IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Ahousaht Indian Band and Nation v.  
Canada (Attorney General),  
2018 BCSC 633  
Date: 20180419  
Docket: S033335  
Registry: Vancouver  
Between:  
The Ahousaht, Ehattesaht, Hesquiaht, Hupacasath,  
Mowachaht/Muchalaht, Nuchatlaht, Tla-o-qui-aht and  
Tseshaht Indian Bands and Nations et al  
Plaintiffs  
And  
The Attorney General of Canada and Her Majesty the Queen in Right of the  
Province of British Columbia  
Defendants  
Corrected Judgment: The text of the judgment was corrected at paragraphs 255,  
1108, 1587, 1649, 1723 and 1756 on July 10, 2018  
Before: The Honourable Madam Justice Humphries  
Reasons for Judgment  
Counsel for the Plaintiffs:  
F. Matthew Kirchner  
Lisa C. Glowacki  
Maegen M. Giltrow  
Kate M. Blomfield  
Peter J. Millerd  
Counsel for the Defendant, Attorney  
General of Canada:  
Timothy D. Timberg  
Brett C. Marleau  
Mara E. Tessier  
Geneva M. Grande-McNeill  
Kathleen J. Hamilton  
Lisa Nevens  
Shannon Fenrich  
Counsel for the Intervenors Pacific Prawn  
Fishermen’s Association:  
Christopher Harvey, QC  
Ian Knapp  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 2  
Counsel for the Intervenors BC Seafood  
Alliance & BC Wildlife Federation:  
J. Keith Lowes  
Counsel for the Intervenors Canadian  
Sablefish Association:  
W. Gary Wharton  
Megan B. Nicholls  
Place and Date of Trial:  
Vancouver, B.C.  
March 9-12, 19-20, 23-27, 2015  
April 7-10, 13-17, 20-24, 2015  
May 4-8, 11-15, 2015  
June 2-5, 8-12, 15-19, 22-25, 2015  
September 8-11, 14-18, 21-25, 2015  
October 7-9, 13-16, 19-23, 2015  
November 2-6, 9-10, 12-13,16-17, 2015  
December 2-3, 7, 9-11, 14-15, 2015  
January 18-22, 25-29, 2016  
February 1-3, 5, 15-18, 22-24, 2016  
March 9, 11, 14-15, 2016  
April 5, 2016  
September 21-23, 26-30, 2016  
October 3-7, 11-14, 17-21, 26-28, 2016  
Place and Date of Judgment:  
Vancouver, B.C.  
April 19, 2018  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 3  
Table of Contents  
Paragraph  
Range  
INTRODUCTION  
[1] - [13]  
HISTORY OF THE PROCEEDINGS  
[14] - [54]  
[55] - [71]  
PRINCIPLES FROM SPARROW, VAN DER PEET, AND  
GLADSTONE  
LAX KW’ALAAMS AND PRIOR DECISIONS IN THIS  
[72] - [94]  
ACTION  
ADDITIONAL CHALLENGES  
[95] - [104]  
OVERVIEW OF CANADA’S POSITION  
THE INTERVENORS  
[105] - [153]  
[154] - [194]  
[195] - [228]  
[229] - [299]  
[230] - [257]  
[258] - [299]  
OVERVIEW OF PLAINTIFFS’ POSITION  
DISCUSSION AND MOVING FORWARD  
What Can or Should be Done with the Right as Declared?  
Continuity as it Relates to Species Specificity  
THE EXTENT OF THE COMMERCIAL RIGHT: WHAT CAN [300] - [460]  
BE INFERRED FROM MADAM JUSTICE GARSON’S  
JUDGMENT  
The Right as Claimed in the Pleadings  
Descriptors of Rights from Cases Considered in the Judgment  
Nine-Mile Restriction  
[311] - [312]  
[313] - [323]  
[324] - [334]  
[335] - [340]  
[341] - [386]  
[387] - [393]  
[394] - [460]  
[442] - [455]  
Artisanal Fishery?  
Preferred Means  
Remarks in Chambers  
Discussion of Interpretation of the Extent of the Right  
The Significance of the Use of Trollers in the Salmon  
Demonstration Fishery  
Summary  
[456] - [460]  
[461] - [469]  
[470] - [675]  
STATUTE MILES OR NAUTICAL MILES  
ATTEMPTS AT ACCOMMODATION THROUGH THE  
NEGOTIATIONS  
The Legislative/Regulatory Scheme  
The Policies  
[471] - [476]  
[477] - [496]  
[478] - [484]  
[485] - [489]  
[490] - [496]  
The Salmon Allocation Policy  
Mitigation Policy  
Coastwide Framework  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 4  
History of the Negotiations  
[497] - [654]  
[509] - [585]  
[586] - [604]  
[605] - [611]  
[612] - [620]  
[621] - [654]  
DFO’s Perspective of the Negotiations  
The Plaintiffs’ Perspective of the Negotiations  
Continuation of the Negotiations During Trial  
Summary of Accommodations  
Developments in the Plaintiffs’ Position during the  
Negotiations  
Scale of the Fishery  
[622] - [644]  
[645] - [654]  
[655] - [675]  
[676] - [746]  
[696] - [722]  
[705] - [722]  
[723] - [727]  
[728] - [740]  
[741] - [746]  
[747] - [947]  
Size of Fishing Area  
Results of the Negotiations and Moving Forward  
INFRINGEMENT  
Monitoring Standards  
Electronic Monitoring  
General Comments on Monitoring  
Licence-Based Fishery versus Share-Based Fishery  
How Should the Concept of Infringements be Approached?  
JUSTIFICATION: WHAT IS CANADA REQUIRED TO  
JUSTIFY IN THE CONTEXT OF THIS CASE?  
Legislative Objectives  
Honour of the Crown, Fiduciary Duty  
Duty to Consult  
[769] - [770]  
[771] - [774]  
[775] - [804]  
[790] - [804]  
[805] - [810]  
[811] - [837]  
[821] - [824]  
[825] - [831]  
[832] - [837]  
[838] - [885]  
[843] - [848]  
[849] - [850]  
[851] - [851]  
[852] - [885]  
[886] - [897]  
Discussion  
Minimal Impairment  
Priority  
Plaintiffs’ Argument re Priority  
Canada’s Argument re Priority  
Discussion of Priority  
The Mechanics of the Justification Analysis  
Plaintiffs’ Argument  
Canada’s Argument  
Intervenors’ Position  
Discussion  
Summary of Problems Arising from the Structure of the Present  
Case  
Aspects of Infringement and Justification Applying to All Species  
The Legislative and Regulatory Scheme  
The Policies  
[898] - [902]  
[903] - [913]  
[914] - [934]  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 5  
Salmon Allocation Policy  
[916] - [927]  
[928] - [934]  
[935] - [947]  
[948] - [1083]  
Mitigation Policy  
General Comments on the Priority Factors from Gladstone  
PLAINTIFFS’ FISH PLANS AND CANADA’S LONG TERM  
OFFER  
Some General Comments on the Plans  
[951] - [1083]  
[974] - [984]  
[985] - [999]  
Allocation  
Management  
Monitoring  
[1000] - [1039]  
[1018] - [1020]  
[1021] - [1029]  
[1030] - [1031]  
[1032] - [1039]  
[1040] - [1045]  
[1046] - [1048]  
[1049] - [1057]  
[1058] - [1070]  
[1071] - [1078]  
[1079] - [1083]  
[1084] - [1267]  
[1108] - [1128]  
[1116] - [1116]  
[1117] - [1117]  
[1118] - [1120]  
[1121] - [1121]  
[1122] - [1122]  
[1123] - [1123]  
[1124] - [1124]  
[1125] - [1126]  
[1127] - [1127]  
[1128] - [1128]  
[1129] - [1129]  
[1130] - [1157]  
[1158] - [1195]  
[1169] - [1175]  
[1176] - [1180]  
Standards of Monitoring and Risk to the Fishery  
Dual Fishing  
Bycatch  
Comments on Monitoring Issues  
Consultation on Each Species  
Continuity  
Information on Viability of the Fishery  
Use of PICFI  
Whom do the Plaintiffs Speak For?  
The Evaluation Framework  
SALMON PLAN  
Plaintiffs’ Salmon Plan - March 11, 2014  
Chinook  
Terminal Chinook  
Coho  
Terminal Coho  
Sockeye  
Pink  
Chum  
Bycatch  
Dual Fishing  
Participants, Gear, and Timing  
Canada’s Position on Salmon  
DFO Evaluation  
Canada’s Response to the Plaintiffs’ Proposed Shares  
Chinook  
Coho  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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Terminal Fisheries - Chinook and Coho  
Sockeye  
[1181] - [1184]  
[1185] - [1190]  
[1191] - [1194]  
[1195] - [1195]  
[1196] - [1219]  
[1205] - [1211]  
[1212] - [1215]  
[1216] - [1217]  
[1218] - [1219]  
[1220] - [1266]  
[1223] - [1224]  
[1225] - [1231]  
[1232] - [1246]  
[1247] - [1266]  
[1267] - [1267]  
[1268] - [1513]  
[1290] - [1304]  
[1296] - [1298]  
[1299] - [1300]  
[1301] - [1301]  
[1302] - [1303]  
[1304] - [1304]  
[1305] - [1391]  
[1315] - [1320]  
[1321] - [1349]  
[1350] - [1361]  
[1362] - [1387]  
[1388] - [1391]  
[1392] - [1408]  
[1399] - [1408]  
[1409] - [1446]  
[1414] - [1429]  
[1430] - [1440]  
[1441] - [1446]  
[1447] - [1512]  
[1459] - [1477]  
Pink  
Chum  
Plaintiffs’ Position  
Allocations of Species  
Management and Monitoring  
Policies  
Reaction to the LTO  
Discussion  
The Plaintiffs’ Proposed Shares  
Internal Logic  
Sparrow/Gladstone Factors  
Conclusion  
Result  
GROUNDFISH  
The Plaintiffs’ Groundfish Plans  
Halibut  
Lingcod  
Dogfish  
Sablefish  
Rockfish and Other Species  
Canada’s Argument  
Size of Fishery  
Allocations  
Management  
Monitoring/Catch Reporting  
Sablefish  
SFA Argument  
Outside Rockfish  
Plaintiffs’ Argument  
Size of the Groundfish Allocation Sought by Plaintiffs  
Management  
Monitoring  
Discussion  
Allocations  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 7  
Management and Monitoring  
Rockfish  
[1478] - [1501]  
[1502] - [1505]  
[1506] - [1512]  
[1513] - [1513]  
[1514] - [1612]  
[1529] - [1532]  
[1533] - [1565]  
[1566] - [1578]  
[1579] - [1608]  
[1609] - [1612]  
[1613] - [1723]  
[1633] - [1638]  
[1639] - [1644]  
[1645] - [1678]  
[1679] - [1689]  
[1690] - [1717]  
[1718] - [1723]  
[1724] - [1735]  
[1736] - [1753]  
[1754] - [1757]  
[1758] - [1782]  
[1783] - [1783]  
-
Sablefish  
Result  
CRAB  
The Plaintiffs’ Crab Plan, 2014  
Canada’s Position  
Plaintiffs’ Argument  
Discussion  
Result  
PRAWN  
Plaintiffs’ Prawn Plan, 2014  
The PPFA’s Argument  
Canada’s Argument  
Plaintiffs’ Argument  
Discussion  
Result  
GOOSENECK BARNACLES  
HERRING  
DIVE FISHERIES  
REMEDIES  
SUMMARY OF FINDINGS  
ACRONYMS  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 8  
INTRODUCTION  
[1]  
The plaintiffs are five First Nations, whose territories are located on a strip of  
varying widths along the West Coast of Vancouver Island (WCVI), about 160 miles  
long as the crow flies. They are part of the fourteen Nuu-chah-nulth (NCN) group of  
Nations.  
[2]  
The population of the five plaintiff Nations is slightly less than 5,000 people.  
The majority (about 2,083 as of 2014) belong to the Ahousaht Nation, which is  
located on Flores Island just north of Tofino, British Columbia. The Ehattesaht  
(pop. 462), Mowachaht/Muchalaht (pop. 603), and Hesquiaht (pop. 722) Nations are  
located to the north of Ahousaht. The Tla-o-qui-aht (pop. 1,074) Nation is located to  
the south of Ahousaht.  
[3]  
This trial has taken place in two stages, although such a bifurcation of the  
proceedings was not anticipated by either party when the trial began.  
[4]  
The first part of the trial was heard by another judge, Madam Justice Garson  
(then of the Supreme Court of British Columbia), who issued reasons in 2009  
(2009 BCSC 1494).  
[5]  
In their pleadings, set out at para. 10 of Garson J.’s decision, the plaintiffs  
asserted an aboriginal right to:  
harvest [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 “to sell, trade or exchange” those fisheries resources for a variety of alternative  
purposes: on a commercial scale, or to sustain their community, or for money or  
other goods.  
