Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., 2009 BCCA 593

• Judge: Newbury, Chiasson and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 23, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 593;(2009), 281 B.C.A.C. 88 (CA)

Lax Kw'alaams Indian Band v. Can. (A.G.) (2009), 281 B.C.A.C. 88 (CA);

    475 W.A.C. 88

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JA.017

The 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 (appellants/plaintiffs) v. The Attorney General of Canada and Her Majesty the Queen in Right of the Province of British Columbia (respondents/defendants)

(CA036098; 2009 BCCA 593)

Indexed As: Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al.

British Columbia Court of Appeal

Newbury, Chiasson and Bennett, JJ.A.

December 23, 2009.

Summary:

The Lax Kw'alaams Indian Band sued for, inter alia, a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" (defined to mean all species of fish, shellfish and aquatic plants) in their tribal territories and to sell them on a commercial scale in Canada. Alternatively, the Band asserted that Canada had breached its trust-like or fiduciary obligation to them by restricting or denying their ability to harvest fisheries resources from the tribal territories and from fisheries resource sites for commercial purposes. The question of aboriginal title (as opposed to other rights) and all other claims against the Province of British Columbia were severed.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. B64, dismissed this part of the action. The Band appealed.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 584

Judges - Duties - To determine issues - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band appealed, asserting that the trial judge erred in failing, because of a misapprehension of the pleadings, to consider an Aboriginal right to harvest and sell fish for the purpose of sustaining their community and in failing to find such a right by "not considering potlatch distribution of fish as a basis for the modern right" - The Band asserted that having sought a declaration of entitlement to harvest and sell fish on a commercial scale, the judge had to consider all lesser rights that might be subsumed in trade on a commercial scale - The band also referred to the phrase "sustain the community" used in their statement of claim - The British Columbia Court of Appeal rejected the argument - The trial judge was of the view that, given the late stage at which the issue was raised and in light of the pleadings and the course that the trial had taken, it was too late for the Band to seek such a lesser right - That was a judgment call which the judge was uniquely positioned to make - She was better able to gauge what prejudice, if any, the defendant Canada would suffer if she acceded to the Band's late articulation of an intermediate right - She knew what the real issue was - See paragraphs 58 to 63.

Courts - Topic 584

Judges - Duties - To determine issues - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band appealed, asserting that the trial judge erred in holding that an Aboriginal right to fish for food, social and ceremonial purposes was never placed before her as an issue at trial until final submissions - They relied on various references in the pleadings to "consumption" and "sale" or "trade" - The British Columbia Court of Appeal stated that it was the court's understanding that the Band's allegation was that the trial judge erred as a matter of law in her characterization of the potlatch exchanges and distributions of fish as a practice that was qualitatively different from the "trade in all species of fish on a scale akin to commercial" that was the focus of the trial - It was difficult to separate that submission from the Band's assertions in connection with the commercial trade issue - Setting that argument aside, however, there was no basis to find that the trial judge erred in declining to consider an Aboriginal right to harvest Fisheries Resources for food, social and ceremonial purposes as a separate and intermediate claim, given the pleadings and the course of the trial as seen by the trial judge - A court should not have to try and piece together various obscure references in a pleading in order to discern what was being sought - See paragraphs 64 and 65.

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - [See both Courts - Topic 584 ].

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - The Lax Kw'alaams Indian Band unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band appealed, asserting that the trial judge erred by, inter alia, incorrectly applying a single-species approach to defining their fishing rights - The British Columbia Court of Appeal rejected the assertion - The Band's broad claim was based on a practice of trading in eulachon grease for certain specific purposes integral to the culture of the Coast Tsimshian (the Band's ancestors) - The trial judge found that the evidence supported "some form of loosely termed trade" in luxury goods, including eulachon oil and grease - She accepted that an Aboriginal right, once proven, was not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the right was based - However, the evidence of the activity proven here (the "loosely-termed trade") was tied specifically to eulachon grease and was found not to be related to the (subsistence) harvesting of other fish - To describe the practice as "harvesting fish", or "trading in fish" would not accurately describe it, nor capture its "aboriginal specificity" - The judge might have misspoken when she stated that an Aboriginal right "is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the Aboriginal right is based." - It was a question of the specific practice in each case - The particular practice here was tied to one species of fish and one product traded in a particular manner - See paragraphs 33 to 40.

