Supreme Court Decisions

January 2014
SCC rejects Canada's appeal to the 2009 BC Court Of Appeal decision in favour of Nuu-Chah-Nulth commercial fisheries by custom and tradition
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300 (CanLII)
Date:2013-07-02
Docket: CA037704
URL:http://canlii.ca/t/fzgp9
Citation:Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300 (CanLII), <http://canlii.ca/t/fzgp9> retrieved on 2014-02-02
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COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Ahousaht Indian Band and Nation v. Canada (Attorney General),
2013 BCCA 300
Date: 20130702
Docket: CA037704
Between:
The Ahousaht Indian Band and the Ahousaht Nation, represented by
Shawn Atleo on his own behalf and on behalf of the members of
the Ahousaht Indian Band and the Ahousaht Nation
The Ehattesaht Indian Band and the Ehattesaht Nation, represented by
Dawn Smith on her own behalf and on behalf of the members of
the Ehattesaht Indian Band and the Ehattesaht Nation
The Hesquiaht Indian Band and the Hesquiaht Nation, represented by
Simon Lucas on his own behalf and on behalf of the members of
the Hesquiaht Indian Band and the Hesquiaht Nation
The Mowachaht/Muchalaht Indian Band and the Mowachaht/Muchalaht Nation, represented by Lillian Howard on her own behalf and on behalf of the
members of the Mowachaht/Muchalaht Indian Band and the
Mowachaht/Muchalaht Nation
The Tla-o-qui-aht Indian Band and the Tla-o-qui-aht Nation, represented by
Benedict Williams on his own behalf and on behalf of the members
of the Tla-o-qui-aht Indian Band and the Tla-o-qui-aht Nation
Respondents
(Plaintiffs)
And
The Attorney General of Canada
Appellant
(Defendant)
And
Her Majesty the Queen in right of the Province of British Columbia
Intervenor
And
B.C. Wildlife Federation, B.C. Seafood Alliance,
and the Underwater Harvesters Research Society
Intervenors
And
Saugeen First Nation and Chippewas of Nawash Unceded First Nation
Intervenors
Before:
The Honourable Mr. Justice Hall
The Honourable Mr. Justice Chiasson
The Honourable Madam Justice Neilson
On reconsideration of appeal from: Supreme Court of British Columbia,
November 3, 2009 (Ahousaht Indian Band and Nation v. Canada (Attorney General),
2009 BCSC 1494 (CanLII), 2009 BCSC 1494, Vancouver Docket S033335)
Counsel for the Appellant:
C.J. Tobias, Q.C., B.C. Marleau and S. Telles-Langdon
Counsel for the Respondents:
J.R. Rich, F.M. Kirchner and
L.C. Glowacki
Counsel for the Intervenor,
Her Majesty the Queen in right of
British Columbia
J.J.L. Hunter, Q.C. and J.L. Owen
Counsel for the Intervenors,
B.C. Wildlife Federation and
B.C. Seafood Alliance
J.K. Lowes
Counsel for the Intervenors,
Saugeen First Nation and Chippewas of Nawash Unceded First Nation
H.W.R. Townshend and S. Luk
Place and Date of Hearing:
Vancouver, British Columbia
February 13, 14 and 15, 2013
Place and Date of Judgment:
Vancouver, British Columbia
July 2, 2013
Written Reasons by:
The Honourable Mr. Justice Hall
Concurred in by:
The Honourable Madam Justice Neilson
Dissenting Reasons by:
The Honourable Mr. Justice Chiasson (Page 20, Para. 40)


Reasons for Judgment of the Honourable Mr. Justice Hall:
[1] This is an appeal from the decision of Garson J. (as she then was) pronounced November 3, 2009. The reasons are indexed as2009 BCSC 1494 (CanLII), 2009 BCSC 1494. An earlier appeal to this Court was in part dismissed and in part allowed on May 18, 2011 – see 2011 BCCA 237 (CanLII), 2011 BCCA 237. An application for leave to appeal from this decision to the Supreme Court of Canada was made by the Attorney General of Canada. On March 29, 2012, the Supreme Court of Canada directed that the case would be remanded to this Court to be reconsidered in accordance with the decision of the Supreme Court in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 (CanLII), 2011 SCC 56, [2011] 3 S.C.R. 535. Pursuant to this direction, a rehearing occurred in February 2013.
[2] As stated by this Court in United States of America v. Gillingham, 2004 BCCA 226 (CanLII), 2004 BCCA 226, 239 D.L.R. (4th) 320 at para. 9, a hearing on remand is to be treated as a fresh appeal from the order of the trial judge:
[9] In Metzner v. Metzner 2000 BCCA 474 (CanLII), (2000), 190 D.L.R. (4th) 366, 80 B.C.L.R. (3d) 133, 2000 BCCA 474, paras. 21-26, this court held that on a remand from the Supreme Court of Canada we had no jurisdiction to sit on an appeal of our previous decision. We treated the hearing on remand as a fresh appeal from the order made in the court below. I therefore regard this appeal as if it were an initial appeal from the committal order made on 29 December 1998, the correctness of which is to be decided applying the law as now stated by the Supreme Court of Canada ..., as well as any other considerations that may affect the order’s validity.
[3] While the Court can inform itself from its earlier reasons, we must reassess anew the appeal from the trial decision in light of the decision of the Supreme Court in Lax Kw’alaams. The appellant, supported by the intervenors, Her Majesty the Queen in right of British Columbia and the B.C. Wildlife Federation and the B.C. Seafood Alliance, allege the trial judge erred as follows:
1) failing to identify the precise nature of the claim based on the pleadings;
2) relying on pre-contact practices that were not pled and, in any event, could not support the right claimed;
3) misinterpreting the requirements of integrality and continuity; and
4) granting a declaration of an Aboriginal right to sell fish without adequately delineating the scope of the right.
[4] Ground 4 encompasses arguments advanced by the latter intervenors concerning species specificity.
[5] It is submitted that the judge erred in the framework of her analysis by failing at the outset to identify the precise nature of the right claimed based on the pleadings. In our earlier reasons, we said this:
[52] In support of its argument that the trial judge erred in failing to characterize the claimed Aboriginal rights at the outset of her reasons, Canada relies upon cases such as R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, where it was said that the first step a court should take in a case involving claimed Aboriginal rights is to properly characterize the claim. The Court said at para. 53 of that case:
To characterize an applicant’s claim correctly, a court should consider such factors as the nature of the action which the applicant is claiming was done pursuant to an Aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right. ...
[53] I note that the judge did refer at para. 10 of her reasons to what it was the respondents sought by way of claimed relief:
[10] The plaintiffs claim that prior to and at contact, the Nuu‑chah‑nulth were a fishing people whose way of life was characterized by trade, including trade in fish. They submit that these pre-contact practices translate into modern Aboriginal rights, which they plead as follows:
a. To harvest all species of fisheries resources from within their territories, or portions thereof, and, in the alternative, one or more of those species;
b. To harvest those fisheries resources for any purposes including for food purposes, social purposes, ceremonial purposes, trade purposes, purposes of exchange for money or other goods, commercial purposes, purposes of sustaining the plaintiff communities, or one or more of those purposes; and
c. To sell, trade or exchange those fisheries resources:
i. on a commercial scale; or
ii. in the alternative, to sustain their communities; or
iii. in the further alternative, for money or other goods.
[54] I conclude from her reference to this at an early stage of her reasons that she was fully cognizant of what was at issue in this litigation. After characterizing the lis, she then went on to consider the evidence with a view to assessing whether it sufficiently established the ancestral practices alleged to be integral to the culture of the ancestors of the NCN [Nuu‑chah‑nulth] which were said to underpin the modern right claimed by the NCN. The majority in R. v. Marshall; R. v. Bernard, 2005 SCC 43 (CanLII), 2005 SCC 43, [2005] 2 S.C.R. 220, stressed the importance of the pre-contact practice in determining whether a s. 35(1) rights claim will give rise to a declaration of an Aboriginal right. At para. 48, McLachlin C.J. said:
The Court’s task in evaluating a claim for an aboriginal right is to examine the pre-sovereignty aboriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right.
In that case the relevant time was sovereignty, in the present case it is contact.
[55] It seems to me that the complaint of the appellant and intervenors about the methodology of the trial judge is not well founded. She demonstrated at the outset of her reasons that she was mindful of the pleaded claims of the respondents. She then properly went on to assess the evidence and make findings of fact with a view to deciding if the evidence tendered supported the ancestral practice that translated into the modern right claimed. In short, it seems to me that the process and procedure adopted by the trial judge was a fit one to adopt in aid of deciding the issues raised before her in the action. In a criminal case there might exist a greater need to characterize claimed rights at the outset of any analysis because of an absence of pleadings but it must be remembered this was a civil case in which pleadings and particulars existed. Here, the respondents pleaded a broad spectrum of fishing rights in terms derived from earlier authorities. Their statement of claim set out each of the constituent factors established in Van der Peet. The respondents further defined their claim by providing particulars at the request of the appellant. The appellant’s statement of defence effectively conceded that the respondents had historically used fisheries resources for FSC [food, social and ceremonial] purposes, but denied the existence of any broader right. The liswas thus clearly joined at the commercial end of the spectrum of potential rights, represented by the broadly framed prayer for declaratory relief.
[6] Our initial decision was made in May 2011. At the time, we had before us, and adverted to, the decision of this Court in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2009 BCCA 593 (CanLII), 2009 BCCA 593, 314 D.L.R. (4th) 385 – see paras. 60-66 of our May 2011 reasons. Reasons for judgment in the case of Lax Kw’alaams were delivered by the Supreme Court of Canada some six months later in November 2011. The appeal from the judgment of this Court was dismissed.
[7] In Lax Kw’alaams, the trial judge hearing the case dismissed a broadly claimed right to a commercial fishery advanced by the Lax Kw’alaams Indian Band. As noted at para. 56 of 2011 SCC 56 (CanLII), 2011 SCC 56, the trial judge made a clear finding that while the ancestors of the Lax Kw’alaams fished a great number of species of fish, they “did not trade in any significant way in species of fish or fish products other than eulachon”.
[8] However, Garson J. came to a quite different conclusion from the trial judge in Lax Kw’alaams in her reasons for judgment:
[281] In summary, I have concluded from the evidence the following:
1. the Nuu-chah-nulth had longstanding trade networks both in a north/south direction along the coast and overland via the Tahsis and other trade routes;
2. trade relations existed with “strangers” who came to pay tribute to powerful chiefs but in doing so received reciprocal gifts in return;
3. marriages were arranged to facilitate trade with extended kin, kin having a broad definition;
4. dentalia [shells] were found in exotic places (that is, far from the place of origin) by archaeologists, indicating their use as a trade item;
5. iron was noted by the earliest of the explorers to be traded up and down the coast, indicating a strong pre-contact trade network;
6. the Nuu-chah-nulth were not equally endowed with the same resources and thus the exchange of foodstuffs was necessary;
7. the systems of payment of tribute, gift giving, reciprocal exchange and trade overlapped with each other and existed within a polite form of respect for powerful chiefs;
8. the Nuu-chah-nulth did not trade for the purposes of accumulating wealth (I heard no such evidence);
9. the Nuu-chah-nulth had the ability to dry, preserve, and trade vast quantities of fish and marine products. (For a more detailed discussion, see the section above titled “Dependence on Fish”); and
10. the frequency and amount of trade, including trade in fish and marine products, suggest that such trade was a practice integral to Nuu-chah-nulth society.