[6]  
Madam Justice Garson declared that the plaintiffs have an aboriginal right in  
these terms: “to fish for any species of fish within their Fishing Territories and to sell  
that fish”.  
 
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 9  
[7]  
The Fishing Territories were defined as a nine-mile strip from headland to  
headland. She also declared that the entire fisheries management regime,  
consisting of legislation, regulations, and policies, was a prima facie infringement of  
that right. She then adjourned the trial to allow the parties to negotiate a fishery  
based on her declarations, and, in the event the negotiations were unsuccessful, to  
return to court on the issue of whether Canada could justify its legislative, regulatory  
and policy regimes as they apply to the plaintiffs’ aboriginal fishery. She declared  
herself not seized of further proceedings, which have now come before this court.  
The scope and purpose of this stage of the trial has been a matter of some debate  
throughout the proceedings.  
[8]  
There were originally eleven plaintiffs in this action. The initial Statement of  
Claim claimed aboriginal title by each of the eleven, as well as aboriginal rights.  
Some of the title claims overlapped. Madam Justice Garson ordered the plaintiffs to  
choose one or more Nations whose claims to title did not overlap, and the claims of  
those plaintiffs would proceed in this action. Her ruling on that interlocutory issue is  
found at 2007 BCSC 1162. The present five plaintiffs proceeded to trial with their  
claims. The remaining claims are yet to be tried.  
[9]  
Madam Justice Garson decided each plaintiff Nation is a collective connected  
to the group that occupied their territory at or about the time of contact. Whether the  
plaintiffs are legal entities and can bind all their members or how membership is  
determined was not before me.  
[10] Before outlining the history of these lengthy proceedings, I will say that,  
notwithstanding the deep division between the parties, counsel were uniformly  
helpful, cooperative, and respectful of each other and the court. Preparation was  
extensive and the court hours were used efficiently. This made the long trial process  
much less arduous than it could have been.  
[11] However, with great respect to both sides and all the extensive work they put  
in, this stage of the trial has been fraught with fundamental difficulties that have  
greatly complicated the task of this court. First, there was confusion arising from the  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 10  
previous judgments in this case, and I have attempted to reach conclusions on the  
issues arising from that confusion in order to move forward. Second, there was a  
fundamental difference in the respective approaches of the parties to the analysis of  
justification. As well, the evidence in support of the respective positions was far from  
complete. I will discuss all of this more fully later in these reasons.  
[12] I have made a series of findings in respect of unjustified infringements, but  
the result is not a workable fishery ready to be implemented, because, as I must  
emphasize, the court cannot design a fishery. The task of allocating fishery  
resources belongs to the government (see, for example, R. v. Gladstone, [1996]  
2 S.C.R. 723, at paras. 65-66). There is much work still to be done by the  
Department of Fisheries and Oceans [“DFO”] and by the plaintiffs.  
[13] I have, at the conclusion of these reasons, invited the parties to appear before  
me to assist where they can in drafting an appropriate and precise order which will  
assist in moving this matter forward.  
HISTORY OF THE PROCEEDINGS  
[14] The history of this action is complex, and is interwoven with another action on  
aboriginal fishing rights (Lax Kw’alaams Indian Band v. Canada), which proceeded  
slightly ahead of this action. The decision of the Supreme Court of Canada in  
Lax Kw’alaams has influenced the course of the present action.  
[15] Before setting out a narrative history of this action, I will list a series of  
material decisions in chronological order:  
-
-
-
Lax Kw’alaams Indian Band v. Canada (Attorney General), 2008  
BCSC 447, [2008] 3 C.N.L.R. 158: trial decision, April 16, 2008;  
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009  
BCSC 1494, [2010] 1 C.N.L.R. 1: trial decision, November 3, 2009;  
Lax Kw’alaams Indian Band v. Canada (Attorney General), 2009  
BCCA 593, 314 D.L.R. (4th) 385: appeal decision, December 23, 2009;  
 
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 11  
-
-
-
-
-
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011  
BCCA 237, 333 D.L.R. (4th) 197: argued December 6-10, 2010; appeal  
decision, May 18, 2011;  
Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC  
56, [2011] 3 S.C.R. 535: argued February 17, 2011; appeal decision,  
November 10, 2011;  
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011  
SCAA No. 353: leave to appeal denied but sent back to BCCA for  
reconsideration, March 29, 2012;  
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013  
BCCA 300, 364 D.L.R. (4th) 26: reconsideration appeal decision, July  
2, 2013; and  
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2011  
SCAA No. 35: leave to appeal denied, January 30, 2014.  
[16] I will now review the history of these proceedings.  
[17] On November 3, 2009, Garson J. issued the following declarations and orders  
following a lengthy trial that took place over 120 days at various times from April  
2006 to March 2009:  
THIS COURT ORDERS AND DECLARES that:  
1.  
The Plaintiffs proceeding in this phase of the action, the Ehattesaht,  
Mowachaht/Muchalaht, Hesquiaht, Ahousaht and Tla-o-qui-aht (the  
“Proceeding Plaintiffs”), have aboriginal rights to fish for any species  
of fish within their Fishing Territories (as defined in Paragraph 2) and  
to sell that fish.  
2.  
The approximate boundaries of each Proceeding Plaintiff’s Fishing  
Territory are delineated in the maps attached hereto as Appendix A,  
with the exception of the seaward boundary. The seaward boundary  
of each Proceeding Plaintiff’s Fishing Territory is nine miles from a  
line drawn from headland to headland within each Proceeding  
Plaintiff’s Fishing Territory.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 12  
3.  
The cumulative effect of the fisheries regime including the Fisheries  
Act, R.S.C. 1985 c. F-14 and the regulations and policies promulgated  
thereunder both legislatively and operationally prima facie infringes  
the Proceeding Plaintiffs’ aboriginal rights to fish and to sell fish, with  
the exception of the Proceeding Plaintiffs’ rights to harvest clams and  
to fish for food, social and ceremonial purposes which rights are not  
infringed.  
4.  
With respect to the prima facie infringement declared in paragraph 3  
of this Order, Canada has a duty to consult and negotiate with the  
Proceeding Plaintiffs in respect of the manner in which the Proceeding  
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.  
THIS COURT ORDERS that:  
5.  
The claims of the Proceeding Plaintiffs to a declaration of aboriginal  
title to their Fishing Territories are dismissed as being unnecessary to  
decide in light of the other relief granted herein.  
6.  
7.  
No declaration is made at this time as to whether the prima facie  
infringement of the Proceeding Plaintiffs’ aboriginal rights is justified.  
If Canada and the Proceeding Plaintiffs are unable to reconcile their  
various interests through consultation and negotiation, either party  
may, after a period of not less than two years from the date of this  
judgment, apply to the court for a determination of whether the prima  
facie infringement of the Proceeding Plaintiffs’ aboriginal rights is  
justified and any of the parties will have leave to tender further  
evidence on justification in that subsequent proceeding.  
8.  
Each party will have leave to apply for an extension of the two year  
period, if justified, to consult and negotiate.  
[18] As mentioned, the parties had not expected this trial to proceed in two stages.  
However, in her reasons, Garson J. said that although Canada had led extensive  
evidence on justification of its entire fisheries regime, it did not know until she  
declared the right that it should be making decisions in the context of a declared  
aboriginal right, not merely in the context of aboriginal interests. As well, at  
para. 871, she noted and appeared to accept Canada’s position that the plaintiffs  
had led no evidence of “the level of participation in the commercial fishery that would  
be sufficient to meet their requirements or expectations”.  
[19] Therefore, as set out in the declarations at para. 4, she adjourned the trial to  
allow consultation and negotiation on:  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 13  
the manner in which the plaintiffs’ rights can be accommodated and  
exercised without jeopardizing Canada’s legislative objectives and societal  
interests in regulating the fishery.  
[20] Madam Justice Garson stated in her reasons that she was not seized of  
further matters in the action, and in fact she had been appointed to the Court of  
Appeal in May 2009.  
[21] Since the declarations, representatives of DFO and the plaintiffs have been  
involved in a series of meetings and discussions, as noted above, purportedly in  
response to the order at para. 4. I say “purportedly” because the parties do not  
agree on whether or to what extent these meetings can be characterized as part of  
Canada’s duty to consult generally or as part of the “duty to consult and negotiate  
with the…Plaintiffs” as set out in the order at para. 4. As well, there is an issue  
surrounding the meaning and content of the term “consultation”, as used in the case  
law, versus “negotiations”, which I will mention later in these reasons. However, for  
convenience, I will refer to that series of meetings and discussions as “the  
Negotiations”.  
[22] The right-based fishery that has been the subject of the Negotiations is  
referred to by both the plaintiffs and DFO as the T’aaq-wiihak, which means  
“permission to fish”.  
[23] The Negotiations involved two branches: the Main Table, where the actual  
informed discussions took place between the lead negotiators and their respective  
teams, and the Joint Working Group comprised of technical people and scientists  
who provided advice and information to the Main Table.  
[24] The Negotiations, which began in 2010, have not been successful in  
“reconcil[ing] their various interests” pursuant to the 2009 order’s seventh term.  
However, there have been developments since 2009 which have complicated the  
task before this court. I will explain those developments later in these reasons.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 14  
[25] In 2012, while discussions continued, the plaintiffs reactivated the litigation for  
the return to court on the second stage of the trial, as contemplated in the orders at  
para. 7.  
[26] This stage of the trial commenced in March 2015. It continued for about 150  
days, including six weeks of submissions and over 1,000 pages of written argument.  
[27] British Columbia did not participate in this stage of the trial. I permitted three  
intervenors (the Pacific Prawn Fishermen’s Association [“PPFA”], the Sablefish  
Fishermen’s Association [“SFA”], and the BC Seafood Alliance) to file affidavits upon  
which short cross-examinations took place at trial, and to make brief submissions at  
the conclusion of the evidence (see the ruling at 2015 BCSC 2166). In that decision,  
I referred to the remarks of the Supreme Court of Canada in Lax Kw’alaams. After  
noting in that decision at para. 12 that aboriginal rights litigation is of great  
importance to non-aboriginal communities as well as to aboriginal communities, and  
to the economic well-being of both, the court stated that “the existence and scope of  
aboriginal rights must be determined after a full hearing that is fair to all the  
stakeholders”.  
[28] Much of the evidence called by Canada to justify its overall fisheries  
management regime had been called before Garson J. and had to be re-called and  
updated in this stage of the trial.  
[29] During the many weeks of evidence, DFO called Susan Farlinger, Regional  
Director General (now assistant to the Deputy Minister); various senior managers,  
including Rebecca Reid, Regional Director of Fisheries Management (now Regional  
Director General); Sarah Murdoch, Regional Director for Treaties and Aboriginal  
Policy; Stuart Kerr, the lead negotiator at the Main Table; and a series of managers  
and scientists to do with each species of fish. They also called, Michelle James, who  
was qualified to give expert evidence on fisheries management, policy, and practice.  
Lengthy affidavits were filed by Ms. Murdoch, Paul Preston, Andrew Thomson and  
Neil Davis, each of whom were called at trial.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 15  
[30] The plaintiffs called Dr. Don Hall, zoologist and biologist, who is employed as  
Fisheries Program Manager by the Uu-a-thluk, which is a federally funded  
organization representing overall fisheries interests of the fourteen NCN Nations.  
The plaintiffs also called Alex Gagne, the T’aaq-wiihak Fisheries Coordinator; Ken  
Watts, also from the NTC fisheries program; Francis Frank, their lead negotiator at  
the Main Table; and Dr. Morishima, an expert on fisheries planning and  
management, who is involved with tribal fisheries in Washington State. They also  
called a number of witnesses who are involved to a greater or lesser extent in the  
fishery and wish to participate in a right-based fishery: Andrew Webster (Ahousaht),  
Elmer Frank (Tla-o-qui-aht), David Miller (Ehattesaht), William Amos (Hesquiaht),  
Josh Charleson (Hesquiaht), Jamie James (Mowachaht/Muchalaht).  
[31] Objection was taken to a reply report from Dr. Morishima. It was ruled  
admissible (see rulings at 2016 BCSC 281 and 2016 BCSC 1124).  
[32] Affidavits were filed from representatives of the intervenors: Bruce Turris,  
Chris Acheson; Christopher Sporer; Brian Mose; Robert Alford. Brian Mose, a  
witness called by the SFA to explain the deep-sea trawl fishery, was cross-examined  
on his affidavit, as was Robert Alford for the prawn fishery.  
[33] I will refer to the evidence of some, but perhaps not all, of the numerous  
witnesses at relevant portions of the reasons. I could not do justice to the level of  
detail in the evidence of the scientific and species management witnesses, either  
from Canada or from Dr. Hall or Alex Gagne for the plaintiffs. In my view, while  
Canada’s witnesses managed to convey the complexity of fisheries science and  
management and their own dedication to conservation of the fishery (shared by  
Dr. Hall and the other witnesses for the plaintiffs), much of the specific detail in large  
part is not necessary for the analysis facing this court because the task of this court  
is not to design a fishery. It is to conclude the trial pursuant to Garson J.’s order at  
para. 7 as confirmed by the Court of Appeal.  
