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

Lax Kw'alaams Indian Band v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2011-11-10
Neutral citation
2011 SCC 56
Report
[2011] 3 SCR 535
Case number
33581
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Aboriginal law
Civil procedure
Notes
SCC Case Information: 33581
Decision Content
SUPREME COURT OF CANADA
Citation: Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535
Date: 20111110
Docket: 33581
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
Appellants
and
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
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 74)
Binnie J. (McLachlin C.J. and LeBel, Deschamps, Abella, Charron and Rothstein JJ. concurring)
Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535
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
Indexed as: Lax Kw’alaams Indian Band v. Canada (Attorney General)
2011 SCC 56
File No.: 33581.
2011: February 17; 2011: November 10.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Aboriginal law — Aboriginal rights — Fishing — Nature of pre‑contact practice — Evolution of pre‑contact practice — First Nations claiming rights to commercial harvesting and sale of all species of fish within their traditional waters — Whether pre‑contact trade in specific fish product could evolve into modern commercial fishery — Constitution Act, 1982, s. 35(1) .
Civil procedure — Pleadings — Aboriginal rights litigation — Whether Aboriginal rights claim should be characterized based on pleadings or a broader enquiry — Whether claim for declaration of “lesser” rights was properly presented in pleadings.
Aboriginal law — Fiduciary duty — Whether historical record supported existence of fiduciary duty to grant claimants right to modern commercial fishery.
This appeal involves the claim of the Lax Kw’alaams and other First Nations (“Lax Kw’alaams”), whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena rivers, to the commercial harvesting and sale of “all species of fish” within their traditional waters. Such an Aboriginal fishery would be within the protection of s. 35(1) of the Constitution Act, 1982 . The basis of the pre‑contact society’s culture and sustenance was the fishery. It had a subsistence economy with some trade — primarily a gift exchange between kin at feasts and potlatches or the exchange of luxury goods. The harvesting and consumption of salmon, halibut, herring spawn, seaweed, shellfish, and eulachon were integral to its distinctive culture, but trade in fish or fish products other than the grease derived from the smelt‑like species called the eulachon or candle fish (because when dried it could be burned like a candle) was held not to be integral to the distinctive culture of the pre‑contact society. Eulachon grease was a preservative for perishable food stuffs such as berries, and much valued for that purpose. Such other trade in fish or fish products as took place was described by the trial judge as “low volume, opportunistic, irregular . . . and incidental to fundamental pre‑contact . . . kinship relations”.
The Lax Kw’alaams claimed not only the right to the commercial harvesting and sale of all species of fish within their traditional waters but asserted that the Crown has a fiduciary duty in that respect flowing from promises made in the reserve allocation process in the 1870s and 1880s. Finally, towards the end of the trial, they claimed what they described as lesser Aboriginal rights, including a right to sufficient fish which, “when converted to money”, would enable them to “develop and maintain a prosperous economy”, and a right to a food, social and ceremonial fishery.
The trial judge was not persuaded that the pre‑contact customs, practices, and traditions supported the claimed Aboriginal rights to commercial activities and dismissed the claims. The Court of Appeal agreed and dismissed the appeal.
Held: The appeal should be dismissed.
The practices, customs and traditions of the pre‑contact society do not provide an evidentiary springboard to a constitutionally protected Aboriginal right to harvest and sell all varieties of fish in a modern commercial fishery. The pre‑contact society was not a trading people, except with respect to eulachon grease. As the trial judge found, such sporadic trade as took place in other fish products was peripheral to the pre‑contact society and did not define what made the pre‑contact society what it was.