[282] I conclude that at contact, the Nuu-chah-nulth engaged in trade of fisheries resources. I conclude that that trade included the regular exchange of fisheries resources in significant quantities to other tribes or groups, including groups with kinship connections. I do not exclude from this definition reciprocal gift giving or barter.
[9] Our task on this rehearing is to decide whether the decision of the trial judge is sustainable having regard to the decision of the Supreme Court of Canada in Lax Kw’alaams, which decision, as I noted, was pronounced subsequent to the judgment of this Court in May 2011. The appellant submits that, having regard to the Lax Kw’alaams reasons for judgment of the Supreme Court of Canada, the methodology of analysis of a rights claim should be as follows:
1) at the characterization stage, identify the precise nature of the claim based on the pleadings;
2) determine whether the claimant has proved, based on the evidence:
a) the existence of the pre-contact 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) determine whether the claimed modern right has a reasonable degree of continuity with the“integral” pre-contact practice; and
4) if an aboriginal right to trade commercially is found to exist, the court, when delineating such a right, should have regard to the objectives in the interest of all Canadians and aimed at reconciliation.
[10] In my view, this submission of the appellant accurately summarizes the approach enunciated by the Supreme Court in the Lax Kw’alaamscase.
[11] The appellant and intervenors (other than the intervenors Saugeen First Nation and Chippewas of Nawash Unceded First Nation) submit that the analysis of the trial judge was deficient having regard to the methodology enunciated in Lax Kw’alaams. The respondents submit the analysis of the judge is consistent with the methodology set forth in that case.
[12] As regards the requirement to identify the nature of the Aboriginal right claimed based on the pleadings, I advert to the passage from para. 10 of the trial decision set forth in these reasons at para. 5 above. Garson J. also stated at an early stage of her reasons (para. 34) that, “The first step is to characterize the right claimed.” She noted at para. 35 that such characterization is important because “whether or not the evidence will support the claim will depend in large measure on what that evidence is being called to support”. The judge also observed at para. 51 of her reasons that in a civil proceeding (as opposed to a regulatory prosecution), “it is necessarily the pleadings that will govern the nature of the plaintiffs’ claim”.
[13] As I see it, what the appellants take issue with is the methodology posited by Garson J. at para. 54 of her reasons:
[54] The Supreme Court in Van der Peet set out an analytical framework for considering whether a claimant has proved the existence of an aboriginal right. I propose to modify the analysis slightly to reflect the nature of the present action, and will approach it in the following way. First, I will review the evidence and make findings of fact with respect to the existence and nature of ancestral Nuu-chah-nulth fishing and trading practices. Next I will determine whether any such practices were integral to the distinctive culture of pre-contact Nuu-chah-nulth society. Included here will be discussion of the geographical ambit of those practices and whether they were specific to particular marine species. I will also here address whether the plaintiffs are the proper claimant groups. I will then consider whether reasonable continuity exists between the plaintiffs’ pre-contact and contemporary practices. Finally, I will translate the ancestral practices into modern rights or, in other words, characterize the aboriginal rights.
[14] Was Garson J., when she said this, embarking upon what Binnie J. at para. 40 of Lax Kw’alaams criticized as“a ‘commission of inquiry’ model in which a commissioner embarks on a voyage of discovery armed only with very general terms of reference”? When he said this, he was responding to what he characterized as the heart of the Lax Kw’alaams’argument 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” (emphasis of Lax Kw’alaams). At para. 41 of his reasons, he trenchantly observed that “[t]he 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.” After some further discussion of proper analytical methodology in a rights case, he set out at para. 46 of the reasons the approach articulated in the argument of the appellant.
[15] There would be considerable force in the submission of the appellant that the trial judge erred in her approach to the analysis in the present case if all she had said about the method of analysis was her comments in para. 54 of her reasons. However, this would be, in my respectful opinion, to take an unduly restrictive view of what she said about how she proposed to approach and decide the case. As well, the fact that the respondents pleaded a spectrum of rights made it most difficult for the trial judge to identify a single right as the focus at the outset of her analysis. As I have set forth in passages quoted above, at paras. 10, 24 and 35 of her reasons she expressly adverted to the rights claimed (pleaded) by the claimant respondents and the necessity to “characterize the right claimed” (para. 34). Also in para. 34, she made reference to R. v. Van der Peet,1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, a leading case in this area.
[16] Justice Binnie, at para. 42 of Lax Kw’alaams, referred to what was said by Lamer C.J. in Van der Peet:
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 firstcorrectly 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 [of Binnie J.]; para. 51.]
[17] I would note that the underlined passage in this enunciation by Lamer C.J. was expressly set out by Garson J. at para. 35 of her reasons.
[18] In my respectful opinion, Garson J. did exactly what was declared requisite by Binnie J. in Lax Kw’alaamsinsofar as identifying what right or rights were being claimed by the respondents. In my earlier reasons delivered in May of 2011, I stated at para. 54 that the trial judge was “fully cognizant of what was at issue in this litigation”. I would reiterate that comment here.
[19] I consider the judge made plain in the opening paragraphs of her lengthy reasons that she was alive to the necessity to characterize the rights claimed and she did set out the pleaded claims. I do not know what more she could have done to demonstrate that she appreciated the requirements set forth by the Supreme Court of Canada in Van der Peetand reaffirmed in Lax Kw’alaams.
[20] Before she said, in para. 54 of her reasons, how she intended to deal with the various relevant issues in the litigation, the trial judge had demonstrated she was fully aware of what rights were being claimed and what was encompassed by the pleadings. In my view, in light of the statements contained in the early portion of the reasons of the trial judge, it cannot be successfully argued that she was in anywise embarking on a “commission of inquiry” approach to deciding the case before her. Accordingly, I would not accede to the submission that it can be demonstrated that the analytical approach adopted by Garson J. on this issue was incorrect in light of the reasons of the Supreme Court in Lax Kw’alaams.
[21] However, that is not the end of the matter because it was also submitted by the appellant and certain of the intervenors that her analysis was flawed concerning integrality, a reasonable degree of continuity between the historic and modern practices, and the delineation of the modern right.
[22] The appellant and the intervenor, Her Majesty the Queen in right of the Province of British Columbia, submit the trial judge erred in applying an unduly low standard concerning trade in fish being integral to the Aboriginal society. It is suggested the judge may have placed inappropriate reliance on certain passages in R. v. Sappier; R. v. Gray,2006 SCC 54 (CanLII), 2006 SCC 54, [2006] 2 S.C.R. 686, passages it is submitted have been modified by the Supreme Court of Canada in more recent authority. The relevant passages from Sappier are the following:
[39] McLachlin C.J. explained in Mitchell[Mitchell v. M.N.R., 2001 SCC 33 (CanLII), 2001 SCC 33, [2001] 1 S.C.R. 911] that in order to satisfy the Van der Peet test, the practice, custom or tradition must have been integral to the distinctive culture of the aboriginal peoples, in the sense that
it distinguished or characterized their traditional culture and lay at the core of the peoples’ identity. It must be a“defining feature” of the aboriginal society, such that the culture would be“fundamentally altered” without it. It must be a feature of “central significance” to the peoples’ culture, one that “truly made the society what it was” (Van der Peet, supra, at paras. 54-59 . . .). [Emphasis deleted; para. 12.]
[40] As I have already explained, the purpose of this exercise is to understand the way of life of the particular aboriginal society, pre-contact, and to determine how the claimed right relates to it. This is achieved by founding the claim on a pre-contact practice, and determining whether that practice was integral to the distinctive culture of the aboriginal people in question, pre-contact. Section 35 seeks to protect integral elements of the way of life of these aboriginal societies, including their traditional means of survival. Although this was affirmed in Sparrow,Adams and Côté, the courts below queried whether a practice undertaken strictly for survival purposes really went to the core of a people’s identity. Although intended as a helpful description of the Van der Peet test, the reference in Mitchell to a “core identity” may have unintentionally resulted in a heightened threshold for establishing an aboriginal right. For this reason, I think it necessary to discard the notion that the pre-contact practice upon which the right is based must go to the core of the society’s identity, i.e. its single most important defining character. This has never been the test for establishing an aboriginal right. This Court has clearly held that a claimant need only show that the practice was integral to the aboriginal society’s pre-contact distinctive culture.
[41] The notion that the pre-contact practice must be a “defining feature” of the aboriginal society, such that the culture would be “fundamentally altered” without it, has also served in some cases to create artificial barriers to the recognition and affirmation of aboriginal rights.
* * *
[45] The aboriginal rights doctrine, which has been constitutionalized by s. 35, arises from the simple fact of prior occupation of the lands now forming Canada. The “integral to a distinctive culture” test must necessarily be understood in this context. As L’Heureux-Dubé J. explained in dissent in Van der Peet,“[t]he ‘distinctive aboriginal culture’ must be taken to refer to the reality that, despite British sovereignty, aboriginal people were the original organized society occupying and using Canadian lands: Calder v. Attorney‑General of British Columbia, supra, at p. 328, per Judson J., and Guerin, supra, at p. 379, per Dickson J. (as he then was)” (para. 159). The focus of the Court should therefore be on the natureof this prior occupation. What is meant by “culture” is really an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits. The use of the word“distinctive” as a qualifier is meant to incorporate an element of aboriginal specificity. However, “distinctive” does not mean “distinct”, and the notion of aboriginality must not be reduced to “racialized stereotypes of Aboriginal peoples” (J. Borrows and L. I. Rotman, “The Sui GenerisNature of Aboriginal Rights: Does it Make a Difference?” (1997), 36 Alta. L. Rev. 9, at p. 36). [Emphasis added.]
[23] The appellant notes that the trial judge inquired into the respondents’ pre-contact way of life, as suggested in para. 45 of Sappier, when she found that trading in fish was integral to the distinctive culture of the respondents’ pre-contact society. The appellant maintains that she set the bar too low, and that she erred in failing to apply the “distinctive culture” test from Van der Peet. The appellant points to paras. 53-54 of Lax Kw’alaams in support of its view. In that passage, the court dealt with a similar argument, and Binnie J. made it clear that the references to “way of life” in Sappier should not be read as departing from the “distinctive culture” test in Van der Peet.
[24] It is submitted also that the judge took an overly expansive view of what constituted trade in fish and fish products by including practices such as tribute and gift giving in this category. It is argued that the records relied upon by experts, including the Jewitt records, demonstrate that exchanges related to the latter practices proportionally outweigh instances of trade. It is also said she considered an irrelevant subject, namely trade in items other than fish and fish products.
[25] The need to prove integrality to the culture in this class of case arises from the earlier decisions of the Supreme Court of Canada in Van der Peet; R. v. N.T.C. Smokehouse Ltd., 1996 CanLII 159 (SCC), [1996] 2 S.C.R. 672; and R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723. In Van der Peet, Lamer C.J. said:
[55] ...The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was.
* * *
[59] A practical way of thinking about this problem is to ask whether, without this practice, custom or tradition, the culture in question would be fundamentally altered or other than what it is. One must ask, to put the question affirmatively, whether or not a practice, custom or tradition is a defining feature of the culture in question.
[Emphasis of Lamer C.J.]