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[34] There were significant developments shortly before the commencement of  
this stage of the trial in March 2015, which formed part of the evidence before this  
court.  
[35] In 2014, the plaintiffs submitted to DFO a series of detailed proposals or plans  
for various fisheries (“the fish plans”). The plaintiffs rely on these plans in the  
justification analysis.  
[36] In December 2014, the DFO presented the plaintiffs with a Long Term Offer  
[“LTO”] regarding salmon and herring. The LTO also contained an offer to negotiate  
plans for other fisheries. Canada relies on the LTO in the justification analysis, but  
also takes the position that the justification analysis should be further adjourned to  
allow demonstration fisheries (small experimental fisheries with flexible rules,  
implemented on a test basis) to take place for species other than salmon. Canada  
expects that further discussion and negotiation, informed by the conclusions this  
court reaches, would follow upon the receipt of these reasons.  
[37] Also just prior to trial, Canada received instructions to release all the  
Ministerial briefing notes that had been sent by regional staff to the Minister in  
Ottawa. The plaintiffs thus became aware of factors which they say are significant in  
determining why the Negotiations have been unsuccessful: they say DFO was not  
given a mandate to negotiate in any meaningful way until late 2014, and the extent  
of this mandate was not clarified until mid-2015 while trial was ongoing.  
[38] Meetings and communications continued during the trial, thus making the  
evidence at trial an ongoing cumulative process until the parties declared their  
respective cases closed. Evidence was completed in March 2016 and submissions  
began in mid-September 2016, completing at the end of October.  
[39] Meanwhile, following the first stage of the trial, Canada appealed Garson J.’s  
decision. The appeal was dismissed by the Court of Appeal on May 18, 2011, with  
some minor variations (2011 BCCA 237). The court, upon application by an  
intervenor on behalf of the geoduck fishery, excluded that fishery from “any species”  
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on the basis that it is such a technically difficult fishery to conduct on a commercial  
basis that it could not have been part of an ancestral trading practice. Relying on  
evidence that had been before Garson J., the court found she had erred in extending  
the aboriginal right to the geoduck fishery, saying, at para. 69:  
As can be seen from this narrative, because the commercial geoduck fishery  
is what I would describe as a high tech fishery of very recent origin, there can  
be no viable suggestion that the ancestors of the respondents could have  
participated in the commercial harvesting and trading of this particular marine  
resource at some time before contact with explorers and traders late in the  
18th century. There is simply no adequate basis in the evidence to support an  
ancestral practice that would translate into any modern right to participate in  
harvesting and selling this marine food resource.  
[40] In addition to excluding geoduck from “any species”, the two-year period  
given to the parties to consult and negotiate was extended to May 18, 2012, with  
leave to either party to apply to extend the period.  
[41] Canada appealed to the Supreme Court of Canada.  
[42] Meanwhile, Lax Kw’alaams Indian Band v. Canada, 2008 BCSC 447, had  
been decided at the trial level by Madam Justice Satanove of this court on April 17,  
2008, just prior to the commencement of the main body of evidence in the trial  
before Garson J. That case concerned a First Nations group from the coast of  
mainland British Columbia which was making a claim similar to the one presently  
before this court. Madam Justice Satanove found that the Lax Kwalaams had not  
proven an aboriginal right to a commercial fishery, with the exception of eulachon.  
That decision was upheld on appeal to the Court of Appeal (2009 BCCA 593), just  
after the release of Garson J.’s decision, and was further upheld by the Supreme  
Court of Canada (2011 SCC 56).  
[43] When the present case reached the Supreme Court of Canada, it was  
remanded back to the Court of Appeal on March 29, 2012, with no reasons, but with  
a direction that the case be reconsidered in accordance with the Supreme Court of  
Canada’s recent decision in Lax Kw’alaams.  
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[44] In its reconsideration, the Court of Appeal again dismissed the appeal and  
confirmed its order from May 18, 2011 (see the decision at 2013 BCCA 300), but its  
reasons have created some confusion about the scope of the justification stage of  
the trial presently before me. I will discuss this in more detail later.  
[45] Canada applied to the Supreme Court of Canada for leave to appeal the  
reconsideration. This application was unsuccessful on January 30, 2014. Evidence  
on this stage of the trial began, as already noted, in March 2015.  
[46] Thus, since the evidence in this case was adduced before Garson J. and she  
delivered her judgment, the Court of Appeal rendered its decision in Lax Kw’alaams,  
the Supreme Court of Canada also rendered its decision in that case, and of course,  
the Court of Appeal has rendered two decisions in this case. In other words, there  
has been much judicial consideration of these issues since Garson J. issued her  
reasons. All she and the present parties had the advantage of considering was the  
trial decision in Lax Kw’alaams.  
[47] The issue ostensibly at the heart of this stage of litigation is whether Canada  
has justified the infringements, declared very broadly on a prima facie basis, that  
prohibit the plaintiffs from exercising their aboriginal right. I say “ostensibly” because  
this stage of trial has been largely occupied with differing views of what this court  
should or can actually accomplish, given various problems arising from previous  
judgments in this case.  
[48] The parties agree that a justification analysis is required, either now or at  
some future time (the plaintiffs say now, Canada says in the future), in respect of  
each species of fish for which the plaintiffs have submitted fishing proposals. The  
following fisheries are addressed in the plaintiffs’ fish plans:  
o five species of salmon  
. chinook (suu’haa) - both ocean and terminal,  
. coho (cu’ẁit)- ocean and terminal,  
. sockeye (miɁhaat),  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 19  
. pink (č’aapi), and  
. chum (hinkuuas)  
o groundfish  
. halibut,  
. lingcod,  
. dogfish,  
.
sablefish,  
. various rockfish  
o crab  
o prawn  
o herring  
o gooseneck barnacles  
[49] Sea cucumbers, red sea urchin, oysters, sardines, and tuna were mentioned  
in passing during submissions, but the plaintiffs have not submitted plans for those  
species. It is Canada’s position that there is no infringement to justify in respect of  
oysters, red sea urchin, sea cucumber, tuna, or gooseneck barnacles. The sardine  
and herring fisheries on the WCVI are currently closed.  
[50] Throughout the Negotiations, the plaintiffs have presented various draft fish  
plans to DFO. These proposals have changed and evolved over the years. In mid-  
2014, as mentioned, the plaintiffs presented a series of plans upon which they rely  
for the justification analysis. The plaintiffs say that Canada should have to justify  
rejecting these plans.  
[51] Canada does not agree with this approach. Canada says the justification  
analysis is more complex and nuanced than simply requiring them to justify not  
accepting the 2014 proposals. I will discuss this below in the section entitled The  
Mechanics of Justification.  
[52] In the Negotiations, the parties have differed on every issue, including what  
was envisioned by Garson J. as to the scale or scope of the right, allocations of  
various species, the concept of priority, the meaning of preferred means of fishing,  
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vessel size, standards of monitoring and catch reporting, the need for independent  
monitoring (particularly electronic monitoring or at-sea observers), dual fishing  
(fishing for commercial and home use -- the latter also referred to as Food, Social  
and Ceremonial [FSC] -- in one trip), management of multi-species catches in one  
trip, the significance of impact on or by other sectors of the fishery, and whether the  
plaintiffs agreed to be bound by the area declared by Garson J. as their fishing  
territories (the Court Defined Area [“CDA”]). There currently appears to be at least  
temporary agreement on the last issue: the plaintiffs agree that their right-based  
fishery operates in the CDA.  
[53] All the other issues remain unresolved and have been the subject of  
extensive evidence by both parties. The litigation has also brought forward basic  
disagreements on several matters arising from an interpretation of Garson J.’s  
judgment. As well, fundamental issues have arisen as a result of the Court of  
Appeal’s reasons, particularly the reconsideration.  
[54] The plaintiffs, Canada, and the intervenors take different positions on these  
questions, which are difficult and troubling, and which occupied at least half of the  
submissions. I will deal with all of these issues later in these reasons.  
PRINCIPLES FROM SPARROW, VAN DER PEET, and GLADSTONE  
[55] I will first set out briefly the basic principles from the cases that have formed  
the basis for the analysis of aboriginal fishing rights for the past decades. I will then  
review the prior decisions in this action and the fundamental ambiguities stemming  
from them that have allowed for such wide divergence in both the Negotiations and  
the positions taken in the litigation.  
[56] Canada, the plaintiffs, and the intervenors all refer to the same cases. Each  
case was analyzed in detail. All counsel are thoroughly familiar with these cases  
because they have lived with them through other actions. While the basic principles  
are agreed upon, interpretations differ, both generally and in their application to this  
case.  
 
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[57] I do not intend to go through the cases in any detail. Madam Justice Garson  
did a thorough job of examining the relevant cases (with the exception of Lax  
Kw’alaams from the Court of Appeal and Supreme Court of Canada, which she did  
not have).  
[58] This case deals with the Constitution Act, 1982, s. 35(1):  
The existing aboriginal and treaty rights of the aboriginal peoples of Canada  
are hereby recognized and affirmed.  
[59] This section is not contained in the Charter of Rights and Freedoms, and so is  
not subject to the Charter, s. 1. Thus the courts have created another way to deal  
with the interaction and reconciliation of government objectives and sovereignty with  
aboriginal rights: the concept of justification.  
[60] The only cases where the principles of justification have been discussed are  
regulatory prosecutions dealing with one species and one impugned regulation  
under which a charge had been laid, specifically, R. v. Sparrow, [1990] 1 S.C.R.  
1075, and R. v. Gladstone, [1996] 2 S.C.R. 723. Thus, the present case is unique in  
that it is a civil case, and also in that justification of a widely-framed prima facie  
infringement of an aboriginal right to a multi-species commercial fishery has not yet  
been the subject of litigation. In Lax Kw’alaams, in view of the limited declaration  
obtained, no justification exercise was necessary.  
[61] I will set out the principles briefly.  
[62] The Supreme Court of Canada in Sparrow set out the basic framework for  
dealing with a claimed aboriginal right. This case concerned a charge of fishing for  
food fish with a drift net longer than permitted, and thus it was not dealing with a  
commercial right. The court must determine:  
1.  
2.  
3.  
Is there an existing aboriginal right?  
Has the aboriginal right been extinguished?  
Has there been a prima facie infringement of the right?  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 22  
-
does the legislation in question have the effect of interfering with  
an existing aboriginal right?  
-
-
-
is the limitation unreasonable?  
does the limitation impose undue hardship?  
does the regulation deny the holders of the right their preferred  
means of exercising that right?  
4.  
Can that infringement be justified?  
-
-
is there a valid legislative objective?  
has the honour of the Crown, which is at stake in dealings with  
aboriginal peoples, been taken into account?  
-
-
-
has there been minimal infringement?  
is the regulation in keeping with the appropriate priority?  
has the aboriginal group been consulted?  
[63] The court explained the necessity for the principle of justification at  
para. 1109:  
There is no explicit language in the provision that authorizes this Court or any  
court to assess the legitimacy of any government legislation that restricts  
aboriginal right. Yet, we find that the words “recognition and affirmation”  
incorporate the fiduciary relationship referred to earlier and so import some  
restraint on the exercise of sovereign power. 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 powers 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.  
[64] Having set out the framework for analysis, the Court returned the case to the  
trial court for a new trial on the issues of infringement and justification.  
[65] The next two cases were issued together and concerned a claimed  
commercial right: R. v. Van der Peet, [1996] 2 S.C.R. 507, which dealt with selling  
salmon without a licence; and Gladstone, which concerned selling herring spawn on  
kelp without a proper licence.  
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[66] The court in Van der Peet considered how a court should assess a claim to  
an aboriginal right. The following questions are pertinent:  
-
-
what is the precise nature of the right being claimed?  
is the activity an element of a practice, custom or tradition integral to  
the distinctive culture of the aboriginal group claiming the right?  
-
does reasonable continuity exist between the pre-contact practice and  
the contemporary claim?  
[67] No right was proven in Van der Peet. However, in Gladstone, the court found  
a right to the commercial trade of herring spawn on kelp to be proven and sent the  
matter back for a trial on justification. The court developed a different approach to  
justification for a claimed commercial right, which, unlike a right to fish for food,  
social and ceremonial use, has no internal limitation to control the fishing. That is,  
whereas at a certain point fish caught for food will be sufficient, fish caught for sale  
will not be constrained except by abundancy and market demand.  
[68] In its discussion of justification, the court in Gladstone said the government  
must demonstrate:  
-
-
it was acting pursuant to a valid legislative objective;  
its actions were consistent with its fiduciary duty towards aboriginal  
peoples;  
-
for a commercial right, which has no internal limitation, it has taken the  
existence of aboriginal rights into account in allocating the resource  
and has allocated the resource in a manner respectful of the fact that  
those rights have priority over the exploitation of the fishery by other  
users, both as to process and allocation.  
