R. v. Nikal

R. v. Nikal
Collection
Supreme Court Judgments
Date
1996-04-25
Report
[1996] 1 SCR 1013
Case number
23804
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Aboriginal law
Notes
SCC Case Information: 23804
Decision Content
R. v. Nikal, [1996] 1 S.C.R. 1013
Jerry Benjamin Nikal Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of British Columbia,
the Attorney General for Alberta, the
Alliance of Tribal Councils, Delgamuukw et al.,
the Fisheries Council of British Columbia,
the Canadian National Railway Company,
the BC Fisheries Survival Coalition
and the BC Wildlife Federation Interveners
Indexed as: R. v. Nikal
File No.: 23804.
1995: November 30; 1996: April 25.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Indians ‑‑ Aboriginal rights ‑‑ Fishing rights ‑‑ Appellant charged with fishing without a licence ‑‑ Whether licensing scheme infringing appellant's aboriginal rights and therefore not applying to him ‑‑ Constitution Act, 1982, ss. 35(1) , 52 ‑‑ British Columbia Fishery (General) Regulations, SOR/84‑248, s. 4(1).
Appellant is a native charged with fishing without a licence contrary to s. 4(1) of the British Columbia Fishery (General) Regulations. Native persons, although required to have a licence, were entitled to a free permit to fish for salmon in the manner they preferred. Appellant had been gaffing salmon in the Bulkley River where it flows through his reserve. He took the position that the licensing scheme infringed his aboriginal rights as provided in s. 35(1) of the Constitution Act, 1982 and was therefore inapplicable. He further contended that the river is, at this point, part of his reserve so that only the band by‑law, which allowed band members unrestricted fishing in the river, applied.
Appellant was acquitted at trial and the acquittals were upheld by the Summary Conviction Appeal Judge. The acquittals were set aside by the Court of Appeal. The constitutional question before this Court queried whether s. 4(1) of the Regulations and licences issued under it were of no force or effect with respect to the appellant in the circumstances by reason of the aboriginal rights protected by s. 35 of the Constitution Act, 1982 . In essence, two issues are raised: (1) whether the band's fishing by‑law applies to the Bulkley River where it flows through the band's reserve, and (2) whether the licence requirement under s. 4(1) of the Regulations infringes the appellant’s aboriginal rights contrary to s. 35 .
Held (L'Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Historical documents available to the public were relied on. All parties had an opportunity to review and make submissions pertaining to them.
The Crown did not intend to grant an exclusive fishery to the band when it created the reserve. Reserve commissioners were not given authority to bind the Crown and were instructed not to assign fishing rights irrevocably and absolutely. The Crown's policy against the granting of exclusive fisheries to the Indians was often and forcefully stated. No evidence supported the position that the Department of Indian Affairs had intended to grant the bands exclusive fisheries but the Department of Marine and Fisheries overrode this intention in an inter‑departmental jurisdiction dispute. Notwithstanding the band's claim that it was misled as to the grant of an exclusive fishery, the facts surrounding this particular grant considered in light of the expressed general policy indicate an intention to allot only the land of the reserve and not the river.
The portion of the river flowing through the reserve (with the reserve on both sides) does not form part of the reserve through operation of the doctrine of ad medium filum aquae to non‑navigable water. This doctrine, assuming without deciding that it should apply in Canada, does not apply for three reasons. First, it only applies to non-navigable rivers and the Bulkley River, taking into account its entire length, should be considered to be navigable. Secondly, when the reserve was created at common law the fishery was a right severable from the title to the river bed. Ownership of the river bed had no effect on the fishery as the Crown specifically refused to grant an exclusive fishery to the band. Thirdly, even if the presumption could be said to apply, it was rebutted in light of the evidence that the Crown never allotted nor intended to allot the river bed to the band.
The onus of establishing a prima facie infringement of an aboriginal right rests on the person claiming that right. The existence and the extent of the aboriginal right must first be established. The right established was to fish for food and ceremonial purposes and to provide members of the band with fish necessary for personal food and ceremonial needs but no position was taken as to whether the right extends beyond that. The appellant had no right not to comply with the directions of the Department of Fisheries and Oceans.
