R. v. Derriksan

Supreme Court of Canada – [1976] 6 W.W.R. 480

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British Columbia Aboriginal rights

Issue

Does the Royal Proclamation, 1763 apply to Okanagan Indians, if so, does it create an Aboriginal right to fish for food in the territory near Peachland, considered their traditional fishing grounds?

Decision

Since Derriksan does not hold an aboriginal right through a treaty, the Fisheries Act and its Regulations can apply (unanimous decision).

Parties

Between: Noll Derriksan

And: The Crown of British Columbia

Intervener: Canada

Facts

Derriksan is an Okanagan Indian and a member of the Westbank Indian Band of British Columbia. In 1970, he was fishing for his subsistence without a permit near Peachland, in the county of Yale, on traditional fishing ground for Okanagan Indian. Derriksan was charged with three offenses. The first was for catching Kokanee in a stream where the fish go to spawn. The second and third charges concerned the method he used for fishing. All charges were made under the Fisheries Act.

Arguments

The Crown: The enactments provided that “no person shall”, creating no particular exemption for Indians. Hence, the regulations were meant to apply to Indians in general, rendering Derriksan subject to the penalties. The protections of the Royal Proclamation, 1763 cannot be applied in this case, British Columbia not being subject to it.

Derriksan’s: Aboriginal title to the lands was obtained by the Indian tribes of British Columbia, which were used and inhabited for generations. One essential element that linked the Aboriginals to the land is the right to hunt and fish for food. Even if the Royal Proclamation, 1763 does not apply in B.C., the Indians’ Aboriginal title in British Columbia has not been extinguished as the argument is set out in this court’s decision in the Calder case

Decision of the lower courts

British Columbia Provincial Court (1971): Derricksan is convicted on the three counts.

British Columbia Supreme Court (1974): The convictions are reaffirmed.

British Columbia Court of Appeal (1975): The appeal is dismissed.

Reasons for Judgement

Jury

Laskin, Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz, de Grandpré

Reason

The Court delivered its judgment on the bench without any substantial deliberation.

Laskin, speaking for the Court, did not accept the argument that Derriksan held an aboriginal right to fish for food because his band supposedly held the title to the land where he was caught fishing without a permit. Under section 88 of the Indian Act, status Indian can be subjected to provincial laws of general application, except when they are in conflict with an aboriginal right given by treaty or by a federal statute. Since Derriksan did not hold an aboriginal right through a treaty, the Fisheries Act and its Regulations can by applied to him.

Impact

Ever since Sparrow, the Court’s reasoning in R. v. Derriksan is no longer applicable. In 1982, existing aboriginal rights, such as the right to fish for food for British Columbia’s First Nations, were given a constitutional protection after the repatriation of the Constitution Act, 1982. This means that any legislation interfering with an existing aboriginal right constitute an infringement of section 35 (1) of the Constitution Act, 1982. If the concerned government level cannot justify the violation by invoking either a substantial legislative objective or that its actions upheld the “honour of the Crown”, the aboriginal right will prevail.

Derriksan was the first case where an economical right, claimed as an aboriginal right, was considered for an appeal by the Supreme Court (Walsh, 2008).