[69] The court also noted that limitations placed on the rights are equally  
necessary to reconciliation, and include conservation, economic and regional  
fairness, and the recognition of the historical reliance upon and participation in, the  
fishery by non-aboriginal groups.  
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[70] These principles, albeit developed in the more constrained parameters of  
regulatory prosecutions, were referred to and adopted by the Supreme Court of  
Canada in Lax Kw’alaams, which I will set out in the next section of these reasons.  
[71] It is the difficulty in reconciling the process enunciated in Lax Kw’alaams with  
the previous decisions in this case, in particular the British Columbia Court of  
Appeal’s reconsideration decision, that has lengthened and complicated this stage of  
trial.  
LAX KW’ALAAMS AND PRIOR DECISIONS IN THIS ACTION  
[72] One of the few things that Canada, the plaintiffs, and the intervenors agree  
upon is that the form of order entered pursuant to the reconsideration decision of the  
Court of Appeal, insofar as it purports to affirm as final the declaration of the right  
made by Garson J., is at odds with the content of the court’s reasons.  
[73] The plaintiffs say the order governs; Canada and the intervenors say this  
cannot be, given the content of the reasons and the decision of the Supreme Court  
of Canada in Lax Kw’alaams. They say this court must follow the directions of the  
Court of Appeal and the Supreme Court of Canada precisely, if this process is to  
make sense at all. I will examine the parties’ respective positions in more detail later.  
[74] At this stage it would be convenient to set out the analysis required by Lax  
Kw’alaams in respect of the delineation of a commercial fishing right. This will  
provide context for the discussion of why the parties are so far apart on their  
positions as to what this court should or should not do at this stage of the trial in light  
of the Court of Appeal’s reasons and order.  
[75] The Supreme Court of Canada in Lax Kwalaams began with a discussion of  
the importance of the precise characterization of a claim:  
[40]  
The heart of the Lax Kw’alaams’ argument on this point is that “before  
a court can characterize a claimed aboriginal right, it must first inquire and  
make findings about the pre-contact practices and way of life of the claimant  
group”…. I would characterize this approach as a “commission of inquiry”  
model in which a commissioner embarks on a voyage of discovery armed  
 
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only with very general terms of reference. Quite apart from being inconsistent  
with the jurisprudence that calls for “characterization of the claim” as a first  
step, the “commission of inquiry” approach is not suitable in civil litigation,  
even in civil litigation conducted under rules generously interpreted in  
Aboriginal cases to facilitate the resolution in the public interest of the  
underlying controversies.  
[41]  
I would reject the appellants’ approach for three reasons. Firstly, it is  
illogical. The relevance of evidence is tested by reference to what is in issue.  
The statement of claim (which here did undergo significant amendment)  
defines what is in issue. The trial of an action should not resemble a voyage  
on the Flying Dutchman with a crew condemned to roam the seas  
interminably with no set destination and no end in sight.  
[42]  
Secondly, it is contrary to authority. In Van der Peet, Lamer C.J.  
emphasized that the first task of the court, even in the context of a defence to  
a regulatory charge, is to characterize the claim:  
…in assessing a claim to an aboriginal right a court must first identify  
the nature of the right being claimed; in order to determine whether a  
claim meets the test of being integral to the distinctive culture of the  
aboriginal group claiming the right, the court must first correctly  
determine what it is that is being claimed. The correct characterization  
of the appellant’s claim is of importance because whether or not the  
evidence supports the appellant’s claim will depend, in significant part,  
on what, exactly, that evidence is being called to support. [Emphasis  
added; para. 51.]  
[43]  
Thirdly, it defies the relevant rules of civil procedure. Pleadings not  
only serve to define the issues but give the opposing parties fair notice of the  
case to meet….  
…..  
[45]  
To the extent the Lax Kw’alaams are saying that, in Aboriginal and  
treaty rights litigation, rigidity of form should not triumph over substance, I  
agree with them. However, the necessary flexibility can be achieved within  
the ordinary rules of practice. Amendments to pleadings are regularly made  
in civil actions to conform with the evidence on terms that are fair to all  
parties. The trial judge adopted the proposition that “he who seeks a  
declaration must make up his mind and set out in his pleading what that  
declaration is”, but this otherwise sensible rule should not be applied rigidly in  
long and complex litigation such as we have here. A case may look very  
different to all parties after a month of evidence than it did at the outset. If  
necessary, amendment to the pleadings (claim or defence) should be sought  
at trial. There is ample jurisprudence governing both the procedure and  
outcome of such applications. However, at the end of the day, a defendant  
must be left in no doubt about precisely what is claimed. No relevant  
amendments were sought to the prayer for relief at trial in this case.  
[46]  
With these considerations in mind, and acknowledging that the public  
interest in the resolution of Aboriginal claims calls for a measure of flexibility  
not always present in ordinary commercial litigation, a court dealing with a  
s. 35(1) claim would appropriately proceed as follows:  
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Page 26  
1.  
First, at the characterization stage, identify the precise nature of the  
First Nation’s claim to an Aboriginal right based on the pleadings. If  
necessary, in light of the evidence, refine the characterization of the  
right claimed on terms that are fair to all parties.  
2.  
Second, determine whether the First Nation has proved, based on the  
evidence adduced at trial:  
(a)  
the existence of the pre-contract practice, tradition or custom  
advanced in the pleadings as supporting the claimed right; and  
(b)  
that this practice was integral to the distinctive pre-contact  
Aboriginal society.  
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….  
[67]  
…The economic implications of even a “lesser” commercial fishery  
could be significant, and the Crown is entitled to proper notice of what  
“declaration” it was supposed to argue about and to test the evidence  
directed to that issue.  
[underlining emphasis added in these 2018 trial reasons in Ahousaht; italic  
and double underlining emphases from prior cited reasons]  
[76] As already noted, the parties and the trial judge did not have the advantage of  
this decision at the time of Garson J.’s decision. The approach put forward by the  
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Page 27  
plaintiffs in Lax Kw’alaams before the Supreme Court of Canada on the hearing date  
of February 17, 2011, as reflected in para. 40 above, was rejected by that court in its  
decision of November 10, 2011.  
[77] Nonetheless that is the same argument that had been made previously in  
Ahousaht on the first appeal in December 2010 before the Court of Appeal. That  
argument was accepted by the Court of Appeal in their May 2011 decision, a few  
months before the Supreme Court of Canada released Lax Kw’alaams. However,  
notwithstanding the direction to the Court of Appeal by the Supreme Court of  
Canada to reconsider their decision in Ahousaht in light of Lax Kw’alaams, the Court  
of Appeal on the second appeal in July 2013 reconfirmed their original May 2011  
order.  
[78] In my view, the result of the reconsideration decision in Ahousaht is not  
entirely consistent with the decision in Lax Kw’alaams.  
[79] Of particular concern in the circumstances of the case presently before this  
court is the requirement to define precisely the claimed right in the pleadings, as  
amended by the end of trial, and the requirement to go through the analysis of  
continuity (Lax Kw’alaamsstep 3), and then to take into account all of the factors  
enumerated in the fourth step, prior to delineating the right. The parties and  
intervenors differ fundamentally on whether or to what extent any of those steps  
were completed in this case before the right was declared and affirmed and  
reconfirmed by the Court of Appeal.  
[80] The first issue is whether the claim was precisely defined in the pleadings.  
[81] The plaintiffs pled their claim before Garson J. on a spectrum, as cited in her  
trial reasons at para. 10:  
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,  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 28  
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.  
[82] The relevant relief sought was not set out in Garson J.’s reasons. The  
Amended Statement of Claim, drafted in 2005, claimed:  
(a)  
a declaration that [the plaintiffs] have existing aboriginal rights within  
the meaning of s. 35(1) of the Constitution Act, 1982 to harvest all species of  
Fisheries Resources in the Territories;  
(b)  
a declaration that [the plaintiffs] have existing aboriginal rights within  
the meaning of s. 35(1) of the Constitution Act, 1982 to sell on a commercial  
scale all species of Fisheries Resources that they harvest from the  
Territories.  
[83] The words “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” were added to a subsequent version of the Statement of Claim.  
[84] Canada sought extensive particulars, including a request that the species for  
consumption and for trade be set out. The plaintiffs provided a list of 70 or 80  
species of fish, shellfish, and aquatic plants, and stated that all of these were  
available to them for consumption and trade. The plaintiffs answered in broad  
general terms any questions to do with the factors that enter into an analysis of  
continuity.  
[85] A request was made for particulars in respect of specific infringements. The  
plaintiffs took the position that the pleadings were sufficient.  
[86] It appears that the general approach in the pleadings and particulars was to  
keep the claim as comprehensive and non-specific as possible, and indeed the  
plaintiffs were successful in obtaining a comprehensive and non-specific declaration,  
even broader than their pleadings.  
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[87] Madam Justice Garson did not choose any of the descriptions pleaded in (b)  
or (c) of the claim to a right to sell fish as set out by the plaintiffs. She concluded that  
the plaintiffs had established another description of the right, which she articulated  
as set out in her order at para. 1, and which she said she considered to come within  
the spectrum articulated in the pleadings: the plaintiffs have aboriginal rights to  
fish for any species of fish within their Fishing Territories and to sell that fish.  
[88] Thus the declaration of the right as set out in the trial court order is very  
general, and without any of the qualifiers contained in the pleadings themselves. The  
plaintiffs say it is limited only by Garson J.’s finding that the right is not on an  
industrial scale, a limitation which they say is nevertheless significant and adequate  
to delineate or define the right as required by Lax Kw’alaams.  
[89] On the reconsideration by the Court of Appeal, Canada argued that the  
claimed right had not been precisely articulated or defined as required by Lax  
Kw’alaams’ first step, and that the trial judge had not sufficiently addressed the issue  
of species specificity. This had also been an argument on the first appeal. The Court  
of Appeal did not accept that argument. In its reconsideration decision of 2013, the  
court reiterated its conclusion from the initial decision in 2011. The court said at  
paras. 15 - 20 that the trial judge had set out the pleaded claims and did not have to  
do more, given that the plaintiffs had pleaded a spectrum of rights.  
[90] It is certainly arguable that this approach does not accord with the Supreme  
Court of Canada’s Lax Kw’alaams’ step one, which requires a precisely claimed right  
to be pleaded by the end of the trial, and the court to identify the precise nature of  
the claim, based on the pleadings and the evidence at trial. In fact, the Supreme  
Court of Canada in Lax Kw’alaams at para. 61 and following was critical of the  
“spectrum” approach to pleadings, reiterating that the Crown was entitled, by the end  
of the trial, to proper notice of the declaration sought. The Crown must know  
“precisely what is claimed” (para. 45).  
[91] The next issue is the role of continuity (Lax Kw’alaams’ step 3) and its  
relationship to specific species.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[92] Species specificity in the right itself is at the heart of the arguments of the  
intervenors, and was advanced before the Court of Appeal by the BC Seafood  
Alliance, both on the original appeal and on the reconsideration. On that issue, the  
court said, in the reconsideration:  
[33]  
The appellant and certain of the intervenors submit that the judge  
failed to sufficiently address species specificity and that this resulted in her  
characterizing too broadly the right said to be prima facie infringed, namely,  
the respondents’ right to fish for any species of fish within their fishing  
territories and to sell such fish.  
[34]  
It seems to me that the issues the trial judge envisioned as being  
subject to negotiation or to be resolved by further proceedings largely  
encompass points 3 and 4 of the analysis mode suggested by Binnie J. in  
Lax Kw’alaams. These include the questions of continuity and the delineation  
of a modern right. Salient issues that remain to be addressed between these  
parties include those related to species and a more specific delineation of any  
modern right. In my view, the judge was not required to consider or articulate  
more than she did concerning individual marine species at this stage of the  
proceedings.  
[35]  
In my earlier reasons delivered in May 2011, I said this:  
[59] These objections by Canada and the intervenors on what I will  
term the species issue are comprehensible but, in my opinion, the  
short answer to such submissions is that at the presently incomplete  
stage of this litigation, to seek a greater degree of specificity is neither  
possible nor practicable. The evidence that was accepted by the trial  
judge supported the thesis that a variety of fish species were  
harvested and traded by the ancestors of the respondents. The record  
in the case is supportive of the proposition that ancestral trade  
occurred in certain species such as salmon but is silent as to many  
other species adverted to in the particulars. As I observed during the  
hearing of this appeal, this case as it presently stands has about it  
something of an interlocutory character. Having regard to the state of  
the evidentiary record, to presently demand more specificity seems an  
impossible task.  
* * *  
[61]  
As I see it, the “specific practice” in this case was not, as in  
Lax Kw’alaams, found to be tied to “one species of fish and one  
product”, namely eulachon oil, but encompassed a wide range of  
fisheries resources. I do not consider that it was an error for the judge  
in this case to find that the pre-contact practice was harvesting and  
trading in a broad range of marine food resources. That was the  
practice disclosed by the evidence. In my respectful opinion, it was  
open to the trial judge to conclude as she did that the trading in  
fisheries resources by the ancestors of NCN was integral to the  
culture of this society around the time of first contact.  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 31  
[62]  
The trial judge said this about her conclusions on trading  
practices:  
[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.  