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band's claim had been based on a practice of trading in eulachon grease for purposes integral to the Coast Tsimshian culture - The Band appealed, asserting that the trial judge failed to consider the eulachon fishery in the context of the pre-contact Coast Tsimshian way of life - The British Columbia Court of Appeal stated that the assertion overlooked the distinction made by the trial judge between Coast Tsimshian activities respecting eulachon and the subsistence harvesting of salmon, halibut and other fish - Most importantly, while Coast Tsimshian consumed eulachon and eulachon grease, they carried out the eulachon fishery for additional purposes - They processed the eulachon into a product (grease or oil) that was prized for its preservative purposes - Trade in eulachon grease was found to be integral to "potlatch exchange, wealth, rank, etc." and was thus integral to the distinctive Coast Tsimshian society - That trade was unlike commercial trade - Material goods or wealth became valuable by being given away with an expectation of a reciprocal gift - Virtually no trade or exchange took place with other fish - That distinction was not arbitrary or unprincipled - It recognized the particular Coast Tsimshian pre-contact way of life - See paragraphs 41 to 43.

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band's claim had been based on a practice of trading in eulachon grease for purposes integral to the Coast Tsimshian culture - The Band appealed, asserting that the trial judge failed to consider the Aboriginal right in modern day circumstances - The Band asserted that the eulachon fishery and trade in eulachon grease was an integral part of the pre-contact Coast Tsimshian economy, which was based on fishing and that the economy evolved following contact into a modern fishing economy based on trade and sale in other species - The British Columbia Court of Appeal stated that, aside from the focus on the economy as opposed to culture or way of life, the Band's assertion disregarded the distinction made by the judge between the purpose and scale of the trade in eulachon grease, and the very rare exchanges in other fish - The trade that developed in salmon was found to be a prime example of an activity that resulted solely as a response to European influences - The judge refused to find that the practice of trading in eulachon grease was "equivalent to a modern right to fish commercially all species" - However, the question was not whether the two were "equivalent", but whether the commercial fishery sought by the Band could be said to be the "logical evolution" of the traditional practices with respect to eulachon grease - There was no basis for interfering with the trial judge's conclusion that there did not exist, prior to European contact, a practice of trading in fish and fish products that could be said to be integral to their distinctive society and that could be said to be the precursor of a modern commercial fishery - See paragraphs 44 to 48.

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band appealed - An intervenor asserted that the template for determining the existence of Aboriginal rights had been substantially changed by a new "standard of life" approach that was first enunciated in dissent by McLachlin J. (as she then was) in the trilogy, first "took root" in R. v. Marshall (S.F.) (S.C.C.) (1999), and was fully adopted in Mitchell v. Minister of National Revenue (S.C.C.) - The intervenor asserted the reasoning in Marshall signalled a refined approach to characterizing the extent of trading based rights by way of the purpose (i.e., standard of life) served by the trading practice, replacing a "murky scale of trade" basis - The British Columbia Court of Appeal rejected the argument - The categorization of trade, or any other activity in question, according to whether it was aimed at feeding oneself or one's people, obtaining items to be used for ceremonial occasions, accumulating private or communal wealth, or participation in a large-scale market, was concerned with purpose, and was consistent with a principled approach to Aboriginal culture - See paragraphs 66 to 70.

Fish and Game - Topic 809

Indian, Inuit and Métis rights - General principles - Aboriginal or treaty rights - Proof of - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) unsuccessfully sought a declaration that they had existing Aboriginal rights under s. 35(1) of the Constitution Act to harvest all species of "Fisheries Resources" in their tribal territories and to sell them on a commercial scale - The Band appealed, asserting that the trial judge incorrectly analyzed the geographical element of their claims - The assertion flowed from the judge's observations that it was "not clear" if the Coast Tsimshian could fish for eulachon in the Nass River without the permission of the Nisga'a - The Band asserted that evidence for such a finding had to be "clear convincing and cogent" - The British Columbia Court of Appeal stated that it read cases dealing with "historical" allegations of serious misconduct, simply as requiring sufficiently cogent evidence to meet the usual civil standard - In the context of Aboriginal law, the Supreme Court of Canada in Mitchell v. Minister of National Revenue emphasized that although Aboriginal claimants need not establish a pre-contact practice by conclusive or direct evidence, the pre-contact practices accepted by the court in prior cases had been proven by "clear evidence" - Despite saying that it was "not clear" the trial judge determined the issue - She correctly noted that while historical evidence "should not be undervalued simply because [it] does not conform precisely to the evidentiary standards that would be applied in a private law case, neither should it be tasked to carry more weight than it can reasonably support" - The evidence supported a finding regarding the necessity for "limited permission" from the Nisga'a to take eulachon from the Nass River prior to contact - If the judge denied the claim solely on the ground that the Coast Tsimshian did not occupy or use the Nass River fisheries exclusively, she erred - However, that was not the case - See paragraphs 49 to 57.

