Lax Kw'alaams Indian Band v. Canada (Attorney General) [2011] 3 SCR 535

The Lax Kw'alaams and other First Nations claimed an Aboriginal right to harvest all species of fish commercially from their traditional waters between the estuaries of the Nass and lower Skeena rivers in British Columbia. The evidence revealed that, although the plaintiffs engaged in some pre-contact exchange of various species of fish and other seafood, the only product from the sea that they traded commercially as an integral part of their distinctive culture was the grease from eulachon, a smelt like species. The Supreme Court held that commercial trade in eulachon grease could not be a basis for a broader right to trade any species of fish. There was a lack of continuity and proportionality between a commercial practice of trading eulachon grease and trading other fish. This decision, along with R. v. Van der Peet (1996), demonstrates the difficulty Indigenous Peoples have in establishing Aboriginal commercial rights beyond specific and limited species. See also R. v. Gladstone (1996, herring spawn on kelp) and R. v. Sappier: R. v. Gray (2006, harvesting wood for domestic purposes, but not for trade or sale). Compare Ahousaht Indian Band and Nation v. Canada (Attorney General) (2011-2018).