R. v. Lewis

R. v. Lewis
Collection
Supreme Court Judgments
Date
1996-04-25
Report
[1996] 1 SCR 921
Case number
23802
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: 23802
Decision Content
R. v. Lewis, [1996] 1 S.C.R. 921
Allen Jacob Lewis Appellant
v.
Her Majesty The Queen Respondent
and between
Allen Frances Lewis Appellant
v.
Her Majesty The Queen Respondent
and between
Jacob Kenneth Lewis Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of British Columbia, the
Attorney General for Alberta, the Alliance of
Tribal Councils, the BC Fisheries Survival
Coalition, the BC Wildlife Federation
and the Canadian National Railway Company Interveners
Indexed as: R. v. Lewis
File No.: 23802.
1995: November 29; 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 ‑‑ Fishing ‑‑ Management of fish "on the reserve" ‑‑ Indian band members charged with contravening fishery regulations ‑‑ Indian band by‑law permitting fishing on Indian band waters at any time ‑‑ Indian Act authorizing band council to make by‑laws for management of fish "on the reserve" ‑‑ Whether by‑law affords defence to charges ‑‑ Whether fishery adjacent to reserve included as part of reserve ‑‑ Whether river bed or any part of river bed "on the reserve" ‑‑ Presumption ad medium filum aquae ‑‑ Indian Act, R.S.C., 1985, c. I‑5, s. 81(1) (o) ‑‑ Squamish Indian Band By‑law No. 10.
All three appellants, who are members of the Squamish Indian Band and reside at the Cheakamus Reserve, were charged with contravening the British Columbia Fishery (General) Regulations. On three different occasions in 1985 and 1986, two of the appellants engaged in "net fishing" on the Squamish River in an area immediately contiguous to the reserve. In the case of the third appellant, the fishing took place on the west side of the Squamish River, opposite the reserve. All three appellants claimed that they were authorized by Squamish Indian Band By‑law No. 10 to fish at the time and in the manner in question. The by‑law authorizes band members to fish "upon Squamish Indian Band waters", which are defined as "water situate upon or within the boundaries of Reserves". The by‑law was passed pursuant to s. 81(1) (o) of the Indian Act , which authorizes a band council to make by‑laws for "the preservation, protection and management of . . . fish . . . on the reserve". The appellants were convicted. On appeal, the County Court judge applied the presumption ad medium filum aquae, and found that the boundary of the reserve extended to the mid‑line of the Squamish River. He concluded that By‑law No. 10 constituted a complete defence in cases where the fishing took place on the east (or reserve) side of the river. The appeals of the first two appellants were allowed, since they had been fishing on the east side of the Squamish River, while the third appellant's appeal was dismissed because he had been fishing on the west side. The Court of Appeal allowed the Crown's appeals against the acquittals and dismissed the third appellant's appeal against his conviction.
Held: The appeal should be dismissed.
By‑law No. 10, enacted by the Squamish Band Council pursuant to s. 81(1) (o) of the Indian Act , does not apply to the fishery in the Squamish River at the Cheakamus Reserve and therefore cannot constitute a defence to the charges against the appellants pursuant to the British Columbia Fishery (General) Regulations.
The fishery itself is not part of the Cheakamus Reserve. A desire of both the provincial and federal governments to support and protect native fishing does not amount to granting exclusive fisheries. In fact, statements and legislation both before and after Confederation demonstrate that the Crown's policy was to treat Indians and non‑Indians equally as to the use of the water and not to grant exclusive use of any public waters for the purpose of fishing. The Crown's general policy of not granting exclusive fisheries to Indians equally extends to the allotment of the Cheakamus Reserve. A brief review of the historical circumstances surrounding this particular grant clearly evinces an intention to allocate land, such as fishing stations, but not the Squamish River as forming part of the reserve. Assuming, without deciding, that the Crown had a fiduciary duty to include the river as part of the reserve in order to secure the fishery for the Band, that duty was fulfilled. First, it appears from the historical evidence that any fiduciary obligation on the part of the Crown to secure access to the fishery for the Band was honoured by providing fishing stations for their use. Furthermore, the fact that the Crown did not secure a larger access to the fishery for the Band, in addition to the fishing stations, did not amount to exploitation.
