Guest blogger Ara Basmadjian on Aboriginal rights

Thursday, December 22, 2011

“Lax Kw’alaams Indian Band v. Canada (Attorney General): Supreme Court of Canada Denies Aboriginal Right to Commercial Fishing”

Although section 35(1) of the Constitution Act, 1982 “recognized and affirmed” aboriginal and treaty rights in Canada, the Supreme Court has not been particularly forthcoming in understanding the unique challenges faced by First Nations litigants and the lawyers who represent them.[1] In Lax Kw’alaams Indian Band v. Canada (Attorney General)[2] (“Lax Kw’alaams Indian Band”), the high court unanimously dismissed the Lax Kw’alaams’ claim of an aboriginal right to harvest and sell “all species of fish” on a commercial basis within their ancestral territories along the coast of British Columbia.[3] The Supreme Court’s recent decision underscores the highly factual character of aboriginal rights claims and provides some instruction on the modern expression of historical practices.

Prior to contact with Europeans around 1793, the Lax Kw’alaams First Nation harvested salmon, halibut, herring spawn, seaweed, shellfish, and eulachon in the northwest waters of what is now coastal British Columbia. The eulachon, or candlefish, were central to the Lax Kw’alaams’ life-way and served as the basis of their subsistence economy. The fish were harvested in late winter and often boiled into grease that could be used to preserve perishable foodstuffs. Eulachon grease was also bartered among indigenous peoples for other goods and resources.[4] In the late nineteenth century, the British Crown provided the Lax Kw’alaams with reserves and fishing sites within their ancestral grounds. In 2002, the Lax Kw’alaams sought judicial recognition of an aboriginal right to preferential access to the commercial fishery in their homelands.[5]

At trial, the court was not persuaded that the Lax Kw’alaams had engaged in any significant trade in natural resources which constituted an integral aspect of their distinctive culture. The importance of eulachon grease to the Lax Kw’alaams’ civilization did not provide a sound historical basis for a modern right to commercial resources.[6] The British Columbia Court of Appeal confirmed the trial judge’s decision that trading in fish resources was largely limited to a particular species and did not evolve into a general right to commercial fishing.[7]

The Lax Kw’alaams First Nation advanced four arguments before the Supreme Court of Canada: (1) the lower courts effectively reversed the proper inquiry by characterizing the aboriginal rights claim before examining the relevant evidence and historical practices; (2) trade in eulachon grease should not be considered an isolated practice but rather part of the Lax Kw’alaams’ broader culture; (3) in the event that the Lax Kw’alaams fail to establish a commercial fishing right, then the court should consider fishing rights on a more modest scale; and (4) the Honour of the Crown necessarily engaged preferential access to the fishery during the allotment of reserves and fishing sites in the 1880s.[8]

Justice Binnie, for the Court, rejected the Lax Kw’alaams’ characterization of the approach to establishing an aboriginal right. The statement of claim is the logical starting point and contextualizes the evidence that is to follow. The Lax Kw’alaams, according to Justice Binnie, were asking for a “commission of inquiry,” which is not appropriate in civil litigation.[9] As Justice Binnie suggests, “[t]he 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 Lax Kw’alaams’ approach to aboriginal rights was also contrary to established authority in the Supreme Court’s seminal decision in R. v. Van der Peet.[11] Furthermore, the rules of civil procedure stipulate that pleadings, at the outset, provide the opposing party with fair notice of the parameters of the case.[12] Yet, Justice Binnie’s reasons tend to obscure the notion that aboriginal rights claims serve a measure of reconciliation between the Crown and First Nations people. Perhaps the adversarial nature of civil litigation is inappropriate in the context of aboriginal rights claims and should be tempered in order to promote collaboration in which the courts play a more inquisitive role.

Aboriginal rights claims are based primarily on the facts. The courts have stablished that aboriginal rights are not frozen in time but are permitted to evolve in accordance with both “quantitative and qualitative” limits.[13] Indeed, the modern expression of an aboriginal right must contain sufficient continuity with a distinctive pre-contact practice. Justice Binnie placed great emphasis on the trial judge’s findings of fact. Although the Lax Kw’alaams’ harvest and trade of eulachon grease was “an integral part of their distinctive culture,” their ancestral life-ways did not include significant trade in other fish products generally.[14] In short, the right to a commercial fishery would constitute a qualitatively different activity from the Lax Kw’alaams’ “species specific” practice.[15] Moreover, the right to harvest fish on a commercial scale would be quantitatively disproportionate to the Lax Kw’alaams’ activity.[16]

If the courts denied their claim to a commercial right, the Lax Kw’alaams argued that the judges should have engaged in a more searching inquiry of “lesser and included rights.”[17] This claim was not presented in a clear or coherent manner. Justice Binnie supported the trial judge’s conclusion that rejection of the original claim ultimately amounted to rejection of the lesser claim.[18] Indeed, both arguments lacked the requisite evidence.

Finally, Justice Binnie dismissed the notion that the Honour of the Crown created an obligation to provide the Lax Kw’alaams with a commercial fishing license. Once again, Justice Binnie based his decision largely on the trial judge’s interpretation of the facts. There was simply no evidence to support the claim that the Crown intended to grant the Lax Kw’alaams preferential access to commercial resources.

The Supreme Court’s decision in Lax Kw’alaams Indian Band provides much-needed clarification on what is required to advance an aboriginal right. The case is significant because it serves as a warning against litigants who try to extrapolate broad modern rights from comparatively narrow ancestral practices. The decision also illustrates the difficulty of claiming an aboriginal right based on limited historical evidence. This challenge is compounded by the adversarial character of civil litigation. Perhaps aboriginal claimants would be better served by a more collaborative forum.

Ara Basmadjian is a third-year J.D. candidate at the University of Ottawa.

[1] Constitution Act, 1982, s 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams Indian Band].
[3] Ibid at para 1.
[4] Ibid at para 15-17.
[5] Ibid at para 18.
[6] Ibid at para 28.
[7] Ibid at para 32.
[8] Ibid at para 37.
[9] Ibid at para 40.
[10] Ibid at para 41.
[11] Ibid at para 42. See R v Van der Peet, [1996] 2 SCR 507.
[12] Lax Kw’alaams Indian Band, supra note 1 at 43.
[13] Ibid at para 51.
[14] Ibid at para 52-53.
[15] Ibid at para 56.
[16] Ibid at para 58.
[17] Ibid at para 60.
[18] Ibid at para 62.
Designed by Rachel Gold.