commercial fishing rights in a Supreme Court decision Thursday.
The aboriginal band, called Lax Kw'alaams, was seeking a declaration that it is entitled to a native right to harvest and sell all species of fish – including seaweed, shellfish and fish – in its traditional territory in the Prince Rupert region of the province.
purposes, but not to sell. The claim was denied in lower courts and the Supreme
Court upheld those decisions, and their reasons, in its unanimous decision
If the Lax Kw'alaams had been able to establish that trade was integral to
their culture and sustenance prior to contact with the Europeans in the 1790s,
the Constitution would have protected their aboriginal rights and they could
have been granted access to sell products on a commercial scale.
The Supreme Court found that they were not primarily a trading people
pre-contact and therefore their ancient customs and practices do not translate
into a constitutionally-protected right to harvest and sell all kinds of fish in
a modern commercial fishery.
A lower court previously found that while the band's predecessors, the Coast
Tsimshian, did fish a variety of species including salmon and halibut, they only
traded in a specific grease product called eulachon, derived from one
The Supreme Court agreed with the lower courts that the eulachon trade was
sporadic and not central to their sustenance.
"It is not enough to show that some element of trade was part of the
pre-contact way of life if it was not distinctive or integral to that way of
life," Justice Ian Binnie wrote in the decision.
"Such sporadic trade as took place in other fish products was peripheral to
the pre-contact society and did not define what made Coast Tsimshian society
what it was."
Lax Kw'alaams appealed the ruling but the B.C. Court of Appeal upheld the decision in
December 2009, citing the trial judge's conclusion that it would be stretching
the idea of aboriginal fishing rights to rule that the ancient grease trade must
lead to a modern right to fish all species.
They argued the trial judge was too strict in her interpretation and that the
eulachon trade was part of their ancestral way of life and on that basis, they
should be allowed to continue to trade in fish generally.
The band had argued that under the Marshall decision of 1999, they have the
right to fish and sell their harvest to economically support their
The Marshall decision granted fishing rights to Canada's First Nations and
was itself based on a treaty right to earn a moderate livelihood.
A similar case brought before the B.C. Supreme Court in November saw a
Vancouver Island native group, known collectively as the Nuu-chah-nulth First
Nation, granted the right to harvest and sell all species of
fish found within its territories.
The judge in that case also dismissed a claim to aboriginal title over the
fishery, upheld the federal government's control over all fisheries and urged
the band and Ottawa to negotiate how to handle native fishing and fish
The Lax Kw'alaams First Nation had also argued that the Crown has a fiduciary
duty to ensure they have access to the commercial fishery because of promises,
expressed or implied, made by government officials in the 1880s when they were
allotted reserves and fishing stations on their territory.
The Supreme Court also rejected that claim, saying 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."