The Lax Kw’alaams contend that the courts below erred in their approach to the characterization of the claim, and consequently failed to analyse comprehensively the evidence in its support. In their view “before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre‑contact practices and way of life of the claimant group”. This is not correct. When dealing with a s. 35(1) claim, the court should begin by characterizing the claimed Aboriginal right based on the pleadings. Making findings about the pre‑contact way of life of the claimant group before characterizing the claimed right — the “commission of inquiry” approach — is not suitable in civil litigation, even in Aboriginal cases, where procedural rules are generously interpreted to facilitate the resolution of the underlying controversies in the public interest. Following that model would be illogical and contrary to authority, and would defy the relevant rules of civil procedure. Although the necessary flexibility can be achieved within the ordinary rules of practice (including the amendment of pleadings), a defendant must be left in no doubt about precisely what is claimed. Having characterized the claim, the court should determine whether the First Nation has proved the existence of the pre‑contact practice, tradition or custom advanced in the pleadings and that this practice was integral to the distinctive pre‑contact society. Then, taking a generous though realistic approach, the court should determine whether the claimed modern right has a reasonable degree of continuity with the integral pre‑contact practice. Finally, if the claimed right is found to exist, it should be delineated with regard to conservation goals and other relevant objectives.
In this case, the attempt to build a modern commercial fishery on the narrow support of a limited ancestral trade in eulachon grease lacks sufficient continuity and proportionality. While an Aboriginal right is subject to evolution both in terms of the subject matter and the method of its exercise, the claim in this case to a general commercial fishery would create a right qualitatively and quantitatively different from the pre‑contact trade in eulachon grease. Qualitatively, trade in fish and fish products other than eulachon grease was peripheral to the pre‑contact society. It is not enough to show that some element of trade was part of the pre‑contact way of life if it was not distinctive or integral to that way of life. A general commercial fishery would represent an outcome qualitatively different from the pre‑contact activity on which it would ostensibly be based, and out of all proportion to its original importance to the pre‑contact economy. Quantitatively, the short eulachon season and the laborious extraction method was likely of limited value relative to the overall pre‑contact fishing activity of the industrious and productive pre‑contact people.
As to the claims to lesser rights, the conclusion that trade in fish apart from eulachon grease was not integral to the pre‑contact society was as fatal to these claims as it was to the greater commercial claim. Further, had the claim to lesser rights been justified, it bristled with difficulty. The Crown was entitled to proper notice of what was being sought and to test the evidence directed to that issue, but the focus of the pleadings and evidence was on the claim to a commercial fishery, not the lesser rights. It was not clear what the claim meant, how it would be implemented, what standard of prosperity was sought, or the basis on which it would be quantified. All of these matters had far‑reaching implications for fisheries management.
As to the claim to an Aboriginal right to a fishery for food, social and ceremonial purposes, the Lax Kw’alaams presently hold communal Aboriginal licences in these respects. Their entitlement seems not to be contentious, and, as courts generally do not make declarations in the absence of a live controversy, it was within the trial judge’s discretion to refuse to make such a declaration.
The arguments based on fiduciary duty or the honour of the Crown necessarily fail in the absence of any substratum of relevant facts on which to base them. The Crown had not made express or implied promises of any preferential access to the commercial fishery, and had made its intention to treat Aboriginal fishers in the same manner as other fishers clear.
Cases Cited
Distinguished: R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; R. v. Pamajewon, [1996] 2 S.C.R. 821; referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; R. v. Marshall, [1999] 3 S.C.R. 533; Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237, 19 B.C.L.R. (5th) 20; R. v. Marshall, [1999] 3 S.C.R. 456.
Statutes and Regulations Cited
Constitution Act, 1982, s. 35(1) .
Supreme Court Civil Rules, B.C. Reg. 168/2009.
Authors Cited
Mitchell, Donald, and Leland Donald. “Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery” (2001), 43 Anthropologica 19.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Chiasson and Bennett JJ.A.), 2009 BCCA 593, 281 B.C.A.C. 88, 475 W.A.C. 88, 314 D.L.R. (4th) 385, [2010] 1 C.N.L.R. 278, [2009] B.C.J. No. 2556 (QL), 2009 CarswellBC 3479, affirming a decision of Satanove J., 2008 BCSC 447, [2008] 3 C.N.L.R. 158, [2008] B.C.J. No. 652 (QL), 2008 CarswellBC 735. Appeal dismissed.
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.
