The B.C. Court of Appeal dismissed the appeal brought by Canada from the order of Madam Justice Garson made in November 2009 following a lengthy trial. The trial judge made an order declaring that the harvest and trade in fish was integral to the pre-Contact culture of the Nuu-chah-nulth, and that these ancestral practices translated into “the right to fish and to sell fish”: 2009 BCSC 1494. In May 2011, the Court of Appeal allowed Canada’s appeal in part, so as to exclude the right to harvest and sell geoduck clams, but otherwise affirmed the findings of the trial judge: 2011 BCCA 237. In March 2012, the Supreme Court of Canada made an order pursuant to s. 43(1.1) of the Supreme Court Act remanding the matter back to the Court of Appeal to be reconsidered in accordance with Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535.

In this remand hearing, heard by the same panel of the Court, the majority again found no basis for disturbing the findings of fact made by the trial judge. The majority also dismissed the argument that the trial judge had misapplied the Van der Peet test by failing to characterize, at the outset of the analysis, the rights being claimed by the plaintiffs.

Decisions available here.

Other Author

Kenneth J. Tyler


Indigenous Law