Ahousaht Indian Band and Nation v. Canada (Attorney General)
Page 32
which has as its ultimate end the reconciliation of Aboriginal and non-
Aboriginal interests, I venture to suggest that discrete fisheries and
species will need to be considered and addressed on an individual
basis....
[36]
In my opinion, these comments remain apposite to this litigation. I
consider that the approach to and the analysis by Garson J. of the issues she
dealt with in the litigation were adequate and in accord with the type of
analysis mandated by Van der Peet and Lax Kw’alaams. Having
reconsidered the reasons of the trial judge in light of the reasons of the
Supreme Court of Canada in Lax Kw’alaams, I do not consider that any
different result from the decision of the majority of this Court in 2011 is
appropriate.
[37]
I said in my earlier reasons that, in the present case, there remains for
consideration and decision the question of more precise definition of the
rights claimed and possible justification. Therefore, it seems to me that the
process here is as yet incomplete with regard to portions of the proper
methodology outlined as follows by Binnie J. in Lax Kw’alaams at para. 46:
3.
Third, determine whether the claimed modern right has a
reasonable degree of continuity with the “integral” pre-contact
practice. In other words, is the claimed modern right
demonstrably connected to, and reasonably regarded as a
continuation of, the pre-contact practice? At this step, the
court should take a generous though realistic approach to
matching pre-contact practices to the claimed modern right. As
will be discussed, the pre-contact practices must engage the
essential elements of the modern right, though of course the
two need not be exactly the same.
4.
Fourth, and finally, in the event that an Aboriginal right to trade
commercially is found to exist, the court, when delineating
such a right should have regard to what was said by Chief
Justice Lamer in Gladstone (albeit in the context of a Sparrow
justification), as follows:
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 type 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.
[single underlining emphasis added in these 2018 reasons in Ahousaht; all
other emphases from original SCC judgments]