[63]  
I do not consider that the judge was required to go further in  
delineating what she found to be the trading practices of the ancestral  
society. It is clear from the findings of the judge that she concluded  
that the present regulatory system, including quotas and entry fees,  
has had an inhibitory effect on the respondents’ former historic  
untrammeled right to harvest and trade in fisheries resources. She  
found that as a result of the present regime there was an as yet  
unjustified prima facie infringement of the respondents’ rights. The  
appellant and intervenors object to her use of yardsticks, such as  
former practice as testified to by witnesses from the respondent  
bands, or a general lack of full access to various fisheries to establish  
the infringement asserted in the pleadings. As the Sparrow case  
establishes, the threshold for making a finding of infringement is not  
high. It seems to me that the evidence in this case sufficed to satisfy  
this requirement.  
[64]  
The issue of species specificity will be very much front and  
centre when what I perceive as the core issues raised by this litigation  
come to be addressed at the accommodation and justification stage of  
the process. It is the reality that if a legislative or operational limitation  
or a form of agreement between the parties on the harvesting and  
selling of fisheries resources demonstrates justification or necessary  
accommodation, then there would not exist any unjustifiable  
infringement of the Aboriginal rights of NCN. Because of that, there is  
a significant practical interface between any alleged infringement of  
Aboriginal rights and justification for such infringement. Based on the  
evidence she accepted, the trial judge found a prima facie  
infringement of claimed rights of NCN at this stage of the process.  
Other salient issues in this lis between the parties still remain to be  
addressed and resolved, either by agreement or a continuation of  
litigation.  
* * *  
[66]  
I very much doubt that it would have been either practicable or  
helpful for the trial judge to seek to engage in a species related  
analysis when dealing with the issue of prima facie infringement. The  
evidence she accepted sufficed in my respectful opinion to underpin  
her findings at this stage of the process. That leaves at large and  
properly for future negotiation and, if necessary, further consideration  
and decision by a court, the unresolved issues of accommodation and  
justification in this particular case. At a future stage of the process,  
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]  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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[93] The Court of Appeal again dismissed the appeal, thus re-affirming Garson J.’s  
declaration of a right to fish for any species of fish and to sell that fish, despite  
stating at para. 37 that the claimed right had to be more precisely defined, as well as  
saying that Lax Kw’alaams’ steps three (continuity) and four (delineation of the  
modern right) were yet to be completed.  
[94] That is, not only the definition of the claim itself, but the analysis of continuity  
and the delineation of the right were not complete, yet the Court of Appeal confirmed  
the right as declared by Garson J. by dismissing the appeal. This dichotomy has  
caused some difficulty in moving forward with this case, and will be discussed further  
below.  
ADDITIONAL CHALLENGES  
[95] Before moving to a discussion of the parties’ positions, I will refer briefly to  
other problems that arose during the trial, or during submissions. These issues will  
all be discussed in more detail at relevant portions of these reasons.  
[96] As mentioned earlier, in December 2014, Canada made an offer (the LTO) to  
the plaintiffs with various facets to it, but setting out specific offers in respect of only  
two species: salmon and herring, leaving the rest of the species for future  
discussion. Canada relies on this offer in the justification analysis. The offer is  
unacceptable to the plaintiffs.  
[97] Notwithstanding the LTO and the extensive evidence called at this stage of  
the trial, Canada took the position during submissions that the justification analysis  
should be adjourned because the parties will only now, after receiving whatever  
clarification this court can offer on the scope of the right and the specific  
infringements they must deal with, be in a position to negotiate potentially workable  
fisheries.  
[98] Canada says it is not in a position to deal fully with justification for many  
species at this point. They say they require, and are entitled to, under Gladstone and  
Lax Kw’alaams, a precise delineation of the right, and an articulation of specific  
 
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 34  
infringements for each fishery. Without that, it is not possible to know where to start  
a justification exercise. As well, according to the Court of Appeal’s reasons in the  
reconsideration, they say they are entitled to a full analysis of steps 3 and 4 in Lax  
Kw’alaams.  
[99] The plaintiffs oppose Canada’s position, as they say continuity has already  
been dealt with by Garson J., the right has been properly articulated, and the  
analysis of Canada’s attempts at justification must stand or fall on the evidence  
presently before the court. I will return to this topic later in these reasons.  
[100] An additional problem, and one I have alluded to earlier, is that the parties  
disagree fundamentally on how the issue of justification should be approached. The  
plaintiffs set forth various proposals for a series of fisheries, and they specifically rely  
on the ones they submitted to Main Table in the negotiation process in 2014. They  
say, according to Garson J.s reasons, Canada should have to justify not accepting  
them. Canada does not agree with this approach, as they say they should have to  
justify specific infringements, not a failure to implement a series of still-evolving  
plans.  
[101] As well, it became clear during the evidence that many of the plaintiffs’  
proposals are works in progress, and that they recognize the need for ongoing  
discussions and cooperation with DFO. Nevertheless, they say this cannot be an  
excuse for Canada’s failure to justify implementing their plans.  
[102] Another problem has arisen during the years of Negotiations: the views and  
expectations of the plaintiffs have developed, partly as a result of various measures  
implemented in the salmon demonstration fishery (which started in 2012 and which  
will be described later) which were encouraged by DFO, but which are not contained  
in the LTO. Canada’s approach has caused great resentment and disappointment  
amongst the members of the plaintiffs who became involved in the fishery and took  
advantage of these measures, only to have them, in their view, removed or  
significantly reduced. This will be further dealt with in the section of these reasons  
describing the Negotiations.  
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[103] To say all of this leaves this court in a difficult position is to state the obvious.  
However, decisions must be made to move the parties forward, if it is only to the  
next stage of appeals.  
[104] I will now set out the positions of the parties in more detail, which will expose  
the differing approaches to this stage of the trial, before turning, at a later stage of  
these reasons, to the issues of infringement and justification for each species of fish.  
OVERVIEW OF CANADA’S POSITION  
[105] I will deal first with Canada’s position on what is expected of this court.  
[106] Canada says the process to declare the scope of the right is not final and  
must be completed by this court. Madam Justice Garson made that clear in her  
judgment when she said:  
[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 stages of the analysis, as part  
of the reconciliation process.  
[Emphasis added]  
[107] Madam Justice Garson then quoted from Cheslatta Carrier Nation v. British  
Columbia, 2000 BCCA 539, 80 B.C.L.R. (3d) 212, a case in which the plaintiffs  
sought a declaration of a right in the absence of an alleged infringement of any right.  
Madam Justice Newbury, in upholding the trial judge who had refused to issue the  
declaration, said at para. 18:  
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, 137 D.L.R. (4th) 289, at  
paras. 30-1. As Cory J. stated in R. v. Nikal, [1996] 1 S.C.R. 1013, in  
connection with treaty rights:  
 
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 36  
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 interaction. [Emphasis added by Newbury J.A. in  
Cheslatta]  
[108] The Court in R. v. Nikal, [1996] 1 S.C.R. 1013, then referred to R. v. Agawa  
(Ont. C.A.) (1988), 65 O.R. (2d) 505:  
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 passage was emphasized by Newbury J.A. in Cheslatta]  
[109] I note as an aside that the plaintiffs say the use of the words “exercise of the  
right” used in Nikal, as opposed to the “scope of the right”, is important, although  
neither Newbury J.A. nor Garson J. made that distinction.  
[110] Madam Justice Newbury went on to say:  
[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 added]  
[111] Madam Justice Garson specifically adopted the underlined words as  
applicable to the case before her. She said, at para. 488:  
[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.  
[112] Notwithstanding Garson J.’s recognition of the need to put off defining the  
right, she then made her findings as to the existence of the right, and this formed the  
basis of one of the declarations:  
[489] ….the plaintiffs have established aboriginal rights to fish for any  
species of fish within the environs of their territories and to sell that  
fish….Broadly speaking, the right is not an unlimited right to fish on an  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
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industrial scale, but it does encompass a right to sell fish in the commercial  
marketplace.  
[Emphasis added]  
[113] She then said she would consider the “important and appropriate limitations”  
on the scope of the right in the sections of her reasons that followed.  
[114] It is the contention of Canada and the intervenors that, despite Garson J.’s  
statement, no further limitations were addressed in the rest of her reasons. This  
appears to be the case, although as I discuss below, there are inferences regarding  
limitations to be drawn from her reasons.  
[115] Canada then refers to the 2013 reasons of the Court of Appeal, at para. 34,  
set out above, where the court said “a more specific delineation of any modern  
right”, as well as continuity, remained to be addressed. At para. 37, they said “there  
remains for consideration and decision the question of more precise definition of the  
rights claimed and possible justification. In the Court of Appeal’s original decision,  
repeated in the reconsideration, the court said the case as it stands “has about it  
something of an interlocutory character”.  
[116] Thus, Canada says Garson J. contemplated an ongoing process of  
delineation of the right, and this is obviously confirmed by the Court of Appeal’s  
reasons. The fact that the order purports to declare a right cannot be taken as  
making the declaration final. Specifically, Canada says the broad right declared by  
Garson J. must be clarified as to the scope of the right itself, not merely the exercise  
of the right, as the plaintiffs contend.  
[117] I will now turn to the rest of Canada’s argument, which follows from its  
position on what this court can and should accomplish.  
[118] Canada says identifying a principled basis on which to ground the parameters  
of the plaintiffs’ aboriginal commercial fishing right is a complex legal problem. This  
case involves many species, and the prima facie infringement, according to Garson  
J.’s declaration, results from the entire regulatory scheme which DFO uses to  
manage the fishery. Management grows more complicated each year.  
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[119] According to Canada at para. 59 of their written submissions, the broad  
issues before this court are:  
-
With respect to the completion of the third and fourth steps of the Lax  
Kw’alaams analysis, how are the plaintiffs’ Aboriginal rights to fish and  
sell fish to be further delineated?  
-
-
-
What are the infringements of the plaintiffs’ right in each fishery that  
Canada must justify?  
Are Canada’s infringements of the plaintiffs’ right in a particular fishery  
justified? and  
Did Canada breach a duty to consult and negotiate with the plaintiffs?  
[120] Notwithstanding their insistence that they need to know what specific  
infringements are alleged before a justification analysis can be undertaken, Canada  
takes the position that Lax Kw’alaams’ steps 3 and 4 and the identification of  
infringements are part of the justification analysis on which they bear the burden of  
proof. They say the plaintiffs bear the burden on the fourth issue.  
[121] As for the task facing this court, Canada says at para. 20:  
The BCCA’s reconsideration of Canada’s appeal, while not substantively  
changing the result, did clarify that “questions of continuity and the  
delineation of a modern right” remained outstanding. The right was upheld, in  
other words, insofar as the Trial Judge made findings as to its basic nature.  
Its full extent, however, was held by the BCCA to be as yet undetermined.  
The BCCA directed that at the continuation of the justification trial, the  
plaintiffs’ rights must be further delineated in accordance with the SCC’s  
direction in Lax Kw’alaams, and in particular the third and fourth steps of the  
Lax Kw’alaams analysis would need to be completed.  
[122] Canada points to a summary of the challenges enumerated by McLachlin J.  
(in dissent) in R. v. Marshall, [1999] 3 S.C.R. 456 (Marshall #1), at para. 112, in  
respect of an incompletely defined right, in that case a treaty right:  
To proceed from a right undefined in scope or modern counterpart to the  
question of justification would be to render treaty rights inchoate and the  
justification of limitations impossible. How can one meaningfully discuss  
accommodation or justification of a right unless one has some idea of the  
core of that right and its modern scope? How is the government, in the  
absence of such a definition, to know how far it may justifiably trench on the  
right in the collective interest of Canadians? How are courts to judge whether  
the government that attempts to do so has drawn the line at the right point?  
Referring to the right in the generalized abstraction risks both circumventing  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 39  
the parties’ common intention at the time the treaty was signed, and  
functioning illegitimately to create, in effect, an unintended right of broad and  
undefined scope.  
[123] In this case, the declared right “to fish and sell any species of fish” is broad  
and undefined. Thus, Canada says that in this stage of trial, the court must finish  
delineating the right pursuant to Lax Kw’alaams. Without that, it is not possible to  
focus a justification analysis.  
[124] With respect to further issues of delineation, Canada says there are two  
broad issues. The first is whether the plaintiffs’ fishing territory is nine statute miles  
or nine nautical miles.  
[125] The second issue is much more complex:  
Where on the spectrum of commerciality does the plaintiffs’ right fall?  
