R. v. Nikal [1996] 1 S.C.R. 1013

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Jerry Benjamin Nikal                                                                     Appellant




Her Majesty The Queen                                                                   Respondent




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.

AppliedR. v. Sparrow, [1990] 1 S.C.R. 1075; Keewatin Power Co. v. Kenora (Town) (1906), 13 O.L.R. 237; consideredFlewelling v. Johnston (1921), 59 D.L.R. 419; referred toDelgamuukw 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.


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