R. v. Lewis [1996] 1 S.C.R. 921

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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.

 

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