[126] Canada says Garson J. determined that the plaintiffs’ fishing right exists  
somewhere on a continuum between a small-scale sale of fish outside the  
commercial market to something less than an industrial-scale fishery. She then left  
the parties to “negotiate towards a quantification of the amount and means of  
exercise” of the right to fish and sell fish that will “recognize these principles”  
(para. 875). In setting out the principles, she had just said at para. 874:  
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.  
[127] Canada says the appropriate delineation of the right lies in a proper analysis  
of continuity. This issue, left outstanding by the Court of Appeal (but foreclosed by its  
order, say the plaintiffs), is that it allows for the logical evolution of both subject  
matter and method of exercise of the ancestral practice into a modern right, but does  
not justify the award of a quantitatively and qualitatively different right.  
[128] Canada’s position with respect to continuity and species specificity is not, with  
respect, entirely clear. However, as I understand its position, both from its oral  
submissions and written argument and from its response to a request for particulars  
(discussed below), Canada does not attempt to limit species in the continuity  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 40  
analysis, in the sense that the Court of Appeal “knocked geoduck off the list” (as  
counsel describe it) of “any species”. Rather, Canada attempts to use the notion of  
continuity to obtain a more defined characterization of the right.  
[129] Canada says those issues were left by Garson J. and the Court of Appeal for  
this court, and require an inquiry into Garson J.’s findings regarding the plaintiffs’  
pre-contact practices, and the evidence underlying those findings. In their arguments  
respecting various species, such as crab and prawn, Canada notes that there is no  
evidence at all of trade in those species. Therefore, the position Canada takes is that  
the less evidence there is of ancestral trade in a species, the easier it is to justify the  
present regulatory scheme (as well as allocations of fish under that scheme), in  
respect of that species in the modern fishery, applying the principles from Gladstone,  
Sparrow, and Lax Kw’alaams at step 4.  
[130] Canada refers to certain comments in Garson J.’s judgment in support of their  
position on the proper characterization of the right. She said the plaintiffs did not  
trade fish for the purpose of accumulating wealth, and that the amount of fish they  
caught was limited by their fishing methods. Fish was their primary food source,  
which would limit the amount available for trade. In the modern era, she referred to  
their inability to use their “mosquito fleet” (para. 651: “a fleet of small motorized  
boats”).  
[131] Madam Justice Garson also declared that the fishing territory extended only  
nine miles seaward. Taking these indicia, Canada says the plaintiffs’ right should be  
delineated as a “community-based artisanal fishery that harvests and sells fish to a  
low level of commercial activity”.  
[132] Canada says that once the right is precisely delineated, the court must rule on  
whether DFO’s actions since the decision constitute a justified infringement of the  
plaintiffs’ right in respect of each fishery.  
[133] Madam Justice Garson stated that the plaintiffs did not identify any specific  
infringements, and she gave no specific guidance on infringement herself (an  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 41  
approach questioned but accepted by the BCCA in the Tsilhqot’in decision, William  
v. British Columbia, 2012 BCCA 285, 33 B.C.L.R. (5th) 260, at para. 307). However,  
her findings appear to fall into two categories, characterized by Canada as follows:  
(a)  
(b)  
the plaintiffs were squeezed out of the regular commercial fishery by  
its competitive nature and subsequent escalating costs  
steps taken by DFO to restrict, manage, and monitor fishing capacity  
in order to achieve both conservation and economic objectives in the  
commercial fishery meant that the plaintiffs were no longer able to fish  
and sell fish by their preferred means.  
[134] Canada says problems have arisen over the course of the Negotiations  
because the plaintiffs’ view of their preferred-means fishery has changed from  
“community-based, localized fisheries involving wide community participation and  
using small, low cost boats” (a direct quote from the plaintiffs’ original submissions to  
Garson J., incorporated into her reasons at para. 769), to the use of fairly large  
commercial boats and gear, both of which work against wide community  
participation. As well, the plaintiffs’ 2014 fishing proposals are substantially more  
complex than those submitted at earlier stages of the Negotiations. Canada says the  
2014 plans raise conservation concerns, and restrict DFO’s ability to manage all the  
fisheries resource in a sustainable and integrated manner.  
[135] Canada says the plaintiffs’ current fishing proposals diverge starkly from their  
preferred means of fishing as found by Garson J., and the court should not accept  
the plaintiffs’ position that Canada must justify rejecting their proposals.  
Reconciliation cannot be achieved by simply accepting the fishing plans; rather it  
means taking the plaintiffs’ rights seriously and according them the appropriate  
priority within the integrated fisheries management regime, working collaboratively  
with the plaintiffs and recognizing other rights and interests as well.  
[136] Canada submits that the plaintiffs want DFO to alter its management of the  
established commercial and recreational fisheries, and to allow the plaintiffs to  
regulate themselves and manage their right-based fisheries. DFO’s role would be  
simply to provide an initial allocation. However, says Canada, the right as declared  
by Garson J. does not include a right to manage the fishery. DFO’s expertise as the  
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architect of the integrated management regime deserves deference. Canada says  
DFO’s integrated regime is complex and closely related to the biology and physical  
characteristics of the various species and ecosystems. It cannot be ignored.  
[137] Canada says DFO’s management regime is necessary to achieve valid  
legislative objections:  
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-
conserving biological and ecological diversity;  
achieving sustainable fisheries for the benefit of all Canadians now and  
in the future;  
-
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providing stable and certain fishing opportunities;  
showing fairness and transparency in allocating fishing opportunities  
among all fishers.  
[138] Canada says retaining and working within the present regime is justified.  
Minimal impairment does not mean no impairment, nor does it mean that just  
because other solutions might infringe less, the one chosen is not justified.  
Reasonableness is a necessary aspect of the inquiry into justification: see Nikal at  
1065:  
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 infringement  
should not, in itself, be the basis for automatically finding that there cannot be  
justification for infringement.  
[139] The plaintiffs in their proposals request that DFO change its existing  
management regime, which is based on years of science and management  
experience. Rather than accepting the plaintiffs’ request, DFO takes a justified  
precautionary approach. DFO must know the scale and nature of the right-based  
fishery in order to protect it. If they turned over management to the plaintiffs and the  
plaintiffs mismanaged the fishery, DFO would be unable to protect the right-based  
fishery for the whole community and all the plaintiffs.  
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[140] Canada says the main points of disagreement between the parties are the  
following, which encompasses virtually every issue that has come before the Main  
Table:  
-
-
-
-
-
priority;  
allocation;  
exclusivity;  
preferred means (vessel size and capacity);  
monitoring and catch reporting (whether it should be done an  
independent third party, whether electronic monitoring is required; who  
would pay for electronic monitoring);  
-
the impacts of the plaintiffs’ right-based fishery on the commercial and  
recreational fisheries;  
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-
voluntary licences relinquishment (mitigation); and  
the use of existing DFO programs and policies to provide the plaintiffs  
with increased access to the fisheries resource (PICFI, ATP).  
[141] PICFI (Pacific Integrated Commercial Fisheries Initiative) and ATP (Allocation  
Transfer Program) are special programs designed to increase aboriginal  
participation in the fishery and to encourage First Nations fisheries to become self-  
sustaining. ATP has been ongoing for some time. PICFI had just started at the time  
of Garson J.’s decision.  
[142] Michelle James explains in her report that there are two types of communal  
licences issued to aboriginal groups. One type applies to economic opportunity  
fisheries related to a specific project. Of relevance to the NCN are communal  
commercial (F) licences which operate in common with the regular commercial  
licences. There are no licence fees associated with these licences, but there are  
cost recovery agreements for some of them.  
[143] The communal licences granted to aboriginal groups are obtained through  
DFO’s “Mitigation Policy” -- that is, through voluntary relinquishment of licences from  
commercial fishers which are then purchased by DFO and transferred to First  
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Nations in the PICFI program. PICFI, developed in consultation with the NCN,  
requires First Nations to form aggregates to fish. Of the five plaintiffs, only Ahousaht  
and Tla-o-qui-aht have formed their own aggregates. The remaining three have  
joined other groups. The program now provides additional new funding which allows  
an aggregate to obtain licences of their choice. The Ahousaht aggregate has  
received almost $350,000, and the Tla-o-qui-aht aggregate $375,000.  
[144] Canada takes the position that access under PICFI and ATP is relevant to the  
access provided under the right, in particular because reconciliation is achieved  
through voluntary relinquishment of licences by commercial fishers. It is not  
necessary and is unhelpful to the principles of reconciliation to move to involuntary  
relinquishment of licences by the commercial sector.  
[145] The AABM chinook salmon fishery is of primary importance to the plaintiffs.  
AABM stands for Aggregate Abundance Based Management -- that is, ocean-based  
mixed stock chinook, as opposed to the ISBM (Individual Stock Based Management)  
chinook which spawn in local WCVI rivers.  
[146] The general approach in the LTO to the AABM chinook fishery is to offer a  
number of licences to the plaintiffs and allow the plaintiffs to decide whether to divide  
some or all of the licences up amongst many mosquito boats for use in the CDA, or  
use some or all of the licences on commercial-sized troll boats (using one vessel  
one per licence) throughout the whole WCVI.  
[147] For other species (groundfish, crab, prawn), Canada takes the position that  
the consultation process is not complete and should not be subjected to a  
justification analysis at this time; alternatively, Canada’s says its conduct is justified  
and the structured decision-making process now in place through the LTO is  
sufficient to accommodate the plaintiffs’ rights and to justify a continuation of the  
present management regime. In general, Canada relies on conservation concerns  
and economic and regional fairness, the factors mentioned in Sparrow and Lax  
Kw’alaams, to justify retaining its present system for these fisheries.  
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[148] For certain other fisheries, Canada takes the position that there are no  
ongoing infringements. For instance, the plaintiffs have not submitted plans for sea  
cucumbers, red sea urchin, oysters, or tuna. The gooseneck barnacle fishery is a  
collaborative effort of the plaintiffs and DFO, and, in Canada’s view, does not  
infringe the right. As mentioned earlier, the sardine and herring fisheries are  
presently closed.  
[149] Oysters were introduced into British Columbia in the 1800s. At the time of  
Garson J.’s decision, oysters were under the province’s control. Management of  
oysters is now under federal jurisdiction. The plaintiffs do not allege an infringement  
of their right to harvest and sell oysters.  
[150] Moving briefly through the Gladstone factors, Canada says the relevant duty  
to consult in this case arises within the justification process; the amount of  
consultation depends on circumstances, and requires good faith on both sides.  
[151] Canada draws a distinction between “fiduciary duty” in this context, and a true  
trust. Here, the fiduciary duty owed to a rights holder creates and informs a standard  
of conduct. The absence of clear delineation of the right and the uncertainty this has  
caused for the Negotiations provides important context for interpreting Canada’s  
approach towards its fiduciary duty.  
[152] Canada says priority requires a look at actions and outcome. The relevant  
determination is whether the right has truly been taken into account. There are no  
guarantees in fishing. However, in these circumstances for these plaintiffs, there  
have been years of Negotiations, very significant funding for those Negotiations and  
for staff, funds provided for capacity building and support, and many  
accommodations and flexible applications of the existing regime: reduced or waived  
licence fees, a salmon demonstration fishery with changed monitoring standards,  
extra access in all species for the plaintiffs through PICFI at the expense of other  
First Nations, and a special approach taken through the LTO.  
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[153] Overall, Canada says it has accorded appropriate priority to the plaintiffs’  
fishery and has remedied ongoing infringements, or is in the process of doing so  
through continued discussions.  
THE INTERVENORS  
[154] The intervenors are unhappy with Canada’s approach to the issue of  
continuity, as the PPFA and SFA contend that their species should be excluded from  
“any species” in the right itself, for reasons that relate to the conduct of their  
respective fisheries. I will explain their concerns in more detail below when I discuss  
those species.  
[155] Meanwhile I will turn to the intervenors’ positions on the task facing this court  
at the second stage of the trial.  
[156] The intervenors first question the dual tracks of this process -- litigation on  
one hand, and the Negotiations on the other. The latter, being characterized in the  
order and by the parties as negotiations, rather than simply consultations, go far  
beyond what the law requires.  
[157] Mr. Lowes for the intervenor BC Seafood Alliance emphasized the concerns  
their sectors have at being told that a series of Negotiations is going on between the  
plaintiffs and Canada in respect of fisheries in which other sectors have an interest,  
but in which they have no say. They acknowledge the duty to consult, but to leave  
two parties to negotiate something that clearly involves all other sectors is not  
appropriate. They point out that Ms. Farlinger, Regional Director General, asked the  
plaintiffs if their plans could be discussed with the other sectors but the plaintiffs  
refused.  
[158] The intervenors argue that once the claimed right in question is commercial,  
the involvement of others becomes part of the definition of the right itself. The  
conceptual limitations on the right occur as a result of the fourth step in Lax  
Kwalaams which imports the factors from the justification analysis in Sparrow.  
 
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These are not limitations on the exercise of the right; they are limitations on the right  
itself.  