[26] It was pointed out in N.T.C. Smokehousethat a finding of integrality is highly fact dependent (para. 24). In that case, it was decided that because instances of trading in fish in the pre-contact culture of that group’s ancestors were “few and far between”(para. 26), it had not been demonstrated that the exchange of fish for money or other goods was integral to that particular culture. By contrast, in R. v. Gladstone, the evidence was found to demonstrate integrality and to support a modern commercial trading right:
[28] ...The appellants have provided clear evidence from which it can be inferred that, prior to contact, Heiltsuk society was, in significant part, based on such trade. The Heiltsuk were, both before and after contact, traders of herring spawn on kelp. Moreover, while to describe this activity as “commercial” prior to contact would be inaccurate given the link between the notion of commerce and the introduction of European culture, the extent and scope of the trading activities of the Heiltsuk support the claim that, for the purposes of s. 35(1) analysis, the Heiltsuk have demonstrated an aboriginal right to sell herring spawn on kelp to an extent best described as commercial. The evidence of Dr. Lane, and the diary of Dr. Tolmie, point to trade of herring spawn on kelp in“tons”. While this evidence relates to trade post-contact, the diary of Alexander Mackenzie provides the link with pre-contact times; in essence, the sum of the evidence supports the claim of the appellants that commercial trade in herring spawn on kelp was an integral part of the distinctive culture of the Heiltsuk prior to contact.
[27] I am not persuaded that Garson J. applied the wrong test in concluding that fishing and trade in fish were integral to the respondents’ culture. At para. 38 of her reasons, Garson J. noted, correctly I believe, that although the Supreme Court of Canada seems to have, in Sappier, perhaps modified language about a practice being “the core of the society’s identity”, the Court has not resiled from the requirement that a custom or practice must be “a central and significant part of the society’s distinctive culture”. She is here adverting to the pre-contact culture. At para. 98 of her reasons, she said:
[98] This claim to an aboriginal right requires the Court to examine the pre-contact way of life of the Nuu-chah-nulth in order to determine whether, as a question of fact, the evidence establishes trade in fish, and whether any such trade was integral to the distinctive culture of the pre-contact Nuu-chah-nulth.
She summarized her understanding of integrality and expressed her factual conclusion at paras. 284-285:
[284] The next question prescribed by Van der Peetconcerns the integrality of trade to the plaintiffs’ culture. To be integral, a practice must be a central and significant aspect of the aboriginal society’s distinctive culture, and cannot be merely incidental to an integral practice: Van der Peet, at para. 56. “Culture” in this context entails an inquiry into the pre-contact way of life of a particular aboriginal community, while“distinctive” incorporates an element of aboriginal specificity: Sappier, at para. 45.
[285] Much of the earlier discussion incorporated evidence relevant to the question of whether fishing and trade in fish were integral to Nuu-chah-nulth culture. I am satisfied that the evidence just reviewed demonstrates that fishing and trade in fish were integral to the Nuu-chah-nulth culture.
She went on to find that fishing was a predominant feature, and indigenous trade in fish a prominent feature, of the respondents’ culture (at para. 440).
[28] I am satisfied that a review of the trial judge’s reasons as a whole on the question of integrality reveals she was well aware of the test established in Van der Peet and properly applied it.
[29] The judge characterized some gift giving as a polite or reciprocal type of trade and observed (para. 223) that marital arrangements were made between groups to facilitate trade. As I see it, she did not view trade in fish and fish products as a watertight compartment by excluding other forms of inter-group exchanges that facilitated the trading relationship. As I earlier observed, these cases are going to be always evidence (fact) dependent. Sporadic trade in a resource, as was found to be the historic situation in both Lax Kw’alaams and N.T.C. Smokehouse, will not suffice. The evidence of trade must indicate a substantial practice. If a judge is alert to what is requisite, and I consider the trial judge here manifested a correct appreciation of what was required to be proven by claimants, an appellate court should show due deference to factual findings of the trial court. I am not persuaded that the trial judge here set the bar too low or took account of irrelevant matters when she made her findings that the evidence about the practices of the ancestors of the plaintiffs demonstrated the integrality of trade in fish and fish products to the cultural identity of the ancestors of the claimant groups. I would not accede to the submissions that she erred in her analysis of this issue.
[30] The appellant and the intervenors, B.C. Wildlife Federation and B.C. Seafood Alliance, submit the judge paid too little attention to the issue of species specificity as a relevant consideration in her analysis. At para. 40 of the reasons of this Court in Lax Kw’alaams, Newbury J.A. noted that, while trading in a particular species may be a relevant factor, the particular practice in each case will be the most cogent consideration in describing which rights can be proven. In the present case, the trial judge found the ancestors of the plaintiff group fished and traded in a wide variety of fish and fish products. Of course, in Lax Kw’alaams, the factual finding was very different, the judge there finding that significant trade had occurred only in eulachon products. In his decision in Lax Kw’alaams, Binnie J. observed:
[57] The“species-specific” debate will generally turn on the facts of a particular case. Had it been established, for example, that a defining feature of the distinctive Coast Tsimshian culture was to catch whatever fish they could and trade whatever fish they caught, a court ought not to “freeze” today’s permissible catch to species present in 1793 in the northwest coastal waters of British Columbia....
[31] I earlier adverted to the methodology advocated by Binnie J. concerning the analysis to be undertaken in these cases (see para. 9,supra). In my earlier reasons delivered in 2011, I noted that what was at issue in this case was only in part resolved by the trial judge. While the judge made affirmative findings about significant historic fishing and trading and concluded there had been a prima facie infringement of the Aboriginal rights of the plaintiff groups by the extant fisheries regulation regime, she did not enter upon the task of resolving the significant issues of accommodation and justification. Rights do not exist in a vacuum. As Newbury J.A. observed in Cheslatta Carrier Nation v. British Columbia,2000 BCCA 539 (CanLII), 2000 BCCA 539, 193 D.L.R. (4th) 344 at paras. 18-19, 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.”
[32] It should be recalled that prior to this action, the appellant never recognized that the respondents had an Aboriginal right to fish. The appellant had, however, provided evidence at trial of the efforts made to enhance and provide access to fishery resources for the benefit of the respondents. Garson J. said this near the conclusion of her reasons:
[875] Here, it is for the parties to negotiate towards a quantification of the amount and means of exercise of the plaintiffs’ aboriginal rights to fish and to sell fish that will recognize these principles. For example, Canada may be able to justify, depending upon the health and abundance of fish stocks, considerable constraint on a special Nuu-chah-nulth fishery. However, as I have endeavoured to make clear, negotiations have previously gone forth without recognition of the plaintiffs’aboriginal rights. They must now proceed on a different footing than has heretofore taken place, one that starts with recognition of the plaintiffs’constitutional rights to fish and to sell that fish.
[876] The delicate and challenging task now facing the parties is to recognize the plaintiffs’ rights within the context of adherence to Canada’s legislative objectives and to fairly balance the plaintiffs’ priority with other societal interests.
[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.
[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 lisbetween 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, 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 commerciallyis 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. [Emphasis in original; para. 75.]
[38] I note that there was some difference between the reasons of the majority and the reasons of Chiasson J.A. in our earlier judgment concerning the appropriate characterization of rights as enunciated by Garson J. At para. 487 of her reasons, she said, “the most appropriate characterization of the modern right is simply the right to fish and to sell fish”. The majority reasons found adequate, at this stage of the proceedings, this characterization of the right claimed, with the exception of the geoduck fishery. Issues concerning that particular fishery are not before us. Chiasson J.A., in partial dissent, would have characterized the right as an “aboriginal right to sell fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities.”
[39] I have concluded that what the trial judge did is not out of accord with the methodology adumbrated by the Supreme Court in Lax Kw’alaams. It follows that I would partially dismiss this appeal from the judgment of Garson J. pronounced November 3, 2009. The partial dismissal is because of the previous allowance of the appeal concerning the geoduck fishery. I would dispose of this appeal as set forth in my earlier reasons delivered in May 2011.
“The Honourable Mr. Justice Hall”
I agree:
“The Honourable Madam Justice Neilson”
Reasons for Judgment of the Honourable Mr. Justice Chiasson:
[40] I have had the privilege of reading the reasons for judgment of Mr. Justice Hall on this reconsideration. As I stated in our previous decision:
I agree with his conclusions concerning the findings of fact of the trial judge and the geoduck fishery, but would alter the order of Madam Justice Garson to describe the scope of the aboriginal right to sell fish to read, “to sell fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities.
[41] In my previous reasons, I considered the implications of the judge’s finding of fact that the plaintiffs did not fish to accumulate wealth, as she stated in para. 281(8) of her reasons. After reviewing what I consider to be the relevant and controlling authorities, I stated:
[87] The trial judge quoted from Van der Peet and Marshall where the concept of fishing not to accumulate wealth was discussed. She concluded that the respondents’ right was not a full commercial right. This was based on her finding that the respondents did not fish to accumulate wealth, but the judge appears not to have considered the implications of that finding because she declined to limit the right accordingly. It is not appropriate simply to ignore the finding. The finding requires content: what are the implications of a determination that pre-contact Nuu-chah-nulth traded fish extensively, but did not do so for the accumulation of wealth? I proceed on the basis the finding was not irrelevant; indeed, it anchored the judge’s limitation of the commercial right.
[88] In my view, effect should have been given to the judge’s finding of fact. The judge used the phrase initiated by McLachlin J. in Van der Peet. In my view, she should have given some meaning to the finding of fact that the respondents did not fish to accumulate wealth. Guidance could and should have been provided. The language she used derives from existing authority to which she referred, as is apparent from tracing the concept of fishing for sustenance articulated in the judgments of McLachlin J. in Van der Peet andGladstone and adopted in Marshall. In my view, pre-contact fishing not for the purpose of accumulating wealth translates to the modern right to sell fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities.
[89] In para. 482 of her reasons, the judge rejected “the harvest and sale of fish ‘to sustain the community’ [as] a viable characterization”. It may be that she had in mind sustenance as that concept was understood before the observations of Binnie J. in Marshall, that is, fishing for survival. If so, the rejection was compatible with her unequivocal finding that the respondents had a significant trade in fish. The finding that the respondents did not fish to accumulate wealth and the judge’s rejection of a right to participate in an“industrial” fishery…lead inexorably to the conclusion the respondents’aboriginal right is to sell fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities.
[42] I remain of this view. Determining the scope of an Aboriginal right is a question of mixed fact and law. Once the nature of the Aboriginal activity is ascertained as a matter of fact, a determination of the scope of the modern right must be guided by the law as articulated in the authorities. Simply put, the authorities hold that a finding that Aboriginal people did not fish to accumulate wealth translates into a limited modern right. In my view, the comments of the judge in para. 482 are not consonant with the law as stated in the authorities.
[43] From a practical perspective, the right the respondents contend was infringed is consistent with a right to sell fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities. The judge referred to the evidence of many witnesses who described “the mosquito fleet [which] fish[ed] commercially on a modest basis”. In para. 700, the judge observed:
While they lasted, the mosquito fleets enabled Nuu-chah-nulth members who no longer had commercial licences to sell their fish to earn a moderate income.
[44] As stated in my previous reasons:
I agree with the reasons and conclusion of Hall J.A. that the geoduck fishery must be removed from the aboriginal right and with his comments concerning the timing for negotiations and costs. I would allow the appeal to the extent of altering the order of Garson J. to read that the respondents have an aboriginal right to fish for all species of fish within their Fishing Territories and, except geoduck, to sell that fish for the purpose of attaining the modern equivalent of sustenance, a moderate livelihood, being the basics of food, clothing and housing, supplemented by a few amenities.
“The Honourable Mr. Justice Chiasson”

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Legislation cited (available on CanLII)

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Date:20080612
Docket:A-313-07
Citation: 2008 FCA 212
CORAM: NOËL J.A.
NADON J.A.
RYER J.A.
