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[troutbreath]

Judge rules against band's claim to commercial fishery
Lax Kw'alaams, who live north of Prince Rupert, argued old trade in eulachon grease translates to modern-day right to fish
 
Ian Mulgrew
Vancouver Sun


Friday, April 18, 2008


The Lax Kw'alaams Indians in the Prince Rupert area have no aboriginal or constitutional right to harvest fish commercially in the rivers and coastal waters of the northwest coast, the B.C. Supreme Court says in a sharply worded decision.

In a complex, 176-page ruling released Thursday, Justice Deborah Satanove concluded the first nation put forth a "simplistic" argument, unsupported by the historical record.

She called the band's recitation of facts during the year-long trial "notably one-sided" and oblivious to numerous documents that were at odds with its interpretation.

"Once again, on a factual basis alone, the [first nations] have not established the dishonourable conduct of which it accuses the Crown."

The Lax Kw'alaams, whose name means "place of small wild roses," number about 3,000 people, most of whom live on a reserve about 30 km north of Prince Rupert.

They are known colloquially as a "fishing people" and claim to have descended from nine Tsimshian tribes -- the "Coast Tsimshian" -- who, long before contact with any European, occupied territories and fishing sites on or near the rugged northwest coast.

But their claim that an "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," Justice Satanove said.

"The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not interrelated with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.

"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."

During the trial, the natives claimed to have used the fruits of the seas and rivers for food, social, ceremonial and commercial purposes long before the white man arrived. The band maintained it would have continued to do so but for the unjustifiable interference of the government of Canada.

The natives insisted the right to fish commercially was a distinctive feature of their culture, and asked the court to declare it an aboriginal right that had been infringed by the Fisheries Act.

They also claimed Ottawa breached its unique duty to them based on fiduciary principles and the honour of the Crown.

The federal government vehemently denied the claims and argued that, before the arrival of the Europeans, any trading in fish other than eulachon by the Coast Tsimshian was "low volume, personal, opportunistic, irregular, for food, social and ceremonial purposes and incidental to kinship relations, potlatches and ranked Coast Tsimshian society."

It denied any infringements of the band's aboriginal rights.

Satanove considered a wide ambit of evidence -- from expert to lay witnesses, historical to modern documents, and primary to secondary to tertiary sources culled from the disciplines of archeology, anthropology, ethnography, sociology, economics and biology.

In the end, she agreed with Ottawa.

"It must be recognized that aboriginal cases are unusual in that they find their genesis in a time before written historical records, continue through hundreds of years of recorded history, and rely on the views of scholars, authors and critics to collate and interpret [and sometimes speculate!] on what took place in a time that pre-existed the memory of any living being today," she noted.

"It must also be recognized that no matter how unusual the subject matter, or how politically sensitive some of these issues are, aboriginal cases are law suits and must be treated as such. That means the party who has the burden of proof on an issue must establish on the evidence that what they assert is more probable than not."

The Lax Kw'alaams failed to do that, she ruled.

imulgrew@png.canwest.com

© The Vancouver Sun 2008

[chris gadsden]

More info in relation to this case.


News Release

April 18, 2008

Court Decision Undermines Tsawwassen Treaty

OTTAWA-"The recent decision of the British Columbia Supreme Court in Lax Kw'alaams further undermines the legal basis for the fisheries component of the proposed Tsawwassen Treaty," said John Cummins, M.P.
(Delta-Richmond).

The Court rejected the Prince Rupert area band's claim of an aboriginal right to a commercial fishery.

The Court said: 

"[T]he plaintiffs have not established an aboriginal right to harvest and sell Fish Resources and Products on a commercial scale.  Therefore, there is no cognizable aboriginal interest …. Secondly, the historical record, common law and legislation is clear that no special right to fish commercially on a exclusive basis in priority to other fishers was ever granted to the plaintiffs, as part of the reserve process or otherwise.  Therefore, the plaintiffs lack the foundation for establishing the type of fiduciary duty upon which they claim to rely."

The Lax Kw'alaams decision by the B.C. Supreme Court is a stark reminder that there is no aboriginal right to a commercial fishery in British Columbia for salmon or other significant commercial species.

This decision is consistent with the decisions of the Supreme Court of Canada in Van der Peet and NTC Smokehouse where B.C. aboriginal claimants failed to establish that commercial fishing of salmon had been an integral part of their culture prior to contact. 

The Chretien government ignored the Supreme Court decisions when it negotiated segregated aboriginal fisheries in treaties. 

This decision is a reminder that the inclusion in treaties of segregated aboriginal commercial fisheries, such as those proposed in the Tsawwassen Treaty, creates new rights: rights that would further segregate Canadian society.

"The legislation to implement the proposed Tsawwassen Treaty must not come back to Parliament for Second Reading until the fisheries component of the treaty has been removed," Cummins said.

[coryandtrevor]

I wholeheartedly agree with the rulings. 


One artice in the new BC Outdoors by Bill Otway outlines a proposal by a some grand chiefs in BC. They want to claim ALL BC water, resources and hunting opportunities to

be solely handed over to FN. I know thats really nothin' new when it comes to FN beef but seriously , that is ridiculous  ALL BC fishing, hunting and natural resources to

be handed over to FN for management ? Good luck. I'm all for equality and sharing the land but not handing it all over. The proposal is hot on the heels of two treaties

that were handed over, one to Tswassen and one to a band around PG i believe. Most of the details in the treaties are not known to the public but one think that irked

me was there was land and resources and all the management along with it handed over to that PG band which meant harvesting of anything in sight any animal and freshwater fish. I hope they have

the pride to not piss it all away and manage it for the future.

 

[ever_hopefull]

OTTAWA-"The recent decision of the British Columbia Supreme Court in Lax Kw'alaams further undermines the legal basis for the fisheries component of the proposed Tsawwassen Treaty," said John Cummins, M.P.
(Delta-Richmond).

However, when you read the Tsawwassen Treaty, there is no Treaty right to fish commercially.  They might get a few commercial licences due to the Treaty, but they still have to fish under the same rules, gear, times, etc. that other commercial fishermen do.  They are closed when everybody else is closed, so they do not have any commercial benefit over and above non-natives.  However this is different than food fishing where they have an aboriginal right even now.