[159] The intervenors submit that Garson J. purported to rely on Gladstone to make  
these broad general declarations and to send the parties away to negotiate, but  
Gladstone was, by the time the case reached the Supreme Court of Canada, a  
single-count regulatory prosecution with one specific fishery in issue. The  
intervenors are concerned that the delineation of a commercial right concerned with  
all species, allegedly infringed by an entire system, was left to these two parties to  
negotiate.  
[160] Each of the cases (Van der Peet at para. 21; Gladstone at para. 23; R. v.  
Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686) that have dealt with fishing  
rights have emphasized the importance of precision and specificity in characterizing  
the claimed right. The Supreme Court of Canada’s analysis in Van der Peet shows  
the importance of considering all of the evidence before refining the characterization  
of even the claimed right. Once that analysis is complete, the court can consider the  
elements that go into the proof of the right itself, once more examining all of the  
evidence.  
[161] It is the position of the intervenors that a commercial right cannot be declared  
until Lax Kw’alaamsfour steps are complete. Given the Court of Appeal’s reasons,  
that has not occurred here, despite the wording of the orders. Thus the right as  
declared cannot be final. The right cannot be crystalized until the end of the trial, and  
a declaration should not have been made mid-trial as was done here.  
[162] The intervenors submit that Garson J. recognized that she was not finished  
with the analysis, and at para. 488, she acknowledged the statement in Cheslatta:  
that is, that the analysis surrounding justified infringements is an important part of  
the process of defining the right itself. However, in the next paragraph, she found  
that the plaintiffs had established a “right to fish for any species of fish within the  
environs of their territories and to sell that fish” as a “now proven aboriginal right”  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 48  
and said that the limitations on the right would be considered in the next stages of  
the analysis: infringement and justification.  
[163] The intervenors say that Garson J. could not have found what the right was  
before going through the whole analysis to which she had just referred, and the  
Court of Appeal acknowledged that. The court recognized in its reconsideration  
decision that the modern right still had to be more specifically defined, having said at  
para. 31:  
Rights do not exist in a vacuum. As Newbury J.A. observed in Cheslatta  
Carrier Nation v. British Columbia, Aboriginal rights, if established, do not  
have an absolute quality. Questions of justification and infringement are, as  
she observed at para. 19, “an important part of the process of defining the  
right itself.”  
[164] At para. 37, the Court of Appeal said, “there remains for consideration and  
decision the question of more precise definition of the rights claimed and possible  
justification”.  
[165] The intervenors acknowledge, as they must, that Garson J.’s declarations and  
approach were upheld by the Court of Appeal twice. However, their main point is  
that Lax Kw’alaamsfour steps must be strictly followed. Madam Justice Garson did  
not have the advantage of that decision but the Court of Appeal did, in its  
reconsideration, and that court directed this court to complete steps three and four of  
Lax Kw’alaams.  
[166] The intervenors say that when Lax Kw’alaams is applied properly, a  
declaration of a defined right cannot be granted without a determination of justified  
infringements.  
[167] I will now turn to the intervenors’ submissions on the issue of species  
specificity.  
[168] Madam Justice Garson accepted the plaintiffs’ position that aboriginal fishing  
rights are not species-specific, and that continuity did not have to be proven species  
by species.  
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Page 49  
[169] However, the intervenors say it is clear from the reasons of the Court of  
Appeal’s second judgment that the court saw species specificity as relevant to both  
Lax Kw’alaamsstep 3 (determination respecting continuity) and step 4 (delineation  
of the right), steps which the Court of Appeal said were still to be done. The  
intervenors say the Court of Appeal could not have written reasons directing this  
court to complete certain steps and then made it impossible, by its order, for the  
court to comply with those directions. The fact that this court, coming upon this  
unfinished trial, is in an almost impossible position to follow those directions, is  
unfortunate, but this should not prevent a proper analysis as contemplated by Lax  
Kw’alaams.  
[170] The plaintiffs before Garson J. relied on the comment of Satanove J. in Lax  
Kw’alaams 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.  
[171] Madam Justice Satanove’s comment, which was obiter, was not accepted by  
the Court of Appeal in Lax Kw’alaams (para. 40), a decision rendered a month after  
Garson J.’s decision in this case.  
[172] The court instead accepted the argument from the intervenor BC Seafood  
Alliance in that case that the Supreme Court of Canada has “not categorically  
excluded species specificity in the definition of an aboriginal right, but has left it (as  
in the case of other factors, such as site-or purpose-specificity), a matter of  
relevance and context in particular cases.”  
[173] The Court of Appeal in Lax Kw’alaams at para. 37 approved of the  
submissions of the BC Seafood Alliance:  
Substantively, specificity is required to ensure that the scope of the exception  
to the principles of universality and equality is confined to the reason and  
justification for that exception: i.e. the prior presence of organized societies.  
From this flows the search for “aboriginality”, and aboriginal identity by  
focusing on the significant elements of aboriginal society and culture.  
Specificity is required: first, to distinguish between activities which are rooted  
in the traditions of a particular culture, and those which are common to  
Ahousaht Indian Band and Nation v. Canada (Attorney General)  
Page 50  
human society generally; and second, to distinguish between practices,  
customs and traditions which are culturally significant, and those which are  
not.  
As a matter of process the requirement of specificity enables aboriginal rights  
to be defined by regular courts following regular process. To define the  
claimed right in specific terms enables the court to focus on a particular lis. In  
short, specificity is essential for a court of law to fulfil its function, and not  
usurp that of treaty negotiations, legislation or government policy.  
[174] The court went on to say:  
Mr. Lowes suggests that the question in each case is whether the “practice,  
custom or tradition” can be accurately described without reference to a  
specific species -- where “to omit the reference to the species is to mis-  
describe the practice, custom or tradition that is integral to the aboriginal  
culture or way of life.”  
[175] After noting the position of the Lax Kw’alaams that the relevant “practice”  
should be “fishing”, the court said if such a right had been claimed, it would have  
been too general, and cited from Sappier at para. 24: “it is critical that the court  
identify a practice that helps to define the way of life or distinctiveness of the  
particular aboriginal community”.  
[176] The court went on to say, at para. 40:  
In summary, I agree with Mr. Lowes that the trial judge may have mis-spoken  
when she said at para. 489 that an Aboriginal right “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.” If by this she meant that as a  
matter of law, species can never be a relevant factor in the delineation or  
characterization of an Aboriginal right protected under s. 35, I would again  
note Gladstone, where the right was defined in terms of herring spawn on  
kelp. Again, it is a question of the specific practice in each case.  
[177] The BC Seafood Alliance, which has been active at both appeals, takes the  
position that their argument that species specificity is relevant to the characterization  
of the right itself was acknowledged as “comprehensible” by the Court of Appeal  
(see the Court of Appeal’s 2011 decision at para. 59, also adopted in the portion of  
the 2013 decision set out above), but was deferred to this stage of the trial. If this  
court refuses to consider their arguments, the BC Seafood Alliance is left without a  
forum in which to make them.  
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Page 51  
[178] In the first Court of Appeal decision in this case, the court said at para. 56 that  
the content of the rights in issue could not be precisely articulated, and the plaintiffs  
were entitled to plead their claim broadly. It became clear in the Supreme Court of  
Canada’s reasons in Lax Kw’alaams -- subsequent to the first Court of Appeal  
decision in this case -- that the Supreme Court of Canada insisted upon precision in  
the claim.  
[179] The Supreme Court of Canada, in Lax Kw’alaams at para. 57, commented  
that the situation (converting an ancestral practice to a general right to a commercial  
fishery) might be different if the defining feature of a culture was “to catch whatever  
fish they could and trade whatever fish they caught”: then the “species-specific”  
debate might not be confined to species that were not yet present in those waters.  
The plaintiffs rely on this comment. The intervenors say that while there was a  
finding that trade in fisheries resources was integral to the plaintiffs’ culture, there  
was no finding that everything that was caught was traded. As well, the issue of  
whether different species might move into those waters as the oceans warm is not  
the same issue as whether a species, though always present, like geoduck, was not  
viable as a commercial fishery without modern technology.  
[180] Madam Justice Garson noted that the plaintiffs did not specify which species  
they claimed a right to harvest (para. 367), and that Canada sought a finding that, if  
trade were found to be culturally integral, it occurred in respect of a limited number  
of species (para. 375). She said, at para. 383:  
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 seasonable 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.  
[181] There is no mention of trade in this paragraph. It was not suggested that the  
word “harvest” implies trade. Nevertheless, the right to fish and sell fish was  
declared to apply to “any species.  
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Page 52  
[182] The intervenors note that the Court of Appeal said at para. 34 of the  
reconsideration decision that continuity still had to be resolved by negotiation or  
further proceedings; thus Garson J. did not have to be more specific in respect of  
individual species at that stage of the proceedings.  
[183] The Court of Appeal also noted (in its 2011 reasons at para. 59, reproduced  
in the reconsideration reasons within para. 35) that while trade took place in a  
variety of species, and there was a record to support trade in some species such as  
salmon, the record was silent as to many species adverted to in the particulars.  
Thus, they said, issues of species specificity would be at the forefront in the next  
stage of the trial.  
[184] The BC Seafood Alliance says the modern fishery is all about species  
specificity. Continuity must be examined from the contemporary perspective as well  
as the aboriginal perspective, and that cannot be done without looking at species  
specificity.  
[185] They say it is necessary to look at the claimed contemporary right to see if its  
core elements are rooted in ancestral practice. To say the plaintiffs have a right to  
fish and sell all species of fish, and that the entire regulatory regime is a prima facie  
infringement on this right assists no one in coming to terms with what was  
envisioned in a practical sense. The intervenors say, at the very least, the court must  
apply the geoduck analysis used by the Court of Appeal to all species.  
[186] The intervenors say species specificity is important because the privileged  
position accorded to aboriginal rights holders does not go beyond matters that are  
significant to their culture. The claim must be specific to rationalize a departure from  
universal rights. The Constitution Act, 1982, s. 35, is a shield: it allows for an  
acquittal in regulatory prosecutions, or a constitutional exemption in a civil case such  
as this one. It is not a sword: that is, it is not an independent source of a claim to a  
right.  
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[187] The intervenors say whatever the right is found to be, it must be scaled back  
to include only species for which continuity can be demonstrated. The SFA adopts  
the submissions of the PPFA to the effect that there is an aspect of proportionality to  
this exercise when determining the extent of the commercial right. That is, there  
would be a heavy onus on the government in respect of species that were of  
defining importance to the aboriginal culture and practice, but not so much for  
species of less or no importance to the ancestral practice, such as, in the  
intervenors’ contention, sablefish and prawns.  
[188] The intervenors say Canada has improperly agreed to bear the burden of  
proof on the first two issues they listed, that is Lax Kw’alaams at steps three and  
four. These are issues for the plaintiffs to prove, according to Gladstone and Lax  
Kw’alaams. This unfortunate situation has arisen because of the broad declarations  
and the adoption by the Court of Appeal of those declarations by dismissing the  
appeal without qualifying them to include the steps remaining under Lax Kw’alaams.  
Thus the onus has been reversed: instead of the plaintiffs precisely characterizing  
their claim and the alleged infringements, Canada has been left to flail about and try  
to guess what the infringements are in each fishery, what it has done wrong, and  
what it should be doing to justify their actions.  
[189] As for reconciliation, the intervenors say this court cannot solve everyone’s  
problems or set up a fishery. All this court can do is apply the template already  
provided by the Supreme Court of Canada and determine if the plaintiffs have  
proven their case or not. The court should not decide on the substance of the  
Negotiations or choose between the plaintiffs’ plans and Canada’s, such as they are.  
This process has involved the plaintiffs simply picking a number for their share and  
demanding that Canada justify why they cannot have it. The intervenors say this is  
not how a right should be claimed, defined or delineated.  
[190] Mr. Lowes submits that this court need not accept the declarations as final or  
determinative because the final result of the action will be a constitutional exemption  
for the plaintiffs or a dismissal of their case. He says this is especially so in this case  
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Page 54  
where the original trial judge is gone and there has been a number of appeals,  
lengthy Negotiations, and significant changes in circumstances.  
[191] The SFA makes points specific to their fishery, as does the PPFA, each  
saying the plaintiffs have not and could never have proven an ancestral trade in  
either. The commercial sablefish fishery takes place far beyond the nine-mile limit  
near the Continental Shelf, and the commercial prawn fishery is a deep-water fishery  
requiring technology to haul the traps. The intervenors say the plaintiffs have not  
claimed that they traded any species in particular, and therefore should not be able  
to take advantage of a vague “any species” declaration to assert a right to these  
technologically advanced commercial fisheries.  
[192] As well, there are species that might one day come into the territory that could  
be caught by the modern equivalent of traditional means and might be included (as  
per the Supreme Court of Canada in Lax Kw’alaams at para. 57), but prawns and  
sablefish were always there and were not catchable at all or on a trading basis as  
part of an ancestral practice; it is only the development of a modern industrialized,  
technical fishery that has created a commercial fishery in those species. There was  
scant, if any, evidence before Garson J. that prawns or sablefish were caught at all,  
and absolutely no evidence that they were traded. This is not indicative of an integral  
cultural practice that could be translated into a modern commercial right.  
