” or “the Nuu-chah-nulth people”.  
[4]  
During the course of the trial, the plaintiffs (by which I mean the five plaintiffs  
referred to above) withdrew the several claims they made directly against the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 9  
Province of British Columbia. By the end of evidence, the Province’s only remaining  
interest was with respect to the title claim. At the commencement of closing  
arguments, however, the Province elected to make no submissions in respect to that  
claim or at all. All the claims are defended by Canada. Any references I make to  
“the parties” in these Reasons are references to the five plaintiffs and Canada only.  
[5]  
I summarize the parties’ positions below. I then identify the broad issues this  
Court must resolve and outline the nature of the evidence in the case. I then set out  
a brief overview of the legal framework applicable to the issues. The balance of this  
judgment is divided into four main sections: aboriginal rights; aboriginal title;  
infringement; and justification.  
II.  
OVERVIEW OF THE PARTIES’ POSITIONS  
[6]  
The plaintiffs seek declarations of both aboriginal rights and title in these  
proceedings.  
[7]  
The plaintiffs claim that before and at the time of contact with Europeans,  
their predecessors (collectively, the “Nuu-chah-nulth Nations”) existed as organized  
and self-governing social and political entities. They claim that the Nuu-chah-nulth  
Nations are culturally related groups that share common distinctive features  
including language, customs, practices, traditions, laws, economies, spiritual beliefs  
and culture. After British Columbia’s entry into Confederation in 1871, each of the  
Nuu-chah-nulth Nations was constituted as a band under the predecessor of the  
Indian Act, R.S.C. 1985, c. I-5, and, today, each band is the legal representative of  
its predecessor Nation and the lawful holder of the collective aboriginal rights and  
title of that Nation.  
[8]  
The plaintiffs alternatively plead that before contact and before the assertion  
of British sovereignty, the Nuu-chah-nulth Nations existed together in a single  
aboriginal nation, the Nuu-chah-nulth Nation. The evidence tendered at trial does  
not support the pleading that the plaintiffs’ ancestors were part of one single Nuu-  
chah-nulth Nation. The plaintiffs did not press this argument in final submissions. I  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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conclude that this claim is contrary to the evidence, and I do not consider it further in  
these Reasons.  
[9]  
The plaintiffs claim that from a time prior to European contact and continuing  
to the present, they owned, used and occupied territories within an area on the  
WCVI and extending 100 nautical miles into the Pacific Ocean. This area is set out  
on the map attached as Appendix A to these Reasons, as are the approximate  
boundaries of the specific territories claimed by each individual plaintiff. The  
plaintiffs’ claimed territories are set out with great particularity in Exhibit 26, the Base  
Map Book.  
[10] The plaintiffs claim that prior to and at contact, the Nuu-chah-nulth were a  
fishing people whose way of life was characterized by trade, including trade in fish.  
They submit that these pre-contact practices translate into modern aboriginal rights,  
which they plead as follows:  
a.  
To harvest all species of fisheries resources from within their territories,  
or portions thereof, and, in the alternative, one or more of those  
species;  
b.  
To harvest those fisheries resources for any purposes including for  
food purposes, social purposes, ceremonial purposes, trade purposes,  
purposes of exchange for money or other goods, commercial  
purposes, purposes of sustaining the plaintiff communities, or one or  
more of those purposes; and  
c.  
To sell, trade or exchange those fisheries resources:  
i.  
on a commercial scale; or  
ii.  
iii.  
in the alternative, to sustain their communities; or  
in the further alternative, for money or other goods.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[11] The plaintiffs additionally claim aboriginal title to the fishing territories within  
their respective territories. The fishing territories comprise, for each plaintiff, a “test  
case” river, the foreshore areas and bodies of water below the low water mark and  
extending 100 nautical miles into the Pacific Ocean. The plaintiffs do not seek  
declarations of title to the upland areas of their territories. Further, they ask the  
Court to define the content of their aboriginal title only to the extent necessary to  
establish rights to harvest and sell fisheries resources incident to that title.  
[12] The plaintiffs submit that the aboriginal rights and title they claim have not  
been extinguished, and are recognized and affirmed by s. 35(1) of the Constitution  
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  
[13] The plaintiffs further claim that their aboriginal rights to fish, including those  
which are a component of title, have been infringed by the restrictions and  
prohibitions placed on their fishing activities by operation of both Canada’s statutory  
fisheries regime and the Department of Fisheries and Ocean’s (the “DFO”) policy  
regime. More specifically, they contend that the Fisheries Act, R.S.C. 1985, c. F-14,  
and regulations promulgated thereunder infringe their fishing rights on their face, as  
they impose a general prohibition against fishing and selling fish without a licence,  
and then place authority to issue licences within the absolute discretion of the  
Minister of Fisheries and Oceans (the “Minister”). By subjecting the exercise of their  
constitutional rights to the unfettered discretion of the Minister, the legislative  
scheme, they say, infringes those rights. With respect to the policy regime, the  
plaintiffs submit that the cumulative effect of DFO policy has been to severely limit  
the fishing opportunities available to the Nuu-chah-nulth, in particular, commercial  
opportunities. The plaintiffs say that they have been forced out of the fishery and  
are unable to exercise their aboriginal rights, with devastating consequences for  
their communities. The plaintiffs submit that Canada is unable to justify these  
infringements of their aboriginal rights.  
[14] In the alternative to their aboriginal rights and title claims, the plaintiffs assert  
the existence of a fiduciary duty on the part of Canada to ensure that the Nuu-chah-  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 12  
nulth have access to fisheries resources for commercial purposes in order that they  
may earn their livelihoods and sustain their communities through the sale of those  
resources.  
[15] Canada responds that the plaintiffs have failed to establish that they are the  
successor collectives to the aboriginal groups that historically possessed aboriginal  
rights and title. For this reason alone, their claims must fail.  
[16] Canada further submits that none of the plaintiffs have established that they  
possess aboriginal rights to harvest, for any of the reasons they assert, all species of  
fisheries resources in their respective territories. They have also failed to establish  
aboriginal rights to sell any species of fisheries resources harvested in their  
respective territories, whether on a commercial scale, for the purposes of sustaining  
their communities, or in exchange for money or other goods. Canada contends that  
these rights cannot be proven because no such practices existed at the time of  
contact; alternatively, any such practices were not integral to the distinctive cultures  
of the plaintiffs; or, in the further alternative, there is no continuity between the pre-  
contact fishing practices of the aboriginal peoples of the WCVI and the modern  
activities alleged to be the modern iteration of those practices.  
[17] With respect to aboriginal title, Canada submits that the plaintiffs’ claims are  
not supported at law or on the evidence. As a matter of law, it says, aboriginal title  
does not subsist over submerged lands. Further, on the facts, the plaintiffs did not  
occupy their fishing territories to the extent necessary to establish aboriginal title.  
Canada additionally submits that the fishing rights that the plaintiffs claim as an  
incident to title do not exist as a component of any aboriginal title which may be  
found to exist with respect to the submerged lands in question.  
[18] In the event this Court finds aboriginal rights or title, Canada submits that  
there has been no meaningful diminution, and, accordingly, no prima facie  
infringement, of those rights or title. Alternatively, any infringement is justified given  
that Canada’s fisheries legislation and policies are intended to fulfil a variety of  
objectives, including: conservation of the fisheries; promotion of economic and  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 13  
regional fairness; promotion of fairness amongst First Nation users of the fisheries;  
and, promotion of the sustainable development of the fisheries.  
[19] With respect to the plaintiffs’ fiduciary duty claim, Canada admits the  
existence of a fiduciary relationship but denies the existence of a fiduciary duty to  
ensure that the plaintiffs have access to fisheries resources for commercial purposes  
in order to earn a livelihood and sustain their communities through the sale of those  
resources. Alternatively, if such a duty exists, Canada says that it has not breached  
that duty.  
III.  
ISSUES  
[20] This case raises four main issues.  
[21] The first issue is whether the plaintiffs have an aboriginal right to fish and to  
sell fish. This part of the plaintiffs’ claim requires the plaintiffs to prove that at 1774,  
the date of first contact with Europeans, they fished and traded fish (in the absence  
of a conventional monetary system). The evidence before the Court on this issue  
consists primarily of journals, logs, and diaries of European explorers and traders, as  
well as other anthropological and ethnographic evidence. One of the issues  
confronting the Court is the extent to which the Court can infer from descriptions of  
post-contact activity that those same activities occurred before contact. If I conclude  
that the plaintiffs have proven the existence of pre-contact trade, I must then  
characterize the aboriginal right and consider the scope or quantification of that right.  
[22] A second issue is whether the plaintiffs have established aboriginal title to  
their fishing territories and that they hold fishing rights as an economic component of  
that title.  
[23] If I conclude that the plaintiffs have proven aboriginal fishing rights, the next  
issue is to determine whether Canada’s fisheries regime prima facie infringes those  
rights.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 14  
[24] Finally, if the plaintiffs prove prima facie infringement, then the burden shifts  
to Canada to prove that the infringement is justified. One example of a justificatory  
factor is the need for conservation. I must consider the justificatory factors  
advanced by Canada to determine whether the infringement can be justified.  
IV.  
LEGAL FRAMEWORK  
[25] I set out a fairly brief overview of the legal principles that govern an aboriginal  
rights claim in order to provide context for the review of the evidence and the  
analysis to follow. I will expand upon the legal concepts as necessary in subsequent  
sections of these Reasons.  
A.  
Aboriginal Rights – Overview of Legal Principles  
[26] Any analysis of aboriginal rights must begin with s. 35(1) of the Constitution  
Act, 1982:  
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of  
Canada are hereby recognized and affirmed.  
[27] Section 35(1) provides a constitutional framework for the protection of the  
distinctive cultures of aboriginal peoples so that their prior occupation of North  
America can be recognized and reconciled with the sovereignty of the Crown: R. v.  
Van der Peet, [1996] 2 S.C.R. 507, at para. 30; R. v. Sappier; R. v. Gray, 2006 SCC  
54, [2006] 2 S.C.R. 686, at para. 22. In Van der Peet, Lamer C.J. described the  
basis for the doctrine of aboriginal rights in these terms, at para. 30:  
In my view, the doctrine of aboriginal rights exists, and is recognized and  
affirmed by s. 35(1) because of one simple fact: when Europeans arrived in  
North America, aboriginal peoples were already here, living in communities  
on the land, and participating in distinctive cultures, as they had done for  
centuries.  
[Emphasis in original]  
[28] In R. v. Sparrow, [1990] 1 S.C.R. 1075, the first case to consider s. 35(1), the  
Supreme Court developed the basic analytical framework for considering an  
aboriginal rights claim:  
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a.  
b.  
c.  
d.  
Is there an existing aboriginal right?  
Has the aboriginal right been extinguished?  
Has there been a prima facie infringement of the right?  
Can that infringement be justified?  
[29] Beginning with Van der Peet, the Court has steadily developed the  
jurisprudence relating to aboriginal rights as first set out in Sparrow.  
1.  
Is there an existing aboriginal right?  
[30] Aboriginal rights fall along a spectrum, the cornerstone of which is their  
degree of connection to the land. In Delgamuukw v. British Columbia, [1997] 3  
S.C.R. 1010, Lamer C.J. explained, at para. 138:  
... At the one end, there are those aboriginal rights which are practices,  
customs and traditions that are integral to the distinctive aboriginal culture of  
the group claiming the right. However, the “occupation and use of the land”  
where the activity is taking place is not “sufficient to support a claim of title to  
the land” (at para. 26 [of Adams] (emphasis in original)). Nevertheless, those  
activities receive constitutional protection. In the middle, there are activities  
which, out of necessity, take place on land and indeed, might be intimately  
related to a particular piece of land. Although an aboriginal group may not be  
able to demonstrate title to the land, it may nevertheless have a site-specific  
right to engage in a particular activity. I put the point this way in Adams, at  
para. 30:  
Even where an aboriginal right exists on a tract of land to which the  
aboriginal people in question do not have title, that right may well be  
site specific, with the result that it can be exercised only upon that  
specific tract of land. For example, if an aboriginal people  
demonstrates that hunting on a specific tract of land was an integral  
part of their distinctive culture then, even if the right exists apart from  
title to that tract of land, the aboriginal right to hunt is nonetheless  
defined as, and limited to, the right to hunt on the specific tract of land.  
[Emphasis in original]  
At the other end of the spectrum, there is aboriginal title itself. As Adams  
makes clear, aboriginal title confers more than the right to engage in site-  
specific activities which are aspects of the practices, customs and traditions  
of distinctive aboriginal cultures. Site-specific rights can be made out even if  
title cannot. What aboriginal title confers is the right to the land itself.  
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[31] As noted in this passage, an aboriginal right, excluding title, is an activity that  
is an element of a practice, custom or tradition integral to the distinctive culture of  
the aboriginal group claiming the right. This was the definition enunciated by the  
Supreme Court in Van der Peet. In that decision, the Court set out a multi-tiered  
analysis for considering the existence of an aboriginal right:  
a.  
b.  
characterizing the claimed aboriginal right;  
establishing the existence of the ancestral practice, custom or  
tradition advanced as supporting the claimed right;  
c.  
d.  
determining whether the ancestral practices, customs or  
traditions were integral to the distinctive culture of the claimant’s  
pre-contact society; and  
determining whether reasonable continuity exists between the  
pre-contact practice and the contemporary claim.  
[32] In assessing a claim for the existence of an aboriginal right, the Court must be  
sensitive to, and take into account, the perspective of the aboriginal claimants: Van  
der Peet, at para. 49. However, since aboriginal rights exist within the legal system  
of Canada, that perspective must be framed in terms cognizable to the Canadian  
legal and constitutional structure.  
[33] I will elaborate upon each of these four aspects of the analysis.  
a.  
Characterizing the right  
[34] The first step is to characterize the right claimed. A key component in  
analyzing an aboriginal rights claim, characterization is guided by three factors  
(Van der Peet, at para. 53):  
a.  
the nature of the action which the applicant claims was done  
pursuant to an aboriginal right;  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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b.  
c.  
the nature of the governmental regulation, statute or action  
being impugned; and  
the pre-contact practice, custom or tradition being relied upon to  
established the right.  
[35] Characterization of the claim is important because whether or not the  
evidence will support the claim will depend in large measure on what that evidence  
is being called to support: Van der Peet, at para. 51.  
b.  
Establishing the existence of the ancestral practice, custom or  
tradition advanced as supporting the claimed right  
[36] This stage of the analysis requires the Court to determine whether, as a  
question of fact, the evidence establishes the ancestral practice, custom or tradition  
supporting the claimed right. The relevant time frame is the period prior to contact  
with Europeans: Van der Peet, at para. 60; Sappier, at para. 34. As Lamer C.J.  
explained in Van der Peet, at para. 60, “[b]ecause it is the fact that distinctive  
aboriginal societies lived on the land prior to the arrival of Europeans that underlies  
the aboriginal rights protected by s. 35(1), it is to that pre-contact period that the  
Courts must look in identifying aboriginal rights”.  
c.  
Integral to the distinctive culture of the claimant’s pre-contact  
society  
[37] The Court must also determine whether the activity claimed to be an  
aboriginal right is part of a practice, custom or tradition that was an integral part of  
the distinctive culture of the aboriginal community asserting the right prior to contact  
with Europeans. The rationale for this approach was described in Van der Peet, at  
para. 56:  
This aspect of the integral to a distinctive culture test arises from the fact that  
aboriginal rights have their basis in the prior occupation of Canada by  
distinctive aboriginal societies. To recognize and affirm the prior occupation  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 18  
of Canada by distinctive aboriginal societies it is to what makes those  
societies distinctive that the court must look in identifying aboriginal rights.  
[Emphasis added]  
[38] To be integral, a practice, custom or tradition must be a central and significant  
part of the society’s distinctive culture. It cannot be merely incidental to the society’s  
identity. The Supreme Court has moved away from the notion that to be integral, the  
practice must lie at the core of the society’s identity. In Mitchell v. M.N.R., 2001  
SCC 33, [2001] 1 S.C.R. 911, it was held that it was those practices that go to the  
core of the pre-contact aboriginal society that will be protected as aboriginal rights.  
At para. 12, McLachlin C.J. wrote that a practice, custom or tradition would be  
integral to a distinctive aboriginal culture in the sense that:  
… it distinguished or characterized their traditional culture and lay at the core  
of the peoples’ identity. It must be a “defining feature” of the aboriginal  
society, such that the culture would be “fundamentally altered” without it. It  
must be a feature of “central significance” to the peoples’ culture, one that  
“truly made the society what it was” (Van der Peet, supra, at paras. 54-59  
[emphasis in original])  
[39] However, in Sappier, the Supreme Court’s most recent consideration of  
aboriginal rights, the Court rejected this articulation of the standard. As  
Bastarache J. wrote, at paras. 40-41:  
… Although intended as a helpful description of the Van der Peet test, the  
reference in Mitchell to a “core identity” may have unintentionally resulted in a  
heightened threshold for establishing an aboriginal right. For this reason, I  
think it necessary to discard the notion that the pre-contact practice upon  
which the right is based must go to the core of the society’s identity, i.e. its  
single most important defining character. This has never been the test for  
establishing an aboriginal right. This Court has clearly held that a claimant  
need only show that the practice was integral to the aboriginal society’s pre-  
contact distinctive culture.  
The notion that the pre-contact practice must be a “defining feature” of the  
aboriginal society, such that the culture would be “fundamentally altered”  
without it, has also served in some cases to create artificial barriers to the  
recognition and affirmation of aboriginal rights.  
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Page 19  
[40] Bastarache J. went on to explain what was meant by “distinctive culture”.  
After acknowledging the challenge courts have encountered in applying this concept,  
he wrote, at para. 45:  
The aboriginal rights doctrine, which has been constitutionalized by s. 35,  
arises from the simple fact of prior occupation of the lands now forming  
Canada. The “integral to a distinctive culture” test must necessarily be  
understood in this context. As L’Heureux-Dubé J. explained in dissent in Van  
der Peet, “[t]he ‘distinctive aboriginal culture’ must be taken to refer to the  
reality that, despite British sovereignty, aboriginal people were the original  
organized society occupying and using Canadian lands: …” The focus of the  
Court should therefore be on the nature of this prior occupation. What is  
meant by “culture” is really an inquiry into the pre-contact way of life of a  
particular aboriginal community, including their means of survival, their  
socialization methods, their legal systems, and, potentially, their trading  
habits. The use of the word “distinctive” as a qualifier is meant to incorporate  
an element of aboriginal specificity. However, “distinctive” does not mean  
“distinct”, and the notion of aboriginality must not be reduced to “racialized  
stereotypes of Aboriginal peoples” …  
[41] Consistent with this reasoning, Bastarache J. held that practices undertaken  
for survival purposes may be considered integral to the distinctive culture of an  
aboriginal people.  
[42] Courts have also considered the relationship of a practice to a particular  
geographic site when considering its integrality to the aboriginal society: Mitchell, at  
paras. 55-56.  
d.  
Continuity  
[43] In order for an activity to be recognized as an aboriginal right, the present  
practice, custom or tradition must have reasonable continuity with the practices,  
customs and traditions that existed prior to contact. The concept of continuity  
ensures that the modern manifestation of the pre-contact practice can evolve,  
though within limits. As Lamer C.J. wrote, at para. 64 of Van der Peet:  
The concept of continuity is, in other words, the means by which a “frozen  
rights” approach to s. 35(1) will be avoided. Because the practices, customs  
and traditions protected by s. 35(1) are ones that exist today, subject only to  
the requirement that they be demonstrated to have continuity with the  
practices, customs and traditions which existed pre-contact, the definition of  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 20  
aboriginal rights will be one that, on its own terms, prevents those rights from  
being frozen in pre-contact times. The evolution of practices, customs and  
traditions into modern forms will not, provided that continuity with pre-contact  
practices, customs and traditions is demonstrated, prevent their protection as  
aboriginal rights.  
[44] Although the nature of the practice which founds the aboriginal right claim  
must be considered in the context of the pre-contact distinctive culture of the  
particular aboriginal community, the nature of the right must be determined in light of  
present day circumstances: Sappier at para. 48. Thus, the practice and its  
associated uses must be allowed to evolve; otherwise, rights would be frozen in their  
pre-contact form. As McLachlin C.J. explained in R. v. Marshall; R. v. Bernard, 2005  
SCC 43, [2005] 2 S.C.R. 220 at para. 25, “Logical evolution means the same sort of  
activity, carried on in the modern economy by modern means.” In the factual context  
of Sappier, for instance, the Court held that the right to harvest wood for the  
construction of temporary shelters must be allowed to evolve into a right to harvest  
wood by modern means to be used in the construction of modern dwellings.  
[45] Continuity also requires that claimants establish a connection with the  
ancestral group upon whose practices they rely to assert an aboriginal right:  
Marshall and Bernard, at para. 67.  
2.  
Has the aboriginal right been extinguished?  
[46] The onus of proving that an aboriginal right has been extinguished lies upon  
the Crown. There must be strict proof of the fact of extinguishment and evidence of  
a clear and plain intention on the part of the Crown to extinguish the right: R. v.  
Badger, [1996] 1 S.C.R. 771 at para. 41. The mere fact that a right has been  
regulated by the government and its exercise subject to terms and conditions is not  
sufficient to extinguish the right: Sparrow, at p. 1097.  
[47] In this case, Canada does not assert that the aboriginal rights claimed have  
been extinguished. There is also no evidence of extinguishment. Accordingly, I  
make the finding that, to the extent the plaintiffs prove aboriginal rights, those rights  
have not been extinguished.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
3. Has there been a prima facie infringement of the right?  
[48] Once it has been determined that an aboriginal right has not been  
Page 21  
extinguished, it then falls to the claimant to prove that the government has infringed  
that right. As set out in Sparrow, the test for infringement asks whether the  
impugned government action has the effect of interfering with an existing aboriginal  
right. If it does, it constitutes a prima facie infringement of s. 35(1). Questions that  
guide the analysis as to whether an impugned government action has the effect of  
interfering with an existing aboriginal right include:  
a.  
b.  
c.  
Is the limitation unreasonable?  
Does the limitation impose undue hardship?  
Does the regulation deny to the holders of the right their  
preferred means of exercising that right?  
4.  
Can the infringement be justified?  
[49] Once a prima facie infringement has been established, the onus shifts to the  
Crown to demonstrate that the infringement is justifiable. Sparrow lays out a two-  
stage analysis with respect to justification:  
a.  
The infringement of the aboriginal right must be in furtherance of  
a legislative objective that is compelling and substantial.  
b.  
The infringement must also be consistent with the special  
fiduciary relationship that exists between the Crown and  
aboriginal peoples.  
B.  
Analytical Approach in this Case  
[50] Much of the aboriginal rights jurisprudence summarized above has developed  
in the context of regulatory prosecutions in which the existence of an aboriginal right  
is raised as a defence to a charge. The analyses set out in the authorities are not  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 22  
always easily applied in a civil proceeding for declaratory relief, such as the case at  
bar. One particular area of challenge is with respect to characterizing aboriginal  
rights.  
[51] Where the existence of an aboriginal right is raised as a defence to a  
regulatory prosecution, as it was in Van der Peet, it is logical that the actus reus of  
the offence and the governmental statute or regulation that has been engaged will  
largely shape the characterization of the aboriginal right being claimed. After all, the  
purpose of the analysis is to determine whether the activities in which the claimants  
were engaged come within the constitutionally protected ambit of s. 35(1). The logic  
of that approach is less apparent, however, in a civil proceeding. In this latter  
context, it is necessarily the pleadings that will govern the nature of the plaintiffs’  
claim: Lax Kw’alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447,  
[2008] B.C.J. No. 652.  
[52] In Marshall and Bernard, McLachlin C.J. discussed in general terms how  
courts should approach a claim for an aboriginal right, at para. 48:  
The Court’s task in evaluating a claim for an aboriginal right is to examine the  
pre-sovereignty aboriginal practice and translate that practice, as faithfully  
and objectively as it can, into a modern legal right. The question is whether  
the aboriginal practice at the time of assertion of European sovereignty (not,  
unlike treaties, when a document was signed) translates into a modern legal  
right, and if so, what right? This exercise involves both aboriginal and  
European perspectives. ...  
[53] Marshall and Bernard was a treaty rights and aboriginal title case, thus the  
reference to the assertion of sovereignty as the relevant moment in the passage  
above. Nevertheless, the approach of examining the ancestral practice and  
translating it into a modern legal right is well suited to civil cases, particularly that at  
bar, given that the plaintiffs plead their aboriginal fishing rights along a spectrum. It  
is also consistent with the Supreme Court’s approach in R. v. Gladstone, [1996] 2  
S.C.R. 723, and R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, where the  
Court turned first to consider whether the evidence established a lesser fishing right  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 23  
and proposed to consider a broader commercial right only if that lesser right were  
established.  
[54] The Supreme Court in Van der Peet set out an analytical framework for  
considering whether a claimant has proved the existence of an aboriginal right. I  
propose to modify the analysis slightly to reflect the nature of the present action, and  
will approach it in the following way. First, I will review the evidence and make  
findings of fact with respect to the existence and nature of ancestral Nuu-chah-nulth  
fishing and trading practices. Next I will determine whether any such practices were  
integral to the distinctive culture of pre-contact Nuu-chah-nulth society. Included  
here will be discussion of the geographical ambit of those practices and whether  
they were specific to particular marine species. I will also here address whether the  
plaintiffs are the proper claimant groups. I will then consider whether reasonable  
continuity exists between the plaintiffs’ pre-contact and contemporary practices.  
Finally, I will translate the ancestral practices into modern rights or, in other words,  
characterize the aboriginal rights.  
V.  
A.  
REVIEW OF THE EVIDENCE  
Nature of the Evidence/Fact Finding Method  
[55] The task facing courts in aboriginal rights and title cases is one usually  
reserved for historians, anthropologists, archaeologists, and ethnographers. Courts  
have sufficient difficulty determining what happened a few months or years ago,  
never mind a few centuries ago. The main fact that the plaintiffs seek to prove is  
that they traded fish prior to contact with European culture, and that that activity is  
analogous to the modern activity of commercial fishing. The majority of the evidence  
at trial concerning the aboriginal rights claim was led to prove this fact.  
[56] Before analyzing that evidence, I propose to review the legal principles that  
govern proof of facts in aboriginal rights and title cases, and explain the evidentiary  
principles that govern the fact finding process. I will also discuss the sources and  
types of evidence tendered, and how I propose to use it.  
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Page 24  
[57] First, to repeat what is trite, courts have recognized the inherent challenges in  
proving aboriginal claims which require proof of facts from long ago: Delgamuukw,  
at paras. 80 and 82; and Mitchell, at paras. 27 and 29.  
[58] In Van der Peet, at para. 62, Lamer C.J. acknowledged “the next to  
impossible task of producing conclusive evidence from pre-contact times about the  
practices, customs and traditions of their community.” He recognized that the  
burden of proof must not be applied in such a way as to conflict with the spirit and  
intention of s. 35(1) of the Constitution Act, 1982. At para. 68, he wrote:  
[A] court should approach the rules of evidence, and interpret the evidence  
that exists, with a consciousness of the special nature of aboriginal claims,  
and of the evidentiary difficulties in proving a right which originates in times  
where there were no written records of the practices, customs and traditions  
engaged in.  
[59] The Supreme Court of Canada has also held that owing to the difficulties in  
proving aboriginal rights, courts must be prepared to draw inferences from what  
evidence is available:  
Flexibility is important when engaging in the Van der Peet analysis because  
the object is to provide cultural security and continuity for the particular  
aboriginal society. This object gives context to the analysis. For this reason,  
courts must be prepared to draw necessary inferences about the existence  
and integrality of a practice when direct evidence is not available.  
Sappier, at para. 33  
[60] This flexible approach to the evidence does not, however, negate the  
operation of general evidentiary principles. In Mitchell, McLachlin C.J. stated, at  
para. 38:  
… it must be emphasized that a consciousness of the special nature of  
aboriginal claims does not negate the operation of general evidentiary  
principles. While evidence adduced in support of aboriginal claims must not  
be undervalued, neither should it be interpreted or weighed in a manner that  
fundamentally contravenes the principles of evidence law …  
[61] McLachlin C.J. commented upon the evidentiary concerns in proving  
aboriginal rights beginning at para. 27:  
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27  
Aboriginal right claims give rise to unique and inherent evidentiary  
difficulties. Claimants are called upon to demonstrate features of their pre-  
contact society, across a gulf of centuries and without the aid of written  
records. Recognizing these difficulties, this Court has cautioned that the  
rights protected under s. 35(1) should not be rendered illusory by imposing an  
impossible burden of proof on those claiming this protection (Simon v. The  
Queen, [1985] 2 S.C.R. 387, at p. 408). Thus in Van der Peet, supra, the  
majority of this Court stated that “a court should approach the rules of  
evidence, and interpret the evidence that exists, with a consciousness of the  
special nature of aboriginal claims, and of the evidentiary difficulties in  
proving a right which originates in times where there were no written records  
of the practices, customs and traditions engaged in” (para. 68).  
28  
This guideline applies both to the admissibility of evidence and  
weighing of aboriginal oral history (Van der Peet, supra; Delgamuukw, supra,  
at para. 82).  
(a)  
Admissibility of Evidence in Aboriginal Right Claims  
29  
Courts render decisions on the basis of evidence. This fundamental  
principle applies to aboriginal claims as much as to any other claim. Van der  
Peet and Delgamuukw affirm the continued applicability of the rules of  
evidence, while cautioning that these rules must be applied flexibly, in a  
manner commensurate with the inherent difficulties posed by such claims and  
the promise of reconciliation embodied in s. 35(1). This flexible application of  
the rules of evidence permits, for example, the admissibility of evidence of  
post-contact activities to prove continuity with pre-contact practices, customs  
and traditions (Van der Peet, supra, at para. 62) and the meaningful  
consideration of various forms of oral history (Delgamuukw, supra).  
30  
The flexible adaptation of traditional rules of evidence to the challenge  
of doing justice in aboriginal claims is but an application of the time-honoured  
principle that the rules of evidence are not “cast in stone, nor are they  
enacted in a vacuum” (R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 487).  
Rather, they are animated by broad, flexible principles, applied purposively to  
promote truth-finding and fairness. The rules of evidence should facilitate  
justice, not stand in its way. Underlying the diverse rules on the admissibility  
of evidence are three simple ideas. First, the evidence must be useful in the  
sense of tending to prove a fact relevant to the issues in the case. Second,  
the evidence must be reasonably reliable; unreliable evidence may hinder the  
search for the truth more than help it. Third, even useful and reasonably  
reliable evidence may be excluded in the discretion of the trial judge if its  
probative value is overshadowed by its potential for prejudice.  
…
37  
… Thus, it is imperative that the laws of evidence operate to ensure  
that the aboriginal perspective is “given due weight by the courts.”  
…
39  
There is a boundary that must not be crossed between a sensitive  
application and a complete abandonment of the rules of evidence. As Binnie  
J. observed in the context of treaty rights, “[g]enerous rules of interpretation  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 26  
should not be confused with a vague sense of after-the-fact largesse” (R. v.  
Marshall, [1999] 3 S.C.R. 456, at para. 14). …  
[62] From the foregoing authorities, I draw the following evidentiary principles that  
have special application in cases involving claims to aboriginal rights and title:  
• As in all civil cases, the burden of proof rests on the plaintiff. The material  
facts must be proven on a balance of probabilities, with due regard to the  
rules of evidence.  
• While evidence must be sufficiently clear, convincing, and cogent to  
satisfy the balance of probabilities test, it may be necessary to draw  
inferences where appropriate, such as inferring from post-contact activity  
that the same activity took place before contact.  
• Traditional rules of evidence regarding the admissibility, reliability and  
weight of evidence continue to apply. However, the Court must also  
recognize the evidentiary challenges inherent in proving events and  
circumstances that took place hundreds of years ago, and apply those  
rules flexibly in a manner that is consistent with the spirit and intent of  
s. 35(1) of the Constitution Act, 1982.  
• Finally, the Court must be sensitive to not only the European perspective  
but also the aboriginal perspective when examining evidence about  
aboriginal peoples as recorded by Europeans.  
[63] I now turn to the different types of evidence relied upon by the parties to  
prove the historical and pre-historical facts in support or defence of the plaintiffs’  
claims to aboriginal rights and title.  
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Page 27  
B.  
1.  
Documentary and Expert Evidence  
Explorer Records  
[64] The plaintiffs and Canada tendered into evidence a collection of documents  
that have come to be known in these proceedings as the “Explorer Records”.  
Pursuant to an earlier mid-trial ruling (2008 BCSC 768), these documents are in  
evidence for the prima facie truth of their contents. I concluded in that ruling that an  
individual Explorer Record could be admitted into evidence if it was referred to by an  
expert in a manner sufficient to permit the Court to make a determination as to the  
threshold reliability, not weight, of the record. It was not necessary, I held, for the  
expert to adopt the entirety of a document as truthful; rather, it was sufficient that the  
expert’s testimony about the circumstances of the making of the record was such  
that the Court could make a determination as to its threshold reliability. If the  
document met that threshold, the whole of the document could be admitted into  
evidence.  
[65] In accordance with that ruling, the parties tendered the collection of Explorer  
Records into evidence, each of those documents having been referred to and  
identified by one or more of the experts.  
[66] The Explorer Records span the period from 1774 to approximately 1900.  
They include records created by the earliest explorers and maritime fur traders to  
arrive on the WCVI. The records document their observations about the aboriginal  
groups with whom they interacted. Among the documents, for example, are the logs  
of Captain James Cook and his officers recording their observations upon their  
arrival at Nootka Sound in 1778. The Explorer Records represent the only written  
evidence regarding the earliest interactions between Europeans (and some  
Americans) and aboriginal groups on the WCVI.  
2.  
Common Book of Historical Documents  
[67] The parties also tendered a further collection of historical documents,  
primarily government records, which span the period from approximately 1842 to  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 28  
1950. By agreement of the parties, these documents were entered for the prima  
facie truth of the facts contained therein.  
[68] There are various other documents in evidence which are unnecessary for  
me to detail at this time.  
3.  
Expert evidence  
[69] In dealing with the plaintiffs’ aboriginal rights claims, both parties tendered  
expert evidence in the areas of anthropology, ethnography and ethnohistory. Stated  
at its simplest, anthropology is the scientific study of humanity in the widest possible  
sense. Included within that discipline are the sub-disciplines of ethnography and  
ethnohistory. Ethnography is the study of a culture based on data collected from  
members of that culture, while ethnohistory is the study of a culture largely through  
the examination of historical documents.  
[70] The plaintiffs relied on the expert testimony of the following witnesses:  
a.  
b.  
c.  
d.  
Dr. Barbara Lane, qualified as a cultural anthropologist with particular  
expertise in ethnology, ethnography and ethnohistory with respect to  
aboriginal people;  
Mr. Richard Inglis, qualified as an anthropologist, ethnographer and  
ethnohistorian with expertise in Northwest Coast aboriginal people,  
particularly the Nuu-chah-nulth;  
Dr. Alan McMillan, qualified as an anthropologist, archaeologist,  
ethnographer and ethnohistorian with particular expertise in those  
disciplines concerning the Nuu-chah-nulth peoples; and  
Dr. Daniel Boxberger, qualified as an anthropologist with special  
expertise in the aboriginal peoples of the Pacific Northwest Coast.  
[71] With the exception of Dr. Boxberger, all of the plaintiffs’ experts have specific  
experience in the study of the Nuu-chah-nulth aboriginal cultures.  
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[72] The defendant’s expert was Dr. Joan Lovisek, who was qualified as an  
anthropologist and ethnohistorian with expertise in the use of ethnographic,  
archaeological and historical resources concerning First Nations people of Canada.  
4.  
Primary and secondary evidence  
[73] The experts relied on a combination of what I will call primary evidence and  
secondary evidence. Characterized loosely, primary evidence is original evidence in  
the sense of being a first-hand description of an observation of an event. Primary  
evidence may also be a study of original artefacts, such as an archaeological study  
of fish bone deposits to determine their age and species. Secondary evidence is  
what I would call commentary.  
[74] For convenience, I will characterize the Explorer Records as primary  
evidence, though I acknowledge that they are not necessarily so in the truly  
historical sense. As Dr. Lovisek explained, there are four distinct processes involved  
in the preparation of the Explorer Records, although not every explorer record went  
through the same four stages to publication. The first stage is the log book or field  
book, which is a record of daily activities and is usually written close to the time of  
the activities described. The second stage is a journal, which is a retrospective  
account written after a voyage, or part of a voyage, has been completed. The  
journal is next re-worked into a draft manuscript, which is the third stage of  
production. The manuscript journal is then re-worked into an edited and published  
text. Dr. Lovisek noted in her second report that fourth stage sources, that is,  
published books, cannot be considered primary documents in a historical sense.  
[75] The distinction between these various stages becomes relevant when I  
consider the reliability and weight of the various Explorer Records. For example,  
with respect to the journals of John Jewitt, a sailor held captive at Nootka Sound  
from 1803 to 1805, both his logs recorded contemporaneously and his published  
“journal” are in evidence.  
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[76] Regardless of the stage of publication of the various Explorer Records, I will  
refer to them in these Reasons as primary documents. As I explained in my earlier  
ruling concerning the admissibility of the Explorer Records, those records are not  
stand-alone evidence. In order to assess their reliability and the weight they should  
be accorded, it is necessary that I consider the expert evidence as to the  
provenance of each. I heard, for instance, much testimony from the experts as to  
which of the different edited versions of Captain Cook’s journals is the most  
authoritative. (I explain this controversy in more detail below.)  
[77] With respect to secondary evidence, all of the experts relied on the scholarly  
work of other archaeologists, anthropologists, ethnographers, ethnohistorians, and  
historians, at least in part, to support their opinions. The experts who testified often  
disagreed on the interpretation of a particular piece of primary evidence, and each  
sought support for his or her interpretation from the work of other scholars or authors  
who had studied the subject matter. In addition, many scholarly opinions were put to  
the experts in cross-examination.  
[78] In accordance with R. v. Marquard, [1993] 4 S.C.R. 223, the opinions of  
scholars who did not testify only became evidence if they were adopted by the  
experts as authoritative and thereby read into the body of evidence, or were relied  
upon by the experts in their own opinions. In other words, these scholarly works  
were not admitted as stand-alone evidence. Where I refer in these Reasons to  
scholars who did not testify but whose work was relied upon, I will endeavour to  
indicate the particular expert(s) whose opinion incorporated the work of the non-  
witness scholar.  
[79] I have rather loosely characterized evidence as primary and secondary, and  
recognize that historians would be much more precise in their characterization.  
Nevertheless, I still find it convenient to draw this distinction largely as a way of  
differentiating my treatment of the documents from an evidentiary point of view.  
[80] A third type of evidence that I would put into its own category is ethnographic  
evidence. The ethnographic study entitled The Northern and Central Nootkan Tribes  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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(Washington: United States Printing Office, 1951) by Philip Drucker is an example of  
this type of evidence. Drucker collected the material for his seminal work between  
1935 and 1936. His ethnographic period was from 1870 until about 1900, which he  
referred to as his ethnographic horizon unless he noted otherwise. He chose this  
ethnographic horizon because it was within the living memory of the individuals he  
interviewed in 1935 and 1936. All of the experts relied to some extent on Drucker’s  
work, though not entirely without criticism, and there is widespread respect by the  
academics for the generally authoritative nature of his work.  
[81] Unlike many aboriginal rights and title trials, I heard virtually no oral history  
evidence.  
[82] In R. v. Marshall, [1999] 3 S.C.R. 456, Binnie J. acknowledged some  
academic criticism by professional historians of the judicial treatment of historical  
evidence. He commented, at paras. 36-37:  
The courts have attracted a certain amount of criticism from professional  
historians for what these historians see as an occasional tendency on the  
part of judges to assemble a “cut and paste” version of history: G. M.  
Dickinson and R. D. Gidney, “History and Advocacy: Some Reflections on the  
Historian’s Role in Litigation”, Canadian Historical Review, LXVIII (1987),  
576; D. J. Bourgeois, “The Role of the Historian in the Litigation Process”,  
Canadian Historical Review, LXVII (1986), 195; R. Fisher, “Judging History:  
Reflections on the Reasons for Judgment in Delgamuukw v. B.C.”, B.C.  
Studies, XCV (1992), 43; A. J. Ray, “Creating the Image of the Savage in  
Defence of the Crown: The Ethnohistorian in Court”, Native Studies Review,  
VI (1990), 13.  
While the tone of some of this criticism strikes the non-professional historian  
as intemperate, the basic objection, as I understand it, is that the judicial  
selection of facts and quotations is not always up to the standard demanded  
of the professional historian, which is said to be more nuanced. Experts, it is  
argued, are trained to read the various historical records together with the  
benefit of a protracted study of the period, and an appreciation of the frailties  
of the various sources. The law sees a finality of interpretation of historical  
events where finality, according to the professional historian, is not possible.  
The reality, of course, is that the courts are handed disputes that require for  
their resolution the finding of certain historical facts. The litigating parties  
cannot await the possibility of a stable academic consensus. The judicial  
process must do as best it can.  
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[83] In the present case, plaintiffs’ counsel, in particular, expressed some  
reservations about the Court examining the historical documents independently of  
the experts and drawing conclusions from that examination, possibly unsupported by  
expert evidence. I agree that experts provide helpful, and at times essential,  
interpretative evidence with respect to historical documents. Their evidence is often  
helpful in order to understand, for instance, the historical context in which a  
statement was made, a custom of the time, a geographic reference and a host of  
other facts that may be relevant. At the end of the day, however, it is the Court  
which must make the necessary findings of fact and, at times, it may be appropriate  
and necessary for the Court to independently examine a historical document and  
make those findings of fact. I would, nevertheless, add that the Court should be  
cautious in approaching the historical evidence without the support of an expert  
opinion.  
[84] An example of how such caution is necessary is the journal of John Meares  
respecting a voyage made in 1788 and 1789. He wrote at p. 228 of his journal that  
Maquilla (Maquinna, Chief of the Nootka Sound tribes) was sovereign of the whole  
territory stretching from the southern tip of the Queen Charlotte Islands and  
southward to the islands of Wickaninnish (Clayoquot Sound). Mr. Inglis testified that  
Meares was not correct in his statement that Maquinna was sovereign of this whole  
territory. Mr. Inglis considered that Meares must have observed trading  
relationships and confused those relationships with a sovereign-type relationship.  
He cautioned that one should not take too literal an interpretation of individual  
historical records but, rather, look for similar references in other observations.  
C.  
Evidence of Trade and Features of Trade  
[85] The purpose of the following portions of this part of these Reasons, under the  
heading “Aboriginal Rights”, is to review the evidence relevant to the plaintiffs’ claim  
of the existence of indigenous trade at the time of contact with Europeans. To place  
the evidence in its historical context, I begin with a short historical chronology of the  
main events surrounding contact between the Nuu-chah-nulth and Europeans. I then  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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turn to a review of the records of the explorers and maritime traders. I review the  
numerous references I consider pertinent in a chronological order. Throughout my  
review of the Explorer Records, I comment on expert testimony regarding  
interpretation of those records. I then follow with a more generalized review of Nuu-  
chah-nulth culture. For instance, I canvass topics such as kinship, marriage, and  
warfare. The relevance of this evidence is to either support or refute the existence  
of trade. Canada, for example, argues that warfare was a prominent feature of  
contact era Nuu-chah-nulth society. Such warfare, it contends, is antithetical to  
friendly trade. The plaintiffs disagree and point to evidence in support of their  
submission that warfare caused only temporary interruptions in trade. Accordingly, I  
have found it important to consider more general evidence of the culture of the Nuu-  
chah-nulth in order to determine whether the assertion of the existence of trade is  
consistent with, and integral to, Nuu-chah-nulth culture.  
[86] In my view, it is not possible to precisely define trade. I prefer instead to  
enumerate features of trade. As will be recalled, the plaintiffs have pleaded  
alternative descriptions of trade which they say evolved, over the centuries, into the  
right to modern-day commercial fishing. Canada says that any trade between  
indigenous groups was infrequent, opportunistic, of small quantities, and within an  
idiom of kinship. As I discuss below, I disagree with Canada’s definition of trade as  
it excludes any trade between kin. Ultimately, I am persuaded by the evidence to  
accept the plaintiffs’ argument that kin in Nuu-chah-nulth society incorporates a very  
loose network of different groups, possibly connected by arranged marriage or some  
distant relationship. I find Canada’s definition to be overly restrictive.  
[87] During the period under review, the Nuu-chah-nulth had no conventional  
monetary system, thus it is necessary to identify features of transactions that  
constitute trade. Some of the defining features of trade include the following:  
exchanges of fish or shellfish for an economic purpose; exchanges of a significant  
quantity of goods; exchanges as a regular feature of Nuu-chah-nulth society; and  
exchanges outside the local group or tribe. I discuss these features throughout the  
evidence.  
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[88] At the conclusion of this part of my Reasons, I do conclude the plaintiffs have  
proven that the Nuu-chah-nulth fished and traded fish at the time of contact. I  
characterize their trading activity as one that included the features just described.  
That conclusion then leads to my analysis of the characterization of the modern-day  
activity that has evolved from that pre-contact trade in fish.  
D.  
Historical Chronology – Pre-contact to Present  
[89] The following chronology identifies events on the WCVI relevant to this  
litigation from the time before contact between Nuu-chah-nulth people and  
Europeans to the present day. These descriptions are intended to provide the  
reader with a brief historical narrative in order to place the evidence that is discussed  
below in its historical and chronological context. The facts described in these brief  
descriptions of events are not controversial in this litigation.  
Pre-contact period  
•
Approximately 4,000 years before present – The roots of Nuu-chah-nulth  
culture were established on the WCVI. (“Before present years” is a time scale  
used in archaeology and other scientific disciplines to specify when events in  
the past occurred. Standard practice is to use January 1, 1950, as the origin  
of the age scale.)  
•
January 1700 – A tsunami struck the WCVI in the Barkley Sound region. The  
resulting depopulation of the local groups in that region helped to bring about  
the amalgamation of the Huu-ay-aht, a process that had commenced well  
before contact. The amalgamation of local groups in the Clayoquot Sound  
region to form the Tla-o-qui-aht also commenced in the pre-contact period.  
Early contact period – 1774-1778  
•
1774 – The first known interaction between Nuu-chah-nulth people and  
Europeans occurred in 1774, when a Spanish expedition on The Santiago  
commanded by Juan Pérez anchored in the afternoon of August 7, 1774, and  
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Page 35  
overnight approximately six miles offshore in the vicinity of Estevan Point,  
south of Nootka Sound. The Santiago departed the following day without  
landing or moving closer to the shore. (There are some theories that Francis  
Drake possibly contacted the Nuu-chah-nulth in about 1579. Only fleeting  
reference to this possibility was made in the evidence and it is not relevant to  
the issues before me.)  
•
•
1775 – A second Spanish expedition aboard the same ship but led by Bruno  
de Hezeta approached the WCVI. They came within approximately 18 miles  
of the shore in the vicinity of Nootka Sound. They did not anchor and  
continued sailing southward. Nuu-chah-nulth followed The Santiago in  
canoes and made brief contact with the Spaniards.  
1778 – A British expedition led by James Cook aboard The Resolution and  
The Discovery landed at Nootka Sound. The expedition anchored at  
Resolution Cove on the south shore of Bligh Island, several miles from the  
Nuu-chah-nulth village of Yuquot (Friendly Cove). Cook remained at Nootka  
Sound for approximately one month. Members of the expedition also made a  
one-day tour of the region and visited two villages.  
•
1779-1784 – No vessels visited the WCVI.  
Maritime fur trade period – 1785-1818  
•
1785, 1786 – The Sea Otter, a British trading vessel under the command of  
James Hanna, was the first non-indigenous trading vessel to visit Nootka  
Sound. Hanna returned in 1786 on another trading vessel. No journals from  
Hanna’s expeditions have been located.  
•
1786 – A second British trading expedition, this one led by James Strange,  
visited Nootka Sound. The expedition arrived off the WCVI on June 26, 1786,  
and stayed at Nootka from July 6 until July 28. They subsequently travelled  
up the coast as far as Alaska. Alexander Walker, an officer on the Strange  
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Page 36  
expedition, wrote an account of his visit, which is the first extant journal  
relating to the WCVI after those of the Cook expedition. Strange also kept a  
journal, which provides some information respecting the Nuu-chah-nulth.  
•
•
1787 – A trading expedition led by Charles Barkley was the first known to  
have visited the area later to be named Barkley Sound. No journal from the  
Barkley expedition has been located.  
1787-1788 – A British trading expedition under the command of James  
Colnett visited the Nootka and Kyuquot Sound regions in 1787 and again in  
1788. The Princess Royal and The Prince of Wales arrived off the WCVI on  
July 5, 1787, and anchored in Nootka Sound for one month and in Nasparti  
Inlet for two days. They wintered in Hawaii, and The Princess Royal returned  
to Nootka Sound on April 19, 1788, for a further month. Charles Duncan  
captained The Princess Royal.  
•
•
1788 – From May to September 1788, a trading expedition under the  
command of British trader, John Meares, visited the WCVI. Meares visited  
both Nootka and Clayoquot Sounds.  
1788 – An American trading expedition led by John Kendrick (The  
Columbia) and Robert Gray (The Lady Washington) arrived at Nootka Sound  
in September 1788, and wintered at Yuquot. The expedition included officers  
Robert Haswell and Joseph Ingraham. Haswell’s log is the only record  
from the first expedition other than a letter that Ingraham wrote to Martínez,  
describing the Nuu-chah-nulth. Ingraham kept a journal, but it has not been  
located to date.  
•
1791 – The Columbia expedition returned to Nootka Sound. Records of the  
second voyage include Haswell’s second log, John Hoskins’ narrative and  
John Boit’s log. During this second expedition, Kendrick negotiated five  
separate transactions for territories with different Nuu-chah-nulth chiefs,  
including those of the Ehattesaht, Mowachaht and Tla-o-qui-aht. These  
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Page 37  
“deeds” included submerged lands in the subject area, including rivers,  
creeks, and harbours as well as “all the produce of both sea and land  
appertaining thereto.”  
•
1789 – Estevan José Martínez led the first of several successive Spanish  
expeditions which established and maintained a garrison at Yuquot in the  
years 1789 to 1795. Martínez had been an officer on the Pérez expedition in  
1774. He arrived at Nootka Sound in May 1789 and remained there until the  
end of September 1789, during which time he kept a journal which included  
observations about the Nuu-chah-nulth. Martínez was involved in conflict with  
both the Nuu-chah-nulth and British traders. He, or a marine under his  
command, shot and killed Callicum, the second chief at Nootka. He also  
arrested and seized the ships of British trader James Colnett, who had  
returned to the area for a third visit in 1789, precipitating the Nootka Sound  
Controversy. The Controversy was eventually resolved with the Nootka  
Sound Conventions.  
•
1790-1792 – A Spanish expedition under the command of Francisco de  
Eliza wintered at Nootka Sound in 1790/91 and 1791/92. Eliza served as the  
Commander of the Spanish garrison at Yuquot in 1790, taking over from  
Martínez. Ramon Saavedra was an officer on the expedition, and was  
Commandant of the garrison in 1791 during Eliza’s absence.  
•
•
1791 – A Spanish scientific expedition under the command of Alejandro  
Malaspina visited Nootka Sound for two weeks in August 1791.  
1792 – Juan Francisco de la Bodega y Quadra commanded a Spanish  
expedition to the WCVI, primarily Nootka Sound, to implement the Nootka  
Sound Convention. José Mariano Moziño, a Spanish naturalist with the  
expedition, stayed at the Spanish garrison at Yuquot from April to September  
1792. He wrote a descriptive account of the Nuu-chah-nulth.  
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•
•
1792 – Alcala Galiano and Cayetano Valdes commanded The Sutil and  
Mexicana to the WCVI, including Nootka Sound.  
1792-1794 – A British expedition to the northwest coast commanded by  
George Vancouver visited the WCVI on three occasions: 1792; 1793; and  
1794. Vancouver negotiated with Quadra in an attempt to resolve the Nootka  
Sound Controversy.  
•
•
•
1793-1794 – An American trading expedition on The Jefferson, led by  
Bernard Magee, wintered in Barkley Sound from 1793 to 1794. The  
expedition also visited Nootka and Clayoquot Sounds.  
1795 – Captain Charles Bishop of The Ruby arrived at Yuquot in  
September 1795, and proceeded south to Clayoquot Sound where he traded  
with Wickaninnish and others.  
1795-1820 – There were few non-aboriginal visitors to the WCVI during this  
period. The Spanish and British had departed in accordance with the Nootka  
Convention, and the fur trade had largely moved elsewhere. Two vessels of  
note visited during this time. The Boston, an American trading vessel, arrived  
in Nootka Sound in 1803 and was attacked by Nuu-chah-nulth led by  
Maquinna. The only survivors of the attack were John Jewitt, a blacksmith,  
and John Thompson, a sailmaker. They remained captives of Maquinna for  
two years. Jewitt kept a journal of his time in captivity, and subsequently  
published a narrative of his experiences. Le Bordelais, on a commercial  
voyage from Bordeaux under the command of Camille de Roquefeuil,  
arrived off the WCVI on September 1, 1817. Roquefeuil visited Nootka and  
Barkley Sounds, anchoring from September 27 to October 14 in Port Desire  
in Bamfield Inlet, and returned briefly to Nootka Sound in September 1818.  
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1820-1850  
•
•
1820-1850 – There were few non-aboriginal visitors to the WCVI during this  
approximately 30-year period. There is a complete gap in the historical  
record from approximately 1838 to the 1850s.  
1825 – John Scouler was a doctor aboard the Hudson’s Bay Company  
vessel, William & Ann, which visited Nootka Sound from July 30 to August 3,  
1825. Scouler kept a journal, and recorded some of the crew’s interaction  
with the Nuu-chah-nulth.  
•
•
1837 – Edward Belcher was Captain of The HMS Sulphur, which visited  
Nootka Sound in 1837. Belcher recorded various marine resource activities  
that he witnessed Nuu-chah-nulth engaging in. Captain George Richards,  
who later conducted a hydrographic survey of the WCVI, was also on the  
vessel.  
1846 – The Oregon Boundary Treaty established the present-day boundary  
between what is now Canada and the United States, including the boundary  
line to the south of Vancouver Island.  
Colonial Period – 1850-1871  
Colony of Vancouver Island  
•
•
•
1843 – The Hudson’s Bay Company established Fort Victoria in the location  
of the present day city of Victoria in anticipation of settling the Oregon  
boundary dispute.  
1849 – The Crown made a grant of “Vancouver’s Island” to the Hudson’s Bay  
Company. James Douglas was the senior Hudson’s Bay official at Fort  
Victoria before becoming Governor of the Colony of Vancouver Island.  
1850-1854 – Fourteen land cession treaties were concluded with the  
aboriginal tribes of Vancouver Island by James Douglas during this period.  
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Page 40  
These included a series of treaties with aboriginal peoples in the vicinity of  
Victoria to secure cession of most of their lands in exchange for payments.  
None of these treaties were concluded with Nuu-chah-nulth people.  
Colony of British Columbia  
•
1858 – In response to the frenzied mining and discovery of gold, the British  
Government created the mainland colony of British Columbia.  
Traders  
•
Circa 1850 – Non-aboriginal traders began operating on the WCVI. William  
Eddy Banfield, Peter Francis and Thomas Laughton conducted trading  
operations out of Clayoquot Sound and Barkley Sound. Banfield later  
became the government agent in the area.  
•
•
1859 – Banfield purported to purchase land, including water privileges, for his  
residence in Barkley Sound from Cleeshin, the Huu-ay-aht (Ohiat) chief. He  
purchased a second parcel in 1860.  
Banfield wrote a series of short reports for the Victoria Gazette about the  
Huu-ay-aht and the Tla-o-qui-aht.  
Establishment of non-aboriginal commercial fishery – 1850s  
•
A growing interest in the commercial trade of dogfish for oil developed in the  
period leading up to the 1850s. By the early years of the decade, Banfield,  
Francis and Laughton were purchasing fish and dogfish oil from the Nuu-  
chah-nulth and sending it to Victoria.  
1860 – 1865  
•
1860-1861 – Charles Barrett-Lennard was a trader and explorer who made  
a trading voyage to the WCVI in the summer of 1860, and cruised around the  
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Page 41  
Island from September to December 1860. He returned for a second visit in  
1861 and published an account of his cruise and other travels.  
•
•
1860-1862 – Captain George Richards of the British Navy led a  
hydrographic survey of the WCVI, and produced a series of maps that were  
published by the British admiralty. Richards and others on board the H.M.S.  
Hecate kept journals, noting Nuu-chah-nulth villages. Some of the villages  
were also marked on their maps.  
1860-1864 – Edward Stamp established a sawmill at the head of the Alberni  
Inlet in 1860. He purported to negotiate a treaty with the Tseshaht chiefs for  
the land for his sawmill. Gilbert Malcolm Sproat was an employee of  
Stamp’s sawmill in Alberni where he lived from 1860 to 1864. He went to  
Alberni as the head of the construction crew to build the mill and became the  
manager in 1863, the same year that he was appointed Justice of the Peace  
for Vancouver Island. The sawmill closed in 1864. Sproat’s book on the Nuu-  
chah-nulth, Scenes and Studies of Savage Life, was published in 1868 after  
he had returned to England.  
•
•
1863 – Robert Brown served on a botanical expedition on the WCVI, and  
kept a journal from May to July 1863.  
1864-1865 – Robert Brown led the Vancouver Island Exploring Expedition in  
1864, which travelled and mapped the WCVI. John Buttle was also a  
member of the expedition in 1864, and he led it in 1865. Thomas Laughton  
was a member of the expedition under Buttle.  
Early confederation period – 1871-1920  
•
1871 – British Columbia entered into Confederation, at which time both  
fisheries and Indians came under the jurisdiction of the federal government.  
•
1874 – George Blenkinsop was dispatched by the Department of Indian  
Affairs to investigate and prepare a report on Indian tribes in the Barkley  
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Page 42  
Sound region in anticipation of the establishment of reserves in the area. He  
prepared a report for Indian Superintendent Israel W. Powell, and also  
prepared a map depicting the boundaries of the tribes in the area and  
marking some settlement sites.  
•
•
1874, 1879 – Superintendent Powell was the Indian Superintendent for  
British Columbia from 1872 to 1889. He visited the Nuu-chah-nulth tribes on  
the WCVI in September 1874, aboard the British gunboat HMS Boxer. He  
undertook another tour in 1879.  
1882-1889 – Peter O’Reilly was appointed Indian Reserve Commissioner for  
British Columbia. He made three trips to the WCVI to establish reserves for  
the plaintiffs: Barkley Sound in 1882; to the Hesquiaht in 1886; and, the  
tribes from Ucluelet to Che:k’tles7et’h’ in 1889.  
•
•
1886 – The City of Vancouver was incorporated.  
1888 – Comprehensive fisheries regulations were adopted for British  
Columbia, and the federal government introduced the concept of food fishing  
for aboriginal peoples. The regulations had a specific provision allowing them  
to fish for food but not barter.  
•
•
Early 1900s – As the fishing industry developed, Nuu-chah-nulth were  
recruited as fishermen at the canneries and salteries, and also as shore  
workers at the canneries and whaling stations.  
1912-1916 – A joint provincial and federal Royal Commission on Indian  
Affairs for the Province of British Columbia, known as the McKenna-McBride  
Commission, was established. The Commission travelled to the WCVI in  
1914 and met with the Nuu-chah-nulth in their communities.  
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Page 43  
VI.  
A.  
ABORIGINAL RIGHTS  
Date of Contact  
[90] Aboriginal rights have their origin in pre-contact societies. For this reason,  
the relevant time period for determining whether a practice, custom or tradition that  
is alleged to ground an aboriginal right was integral to the aboriginal society is the  
period prior to contact between the aboriginal society and Europeans. This ensures  
that the practice, custom or tradition is an indigenous one and not one that arose  
solely as a response to European influences. As Lamer C.J. explained in Van der  
Peet, at para. 60, “[b]ecause it is the fact that distinctive aboriginal societies lived on  
the land prior to the arrival of Europeans that underlies the aboriginal rights  
protected by s. 35(1), it is to that pre-contact period that the courts must look in  
identifying aboriginal rights.”  
[91] He continued at para. 62, with further clarification:  
That this is the relevant time should not suggest, however, that the aboriginal  
group claiming the right must accomplish the next to impossible task of  
producing conclusive evidence from pre-contact times about the practices,  
customs and traditions of their community. It would be entirely contrary to the  
spirit and intent of s. 35(1) to define aboriginal rights in such a fashion so as  
to preclude in practice any successful claim for the existence of such a right.  
The evidence relied upon by the applicant and the courts may relate to  
aboriginal practices, customs and traditions post-contact; it simply needs to  
be directed at demonstrating which aspects of the aboriginal community and  
society have their origins pre-contact. It is those practices, customs and  
traditions that can be rooted in the pre-contact societies of the aboriginal  
community in question that will constitute aboriginal rights.  
[92] Satanove J. commented upon the lack of guidance in the authorities as to  
what precisely is meant by “contact” in Lax Kw’alaams Indian Band, at paras. 113-  
114:  
[113] Little guidance appears in the case law as to what is meant by  
“contact”. The decisions of R. v. Van der Peet and R. v. Gladstone,  
confirmed by R. v. Sappier, refer to “the arrival of Europeans in North  
America” as the relevant time of contact. In Delgamuukw v. British Columbia,  
the Supreme Court of Canada states that the activities that were protected  
were only those carried out at the time of contact or “European influence”. In  
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R. v. Adams, the court finds that the date of contact with respect to the  
accused’s Mohawk ancestors was the arrival of Samuel de Champlain in  
1603 because that was when the French “established effective control” over  
what would become New France. In Mitchell v. M.N.R. the court uses 1609  
(not 1603) as the date of first contact relevant to the Mohawks, because the  
case involved a different group of Mohawks than the one in R. v. Adams.  
[114] In my opinion, given the Supreme Court of Canada’s admonition in R.  
v. Van der Peet that courts must focus on the particular aboriginal group  
claiming the aboriginal right, and that aboriginal rights are not generally  
universal but that their scope and content must be determined on a case by  
case basis, then the date of contact should be the date on which occurred the  
first direct arrival of Europeans in the area of the particular group of  
aboriginals, in this case, the Coast Tsimshian.  
See also the discussion in Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700,  
[2007] B.C.J. No. 2465, at paras. 1180-1212.  
[93] In the present case, the parties appear agreed that the date of contact is  
1774. This is the date on which Juan Pérez onboard The Santiago anchored  
approximately six miles offshore and Nuu-chah-nulth people, likely Hesquiaht,  
paddled out to meet him and traded fish with his crew. The next encounter with  
Europeans occurred in 1775, this time approximately 18 miles offshore from Nootka  
Sound. It was again The Santiago, then under the command of Hezeta. Neither  
Pérez nor Hezeta made landfall.  
[94] The first contact that involved any significant interaction between the Nuu-  
chah-nulth and Europeans was the Cook expedition in 1778. It was not until 1785  
that the maritime fur trade era began in earnest, and other Nuu-chah-nulth groups  
besides the Hesquiaht and the Mowachaht/Muchalaht at Nootka Sound had any  
significant contact with Europeans. As the plaintiffs note, more generalized contact  
between the fur traders and the Nuu-chah-nulth people occurred over the next  
several years. Approximately 50 trading vessels came to various points of the Nuu-  
chah-nulth territories including Barkley, Clayoquot and Kyquot Sounds between  
1774 and 1818.  
[95] I find 1774 to be the date of contact. However, in the circumstances of this  
case, I also find that that date does not precisely demarcate between pre-contact  
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Nuu-chah-nulth activity on the one hand and activity influenced by European contact  
on the other. In my view, the more pertinent question is whether the observations of  
the maritime explorers and traders between Pérez’s arrival in 1774, Cook’s arrival in  
1778 and the end of the maritime fur trade period in 1818 reflect pre-contact Nuu-  
chah-nulth society. The plaintiffs say I should infer from those observations that  
trade in fish was a distinctive and integral aspect of pre-contact Nuu-chah-nulth  
culture, whereas Canada says that such trade, to the extent it existed, was the  
product of European influence. As I explore more fully below, there are significant  
issues concerning the influence of European contact on the culture of the Nuu-chah-  
nulth people in the three decades that followed Pérez’s arrival at Nootka Sound.  
[96] In their submissions, neither party detailed the evidence of contact for each  
separate plaintiff. Indeed, it would have been difficult to do so. Moreover, because  
there was considerable interaction between the various Nuu-chah-nulth groups up  
and down the coast, European influence, such as the importation of iron, may have  
been experienced by some plaintiffs prior to direct European contact. Dr. Lovisek  
referred to this indirect contact with Europeans as “proto-contact.” As the evidence  
does not permit me to conclude otherwise, I make clear that my finding of 1774 as  
the date of contact applies to each of the plaintiffs.  
B.  
Pre-contact Practices and Way of Life  
[97] The plaintiffs claim the right to harvest all species of fisheries resources within  
their fishing territories and to sell those products on a commercial scale. They  
alternatively claim the right to sell such fisheries resources in an amount sufficient to  
sustain their community or, in the further alternative, to exchange them for money or  
other goods.  
[98] This claim to an aboriginal right requires 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.  
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[99] I begin my examination of the pre-contact practices and way of life of the  
Nuu-chah-nulth with a review of the evidence of explorer contact with the Nuu-chah-  
nulth and, in particular, evidence from their records relating to Nuu-chah-nulth trade  
in fish.  
1.  
Review of Explorer Records  
a. Juan Pérez and The Santiago  
[100] The first recorded contact between any aboriginal group on the west coast of  
British Columbia and Europeans was the Nuu-chah-nulth’s encounter on August 7,  
1774, with the Spanish vessel, The Santiago, under the command of Juan Pérez.  
The encounter was brief. The Santiago approached the WCVI and set anchor on  
the evening of August 7, 1774, some six miles off what is now called Estevan Point,  
southeast of Nootka Sound. While The Santiago was anchored offshore, Nuu-chah-  
nulth canoes, likely from the Hesquiaht tribe, approached the vessel but did not  
communicate with those aboard. The following day, 15 canoes came to The  
Santiago and trade was conducted between members of the aboriginal group and  
the crew of The Santiago.  
[101] Pérez described the event in his diary as follows:  
We continued sailing under full sail in search of the coast, steering to the N;  
the wind out of the SE, fresh; the sea smooth; the sky overcast. At 3 in the  
afternoon canoes began coming out from the land; three of them were nearby  
and up to five of them collected together, but without wanting to come near  
regardless of how much they were called.  
…
The Indians then came within speaking distance, and they started their  
trading by an exchange of furs for shells which our men brought from  
Monterey. They [the sailors] got in return various sea otter skins and many  
sardines. The Indians differed in appearance from those at Santa Margarita  
[Queen Charlotte Islands], the pelts [they wore] not being placed against the  
body. There is copper in their land, for various strings of beads were seen  
(similar to glass beads) that were made of animal teeth, and at their ends  
they had some eyeholes of beaten copper, which had certainly been grains  
extracted from the earth and later pounded, implying that they had some  
mines of this metal. These Indians are very docile, for they gave up their furs  
even before they were paid for them. They are very robust and white as the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 47  
best Spaniard. The two women whom I saw had the same appearance as  
the other. Some Indians wore rings made of bone in their ears. It did not  
appear that they had experienced or seen civilized people before. As many  
as 15 canoes collected around.  
[102] After Pérez prepared his diary, it was read and “certified” by Martínez,  
another officer on The Santiago. That certification reads:  
I certify that this diary is a literal copy of the original kept and written by the  
hand of ensign, frigate grade, said Juan Pérez who has daily shown me his  
work. Everything expressed in it is certain and true, and therefore as it  
happened. So that this is clear, I signed it in the capacity of second captain  
and pilot, and as an eyewitness, in Monterey, 29 August 1774.  
(Martínez made a subsequent journey to Nootka Sound which will be described  
below.)  
[103] The Pérez records also contain the accounts of two Catholic priests who  
accompanied the Pérez expedition, Fray Tomás de la Pena and Fray Juan Crespi.  
The language of those two accounts is so similar that I conclude that the two priests  
either collaborated in their writing of their journals or one copied the other. Contrary  
to Pérez’s diary, no mention is made by the priests of the trade in sardines, although  
both do mention trade. de la Pena states in his account:  
We gave them [the natives] to understand that they might draw near without  
fear, and presently they came to us and began to trade with our people what  
they brought in their canoes, which consisted only of skins of otters and other  
animals, hats of rushes, painted and with the crown pointed, and cloth woven  
of a kind of hemp, having fringes of the same, with which they clothe  
themselves, most of them wearing a cape of this material. Our people bought  
several of these articles, in exchange for old clothes, shells which they had  
brought from Monterey and some knives; for these and the shells they  
manifested greater liking. …  
[104] Pérez’s contact with the Nuu-chah-nulth was terminated quickly because a  
high wind came up threatening to blow the ship onto the shore. Pérez made the  
decision to cut the anchor cable and sail away.  
[105] Later the following decade, an American trading expedition led by John  
Kendrick (The Columbia) and Robert Gray (The Lady Washington) wintered in  
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Page 48  
Nootka Sound from 1788 to 1789. Joseph Ingraham, an officer aboard The  
Columbia, wrote what has come to be called the “Ingraham Letter” for Martínez, who  
was in command of another expedition. In his letter, Ingraham recounted stories told  
to him by the natives of Nootka Sound about the encounter with Pérez. The  
encounter is noted to have occurred approximately 40 months prior to the arrival of  
Captain Cook. This is roughly correct, thus lending some degree of reliability to  
Pérez’s account. Ingraham wrote:  
About 40 months before Captain Cook’s arrival a ship came into the sound  
and anchor’d within some rocks on the East side [of] the entrance where she  
Remain’d 4 Days and Departed. They said she was a larger ship than they  
had ever seen since; that she was copper’d and had a Copper Head, this I  
suppose to have been Gilt or painted yellow; that she had a great many guns  
and men; that the Officers wore Blue lac’d [laced] coats; and that most of the  
men wore Handkerchiefs about their heads. They [the ship’s crew] made  
them presents of Large pearl shells some of which they still have in their  
possession. Besides this they gave them Knives with crooked Blades [and] a  
black handle. They [the natives] sold them Fish and their Garments but no  
furs. When they first saw this ship they said they were exceedingly Terrified  
and but few of them even ventur’d along side. All the different accounts of  
this ship agreed in every particular, but one informe’d me he saw from the  
shore a Small vessel in the offing at a great distance from the Land which  
had but two masts. From every circumstance I was led to believe at the time  
this must have been a Spanish ship which immediately acount’d to me for the  
two silver spoons Captain Cook found among the Natives.  
