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Top Five 2012: Lax Kw’alaams Indian Band v Canada (Attorney General)

Each year at OJEN’s Toronto Summer Law Institute, a judge from the Court of Appeal for Ontario identifies five cases that are of significance in the educational setting. This summary, based on these comments and observations, is appropriate for discussion and debate in the classroom setting.

Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56

In this case, the Supreme Court of Canada (SCC) considered the evolution of treaty rights of Canada’s Aboriginal Peoples as set out in section 35(1) of the Constitution Act. The SCC ruled that the Band did not have an Aboriginal right to a modern day commercial fishery under s. 35(1). The Court found that the Band’s ancestral trade focused almost exclusively on a single species of fish. On this basis, the Court ruled that the Band had not made the case for a broad Aboriginal right to harvest and sell all fish species within their ancestral waters. This SCC decision drew upon the longstanding principle that, in order for a practice, custom, or tradition to be protected as an Aboriginal right, there must be evidence that it was an integral part of the distinctive society of the Aboriginal group prior to contact with European settlers. The result was that the SSC set out a new step for dealing specifically with claims regarding large scale commercial activity. The full decision is available here.

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