R. v. Nikal (J.B.),

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Citation: (1996), 196 N.R. 1 (SCC),35 CRR (2d) 189,133 DLR (4th) 658,1996 CanLII 245 (SCC),196 NR 1,[1996] 3 CNLR 178,[1996] 5 WWR 305,105 CCC (3d) 481,19 BCLR (3d) 201,[1996] 1 SCR 1013,74 BCAC 161,[1996] SCJ No 47 (QL)
• Court: Supreme Court (Canada)
• Date: 25 April 1996

R. v. Nikal (J.B.) (1996), 196 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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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 (intervenors)

(23804)

Indexed As: R. v. Nikal (J.B.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

April 25, 1996.

Summary:

The accused Indian was charged with fishing without a licence, contrary to s. 4(1) of the British Columbia Fishery (General) Regulations. The accused claimed that the licensing scheme violated his aboriginal rights as guaranteed by s. 35(1) of the Con­stitution Act, 1982. Further, the accused claimed that the river was "on the reserve", accordingly, fishing without a licence was permitted by the Band's bylaw.

The British Columbia Provincial Court, in a judgment reported [1989] 4 C.N.L.R. 143, acquitted the accused on the ground that the river was "on the reserve" and the Band bylaw took precedence over the federal Fisheries Act and Regulations. The Crown appealed.

The British Columbia Supreme Court, in a judgment reported [1991] 1 C.N.L.R. 162, dismissed the appeal. The court held that the trial judge erred in finding that the river was "on the reserve". Accordingly, the Band bylaw did not provide a defence. However, the licensing requirement prima facie infringed aboriginal rights and the Crown failed to justify the scheme. The Crown appealed. The accused cross-appealed.

The British Columbia Court of Appeal, Lambert and Hutcheon, JJ.A., dissenting, in a judgment reported 33 B.C.A.C. 18; 54 W.A.C. 18, allowed the Crown's appeal and dismissed the accused's cross-appeal. The court held that the river was not on the reserve and the Band bylaw afforded no defence to fishing without a licence. The court held that the accused failed to prove that the licensing scheme prima facie infringed his aboriginal rights. The accused appealed.

The Supreme Court of Canada, McLachlin and L'Heureux-Dubé, JJ., dissenting, allowed the appeal and restored the accused's acquittal. The court unanimously held that the requirement of a licence per se did not infringe s. 35(1) aboriginal rights. The court held that the mandatory conditions affixed to the 1986 licence infringed the accused's aboriginal rights and were not severable. The licence was, therefore, invalid. McLachlin, J. (L'Heureux-Dubé, J., concurring), stated that the issue of whether the condi­tions were unconstitutional was not properly before the court and the licence should not have been ruled invalid on that ground. The accused fished without a licence and, since he was charged with fishing without a licence and not with violating licence condi­tions, and the Crown could constitutionally require him to obtain a licence, he was properly convicted.

Fish and Game - Topic 971

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Off reserves - Statutory regulation of - [See Indians, Inuit and Métis - Topic 5502.1].

Fish and Game - Topic 976

Indians, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Licensing - Section 4(1) of the British Columbia Fishery (General) Regulations required the accused Indian to obtain a licence containing mandatory conditions - The Supreme Court of Canada held that the licence per se did not prima facie infringe an Indian's guaranteed aboriginal rights (Constitution Act, 1982, s. 35(1)) - The issue was whether the mandatory conditions prima facie infringed aboriginal rights and, if so, whether the Crown could justify them - Whether the conditions prima facie infringed aboriginal rights depended on their reasonableness, whether they imposed undue hardship and whether they denied the licenceholder's preferred means of exercising that right - The court held that four mandatory conditions prima facie infringed aboriginal rights by re­stricting what and for whom an Indian could fish for and when he could fish - Whether the conditions were justified depended on whether there was a valid legislative objective and, if so, were the conditions reasonable - Absent evidence by the Crown to justify the conditions, the conditions infringed s. 35(1) - The condi­tions were not severable from the licence, accordingly, the licence was invalid - See paragraphs 85 to 117.

