The Supreme Court of Canada has returned the Court of Appeal’s economic fisheries decision in Ahousaht v. Canada to the Court of Appeal for consideration in light of the Supreme Court of Canada’s decision in Lax Kw’alaams v. Canada. This is likely very good news for the Ahousaht and other nations involved in this case as it indicates the Supreme Court of Canada saw no new issue in that decision that merited a hearing. Given that the Supreme Court of Canada upheld the Court of Appeal’s earlier decision in Lax and essentially left the law on aboriginal rights unaltered, it seems unlikely that the Court of Appeal is going to upset the decision in Ahousaht which was decided after Lax and applied the same principles.

Fundamentally the Supreme Court of Canada decision as well as the earlier Court of Appeal decisions in both Lax Kw’alaams and Ahousaht highlighted the importance of the findings of fact made by a trial judge following a lengthy and detailed hearing. In Lax this implied deference to the factual finding that there was insufficient evidence to establish the existence of the right; in Ahousaht it implied deference to the finding that there was a right. It is difficult to see where this may change in the context of a remand to the Court of Appeal.

The interesting aspect of any remand decision will be to watch how the Court of Appeal will address the proposition that has been advanced that the Lax Kw’alaams decision requires trial courts to incorporate decisions concerning the rights of non-aboriginal persons into the process of defining the rights. Undoubtedly this will be the centrepiece of the Crown’s arguments at the reconsideration hearing and this decision will give us the first real guidance on whether this is a new direction in aboriginal rights law.

In the meantime the decision stands and the Department of Fisheries and Oceans remains paralyzed.