Lax Kw’alaams Indian Band v Canada: SCC Denies Aboriginal Claim for Commercial Fishing Rights

In November of last year, Justice Binnie, for a unanimous Supreme Court of Canada, denied an appeal brought by the Lax Kw’alaams First Nations, along with other First Nations groups “whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena Rivers” (see Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56). The Lax Kw’alaams’ attempt to establish an Aboriginal right to large-scale commercial fishing activity had already been rejected by British Columbia’s Supreme Court and Court of Appeal, and now the SCC has confirmed the strength of those decisions.

Right off the bat, this case is significant in the sense that it differs from Canada’s seminal Aboriginal rights cases, such as R v Van der Peet, [1996] 2 SCR 507 [Van der Peet], R v Gladstone, [1996] 2 SCR 723, or R v Sappier; R v Gray, [2006] 2 SCR 686. In those cases, it was the prosecution that framed the charge; as such, the “test” that emerged from those cases was specific to the context of regulatory offences. In this case, though, the Lax Kw’alaams are the moving party, so “it lay in its hands to frame the action.” Consequently, despite being unsuccessful, this case will surely inform the structure of any future attempts to establish a modern Aboriginal right.

Who Are They?

The Lax Kw’alaams, it is said, are an ancient fishing people whose way of life—both physical and spiritual, it appears—has long been tied to salmon and to halibut and to eulachon. These then-abundant fish were harvested and consumed, given as gifts at communal feasts, and traded for other luxury goods. The eulachon played a particularly prominent role; these fish were caught in the winter months, smoked, eaten fresh or boiled to extract a sought-after oil that was either traded or used as a preservative for perishable goods. This was all in the so-called “pre-contact” period, of course—although “contact” offers an exceptionally opaque characterization of what happened “around 1793.”  In the 1880s, nearly 100 years after being…well, contacted, the Lax Kw’alaams were “allotted” chunks of land within which they were allowed to live and fish.

What Do They Want?

The Lax Kw’alaams assert that each ancestral coastal tribe was a distinct and complex society, engaged in a “sophisticated economy based predominantly on the harvesting, managing, processing, consuming and trading of all species of fish.” These customs were integral to the distinctive culture of each Aboriginal community prior to contact. In turn, the Lax Kw’alaams are claiming a modern right to harvest and sell fish as a means of pursuing social and economic wealth; indeed, the right to accumulate wealth is the objective around which their entire claim revolves. In terms of the specific relief sought, the trial judge summarized it this way:

[T]he plaintiffs have an existing aboriginal right within the meaning of s. 35(1) of the Constitution Act of 1992 (sic) to harvest and sell on a commercial scale all species of Fisheries Resources that they harvest from their Claimed Territories.

In addition, the Lax Kw’alaams wanted the court to declare that the Government of Canada, in breaking its promise to preserve Aboriginal fishing rights, breached its fiduciary obligations and brought the Honour of the Crown into disrepute.

What Has Happened So Far?

This case was first heard in 2008 by the B.C. Supreme Court, where the trial judge found that, aside from selling the abovementioned eulachon grease, the trading of fish products was far too sporadic to constitute a central element of the society’s distinctive culture. As the trial judge saw it, the Lax Kw’alaams’ argument was too “simplistic” in its attempt to twist an ancient right to trade eulachon grease into a modern right to trade all sorts of fish. In terms of the breach of fiduciary duty argument, the trial judge found on the evidence provided that the Crown did not, at any point, promise to provide the Lax Kw’alaams with commercial fishing rights, exclusive or otherwise. As such, the Lax Kw’alaams’ Honour of the Crown assertion failed not fly.

By and large, the BC Court of Appeal (BCCA) agreed with the trial judge. In dismissing the Lax Kw’alaams’ appeal, the BCCA held that the trial judge was right to distinguish between the pre-contact use of eulachon from that of other species. The key question, as the BCCA frames it, is whether pre-contact eulachon trade represents a natural precursor to modern commercial fishing rights; is the latter a logical evolution of the former?

The answer, according to the BCCA, is no; sure, the Lax Kw’alaams used eulachon grease to generate economic wealth, but the other species, such as halibut or salmon, were really a means of subsistence, not trade. With respect to the Honour of the Crown argument, the BCCA sees no reason to override the trial judge’s determination that the Crown did not promise to confer upon the Lax Kw’alaams any type of preferential commercial fishing rights.

What Does the SCC Think?

The ultimate question, in the words of Binnie J, is whether the ancestral practices of the Lax Kw’alaams First Nations “provide a proper legal springboard to the right to…a modern commercial fishery” protected by s. 35 of the Constitution Act, 1982. The ultimate answer, not surprisingly, is no. In reaching this conclusion, however, the SCC addresses four specific questions raised by the appellants.

(A) Did the trial judge err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices? According to the appellants, the trial judge should have first inquired into the Lax Kw’alaams’ pre-contact customs and way of life before characterizing the claim. Binnie J rejects this “commission of inquiry” model for three reasons. First, it is simply illogical to launch an inquiry with a clearly articulated claim, to send the court on a “voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.”

