Lax Kw’alaams Indian Band v Canada (Attorney General)

2011 SCC 56 (Released November 10, 2011)

Constitution Act, 1982 – Aboriginal Rights – Proof

This Supreme Court of Canada decision rejected a claim by several First Nations to possession under s. 35 of the Constitution Act, 1982, of an Aboriginal right to fish commercially all species in the claimants' traditional territories. In doing so the Court (1) considered how a modern right can evolve from an historical practice; (2) confirmed the importance of the pleadings and of the characterization of Aboriginal rights; and (3) restated the steps for proof of an Aboriginal right while adding a further restriction in the case of commercial rights.

The Lax Kw'alaams Indian Band ("Lax Kw'alaams") and its ancestors have lived in and fished off the northwest coast of British Columbia for thousands of years. Before contact with Europeans, they regularly traded fish-grease extracted from the eulachon but traded other fish products only occasionally. In the present