Aboriginal Law @ Gowlings, December 14, 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

Link: http://scc.lexum.org/en

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.

Issues:

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:

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

   2. Determining whether the First Nation claimant has proven:

      the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and 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;

   4. Where an...