[106] The plaintiffs submit that what is significant about this first encounter between  
the Nuu-chah-nulth and Europeans is that, according to both Pérez and the Nuu-  
chah-nulth as recorded by Ingraham, fish were sold to the Spanish. The plaintiffs  
say that these accounts corroborate each other and document a commercial  
exchange in fish.  
[107] I turn next to the opinions of the expert witnesses who testified with respect to  
the Pérez encounter with the Nuu-chah-nulth.  
[108] Dr. McMillan, in concluding that the Nuu-chah-nulth traded fish to the  
Spanish, relied primarily on Pérez’s account. He admitted under cross-examination  
that he did not rely on the accounts of the two priests or of Mourelle, another officer  
onboard. It was also put to Dr. McMillan that he had disregarded the language in  
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Page 49  
Mourelle’s account that they “handed over [the shells and sardines] before receiving  
the agreed upon price.” This, it was suggested to him, was a form of gift giving and  
not trade. Dr. McMillan noted first that the wording of the journals of de la Pena and  
Crespi were almost the same and that he consequently questioned whether they  
could stand as independent documents. He also expressed his view that the  
encounter was trade, reciprocal gift giving or barter.  
[109] Dr. Lovisek acknowledged in cross-examination that Pérez’s entire diary  
(including the passage relating to Nootka Sound) would have been submitted to the  
Viceroy Bucareli in Mexico City at the conclusion of his voyage and that “Martínez’s  
certification was an indication that he had seen the diary daily as Pérez had shown it  
to him.” The “certification” by a second observer presumably lends further legitimacy  
to the observations.  
[110] Dr. Lovisek seemed to discount the accounts of these transactions between  
Pérez and the Nuu-chah-nulth as trade and relied, in part, on another academic,  
Christian Archer, to support her opinions in this regard. She was, however,  
mistaken. During cross-examination, it was pointed out to her that Dr. Archer had in  
fact characterized the transactions in question as trade.  
[111] My conclusion in respect to the Pérez encounter is that the Nuu-chah-nulth  
did engage in an exchange of fish for goods offered to them by the crew of The  
Santiago. In my view, Dr. McMillan’s and Dr. Archer’s interpretation of the records is  
supportive of this finding. Dr. Archer’s opinion was relied upon by Dr. Lovisek in her  
testimony and report. I place less weight on the accounts of the two priests for the  
reasons already noted.  
b.  
Bruno de Hezeta  
[112] On August 13, 1775, Bruno de Hezeta, commanding The Santiago (Pérez’s  
former vessel) approached the WCVI about 18 miles offshore in the vicinity of  
Nootka Sound. He did not anchor but continued sailing southward. His diary  
records that Nuu-chah-nulth canoes “came off in each of which were two Indians,  
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Page 50  
who made signs to us to go onshore to their land.” During this brief encounter, the  
Nuu-chah-nulth exchanged goods with the Spaniards, including sea otter pelts and a  
canoe.  
c.  
Captain James Cook  
[113] A British expedition led by Captain James Cook in two ships, The Resolution  
and The Discovery, with a crew totalling some 188 men, arrived off the WCVI on  
March 29, 1778. They anchored in Resolution Cove on Bligh Island, (so named  
after the cartographer William Bligh, who became infamous because of the mutiny  
on The Bounty, then under his command) in Nootka Sound. The ships remained  
there until April 26, 1778, in order that they could be provisioned and repaired. After  
leaving Nootka Sound, Cook travelled to Hawaii. He was killed in Hawaii in 1779 on  
the same voyage, and thus his journal of his third voyage (1776-1779, which  
included his voyage to Nootka Sound) was published posthumously.  
[114] Two edited versions of the Cook journals were entered into evidence. One  
version was edited by John Douglas: Cook, James. A Voyage to the Pacific Ocean:  
… performed under the direction of Captains Cook, Clerke, and Gore, in His  
Majesty’s ships the Resolution and Discovery: in the years 1776, 1777, 1778, 1779,  
and 1780. Vol. I and II written by James Cook; vol. III by James King. London:  
Printed by W. and A. Strahan for G. Nicol and T. Cadell. 1784. Another version was  
edited by J.C. Beaglehole, an academic, and published in 1967: Beaglehole, J.C.,  
The Journals of Captain James Cook On His Voyages of Discovery; The Voyage of  
the Resolution and Discovery, 1776-1780, Parts I and II, Cambridge: University  
Press, 1967.  
[115] A controversy between Dr. Lovisek, who relied on the Douglas version, and  
the plaintiffs’ experts, who relied on the Beaglehole version, arose because of a  
statement in the latter in which Cook wrote “(f)ish seemed to be in greater plenty,  
though we got none but by truck from the Natives, who after the first Week supplied  
us pretty plentifully with a small fish like Sardines, if they were not of them, and a  
small fish like Bream, now and then a Cod.” This statement was not contained in the  
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Page 51  
Douglas version. The plaintiffs argue that this is an important piece of evidence  
because it tends to support the contention that the natives traded fish with the early  
explorers.  
[116] Douglas relied on a manuscript kept by William Anderson, a surgeon onboard  
The Resolution. Unfortunately, the Anderson journals are no longer extant.  
Douglas, who was not on Cook’s voyage, re-wrote Cook’s words, recast some of  
Cook’s observations, and supplemented Cook’s descriptions with observations from  
the journals of other crew members, sometimes with, and other times without,  
attribution. Mr. Inglis noted that the publications of Cook’s journals were often  
bestsellers and that the 1784 edition of the Third Voyage edited by Douglas sold out  
in three days.  
[117] Dr. Lovisek stated in her August 8, 2008 report that “John Douglas had  
Captain Cook’s permission to edit his journals.” The statement may be accurate for  
the earlier voyages but is inaccurate in respect to the voyage that included the  
Nootka Sound entries because, as I have noted already, Cook was killed on that  
voyage and his journals were edited posthumously. Cook did not have the  
opportunity either to revise his shipboard journal or to have any input into Douglas’  
changes as the third voyage journal was being prepared for publication.  
[118] Mr. Inglis testified that modern scholars rely on the Beaglehole version  
published in 1967 and subsequently re-printed in 1973 and 1999. He noted that  
Douglas took literary licence and added his own content, whereas the Beaglehole  
edition comprised “Cook’s unvarnished words”. Mr. Inglis speculated that Douglas  
was possibly catering to his intended audience. Another difference he pointed out  
between the two publications is the inclusion in the Beaglehole version of the  
journals of other ship officers, which are set out separately. Douglas, on the other  
hand, wrote the journal in the first person so it is not possible for the reader to know  
whether the words are those of Cook or of other officers whose journals were  
incorporated, for the most part, without attribution.  
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[119] I conclude from the evidence of Mr. Inglis and other of the plaintiffs’ experts,  
as well as the testimony of Dr. Lovisek under cross-examination, that the weight of  
scholarly opinion on this topic is that the Beaglehole version is more authoritative  
and reliable than the Douglas version. I find on the evidence before me that the  
Beaglehole version should be relied upon in preference to the Douglas version.  
[120] Reliance on the Douglas version led Dr. Lovisek to write in her report, “Cook  
makes no mention of a barter or exchange in this transaction” (p. 90). She is correct  
about the Douglas version, but not the Beaglehole version. Cook, as noted, wrote in  
the Beaglehole version that they traded in fish with the natives. In addition, in the  
separate officers’ journals published by Beaglehole, Samwell, King, and Ellis all say  
that the Nootka Sound natives traded fish to the crew of the Cook expedition. Some  
of the observations record very sizeable amounts of fish.  
[121] Cook’s encounter with the Nootka Sound natives was more substantial than  
that of his predecessors, Pérez and Hezeta. As noted by Dr. Lane in her report,  
Cook was an experienced explorer (p. 45):  
By the time [Cook’s] expedition arrived in Nootka Sound, Cook was a widely  
experienced explorer. He had led expeditions of explorations which visited  
Tahiti, New Zealand, Australia, Tonga, Tasmania, Easter Island, Hawaii and  
many other locations remote from Britain. Prior to meeting the Nuu-chah-  
nulth, Cook had many previous encounters in which he had observed and  
described indigenous peoples who had little or no previous contact with  
Europeans.  
[122] Cook made a number of observations in his journal under the headings of  
“Country and produce”, “Inhabitants and their Persons and Habits”, “Manufacture”,  
“Ornaments”, “Canoes”, “Food & Habitations”, “Food and Cookery”, “Large Images”,  
“Fishing implements”, “Tools” and “Government and Religion”. He appears to have  
learned some of the Nuu-chah-nulth language, as he included a brief dictionary  
which included the word “ma’cook” meaning to exchange or barter and “pa’cheetle”  
or “pa’chatle” meaning to give or to give me.  
[123] Among the entries in Cook’s journal, as edited by Beaglehole, are the  
following:  
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We no sooner drew near the inlet than we found the coast to be inhabited  
and the people came off to the Ships in Canoes without shewing the least  
mark of fear or distrust. We had at one time thirty two Canoes filled with  
people about us, and a groupe of ten or a dozen remained along side the  
Resolution most part of the night. They seemed to be a mild inoffensive  
people, shewed great readiness to part with any thing they had and took  
whatever was offered them in exchange, but were more desireous of iron  
than any thing else, the use of which they very well knew and had several  
tools and instruments that were made of it.  
… A great many Canoes filled with the Natives were about the Ships all day,  
and a trade commenced betwixt us and them, which was carried on with the  
Strictest honesty on boath sides. Their articles were the Skins of various  
animals, such as Bears, Wolfs, Foxes, Dear, Rackoons, Polecats, Martins  
and in particular the Sea Beaver, the same as is found on the coast of  
Kamtchatka. Cloathing made of these skins and a nother sort made, either of  
the bark of a tree or some plant like hemp; Weapons, such as Bows and  
Arrows, Spears & c Fish hooks and Instruments of various kinds, pieces of  
carved work and even human sculs and hands, and a variety of little articles  
too tedious to mention. For these things they took in exchange, Knives,  
chisels, pieces of iron & Tin, Nails, Buttons, or any kind of metal. Beads they  
were not fond of and cloth of all kinds they rejected.  
…
A considerable number of the Natives visited us daily and we every now and  
then saw new faces. On their first coming they generally went through a  
singular ceremony; they would paddle with all thier strength quite round both  
Ships, A Chief or other principal person standing up with a Spear, or some  
other Weapon in his hand and speaking, or rather holloaing all the time,  
sometimes this person would have his face cover[ed] with a mask, either that  
of the human face or some animal, and some times in stead of a weapon  
would hold in his hand a rattle. After making the Circuit of the ships they  
would come along side and begin to trade without further ceremony. Very  
often indeed they would first give us a song in which all joined with a very  
agreable harmony.  
…
SATURDAY 4th.  
In these Visits they gave us no other trouble than to  
guard against their thievish tricks, but on the 4th in the Morning, we were  
interrupted in our work by all those about the Ships suddenly assembling at  
the place where we were cuting wood and filling water and arming  
themselves with whatever they could meet with; those who had not proper  
weapons, got sticks and Stones. Not knowing their intention, this occasioned  
us to arm also and stand upon the defensive and I ordered all the workmen  
that were ashore, to the Rock where the observatories were and left the  
Indians in possession of the ground they had chosen, which was within a  
stones throw of the Ships stern. The Indians seeing that they had given us  
some alarm, gave us to understand by signs, it was not us they were arming  
against but a party of their Country-men that were coming to fight with them.  
We at the same time observed that they had people looking out on each point  
of the Cove and canoes passing to and fro between them and the Main body.  
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At length a party in about a dozen large Canoes, appeared of the South point  
of the Cove, where they laid drawn up in a body. Some people in Canoes  
pass’d to and from between the two parties and there was some speaking on  
both sides. At length the difference, whatever it was, was compromised, but  
the Strangers were not allowed to come along side the Ships nor to have any  
trade or intercourse with us: our first friends, or those who lived in the Sound  
seemed determined to ingross us intirely to themselves. This we saw on  
several other occasions, nor were all those who lived in the Sound united in  
the same cause; the Weakest were frequently obliged to give way to the  
Strong, and were sometimes plundered of every thing they had, without  
attempting to make the least resistance. In the afternoon we resumed our  
work and the next day rigged the Foremast; the head of which being rather  
too small for the Cap, the Carpenter went to work to bring, or fix a piece on  
one side to fill up the Cap. In cuting into the mast head for this purpose, and  
examining a little farther into it, both cheeks were found so rotton that there  
was no possibility of repairing them without geting the mast out and fixing on  
new ones. It was evedent that one of the Cheeks had been defective at the  
first, and the defective part had been cut out and a piece put [in], what had  
not only weakened the mast head, but had in a great measure been the  
occasion of roting all the other part. Thus when we were almost ready to put  
to Sea, we had all our work to do over again, and what was worse a job of  
work to perform that required some time to finish, but as there was no remedy  
we immidiately set about it. It was lucky these defects were descovered in a  
place where wood, the principal thing wanting was to be had; for among the  
drift wood in the Cove where we lay, were some well seasoned trees and  
very proper for our purpose, one of which was pitched upon and the  
Carpenters went to work to make out of it two new Cheeks.  
…
The bad weather which now came on did not however hinder the Natives  
from Visiting us daily and proving very usefull, as they frequently brought us a  
tolerable supply of fish, when we could catch none our selves with hook and  
line and there was no place near us to draw a net. The fish they brought us  
were either Sardins or a small fish very like them and a small kind of Bream,  
with now and then a small Cod.  
…
SATURDAY 18th.  
On the 18th a party of Strangers in Six or eight Canoes  
came into the Cove where they remained looking at us for some time, then  
retired without coming along side either ship. We supposed our old friends  
would not suffer them, who were more numerous at this time about us than  
the strangers. It was evident that they engrossed us intirely to themselves, or  
if at any time they allowed Strangers to trade with us it was always managed  
the trade for them in such a manner that the price of their articles was always  
kept up while the Value of ours was lessening daily. We also found that  
many of the principals of those about us carried on a trade with their  
neighbours with the articles they got from us; as they would frequintly be  
gone from us four or five days at a time and then return with a fresh cargo of  
skins curiosities &c and such was the passion for these things among our  
people that they always came to a good Market whether they were of any  
value or no. But such of them as visited us daily we reaped the most benifit  
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from, these, after disposing of all their little trifles, employed a part of their  
time in fishing and we always got at least a part of the fruits of their labour.  
We also got from these people a quantity of very good Animal oil which they  
had reserved in bladers; in this traffick some would attempt to cheat us by  
mixing Water with the oil, once or twice they had the address to impose upon  
us whole bladers of water wi[t]hout a drop of Oil in them. It was always better  
to put up with these tricks than to quarrel with them, as our articles of trafick  
consisted for the most part in trifles, and yet we were put to our shifts to find  
these trifles, for beads and such things of which I had yet some left, were in  
little esteem. Nothing would go down with them but metal and brass was now  
become their favourate. So that before we left the place, hardly a bit of brass  
was left in the Ship, except what was in the necessary instruments. Whole  
Suits of cloaths were striped of every button, Bureaus &c of their furniture and  
Copper kettle[s], Tin canesters, Candle sticks, &c all went to wreck; so that  
these people got a greater middly and variety of things from us than any other  
people we had visited.  
…
After they had finished their Songs which we heard with admiration, they  
came along side the Ships, and then we found that several of our old friends  
were among them, who took upon them the intire management of the trade  
between us and them very much to the advantage of the others. Having a  
few Goats and two or three sheep left I went in a boat accompaned by  
Captain Clerke in a nother, to the Village at the west point of the Sound to get  
some grass for them, having seen some at that place. The Inhabitants of this  
village received us in the same friendly manner they had d[o]ne before, and  
the Moment we landed I sent some to cut grass not thinking that the Natives  
could or would have the least objection, but it proved otherways for the  
Moment our people began to cut they stoped them and told them they must  
Makook for it, that is first buy it. As soon as I heard of this I went to the place  
and found about a dozen men who all laid cla[i]m to some part of the grass  
which I purchased of them and as I thought liberty to cut where ever I  
pleased, but here again I was misstaken, for the liberal manner I had paid the  
first pretended pr[o]prietors brought more upon me and there was not a blade  
of grass that had not a seperated owner, so that I very soon emptied my  
pockets with purchasing, and when they found I had nothing more to give  
they let us cut where ever we pleased.  
…
Here I must observe that I have no where met with Indians who had such  
high notions of every thing the Country produced being their exclusive  
property as these; the very wood and water we took on board they at first  
wanted us to pay for, and we had certainly done it, had I been upon the spot  
when the demands were made; but as I never happened to be there the  
workmen took but little notice of their importunities and at last they ceased  
applying. But made a Merit on necessity and frequently afterwards told us  
they had given us Wood and Water out of friendship.  
[124] David Samwell was the surgeon onboard The Discovery. He noted in his  
journal on March 29, 1778, that as soon as they arrived they were:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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... surrounded by thirty or 40 Canoes full of Indians who expressed much  
astonishment at seeing the Ship … We made Signs of Friendship to them  
and invited them alongside the Ship where they soon ventured and behaved  
in a peaceable manner, offering us their Cloaths and other things they had in  
their Canoes, and trading immediately commenced between us; we soon  
found that they were not unacquainted with Iron by the value they put upon  
our Nails, for which they gave us Bear Skins and two or 3 pieces of a thick  
kind of Cloth ...  
[125] On April 5, Samwell noted:  
One party paddled out of the Cove, the People belonging to the other came  
to trade along side the Ship as usual. They begin now to bring us some flat  
fish to sell as well as Mussels and Cockles, for which we give them little  
pieces of Tin and other trifles.  
[126] On April 25, he wrote, after detailing the fish and animals that made up the  
diet of the natives:  
… In their Bays they catch Flat fish, Herring and Spratts & other small kinds  
of fish, & we saw great plenty of Mussels and Cockles among them. The fish  
of these they smoke place[d] in rows upon sticks, many of which they brought  
to sell to us as well as fresh ones, & they also sold us great quantities of dried  
Herrings. (p. 1098, Samwell).  
[127] Samwell observed in his journal (at p. 1103) that they found iron, copper and  
brass among the natives, who also had silver spoons they judged to be Spanish. He  
theorized that they “got the Spoons & the Iron by way of Traffic from other Tribes to  
the Southward, as the Coast is probably inhabited all the Way from this Sound to  
California.”  
[128] Dr. Lane noted Cook’s comment that the natives were eager to trade. She  
also referred to Samwell’s note that it was as common to buy fish from the natives  
as it was in London:  
… they bring us some Sprats to sell as well as flat fish & it is as common to  
buy a halfpennyworth of Sprats here as it is in London, they measure them  
out to us & give us good pennyworths and are very fine fish. This is the first  
place that we have found our Money current at since we left Plymouth; silver  
they don’t set much Value upon preferring a halfpenny to a Shilling.  
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[129] Dr. Lane concluded that Cook saw evidence of inter-tribal trade with  
neighbours. In saying this, she relied on Cook’s observation that some of the  
natives would be gone for four or five days at a time and then return with a fresh  
cargo, from which she inferred they had traded European goods with their  
neighbours.  
[130] Dr. Lane also noted that Cook and his officers portrayed the Nuu-chah-nulth  
as engaged in trade with neighbouring native groups:  
It was noted that the native people were in possession of several  
commodities that could only have been obtained by trade with outsiders,  
including iron, silver spoons, and blankets made from “wool”, likely mountain  
goat wool originating on what is now the British Columbia mainland.  
[131] Dr. McMillan stated that:  
Cook was aware that the people of Yuquot were monopolizing the trade,  
requiring their neighbours to go through them to obtain items of European  
manufacture. He also realized that they were exchanging the items they had  
received with more distant groups, returning with fresh stocks of skins and  
other goods to trade with Cook’s crew.  
[132] Mr. Inglis also opined that inter-tribal trade was noted by the Cook expedition.  
[133] As already noted, Dr. Lovisek relied on the Douglas version of the Cook  
journals, and consequently was not of the view that they supported the contention  
that there was indigenous trade in fish; that is, exchange of fish between the Nuu-  
chah-nulth or with other aboriginal groups, as opposed to trade with the Europeans.  
[134] Canada says that Cook’s journals, as well as those of his crew, contain  
speculative references about trade between aboriginal groups involving goods that  
the aboriginals obtained from the ships. Canada also submits that the journals do  
not contain direct observations of trade in fish or other marine products between  
aboriginal groups.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
d. James Strange  
Page 58  
[135] James Strange spent a month between June 25 and July 26, 1786, trading  
with aboriginals in Nootka Sound. For most of this time, the vessels were anchored  
off Yuquot. Alexander Walker, an officer on the expedition, prepared an account of  
his visit. Walker’s journal is the first extant journal relating to the WCVI after those of  
the Cook expedition.  
[136] In the first recorded encounter between the Nuu-chah-nulth people and the  
Strange expedition, the Nuu-chah-nulth “sold”, as described by Strange, various  
products, including fish, to the expedition. At p. 43 of his journal, Walker wrote:  
These Canoes were loaden with various kinds of fine fish, particularly some  
very excellent Salmon and Trout. They very readily sold the latter, or any  
other kind of fish, but their demands for Salmon were so exorbitant that we  
refused to take any. Having disposed of as many fish as they could, this set  
of Canoes departed.  
e.  
James Colnett  
[137] A British fur trading expedition under the command of James Colnett visited  
Nootka Sound and the Kyuquot regions in 1787 and again in 1788. Colnett recorded  
that he bought fish from the Nuu-chah-nulth in his first encounter with them on his  
approach to Nootka Sound. He also recorded a subsequent purchase of fish and  
shellfish.  
f.  
John Meares  
[138] John Meares, a British fur trader, was on the WCVI from May to September  
1788. He visited both Nootka and Kyuquot Sounds. He purchased fish from the  
Nuu-chah-nulth at both locations. His journal contains this entry, at p. 130:  
Our supplies of fish were constant and regular, and the natives never failed to  
bring to daily sale as much of this article as they could spare from the  
demands of home consumption.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
g. Don Estevan Josef Martínez – 1789  
Page 59  
[139] Don Estevan Josef Martínez, who had been aboard Pérez’s vessel when it  
visited Nootka Sound in 1774, returned to Nootka Sound in 1789, leading the first of  
several successive Spanish expeditions which established and maintained a  
garrison at Yuquot from 1789 to 1795. Martínez arrived at Nootka Sound on May 5,  
1789, and remained until the end of September 1789, during which time he kept a  
journal which included observations about the Nuu-chah-nulth.  
[140] As already mentioned, Martínez received a letter from Joseph Ingraham  
dated July 7, 1789. Martínez had requested Ingraham, who was a member of the  
crew of the American vessel The Columbia, to prepare an account describing  
Nootka Sound and its inhabitants. Martínez then dispatched the account to the  
Viceroy in Mexico on July 15, 1789.  
[141] An account of the circumstances surrounding the Ingraham Letter and Nootka  
Sound in 1789 was written by Mark D. Kaplanoff, a research scholar at Trinity  
College, Cambridge, and was referred to by Mr. Inglis in his testimony. Kaplanoff’s  
introduction to the Ingraham account is helpful in providing the context in which the  
Ingraham Letter and Martínez’s journal were written:  
For a brief time at the end of the 18th century, Nootka Sound on the west  
coast of Vancouver Island became the principal port of call for the flourishing  
maritime fur trade and the bone of contention in a threatened European war.  
The first Europeans to arrive were the Spaniards on the Santiago, who  
anchored off Friendly Cove in August 1774, bartered a few goods with the  
native Indians, and sailed off the following day. Next came the English  
expedition under Captain James Cook on the Discovery, which arrived on  
March 29, 1778, remained almost a month, and left the sound an erroneous  
name (Nootka is not an Indian word) and a sudden prominence in world  
trade.  
...  
Among those early visitors, the American ship Columbia has an important  
place. Not only did she blaze the trail for the Americans who soon came to  
dominate the maritime fur trade, but she also provided an important basis for  
subsequent American claims to the Oregon country as the first vessel to  
cross the bar of the Columbia river.  
...  
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The circumstances under which Ingraham [an officer on the Columbia]  
composed his account cast some light on the complicated international  
rivalries which centered on Nootka.  
[142] That account, the Ingraham Letter, described, among other things, the  
methods of fishing and whaling used by the inhabitants of Nootka Sound, as well as  
the large variety of marine products caught. With respect to the latter, Ingraham  
listed “whales, porpoises, salmon, a species of the salmon about the same size with  
its nose turning down like a hawksbill ... small bream, halibut, cod, flounders,  
elephant fish, sculpins, frost fish, dog fish, a fish shaped much like a bream  
generally from eight inches to a foot long, [other fish he could not identify] ... eels,  
cuttle fish, coal fish, scate, herrings, and sardines.” He additionally identified various  
types of shellfish: “oysters, mussels, limpets, sea ears, cockles, snails, scallops,  
crabs, and sea eggs.”  
[143] Martínez’s own journals describe the construction of the Spanish garrison at  
Nootka Sound, as well as his lengthy stay in Nootka Sound. They contain numerous  
references to the Spaniards exchanging fish with the Nuu-chah-nulth by barter. For  
example, Martínez wrote on May 6, 1789, “At about six o’clock in the morning there  
approached the side of the frigate many canoes with Indians, who brought fish and  
fresh vegetables, which they bartered for pieces of iron, knives, and glass beads”.  
On May 28, 1789, he noted that although the Indians had moved to a different  
village, they “now and then come to visit us and to sell us some fish by barter.” The  
journals also contained reference to the Ingraham Letter, noting that “the pilot of the  
American frigate, Don Joseph Ingraham, had given me before his departure an  
account written in English of the customs of the Nootka Indians, the herbs and  
plants, trees, birds, quadrapeds, sea fish, and the characteristics of these, the ebb  
and flow of the tide of this port, and a short vocabulary of the Indian language  
translated into English.” On August 25, 1789, Martínez observed that Maquinna was  
moving to his winter habitation at a place called “Tahsis”. He wrote, “His people  
were carrying the boards with which they make their houses when they move from  
one place to another …”. He noted again on September 27, 1789, that the Indians  
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had moved to Tahsis where “they intend to pass the winter there as they are  
accustomed to do every year.”  
[144] On September 30, 1789, Martínez wrote a summary of his observations,  
which included “… the nature and duration of the trade which they [the Nootkans]  
have carried on with the English, and that which they carry on among themselves.”  
In a detailed part of his summary, Martínez wrote as follows, at p. 199:  
He [Cook] inclines to the belief that these metals were obtained from the forts  
on Hudson Bay. On the other hand, I do not believe this to have been the  
case, for the natives of different villages carry on communications and trade  
with each other. It is more probable that the natives from the south, already  
civilized, should have introduced both metals, carrying them from village to  
village. As proof of this, I cite the instance of a silver spoon which a few days  
ago the natives of this port stole from me. The men who had set out in the  
schooner found it a long distance away to the south, among the natives of the  
port of Clayocuat, from whom they bought it in exchange for a piece of iron.  
As further proof that the Indians trade and traffic among themselves and carry  
news from one place to another there is the fact that, although I have not left  
this port, the natives along the strait of Juan de Fuca know very well that I am  
anchored here. The same thing happened in the north, as the English have  
ascertained the arrival of the Aranzazu and of our men, when the latter went  
to Juan de Fuca under my orders.  
... All these natives trade among themselves from one village to another. The  
coast Indians trade with those of the interior villages (bartering fish to them).  
Along the coast they carry on a trade in fox skins, and some give more pelts  
for an amount of copper or iron than do others.  
[Emphasis added]  
[145] Martínez also wrote about the confusion surrounding the origins of the name  
of Nootka Sound:  
The name of Nootka, which was given to this port by the English, is due to  
the failure of the English and of the natives to make themselves understood  
by each other. It came about in this way: Captain Cook’s men were asking  
the Indians by means of signs what was the name of this port. One of the  
English made a circle on the ground with his hand, and then rubbed it out.  
Upon this the Indian answered “Nootak”, which means to take away. Cook  
called it in his diary King George’s or Nootka Inlet, and vessels since have  
known it by the latter name of Nootka. For this reason the Indians have also  
adopted the name, although at first they did not fail to wonder at the  
application of the name. However, the real native name for it is Yucuat,  
which means “therefore”.  
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[146] At the conclusion of his account (p. 212), Martínez wrote a list that included  
the names of the chiefs “of this port”, as well as the names of the “villages which the  
natives of this entrance visit and traffic with to the north.” There he listed a number  
of villages as follows: Shumahat [Cuma’ath]; Nutchalat [Nuchatlaht]; Ahatsut  
[probably Ehattesaht]; Chinequinut; Otlachehat; Chiachsult; Caiyuquat; Clay-is-hut;  
and Xusqui-muquat. (I have indicated in square brackets the current tribe name  
where I could ascertain it from the evidence.) Martínez then listed the names of the  
“villages which the natives of this entrance visit and trade with to the south”:  
Hashcoat; Manoyst; Matchelat; Aotsusut; Kitsmahat; Clay-yoquat; Uttli-it-let; Clay-  
isut; and Tosuch. Finally, he included quite a lengthy vocabulary which had been  
given to him by Ingraham.  
[147] The plaintiffs place considerable weight on the Martínez account to support  
their assertion that the Nuu-chah-nulth traded fish amongst themselves. Canada, on  
the other hand, submits that taken as a whole, there is little in the account to support  
the view that there was a pre-contact integral practice of trading fish amongst the  
aboriginal peoples on the WCVI.  
[148] Dr. Lovisek did not mention in her report the reference in the Martínez journal  
to the natives trading amongst themselves. She was aware of the reference as it  
had been specifically drawn to her attention by counsel for Canada. In her  
testimony, Dr. Lovisek explained her view that Martínez was unreliable, and that she  
relied on other scholars – Gormley, Archer, Moore and Wagner – for this view.  
However, it was demonstrated on cross-examination that none of those scholars  
supported her opinion that the Martínez journal was unreliable, and that some, in  
fact, relied on the journal in their own work. Dr. Moore, for example, noted that  
Martínez was prone to self-praise but that he (Dr. Moore) nevertheless relied quite  
considerably on the Martínez journal.  
[149] Dr. Lovisek also suggested that Martínez had simply copied the Ingraham  
Letter. In cross-examination this, too, was shown to be incorrect. Further, Mr. Inglis  
testified that he found no evidence that Martínez had copied the Ingraham Letter.  
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[150] I conclude that Dr. Lovisek confused opinions about Martínez’s incompetence  
as a commander and his somewhat reckless capture of a British ship which, in turn,  
sparked the Nootka Sound Controversy, with the question of the reliability of his  
journal. I agree with the plaintiffs that there appears to be no basis for Dr. Lovisek’s  
opinion that the Martínez journal should be found to be unreliable.  
h.  
José Mariano Moziño  
[151] Between April 29 and September 21, 1792, Spanish naturalist José Mariano  
Moziño, a member of the Quadra expedition, stayed at the Spanish fort at Yuquot.  
During his more than four months at Yuquot, he gathered a wide range of  
information on the region’s natural and human history. Moziño was a scientifically  
trained botanist and naturalist, and he learned enough of the Nuu-chah-nulth  
language to act as a translator. He was specifically tasked with recording  
observations of the Nuu-chah-nulth at Nootka Sound, and he wrote a lengthy  
account. Dr. Lane testified that Moziño’s account was exceptional amongst the early  
contact period records in the sense that it was “an ethnographic description of the  
sort that a modern ethnologist might prepare”. Dr. McMillan largely adopted this  
view, and Mr. Inglis was of a similar opinion, noting Moziño’s keen observational  
skills.  
[152] Moziño stated at p. 9 of his lengthy report:  
Our residence of more than four months on that island enabled me to learn  
about the various customs of the natives, their religion, and their system of  
government. I believe I am the first person who has been able to gather such  
information, and this was because I learned their language sufficiently to  
converse with them.  
[153] Moziño’s report covered such topics as the Nuu-chah-nulth’s preferred  
clothing, weapons, house furnishings, funerals, marriages, birth rituals, and methods  
of fishing. At p. 65, Moziño wrote as follows:  
Textiles, skins, whale oil, and canoes were apparently the articles they  
exchanged in their commerce, which indisputably must have been desultory  
since it was carried out among nations more or less supplied with the same  
products. In the year [17]78 the aspect of things changed entirely. For that  
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part of America it was the beginning of a memorable epoch. Captain [James]  
Cook gave them some copper, and his crew bought a number of sea otters in  
exchange for pieces of this metal, knives, fishhooks, glass beads, and other  
trifles.  
[Emphasis added]  
[154] Much time in cross-examination of experts at the trial and in submissions was  
spent in consideration of this particular paragraph. Canada contends that Moziño’s  
conclusion about “desultory” trade, given his understanding of the Nuu-chah-nulth  
language and his expertise and opportunity for observation, must be given due  
regard. The plaintiffs, however, say that Moziño’s comment was speculative or,  
alternatively, an inference; either way, it was not an observation.  
[155] So that Moziño’s statement may be understood in its context, I reproduce the  
entirety of the passage that is in issue:  
The kinship ties with the Nuchimanes [Nimkish] and the princes’ custom of  
marrying women of this tribe have resulted in the longstanding commercial  
relations between these villages. Through the agency of the Nuchimanes, the  
Nootkans extended their trade up to Bucareli Inlet and probably up to Queen  
Charlotte Island, in addition to the trade which they certainly have had, and  
now have, with the continent, across the strait of Juan de Fuca. They told me  
of having seen, after a trip of several days, a certain class of women who  
had, under their natural mouth, an additional one that held a small stick of  
wood, and these, for certain, are not found except in the northern countries  
which I have just cited.  
The wool they intertwine with the cedar fibers is of a quadruped that is not  
found anywhere on the island, and if by chance it is the buffalo, as I have  
suspected, it is surely the one that abounds in the north of our most remote  
possessions of New Mexico. When Captain Cook saw the Nootkans for the  
first time, he found that they already had a knowledge of iron and copper, and  
it appears indisputable that they acquired these metals by trading on the  
continent with other nations which came to make exchanges [at a place]  
which, according to Captain [George] Vancouver, is no more than four  
hundred miles to the east of a port in which he was anchored inside the strait.  
I do not have its name at present.  
To the south they appear not to have gone farther than the Island of Tutusi  
[Cape Flattery] and Port of Nuñez Gaona [Neah Bay], to this point the same  
language is spoken with very little difference from that at 51º. Textiles, skins,  
whale oil and canoes were apparently the articles they exchanged in their  
commerce, which indisputably must have been desultory since it was carried  
out among nations more or less supplied with the same products. In the year  
[17]78 the aspect of things changed entirely. For that part of America it was  
the beginning of a memorable epoch. Captain [James] Cook gave them  
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some copper, and his crew bought a number of sea otters in exchange for  
pieces of this metal, knives, fishhooks, glass beads, and other trifles. The  
natives believed that they had succeeded in unloading their merchandise at a  
very advantageous price. In effect they had, considering the circumstances  
of that time, because they tripled their small capital by means of the copper  
which, leaving the hands of the Nootkans, began to disperse itself throughout  
almost all the Archipelago.  
[156] Dr. Lovisek quoted the first paragraph of this passage in her report. Because  
she excluded any trade between kin within her definition of commercial trade, she  
consequently discounted this passage as evidence of commercial trade. Dr. Lane  
did not mention this passage in her report, and on cross-examination, she dismissed  
it as inaccurate. Dr. McMillan did not comment on Moziño’s observation in his  
report. Mr. Inglis said that he thought it was unclear whether Moziño directly  
observed any trading. He did testify that Moziño would have had ample opportunity  
to obtain this information directly from the Nuu-chah-nulth informants.  
[157] The plaintiffs contend that although Moziño did not mention marine products  
as an item of trade, he also did not reach the positive conclusion that there was no  
aboriginal trade in marine products. They further state in their written submissions  
that “[Moziño’s] speculation is not based on information he received from informants  
but rather on his own supposition that because this trade was ‘carried out among  
nations more or less supplied with the same products’ it must have been desultory.”  
The plaintiffs say that the speculative nature of the Moziño statement is apparent on  
its face. Moziño states “textiles, skins, whale oil and canoes were apparently the  
articles they exchanged …” and that this trade “indisputably must have been  
desultory.”  
[158] The passage from Moziño’s journal cited above began with observations of  
kinship ties with the Nimkish, who populated the eastern side of Vancouver Island.  
Moziño described the trade trails across the Island about which several expert  
witnesses gave evidence. He concluded that there were “longstanding commercial  
relations between the Nimkish and the Nuu-chah-nulth of Nootka Sound.” He then  
discussed the extent of trade as far north as the Queen Charlotte Islands. He noted  
that Captain Cook observed that the Nuu-chah-nulth at Nootka Sound already had  
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knowledge of iron and copper, from which he and Cook inferred a wide-spread  
trade. Moziño observed that to the south the same language was spoken and that  
the trade to the south must have been desultory since it was carried out among  
nations more or less supplied with the same products.  
[159] In my view, the passage as a whole concerns a discussion of indigenous  
trade: first, to the Nimkish, that is, across the island; second, to the north as far as  
the Queen Charlotte Islands; and third, to the south. The portion of the passage that  
includes the description of trade as being “desultory” is only with reference to the  
southbound trade, which Moziño speculated was desultory because the Nuu-chah-  
nulth tribes to the south were supplied with the same products.  
[160] Dr. McMillan considered Moziño to have been mistaken in assuming that  
resources were the same throughout the different groups’ territories. Dr. Lovisek  
also noted the extreme variation in salmon runs among different local group  
territories that resulted in hunger and starvation, although she said that this was a  
motivation for amalgamation, not trade or barter. (I consider this later in my  
discussion of the history of the individual tribes.) Likewise, Dr. Lane considered  
Moziño’s comment to be erroneous because it wrongly assumed that there was no  
variation in the timing and availability of resources. Dr. Lane also noted that Moziño  
did not consider other reasons that people desire goods (including that they are  
different and come from afar) and that Moziño’s account is not consistent with  
descriptions in other documents.  
[161] I conclude from Moziño’s text and the expert evidence interpreting it that there  
was trade between the Nuu-chah-nulth at Nootka Sound but that the southbound  
trade to other Nuu-chah-nulth tribes was, in Moziño’s opinion, limited.  
i.  
John Jewitt  
[162] On March 22, 1803, Chief Maquinna attacked the American fur trading  
vessel, The Boston, and captured the vessel’s armourer, John Jewitt, and its  
sailmaker, John Thompson. The rest of the crew were all killed. Jewitt and  
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Thompson were held in captivity until July 1805. Jewitt kept a journal during his  
captivity and it represents a first-hand account of aboriginal daily activities during the  
post-contact period in Nootka Sound. In 1807, subsequent to his release, Jewitt  
published his journal. Later in 1815, a narrative account of his experiences, ghost  
written by Richard Alsop, was also published. Jewitt participated in the preparation  
of this narrative.  
[163] In the introduction to the 1807 journal, Jewitt described arriving in Nootka  
Sound on March 12, 1803. The Boston was anchored five miles above the village of  
Yuquot. Many visits took place between the Nuu-chah-nulth and the captain and  
crew of The Boston. A dispute arose over an apparently faulty musket that the  
captain had traded to Chief Maquinna. On March 22, Chief Maquinna suggested to  
the captain that the crew would be well advised to catch fresh salmon for their  
onward journey. Maquinna and his men then ambushed the crew and killed  
everyone except for Jewitt and Thompson. Jewitt was told that he would be a slave  
to Maquinna and that his life would be spared, largely because he was an armourer  
(blacksmith) and therefore useful for metal working. Maquinna also expressed the  
view that Thompson, the sailmaker, would be useful for making sails for the canoes,  
and his life, too, was spared. Thompson died of an illness shortly after being  
rescued and returning to the United States.  
[164] Jewitt learned the Nuu-chah-nulth language. He made frequent, but not daily,  
entries in his journal; at times there are gaps of several days or longer.  
[165] Jewitt wrote in his journal that a few days after the capture of The Boston, a  
great number of canoes from no less than 20 tribes to the north and south arrived at  
Nootka Sound. At p. 46 of the narrative, Jewitt noted the tribes coming to receive  
from Maquinna the bounty from The Boston. He wrote:  
In this manner tribes of savages from various parts of the coast, continued  
coming for several days, bringing with them, blubber, oil, herring-spawn, dried  
fish and clams, for which they received, in return, presents of cloth, &c. after  
which they in general immediately returned home. I observed that very few, if  
any of them, except the chiefs, had arms, which I afterwards learned is the  
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custom with these people, whenever they come upon a friendly visit or to  
trade, in order to shew, on their approach, that their intentions are pacific.  
[166] In a lengthy section of the narrative beginning at p. 59, Jewitt described the  
“manners and customs of the people of Nootka Sound”. In this section, there are  
some references to inter-tribal trade. At p. 95 he wrote:  
The trade of most of the other tribes with Nootka, was principally train oil, seal  
or whale’s blubber, fish fresh or dried, herring or salmon spawn, clams, and  
muscles, and the yama, a species of fruit which is pressed and dried, cloth,  
sea otter skins, and slaves.  
[167] And at p. 96:  
Many of the articles thus brought, particularly the provisions, were considered  
as presents, or tributary offerings, but this must be viewed as little more than  
a nominal acknowledgment of superiority, as they rarely failed to get the full  
amount of the value of their presents. I have known eighteen of the great  
tubs, in which they keep their provisions, filled with spawn brought in this  
way.  
[168] Jewitt recorded 116 visits to Maquinna from other tribes. According to  
Mr. Inglis, Jewitt recorded the names of 16 tribes that visited and traded with Chief  
Maquinna in Nootka Sound over the two-year period he was captive. Twelve of  
those names can be equated with contemporary Nuu-chah-nulth communities, two  
are not recognized, and two are non-Nuu-chah-nulth communities – one from the  
north and one from the south.  
[169] Dr. Lane summarized the journal entries relating to visits from other tribes in a  
table, as follows:  
Tribe  
Current Tribe Name  
Number of  
Visits to  
Maquinna  
35  
Ai-tiz-arts, (Aitizzarts, Ai-tiz-zarts)  
Sarvanh, Savahina (Savin-ars)  
Wickeninishes, Wickeningish  
(Wickinninish)  
Ehattesaht  
Tsawunath  
Tla-o-qui-aht  
18  
13  
Esquates, Esquatts (Eshquates)  
Visits by tribes not named in journal  
Cla-u-quate, Clauquates (Kla-oo-  
quates)  
Hesquiaht  
11  
10  
5
Tla-o-qui-aht  
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Check-ach-lizaits, Cheack-clitz-arts,  
Chech-cliz-arts, Check-cliz-arts  
Clar-zarts, Claz-arts Clarazarts, Clar-  
zils (Kla-iz-arts)  
Chicklesaht  
4
Makah  
4
(Qwidičča?atx)  
Kyuquot  
Caruquate (Cayuquets)  
New-chee-mass, Newcheemass  
(Newchemass)  
4
3
Nimpkish  
Newchadlates, New-chat-laits (New-  
chad-lits)  
Nuchatlaht  
3
Ahowsarts, Ah-ow-zerts (Ah-owz-arts)  
Shoemadeth, Chewmadart (Schoo-  
mad-its)  
Ahousaht  
Cuma’ath  
2
2
Chee-chu-ate  
tribal name not  
recognized  
1
1
Clar-ah  
tribal name not  
recognized  
Michlate (Mich-la-its)  
Muchalaht  
1
1
Moowachart (Mo-watch-its)  
Total visits to Maquinna  
Mowachaht  
118  
[170] She also summarized the trade items brought by those tribes to Maquinna:  
Trade Item  
Number of Times Traded  
Ifraw (dentalia)  
16  
12  
10  
9
Herring spawn  
Train oil  
Seals  
Skins (not specified)  
Salmon spawn  
Whale blubber  
Dried Salmon  
Geese (not specified)  
Slaves  
9
7
6
4
4
4
Spawn (not specified)  
Herring  
3
2
Fresh herring  
Fresh Salmon  
Dried clams  
Canoes  
2
2
2
2
Dried herring  
Salmon  
1
1
Dried cockles  
Sea otter skins  
Fruit  
1
1
1
Cloth  
1
[171] Dr. Lane regarded these as mostly commercial exchanges.  
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[172] Canada raises the following points concerning the reliability of Jewitt’s  
journals and narrative as evidence of pre-contact indigenous trade in fish:  
1.  
Jewitt was captured some 29 years following contact. Within this time  
frame, the WCVI, and Nootka Sound in particular, had become the  
center of an intense maritime fur trade. From 1774 to 1811, over 50  
trading and exploration expeditions are known to have visited the area.  
This contact resulted in significant changes to the economies of the  
groups on the WCVI and particularly of those close to the centers of  
trade. As a result, Canada argues, what Jewitt observed was not an  
unchanged aboriginal culture but, rather, one that had been changed  
significantly by European contact.  
2.  
3.  
4.  
As Jewitt was only 20 years old at the time of his captivity, and trained  
as a blacksmith, Canada questions the accuracy of his observations.  
Jewitt wrote his contemporaneous journal in a terse style that provides  
very little context as to the nature of the events he witnessed.  
Canada questions the accuracy of the later published narrative,  
particularly given that it was ghost written. Canada notes that it is only  
in this narrative that Jewitt describes trade.  
5.  
Jewitt appears to acknowledge the marine resources brought to  
Maquinna as tribute offerings from groups connected politically to  
Maquinna. Further, given the distinct forms of exchange that existed  
among aboriginal groups, Canada argues that only groups without  
political connections to Maquinna could be considered to have been  
engaged in trade. It says that out of a total of 784 entries in Jewitt’s  
journal, only 29 of the transactions could be considered independent of  
Maquinna. Even within that number, there is some doubt about the  
independence of certain groups.  
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6.  
Jewitt only observed exchange patterns in Nootka Sound, and it is not  
possible to determine whether those patterns would have been present  
elsewhere in the claimed areas.  
7.  
Much of the bounty traded by Maquinna and recorded as such by  
Jewitt was the result of the pillaging of The Boston and cannot be  
considered typical of indigenous trade.  
[173] The plaintiffs note that it is not only Jewitt’s narrative that includes references  
to trade, but also his journal which includes, for instance, the following notation:  
Other tribes of Indians come every day to trade with our Chief, bringing with  
them whale’s blubber, train oil, dried clams, herrings &c. and receiving in  
return cloth &c.  
[174] I discuss the expert evidence about Jewitt and my conclusions about the  
reliability of his journal later in these Reasons after considering the whole of the  
evidence on trade.  
j.  
Alexander Walker and the Strange Expedition  
[175] A British fur-trade expedition commanded by James Strange spent the period  
June 25-July 26, 1786, anchored off Yuquot trading with aboriginals in Nootka  
Sound. Alexander Walker, the commander, prepared an account of the visit. He  
and others from the expedition travelled up the outside of Nootka Island and  
encountered a group of Nootkans returning from a trade expedition. Walker  
described their encounter, at p. 53:  
We here [past Skuna Bay] met with a Canoe, which belonged to our friends  
at Nootka. We soon recognized each other. The appearance of a Canoe at  
this distance from the Sound was a proof of a commercial intercourse existing  
of considerable extent, and that the relations of friendship prevailed beyond  
the usual range of Savage Life. The partnership of tribes is the most limited  
and jealous state of Society in existence. We told them whither we were  
going, and they advised us not to proceed farther; as they had just come from  
the same pursuit, and had been able to procure nothing, but a few pieces of  
Fur.  
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[176] Walker provided several other descriptions of Nootka trading relations with  
other tribes:  
Moquilla [chief at Nootka Sound] told us, that they navigate a great way both  
to the North and South, and that on such Voyages they have been absent  
several months.  
[177] And at p. 59:  
The inhabitants of the Sound, having disposed of all the Furs, in their  
immediate Possession, were obliged to apply to the Neighbouring tribes for a  
supply, to enable them to continue the trade, and on this errand Kurrighum  
made two or three trips to the Southward, and as often returned loaded with  
rich Furs. At the same time, either his, or Mokquillas agents sweeped the  
Coast a great way to the Northward, and brought us likewise the produce of  
that quarter ...  
k.  
Robert Haswell and The Columbia  
[178] Robert Haswell was an officer with The Columbia expedition that wintered in  
Nootka Sound in 1788-1789. In 1789, he prepared a log in which he compiled a list  
of the “Names of the Towns which they [the Nootka] trade with to the Southward of  
Nootka Sound” and a second list of “Names of Towns which they visit and trade with  
the Northward of Nootka Sound”. Eighteen tribes are listed in their correct  
geographical order. Nine towns were “to the Northward of Nootka Sound”: “Shuma  
athat, Noocho tlat, Ahatesut, Che neckenet, Otluckchaal, Kyuquot, Chee ah clee  
sutt, Cly ish hut, Qushkeemoowhoat”. Nine towns were “to the Southward of Nootka  
Sound”: “Hash coal, Matchetlat, Manoish, Otsoosutt, Kitsmahat, Clyoqot, Ut looetlet,  
Clyees uh, Tootooch.”  
[179] These two lists bear a striking similarity to those prepared by Martínez and  
Jewitt, lending strength to the argument that trade was an integral component of the  
Nuu-chah-nulth culture. The translation of the Nuu-chah-nulth language to English  
results in a variety of different spellings of the same tribe but the names are,  
nevertheless, sufficiently similar phonetically to enable me to infer that the lists  
compiled by Haswell, Jewitt, and Martínez refer to many of the same tribes.  
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l. Espinosa y Tello  
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[180] In imitation of Cook, a Spanish scientific expedition under the command of  
Alejandro Malaspina visited Nootka Sound between August 12-28, 1791.  
Espinosa y Tello, one of the expedition’s officers, kept a journal in which he recorded  
observations about the Nootka peoples’ trading relationship with the Nimpkish.  
m.  
Caamano  
[181] As noted by Mr. Inglis, Caamano, a Spanish officer who wintered at Nootka in  
1790-1791, provided details of the products of intertribal trade at Nootka:  
Their trade consists of otter pelts, bear skins, and deer hides, a kind of  
coarse cloth which they make from pine bark, with which they make blankets  
about six feet long and about three and one half feet wide, in which they wrap  
themselves, sleeping mats of the same material, large tanned chamois skins,  
fish, canoes, paddles and children.  
3.  
Post-contact ethnographic evidence: Sproat and Drucker  
[182] The ethnographic evidence introduced in this case included the studies of  
Philip Drucker, Gilbert Sproat, and Edward Sapir. These individuals observed and  
interviewed the Nuu-chah-nulth about their way of life and early memories of their  
way of life. Drucker’s The Northern and Central Nootkan Tribes is considered to be  
the most comprehensive ethnographic description of the Nuu-chah-nulth.  
[183] Drucker’s time horizon generally refers to Nuu-chah-nulth life from the 1870s  
to the early 1900s. He wrote in his introduction, at p. 15:  
As a consequence, I made an effort while in the field to place my information  
so far as possible, and to make it first-hand evidence by informants, not  
hearsay. Where informants had specific data on earlier practices, I noted it  
as such. The bulk of the material in the present report, except, of course, that  
of formal traditions and war tales, refers to the days of childhood to early  
adulthood of the informants, who ranged in age from the fifties to the  
seventies in 1936 and 1937. That means that most of the data refer to  
Nootkan life from the 1870’s [sic] to the early 1900’s [sic]. A few phases of  
custom – techniques and usages specifically described by their elders, and  
personal anecdotes told as moral lessons, or as amusing incidents – go back  
a little earlier, but not much. I wish to emphasize, therefore, that this  
ethnography is intended to be a description of the Nootkan tribes during the  
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last three, or at most four decades of the nineteenth century, except where  
specified as earlier.  
[184] Drucker noted that exceptions to his time horizon were formal traditions and  
war tales. As noted by the plaintiffs, this would include stories of wars, as well as  
the transmission of hereditary rights and privileges, such that Drucker’s ethnography  
provides useful information dating further back than 1870.  
[185] Dr. McMillan explained that ethnographic accounts of traditional culture are  
sometimes descriptions of traditions that can be assumed to have originated long  
before the ethnographic account was given. He expressed the view, for instance,  
that Jewitt’s descriptions of harvesting techniques for salmon and herring were  
traditional practices unchanged by European culture. He described these practices  
as having considerable “time depth”, meaning that they had existed in time earlier  
than the recorded observations.  
[186] Sproat was one of the first non-Nuu-chah-nulth settlers on the WCVI. He  
arrived in Alberni in 1860 to establish the Anderson sawmill operation. From the end  
of the fur trade in the first decades of the 1800s until Sproat’s arrival, there had been  
very little contact between Europeans and the Nuu-chah-nulth. Sproat spent over  
five years in Alberni. During his stay, he was appointed Justice of the Peace and de  
facto government agent for the Colony of British Columbia. He returned to England  
in 1865 but came back to British Columbia in 1876 and was appointed to the three-  
person joint Indian Reserve Commission. He then became the sole commissioner  
until he resigned in 1880.  
[187] Sproat wrote a comprehensive ethnography entitled Scenes and Studies of  
Savage Life, notes for which he kept on a contemporaneous basis. He published his  
ethnography in 1868 after his return to England. Sproat wrote about his  
observations of the 1860s but, as Mr. Inglis testified, Sproat recognized that the  
cultural practices of the Nuu-chah-nulth were longstanding. He wrote about the  
remoteness of the “Aht” district. He noted that there had been little Euro/American  
influence in Barkley Sound prior to the 1860s, that there had only been 14 maritime  
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expeditions entering Barkley Sound between 1787 and 1817, and that there had  
been virtually no contact from 1817 until the 1850s. Both Mr. Inglis and Dr. McMillan  
considered Sproat’s observations to have more time depth than the period of his  
observations.  
[188] Sproat wrote about the motivations for trade in fish products. He cited tribal  
specialization, variation in fishing activity and desire to obtain materials from outside  
the Nuu-chah-nulth territories, at p. 19:  
There seems to be among all the tribes in the island a sort of recognized  
tribal monopoly in certain articles produced, or that have been long  
manufactured in their own district. For instance, a tribe that does not grow  
potatoes, or make a particular kind of mat, will go a long way, year after year,  
to barter for those articles, which, if they liked, they themselves could easily  
produce or manufacture.  
[189] He further wrote, at p. 79:  
An active trade existed formerly among the tribes of this nation, as also  
between them and the tribes at the south of the island and on the American  
shore. The root called gammass, for instance, and swamp rushes for making  
mats, neither of which could be plentifully produced on the west coast, were  
sent from the south of the island in exchange for cedar-bark baskets, dried  
halibuts and herrings. The coasting [sic] intertribal trade is not free, but is  
arbitrarily controlled by the stronger tribes, who will not allow weaker tribes to  
go past them in search of customers; just as if the people of Hull should  
intercept all the vessels laden with cargo from the north of England for  
London, and make the people of London pay for them an increased price,  
fixed by the interceptors.  
[Emphasis added]  
[190] Sproat also commented on the Nuu-chah-nulth’s trading acumen, at p. 78:  
Commodities are obtained among the Ahts from one another by bartering  
slaves, canoes, and articles of food, clothing or ornament; and from the  
colonists by exchanging oil, fish, skins, and furs. All the natives are acute,  
and rather too sharp at bargaining. The Ahts are fond of a long conversation  
in selling, but seldom reduce their price. … News about prices, and indeed  
about anything in which the natives take an interest, travels quickly to distant  
places from one tribe to another.  
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[191] At p. 228, he wrote:  
Many disputes arise between tribes on the finding of dead whales near the  
undefined boundaries of the tribal territories. If the quarrel is serious, all  
intercourse ceases; trade is forbidden, and war is threatened. By-and-by,  
when the loss of trade is felt, negotiation is tried.  
[192] The plaintiffs rely on Dr. McMillan’s opinion that Sproat’s observations have  
considerable time depth. As noted, prior to Sproat’s arrival in the Alberni Valley,  
there had been very little contact between the southern Nuu-chah-nulth groups and  
Europeans. Moreover, there had been a long period of virtually no contact between  
Europeans and any Nuu-chah-nulth group since the end of the maritime fur trade in  
the early 19th century. The plaintiffs say, in reliance on Dr. McMillan’s opinion, that  
it is difficult to imagine what Sproat could have meant by an active trade “formerly  
existing” if he did not mean prior to European times.  
[193] In their written submission, the plaintiffs argue:  
… Sproat’s account of trade in fish by the Nuu-chah-nulth among themselves  
and with neighbouring groups is good evidence of Nuu-chah-nulth’s pre-  
contact trading activities. His descriptions are of indigenous trade for  
indigenous products and his observations are either expressly descriptions of  
earlier times or are of a society that has been largely uninterrupted by  
European contact. The contact period accounts of trade in fish “provide the  
link to pre-contact times.”  
[194] Canada notes that Drucker does not speak at all about trade as a means by  
which deficiencies in locally available resources were addressed. In fact, Drucker is  
virtually silent on the topic of trade. The plaintiffs respond that even if the absence  
of references to trade in Drucker’s work could be taken as evidence that the practice  
did not occur, it could only be evidence that it did not occur during Drucker’s time  
frame of 1870 to 1930. They submit that during most of that period, the Nuu-chah-  
nulth had already moved heavily into the commercial fishery.  
[195] Canada also says that Sproat’s reference to trade existing formerly among  
the tribes cannot be considered evidence of a pre-contact practice in trade of  
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fisheries resources because Sproat was clearly writing almost 100 years after  
contact.  
[196] Drucker does not discuss “trade in fish” per se in his ethnography of the Nuu-  
chah-nulth. Dr. McMillan considered the absence of discussion of trade in Drucker  
to be “puzzling given that other informants writing at the same time such as Gilbert  
Sproat do refer to trade.” Drucker’s informants were speaking about their  
recollections of the period 1870 to 1900, whereas Sproat was recording his actual  
observations from 1860 to 1865. I would therefore place greater weight on Sproat’s  
observations on this topic than Drucker. I find Sproat’s observations to be accurate  
observations of trade. I find, as well, that his observations did have considerable  
time depth.  
4.  
Other evidence about the way of life of the Nuu-chah-nulth at contact  
[197] In addition to the direct evidence of the explorers and the ethnographic  
evidence reviewed in the previous section, there is other evidence of the Nuu-chah-  
nulth way of life that is important in determining whether indigenous trade in fish  
existed and whether it was integral to their culture at contact. I review other aspects  
of the Nuu-chah-nulth way of life in the following sections under the headings:  
Dependence on fish; Political organization; Kinship; Feasting, potlatches and tribute;  
Warfare and raiding; Trade routes; and Gifts as a form of trade.  
[198] It is Canada’s contention that an examination of these other aspects of the  
Nuu-chah-nulth way of life provides evidence of a society that did not trade in fish. It  
submits that the way of life of the Nuu-chah-nulth at contact was characterized by a  
kinship economy; that is, the primary means by which groups obtained access to  
fisheries resources was through kinship ties, not trade. Surplus fish was distributed  
through feasting and potlatching, and warfare and raiding were used to obtain  
control of fishery resources. Canada submits that trade in marine resources was not  
an integral feature of Nuu-chah-nulth culture.  
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[199] Dr. Lovisek captures Canada’s position on the absence of indigenous  
commercial trade between the Nuu-chah-nulth in the following passage in her report,  
at p. 86:  
Precontact population density, a rough coastal environment, a strict system of  
territory and titleholder rights including tribute and feasting and the  
prevalence of intertribal warfare would have limited the freedom of movement  
between local groups and limited the development of commercial exchange.  
In 1803 to 1805 (the time of Jewitt’s enslavement ) it still was not possible to  
travel freely between territories. The development of federations and the  
introduction by Euro-Americans of the sail to the canoe, would, for example,  
have allowed more freedom of movement, but any motivation for the  
bartering of marine resources was likely offset by the cultural practices of  
tribute, alliance through marriage, gift, feast and raiding.  
[200] The plaintiffs point to evidence such as trade trails crossing Vancouver Island,  
extended notions of kinship, differences in the availability of resources for different  
groups, inter-marriage for the purpose of facilitating trade, and various other aspects  
of Nuu-chah-nulth culture as proof of the existence of a trade in fish.  
[201] Accordingly, I will now focus my examination of the evidence on various  
features of Nuu-chah-nulth society or culture in order to determine whether the  
plaintiffs’ assertion of trade between indigenous groups is supported by this cultural  
evidence.  
a.  
Dependence on fish  
[202] What is not in dispute in this lawsuit is that prior to and following contact with  
Europeans, the Nuu-chah-nulth were a fishing people and that fishing was an  
overwhelming feature of their pre-contact way of life.  
[203] Captain Cook, for instance, described the “amazing abundance of fish stored  
in the Nuu-chah-nulth long houses” he visited. Alexander Walker of the Strange  
expedition noted in 1786 the vast number of fish that were caught every day. John  
Meares described the fishing harvest as involving prodigious quantities. In one  
journal entry, John Jewitt noted that the natives came home with “90 large baskets  
full of halibut.” In the later historical period, Governor James Douglas noted in 1855  
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the infinite number of halibut caught by the Nuu-chah-nulth. In 1858, William  
Banfield commented that the immense quantities of fish were equal to anything he  
had seen in England. In 1868, Gilbert Sproat wrote, “this fish [salmon] is, to man,  
here what the corn crop is in England, or what the potato crop was in Ireland.” He  
also wrote, at p. 53:  
The principal food of the natives, as before alluded to, is fish – salmon,  
whale, halibut, seal, herring, anchovy and shellfish of various kinds. Their  
commonest article of food at all times is dried salmon, whale blubber,  
preparations of salmon roe, and the heads of smaller fish are esteemed  
delicacies.  
[204] Indian Superintendant Powell wrote in 1875 that the Nuu-chah-nulth were  
“toilers of the sea and happily so.”  
[205] Canada agrees with the plaintiffs’ characterization of the Nuu-chah-nulth as  
relying heavily on fishing but qualifies this on the basis that their harvest was for  
food, social and ceremonial (“FSC”) purposes in rivers and near shore areas.  
b.  
Political organization  
[206] An understanding of Nuu-chah-nulth political organization is necessary to  
address the question of kinship and whether trade was between independent groups  
or, as Canada argues in respect to Jewitt’s observations, whether what was  
observed was primarily tribute between groups politically connected to Maquinna.  
[207] Some time prior to contact, the Nuu-chah-nulth lived in local groups.  
Mr. Inglis described the socio-political organization of the Nuu-chah-nulth in these  
terms, at p. 59 (March 2007 report):  
Sociopolitical Units  
Drucker defined three sociopolitical units: local group, tribe, and  
confederacy. The fundamental social unit Drucker identified as the “local  
group.” It was “the basic unit of which more elaborate ones were  
compounded.” Drucker described the local group as:  
.... a family of chiefs who owned territorial rights, houses and various  
other privileges. Such a group bore a name, usually that of their  
“place” (a site at their fishing ground where they “belonged”), or  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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sometimes that of a chief; and had a tradition, firmly believed, that  
they have descent from a common ancestor.  
The name of the local group is generally taken from the name of the place of  
origin of the highest-ranking family, usually a village at a salmon river. The  
suffix “aht,” meaning “person, or people of” is added to this name. An  
example of a local group name is Ahousaht, meaning “the people of Ahous.”  
Membership in the local group is based on kinship. Each local group is made  
up of a number of sub-groups, variously termed family groups, lineages, or  
houses. The head of the highest ranked family group is the Chief of the local  
group.  
The second sociopolitical unit identified by Drucker is the tribe, which  
consisted of “united local groups.” Drucker wrote:  
“Among most Northern Nootkans these local groups were not  
autonomous. Each was formally united with several others by  
possession of a common winter village, fixed ranking for their  
assembled chiefs, and often a name. To such a union the term “tribe”  
is applied....”  
Each local group had a house or houses at the tribal village. The houses in  
the village were ranked, with the highest ranked house located in the centre  
and the lowest ranked houses at either end.  
The third sociopolitical unit is the confederacy which Drucker defined as  
“formally linked tribes:”  
“The confederacy was cemented by ties of the same nature as those  
uniting a number of local groups into a tribe: a common village site –  
in this case a summer one - to which all, or most, of the people  
repaired for sea fishing and hunting; seriation of their chiefs,  
expressed in the order of seating on ceremonial occasions; and a  
name. These largest groups corresponded fairly well to major  
geographical divisions [for example, Kyuquot Sound].”  
The name of the confederacy was generally taken from one of the component  
local groups. Most local groups had a house at the confederacy village.  
Again, house locations were ranked, with the highest ranked located in the  
centre of the village and the lowest ranked at either end.  
In the Contact period records, towns, villages, or tribes are the most  
commonly referenced sociopolitical unit. These towns or villages generally  
were large and populous. In anthropological terms, the sociopolitical  
structure represented by these large and populous villages is either a tribe or  
a confederacy. Other settlements were noted but these were generally small  
and likely associated with resource activities.  
In the Colonial and post-Confederation period records, the tribe is the  
referenced sociopolitical unit. In anthropological terms, the sociopolitical  
structure represented by tribe is either a tribe or a confederacy, as described  
by Drucker.  
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[208] The other experts did not disagree with Mr. Inglis’ description. I accept this  
evidence. What is important is that exchanges or tribute between members of a  
local group or tribe ruled by one chief could not be considered trade. However, as  
will be discussed below, the existence of distinct polities was quite changeable.  
Nuu-chah-nulth society was marked by the formation of various confederacies,  
alliances based on marriage, and forced acquisitions from time to time. One of the  
challenges in assessing the evidence is to tease out from that evidence, such as the  
observations of Jewitt, whether there was a regular trade between distinct entities or  
loosely connected entities, as opposed to within a single group. Cook and others  
noted that other tribes were treated as strangers in the sense that they had to seek  
Maquinna’s permission to trade with him. Below, I will address this issue of the  
inter-connectedness of different tribes.  
c.  
Kinship  
[209] Canada’s position is that kinship was a central principle upon which the  
societies and economies of the pre-contact Nuu-chah-nulth local groups were  
based. Canada says that the establishment of kinship ties was a primary means by  
which groups obtained greater access to marine resource harvesting locations.  
Kinship, it submits, was the defining feature of exchange relationships; exchanges  
were not conducted between individuals who did not share some kinship connection.  
[210] Kinship relationships and their connection to trade are relevant because  
Canada relies on Dr. Lovisek’s definition of commercial trade. She defines  
commercial trade as “the exchange of large quantities of a non-mammal marine  
resource to unrelated persons or persons outside a kinship network.” Counsel for  
Canada advised me that Dr. Lovisek authored this definition of commercial trade.  
[211] The plaintiffs do not accept this definition. In particular, they say that the  
concept of kinship in the context of the Nuu-chah-nulth relationships between  
different tribes is much broader than a modern understanding of the term “kinship”.  
They also argue that kinship relations amongst the Nuu-chah-nulth coexisted with  
commercial relations and were often established for the purpose of facilitating trade.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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Later I will discuss what I consider to be problems with Dr. Lovisek’s definition of  
commercial trade.  
[212] All of the experts testified as to the importance of kinship.  
[213] Ethnographer Drucker stated:  
It was a fundamental tenet of all Nootkan social behaviour that one had  
dealing only with one’s kin. The actual practice was for the remotest  
relationships to be reckoned valid enough to entitle one to marry into, live  
with, or give potlatches to almost any group he chose. For an outsider the  
concept of relationship was extended not only to all the local group of a family  
to which he claimed kinship, but to the whole tribe or even confederacy.  
[214] Dr. Boxberger, Mr. Inglis and Dr. Lane agreed with Drucker’s statement and  
agreed that his description of the importance of kinship had time depth.  
Dr. McMillan adopted a more nuanced approach. He stated that “in this traditional  
society, virtually all amicable relations were conducted in an idiom of kinship and  
descent”.  
[215] Mr. Inglis explained the importance of marriage between chiefly families as a  
means to increase access to resources and territories in his report, at p. 29:  
Marriage between chiefly families was fundamental in formalizing alliances,  
both political and economic, between families and tribes. Drucker wrote:  
... marriage, in the Nootkan view, was a formal alliance between  
two family groups rather than between two individuals. That is to  
say, a union was recognized as legitimate only when formally  
approved by the recognized family heads through a series of gift  
exchanges.  
Intermarriage established broader kin ties that allowed increased access to  
territories and resources. Drucker highlighted the importance of  
intermarriage between Nuu-chah-nulth tribes in twelve pages which he  
devoted to explaining the details of one high ranking marriage.  
Contact Period  
In 1788, Meares noted the importance of women in intertribal relations of the  
Nootka:  
From him [Callicum] we learned that there were several very  
populous villages to the Northward, entrusted to the government  
of the principal female relations of Maquilla and Callicum; such as  
grandmothers, mothers, aunts, sisters.... The whole forming a  
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Page 83  
political band of union, not very unlike to [sic] the general system  
of government in Europe, at an early period of its civilization, and  
which is well known under the appellation of the feudal system.  
Meares is referring to intermarriage which was also noted in many other  
journals from the Contact period.  
In 1789, Haswell wrote of Nuu-chah-nulth marriage and intermarriage among  
chiefly families:  
A plurality of wives is alowed [sic] among them and every person  
has as maney wives as he can purchace the parents of Chiefs  
generaly purchace their sons Wives from distant tribes at a very  
exorbutant prise of Iron Copper Canoes etca.  
Chief Maquinna from Nootka Sound had at least three wives, one being the  
daughter of the Ehattesaht Chief, Hannape. Callicum, another Nootka Sound  
Chief, was married to the sister of the Tla-o-qui-aht Chief, Wicananish. In  
1793, members of the Vancouver expedition noted part of the ceremonies  
relating to the marriage of Maquinna’s daughter to Wicananish’s son.  
Intermarriages were also noted with non-Nuu-chah-nulth tribes. For example,  
Tatoosh, the Chief of the island now bearing his name located off Cape  
Flattery, Washington, was married to women from chiefly families in Tla-o-  
qui-aht and Ahousaht. And Chiefs of Mowachaht and Ehattesaht in Nootka  
Sound intermarried with the chiefly families of the Nuchimanes [Namgis] from  
the eastern side of Vancouver Island.  
Intermarriage between chiefly families was recorded by a number of the early  
traders as a basis for trade networks. For example, in 1792 Mozino stated:  
The kinship ties with the Nuchimanes and the princes’ custom of  
marrying women of this tribe have resulted in the longstanding  
commercial relations between these villages.  
Colnett, while anchored in Clayoquot Sound in 1792, noted an intermarriage  
between chiefly families from Nootka and Tla-o-qui-aht:  
In the Evening an Elderly woman, the Chief’s [Wicananish] sister,  
came....her husband a Second Rank Chief at Nootka ... lost his  
life, being murdered by Don Estevan Martinez.  
This Chief was Callicum, often referred to as the second ranked Chief at  
Nootka, who was shot by the Spaniards in 1789.  