The judgment of the Court was delivered by
[1] Binnie J. — This appeal involves the claim of the Lax Kw’alaams First Nation and other First Nations listed in the Appendix to these reasons (herein collectively referred to as “Lax Kw’alaams”), whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena rivers, to the commercial harvesting and sale of “all species of fish” within their traditional waters. Such an Aboriginal fishery would be within the protection of s. 35(1) of the Constitution Act, 1982 , subject only to such limits as can be justified under the test in R. v. Sparrow, [1990] 1 S.C.R. 1075. The commercial fisheries claim was part of a larger action asserting Aboriginal title, but the Aboriginal title issue was severed and has yet to go to trial.
[2] The trial judge rejected the commercial fisheries claim on the basis that, despite a year of factual and expert evidence, she was not persuaded that the Coast Tsimshian people’s pre-contact customs, practices, and traditions supported such an Aboriginal right (2008 BCSC 447, [2008] 3 C.N.L.R. 158). To the limited extent that the Coast Tsimshian traded in fish and fish products, such trade was specific to a product derived from a single species, the eulachon. Trade in fish more generally was not integral to their distinctive society and thus did not provide a foundation for a s. 35(1) Aboriginal right to a modern wealth-generating “industrial” fishery. This conclusion was upheld by the British Columbia Court of Appeal (2009 BCCA 593, 281 B.C.A.C. 88). The Lax Kw’alaams say that the courts below erred in their approach to the characterization of the claim, and consequently failed to analyse comprehensively the evidence in its support.
[3] In the alternative, the Lax Kw’alaams argue that, quite apart from an Aboriginal right to harvest and sell fish on a full commercial scale, the evidentiary record establishes a variety of “lesser and included” Aboriginal rights, notably the right to a more limited commercial fishery (based in part on the traditional potlatch exchange) 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” (Second Amended Statement of Claim, at para. 31). They seek, in the further alternative, a still more limited Aboriginal right to a food, social and ceremonial fishery. The British Columbia Court of Appeal decided, having regard to the state of the pleadings and the way in which the 126-day trial had unfolded, that the trial judge’s decision not to deal with “‘lesser’ or ‘included’” rights was a “judgment call” which she was entitled to make. In the trial judge’s view, the trial from first to last had been about the right to a full-blown commercial fishery. Everything else was peripheral and not fully presented.
[4] The Lax Kw’alaams also support their claims on the basis of alleged promises by government officials (thus implicating the honour of the Crown) at the time of reserve creation in the 1880s. This, too, was rejected by the trial judge on the basis that no such promises had ever been made. Her finding of fact in this respect was also accepted by the British Columbia Court of Appeal.
[5] For the reasons that follow, I would uphold the conclusion of the Court of Appeal on all issues and dismiss the appeal.
I. Overview
[6] The trial judge acknowledged that prior to contact with Europeans, the Coast Tsimshian largely sustained themselves by an extensive fishery. They did not, however, engage in any significant trade in fish or fish products except for a grease derived from a smelt-like species called the eulachon or candle fish (because when dried it could be burned like a candle). Such other trade in fish or fish products as took place was described by the trial judge as “low volume, opportunistic, irregular . . . and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society” (para. 496).
[7] Eulachon were harvested for a few weeks every spring at the Nass River. The trial judge held:
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. [para. 501]
A key issue in the case is therefore the question of continuity between the Coast Tsimshian people’s pre-contact practice of rendering eulachon grease and trading the product thereby generated, on the one hand, and, on the other hand, their claim to a contemporary commercial fishery of all species for sale to non-Aboriginal as well as Aboriginal members of the public. The legal requirement for continuity between ancestral practices, customs and traditions and the modern claimed Aboriginal right incorporates, of course, an allowance for logical evolution within limits. This case, in part, is about where such limits should be drawn.
[8] The Lax Kw’alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) of changing times. However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right. It was in part the lack of continuity and proportionality in the Lax Kw’alaams’ attempt to build a full-blown twenty-first century commercial fishery on the narrow support of an ancestral trade in eulachon grease that concerned the trial judge. Her concern, in my view, was well founded.
[9] The trial judge held that the focus of the pleadings and evidence was on the Lax Kw’alaams’ claim to a commercial fishery. Their later argument about “lesser and included rights” seems to have been borrowed hastily from criminal law and did not surface at trial in any significant way until the final argument. The trial judge considered the defendant governments to have been prejudiced by what she saw as the Lax Kw’alaams’ belated attempt to recast the claim.
