COURT OF APPEAL FOR BRITISH COLUMBIA

Date: 20091223

Docket: CA036098

Between:

The Lax Kw'alaams Indian Band, represented by Chief Councillor Garry Reece on his own behalf and on behalf of the members of the Lax Kw’alaams Indian Band, and others

Appellants

(Plaintiffs)

And

The Attorney General of Canada and Her Majesty The Queen in Right of the Province of British Columbia

Respondents

(Defendants)

Corrected Judgment:  On February 2, 2010, the text of the judgment was corrected at paras. 1, 2, 4, 7, 36, 42, 56, 60 and 62

On appeal from the Supreme Court of British Columbia, April 16, 2008,

Lax Kw’alaams Indian Band v. Canada (Attorney General), 2008 BCSC 447,

Vancouver Registry, Docket L023106

Reasons for Judgment of the Honourable Madam Justice Newbury:

Introduction

[1]             The Lax Kw'alaams Indian Band are the modern representatives of a proud “fishing people” comprising several tribes or houses known prior to European contact as the Coast Tsimshian.  They inhabited territories and fishing sites along the northwest coast of British Columbia, the area between the Nass and Skeena Rivers and the inlets and islands between their estuaries, and south to the north end of what is now Grenville Channel – all areas in which salmon and other fish were in abundant supply.  Their society was characterized by complex relationships based on “rank” and kinship and their “seasonal round” was determined largely by the availability and location of salmon, halibut, herring spawn, seaweed, shellfish and an oily candlefish or smelt known as eulachon.  The latter were caught by the Coast Tsimshian for a few weeks in late winter (primarily, if not entirely, at locations along the Nass) and were eaten fresh, smoked or dried for later use, or rendered into oil or grease by a process described by anthropologists Donald Mitchell and Leland Donald in Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery, as follows:

The rendering process was similar throughout the northern part of the coast.  Eulachon were stored in pits dug into the ground or in big cedar plank bins for a little over a week. They were then boiled in large wood vats – sometimes dugout canoes were pressed into service—and the freed oil was skimmed from the surface for storage in wooden boxes or the bulbs and long hollow stems of kelp. When cooled to around 10 C the oil firms to a butterlike consistency and does not liquefy again until the temperature has been raised to about 21 C.  [At 657.]

[2]             The grease so produced was used as a preservative for perishable foods such as berries throughout the year and according to the trial judge’s findings in this case, was regarded as a “prestige” item that was exchanged between kin at feasts and potlatches along with other luxury goods, namely coppers, slaves and dentalium.  In contrast, other fish, especially salmon, were so plentiful that although they were harvested in great quantity and eaten for subsistence, virtually no trade or exchange in them took place.

[3]             The Lax Kw’alaams commenced this proceeding in 2002, seeking inter alia a declaration that they have existing Aboriginal rights under s. 35(1) of the Constitution Act, 1982 to harvest all species of “Fisheries Resources” (defined to mean all species of fish, shellfish and aquatic plants) in their “Tribal Territories” (shown on a map attached to the Statement of Claim) and to “sell [them] on a commercial scale” in Canada.  The trial of this and related claims took 125 days before Madame Justice Satanove (now Madame Justice Kloegman) in the court below.  Her reasons are indexed as 2008 BCSC 447.

[4]             The trial judge described and purported to apply the template established for the determination of Aboriginal rights by the Supreme Court of Canada in the 1996 “trilogy” ? R. v. Van der Peet [1996] 2 S.C.R. 507, R. v. Gladstone [1996] 2 S.C.R. 723 and R. v. N.T.C. Smokehouse Ltd. [1996] 2 S.C.R. 672, as refined and developed by later authorities, most recently R. v. Sappier; R. v. Gray 2006 SCC 54, [2006] 2 S.C.R. 686.  She concluded that the Coast Tsimshians’ trade in prestige goods, including eulachon grease, was integral to their distinctive culture, but that trade in other fish and related products had been “low volume, opportunistic, irregular, for [food, social and ceremonial] purposes, and incidental to fundamental  pre-contact ... relations, potlatch and ranked society.”  Whilst recognizing that a “survival activity” can sometimes be a distinctive element of a society, she was unable to find on the evidence that “trade in any other Fish Resource or Product beside[s] eulachon grease could properly be described as integral to [the Coast Tsimshian] distinctive culture”.  It would, she concluded, be “stretching the concept of an evolved Aboriginal right too far” to say that the Coast Tsimshian trade in eulachon grease was “equivalent to a modern right to fish commercially all species in their Claimed Territories.” (“Claimed Territories” was defined at para. 2 of her reasons.)  Since it was unnecessary to continue on to the infringement and justification stages of the analysis, she dismissed this part of the action.

The Right(s) Asserted

[5]             The grounds of appeal advanced by the Lax Kw’alaams in this court are framed for the most part as issues of law turning on the first step in the assessment of an Aboriginal rights claim – the characterization of the right being sought – and on the trial judge’s assessment of the relevant “practices” of the Coast Tsimshian in relationship to their culture, or “way of life”, prior to European contact.  In connection with the first step, it may be helpful to begin by reviewing the appellants’ pleading, as supplemented by particulars they provided to the defendant Canada prior to trial, to assist in determining exactly what was being sought in the court below.

The Pleadings

[6]             As is already apparent, this case differs from most Aboriginal law cases in that it arises not as a result of an alleged regulatory offence, but in an action brought by the Aboriginal group for declaratory relief against the federal and provincial governments.  Counsel for Canada stressed that in these circumstances, it was for the Lax Kw'alaams to frame clearly the right or rights being sought, such that the issues to be tried would be understood by the parties, counsel, and the Court.  Mr. MacKenzie referred us to a passage from Canadian Bar Association v. British Columbia 2008 BCCA 92, (2008) 290 D.L.R. (4th) 617, where Saunders J.A. stated for this court:

The history of pleadings is well described by Parrett J. in Keene v. British Columbia (Ministry of Children and Family Development), 2003 BCSC 1544, 20 B.C.L.R. (4th) 170.  The rules on pleading are not overly technical.  Pleadings prevent expansion of the issues, give notice of the case required to be met, and provide certainty of the issues for purposes of appeal.  Complexity and confusion that can be created by a moving target is avoided by pleadings correctly drawn, as are subsequent quarrels in this Court as to the issues before the trial court.  Pleadings are an elegant solution to issue definition and notice and are well-serving of the ultimate purpose of efficient resolution of a dispute on its merits (Rule 1(5) of the Rules of Court).  Ideally, they avoid the “loose thinking” decried by Lord Denning in his foreward to I.H. Jacob, Bullen and Leake and Jacob's Precedents of Pleadings, 12th ed. (London: Sweet & Maxwell, 1975).  [At para. 60.]

(See also Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 at para. 76, per Lamer C.J.C.; Strauss v. Jarvis 2007 BCCA 605, 76 B.C.L.R. (4th) 90, at para. 15.)

[7]             The appellants’ pleadings are found in their Second Amended Statement of Claim, which is a “redacted” version of the earlier Amended Statement of Claim.  The redactions were made in accordance with an order made on September 11, 2006 by the trial judge.  It severed from the present proceeding the question of Aboriginal title (as opposed to other rights) which the appellants might have as against Canada or British Columbia, and all other claims against the Province.  (Counsel for British Columbia was excused from the hearing of this appeal at his request.)  On the appeal, all issues as to infringement and justification were also postponed until a later date if necessary, by order of the Court.

[8]             In their Second Amended Statement of Claim, the Lax Kw’alaams asserted at para. 28 that each of the Allied Tsimshian Tribes was a “distinctive Aboriginal society engaged in a sophisticated economy based predominantly on the harvesting, managing, processing, consuming and trading of all species of fish, shellfish and aquatic plants ... that were available to the Tribes from time to time within their Tribal Territories.”  Paragraphs 30-1 stated:

The harvesting, managing, processing, consuming and trading of Fisheries Resources were central features of each Tribe’s economy and were customs, practices or traditions that were integral to the distinctive aboriginal culture of each Tribe at and before Contact.  The distinctive aboriginal culture of the Allied Tsimshian Tribes would have been fundamentally altered without the ability to harvest, manage, process, consume and trade Fisheries Resources.

The Lax Kw’alaams Band, or, in the alternative, each Allied Tsimshian Tribe, holds existing aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for consumption and sale to sustain their communities, accumulate and generate wealth and maintain and develop their economy.  [Emphasis added.]

[9]             It was further asserted that the accumulation of wealth in the Coast Tsimshian society had depended on trade and that Fisheries Resources were a necessary trade item by which tribes and house groups acquired wealth; and that the accumulation and redistribution of wealth to “acquire or retain a high rank” within Tsimshian society were integral features of their distinctive Aboriginal culture.  At para. 62 of the Second Amended Statement of Claim, the appellants asserted Aboriginal rights to “harvest, manage and sell on a commercial scale Fisheries Resources and Fish Products [defined to mean processed fish products] ... for the purpose of sustaining their communities, accumulating and generating wealth, and maintaining their economy.”  In response to a request by Canada for particulars as to what was meant by each of the three latter phrases, the appellants elaborated:

This question appears to misapprehend paragraph 31 of the Statement of Claim.  Paragraph 31 alleges that the Plaintiffs have aboriginal rights to “harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for consumption and sale to sustain their communities, accumulate and generate wealth and maintain and develop their economy.”  By this the Plaintiffs mean that they have an aboriginal right or aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for their own consumption or to sell to others in order to acquire money, goods or services to sustain the Lax Kw’alaams communities economically, to generate economic growth in those communities, and to allow persons in the community to accumulate and generate wealth.  [Emphasis added.]

The appellants also clarified that by “commercial scale”, they meant the exchange of “Fisheries Resources for money, goods or services on a large scale” and that they had used the words “selling” and “trading” interchangeably.

[10]         Finally in the Second Amended Statement of Claim, the appellants sought in their prayer for relief:

(a)        a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to harvest all species of Fisheries Resources within the constitutional jurisdiction of Canada in the Tribal Territories;

(b)        a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to sell on a commercial scale all species of Fisheries Resources within the constitutional jurisdiction of Canada that they harvest from the Tribal Territories.  [Emphasis added.]

(An allegation of breach of fiduciary duty was also pleaded and will be dealt with later in these reasons.)  The trial judge combined the two prayers into one paragraph, summarizing the relief sought as follows:

The relief sought by the plaintiffs includes Declarations that:

a.         the plaintiffs have an existing aboriginal right within the meaning of s. 35 (1) of the Constitution Act of 1982 to harvest and sell on a commercial scale all species of Fisheries Resources that they harvest from their Claimed Territories; [At para. 97; emphasis added.]

[11]         Satanove J. dismissed an objection by Canada that because the proceeding is a civil one, the appellants should not be permitted to characterize their claim as encompassing all species of fish.  She noted that the specificity with which the claim of Aboriginal rights must be characterized does not pertain to the species fished, but to “persons, area and purpose” (para. 100) – a statement that has significance for her later analysis and for this appeal.

‘Lesser/Included’ Rights

[12]         Canada also objected to the appellants’ reference to what counsel called “lesser” or “included” fishing rights – the right to “sustain the community” with fish harvested in the Claimed Territories, and the right to fish for food, social and ceremonial (“FSC”) purposes.  (At present, the Lax Kw’alaams are given an annual ‘multi-species’ licence to fish for FSC purposes pursuant to regulations under the federal Fisheries Act.)  At para. 101, the trial judge listed Canada’s objections to the characterization of an Aboriginal right to fish commercially as “including” the right to sustain the community from Fish Resources in their Claimed Territories.  These objections included the fact that ‘sustaining the community’ was not included in the declaration sought in the pleading; that the term is ambiguous and unclear; the Supreme Court’s statement at para. 37 of Sappier that “there is no such thing as an aboriginal right to sustenance”; and the fact that, in Satanove J.’s words:

.... the plaintiffs’ theory at trial was that the pre-contact Coast Tsimshian traded fish to accumulate wealth to support a social organisation that emphasized wealth, status and ceremonial displays.  This is inconsistent with a present day right to sustain the community by fishing on a commercial scale.

[13]         The trial judge said she agreed with “most” of these objections, but expressed her own concern that neither party had led evidence regarding any pre-contact practice of “sustaining the community through trade on any scale.”  She continued:

... It is irrelevant at this stage of the analysis whether the evidence as a whole supports the plaintiffs’ claim, but it is relevant to the fairness of the proceedings that a party not introduce, at the stage of final submissions, new issues that were not properly the subject of adjudication.

I am aware that the plaintiffs use the phrase “sustaining their community” in their Amended Statement of Claim; however, when I consider the context of the whole Amended Statement of Claim, and the manner in which the plaintiffs conducted their case and presented their theory, that phrase appears to refer to their right to fish for sustenance or subsistence, not commerce.

More importantly, however, is the Supreme Court of Canada’s admonition in both R. v. Sappier and R. v. Van der Peet that it is not the significance or purpose of the pre-contact practise that supports the aboriginal right, but whether the practise was integral to the distinctive culture of the group.  Of course, as pointed out in R. v. Sappier, a traditional means of subsistence (i.e. a pre-contact practise relied upon for survival), can in some cases be considered integral to the distinctive culture of the particular aboriginals.  I have considered this, but am of the opinion that in the case before me, it would not be appropriate at this late stage to characterize the plaintiffs’ claim to sell fish on a commercial scale as including a right to “sustain their community”.  [At paras. 102-4; emphasis added.]

[14]         For somewhat similar reasons, the trial judge also declined to consider a separate claim by the Lax Kw’alaams to a right to fish for FSC purposes.  Noting that this had not been placed before her as an issue until final argument at trial, she acceded to Canada’s objection that it would be prejudiced by the introduction of a new “focus” at the end of trial.  On this point, she noted that in Williams v. British Columbia 2007 BCSC 1700, [2008] 1 C.N.L.R. 112, also an Aboriginal rights case, Vickers J. had refused to allow the plaintiffs to seek declarations that had not been pleaded, relying on Harmon L.J.’s statement in Biss v. Smallburgh Rural District Council [1964] 2 All E.R.  543 (C.A.) to the effect that one who seeks a declaration “must make up his mind and set out in his pleading what the declaration is.”

Final Characterization

[15]         In the result, the trial judge characterized the appellants’ claim as seeking an Aboriginal right to “harvest and sell on a commercial scale the Fish Resources and Products found in their Claimed Territories.”  (Para. 111.)

The Right to Fish Commercially

The Trial Judge’s Reasons

[16]         With respect to the ‘right to harvest and sell fish on a commercial scale’ as pleaded, the trial judge set out at the beginning of her reasons a summary of the “guidelines” enunciated by the Supreme Court of Canada over the last several years to assist courts in determining the validity of Aboriginal rights claims.  I will not repeat the entire summary here but will set out her description of the principles that inform the second step of the analysis – the determination of whether a particular “practice, custom or tradition” is integral to the distinctive culture of the group claiming the right:

6.         In order to be an aboriginal right protected by Section 35(1) of the Constitution Act, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

7.         “Integral to the distinctive culture” means:

(a)        a central and significant part of a society’s distinctive culture, one of the things that made this society truly what it was (R. v. Van der Peet);

(b)        “distinctive” does not mean “distinct”.  The use of the word distinctive as a qualifier is meant to incorporate an element of aboriginal specificity (R. v. Sappier);

(c)        “culture” means the pre-contact way of life of a particular aboriginal community including their means of survival, socialization methods, legal systems and potentially their trading habits (R. v. Sappier).

In other words, the court must identify a practice that helps to define the distinctive way of life of this particular aboriginal group as an aboriginal community.

8.         Aboriginal rights are not generally universal.  Their scope and content must be defined on a case by case basis.  The words “distinctive culture” refer to the aboriginal specificities sought to be captured.  A court must focus on:

(a)        the specific practices, customs and trades of the particular aboriginal group claiming the right (R. v. Van der Peet); and

(b)        the specific sites of these activities and recognize that a right to perform a site specific activity does not become an abstract right exercisable anywhere; it continues to be a right to exercise an activity on the tract of land in question (R. v. Adams, [1996] 3 S.C.R. 101, 138 D.L.R. (4th) 657; R. v. Côté; Mitchell v. M.N.R. and R. v. Powley 2003 SCC 43, [2003] 2 S.C.R. 207).

9.         In determining whether a claimant has produced evidence sufficient to demonstrate that the activity is integral to a distinctive aboriginal culture, a court should:

(a)        approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times when there were no written records of the activities engaged in (R. v. Van der Peet);

(b)        note that evidence of an activity that was part of a distinctive culture at contact will generally be sufficient to demonstrate that prior to contact the activity was also significant to that particular culture (R. v. Côté);

(c)        admit evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions (Mitchell v. M.N.R.);

(d)        accommodate, where appropriate, the admission of oral histories, but not imbue them with more weight than they can reasonably support (Delgamuukw v. British Columbia);

(e)        be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available; and

(f)         be flexible when engaging in the R. v. Van der Peet analysis because the object is to provide cultural security and continuity for the particular aboriginal society.  Flexibility is also important with regard to the relevant time frame being the period prior to contact with Europeans.

10.       The court must take into account the perspective of the aboriginal claimants; however, that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure (R. v. Van der Peet).  [At para. 10.]

The appellants did not take issue on appeal with any part of the Court’s summary of guidelines.

[17]         The trial judge next described in general terms the “Types of Evidence” she had heard over the year-long trial, and discussed the particular characteristics and challenges it presented.  Then followed a detailed review of the oral history and ethnographical, archeological, and anthropological evidence of the various expert witnesses, whose writings and testimony she examined in considerable depth.  (Again, her approach to this evidence is not the subject of any specific challenge by the appellants.)  Under the heading “Conclusion on Expert Witnesses”, she wrote:

The attack by each party on the other party’s expert witness was not always justified.  I agree that sometimes cross-examination disclosed errors in observations and assumptions.  I agree that sometimes the fine line between inference and speculation was crossed over inappropriately; however, my overall view is that the experts were immensely helpful in collecting and collating data that only persons with their years of experience and depth of knowledge could do.  Their opinions, while not necessarily accepted by me, were helpful to highlight certain perspectives and provide hypotheses against which to test the evidence.  I have not ignored any of the expert reports of Drs. MacDonald, Anderson, Langdon and Lovisek but have availed myself of their conclusions only where I am satisfied they are truly supported by the specific evidence in this case, and not merely broad-based assertions pronounced in favour of the position of one or other of the litigants.

The one exception is Dr. Anderson’s reliance on the Chief Kelly Manuscript.  In my view, her quickness to accept it as an authentic recording of Tsimshian oral history without proper research and analysis to determine its source and authenticity seriously undermined her credibility with respect to her interpretation of the oral histories upon which she relied.  [At paras. 84-5.]

[18]         From the evidence, the trial judge identified 1793 as the date of the Coast Tsimshians’ contact with European society.  By that time, maritime fur traders were present in the area trading European, American and native goods to various native groups, and Captain Vancouver had reached Dundas Island and the tip of Work Channel and Portland Inlet.  (1793 was also, she noted, the date chosen by Vickers J. in Williams v. British Columbia.)  Prior to that time, the Coast Tsimshian had begun to experience indirectly the effects of Russian trade goods as early as 1700 – 1750, and the Haida and Tlingit, with whom the Coast Tsimshian had kinship and exchange ties, had both come into direct contact upon the arrival of Juan de Perez in 1774.  Accordingly, the trial judge said, the practices and traditions relied upon to support the Aboriginal right would have to be carefully analyzed to ensure they were indigenous and not simply responses to European influence.  (Para. 120.)

[19]         The next step in the analysis was to determine whether the Lax Kw'alaams had proven “the existence (and continuity in modern form) of the ancestral activity upon which the [Aboriginal] right is based, and its integrality with the distinctive aboriginal culture of the pre-contact society from which the [appellants] claim to have been descended.”   In the Court’s words:

In R. v. Van der Peet, the court says that the claimant must do more than demonstrate that the ancestral activity was an aspect of, or took place in, the aboriginal society.  It must demonstrate that it was a central and significant part of a society’s distinctive culture, one of the things that made this society truly what it was.  Therefore, the court cannot look at aspects that are true of every human society such as eating to survive, nor can it look at aspects of aboriginal societies that are only incidental or occasional.  The court must look to the defining and central attribute, the core of the culture.

In R. v. Sappier, the court clarifies the meaning of the phrase “distinctive culture” by referring to the aboriginal specificity sought to be captured.  “Aboriginality” means more than interesting cultural practices and anthropological curiosities.  Culture on its own is a difficult concept to grasp.  It has implicitly been taken to mean a fixed inventory of traits or characteristics.  Distinctive aboriginal culture must be taken to refer to the reality that despite British sovereignty, aboriginal people were the original organized society occupying and using Canadian lands.  The focus of the court should be on the nature of this prior occupation.  What is meant by aboriginal culture is really an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, socialization methods, legal systems, and potentially, their trading habits.

Applying the principles of R. v. Van der Peet and Mitchell v. M.N.R. to the allegations in the Amended Statement of Claim, the plaintiffs must prove that before contact with the Europeans:

A.         the Coast Tsimshian were members of an organized society;

B.         from which the plaintiffs have descended;

C.        who used and occupied the Claimed Territories;

D.        from which they harvested Fish Resources and Products as an integral part of their distinctive culture;

E.         traded them on a scale akin to commercial as an integral part of their distinctive culture; and

F.         have continued to do so in a contemporary fashion.  [At paras. 122-4.]

[20]         Again carefully reviewing the expert evidence before her, Satanove J. found the following facts:

1.       The original ten (now nine) tribes of the Coast Tsimshian were likely in existence and had permanent winter villages on the coast before European contact.  Although there was no “cohesive, overarching, political regional organization” until the fur trade began, there were social bonds and relationships among clan members of different villages.  (Para. 160.)

2.       The Lax Kw'alaams are descendents of the nine surviving tribes which existed at the time of contact and are known collectively as the Coast Tsimshian.  (Para. 163.)

3.       The Coast Tsimshian were a highly structured and “ranked” society in which rank and social position were maintained and enhanced by an ongoing accumulation of wealth.  (Para. 164.)  Their concepts of wealth and rank were “inextricably tied into the social organization and were an integral part of the pre-contact distinctive culture of the Coast Tsimshian.”  (Para. 192.)

4.       Although it is not necessary for the plaintiffs in an Aboriginal claim to prove that they used and occupied their claimed territories exclusively (paras. 193-4), certain parts of the Claimed Territories in this case were controversial,  namely those listed at para. 198 of the reasons.  On balance:

• the Coast Tsimshian had fished pre-contact in the tributaries of the Skeena, but not its main stream, and had fished in the Dundas Island Group;
• they had not fished in the Zymoetz River (para. 211) or in the Zimacord River and Valley (para. 214); and
• although the evidence was “not clear” whether historically the Coast Tsimshian could fish for eulachon at Fishery Bay or elsewhere on the Nass River without permission of the Nishga’a, it was more likely than not that they had fished there “only with the permission of the Nishg’a, only for eulachon, and only during the few weeks of eulachon season.”  (Para. 224.)  (This is the only finding of pure fact that is challenged by the Lax Kw’alaams on appeal.)

6.       From pre-contact times, the Coast Tsimshian had been a “fishing people”.  In the words of the trial judge:

... Indeed, their very existence is attributed to the abundance of marine and riverine foods available to them.  There are, however, two types of Fish Resources that supersede all others in their influence on Coast Tsimshian history and culture, and those are eulachon and salmon.  These fish dictated where and how the pre-contact Coast Tsimshian spent their time during the year.  They were revered in ritual, endowed with supernatural qualities in the halait, or adaawx, and formed the core of the subsistence economy.  All other Fish Resources pale by comparison.  [At para. 225; emphasis added.]

[21]         With respect to “Trade in General”, the Court noted the appellants’ position that “trade in a variety of products, especially Fish Resources, was an integral part of the distinctive Coast Tsimshian pre-contact culture”; and Canada’s position that any exchange of goods amongst the Coast Tsimshian or between them and other groups was for sustenance, or only incidental, and not integral to their society,  and that while a surplus of food was produced, it was used only for survival during the winter months and to allow House Groups to participate in the “prestige economy” of ceremonial exchange.  (Para. 274.)  In response, Satanove J. set out two basic distinctions that guided her analysis:

I think it is necessary to separate trading activities by the Coast Tsimshian in other goods from trading specifically in Fish Resources and Products.  The specific activity relied upon by the plaintiffs to support their aboriginal right is trading in Fish Resources and Products on a scale akin to commercial.  Thus, even though trade by the pre-contact Coast Tsimshian of slaves, or coppers, or other luxury products might have been an integral part of their culture, this trade alone would not be sufficient to prove an aboriginal right to commercial fishing.  Similarly, I think it is important to consider the activities of harvesting and producing Fish Resources separately from trading Fish Resources.  The activity of harvesting and processing Fish Resources and Products might be an integral part of the plaintiffs’ culture, but would not on their own support a right to fish for commercial purposes.  [At para. 275.]

[22]         After noting starkly different positions taken by Dr. Anderson, an anthropologist with expertise in the Tsimshian culture and language, and Dr. Lovisek, an anthropologist/ethno-historian (see paras. 276-9), the trial judge considered in depth the evidence of Dr. Langdon, an economic anthropologist, to assist in determining the nature of the pre-contact Coast Tsimshian economy.  Although Dr. Langdon had written in his report that the Coast Tsimshian had utilized the “market principle” and participated in the “marketplaces” such as the gathering of the tribes at the Nass River, he also admitted in cross-examination that:

… a potlatch, by which he said trade was conducted and regularized, is not a marketplace because there are no direct exchanges.  People are not bringing surplus production with the expectation of finding others with whom to exchange goods.  Distribution and sharing amongst the foraging community is not a marketplace because the notion of a marketplace involves populations from discrete communities coming together at a place to exchange goods that they do not have access to on a yearly basis.  Even feasts and reciprocating feasts, although a form of exchange, are not a marketplace.  [At para. 288.]

[23]         While recognizing that our notion of markets and marketplaces has evolved considerably since the 18th century, the trial judge was satisfied from the evidence that the pre-contact Coast Tsimshian economy could not be described as a “market economy”.  (Para. 289.)  Rather, the evidence reviewed at paras. 290-315 led to the conclusion that theirs was a form of “kinship economy” (with “gift giving” at its heart: see para. 299) as that term is used by anthropologists.  Again, Satanove J. relied in part on evidence given in cross-examination by Dr. Langdon, who noted in particular the limited ability of the Coast Tsimshian to mobilize labour beyond the range of kinship and “facilitation by kinship mechanisms of the establishment of relations with distant groups from other ethnic backgrounds.”  (Para. 297.)  The kinship economy produced a surplus of food products, including fish, but such surpluses were “primarily used for subsistence during the winter months”.  Trade in surpluses appeared to have occurred “only incidentally, in rare times of famine.”  (Para. 315.)

[24]         The trial judge reviewed the Coast Tsimshian pre-contact trade in “wealth goods”, which consisted mainly of eulachon grease, slaves, coppers and dentalium (shellfish found on the ocean bottom).  Historical literature also mentioned sea otter, elk and beaver skins but as the trial judge noted, there was little mention of fish (or “Fish Resources”) in this context.  (Para. 350.)  She noted that the trade in eulachon oil along routes referred to as “grease trails” permitted the Tsimshian to import products such as moose hides, groundhog pelts and moose meat.  She concluded:

... Thus large scale pre-contact trade dealt mainly with exporting eulachon grease from the Nass estuary throughout the North West Coast.  The Tsimshian effected control over coast to interior trade in part by relocating their summer residences from resource producing zones in the tributary valleys to the Skeena River itself.

The evidence of the grease trails together with the rest of the evidence on eulachon establishes without a doubt that the pre-contact Coast Tsimshian were important traders in eulachon oil.

The evidence on wealth goods as a whole is a strong indicator that pre-contact Coast Tsimshian trade revolved around these types of goods and the prestige that they signified, as distinct from subsistence goods.  [At paras. 351-3; my emphasis.]

As is apparent from paras. 354-82 of the reasons, the nature and extent of this trade changed dramatically as a result of the fur trade, which “permeated the beginning of European contact and influence.”  (Para. 383.)

[25]         At para. 384, the trial judge then turned to Coast Tsimshian trade in fish generally.  She noted at the outset that:

The Supreme Court of Canada has recognized the need to make inferences about the existence and integrality of a pre-contact aboriginal practice when direct evidence is not available (R. v. Sappier).  It is trite law, however, that inferences can only be drawn from proven facts, otherwise they are mere speculation.  Furthermore, other equally reasonable inferences that can be drawn from the same proven facts may prevent the finder of fact from relying on an inference alone to reach a conclusion.  [At para. 386.]

[26]         She examined the opinions and evidence of the appellants’ experts, Drs. MacDonald, Anderson and Langdon, all of whom concluded in their reports that the Coast Tsimshian were “great traders” in Fish Resources.  On a close analysis, she found the evidentiary basis for their conclusion to be “seriously lacking”.  Again, she carried out a careful review of the proffered evidence, including 15 volumes of so-called “primary sources” relied on by Dr. Anderson, and oral histories which in general did not refer to trade in fish.  (Para. 416.)  The oral histories mentioned salmon only in times of famine.  Satanove J. concluded that it was reasonable to infer that salmon was not mentioned “because it was common to all, and usually in such abundance that it was not a sought after trade good.”  (Para. 428.)  She described Dr. Anderson’s report as “geared to rationalizing her key opinion that the Coast Tsimshian engaged in extensive and far-flung trade of large quantities of Fish Resources ... long before contact with Europeans”, and summarized her assessment of this expert’s evidence thus:

There is no doubt that the Coast Tsimshian supplied the marine fur traders and the HBC with large quantities of fresh and processed Fish Resources in exchange for European goods and sometimes other aboriginal goods, such as grease.  The HBC depended on the Coast Tsimshian for fish and meat in relatively large volumes, although the demand for salmon was never sufficient for HBC to market it commercially.  (Alicja Muszynski, “Major Processors for 1940 and Early Labor Force: Historical Notes” in Patricia Marchak, Neil Guppy and John L. McMullan, eds., Uncommon Property (Toronto:  Methuen, 1987)).

The market and exchange system, however, created by the fur traders’ necessity for sustenance cannot be attributed to the indigenous society.  In my opinion, this is a prime example of an activity that came about “solely as a response to European influences” (R. v. Van der Peet, p. 562).

I have concluded that the Coast Tsimshian did trade in prestige goods, such as eulachon or mountain goat grease, before the arrival of the Europeans.  Dr. Anderson, however, makes no distinction between trade in subsistence goods and trade in luxury items.  In my view, this is a key flaw in her expert opinion.  I agree that trading in luxury, exotic, specialized goods such as coppers, slaves, dentalium or grease was integral to potlatch exchange, wealth, rank, etc. and therefore can be said to be integral to the distinctive Coast Tsimshian society.  However, the little evidence of trade in subsistence goods such as Fish Resources and Products indicates that with respect to these items, such trade that did exist was only occasional and for survival, not commercial purposes.

I am aware of Justice Bastarache’s comment in R. v. Sappier that a survival activity is usually not (although sometimes can be) a distinctive element of a society.  I do not think that selling food during occasional periods of famine fits within the definition of “integral to a distinctive society”.  [At paras. 433-36; emphasis added.]

[27]         The Court found more persuasive the evidence of Dr. Lovisek, an expert retained by Canada.  Dr. Lovisek found “next to no evidence” of trading in fish resources in the oral histories or in the written historical record of the Coast Tsimshian.  This expert described the trade in salmon between the Aboriginals and maritime fur traders shortly after contact as insignificant, noting that “salmon could be obtained for a mere trifle, principally leaf tobacco in small quantities.”  (Para. 462.)  Salmon was “not a commodity for trade because it was considered sustenance.  It may have been traded for hospitality and used to distribute at feasts, but it did not play a role as a commodity.”  More importantly, Dr. Lovisek concluded that although the harvesting of “selected marine resources” such as spawning salmon was integral to the distinctive culture of the Coast Tsimshian for food and ceremonial purposes, the commercial use of such resources was not integral to that culture.  In her analysis:

... the commercial use of marine resources was not integral to the distinctive culture of the Skeena River Peoples [Coast Tsimshian], who instead valued marine resources for their food and ceremonial value and associative social and political importance related to the potlatch or feast. The existence of property concepts associated with the ownership of access to certain marine resources like salmon and eulachon (although not all precontact groups had access to eulachon), the deposition of usufructuary rights to access marine resources, the use of marine resources for feasts and gifts, and the exclusion of most marine resources as “wealth” items which were exchanged, moderated against the importance of marine resources for commercial purposes.  [At para. 482; emphasis added.]

[28]         The trial judge preferred not to decide whether to accept Dr. Lovisek’s definition of “commercial” as “the exchange of large quantities of a marine resource to unrelated persons or persons outside a kinship network,” but she was satisfied the evidence clearly showed that in any event, the Coast Tsimshian trade in Fish Resources was not “of a scale akin to commercial.” (Para. 483.)  The only exception to this conclusion related to eulachon grease.  Dr. Lovisek wrote:

Often called a luxury good, it is debatable if it can be considered integral to the distinctive culture of the Skeena River Peoples, since not all precontact groups as identified in the archaeological record at Prince Rupert Harbour, had access to it.  While it was a desirable commodity for food and exchange, it was often described as a luxury and used by elites to obtain other wealth-related goods.  Eulachon, which were preserved into grease, were not harvested or preserved from locations owned by the Skeena River Peoples, but from locations along the Nass River where they had usufructuary rights of access, along with many other native groups.  [At para. 484; emphasis added.]

The trial judge found that eulachon oil harvested from “locations along the Nass River where the Coast Tsimshian had usufructuary rights of access only”, was clearly integral to the Coast Tsimshian distinctive culture.  The same was not true of other Fish Resources.  In her words:

The absence of references to Fish Resources and Products in the ethnographic and historical sources, when contrasted with the importance of pre-contact Coast Tsimshian kinship, availability of food, and elaboration of the potlatch post-contact, carries significant weight.  In other words, the facts upon which the plaintiffs rely on to support the inference that there must have been plenty of trade in fish, should also have led to plenty of references to trade in fish in the historical and ethnographic sources.  The fact that there is a dearth of references in the historical and ethnographic sources leads to the equally reasonable inference that trade in subsistence goods was not a significant aspect of Coast Tsimshian pre-contact culture and not integral to their distinctive society.

In my opinion, simply put, the plaintiffs have not discharged their burden of proof on a balance of probabilities that they traded in Fish Resources and Fish Products on a sale akin to commercial, before 1793, the date of contact.  [At paras. 486-7; emphasis added.]

[29]         At paras. 488-503, Satanove J. summarized her conclusions with respect to the three basic steps of assessing a claim to an Aboriginal right.  As before, she described the right asserted in this case as the “right to harvest and sell on a commercial scale the Fish Resources and Products in Claimed Territories.”  The Lax Kw’alaams had succeeded in proving that their pre-contact society was organized by way of four clans, numerous house groups and ten tribes and that they had descended from those tribes, nine of which still exist.  They had established generally that their predecessors had fished and lived in the Prince Rupert Harbour area on the Dundas Island Group, and along the mouth and some of the tributaries of the Lower Skeena River.  They had proven that the Coast Tsimshian had harvested a wide variety of fish and that “the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption”, was an integral part of their distinctive culture.  The Coast Tsimshian had existed primarily “within a subsistence economy until the arrival of the fur traders who influenced the creation of trade monopolies and chiefdoms”.  Although “some form of loosely termed trade” prior to contact had been shown, it had involved “primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium and eulachon grease.”

[30]         The trial judge was not satisfied, however, that trade in any fish or fish products other than eulachon grease could properly be described as integral to their distinctive culture.  In a crucial passage, she elaborated:

In particular, I am of the view that the plaintiffs have failed on the second step to prove on a balance of probabilities that their predecessors conducted a trade in Fish Resources and Products, before contact with Europeans, that in any way was “a central and significant part of their society’s distinctive culture”, or in any way “made [their] society truly what it was” (R. v. Van der Peet).  I agree with the defendant’s submission that trading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society.

The plaintiffs submit that at the very least, there is significant direct evidence that the Coast Tsimshian traded large amounts of eulachon and eulachon grease to other groups who did not have the same access to eulachon as they did.  They submit that this evidence should be enough to satisfy the second step of establishing an aboriginal right.  They rely on the principle espoused in R. v. Van der Peet and R. v. Sappier that the specificity of the right does not pertain to the species fished, but rather to the persons fishing, the area in which they fished and the purpose for which they fished.

I agree that an aboriginal right, once proven, is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the aboriginal right is based.

However, the plaintiffs’ simplistic position that the 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.  The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.

Furthermore, eulachon were not harvested and preserved in Coast Tsimshian territory, but from locations where they, along with other aboriginal groups, received limited permission from the Nishga to fish.  The Plaintiffs cannot support a claim to fish commercially all species in their Claimed Territories on a pre-contact practice that was carried on outside of their Claimed Territories.  The Plaintiffs may be able to establish an aboriginal right to fish eulachon at the Nass for commercial purposes along with other First Nations, but this was not the issue before me, and I make no judgement in this regard

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.

As the plaintiffs have failed to satisfy the onus of proof on them in the second step, they have not proved an aboriginal right capable of protection under s. 35 of the Constitution Act.  There is no need to consider step three, the effect of existing fishing legislation, because there can be no infringement if there is no proven existing aboriginal right.  [At paras. 496-502; emphasis added.]

In the result, the Lax Kw’alaams’ claim for a declaration that they hold an Aboriginal right to harvest and sell on a commercial scale all species of fish in their Claimed Territories was dismissed.

On Appeal

[31]         The appellants submit in their factum that Satanove J. erred “in determining that the pre-contact Coast Tsimshian practice of harvesting and trading euchalon and euchalon grease on a commercial scale did not entitle the Lax Kw’alaams to a modern aboriginal right to harvest marine resources for commercial purposes.”  (My emphasis.)  This submission is not only conclusory, but assumes that the Coast Tsimshian trade in eulachon and eulachon grease was found by the trial judge to have taken place “on a commercial scale”.  In fact, the trial judge expressly declined to reach any judgement as to whether the Lax Kw'alaams could establish a right “to fish eulachon at the Nass for commercial purposes along with other First Nations” because that had not been the issue before her.  (Para. 500.)  Nor did she make any finding of continuity in respect of what she called the “loosely termed trade” in eulachon grease in general.

[32]         The more specific errors advanced by the appellants are stated in their factum as follows:

Specifically, she erred by:

1.         incorrectly applying a single-species approach to defining the Lax Kw’alaams’ fishing rights;

2.         failing to consider the eulachon fishery in the context of the pre-contact Coast Tsimshan way of life;

3.         failing to consider the aboriginal right in modern-day circumstances; and

4.         incorrectly analyzing the geographical element of the eulachon fishery and the aboriginal rights claims.

The first three grounds are obviously inter-related.  The appellants say they are issues of ‘legal principle’ and counsel for Canada seemed content to treat them as questions of law.

A ‘Single Species’ Approach?

[33]         The first ground of appeal is asserted notwithstanding the trial judge’s correct statement of law, based on Van der Peet and Sappier, that “the specificity with which the claim must be characterized does not pertain to the species fished, rather it relates to persons, area and purpose.”  (Para. 100.)  The appellants rely on R. v. Powley [2003] 2 S.C.R. 207, which concerned the rights of Métis under s. 35 of the Constitution Act, 1982 in the context of a charge that by hunting for moose on Crown land, they had violated the Game and Fish Act, R.S.O. 1990, c. G-1.  Since the moose had been intended to “provide meat for the winter”, the Court characterized the right asserted as the “right to hunt for food in the environs of Sault Ste. Marie.”  In the Court’s words:

We agree with the trial judge that the periodic scarcity of moose does not in itself undermine the respondents’ claim.  The relevant right is not to hunt moose but to hunt for food in the designated territory.  [At para. 20; emphasis added.]

[34]         The appellants take from this that the Court held that Aboriginal rights are not, as a matter of principle, species-specific; but in fact the Supreme Court said only that Aboriginal hunting rights are “contextual and site-specific.”  (Para. 19.)  In Sappier, the Supreme Court did not adopt, at least expressly, the comment of the New Brunswick Court of Appeal ((2004) 242 D.L.R. (4th) 433, para. 33) that it is “not permissible to characterize an aboriginal right in terms of the species of fish being harvested (e.g., perch or salmon).”  The Supreme Court in Sappier instead emphasized, echoing the trilogy, that Aboriginal rights are founded on practices or customs that were integral to the distinctive pre-contact culture, and that they are “not generally founded upon the importance of a particular resource.”  (Para. 21.)

[35]         It seems to me axiomatic that the facts of each case will determine the nature and breadth of the practice, custom or tradition in question and at the end of the analysis, of the right to be accorded constitutional status.  As Bastarache J. stated in Sappier:

... The goal for courts is ... to determine how the claimed right relates to the pre-contact culture or way of life of an aboriginal society. This has been achieved by requiring aboriginal rights claimants to found their claim on a pre-contact practice which was integral to the distinctive culture of the particular aboriginal community. It is critically important that the Court be able to identify a practice that helps to define the distinctive way of life of the community as an aboriginal community. The importance of leading evidence about the pre-contact practice upon which the claimed right is based should not be understated. In the absence of such evidence, courts  will find it difficult to relate the claimed right to the pre-contact way of life of the specific aboriginal people, so as to trigger s. 35 protection.  [At para. 22.]

In some cases, the practice by its very nature will refer only to one species: most notably, in Galdstone, it involved only herring spawn on kelp and the resulting right was so delineated.  In other instances, the practice will be a wider one and may include a particular purpose or a specific location – e.g., harvesting wood for domestic use in Sappier, fishing for food in Lake Frances in R. v. Adams [1996] 3 S.C.R. 101, exchanging fish “for money or other goods” in N.T.C. Smokehouse.

[36]         As we have seen, the trial judge in the case at bar was asked to find in favour of a broad right to harvest all species of fish and to trade in them on a scale akin to commercial, based on a practice of trading in eulachon grease for certain specific purposes integral to the Coast Tsimshian culture.  She found that the evidence supported the existence of “some form of loosely termed trade” in luxury goods, including eulachon oil and grease.  She accepted that “an aboriginal right, once proven, is not limited in terms of species of the specific resource which formed the subject of the ancestral activity” on which the right is based; but the evidence of the activity proven here (the “loosely-termed trade”) was tied specifically to eulachon grease and was found not to be related to the (subsistence) harvesting of other fish.  This distinction related both to the purpose of the activity in question and to its scale and has support in the case-law.  The facts are obviously reminiscent of those in N.T.C. Smokehouse, where Chief Justice Lamer wrote for the majority:

... The findings of fact made by the trial judge do not support the appellant's claim that, prior to contact, the exchange of fish for money or other goods was an integral part of the distinctive cultures of the Sheshaht or Opetchesaht. Sales of fish that were “few and far between” cannot be said to have the defining status and significance necessary for this Court to hold that the Sheshaht or Opetchesaht have an aboriginal right to exchange fish for money or other goods. Further, exchanges of fish at potlatches and at ceremonial occasions, because incidental to those events, do not have the independent significance necessary to constitute an aboriginal right. Potlatches and other ceremonial occasions may well be integral features of the Sheshaht and Opetchesaht cultures and, as such, recognized and affirmed as aboriginal rights under s. 35(1); however, the exchange of fish incidental to these occasions is not, itself, a sufficiently central, significant or defining feature of these societies so as to be recognized as an aboriginal right under s. 35(1). The exchange of fish, when taking place apart from the occasion to which such exchange was incidental, cannot, even if that occasion was an integral part of the aboriginal society in question, constitute an aboriginal right.  [At para. 26; emphasis added.]

(Satanove J. went farther than this passage might have indicated, holding that because the exchange of eulachon grease was integral to “potlatch exchange, wealth, rank, etc.”, it could be said to be integral to the distinctive Coast Tsimshian society itself.  (Para. 435.))  She did not make similar findings regarding the harvesting of fish generally.

[37]         The Supreme Court of Canada has clearly modified the law in minor ways since the trilogy (see para. 47, infra); but I do not read any of the cases to which we were referred as altering the fundamentals of the analysis established in the trilogy, particularly the emphasis on the role of the practice or activity in question in the Aboriginal way of life prior to contact.  It seems to me there is much to be said for the submission of Mr. Lowes, counsel for three intervenors, who reviewed the relevant authorities of the Supreme Court of Canada to show that in each instance, the Court’s delineation of the Aboriginal right was “contextual” and that the Court has “not categorically excluded species specificity in the definition of an aboriginal right, but has left it (as in the case of other factors, such as site- or purpose-specificity), a matter of relevance and context in particular cases.”  These intervenors continue:

Substantively, specificity is required to ensure that the scope of the exception to the principles of universality and equality is confined to the reason and justification for that exception: i.e., the prior presence of organized societies. From this flows the search for “aboriginality”, and aboriginal identity by focusing on the significant elements of aboriginal society and culture. Specificity is required: first, to distinguish between activities which are rooted in the traditions of a particular culture, and those which are common to human society generally; and second, to distinguish between practices, customs and traditions which are culturally significant, and those which are not.

As a matter of process, the requirement of specificity enables aboriginal rights to be defined by regular courts following regular process. To define the claimed right in specific terms enables the court to focus on a particular lis. In short, specificity is essential for a court of law to fulfill its function, and not usurp that of treaty negotiations, legislation or government policy.  [Emphasis added.]

Mr. Lowes suggests that the question in each case is whether the “practice, custom or tradition” can be accurately described without reference to a specific species – where “to omit the reference to the species is to mis-describe the practice, custom or tradition that is integral to the aboriginal culture or way of life.”  By way of illustration, he notes that a distinctive feature of many North American families is that at Christmas, they cook a turkey.  It would not be sufficiently descriptive of the cultural practice simply to say that they “eat” or “prepare food”.  Similarly, if there were an Aboriginal custom of harvesting maple sap, it would not make sense to delineate that practice as ‘harvesting sap from trees’.

[38]         In the case at bar, I agree that it would be mis-describing the “practice” found by Satanove J. to be integral to the Coast Tsimshian society, as “harvesting and trading in Fish Resources.”  What was integral was the production of eulachon grease for use incidental to particular wealth exchange processes.  To describe that practice as “harvesting fish”, or “trading in fish” would not accurately describe it, nor capture the ‘aboriginal specificity’ of the practice, in my respectful opinion.

[39]         In his able argument for the appellants, Mr. Kirchner submitted that the trial judge should have considered the relevant “practice” in this case to be “fishing”.  Aside from the fact that there was no authority for the proposition that an Aboriginal practice of fishing gives rise ipso facto to a modern right to fish commercially, the trial judge did not find that “fishing” without more was a practice integral to the Coast Tsimshian culture.  Indeed, counsel acknowledged that had such a right been claimed, it likely would have been found to be too general – as occurred in Sappier in connection with the claim to an Aboriginal right to “harvest wood.”  The Court stated that a right framed in this manner would not be sufficiently specific: “it is critical that the Court identify a practice that helps to define the way of life on distinctiveness of the particular aboriginal community.”  (Sappier, para. 24.)  Accordingly, the Court settled on a “right to harvest wood for domestic uses as a member of the aboriginal community” as satisfying the requirement for “aboriginal specificity.”

[40]         In summary, I agree with Mr. Lowes that the trial judge may have mis-spoken when she said at para. 498 that an Aboriginal right “is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the Aboriginal right is based.”  If by this she meant that as a matter of law, species can never be a relevant factor in the delineation or characterization of an Aboriginal right protected under s. 35, I would again note Gladstone, where the right was defined in terms of herring spawn on kelp.  Again, it is a question of the specific practice in each case.  The particular practice in this instance happened to be tied to one species of fish and one product traded in a particular manner.  I see no error in the trial judge’s overall conclusion.

“Frozen” Rights?

[41]         I propose to deal with the appellants’ second and third challenges to the trial judge’s finding regarding trade on a commercial scale, together.  The appellants contend that the Court failed to consider the eulachon fishery in the context of the pre-contact Coast Tsimshian way of life and failed to consider the Aboriginal right in modern day circumstances.  The crux of the appellants’ argument on the first point is expressed in their factum thus:

The trial judge’s approach also fails to consider the aboriginal rights claimed in relation to the pre-contact way of life of the Coast Tsimshian as required by Sappier.  The eulachon fishery was not a unique practice; rather, it was part of the seasonal round of fishing activity that formed the economic base of the Coast Tsimshian pre-contact society.

Eulachon are fish and the pre-contact practice associated with the eulachon fishery was fishing.  Eulachon were harvested, processed into fish products and traded to buyers who consumed the products.  There is no principled basis to distinguish eulachon fishing from other kinds of fishing.  To do so is to apply the rejected single-species approach.

The eulachon fishery was an essential part of the Coast Tsimshian seasonal round and way of life.  The nutritious rendered grease was a food source consumed by the Coast Tsimshian and a wealth good traded by them on a large scale. Eulachon, together with salmon, “formed the core of the subsistence economy”. It cannot be separated from subsistence fishing.  [Emphasis added.]