BETWEEN:
The AHOUSAHT INDIAN BAND, The DITIDAHT INDIAN BAND,
The EHATTESAHT INDIAN BAND, The HESQUIAHT INDIAN BAND,
The HUPACASATH INDIAN BAND, The HUU-AY-AHT INDIAN BAND,
The KA:’YU:K’T’H/CHE:K’TLES7ET’H’ INDIAN BAND,
The MOHAWCHAHT/MUCHALAHT INDIAN BAND,
The NUCHATLAHT INDIAN BAND, The NUCHATLAHT INDIAN BAND,
The TLA-O-QUI-AHT INDIAN BAND, The TOQUAHT INDIAN BAND,
The TSEHAHT INDIAN BAND, The UCHUCKLESAHT INDIAN BAND
And The UCLUELET INDIAN BAND
Appellants
and
THE MINISTER OF FISHERIES AND OCEANS
Respondent
Heard at Vancouver, British Columbia, on April 23,2008.
Judgment delivered at Ottawa, Ontario, on June 12, 2008.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY:
CONCURRING REASONS BY: NOËL J.A.
RYERJ.A.


Date: 20080612
Docket: A-313-07
Citation: 2008 FCA 212
CORAM: NOËL J.A.
NADON J.A.
RYER J.A.
BETWEEN:
The AHOUSAHT INDIAN BAND, The DITIDAHT INDIAN BAND,
The EHATTESAHT INDIAN BAND, The HESQUIAHT INDIAN BAND,
The HUPACASATH INDIAN BAND, The HUU-AY-AHT INDIAN BAND,
The KA:’YU:K’T’H/CHE:K’TLES7ET’H’ INDIAN BAND,
The MOHAWCHAHT/MUCHALAHT INDIAN BAND,
The NUCHATLAHT INDIAN BAND, The NUCHATLAHT INDIAN BAND,
The TLA-O-QUI-AHT INDIAN BAND, The TOQUAHT INDIAN BAND,
The TSEHAHT INDIAN BAND, The UCHUCKLESAHT INDIAN BAND
And The UCLUELET INDIAN BAND
Appellants
and
THE MINISTER OF FISHERIES AND OCEANS
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an appeal from a judgment of Mr. Justice Blais of the Federal Court (as he then was) dated May 29, 2007 2007 FC 567 (CanLII), (2007 FC 567), who dismissed the appellants’application for judicial review of a decision of the Minister of Fisheries and Oceans (the “Minister” or the “respondent”) to implement a three-year plan for the management of the Pacific coast commercial groundfish fisheries (the“Fisheries”) effective April 2006 (the “Pilot Plan”).
[2] Before the Applications Judge, the appellants, fourteen First Nations (the “Nuu-chah-nulth First Nations” or “the appellants”), whose lands are located on the west coast of Vancouver Island, argued that the Minister had failed to uphold the honour of the Crown and to meet his constitutional duty to consult and accommodate them before implementing the Pilot Plan.
[3] In dismissing the appellants’ judicial review application, Blais J. concluded that the Minister had not breached his constitutional duty to consult pursuant tosubsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11 (the “Constitution”).
THE FACTS
[4] In the Reasons which he gave in support of his decision, Blais J. carefully and thoroughly reviewed the facts relevant to the issues before him. Although the Judge’s summary of the evidence is somewhat lengthy, it is essential to a proper understanding of the issues raised in the appeal. Before reproducing the relevant paragraphs of the Judge’s Reasons, a few words concerning the reasons which led the Minister to introduce the Pilot Plan will be useful.
[5] There are over sixty different species of fish on the Pacific coast, with seven different fleets. Because the nature of the Fisheries is that species intermingle, this leads to what is referred to in the industry as a “bycatch”. In effect, although fishers may be licensed to catch one species of fish, for example halibut, they may well catch a number of other fish, i.e. the bycatch, while attempting to catch halibut. In such a situation, because fishers can only retain the fish that they are licensed to catch, the non-licensed fish must be returned to the water and, depending on the type of fish so returned, there is a high probability that the fish will die when returned to the water. This is clearly the situation in the case of rock fish.
[6] In 2001, the Minister determined that changes in the Fisheries had to be made, failing which significant curtailment thereof would be necessary. The proposed changes were meant to address conservation and protection issues pertaining to endangered and at risk rock fish species, bycatch mortality and to allow the Department of Fisheries and Oceans (“DFO”) to assess stocks by improving the monitoring and catch reporting for all species.
[7] In June 2003, the Species at Risk Act, S.C. 2002, c. 29, was enacted, resulting in the classification of Boccaccio rock fish as a threatened species and the identification of 11 other rock fish species as high priority for possible listing as “species at risk” under the Act.
[8] In March 2005, DFO decided that commencing with the 2006 fishing season, 100% electronic monitoring of catch would be required for all commercial groundfish fishing trips. Monitoring was deemed necessary in order to accurately account for all catch by a fishing vessel, be it landed or at sea releases. Through this means, DFO believed that it would have more accurate information to determine whether total allowable catches (“TAC”)within a given commercial groundfish Fishery were being exceeded. With more accurate information, the early closure of the Fisheries became a real prospect once TACs were reached.
[9] As a result, a system of individual quotas (“IQs”) became essential so to avoid the early closure of the Fisheries, which would, it goes without saying, lead to a severe disruption to fishers and communities that depend on the Fisheries. In order to effectively manage commercial fisheries, the support of stakeholders, including the appellants, was crucial to the success of DFO’s management plans. It is in this context that the consultation process with stakeholders took place.
[10] I now reproduce paragraphs 6 to 23 of the Judge’s Reasons:
[6] Discussions between DFO and industry associations commenced in March 2003, and resulted in discussion papers being prepared and in the formation of the Commercial Groundfish Integrated Advisory Committee (CGIAC), which had representatives from the commercial fishing industry, including the four major industry associations in groundfish fisheries, as well as the Province of British Columbia and DFO. The CGIAC also included representatives of coastal communities, of the Marine Conservation Caucus, of the Sports Fish Advisory Board and of the B.C. Aboriginal Fisheries Commission (BCAFC). It should be noted that the BCAFC designated someone from the NTC as their representative in 2004 and in 2005. While the designated representative failed to attend the four meetings of the CGIAC in 2004, the BCAFC was represented at the 2005 meetings, first by an NTC commercial fisher and, subsequently, by an employee of the NTC.
[7] The CGIAC created a committee comprised of sixteen of its members, known as the Commercial Industry Caucus (CIC), which prepared the proposal that later became the Pilot Plan. There was no aboriginal representative on this committee.
[8] In March 2005, all hook/line and trap commercial groundfish fisheries licence eligibility holders and vessel owners were informed, in a letter sent by DFO, that mandatory 100 percent at-sea monitoring would be implemented starting in 2006. Also in March 2005, the Commercial Industry Caucus Pilot Integration Proposal (the Reform Proposal) was submitted to the CGIAC and to DFO.
[9] Stakeholder consultation on the Reform Proposal began in June 2005, first with the creation of a website by DFO, providing information on the Reform Proposal and the various policies that led to this proposal, and second, by sending a letter, along with a consultation guide, to all groundfish fisheries licence holders, through which they were invited to send their comments to DFO on the Reform Proposal. Letters and consultation guides were also sent to all British Columbiacoastal First Nations, seeking their input. The second stage of the stakeholder consultations took place in October and November 2005, when representatives from DFO travelled to four cities in the province to engage in discussions with stakeholders. The final stage of the consultation process consisted of bilateral discussions with affected First Nations. That being said, the applicants were not included in these planned bilateral discussions as the respondent did not consider their asserted aboriginal rights to be adversely impacted by the Reform Proposal.
[10] The applicants note that the notion of bilateral consultation with the Niu-chah-nulth First Nations was first raised by the applicants in January 2005, and then again at the CGIAC meetings of April 15, 2005 and May 30, 2005.
[11] The first meeting between DFO representatives and representatives of the applicants where the Reform Proposal was to have been discussed was the JTWG meeting that was to have been held in September 2005. However, this meeting was cancelled by the NTC as the head of the NTC Fisheries Department, Dr. Hall, was not available.
[12] The meeting was rescheduled on November 18, 2005, at which time Ms. Trager [Diana Trager, the Regional Resource Management Coordinator for the Groundfish Management Unit], representing DFO, met with NTC officials to discuss various fisheries issues, including the Reform Proposal. A further meeting took place between DFO representatives and representatives of the applicants on November 28, 2005, where Ms. Trager provided a presentation on the Reform Proposal and answered questions.
[13] Another meeting of the JTWG was held on November 29, 2005, but the discussion was limited to the draft consultation protocol proposed by the applicants in a letter dated November 23, 2005, which would allow consultation to proceed on a number of fisheries issues, including the Reform Proposal. There were six stages to this consultation protocol:
1. Identification of policy proposals
2. Explanation and initial discussion of the policy proposals
3. Provision and consideration of further information
4. Nuu-chah-nulth response
5. DFO response
6. Accommodation
[14] The respondent agreed to take the consultation protocol under advisement and, in a letter dated December 20, 2005, Mr. Sprout [Paul Sprout, the Regional Director General for DFO in the Pacific Region] noted that they were still awaiting comments from their colleagues in Ottawa, but that DFO was essentially in agreement with the first five stages of the consultation protocol, and suggested that they should proceed immediately with these stages.
[15] A subsequent meeting was held on January 23, 2006, but discussion was limited to the consultation protocol, since the applicants maintained that they were not prepared to discuss the Reform Proposal until DFO committed to the proposed consultation protocol. At this meeting, Mr. Kadowaki [Ronald Kadowaki, the Lead Director for Pacific Fisheries Reform] advised the applicants’ representatives that DFO was essentially in agreement with the first five stages of the consultation protocol, but that the sixth stage would depend on what happened in the first five stages. Additionally, Mr. Kadowaki notes in his affidavit that he stressed the urgency of the groundfish initiative, as one of the major groundfish fisheries would be opening in March 2006, and thus that it was imperative that the consultations be undertaken on an urgent basis. He also indicated that DFO was not prepared to agree to the timeline proposed in the consultation protocol for this initiative.
[16] Another attempt was made to schedule a meeting for the first week of February 2006 to move on to stage 3 of the consultation protocol, which was rebuked by the applicants, stating again that they were not prepared to engage in substantial consultations until there was an agreement on the consultation protocol. Dr. Hall stated that the preparation of questions for stage 3, while underway, had not been a high priority “pending agreement on the Consultation Protocol and in relation to other higher priority activities in recent weeks”.
[17] In a letter dated February 16, 2006, Mr. Kadowaki wrote that “DFO is in agreement with many aspects of your proposed consultation protocol and we believe that it can provide the basis of a useful and practical framework for consultations”.Mr. Kadowaki also reiterated the urgency of consultations on the Reform Proposal, as implementation was being considered for the 2006 fishing season.
[18] While the applicants submit that, through this letter, DFO agreed to be bound by the consultation protocol, the respondent maintains that there was no such commitment by DFO. The respondent also notes that this letter must be read in light of the previous letter sent by Ms. Trager dated January 16, 2006, where she indicated to the applicants that DFO was considering implementing the Reform Proposal for the 2006 fishing season, and in light of Mr. Kadowaki’s affidavit where he states that it was made clear to the applicants that DFO did not agree with the proposed timeline.
[19] On February 20, 2006, the applicants indicated that they were prepared to move forward with the consultations and proceed with stage 3 of their consultation protocol. As such, they forwarded 102 questions to Ms. Trager.
[20] On February 24, 2006, another meeting was held at which DFO provided draft answers to some of the questions submitted. Responses were later provided by DFO on 94 of the 102 questions in an email sent March 13, 2006.
