Lax Kw’alaams Indian Band v. Canada (Attorney General)

In Aboriginal Rights/Defences, Fish Cases on (Updated )

This case involved a claim by a group of Coast Tsimshian First Nations located near Prince Rupert, B.C.) for a declaration of entitlement to harvest all species of fish, shellfish and aquatic plants in their tribal territories and sell them on a commercial scale. The trial and related proceeding took 125 days resulting in a trial judgement that was released in 2008. In the trial judgment, the Court reviewed the historical evidence and expert interpretations thereof and concluded that:

[T]rading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society.

. . .

I agree that an aboriginal right, once proven, is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the aboriginal right is based.

However, the plaintiffs’ simplistic position that the ancient trade in eulachon grease has transmogrified to a modern day right to commercial fishing of salmon, halibut and all other marine and riverine species of fish, ignores the fundamental fact that the Coast Tsimshian fished for sustenance, not for trade. The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.

[As quoted from para. 30 of BCCA decision]

As a result of this conclusion, the case was dismissed by the trial Court.

Upon Appeal, to the British Columbia Court of Appeal (link), the decision of the trial court was upheld.

The case was further appealed to the Supreme Court of Canada on four different issues.

1) Did the courts below err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices ?

With respect to this issue, the Court rejected the "commission of inquiry" or "flying dutchman" approach advocated by the appellants because it is illogical,contrary to authority and contrary to the rules of civil procedure. However, the Court did state that if necessary, amendments to pleadings should be sought at trial. The court then set out a four part test with respect to characterization of the claim and establishment of an aboriginal fishing right based upon that characterization as follows:

First, at the characterization stage, identify the precise nature of the First Nation’s claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, refine the characterization of the right claimed on terms that are fair to all parties.
Second, determine whether the First Nation has proved, based on the evidence adduced at trial: (a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and (b) that this practice was integral to the distinctive pre-contact Aboriginal society.
Third, determine whether the claimed modern right has a reasonable degree of continuity with the “integral” pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.
Fourth, and finally, in the event that an Aboriginal right to trade commercially is found to exist, the court, when delineating such a right should have regard to what was said by Chief Justice Lamer in Gladstone (albeit in the context of a Sparrow justification), as follows: Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment. [Emphasis in the original; para. 75.]

2) Did the courts below err in isolating the ancestral practice of trading in eulachon grease “as a practice of its own” rather than focusing more comprehensively on the Coast Tsimshian “fishing way of life”?

While analyzing this issue, the Court noted that aboriginal rights continue to evolve from the time of first contact in terms of both subject matter and method of exercise. With respect to method of exercise, courts have repeatedly recognized that fishing methods continue to evolve. However in terms of subject matter, the situation is more complex. In this regard, the Court adopted a quote from Marshall (2005) stating that "Aboriginal practice cannot be transformed into a different modern right" Notwithstanding the reference in Sappier to pre-contact "way of life", this does not replace the distinctive culture test set out in Van der Peet. The trial judge did not find sufficient trade, other that trade in eulachon grease, that was integral to the distinctive culture of the Plaintiffs.

With respect to the "species specific" debate, this will depend upon the facts of each case. In the absence of compelling reasons, the Court would not be inclined to freeze an aboriginal group’s permissible catch to what it caught at the time of contact. However in the case of the Plaintiff’s claim, the declaration granted by the trial court with respect the eulachon fishery was an exception to the general finding of the court that they had no aboriginal commercial rights.

The Court upheld the trial court’s finding that the "transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be ‘evolution’ but the creation of a different right" (para. 59). In particulary, the court adopted the following wording of the trial court as modified by use of the words "provides a sufficient historical bais for":

In my opinion, it would be stretching the concept of an evolved Aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease provides a historical basis for a modern right to fish commercially all species in their Claimed Territories. (para. 30). [emphasis added]

3) Did the courts below err by refusing to consider whether the appellants had established a “lesser” right to fish on a “moderate” scale “to sell to others in order to acquire money, goods or services to sustain [their] communities” or to an Aboriginal right to fish for food, social and ceremonial purposes?

The trial court’s conclusion that trade in fish apart from eulachon grease was not integral to the Coastal Tsimshian pre-contact society was as fatal to the lesser commercial claim as it was to the greater commercial claim. In any event, since neither party led evidence regarding a pre-contact practice of "sustaining the community" through trade and since the matter was not raised until final argument it would be unfair to allow a new claim to be added at such a late stage.

4) Did the courts below err in dismissing the claim based on the Honour of the Crown by concluding that, in the allotment of fishing station reserves, the Crown did not expressly or impliedly promise the Lax Kw’alaams a preferential fishery?

The trial court found no express promise to any preferential access. The finding of an implied promise on R. v. Marshal (No. 1), was distinguishable because the implied promise was based upon the wording of a treaty. As result the decision of the trial court was upheld.