Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., [2011] N.R. TBEd. NO.033

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2011
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. NO.033;2011 SCC 56

Lax Kw'alaams Indian Band v. Can. (A.G.) (SCC) - Aboriginal fishing rights - Pre-contact practices

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. NO.033

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

(33581; 2011 SCC 56; 2011 CSC 56)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein, JJ.

November 10, 2011.

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, in a decision reported at 281 B.C.A.C. 88; 475 W.A.C. 88, dismissed the appeal. The Band appealed, asserting that the courts below erred in their approach to the characterization of the claim and consequently failed to analyse comprehensively the supporting evidence. Alternatively, the Band asserted, that the evidence established a variety of "lesser and included" Aboriginal rights, notably the right to a more limited commercial fishery consisting of a right to harvest and sell fish and fish products sufficient "to sustain their communities, accumulate and generate wealth and maintain and develop their economy". In the further alternative, they sought a still more limited Aboriginal right to a food, social and ceremonial fishery. The Band also supported their claims on the basis of alleged promises by government officials at the time of reserve creation in the 1880's.

The Supreme Court of Canada 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 refusing to make a declaration respecting "lesser and included rights" to harvest fish of all species for consumption and sale "to sustain their communities and generate wealth and maintain and develop their economy" - They also sought a declaration of entitlement to a s. 35(1) right to a food, social and ceremonial fishery - The Supreme Court of Canada affirmed the appeal's dismissal - The Band portrayed the categories of fishery as falling along a spectrum with a subsistence food fishery at the bottom end and a full commercial fishery at the top end - Where the "lesser" commercial-type fishery fell on that spectrum was unclear - The trial judge, by rejecting the claim to the "greater" commercial fishery on the basis that trade in fish other than eulachon was not integral to pre-contact society, was equally required to reject a "lesser" commercial right to fish "all species" - The judge's problem was not only with the commercial fishery's scale, but whether, and to what extent, "trade" in the pre-contact period could support any sort of modern commercial fishery, whether full scale or "lesser" in scope - Her conclusion that no trade in fish apart from eulachon grease was integral to the pre-contact society was fatal to the lesser commercial claim - In any event, the judge stated that neither party had led evidence regarding any pre-contact practice of sustaining the community through trade on any scale - Also, apart from the Attorney General's procedural objections on the issue being raised in final arguments, there remained the problem of what the judge was expected to say in the declaration of "lesser rights" - Nothing in the statement of claim's prayer for relief suggested a wording for the declaration and no precise wording for a declaration in that regard was proposed during argument here or in the courts below - The "lesser" claim bristled with difficulty which the trial record did not oblige the judge to resolve - The economic implications of even a "lesser" commercial fishery might be significant and the Crown was entitled to proper notice of what "declaration" it was supposed to argue about and to test the evidence directed to that issue - See paragraphs 60 to 68.

Courts - Topic 587

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

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - [See 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 (descendants of the Coast Tsimshian) 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 trial judge concluded that the Band's simplistic position that the ancient trade in eulachon grease had transmogrified to a modern day right to commercial fishing of salmon, halibut and all other marine and riverine species of fish, ignored the fundamental fact that the Coast Tsimshian fished for sustenance, not for trade - The judge then added the following proposition: "In my opinion, it would be stretching the concept of an evolved Aboriginal right too far to say that the Coast Tsimshian practice of trading in eulachon grease is equivalent to a modern right to fish commercially all species in their Claimed Territories." - The British Columbia Court of Appeal dismissed an appeal - The Supreme Court of Canada, in dismissing a further appeal, stated that if the words "is equivalent to" were substituted with "provides a sufficient historical basis for", it would agree with the trial judge's proposition - See paragraphs 29 and 30.

