Canada: B.C. Supreme Court Dismisses Aboriginal Claim For Right To Commercial Fishery Near Prince Rupert

Last Updated: May 13 2008
Article by Brenden Hunter and Kevin O'Callaghan


On April 16, 2008, after a year long trial, Madam Justice Satanove of the B.C. Supreme Court issued her decision in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447, in relation to a claim for an aboriginal commercial fishery on the north coast of British Columbia just north of Prince Rupert. The Court dismissed the plaintiff's declarations on the basis that:

  • the plaintiffs have an existing aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982 to harvest and sell on a commercial scale all species of fisheries resources that they harvest from their claimed territories;

  • the Fisheries Act, R.S.C. 1985, c. F-14 and the Fisheries Act, R.S.B.C. 1996, c. 149 and their respective Regulations infringe upon this aboriginal right; and

  • the Crown has breached their trust-like or fiduciary obligations to the plaintiffs by restricting or denying their ability to harvest fish resources from their claimed territories for commercial purposes.

The Court held that the Lax Kw'alaams failed to demonstrate that trade in fisheries resources took place at a commercial level, and failed to demonstrate that any trade that did take place was integral to their distinctive culture.

The B.C. Supreme Court Ruling

As part of undertaking a Van der Peet aboriginal rights analysis, the Court first recalled the three basic steps to assessing an aboriginal right: (i) identify the nature of the right claimed by the plaintiffs; (ii) establish the pre-contact aboriginal right being protected; and (iii) consider the effect of legislation on the proven, existing aboriginal right.

Under the first step, the Court characterized the nature of the claim as an aboriginal right to harvest and sell the fish resources and products found in their claimed territories on a commercial scale (para. 111). As part of the second step, the Court looked at the date of contact and found the most reasonable to be fixed for the purposes of law in B.C. was 1793 - when Captain Vancouver described meeting the Coast Tsimshian (para. 118).

This case is one of the first to comprehensively consider the oral history "adaawk" of the aboriginal people of this particular area of British Columbia since Delgamuukw. The Court acknowledged that such oral history must be treated with respect and evaluated with the aboriginal perspective in mind, but notwithstanding that, as evidence, it can "run the ambit of cogency from the highly compelling to the highly dubious" and should not be "tasked to carry more weight than it can reasonably support." (para. 40)

The Court then examined whether the claimed aboriginal right was "integral to the distinctive culture" of the plaintiff. It found that the plaintiffs would have to establish the following elements as part of this examination:

  1. the Coast Tsimshian were members of an organized society;

  2. from which the plaintiffs have descended;

  3. who used and occupied the claimed territories;

  4. from which they harvested fish resources and products as an integral part of their distinctive culture;

  5. traded them on a scale akin to commercial as an integral part of their distinctive culture; and

  6. have continued to do so in a contemporary fashion.

After reviewing the evidence in respect of the first element, the Court concluded on a balance of probabilities that the Coast Tsimshian were, in fact, members of an organized society. Although they may not have existed in exactly the same composition as after contact, nor occupied exactly the same territory as their claimed territories, the core of the ten constituent tribes or village groups was found to be there (para. 159). Despite finding that "there was no cohesive, over arching, political regional organization until after the commencement of the fur trade, although there were social bonds and relationships amongst clan members of different villages" (para. 160), the Court went on to hold that the plaintiffs were descendants of the nine tribes collectively known as the Coast Tsimshian (para. 163). The Court held that, as descendants, the plaintiffs "are entitled to claim aboriginal rights arising from the existence and past practises of the nine tribes." (para. 163)

In respect of claimed territories, the Court noted that because the plaintiffs were not attempting to establish aboriginal title, there was no need for them to prove that their claimed territories were or are used and occupied exclusively by them (para. 194).

Relying on the Supreme Court of Canada in R. v. Adams, the Court held that it must focus on, "the specific sites of these activities and recognize that a right to perform a site specific activity does not become an abstract right exercisable anywhere; it continues to be a right to exercise an activity on the tract of land in question."(para. 10(8)(b)) The Court found, on a balance of probabilities, that the plaintiffs established, at the time of contact, they fished in the tributaries of the Skeena River (but not its mainstream) (para. 208) and the Dundas Island group (para. 218), but not in other claimed fishing grounds. The Court was satisfied that the harvesting and consumption of fish resources and products, including a surplus supply for winter consumption, was an integral part of their distinctive culture (paras. 239-259) but reminded the parties that any declaration regarding rights to fish for food, social and ceremonial purposes was not requested.

