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, the most eligible localities for the hunter's purpose might be selected and reserved as fur-bearing preserves. [Emphasis added.]
(Order-in-Council No. 1071 and Report of B.C. Government on Indian Land Question, August 18, 1875.)
39 The appellants argue that the term "fishing station" cannot be taken to exclude the reservation of fishing rights at other locations. Based on the foregoing evidence, it would not be appropriate to expand the notion of "fishing station" to encompass fisheries as the Indian Reserve Commissioners could only allocate the lands and the Department of Marine and Fisheries refused to assign exclusive fisheries in perpetuity.
(b)The Policy of the Crown and the Grant of the Cheakamus Reserve
40 The Crown's general policy of not granting exclusive fisheries to Indians equally extends to the allotment of the Cheakamus Reserve. Again, 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.
41 All three Indian Reserve Commissioners received the following general instructions in relation to the point of reserve location:
While it appears theoretically desirable as a matter of general policy to diminish the number of small reserves held by any Indian nation, and when circumstances will permit to concentrate them on three or four large reserves, thus making them more accessible to missionaries and school teachers, you should be careful not even for this purpose to do any needless violence to existing tribal arrangements, and especially not to disturb the Indians in the possession of any villages, fishing stations, fur-trading posts, settlements or clearings, which they may xxxx [sic] occupy and to which they may be specially attached, . . . and should rather be encouraged to persevere in the industry or occupation they are engaged in, and with that view should be secured in the possession of the villages, fishing stations, fur-posts or other settlements or clearings which they occupy in connection with that industry or occupation, unless there are some special objections to so doing, as for example, where the Indian settlement is in objectionable proximity to any city, town, or to a village of white people. [Emphasis added.]
(Memorandum of Instructions to the Dominion Commissioner A. C. Anderson on the British Columbia Indian Land Question, 25th August 1876.)
42 As for the allocation of the Cheakamus Reserve No. 11, in a letter from Indian Reserve Commissioner G. M. Sproat to the federal Minister of the Interior, dated November 27, 1876, he reported that the Commissioners had acknowledged and informed the Indians of the essence of the instructions he had received. Commissioner Sproat also noted that:
The Muskweam and Skwawmish Reserves do not include any mountains nor what may be called fictitious acreage. The Indians are too intelligent to wish for mountains or stony land unsuitable for pasture. Nothing would be more misleading than to form opinions about acreage without reference to the quality of the land. These reserves contain as good soil as there is in the district, and have ample water frontages for the purposes of the Indians, but like all the land in the valley of the Skwawmish river, (except the hay land at its mouth,) they are for the most part heavily timbered. [Emphasis added.]
(Letter from Sproat to Minister of Interior, November 27, 1876, Provincial Archives of British Columbia.)
43 The Cheakamus Indian Reserve No. 11 was recommended for allotment on November 27, 1876 during the tenure of the Joint Indian Reserve Commission. In a letter from A. C. Anderson to the Minister of the Interior, dated March 21, 1877, no reference was made to any fisheries. Instead one reads the following:
On the other hand we have striven throughout to meet the just and reasonable expectations of the Indians, while at the same time endeavouring to fulfil, where possible the wishes of the Governments, by assigning compact Reserves of considerable area.
Thus, in addition to the various fishing stations, etc., we selected at the mouth of the Che-ak-a-mus, a tract of excellent land lying along the river, containing about 2,000 acres, a considerable portion of which is meadow; and at Staamis, the delta of the river, containing about 1,400 acres. These selections were made in the trust that, at some future day, the natives may be induced to congregate at these spots, as centres of population, and thus the education of the children, and the social improvement of the adults, be facilitated in accordance with the benevolent plans of the Government.
The soil along the river is generally very good; and the climate, though comparatively cold in winter, favourable for culture.
(A. C. Anderson, Dominion Indian Reserve Commissioner, to Minister of the Interior, 21 March, 1877. Extract. Copy in Annual Report of the Department of the Interior, 1877, Special Appendix D, in Canada, Parliament. Sessional Papers, No. 10, 1878.)
44 In the Minutes of Decision establishing the reserves on the Squamish River dated November 27, 1876, the "Che-ah-ka-mist" (now known as Cheakamus) was described as follows:
An extensive reserve between Chemi and the Che-ah-ka-mist river, including all the land lying between the Skwawmish river and the base of the mountains and also including a small block in the bend of the Che-ah-ka-mist river extending half a mile westward along the base of the mountains from a marked alder near the graveyard at the Che-ah-ka-mist village, and northwards to the right bank of the Che-ah-ka-mist river so as to include the point of land on which the village of Che-ah-ka-mist is situated.
