Strike three for Lax Kw’alaams in Canada’s courts

A First Nation fishing community on the North Coast of British Columbia is deeply disappointed after the Supreme Court of Canada dismissed its case last month, upholding a lower court ruling that the group has no constitutional right to conduct an all-species commercial fishery within their territory.

The Nov. 10 decision upheld the 2008 ruling of the BC Supreme Court.

The high court decion is a major defeat for the Lax Kw’alaams First Nation, which had been fighting for the legal right to an all-species commercial fishery in the waters off their territory near Prince Rupert, BC.

The group brought their case to provincial court fighting for a constitutional Aboriginal right to harvest fish and shellfish outside of their federally allocated commercial and seasonal ceremonial food fish harvest.

But the court ruled against the First Nation. The group later appealed, but the earlier decision was upheld and the case was dismissed.

The latest Supreme Court ruling brings a certain and abrupt end to the Lax Kw’alaams First Nation commercial harvest debate.

“I wasn’t too happy when we heard the ruling,” said Lax Kw’alaams Chief Garry Reece.

“We were asking them to commercialize all resources,” he explained.

“That’s how our people survived for generations,” he added, referring to the band’s rich fishing tradition. “Especially the eulachon grease trail,” he said.

The BC Supreme Court had acknowledged that the Coast Tsimshian, ancestors of the Lax Kw’alaams, had traditionally harvested various species of fish and shellfish. But the case went flat when the court found that there was no proof of trade in all species.

Following the unanimous decision last month to uphold the lower court rulings, Supreme Court Justice Ian Binnie, now retired, stated that: “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....”

In his statement, Binnie added that: “The Lax Kw’alaams live in the 21st 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 21st 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.”

In an alternative argument, the Lax Kw’alaams had asserted that the Crown has a fiduciary duty to honour promises made to them by Canada in the late 19th century to preserve their fishery.

But in 2008 the BC Supreme Court had found no proof that the Crown had made any promises and therefore had no fiduciary duty to uphold regarding the First Nation fishery.

“The Crown had not made express or implied promises of any preferential access to the commercial fishery, and had made its intention to treat Aboriginal fishers in the same manner as other fishers clear,” the trial judge stated.

The First Nation’s lawyers also argued that an inquiry must be conducted before the courts can make any legal ruling on what constitutes an aboriginal right. They further contested that the courts must research and fully examine exactly what the group’s pre-contact customs were and then make an informed decision based on the inquiry findings.

The Supreme Court of Canada disagreed.

They stated that according to the Court, judges can make decisions based on the presentation of evidence at a hearing and consequently it was found by the Canadian court that the Lax Kw’alaams First Nation did not provide a convincing argument for their case.

“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,” wrote Justice Binnie.

“In this case, the attempt to build a modern commercial fishery on the narrow support of a limited ancestral trade in eulachon grease lacks sufficient continuity and proportionality,” he added.

But while the Lax Kw’alaams have lost their fight for commercial fishing rights, the Nuu-chah-nulth of central Vancouver Island made history in 2009 after winning a similar case they brought before the BC Supreme Court.
The landmark case, referred to as Ahousaht et al v. Canada, was the first court decision of its kind in which a First Nation group was granted the right to harvest and sell all species of fish caught within its territories.

But the Nuu-chah-nulth ruling also came with stipulations. Federal control over the fisheries was upheld in the ruling and the court sent the Nuu-chah-nulth and Ottawa to the negotiating table to discuss how to accommodate a Native commercial fishery.

Canada and the province of British Columbia challenged the court decision and in May 2011 the B.C. Court of Appeal unanimously upheld the B.C. Supreme Court ruling that acknowledged the right of the Nuu-chah-nulth First Nations to harvest and sell any species of fish in their territories (with the exception of geoduck clams).
Then on Aug. 17, Canada took their appeal application to the Supreme Court of Canada. The application has not yet been considered.

The Nuu-chah-nulth say they will fight for their constituationally-determined fishing right to remain upheld, even if they feel they shouldn’t have to.

“To me it’s a shame that we have to fight for our regognition of rights and title and it’s a shame that the Lax Kw’alaams had to fight for their recognition,” said Cliff Atleo, president of the Nuu-chah-nulth Tribal Council. “It’s just not right that we are so ill-recognized by the province and Canada,” he said.

“If our history is told among our people from generation to generation, it should be enough,” Atleo said.

Chief Reece says he doesn’t know what, if anything, the Lax Kw’alaams First Nation will do next regarding their struggle for extended commercial fishing rights. He said the legal fees for the case have cost the band over $3 million.

“We’ll have to sit down with our community members and try to see where we’re going next with this,” he said quietly.

Reece said the federal government must review and reconsider how they manage the BC commercial fishery. He says it is unfair to Aboriginal people living near the resources.

“It’s been really poor management,” he said. They [Department of Fisheries and Oceans] have all the commercial sector of crabs and prawns and we don’t have that,” said Reece. “And it is right in our backyard!”
“Our community is a fishing community and we rely on our sea resources and we’re not able to do that,” he continued.

“It’s been an uphill battle,” he said.