[42]         This submission again overlooks the distinction made by Satanove J. between Coast Tsimshian activities with respect to eulachon, and the subsistence harvesting of salmon, halibut and other fish.  Most importantly, while eulachon and eulachon grease were consumed by the Coast Tsimshian, the eulachon fishery was carried out for additional purposes that were different from the subsistence harvesting of other fish.  (On this point I digress to note a passage from Mitchell and Donald, supra, that highlights the special role played by eulachon in the way of life of the Coast Tsimshian and others, probably after European contact:

“First eulachon” rites were reported by Drucker’s (1950:222) informants for the Haihais, Gilutsau Coast Tsimshian, and the Sanya and Chilkat Tlingit.  In the test dealing with Kitkatla Tsimshian fishing rituals, Beynon (1916) wrote, for example, “if a man got the oolichan he would give it to the oldest child of his oldest brother and the brother would have to give gifts,” while his Metlakatla Tsimshian informant told him, “The first oolichan caught would be taken by the paternal uncle to his brothers children and given them (Beynon, 1929-30: 44).  Among several taboos concerning eulachon, Beynon (1929-30:44) mentions that “No one was allowed to make any ridiculous remark concerning the oolichans for fear the fish would go away and the people would starve.”

Each Nuxalk fisherman collected his initial catches in a box.  None of this might be eaten until there was sufficient to host a feast grand enough that guests would have plenty to take home with them.  Women were tabooed from sharing this first meat and were not allowed to assist in the fishing or even to be on the bank of the river while the eulachon were running.)

[43]         As has been seen, the eulachon was processed in a special way into a different product – grease or oil.  That product was prized for its preservative purposes – again unlike salmon, halibut, etc.  Trade in eulachon grease was, like trade in copper, slaves and dentalium, found to be integral to “potlatch exchange, wealth, rank, etc.” and was thus integral to the distinctive Coast Tsimshian society.  (Para. 435.)  The trade was a special kind, unlike commercial trade in this century or the 18th century; in the Coast Tsimshian culture, “material goods or wealth became valuable by being given away:  exchange in the form of gift-giving was expected to be reciprocal.”  (Para. 305.)  In contrast, virtually no trade or exchange took place in salmon or other fish, either for ceremonial or subsistence purposes – they were in such abundance that trade was all but unnecessary.  This distinction drawn by the trial judge is not an arbitrary or unprincipled one, and in my view recognizes the particular pre-contact way of life of the Coast Tsimshian.

[44]         With respect to the appellants’ claim that the trial judge failed to consider the “Aboriginal right in modern day circumstances”, there can be no doubt that Aboriginal rights must be determined “flexibly” (see R. v. Sparrow [1990] 1 S.C.R. 1075 at 1093); that they must be permitted to maintain contemporary relevance in relation to the needs of the claimants and their practices, traditions and customs (Van der Peet, at para. 172, per L’Heureux-Dubé J.); and that “ancestral trading activities are not frozen in time.”  (Per Chief Justice McLachlin in R. v. Marshall 2005 SCC 43, [2005] 2 S.C.R. 220 (a treaty case) at para. 16; Van der Peet, at para. 64.)  The appellants argue that the eulachon fishery and trade in eulachon grease was “an integral part of the pre-contact Coast Tsimshian economy, which was based on fishing.  This economy evolved following contact into a modern fishing economy based on trade and sale in other species.”  Aside from the focus on the Coast Tsimshian economy as opposed to culture or way of life, this statement again disregards the distinction made by the trial judge between the purpose and scale of the trade in eulachon grease, and the very rare exchanges in salmon and other fish in times of famine.  The trade that developed in salmon after contact was found to be a “prime example of an activity that came about ‘solely as a response to European influences’”.  (Para. 434.)

[45]         The trial judge concluded that it was “stretching the concept of an evolved aboriginal right too far” to find that the Coast Tsimshian practice of trading in eulachon grease is “equivalent to a modern right to fish commercially all species”.  (Para. 501.)  With respect, the question was not whether the two are “equivalent”, but whether the commercial fishery sought by the Lax Kw'alaams can be said to be the “logical evolution” of the traditional practices with respect to eulachon grease:  see Marshall (2005).  Chief Justice McLachlin speaking for the majority in that case explained:

Of course, treaty rights are not frozen in time. Modern peoples do traditional things in modern ways. The question is whether the modern trading activity in question represents a logical evolution from the traditional trading activity at the time the treaty was made: Marshall 2, at para. 20. Logical evolution means the same sort of activity, carried on in the modern economy by modern means. This prevents aboriginal rights from being unfairly confined simply by changes in the economy and technology. But the activity must be essentially the same. “While treaty rights are capable of evolution within limits, ... their subject matter ... cannot be wholly transformed” (Marshall 2, at para. 19).

In summary, what the treaty protects is not the right to harvest and dispose of particular commodities, but the right to practice a traditional 1760 trading activity in the modern way and modern context. The question is whether the logging here at issue is the logical evolution of a traditional Mi'kmaq trade activity, in the way modern eel fishing was found to be the logical evolution of a traditional trade activity of the Mi'kmaq in Marshall 1.  [At paras. 25 and 26; emphasis added.]

and further:

Thus, to insist that the pre-sovereignty practices correspond in some broad sense to the modern right claimed, is not to ignore the aboriginal perspective. The aboriginal perspective grounds the analysis and imbues its every step. It must be considered in evaluating the practice at issue, and a generous approach must be taken in matching it to the appropriate modern right. Absolute congruity is not required, so long as the practices engage the core idea of the modern right. But as this Court stated in Marshall 2, a pre-sovereignty aboriginal practice cannot be transformed into a different modern right.  [At para. 50; emphasis added.]

[46]         In Marshall (2005), the Supreme Court could find no reason to interfere with the lower court’s findings that “the commercial logging that formed the basis of the charges against the respondents was not the logical evolution of traditional Mi'kmaq trading activity protected by the treaties of 1760-61.”  (Para. 35.)  The Supreme Court also noted the lower court’s ruling in R. v. Marshall (2001) 191 N.S.R. (2d) 323 (Prov.Ct.), which had distinguished between gathering and using forest products to make items such as canoes, baskets, snowshoes and toboggans on the one hand, and what the lower court had referred to as “trade in logging” on the other hand.  (See Marshall (2005) at para. 32.)

[47]         Of the non-treaty cases, the case most comparable to the case at bar would appear to be N.T.C. Smokehouse, where the Supreme Court ruled that exchanges in fish incidental to ceremonial occasions did not give rise to a commercial fishing right, in that instance because the test of integrality had not been met.  (See especially paras. 55-6.)  The law has clearly evolved since the trilogy as Canadian courts continue to find their way with respect to Aboriginal claims.  The Supreme Court has now found that “fishing for food can, in certain contexts, meet the integral to a distinctive culture test.”  The Court has also discarded the notion that the pre-contact practice on which the right is based “must go to the core of the society’s identity, i.e., its single most important defining character.”  (Sappier at para. 40.)  Nevertheless, the Court referred several times in Sappier to Van der Peet and the framework of analysis established by the trilogy and stated in clear terms that the court’s focus in Aboriginal rights cases must be on the “pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits.”

[48]         I am not persuaded that there is any basis on which we can or should interfere with the trial judge’s conclusion in the case at bar that there did not exist, prior to European contact, a practice of trading in fish and fish products that could be said to be integral to their distinctive society and that could be said to be the precursor of a modern commercial fishery.

Nisga’a Permission

[49]         The fourth error advanced by the Lax Kw’alaams stems from the trial judge’s observation at para. 222 that it was “not clear” whether historically, the Coast Tsimshian could fish for eulachon at Fishery Bay (the mouth of the Nass) or elsewhere on the Nass without the permission of the Nisga’a.  This was followed by her finding at para. 224 that it was “more likely than not that the Coast Tsimshian fished there only with the permission of the Nishka, only for eulachon and only during the few weeks of the eulachon season.”

[50]         The appellants accept that this was a finding of fact which must be shown to be clearly and palpably wrong if they are to succeed on this ground.  They contend first that the evidence for such a finding was required to be “clear, convincing and cogent”, citing a statement in F.H. v. McDougall 2008 SCC 53, [2008] 3 S.C.R. 41.  There, the Court stated in connection with an historical sexual assault that:

... evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.  But again, there is no objective standard to measure sufficiency.  In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant.  As difficult as the task may be, the judge must make a decision.  If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.  [At para. 46.]

I read this and similar cases dealing with ‘historical’ allegations of serious misconduct, simply as requiring sufficiently cogent evidence to meet the usual civil standard.  In the context of Aboriginal law, a similar principle seems to have been emphasized by Chief Justice McLachlin for the majority in Mitchell v. M.N.R. [2001] 1 S.C.R. 911, where she emphasized that although Aboriginal claimants need not establish a pre-contact practice by conclusive or direct evidence, the pre-contact practices accepted by the Court in cases such as Adams and Gladstone had been proven by “clear evidence”.

[51]         I am not persuaded that by describing the evidence regarding the necessity for Nisga’a permission as “not clear”, the trial judge meant that she was unable to decide the issue – obviously she did do so.  As far as historical evidence generally is concerned, the trial judge correctly noted at para. 40 of her reasons that while such evidence “should not be undervalued simply because [it] does not conform precisely to the evidentiary standards that would be applied in a private law case, neither should it be tasked to carry more weight than it can reasonably support,” citing Van der Peet, Mitchell and Sappier.

[52]         The appellants also contend that in any event there was “no evidence” of the Coast Tsimshians’ obtaining Nisga’a permission to fish in the disputed areas and that the only evidence referred to by the trial judge relates to modern-day claims by the Nisga’a.  They note, for example, that Dr. Lovisek makes no mention of Nisga’a consent or permission in her description of the eulachon fishery in the following passage from her book:

The eulachon fishery illustrates how native groups like the Coast Tsimshian could hold rights to resources in a variety of locations, not all of which fall into a conventional idea of geographically contiguous territory.  Although Mitchell and Donald provide little concrete information, it appears that native groups maintained their rights by using them regularly and being prepared to fight anyone who trespassed.  Such rights could be obtained through marriage, inheritance, gift of seizure, in the latter case, by specifically by killing [sic] the owner of the right.  In this way, “outsiders” could obtain access to participate in the fishery.  What was owned, Mitchell and Donald are careful to state, was the right to fish for eulachon at a particular portion of the fishing grounds.  Rights to fish for eulachon, for example, did not extend to other rights to resources like salmon.  But certain other rights came with the rights to take eulachon, like the right to put up a dwelling for the duration of the fishery and the right to collect firewood for the processing of oil or drying fish for domestic purposes.

We were also referred to the comments of Mitchell and Donald themselves, supra, who write that “Fishing [for eulachon] was not ‘open to all’ but only to those kinship groups who had acknowledged rights ... at a particular fishery.”  They continue:

... Taking the Nass fishery as an example, we can note that, although a few Tlingit groups did have eulachon fishing rights, most of the Tlingit and all of the Haida who arrived at eulachon season, came solely to trade, for they had not acknowledged eulachon fishing rights on the Nass.  So “hosts” tolerated “visitors” on the eulachon grounds if they had a publicly recognized claim to a eulachon fishing locale in part at least because the cost of excluding them would have been too high – potentially annual warfare just when all available hands were needed for the fishery – and in part because widely held notions of property and ownership recognized that groups could hold rights to a resource in a variety of locales, not all of which had to fall within a conventionally bounded territory.  [At 31.]

The authors go on to suggest that rights to “use a resource locale” were normally acquired by marriage, inheritance, gift or seizure (after “killing the current owner”).

[53]         Mr. Mackenzie on behalf of Canada referred us to various pieces of evidence from various experts that do support Satanove J.’s finding, including the testimony of Dr. Anderson to the effect that the Nisga’a regard the eulachon fishery at the mouth of the Nass as within their traditional territory and that if the Coast Tsimshian trespassed on Nisga’a territory without permission, “[t]hey would expect to be punished.”

[54]         Having reviewed all of the evidence to which we were directed on this issue, I am satisfied there was support for a finding regarding the necessity for “limited permission” from the Nisga’a to take eulachon from the Nass River prior to contact.

[55]         The more difficult question is whether the trial judge erred in law in denying any fishing right based on exclusive use or occupancy of the fishing areas, as opposed to use in common with other Aboriginal groups.  As the Lax Kw’alaams point out, their claim to Aboriginal title was severed off from this proceeding.  (See infra, para. 7.)  I do find puzzling the trial judge’s statement at para. 500 that “the plaintiffs cannot support a claim to fish commercially all species in their Claimed Territories on a pre-contact practice that was carried on outside of their Claimed Territories.”  (My emphasis.)  Since she defined “Claimed Territories” at para. 2 of her reasons to include areas “along and between the Lower Skeena and Nass”, the eulachon fishery at Fishery Bay and along the Nass would come within “Claimed Territories.”  Whether she intended “Claimed Territories” to mean something different from “Tribal Territories” (defined in the Amended Statement of Claim to refer to the areas shown on the map attached to the pleading) is also unclear.

[56]         If it were the case that the trial judge denied the Lax Kw’alaams’ claim solely on the ground that they did not occupy or use the Nass River fisheries exclusively, I would agree that she erred.  I read her conclusion, however, as turning primarily on the findings that (a) the Coast Tsimshian did not carry on any significant trade in fish or fish products except eulachon grease prior to contact; and (b) “the ancient trade” in luxury goods including eulachon grease was not and could not by its nature and purpose be regarded as “the same sort of activity” as harvesting and trading all species of fish on a scale akin to commercial.

[57]         Accordingly, I would not accede to this ground of appeal.

‘Lesser/Included’ Rights: On Appeal

‘Sustaining the Community’

[58]         The appellants also submit that the trial judge erred in failing, because of a misapprehension of the pleadings, to consider an Aboriginal right to harvest and sell fish “for the purpose of sustaining the Lax Kw’alaams community”, and in failing to find such a right by “not considering potlatch distribution of fish as a basis for the modern right.”  The main thrust of the argument is that having sought a declaration of entitlement to harvest and sell fish on a commercial scale, the trial judge was obliged to consider all lesser rights that might be subsumed in trade on a commercial scale.  In any event, the appellants say, the lesser right of consumption and sale to “sustain the community” was mentioned at para. 31 of the Amended Statement of Claim as follows:

The Lax Kw’alaams Band, or, in the alternative, each Allied Tsimshian Tribe, holds existing aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for consumption and sale to sustain their communities, accumulate and generate wealth and maintain and develop their economy.

[59]         On its face, the phrase “sustain the community” is broad enough to include both fishing for subsistence purposes and trading in fish in exchange for money in a commercial manner, and everything in between.  However, the trial judge said at para. 103 that in the context of the whole pleading and the manner in which the appellants had conducted their case and presented their theory, the phrase appeared to refer to a right to fish for “sustenance or subsistence, not commerce”.  Again, the appellants submit that she erred in this regard and that the phrase should be taken to refer to a lesser right than the right to fish commercially (which latter right they describe as the right to “catch as many fish as one wants”).  In their analysis, a right to consume and sell fish to sustain the community would be subject to “some restrictions,” extending perhaps only to the earning of a “moderate livelihood”.

[60]         The phrase “moderate livelihood” was equated by the majority in R. v. Marshall [1999] 3 S.C.R. 456 (“Marshall (1999)”) with the ability to secure “necessaries”, as contemplated by the treaty at issue in that case.  More tellingly, the phrase was also used by Lambert J.A. in dissent in Van der Peet, (1993) 83 C.C.C. (3d) 289 (B.C.C.A.) at 304.  His suggested analysis, which he described as a “social” test for the identification of the Aboriginal practice being asserted, was found on appeal to be incorrect by the majority of the Supreme Court of Canada in that it elevated the “significance” of the practice in question to the determining factor when it is only one of several factors: Van der Peet, at para. 52.

[61]         Nevertheless, Mr. Kirchner in the case at bar suggested there remains some middle ground between fishing for sustenance purposes and fishing for purposes of a commercial trade, as indicated (he contends) by the “two-step” analysis carried out in the trilogy cases.  In Gladstone, for example, the regulations under which the appellants had been charged prohibited all sale or trade in herring spawn on kelp without a licence, regardless of whether the extent or scale of that sale or trade could reasonably be characterized as commercial in nature.”  The Court addressed both possible characterizations of the appellants’ defence – whether they had an Aboriginal right to exchange herring spawn on kelp for money or other goods or whether they had a further right to sell herring spawn on kelp to the commercial market.  (Gladstone at para. 24; see also N.T.C. Smokehouse at para. 19.)  Of course, the Court was bound to address all defences advanced by the appellants on behalf of their Band; but I do not see how that logic has any application to a civil action, in which the plaintiffs are required to state in their pleading what rights they are claiming.  Obviously, the respondents are entitled to meet only that case.  In the Aboriginal law context, where the rights sought are different from those of all other Canadians, the principle that plaintiffs must be clear about what they are seeking seems particularly important.

[62]         I have no doubt that creative counsel could enunciate any number of ‘lesser rights’ lying on the spectrum between harvesting salmon for subsistence purposes (i.e., food) and harvesting and trading salmon commercially.  (In Ahousaht Indian Band v. Canada (Attorney General) 2009 BCSC 1494, for example, the plaintiffs claimed a “spectrum” of rights in their pleading, set forth at para. 480 of Garson J.’s reasons.)  The question, however, is whether the trial judge here erred in exercising her discretion not to consider some lesser right (which counsel describes as “sale to sustain the community”), in light of the pleadings before her and the course the trial had taken.  She considered that it was too late for the appellants to seek such a lesser right at the late stage at which it was raised.  This was a ‘judgement call’ which the trial judge was uniquely positioned to make.  She obviously knew what arguments had been advanced over the course of the trial, and was better able than we are to gauge what prejudice, if any, the defendant Canada would suffer if she acceded to the appellants’ late articulation of an intermediate right.  To quote from Solosky v. The Queen [1980] 1 S.C.R. 821, she knew by the end of the trial what the “real issue” was.

[63]         Since the appellants have not shown that the trial judge erred in law or exercised her discretion on a wrong principle, I would not accede to this ground of appeal.

FSC Purposes

[64]         A somewhat similar argument was advanced by the appellants in respect of fishing for food, social and ceremonial purposes.  Again, they rely on various references in the pleadings to “consumption” and “sale” or “trade” and submit that the trial judge was simply wrong in stating at para. 105 that an Aboriginal right to fish for FSC purposes was never placed before her as an issue at trial until final submissions.  As I understand it, they do not allege that the trial judge was wrong as a matter of fact, but as a matter of law – that she erred in her characterization of the potlatch exchanges and distributions of fish as a practice that was qualitatively different from the ‘trade in all species of fish on a scale akin to commercial’ that was the focus of the trial.

[65]         It is difficult to separate this submission from the appellants’ arguments in connection with the commercial trade issue, which I have dealt with (rather repetitiously, I fear) above.  Setting that argument aside, however, I am not persuaded there is any basis for this court to find that the trial judge erred in declining to consider an Aboriginal right to harvest Fish Resources for FSC purposes as a separate and intermediate claim, given the pleadings and the course of the trial as seen by the trial judge.  It should not be necessary for a court to try to piece together various obscure references in a pleading in order to discern what is being sought.  Again I would not accede to this objection.

The Gitxaala Nation’s Argument

[66]         Finally under this head I should mention the argument of the Gitxaala Nation, an intervenor, that the template for determining the existence of Aboriginal rights provided by the trilogy in 1996 has been substantially changed by a new “standard of life” approach that was first enunciated in dissent by McLachlin J. (as she then was) in the trilogy, first “took root” in Marshall (1999) and was fully adopted by the Court in Mitchell v. M.N.R.

[67]         It will be recalled that in Marshall (1999), the Court was asked to construe the Mi’kmaq treaties of 1760-1 under which the Mi’kmaq had been promised access to “necessaries” through trade in wildlife.  (The Mi’kmaq did not assert any Aboriginal right outside the treaties.)  The Crown argued that the so-called “truckhouse” clause in the treaties was a time-limited response to a temporary problem that was now essentially spent.  (Para. 54.)  Binnie J. for the majority of the Court rejected that proposition and equated the treaty right to “necessaries” to what Lambert J.A. had described in Van der Peet as a “moderate livelihood”.  (Para. 59.)  Binnie J. continued:

... Bare subsistence has thankfully receded over the last couple of centuries as an appropriate standard of life for aboriginals and non-aboriginals alike. A moderate livelihood includes such basics as “food, clothing and housing, supplemented by a few amenities”, but not the accumulation of wealth (Gladstone, supra, at para. 165). It addresses day-to-day needs. This was the common intention in 1760. It is fair that it be given this interpretation today.

The distinction between a commercial right and a right to trade for necessaries or sustenance was discussed in Gladstone, supra, where Lamer C.J., speaking for the majority, held that the Heiltsuk of British Columbia have “an aboriginal right to sell herring spawn on kelp to an extent best described as commercial” (para. 28). This finding was based on the evidence that “tons” of the herring spawn on kelp was traded and that such trade was a central and defining feature of Heiltsuk society. McLachlin J., however, took a different view of the evidence, which she concluded supported a finding that the Heiltsuk derived only sustenance from the trade of the herring spawn on kelp. “Sustenance” provided a manageable limitation on what would otherwise be a free-standing commercial right. She wrote at para. 165:

Despite the large quantities of herring spawn on kelp traditionally traded, the evidence does not indicate that the trade of herring spawn on kelp provided for the Heiltsuk anything more than basic sustenance. There is no evidence in this case that the Heiltsuk accumulated wealth which would exceed a sustenance lifestyle from the herring spawn on kelp fishery. [Emphasis added.]

In this case, equally, it is not suggested that Mi'kmaq trade historically generated “wealth which would exceed a sustenance lifestyle”. Nor would anything more have been contemplated by the parties in 1760.

Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi'kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right. In that case, the regulations would accommodate the treaty right. Such regulations would not constitute an infringement that would have to be justified under the Badger standard.  [At paras. 59-61.]

[68]         Mr. Robbins on behalf of the Gitxaala Nation submits that this reasoning departs substantially from the trilogy and “signals a refined approach to characterizing the extent of trading-based rights by way of the purpose (ie., standard of life) served by the trading practice,” replacing what he describes as a “murky scale of trade” basis.  I would not normally have equated purpose with ‘standard of life’, but more importantly, the majority in Marshall (1999) did not indicate, in my respectful view, an intention of departing from the framework of analysis established by the trilogy or of changing its position with respect to the dissenting reasons of Lambert J.A. in Van der Peet.  As we have seen, Marshall (1999) was a treaty case, and the treaty gave the claimants the promise of access to “necessaries” through trade in wildlife.  The Court was addressing a different issue than arose in the cases discussed above, and in that context, the Court seems to have suggested the “social test” had a different significance.

[69]         The Gitxaala Nation argues that in Mitchell v. M.N.R., the Court also confirmed its “dissatisfaction with the scale of trade approach to characterizing trade rights” as set out in the majority judgments in the trilogy.  In Mitchell, the question was whether a member of the Mohawk of Akwesasne had a right to cross the Canada/US border without paying duty on goods brought by them.  Chief Justice McLachlin for the majority affirmed at para. 12 the test established by the trilogy for establishing an Aboriginal right and applied those principles to the issue before the Court.  She characterized the right being asserted as “the right to bring goods across the St. Lawrence River for the purposes of trade.”  (Para. 25.)  After commenting on the interpretation on evidence of Aboriginal rights claims cases at paras. 36-9, she found that the trial judge’s conclusion that such a right existed constituted a “palpable and overriding error” warranting the substitution of a different result.  On an application of Van der Peet, the evidence was simply not sufficient to support the trial court’s conclusion.  The majority rejected the notion that the importance of trade, in and of itself, to Mohawk culture was determinative of the issue, emphasizing that it was necessary to demonstrate on the facts “the integrality of this practice to the Mohawk in the specific geographical region in which it is alleged to have been exercised (i.e., north of the St. Lawrence River), rather than in the abstract.”  (Para. 55.)  On this point, the case differed from the trilogy, where the claimants were required only to demonstrate the integrality of the claimed trading practice in general, rather than in relation to a specific region.  The Chief Justice continued:

In the present case, however, the right to trade is only one aspect, and perhaps a peripheral one, of the broader claim advanced by Chief Mitchell: the right to convey goods across an international boundary for the purposes of trade.  For this reason, Chief Mitchell’s claim cannot simply be equated with the claims in the aboriginal rights trilogy as involving a broad “right to trade”.  This distinction is manifest in the contrasting manners in which the claimed rights are framed in these cases, pursuant to the Van der Peet factors.  [At para. 57; emphasis added.]

[70]         Again, I am unable to agree with Mr. Robbins that Mitchell signals a sea change from the Court’s previous approach and its replacement by one that characterizes the extent of trading-based rights according to the “standard of life” achieved by the practice or activity.  I see the categorization of trade, or any other activity in question, according to whether it is aimed at feeding oneself or one’s people, aimed at obtaining items to be used for ceremonial occasions, aimed at accumulating private or communal wealth, or aimed at participation in a large-scale market, as concerned with purpose, and as consistent with a principled approach to Aboriginal culture.

Honour of the Crown and Fiduciary Duty

[71]         At the end of her reasons, Satanove J. dealt with the appellants’ claims, in the alternative, that Canada had breached its “trust-like or fiduciary obligation to the Lax Kw'alaams by restricting or denying [their] ability to harvest fisheries resources from the Tribal Territories and from Fisheries Resource Sites for commercial purposes”.  She set out in summary form the parties’ respective arguments thus:

The plaintiffs submit that the trust relationship includes the obligations of management, allocation and use, and arises from the reserve process.  The plaintiffs say that the Crown was aware that fishing was their primary means of livelihood at or before the entry of British Columbia into Confederation.  Most reserves set aside for the plaintiffs had been customarily used by them for fishing, and were primarily suited for fishing and little else.  The Crown’s primary purpose in setting aside the reserves was to facilitate and encourage the plaintiffs’ reliance on commercial fishing.

The plaintiffs submit that other aspects of the fiduciary duty arise from the reasonable expectation that the Crown would act in the plaintiffs’ best interest, but that it has acted to their detriment by building a community that relied on commercial fishing, and then restricting their right to pursue that enterprise.

The defendant submits that this fiduciary duty alleged by the plaintiffs is not one that is known to law because:

a.         it does not pass the test of establishing a claimed, fixed, specific, cognizable aboriginal interest that can ground the fiduciary duty claim;

b.         it would conflict with the Crown’s public law administration of the Fisheries; and

c.         on the facts, there was no reliance on the Crown, and the Crown gave no undertaking which would give rise to a private law duty  [At paras. 505-507.]

[72]         The trial judge considered first the “Reserve process”, finding a “consistent theme” in the historical documents that no treaty had ever been negotiated by the Coast Tsimshian.  Indeed, the Lax Kw'alaams had continued to protest the unilateral allocation of their reserve territories until 1927 when s. 141 of the Indian Act, R.S.C. 1927, c. 98 made it illegal for them to do so.  The ban was not lifted until 1952.  At the same time, both the provincial and federal governments had recognized that the Coast Indians “obtain all their necessities or desires ... from the sea and its tributaries” and had attempted to ensure that all of Lax Kw’alaams’ fishing stations were included in the reserve allocated to them.  The appellants contended that the Crown was in effect preserving for the Tsimshian a right to sell fish on a commercial basis, which in the early twentieth century was reflected in the Coast Tsimshians’ involvement in the coastal canneries.  (Para. 513.)

[73]         The trial judge found the appellants’ version of the facts, however, to be “notably one-sided”.  In her words:

... 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 special commercial rights over and above other fishermen.

Continuing correspondence on the issue between the Department of Marine and Fisheries and the Department of Indian Affairs culminated in a responding memorandum of June 7, 1898 from Secretary MacLean of Indian Affairs to E.S. Prince of the Department of Marine and Fisheries.  He acknowledges the position of the Department of Marine and Fisheries that because the common law and statutes entitle every subject to use such fishing privileges, Indian Affairs could not undertake to debar the public fishermen from exercising their legal rights; that the Indian Reserve Commission has no power to grant fishing rights; and that any allotment of fisheries was subject to ratification by the Department of Marine and Fisheries.  The plaintiffs’ expert historian, Richard Inglis, acknowledged that from 1881 onwards, the Department of Marine and Fisheries position that Indian Reserves could not, or should not include exclusive rights to fish, remained consistent throughout.

Furthermore, there is evidence that the Lax Kw’alaams were advised and well aware of this policy when Fisheries Inspector Anderson provided assurances to them that their fishing interests would be treated in common with those of white fishermen by the Crown:

The good effect of this visit, under the prudent assurances given to the Indians that their interests, in common with those of white fishermen, will be carefully watched, has been to me very apparent.  (Report of Fisheries Inspector Anderson to Superintendent of Indian Affairs Powell, 7 August 1879, page 134  [At paras. 515-517]

From a “factual perspective”, she concluded, the Crown had given no promise of commercial fishing rights, exclusive or at all, to the Coast Tsimshian and it was not reasonable for them to rely on the allotment of their reserves as granting them such rights.  (Para. 518.)

[74]         With respect to the law relating to fiduciary duty, Satanove J. noted that such a duty does not exist “at large”, but in relation to specific Aboriginal interests and that it is normally called into existence “to facilitate supervision of a high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples”.  Having found that the Coast Tsimshian had not established an Aboriginal right to harvest and sell fish resources commercially, she saw no “cognizable” interest to which a fiduciary duty like that described in Wewaykum Indian Band v. Canada 2002 SCC 79, [2002] 4 S.C.R. 245 could attach.  Further, the historical evidence was clear that no special right to fish commercially “on an exclusive basis in priority to other fishers” was ever granted to the appellants as part of the reserve process or otherwise.  Accordingly, there was no basis on which the Lax Kw'alaams could establish the fiduciary duty asserted in their pleadings.

[75]         The trial judge described the gist of the appellants’ argument under the heading “Honour of the Crown” as based on the proposition that since the Crown had secured fishing stations for the Lax Kw'alaams and had established fishing as the means by which they would sustain themselves going forward, the Crown should be taken to have promised “that it would not prevent the Lax Kw'alaams in that pursuit.”  (Para. 528.)  On the evidence, however, the trial judge found that the appellants had not established any 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.”  Canada had made it clear at all times that Coast Tsimshian fishing interests would be treated in the same manner as those of other fishermen.  In these circumstances, Satanove J. concluded that the Lax Kw'alaams had not established the dishonourable conduct of which they had accused the Crown.

On Appeal

[76]         On appeal, counsel for the Lax Kw'alaams submit that the trial judge misconstrued their arguments under this heading.  They rely on what they characterize as a promise by the Crown that they would, in Mr. Kirchener’s words, “be kept in the fishing business alongside other fishers” – i.e., a non-exclusive right to fish commercially.  In return for this promise, counsel says, the Lax Kw'alaams gave up claims they would have had to large tracts of territory and accepted small reserves that were useful only as fishing stations.  Thus the Lax Kw'alaams sought at para. 95 of their Amended Statement of Claim, as an alternative to the declaration that they have an existing Aboriginal right to fish on a commercial scale, a declaration that Canada has a fiduciary duty or an obligation arising from the honour of the Crown “to ensure that the Lax Kw'alaams have continued non-exclusive opportunities in the commercial fishery to sustain their community.”

[77]         Given the findings of fact made by Satanove J., however, I do not see how either of these claims can succeed.  Once a claim to an existing Aboriginal right protected by s. 35(1) of the Constitution Act has failed, it is not open to the Aboriginal group to assert a fiduciary duty on the part of the Crown to found the same right, nor could it be inconsistent with the honour of the Crown not to do so.  Whether exclusive or in common with others, the Lax Kw'alaams’ assertion of a constitutionally-protected right to fish commercially failed.  There is thus no cognizable right on the part of the Lax Kw'alaams nor anything approaching a “private law duty” owed to them by the Crown which could give rise in this case to rights that are different from the rights of other Canadians.  Nor are we concerned in this case with the assumption of a “high degree of discretionary control” assumed by the Crown over the lives of the Lax Kw'alaams, as referred to in Wewaykum, supra, para. 79.

[78]         In my respectful view, the grounds of appeal with respect to fiduciary duty of the Crown or the honour of the Crown must also be dismissed.

Disposition

[79]         I would dismiss the appeal, with thanks to counsel for their helpful arguments.  If counsel wish to address costs, they may do so in writing.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Mr. Justice Chiasson”

I Agree:

“The Honourable Madam Justice Bennett”

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20080416
Docket: L023106
Registry: Vancouver

Between:

The Lax Kw’alaams Indian Band, represented by
Chief Councillor Garry Reece on his own behalf and
on behalf of the members of the Lax Kw’alaams Indian Band,
and others

Plaintiffs

And

The Attorney General of Canada and

Her Majesty the Queen in Right of the
Province of British Columbia

Defendants

Before: The Honourable Madam Justice Satanove

Reasons for Judgment

TABLE OF CONTENTS

I.  INTRODUCTION

A.  OUTLINE OF CLAIM

[1]                The plaintiff Lax Kw’alaams is an Indian Band whose name means “place of small wild roses”.  It is comprised of approximately three thousand members.  Most members reside on the Lax Kw’alaams Indian Reserve located approximately 30 km North of Prince Rupert.

[2]                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 soul, occupied territories and fishing sites in or near the coastal area of Northwest British Columbia, along and between the Lower Skeena and Nass Rivers, and on the inlets and islands between their estuaries, and extending to the North end of Grenville Channel (the “Claimed Territories”).

[3]                They also claim to have utilized the fruits of the seas and rivers in their Claimed Territories for food, social, ceremonial and commercial purposes long before the white man came, and would have continued to do so to the present day but for the unjustifiable interference of the Government of Canada as represented by the defendant.

[4]                The plaintiffs claim that their right to fish on a commercial scale is an integral part of their distinctive culture, and ask this court to declare it as such.  They say that the Fisheries Act, R.S.C. 1985, c. F-14 and the Fisheries Act, R.S.B.C. 1996, c. 149 and ancillary legislation infringes on this aboriginal right and breaches the protection granted to aboriginal rights under s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11, reprinted R.S.C. 1985, App. II, No. 44.  They also say that the defendant has breached its unique duty to the plaintiffs based on fiduciary principles and the honour of the Crown.

[5]                The defendant Canada vehemently denies that the Lax Kw’alaams have any aboriginal right to fish commercially.  It maintains 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.  In the alternative, it denies any infringements of the plaintiffs’ aboriginal rights, or says that such infringements are justified for valid and compelling legislative objectives and consistent with the fiduciary duty of the defendant.

[6]                Thus, an aboriginal rights suit is born.

[7]                Counsel on both sides have meticulously and conscientiously advanced their clients’ positions throughout this year long trial.  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.  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.  As with any court proceeding, a decision in a civil suit cannot be decided on sympathy or emotional feelings of any sort.

[8]                At the end of the day, the parties have chosen to bring their claim to a court of law, not to a political forum, and they are entitled to receive an impartial adjudication that resolves their dispute by the application of the laws of Canada to the facts as I find them from the evidence before me.

[9]                Having said that, I am cognizant of the admonition of Madam Justice McLachlin in Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911 that the rules of evidence must be applied flexibly in these cases, in a manner commensurate with the inherent difficulties posed by such claims, and the promise of reconciliation embodied in Section 35(1) of the Constitution Act, 1982.

B.  GENERAL LEGAL PRINCIPLES

[10]            Fortunately for trial judges, the Supreme Court of Canada has set down helpful guidelines to provide a framework within which to decide the complex and sometimes esoteric issues that arise in aboriginal cases.  These guidelines have evolved over the last decades and no doubt will continue to be refined as different aboriginal cases make their way through the legal system.  At present, the significant guiding principles can be summarized as follows:

1.         In 1982, Section 35(1) of the Constitution Act was passed to recognize and affirm the existing aboriginal and treaty rights of the aboriginal peoples of Canada.

2.         The doctrine of aboriginal rights exists, and is recognized and affirmed, because when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land and participating in distinctive cultures as they had done for centuries.  Therefore, a declaration of substantive rights must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown (R. v. Van der Peet, [1996] 2 S.C.R. 507, 23 B.C.L.R. (3d) 1).

3.         “Existing”, as the term is used in Section 35(1) of the Constitution Act, means rights that were in existence when the Act came into effect.  It also means unextinguished.  It suggests that those rights are affirmed in a contemporary form rather than in their primeval simplicity and vigour (R. v. Sparrow, [1990] 1 S.C.R. 1075, 46 B.C.L.R. (2d) 1).  The evolution of practices, customs and traditions into modern forms will not prevent their protection as aboriginal rights, provided that continuity with pre-contact practices, customs and traditions is demonstrated (R. v. Van der Peet).  Although the nature of the practice must be considered in the context of a pre-contact distinctive culture, the nature of the right must be determined in light of present day circumstances (R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686).

4.         The time relevant for identification of aboriginal rights is the period prior to the arrival of the Europeans (R. v. Sparrow; R. v. Van der Peet; R. v. Gladstone, [1996] 2 S.C.R. 723, 23 B.C.L.R. (3d) 155; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 66 B.C.L.R. (3d) 285).  If the pre-contact activity was an integral part of the aboriginal community’s culture prior to contact with the Europeans, the fact that it continued after the arrival of the Europeans and adapted in response to their arrival is not relevant.  On the other hand, where the practice, custom or tradition arose solely as a response of European influences then it will not meet the standard for recognition of an aboriginal right (R. v. Van der Peet).

5.         There are three basic steps to assessing a claim to an aboriginal right:

1.         Identify the nature of the right being claimed.  In this step, the court should consider:

(a)        the nature of the action which the claimant says was done pursuant to an aboriginal right;

(b)        the nature of the governmental regulation, statute or action being impugned; and

(c)        the practice, custom or tradition being relied upon to establish the right.

The right claimed must be characterized in context and not distorted to fit the desired result.  It must be neither artificially broadened nor narrowed.  An overly narrow characterization risks the dismissal of valid claims and an overly broad characterization risks distorting the right by neglecting the specific culture and history of the claimants society (R. v. Pamajewon, [1996] 2 S.C.R. 821, 27 O.R. (3d) 95).

2.         Establish the aboriginal right protected under Section 35(1) by proving:

(a)        the existence of the ancestral practice, custom or tradition (i.e. the activity advanced as supporting the claimed right);

(b)        that the activity was integral to the pre-contact society (i.e. that it was marked as distinctive); and

(c)        reasonable continuity between the pre-contact practice and the contemporary claim.

(Mitchell v. M.N.R.; R. v. Van der Peet)

3.         Establish the effect of the legislation on the proven, existing aboriginal right:

(a)        if the legislation imposes unreasonable limits, or undue hardship, or denies the holders of the right their preferred means of exercising that right, then the legislation represents a prima facie infringement under Section 35(1).  The onus of proving prima facie infringement is on the holder of the right.

(b)        if a prima facie interference is found, the onus shifts to the government to establish that the legislation is justified.  Factors to consider on justification include:

i)          the legislative objective.  Is it compelling and substantial, not just reasonable?  (R. v. Sparrow, R. v. Côté, [1996] 3 S.C.R. 139, 138 D.L.R. (4th) 385).

ii)         the extent of the infringement.  Does the infringement unduly restrict the aboriginal right, or has there been as little infringement as possible to effect the desired result?  (R. v. Sparrow, R. v. Côté).

iii)         the honour of the Crown.  Is the special trust relationship and responsibility of the government vis a vis the aboriginals preserved?  (R. v. Sparrow, R. v. Côté).

iv)        consultation.  Has there been a reasonable effort to inform and consult with respect to the implementation of legislative measures?  (R. v. Nikal, [1996] 1 SCR 1013, 19 B.C.L.R. (3d) 201).

v)         expropriation.  Is there compensation available?  (R. v. Sparrow).

6.         In order to be an aboriginal right protected by Section 35(1) of the Constitution Act, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

7.         “Integral to the distinctive culture” means:

(a)        a central and significant part of a society’s distinctive culture, one of the things that made this society truly what it was (R. v. Van der Peet);

(b)        “distinctive” does not mean “distinct”.  The use of the word distinctive as a qualifier is meant to incorporate an element of aboriginal specificity (R. v. Sappier);

(c)        “culture” means the pre-contact way of life of a particular aboriginal community including their means of survival, socialization methods, legal systems and potentially their trading habits (R. v. Sappier).

In other words, the court must identify a practice that helps to define the distinctive way of life of this particular aboriginal group as an aboriginal community.

8.         Aboriginal rights are not generally universal.  Their scope and content must be defined on a case by case basis.  The words “distinctive culture” refer to the aboriginal specificities sought to be captured.  A court must focus on:

(a)        the specific practices, customs and trades of the particular aboriginal group claiming the right (R. v. Van der Peet); and

(b)        the specific sites of these activities and recognize that a right to perform a site specific activity does not become an abstract right exercisable anywhere; it continues to be a right to exercise an activity on the tract of land in question (R. v. Adams, [1996] 3 S.C.R. 101, 138 D.L.R. (4th) 657; R. v. Côté; Mitchell v. M.N.R. and R. v. Powley 2003 SCC 43, [2003] 2 S.C.R. 207).

9.         In determining whether a claimant has produced evidence sufficient to demonstrate that the activity is integral to a distinctive aboriginal culture, a court should:

(a)        approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times when there were no written records of the activities engaged in (R. v. Van der Peet);

(b)        note that evidence of an activity that was part of a distinctive culture at contact will generally be sufficient to demonstrate that prior to contact the activity was also significant to that particular culture (R. v. Côté);

(c)        admit evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions (Mitchell v. M.N.R.);

(d)        accommodate, where appropriate, the admission of oral histories, but not imbue them with more weight than they can reasonably support (Delgamuukw v. British Columbia);

(e)        be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available; and

(f)         be flexible when engaging in the R. v. Van der Peet analysis because the object is to provide cultural security and continuity for the particular aboriginal society.  Flexibility is also important with regard to the relevant time frame being the period prior to contact with Europeans.

10.       The court must take into account the perspective of the aboriginal claimants; however, that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure (R. v. Van der Peet).

11.       The Crown has a fiduciary duty to aboriginals with the result that in dealings between the Government and aboriginals the honour of the Crown is at stake.  Section 35(1) must be given a generous and liberal interpretation (R. v. Van der Peet).

[11]            The above guidelines are relatively general and apply to most aboriginal cases.  As I deal with the specific aspects and issues of the case before me, I will have resource to further, more detailed principles of law.  In the meantime before characterizing the plaintiffs’ aboriginal right, or analyzing the evidence to determine if they have established that right, and whether it has been prima facie unjustifiably infringed by the defendant, I wish to review in more detail the kind of evidence with which I was provided and analyze its strengths and weaknesses.

II.  TYPES OF EVIDENCE

[12]            The types of evidence adduced in this case runs the ambit from expert to lay witnesses, historical to modern documents, and primary to secondary to tertiary sources.  The disciplines of archaeology, anthropology, ethnography, sociology, economics and biology all make their appearance, some more extensively than others.

[13]            I have chosen to describe in the present tense all written works by expert witnesses, or the written sources on which they rely, because it is my view that these scholarly works, like case law and legislation, may have been written in the past but still speak to us currently.  In order to differentiate between an expert witness’ testimony and his or her report, I have chosen to describe the testimony in the past tense as something that took place during the trial and is now completed.

A.  PRIMARY, SECONDARY AND TERTIARY SOURCES

[14]            There is no doubt that the best evidence of historical facts is the most immediate evidence.  Artefacts that existed, or the observations of a person who was present, at the relevant time and place provide direct evidence of what happened.  Depending on how much time has passed since the historical event, such evidence can be oral, written or demonstrative and is considered primary evidence.  Secondary evidence usually consists of oral or written hearsay, composed by a person who collects or comments on the original information provided by the primary source.  Tertiary sources consist of works where the author uses primary sources to provide factual data about the past that may be incomplete or selective, together with secondary sources to provide interpretations of the factual data, such as the theses and other scholarly works with which I was provided.

[15]            Examples of primary evidence in the context of this case are artefacts and impressions from archaeological sites, ships’ logs, journals and charts of fur traders, and later accounts of missionaries.  There is no actual primary oral evidence available to me because no eye witnesses to the events of the 18th and 19th centuries are still alive; however, the oral traditions of the Coast Tsimshian people that have been collected by various ethnographers from informants who lived in the 19th and early 20th centuries are a valuable source of information.  The secondary literature that contains collections and discussions of these oral traditions also provide valuable insight, as do some of the theses and scholarly works that would be considered tertiary sources.

[16]            Each of these forms of evidence has its strengths and weaknesses, as do the academic disciplines seeking to interpret them.  For the purposes of this lawsuit, I have taken into account these strengths and weaknesses in determining the weight to be given to the sources, and consequently the weight of the expert opinions that have relied upon them.

B.  ARCHAEOLOGY

[17]            In some ways archaeology may seem to be the most concrete form of evidence available to speak of prehistoric times.  Extracting tangible objects from archaeological survey sites can produce information about many aspects of the society that occupied the lands from which the objects are uncovered.  For example, the plaintiffs submit that the discovery of exotic materials in their Claimed Territories leads to an inference of trade.  Archaeology alone, however, will not tell us how or when exotic material arrived at a site, only that it was transported from one place to another.  To interpret their findings, archaeologists must rely on the ethnographic record and other data.

[18]            Furthermore, archaeology is limited by the durability of the object in question.  Organic, faunal material is not usually preserved in a manner that allows it to survive through long passages of time, although shell casings and fish bone remnants have been recovered from areas of interest in this case.

[19]            Therefore, archaeological evidence is useful, but too limited to support conclusions on its own.

C.  HISTORICAL DOCUMENTS

[20]            By definition, no historical documents exist prior to European contact with the oral culture of aboriginal societies.  The maritime fur traders’ records and those of the Hudson Bay Company (“HBC”) are probably the most contemporaneous with European contact; these records contain observations of activity between indigenous peoples at the time of contact.  Evidence of such activity may reasonably support an inference that similar activity took place pre-contact.

[21]            The plaintiffs criticize the maritime and HBC trade journals because they argue that the writers did not pay sufficient attention to the indigenous economy.  The plaintiffs’ expert anthropologist, Dr. Margaret Anderson, testified that the trading vessels were only in the territory of the plaintiffs in the summer and the traders only recorded their own transactions with the aboriginals.  This is Dr. Anderson’s explanation for why there is no mention in the journals of aboriginal groups trading amongst themselves for the years 1787 to 1831.  Of course, another possible explanation is that no such trading took place within the observation of the fur traders.

[22]            The defendant’s expert anthropologist, Dr. Joan Lovisek, agreed that the maritime reports did not distinguish between aboriginal groups, but she maintained that they focused on the material aspects of the aboriginal culture which included fishing and trading.  She was of the opinion that if inter-aboriginal trading had been taking place, the maritime fur trade reports would have noted it.

[23]            I accept that the maritime and HBC records are limited by the geographical areas within which the traders explored, and by the extent of the aboriginal activities to which they were privy; however, I find the reports clearly set out where the reporter is directly observing something and where he is only speculating.  Those observations carry weight and should be accepted as direct evidence of what was being recorded.

[24]            The plaintiffs submit that the lack of observation of certain activities cannot be taken as conclusive proof that they did not occur, only that they were not observed.  I agree, but I must also consider Dr. Lovisek’s comment that the maritime fur traders, and especially the HBC traders, were in the area for a commercial purpose.  They recorded in detail each business transaction they had with the “natives” and their focus was on the goods and materials for which the aboriginals were eager to trade furs.  As will be seen, the fur traders in an effort to cut out the middle men, began to trade indigenous as well as European goods to the aboriginals.  I cannot accept that they would not be impressed by the existence of indigenous trade and record it, although they may not have been afforded much opportunity to observe it.

D.  ETHNOGRAPHY

[25]            Ethnography is an attempt to describe a culture on the basis of data collected from the memories of informants about an earlier time.  Most ethnographers, and particularly the ones discussed below, use “salvage ethnography”, which relies on “memory culture”, that is, the memories of elders to provide information, post-contact, about the past.  The information derives from memory, and thus the actual activity or event is rarely observed by either the informant or the ethnographer.

[26]            Ethnographers speak to an “ethnographic present” as representing an aboriginal time in the past.  Unfortunately, such data contains little time depth, and can be misleading.

[27]            Archaeologists David Archer, Paul Prince and Bruce Trigger, all caution generally against using the “ethnographic present” to reconstruct past cultures.

[28]            The reason for the concern is that most ethnographic data was collected in the twentieth century without sufficient distinction or allowance made for European influences on the cultures.  Ethnographers did not consult historical documents to measure time depth, nor did they compare their data against archaeological evidence that would have highlighted discrepancies.

Ethnographers working on the Northwest Coast have not generally sufficiently appreciated the fact that, for the most part, their informants were not recounting facts about an unchanging “traditional” past.  Rather they were mixing information about more than one time period from an era of very rapid cultural change.  Insufficient historical controls make such ethnographic data a shaky base for generalization.  (Leland Donald, “The Slave Trade on the North West Coast of North America” (1984) 6 Research in Economic Anthropology 121 at 126).

As will be seen, this temporal conflation is largely responsible for some divergent opinions amongst the experts, both in this case and within the scholarly community.

