On April 16, 2008, after a year long trial, Madam Justice Satanove of the B.C. Supreme Court issued her decision in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447, in relation to a claim for an aboriginal commercial fishery on the north coast of British Columbia just north of Prince Rupert. The Court dismissed the plaintiff’s declarations that:
- the plaintiffs have an existing aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982 to harvest and sell on a commercial scale all species of fisheries resources that they harvest from their claimed territories;
- the Fisheries Act, R.S.C. 1985, c. F-14 and the Fisheries Act, R.S.B.C. 1996, c. 149 and their respective Regulations infringe upon this aboriginal right; and
- the Crown has breached their trust-like or fiduciary obligations to the plaintiffs by restricting or denying their ability to harvest fish resources from their claimed territories for commercial purposes.
The Court held that the Lax Kw’alaams failed to demonstrate that trade in fisheries resources took place at a commercial level, and failed to demonstrate that any trade that did take place was integral to their distinctive culture.
The B.C. Supreme Court Ruling
As part of undertaking a Van der Peet aboriginal rights analysis, the Court first recalled the three basic steps to assessing an aboriginal right: (i) identify the nature of the right claimed by the plaintiffs; (ii) establish the pre-contact aboriginal right being protected; and (iii) consider the effect of legislation on the proven, existing aboriginal right.
Under the first step, the Court characterized the nature of the claim as an aboriginal right to harvest and sell the fish resources and products found in their claimed territories on a commercial scale (para. 111). As part of the second step, the Court looked at the date of contact and found the most reasonable to be fixed for the purposes of law in B.C. was 1793 - when Captain Vancouver described meeting the Coast Tsimshian (para. 118).
This case is one of the first to comprehensively consider the oral history “adaawk” of the aboriginal people of this particular area of British Columbia since Delgamuukw. The Court acknowledged that such oral history must be treated with respect and evaluated with the aboriginal perspective in mind, but notwithstanding that, as evidence, it can “run the ambit of cogency from the highly compelling to the highly dubious” and should not be “tasked to carry more weight than it can reasonably support.” (para. 40).
The Court then examined whether the claimed aboriginal right was “integral to the distinctive culture” of the plaintiff. It found that the plaintiffs would have to establish the following elements as part of this examination:
- the Coast Tsimshian were members of an organized society;
- from which the plaintiffs have descended;
- who used and occupied the claimed territories;
- from which they harvested fish resources and products as an integral part of their distinctive culture;
- traded them on a scale akin to commercial as an integral part of their distinctive culture; and
- have continued to do so in a contemporary fashion.
After reviewing the evidence in respect of the first element, the Court concluded on a balance of probabilities that the Coast Tsimshian were, in fact, members of an organized society. Although they may not have existed in exactly the same composition as after contact, nor occupied exactly the same territory as their claimed territories, the core of the ten constituent tribes or village groups was found to be there (para. 159). Despite finding that “there was no cohesive, over arching, political regional organization until after the commencement of the fur trade, although there were social bonds and relationships amongst clan members of different villages” (para. 160), the Court went on to hold that the plaintiffs were descendants of the nine tribes collectively known as the Coast Tsimshian (para. 163). The Court held that, as descendants, the plaintiffs “are entitled to claim aboriginal rights arising from the existence and past practises of the nine tribes.” (para. 163).
In respect of claimed territories, the Court noted that because the plaintiffs were not attempting to establish aboriginal title, there was no need for them to prove that their claimed territories were or are used and occupied exclusively by them (para. 194).
Relying on the Supreme Court of Canada in R. v. Adams, the Court held that it must focus on, “the specific sites of these activities and recognize that a right to perform a site specific activity does not become an abstract right exercisable anywhere; it continues to be a right to exercise an activity on the tract of land in question.”(para. 10(8)(b)) The Court found, on a balance of probabilities, that the plaintiffs established, at the time of contact, they fished in the tributaries of the Skeena River (but not its mainstream) (para. 208) and the Dundas Island group (para. 218), but not in other claimed fishing grounds. The Court was satisfied that the harvesting and consumption of fish resources and products, including a surplus supply for winter consumption, was an integral part of their distinctive culture (paras. 239-259) – but reminded the parties that any declaration regarding rights to fish for food, social and ceremonial purposes was not requested.
