Cheslatta Fishery: Procedure for Asserting Aboriginal Rights Clarified

The Cheslatta Carrier Nation recently sought a declaration that they have a right to carry out the Cheslatta Fishery, which they defined in their Statement of Claim as including the right to fish for a number of species. They claimed this fishery amounted to a practice integral to the distinctive culture of the ancestors of the Cheslatta and a practice integral to the distinctive culture of the Cheslatta today. They also sought a declaration that the Cheslatta have an existing Aboriginal right to carry out the Cheslatta Fishery (Cheslatta Carrier Nation v. British Columbia (2000), B.C.J. No. 2030 (B.C.C.A.)).

British Columbia and Canada sought dismissal of the action on the basis that no infringement of the right was alleged. The Chambers judge held that the pleadings as they stood could be struck, but gave the Cheslatta Carrier Nation time to amend the pleadings. Canada and British Columbia agreed to an extension of the period to amend pending the resolution of the following question by the British Columbia Court of Appeal: Can a proceeding in the absence of an allegation of infringement or threatened infringement of a legal right go ahead?

The issue was raised because of the way governments respond to Aboriginal Claims, and in particular the difficulty in obtaining pre-trial relief, such as interim injunctive relief, where there is as yet no declaration of a right.

Newbury J.A. of the British Columbia Court of Appeal decided that despite the tactical advantage that may arise from a declaration of a general aboriginal right, modern Canadian jurisprudence dictates that declaratory actions should not be entertained where the declaration will serve little or no practical purpose or raises a matter of only hypothetical interest. As the pleadings did not allege any violation of or threat to the assumed right of the Cheslatta to fish in the specified lakes, the Court concluded that a general declaration of Aboriginal rights would serve no real legal purpose in terms of resolving any real difficulty, present or threatened.

The Court went on to conclude that Aboriginal rights cannot be defined separately from a limitation of those rights, and that the Aboriginal right to fish may be subject to infringement or restriction by government, where it is justified. The definition of the circumstances in which infringement is justified was found to be an important part of the process of defining the right itself. The Cheslatta Carrier Nation's appeal was thus dismissed.

Newbury J.A. addressed the Cheslatta Carrier Nation's concern that the existence of Aboriginal rights is not being given due consideration by the Crown. She concluded that if the British Columbia consultation guidelines, which require government officials to deal in good faith in addressing Aboriginal concerns relating to infringement, are being complied with, this concern is unfounded. If the guidelines are not being complied with, this issue should be raised in a specific case. She went on to say that at the very least, rules of procedural fairness could be invoked.

These comments are of substantial importance. The Province has taken the position that it has no legal obligation to consult until aboriginal rights have been established. Newbury J.A.'s decision points to the Province's legal obligation to at least comply with its own consultation guidelines. The Court leaves open the ongoing debate as to whether the Crown owes a constitutional and fiduciary obligation to consult prior to the establishment of an aboriginal right.