Indians, Inuit and Métis - Topic 5502.1

Lands - Reserves - Rivers - The accused Indian was charged with fishing without a licence on a river bounded on both sides by Reserve land - If the river was "on the reserve", an authorized Band bylaw per­mitted fishing without a licence, affording a defence to the charge - At issue was whether the exclusive right to fish the river was granted to the Band with the allotment of the Reserve - Historical evidence showed a clear and specific Crown policy against any absolute assignment of a fish­ery right - The Supreme Court of Canada stated that "when the facts surrounding this particular grant are considered in light of the expressed general policy, they clearly indicate an intention to allot only the land of the reserve and not the river" - Ac­cordingly, the Band bylaw afforded no defence to the charge - See paragraphs 25 to 62.

Waters - Topic 223

Natural watercourses - Riparian rights - Non-tidal rivers - Ownership of bed of river - A river was bounded on both sides by an Indian Reserve - An accused Indian was charged with fishing without a licence - He claimed the river was nonnavigable and that the presumption ad medium filum aquae applied - Since the river was bounded on both sides by the Reserve, the river was presumptively part of the Reserve - The Supreme Court of Canada stated that assuming, without deciding, that the doctrine applied to Indian Reserves, it did not apply for three reasons: (1) the river was navigable and the doctrine applied only to nonnavigable rivers; (2) at the time the Reserve was created the En­glish common law provided that the fish­ery was a right which was severable from the title to the river bed itself, ac­cordingly, the presumption had no effect on the fish­ery where the Crown specifi­cally refused to allot the exclusive fishery to the Band; and (3) if the presumption did apply, it was rebutted by evidence that the Crown never intended to grant, nor did it grant, the bed of the river to the Band. - See paragraphs 63 to 64.

Waters - Topic 223

Natural watercourses - Riparian rights - Non-tidal rivers - Ownership of bed of river - The Supreme Court of Canada described the English common law rule (ad medium filum aquae) as: "the owner of land through which a non-tidal stream flows owns the bed of the stream unless it has been expressly or impliedly reserved; and if the stream forms the boundary between lands owned by different persons, each proprietor owns the bed of the river ad medium filum aquae - to the centre thread of the stream." - The Supreme Court of Canada held that the rule did not apply in Western Canada to non-tidal navigable waters - Local circumstances existing in Canada rendered the English common law rule inapplicable to navigable waters - The issue was whether the river was navigable or nonnavigable, not whether it was tidal or non-tidal - See paragraphs 65 to 71.

Waters - Topic 228

Natural watercourses - Riparian rights - Non-tidal rivers - Fishing rights - [See first Waters - Topic 223].

Waters - Topic 4724

Navigable waters - Definitions - Navi­gable - What constitutes - At issue was whether the Bulkley River in British Co­lumbia was "navigable" at the point where it passed through an Indian Reserve - The Supreme Court of Canada held that the Bulkley River was a navigable river - The court stated that to assess navigability, the entire length of the river from its mouth to its termination point was to be considered - The Bulkley River contained various falls and rapids, requiring portage to navi­gate it - The court stated that "in­terrup­tions to naviga­tion such as rapids on an otherwise navi­gable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream nonnavi­gable in law at those points. ... The Bulk­ley River is navigable both above and below the [Reserve] and should be con­sidered a navigable river. The fact that it is not navigable at the [Reserve] cannot alter that conclusion." - See para­graphs 65 to 74.

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263, appld. [para. 13].

Delgamuukw et al. v. British Columbia et al., [1993] 5 W.W.R. 97; 30 B.C.A.C. 1; 49 W.A.C. 1 (C.A.), refd to. [para. 20].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 26].

Iverson v. Greater Winnipeg Water District (1921), 57 D.L.R. 184; 31 Man. R. 98 (C.A.), refd to. [para. 67].

Flewelling v. Johnston (1921), 59 D.L.R. 419 (Alta. C.A.), refd to. [para. 68].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; [1992] 2 W.W.R. 193, refd to. [para. 71].