A prima facie infringement of an aboriginal right does not necessarily occur if something should affect that right. Rights do not exist in a vacuum and the ability to exercise personal or group rights is necessarily limited by the rights of others. The government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom without any restriction is not an acceptable concept in our society.
The aboriginal right to fish must be balanced against the need to conserve the fishery stock. This right cannot automatically deny the ability of the government to set up a licensing scheme or program as part of a conservation program since the right's exercise depends on the continued existence of the resource.
Only aboriginal peoples can exercise aboriginal rights. The nature and scope of these rights will frequently be dependant upon membership in particular bands who have established particular rights in specific localities. In this context, a licence may be the least intrusive way of establishing the existence of an individual's aboriginal right as well as preventing non-aboriginals from exercising aboriginal rights.
Conditions of the licence can infringe the rights guaranteed by s. 35 of the Constitution Act, 1982 . The test established in Sparrow requires: (1) an assessment of whether the legislation in question has the effect of interfering with an existing aboriginal right, and if so, whether that effect represents a prima facie infringement of s. 35(1) ; and, (2) a determination of whether the limitation is unreasonable, imposes an undue hardship or denies holders of the right the preferred means of exercising the right. The onus of proving a prima facie infringement lies on the individual or group challenging the legislation.
The licence, as distinct from its conditions, does not constitute an infringement of s. 35(1) . The simple requirement of a licence is not in itself unreasonable; rather, it is necessary for the exercise of the right itself. A licence which is freely and readily available cannot be considered an undue hardship for that term implies more than mere inconvenience. The licence by itself, without its conditions, cannot affect the preferred means of exercising the right since it is nothing more than a form of identification.
The government must justify those conditions of a licence which on their face infringe the s. 35 right to fish. The infringing conditions of the 1986 licence are: (i) the restriction to fishing for food only; (ii) the notations providing that fishing time was subject to change by public notice and that Indian food fishing outside set dates must be licensed by the Provincial Fish and Wildlife Conservation Officer; (iii) the restriction to fishing for the fisher and his or her family only; and (iv) the restriction to fishing for salmon only. These conditions are prima facie infringements of the appellant’s aboriginal rights: (i) to determine band members who will receive the fish for ultimate consumption; (ii) to select the use (food, ceremonial or religious) of the fish; (iii) to fish for steelhead; and, (iv) to choose the period of time to fish in the river. Other terms of the licence could be infringements if they contradicted the appellant's aboriginal rights. These terms provide for: (i) the prescribed waters in which fishing can take place; (ii) the type of gear which can be used; and, (iii) the fishing times and days. Non‑enforcement does not result in these conditions being valid. The holder of a constitutional right need not rely upon the exercise of prosecutorial discretion and restraint for the protection of the right.
Sparrow set out questions to be addressed in determining if an infringement of aboriginal or treaty rights could be justified: (1) whether there was a valid legislative objective; and if so (2) whether the honour of the Crown and the special trust relationship and the responsibility of the government vis‑à‑vis aboriginals was at stake. Further questions might arise depending on the circumstances of the inquiry: whether there had been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation was available, and whether the aboriginal group in question had been consulted with respect to the conservation measures being implemented. The concept of reasonableness forms an integral part of the Sparrow test for justification.
Reasonableness must come into play in aspects of information and consultation. Regulations pertaining to conservation may have to be enacted expeditiously, however, if a crisis is to be avoided. The nature of the situation will have to be taken into account.
The government adduced no evidence to justify the conditions of the licence and accordingly did not meet its onus to do so. The licence and its integral conditions are an indivisible whole. The conditions, even if they could be considered separately, were not severable.
Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): The requirement of a licence did not constitute a prima facie infringement of the appellant's constitutionally protected right to fish for food.
The issue before the Court was whether the act of licensing per se was unconstitutional and not whether the conditions attached to the licence were unconstitutional. The charge of failing to obtain a validly required licence must be distinguished from breach of one of the conditions of the licence. The invalidity of licence conditions does not excuse a person from obtaining the licence required by law even if the conditions are "integral" to the licence.
Cases Cited
By Cory J.