The ad medium filum aquae presumption is a common law rule by which ownership of the bed of a non‑tidal river or stream belongs in equal halves to the owners of riparian land. This presumption can be rebutted either by the terms of the instrument, or circumstances surrounding the grant or conveyance indicating a different intention. Assuming without deciding that the ad medium filum aquae presumption applies to Indian reserves, in western Canada at least it does not apply to navigable rivers. Since the Squamish River is navigable, as explicitly found by the trial judge, the ad medium filum presumption cannot apply, and the question whether in the circumstances the presumption was rebutted does not arise. Consequently, the boundaries of the reserve are limited by the natural boundary of the Squamish River, and not the middle thread of the river.
The phrase "on the reserve" in the context of s. 81(1) (o) of the Indian Act should receive its ordinary and common sense meaning and be interpreted as "within the reserve" or "inside the reserve" or "located upon or within the boundaries of the reserve". Parliament's intention in enacting s. 81(1) as a whole and in particular para. (o) was to provide a mechanism by which Band Councils could assume management over certain activities within the territorial limits of their constituencies. These considerations, together with the fact that By‑law No. 10 defines "Squamish Indian Band waters" to be those which are "situate[d] upon or within the boundaries of Reserves", lead to the conclusion that Parliament never intended that such a fishing by‑law should have an extra-territorial effect. While treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians, the word "on" used in the connection of "on the reserve", in its ordinary and natural meaning, signifies "within the reserve", not "adjacent to the reserve". The phrase "on the reserve" should receive the same construction wherever used within the Indian Act . When the Act is considered in its entirety, it is clear that Parliament never intended that a by‑law passed by the Band Council should have an extra‑territorial effect. Furthermore, an examination of the French text supports "on the reserve" as meaning in or within the boundaries of the reserve. If Parliament had intended to grant regulatory powers to Indian Band Councils beyond the limits of their reserves, it would have specifically provided for such powers. Accordingly, it is the Fisheries Act and its Regulations, not the By‑law, which apply to the Squamish River.
Cases Cited
Distinguished: Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918); referred to: R. v. Jimmy (1987), 15 B.C.L.R. (2d) 145; Attorney‑General for British Columbia v. Attorney‑General for Canada, [1914] A.C. 153; Canadian Exploration Ltd. v. Rotter, [1961] S.C.R. 15; R. v. Sparrow, [1990] 1 S.C.R. 1075; Keewatin Power Co. v. Town of Kenora (1906), 13 O.L.R. 237, varied (1908), 16 O.L.R. 184; R. v. Nikal, [1996] 1 S.C.R. 000; Guerin v. The Queen, [1984] 2 S.C.R. 335; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; Micklethwait v. Newlay Bridge Co. (1886), 33 Ch. D. 133; Re Iverson and Greater Winnipeg Water District (1921), 57 D.L.R. 184; Flewelling v. Johnston, [1921] 2 W.W.R. 374; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Zeolkowski, [1989] 1 S.C.R. 1378; R. v. Hasselwander, [1993] 2 S.C.R. 398.
Statutes and Regulations Cited
British Columbia Fishery (General) Regulations, SOR/84‑248.
Constitution Act, 1867, s. 91(24) .
English Law Ordinance, 1867, S.B.C. 1867, 30 Vict., No. 70, s. 2 [now Law and Equity Act, R.S.B.C. 1979, c. 224, s. 2].
Fisheries Act, R.S.C. 1970, c. F‑14 [now R.S.C., 1985, c. F-14 ].
Indian Act, R.S.C. 1970, c. I‑6, ss. 81(o), 82.
Indian Act, R.S.C., 1985, c. I‑5, ss. 4(3) , 14(3) [rep. & sub. c. 32 (1st Supp.), s. 4 ], 30, 81(1)(o) [am. idem, s. 15 ], 87(1)(b).
Pacific Commercial Salmon Fishery Regulations, C.R.C., c. 823, s. 26(1) [rep. & sub. SOR/86‑641].
Squamish Indian Band By‑law No. 10, A By‑law for the Preservation, Protection and Management of Fish on the Reserve, ss. 1, 2, 5, 6, 16.
Authors Cited
Concise Oxford Dictionary of Current English, 9th ed. Edited by Della Thompson. Oxford: Clarendon Press, 1995, "on".
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Halsbury's Laws of England, vol. 49, 4th ed. London: Butterworths, 1984.
La Forest, Gerard Vincent. Water Law in Canada -‑ The Atlantic Provinces. Ottawa: Information Canada, 1973.
