LAW KW’ALAAMS CASE: AN EXPENSIVE LESSON IN HOW TO PROPERLY BRING AN ABORIGINAL RIGHTS CASE

On Thursday, November 10, 2011, The Supreme Court of Canada ruled that the Law Kw’alaams Indian Band was not a trading people and had no commercial right to harvest and sell all varieties of fish in a modern commercial fishery within their territory. A huge blow to a peoples who most definitely were a trading people. So what went so wrong?

To sum it up, the case was not properly brought and the right evidence produced. The Statement of Claim (pleadings) that is the foundation of the case for the Law Kw’alaams was not properly framed. Although then the lawyers for the Law Kw’alaams amended these documents when they realized their evidence did not match the pleadings, they did not fix the problem. As well, the evidence was not sufficient to meet the claim of what they were asking the court to rule on.

CASE AT TRIAL- BC Supreme Court 

The case at trial was one year long and had many witnesses including experts. The case began before the BC Supreme Court and the trial judge made many finding of facts. Findings of fact are very important as it is what the appeal courts base their decisions on. They cannot be overturned by a higher court unless there was something very wrong and in this case, the highest court of the land upheld these findings of fact. The BC Supreme Court found the following facts:

1. The Law Kw’alaams pre-contact customs, practices and traditions did not support a commercial fishery.

2. The only trade that was proven was a limited trade in eulachon grease. Such trade was low volume, irregular and only incidental to their society. (2 weeks per year) The court would not stretch this into an evolved aboriginal right for a modern right to fish commercially all species within their territories.

3. There was sporadic trade involving gift exchanges at feasts and potlatches or exchange of luxury goods such as slaves, coppers, dentalium and eulachon grease but it was peripheral to the pre-contact society and did not define what made the Coast Tsimshian society what it was.

4. Prior to contact, the Coast Tsimshian largely sustained themselves in an extensive fishery and have deep roots in the coastal fishery. As they continue to access their food, social and ceremonial right to the fishery through an aboriginal communal license, there was no ruling on this right as it was not in controversy.

 

CASE ON APPEAL Before the Supreme Court of Canada:

First Ground of Appeal: Improper characterization of the right

The Law Kw’alaams took this case to the BC Court of Appeal and Supreme Court of Canada arguing that the Trial Judge did not properly characterize the Law Kw’alaams Claim. The Supreme Court of Canada made 3 points on how a court goes about characterizing a claim while giving a “measure of flexibility” because it is about aboriginal rights.

A. The court first identifies the precise nature of the First Nations claims to an aboriginal right based on the pleadings. Court may refine the characterization of the right in light of the evidence.

B. Determine if the First Nation has proved through evidence that:

i) the existence of the pre-contact practice, tradition, or custom as set out in the pleadings

ii) the practice was integral to the distinctive pre-contact First Nation.

C. Determine whether the claimed modern right has a reasonable degree of connection and continuity to the pre-contact practice. Must have the essential elements-not need to be exactly the same.

D. If an aboriginal right is found to exist it must be in light of conservation and other people who use the resource.

The Supreme Court of Canada based on these 4 tests that have been set out in many other aboriginal rights cases, ruled that the trial judge was right in how she characterized the claim based on the pleadings of the Law Kw'alaams. A court cannot be used as an inquiry to try and find what the right is.

Second Ground of Appeal: Evolution of the Right

The Law Kw’alaams part way through trial changed their approach and tried to argue that a modern commercial fishery was the logical evolution of a Pre-Contact Trade in Eulachon Grease. The Trial court did not agree and the Supreme Court of Canada made the following points:

A. Aboriginal rights are not frozen in time but evolve both in terms of subject matter and method depending on facts.

B. Evolution of Rights can only happen within quantitative and qualitative limits.

C. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive Culture-i.e. make the society what it was. On the finding of facts-the Law Kw’alaams failed to prove that commercial fishery was integral and significant to them even for eulachon before they can talk about evolution.

D. The Law Kw’alaams tried to argue that their right to trade in eulachon should be extended to all fisheries as this was how it evolved. The court ruled that  to agree to that would be qualitatively different than what was actually pre-contact and would be out of proportion to the importance of trade to the pre-contact society.

E. Also to allow a commercial fishery from pre-contact trade in eulachon grease when there was a lack of evidence on the quantity would not be proper. It was a short season, and very laborious to extract the grease and the quantities were very small in relation to the overall fishing activity.

The Court determined that you could not evolve a very small trade of eulachon grease into a right to all fisheries in a commercial fishery.

3RD Ground of Appeal: A LESSER AND INCLUDED RIGHT

In the closing oral argument at trial, the lawyers for Law Kw’alaams advanced the argument that they had a lesser included aboriginal right to harvest for of all species for consumption to sustain their communities and to generate wealth and maintain and develop their economy. Even though it was a lesser right, it was a commercial right on a lesser or more modest scale.

The highest court of the land said that the fact that the trial judge found that trade in fish apart from eulachon grease was not integral to Coast Tsimshian Pre-Contact was FATAL to the lesser commercial claim.

No evidence was led at trial that the trade was a basis to support the Law Kw’alaams communities. On top of all this, the courts ruled that it was not fair to introduce in final submissions new issues that were not dealt with during trial. All evidence produced at trial dealt with a full-scale commercial fishery. It did not give proper notice to the Crown on what to argue and to test the evidence on without proper introduction of the issue.

The court also said that because Law Kw’alaams did not define the lesser right, the court had no idea what impact that would have on the resource.

4th Ground of Appeal: “Honour of the Crown”

The Law kw’alaams argued that they were expressly or impliedly promised the right to a commercial fishery during the reserve allotment process. The court ruled that no such evidence was produced that would give them priority to the commercial fishery. There was no treaty and no promise and this was made clear to the Law Kw’alaams by the Government.

WILL THIS CASE EFFECT ON OTHER CASES?

Will this case influence other cases such as the Ahousaht v. Canada et all which is going before the Supreme Court of Canada? If the Ahousaht case pleadings are weak as was this case, it will apply. Each case is different based on the Findings of Fact at trial. If your findings of fact are strong, you have a good chance on appeal. Court rulings will always be cited in other cases dealing with aboriginal rights so this case will be used in other cases.

Does this case mean that no First Nation has a right to a commercial fishery in BC? It most certainly does not. It is very specific to the Law Kw’alaams and the evidence they produced. What is very important is that future cases look very closely at the tests set out in this case and in others that are cited here and make sure that your pleadings are very clear about what your rights are and that your evidence proves those rights. If you need to amend your pleadings to better reflect that evidence, you can do so at trial. Also, even if you think it may weaken your case, you should also lead evidence and argument at trial about any lesser or included rights.

I am sure the Law Kw’alaams are reeling under the results of this case. Putting so much time and money into a case that was flawed from the start should not have made it to the Supreme Court of Canada. When I read this case, I reflected on the Calder case, a case that also made it to the Supreme Court of Canada. Based on a very procedural issue, the lack of a “fiat”, a majority decision was not given and the existence of aboriginal title was not ruled on. This case unfortunately was about procedure that was not properly followed as opposed to the merits of a commercial fishery. It is a sad day indeed for the advancement of aboriginal rights to a commercial fishery. Something that is so integral to the Law Kw’alaams people, is now off the table for any negotiations and advancement as an aboriginal right to the commercial fishery. Let’s hope the Ahousaht case is more positive.

 

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