[216] Ingraham also wrote in his letter to Martínez about the chiefs’ custom of  
purchasing wives from distant tribes. He observed Chief Hanappe, one of the chiefs  
at Yuquot, set off to purchase a wife for his seventeen-year old son, Ka-a-shook-o-  
nook. Ingraham wrote, “They fitted out two war canoes with a great quantity of fish,  
copper, iron, etc.” Those products were used by Chief Hanappe to purchase a wife  
for his son, although Ingraham was told that the girl was only six and would remain  
with her own family for some time.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[217] Dr. Lovisek testified that the pre-contact economies of the Nuu-chah-nulth  
were kinship based and that it was necessary to establish kinship relationships  
primarily through marriage and other forms of alliance in order to obtain access to  
marine resources. She stated, at p. 58 of her report:  
Kinship relationships and culturally appropriate transfers of marine resources  
in the form of gifts, dowry, tribute and feasts influenced and/or contributed to  
the exchange between peoples either related or soon to be related.  
Exchanges between kin were not commercial.  
[218] She footnoted this last statement. The footnote reads, “Commercial is  
defined as the exchange of large quantities of a non-mammal marine resource to  
unrelated persons or persons outside a kinship network.” I have already mentioned  
that I was told by counsel that Dr. Lovisek authored this definition. Her definition of  
“commercial trade” exposes a definitional problem that is central to the issues I must  
decide. In my view, because kinship has such a broad meaning in the Nuu-chah-  
nulth culture, it is not necessarily appropriate to exclude trade between neighbouring  
tribes from the definition of trade or commercial trade on the basis that these tribes  
are kin.  
[219] For instance, Espinosa, who visited Nootka Sound in 1791, obtained  
information from Maquinna’s brothers-in-law about their kinship relationship with the  
Nuchimas, with whom they exchanged the copper they had obtained from  
Europeans as a result of the sea otter fur trade. They explained to Espinosa that  
this exchange took place because of high ranking marriage ties between the two  
groups:  
As they sell most pelts to the Europeans in exchange for a great deal of  
copper, we asked them what they do with this metal. They said that they  
have been friends of the Nuchimas people for a long time, which, as we said,  
are quite numerous and are also fisherman. They live on the shores of two  
great lakes to the north, not too far from Tahsis. They border to the east with  
the cut-lip peoples or the islands that border those of Queen Charlotte.  
Having married the daughter of those people’s chief, Natzapi was considered  
by them as chief … That’s why he would regularly supply those peoples with  
useful products from the commerce with the Europeans, trading them for otter  
pelts which the Nuchimas obtain in large numbers from the lakes mentioned.  
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The main objects traded on the part of the Nootkans are copper, and  
“aulunes” or Monterey abalone shells, and sometimes iron and cloth.  
[220] In 1792, Moziño made a similar observation:  
The kinship ties with the Nuchimanes and the princes’ custom of marrying  
women of this tribe have resulted in the longstanding commercial relations  
between these villages.  
[221] There are references in the historical records describing the responsibility of  
chiefs to share provisions with their kinsmen. For example, Jewitt wrote, at p. 171 of  
his narrative account:  
The king is, however, obliged to support his dignity by making frequent  
entertainments, and whenever he receives a large supply of provision, he  
must invite all the men of his tribe to his house, to eat it up, otherwise, as  
Maquina told me, he would not be consider as conducting like a Tyee, and  
would be no more thought of than a common man.  
[222] Dr. McMillan differentiated between trade and tribute. He described tribute as  
a payment in recognition of a chief’s rights over the group territory. Consequently,  
Dr. McMillan opined that some of the instances of goods being brought in by other  
groups, as observed by Jewitt, may have been tribute if they were part of the  
Yuquot-Tahsis Confederacy and thus tributary to Chief Maquinna. The argument of  
Canada is that since tribute did not involve reciprocal exchange, any such  
transactions could not be described as trade. Canada appears to argue that if there  
was any connection between groups, for example, Maquinna’s group and the  
Ehattesaht group, the exchange of goods would be tribute.  
[223] I disagree with this proposition because there is other evidence, as already  
mentioned, that suggests that chiefs arranged marriages with other groups so as to  
facilitate trade with those groups.  
[224] The experts seem to agree that trade occurred within a broadly defined  
meaning of kin. The controversy really concerns Dr. Lovisek’s frame of reference,  
an issue to which I will return below.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
d. Feasting, potlatches and tribute  
Page 86  
[225] Canada argues that feasting and potlatching were the primary means by  
which surplus marine resources were distributed. Potlatching, according to Canada,  
was the means by which a chief would distribute excess fish. A chief who failed to  
feed his tribe or provide feasts would lose influence. Canada says that the plaintiffs’  
argument essentially ignores this integral cultural practice. It submits that given the  
importance of feasts and potlatches, as well as the sharing of food with kin, it is  
reasonable to assume that there was little requirement for pre-contact local groups  
to engage in trade of marine resources.  
[226] The plaintiffs’ position is that the sharing of food through feasts or potlatches  
does not rule out trade as another method of distributing goods. Dr. Lovisek  
admitted that feasting and potlatches did not rule out the possibility of other forms of  
distribution, such as trade, coexisting.  
[227] The experts appear to agree that excess or surplus food was also distributed  
through tribute to chiefs. Drucker described how this process worked, in a passage  
adopted by Mr. Inglis:  
The conditions under which a group member was permitted to exploit a  
Chief’s territory expressed public acknowledgment of the legitimacy of  
ownership. They were as follows: No one might fish on any important fishing  
ground until the owner formally opened the season either by ordering some  
men to go out to procure the first catch or the first two catches for him, or by  
calling on all to accompany him on the first expedition of the season. After  
this, men could go when they pleased. Sometime during the season, or  
afterward when the product had been dried, the chief sent men to collect  
“tribute” (o’umas) for him .... Informants say, “The fishermen gave all they  
could spare. They didn’t mind giving, for they knew the chief would give a  
feast with his tribute.” The foodstuff collected in this fashion was always used  
to give a great feast, at which the giver announced it had been obtained as  
tribute, and explained his hereditary right to demand tribute from that place.  
He invariably concluded by requesting the people to remember that the place  
belonged to him, “to take care of it for him,” though they might use it when  
they wished after the formal seasonal opening. The right to exact this tax  
demonstrates very neatly the relationship between chiefly status and property  
ownership. Each chief collected his tribute from whatever fishing grounds he  
owned, river, inlet, or fishing banks ...  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 87  
[228] The plaintiffs do not dispute the existence of the practice of tribute payments  
but, as with potlatching and feasting, argue that it is a practice that coexisted with  
trade. This evidence confirms the communal nature of Nuu-chah-nulth society. It  
was the chief who owned the territory, although not for himself in a personal way. I  
agree with the plaintiffs that evidence of the existence of tribute, potlatch, and  
feasting does not rule out the co-existence of trade.  
e.  
Warfare and raiding  
[229] Canada argues that the evidence is clear that in the immediate pre- and post-  
contact period, warfare was commonly waged by local groups of the Nuu-chah-nulth  
for the specific purpose of obtaining access to marine resources. It submits that this,  
combined with other cultural practices in place to deal with surplus marine  
resources, makes it unlikely that the Nuu-chah-nulth would have engaged in  
widespread trade on any scale.  
[230] The experts all agree that warfare or raiding was a feature of pre-contact and  
post-contact Nuu-chah-nulth life. The plaintiffs argue that notwithstanding its  
prevalence, warfare did not prevent the Nuu-chah-nulth groups from carrying on  
friendly relations. They say this in their written submissions:  
247. While warfare (or raiding) was a feature of pre-contact Nuu-chah-nulth  
life (as it was for Europeans in the same era), the evidence does not  
establish that this prevented the carrying on of friendly relations amongst the  
Nuu-chah-nulth and between Nuu-chah-nulth and other groups. For  
example:  
a)  
Meares, on whom Canada relies for its warfare proposition, also  
documents Wickaninnish and others visiting Maquinna on  
friendly terms in 1788;  
b)  
Meares also documents friendly relations between  
Wickaninnish and his Ahousaht neighbours, Hanna and  
Detouche. Specifically, Meares describes a treaty between  
those groups that permitted the Ahousaht chiefs to trade with  
Meares while Meares was in Wickaninnish’s territory;  
c)  
Cook and one of his officers described similar relations where  
the group in whose territory Cook’s ship sat facilitated trade  
between Cook’s crew and outside native peoples;  
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Page 88  
d)  
e)  
f)  
Walker describes interactions between the Nootkans and  
“strangers.” Although Walker says that strangers were not  
always warmly received, this does not imply open physical  
hostilities;  
Moziño, again a source relied upon by Canada for its warfare  
proposition, talks about “longstanding commercial relations”  
between the Nootkans and the Nimpkish, demonstrating that  
warfare was not a barrier to trade;  
Jewitt, on whom Canada relies for the existence of one war,  
between Maquinna and a group called the A-y-chart, also  
records over one hundred friendly interactions between  
Maquinna’s people and neighbouring groups who came to visit,  
feast and trade.  
[231] As mentioned above, Sproat observed, in respect to tribal quarrels over whale  
carcasses, that if the quarrel was serious, war was threatened, trade ceased, “by-  
and-by, when the loss of trade is felt, negotiation is tried.”  
[232] The Ahousaht-Otsosaht war, as recounted to Drucker and referred to by  
Dr. Lovisek, is said to have taken place in the early 1800s. Drucker wrote as  
follows:  
In the spring a large party of them proceeded, in small canoes, with their  
womenfolk to ōpnit where they found a large camp of Otsosat. The  
Clayoquot said they were on the way to Hesquiat to purchase dried fish - their  
stores had run short. They spent the night feasting and visiting with the  
Otsosat. Early in the morning, the leader of the Clayoquot party climbed on  
the roof of one of the houses and shouted, “Clayoquot women, get up now to  
cook our breakfast!” This was the signal that had been arranged, and the  
warriors fell on their unsuspecting hosts.  
[Emphasis added]  
[233] This account would seem to indicate that trade in fish was a commonplace  
activity insofar as the cover story for the Clayoquot was that they were on a trading  
mission.  
[234] Below I recount specific evidence of warfare in my discussion of the  
connections between the modern-day plaintiffs and the contact era groups from  
whom they say they derive their aboriginal rights. Some of the forced acquisitions of  
territory were for the purpose of acquiring fishing territories. The existence of  
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Page 89  
warfare underscores the fact that not all Nuu-chah-nulth groups were equally  
endowed with marine resources. This, in turn, points to an important feature of trade  
motivation. There is evidence of scarcity of resources among some groups from  
time to time which would necessitate trade. The plaintiffs say warfare and trade co-  
exist. I conclude that there is evidence of trade and warfare co-existing.  
f.  
Trade routes  
[235] In addition to the various observations in the Explorer Records that the  
plaintiffs say support their contention of indigenous trade in fish, the plaintiffs rely as  
well on the existence of trade routes from the west coast to the east coast of  
Vancouver Island. They say that the existence of these trade routes supports the  
notion of the Nuu-chah-nulth as trading people. Dr. McMillan described two major  
trading trails leading eastward across the Island; one beginning at Tahsis in Kyquot  
Sound and the other beginning at Tahsis in Nootka Sound. The explanation for the  
similar names, given by Dr. McMillan, is that the term “tahsis” in Nuu-chah-nulth  
means “doorway”.  
[236] Dr. Lovisek, Mr. Inglis, Dr. Lane and Dr. McMillan all testified about the trade  
trails across Vancouver Island, based largely on the anthropological study by  
Dr. Yvonne Marshall, The Mowachaht/Muchalaht Archaeology Final Report, Culture  
Department Library, Ministry of Small Business, Tourism and Culture, Victoria, 1992.  
The experts agree that the trade trails were already established at the time of  
contact with Europeans. Many of these trade trails continued into the colonial and  
post-confederation periods.  
[237] These trade trails are important evidence of trade between distant groups.  
While the existence of the trails does not prove that it was fish that was being traded,  
they are, nevertheless, evidence that trade was a well entrenched custom of the  
Nuu-chah-nulth. A conclusion that trade in fish occurred requires additional  
evidence over and above the existence of the trade trails themselves.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
g. Gifts as a form of trade  
Page 90  
[238] Dr. Lovisek testified that gift giving could not be characterized as trade.  
Mr. Inglis testified that “although the trade was often represented as gifts, it is clear  
that these were viewed by the chiefs as commercial transactions with return of  
equivalent value in goods expected.” Dr. McMillan testified to the same effect.  
[239] Mr. Inglis’ report refers to an 1860 account by Barrett-Lennard that gift giving  
was another form of trade:  
We went through the ceremony of receiving presents from our various Indian  
acquaintance; a fine black bear skin being sent us from Macoola ... we  
studiously kept aloof from him [a sub-chief of the Mowichats], hoping he  
would abstain from making us any presents, as we should not then be called  
upon to make any return; for receiving presents from Indians is merely  
another name for barter, an equivalent in return being in every case  
expected. There was no help for it, however, as he, in turn, came off in his  
canoe, and deposited his gift, a land otter, on our decks. Some few hours  
afterwards we sent him what we deemed a suitable recompense; being,  
however, it would appear, of a different opinion himself, he again came  
alongside, and, after bitterly reproaching us with our niggardly spirit to our  
great amusement walked off with the present he had lately made us, and  
which was still lying on the deck, keeping at the same time, what we had  
given him in return.  
[240] Meares, in 1788, described Nuu-chah-nulth trading protocol as including  
reciprocal gifts.  
[241] I conclude that gift giving was a polite form of trade and is not distinguishable  
from trade.  
C.  
Findings of Fact Concerning Fishing and Indigenous Trade at Contact  
[242] The plaintiffs contend that the evidence demonstrates that their ancestors  
traded in fish and that that trade in fish was integral to their culture. Canada  
contends that, at most, the evidence supports a finding of occasional, opportunistic  
trade in fish. It argues that any exchange of fish or marine products was largely  
within a context of kinship, gifts, or tribute to a chief, and therefore cannot be  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 91  
construed as trade. It further argues that any trade was the product of European  
influence.  
[243] I have not defined trade. Instead, I have outlined the features that I consider  
necessary to prove the existence of an indigenous pre-contact trade in fish. To  
repeat, those features are: exchanges of fish or shellfish for an economic purpose;  
exchanges of a significant quantity of such goods; exchanges as a regular feature of  
Nuu-chah-nulth society; and, exchanges outside the local group or tribe.  
[244] I have also concluded that the terminology used by the explorers and traders  
to describe exchanges of goods, tribute, trade, and reciprocal gifts is inconsistent.  
These concepts overlap; they are not mutually exclusive. For instance, Dr. Lovisek  
was asked about maritime fur trader Alexander Walker’s 1785 observation that  
strange groups of Nuu-chah-nulth people that came from the south to trade, paid  
tribute to either Maquinna or Callicum. She defined tribute as follows:  
What is interesting about this observation which, in conjunction with other  
historical observations, is that one of the features of exchanging marine  
resources amongst the Nuu-chah-nulth is the concept of tribute. And tribute  
means that one gives resources or gives something and receives resources  
in return as an acknowledgment to the person giving them marine resources  
that they have – they are the title holder. They are the authority, and it is a  
respect situation.  
[245] The plaintiffs say that although Dr. Lovisek agreed that gift-exchange  
transactions netted the same result as trade, she did not accept that these  
transactions could be characterized as trade. The plaintiffs submit that this stems  
from Dr. Lovisek’s failure to examine the pre-contact Nuu-chah-nulth practices from  
an aboriginal perspective, which is critical to the aboriginal rights analysis.  
[246] Mr. Inglis said that “although the trade was often represented as gifts, it is  
clear that these were viewed by the Chiefs as commercial transactions with return of  
equivalent value in goods expected. If the return was not of expected value, the  
trade ceased” (p. 42). Dr. McMillan also commented on the overlapping nature of  
gifting and barter or trade. He said, at p. 4:  
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Categories of exchange are not necessarily mutually exclusive. Gifts with  
expectation of reciprocity were functionally and conceptually little different  
than barter. Nuu-chah-nulth chiefs used such gifts as a trade tactic during  
the late 18th century traffic in furs. Howay, for example, describes the  
aboriginal practice of “trading under the guise of reciprocal gifts”. This led the  
European fur traders to attempt to evade such gifts.  
[247] The point is that the Nuu-chah-nulth culture of gift giving was essentially a  
polite form of trading. Dr. Lovisek did acknowledge that mercantile dealings would  
shift from trade to reciprocal presents. She also acknowledged that common barter  
or reciprocal presents netted essentially the same result – each side received  
something from the other.  
[248] Jewitt chronicled trade with various tribes to the north and south of Nootka  
Sound, including each of the four other plaintiffs: the Ehattesaht; the Hesquiaht; the  
Ahousaht; and the Tla-o-qui-aht. Canada contends that this was mostly tribute or  
kinship trading and that any trading observed by Jewitt was a result of European  
influence and the availability of European goods. I conclude that the four other  
plaintiffs were independent from Maquinna at the time of contact, although the  
Ehattesaht may have been loosely connected to Maquinna. (See the discussion  
below of the history of each plaintiff.)  
[249] On several of the 92 occasions of goods being brought in that he recorded,  
Jewitt identified products given in return, being goods pillaged from The Boston. On  
many occasions, however, he did not identify items given in return. Dr. Lane,  
Dr. McMillan and Mr. Inglis were of the opinion that even in cases where Jewitt did  
not note any return items, it is likely that these interactions were trade transactions.  
In my view, this is a reasonable inference and is supported by Jewitt’s narrative in  
which he stated, at p. 95:  
The trade of most of the other tribes with Nootka, was principally train oil, seal  
or whales’ blubber, fish fresh or dried, herring or salmon spawn, clams, and  
mussels and the yama a species of fruit which is pressed and dried, cloth,  
sea otter skins and slaves. From the Aitizzarts, and the Cayuquets,  
particularly the former, the best I-whaw [dentalia] and in the greatest  
quantities was obtained.  
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[250] Although Jewitt’s list of items brought to trade includes many identified in the  
journal as being brought to Maquinna without mention of items given in return, Jewitt  
called these transactions “trade” in both his narrative and his journal. It is  
reasonable to infer that the goods identified in the journal were brought as trade  
items.  
[251] Dr. Lovisek did not accept that what Jewitt documented were trade  
transactions but she agreed that the transactions were balanced reciprocal  
exchanges. She also agreed with the following passage from a thesis by Robert  
Morgan: The Economic Basis and the Institutional Framework of Traditional Nootka  
Polities:  
Further evidence for balanced reciprocal exchange between independent  
groups comes from Jewitt’s observations regarding Moachat [Mowachaht]  
Chief Moqwina’s [Maquinna’s] intercourse with visiting parties from different  
political groups. Moqwina [Maquinna] regularly received resources and  
reciprocated with other goods: ... The relative value of the goods exchanged  
cannot be assessed from Jewitt’s account, but immediacy of return and value  
equivalence are generally associated. Jewitt’s journal includes a number of  
incidents of interpolity exchange where returns are not mentioned, however it  
is reasonable to interpret that these transfers were reciprocated in other  
interactions.  
[252] Dr. McMillan stated in his reply report, at p. 4:  
Categories of exchange are not necessarily mutually exclusive. Gifts with  
expectation of reciprocity were functionally and conceptually little different  
than barter ... Marriage ties also should not eliminate transactions from being  
considered as trade. In fact, marriages were often arranged to facilitate trade  
relations. Dr. Lovisek (p. 58) discounts any transactions “between peoples  
either related or soon to be related” claiming that these should not be  
considered as commercial exchange. That opinion places an unreasonable  
restriction on the concept of “trade”. Moziño, for example, in 1792  
commented on the importance of marriage in maintaining trade relations with  
the Kwakwaka’wakw across the island stating:  
The kinship ties with the Nuchimanes and the prince’s custom of  
marrying woman of this tribe have resulted in the long standing  
commercial relations between these villages. (Moziño 1970:63)  
[253] In his narrative at p. 96, Jewitt used the terms “trade” and “tribute” somewhat  
interchangeably in discussing exchanges with Maquinna. For instance, he wrote:  
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Many of the articles thus brought, particularly the provisions, were considered  
as presents, or tributary offerings, but this must be viewed as little more than  
a nominal acknowledgement of superiority, as they rarely failed to get the full  
amount of the value of their presents. I have known eighteen of the great  
tubs, in which they keep their provisions, filled with spawn brought in this  
way.  
[254] Following this passage, Jewitt returned to the language of trade in which he  
stated, in the same document at p. 97, “whenever they came to visit or trade, it was  
the general custom, to stop a few miles distant under the lee of some bluff or rock,  
and rig themselves out in their best manner by painting and dressing their heads ...  
this was their usual mode of traffick ...”  
[255] In my view, where the essence of a transaction is an exchange of goods for  
something of economic value, the transaction has the characteristics of trade. I  
would not disregard as evidence of trade Jewitt’s observations or those of the other  
explorers and traders where reference is made to tribute or gifts. Rather, I conclude  
that the terms are used loosely by different observers. Moreover, I conclude that  
there was considerable overlap in the Nuu-chah-nulth culture of exchange between  
gifts, tribute, and trade. Considering the evidence through an aboriginal perspective,  
I would not categorize these transactions in such neatly defined terms.  
[256] Another important feature of trade is the question of with whom the trade  
occurred. Here, I refer again to Dr. Lovisek’s exclusion of kin from her definition of  
trade.  
[257] As discussed, kinship was an essential component of Nuu-chah-nulth trade  
but the concept of kin, as described by all the experts and perhaps best described  
by Drucker, includes remote relationships. There are evidentiary references,  
summarized by Mr. Inglis, to marriages arranged by chiefs with distant tribes so as  
to enhance trading relationships. The existence of trade routes pre-dating contact,  
such as the Tahsis Trails across Vancouver Island, is compelling evidence of the  
existence of trade with remotely connected groups.  
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[258] In Van der Peet, at p. 568, Lamer C.J., after noting the trial judge’s findings  
that any trade in fish by the Sto:lo was minimal and opportunistic, indicated that he  
would add to those findings a reference to the expert testimony that trade occurred  
through the “idiom of maintaining family relationships.” He quoted from the  
testimony of one of the experts:  
The medium or the idiom of much trade was the idiom of kinship, of providing  
hospitality, giving gifts, reciprocating in gifts ...  
[259] Lamer C.J. also noted that another witness had testified that the exchange of  
goods was related to the maintenance of family and kinship relations.  
[260] It will be apparent from my review of the evidence that I have not reached the  
same conclusion as did the trial judge in Van der Peet. Although in Van der Peet  
kinship trade was not found to be commercial trade, I consider this a finding of fact,  
not law, and distinguishable from the factual findings I make on the evidence in this  
case.  
[261] In summary on the kinship question, I conclude that the Nuu-chah-nulth  
traded with kin but that the definition of kin is so loose that it cannot be employed in  
a manner that excludes all trade occurring within “an idiom of kinship”.  
[262] Another factor that may be important to the question of the existence of trade  
is whether there was any motivation for trade. All the expert witnesses agreed that  
there was considerable variation in the quantity and type of marine resources  
available in the various Nuu-chah-nulth territories. This variation in resources made  
some kinds of exchange a necessity.  
[263] Another important issue with respect to proof of trade is consideration of  
whether the observations made by the explorers and traders were of a society  
influenced and rapidly changed by contact with Europeans.  
[264] Canada and Dr. Lovisek discount the importance of Jewitt’s evidence on the  
basis that any observations he made were of a society already influenced, and  
impliedly changed, by European culture; that is, that what the European explorers  
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and traders were observing was essentially a trade of their own making which grew  
out of a desire of the Nuu-chah-nulth to acquire European goods, particularly metals.  
[265] Jewitt’s observations were written 29 years following contact.  
[266] What is remarkably consistent about the Explorer Records is the evidence of  
immediate and persistent efforts by all the Nuu-chah-nulth people, the Europeans  
encountered, to begin trading. Even when Pérez, the first European to contact the  
Nuu-chah-nulth, arrived several miles offshore, the very first act of the Nuu-chah-  
nulth people was to offer to trade fish with him.  
[267] The older maritime explorers made similar observations that almost all their  
encounters with the Nuu-chah-nulth were marked by requests to trade fish and other  
indigenous items for metal, fabric, guns or other European goods. I do not detect in  
the records any note of hesitancy on the part of the Nuu-chah-nulth to trade with the  
Europeans. Mr. Inglis commented that “this trade was obviously not a new thing to  
the [Nuu-chah-nulth].” He opined that “they aren’t learning trading from the  
Europeans in fact Europeans are fitting into their trading system.”  
[268] Canada points to an article co-authored by Mr. Inglis in 1985 in which he  
described marked changes in Nuu-chah-nulth culture in the decades between Cook  
and Jewitt: “Cook to Jewitt: Three Decades of Change in Nootka Sound”. Paper  
presented at the Fifth North America Fur Trade Conference, Montreal, 1985. Re-  
published in Huupukwanum Tupaat: Nuu-chah-nulth Voices, Histories, Objects and  
Journeys, edited by Alan L. Hoover. Victoria, B.C.: Royal B.C. Museum, 2000  
(reprint of 1987 article). There he expressed the view that significant change to the  
Nuu-chah-nulth culture took place as a result of contact; that is, after Cook and  
before Jewitt. In the article, he posited that the seasonal round (i.e. the Nuu-chah-  
nulth move from villages on the outside coast to their inland villages on rivers) was  
an historic post-contact period adaptation to population decline. He expressed the  
view that the people of Nootka Sound:  
... in choosing to abandon their traditional economic activities in favour of  
becoming port managers, had to find alternate means of acquiring sufficient  
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foodstuffs to sustain them over the winter months. The solution appears to  
have involved two separate strategies: one, an exchange system of  
foodstuffs for trade items with neighbouring groups and two, the development  
of a food procurement schedule that did not conflict with managing the trade.  
Both strategies were developed early. Food was one of the major items  
noted by Europeans as being brought into Yuquot for exchange by  
neighbouring groups. The second strategy involved the development of a  
limited seasonal round in which Yoquot people moved in September from  
their “outside” village to the head of Tahsis Inlet to trap salmon.  
[269] Canada says that the opinions expressed in the Cook to Jewitt article conflict  
with the opinion Mr. Inglis gave at trial.  
[270] Mr. Inglis testified that since writing the article 26 years ago, he has modified  
his views, based largely on the widely respected archaeological research of  
Dr. Marshall. Dr. Marshall dates the Yuquot-Tahsis amalgamation, that is, the  
change in settlement pattern from small local groups to large confederacy, to 300 to  
400 years before her work (thus, 1600 to 1700). Dr. Lovisek agreed with  
Dr. Marshall’s conclusion that the seasonal round predated European contact and  
therefore agreed that the profound changes suggested in the Cook to Jewitt article  
did not happen as a result of contact. In particular, she agreed that the excerpt from  
the Cook to Jewitt article just mentioned was not accurate.  
[271] Mr. Inglis accepts Dr. Marshall’s conclusions and thus no longer holds the  
views he earlier expressed in the Cook to Jewitt article that the seasonal round  
developed in response to European contact. The significance of this is that the  
development of the seasonal round went hand in hand with the development of  
larger confederacies which, in turn, was accompanied by economic relations,  
including trade, between the various larger groups. Dr. Marshall stated at p. 154 of  
her thesis, in part based on the archaeological evidence of the trade trails, that  
“Long distance trading was a well-established practice in pre-European Nuu-chah-  
nulth society.” Dr. Lovisek agreed with much of the work of Dr. Marshall, specifically  
the dating of the development of the seasonal round. Her disagreement with  
Dr. Marshall’s conclusion about long distance trading (which is accepted by  
Mr. Inglis) is based on her contention that archaeologists wrongly conclude that  
archaeological evidence of exotic materials in a foreign locale is necessarily  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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evidence of trade. Rather, she said, it could be evidence of gifting, potlatching, or  
some other form of exchange. I disagree with Dr. Lovisek’s conclusion in this regard  
because Dr. Marshall’s opinion is based on her study of the historical and  
ethnographic literature, as well as her own archaeological research. Thus,  
Dr. Marshall’s conclusions drawn from analysis of archaeological artefacts are  
informed by their historical context.  
[272] Canada also takes issue with Mr. Inglis’ qualifications, not as to the  
admissibility of his opinion, but with respect to its weight. Canada cites his lack of  
formal academic qualifications and his limited published work. Canada also says he  
was an evasive witness.  
[273] Mr. Inglis has a master’s degree in anthropology. He worked as a curator at  
the Royal British Columbia Museum, and subsequently held the position of head of  
anthropology. He has a particular interest and experience in researching the Nuu-  
chah-nulth peoples and their history. I found Mr. Inglis to be a knowledgeable expert  
witness. Contrary to Canada’s assertions that he was not well-qualified to give the  
opinions he gave, I conclude that he has spent much of his career researching  
historical and anthropological sources relating to the Nuu-chah-nulth. He  
demonstrated a remarkable familiarity with the historical material and was able to  
explain the context in which the European explorers’ observations were made. I  
agree with Canada that at times his selection of material was not even-handed but  
unfortunately I drew the same conclusion with respect to Dr. Lovisek, Dr. McMillan,  
and Dr. Lane. At times, all of them selected secondary references that supported  
their opinions while ignoring others that did not. Mr. Inglis was a nervous witness,  
but I do not conclude, as Canada asserts, that he was deliberately evasive.  
[274] All of the expert witnesses were impressive. All researched an astonishing  
volume of material to reach their conclusions. I have accepted parts of all their  
opinions, and found other parts less persuasive. In rejecting Dr. Lovisek’s definition  
of commercial trade, I have certainly not rejected all her conclusions. I do note,  
however, that she has relatively little previous research experience directly related to  
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the Nuu-chah-nulth, whereas Mr. Inglis, and Dr. McMillan, in particular, have spent  
much of their professional careers researching Nuu-chah-nulth history and culture.  
Thus, they have acquired an intimate and nuanced understanding of the Nuu-chah-  
nulth culture and history.  
[275] As noted already, Mr. Inglis testified that the Nuu-chah-nulth did not need  
European influence to learn to trade. He also opined that the Nuu-chah-nulth were  
not evenly supplied with the same products and that geographical differences  
resulted in different access to resources. Trade was therefore a necessity. Even  
with the seasonal round to summer villages on the coast and to winter inland  
villages, he said that the various Nuu-chah-nulth groups did not have even access to  
a full range of resources. In support of his opinion he referred to, in part: Haswell’s  
lists of communities, both to the south and north, that traded with Maquinna; Meares’  
observations that different groups traded with Wikaninnish; and, the work of  
Dr. Marshall. Haswell’s lists identify 18 trading groups. They were not all related by  
kin.  
[276] Mr. Inglis relied on Cook’s and Meares’ observations that the Nootkans  
seemed to be leaving Nootka Sound and returning with new products as evidence of  
trade. He also relied upon the network of trails to the Nimkish tribes on the east side  
of Vancouver Island which, he said, were a pre-contact trade network. He does not  
hold the view that Jewitt’s observations were of a newly acquired culture and trading  
pattern brought about by European influence.  
[277] Cook observed that Maquinna appeared to act as a gatekeeper between the  
other tribes and the Cook expedition. It does not seem probable to me that this was  
a new cultural practice; rather, it appears that all the different tribes accepted  
Maquinna’s “ownership” of the Europeans in his territory and sought Maquinna’s  
permission to partake in the trade.  
[278] Cook and others, as well as Dr. Marshall, noted that metal, particularly iron,  
appeared to have travelled from tribe to tribe with considerable speed.  
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[279] Sproat’s evidence is further corroboration of the existence of an ancestral  
practice of trading in fish. I am of the view that it is appropriate to infer from Sproat’s  
evidence that many of the practices he observed were of long-standing significance,  
probably as far back as first contact with Europeans.  
[280] I have not distinguished between the individual plaintiffs in this section  
because the evidence of trade inherently links them in the same activity: trade. It is  
also noteworthy that the vast majority of European contact with the Nuu-chah-nulth  
took place at Nootka Sound and, to a lesser extent, Clayoquot Sound. The other  
Nuu-chah-nulth tribes would have had indirect exposure to Europeans (or proto-  
contact as Dr. Lovisek described it), thus their culture would have been somewhat  
less influenced by contact with Europeans. I have inferred that all the Nuu-chah-  
nulth engaged in the same or similar trading activity.  
[281] In summary, I have concluded from the evidence the following:  
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.  
3.  
4.  
5.  
6.  
trade relations existed with “strangers” who came to pay tribute to  
powerful chiefs but in doing so received reciprocal gifts in return;  
marriages were arranged to facilitate trade with extended kin, kin  
having a broad definition;  
dentalia [shells] were found in exotic places (that is, far from the place  
of origin) by archaeologists, indicating their use as a trade item;  
iron was noted by the earliest of the explorers to be traded up and  
down the coast, indicating a strong pre-contact trade network;  
the Nuu-chah-nulth were not equally endowed with the same  
resources and thus the exchange of foodstuffs was necessary;  
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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.  
9.  
the Nuu-chah-nulth did not trade for the purposes of accumulating  
wealth (I heard no such evidence);  
the Nuu-chah-nulth had the ability to dry, preserve, and trade vast  
quantities of fish and marine products. (For a more detailed  
discussion, see the section above titled “Dependence on Fish”); 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.  
[282] I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries  
resources. I conclude that that trade included the regular exchange of fisheries  
resources in significant quantities to other tribes or groups, including groups with  
kinship connections. I do not exclude from this definition reciprocal gift giving or  
barter.  
[283] Having concluded that at contact there did exist an aboriginal practice of  
fishing and trading in fish, I return to the Van der Peet analysis to consider the  
existence of an aboriginal right.  
D.  
Integrality of the Ancestral Practices to the Distinctive Cultures of the  
Claimants’ Pre-contact Societies  
[284] The next question prescribed by Van der Peet concerns the integrality of  
trade to the plaintiffs’ culture. To be integral, a practice must be a central and  
significant aspect of the aboriginal society’s distinctive culture, and cannot be merely  
incidental to an integral practice: Van der Peet, at para. 56. “Culture” in this context  
entails an inquiry into the pre-contact way of life of a particular aboriginal community,  
while “distinctive” incorporates an element of aboriginal specificity: Sappier, at  
para. 45.  
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[285] Much of the earlier discussion incorporated evidence relevant to the question  
of whether fishing and trade in fish were integral to Nuu-chah-nulth culture. I am  
satisfied that the evidence just reviewed demonstrates that fishing and trade in fish  
were integral to the Nuu-chah-nulth culture.  
[286] I turn now to review the evidence as to whether the plaintiffs are the proper  
claimant groups and whether they have proven that specific territories are  
associated with their fishing claims. I will also consider whether their claims must be  
specific to particular species.  
1.  
Proper claimant group  
[287] Aboriginal rights and title are collective rights: Sparrow, at para. 68;  
Delgamuukw, at para. 115. Such rights must be grounded in the existence of a  
historic and present community, and they may only be exercised by virtue of an  
individual’s ancestrally based membership in the present community: R. v. Powley,  
2003 SCC 43, [2003] 2 S.C.R. 207, at para. 24. Consequently, the plaintiffs must, to  
succeed in this claim, establish that they are the successor collectives to the  
aboriginal groups that possessed aboriginal rights at the date of contact. I am not in  
this section considering the plaintiffs’ title claim. The question to be resolved is  
whether these modern plaintiffs can prove that they are rights holders; that is, are  
they connected to the groups from whom they say they derive their aboriginal rights  
to fish and to trade in fish. Earlier in these Reasons, I noted the requirement for  
claimants to establish that they are the rights holders as part of the continuity  
analysis: Marshall and Bernard, at para. 67. On the facts of this case, however, I  
find it more convenient to consider this issue as part of the “integral to the distinctive  
culture” analysis instead.  
[288] As has been noted elsewhere, most of the authorities that address aboriginal  
rights do so in the context of regulatory prosecutions. Another challenge in applying  
such cases to a civil proceeding is that they provide little guidance with respect to  
how to trace or identify the modern collective that is the appropriate rights or title  
holder. In prosecutions, an accused person claims an aboriginal right belonging to  
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his or her aboriginal community as a defence, and it is generally not necessary for  
the Court to identify the whole of the appropriate collective with any precision.  
[289] The Supreme Court discussed identification of the proper rights holder in  
Powley, a decision that concerned a claim to Métis rights under s. 35(1). The Court  
approached the issue by first identifying the historic rights-bearing community and  
then identifying the contemporary rights-bearing community. The headnote provides  
a convenient synopsis of the Court’s approach:  
The aboriginal right claimed in this case is the right to hunt for food in the  
environs of Sault Ste. Marie. To support a site-specific aboriginal rights  
claim, an identifiable Métis community with some degree of continuity and  
stability must be established through evidence of shared customs, traditions,  
and collective identity, as well as demographic evidence. The trial judge’s  
findings of a historic Métis community and of a contemporary Métis  
community in and around Sault Ste. Marie are supported by the record and  
must be upheld.  
[290] While Powley concerned a claim to Métis rights, the decision does, in my  
view, provide some helpful guidance in terms of the factors to consider in  
approaching the issue.  
[291] In Marshall and Bernard, McLachlin C.J. addressed successorship, relating  
the identification of the proper group to the requirement for continuity. At para. 67  
she wrote:  
The requirement of continuity in its most basic sense simply means that  
claimants must establish they are right holders. Modern-day claimants must  
establish a connection with the pre-sovereignty group upon whose practices  
they rely to assert title or claim to a more restricted aboriginal right.  
[292] That proof of connection will be primarily based on a geographical  
identification but it is not necessary to prove the geographic connection in the same  
way that proof of aboriginal title would require.  
[293] I will apply the Marshall and Bernard test to the facts of this case.  
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[294] At a time prior to contact, the WCVI was densely occupied by a large number  
of local groups, each of which occupied a territory that was owned by the chief of  
that local group.  
[295] Dr. Lovisek wrote, at p. 106:  
… The archaeological record supports a large population which is reflected  
by numerous sites in which almost every inhabited location in Nootka Sound  
was occupied. This, according to archaeologist Yvonne Marshall gives “the  
overwhelming impression of a full, densely occupied landscape.”  
[296] Dr. Lane wrote at p. 18:  
The Nuu-chah-nulth local group is viewed as an extended group of kin,  
centred on a family of chiefs who own a variety of economic and ceremonial  
privileges. Each of the Nuu-chah-nulth local groups bore a distinctive name  
and had a tradition that explained their descent from a common First  
Ancestor. The name of each group reflects its history, through the group’s  
ties to a particular location, often a fishing river or stream; to a First Ancestor  
or other family hero; or to a momentous event in the group’s history.  
[297] Starting at a time prior to contact, the local groups began to amalgamate into  
larger political entities for a variety of reasons. One was de-population brought  
about by warfare and later European-introduced disease. Another was access to  
pre-contact trade routes. Some amalgamations were voluntary, while others were  
forced by military conquest. The original polities did not disappear, according to  
Dr. McMillan; rather, the chiefs of the formerly independent local groups continued to  
hold ranked titles within the larger grouping governed by a head chief. The  
amalgamated tribe was associated with specific territories. According to Drucker, a  
family of chiefs bore a name denoting their common ancestor and place of origin.  
[298] There was no evidence that any non-Nuu-chah-nulth aboriginal group with a  
different language or culture occupied any part of the WCVI during the time frame at  
issue here, that is, the period just before and following contact to the present.  
Indeed, Canada admits that there is little doubt that members of the plaintiff First  
Nations are descendants of individual aboriginal peoples who inhabited the WCVI at  
contact and at sovereignty. Canada does contend, however, that the plaintiffs must  
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Page 105  
show that they are the successors to the aboriginal collectivities extant at contact  
and the assertion of sovereignty.  
[299] The evidence is clear that the plaintiffs share a common Nuu-chah-nulth  
language, culture and history. They do not now have, nor have they ever had, a  
single overarching governing Nuu-chah-nulth authority. Each plaintiff self-identifies  
as an autonomous nation and each claims it is the proper aboriginal group for the  
purpose of holding aboriginal rights and title.  
[300] Canada contends that continuity between the pre-contact and pre-sovereignty  
groups and the plaintiffs in this case has not been established. It says that the  
plaintiffs cannot obtain constitutional protection of their modern activities if those  
activities were integral to the distinctive culture of some other groups to which they  
are not related or which no longer exist. Canada submits that the plaintiffs have not  
demonstrated how the 18th and 19th century aboriginal groups of the WCVI were  
connected to the modern plaintiffs. Canada describes the plaintiffs’ argument in this  
way:  
In other words, ‘if not the plaintiffs, then whom?’. While this argument has a  
degree of attraction, it does not meet the standard of proof required to  
establish successorship.  
[301] Canada points out that the experts agree there was considerable turmoil and  
instability in the historical groups which ultimately resulted in significant population  
decline amongst the aboriginal peoples of the WCVI, and that the local groups  
extant in the late 19th century were considered to be a fraction of those which  
existed at the time of contact.  
[302] In Canada’s submission:  
Simply stated, any rights or title in existence at the time of contact or the  
assertion of sovereignty would have attached to more than one hundred  
autonomous socio-political groupings. However, subsequent epidemics,  
migrations and conquests have made it extremely difficult to establish the  
legitimate transmission of the rights of those contact-era or sovereignty-era  
groupings to the much smaller number of modern Plaintiff First Nations in this  
case. Accordingly, it is not possible to determine whether most of these  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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Plaintiffs are the appropriate Aboriginal collectivities entitled to a declaration  
of Aboriginal rights and title in the present case. To the extent that  
genealogical and oral history evidence might have addressed the issue of  
successorship, the Plaintiffs declined to tender this evidence.  
[303] In order to address the issue of whether the plaintiffs are the proper claimant  
groups, I will examine the history of each plaintiff. To place that history in some  
context it may be helpful to first note the evidence of population decline. It is this  
significant population decline that seems to be at least part of the cause of the shift  
from local groups to amalgamated entities.  
a.  
Population decline  
[304] Based on Spanish naval surveys conducted in 1791, Dr. Lane and Mr. Inglis  
concluded that a minimum of 21,000 Nuu-chah-nulth people occupied Nootka  
Sound, Clayoquot Sound and Lower Barkley Sound at the time of contact, as  
follows:  
4,000  
Nootka Sound (Mowachaht/Muchalaht, Ehattesaht,  
Nuchatlaht)  
8,500  
8,500  
Clayoquot Sound (Ahousaht and Tla-o-qui-aht)  
Lower Barkley Sound (Huu-ay-aht, Tseshaht, Toquaht,  
and Uchecklesaht)  
[305] These population estimates exclude the Che:k’tles7et’h’, Ka:’yu:k’t’h,  
Hesquiaht, Hupacasath, Ucluelet, Ditidaht and Pacheedaht.  
[306] In his authoritative work, The Coming of the Spirit of Pestilence: Introduced  
Infectious Diseases and Population Decline among Northwest Coast Indians, 1774-  
1874, (Vancouver: UBC Press, 1999), Robert Boyd estimated the Nuu-chah-nulth  
population in 1774 at 12,375. Mr. Inglis testified that Mr. Boyd’s work was  
authoritative but he nevertheless questioned the sources for Mr. Boyd’s estimate. It  
is unnecessary in this action to resolve the question of these different population  
estimates other than to note that the area that is the subject of these claims was  
observed by the explorers to be fully populated at or around the date of contact, and  
that there was a dramatic population decline in the following 100 years.  
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[307] Dr. Lovisek noted in her July 20 report (at p. 11) that the conditions and  
identities of the Nuu-chah-nulth differed substantially from contact to 1846 because  
of raiding, amalgamation, and massive de-population. Many of the local groups  
identified at contact no longer existed as discreet independent social or political  
entities by the mid-19th century. The groups which survived were amalgamated into  
their present modern named groups.  
[308] The plaintiff band populations based on 2006 data are as follows:  
Bands  
Total “Registered  
Aboriginals”  
On-Reserve  
Off-Reserve  
Ahousaht  
Ehattesaht  
1869  
331  
603  
87  
1266  
244  
Hesquiaht  
660  
543  
944  
4341  
153  
201  
309  
1353  
507  
342  
635  
2994  
Mowachaht/Muchalaht  
Tla-o-qui-aht  
TOTAL  
[309] I now turn to chronicle the history of each plaintiff in order to make the  
necessary findings of fact to underpin my later determinations as to whether the  
plaintiffs are the proper rights holders.  
b.  
History of each plaintiff  
i. Ehattesaht  
[310] The Ehattesaht claim fishing rights in the territories and title to the lands and  
waters in the regions surrounding the north shore of Esperanza Inlet, including part  
of Hecate Channel, Zeballos Inlet, Espinosa Inlet, Queen’s Cove and the outside  
coast east and north to Mushroom Point, as depicted in Appendix A to these  
Reasons. The Ehattesaht claim also the foreshore and submerged waters to the  
Park River.  
[311] With respect to the Ehattesaht, Canada takes the position that the plaintiffs  
have failed to prove that the local groups who occupied what is now the Ehattesaht  
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claim area are the ancestors of the modern-day Ehattesaht. It submits that there is  
insufficient evidence for the Court to infer that the modern-day Ehattesaht  
descended from the groups occupying the area at the time of contact, and says that  
the plaintiffs’ submissions do not properly analyze this issue. Canada does  
acknowledge that some Ehattesaht ancestors inhabited the claim area at contact.  
[312] Dr. Lovisek traced the known history of the Ehattesaht. She said that pre-  
contact, the Ehattesaht consisted of six local groups which shared a winter village at  
Hohk. At some time this group was joined by a coastal group called the  
Ha’wehtakamlath. After the inclusion of the Ha’wehtakamlath, the Ehattesaht then  
had rights to coastal fishing grounds. Dr. Lovisek said that Drucker identified a  
Queen’s Cove group which remained apart but friendly with the Ehattesaht for a long  
time. This last group joined the Ehattesaht at a time estimated to be between 1865  
and 1885.  
[313] Interestingly, Dr. Lovisek explained that between 1803 and 1805, Jewitt  
described the Ehattesaht as having 300 warriors and that they were tributary to  
Maquinna at Yuquot in Nootka Sound. She also described some inter-marriage  
between the Ehattesaht and the Mowachaht in the 1840s.  
[314] Mr. Inglis said that the Ehattesaht take their name from Ehatis, a local group  
village located on the west side of the head of Zeballos Inlet. Mr. Inglis relied on a  
map prepared by Drucker setting out the boundaries of the Ehattesaht territory and  
locating the village sites. Drucker’s boundaries include the territories claimed by the  
Ehattesaht in this lawsuit. Mr. Inglis noted that Haswell’s list of tribes the Nootka  
visited and traded with in 1789 included the Ahatesut, a different rendition of the  
Ehattesaht name. Haswell also listed the village of Che neckenet as a village the  
Nootka visited and traded with to the north of Nootka Sound. The Che neckenet  
people, according to Mr. Inglis, are likely from the area of Chenerkintau, which is the  
property of an Ehattesaht chief.  
[315] Kendrick, of The Columbia expedition, negotiated the purchase of land from  
the Ehattesaht chief in the area of Chenerkintau on the north side of Esperanza Inlet  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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within the boundaries of the present day Ehattesaht territorial claim. The Ehattesaht  
appear in the 1791 Espinoza and Cevalos charts as part of the Malaspina expedition  
of Nootka Sound in 1791. Four settlements are noted by Espinoza and Cevalos  
within the present Ehattesaht claimed areas.  
[316] As already noted, Jewitt recorded visits with the Ehattesaht on 35 occasions.  
Mr. Inglis said that they were the most frequent visitors to Maquinna, according to  
Jewitt.  
[317] Mr. Inglis noted that in 1855 during the colonial period, Francis and Banfield  
estimated the population of the Ehattesaht at 320. In 1860, Sproat documented 36  
males in the Ehattesaht tribe. In 1862, a British hydrographic survey documented  
the Ehattesaht living at the Esperanza and Nuchatlaht Inlet region, again within the  
present Ehattesaht territorial claimed area. Then in 1865, Laughton listed the  
Ehattesaht as one of the Nootka Sound tribes.  
[318] In September 1865, members of the Vancouver Island expedition explored  
the Zeballos River and noted a village at the head of the Zeballos Inlet in the area of  
Ehatis. Superintendent Powell visited the Ehattesahts in 1874, and Peter O’Reilly,  
Indian Reserve Commissioner, established their reserves in 1889. Superintendent  
Powell wrote, “the Indians resident in this inlet are remnants of the Nuchatlitz  
[Nuchatlaht] and E-hat-is-aht [Ehattesaht] and they number 256; their chiefs are  
named Tle-nen-o-ou-ick and Moquinna. Like the majority of Indians on this coast,  
these took little, or no, interest in the allotment of their reserves, but after various  
conversations with them … they accompanied me and assisted in selecting 13 small  
fishing stations” (Inglis, p. 175). O’Reilly established four Indian reserves for the  
Ehattesaht. Each of these reserves, according to Mr. Inglis, equated with a local  
group site or a confederacy site.  
[319] Mr. Inglis concluded, at p. 176:  
Based on documentary records from the Contact, Colonial, and post-  
Confederation periods, the Ehattesaht, or groups joined together with the  
Ehattesaht, lived on the lands and controlled the lands and waters  
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surrounding the north shore of Esperanza Inlet, including Queen’s Cove,  
Little Espinosa Inlet, and Zeballos Inlet, and the outside coast to Rugged  
Point, throughout the period of study. There is no evidence in the historic  
documentary record of other aboriginal groups occupying Ehattesaht territory  
during this period.  
[320] Canada says that the issue of which local groups occupied which part of the  
claim area at contact is anything but clear.  
[321] Dr. McMillan acknowledged that the northern Nuu-chah-nulth groups, that is,  
the Ka:’yu:k’t’h/Che:k’tles7e’h, Nuchatlaht, Ehattesaht and Mowachaht, did not have  
the access to abundant fisheries that the southern groups did and that this, as well  
as warfare, may well have played a part in the process of amalgamation.  
[322] The evidence is not clear as to the groups which came together to form what  
is now the Ehattesaht. It is possible that there were more groups living in this area  
than the ones identified by Drucker. For instance, Captain Richards noted the  
presence of a third group in addition to the Ehattesaht and Nuchatlaht called the  
Aoquas. Mr. Inglis acknowledged that the identity of the Aoquas group is unclear. It  
is not known what happened to this group.  
[323] Although the antecedents of the Ehattesaht are not entirely clear, particularly  
given evidence of co-mingling with their co-plaintiff, the Nuchatlaht, I am  
nevertheless satisfied that the evidence demonstrates a sufficient connection  
between the present day Ehattesaht and the people who occupied their territories at  
contact such that they are the proper rights holder.  
ii.  
Mowachaht/Muchalaht  
[324] The Mowachaht/Muchalaht claim territorial fishing rights and title to the lands  
and waters in the southern Nootka Sound region, including the southern part of the  
outside coast of Nootka Island from north of Bajo Point, the offshore waters including  
the entrance to Nootka Sound, Tahsis Inlet, Tlupana Inlet, Bligh Island and the  
surrounding waters, Muchalaht Inlet, and the shore and offshore waters of Hesquiaht  
Peninsula just north of Escalante Point. As described in the statement of claim, the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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Mowachaht/Muchalaht claim the foreshore and submerged waters of the Tahsis and  
Gold Rivers.  
[325] The Mowachaht are an amalgamation of the Mowachaht and Muchalaht  
tribes. Both Dr. Lovisek and Mr. Inglis agree that pre-contact, various smaller local  
groups from the southern Nootka Sound region joined to form the Yuquot-Tahsis  
Confederacy, and that by the colonial period these people were known as the  
Mowachahts or the Nootkas.  
[326] The Muchalaht tribe was a consolidation of independent local groups who  
joined together for mutual protection. Their territory included the areas surrounding  
Muchalaht Inlet and Gold River. From the late 1800s, the Muchalaht were closely  
connected with the Mowachaht through inter-marriage and residency. They officially  
joined together in 1951.  
[327] Based on the extensive archaeological evidence of Dr. Marshall, whose work  
was referred to by all of the experts, Dr. Lovisek and Mr. Inglis date the formation of  
the Yuquot-Tahsis Confederacy to between 1600 and 1700 A.D. Also well  
documented is the seasonal round of the Yuquot-Tahsis Confederacy. Dr. Lovisek  
agreed that the seasonal round developed hand-in-glove with the emergence of the  
Confederacy. Dr. Lovisek stated that the Muchalaht joined the Yuquot-Tahsis  
Confederacy in the mid-1800s. In 1975, the Nootka Indian Band changed its name  
to the Mowachaht Indian Band and in 1994 it became the Mowachaht/Muchalaht  
Indian Band.  
[328] Based largely on Dr. Marshall’s archaeological work, Dr. Lane, Dr. Lovisek  
and Mr. Inglis agree that at contact, Nootka Sound was densely occupied with  
numerous villages on any piece of available, inhabitable land. Dr. Lovisek quoted  
Dr. Marshall as saying that the overwhelming impression “[is] of a full, densely  
occupied landscape.” Unlike some of the other plaintiff groups, Dr. Marshall also  
concluded that there was remarkable stability in the settlement pattern in Nootka  
Sound. In the contact period, many maritime explorers noted a seasonal round  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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pattern of residence between the outside village at Yuquot and Tahsis at the head of  
the Tahsis Inlet.  
[329] The Mowachaht/Muchalaht claim two rivers: a portion of the Tahsis River  
from Tahsis Inlet to approximately seven kilometres upstream and the Gold River  
which flows from Muchalaht Lake to the head of Muchalaht Inlet.  
[330] Tahsis River was the fall fishing village of the Yuquot-Tahsis Confederacy.  
Maquinna maintained a large village at Tahsis that was described by Captain  
Vancouver. Jewitt also discussed Tahsis based on his residence there for two  
seasons while captive at Nootka Sound. There are also several observations of the  
Muchalaht use and occupation of the Gold (Muchalaht) River.  
[331] Canada submits that the Mowachaht/Muchalaht have the strongest case of all  
the plaintiffs for inferring that they descend from the aboriginal inhabitants of the  
claim area at contact. It says that while the identity and specific locations of all the  
groups at contact is unknown, there is no evidence that this plaintiff acquired new  
territory by force in the era post-contact and post-sovereignty. It further says there is  
no evidence of significant geographic displacements around the time of contact for  
this plaintiff as there is for other plaintiffs.  
[332] Canada contends that notwithstanding its position just stated, the plaintiffs  
have not attempted to decipher the evidence in order to demonstrate how the  
Mowachaht/Muchalaht reflect the composition of those ancestral aboriginal groups.  
They fault the plaintiffs for effecting a superficial analysis of the evidence concerning  
continuity of identity. However, Canada states at para. 1073 of its submissions that  
“[t]he modern Mowachaht trace their roots at contact to the local groups comprising  
the Yuquot-Tahsis Confederacy and the Tlupana Inlet groups.” I assume Canada  
contends that the plaintiffs must lead evidence as to which of these specific groups  
identified at contact are ancestral to the Mowahchaht/Muchalaht. I do not  
understand the Marshall and Bernard test to require specific and conclusive  
evidence of ancestry. Rather, the test is focussed on the modern groups’ ability to  
demonstrate “a connection” to the pre-contact group.  
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[333] With respect to the Muchalaht, Canada submits that at or prior to contact,  
Muchalaht local groups were isolated and rarely visited the coast. It says that  
ethnographically, they occupied the Muchalaht Arm, parts of Nootka Sound south of  
Muchalaht Arm and inland north to the confluence of the Gold and Leiner Rivers and  
south in the inlet confluence with Muchalaht River.  
[334] Mr. Inglis said in his report that there is no evidence in the documentary  
record of other aboriginal groups occupying Muchalaht or Mowachaht territory during  
the contact period.  
[335] Dr. Lovisek commented in her report (at p. 174) that Nootka Sound was  
characterized by a relatively stable settlement, and that there is ethnographic and  
archaeological evidence of occupation during the contact period and well into the  
20th century. She said very few new settlements were established during the  
contact period. As to the Muchalaht, she said that they are a modern group  
comprised of at least seven pre-contact local groups. The distinct local groups  
amalgamated sometime in the post-contact period for protection from raids.  
[336] I have no difficulty in concluding that the present day Mowachaht/Muchalaht  
are connected to the groups that at contact occupied what is now their claimed  
territory in Nootka Sound.  
iii.  
Hesquiaht  
[337] The Hesquiaht claim title to the fishing territories, lands, and waters in the  
Hesquiaht Peninsula and Hesquiaht Harbour region from just north of Escalante  
Point down to approximately half way between Hesquiaht Point and Shark Point.  
The Hesquiaht claim the Purden Creek River and an unnamed creek in Hesquiaht  
I.R. No. 1.  
[338] The main modern Hesquiaht community is presently located at Hot Springs  
Cove at Refuge Cove I.R. No. 6. Hot Springs Cove falls within Ahousaht territory  
and is not claimed by the Hesquiaht. The Hesquiaht moved to Hot Springs Cove  
around 1959 because it provided a safer moorage for fishing boats, as compared to  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 114  
the open ocean waters of Hesquiaht Harbour, their previous location. In ancient  
times, canoes could be kept safely in Hesquiaht Harbour because they could be  
rolled up out of the water. In 1964 a tidal wave destroyed the majority of houses at  
Hot Springs Cove, and the Hesquiaht people living there moved to various  
alternative locations on Vancouver Island.  
[339] Canada submits that the plaintiffs have failed to prove that the Hesquiaht are  
rights holders. It concedes that some Hesquiaht ancestors inhabited the claim area  
at contact, but says that the evidence is unclear as to what happened to each of the  
local groups that inhabited the area at the time of contact. It also contends that  
there appears to have been some co-mingling between the Hesquiaht and their  
neighbours.  
[340] Dr. Lovisek wrote in her report, at p. 179:  
The modern Hesquiaht consist of all or part of between five and perhaps 12  
named groups, nine of which had their own territory. Five of these groups  
were local groups and seven groups were either family groups associated  
with the five local groups or some may have been local groups. Of the 12  
named groups having territorial rights in Hesquiat Harbour, five local groups  
have been identified by Drucker. The main community of the Hesquiaht is at  
Refuge Cove I.R. #6, also known as Hotsprings Cove. The local groups of  
Hesquiat Harbour occupied territory which included all of the shoreline,  
adjacent waters and land from Split Cape on the outer coast to the north,  
Hesquiat Harbour and Hesquiat Lake, to a point on the outer coast midway  
between Refuge Cove [Hot spring Cove] and south to Hesquiat Point. The  
five local groups occupied territories that included long stretches of shoreline,  
numerous offshore reefs, semi protected and fully protected harbour  
shorelines, numerous small lakes and streams as well as Hesquiat Lake.  
The local groups functioned as independent socio-political units until  
approximately the mid 19th century when they amalgamated into the modern  
group known as the Hesquiaht.  
…
Of the five precontact local groups at least two were outer coast local groups,  
the Homisath and the Haimai’isath. One local group was a transitional local  
group known as the Kiqinath which occupied both areas, and two local  
groups were inner coast local groups known as the Ma’apiáth and the  
Ya.qhsisath.  
[341] According to Dr. Marshall, as noted by Dr. Lovisek, 11 of the sites located by  
her “had little to no archaeological evidence for prehistoric occupation indicating they  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 115  
were established during the historic period (that is, after contact) … As noted, all of  
Hesquiaht Harbour local groups amalgamated at Heckwi, which was formerly the  
village for the Haimai’isath during the historic period.” (According to Mr. Inglis,  
Heckwi is the same place as is now referred to as Hesquiaht I.R. No. 1.)  
[342] According to Dr. Lovisek, amalgamation of the groups at Heckwi (Hesquiaht)  
resulted in a change in the exploitation pattern to that of a seasonal round.  
Dr. Lovisek says that archaeological evidence indicates that this settlement around  
Hesquiaht Harbour was abandoned. Reserves were set aside for the Hesquiaht in  
the 1880s and included various locations used pre-contact: Hesquiaht I.R. No. 1,  
Homais I.R. No. 2, Iusuk I.R. No. 5, Maahpe I.R. No. 4, and Tehmit I.R. No. 3.  
[343] The plaintiffs note that the Hesquiaht are infrequently mentioned in the  
contact period records because of the difficulty of accessing their territory. However,  
they were probably the first aboriginal people contacted by Europeans. It is thought  
that the canoes which came out and traded with Juan Pérez of The Santiago in 1774  
were Hesquiaht. The Santiago’s location was offshore Hesquiaht territory.  
[344] I conclude that there is a proven connection between the present day  
Hesquiaht and the local groups that occupied those territories at contact, and that  
this connection is sufficient for the Hesquiaht to prove that they are rights holders.  
iv.  
Ahousaht  
[345] The Ahousaht claim fishing rights and title to the foreshore and submerged  
waters in northwestern Clayoquot Sound, including Sydney Inlet, Shelter Inlet, Millar  
Channel, Herbet Inlet, Bedwell Sound, Warn Bay and part of Fortune Channel, as  
well as Flores Island and Vargas Island and the surrounding islands and waters.  
They also claim title to the foreshore and submerged waters of the Megin River.  
[346] The history of the Ahousaht and the territories they inhabited is generally not  
controversial as between the plaintiffs and Canada. Where controversy does arise  
is with respect to the fact that after contact, the Ahousaht acquired parts of their  
territory by force.  
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Page 116  
[347] The historical record is reasonably clear that the Ahousaht are an  
amalgamation of several groups. The original Ahousaht were located in the area of  
Blenden, Bartlett and Vargas Islands and their adjoining waters. They expanded  
their size and territories through war with the Otsosaht, their neighbours to the  
northwest, and by amalgamation with the Kelsomaht to the east, and the  
Manhousaht on the northwest, beyond the Otsosaht territory.  
[348] In the early 1800s, the Ahousaht acquired the territory of the Otsosaht  
through a protracted war that annihilated the Otsosaht to take control of their  
territory. The rationale for the war was that the Otsosaht, despite an inter-marriage  
with the daughter of the chief, refused to share fishing rivers with the Ahousaht who  
had inadequate rivers. The war began with muskets obtained from The Boston.  
Hence, Stanley Sam, an Ahousaht witness, dates the commencement of the war to  
1811. He testified a little girl was born at the outset of the war and became a lady  
when the war ended, which means she was 13 years old and thus there were 13  
years of war. Dr. Lovisek opined that the war lasted 15 years, between 1812 and  
1826. By the end of the war, the Ahousaht had gained the Otsosaht rivers and  
territory.  
[349] Canada says that the notion of acquiring rights by killing the holder of the  
rights is incompatible with the common law, and that the Ahousaht are therefore  
unable to show that they are the proper rights holder in the areas expanded by  
raiding in the post-contact and post-sovereignty eras. The plaintiffs respond to this  
contention as follows, at para. 202 of their reply:  
Canada submits that the Court should not recognize occupation that was  
obtained through warfare as that would be “unconscionable or incompatible  
with Crown sovereignty”. This is a surprising submission given that Britain’s  
very assertion of sovereignty over parts of Canada, namely New France, was  
itself effected through warfare. On Canada’s logic, Canada would be  
compelled to return Quebec to France given the “unconscionable” battle that  
took place at the Plains of Abraham.  
Moreover, the hostile territorial acquisitions had all been effected by 1846,  
which is the date of sovereignty that has been accepted by this Court.  
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[350] Mr. Inglis described forced amalgamations as follows, at p. 20 (October 26,  
2007):  
In situations where the amalgamation was by force, there was a transfer of  
ownership, and the rights and privileges of the one local group were taken  
over by another local group. In the case of warfare where the objective was  
territorial gain, the people who held the ownership rights (family of Chiefs) of  
a local group had to be killed off before those rights can be divided among  
the Chiefs of the conquering local group. The Nuu-chah-nulth term for this  
form of acquisition is his’o^k’t, meaning ‘obtained by striking.’  
[351] Dr. Lovisek and Dr. McMillan testified that in the case of forced  
amalgamations (war), the conquered group’s territory was directly absorbed into that  
of the victor. Dr. Lovisek relied on the text, R. Bouchard and D. Kennedy, Clayoquot  
Sound Indian Land Use (November 1990) as one of her sources for the Ahousaht  
history she cites. Bouchard and Kennedy, in turn, relied on ethnographic evidence  
compiled by Drucker and others. With respect to the Ahousaht-Otsosaht war, they  
noted at p. 237 of their text that the chiefs distributed the spoils of war by killing the  
chiefs who owned the territory that they wished to acquire. In other words, as  
Dr. McMillan testified, the conquerors absorbed the territory of the defeated groups.  
[352] There does not appear to be any jurisprudence that addresses whether this  
method of territorial acquisition is sufficient to extend territorial rights and/or title to  
the conqueror. I conclude on the evidence presented in this case that the traditional  
practices of this plaintiff included forced acquisition of desired territories and the  
annihilation of the owner of those territories. I further conclude that in circumstances  
of such forced territorial acquisition, there was also a transfer of the rights and  
privileges of the vanquished owner to the conquering group.  
[353] The Ahousaht claimed territory now includes what was Otsosaht territory, but  
also the Manhousaht and Kelsomaht territories. The Manhousaht formally  
amalgamated in April 1945. The Kelsomaht formally amalgamated in 1951. The  
Ahousaht were joined by the Kelsomaht in 1875. Dr. Lovisek noted that the  
amalgamation took place in 1880, after a large number of Kelsomaht drowned in a  
sealing accident. The Kelsomaht and Manhousaht still hold traditional roles within  
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Page 118  
the Ahousaht today. The amalgamated Ahousaht territorial boundaries do not  
appear to be in dispute.  
[354] I am satisfied that the modern-day Ahousaht are connected to the pre-contact  
groups including Ahousaht, Kelsomaht, Otsosaht, and Manhousaht. Those four  
groups have in the various ways described amalgamated to form the modern-day  
Ahousaht. Thus, the Ahousaht have demonstrated a connection to those four pre-  
contact groups and their distinctive culture.  
v.  
Tla-o-qui-aht  
[355] The Tla-o-qui-aht claim title and fishing rights to the submerged lands and  
waters in the south eastern Clayoquot Sound area, including those surrounding  
Kennedy Lake, Tofino Inlet, part of Fortune Channel, Lemmens Inlet, Browning  
Passage, Grice Bay and Esowista Peninsula, and south to part of Long Beach. The  
Tla-o-qui-aht also claim title to the Kennedy River.  
[356] The plaintiffs say that the Tla-o-qui-aht have owned, used and occupied their  
claimed territory since the time before contact. Canada counters that the Tla-o-qui-  
aht have failed to prove that they are the descendents of the people who occupied  
the outside coastal areas of their claimed area at contact. Rather, it says, the  
available evidence suggests that pre-contact, the only dominant people in the  
outside coastal claim area were the Hisauistath. The Hisauistath, however, were  
annihilated in an attack by an alliance of the inland local groups. Canada says that  
the date of this attack and subsequent occupation of the Hisauistath territory is  
uncertain but likely occurred after contact.  
[357] The event that is the subject of this controversy is the Clayoquot-Esowista  
war. At p. 196 of her report, Dr. Lovisek described the Clayoquot-Esowista war as  
follows:  
Although the date is unclear the Clayoquot local group allied with the  
Shew’aht, Kwoktlasaht and Aqowitisaht to annihilate the Hisauistath and take  
over their territory. The allied groups under the leadership of the Clayoquot  
local group took Hisauistath territory (including the sockeye rivers), Long  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 119  
Beach, and islands for sea lions. The oral tradition refers to this event as the  
Clayoquot-Esowista war (c. 1812-1836).  
Over an estimated interval of about a year the Clayoquot alliance killed or  
merged with as many as ten formerly independent precontact groups. The  
conquering Clayoquot chief, Ya’aihlstohsmahhlneh took the name of  
Wickaninnish. In his new capacity Wickaninnish redistributed all the  
Hisauistath property and privileges which included salmon streams, Esowista  
and various islands used by sea lions at the east end of Long Beach. The  
newly formed amalgamated group took the name, Clayoquot and included  
peoples who occupied and used the Kennedy Lake and Kennedy River area,  
Tofino Inlet, Esowista Peninsula and islands off Meares Island. Their main  
village was established at Opitsat on Meares Island (Opitsat I.R. #1).  
[358] Dr. Lovisek testified that the modern Clayoquot are a late historical period  
amalgamation of an unknown number of independent local groups from the Kennedy  
Lake and Clayoquot Sound region. The first recorded observation on this point  
comes from Meares in 1788. At that time, Meares observed Chief Wikaninnish to be  
in control of what is now the Tla-o-qui-aht claim area. He described Wikaninnish’s  
house in the villages, at p. 219:  
Abreast of the ship, on one of the islands, we perceived a village almost  
thrice as large as that of Nootka …  
On entering [Wickaninnish’s] house, we were absolutely astonished at the  
vast area it enclosed. It contained a large square, boarded up close on all  
sides to the height of twenty feet, with planks of an uncommon breadth and  
length…  
… [we] descended down the chin into the house, where we found new matter  
for astonishment in the number of men, women and children, who composed  
the family of the chief; which consisted of at least eight hundred persons.  
These were divided into groupes, according to their respective offices, which  
had their distinct places assigned them.  
[359] Dr. Lovisek did acknowledge that the amalgamation process of what became  
Clayoquot, then Tla-o-qui-aht, territory “may have started in the late pre-contact  
period but continued into the contact period with new intensity likely related to the  
maritime fur trade.”  
[360] Prior to the amalgamation, the inland local group, which has been referred to  
as the Kennedy Lake tribes, rarely visited the coast but, rather, occupied sites at  
Kennedy and Clayoquot Lakes (inland locations), according to Drucker as cited in  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 120  
Lovisek. There they fished for salmon but had no access to herring grounds or  
halibut banks. After amalgamation, the Kennedy Lake tribes acquired access to new  
resources such as whales, sea otters and other sea resources.  
[361] With respect to Canada’s denial that the Tla-o-qui-aht have proven that they  
occupied the outside coast area of their claim area at the time of contact, the  
plaintiffs point to the evidence of Meares observing a massive village at Opitsat in  
1788. The plaintiffs contend that it is highly unlikely that the Clayoquot  
amalgamation process could have begun in 1788. I agree with the plaintiffs that it is  
improbable that Wikaninnish could have been so firmly established in such large  
villages on the outside coast if that amalgamation process had not started some  
years prior to Meares’ observations in June 1788.  
[362] Mr. Inglis summarized the evidence regarding the territory of the Tla-o-qui-aht  
as follows:  
The Tla-o-qui-aht are recorded as being in the region of south eastern  
Clayoquot Sound in the contact period. They were the people occupying this  
region in the Colonial period records, and in the records of the Department of  
Indian Affairs. Indian Reserves established in this region by the Federal  
Government in the late 19th century were identified for the Tla-o-qui-aht. The  
reserves are distributed throughout Tla-o-qui-aht territory.  
The population of the Tla-o-qui-aht at contact was estimated by observers at  
the time to be between 3,000 and 4,000 people. By 1881, the population was  
reduced to less than 350.  
