Supreme Court denies Lax Kw’alaams the right to fish commercially

The Supreme Court of Canada upholds BC court decision that Lax Kw'alaams doesn't have the right to its own commercial fishery.

  • Nov. 12, 2011 11:00 a.m.

The Supreme Court of Canada has decided that Lax Kw’alaams does not have a constitutional right to create their own commercial fishery, which is something the local First Nation has been fighting for in the court system for years.

Canada’s highest court of law upheld a decision by the BC Supreme Court which said that the First Nation had not proven that fish trading was an defining part of the their society before contact with Europeans. Because of this, they are not entitled to catch fish for the purpose of selling them like they are to catch fish for sustenance and cultural use.

Lax Kw’alaams had argued that there was evidence of commercial fish trade in pre-contact society because of their ancestors’ trade of Eulachon; a fish that contains so much oil that it can be lit and used as a candle when dried. However, this is the only instance of pre-contact fish trade that Lax Kw’alaams could point to to support their claim to commercial fishing rights, and Eulachon was only harvested for a few weeks every spring.

In 2009 the BC Supreme Court found that catching one kind of fish for trade was not enough to justify a right to catch and sell “all species of fish” on a commercial scale, which is what the Lax Kw’alaams wanted. On thursday, the  Supreme Court agreed with the lower court.

“The practices, customs and traditions of the pre‑contact society do not provide an evidentiary springboard to a constitutionally protected Aboriginal right to harvest and sell all varieties of fish in a modern commercial fishery. The pre‑contact society was not a trading people, except with respect to eulachon grease.  As the trial judge found, such sporadic trade as took place in other fish products was peripheral to the pre‑contact society and did not define what made pre‑contact society what it was.”

“To build a modern commercial fishery on the narrow support of a limited ancestral trade in eulachon grease lacks sufficient continuity and proportionality,” reads the Supreme Court’s decision written by Justice Ian Binnie.

After losing the BC court case in 2009, Lax Kw’alaams appealed to the Supreme Court on the basis that the court had not gone about making the decision properly. Lax Kw’alaams’ lawyers claimed that before the courts can make a decision on what constitutes an aboriginal right, they must first perform an inquiry into what the the group’s pre-contact customs actually were, and make a decision based on the findings of that inquiry.

The Supreme Court said that was nonsense.

According to the Court, judges are entitled to make decisions based on what is presented in court, which effectively means that the burden of proving the existence of a right to fish commercially was placed on Lax Kw’alaams itself; and they failed to do so convincingly.

“The ‘commission of inquiry’ approach  is not suitable in civil litigation, even in Aboriginal cases, where procedural rules are generously interpreted to facilitate the resolution of the underlying controversies in the public interest. Following that model would be illogical and contrary to authority, and would defy the relevant rules of civil procedure,” reads the decision.

Lax Kw’alaams also claimed that they had been promised commercial fishing rights by government officials when the reserves were created back in the 1880’s. If true, the government would be obligated to fulfill that promise based on a legal principle known as “honour of the crown.”

But the court didn’t buy that argument either, saying that the claim that this promise was made “has no factual basis.”

“The Honour of the Crown is a general principle that underlies all of the Crown’s dealings with Aboriginal peoples, but it cannot be used to call into existence undertakings that were never given.”

Since the Supreme Court has the final say on all constitutional matters in this country, this is the end of the line for Lax Kw’alaams’ attempts to establish a commercial fishery through the court system. It is not clear how much money of the group’s money was spent on legal fees and other expenses in a three years of legal proceedings that ultimately went nowhere due to a flimsy case.

Lax Kw’alaams was not immediately available for comment.