• Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 30, Supreme Court of Canada (Leave Application)
  • February 10, 2014
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • The Supreme Court of Canada dismissed the application for leave to appeal from the above noted decision of the British Columbia Court of Appeal, with costs.
    http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/news/en/item/4506/index.do

    The Court summarized this leave application as follows:

    Aboriginal law — Constitutional law — Aboriginal rights — Fishing — Commercial fishing right — Continuity of practice — Whether a Court can declare a constitutionally protected Aboriginal right without first determining whether claimed modern right has reasonable degree of continuity with pre contact practice relied upon to support that right — Whether the Court of Appeal erred in its delineation of the scope of the aboriginal commercial fishing right — Whether the Court of Appeal erred in permitting pre-contact practices of gift-giving, tribute and feasting to support a modern Aboriginal right to sell fish in commercial marketplace — Constitution Act, 1982, s. 35

    The respondents are five B.C. Aboriginal bands who claimed an Aboriginal right to fish on a commercial basis. They claimed that their ancestors fished and traded fish and that these practices were integral aspects of their culture, that the practices have continuity with modern activities, translating them into a modern commercial fishing right, and that Canada’s fisheries regime unjustifiably infringes this right.

    The applicant Attorney General of Canada (“Canada”) opposed these claims on the basis that no Aboriginal right to harvest any fisheries resources or to sell any species on any commercial basis exists. Canada further argued that there had been no infringement of any rights.

    Both the trial and appeal courts granted the respondents an aboriginal right to fish on a commercial basis. In 2012, this Court remanded this case to the British Columbia Court of Appeal to be reconsidered in accordance with Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535. The Court of Appeal upheld its earlier decision. Canada seeks leave to appeal anew.