Extinguishment by extirpation : the Nuxalk eulachon crisis
University of British Columbia
Master of Laws - LLM
De facto extinguishment of Aboriginal rights occurs when Aboriginal peoples are factually precluded from practicing their rights. While the Supreme Court of Canada has established that de facto extinguishment of constitutionally protected Aboriginal rights is an infringement of those rights, its acceptance of sweeping Canadian interests as valid objectives to justify the infringement of Aboriginal rights means the recognition of those rights provides limited protection. This thesis analyzes the nature of Aboriginal rights in Canadian legal system through an examination of the extirpation of eulachon from Nuxalk territory. It describes Nuxalk legal order prior to European arrival in Nuxalk territory, and the imposition of colonial laws to the detriment of Nuxalk sovereignty, territory, and people. It investigates the management of fisheries under Canadian law to show the inefficiencies of the fragmented Canadian legal system. An analysis of Canadian jurisprudence demonstrates that section 35(1) Aboriginal rights have minimal protection under the Canadian legal regime. A consideration of Nuxalk concerns regarding the Species at Risk Act indicates that the consultation doctrine has hindered the protection of Aboriginal rights. A review of the honour of the Crown in relation to Aboriginal rights suggests that fiduciary duties are confined to exceptional circumstances, and effectiveness of lesser obligations remains uncertain. This thesis concludes that the current state of Canadian law leaves the Nuxalk people with little prospect for any meaningful resolution to the eulachon crisis under the Canadian legal system. If Aboriginal rights are to have any substance under Canadian law, courts and governments must acknowledge the existence of these rights on a broader scale. Reconciliation requires the recognition and affirmation of Indigenous sovereignty by the Canadian legal system.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of