The question of the right of the native people over land use has been an issue of discussion over the past years. The US constitution allows Native Americans to use the lands for beneficial purposes, which may be economic. However, the federal government restricts the use of the land to some specific uses. Disputes have arisen in the past between the federal government and native Americans on the use of native land. These cases have taken different turns in the American judicial system, with victory going on both sides in different instances. The case of interest for this paper is the Lax kw’alaam vs. Canada in a fishery dispute. This paper seeks to analyze the case and discuss whether the decision was just.
The case is an appeal to the supreme court of Canada by the Indian band, who sought their rights as native landowners to be preserved by being allowed to trade in specific fish species. This case was brought over after the fisheries regulatory board had sued the Indian band for the exhaustion of the fisheries (Friedland, 2012). The Indian band mainly traded in a single species of fish, leading to its exhaustion. The fisheries regulatory board took action to protect this fish species from being completely faced off by this native community. When the reserves were sufficient to allow for fishing, the native group would continue their fishing activities.
The court ruled against the Indian band, claiming that the sale of a single species of fish, though a culture of the native community, was not a justification to exhaust that species in the fisheries. The court also held that the native members had the right to use the fisheries to their advantage but did not give them preferential rights (Wilkins, 2012). The court clarified that there has to be an understanding between the federal government and the native community about the use of the fishery. The fishery was the federal government’s property as it was their property. To determine whether the court’s decision was right, it is important to assess whether the Indian band had native rights to the land and whether their culture of trading in a single species was worth upholding.
Indian band’s chief claim was that they had native rights over the fisheries, and there were supposed to use the land for any economic benefits. Understanding who determines which people have the indigenous right over land was important in understanding this case. The supreme court had decided on several cases involving the claim to native rights to the land. In almost all of these cases, the court’s decision was mainly based on the offense the person was being charged with rather than the fact that the suspect had the right to claim the use of the land. According to the supreme court, those who had native rights over land in America inhabited the place before the coming of the Europeans (Wilkins, 2012). Concerning the court’s take on native rights, the Indian band had no indigenous right over the fisheries since they inhabited the land after the coming of the Europeans.
However, another confusing aspect is whether the native right to the land can change over time or be transferred to another community that lived on the land just after America gained independence. The coming of the Europeans caused the displacement of several communities in America. After they left, there was a redistribution of communities in America (Cave, 2019). This led to different communities gaining native rights over the land they did not initially own. According to this concept of native rights to land after the Europeans, the Indian band had native rights.
On the other hand, another perspective of observing the case was the action the convict was charged with. The offender was charged with illegal trade of a specific fish species after the fisheries board had restricted fishing on that species of fish. The felon was guilty of trading in this species since the evidence found was concrete as he was found selling the fish at 50 dollars each. If the offender were found using the fisheries for food, the case would have been different (Cave, 2019). The fish required for economic and food persons differs, as economic mainly involves large-scale fishing. The offender might have native rights over the fisheries, allowing their use. However, using the fisheries for economic purposes when the restriction was already in place was a serious offense and the offender should either be convicted or fined.
In conclusion, according to the view of native landowners living in the place after the European left, the Indian band had native rights over the land. However, in the aspects of native landowners living on the land before the coming of the Europeans, the Indian band had no native right to the land. Considering the offense at hand, the Indian band was guilty of having used the fisheries when the fisheries regulating board had restricted land use. Fishing for economic purposes only makes the charges have more grounds. Discussions are continuing in America about whether native rights should be abolished because some native cultures are affecting biodiversity. A perfect example is the Lax kw’alaam vs. Canada case.
References
Cave, J. (2019). From Rights Recognition to Reconciliation: Reflecting on the Government of Canada’s Proposed Indigenous Rights Recognition Framework. University of Toronto Faculty of Law Review, 77, 59. Web.
Friedland, H. (2012). Lax Kw’alaams Indian Band vs. Canada. Indigenous Law Journal at the University of Toronto, Faculty of Law, 11(12), [v]. Web.
Wilkins, K. (2012). Whose Claim Is It, Anyway – Lax Kw’alaams Indian Band v. Canada (A.G.), 2011 SCC 56, [2011] 3 SCR 535. Indigenous Law Journal at the University of Toronto, Faculty of Law, 11, 73. Web.