E.  ORAL HISTORIES

[29]            Much of the ethnographic data for the study of the Coast Tsimshian culture is in the form of Tsimshian oral histories or transcriptions of interviews with Tsimshian elders recorded by a select group of ethnographers.  Although these oral histories are referred to by the plaintiffs’ experts as “adaawx”, true adaawx are more than just oral histories.

[30]            Dr. Anderson explains in her report that an adaawx is an epic recounting of a family’s quest for its own territories, acquisition of land, and defence of it.  These histories are safeguarded by each of the matrilineal House Groups (see section V. A. 1. Houses and House Groups) and are recounted in abbreviated form at feasts.  A much longer and more complex version is taught to members of the House Group who are in line for important roles.  The longer versions include details of territories and resources and the knowledge that is needed to care for them, and information on relationships between House Groups, privileges, crests and names belonging to the family.

[31]            The important feature of a true adaawx is that the public recounting of it is a statement of rights that is affirmed by witnesses.  Dr. Anderson states:

When told at a feast, the guests acknowledge the right of the hosts to their adaawx and their claims made at the feast, rather than the literary merit or literal factuality of all events recounted in an adaawx.

[32]            The plaintiffs’ expert archaeologist, Dr. George MacDonald, testified that adaawx actually means “true witnessed histories” in Tsimshian, with the emphasis on the word “witnessed”.  He said they were transferred from one generation to the other in a ceremonial, ritual occasion where the attending witnesses were essentially paid for their duty through the distribution of potlatch goods.  He likened it to our form of court.

[33]            Dr. Anderson testified that it is acceptable to vary the style of an adaawx, and embellish it with mythical material.  There are a large number of versions of the same histories with minor differences; however, she insisted that the story of how the House Group acquired its rights and territories and passed them down the generations remains firm at the core.  She stated that a naive reading of English translations of a few adaawx may be virtually useless, whereas patient analysis of the entire body of adaawx allows a reader to recognize intrusive mythic episodes.

[34]            Dr. Anderson also pointed out that is important to realize that the adaawx are not focused on economic activities or trade, but such information is frequently included in narratives incidental to accounts of the acquisition of a privilege, or territory, or a migration to a new area.

[35]            The difficulty is that true adaawx are not widely known in communities now and there are few occasions on which they are publicly recounted.  Dr. Anderson advised that very few Tsimshian are able to recount their adaawx.  This sad loss has been exacerbated by the loss of language, the influence of missionaries, teachers and government regulations and the suppression of the feast system.  None of the members of the plaintiffs’ Band who testified before me was able to recount any true adaawx.

[36]            Other forms of oral history are the malsk (folktales that drift from tribe to tribe), hero myths (myths of origin of a clan, crest or chief), stories of war, battles or migrations and remembrances of individuals (life histories as opposed to oral traditions).  These other forms of oral history do not have the same safeguards of accuracy because they are not recounted in a formal ceremony with witnesses who contradict or confirm the accuracy of the recitation.

[37]            It is also important to note that the directions of the Supreme Court of Canada to trial judges on how to treat oral histories in the context of aboriginal cases usually pertain to true adaawx, or at least to testimonies of declarations made by a now deceased member of a Band as to land use and traditions.

[38]            In Delgamuukw v. British Columbia, the court finds that the importance of the adaawx was underlined by the fact that they were repeated at important feasts where dissenters had the opportunity to object if they questioned any detail and in this way helped to ensure authenticity.

[39]            In Mitchell v. M.N.R. the court says that oral histories (both adaawx and declarations of deceased persons) are admissible as evidence if they are both useful and reliable.  Such oral histories may meet the test of usefulness by firstly, offering evidence of ancestral activities and their significance that would not be otherwise available, and secondly, by providing the aboriginal perspective on the right claimed.  Oral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspectives.  They should not be rejected simply because they do not convey historical truth, or contain elements that may be classified as mythology, or lack precise detail, or embody material tangential to the judicial process, or are confined to the community whose history is being recounted.

[40]            Once such oral history evidence has adhered to the admissibility threshold, however, it is imperative that the laws of evidence operate to ensure that the aboriginal perspective is given due weight by the courts, but not interpreted or weighed in a manner that fundamentally contravenes the principles of the laws of evidence.  Evidence adduced in support of an aboriginal claim can run the ambit of cogency from the highly compelling to the highly dubious.  Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities.  Placing due weight on the aboriginal perspective, or ensuring that its supporting evidence is on equal footing with more familiar forms of evidence, emphasizes the words “equal” and “due”.  While the evidence presented by aboriginal claimants should not be undervalued simply because that evidence does not conform precisely to the evidentiary standards that would be applied in a private law case, neither should it be tasked to carry more weight than it can reasonably support (R. v. Van der Peet; Mitchell v. M.N.R.; R. v. Sappier).

[41]            Therefore, the rules of evidence must be adapted to accommodate oral histories, but the admissibility and weight of such evidence must be determined on a case-by-case basis.  I agree with the list of factors that the defendant submits may affect the admissibility and weight to be given to oral history evidence:

a)         the date and context in which the data was collected including the instructions under which the fieldworker was operating;

b)         the identity of the informants, their age, tribal affiliation and connection to the Aboriginal culture;

c)         whether a narrative is an adaawx, and, if so, whether or not it was recorded within the context of a feast;

d)         whether the information that is to be relied upon is part of the “core” of the narrative;

e)         the source and nature of the data upon which any conclusions are based from ethnographic summaries prepared by ethnographers; and

f)          a comparison of alternative versions of oral narratives historical or archaeological data.

[42]            The oral history evidence in the case before me was adduced by way of ethnographic collections.  It did not arise from recounting at a feast but rather through an interview by an ethnographer, or individual trained by an ethnographer to gather information on the ethnographic present.  Dr. Anderson admitted that she did not know anyone from the plaintiffs’ band with whom she would be confident in receiving a true adaawx.  She maintained that the continuity of the adaawx has been “ruined” by Canadian laws over the years (referring to the banning of feasts where these were recounted) and thus we have to rely on oral histories preserved by the ethnographers.  Dr. Anderson agreed with anthropologist James McDonald who states that “Oral histories have a way of changing over time, especially when they are important and not subject to the scrutiny of public recitation provided by the context of the feast”.  (James A. McDonald, “An Historic Event in the Political Economy of the Tsimshian:  Information on the Ownership of the Zimacord District” (1983) 57 B.C. Studies 24 at 37).

[43]            Dr. Anderson seemed critical about the interpretation of some ethnographers although she didn’t agree that external verifiability by archaeologists or geographers was necessary.  She was aware of instances where evidence obtained by these latter two disciplines contradicted the oral narratives, and she admitted that it could be useful to try and corroborate the Tsimshian narratives by comparing them to historical or archaeological material.  She agreed that stories are often converted from true adaawx into malsk.  They are also subject to the bias of the informants.  She didn’t accept all of the elements in the oral histories as factual, and conceded instances of conscious stretching, unconscious drift and amalgamation of stories.

[44]            Dr. Anderson agreed with Jonathan Dean’s comment that “…chronologies of past events are difficult to re-construct from a dynamic oral tradition” and Robert Galois’ concept of “temporal compression” that becomes apparent when different versions are compared.  (Jonathan R. Dean, ‘Rich Men’, ‘Big Powers’ and Wastelands – the Tlingit – Tsimshian Border of the Northern Pacific Littoral, 1779 – 1867, PhD Thesis, University of Chicago, 1993 at 146 – 147; Robert Galois, ed., Introduction:  A voyage to the North West side of America:  The Journals of James Colnett, 1786 – 89, (Vancouver: UBC Press, 2004)).

[45]            Other Tsimshian experts besides Dr. Anderson have criticized the oral histories of the Coast Tsimshian.  Wilson Duff, an anthropologist and curator at the B.C. Provincial Museum (now called the Royal B.C. Museum) known for his extensive research of the Tsimshian and Haida, pointed out these failings in the oral histories he reviewed:

a)         Chiefs’ names, places and locales changed over time.

b)         House Groups borrowed each other’s histories.

c)         Imperfections of memory arise after generations.

d)         Traditions were consciously counterfeited.

e)         The adaawx of higher rank and larger potlatches have survived over smaller, less important ones (i.e. the ones that survived belonged to the most prestigious, richest Houses).

[46]            Andrew Martindale, archaeologist, writes that the accuracy of oral histories increases if one finds multiple versions of the same story written from different perspectives, especially if the informant does not have a personal stake in the outcome.  He also said that one is on firmer ground if one sticks to the events of the past rather than the intentions of cultural meanings to be derived from the narratives (Andrew R.C. Martindale, The River of Mist: Cultural Change in the Tsimshian Past (PhD Thesis, University of Toronto, 1999) at page 360).

[47]            Even the plaintiffs submit that although the oral histories are a rich source of information, significant gaps exist because certain aspects were not pursued by the ethnographers.

[48]            Most of the oral histories pertaining to the Coast Tsimshian culture were recorded by Frans Boas, Henry Tate, Marius Barbeau, William Beynon, and Viola Garfield.  The methodology and results of each of these ethnographers has borne scholarly criticism over the years.

1.  Boas

[49]            Frans Boas was born in Victoria in 1886.  In the late 19th century he performed field work in the Nass and Skeena River areas.  He never personally conducted any fieldwork in Fort Simpson and thus Marius Barbeau, another ethnographer, characterizes his work as “secondary evidence”.  Barbeau is of the view that the aboriginal myths and tales were usually common to tribes scattered over vast and not necessarily homogeneous culture areas.  A description of a local custom or belief based upon such data is likely to be inadequate, or in some cases incorrect.

[50]            In cross-examination, Dr. Anderson admitted that one has to read Boas with a critical eye.  His work depends heavily on myths and must be used with caution because it is not a reliable source of the information on the pre-contact behaviour of the Coast Tsimshian.  She writes in her book The Tsimshian: Images of the Past, Views for the Present (Vancouver: UBC Press, 1984) at page 54 that “Boas, obviously, does not concern himself with the every-day life of people who were a part of cash economy, even though the very people he interviews were workers….”  The 19th century must be sorted out and reconstructed not as a stage, or as a series of stages, but as a complex and continuous process of change, in order to understand the interplay between the new economic possibilities and changing social life of the Coast Tsimshian, both in the 19th and the 20th centuries.

2.  Tate

[51]            Henry Tate, a Tsimshian from Fort Simpson, was hired by Boas to conduct interviews from 1903 – 1914.  Tate did not record the information verbatim but wrote it down later.  There is a concern amongst ethnographers that he likely forgets or slightly alters things, or supplies information from his own notions.  He adds interpolations, including details on the cultural perspective.  He eliminates what he thinks is inappropriate to expose to the European culture.  Finally, he has read and may have been influenced by Boas’ published collections of the Kwakiutl and Nishka traditions.

[52]            Barbeau in his article “Review of Boas’ Tsimshian Mythology” (1917) 19 American Anthropologist no. 4, pages 548 – 563, based on Henry Tate’s records, illustrates the weaknesses of ethnography and in particular, the weaknesses of Tate.  Barbeau acknowledges that the material is of high quality both in form and content.  If Tate was not guided by scientific methods, his short comings were more than compensated by his life long familiarity with the environment of his subject; however, Tate was not in the habit of taking down the stories under dictation.  He didn’t like to divulge that he was recording them at all.  Although he appears to have given a literal translation, he is liable to have forgotten or slightly altered many items or even supplied some out of his own stock.  Barbeau notes that his information as to the identity of crests spoken of in myths differs from one or two that Barbeau records with expert informants.  He says at page 562 that “Tate’s views are not altogether acceptable and, as they are supposedly part of a traditional text, they are decidedly misleading”.

3.  Barbeau

[53]            Barbeau focuses mostly on the Coast Tsimshian myths between 1915 and 1957.  He worked with William Beynon from 1916 to 1957.  Not all the narratives that were collected by him were true adaawx and some related to the other Tsimshian Groups.  William Duff criticizes Barbeau for proposing a number of theories and conclusions that were not supportable.  For example, Barbeau suggests that the culture of Northwest Coast tribes was predominantly a result of recent importations from Asia and responses to European contact.  Duff believes that the culture was partly an indigenous aboriginal accomplishment and partly imported from American aboriginal society.

4.  Beynon

[54]            William Beynon was a Coast Tsimshian raised in Victoria by his Nishka grandmother.  He married into a Coast Tsimshian tribe at Lax Kw’alaams and moved to Fort Simpson in 1913.  He worked for Boas, Barbeau, and Garfield.  His Columbia manuscripts were a valuable oral history resource, but unfortunately they were lost for over 40 years and didn’t resurface until the mid 1980’s.  They are literal translations of 256 narratives from 75 informants who came mostly from Kitkatla.  The narratives are personal accounts and reminiscences, not true Adaawx.  Their emphasis is primarily on language, ritual, myth, social organization and historical events, not subsistence, tenure, population, settlement patterns, or trade.  It must be remembered that most of Beynon’s narratives were recorded outside of the feast context, that many informants were not members of lineages that owned the narratives, and that they were answering specific questions put to them by Beynon.

5.  Garfield

[55]            Viola Garfield was a student of Boas who performed fieldwork in Lax Kw’alaams during the summers of 1932, 1933, and 1935.  She did not write about what she observed, but rather what she heard from informants.  She relies on memory culture and the narratives collected by Boas and Barbeau.  All her informants were born after 1850, two generations post-contact.  Dr. Anderson admitted in cross examination that this period between contact and 1850 was a period of transition during which the Coast Tsimshian encountered an enormous number of new things and influences.  McDonald cautions that Garfield’s material on the economy and political life of the people with whom she spoke may be inadequate because she is primarily interested in traditional organization, ceremony and feasts.

[56]            Despite the litany of weaknesses in the recordings of the above ethnographers, it must be recognized that their body of work is a rich source of information and when properly analyzed, may provide valuable insight into the past culture of the Coast Tsimshian.  The key is to recognize the elements that may speak to pre-contact activities, or provide a basis for drawing reasonable inferences.  Common sense should enable the reader to appreciate the mythical or super-natural elements of the stories and extract the more factual information.

F.  LAY WITNESSES

[57]            There are no credibility issues with respect to either the plaintiffs’ or defendant’s lay witnesses.  I particularly appreciated the candour with which the plaintiffs testified, their readiness to acknowledge the priority of conservation measures, and the lack of rancour with which they viewed the defendant’s position.  I also appreciated the professionalism and sincerity of the Department of Fisheries and Oceans officials who gave detailed testimony about Canada’s administration of British Columbia’s fisheries.

[58]            By contrast, each party attacked the credibility and reliability of the other party’s’ expert witnesses, sometimes for the same reasons.  I summarize below some of the relevant background and criticisms of each of these witnesses.

G.  EXPERT WITNESSES

1.  Dr. George F. MacDonald

[59]            Dr. MacDonald has over forty years experience as an archaeologist, most of which was spent as the chief of the archaeology division of the Canadian Museum of Mankind.  He has taught and published extensively.  I qualified him as an anthropologist with expertise in archaeology, ethnography and ethnohistory.  His importance to the case is that he started the North Coast History Project in 1966 which resulted in significant excavations in the area of Prince Rupert Harbour, where the plaintiffs claimed to have lived for thousands of years.

[60]            The defendant criticizes Dr. MacDonald’s report as an excessively broad overview that should only be given weight if supportable on a review of all the available evidence.  It criticizes his reliance on undefined sources, lack of referencing, poor time controls, and unsupported conclusions.

[61]            Some of these criticisms are justified.  For example, Dr. MacDonald relies heavily on the adaawx, but fails to say which ones.  He also fails to refer to the work of archaeologists James Haggarty or David Archer with respect to the Dundas Island Group (see section VI. 4. Dundas Island Group).  His opinion that the Tlingit pushed the Tsimshian out of Prince Rupert Harbour 2000 years ago is a highly relevant aspect of his report yet he fails to mention Haggarty’s opinion that the Tlingit occupied Dundas Island until the mid 1700’s.

2.  Dr. Margaret Anderson

[62]            Dr. Anderson is a professor of native studies at the University of Northern British Columbia.  She has studied the Tsimshian culture for 30 years, speaks the Coast Tsimshian language of Smalgyax, has published many studies and has lived in the Tsimshian community for over 20 years. I qualified her as an anthropologist with expertise in the Tsimshian culture and language.

[63]            The defendant’s biggest complaint about Dr. Anderson’s report is her lack of time depth.  She does not distinguish between pre- or post-contact events, or take into account the impact of the fur trade on Coast Tsimshian society.  She does not define what she means by trade.  She talks about kinship exchanges but does not analyze them.  She neglects historical sources, fails to identify archaeological evidence supposedly relied upon by her, provides no analysis of the Tsimshian narratives, or ethnographic data, and relies upon questionable and non-authoritative sources.

[64]            For example, Dr. Anderson appears to have ignored the maritime fur traders’ logs and HBC journals which contain a lot of information about the Coast Tsimshian.  She admitted on cross-examination that these documents are significant and are a valuable form of primary data when reviewed in context and considered in light of other data.  Her criticism that the documents only incidentally record indigenous trade can also be made of the adaawx upon which she bases her opinion.

[65]            I agree with the defendant that Dr. Anderson’s “Primary Source Compilation” is a confusing, overly repetitive 15 volume collection of extracts sometimes taken out of context and mostly unreferenced.  Although she describes it as the collection of primary sources upon which she based her expert opinions, it is really a form of secondary evidence without any corresponding analysis of reliability.

[66]            I do not agree with the defendant that there is a perception of bias against Dr. Anderson because she was married to a Hartly Bay aboriginal fisherman and became a member of his Band and House Group through adoption.  I am cognisant, however, of the fact that before Dr. Anderson was retained by the plaintiffs, she had already expressed her opinion to anthropologist Dr. Frederica de Laguna that the Tsimshian have the constitutional right to fish commercially and to manage their fisheries.  Cross examination established that after expressing this opinion she went about searching for evidence to support her view, as opposed to forming the opinion as a result of her research.

[67]            An expert witness is chosen because of his or her area of expertise and ability to perform, understand, and interpret the research required to form an opinion.  If the opinion isn’t helpful to the party’s position it doesn’t usually see the light of day.  If it affirms the party’s position, it is tendered in court with the reassurance that the opinion was honestly arrived at and not manufactured to support or oppose a claim.

[68]            The most shocking example of my perception that Dr. Anderson was grasping for material to support her opinion was her treatment of the Chief Kelly Manuscript, an 89 page document that she cited in her expert report over and over again.

[69]            In her report, she describes the source of the Chief Kelly Manuscript as coming from Victor Kelly of the Gispaxlots, as told to her by Bobby Sankey of Prince Rupert.  She testified in her examination in chief, that it was one of the most important documents in her report.  She used it to describe the movement of the tribes, the use of their Claimed Territories and the harvest of their resources.

[70]            She further testified that after writing her report, she ran into “parallels” in language between the Chief Kelly Manuscript and a book by John Arctander called The Apostle of Alaska which was about William Duncan, a missionary of the Tsimshian.  She concluded, then, that the Manuscript had been written down by one James Wallace, who was a handyman and gardener at Duncan’s Mission.  She said the manuscript had the “vitality and exuberance of Tsimshian oral performance”.

[71]            Dr. Anderson was of the definite opinion that Arctander had inserted pieces of the Manuscript in his text, and not the other way around.  She relied on the fact that Arctander, at page 69 of his book, refers to Indians returning to Fort Simpson, whereas a similar passage in the Manuscript refers to Indians returning to Metlakatla.  She said at first, that Arctander changed the place from Metlakatla to Fort Simpson because he didn’t know about the Metlakatla villages.  When other passages of the book were pointed out to her that showed Arctander knew of Metlakatla, she came up with the excuse that he wanted to refer to a better known contemporary community.

[72]            On cross-examination, it was pointed out to her firstly, that James Wallace did not speak Smalgyax, the language of the Coast Tsimshian, and therefore would not have been able to capture the “vitality and exuberance of Tsimshian language” to which she had referred in her evidence in chief.  Secondly, she was referred to Peter Murray’s article, The Devil and Mr. Duncan (Victoria: Sono Nis Press, 1985), that describes Arctander as a “clever and crooked” lawyer who was suspended from practising law for six months for falsifying dates on documents, and finally disbarred.  Arctander provided a draft of his book to William Duncan who was very concerned about the errors that had gone forth to the public and were “a cause of great pain” to him.  Duncan seized 300 copies of The Apostle of Alaska in order to destroy them.

[73]            Dr. Anderson also said in examination in chief that the Arctander material has been considered reliable by Garfield.  However, Garfield did not consider Arctander’s book to be reliable and in fact expressly stated that it “cannot be taken as authoritative … the list of trade goods is fragmentary and of doubtful accuracy … of little value except for dates, names and other specific details … the natives consider it an inaccurate description of their culture” (see Viola Garfield, Tsimshian Clan and Society, Volume 7(3) (Seattle:  University of Washington Publications in Anthropology, 1939)).

[74]            In my opinion, there is no doubt that the Chief Kelly Manuscript was manufactured after publication of Arctander’s book.  Defendant’s counsel put to Dr. Anderson that the 21 passages of Arctander’s book appear in identical or similar wording in the Chief Kelly Manuscript.  Nonetheless, Dr. Anderson refused to agree that her interest and confidence in the Chief Kelly Manuscript were undermined.

[75]            The two juxtaposed excerpts below are a sample of the apparent plagiarism that runs throughout the Chief Kelly Manuscript, the fact of which Dr. Anderson refused to admit.

[76]            In my opinion, all that can be said about the Chief Kelly manuscript is that William Duff had it in his files with a note that he had obtained it from William Kelly in 1960.  There is no way to determine the author, purpose, age, authenticity or reliability of the document.  In light of the plagiarism of sections of Arctander’s text, which itself is of suspect authority, and the lack of reliable information as to the genesis of the Manuscript, it carries no weight and only serves to compromise Dr. Anderson’s report and opinions.

3.  Dr. Steven Langdon

[77]            Dr. Steven Langdon is an economic anthropologist with three degrees from Stanford University.  He is now a professor at the University of Alaska and focuses on the study of economic theory, in particular fishing economies with groups on the Northwest Coast.  I qualified him as an anthropologist with expertise in cultural and economical anthropology, ethno-history, archaeology and maritime societies on the Northwest Coast.

[78]            The defendant submits that Dr. Langdon has a tendency to reach conclusions based on insufficient and inappropriate evidence, and to speculate with regard to the pre-contact Coast Tsimshian economy.  In addition, his expertise in myth interpretation is questionable.  At trial he stated that he utilized myths in his interpretation of aspects of the cultural behaviours he found amongst the Tlingit, but he admitted that he had no special training in mythic interpretation other than what is common as part of a cultural anthropologist’s background.

[79]            I am concerned that Dr. Langdon relied too much on the two texts, People of ‘Ksan, Gathering: What the Great Nature Provided - Food traditions of the Gitksan (Vancouver:  Douglas & McIntyre, 1980), and Richard Heywood Daly’s, Our Box was Full: an Ethnography for the Delgamuukw Plaintiffs (Vancouver, UBC Press, 2005).  The latter text was written for the Gitksan and the Wet’suwet’en litigation, and the former was written by Gitksan people from the village of ‘Ksan.  Both make interesting reading but cannot be considered authoritative.

[80]            I also have a concern that Dr. Langdon was prepared to reach broad based and far reaching conclusions on the strength of three or four oral narratives which I analyze in section IX. C.  I found his background information on economic anthropology and how the different economic theories might apply to the Coast Tsimshian to be helpful.

4.  Dr. Joan Lovisek

[81]            Dr. Lovisek has a P.H.D. in anthropology and ethnohistory from McMaster University.  She has more than 20 years experience in First Nation issues and has received academic and fieldwork training in archaeology.  Her report contains a thorough review of the maritime fur trader logs and HBC company records.  Her methodology of ethnohistory is one that is used primarily by anthropologists, historians, historical geographers, and archaeologists because of the dating problems associated with early anthropology and ethnography.  Ethnohistory is the study of the past of a non-literate people, and therefore uses all three types of archaeological, historical and ethnographical data to arrive at what ethnohistorians claim to be a more accurate picture of the past than what any of these three disciplines can provide on its own.

[82]            The plaintiffs criticize Dr. Lovisek’s methodology for being unduly rigid.  They complain that this method was not used in British Columbia and was not acceptable to the Supreme Court of Canada in R. v. Van der Peet.  They complain that she relies on sources selectively and fails to use the best evidence available to her.  They submit she was partisan in her views.

[83]            I found Dr. Lovisek to be a meticulous and very careful witness, perhaps overly so.  There were occasions where she seemed reluctant to concede a point, not because she denied it, but because she refused to draw any inference where there was more than one available.  On balance, however, I found her evidence and opinions to be more reliable in most areas than those of the plaintiffs’ experts.

5.  Conclusion on expert witnesses

[84]            The attack by each party on the other party’s expert witness was not always justified.  I agree that sometimes cross-examination disclosed errors in observations and assumptions.  I agree that sometimes the fine line between inference and speculation was crossed over inappropriately; however, my overall view is that the experts were immensely helpful in collecting and collating data that only persons with their years of experience and depth of knowledge could do.  Their opinions, while not necessarily accepted by me, were helpful to highlight certain perspectives and provide hypotheses against which to test the evidence.  I have not ignored any of the expert reports of Drs. MacDonald, Anderson, Langdon and Lovisek but have availed myself of their conclusions only where I am satisfied they are truly supported by the specific evidence in this case, and not merely broad-based assertions pronounced in favour of the position of one or other of the litigants.

[85]            The one exception is Dr. Anderson’s reliance on the Chief Kelly Manuscript.  In my view, her quickness to accept it as an authentic recording of Tsimshian oral history without proper research and analysis to determine its source and authenticity seriously undermined her credibility with respect to her interpretation of the oral histories upon which she relied.

III.  NATURE OF THE CLAIM

[86]            In R. v. Van der Peet, the Supreme Court of Canada states that the first step in determining the existence of an aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982 is to identify the nature of the right being claimed.  The focus in this step is to ascertain the true nature of the claim, not to assess the merits of the evidence offered in its support (Mitchell v. M.N.R.).  The right must be delineated in terms of the particular practice, custom or tradition under which it is claimed.

[87]            In this case, the plaintiffs submit in writing that the proper characterization of their claim is the right to harvest all species of fish, shellfish and aquatic plants (the “Fish Resources and Products”) in their Claimed Territories and fishing sites for the purpose of selling those Fish Resources and Products on a commercial scale to sustain the Lax Kw’alaams community, and accumulate and generate wealth.

[88]            In oral submissions the plaintiffs attempted to restate the nature of the claim as seeking a right to harvest all species of Fish Resources in the Claimed Territories for all purposes, including selling Fish Resources and Products on a commercial scale.

[89]            The defendant submits that the plaintiffs’ claim, even as expressed in their written submissions, is tantamount to seeking a right to harvest as much of any and all species of fish as they wish, subject to conservation, and in priority to other users.

[90]            It is important to note that this case is a civil proceeding, unlike all the other aboriginal fishing rights cases that have been considered by the Supreme Court of Canada, which were prosecutions of regulatory offenses.  Here the aboriginal right cannot be characterized by the actus reus of the accused, or the breach of any legislation.  As with any civil proceeding, the nature of the plaintiffs’ claim must be governed by the pleadings.

A.  THE AMENDED STATEMENT OF CLAIM

[91]            The plaintiffs plead that they are the descendants of nine tribes that were organized, self-governing aboriginal societies who communally used or occupied the claim area at the time of contact.  They had a common language, customs, practices, traditions, laws, economic structures, spiritual beliefs and culture.

[92]            The plaintiffs plead that any rights held by these nine tribes have continued until today.

[93]            They plead that they owned, used and occupied the area along and between the Skeena and Nass rivers, inlets and islands between their estuaries and extending south to the upper part of Grenville Channel, including the off-shore and in-shore water bodies, foreshore, rivers, lakes and streams (their Claimed Territories).  They say that they used fishing sites in these areas to gather Fish Resources.

[94]            They further claim that the harvesting, managing, processing, consumption, creation of surplus, and trading of Fish Resources and Products, and the accumulation of wealth therefrom, was of central significance and integral to their distinctive culture.  More specifically, they claim that through trade they acquired:

a.         goods to sustain their community and advance economic development;

b.         fish and fish products not otherwise available;

c.         fish that could be attained more economically through trade than through harvesting;

d.         utilitarian goods necessary to generate and develop their economy and enhance their culture;

e.         wealth that enhanced their standard of living, established rank and prestige of individuals;

f.          social, strategic, and economic relations within the tribe and with other tribes and nations.

[95]            The plaintiffs plead that their practice of harvesting, processing, and trading of Fish Resources and Products continued to be of central significance after contact (post 1793) through the post-confederation period to the modern day, even though there were adaptations in gear, fishing techniques, type of product, trading patterns and new markets.

[96]            They plead that the Crown encouraged them to earn their livelihood through participation in the modern commercial fishery and they continued to endeavour to do so.  As a separate claim, the plaintiffs’ allege a fiduciary duty between the Band and Canada.  This fiduciary duty is based on:

a.         the trust relationship between the Crown and the plaintiffs;

b.         the absolute power or discretion of the Department of Fisheries to manage fish;

c.         the plaintiffs’ loss of control over management;

d.         the plaintiffs’ reliance on harvesting for commercial purposes;

e.         the setting aside of reserves for fishing; and

f.          the encouragement by the Crown to rely on commercial fishing to earn their livelihood and sustain their economy.

[97]            The relief sought by the plaintiffs includes Declarations that:

a.         the plaintiffs have an existing aboriginal right within the meaning of s. 35 (1) of the Constitution Act of 1992 to harvest and sell on a commercial scale all species of Fisheries Resources that they harvest from their Claimed Territories;

b.         the Fisheries Act, R.S.C. 1985, c. F-14 and the Fisheries Act, R.S.B.C. 1996, c. 149 and their respective Regulations infringe upon this aboriginal right; and

c.         the Crown has breached their trust-like or fiduciary obligations to the plaintiffs by restricting or denying their ability to harvest Fish Resources from their Claimed Territories for commercial purposes.

B.  RIGHT TO HARVEST AND SELL ALL SPECIES

[98]            The defendant submits that the plaintiffs should not be permitted to characterize their claim as encompassing all species of Fish Resources in their Claimed Territories.  The defendant submits that because this is a civil, not criminal case, the aboriginal right being identified must be more precisely circumscribed.

[99]            The defendant argues that:

a.         it is the pre-contact practices of the Coast Tsimshian that form the substance of the aboriginal right to exchange fish.  The evidence disclosed that pre-contact, the Coast Tsimshian commercially fished eulachon only.  Trading in all other species of fish was low volume, personal, opportunistic, irregular, for food, social and ceremonial purposes and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society.

b.         defining modern Aboriginal rights to fish commercially as limited to those fish harvested and exchanged at contact is consistent with the principle that Aboriginal rights must be established on a specific rather than general basis.  Otherwise, a pre-contact practice of harvesting and exchanging one or two species of fish could then become a modern right for commercial exchange of anything: elk skins, horses, cattle, and cars.

c.         in R. v. Gladstone, the Heiltsuk were granted the specific right to harvest herring spawn on kelp for commercial purposes, not a general right to fish commercially.

[100]        In my view, the preponderance of legal authority (specifically R. v. Van der Peet and R. v. Sappier) supports the position of the plaintiffs.  The specificity with which the claim must be characterized does not pertain to the species fished, rather it relates to persons, area and purpose.  In the case at bar, the appropriate description of the right claimed, is the right of the plaintiffs to harvest and sell the Fish Resources and Products in their Claimed Territories on a scale akin to commercial.

C.  RIGHT TO SUSTAIN THE COMMUNITY

[101]        The defendant objects to the plaintiffs’ attempt to characterize their aboriginal right to fish commercially as including the right to sustain their community from the Fish Resources in their Claimed Territories.  It submits that:

a.         the claim to sustain their community was not included in the Declarations sought in the Amended Statement of Claim and was not made by the plaintiffs until their written submissions filed on August 15, 2007.  The attempt to do so is tantamount to amending their pleadings.  I should not allow this because it is far too late in the proceedings and the defendant has been highly prejudiced;

b.         the plaintiffs are really seeking a guaranteed economic position in Canadian society under the guise of aboriginal fishing rights;

c.         the term “sustain the community” is ambiguous and unclear;

d.         the Supreme Court of Canada held in R. v. Sappier that there could be no aboriginal right to sustenance.  It is not the significance of the pre-contact practise but the practise itself that establishes the right;

e.         there is no evidence of the Coast Tsimshian sustaining themselves from the sale of fish; and

f.          the plaintiffs’ theory at trial was that the pre-contact Coast Tsimshian traded fish to accumulate wealth to support a social organisation that emphasized wealth, status and ceremonial displays.  This is inconsistent with a present day right to sustain the community by fishing on a commercial scale.

[102]        I agree with most of the defendant’s submissions above.  I am particularly concerned that neither party led evidence regarding any pre-contact practise of sustaining the community through trade on any scale.  The evidence regarding sustenance centred around hunting and fishing; the evidence regarding trade centred on wealth, rank and kinship.  It is irrelevant at this stage of the analysis whether the evidence as a whole supports the plaintiffs’ claim, but it is relevant to the fairness of the proceedings that a party not introduce, at the stage of final submissions, new issues that were not properly the subject of adjudication.

[103]        I am aware that the plaintiffs use the phrase “sustaining their community” in their Amended Statement of Claim; however, when I consider the context of the whole Amended Statement of Claim, and the manner in which the plaintiffs conducted their case and presented their theory, that phrase appears to refer to their right to fish for sustenance or subsistence, not commerce.

[104]        More importantly, however, is the Supreme Court of Canada’s admonition in both R. v. Sappier and R. v. Van der Peet that it is not the significance or purpose of the pre-contact practise that supports the aboriginal right, but whether the practise was integral to the distinctive culture of the group.  Of course, as pointed out in R. v. Sappier, a traditional means of subsistence (i.e. a pre-contact practise relied upon for survival), can in some cases be considered integral to the distinctive culture of the particular aboriginals.  I have considered this, but am of the opinion that in the case before me, it would not be appropriate at this late stage to characterize the plaintiffs’ claim to sell fish on a commercial scale as including a right to “sustain their community”.

D.  FOOD, SOCIAL AND CEREMONIAL PURPOSES

[105]        Surprisingly, the issue of an aboriginal right to fish for food, social and ceremonial purposes (”FSC”) was never placed before me as an issue in this trial until final submissions.  I assumed that this was because the defendant had never taken the position that the plaintiffs were not entitled to a FSC fishery and in fact issued a FSC license to the plaintiffs even though the plaintiffs refused to negotiate for one.  Nonetheless, the plaintiffs now seek a Declaration of an aboriginal right in this regard.

[106]        The defendant opposes such a Declaration on the grounds that it was not sought in the Amended Statement of Claim and it is too late to do so now.  The defendant complains it would be highly prejudiced if it could not lead evidence focussed on the extent of the FSC right that is claimed and the lack of any alleged interference.

[107]        As I have stated, the issue of the plaintiffs’ aboriginal right to FSC fishing was never before me.  Obviously the evidence touched on aspects of the plaintiffs’ pre-contact fishing practices, including consumption for FSC purposes, but this evidence was never proffered or received as relating to a separate claim.  The focus of this law suit has always been on commercial fishing.

[108]        FSC fishing is a very different right because it contains an inherent limitation that does not exist in commercial fishing (R. v. Gladstone).  In my opinion, to express the nature of the claim to include a right to fish for FSC purposes changes the complexion of the case from what was presented at trial.

[109]        The Amended Statement of Claim does not seek any declaration of a right to fish for FSC purposes.  In Williams v. British Columbia, 2007 BCSC 1700, [2008] 1 C.N.L.R. 112, the plaintiffs were unable to establish their claim to the whole of the lands in issue, so they too subsequently attempted to resile to a lesser claim.  Vickers J., relying on the decision of the English Court of Appeal in Biss v. Smallburgh Rural District Council, [1964] 2 All E.R. 543 (CA), refused to allow the plaintiffs to seek declarations that were not pleaded.  Vickers, J. quoting Harman L.J. from Biss at page 554, succinctly states:

… He who seeks a declaration must make up his mind and set out in his pleading what that declaration is.

[110]        That quote is applicable to the situation before me and I will not allow the characterization of the nature of the right being adjudicated upon to include FSC purposes.

[111]        Therefore, I will describe the nature of the plaintiffs’ claim as seeking an aboriginal right to harvest and sell on a commercial scale the Fish Resources and Products found in their Claimed Territories.

IV.  DATE OF CONTACT

[112]        The time period that a court should consider when identifying whether the aboriginal right as claimed meets the standard of being integral to the aboriginal society, is the period prior to contact between aboriginal and European societies (R. v. Van der Peet).  The date of contact is also significant because evidence from the time of contact will generally demonstrate what customs were significant to that particular culture, pre-contact (R. v. Côté).

[113]        Little guidance appears in the case law as to what is meant by “contact”.  The decisions of R. v. Van der Peet and R. v. Gladstone, confirmed by R. v. Sappier, refer to “the arrival of Europeans in North America” as the relevant time of contact.  In Delgamuukw v. British Columbia, the Supreme Court of Canada states that the activities that were protected were only those carried out at the time of contact or “European influence”.  In R. v. Adams, the court finds that the date of contact with respect to the accused’s Mohawk ancestors was the arrival of Samuel de Champlain in 1603 because that was when the French “established effective control” over what would become New France.  In Mitchell v. M.N.R. the court uses 1609 (not 1603) as the date of first contact relevant to the Mohawks, because the case involved a different group of Mohawks than the one in R. v. Adams.

[114]        In my opinion, given the Supreme Court of Canada’s admonition in R. v. Van der Peet that courts must focus on the particular aboriginal group claiming the aboriginal right, and that aboriginal rights are not generally universal but that their scope and content must be determined on a case by case basis, then the date of contact should be the date on which occurred the first direct arrival of Europeans in the area of the particular group of aboriginals, in this case, the Coast Tsimshian.

[115]        The defendant submits that the first direct contact with the Coast Tsimshian can be dated to 1787 when James Colnett sailed from Rose Harbour towards Hecate Strait.  Robert Galois, in his compilation of the journals of James Colnett (Robert Galois, ed., Voyage to the Northwest side of America: The Journals of James Colnett, 1786 – 89 (Vancouver, UBC Press, 2003)) states that Colnett concludes that although the aboriginals he met possessed a number of European artefacts, no European had ever been among them.  It was later determined, however, that these aboriginals were Kitkatla, or Southern Tsimshian, not Coast Tsimshian.

[116]        Similarly, Joseph Ingraham and Jacinto Camaano in 1791 and 1792 respectively came into contact with Southern Tsimshian, but did not encounter any aboriginals in the area of Metlakatla or Pearl Harbour.

[117]        By 1793, the maritime fur traders were present during both the summer and winter seasons trading European, American and native goods to various native groups.  By that time Captain Vancouver had reached Dundas Island, and the tip of Work Channel and Portland Inlet, which he named Point Maskelyne.

[118]        Both the plaintiffs’ and the defendant’s experts agree that it is likely that the aboriginal people Captain Vancouver describes meeting were Coast Tsimshian. Therefore, in my opinion, the most reasonable date of contact to be fixed for the purpose of this law suit is 1793.

[119]        I derive some comfort from the fact that since my conclusion in this regard, Vickers J. also chose 1793 as the date of contact pertaining to British Columbia in Williams v. British Columbia, supra. This is not to say, however, that indirect European influences were not at play before 1793, or should be ignored.

[120]        In the case at bar, there is strong evidence that the Coast Tsimshian began to experience the effects of European (Russian) trade goods as early as 1700 – 1750.  There is further evidence that the Haida and Tlingit both came into direct contact with Europeans upon the arrival of Juan de Perez in the Queen Charlotte Islands in 1774, and that the Coast Tsimshian had kinship and exchange ties with both these aboriginal groups.  Therefore, the practice, custom or tradition relied upon in this case to support the aboriginal right must be carefully analyzed to ensure it was an indigenous practice and not one that arose solely as a response to European influences.

V.  THE COAST TSIMSHIAN PRE-CONTACT SOCIETY

[121]        The next step in the analysis, according to R. v. Van der Peet and Mitchell v. M.N.R., is for the plaintiffs to establish the aboriginal right protected under S. 35(1) of the Constitution Act, 1982.  They must do this by proving the existence (and continuity in modern form) of the ancestral activity upon which the right is based, and its integrality with the distinctive aboriginal culture of the pre-contact society from which the plaintiffs claim to have descended.

[122]        In R. v. Van der Peet, the court says that the claimant must do more than demonstrate that the ancestral activity was an aspect of, or took place in, the aboriginal society.  It must demonstrate that it was a central and significant part of a society’s distinctive culture, one of the things that made this society truly what it was.  Therefore, the court cannot look at aspects that are true of every human society such as eating to survive, nor can it look at aspects of aboriginal societies that are only incidental or occasional.  The court must look to the defining and central attribute, the core of the culture.

[123]        In R. v. Sappier, the court clarifies the meaning of the phrase “distinctive culture” by referring to the aboriginal specificity sought to be captured.  “Aboriginality” means more than interesting cultural practices and anthropological curiosities.  Culture on its own is a difficult concept to grasp.  It has implicitly been taken to mean a fixed inventory of traits or characteristics.  Distinctive aboriginal culture must be taken to refer to the reality that despite British sovereignty, aboriginal people were the original organized society occupying and using Canadian lands.  The focus of the court should be on the nature of this prior occupation.  What is meant by aboriginal culture is really an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, socialization methods, legal systems, and potentially, their trading habits.

[124]        Applying the principles of R. v. Van der Peet and Mitchell v. M.N.R. to the allegations in the Amended Statement of Claim, the plaintiffs must prove that before contact with the Europeans:

A.         the Coast Tsimshian were members of an organized society;

B.         from which the plaintiffs have descended;

C.        who used and occupied the Claimed Territories;

D.        from which they harvested Fish Resources and Products as an integral part of their distinctive culture;

E.         traded them on a scale akin to commercial as an integral part of their distinctive culture; and

F.         have continued to do so in a contemporary fashion.

A.  ORGANIZED SOCIETY

[125]        In addition to being an element of proof of their aboriginal rights, Dr. Langdon points out that a general description of the social organization, cultural institutions, processes and values of the Coast Tsimshian is required to properly contextualize the characteristics and purposes of trade practiced by them.  Alleged trade, or more particularly alleged trade in Fish Resources, is the ancestral activity that lies at the heart of this lawsuit.

[126]        Determining the pre-contact stage of social organization of the Coast Tsimshian is also important to establish the time depth of the cultural practices distinctive to the Coast Tsimshian.

[127]        There is some confusion in the ethnographic literature regarding the levels of social organization.  It is important to note that what Dr. Anderson and Martindale call a village group, Boas and Barbeau call a tribe, and Garfield calls a local group.  Similarly, Dr. Anderson and Martindale refer to a House while Boas refers to a lineage, and Garfield refers to a lineage/Household/local segment.  They all agree on the term family as being the lowest level of organization.

1.  Houses and House Groups

[128]        Dr. Anderson explains that a Tsimshian individual is by birth a member of his or her mother’s matrilineal family group called a “Waap” or House.  Houses were generally occupied by twenty to forty persons including the chiefs and their families, lower ranking common relatives and varying numbers of slaves.  She uses the word House Group to distinguish the social group from the physical residence.  House Groups are the basic territorial and resource owning unit.

2.  Clans

[129]        Each House Group is a local segment of one of four matrilineal clan groups identified by major crest animals: Giscutwada (killer whale/black fish), Laxsgiik (eagle), Ganhada (raven), and Laxgibuu (wolf).  Clans are identified publicly by certain totemic images or crests.

[130]        Dr. Anderson states that the Nishga and Gitksan, who had the same type of matrilineal clan system as the Haida and Tlingit, had only two clans, while the Tsimshian had four.

[131]        It is interesting to note that the plaintiffs’ lay witnesses did not approve of the expression “clan” to describe their social organization.  They believed that the word clan belonged to groups of Scottish people.  They preferred the expression “crest” because of the physical crests on clothing displayed by members of a particular group to announce their identity.  I shall continue to refer to these crest groups as clans, not out of any disrespect, but because that is how they are referred to in the literature and throughout most of the evidence.

[132]        Dr. Anderson testified that it was prohibited to marry within a clan group even if no actual kinship connection could be traced.  Bands of clan group loyalty cut cross the bonds of local village origin and residence, and so intercommunity relations were facilitated by providing a local connection for those who married into a village, and for travellers and traders to be recognized by their clan relatives.

[133]        This dynamic of dual identification between clan and Household residents is one of the important and complicating features of Coast Tsimshian society.  The discussion of tribes below pertains to social organization, not clan lineage.

3.  Tribes

[134]        Groups of Houses referred to as villages, or tribes by Dr. Anderson, were the most important social and economic divisions, but are anthropologically the most enigmatic.

[135]        Dr. Anderson explained that the words “village” and “tribe” roughly designate the same groupings of people but in different contexts.  A tribe is the unit of social organization comprised of a number of House Groups with members of at least two different clans, while the village is the residential unit generally occupied by the members of the tribe including spouses and children.  Individuals who are members of a tribe may reside outside the tribal village while individuals who are not members of a tribe may reside in the tribe’s village.

[136]        Dr. Anderson states in her report that the authority of the Tsimshian leaders encompassed the entire village rather than each House leader leading an autonomous House Group.  She claims that the village chief was the chief of the highest ranked House Group in the village; however, she cites no support for this statement.

[137]        Martindale, in his thesis The River of Mist: Cultural Change in the Tsimshian Past (PhD thesis, University of Toronto, 1999), seems to agree with Dr. Anderson that each pre-contact village was an autonomous entity, acting coherently in matters of economy, trade, feasting and war under a village leader and his or her councillors.  Each owned territory in common which was distinct from, though contiguous with, other villages.  The majority of land within the village territory was owned by separate House Group lineages.  Some House Group land was held communally, but other areas were the private property of individuals.

[138]        All the sources seem to agree that at some point in time there were actually ten, then nine village groups that make up the Coast Tsimshian tribes as we know them today.  The difficulty lies in deciding when these villages or tribes actually came into existence.

[139]        The defendant submits that pre-contact there was no higher level of social organization amongst the Coast Tsimshian than a local House Group and that the concept of tribes was a post-contact phenomenon.  The plaintiffs submit that a tribe was a recognized and named unit within the Coast Tsimshian before the arrival of the Europeans.

[140]        The issue of whether tribes existed pre-contact is important because it may have bearing on:

a.         whether the nine tribes that comprise the Coast Tsimshian today are the descendants of the pre-contact aboriginal society that engaged in the activity upon which the aboriginal right is based;

b.         the extent to which the pre-contact aboriginal society was organized;

c.         the Claimed Territories and fishing sites that are sometimes identified using tribal names; and

d.         trading prerogatives that are sometimes described as belonging to tribes and tribal leaders.

[141]        Dr. Anderson states that the Coast Tsimshian consisted originally of ten Tsimshian tribes living in the lower Skeena River and surrounding islands and estuaries.  One tribe disappeared during the contact period, or shortly before, and thus only nine remain today.

[142]        Dr. Langdon purports to rely on Susan Marsden, Registrar and Acting Director of the Museum of Northern British Columbia in Prince Rupert, and Martindale to state that pre-contact, the chiefs of the nine tribes constituted a coordinating and cooperating network who worked together in war and in the management and allocation of trade rights.  He relied on Mitchell and Donald for the statistics that at contact the Coast Tsimshian population was about three to four thousand, divided into nine tribes consisting of between 350 and 400 people each.  He relied on Garfield’s descriptions of the nine tribes as follows:

Ginaxangi’k – People of the Hemlock

Gitando – People of the Other Side

Gispaxlo’ts – Elderberry Place People

Gilutsa’u – People in Inside

Gitlan – Canoe Stern People

Gitwalga’ts – People Where Kelp Is

Gitsi’s- Seal Trap People

Ginandoiks – People of the Swift Current

Gitsaxla’l – People from the Side of

[143]        He states that the above tribes functioned as critical units for certain social and economic purposes.  They had fishing, trapping and hunting camps in the lower Skeena River between mid-summer to fall, camps and facilities at the mouth of the Nass from mid-February to April, and in winter they congregated in close proximities at villages located initially at Pearl Harbour and later at Old Metlakatla.

[144]        Dr. Lovisek maintains that pre-contact, there was no political organization above the House Group, i.e. there were no political roles at the village level, although some House Groups were as large as villages.  She states in her report that “the Tsimshian did not develop their own lineage political leadership into village chieftainship until the early 19th Century”.

[145]        Dr. Lovisek was prepared to agree that the predecessors of the plaintiff Band (together with the Metlakatla Band) consisted of an amalgamation of members of four phratries (clans) and ten local groups, or tribes that traditionally wintered along Metlakatla Pass.  She points out in her report, however, that whether these ten named tribes described by the ethnographic literature existed during the pre-contact period has not been examined in the scholarly literature.  She maintains that these Coast Tsimshian ten tribes are the products of political and economic pressures that arose after contact with Europeans.

[146]        Dr. Lovisek maintains that the Houses developed into ten named groups some time in the proto-contact period that she describes as occurring between 1700 and 1787.  The tenth group, Gitwalksabae, became extinct on or before 1867, probably due to epidemics.  The remaining 9 tribes are the ones from which the plaintiffs claim to have descended.

