For generations before the arrival of Europeans, the Lax Kw’Alaams tribe of British Columbia harvested halibut, crab and seaweed from its territory. But as far as the Supreme Court of Canada is concerned, the tribe has no constitutional right to sell those products commercially.
The seven-judge panel issued its unanimous decision on November 10. The band has a right to fish for food, social and ceremonial purposes, the judges ruled, but not to sell to a commercial fishery. The ruling, which upheld two previous ones issued by lower courts, was the tribe’s final avenue of appeal.
“It was a real letdown,” said Lax Kw’Alaams chief councilor Garry Reece. “I couldn’t believe they would make a decision like that.”
The 3,500-member tribe had argued that its members had a right to sell seafood items from its territory, 18 miles north of Prince Rupert, and that they had engaged in such trade and commerce before contact with Europeans.
The court disagreed, saying that the tribe’s precontact customs and traditions weren’t congruent with a constitutionally protected aboriginal right to harvest and sell fish. The court acknowledged that Lax Kw’Alaams had sustained themselves by harvesting various species but said the tribe only engaged in trading one of them—eulachon, or smelt.
“The precontact society was not a trading people, except with respect to eulachon grease,” the judgment noted. “[Such] sporadic trade as took place in other fish products was peripheral to the precontact society and did not define what made precontact society what it was.”
Aboriginal rights are not frozen in time, the judgment said. Their subject matter and method of application can evolve. But, the judges said, the Lax Kw’Alaams’ claim to a commercial fishery would create a right qualitatively and quantitatively different from the precontact trade in eulachon grease, something the courts could not proceed with.
“It is not enough to show that some element of trade was part of the precontact way of life if it was not distinctive or integral to that way of life,” the judgment said. Establishing a commercial fishery would be “out of all proportion to its original importance to the precontact economy.”
A decision that favored the tribe would have improved the community’s economy and lowered its unemployment rate, Reece said. The community has more than 60 fishing boats and operates its own processing plant. But it does not have a halibut license or quota, and the Lax Kw’Alaams lack the ability to practice the more lucrative trolling method.
Reece was still waiting to examine a report from the tribe’s law firm before sitting down with his membership. “I’m not sure what our options are,” he said.
The case had its merits but was poorly presented, said Judith Sayers, an adjunct professor of law at the University of Victoria who is of aboriginal descent.
“The legal counsel didn’t provide enough definition to key parts of the case, and the evidence didn’t give them the results that they wanted,” Sayers said. She added that the courts were clear that if a tribe claims it has a commercial fishery, the operation must be clearly defined and connected with what the tribe did precontact to show that the activity is integral to its identity. “The only clear evidence involved the eulachon, which wasn’t a huge part of the overall fishery.”
The Lax Kw’Alaams case could have broader implications in the British Columbia Treaty process, Sayers said. “They’ll use that against First Nations.”
In a recent British Columbia Supreme Court ruling, the Nuu-chah-nulth First Nation was granted the right to harvest and sell all species of fish within its territories. The federal government may yet appeal, Sayers said. The same law firm represented both the Lax Kw’Alaams and Nuu-chah-nulth.