Supreme Court Of Canada Rejects Claim To Aboriginal Right To Commercially Fish All Species

Introduction

On November 10, 2011 a unanimous seven member panel of the Supreme Court of Canada (SCC) released its reasons in Lax Kw'alaams Indian Band v. Canada (A.G.).1 The SCC dismissed the Lax Kw'alaams' appeal and upheld the judgements of British Columbia's Supreme Court2 and Court of Appeal3 and held that the Lax Kw'alaams do not possess an aboriginal right to engage in a commercial fishery of all species of fish. In affirming the lowers courts' decisions, the SCC made a number of important comments regarding Aboriginal rights' litigation generally and the balancing of broader societal interests when dealing with claims of Aboriginal rights.

Background

The appeal involved a claim by the Lax Kw'alaams and other First Nations to an Aboriginal right to the commercial harvesting and sale of all species of fish and that the Crown had a fiduciary duty in that respect flowing from promises made in the reserve allocation process in the late 1800s. The Lax Kw'alaams also claimed what they described as a "lesser" Aboriginal right to engage in a more limited commercial fishery which would allow them to develop and maintain a sustainable economy. The trial judge and the Court of Appeal dismissed the Lax Kw'alaams' claims in their entirety. The SCC upheld these decisions and dismissed the appeal.

The Decision

Binnie J. wrote the reasons for the SCC and began his reasons by providing an overview of the case and the SCC's views on the matters before it. He confirmed the trial court's conclusion that the Lax Kw'alaams did not engage in any significant trade in fish or fish products except for the grease derived from a smelt-like species called eulachon, which were harvested for a few weeks every spring from the Nass River.4 Binnie J. noted that, although Aboriginal rights are not frozen in time, a very limited trade in eulachon grease does not translate into broad commercial fishery right: "The Lax Kw'alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) of changing times. However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right."5 As a result, Binnie J. stated that because the larger case could not be made, so too the "lesser commercial right" also failed.6

The Lax Kw'alaams belatedly sought a declaration of a right to a fishery for food, social and ceremonial purposes. Binnie J. noted that the Lax Kw'alaams currently...