[147]        Dr. Lovisek relies on several sources to support her opinion that tribes and tribal leaders were a post-contact development:

(a)        Barbeau defined the Tsimshian tribe as a “local agglomerate of families belonging to different clans, and in the course of time gradually assembled for political reasons”.  (Growth and Federation in the Tsimshian Phratries” (1915) Proceedings of the 19th International Congress of Americanists 402 at 406 – 407).

(b)        Susan Marsden has stated that the nine tribes of the modern period may not have used these terms to describe themselves in earlier times, and may have changed their tribal composition by adding new Houses over time (Susan Marsden, “Defending the mouth of the Skeena:  Perspectives on Tsimshian Tlingit Relations” in J. Cybulski, ed., Perspectives on Northern Northwest Coast Prehistory (Hull:  Canadian Museum of Civilization, 2001) 61).

(c)        Anthropologists, Paula Rubel and Abraham Rosman and Martindale, all suggest that the original social structure of the Coast Tsimshian consisted of two clans only, where one-half provided services to the other, including exchange of goods and women.  It was only after the wealth of the fur trade produced more complex structures that the clans increased in number to four.  (“The Evolution of Exchange Structures and Ranking: Some Northwest Coast and Athabaskan Examples” (1983) 39 Journal of Anthropological Research 1, together with Marjorie Halpin in The Tsimshian Crest System: A Study Based on Museum Specimens and the Marius Barbeau and William Beynon Field Notes (PhD Thesis, University of British Columbia, 1973)).

(d)        Garfield is also of the view that tribes as entities consisting of multiple villages led by a tribal Chief were formed as a response to Russian trade on the North West Coast in the early 18th century.  She states that pre-contact occupation of fishing sites in the Skeena were year round, and seasonal rounds between the coast and interior that resulted in the multi-villages did not occur until post-contact, (Viola Garfield, Tsimshian Clan and Society, Volume 7(3), supra).

(e)        Dr. Lovisek thought that Martindale supported Garfield’s conclusions about the seasonal round, and multi-villages, but on cross-examination she admitted that the portion of Martindale’s thesis that she was relying upon dealt with the origin of one over-arching tribe known as the Coast Tsimshian, not whether the nine Tribes existed before contact.  As I discuss below, a closer reading of Martindale’s work would have shown her that contrary to Garfield’s views, he concluded there was evidence of a seasonal round before 1787.

a)  Seasonal Round

[148]        One of the features of Coast Tsimshian life that may resolve the issue of whether the Coast Tsimshian tribes existed pre-contact is what the experts and scholars refer to as the “seasonal round”.  The seasonal round is a structured schedule of activities in which people collect resources from different ecological zones across the landscape when they are most abundant.

[149]        Martindale addresses the issue of the seasonal round in his thesis, The River of Mist:  Cultural Change in the Tsimshian Past, supra. He finds that the view of the ethnographers does not accord with the archaeological evidence he uncovered from several archaeological surveys, most important of which was at the Psacelay and Ginakangeek sites.

[150]        Psacelay was located in the Gitnadoix Valley and contained two well preserved House features dating to just before 1787, which date Martindale attributes to the arrival of Europeans in Tsimshian territory.  Excavations have provided comprehensive archaeological data from this interior zone, pre-contact habitation site.  From his findings, Martindale determines that the seasonal round of the Coast Tsimshian changed as their social complexity changed.

[151]        Martindale writes that prior to 1787, Tsimshian local groups occupied small, extended family Household communities such as Psacelay, dispersed throughout the interior zone.  These groups would follow an annual cycle of migration from the interior territory in the summer to the coastal territory in the winter with a short stay at the Nass River in the early spring for the seasonal exploitation of eulachon, a small anadromous fish.

[152]        After contact, the settlement pattern changed to include larger habitation sites, such as Ginakangeek, containing multiple Houses and Households, located within the local group territory along the Skeena River.  Thus Martindale concludes that the pre-contact settlement pattern was substantially modified after 1787 by the abandonment of habitation sites in the lower Skeena River tributary valleys in favour of larger village sites along the Skeena River.  He argues that the changes were part of a regional hierarchy of indigenous settlements which developed during the first fifty years after the arrival of Europeans.

[153]        He concludes that the archaeological changes he discovered between the Psacelay and Ginakangeek sites are evidence of an increase in social complexity within Tsimshian society, after contact, from a segmentary regional organization to an incipient paramount chieftain.

[154]        Martindale points out that two primary Tsimshian scholars, Boas and Garfield, do not agree on the nature of the settlement pattern and seasonal round. In Boas’ cycle, the entire local group lived together in winter villages.  In the Spring only part of the group moved North to the Nass River where they lived for the 3 to 4 weeks it took to catch and process the eulachon before rejoining the local group at Metlakatla.  In early summer, the entire local group moved to the interior where they occupied a summer village analogous to the coastal winter village.  Boas presented this pattern as characteristic of late pre-contact society, and is a pattern to which most anthropologists subscribe.

[155]        Garfield discusses changes in the 19th Century, but her patterns do not agree with Boas’.  She states that the seasonal round developed in the late 18th Century as a response to the developing coastal fur trade.  In her 1939 ethnography she writes that once the seasonal cycle began, local groups split into lineages and did not reside together in summer villages (Tsimshian Clan and Society, supra).  However, in her 1966 book she implies that both the coastal and interior villages were occupied year round.  (Viola Garfield, The Tsimshian and Their Neighbours” in V. Garfield and P. Wingert, eds., The Tsimshian Indians and their Arts (Seattle:  University of Washington Press, 1966)).

[156]        Martindale attempts to reconcile these conflicting views by concluding that Boas’ scheme refers to the early 19th century, and Garfield likely conflates a much longer time span of changes than she was aware.  He maintains that the seasonal round was in effect at least 1500 years ago.

[157]        Dr. Anderson opines that on the basis of the archaeological literature she had read, ten tribes of the Tsimshian maintained a pattern of residing in up river villages for hunting, fishing and gathering, and in permanent winter villages in the Prince Rupert Harbour area, for about 1700 years before the Europeans came.  When Fort Simpson was established by the HBC in 1834, these ten tribes moved their winter village site around the Fort.  It is these ten tribes that resided during the 19th century around Fort Simpson and Metlakatla that are known as the Coast Tsimshian.  (Although the Kitselas and Kitsumkalem Groups share the same Coast Tsimshian smalgyax language and similar cultures, they never moved to the coast and thus never had territory below what is now Terrace.  There were kinship and trade relationships, and interaction between the groups but they were politically distinct).

[158]        On cross examination, Dr. Anderson agreed with Martindale’s conclusions that after contact, the 10 tribes’ settlement pattern changed and interior sites such as the one excavated by Martindale at Psacelay became depopulated while new sites such as Ginakangeek emerged along the Skeena River.  The early 19th century settlement shift correlated with the development of a regional political hierarchy and accommodated the changing economic requirements of the post-contact period.  The construction of villages such as Ginakangeek allowed village groups to maintain access to both their traditional food supplies which were scattered throughout the tributary valley, and the emerging interior-to-coast trade along the Skeena River.  She agreed that it was during this time that the Coast Tsimshian and their neighbours established incipient paramount Chieftains.

[159]        I am prepared to find on a balance of probabilities that the ten named tribes of the Coast Tsimshian likely were in existence and had permanent winter villages on the coast before the coming of the Europeans.  They may not have existed in exactly the same composition as after contact, nor occupied exactly the same territory as the Claimed Territories, but the core of the ten tribes, or village groups, was there.

[160]        I further find that there was no cohesive, over arching, political regional organization until after the commencement of the fur trade, although there were social bonds and relationships amongst clan members of different villages.  As Dr. Anderson writes in her Introduction to The Tsimshian: Images of the Past, views for the Present Margaret Seguin Anderson, ed., (Vancouver: UBC Press, 1984) XV, “the major subdivisions of the Tsimshian rarely functioned as political or economic units, though there were some long term alliances, particularly among the Coast Tsimshian near the mouth of the Skeena.  In general, each village was an independent territorial, economic and political unit”.

B.  DESCENDANTS

[161]        Since aboriginal rights are communal, it is the community that has descended from the pre-contact community that must be identified as the proper plaintiff.

[162]        In its Statement of Defence, Canada refuses to admit that the members of the plaintiffs’ band are present day members of the nine Coast Tsimshian tribes, or that Chief Garry Reece and the Lax Kw’alaams Band are authorized to bring this law suit. Counsel did not argue either of these points in any detail.

[163]        I am satisfied from the evidence of the lay and expert witnesses that the plaintiffs are descendants of the nine tribes discussed above and that these nine tribes, known collectively as the Coast Tsimshian, existed in the form I have described above, at the time of contact.  Therefore, the plaintiffs are entitled to claim aboriginal rights arising from the existence and past practises of the nine tribes.  Furthermore, the plaintiffs are authorized to bring this lawsuit.

C.  RANK

[164]        It appears that all the experts agree that Tsimshian society was highly structured.  Rank and social position were determined partly by tradition and inheritance, but were maintained and enhanced by on-going accumulation of wealth.

[165]        Dr. Anderson agreed with the work of Coupland, Martindale, and Marsden, who stated that:

Tsimshian society was highly structured.  The principal of rank or social precedence was rigidly adhered to, and was used to differentiate people into named positions of status.  Lineage based House Groups and local groups were also ranked.  Positions of rank pertaining to individuals, House Groups and local groups were established and reaffirmed at elaborate feasting and exchange ceremonies, the famous potlatches.  The groups that hosted the most frequent and most elaborate potlatches were, invariably, highest ranked.

(“Does Resource Abundance Explain Local Group Rank among the Coast Tsimshian?” in Jerome C. Cybulski, ed., Perspectives on Northern Northwest Coast Prehistory (Hull: Canadian Museum of Civilization, 2001) 223).

[166]        Dr. Anderson testified that the ranked structure of the pre-contact Tsimshian society was an integral and distinctive element of that society.  Rank to the Coast Tsimshians was a significant political and economic asset achieved through economic transactions.

[167]        Dr. Langdon said the elevation of status through attaining high ranking names was one of the primary motivations of the elite in conducting their productive efforts, although prestige could be obtained through other means besides wealth.  He separates rank into two main groups:  (i) freemen consisting of noble lineage, title holders, non-noble lineage and commoners; and (ii) slaves.

[168]        Dr. MacDonald testified that the archaeology of Prince Rupert Harbour shows rank through House size and location, storage spaces, wealth goods, and lavish life style.  It was Dr. MacDonald’s theory (in testimony) that because the North West Coast was not a harsh environment and the occupants did not require a co-operative society to survive, ranked societies and structures developed through time.  There was co-operation amongst the autonomous groups but not amongst the ranks.

[169]        Martindale writes in his thesis, The River of Mist:  Cultural Change in The Tsimshian Past, supra, that in terms of social complexity the pre-contact Tsimshian were a ranked type of unstratified society.  The highest rank was leadership of a local group.  Village chiefs were similarly ranked, but there is no indication that the position of the highest ranked chief came with any regional political authority.  There was no regional political organization, although the ten local groups shared cultural, linguistic and ceremonial characteristics.  Political authority was thus a function of one’s lineage status.  Such factors as a lineage’s success at trading, value of its trading prerogative, acumen of its leaders, traditional status in recent history, and net wealth contributed to its rank within the village, and by extension, within the region.  The power and authority of local group leaders did not extend to members outside of their own local group.

[170]        Dr. Anderson testified that high rank could be lost or gained through gifts and payments.  There were more than 100 types of economic transactions involving wealth goods, provisions or prerogatives.  Enhanced or decreased social status was achieved through feasting and ceremonies or the lack thereof.  Thus the potlatch as it has come to be known, played a very significant part in Coast Tsimshian society.

D.  WEALTH

[171]        Both sides led a lot of expert evidence regarding the attitude of the Coast Tsimshian towards what they considered to be wealth.

[172]        The plaintiffs submit that wealth was a key source of attaining rank and therefore was integral to their distinctive society.  They submit that the Coast Tsimshian were an opulent people long before the arrival of the fur traders, largely because they were able to trade their Fish Resources.

[173]        The defendant submits that there is a significant distinction between the type, magnitude and source of wealth in the pre-contact Coast Tsimshian society from the post-contact society.

1.  Types of Wealth Goods

[174]        There were different types of wealth in pre-contact Coast Tsimshian society.  Dr. Langdon describes wealth as including adaawx accounts, crests, regalias and names, not just material goods.  It also included territorial resources and exotic goods such as copper.  He says wealth goods were not for personal comfort, but for display and distribution.

[175]        The “halait” or supernatural power was also key to rank and wealth.  This separated the elites from the “real people”.  Special regalia for the Shamans were made of caribou obtained only from the Athabascans.  Exotic goods were part of the creation and reinforcement of the elite and shamanic class because they raised the status of the possessor.

[176]        Dr. MacDonald points to the existence of exotic goods (goods that originated outside the region or territory) dating to 2500 B.P. that were imported into Prince Rupert Harbour in order to buttress rank.  Exotic goods such as amber, jade, obsidian and argillite equalled wealth.

[177]        Dr. Anderson refers to wealth items that the Tsimshian had to get through trade such as canoes, slaves, furs, coppers, hides, horned spoons, woven blankets and exotic goods.  Boas refers to martin, sea otter, raccoon, elk skins and dancing blankets.  Dr. Langdon refers to dentalium, caribou and crests.

[178]        Dr. Lovisek, in keeping with Martindale, maintains that salmon and other marine resources were not considered wealth objects, unlike eulachon grease.

[179]        In “The Tsimshian and Their Neighbours”, supra, Garfield states that wealth on the entire coast was in slaves, accumulated stores of food, manufactured goods and in the northern part of the area, a large percentage of what was produced from the resources of lands and waters.

2.  Means of Obtaining Wealth

[180]        There were three possible means of obtaining wealth: surplus production (see VIII. B.), potlatch distribution (see below), and trade (see sections VIII. and IX.).

[181]        Dr. Langdon testified that rank and wealth were supported by surplus production of food that could be traded by groups over long distances.  He also said there is evidence in the oral traditions about wealth, how change in prior trade was used to obtain wealth items, how objects from a distance and outside of the productive systems were highly regarded and displayed, all contributing to prestige.

[182]        Dr. Lovisek testified that the accumulation of wealth for feasting was accomplished through the organization of labour, specialization and production supplemented by a network of intertribal trade ties that facilitated the importation of exotic prestige goods.  Subsistence production was diverted into non-subsistence activity such as competitive feasting and obtaining of exotic trade items.

[183]        The main means by which wealth was displayed and distributed was through feasts and potlatches.  Dr. Langdon refers to these as “core institutions”.  They comprised a central and essential, perhaps even determining institution, upon which the social consciousness and energy in Coast Tsimshian society focused.  The lineage mode of production operates in order to make the potlatch possible.  He explains that potlatches ranged in their social significance and importance from those given by high ranking chiefs on social occasions of great significance to those given by aspiring lower ranking persons to recognize a ceremony in which their children have participated.  All significant changes in social status and many insignificant ones were validated through distribution of goods.  Dr. Langdon says “these events were a constant and ongoing feature of Coast Tsimshian life as frequent and inescapable as the rainfall which drenches the coast”.

[184]        Dr. Anderson admitted that gifts given at a feast were not a form of trading.  A major feast was referred to as a potlatch and it was used to redistribute food.  She agreed with Dr. Langdon that the potlatch has embedded within its distributions, economic transactions that are not gifts but payment for services rendered in goods received.  Therefore, potlatches were used to distribute food, but the constant element was a public distribution of wealth.  Prestige depended on the amount of wealth displayed and given away.

[185]        Dr. Anderson said that potlatches were the foundation of the economic system, the stimulus for accumulation of goods and the one source through which wealth might be acquired.  Accumulation and distribution of goods affected the relationships between the clan and tribal members.  Potlatches were also instrumental in overcoming shortage in salmon.

[186]        Dr. Lovisek maintains that the pre-contact potlatch was different than post-contact potlatches.  According to Dr. Lovisek, the main purpose of the pre-contact potlatch was to validate property rights or rank.  There were no elaborate demonstrations of wealth until the fur trading influence took effect.  The early potlatches rarely involved exotic goods and then these were only for show, not to give away.  The post-contact potlatches not only increased in size but also opportunity, because of new buildings, rum and rice feasts, and raids and epidemics leading to deaths.

[187]        She relies in part on Dean who writes in his thesis ‘Rich Men’, ‘Big Powers’ and Wastelands, supra that as ceremonialism was founded on sacred concepts of legitimate behaviour and social consensus, there was little motive to accumulate more wealth than needed to celebrate title or advance children.  Therefore, one cannot extrapolate from post-contact times back to pre-contact times when analyzing potlatches and feasts.  Post-contact, there was a combined increase in purchasing power plus depopulation that led to an increase in potlatches and feasts.

[188]        Dr. Lovisek states that another difference between the pre and post-contact potlatch was that the gift giving of food during the pre-contact feast was from a group’s own territories and not outside of them.  This demonstrated a control of specific lands and resources.

[189]        Martindale writes in his thesis that Tsimshian society was organized not only to produce economic resources for survival, but also to create wealth above the subsistence needs of the population.  Prior to contact, one of the most successful means of producing wealth was by producing storable food in excess of needs.  Other means also existed such as raiding for wealth and slaves, production of manufactured items, and trade in exotic materials, but the most reliable means was through surplus production of food staples.  After contact, the desire for wealth remained the same but a new means developed: trade with Europeans.  The interior to coast fur trade became so significant that many Tsimshian abandoned the production of the subsistence economy in favour of the trade economy; however, this subsistence economy remained the only means of producing food.  This caused a shift in the settlement pattern after contact which is visible in the archaeological record.

[190]        Martindale concludes that in post-contact times wealth, which traditionally had been based on surplus of subsistence goods, now became available through the production of commodity furs.  Trade in the first half of the 19th century converted furs directly into wealth.  This undermined the production of surplus food stuff, but could not replace the need for subsistence goods.  The early changes split the indigenous economy into a subsistence production sphere and a wealth production sphere.  This permitted the Tsimshian to maintain social and economic traditions independent of the early influence of European culture.  The wealth production sphere remained linked to the traditional mechanisms of status and political authority.  Therefore, the early Tsimshian beneficiaries of European trade were indigenous leaders.

[191]        In cross examination, Dr. Lovisek appeared to agree with Martindale that wealth, which had been obtained through trade in surplus food stuff prior to the fur trade, became available directly through trade in furs in the post-contact era.  The plaintiffs say this is an important point because it may explain why little trade in food stuff between aboriginals was observed by the early traders, since through the fur traders the Coast Tsimshian were able to acquire wealth directly.

[192]        From a review of the evidence concerning the Coast Tsimshian relationship to wealth, I agree that the concepts of wealth and rank were inextricably tied into the social organization and were an integral part of the distinctive culture of the pre-contact Coast Tsimshian.  It remains to be seen, however, whether trade in Fish Resources was the primary means of attaining this wealth and status, and thereby inextricably linked to the culture, or whether the impact of the fur trade, a post-contact phenomenon, was responsible for the opulence of the Coast Tsimshian.

VI.  CLAIMED TERRITORIES

[193]        The parties agree that aboriginal rights must be defined in the context of a specific geographical region.

...if an aboriginal people demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture then, even if the right exists apart from title to that tract of land, the aboriginal right to hunt is nonetheless defined as, and limited to, the right to hunt on the specific tract of land.  A site-specific hunting or fishing right does not, simply because it is independent of aboriginal title to the land on which it took place, become an abstract fishing or hunting right exercisable anywhere; it becomes a right to hunt or fish on the tract of land in question (R. v. Adams, 119).

[194]        As the plaintiffs are attempting to establish aboriginal rights, not aboriginal title, there is no need for them to prove that their Claimed Territories were or are used and occupied exclusively by them.  Furthermore, I am of the opinion that it is not incumbent on the plaintiffs, at this stage of the litigation, to prove the precise metes and bounds of the places where they say they have the aboriginal right to fish.

[195]        The plaintiffs submit that they owned and occupied territories on the lower Skeena River, winter villages at Prince Rupert Harbour, and coastal areas including the outer islands around Prince Rupert like the Dundas group of islands and Stephens Island.  Their Claimed Territories also include areas to the north of the Skeena River up to Portland Inlet, including Work Channel and the Khutzeymateen Inlet.

[196]        The defendant submits that there is very little evidence of specific pre-contact Coast Tsimshian fishing sites, apart from the evidence that the Coast Tsimshian fished at eulachon sites at the Nass River, which are outside the Coast Tsimshian territories.  There are some general references to fishing at locations along the Skeena River tributaries, but the evidence falls far short of the evidentiary burden required to prove site specific aboriginal fishing practises.

[197]        The submission of the defendant is not quite in accord with the evidence of its expert, Dr. Lovisek who appears to agree that the evidence established fishing sites and occupation of the Coast Tsimshian in the Prince Rupert Harbour area and some of the lower Skeena tributaries and coastal islands.  She opined that parts of the claim areas in the Dundas Island groups, and areas to the North and West of Work Channel, including Work Channel, were used by Nishka and Tlingit groups, but some of these peoples may have later amalgamated with the Coast Tsimshian peoples.  In 1846 through to the early 1900’s, the Dundas Island group continued to be used by Haida and Tongas as well as Coast Tsimshian.

[198]        The real dispute over territories appears to concern the following areas:

1. Skeena River mainstream;

2. Zymoetz River;

3. Zimacord River and Valley;

4. Dundas Island group;

5. Nass River and Fishery Bay.

1.  Skeena River Mainstream

[199]        Martindale wrote in his thesis, The River of Mist:  Cultural Change in the Tsimshian Past, supra, that the Tsimshian have continued to live in and use their interior territories from pre-contact to the present.  Indeed, in the period after contact, rather than abandoning the interior, the Tsimshian developed a new form of regional settlement which included the construction of new villages on the Skeena River.

[200]        The two primary Tsimshian ethnographers do not agree on the nature of the Tsimshian settlement pattern in the interior zone.  Most archaeologists follow Boas’ scheme in which the seasonal round is a pre-contact pattern which dissipates after the Tsimshian begin to participate in the European trade economy.  Garfield’s scheme for the history of the settlement pattern (see section VII. A. The Seasonal Round) is not frequently supported in the literature, but neither has it been adequately refuted.  Martindale suggests that her late 18th century developments are a conflation of settlement patterns of three phases.

[201]        Martindale explains that when the anthropologists refer to the “lower Skeena”, they are referring to the river and tributaries below Kitselas Canyon.  The Coast Tsimshian had summer villages and camps at various fishing sites in this area.  They may have had winter villages in the Skeena territories originally, but over time their occupation of the lower Skeena watershed occurred seasonally.

[202]        On cross examination, Dr. Anderson agreed with Martindale’s conclusions that after contact, the northern Tsimshian settlement pattern changed and interior sites such as the one excavated by Martindale (Psacelay) became depopulated while new sites such as Ginakangeek emerged along the Skeena River.  The early 19th century settlement shift correlated with the development of a regional political hierarchy and accommodated the changing economic requirements of the post-contact period.  The construction of villages such as Ginakangeek allowed village groups to maintain access to both their traditional food supplies which were scattered throughout the tributary valley, and the emerging interior-to-coast trade along the Skeena River.

[203]        Dr. Lovisek opines that Tsimshian local groups occupied discreet localized parcels, mostly segments of tributaries of the Skeena River which they used for lodges, hunting, fishing and gathering.  She states that it is apparent from ethnographic data that many branch rivers and creeks had fishing access over only part of the length of the water course and not the whole tributary as indicated on the Lax Kw’alaams Fisheries Resources Site Map.  She also notes that Martindale listed locations which he considered to be common ground used by all Coast Tsimshian, but these areas do not appear on the Lax Kw’alaams map.

[204]        Dr. Lovisek writes in her report that at some undefined time during the proto-contact period (about 1700–1787), the clan groups reorganized politically into ten or more named local groups.  Two groups of the Lax Kw’alaams who had both summer and winter territories on the seacoast were Gitzaxlaal and Gitwilgyoots.  The groups who had winter villages on the coast and summer territories on the lower Skeena River below Kitselas Canyon included Gitsi’s, Gitlan, Ginaxangi’k, Gitnadoiks, Gitando, Gilutsa’u, Gispaxlo’ts and Gitwilsebwa.

[205]        The Gispaxlo’ts, Gitando, and Gilutsa’u are not shown to have sites with houses or campsites on the Skeena River during the late pre-contact period, but in the contact period, all Coast Tsimshian groups are shown to have village sites on the Skeena River.

[206]        By the late 19th century, the annual journey to the interior for subsistence food collection had become unnecessary.  The Coast Tsimshian’s dependency on marine resources in the former interior areas was reduced as other foods brought by visiting groups, and food from the fur trading post at Fort Simpson and schooners became readily available.  The areas along the tributaries of the Skeena River were increasingly used for hunting and trapping game animals for the European fur trade.

[207]        In conclusion, the evidence is ambiguous whether the Coast Tsimshian fishing territories included the Skeena River mainstream or not, by the time of contact.  The settlement patterns indicate a growing occupation along the Skeena River mainstream in correlation with the increase of the fur trade, but the fishing pattern didn’t change until modern times and the use of the gill net.  In pre-contact times the fishing techniques required shallower, calmer, water to be successful.

[208]        On a balance of probabilities, the plaintiffs have established that at the time of contact they fished in the tributaries of the Skeena River, but not in its mainstream.

2.  Zymoetz River

[209]        The Zymoetz River flows into the Skeena River, but the defendant submits that it is a part of Kitselas territory.

[210]        Duff places the Kitselas in both the lower and upper Zymoetz River.  He also places them in Lake Else Lake which he says was shared with the Gilatsa’u of the Coast Tsimshian.

[211]        On balance, the only evidence before me supports the defendant’s position, that the Zymoetz River was not within the Coast Tsimshian traditional fishing grounds.

3.  Zimacord River and Valley

[212]        There has been a longstanding conflict between the Coast Tsimshian and the Kitsamkalem who say that their use of land along the Skeena River and the coast grants them legal status to the resources in those territories.  For example, the Gitlan of the Coast Tsimshian once occupied the Upper Zimacord Valley but were pushed out by the Kitsamkalem.  Dr. Anderson suggested that this fact was disputed, but Dr. MacDonald refers to this in his thesis.

[213]        Wilson Duff also places the upper Zimacord Valley in Kitsamkalem territory.  In 1891, Kitsamkalem received Indian Reserve No. 3 at the mouth of the Zimacord River in recognition of their use of the local as a fishing ground.

[214]        In conclusion, it has not been established on a balance of probabilities that the Zimacord River and Valley were part of the Coast Tsimshian traditional fishing grounds.

4.  Dundas Island Group

[215]        The plaintiffs’ claim for territories and camps along islands such as Dundas, Stevens and Portland Island is in serious dispute.  The plaintiffs rely on the archaeologist David Archer who stated that the Tsimshian and Tlingit co-existed on these islands 2500 years ago.  Then a group of hostile Tlingit forced out the Tsimshian and existing Tlingit.  Then the Tsimshian forced out the hostile Tlingit by 800 A.D. and continued to use Dundas as a seasonal fishing camp.

[216]        The defendant relies on Dr. Lovisek who in turn relies on archaeologist, James Haggerty, for the proposition that the Tsimshian did not return to Dundas Island until 1700 or 1750.  (James Haggerty, “Zayas Island Archaeological Survey Project” (1988) 20 The Midden 1).

[217]        The story of Dundas Island and the competing factions of the Tlingit and Coast Tsimshian is very interesting from a historical point of view, but probably irrelevant for the purpose of this Judgement.  The fact of the matter is there were a series of battles between the Tlingit and Coast Tsimshian and these battles were eventually won by the Tsimshian who continued to use Dundas Island seasonally from the 1700’s to the present.

[218]        At least since the time of the last war with the Tlingit, the Coast Tsimshian have occupied this territory.  It is fair to say that all of the experts, archaeologists and anthropologists agree that the Tlingit were pushed out at the latest by 1750, which is still before the date of contact.  Therefore, the plaintiffs have proved that the Dundas Island group belong to the areas of pre-contact fishing sites of the Coast Tsimshian.

5.  Nass River and Fishery Bay

[219]        The use of the Nass River for fishing raises the issue of the aboriginal laws of permission and trespass that existed in pre-contact times.

[220]        Dr. Anderson testified that according to Tsimshian law, territories were owned by a House and administered by the chief of the House.  People passing through a territory could take food but only a limited quantity.  Permission was required to enter a territory.

[221]        At contact, a Coast Tsimshian person could harvest resources from his own House territory and could harvest from another House’s territory with permission or if married to a member of that House Group.  This applied to hunting, harvesting berries and medicines, and fishing.

[222]        The evidence was not clear whether historically, the Coast Tsimshian could fish for eulachon at Fishery Bay or elsewhere on the Nass River without the permission of the Nishka.  It appears that the Nishka, Tlingit, Coast Tsimshian, Southern Tsimshian, Kitkatla and sometimes even the Haida participated in the eulachon fishery.  What is clear is that the Nass River and Fishery Bay are part of the Nishka claimed territories.

[223]        The Nishka have always claimed that the other aboriginal groups had to seek permission to fish in the Nass River and Bay areas.  Permission, when granted, was limited to the period of time that the eulachon ran.  In fact, the Coast Tsimshian have an arrangement today whereby they provide access to the Nishka for a road through their reserve in exchange for a license of occupation for the eulachon fish camps at the Nass River.

[224]        Without deciding whether the Nishka have a valid claim over the non-treaty areas of the Nass river, such as Fishery bay, I find that it is more likely than not that the Coast Tsimshian fished there only with the permission of the Nishka, only for eulachon, and only during the few weeks of eulachon season.

VII.  HARVESTING OF FISH RESOURCES AND PRODUCTS

[225]        No one disagrees that the pre-contact Coast Tsimshian and the present day Coast Tsimshian are a fishing people.  Indeed, their very existence is attributed to the abundance of marine and riverine foods available to them.  There are, however, two types of Fish Resources that supersede all others in their influence on Coast Tsimshian history and culture, and those are eulachon and salmon.  These fish dictated where and how the pre-contact Coast Tsimshian spent their time during the year.  They were revered in ritual, endowed with supernatural qualities in the halait, or adaawx, and formed the core of the subsistence economy.  All other Fish Resources pale by comparison.

[226]        Dr. Anderson writes that most authors seem to agree that the Tsimshian were fortuitously placed in the geography in the province. Salmon was abundant and easy to catch in the tributaries of the Nass and Skeena watersheds; however, salmon has always been a finicky fish and prone to fluctuating periods of scarcity.

[227]        Dr. Anderson points out that the interior tribes were less lucky.  While they, too, had access to salmon it was less reliable and more susceptible to fluctuation in quantity.  When the salmon failed they had less to fall back on, whereas the Coast Tsimshian had access to other marine resources.

[228]        Dr. Lovisek writes that pre-contact, the primary marine environmental zone on the coast for the harvesting of marine resources was the shallow waters of the continental shelf, called the Neritic zone.  This zone was directly exploited by pre-contact peoples for marine mammals, fish, shellfish, bird and marine plants.

[229]        Dr. MacDonald’s archaeological research at the village sites in Prince Rupert Harbour found some faunal remains of halibut, rock sole, starry flounder, aerotooth flounder, cabezon, green ling, copper rock, cod, four species of salmon, spiny dogfish and ratfish, as well as land mammals.  (George F. MacDonald and Richard I. Inglis, “An Overview of the North Coast Prehistory Project (1966 – 1980)” (1980 – 81) 48 BC Studies 56).

[230]        Other Prince Rupert Harbour areas, like McNicholl Creek and a site on Ridley Island were dominated by fish bones.  The McNicholl Creek site showed that eulachon and sea mammals were apparently not used by occupants.  This pre-contact model of subsistence differs from the historical ethnographic pattern, as it shows that certain key resources were not used in the early pre-contact period.  This site also represents the occupation of a local group which did not have sea mammal hunting territories outside the inner harbour area.

A.  THE SEASONAL ROUND

[231]        Dr. MacDonald and the other experts describe how the seasonal round was at the core of the pre-contact subsistence economy.

[232]        Frans Boas discusses Coast Tsimshian seasonal activities from which McDonald extracts a reconstruction of the aboriginal cycle.  He writes that at the end of winter, before the river ice broke up, the main activity was eulachon fishing on the Nass.  The fish were either dried or processed into nutritious grease that was highly prized.

[233]        May was the time for the Coast and Southern Tsimshian to gather and dry seaweed from rocks along the coast.  While there, men fished for halibut that women sliced into thin fillets for drying on racks in the sun.  Large quantities of herring spawn were also gathered at this time.

[234]        The eggs of seagulls and oyster catchers were gathered in early June and abalone was taken at the lowest tides during the summer months.  The first salmon of the year began to enter the tidal waters during the seaweed season, at which time they were caught by trolling.  As the salmon began to enter the rivers in early summer, people moved to traditional fishing sites where they maintained seasonal camps.

[235]        Early autumn was a period for preserving the major supplies of salmon, especially chum, which was ideal because of its less fatty content.  The failure of a salmon run could cause a winter of deprivation.  Access to all five salmon species provided some insurance against famine.

[236]        Most Coast Tsimshian spent winter in the permanent villages.  Shellfish such as cockles, clams and mussels abounded in the coastal waters.  Archaeological remains from Ridley Island show that there were winter and spring collection of shellfish, and minor use during the summer and fall.  Evidence from McNicholl Creek, Grassy Bay and Ridley Island indicates seasonal occupations in which the occupants exploited specialized resources such as salmon from elsewhere.

[237]        Archaeologist Kenneth Ames says during the 18th and 19th centuries the Coast Tsimshian started to maintain principal villages in Prince Rupert Harbour.  Dr. Lovisek says this suggests that the Coast Tsimshian occupation of the coast and seasonal use of the Skeena River likely occurred during the 18th and 19th centuries, and not earlier.  (Kenneth Ames, “Economic Prehistory of the Northern British Columbia Coast” (1998) 35 Arctic Anthropology 68).

[238]        Garfield writes that there was a strong tendency for the winter village to break up into individual family units, particularly for salmon fishing.  The seasonal runs of salmon, herring and eulachon set the pattern for the yearly cycle of economic activities.  “Hoards of fish milled about the estuaries or fought their way along the streams to spawning grounds and attracted native fishermen as they do commercial fishermen today”.  Spring and summer was when food was preserved and stored for November through February.  Families had to store sufficient provisions to meet the demands of trading, feasting, potlatching, purchase of services and payment of debts in addition to daily needs.  (Viola Garfield, Tsimshian Clan and Society, Volume 7(3), supra).

B.  HARVESTING

[239]        Dr. Lovisek writes that pre-1775 northwest groups including Coast Tsimshian engaged in a troll fishery in channels or inlets where salmon were caught from baited hooks behind canoes and generally eaten fresh.  Pre-contact native peoples used tidewater salmon traps with either stake and pole or stone weirs, cylindrical river traps with or without a funnel entry, a trapdoor for removal of fish in a weir construction, open top traps in a frame of posts used with the weir across a stream, grid traps with a barrier of oblique stakes, pot hanger traps, weirs made of oblique stakes, and small rectangular, baited saltwater traps.  Not all pre-contact groups used all methods because use depended on local conditions.

[240]        Dr. Anderson writes that besides trolling, nettle fibre nets, trawling, gaffing, river mouth traps, tidal traps, weirs and dip nets, fishing techniques included gill nets.  She also says that the major river system in the lower concourse of the Skeena watershed was less susceptible to resource variation and thus the Coast Tsimshian chose to fish there.

[241]        Dr. Lovisek points out that the pre-contact Coast Tsimshian engaged in a shallow water fishery, most importantly the inland tributaries.  Large rivers like the Skeena were too wide, deep and powerful to permit the construction of weirs.  Most of the salmon harvest was taken with the aid of weirs or traps so she concluded it must have been taken in smaller streams.

[242]        Dr. Lovisek relies on Coupland, Martindale and Marsden who find that the Tsimshian intensively fished the tributary streams, rather than the Skeena River.  They say that pre-contact fishing technology consisted of weirs and traps, such as basket traps and dip nets and were not effective on the lower Skeena River, but were effective on tributary streams.  Coupland, Martindale and Marsden also write that while the most effective salmon fishing technique was the gill net, these nets were unknown or unused, pre-contact.  (Gary Coupland, Andrew Martindale, and Susan Marsden, “Does Resource Abundance Explain Local Group Rank Among the Coast Tsimshian” in Jerome C. Cybulski, ed., Perspectives on Northwest Coast Prehistory (Hull, Canadian Museum of Civilization, 2001)).

[243]        The preponderance of evidence suggests that Dr. Anderson is wrong in her statement that pre-contact Coast Tsimshian used gill nets for fishing, or that they fished in the main stream of the Skeena River.

C.  TYPES OF FISH

[244]        Archaeologist Francis Stewart, analyzes fish fauna dating from 5,000 years ago to the 18th century from archaeological remains on Digby Island in the Prince Rupert Harbour area.  Stewart determines that immature halibut was one of the species that was heavily fished by the pre-contact peoples and most other marine resources such as sculpen, flat fish, sea perch, rock fish, mussels, barnacles, rat fish, green lings, cabezon and shore crabs were obtained from the shallow water bordering the coast.  Fish such as eulachon and herring that lived in schools in open ocean water migrated to shallower waters to spawn, together where they were caught along with predators like dogfish, sharks, salmon, albacore and possibly cod.  (Frances L. Stewart, “The Seasonal Availability of Fish Species used by the Coast Tsimshians of Northern British Columbia (1975) 8 Syesis 375).

[245]        Stewart also concludes from fauna recovered from Digby Island that salmon were used by both pre-historic and historic coastal groups.

1.  Salmon

[246]        Dr. Anderson testifies that the Coast Tsimshian were heavily dependent on salmon as a staple storage food, a core economic resource.

[247]        Dr. Anderson relies on Garfield who, in her book, The Tsimshian and Their Neighbours, supra, states that salmon was the decisive food resource of most northwest coast tribes.  Coho, spring and sockeye furnished the bulk of dried fish for winter use, though humpback were also stored in quantity.

[248]        R.W. Nolan in his thesis on the pre-contact Coast Tsimshian use of Fish Resources, finds that the ethnographic descriptions do not agree with the salmon types reported on the Skeena River.  For example, Boas states that spring salmon (or Chinook) was a major species caught by the Coast Tsimshian in the winter.  Chinook was a variety of salmon that could be caught in spring, but they were not the most important fish harvested by pre-contact Coast Tsimshian.  Furthermore, Garfield claims that the most important salmon species for the Tsimshian was coho followed by sockeye and pink.  Nolan finds that Garfield confused spring salmon with coho.  (R. W. Nolan, The Utilization of Fish Resources by the Coast Tsimshian: Predicting Optimal Patterns of Exploitation (M.A. Thesis, Trent University, 1977)).

[249]        McDonald states that originally salmon seemed to have been plentiful on the Skeena.  Not only were the salmon runs large on the Skeena (judging from early escapement figures) but their four-year cycles are not synchronized across the species, so that cyclical patterns of scarcity did not occur.  These are points noted by the early fishery officers who remarked in 1889 that there had not been a salmon shortage on the Skeena since 1863, and that the scarcity that had occurred then had been avoided through trade. (James McDonald, Trying to Make a Life: The Historical Political Economy of Kitsumkalum (PhD Thesis, University of British Columbia, 1985)).

2.  Eulachon

[250]        Garfield writes that eulachon, a variety of candlefish with high oil content, was second in importance among the basic seafood resources.  Eulachon runs began in late February and continued as late as May.  It was especially welcome because it came early in the spring when dried food stores were low and fresh food was scarce.  All the Tsimshian fished for eulachon at the mouth of the Nass where they were joined by Haida and Tlingit fishermen and traders.  (Viola Garfield, “The Tsimshian and Their Neighbours” in Viola Garfield, Dr. Marius Barbeau and Paul S. Wingert, eds., “The Tsimshian: their Arts and Music” (New York: Publications of the American Ethnological Society, 1956)).

[251]        Dr. Lovisek states that the ethnographic record shows that not all of the Coast Tsimshian went to fish eulachon, as some fished for halibut or hunted deer and birds, and others remained in the winter village.  Beynon described how some Tsimshian would go to the Nass River for eulachon and grease, while others went for herring eggs.

3.  Halibut

[252]        There was some controversy about how much halibut was fished by the pre-contact Coast Tsimshian.  Dr. Lovisek maintains that the Coast Tsimshian only fished in shallow waters and would not have had access to the large, deep sea halibut.  She relies on archaeologist Francis Stewart who has determined from the type of fish bones found at the archaeological site on Digby Island in the Prince Rupert Harbour area that the halibut was consumed by the occupants of the shallow water, immature variety; however, in spring the adult halibut would be moving into shallower waters and would be easier to capture.  (Frances Stewart, The Seasonal Availability of Fish Species used by the Coast Tsimshians in Northern British Columbia, supra).

[253]        Dr. Anderson disagrees that the Coast Tsimshian only fished in shallow waters.  She reported that deep sea fishing off Dundas, Porcher and Bank Islands was another important activity where cod and halibut were caught by the Coast Tsimshian.

4.  Herring

[254]        Dr. Anderson says not only eulachon, but also herring were caught and dried and rendered into oil.  Herring spawn in late winter and appear in highest density in early spring along the coast. They lay their eggs in the inter-tidal area which adhere to seaweeds, rock or other supports that are generally abundant along the coast.  Dr. Lovisek said there was no archaeological data recovered from the boardwalk site to indicate herring bones, but she agreed that the pre-contact Coast Tsimshian relied on herring as a food resource.

5.  Other Resources

[255]        Dr. Anderson says that shellfish and seaweed were collected by the women as important barter and food items.  Minor resources such as shoots, roots, crab apples, barnacles, tritons and barks were also eaten.

6.  Processing and Preserving

[256]        Martindale writes that prior to contact, collection, processing and storage of food resources was the most significant activity and most common means by which economic surpluses in excess of annual subsistence were produced.  The settlement pattern of this period maximized Tsimshian ability to intensify production of subsistence goods.  (Andrew Martindale, “A Hunter-Gatherer Paramount Chiefdom Tsimshian Developments Through the Contact Period” in R. G. Matson, Gary Coupland and Quentin Mackie, eds., Emerging from the Mist: Studies in Northwest Coast Culture History (Vancouver, UBC Press, 2003) 188).

[257]        Dr. Anderson opines that because salmon was the most important resource for the Coast Tsimshian they developed a means to harvest, dry, store and transport it.  Staple foods were consumed when fresh but when game and fish were unavailable and necessary for feasting and trade, they fell back on dried foods.

[258]        Dr. Lovisek agrees that salmon was important not only because of its abundance but also because of its storability, and that spawning salmon which could easily be preserved for winter food was integral to the distinctive culture of the Tsimshian.

[259]        Garfield in “The Tsimshian and their Neighbours”, supra, describes in detail the Tsimshian storage of food.  Goods were kept in boxes underground.  Dried foods were stored on shelves suspended from the beams and rafters, or hung in bundles from the beams.  When the whites came into the area new ideas and styles in House interiors developed.  Tsimshian families also built smoke houses and camp cabins at each fishing and hunting site.  Preserved foods were stored in cabins or smoke houses until the family returned to the winter town or until needed.  As with all Garfield writings, there is some question about whether this took place pre-contact or not.

D.  FISHING RIGHTS/LAWS

[260]        Dr. Anderson opines that pre-contact, each House Group owned a territory from which resources were harvested.  Property rights over fish were generally vested in ten basic corporate groups or extended families.  Accepting food and gifts of wealth at a feast signalled acceptance of ownership.  It was customary for a House Group to grant permission to someone outside the House Group to collect food on the understanding that they would be repaid in kind.

[261]        Dr. Anderson relies on secondary sources, Niblack and Pinkerton, who seem to agree that the kinship base or extended family group held the property rights to fishing, and permission had to be obtained and sometimes paid for by non-members.  However, Niblack and Pinkerton are very general in their descriptions, almost treating the aboriginal population from Alaska to California as one group, without distinction.  (Albert Niblack, The Coast Indians of Southern Alaska and Northern British Columbia, supra; Evelyn Pinkerton, “Indians in the Fishing Industry” in Patricia Marchak, Neil Guppy and John McMullan, eds., Uncommon Property:  The Fishing and Fish Processing Industries in British Columbia (Toronto:  Methuen, 1987)).

[262]        Dr. Anderson also relies on Beynon’s Columbia manuscripts in support of her propositions, but I note that the excerpts she has chosen refer to seals, mountain goats, cranberries and crab apples, not fish.

[263]        Beynon’s observations about fishing rights and laws from his Ethnical Geography, Vol.1:5 are more relevant.  He wrote:

Each tribe have their own village sites and each individual group in the tribe, House Groups, have their individual hunting, berry, sea lion rocks and salmon rights.  For other food gathering such as eulachon, herring spawn, seaweed, clams, all other shellfish, halibut fishing, there were many tribal camps used in common by each tribe.

(William Beynon, Ethnical and Geographical Study of The Tsimshian Tribes, volume 1 [unpublished, archived at the Smithsonian]).

[264]        Dr. Anderson reports that ownership of resource territories was proved through crests and feasting and that it was all interrelated.  Guest chiefs received food from the Claimed Territories, which were enumerated as food was served.  Accepting the food and the gifts of wealth at a feast signalled acceptance of the fact of ownership.  Dr. Anderson also relies on the way in which totem poles signified territorial and resource possession, according to Garfield.  However, Dr. Anderson admits that there is controversy amongst the authorities as to whether totem poles existed in Coast Tsimshian pre-contact society, or whether they are a form of expression which arose post-contact.

[265]        Dr. Lovisek concludes that both offshore and onshore marine resource harvesting locations were subject to ownership and rights of access by a House Group.  She refers to anthropologists Donald and Mitchell who say that throughout the northwest coast, resource locations and any apparatus constructed for resource extraction were owned, and in virtually all cases, were held by the few rather than the many.  Ownership did not extend to the resource itself.

[266]        For example, Mitchell and Donald are careful to state that it was the right to fish for eulachon at a particular portion of the fishing grounds that vested in a House Group.  Rights to fish for eulachon, for example, did not extend to other rights to resources like salmon; however, certain other rights came with the rights to take eulachon, like the right to put up a dwelling for the duration of the fishery, and the right to collect firewood for the processing of oil or drying fish, and for domestic purposes.  (Donald Mitchell and Leland Donald, “Sharing Resources on the North Pacific Coast of North America:  The Case of the Eulachon Fishery” (2001) 1 Anthropological 19).

E.  CONSERVATION

[267]        Dr. Anderson insists that there existed aboriginal practices for conservation of fish.  She relies on Pinkerton, supra and others whose list of conservation practices include limiting quantities, timing and in-season closures.  Dr. Anderson says preservation of Fish Resources was not so much intentional conservation as a consequence of ceremonial life and limitations arising from fishing methods.  For example, salmon was usually only captured after entering the spawning territory or the river systems.

[268]        Dr. Lovisek writes that the Coast Tsimshian idea of conservation was to attract marine resources by conjuring, ritual cleansing and other ritual observances.  They believed that the proper respect and ritual actions would lead to the future abundance of species.  This was an important function of the lineage leader or Shaman.  The most intensive ritual observances concerned the salmon and eulachon which were collectively harvested and processed.

[269]        For salmon to return the next year, the Coast Tsimshian believed that salmon flesh had to be consumed within a year and the bones burned.  “First eulachon rites” were practiced by the Coast Tsimshian.  There were taboos concerning the eulachon and a specific practice for making eulachon oil in the exact and appropriate way.

[270]        On-shore marine resources were managed more closely by House Group owners because spawning salmon, eulachon and herring required intensive preparation, harvesting and storage.  Off-shore resources like halibut were primarily taken from shallow waters and required less direct management.

[271]        All production capabilities of significant schooling marine resources, like salmon and eulachon, were limited not exclusively by the abundance of the species, but by the capability to preserve these species.

[272]        Dr. Anderson says these management practices tie in with trade because when fishing a scarce resource such as salmon became too hard, the Coast Tsimshian would resort to trading for salmon with other things such as halibut, carved items and meat.  Therefore, she maintains, there was trade in salmon even between two groups who had access to it (see section IX. Trade in Fish).

VIII.  TRADE IN GENERAL

[273]        The plaintiffs submit that trade in a variety of products, especially Fish Resources, was an integral part of the distinctive Coast Tsimshian pre-contact culture.  They submit that the abundance of Fish Resources in their Claimed Territories enabled their predecessors to build a surplus in food products over and above what they needed for their own sustenance, and that they traded this surplus for wealth goods to enhance their prestige and rank which was a core element of their social organization.

[274]        The defendant submits that any exchange of goods amongst the Coast Tsimshian, or between the Coast Tsimshian and other groups, was for sustenance, or incidental only, and not integral to their society.  The defendant admits that late pre-contact Coast Tsimshian society produced a subsistence surplus, but submits it was only used for survival during winter months and to allow House Groups to participate in the prestige economy of ceremonial exchange.  There was no form of market trade in Fish Resources and Products that could be transmuted to a modern commercial fishing right, except perhaps with respect to eulachon.

