On November 10, 2011, the Supreme Court of Canada upheld the decisions of the BC Supreme Court and the BC Court of Appeal to dismiss the claim of the Lax Kw’alaams First Nation (and other First Nations) for the right to a commercial fishery on the north coast of British Columbia, just north of Prince Rupert. The fact that trade in the fish product eulachon grease was integral to the Lax Kw’alaams’ pre-contact distinctive society was not sufficient to establish an Aboriginal right to a general commercial fishery.


At trial (2008 BCSC 447), the Lax Kw’alaams were successful in proving that they are an Aboriginal group descendent from the Coast Tsimshiam who had lived and fished in the Prince Rupert area at the time of contact with Europeans. They also demonstrated that the harvest and consumption of fish resources remained an integral part of their distinctive culture. However, although a “fishing people”, the Lax Kw’alaams failed to demonstrate they were a “trading people” in any fish resource or fish product except for the limited species-specific luxury good of eulachon grease.

In the result, the trial judge dismissed the First Nations’ claim for a declaration that they held an Aboriginal right to harvest and sell all species of fish on a commercial scale in their claimed territories. The BC Court of Appeal concurred (2009 BCCA 593).

The Supreme Court of Canada Decision

In a unanimous decision, Mr. Justice Binnie dismissed the Lax Kw’alaams’ arguments, and upheld the conclusion of the Court of Appeal on all issues. 

A.  Characterization of the Claim

The Lax Kw’alaams argued that the court should first make inquires and findings about pre-contact practices and way of life of the claimant, and then characterize the claimed Aboriginal rights. Mr. Justice Binnie coined this the ‘commission of inquiry’ approach, and dismissed it as illogical and contrary to the rules of civil procedure as well as prior authority on establishing Aboriginal rights (Van der Peet). 

A claimant may take advantage of the ability to amend its pleadings, but at the end of the day, the defendant must know what precisely is being claimed. Mr. Justice Binnie went on to set out a four-step process for a court to follow when dealing with a section 35 claim:

  1. 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.
  2. Based on the evidence, determine if the First Nation has proved: (a) the existence of the pre-contact practice advanced in the pleadings, and that (b) this practice was integral to the distinctive pre-contact Aboriginal society.
  3. Determine if the claimed modern right has a “reasonable degree of continuity with” or is “demonstrably connected to” or is “reasonably regarded as a continuation of” the integral pre-contact practice. This step should be approached in a “generous though realistic” manner, and the modern right must engage the essential elements of the pre-contact practice.
  4. If an Aboriginal right to trade commercially is found, that right should be delineated with consideration to the objectives of the pursuit of economic and regional fairness, and the historical reliance and participation in the fishery by non-Aboriginal groups (citing Gladstone and Marshall).

B.  Continuity between the Pre-Contact Trade in Eulachon Grease and a Modern Commercial Fishery

The trial judge had found it would be “stretching the concept of an evolved Aboriginal right too far” to say the Coast Tsimshian’s practice of trading in eulachon grease was equivalent to a modern right to fish commercially in all species in their claimed territories.

The Supreme Court of Canada agreed. Although Aboriginal rights are not “frozen at contact” and subject to evolution, such evolution is limited both quantitatively and qualitatively. The Court re-asserted the “distinctive culture” test set out in Van der Peet remains the proper test. 

In this case, a finding of a general commercial right to fish would directly counter the trial judge’s factual conclusion that the Lax Kw’alaams did not trade in any significant way in fish or fish products other than eulachon grease. A general commercial fishery is qualitatively different from the pre-contact activity, and out of proportion to its importance to the pre-contact Tsimshian economy. The Court also drew its own inference that given the short fishing season of eulachon pre-contact, a commercial fishery would lack quantitative proportionality to the pre-contact activity as well.

With respect to “species specific” rights, the Court emphasized this finding will turn on the facts of a particular case. The evolution of fisheries and change in migratory patterns of fish should not be ignored, but in this case, the only subject matter of significant trade was eulachon grease.

C.  Lesser and Included Rights

Lax Kw’alaams, drawing upon principles of criminal procedure, argued the trial judge failed to consider all “lesser” rights subsumed in the right to trade commercially, including the right to harvest and sell fish for sustenance, still on a commercial scale.

The Court firstly, relied on the trial judge’s conclusion that trading fish other than eulachon was not integral to the Lax Kw’alaams’ pre-contact society, noting this factual finding was as fatal to the establishment of the lesser right as it was to the greater commercial claim.  The Court also acknowledged the problem faced by the trial judge that the Lax Kw’alaams did not articulate any relief for a lesser claim in its pleadings nor in argument, and ultimately concluded the claim was unclear, “bristled with difficulty”, and failed at the establishment stage.

D.  The Honour of the Crown

As an alternative argument, the Lax Kw’alaams asserted that, in the late nineteenth century, the Crown made promises, express or implied, to preserve their commercial fishery. However, the trial judge found no promise was made, and there is no treaty in place with the Lax Kw’alaams (as was the case in R. v. Marshall). Given this lack of evidence, the Court found no basis on which to conclude the Crown breached its fiduciary duties to the Lax Kw’alaams.


The Court provided guidance on the process of Aboriginal rights litigation, emphasizing the importance of the pleadings and articulating precisely the nature of the asserted rights. The Court reinforced its view that trials seeking declaratory relief are better suited to the determination of Aboriginal rights than the confines of regulatory hearings, allowing for pre-trial discovery and other procedural advantages. Nevertheless, the Court concluded that this advantage is lost if the rules of civil procedure are not followed, and emphasized a “commission of inquiry” approach is not appropriate. In drawing this conclusion, the Court noted that claimants are now generally well-resourced and represented by experienced counsel, and that Aboriginal rights litigation carries great importance to non-Aboriginal communities as well as Aboriginal communities.

With respect to the much-debated issue of species-specific rights, the Court found Aboriginal rights will be delineated by the facts and circumstances of each case. In this case, the trial judge’s conclusion that the Lax Kw’alaams traded in a product generated by one specific species was supported by the evidence.

Finally, the Court emphasized that care must be taken not to evolve an Aboriginal right into a modern right that is different than the Aboriginal right. This comment by the Court, although dicta, seems to suggest a rigorous analysis of assertions of evolving rights:

[51]     However, when it comes to “evolving” the subject matter of the Aboriginal right, the situation is more complex. A “gathering right” to berries based on pre-contact times would not, for example, “evolve” into a right to “gather” natural gas within the traditional territory. The surface gathering of copper from the Coppermine River in the Northwest Territories in pre-contact times would not, I think, support an “Aboriginal right” to exploit deep shaft diamond mining in the same territory. While courts have recognized that Aboriginal rights must be allowed to evolve within limits, such limits are both quantitative and qualitative.  “[A] pre-sovereignty Aboriginal practice cannot be transformed into a different modern right”: Marshall (2005), at para. 50.