[193] The intervenors say the plaintiffs should have the burden of proving that trade  
in each species was part of their ancestral practice. The PPFA and the SFA each  
say there is no evidence of trade in their respective species, but they should not be  
put in the position of having to prove a negative. It is the plaintiffs’ burden to prove  
their claim.  
[194] As well, the intervenors point out the lack of specificity as to infringement,  
both in the pleadings and in the judgment of Garson J. The intervenors say it was  
not regulation that kept the plaintiffs out of the fishery. It was economics and  
logistics. DFO was forced to regulate to control the huge fishery which already  
existed and had forced the plaintiffs out. In other words, the fishery is simply so  
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Page 55  
industrialized now that there is no place for the plaintiffs. It has moved beyond them.  
According to the intervenors, there is no room for a viable commercial artisanal  
fishery, and the plaintiffs know that. This is indicated by the plaintiffs’ move to larger  
vessels during the years of the Negotiations and their wish to fish outside the CDA.  
OVERVIEW OF PLAINTIFFS’ POSITION  
[195] I will now set out the plaintiffs’ position on the relationship of the previous  
orders to the Court of Appeal’s reasons, and what can and should be done by this  
court at this stage of the trial.  
[196] In response to some of the points made by Canada and the intervenors  
relating to the task of this court, the plaintiffs acknowledge the difficulty created by  
the Court of Appeal’s reasons in this case in particular.  
[197] Notwithstanding the reasons, the plaintiffs say the declaration of the right is  
obviously final. Since Lax Kw’alaams assumes a four-step process before the right is  
delineated, those four steps must be taken to be completed.  
[198] The plaintiffs acknowledge the Court of Appeal’s reasons are at odds with  
their interpretation of the order. However, they say that this stage of the trial is only  
concerned with justification, according to Garson J.’s order at para. 7 as confirmed  
by the Court of Appeal. The plaintiffs say Garson J. delineated the right conclusively  
and made extensive and complete findings on continuity, despite the Court of  
Appeal’s statements that continuity still has to be dealt with. If the order is  
interpreted in light of the Court of Appeal’s reasons in such a way as to give Canada  
a chance to open up the delineation of the right again, and also require continuity to  
be proven in respect of specific species, the plaintiffs say they are severely  
prejudiced because they could not have appealed the order as it stood. They refer to  
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, at  
para. 75 and following, where the court discussed the concept of functus officio in  
the context of the necessity for finality of judgments, which provides a stable basis  
from which to appeal.  
 
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Page 56  
[199] The plaintiffs say the problem has been exacerbated because language  
relating to the process of articulating a right has been used carelessly throughout the  
cases. They say that in respect of Garson J.’s reasons in this case and  
Newbury J.A.’s reasons in Cheslatta, referred to above, the words “the exercise of  
the right” must be read into the discussions in all of the decisions dealing with the  
ongoing need to define or further limit or delineate the right. In other words, the right  
as declared is final. The only limitations that can be forthcoming are on the exercise  
of the right, the phrase used in Nikal and Agawa, and those limitations are part of the  
infringement/justification analysis, not part of the delineation of the right.  
[200] The plaintiffs say the order stands as it is; it was not limited in any way and if  
the Court of Appeal in its order in the reconsideration had purported to “unwind” the  
right declared by Garson J., the plaintiffs would have appealed such limitations.  
However, the order did not do that and as it stands, the plaintiffs could not appeal it.  
They fought for a broad declaration without species specificity and they received an  
even broader declaration on which they are entitled to rely. The parties must be  
bound by the orders and not the reasons. The reference in the Court of Appeal’s  
reasons to the necessity to complete Lax Kw’alaamssteps 3 and 4 cannot be  
reconciled with the terms of its order and must simply be disregarded. The Court of  
Appeal in the reconsideration said they were disposing of the appeal as they had  
done two years earlier. Thus they could not have intended the right itself to be  
reopened.  
[201] The plaintiffs argue strenuously that their declared right stands; it cannot be  
altered, either in scope or as to species. The plaintiffs say geoduck was excluded by  
the Court of Appeal on the basis of fishing method, not because they re-examined  
the historical availability of geoduck as a species. No further species can be knocked  
off the list.  
[202] They say Canada did not plead a redefinition of the right. Lax Kw’alaams  
made it clear that parties are bound by their prayers for relief. Canada cannot now  
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seek a rewording of the declaration. No further facts can be found with respect to the  
right.  
[203] The plaintiffs say that in any event, the Lax Kw’alaams steps are watertight  
compartments and are to be considered sequentially; the analysis does not go back  
and forth and get redone two or three times as the intervenors suggest. This court  
would have had to have heard all of the evidence to revisit every finding related to  
the four steps of Lax Kw’alaams. Despite not having the benefit of that decision of  
the Supreme Court of Canada, Garson J. made her analysis in accordance with that  
process, at least sufficiently that her order was confirmed by the Court of Appeal.  
The right has been declared; a prima facie infringement has been found, and it is  
based on the entire policy and regulatory scheme of the fishery.  
[204] In summary, the plaintiffs say this court should not delve further into  
delineation and clarification: they have an aboriginal right to fish and sell all species  
of fish into the commercial marketplace. They are prevented from doing so in  
accordance with their preferred means by the entire DFO management scheme,  
which is unreasonable and creates undue hardship for them. Madam Justice Garson  
made all the necessary findings and reached final conclusions on all the four steps  
of delineating a right as required by Lax Kw’alaams.  
[205] According to the order of Garson J., confirmed by the Court of Appeal, the  
only issue before this court and upon which evidence can be adduced is justification,  
and the onus is on Canada to justify the purported application of their entire fisheries  
management scheme to the plaintiffs’ right, which is appropriately accommodated, at  
least for the present, in their fishing plans.  
[206] I will now turn to the plaintiffs’ submissions on justification.  
[207] The plaintiffs emphasize that this case is about justification, and only  
justification. They say that at the heart of this case is their right to participate  
meaningfully in the significant commercial fisheries that take place in the waters at  
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their doorstep, and their ability to exercise their aboriginal right to fish all species of  
fish and sell them commercially.  
[208] The plaintiffs take the declarations they obtained after many years of hard-  
fought litigation as they stand and without the potential for further qualification: they  
have an aboriginal right to fish and sell any species of fish into the commercial  
marketplace (but not at an industrial level); and that right is infringed by the entire  
legislative and policy regime of DFO’s fisheries management. The only issue with  
which this court should concern itself is whether and to what extent Canada can  
justify that infringement.  
[209] To be able to justify the infringement, Canada must show:  
(1)  
(2)  
(3)  
that its infringing actions or conduct were done in pursuit of a valid  
legislative objective;  
that its actions are in keeping with the fiduciary duty Canada owes the  
plaintiffs;  
that it has recognized and acted in accordance with the priority of the  
right;  
(4)  
(5)  
that the right has been minimally impaired; and  
that meaningful consultations in a good faith effort to accommodate the  
right have taken place.  
[210] The plaintiffs focus on priority and minimal impairment, which they say are  
demonstrated in a practical fashion by Canada’s failure to provide adequate  
allocations and means of fishing, and in its rejection of the plaintiffs’ fishing  
proposals. They say Canada’s whole approach has always been and still is  
designed to avoid disruption to existing users of the fishery. With the declaration of  
the plaintiffs’ right, that approach is no longer constitutional.  
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[211] The plaintiffs say Garson J. concluded that they have been unable to maintain  
the type of fishery they once did -- a community-based fishery that was smaller in  
scale than the regular commercial fisheries, and was characterized by wide  
participation using vessels of varying sizes, including commercial trollers, none of  
which compare to the large vessels now found in many commercial fisheries. They  
say Garson J. dealt with continuity, both quantitatively (the quantities of fish caught  
and traded were “substantial”) and qualitatively (the fishery is “not industrial”).  
[212] The plaintiffs argue that all of the allocations have been restricted by the  
application of three policies: the Coastwide Framework, which sets notional  
allocations for all First Nations on the west coast; the Salmon Allocation Policy,  
which accords priority to the recreational fishery for chinook and coho; and the  
“Mitigation Policy” which requires any licences provided to the plaintiffs through  
PICFI or ATP to be obtained through retirement or buy-out from an existing source in  
the fishery. They say all of these policies give priority to other interests in the fishery  
ahead of the plaintiffs.  
[213] The Coastwide Framework in particular was the subject of a claim of privilege  
by Canada. The plaintiffs take the position that, having claimed privilege over it,  
Canada cannot use it as justification for any decision. The plaintiffs say there is no  
evidence from the Minister or her office as to how she applied that policy or indeed  
any policy. The only witnesses called were from the regional and local offices of  
DFO. The plaintiffs submit such evidence from the Minister, who is the decision  
maker, is required by Gladstone. In that case, lack of an evidentiary record on how  
or why selection criteria were applied necessitated returning the issue of justification  
to the trial court.  
[214] The plaintiffs say the only evidence before the court shows that the principles  
of priority and minimal impairment were not factored into the allocation process or  
the decisions made since Garson J.’s decision. In fact, there is no evidence that  
DFO managers properly understood the concepts of priority or that they  
appropriately applied them.  
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[215] The plaintiffs also resist the use of PICFI access to satisfy and accommodate  
their right. They say the use of mitigated licences obtained when other fishers are  
willing to sell them is not respectful of their priority. As well, only two of the plaintiffs  
control their PICFI aggregates. The remaining three do not.  
[216] The plaintiffs say DFO has never explained what a total package for a multi-  
species right-based fishery would look like from their point of view.  
[217] The plaintiffs, in their submissions, describe their past commercial fishery as  
“flourishing” and “vibrant”. Their expectation was that the declaration of the right  
would “reinvigorate their coastal communities.” Despite six years of negotiation, all  
they have is the LTO, which provides extremely limited opportunities which “fall well  
short of providing a reasonable, and secure, opportunity for the Plaintiffs to allow for  
wide community participation”.  
[218] The plaintiffs say Canada’s LTO has provided them with very limited licence-  
based allocations, forcing them to choose between using the few licences offered to  
them to be split up in a multi-small-boat fishery, or to be used one licence per boat  
for commercial trollers. This means that the use of commercial trollers is far less  
than was allowed in the salmon demonstration fisheries, which they showed they  
could run well and responsibly.  
[219] The plaintiffs point out that the LTO is all Canada has put before the court as  
an attempt to accommodate the exercise of the right. It will not adjust its policies,  
except to allow splitting the allocation associated with one licence to be harvested by  
multiple vessels. Other than that, there is rigid adherence to the scheme that  
Garson J. found infringed the right.  
[220] The plaintiffs acknowledge that they do not have exclusive access to the  
fisheries, and not all members will be able to participate to the full extent they would  
like, but they say Canada’s offer is not a reasonable accommodation of the exercise  
of their right.  
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[221] The plaintiffs say that whereas other economic opportunity fisheries like those  
run by the Somass and Musqueam give their members hundreds of fish per person  
per year, the allocations to the plaintiffs under their right-based fishery provide only a  
few fish, sometimes as little as two, per member.  
[222] In summary, the plaintiffs say neither priority of their right nor minimal  
impairment of the right has been recognized.  
[223] Turning to the issue of consultation, Garson J. directed that the plaintiffs put  
forward proposals for Canada’s consideration, and gave the parties two years to  
consult and negotiate as to how the right could be accommodated and exercised  
within Canada’s management regime. The plaintiffs note that while Canada would  
have to consult in any event, Garson J. made it the subject of a specific declaration.  
[224] However, according to the plaintiffs, this process was not successful because  
Canada was operating under a very limited mandate from the minister which  
prevented true accommodation or reconciliation. The engagement was not  
meaningful. Thus the plaintiffs say Canada has not consulted or negotiated with  
them pursuant to the order. Nor has Canada put forward a position; they simply  
concentrated on trying to get the declaration overturned on appeal.  
[225] Madam Justice Garson suggested in her judgment that the plaintiffs should  
present plans to Canada, and if there was no agreement, Canada would have to  
justify not accepting the plan. Thus, the plaintiffs say that, faced with Canada’s lack  
of collaborative engagement, they developed a collection of comprehensive fish  
plans in 2014. Canada has an obligation to consider their plans as part of the  
justification process but has not done so. There has been no meaningful discussion  
or consultation on the plans. It is the plaintiffs’ position that these plans  
accommodate their right, at least for the present, and are also reconcilable with  
Canada’s legislative objectives and societal interest. They provide for “a community  
fishery in which allocation and fishing opportunities are shared within and amongst  
the plaintiff communities and spread over a variety of small commercial type trollers  
and ‘mosquito’ boats”.  
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[226] The plaintiffs say they are entitled to a constitutional exemption from the  
entire fisheries regime because Canada has failed to justify it. In the alternative,  
these plans should be implemented, with ongoing supervisory jurisdiction being  
retained by the court.