[275]        I think it is necessary to separate trading activities by the Coast Tsimshian in other goods from trading specifically in Fish Resources and Products.  The specific activity relied upon by the plaintiffs to support their aboriginal right is trading in Fish Resources and Products on a scale akin to commercial.  Thus, even though trade by the pre-contact Coast Tsimshian of slaves, or coppers, or other luxury products might have been an integral part of their culture, this trade alone would not be sufficient to prove an aboriginal right to commercial fishing.  Similarly, I think it is important to consider the activities of harvesting and producing Fish Resources separately from trading Fish Resources.  The activity of harvesting and processing Fish Resources and Products might be an integral part of the plaintiffs’ culture, but would not on their own support a right to fish for commercial purposes.

[276]        Dr. Anderson describes Tsimshian trade as having lasted hundreds, even thousands of years, being extensive and far flung, and including trade of sea food and other goods.  She says that trade continued well after the establishment of settlers in Tsimshian territory.

[277]        Dr. Anderson refers to Dean’s thesis ‘Rich Men’, ‘Big Powers’ and Wastelands (supra) wherein he states that the arrival of the Euro-American traders did not regulate the movement of prestige goods along the coast.  Dean, however, also says that most ethnographic material is mute on the nature of pre-contact Coast Tsimshian trade which had already been shaken by the maritime traders, followed by the HBC and Russian American Company, well before the arrival of Frans Boas on the coast.

[278]        Dr. Anderson concedes that the ethnographic literature is almost silent on the more mundane aspects of economic production and trade; however, she says that “oral history” and “traders’ records” document that there was extensive trade among the Tsimshian as well as between Tsimshian and other ethnic groups.  In the conclusion to her report, she makes a surprising reference to the “great magnitude of the documentation of widespread and large scale trade” in the Primary Source Compilation.  She provides no footnotes, however, and my review of her Primary Source Compilation suggests that she is grossly exaggerating.  I discuss Dr. Anderson’s Primary Source Compilation in more detail in section IX. Trade in Fish.

[279]        Dr. Lovisek confirms that from the documents she has seen, the ethnographic examples of exchange and trade were all post-contact.

[280]        The practice of trade is integral to the economy of a society.  Dr. Langdon states that Coast Tsimshian society operated in a coherent and orderly manner without a coercive centralized power of state so a question arises concerning how the economy, including trade and other things, was conducted and regularized among the autonomous tribal groups.  To assist in answering this question, it is helpful to consider economic anthropology, surplus production, standard units of exchange, specialization, wealth goods, trade routes and post-contact trade.

A.  ECONOMIC ANTHROPOLOGY

[281]        Dr. Langdon has expertise in economic anthropology.  He explains that economic anthropology is a sub-discipline of cultural anthropology.  It concerns the practices and concepts through which human populations provide food, clothing, and shelter for existence as well as a wide variety of culturally defined material and services.  The manner in which trade is practised is integral to the economy of a society.

[282]        Dr. Langdon refers to Karl Polyani, one of the first economic historians to explore distinctions in human systems of exchange.  In his publication, “The Economy as Instituted Process” in K. Polyani, C. Arensberg, and H. Pearson, eds., Trade and Markets in the Early Empires: Economics in History and Theory (New York: Free Press, 1957) 243 he asserts four principles of exchange:

a.         Reciprocal exchange or instantaneous equivalent transactions;

b.         Redistributive exchange production flowing to a central authority who makes decisions about allocation and redirects to various peoples or groups;

c.         Market exchange following the principles of supply and demand provisioning through a price mechanism; and

d.         Autarchy which is a mode of non-exchange.

[283]        Dr. Polyani’s theory was that each society had one of the above as a dominant feature which could not be effectively understood as a distinct set of practices or activities divorced from the social and cultural context.  Applying Dr. Polyani’s theory to the case at bar, one could say that the specific type of exchange system of a defined group is integral to its distinctive society.

[284]        The question is which type of exchange system did the pre-contact Coast Tsimshian experience – a market economy or a kinship economy?

1.  Market Economy

[285]        In a capitalist society, goods and services are exchanged primarily through money.  Abstract markets of supply and demand set the prices, and allow for the potential of profit that can be converted into capital and invested.  In a market driven society, most things can be purchased and are therefore commodities.

[286]        The idea of “market” includes:

a.         market principle (some form of supply and demand of resources is in operation although the relation may be relatively weak);

b.         market places (specific locations where buyers and sellers bring their products or skills to exchange); and

c.         markets (fully integrated economic forms where transactions are made through money, and prices are a function of supply and demand).

[287]        Dr. Langdon states in his report that the Coast Tsimshian utilized the market principle above.  The amounts of food, materials or goods were produced with a view toward how they would be used in consumption or exchange.  He also says they participated in market places such as the gathering of the tribes at the Nass River.

[288]        On cross examination, he admitted that a potlatch, by which he said trade was conducted and regularized, is not a marketplace because there are no direct exchanges.  People are not bringing surplus production with the expectation of finding others with whom to exchange goods.  Distribution and sharing amongst the foraging community is not a marketplace because the notion of a marketplace involves populations from discrete communities coming together at a place to exchange goods that they do not have access to on a yearly basis.  Even feasts and reciprocating feasts, although a form of exchange, are not a marketplace.

[289]        There is no doubt that the pre-contact Coast Tsimshian economy was vastly different from today.  It is important to remember, however, that even the European economy in the 18th century was not nearly as sophisticated as it became after the industrial revolution of the 19th century.  Nevertheless, all the experts agree that the pre-contact Coast Tsimshian economy was not a western style capitalist one.  I am satisfied from the evidence that the pre-contact Coast Tsimshian economy cannot be described as a market economy.

2.  Kinship Economy

[290]        Dr. Lovisek describes the pre-contact Coast Tsimshian economy as a “kinship economy”.  She opines that pre-contact trade was personal and was negotiated between kin structured relations on a clan basis of familial relationships.  The production and distribution of material goods were organized by transactional principles distinctly different from market exchange.

[291]        Dr. Lovisek relies on Kalervo Oberg’s anthropological work involving North West Coast peoples and the subject of trade (Kalervo Oberg, The Social Economy of the Tlingit Indians (Seattle: University of Washington Press, 1973)).  Oberg distinguishes between “gift exchange” which takes place within a network of social relationships, and “barter” or “trade” in which individuals seek their own advantage to bargaining, without the benefit of a social relationship.  He concludes that barter did not exist among the Tlingit before European contact.

[292]        According to Frederica DeLaguna, another Tlingit expert, the economic motive for trade of the Tlingit was secondary since the items exchanged were luxury food stuffs and goods.  She implies that the primary motive was in the sheer pleasure of handling wealth, and visiting relatives in new areas.  She says that even as late as 1880, the Tlingit were in no way dependant upon European trade goods.  (Frederica DeLaguna, “Tlingit” in Wayne Shuttles, ed., Handbook of North American Indians, Volume 7, The Northwest Coast (Washington:  Smithsonian Institution, 1990)).

[293]        Dr. Anderson does not agree that the Coast Tsimshian economy was merely kinship based.  She says that the Tlingit may have been kinship based because they only had two clans, but the Coast Tsimshian had four which allowed them greater latitude to trade.  She also pointed out that the Tlingit did not barter among themselves, but they did trade for profit to other non-Tlingit Groups.

[294]        In the joint publication by Rita Smith Kipp and Edward M. Schortman, “The Political Impact of Trade in Chiefdoms” (1989) 91 American Anthropologist 370, the authors provide a practical explanation for the importance of kinship in pre-contact society.  It determined with whom one may exchange foods and gifts.  In the absence of specialized traders, luxury goods changed hands for personal and political reasons such as wedding gifts, funeral offerings, and other life crisis gifts between kin.  Reciprocal gift-giving also occurred between leaders, such as tokens of apology, invitation, treaty or alliance.  A kin-like or ethnic bond would have cushioned the delayed returns and perpetual imbalances of reciprocal exchanges between distant partners.  Kipp and Schortman also state that commercial market exchange would have posed structural problems because it would have disrupted the existing socio-political patterns.  These authors restrict the term “trade” to entrepreneurial behaviour, a form of exchange different from those entailed by personal obligation.

[295]        Dr. Lovisek also refers to Susana Narotzky, who described in her work New Directions in Economic Anthropology, (London and Chicago:  Pluto Press, 1997) generalized reciprocity as “goods that are entangled in the social fabric in such a way that they appear as extensions of personal obligations and never seem to acquire the autonomy necessary for establishing equivalences of value”.  Bonds are produced to establish a long lasting social relationship, and this is done through trading partners.  By extension, commercial exchange exists where there is no kinship relationship between the partners in the transaction, except for purely economic reasons.

[296]        In his report, Dr. Langdon does not agree that the Coast Tsimshian economy was wholly a kinship one.  He argues that describing it as such leaves out a number of practices and institutions through which the long distance trade of the Coast Tsimshian functioned.  Coast Tsimshian economy included slavery, appropriations through raiding, and certain rule driven distributions from Household producers to the elites, and from elites back to their kinsmen upon receipt of certain potlatch distributions.  Neither reciprocity, nor exchange, nor kinship economy, encompasses these elements of Coast Tsimshian economy.

[297]        However, in cross examination, Dr. Langdon admits that what he was talking about was in fact a kinship economy, with a feasting and potlatch distribution system.  In his report, Dr. Langdon refers to Richard Daly’s publication Our Box Was Full: an Ethnography for the Delgamuukw Plaintiffs, supra, wherein he uses the concept of kinship economy to describe the basic means by which production, distribution, exchange and use occurs amongst the Gitksan.  Dr. Langdon says two features of Daly’s analysis are also characteristic of the Coast Tsimshian economy: i) the limited ability to mobilize labour beyond the range of kinship; and ii) the facilitation by kinship mechanisms of the establishment of relations with distant groups from other ethnic backgrounds.

[298]        Garfield, in her 1939 publication, Tsimshian Clan and Society, Volume 7(3), supra, comments that her Coast Tsimshian sources made a point of telling her that there was little evidence of impoverishment in pre-contact Coast Tsimshian society, which might be taken as evidence that the institutions were regarded as “fair”.  They operated according to principles of a kinship economy which emphasized personal exchange as the primary, but not sole, means of accomplishing the movements of goods and services.

a)  Gift Exchange

[299]        Personal exchange, or “gift giving” as it is sometimes described, is at the heart of a kinship economy.

[300]        Dr. Anderson agrees on cross examination that trade is an exchange of goods between two parties other than gifts, or loans, or compensation.  Transfer of goods from one person to another, or one group to another, is simply an exchange.  She said there are at least a hundred types of economic transactions in the Tsimshian culture.  Barter is the mutual exchange of goods or services with no money changing hands.  Dr. Langdon explains that money wasn’t needed because one of money’s main attractions is durability for hoarding, which was culturally proscribed amongst the Tsimshian.

[301]        There is a continuum of pure gift at one end through to reciprocity at the other end.  Commercial transactions with a stranger are at the latter end of the spectrum.  Therefore, any evidence of exchange must be analyzed within the social context.

[302]        In his report, Dr. Langdon says Coast Tsimshian institutions of exchange and trade were elaborate, sophisticated and complex.  They used a wide array of gifts and trade or exchange mechanisms.

[303]        Christopher Gregory, Gifts and Commodities (London:  Academic Press, 1982) distinguishes between the giving of a gift, which requires personal ties, and establishing a continuing social link, from the selling of a commodity that results in the two parties being once more independent and free of obligation to each other.  Gifts may have multiple dimensions of value ranging from exchange, to historic, to symbolic, to sacred; commodities are items that gain their values mainly from their convertibility.  Commodities are considered to have had their origins on the margins or fringes of kinship economies where it is often socially easier to maximize one’s return than is the case among kin folk.

[304]        In Coast Tsimshian society there are different forms of gifting defined by social contact, such as peer gifts, obligatory gifts and personal loans.  It is these latter concepts of reciprocity and the necessity of fulfilling obligations that makes Coast Tsimshian economy more complex.  Food stuff, goods and other materials could even be acquired as loans that were typically brought forth by the staging of a small feast by a prospective chief.

[305]        Dr. Lovisek refers to a HBC Fort Simpson Post Journal of 1838 which says “the Indians in making presents and giving away things always do so with the understanding of some time or other getting an equivalent in return”.  She says this underscores an important understanding about the nature of exchange in Tsimshian and other North West Coast society.  Material goods or wealth become valuable by being given away: exchange in the form of gift giving was expected to be reciprocal.

b)  Trade Relationships

[306]        The second key element to a kinship economy is trade ties or relationships.

[307]        The plaintiffs submitted that trade amongst the pre-contact Coast Tsimshian and their neighbours was of sufficient development and importance that the Coast Tsimshian had established trade relationships and prerogatives, which were fomented and protected.

[308]        Dr. Anderson describes the relationships and partnerships as sometimes being exclusive monopolies where others paid tribute to join a trading party.  Access to some trade routes was controlled by limiting those who could pass through narrow river canyons, or move along the ancient grease trails that linked the communities of the region.

[309]        Dr. Lovisek states in her report that tributes or tolls related to trading along the Skeena River were post-contact.  Death from smallpox between trading partners would have disrupted established trade ties based on kinship ties.  Some villages or Houses would have been displaced, and others would have had to re-establish trade prerogatives.

[310]        Dr. Lovisek refers to Albert Niblack, U.S. Navy Surveyor of Alaska in the 1880’s, who states that in earlier days, previous to the advent of the whites, the trading was carried out less systematically and with formality on account of the feuds between the different tribes.  He acknowledges the shift in trading to the then present (1880) by stating that “the Indians of this whole region are expert traders”.  (“The Coast Indians of Southern Alaska and Northern British Columbia” in Annual Report of the U.S. National Museum for 1888 (Washington, 1890)).

[311]        Dr. Lovisek also notes that Frans Boas attributed the trading prerogative to clans, and not tribes, in his publication The Tsimshian Mythology (Washington, DC: Smithsonian Institution, 1916).  Finally, she notes that the references to trading prerogatives between kin in the Tsimshian narratives parallels that of the neighbouring Tlingit, who have been cited as trading partners of the Tsimshian.

[312]        Dr. MacDonald says it appears that every one of the nine Coast Tsimshian groups had major external trading partners.  He says that formal trade relationships had been reported for a number of groups, both within and between the Tsimshian-speaking divisions and the Haida and Tlingit; however, he does not cite any source for these statements.

[313]        Dr. MacDonald discusses the efforts dedicated to protecting trade routes and relationships.  He considers warfare and conflict to be the complement to the trading system.  He speaks about the archeological evidence of conflict dating back several thousand years which he infers related to the defence of resources for trade, and trading rights and relationships.

[314]        Dr. Lovisek points out that warfare not only interfered with trade, but with the acquisition of food provisions.  The examples of violence in the historical record demonstrated the fragility of trade between individuals and its potential to escalate into violence.

[315]        In my opinion, the evidence is overwhelming that the pre-contact Coast Tsimshian economy was indeed a form of kinship economy, as that term is used by the anthropologists.

B.  SURPLUS PRODUCTION

[316]        No one denies that the Coast Tsimshian were able to produce a surplus in food stuffs.  There is some disagreement whether that surplus took the form of Fish Resources or not, but that is discussed below.

[317]        Dr. Lovisek refers to Martindale who says that the late pre-contact Coast Tsimshian society was organized to produce a sufficient subsistence surplus to permit people to survive on stored food for five months of the year and to allow Households to produce sufficient excess food stuff to participate in the “prestige economy of ceremonial exchange”, that is, the feast and potlatch system.  After contact, these concerns remained, but a new way of participating in the prestige economy developed as a result of the fur trade.  In the late pre-contact period, trade in portable objects of highly valued material was characteristic of the pre-contact exchange system.

[318]        Dr. Lovisek says in her evidence in chief that Martindale identifies the surplus item as berries stored in eulachon grease, not salmon, but on cross examination she was taken to another passage which clarified that Martindale thinks there were surpluses in salmon as well.

[319]        From his Psacelay findings, Martindale speculates that by the end of the fall, the Households would have prepared to move back to their coastal villages and would have taken with them stores for the coming winter, such as dried salmon and venison, as well as berries and other plant food preserved in eulachon grease.  They would be shipping a supply of resources for trade, and for ceremonial exchange.  Berries and grease would have been prominent among these.  He said feasting was a primary exchange purpose of surplus production.

[320]        Dr. Anderson says that having reliable surpluses during periods of scarcity among neighbours was the foundation of Tsimshian influence.  A portion of production of the House Group (in direct correlation to status) was allocated to trade for goods that would sustain and enhance the standing of the group and ensure successful potlatches and feasts.  Dr. Anderson thought that the reference in the oral histories to the abundance and surplus of products indicated acceptance of the people by the spirits of the territory.

[321]        Dr. Langdon concludes that more than fifty percent of production went to the chief, but he was unable to support this statement.  It supposedly refers to a note made by Garfield, but the only reference he was able to produce spoke about one-half of production going to the chief for prestige purposes, not trade.

[322]        I am satisfied from the evidence that the pre-contact Coast Tsimshian managed to create surpluses of food products, including surpluses of Fish Resources and Products; however, as will be seen, the evidence indicates that such surpluses were primarily used for subsistence during the winter months.  The use of surpluses for trade appears to have occurred only incidentally, in rare times of famine.

C.  STANDARD UNITS OF EXCHANGE

[323]        Dr. Langdon explains in his report that in simple economies, objects are traded without standard rates or medium of exchange.  In more elaborate economies, both standard rates and mediums of exchange may occur, but multiple items may be involved in the exchange, and there is no single item such as money that can unify valuation and exchange.  Highly complex economies are integrated to an extremely high degree by markets, and money makes possible the exchange of objects necessary.

[324]        Dr. Langdon opines that the Coast Tsimshian economy did not operate with single purpose money, but through standardized transactions of a wide variety of products according to fixed rates.  True market integration was not present in the traditional, pre-contact Coast Tsimshian economy, but standard measures were developed for various materials, such as bundles of salmon, boxes for eulachon grease, herring eggs, seaweed, hemlock cakes and other foods.  In the elite sphere of exchange, standard measures were slaves, coppers, and marmot or groundhog skins.

[325]        Dr. Langdon admits that standard values are not inconsistent with a barter system.  People still negotiate for the best price.  He also admits that Garfield expected to find a standard fixed rate and discovered that rates might fluctuate according to the occasion.  He said one must distinguish a measure (bundles, boxes, baskets) from a rate (ten bundles, etc.).  Garfield finds standard mediums and standard measures, but not standard exchange rates.

[326]        There is disagreement in the ethnographic literature whether a standard or unified measure of goods existed pre-contact.  In Appendix 1, Exchange Values of Goods, located in Tsimshian Clan and Society, supra, Garfield says that before white contact most of the goods which changed hands in trade or as potlatch gifts were made by the natives or acquired from neighbouring tribes.  Everyone in the community was able to make or prepare most articles.  Even chiefs helped with the fishing and hunting.

[327]        Garfield also says that trade values of various commodities were very difficult to obtain.  Few of the natives knew even the approximate exchange values of goods previous to the introduction of European trade articles.  All insisted that values depended upon the relative status and ability of the traders to negotiate.  A chief expected to pay more for his purchases than commoners and also expected to receive more for what he sold.  Scarcity was also a factor in that the rarer the object, the more likely the higher perceived value.

[328]        Three informants gave Garfield information which she puts into a list of exchange values.  She warns that the list is not complete and includes articles of both native and European manufacture.  There is no doubt that this list was created with post-contact information.

[329]        I am satisfied from the evidence, or the lack thereof, that there were no standard exchange values in the pre-contact Coast Tsimshian exchange system.

D.  SPECIALIZATION

[330]        Dr. Langdon also refers to specialization as a key dimension indicating what an economy is able to accomplish.  Specialization means “the degree to which production of particular items is accomplished by separate, discrete units of production who therefore must exchange their products with other specialized producers in order to obtain the necessities of existence and the discretionaries of being”.

[331]        Dr. Anderson says that specialization is indicative of a trade economy rather than a subsistence one.  She refers to forms of Tsimshian specialization such as prestige hunting, raiders, and halait, ceremonial regalia for the halait, carvers, weavers and performers.  Prestige foods were ones that required skill or supernatural efficacy to obtain them, such as mountain goat or eulachon grease.

[332]        Dr. Langdon states that Coast Tsimshian society rests in an intermediate position with regard to the amount of specialization.  The production unit for most food stuffs was the Household of which the Chief was coordinator and manager.  There do not appear to have been any full time specialists, but there were individuals and groups known for their specialty products, some of which derived from the resource territories they controlled, some of which derived from their trading practices, and some of which derived from the technical or aesthetic skills the makers displayed.  This pattern has been termed “incipient specialization”.  Dr. Langdon admitted that even at the time of contact there was no evidence of full time specialization, only incipient specialization which refers to specific skills that are recognized.

[333]        Martindale writes that prior to contact there appeared to have been a level of regional economic specialization in which Households produced a surplus of specific resources to maintain and generate status by participating in ceremonial exchanges.  For example, Boas writes that the coastal groups produced containers and the interior groups produced food stuffs.  Local groups specialized in the production of economic surpluses including both manufactured goods and surplus subsistence production.  It is interesting to note that in Martindale’s tables it is only the Kitsumkalem, (who are not Coast Tsimshian), who provided dried salmon as a trade article.

[334]        Dr. Lovisek maintains that there is no indication that pre-contact Tsimshian society had professional traders, or that Tsimshian villages produced specialized goods for trade purposes.  She makes this statement despite references in the mythological literature attributed to Boas.  She relies on Garfield who rejected Boas’ depiction of various Tsimshian villages producing specialized goods and trading them.

[335]        On balance, there is insufficient evidence to enable me to conclude on a balance of probabilities that there was product specialization to any significant degree in pre-contact Coast Tsimshian society.

E.  WEALTH GOODS

[336]        As mentioned in section V. D. Wealth there is evidence of a variety of wealth or luxury goods that were exchanged amongst the Coast Tsimshian and their neighbours.  The most important of these pre-contact wealth goods were slaves, coppers and dentalium.

1.  Slaves

[337]        Dr. Langdon states in his report that slaves were sources of labour, wealth items for trade, and wealth items convertible at potlatch rituals to prestige for their owners.  They were usually traded for other highly valued or rare goods such as copper, caribou skins, marmot and groundhog furs, and special quality feasting objects such as spoons and bowls.  Also ocean going canoes or other more functional items could be procured by slaves.  The enormous importance of the slaves was to produce surpluses needed for the feasts and religious ceremonies that were held.

[338]        Dr. Langdon relies on Leland Donald’s article, The Slave Trade on the North West Coast of North America (1984) 6 Research in Economic Anthropology 121, but admits that Donald avoids absolutely affirming the pre-contact existence of slavery anywhere on the North West Coast due to a lack of clear evidence from archaeological, linguistic or explorer accounts.  Dr. Langdon says the presence and work of slaves is shown in the stories and adaawx recorded by Beynon and Tate.

[339]        In his article, Donald criticizes both ethnographic data because of its poor time controls, and archaeology because it doesn’t offer many clues about trade of any kind, including the slave trade.  The most he can say about the pre-contact slave trade is that there are almost certainly some transactions in slaves usually involving short distance contact between neighbours.  Although the slave trade was most certainly important before contact, Donald says its early 19th century scale in both numbers and distance is probably a by-product of opportunities created by contact.

[340]        The other important thing to note about the slave trade is that slaves weren’t exchanged for food but rather for other prestige goods.

[341]        Albert Niblack describes slaves as the most important expression of wealth in the 1840’s.  He states that the Tsimshian were the principals in this slave trade to the northern Tlingit and Carrier in exchange for furs.  Slave labour enabled the accumulation of a larger surplus which led to more extensive exploitation, greater specialization and artistic development.  (“The Coast Indians of Southern Alaska and Northern British Columbia”, supra).

2.  Coppers

[342]        Dr. Langdon testifies that the primary role for coppers in pre-contact society was use in the potlatch, but he also testifies that coppers could be converted to a wide variety of materials including salmon and other food stuffs, although he cited no source for this statement.

[343]        Martindale confirms the existence of coppers pre-contact.  He writes that copper from native sources on the Copper River in Alaska had long been a highly prized resource.  Iron may have arrived from earlier exchanges with Russians or salvaged from wrecked ships.  Already formed tools were accepted, but metals were most valuable as sheets from which indigenous tool makers could craft their own style of tools.  Copper was especially valued for making crest images.  In return, the Tsimshian offered food and supplies, but the most significant trade resource was sea otter pelts.

[344]        Garfield also wrote that the use of copper was definitely pre-European on the North West Coast.  There is sufficient testimony of 18th century traders and explorers to establish the fact that the Tlingit, Haida and Nootka, with whom traders made their first contact, were thoroughly familiar with the metal, manufactured it and traded it widely.

3.  Dentalium

[345]        Dentalia are a shell fish found on the ocean bottom near the shore in waters off the West Coast of Vancouver Island.  They were highly valued and used for ornamentation, status marking and embellishment on ceremonial garments as far north as the Athabaskan speaking people.  Dr. Langdon maintains that they do not appear to have been used internally within Coast Tsimshian society for ornamental, spiritually or economic exchange purposes, but they were used in trade with the Tlingit and Haida to acquire copper.

[346]        Albert Niblack also noted that dentalia shell was valued: “Amongst the Coast Indians themselves … sea otter skin was the basis of exchange, although the shell currency seems to have had a relative value.  This latter lost its function when the Europeans began to import large quantities of shell later on”.  In “The Coast Indians of Southern Alaska & Northern British Columbia”, supra, Dr. Lovisek said this was probably referring to the maritime fur traders selling dentalia in the 1820’s.

4.  Other Trade Goods

[347]        Dr. Anderson lists other highly prized trade commodities such as sea mammals, mountain goat and eulachon grease.  Dr. Lovisek stated that copper plates, beaver skins, slaves, eulachon oil and elk skins were consistently represented in the ethnographic and historic records as constituting wealth for the Tsimshian.  She quoted from Albert Niblack, who wrote “The Tsimshian were the middle men and were, and are still, the great traders in oil and grease of which they prepare large quantities from the eulachon, sea blubber, deer and goat flesh”, (The Coast Indians of Southern Alaska and Northern British Columbia, supra).

[348]        Garfield writes of Tsimshian women bartering woven goods and preserved foods.

[349]        Dr. MacDonald lists trade goods as including eulachon and grease, halibut, seaweed, soapberries and carved horns, spoons and slaves.

[350]        As can be seen from the above lists, there is little mention of Fish resources and Products.  I discuss that subject in more detail in section IX. Trade in Fish.

F.  TRADE ROUTES

[351]        Martindale relies on archaeological evidence of early trade routes.  He writes that trade in portable objects of highly valued material was characteristic in the Era 5,000 to 1,500 B.P..  Late in the pre-contact period, trade included subsistence goods.  Rendered eulachon oil was most significant among these and the Tsimshian were at the center of its production and distribution.  The oil was highly valued as a preservative; perishable resources such as berries when soaked in grease would store throughout the year.  In return, the Tsimshian imported products of the interior such as moose hides, groundhog pelts and moose meat.  The indigenous exchange routes in the area were called “grease trails” which were mapped by Dr. MacDonald (George F. MacDonald, Kitwanga Fort Report (Hull: Canadian Museum of Civilization, 1989)).  Thus large scale pre-contact trade dealt mainly with exporting eulachon grease from the Nass estuary throughout the North West Coast.  The Tsimshian effected control over coast to interior trade in part by relocating their summer residences from resource producing zones in the tributary valleys to the Skeena River itself.

[352]        The evidence of the grease trails together with the rest of the evidence on eulachon establishes without a doubt that the pre-contact Coast Tsimshian were important traders in eulachon oil.

[353]        The evidence on wealth goods as a whole is a strong indicator that pre-contact Coast Tsimshian trade revolved around these types of goods and the prestige that they signified, as distinct from subsistence goods.

G.  POST-CONTACT TRADE

[354]        Martindale explains that there are three major economic themes of the contact period reflected in the adaawx.  First, the adaawx contain many stories describing how Tsimshian local group leaders adapted the economic potential offered by the Europeans to their own advantage.  Second, Tsimshian leadership was keen to maintain the social status quo so they restricted access to European traders to those in leadership roles.  Finally, the leadership of some local groups was able to gain considerable advantage in status and political power over their peers by applying the wealth derived from European trade to traditionally Tsimshian status mechanisms.  For example, the Gispaxlo’ots did not own many productive salmon fishing areas so part of their political status derived from the economic benefits of their fur trading arrangements with interior groups.  They held traditional and exclusive rights as the only lower Skeena Tsimshian group to trade with the upper Skeena Gitksan and Wet’suwet’en.

[355]        Martindale writes that the demand for sea otter pelts created a new industry amongst the Tsimshian.  Within a decade of 1785, the sea otter trade had become the primary forum for European contact with the aboriginals.

[356]        While the increasing role of trade permeated changes within the Tsimshian society in the early contact era, it is significant that the initial commodity fur trade was incorporated within the traditional indigenous trading spheres.  Pre-contact trade relationships, especially involving eulachon grease and hides, were founding principles upon which the European fur trade was built.

[357]        Martindale finds that during the contact period, local groups started to consolidate into single summer villages, rather than staying in their resource territories.  This suggests that the pre-contact small local groups had shifted away from habitation sites and their subsistence resource Claimed Territories during the contact period to occupy sites along the Skeena River.  The attraction was that the Skeena River had become a main artery of trade.  Martindale concludes “this means there was decrease in the significance of subsistence resources in favour of economic activity within the trade economy”.

[358]        Martindale emphasizes that in what he calls the proto-contact phase (1787 – 1850), the trade economy was increasing in importance but the subsistence economy had not yet been abandoned.

[359]        Archaeologist Paul Prince concludes that it was competition for trade between natives groups in the proto-contact period that contributed to increased warfare, population movement, amalgamation and increase in settlement of upper Skeena River Groups, particularly near trade routes.  Native trade may have brought iron across the Berring Straight as early as 1648 and these European goods reached the Skeena River at the beginning of the 18th Century.  Prince says it was the combination of population movement and amalgamation in the early 18th Century that brought the Coast Tsimshian together into ethnographically recognized groups called tribes.  This can be important because trading prerogatives always refer to tribes and not clans, and to tribal leaders, not lineage leaders.  This suggests that widespread trade amongst the nine tribes had a post-contact origin.  (“Protohistoric Settlement and Interaction on the Upper Skeena in Long Term Perspective” in M. Boyd, J.C. Erwin and M. Hendrikson, eds., The Entangled Past: Integrating History and Archaeology (Calgary: Archaeological Association of the University of Calgary, 1999)).

[360]        Prince’s archaeological findings for the upper Skeena River which indicate a shift to more sedentary occupation as a result of proto-contact European trade are independently supported by Martindale’s findings on the lower Skeena River.  Both archaeologists found a similar pattern and a similar rationale for the change, namely European trade.

[361]        According to Dr. MacDonald wars in the early 18th Century were organized for control of trade routes and historic trade in metals and improved weapons.  This general pattern of movement was related to groups pushing other groups to secure the trading trails that ultimately connected through to South East Alaska and the new wealth of Russian trade goods.  (“The Epic of Nekt:  The Archaeology of Metaphor” in Margaret Seguin, ed. The Tsimshian: Images of the Past, Views for the Present (Vancouver, UBC Press, 1984)).

[362]        Dr. Lovisek states that the Russians held a thirty year lead in the sea otter trade before Captain Cook arrived in 1778.  The records created by the maritime fur traders are the first primary source data to tell us which aboriginal activities had been carried on until then.  Dr. Lovisek maintains that the maritime fur traders had a commercial interest in the area and so reported on activities by Coast Tsimshian people.  They observed exchanges of eulachon amongst aboriginals, but nothing else.  So they bought large quantities of grease to trade for furs but they didn’t buy any other native products, except some dentalia.

[363]        The American maritime fur traders had gained a near monopoly on the fur trade by the late 1790’s.  In 1791, Captain Gray, an American coaster, discovered that the Haida traded with the mainland Tsimshian; however, by 1799, the American fur traders had intercepted this native trade and cut into, or cut off, the profits of the Haida.

[364]        By 1793, the maritimers were not only trading European and American trade goods to the Tsimshian, but also native produced goods to other native groups.  For example, the maritimers traded Tsimshian produced eulachon oil directly to the Haida.  In or before 1793, the traders also started to winter on the coast which contributed to the development of a new market for food stuffs from native people for things such as deer, duck, clams, geese, halibut, salmon, herring, berries and birds’ eggs.

[365]        In or about 1793, Captain Brown learned that there was an extensive inland river communicating with the sea to the northward that took three months to reach. He was told this was where the natives traded for whale oil, sea otter skins and other marine products.  Historians today believe he was referring to the Nass River.

[366]        When Captain Vancouver first met the Coast Tsimshian, they refused all presents, but tried to encourage Captain Vancouver to come to their village to trade sea otter skins which were apparently of very poor quality.

[367]        The 1790’s saw a merger of the Russian fur trading companies into the United American Company.  In 1795, the Russian American Company established a post at Yakutat Bay and in 1799, Csar Paul awarded an imperial monopoly to the Russian American Company.

[368]        In 1811, the New Hazard ship reported trading native produced goods between native villages including eulachon grease, canoes, elk skins, abalone shells, native foods and slaves.  In 1812 – 1813 vessels started to winter on the coast at Kitkatla.  There was little fur trading during the winter and the traders started to depend more on local food stuffs produced by the native people.

[369]        In 1812, Daniel Harmon of the North West Company visited the Babine Carrier at Babine Lake and was the first European on the headwaters of the Skeena River.  He found that the Carrier received goods from the Coast by way of barter from their neighbours, the Gitksan, who purchased them indirectly from white people.  The Gitksan actually bartered from coastal native middlemen as there are no known descriptions of maritime fur traders ascending the Skeena River.

[370]        HBC fur trader Peter Skene Ogden visited the Carrier in the 1820’s and found to his surprise that although the Carrier were perfect strangers to the site of Europeans, they possessed many articles “indicative of a commercial intercourse”.  In Traits of American-Indian Life and Character by a Fur Trader (London: Smith, Elder and Co., 1853), he concluded that:

… the river afforded a communication between the races and the Indians inhabiting the coast and its mouth known as the Tsimshian.  Through this channel a constant barter of furs in exchange for articles of European merchandise procured from the traders by the Tsimshian, upon a scale of magnificence of which the example cited must suffice.

[371]        By the 1820’s, the maritime fur trade was no longer strictly maritime because it was based more on land fur than marine species, although ships were still used to trade and transport.

[372]        The first recorded trip along the Skeena River by Europeans was documented by Donald Manson of the HBC in 1832.  If there were a well organised trade monopoly operating on the Skeena River at that time, he makes no note of it.

[373]        HBC fur trader and physician William F. Tolmie, reports in 1834 that the Bella Bella received dressed elk skins from the Tsimshian.  He also reported other transactions between the two nations involving elk skins, slaves and small quantities of powder, ball, paint, tobacco, et cetera, in other words, European goods (William F. Tolmie, The Journals of William Fraser Tolmie: Physician and Fur Trader (Vancouver:  Mitchell Press, 1963)).

[374]        McDonald says that the fur trade and contact with the European market led to the creation of new mercantile leaders, the concentration of wealth in their hands, consolidation of power of leaders, centralisation of tribes around Fort Simpson and the use of European trade as a factor in inter-tribal politics (“Images of the Nineteenth – Century Economy of the Tsimshian” in Margaret Seguin, ed.; The Tsimshian Images of the Past, Views for the Present (Vancouver, UBC Press, 1984) 40).

[375]        Historians like Dean who have examined the historical records in detail, doubt that the famous Gispaxlo’ots Chief Legaic trading monopoly existed prior to the historical period.  Legaic’s monopoly was not a complete shut down, but might have consisted of titular control.  Strangers from the interior continued to trade down the Skeena to Fort Simpson, and the Nass Valley continued as an important trade route.  Dean clarifies that this trade did not regulate the movement of prestige goods along the coast.  He distinguishes between a native trade in prestige goods from a native trade in European goods, although both could be traded at the same time.  Prestige goods lent importance in feasting or potlatches and these included marmot pelts, berries and moose skins, herring eggs, seaweed, grease, dried halibut and other foods.

[376]        Dr. Lovisek concludes that regardless of the time period identified by any of the scholars, the rise in importance of the legendary Tsimshian Chief Legaic and his trading abilities arose post-contact as a result of the introduction of the fur trade.  The Legaic name was taken up by a successor who took over the Skeena River route.

[377]        William Beynon describes how trading privileges were controlled by tribal chiefs which as a level of political organization did not develop until post-contact (“The Tsimshians of Metlakatla, Alaska” (1941) 43 American Anthropologist 83).

[378]        R.L. Olson describes trade before the Klondike gold rush as intermittent and involving an exchange of dried fish and eulachon oil for furs and dressed skins.  Olson states that the coming of the fur trade “stimulated this trade to a marked degree and at the same time brought about a change in the type of goods moving inland, European wares displacing fish and oil” (R.L. Olson, “Some Trading Customs of the Chilkat Tlingit” in Robert L. Lowie, ed., Essays in Anthropology Presented to A. L. Kroeber (Berkely, University of California Press, 1936) 211).

[379]        By the 1860’s, a number of independent schooners traded rum and later whiskey in exchange for furs from native people on the northern northwest coast.  Missionary William Duncan arrived at Fort Simpson in 1857 and was instrumental in the conversion of many Coast Tsimshian to Christianity and their exodus to the old winter village of Metlakatla.

[380]        Dr. Anderson has acknowledged that the highly structured world of the Tsimshian was ultimately radically transformed by the intrusion of Europeans and Euro-Canadians:

The chiefs who controlled the trade became wealthy, and the 19^th century was probably the zenith of opulence for the traditional Tsimshian.  Huge amounts of wealth entered the native economy from trade and a ready supply of iron tools permitted greater productivity among carvers; at the same time traditional established relationships of rank were destabilized by new aggregations which formed around the trading post, and staggering mortality rates owing to old world diseases such as smallpox, influenza and venereal disease, that swept through populations lacking immunity.  Competition for scarce furs led traders to supply firearms and alcohol to the Tsimshian and their neighbours, further complicating relationships.  (Margaret Seguin Anderson, “Introduction”, supra).

It is notable that Dr. Anderson made these comments without having information about the extensive maritime fur trade records.

[381]        Dr. Langdon was asked in cross examination whether he agreed that Coast Tsimshian society did not become involved in commercial trade of subsistence products until after contact.  He was fairly evasive in responding until he finally admitted to statements made in an article by R. Wurl and him, entitled Distribution and Exchange of Subsistence Resources in Alaska (Anchorage, Alaska:  University of Alaska Arctic Environmental Information and Data Center, 1981).  In this article he defines “subsistence economic system” as one which has production, whether from naturally occurring biological and other resources, or from domesticated resources primarily for personal or Household consumption.  Distribution is for the most part carried out through traditional non-commercial channels.  Consumption of the overwhelming majority of items produced takes place within the Household or the community.  Resources used are derived from local and regional areas in the vicinity of the community.  Production and distribution are not organized to obtain the greatest possible return given available labour and technology, but are organized for security and continued existence.  Then he says:

Taking these various factors into consideration most studies indicate a significant alteration in traditional subsistence distribution and exchange resulting from commercial exchange for subsistence products.

[382]        Later on in the article he says:

… there are a number of examples of group intensifying cultural traditions after becoming involved in commercial trade for subsistence products.

He admits that he would include the Coast Tsimshian within the societies to which he was referring.

[383]        Thus the evidence is overwhelming that the nature of trade by the Coast Tsimshian changed dramatically in form and scale as a result of the fur trade which permeated the beginning of European contact and influence.

IX.  TRADE IN FISH

[384]        At the heart of the plaintiffs’ claim is the aboriginal right to trade in fish.  As I stated earlier, to prove this right they must show more than that the pre-contact activities of harvesting and processing of Fish Resources and Products, or trading in luxury goods to obtain wealth and status, was an integral part of their distinctive culture.  They must show that the Fish Resources and Products that they harvested and processed were traded, and traded on a scale large enough to be considered akin to commercial.

[385]        The plaintiffs submit that there is strong evidence upon which to infer that substantial trade in Fish Resources was integral to Coast Tsimshian society.  They rely on evidence of the abundance of Fish Resources, and the surplus production, specialization and transportation technology that they say provided the Coast Tsimshian with the ability and means to engage in substantial trade in Fish Resources and Products.

[386]        The Supreme Court of Canada has recognized the need to make inferences about the existence and integrality of a pre-contact aboriginal practice when direct evidence is not available (R. v. Sappier).  It is trite law, however, that inferences can only be drawn from proven facts, otherwise they are mere speculation.  Furthermore, other equally reasonable inferences that can be drawn from the same proven facts may prevent the finder of fact from relying on an inference alone to reach a conclusion.

[387]        The plaintiffs rely on the opinions of Dr. MacDonald, Dr. Anderson and Dr. Langdon, all of whom conclude in their reports that the Coast Tsimshian were great traders in Fish Resources and Products.  On a closer analysis of these three opinions, however, it appears that the evidentiary basis for their conclusion is seriously lacking.

A.  DR. MACDONALD

[388]        Dr. MacDonald concludes that the pre-contact Coast Tsimshian had an extensive system of tribal trade which included large scale exchange in regionally available materials and processed food items.  He states that prior to contact, the Coast Tsimshian pursued an economic cycle in which they harvested their seasonal availability of anadromous fish, particularly salmon and eulachon, at their summer and fall villages on the rivers where they were most effectively caught and processed for delayed consumption or trade.

[389]        Dr. MacDonald writes that inter-tidal resources, especially in vertebrates, as well as salmon, halibut, herring and cod were very significant.  They contributed greatly to the processed food stuffs that were traded into the interior for a variety of other foods and raw materials.  He concludes that using advanced preservation techniques, Coast Tsimshian processed the fish runs on the two large rivers, and the coast in between, into exchange commodities that attracted trade exchange for hundreds of miles around the Prince Rupert Harbour.

[390]        Dr. MacDonald’s report contains very little specific data or references regarding actual trade in fish to support his conclusion.  The purpose of his report is to provide a general overview of Coast Tsimshian life pre-contact.  It is helpful as an introduction to the evidence led by the plaintiffs in the months that followed Dr. MacDonald’s testimony; however, Dr. MacDonald’s broad based conclusions are not able to withstand any close scrutiny.

[391]        For example, Dr. MacDonald lists a number of trade items in his report, including salmon and herring (and sea urchin).  When challenged on cross examination to provide the source for this list he agreed that it was based on the plate he co-authored for the Historical Atlas of Canada (George MacDonald, G. Coupland and D.J.W. Archer, “The Coast Tsimshian Ca. 1750” in C. Harris, ed., The Historical Atlas of Canada (Toronto:  University of Toronto Press, 1907) 32).  However, several items that Dr. MacDonald says in his report that were traded by the Coast Tsimshian are not included in the Historical Atlas, most importantly salmon, sea urchin and herring roe.  Furthermore, the list of trade items in the earlier drafts of his expert report do not contain reference to salmon or herring roe.  It was only in the final draft of his report that he added these two very important items.  As an excuse, he made an oblique reference to the adaawx containing mention of these.

[392]        As another example, Dr. MacDonald states that eulachon from the Nass were both dried and rendered into a congealed fish oil that was traded in large quantities to other tribes residing further south on the coast, up the Skeena and especially to the Haida.  He states that the grease trade followed established canoe routes and a network of interconnected “trading trails” into the interior.

[393]        On cross examination, Dr. MacDonald insisted that the trails were for the purposes of trading, not just transporting the grease for personal consumption, but he had to admit that archaeology could not distinguish between trade or transportation.  In particular, he had not researched the archaeological work from sites on the Nass valley to see what trade goods had come into the valley as part of the alleged reciprocity with the Coast Tsimshian.  Without such evidence, there is no way of divining the purpose of movement along the grease trails.

[394]        Further in his report Dr. MacDonald describes activities on the tidal flats, including preparation of clams for immediate consumption and processing the surplus for trade to inland communities who he says valued dried shell fish highly.  The reference that he relies on regarding this point is Frans Boas, quoting an earlier observer, R. C. Mayne in his work, Four Years in British Columbia and Vancouver Island (London: John Murray, 1862), who describes collecting, boiling and drying clams on strips of bark or reeds and putting them away for winter storage.  There is no reference by Boas or Mayne to trading them.

[395]        Dr. MacDonald states that if the shell fish were destined for trade to other communities, they were threaded onto thin split cedar sticks that were smoked until dry.  The sticks of dried shell fish were then platted using plain sticks into roughly square mats that could be fitted in layers into a storage box.  The boxes were of roughly uniform dimension so that the number of shell fish in the container could be taken for granted and not have to be examined and counted.

[396]        Dr. MacDonald relies on this theory of the development of standardized quantities to facilitate change with other tribes to support his conclusion that there was an extensive trade in shell fish to the interior.  He writes a whole description about the use of boxes and baskets, remnants of which are found at the Canadian Museum of Civilization.  He draws certain assumptions and inferences from them, but on cross examination it became very apparent he really couldn’t draw any conclusions about them.  He had not done a cluster analysis of the boxes in the museum and there was no archaeological evidence to support the proposition that baskets were traded to other areas, or that foreign baskets were found in Tsimshian sites.

[397]        His attempts at drawing parallels with containers used today failed miserably.  He maintains that the Tsimshian had standardized box sizes that could hold approximately five gallons of eulachon grease.  On cross examination he admitted that this was based on his personal observations of people trading goods forty years ago, not pre-contact.  He relies on Garfield but had to admit that she had not come across an informant who could provide her with reliable equivalencies.  In fact, she refers to the informant she interviewed in this regard, Matthew Johnston, as “an old fraud”.

[398]        In reference to herring, Dr. MacDonald says that herring roe was a “prime delicacy” and a significant trade item to the interior.  Firstly, herring roe is not included in Dr. MacDonald’s list in the Historical Atlas, supra, as a trade good that was traded to the interior.  Secondly, Dr. MacDonald admitted in cross examination that his statement was based upon reports from the Gitksan people and their comments directly to him that herring roe was one of the key features of their feast.  Dr. MacDonald is using a modern activity, of a different aboriginal group, to support what he describes as a pre-contact activity of the Coast Tsimshian.

[399]        Dr. MacDonald relies on the adaawx to support his report without any references to specific narratives or their reliability.  As shown below there is very little reference to trade in the adaawx, particularly with respect to trade in Fish Resources or Products.

B.  DR. ANDERSON

[400]        In essence, Dr. Anderson’s report is geared to rationalizing her key opinion that the Tsimshian engaged in extensive and far flung trade of large quantities of Fish Resources and Products long before contact with Europeans, and that this trade was integral to the distinctive features of Tsimshian culture, that it continued after contact, and that it can be observed in the present day in altered form.

[401]        In general, I did not find Dr. Anderson’s opinion to be adequately supported.  Her broad sweeping statements about trade do not distinguish between trade of wealth goods and trade of subsistence goods, nor do they distinguish between Fish Resources and Products and other goods.  She similarly fails to distinguish between evidence from the pre-contact, contact or post-contact periods.

[402]        For example, she barely touches upon how the advent of the fur trade impacted the economy of the Coast Tsimshian, which is the singlemost distinguishing feature between pre- and post-contact trade.  Much of the time she does not even distinguish among the Tsimshian Groups, which include the Nishga, Gitksan, Southern Tsimshian and Coast Tsimshian.

[403]        Most importantly, her Primary Source Compilation upon which she relies as the basis for her opinion contains little or no reference to trade in Fish Resources and Products.  Where such reference does appear, which is usually obliquely or through inference, she makes no attempt to analyze the reliability of the source, or the social context of the exchange or exchange relationship that is mentioned, or the time period to which it refers.

[404]        Dr. Anderson states in her report that it is widely known and accounted for throughout the scholarly, and even popular literature, that “for hundreds of years the Tsimshian had engaged in extensive and far flung trade of sea foods and other goods”.  Then she quotes from the Canadian Museum of Civilization website that speaks of “rare stones, pigments, medicinal substances, rare woods, furs, preserved meats, shell fish and berries … eulachon oil was the Tsimshian’s main trade commodity”.

[405]        On cross-examination, Dr. Anderson admitted that this website was not an academic source.  She agreed that the website did not provide foot notes or references so that the validity of any of the assertions could be checked.  She said that the website referred to preserved “meats” which in her view would include salmon; however, the very next primary source she relies on to support her opinion refers to deer and goat flesh, not fish (Albert Niblack, The Coast Indians of Southern Alaska and Northern British Columbia, supra).  Dr. Anderson also agreed that the website refers to Tsimshian generally and does not distinguish between Nishga, the Coast Tsimshian, the Kitkatla, the Gitgaat or the Gitksan.

[406]        Further on cross examination, Dr. Anderson stated that she relies on archaeologists Dr. MacDonald and Phillip Drucker; ethnographers Boas, Barbeau, Beynon and Garfield; and the oral historical evidence that includes Adaawx, malsk, tales and interviews of twentieth century Tsimshian.  Unfortunately, in her report, she does not identify the archaeological evidence, nor does she provide much in the way of footnotes to check her ethnographic sources.

