RAVEN - Respecting Aboriginal Values and Environmental Needs

Lax Kw’alaams claim harvesting rights

Lax Kw’alaams Indian Band v. Canada (Attorney General)

Year: 2011

Court: Supreme Court of Canada

Citation: 2011 SCC 56

Location: BC

TAGS: Fishing Rights; Harvesting Rights; Fiduciary Duty

Complex issues regarding Aboriginal rights are better suited to civil actions rather than the regulatory proceedings. When deciding Aboriginal rights claims, a court must consider the 4-step test laid out in this case. 

Summary:

The Lax Kw’alaams are a traditional fishing people whose way of life included consuming fish, trading fish, and creating fish products for trade. The Lax Kw’alaams raised this history as support for a modern right to harvest and sell fish commercially. They asserted that these practices were integral features of their distinct Aboriginal culture. At the Supreme Court of Canada, their claim to a modern commercial fishing right was rejected, largely based on the finding of fact that the Lax Kw’alaams’ ancestors were not a trading people. 

Why this Case Matters: 

This case is different from many important Aboriginal rights cases. Here, the test that emerged was not framed in the context of a regulatory offence or prosecution. The Supreme Court of Canada laid out a 4-step test that a court should follow when deciding an Aboriginal rights claim in the context of a civil proceeding:

  • Characterize the “precise nature of the claim” based on the arguments and facts before the court.
  • Determine whether the applicants have proven both (i) the existence of the pre-contact practice, and (ii) that the practice was integral to the distinctive pre-contact Aboriginal society.
  • Determine whether the claimed modern right can be reasonably considered to be a continuation of the established pre-contact practice.
  • If an Aboriginal right to commercial trade is found to exist based on the previous three factors, courts should consider that, in the right circumstances, objectives such as the pursuit of economic and regional fairness are in the interest of all Canadians and, “more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.”

This decision was also important because it reiterated the importance of negotiating Aboriginal and treaty claims. The SCC said that if litigation is necessary, the complex issues are better suited to civil actions rather than regulatory proceedings. 

Go Deeper:

https://ualbertalaw.typepad.com/faculty/2018/10/lax-kwalaams.html

http://www.thecourt.ca/lax-kwalaams-indian-band-v-canada-scc-denies-aboriginal-claim-for-commercial-fishing-rights/

https://www.mccarthy.ca/en/insights/articles/supreme-court-canada-rejects-claim-aboriginal-right-commercially-fish-all-species

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