(Indian Reserve Commission British Columbia Minute of Decisions, November 27, 1876.)
45 Furthermore, prior to his survey of The Cheakamus Reserve, Edward Mohun had written to W. S. Gore, the Surveyor General of British Columbia, in order to ensure that rivers could be used as boundaries. After reviewing the provincial land legislation, the Land Amendment Act, 1879, Gore replied that there was no objection to
making the banks [that is, the ordinary high water mark] of a River or Lake a boundary; . . . provided the River or Lake is sufficiently large to constitute what might be termed a natural boundary....
(W. S. Gore, Surveyor General of British Columbia, to Edward Mohun, Surveyor in Charge of Indian Reserve Surveys, B.C., 30 June, 1879 in Public Archives of British Columbia, GR 440, Volume 14, p. 420.)
In 1881, Mohun surveyed the Cheakamus Indian Reserve No. 11 and he traversed the ordinary high water mark of the Squamish River as the boundary of the reserve.
46 There is other evidence that supports the view that the Squamish River was not part of the reserve. For example, A. W. Vowell, Indian Superintendent of British Columbia, wrote to J. D. McLean, Secretary, Indian Affairs, inquiring as to whether or not the Squamish Indians have the exclusive right to the fishery in such parts of the river as run through their reserves, and on the foreshore between high and low water mark fronting on the reserves. J. D. McLean responded:
In reply I beg to inform you that the Department approves of the course pursued by the Agent in so far as ordering the Japanese fishermen to remove from Ahtsann Reserve, but as to forbidding them to fish in that part of the River which passes through the Reserve, it fails to see how such action can be sustained unless the stream be unnavigable, for, in so far as tidal or navigable waters are concerned, the Indians can assert no foreshore or other rights.
The Indians can assert exclusive fishing rights with respect to such part of unnavigable waters as are bounded on both sides by their Reserve, or, in case of an unnavigable stream being bounded on one side only by the Reserve, to the half of the stream on the Reserve side thereof.
(J. D. McLean, Secretary, Department of Indian Affairs, to A. W. Vowell, Indian Superintendent of British Columbia, 2 October, 1900 in National Archives of Canada, Record Group 10, Volume 4937, p. 437.)
47 A final indication that no exclusive right to the fishery was granted is found in Order-in-Council No. 1036, approved and ordered on July 29, 1938 transferring the underlying title to reserves in British Columbia from the Province to Canada. It stated that "the lands set out in schedule attached hereto be conveyed to His Majesty the King in the right of the Dominion of Canada in trust for the use and benefit of the Indians of the Province of British Columbia...". The Cheakamus Reserve No. 11 (4,037.90 acreage) is described in the following manner:
New Westminster District, on the left bank of the Squamish River, between Chemi Creek and Cheakamus River.
(Order-in-Council No. 1036, July 29, 1938.)
48 In conclusion, there appears to be clear evidence that it was never the intention of the Crown to provide the Bands with an exclusive fishery in waters adjacent to the reserves. In particular, there was no evidence that the Squamish Indian Band was granted an exclusive fishery in the Squamish River at the Cheakamus site.
2.The Crown's Fiduciary Duty
49 The appellants also argue that the Crown was under a fiduciary duty to include the river as part of the reserve in order to secure the fishery for the Indians. Wallace J.A. commented on this submission by the appellants by stating the following (at pp. 238-39):
The Lewises contend that fiduciary obligations of the Crown support the finding that the fishery is part of the reserve. They submit that the Crown's fiduciary responsibility to the Indian people does not require a triggering event (such as a surrender) for it to arise, but rather that it is founded generally on the relationship between the Crown and Indian Bands in relation to the land. Such a duty, it is said, requires that Indian rights be construed liberally in favour of Indians in that the Crown is honour bound not to diminish Indian interests.
It appears to me 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 location of the reserve and the application of the principles set forth in Sparrow. The reserve, together with the priority which Sparrow establishes, gives the Band members secured access to a fishery in which they have a constitutional priority. The members of the Band have a first call on the fishery harvest for sustenance and ceremonial purposes, subject only to the requirements of conservation. This proper and just result clearly vindicates the honour of the Crown.