Applied: R. v. Sparrow, [1990] 1 S.C.R. 1075; Keewatin Power Co. v. Kenora (Town) (1906), 13 O.L.R. 237; considered: Flewelling v. Johnston (1921), 59 D.L.R. 419; referred to: Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97, rev'g [1991] 3 W.W.R. 97; R. v. Sioui, [1990] 1 S.C.R. 1025; Re Iverson and Greater Winnipeg Water District (1921), 57 D.L.R. 184; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Re Coleman and Attorney-General for Ontario (1983), 143 D.L.R. (3d) 608; Marshall v. Ulleswater Steam Navigation Co. (1863), 3 B. & S. 732, 122 E.R. 274; Holford v. Bailey (1846), 8 Q.B. 1000, 115 E.R. 1150, rev'd on other grounds (1850), 13 Q.B. 426, 116 E.R. 1325; R. v. Agawa (1988), 65 O.R. (2d) 505; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Sharma, [1993] 1 S.C.R. 650; R. v. Bob (1991), 88 Sask. R. 302; Schachter v. Canada, [1992] 2 S.C.R. 679; Norton v. Shelby County, 118 U.S. 425 (1886); Air Canada v. British Columbia, [1989] 1 S.C.R. 1161.
By McLachlin J. (dissenting)
Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Act respecting the extension and application of "The Fisheries Act," to and in the Provinces of British Columbia, Prince Edward Island and Manitoba, S.C. 1874, c. 28.
British Columbia Fishery (General) Regulations, SOR/84-248, s. 4(1).
Canadian Charter of Rights and Freedoms, ss. 1 , 6(1) .
Constitution Act, 1982, ss. 35(1) , 52 .
English Law Ordinance, 1867, S.B.C. 1867, No. 70, s. 2 [now Law and Equity Act, R.S.B.C. 1979, c. 224, s. 2].
Fisheries Act, R.S.C., 1985, c. F‑14 (formerly R.S.C. 1970, c. F-14).
Fisheries Act, S.C. 1868, c. 60.
Gitksan‑Wet’suwet’en Indian Fishing By‑Law, SOR/86‑612, ss. 2, 3, 4.
Indian Act, R.S.C., 1985, c. I‑5, s. 81(1) (o) [am. c. 32 (1st Supp.), s. 15(3) ] (formerly R.S.C. 1970, c. I-6 [am. S.C. 1985, c. 27, s. 15.1(2)]).
North-West Territories Act, R.S.C. 1886, c. 50, s. 11.
Authors Cited
Coulson, H. J. W., and Urquhart A. Forbes. The Law relating to Waters, 2nd ed. London: Sweet and Maxwell, 1902.
La Forest, Gérard V. Water Law in Canada -- The Atlantic Provinces. Ottawa: Information Canada, 1973.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 245, [1993] 5 W.W.R. 629, [1993] 4 C.N.L.R. 117, 33 B.C.A.C. 18, 54 W.A.C. 18, allowing the Crown's appeal from a decision of the British Columbia Supreme Court (1990), 51 B.C.L.R. (2d) 247, [1991] 2 W.W.R. 359, [1991] 1 C.N.L.R. 162, 5 C.R.R. (2d) 118, upholding the acquittal of the accused by Smyth Prov. Ct. J., [1989] 4 C.N.L.R. 143, on a charge of fishing without a licence. Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.
Peter R. Grant, David Paterson and Peter W. Hutchins, for the appellant.
S. David Frankel, Q.C., and Cheryl J. Tobias, for the respondent.
Paul J. Pearlman, for the intervener the Attorney General of British Columbia.
Robert J. Normey, for the intervener the Attorney General for Alberta.
Arthur C. Pape, for the intervener the Alliance of Tribal Councils.
Michael Jackson, for the interveners Delgamuukw et al.
J. Keith Lowes, for the intervener the Fisheries Council of British Columbia.
Patrick G. Foy, for the intervener the Canadian National Railway Company.