Petit Robert 1. Paris: Le Robert, 1989, "dans".
Webster's Third New International Dictionary of the English Language. Springfield, Mass.: Merriam‑Webster, 1986, "on".
APPEAL from a decision of the British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 224, [1993] 5 W.W.R. 608, 33 B.C.A.C. 1, 54 W.A.C. 1, [1993] 4 C.N.L.R. 98, which allowed the Crown's appeal from a judgment of the County Court, [1989] 4 C.N.L.R. 133, setting aside the convictions of A. F. Lewis and A. J. Lewis, and which dismissed J. K. Lewis's appeal from that same judgment affirming his conviction on charges of illegal fishing. Appeal dismissed.
Harry A. Slade, John R. Rich and Robert C. Freedman, for the appellants.
S. David Frankel, Q.C., and Cheryl J. Tobias, for the respondent.
Paul J. Pearlman, for the intervener the Attorney General of British Columbia.
Everett L. Bunnell, Q.C., and Aldo P. Argento, for the intervener the Attorney General for Alberta.
Arthur C. Pape, Louise Mandell and Leslie J. Pinder, for the intervener the Alliance of Tribal Councils.
Christopher Harvey, Q.C., and Robert M. Lonergan, for the interveners the BC Fisheries Survival Coalition and the BC Wildlife Federation.
Patrick G. Foy, for the intervener the Canadian National Railway Company.
The judgment of the Court was delivered by
1 Iacobucci J. -- This appeal deals with ascertaining the territorial boundaries of the Cheakamus Indian Reserve No. 11 in order to determine the scope of Squamish Indian Band By-law No. 10 and whether its authority extends beyond the bank of the Squamish River to cover any portion of the river bed or the fishery adjacent to the Cheakamus Reserve. The resolution of this appeal necessitates the consideration of three issues. First, whether the fishery itself is included as part of the Cheakamus Reserve. Second, whether the bed or any part of the bed of the Squamish River is "on the reserve" by operation of the common law presumption ad medium filum aquae. Third, what is the interpretation to be given to s. 81(1) (o) of the Indian Act, R.S.C., 1985, c. I-5 (formerly s. 81 (o)) and the territorial jurisdiction of the Squamish Band to regulate a fishery which is adjacent to their reserve.
2 All three appellants were charged with contravening the British Columbia Fishery (General) Regulations, SOR/84-248, made pursuant to the Fisheries Act, R.S.C. 1970, c. F-14. In R. v. Jimmy (1987), 15 B.C.L.R. (2d) 145 (C.A), Hinkson J.A., speaking for the court, concluded that a provision in a Band by-law enacted pursuant to the provisions of s. 81 (o) of the Indian Act afforded a defence to a charge under the Fisheries Act. The parties apparently agree that, if the by-law does not afford a defence, the charges have been proven and the original convictions will stand.
3 I should also note that there is no dispute that the Council of the Squamish Band had the authority, under s. 81 (o) of the Indian Act , to pass the by-law in question. The by-law was not disallowed by the Minister of Indian Affairs pursuant to s. 82 of the Indian Act and was therefore in full force and effect on the dates upon which the alleged offences took place.
1. Background
4 The three appellants are members of the Squamish Indian Band and all reside at the Cheakamus Indian Reserve No. 11. The Reserve is located in British Columbia and occupies an area between the Cheakamus River on the east and the Squamish River on the west. On three different occasions in 1985 and 1986, the appellants Allen Frances Lewis and Allen Jacob Lewis engaged in "net fishing" on the Squamish River in an area immediately contiguous to the Cheakamus Indian Reserve. In the case of the appellant Jacob Kenneth Lewis, the fishing took place on the west side of the Squamish River, opposite the Cheakamus Indian Reserve. All three appellants were charged with contravening the British Columbia Fishery (General) Regulations made pursuant to the Fisheries Act.
5 The appellant Jacob Kenneth Lewis was also charged under s. 26(1) of the Pacific Commercial Salmon Fishery Regulations, C.R.C., c. 823, passed pursuant to the Fisheries Act, with fishing with an unauthorized gill net. There is no dispute on the facts referrable to the time, place and nature of fishing activities carried on by the appellants. All three appellants claimed, however, that they were authorized by Squamish Indian Band By-law No. 10 to fish at the time and in the manner in question. This by-law was passed September 12, 1977 pursuant to s. 81 (o) of the Indian Act .