50 The appellants respond to Wallace J.A.'s conclusion that the establishment of the Cheakamus Reserve was not to protect the fishery by its inclusion within the reserve, but to assure physical access to a traditional fishery. In their opinion, mere access is not enough as it does not serve to protect the interest of the Squamish Tribe in the fishery. The appellants explain that the fisheries in non-tidal waters are proprietary. In this case, the proprietary interest in the Squamish River lies in the Province. Therefore, the exercise of provincial powers could, if the fishery was not part of the reserve, have an incidental effect on the very fishery that nourishes the identity of the Squamish tribe.
51 The appellants also submit that the decision Sparrow, supra, is not sufficient for the following reasons: (1) the proprietary interest has to be held by the federal government or the fishery cannot by assured, despite the location of the reserve. The appellants state for example that the river could be alienated to other uses, such as resource extraction or construction; (2) the Crown's duty was to protect Indians in the exercise of their fishing rights. Simple proximity to a fishery, by providing a place of access, offers no legal protection. It may establish access in fact, but not necessarily in law; and (3) the Crown could not have anticipated the 1982 constitutional amendments in 1875 so it can only be concluded that the Crown's action in 1876 to allot the reserve was intended to be sufficient at that time to fulfil its obligation to the Indians.
52 Even if the process of reserve allotment in British Columbia was to protect the prior rights of Indian nations by the establishment of reserves, the Crown did not breach its fiduciary duty, assuming, without deciding, that one existed at the time of allotment. 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 Squamish Indian Band was honoured by providing fishing stations for their use. Furthermore, in my view, the fact that the Crown did not secure a larger access to the fishery for the Squamish Indian Band, in addition to the fishing stations, did not amount to exploitation: see Guerin v. The Queen, [1984] 2 S.C.R. 335, and Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344. Accordingly, if the Crown had a fiduciary duty to include the river as part of the reserve in order to secure the fishery for the Indians as argued by the appellants, I believe that it was fulfilled.
3.The Crown's Implicit Intention -- Transfer by Implication
53 The appellants also rely on U.S. cases to indicate that in the creation of reserves, the implicit intention was to include the adjacent waters. They particularly try to support this position by highlighting the similarities between this appeal and the decision in Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918). In that case, the grant by Congress described the Indian reservation as, in part, the "body of lands known as Annette Islands" (p. 79). The Supreme Court held that the body of lands known as Annette Islands embraced the intervening and surrounding waters. Van Devanter J. stated, at p. 89, that "[t]he Indians could not sustain themselves from the use of the upland alone. The use of the adjacent fishing grounds was equally essential. Without this the colony could not prosper in that location." In my view, that case can be distinguished on its unique circumstances involving islands and intervening waters and is therefore of no assistance in determining the boundaries of the Cheakamus Indian Reserve No. 11.
Conclusion
54 In conclusion, the appellants' contention that the government took the necessary steps to protect the fishery of the Squamish River when the reserve was allotted to the Squamish Indians and therefore it forms part of the reserve must be rejected. First, the historical evidence does not support such a contention. There was no intention to create exclusive fisheries during either the pre-Confederation period or the post-Confederation period. Also, if I assume, 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, I believe that it was fulfilled. If Indian fishing was protected through reserve creation, it was only at "fishing stations". Consequently, the appellants' first argument must fail.
B. The Ad Medium Filum Aquae Presumption
55 The appellants also argue that the By-law authorizes the fishing activities in question because the reserve has a proprietary interest in the river bed itself which would include the fishery. This submission pertains to whether the bed or any part of the bed of the Squamish River is "on the reserve" by operation of the presumption ad medium filum aquae.
Application of the Ad Medium Filum Aquae Presumption in Canada
56 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, whether the body of water is navigable or not: Halsbury's Laws of England, vol. 49 (4th ed. 1984), at para. 381 et seq. This presumption can be rebutted either by the terms of the instrument, or circumstances surrounding the grant or conveyance indicating a different intention: see G. V. La Forest, Water Law in Canada -- The Atlantic Provinces (1973), at p. 243; Micklethwait v. Newlay Bridge Co. (1886), 33 Ch. D. 133, at p. 145. This presumption was made applicable in British Columbia as of November 19, 1858 by virtue of the English Law Ordinance, 1867, S.B.C. 1867, 30 Vict., No. 70, s. 2 (now the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 2), so far as it was "not from local circumstances inapplicable".