Christopher Harvey, Q.C., for the interveners the BC Fisheries Survival Coalition and the BC Wildlife Federation.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
I. Cory J. -- The appellant is a Wet’suwet’en Indian of the Moricetown Band. He lives in the village of Moricetown which is within the boundaries of Moricetown Reserve No. 1. The reserve comprises lands on both sides of the Bulkley River. On July 20 and 23, 1986, officers of the Department of Fisheries and Oceans watched the appellant gaff salmon in the Bulkley River at Moricetown. When he was asked for his licence he stated that he did not have one. He was then charged with fishing without a licence contrary to s. 4(1) of the British Columbia Fishery (General) Regulations, SOR/84‑248. The Regulations provided that Indian people were entitled to a free permit to fish for salmon in the manner they preferred.
II. The appellant took the position that the Fisheries Act, R.S.C., 1985, c. F‑14 (formerly R.S.C. 1970, c. F‑14), and Regulations did not apply to him as the licensing scheme infringed his aboriginal rights as provided in s. 35(1) of the Constitution Act, 1982 . The section is found in Part II of that Act, entitled “Rights of the Aboriginal Peoples of Canada”, and reads:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The appellant further contended that the Bulkley River is, at this point, part of the Moricetown Reserve and that as a result he was bound solely by the band by‑law as it pertains to fishing in the river.
III. At trial on May 29, 1989, Smyth Prov. Ct. J. acquitted the appellant of the charges. On appeal, the Summary Conviction Appeal Justice Millward J. upheld the acquittals, but on different grounds. On further appeal to the British Columbia Court of Appeal, a majority of the court (Lambert and Hutcheon JJ.A. dissenting) set aside the acquittals and entered convictions on the charges.
Issues
IV. By order of the Chief Justice the following constitutional question was stated:
Is s. 4(1) of the British Columbia Fishery (General) Regulations, SOR/84-248, as it read in July of 1986, and licences issued thereunder, of no force or effect with respect to the appellant in the circumstances of these proceedings, by virtue of s. 52 of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982 invoked by the appellant?
V. The appellant and respondent have agreed that two issues are raised in this appeal. The first is whether the fishing by-law of the Moricetown Band applies to the Bulkley River at Moricetown. The second is whether the licence requirement under s. 4(1) of the British Columbia Fishery (General) Regulations infringes the appellant’s aboriginal rights, contrary to s. 35 .
The Band By‑Law
VI. Section 81(1) (o) of the Indian Act, R.S.C., 1985, c. I‑5 (formerly R.S.C. 1970, c. I‑6), provides:
81.(1) The council of a band may make by‑laws . . . for any or all of the following purposes, namely,
. . .
(o) the preservation, protection and management of fur‑bearing animals, fish and other game on the reserve.
VII. Pursuant to that provision, the Moricetown Band Council passed a by‑law which provided in part as follows:
Gitksan‑Wet’suwet’en Indian Fishing By‑Law, SOR/86‑612
2. The following definitions apply in this By‑Law:
. . .
r) “Waters of the Bands” means all water, waterways, rivers or streams which are located upon, or within boundaries of the reserves set aside for the use and benefit of the Moricetown Band.
3. This By‑Law applies in respect and over all waters of the Band.
4. a) Gitksan‑Wet’suwet’en persons are permitted to engage in fishing in waters of the Bands at any time and by any means. . . .
Whether or not the by‑law could be applied to the Bulkley River will depend on whether that river forms part of the reserve.
Reasons of the Courts Below
Trial, [1989] 4 C.N.L.R. 143
VIII. Smyth Prov. Ct. J. began by considering the band’s by‑law. He noted that the Crown had conceded that if the by‑law applied to the Bulkley River, it would take priority over the Fisheries Act and the Regulations. Section 81(1) (o) of the Indian Act authorized the band to make by‑laws for the “preservation, protection and management of . . . fish . . . on the reserve”. The key issue was therefore the interpretation of the expression “on the reserve”. He held, at p. 146, that this expression authorized the band to make by‑laws not only in relation to fisheries which were a geographical part of the reserve, but also in relation to “waters that are merely touching, against or at the reserve”. Since the Bulkley River touched the Moricetown Reserve, the band’s by‑law would apply to the river and the appellant could rely on the by‑law as a defence to the charges against him. On this ground, Smyth Prov. Ct. J. acquitted the appellant.