At contact, five villages were recorded for the Clayoquot. In the colonial  
period, the Clayoquot had at least 12 settlements. Most were established as  
Indian reserves for the Tla-o-qui-aht by the Federal Government in the late  
19th century.  
[363] Mr. Inglis concludes that based on the documentary records from the contact,  
colonial, and post-confederation periods, the Tla-o-qui-aht lived on the lands and  
controlled the lands and waters in the south eastern Clayoquot Sound region  
throughout the period of study for his report. There was no evidence of another  
aboriginal group occupying the Tla-o-qui-aht territory during this period.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 121  
[364] I accept the conclusions of Mr. Inglis on this point. There is no conflicting  
evidence; that is, I do not perceive Dr. Lovisek to disagree with Mr. Inglis as to the  
occupation of the Tla-o-qui-aht territory from the time of contact to the modern era.  
The only real controversy in respect to the Tla-o-qui-aht appears to be in respect to  
the date on which the inside Kennedy Lake groups expanded their territory, by  
annihilating the Hisauistath and taking over their territory. I have already concluded  
that based on Meares’ observations, this must have occurred prior to contact, as  
Wikaninnish was so firmly in control of this large territory when first observed by  
Meares.  
[365] I conclude from the foregoing that the modern-day Tla-o-qui-aht are  
connected to the groups that occupied their claim territories at or about the time of  
contact.  
2.  
Species specificity  
[366] As part of the integrality analysis, I now turn to species specificity.  
[367] The plaintiffs seek a declaration that they have an aboriginal right to harvest  
all species of fisheries resources in their claimed territories for a variety of purposes.  
In the alternative, they claim a right to harvest one or more species, although they do  
not specify which. The plaintiffs define fisheries resources as including all species of  
fish, shellfish and aquatic plants. They say that their modern-day aboriginal right is  
properly characterized as a right to harvest and sell all species of fish available to  
them within their territory.  
[368] The plaintiffs submit that it is well settled that aboriginal rights, and fishing  
rights in particular, are not species specific. They rely on Lax Kw’alaams Indian  
Band, where Satanove J. wrote, at para. 498:  
I agree that an aboriginal right, once proven, is not limited in terms of species  
of the specific resource which formed the subject of the ancestral activity on  
which the aboriginal right is based.  
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Page 122  
[369] Similarly, in Tsilhqot’in Nation, at para. 1246, Vickers J. accepted that  
aboriginal rights to trade skins and pelts were not species specific:  
This Aboriginal right is properly characterized as a right to trade skins and  
pelts as a means to secure a moderate livelihood. In my view, the case law  
does not support Canada’s argument that this right must be restricted to  
specific species of animals. I find that such an approach would unduly  
frustrate the modern expression of this Aboriginal right.  
[370] The plaintiffs also rely on Powley and Sappier, two Supreme Court of Canada  
cases in which the Court held that the focus of aboriginal rights is on activities, not  
on particular resources. In Powley, the Crown at trial had argued for a single  
species approach in an aboriginal hunting rights prosecution. The trial judge said “to  
take this approach one must suspend common sense” and held that the right to hunt  
is not one that is game specific: R. v. Powley, [1999] 1 C.N.L.R. 153 (Ont. Ct. Prov.  
Div.). The Supreme Court of Canada in Powley, at para. 20, agreed with the trial  
judge’s characterization of the right:  
We agree with the trial judge that the periodic scarcity of moose does not in  
itself undermine the respondents’ claim. The relevant right is not to hunt  
moose but to hunt for food in the designated territory.  
[Emphasis in original]  
[371] Sappier concerned an aboriginal right to harvest timber. The New Brunswick  
Court of Appeal wrote at R. v. Sappier, 2004 NBCA 56, [2004] N.B.J. No. 295, aff’d  
at SCC, at para. 33:  
By way of introduction, and as a summary of what is to follow, the  
jurisprudence tells us that it is not permissible to characterize an aboriginal  
right in terms of the species of fish being harvested (e.g. perch or salmon).  
Nor is it permissible to characterize the nature of the aboriginal right in terms  
of the means used in furtherance of the harvesting activity (e.g. the use of  
drift nets). What is of immediate importance is whether the aboriginal right to  
fish is for purposes of personal consumption or trade.  
[372] The Supreme Court of Canada held, at para. 21:  
… the respondents led most of their evidence about the importance of wood  
in Maliseet and Mi’kmaq cultures and the many uses to which it was put.  
This is unusual because the jurisprudence of this court establishes the central  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 123  
importance of the actual practice in founding a claim for an aboriginal right.  
Aboriginal rights are founded upon practices, customs, or traditions which  
were integral to the distinctive pre-contact culture of an aboriginal people.  
They are not generally founded upon the importance of a particular resource.  
In fact an aboriginal right cannot be characterized as a right to a particular  
resource because to do so would be to treat it as akin to a common law  
property right.  
[373] Canada argues that the question of species specificity is part of the  
characterization of the aboriginal right. It says that there is no evidence that at the  
time of contact there was a market for all species of fisheries resources or that such  
a market exists today. Accordingly, Canada argues that a right to fish should not be  
characterized as a right to fish for “anything anywhere anytime” as the plaintiffs  
claim.  
[374] In support of this proposition, Canada cites Gladstone, where the Heiltsuk  
were successful in establishing an aboriginal right to fish herring spawn-on-kelp for  
commercial purposes. Canada also notes that in Lax Kw’alaams Indian Band,  
Satanove J. found that the plaintiff had established a right to sell eulachon on a  
commercial basis but no other species. She held, at para. 499:  
However, the plaintiffs’ simplistic position that the ancient trade in eulachon  
grease has transmogrified to a modern day right to commercial fishing of  
salmon, halibut and all other marine and riverine species of fish, ignores the  
fundamental fact that the Coast Tsimshian fished for sustenance, not for  
trade. …  
[375] Canada’s position, of course, is that there is no evidence of trade or  
exchange other than in a limited, opportunistic and kinship context. However,  
Canada says that if there is evidence of trade, it would be illogical to conclude that  
the Nuu-chah-nulth would have traded amongst themselves for fisheries resources  
which they each already had; consequently, those exchanges would have occurred,  
if at all, in respect of a limited number of species. Canada argues that to extend the  
aboriginal right to fisheries resources to all species of fish in the plaintiffs’ claim  
areas would be to create a modern right unrelated to the way of life of the contact  
era Nuu-chah-nulth or to the way of life of the modern claimants. Canada  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 124  
additionally notes that the modern-day fishery is regulated on a species specific  
basis.  
[376] In its written submissions, Canada sets out the species referred to in the  
evidence in respect to the individual plaintiffs. In respect of the Ehattesaht, Canada  
notes that Jewitt’s journal refers to the species being harvested by the Aitizzards. All  
the experts appear to be agreed that Aitizzards is a previous rendering of the name  
Ehattesaht. Jewitt’s journal shows that the Aitizzards brought Maquinna dentalia  
(identified as ifraw in the journal), whale blubber, train oil, slaves, sea otter skins,  
unidentified skins, dried salmon, salmon spawn, herring spawn and seals. Canada  
notes other more recent historical documents from the 1880s through to the Royal  
Commission in 1914 which indicate the Ehattesaht harvested salmon, herring and  
halibut.  
[377] With respect to the Hesquiaht, Canada notes the archaeological record  
indicates that pre-contact, rockfish and greenling were consumed by the residents of  
Hesquiaht Harbour in abundance; herring, salmon and toad fish were also  
consumed and, very rarely, halibut. Dr. McMillan agreed that the archaeological  
evidence at Hesquiaht suggests a pattern of reliance on fish caught close to shore  
and in protected waters. Dr. Lovisek detailed archaeological evidence of perch,  
dogfish, flat fish, clams, mussels, and sea snails caught by the Hesquiaht.  
[378] Turning to the Mowachaht/Muchalaht, Captain Cook noted that the people of  
Nootka Sound relied on herring, sardines, breem and small cod, mussels and sea  
mammals. Dr. Lovisek noted herring, sardines and salmon harvested by the  
Mowachaht/Muchalaht.  
[379] The Tla-o-qui-aht, being an inland group, did not have access to the plethora  
of open sea resources available in other locations. According to Canada, Drucker  
noted that the Tla-o-qui-aht relied on salmon and little else.  
[380] Meares commented on the variety of fish caught. In 1788 he wrote, at p. 244:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 125  
Vast quantities of fish are to be found, both on the coast and in the sounds or  
harbours. – Among these are the halibut, herring, sardine, silver-bream,  
salmon, trout, cod, elephant-fish, shark, dog-fish, cuttle-fish, great variety of  
rock-fish, &c. All of which we have seen in the possession of the natives, or  
have been caught by ourselves.  
(Exhibit 152)  
[381] As well, Martínez, who spent six months in Nootka Sound in 1789, described  
the variety of fish, at p. 197:  
Their meals, when of largest variety, consist of cooked fish, mussels, clams,  
sardines, dried herrings, whale – which they use in place of bread – sea-wolf  
and sea-otter, all kinds of shell-fish and some sea herbs; to eat these, they  
mix them with whale-oil.  
[382] The plaintiffs say that to the present day, the Nuu-chah-nulth have  
opportunistically exploited the resources available to them. They have adapted to  
changing conditions and fishing restrictions, and continue to fish the species they  
have the means and opportunity to harvest.  
[383] Elsewhere in these Reasons, I discuss the proper characterization of the right  
claimed. I explain that the characterization of the right should be sufficiently broad to  
encompass the activity that is integral to the way of life at contact as it has evolved  
to the present day. The activity in question here is fishing, and to require the  
plaintiffs to prove that right in respect to each species is inconsistent with the  
evidence regarding their way of life. The Nuu-chah-nulth people followed a seasonal  
round which corresponded to the seasonal availability of various species of fish.  
Species gained and lost importance depending upon their abundance. That was the  
pattern during both pre- and post-contact periods, and it has continued to modern  
times. In my view, it would be an artificial limitation of the characterization of the  
plaintiffs’ fishing right to limit it to certain species. I use “fishing right” and  
“harvesting right” interchangeably.  
[384] I turn now to site specificity.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
3. Site specificity  
Page 126  
[385] The plaintiffs claim aboriginal rights in respect of territories which they have  
defined as being bounded by the foreshore of each individual plaintiff’s territory and  
extending westward from the foreshore 100 nautical miles. The approximate  
boundaries are set out on the map at Appendix A to these Reasons, and are more  
particularly described for each plaintiff at Exhibit 26 – the Base Map Book.  
[386] Canada says that the Supreme Court of Canada has avoided delineating  
precise boundaries where site specific aboriginal rights can be exercised since the  
vast majority of aboriginal rights cases before the Court have arisen in the context of  
regulatory prosecutions. In those cases, the aboriginal right is raised as a defence  
by the accused and thus the Court need only determine whether the offence  
occurred within an area in which the accused may have exercised aboriginal rights.  
As a result, descriptions of boundaries have understandably tended to be vague.  
Canada submits that in a declaratory action where there are multiple claimants  
asserting independent rights within a specifically defined claim area, such as the  
present case, the Court is required to draw boundaries with some precision around  
any site-specific aboriginal right that may be proven.  
[387] In response, the plaintiffs acknowledge that aboriginal fishing rights are site-  
specific but they say that there is simply no authority that supports the strict  
geographical definition of aboriginal rights contended for by Canada. To the  
contrary, they say, courts have described the geographic scope of aboriginal rights  
in very general terms.  
[388] Typically, courts have characterized the geographical boundaries of the  
exercise of aboriginal rights in a flexible manner:  
Mitchell – the right to bring goods across the St. Lawrence River for the  
purposes of trade;  
R. v. Adams, [1996] 3 S.C.R. 101 – the right to fish for food in Lake  
St. Francis;  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 127  
R. v. Côté, [1996] 3 S.C.R. 139 – the right to fish for food within the territory of  
the “zone d’exploitation contrôlée”;  
Powley – the right to hunt for food in the environs of Sault Ste. Marie; and  
Sappier – the right to harvest wood for domestic uses on Crown lands  
traditionally used for this purpose by the claimants’ respective First Nation.  
[389] I will begin my analysis by reviewing the law regarding site specificity.  
[390] In Côté, Lamer C.J. explained how the territorial description of an aboriginal  
right existed independently of a claim to title, at paras. 38-39, largely by referring to  
the companion case of Adams:  
38  
For the reasons I have given in the related appeal in Adams,  
supra, I find that aboriginal rights may indeed exist independently of  
aboriginal title. As I explained in Adams, at para. 26, aboriginal title is  
simply one manifestation of the doctrine of aboriginal rights:  
. . . while claims to aboriginal title fall within the conceptual  
framework of aboriginal rights, aboriginal rights do not exist solely  
where a claim to aboriginal title has been made out. Where an  
aboriginal group has shown that a particular practice, custom or  
tradition taking place on the land was integral to the distinctive  
culture of that group then, even if they have not shown that their  
occupation and use of the land was sufficient to support a claim of  
title to the land, they will have demonstrated that they have an  
aboriginal right to engage in that practice, custom or tradition. The  
Van der Peet test protects activities which were integral to the  
distinctive culture of the aboriginal group claiming the right; it does  
not require that that group satisfy the further hurdle of  
demonstrating that their connection with the piece of land on  
which the activity was taking place was of a central significance to  
their distinctive culture sufficient to make out a claim to aboriginal  
title to the land.  
We wish to reiterate the fact that there is no a priori reason why the defining  
practices, customs and traditions of such societies and communities should  
be limited to those practices, customs and traditions which represent  
incidents of a continuous and historical occupation of a specific tract of land.  
39  
However, as I stressed in Adams, at para. 30, a protected aboriginal  
right falling short of aboriginal title may nonetheless have an important link to  
the land. An aboriginal practice, custom or tradition entitled to protection as  
an aboriginal right will frequently be limited to a specific territory or location,  
depending on the actual pattern of exercise of such an activity prior to  
contact. As such, an aboriginal right will often be defined in site-specific  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 128  
terms, with the result that it can only be exercised upon a specific tract of  
land.  
[391] The Supreme Court discussed the issue again in Mitchell, noting that while  
the harvesting of fish may be intrinsically connected to a geographically defined  
area, trading of the fish may not be so tied:  
55  
The importance of trade - in and of itself - to Mohawk culture is not  
determinative of the issue. It is necessary on the facts of this case to  
demonstrate the integrality of this practice to the Mohawk in the specific  
geographical region in which it is alleged to have been exercised (i.e., north  
of the St. Lawrence River), rather than in the abstract. This Court has  
frequently considered the geographical reach of a claimed right in assessing  
its centrality to the aboriginal culture claiming it. For example, in recognizing a  
constitutionally protected Mohawk fishing right in Adams, supra, the majority  
of this Court framed the Van der Peet test as follows (at para. 34):  
The appellant argues that the Mohawks have an aboriginal  
right to fish in Lake St. Francis. In order to succeed in this  
argument the appellant must demonstrate that, pursuant to the  
test laid out by this Court in Van der Peet, fishing in Lake St.  
Francis was “an element of a practice, custom or tradition  
integral to the distinctive culture” of the Mohawks.  
The majority, in assessing the integrality of this practice to the Mohawks in  
Adams, consistently tied the claimed right to the specific area at issue - the  
region of Lake St. Francis (see paras. 37 and 45). Côté, supra, similarly  
emphasized that it is the exercise of the claimed right in a specific  
geographical area that must be integral (paras. 41-78). In that case, the  
Court stated that “[a]n aboriginal practice, custom or tradition entitled to  
protection as an aboriginal right will frequently be limited to a specific territory  
or location, depending on the actual pattern of exercise of such an activity  
prior to contact” (para. 39).  
56  
Thus, geographical considerations are clearly relevant to the  
determination of whether an activity is integral in at least some cases, most  
notably where the activity is intrinsically linked to specific tracts of land.  
However, as Lamer C.J. observed in Delgamuukw, “aboriginal rights ... fall  
along a spectrum with respect to their degree of connection with the land”  
(para. 138). In this regard, I note that the relevance of geography is much  
clearer in hunting and fishing cases such as Adams and Côté, which involve  
activities inherently tied to the land, than it is in relation to more free-ranging  
rights, such as a general right to trade, which fall on the opposite end of the  
spectrum. General trading rights lack an inherent connection to a specific  
tract of land. Thus, geography was not a relevant factor in the aboriginal  
rights trilogy of Van der Peet, supra, R. v. N.T.C. Smokehouse Ltd., [1996] 2  
S.C.R. 672, and Gladstone, supra, all cases involving claimed rights of  
exchange or trade. The claimants in these cases were only required to  
demonstrate the integrality of the claimed trading practice in general, rather  
than in relation to a specific region. Moreover, in Gladstone, where the  
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Page 129  
Heiltsuk successfully established an aboriginal right to engage in the  
commercial trade of herring spawn on kelp, the Court did not confine the  
scope of this trade to its historical reach. Such a restriction would unduly  
cement the right in its pre-contact form and frustrate its modern exercise,  
contrary to the principles set out in Van der Peet. Consequently, trading  
rights will seldom attract geographical restrictions.  
[Emphasis added]  
[392] The Supreme Court observed, in Sappier, at para. 50, that it had imposed a  
site-specific requirement on the aboriginal hunting and fishing rights it recognized in  
Adams, Côté, Mitchell and Powley. Bastarache J. held that the activity in question in  
Sappier – harvesting wood – imported a necessary geographical element and that  
its integrality to the relevant aboriginal cultures should be assessed on this basis.  
The claimed aboriginal right was ultimately characterized as a right to harvest wood  
for domestic uses on Crown lands traditionally used for this purpose by members of  
the relevant First Nations.  
[393] I conclude from these authorities that the task of defining the geographic  
specificity of a claimed aboriginal right is part of the characterization analysis. More  
importantly, it is an aspect of the “integral to the distinctive culture” analysis. The  
court looks to the evidence of the actual pattern of activity prior to contact;  
characterization of the right flows from there. Here, the rights that the plaintiffs  
claim, put at their broadest, are the rights to harvest and to sell or to trade fish. They  
do not confine this latter right of selling or trading fish to a particular geographic  
location. With respect to the harvest right, the plaintiffs claim a right to harvest all  
species of fisheries resources from within their fishing territories, or portions thereof.  
Based on the authorities, the plaintiffs must establish that their fishing practices were  
exercised within the fishing territories they claim.  
[394] I conclude that the plaintiffs must prove a pre-contact connection to the  
territories in which they claim the right to harvest fish. For instance, it is obvious that  
they are not claiming, and indeed could not claim, an aboriginal right to harvest fish  
in the Fraser River, a site far from their ancestral homes. This approach is  
consistent with the flexible manner in which evidence in aboriginal rights cases  
should be analyzed. The plaintiffs should not be required to prove their claims to a  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 130  
degree of precision that is inconsistent with the reality of the historical record: Van  
der Peet, at para. 68; Sappier, at para. 33.  
[395] With respect to the geographical specificity of the claim to fishing rights within  
the plaintiffs’ territories, Canada submits that the vast majority of species caught by  
the plaintiffs at contact were caught in rivers or from near shore marine  
environments, such as protected inlets and sounds. Consequently, it says, the  
plaintiffs have failed to establish that at contact their ancestors harvested fish  
offshore as an integral aspect of their culture. This is an important distinction  
because halibut and cod are primarily harvested from offshore fishing banks.  
Salmon may also be harvested by trolling some distance from shore. Citing Lax  
Kw’alaams Indian Band and Tsilhqot’in Nation, Canada further submits that the  
plaintiffs’ alternative claim to an aboriginal right in a portion of the claimed territory is  
not pleaded with sufficient particularity to succeed.  
[396] The plaintiffs’ pleading “or, portion thereof” has relevance only to the seaward  
longitudinal boundary of their claims because, as I find below, each plaintiff has  
sufficiently proven the latitudinal boundaries of its fishing territory. (I use the term  
“longitudinal boundary” to indicate the seaward boundary running roughly parallel to  
the shoreline, and “latitudinal boundary” to indicate the boundary between the  
individual plaintiff territories running very roughly west to east.)  
[397] The foreshore boundaries of each plaintiff’s territory, as shown in Exhibit 26,  
is proven with a sufficient degree of specificity for a rights claim (as opposed to a title  
claim), as I will discuss later in these Reasons. As to the seaward longitudinal  
boundary, the evidence (also detailed below) is compelling that each tribe fished  
within the rivers and sounds, that is, within the jaws of land, of its traditional  
territories. The Nuu-chah-nulth exercised considerable proprietary rights over the  
rivers and sounds of their territories. There is also evidence proving that they fished  
and travelled offshore; that evidence, however, is sparse as to precisely how far  
offshore each tribe or group travelled. In my view, the plaintiff’s pleading is sufficient  
to enable the Court to assess the evidence and determine a seaward boundary.  
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[398] Canada contends that there is little or no evidence that the Nuu-chah-nulth  
people fished offshore. It notes that there is very little faunal archaeological analysis  
of fish bones in the claim area. Canada submits that to the extent researchers have  
analyzed faunal deposits, the analysis proves an overwhelming reliance on species  
caught close to shore. These studies disclose little evidence of remains of halibut  
and cod, which are offshore species. Canada also relies on Dr. McMillan’s evidence  
that halibut and cod would not have been accessible in the winter months.  
[399] The plaintiffs rely on the evidence of the explorers, traders, and  
ethnographers to argue that there is evidence proving considerable offshore fishing  
activity. Some examples follow.  
[400] Alexander Walker of the Strange expedition in 1786 observed canoes laden  
with fish, including salmon and trout, which he concluded had been caught off  
Yuquot, not in the rivers. The plaintiffs say this is evidence that the salmon had  
been taken by offshore trolling. Walker also observed the broad range of gear used  
by the Nuu-chah-nulth to fish, including fish hooks made of bone, stone and shell.  
The plaintiffs say these would have been unnecessary if fishing was confined to  
shallow areas and rivers.  
[401] In 1788, Taylor of The Colnett observed the canoes coming in from the sea  
with salmon. He also observed natives successfully fishing with hooks and lines  
consistent with offshore fishing.  
[402] John Meares commented on the Nootkans’ use of hooks and lines, and  
observed that “angling” was a “common practice” of fishing.  
[403] In 1788, Robert Haswell, while in Barkley Sound, observed two native men  
who “paddled farther out to sea where they hoved too, to fish”.  
[404] Jewitt recorded “natives fishing” almost daily. He also noted that the natives  
went “about nine miles from Nootka” to catch halibut.  
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[405] Sproat observed that the Nuu-chah-nulth went about 12 miles offshore to  
access the best halibut grounds. He wrote, at p.225:  
...Hundreds of canoes, with two or three men in each, start at midnight for the  
fishing-ground, so as to arrive there in the morning. After half a day’s work, if  
the sea is moderate, the canoes are quite laden and the fishermen return.  
[406] The first contact with Europeans (Pérez in 1774) took place six miles  
offshore. In their second European encounter with Bruno de Hezeta the following  
year, the Nuu-chah-nulth paddled 18 miles from shore to meet the vessel. John  
Meares and Estevan Jose Martínez documented Wikaninnish travelling by canoe  
from Opitsat (near Tofino) to Yuquot, a distance of a little over 80 kilometres.  
[407] In January 1794, Captain Magee of The Jefferson encountered the Ahousaht  
chief in Barkley Sound where he had come to buy dried fish. That was more than  
50 kilometres from Ahousaht territory and would have required travelling in outside  
waters off Long Beach, in this case during the month of January.  
[408] Observations in the historical and ethnographic record document Nuu-chah-  
nulth travelling very long distances and showing remarkable skill using a canoe. In  
my view, not only does the evidence show that the Nuu-chah-nulth used their ocean  
territories expansively, it also shows that they had capacity to do so.  
[409] As a fishing people, the plaintiffs say that their way of life was, of necessity,  
not confined to localized areas. They regularly used their definite bounded and  
owned territories to follow the fish throughout those territories, including to distances  
miles offshore where the territories extended. They submit that the evidence  
supports their contentions in this regard. I agree with these submissions, but that  
does not resolve the question of how far offshore this Court should define the  
plaintiffs’ boundaries. The submissions of the parties on this point were not helpful.  
The plaintiffs claim 100 nautical miles of which there is no evidence. In oral  
argument, they made reference to lesser distances referenced in the evidence.  
Canada says that in the absence of a pleading specifying a distance, it need not  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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address the issue. In my view, the pleading “or portion thereof” is sufficient for the  
Court to assess the extent of the territory claimed by the plaintiffs.  
[410] Hezeta encountered the Nuu-chah-nulth 18 miles offshore. Sproat’s  
observations of offshore fishing extended to 12 miles. The experts testified that  
Sproat’s observations about fishing methods appeared to have considerable time  
depth. Jewitt noted the natives fished about nine miles offshore. Drucker noted that  
the Nuu-chah-nulth territories extended for miles offshore (p. 247), and that “not only  
rivers, but inlets, bays, and the outside seas were divided by natural landmarks into  
tracts which belonged to various chiefs.” Walker observed in 1786 that a group of  
canoes had been following his ship when he left Espiranza Inlet but left when the  
ship apparently crossed a boundary line into another group’s territory. Meares  
recorded a similar observation, that is, that the chiefs of the territories of which he  
was sailing abreast accompanied him until he passed into other chiefs’ territories. In  
addition, many of the plaintiff band members testified about what they understood to  
be long traditions of fishing offshore at halibut banks, which were approximately  
twelve miles offshore.  
[411] I am satisfied that despite the relative absence of archaeological records (and  
there has not been extensive archaeological research in most parts of the plaintiffs’  
territories) of faunal deposits of cod and halibut, there is evidence that the Nuu-chah-  
nulth’s traditional territories and fishing in those territories extended beyond the  
rivers and sounds to the offshore waters. The evidence, however, is sparse as to  
how far offshore the Nuu-chah-nulth regularly fished. Doing the best I can with the  
evidence available, I would accept that the plaintiffs’ fishing territories include the  
rivers, inlets, and sounds within each plaintiff’s territory as shown in Exhibit 26.  
Some of the plaintiffs’ elders who testified described contemporary offshore fishing  
at halibut fishing banks. These are probably the same fishing banks referred to by  
Jewitt and Sproat. Jewitt’s evidence that the fishing territories regularly used were  
about nine miles offshore does not appear to be contradicted and is the best  
evidence as to the distance offshore the Nuu-chah-nulth travelled. His evidence is  
supported by the other explorer evidence I mentioned. On the basis of all of this  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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evidence, I am persuaded the Nuu-chah-nulth fishing territories extended at least  
nine miles offshore.  
[412] I now turn to the evidence of the boundaries between the various Nuu-chah-  
nulth territories, or what I have called the latitudinal boundaries. There is  
considerable evidence that the Nuu-chah-nulth people had strict customs of  
ownership of territories and resources within their territories, as well as strict notions  
of boundaries. The plaintiffs plead that they exercised their ancestral fishing  
practices within the boundaries of their own territories. While Canada argues that it  
is necessary to draw precise boundaries around those territories, the plaintiffs say  
that for the purposes of proving aboriginal rights, as opposed to aboriginal title, it is  
not necessary to strictly construe the boundaries of each plaintiff. I agree with the  
plaintiffs. The determination of territorial boundaries is somewhat flexible and  
primarily requires the plaintiff to prove a connection with the territory sufficient to  
prove that fishing in that territory is integral to its culture.  
[413] I have already reviewed the evidence linking each plaintiff group to the  
modern-day plaintiffs. Drucker prepared territorial maps of each of the northern and  
central Nuu-chah-nulth groups he studied. The maps depict the territorial  
boundaries of each group, as well as the local group sites within those territories.  
Mr. Inglis testified that based on his research, he is in agreement with Drucker’s  
boundaries. In addition to Drucker, the sources used by Mr. Inglis include the  
explorer and fur trade maps and journals, the maps prepared by the British  
hydrographic study of the coast conducted between 1860 to 1862, and the reserve  
creation documents from the 1880s. It is my view that the documentation of  
territorial boundaries of the various groups has considerable time depth.  
[414] Insofar as we are dealing with the exercise of fishing rights, those foreshore  
boundaries are pleaded with sufficient particularity to link the territories to the various  
plaintiff groups. The harvesting of fish in the environs of those territories is  
sufficiently described in the plaintiffs’ pleadings. It is unnecessary to review the  
evidence of the plaintiffs’ territories with the same specificity that would be required  
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for title adjudication. Accordingly, I find that the plaintiffs have proven the necessary  
site specificity as pleaded and as shown on the maps in Exhibit 26, with the  
exception of the offshore boundary which I would draw at nine miles from shore, that  
is, from a line drawn from headland to headland within each plaintiff’s territory.  
E.  
Continuity with Modern Activity  
[415] In order for an activity to be recognized as an aboriginal right, the present  
practice, custom or tradition must have reasonable continuity with the practices,  
customs and traditions that existed prior to contact. As Lamer C.J. explained at  
para. 63 of Van der Peet:  
... It is precisely those present practices, customs and traditions which can be  
identified as having continuity with the practices, customs and traditions that  
existed prior to contact that will be the basis for the identification and  
definition of aboriginal rights under s. 35(1). Where an aboriginal community  
can demonstrate that a particular practice, custom or tradition has continuity  
with the practices, customs and traditions of pre-contact times, that  
community will have demonstrated that the practice, custom or tradition is an  
aboriginal right for the purposes of s. 35(1).  
[416] Lamer C.J. went on to explain that the concept of continuity does not require  
aboriginal groups to provide evidence of an unbroken chain of continuity between  
their current practices and those which existed prior to contact; an interruption will  
not preclude the establishment of an aboriginal right. Courts are to exercise  
flexibility, he wrote, in assessing the establishment of continuity.  
[417] Importantly, pre-contact practices are allowed to evolve and may find modern  
form. Bastarache J. discussed this notion at paras. 48-49 of Sappier:  
48  
Although the nature of the practice which founds the aboriginal right  
claim must be considered in the context of the pre-contact distinctive culture  
of the particular aboriginal community, the nature of the right must be  
determined in light of present-day circumstances. As McLachlin C.J.  
explained in R. v. Marshall, [2005] 2 S.C.R. 220, 2005 SCC 43, at para. 25,  
“[l]ogical evolution means the same sort of activity, carried on in the modern  
economy by modern means.” It is the practice, along with its associated  
uses, which must be allowed to evolve. The right to harvest wood for the  
construction of temporary shelters must be allowed to evolve into a right to  
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harvest wood by modern means to be used in the construction of a modern  
dwelling. Any other conclusion would freeze the right in its pre-contact form.  
49  
Before this Court, the Crown submitted that “[l]arge permanent  
dwellings, constructed from multi-dimensional wood, obtained by modern  
methods of forest extraction and milling of lumber, cannot resonate as a  
Maliseet aboriginal right, or as a proper application of the logical evolution  
principle”, because they are not grounded in traditional Maliseet culture  
(appellant’s factum in Sappier and Polchies appeal at para. 76; appellant’s  
factum in Gray appeal at para. 80). I find this submission to be contrary to the  
established jurisprudence of this Court, which has consistently held that  
ancestral rights may find modern form: Mitchell, at para. 13. In Sparrow,  
Dickson C.J. explained that “the phrase ‘existing aboriginal rights’ must be  
interpreted flexibly so as to permit their evolution over time” (p. 1093). Citing  
Professor Slattery, he stated that “the word ‘existing’ suggests that those  
rights are ‘affirmed in a contemporary form rather than in their primeval  
simplicity and vigour’” (p. 1093, citing B. Slattery, “Understanding Aboriginal  
Rights” (1987), 66 Can. Bar Rev. 727, at p. 782). In Mitchell, McLachlin C.J.  
drew a distinction between the particular aboriginal right, which is established  
at the moment of contact, and its expression, which evolves over time (para.  
13). L’Heureux-Dubé J. in dissent in Van der Peet emphasized that  
“aboriginal rights must be permitted to maintain contemporary relevance in  
relation to the needs of the natives as their practices, traditions and customs  
change and evolve with the overall society in which they live” (para. 172). If  
aboriginal rights are not permitted to evolve and take modern forms, then  
they will become utterly useless. Surely the Crown cannot be suggesting that  
the respondents, all of whom live on a reserve, would be limited to building  
wigwams. If such were the case, the doctrine of aboriginal rights would truly  
be limited to recognizing and affirming a narrow subset of “anthropological  
curiosities”, and our notion of aboriginality would be reduced to a small  
number of outdated stereotypes. The cultures of the aboriginal peoples who  
occupied the lands now forming Canada prior to the arrival of the Europeans,  
and who did so while living in organized societies with their own distinctive  
ways of life, cannot be reduced to wigwams, baskets and canoes.  
[418] I have already reviewed the evidence of fishing and trade in fish from contact  
to 1850. What follows is a review of the evidence with respect to fishing activities  
from 1850 up to the modern period.  
[419] The plaintiffs submit that the evidence demonstrates that prior to contact,  
fishing (all species for all purposes) and trading were practices integral to their  
culture. Over the more than two centuries since contact with Europeans, fishing has  
continued to be fundamental to their culture, though the form of fishing has evolved,  
and the role of trade in their pre-contact society has largely been subsumed by  
participation in the commercial fishery. They say that since before contact to the  
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present day, they have and remain a fishing people whose communities rely on  
fishing to sustain them. In light of this, the plaintiffs say, the appropriate right that  
has modern relevance is a right to fish all species for all purposes, including for  
commercial sale.  
[420] Canada responds that aboriginal participation in the commercial fishery did  
not begin until such time as European settlement and the establishment of industries  
on the WCVI created a commercial market for fisheries products. It says that these  
activities are very different from the pre-contact practice of harvesting certain  
species of fish, and distributing surpluses of fisheries resources through sharing with  
kin, feasting and potlatching. Canada submits that the plaintiffs’ participation in the  
modern commercial fishery is not rooted in its activities from the pre-contact period  
and, as such, they have not established continuity.  
1.  
1850 – 1871 Colonial Period  
[421] The plaintiffs say that they traded fish and dogfish oil throughout the colonial  
period. Canada acknowledges that the Nuu-chah-nulth people harvested fisheries  
resources for FSC purposes but says that there is no connection between the  
plaintiffs’ entry into commercial fishing activities, which first began in the 1850s, and  
their pre-contact fishing practices.  
[422] From 1850 to 1900, the Nuu-chah-nulth were major producers and traders of  
dogfish oil which they traded with European traders. Dr. Lovisek (relying on Sproat)  
opined that the Nuu-chah-nulth of Barkley Sound bartered slaves, canoes, articles of  
food, clothing or ornament from colonists in exchange for oil, fish skins and furs.  
Sproat described a trade during this period between the Nuu-chah-nulth and the  
tribes at the southern end of Vancouver Island and on the American side of the  
border. He stated that the Nuu-chah-nulth traded cedar bark baskets and dried  
halibut and herring in exchange for camas, which is a lily-type of bulbous plant.  
Sproat also commented, at p. 38, about the nomadic nature of the Huu-ay-aht tribe:  
… Following the salmon as they swim up the rivers and inlets, the natives  
place their summer encampments at some distance from the seaboard,  
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towards which they return for the winter season about the end of October,  
with a stock of dried salmon – their principal food at all times. By this  
arrangement, being near the seashore, they can get shellfish, if their stock of  
salmon runs short, and can also catch the first fish that approach the shore in  
the early spring. Every tribe, however, does not thus regularly follow the  
salmon; some of the tribes devote a season to whale fishing, or to the capture  
of the dogfish, and supply themselves with salmon by barter with other tribes.  
[423] Sproat noted the Nuu-chah-nulth trade of halibut off Barkley Sound, at p. 225:  
Thousands of halibut, some of them weighing more than 200 pounds, are  
caught by the natives and are exchanged for the potatoes, gammaas  
[camas], rush mats and other articles.  
[424] Mr. Inglis cited an 1862 article from a Victoria newspaper, The British  
Colonist, in which it was noted the Barkley Sound Indians had been offering codfish  
for sale. Mr. Inglis also reported Sproat’s reference (p. 37) that the Nuu-chah-nulth  
depended mainly on fish for their means of subsistence and that any change in the  
habits of the fish or a serious diminution in the fish would “reduce the Aht people to  
great straits.” As cited earlier in these Reasons, Sproat indicated “this fish is to man  
here what the corn crop is in England or what the potato crop was in Ireland.”  
[425] I conclude that the Nuu-chah-nulth fished and sold or traded fish including  
salmon, halibut, dogfish and dogfish oil during the colonial period.  
2.  
1871 – 1920 Early Confederation Period  
[426] To place this period in its historical context, British Columbia entered into  
Confederation in 1871. Fisheries and Indians came under the jurisdiction of the  
federal government at that time.  
[427] Canada argues that there is no continuity or link between the plaintiffs’ fishing  
practices at contact and “modern” commercial fishing during the 1871-1920 period.  
It says that the participation of the Nuu-chah-nulth in the fishing industry was in the  
form of wage work rather than independent commercial fishing. By 1870, it says,  
commercial sealing had become the preferred occupation of the Nuu-chah-nulth. By  
1890 and into the early 1900s with the introduction of canneries and other fish  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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processing plants, the Nuu-chah-nulth became wage labourers fishing directly for  
the canneries, most often with boats supplied by the canneries, and/or working  
inside the canneries processing fish.  
[428] Dr. Boxberger testified that, “By 1919, the BC fishing industry employed 9000  
people, the majority of whom were Indians, and more than one-third of all salmon  
fishermen were Indians.”  
[429] Evidence as to the activities of the Nuu-chah-nulth associated with the fishing  
industry during this period was gathered by the parties primarily from government  
reports, including: an 1874 report from George Blenkinsop to the Department of  
Indian Affairs; reports from Indian Superintendent Powell from 1872 to 1889; the  
report of a 1916 Royal Commission on Indian Affairs which travelled to the WCVI to  
meet with the Nuu-chah-nulth in their communities; and excerpts from the  
Department of Indian Affairs Annual Reports written by John A. MacDonald, then  
Superintendent of Indian Affairs; Harry Guillord, Indian Agent; Thomas White, 1887  
Superintendent General of Indian Affairs; and A.W. Vowell, Indian Superintendent in  
1895.  
[430] What is evident from a review of these documents is that the various officials  
concluded that the Nuu-chah-nulth lived by fishing, otter and seal hunting, and  
manufacturing oil from dogfish. There was resistance by these government officials  
to the notion that the Nuu-chah-nulth should be persuaded to turn their attentions to  
agriculture for subsistence. It was noted that income from fishing was good at times  
and from sealing at other times, and that the Nuu-chah-nulth went to the American  
side for the hop picking and other work, there being little work and low wages at the  
canneries.  
[431] Superintendent Powell noted the value of the fisheries to the Nuu-chah-nulth  
in his 1874 annual report, in which he stated:  
They are … the richest of any Indians I have met in the Province … There  
seems to be scarcely a limit to their productive resources, and I am told that it  
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is not at all uncommon for any Indian to realize from $500 to $1,000 per  
annum from their sealing grounds and fisheries alone.  
[432] The plaintiffs note that during this period it became illegal under Canada’s  
statutory regime for Indians to exchange fish for money or other goods.  
Section 35(2) of the Fishery (General) Regulations, S.O.R./93-53, made it an  
offence to, “buy, sell, trade, barter or offer to buy, sell, trade or barter any fish”  
without a commercial licence.  
[433] In my view, the principal occupation of the majority of the Nuu-chah-nulth  
people during this period remained associated with the fishery. The fact that many  
found sealing more remunerative does not detract from the continuing overwhelming  
importance of the fishing industry to them.  
[434] It is clear that during this period, fishing and trading in fish in its various forms  
remained important and integral activities to the Nuu-chah-nulth but gradually  
evolved into modern commercial fishing either for wages or for sale. Their  
employment also broadened to include sealing, working in canneries, hop picking  
and other wage work. I consider fishing for canneries to constitute commercial  
fishing. I am satisfied that there is sufficient continuity of commercial fishing and  
activities during this period for purposes of establishing the plaintiffs’ aboriginal  
rights.  
[435] In any event, Canada cannot argue that the plaintiffs were not exercising their  
aboriginal practices of fishing and trading in fish when fisheries regulations made it  
illegal for them to do so except with a licence.  
3.  
1920 – 1960 mid-20th century – modern period  
[436] As reviewed later in these Reasons, it is clear from the evidence of Michelle  
James, Canada’s fishery expert and Allen Wood, the plaintiffs’ fishery expert, as well  
as that of members of the plaintiff First Nations who testified, that fishing and  
commercial fishing were integral activities to Nuu-chah-nulth society in the modern  
period. Participation in the fishing industry in the modern period was very high, and  
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Page 141  
the evidence is compelling that the Nuu-chah-nulth remained a fishing people during  
this period.  
F.  
Characterization of the Right  
[437] To repeat, in Van der Peet, the Supreme Court set out a multi-tiered analysis  
to considering the existence of an aboriginal right:  
a.  
b.  
characterizing the claimed aboriginal right;  
establishing the existence of the ancestral practice, custom or tradition  
advanced as supporting the claimed right;  
c.  
d.  
determining whether the ancestral practices, customs or traditions  
were integral to the distinctive culture of the claimant’s pre-contact  
society; and  
determining whether reasonable continuity exists between the pre-  
contact practice and the contemporary claim.  
[438] Before turning to the characterization of the right, I will summarize my  
conclusions in respect to the other parts of the Van der Peet test, having now  
considered the evidence and submissions on these points.  
[439] The second and third parts of the Van der Peet analysis direct the Court to  
consider the existence of the ancestral practices supporting the claimed rights to  
both harvest fish and sell that fish, and whether those rights were integral to the  
distinctive cultures of pre-contact Nuu-chah-nulth society. At contact, the Nuu-chah-  
nulth were overwhelmingly a fishing people. They depended almost entirely on their  
harvest of the resources of the ocean and rivers to sustain themselves. The Nuu-  
chah-nulth traded these resources with other aboriginal groups both within a loosely  
defined kinship network and outside that network. After contact with Europeans, that  
well-established trading custom was expanded to adapt to the influx of European  
explorers and fur traders. Having concluded that the various Nuu-chah-nulth tribes  
shared a language and culture, I have, where appropriate, made the necessary  
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Page 142  
inferences from the evidence that all the Nuu-chah-nulth peoples engaged in trade  
with each other even though the evidence of indigenous trade cannot on the basis of  
the direct observations made at contact be attributed to each of the plaintiffs. In my  
view, there is sufficient evidence of indigenous trade up and down the WCVI for me  
to conclude that each of the plaintiffs was engaged in that indigenous trade.  
[440] I am also satisfied that fishing and trading in fisheries resources were  
practices that were integral to the distinctive cultures of pre-contact Nuu-chah-nulth  
society. I have concluded that each of the plaintiffs has demonstrated sufficient  
connection to the pre-contact society from whose aboriginal practices they claim to  
have derived their aboriginal rights. Similarly, each of the plaintiffs has  
demonstrated sufficient geographic connection between their claimed fishing  
territories and those of their ancestors from whom they claim to derive their  
aboriginal rights. Fishing was the predominant feature of the Nuu-chah-nulth society  
and I have concluded that indigenous trade in fish was also an integral feature of  
Nuu-chah-nulth society. As distinct from the conclusion reached by Satanove J. in  
Lax Kw’alaams Indian Band that any indigenous trade in fish by the plaintiff band  
was infrequent or opportunistic, I conclude these plaintiffs have proven trade in fish  
to be a prominent feature of their society.  
[441] The fourth part of the Van der Peet analysis requires the Court to consider  
whether reasonable continuity exists between the pre-contact practice and the  
contemporary claim. I have considered the evidence of continuity of fishing as it  
evolved into commercial fishing. The plaintiffs have proven that Nuu-chah-nulth  
people have continued until recent decades to fish. That fishing activity has at times  
been done as wage work, and at times on a commercial basis. The evolution of the  
modern fishery is discussed in more detail in the infringement section of this  
judgment. Suffice it to say that there is ample evidence from which to conclude that  
the plaintiffs have proven reasonable continuity between the pre-contact practice of  
fishing and trading that fish, and their contemporary claim.  
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[442] I indicated earlier in my discussion of the plaintiffs’ aboriginal rights claim that  
I would address the appropriate characterization of any rights after I reviewed the  
evidence and made my findings of fact. Having now done so, I return to the  
question of characterization.  
[443] Courts have long grappled with how to characterize aboriginal fishing rights.  
In Sparrow, the first of the modern aboriginal fishing rights cases, the Supreme  
Court considered fishing rights in the limited context of the right to fish for FSC  
purposes, and expressly declined to consider the commercial aspect to the right  
(pp. 1100-1101). The Supreme Court subsequently confronted the issue in the  
Van der Peet trilogy (Van der Peet, N.T.C. Smokehouse and Gladstone). In each of  
the three cases, whether the particular aboriginal group had an aboriginal right to  
fish for food was never in question; rather, it was the extent to which an aboriginal  
right to sell or to exchange fish existed.  
[444] The issue before the Court in the trilogy and raised again in this case is how  
to properly characterize the right to sell fish in terms of quantity where there is no  
internal limitation on the right. In contrast to fishing for FSC purposes, a right which  
is internally limited by consumption needs, a commercial fishing right is only limited  
by the abundance of fish and the catching power of the fisher. The application of  
government limitations on aboriginal fishers is discussed later in these Reasons.  
Nevertheless, Supreme Court of Canada jurisprudence suggests that I must, at least  
to some extent, incorporate some contours or limitations reflective of the aboriginal  
practice at contact with Europeans within the characterization analysis.  
[445] Van der Peet was the core decision in the trilogy with respect to  
characterization of the aboriginal right claimed. Briefly with respect to its facts,  
Mrs. Van der Peet, a member of the Sto:lo First Nation, was charged with selling  
10 salmon caught under the authority of an Indian food fish licence for $50, contrary  
to s. 27(5) of the British Columbia Fishery (General) Regulations, S.O.R./84-248.  
This provision prohibited the sale or barter of fish caught under such a licence.  
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Mrs. Van der Peet asserted an aboriginal right to sell the fish as a defence to the  
charge.  
[446] Lamer C.J., writing for the majority, began his analysis with a general  
discussion of how aboriginal rights recognized and affirmed by s. 35(1) of the  
Constitution Act, 1982 should be defined. He formulated the “integral to the  
distinctive culture” test for aboriginal rights, and set out the analysis for determining  
whether a particular activity satisfied the test: (1) characterization of the claim; (2)  
determination of whether the activity claimed is part of a practice, custom or tradition  
which was, prior to contact with Europeans, an integral part of the distinctive  
aboriginal society of the people in question; and (3) an assessment of continuity. Of  
relevance for present purposes is the question of characterizing the aboriginal right  
in question.  
[447] Lamer C.J. indicated that the correct characterization was important because  
whether or not the evidence supported the claim would depend in significant  
measure on what the evidence was being called to support. By way of illustration,  
he expressed his disagreement with the characterization of Mrs. Van der Peet’s  
claim by both the majority and dissenting judges of the British Columbia Court of  
Appeal (R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75 (B.C.C.A.)).  
[448] The majority judges had held that Mrs. Van der Peet’s claim was that the  
practice of selling fish “on a commercial basis” constituted an aboriginal right. They  
rejected her claim, in part, on the basis that the evidence did not support the  
existence of such a right. Lamer C.J. found this characterization of the appellant’s  
claim to be in error, as Mrs. Van der Peet’s claim was that the practice of selling fish  
was an aboriginal right, not that selling fish “on a commercial basis” was. He also  
considered the approach of Lambert J.A. in dissent to have been in error.  
Lambert J.A. had endorsed a “social” method of approaching aboriginal rights, which  
related “the custom to the significance of the custom in the lives of the aboriginal  
people in question”: para. 137 of the Court of Appeal judgment. Applying this  
approach to the facts before him, Lambert J.A. wrote, at paras. 149-151:  
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It seems to me also that the “social” description of aboriginal rights best  
accords with good sense in relation to the modern exercise of the rights. The  
dietary resources available to the Sto:lo Indians now are much more varied  
and ample than they were in 1846 and earlier when the people were much  
afflicted by sickness. I am sure that those Indian peoples would wish to take  
the opportunity to vary their diet in accordance with the standards of the  
Canada Food Guide. Surely, if they have an aboriginal right to fish for food it  
would be wiser in today’s times for the Indians to fish for the amount of  
salmon per capita that would have provided them with their food resources,  
livelihood and occupation in 1846 and earlier, but, instead of eating all that  
fish, to sell so much of it as they wish in order to have the financial resources  
to buy other sources of nourishment for the protection of their health.  
For those reasons I conclude that the best description of the aboriginal  
customs, traditions and practices of the Sto:lo people in relation to the  
sockeye salmon run on the Fraser River is that their aboriginal customs,  
traditions and practices have given rise to an aboriginal right, to be exercised  
in accordance with their rights of self-regulation including recognition of the  
need for conservation, to catch and, if they wish, sell, themselves and  
through other members of the Sto:lo people, sufficient salmon to provide all  
the people who wish to be personally engaged in the fishery, and their  
dependent families, when coupled with their other financial resources, with a  
moderate livelihood, and, in any event, not less than the quantity of salmon  
needed to provide every one of the collective holders of the aboriginal right  
with the same amount of salmon per person per year as would have been  
consumed or otherwise utilized by each of the collective holders of the right,  
on average, from a comparable year’s salmon run, in, say, 1800.  
In my opinion that represents the most correct contemporary expression of  
the aboriginal fishing rights of the Sto:lo people derived from their ancestral  
customs, traditions and practices.  
[Emphasis added]  
[449] As noted, Lamer C.J. found this approach to have been in error, as he  
explained at para. 52 of his reasons:  
It was however, equally incorrect to adopt, as Lambert J.A. did, a “social” test  
for the identification of the practice, tradition or custom constituting the  
aboriginal right. The social test casts the aboriginal right in terms that are too  
broad and in a manner which distracts the court from what should be its main  
focus – the nature of the aboriginal community’s practices, customs or  
traditions themselves. The nature of an applicant’s claim must be delineated  
in terms of the particular practice, custom or tradition under which it is  
claimed; the significance of the practice, custom or tradition to the aboriginal  
community is a factor to be considered in determining whether the practice,  
custom or tradition is integral to the distinctive culture, but the significance of  
a practice, custom or tradition cannot, itself, constitute an aboriginal right.  
[Emphasis added]  
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[450] In his view, the correct characterization of an applicant’s claim required  
consideration of such factors as: (1) the nature of the action which the applicant is  
claiming was done pursuant to an aboriginal right; (2) the nature of the governmental  
regulation, statute or action being impugned; and (3) the practice, custom or tradition  
being relied upon to establish the right. In applying these factors to the case before  
them, therefore, the Court would consider the actions which led to Mrs. Van der Peet  
being charged, the fishery regulation under which she was charged, and the  
practices, customs and traditions she invoked in support of her claim in order to  
appropriately characterize it.  
[451] Although subsequent courts have tended to uniformly apply these three  
factors, virtually elevating them to a test, it should be observed that Lamer C.J.  
introduced those factors with the words, “[t]o characterize the applicant’s claim  
correctly, a court should consider such factors as …”. This suggests that they are  
just that, factors that a court may consider, and that they are neither mandatory nor  
exhaustive. This flexibility is important given that Van der Peet, as well as the  
subsequent decisions that have applied the characterization analysis set down  
therein, were regulatory prosecutions, a context quite different from that at bar.  
[452] Lamer C.J. determined the correct characterization of Mrs. Van der Peet’s  
claim to be an aboriginal right to exchange fish for money or other goods. He based  
this characterization on both the specific acts which had led her to being charged, as  
well as on the regulation under which she had been charged. The sale of 10 salmon  
for $50, in the absence of evidence that she had sold salmon on other occasions or  
on a regular basis, could not be said to constitute a sale on a commercial or market  
basis. Further, the regulations under which she had been charged prohibited all sale  
or trade of fish caught pursuant to an Indian food fish licence. Thus, Lamer C.J.  
reasoned, to argue that the regulations implicated her aboriginal right required no  
more than that she demonstrate an aboriginal right to the exchange of fish for money  
(sale) or other goods (trade); it was not necessary that she demonstrate a right to  
sell fish commercially.  
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[453] The evidence in Van der Peet established that the Sto:lo fished for food and  
ceremonial purposes but that there was no regularized market system in the  
exchange of fish. Any trade that did occur was incidental to fishing for food  
purposes. This led Lamer C.J. to write that while the evidence clearly demonstrated  
that fishing for food and ceremonial purposes was a significant and defining feature  
of the Sto:lo culture, it was not sufficient to demonstrate that the exchange of salmon  
was an integral part of Sto:lo culture. Further, the absence of a regularized trading  
system or market indicated that any exchange of salmon did not take place on a  
basis sufficiently widespread to suggest that the exchange was a defining feature of  
Sto:lo society.  
[454] Lamer C.J. ultimately concluded that Mrs. Van der Peet had failed to  
demonstrate that the exchange of fish for money or other goods was an integral part  
of the distinctive Sto:lo society prior to contact. Thus, the aboriginal rights of the  
Sto:lo did not include the right to exchange fish for money or other goods.  
[455] McLachlin J. wrote dissenting reasons that took a different approach to  
identifying what constitutes an aboriginal right. In her view, that question was to be  
answered by looking at what the law had historically accepted as fundamental  
aboriginal rights. She would have held that this encompassed the right to be  
sustained from the land or waters upon which an aboriginal people traditionally relied  
for sustenance; further, trade to the extent necessary to maintain traditional levels of  
sustenance was a permitted exercise of this right.  
[456] Applying this approach to aboriginal fishing rights, McLachlin J. posed the  
question to be decided in Van der Peet as whether aboriginal people enjoy a  
constitutional right to fish for commercial purposes. (She had earlier explained in  
para. 236 that she saw little point in labelling Mrs. Van der Peet’s sale of fish as  
something other than commerce: “When one person sells something to another,  
that is commerce. Commerce may be large or small, but commerce it remains.”)  
Her general approach to determining whether an aboriginal people possessed an  
aboriginal right to trade fish was set out, at paras. 278-279:  
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The aboriginal right to fish may be defined as the right to continue to obtain  
from the river or the sea in question that which the particular aboriginal  
people have traditionally obtained from the portion of the river or sea. If the  
aboriginal people show that they traditionally sustained themselves from the  
river or sea, then they have a prima facie right to continue to do so, absent a  
treaty exchanging that right for other consideration. At its base, the right is  
not the right to trade, but the right to continue to use the resource in the  
traditional way to provide for the traditional needs, albeit in their modern form.  
However, if the people demonstrate that trade is the only way of using the  
resource to provide the modern equivalent of what they traditionally took, it  
follows that the people should be permitted to trade in the resource to the  
extent necessary to provide the replacement goods and amenities. In this  
context, trade is but the mode or practice by which the more fundamental  
right of drawing sustenance from the resource is exercised.  
The right to trade the products of the land and adjacent waters for other  
goods is not unlimited. The right stands as a continuation of the aboriginal  
people’s historical reliance on the resource. There is therefore no justification  
for extending it beyond what is required to provide the people with reasonable  
substitutes for what it traditionally obtained from the resource. In most cases,  
one would expect the aboriginal right to trade to be confined to what is  
necessary to provide basic housing, transportation, clothing and amenities –  
the modern equivalent of what the aboriginal people in question formerly took  
from the land or the fishery, over and above what was required for food and  
ceremonial purposes. Beyond this, aboriginal fishers have no priority over  
non-aboriginal commercial or sport fishers. On this principle, where the  
aboriginal people can demonstrate that they historically have drawn a  
moderate livelihood from the fishery, the aboriginal right to a “moderate  
livelihood” from the fishery may be established (as Lambert J.A. concluded in  
the British Columbia Court of Appeal). However, there is no automatic  
entitlement to a moderate or any other livelihood from a particular resource.  
The inquiry into what aboriginal rights a particular people possess is an  
inquiry of fact, as we have seen. The right is established only to the extent  
that the aboriginal group in question can establish historical reliance on the  
resource. For example, evidence that a people used a water resource only  
for occasional food and sport fishing would not support a right to fish for  
purposes of sale, much less to fish to the extent needed to provide a  
moderate livelihood. There is, on this view, no generic right of commercial  
fishing, large-scale or small. There is only the right of a particular aboriginal  
people to take from the resource the modern equivalent of what by aboriginal  
law and custom it historically took. This conclusion echos the suggestion in  
Jack v. The Queen, [1980] 1 S.C.R. 294, approved by Dickson C.J. and La  
Forest J. in Sparrow, of a “limited” aboriginal priority to commercial fishing.  
[457] In Gladstone, the appellants, members of the Heiltsuk First Nation, were  
charged under the Fisheries Act with offering to sell herring spawn-on-kelp caught  
under the authority of an Indian food fish licence. The volume of herring spawn-on-  
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kelp at issue was 4,200 pounds. The appellants raised as a defence that the  
regulations violated their aboriginal rights.  
[458] Lamer C.J. held that the actions of the appellants appeared to be best  
characterized as the commercial exploitation of herring spawn-on-kelp. However, as  
the regulations under which they were charged prohibited all sale or trade in herring  
spawn-on-kelp without the appropriate licence, the regulations were best  
characterized as aimed at the exchange of herring spawn-on-kelp for money or other  
goods, regardless of whether the extent or scale of that sale could reasonably be  
characterized as commercial in nature. Lamer C.J.’s means of resolving this  
difficulty in characterization was to address both possible characterizations of the  
appellants’ claim.  
[459] The trial judge had concluded that the Heiltsuk had regularly harvested  
herring spawn-on-kelp as a food source, and that the band had engaged in inter-  
tribal trading and barter of the herring spawn-on-kelp. Lamer C.J. found that the  
facts as found by the trial judge supported the appellants’ claim that exchange of  
herring spawn-on-kelp for money or for other goods was a central, significant and  
defining feature of the culture of the Heiltsuk prior to contact. As the evidence  
pointed to trade in the resource in tonnes, he found that the extent and scope of the  
trading activities of the Heiltsuk supported their further claim that they had an  
aboriginal right to sell herring spawn-on-kelp to an extent best described as  
commercial. Lamer C.J. concluded that the appellants had demonstrated an  
aboriginal right to trade herring spawn-on-kelp on a commercial basis.  
[460] In her concurring reasons, McLachlin J. applied the approach she had set out  
in Van der Peet. She would have found that the evidence clearly established that  
the Heiltsuk derived their sustenance from trade derived from the herring spawn-on-  
kelp resource. They relied on trade to supply them with the necessaries of life,  
principally, other food products. At paras. 164-165 she wrote:  
The next question is whether the Heiltsuk’s use of the resource of herring  
spawn on kelp was confined to sustenance or whether the trade in question  
allowed the band to accumulate wealth beyond that required for a basic  
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standard of living. The evidence indicates that large quantities of herring  
spawn on kelp were traded – amounts that would yield great wealth today  
because of large demand for herring spawn on kelp by foreign markets.  
However, the right to derive from a resource what was traditionally derived  
from that resource is not necessarily a right to harvest the same quantity of  
fish from that resource as was traditionally harvested. The right is rather to  
take from the fishery enough to secure “the modern equivalent of what the  
aboriginal people in question formerly took from the land or the fishery”.  
Despite the large quantities of herring spawn on kelp traded, the evidence  
does not indicate that the trade of herring spawn on kelp provided for the  
Heiltsuk anything more than basic sustenance. There is no evidence in this  
case that the Heiltsuk accumulated wealth which would exceed a sustenance  
lifestyle from the herring spawn on kelp fishery. It follows that the aboriginal  
right to trade in herring spawn on kelp from the Bella Bella region is limited to  
such trade as secures the modern equivalent of sustenance: the basics of  
food, clothing and housing, supplemented by a few amenities.  
[461] In N.T.C. Smokehouse, the appellant, a corporation operating a food  
processing plant, was charged under the Fisheries Act with various offences related  
to selling and purchasing fish caught under the authority of an Indian food fish  
licence. The charges arose from the appellant’s purchase of 119,435 pounds of  
salmon caught by members of the Sheshaht and Opetchesaht bands, and its sale of  
105,302 pounds of that salmon.  
[462] Lamer C.J. again applied the principles he had articulated in Van der Peet.  
He noted that in contrast to Mrs. Van der Peet’s sale of 10 salmon, the immediate  
case involved the sale of in excess of 119,000 pounds of salmon by 80 people,  
which appeared much closer to an act of commerce, defined in the Concise Oxford  
Dictionary (7th ed. 1982) as an “exchange of merchandise or services, especially on  
a large scale” (para. 18). This suggested that the appellant’s claim was that the  
Sheshaht and Opetchesaht had the aboriginal right to fish commercially. Again,  
however, the regulations under which the appellant had been charged prohibited all  
sale or trade of salmon caught under the authority of an Indian food fish licence.  
This suggested that, despite the scale and extent of the sale and trade by the  
Sheshaht and Opetchesaht, their claim was best characterized in the manner  
suggested in Van der Peet, a claim to the right to exchange fish for money or other  
goods. As in Gladstone, Lamer C.J. characterized the claim at the outset as the  
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right to exchange fish for money or other goods, and proposed to turn to the claim to  
fish commercially only if the lesser claim was established.  
[463] Ultimately, Lamer C.J. found that the findings of fact made by the trial judge  
did not support the appellant’s claim that prior to contact the exchange of fish for  
money or other goods was an integral part of the distinctive cultures of the Sheshaht  
and Opetchesaht. Sales of fish that were “few and far between” could not be said to  
have the defining status and significance necessary to find an aboriginal right to  
exchange fish for money or other goods. Moreover, exchanges of fish at potlatches  
and at ceremonial occasions, because incidental to those events, did not have the  
independent significance necessary to constitute an aboriginal right.  
[464] Although the concept of deriving a moderate livelihood from a resource as it  
was developed by McLachlin J. in the Van der Peet trilogy did not find favour in the  
Court, aspects of her reasoning were nevertheless subsequently cited in R. v.  
Marshall, [1999] 3 S.C.R. 456, where Binnie J. referred to her dissenting reasons in  
Gladstone in the context of his discussion of a treaty right to trade for “necessaries”.  
At para. 59, he wrote:  
The concept of “necessaries” is today equivalent to the concept of what  
Lambert J.A. in R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75, at p. 126,  
described as a “moderate livelihood”. Bare subsistence has thankfully  
receded over the last couple of centuries as an appropriate standard of life for  
aboriginals and non-aboriginals alike. A moderate livelihood includes such  
basics as “food, clothing and housing, supplemented by a few amenities”, but  
not the accumulation of wealth (Gladstone, supra, at para. 165). It addresses  
day-to-day needs. This was the common intention in 1760. It is fair that it be  
given this interpretation today.  
[465] His reference to para. 165 of Gladstone was to the reasons of McLachlin J.  
Binnie J. referred further to her reasons when he continued, at para. 60:  
The distinction between a commercial right and a right to trade for  
necessaries or sustenance was discussed in Gladstone, supra, where Lamer  
C.J., speaking for the majority, held that the Heiltsuk of British Columbia have  
“an aboriginal right to sell herring spawn on kelp to an extent best described  
as commercial” (para. 28). This finding was based on the evidence that  
“tons” of the herring spawn on kelp was traded and that such trade was a  
central and defining feature of Heiltsuk society. McLachlin J., however, took  
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a different view of the evidence, which she concluded supported a finding that  
the Heiltsuk derived only sustenance from the trade of the herring spawn on  
kelp. “Sustenance” provided a manageable limitation on what would  
otherwise be a free-standing commercial right. She wrote at para. 165:  
Despite the large quantities of herring spawn on kelp traditionally  
traded, the evidence does not indicate that the trade of herring spawn  
on kelp provided for the Heiltsuk anything more than basic  
sustenance. There is no evidence in this case that the Heiltsuk  
accumulated wealth which would exceed a sustenance lifestyle from  
the herring spawn on kelp fishery.  
[Emphasis in original by Binnie J.]  
In this case, equally, it is not suggested that Mi’kmaq trade historically  
generated “wealth which would exceed a sustenance lifestyle”. Nor would  
anything more have been contemplated by the parties in 1760.  
[466] Marshall was a treaty rights case, and minutes recording pre-treaty  
negotiations had referred to the concept of “necessaries” in the context of the treaty  
provision that was at issue in the case. This extrinsic evidence led Binnie J. to  
conclude that what had been contemplated in a rather ambiguous provision was a  
right to trade for necessaries, as opposed to trade generally for economic gain.  
Securing necessaries, he wrote, did not extend to the open-ended accumulation of  
wealth. The appellant in Marshall had landed 463 pounds of eel, which he sold for  
$787. Binnie J. agreed with the characterization of the appellant’s activity as small-  
scale commercial activity to help subsidize himself and his common law spouse.  
The activity fell within what was reasonably required for necessaries. Binnie J. later  
wrote that catch limits that could reasonably be expected to produce a moderate  
livelihood for individual Mi’kmaq families at present-day standards could be  
established by regulation and enforced without violating the treaty right.  
[467] Binnie J.’s comments regarding necessaries at para. 59 of Marshall were, in  
turn, cited by Vickers J. in Tsilhqot’in Nation, where he concluded that the plaintiff  
had an aboriginal right to trade in furs, pelts and other animal products as a means  
of securing a moderate livelihood. Paragraph 1263 encapsulates his factual findings  
in this regard:  
Tsilhqot’in people moved about their territory harvesting what the land had to  
offer, according to their needs and the seasons. Fish, game, root plants, and  
berries provided the staples for their diets. Salmon were a critical  
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Page 153  
component. When salmon failed, the Tsilhqot’in way of life included a trade  
of furs, root plants, and berries for salmon. I am satisfied that trade was not  
just opportunistic or incidental and was not limited to times of need. It was a  
way of life, accelerated in times of need. Trade was always undertaken for  
the necessaries of life; it was not trade to accumulate wealth. In my view, the  
trading practice of the Tsilhqot’in people, at the time of first contact and  
continuing well into the twentieth century, was more than sufficient to meet  
the tests of cultural integrality set out by the Supreme Court of Canada.  
[468] After citing para. 59 of Marshall, Vickers J. held that the right claimed was  
properly characterized as an aboriginal right to trade in skins and pelts as a means  
of securing a moderate livelihood. He further held that the evidence demonstrated  
that the Tsilhqot’in ancestors engaged in that right and that it was integral to their  
distinctive culture.  
[469] Sappier is the Supreme Court’s most recent decision that bears upon the  
characterization of aboriginal rights. In it, the Court revisited the definitional  
elements of aboriginal rights.  
[470] Sappier was a joinder of appeals arising from two separate prosecutions in  
New Brunswick. The aboriginal respondents were charged under New Brunswick’s  
Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1 with unlawful possession or  
cutting of timber from Crown lands. The logs had been cut or taken from lands  
traditionally harvested by their respective First Nations, the Maliseet and Mi’kmaq.  
The timber taken by one respondent was to be used for the construction of a house  
and the residue for community firewood; that cut by the other was to be used to  
fashion his furniture. Their defence to the charges was that they possessed an  
aboriginal and treaty right to harvest timber for personal use.  
[471] Bastarache J. authored the reasons of the majority. With respect to  
characterizing the respondents’ claim, he wrote as follows at para. 24:  
In the present case, the relevant practice for the purposes of the Van der  
Peet test is harvesting wood. It is this practice upon which the respondents  
opted to found their claims. However, the respondents do not claim a right to  
harvest wood for any and all purposes – such a right would not provide  
sufficient specificity to apply the reasoning I have just described. The  
respondents instead claim the right to harvest timber for personal uses; I find  
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Page 154  
this characterization to be too general as well. As previously explained, it is  
critical that the Court identify a practice that helps to define the way of life or  
distinctiveness of the particular aboriginal community. The claimed right  
should then be delineated in accordance with that practice: Van der Peet, at  
para. 52. The way of life of the Maliseet and of the Mi’kmaq during the pre-  
contact period is that of a migratory people who lived from fishing and hunting  
and who used the rivers and lakes of Eastern Canada for transportation.  
Thus, the practice should be characterized as the harvesting of wood for  
certain uses that are directly associated with that particular way of life. The  
record shows that wood was used to fulfill the communities’ domestic needs  
for such things as shelter, transportation, tools and fuel. I would therefore  
characterize the respondents’ claim as a right to harvest wood for domestic  
uses as a member of the aboriginal community.  
[472] Bastarache J. indicated that the word “domestic” qualified the uses to which  
the harvested timber could be put, and that the right so qualified had no commercial  
dimension. The harvested wood, therefore, could not be sold, traded or bartered to  
produce assets or raise money, even if the object of such trade or barter was to  
finance the purchase or construction of a dwelling or any of its components.  
[473] Bastarache J. also briefly discussed the notion of this right being a communal  
one, and in so doing, commented that “the right to harvest (which is distinct from the  
right to make personal use of the harvested product even though they are related) is  
not one to be exercised by any member of the aboriginal community independently  
of the aboriginal society it is meant to preserve.” In the context of fishing rights, this  
would suggest that the right to harvest fish is separate from, though related to, the  
right to exchange or sell the fish that is harvested.  
[474] Later in his reasons, Bastarache J. addressed the question of whether a  
practice undertaken for survival purposes could be considered integral to an  
aboriginal community’s distinctive culture. In concluding that the authorities did not  
support the proposition that it could not be so considered, he wrote, at para. 37:  
More recently, this Court has recognized a right to fish for food in Adams and  
in R. v. Côté, [1996] 3 S.C.R. 139. In Adams, the Court specifically noted that  
fish were only important as a source of subsistence. In Côté, Lamer C.J.  
emphasized that “[f]ishing was significant to the Algonquins, as it represented  
the predominant source of subsistence during the season leading up to  
winter” (para. 68). Moreover, this Court has previously suggested that the  
scope of s. 35 should extend to protect the means by which an aboriginal  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 155  
society traditionally sustained itself, and that the Van der Peet test  
emphasizes practices that are vital to the life of the aboriginal society in  
question: see R. v. Pamajewon, [1996] 2 S.C.R. 821, at para. 28; and  
Mitchell, at para. 12, respectively. I wish to clarify, however, that there is no  
such thing as an aboriginal right to sustenance. Rather, these cases stand for  
the proposition that the traditional means of sustenance, meaning the pre-  
contact practices relied upon for survival, can in some cases be considered  
integral to the distinctive culture of the particular aboriginal people.  
[Emphasis added]  
[475] As discussed elsewhere, Bastarache J. also rejected the notion that the pre-  
contact practice had to go to the core of the society’s identity or be a defining  
feature. It is only necessary that the practice was “integral” to the society’s pre-  
contact distinctive culture.  
[476] Bastarache J. found the right to harvest wood to be site specific, such that its  
exercise was necessarily limited to Crown lands traditionally harvested by the  
members’ respective First Nations. At the conclusion of his analysis, he found that  
the respondents possessed an aboriginal right to harvest wood for domestic uses on  
Crown lands traditionally used for this purpose by their respective First Nations.  