57 At the outset, it should be noted that, since the ad medium filum aquae presumption relates to ownership of riparian land, the question remains as to whether it applies to Indian reserves. For the purposes of this appeal, given that the application of the presumption to Indian reserves was not argued by either of the parties, I will assume without deciding that the ad medium filum aquae presumption applies to reserves.
58 Van der Hoop Co. Ct. J. in applying the ad medium filum aquae presumption to the Squamish River considered that the decision in the B.C. Fisheries case, supra, governed the appeal as it concerned navigable non-tidal waters. The Privy Council in that case was concerned with the interpretation of a grant that was conveyed by the Province of British Columbia to the Dominion Government. The grant related to a strip of land within which the planned national railway line through British Columbia would be built. This strip of land was not to exceed 20 miles in width on each side of the railway line, and came to be known as the "railway belt". In answering the question as to what passed to the Dominion under the grant, the Privy Council was "unable to see any ground for construing the grant of the railway belt as excluding such lands situated within it as are covered with water. The solum of a river bed is a property differing in no essential characteristic from other lands" (p. 167). The appellants also rely on this decision and others to argue that in fact navigability is not of any import because the Privy Council did not state any principle with respect to the relevance of navigability or non-navigability to the application of the ad medium filum aquae presumption.
59 Wallace J.A. disagreed with the applicability of that decision for the following reason (at p. 236):
The Privy Council, in that case, was not considering a grant of designated territory with a river located outside the land granted, but adjacent to it. The Privy Council merely held that the plain language of the grant of the railway belt transferred whatever lands came within its parameters -- whether covered with water or not.
I agree with his conclusion and consider that the B.C. Fisheries case, supra, does not settle the question of the applicability of the presumption.
60 The appellants also rely on Canadian Exploration, supra, where this Court held that the presumption applied in British Columbia. However, Locke J., in applying the ad medium filum presumption, noted that the water course in question was not navigable. He also took care to distinguish tidal and navigable waters from those bodies of water to which the presumption applies -- non-tidal and non-navigable.
61 Moreover, several cases have made it clear that, in western Canada at least, the ad medium filum presumption does not apply to navigable rivers: see the Manitoba Court of Appeal decision Re Iverson and Greater Winnipeg Water District (1921), 57 D.L.R. 184, the Alberta Court of Appeal decision Flewelling v. Johnston, [1921] 2 W.W.R. 374, and this Court's decision Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3. An overview of these cases can be found in the reasons of my colleague, Cory J., in Nikal, supra (at paras. 64 to 72).
62 As a result of the foregoing jurisprudence, I conclude that the applicability of the ad medium filum aquae presumption is determined by the navigability of the body of water at issue. It is also relatively clear that the ad medium filum presumption cannot apply to navigable rivers in British Columbia, as it was also held inapplicable in Manitoba and in Alberta, which have similar statutory language. Assuming without deciding that the ad medium filum aquae presumption applies to Indian reserves, the conclusion I have reached is sufficient to dispense with the appellants' position, as the trial judge explicitly found that the Squamish River was navigable. Accordingly, 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.
C.The Interpretation of Section 81(1)(o) of the Indian Act
63 The appellants' final argument is that notwithstanding the fact the Squamish River is outside the Cheakamus Reserve No. 11, the provisions of By-law No. 10 nevertheless apply to it, rather than the Fisheries Act and its regulations.
64 By-law No. 10 of the Squamish Indian Band was passed in 1977 and made under the authority of s. 81(1)(o) of the Indian Act (formerly s. 81(o)), which provides:
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;
65 The appellants argue that the phrase "on the reserve" should be interpreted to include waters immediately adjacent to the reserve. Alternatively, they submit that the expression is ambiguous and that any ambiguity should be resolved to satisfy the manifest intention of s. 81(1)(o) of the Indian Act to permit band councils to regulate a resource of fundamental importance to them, the fishery. As agreed by the parties, if the term "on the reserve" in the Indian Act is given the interpretation favoured by the appellants, the by-law in question would constitute a defence to the charges under the British Columbia Fishery (General) Regulations.