Supreme Court of British Columbia (1990), 51 B.C.L.R. (2d) 247
IX. Millward J. found that Smyth Prov. Ct. J. erred in his interpretation of the expression “on the reserve”. He held that the expression could not be read so as to include land outside the boundaries of the reserve. Since the bed of the Bulkley River is not a geographic part of the Moricetown Reserve he found that the by‑law did not apply to it, and thus the appellant could not rely upon it.
X. Millward J. then examined the food fishing licensing regime as a whole and concluded that it constituted a prima facie infringement of the appellant’s aboriginal right. He then turned to the question of whether this infringement could be justified. He noted that the licensing regime was enacted pursuant to the valid legislative objectives of conservation and management. He observed that because salmon are particularly vulnerable to overfishing, the management of the salmon fishery must be directed by an objective, central organization. He found that the conservation and management concerns justified the imposition of a licensing scheme on all fishers including aboriginals.
XI. Turning to the specific licensing scheme in question, Millward J. considered whether it was rationally connected to the goals of conservation and management. He noted that licences are free, do not restrict the amount of fish which may be caught and impose only minimal conditions on the manner of catching the fish. However, he found that in 1986 the salmon stocks near Moricetown were healthy and there was no need for any conservation steps to be taken in that year.
XII. The Department of Fisheries and Oceans argued that the licensing system was important because it allowed it to exert some control over the fishery if conservation measures were required in the future. Millward J. found the licensing scheme to be lacking in several aspects. First he pointed out that since aboriginal peoples must be given priority in the allocation of salmon, conservation measures should be directed first at other users, such as sport fishers. Second, using licences only to keep track of those who can fish achieves little, and simply provides the Department with the number of people that are fishing with a licence. Third, the licensing scheme does not aid in determining the harvest rates of the fishery since it does not specify how many fish may be caught. Moreover, several alternatives to licensing are available to ensure that fishers receive information about the fishery (i.e., newspaper announcements). In short, the licensing scheme could not be justified either on the basis that it was necessary for information gathering or on the basis that it was necessary for information dissemination.
British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 245
Macfarlane J.A. (Taggart J.A. concurring)
XIII. Macfarlane J.A. began by observing that the appellant was not simply asserting an aboriginal right to fish for food. Rather, he was asserting an aboriginal right of self‑regulation in relation to the salmon fishery. In his view, the existence of the right of self‑regulation would be inconsistent with the judgment in R. v. Sparrow, [1990] 1 S.C.R. 1075, where it was recognized that the Crown could regulate aboriginal rights. Moreover, in Sparrow it was decided that not all regulations of an aboriginal right constituted prima facie infringement of that right. A regulation must constitute an unreasonable limitation or impose undue hardship in order for it to infringe an aboriginal right. Macfarlane J.A. concluded at p. 257:
. . . the requirement that an Indian hold a licence does not constitute a prima facie infringement of an aboriginal right. Licensing is a natural part of a centralized scheme to manage fisheries in order to ensure conservation and to achieve a proper allocation of the resource. It is a simple means of determining where and by whom fishing is done and it may provide data necessary to properly manage the resource. Licensing is reasonable and does not cause undue hardship. The licence is free, and available to all band members. It does not deny a right to fish; it is a small part of the regulation of fishing.
XIV. Macfarlane J.A. then considered whether the actual terms of the licence constituted a prima facie infringement of the aboriginal right. Although the licence limited fishing activities, Macfarlane J.A. could not characterize these limitations as unreasonable or unduly harsh. Had the appellant obtained a licence, he could have done exactly what he was doing when charged. In the circumstances, there was no prima facie infringement.
XV. Macfarlane J.A. then rejected the appellant’s argument that the band’s by‑law afforded him a defence. He found that the by‑law had no application outside of the reserve and that the river was outside of the reserve. The appellant could not rely on the principle of ad medium filum aquae since in Macfarlane J.A.’s view, the Crown never intended to include the bed of the Bulkley River in the reserve allotted to the Moricetown Band. He found this was demonstrated by the acreage of the allotment and by the firm and consistent rejection by the province and Canada of native claims to foreshore rights.
XVI. Finally, the creation of the Moricetown Reserve did not involve a conveyance of land, nor did it result in title’s being vested in the band. Therefore, a common law property concept which depends on ownership, such as ad medium filum aquae, has no relevance with respect to reserves.