[21] No further meetings were held after that, but correspondence continued to be exchanged between the parties, including letters from the applicants objecting to the lack of consultation and voicing their opposition to the Reform Proposal. A letter was also sent seeking a meeting with the Minister during his visit to the region in March 2006. While the Minister did not meet with them on that occasion, the respondent notes that there was a meeting between the Minister and the Nuu-chah-nulth First Nations in January 2006.
[22] A series of memoranda to the Minister were sent on February 17, 2006, March 17, 2006, March 31, 2006 and April 5, 2006, in which the concerns expressed by First Nations are clearly noted. In particular, the first memorandum goes into much detail about the opposition from First Nations, including the NTC.
[23] When the final proposal was released in April 2006, it largely reflected the CIC proposal to the CGIAC, although some changes were made, including the implementation of the proposal as a pilot plan for a three-year period, the fact that quota reallocation between licences within a groundfish fishery were to take place on a temporary basis for the current fishing year only, and a commitment by DFO that additional lingcod and dogfish catch history would be made available to First Nations as lingcod and dogfish quotas.
THE DECISION OF THE FEDERAL COURT
[11] After setting out the issues before him, namely, the scope of the Minister’s duty to consult with the appellants, whether the steps taken by the Minister were sufficient to meet his duty to consult and what appropriate remedy the Court should order, if necessary, the Judge turned to the Supreme Court’s decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 S.C.R. 511, for guidance with respect to the relevant principles. Specifically, he referred to paragraphs 16, 20, 27 and 35 of Haida, supra, where the Supreme Court held that (i) in defining rights guaranteed under section 35 of theConstitution, the Crown must act honourably and, in so doing, must consult and, where appropriate, accommodate Aboriginal peoples; and that (ii) a duty to consult will arise when the Crown has knowledge, real or constructive, of the existence of an Aboriginal right that might be affected by the Crown’s conduct.
[12] The Judge then proceeded to determine the nature of the Aboriginal right at issue, which he found to be a right to fish commercially. This led him to note that although the Minister did not dispute the fact that he had knowledge of the appellants’claim to a right to fish commercially, he did not concede that the conduct contemplated under the Pilot Plan would affect the appellants’ right in question.
[13] With regard to the appellants’ contention that their food, social and ceremonial rights (“FSC rights”) were also at issue, the Judge found that since no adverse impacts on these rights had been shown by the appellants, it followed that the Minister did not have a duty to consult in regard thereto.
[14] The Judge then turned his attention to the scope of the Minister’s duty to consult insofar as the appellants’ right to fish commercially was concerned and sought to determine where that duty was located on the spectrum discussed in Haida, supra. He began his analysis with the proposition that determining the Aboriginal right which gave rise to the duty to consult was a necessary precondition to the determination of the scope and content of that duty and, in support of that proposition, he referred to paragraphs 43 to 45 of Haida, supra. As I have already indicated, the Judge found the right at issue to be the right to fish commercially.
[15] The Judge then reviewed the arguments put forward by both sides with regard to the scope of the Minister’s duty in the light of the evidence and of a number of Supreme Court decisions, namely: Haida, supra; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388; R. v. Nikal,1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013; and R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723. This led him to the conclusion that any infringement or adverse effects on the appellants’ right to fish commercially would be limited and that, as a result, the Minister’s duty to consult was located at the lower end of the spectrum. At paragraph 46 of his Reasons, the Judge stated his conclusion in the following terms:
[46] Having carefully considered the submissions from both parties in light of the applicable jurisprudence, I am satisfied that any infringements or adverse effects on the rights of the applicants to fish commercially resulting from the Pilot Plan would be limited, particularly in light of the fact that the respondent was pursuing a compelling and substantial objective of conservation of the resource in question for the benefit of all Canadians, including the applicants. As such, it is my conclusion that the duty to consult and accommodate the interests of the applicants would have been located on the lower end of the spectrum.
[16] The Judge then went on to examine whether the steps taken by the Minister were sufficient to meet his duty to consult. First, he addressed the period during which the Reform Proposal was being developed. In his view, bilateral consultations were not warranted during that period of time because the respondent’s duty to consult was located at the lower end of the spectrum, so that the appellants’involvement in the multilateral process through the CGIAC was such that the Minister was not required to take additional steps to consult with the appellants.
[17] Second, the Judge addressed the period of time commencing once the Reform Proposal was submitted to the Minister. He found that while the appellants had only received a formal copy of the Reform Proposal in June 2005, they had been aware since January 2005 of the general direction that was being pursued by reason of the participation of their representative in the CGIAC. The Judge noted that once the Reform Proposal was submitted, DFO began a process of stakeholder consultations in which the appellants were invited to participate by way of completion of a written questionnaire seeking their comments and of stakeholder meetings. The Judge further noted that the appellants were well aware of the key proposal contained in the Reform Proposal, i.e. the imposition of IQs which were a fact of life in most commercial groundfish fisheries since 1997 and to which they were, as a matter of principle, opposed. The Judge continued by observing that although the Minister did not, at the outset, intend to conduct bilateral consultations with the appellants, believing that multilateral consultations were sufficient to meet their concerns, he eventually did engage in bilateral consultations with the appellants. The Judge then noted that the appellants’ main complaint was that the bilateral consultations had not been completed before the Minister made the decision to implement the Pilot Plan and that, in their opinion, the failure to complete these consultations resulted from the fact that DFO was delinquent in commencing the consultations, thus leaving insufficient time to complete them.
[18] After pointing out that the Minister took the position that the failure to complete the bilateral consultations was the result of the appellants refusal to engage in meaningful discussions of the substantial issues arising from the Reform Proposal, the Judge indicated that although there could be no doubt that DFO should have begun the bilateral consultation process earlier than it did, i.e. in November 2005, he expressed the view that DFO “could not do everything at once” (paragraph 59). He also indicated that the appellants were partly responsible for the delays which had occurred during the course of the bilateral consultations.
[19] At paragraphs 64 to 66 of his Reasons , the Judge summarized his view of the matter and expressed his conclusion to the effect that the Minister had not breached his duty to consult the appellants in implementing the Pilot Plan prior to completion of the bilateral discussions:
[64] To sum up, a representative of the applicants was designated by the BCAFC to attend meetings of the CGIAC, thus allowing the applicants to be kept informed, however indirectly, of the work being done by the CIC on the Reform Proposal. Once DFO was ready to proceed with stakeholder consultations, the applicants were sent a letter explaining the situation, as well as a copy of the Reform Proposal and a written questionnaire allowing them to submit comments to the Minister. The applicants also participated in one of the stakeholder meetings held in November 2005. Two bilateral meetings were also held with the applicants in November 2005, at which the Reform Proposal was discussed. The applicants then submitted to the respondent a proposed consultation protocol, and refused to discuss substantive issues for the next two and a half months, insisting that the Minister first agree to this protocol before proceeding any further. Once the consultation process resumed in February, the applicants forwarded over one hundred questions to DFO, many of which the respondent insists were not clearly connected to any aboriginal interest that would give rise to the duty to consult. Nonetheless, DFO endeavoured to provide as many answers as possible within a very short timeframe. Meanwhile, a series of memoranda to the Minister were prepared in respect of the Reform Proposal, which outlined the opposition from First Nations, including the applicants. Finally, when the Pilot Plan was adopted, it contained some important changes meant to address concerns of stakeholders, notably the fact that it was now to be a three-year pilot project. There was also a specific commitment to First Nations that additional lingcod and dogfish catch history would be made available to them as lingcod and dogfish quotas. That measure, according to the respondent, was meant to address concerns raised by the NTC and other First Nations regarding quota and non-target species, as well as to address any additional costs incurred by the applicants as a result of the implementation of the Pilot Plan. As such, it is clear that a measure was introduced in the Pilot Plan to accommodate the potential adverse effects of the Reform Proposal identified by the applicants.
[65] While it is conceded by the respondent that bilateral consultations with the applicants had not concluded prior to a decision being made by the Minister on the Pilot Plan, I agree with the respondent that the applicants were provided with sufficient opportunities to participate in the process to satisfy the duty of the Minister to consult in this case, and that some of the delays that prevented the consultations from concluding prior to the decision being made were caused by the applicants.
[66] Given the multilateral consultations that were held by DFO in which the applicants took part, given the conservation issues at stake, given the potential impact on groundfish fisheries of the introduction of the 100 per cent monitoring of all catch for the 2006 fishing season without the implementation of transferable IQs, and given that the plan was introduced as a three-year pilot only, I am satisfied that the Minister’s decision to proceed without waiting for bilateral consultations with the applicants to conclude was justified, and did not constitute a failure to abide by his duty to consult with the applicants.
[Emphasis added]
SUBMISSIONS OF THE PARTIES
A. Appellants’ Submissions
[20] The appellants submit that since the implementation of the Pilot Plan “might” adversely affect their Aboriginal rights, i.e. commercial and FSC rights, it triggered the respondent’s duty to consult. They argue that the respondent’s rejection of consultations with respect to impacts other than on their commercial right to fish was an error of law that is reviewable on a correctness standard and that Blais J. erred in law by failing to apply this standard when reviewing the respondent’s determination. The appellants also say that the Judge made a patently unreasonable finding when he found that they were not concerned about the effects of the Pilot Plan upon their FSC rights.
[21] With respect to the scope of the duty to consult, the appellants say that Blais J. erred in law in limiting the duty to consult to their commercial right to fish and in finding that the duty fell at the lower end of the spectrum. On the basis ofR. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075 and R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723, the appellants submit that whether the respondent’s action was justified depends on the degree of consultations rather than on whether the objective of the action was conservation. Furthermore, they submit that the Judge erred in law in failing to look at each aspect of the Pilot Plan in determining whether it was justified and point to the fact that the transferable IQs found in the Pilot Plan did not have conservation as their main objective.
[22] The appellants also submit that Blais J. erred in determining that the respondent had met his duty to consult because he incorrectly determined the scope of consultations required. Further, the appellants submit that the multilateral stakeholder consultations, the nature of the Pilot Plan, the accommodation made by the respondent and their behaviour did not and cannot serve to eliminate their right to be meaningfully consulted.
[23] With respect to the issue of multilateral consultations, the appellants assert that the Judge erred in finding that these consultations were sufficient to satisfy the respondent’s duty to consult. In their view, such consultations were not sufficient, even if the scope of the duty to consult is at the lower end of the spectrum.
[24] The appellants further argue that it was wrong for the Judge to consider the urgency of implementing the Pilot Plan and the fact that that plan was a three-year pilot project only in determining whether the Minister had met his duty to consult and accommodate. In their view, the duty to consult depends on the strength of the claim at issue and the degree of infringement, and as a result, even if the Pilot Plan was a pilot project, serious impacts on their rights could still result from implementation of the Pilot Plan. With respect to the accommodation made by the respondent, the appellants say that lingcod and dogfish allocations in favour of First Nations were unilateral measures that cannot satisfy the respondent’s duty to consult.
[25] Finally, the appellants submit that the Judge erred in finding that their conduct somehow lessened their right to be consulted. They say that they should not be blamed for the fact that they consistently requested bilateral consultations in accordance with the proposed framework set out in Haida, supra.
B. Respondent’s Submissions
[26] The respondent submits that Blais J. was correct in finding that any adverse impacts on the appellants’rights were limited and that the duty to consult pertained only to the appellants’ commercial right to fish. With respect to the appellants’ FSC rights, the respondent argues that the Pilot Plan does not impact these rights, as any allocations for such rights were to be made before any allocations were made to the commercial sector. Hence, the respondent submits that the Judge was correct in concluding that the appellants’ FSC rights would not be impacted by the implementation of the Pilot Plan because there was no “meaningful impact” on these rights. Furthermore, the respondent submits that any impact on the treaty process does not trigger a duty to consult.