[10] The argument about “lesser and included rights” is more procedural than substantive in nature, although, as will be discussed, the basis of the trial judge’s rejection of the larger commercial right seems to me largely to dispose of the Lax Kw’alaams’ claim to a lesser commercial right as well.
[11] The courts (including this Court) have long urged the negotiation of Aboriginal and treaty claims. If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings. In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues. Such potential advantages are dissipated, however, if the ordinary rules governing civil litigation, including the rules of pleading, are not respected. It would not be in the public interest to permit a civil trial to lapse into a sort of free-ranging general inquiry into the practices and customs of pre-contact Aboriginal peoples from which, at the end of the day, the trial judge would be expected to put together a report on what Aboriginal rights might, if properly raised in the pleadings, have been established.
[12] At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel. Litigation is invariably preceded by extensive historical research, disclosure, and negotiation. If negotiations fail, the rules of pleading and trial practice are well understood. Tactical decisions are made on all sides. It is true, of course, that Aboriginal law has as its fundamental objective the reconciliation of Canada’s Aboriginal and non-Aboriginal communities, and that the special relationship that exists between the Crown and Aboriginal peoples has no equivalent to the usual courtroom antagonism of warring commercial entities. Nevertheless, Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well-being of both. The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982 , must be determined after a full hearing that is fair to all the stakeholders.
[13] As to the “honour of the Crown” and “fiduciary duties” branches of the Lax Kw’alaams’ claim, the trial judge held that no factual basis had been laid for such relief. She held that there was no relevant unilateral promise by the Crown in the reserve allocation process or otherwise, let alone a treaty. Accordingly, there was no conduct by the Crown by which the obligations claimed to exist could be generated. The honour of the Crown is a general principle that underlies all of the Crown’s dealings with Aboriginal peoples, but it cannot be used to call into existence undertakings that were never given.
[14] Finally, and somewhat belatedly, the Lax Kw’alaams brought to the forefront a claim to an Aboriginal right to a fishery for food, social and ceremonial purposes. The Lax Kw’alaams presently hold federal fisheries licences for these purposes. Their entitlement seems not to be a contentious issue. It was therefore not an issue of significance in the present litigation. Courts generally do not make declarations in relation to matters not in dispute between the parties to the litigation and it was certainly within the discretion of the trial judge to refuse to do so here.
II. Facts
A. Historical Background
[15] The Lax Kw’alaams First Nation consists of the descendants of an ancient “fishing people” comprising the several tribes or houses of the Coast Tsimshian. In their traditional territories and fishing sites along the northwest coast of British Columbia salmon and other fish were in abundant supply. The Coast Tsimshian were organized into a sophisticated society characterized by complex relationships based on “rank” and kinship. Their “seasonal round” of activity was determined largely by the availability and location of salmon, halibut, herring spawn, seaweed, shellfish and the eulachon. According to the trial judge, the salmon and eulachon
were revered in ritual, endowed with supernatural qualities in the halait, or adaawx, and formed the core of the subsistence economy. All other Fish Resources pale by comparison. [para. 225]
[16] The trial judge found that pre-contact (said to be around 1793) “the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption, was an integral part of their distinctive culture” (para. 494). The Coast Tsimshian people had existed primarily “within a subsistence economy” although “some form of loosely termed trade” prior to contact had been shown (para. 495). Such trade had involved “primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium [shellfish gathered from the ocean floor] and eulachon grease” (ibid.).
[17] On appeal, the eulachon became central to the claim for an Aboriginal right to a modern commercial fishery. These fish were harvested for a few weeks in late winter (primarily, if not entirely, at locations along the Nass River) and were eaten fresh, smoked or dried for later use, or rendered into oil or grease by a process described as follows:
Eulachon were stored in pits dug into the ground or in big cedar plank bins for a little over a week. They were then boiled in large wood vats — sometimes dugout canoes were pressed into service — and the freed oil was skimmed from the surface for storage in wooden boxes or the bulbs and long hollow stems of kelp. When cooled to around 10ºC the oil firms to a butterlike consistency and does not liquefy again until the temperature has been raised to about 21ºC.