Wallace J.A. (concurring in the result)
XVII. In Wallace J.A.’s view, the imposition of a licensing requirement is not, per se, an infringement of aboriginal fishing rights. The federal government has the constitutional power to regulate fisheries, and the elders of the Moricetown Band do not have an aboriginal right to excuse band members from complying with federal laws and regulations respecting fisheries. Wallace J.A. stated that he found himself in agreement with Macfarlane J.A.’s conclusion that licensing per se did not constitute a prima facie infringement of the right to fish for food, nor did the conditions of this particular licence.
XVIII. Wallace J.A. then went on to reject the application of the ad medium filum aquae principle on the basis that the Bulkley River is navigable and that the principle has no application to navigable rivers. He found that the proper test for the navigability of a river requires a consideration of the river in its entirety.
Lambert J.A. (dissenting)
XIX. Lambert J.A. began his reasons by dealing with the band’s by‑law. He found that the Bulkley River was not within the geographic boundaries of the Moricetown Reserve, was therefore not “on the reserve”, and ad medium filum aquae could not be used to extend the reserve boundaries to include the river. As a result, a defence based on the application of the band's by‑law could not succeed.
XX. He did, however, state that while the river was not within the reserve, the Moricetown Band nevertheless has an aboriginal title to the exclusive possession, use and enjoyment of the reserve land and to the Bulkley River fishery. Lambert J.A., relying on his reasons in Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97 (B.C.C.A.), found that the band had the right of self‑government and self‑regulation in relation to this fishery, but that this was an internal right and did not extend beyond the bounds of the reserve.
XXI. Lambert J.A. then considered whether the food fishing licensing requirement infringed the appellant’s aboriginal right, and if so, whether it could be justified pursuant to the Sparrow test. He observed that the appellant was asserting an aboriginal right to fish which was not dependent on holding a licence. He found that licensing was an external imposition on the right. In his view, it was a prima facie interference with the appellant’s fishing rights to require as a precondition to the exercise of these rights that he fill out forms, answer questions, and wait until a licence was granted.
XXII. On the question of justification, Lambert J.A. recognized the importance of having a single, central organization to coordinate the conservation and management of fish resources. The scheme administered by such an organization might well require licensing to ensure reporting and to enforce catch limitations. However, in 1986 the federal government did not recognize aboriginal fishing rights other than that related to food. There was no recognition of the right to sell salmon nor of the rights of self‑regulation and self‑government. In that context, the licensing system as it operated in 1986 was not consistent with the true rights of the Moricetown Band. Regardless of the objectives of the scheme, the manner of putting it into effect and carrying it out without the cooperation of the Moricetown Band was contrary to the principles set out in Sparrow, supra. Lambert J.A. added that the requirement of holding a licence is not justified by conservation goals.
Hutcheon J.A. (dissenting)
XXIII. Hutcheon J.A. observed that the conditions of the food fishing licences are not at issue in this case. The real issue is whether the requirement of a licence infringed the appellant’s aboriginal right to fish. In Hutcheon J.A.’s view, it was implicit in Sparrow that a licensing requirement is not, per se, a violation of aboriginal fishing rights. Sparrow is, therefore, authority for the proposition that a licensing regime is within the legislative power of the federal government and is not itself an infringement of the aboriginal right to fish.
XXIV. On the issue of the band’s fishing by‑law, Hutcheon J.A. agreed with Millward J. that the Indian Act only authorizes fishing by‑laws related to waterways within the geographic boundaries of a reserve. Thus, the question is whether the Bulkley River is within the Moricetown reserve. He held that in this case, the principle of ad medium filum aquae created a presumption that the Bulkley River was within the reserve because it is non‑tidal and non‑navigable. This presumption was not rebutted, and the appellant could rely on the by‑law as a defence.
Analysis
XXV. In order to determine whether the band by‑law applies to the Bulkley River, it will be necessary to consider and resolve a number of questions. At the outset it must be emphasized that a consideration of the by‑law raises the question of whether an exclusive right to fish in the Bulkley River at Moricetown was granted to the band. This is very different and distinct from the aboriginal right to fish for food and ceremonial purposes which is given constitutional recognition and protection by s. 35 of the Constitution Act, 1982 . Obviously if an exclusive right to fish was granted to the band, the by‑law would be valid and applicable to the Bulkley River in its passage through the reserve.