6 Walker Prov. Ct. J. of the Provincial Court of British Columbia convicted the appellants on all charges relating to the British Columbia Fishery (General) Regulations. The trial judge found Jacob Kenneth Lewis not guilty of fishing with an unauthorized gill net. The appellants appealed their convictions to the County Court of British Columbia. Van der Hoop Co. Ct. J. ([1989] 4 C.N.L.R. 133) applied the presumption ad medium filum aquae, and found that the boundary of the Cheakamus Reserve extended to the mid-line of the Squamish River. Van der Hoop Co. Ct. J. concluded that Squamish Indian Band By-law No. 10 constituted a complete defence in cases where the fishing took place on the east (or reserve) side of the Squamish River. The appeals of the appellants Allen Francis Lewis and Allen Jacob Lewis were allowed and their convictions set aside, since they had been fishing on the east side of the Squamish River, where their conduct was authorized by the Band by-law. The appeal of the appellant Jacob Kenneth Lewis's conviction was dismissed because he had been fishing on the westerly side of the Squamish River. The County Court judge considered that his fishing activity was outside the ambit of Squamish Indian Band By-law No. 10.
7 The Court of Appeal for British Columbia allowed the respondent's appeals against the acquittals of the appellants Allen Francis Lewis and Allen Jacob Lewis and dismissed the appellant Jacob Kenneth Lewis's appeal: (1993), 80 B.C.L.R. (2d) 224, [1993] 5 W.W.R. 608, 33 B.C.A.C. 1, 54 W.A.C. 1, [1993] 4 C.N.L.R. 98. Thus the appellants, by fishing in breach of the British Columbia Fishery (General) Regulations, were found guilty of the offences with which they were charged.
2. Relevant Statutory Provisions
8 The relevant portions of Squamish Indian Band By-law No. 10, entitled A By-law for the Preservation, Protection and Management of Fish on the Reserve read:
The Band Council of the Squamish Indian Band enacts as follows:
1.In this By-law unless the context otherwise requires:
(a) "Squamish Indian Band waters" means all water situate upon or within the boundaries of Reserves set aside for the use and benefit of the Squamish Band of Indians.
. . .
(d) "Fishing" means fishing for or catching fish by any method.
. . .
2.This by-law applies over all Squamish Indian Band waters.
. . .
5. No person other than a member of the Squamish Indian Band shall engage in fishing upon Squamish Indian waters.
6. Members of the Squamish Indian Band shall be permitted to engage in fishing upon Squamish Indian Band waters at any time and by any means except by the use of rockets, explosive materials, projectiles, or shells.
. . .
16. Everyone who violates or prepares to violate any provisions of this by-law, or any regulations, is guilty of an offense punishable on summary conviction and is liable to a fine of not more than $100.00.
9 Section 81(1) (o) of the Indian Act, R.S.C., 1985, c. I-5 (formerly s. 81(o), R.S.C. 1970, c. I-6, which was identical), states the following:
81. (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, 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;
3. Judgments Below
A. British Columbia Provincial Court
10 With respect to the first issue relating to the facts of the case, Walker Prov. Ct. J. held that every ingredient of each charge had been proven beyond a reasonable doubt, with the exception of one count against Jacob Kenneth Lewis relating to the activity of fishing with an unauthorized gill net contrary to s. 26(1) of the Pacific Commercial Salmon Fishery Regulations. He also concluded that the Crown was not estopped from challenging the validity of Squamish Indian Band By-law No. 10.
11 On the issue of the validity of Squamish Indian Band By-law No. 10, in Walker Prov. Ct. J.'s opinion, Squamish Indian Band By-law No. 10 was intra vires s. 81(1) (o) of the Indian Act . As a result, Walker Prov. Ct. J. was of the view that the Indian by-law in question was a valid exercise of the Band's by-law making power pursuant to s. 81(1) (o) of the Indian Act .
12 The final issue Walker Prov. Ct. J. considered was the territorial extent of Indian Reserve No. 11, which in turn raised the question whether the Reserve included any portion of the Squamish River by the application of the ad medium filum aquae presumption. He found that the Squamish River is a navigable water. He then assumed that the presumption applied but he was not satisfied that it was an established practice in British Columbia to apply the presumption under the circumstances of the present case. In fact, the presumption had been sufficiently rebutted because of four specific reasons of a technical nature.