(Court of Appeal reasons, at para. 1, citing D. Mitchell and L. Donald, “Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery” (2001), 43 Anthropologica 19, at p. 21.)
The grease thus produced was exchanged between kin at feasts and potlatches along with other “luxury goods” (Court of Appeal reasons, at para. 2). Eulachon grease was a preservative for perishable food stuffs such as berries, and much valued for that purpose.
[18] Almost a century later, in the 1880s, the Lax Kw’alaams were allotted reserves and fishing stations within their traditional territories. They allege that quite apart from their claims to s. 35(1) Aboriginal rights, various government officials at that time made promises about access to the commercial fishery that implicate the honour of the Crown giving rise to the Crown’s trust-like or fiduciary duty to ensure that the Lax Kw’alaams have access to the commercial fishery. At issue is the significance to be attached to the “explanations” given to the Coast Tsimshian by Reserve Commissioner Peter O’Reilly, who began setting apart reserves on the Northwest Coast in 1881, as follows:
I carefully explained to the Nass and Tsimpsean Indians, that in assigning to them the several stations on the coast and tidal waters, no exclusive right of fishing was conveyed, but that they would, like their white brethren, be subject in every respect to the laws and regulations set forth in the Fishery Acts of the Dominion. [Emphasis in original.]
(P. O’Reilly, Indian Reserve Commissioner to Superintendent-General of Indian Affairs, April 8, 1882. Copy in Annual Report of the Department of Indian Affairs for the Year Ended 31st December, 1882 (1883), 88, at p. 91.)
[19] At all relevant times the Lax Kw’alaams held a communal Aboriginal licence from the federal Department of Fisheries and Oceans to harvest fish for food, social, and ceremonial purposes.
B. The Pleadings
[20] As the state of the pleadings plays an important role in the outcome of this appeal, it is important to set out the essential details. In their Second Amended Statement of Claim, the Lax Kw’alaams asserted, at para. 28, that each of the ancestral coastal Tsimshian tribes was “a distinctive aboriginal society engaged in a sophisticated economy based predominantly on the harvesting, managing, processing, consuming and trading of all species of fish, shellfish and aquatic plants . . . that were available . . . from time to time within their Tribal Territories”. Paragraphs 30-31 pleaded:
The harvesting, managing, processing, consuming and trading of Fisheries Resources were central features of each Tribe’s economy and were customs, practices or traditions that were integral to the distinctive aboriginal culture of each Tribe at and before Contact. . . .
The Lax Kw’alaams Band, or, in the alternative, each Allied Tsimshian Tribe, holds existing aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for consumption and sale to sustain their communities, accumulate and generate wealth and maintain and develop their economy. [Emphasis added.]
[21] In response to a request by the Attorney General of Canada for particulars as to what was meant by this pleading, counsel for the Lax Kw’alaams stated that
they have an aboriginal right or aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for their own consumption or to sell to others in order to acquire money, goods or services to sustain the Lax Kw’alaams communities economically, to generate economic growth in those communities, and to allow persons in the community to accumulate and generate wealth. [Emphasis added; Amended Response, at para. 27(b).]
These particulars did not, I think, add much specificity to the pleadings, but the issue was not pursued by the Crown.
[22] It was further asserted that the accumulation of wealth in the Coast Tsimshian society had depended on trade, and that fisheries resources were the essential trade item by which tribes and house groups acquired wealth. The “accumulation and redistribution of wealth to acquire or retain a high rank” within Tsimshian society were said in the claim to be integral features of their distinctive Aboriginal culture (Second Amended Statement of Claim, at para. 49).
[23] Paragraph 62 of the Second Amended Statement of Claim is somewhat repetitious of paras. 30-31. The Lax Kw’alaams asserted an Aboriginal right “to harvest, manage, and sell on a commercial scale Fisheries Resources and [processed] Fish Products . . . for the purpose of sustaining their communities, accumulating and generating wealth, and maintaining their economy” (emphasis added).
[24] The Lax Kw’alaams stated that by “commercial scale” they meant the exchange of “Fisheries Resources for money, goods or services, on a large scale” and that they had used the words “selling” and “trading” interchangeably (see Amended Response, at paras. 54(d) and (f)).
