Lax Kw’alaams Indian Band v. Canada (Attorney General): Unanimous Decision Against Lax Kw’alaams?

Back in March, we  posted about the Supreme Court’s granting of leave to appeal to the Lax Kw’alaams Indian Band, in regard to their claimed aboriginal fishing rights. 

Here’s the materials:

Appellant – Lax Kw’alaams Indian Band Factum

Respondent – Attorney General of Canada Factum

The hearing was held on 2-17-2011 and there’s finally been some time found to watch the oral arguments.  If the Indigenous Law & Policy Center was a betting organization, it would predict that a 7-0 decision in favor of Canada will be forthcoming.   You heard it here, folks!  Below is a quick summary of the hearing.

The Lax Kw’alaams Band’s counsel split their time with 40 minutes going to the aboriginal right of fishing and the remaining 20 minutes to the honour of the Crown.

For the aboriginal rights argument, John R. Rich relied heavily on R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 and the modern aboriginal rights that have evolved from pre-contact fisheries.  The court did not seem impressed with his argument, soliciting questions mainly from Chief Justice Mclachlin, and Justices Binnie, Charron, Rothstein, and Deschamps.  Justices Fish and Cromwell were absent.

In the honour of the Crown argument,  F. Matthew Kirchner mainly discussed R. v. Marshall, [1999] 3 S.C.R.456 (“Marshall I”) and R. v. Taylor and Williams, [1981] 3 C.N.L.R. 114 (Ont. C.A.), claiming that the honour of the Crown was in play by way of the Crown’s policy in creating the reserve system.  Justice Abella started off the questions for Kirchner, asking whether the implied promises made by the Crown’s representative in the 1880s, to the Lax Kw’alaams Indian Band, could withstand the trial judge’s findings that they did not.  Later, when comparing Marshall and Taylor, two Justices (couldn’t see who it was…but presumably Abella and Binnie) verbally tripped over each other in blurting out a distinguishing factor, based on the fact that they were both treaty cases, whereas in this case, it wasn’t.  Kirchner responded by saying that the honour of the Crown should be no less present in a treaty case as it is in a non-treaty case.  Chief Justice Mclachlin looked for clarification as to whether the Lax Kw’alaams Band was looking for access (which, she stated, was already happening) or “preferential” fishing rights over others.  In response, Kirchner argued that the Band has been “pigeonholed” into a small, limited area of the commercial fishery and that the promise made was that they would have access to a general, non-exclusive fishery.  Justice Charron then chimed in, stating that the lower court found no proof of any promise by Crown representatives, and rather, on the contrary, the opposite was established.  Kirchner again referred to Marshall, seemingly unconvincing to the court, especially Abella.

Intervener Metlakatla Band was represented by Maria Morellato, who gave a brief history of the region and also raised the issue of the honour of the Crown.  She was followed by David M. Robbins, for the intervener Gitxaala Nation, Robert J.M. Janes, for the intervener Te’Mexw Treaty Association.

The respondent Attorney General of Canada was represented by Cheryl J. Tobias, who addressed three things.  (1) How, if at all, the Van der Peet steps were amended at all  in the civil litigation context – they did not, she argued (2) to what degree, per Van der Peet, does a modern right have to resemble a pre-contact right, and (3) whether the honour of the Crown would impose an obligation or fiduciary duty on the Crown – in this instance, to provide a preferred access to commercial fishing.  Tobias harped on the fact that the trial court judge found that the harvesting of certain fish was not integral to their way of life.  Because of the Van der Peet decision, her argument was strong, and she seemed to sway most of the court, with only a few questions from Justice Lebel, who had been totally silent up until this point.  Justice Lebel seemed to have lobbed Tobias some easy questions, actually setting her up with much of her argument. 

Tobias  was followed by her co-counsel, Sharlene Telles-Langdon, who focused on rebutting the Lax Kw’alaams Band’s submissions concerning the honour of the Crown.   She received a few questions from Justices Binnie and LeBel and the entire court seemed swayed by her argument. 

Telles-Langdon was followed by James M. Mackenzie, who addressed the role of the courts in the process of reconciliation, and the role of pleadings in the court.  Justice Binnie, looking bored out of his mind, (as you must be, if you’re still reading this) asked Mackenzie one question on the value and purpose of the evidence at the trial level.   Acknowledging that his own submissions were “trite,” he emphasized that they were still important, concluded, and sat down.

Aboriginal law – Constitutional law – Constitution Act, 1982, s. 35 – Aboriginal rights – Indian band – Fishing – Claims dismissed in lower courts – Whether the courts below erred by reversing the approach to identifying an underlying practice and to characterizing an Aboriginal right, as set out by this Court in R. v. Marshall, [1999] 3 S.C.R. 456, and R. v. Bernard, [2005] 2 S.C.R. 220, and followed in R. v. Sappier, [2006] 2 S.C.R. 686 – Whether the courts below erred in their identification of pre contact practices, in respect of a commercial right – Whether the courts below erred by refusing to consider whether Aboriginal fishing rights of consumption and sale were established on the evidence – Whether, in dismissing the claim based on the honor of the Crown, the courts below erred by concluding that the allotment of fishing station reserves by the Crown did not imply a promise of fishing opportunities.

The appellants comprise several tribes or houses known prior to European contact as the Coast Tsimshian who inhabited territories and fishing sites along the northwest coast of British Columbia. They commenced proceedings in 2002, seeking inter alia declarations that they have existing Aboriginal rights under s. 35(1) of the Constitution Act, 1982 to harvest all species of “Fisheries Resources” (defined to mean all species of fish, shellfish and aquatic plants) in their “Tribal Territories” (as shown on a map attached to the Statement of Claim) and to “sell [them] on a commercial scale” in Canada. This case arises not as a result of an alleged regulatory offence, but in an action brought by the Aboriginal group for declaratory relief against the federal and provincial governments. Before trial, an order was made that severed from the proceeding the question of Aboriginal title: 2006 BCSC 1463. At trial, all of the appellants’ claims not severed pursuant to the Severance Order were dismissed. The Court of Appeal dismissed the appeal.