Second, it neglects jurisprudential authority – in Van der Peet, the SCC made it quite clear that the first step was not to launch an inquiry, but to characterize the claim: “in assessing a claim to an aboriginal right a court must first identify the nature of the right being claimed.” Finally, it disregards the fundamental functions of pleadings, as commonly outlined in the rules of civil procedure—pleadings define the issues at play, set contextual boundaries for trial preparation and establish the scope of disclosure required.

Acknowledging the need for a certain amount of flexibility in these types of cases, Binnie J outlines the four-stage process that a court would be well advised to follow when dealing with an Aboriginal rights claim. Binnie J does not apply this test, per se, but articulates it in an effort to defend the trial judges’ decision to characterize the claim based on the information provided in the pleading, as opposed to the information that may have been uncovered in some sort of court-led inquiry.

  1. Characterize the precise nature of the claim based on the pleadings.
  2. Determine whether the applicants have proven: (a) the existence of the pre-contact practice, and (b) that this practice was integral to the distinctive pre-contact Aboriginal society.
  3. Determine whether the claimed modern right can be reasonably considered to be the continuation of the established pre-contact practice.
  4. If an Aboriginal right to commercial trade is found to exist, courts should consider the words of Chief Justice Lamer in Gladstone: “…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.”

(B) Did the trial judge err in finding that a modern commercial fishery is not a logical evolution of a pre-Contact trade in eulachon grease? (See step three, above.) It is often said that an Aboriginal right must not be frozen in its pre-contact form; it must be given the chance to evolve and to adapt to modern times. That said, Binnie J makes it very clear that the evolution of a pre-contact practice or custom is subject to quantitative and qualitative limits, and cannot be converted into a “different” modern right. In this case, the trial judge acknowledged that the Lax Kw’alaams’ ancestors harvested and consumed a whole range of fish, and while fishing was integral to their distinct culture, the trade of these fish was not. The only sufficiently integral practice was the trade of eulachon grease; the trade of other fish was merely “peripheral.”

Integral or not, the Lax Kw’alaams contend that the sporadic trade of fish is indeed part of their “way of life.” As articulated by the SCC in Van der Peet, however, the distinctive culture threshold test requires the claimants to demonstrate that a practice was more than a part of their way of life; the claimants must show that the practice was “one of the things that truly made the society what it was.”

On the evidence provided at trial, the trial judge found that the sporadic trading of fish did not meet this threshold, and Binnie J agrees. As such, the only ancestral practice at issue here is the trade of eulachon grease, and Binnie J refuses to accept, in a quantitative sense, that a modern commercial fishery can reasonably be considered the continuation of the Lax Kw’alaams’ ancient grease trade. Ultimately, the claim failed to satisfy the integrity and continuity requirements set out in Van der Peet.

(C) Did the trial judge err in refusing to make a declaration in relation to “lesser and included rights?” While it is clear that the Lax Kw’alaams were seeking, as a sort of consolation, a declaration of “lesser” fishing rights, it is not exactly clear what “lesser” even means. In their Second Amended Statement of Claim, the appellants characterized this so-called lesser right as “a right to harvest all species of Fisheries Resources in the Lax Kw’alaams Territory, for the purpose of selling those Fisheries Resources and their products, on a commercial scale, to sustain the Lax Kw’alaams communities accumulate and generate wealth.”

It seems to be a slightly more modest commercial fishing right, but a commercial fishing right nonetheless, so it is only logical that it would suffer the same analytical fate as the primary argument. Having said that, this “lesser rights” argument was rejected at trial because it was introduced at the final stage of submission without providing proper notice to the Crown. Clearly, the SCC sees no reason to interfere with the trial judge’s decision to reject this vague, last-minute argument.

(D) Did the trial judge err in failing to award a commercial fishery licence on the basis of the Honour of the Crown? Essentially, the Lax Kw’alaams believe that the Crown, in expressly allotting them fishing station reserves, implicitly promised them the right to future commercial fishing opportunities. With respect to the fiduciary power of implied promises, the Lax Kw’alaams attempt to draw authority from the case of R v Marshall, [1999] 3 SCR 456, where the SCC held that the wording of a treaty must be interpreted so as to “give meaning and substance to the promises made by the Crown.”

There is no treaty here, though, and the trial judge found no evidence of any promise, express or implied, to confer preferential commercial fishing rights. Consequently, the trial judge found that there was no evidence of an undertaking that would give rise to a fiduciary duty or bring the Honour of the Crown into play. Once again, Binnie J sees no reason to interfere.

Ultimately, Binnie J accords a high level of deference to the trial judge’s findings of fact—the key finding, of course, being that the Lax Kw’alaams’ ancestors “were not a trading people.” Given such a finding, it is not surprising that the SCC was unwilling to grant them a modern commercial right. One wonders, though, whether the SCC’s final decision would have been any different even if the trial judge had found that the Lax Kw’alaams actually were a fish-trading people.

As per the final stage of the test that Binnie J sets out, the court’s ultimate goal is to reconcile the interests of aboriginal societies with those of modern Canadian society. In other words, no matter how legitimate and historic an interest an Aboriginal community might have in harvesting and trading fish products, it is hard to imagine, in this era of environmental regulation, that preferential commercial fishing rights will ever mesh with the interests of Canadian society at large.

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