XXVI. At the outset I would confirm that I have read and relied upon some of the historical documents filed by the intervener Canadian National Railway Company. The appellant objected to any use being made of these documents. I cannot accept that position. First, all parties have had an opportunity to review the documents and make submissions pertaining to them. Further these are all documents of a historical nature that can be found in the public archives. They are available for use by all members of the public. Lamer J. (as he than was) spoke of such documents in clear and convincing tones in R. v. Sioui, [1990] 1 S.C.R. 1025. He wrote at p. 1050:
I am of the view that all the documents to which I will refer, whether my attention was drawn to them by the intervener or as a result of my personal research, are documents of a historical nature which I am entitled to rely on pursuant to the concept of judicial knowledge.
Did the Crown Intend to Include the Fishery in the Allotment of Moricetown Indian Reserve No.1 to the Wet'suwet'en Band?
The General Policy of the Crown
XXVII. In this case much has been said as to the general practice of the Crown in allocating reserves to native peoples. Evidence as to a general practice may be particularly helpful in determining the scope or extent of native rights. The relevant evidence is sometimes lost and that which remains must be carefully placed in context so that its true significance is neither distorted nor lost.
XXVIII. The historical evidence as to the standard practice of the Crown can be conveniently divided into pre‑ and post‑Confederation periods. This evidence, taken from documents in the public archives, demonstrates that in both periods there was a clear and specific Crown policy of refusing to grant, in perpetuity, exclusive rights to fishing grounds. The Crown would, however, grant exclusive licences or leases over particular areas for a fixed period of time. Obviously this practice was far from an absolute assignment of a fishery right.
Pre‑Confederation
XXIX. There are numerous examples of statements by the Crown, both in British Columbia and in the Province of Canada, that the firm policy of the Crown was to treat Indians in the same manner as non‑Indians with respect to the allocation of fishing grounds for commercial use. There are also clear statements that this policy involved a rejection of claims to exclusive use or control of any public waters for the purposes of fishing. An example is the statement of Governor Douglas, made in 1860 during a major address concerning the Indians on the mainland of British Columbia. He stated:
I also explained to them that the magistrates had instructions to stake out, and reserve for their use and benefit, all their occupied village sites and cultivated fields and as much land in the vicinity of each as they could till, or was required for their support; and that they might freely exercise and enjoy the rights of fishing the lakes and rivers, and of hunting over all unoccupied Crown lands in the colony; and that on their becoming registered free miners they might dig and search for gold, and hold mining claims on the same terms precisely as other miners: in short, I strove to make them conscious that they were recognized members of the commonwealth. . . . [Emphasis by underlining added.]
(Dispatch of Governor Douglas to the Secretary of State for the Colonies, cited in Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97, at p. 255. (Italics added by McEachern C.J.))
XXX. An even earlier example of the same concept is expressed in a letter dated April 16, 1845 from W. H. Draper, Attorney General, Province of Canada to J. M. Higginson, Superintendent General of Indian Affairs, Province of Canada. The Attorney General wrote:
Sir
In reply to your reference of the 10th February last calling for my opinion whether a fishery in the waters of Lake Huron around and adjacent to certain islands which are within the British territory, but have not been formally ceded to the Crown by the Indians, is to be considered the property of the Crown or of these Indians, I have the honor to report my opinion, that the right to fish in public navigable waters in Her Majesty's dominions is a common public right ‑ not a regal franchise ‑ and I do not understand any claim the Indians can have to its exclusive enjoyment. [Emphasis added.]
(National Archives of Canada, Record Group 10, Volume 612, p. 215.)
XXXI. These two passages indicate that the intention and policy of the Crown was to guarantee full public access to the fisheries, and to reject any exclusive claims to fishing grounds. The policy permitted the Indians to exercise their right to fish but did not accord them any special status.