In respect of trade, the Court found the evidence “overwhelming” that the pre-contact Coast economy, meaning that pre-contact trade was personal and negotiated between kin structured relations on a clan basis of familial relationships (paras. 290, 315). The Court further found that the nature of the trade by the Coast Tsimshian changed dramatically in form and scale as a result of the fur trade, which permeated the beginning of European contact and influence (para. 383).
Furthermore, the Court held that fisheries resources and products were harvested, but only as subsistence goods.
I have concluded that the Coast Tsimshian did trade in prestige goods, such as eulachon or mountain goat grease, before the arrival of the Europeans. Dr. Anderson, however, makes no distinction between trade in subsistence goods and trade in luxury items. In my view, this is a key flaw in her expert opinion. I agree that trading in luxury, exotic, specialized goods such as coppers, slaves, dentalium or grease was integral to potlatch exchange, wealth, rank, etc. and therefore can be said to be integral to the distinctive Coast Tsimshian society. However, little evidence of trade in subsistence goods such as Fish Resources and Products indicates that with respect to these items, such trade that did exist was only occasional and for survival, not commercial purposes. (para 435)
Madam Justice Satanove concluded, “I do not think that selling food during occasional periods of famine fits within the definition of “integral to a distinctive society,”(para. 436).
Additionally, the Court did not find on the evidence before it, that trade in any fish resource or product beside eulachon grease could properly be described as integral to the plaintiffs’ distinctive culture:
In particular, I am of the view that the plaintiffs have failed on the second step to prove on a balance of probabilities that their predecessors conducted a trade in Fish Resources and Products, before contact with Europeans, that in any way was “a central and significant part of their society’s distinctive culture”, or in any way “made [their] society truly what it was” (R. v. Van der Peet). I agree with the defendant’s submission that trading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC [food, social and ceremonial] purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society. (para 496)
The Court agreed with the plaintiffs that an aboriginal right - once proven - is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the aboriginal right is based (para. 498). However, the Court did not agree that the ancient trade in eulachon grease (undertaken outside the Lax Kw’alaams territory) transmogrified into a modern right to commercial fishing of salmon, halibut and all other marine and riverine species of fish (para. 499).
As a result of the Court’s findings, step three of the aboriginal rights examination – the effect of existing fishing legislation – was not considered. The Court therefore dismissed the plaintiff’s claim that they hold an aboriginal right to harvest and sell fish resources and products on a commercial scale.
Because the plaintiff did not establish an aboriginal right to harvest and sell fish resources and products on a commercial scale, the Court determined that there was no cognizable aboriginal interest to which a fiduciary duty could attach (para. 525). On a factual basis, the Court also concluded that the plaintiffs did not establish any dishonourable conduct on the part of the Crown (para. 530).
This case provides some needed guidance on the breadth and extent of claims for aboriginal rights. The Court clarifies that aboriginal rights are site-specific: the right is not an “abstract right exercisable anywhere”; it is tied to the particular site and must be claimed on that basis. Applying this principle, the Court limited the area of application to tributaries of the Skeena River (but not its mainstream) and the Dundas Island group. The Court also clarified that although aboriginal rights are not species specific, that the harvesting of one species in a distinct area for the purposes of commercial trade does not equate to general rights of trade for all species harvested. The Court held that there must be some connection between the two activities: “The rendering of the eulachon into oil was an [sic] unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.” Finally, in one of the concluding paragraphs to her judgment, Madam Justice Satanove commented on the public nature of the fishery as follows:
The difficulty with this premise is that the plaintiffs have not established a promise, express or implied, that the Lax Kw’alaams would not be subject to the same limits and restrictions on fishing as other fishers; in fact the opposite has been established. Fish, as a living, moving, dynamic, and variable resource has always belonged to the public at large, and the defendant’s administration of the fisheries has always had to take into account the rights of all Canadians to exploit this resource. (para. 529)