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, 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 Supreme Court of Canada affirmed the appeal's dismissal - Although the Band sought two distinct and separate declarations (the right to harvest and the right to sell on a commercial scale), the trial judge's fusion into a single claim for declaratory relief was appropriate - The two elements were inextricably tied together - If established, an Aboriginal right was not froze at contact, but was subject to evolution in terms of the subject matter and the method of its exercise - In terms of the mode of exercise, the courts had repeatedly recognized that fishing methods continued to evolve - However, evolution of the subject matter was more complex - There were quantitative and qualitative limits - The Band asserted that, even if pre-contact trade was limited to eulachon grease, the modern right should not be frozen but should be generalized and evolved to include all other fish species and fish products - That assertion ran counter to the judge's clear finding that the pre-contact community fished all species but did not trade in a significant way in species of fish or fish products other than eulachon - Extension of a modern right to all species would contradict the judge's view that only the "species specific" trade in eulachon grease was integral to the pre-contact society's distinctive culture - A general commercial fishery would represent a qualitatively different outcome and one that was out of all proportion to its original importance to the pre-contact economy - It could be assumed that the quantities of eulachon grease traded were small relative to the overall pre-contact fishing activity - To extrapolate a modern commercial fishery from that trade would also lack proportionality in quantitative terms relative to the overall pre-contact fishing activity - The judge concluded that such a transformation would not be evolution, but the creation of a different right - On that basis, the claim failed both the integrality and continuity requirements of the "distinctive culture" test set out in R. v. Van der Peet (D.M.) (S.C.C.) - Those findings were supported by the evidence - See paragraphs 48 to 59.

Fish and Game - Topic 963

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Effect of Constitution Act - [See Courts - Topic 584 and 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 Crown had an implied obligation to preserve their access to a commercial fishery on a preferential basis as a result of Crown promises, express or implied, made during the reserve allotment process - They asserted that the Crown's express grant of fishing station reserves to the Coast Tsimshian, when interpreted in light of the historical context and the Crown's policy, purpose, and representations made during the allotment process, gave rise at least to an implied right to commercial fishing opportunities for the Band - They asserted that the Crown's purpose behind allotting station reserves was to encourage coastal tribes to rely on the commercial fishery as their primary means of livelihood - The Supreme Court of Canada affirmed the dismissal of the appeal - The trial judge held that there was no promise and that the Crown, in the process of allocating reserves, never intended to grant the Band preferential access to the fishery - They were to be treated the same as other fishers - The judge found that that intention was made clear to the Band and that the Crown never made any undertaking by word or conduct to the contrary - The Band's assertions failed absent any substratum of relevant facts on which to base them - See paragraphs 69 to 72.

Indians, Inuit and Métis - Topic 6001

Aboriginal 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 British Columbia Court of Appeal dismissed an appeal - The Band appealed, asserting that, inter alia, the trial judge erred in her approach to characterizing its claim - The Band asserted that before a court could characterize a claimed aboriginal right, it had to first inquire and make findings about the pre-contact practises and way of life of the claimant group (the "commission of inquiry" approach) - The Supreme Court of Canada stated that apart from being inconsistent with the jurisprudence that called for the characterization of the claim as a first step, the commission of inquiry approach was not suitable in civil litigation, even in litigation conducted under rules generously interpreted in Aboriginal cases to facilitate the resolution in the public interest of the underlying controversies - The court rejected the approach for three reasons - First, it was illogical - The relevance of evidence was tested by reference to what was in issue - The statement of claim defined what was in issue - Second, it was contrary to authority - Third, it defied the relevant rules of civil procedures - Pleadings not only served to define the issues but gave the opposing parties fair notice of the case to be met, provided the boundaries and context for effective pretrial case management, defined the extent of the disclosure required and set the parameters of expert opinion - Clear pleadings minimized wasted time and could enhance prospects for settlement - The court agreed that in Aboriginal and treaty rights litigation, rigidity of form should not triumph over substance - However, the necessary flexibility could be achieved within the ordinary rules of practice - Amendments to pleadings were regularly made to conform with the evidence on terms that were fair to all parties - The trial judge here adopted the proposition that "he who seeks a declaration must make up his mind and set out in his pleading what that declaration is", but that otherwise sensible rule should not be applied rigidly in long and complex litigation - A case might look very different after a month of evidence - If necessary, amendments to the pleadings should be sought at trial - However, at the end of the day, a defendant had to be left in no doubt about precisely what was claimed - Here, no relevant amendments were sought to the prayer for relief at trial - See paragraphs 40 to 45.

