Ahousaht Indian Band And Nation v. Canada (Attorney General), 2013 BCCA 30, Supreme Court Of Canada (Leave Application)

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. Decision available here.

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.

Decision available here.

FACTS

Moulton Contracting Ltd. v. British Columbia, 2013 BCSC 2348, BC Supreme Court, (Saunders J), 23 December 2013

The British Columbia Supreme Court found the Province of British Columbia (the "Province") liable for $1.75 million in damages to a small logging firm for failure to disclose to the firm that a member of a First Nation was dissatisfied with the consultation that the Province had conducted.

Moulton Contracting Ltd. ("Moulton") was a small logging company operating in north eastern British Columbia. On 27 June 2006, it entered into two Timber Sale Licences ("TSLs") with the Ministry of Forests ("MoF") to harvest timber in certain cut blocks (the "Cut Blocks") near Fort Nelson, British Columbia. MoF had issued the TSLs pursuant to a 2004 amendment to its Forest Development Plan for the region (the "Amendment"). MoF officials had consulted with the Fort Nelson First Nation ("FNFN") concerning the Amendment, and had reported that tentative agreement had been reached concerning the FNFN's concerns. The Amendment was subsequently approved, although the FNFN was not informed of the approval for some time.

The FNFN had been unhappy with the Province's consultation efforts in relation to forestry for some time. Prior to the Amendment, the Treaty 8 First Nations, of which FNFN was one, had put forward a written policy covering all aspects of consultation for treaty and Aboriginal rights. This policy was reviewed, but not endorsed or adopted by MoF. To express dissatisfaction with MoF's consultation practices, members of the FNFN had issued a unilateral moratorium on logging in their traditional lands.

With respect to the Amendment, the FNFN had expressed dissatisfaction with MoF's consultation on a number of grounds. The Band stated that it had insufficient technical capacity to evaluate MoF's proposals; and that the Province was not providing capacity funding to allow them to acquire that expertise and deal with the large volume of consultations they were required to engage in. The FNFN also complained about unreasonably short and inflexible deadlines, and insufficient attempts to understand its concerns. The FNFN requested MoF to delay the Amendment and stop timber harvesting until cultural and habitat impacts were assessed. MoF informed the FNFN that until site-specific impacts were identified, harvesting would proceed. The MoF and the FNFN also disagreed on whether there was a requirement to consult about individual TSLs in addition to the Amendment.

Attempting to respond to some of the FNFN's concerns, MoF arranged a helicopter tour of the proposed logging areas by trapper members of the First Nation, and agreed to provide Archaeological Impact Assessments ("AIAs") for two areas related to the Amendment. It did not agree to a habitat impact assessment, because such assessments were the responsibility of the Ministry of Water, Land and Air Protection, which was no longer responding to MoF's Forest Development Plan referrals. Despite written confirmation that the AIAs would be conducted, MoF approved the Amendment prior to completion of the AIAs and without documenting all of the FNFN's concerns in the consultation record. However, the FNFN did not attempt to challenge either the Amendment or the TSLs in the Courts.

The day following the granting of the TSLs to Moulton, the MoF wrote to George Behn, a member of the FNFN who held a licenced trapline in the area including the Cut Blocks, to inform him that logging would soon commence, and advising him to contact Moulton directly in order to avoid any damage that might otherwise be done to his traps and caches. Behn did not respond directly, but the FNFN wrote to MoF on 6 July 2006 with a letter asserting that consultation had been insufficient. On 17 July 2006, Jason Smith, a staff member of British Columbia Timber Sales ("BCTS"), the branch of the MoF responsible for issuing TSLs, again wrote to Behn, reminding him that he should contact Moulton before logging commenced on or about 1 August of that year. This letter, for the first time, attached maps showing the Cut Blocks' boundaries, but did not provide details about other previous forestry activity, the trap lines, culturally significant sites or hunting or trapping activities.

Behn did not contact...

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