[25] With respect to the relief claimed, the Lax Kw’alaams sought:
(a) a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to harvest all species of Fisheries Resources within the constitutional jurisdiction of Canada in the Tribal Territories;
(b) a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to sell on a commercial scale all species of Fisheries Resources within the constitutional jurisdiction of Canada that they harvest from the Tribal Territories; [Emphasis added; Second Amended Statement of Claim, at para. 95.]
[26] The trial judge combined the two pleas into one paragraph, characterizing the principal relief sought as follows:
The relief sought by the plaintiffs includes Declarations that:
a. the plaintiffs have an existing Aboriginal right within the meaning of s. 35(1) of the Constitution Act of [1982] to harvest and sell on a commercial scale all species of Fisheries Resources that they harvest from their Claimed Territories; [Emphasis added; para. 97.]
The Lax Kw’alaams also sought a declaration that Canada has breached fiduciary obligations and the honour of the Crown in relation to the fisheries.
III. Judicial History
A. British Columbia Supreme Court (Madam Justice Satanove (now Madam Justice Kloegman)), 2008 BCSC 447, [2008] 3 C.N.L.R. 158
[27] Before trial, an order was made that severed from the proceeding the question of Aboriginal title (2006 BCSC 1463 (CanLII)). At trial, the claims not severed were dismissed. The trial judge did not address the question of infringement, because she found there to be no existing Aboriginal right.
[28] The trial judge was not satisfied that trade in any fish or fish products other than eulachon grease could properly be described as integral to the Lax Kw’alaams distinctive culture (para. 495). Such sporadic trade as may have existed in other fishery resources in no way constituted “a central and significant part of the society’s distinctive culture”, or in any way made their society “truly . . . what it was” (R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 55 (emphasis deleted), cited by trial judge, at para. 496). Such sporadic trade was low volume, opportunistic, irregular, for food, social and ceremonial purposes, and purely incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch, and ranked society (para. 496). The potlatch rested on a cultural and ceremonial basis that was quite different from a commercial marketplace.
[29] Ultimately, the trial judge concluded, “the plaintiffs’ simplistic position that the ancient trade in eulachon grease has transmogrified to a modern day right to commercial fishing of salmon, halibut and all other marine and riverine species of fish, ignores the fundamental fact that the Coast Tsimshian fished for sustenance, not for trade” (para. 499 (emphasis added)). Specifically,
[t]he rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products. [para. 499]
[30] The trial judge then added, in what could be taken as a comment on a lack of continuity and proportionality, in a paragraph already set out above but reproduced here for convenience:
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. [para. 501]
If one were to substitute for the words “is equivalent to” in this quotation the different words “provides a sufficient historical basis for”, I would respectfully agree with the proposition.
[31] With respect to the alternative claim that the Crown had breached its “trust-like or fiduciary obligatio[n]” to the Lax Kw’alaams by “restricting or denying” them access to harvest fish for commercial purposes, the trial judge found their version of the facts to be “notably one sided” (paras. 97 and 515-17). As the Crown had given “no promise of commercial fishing rights, exclusively or at all, to the Coast Tsimshian”, either as part of the reserve allotment process or otherwise, the Lax Kw’alaams lacked the legal foundation to establish that any fiduciary duty was owed to them (para. 518). Neither had the Lax Kw’alaams established that the Crown had acted dishonourably by subjecting them to the same limits and restrictions on fishing as all other fishers (para. 529). Therefore, the argument based on the honour of the Crown or fiduciary duty did not support the Lax Kw’alaams’ claim for access to commercial fishing in priority to non-Aboriginal fishers.
B. British Columbia Court of Appeal (Newbury, Chiasson and Bennett JJ.A.), 2009 BCCA 593, 281 B.C.A.C. 88
[32] The appeal was dismissed. Newbury J.A. held that the trial judge had properly distinguished the eulachon fishery from that of other species in defining the pre-contact activity (paras. 42-43). She held that the nature and scope of the pre-contact activity is determined on the facts of each case (para. 35). Given the trial judge’s finding that the eulachon trade was a species-specific activity not related to the broader harvesting of fish for subsistence is supported by R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, it would be misdescribing the Coast Tsimshian way of life to say that trading fish resources generally was integral to their way of life when that trade was relatively minor and limited to one species (para. 38). Other species like salmon were only harvested for subsistence purposes and were so plentiful as not to be the subject of trade except in times of famine (paras. 2, 23, 26 and 43).