[477] Binnie J. wrote brief separate reasons expressing his concurrence, except  
with respect to the issue of personal use. He expressed his view that barter or sale  
within the reserve or local aboriginal community would reflect a more efficient use of  
human resources than requiring all members to exercise the right for themselves.  
Thus, for instance, a Mi’kmaq or Maliseet should be able to sell firewood to or barter  
it with an aboriginal neighbour. Binnie J. agreed with the majority that trade, barter  
or sale outside the aboriginal community would represent a commercial activity  
outside the scope of the aboriginal right established on the evidence.  
[478] Lax Kw’alaams Indian Band is a recent decision of this Court. There, the  
aboriginal plaintiffs had similarly sought to characterize their aboriginal right to fish  
commercially as including the right to sustain their community from the fish  
resources in the claimed territories. The defendant raised a number of objections  
similar to those raised by Canada in the present case, including: the plaintiffs were  
seeking a guaranteed economic position under the guise of aboriginal fishing rights;  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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the term “sustain the community” was ambiguous and unclear; the Supreme Court  
held in Sappier that there was no aboriginal right to sustenance; and, there was no  
evidence of the plaintiff aboriginal groups sustaining themselves from the sale of  
fish. The defendant also raised objections based on the failure of the plaintiff to  
include that particular characterization of the right in their pleadings.  
[479] Satanove J. indicated her agreement with most of the defendant’s  
submissions. Most important, she wrote, was the Supreme Court’s admonition in  
both Van der Peet and Sappier that it was not the significance or purpose of the pre-  
contact practice that supported the aboriginal right, but whether the practice was  
integral to the distinctive culture of the group. Although she acknowledged that the  
Court in Sappier had indicated that a traditional means of subsistence could in some  
cases be considered integral to the distinctive culture of the aboriginal group in  
question, she did not consider it appropriate to characterize the claim to sell fish on a  
commercial scale as including a right to sustain the community at what was a late  
stage in the proceedings. In the result she held that on the evidence the plaintiffs  
had failed to prove an aboriginal right to trade in fish.  
[480] Turning to the present case, I will repeat that part of the pleadings in which  
the plaintiffs set out the aboriginal rights they claim:  
(a)  
… [rights] to harvest for any purpose all species of Fisheries  
Resources in the Territories, or portions thereof, or in the Nuu-chah-nulth  
Territory, or portions thereof. For greater certainty, the aboriginal rights  
referred to herein are:  
(i)  
to harvest all species of Fisheries Resources from within the  
Territories, or portions thereof, or in the Nuu-chah-nulth Territory, or  
portions thereof, and, in the alternative, one or more of those species  
of Fisheries Resources; and  
(ii)  
to harvest those Fisheries Resources for any purpose  
including for food purposes, social purposes, ceremonial purposes,  
trade purposes, purposes of exchange for money or other goods,  
commercial purposes, purposes of sustaining the plaintiff  
communities, or one or more of those purposes;  
(b)  
… [rights] to sell on a commercial scale or, in the alternative, to sell for  
the purpose of sustaining that Band’s or Nation’s community or, in the further  
alternative, to exchange for money or other goods all species of Fisheries  
Resources, or one or more of those species, that they harvest from the  
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Territories, or portions thereof, or the Nuu-chah-nulth Territory, or portions  
thereof pursuant to their aboriginal rights referred to in paragraph (a).  
[481] The plaintiffs claim both harvest and sale rights along a spectrum, and they  
contend that it is open to me to accept whatever characterization I consider  
appropriate based upon my findings of fact.  
[482] I state at the outset that I do not consider the harvest and sale of fish “to  
sustain the community” to be a viable characterization. It incorporates the notion of  
a minimum guarantee of a certain level of fishing return, which would be contrary to  
the evidence and be a purpose-driven characterization. It would also be contrary to  
the authorities, and is therefore a characterization that I decline to entertain. That  
leaves exchange for money or other goods and sale on a commercial scale.  
[483] Exchange for money or other goods was the characterization applied by the  
Supreme Court in Van der Peet. That characterization was based on the impugned  
activity that led to the charge against Mrs. Van der Peet, the sale of 10 salmon  
caught under the authority of an Indian food fish licence for $50. Lamer C.J. held  
that the scale of the transaction could not be said to constitute sale on a commercial  
or market basis. Later in his reasons he also noted that “the appellant in this case  
has only claimed a right to exchange fish for money or other goods, not a right to sell  
fish in the commercial marketplace”. In Gladstone, he similarly contrasted an  
aboriginal right to exchange herring spawn-on-kelp for money or other goods with  
“the further aboriginal right of the Heiltsuk Band to sell herring spawn-on-kelp to the  
commercial market”. Accordingly, I interpret “exchange for money or other goods” to  
refer to small-scale sale outside the commercial market.  
[484] Some limited guidance can be gleaned from the authorities as to the scale of  
transaction that constitutes a commercial sale, as this was the right considered in  
Gladstone and raised in N.T.C. Smokehouse. Charges arose in the former case  
from the attempted sale of 4,200 pounds of herring spawn; in the latter case, from  
the sale of 119,000 pounds of salmon. In both cases, Lamer C.J. held that given the  
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Page 158  
scale of the transactions, the rights claimed were best described as aboriginal rights  
to fish commercially. At para. 18 of N.T.C. Smokehouse he wrote:  
In the case at bar, however, the claim made by the appellant appears closer  
to a claim of a right to fish commercially than was the case in Van der Peet.  
The sale of in excess of 119,000 pounds of salmon by 80 people, an amount  
constituting approximately 1,500 pounds of salmon per person, would appear  
to be much closer to an act of commerce – “exchange of merchandise or  
services, esp. on a large scale” (emphasis added), Concise Oxford Dictionary  
(7th ed. 1982) – than was engaged in by Mrs. Van der Peet, thereby  
suggesting that the claim being made by the appellant is, in fact, that the  
Sheshaht and Opetchesaht have the aboriginal right to fish commercially.  
[485] I have concluded on the evidence that the plaintiffs’ pre-contact ancestral  
communities fished and engaged in indigenous trade of fish. The evidence with  
respect to the quantity of fish that was traded is that it was substantial. Those  
quantities, nevertheless, were limited by the methods of fishing employed by the  
ancestral communities.  
[486] In my view, the plaintiffs’ ancestral practices translate into a broader modern  
entitlement to fish and to sell fish than captured by “exchange for money or other  
goods”. The small-scale sale of fish outside the commercial market is not an  
adequate modern analogue for the ancestral practices. At the same time, however,  
those ancestral practices do not equate to an unrestricted right to the commercial  
sale of fish. To the extent that “commercial” as it is used in the authorities suggests  
sale on a large industrial scale, I would decline to choose that characterization, given  
my finding that trade was not for the purpose of accumulating wealth.  
[487] In my view, the most appropriate characterization of the modern right is  
simply the right to fish and to sell fish. I consider the characterization I have chosen  
to fall within the claim as pleaded and to accord with the evidence. In the  
circumstances of this case, there is an arbitrariness in endeavouring to impose limits  
on the scale of sale at this stage of the analysis by quantifying a certain level of sale.  
Beyond stating that the right does not extend to a modern industrial fishery or to  
unrestricted rights of commercial sale, I decline to do so. Limitations on the scope of  
the right are most appropriately addressed at the infringement and justification  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 159  
stages of the analysis, as part of the reconciliation process. In this regard, I note the  
comments of Newbury J.A. at paras. 18-19 of Cheslatta Carrier Nation v. British  
Columbia, 2000 BCCA 539, 80 B.C.L.R. (3d) 212:  
18  
The foregoing reasons for following the usual rule against exercising  
jurisdiction in the absence of a “live controversy” apply in my view with even  
greater force where the definition of aboriginal rights is in issue. It is only in  
the last 20 years or so that a framework for the analysis of aboriginal claims  
has been established, case by case, by the Supreme Court of Canada. As  
Mr. Wruck argued, that analysis is a purposive one and is directed towards  
the “reconciliation” of aboriginal rights with Crown sovereignty over Canadian  
territory. In my view, such rights cannot be properly defined separately from  
the limitation of those rights. The latter are needed to refine and ultimately  
define the former: R. v. Van der Peet [1996] 2 S.C.R. 507, at paras. 30-1. As  
Cory J. stated in R. v. Nikal [1996] 1 S.C.R. 1013 in connection with treaty  
rights:  
It has frequently been said that rights do not exist in a vacuum, and  
that the rights of one individual or group are necessarily limited by the  
rights of another. The ability to exercise personal or group rights is  
necessarily limited by the rights of others. The government must  
ultimately be able to determine and direct the way in which these  
rights should interact. Absolute freedom in the exercise of even a  
Charter or constitutionally guaranteed aboriginal right has never been  
accepted, nor was it intended. Section 1 of the Canadian Charter of  
Rights and Freedoms is perhaps the prime example of this principle.  
Absolute freedom without any restriction necessarily infers a freedom  
to live without any laws. Such a concept is not acceptable in our  
society. On this issue the reasons of Blair J.A. in R. v. Agawa (1988),  
65 O.R. (2d) 505 (C.A.), at p. 524, are persuasive and convincing. He  
recognized the need for a balanced approach to limitations on treaty  
rights, stating:  
“. . . Indian treaty rights are like all other rights recognized by  
our legal system. The exercise of rights by an individual or  
group is limited by the rights of others. Rights do not exist in a  
vacuum and the exercise of any right involves a balancing with  
the interests and values involved in the rights of others. This is  
recognized in s. 1 of the Canadian Charter of Rights and  
Freedoms which provides that limitation of Charter rights must  
be justified as reasonable in a free and democratic society.”  
[at 1057-8; emphasis added.]  
19  
Applying these comments to the case at bar, it is clear that any  
aboriginal “right to fish” that might be the subject of a declaration would not  
be absolute. Like other rights, such a right may be subject to infringement or  
restriction by government where such infringement is justified. The point is  
that the definition of the circumstances in which infringement is justified is an  
important part of the process of defining the right itself.  
[Emphasis in original]  
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[488] As Newbury J.A. states, the definition of the circumstances in which  
infringement is justified is an important part of the process of defining the right itself.  
That is most definitely the case here.  
[489] Accordingly, I conclude that the plaintiffs have established aboriginal rights to  
fish for any species of fish within the environs of their territories and to sell that fish.  
(In these Reasons, when I refer to the plaintiffs’ right to fish and sell fish, the term “to  
sell fish” refers to the right to sell only that fish caught pursuant to their now proven  
aboriginal right.) The approximate boundaries of the plaintiffs’ respective territories  
are delineated in the map at Appendix A to these Reasons and in Exhibit 26, except  
that the seaward boundaries of the territories extend only nine miles. Broadly  
speaking, the right is not an unlimited right to fish on an industrial scale, but it does  
encompass a right to sell fish in the commercial marketplace. I will consider the  
important and appropriate limitations on that right in the following sections of these  
Reasons.  
[490] The plaintiffs also plead an aboriginal right to fish in their fishing territories for  
FSC purposes. Canada acknowledges that right but denies that it has been  
infringed. Accordingly, it is not necessary for me to address fishing for FSC  
purposes in this part of my Reasons.  
VII.  
A.  
ABORIGINAL TITLE  
Introduction  
[491] The plaintiffs’ claim to aboriginal title is a novel one that has not previously  
been considered by a Canadian court. In essence, they claim submerged lands  
bordered by the foreshore throughout the territory of each plaintiff and extending  
100 nautical miles into the ocean; they do not claim the upland areas of their  
territories in this action. The plaintiffs restrict their title claim to one economic  
component of that title – the fishery – and acknowledge that component to be  
subject to the infringement and justification analyses.  
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[492] Canada counters that the plaintiffs’ claim to aboriginal title to submerged  
lands is not legally tenable and should be dismissed.  
B.  
Description of Plaintiffs’ Claim  
[493] The plaintiffs claim that from a time before contact to the present, they have  
owned, used and occupied territories within an area on the WCVI extending from  
Cape Cook on Brooks Peninsula southeast along the height of land on Vancouver  
Island to Tsusiat Point and 100 nautical miles seaward from the baseline as defined  
in the Oceans Act, S.C. 1996, c. 31. They claim that each Nuu-chah-nulth Nation  
has owned, used and occupied a specific territory within this area, as shown on  
Schedule A to these Reasons.  
[494] The plaintiffs further claim that at or before sovereignty, each Nuu-chah-nulth  
Nation owned and occupied, to the exclusion of all others, the rivers, foreshore  
areas and bodies of water below the low water mark and extending 100 nautical  
miles seaward within that Nation’s territory. Since sovereignty, they claim, each  
Nuu-chah-nulth Nation has held aboriginal title to its fishing territory or, in the  
alternative, to portions thereof. The plaintiffs additionally claim that each Nuu-chah-  
nulth band or, in the alternative, Nuu-chah-nulth Nation, has, as a component of that  
aboriginal title, the right to harvest all species of fish, shellfish and aquatic plants  
from its fishing territory for any purpose, including consumption and trade.  
[495] The plaintiffs do not seek declarations of title to the whole of that territory in  
these proceedings. Rather, each Nuu-chah-nulth Nation’s title claim is limited to the  
fishing territories within its territory, which, as noted, comprise the rivers, foreshore  
areas (not the upland), and bodies of water below the low water mark and extending  
100 nautical miles seaward. With respect to rivers, each Nuu-chah-nulth Nation  
claims a specific “test case” river or rivers within its territory. Further, the plaintiffs  
seek only that the Court define the content of their aboriginal title to the extent  
necessary to establish rights incident to that aboriginal title to harvest fisheries  
resources within their fishing territories for any purpose, including commercial  
purposes.  
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[496] The plaintiffs advance identical claims to aboriginal title in the alternative with  
respect to the Nuu-chah-nulth Nation.  
[497] The plaintiffs seek, inter alia, the following declaration:  
That each of the Nuu-chah-nulth Bands or, in the alternative, each of the  
Nuu-chah-nulth Nations, hold aboriginal title to the Fishing Territories, or  
portions thereof, and the right or rights, as a component of that aboriginal  
title, to harvest for any purpose, including any or all of those purposes  
referred to in paragraph (a) and sell all species of Fisheries Resources or, in  
the alternative, one or more of those species of Fisheries Resources,  
harvested from territories to which they have aboriginal title.  
C.  
Duplication of Claim to Aboriginal Rights  
[498] A similar parallel claim of aboriginal rights and title was advanced in Adams.  
The appellant had been fishing for perch in the marshes of a portion of Lake  
St. Francis, and was charged with fishing without a licence. He argued in defence  
that he had been fishing pursuant to an aboriginal right existing either because of the  
Mohawks’ aboriginal title to the fishing area, which included Lake St. Francis, or  
because of a free-standing aboriginal right to fish in the area. After concluding that  
the appellant had proven an aboriginal right to fish on this latter basis, Lamer C.J.  
wrote at para. 34:  
Given that this is so, it will be unnecessary to address the appellant’s  
arguments that the Mohawks have aboriginal title to the lands in the fishing  
area that gives rise to an incidental right to fish there. The appellant himself  
rests his claim primarily on the existence of the free-standing aboriginal right  
to fish in Lake St. Francis; since I accept this argument it is unnecessary to  
consider any subsidiary arguments the appellant makes.  
[499] In my view, this reasoning is applicable to this case, though on a slightly  
different basis. The primary reason for the plaintiffs to advance their title claim in the  
restricted manner they have is to support the incidental right to fish. Insofar as I  
have found that the plaintiffs have proven an aboriginal right to fish within their  
territories, it could be said, as in Adams, that it is unnecessary for me to consider  
this secondary argument. Counsel for the plaintiffs acknowledged as much in his  
oral submissions on this issue. He submitted that in the event I found that the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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plaintiffs had a full-scale aboriginal right to fish commercially, it would not be  
necessary for me to address the title claim. He further submitted, however, that if I  
found an aboriginal fishing right that was lower down the spectrum, it would be  
necessary for me to address the title claim, since fishing rights parasitic on  
aboriginal title might be broader and thus lead to different infringement and  
justification analyses. This broader argument was not addressed in Adams.  
[500] As I have characterized the plaintiffs’ aboriginal rights as the rights to fish and  
to sell fish, it could be argued that it is necessary for me to deal with the submission  
that the plaintiffs have a different and broader fishing right parasitic on their  
aboriginal title. This is so because “parasitic rights” that manifest themselves as an  
economic component to title do not depend for their existence on proof that those  
rights are the modern-day equivalent of an ancestral practice. As Lamer C.J.  
explained at para. 111 of Delgamuukw:  
Aboriginal title is a right in land and, as such, is more than the right to engage  
in specific activities which may be themselves aboriginal rights. Rather, it  
confers the right to use land for a variety of activities, not all of which need be  
aspects of practices, customs and traditions which are integral to the  
distinctive cultures of aboriginal societies. Those activities do not constitute  
the right per se; rather, they are parasitic on the underlying title.  
[501] Ultimately, it is not necessary for me to decide this issue since, in my view,  
the infringement and justification analyses as applied to title would not yield a  
different result than when applied to the plaintiffs’ aboriginal rights in the  
circumstances of this case. As I discuss in detail below, I find that Canada’s fishery  
regime does prima facie infringe the plaintiffs’ aboriginal fishing rights. If these rights  
are infringed by the fisheries regime, it would only stand to reason that any broader,  
unconstrained commercial fishing right or activities parasitic on aboriginal title would  
similarly be infringed.  
[502] With respect to the justification analysis, factors upon which Canada could  
rely in seeking to justify the infringement of a narrowly circumscribed fishing right –  
conservation needs and adherence to international treaties to name only two –  
would apply equally in justifying an infringement of broader fishing rights.  
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Page 164  
Even assuming that a claim to submerged lands is legally tenable, of which I have  
some doubt, it is not necessary that I decide the plaintiffs’ aboriginal title claim, and I  
decline to do so.  
VIII. INFRINGEMENT  
A.  
Introduction  
[503] Infringement is the third step in the Sparrow framework for analyzing an  
aboriginal rights claim. Where a court has determined that claimants have proven  
an aboriginal right that has not been extinguished, it goes on to consider whether the  
effect of government action is to unreasonably interfere with the exercise of that  
right.  
[504] In the present case, there is considerable overlap between the evidence  
relevant to the questions of both infringement and justification. I have found it  
convenient to recount much of the evidence in this section, that is, infringement, with  
references to this evidence, where applicable, when I discuss justification. It is not  
always easy to discern the line between issues that are relevant to infringement and  
those to justification. At the risk of over-simplifying the difference, I consider  
infringement to be largely focussed on the plaintiffs, their participation in the fishery  
and the effects on them of Canada’s fishery regime. The justification analysis, on  
the other hand, is focussed more on the steps taken by Canada, both legislative and  
operational, that it says justify its infringement. Below I have found that I could not  
fully determine Canada’s justification defence on the evidence before me.  
Consequently there is also justification evidence not commented upon in these  
Reasons.  
B.  
Summary of Plaintiffs’ Position on Infringement  
[505] The plaintiffs assert that Canada’s fishing regime infringes their aboriginal  
rights both at the legislative and the policy/operational levels. With respect to the  
former, they submit that the legislative scheme, comprising the Fisheries Act and its  
regulations, imposes a complete prohibition against the activity that forms the basis  
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Page 165  
of their aboriginal rights, and imparts to the Minister absolute discretion to issue  
licences with respect to that activity. Citing the Supreme Court of Canada’s  
decisions in Adams and Marshall, they say that the fact that the Fisheries Act  
prohibits the exercise of their aboriginal rights subject to the Minister’s discretion  
constitutes an infringement.  
[506] The plaintiffs additionally claim that their rights have been infringed by the  
policy and operational measures implemented by the DFO since the 1960s. They  
say that, as a whole, these measures have entrenched a large scale, capital-  
intensive industrial fishery on the Pacific coast with the effect that the Nuu-chah-  
nulth have fallen out of the fishery and cannot get back in. The plaintiffs submit, for  
instance, that the DFO’s management measures fail to make provision for  
community-based fisheries that can facilitate widespread participation of Nuu-chah-  
nulth members with a lower capital investment than what is required in the DFO’s  
current management regime. Instead, they say, DFO policies and operational  
restrictions impose undue hardship on the plaintiffs and deny them their preferred  
means of exercising their rights, if they can be exercised at all.  
[507] The plaintiffs do not challenge the DFO’s overall management of the fishery  
per se, nor do they suggest that they have unlimited rights to the fishery. Their  
complaint is that in implementing its management scheme, Canada has failed to  
reserve them sufficient fishing opportunities to accommodate their aboriginal rights,  
and has failed to permit them to fish using their preferred means.  
[508] The plaintiffs have particularized the statutory, regulatory, policy and  
operational infringements in their response to Canada’s demand for further and  
better particulars dated October 14, 2008. The pertinent parts of that response to  
Canada’s demand for particulars are reproduced as Appendix B to these Reasons.  
C.  
Summary of Canada’s Position on Infringement  
[509] Canada denies that its fisheries legislation, regulations, or policies infringe the  
plaintiffs’ aboriginal rights, and submits that none of the plaintiffs’ allegations of  
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Page 166  
infringement are established on the evidence. Canada says that the legislation,  
regulations and policies under challenge are reasonable constituent parts of a larger  
regulatory scheme premised on conservation, the cumulative effect of which is to  
facilitate the plaintiffs’ asserted rights. In fact, Canada says, the evidence ably  
demonstrates that the plaintiffs’ fishing opportunities have increased as a result of  
the DFO policies. In the result, the plaintiffs have failed to discharge the burden of  
proof to establish any infringements.  
[510] Canada contends that its regulatory scheme as a whole accommodates the  
plaintiffs’ collective aboriginal rights and that its many special programs protect and  
enhance aboriginal participation in economic fisheries. Canada describes its  
policies as follows (at para. 2057 of its written submission):  
DFO’s Aboriginal programs are designed to strengthen the relationship  
between the Federal Government and Aboriginal groups and communities by  
supporting integration in the commercial fishery and the development of  
scientific, technical and administrative capacity of Aboriginal groups. In  
summary, DFO policies:  
1)  
provide Aboriginal groups with access to fisheries resources to  
address asserted rights and socio-economic aspirations:  
a)  
through the Licence Retirement Program, ATP [Allocation  
Transfer Program], ARROM [Aboriginal Aquatic Resource and  
Oceans Management] Access, and PICFI [Pacific Integrated  
Commercial Fisheries Initiative] programs which all facilitate the  
voluntary retirement of commercial licences and issuance of  
communal licences for commercial fisheries to Aboriginal groups  
b)  
through the Somass Economic Fishery, ESSR [Excess  
Salmon to Spawning Requirements] fishery;  
c) through the operation of the FSC fishery which has priority  
after conservation over commercial and recreational fishing; and  
d)  
by permitting, in some circumstances, fishing for FSC and  
commercial purposes at the same time (sometimes referred to as  
‘dual fishing’ or ‘combination fishing’)  
2)  
provide for the negotiation of annual, and in some cases multi-year,  
agreements under AFS [Aboriginal Fishing Strategy] and other programs  
which, amongst other things, can set out fishing arrangement, co-  
management arrangements, fisheries projects, and funding arrangements.  
3)  
provide for increased Aboriginal participation in fisheries co-  
management by:  
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Page 167  
e)  
annual multi-year AAROM [Aboriginal Aquatic Resource and  
Oceans Management] funding which brings the NTC together to build  
fisheries capacity to participate in the decision-making process; and  
f)  
the West Coast of Vancouver Island Aquatic Management  
Board, which brings together all sectors of the west coast of  
Vancouver Island fisheries in a co-management model. The sectors  
which participate are Aboriginal groups, commercial fishers,  
recreational fishers, municipalities, environmental groups and DFO.  
D.  
Legal Principles  
[511] Aboriginal rights recognized and affirmed by s. 35(1) are not absolute and  
may be infringed, both by provincial and federal governments. However, s. 35(1)  
requires that those infringements satisfy the test of justification. The analytical  
framework for considering both infringement and justification was set out in Sparrow,  
and refined in Gladstone.  
[512] The test for infringement asks whether the impugned legislation has the effect  
of interfering with an existing aboriginal right. If it does, it constitutes a prima facie  
infringement of s. 35(1). The onus of demonstrating a prima facie infringement rests  
with the claimant.  
[513] Questions that guide the analysis as to whether impugned legislation has the  
effect of interfering with an existing aboriginal right include:  
a.  
b.  
c.  
Is the limitation unreasonable?  
Does the limitation impose undue hardship?  
Does the regulation deny to the holders of the right their preferred  
means of exercising that right?  
[514] The fact that this test appears to set a substantially higher threshold than  
“prima facie” suggests, was subsequently commented upon in Gladstone. At  
para. 43, Lamer C.J., for the majority, clarified what was necessary to establish a  
prima facie infringement. He also made clear that while the questions assist in the  
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Page 168  
analysis, they are not required to be answered in the affirmative in order to prove an  
infringement:  
The Sparrow test for infringement might seem, at first glance, to be internally  
contradictory. On the one hand, the test states that the appellants need  
simply show that there has been a prima facie interference with their rights in  
order to demonstrate that those rights have been infringed, suggesting  
thereby that any meaningful diminution of the appellants’ rights will constitute  
an infringement for the purpose of this analysis. On the other hand, the  
questions the test directs courts to answer in determining whether an  
infringement has taken place incorporate ideas such as unreasonableness  
and “undue” hardship, ideas which suggest that something more than  
meaningful diminution is required to demonstrate infringement. This internal  
contradiction is, however, more apparent than real. The questions asked by  
the Court in Sparrow do not define the concept of prima facie infringement;  
they only point to factors which will indicate that such an infringement has  
taken place. Simply because one of those questions is answered in the  
negative will not prohibit a finding by a court that a prima facie infringement  
has taken place; it will just be one factor for a court to consider in its  
determination of whether there has been a prima facie infringement.  
[515] In Sparrow, Dickson C.J. commented as follows at p. 1112 with respect to the  
facts of the appeal before him:  
... In relation to the facts of this appeal, the regulation would be found to be a  
prima facie interference if it were found to be an adverse restriction on the  
Musqueam exercise of their right to fish for food. We wish to note here that  
the issue does not merely require looking at whether the fish catch has been  
reduced below that needed for the reasonable food and ceremonial needs of  
the Musqueam Indians. Rather the test involves asking whether either the  
purpose or the effect of the restriction on net length unnecessarily infringes  
the interests protected by the fishing right. If, for example, the Musqueam  
were forced to spend undue time and money per fish caught or if the net  
length restriction resulted in a hardship to the Musqueam in catching fish,  
then the first branch of the s. 35(1) analysis would be met.  
[516] In applying the Sparrow test for infringement, the Court must take into  
account any factual variations in the particular case at hand. One such variation that  
existed between Sparrow and Gladstone was the scope of the alleged infringement.  
Whereas in Sparrow only a single net length restriction was challenged, the  
government’s entire regulatory regime with respect to the herring spawn-on-kelp  
fishery was impugned in Gladstone. Where the scope of the challenge is broad, the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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questions that form the Sparrow test must be applied to all aspects of the regulatory  
scheme at issue.  
[517] Thus in Gladstone, for instance, in analyzing the government’s scheme for  
regulating the herring spawn-on-kelp fishery, the Court divided the scheme into four  
constituent parts: (1) the government determines the amount of herring stock that  
will be harvested in a given year; (2) the government allots the herring stock to the  
different herring fisheries (i.e., roe-herring, herring spawn-on-kelp, and other herring  
fisheries); (3) the government allots the herring spawn-on-kelp fishery to various  
user groups; and (4) the government allots the commercial herring spawn-on-kelp  
licences.  
[518] Although the components of the regulatory scheme must each be analyzed in  
accordance with the Sparrow test, it is the cumulative effect of the scheme on the  
exercise of the aboriginal right that is significant for the purposes of the infringement  
analysis. As Lamer C.J. explained in Gladstone, at para. 52:  
Because each of these constituent parts has a different objective, and each  
involves a different pattern of government action, at the stage of justification it  
will be necessary to consider them separately; however, at the infringement  
stage the government scheme can be considered as a whole. The reason for  
this is that at the infringement stage it is the cumulative effect on the  
appellants’ rights from the operation of the regulatory scheme that the court is  
concerned with. The cumulative effect of the regulatory scheme on the  
appellants’ rights is, simply, that the total amount of herring spawn on kelp  
that can be harvested by the Heiltsuk Band for commercial purposes is  
limited. Thus, in order to demonstrate that there has been a prima facie  
infringement of their rights, the appellants must simply demonstrate that  
limiting the amount of herring spawn on kelp that they can harvest for  
commercial purposes constitutes, on the basis of the test laid out in Sparrow,  
a prima facie interference with their aboriginal rights.  
[519] Although Lamer C.J. reviewed the regulatory scheme as it pertained to the  
herring spawn-on-kelp fishery in considerable detail, his analysis of infringement was  
fairly brief. At para. 53, he wrote:  
In light of the questions posed by the Court in Sparrow, it seems clear that  
the appellants have discharged their burden of demonstrating a prima facie  
interference with their aboriginal rights. Prior to the arrival of Europeans in  
North America, the Heiltsuk could harvest herring spawn on kelp to the extent  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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they themselves desired, subject only to such limitations as were imposed by  
any difficulties in transportation, preservation and resource availability, as  
well as those limitations that they thought advisable to impose for the  
purposes of conservation; subsequent to the enactment of the regulatory  
scheme described above the Heiltsuk can harvest herring spawn on kelp for  
commercial purposes only to the limited extent allowed by the government.  
To use the language of Cory J. in R. v. Nikal, supra, at para. 104, the  
government’s regulatory scheme “clearly impinge[s]” upon the rights of the  
appellant and, as such, must be held to constitute a prima facie infringement  
of those rights.  
[520] In R. v. Nikal, [1996] 1 S.C.R. 1013, Cory J., on behalf of a majority of the  
Court, rejected the proposition that once an aboriginal right has been established,  
anything which affects or interferes with the exercise of that right constitutes a prima  
facie infringement. Thus, he held, the mere requirement of a licence in order to fish,  
as distinct from the conditions of that licence, will seldom constitute a prima facie  
infringement of the s. 35 aboriginal right to fish. As Cory J. explained, any system of  
control of the fishery must commence with a licensing scheme, and it is through the  
issuing of licences to the various types of users that the government will be able to  
manage the resource. Nevertheless, Cory J. continued, the government will be  
required to justify the conditions of a licence that on their face infringe the s. 35 right.  
As he explained, at paras. 103-104:  
Although licensing by itself will not as a rule constitute a prima facie  
infringement of the aboriginal right to fish, the government will be required to  
justify those conditions of a licence which on their face infringe the s. 35 right  
to fish. The 1986 licence at issue in this case contains several conditions.  
Some of these printed on the licence itself are mandatory. Others are  
completed by the issuing fishery officer and are discretionary. Of the  
mandatory conditions printed on the face of the licence, some are clearly  
prima facie infringements of the aboriginal right of the appellant as properly  
found by the courts below. The infringing conditions are:  
(i)  
(ii)  
the restriction of fishing to fishing for food only;  
notes 4 and 5 of the licence, which provide:  
4.  
5.  
Fishing Time Subject to Change by Public Notice.  
Indian Food Fishing before July 1st and after September 30th  
must be licenced by the Provincial Fish & Wildlife  
Conservation Officer.  
(iii)  
(iv)  
the restriction to fishing for the fisher and his family only;  
the restriction to fishing for salmon only.  
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These conditions are prima facie infringements of the appellant’s aboriginal  
rights, which were specifically and correctly found to include:  
(i)  
the right to determine who within the band will be the recipients of the  
fish for ultimate consumption;  
(ii)  
the right to select the purpose for which the fish will be used, i.e. food,  
ceremonial, or religious purposes;  
(iii)  
(iv)  
the right to fish for steelhead;  
the right to choose the period of time to fish in the river.  
Since those conditions of the licence set out above clearly impinge upon  
these aspects of the appellant’s s. 35 rights, they must constitute prima facie  
infringements.  
[521] Cory J. then went on to consider justification, concluding that the government  
had failed to justify those conditions found to infringe the appellant’s aboriginal  
rights.  
E.  
Background to Regulation of the Fishery  
[522] I begin my discussion of the infringements alleged with an historical review of  
the main developments in the regulation of Canada’s fishery. Before doing so,  
however, I wish to make a few introductory comments.  
[523] Canada’s regulation of its fishery comprises a vast and complex web of  
regulations, programs, and policies. Over the years, Canada has orchestrated  
innumerable studies, task forces, commissions, round tables, and treaties, all in an  
effort to fairly regulate fishing and conserve the fishery for future generations. To  
state the obvious, fish cannot be seen, and thus the assessment of the health or  
abundance of stocks is a difficult scientific task. I cannot in these Reasons do more  
than summarize the primary components of the regulatory regime and the main  
features of the regulatory history, focusing on those aspects that I consider to have  
greatest relevance to this case. (My use of “regulatory regime” is intended as a  
collective term to incorporate the entire statutory, regulatory, and policy based  
regime of Canada’s fisheries regulation.) In certain of the authorities, such as  
Sparrow and Nikal, the Court’s infringement analysis was fairly limited in that it was  
only necessary to consider a single regulation or the conditions that attached to a  
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particular licence. That is not the situation here, as the plaintiffs have put in issue  
the entirety of the regulatory regime as it impacts their aboriginal rights.  
F.  
Historical Overview of Fishery Regulation  
[524] The broad outlines of the history of the west coast fishery were provided in a  
report by one of Canada’s fishery experts, Dr. Peter Pearse. He was not cross-  
examined on his report, and the historical overview he provides is not in dispute in  
this litigation. I have borrowed liberally from Dr. Pearse’s report in the following  
historical overview.  
[525] Prior to the rise of the modern fishing industry on the Pacific coast in the 19th  
century, the generally accepted view was that ocean fisheries were inexhaustible.  
However, as catches grew with expanding fleets and improved fishing technology,  
the effect of fishing pressure on the most accessible and valuable stocks became  
apparent. By the late 19th century, the most vulnerable stocks – which on Canada’s  
Pacific coast included some species of whale, and salmon – showed convincing  
evidence of overharvesting. By the 1890s, fisheries officials were calling for a limit  
on the number of salmon fishing boats on the Fraser River. The sturgeon and  
pilchard fisheries expanded and then collapsed. Soon, the limited capacity of fish  
stocks to yield sustainable harvests and the threat of overfishing and depletion were  
widely acknowledged by scientists and governments in Canada and other fishing  
nations.  
[526] Recognizing that some control of fishing was necessary to ensure sustainable  
catches, many governments launched concerted regulatory efforts in the first half of  
the 20th century. The Government of Canada progressively introduced closed  
fishing seasons, closed areas, and a myriad of restrictions on boats and fishing gear  
in an effort to constrain catches to levels within the sustainable productive capacity  
of the stocks. However, as the expansion of fishing fleets and fishing pressures  
continued, the Government’s struggle to limit catches to sustainable levels met with  
mixed success. By the end of World War II, it had become apparent that the world’s  
most valuable stocks were fully exploited or approaching full exploitation, and many  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 173  
were being depleted. In the words of Dr. Pearse, “Fisheries were condemned to a  
kind of dismal Maltheusian equilibrium, evidenced around the world in over-  
expanded fleets of over-equipped vessels, over-exploited stocks, and low incomes  
of vessel owners and fishers.” Overfishing and dissipation of economic returns  
became a worldwide phenomenon in the latter half of the 20th century.  
[527] The open fishery created an incentive for all individual fishers to catch as  
many fish as possible before the fish were caught by others. Three related  
economic consequences of open access have weighed heavily on Pacific fisheries.  
One was distortion of the fishing technology used to find, catch and transport fish.  
Vessel owners were compelled, in their race with competitors, to invest in increasing  
the size and speed of their vessels to reduce running time and enable them to work  
further offshore and in rough seas. If the catch was already being fully harvested,  
such competitive investment simply added to the costs of fishing and lowered the net  
returns.  
[528] Another effect was price instability. An increase in the price of fish, or a  
technological development that lowered the cost of fishing, would set off and  
accommodate further expansion of the fishing fleet even if there could be no  
increase in the catch. Reduced prices for fish forced of the market and financial  
failures.  
[529] Finally, over-expansion of fishing fleets complicated the task of managing the  
fishery. For example, Pacific halibut can be caught almost year round but because  
the fleet over-expanded, the fishing season had to be shortened to protect the  
stocks from overfishing. As the fleet continued to grow, the season was reduced  
yearly until, by 1990, halibut fishers were allowed to fish just 10 days per year.  
Landing the whole year’s catch in such a short time meant that most of it had to be  
frozen, significantly lowering its market value and increasing processing costs.  
[530] The over-expansion of fishing fleets was particularly conspicuous in Canada’s  
Pacific fisheries because, ironically, the major fisheries in the region are capable of  
yielding unusually high returns. Salmon, halibut and roe-herring, in particular, are  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 174  
highly valued and potentially highly profitable. However, the perverse process of  
profits attracting redundant fishing capacity until the profits are dissipated in higher  
costs led the fishing fleets in these fisheries to over-expand to many times the  
fishing capacity needed to harvest the available catch, before earnings were  
sufficiently reduced to attract no more entrants.  
[531] The DFO endeavoured to reduce fishing pressures through restrictions on  
fishing times, areas and gear, as well as on vessel capacity. To alleviate the  
industry’s poor economic performance and low incomes, the federal government  
also introduced a wide variety of subsidies and programs of assistance to fishers,  
ranging from support for vessel construction to easier access to unemployment  
insurance. Whatever the desirable social effects of these measures, by supporting  
fishers’ income, these measures aggravated the problem of overcrowded fisheries.  
[532] A major innovation in fishing controls was introduced in the late 1960s. By  
that time, the fishing fleet in the Pacific fisheries had expanded to such an extent  
that the established practices of shortening seasons and restricting fishing gear were  
increasingly recognized as inadequate. To prevent further decreases in fishing  
income, the DFO licensed existing vessels and declared that no additional licences  
would be issued. This limitation of licensing was referred to as the “Davis Plan” after  
the then Minister of Fisheries. Initially, the licences authorized commercial fishing of  
all species of fish. However, since each species is able to support its own harvest  
with differing levels of capacity, each needed its own limited licensing scheme. One  
after another, a limited number of special licences were introduced for each of the  
major species or group of species, usually by “grandfathering” the established  
fishers in the fishery, who ranged from a few dozen in the case of sablefish and  
geoduck, to thousands for salmon and roe-herring. Because the rights to fish were  
now limited, these rights (or licences) began to take on a market value.  
[533] That fishing rights were now valuable assets was welcomed by established  
fishers who were grandfathered into the new regime. For those who wanted to enter  
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the fishery, it posed a new barrier because they would now have to buy a licence  
from someone else at market value.  
[534] Examples of current value of licences for various species are:  
-
-
a salmon troll licence for the WCVI costs approximately $145,000;  
a halibut licence with 10,000 pounds of quota costs approximately  
$343,000;  
-
-
a crab licence costs approximately $480,000; and  
geoduck licences are valued at $2,500,000 but since the geoduck  
fishery is so lucrative, licence holders do not sell them.  
[535] Thus, the government introduced, if only incidentally through the regulatory  
process, fishing rights that had some of the essential characteristics of property.  
Licences were now valuable rights of access to fisheries. The licensees’ rights were  
exclusive. They were also transferable; while technically not so, the Minister  
adopted a policy of accommodating private transfers by responding to a licensee’s  
request to relinquish his licence and have a new one issued to someone he  
designated. Licensees had some security because, although licences usually had  
terms of only one year, the policy was to issue new licences to those who held them  
the previous year. Licensees were able to enjoy the economic benefit of exercising  
the licence.  
[536] Licence limitation proved to be less effective than hoped. Every owner of a  
licensed vessel still had a strong incentive to increase its fishing power to obtain a  
larger share of the catch. Although the number of vessels could no longer be  
increased, owners replaced their vessels with larger, more powerful ones and fitted  
them with more advanced equipment. In an effort to forestall this continuing  
wasteful expansion of fishing power, the DFO added still more restrictions, this time  
on the size and capacity of vessels, and on fishing gear.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[537] A variety of other measures were progressively taken to reduce the excessive  
capacity of the fleets, and to facilitate management of the fishery. This was  
particularly so in the salmon fishery, the largest fishery on the Pacific coast. The  
federal government launched a series of “buy-back” programs through which it spent  
several hundred million dollars to purchase and cancel licences (and sometimes  
vessels with licences) in order to reduce the fleet.  
[538] Area licensing was introduced in the salmon and roe-herring fisheries in order  
to avoid the convergence of the whole coastal fleet in areas opened for fishing.  
Licence holders were required to select generally one or two areas of the coast to  
which their licences were designated. They were also permitted to purchase  
licences from other licence holders for other areas. This had the beneficial effect of  
reducing the fleet by eliminating the sellers’ vessels.  
[539] To further manage the fishery, the DFO separately licensed vessels by the  
type of gear they used, known as “gear licensing”. This meant that roe-herring  
fishers’ licences specified that the holders were authorized to use either gillnet or  
seine gear but not both. Salmon licensees were authorized to use only one of  
gillnet, seine or troll gear. This prevented fishers from switching or combining gear.  
[540] Despite the foregoing, fishing capacity continued to expand as a result of the  
flexibility of fishing technology, the ingenuity of fishers and ship architects, and the  
practical impossibility of restricting all dimensions of fishing power.  
[541] In 1991, individual quotas were introduced (in a restricted form) for the first  
time in a major Canadian fishery, the Pacific halibut fishery. The resulting  
improvement in the fishery was dramatic. The enormous overcapacity of the fleet  
was soon eliminated by the fishers themselves. With the security of a defined share  
of the catch, and the ability to adjust it through purchase and sale of quota, fishers  
restructured their operations to achieve economies of scale and to harvest their  
quota as efficiently as possible. Alternatively, they sold their quota or part of it to  
others. Within 10 years, the number of vessels was reduced by half without  
governmental help and with a corresponding reduction in the cost of fishing.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 177  
[542] Freed from the race for fish during brief fishing seasons, fishers could now  
fish for most of the year at times when markets were most favourable. They could  
also take time to clean and prepare their fish for the best prices. Halibut fishers, for  
instance, were soon receiving substantially higher prices for their product. This  
increased revenue from the catch, together with the lower cost resulting from the  
rationalized fleet and produced a much more profitable fishery for vessel owners and  
crews. As a consequence, the market value of the rights to fish halibut – now  
including quota entitlements as well as licences – rose substantially. Today, halibut  
fishers and others who operate under individual quotas take responsibility (and pay)  
for detailed monitoring of catches, biological sampling, surveys, administration of  
quota transfers and other management functions.  
[543] During the 1990s and early 2000s, some form of individual quota was  
introduced in all the major Pacific fisheries except the salmon fishery.  
G.  
Statutory and Regulatory Authority to Govern the Fishery  
[544] With this narrative background in mind, I now set out the statutory and  
regulatory basis for Canada’s management of the Pacific coast fishery. As will be  
seen, the Minister is granted wide discretion as to the manner in which she regulates  
the fishery pursuant to these statutory instruments. It is primarily through conditions  
of license and policy that the DFO effects its governance of the fishery. The  
plaintiffs contend that it is the totality of this regulatory regime that infringes their  
aboriginal rights.  
[545] Canada exercises exclusive legislative jurisdiction over “Sea Coast and  
Inland Fisheries” pursuant to s. 91(12) of the Constitution Act, 1867. The primary  
legislation under which Parliament has exercised this jurisdiction is the Fisheries Act.  
Broadly speaking, the Minister is granted statutory powers under the Fisheries Act,  
and these powers are further defined in regulations enacted by the Governor-in-  
Council. The regulations of most relevance to the present case are the Fishery  
(General) Regulations, S.O.R./93-53; the Pacific Fishery Regulations, 1993,  
S.O.R./93-54; the Pacific Fishery Management Area Regulations, 2007,  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 178  
S.O.R./2007-77; and the Aboriginal Communal Fishing Licences Regulations,  
S.O.R./93-332.  
[546] The Fisheries Act and regulations impose general prohibitions against fishing  
and selling fish unless authorized by the appropriate licence. As a result, it is illegal  
to fish or to sell fish without a licence issued by the DFO. This applies to all  
aboriginal food fishing and all commercial fishing.  
[547] Section 26 of the Pacific Fishery Regulations, 1993, creates a general  
prohibition against persons fishing without a licence:  
26. (1) Subject to subsection (2), no person shall fish except under the  
authority of a licence issued under these Regulations, the Fishery (General)  
Regulations or the Aboriginal Communal Fishing Licences Regulations.  
(2)  
Subsection (1) does not apply to a person who is registered and who  
is engaged in commercial fishing for a species of fish from a registered vessel  
that is authorized by a commercial fishing licence to be used in fishing for that  
species.  
[548] The Fishery (General) Regulations impose a general prohibition against  
selling fish without a licence that specifically authorizes sale, trade or barter in s. 35:  
35. (2) Subject to subsection (3), no person shall buy, sell, trade, barter or  
offer to buy, sell, trade or barter any fish unless it was caught and retained  
under the authority of a licence issued for the purpose of commercial fishing,  
a licence issued under Part VII, a licence issued under the Aboriginal  
Communal Fishing Licences Regulations in which the Minister has authorized  
the sale of fish or an Excess Salmon to Spawning Requirement Licence  
issued under the Pacific Fishery Regulations, 1993.  
[549] Licences may be either personal (sometimes referred to as party-based) or  
vessel-based. In the case of party-based licences, the licence holder is entitled to  
fish the licence from any vessel, although the individual is almost always required to  
designate a specific vessel. The party may be a person, corporation or a Band. In  
the case of vessel-based licences, the specific vessel that is associated with the  
licence must be used for the fishery.  
[550] Under the Fisheries Act, the Minister has absolute discretion to issue  
licences. Section 7(1) of the Act provides:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 179  
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion,  
wherever the exclusive right of fishing does not already exist by law, issue or  
authorize to be issued leases and licences for fisheries or fishing, wherever  
situated or carried on.  
[551] While the authority to issue licences lies within the absolute discretion of the  
Minister, Parliament has conferred upon the Governor-in-Council broad authority to  
enact regulations concerning various aspects of fisheries. Section 43 of the  
Fisheries Act reads, in part:  
43.  
The Governor in Council may make regulations for carrying out the  
purposes and provisions of this Act and in particular, but without restricting  
the generality of the foregoing, may make regulations  
(a)  
for the proper management and control of the sea-coast and inland  
fisheries;  
(b)  
(c)  
respecting the conservation and protection of fish;  
respecting the catching, loading, landing, handling, transporting,  
possession and disposal of fish;  
(d)  
(e)  
…
(f)  
respecting the operation of fishing vessels;  
respecting the use of fishing gear and equipment;  
respecting the issue, suspension and cancellation of licences and  
leases;  
(g)  
…
respecting the terms and conditions under which a licence and lease  
may be issued;  
[552] Thus, the Minister’s discretion under s. 7 is governed by regulations made by  
the Governor-in-Council under s. 43. Section 22(1) of the Fishery (General)  
Regulations, for instance, gives the Minister authority to impose any licence  
conditions that are not inconsistent with the regulation, and sets out a wide range of  
factors that may be specified as conditions:  
22. (1) For the proper management and control of fisheries and the  
conservation and protection of fish, the Minister may specify in a licence any  
condition that is not inconsistent with these Regulations or any of the  
Regulations listed in subsection 3(4) and in particular, but not restricting the  
generality of the foregoing, may specify conditions respecting any of the  
following matters:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 180  
(a)  
the species of fish and quantities thereof that are permitted to be  
taken or transported;  
…
(c)  
…
(f)  
the waters in which fishing is permitted to be carried out;  
the period during which fishing or transporting fish is permitted to be  
carried out;  
(g)  
(h)  
the vessel that is permitted to be used and the persons who are  
permitted to operate it;  
the type, size and quantity of fishing gear and equipment that is  
permitted to be used and the manner in which it is permitted to be  
used;  
(i)  
the specific location at which fishing gear is permitted to be set;  
...  
(2)  
The Minister may, for the purposes of the conservation and protection  
of fish, amend the conditions of a licence.  
[553] As a result of this legislative scheme and the broad discretion conferred on  
the Minister, most of the policies and management schemes that are at issue in this  
case have not been imposed through legislative instruments such as statutes or  
regulations. Rather, they have been imposed through discretionary decisions of the  
Minister relating to the issuance of licences and the conditions imposed on those  
licences. Such conditions set out the details of how (i.e. gear), where (i.e. areas)  
and how much (i.e. quotas) fishing can be conducted under the licence to which they  
attach. Thus, for example, there are no statutes or regulations that:  
-
-
-
established limited entry in the salmon fishery in 1969;  
expanded limited entry licensing to other species;  
determined the initial allocation of the limited number of licences at the  
outset of limited entry licensing;  
-
-
defined the characteristics of licences, such as transferability; or  
established quota regimes in various fisheries.  
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[554] The DFO’s regulatory scheme also imposes area, time, species, and gear  
restrictions in respect of all Pacific commercial species. Management areas play a  
significant role in how Canada regulates the fishery on a day-to-day basis. Pursuant  
to regulation, the Pacific coast is divided into 48 management areas, each with  
numerous sub-areas. The Fisheries Act establishes a general prohibition against  
fishing during a close time, and the Pacific Fishery Regulations, 1993, fixes the close  
time for the majority of Pacific fisheries at January 1 to December 31. The DFO,  
however, has authority to vary the close times for any of the species or gear types in  
respect of any of the management areas or sub-areas.  
1.  
The Aboriginal Communal Fishing Licences Regulations  
[555] The Aboriginal Communal Fishing Licences Regulations were introduced in  
1993, shortly after the Sparrow decision. They provide that the Minister may issue a  
communal licence to an aboriginal organization to carry on fishing and related  
activities. Section 4 provides that in issuing a communal licence, the Minister may  
designate the persons who may fish under the authority of the licence and the  
vessels that may be used to fish. The Minister has considerable discretion under  
s. 5(1) to impose conditions on licences issued under these Regulations, including  
conditions regarding “the species and quantities of fish that are permitted to be  
taken” (s-s. (a)) and “the disposition of fish caught under the authority of the licence”  
(s-s. (l)).  
[556] Virtually all of the licences issued under the Aboriginal Communal Fishing  
Licences Regulations are FSC Licences, commercial licences issued under the  
Allocation Transfer Program (F Licences) or clam licences issued to aboriginal  
communities (Z2ACL Licences). This is the case with respect to the Nuu-chah-nulth.  
However, the Nuu-chah-nulth have also been issued licences with respect to the  
Somass “pilot sale” salmon fishery conducted by the Tseshaht and the Hupacasath.  
(The Tseshaht and Hupacasath are not plaintiffs in this part of the trial.)  
[557] FSC licences permit First Nations to harvest up to a specified quantity of fish  
for FSC purposes only. Sale, trade or barter of FSC fish is not permitted.  
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Page 182  
[558] F Licences are issued to aboriginal organizations under the Allocation  
Transfer Program. Commercial fishing conducted under an F Licence is subject to  
the same licence conditions as ordinary commercial licences for that fishery.  
Privileges under those licences must be exercised by a single vessel designated by  
the aboriginal organization. In the case of quota fisheries, such as halibut, any  
quota that is allocated under the Allocation Transfer Program can only be fished by a  
vessel that also has a limited entry licence, which means that quotas cannot be  
broken up for use by a small boat fleet as part of a community fishery.  
[559] The commercial clam fishery is the only fishery in which a separate Aboriginal  
Community Licence has been created specifically for issuance to aboriginal  
communities at the outset of a limited licensing regime. On an annual basis,  
aboriginal communities are allocated a quantity of clam licences. The aboriginal  
community, in turn, allocates the Z2ACL Licences to individuals who conduct the  
harvest and sell their catch.  
H.  
Regulation of Specific Fisheries  
[560] Different species of fish are subject to different regulatory regimes. The  
plaintiffs challenge them all. As discussed below, I have concluded that Canada has  
not prima facie infringed the plaintiffs’ aboriginal right to harvest and sell clams. I  
have concluded that Canada has infringed the plaintiffs’ aboriginal right to harvest  
and sell all other species of fish. I also conclude that the plaintiffs’ aboriginal right to  
fish for FSC purposes is recognized by Canada and that Canada’s regulation of the  
fishery does not infringe that aboriginal right. However, it is necessary to outline in  
general terms the manner in which each of the main fisheries is regulated in order to  
provide a factual context for the infringement and justification analyses that follow.  
1.  
Regulation of the salmon fishery  
[561] For the past number of years, Canada has managed the salmon fishery  
through a management plan called the Integrated Fisheries Management Plan  
(“IFMP”). The IFMP pulls together all sectors – that is, First Nations, recreational  
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and commercial fishers, environmental stakeholders, and managers – in order that  
the entire management of the salmon fishery is coordinated. IFMP meetings occur  
in the spring. The management plan is finalized subject to mid-season changes and  
at the end of the season, further consultation occurs.  
[562] The introduction to the 2008/2009 southern British Columbia salmon IFMP  
explains the scope of the management plan as follows:  
INTRODUCTION  
This 2008/2009 Southern B.C. Salmon Integrated Fisheries Management  
Plan (IFMP) covers the period June 1, 2008 to May 31, 2009 for First  
Nations, recreational and commercial fisheries for Pacific salmon in the  
southern areas of B.C. It is designed to describe the approach to fisheries in  
tidal and non-tidal waters from Cape Caution south to the B.C./Washington  
border, including the Fraser River watershed. Pacific salmon species  
covered in the plan include sockeye, coho, pink, chum and chinook salmon.  
This plan describes the management of Pacific salmon fisheries in southern  
B.C. and the factors that influence decision-making.  
This plan incorporates the results of consultations and input from the  
Integrated Harvest Planning Committee (IHPC), south coast First Nations,  
and south coast recreational and commercial advisors.  
Fisheries and Oceans Canada will continue to consult with First Nations,  
recreational, and commercial fish harvesters to further co-ordinate fishing  
activities in 2008. Further consultations will occur as updated forecast  
information becomes available or when observed in-season returns are not  
covered by the decision guidelines.  
[563] Paul Ryall, who has responsibility for the south coast salmon team and  
overall responsibility for the south coast salmon IFMP, described the difficulty in  
managing the salmon fishery owing to factors that include:  
a.  
b.  
c.  
d.  
environmental threats and uncertainty;  
over-harvesting in some cases;  
the migratory nature of salmon;  
the multiplicity of stocks, by which he refers to unique identifiable  
populations of salmon (i.e. originating from different rivers), some of  
which are weak and others strong;  
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e.  
f.  
variability in salmon run timing, meaning that different stocks of salmon  
run at different times of the year;  
biological and environmental changes which impact the productivity of  
stock and hence the accuracy of pre-season predictors;  
g.  
h.  
legal changes, such as the Sparrow decision;  
social changes, by which he refers to the increased focus on  
conservation and the recognition that natural resources are not  
inexhaustible; and  
i.  
technological changes, a reference to the fact that fishing gear  
changes, driven by desire for increased productivity, have led to all  
fishing vessels now having GPS navigational systems, trollers with  
freezers and/or larger holds, drum seiners which can set up 18-20 sets  
per day, the introduction of brine in seine vessels leading to improved  
efficiency and quality of harvested catch, and faster, more mobile  
boats, all of which create more pressure on the resource.  
[564] Wilf Luedke, the Acting Area Director, South Coast, of the DFO, referred in  
his evidence to the 1999 New Pacific Salmon Treaty Agreement, which changed the  
allowable catches from a constant number to one that varies based on the  
abundance of stocks. This resulted in a significant reduction in the allowable catch  
off the WCVI. Furthermore, the inclusion of the offshore recreational fishery in the  
allowable troll fishery catch also impacted the commercial fishery. Larger boats,  
new GPS technology and improved depth sounders gave recreational fishers the  
ability to fish in offshore waters where previously only commercial trollers  
frequented. As a result, the WCVI troll fishery was further reduced.  
[565] Since 1996, salmon licences have been vessel-based, gear type, and area  
designated. Thus, for example, a salmon fisher must choose one of seine, gillnet or  
troll gear, and must designate a particular licence area. Below, I refer to the  
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testimony of the plaintiffs’ fisheries manager, Dr. Don Hall, explaining how this  
licence limitation adversely impacts smaller fishers like the plaintiffs.  
2.  
Regulation of the groundfish fishery – halibut, sablefish, rockfish,  
lingcod and dogfish  
[566] Groundfish is a broad term used to describe fish that dwell at or near the  
bottom of the ocean. Some species of groundfish are halibut, rockfish, lingcod and  
sablefish. There are seven groundfish fisheries for management purposes:  
groundfish troll; halibut by hook and line; sablefish by trap and by hook and line;  
inside rockfish by hook and line; outside rockfish by hook and line; lingcod by hook  
and line; and dogfish by hook and line.  
[567] Within the hook and line gear fishery, the halibut fishery is the most valuable.  
Halibut has the largest landed value for a single species of groundfish. The landed  
value for the halibut total allowable catch (TAC) was approximately $45 million for  
2006. There are 435 licences issued annually but only about 50% of them are  
actually fished. Halibut can only be retained when taken by hook and line or trap  
gear. The halibut season is eight months long, spanning March 10 to November 15.  
Most commercially licensed halibut harvesters average two trips per season to  
harvest their quota; each trip lasts approximately 10 days. Halibut are tagged by a  
department-certified observer at the point of initial off-loading with a unique serial  
number that will identify each fish. These numbers are recorded by the observer  
and the validation record completed for each landing. The objectives of tagging are  
enforcement and to assist in marketing. All halibut landed in Canada, including  
Canadian-caught halibut landed in the United States, are tagged.  
[568] Since 1991, Canada has implemented an individual vessel quota system in  
the halibut fishery whereby each licensed vessel is given a percentage of the area  
catch limit to harvest at any time over an extended season. Most Canadian halibut  
goes to the fresh fish market instead of being sold frozen, as was the case before  
the implementation of individual quotas.  
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[569] In the fishing year April 1, 2006 to March 31, 2007, a new Integrated Fisheries  
Management Plan (IFMP) for all groundfish fisheries replaced the previous five  
separate IFMPs. This step followed several years of extensive consultation with all  
stakeholder groups, including aboriginal groups, and, specifically, the plaintiffs. The  
new IFMP was designed to address by-catch issues, regarding which there were  
significant concerns with the mortality of discarded fish. For example, in 2004 it was  
estimated that 55,862 pounds of rockfish, discarded after having been caught, would  
not have survived. There were also significant concerns that at-sea releases of by-  
catch were resulting in mortality in excess of two or three times the total allowable  
catch for some species such as yellow eye and quillback rockfish. The DFO  
concluded that by-catch was a major problem for the management and sustainability  
of the commercial groundfish fisheries and that reform was necessary. In June  
2003, with the enactment of the Species at Risk Act, R.S.C. 2002, c. 29, many  
species of rockfish were identified as being at risk.  
[570] In response to these concerns, the DFO identified five guiding principles for  
the commercial groundfish sector:  
a.  
b.  
all rockfish catch must be accounted for;  
rockfish catches will be managed according to established rockfish  
management areas;  
c.  
d.  
fishers will be individually accountable for their catches;  
new monitoring standards will be established and implemented to meet  
the above three objectives; and  
e.  
species and stocks of concern will be closely examined and action,  
such as a reduction in total allowable catch and other catch limits, will  
be considered and implemented to be consistent with the  
precautionary approach to management.  
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[571] The reforms focused on 100% at-sea monitoring and 100% dockside  
monitoring, individual vessel accountability for all catch, both retained and released,  
individual vessel quotas and reallocation of these quotas between vessel and  
fisheries to cover by-catch of non-directed species.  
[572] Dr. Groot, Canada’s scientific and technical expert witness, noted that halibut  
stocks are generally in good shape. The Pacific halibut fishery is regulated by the  
International Pacific Halibut Commission, of which both Canada and the United  
States are members. The management goal of the Commission is to develop a  
maximum sustained yield of halibut for the benefit of both countries. Each year the  
Commission checks the progress of the commercial fishery and reviews new  
research in order to prepare regulations for the following season. The authority to  
allocate among user groups is considered the responsibility of the individual  
governments who are members of the Commission. The Commission deals only  
with conservation issues and domestic government regulations cannot conflict with  
or be more liberal than those set by the Commission. The requirement for Canada  
to comply with its international obligations under this treaty is one of the many  
factors that Canada says justifies the manner in which it regulates the groundfish  
fishery, particularly halibut.  
[573] In the 2008 report referred to in the evidence of one of Canada’s fisheries  
witnesses, Diane Trager, A Preliminary Review of the Groundfish Integration Pilot  
Program, Fraser and Associates, August 2008, prepared for the DFO by an outside  
consultant, the authors concluded that the monitoring costs arising from the  
groundfish IFMP pilot program had increased and that those costs were more  
significant for harvesters of small volumes and of lower valued products. The  
authors also concluded that there was no clear evidence that average fishing costs  
had declined or that average fishing revenues had increased to help offset the  
higher monitoring costs.  
[574] The costs of monitoring, which are entirely born by the fisher, are significant.  
For electronic monitoring, the vessel owner must either install monitoring equipment,  
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estimated to cost about $8,000, or else rent it at an estimated cost of $65 per day.  
Alternatively, an on-board observer costs $343 per day.  
[575] At p. 29 of the report, the authors note that “the key social and distributional  
concerns raised with respect to integration include potential adverse impacts on the  
small boat fleet and small producers in the various fisheries; potential adverse  
impacts on present and future First Nations’ access to these fisheries; and, potential  
restrictions on limitations on access to ground fish resources by recreational fishers.”  
[576] The plaintiffs say that the halibut fishery provides a good example of the  
exclusion experienced by the Nuu-chah-nulth as a result of the implementation of  
limited entry regulation. When the halibut fishery became limited entry in 1979, the  
qualifying criteria required a vessel owner to have landed 3,000 pounds of halibut in  
one of either the 1977 or 1978 fishing seasons. Fishers who may have fished  
halibut less intensively in the qualifying years were shut out. The result, after  
appeals were considered, was that 435 vessels qualified for a halibut licence from  
1979 forward. None of those licences were allocated to Nuu-chah-nulth fishers.  
Similarly, when the rockfish fishery went to limited entry, none of the more than 70  
Nuu-chah-nulth fishers who fished rockfish before limited entry qualified for a  
licence. Nuu-chah-nulth witnesses testified about the effect on Nuu-chah-nulth  
fishers of limited entry. Dr. Lucas testified that this exclusion “devastated the Nuu-  
chah-nulth tribes.” Similarly, plaintiff members Benson Nookemis, John Frank and  
Chuck McCarthy were all fishermen who did not qualify for halibut licences despite  
having fished for halibut in the years prior to 1979.  
[577] The plaintiffs also submit that the fixed share and variable share quotas have  
operated to exclude them from the fishery. While the plaintiffs are not opposed to all  
quotas and do not take issue with them per se, they do take issue with the fact that  
the whole commercial TAC has been allocated to others without accommodating  
their rights. Dr. Hall described “the root of the problem” as being “who gets the initial  
award” of the quota. When quotas were introduced to limited entry fisheries, the  
only parties that were considered for the issuance of quotas were those who already  
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had existing licences. The DFO did not have special programs to allocate quota to  
First Nations when quotas were put in place.  
3.  
Regulation of the herring fishery  
[578] Management of the roe-herring fisheries is also through IFMPs. There are  
four separate IFMPs for herring: spawn-on-kelp; roe-herring; food and bait; and  
special uses. Dr. Groot stated in his report that there are five major Pacific herring  
stocks in British Columbia: the WCVI; the Strait of Georgia; the central coast; Prince  
Rupert; and, the Queen Charlottes. In addition, there are many small resident  
stocks that remain near their breeding grounds. It is to these smaller resident stocks  
that the Nuu-chah-nulth refer when they propose pocket herring fisheries. The  
abundance of herring on the WCVI has been declining steadily in recent years.  
[579] Dr. Groot said in his report that estimating abundance of small herring runs in  
areas outside the major assessment regions is difficult. The precautionary principle  
is therefore used for these minor stocks and the exploitation level is set at a  
maximum of 10%. The exploitation level is set at 20% for herring in the major  
assessment regions.  
[580] In cross-examination, DFO witness Greg Thomas was asked about the Nuu-  
chah-nulth Tribal Council’s proposal to create pocket herring fisheries:  
Q:  
Hypothetically you could send one or two or three boats to a particular  
location, limit the amount of harvest and not create a conservation  
concern?  
A:  
On face value you could do that but it’s never that simple. The  
problem is that – because you are going to take so much herring you  
would have to have a very complex management system that would  
be costly to operate whereby you were monitoring abundances in all  
of these small pocket areas and there’s the added problem too in  
estimating how much fish is in these minor locations and then  
providing some sort of in-season target on what you want to take out  
of there. And it’s for that reason, because of the logistics of it and the  
problems with estimating abundances in minor areas, that we  
focussed the fishery on the larger aggregations.  
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[581] Mr. Thomas testified that if management costs were not a concern, it would  
be possible to conduct a pocket herring fishery without creating conservation  
problems. Those management costs would be related to stock assessment and the  
administration associated with managing such a fishery.  
[582] A further complication for the administration of pocket herring fisheries is that  
herring do not always return to spawn in the same inlet. Herring are highly  
migratory, which is, in part, why their abundance is so uncertain and highly variable.  
However, stock assessment techniques for herring have proven relatively accurate,  
though those assessments must be performed annually.  
[583] Owing to conservation concerns, there has been no commercial roe herring  
fishery on the WCVI for three years and no commercial herring spawn-on-kelp  
fishery for the past two or three years.  
4.  
Regulation of intertidal clams and geoducks  
[584] Licence limitation was introduced to the intertidal clam fishery in 1998. At that  
time, 50% of licences were designated aboriginal communal licences to recognize  
historical First Nation representation in the fishery. Aboriginal communal licences  
provide the same access to the fishery as regular commercial clam licences, but are  
held communally. The band chief and council designate the licence holders  
annually.  
[585] When the DFO began licence limitation in the clam fishery, the goal was 50%  
participation by First Nations on the south coast. As the Nuu-chah-nulth bands had  
237 of the total 333 clam licences in Management Area F, this accounted for 70% of  
the licence eligibilities. When Aboriginal communal licences and regular commercial  
clam licences are combined, Nuu-chah-nulth members have approximately 80% of  
the total clam licence eligibilities in Area F. The DFO records indicate that the Nuu-  
chah-nulth Tribal Council bands are eligible for 237 clam licences but that in the  
years 1998 to 2007, only a proportion of those licences have been used, ranging  
from a low of 144 in 2006 to a high of 192 in 2002.  
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[586] I discuss regulation of the clam fishery in more detail later in these Reasons,  
and explain why I have concluded that the plaintiffs’ aboriginal right to harvest clams  
is not infringed.  
[587] The geoduck fishery, another shellfish fishery, is regulated differently from  
clams. The geoduck fishery is subject to limited entry and harvest quotas. This  
fishery is limited to 55 commercial licences, and thus quotas are set at 1/55 of the  
annual coast-wide quota. The location and schedule of openings and closings  
varies from year to year, but the potential to harvest is available every day of a  
calendar year. The geoduck fishery ranks first in landed value of invertebrate  
fisheries in the province. John Frank, a member of the Ahousaht First Nation,  
testified how the geoduck fishery is “a stone’s throw” from the Ahousaht village but  
that the licence regulations prevent any Ahousaht from participating in that fishery. I  
do find the plaintiffs’ aboriginal rights are infringed in respect to the geoduck fishery.  
I.  
Aboriginal Participation in the WCVI Fishery  
[588] Canada’s first defence to the plaintiffs’ claim that their aboriginal rights are  
infringed is that the plaintiffs’ current rate of participation in the commercial fishery,  
on a proportionate basis, is equal to or greater than their historical rates of  
participation. Canada submits that this proportional analysis demonstrates that Nuu-  
chah-nulth participation in the fishery has remained steady at about 32% over the  
period from 1951 to date. The plaintiffs, however, assert that the proportional  
analysis is misleading, and instead prefer to rely on actual numbers of Nuu-chah-  
nulth fishers to prove that their aboriginal rights have been infringed. The parties  
take very different views of the evidence of Nuu-chah-nulth participation in the WCVI  
fishery.  
[589] In this section, I will consider both the statistical and anecdotal evidence as to  
aboriginal participation in the commercial fishery since approximately 1950. (I  
described the participation of the plaintiffs in the WCVI fishery prior to 1950 earlier in  
these Reasons in the discussion of continuity.) I begin with the evidence of some of  
the individual members of the plaintiff First Nations. Some of these witnesses are,  
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or were, fishers; others recounted their observations of their communities’ declining  
participation in the fishery; yet others discussed the impact of specific regulations on  
their ability to fish. After recounting the individual plaintiffs’ evidence, I will refer to  
the evidence of the plaintiffs’ fisheries officer, Dr. Hall. I will then relate the statistical  
and opinion evidence of aboriginal participation given by the experts for both the  
plaintiffs and Canada.  
1.  
Shawn Dion Atleo  
[590] Shawn Atleo is the representative plaintiff for the Ahousaht First Nation. At  
the time of his testimony, he was 39 years of age. He is a Hereditary Chief of the  
Ahousaht and, at the time he testified, the Regional Chief for British Columbia in the  
Assembly of First Nations. Prior to being elected to this position, he served as the  
central region co-chair for the Nuu-chah-nulth Tribal Council.  
[591] Recounting his first trolling experience, Mr. Atleo testified, “I think I was six or  
seven when we went offshore, right off of Ahousaht here. That was my first real  
trolling experience, was late grandpa Mark taking me out and being able to pull out  
some fish and even earn a few dollars, I think I earned $40.00 that day...”. In  
speaking of his grandfather Mark Atleo, he stated, “He was a fisherman, as  
everyone was here, he took me out fishing when I was a boy ...”.  
[592] When asked to describe the fishing activity that he observed in Ahousaht,  
Mr. Atleo testified, “…over my growing-up years here I don’t ever remember a time  
where there wasn’t fishing going on”. He continued to describe fishing as a child on  
the wharf and out with relatives. As he grew older, he progressed to trollers and  
small mosquito fleet fisheries. He reminisced about the “…entire float being full of  
people, of fishermen”. He said:  
… so growing up it’s difficult to think of anyone who didn’t in one way or  
another participate in the fishery going out for halibut, cod, our people also  
went offshore for tuna, all of the species that you find in our territories and  
further outside of our territories our people participated in.  
…
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There were a good number of boats, I couldn’t tell you how many there were  
at the time. Like any kid growing up here, you know, if you weren’t out  
fishing, you were in school that day. You waited for the fish boats to come  
home at the end of the day. So lots of people in our community were having  
as their principal activity commercial fishing.  