13 Having found that the presumption did not apply to the case at bar, the trial judge acknowledged and recognized the following dilemma: how can the Squamish Band manage the fish resource by means of a by-law if it has no proprietary interest over the river containing the fish, for some of their life cycle? He noted that no authority had been produced which demonstrated that the accused have an unlimited right to fish in the Squamish River, which is off the Reserve, and to manage the fish which are adjacent to the Reserve.
14 Walker Prov. Ct. J. therefore ruled that, although By-law No. 10 was not invalid, the boundaries of the Cheakamus Reserve did not go to the middle of the Squamish River. Walker Prov. Ct. J. accordingly convicted the appellants on all charges against them, except for the charge of fishing with an unauthorized gill net (against Jacob Kenneth Lewis) which had not been successfully proved by the Crown. The trial judge imposed sentences of $25.00 (and in default thereof five days’ imprisonment (consecutive)) on each count.
B. British Columbia County Court, [1989] 4 C.N.L.R. 133
15 Van der Hoop Co. Ct. J. agreed with the trial judge that the evidence established that the portion of the Squamish River adjacent to Indian Reserve No. 11 was navigable and added that this portion is also non-tidal. He also agreed with the trial judge that the Band's by-law was intra vires the Band by virtue of s. 81(1) (o) of the Indian Act . He noted that there was no dispute that the by-law would be paramount over regulations passed under the Fisheries Act if the by-law applied.
16 In dealing with the appellants' first argument, van der Hoop Co. Ct. J. noted that there is some dispute as to whether the presumption ad medium filum aquae applies to navigable waters in Canada, but that it does apply in British Columbia because of the decision in Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153 (P.C.) (the B.C. Fisheries case). He also relied on Canadian Exploration Ltd. v. Rotter, [1961] S.C.R. 15, which holds that the presumption applies to non-navigable waters. He therefore concluded that the presumption did apply in this case.
17 Van der Hoop Co. Ct. J. then reviewed the four reasons accepted by the trial judge to rebut the presumption. Van der Hoop Co. Ct. J. rejected each of them, and held that the Crown, which has the onus of establishing that the ad medium filum presumption is not applicable, had failed to discharge this burden.
18 The County Court judge then dealt with the appellants' alternative argument that the right to fish in the Squamish River alongside the reserve arises from a proper construction of the Indian Act and the documents relating to the transfer of the lands to the federal government. Relying on various pronouncements of this Court about reading grants to Indians broadly and liberally in order to give effective protection to Indian rights, he concluded the following (at p. 142):
Given the historical background of the right of the Indians to fish, the desire of both provincial and federal governments to support and protect that right, and the requirement for a liberal construction of the Indian Act , the term "on the reserve" should be interpreted as, in this case, including the right to fish in the Squamish River....
I cannot see, however, that this right can extend beyond the mid-point of the river.
19 By applying the ad medium filum aquae presumption, van der Hoop Co. Ct. J. allowed the appeals on all charges based on the right to fish on the east side of the river which was within the mid-point of the Squamish River. He dismissed the appeal of Jacob Kenneth Lewis, who was fishing on the west side of the Squamish River, that is beyond the mid-point of the river. Since that section of the bed was not part of the reserve, the by-law did not provide a defence.
C. British Columbia Court of Appeal (1993), 80 B.C.L.R. (2d) 224
20 The Crown appealed the verdicts of acquittal for both Allen Jacob Lewis and Allen Frances Lewis whereas Jacob Kenneth Lewis appealed the decision rendered by the lower court upholding his conviction. Both appeals were referred to the same panel of five judges. The panel all agreed that the Lewises, by fishing in breach of the British Columbia Fishery (General) Regulations, were guilty of the offences with which they were charged.
Wallace J.A. (Taggart, Hutcheon and Macfarlane JJ.A. concurring)
21 Wallace J.A. commenced by indicating that the real interest in this litigation was to determine who had legislative control of the fishery near the Squamish Indian Reserve. Following R. v. Sparrow, [1990] 1 S.C.R. 1075, he held that the Lewises have a protected aboriginal priority in the fishery near the reserve. However, the Lewises asserted that they were authorized by Squamish Indian Band By-law No. 10 to fish at the time and in the manner they did. Therefore, Wallace J.A. concluded that the major issue in this appeal concerned the territorial boundaries of the reserve, the scope or ambit of Squamish Indian Band By-law No. 10, and whether its authority extends beyond the easterly bank of the Squamish River to include the whole or any portion of the river bed adjacent to the Cheakamus Reserve. Three subsidiary issues were considered in order to resolve the major one.
