In Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, the Supreme Court of Canada recently (Nov. 10) dealt a serious blow to any tribes wanting to engage in commercial fisheries within their traditional territories. The unanimous, 7 judge court (McLachlin, Binnie, LeBel, Deschamps, Abella, Charron, and Rothstein) rejected a claim to possession (under s. 35) of an aboriginal right to fish commercially all species in their traditional territories. Before contact with the newcomers, the Lax Kw’alaams Indian Band fished off their ancestral coast for thousands of years, regularly traded fish grease extracted from the eulachon, as well engaged in occassional trade in other fish and fish products. As such, the Lax Kw’alaams sought a declaration as to their aboriginal rights to engage in commercial fishing. The trial judge and later, the British Columbia Court of Appeal, rejected their claim. The Supreme Court followed suit – and Justice Binnie (shouldn’t he be gone by now?), writing for the court, agreed with the lower courts.
Binnie held that the claimed modern right to fish commercially all fish species in their traditional territory was not a “logical evolution” of the regular, pre-contact trade in eulachon grease and occassional trade in other species; it did not provide a “sufficient historical basis” for the broad commercial right. He opined that the the earlier activity and the present claim were both “qualitatively different” (Lax Kw’alaams did not trade other species “in any significant way”) and “quantitatively different” (the modern commercial right would “lack proportionality” to the pre-contact importance of trade). In determining the steps for establishment of an Aboriginal right, Binnie included a new stage for commercial rights – a court must delineate the right while also considering the interest of all Canadians – such as the pursuit of economic and regional fairness and the reconciliation of non-Aboriginal groups’ historical reliance on the resource.
And with every new SC decision, here’s the updated Supreme Court of Canada Report Card. Careful now, Justice LeBel – you’re heading deep into U.S. Justices Thomas (10%) and Scalia (16.9%) territory with your 26% in favor of aboriginal interests.