[593] Mr. Atleo went on to discuss his teenage years:  
Through my teens it was working on the commercial salmon fishery on the  
seine boats ... it’s very much a time where, as a young person, you know,  
those are instruction grounds ... My grandmother would tell me about how  
they would go and they would fish all summer for food, and they would fish in  
the winder, in the early fall for their winter supply of food, and all summer they  
would fish commercially, and she’s 83 or 84 years old, and she did that all her  
life, when she was a child as well ... So I’ve got, you know, memories of  
fishing my whole life, and it was commercially from the time – as I said, from  
when I was 13 to 17. I don’t remember any of my peers who did fish who  
didn’t work with their families and go out fishing, so obviously that’s changed  
tremendously to today ...  
[594] Mr. Atleo described the range of fish species he had observed Ahousaht  
people harvesting to be coho salmon, sockeye salmon, chum salmon, dog salmon,  
herring, halibut, cod, red snapper, trout, shellfish, and sea urchin, before concluding,  
“…really just about everything that is edible would be harvested and either used at  
home or sold”.  
2.  
Stanley Michael Sam  
[595] Stanley Michael Sam is a member of the Ahousaht First Nation. He was 78  
years of age at the time of his testimony. He was born in Ahousaht and has lived  
there for the duration of his life, with the exception of a five-year period when he  
lived in Port Alberni. Mr. Sam holds the traditional role in the Ahousaht Indian Band  
as speaker for two Chiefs, Hyupinulth (Bill Keitlah) and A-In-Chut (Shawn Atleo).  
[596] Mr. Sam caught his first coho salmon when he was seven years old, and  
began helping his father fish at 11. When he purchased his first boat at the age of  
13, “everyone was fishing, even the mothers, kids, ten years old, nine years old, they  
were out there ... catching fish”. He stated there used to be about 40 to 50 dugout  
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Page 194  
canoes down the beach in Ahousaht. People could fish whenever they wanted,  
without a licence. He declared:  
… everybody worked for their dollars, year round, and I got doing the  
commercial fishing when I was – I didn’t use a licence with my boat for I don’t  
know how long, but my father told me, he said that “if you ever pay for a  
licence, it’s going to be forever, and to pay for it, you pay for it every year.  
Not only that, you break our culture”, he said, “break our law” …  
[597] Eventually Mr. Sam did purchase a licence. He retired from fishing around  
1996 or 1997 for health reasons.  
[598] With respect to modern-day fishing in Ahousaht, Mr. Sam stated:  
But what we see today, what changes there is today, you see all the boats on  
the shore there, you see 12 boats, all destroyed, because the sea is all  
closed, you don’t see people in their boat anymore. You see there, you take  
a picture of it, and it shows around the whole world how we suffer today.  
3.  
Francis Frank  
[599] Francis Frank is a member of the Tla-o-qui-aht First Nation. He was 46 years  
of age at the time of his testimony. Mr. Frank was formerly the elected chief of the  
Tla-o-qui-aht First Nation.  
[600] Asked about his recollections of his community’s fishing activities when he  
was growing up, Mr. Frank described seeing 15 to 20 fishing trollers docked at  
Opitsaht in the 1970s when he was in high school. Many village residents owned  
vessels; many of those who did not worked as crew. As well, people fished from  
speed boats in a mosquito fleet. He said members of his community on Opitsaht  
were either fishers or loggers.  
[601] Mr. Frank recalls that the decline in the fleet occurred between the late 1970s  
and the late 1980s. In his professional capacity as a social worker, he observed an  
increasing number of people on government assistance during that time period. He  
testified that the Tla-o-qui-aht First Nation did have two troller licences but that the  
band did not have sufficient capital or capacity to actually go out and fish the  
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licences. Mr. Frank testified that there is now only one fisherman left in Opitsaht; he  
is referred to as “the die-hard”.  
4.  
Barney Williams Sr., known as Too-Tah  
[602] Barney Williams Sr. was born into the Che:k:’tles7et’h’ First Nation and later  
adopted into the Tla-o-qui-aht First Nation. He was 90 years of age at the time of his  
testimony.  
[603] As a young boy, Mr. Williams Sr. fished from a canoe, trolling for salmon,  
lingcod and halibut. Speaking of the 1930s, he said that everybody in Opitsaht  
fished from canoes or whatever they could use: “That was our living, our way of  
life.” The Che:k:’tles7et’h’ fished for salmon from by trolling June to September. In  
the fall, they fished for salmon in the rivers and inlets, as well as at the mouths of  
rivers using cone-shaped traps made of cedar. In February and March, they fished  
for spawn herring, raking the fish into the canoe or using dipnets. The herring  
spawn was collected from cedar or hemlock branches and also from kelp. Fish were  
bartered and exchanged and also sold to BC Packers and other buyers. Among the  
species they fished were spring salmon, coho salmon, sockeye salmon and halibut.  
[604] Mr. Williams Sr. started commercial fishing when he was 20 years old. He  
continued commercial fishing until his retirement due to illness approximately 20  
years before his testimony. He obtained a benefit from one of the DFO’s aboriginal  
programs, through which he was able to build a 54’ seine boat for about $72,000.  
Mr. Williams Sr. has also trapped and logged to earn a living.  
[605] Mr. Williams Sr. testified as follows:  
Yes my daughter more or less grew up on the boat. She’s 46 years old now.  
She was running the drum and everything. She, she -- all my kids grew up  
on a boat, during the summertime. All have a chance to go fishing and that  
was beautiful for them to have. It’s not everybody that has a chance to go  
fishing. That’s why I think we want to keep our right fishing. That’s one of the  
reasons, because that’s our life and livelihood. That’s our livelihood.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
5. Robert Jack Dennis  
Page 196  
[606] Robert Jack Dennis is a member of the Huu-ay-aht First Nation and is  
currently its elected chief. He was born in 1947.  
[607] Mr. Dennis started to fish when he was 11 or 12 years of age, learning in a  
dugout canoe. His father fished his entire life until five years before his death at age  
70. He testified that all of the members of his community were taught how to be  
fisherman: “Everyone of us had a putter and we were known as the mosquito fleet.  
And that was just the progression into getting into the fishing industry.” Mr. Dennis  
testified that there was no one in the Huu-ay-aht First Nation who did not fish. He  
said that his family had two or three houses in different places within the Huu-ay-aht  
territory related to fishing locations. He testified that “we were a fishing community,  
that was all we had. And so, it was an annual thing to head out there and do our  
thing”. He said that at the peak of the fishing season, there would be about 70  
houses occupied on Diana Island in Huu-ay-aht territory.  
[608] Mr. Dennis fished until he was 25, and then chose to go into logging because  
he felt fishing was not a good career. He turned down an offer from his father of the  
salmon troll boat, as “it seemed too risky” financially. He subsequently ended up  
back in the fishing industry, working at fish plants in Bamfield and Ucluelet.  
[609] Mr. Dennis was asked to describe the level of involvement of the Huu-ay-aht  
people in the fishery today. He responded:  
Not anywhere near, not even close to what it used to be. There used to be a  
time in our tribe that everybody lived at home, everybody could make, you  
know, a reasonable income from fishing. A huge change. You know, there  
was a time when all the fish buyers were located either at Chapis or in  
Bamfield. And then when the industry itself started to what we call centralize,  
they moved their fish buying operations to Vancouver, Victoria. So, it  
became harder for us little guys to participate in the industry. So that was,  
that was the biggest change that I saw. You know, there was no more, there  
wasn’t the ability to just go out fishing for the day and bring your fish into the  
buyer and sell it.  
And then a huge change in the licensing system too, where we would be able  
to sell our fish under my Dad’s licence. After, after I forget what it was called,  
the Davis Plan, you couldn’t do that anymore  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 197  
[610] Mr. Dennis testified that five Huu-ay-aht have licensed boats and that the  
band has two boats and licences. The communal fishing licences presently employ  
up to 10 people for a maximum of two to three weeks of the year. Mr. Dennis  
testified that they leased out a licence to a commercial fishing company, and that  
with the money they raised they performed salmon enhancement work. They also  
lease their communal licence to band members. Mr. Dennis fishes for his own use  
every year. He has an 18’ boat with a 115 horsepower motor.  
6.  
Julia Lucas  
[611] Julia Lucas was born a member of the Ahousaht First Nation. She became a  
member of the Hesquiaht First Nation after her marriage to Simon Lucas in 1959.  
She was 64 years old at the time she testified.  
[612] Ms. Lucas recalls that in her youth, fishermen would go out on a daily basis  
from mid-April to mid-October. Boats began to pack ice in 1959, and then the fish  
camps disappeared. Her husband would then deliver his fish to Tofino or, if he was  
fishing in the Kyuquot area, to Kyuquot or Winter Harbour. Ms. Lucas testified that  
there has been a huge change in the abundance of fish compared to the 1950s and  
1960s, and that there are presently only two boats in the Hesquiaht band.  
[613] Ms. Lucas deposed in her affidavit that she recalls about 67 Ahousaht owner-  
operated fishing vessels that fished commercially during the period from the 1950s  
to the 1990s. In addition, she recalls about 16 people who fished in small canoes or  
small motor boats. She recalls 21 commercial fishing vessels operating from  
Hesquiaht between the 1950s and 1980s. In the 1990s, the number of commercial  
fishing vessels operating from Hesquiaht territory fell to nine and in the 2000s that  
number had further reduced to four.  
7.  
Lillian Howard  
[614] Lillian Howard is a member of the Mowachaht/Muchalaht First Nation. She  
was 57 at the time she testified. She recalls commercial fishing when she was about  
five years old. She recalls going out to fishing grounds about two hours offshore.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 198  
The reserve is now at Tsa Xana which is on the Gold River. She said that the  
members of the band are still very active fishing in and at the mouth of the Gold  
River, though not to the extent of the 1950s. Ms. Howard recalls that in the past,  
there were 16 commercial fishing vessels operating out of the Mowachaht/Muchalaht  
reserve. Now there are none.  
8.  
Ray Williams  
[615] Ray Williams is a member of the Mowachaht/Muchalaht band. He was 66 at  
the time he testified. He and his family are the only members of the band who  
continue to live at Yuquot, in Nootka Sound. He recalls approximately 21  
commercial fishing vessels operating from Mowachaht/Muchalaht reserves in the  
1950s and 1960s. Only one now continues to operate.  
[616] Mr. Williams testified that his family does still fish. He vividly described winter  
fishing in Nootka Sound:  
Q:  
Can you describe for us what it is like to -- the weather in Yuquot in  
the winter? How often can you get out onto the open ocean with the  
winter storms? If you could just fill that in for us.  
A:  
It -- you have to see it. Because it’s so enormous, the waves and the  
wind. And the rain is coming this way. It’s not going down. It’s going  
this way. Because it’s so stormy. And it’s impossible -- almost  
impossible. There are days when it just calms right down like this, but  
the ocean is big. Like, big swells, big waves but not breaking. Just a  
big swell, but humungous swells though. But we don’t risk going out  
unless we’re sure that it’s going to be calm, calm, calm. Because  
there’s no other boats around. Just me and my son in one boat. So  
we have to risk our lives and risk our fishing chip when we go out and  
go out in December, January, for p’uu-i, for halibut. And the halibut  
then is what we call the homesteaders. The homesteaders that –  
halibut that stay there -- live there, stay there. They don’t go out into  
the deep like the other ones do. And we know where they are. And  
we have to pick our days. And risk our lives and risk our boat. It’s our  
only means of travel is our boat. We have to be careful of what we --  
if we hit something, then it’s another loss of our repairing the boat. So  
we have to be careful because we’re the only ones living there. And  
there’s no one close by that can rescue us quickly if something should  
happen. That’s how risky it is, our way of life. But we chose that life  
to live. That’s what we love. We’re in it, and nobody is going to  
change me for the way I live because I love it the way I am.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 199  
Q:  
Right. So when would you say the ocean is as rough as you’ve  
described it? What months of the year would you describe as being  
as you’ve just stated?  
A:  
Q:  
A:  
It would be November, December, January and February.  
Right.  
We did a fishing trip three weeks ago, and there was one of the very  
few chances we had to go. And again risking -- risking our travel and  
our trip to the fishing grounds. But that’s – that’s what we like to do  
and that’s what we love to eat: halibut and yellow eye. And being  
without it is a long time in between, so when we do catch one, even  
which -- like two, three months ago we caught -- had it last. So us  
going out, after not having it for two, three months, it is a real treat for  
us to have it because that’s the way we live. It’s what we eat.  
Q:  
Right. Okay. And presently, Mr. Williams, it’s yourself and your family  
are the only Mowachaht/Muchalaht members living on the coast; is  
that correct?  
A:  
Q:  
A:  
Q:  
A:  
That is correct.  
And the rest of the members live up in Tsarksis or in --  
Tsa Xana.  
Tsa Xana. Or outside of Tsa Xana in Nanaimo or in Victoria?  
Yes.  
[617] What Mr. Williams was describing was food, as opposed to commercial,  
fishing. He said that eight years ago, between 400-450 speedboats, 90% of them  
Americans, were recreational fishing in Yuquot, whereas many non-aboriginal  
fishers have left commercial fishing.  
9.  
Edward Jack  
[618] Edward Jack is a member of the Mowachaht/Muchalaht First Nation. He was  
58 years old at the time he testified. Mr. Jack could recall about 30 different fishers  
who owned and operated their own vessels at varying times between the 1950s and  
1990s. He testified that in the mid-1980s, no Mowachaht/Muchalaht people had  
commercial fishing licences. Because he could not afford a commercial fishing  
licence, he sold his fish through someone who did have a licence. Several other  
Mowachaht/Muchalaht fishers did so as well.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
10. Simon Lucas  
Page 200  
[619] Simon Lucas is a member of the Hesquiaht First Nation and its representative  
plaintiff in this action. He was 70 years of age at the time he testified.  
[620] Dr. Lucas went to residential school for eight years and returned home only in  
the summers. By the time he was 13, he was fishing with his father during those  
summer months. His father taught him to fish and where the fishing banks were. He  
left school at the age of 15. He spent two years logging and then returned to fishing  
with his father. By the time he was about 20, he was a commercial fisherman selling  
to the Canadian Fish Company and to a travelling fish buyer who came to Hesquiaht  
Harbour. Dr. Lucas borrowed $57,000 from the Indian Fishermen’s Assistance  
Program for a new boat, his boat having burned. That price included a licence. He  
fished that boat for about 20 years until the buy-back in 1998.  
[621] Dr. Lucas has held many leadership positions in the Nuu-chah-nulth Tribal  
Council, as well as in various fisheries organizations and task forces. He is  
knowledgeable about fishery regulations and the AFS. He observed that there was  
no aboriginal involvement in the cod fishery despite the fact that the resource was in  
their territory and they used to catch the species. He also complained about the  
implementation of quotas for halibut because, as he said, one had to have caught  
5,000 pounds to qualify for the quota and none of the aboriginal fishers qualified  
even though they had been catching halibut for years. As a result, they lost the right  
to fish halibut.  
[622] Dr. Lucas testified that in the early 1970s, the Nuu-chah-nulth people as a  
whole had approximately 175 fishing boats and about 100 putter fishermen boats.  
By the 1990s, the availability of boats had declined drastically to the extent that it  
was difficult to acquire fish for food.  
[623] Dr. Lucas deposed in his affidavit that between 1950 and 1990, there were  
about 64 Ahousaht commercial fishers operating at some point in time in that First  
Nation. Between 1950 and the 1980s, 22 Hesquiaht commercial fishers were  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 201  
operating. He recalls that in the 1990s there were 11 Hesquiaht commercial fishers,  
and there were only four by the 2000s.  
11.  
Benson Nookemis  
[624] Benson Nookemis is a member of the Huu-ay-aht First Nation. He was 73 at  
the time he testified.  
[625] Mr. Nookemis recalls that when he was a young man, about 90% of the Huu-  
ay-aht people were commercial fishermen. He himself fished for about 57 years  
starting in 1940 and into the 1990s. He said that in the 1950s and 1960s, there were  
36-40 boats in the Huu-ay-aht community. Mr. Nookemis testified that under the  
Mifflin Plan, which restricted gear use, “all our people that used to seine at the time  
lost their seine privileges because they didn’t have any sales in the previous years to  
when they closed it and they lost their licences at that time”. He testified that he lost  
his right to fish for halibut because he had not fished 3,000 pounds in the previous  
years. He also lost profits when changes occurred with the licences for bottom fish  
and groundfish. Historically he had trolled for salmon in the summer and then  
switched over to gillnet in the fall, but the new fisheries regulations required fishers  
to select one or other of the gear.  
12.  
Frank (Alex) Short  
[626] Mr. Short is a member of the Ka:’yu:k’th/Che:k:’tles7et’h’ Band. He was about  
77 years of age at the time of his testimony.  
[627] Mr. Short recalls about 50 Ka:’yu:k’th/ Che:k:’tles7et’h’ band members fishing  
at various times between the 1930s and the present date. At the moment, there is  
only one remaining Ka:’yu:k’th/Che:k:’tles7et’h’ fisherman. Mr. Short testified that in  
the late 1970s the individual quota system “squeezed [him] out of selling our halibut.”  
He said that he did not get a halibut licence because “our boats were too small to  
handle the equipment, the long line that needed a bigger boat”. He testified that no  
one else from Ka:’yu:k’th qualified for a halibut licence. From age 30 to about 60,  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 202  
Mr. Short worked in the forestry industry. The employment was seasonal, and he  
fished in the spring.  
13.  
Christine Jules  
[628] Christine Jules is a member of the Ka:’yu:k’th/Che:k:’tles7et’h’ First Nation.  
At the time she testified she was 67 years of age. She grew up as a Mowachaht and  
became Ka:’yu:k’th/ Che:k:’tles7et’h’ upon marriage.  
[629] Of the 42 commercial fishers Ms. Jules can recall operating between the  
1950s and the 2000s, only one, Victor Hanson, is still fishing. As a child she fished  
with her father who was a commercial fisherman. She testified that in the  
Mowachaht First Nation, fishing was the “only way our people would make money”.  
She then fished with her husband until his death in a boating accident. Her eldest  
son took over the fishing. She remarried Victor Hanson, the only commercial  
fisherman left in their community. She testified that Mr. Hanson does not make  
much, if any, money from his fishing. He has an AI licence and a halibut licence. He  
fishes his AI licence and leases his halibut licence.  
[630] When Ms. Jules moved to Kyquot in the late 1950s, there were 30 or more  
fishing boats at the time. By the time of her first husband’s death in the late 1980s,  
there were only about 12 fishing boats left in the community. She testified that there  
are 10 recreational fishing lodges operating in their territory from June until the end  
of August each year. She estimates there are about 300 recreational fishermen a  
week in the Kyquot territory.  
14.  
Troy John  
[631] Troy John is a member of the Ehattesaht First Nation. He was 22 years of  
age at the time he testified. He grew up fishing with his father and his grandfather.  
Mr. John has a clam licence which earns him about $7,000 a year after expenses.  
He also earns about $1,000 a year working for an oyster farm, and approximately  
$10,000 working as a fish guide for a recreational fishing company. He would  
prefer, however, to be a fisherman.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
15. John Frank  
Page 203  
[632] John Frank is a member of the Ahousaht First Nation. He was 58 years old at  
the time he testified.  
[633] Mr. Frank has been a fisherman all his life. He recalls growing up in the  
Ahousaht village in the late 1950s and early 1960s when there would have been 30-  
40 canoes on the beach and the harbour was full of trollers. He recalls there being  
over 100 fishing boats in the Ahousaht harbour, in addition to the many members of  
the Ahousaht First Nation who lived in Port Alberni, Nanaimo or Victoria and who  
continued to fish from those locations. Mr. Frank’s extended family alone had 18  
boats. He testified about the abundance of fish when he was a child. He also  
testified about the significant amounts of money that fishermen were able to earn in  
the mid-1970s. He said that the herring fishery provided very good income. In his  
best year, he earned about $290,000. Mr. Frank lost the opportunity to fish halibut  
when limited entry was introduced. By focussing on herring, he had not caught  
sufficient halibut to qualify for a licence. He said that the limited entry fishery for  
halibut prejudiced the generalist who historically fished for all species because the  
generalist did not qualify for licences as he had not landed enough halibut in the  
previous years.  
[634] Mr. Frank testified about the geoduck fishery and how there is geoduck in  
abundance in front of the Ahousaht community. He said it is a $9 million business  
but the Ahousaht are restricted from participating in that industry by the regulatory  
regime. Mr. Frank described the geoduck fishery as occurring a stone’s throw away  
from their village. He said, “and I wonder why it’s happening and we’ve got the  
biggest crab bed ever and we have a crab fishery that rakes in $4 million a year and  
a geoduck bed that is $9 million a year. You’ve got $13 million sitting right in our  
front yard that we can’t even get access to. Zero.” He testified that the last geoduck  
licence he heard of for sale was priced at $1,200,000. He said that the Ahousaht  
would take part in that fishing opportunity if they had the ability to do so.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 204  
[635] Mr. Frank is a successful fisherman. He contrasted himself with his brother  
and many others who were not able to navigate the complexities and limitations of  
the DFO regulatory regime and, consequently, could not survive in the commercial  
fishery. He complained about the fact that the Ahousaht First Nation had worked  
with the DFO to stock a coho stream in Ahousaht territory, yet only recreational  
fishers were permitted to catch the coho that were successfully enhanced. He also  
expressed dissatisfaction with the DFO’s refusal to licence the mosquito fleet to fish  
commercially on a modest basis.  
[636] Mr. Frank deposed in his affidavit that in 2007, six members of the Ahousaht  
fished with AI licences in their own vessels. In 2000, eight members of the Ahousaht  
were fishing with AI licences. In the 1990s, 32 members of the band were fishing  
with AI licences. Between 1960 and 1980, 71 members of the Ahousaht were  
fishing. In the 1960s, 35 members of the Ahousaht fished from canoes and sold  
their fish without DFO licences, and another 33 fished without licences from small  
motor boats. None of those people now fish.  
16.  
Charles (Chuck) McCarthy  
[637] Charles McCarthy is a member of the Ucluelet First Nation. He was 52 years  
old at the time he testified.  
[638] Mr. McCarthy became a commercial fisherman when he was 18, inheriting his  
father’s boat. He is still working as a commercial fisherman. He has two vessels.  
He, like Mr. Frank, is a successful fisherman. This year he will be fishing with his 48’  
fibreglass vessel, The Patriot. A boat of this size is necessary in order to make his  
fishing enterprise viable. The Patriot has a $9,000 video camera on board to  
monitor all the fish he catches, a requirement of the DFO. He pays $65 per hour to  
have someone review the video footage or, alternatively, hires an onboard observer  
which costs $700 a day. If he is halibut fishing and pulls up other fish, he must buy  
quota for the by-catch and cannot go out to fish again until he has done so.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 205  
[639] I conclude from the evidence of Mr. McCarthy and Mr. Frank that fishing  
commercially on a successful basis is a complicated, costly enterprise. The fisher  
must be familiar with the DFO’s complex regulatory regime and have capital. Most  
Nuu-chah-nulth fishers cannot hope to enter the industry on that basis.  
Mr. McCarthy testified that there are no Ucluelet fishers operating at the present  
time, though there are people interested in doing so. There are, however, barriers to  
these people becoming involved in commercial fishing. Mr. McCarthy testified that  
the biggest barrier is the cost of the licence and the boat. He believes that it would  
be quite lucrative to fish from a boat of less than 20’ if fishers did not have to acquire  
a licence and a quota. He was asked about the current barriers to commercial  
fishing:  
Q:  
A:  
In your time as chief, were you in some way working towards more  
access for the Ucluelet First Nation?  
We’ve always wanted more access for individuals to just actually be  
able to access salmon and – salmon, any species, and be able to  
make some sort of moderate living, whether it’s prawns in some of our  
territory, to split licences to make available an option whether or not  
they want to fish.  
Not everybody might want to fish. But there’s a certain amount of  
people that, I mean, if given an access to the resource will actually re-  
enter the fishing industry.  
But the biggest barrier for anybody is the cost of quotas and  
monitoring and other fees.  
[640] Mr. McCarthy deposed in his affidavit that there were 30 commercial fishing  
boats operating from the Ucluelet First Nation in the 1960s to 1980s. In the 1990s  
that number was reduced to seven. In the 2000s the number was reduced to two  
inactive licensed fishing vessels owned by a member of the Ucluelet First Nation.  
17.  
Barney Williams Jr.  
[641] Barney Williams Jr. is a member of the Tla-o-qui-aht First Nation. He was 70  
years of age at the time he testified. He testified that every family on Opitsaht had a  
boat when he was growing up, either a little putter, a troller or a combination boat.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
18. Dr. Don Hall  
Page 206  
[642] The plaintiffs also rely on the evidence of Dr. Don Hall to prove infringement.  
Dr. Hall has been employed by the Nuu-chah-nulth Tribal Council as a fisheries  
biologist since 1992 and as the Fisheries Program Manager since 1996.  
[643] The Nuu-chah-nulth Tribal Council is composed of fourteen Nuu-chah-nulth  
nations, including the plaintiffs. The Council maintains a fisheries department to  
offer services to its member First Nations, including technical and policy advice on  
matters related to the management of aquatic resources. That department co-  
ordinates certain aspects of the relationship between the DFO and the Nuu-chah-  
nulth Tribal Council members, including the distribution of funding.  
[644] In 2006, the Nuu-chah-nulth First Nations established an aquatic  
management organization with the Nuu-chah-nulth name of Uu-a-thluk. The central  
forum and decision-making body for the Uu-a-thluk is a Council of Ha’wiih  
(hereditary chiefs and their representatives), consisting of representatives of each of  
the Nuu-chah-nulth First Nations. The Council of Ha’wiih is supported by Uu-a-thluk  
staff and a joint technical working group. That working group, in turn, is comprised  
of members from the DFO, the Nuu-chah-nulth First Nations and the Nuu-chah-nulth  
Tribal Council.  
[645] The Nuu-chah-nulth Tribal Council annually receives funding from the DFO to  
support the activities and programs of its fisheries department, as well as the Uu-a-  
thluk and the Council of Ha’wiih. In 2007, that amount was approximately  
$994,000.00. This funding is passed through to the individual First Nations who  
make up the Nuu-chah-nulth Tribal Council.  
[646] Dr. Hall testified that there are now only three full-time Nuu-chah-nulth fishers,  
compared to about 70 or 80 sixteen years ago when he began his employment with  
the Nuu-chah-nulth Tribal Council:  
Q:  
So you start working there. What’s the state of affairs with -- how  
many people in the Nuu-chah-nulth nations are fishing based -- you  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 207  
know, what knowledge did you acquire about the level of participation  
in commercial fisheries?  
A:  
When I started working with the Nuu-chah-nulth Tribal Council in ‘92,  
there were -- my recollection, you know, 70 or 80 Nuu-chah-nulth  
fishermen. And this would be skippers of boats, not deckhands or  
that. But 70 or 80 people that were involved with commercial fishing.  
To at least earn part of their livelihood. Some of that would be full-  
time part of their livelihood. Others it would be a good portion of it. If I  
could use that term. In other words, active commercial fishermen,  
there were 70 or 80 that were running boats and skippers boats.  
Q:  
A:  
And how -- what number would you -- in your experience exist today  
similar question. I mean, people running their own boats, how can  
you compare the 70 or 80 to today?  
In that I’ve worked there almost 16 years. It will be 16 years this July.  
So in that period of time my observation has been a decline of Nuu-  
chah-nulth participation. Now to the point where I can, you know,  
name or count off about 18 or 20 or so Nuu-chah-nulth fishermen that  
I can, you know, say that are at least, you know, part time involved in  
fishermen. Of that group -- of that group, I can only think of three that  
are in my observation, you know, full-time fishermen that are, you  
know, to describe it generally, making a go, making a living at  
commercial fishing. And that would be Chuck McCarthy from  
Ucluelet, Vic Amos from Hesquiaht and Vic’s nephew Terry Amos  
from -- also from Hesquiaht. So those -- those three are the guys that  
are -- the men that are, you know, active. Active Nuu-chah-nulth  
commercial fishermen. And the other set, you know, of 16 or 17 or --  
would be, you know, guys that are still trying, you know, may fish  
salmon. May fish herring. You know, one guy Calvin Clark fishes  
crab. So there, that is that other set of people that -- I don’t think  
they’re making a living at commercial fishing any more, but they are  
still trying and still participating.  
Q:  
A:  
And so has it been part of your role at the NTC to address this  
declining number of fishermen?  
Oh, absolutely. It is a stated objective of Uu-a-thluk and the Council  
of Haw’iih to increase the economic access for Nuu-chah-nulth. And  
that is in the existing commercial fisheries, in new economic fisheries  
in the -- you know, maintaining the types of pilot sales fisheries that  
we talked about before.  
So, sure, we tried every which way we can to maintain, hold on to  
what Nuu-chah-nulth have, and certainly try to, you know, grow that in  
every opportunity and way that we can think of. That I can think of  
and that my staff can think of.  
Q:  
A:  
You say opportunity you can think of. Are you limiting yourself to the  
license and quota structure currently in place through DFO?  
No. We are -- sorry. Uu-a-thluk staff and myself are always looking  
for, you know, any opportunity. It does not just -- it is not -- there are  
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not those opportunities that are just within the existing commercial  
license and quota structure.  
[647] I assume Dr. Hall overlooked Mr. Frank, a successful Ahousaht fisher.  
[648] Dr. Hall gave evidence about numerous proposals that his organization has  
made to enhance commercial fishing opportunities for the Nuu-chah-nulth First  
Nations. He described, for instance, the Somass Terminal Fishery which operates  
on the Somass River and benefits the Tseshaht and Hupacasath First Nations. The  
fishery is called a terminal fishery because the fish are caught as they swim  
upstream to their spawning grounds, in other words, at the terminus of their life  
cycle. The Somass Terminal Fishery is an aboriginal-only fishery and enables  
numerous members of the participating First Nations to fish from small boats and to  
sell their fish to somewhat enhance their income. The Nuu-chah-nulth Tribal Council  
has requested the extension of this program to other rivers and First Nations. Below  
I reproduce a letter dated July 18, 2006, from Francis Frank, president of the Nuu-  
chah-nulth Tribal Council, to Prime Minister Harper that was prepared with the  
assistance of Dr. Hall. The letter discusses the benefits of a terminal fishery, such  
as that on the Somass:  
Two Nuu-chah-nulth First Nations in the Port Alberni area, Tseshaht and  
Hupacasath, have been involved in exploring methods for aboriginal  
commercial fisheries since 1992. These First Nations have designed small  
scale fisheries that create seasonal employment for local residents of the Port  
Alberni area. An economic evaluation of the fishery determined that most of  
the money generated from the aboriginal commercial fishery stays in the Port  
Alberni area, supporting all local businesses. Past and present Port Alberni  
mayors and local business leaders support the contribution of the aboriginal  
commercial fishery, the general commercial fishery, and the recreational  
fishery to our local economy.  
The aboriginal commercial fishery is a different fishery than the general  
commercial fishery. Where the general commercial fishery uses large boats  
with long nets and power driven gear, the Tseshaht and Hupacasath have  
deliberately created a fishery with small boats, short nets, and no power gear  
allowed to pull the nets. With these restrictive rules the Tseshaht and  
Hupacasath create opportunities for over a hundred community members to  
participate in the fishery. The same quantity of fish harvested by over 100  
Tseshaht and Hupacasath community members over a two month long  
fishing season (subject to area and weekly openings and closures) could  
easily be harvested by one seine boat (with a crew of 5 persons) or a few  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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commercial gillnet boats (crew of 2 or 3 persons) in a few days of fishing.  
Tseshaht and Hupacasath have chosen to create a fishery with different rules  
to provide a reasonable benefit to a large number of their community  
members. Likewise, the recreational fishery has designed rules that  
maximize the opportunity and expectation for a maximum number of sport  
fishing participants. The commercial fishery has designed rules that work for  
their choice of vessels and gear. They are all different fisheries, with different  
objectives designed to meet the needs of their constituents.  
Aboriginal, commercial, and recreational fishing interests continue to work  
together so that they will all benefit from the harvestable surplus of salmon  
returning to the rivers in Alberni Inlet. It is hard work, but it is paying off with  
peace on the water and benefits to all harvesters. No one wants to go back  
to the 1980’s, with racial tensions that lead to dangerous confrontations and  
eroded community spirit, not to mention greatly escalated the enforcement  
costs to DFO.  
[649] The DFO has not agreed to extend this type of fishery to other rivers.  
[650] The Somass Terminal Fishery has not been without controversy, and similar  
pilot sales programs on the Fraser River have been challenged in the Courts on  
constitutional grounds. Recently, in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483,  
the Supreme Court of Canada upheld the constitutionality of those pilot sales  
programs, concluding that they did not infringe the equality rights of non-aboriginal  
fishers under s. 15 of the Charter.  
[651] Another suggestion that Dr. Hall has made to the DFO is to permit aboriginal  
fishers to fish from a mosquito fleet, being a fleet of small motorized boats. The  
proposal is that a licence would be divided, for example, by five, so that five fishers  
could operate from smaller vessels. It is Dr. Hall’s view that permitting fishing  
through a divided licence in a mosquito fleet would generate economic spinoff to  
aboriginal communities. He has had no success in persuading the DFO to agree to  
such a proposal.  
[652] The Ahousaht First Nation made a proposal to the DFO in March 1997 for  
their mosquito fleet to become bona fide commercial fishers. The Ahousaht  
proposed that they procure through the Aboriginal Fisheries Strategy program five  
salmon gillnet licences and then convert them on a tonnage basis into 30 separate  
licences. The Ahousaht said in its proposal that “with the allowability to split  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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tonnage, each of these fishers will become legitimate commercial fishers, hiring one  
extra crew person per vessel to hand pull gillnets. As a result, 60 members of  
Ahousaht will be integrated into the mainstream economy, allowing them to receive  
market prices for their catch, pay market wages to their crew and save money over  
the long term for the future purchase of additional licences and vessels.”  
[653] Wilf Luedke, a DFO witness, testified that this Ahousaht proposal was  
favourably viewed by the local DFO staff but that to implement it would have  
required ministerial decisions which, for one reason or another, were never  
forthcoming.  
[654] Along similar lines, on behalf of another Nuu-chah-nulth Tribal Council non-  
plaintiff First Nation, Dr. Hall has recommended the splitting of crab licences. This  
proposal, too, was not favourably received by the DFO on the basis that  
conservation requirements could not be met, as five separate vessels fishing on a  
partitioned licence would actually fish more than one vessel on one licence.  
[655] Dr. Hall also gave evidence about the advantages of permitting aboriginal  
fishing in pocket herring fisheries. As noted above, pocket herring fisheries are  
stocks that are separate and discreet from the major herring stocks harvested in the  
commercial roe-herring seine and gillnet fisheries. The stocks are not sufficiently  
large to sustain the regular fishery, but Dr. Hall is of the view that they could be  
fished by aboriginal fishers to create economic opportunities. The DFO has not  
agreed to grant a pocket herring fishery to the Nuu-chah-nulth.  
[656] Dr. Hall testified that the individual transferrable quota system is simply too  
expensive for Nuu-chah-nulth fishers. Nuu-chah-nulth fishers did not qualify for  
quota because they had not caught sufficient tonnage in prior years. Dr. Hall  
testified that there are now no Nuu-chah-nulth participants in the halibut fishery. He  
testified that to make a living on the WCVI, a fisher needs to diversify, but that  
diversification is not encouraged by the present regulatory regime. For example,  
some years, sockeye salmon will migrate down into the Georgia Strait, and in other  
years, down the WCVI. Dr. Hall pointed out that the Nuu-chah-nulth at one point  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 211  
had a diversity of access through the “A” licences under which different species  
could be accessed. As the regulatory regime changed, however, various species  
were, to quote Dr. Hall, “stripped off that A licence over time.” Each species that  
was stripped off the “A” licence went into its own licensing regime.  
[657] Dr. Hall testified that a diversified fishery remains a goal of the Nuu-chah-  
nulth Tribal Council and the Nuu-chah-nulth communities. He pointed out that there  
are limited economic opportunities on the WCVI. As he put it, “there is fish, there  
are trees and there are tourists.” He said that those are the only major economic  
sectors on the WCVI.  
[658] Dr. Hall also testified about the prohibitive cost of licences. He testified about  
proposals for communal licences in which more than one boat could operate under  
the same licence as a way of spreading the economic opportunity to the community.  
The DFO has not agreed to that proposal. Dr. Hall described the Makah Fishery in  
Washington State as a model of what could be done to enhance aboriginal fishing  
opportunities. The Makah are a Nuu-chah-nulth speaking aboriginal community at  
the end of the Olympic Peninsula in Washington State. They have similar  
geography and similarly limited economic opportunities. Dr. Hall testified about his  
recent visit to Makah communities:  
I saw a harbour full of Makah fishing vessels like 50 or 60 vessels, and some  
slips that were boat slips where boats go, some slips that were empty  
implying to me that boats were out fishing, so they were actively fishing as  
well. There were boats that were offloading … because part of our  
observation down there wasn’t just the fishing fleet but it was also the political  
structure, the judicial structure that Makah have done there.  
[659] Dr. Hall was of the view that the kind of vibrant aboriginal fishing community  
that exists in the Makah territory could be replicated in the Nuu-chah-nulth territories  
in British Columbia.  
[660] It was pointed out to Dr. Hall in cross-examination that the Nuu-chah-nulth do  
have 25 communal commercial licences, some of which are leased to non-Nuu-  
chah-nulth fishers. He responded that some of them are not being fished because  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 212  
of the current poor state of the salmon fishery and some are not fished because  
there are no fishers with suitable vessels who can afford to fish.  
[661] At a DFO Pacific Region community dialogue in 2007, Dr. Hall is reported to  
have been asked and answered the following questions:  
Q:  
A:  
What do you see happening in the years you have been involved?  
Since 1992, I have seen a downward turn in Nuu chah nulth  
participation. If we go back further in 60s and 70s we had a very  
strong troll fleet on west coast. When I started there were still about  
80 to 90 active fishermen. Right now you count on both hands the  
number of Nuu chah nulth fishermen.  
What opportunities are out here? I say nowadays the opportunities  
are fishing, trees, and tourists. Fishing will remain part of west coast  
economy. It is hard not to be pessimistic. Lots of resources are being  
extracted – just not many west coast people participating in economy.  
Nuu chah nulth is trying to turn tide around, in particular to benefit  
from sea resources.  
Q:  
A:  
What do you see happening as far as trends with resources  
themselves and other factors affecting resources?  
Scary things are going on with high value species people are  
dependent on – sockeye in particular. Climate change is affecting the  
southern limit for sockeye. If climate change continues, those species  
will have hard time maintaining themselves. Fishery is very  
dependent on Fraser sockeye but the Fraser experienced warming of  
waters … Biologically you would figure that there are other species  
that will fill in over time maybe not within our time scale though.  
Oceans are still productive, still in good condition. Other species will  
be accessible – we just don’t know what they are.  
Q:  
A:  
What else are you saying re: resource shift in west coast area?  
There are lots of strange things going on. There is a huge shift with  
sardines which have shown up in last couple of years – trying to get  
that to become viable. Other changes that elders in Barclay Sound  
mention are with sea mammals like sea lions, and of course the sea  
otters. Changes are happening so quickly it is hard for fish harvesters  
and people to adapt.  
Q:  
A:  
Would you say, re: licensing, that part of the issue is trying to find  
ways to be more adaptable and catch variety of species?  
Yes, but how do you get there? Nuu chah nulth have learned to adapt  
and survive. Everyone used to fish salmon, halibut, etc, worked in  
process plants, logged. Today there is less opportunity to have that  
kind of diverse work background. Today you need a licence or to be  
part of forest company. How do you get back to being able to earn a  
living from resources?  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 213  
Q:  
A:  
Are people fighting for access here?  
There is a short term crisis on west coast re: access. There is an  
abundance of resources out here that are not accessible to residents  
on the west coast.  
Q:  
A:  
What is your vision for the future?  
Nuu chah nulth is looking at access and how it can be distributed to  
benefit communities. We say to government in terms of Nuu chah  
nulth access – policies need to be changed. We see part of the  
answer is to be able to distribute benefits amongst more people to  
give a modest level or moderate livelihood. For example, in the  
Somass fishery, their communities use their own restrictions in fishery  
to distribute amongst family members. As a result they have 150  
people participating in fishery, even thought you could take the same  
quantity of fish with a seine boat. How do you distribute benefits  
amongst community members?  
J.  
Michelle James – Canada’s Fisheries Expert  
[662] Canada relies on statistical evidence compiled by Michelle James, its  
fisheries expert, in support of its argument that aboriginal participation in the  
commercial fishery has remained relatively constant since 1950. Canada contends  
that it cannot be said to infringe the plaintiffs’ aboriginal rights if the proportion of  
aboriginal participants in the commercial fishery has remained relatively constant  
since that time.  
[663] Ms. James testified to the following rates of participation in the commercial  
fishery:  
1951 – The total number of commercial fishers in British Columbia was  
13,213. 17.2% of all species licences and 17% of all salmon licences were  
held by aboriginal fishers.  
1973 – The total number of commercial fishers in British Columbia was  
11,717. 14.3% of salmon licences were held by aboriginal fishers.  
1985 – The total number of commercial fishers in British Columbia was  
18,168. 17.9% of all species licences and 20.5% of salmon licences were  
held by aboriginal fishers.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 214  
2003 – The total number of commercial fishers in British Columbia was 8,142.  
21.5% of species licences and 32.2% of salmon licences were held by  
aboriginal fishers.  
[664] Ms. James concluded that the commercial fishery has declined since the  
1980s, whether measured by number of licences, employment, number of vessels,  
or value of catch. She also said that despite the decline in the commercial fishery,  
the percentage of aboriginal participation has been slowly increasing. She attributes  
this partly to individual aboriginal fishers’ skill in fishing and their ability to adjust to  
the changing industry, and partly to government programs aimed at maintaining and  
increasing aboriginal participation in commercial fisheries.  
[665] Measuring aboriginal participation in a different way, Ms. James testified that  
aboriginal peoples in British Columbia (not just the plaintiffs) hold 21% of all vessel-  
based licences in the province but that their share of the landed value is only 14%.  
K.  
Allen Wood – the Plaintiffs’ Fisheries Expert  
[666] Mr. Wood did not materially disagree with Ms. James’ calculations of the  
number of aboriginal-held licences.  
[667] Mr. Wood testified that he also measured Nuu-chah-nulth involvement in the  
fishery by calculating the number of fishing licences issued to Nuu-chah-nulth, the  
number of fishing jobs, either captain or crew, and the number of fishing weeks of  
work. He calculated the Nuu-chah-nulth salmon fishing licences for all 11 original  
plaintiff bands as follows:  
1967 – 193  
1977 – 102  
1980 – 103  
1995 – 89  
2001 – 23  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 215  
(This calculation excludes F Licences, Allocation Transfer Program or pilot sales.)  
[668] Mr. Wood explained that the decrease in the number of salmon fishing  
licences from 1995 to 2001 was related to the introduction of area and gear licences,  
licence stacking, the voluntary buyback of 50% of the salmon licences, and stringent  
conservation measures. Thus, for instance, of the 89 Nuu-chah-nulth salmon  
licences in 1995, 52 were sold to the buy-back program and 14 others were sold to  
non-Nuu-chah-nulth fishers for a total Nuu-chah-nulth decrease of 74%.  
[669] Mr. Wood calculated the number of Nuu-chah-nulth salmon fishing jobs as  
follows:  
1967 – 232  
1977 – 169  
1980 – 186  
1995 – 185  
2001 – 42  
[670] He also calculated work weeks per year of salmon fishing for the Nuu-chah-  
nulth on a periodic comparative basis:  
1967 – 4,084  
1977 – 2,356  
1980 – 3,121  
1995 – 1,710  
2001 – 373  
[671] Mr. Wood explained that this dramatic decline was partly the result of the  
increased catching power of the larger industrial boats requiring much less  
manpower than the smaller boats used previously.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 216  
[672] Mr. Wood also looked at non-salmon licences, though there is less statistical  
data available for the earlier years in those fisheries. As well, he noted, most of the  
Nuu-chah-nulth licences for non-salmon fisheries are for low value fisheries such as  
clams. Mr. Wood calculated that in 1995, the Nuu-chah-nulth held 245 non-salmon  
licences (of this number 177 were clam licences) representing 202 jobs, or 1,554  
work weeks (1,119 attributable to clams). The number was relatively stable for  
2001, at 238 licences (182 clam licences), 206 jobs, and 1640 work weeks (1,150 for  
clams). Mr. Wood concluded that, “The bottom line is that much of the BC catch is  
taken in the WCVI area, but Nuu-chah-nulth hold few licences for fisheries in their  
area, except for clams. For various reasons, Nuu-chah-nulth’s participation in local  
groundfish, shellfish and herring fisheries is now low.”  
[673] Mr. Wood also opined that the cost of fishing competitively has become  
prohibitive for most Nuu-chah-nulth fishers. Having noted that Nuu-chah-nulth  
people living on reserve have no collateral, and thus no ability to mortgage a home  
in order to raise capital, he stated (at p. 31):  
In the 1920s, a person could go trolling for the cost of some hand lines, lures,  
a small boat and a $1 licence - a total cost of less than $50. To fish in outer  
waters required a bigger boat and a bit more gear but the overall price was  
about $650 (fisheries department annual reports). Through time the size of  
boats and the number of lines fished increased, as did the cost to go fishing.  
Average troll vessel value in 1964 was $5,500 and in 1965 was $8,700  
(Sinclair, 1978), $8,960 in 1967 and $9,939 in 1968 (Campbell, 1973). Then  
in 1969, with limited entry vessel based licensing, both the cost of the licence  
and the average cost and size of vessels went up sharply. By 1972 an  
average licensed troller was valued at $19,123, and in 1976 at $46,800.  
Now, with area and gear licensing and licence stacking the cost to get  
licences has increased again. Salmon troll licences now sell for $170,000 to  
$200,000 depending on the licence area. Troll vessels now sell for $100,000  
plus and fishing gear and related equipment are expensive. To get into  
salmon trolling now would cost at least $300,000 to $400,000. To fish in  
more than one area requires an additional licence for each area. To be able  
to fish anywhere on the coast, as in the past, would be $600,000 or more.  
(Average annual gross income of trollers from 1992 to 1995 was $57,600.  
(Gislason, 1997)). The questions for would-be NCN fishermen are, where  
can I get $300,000 to $400,000 and can I earn enough fishing to pay it back  
on schedule and make a living? For those people living on reserve, these  
requirements often prevent them from going fishing. Also, if a current  
fisherman doesn’t keep up with changes in fishing power it will affect his  
catch and the resale value of his vessel.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 217  
[674] In conclusion, Mr. Wood opined that the conservation measures taken by the  
government, the industrialization of the fishery, the collapse of the salmon fishery,  
and the various licensing regimes have combined to largely exclude the Nuu-chah-  
nulth from the WCVI fishery. He said that no attempt was made by the DFO to  
protect the Nuu-chah-nulth artisanal fishery. Rather, the regulatory regime rewarded  
those fishers who moved into the industrial fishery. Mr. Wood said that the only  
fishery in which the Nuu-chah-nulth have a significant share is clams, but the total  
landed value of all clam licences was only $493,000 in 2005. With respect to the  
balance of the fishery, he concluded that the Nuu-chah-nulth are “now essentially  
excluded from accessing species that accounted for about 70% of the 2003 BC  
landed value of $360 million. Many of these fisheries take place in part in the WCVI  
area.” Mr. Wood concluded that the “main force driving change has been  
competition for fish and profits. Although competitive pressures are inherent in  
common property fisheries, government programs and industry responses  
aggravated those pressures, sped up change, and increased competition and  
pressure on [Nuu-chah-nulth] fishermen.”  
[675] As to the government programs intended to have ameliorative effects with  
respect to the impact of these changes on aboriginal participation in the fishery,  
Mr. Wood concluded that such programs generally only assisted those still in the  
fishery to stay in the industry, rather than helping those displaced by the changes.  
Few of the programs helped the plaintiffs to get into commercial fishing. In his view,  
government policy and programs failed to protect the interests of First Nations  
fishers.  
[676] Gordon Gislason, an economic expert with particular expertise in the  
valuation of ocean-based industries on the WCVI, testified as a witness for Canada.  
He gave evidence about the impact of the loss of fishing jobs on aboriginal  
communities. Among the points he made were the following: any one licence and  
associated job loss is much more significant to First Nations people and  
communities than to their non-aboriginal counterparts; aboriginal people in their  
home communities are particularly disadvantaged in trying to cope with their  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 218  
reduced employment base; fishing jobs and income comprise a much greater share  
of the community economic base in aboriginal communities; many First Nations  
communities are isolated and/or lack road access thereby further diminishing job  
opportunities; aboriginal people are less likely to move from their home communities  
to take a job even if one is available; many aboriginal peoples do not have assets to  
use as collateral to secure financing to purchase a second salmon licence;  
employment earnings are spread or shared among the community and its members  
more so than in non-aboriginal communities; the impacts of a job loss are more far-  
reaching; many reserves are remote and barren with little opportunity to live off the  
land; and fishing is the only life many First Nations people have ever known.  
L.  
Conclusion on Nuu-chah-nulth Participation in the Commercial Fishery  
[677] The rate of aboriginal participation in the commercial fishery is relevant to the  
infringement analysis since decline in participation, if attributable at least in  
significant part to the impugned government action, is evidence of infringement.  
[678] The plaintiffs contend that Mr. Wood’s evidence, combined with the personal  
observations and recollections of numerous plaintiff witnesses, paints an accurate  
picture of the decline of Nuu-chah-nulth participation in the WCVI fishery. Canada,  
on the other hand, relies primarily on the evidence of Ms. James and admissions  
made by Mr. Wood to argue that Nuu-chah-nulth participation in the commercial  
fishery is proportionate to the Nuu-chah-nulth population when compared to the  
population of British Columbia.  
[679] In my view, the statistical evidence is not helpful to my analysis because it  
creates a distorted picture of actual Nuu-chah-nulth participation in the commercial  
fishery. The statistical evidence is largely focussed on licences and quota without  
regard to who is fishing the licence or if it is being fished. Further, the statistics do  
not differentiate between these plaintiffs and others, or between clam licences and  
other species licences.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 219  
[680] The uncontroverted evidence of Dr. Hall and the individual members of the  
Nuu-chah-nulth communities was that there are now only a handful of active full-time  
Nuu-chah-nulth commercial fishers. The evidence of witnesses such as Dr. Lucas,  
John Frank, and Charles McCarthy – that the individual quota system “squeezed”  
the Nuu-chah-nulth out of the halibut fishery – was not challenged. I accept the  
evidence of the plaintiffs as proof of the fact that Nuu-chah-nulth participation in the  
commercial fishery has been reduced to three or four active fishermen. I also accept  
the evidence of the plaintiffs, and it was not challenged, that as recently as the  
1980s, there was a flourishing Nuu-chah-nulth commercial fishery in which  
participants fished from vessels of varying sizes.  
[681] The proportional analysis upon which Canada relies treats all licences  
equally. The plaintiffs contend, and I agree, that most of their licences are in the  
lower value fisheries. Moreover, the plaintiffs do not utilize some of their licences  
because they do not have sufficient capital to fish those licences.  
[682] Canada’s emphasis on a proportionality analysis derives from comments of  
Lamer C.J. in Gladstone, at para. 64  
That no blanket requirement is imposed under the priority doctrine should not  
suggest, however, that no guidance is possible in this area, or that the  
government’s actions will not be subject to scrutiny. Questions relevant to the  
determination of whether the government has granted priority to aboriginal  
rights holders are those enumerated in Sparrow relating to consultation and  
compensation, as well as questions such as whether the government has  
accommodated the exercise of the aboriginal right to participate in the fishery  
(through reduced licence fees, for example), whether the government’s  
objectives in enacting a particular regulatory scheme reflect the need to take  
into account the priority of aboriginal rights holders, the extent of the  
participation in the fishery of aboriginal rights holders relative to their  
percentage of the population, how the government has accommodated  
different aboriginal rights in a particular fishery (food versus commercial  
rights, for example), how important the fishery is to the economic and  
material well-being of the band in question, and the criteria taken into account  
by the government in, for example, allocating commercial licences amongst  
different users. These questions, like those in Sparrow, do not represent an  
exhaustive list of the factors that may be taken into account in determining  
whether the government can be said to have given priority to aboriginal rights  
holders; they give some indication, however, of what such an inquiry should  
look like.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 220  
[683] I pause here to note that although proportionality is one of the questions that  
Lamer C.J. posed as relevant to the justification analysis, he did not suggest that on  
its own it was an absolute test of justification.  
[684] While a proportionality analysis may be relevant to justification, it is not a full  
answer, either factually or legally, to the question of infringement in this case  
because the absolute number of Nuu-chah-nulth fishers now actively fishing on a  
commercial basis is miniscule, both in absolute terms and in comparison to the  
historical way of life of the Nuu-chah-nulth people.  
[685] Proportionality must also be examined in the context of the importance of the  
fishery to the economic and cultural survival of the plaintiffs. Mr. Gislason’s  
evidence is important because it is another indicator of the importance of the fishery  
to Nuu-chah-nulth survival. Similarly, Dr. Hall noted the dependence of the Nuu-  
chah-nulth on the fishery because of the limited alternative economic opportunities  
available to them. Going back earlier to the 19th century, Superintendent Powell,  
Sproat and others observed that the Nuu-chah-nulth were almost entirely dependent  
on the harvest of the sea for their economic well-being.  
[686] I find that the evidence of the actual participants in the industry, that is, the  
Nuu-chah-nulth community members, paints a more accurate picture of Nuu-chah-  
nulth participation than the statistical evidence of the experts based on licences and  
quota. I also find that the loss of a fishing job in the Nuu-chah-nulth communities  
imposes greater hardship on the plaintiffs than it does on non-aboriginal  
communities because of the isolation of Nuu-chah-nulth communities and the lack of  
other significant economic opportunities. Evidence of other economic opportunities  
such as guiding recreational fishers, working in fishing lodges, working in  
aquaculture (which is relevant to this conclusion and is therefore admissible), and  
tourism does not refute the evidence of historical economic dependence on the  
fishery and the relative absence of other significant economic opportunities.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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M.  
1.  
Cumulative Effects of Canada’s Fisheries Policy  
Introduction  
[687] The plaintiffs contend that DFO policies have devastated their commercial  
fishing opportunities. Canada counters that the cumulative effect of its “suite” of  
fisheries policies and programs has, in fact, accrued to the benefit of the plaintiffs,  
and that the decline in the aboriginal fishery is the result of other factors.  
[688] In this section, I will summarize the evidence regarding the fishing policies  
and programs upon which Canada relies to prove that the regulatory regime as a  
whole has had an ameliorative effect on the plaintiffs.  
[689] Canada’s fishing policies govern the management of the fishery. As already  
noted, it is these policies, and not the Fisheries Act and regulations, which largely  
allocate the fishery among the various user groups. A consideration of the  
cumulative effect of Canada’s fisheries policies is relevant to the infringement  
analysis, in particular, whether the impugned regulatory regime imposes undue  
hardship on the plaintiffs or denies them their preferred means of exercising their  
aboriginal rights. As will be seen from the discussion of these policies, Canada  
adheres to an integrated management model that treats all participants in the  
commercial fishery equally. While Canada endeavours to support aboriginal  
participation, it does not recognize any aboriginal right to participate in the  
commercial fishery.  
2.  
Canada’s current fishing policy  
[690] Following the Supreme Court of Canada’s judgment in Sparrow, the DFO  
restated its fishing policy with respect to aboriginal peoples as follows in its “Policy  
for the Management of Aboriginal Fishing” (August 6, 1993):  
Taking into account the current state of the law on Aboriginal fishing rights,  
DFO has adopted the following policies related to Aboriginal fishing:  
•
Aboriginal fishing should occur within the areas that were used  
historically by the aboriginal group or First Nation.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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•
•
Aboriginal fishing opportunities will be provided to the First Nation  
having historical use and occupancy of the area in question. The First  
Nation will administer the fishing opportunities for the benefit of its  
members collectively rather than individually.  
Aboriginal fishing for food, social and ceremonial purposes will have  
first priority, after conservation, over other user groups. Aboriginal  
fishing for such purposes will only be restricted to achieve a valid  
conservation objective, to provide for sufficient food fish for other  
Aboriginal people, to achieve a valid health and safety objective, or to  
achieve other substantial and compelling objectives.  
[691] Cameron West, a DFO manager, testified that this policy has been used to  
regulate the west coast fishery since August 1993.  
[692] Building on the post-Sparrow policy, Canada’s current policy respecting the  
aboriginal fishery is set out in a policy document entitled “One Fishery For All Of Us”,  
July 2007 (as testified to by David Radford). This document was used to introduce  
the Pacific Integrated Commercial Fisheries Initiative, and it sets out Canada’s policy  
in these terms:  
Achieving a fair, sustainable, integrated commercial fishery on Canada’s west  
coast, in which all commercial participants fish under common and  
transparent rules, is an important priority of Canada’s new government …  
Addressing First Nations’ interests in increasing their participation in  
commercial fisheries, implementing enhanced monitoring and reporting  
measures, and strengthening collaboration among fishing groups to maximize  
benefits of sustainable fisheries are all important pillars to achieving these  
changes …  
The new funding of $175 million over a five-year period will provide for:  
•
First Nations’ participation in integrated commercial fisheries across  
B.C. through voluntary commercial licence retirement (including  
vessels, quota and gear) and capacity building to support  
development of First Nation fisheries enterprises based on best  
practices.  
...  
Fisheries and Oceans Canada is working with commercial fishers and First  
Nations to achieve a future in which the fishery is more economically viable,  
and provides sustainable livelihoods for all participants.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[693] Section 2.4 of the current Integrated Fisheries Management Plans with  
respect to salmon sets out the legal and policy framework with respect to First  
Nations and fisheries as follows:  
2.4  
First Nations and Canada’s Fisheries Framework  
The Government of Canada’s legal and policy frameworks identify a special  
obligation to provide First Nations the opportunity to harvest fish for food,  
social and ceremonial purposes. The Aboriginal Fisheries Strategy (AFS)  
was implemented in 1992 to address several objectives related to First  
Nations and their access to the resource. These included:  
• improving relations with First Nations,  
• providing a framework for the management of the First Nations fishery in a  
manner that was consistent with the 1990 Supreme Court of Canada Sparrow  
decision,  
• greater involvement of First Nations in the management of fisheries, and  
• increased participation in commercial fisheries (Allocation Transfer Program  
or ATP).  
The AFS continues to be the principal mechanism that supports the  
development of relationships with First Nations including the consultation,  
planning and implementation of fisheries, and the development of capacity to  
undertake fisheries management, stock assessment, enhancement and  
habitat protection programs.  
The Aboriginal Aquatic Resources and Oceans Management (AAROM)  
program has been implemented to fund aggregations of First Nation groups  
to build the capacity required to coordinate fishery planning and program  
initiatives. AAROM is focused on developing affiliations between First  
Nations to work together at a broad watershed or ecosystem level – a level at  
which there is a certain number of common interests and where decisions  
and solutions can be based on integrated knowledge of several Aboriginal  
communities. In the conduct of their activities, AAROM bodies are working to  
be accountable to the communities they serve, while working to advance  
collaborative relationships between member communities, DFO and other  
interests in aquatic resource and oceans management.  
As part of the reform of Pacific fisheries, DFO is looking for opportunities to  
increase First Nations participation in new economic fisheries. Treaty  
provisions are likely to provide for economic provisions and new planning  
approaches and fishing techniques will be required to ensure an economically  
viable fishery. In recent years some “demonstration fisheries” have been  
initiated where some of these facets of fisheries of the future have been  
explored. Similar projects are anticipated again in 2007. In the lower Fraser  
River, the Department is also working with First Nations and others with an  
interest in the salmon fishery to have better collaboration of fishery planning.  
[694] Section 4.1.5, of the same document further amplifies Canada’s most recent  
policy with respect to economic opportunities for First Nations as follows:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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DFO has undertaken a series of discussions with First Nations regarding  
fishing for economic purposes to experiment with mechanisms to integrate  
management of fisheries following the negotiations of treaties. These  
fisheries are undertaken with two principles:  
• These fisheries are of the same priority as the commercial fishery.  
• The share of fish harvested by First Nation economic opportunity fisheries  
must be fully mitigated over time by the retirement of commercial salmon  
licences from the commercial fishery.  
[695] With respect to the phrase “mitigation over time by the retirement of  
commercial salmon licences from the commercial fishery”, Paul Ryall had this to say  
in his affidavit:  
With respect to the mitigation through retirement, it is my understanding that  
one of the main objectives of this approach is to avoid negative impacts on  
established fishers. It is believed that this will have positive impacts on First  
Nations by removing significant opposition and a significant obstacle to  
improved First Nation access to economic opportunities. If First Nation  
participation in the commercial fisheries were increased without mitigation, or  
some other management measure such as defined shares, this would make  
fisheries more difficult to manage and achieve conservation and allocation  
objectives.  
[696] Mr. Ryall did not testify at trial. His affidavit evidence was unchallenged.  
[697] The plaintiffs say, with respect to Canada’s policies, that the fisheries policies  
do not provide structure to the Minister’s discretion. As Canada acknowledges,  
fisheries policies serve as a guide for decision-making but do not bind the Minister’s  
statutory discretion. In summary, Canada’s fishery policy ranks allocation of the  
fishery in order of priority: (1) conservation; (2) FSC; and (3) commercial/  
recreational. Canada adheres to a policy of integrated management for each  
species. Canada has numerous policies designed to enhance and support the  
aboriginal commercial fishery, but since Canada does not recognize an aboriginal  
right to fish commercially, any efforts to enhance the aboriginal fishery are only  
offered in a way that does not detrimentally impact the non-aboriginal commercial  
fishery.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
3. Special aboriginal programs  
Page 225  
[698] Notwithstanding that Canada does not recognize an aboriginal right to fish  
commercially, Canada submits that it has implemented a number of specific  
programs to support aboriginal participation in the commercial fishery. It says that  
these programs have been effective and that, as a consequence, the fishery regime  
does not infringe the plaintiffs’ aboriginal fishing rights.  
[699] Mr. West testified with respect to various of these programs. I briefly  
summarize them below based on his evidence. Ultimately, I conclude that these  
special policies and programs have failed to significantly support Nuu-chah-nulth  
participation in the WCVI fishery.  
a.  
Indian Fishermen’s Emergency Assistance Program (IFEAP)  
(1980-1982)  
[700] The mandate of this program was to assist aboriginal fishers with debt and  
financing payments. The program ran for two years. At the time of its termination,  
$2 million in grants had been expended, $200,000 in direct loans provided, and  
$700,000 in loan guarantees extended. Approximately 30% of all assistance was  
provided to Nuu-chah-nulth Tribal Council bands through the Nuu-chah-nulth Board.  
[701] The plaintiffs say that IFEAP provided some financial assistance to individual  
Indian fishermen but the programs ended in 1982. This program, they say, is  
therefore of no relevance to more recent issues concerning access to fishing  
opportunities for the plaintiffs. Moreover, the plaintiffs say that the IFEAP favoured  
established and successful fishermen. I agree that this program is of historic  
significance only.  
b.  
Aboriginal Cooperative Fisheries and Habitat Management  
Program (1994- )  
[702] Announced on June 24, 1991, funds under this program were provided to  
improve fish management and fish habitat, and to help ensure a more stable and  
profitable industry. A multi-year cooperative program provided initial funding of  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 226  
$11 million to enable tribal councils, bands, and native communities to participate in  
a wide range of fisheries and habitat management activities. This program is not  
relevant to actual Nuu-chah-nulth participation in the commercial fishery, but is  
undoubtedly is beneficial to the industry as a whole.  
c.  
Aboriginal Fisheries Strategy (AFS) (1992- )  
[703] Launched in 1992, in part as a response to the Supreme Court’s decision in  
Sparrow, AFS is one of the key DFO programs with respect to aboriginal fisheries.  
The Supreme Court of Canada provided a helpful explanation of the AFS in Kapp, at  
paras. 5-7:  
[5]  
The aboriginal right has not been recognized by the courts as  
extending to fishing for the purpose of sale or commercial fishing: R. v. Van  
der Peet, [1996] 2 S.C.R. 507. The participation of Aboriginals in the  
commercial fishery was thus left to individual initiative or to negotiation  
between aboriginal peoples and the government. The federal government  
determined that aboriginal people should be given a stake in the commercial  
fishery. The bands tended to be disadvantaged economically, compared to  
non-Aboriginals. Catching fish for their own tables and ceremonies left many  
needs unmet.  
[6]  
The government’s decision to enhance aboriginal involvement in the  
commercial fishery followed the recommendations of the 1982 Pearse Final  
Report, which endorsed the negotiation of aboriginal fishery agreements  
(Turning the Tide: A New Policy For Canada’s Pacific Fisheries). The Pearse  
Report recognized the problematic connection between aboriginal  
communities’ economic disadvantage and the longstanding prohibition  
against selling fish - a prohibition that disrupted what was once an important  
economic opportunity for Aboriginals. Policing the prohibition was also  
problematic; the 1994 Gardner Pinfold Report addressed the serious  
conservation issue stemming from a fish sales prohibition “honoured more in  
the breach than the observance” (An Evaluation of the Pilot Sale  
Arrangement of Aboriginal Fisheries Strategy (AFS), p. 3). The decision to  
enhance aboriginal participation in the commercial fishery may also be seen  
as a response to the directive of this Court in Sparrow, at p. 1119, that the  
government consult with aboriginal groups in the implementation of fishery  
regulation in order to honour its fiduciary duty to aboriginal communities.  
Subsequent decisions have affirmed the duty to consult and accommodate  
aboriginal communities with respect to resource development and  
conservation; it is a constitutional duty, the fulfilment of which is consistent  
with the honour of the Crown: see e.g. Delgamuukw v. British Columbia,  
[1997] 3 S.C.R. 1010.  
[7]  
The federal government’s policies aimed at giving aboriginal people a  
share of the commercial fishery took different forms, united under the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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umbrella of the “Aboriginal Fisheries Strategy”. Introduced in 1992, the  
Aboriginal Fisheries Strategy has three stated objectives: ensuring the rights  
recognized by the Sparrow decision are respected; providing aboriginal  
communities with a larger role in fisheries management and increased  
economic benefits; and minimizing the disruption of non-aboriginal fisheries  
(1994 Gardner Pinfold Report). In response to consultations with  
stakeholders carried out since its inception, the Aboriginal Fisheries Strategy  
has been reviewed and adjusted periodically in order to achieve these goals.  
A significant part of the Aboriginal Fisheries Strategy was the introduction of  
three pilot sales programs, one of which resulted in the issuance of the  
communal fishing licence at issue in this case. The licence was granted  
pursuant to the Aboriginal Communal Fishing Licences Regulations, SOR/93-  
332 (“ACFLR”). The ACFLR grants communal licences to “aboriginal  
organization[s]”, defined as including “an Indian band, an Indian band council,  
a tribal council and an organization that represents a territorially based  
aboriginal community”. The communal licence cannot be granted to  
individuals, but an aboriginal organization can designate its use to individuals.  
[704] A June 1992 backgrounder summarized the aim of AFS as increasing  
economic opportunity in Canadian fisheries for aboriginal people while achieving  
predictability, stability, and enhanced profitability for all participants.  
[705] Under the program, individual food permits are no longer issued and, instead,  
AFS fisheries are licensed through communal licences under the Aboriginal  
Communal Fishing Licence Regulations. The benefits of these permits accrue to the  
entire First Nations community, although some bands may designate certain  
individuals to fish. Some communal licences may include the benefits of sale if  
negotiated as part of the agreement. The DFO endeavours to negotiate mutually  
agreeable arrangements with aboriginal groups. Today, approximately 162 of 186  
(87%) eligible First Nations in British Columbia are covered under some form of AFS  
agreement.  
[706] This program has no doubt been of some benefit to some aboriginals. In my  
view, however, it has not been adequate to support meaningful participation by the  
plaintiffs in the commercial fishery.  
d.  
AFS agreements with the Nuu-chah-nulth Tribal Council  
[707] A seven-year framework fisheries agreement was reached on August 20,  
1992, between the DFO and the Nuu-chah-nulth Tribal Council representing 14  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 228  
bands. The agreement included a DFO contribution of up to $1.5 million for Nuu-  
chah-nulth Tribal Council fisheries programs. The Initial Interim Fisheries  
Agreement expired in 2000 and since then, the DFO and the Nuu-chah-nulth Tribal  
Council have entered into nine additional agreements. This program enables the  
Nuu-chah-nulth Tribal Council to operate.  
e.  
Contribution Agreements and Project Funding Agreements  
(1991- )  
[708] The DFO has entered into a series of annual funding agreements both with  
the Nuu-chah-nulth Tribal Council and individual Nuu-chah-nulth Tribal Council  
bands for specific projects. The DFO and the Nuu-chah-nulth Tribal Council have  
from time to time entered into Amending Contribution Agreements to adjust funding  
levels or add funding for additional projects. In 2004, AFS Contribution Agreements  
were revised as Project Funding Agreements. These agreements generally  
provided funding for a 12-month period and since 1991, the agreements have  
provided approximately $20 million to the Nuu-chah-nulth Tribal Council and  
individual Nuu-chah-nulth Tribal Council bands.  
f.  
Fisheries Related Community Meetings and Consultations  
[709] The DFO provides funding specifically for the involvement of representatives  
of the Nuu-chah-nulth Tribal Council and bands represented by the Nuu-chah-nulth  
Tribal Council on various committees and advisory boards related to fishery  
management. The Nuu-chah-nulth Tribal Council also receives funding through their  
Aboriginal Aquatic Resource and Oceans Management agreement to participate in  
the DFO advisory processes.  
g.  
Aboriginal Fisheries Guardians (1992- )  
[710] The Fisheries Guardian Program enables aboriginal groups to participate in  
fisheries management, enforcement, habitat monitoring and protection, and  
assessment activities. The fishery guardian training program was designed under  
the Aboriginal Fisheries Training Committee. Guardian training was introduced as a  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 229  
pilot project, and funding is provided annually to Nuu-chah-nulth fisheries guardians  
and technicians.  
h.  
Voluntary Licence Retirement Program (1992- )  
[711] The Voluntary Licence Retirement Program was announced in December  
1992 as a one-time $7 million program to voluntarily retire commercial salmon  
licence eligibilities and transfer them to aboriginal groups without creating increased  
harvesting pressure on fish stocks  
[712] In the second round of this program, the Licence Retirement Selection  
Committee, composed of representatives from commercial fishing interests and  
aboriginal groups, received 240 applications, and made 33 recommendations for  
licence retirement to the DFO. Under the second round of the program, $2.52  
million was allocated to retire commercial licences. A total of 75 commercial  
licences were retired after the completion of the third round. Twenty-six of the  
retired commercial licences were reissued to aboriginal groups as equivalent  
communal F licences. Two were issued to Nuu-chah-nulth Tribal Council nations.  