22 The first consideration was the interpretation to be placed on the phrase "on the reserve" found in both s. 81(1) (o) of the Indian Act and Squamish Band By-law No. 10. Wallace J.A. held that:
1.the jurisdiction of the Band to regulate the activities, on any reasonable construction, must be confined to the territorial limits of the reserve;
2.an examination of the French text ("dans la réserve") supports a construction of the phrase "on the reserve" as meaning in or within or inside the boundaries of the reserve. The preposition "dans" is clear and unambiguous;
3.when the Indian Act is considered in its entirety it is clear that Parliament never intended that a by-law passed by the Band council should have an extra-territorial effect; and
4. a broad purposive construction of the phrase "on the reserve" enabling the Band to regulate the fishery on the Squamish River is not necessary as the principles set forth in the Sparrow decision provide the desired protection for the native community's traditional connection with the fishery.
In summary, Wallace J.A. concluded that the jurisdiction of the Band council to make by-laws pursuant to s. 81(1) (o) of the Indian Act is limited to the territory encompassed by the boundaries of the reserve.
23 The second subsidiary issue considered by Wallace J.A. was whether any part of the bed of the river is within the boundaries of the reserve by operation of the presumption ad medium filum aquae. Relying on the Ontario High Court decision in Keewatin Power Co. v. Town of Kenora (1906), 13 O.L.R. 237, Wallace J.A. concluded that the presumption was not applicable to navigable waters in British Columbia and that it would require an express grant by the Crown of the bed of the river before it could be held that the Province has parted with it. He distinguished the Ontario Court of Appeal decision in that case ((1908), 16 O.L.R. 184) on the grounds that in Ontario, English law was adopted without modification for local circumstances. He also distinguished the decision in the B.C. Fisheries case, supra, relied on by van der Hoop Co. Ct. J., on the grounds that the case dealt with riverbeds within a parcel of land, and not a river used as a boundary. He also distinguished Canadian Exploration, supra, on the grounds that the presumption applies only to non-navigable water, which was the nature of the watercourse in question. As the Squamish River, at the point adjacent to the Squamish Indian Reserve No. 11, was a navigable river, Wallace J.A. held that the presumption did not apply.
24 Finally, Wallace J.A. considered whether the fishery is part of the reserve. He accepted that the Lewises had an aboriginal right to catch fish for food and ceremonial purposes in the Squamish River. He also accepted that the objective of the Indian Reserve Commission in allotting reserve No. 11 to the Cheakamus Indian band was to protect the existing Indian interests in the use of the land which comprised the reserve, and to afford the members of the Band uninterrupted access to this valuable traditional fishery. However, he added (at p. 238):
There is no evidence before us that the aboriginal right to fish in the Squamish River included anything more than a right to harvest such fish as the Band required for sustenance and ceremonial purposes. In particular, there was no evidence that the aboriginal right of fishing in the Squamish River at the Cheakamus site, or elsewhere, was an "exclusive right".
25 On the question of the Crown's fiduciary duty, Wallace J.A. concluded that any obligation of the Crown to act honourably to the members of the Band is satisfied in the circumstances of this case by the application of the principles set forth in Sparrow, supra, and by the location of the reserve. Both of these factors give the Band members secured access to a fishery in which they have a constitutional priority. Furthermore, Wallace J.A. rejected the Lewises' argument that, although the conveyance of the Cheakamus Indian Reserve No. 11 did not expressly include the bed of the river or the fishery, it was included "by necessary implication". Therefore, he held that the fishery in the Squamish River was not transferred to the federal Crown as part of the Cheakamus Indian Reserve No. 11.
26 For the foregoing reasons, Wallace J.A. allowed the Crown's appeal of the acquittal of Allen Frances Lewis and Allen Jacob Lewis and dismissed the appeal of Jacob Kenneth Lewis of his conviction.