[407]        Later in her report, she expresses a similar opinion that “the oral histories and traders’ records document extensive trade amongst the Tsimshian people and between the Tsimshian and other groups”.  She writes that sale of food (which she claims to be fish) was one of several mechanisms to circulate wealth and goods in the tribe.  Once again she does not adequately set out the specific supporting evidence for this conclusion.

[408]        Therefore, I am left to review and analyze Dr. Anderson’s fifteen volumes of so called “primary sources” in an attempt to find the evidentiary basis which she should have provided.  As I stated in section II. Evidentiary Issues, most of her Primary Source Compilation consisted of repetitive excerpts that did not reflect the context in which they were made.  I am grateful to all counsel for their painstaking isolation and charting of the bits and pieces of evidence that can be extricated from these volumes, and their helpful criticisms and comments.  I have endeavoured to summarize the results below.

1.  Texts

[409]        There are ten extracts from various written works of Garfield, of which only four refer to exchange of food stuffs.  The other extracts refer to informal exchanges and potlatches between tribes and villages, and with other groups, and trade in eulachon oil.

[410]        The first extract concerning fish is as follows:

The seasonal runs of salmon, herring and eulachon set the pattern for the yearly cycle of economic activities … each family had to store sufficient provisions to meet the demands of trading, feasting, pot latching, purchase of services and payments of debts in addition to its daily needs.

(Viola Garfield, “The Tsimshian and Their Neighbours”, supra).

[411]        The defendant submits that the above passage refers to post-contact activities because of a later reference in the same text to tribal chiefs and trading potatoes with the Haida, which are both post-contact developments.

[412]        The second extract concerning fish states:

The coastal people brought trade goods from Fort Simpson and preserved sea food which they bartered to the Babines for furs.

The entire passage clearly shows it refers to post-contact times:

The coastal people brought trade goods from Fort Simpson and preserved sea foods which they bartered to the Babines for furs.  It was probably as early as 1836 that Legaic, a tribal chief of Fort Simpson, undertook to monopolize Skeena River trade with the Coast, a monopoly which he maintained until about 1868.

(Viola Garfield, “The Tsimshian and Their Neighbours”, supra).

[413]        The third extract from The Tsimshian and Their Neighbours, supra, refers to women bartering woven goods and preserved or fresh foods that they collected, but it does not mention what kind of foods.  The fourth extract from Tsimshian Clan and Society, volume 7(3), supra, pertains to Garfield’s table of exchange values in which she mentions dried salmon.  As discussed earlier, however, Garfield herself warns that the list was not reliable.

[414]        The next series of excerpts is derived from the work of Albert Niblack, the US Navy Surveyor who visited the coast in the 1880’s and wrote a study of The Coast Indians of Southern Alaska and Northern British Columbia, supra. His comments about trade are all made in the context of eulachon grease, slaves or dentalia.

[415]        The next excerpt is from Frans Boas and refers to obtaining wealth by selling “provisions”, without specifying what kind of provisions.  In the part that Dr. Anderson expressly deletes from the excerpt, Boas writes:

It seems that the ordinary road to wealth was through success in sea hunting or in land hunting.

There is no reference to fishing and the suggestion is that the “provisions” were sea or land mammals, such as sea otters and mountain goats.  (Frans Boas, “Description of the Tsimshian” in Tsimshian Mythology (Washington, DC:  Smithsonian Institution, 1916)).

2.  Oral Histories

[416]        Dr. Anderson states that she included in her Primary Source Compilation all the excerpts from the Tsimshian Narratives that referred to trade in Fish Resources.  I found that in general, they do not refer at all to trade in Fish Resources.  Some refer to trade in other goods; some refer to mythological gifts of fish, but not to trade.  Some contain no context or clue whether they are talking about Coast Tsimshian or some other aboriginal peoples.

[417]        As I have stated, I have read the entirety of Dr. Anderson’s Primary Source Compilation, including the oral narrative extracts.  The following is a summary of the twenty-nine narratives which Dr. Anderson says support her opinion.

[418]        Eleven out of twenty-nine of the narratives refer to trade, either expressly or impliedly, but not in Fish Resources and Products.  Gamlugides is a Nishga narrative wherein a mythical wolf helps a young man obtain deer, moose and bear.  The Myth of the Crest Guxlha is about a mythical stranger that causes a tree to break into pieces thereby allowing a boy to sell firewood.  In the Crests of the Royal Gispewudwada of Temlaham, a stranger who is welcomed into a home when the people of Temlaham are starving, kills many grizzlies and black bears until the House is full of meat and the owner becomes wealthy.  The Myth of the Crest Guxlha contains a brief reference to a House Group of sea otter hunters who got rich and became head representatives of their House Group.  The Myth of Crest Maxnogam is about a deserted boy who is given a supernatural club by ravens with which he is able to hunt sea lions, repulse the Haida, and give a feast upon the tribe’s return.

[419]        The Family History of Jonathon Johnson is a Gitksan narrative myth that refers to the Tsimshian trading with them, but contains no details as to what was traded or with which Tsimshian group.  The Beynon story of Gemk, a Ginaxangiik trader, describes trade in long canoes for blankets.  A trading expedition is mentioned in The Battle of the Tsimshian and Cape Mudge People, but there is no discussion of what was traded.  The Myth of the Prince Taken by the Salmon relates to the sale of eagle down.  The narrative of How Txagexs Overcame Legaic describes preparation for a Coast Tsimshian feast but no discussion of Food Resources and Products, only “valuable goods which they had gotten from the Haidas and the Tlingit”.  The Myth of the Shaman Who Tied up his Wrinkles does not mention the sale of Fish Resources and Products, only the sale of arrows.

[420]        The last narrative in Dr. Anderson’s collection, Why Red Cedar Now Grows on Queen Charlottes, is from a Haida and Kitkatla source and the only reference to trade is with respect to canoes.

[421]        The remaining eighteen narratives refer to food and some times fish, but not all of them are Coast Tsimshian stories and many contain elements of post-contact times.  For example, The Young Chief who Married his Cousins, is a Kitkatla narrative about a woman who received large quantities of food from a supernatural being, and her chief sells it to a number of starving aboriginal Groups.  The Last Raid of Legaic describes Legaic trading in foods of the salt water, but is obviously a post-contact narrative because it mentions an umbrella.  The Halait of Legaic mentions selling grease to villages and gathering salt water food, salmon, berries and meats for a feast, but it is unclear whether this relates to the Legaic of post-contact fame or not.  The Myth of Dasada and Haluos impliedly suggests trade of grease for copper, but there is no indication of the aboriginal identity of the traders.

[422]        There are two narratives, The Kitlan Location Along the Salt Water and The Story of the Founders of the Kilugan Tribe, which refer to selling fish, but their source is the Chief Kelly Manuscript whose authenticity is questionable, and to which I give no weight.

[423]        There is an extract of a myth in Duff’s notes that is similar to The Story of the Deserted Prince.  Both these stories deal with supernatural eagles who bring a deserted youth a lot of food resources while the tribe that deserted him starves.  He sells the food and becomes wealthy.

[424]        This theme of supernatural animals, or beings, assisting people to obtain food during a time of hunger is common to the Narratives of T’alamha’ax, Why the Tsimshian Know How to Make Fish Nets, Myths of the Princess Who Married the Sea Otter, the Myths of the Robin Woman, the Myth of the Blue Billed Duck Woman Who Married a Chief, and the Prince Who Gambled Off His Family.  In these myths, the food bestowed by the supernatural power expressly or impliedly includes Fish Resources that are sometimes sold to other groups who are suffering from a food shortage.

[425]        In summary, none of the authentic pre-contact Coast Tsimshian oral histories upon which Dr. Anderson relies deal with or refer to trading of Fish Resources and Products as a commercial type of enterprise.  Any exchanges that do take place are in the context of feasts, or distribution of plenty to those in need.

[426]        On this latter point, Dr. Anderson’s theory is that the Coast Tsimshian attained affluence because they were able to supply those who were more susceptible to fluctuations in salmon.  She maintains that the Coast Tsimshian had a more reliable resource base during periods of scarcity because of better technologies and richer territories.  If the salmon runs failed, the Coast Tsimshian could fall back on other sea resources and trade them for food.  Other less fortunate groups in the interior were forced to purchase their salmon or other Fish Resources from the Coast Tsimshian.

[427]        If Dr. Anderson’s theory were correct, I would expect to find more references in the oral histories and historic records to trading in fish, particularly salmon, since it was the most variable in quantity.  Yet the oral histories I have analyzed above only mention salmon in times of actual famine.

[428]        In my view it is reasonable to infer that salmon is not mentioned in the narratives because it was common to all, and usually in such abundance that it was not a sought after trade good.

[429]        On cross examination, Dr. Anderson admitted that McDonald had researched the ethno-historical records and the only evidence he found of a salmon shortage along the Skeena River was one excerpt from the1863 records of the Department of Fisheries.  (James Andrew McDonald, Trying to make a life: The Historical Political Economy of Kitsumkalum, supra).

[430]        Geoffrey Meggs, quoted by Dr. Anderson in her report, states “to the earliest explorers and fur traders, salmon seemed as common place and as easy to obtain as fresh water or clean air”.

[431]        Cybulski, in his work on the Prince Rupert Harbour area, observes that there is nothing in the way of stunted growth lines in the bones he dug up to indicate periods of famine.  (Jerome Cybulski, ed., Perspectives on Northern Northwest Coast Prehistory: Mercury Series Archaeological Survey of Canada Paper 160 (Hull:  Canadian Museum of Civilization, 2001)).

[432]        Dr. Anderson admitted that in most of the Tsimshian stories of famine the House group of the person who accumulated the surplus shared, not sold, food to their own lineage.  Feasts and potlatches were used to distribute the surplus.

[433]        There is no doubt that the Coast Tsimshian supplied the marine fur traders and the HBC with large quantities of fresh and processed Fish Resources in exchange for European goods and sometimes other aboriginal goods, such as grease.  The HBC depended on the Coast Tsimshian for fish and meat in relatively large volumes, although the demand for salmon was never sufficient for HBC to market it commercially.  (Alicja Muszynski, “Major Processors for 1940 and Early Labor Force: Historical Notes” in Patricia Marchak, Neil Guppy and John L. McMullan, eds., Uncommon Property (Toronto:  Methuen, 1987)).

[434]        The market and exchange system, however, created by the fur traders’ necessity for sustenance cannot be attributed to the indigenous society.  In my opinion, this is a prime example of an activity that came about “solely as a response to European influences” (R. v. Van der Peet, p. 562).

[435]        I have concluded that the Coast Tsimshian did trade in prestige goods, such as eulachon or mountain goat grease, before the arrival of the Europeans.  Dr. Anderson, however, makes no distinction between trade in subsistence goods and trade in luxury items.  In my view, this is a key flaw in her expert opinion.  I agree that trading in luxury, exotic, specialized goods such as coppers, slaves, dentalium or grease was integral to potlatch exchange, wealth, rank, etc. and therefore can be said to be integral to the distinctive Coast Tsimshian society.  However, the little evidence of trade in subsistence goods such as Fish Resources and Products indicates that with respect to these items, such trade that did exist was only occasional and for survival, not commercial purposes.

[436]        I am aware of Justice Bastarache’s comment in R. v. Sappier that a survival activity is usually not (although sometimes can be) a distinctive element of a society.  I do not think that selling food during occasional periods of famine fits within the definition of “integral to a distinctive society”.

C.  DR. LANGDON

[437]        Dr. Langdon’s opinion echoes that of Dr. Anderson:

The evidence indicates that trade in fish, fish products and sea food items was likely an important component of export trade for Coast Tsimshian ancestors for hundreds if not thousands of years prior to contact.

[438]        In his conclusion, he states that trade and exchange practices among the Coast Tsimshian approach the threshold of commerce.  According to him the most important trade items were food stuffs including salmon, eulachon, halibut, herring, cod and fish products.  A wide variety of foods, raw materials and finished products that were obtained through trade provided for food sales in times of shortage, the enhancement of nutrition and medicine, and the quality of life.  His final statement is that “trade and trade in fish products was essential to the functioning of Coast Tsimshian society and without it the fundamental and integral character of the society would have been different”.

[439]        The weaknesses in Dr. Langdon’s opinion are similar to the weaknesses in Dr. Anderson’s report.  Although, unlike Dr. Anderson, Dr. Langdon distinguishes between trade in subsistence resources and trade in wealth goods, he attempts to establish that the trade in wealth was the direct result or consequence of trade in food.  Put another way, he tries to create an inseparable connection between trade in wealth goods and trade in foodstuffs to bolster his opinion that trade in Fish Resources and Products was an integral part of the Coast Tsimshian pre-contact distinctive culture.

[440]        I do not find Dr. Langdon’s opinions to be borne out by the evidence upon which he relied.  In some cases the evidence directly contradicted his opinions.

[441]        For example, in his report, he discusses the five species of Pacific salmon and describes the variety of biological characteristics belonging to each.  He says that these variables led to differential distribution and abundance of different species in various streams in the Coast Tsimshian area.  He says that all anthropologists agree that salmon was the primary food stuff on which the pre-contact people depended.  Given this, he maintains that it was highly likely that Coast Tsimshian groups exchanged among themselves salmon from different species in order to increase the variety of taste and textures that would be consumed during the winter.  Also, like Dr. Anderson, he believed that it was the abundance of resources in Coast Tsimshian territory that enabled the Coast Tsimshian to convert salmon into wealth in order to gain rank and prestige.

[442]        On cross examination, however, he had to admit that research has revealed that there is either no correlation, or a negative correlation, between the size of the group’s population and the average salmon return to the territories controlled by the group.  Nor is there any positive correlation between group social rank and the average salmon return to the territories controlled by the group.  For example, two of the highest ranking Coast Tsimshian tribes, the Gixpaxlo’ots and Ginakangeek, had the least productive salmon territories.  (G. Coupland, A.L. Martindale, and S. Marsden, “Does Resource Abundance Explain Local Group Rank Among the Coast Tsimshian”?, supra).

[443]        If Dr. Langdon is correct in his thesis that trade was conducted in the context of the ability to convert salmon into wealth goods, then the statistics should show that the more salmon traded, the wealthier were those groups with the most salmon.  He agreed in cross examination that this did not appear to be the case in fact, and finally admitted that salmon was not a “big determiner” in the trade for wealth.  This is in sharp contrast to the theme running throughout his report.

[444]        Another example of direct contradiction between one of Dr. Langdon’s sources and his opinion is when he makes the statement that:

A wide variety of salmon products was traded between the Coast Tsimshian tribes and likely on occasion with “foreign tribes” as well.  Of the “foreign tribes” by far the greatest range of fish, fish products and sea food items were traded with the Gitksan.

[445]        Following on his conclusion that the Coast Tsimshian traded fish with the Gitksan, Dr. Langdon draws an inference that:

In order to provision a Gitksan population of 3,000 with the fish and fish products and sea food items so that fish was a main stay of their diet, a very large number of Coast Tsimshian canoes filled with such products must have travelled up the Skeena River.

[446]        The implication here is that the Gitksan were dependant upon the Tsimshian for their supply of Fish and Fish Resources Products as the mainstay of their diets.

[447]        In cross examination it became very apparent that Dr. Langdon was wrong when he suggested that the Gitksan must have got all their salmon and fish products from the Coast Tsimshian.  It is clear that Fishing Zone C, which includes Babine Lake and the Skeena Valley, are within Gitksan claimed territory.  Zone C has historically been a major centre of salmon production for North Western British Columbia and parts of south east Alaska.  Specifically, major salmon fishing sites are located in this Zone, where the rivers are either sufficiently constricted to concentrate the fish or at least to allow the placement of weirs and traps.

[448]        Part of Zone C encompasses all the present day Gitksan Wet’suwet’en villages.  It also appears that all five species of salmon run in this area.  Enough sockeye were taken traditionally by the Gitksan to feed the immediate residential group throughout the winter, and to provide for the elderly and all those unable to catch fish for themselves.

[449]        On cross examination, Dr. Langdon had to agree that the Gitksan had their own healthy supply of salmon so there was no need for any trade in salmon coming up from the coast.  He finally conceded that trade in salmon between the Coast Tsimshian and Gitksan would seem to be rare.

[450]        Even the publication upon which Dr. Langdon relies to support his proposition, Bookbuilders of ‘Ksan, Gathering What the Great Nature Provided: Food Traditions of the Gitksan, supra, which is a 20th century collection of Gitksan interviews, states that:

Fish was the basic item among the foods we smoked and stored.  Our abundant rivers and lakes kept us well supplied. [emphasis added]

[451]        Another example of direct contradiction between Dr. Langdon’s conclusions and his source material is his suggestion that the Coast Tsimshian traded with the Haida and Gitksan to import, among other things, sea otter teeth and mountain goat horn.  On cross-examination he admitted that both sea otter and mountain goat were present in Coast Tsimshian territory and hunted by the Coast Tsimshian.  The availability of these resources in Coast Tsimshian territory makes it unlikely that they were a source of “extensive trade” with outside aboriginal groups.

[452]        Dr. Langdon relies on four oral histories to support his conclusions.  Three out of four are supposedly adaawx; however, they are not true adaawx, as shown by William Beynon who refers to them as “stories”.  The first story, “Origin of The Salmon Net”, is taken from John Cove’s Shattered Images: Dialogues and Meditations of Tsimshian Narratives (Ottawa:  Carlton University Press, 1987) and the statement upon which Dr. Langdon relies is that “other villages purchase food from them when future shortages occur”.  He states that this narrative establishes that the pattern of trade was “recurring and ongoing as shortages were perceived to be likely into the future and not rare or unique events”.  However, on cross-examination he admitted that some of the ethnographic literature offers solutions other than trade to situations of starvation.  For example, an extract from Boas, 1916 states that during a famine the rich people would leave the poor; and widows, old people and orphans would die of hunger.  Another example is that if one lineage had poor salmon runs, other lineages in the village with better runs would participate in gift exchanges between the different halaits in the Household.

[453]        Dr. Langdon admitted that the solution to the starvation mentioned within the story was the shamanic power that taught them to make salmon nets.  He admitted that the story does not speak directly to the issue of trade at all, but rather to the use of the shamanic halait to generate the surplus of salmon.  It is interesting to note that another story relied on by Dr. Langdon, “The Shaman Women of the Ginandoiks Tribe”, also refers to the making of salmon nets as a solution to starvation.  This story was collected by Beynon in 1981, but Dr. Langdon relies on it to show that the abundance of salmon caught, processed and sold allowed the Ginandoiks to become wealthy through trading their salmon for other goods.

[454]        Dr. Langdon’s assertions are not supported by any evidence of regularly recurring shortages amongst the Coast Tsimshian.  As previously stated, Dr. MacDonald admitted there were no dramatic growth arrest lines showing starvation in the Prince Rupert Harbour.  Dr. Langdon admitted the Coast Tsimshian had access to more than one salmon stream and to a variety of resources that would have ameliorated their dependence on salmon.

[455]        The third story is the “Deserted Youth” recorded by Henry Tate and published by Ralph Maud.  The portion Dr. Langdon emphasises is “then on the next day, all different tribes were coming to buy some provisions”.  He draws the inference that the provisions sold to the other tribes was salmon.  He does not consider that the provisions may refer to the other resources brought by the eagles in the story, such as seals, sea lions and whales.  (Ralph Maud, ed., The Porcupine Hunter and Other Stories: The Original Tsimshian Texts of Henry W. Tate (Vancouver, Talonbooks, 1993)).

[456]        Tate writes in the Deserted Youth that the quantity of whale was so great that “a great many boxes were filled with their greases [sic] and all the waters’ surface are covered with grease” and “many Houses were full with whale blubbers [sic]”.  Maud, who edited the story, points out that the Tsimshian are not known for eating large quantities of whale meat.  He says that:

Tate loves to see a good man thrive and amass riches.  There was never so much blubber.  The heaping up that ends this story is that Tsimshian way of expressing ecstasy.  One should read the list of potlatch goods as pure poetry.  It is repeated by Tate simply for the enjoyment of hearing the music of success.

[457]        The differences in interpretation between Dr. Langdon and Ralph Maud demonstrate the danger in attempting to reach factual conclusions from mythical interpretation.

[458]        The final story, called “A Trading Story”, is about a powerful Coast Tsimshian chief who wanted to have his face painted on a cliff face at the mouth of the Nass River.  The story goes on to say how the great chief held a feast and brought in salmon of the Upper Skeena, herring eggs from the Haida, and other foods from all directions and strange countries because the great chief wanted to show all the tribes of the Tsimshian how far his influenced reached.

[459]        Dr. Langdon admits in a footnote to his report that the story actually concerns the exploits in the 19th century of the powerful Chief Legaic, but he says the underlying motivations, considerations, trade practices, valuations of goods and other features of the story are illustrative of core features and fundamental characteristics of trade in pre-contact Coast Tsimshian society.  He makes no attempt to analyze the Legaic exploits and monopoly which other anthropologists refer to as a prime example of a paramount chiefdom that was created solely by the European fur trade.

[460]        Finally, Dr. Langdon relies heavily on two sources which do not attract the weight he appears to give them.  One is Richard Daly in “Our Box Was Full”: An Ethnography for the Delgamuukw Plaintiffs, supra. This was an ethnographical description of the Gitksan Wet’suwet’en prepared for the plaintiffs in the trial of Delgamuukw v. British Columbia.  The second book is the Bookbuilder’s text previously mentioned.  The interviews contained therein were collected in 1970 by the Gitksan themselves, not an anthropologist.  There is no way of assessing the reliability of the sources, the time periods to which they refer, or even if there is any connection between them and the Coast Tsimshian.  Dr. Langdon never read any of the Gitksan oral histories himself and could not say how far back in time the Bookbuilder’s text could be considered valid.

D.  DR. LOVISEK

[461]        Dr. Lovisek’s opinion with respect to the pre-contact Coast Tsimshian trade in Fish Resources and Products is that it did not exist outside of the context of eulachon and the potlatch.  She states that in the reported instances of “trade or barter” of marine resources between the Coast Tsimshian and other native peoples, the context is within its use value as food, gift, feast, tribute, or kinship based barter, facilitated through a trading partnership.

[462]        Dr. Lovisek does not restrict herself to the oral histories of the Coast Tsimshian, but has recourse to archaeological, ethnological and historical sources.  Her list of sources do not differ significantly from Dr. Anderson’s bibliography, but whereas Dr. Anderson only incorporates the historical documents by reference, Dr. Lovisek actually analyzes them in her report.  I accept that even though she finds next to no evidence of trading in Fish Resources and Products in the oral histories, if she were to have found evidence in the written historical record of the Coast Tsimshian trading salmon around the time of contact, she would have reached a different conclusion; however, she finds no such historical evidence of trading in salmon between aboriginal groups in her extensive research.  She finds that throughout the early maritime trade and land fur trade, the trade in salmon between the aboriginals and maritime fur traders was described as insignificant.  Salmon could be obtained for a mere trifle, principally leaf tobacco in small quantities.

[463]        Dr. Lovisek’s reasoning why there was no market for salmon was because most groups had access to salmon.  It was not a commodity for trade because it was considered sustenance.  It may have been traded for hospitality and used to distribute at feasts, but it did not play a role as a commodity.

1.  Archaeology

[464]        Dr. Lovisek explains that archaeological data cannot provide evidence that fish was traded.  Archaeological evidence can identify what types of species were used by occupants and it can provide dates for that use, but it cannot establish whether fish were exchanged or traded with other people.  One has to rely on ethnographic data or historical data to make or draw inferences about the exchange of fish.

[465]        She concedes that there is archaeological evidence of exchange between groups, and that exotic materials were exchanged between various groups during such functions as the potlatch and other kinship related activities.  She is concerned, however, about the use by archaeologists of the word “trade” without making a distinction between the type of exchange indicated.

2.  History

[466]        The HBC journals refer to the exchange of eulachon and some halibut, but only in single instances.  Dr. Lovisek notes that the historical documents do show some post-contact trade in marine products; however, the pre-contact Coast Tsimshian motivation to acquire wealth was different from what it became post-contact.  This is evidenced by the fact that pre-contact potlatches were not nearly as elaborate as the post-contact events.

[467]        The HBC records disclose that HBC employed fort hunters and fishers who would hunt or fish specifically for the trading post.  Dr. Lovisek agreed on cross-examination that there was a considerable amount of trade between the tribes at the Fort, including trade in marine resources, although it was not always consistent.  Duncan Finlayson, chief factor at Bella Bella wrote in 1836 that:

The resources and the way of living which the Fort Simpson affords are deer, halibut and salmon which however may be considered as precarious while our dependence is placed on the natives for providing them, as they entertain such hostile feelings towards one another that frequent and fatal disturbances arise which will prevent their fishing or hunting more than is barely sufficient for their daily subsistence.

[468]        Dr. Lovisek makes the point that the establishment of Fort Simpson favoured the emergence of a few prominent Coast Tsimshian leaders who came to act as middlemen in the trade between the HBC and various native groups.  For example, the Tsimshian traded eulachon oil to the Haida for potatoes.  The Tsimshian would then trade the potatoes to the HBC for rum.

[469]        McDonald compiled from HBC files for selected years items of food which were traded at Fort Simpson.  These included:  deer meat, salmon, halibut, grease, whale oil, potatoes, eggs, berries, cranberries, geese, ducks, smoked fish, porcupine, cod, crabs, seals, dry meat, swan, lynx meat flounders, and small fish.

[470]        Not all food provisions brought to the HBC trading post were produced by the Coast Tsimshian.  The coastal people brought trade goods and preserved sea foods from Fort Simpson which they bartered to the Babines for furs.  This barter in food stuffs was given over to the women after the land-based fur trade became more important than the production of surplus food stuffs.

3.  Ethnography

[471]        Contrary to the plaintiffs’ submission, Dr. Lovisek does review and analyze ethnographic descriptions of pre-contact life amongst the Coast Tsimshian.  The plaintiffs complain that she discards those descriptions that she cannot corroborate in the historical or archaeological record.  While it is true that it is not necessary to corroborate oral history evidence in order to attribute weight to it (Delgamuukw v. British Columbia), other forms of evidence will assist sometimes in identifying the time period about which the oral history speaks.  Dr. Lovisek quite rightly focuses her research on the period just prior to the proto-contact period which she describes as 1700 - 1750 and the contact period, which she dates as starting in 1787.

[472]        Dr. Lovisek says that while ethnographic material is critically important, she is concerned that arbitrarily applying ethnographic findings to the pre-contact period, especially without considering the impact of culture change, can lead to substantial errors in interpretation of what constitutes a pre-contact practice.

[473]        The plaintiffs endeavour to use Dr. Lovisek’s ethnographic sources to support their position.  They refer to the work of Kalervo Oberg, The Social Economy of the Tlinglit Indians (Seattle:  University of Washington Press, 1973).  In his work, Oberg distinguishes between the post-contact and pre-contact practices, but the plaintiffs seem to rely primarily on his post-contact observations.  Dr. Lovisek agrees with Oberg that there were kinship related exchanges through trading partnerships.  During the proto-contact there was evidence of a relationship between the interior peoples and Coast Tsimshian based on kinship exchange and exotic goods.  She acknowledges that the Tlinglit were customers of the Tsimshian for the eulachon oil trade.

[474]        Kenneth Dean Tollefson also writes about the Tlinglit.  He says that the Tlinglit developed the practice of converting local temporary surplus harvests into wealth goods through the development of a thriving trading enterprise which included networks of trading partners in the interior and along the coast, and included Tlinglit and non-Tlinglit.  He also said the custom of trading undoubtedly existed long before European contact; however, he does not refer to the Tsimshian people and appears to treat all groups from the Nass down to the Columbia River as one.  This lack of specificity makes it difficult to place much weight on his statements.

[475]        David Archer in his article A Heritage Overview Assessment of the Coast Tsimshian Territory in Relation to Proposed Development Projects (Victoria: Heritage Conservation Branch, 1983) makes references to a trading circle that included the Haida, Tlinglit and Coast Tsimshian.  He relies on Boas who states that the coastal tribes had always been great traders in dentalia, skins and slaves.  Boas doesn’t refer to fish.

[476]        Charles Bishop speaks of ancient coastal-interior relationships, but describes pre-contact trade as “inter and intra community exchanges in non-essential luxury goods involving a trading partner”.  He also doesn’t refer to fish.

[477]        Dean, in his thesis, refers to inter-tribal trade before and after incursion by the Europeans.  He states that the pre-contact trade of the Tsimshians was organized into a riverine and coasting trade.  He maintained that in the Haida-Tsimshian-Tlinglit sphere, there existed well developed commerce and socio-political relations beyond the mere elaboration of kinship ties; however, he also states that most ethnographic material is mute on the nature of the pre-contact coasting trade, which had already been influenced by the maritime traders followed by the Hudson’s Bay Company and Russian American Company well before the arrival of Frans Boas on the coast.  Dean also notices how the kinship system limited trade between unrelated peoples;

Relations with non-kin seemed to have fewer considerations of fair dealing in trade, and hostilities might escalate out of control, given the lack of organization of clan opposites and brothers-in-law to act as go betweens.

(Jonathan Dean, ‘Rich Men’, ‘Big Powers’ and Wastelands – the Tlingit – Tsimshian Border of the Northern Pacific Littoral, 1779 to 1867, supra).

[478]        Dean implies that trade with non-kin was a dangerous activity that could escalate into hostilities.  Dr. Lovisek opines that therefore, this type of trade was often unsustainable because it had little means of diplomatic control.

[479]        Dean ascribes to the “regional resource disparity” theme which he says clearly supports a pre-contact coastal trade.  Dr. Lovisek points out that the bulk of what Dean relies on to support this statement comes from the Tsimshian Narratives.  I have analyzed the Narratives earlier on in this judgment.

[480]        Paul Prince, archaeologist, refers to an extensive network of trade between the coast and interior along the Skeena and its tributaries.  In the 1810’s and 1820’s, the Gitksan occupied a middleman position in this trade.  This situation may have been in existence pre-contact.  Upon closer review, it is obvious that Prince is talking about the exchange of eulachon oil, dentalium, European goods and furs, but not fish.  (Settlement, Trade and Social Ranking at Kitwanga, B.C. (PhD thesis, McMaster, 1998)).

[481]        Finally, Dale Croes in his article “Northwest Coast Wet-Site Artifacts: A key to Understanding Resource Procurement, Storage, Management and Exchange” in R.G. Matson, Gary Coupland and Quentin Mackie, eds., Emerging from the Mist:  Studies in Northwest Coast Culture History (Vancouver:  UBC Press, 2003) states that as complex societies emerged on the northwest coast, trade became a major form of economic interaction.  He notes that members of the nobility had to acquire, display and distribute large quantities of valuables through potlatching.  He draws a conclusion that some of this wealth acquisition had to be through long-distance trade; however, Croes does not mention the Tsimshian, nor trade in fish.  His comments are made with respect to the Tlinglit and Haida only.

[482]        In conclusion, Dr. Lovisek is not able to find data to support the proposition that trading in Fish Resources and Products on a scale akin to commercial was an integral part of the pre-contact Coast Tsimshian’s distinctive culture.  She does find evidence in the historical, archaeological and oral history data that the harvesting of selected marine resources like spawning salmon was integral to the distinctive culture of the Coast Tsimshian for food and ceremonial purposes; however, she states that:

the commercial use of marine resources was not integral to the distinctive culture of the Skeena River Peoples, [Coast Tsimshian] who instead valued marine resources for their food and ceremonial value and associative social and political importance related to the potlatch or feast.  The existence of property concepts associated with the ownership of access to certain marine resources like salmon and eulachon (although not all precontact groups had access to eulachon), the deposition of usufructuary rights to access marine resources, the use of marine resources for feasts and gifts, and the exclusion of most marine resources as “wealth” items which were exchanged, moderated against the importance of marine resources for commercial purposes.

[483]        Dr. Lovisek defines commercial as the exchange of large quantities of a marine resource to unrelated persons or persons outside a kinship network.  While I do not necessarily agree with her definition of commercial, I do not intend to debate it in this Judgment, because in my opinion the evidence of trade in Fish Resources and Products by the pre-contact Coast Tsimshian clearly shows it was not of “a scale akin to commercial”.

[484]        The only exception to this finding of fact is eulachon grease.  Dr. Lovisek states:

Often called a luxury good, it is debatable if it can be considered integral to the distinctive culture of the Skeena River Peoples, since not all precontact groups as identified in the archaeological record at Prince Rupert Harbour, had access to it.  While it was a desirable commodity for food and exchange, it was often described as a luxury and used by elites to obtain other wealth related goods.  Eulachon, which were preserved into grease, were not harvested or preserved from locations owned by the Skeena River Peoples, but from locations along the Nass River where they had usufructuary rights of access, along with many other native groups.

[485]        I do not agree with Dr. Lovisek that “it is debatable” that eulachon oil was integral to the distinctive culture of the Coast Tsimshian; it clearly was so.  I do agree, however, that it was harvested from locations along the Nass River where the Coast Tsimshian had usufructuary rights of access only, along withy many other aboriginal groups.

[486]        The absence of references to Fish Resources and Products in the ethnographic and historical sources, when contrasted with the importance of pre-contact Coast Tsimshian kinship, availability of food, and elaboration of the potlatch post-contact, carries significant weight.  In other words, the facts upon which the plaintiffs rely on to support the inference that there must have been plenty of trade in fish, should also have led to plenty of references to trade in fish in the historical and ethnographic sources.  The fact that there is a dearth of references in the historical and ethnographic sources leads to the equally reasonable inference that trade in subsistence goods was not a significant aspect of Coast Tsimshian pre-contact culture and not integral to their distinctive society.

[487]        In my opinion, simply put, the plaintiffs have not discharged their burden of proof on a balance of probabilities that they traded in Fish Resources and Fish Products on a sale akin to commercial, before 1793, the date of contact.

X.  CONCLUSION OF ABORIGINAL RIGHTS

[488]        In section I. B. General Legal Principles I set out the three basic steps to assessing a claim to an aboriginal right.  I have completed the first step by identifying the nature of the right claimed by the plaintiffs as their right to harvest and sell on a commercial scale the Fish Resources and Products in their Claimed Territories.

[489]        In the second step, I have considered how this claimed aboriginal right is predicated on proof of the alleged existence of an ancestral practice of trade by the Coast Tsimshian in Fish Resources and Products on a widely spread and large scale akin to commercial.

[490]        The claimed aboriginal right is further predicated on proof that the alleged large scale and widespread trade in Fish Resources and Products was integral to the Coast Tsimshian pre-contact distinctive society, and that this alleged ancestral practice has evolved and continued today in a modern form.

[491]        In my opinion, the plaintiffs have proved some, but not all of the elements necessary to prove their claimed aboriginal right.  They have proved that pre-contact Coast Tsimshian society was organized by way of four clans, numerous house groups and ten tribes.  They have proved that they have descended from these ten tribes, nine of which still exist today.

[492]        They have established generally that their predecessors fished and lived in the Prince Rupert Harbour area, on the coastal islands known as the Dundas Island Group, and along the mouth and some of the tributaries of the lower Skeena River.

[493]        In my opinion, the plaintiffs have not proved that their predecessors used and occupied fishing sites along the Skeena mainstream, Zimacord or Zymoetz Rivers.  Furthermore, I have found that they did not occupy, but were permitted limited use of fishing sites, along the Nass River and at Fishery Bay.

[494]        I find that the plaintiffs have proved that their predecessors harvested a wide variety of Fish Resources and Products through an array of fishing techniques.  They have proved that the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption, was an integral part of their distinctive culture.

[495]        In my opinion, the evidence establishes that the pre-contact Coast Tsimshian existed primarily within a subsistence economy until the arrival of the fur traders who influenced the creation of trade monopolies and chiefdoms.  Notwithstanding this fact, the plaintiffs have proved that their predecessors were involved in some form of loosely termed trade before the date of contact.  This trade involved primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium and eulachon grease.  I can not find, on the evidence before me, that trade in any other Fish Resource or Product beside eulachon grease could properly be described as integral to their distinctive culture.

[496]        In particular, I am of the view that the plaintiffs have failed on the second step to prove on a balance of probabilities that their predecessors conducted a trade in Fish Resources and Products, before contact with Europeans, that in any way was “a central and significant part of their society’s distinctive culture”, or in any way “made [their] society truly what it was” (R. v. Van der Peet).  I agree with the defendant’s submission that trading in all species of Fish Resources and Fish Products, besides eulachon grease, was low volume, opportunistic, irregular, for FSC purposes, and incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society.

[497]        The plaintiffs submit that at the very least, there is significant direct evidence that the Coast Tsimshian traded large amounts of eulachon and eulachon grease to other groups who did not have the same access to eulachon as they did.  They submit that this evidence should be enough to satisfy the second step of establishing an aboriginal right.  They rely on the principle espoused in R. v. Van der Peet and R. v. Sappier that the specificity of the right does not pertain to the species fished, but rather to the persons fishing, the area in which they fished and the purpose for which they fished.

[498]        I agree that an aboriginal right, once proven, is not limited in terms of species of the specific resource which formed the subject of the ancestral activity on which the aboriginal right is based.

[499]        However, the plaintiffs’ simplistic position that the 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.  The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.

[500]        Furthermore, eulachon were not harvested and preserved in Coast Tsimshian territory, but from locations where they, along with other aboriginal groups, received limited permission from the Nishga to fish.  The Plaintiffs cannot support a claim to fish commercially all species in their Claimed Territories on a pre-contact practice that was carried on outside of their Claimed Territories.  The Plaintiffs may be able to establish an aboriginal right to fish eulachon at the Nass for commercial purposes along with other First Nations, but this was not the issue before me, and I make no judgement in this regard

[501]        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.

[502]        As the plaintiffs have failed to satisfy the onus of proof on them in the second step, they have not proved an aboriginal right capable of protection under s. 35 of the Constitution Act.  There is no need to consider step three, the effect of existing fishing legislation, because there can be no infringement if there is no proven existing aboriginal right.

[503]        The plaintiff’s claim for a Declaration that they hold an aboriginal right to harvest and sell on a commercial scale all species of Fish Resources and Products in their Claimed Territories must be dismissed.

XI.  FIDUCIARY DUTY AND HONOUR OF THE CROWN

[504]        The plaintiffs claim as an alternative to the aboriginal right to harvest and sell Fish Resources and Products on a scale akin to commercial, that the defendant has trust like or fiduciary obligations to them to ensure they have commercial fishing opportunities sufficient to earn their livelihood and sustain their community.  The plaintiffs rely upon the relationship they say arose between the Crown and the plaintiffs after the Crown’s assertion of sovereignty over the plaintiffs and their Claimed Territories.

[505]        The plaintiffs submit that the trust relationship includes the obligations of management, allocation and use, and arises from the reserve process.  The plaintiffs say that the Crown was aware that fishing was their primary means of livelihood at or before the entry of British Columbia into Confederation.  Most reserves set aside for the plaintiffs had been customarily used by them for fishing, and were primarily suited for fishing and little else.  The Crown’s primary purpose in setting aside the reserves was to facilitate and encourage the plaintiffs’ reliance on commercial fishing.

[506]        The plaintiffs submit that other aspects of the fiduciary duty arise from the reasonable expectation that the Crown would act in the plaintiffs’ best interest, but that it has acted to their detriment by building a community that relied on commercial fishing, and then restricting their right to pursue that enterprise.

[507]        The defendant submits that this fiduciary duty alleged by the plaintiffs is not one that is known to law because:

a.         it does not pass the test of establishing a claimed, fixed, specific, cognizable aboriginal interest that can ground the fiduciary duty claim;

b.         it would conflict with the Crown’s public law administration of the Fisheries; and

c.         on the facts, there was no reliance on the Crown, and the Crown gave no undertaking which would give rise to a private law duty.

A.  FACTS

[508]        A review of the extensive historical record tendered by both parties establishes without a doubt that the plaintiffs did not agree to the Reserve process.  The historical documents are replete with complaints, pleas, supplications and threats from the plaintiffs’ predecessors.  The consistent theme running through these documents is that no treaty had been negotiated by the Tsimshian.  The Lax Kw’alaams continued to protest the unilateral allocation of reserves until 1927 when they were prohibited from doing so by Section 141 of the Indian Act, R.S.C. 1927, c. 98.  That ban stayed in place until 1952.

[509]        There is also no doubt that both the Provincial and Federal Governments were cognizant that the “Coast Indians … obtain all their necessities or desires required from the sea and its tributaries”.  (Report to Superintendent General of Indian Affairs, 1 October 1875, page 50).  In the process of reserve allocation, effort was made to “embrace all the fishing stations pointed out by the Indians” (correspondence to Superintendent General of Indian Affairs, 8 April 1882, page 91).

[510]        In 1882, Reserve Commissioner O’Reilly stated to Superintendent General of Indian Affairs MacDonald with respect to the Coast Tsimshian that:

… This tribe has been liberally dealt with, their main Reserve embraces one hundred and ten square miles, besides which every patch of land used for the purposes of cultivation, and every fishing station claimed by them had been set apart for their use….

[511]        The plaintiffs submit that in fact, the Tsimshian did not receive all the fishing sites they claimed, but the majority of the limited reserves set aside for the Lax Kw’alaams were established to enable fishing.

[512]        The plaintiffs submit that in reserving fishing stations to the Lax Kw’alaams, the Crown was preserving the opportunities to fish upon which the Tsimshian were to sustain their communities.  The plaintiffs submit that such opportunities include the right to sell fish on a commercial basis.

[513]        The plaintiffs submit that this is further re-enforced through the encouragement of the Tsimshian by the Crown to participate in the cannery industry as fishermen:

In common with all Coast Indians, the Tsimtseans [sic] depend largely for a living on fishing.  During the spring many of them go to the Nass for the oulachon fishing, and about June 1, commence to prepare for the salmon operations on the Skeena.  The men are good fishermen and the women earn good wages in the canneries; consequently they are much sought after and the demand for them is always in excess of the supply.  (Annual Report, Department of Indian Affairs, 1904, page 264).

[514]        However, when it came to issuing licenses independent of the canning industry, only white men were eligible.  This form of discrimination was expressed in a positive light as being “preferential treatment for Indians who were provided attached (cannery fishing) licenses”:

…The commission is of the opinion that a policy designed to secure preferential treatment of Indian fishermen in the allotment and operation of attached license having been adopted, the fisheries branch … should see that the intent of the department in this regard is fairly carried out, and that cannery men refusing to engage Indian fishermen should be required to show reasonable cause for so doing.  (final report of the MacKinnon McBride commission, 30 June 1916, pages 16-17).

[515]        The plaintiffs recitation of 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 special commercial rights over and above other fishermen.

[516]        Continuing correspondence on the issue between the Department of Marine and Fisheries and the Department of Indian Affairs culminated in a responding memorandum of June 7, 1898 from Secretary MacLean of Indian Affairs to E.S. Prince of the Department of Marine and Fisheries.  He acknowledges the position of the Department of Marine and Fisheries that because the common law and statutes entitle every subject to use such fishing privileges, Indian Affairs could not undertake to debar the public fishermen from exercising their legal rights; that the Indian Reserve Commission has no power to grant fishing rights; and that any allotment of fisheries was subject to ratification by the Department of Marine and Fisheries.  The plaintiffs expert historian, Richard Inglis, acknowledged that from 1881 onwards, the Department of Marine and Fisheries position that Indian Reserves could not, or should not include exclusive rights to fish, remained consistent throughout.

[517]        Furthermore, there is evidence that the Lax Kw’alaams were advised and well aware of this policy when Fisheries Inspector Anderson provided assurances to them that their fishing interests would be treated in common with those of white fishermen by the Crown:

The good effect of this visit, under the prudent assurances given to the Indians that their interests, in common with those of white fishermen, will be carefully watched, has been to me very apparent.  (Report of Fisheries Inspector Anderson to Superintendent of Indian Affairs Powell, 7 August 1879, page 134.

[518]        Therefore, from a factual perspective, the Crown gave no promise of commercial fishing rights, exclusively or at all, to the Coast Tsimshian, nor is it reasonable for the Coast Tsimshian to rely on the allotment of their reserves as granting them such a right.

B.  THE LAW

[519]        The decision of the Supreme Court of Canada in Wewaykum Indian Band v. Canada 2002 SCC 79, [2002] 4 S.C.R. 245 is helpful in defining the parameters of the relationship between the plaintiffs as an aboriginal group and the defendant as representative of the Crown.  Historically, the relationship was described as a “political trust” (St. Catherines Milling and Lumber Co. v. the Queen (1887), 13 S.C.R. 577; St. Ann’s Island Shooting and Fishing Club Ltd. v. the King, [1950] S.C.R. 211, [1950] 2 D.L.R. 225).

[520]        After Guerin v. the Queen, [1984] 2 S.C.R. 335, 59 B.C.L.R. 301 it was recognized that the concept of political trust was not the only form of legal relationship between aboriginal peoples and the Crown.  Most particularly, it was recognized that the existence of a public law duty did not exclude an undertaking by the Crown of obligations in the nature of a private law duty towards aboriginal people.

[521]        It is also important to note that in Ross River Dena Council Band v. Canada 2002 SCC 54, [2002] 2. S.C.R. 816 the court held that fiduciary remedies were not limited to Section 35 rights or existing reserves.  The fiduciary duty, where it exists, is called into existence to facilitate supervision of a high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples.

[522]        However, the Supreme Court of Canada in Wewaykum set clear limits to this fiduciary duty and emphasized at para. 81 that:

The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests.

[523]        Again at para. 83 that:

… Not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature (Lac Minerals, supra, at page 597), and that this principle applies to the relationship between the Crown and aboriginal peoples.  It is necessary, then, to focus on the particular obligational interest that is the subject matter of a particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient to ground a fiduciary obligation.

[524]        Therefore, the defendant is correct when it states that a fiduciary relationship between the Crown and an aboriginal group depends on the identification of a cognizable aboriginal interest, and the Crown’s undertaking of discretionary control in relation thereto in a way that invokes responsibility in the nature of a private law of duty.

[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.  Therefore, there is no cognizable aboriginal interest to which a Wewaykum type of fiduciary duty can attach.  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 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.

C.  HONOUR OF THE CROWN

[526]        It is not clear whether the plaintiffs were submitting that the honour of the Crown doctrine on which they rely was an adjunct of the fiduciary duty they claim the Crown owed them in this instance, or whether it was a separate ground which entitled them to access commercial fishing in priority to other users.  The plaintiffs’ submission refers to the decision of the Supreme Court of Canada in Haida Nation v. British Columbia 2004 SCC 73, [2004] 3 S.C.R. 511 wherein the court stated that the government’s duty to consult with aboriginal peoples and accommodate their interests was grounded in the principle of the honour of the Crown, which must be understood generously.  While asserted but unproven aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over aboriginal interests where claims affecting these interests are being seriously pursued in the process of Treaty negotiation and proof.

[527]        Haida Nation v. British Columbia was decided in the context of aboriginal rights and title, not some sort of general claim for relief.  The honour of the Crown that gave rise to a duty to consult did not arise in a vacuum; it was attached to the aboriginal rights and title claim of the Haida.

[528]        The root of the plaintiffs’ argument is that the Crown secured fishing stations for the Lax Kw’alaams and established fishing as the means by which the Lax Kw’alaams would sustain themselves in the new Canada.  Therefore, the plaintiffs submit, the Crown should be taken to have promised that it would not prevent the Lax Kw’alaams in that pursuit.

[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.

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

[531]        In my opinion, these alternative arguments of breach of fiduciary duty and honour of the Crown do not assist the plaintiffs in obtaining the relief they seek.  Their claim for a Declaration on this ground must be dismissed as well.

[532]        In conclusion, the plaintiffs have failed on the evidence, and the facts that I have found therefrom, to prove their entitlement to any of the Declarations of aboriginal rights, or fiduciary duty set out in their Amended Statement of Claim.  This part of the relief sought in the action as a whole is dismissed.

“The Honourable Madam Justice Satanove”

SUPREME COURT OF CANADA

BETWEEN:

Lax Kw’alaams Indian Band, represented by Chief Councillor

Garry Reece on his own behalf and on behalf of the members of the

Lax Kw’alaams Indian Band, and others

Appellants

and

Attorney General of Canada and Her Majesty The Queen in Right

of the Province of British Columbia

Respondents

- and -

Attorney General of Ontario, Metlakatla Band,

B.C. Wildlife Federation, B.C. Seafood Alliance, Gitxaala Nation,

represented by Chief Elmer Moody, on his own behalf and on behalf

of the  members of the Gitxaala Nation, and Te’Mexw Treaty Association

Interveners

CORAM: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.

NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

LAX KW’ALAAMS INDIAN BAND v. CANADA (A.G.)

Lax Kw’alaams Indian Band,

represented by Chief Councillor Garry Reece

on his own behalf and on behalf of the members

of the Lax Kw’alaams Indian Band,

and others                                                                                                        Appellants

v.

Attorney General of Canada and

Her Majesty The Queen in Right of the

Province of British Columbia                                                                     Respondents

and

Attorney General of Ontario,

Metlakatla Band, B.C. Wildlife Federation,

B.C. Seafood Alliance, Gitxaala Nation,

represented by Chief Elmer Moody,

on his own behalf and on behalf of the

members of the Gitxaala Nation, and

Te’Mexw Treaty Association                                                                       Interveners

Indexed as:  Lax Kw’alaams Indian Band v. Canada (Attorney General)

2011 SCC 56

File No.:  33581.