Other retired licences were used to provide licence capacity to support economic  
opportunity pilot projects. A 1993 DFO commissioned review confirmed the licence  
retirement program “worked well”.  
[713] I find that this program has also had a limited effect on the plaintiffs’  
participation in the commercial fishery.  
i.  
Allocation Transfer Program (ATP) (1994- )  
[714] ATP was introduced in 1994 as a successor to the Licence Retirement  
Program. It facilitated the voluntary retirement of commercial licences and the  
issuance of licences to eligible aboriginal groups. The initial program had a duration  
of six years, and a total of $42 million was approved for funding.  
[715] ATP licences are issued as communal licences to aboriginal organizations  
rather than individual licences. As of March 31, 2008, 35 of the 38 aboriginal  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 230  
organizations that were eligible received an ATP licence. No licence fee is payable  
for licences issued under the Aboriginal Communal Fishing Licences Regulations,  
including ATP. For profitable fisheries, First Nations have been required to make  
contributions to fisheries co-management. Between 1994 and March 2008, there  
have been 354 transactions to retire licences and quota plus an additional 14  
transactions to acquire commercial fishing vessels; 259 licences were allocated to  
aboriginal organizations throughout coastal British Columbia. The DFO has  
provided for the issuance of a number of licences to the Nuu-chah-nulth Tribal  
Council and member First Nations. These licences are set out in a series of  
Communal Commercial Fisheries Access Sub-Agreements beginning in 1997. After  
1999, ATP licences were specifically designated to particular bands rather than  
generally to the Nuu-chah-nulth Tribal Council.  
[716] The plaintiffs agree that the ATP and its forerunner, the Licence Retirement  
Program, provide some commercial fishing opportunities to First Nations by retiring  
ordinary commercial licences and reissuing licences to First Nations as communal  
“F” licences. However, the plaintiffs say the program is wholly inadequate to meet  
their needs or to begin to accommodate their aboriginal rights for the following  
reasons. First, the plaintiffs say the program is underfunded. Second, the plaintiffs  
say that contrary to Canada’s submission, the ATP does not provide community  
access to commercial fisheries. They submit that if the ATP provides a commercial  
fishing licence to an aboriginal community, the licence can only be fished on one  
vessel. Thus, while the monetary benefits of the licence may flow to the community  
(depending on the terms of use of the licence agreed to by the community and the  
fisher) the actual fishing opportunity is limited to one boat. A single licence cannot  
be split amongst two or more smaller (mosquito) vessels. The plaintiffs also submit  
that licences issued under the ATP must be fished in accordance with the ordinary  
commercial fishery. Fishing must take place at the times and locations that are  
designated by the DFO and which are open to all in that fishery, Nuu-chah-nulth or  
otherwise. The plaintiffs say this is not respectful of the priority nature of aboriginal  
rights and is not responsive to the plaintiffs preferred means of fishing or their wish  
for a community-based fishery. The plaintiffs say the program depends on “willing  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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sellers” to provide licences to the program through the market place. Sellers,  
especially in profitable fisheries like the geoduck fishery, may not exist and the cost  
of acquiring licences severely limits the program. The plaintiffs also contend that the  
number of licences available through the ATP is inadequate. The result, they say, is  
that First Nations, even within the Nuu-chah-nulth Tribal Council itself, must compete  
for the few licences that are available.  
[717] Canada claims that the Nuu-chah-nulth Tribal Council has received 240  
communal fishing licences. The plaintiffs say this is “simply wrong unless Canada is  
counting each annual renewal of an “F” licence as a separate licence.” The plaintiffs  
note that ATP licences have costs associated with their use and that the program is  
not based on aboriginal rights. I agree with the plaintiffs’ submissions.  
j.  
Excess Salmon to Spawning Requirements (ESSR)  
[718] The DFO endeavours to manage salmon stocks in such a way as to achieve  
maximum spawning and to make the best use of the harvestable portion of the  
stock, including priority for FSC fisheries. Excess salmon that cannot be harvested  
in regular fisheries migrate to their terminal spawning areas or to hatcheries, which  
results in increased salmon production. These surpluses can be harvested under  
the ESSR policy, using selective fishing techniques to safely harvest without  
impacting other stocks. The DFO allows preferential access to ESSR opportunities  
to native groups on the west coast for FSC purposes. The DFO’s second priority is  
to provide surplus salmon to local aboriginal groups for harvesting and commercial  
sale; when an aboriginal group declines, the opportunity is offered to the local  
community.  
[719] The plaintiffs say that ESSR fisheries have been conducted at four hatchery  
locations on the WCVI since the early 1900s but that there have been no ESSR  
fisheries for any of them at these four sites (with the sole exception of the  
Mowachaht/Muchalaht) for certain years up to 2001. They submit that ESSR  
fisheries are, by definition, the lowest priority commercial fisheries and thus do not  
accord with the priority nature of aboriginal rights. The plaintiffs say that fish caught  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 232  
up river in the ESSR are less valuable than those caught in the fisheries at the  
mouth of the river or in the ocean.  
[720] The only bands out of the six plaintiffs that have even had a chance to decline  
an ESSR opportunity are the Mowachaht/Muchalaht and the Huu-ay-aht.  
[721] The plaintiffs note that Canada characterizes the participation of the Huu-ay-  
aht and Mowachaht/Muchalaht in ESSR fisheries as occasional. They rely on the  
evidence of Paul Preston, a DFO manager, in this regard. What Mr. Preston actually  
confirmed, according to the plaintiffs, was that Huu-ay-aht had the possibility of one  
small ESSR fishery in one year but otherwise there was no evidence of any other  
ESSR opportunity in their territory and the Mowachaht/Muchalaht did not pursue a  
recent ESSR opportunity for reasons including the low value of the fish. I agree with  
the plaintiffs’ submissions.  
k.  
Pilot Sales Agreements  
[722] The DFO established Pilot Sales Agreements with three Aboriginal  
organizations to test the sale of fish by aboriginal groups along the Somass, Fraser  
and Skeena Rivers. These were intended as interim measures to provide First  
Nations with commercial access to fish pending settlement of treaties. These pilot  
sales agreements were terminated in 2003 following the Provincial Court’s decision  
in Kapp which declared them to be unconstitutional. They were recommenced in  
2004 upon the British Columbia Supreme Court overturning the earlier decision. As  
noted earlier, the Supreme Court of Canada upheld the constitutionality of the  
program.  
[723] The plaintiffs say this program has provided some modest benefits to the non-  
plaintiff Tseshaht and Hupacasath First Nations by allocating them a defined share  
of the returning Somass River salmon fishery and permitting them to sell their catch.  
Despite efforts of individual bands and the Nuu-chah-nulth Tribal Council, Canada  
has refused to extend this program to any of the six plaintiffs or to any species other  
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Page 233  
than salmon. I conclude that this type of program would undoubtedly benefit the  
plaintiffs but was not offered to them.  
l.  
Selective Fisheries First Nations Gear Purchase Program  
[724] Funding under this program was provided to over 50 First Nations to  
purchase selective gear for FSC fishing. The selective fishing funds were provided  
to aboriginal organizations through the AFS.  
m.  
AFS Review (2002)  
[725] A comprehensive review of the AFS was conducted in the spring of 2002.  
The DFO participated in a series of meetings with aboriginal interest groups. These  
meetings included input on the formulation of the proposed Aboriginal Aquatic  
Resource and Oceans Management program, its relationship with the AFS, and  
strategic opportunities within the DFO and other agencies. Many aboriginal  
participants proposed concrete solutions and presented examples wherein  
innovative aboriginal-led strategies were yielding positive results, such as the  
pooling of the AFS with other resources to achieve greater benefits for their  
communities, or working with other First Nations in common fisheries management  
structures. There appeared to be mutual agreement on potential guiding principles  
for addressing the limitations of the AFS. The DFO proposed several initiatives to  
address concerns raised during these discussions; for example, simpler, broader,  
and longer term agreements, and a new Aboriginal Aquatic Resource and Oceans  
Management initiative to provide eligible aboriginal groups with the capacity to better  
participate in areas of DFO responsibility.  
n.  
Aboriginal Aquatic Resource and Oceans Management (AAROM)  
Program (2003)  
[726] AAROM was introduced by the DFO in 2003 following discussions with  
aboriginal groups in response to an increased desire on the part of those groups for  
greater participation in the decision-making processes for aquatic resources and  
oceans management. Implementation was planned for the 2004-2005 fiscal year  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 234  
and the budget was $8 million. The main objectives of the initiative were to: assist  
aboriginal groups in acquiring administrative capacity and scientific expertise to  
facilitate their participation in aquatic resource and oceans management; encourage  
the establishment of collaborative management structures; enhance existing  
collaborative management structures; facilitate sound decision making in advisory  
and other processes; and strengthen relationships through improved information  
sharing. AAROM also supports access to economic opportunities, such as in  
aquaculture and commercial fishing. This program while having considerable merit  
also has not increased participation by the plaintiffs in the commercial fishery.  
o.  
Salmonoid Enhancement Program (SEP)  
[727] SEP was announced in 1975 and implemented in 1977. SEP was intended to  
double production of salmon in British Columbia, restoring salmon runs to historic  
levels. Pre-SEP hatchery facilities were absorbed into the newly formed SEP. In  
addition to hatcheries, other technologies and programs were implemented through  
SEP; for example, the Lake Enrichment Program, the Community Economic  
Development Program, Public Involvement Program and Resource Restoration  
Program. The Community Economic Development Program operates mid-sized  
hatcheries by native and non-native communities while the Public Involvement  
Program supports public education and elementary school programs. Resource  
Restoration focuses on restoring and providing access to spawning and rearing  
habitat for salmon. The programs collectively produce a significant amount of  
harvest, as well as playing an important role in the conservation and protection of  
salmon resources and their habitats.  
p.  
Pacific Integrated Commercial Fisheries Initiative (PICFI) (2007)  
[728] PICFI is an initiative aimed at supporting the long term economic viability of  
the province’s commercial fisheries and the sustainability of fisheries resources,  
while at the same time addressing aboriginal interest in access to commercial  
fisheries. PICFI provides additional funding to First Nations to acquire commercial  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 235  
licences, quotas, vessels and gear for transfer to First Nations through voluntary  
relinquishment by regular licence holders.  
[729] Canada has provided $175 million over a five-year period to implement this  
initiative. Of that amount, $115 million is specifically allocated for the acquisition of  
licences, vessels, quotas and gear. The Nuu-chah-nulth Tribal Council has been  
integrally involved in the consultation and formation of the PICFI program. The  
Tribal Council is part of the PICFI working group, and is one of the first six aboriginal  
organizations to apply to participate in the initiative.  
[730] The plaintiffs contend that PICFI is a recently announced program and has  
provided little or no fishing opportunities to date. They note that any benefits of this  
program are at the present time speculative, and that speculation is no basis upon  
which to justify an infringement of constitutional rights.  
[731] I find that while this program may hold out hope for more success in the  
future, at the present time it is new and untested.  
q.  
New Emerging Fisheries Policy  
[732] This program is designed to develop new commercial markets for species of  
fish that have not traditionally been exploited commercially. The plaintiffs say that  
this policy, introduced in 2001, with the intent of providing First Nations with  
considerable opportunities in fisheries new to commercial fishery, has not yet  
produced a single viable commercial fishery and that Canada has grossly overstated  
its anticipated impact. Canada claims that the percentage of the aboriginal share of  
commercial fisheries will grow as new and emerging species enter the commercial  
market. However, the plaintiffs say, any assertion that new and emerging fisheries  
will have a significant impact is completely at odds with the actual experience to  
date. Of the 24 fisheries classified as new emerging fisheries, none has become a  
viable regular commercial fishery. Mr. Harbo, who has responsibility for this  
program, deposed in his affidavit that these few new species are high risk,  
expensive and rarely lucrative.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
N. Conclusion in Respect to Special Aboriginal Programs  
Page 236  
[733] In conclusion, I find that these programs, while well-intentioned, have not  
significantly supported Nuu-chah-nulth participation in the commercial fishery.  
These programs are designed to incrementally increase aboriginal participation  
without causing negative impacts to established fishers. The fact remains that  
Canada adheres to an integrated management model for each fishery with no  
recognition of the plaintiffs’ aboriginal rights.  
O.  
Analysis of Infringement  
[734] I now turn to consider whether there has been a prima facie infringement of  
the plaintiffs’ aboriginal rights to fish and to sell fish. I do not propose to address the  
various fisheries separately, that is, salmon, halibut, groundfish, herring and  
sardines, and other invertebrates, because the facts that I find applicable to the  
infringement analysis apply equally to the different fisheries. The one exception is  
clams, and I will therefore discuss that particular fishery separately. I will consider  
infringement with respect to the FSC fishery separately, as well.  
[735] I begin by briefly restating the parties’ positions in respect to infringement.  
1.  
Plaintiffs’ position on infringement  
[736] The plaintiffs submit that the legislative scheme, comprising the Fisheries Act  
and its regulations, constitutes an infringement of their aboriginal rights. Specifically,  
they say that the scheme imposes a complete prohibition against the activity that  
forms the basis of their aboriginal rights, and imparts to the Minister an unstructured  
and broad discretion to issues licences in respect of that activity. The plaintiffs rely  
on Adams and Marshall to argue that Nuu-chah-nulth commercial fishing rights are  
not addressed in the fisheries regulatory scheme and that for that reason alone, an  
infringement has been made out. The plaintiffs do continue their infringement  
analysis to also argue that in addition to the legislative infringement, their rights have  
been infringed by the policy and operational measures implemented by the DFO  
since the 1960s which, as a whole, have entrenched a large scale, capital-intensive  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 237  
industrial fishery on the Pacific coast with the effect that the Nuu-chah-nulth have  
fallen out of the fishery and cannot get back in. This they refer to as the policy and  
operational infringement.  
2.  
Canada’s position on infringement  
[737] Canada says that the key issue in the analysis of legislative infringement is  
whether there is a means of ensuring that the exercise of ministerial discretion is not  
unstructured. Canada says that in this inquiry, the Court is not confined to an  
examination of the applicable legislation and regulations but, rather, must also  
consider policies adopted as part of the administrative regime to determine whether  
such structure exists. As noted already, Canada says its “suite” of policies have  
enhanced aboriginal participation in the fishery.  
3.  
Analysis  
[738] As set out in my review of the applicable legal principles, the test for prima  
facie infringement inquires into whether the impugned legislation has the effect of  
interfering with an existing aboriginal right. Following Sparrow, I am to consider the  
following questions: (1) whether the limitation is unreasonable; (2) whether the  
limitation imposes undue hardship; and (3) whether the regulation denies to the  
holders of the right their preferred means of exercising it. I consider the prima facie  
infringement test to require proof of a detrimental effect on the plaintiffs’ exercise of  
their aboriginal rights.  
[739] The plaintiffs contend that Canada, in its regulation of the fisheries, has failed  
to reserve to them sufficient fishing opportunities to accommodate their aboriginal  
rights. Canada, for its part, asserts that its aboriginal fishing strategy and the  
multitude of programs to assist First Nations to participate in the fishery ameliorate  
the effect of the regulatory regime on the exercise of the plaintiffs’ aboriginal rights.  
At the infringement stage, I am concerned only with whether the impugned  
regulatory regime has the effect of meaningfully interfering with the plaintiffs’  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 238  
aboriginal rights. This is a more plaintiff-focussed factual inquiry, whereas the  
justification analysis is more focussed on the defendant.  
[740] I have endeavoured to separate out from the parties’ infringement arguments  
those factors which, in my view, are more appropriately considered in the  
justification analysis. (Some of the evidence reviewed above is relevant to both the  
infringement and justification analysis; for example, the special aboriginal fisheries  
programs. Canada argues that those programs have supported aboriginal  
participation in the fishery, an enquiry that is relevant to the infringement analysis. I  
have concluded that they have not significantly supported Nuu-chah-nulth  
participation. However, Canada also relies on those programs, in part, in its  
submissions regarding justification.)  
[741] I now turn to a review of the two main cases upon which the plaintiffs rely in  
their submissions regarding legislative infringement.  
a.  
R. v. Adams and R. v. Marshall  
[742] In Adams, the accused was charged with fishing unlawfully in Lake  
St. Francis contrary to s. 4(1) of the Quebec Fishery Regulations. A licence was  
unavailable to the accused under those regulations. While a special licence issued  
under a ministerial permit authorizing aboriginal persons to fish for food may have  
been available under s. 5(9), the accused did not apply for such permission. He  
challenged his conviction on the basis that he was exercising an aboriginal right to  
fish.  
[743] Lamer C.J. found that the accused had an aboriginal right to fish for food in  
Lake St. Francis; the question was whether s. 4(1) of the Quebec Fishery  
Regulations constituted an infringement of that right. Lamer C.J. indicated at  
para. 50 that “In order to answer this question the nature of the impact on the  
appellant’s rights from the operation of the provision must be determined, taking into  
account the broader regulatory scheme of which the provision is a part” (emphasis  
added). He then went on to describe the regulatory scheme as follows, at para. 51:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 239  
The basic structure of the government’s regulatory scheme, in terms of its  
application to the appellant, is as follows: under s. 4(1) of the Regulations  
fishing is prohibited absent a licence of the type described in Schedule III.  
Under Schedule III licences are available for sport and commercial fishing  
only; the Schedule does not allow for the issuance of licences for aboriginal  
food fishing. Under s. 5(9) of the Regulations the Minister may, at his  
discretion, issue a special permit to an Indian or Inuk authorizing them to fish  
for their own subsistence. In essence, under the regulatory scheme as it  
currently exists, the appellant’s exercise of his aboriginal right to fish for food  
is exercisable only at the discretion of the Minister.  
[744] The Quebec Fishery Regulations were silent as to how the Minister’s  
discretion was to be exercised.  
[745] Applying the infringement test from Sparrow, Lamer C.J. held that by  
subjecting the exercise of the appellant’s aboriginal rights to a pure act of ministerial  
discretion without explicit guidance, the regulatory scheme infringed his aboriginal  
rights. The scheme both imposed undue hardship on the appellant and interfered  
with his preferred means of exercising his rights. Lamer C.J. contrasted the situation  
with one where a statute confers a broad unstructured administrative discretion  
which may be exercised in a manner that encroaches upon a Charter right. In that  
circumstance, he wrote, the proper judicial course is to find that the discretion must  
be exercised in a manner which accommodates the guarantees of the Charter. At  
para. 54, he continued:  
I am of the view that the same approach should not be adopted in identifying  
infringements under s. 35(1) of the Constitution Act, 1982. In light of the  
Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament  
may not simply adopt an unstructured discretionary administrative regime  
which risks infringing aboriginal rights in a substantial number of applications  
in the absence of some explicit guidance. If a statute confers an  
administrative discretion which may carry significant consequences for the  
exercise of an aboriginal right, the statute or its delegate regulations must  
outline specific criteria for the granting or refusal of that discretion which seek  
to accommodate the existence of aboriginal rights. In the absence of such  
specific guidance, the statute will fail to provide representatives of the Crown  
with sufficient directives to fulfil their fiduciary duties, and the statute will be  
found to represent an infringement of aboriginal rights under the Sparrow  
test.  
[746] Lamer C.J. went on to indicate that the infringement was all the more  
pronounced when it was considered that permits allowing fishing for food with a  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 240  
seine net were not being issued for Lake St. Francis. In the absence of the factual  
possibility of the issuance of a licence that would allow him to exercise his aboriginal  
right to fish for food, Lamer C.J. wrote, the appellant had clearly demonstrated that  
his aboriginal rights had been infringed.  
[747] The other decision upon which the plaintiffs rely is Marshall. Marshall  
involved a claim to a treaty fishing right in defence to a charge under the Maritime  
Provinces Fisheries Regulations, S.O.R./93-55 and the Fishery (General)  
Regulations. At paras. 62-63, Binnie J. set out the circumstances in question:  
The appellant is charged with three offences: the selling of eels without a  
licence, fishing without a licence and fishing during the close season with  
illegal nets. These acts took place at Pomquet Harbour, Antigonish County.  
For Marshall to have satisfied the regulations, he was required to secure a  
licence under either the Fishery (General) Regulations, SOR/93-53, the  
Maritime Provinces Fishery Regulations, SOR/93-55, or the Aboriginal  
Communal Fishing Licences Regulations, SOR/93-332.  
All of these regulations place the issuance of licences within the absolute  
discretion of the Minister. Section 7(1) of the Fisheries Act, R.S.C. 1985, c.  
F-14, so provides:  
7.(1) Subject to subsection (2), the Minister may, in his absolute  
discretion, wherever the exclusive right of fishing does not already  
exist by law, issue or authorize to be issued leases and licences for  
fisheries or fishing, wherever situated or carried on. [emphasis in  
original]  
The Maritime Provinces Fishery Regulations provides that the Minister “may  
issue” a commercial fishing licence (s. 5). The Aboriginal Communal Fishing  
Licences Regulations state as well that the Minister “may issue” a communal  
licence to an aboriginal organization to carry on food fishing and related  
activities (s. 4). The licences described in the Fishery (General) Regulations  
are all discretionary as well, although none of those licences would have  
assisted the appellant in this situation.  
[748] Binnie J. mentioned s. 7 of the Fisheries Act and the Aboriginal Communal  
Fishing Licences Regulations, both of which are components of the regulatory  
regime being challenged in the case at bar. He observed that there was nothing in  
the regulations which provided direction to the Minister with respect to exercising this  
discretionary authority in a manner which respected the appellant’s treaty rights.  
After quoting from Sparrow and Adams, he continued at para. 64:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 241  
... To paraphrase Adams, at para. 51, under the applicable regulatory regime,  
the appellant’s exercise of his treaty right to fish and trade for sustenance  
was exercisable only at the absolute discretion of the Minister. Mi’kmaq  
treaty rights were not accommodated in the Regulations because,  
presumably, the Crown’s position was, and continues to be, that no such  
treaty rights existed. In the circumstances, the purported regulatory  
prohibitions against fishing without a licence (Maritime Provinces Fishery  
Regulations, s. 4(1)(a)) and of selling eels without a licence (Fishery  
(General) Regulations, s. 35(2)) do prima facie infringe the appellant’s treaty  
rights under the Treaties of 1760-61 and are inoperative against the appellant  
unless justified under the Badger test.  
[749] Mirroring the language in Marshall, the plaintiffs in the present case say that  
Canada’s position has and continues to be that no Nuu-chah-nulth commercial  
fishing rights exist. As a consequence, those rights are not addressed in the  
legislative scheme and, on this basis alone, an infringement has been made out.  
[750] Canada responds that the key issue when analysing legislative infringement  
is whether there is a means of ensuring that the exercise of ministerial discretion is  
not unstructured. The Court is not restricted in this inquiry to the legislative scheme,  
but must also consider the relevant administrative scheme. Canada submits that the  
discretionary regime at issue in this case is not unstructured, and that the evidence  
presented is far more comprehensive than that led in Adams and Marshall where  
there was little, if any, evidence before the Court explaining how Canada regulated  
fishing by aboriginal groups. The policies adopted by the DFO, it asserts, overcome  
the infringement alleged by the plaintiffs.  
[751] Canada says that the use of policies as sufficient guidance and structure of  
ministerial discretion was endorsed by the Supreme Court of Canada in Haida  
Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.  
In that decision, the Court examined the scope and content of the government’s duty  
to consult. The passage upon which Canada relies is para. 51, where McLachlin  
C.J., on behalf of the Court, wrote:  
It is open to governments to set up regulatory schemes to address the  
procedural requirements appropriate to different problems at different stages,  
thereby strengthening the reconciliation process and reducing recourse to the  
courts. As noted in R. v. Adams, [1996] 3 S.C.R. 101, at para. 54, the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 242  
government “may not simply adopt an unstructured discretionary  
administrative regime which risks infringing aboriginal rights in a substantial  
number of applications in the absence of some explicit guidance”. It should  
be observed that, since October 2002, British Columbia has had a Provincial  
Policy for Consultation with First Nations to direct the terms of provincial  
ministries’ and agencies’ operational guidelines. Such a policy, while falling  
short of a regulatory scheme, may guard against unstructured discretion and  
provide a guide for decision-makers.  
[Emphasis added]  
[752] The Fisheries Act, on its face, imposes a complete prohibition against the  
activity that forms the basis of the plaintiffs’ aboriginal rights. Pursuant to s. 7 of the  
Act, the Minister’s discretion to issue licences in respect of that activity is absolute.  
Section 22 of the Fishery (General) Regulations confers on the Minister a broad  
discretion to impose licence conditions. While DFO policies certainly provide  
considerable guidance with respect to the exercise of the Minister’s discretion, they  
do not, as Canada itself acknowledges, bind or confine the Minister in his or her  
exercise of that discretion. However, Canada implicitly argues that its policies are so  
firmly entrenched in the operations of the DFO that the absence of such recognition  
in the legislation is of no particular importance.  
[753] I have some difficulty reconciling the infringement analysis in Sparrow and  
Gladstone with the legislative infringement analysis in Adams and Marshall. In my  
view, however, the plaintiffs’ argument (that the failure of the legislative scheme to  
guide the exercise of the Minister’s discretion so as to ensure that their aboriginal  
rights are respected is sufficient to prove infringement) is overly simplistic. What is  
absent from their approach is any consideration of whether the legislative scheme, in  
fact, causes any meaningful diminution in their ability to exercise their aboriginal  
rights. The Sparrow infringement analysis, in my view, mandates an inquiry into  
whether the impugned legislation causes that meaningful diminution. Accordingly,  
although the exercise of ministerial discretion may be unstructured, I consider it  
necessary that that unstructured discretion result in a meaningful diminution of the  
exercise of the aboriginal right in question before an infringement can be made out.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 243  
[754] Moreover, the plaintiffs’ pleadings do not challenge the fisheries legislation  
per se. Rather, they plead Canada’s fishery regime “ha[s] significantly restricted the  
Nuu-chah-nulth’s ability from 1970 to present to exercise their customs, practices  
and traditions associated with harvesting, processing and selling of Fishery  
Resources and Fish Products” (emphasis added). In their response to Canada’s  
demand for particulars they again plead that the policies “have restricted [their]  
ability to exercise their customs ...”. Thus the plaintiffs’ pleadings put in issue the  
detrimental effect of the fisheries legislation on the exercise of their aboriginal rights.  
[755] To illustrate, I turn to the example of clams.  
[756] The plaintiffs claim that the regulatory regime infringes their rights to harvest  
and sell clams. The plaintiffs hold about 70% of all commercial clam licences. As  
will be discussed later in these Reasons, I have found that the members of the  
plaintiff communities who choose to clam for commercial purposes are able, subject  
to conservation measures, to harvest clams consistent with their aboriginal rights.  
Thus, despite the absence of recognition of the plaintiffs’ aboriginal rights in the  
licensing regime for clams, the plaintiffs have not proven that they have experienced  
any meaningful diminution in their ability to harvest clams.  
[757] I conclude that the appropriate infringement analysis in this case involves the  
following enquiries:  
1.  
Does the legislative scheme impart to the Minister an unstructured  
discretion that risks infringing the plaintiffs’ aboriginal rights?  
2.  
Are there policies which operate under the legislative scheme that  
recognize the claimed aboriginal rights, and are they entrenched in a  
way that they could be said to guide the Minister’s discretion?  
3.  
Does the regulatory regime operate in such a way that it meaningfully  
diminishes the exercise of plaintiffs’ aboriginal rights? This last  
question incorporates the three Sparrow questions: is the limitation  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 244  
unreasonable; does it impose undue hardship; and, does it deny the  
holders their preferred means to exercise their rights.  
[758] Starting with the first question, I do conclude, as the plaintiffs submit, that the  
Fisheries Act and regulations impart to the Minister an unstructured discretion that  
risks infringing the plaintiffs’ aboriginal rights. With respect to the second inquiry,  
DFO policies do not presently recognize aboriginal fishing rights outside the context  
of an FSC fishery. It obviously follows that the Minister’s discretion to issue licences  
accommodating aboriginal fishing rights, other than for FSC purposes, is  
unstructured and unconstrained by legislation. I will return to the FSC fishery later.  
For now, I turn to the third inquiry, whether the regulatory regime meaningfully  
diminishes the exercise of the plaintiffs’ aboriginal rights to fish and to sell fish.  
[759] The plaintiffs contend that the policy and operational measures implemented  
by the DFO since the 1960s have entrenched a large-scale and capital-intensive  
industrial fishery on the Pacific coast, with the effect that the Nuu-chah-nulth have  
been excluded from the fishery and are unable to re-enter. Canada, on the other  
hand, contends that it has done much to enhance and facilitate aboriginal  
participation in the fishery through its many policies. Some of those policies and  
Canada’s general approach to aboriginal participation in the fishery are conveniently  
summarized in the executive summary to a DFO document entitled “An Integrated  
Aboriginal Policy Framework”:  
... Fisheries and Oceans Canada (DFO), as the federal agency with primary  
responsibility for oceans and the management and protection of aquatic  
resources, has had increasing involvement with Aboriginal communities since  
the 1990s, particularly in areas where DFO administers the aquatic resources  
and ocean spaces. Supreme Court of Canada (SCC) decisions have  
provided guidance on the nature and scope of Aboriginal and treaty rights  
and of governments’ responsibility to manage natural resources in a manner  
consistent with the constitutional protection provided to Aboriginal and treaty  
rights.  
The fundamental theme of DFO’s Integrated Aboriginal Policy Framework is  
on fostering a respectful and mutually beneficial relationship with Aboriginal  
groups who are seeking a greater share of the fisheries resource, on  
contributing to the growth and well-being of their communities, and on  
providing them with a greater role in integrated aquatic resource and oceans  
management.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 245  
The purpose of the Integrated Aboriginal Policy Framework is to provide  
guidance to DFO employees in helping to achieve success in building on our  
relations with Aboriginal groups. The objective of the Integrated Aboriginal  
Policy Framework is to serve as a guide for DFO employees of the renewal of  
DFO’s Aboriginal policies and programs, to provide strategic policy direction  
for the development of operational guidelines and programs, and to guide  
DFO in discussions and collaboration with other federal agencies, provinces,  
territories, stakeholders and Aboriginal groups.  
This framework recognizes the DFO’s core mandate has broadened  
considerably since earlier SCC decisions such as Sparrow and Marshall and  
now includes new ecosystem-based management responsibilities under the  
Oceans Act, expansion of its presence in inland habitat management,  
Species at Risk Act (SARA) implementation, an aquaculture framework, and  
an increasingly sophisticated approach to science. In addition, DFO must  
continue to take into account new developments in case law.  
The need to renew DFO’s policies and programs as they relate to Aboriginal  
communities has been recognized the Department’s five-year Strategic Plan  
“Our Waters, Our Future” 2005 – 2010. It sets out as a special over-arching  
objective the need to strengthen and foster the relationship between the  
Department and Aboriginal groups through the identification of five-year  
goals. This Integrated Aboriginal Policy Framework builds on and further  
elaborates the objectives of the Strategic Plan through the activities outlined  
in the Action Plan.  
DFO has developed a Sustainable Development Strategy 2007-2009 that  
commits the Department to working with interested partners and resource  
users to drive a cultural shift in decision-making when it comes to fisheries  
and oceans policy. It outlines objectives and commitments for incorporating  
sustainable development into daily work.  
The Integrated Aboriginal Policy Framework is intended to provide a context  
of DFO’s Aboriginal experience, its program and policy evolution and current  
state of play in helping to meet DFO’s key objectives.  
The Integrated Aboriginal Policy Framework further elaborates the objectives  
... It cuts across various sector-based legislation, regulations, policies and  
programs, including the Oceans Strategy, Fisheries Management renewal,  
and the way forward on Pacific and Atlantic integrated commercial fisheries  
with all harvesters (Aboriginal and non-Aboriginal), fishing under common  
and transparent rules.  
[Emphasis in original]  
[760] The policy document goes on to refer to the “Our Waters, Our Futures” 2005-  
2010 Strategic Plan, and reads, in part, as follows:  
The Strategic Plan calls for the development of a fully integrated  
departmental policy and program approach. It sets out as a special over-  
arching objective, the need to strengthen and foster the relationship between  
the Department and Aboriginal peoples.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 246  
The Strategic Plan further identifies the following five-year goals for  
maintaining and strengthening relationships between DFO and Aboriginal  
groups:  
1.  
Enhance the involvement of Aboriginal groups in fisheries  
management decision-making processes using a model of shared  
stewardship in which Aboriginal groups collaborate with eh  
Department in decision-making.  
2.  
Increase the involvement of Aboriginal groups in the decision-making  
processes in other areas of DFO’s responsibility including integrated  
oceans management, species at risk, habitat management, scientific  
research and aquaculture development.  
3.  
4.  
Improve the stability of the west and east coast fisheries by resolving  
commercial access issues.  
Continue to manage the fisheries in a manner that is consistent with  
the constitutional protection provided to Aboriginal and treaty rights by  
Section 35 of the Constitution Act, 1982 and the Fisheries Act.  
5.  
Contribute to the broader Government of Canada objective of greater  
economic development for First Nations by assisting with greater  
access to economic opportunities, such as commercial fishing.  
This Integrated Aboriginal Policy Framework builds on and further elaborates  
on the objectives of DFO’s Strategic Plan.  
An Integrated Aboriginal Policy Framework  
The Vision  
Supporting healthy and prosperous Aboriginal communities through:  
• building and supporting strong, stable relationships;  
• working in a way that upholds the honour of the Crown; and  
• facilitating Aboriginal participation in fisheries and aquaculture  
and associated economic opportunities and in the management  
of aquatic resources.  
[761] This policy illustrates the division between the parties’ positions. The plaintiffs  
say that no amount of consultation aimed at facilitating their interests will allow them  
to achieve sustainable participation in the fishery so long as it is not premised on the  
recognition of their aboriginal rights. Canada’s position reflects an incrementally  
supportive enhancement of aboriginal participation in the fishery, but does not  
acknowledge the existence of aboriginal rights.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 247  
[762] It is not necessary to examine each component of Canada’s regulatory  
regime individually to determine whether it infringes the plaintiffs’ aboriginal rights:  
Gladstone. The components of the regime operate in a comprehensive and  
integrated manner, and it is the overall impact on the plaintiffs’ rights that is  
important. It is sufficient for present purposes to recognize that the DFO’s regulatory  
scheme is characterized by the following:  
a.  
b.  
c.  
d.  
e.  
f.  
licensing and limited entry;  
transferability of licences or licence eligibilities;  
quotas;  
species-specific licensing;  
gear restrictions;  
area restrictions;  
g.  
h.  
time-limited openings; and  
recognition of aboriginal FSC fisheries.  
[763] As well, Canada endorses an integrated commercial fishery model, as  
summarized in a July 2007 policy document tellingly entitled “One Fishery For All of  
Us”. As that policy document explains, “Achieving a fair, sustainable, integrated  
commercial fishery on Canada’s west coast, in which all commercial participants fish  
under common and transparent rules, is an important priority of Canada’s new  
Government ...”. The current Integrated Fisheries Management Plan with respect to  
salmon, for instance, indicates that the share of fish harvested by First Nations  
economic opportunity fisheries must be “fully mitigated” over time by the retirement  
of commercial salmon licences from the commercial fishery. Fisheries Manager,  
Mr. Ryall explained that one of the primary objectives of this approach was to avoid  
negative impacts on established fishers. Thus, Canada’s stated policy of  
encouraging economic opportunity in the fisheries for First Nations is constrained by  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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its view that any such commercial fishing opportunities not be at the expense of non-  
aboriginal fishers.  
b.  
Plaintiffs’ preferred means of exercising their aboriginal right  
[764] Part of the third inquiry, proof of meaningful diminution, requires the Court to  
examine whether the impugned fisheries regime denies to the plaintiffs their  
preferred means of exercising the aboriginal rights.  
[765] Few authorities specifically address what is meant by “preferred means” in  
the context of the infringement analysis. Sampson is one. The appellants in that  
case were caught gill net fishing in Ladysmith Harbour on Vancouver Island, a  
location in which they had an aboriginal right to fish. Fishing by net in the Harbour  
was prohibited, but trolling was permitted upon issuance of a permit. On the  
question of whether the prohibition on fishing by net interfered with the appellants’  
preferred means of exercising the aboriginal right, the Court referred to evidence  
that until recent years, the Chemainus Band had caught salmon in the Ladysmith  
Harbour area through use of weirs, by clubbing, hooking or gaffing, and by means of  
a gill net. These, the Court held, were the Band’s preferred means of fishing. The  
regulations prevented them from fishing by any of those means in Ladysmith  
Harbour, and on issuance of a permit, they were restricted to trolling, which was not  
their preferred method of fishing.  
[766] The appellants in R. v. Seward, 1999 BCCA 163, 66 B.C.L.R. (3d) 49, had an  
aboriginal right to hunt deer for sustenance and ceremony. The appellants had been  
convicted of hunting deer with a firearm during prohibited hours (at night) contrary to  
the Wildlife Act, S.B.C. 1982, c. 57. At issue was whether legislation which  
prohibited one method of hunting was a prima facie breach of the broader right to  
hunt. The trial judge had concluded that the appellants were denied their preferred  
means of exercising their right because they were deprived of a method which was  
more convenient to them. Ryan J.A., for the Court, explained:  
[39]  
The Supreme Court justice held that the trial judge misinterpreted the  
meaning of “preferred means”. The Supreme Court justice held that “The  
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definition of ‘preferred’ does not ... incorporate elements such as what the  
respondents chose to do because of the availability of a ride, or that they  
could kill deer faster.” He said (at para. 71):  
“Preferred” must be considered in the cultural context of the  
aboriginal right to hunt to which the Penelakuts were entitled.  
There is academic speculation that the Penelakuts might have  
followed the traditions of other coastal tribes. However, the  
evidence does not support any conclusion that night hunting  
was the Penelakuts preferred means of exercising the right to  
hunt. The most that can be taken from the evidence is, as  
noted by the trial judge, that night hunting with lights was not  
“precluded” as being a part of the Penelakut culture.  
[40]  
On this appeal, the appellants accepted that the Supreme Court  
justice correctly identified the error of the trial judge in defining “preferred  
means” as an individual choice. The appellants accepted that “preferred  
means” are established at the community level (R. v. Sampson (1995), 67  
B.C.A.C. 180 at p. 194). The appellants submitted that the Supreme Court  
justice was wrong however, in the meaning he gave to the phrase. The  
appellants submitted that he erred in looking only to the methods of hunting  
which existed at the time of contact rather than the customs and practices of  
the Penelekut people as they have evolved over time.  
[41]  
In my view the Supreme Court justice did not err in examining the  
methods the Penelekut used for hunting at the time of contact. In the  
passage I have quoted above the Supreme Court justice was simply pointing  
out that the appellants had not established that night hunting was ever a  
“preferred means”. The appellants are right when they say that traditions  
evolve over time and that it must be present day practices that are examined.  
The point here is that the evidence established Penelekut hunters were  
known to hunt at night on occasion but that such activity had never reached  
the level of a preferred means.  
[767] I additionally note that in Gladstone, the Court, in considering infringement,  
compared the Heiltsuk’s ability to harvest herring spawn-on-kelp prior to the arrival  
of Europeans in North American and subsequent to the enactment of Canada’s  
regulatory scheme in concluding that the latter infringed their aboriginal rights.  
[768] It follows from these authorities that “preferred means” connotes more than  
the literal meaning of those words. Rather, it refers to the aboriginal community’s  
preferred means of exercising the particular aboriginal right in question, which in turn  
is determined by reference to the ancestral practices, customs or traditions integral  
to the distinctive culture of the claimant’s pre-contact society as they have evolved.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[769] Turning to the present case, the plaintiffs submit that DFO regulations and  
policies have prevented them from exercising their aboriginal rights by their  
preferred means. They characterize their preferred means as community-based,  
localized fisheries involving wide community participation and using small, low cost  
boats. They say this is a fair characterization of Nuu-chah-nulth fisheries of the past,  
as has been discussed earlier in these Reasons, and is reflected in the evidence of  
the individual Nuu-chah-nulth witnesses. The plaintiffs also contend that they have  
attempted to maintain this type of fishery but have been frustrated in doing so by the  
forces of the industrial fishery and DFO policies. The DFO’s adherence to an  
integrated fishery, they say, prevents it from implementing measures to facilitate  
fishing opportunities for the plaintiffs that provide for a community-based multi-  
species fishery.  
[770] With the development of limited entry and the industrial fishery, Nuu-chah-  
nulth communities attempted to maintain their participation in the commercial fishery  
through a mosquito fleet of smaller, unlicensed vessels. The evidence is that fishers  
in the mosquito fleets who did not have their own licences caught fish and then sold  
them through fishers who did have the appropriate licences. While they lasted, the  
mosquito fleets enabled Nuu-chah-nulth members who no longer had commercial  
licences to sell their fish to earn a moderate income. As the number of Nuu-chah-  
nulth members who held commercial licences declined, however, this method  
became less of an option.  
[771] Chief Edward Jack testified that in the mid-1980s, the Mowachaht/Muchalaht  
Band Council looked into the possibility of purchasing a mosquito fleet licence for  
use by fishers with small boats but that the licence was too expensive. In 1985, the  
Ucluelet Band Council requested issuance of temporary commercial licences for use  
by small vessels, the majority of which measured less than seven meters. That  
request was also not accommodated by the DFO. As discussed in the review of  
Dr. Hall’s evidence, the Ahousaht First Nation made a proposal in 1997 to split five  
gillnet licences into 30 licences on a tonnage basis in order to legalize their mosquito  
fleet fishery. The DFO did not approve the proposal.  
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[772] Evidence was also led with respect to the Somass Pilot Sales fishery. This  
pilot has provided a modest community fishery for two Nuu-chah-nulth groups,  
neither of which is a plaintiff in this phase of the trial. Dr. Hall explained how the  
Nuu-chah-nulth had made unsuccessful proposals to the DFO in the early 1990s to  
extend pilot salmon sales to other locations and First Nations.  
[773] The Nuu-chah-nulth have also made various other proposals for alternative  
fisheries, both within existing policies and through requests for reform of DFO  
policies. Some examples include:  
a.  
In 1994, the Nuu-chah-nulth Tribal Council requested that the DFO  
establish pocket fisheries for herring stocks in the Kyuquot Sound  
area.  
b.  
In approximately 1994, the Nuu-chah-nulth Tribal Council pursued one  
communal commercial licence for rockfish for each Nuu-chah-nulth  
First Nation to be operated on more than one vessel per First Nation in  
order to facilitate involvement of a small boat fleet. The DFO did not  
approve licence splitting of this sort.  
c.  
In the last several years, Dr. Hall has raised the possibility of splitting  
halibut quota to facilitate community fisheries and broaden participation  
by Nuu-chah-nulth members.  
[774] While the Aboriginal Communal Fishing Licensing Regulations have the  
potential to permit community-based fishing based on communal licences,  
Mr. Radford testified that in practice, a very limited range of licensing measures for  
commercial fisheries have actually been implemented by the DFO since the  
introduction of those regulations. He discussed the idea of licence splitting or trap-  
sharing, and, while confirming that such measures are possible, indicated that the  
DFO is unlikely to facilitate such measures.  
[775] Canada’s policies reflect its adherence to an integrated fisheries model,  
whereby all participants in the commercial fisheries must be treated identically. This  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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precludes the plaintiffs from developing community-based fisheries in their own  
territories. Those with commercial licences must fish in the mainstream commercial  
fishery, and can only fish in management areas in which the DFO opens the fishery  
to all licensed vessels, regardless of whether those management areas are within  
Nuu-chah-nulth territory.  
[776] In light of the foregoing, I conclude that Canada’s regulatory regime denies  
the plaintiffs their preferred means of exercising their aboriginal rights.  
c.  
Undue hardship  
[777] The second Sparrow question that I consider part of the meaningful  
diminution analysis is whether the impugned regime imposes undue hardship on the  
plaintiffs’ exercise of their aboriginal rights. Although the plaintiffs allege that DFO  
policies and operational restrictions impose undue hardship upon them, they do not  
specifically articulate how. Nevertheless, it is implicit in their submissions that their  
position is that the severe restrictions that the regulatory regime imposes on their  
fishing opportunities create an undue hardship. The evidence, they say,  
demonstrates that their communities have suffered acutely from the decline in their  
fishing opportunities.  
[778] “Undue hardship” implies more than mere inconvenience: Nikal, at para. 100.  
In that decision, Cory J. contrasted a requirement for a licence that was freely and  
readily available with one where a licence was accessible only at great  
inconvenience or cost. The former did not constitute an undue hardship; the latter  
might well.  
[779] The evidence in the present case establishes that the cost of commercial  
licences is out of reach for the plaintiffs. As described by Mr. Wood, those costs  
range from $170,000 to $200,000, which together with the cost of equipment, would  
bring the total cost to license and equip a fishing vessel to a cost in the order of  
$600,000. Another example of the prohibitive cost of licences is the geoduck  
fishery. Mr. Frank testified that the geoduck fishery is a “stone’s throw away” from  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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the Ahousaht village; however, the Ahousaht cannot harvest this resource because  
they cannot buy a licence. The cost of such a licence, even if one were available, is  
well in excess of $1 million.  
[780] Not only are the costs of commercial licences prohibitive, but the plaintiffs’  
overtures to the DFO with respect to modified or split licences have not been  
positively received, as discussed above.  
[781] The fact that the current regulatory regime has caused undue hardship for the  
plaintiffs is graphically demonstrated by the compelling evidence in this case that the  
participation of the Nuu-chah-nulth in the WCVI fishery has diminished to the point  
that there are almost no fishers left in those communities. I have no hesitation in  
concluding that the regulatory regime has imposed undue hardship on the plaintiffs.  
d.  
Is the limitation unreasonable?  
[782] The third Sparrow question to be addressed here is not whether the  
impugned legislation is unreasonable, but whether the limitation it creates is an  
unreasonable infringement: Seward, at para. 46. Seward addressed whether a  
statutory restriction on hunting at night infringed the aboriginal right to hunt deer for  
sustenance and ceremony. Ryan J.A. held that when measured against the  
standard of safety which had been a tradition in the particular aboriginal group’s  
culture, legislation which prohibited hunting at night with a rifle and illumination could  
not be said to be an unreasonable limitation of the aboriginal right.  
[783] Sampson provides another illustration. The appellants were caught gill net  
fishing in Ladysmith Harbour, a location where they had an aboriginal right to fish for  
food. Fishing by net in the area was prohibited, but fishing by trolling was permitted  
upon application for a permit. A permit would have been issued to the appellants  
upon their request. In concluding that the prohibition against fishing by net at that  
location was not unreasonable, the Court noted that while fishing by trolling would  
not have been productive because chum salmon do not readily take a lure, a supply  
of other chum salmon would have been available to the appellants from the surplus  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 254  
stocks at other nearby rivers or the hatchery near Chilliwack. Further, had the  
appellants applied for and obtained an Indian food fish permit for Ladysmith  
Harbour, they would have been entitled to catch four coho salmon per day by trolling  
throughout the year.  
[784] Returning to the present case, the plaintiffs have not specifically explained  
how the limitations created by the regulatory regime are unreasonable. Again,  
however, it is implicit in their submissions that their position is that Canada’s rigid  
adherence to an integrated fishery has prevented it from implementing measures  
that would facilitate fishing opportunities for the plaintiffs, and that such limitation is  
unreasonable.  
[785] In contrast to the situation described in Sampson, it is not open to the  
plaintiffs to fish in other locations nearby. They have sought DFO approval for  
measures such as split licences but have not had their proposals approved. I find  
that the regulatory regime imposes an unreasonable limitation on the exercise of the  
plaintiffs’ aboriginal rights.  
e.  
Conclusion on infringement  
[786] I pause here to acknowledge that to the extent that some aboriginal fishers  
have been able to continue in the fishing industry with some economic success, it  
could be argued that the regulatory regime is not the cause of the lack of aboriginal  
participation. Undoubtedly, factors that I have described above, including the  
collapse of the salmon stock, changes in equipment, the reduction in the price of  
fish, the closure of local fish buying businesses, environmental factors, international  
treaties, and conservation imperatives have all contributed to drive the plaintiffs out  
of the fishing industry.  
[787] The licensing regime is not entirely responsible for the plaintiffs’ non-  
participation in the fishery. I have mentioned several times, however, the evidence  
that there are now only three or four full-time Nuu-chah-nulth fishers compared to 70  
or 80 who fished in 1992. I concluded that as late as the early 1990s and possibly  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 255  
up until the collapse of the salmon fishery in 1995, there remained a somewhat  
active Nuu-chah-nulth commercial fishing fleet. The point I make is that if the fishery  
had remained as healthy and abundant as in previous decades, the Nuu-chah-nulth  
may have been able to compete, even within the existing licence regime. Put  
another way, there are other causes besides the impugned regulatory regime for the  
lack of Nuu-chah-nulth participation in the WCVI fishery. In my view, however, it is  
sufficient for the present analysis that the plaintiffs have proven that the regulatory  
regime as it currently exists prevents them from exercising their aboriginal rights by  
their preferred means through the imposition of unreasonable limitations that create  
undue hardship for them. That is not altered by the fact that the regulatory regime  
has evolved over time in response to such factors as changes in the fishery,  
conservation requirements and advances in scientific knowledge.  
[788] It is indisputable that the plaintiffs cannot fish and sell their fish as they  
previously did, in part, because of Canada’s regulatory regime. It is impossible for  
the plaintiffs to pay the large amounts the market sets for licences, and they are  
simply unable to compete in an economically sustainable way in the non-aboriginal  
fishery under the present regulatory regime. I am satisfied of that evidence.  
[789] Canada’s stated policy of encouraging economic opportunity in the fisheries  
for First Nations is constrained by its view that any such commercial fishing  
opportunities must not be at the expense of non-aboriginal fishers.  
[790] The plaintiffs assert in this lawsuit an aboriginal right to sell their fish  
commercially. Although Canada has many programs designed to enhance  
commercial fishing opportunities for aboriginal fishers, fundamentally Canada does  
not recognize the right of those fishers to fish and to sell their fish commercially as  
an aboriginal right. Canada argues that the plaintiffs are the beneficiaries of these  
special programs that protect and enhance their participation in the commercial  
fishery. However, I am satisfied that these programs have been largely ineffective in  
assuring the plaintiffs’ reasonable participation in accordance with their preferred  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 256  
means in the commercial fishery. Indeed, those programs have not succeeded in  
maintaining even a modest native commercial fishery.  
[791] I conclude that the plaintiffs have proved that Canada’s fisheries regulatory  
regime prima facie infringes their aboriginal rights to fish and to sell fish by their  
preferred means, both legislatively and operationally. I exclude the clam fishery and  
the FSC fishery from this conclusion.  
f.  
Clam fishery  
[792] I now turn to the clam fishery and the question of infringement as it relates  
solely to that fishery. Intertidal clams became a limited entry fishery in 1998  
following a consultative process commenced in the mid-1990s. Commercial access  
to the fishery was restricted to those licence holders who had held licences in five of  
the six years between 1989 and 1994. Z2 commercial clam licences were issued to  
those qualifying under the licence limitation criteria.  
[793] Recognizing that First Nations would be almost entirely shut out of the clam  
fishery by these licence limitations, the DFO negotiated measures to secure the  
participation of First Nations through the provision of aboriginal commercial licences  
(“ACL”), as well as the establishment of pilot programs for exclusive First Nations  
harvesting on beaches fronting or adjacent to reserves.  
[794] ACLs are communal licences issued under the authority of the Aboriginal  
Communal Fishing Licences Regulations, and were developed to recognize  
historical First Nations representation in the fishery. A “Z2” ACL clam licence  
provides the same access to the clam fishery as all other Z2 licences except that it is  
communally held by a First Nation, who then designates their preferred members to  
exercise the licence. Thus, on an annual basis, aboriginal bands are allotted a  
quantity of Z2 ACL licences; each band then allocates the Z2 ACL licences to  
individual members who conduct the harvest and sell their catch. The cost of a  
Z2 ACL licence is $90; $30 for the clam licence and $60 for a mandatory Fishers  
Registration Card.  
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Page 257  
[795] At the time that clams became a limited entry fishery, the DFO provided 564  
ACLs for First Nations throughout the province. The licences were allotted to each  
First Nation based roughly on what was known of the history of the individual band’s  
clam digging activities and a measure of common sense. The goal was to have  
approximately 50% aboriginal participation in the clam fishery. Of the total 564  
ACLs, 237 were given to various Nuu-chah-nulth groups on the WCVI: the  
Ahousaht have 70; the Ehattesaht have 24; the Hesquiaht have 6; the Mowachaht-  
Muchalaht have 7; and the Tla-o-qui-aht have 16.  
[796] Additionally, 96 Z2 commercial clam licences were issued for the WCVI,  
totalling 333 licences in Management Area F. Of these 96 Z2 licences,  
approximately 30-40 are held by Nuu-chah-nulth Tribal Council individuals. Holding  
237 of the total 333 clam licences for Area F, the Nuu-chah-nulth have just over 70%  
of the licence eligibilities. When the Z2 licences held by Nuu-chah-nulth members  
are factored in, the number is closer to 80% of the total licence eligibilities for the  
management area.  
[797] It is rare for any of the plaintiff bands to use all of the Z2 ACLs allotted to it for  
each year, as set out below:  
First Nation  
Ahousaht  
Eligibility  
2007  
32  
11  
6
2006  
37  
24  
5
2005  
47  
23  
6
2004  
69  
23  
3
2003  
58  
24  
4
2002  
52  
22  
6
2001  
52  
24  
6
2000  
65  
17  
6
1999  
61  
20  
4
1998  
55  
12  
4
70  
24  
6
Ehattesaht  
Hesquiaht  
Mowachaht  
Tla-o-qui-aht  
TOTAL  
7
3
7
3
4
5
3
1
2
2
4
16  
123  
3
13  
86  
12  
91  
16  
115  
16  
107  
16  
99  
16  
99  
14  
104  
13  
100  
13  
88  
55  
[798] From time to time, different First Nations have requested additional clam  
licences; for instance, the Tla-o-qui-aht did so in April 2004. The DFO declined the  
request on the basis that the clam fishery was oversubscribed and could not support  
any new licences.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 258  
[799] Collaborative mechanisms such as clam boards have been established to  
improve consultation between the various stakeholders in the fishery. The primary  
consultative body for intertidal clams in the south coast area is the Pacific Region  
Clam Management Committee. A Pacific Region Integrated Fisheries Management  
Plan with respect to intertidal clams governs management of the fishery.  
[800] Clams are harvested by hand during low tide cycles throughout the year and  
require only a rake to harvest.  
[801] None of the foregoing evidence is controversial and I accept all of it.  
g.  
Infringement analysis in respect to clams  
[802] Z2 ACL licences are issued under the authority of the Aboriginal Communal  
Fishing Licences Regulations. Section 4 of the Regulations provides that the  
Minister may issue a communal licence to an aboriginal organization to carry on  
fishing and related activities. The Regulations do not set out criteria regarding the  
issuance of communal licences, with the result that the allocation of such licences is  
a discretionary act. On a strict application of Adams and Marshall, this alone would  
constitute a prima facie infringement of the plaintiffs’ aboriginal rights. However, as I  
explained earlier, it is necessary, in my view, to engage in a factual analysis to  
determine whether the regulatory regime meaningfully diminishes the aboriginal  
rights in question.  
[803] The evidence of the Nuu-chah-nulth witnesses who do earn money from  
commercial clamming is that the work is physically hard but that the fishery is not  
very lucrative. However, I did not hear evidence that the regulatory regime  
unreasonably limits their ability to earn income from this fishery.  
[804] The Nuu-chah-nulth hold approximately 70% of the total clam licence  
eligibilities for the relevant management area. More significantly, as of 2007, none  
of the plaintiff bands were using more than half of the licence eligibilities that had  
been allocated to them. Moreover, the cost of a Z2 ACL licence is a modest $90.  
This being the case, there is no limitation at all on the present exercise by the  
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Page 259  
plaintiffs of their aboriginal rights with respect to the harvesting of clams, let alone  
one that is unreasonable, imposes undue hardship or interferes with their preferred  
means of exercising their aboriginal right. The existing regulatory regime has no  
apparent adverse effect on the plaintiffs’ aboriginal rights in the context of the clam  
fishery. Accordingly, I find no prima facie infringement of their rights in regard to  
inter-tidal clams. For clarity, this finding applies only to clams, and not to other  
shellfish or geoduck.  
h.  
FSC fishery  
[805] FSC licences are issued under the authority of the Aboriginal Communal  
Fishing Licences Regulations, discussed above. Fisheries management controls for  
the FSC fishery are set out in multi-species licences according to area, species,  
quantity, dates, times, gear, and other conditions where applicable. Broadly  
speaking, FSC fishing is permitted as follows.  
[806] Fishing is open throughout the year. Any type of vessel may be used,  
including small boats. One restriction on vessel-type is that if FSC fishing is  
conducted with a vessel larger than 30 feet, or with one equipped with commercial  
fishing gear, the First Nation must designate the vessel and advise the DFO in  
advance in order to distinguish it from the regular commercial fleet. FSC fishing is  
permitted within wide management areas, broadly intended to represent areas that  
were historically used by the particular First Nation. There are few gear restrictions  
on FSC fishing. If nets or traps are used, they must be marked with the name of the  
participant and First Nation in order to ensure that the DFO is aware they are being  
used for FSC fishing. Fishing for and retaining FSC groundfish under the authority  
of a communal FSC licence is permitted while commercial fishing for groundfish  
under a valid commercial licence. This provides for FSC and commercial fishing on  
the same trip. FSC allocations (or maximum harvest levels) are set out in a variety  
of ways applicable to each fishery, such as maximum pounds or number of  
mammals. Catch monitoring of the quantity of fish harvested under FSC fishing are  
to be reported on a quarterly basis to the DFO.  
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Page 260  
[807] Aboriginal groups sometimes coordinate their fishing efforts by using a seine  
boat to fish at a time and location when and where fish are abundant. Nuu-chah-  
nulth Tribal Council member bands have arranged for this type of coordinated  
harvest in Barkley Sound for sockeye salmon.  
[808] It was, and remains, the DFO’s intent to reach negotiated comprehensive  
fisheries agreements with each First Nation in the province regarding the terms and  
scope of its FSC fishing. To date, the DFO has reached such agreements with 37  
aboriginal organizations representing 54 individual First Nations, all of which contain  
an FSC schedule. The DFO has also reached comprehensive fisheries agreements  
with 17 aboriginal organizations that do not contain a FSC schedule. So far, the  
Nuu-chah-nulth Tribal Council has remained with the old style format of framework  
agreements, sub-agreements and project funding agreements under the Aboriginal  
Fishing Strategy.  
[809] The plaintiffs submit that their aboriginal right to fish for FSC purposes is  
legislatively infringed by the fisheries regime. They further cite various policy and  
operational infringements of that right, specifically: (1) the DFO has not responded  
to Nuu-chah-nulth Tribal Council requests for increased allocations of fish for  
inclusion in communal licences; (2) although aboriginal food fishing should be  
accorded first priority after conservation, DFO management measures do not ensure  
that this is actually the case for the plaintiffs; and (3) restrictions on Nuu-chah-nulth  
participation in the commercial fishery create obstacles to their access to the food  
fishery, principally, their inability to afford boats to use in the exercise of their food  
fishery rights.  
[810] Canada’s response to the plaintiffs’ claim of legislative infringement is that the  
Aboriginal Communal Fishing Licence Regulations and comprehensive DFO policies  
provide explicit guidance for the exercise of ministerial discretion. These policies, it  
says, ensure that the exercise of discretion is principled and consistent with  
practices which accommodate the plaintiffs’ rights.  
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Page 261  
[811] Canada also disputes the policy infringements alleged by the plaintiffs. It  
says that the plaintiffs have not led evidence to establish any particular level of FSC  
needs, and that according to available catch reports, the Nuu-chah-nulth bands have  
reported FSC catch levels significantly lower than their current FSC allocations.  
Contrary to the plaintiffs’ submission that DFO management measures do not  
ensure their priority after conservation, Canada says that its measures do ensure  
this is the case. It further points to a variety of DFO management activities which it  
says demonstrate the DFO’s commitment to realizing the objective of FSC  
harvesting as the first priority after conservation. Finally, Canada submits that the  
plaintiffs have not demonstrated on the evidence that their FSC needs are not  
satisfied, and says that no government policy interferes with their right to fish  
species opportunistically for FSC purposes using their preferred means.  
[812] I earlier expressed my view that the plaintiffs take an overly technical position  
in arguing that their FSC rights are legislatively infringed through the current  
fisheries regime. Although the legislative regime confers absolute discretion on the  
Minister, DFO policies do firmly incorporate the proposition that the aboriginal food  
fishery is to be accorded first priority after conservation. In my view, these policies  
are sufficiently entrenched to guide the Minister’s discretion such that the concerns  
expressed in Adams and Marshall are not live ones here.  
[813] FSC licences are issued under the authority of the Aboriginal Communal  
Fishing Licences Regulations, which have been discussed elsewhere. Over the  
years, the DFO has developed a substantial number of policies that either directly  
address or touch upon the FSC fishery. These include:  
• Policy for the Management of Aboriginal Fishing;  
• National Procedural Guidelines for Enforcement of Aboriginal Fishing  
for FSC Purposes;  
• Guidelines Respecting the Issuance of Licences under the ACFLRs;  
• Escapement Surplus to Spawning Requirements Policy;  
• Allocation Policy for Pacific Salmon;  
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• Integrated Fisheries Management Plans;  
• Pacific Guidelines on Changes to Shellfish Management Plans to  
Address Requests by First Nations Regarding Harvesting for FSC;  
• First Nations Access to Fish for FSC Purposes Part 1: Pacific Regional  
Operational Framework;  
• First Nations Access to Fish for FSC Purposes Part 2: Pacific Region  
Evaluation and Decision Framework;  
• First Nations Access to Fish for FSC Purposes Part 2A: Pacific Region  
Evaluation and Decision Framework, Request for Allocation Change;  
• First Nations Access to Fish For FSC Purposes Part 2B: Pacific  
Regional Evaluation and Decision Framework, Request for FSC  
Fishing Area Change to Facilitate FSC Access;  
• First Nations Access to Fish for FSC Purposes Part 2C: Pacific  
Regional Evaluation and Decision Framework, Request for  
Commercial and/or Recreational Closure to Facilitate FSC Access; and  
• Integrated Aboriginal Policy Framework: 2005-2010.  
[814] Canada has expressly acknowledged and affirmed in policy that aboriginal  
FSC fishing has first priority after conservation, including, for instance, in its “Policy  
for the Management of Aboriginal Fishing” of August 1993. Under the heading  
“Aboriginal Fishing”, the policy document reads:  
Taking into account the current state of the law on Aboriginal fishing rights,  
DFO has adopted the following policies related to Aboriginal fishing:  
•
Aboriginal fishing should occur within the areas that were used historically by  
the aboriginal group or First Nation.  
•
Aboriginal fishing opportunities will be provided to the First Nation having  
historical use and occupancy of the area in question. The First Nation will  
administer the fishing opportunities for the benefit of its members collectively  
rather than individually.  
•
Aboriginal fishing for food, social and ceremonial purposes will have first  
priority, after conservation, over other user groups. Aboriginal fishing for  
such purposes will only be restricted to achieve a valid conservation  
objective, to provide for sufficient food fish for other Aboriginal people, to  
achieve a valid health and safety objective, or to achieve other substantial  
and compelling objectives.  
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[815] Described by Mr. West as the “building block” upon which other FSC policies  
are based, this policy sets out the principles and procedural guidelines for the DFO’s  
management of aboriginal fishing.  
[816] Another example is the “Allocation Policy for Pacific Salmon” issued in 1999.  
In setting out a salmon allocation framework, it provides for priority of FSC  
requirements after conservation. It reads, in part, as follows:  
Allocation Principle 2 – First Nations  
After conservation needs are met, First Nations’ food, social and  
ceremonial requirements and treaty obligations to First Nations have  
first priority in salmon allocation.  
...  
Fish for Food, Social and Ceremonial Purposes  
Each year, Fisheries and Oceans Canada staff will consult with First Nations  
on their needs for food, social and ceremonial fish and matters that may  
affect their fishing and preferred fishing methods. Fisheries and Oceans  
Canada respects that fishing has a cultural component for First Nations.  
[Emphasis in original]  
[817] A further example is the 2007/2008 Southern B.C. Salmon Integrated  
Fisheries Management Plan. FSC fisheries are incorporated into IFMPs, which  
provide the overall fishing plan for the season. The salmon IFMP thus covers  
aboriginal, recreational and commercial fisheries for Pacific salmon in southern  
areas of the province. The management plan summarizes the objectives of  
managing aboriginal fisheries at s. 3.2 as follows:  
3.2  
First Nations Objectives  
The objective is to manage fisheries to ensure that, subject to conservation  
needs, first priority is accorded to First nations for opportunities to harvest fish  
for FSC purposes and any treaty obligations.  
Feedback from consultation sessions is relied on to measure the  
performance of providing first priority to First Nations for opportunities to  
catch fish for FSC purposes and any treaty obligations.  
[818] Various DFO policies set out guidelines regarding different aspects of the  
FSC fishery. For example, arising from its policy of issuing communal licences  
instead of individual food fishing licences, the DFO established “National Procedural  
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Guidelines for Enforcement of Aboriginal Fishing for Food, Social and Ceremonial  
Purposes”. These guidelines describe DFO’s enforcement policies and procedures  
with respect to FSC fishing, responsibilities and functions of various DFO staff, and  
instructions regarding annual evaluation of the policy and procedures.  
[819] The “Guidelines Respecting the Issuance of Licences under the ACFLRs”  
were issued in February 2001. These guidelines indicate that flexibility is required in  
order to manage the fisheries in a manner consistent with Sparrow and subsequent  
decisions, taking into account whether an aboriginal group has aboriginal or treaty  
fishing rights and that the nature and scope of any such rights will vary between  
groups. After describing the Aboriginal Communal Fishing Licences Regulations,  
the Guidelines set out directives for licensing, as follows:  
DFO seeks to manage fisheries in a manner consistent with the Sparrow and  
subsequent decisions. Consistent with the direction provided by the courts  
and federal government policies that encourage negotiation with Aboriginal  
groups, DFO consults with various Aboriginal organizations and attempts to  
reach agreement with them on their fishing effort and the measures to be  
implemented.  
It may not be possible or appropriate to consult with every Aboriginal  
organization that wishes to be involved in the process. In this regard it should  
be remembered that DFO does not have a mandate to determine whether an  
Aboriginal group has aboriginal or treaty rights to fish, or the nature and  
scope of any such rights. In deciding which are the most appropriate  
organizations with which to consult, there are a number of factors that should  
be considered. These factors will include:  
(i)  
whether the Aboriginal organization is an Indian band or represents  
one or more Indian bands;  
(ii)  
whether the Aboriginal organization represents a territorially based  
Aboriginal community or a group of territorially based Aboriginal  
communities;  
(iii)  
(iv)  
what access to fisheries resources is available to the Aboriginal  
organization;  
is access to fisheries resources available to the Aboriginal  
organization or its members through access provided to another  
Aboriginal organization;  
(v)  
the likelihood that the particular organization speaks for a community  
or communities that today best represent Aboriginal societies that  
may be able to claim Aboriginal or treaty rights to fish; and  
(vi)  
the likelihood that the particular organization may represent  
individuals with a connection to a community referred to in (v).  
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Where an agreement is reached, licences issued will reflect the fisheries  
access and licence conditions described in the agreement.  
Where an agreement is not reached, the Minister will review the consultations  
held. The Minister will take into account the preferences and concerns  
expressed by the Aboriginal organization, conservation requirements and  
other relevant matters. Licences issued will contain conditions that the  
Minister believes would meet the requirements of the Sparrow and  
subsequent decisions. The conditions would be for the proper management  
and control of fisheries and the conservation and protection of fish.  
Where an Aboriginal organization does not participate in consultations with  
DFO, the Minister will review the efforts made to consult. The Minister will  
take into account DFO’s understanding of the preferences and concerns of  
the Aboriginal organization, conservation requirements and other relevant  
matters. Licences issued will contain conditions that the Minister believes  
would meet the requirements of the Sparrow and subsequent decisions. The  
conditions would be for the proper management and control of fisheries and  
the conservation and protection of fish.  
[820] In 2006, the DFO summarized its FSC policies in a series of draft documents.  
To improve consistency in terms of how FSC requests were dealt with, they set out a  
structured and regularized process to consider such requests.  
[821] To take a request for an allocation increase, as an example, the evaluation  
and decision framework asks the following questions:  
Criteria #1: Legal Considerations  
1.1  
1.2  
Will approving/not approving request result in a conservation issue?  
Will approving/not approving the request have implications for other  
valid legislative objectives (e.g. human health & safety)?  
1.3  
1.4  
1.5  
1.6  
Issues with priority of access for FSC purposes?  
FN preferences – social and/or cultural importance  
Possible infringement on other FSC harvests if increase approved?  
If the request is for “new” species, is there historical information  
relevant to this request?  
1.7  
Other  
Criteria #2: Fisheries Resource Diversity, Abundance and Parity  
Issues  
2.1  
Current & requested allocation of species/stock (total units and units  
per capita)  
2.2  
Compare current allocation of requested species/stock with other FNs  
in same Geographic Aggregate (GA).  
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2.3  
2.4  
Current allocation of all fish species/stocks (Total lbs per capita)  
Using AFS summary table, compare current allocations for each  
species with average for Aboriginal groups in same GA.  
For shellfish, evaluate availability (high, medium or low) as usually  
there is no allocation.  
2.5  
2.6  
Changes in Aboriginal Groups’ fish needs (e.g. population, etc.)  
Other  
Criteria #3: Fisheries Capacity, Governance, and Operational Issues  
3.3  
3.2  
3.3  
3.4  
How does request compare with reported FSC catch data?  
Does the FN have the capacity to harvest the requested allocation?  
Concerns regarding compliance with licence conditions?  
Is the request to facilitate short-term access to unusually high stock  
abundance?  
3.5  
Can the requested allocation be caught within the FN’s current fishing  
area?  
3.6  
3.7  
Is request linked with a commercial issue (e.g. by-catch retention)?  
Other  
Criteria #4: Treaty-Related Issues  
4.1  
4.2  
Is the requesting FN participating in the Treaty process?  
Compare the requested allocation with what has been offered (or  
planned) for the requested species.  
4.3  
4.4  
4.5  
Can the requested allocation (or species) be caught within the SOI?  
Within the negotiated Fishing Area?  
Compare the requested allocation to treaty allocations  
proposed/offered for neighbouring First Nations.  
Other  
[822] The umbrella document (entitled “First Nations Access to Fish for Food,  
Social and Ceremonial Purposes, Part 1: Pacific Regional Operational Framework”)  
further outlines a sequence of 10 detailed procedural steps to be followed upon  
receipt of a request for an allocation increase from a First Nation. It is difficult to  
conceive of more structured decision-making than directed by these policies.  