Lambert J.A. (concurring)
27 Lambert J.A. first considered the question of whether Parliament, in enacting s. 81(1) (o) of the Indian Act , had conferred on the Squamish Indian Band the power to make a by-law controlling the management of the fishery in the Squamish River. In Lambert J.A.'s view, the ad medium filum aquae principle had no application to alter or affect the aboriginal title or rights of the Squamish people to the exclusive or shared exclusive occupation and enjoyment of the land in their reserves, of their neighbouring ancestral lands, or of the bed of the Squamish River, and of the resources of the land, including the fishing in the Squamish River. As a result, the ad medium filum presumption could not apply in the case at bar. In addition, Lambert J.A. held that the words "on the reserve" in s. 81(1) (o) are confined in their meaning to the equivalent of "within the boundaries of the reserve" and do not extend to the water or land adjacent to the reserve.
28 As a result, Lambert J.A. concluded that the boundaries of the Cheakamus Reserve No. 11 do not extend out beyond the east bank of the Squamish River to the middle line of the current of the river. He also held that Parliament did not confer on the Squamish Band the power to make by-laws in relation to a fishery adjacent to a reserve when it enacted s. 81 (o) of the Indian Act . Accordingly, it was his opinion that Squamish Band By-law No. 10 affords no defence to any of the charges in this case.
4. Analysis
29 The appellants have advanced the following three arguments each of which would allow Squamish Indian Band By-law No. 10 to apply and provide a complete defence to the charges: (1) the fishery itself is included as part of the Cheakamus Reserve; (2) the bed or any part of the bed of the Squamish River is "on the reserve" by operation of the common law presumption ad medium filum aquae; and (3) the proper interpretation of the phrase "on the reserve" found in s. 81(1) (o) of the Indian Act includes waters immediately adjacent to the Cheakamus Reserve. I will deal with each of these arguments in turn.
A. Is the Fishery Itself Part of the Cheakamus Reserve?
Introduction
30 There are three prongs to the appellants' argument that the fishery is part of the Cheakamus Reserve. The first is that the process of reserve allotment in British Columbia was to protect prior rights of Indian nations by the establishment of reserves and the right of the Squamish Indians to fish at the reserve is one of those rights so protected; the second is that the Crown was under a fiduciary obligation to include the Squamish River as part of the reserve to secure the fishery for the Squamish Indians; and the third is based on U.S. jurisprudence and is to the effect that, in the creation of reserves, there was an implicit intention to include adjacent waters therein.
1.The Process of Reserve Allotment -- The Policy of the Crown
(a) The Crown's Policy in Relation to Granting Fisheries
31 The thrust of the appellants' argument is that the process of reserve allotment in British Columbia was to protect the prior rights of Indian nations by the establishment of reserves. The right of the Squamish Tribe to fish at the reserve is one such right protected at the time that the reserve was established. The appellants put forth several submissions to conclude that the intention to protect this right was given full effect by the inclusion of the fishery in the Cheakamus Reserve when it was allotted by a Joint Reserve Commission in November 1876. Both in written and oral argument, the appellants asserted that the inclusion of the fishery in the reserve did not constitute a grant of a proprietary fishery to the Squamish Tribe or that it established exclusive fishing rights. It was contended only that the Province's interest in the proprietary fishery came under federal jurisdiction and administration upon the allotment of the Reserve. As a result of the establishment of the reserve, the Provincial interest in the fishery was reduced to a residual interest and the Dominion Government was fully empowered to exercise plenary powers over the reserve, including the fishery, under s. 91(24) of the Constitution Act, 1867 . In turn, since federal jurisdiction is directed to the protection of the Indian interest, Squamish Band By-law No. 10 would govern fishing activities.
32 In appreciating the thrust of the appellants' argument, Wallace J.A. was of the opinion that the Lewises were seeking "to have their right to the fishery characterized as a right in the reserve with the result that no other party could participate in the fishery alongside the reserve" (p. 238). I agree that the appellants' argument could be characterized as seeking an exclusive right to the fishery, particularly since s. 5 of Squamish Indian Band By-law No. 10 states that "No person other than a member of the Squamish Indian Band shall engage in fishing upon Squamish Indian waters". This militates against the appellants' contention that they are not seeking exclusivity of the fishery.
33 Did the Crown intend the fishery to be part of the Squamish Reserve? Considerable historical evidence indicates that it was never the Crown's intention, at any point in time, to include a fishery as part of the reserve. A desire of both the provincial and federal governments to support and protect native fishing does not amount to granting exclusive fisheries. In fact, statements and legislation both pre-Confederation and post-Confederation demonstrate that the Crown's policy was to treat Indians and non-Indians equally as to the use of the water and not to grant exclusive use of any public waters for the purpose of fishing. For an extensive historical review of the Crown's policy, both pre-Confederation period and post-Confederation period, reference should be made to the reasons of my colleague, Cory J., in R. v. Nikal, [1996] 1 S.C.R. 000 (at paras. 28 to 37).
