On November 10, 2011 a unanimous seven member panel of the Supreme Court of Canada (SCC) released its reasons in Lax Kw'alaams Indian Band v. Canada (A.G.).1 The SCC dismissed the Lax Kw'alaams' appeal and upheld the judgements of British Columbia's Supreme Court2 and Court of Appeal3 and held that the Lax Kw'alaams do not possess an aboriginal right to engage in a commercial fishery of all species of fish. In affirming the lowers courts' decisions, the SCC made a number of important comments regarding Aboriginal rights' litigation generally and the balancing of broader societal interests when dealing with claims of Aboriginal rights.
The appeal involved a claim by the Lax Kw'alaams and other First Nations to an Aboriginal right to the commercial harvesting and sale of all species of fish and that the Crown had a fiduciary duty in that respect flowing from promises made in the reserve allocation process in the late 1800s. The Lax Kw'alaams also claimed what they described as a "lesser" Aboriginal right to engage in a more limited commercial fishery which would allow them to develop and maintain a sustainable economy. The trial judge and the Court of Appeal dismissed the Lax Kw'alaams' claims in their entirety. The SCC upheld these decisions and dismissed the appeal.
Binnie J. wrote the reasons for the SCC and began his reasons by providing an overview of the case and the SCC's views on the matters before it. He confirmed the trial court's conclusion that the Lax Kw'alaams did not engage in any significant trade in fish or fish products except for the grease derived from a smelt-like species called eulachon, which were harvested for a few weeks every spring from the Nass River.4 Binnie J. noted that, although Aboriginal rights are not frozen in time, a very limited trade in eulachon grease does not translate into broad commercial fishery right: "The Lax Kw'alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) of changing times. However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right."5 As a result, Binnie J. stated that because the larger case could not be made, so too the "lesser commercial right" also failed.6
The Lax Kw'alaams belatedly sought a declaration of a right to a fishery for food, social and ceremonial purposes. Binnie J. noted that the Lax Kw'alaams currently held federal fisheries licences to fish for food, social and ceremonial purposes and that their entitlement to such licenses was not a contentious issue or of significance to the present litigation. As a result, the SCC determined that it was within the discretion of the trial judge to refuse to make any such declaration in the result.7
Interestingly, Binnie J. made some significant comments regarding the importance of Aboriginal-related litigation:
The SCC also rejected the argument advanced by the Lax Kw'alaams that, rather than confine itself to the pleadings, a court must first inquire and make findings about the pre-contact practices and way of life of the claimant First Nation. Binnie J. characterized this approach as a "commission of inquiry"9 and stated that to adopt such an approach would be illogical: "The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight."10 The SCC also rejected this approach because it was contrary to authority11 and defies the rules of civil procedure by not giving adequate or fair notice or description of the issues to be tried.12
The SCC once again urged for the negotiation of Aboriginal and treaty claims.13 However, if litigation is necessary, such complex issues are better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings as such process do not have the procedural advantages afforded by the civil rules of practice required to facilitate a full hearing of the issues and ensure the public interest is served.14 Binnie J. noted that such advantages are compromised by the commission of inquiry approach described by the Lax Kw'alaams.15
In R. v. Sappier,16 the SCC implied that Aboriginal peoples did not have to prove each ancestral Aboriginal practice as long as they proved their "way of life" at the time of contact from which could be inferred a number of ancestral practices. In doing so, the SCC appeared to depart from the majority decision in R. v. Van der Peet17 which established that an Aboriginal right is one element of a practice, custom or tradition that is integral to the distinctive pre-contact culture of an Aboriginal group.18 In the present decision, the SCC clarifies that the evidence of the way of life does not constitute an exception to the importance of situating it within the distinctive culture of the particular Aboriginal group,19 thereby confirming that Sappier does not depart from Van der Peet regarding the elements required to establish an Aboriginal right.
Binnie J. set out the test for dealing with a section 35 claim of rights:20
- the court first needs to characterize the right being claimed, and this could inform a refinement of the claimed right on terms that are fair to all parties;
- the First Nation must prove, based on the evidence adduced, the existence of a pre-contact practice, tradition, or custom advanced in its pleadings to support the asserted right, and that this practice was integral to the distinctive pre-contact Aboriginal society;
- determine whether the modern right has a reasonable degree of continuity with the integral pre-contact custom or practice - the court should take a "generous though realistic" approach to matching pre-contact practices to a claimed modern right; and
- finally, in the event that an Aboriginal right to trade commercially is found, the rights of non-Aboriginal Canadians should also be considered, including economic and regional fairness and the industry or resource by non-Aboriginal persons, among others.
As for the evolution of an Aboriginal right from pre-contact society to modern times, Binnie J. noted that Aboriginal rights must be permitted to evolve, but such evolution has limits that are both quantitative and qualitative, and provided the following interesting examples:
The decision provides yet another example, like so many decisions before it, of the SCC emphasizing the importance on balancing Aboriginal and treaty rights with the rights of other Canadians. This is exemplified in this decision by the SCC's comment that Aboriginal law's fundamental objective is to reconcile the interests of Canada's Aboriginal and non-Aboriginal communities and that Aboriginal litigation is not only of interest to Aboriginal peoples but to non-Aboriginal peoples and businesses as well. This theme then takes root in Binnie J.'s restating of the test for dealing with Section 35 rights by including, in the fourth component noted above, that when commercial Aboriginal rights are at issue, factors dealing with the rights of non-Aboriginal Canadians, including regional and economic fairness, need to be considered.
The decision is also another example of the SCC appropriately deferring to the trial judges review of the initial evidence presented and holding Aboriginal claimants within the boundaries of normal civil procedure which Binnie J. described as being flexible enough in the context of Aboriginal claims.
Binnie J.'s comments on the limits to the evolution of pre-contact Aboriginal rights to modern Aboriginal rights is significant particularly with respect to the examples he provided regarding the gathering of natural gas and deep shaft mining. While these were simply examples that Binnie J. provided with respect to the core legal point that the evolution of a right cannot be limitless, they provide further insight into the SCC's thinking of the appropriate balance between Aboriginal and treaty rights on the one hand and economic and broader societal interests on the other.
What appears to flow from this and earlier decisions is that Aboriginal peoples will be held to a reasonable standard in respect of their pleadings, the evidence presented and the reasonableness of the purported or asserted right. This reasonable burden on Aboriginal peoples extends also to the requirement of Aboriginal peoples in litigation to clearly state their case and frame the rights the scope of the rights being claimed, thereby not engaging in an endless inquiry as to what rights ought to flow from their traditional activities. Binnie J. captured this by stating that a trial on these matters ought not to look like a voyage on the Flying Dutchman.
1 2011 SCC 56.
2 2008 BCSC 447.
3 2009 BCCA 593.
4 Supra, note 1 at paras. 6, 7, 62.
5 Ibid., para. 8.
6 Ibid., para. 10.
7 Ibid., para. 14
8 Ibid, para. 12.
9 Ibid, para. 40.
10 Ibid., para. 41.
11 Ibid., para. 42, citing R. v. Van der Peet,  2 S.C.R. 507, para. 51.
12 Ibid., paras. 43 – 45.
13 Ibid, para. 11.
14 Ibid, para. 11.
15 Ibid, para. 11.
16  2 S.C.R. 686.
17  2 S.C.R. 507.
18 Ibid, para. 46.
19 Supra, note 1 at para. 54.
20 Ibid, para. 46.
21 Ibid, para. 51.
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