[823] As noted, these are draft documents, and it is not entirely clear from the  
evidence whether they are currently in operation. However, I observe that  
Mr. Preston referred in his affidavit to an allocation change request from the Nuu-  
chah-nulth Tribal Council in 2006; attached to his affidavit was a draft FSC allocation  
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change request evaluation package prepared with respect to the Nuu-chah-nulth  
Tribal Council request. This would suggest that the frameworks are currently in  
effect.  
[824] The Supreme Court’s concerns in Adams and Marshall with respect to “an  
unstructured discretionary administrative regime” are not concerns I share in the  
context of the DFO’s approach to the FSC fishery. I recognize that policies do not  
carry the force of legislation or regulation. Nevertheless, the proposition that the  
aboriginal food fishery is to be accorded first priority after conservation is firmly  
entrenched in DFO policies. Those policies, in turn, provide considerably more  
concrete and practical guidance with respect to decisions affecting aboriginal food  
fishing rights than would a bare statement in the Fisheries Act, for example, that  
FSC rights are to be given first priority after conservation, ever could.  
[825] I find support in the comments of McLachlin C.J. at para. 51 of Haida Nation.  
Echoing her words, I conclude that while falling short of a regulatory scheme, DFO  
policies with respect to the FSC fishery cumulatively guard against unstructured  
discretion and provide appropriate guidance for decision-makers.  
[826] Moreover, I am not satisfied that the plaintiffs have demonstrated that  
Canada’s fisheries regime meaningfully diminishes the exercise of their asserted  
FSC rights.  
[827] Citing the evidence of Dr. Hall, the plaintiffs say that the Nuu-chah-nulth Tribal  
Council has requested increased allocations of fish for inclusion in communal  
licences but that no changes from the DFO have been forthcoming. I note, as well,  
the evidence of Mr. Luedke that in recent years, the DFO and the Nuu-chah-nulth  
Tribal Council have discussed FSC allocations at the Spring Uu-a-thluk meetings.  
At these meetings, the Nuu-chah-nulth Tribal Council has usually presented written  
requests for FSC allocations that are approximately double the current Nuu-chah-  
nulth Tribal Council FSC allocations.  
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[828] However, the plaintiffs have not demonstrated that their present FSC  
allocations are insufficient to meet their FSC needs. The evidence that does exist  
on this point would appear to suggest otherwise. A spreadsheet prepared by  
Mr. Preston regarding the plaintiffs’ communal licence allocations and reported  
catches of salmon from 2000 to 2008 indicates the following with respect to sockeye  
salmon: the Ahousaht have never exceeded their licence allocations for sockeye  
salmon; the Ehattesaht equalled or exceeded their allocation in four of eight years;  
the Hesquiaht and Tla-o-qui-aht have largely been successful in catching their  
allocations; and, since 2006, the Mowachaht have met their allocations. None of the  
plaintiffs has ever met its allocations for the other species of salmon.  
[829] I recognize that these numbers are based on the First Nations reporting to the  
DFO and that there is some uncertainty regarding the accuracy of these numbers;  
for example, catches in large-capacity FSC fisheries, such as the hiring of a seine  
boat or reliance on the First Nations Marine Society, are recorded, while catches in  
occasional smaller scale fisheries may not be necessary. However, the evidence is  
consistent with Mr. Preston’s testimony that their allocations are not being increased  
because they are currently not being caught. Initial FSC allocations were a  
negotiated amount based upon the specific needs of individual First Nations. In  
some cases, those amounts have been increased. The Tla-o-qui-aht First Nation  
sought an increased allocation for sockeye salmon in 2004; their allocation was  
increased from 3,500 salmon to 5,000 in 2004 and thereafter. The evidence does  
not establish that existing allotment levels are insufficient to meet the plaintiffs’ FSC  
needs.  
[830] Canada has undertaken a variety of measures to enhance FSC opportunities  
for the plaintiffs. For instance, commercial closures of the crab fishery and clam  
harvesting to facilitate FSC access have been implemented from time to time.  
Another example is the Excess Salmon to Spawning Requirements Policy, which  
sets out priorities for the allocation of surplus salmon from hatcheries; the first  
priority is meeting any outstanding FSC requirements which could not be met  
through licensed fisheries.  
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[831] I am satisfied, on the whole, that the plaintiffs’ FSC rights are being  
adequately met. Pursuant to FSC licences, the plaintiffs are largely able to fish  
whenever they wish and in the manner they prefer; they are also not strictly  
restricted to their traditional fishing grounds. I do not find that the plaintiffs have  
demonstrated any meaningful limitation on their food fishing rights such that they are  
enduring undue hardship. Consequently, the regulatory regime has no apparent  
adverse effect on the plaintiffs’ FSC rights. I therefore conclude that there is no  
prima facie infringement of the plaintiffs’ FSC rights.  
[832] I now turn to my consideration of Canada’s defence of justification.  
IX.  
JUSTIFICATION  
[833] In this section of my Reasons, I consider whether Canada’s prima facie  
infringement of the plaintiffs’ aboriginal rights is justified. In doing so, I will consider  
not only whether Canada has proven that the entirety of its fishery regulatory regime  
is a justified infringement but also whether some lesser encroachment would serve  
the objects of its regulatory regime.  
A.  
Legal Principles  
[834] As Dickson C.J. and La Forest J. explained in Sparrow, at para. 62:  
[835] Rights that are recognized and affirmed are not absolute. Federal legislative  
powers continue, including, of course, the right to legislate with respect to Indians  
pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however,  
now be read together with s. 35(1). In other words, federal power must be  
reconciled with federal duty and the best way to achieve that reconciliation is to  
demand the justification of any government regulation that infringes upon or denies  
aboriginal rights.  
[836] Thus, once a prima facie infringement has been found, the onus shifts to the  
Crown to demonstrate that the infringement is justifiable. Sparrow sets out a two-  
part test for justification:  
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Page 270  
a.  
b.  
The infringement of the aboriginal right must be in furtherance of a  
legislative objective that is compelling and substantial.  
The infringement must also be consistent with the special fiduciary  
relationship that exists between the Crown and aboriginal peoples.  
1.  
Compelling and substantial objective  
[837] The first consideration in the justification analysis is whether the infringement  
of the aboriginal right is in furtherance of a legislative objective that is compelling  
and substantial. The Court here inquires into whether the objective of Parliament in  
authorizing a government department to enact regulations is valid, as well as the  
objective of that department in setting out the particular regulations.  
In Gladstone, Lamer C.J. explained that compelling and substantial objectives are  
those which are directed at either one of the purposes underlying the s. 35(1)  
recognition and affirmation of aboriginal rights, as identified in Van der Peet:  
… first, the means by which the Constitution recognizes the fact that prior to  
the arrival of Europeans in North America the land was already occupied by  
distinctive aboriginal societies, and as, second, the means by which that prior  
occupation is reconciled with the assertion of Crown sovereignty over  
Canadian territory.  
[838] At the level of justification, it is the latter purpose which may well be most  
relevant, as Lamer C.J. explained, at para. 73 of Gladstone:  
Because, however, distinctive aboriginal societies exist within, and are a part  
of, a broader social, political and economic community, over which the Crown  
is sovereign, there are circumstances in which, in order to pursue objectives  
of compelling and substantial importance to that community as a whole  
(taking into account the fact that aboriginal societies are a part of that  
community), some limitation of those rights will be justifiable. Aboriginal  
rights are a necessary part of the reconciliation of aboriginal societies with the  
broader political community of which they are part; limits placed on those  
rights are, where the objectives furthered by those limits are of sufficient  
importance to the broader community as a whole, equally a necessary part of  
that reconciliation.  
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[839] In Sparrow, the Court identified conservation/resource management and the  
prevention of harm as objectives that satisfied this part of the justification test. The  
“public interest”, however, it held, was too vague a justification to limit constitutional  
rights. In Gladstone, Lamer C.J. elaborated with respect to other objectives that  
might satisfy this standard, at para. 75:  
Although by no means making a definitive statement on this issue, I would  
suggest that with regards to the distribution of the fisheries resource after  
conservation goals have been met, objectives such as the pursuit of  
economic and regional fairness, and the recognition of the historical reliance  
upon, and participation in, the fishery by non-aboriginal groups, are the types  
of objectives which can (at least in the right circumstances) satisfy this  
standard. In the right circumstances, such objectives are in the interest of all  
Canadians and, more importantly, the reconciliation of aboriginal societies  
with the rest of Canadian society may well depend on their successful  
attainment.  
[Emphasis in original]  
[840] In Delgamuukw, the Court provided further examples of legislative objectives  
that would satisfy the standard, this time in the context of aboriginal title: the  
development of agriculture, forestry, mining, and hydroelectric power, the general  
economic development of the interior of British Columbia, protection of the  
environment or endangered species, the building of infrastructure and the settlement  
of foreign populations to support those aims.  
[841] As noted earlier in the discussion of infringement, the Supreme Court in  
Gladstone held that where the constituent parts of a government scheme (there, the  
regulation of the herring spawn-on-kelp fishery) had different objectives, it was  
sufficient to consider the cumulative effect of the scheme when considering  
infringement; at the justification stage, however, it was necessary to consider the  
constituent parts separately. In the present case, I have already concluded that it is  
the cumulative effect of the current fisheries regime that infringes the plaintiffs’  
aboriginal rights. In the circumstances, it is simply not possible to identify each  
individual aspect of that regime to subject it to a justification analysis. Moreover,  
given my conclusions regarding justification, it is not necessary that I do so.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
2. Consistent with fiduciary relationship  
[842] If a valid legislative objective is found, the analysis proceeds to an  
Page 272  
assessment of whether the infringement is consistent with the special fiduciary  
relationship between the Crown and aboriginal peoples. As the Supreme Court  
explained in Sparrow, at p. 1114:  
If a valid legislative objective is found, the analysis proceeds to the second  
part of the justification issue. Here, we refer back to the guiding interpretive  
principle derived from Taylor and Williams and Guerin, supra. That is, the  
honour of the Crown is at stake in dealings with aboriginal peoples. The  
special trust relationship and the responsibility vis-a-vis aboriginals must be  
the first consideration in determining whether the legislation or action in  
question can be justified.  
[843] Factors which the Court identified as relevant in assessing whether the  
Crown’s actions were consistent with its fiduciary duty include:  
a.  
b.  
c.  
d.  
Whether the right had been given adequate priority in relation to other  
rights;  
Whether there had been as little infringement as possible to effect the  
desired result;  
Whether, in a situation of expropriation, fair compensation was  
available; and  
Whether the aboriginal group in question had been consulted.  
[844] In Nikal, Cory J. discussed how the notion of reasonableness infuses the  
justification analysis, at para. 110:  
It can, I think, properly be inferred that the concept of reasonableness forms  
an integral part of the Sparrow test for justification. For example, in these last  
questions reasonableness will be a necessary aspect of the inquiry as to  
justification. For instance, when considering whether there has been as little  
infringement as possible, the infringement must be looked at in the context of  
the situation presented. So long as the infringement was one which in the  
context of the circumstances presented could reasonably be considered to be  
as minimal as possible then it will meet the test. The mere fact that there  
could possibly be other solutions that might be considered to be a lesser  
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Page 273  
infringement should not, in itself, be the basis for automatically finding that  
there cannot be a justification for the infringement. So too in the aspects of  
information and consultation the concept of reasonableness must come into  
play. For example, the need for the dissemination of information and a  
request for consultations cannot simply be denied. So long as every  
reasonable effort is made to inform and to consult, such efforts would suffice  
to meet the justification requirement. ...  
[845] In Sparrow and Gladstone, the Supreme Court applied the Crown’s fiduciary  
duty in terms of priority. Sparrow concerned aboriginal food fishing rights, and the  
Court made the following comments, at p. 1114:  
The problem that arises in assessing the legislation in light of its objective  
and the responsibility of the Crown is that the pursuit of conservation in a  
heavily used modern fishery inevitably blurs with the efficient allocation and  
management of this scarce and valued resource. The nature of the  
constitutional protection afforded by s. 35(1) in this context demands that  
there be a link between the question of justification and the allocation of  
priorities in the fishery. The constitutional recognition and affirmation of  
aboriginal rights may give rise to conflict with the interests of others given the  
limited nature of the resource. There is a clear need for guidelines that will  
resolve the allocational problems that arise regarding the fisheries.  
[846] The Court went on to find that the constitutional nature of aboriginal food  
fishing rights meant that any allocation of priority after valid conservation measures  
have been implemented must accord top priority to aboriginal food fishing, followed  
by commercial and recreational fishing.  
[847] In Gladstone, Lamer C.J. articulated a convenient distinction between an  
aboriginal right that was internally limited, such as food fishing (at a certain point the  
needs of the particular aboriginal group will be sated), and one that had no such  
internal limitation (for example, the claim to sell herring spawn-on-kelp on a  
commercial basis, as was the case in Gladstone itself). At para. 62, he wrote:  
Where the aboriginal right is one that has no internal limitation then the  
doctrine of priority does not require that, after conservation goals have been  
met, the government allocate the fishery so that those holding an aboriginal  
right to exploit that fishery on a commercial basis are given an exclusive right  
to do so. Instead, the doctrine of priority requires that the government  
demonstrate that, in allocating the resource, it has taken account of the  
existence of aboriginal rights and allocated the resource in a manner  
respectful of the fact that those rights have priority over the exploitation of the  
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Page 274  
fishery by other users. This right is at once both procedural and substantive;  
at the stage of justification the government must demonstrate both that the  
process by which it allocated the resource and the actual allocation of the  
resource which results from that process reflect the prior interest of aboriginal  
rights holders in the fishery.  
[848] Lamer C.J. noted that the content of this priority, which was something less  
than exclusive but which nonetheless gave some priority to the aboriginal right,  
necessarily had to remain vague pending assessment on a case-by-case basis as to  
whether the government had acted in a fashion which reflected that it had truly taken  
the existence and importance of aboriginal rights into account. In this regard, he  
compared the analysis to the minimal impairment branch of the Oakes test where  
the government balances the interests of competing groups; the Court does not  
require that the government have taken the least rights-impairing action possible,  
and considers instead the reasonableness of the government’s actions, taking into  
account differing justified demands. At para. 64, Lamer C.J. suggested questions  
that may be relevant to the determination of whether the government has granted  
priority and has taken into account the existence and importance of such rights:  
(1)  
whether the government has accommodated the exercise of the  
aboriginal right to participate in the fishery;  
(2)  
whether the government’s objectives in enacting the particular  
regulatory scheme reflect the need to take into account the priority of  
aboriginal rights holders;  
(3)  
(4)  
(5)  
the extent of the participation in the fishery of aboriginal rights holders  
relative to their percentage of the population;  
how the government has accommodated different aboriginal rights in a  
particular fishery (food versus commercial rights, for example);  
how important the fishery is to the economic and material well being of  
the band in question; and  
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Page 275  
(6)  
the criteria taken into account by the government in, for example,  
allocating commercial licences among different users.  
[849] Lamer C.J. spoke of the challenges of balancing the various competing  
interests, at para. 66:  
The existence of such difficult questions of resource allocation supports the  
position that, where a right has no adequate internal limitations, the notion of  
exclusivity of priority must be rejected. Certainly the holders of such  
aboriginal rights must be given priority, along with all others holding aboriginal  
rights to the use of a particular resource; however, the potential existence of  
other aboriginal rights holders with an equal claim to priority in the  
exploitation of the resources, suggests that there must be some external  
limitation placed on the exercise of those aboriginal rights which lack internal  
limitation. Unless the possibility of such a limitation is recognized, it is difficult  
to see how the government will be able to make decisions of resource  
allocation amongst the various parties holding prioritized rights to participate  
in the fishery.  
[850] In summary, to succeed in its justification defence, Canada must establish the  
following:  
(1)  
that the impugned regulatory regime was enacted pursuant to a valid  
legislative objective or objectives; and  
(2)  
that it has acted in a manner consistent with its fiduciary obligation  
toward aboriginal people, and that in allocating the fisheries resource,  
it has been respectful of the plaintiffs’ aboriginal rights and has  
encroached upon those rights to the minimal extent possible.  
[851] It is possible within this aspect of the analysis that I will examine whether the  
entirety of the regime can be justified or whether some lesser encroachment of the  
plaintiffs’ aboriginal rights would still serve the objectives of the regime.  
B.  
Canada’s Position on Justification  
[852] Canada submits that its management regime constitutes a legitimate  
regulation of the plaintiffs’ commercial fishing rights, and that its actions in managing  
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the fisheries are reasonable. DFO’s legislation, regulations, and policies, it says, are  
in pursuit of valid legislative objectives, which include:  
a.  
b.  
c.  
d.  
e.  
f.  
conservation and sustainability of fisheries resources;  
protection of endangered species;  
establishing priority for aboriginal FSC fisheries after conservation;  
health and safety;  
adherence to international treaties;  
facilitation of aboriginal participation in the fisheries;  
g.  
pursuit of economic and regional fairness, including participation in the  
fisheries by other aboriginal groups and recognition of the historic  
reliance upon and participation in the fisheries by non-aboriginal  
groups;  
h.  
i.  
achievement of the full economic and social potential of the fisheries  
resources; and  
safe and accessible waterways.  
[853] In its submissions, Canada has detailed how, in its view, the various features  
of the regulatory regime – limited entry licensing, quotas and gear restrictions, for  
instance – duly accommodate and minimally impair aboriginal interests. To take  
limited entry licensing as an example, Canada submits that such licensing was  
implemented for the valid legislative objectives of conservation and effective  
management of commercial fisheries on a species specific basis. The DFO  
consulted with aboriginal groups and accommodated their interests in both the  
implementation and ongoing administration of limited entry licensing programs in  
various fisheries. Canada says that special consideration was given to aboriginal  
peoples during the introduction of limited entry licensing by means of a host of  
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measures including reduced-fee licences and licence retirement programs.  
Moreover, Canada submits that the DFO also established a variety of programs that  
provided financial assistance to support individual aboriginal commercial fishers  
during this period, such as the Indian Fishermen’s Assistance Program, the  
Aboriginal Business Development Program and special provisions for band councils  
to apply for limited entry licences for certain fisheries in circumstances where they  
did not met the limited entry licensing criteria.  
[854] Canada says that following the release of the Supreme Court’s decision in  
Sparrow, the DFO recognized and supported communal aboriginal participation in its  
implementation of limited entry licensing through a range of programs including: the  
Aboriginal Fishing Strategy; pilot sales programs; voluntary licence retirement  
programs; the Allocation Transfer Program; reduced fee licences; special  
consideration for aboriginal communities in new and emerging fisheries; Aboriginal  
Aquatic Resource and Oceans Management access; the Integrated Pilot Groundfish  
Program; and the Pacific Integrated Commercial Fishing Initiative. Canada submits  
that any impairment that may have resulted from the initial allocation of limited entry  
licences in a particular commercial fishery would have been minimal and can be  
justified by the DFO’s ongoing efforts to continue to transfer further commercial  
opportunities to aboriginal groups through many of the programs referred to above.  
[855] Canada makes similarly detailed submissions with respect to other aspects of  
the regulatory regime, and contends that each has been implemented in a manner  
consistent with Canada’s fiduciary relationship with aboriginal peoples.  
[856] Canada further submits that consultation is one of the factors that may be  
considered in determining whether the honour of the Crown has been upheld, and it  
details the extensive consultations in which it says the DFO has engaged with  
aboriginal peoples throughout the province and with the Nuu-chah-nulth Tribal  
Council specifically. The DFO has implemented and funds a multi-faceted  
consultation program that ensures: bilateral and multilateral consultations by  
funding the Nuu-chah-nulth Tribal Council’s participation in 43 committees and  
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advisory boards; a co-management approach through the Aquatic Management  
Board and the Aboriginal Aquatic Resources and Oceans Management funded Uu-  
thluk Joint Technical Meetings; annual consultations with 197 First Nations with  
fisheries programs in the province, including the Nuu-chah-nulth; a Consultation  
Secretariat with a calendar and programs specifically addressing aboriginal  
consultation; and direct involvement in the Pacific Integrated Commercial Fisheries  
Initiative.  
[857] Finally, Canada emphasizes the importance of recognizing the multitude of  
competing interests, both international and local, that it must balance and reconcile  
in managing the fisheries. At the international level, Canada has entered into  
various international treaties to assist with the conservation and sustainability of  
fisheries resources that migrate through international waters. A few of these include  
the International Pacific Halibut Convention, the Pacific Salmon Treaty, the North  
Pacific Anadromous Fisheries Convention and the U.N. Accord for Protection of  
Species at Risk. Canada summarizes the provincial interests it must balance as  
follows: 197 First Nations groups; 143 First Nations located along Fraser sockeye  
migration routes; 87 inland First Nations reliant solely on Fraser salmon; 6,307  
licenced commercial fishers; 1,146 commercial clam fishers; approximately 350,000  
tidal and 300,000 non-tidal recreational fishers; plus numerous other environmental  
groups and local communities.  
C.  
The Plaintiffs’ Position on Justification  
[858] The plaintiffs respond that Canada has failed to discharge its onus of  
justifying its infringement of their aboriginal rights. They submit that Canada’s  
attempt to individually justify each major development in the commercial fishery,  
such as the introduction of limited entry and quotas, fails to consider how the  
regulatory regime in its totality has adversely affected the Nuu-chah-nulth plaintiffs.  
Canada seeks, according to the plaintiffs, to justify individual programs and  
developments on the basis that they are necessary for the management of the entire  
fishery rather than considering them in the context of the plaintiffs’ aboriginal rights.  
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Citing Gladstone, the plaintiffs say that the priority doctrine in the context of  
commercial fishing rights requires Canada to demonstrate that, in allocating the  
resource, it has taken account of the existence of aboriginal rights and allocated the  
resource in a manner respectful of the fact that those rights have priority over the  
exploitation of the fishery by others. They argue that notwithstanding the DFO’s  
various aboriginal fishing strategies, those programs are not based on aboriginal  
rights and that in implementing those programs, Canada has not considered the  
plaintiffs as rights holders in the way that the Gladstone analysis requires them to  
do.  
[859] The plaintiffs do not take issue with Canada’s regulation of the fishery  
generally. Rather, they seek to have fishing opportunities which are specific to them  
and which permit them to fish in accordance with their preferred means. Their  
principal complaint is against Canada’s failure to accommodate their aboriginal  
rights within its larger management scheme. The plaintiffs point to two examples in  
the evidence of instances in which Canada has established programs outside the  
mainstream commercial fishery in order to accommodate aboriginal and treaty  
rights. One is the Somass Pilot Sales Program, which provides the Tseshaht and  
Hupacasath First Nations with fishing opportunities. As well, Canada permits the  
Nisga’a First Nation, which has a treaty right to sell Nass River salmon, to conduct  
their salmon fishery under their own rules at different times and in different areas  
than the regular commercial fishery.  
D.  
Analysis  
[860] At the core of the plaintiffs’ submissions on justification is the proposition that  
it is impossible for Canada to justify infringements since it has never acknowledged  
the existence of aboriginal commercial fishing rights on the part of the Nuu-chah-  
nulth. They say that Canada cannot, on the one hand, deny the existence of the  
claimed right and then, on the other, demonstrate that they have taken the existence  
of that right into account and allocated the resource in a manner respectful of the  
plaintiffs’ priority (however limited) over other users of the fishery.  
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[861] Canada acknowledges that the plaintiffs claim commercial fishing rights but  
says that whether they are in fact rights holders will be determined in these  
proceedings. It says that N.T.C. Smokehouse (which involved the Tseshaht and  
Hupacasath First Nations) offers the best guidance as to the likelihood of the  
plaintiffs establishing commercial fishing rights; such rights were not recognized in  
that decision. Nevertheless, Canada says that it has continued to strive to address  
and fulfill aboriginal groups’ interests in increasing commercial fishing opportunities  
through the various programs and policies detailed in the evidence. Where  
aboriginal rights are claimed but not yet established, it submits, the government  
must balance societal and aboriginal interests in making decisions that may affect  
aboriginal claims.  
[862] Gladstone is clear that in order to satisfy the doctrine of priority in the context  
of an aboriginal right without internal limitation, the government must take into  
account the fact that the aboriginal group in question has a constitutionally protected  
right. As Lamer C.J. wrote, at para. 62:  
... the doctrine of priority requires that the government demonstrate that, in  
allocating the resource, it has taken account of the existence of aboriginal  
rights and allocated the resource in a manner respectful of the fact that those  
rights have priority over the exploitation of the fishery by other users. ...  
[Emphasis added]  
[863] At para. 63, in explaining the content of the priority, he wrote, in part:  
... priority under Sparrow’s justification test cannot be assessed against a  
precise standard but must rather be assessed in each case to determine  
whether the government has acted in a fashion which reflects that it has truly  
taken into account the existence of aboriginal rights. ... Similarly, under  
Sparrow’s priority doctrine, where the aboriginal right to be given priority is  
one without internal limitation, courts should assess the government’s actions  
not to see whether the government has given exclusivity to that right (the  
least drastic means) but rather to determine whether the government has  
taken into account the existence and importance of such rights.  
[Emphasis added]  
[864] In later applying the justification analysis to the facts before him, Lamer C.J.  
commented upon the inadequacies of the evidentiary record with respect to the  
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priority analysis. He identified various evidentiary shortcomings, and then  
addressed how the lower courts had sought to overcome them, at para. 81:  
In the courts below, the judges considering the justification issue avoided the  
difficulties created by the inadequacy of the evidentiary record in two ways:  
they either held that the nature of the appellant’s actions rendered the  
government’s actions justifiable (the approach of the trial judge) or they held  
that the allocation of 60 per cent of Category J licences to aboriginal groups  
demonstrated that the government’s regulatory scheme was justifiable. The  
problem with the first of these approaches is that the nature of the appellants’  
actions is not relevant to the inquiry into the constitutionality of the regulation  
under which they were charged. The problem with the second approach is  
that the fact that 60 per cent of the Category J licences were held by  
aboriginal people does not demonstrate, in itself, that the licences were  
allocated in a manner which took into account the existence of aboriginal  
rights. It is, perhaps, consistent with that having taken place, but absent  
some further evidence as to how or why this result was reached, about the  
percentage of aboriginal people in relation to the population of the British  
Columbia coast as a whole, and about the other allocation issues in the  
herring roe and herring spawn on kelp fisheries, the fact that 60 per cent of  
the Category J licences are held by aboriginal peoples does not, on its own,  
serve to justify the government’s actions.  
[Emphasis added]  
[865] It is thus apparent that in order to be able to justify an infringement, Canada  
must, at a minimum, have turned its mind to the existence of the aboriginal rights at  
issue here. Until the release of these Reasons, it was not unreasonable in light of  
the prevailing case authorities for Canada to proceed on the basis that the plaintiffs  
did not have the aboriginal fishing rights that I have found they possess. I recognize,  
as well, that even without recognizing those rights, Canada has endeavoured to  
facilitate aboriginal participation in the commercial fishery by means of its various  
programs that benefit only aboriginal fishers. Nevertheless, the DFO has been  
committed to an integrated commercial fishery model under which all fishers are  
treated equally. It has attempted to walk a fine line in this regard, as noted by  
Mr. Ryall. He stated that “If First Nation participation in the commercial fisheries  
were increased without mitigation or some other management measures such as  
defined shares, this would make fisheries more difficult to manage and to achieve  
conservation and allocation objectives.” I interpret this to mean that the DFO  
considers it unfair to established non-aboriginal fishers to create more than  
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incremental increases in the aboriginal share of the commercial fishery. The DFO  
has many stakeholders to contend with and it performs a delicate balancing act in its  
attempts to fairly manage the expectations and demands of all the competing  
stakeholders.  
[866] However, the fact remains that these plaintiffs have aboriginal rights to fish  
and to sell fish, and Canada has not taken those specific rights into account in its  
management of the Pacific fisheries. There is an important difference between  
balancing generalized aboriginal interests in participating in the commercial fishery  
with other competing interests on the one hand, and according recognition, however  
defined, to the constitutional right of these plaintiffs, on the other.  
[867] While it may be suggested that the fact that Canada did not specifically  
consider the plaintiffs’ aboriginal rights should not matter so long as the outcome  
would have been the same, it would be speculative to assume that would be the  
case. The evidence is clear that Canada has not recognized aboriginal rights in the  
commercial fishery. On the issue of licence splitting, for example, the testimony of  
Mr. Radford is illustrative of Canada’s approach:  
The other concern, of course, is that we like to – or were directed to manage  
all commercial access in a -- from a level playing field, …if we were to allow  
one class of commercial licence holders to do this, then we would also be  
obligated to allow all commercial licence holders to do this. So while one  
licence split may not make a big difference, if you split them all up and  
provide everybody with an opportunity to work their gear that much harder, it  
has potential to negatively impact on conservation in the current management  
regime. It’s not to say that there isn’t a way to do this at some point in the  
future, but it requires a different set of controls that would require us to  
negotiate with the broader industry as a whole. …[I]t’s not impossible but  
we’re not there at this point.  
[868] It cannot be known whether the DFO would have responded differently to the  
plaintiffs’ proposals for licence splitting had it taken into account their constitutional  
rights to fish and to sell that fish.  
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[869] Accordingly, not having taken into account the existence of the plaintiffs’  
aboriginal rights to fish and to sell fish, Canada is not in a position to justify the  
infringements of that right as required by the authorities.  
[870] Almost all of the evidence that Canada led on justification was in aid of  
justifying the fisheries regime at large since there had been no finding of a  
commercial aboriginal right and infringement. The evidence did not address the  
justification defence made necessary by the plaintiffs’ lesser claims. For instance,  
there is evidence that the plaintiffs’ requests, made primarily through Dr. Hall, for  
specific exemptions to permit them to conduct modest commercial fisheries were not  
accommodated. In some cases, Canada’s witnesses indicated favourable views of  
such proposals under cross-examination, and in other cases, not. Canada did not  
lead evidence justifying its refusal to entertain these limited proposals on the  
grounds that it adheres to a fully integrated management model.  
[871] In my view, it would be unfair to hold that Canada has failed to justify its prima  
facie infringement of the plaintiffs’ aboriginal rights without first providing the parties  
the opportunity to consult or negotiate based upon the findings I have made and, in  
the event of unsuccessful negotiations, the opportunity for Canada to adduce further  
evidence relevant to a more focussed justification defence. An additional factor that  
guides the outcome towards negotiation between the parties is Canada’s submission  
that the plaintiffs led no evidence with respect to the level of participation in the  
commercial fishery that would be sufficient to meet their requirements or  
expectations. It is true that the plaintiffs plead their case on a spectrum. Not  
knowing where, if at all, on that spectrum the Court’s decision would fall, the  
plaintiffs contend that the quantification of the amount of fish that would satisfy their  
aboriginal rights, or the determination as to the means by which their aboriginal  
rights will be exercised, is a question for negotiation between the parties as part of  
the process of reconciliation. I agree.  
[872] For these reasons, it is my view that it is necessary for the parties to consult  
and negotiate the manner in which the plaintiffs’ rights can be exercised and  
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accommodated without jeopardizing Canada’s numerous legislative objectives and  
interests.  
[873] This is consistent with the objectives of the law of aboriginal rights. In  
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3  
S.C.R. 388, 2005 SCC 69, the judgment of the Court began with the statement:  
The fundamental objective of the modern law of aboriginal and treaty rights is  
the reconciliation of aboriginal peoples and non-aboriginal peoples and their  
respective claims, interests, and ambitions.  
[874] To repeat what I said earlier, the objective of s. 35(1) is to guarantee that the  
government treats aboriginal peoples in a way that ensures that their rights are  
taken seriously: Sparrow, Gladstone. What this means in practical terms is  
explained, in part, in Gladstone: where an aboriginal right has no internal limitation,  
as here, the notion of exclusive priority must be rejected. However, in demonstrating  
that it has taken the aboriginal right seriously in balancing legislative objectives and  
other interests, the government must take account of the existence of the right and  
allocate the resource in a manner respectful of the fact that that right does have a  
priority.  
[875] Here, it is for the parties to negotiate towards a quantification of the amount  
and means of exercise of the plaintiffs’ aboriginal rights to fish and to sell fish that  
will recognize these principles. For example, Canada may be able to justify,  
depending upon the health and abundance of fish stocks, considerable constraint on  
a special Nuu-chah-nulth fishery. However, as I have endeavoured to make clear,  
negotiations have previously gone forth without recognition of the plaintiffs’  
aboriginal rights. They must now proceed on a different footing than has heretofore  
taken place, one that starts with recognition of the plaintiffs’ constitutional rights to  
fish and to sell that fish.  
[876] The delicate and challenging task now facing the parties is to recognize the  
plaintiffs’ rights within the context of adherence to Canada’s legislative objectives  
and to fairly balance the plaintiffs’ priority with other societal interests.  
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[877] The Supreme Court of Canada confirmed in Haida Nation that government  
has a duty to consult and, where circumstances warrant, accommodate First Nations  
before taking actions that may affect their asserted aboriginal rights. It is  
unnecessary for me to detail the extensive consultations that Canada has  
undertaken with the plaintiffs with respect to their participation in the fishery. Suffice  
it to say that the evidence is overwhelming that there have been comprehensive and  
thorough consultations. Canada has not, however, recognized the plaintiffs as  
holding aboriginal rights, as opposed to simply aboriginal interests, in those  
consultations. In the future, it will be necessary that all such relevant consultations  
be informed by the declarations granted in these proceedings.  
[878] Given the possibility of further hearings on justification in light of the outcome  
in this case, it is necessary for me to make certain limited findings of fact. I do so  
not only to assist the parties in their negotiations but also to avoid, to the extent  
possible, duplication of the evidence tendered at this trial at any such future  
hearings.  
[879] There is absolutely no question that fisheries management is extraordinarily  
complex: the resource is wild, it cannot be seen, and it often crosses international  
boundaries. Abundance, productivity and allowable harvests must be estimated,  
and input controls (such as vessel and gear restrictions) limit harvest only indirectly.  
The fishery occurs over a tremendously large area of ocean, making it difficult and  
expensive to patrol effectively. Moreover, fish stocks are subject to significant  
variations in abundance caused by a wide variety of biological and environmental  
factors. The present regime is the product of at least a century of experience, with  
input from biologists, management specialists, economists and numerous other  
experts. Based as it is on that level of expertise and experience, Canada’s  
approach to fisheries management should be afforded considerable deference.  
[880] To take the salmon fishery as an example, para. 2387 of Canada’s written  
submissions illustrates the sheer complexity of managing the fishery for even FSC  
purposes:  
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Today, with increased Aboriginal populations, a reduced abundance of some  
fish stocks, (most notably salmon), and a more precautionary approach to  
fisheries management, FSC fisheries require a more specific allocation  
policy. For example, according first priority to the Aboriginal fishery presents  
a practical problem, since the FSC fishery comes last in the sequence of  
fisheries targeting or intercepting migrating salmon. This is most notable for  
Fraser River sockeye which swim past the WCVI and then continue up the  
Fraser River. As noted above, there are 143 First Nations that are reliant on  
Fraser River sockeye. DFO must balance the interests of First Nations  
wishing access to Fraser River sockeye, including those of the 87 First  
Nations that are solely reliant on Fraser River sockeye. The Plaintiff Bands  
have one of the first opportunities to catch Fraser bound sockeye. DFO must  
provide FSC opportunities and ensure that sufficient sockeye return to the  
Fraser to spawn. As a result of the many demands on Fraser River sockeye  
and other stocks of salmon, DFO responded by developing an Allocation  
Policy for Pacific Salmon, which lays out principles of allocation (e.g.  
conservation is first priority, FSC fishing is the next priority) and describes  
how allocation works.  
[881] There are a range of legislative objectives that may justify infringement of  
aboriginal rights, arising from the need to reconcile the fact that aboriginal societies  
exist within and are part of a broader social, political and economic community:  
Gladstone, at para. 73. In summarizing Canada’s position on justification earlier, I  
set out what it contends are valid legislative objectives in the context of the current  
fisheries regime. For convenience, I repeat that list:  
a.  
b.  
c.  
d.  
e.  
f.  
conservation and sustainability of fisheries resources;  
protection of endangered species;  
establishing priority for aboriginal FSC fisheries after conservation;  
health and safety of the fishers and consumers;  
adherence to international treaties;  
facilitation of aboriginal participation in the fisheries;  
g.  
pursuit of economic and regional fairness including the participation in  
the fisheries by other aboriginal groups and recognition of the historic  
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reliance upon and participation in the fisheries by non-aboriginal  
groups;  
h.  
i.  
achievement of the full economic and social potential of fisheries  
resources; and  
safe and accessible waterway.  
[882] In my view, some of these are legislative objectives, while others are perhaps  
more appropriately characterized as societal interests. I would loosely differentiate  
between the two on the basis that legislative objectives are those objectives that  
specifically underlie the fisheries and other related legislation. Societal interests, on  
the other hand, I consider to be broader issues within the government’s  
constitutional jurisdiction that it may take into account and balance in its  
management of the fishery; for example, the interests of other First Nations.  
[883] The evidence satisfies me that each legislative objective or societal interest in  
this list is a valid one that Canada may legitimately take into account in its regulation  
of the fishery as a whole. However, without the contextual evidence of a proposed  
Nuu-chah-nulth fishery against which they are to be balanced, I am not in a position  
to make any further finding as to their validity as justificatory factors in the  
circumstances of this case. I recognize, as well, that there may well be other factors  
that Canada is entitled to consider in negotiating an appropriate recognition of the  
plaintiffs’ fishing rights as part of the reconciliation process: Gladstone, at paras. 73  
and 74. The scope of objectives and interests that may properly be taken into  
account in the balancing process is captured in the following passage from  
Delgamuukw, at para. 165:  
The general principles governing justification laid down in Sparrow, and  
embellished by Gladstone, operate with respect to infringements of aboriginal  
title. In the wake of Gladstone, the range of legislative objectives that can  
justify the infringement of aboriginal title is fairly broad. Most of these  
objectives can be traced to the reconciliation of the prior occupation of North  
America by aboriginal peoples with the assertion of Crown sovereignty, which  
entails the recognition that "distinctive aboriginal societies exist within, and  
are a part of, a broader social, political and economic community" (at para.  
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73). In my opinion, the development of agriculture, forestry, mining, and  
hydroelectric power, the general economic development of the interior of  
British Columbia, protection of the environment or endangered species, the  
building of infrastructure and the settlement of foreign populations to support  
those aims, are the kinds of objectives that are consistent with this purpose  
and, in principle, can justify the infringement of aboriginal title. Whether a  
particular measure or government act can be explained by reference to one  
of those objectives, however, is ultimately a question of fact that will have to  
be examined on a case-by-case basis.  
[884] To illustrate the complexity of the balancing process in which Canada must  
engage, I mention some of the considerations that Canada raises in its submissions.  
[885] Canada has numerous obligations under international treaties, including: the  
International Pacific Halibut Convention; the Pacific Salmon Treaty; the North Pacific  
Anadromous Fisheries Convention; the Canada/U.S. Pacific Albacore Tuna Treaty;  
the Canada/U.S. Pacific Hake/Whiting Agreement; the U.N. Fish Stock Agreement;  
and, the U.N. Accord for Protection of Species at Risk. The goal of the International  
Pacific Halibut Convention, for instance, is to ensure international conservation of  
halibut while ensuring a sustained yield of halibut for the fisheries of Canada and the  
United States. The Convention annually reviews new research and the progress of  
the commercial fishery in order to prepare regulations for the upcoming fishing  
season, and sets the allocations as between Canada and the United States. In turn,  
Canada sets the total allowable catch and, ultimately, the individual quota amounts.  
[886] Canada says that it must balance the interests of the 143 First Nations in  
British Columbia located along the migration routes of Fraser sockeye. Of that total,  
87 First Nations are without access to other marine species. Therefore, these inland  
First Nations are reliant on all Fraser salmon runs, including sockeye, as salmon  
migrate through the plaintiffs’ claimed area. The DFO must take the interests of  
these other First Nations into account in managing the salmon fishery.  
[887] Canada also submits that it must balance provincial interests. The DFO has  
a mandate to manage the fisheries for all Canadians. Canada says that it is relevant  
to examine populations to understand the size of the plaintiffs’ population compared  
to the non-aboriginal population in the province.  
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[888] Canada further submits that it must balance the FSC fishery of all First  
Nations with the plaintiffs’ claims. The DFO adheres to an “adjacency policy” for the  
purposes of FSC fishing. Canada draws attention to the fact that there are 52 First  
Nations on the south coast of British Columbia. On the WCVI, FSC fishing is  
conducted by 14 Nuu-chah-nulth First Nations, as well as the Paacheedaht and  
T’Sou-ke to the south and the Quatsino to the north. Mr. West described how the  
DFO looks at treaty maps to balance requests for changes to FSC fishery areas.  
[889] Geographically, Canada notes that the plaintiffs’ claim area, that is, its  
claimed traditional territory, supports not only aboriginal peoples but also commercial  
and recreational fishers. These competing interests identified by Canada are as  
follows:  
a.  
Commercial: Commercial fishers harvest over 80 species including  
salmon, herring and other pelagic fish, groundfish and invertebrates  
(molluscs and bivalves). The harvest including all species exceeds  
115,000 tonnes annually (2002-2005 average) with a landed value of  
$78 million annually.  
b.  
Recreational: DFO Pacific Region estimates angling efforts in the  
plaintiffs’ claim area is approximately 80,000 angling boat-trips  
annually in recent years for the June to September period. This  
suggests an annual effort of about 450,000 angler days. Mr. Gislason  
estimates that recreational fishing in the tidal waters of the plaintiffs’  
area generated $135 million in angler expenditures in 2005.  
[890] Another interest which must be balanced is the fishing interests of non-  
plaintiff aboriginal groups that hold commercial or communal commercial licences on  
the WCVI and which may overlap with the plaintiffs’ territorial fishing claims. Canada  
says there are more than 20 non-plaintiff First Nation groups that currently have  
commercial fishing licences in DFO management areas that are within the plaintiffs’  
claim area.  
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[891] I mention these by way of illustration only. There are undoubtedly many other  
factors that are appropriate for Canada to balance in its allocation of the fishery. As  
noted, I cannot make any findings on the validity of these interests as justificatory  
factors in the absence of the necessary contextual evidence of a proposed Nuu-  
chah-nulth fishery. Such findings must be left to another day, in the event the  
parties are unable to negotiate the terms of a Nuu-chah-nulth fishery that will both  
recognize Nuu-chah-nulth rights and balance Canada’s legislative objectives and  
societal interests. The plaintiffs must, of course, recognize that I find Canada’s  
legislative objectives to be valid. It is only with respect to Canada’s failure to  
demonstrate minimal impairment that Canada’s evidence falls short. It may seem  
surprising that I have found Canada’s justification evidence to be inadequate given  
the immense volume of evidence Canada tendered on this issue. However, much of  
that evidence focussed on an unnecessarily detailed examination of Canada’s  
fishery regime as a whole and, as I have said, failed to address the question of  
minimal impairment.  
X.  
CROWN OBLIGATIONS CLAIM  
[892] As an alternative to their claims for aboriginal rights and title, the plaintiffs  
claim that the defendants have trust-like or fiduciary obligations to them to ensure  
they have commercial fishing opportunities to earn their livelihood and sustain their  
community. In so pleading, the plaintiffs rely upon the relationship they say arose  
between the Crown and the plaintiffs following the Crown’s assertion of sovereignty  
over the plaintiffs and their claimed territories.  
[893] This is an alternative claim, and counsel during submissions advised that it  
becomes significant only in the event that the plaintiffs do not succeed in their claims  
to aboriginal rights or title. Consequently, I do not propose to consider this argument  
in detail other than to note that an identical argument was raised in Lax Kw’alaams  
Indian Band. At para. 525 of that decision, Satanove J. dismissed this argument  
partly on the basis that:  
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... the historical record, common law and legislation is clear that no special  
right to fish commercially on an exclusive basis in priority to other fishers was  
ever granted to the plaintiffs, as part of the reserve process or otherwise.  
Therefore the plaintiffs lack the foundation for establishing the type of  
fiduciary duty upon which they claim to rely.  
[894] Very similar evidence was tendered in this case, illustrating a sharp dispute  
between the reserve commissioners and the DFO. The DFO, which has jurisdiction  
over fisheries, maintains its position that the reserve commissioners did not have  
authority, as part of the reserve creation process, to set aside exclusive fisheries for  
aboriginals. Consequently, had it been necessary for me to consider this alternative  
claim, I would have reached the same conclusions as did Satanove J. in Lax  
Kw’alaams Indian Band.  
XI.  
REMEDIES  
[895] The plaintiffs seek various declarations that can be summarized as follows:  
a.  
that they have aboriginal rights to harvest all species of fisheries  
resources in their territories for any purpose, including for food, social  
use, ceremonial use, trade, exchange for money or other goods,  
commercial sale and/or sustaining the plaintiffs’ communities;  
b.  
c.  
d.  
that they have aboriginal title to their fishing territories and, as a  
component of that title, rights to harvest all species of fisheries  
resources in their title territories for any purpose;  
that the Fisheries Act and regulations promulgated thereunder  
unjustifiably infringe the plaintiffs’ rights and title, and are inapplicable  
to the plaintiffs to the extent of the infringement; and  
in the alternative, that Canada has breached the duty it owes to the  
plaintiffs by restricting their ability to fish for commercial purposes or to  
otherwise access fisheries resources from their territories.  
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[896] I have found that the plaintiffs are entitled to a declaration that they have  
aboriginal rights to fish and to sell fish. I have already determined that it is  
unnecessary to address the plaintiffs’ aboriginal title claim, and I make no  
declarations in that regard.  
[897] With respect to infringement, the plaintiffs seek the following declaratory  
relief:  
A declaration that the Fisheries Act (Canada) and regulations promulgated  
thereunder infringe upon the Nuu-chah-nulth’s aboriginal rights …  
[898] They set out the specific infringements they allege in their Reply to Canada’s  
Demand for Particulars which, as noted earlier, is attached as Appendix B to these  
Reasons.  
[899] In summary, the plaintiffs plead that s. 7 of the Fisheries Act places the  
authority to issue licences in the “absolute discretion” of the Minister. Pursuant to  
s. 22(1) of the Fishery (General) Regulations the Minister is given a broad and  
unstructured discretion to impose licence conditions. The plaintiffs also plead that  
license limitations conditions and restrictions are effected through policy decisions  
carried out in the Minister’s discretion. They additionally claim that further  
restrictions are imposed through operational decisions. In totality, the plaintiffs plead  
that the exercise of the Minister’s discretion authorized pursuant to the Act and the  
regulations, and effected through policy and operational management decisions,  
infringes their aboriginal right to fish and to sell fish.  
[900] I have concluded that the plaintiffs have proven that the fisheries regulatory  
regime (which includes statutes, regulations and policies) has excluded them from  
the fishery and infringed their aboriginal rights.  
[901] Unlike most aboriginal fishing rights cases, there is no one single or isolated  
regulatory provision in issue in these proceedings. Rather, it is the cumulative effect  
of Canada’s fisheries regime that I have found restricts the Nuu-chah-nulth with  
respect to their ability to fish and their methods of fishing, including location, time,  
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gear and species. It is not possible for me to differentiate, for instance, between  
Canada’s policies with respect to individual quotas and gear restrictions. It is, rather,  
the interaction of the various aspects of the entire regulatory regime that I have  
found to infringe the plaintiffs’ rights.  
[902] Although I have concluded that the entirety of the fisheries regime prima facie  
infringes the plaintiffs’ constitutional rights, I have not ruled on Canada’s justification  
defence. Consequently, although the plaintiffs are entitled to a declaration of the  
existence of their aboriginal rights to fish and to sell fish, they are not yet entitled to a  
declaration of unjustified infringement.  
[903] The parties argued at trial that in the event I found in favour of the plaintiffs, I  
should suspend any remedy for one or two years while they entered into  
negotiations. However, as I have concluded that it is not yet appropriate to grant  
any declarations with respect to infringement or justification, there is no need to  
suspend any remedy. The plaintiffs also submitted that if this Court found in their  
favour, it should retain supervisory jurisdiction over the implementation of any fishery  
negotiated pursuant to these Reasons. In my view, the exercise of supervisory  
jurisdiction is not appropriate at this time because my order contemplates, in the  
absence of successful consultations, further evidence pertaining to justification and  
potentially a further judgment on that issue. In this regard, the outcome is similar to  
Gladstone in which the case was returned to trial for, inter alia, further justification  
evidence.  
[904] The task ahead of Canada and the plaintiffs is a complex one, and they  
should be afforded sufficient time to structure a response to these Reasons. I  
therefore grant the parties two years, with leave to apply for a further extension if  
justified, to consult and negotiate a regulatory regime for the Nuu-chah-nulth that  
recognizes their aboriginal rights. The parties are not required to return to court.  
Hopefully these Reasons will provide a foundation for successful negotiations. What  
I intend, however, is that in the absence of a further order, no such subsequent trial  
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should take place before there has been time for reasonable negotiations to run their  
course. I set this time as a minimum of two years.  
[905] I am confident in the ability of Canada and the plaintiffs to engage in  
constructive consultations and to ultimately arrive at a resolution. Optimistically, the  
findings in this case might assist the parties in furthering their treaty negotiations.  
However, I recognize the complexity of the consultations that will be necessary in  
order to achieve this outcome. I would not expect the parties to return to court to  
adduce further evidence concerning justification unless and until they have  
completed negotiations and consultations.  
[906] In summary, my conclusions are that Canada led evidence to justify the  
entirety of its fisheries regime but not to justify its failure to permit the Nuu-chah-  
nulth to exercise their aboriginal fishing rights, as I have now outlined those rights.  
As noted in Powley, and particularly in the absence of such justification evidence, it  
is not the function of this Court to design an appropriate regulatory scheme. If the  
plaintiffs and Canada are unable to reconcile the various interests at stake during  
the next two years, the parties have leave to return to court to tender, as necessary,  
further evidence concerning Canada’s justification of its infringement of the plaintiffs’  
aboriginal rights to fish and to sell fish. For greater clarity, I provide an example.  
The plaintiffs may propose a terminal fishery on one of the rivers within their fishing  
territories. If, after consultations and negotiations, the parties are at an impasse  
regarding that proposal, the orders I have made would grant them leave to return to  
court in order to determine whether Canada’s refusal could be justified. In citing this  
example, I do not suggest that the parties would return to court in respect of each  
individual proposal but, rather, in respect of proposals for a total scheme for the  
plaintiffs’ commercial fishery. This Court could then further consider Canada’s  
justification defence.  
[907] I am not seized of further hearings in these proceedings.  
[908] The parties have leave to seek further directions at this time, if that is  
necessary, and to speak to costs.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
XII. DISPOSITION  
[909] In summary, the following are the orders I have made:  
Page 295  
1.  
The plaintiffs have aboriginal rights to fish for any species of fish in the  
environs of their territories and to sell fish. The approximate  
boundaries of each plaintiff’s territory is delineated in Appendix A and  
further particularized for each plaintiff at Exhibit 26, with the exception  
of the seaward boundary. The seaward boundary is nine miles from a  
line drawn from headland to headland within each plaintiff’s territory.  
2.  
3.  
The plaintiffs’ claims to aboriginal title to their fishing territories are  
dismissed.  
I conclude that the plaintiffs have established that the Fisheries Act, as  
well as the regulations and policies promulgated thereunder, prima  
facie infringe their aboriginal rights to fish and to sell fish, with the  
exception of their rights to harvest clams and to fish for FSC purposes.  
However, I have not ruled on Canada’s justification defence, and,  
accordingly, I do not make any declaration of unjustified infringement.  
4.  
5.  
The parties now have the opportunity to consult and negotiate the  
manner in which the plaintiffs’ aboriginal rights to fish and to sell fish  
can be accommodated and exercised without jeopardizing Canada’s  
legislative objectives and societal interests in regulating the fishery. To  
the limited extent made necessary by its constitutional jurisdiction, I  
assume that British Columbia will participate in such negotiations.  
In the event that consultations and negotiations in this regard are  
unsuccessful, after a period of two years, Canada has leave to apply at  
a subsequent trial to tender further evidence on justification. In that  
event, the plaintiffs will also have leave to tender further evidence on  
justification. Following any such hearing, and subject to further orders  
of this Court, the plaintiffs have leave to reapply for the declarations  
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they seek respecting infringement and justification and any  
consequential further orders.  
6.  
Both parties have leave to apply for further directions and costs, if  
necessary.  
[910] I am indebted to all counsel for their able and thorough submissions and  
presentation of evidence throughout this trial.  
“N. GARSON, J.”  
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APPENDIX A  
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APPENDIX B  
EXCERPT FROM PLAINTIFFS’ AMENDED RESPONSE TO CANADA’S  
DEMAND FOR FURTHER AND BETTER PARTICULARS  
...  
20.  
Paragraph 35  
(a)  
Please provide facts and particulars of the “laws, regulations and  
policies” enacted by Canada that are referred to in this paragraph;  
(b)  
Please provide facts and particulars of how the “laws, regulations and  
policies” referred to in this paragraph have significantly restricted the Nuu-  
chah-nulth’s ability from 1970 to the present, to exercise their customs,  
practices and traditions associated with harvesting, processing and selling of  
Fishery Resources and Fish Products.  
In this action, the plaintiffs seek a declaration that the Fisheries Act (Canada) and  
regulations promulgated thereunder as presently in force infringe the plaintiffs’  
aboriginal rights. Particulars of this infringement are set out below in response to  
question 22.  
The scheme that is presently in force and its effects on the Nuu-chah-nulth, both as  
described in answer to question 22 below, has evolved since 1970 under various  
iterations of the Fisheries Act (Canada) and regulations. Those iterations of the  
Fisheries Act and regulations are identified below. The structure of regulatory  
scheme in its present form and the infringing effects of that scheme are described in  
answer to question 22.  
To specifically answer the present question, the laws, regulations and policies that  
have restricted the Nuu-chah-nulth’s ability since 1970 to exercise their customs,  
practices and traditions associated with harvesting, processing and selling Fisheries  
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APPENDIX B  
Resources and Fish Products are as follows. To be clear, the plaintiffs only seek  
declarations in respect o those which are presently in force:  
Legislation  
Presently In Force  
• Fisheries Act, R.S.C. 1985, c. F-14  
...  
Regulations  
Presently In Force  
• Fishery (General) Regulations, SOR/93-53  
• Pacific Fishery Regulations, SOR/93-54  
• Pacific Fishery Management Area Regulation, 2007 SOR 2007/77  
• Aboriginal Communal Fishing Licences Regulations, SOR/93-332  
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APPENDIX B  
Policies  
The policies that have restricted the plaintiffs’ ability to exercise their customs,  
practices and traditions associated harvesting, processing and selling fish are, in  
general terms, as follows:  
•
•
•
licencing and limited entry;  
transferability of licences or licence eligibilities;  
quotas, variously described as Individual Quotas or Individual  
Transferable Quotas;  
•
•
•
•
•
species-specific licencing;  
gear restrictions;  
area restrictions;  
“Food, Social and Ceremonial” Fishing; and  
time-limited openings.  
As explained below in answer to question 22, much of Canada’s regulation of the  
Pacific fishery is done through the discretionary authority of the minister and not  
directly through legislative or regulatory instruments. As such, Canada is in a better  
position than the plaintiffs to identify any specific policies to which the above pertain.  
The effects of these policies on the plaintiffs’ fishing activities are described in  
answer to question 22.  
…
22.  
Paragraph 39  
(a)  
Please provide particulars of the alleged infringement by Canada of the  
Plaintiff’s alleged aboriginal rights and aboriginal title pleaded in this  
paragraph.  
In this action, the Plaintiffs claim aboriginal rights and rights as a component of  
aboriginal title to fish for all purposes, including food purposes, social purposes,  
ceremonial purposes, commercial purposes, trade purposes, purposes of exchange  
for money or other goods and purposes of sustaining the plaintiff communities or  
one or more of those purposes. These claimed rights are hereinafter referred to  
collectively as the “Fishing Rights”.  
The plaintiffs’ case is primarily about access to all fisheries resources for all  
purposes, including sale. Thus, the plaintiffs’ primary infringement claim is that  
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APPENDIX B  
Canada restricts Nuu-chah-nulth access to fishing opportunities, especially  
commercial opportunities, in a manner that disregards the plaintiffs’ Fishing Rights.  
Secondarily, the plaintiffs’ case is about restrictions that are imposed on the Nuu-  
chah-nulth regarding methods of fishing, including the locations at which fishing, and  
commercial fishing in particular, may take place and the methods by which the Nuu-  
chah-nulth may use to catch fish. Thus, the secondary infringement claim is in  
respect of these operational infringements.  
What follows is a list of the general infringements claimed by the plaintiffs. It  
addresses various elements of the infringement claim as particularized in paragraph  
22 of the Plaintiffs’ Amended Response to Canada’s Demand for Further and Better  
Particulars (the “Amended Particulars”). The infringements are divided into three  
categories:  
•
•
•
Legislative Infringements, which are infringements apparent on the  
face of the Fisheries Act and Regulations;  
Policy Infringements, which are infringements based on relatively  
permanent management policies adopted by DFO; and  
Operational Infringements, which refer to the season-by-season  
decisions such as when to open a fishery and where fishing is  
permitted.  
A.  
LEGISLATIVE INFRINGEMENT  
The Fisheries Act and regulations impose a general prohibition against fishing  
without a licence (Fisheries Act, R.S.C. 1985, c. F-14, s. 25(1) & Pacific Fishery  
Regulation, 1993 SOR/93/54, ss. 22 and 26) and against selling fish without a  
licence (Fishery (General) Regulation, SOR/93-53, s. 35).  
Section 7 of the Fisheries Act places the authority to issue licences in the “absolute  
discretion” of the Minister. Pursuant to s. 22(1) of the Fishery (General) Regulation,  
the Minister is given a broad and unstructured discretion to impose licence  
conditions.  
Neither the Fisheries Act nor the regulations provide any structure or guidance to the  
Minister’s discretion in respect of how that discretion is to be exercised to  
accommodate the plaintiffs’ Fishing Rights. In the absence of such structure or  
guidance, this legislative scheme, in and of itself, constitutes an infringement of the  
plaintiffs’ Fishing Rights.  
Further, the effects of this unstructured discretion have been to further infringe the  
plaintiffs’ fishing rights by permitting Canada to implement a management scheme  
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APPENDIX B  
that excludes or minimizes the plaintiffs’ participation in the fishery. These effects  
are discussed in sections B and C below.  
B.  
1.  
POLICY INFRINGEMENTS  
Licencing and Limited Entry  
Canada has placed limits on the number of licences that are made available  
generally. This is referred to as “limited entry” or “licence limitation.” This has been  
effected through policy decisions carried out pursuant to the Minister’s discretion and  
not specific legislative or regulatory enactment. Nevertheless, it has been effectively  
a permanent arrangement in the salmon fishery since in or about 1969 and  
expanded to other fisheries since then.  
When limited entry is introduced in a particular fishery, the number of licences that  
are available for that fishery is frozen and access to those licences is, for that year  
and each year thereafter, confined to those who met the qualifications to receive a  
licence the initial year of limited entry or to such persons’ transferees. All of this is  
effected through an exercise of Ministerial discretion pursuant to s. 7 of the Fisheries  
Act.  
In implementing licence limitation in the various fisheries, Canada has not reserved  
or allocated adequate fishing opportunities for the Nuu-chah-nulth. Nuu-chah-nulth  
must acquire fishing opportunities the same as other persons whose interest in the  
fishery is not based on aboriginal rights, aboriginal title or fiduciary or related  
obligations.  
The plaintiffs do not challenge the notion of limited entry licencing per se but rather  
say that Canada has failed to accommodate the plaintiffs’ Fishing Rights within the  
licencing scheme it has chosen to pursue.  
2.  
Transferability of Fishing Licences  
Through the limited entry scheme, Canada has permitted commercial fishing  
licences (or eligibilities to obtain commercial fishing licences) to be made  
transferable. As a result, licences or licence eligibilities have a capital value  
meaning that, except where Nuu-chah-nulth people already hold licences, the  
plaintiffs or their members must purchase licences for market value in order to  
exercise their Fishing Rights.  
The requirement to purchase licences at market values to exercise Fishing Rights is  
an unreasonable restriction on the exercise of those rights and, in many cases  
operates as a complete or near complete barrier to the plaintiffs in accessing the  
fishery.  
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APPENDIX B  
The plaintiffs do not challenge the transferability of licences per se. Rather, they say  
that Canada has failed to ensure that the plaintiffs have appropriate fishing  
opportunities that are commensurate with their Fishing Rights within the licencing  
scheme Canada has chosen to pursue.  
3.  
Access to Adequate Amounts of Fish  
Through various measures, including licence restrictions, time-limited openings and  
quotas (discussed below), Canada imposes limitations on the amount of Fisheries  
Resources that the plaintiffs may harvest to amounts that are insufficient to sustain  
their communities through the exercise of their Fishing Rights. The plaintiffs do not  
challenge such limitations as they apply generally to the fishery but say that Canada  
has failed to provide the plaintiffs with an allocation that is commensurate with their  
Fishing Rights.  
The plaintiffs do not suggest that they have unlimited rights of access to fish but  
rather that insofar as limitations are imposed on their rights of access, those  
limitations must be justified by Canada. The plaintiffs say that the present limitations  
are not justified.  
4.  
Quotas  
Canada has apportioned the Total Allowable Catch (“TAC”) in various fisheries to  
the existing licence (or licence eligibility) holders in those fisheries on a percentage  
basis. Thus, each licence holder is given the opportunity to harvest a fixed share of  
the TAC. This is variously described as a “quota” an “Individual Quota” or an  
“Individual Transferable Quota.”  
Quotas have been implemented pursuant to the Minister’s discretion rather than  
legislative or regulatory enactment. Nevertheless, they are effectively permanent in  
that quota entitlements are routinely renewed on an annual basis and, in most  
cases, those entitlements (or the eligibility to receive those entitlements) are  
transferable.  
In imposing quotas in various fisheries, Canada did not consider the plaintiffs’  
Fishing Rights and failed to apportion an appropriate amount or any of the TAC in  
various fisheries to the plaintiffs commensurate with the plaintiffs Fishing Rights. As  
a result, persons whose interest in the fishery that is not based on Fishing Rights are  
entitled to fishing opportunities that are denied to the plaintiffs.  
In many cases, quotas are transferable. This is facilitated by the permanency of the  
quota allocation. Transferability gives the quota a capital value and requires the  
plaintiffs to purchase quota at market rates in order to exercise their Fishing Rights.  
In many cases, this operates as a complete or near complete barrier to the plaintiffs’  
access to the fishery.  
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APPENDIX B  
The plaintiffs do not challenge quotas per se but rather Canada’s failure to allocate a  
sufficient portion of that quota to the plaintiffs in accordance with the plaintiffs’  
Fishing Rights.  
5.  
Species-Specific Licences  
Canada has imposed a licencing scheme whereby different species of fish are  
separately licenced. This has been done through the gradual expansion of limited  
entry licencing to various fisheries.  
In most cases, limited entry licencing was introduced in respect of various species  
without providing any special programs or opportunities to ensure aboriginal access  
to licences. In all cases it was done without accommodating or considering the  
plaintiffs’ Fishing Rights. As a result, the plaintiffs are denied the opportunity to  
harvest a range of fisheries resources for commercial purposes. The plaintiffs are  
also denied the opportunity of having a community-based fishery where a range of  
fishing opportunities for various species can be shared amongst plaintiff community  
members.  
The plaintiffs do not take issue with single-species licencing per se but only with  
Canada’s failure to address the plaintiffs’ Fishing Rights within that scheme.  
6.  
Gear Restrictions  
Canada has imposed gear restrictions that prevent the plaintiffs from fishing using  
preferred methods and thus infringe the plaintiffs Fishing Rights. These restrictions  
include, without limitation, single-gear licencing in the salmon fishery whereby  
licenced fishermen are confined to using a single gear type.  
Gear restrictions are aimed at reducing the fishing capacity of the commercial fishing  
fleet. However, at no time did Canada consider the particular impact of gear  
restrictions on the plaintiffs’ Fishing Rights in isolation from the impacts on the larger  
fishing fleet whose interest in the fishery is not based on Fishing Rights. Nor has  
Canada considered whether any exceptions or exemptions to the gear restrictions  
might be made for the plaintiffs to accommodate their Fishing Rights.  
7.  
Individual Licences  
With some limited exceptions, commercial fishing licences are issued by Canada to  
individuals, either as personal licences or, more commonly, as vessel-based  
licences (in which case the licence is issued to the owner of the vessel). This is  
inconsistent with the communal nature of aboriginal rights which are collectively held  
by the entire community.  
As a result, the plaintiffs’ communal participation in the fishery is subject to actions of  
individual Nuu-chah-nulth persons. The Plaintiffs Bands and Nations as collectivities  
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APPENDIX B  
have no ability to prevent individual Nuu-chah-nulth persons from selling their  
licences, either on the open-market or through licence buy-back programs  
conducted by Canada, thus further eroding Nuu-chahnulth participation in the  
fishery.  
8.  
“FSC” and “Commercial” Distinction  
Through its licensing scheme, Canada makes a distinction between fishing for “food,  
social and ceremonial” purposes and fishing for commercial purposes. Each year,  
Canada issues communal licences to the Plaintiffs permitting them to fish for certain  
amounts of fish but, with limited exceptions, restricts the uses that can be made of  
that fish to “food, social and ceremonial” purposes. The plaintiffs are not entitled to  
sell fish caught under this communal licence.  
The distinction between fishing for “food, social and ceremonial” purposes and  
fishing for other purposes is a distinction that has been created by Canada and has  
been imposed on the plaintiffs.  
The plaintiffs say that their Fishing Rights are to fish for all species and for all  
purposes.  
Please see additional comments in response to Canada’s Third Request for Further  
and Better Particulars.  
9.  
Bycatch Restrictions  
Under the Fishery (General) Regulations, the plaintiffs are restricted in retaining  
“bycatch”, namely species of fish that are incidentally harvested while targeting  
another species. This infringes the plaintiffs rights by requiring them to discard  
rather than retain fish they harvest.  
10.  
Licence Fees  
Canada imposes annual licence fees through the Pacific Fisheries Regulation.  
These fees are considerable in the case of many fisheries, establish a financial  
impediment to the plaintiffs and operate as a complete or near complete barrier to  
the plaintiffs’ access to the fishery. They also impose an obligation on the plaintiffs  
to pay a fee to exercise their Fishing Rights.  
C.  
OPERATIONAL INFRINGEMENTS  
Operational Infringements herein refer to those restrictions that are imposed through  
in-season management decisions such as where to open a commercial fishery and  
for how long. They are authorized under the Fisheries Act and regulations. The  
plaintiffs do not challenge particular decisions in this action. For instance, the  
plaintiffs do not ask the court to review whether it was appropriate for Canada not to  
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APPENDIX B  
open a particular management area on a particular day. Rather, the plaintiffs submit  
that Canada makes these operational decisions without accommodating or giving  
regard to the plaintiffs’ Fishing Rights and the failure to do so constitutes an  
infringement.  
1.  
Time-Limited Openings  
Canada’s management scheme is based to a large degree on seasonal restrictions  
and time-limited openings. Insofar as these restrict the time that plaintiffs may  
choose to exercise their Fishing rights, time limited openings infringe the plaintiffs’  
rights.  
Time Limited Openings also impair the plaintiffs’ ability to fish commercially in  
sufficient amounts to sustain their communities. Through time-limited openings, the  
plaintiffs must conduct their fishing activities within a specified time which is often  
very limited. The plaintiffs are therefore compelled to invest in more efficient fishing  
vessels and equipment in order to maximize their fishing opportunities within a short  
time. The need for such investments is a financial impediment to the plaintiffs and  
operates as a significant barrier to the plaintiffs’ access to the fishery.  
In addition, time-limited openings favour larger fishing vessels with higher catching  
capacity. This affects the plaintiffs insofar as they use smaller vessels with less  
catching capacity.  
2.  
Area Restrictions  
Canada restricts fishing opportunities in some fisheries by closing the entire coast to  
commercial fishing generally but opening particular Management Areas or subareas  
as defined by the Pacific Fishery Management Area Regulation SOR/2007-77 for  
limited periods of time during the fishing season. This impairs the plaintiffs’ in the  
exercise of their Fishing Rights by restricting or prohibiting access to preferred  
fishing areas and at preferred times.  
The plaintiffs do not say that closing areas to the general commercial fishery is an  
infringement. Rather they say that the application of these general closures to the  
plaintiffs constitutes an infringement.  
The plaintiffs also say that opening certain areas of the fishery to other sectors, such  
as the recreational fishery, while closing them to the plaintiffs is an infringement in  
that it gives preferential access to the fishery to persons whose interest in the fishery  
is not based on aboriginal rights, aboriginal title or fiduciary or related obligations.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 307  
APPENDIX B  
D.  
Infringing Legislation and Regulations  
The following table identifies those legislative and regulatory provisions that infringe  
the plaintiffs’ Fishing Rights either by establishing the unstructured discretionary  
scheme referred to above or by directly restricting Nuu-chah-nulth fishing  
opportunities. The plaintiffs say that these provisions are of no force or effect in  
respect of the plaintiffs and seek a declaration as to their inapplicability.  
Section  
Infringing Action  
Fisheries Act, s. 7  
Confers on the Minister the “absolute discretion” to  
issue licences without any guidance as to how to  
exercise that discretion to accommodate aboriginal  
rights.  
Fisheries Act, s. 25(1)  
Imposes a general prohibition against fishing during a  
close time. Pursuant to the Fishery (General)  
Regulation, most fisheries are closed all year unless  
specifically opened.  
Pacific Fisheries  
Regulations s. 19  
Imposes licence fees for the annual issuance of a  
commercial licences. These fees are considerable in  
respect of many fisheries.  
Pacific Fisheries  
Regulations, s. 22(1)  
Prohibits the use of a vessel for commercial fishing  
unless the vessel is licenced and registered.  
Pacific Fisheries  
Regulations, s. 26(1)  
Imposes general ban on fishing except under  
authority of a licence.  
Pacific Fisheries  
Regulations, ss. 30, 39,  
53, 63  
Restricts the time, place and method (gear type) of  
fishing for various species of fish.  
Fishery (General)  
Regulations, s. 22  
Confers on the Minister broad discretionary powers to  
impose licence conditions that restrict the plaintiffs’  
ability to exercise their aboriginal rights and amend  
such conditions.  
Fishery (General)  
Regulations, s. 33  
Prohibits the retention of by-catch. This prohibits the  
plaintiffs from retaining by-catch, for any purpose.  
Fishery (General)  
Regulations, s. 35(2)  
Prohibits the plaintiffs from selling fish without a  
commercial licence.  


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