1.The General Principles of Interpretation of Enactments Dealing with Indians
66 The canons of interpretation of statutes relating to Indians were set forth in Nowegijick v. The Queen, [1983] 1 S.C.R. 29, where it was said at p. 36 that "treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians". In Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, in discussing Nowegijick, La Forest J. stated at p. 143 that different considerations must apply in the case of statutes relating to Indians:
Rather, I think the approach must be to read the Act concerned with a view to elucidating what it was that Parliament wished to effect in enacting the particular section in question. This approach is not a jettisoning of the liberal interpretative method. As already stated, it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. Thus if legislation bears on treaty promises, the courts will always strain against adopting an interpretation that has the effect of negating commitments undertaken by the Crown; see United States v. Powers, 305 U.S. 527 (1939), at p. 533.
At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote. [Emphasis added.]
With those guidelines and traditional rules of statutory interpretation in mind, it is my opinion that, as I shall presently discuss, the phrase "on the reserve" in s. 81(1)(o) of the Indian Act means within the boundaries of the reserve. In order to determine the meaning of the phrase, I will analyze in turn the wording, context, and purpose of the statutory provision: see P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991); and Driedger on the Construction of Statutes (3rd ed. 1994).
(a)The ordinary and natural meaning of the word "on"
67 The appellants submit that the ordinary meaning of the word "on" embraces the concept of being adjacent to a thing. In fact, the Concise Oxford Dictionary (9th ed. 1995), defines the term as "supported by or attached to or covering or enclosing". In my opinion, however, while the expression "on" can, in some situations, mean "adjacent to" or "near", that is not its primary meaning. Its principal usage denotes a situation where one object or thing is over or supported by another, not beside or contiguous with it. In Webster's Third New International Dictionary (1986) the word "on" is defined as "1: in or into the position of being in contact with the upper surface of something or of being supported from beneath by the upper surface". Thus 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".
(b)The context
68 In order to arrive at the correct interpretation of statutory provisions, the words of the text must be read in context: see Driedger on the Construction of Statutes, supra, at p. 193, and Côté, supra, at p. 257.
69 The phrase "on the reserve" found within the Indian Act should receive the same construction wherever used throughout the Indian Act. This is consistent with the view of this Court in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385. In that decision, Cory J. at p. 400 stated that "[u]nless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act". See also R. v. Zeolkowski, [1989] 1 S.C.R. 1378.
70 When one examines other sections of the Indian Act where the expression "on the reserve" (or “on a reserve”) can be found, it is apparent that Parliament had only the intention of limiting the scope of a Band's power to within the boundaries of the reserve so that the meaning of "on" which accords with that intention should be adopted. The following sections of the Indian Act are particularly supportive in this respect:
4. . . .
(3) Sections 114 to 122 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.
14. . . .
(3) The council of each band shall, forthwith on receiving a copy of the Band List under subsection (1), or a list of additions to and deletions from its Band List under subsection (2), post the copy or the list, as the case may be, in a conspicuous place on the reserve of the band.
30. A person who trespasses on a reserve is guilty of an offence and liable on summary conviction to a fine not exceeding fifty dollars or to imprisonment for a term not exceeding one month or to both.
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;
87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely,
. . .
(b) the personal property of an Indian or a band situated on a reserve. [Emphasis added.]
71 It seems that the term "on the reserve" found in other provisions of the Indian Act connotes a meaning of "inside" or "within". An identical interpretation of the same word in s. 81(1)(o) would be the most consistent with other provisions of the Indian Act. Thus 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 as the appellants' argument involves.
72 Furthermore, an examination of the French text supports "on the reserve" as meaning in or within or inside the boundaries of the reserve. The general rule in that respect is that both versions of a statute must be read together to assess Parliament's intention: see Côté, supra, at p. 275, and Driedger on the Construction of Statutes, supra, at p. 219. In this appeal, relying on both versions is to lend further weight to the presumption in favour of ordinary meaning: see Driedger on the Construction of Statutes, at p. 222, and R. v. Hasselwander, [1993] 2 S.C.R. 398, at pp. 415-16.
73 The French text of s. 81(1)(o) reads as follows:
81. (1) Le conseil d'une bande peut prendre des règlements administratifs, non incompatibles avec la présente loi ou avec un règlement pris par le gouverneur en conseil ou par le ministre, pour l'une ou l'ensemble des fins suivantes:
. . .
o) la conservation, la protection et la régie des animaux à fourrure, du poisson et du gibier de toute sorte dans la réserve; [Emphasis added.]
