Sushihunter
Active Member
Subject: Fw: Northcoast Band Loses Major Aboriginal Rights Court Case
To All:
The BC Supreme Court has rejected a claim by to Lax kw’a’laams Indian Band (30 km north of Prince Rupert) to an aboriginal commercial right to fish all species in northcoast B.C. waters. The band argued that commercial fishing was an integral part of their pre-European contact aboriginal culture. The Band had claimed priority commercial fishing rights in salmon, crab, halibut and all other fish species that migrate through or reside in northcoast waters.
In other words, in the same way that the all-Canadian fleet has to tie up to ensure that aboriginal food fishing needs are satisfied, the Lax kw’a’laams argued that we should stay tied to the dock until their need for money was satisfied. The Band argued that DFO unjustifiably interfered with their aboriginal right to fish commercially and that the Fisheries Act and regulations did not apply to the fishing activities of the members of the Band.
The Court rejected all of these claims and held:
Para. 515: The Plaintiff’s [the band’s] recitation of the facts is notably one sided. It conveniently ignores the plethora of historical documents that show quite clearly it was always Crown policy not to add exclusive fishing rights to reserves and that Indians were to have no s0pecial commercial rights over and above other fishermen.
Para 525: In the case at bar, I have already found as a fact that firstly, the plaintiffs have not established an aboriginal right to harvest and sell Fish Resources and Products on a commercial scale. . . . Secondly, the historical record, common law and legislation is clear that no special right to fish commercially on an exclusive basis in priority to other fisheries 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.
Para. 529: The difficulty with this premise is that the plaintiffs have not established a 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. Fish, as a living, moving, dynamic and variable resource has always belonged to the public at large, and the defendant’s administration of the fisheries has always had to take into account the rights of all Canadians to exploit this resource.
This case was not about sharing the resource, it was about the Lax kw’a’laams demand for a commercial priority to all fish species on the northcoast. The court has reaffirmed that fish are a public resource for the benefit of all Canadians.
I will give a more detailed report tomorrow once I’ve had a chance to digest this long and detailed (178 pages) decision from the BC Court Supreme Court.
I will also have it on PDF tomorrow, so if anyone wants a copy feel free to email me back.
Regards,
Phil Eidsvik
BC Fisheries Survival Coalition
406-535 Howe Street
Vancouver, BC
V6C 2Z4
Phone: 604-638-0114
Fax: 604-638-0116
Email: bcfish@shawlink.ca
To All:
The BC Supreme Court has rejected a claim by to Lax kw’a’laams Indian Band (30 km north of Prince Rupert) to an aboriginal commercial right to fish all species in northcoast B.C. waters. The band argued that commercial fishing was an integral part of their pre-European contact aboriginal culture. The Band had claimed priority commercial fishing rights in salmon, crab, halibut and all other fish species that migrate through or reside in northcoast waters.
In other words, in the same way that the all-Canadian fleet has to tie up to ensure that aboriginal food fishing needs are satisfied, the Lax kw’a’laams argued that we should stay tied to the dock until their need for money was satisfied. The Band argued that DFO unjustifiably interfered with their aboriginal right to fish commercially and that the Fisheries Act and regulations did not apply to the fishing activities of the members of the Band.
The Court rejected all of these claims and held:
Para. 515: The Plaintiff’s [the band’s] recitation of the facts is notably one sided. It conveniently ignores the plethora of historical documents that show quite clearly it was always Crown policy not to add exclusive fishing rights to reserves and that Indians were to have no s0pecial commercial rights over and above other fishermen.
Para 525: In the case at bar, I have already found as a fact that firstly, the plaintiffs have not established an aboriginal right to harvest and sell Fish Resources and Products on a commercial scale. . . . Secondly, the historical record, common law and legislation is clear that no special right to fish commercially on an exclusive basis in priority to other fisheries 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.
Para. 529: The difficulty with this premise is that the plaintiffs have not established a 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. Fish, as a living, moving, dynamic and variable resource has always belonged to the public at large, and the defendant’s administration of the fisheries has always had to take into account the rights of all Canadians to exploit this resource.
This case was not about sharing the resource, it was about the Lax kw’a’laams demand for a commercial priority to all fish species on the northcoast. The court has reaffirmed that fish are a public resource for the benefit of all Canadians.
I will give a more detailed report tomorrow once I’ve had a chance to digest this long and detailed (178 pages) decision from the BC Court Supreme Court.
I will also have it on PDF tomorrow, so if anyone wants a copy feel free to email me back.
Regards,
Phil Eidsvik
BC Fisheries Survival Coalition
406-535 Howe Street
Vancouver, BC
V6C 2Z4
Phone: 604-638-0114
Fax: 604-638-0116
Email: bcfish@shawlink.ca
