Canada: Aboriginal Law @ Gowlings, December 14, 2011

Last Updated: December 22 2011

Edited by Maxime Faille

Supreme Court Of Canada Dismisses B.C. First Nation's Claim to Commercial Fishing

Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56


On November 10, 2011, the Supreme Court of Canada (the "Court") unanimously dismissed an appeal made by Lax Kw'alaams and other First Nations ("Lax Kw'alaams") from the B.C. Court of Appeal.

The Lax Kw'alaams, whose ancestral lands are located between the estuaries of the Nass and lower Skeena Rivers in British Columbia, claimed a right to commercial harvesting and sale of "all species of fish" within their traditional waters. The Lax Kw'alaams also claimed that the Honour of the Crown was engaged and a Crown fiduciary duty arose in this respect, flowing from promises they asserted were made by the Crown during the reserve allocation process in the 1870s and 1880s. Further, near the end of the trial, the Lax Kw'alaams raised a new claim to other "lesser" Aboriginal rights, including the right to sufficient fish, and a right to food, social and ceremonial fishery.  The claims of the Lax Kw'alaams were previously dismissed at trial by the B.C. Supreme Court and by a unanimous panel at the B.C. Court of Appeal.


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?

The Lax Kw'alaams argued that a court must first inquire into and make findings about the pre-contact practices and way of life of the claimant group before characterizing a claimed Aboriginal right. The Court rejected such a "commission of inquiry" approach as being illogical, contrary to authority, and defying relevant rules of civil procedure.  Instead, the Court set out the steps a court must follow when dealing with a plaintiff seeking a declaration that an Aboriginal right exists pursuant to s. 35(1) of the Constitution Act, 1982.  The steps are as follows:

a. Identifying the precise nature of the First Nation's claim to an Aboriginal right based on the pleadings;

b. Determining whether the First Nation claimant has proven:

  1. the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and
  2. that this practice was integral to the distinctive pre-contact Aboriginal society.

c. Determining whether the claimed modern right has a reasonable degree of continuity with the "integral" pre-contact practice;

d. Where an Aboriginal right to trade commercially is found to exist, it should be delineated having regard to relevant objectives where "[...] 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" (citing R. v. Gladstone, [1996] 2 S.C.R. 723).

Following this approach, the Court concluded the trial judge had correctly characterized the claim and rejected this ground of appeal.

2. Did the courts below err in isolating a specific distinctive ancestral practice (trading in eulachon grease) "as a practice of its own" rather than focusing more comprehensively on a "fishing way of life"?

While the Court recognized that an Aboriginal right is not "frozen in time" at contact and the subject matter and the method of its exercise may evolve, depending on the facts, the Court held that such evolution must occur within qualitative and quantitative boundaries and therefore cannot correspond to a completely different modern right.

Consequently, the Court upheld the decision of the trial judge, who held that allowing the claim to a general commercial fishery right would create a qualitatively and quantitatively different right, readily distinguished from pre-contact trade only in eulachon grease.  In the Court's opinion, such a modern right would be qualitatively different because only the species specific trade in eulachon grease was integral to the distinctive culture of the pre-contact society, and quantitatively different because of the short length of the euchalon harvesting season and the grease extraction method, relative to overall pre-contact fishing activities.   In reaching this conclusion, the Court re-affirmed the "integral to a distinctive culture" test established in R. v. Van der Peet, [1996] 2 S.C.R. 507, which requires a claimant to demonstrate that an alleged practice, custom or tradition was a central and significant part of an Aboriginal society's unique culture and has a reasonable degree of continuity into the present.  In the Court's view, since the Lax Kw'alaams were unable to meet this test, this ground of appeal also failed.

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 B.C. Court of Appeal dismissed this argument on the basis that it couldn't be shown that "the trial judge erred in law or exercised her discretion on a wrong principle." The Court also declined to interfere with the trial judge's decision on the basis that arguments concerning such "lesser rights" were introduced at the stage of final submissions, without proper notice to the Crown.

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 Court held that the trial judge rightly concluded, on the facts available, that no express or implied promise was made by the Crown when the Lax Kw'alaams were allocated their reserves.  Consequently, no fiduciary duty arose and the Honour of the Crown was also not engaged.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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