XXXII. In England, it has been accepted that since the Magna Carta, the Crown has no power apart from statute to grant a several or exclusive fishery to anyone. See Gérard V. La Forest, Water Law in Canada -- The Atlantic Provinces (1973), at p. 196. Thus in refusing to grant an exclusive fishery to the Indians, the federal government was following historical precedent.
XXXIII. An examination of the early Fisheries Acts of the Province of Canada and the first Fisheries Act of the new Dominion, the Fisheries Act, S.C. 1868, c. 60, confirms this same policy of exercising only limited powers. The Act gave the government the right to grant exclusive leases and licences to fishing grounds, but there was no provision in the Act for the permanent alienation of fishing rights to private parties.
XXXIV. This pre‑Confederation policy is also set out in the 1866 opinion of James Cockburn, Solicitor General of the Province of Canada. He stated:
With reference . . . to the claim of the Indians to exclusive fishing rights, my opinion is that they have no other or larger rights over the public waters of this Province than those which belong at Common Law to Her Majesty's subjects in general.
. . . I should say that without an Act of Parliament ratifying such reservation, no exclusive right could thereby be gained by the Indians, as the Crown could not by any Treaty or act of its own (previous to the recent Statute) grant an exclusive privilege in favour of Individuals over public rights, such as this, in respect of which the Crown only holds as trustee for the general public.
(Memorandum in re 23 January, 1866 memorandum of W. F. Whitcher (Head of Fisheries Branch, Department of Crown Lands, Province of Canada), 8 March, 1866 in File No. 4/1866, Department of Justice, Ottawa, Ontario.)
Post‑Confederation
XXXV. The policy of refusing to grant exclusive fisheries was maintained in the post‑Confederation period. It is clear that the same understanding of the policy which existed in the Provinces of Canada and British Columbia before Confederation continued subsequently. For example, on December 17, 1875, W. F. Whitcher, Dominion Commissioner of Fisheries, sent a Department of Marine and Fisheries Circular to Fishery Overseers which stated, in part that:
Certain circumstances . . . render it desirable to direct your attention to the exact legal status of Indians in respect of the Fishery Laws.
Fisheries in all the public navigable waters of Canada belong prima facie to the public, and are administered by the Crown under Act of Parliament. . . . Indians enjoy no special liberty as regards either the places, times, or methods of fishing. They are entitled only to the same freedom as whitemen, and are subject to precisely the same laws and regulations.
. . .
There seems to be an impression in some quarters, that exclusive control of fishings in connection with Indian properties belongs to the resident Indians, and that they are at liberty to remove the fishing gear of Whitemen who resort to these fisheries under leases or licences granted by the Crown.
This impression is alike erroneous, mischievous and unfortunate. No such exceptional power exists. . . .
(National Archives of Canada, Record Group 10, Volume 1972, File No. 5530.)
It should be noted that this circular properly refers to the “administration”, that is to say, the regulation by the Government of Canada of fisheries in navigable waters. The Bulkley River is a navigable waterway both above and below the Moricetown Reserve and, for the reasons which appear later, is therefore to be considered navigable at the Reserve.
XXXVI. The letter of W. F. Whitcher, Dominion Commissioner of Fisheries to E. A. Meredith, Deputy Minister of the Interior, of January 20, 1876, indicates that the situation in British Columbia was very much a concern of Federal officials. He wrote:
Having submitted to the Minister the text of the correspondence which has taken place on the subject of fishing rights claimed by Indians. . . I am desired by him to acknowledge the prompt attention bestowed on this matter by the Department of the Interior, and the satisfactory settlement effected. This difficulty, thus fortunately concluded, was such as might at any moment have become extremely troublesome. It was more necessary therefore to deal with it decisively at its present stage, rather than to delay until its existence should produce further misapprehensions affecting these public properties, particularly in the younger provinces of the Dominion, inhabited largely by Indians and half‑breeds, where the Government may be soon called upon to apply the fishery laws.
. . . it is believed that the cordial co‑operation of the Departments in respect of the fishing privileges which exist in the vicinity of Indian Reserves, and the occupation of fishing stations connected therewith, under a uniform system of licence, will ensure to the Indians free and exclusive use of fishery grounds ample for their necessities. . . . [Emphasis added.]
(National Archives of Canada, Record Group 10, Volume 1972, Fil