Supreme Court of Canada –  3 S.C.R. 535
The Supreme Court refused to recognize an extended aboriginal right to trade fish on ancestral territory. The possible evolution of Aboriginal rights is acknowledged, but within qualitative and quantitative limits that do not permit the creation of a new right.
It would be unreasonable to interpret the treaty to confer a trading right while withholding access to the resources it was contemplated would be traded. (par. 71 of the decision).
Do the practises, costumes, and traditions of the Lax Kw’alaams allow for the recognition of the modern right to commercial harvesting and sale of all varieties of fish?
The commercial sale of eulachon oil is a fundamental element of the distinctive culture of the Lax Kw’alaams Indian Band (“Lax Kw’alaams”). It is therefore an Aboriginal right benefiting from the protection of s. 35 of the Constitution Act, 1982. However, the evolution of Aboriginal rights does not allow for the existence of a broader right to the fishing and sale of all fish on the northwest Pacific coast. The ancestral trade of fish other than the eulachon was too weak, irregular and sporadic to justify an Aboriginal right to do so (unanimous decision).
Between: Lax Kw’alaams Indian Band, represented by Chief Councillor Garry Reece on his own behalf and on behalf of the members of the Lax Kw’alaams Indian Band, and others
And: Canada and the Crown of British Columbia
Interveners: Ontario, Metlakatla Band, B.C. Wildlife Federation, B.C. Seafood Alliance, Gitxaala Nation, represented by Chief Elmer Moody on his own behalf and on behalf of the members of the Gitxaala Nation, and Te’Mexw Treaty Association
Members of the Lax Kw’alaams First Nation lived historically on the northwest coast of British Columbia for thousands of years, and continue to do so today. Before contact with the Europeans, fishing was their source of subsistence and was an integral part of their distinctive culture.
Fish products were sometimes traded or sold, but were mostly exchanged among kin at feasts or potlatches. However, the eulachon (or candle fish) was harvested, eaten and smoked for the extraction of grease to be sold. This distinctive commercial activity was exercised prior to initial contact with the Europeans.
The Lax Kw’alaams claim the right to fish all species in its traditional waters.
The Lax Kw’alaams Indian Band: Commercial harvesting and sale assured their economy and subsistence prior to contact with the Europeans. This is a sufficient basis for the recognition of an Aboriginal right. The honour of the Crown is implicated due to the promises made regarding rights to commercial harvesting at the time of the creation of the reserves.
Canada: No promises were made to the band. Additionally, the Aboriginal right to the commercial sale of eulachon grease cannot be extended to the commercial harvesting of other types of fish due to the lack of integral role it played in Lax Kw’alaams culture before contact with Europeans.
The Supreme Court of British Columbia: The sale of fish product other than eulachon grease does not constitute an integral part of the distinctive culture of the Lax Kw’alaams. The commercial harvesting and sale of other fish was of an insufficiently high volume and frequency to justify an Aboriginal right to that end. Tthe Crown did not act dishonourably, because there is no evidence of promises to grant commercial harvesting rights.
The British Columbia Court of Appeal: The sale of eulachon grease is an Aboriginal right, but is not sufficient to allow the right to commercial harvesting of all varieties of fish. The evidence is lacking in order to establish that promises were made implicating the honour of the Crown.
McLachlin, Binnie, LeBel, Deschamps, Abella, Charron, Rothstein
To recognize an Aboriginal right, the Court must (1) precisely determine the right being claimed, (2) determine whether the evidence establishes the existence of a practice associated with a distinctive Aboriginal band prior to contact with Europeans, and (3) decide whether there is a continuous link between the right claimed and the ancestral practice.
The sale of eulachon grease is an important part of the distinctive culture of the Lax Kw’alaams that has been in practice for hundreds of years. This commercial activity is therefore a protected Aboriginal right pursuant to section 35 of the Constitution Act, 1982.
The band, however, claims the right to commercial harvesting. Prior to contact with the Europeans, fishing was a means of subsistence. Although there were occasional exchanges of fish between kin at potlatches and feasts as well as trade for luxury goods, this was not an important part of their culture. Commercial harvesting is therefore not an Aboriginal right in and of itself.