[27] With respect to the scope of the duty to consult, the respondent submits that the Judge correctly determined that that duty lies at the lower end of the spectrum, since the adverse impacts on the appellants’ commercial right to fish were limited. Indeed, according to the respondent, it was not shown that there would be any alteration of the Fisheries or high risk of non-compensable damages resulting from the Pilot Plan. The respondent says that the appellants incorrectly submit that the Judge based his finding with respect to the scope of the duty on the fact that a commercial right was at issue and that any impact was justified because the goal of the Pilot Plan was conservation. Rather, the Judge based his finding on the fact that the only alleged right impacted was a commercial right and that the impacts on this right would be limited, because of, amongst other things, the conservation aspect of the Pilot Plan.
[28] While the respondent admits that the consultations did not conclude to the satisfaction of the appellants before the Minister made his decision, he submits that Blais J. correctly concluded that there was no breach of the duty to consult, pointing out that there was no requirement that the consultations conclude to the satisfaction of the First Nations and that the reason why the consultations had not concluded was due in part to the appellants’ conduct. The respondent further submits that the appellants’ position on IQs had crystallized by the time of the bilateral meetings in February 2006 and according to Taku, supra, consultations can terminate at this point. The respondent also submits that the urgency of making a decision in light of conservation concerns was also a factor to be considered in determining the Minister’s duty to consult.
[29] The respondent argues that, in the end, the Judge rightly concluded that the appellants’participation in the multilateral process coupled with the fact that any duty to consult was at the lower end of the spectrum was sufficient to satisfy any duty to consult while the Reform Proposal was being developed. However, the appellants’ participation was only one factor, along with others, that led to the conclusion that the Minister had satisfied his duty to consult.
[30] On the issue of accommodation, the respondent submits that for most of the period at issue, the appellants did not consult with the Minister’s officials and opportunities to discuss accommodation were limited. Moreover, although DFO attempted to consult with the appellants about making extra quota available as a means to accommodate them, the appellants were no longer interested in consulting with DFO after they were advised that the Minister would be implementing the Pilot Plan in April 2006.
[31] In the event that this Court finds that the Minister breached his duty to consult and to accommodate the appellants, the respondent submits that the Court should exercise its discretion and not quash the Pilot Plan. Rather, the Minister proposes other remedies such as a declaration of the need for further consultation between the parties, directions as to the scope, content and schedule of the consultations and providing leave to the parties to seek further directions.
ISSUES
[32] The appeal raises the following issues:
1. Did the Judge err in finding that the right at issue was the appellants’ right to fish commercially?
2. Did the Judge err in finding that the scope of the Minister’s duty to consult lies at the lower end of the spectrum?
3. Did the Judge err in finding that the Minister met his duty to consult and accommodate?
ANALYSIS
A. Standard of review
[33] The learned Judge did not determine what standard of review applied to the Minister’s decision to introduce the Pilot Plan. In Haida, supra, the Supreme Court offered the following guidance with respect to the standard of review applicable to a decision of the Crown which gave rise to a duty to consult:
61 On questions of law, a decision-maker must generally be correct: for example, Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55 (CanLII), [2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748.
62 The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, accommodates the collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play... . So long as every reasonable effort is made to inform and to consult, such efforts would suffice." The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.
63 Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness.Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government's process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.
[Emphasis added]
[34] Thus, in my view, the determination of the existence and extent of the duty to consult or accommodate is a question of law and, hence, reviewable on a standard of correctness. However, when the Crown has correctly determined that question, its decision will be set aside only if the process of consultation and accommodation is unreasonable. In my view, the Supreme Court’s recent decision in Dunsmuir v. New Brunswick,2008 SCC 9 (CanLII), 2008 SCC 9, does not change the standard of review applicable in this case.
B. Existence of the Duty to Consult or Accommodate
[35] The Crown’s duty to consult and accommodate, as explained in Haida, supra, arises when the Crown “has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida, supra, para. 35) (See also: Halfway River First Nation v. British Columbia (Ministry of Forests), 1997 CanLII 2719 (BC SC), [1997] 4 C.N.L.R. 45 (B.C.S.C.), at p. 71). As a corollary to this proposition is the one that the duty to consult is triggered at a low threshold (see Mikisew, supra, at para. 55).
[36] In the present matter, the Minister does not dispute the fact that he had knowledge of the appellants’ claimed Aboriginal rights. However, the Minister does not concede that the appellants have a strong claim and, in support of that view, relies on the Supreme Court’s decision in R. v. NTC Smokehouse, 1996 CanLII 159 (SCC), [1996] 2 S.C.R. 672, where the Supreme Court held that two of the appellant First Nations did not have commercial rights to sell fish.
[37] The appellants say that rights other than their right to fish commercially might be affected by the implementation of the Pilot Plan. Firstly, with respect to the potential impact on treaty settlements and socioeconomic impacts on First Nation communities, I agree entirely with the Applications Judge that since treaty settlements constitute a discrete process, such impact would not trigger a duty to consult. With respect to their FSC rights, the Judge found, and I agree entirely with him, that the appellants did not adduce any evidence to support their contention that these rights “might” be adversely impacted. Even if the duty to consult is triggered at a low threshold (see Mikisew Crew First Nation v. Canada (Minister of Canadian Heritage),2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388, at para. 55), mere submissions are not, in my view, sufficient to demonstrate that the Pilot Plan might have negative impacts upon the Aboriginal right to fish for FSC purposes.
[38] Hence, I am of the view that Blais J. did not err in finding that the respondent correctly determined that the appellants’ right to fish commercially was the only right which might be adversely affected by the Pilot Plan. Although the Judge did not say what standard of review he applied, it is clear from his Reasons that he did not show any deference and thus he applied the standard of correctness.
C. Scope of the Duty to Consult
[39] The scope of the duty to consult depends not only on the strength of the case supporting the existence of the right at issue, but also on whether the right is limited and on whether there are potentially adverse effects upon the right claimed (Haida, supra, paras. 39 and 68). The Supreme Court has made it clear that when the Aboriginal right at issue is limited or the potential for infringement is minor, the scope of the duty lies at the lower end of the spectrum. At paragraphs 43 to 45 in Haida, supra, the Court said:
¶ 43 Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. "'[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.
¶ 44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.
¶ 45 Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.
[Emphasis added]
[40] The relevant weight to be given to each of the factors mentioned in Haida, supra, will depend upon the facts of the case. For example, one factor may be determinative for locating on the spectrum the duty to consult. In Mikisew Cree First Nation, supra, the Court found that the Crown’s duty to consult laws at the lower end of the spectrum, notwithstanding that the rights at issue (treaty rights to hunt and trap) were certain and that the impacts upon those rights were clear, established and demonstrably adverse to the continued exercise of hunting and trapping rights.
[41] In the present matter, even though the Judge appears to have accepted that the appellants made a strong prima facie case with respect to their right to fish commercially, he nonetheless found that the Minister’s duty to consult was located at the lower end of the spectrum because “any infringements or adverse effects on the rights of the [appellants] to fish commercially resulting from the Pilot Plan would be limited, particularly in light of the fact that the [respondent] was pursuing a compelling and substantial objective of conservation of the resource in question for the benefit of all Canadians, including the [appellants]”(Judge’s Reasons, paragraph 46).
[42] It appears that the Judge came to that view in part by reason of the Minister’s submission that a government can legitimately pursue a broad range of objectives that can justify an infringement of the Aboriginal rights at issue. Such justification to the infringement would lead to a finding of a minimal duty to consult. This conclusion raises the question of whether the doctrine of justification, as set out in Sparrow, supra, and Gladstone, supra, is applicable in cases where the scope of the duty to consult is at issue.
[43] In Mikisew Cree First Nation, supra, the Supreme Court discussed the application of Sparrow, supra, in the context of the analysis of the Crown’s duty to consult:
56 In summary, the 1899 negotiations were the first step in a long journey that is unlikely to end any time soon. Viewed in light of the facts of this case, we should qualify Badger's identification of two inherent limitations on Indian hunting, fishing and trapping rights under Treaty 8 (geographical limits and specific forms of government regulation) by a third, namely the Crown's right to take up lands under the treaty, which itself is subject to its duty to consult and, if appropriate, accommodate First Nations' interests before reducing the area over which their members may continue to pursue their hunting, trapping and fishing rights. Such a third qualification (not at issue in Badger) is fully justified by the history of the negotiations leading to Treaty 8, as well as by the honour of the Crown as previously discussed.
57 As stated at the outset, the honour of the Crown infuses every treaty and the performance of every treaty obligation. Treaty 8 therefore gives rise to Mikisew procedural rights (e.g. consultation) as well as substantive rights (e.g. hunting, fishing and trapping rights). Were the Crown to have barrelled ahead with implementation of the winter road without adequate consultation, it would have been in violation of its procedural obligations, quite apart from whether or not the Mikisew could have established that the winter road breached the Crown's substantive treaty obligations as well.
58 Sparrowholds not only that rights protected by s. 35 of the Constitution Act, 1982 are not absolute, but also that their breach may be justified by the Crown in certain defined circumstances. The Mikisew rights under Treaty 8 are protected by s. 35. The Crown does not seek to justify in Sparrow-terms shortcomings in its consultation in this case. The question that remains, therefore, is whether what the Crown did here complied with its obligation to consult honourably with the Mikisew First Nation.
(3) Was the Process Followed by the Minister Through Parks Canada in this Case Sufficient?
59 Where, as here, the Court is dealing with a proposed "taking up" it is not correct (even if it is concluded that the proposed measure if implementedwould infringe the treaty hunting and trapping rights) to move directly to a Sparrowanalysis. The Court must first consider the process by which the "taking up" is planned to go ahead, and whether that process is compatible with the honour of the Crown. If not, the First Nation may be entitled to succeed in setting aside the Minister's order on the process ground whether or not the facts of the case would otherwise support a finding of infringement of the hunting, fishing and trapping rights.
[Emphasis added]
[44] In light of the above considerations, I am of the view that the learned Judge was wrong to rely on the grounds put forward by the Minister to justify the infringement of the appellants’ right to fish commercially at the stage of determining what the scope of the Minister’s duty to consult was. Even if the Judge did not expressly state in his Reasons that he was relying on Sparrow, supra, and on the Supreme Court’s subsequent decision in Gladstone, supra, he nonetheless referred to passages in those decisions in characterizing the Minister’s objective of conservation as “compelling and substantial”. As appears clearly from its decision in Mikisew Cree First Nation, supra, the Supreme Court views the process followed and the duty to consult attached to it as a question distinct from that of whether there is infringement of an Aboriginal right and whether the infringement is justified. Thus, the conservation objective of the Pilot Plan was, in my view, not relevant at this stage of the analysis, except to the extent that the pursuit of conservation would lead to or result in minimal impact on the Aboriginal right at issue.
[45] The proper approach required the Judge, in my view, to focus on whether the Aboriginal claim was weak, limited, or whether the potential for infringement was minor. Although the Judge erred in the approach that he took, I am nonetheless satisfied that he was correct in finding that the Minister’s duty to consult was located at the lower end of the spectrum. Like the Judge, I am satisfied that any impact of the Pilot Plan on the appellants’ right to fish commercially would be limited. On the evidence, it is unclear how exactly the Pilot Plan impacts negatively upon the appellants’ right. It is clear, however, that the implementation of the Pilot Plan does not result in either an alteration of the Fisheries or create a high risk of non-compensable damages.
