In Lax Kw’alaams Indian Band v. Canada (Attorney General), the Lax Kw’alaams First Nation was seeking the right to harvest and sell seaweed, shellfish, and fish in its territory in Prince Rupert, B.C. The band is allowed to fish for food, social, and ceremonial purposes, but not to sell.
In 2008, the Supreme Court of B.C. ruled that the Coast Tsimshian, the Lax Kw’alaams’ predecessors, only conducted limited trade of one species of fish. Justice Deborah Satanove (now Kloegman) found that general fish trading was not an integral component of their society and so the foundation for an industrial fishery did not exist.
“In my opinion, it would be stretching the concept of an evolved Aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease is equivalent to a modern right to fish commercially all species in their Claimed Territories,” she stated.
The B.C. Court of Appeal upheld the lower court’s decision.
The Lax Kw’alaams argued that the courts erred in their characterization of the claim and did not comprehensively analyze the supporting evidence.
In dismissing the Lax Kw’alaams’ appeal, former SCC justice Ian Binnie wrote on behalf of a unanimous bench: “The trial judge acknowledged that prior to contact with Europeans, the Coast Tsimshian largely sustained themselves by an extensive fishery. They did not, however, engage in any significant trade in fish or fish products except for a grease derived from a smelt-like species called the eulachon. . . .”
The band also claimed that at the time of the reserve’s creation in the 1880s, the government made promises regarding access to a commercial fishery. However, Kloegman ruled that the Crown made no such promises and therefore no fiduciary duty was owed.
Binnie added: “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. It was in part the lack of continuity and proportionality in the Lax Kw’alaams’ attempt to build a full-blown twenty-first century commercial fishery on the narrow support of an ancestral trade in eulachon grease that concerned the trial judge. Her concern, in my view, was well founded.”