R. v. Nikal

The Crown in all of its manifestations was consistently clear in its statements that no exclusive fishery should be granted to Indian bands in British Columbia. This is consistent with the fact that the Crown had no power to grant an exclusive fishery, and that after Confederation this would involve the grant of provincial property.

The correct test for an assessment of navigability is to consider the entire length of the river. A section of the river which is non‑navigable in fact does not necessarily render either the river as a whole or that section non‑navigable in law if it is found to be substantially navigable throughout. The Bulkley River is navigable both above and below the Moricetown Canyon, and is therefore a navigable river.

The presumption ad medium filum aquae does not apply on the facts of this case because:

a. Correctly considered the river is navigable, and the application of ad medium filum aquae to navigable rivers was not adopted into the common law of British Columbia since it was unsuited to local conditions.

b. Fishing as a right can be the subject of a separate grant or reservation. On the facts of this case it is clear that the fishery was reserved from the allotment.

LXXXIV. It follows that the band by‑law does not apply to the Bulkley River.

LXXXV. It is now necessary to determine whether the appellant’s s. 35 rights were infringed by the licensing requirement of the Department of Fisheries and Oceans. If they were not, it still must be considered whether the conditions of the licence infringe the s. 35 rights and if so whether they can be justified.

Was the Appellant's Section 35 Right to Fish for Food Violated by the Licensing Requirement of the Department of Fisheries and Oceans?

Does Licensing Constitute a Prima Facie Violation of Section 35?

LXXXVI. The appellant contends that the mere requirement of a licence constitutes a prima facie infringement of his s. 35 aboriginal rights. This section of the Constitution Act, 1982 provides:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

LXXXVII. It was held in Sparrow, supra, at p. 1112, that the onus of establishing a prima facie infringement of an aboriginal right rests on the claimant of that right.

LXXXVIII. The first step in this process is to establish the existence and the extent of the aboriginal right. I am satisfied that the appellant has successfully demonstrated an aboriginal right to fish for food and ceremonial purposes. The Summary Conviction Appeal Judge, Millward J., specifically found in oral reasons from judgment dated July 12, 1990 that:

. . . the aboriginal right includes the right to choose the period of time, whether early in the year when the ice is still in the river, or after the end of August, up to a date in September, when steelhead are normally taken, the right to select persons intended to be the recipients of the fish for ultimate consumption, the right to select the purpose for which the fish is to be used, that is, for food or ceremonial or religious purposes, and the method or manner of fishing. . . .

(R. v. Nikal, [1991] 1 C.N.L.R. 162, at p. 167.)

LXXXIX. This, based on the evidence, is an appropriate finding as to the scope of the aboriginal rights of the Wet’suwet’en people with respect to the fishery subject to one qualification. Specifically, the selection of the ultimate recipients of the fish is not an unqualified right. Rather, the evidence adduced went no farther than establishing that the appellant as a Wet’suwet’en had the right to provide to other members of the band those fish that are necessary for their personal food and ceremonial needs. I take no position as to whether the right extends beyond that.

XC. I cannot accept Millward J.’s finding that the appellant has a right not to comply with the directions of the Department of Fisheries and Oceans. This finding is not supported by the evidence, nor is it sustainable in law. Moreover, this conclusion, if not conceded, was not seriously contested by the appellant.

XCI. With respect to licensing, the appellant takes the position that once his rights have been established, anything which affects or interferes with the exercise of those rights, no matter how insignificant, constitutes a prima facie infringement. It is said that a licence by its very existence is an infringement of the aboriginal right since it infers that government permission is needed to exercise the right and that the appellant is not free to follow his own or his band’s discretion in exercising that right.

XCII. This position cannot be correct. It has frequently been said that rights do not exist in a vacuum, and that the rights of one individual or group are necessarily* limited by the rights of another. 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 in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended. Section 1 of the Canadian Charter of Rights and Freedoms is perhaps the prime example of this principle. Absolute freedom without any restriction necessarily infers a freedom to live without any laws. Such a concept is not acceptable in our society. On this issue the reasons of Blair J.A. in R. v. Agawa (1988), 65 O.R. (2d) 505 (C.A.), at p. 524, are persuasive and convincing. He recognized the need for a balanced approach to limitations on treaty rights, stating:

. . . Indian treaty rights are like all other rights recognized by our legal system. The exercise of rights by an individual or group is limited by the rights of others. Rights do not exist in a vacuum and the exercise of any right involves a balancing with the interests and values involved in the rights of others. This is recognized in s. 1 of the Canadian Charter of Rights and Freedoms which provides that limitation of Charter rights must be justified as reasonable in a free and democratic society.

