Tansi Nîtôtemtik,
Photo retrieved from: https://www.fraserinstitute.org/blogs/what-is-the-lax-kwalaams-first-nation
Many First Nations claims about hunting and fishing rights have been litigated all the way to the Supreme Court of Canada. One such case was Lax Kw'alaams Indian Band v. Canada (Attorney General). This case dealt with the distinctions between pre-contact and post-contact practices of the Lax Kw'alaams Band on the BC coast. The overall question posed to the SCC was: which practices were distinctive and integral enough to be considered part of their pre-contact culture? [1]
Essentially, the Lax Kw’alaams were trying to establish that their large-scale commercial fishing activity was protected as an Aboriginal right.[2] These appeals were not in response to criminal charges or regulatory prosecutions; rather, they were the result of the Lax Kw’alaams efforts to open the door on this particular right.
The Lax Kw’alaams are a traditional fishing people whose way of life has been interconnected with the fishing, harvesting, and production of goods from the abundant fish available, such as salmon, halibut, and eulachon. It was a key point that these people both consumed and traded these fish, creating products for trade such as eulachon grease, which was a highly valuable preservative. [3]
The Lax Kw’alaams asserted their history as supporting a modern right to harvest and sell fish commercially, as a way for them to accumulate wealth and prosperity. In fact, this aspect was asserted as being part of their culture -- “the “accumulation and redistribution of wealth to acquire or retain a high rank” within Tsimshian society were said to be integral features of their distinctive Aboriginal culture.” [4]
The SCC’s Justice Binnie, writing for a unanimous Court, framed the issue as “whether [the Lax Kw’alaams’] ancestral practices, customs and traditions provide a proper legal springboard to the right to harvest and sell all varieties of fish in a modern commercial fishery — a right that would be protected and privileged by section 35(1) of the Constitution Act, 1982.” [5]
Acknowledging the need for a certain amount of flexibility in these types of cases, Justice Binnie outlined a 4-step consideration process that a court should follow when deciding on an Aboriginal rights claim.
- Characterize the “precise nature of the claim” based on the arguments and facts before the court.
- Determine whether the applicants have proven both (i) the existence of the pre-contact practice, and (ii) that the practice was integral to the distinctive pre-contact Aboriginal society.
- Determine whether the claimed modern right can be reasonably considered to be a continuation of the established pre-contact practice.
- If an Aboriginal right to commercial trade is found to exist based on the previous three factors, courts should consider that, in the right circumstances, objectives such as the pursuit of economic and regional fairness are in the interest of all Canadians and, “more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.”[6]
In the decision, the Court deferred to the trial judge’s findings of fact, especially that the Lax Kw’alaams’ ancestors “were not a trading people.” Ultimately, the SCC rejected their claim to a modern commercial right. [7]
Until next time,
Team ReconciliAction YEG
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[1] Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56
[2] Ibid at para 7.
[3] Ibid.
[4] Ibid at para 22.
[5] Ibid at para 39.
[6] Ibid at para 46.
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