Keewatin Power Co. v. Kenora (Munici­pality) (1906), 13 O.L.R. 237 (H.C.), refd to. [para. 73].

Coleman v. Ontario (Attorney General) (1983), 143 D.L.R.(3d) 608 (Ont. H.C.), refd to. [para. 73].

Marshall v. Ulleswater Steam Navigation Co. (1863), 3 B. & S. 732; 122 E.R. 274, refd to. [para. 78].

Holford v. Bailey (1846), 8 Q.B. 1000; 115 E.R. 1150, refd to. [para. 81].

R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.A.), refd to. [para. 92].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 108].

R. v. Sharma, [1993] 1 S.C.R. 650; 149 N.R. 161; 61 O.A.C. 161, refd to. [para. 112].

R. v. Bob et al. (1991), 88 Sask.R. 302 (C.A.), refd to. [para. 112].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 114].

Norton v. Shelby County (1886), 118 U.S. 425, refd to. [para. 116].

Air Canada and Pacific Western Airlines Ltd. v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1; 36 B.C.L.R.(2d) 145, refd to. [para. 116].

Statutes Noticed:

British Columbia Fishery (General) Regulations - see Fisheries Act Regula­tions (Can.).

Constitution Act, 1982, sect. 35(1) [para. 2]; sect. 52(1) [para. 113].

English Law Ordinance, S.B.C. 1867, c. 70, sect. 2 [para. 65].

Fisheries Act Regulations (Can.), British Columbia Fishery (General) Regulations, SOR/84-248, sect. 4(1) [para. 1].

Gitsan-Wet'suwet'en Indian Fishing By-law - see Indian Act Regulations (Can.).

Indian Act, R.S.C. 1985, c. I-5, sect. 81(1)(o) [para. 6].

Indian Act Regulations (Can.), Gitsan-Wet'suwet'en Indian Fishing By-law, SOR/86-612, sect. 2, sect. 3, sect. 4(a) [para. 7].

Authors and Works Noticed:

Coulson, H.J.W., and Urquhart, A. Forbes, The Law relating to Waters (2nd Ed. 1902), pp. 100 [para. 76]; 104 [para. 77]; 368 [para. 81].

La Forest, Gerard V., Water Law in Canada - The Atlantic Provinces (1973), pp. 181 [para. 73]; 196 [para. 32]; 236 [para. 79]; 241, 242 [para. 66].

Counsel:

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 intervenor, At­torney General of British Columbia;

Robert J. Normey, for the intervenor, Attorney General for Alberta;

Arthur C. Pape, for the intervenor, Alliance of Tribal Councils;

Michael Jackson, for the intervenors, Del­gamuukw et al.;

J. Keith Lowes, for the intervenor, Fish­eries Council of British Columbia;

Patrick G. Foy, for the intervenor, Cana­dian National Railway Co.;

Christopher Harvey, Q.C., for the intervenors, BC Fisheries Survival Coa­lition and BC Wildlife Federation.

Solicitors of Record:

Hutchins, Soroka, Grant & Paterson, Haz­elton, B.C., for the appellant;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent;

Fuller, Pearlman, Victoria, B.C., for the intervenor, Attorney General of British Columbia;

Parlee, McLaws, Calgary, Alberta, for the intervenor, Attorney General for Alberta;

Mandell, Pinder, Vancouver, B.C., for the intervenor, Alliance of Tribal Councils;

Rush, Crane, Guenther & Adams, Vancouver, B.C., for the intervenors Delgamuukw et al.;

J. Keith Lowes, Vancouver, B.C., for the intervenor, Fisheries Council of British Columbia;

Ladner Downs, Vancouver, B.C., for the intervenor, Canadian National Railway Co.;

Russell & DuMoulin, Vancouver, B.C., for the intervenors, BC Fisheries Survival Coalition and BC Wildlife Federation.

This appeal was heard on November 30, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On April 25, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Lamer, C.J.C., La Forest, So­pinka, Gonthier, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 119;

McLachlin, J. (L'Heureux-Dubé, J., concurring), dissenting - see para­graphs 120 to 132.