Fishing fight shows courts can’t do politicians’ job

A B.C. Supreme Court decision on First Nations’ claims to commercial fishing entitlements pulls back the curtain on the chaos (and incredible cost!) of the legal system’s attempts to define “Aboriginal rights.”

After 15 years of litigation, the ruling is only one of many in a case that has been to the Court of Appeal twice and to the Supreme Court of Canada. A timely decision and common sense left the building a long time ago.

So much time had passed, even from the first judgment, that much of the evidence heard before Justice Nicole Garson had to be re-called. Since elevated to the Court of Appeal, she presided over a marathon trial that lasted 120 days from 2006 till 2009.

This latest stage commenced in March 2015 and continued for about 150 days, including six weeks of submissions and more than 1,000 pages of argument that only confirmed the entire exercise had painted the court into a corner.

“One of the few things that Canada, the plaintiffs, and the interveners agree upon is that the form of order entered pursuant to the reconsideration decision of the Court of Appeal, insofar as it purports to affirm as final the declaration of the right made by Garson J., is at odds with the content of the court’s reasons,” acknowledged Justice Mary Humphries in her recent decision.

She wrote 135,000 words — 400-odd pages — explaining the mess created by a confusion of judgments and the shifting interpretations of rights.

Humphries noted “language has been used somewhat imprecisely in many of the decisions. Care has not always been taken with phrases such as ‘the claimed right,’ ‘the scope of the right,’ ‘the exercise of the right,’ ‘the defined right.’ ‘Declare,’ ‘delineate,’ and ‘define’ have all been used to describe a process of articulating a right.”

In the end, she conceded no one actually knew what Garson intended, and the appeal court will probably have to weigh in again — after screwing it up last time.

The litigation initially involved 11 bands but was pared down to five — Ahousaht (2,083 members), Ehattesaht (462), Hesquiaht (722), Mowachaht/Muchalaht (603), Tla-o-qui-aht (1,074) — of the 14 Nuu-chah-nulth First Nations.

“I note that many members of the plaintiff nations do not live on the reserves; according to Indigenous and Northern Affairs Canada’s 2014 population statistics, of the 4,944 members, 3,198 members live off reserve, and 1,746 members live on reserve,” Humphries said.

Garson declared the five bands had a right “to fish for any species of fish … and sell that fish” — more than they asked for in their pleadings and prayer for relief.

Humphries pointed out some species such as geoduck have been harvested only since the invention of modern equipment, oysters weren’t commercial until the mid-1800s, and there was no evidence First Nations even fished for prawns or sablefish.

Garson also declared that the federal management scheme was a prima facie infringement of that right and told the parties to negotiate a new fishery. They failed.

Ottawa appealed the decision and its appeal was dismissed in 2011, so it appealed to the Supreme Court of Canada.

Meanwhile, Lax Kw’alaams Indian Band v. Canada, a near identical case, was decided on the basis that a mainland First Nation had an Aboriginal right to a commercial fishery, but only in eulachon, which was historically used in trade. That ruling was upheld on appeal and confirmed by the Supreme Court of Canada.

When this case reached the Supreme Court of Canada, it was remanded back to the Court of Appeal in 2012 with the direction that it be reconsidered in accordance with the Lax Kw’alaams decision. But in its reconsideration, the Court of Appeal reaffirmed its 2011 order without making needed changes, and so the decision was “not entirely consistent with the decision in Lax Kw’alaams.” Humphries said that caused confusion atop the opacity of Garson’s ruling.

Regardless, the First Nations over the years were emboldened into inflating their demands from a so-called “mosquito fleet” — small boats engaged in an “artisanal” pursuit — into a troller-based fishery: participation in the commercial market even in species they never fished. The area under claim, though, a narrow strip — 260 kilometres long as the crow flies — on the mid-west coast of Vancouver Island, is too tiny to support a large fishery.

“In my view,” Humphries said, “the only conclusion to be drawn from Garson J.’s reasons as a whole, despite the lack of parameters in the declaration, is that the declared right to fish for any species and to sell that fish is to be interpreted as a small-scale, artisanal, local, multi-species fishery, to be conducted in a nine-mile (14.5-km) strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.”

Even that small-scale fishery is likely a fantasy — that lifestyle vanished with the collapse of the salmon, contemporary equipment, low fish prices, the end of local buying, environmental changes, international treaties and conservation imperatives.

Humphries found while the management regime infringed First Nations’ rights, in some cases, such as the salmon allocation, the constraint was justified.

Still, the litigation exemplifies how by failing to sign treaties with First Nations and resolve outstanding claims, the federal government has foisted on the courts issues they are illequipped to resolve.

“It must be kept in mind that the court cannot make political decisions or design a fishery,” Humphries emphasized. “Nor is this a mediation where the court can work with the parties to reach a satisfactory arrangement, helping the parties to agree on one or another of their respective approaches. It is not an arbitration where the parties have agreed that the court can set allocations.”