When an Aboriginal right has been established, as is the case of the sale of eulachon grease, its subject matter and method of exercise can evolve with time. This evolution is subject to qualitative and quantitative limitations. However, the subject matter of the Aboriginal right, the sale of eulachon grease, cannot evolve in such a way as to permit the sale of all other varieties of fish. This evolution would surpass the quantities limitation of the number of species harvested and sold by the Lax Kw’alaams. This would constitute the creation of a new right and not a mere evolution of the former.
Honour of the Crown
There is no evidence of express or implied promises regarding the right to commercial harvesting. The Crown never had the intention to grant such a right and has therefore no duty implicating its honour.
This decision confirmed that the first step, the characterization of the claimed right, is fundamental to the process. The claim must be clearly explained and the counsel of the Aboriginal bands must precisely mark out the rights invoked in order to link them to a recognized ancestral practise. This would prevent lengthy and costly investigations that may lead to the conclusion that no Aboriginal right exists.
According to Chief Reece, the costs of the Lax Kw’alaams in this case amounted to more than 3 millions of dollars. He declared that the federal government should review it fisheries management in British Columbia, because it is unfair to First Nations (Lewis, 2011).
The principal criticism of this judgement concerns the evolution of Aboriginal rights. Although the Court recognizes that an Aboriginal right is subject to evolution, the development of new Aboriginal practises is hampered by the imposition of qualitative and quantitative limits. Indeed, if Aboriginal bands would not like to live in the past, they must abandon these Aboriginal practises and the advantages thereby obtained in order to enter into modern commercial activity.
Another similar case is still before courts. In 2009, the Supreme Court of British Columbia recognized, in Ahousaht, the right to harvest and sell any fish species on the First Nation’s traditional territory. Federal control over fisheries is maintained, but the Court ordered negotiations in order to conclude an agreement on the issue (Lewis, 2011). These negotiations have started, although not easily.
In 2011, the Court of Appeal of British Columbia maintained the decision, but the Supreme Court ordered this decision to be reviewed under the light of Lax Kw’alaams. In 2013, the Court of Appeal reaffirmed its decision. The Nuu-chah-nulth argued that their case was different from the Lax Kw’alaams because in their culture, fishing was frequent and abundant. They must now negotiate with the federal government (Nuu-Chah-Nulth Tribal Council, 2013).
Applies the test set out in R. v. Van der Peet,  2 S.C.R. 507
Overturns certain aspects of R. v. Sparrow,  1 S.C.R. 1075
Adkins, Sam, Isaac, Thomas and Morin, René. 2011. Bande indienne des Lax Kw’alaams c. Canada (P.G.) — La Cour suprême du Canada rejette la revendication d’un droit ancestral de pêcher à des fins commerciales toutes les espèces de poisson. Articles-détails in Publication. McCarthyTétrault. On line : http://www.mccarthy.ca/fr/article_detail.aspx?id=5644. Consulted July 2, 2013.
Lewis, Shauna. 2011. « Strike three for Lax Kw’alaams in Canada’s courts ». Winspeaker, No. 9. On line http://www.ammsa.com/publications/ravens-eye/strike-three-lax-kw%E2%80%99alaams-canada%E2%80%99s-courts Consulted September 25th, 2013.
Manganelli, Carolina. 2012. La Cour Suprême confirme que les pratiques autochtones ne sont pas toutes protégées par l’article 35 de la Loi Constitutionnelle de 1982. Le droit du savoir. Lavery. On line :http://www.lavery.ca/upload/pdf/fr/DS_120101F.pdf Consulted July 2, 2013.
Nuu-Chah-Nulth Tribal Council. 2013. NUU-CHAH-NULTH NATIONS APPLAUD BC APPEAL COURT DECISION. On line http://www.hashilthsa.com/news/2013-07-02/nuu-chah-nulth-nations-applaud-bc-appeal-court-decision Consulted September 25th, 2013.