34 Three commissioners were appointed in 1876 to form the Joint Indian Reserve Commission: Archibald McKinlay was appointed by the Province of British Columbia; Alexander C. Anderson was appointed by Canada; and Gilbert Malcolm Sproat was appointed by the federal and provincial governments. G. M. Sproat was the sole Indian Reserve Commissioner from 1878 to 1880 and Peter O'Reilly succeeded G. M. Sproat as the sole Indian Reserve Commissioner from 1880 to 1898. The historical evidence also shows that the authority and mandate of the Indian Reserve Commissioners, as representatives of the Crown, were limited to the allocation of land to the Indians, but they could only recommend an allocation of an exclusive fishery that would then have to be approved by the Department of Marine and Fisheries: see Nikal, supra (at paras. 38 to 54), for a number of historical statements on this issue.
35 Although the Commissioners did not have the power to grant exclusive fisheries and the Department of Marine and Fisheries refused to allow such an exclusivity in perpetuity, as confirmed by the evidence, it seems that lands beside rivers were reserved as fishing stations to permit Indian access to the fisheries. The system in British Columbia was described in 1906 by the Deputy Superintendent General of Indian Affairs in a letter relating to Indian fishing in Manitoba and the North-West Territories:
The Department has come to the conclusion that generally speaking, and unless under very exceptional circumstances the proper policy to pursue will be to let the Indians stand on the same footing as the settlers in so far as concerns the use of the waters, and to confine its efforts to endeavouring, where considered necessary, to secure stations on land to afford access to the waters, a system which it may be remarked appears to work well in the Province of British Columbia, and to resist efforts should any be made to compel the Indians to pay fees for licences to fish for domestic as distinguished from commercial purposes. [Emphasis added.]
(Frank Pedley, Deputy Superintendent General of Indian Affairs, to Indian Commissioner for Manitoba and the North West Territories, 8 February, 1906 in National Archives of Canada, Record Group 10, Volume 6972, File No. 774/20-2 Part 1.)
36 Fishing stations were described as:
... plots of land ... allotted [by the Commissioners] on account of being places frequented by the Indians for the purpose of fishing, and were either adjacent to fisheries or within a convenient distance.
(Sam Bray, Chief Surveyor, Department of Indian Affairs, to Secretary, Indian Affairs, 13 January, 1898. Schedule of Fisheries allotted to Indians in British Columbia by the Indian Reserve Commissioners. National Archives of Canada, Record Group 10, Volume 3909, File No. 107297-3.)
37 On October 9, 1874, Indian Commissioner I. W. Powell wrote to the former Governor of the Colony of British Columbia, Sir James Douglas, enquiring as to whether "there was any particular basis of acreage used in setting apart Indian Reserves" prior to joining Confederation (Public Archives Canada). In reply, Governor Douglas stated, in part:
To this enquiry I may briefly rejoin that, in laying out Indian reserves no specific number of acres was insisted on. The principle followed in all cases was to leave the extent and selection of the land entirely optional with the Indians, who were immediately interested in the Reserve. The surveying Officers having instructions to meet their wishes in every particular and to include in each Reserve the permanent Village sites, the fishing stations, and burial grounds, cultivated land and all the favourite resorts of the tribes: and in short, to include every piece of ground to which they had acquired an equitable title, through continuous occupation, tillage, or other investment of their labour. [Emphasis added.]
(Letter from James Douglas to I. W. Powell, October 14, 1874, Public Archives Canada.)
38 The Report of the Government of British Columbia on the Subject of Indian Reserves (approved by the Lieutenant-Governor in Council, August 18, 1875) also contained a reference to fishing stations:
Reserves
From the above general remarks it is reasonable to suppose that large tracts of agricultural lands will not be required for the class of Indians referred to. Those who cannot be employed usefully, in the manner indicated, in fishing or hunting, might require and fairly expect farming lands. The other portion of the community would be provided for in other ways, by reserving their fishing stations, fur-trading posts and settlements, and by laying off a liberal quantity of land for a future town-site. In the mountain ranges, t