In respect of trade, the Court found the evidence "overwhelming" that the pre-contact Coast Tsimshian economy was a form of kinship economy, meaning that pre-contact trade was personal and negotiated between kin structured relations on a clan basis of familial relationships (paras. 290, 315). The Court further found that the nature of the trade by the Coast Tsimshian changed dramatically in form and scale as a result of the fur trade, which permeated the beginning of European contact and influence (para. 383).

Furthermore, the Court held that fisheries resources and products were harvested, but only as subsistence goods.

I have concluded that the Coast Tsimshian did trade in prestige goods, such as eulachon or mountain goat grease, before the arrival of the Europeans. Dr. Anderson, however, makes no distinction between trade in subsistence goods and trade in luxury items. In my view, this is a key flaw in her expert opinion. I agree that trading in luxury, exotic, specialized goods such as coppers, slaves, dentalium or grease was integral to potlatch exchange, wealth, rank, etc. and therefore can be said to be integral to the distinctive Coast Tsimshian society. However, little evidence of trade in subsistence goods such as Fish Resources and Products indicates that with respect to these items, such trade that did exist was only occasional and for survival, not commercial purposes. (para 435)

Madam Justice Satinove concluded, "I do not think that selling food during occasional periods of famine fits within the definition of "integral to a distinctive society,"(para. 436).

Additionally, the Court did not find on the evidence before it, that trade in any fish resource or product beside eulachon grease could properly be described as integral to the plaintiffs' distinctive culture:

In particular, I am of the view that the plaintiffs have failed on the second step to prove on a balance of probabilities that their predecessors conducted a trade in Fish Resources and Products, before contact with Europeans, that in any way was "a central and significant part of their society's distinctive culture", or in any way "made [their] society truly what it was" (R. v. Van der Peet). I agree with the defendant's submission that trading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC [food, social and ceremonial] purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society. (para 496)

The Court agreed with the plaintiffs 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 (para. 498). However, the Court did not agree that the ancient trade in eulachon grease (undertaken outside the Lax Kw'alaams territory) transmogrified into a modern right to commercial fishing of salmon, halibut and all other marine and riverine species of fish (para. 499).

As a result of the Court's findings, step three of the aboriginal rights examination - the effect of existing fishing legislation - was not considered. The Court therefore dismissed the plaintiff's claim that they hold an aboriginal right to harvest and sell on a commercial scale.

Because the plaintiff did not establish an aboriginal right to harvest and sell fish resources and products on a commercial scale, the Court determined that there was no cognizable aboriginal interest to which a fiduciary duty could attach (para. 525). On a factual basis, the Court also concluded that the plaintiffs did not establish any dishonourable conduct on the part of the Crown (para. 530).


This case provides some needed guidance on the breadth and extent of claims for aboriginal rights. The Court clarifies that aboriginal rights are site-specific: the right is not an "abstract right exercisable anywhere"; it is tied to the particular site and must be claimed on that basis. Applying this principle, the Court limited the area of application to tributaries of the Skeena River (but not its mainstream) and the Dundas Island group. The Court also clarified that although aboriginal rights are not species specific, that the harvesting of one species in a distinct area for the purposes of commercial trade does not equate to general rights of trade for all species harvested. The Court held that there must be some connection between the two activities: "The rendering of the eulachon into oil was an [sic] 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." Finally, the concluding paragraphs to her judgment, Madam Justice Satinove commented on the public nature of the fishery as follows:

The difficulty with this premise is that the plaintiffs have not established a promise, express or implied, that the Lax Kw'alaams would not be subject to the same limits and restrictions on fishing as other fishers; in fact the opposite has been established. Fish, as a living, moving, dynamic, and variable resource has always belonged to the public at large, and the defendant's administration of the fisheries has always had to take into account the rights of all Canadians to exploit this resource. (para. 529)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.