74 In the dictionary Le Petit Robert 1 (1989), the word "dans" is defined as "dedans", "à l'intérieur de", "au milieu", and "au sein". The French version is incompatible with "adjacent à" or "près de". Thus it seems that the French definition as well clearly conveys the idea that the term "on the reserve" means "within the reserve".
75 Therefore, a contextual analysis and an examination of the French version lead me to conclude that the words "on the reserve" cannot be understood as extending beyond the actual boundaries of a given reserve.
(c)Purpose of the provision
76 The appellants submit that a broad purposive construction of the phrase "on the reserve" is justified in that s. 81(1)(o) of the Indian Act is intended to provide Indians with the means by which the government of a reserve-based Indian community may regulate resources of vital importance, in this case the fishery. They further argue that the general goal of the Indian Act is to protect the sustaining practices of aboriginal persons, practices which inform a definition of their rights and identity as Indians. Therefore, s. 81(1)(o) and the by-law enacted pursuant to the Act should not be limited to the boundaries of a reserve but should expand to lands that include such a vital resource.
77 In my view, although their suggested interpretation goes further towards achieving Parliament's objective of protecting and maintaining Indian rights, it is not an interpretation supported on the language or goal of the section.
78 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. The interpretation proposed by the appellants would create numerous and difficult uncertainties which would not, in my view, have been the intention of Parliament. For example, in the present appeal, could Parliament's intention have been to allow one Band to manage and control one part of the river and yet to permit the fishery in the remainder of the river to be managed and controlled by the ordinary regulations made under the Fisheries Act? Such a division of management powers is so replete with difficulties that most likely Parliament did not contemplate it.
79 An expansive interpretation of the by-law-making power would also create the problem of determining the "off reserve" reach of a by-law. For example, whose by-law is to govern when Band Councils on opposite sides of a river both pass by-laws? In addition to fish, s. 81(1)(o) deals with fur-bearing animals and other game which would also be affected by an expansive interpretation of the term "on the reserve".
80 Based on the above analysis, I conclude that the phrase "on the reserve" in the context of s. 81(1)(o) 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". I believe it is clear that 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 Squamish Indian Band By-law No. 10 defines "Squamish Indian Band waters" to be those which are "situate[d] upon or within the boundaries of Reserves", lead me to conclude that Parliament never intended that such a fishing by-law, passed by the Band Council pursuant to s. 81(1)(o) of the Indian Act, should have an extra-territorial effect. Accordingly, it is the Fisheries Act and its Regulations, not the By-law, which apply to the Squamish River.
5. Conclusion and Disposition
81 The major issue in this appeal is whether the By-law in question extends to the Squamish River. I do not think it does for the following reasons. First, the extensive evidence presented before this Court clearly indicates that it was never the Crown's intention to allocate exclusive fisheries, to anyone, in rivers adjacent to reserves. Second, the middle thread of the Squamish River cannot be included within the Reserve by the operation of the ad medium filum aquae presumption. Finally, a correct interpretation of s. 81(1)(o) of the Indian Act allows the by-law to be applied only within the actual reserve boundaries and therefore it does not extend to the River.
82 Based on the foregoing reasons, I would dismiss the appeal on the basis that 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. Therefore, By-law No. 10 cannot constitute a complete defence to the charges against the appellants pursuant to the British Columbia Fishery (General) Regulations passed under the Fisheries Act as it does not have any force or effect beyond the boundaries of the Cheakamus Reserve. Accordingly, the decision of the British Columbia Court of Appeal is upheld and the convictions on the charges of illegal fishing contrary to the British Columbia Fishery (General) Regulations and the Fisheries Act are maintained.
Appeal dismissed.
Solicitors for the appellants: Ratcliff & Company, North Vancouver.
Solicitor for the respondent: George Thomson, Ottawa.
Solicitors for the intervener the Attorney General of British Columbia: Fuller, Pearlman, Victoria.
Solicitors for the intervener the Attorney General for Alberta: Parlee McLaws, Calgary.
Solicitors for the intervener the Alliance of Tribal Councils: Mandell Pinder, Vancouver.
Solicitors for the interveners the BC Fisheries Survival Coalition and the BC Wildlife Federation: Russell & DuMoulin, Vancouver.
Solicitors for the intervener the Canadian National Railway Company: Ladner Downs, Vancouver.