No Aboriginal Right for Lax Kw'alaams Indian Band to Commercial Fishery says BC Court of Appeal


The BC Court of Appeal released its decision on December 23rd on Lax Kwa'aams' appeal from the Supreme Court's decision that it did not have a commercial right to fish all species within their "Claimed Territory." Unlike other Aboriginal fishing cases, this case arises not from an alleged regulatory offence, but in an action brought by Lax Kw'alaams for declarations that it has aboriginal rights to harvest all species of Fisheries Resources and to sell them on a commercial scale.

At trial, Lax Kw'alaams claimed that each of the Allied Tsimshian Tribes, was a "distinctive Aboriginal society engaged in a sophisticated economy based predominantly on harvesting, managing, processing, consuming and trading all species of fish, shellfish and aquatic plants...that were available to the Tribes from time to time within their Tribal Territories." It claimed that wealth creation in Coast Tshimshian society depended on trade and that Fisheries Resources were a necessary trade item. Finally, it asserted Aboriginal rights to "harvest, manage and sell on a commercial scale Fisheries Resources and Fish Products...for the purpose of sustaining their communities, accumulating and generating wealth, and maintaining their economy." The trial judge found that while the Coast Tsimshians traded in prestige goods, including eulachon grease, trade in other fish and related products had been incidental, low volume, foods for social and ceremonial purposes; and was not, "equivalent to a modern right to fish commercially all species in their Claimed Territories." In the result, their claims were dismissed.

It severed its title claim in these proceedings.

The appeal was framed for the most part as issues of law turning on the characterization of the right being sought and on the trial judge's assessment of the relevant "practices" of the Coast Tsimshian in relationship to their "way of life" prior to European contact. The Court of Appeal held that the while the trial judge may have mis-described the right in part, as not limited to a species of a specific resource, her delineation of the right as tied to a particular practice - trade in "prestige" goods such as eulachon grease - was not in error. Further it found that while it would have been erroneous for the trial judge to deny Lax Kw'alaams claim solely on the ground that it did not occupy or use the Nass River fisheries exclusively, it found no basis to interfere with her findings that "the Coast Tsimshian did not carry on any significant trade in fish and fish products, except eulachon grease, that could be said to be integral to their distinctive society and that could be said to be the precursor of a modern commercial fishery." It also found no errors in law or exercise in discretion on the trail judge's treatment of lesser/included rights, separate claims to harvest Fish Resources for FSC purposes, application of the principled approach in catagorizing trading-based rights and alleged breaches by the Crown.

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