[46] I therefore conclude, as did the Judge, that the scope of the Minister’s duty herein lies at the lower end of the spectrum. Again, although the Judge did not mention what standard of review he applied, he does not appear to have shown deference and therefore, in my view, he applied the correctness standard.
D. Was the Duty to Consult Met?
[47] Because he found that the Minister had correctly determined the right which triggered the duty to consult and the scope of that duty, the Judge then addressed the issue of whether the process of consultation and accommodation implemented by the Minister was reasonable. After reviewing the evidence and the authorities, he concluded that “the Minister’s decision to proceed without waiting for bilateral consultations with the applicants to conclude was justified, and did not constitute a failure to abide by his duty to consult with the applicants”(Judge’s Reasons, para. 66).
[48] More particularly, the Judge first dealt with the period during which the Reform Proposal was being developed. He concluded that during this period, bilateral consultations were not required and that the multilateral process through the CGIAC was sufficient to satisfy the Minister’s duty. With respect to the period during which the reform proposal was put forward for discussion by the Minister, the Judge found that notwithstanding the fact that bilateral consultations with the appellants had not run their full course, the Minister had nonetheless fulfilled his duty to consult. In so concluding, the Judge observed that the appellants’ conduct was responsible for some of the delays which had prevented the bilateral consultation process from concluding prior to the Minister’s decision.
[49] The determination of whether the Minister’s duty to consult and accommodate is reasonable depends essentially on the scope of the duty to consult. Where the scope of the duty is located at the lower end of the spectrum, as here, the respondent’s duty may possibly be limited to giving notice of its intended action, disclosing information and discussing issues raised in response to the notice.
[50] In the present matter, there can be no doubt, in my view, that the respondent clearly demonstrated an intention of substantially addressing Aboriginal concerns through a meaningful process of consultation. I can see no basis to disagree with the Judge’s finding that the Minister provided the appellants with sufficient opportunities to participate in the process. The Judge also found, and I see no reason to disagree with his view, that the appellants were partly to blame for the delays which occurred during the course of the consultation process.
[51] In R. v. Douglas, 2007 BCCA 265 (CanLII), 2007 BCCA 265, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 352 (QL), the British Columbia Court of Appeal dealt with the question of whether multilateral consultations were sufficient so as to satisfy the Minister’s duty to consult. The Court held that given the nature of the Fishery, the number of First Nations involved and the lack of unanimity between them, joint consultation was reasonable and appropriate as DFO had provided the First Nations with the necessary information, technical assistance and opportunities to express their concerns:
40 In this case, DFO conducted extensive and detailed consultations with Fraser River First Nations as to its conservation objectives. Given the nature of the Fraser River salmon fishery, the number of First Nations involved, and the lack of unanimity between them on important issues, DFO's emphasis on joint consultations was reasonable and appropriate. DFO provided the necessary information and technical assistance. DFO provided opportunities for the First Nations to express their concerns and resources to facilitate the meetings. DFO adjusted the escapement target and exploitation rate in response to First Nations' concerns. In this way, DFO complied with the standard set out in Halfway River, supra, and in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 64. Because the Cheam refused to participate in the joint consultations, DFO attempted to consult them separately. The trial judge found, and the appeal judge agreed, that DFO's efforts to engage the Cheam in consultation were reasonable and in good faith.
[Emphasis added]
[52] In Douglas, supra, the B.C. Court of Appeal also found that First Nations were duty-bound to consult with the Minister in good faith and that they could not, by their conduct, place unnecessary obstacles in the way of the consultation process. The Court, at paragraph 39 of its Reasons, referred to the following passage from Halfway River First Nation, supra, which identified a reciprocal duty of First Nations in the consultation process:
161. … There is a reciprocal duty on Aboriginal Peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions…
[53] In Douglas, supra, the B.C. Court of Appeal went on to find that the First Nations had not fulfilled their reciprocal duty to carry out their end of the consultation process to the extent that its members deliberately frustrated the Minister’s attempts to consult:
45 Finally, it is illogical to conclude that DFO failed to conduct adequate consultations with the Cheam because DFO did not approach them on a minor matter, when the trial judge found that the Cheam had failed to respond to repeated requests to meet, consult or respond on the major issues. Significantly, the Cheam failed to communicate their needs in concrete terms in response to DFO's request that they do so. The Cheam did not fulfil their reciprocal obligation to carry out their end of the consultation. To hold that members of a First Nation who deliberately frustrated all of the government's attempts to consult, and thereby failed in its own obligations should receive a remedy for an infringement of its aboriginal right because the government did not approach it on a minor issue goes far beyond what is required to justify DFO's conduct. DFO's duty as described by the Supreme Court of Canada in Sparrow was to uphold the honour of the Crown and conform to the unique contemporary relationship between the Crown and aboriginal peoples. As the trial judge held, "the refusal by the Cheam to meet, to communicate, and to refuse to attend group discussions has direct implications on the assertion the consultation efforts of government are flawed" (at para. 73).
[54] It follows from Haida, supra, that in determining whether the Minister has met his duty to consult, perfect satisfaction is not required. To the extent that the Minister makes reasonable efforts to inform and consult the First Nations which might be affected by the Minister’s intended course of action, this will normally suffice to discharge the duty. As McLauchlin C.J. said at paragraph 39 of her Reasons in Haida, supra:
[39] The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the general scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
[55] In my view, the Minister, in the present matter, took sufficient steps to discharge his duty to consult. His efforts, while not perfect, were reasonable and appropriate in the circumstances. DFO’s commitment to continue to consult with the appellants and make extra lingcod and dogfish quota available as a means to accommodate potential impacts of the Pilot Plan on the appellants’ commercial right to fish shows good faith on its part. Indeed, the appellants do not take the position that DFO acted in bad faith.
[56] I therefore conclude that Blais J. did not make a reviewable error in finding that the Minister had met his duty to consult with the appellants.
DISPOSITION
[57] For these reasons, I would dismiss the appeal with costs.
“M. Nadon”
J.A.
“I agree.
Marc Noël J.A.”
“I agree.
C. Michael Ryer J.A.”


FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-313-07
(APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED MAY 29, 2007 2007 FC 567 (CanLII), (2007 FC 567) IN COURT FILE T-781-06)
STYLE OF CAUSE: THE AHOUSAHT INDIAN BAND et al v. MINISTER OF FISHERIES AND OCEANS.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 23, 2008
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: NOËL J.A.
RYER J.A.
DATED: June 12, 2008
APPEARANCES:
John R. Rich
Maegen M. Giltrow
FOR THE APPELLANTS
Paul F. Partridge
R.S. Whittacker
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ratcliff & Company
Vancouver, B.C.
FOR THE APPELLANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT

__________________________________________
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
The Ahousaht v. Canada (Attorney General),
2008 BCSC 769
Date: 20080613
Docket: S033335
Registry: Vancouver
Between:
The Ahousaht, Ehattesaht, Hesquiaht, Hupacasath, Ka:'yu”k't'h/Che:k'tles7e'h', Mowachaht/Muchalaht Indian Band, Mowachaht/Muchalaht, Nuchatlaht,
Tla-O-Qui-Aht, Tseshaht, and Ucluelet 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
Before: The Honourable Madam Justice Garson
Reasons for Judgment
Ruling on Admissibility of Oral History Evidence Given By
Victoria Christine Wells, a Plaintiff Witness
Counsel for the Plaintiffs:
J.R. Rich
F.M. Kirchner
K.D. Lee
K.M. Blomfield
Counsel for Attorney General of Canada:
M.P. Doherty
J.E. Hoffman
B.C. Marleau
Counsel for Her Majesty The Queen:
J.J.L. Hunter, Q.C.
L.J. Mrozinski
G. van Ert
Date and Place of Hearing:
May 26, 2008
Vancouver, B.C.


[1] This is a mid-trial ruling as to the admissibility of oral history hearsay evidence, given in a voir dire in this case, concerning claims to aboriginal title and rights.
[2] At a case management conference conducted on February 20, 2007, I directed, with the consent of all parties, a procedure to be followed for the hearing of oral history evidence. Insofar as the plaintiffs have (with the consent of all parties) delivered will-say statements for each lay witness, the defendants have thereby received advance notice that a witness’s testimony was anticipated to be based, at least in part, on oral history. The direction I gave as to oral history objections was as follows:
(a) the defendants should state their general objection to the reception of oral history of a particular witness where it was anticipated the witness would testify as to oral history. If appropriate the court would then declare a voir dire for all of that witness’s testimony;
(b) within two days of the testimony the defendant(s) would advise whether they wished to maintain their objection to the admissibility of the oral history and, if so, to which portions of the testimony;
(c) submissions would then be made to the court regarding the admissibility of the oral history at issue as soon as possible after the testimony of the witness, within the trial schedule;
(d) the court’s ruling with respect to oral history would determine if all or parts of the evidence heard on the voir dire was admissible and those portions ruled admissible would become evidence at the trial;
(e) if oral history was deemed inadmissible the plaintiffs would retain the right to recall a witness in order to address the subject matter of the evidence that was excluded and the defendants retained the right to cross-examine on this new testimony.
[3] That procedure has been adopted and used in respect to all the plaintiffs’ lay witnesses. Most, if not all, the plaintiffs’ lay witnesses have testified in a voir dire. In every case, except for the one presently the subject of this mid-trial ruling, the defendants have waived any objection to the admissibility of the oral history.
[4] The defendants object to the admissibility of certain portions of oral history evidence given by the plaintiffs’ witness, Victoria Christine Wells.
[5] The basis of the defendants’ objection is that the majority of Ms. Wells’ evidence about the Ehattesaht traditional territories is a conglomeration of information that she has acquired from a diverse set of sources as well as from her own reading and research. Canada submits that Ms. Wells appears to have assumed a role as in-house researcher for the Ehattesaht: the process she has gone through to educate herself about Ehattesaht culture is not unlike the role assumed by an ethnographer or an anthropologist. The key distinction according to Canada is that, unlike an expert, Ms. Wells is not a disinterested party. Canada’s primary concern is that the court does not have a sufficient basis upon which to assess the reliability of the sources of the hearsay evidence provided by Ms. Wells. As I understand their submissions, the concern arises largely because Ms. Wells could not, in many cases, specify the details of how she received each strand of information that she told the court. She could not always connect the piece of information to the person who told it, the time, place, date, et cetera.
[6] The plaintiffs submit that Canada is seeking to place an impossible burden on the aboriginal witnesses that cannot be reasonably met by anyone. For example, the plaintiffs say “who among us remembers when we learned that Hudson Bay is part of Canada or that Mount Robson is in British Columbia or that the boundary between North and West Vancouver is the Capilano River?”.
[7] In the case of Williams et al. v. British Columbia et al., 2004 BCSC 148 (CanLII), 2004 BCSC 148, Mr. Justice Vickers considered the appropriate procedure for mid-trial objections to the admissibility of oral history evidence. At para. 10 and 11 he cited Mitchell v. M.N.R.,2001 SCC 33 (CanLII), [2001] 1 S.C.R. 911 writing as follows:
[10] Central to the arguments advanced by both defendants are the remarks of McLachlin C.J.C. in Mitchell v. M.N.R., [2001] S.C.R 911, at para. 33, as follows:
The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people’s history? The trial judge need not go so far as to find a special guarantee of reliability. However, inquiries as to the witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted.