2011:  February 17; 2011:  November 10.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Aboriginal law — Aboriginal rights — Fishing — Nature of pre?contact practice — Evolution of pre?contact practice — First Nations claiming rights to commercial harvesting and sale of all species of fish within their traditional waters —Whether pre?contact trade in specific fish product could evolve into modern commercial fishery — Constitution Act, 1982, c. 35(1).

Civil procedure — Pleadings — Aboriginal rights litigation — Whether Aboriginal rights claim should be characterized based on pleadings or a broader enquiry — Whether claim for declaration of “lesser” rights was properly presented in pleadings

Aboriginal law — Fiduciary duty — Whether historical record supported existence of fiduciary duty to grant claimants right to modern commercial fishery.

This appeal involves the claim of the Lax Kw’alaams and other First Nations (“the Lax Kw’alaams”), whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena Rivers, to the commercial harvesting and sale of “all species of fish” within their traditional waters.  Such an Aboriginal fishery would be within the protection of s. 35(1) of the Constitution Act, 1982.  The basis of the pre?contact society’s culture and sustenance was the fishery.  It had a subsistence economy with some trade — primarily a gift exchange between kin at feasts and potlatches or the exchange of luxury goods.  The harvesting and consumption of salmon, halibut, herring spawn, seaweed, shellfish, and eulachon were integral to its distinctive culture, but trade in fish or fish products other than the grease derived from the smelt?like species called the eulachon or candle fish (because when dried it could be burned like a candle) was held not to be integral to the distinctive culture of the pre?contact society.  Eulachon grease was a preservative for perishable food stuffs such as berries, and much valued for that purpose.  Such other trade in fish or fish products as took place was described by the trial judge as “low volume, opportunistic, irregular, . . . and incidental to the fundamental pre?contact . . . kinship relations”.

The Lax Kw’alaams claimed not only the right to the commercial harvesting and sale of all species of fish within their traditional waters but asserted that the Crown has a fiduciary duty in that respect flowing from promises made in the reserve allocation process in the 1870s and 1880s.  Finally, towards the end of the trial, they claimed what they described as lesser Aboriginal rights, including a right to sufficient fish which, “when converted to money”, would enable them to “develop and maintain a prosperous economy”, and a right to a food, social and ceremonial fishery.

The trial judge was not persuaded that the pre?contact customs, practices, and traditions supported the claimed Aboriginal rights to commercial activities and dismissed the claims.  The Court of Appeal agreed and dismissed the appeal.

Held:  The appeal should be dismissed.

The practices, customs and traditions of the pre?contact society do not provide an evidentiary springboard to a constitutionally protected Aboriginal right to harvest and sell all varieties of fish in a modern commercial fishery.  The pre?contact society was not a trading people, except with respect to eulachon grease.  As the trial judge found, such sporadic trade as took place in other fish products was peripheral to the pre?contact society and did not define what made pre?contact society what it was.

The Lax Kw’alaams contend that the courts below erred in their approach to the characterization of the claim, and consequently failed to analyse comprehensively the evidence in its support.  In their view “before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre?contact practices and way of life of the claimant group”.  This is not correct.  When dealing with a s. 35(1) claim, the court should begin by characterizing the claimed Aboriginal right based on the pleadings.  Making findings about the pre?contact way of life of the claimant group before characterizing the claimed right — the “commission of inquiry” approach — is not suitable in civil litigation, even in Aboriginal cases, where procedural rules are generously interpreted to facilitate the resolution of the underlying controversies in the public interest.  Following that model would be illogical and contrary to authority, and would defy the relevant rules of civil procedure.  Although the necessary flexibility can be achieved within the ordinary rules of practice (including the amendment of pleadings), a defendant must be left in no doubt about precisely what is claimed.  Having characterized the claim, the court should determine whether the First Nation has proved the existence of the pre?contact practice, tradition or custom advanced in the pleadings and that this practice was integral to the distinctive pre?contact society.  Third, taking a generous though realistic approach, the court should determine whether the claimed modern right has a reasonable degree of continuity with the integral pre?contact practice.  Finally, if the claimed right is found to exist, it should be delineated with regard to conservation goals and other relevant objectives.

In this case, the attempt to build a modern commercial fishery on the narrow support of a limited ancestral trade in eulachon grease lacks sufficient continuity and proportionality.  While an Aboriginal right is subject to evolution both in terms of the subject matter and the method of its exercise, the claim in this case to a general commercial fishery would create a right qualitatively and quantitatively different from the pre?contact trade in eulachon grease.  Qualitatively, trade in fish and fish products other than eulachon grease was peripheral to the pre?contact society.  It is not enough to show that some element of trade was part of the pre?contact way of life if it was not distinctive or integral to that way of life.  A general commercial fishery would represent an outcome qualitatively different from the pre?contact activity on which it would ostensibly be based, and out of all proportion to its original importance to the pre?contact economy.  Quantitatively, the short eulachon season and the laborious extraction method was likely of limited value relative to the overall pre?contact fishing activity of the industrious and productive pre?contact people.

As to the claims to lesser rights, the conclusion that trade in fish apart from eulachon grease was not integral to the pre?contact society was as fatal to these claims as it was to the greater commercial claim.  Further, had the claim to lesser rights been justified, it bristled with difficulty.  The Crown was entitled to proper notice of what was being sought and to test the evidence directed to that issue, but the focus of the pleadings and evidence was on the claim to a commercial fishery, not the lesser rights.  It was not clear what the claim meant, how it would be implemented, what standard of prosperity was sought, or the basis on which it would be quantified.  All of these matters had far?reaching implications for fisheries management.

As to the claim to an Aboriginal right to a fishery for food, social and ceremonial purposes, the Lax Kw’alaams presently hold communal Aboriginal licences in these respects.  Their entitlement seems not to be contentious, and, as courts generally do not make declarations in the absence of a live controversy, it was within the trial judge’s discretion to refuse to make such a declaration.

The arguments based on fiduciary duty or the honour of the Crown necessarily fail in the absence of any substratum of relevant facts on which to base them.  The Crown had not made express or implied promises of any preferential access to the commercial fishery, and had made its intention to treat Aboriginal fishers in the same manner as other fishers clear.

Cases Cited

Distinguished: R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; R. v. Pamajewon, [1996] 2 S.C.R. 821; referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; R. v. Marshall, [1999] 3 S.C.R. 533; Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237, 19 B.C.L.R. (5th) 20; R. v. Marshall, [1999] 3 S.C.R. 456.

Statutes and Regulations Cited

Constitution Act, 1982, s. 35(1).

Supreme Court Civil Rules, B.C. Reg. 168/2009.

Authors Cited

Mitchell, Donald, and Leland Donald.  “Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery” (2001), 43Anthropologica 19.

APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Chiasson and Bennett JJ.A.), 2009 BCCA 593, 281 B.C.A.C. 88, 475 W.A.C. 88, 314 D.L.R. (4th) 385, [2010] 1 C.N.L.R. 278, [2009] B.C.J. No. 2556 (QL), 2009 CarswellBC 3479, affirming a decision of Satanove J., 2008 BCSC 447, [2008] 3 C.N.L.R. 158, [2008] B.C.J. No. 652 (QL), 2008 CarswellBC 735.  Appeal dismissed.

John R. Rich, F. Matthew Kirchner and Lisa C. Glowacki, for the appellants.

Cheryl J. Tobias, Q.C., Sharlene Telles?Langdon and James M. Mackenzie, for the respondent the Attorney General of Canada.

Patrick G. Foy, Q.C., for the respondent Her Majesty The Queen in Right of the Province of British Columbia.

Malliha Wilson and Michael E. Burke, for the intervener the Attorney General of Ontario.

Maria Morellato, Q.C., and Cheryl Sharvit, for the intervener the Metlakatla Band.

J. Keith Lowes, for the interveners the B.C. Wildlife Federation and the B.C. Seafood Alliance.

David M. Robbins and Jay Nelson, for the intervener the Gitxaala Nation.

Robert J. M. Janes and Sarah E. Sharp, for the intervener the Te’Mexw Treaty Association.

The judgment of the Court was delivered by

BINNIE J. —

[1]                              This appeal involves the claim of the Lax Kw’alaams First Nation and other First Nations listed in the Appendix to these reasons (herein collectively referred to as “Lax Kw’alaams”), whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena Rivers, to the commercial harvesting and sale of “all species of fish” within their traditional waters.  Such an Aboriginal fishery would be within the protection of s. 35(1) of the Constitution Act, 1982, subject only to such limits as can be justified under the test in R. v. Sparrow, [1990] 1 S.C.R. 1075.  The commercial fisheries claim was part of a larger action asserting Aboriginal title, but the Aboriginal title issue was severed and has yet to go to trial.

[2]                              The trial judge rejected the commercial fisheries claim on the basis that, despite a year of factual and expert evidence, she was not persuaded that the Coast Tsimshian people’s pre-contact customs, practices, and traditions supported such an Aboriginal right (2008 BCSC 447, [2008] 3 C.N.L.R. 158).  To the limited extent that the Coast Tsimshian traded in fish and fish products, such trade was specific to a product derived from a single species, the eulachon.  Trade in fish more generally was not integral to their distinctive society and thus did not provide a foundation for a s. 35(1) Aboriginal right to a modern wealth-generating “industrial” fishery.  This conclusion was upheld by the British Columbia Court of Appeal (2009 BCCA 593, 281 B.C.A.C. 88).  The Lax Kw’alaams say that the courts below erred in their approach to the characterization of the claim, and consequently failed to analyse comprehensively the evidence in its support.

[3]                              In the alternative, the Lax Kw’alaams argue that, quite apart from an Aboriginal right to harvest and sell fish on a full commercial scale, the evidentiary record establishes a variety of “lesser and included” Aboriginal rights, notably the right to a more limited commercial fishery (based in part on the traditional potlatch exchange) consisting of a right to harvest and sell fish and fish products sufficient “to sustain their communities, accumulate and generate wealth and maintain and develop their economy” (Second Amended Statement of Claim, at para. 31).  They seek, in the further alternative, a still more limited Aboriginal right to a food, social and ceremonial fishery.  The British Columbia Court of Appeal decided, having regard to the state of the pleadings and the way in which the 126-day trial had unfolded, that the trial judge’s decision not to deal with “ ‘lesser’ and ‘included’ rights” was a “judgment call” which she was entitled to make.  In the trial judge’s view, the trial from first to last had been about the right to a full-blown commercial fishery.  Everything else was peripheral and not fully presented.

[4]                              The Lax Kw’alaams also support their claims on the basis of alleged promises by government officials (thus implicating the Honour of the Crown) at the time of reserve creation in the 1880s.  This, too, was rejected by the trial judge on the basis that no such promises had ever been made.  Her finding of fact in this respect was also accepted by the British Columbia Court of Appeal.

[5]                              For the reasons that follow, I would uphold the conclusion of the Court of Appeal on all issues and dismiss the appeal.

I.   Overview

[6]                              The trial judge acknowledged that prior to contact with Europeans, the Coast Tsimshian largely sustained themselves by an extensive fishery.  They did not, however, engage in any significant trade in fish or fish products except for a grease derived from a smelt-like species called the eulachon or candle fish (because when dried it could be burned like a candle).  Such other trade in fish or fish products as took place was described by the trial judge as “low volume, opportunistic, irregular . . . incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society” (para. 496).

[7]                              Eulachon were harvested for a few weeks every spring at the Nass River.  The trial judge held:

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.  [para. 501]

A key issue in the case is therefore the question of continuity between the Coast Tsimshian people’s pre-contact practice of rendering eulachon grease and trading the product thereby generated, on the one hand, and, on the other hand, their claim to a contemporary commercial fishery of all species for sale to non-Aboriginal as well as Aboriginal members of the public.  The legal requirement for continuity between ancestral practices, customs and traditions and the modern claimed Aboriginal right incorporates, of course, an allowance for logical evolution within limits.  This case, in part, is about where such limits should be drawn.

[8]                              The Lax Kw’alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) of changing times.  However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right.  It was in part the lack of continuity and proportionality in the Lax Kw’alaams’ attempt to build a full-blown twenty-first century commercial fishery on the narrow support of an ancestral trade in eulachon grease that concerned the trial judge.  Her concern, in my view, was well founded.

[9]                              The trial judge held that the focus of the pleadings and evidence was on the Lax Kw’alaams’ claim to a commercial fishery.  Their later argument about “lesser and included rights” seems to have been borrowed hastily from criminal law and did not surface at trial in any significant way until the final argument.  The trial judge considered the defendant governments to have been prejudiced by what she saw as the Lax Kw’alaams’ belated attempt to recast the claim.

[10]                          The argument about “lesser and included” rights is more procedural than substantive in nature, although, as will be discussed, the basis of the trial judge’s rejection of the larger commercial right seems to me largely to dispose of the Lax Kw’alaams’ claim to a lesser commercial right as well.

[11]                          The courts (including this Court) have long urged the negotiation of Aboriginal and treaty claims.  If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings.  In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues.  Such potential advantages are dissipated, however, if the ordinary rules governing civil litigation, including the rules of pleading, are not respected.  It would not be in the public interest to permit a civil trial to lapse into a sort of free-ranging general inquiry into the practices and customs of pre-contact Aboriginal peoples from which, at the end of the day, the trial judge would be expected to put together a report on what Aboriginal rights might, if properly raised in the pleadings, have been established.

[12]                          At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel.  Litigation is invariably preceded by extensive historical research, disclosure, and negotiation.  If negotiations fail the rules of pleading and trial practice are well understood.  Tactical decisions are made on all sides.  It is true, of course, that Aboriginal law has as its fundamental objective the reconciliation of Canada’s Aboriginal and non-Aboriginal communities, and that the special relationship that exists between the Crown and Aboriginal peoples has no equivalent to the usual courtroom antagonism of warring commercial entities.  Nevertheless, Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well being of both.  The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders.

[13]                          As to the “honour of the Crown” and “fiduciary duties” branches of the Lax Kw’alaams’ claim, the trial judge held that no factual basis had been laid for such relief.  She held that there was no relevant unilateral promise by the Crown in the reserve allocation process or otherwise, let alone a treaty.  Accordingly, there was no conduct by the Crown by which the obligations claimed to exist could be generated.  The Honour of the Crown is a general principle that underlies all of the Crown’s dealings with Aboriginal peoples, but it cannot be used to call into existence undertakings that were never given.

[14]                          Finally, and somewhat belatedly, the Lax Kw’alaams brought to the forefront a claim to an Aboriginal right to a fishery for food, social and ceremonial purposes.  The Lax Kw’alaams presently hold federal fisheries licences for these purposes.  Their entitlement seems not to be a contentious issue.  It was therefore not an issue of significance in the present litigation.  Courts generally do not make declarations in relation to matters not in dispute between the parties to the litigation and it was certainly within the discretion of the trial judge to refuse to do so here.

II.   Facts

A.  Historical Background

[15]                          The Lax Kw’alaams First Nation consists of the descendants of an ancient “fishing people” comprising the several tribes or houses of the Coast Tsimshian.  In their traditional territories and fishing sites along the northwest coast of British Columbia salmon and other fish were in abundant supply.  The Coast Tsimshian were organized into a sophisticated society characterized by complex relationships based on “rank” and kinship.  Their “seasonal round” of activity was determined largely by the availability and location of salmon, halibut, herring spawn, seaweed, shellfish and the eulachon.  According to the trial judge, the salmon and eulachon

were revered in ritual, endowed with supernatural qualities in the halait, or adaawx, and formed the core of the subsistence economy.  All other Fish Resources pale by comparison.  [para. 225]

[16]                          The trial judge found that pre-contact (said to be around 1793) “the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption, was an integral part of their distinctive culture” (para. 494).  The Coast Tsimshian people had existed primarily “within a subsistence economy” although “some form of loosely termed trade” prior to contact had been shown (para. 495).  Such trade had involved “primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium [shellfish gathered from the ocean floor] and eulachon grease” (ibid).

[17]                          On appeal the eulachon became central to the claim for an Aboriginal right to a modern commercial fishery.  These fish were harvested for a few weeks in late winter (primarily, if not entirely, at locations along the Nass River) and were eaten fresh, smoked or dried for later use, or rendered into oil or grease by a process described as follows:

Eulachon were stored in pits dug into the ground or in big cedar plank bins for a little over a week.  They were then boiled in large wood vats — sometimes dugout canoes were pressed into service — and the freed oil was skimmed from the surface for storage in wooden boxes or the bulbs and long hollow stems of kelp.  When cooled to around 10ºC the oil firms to a butterlike consistency and does not liquefy again until the temperature has been raised to about 21ºC.

(Court of Appeal reasons, at para. 1, citing D. Mitchell and L. Donald, “Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery” (2001), 43 Anthropologica 19, at p. 21.)

The grease thus produced was exchanged between kin at feasts and potlatches along with other “luxury goods” (Court of Appeal reasons, at para. 2).  Eulachon grease was a preservative for perishable food stuffs such as berries, and much valued for that purpose.

[18]                          Almost a century later, in the 1880s, the Lax Kw’alaams were allotted reserves and fishing stations within their traditional territories.  They allege that quite apart from their claims to s. 35(1) Aboriginal rights, various government officials at that time made promises about access to the commercial fishery that implicate the honour of the Crown giving rise to the Crown’s trust-like or fiduciary duty to ensure that the Lax Kw’alaams have access to the commercial fishery.  At issue is the significance to be attached to the “explanations” given to the Coast Tsimshian by Commissioner Peter O’Reilly, who began setting apart reserves on the Northwest Coast in 1881, as follows:

I carefully explained to the Nass and Tsimpsean Indians, that in assigning them the several stations on the coast and tidal waters, no exclusive right of fishing was conveyed, but that they would, like their white brethren, be subject in every respect to the laws and regulations set forth in the Fishery Acts of the Dominion.  [Emphasis in original.]

(P. O’Reilly, Indian Resource Commissioner to Superintendent-General of Indian Affairs, 8 April 1882.  Copy in Annual Report of the Department of Indian Affairs for 1882 (1883), 88, at p. 91.)

[19]                          At all relevant times the Lax Kw’alaams held a communal Aboriginal license from the federal Department of Fisheries and Oceans to harvest fish for food, social, and ceremonial purposes.

B.   The Pleadings

[20]                          As the state of the pleadings plays an important role in the outcome of this appeal, it is important to set out the essential details.  In their Second Amended Statement of Claim, the Lax Kw’alaams asserted, at para. 28, that each of the ancestral coastal Tsimshian tribes was “a distinctive aboriginal society engaged in a sophisticated economy based predominantly on the harvesting, managing, processing, consuming and trading of all species of fish, shellfish and aquatic plants … that were available … from time to time within their Tribal Territories”.  Paragraphs 30-31 pleaded:

The harvesting, managing, processing, consuming and trading of Fisheries Resources were central features of each Tribe’s economy and were customs, practices or traditions that were integral to the distinctive aboriginal culture of each Tribe at and before Contact. . . .

The Lax Kw’alaams Band, or, in the alternative, each Allied Tsimshian Tribe, holds existing aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for consumption and sale to sustain their communities, accumulate and generate wealth and maintain and develop their economy. [Emphasis added.]

[21]                          In response to a request by the Attorney General of Canada for particulars as to what was meant by this pleading, counsel for the Lax Kw’alaams stated that “they have an aboriginal right or aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for their own consumption or to sell to others in order to acquire money, goods or services to sustain the Lax Kw’alaams communities economically, to generate economic growth in those communities, and to allow persons in the community to accumulate and generate wealth” (para. 27(b) (emphasis added)).  These particulars did not, I think, add much specificity to the pleadings, but the issue was not pursued by the Crown.

[22]                          It was further asserted that the accumulation of wealth in the Coast Tsimshian society had depended on trade, and that fisheries resources were the essential trade item by which tribes and house groups acquired wealth.  The “accumulation and redistribution of wealth to acquire or retain a high rank” within Tsimshian society were said in the claim to be integral features of their distinctive Aboriginal culture (para. 49).

[23]                          Paragraph 62 of the Second Amended Statement of Claim is somewhat repetitious of paras. 30-31.  The Lax Kw’alaams asserted an Aboriginal right “to harvest, manage, and sell on a commercial scale Fisheries Resources and [processed] Fish Products . . . for the purpose of sustaining   . . . their communities, accumulating and generating wealth, and maintaining their economy” (emphasis added).

[24]                          The Lax Kw’alaams stated that by “commercial scale” they meant the exchange of “Fisheries Resources for money, goods or services, on a large scale” and that they had used the words “selling” and “trading” interchangeably (see particulars at paras. 54(d) and 54(f)).

[25]                          With respect to the relief claimed, the Lax Kw’alaams sought:

(a)      a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to harvest all species of Fisheries Resources within the constitutional jurisdiction of Canada in the Tribal Territories;

(b)      a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to sell on a commercial scale all species of Fisheries Resources within the constitutional jurisdiction of Canada that they harvest from the Tribal Territories. [Emphasis added; Second Amended Statement of Claim, at para. 95.]

[26]                          The trial judge combined the two pleas into one paragraph, characterizing the principal relief sought as follows:

The relief sought by the plaintiffs includes Declarations that:

a.        the plaintiffs have an existing aboriginal right within the meaning of s. 35(1) of the Constitution Act of 1992 (sic) to harvest and sell on a commercial scale all species of Fisheries Resources that they harvest from their Claimed Territories.  [Emphasis added; para. 97.]

The Lax Kw’alaams also sought a declaration that Canada has breached fiduciary obligations and the Honour of the Crown in relation to the fisheries.

III. Judicial History

A.  British Columbia Supreme Court (Madam Justice Satanove (now Madam Justice Kloegman), 2008 BCSC 447, [2008] 3 C.N.L.R. 158

[27]                          Before trial, an order was made that severed from the proceeding the question of Aboriginal title (2006 BCSC 1463).  At trial, the claims not severed were dismissed.  The trial judge did not address the question of infringement, because she found there to be no existing Aboriginal right.

[28]                          The trial judge was not satisfied that trade in any fish or fish products other than eulachon grease could properly be described as integral to the Lax Kw’alaams distinctive culture (para. 495).  Such sporadic trade as may have existed in other fishery resources in no way constituted “a central and significant part of the society’s distinctive culture”, or in any way made their society “truly . . . what it was” (para. 496, citing R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 55 (emphasis in original omitted)).  Such sporadic trade was low volume, opportunistic, irregular, for food, social and ceremonial purposes, and purely incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch, and ranked society (para. 496).  The potlatch rested on a cultural and ceremonial basis that was quite different from a commercial marketplace.

[29]                          Ultimately, the trial judge concluded, “the plaintiff’s simplistic position that the 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” (para. 499 (emphasis added)).  Specifically,

The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.  [para. 499]

[30]                          The trial judge then added, in what could be taken as a comment on a lack of continuity and proportionality, in a paragraph already set out above but reproduced here for convenience:

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.  [para. 501]

If one were to substitute for the words “is equivalent to” in this quotation the different words “provides a sufficient historical basis for”, I would respectfully agree with the proposition.

[31]                          With respect to the alternative claim that the Crown had breached its “trust-like or fiduciary obligation” to the Lax Kw’alaams by “restricting or denying” them access to harvest fish for commercial purposes, the trial judge found their version of the facts to be “notably one sided” (paras. 515-17).  As the Crown had given “no promise of commercial fishing rights, exclusively or at all, to the Coast Tsimshian”, either as part of the reserve-allotment process or otherwise, the Lax Kw’alaams lacked the legal foundation to establish that any fiduciary duty was owed to them (para. 518).  Neither had the Lax Kw’alaams established that the Crown had acted dishonourably by subjecting them to the same limits and restrictions on fishing as all other fishers (para. 529).  Therefore, the argument based on the Honour of the Crown or fiduciary duty did not support the Lax Kw’alaams’ claim for access to commercial fishing in priority to non-Aboriginal fishers.

B.   British Columbia Court of Appeal (Newbury, Chiasson and Bennett JJ.A.), 2009 BCCA 593, 281 B.C.A.C. 88

[32]                          The appeal was dismissed.  Newbury J.A. held that the trial judge had properly distinguished the eulachon fishery from that of other species in defining the pre-contact activity (paras. 42-43).  She held that the nature and scope of the pre-contact activity is determined on the facts of each case (para. 35).  Given the trial judge’s finding that the eulachon trade was a species-specific activity not related to the broader harvesting of fish for subsistence is supported by R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, it would be misdescribing the Coast Tsimshian way of life to say that trading fish resources generally was integral to their way of life when that trade was relatively minor and limited to one species (para. 38).  Other species like salmon were only harvested for subsistence purposes and were so plentiful as not to be the subject of trade except in times of famine (paras. 2, 23, 26 and 43).

[33]                          She found that the appropriate question was whether commercial fishing is the logical evolution of the Lax Kw’alaams’ traditional practices relating to eulachon grease (para. 45).  There was no basis upon which to reverse the trial judge’s conclusion that the pre-contact eulachon trade was not the precursor of a modern right to fish all species for commercial purposes (para. 48).

[34]                          As to the “lesser rights” argument, the Lax Kw’alaams argued that the reference to “sustaining their communities” amounted to the assertion of a more limited commercial right (para. 59, citing the Second Amended Statement of Claim, at para. 31).  In Newbury J.A.’s view, however, the trial judge’s refusal to consider “lesser and included rights” was a “judgment call” that was open to her (para. 62).  The trial judge was best placed to evaluate the pleadings, argument and prejudice to the other parties.

[35]                          The appellants pointed to various instances in their pleadings that referred to “consumption” and “sale” or “trade”, but the Court of Appeal stated that “[i]t should not be necessary for a court to try to piece together various obscure references in a pleading in order to discern what is being sought” (para. 65).

[36]                          With respect to the assertion that the Crown had promised in the process of reserve allotment that the Lax Kw’alaams would  “ ‘be kept in the fishing business alongside other fishers’ — i.e. a non-exclusive right to fish commercially” (para. 76), the trial judge had found that no such promise was made and the trial judge’s finding that there was no basis for the Lax Kw’alaams to be treated preferentially to non-Aboriginal fishers was fully justified by the evidence (para. 77).

IV. Issues

[37]                          The Lax Kw’alaams raise the following issues:

1.         Did the courts below err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices?

2.         Did the courts below err in isolating the ancestral practice of trading in eulachon grease “as a practice of its own” rather than focusing more comprehensively on the Coast Tsimshian “fishing way of life”?

3.         Did the courts below err by refusing to consider whether the appellants had established a “lesser” right to fish on a “moderate” scale “to sell to others in order to acquire money, goods or services to sustain [their] communities” or to an Aboriginal right to fish for food, social and ceremonial purposes?

4.         Did the courts below err in dismissing the claim based on the Honour of the Crown by concluding that, in the allotment of fishing station reserves, the Crown did not expressly or impliedly promise the Lax Kw’alaams a preferential fishery?

V.  Analysis

[38]                          The Lax Kw’alaams First Nation and its ancestors have inhabited the northwest coast of British Columbia for thousands of years.  In the pre-contact period prior to 1793, the basis of their culture and sustenance was the fishery.  The principal issue in the present action is whether its ancestral practices, customs and traditions provide a proper legal springboard to the right to harvest and sell all varieties of fish in a modern commercial fishery — a right that would be protected and privileged by s. 35(1) of the Constitution Act, 1982.

[39]                          In a series of decisions over the last 15 years the Court has worked out the test to establish such a right in the context of a defence to prosecutions for regulatory offences:  see in particular Van der Peet; R. v. Gladstone, [1996] 2 S.C.R. 723; N.T.C. Smokehouse; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220 (“Marshall (2005)”); and R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686.  In such cases, it is the prosecution that establishes the boundaries of the controversy by the framing of the charge.  Here, however, the Lax Kw’alaams First Nation is the moving party, and it lay in its hands to frame the action, within the Supreme Court Civil Rules, B.C. Reg. 168/2009, as it saw fit.

A.  Did the Trial Judge Err in her Approach to Characterizing the Lax Kw’alaams’ Claim?

[40]                          The heart of the Lax Kw’alaams’ argument on this point is that “before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre-contact practices and way of life of the claimant group” (A.F., at para. 57 (emphasis in original)).  I would characterize this approach as a “commission of inquiry” model in which a commissioner embarks on a voyage of discovery armed only with very general terms of reference.  Quite apart from being inconsistent with the jurisprudence that calls for “characterization of the claim” as a first step, the “commission of inquiry” approach is not suitable in civil litigation, even in civil litigation conducted under rules generously interpreted in Aboriginal cases to facilitate the resolution in the public interest of the underlying controversies.

[41]                          I would reject the appellants’ approach for three reasons.  Firstly, it is illogical.  The relevance of evidence is tested by reference to what is in issue.  The statement of claim (which here did undergo significant amendment) defines what is in issue.  The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.

[42]                          Secondly, it is contrary to authority.  In Van der Peet, Lamer C.J. emphasized that the first task of the court, even in the context of a defence to a regulatory charge, is to characterize the claim:

. . . in assessing a claim to an aboriginal right a court must first identify the nature of the right being claimed; in order to determine whether a claim meets the test of being integral to the distinctive culture of the aboriginal group claiming the right, the court must first correctly determine what it is that is being claimed.  The correct characterization of the appellant’s claim is of importance because whether or not the evidence supports the appellant’s claim will depend, in significant part, on what, exactly, that evidence is being called to support.  [Emphasis added; para. 51.]

[43]                          Thirdly, it defies the relevant rules of civil procedure. Pleadings not only serve to define the issues but give the opposing parties fair notice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosure required, and set the parameters of expert opinion.  Clear pleadings minimize wasted time and may enhance prospects for settlement.

[44]                          In support of their “characterizing the right” argument, the Lax Kw’alaams cite Sappier, at paras. 24 and 46, but I do not read Sappier as departing from Van der Peet and its progeny.  Sappier was a prosecution for unlawful possession or cutting down of Crown timber from Crown lands and the Court’s inquiry was whether the accused could establish an Aboriginal right to engage in that particular conduct.  The Aboriginal right asserted by the defence was broader than necessary and in its broad generality risked being rejected as invalid.  In that context (as in many other prosecutions), it was necessary for the court to re-characterize and narrow the claimed right to satisfy the forensic needs of the defence without risking self-destruction of the defence by reason of overclaiming.  See, for example, Van der Peet itself where a claim to a general commercial fishery was narrowed because the fish had been caught pursuant to a valid food fishery licence, and thus a claim to a right to exchange fish already caught “for money and other goods” would suffice to obtain an acquittal (paras. 52, 77-79).  Similarly, in R. v. Pamajewon, [1996] 2 S.C.R. 821, in response to a charge of illegal gambling on a reserve, the court treated a defence claim to a broad Aboriginal right “to manage the use of their reserve lands” as one of “excessive generality” (para. 27), i.e. broader than required to defeat the prosecution.  The charge of illegal gambling would be met by a narrower right “to participate in, and to regulate, high stakes gambling activities” on the reserve (para. 26).  In the result, it was held that even the narrower claim was not established on the evidence.  The re-characterization of the defence claim in Sappierwas another example in this line of cases.

[45]                          To the extent the Lax Kw’alaams are saying that, in Aboriginal and treaty rights litigation, rigidity of form should not triumph over substance, I agree with them.  However, the necessary flexibility can be achieved within the ordinary rules of practice.  Amendments to pleadings are regularly made in civil actions to conform with the evidence on terms that are fair to all parties.  The trial judge adopted the proposition that “he who seeks a declaration must make up his mind and set out in his pleading what that declaration is”, but this otherwise sensible rule should not be applied rigidly in long and complex litigation such as we have here.   A case may look very different to all parties after a month of evidence than it did at the outset.  If necessary, amendments to the pleadings (claim or defence) should be sought at trial.  There is ample jurisprudence governing both the procedure and outcome of such applications.  However, at the end of the day, a defendant must be left in no doubt about precisely what is claimed.  No relevant amendments were sought to the prayer for relief at trial in this case.

[46]                          With these considerations in mind, and acknowledging that the public interest in the resolution of Aboriginal claims calls for a measure of flexibility not always present in ordinary commercial litigation, a court dealing with a s. 35(1) claim would appropriately proceed as follows:

1.         First, at the characterization stage, 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 claimed on terms that are fair to all parties.

2.         Second, determine whether the First Nation has proved, based on the evidence adduced at trial:

(a)        the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and

(b)        that this practice was integral to the distinctive pre-contact Aboriginal society.

3.         Third, determine whether the claimed modern right has a reasonable degree of continuity with the “integral” pre-contact practice.  In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice?  At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right.  As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.

4.        Fourth, and finally, in the event that an Aboriginal right to trade commercially is found to exist, the court, when delineating such a right should have regard to what was said by Chief Justice Lamer in Gladstone (albeit in the context of a Sparrow justification), as follows:

Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard.  In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.  [Emphasis in the original; para. 75.]

See also R. v. Marshall, [1999] 3 S.C.R. 533, at para. 41.

[47]                          In my view the trial judge proceeded correctly in her approach to characterization of the claim based on the pleadings and this ground of appeal should be rejected.

B.   Did the Trial Judge Err in Refusing to Consider a Modern Commercial Fishery to be the Logical Evolution of a Pre-Contact Trade in Eulachon Grease?

[48]                          The trial judge interpreted the pleadings as a single claim to an existing Aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982, “to harvest and sell on a commercial scale all species of Fisheries Resources in the Claimed Territories” (para. 97).  Although the Lax Kw’alaams sought two distinct and separate declarations, the fusion into a single claim for declaratory relief made by the trial judge was quite appropriate.  There can be no sale without a prior harvesting of the fish and the whole point of harvesting the fish, according to the Second Amended Statement of Claim, was for commercial sale.  The two elements of the claim are inextricably tied together.

[49]                          If established, an Aboriginal right is not frozen at contact, but is subject to evolution both in terms of the subject matter and the method of its exercise, depending on the facts.

[50]                          In terms of the mode of exercise, the courts have repeatedly recognized that fishing methods continue to evolve.  The Aboriginal source of fishing rights does not require rights holders in the Pacific Northwest to fish from dugout canoes.  Pre-contact trade in Pacific smoked salmon (if established) should not exclude preparation and sale of the frozen product when the technology became available.  (All of this, of course, is subject to the interest of conservation and other substantial and compelling interests:  Sparrow, at pp. 1108-1110; and N.T.C. Smokehouse, at para. 96.)

[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.

[52]                          The trial judge was satisfied that the ancestors of the Lax Kw’alaams “harvested a wide variety of Fish Resources and Products through an array of fishing techniques.  They have proved that the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption, was an integral part of their distinctive culture” (para. 494 (emphasis added)).  She further found

that the pre-contact Coast Tsimshian existed primarily within a subsistence economy until the arrival of the fur traders who influenced the creation of trade monopolies and chiefdoms [although they were also] involved in some form of loosely termed trade before the date of contact.  This trade involved primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium and eulachon grease.  [para. 495]

However, and this is the crucial point, the trial judge held that “trade in any other Fish Resource or Product beside eulachon grease” (ibid. (emphasis added)) could not be described as integral to their distinctive culture.  Such sporadic trade as took place in other fish products was peripheral to the pre-contact society and did not define what made Coast Tsimshian society what it was.

[53]                          The Lax Kw’alaams argue that such sporadic trade in other fish products was nonetheless part of their ancestral “way of life” and, on that account, they should be allowed to continue to engage in trade in fish generally under the protection of s. 35(1) of the Constitution Act, 1982.  In other words, the Lax Kw’alaams’ argument is that proof of even sporadic trade as part of pre-contact society is sufficient to support a modern trading right in “all species of fish” and that the test applied by the trial judge is too strict.  It should be enough to show that trade was part of their ancestors’ pre-contact “way of life” whether or not “distinctive” or “integral” as required by Van der Peet.

[54]                          The Lax Kw’alaams place reliance on references to “way of life” in Sappier, at paras. 24 and 40.  However, the reference in Sappier to a pre-contact “way of life” should not be read as departing from the “distinctive culture” test set out in Van der Peet, where Chief Justice Lamer stated:

To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part.   The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture.   He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive — that it was one of the things that truly made the society what it was.  [First emphasis added; second emphasis in original; para. 55.]

The trial judge found on the facts that the Lax Kw’alaams had not met this threshold.

[55]                          Counsel for the Lax Kw’alaams argues that, even if pre-contact trade had been limited to eulachon grease (which they deny), the modern right should not be “frozen” but should be generalized and “evolved” to include all other fish species and fish products.

[56]                          However, such an “evolution” would run counter to the trial judge’s clear finding that the ancestors of the Lax Kw’alaams fished all species but did not trade in any significant way in species of fish or fish products other than eulachon.  Extension of a modern right to all species would directly contradict her view that only the “species specific” trade in eulachon grease was integral to the distinctive culture of the pre-contact society.  A general commercial fishery would represent an outcome qualitatively different from the pre-contact activity on which it would ostensibly be based, and out of all proportion to its original importance to the pre-contact Tsimshian economy.

[57]                          The “species specific” debate will generally turn on the facts of a particular case.  Had it been established, for example, that a defining feature of the distinctive Coast Tsimshian culture was to catch whatever fish they could and trade whatever fish they caught, a court ought not to “freeze” today’s permissible catch to species present in 1793 in the northwest coastal waters of British Columbia.  As the oceans have warmed, new species have come north from southern waters and the migratory pattern of some of the old species may have shifted towards Alaska.  To ignore the evolution of the fisheries resources of the Pacific Northwest would be uncalled for in the absence of some compelling reason to the contrary on the particular facts of a particular case, as in the debate about geoduck harvesting in Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237, 19 B.C.L.R. (5th) 20, a debate on which I express no opinion.  However, this example, it seems to me, is very different from the situation we have here, where trade was an exception to the general sustenance fishery and the only subject matter of trade was eulachon grease.

[58]                          The trial judge made no findings regarding the quantity of eulachon grease traded in those ancient times (and presumably had no means of doing so given the lack of evidence), but it may be assumed that, given the very short eulachon fishing season and the laborious method of extraction of the grease previously described, the quantities were small relative to the overall pre-contact fishing activity of the industrious and productive Coast Tsimshian peoples.  Accordingly, to extrapolate a modern commercial fishery from the pre-contact trade in eulachon grease would lack proportionality in quantitative terms relative to the overall pre-contact fishing activity as well.

[59]                          The trial judge concluded that transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be “evolution” but the creation of a different right.  On that basis, the claim failed both the integrality and continuity requirements of the Van der Peet test.  These findings were supported by the evidence.

C.  Did the Trial Judge Err in Refusing to Make a Declaration in Relation to “Lesser and Included Rights”?

[60]                          The Lax Kw’alaams seek a declaration of “lesser included” Aboriginal rights to harvest fish of all species for consumption and sale “to sustain their communities and generate wealth and maintain and develop their economy” (A.F., at paras. 92 and 136(b)(ii)).  The Lax Kw’alaams also seek a declaration of entitlement to a s. 35(1) right to a food, social and ceremonial fishery (A.F., at para. 136(b)(iii)).

[61]                          The categories of fishery are thus portrayed as falling along a spectrum with a subsistence food fishery at the bottom end and a full commercial fishery at the top end.  Where this “lesser” commercial-type fishery falls on the spectrum is not altogether clear.  In their final written argument at trial the Lax Kw’alaams characterized the lesser right as “a right to harvest all species of Fisheries Resources in the Lax Kw’alaams Territory, for the purpose of selling those Fisheries Resources and their products, on a commercial scale, to sustain the Lax Kw’alaams communities accumulate and generate wealth” (Second Amended Statement of Claim, at para. 92 (emphasis added)).  It is therefore a “lesser” right but nevertheless a commercial right, albeit on a more modest scale.  How much more modest is not clear.  The Lax Kw’alaams particularized the “amount of Fisheries Resources that the Plaintiffs need to sustain their communities” as “depending on a number of factors including availability of stocks and availability of markets for their Fisheries Resources.  The Plaintiffs require enough Fisheries Resources which, when converted to money, will enable the communities to develop and maintain a prosperous economy” (Amended Response, at para. 57(c)).

[62]                          It seems to me that by rejecting the claim to the “greater” commercial fishery on the basis that trade in fish other than eulachon was not integral to pre-contact society, the trial judge was equally required to reject a “lesser” commercial right to fish “all species”.  Her problem on this branch of the argument was not only the scale of the commercial fishery but whether and to what extent “trade” in the pre-contact period could support any sort of modern commercial fishery — whether full scale or “lesser” in scope.  Her conclusion that trade in fish apart from eulachon grease was not integral to Coastal Tsimshian pre-contact society was as fatal to the lesser commercial claim as it was to the greater commercial claim.

[63]                          In any event the trial judge stated that “neither party led evidence regarding any pre-contact [practice] of sustaining the community through trade on any scale” (para. 102).

[64]                          In the trial judge’s view, “it is relevant to the fairness of the proceedings that a party not introduce, at the stage of final submissions, new issues that were not properly the subject of adjudication” (ibid.).  The Attorney General of Canada contends that the Lax Kw’alaams’ attempt to re-cast their claim in final argument was unfair because:

(i)            Rights to fish for sale on a lesser commercial scale were not advanced until final oral argument.  The Lax Kw’alaams’ opening submissions, written and oral, were directed to fishing for commercial purposes.

(ii) The Particulars provided by counsel for the Lax Kw’alaams, were directed to “commercial scale” fishing, defined as “exchange of Fisheries Resources for money, goods or services, on a large scale” (Amended Response, at para. 54(d) (italics added))

(iii)            The retainer letters to three of the Lax Kw’alaams experts sought their respective opinion in relation to “access to fisheries resources for commercial purposes”.

(iv)            The lay and expert witness evidence was led in relation to a full scale commercial fishing.

This is not altogether surprising.  Counsel for the Kw’alaams may have concluded that to appear to dwell on lesser claims might signal to the court a lack of confidence in their clients’ prospects of success in the claim to a full commercial fishery.  It is never a wise practice to push a back-up argument at the expense of the primary claim, and counsel should not be faulted for pursuing a time-honoured strategy, if indeed that is what they were up to.

[65]                          Nevertheless, quite apart from the Attorney General’s procedural objections, there remained the problem of what exactly the trial judge was expected to say in the declaration of “lesser rights”.  Nothing in the prayer for relief in the Second Amended Statement of Claim suggested a wording for the declaration of a “lesser” commercial right and no precise wording for a declaration in that regard was proposed by counsel during argument in this Court or, it seems, in the courts below.

[66]                          The “lesser” claim bristled with difficulty.  It was for access to sufficient fish which, “when converted to money”, would enable the Lax Kw’alaams to “develop and maintain a prosperous economy” (Amended Response, at para. 57(c)).  What does this mean? How would governments responsible for its implementation go about implementing it?  Quite apart from the pleadings and other more substantive objections, no guidance was provided as to what standard of prosperity the Lax Kw’alaams sought or the basis on which such a standard would be quantified.  The claimed “right” to enough fish to guarantee a “prosperous economy” has very far-reaching implications for fisheries management.  A Sparrow justification is only required once a s. 35(1) right has been established.  It is at the establishment stage that the Lax Kw’alaams’ claim presented difficulties which, in my opinion, the trial record did not oblige the trial judge to resolve.

[67]                          This is not like a treaty case where the court may be obliged to interpret its terms — however vague — because that is what the parties agreed to.  Here nothing in this respect has been agreed to.  The economic implications of even a “lesser” commercial fishery could be significant, and the Crown is entitled to proper notice of what “declaration” it was supposed to argue about and to test the evidence directed to that issue.

[68]                          In summary, the Lax Kw’alaams’ claim to a declaration of an aboriginal right to a “lesser” commercial fishery was properly rejected, in my opinion.

D.  Did the Trial Judge Err in Failing to Award a Commercial Fishery Licence on the Basis of the Honour of the Crown?

[69]                          The Lax Kw’alaams argued that the Crown had an implied obligation to preserve their access to a commercial fishery on a preferential basis as a result of Crown promises, express or implied, made during the reserve allotment process.  They contended that the Crown’s express grant of fishing station reserves to the Coast Tsimshian — when interpreted in the light of the historical context and the Crown’s policy, purpose, and representations made during the allotment process — gave rise at least to an implied right to commercial fishing opportunities for the Lax Kw’alaams.  The Crown’s purpose behind allotting fishing station reserves, they suggest, was to encourage coastal tribes to rely on the commercial fishery as their primary means of livelihood, as evidenced in an 1875 memorandum written by B.C. Attorney-General George Walkem and the instructions given by Canada to its Reserve Commissioner Peter O’Reilly.

[70]                          As stated earlier, the trial judge found that no express promise had been made of any preferential access to the commercial fishery (paras. 515-18 and 525).

[71]                          As to implied promises, the Lax Kw’alaams cite this Court’s judgment in R. v. Marshall, [1999] 3 S.C.R. 456.  In that case the claimant was charged with a series of offences related to harvesting and selling eels.  At issue was an eighteenth century peace treaty between the Mi’kmaq and the Crown pursuant to which the former agreed to trade exclusively at British truckhouses.  In his defence, Mr. Marshall argued that his treaty right exempted him from theFisheries Act regulations.  There was no doubt about the existence of the treaty; the issue was one of treaty interpretation.  A majority of the Court held that the treaty must be interpreted in a manner that “gives meaning and substance to the promises made by the Crown” (para. 52).  It would be unreasonable to interpret the treaty to confer a trading right while withholding access to the resources it was contemplated would be traded.  Accordingly, there was by necessity an implied promise to allow the Mi’kmaq to fish for trading purposes to buy “necessaries” (paras. 59 and 66).  The Court was obliged to give meaning to the word “necessaries” which had been agreed in the 1760-61 treaty negotiations.

[72]                          Here there is no treaty.  The trial judge held there was no promise.  The Crown, she found, never intended in the process of allocating reserves to grant the Lax Kw’alaams preferential access to the fishery.  They were to be treated in the same manner as other fishers.  She found that this intention was made clear to the Lax Kw’alaams and that the Crown never made any undertaking by word or conduct to the contrary (paras. 515 and 517).  The Lax Kw’alaams’ arguments based on fiduciary duties or the honour of the Crown necessarily fail in the absence of any substratum of relevant facts on which to base them.

VI. Disposition

[73]                          Large amounts of time and resources were dedicated to a year-long trial to determine the commercial fisheries issue.  Notwithstanding the facts that the people of the Coast Tsimshian have deep roots in the coastal fishery of what is now British Columbia, the evidence satisfied the trial judge that they were not a trading people, except in the limited area of species specific eulachon grease.  This is not to say the Lax Kw’alaams are without s. 35(1) rights.  Their claim to Aboriginal title remains outstanding.  In the meantime, as the record shows, they possess an Aboriginal fishing licence to take fish for food and ceremonial purposes.

[74]                          The appeal must be dismissed but, as in the courts below, without costs.

APPENDIX

GINAXANGIIK TRIBE

GITANDOAH TRIBE

GITWILGIOTS TRIBE

GIT’TSIIS TRIBE

GITNADOIKS TRIBE

GISPAXLOATS TRIBE

GITLAN TRIBE

GITZAXLAAL TRIBE

GITLUTZAU TRIBE

Appeal dismissed.

Solicitors for the appellant:  Ratcliff & Company, North Vancouver.

Solicitor for the respondent the Attorney General of Canada:  Department of Justice, Vancouver.

Solicitor for the respondent Her Majesty The Queen in Right of the Province of British Columbia:  Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitors for the intervener the Metlakatla Band:  Mandell Pinder, Vancouver.

Solicitor for the interveners the B.C. Wildlife Federation and the B.C. Seafood Alliance:  J. Keith Lowes, Vancouver.

Solicitors for the intervener the Gitxaala Nation:  Woodward & Company, Victoria.

Solicitors for the intervener the Te’Mexw Treaty Association:  Janes Freedman Kyle Law Corporation, Victoria.

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Citation:Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56Date:November 10, 2011Docket: 33581

SUPREME COURT OF CANADA

BETWEEN:

Lax Kw’alaams Indian Band, represented by Chief Councillor

Garry Reece on his own behalf and on behalf of the members of the

Lax Kw’alaams Indian Band, and others

Appellants

and

Attorney General of Canada and Her Majesty The Queen in Right

of the Province of British Columbia

Respondents

- and -

Attorney General of Ontario, Metlakatla Band,

B.C. Wildlife Federation, B.C. Seafood Alliance, Gitxaala Nation,

represented by Chief Elmer Moody, on his own behalf and on behalf

of the  members of the Gitxaala Nation, and Te’Mexw Treaty Association

Interveners

CORAM: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.

NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

LAX KW’ALAAMS INDIAN BAND v. CANADA (A.G.)

Lax Kw’alaams Indian Band,

represented by Chief Councillor Garry Reece

on his own behalf and on behalf of the members

of the Lax Kw’alaams Indian Band,

and others                                                                                                        Appellants

v.