[33] She found that the appropriate question was whether commercial fishing is the logical evolution of the Lax Kw’alaams’ traditional practices relating to eulachon grease (para. 45). There was no basis upon which to reverse the trial judge’s conclusion that the pre-contact eulachon trade was not the precursor of a modern right to fish all species for commercial purposes (para. 48).
[34] As to the “lesser rights” argument, the Lax Kw’alaams argued that the reference to “sustain[ing] their communities” amounted to the assertion of a more limited commercial right (paras. 58-59, citing the Second Amended Statement of Claim, at para. 31). In Newbury J.A.’s view, however, the trial judge’s refusal to consider “lesser rights” was a “judgment call” that was open to her (para. 62). The trial judge was best placed to evaluate the pleadings, argument and prejudice to the other parties.
[35] The appellants pointed to various instances in their pleadings that referred to “consumption” and “sale” or “trade”, but the Court of Appeal stated that “[i]t should not be necessary for a court to try to piece together various obscure references in a pleading in order to discern what is being sought” (para. 65).
[36] With respect to the assertion that the Crown had promised in the process of reserve allotment that the Lax Kw’alaams would “‘be kept in the fishing business alongside other fishers’ — i.e., a non-exclusive right to fish commercially” (para. 76), the trial judge had found that no such promise was made and the trial judge’s finding that there was no basis for the Lax Kw’alaams to be treated preferentially to non-Aboriginal fishers was fully justified by the evidence (para. 77).
IV. Issues
[37] The Lax Kw’alaams raise the following issues:
1. Did the courts below err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices?
2. Did the courts below err in isolating the ancestral practice of trading in eulachon grease “as a practice of its own” rather than focusing more comprehensively on the Coast Tsimshian “fishing way of life”?
3. Did the courts below err by refusing to consider whether the appellants had established a “lesser” right to fish on a “moderate” scale “to sell to others in order to acquire money, goods or services to sustain [their] communities” or to an Aboriginal right to fish for food, social and ceremonial purposes?
4. Did the courts below err in dismissing the claim based on the honour of the Crown by concluding that, in the allotment of fishing station reserves, the Crown did not expressly or impliedly promise the Lax Kw’alaams a preferential fishery?
V. Analysis
[38] The Lax Kw’alaams First Nation and its ancestors have inhabited the northwest coast of British Columbia for thousands of years. In the pre-contact period prior to 1793, the basis of their culture and sustenance was the fishery. The principal issue in the present action is whether its ancestral practices, customs and traditions provide a proper legal springboard to the right to harvest and sell all varieties of fish in a modern commercial fishery — a right that would be protected and privileged by s. 35(1) of the Constitution Act, 1982 .
[39] In a series of decisions over the last 15 years the Court has worked out the test to establish such a right in the context of a defence to prosecutions for regulatory offences: see in particular Van der Peet; R. v. Gladstone, [1996] 2 S.C.R. 723; N.T.C. Smokehouse; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220 (“Marshall (2005)”); and R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686. In such cases, it is the prosecution that establishes the boundaries of the controversy by the framing of the charge. Here, however, the Lax Kw’alaams First Nation is the moving party, and it lay in its hands to frame the action, within the Supreme Court Civil Rules, B.C. Reg. 168/2009, as it saw fit.
A. Did the Trial Judge Err in Her Approach to Characterizing the Lax Kw’alaams’ Claim?
[40] The heart of the Lax Kw’alaams’ argument on this point is that “before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre-contact practices and way of life of the claimant group” (A.F., at para. 57 (emphasis in original)). I would characterize this approach as a “commission of inquiry” model in which a commissioner embarks on a voyage of discovery armed only with very general terms of reference. Quite apart from being inconsistent with the jurisprudence that calls for “characterization of the claim” as a first step, the “commission of inquiry” approach is not suitable in civil liti