Indians, Inuit and Métis - Topic 6001

Aboriginal rights - General - The Supreme Court of Canada stated that a court dealing with an aboriginal claim under s. 35(1) of the Constitution Act would appropriately proceed as follows: "1. First, at the characterization stage, identify the precise nature of the First Nation's claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, refine the characterization of the right claimed on terms that are fair to all parties. 2. Second, determine whether the First Nation has proved, based on the evidence adduced at trial: (a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and (b) that this practice was integral to the distinctive pre-contact Aboriginal society. 3. Third, determine whether the claimed modern right has a reasonable degree of continuity with the 'integral' pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. ... the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same. 4. Fourth, and finally, in the event that an Aboriginal right to trade commercially is found to exist, the court, when delineating such a right should have regard to what was said by Chief Justice Lamer in Gladstone (albeit in the context of a Sparrow justification), as follows: 'Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives 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.'" - See paragraph 46.

Indians, Inuit and Métis - Topic 6005

Aboriginal rights - Nature and scope of - [See Courts - Topic 584 and both Fish and Game - Topic 804 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - Evidence and proof - [See both Indians, Inuit and Métis - Topic 6001 ].

Practice - Topic 1302

Pleadings - General principles - Purpose of pleadings - [See first Indians, Inuit and Métis - Topic 6001 ].

Practice - Topic 1308.1

Pleadings - General principles - Prayers for relief - [See Courts - Topic 584 and first Indians, Inuit and Métis - Topic 6001 ].

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. 28].

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

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. 32].

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. 39].

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. 39].

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, refd to. [para. 39].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 44].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 39].

Ahousaht Indian Band et al. v. Canada (Attorney General) et al. (2011), 305 B.C.A.C. 191; 515 W.A.C. 191; 2011 BCCA 237, refd to. [para. 57].

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, refd to. [para. 71].

Counsel:

John R. Rich, F. Matthew Kirchner and Lisa C. Glowacki, for the appellants;

Cheryl J. Tobias, Q.C., Sharlene Telles-Langdon and James M. Mackenzie, for the respondent, the Attorney General of Canada;

Patrick G. Foy, Q.C., for the respondent, Her Majesty The Queen in Right of the Province of British Columbia;

Malliha Wilson and Michael E. Burke, for the intervener, the Attorney General of Ontario;

Maria Morellato, Q.C., and Cheryl Sharvit, for the intervener, the Metlakatla Band;

J. Keith Lowes, for the interveners, the B.C. Wildlife Federation and the B.C. Seafood Alliance;

David M. Robbins and Jay Nelson, for the intervener, the Gitxaala Nation;

Robert J.M. Janes and Sarah E. Sharp, for the intervener, the Te'Mexw Treaty Association.

Solicitors of Record:

Ratcliff & Company, North Vancouver, British Columbia, for the appellant;

Department of Justice, Vancouver, British Columbia, for the respondent, Attorney General of Canada;

Attorney General of British Columbia, Victoria, British Columbia, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia;

Attorney General of Ontario, Toronto, Ontario, for the Intervenor, the Attorney General of Ontario;

Mandell Pinder, Vancouver, British Columbia, for the intervenor, the Metlakatla Band;

J. Keith Lowes, Vancouver, British Columbia, for the intervenors, the B.C. Wildlife Federation and the B.C. Seafood Alliance;

Woodward & Company, Victoria, British Columbia, for the intervenor, the Gitxaala Nation;

Janes Freedman Kyle Law Corporation, Victoria, British Columbia, for the intervenor, the Te'Mexw Treaty Association.

This appeal was heard by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. Binnie, J., delivered the following judgment for the court in both official languages on November 10, 2011.