Fish and Game - Topic 963

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Effect of Constitution Act - [See first, second and third Fish and Game - Topic 804 ].

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - Fiduciary duty - The Lax Kw'alaams Indian Band (descendants of the Coast Tsimshian) asserted a constitutionally protected right to fish commercially - Alternatively, the Band sought a declaration that Canada had breached its trust-like or fiduciary obligation to them by restricting or denying their ability to harvest fisheries resources for commercial purpose - The trial judge dismissed the action - With respect to the request for alternative relief, the judge found that the Band had not established any promise, express or implied, that the Lax Kw'alaams would not be subject to "the same limits and restrictions on fishing as other fishers; in fact the opposite has been established." - In those circumstances, the judge concluded that the Band had not established that the Crown had acted dishonourably - The Band appealed, asserting that the trial judge misconstrued their argument - The Band asserted that they relied on a promise by the Crown that they would "be kept in the fishing business alongside other fishers" and that in return for the promise they gave up land claims and accepted small reserves that were useful only as fishing stations - On that basis, they had made their alternative request for relief - The British Columbia Court of Appeal stated that, given the trial judge's findings of fact, it could not see how either of the claims could succeed - Once a claim to an existing Aboriginal right protected by s. 35(1) of the Constitution Act failed, it was not open to the Aboriginal group to assert a fiduciary duty on the part of the Crown to found the same right, nor could it be inconsistent with the honour of the Crown not to do so - The Band's assertion of a constitutionally protected right to fish commercially failed - There was therefore no cognizable right on the Band's part nor anything approaching a "private law duty" owed to them by the Crown which could give rise to rights that were different from the rights of other Canadians - Nor was there a concern with an assumption by the Crown of a "high degree of discretionary control" over the lives of the Lax Kw'alaams - See paragraphs 71 to 78.

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - [See all Fish and Game - Topic 804 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See Fish and Game - Topic 809 ].

Cases Noticed:

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 4].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 4].

R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269, refd to. [para. 4].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, affing. (2004), 273 N.B.R.(2d) 93; 717 A.P.R. 93; 242 D.L.R.(4th) 433 (C.A.), refd to. [paras. 4, 34].

Canadian Bar Association v. British Columbia et al. (2008), 252 B.C.A.C. 76; 422 W.A.C. 76; 290 D.L.R.(4th) 617; 2008 BCCA 92, refd to. [para. 6].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 6].

Strauss v. Jarvis et al. (2007), 249 B.C.A.C. 131; 414 W.A.C. 131; 76 B.C.L.R.(4th) 90; 2007 BCCA 605, refd to. [para. 6].

Tsilhqot'in Nation v. British Columbia, [2008] 1 C.N.L.R. 112; 2007 BCSC 1700, refd to. [para. 14].

Bliss v. Smallburgh Rural District Council, [1964] 2 All E.R. 543 (C.A.), refd to. [para. 14].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 33].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 35].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 44].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 44].

R. v. Marshall (S.F.) et al. (2001), 191 N.S.R.(2d) 323; 596 A.P.R. 323 (Prov. Ct.), refd to. [para. 46].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 297 D.L.R.(4th) 193; 2008 SCC 53, consd. [para. 50].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, consd. [para. 50].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, consd. [para. 60].

R. v. Van der Peet (D.M.) (1993), 29 B.C.A.C. 209; 48 W.A.C. 209; 80 B.C.L.R.(2d) 75; 83 C.C.C.(3d) 289 (C.A.), refd to. [para. 60].

Ahousaht Indian Band et al. v. Canada (Attorney General) et al., [2009] B.C.T.C. Uned. 1494; 2009 BCSC 1494, refd to. [para. 62].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 62].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 74].

Authors and Works Noticed:

Mitchell, Donald, and Donald, Leland, Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery, generally [para. 42]; p. 657 [para. 1].

Counsel:

J.R. Rich, F.M. Kirchener and L.C. Glowacki, for the appellants;

J.M. Mackenzie, S. Vigneau and T.E. Bean, for the respondents, Attorney General of Canada;

J.K. Lowes, for the intervenors, BC Wildlife Federation, BC Seafood Alliance and Pacific Salmon Harvesters Society;

D.M. Robbins, for the intervenor, Gitxaala Nation.

This appeal was heard at Vancouver, British Columbia, on October 26 to 29, 2009, by Newbury, Chiasson and Bennett, JJ.A. of the British Columbia Court of Appeal. Newbury, J.A., delivered the following reasons for the Court of Appeal on December 23, 2009.