In that passage, McLachlin C.J.C. is reminding the reader that there are two dimensions to the issue of reliability. The first is whether the evidence of a particular witness can be relied upon to a sufficient degree to be admitted as evidence at the trial. The second dimension of reliability relates to the weight to be given a witness’s evidence once it has been admitted. She is also saying that “inquiries as to a witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate…”. She is not saying that such inquiries must be held in all cases. There is a discretion that remains with the trial judge in that regard.
[11] In paragraphs 27 and 28 of Mitchell,supra, the Chief Justice said the following:
Aboriginal right claims give rise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records. Recognizing these difficulties, this Court has cautioned that the rights protected under s. 35(1) should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection (Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, at p.408). Thus in Van der Peet, supra, the majority of this Court stated that “a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in” (para. 68).
This guideline applies both to the admissibility of evidence and weighing of aboriginal oral history (Van der Peet, supra; Delgamuukw, supra, at para. 82).
[8] At para. 18 Vickers J. described the factors the court should have regard to when considering the admissibility of oral history evidence as follows:
[18] If a particular event was witnessed by a person or persons and if one or more of these individuals are alive and able to testify at trial, it will be possible to call them as witnesses to testify as to what was seen and heard. If a witness or witnesses cannot be called because of illness, infirmity, distance or death, then a case may be made that hearsay evidence of the particular event, what another person was told by a person who witnessed the event, is necessary. Death of all who saw the event will more than likely make the case for necessity.
[19] Then, still grappling with the question of admissibility the court must decide if the evidence being tendered is reliable enough to be admitted. In that regard the court would want to know:
1) some personal information concerning the witness’s circumstances and ability to recount what others have told him or her;
2) who it was that told the witness about the event or story;
3) the relationship of the witness to the person from whom he or she learned of the event or story;
4) the general reputation of the person from whom the witness learned of the event or story;
5) whether that person witnessed the event or was simply told of it; and,
6) any other matters that might bear on the question of whether the evidence tendered can be relied upon by the trier of fact to make critical findings of fact.
[20] If the court decides that the hearsay evidence is both necessary and reliable then it is admitted. After it is admitted the court must, in reaching its factual conclusions, decide what weight will be given to the evidence. In that regard, it is open to a court to accept the hearsay evidence in whole, in part or not at all.
[9] With those principles in mind I turn to a consideration of the objections to the admissibility of portions of Ms. Wells’evidence.
[10] Ms. Wells is a member of the Ehattesaht First Nation. Her mother was Ehattesaht; her father is non-native. Ms. Wells is 43 years of age. At the moment Ms. Wells lives in Esperanza, within the Ehattesaht territory. Ms. Wells grew up in Vancouver. She took all her schooling in Vancouver, including a year at a community college. In 1986 she moved to Queen’s Cove, in the Ehattesaht traditional territory. She described how she formed close relationships with her grandfather, Moses Smith, as well as other village elders, some of whom she was related to, after she moved to Queen’s Cove. She testified about the development of her keen interest in the history and traditions of the Ehattesaht people, which in turn led her to spend much time with her grandfather and the other elders. From them, she says, she learned much about the locations of traditional villages and the boundaries of traditional territory. This learning process has stretched over a period exceeding 20 years.
[11] Ms. Wells was employed by the Nuu-chah-nulth Tribal Council in their fisheries management program. She became the Band manager for the Ehattesaht Tribe in the 1990s. She was a treaty worker for a period of time, also in the 90s, and was also the band financial controller for a period of time. Although the defendants object to portions of her evidence, they acknowledge that she was a conscientious witness, and, I infer from their submissions, a well-intentioned witness. The objection to her evidence is not a comment on her truthfulness but, rather, an objection as to the reliability for testimonial purposes of the method by which she has educated herself in the Ehattesaht history, culture and traditions.
THE TRADITIONAL TERRITORY OF THE CHIEF OF THE EHATTESHAT, MIKE SAVEY
[12] Ms. Wells testified that Mike Savey is the Ehattesaht Tyee or principal chief at the present time. She also testified that she has learned that Mr. Savey had“access to the whole traditional [Ehattesaht territory]”. She testified:
Q: Did you learn what that territory is?
A: Generally speaking yes.
[13] At p. 36, line 14 she stated that she learned about Mike Savey’s traditional territory “through my uncle Earl and my grandpa Moses.” She was then asked how she learned about the traditional territory and she described her involvement in a mapping project. The mapping project included her grandfather Moses Smith, her uncle Joe Smith and others having discussions about the extent of the Ehattesaht territory. She witnessed and listened to these discussions. Some of the people more directly involved in the discussions than Ms. Wells are living.
[14] At para. 22 of Williams, Mr. Justice Vickers posed the question “How are the defendants to test the admissibility of the evidence if they cannot have some way of challenging its reliability?”. In this case, the witness’s testimony regarding the traditional territory (hahoulthee) of Mike Savey is based in part on her witnessing the mapping project, in part on conversations with her grandfather Moses Smith, and in part on conversations with other elders. In cross-examination on the question of Ehattesaht boundaries she clarified, that her knowledge about the area around Kyuquot Channel and north of Rugged Point was told to her by her grandfather and that her knowledge about an area south of Rugged Point, past Mushroom Point, which include trapping line areas, was told to her by her grandfather Joe. Under cross-examination she again described the mapping process which was part of a traditional use study. She testified that some of the elders (Robert Peter, David Nicolaye, Moses Smith, Joe Smith, and a number of other people) came together to discuss their knowledge of the traditional Ehattesaht boundaries and that her function and role was simply to facilitate the meeting and make sure the paperwork got where it needed to be. Under cross-examination she identified the map that was produced at those discussions.
[15] In my view, the defendants have had an opportunity to challenge the reliability of her evidence on this point. As Mr. Justice Vickers noted at para. 10 of Williams:
There are two dimensions to the issue of reliability. The first is whether the evidence of a particular witness can be relied upon to a sufficient degree to be admitted as evidence at the trial. The second dimension of reliability relates to the weight to be given to the witness’s evidence once it has been admitted.
[16] I conclude that the evidence which Ms. Wells gave concerning Mike Savey’s hahoulthee, or the Ehattesaht traditional territory, is based in part on her witnessing the mapping project and in part from information relayed to her by elders. This evidence meets the first dimension of the reliability test. It is not appropriate to comment as to the appropriate weight to be attributed to this testimony in this ruling. The fact that Mike Savey is alive, and able to testify, does not detract from the admissibility of her evidence about the Ehattesaht traditional territories. Although she referred to the territory in a respectful way as Mike Savey’s hahoulthee, it is in fact the Ehattesaht traditional territory and he is not the only person or necessarily the best person to give that evidence. I anticipate the defendants will make submissions regarding the absence of evidence from Mike Savey, but I consider that in this instance submissions are relevant to the question of weight, not to admissibility. I add that if Mike Savey testified, his testimony would similarly be based on oral history that is based on hearsay.
[17] Ms. Wells testified that within the Ehattesaht there is no formal structure for telling oral history. Ms. Wells did admit that Earl Smith and Chief Mike Savey may have different knowledge of Ehattesaht history than she had, and perhaps more depth of knowledge than she had. In my view this testimony is relevant to weight, not threshold reliability, because much of her information was derived from informers who are now deceased. The fact that some living people contributed to her general knowledge does not, in my view, render inadmissible all her knowledge where she cannot attribute certain knowledge to one particular source (see, in particular, transcript May 29, p. 82, lines 1 to p. 83, line 33).
EVIDENCE CONCERNING THE LOCATION OF TERRITORIES ASSOCIATED WITH VARIOUS LOCAL OR FAMILY GROUPS WITHIN THE EHATTESAHT
[18] The basis of this objection to her testimony concerning the local group territory is that Ms. Wells admitted she learned about, and pulled together, this information from a variety of sources. Objection is taken to the following excerpts of evidence concerning Ehattesaht local groups: p. 52, lines 22 – 47, Tatchuaaht local group; p. 53, lines 1 – 26, Tatchuaaht; p. 54, lines 24 – 47, Achinaht; p. 55, lines 1 – 47; Achinaht and Little Zeballos River; p. 56, lines 1 – 18, Achinaht and Little Zeballos River; p. 58, lines 36 – 47, Klitchya; p. 59, lines 1 – 35, Klitchya; p. 59, line 47, Chenahkint; p. 60, lines 1 – 47, Tilthowlwisaht; and continuing Tilthowlwisaht, p. 61, lines 1 – 36, Tilthowlwisaht. In regards to a village in the vicinity of Park River, objection is taken to: p. 16, lines 1 – 47; p. 17, lines 1 – 5; p. 50, lines 24 – 47 and p. 51, lines 1 – 6.
[19] The defendants argue that Ms. Wells is unable to distinguish who told her what about the various pieces of evidence she related about the Ehattesaht local groups, with the exception of the information she received about the local group Ishsaw. She agreed that it is fair to say she has put all the various pieces of information together over time and that this collection of information formed the basis of her evidence. Without knowing the source of this hearsay evidence the defendants submit that the court is unable to assess its threshold reliability and the plaintiffs have failed to establish a sufficient basis for the admission of the evidence.
[20] Ms. Wells admits that she has read some written sources, such as the ethnographic studies of Drucker, that form part of her general store of knowledge about the territories of the local groups within the Ehattesaht territory. I see this argument as somewhat akin to suggesting that the written sources may have tainted the knowledge gleaned from the oral sources. However, Ms. Wells testified that the written sources that she did see tended to confirm the oral history that she had heard.
[21] I conclude that the burden the defendants would impose on Ms. Wells is too onerous. I find her evidence to be reasonably reliable. The defendants’ arguments are more appropriately focussed on the ultimate reliability or weight of her evidence. Her evidence as to the sources of her knowledge is sufficiently detailed to enable the court to ultimately assess the strength of her evidence.
[22] I am satisfied that her evidence meets the threshold reliability test and should be admitted.
THE CENTRAL VILLAGE OF THE EHATTESAHT CONFEDERACY
[23] The defendants object to Ms. Wells’ evidence about the central village of the Ehattesaht confederacy called Hoke. The testimony objected to is found at p. 31, lines 34 – 43, p. 32, lines 34 – 43.
[24] Ms. Wells testified that she was present when the Ehattesaht community was re-established at Zeballos. She described how the homes were built in Zeballos in a semi-circle. She said those homes were positioned based on giving the same positioning to the same families as had been the case in the previous village Queen’s Cove. She testified that Hoke was the pre-historical central village for the Ehattesaht group of people and she had been told that the housed in Queen’s Cove was set up in the same relative positions as they had been in Hoke. The objection to the evidence at p. 31, lines 34 – 43 is about the subject matter in which she answered that Hoke was the central village of the Ehattesaht confederacy. She testified “so the houses in Queen’s Cove and the houses at Ehattesaht were set up originally in a manner that reflected that history.” At p. 32 she identified the location of the original village of Hoke.
[25] She gave no source for her knowledge of the location of the village of Hoke, but she made it clear that with respect to all her knowledge it came primarily from her grandfather Moses, and secondarily from a conglomeration of others to whom she had listened closely, over a 20-year period. With respect to this particular excerpt of evidence, reliability as to the set up of the village of Hoke is gained from the fact that she was present for the establishment of the Zeballos village site and was present for discussions concerning the arrangement of houses.
[26] Although no time period is given for the habitation for the village of Hoke, I accept that her evidence has some reliability to it and I would admit this evidence.
CONCLUSION
[27] In summary, all the evidence objected to by the defendants on the voir dire of Victoria Wells is admissible. Her evidence will be evidence in the cause and all


exhibits marked on her examination and cross-examination will be exhibits in the cause.
“N. GARSON, J.”
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