Attorney General of Canada and

Her Majesty The Queen in Right of the

Province of British Columbia                                                                     Respondents

and

Attorney General of Ontario,

Metlakatla Band, B.C. Wildlife Federation,

B.C. Seafood Alliance, Gitxaala Nation,

represented by Chief Elmer Moody,

on his own behalf and on behalf of the

members of the Gitxaala Nation, and

Te’Mexw Treaty Association                                                                       Interveners

Indexed as:  Lax Kw’alaams Indian Band v. Canada (Attorney General)

2011 SCC 56

File No.:  33581.

2011:  February 17; 2011:  November 10.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Aboriginal law — Aboriginal rights — Fishing — Nature of pre?contact practice — Evolution of pre?contact practice — First Nations claiming rights to commercial harvesting and sale of all species of fish within their traditional waters —Whether pre?contact trade in specific fish product could evolve into modern commercial fishery — Constitution Act, 1982, c. 35(1).

Civil procedure — Pleadings — Aboriginal rights litigation — Whether Aboriginal rights claim should be characterized based on pleadings or a broader enquiry — Whether claim for declaration of “lesser” rights was properly presented in pleadings

Aboriginal law — Fiduciary duty — Whether historical record supported existence of fiduciary duty to grant claimants right to modern commercial fishery.

This appeal involves the claim of the Lax Kw’alaams and other First Nations (“the Lax Kw’alaams”), whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena Rivers, to the commercial harvesting and sale of “all species of fish” within their traditional waters.  Such an Aboriginal fishery would be within the protection of s. 35(1) of the Constitution Act, 1982.  The basis of the pre?contact society’s culture and sustenance was the fishery.  It had a subsistence economy with some trade — primarily a gift exchange between kin at feasts and potlatches or the exchange of luxury goods.  The harvesting and consumption of salmon, halibut, herring spawn, seaweed, shellfish, and eulachon were integral to its distinctive culture, but trade in fish or fish products other than the grease derived from the smelt?like species called the eulachon or candle fish (because when dried it could be burned like a candle) was held not to be integral to the distinctive culture of the pre?contact society.  Eulachon grease was a preservative for perishable food stuffs such as berries, and much valued for that purpose.  Such other trade in fish or fish products as took place was described by the trial judge as “low volume, opportunistic, irregular, . . . and incidental to the fundamental pre?contact . . . kinship relations”.

The Lax Kw’alaams claimed not only the right to the commercial harvesting and sale of all species of fish within their traditional waters but asserted that the Crown has a fiduciary duty in that respect flowing from promises made in the reserve allocation process in the 1870s and 1880s.  Finally, towards the end of the trial, they claimed what they described as lesser Aboriginal rights, including a right to sufficient fish which, “when converted to money”, would enable them to “develop and maintain a prosperous economy”, and a right to a food, social and ceremonial fishery.

The trial judge was not persuaded that the pre?contact customs, practices, and traditions supported the claimed Aboriginal rights to commercial activities and dismissed the claims.  The Court of Appeal agreed and dismissed the appeal.

Held:  The appeal should be dismissed.

The practices, customs and traditions of the pre?contact society do not provide an evidentiary springboard to a constitutionally protected Aboriginal right to harvest and sell all varieties of fish in a modern commercial fishery.  The pre?contact society was not a trading people, except with respect to eulachon grease.  As the trial judge found, such sporadic trade as took place in other fish products was peripheral to the pre?contact society and did not define what made pre?contact society what it was.

The Lax Kw’alaams contend that the courts below erred in their approach to the characterization of the claim, and consequently failed to analyse comprehensively the evidence in its support.  In their view “before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre?contact practices and way of life of the claimant group”.  This is not correct.  When dealing with a s. 35(1) claim, the court should begin by characterizing the claimed Aboriginal right based on the pleadings.  Making findings about the pre?contact way of life of the claimant group before characterizing the claimed right — the “commission of inquiry” approach — is not suitable in civil litigation, even in Aboriginal cases, where procedural rules are generously interpreted to facilitate the resolution of the underlying controversies in the public interest.  Following that model would be illogical and contrary to authority, and would defy the relevant rules of civil procedure.  Although the necessary flexibility can be achieved within the ordinary rules of practice (including the amendment of pleadings), a defendant must be left in no doubt about precisely what is claimed.  Having characterized the claim, the court should determine whether the First Nation has proved the existence of the pre?contact practice, tradition or custom advanced in the pleadings and that this practice was integral to the distinctive pre?contact society.  Third, taking a generous though realistic approach, the court should determine whether the claimed modern right has a reasonable degree of continuity with the integral pre?contact practice.  Finally, if the claimed right is found to exist, it should be delineated with regard to conservation goals and other relevant objectives.

In this case, the attempt to build a modern commercial fishery on the narrow support of a limited ancestral trade in eulachon grease lacks sufficient continuity and proportionality.  While an Aboriginal right is subject to evolution both in terms of the subject matter and the method of its exercise, the claim in this case to a general commercial fishery would create a right qualitatively and quantitatively different from the pre?contact trade in eulachon grease.  Qualitatively, trade in fish and fish products other than eulachon grease was peripheral to the pre?contact society.  It is not enough to show that some element of trade was part of the pre?contact way of life if it was not distinctive or integral to that way of life.  A general commercial fishery would represent an outcome qualitatively different from the pre?contact activity on which it would ostensibly be based, and out of all proportion to its original importance to the pre?contact economy.  Quantitatively, the short eulachon season and the laborious extraction method was likely of limited value relative to the overall pre?contact fishing activity of the industrious and productive pre?contact people.

As to the claims to lesser rights, the conclusion that trade in fish apart from eulachon grease was not integral to the pre?contact society was as fatal to these claims as it was to the greater commercial claim.  Further, had the claim to lesser rights been justified, it bristled with difficulty.  The Crown was entitled to proper notice of what was being sought and to test the evidence directed to that issue, but the focus of the pleadings and evidence was on the claim to a commercial fishery, not the lesser rights.  It was not clear what the claim meant, how it would be implemented, what standard of prosperity was sought, or the basis on which it would be quantified.  All of these matters had far?reaching implications for fisheries management.

As to the claim to an Aboriginal right to a fishery for food, social and ceremonial purposes, the Lax Kw’alaams presently hold communal Aboriginal licences in these respects.  Their entitlement seems not to be contentious, and, as courts generally do not make declarations in the absence of a live controversy, it was within the trial judge’s discretion to refuse to make such a declaration.

The arguments based on fiduciary duty or the honour of the Crown necessarily fail in the absence of any substratum of relevant facts on which to base them.  The Crown had not made express or implied promises of any preferential access to the commercial fishery, and had made its intention to treat Aboriginal fishers in the same manner as other fishers clear.

Cases Cited

Distinguished: R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; R. v. Pamajewon, [1996] 2 S.C.R. 821; referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; R. v. Marshall, [1999] 3 S.C.R. 533; Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237, 19 B.C.L.R. (5th) 20; R. v. Marshall, [1999] 3 S.C.R. 456.

Statutes and Regulations Cited

Constitution Act, 1982, s. 35(1).

Supreme Court Civil Rules, B.C. Reg. 168/2009.

Authors Cited

Mitchell, Donald, and Leland Donald.  “Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery” (2001), 43Anthropologica 19.

APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Chiasson and Bennett JJ.A.), 2009 BCCA 593, 281 B.C.A.C. 88, 475 W.A.C. 88, 314 D.L.R. (4th) 385, [2010] 1 C.N.L.R. 278, [2009] B.C.J. No. 2556 (QL), 2009 CarswellBC 3479, affirming a decision of Satanove J., 2008 BCSC 447, [2008] 3 C.N.L.R. 158, [2008] B.C.J. No. 652 (QL), 2008 CarswellBC 735.  Appeal dismissed.

John R. Rich, F. Matthew Kirchner and Lisa C. Glowacki, for the appellants.

Cheryl J. Tobias, Q.C., Sharlene Telles?Langdon and James M. Mackenzie, for the respondent the Attorney General of Canada.

Patrick G. Foy, Q.C., for the respondent Her Majesty The Queen in Right of the Province of British Columbia.

Malliha Wilson and Michael E. Burke, for the intervener the Attorney General of Ontario.

Maria Morellato, Q.C., and Cheryl Sharvit, for the intervener the Metlakatla Band.

J. Keith Lowes, for the interveners the B.C. Wildlife Federation and the B.C. Seafood Alliance.

David M. Robbins and Jay Nelson, for the intervener the Gitxaala Nation.

Robert J. M. Janes and Sarah E. Sharp, for the intervener the Te’Mexw Treaty Association.

The judgment of the Court was delivered by

BINNIE J. —

[1]                              This appeal involves the claim of the Lax Kw’alaams First Nation and other First Nations listed in the Appendix to these reasons (herein collectively referred to as “Lax Kw’alaams”), whose ancestral lands stretch along the northwest coast of British Columbia between the estuaries of the Nass and lower Skeena Rivers, to the commercial harvesting and sale of “all species of fish” within their traditional waters.  Such an Aboriginal fishery would be within the protection of s. 35(1) of the Constitution Act, 1982, subject only to such limits as can be justified under the test in R. v. Sparrow, [1990] 1 S.C.R. 1075.  The commercial fisheries claim was part of a larger action asserting Aboriginal title, but the Aboriginal title issue was severed and has yet to go to trial.

[2]                              The trial judge rejected the commercial fisheries claim on the basis that, despite a year of factual and expert evidence, she was not persuaded that the Coast Tsimshian people’s pre-contact customs, practices, and traditions supported such an Aboriginal right (2008 BCSC 447, [2008] 3 C.N.L.R. 158).  To the limited extent that the Coast Tsimshian traded in fish and fish products, such trade was specific to a product derived from a single species, the eulachon.  Trade in fish more generally was not integral to their distinctive society and thus did not provide a foundation for a s. 35(1) Aboriginal right to a modern wealth-generating “industrial” fishery.  This conclusion was upheld by the British Columbia Court of Appeal (2009 BCCA 593, 281 B.C.A.C. 88).  The Lax Kw’alaams say that the courts below erred in their approach to the characterization of the claim, and consequently failed to analyse comprehensively the evidence in its support.

[3]                              In the alternative, the Lax Kw’alaams argue that, quite apart from an Aboriginal right to harvest and sell fish on a full commercial scale, the evidentiary record establishes a variety of “lesser and included” Aboriginal rights, notably the right to a more limited commercial fishery (based in part on the traditional potlatch exchange) consisting of a right to harvest and sell fish and fish products sufficient “to sustain their communities, accumulate and generate wealth and maintain and develop their economy” (Second Amended Statement of Claim, at para. 31).  They seek, in the further alternative, a still more limited Aboriginal right to a food, social and ceremonial fishery.  The British Columbia Court of Appeal decided, having regard to the state of the pleadings and the way in which the 126-day trial had unfolded, that the trial judge’s decision not to deal with “ ‘lesser’ and ‘included’ rights” was a “judgment call” which she was entitled to make.  In the trial judge’s view, the trial from first to last had been about the right to a full-blown commercial fishery.  Everything else was peripheral and not fully presented.

[4]                              The Lax Kw’alaams also support their claims on the basis of alleged promises by government officials (thus implicating the Honour of the Crown) at the time of reserve creation in the 1880s.  This, too, was rejected by the trial judge on the basis that no such promises had ever been made.  Her finding of fact in this respect was also accepted by the British Columbia Court of Appeal.

[5]                              For the reasons that follow, I would uphold the conclusion of the Court of Appeal on all issues and dismiss the appeal.

I.   Overview

[6]                              The trial judge acknowledged that prior to contact with Europeans, the Coast Tsimshian largely sustained themselves by an extensive fishery.  They did not, however, engage in any significant trade in fish or fish products except for a grease derived from a smelt-like species called the eulachon or candle fish (because when dried it could be burned like a candle).  Such other trade in fish or fish products as took place was described by the trial judge as “low volume, opportunistic, irregular . . . incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch and ranked society” (para. 496).

[7]                              Eulachon were harvested for a few weeks every spring at the Nass River.  The trial judge held:

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.  [para. 501]

A key issue in the case is therefore the question of continuity between the Coast Tsimshian people’s pre-contact practice of rendering eulachon grease and trading the product thereby generated, on the one hand, and, on the other hand, their claim to a contemporary commercial fishery of all species for sale to non-Aboriginal as well as Aboriginal members of the public.  The legal requirement for continuity between ancestral practices, customs and traditions and the modern claimed Aboriginal right incorporates, of course, an allowance for logical evolution within limits.  This case, in part, is about where such limits should be drawn.

[8]                              The Lax Kw’alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) of changing times.  However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right.  It was in part the lack of continuity and proportionality in the Lax Kw’alaams’ attempt to build a full-blown twenty-first century commercial fishery on the narrow support of an ancestral trade in eulachon grease that concerned the trial judge.  Her concern, in my view, was well founded.

[9]                              The trial judge held that the focus of the pleadings and evidence was on the Lax Kw’alaams’ claim to a commercial fishery.  Their later argument about “lesser and included rights” seems to have been borrowed hastily from criminal law and did not surface at trial in any significant way until the final argument.  The trial judge considered the defendant governments to have been prejudiced by what she saw as the Lax Kw’alaams’ belated attempt to recast the claim.

[10]                          The argument about “lesser and included” rights is more procedural than substantive in nature, although, as will be discussed, the basis of the trial judge’s rejection of the larger commercial right seems to me largely to dispose of the Lax Kw’alaams’ claim to a lesser commercial right as well.

[11]                          The courts (including this Court) have long urged the negotiation of Aboriginal and treaty claims.  If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings.  In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues.  Such potential advantages are dissipated, however, if the ordinary rules governing civil litigation, including the rules of pleading, are not respected.  It would not be in the public interest to permit a civil trial to lapse into a sort of free-ranging general inquiry into the practices and customs of pre-contact Aboriginal peoples from which, at the end of the day, the trial judge would be expected to put together a report on what Aboriginal rights might, if properly raised in the pleadings, have been established.

[12]                          At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel.  Litigation is invariably preceded by extensive historical research, disclosure, and negotiation.  If negotiations fail the rules of pleading and trial practice are well understood.  Tactical decisions are made on all sides.  It is true, of course, that Aboriginal law has as its fundamental objective the reconciliation of Canada’s Aboriginal and non-Aboriginal communities, and that the special relationship that exists between the Crown and Aboriginal peoples has no equivalent to the usual courtroom antagonism of warring commercial entities.  Nevertheless, Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well being of both.  The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders.

[13]                          As to the “honour of the Crown” and “fiduciary duties” branches of the Lax Kw’alaams’ claim, the trial judge held that no factual basis had been laid for such relief.  She held that there was no relevant unilateral promise by the Crown in the reserve allocation process or otherwise, let alone a treaty.  Accordingly, there was no conduct by the Crown by which the obligations claimed to exist could be generated.  The Honour of the Crown is a general principle that underlies all of the Crown’s dealings with Aboriginal peoples, but it cannot be used to call into existence undertakings that were never given.

[14]                          Finally, and somewhat belatedly, the Lax Kw’alaams brought to the forefront a claim to an Aboriginal right to a fishery for food, social and ceremonial purposes.  The Lax Kw’alaams presently hold federal fisheries licences for these purposes.  Their entitlement seems not to be a contentious issue.  It was therefore not an issue of significance in the present litigation.  Courts generally do not make declarations in relation to matters not in dispute between the parties to the litigation and it was certainly within the discretion of the trial judge to refuse to do so here.

II.   Facts

A.  Historical Background

[15]                          The Lax Kw’alaams First Nation consists of the descendants of an ancient “fishing people” comprising the several tribes or houses of the Coast Tsimshian.  In their traditional territories and fishing sites along the northwest coast of British Columbia salmon and other fish were in abundant supply.  The Coast Tsimshian were organized into a sophisticated society characterized by complex relationships based on “rank” and kinship.  Their “seasonal round” of activity was determined largely by the availability and location of salmon, halibut, herring spawn, seaweed, shellfish and the eulachon.  According to the trial judge, the salmon and eulachon

were revered in ritual, endowed with supernatural qualities in the halait, or adaawx, and formed the core of the subsistence economy.  All other Fish Resources pale by comparison.  [para. 225]

[16]                          The trial judge found that pre-contact (said to be around 1793) “the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption, was an integral part of their distinctive culture” (para. 494).  The Coast Tsimshian people had existed primarily “within a subsistence economy” although “some form of loosely termed trade” prior to contact had been shown (para. 495).  Such trade had involved “primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium [shellfish gathered from the ocean floor] and eulachon grease” (ibid).

[17]                          On appeal the eulachon became central to the claim for an Aboriginal right to a modern commercial fishery.  These fish were harvested for a few weeks in late winter (primarily, if not entirely, at locations along the Nass River) and were eaten fresh, smoked or dried for later use, or rendered into oil or grease by a process described as follows:

Eulachon were stored in pits dug into the ground or in big cedar plank bins for a little over a week.  They were then boiled in large wood vats — sometimes dugout canoes were pressed into service — and the freed oil was skimmed from the surface for storage in wooden boxes or the bulbs and long hollow stems of kelp.  When cooled to around 10ºC the oil firms to a butterlike consistency and does not liquefy again until the temperature has been raised to about 21ºC.

(Court of Appeal reasons, at para. 1, citing D. Mitchell and L. Donald, “Sharing Resources on the North Pacific Coast of North America: The Case of the Eulachon Fishery” (2001), 43 Anthropologica 19, at p. 21.)

The grease thus produced was exchanged between kin at feasts and potlatches along with other “luxury goods” (Court of Appeal reasons, at para. 2).  Eulachon grease was a preservative for perishable food stuffs such as berries, and much valued for that purpose.

[18]                          Almost a century later, in the 1880s, the Lax Kw’alaams were allotted reserves and fishing stations within their traditional territories.  They allege that quite apart from their claims to s. 35(1) Aboriginal rights, various government officials at that time made promises about access to the commercial fishery that implicate the honour of the Crown giving rise to the Crown’s trust-like or fiduciary duty to ensure that the Lax Kw’alaams have access to the commercial fishery.  At issue is the significance to be attached to the “explanations” given to the Coast Tsimshian by Commissioner Peter O’Reilly, who began setting apart reserves on the Northwest Coast in 1881, as follows:

I carefully explained to the Nass and Tsimpsean Indians, that in assigning them the several stations on the coast and tidal waters, no exclusive right of fishing was conveyed, but that they would, like their white brethren, be subject in every respect to the laws and regulations set forth in the Fishery Acts of the Dominion.  [Emphasis in original.]

(P. O’Reilly, Indian Resource Commissioner to Superintendent-General of Indian Affairs, 8 April 1882.  Copy in Annual Report of the Department of Indian Affairs for 1882 (1883), 88, at p. 91.)

[19]                          At all relevant times the Lax Kw’alaams held a communal Aboriginal license from the federal Department of Fisheries and Oceans to harvest fish for food, social, and ceremonial purposes.

B.   The Pleadings

[20]                          As the state of the pleadings plays an important role in the outcome of this appeal, it is important to set out the essential details.  In their Second Amended Statement of Claim, the Lax Kw’alaams asserted, at para. 28, that each of the ancestral coastal Tsimshian tribes was “a distinctive aboriginal society engaged in a sophisticated economy based predominantly on the harvesting, managing, processing, consuming and trading of all species of fish, shellfish and aquatic plants … that were available … from time to time within their Tribal Territories”.  Paragraphs 30-31 pleaded:

The harvesting, managing, processing, consuming and trading of Fisheries Resources were central features of each Tribe’s economy and were customs, practices or traditions that were integral to the distinctive aboriginal culture of each Tribe at and before Contact. . . .

The Lax Kw’alaams Band, or, in the alternative, each Allied Tsimshian Tribe, holds existing aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for consumption and sale to sustain their communities, accumulate and generate wealth and maintain and develop their economy. [Emphasis added.]

[21]                          In response to a request by the Attorney General of Canada for particulars as to what was meant by this pleading, counsel for the Lax Kw’alaams stated that “they have an aboriginal right or aboriginal rights to harvest any Fisheries Resource available to them within the Lax Kw’alaams Territory for their own consumption or to sell to others in order to acquire money, goods or services to sustain the Lax Kw’alaams communities economically, to generate economic growth in those communities, and to allow persons in the community to accumulate and generate wealth” (para. 27(b) (emphasis added)).  These particulars did not, I think, add much specificity to the pleadings, but the issue was not pursued by the Crown.

[22]                          It was further asserted that the accumulation of wealth in the Coast Tsimshian society had depended on trade, and that fisheries resources were the essential trade item by which tribes and house groups acquired wealth.  The “accumulation and redistribution of wealth to acquire or retain a high rank” within Tsimshian society were said in the claim to be integral features of their distinctive Aboriginal culture (para. 49).

[23]                          Paragraph 62 of the Second Amended Statement of Claim is somewhat repetitious of paras. 30-31.  The Lax Kw’alaams asserted an Aboriginal right “to harvest, manage, and sell on a commercial scale Fisheries Resources and [processed] Fish Products . . . for the purpose of sustaining   . . . their communities, accumulating and generating wealth, and maintaining their economy” (emphasis added).

[24]                          The Lax Kw’alaams stated that by “commercial scale” they meant the exchange of “Fisheries Resources for money, goods or services, on a large scale” and that they had used the words “selling” and “trading” interchangeably (see particulars at paras. 54(d) and 54(f)).

[25]                          With respect to the relief claimed, the Lax Kw’alaams sought:

(a)      a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to harvest all species of Fisheries Resources within the constitutional jurisdiction of Canada in the Tribal Territories;

(b)      a declaration that the Lax Kw’alaams or, in the alternative, each of the Allied Tsimshian Tribes, have existing aboriginal rights within the meaning of s. 35(1) of the Constitution Act, 1982 to sell on a commercial scale all species of Fisheries Resources within the constitutional jurisdiction of Canada that they harvest from the Tribal Territories. [Emphasis added; Second Amended Statement of Claim, at para. 95.]

[26]                          The trial judge combined the two pleas into one paragraph, characterizing the principal relief sought as follows:

The relief sought by the plaintiffs includes Declarations that:

a.        the plaintiffs have an existing aboriginal right within the meaning of s. 35(1) of the Constitution Act of 1992 (sic) to harvest and sell on a commercial scale all species of Fisheries Resources that they harvest from their Claimed Territories.  [Emphasis added; para. 97.]

The Lax Kw’alaams also sought a declaration that Canada has breached fiduciary obligations and the Honour of the Crown in relation to the fisheries.

III. Judicial History

A.  British Columbia Supreme Court (Madam Justice Satanove (now Madam Justice Kloegman), 2008 BCSC 447, [2008] 3 C.N.L.R. 158

[27]                          Before trial, an order was made that severed from the proceeding the question of Aboriginal title (2006 BCSC 1463).  At trial, the claims not severed were dismissed.  The trial judge did not address the question of infringement, because she found there to be no existing Aboriginal right.

[28]                          The trial judge was not satisfied that trade in any fish or fish products other than eulachon grease could properly be described as integral to the Lax Kw’alaams distinctive culture (para. 495).  Such sporadic trade as may have existed in other fishery resources in no way constituted “a central and significant part of the society’s distinctive culture”, or in any way made their society “truly . . . what it was” (para. 496, citing R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 55 (emphasis in original omitted)).  Such sporadic trade was low volume, opportunistic, irregular, for food, social and ceremonial purposes, and purely incidental to fundamental pre-contact Coast Tsimshian kinship relations, potlatch, and ranked society (para. 496).  The potlatch rested on a cultural and ceremonial basis that was quite different from a commercial marketplace.

[29]                          Ultimately, the trial judge concluded, “the plaintiff’s simplistic position that the 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” (para. 499 (emphasis added)).  Specifically,

The rendering of the eulachon into oil was an unique ancestral practice that brought wealth and prestige to the society, but it was not inter-related with the subsistence fishing of salmon, halibut, and other Fish Resources and Products.  [para. 499]

[30]                          The trial judge then added, in what could be taken as a comment on a lack of continuity and proportionality, in a paragraph already set out above but reproduced here for convenience:

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.  [para. 501]

If one were to substitute for the words “is equivalent to” in this quotation the different words “provides a sufficient historical basis for”, I would respectfully agree with the proposition.

[31]                          With respect to the alternative claim that the Crown had breached its “trust-like or fiduciary obligation” to the Lax Kw’alaams by “restricting or denying” them access to harvest fish for commercial purposes, the trial judge found their version of the facts to be “notably one sided” (paras. 515-17).  As the Crown had given “no promise of commercial fishing rights, exclusively or at all, to the Coast Tsimshian”, either as part of the reserve-allotment process or otherwise, the Lax Kw’alaams lacked the legal foundation to establish that any fiduciary duty was owed to them (para. 518).  Neither had the Lax Kw’alaams established that the Crown had acted dishonourably by subjecting them to the same limits and restrictions on fishing as all other fishers (para. 529).  Therefore, the argument based on the Honour of the Crown or fiduciary duty did not support the Lax Kw’alaams’ claim for access to commercial fishing in priority to non-Aboriginal fishers.

B.   British Columbia Court of Appeal (Newbury, Chiasson and Bennett JJ.A.), 2009 BCCA 593, 281 B.C.A.C. 88

[32]                          The appeal was dismissed.  Newbury J.A. held that the trial judge had properly distinguished the eulachon fishery from that of other species in defining the pre-contact activity (paras. 42-43).  She held that the nature and scope of the pre-contact activity is determined on the facts of each case (para. 35).  Given the trial judge’s finding that the eulachon trade was a species-specific activity not related to the broader harvesting of fish for subsistence is supported by R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672, it would be misdescribing the Coast Tsimshian way of life to say that trading fish resources generally was integral to their way of life when that trade was relatively minor and limited to one species (para. 38).  Other species like salmon were only harvested for subsistence purposes and were so plentiful as not to be the subject of trade except in times of famine (paras. 2, 23, 26 and 43).

[33]                          She found that the appropriate question was whether commercial fishing is the logical evolution of the Lax Kw’alaams’ traditional practices relating to eulachon grease (para. 45).  There was no basis upon which to reverse the trial judge’s conclusion that the pre-contact eulachon trade was not the precursor of a modern right to fish all species for commercial purposes (para. 48).

[34]                          As to the “lesser rights” argument, the Lax Kw’alaams argued that the reference to “sustaining their communities” amounted to the assertion of a more limited commercial right (para. 59, citing the Second Amended Statement of Claim, at para. 31).  In Newbury J.A.’s view, however, the trial judge’s refusal to consider “lesser and included rights” was a “judgment call” that was open to her (para. 62).  The trial judge was best placed to evaluate the pleadings, argument and prejudice to the other parties.

[35]                          The appellants pointed to various instances in their pleadings that referred to “consumption” and “sale” or “trade”, but the Court of Appeal stated that “[i]t should not be necessary for a court to try to piece together various obscure references in a pleading in order to discern what is being sought” (para. 65).

[36]                          With respect to the assertion that the Crown had promised in the process of reserve allotment that the Lax Kw’alaams would  “ ‘be kept in the fishing business alongside other fishers’ — i.e. a non-exclusive right to fish commercially” (para. 76), the trial judge had found that no such promise was made and the trial judge’s finding that there was no basis for the Lax Kw’alaams to be treated preferentially to non-Aboriginal fishers was fully justified by the evidence (para. 77).

IV. Issues

[37]                          The Lax Kw’alaams raise the following issues:

1.         Did the courts below err by characterizing the appellants’ Aboriginal rights claim based on the pleadings rather than an enquiry into pre-contact practices?

2.         Did the courts below err in isolating the ancestral practice of trading in eulachon grease “as a practice of its own” rather than focusing more comprehensively on the Coast Tsimshian “fishing way of life”?

3.         Did the courts below err by refusing to consider whether the appellants had established a “lesser” right to fish on a “moderate” scale “to sell to others in order to acquire money, goods or services to sustain [their] communities” or to an Aboriginal right to fish for food, social and ceremonial purposes?

4.         Did the courts below err in dismissing the claim based on the Honour of the Crown by concluding that, in the allotment of fishing station reserves, the Crown did not expressly or impliedly promise the Lax Kw’alaams a preferential fishery?

V.  Analysis

[38]                          The Lax Kw’alaams First Nation and its ancestors have inhabited the northwest coast of British Columbia for thousands of years.  In the pre-contact period prior to 1793, the basis of their culture and sustenance was the fishery.  The principal issue in the present action is whether its ancestral practices, customs and traditions provide a proper legal springboard to the right to harvest and sell all varieties of fish in a modern commercial fishery — a right that would be protected and privileged by s. 35(1) of the Constitution Act, 1982.

[39]                          In a series of decisions over the last 15 years the Court has worked out the test to establish such a right in the context of a defence to prosecutions for regulatory offences:  see in particular Van der Peet; R. v. Gladstone, [1996] 2 S.C.R. 723; N.T.C. Smokehouse; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220 (“Marshall (2005)”); and R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686.  In such cases, it is the prosecution that establishes the boundaries of the controversy by the framing of the charge.  Here, however, the Lax Kw’alaams First Nation is the moving party, and it lay in its hands to frame the action, within the Supreme Court Civil Rules, B.C. Reg. 168/2009, as it saw fit.

A.  Did the Trial Judge Err in her Approach to Characterizing the Lax Kw’alaams’ Claim?

[40]                          The heart of the Lax Kw’alaams’ argument on this point is that “before a court can characterize a claimed aboriginal right, it must first inquire and make findings about the pre-contact practices and way of life of the claimant group” (A.F., at para. 57 (emphasis in original)).  I would characterize this approach as a “commission of inquiry” model in which a commissioner embarks on a voyage of discovery armed only with very general terms of reference.  Quite apart from being inconsistent with the jurisprudence that calls for “characterization of the claim” as a first step, the “commission of inquiry” approach is not suitable in civil litigation, even in civil litigation conducted under rules generously interpreted in Aboriginal cases to facilitate the resolution in the public interest of the underlying controversies.

[41]                          I would reject the appellants’ approach for three reasons.  Firstly, it is illogical.  The relevance of evidence is tested by reference to what is in issue.  The statement of claim (which here did undergo significant amendment) defines what is in issue.  The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.

[42]                          Secondly, it is contrary to authority.  In Van der Peet, Lamer C.J. emphasized that the first task of the court, even in the context of a defence to a regulatory charge, is to characterize the claim:

. . . in assessing a claim to an aboriginal right a court must first identify the nature of the right being claimed; in order to determine whether a claim meets the test of being integral to the distinctive culture of the aboriginal group claiming the right, the court must first correctly determine what it is that is being claimed.  The correct characterization of the appellant’s claim is of importance because whether or not the evidence supports the appellant’s claim will depend, in significant part, on what, exactly, that evidence is being called to support.  [Emphasis added; para. 51.]

[43]                          Thirdly, it defies the relevant rules of civil procedure. Pleadings not only serve to define the issues but give the opposing parties fair notice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosure required, and set the parameters of expert opinion.  Clear pleadings minimize wasted time and may enhance prospects for settlement.

[44]                          In support of their “characterizing the right” argument, the Lax Kw’alaams cite Sappier, at paras. 24 and 46, but I do not read Sappier as departing from Van der Peet and its progeny.  Sappier was a prosecution for unlawful possession or cutting down of Crown timber from Crown lands and the Court’s inquiry was whether the accused could establish an Aboriginal right to engage in that particular conduct.  The Aboriginal right asserted by the defence was broader than necessary and in its broad generality risked being rejected as invalid.  In that context (as in many other prosecutions), it was necessary for the court to re-characterize and narrow the claimed right to satisfy the forensic needs of the defence without risking self-destruction of the defence by reason of overclaiming.  See, for example, Van der Peet itself where a claim to a general commercial fishery was narrowed because the fish had been caught pursuant to a valid food fishery licence, and thus a claim to a right to exchange fish already caught “for money and other goods” would suffice to obtain an acquittal (paras. 52, 77-79).  Similarly, in R. v. Pamajewon, [1996] 2 S.C.R. 821, in response to a charge of illegal gambling on a reserve, the court treated a defence claim to a broad Aboriginal right “to manage the use of their reserve lands” as one of “excessive generality” (para. 27), i.e. broader than required to defeat the prosecution.  The charge of illegal gambling would be met by a narrower right “to participate in, and to regulate, high stakes gambling activities” on the reserve (para. 26).  In the result, it was held that even the narrower claim was not established on the evidence.  The re-characterization of the defence claim in Sappierwas another example in this line of cases.

[45]                          To the extent the Lax Kw’alaams are saying that, in Aboriginal and treaty rights litigation, rigidity of form should not triumph over substance, I agree with them.  However, the necessary flexibility can be achieved within the ordinary rules of practice.  Amendments to pleadings are regularly made in civil actions to conform with the evidence on terms that are fair to all parties.  The trial judge adopted the proposition that “he who seeks a declaration must make up his mind and set out in his pleading what that declaration is”, but this otherwise sensible rule should not be applied rigidly in long and complex litigation such as we have here.   A case may look very different to all parties after a month of evidence than it did at the outset.  If necessary, amendments to the pleadings (claim or defence) should be sought at trial.  There is ample jurisprudence governing both the procedure and outcome of such applications.  However, at the end of the day, a defendant must be left in no doubt about precisely what is claimed.  No relevant amendments were sought to the prayer for relief at trial in this case.

[46]                          With these considerations in mind, and acknowledging that the public interest in the resolution of Aboriginal claims calls for a measure of flexibility not always present in ordinary commercial litigation, a court dealing with a s. 35(1) claim would appropriately proceed as follows:

1.         First, at the characterization stage, 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 claimed on terms that are fair to all parties.

2.         Second, determine whether the First Nation has proved, based on the evidence adduced at trial:

(a)        the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and

(b)        that this practice was integral to the distinctive pre-contact Aboriginal society.

3.         Third, determine whether the claimed modern right has a reasonable degree of continuity with the “integral” pre-contact practice.  In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice?  At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right.  As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.

4.        Fourth, and finally, in the event that an Aboriginal right to trade commercially is found to exist, the court, when delineating such a right should have regard to what was said by Chief Justice Lamer in Gladstone (albeit in the context of a Sparrow justification), as follows:

Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard.  In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.  [Emphasis in the original; para. 75.]

See also R. v. Marshall, [1999] 3 S.C.R. 533, at para. 41.

[47]                          In my view the trial judge proceeded correctly in her approach to characterization of the claim based on the pleadings and this ground of appeal should be rejected.

B.   Did the Trial Judge Err in Refusing to Consider a Modern Commercial Fishery to be the Logical Evolution of a Pre-Contact Trade in Eulachon Grease?

[48]                          The trial judge interpreted the pleadings as a single claim to an existing Aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982, “to harvest and sell on a commercial scale all species of Fisheries Resources in the Claimed Territories” (para. 97).  Although the Lax Kw’alaams sought two distinct and separate declarations, the fusion into a single claim for declaratory relief made by the trial judge was quite appropriate.  There can be no sale without a prior harvesting of the fish and the whole point of harvesting the fish, according to the Second Amended Statement of Claim, was for commercial sale.  The two elements of the claim are inextricably tied together.

[49]                          If established, an Aboriginal right is not frozen at contact, but is subject to evolution both in terms of the subject matter and the method of its exercise, depending on the facts.

[50]                          In terms of the mode of exercise, the courts have repeatedly recognized that fishing methods continue to evolve.  The Aboriginal source of fishing rights does not require rights holders in the Pacific Northwest to fish from dugout canoes.  Pre-contact trade in Pacific smoked salmon (if established) should not exclude preparation and sale of the frozen product when the technology became available.  (All of this, of course, is subject to the interest of conservation and other substantial and compelling interests:  Sparrow, at pp. 1108-1110; and N.T.C. Smokehouse, at para. 96.)

[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.

[52]                          The trial judge was satisfied that the ancestors of the Lax Kw’alaams “harvested a wide variety of Fish Resources and Products through an array of fishing techniques.  They have proved that the harvesting and consumption of Fish Resources and Products, including the creation of a surplus supply for winter consumption, was an integral part of their distinctive culture” (para. 494 (emphasis added)).  She further found

that the pre-contact Coast Tsimshian existed primarily within a subsistence economy until the arrival of the fur traders who influenced the creation of trade monopolies and chiefdoms [although they were also] involved in some form of loosely termed trade before the date of contact.  This trade involved primarily gift exchange between kin at feasts and potlatches, or exchange of luxury goods such as slaves, coppers, dentalium and eulachon grease.  [para. 495]

However, and this is the crucial point, the trial judge held that “trade in any other Fish Resource or Product beside eulachon grease” (ibid. (emphasis added)) could not be described as integral to their distinctive culture.  Such sporadic trade as took place in other fish products was peripheral to the pre-contact society and did not define what made Coast Tsimshian society what it was.

[53]                          The Lax Kw’alaams argue that such sporadic trade in other fish products was nonetheless part of their ancestral “way of life” and, on that account, they should be allowed to continue to engage in trade in fish generally under the protection of s. 35(1) of the Constitution Act, 1982.  In other words, the Lax Kw’alaams’ argument is that proof of even sporadic trade as part of pre-contact society is sufficient to support a modern trading right in “all species of fish” and that the test applied by the trial judge is too strict.  It should be enough to show that trade was part of their ancestors’ pre-contact “way of life” whether or not “distinctive” or “integral” as required by Van der Peet.

[54]                          The Lax Kw’alaams place reliance on references to “way of life” in Sappier, at paras. 24 and 40.  However, the reference in Sappier to a pre-contact “way of life” should not be read as departing from the “distinctive culture” test set out in Van der Peet, where Chief Justice Lamer stated:

To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part.   The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture.   He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive — that it was one of the things that truly made the society what it was.  [First emphasis added; second emphasis in original; para. 55.]

The trial judge found on the facts that the Lax Kw’alaams had not met this threshold.

[55]                          Counsel for the Lax Kw’alaams argues that, even if pre-contact trade had been limited to eulachon grease (which they deny), the modern right should not be “frozen” but should be generalized and “evolved” to include all other fish species and fish products.

[56]                          However, such an “evolution” would run counter to the trial judge’s clear finding that the ancestors of the Lax Kw’alaams fished all species but did not trade in any significant way in species of fish or fish products other than eulachon.  Extension of a modern right to all species would directly contradict her view that only the “species specific” trade in eulachon grease was integral to the distinctive culture of the pre-contact society.  A general commercial fishery would represent an outcome qualitatively different from the pre-contact activity on which it would ostensibly be based, and out of all proportion to its original importance to the pre-contact Tsimshian economy.

[57]                          The “species specific” debate will generally turn on the facts of a particular case.  Had it been established, for example, that a defining feature of the distinctive Coast Tsimshian culture was to catch whatever fish they could and trade whatever fish they caught, a court ought not to “freeze” today’s permissible catch to species present in 1793 in the northwest coastal waters of British Columbia.  As the oceans have warmed, new species have come north from southern waters and the migratory pattern of some of the old species may have shifted towards Alaska.  To ignore the evolution of the fisheries resources of the Pacific Northwest would be uncalled for in the absence of some compelling reason to the contrary on the particular facts of a particular case, as in the debate about geoduck harvesting in Ahousaht Indian Band v. Canada (Attorney General), 2011 BCCA 237, 19 B.C.L.R. (5th) 20, a debate on which I express no opinion.  However, this example, it seems to me, is very different from the situation we have here, where trade was an exception to the general sustenance fishery and the only subject matter of trade was eulachon grease.

[58]                          The trial judge made no findings regarding the quantity of eulachon grease traded in those ancient times (and presumably had no means of doing so given the lack of evidence), but it may be assumed that, given the very short eulachon fishing season and the laborious method of extraction of the grease previously described, the quantities were small relative to the overall pre-contact fishing activity of the industrious and productive Coast Tsimshian peoples.  Accordingly, to extrapolate a modern commercial fishery from the pre-contact trade in eulachon grease would lack proportionality in quantitative terms relative to the overall pre-contact fishing activity as well.

[59]                          The trial judge concluded that transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be “evolution” but the creation of a different right.  On that basis, the claim failed both the integrality and continuity requirements of the Van der Peet test.  These findings were supported by the evidence.

C.  Did the Trial Judge Err in Refusing to Make a Declaration in Relation to “Lesser and Included Rights”?

[60]                          The Lax Kw’alaams seek a declaration of “lesser included” Aboriginal rights to harvest fish of all species for consumption and sale “to sustain their communities and generate wealth and maintain and develop their economy” (A.F., at paras. 92 and 136(b)(ii)).  The Lax Kw’alaams also seek a declaration of entitlement to a s. 35(1) right to a food, social and ceremonial fishery (A.F., at para. 136(b)(iii)).

[61]                          The categories of fishery are thus portrayed as falling along a spectrum with a subsistence food fishery at the bottom end and a full commercial fishery at the top end.  Where this “lesser” commercial-type fishery falls on the spectrum is not altogether clear.  In their final written argument at trial the Lax Kw’alaams characterized the lesser right as “a right to harvest all species of Fisheries Resources in the Lax Kw’alaams Territory, for the purpose of selling those Fisheries Resources and their products, on a commercial scale, to sustain the Lax Kw’alaams communities accumulate and generate wealth” (Second Amended Statement of Claim, at para. 92 (emphasis added)).  It is therefore a “lesser” right but nevertheless a commercial right, albeit on a more modest scale.  How much more modest is not clear.  The Lax Kw’alaams particularized the “amount of Fisheries Resources that the Plaintiffs need to sustain their communities” as “depending on a number of factors including availability of stocks and availability of markets for their Fisheries Resources.  The Plaintiffs require enough Fisheries Resources which, when converted to money, will enable the communities to develop and maintain a prosperous economy” (Amended Response, at para. 57(c)).

[62]                          It seems to me that by rejecting the claim to the “greater” commercial fishery on the basis that trade in fish other than eulachon was not integral to pre-contact society, the trial judge was equally required to reject a “lesser” commercial right to fish “all species”.  Her problem on this branch of the argument was not only the scale of the commercial fishery but whether and to what extent “trade” in the pre-contact period could support any sort of modern commercial fishery — whether full scale or “lesser” in scope.  Her conclusion that trade in fish apart from eulachon grease was not integral to Coastal Tsimshian pre-contact society was as fatal to the lesser commercial claim as it was to the greater commercial claim.

[63]                          In any event the trial judge stated that “neither party led evidence regarding any pre-contact [practice] of sustaining the community through trade on any scale” (para. 102).

[64]                          In the trial judge’s view, “it is relevant to the fairness of the proceedings that a party not introduce, at the stage of final submissions, new issues that were not properly the subject of adjudication” (ibid.).  The Attorney General of Canada contends that the Lax Kw’alaams’ attempt to re-cast their claim in final argument was unfair because:

(i)            Rights to fish for sale on a lesser commercial scale were not advanced until final oral argument.  The Lax Kw’alaams’ opening submissions, written and oral, were directed to fishing for commercial purposes.

(ii) The Particulars provided by counsel for the Lax Kw’alaams, were directed to “commercial scale” fishing, defined as “exchange of Fisheries Resources for money, goods or services, on a large scale” (Amended Response, at para. 54(d) (italics added))

(iii)            The retainer letters to three of the Lax Kw’alaams experts sought their respective opinion in relation to “access to fisheries resources for commercial purposes”.

(iv)            The lay and expert witness evidence was led in relation to a full scale commercial fishing.

This is not altogether surprising.  Counsel for the Kw’alaams may have concluded that to appear to dwell on lesser claims might signal to the court a lack of confidence in their clients’ prospects of success in the claim to a full commercial fishery.  It is never a wise practice to push a back-up argument at the expense of the primary claim, and counsel should not be faulted for pursuing a time-honoured strategy, if indeed that is what they were up to.

[65]                          Nevertheless, quite apart from the Attorney General’s procedural objections, there remained the problem of what exactly the trial judge was expected to say in the declaration of “lesser rights”.  Nothing in the prayer for relief in the Second Amended Statement of Claim suggested a wording for the declaration of a “lesser” commercial right and no precise wording for a declaration in that regard was proposed by counsel during argument in this Court or, it seems, in the courts below.

[66]                          The “lesser” claim bristled with difficulty.  It was for access to sufficient fish which, “when converted to money”, would enable the Lax Kw’alaams to “develop and maintain a prosperous economy” (Amended Response, at para. 57(c)).  What does this mean? How would governments responsible for its implementation go about implementing it?  Quite apart from the pleadings and other more substantive objections, no guidance was provided as to what standard of prosperity the Lax Kw’alaams sought or the basis on which such a standard would be quantified.  The claimed “right” to enough fish to guarantee a “prosperous economy” has very far-reaching implications for fisheries management.  A Sparrow justification is only required once a s. 35(1) right has been established.  It is at the establishment stage that the Lax Kw’alaams’ claim presented difficulties which, in my opinion, the trial record did not oblige the trial judge to resolve.

[67]                          This is not like a treaty case where the court may be obliged to interpret its terms — however vague — because that is what the parties agreed to.  Here nothing in this respect has been agreed to.  The economic implications of even a “lesser” commercial fishery could be significant, and the Crown is entitled to proper notice of what “declaration” it was supposed to argue about and to test the evidence directed to that issue.

[68]                          In summary, the Lax Kw’alaams’ claim to a declaration of an aboriginal right to a “lesser” commercial fishery was properly rejected, in my opinion.

D.  Did the Trial Judge Err in Failing to Award a Commercial Fishery Licence on the Basis of the Honour of the Crown?

[69]                          The Lax Kw’alaams argued that the Crown had an implied obligation to preserve their access to a commercial fishery on a preferential basis as a result of Crown promises, express or implied, made during the reserve allotment process.  They contended that the Crown’s express grant of fishing station reserves to the Coast Tsimshian — when interpreted in the light of the historical context and the Crown’s policy, purpose, and representations made during the allotment process — gave rise at least to an implied right to commercial fishing opportunities for the Lax Kw’alaams.  The Crown’s purpose behind allotting fishing station reserves, they suggest, was to encourage coastal tribes to rely on the commercial fishery as their primary means of livelihood, as evidenced in an 1875 memorandum written by B.C. Attorney-General George Walkem and the instructions given by Canada to its Reserve Commissioner Peter O’Reilly.

[70]                          As stated earlier, the trial judge found that no express promise had been made of any preferential access to the commercial fishery (paras. 515-18 and 525).

[71]                          As to implied promises, the Lax Kw’alaams cite this Court’s judgment in R. v. Marshall, [1999] 3 S.C.R. 456.  In that case the claimant was charged with a series of offences related to harvesting and selling eels.  At issue was an eighteenth century peace treaty between the Mi’kmaq and the Crown pursuant to which the former agreed to trade exclusively at British truckhouses.  In his defence, Mr. Marshall argued that his treaty right exempted him from theFisheries Act regulations.  There was no doubt about the existence of the treaty; the issue was one of treaty interpretation.  A majority of the Court held that the treaty must be interpreted in a manner that “gives meaning and substance to the promises made by the Crown” (para. 52).  It would be unreasonable to interpret the treaty to confer a trading right while withholding access to the resources it was contemplated would be traded.  Accordingly, there was by necessity an implied promise to allow the Mi’kmaq to fish for trading purposes to buy “necessaries” (paras. 59 and 66).  The Court was obliged to give meaning to the word “necessaries” which had been agreed in the 1760-61 treaty negotiations.

[72]                          Here there is no treaty.  The trial judge held there was no promise.  The Crown, she found, never intended in the process of allocating reserves to grant the Lax Kw’alaams preferential access to the fishery.  They were to be treated in the same manner as other fishers.  She found that this intention was made clear to the Lax Kw’alaams and that the Crown never made any undertaking by word or conduct to the contrary (paras. 515 and 517).  The Lax Kw’alaams’ arguments based on fiduciary duties or the honour of the Crown necessarily fail in the absence of any substratum of relevant facts on which to base them.

VI. Disposition

[73]                          Large amounts of time and resources were dedicated to a year-long trial to determine the commercial fisheries issue.  Notwithstanding the facts that the people of the Coast Tsimshian have deep roots in the coastal fishery of what is now British Columbia, the evidence satisfied the trial judge that they were not a trading people, except in the limited area of species specific eulachon grease.  This is not to say the Lax Kw’alaams are without s. 35(1) rights.  Their claim to Aboriginal title remains outstanding.  In the meantime, as the record shows, they possess an Aboriginal fishing licence to take fish for food and ceremonial purposes.

[74]                          The appeal must be dismissed but, as in the courts below, without costs.

APPENDIX

GINAXANGIIK TRIBE

GITANDOAH TRIBE

GITWILGIOTS TRIBE

GIT’TSIIS TRIBE

GITNADOIKS TRIBE

GISPAXLOATS TRIBE

GITLAN TRIBE

GITZAXLAAL TRIBE

GITLUTZAU TRIBE

Appeal dismissed.

Solicitors for the appellant:  Ratcliff & Company, North Vancouver.

Solicitor for the respondent the Attorney General of Canada:  Department of Justice, Vancouver.

Solicitor for the respondent Her Majesty The Queen in Right of the Province of British Columbia:  Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitors for the intervener the Metlakatla Band:  Mandell Pinder, Vancouver.

Solicitor for the interveners the B.C. Wildlife Federation and the B.C. Seafood Alliance:  J. Keith Lowes, Vancouver.

Solicitors for the intervener the Gitxaala Nation:  Woodward & Company, Victoria.

Solicitors for the intervener the Te’Mexw Treaty Association:  Janes Freedman Kyle Law Corporation, Victoria.

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