The Lax Kw'alaams Indian Band claimed an Aboriginal right to the commercial harvesting and sale of all species of fish within their traditional waters, arguing this right evolved from their pre-contact practices.
The trial judge found that while the pre-contact society relied heavily on fishing for sustenance, their only significant trade was in eulachon grease, and trade in other fish was not integral to their distinctive culture.
The Supreme Court of Canada dismissed the appeal, holding that a modern commercial fishery in all species lacked sufficient continuity and proportionality with the pre-contact trade in eulachon grease.
The Court also affirmed that Aboriginal rights claims must be characterized based on the pleadings, rejecting a 'commission of inquiry' approach to determining pre-contact practices.