XCIII. This conclusion is consistent with the approach to interpreting s. 35 rights as set out in Sparrow, supra, at p. 1110:

The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. [Emphasis added.]

XCIV. This case provides an example of the wisdom of the reasoning referred to in Sparrow and Agawa. Here, the aboriginal right to fish must be balanced against the need to conserve the fishery stock. The existence of an aboriginal right to fish cannot automatically deny the ability of the government to set up a licensing scheme or program since the exercise of the right itself is dependant on the continued existence of the resource. The very right to fish would in time become meaningless if the government could not enact a licensing scheme which could form the essential foundation of a conservation program.

XCV. It must also be remembered that aboriginal rights, by definition, can only be exercised by aboriginal peoples. Moreover, the nature and scope of aboriginal 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 the aboriginal right for the aboriginal person as well as preventing those who are not aboriginals from exercising aboriginal rights.

XCVI. The situation presented in this case pertaining to s. 35 aboriginal rights is analogous to the mobility rights guaranteed under s. 6(1) of the Charter . That section guarantees the right of every citizen of Canada to enter, remain in and leave Canada. This right, by definition, is limited to citizens of Canada, and its enforcement requires some means of identifying Canadian citizens. Accordingly, a requirement that citizens present a passport to enter Canada would not be an infringement of their mobility rights since the passport serves to identify those who can exercise the rights of Canadian citizens.

XCVII. This is not to say that there are not conditions of the licence which could constitute infringements of s. 35 rights. Even a simple licence could constitute an infringement if it could only be obtained with great difficulty or expense. The test for this assessment has been set out clearly in Sparrow, beginning at p. 1111:

The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1).

XCVIII. The questions which must be resolved in order to determine whether a prima facie infringement has occurred are set out at p. 1112:

To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation.

XCIX. Applying these tests to the facts of this case reveals that the licence itself, 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. Accordingly the first question, is licensing unreasonable, must be answered in the negative.

C. The second question is whether the regulation imposes an undue hardship. The term “undue hardship” implies that a situation exists which imposes something more than mere inconvenience. It follows that a licence which is freely and readily available cannot be considered an undue hardship. The situation might be different if, for example, the licence could only be obtained at locations many kilometres away from the reserve and accessible only at great inconvenience or expense.

CI. The final question is whether the right holder is denied the preferred means of exercising the right. The licence by itself, without its conditions, cannot affect the preferred means of exercising the right since at its most basic it is nothing more than a form of identification. Requiring identification so as to assist fisheries officers in distinguishing rights holders from non-rights‑holders cannot be an interference with the preferred means of exercising the right. It follows that the licence itself, without considering its conditions, cannot be said to constitute an infringement of the aboriginal right to fish. Thus the mere requirement of a licence in the circumstances of this case does not amount to an infringement of the appellant’s s. 35 rights.

CII. Indeed as a general rule it can be said that the simple requirement of a licence will seldom constitute a prima facie infringement of the s. 35 aboriginal right to fish. If the salmon fishery is to survive, there must be some control exercised by a central authority. It is the federal government which will be required to manage the fishery and see to the improvement and the increase of the stock of that fishery. It is for the federal government to ensure that all users who are entitled to partake of the salmon harvest have the opportunity to obtain an allotment pursuant to the scheme of priorities set out in Sparrow. Any system of control must commence with a licensing scheme. It is through the issuing of licences to the various type of users that the department will be able to know at least the numbers of fishers and the categories of those that are fishing. This will provide the first rough basis from which the department can make the estimates necessary to manage the fishery resource. The licence is the essential first step in the preservation and management of this fragile resource. This need to manage the stock goes far further than simply preventing the elimination of the salmon. Management imports a duty to maintain and increase reasonably the resource. The licence assists this duty by providing a means of identification that helps to ensure that only those permitted to do so are fishing in the authorized areas. It serves as a means of control by eliminating those that do not have a licence from fishing.

The Specific Terms of this Licence

CIII. Although licensing by itself will not as a rule constitute a prima facie infringement of the aboriginal right to fish, the government will be required to justify those conditions of a licence which on their face infringe the s. 35 right to fish. The 1986 licence at issue in this case contains several conditions. Some of these printed on the licence itself are mandatory. Others are completed by the issuing fishery officer and are discretionary. Of the mandatory conditions printed on the face of the licence, some are clearly prima facie infringements of the aboriginal right of the appellant as properly found by the courts below. The infringing conditions are:

(i) the restriction of fishing to fishing for food only;

(ii) notes 4 and 5 of the licence, which provide:

Fishing Time Subject to Change by Public Notice.

Indian Food Fishing before July 1st and after September 30th must be licenced by the Provincial Fish & Wildlife Conservation Officer.