Supreme Court of Canada –  1 S.C.R. 921
Delivered the same day as R. c. Nikal.
The Supreme Court establishes in a quite restrictive way the limits of a reserve as excluding the bed of a river, therefore refusing the Indians the right to legislate regarding these waters to regulate fishing activities. The Fisheries Act applies.
Can the Squamish Band Council’s by-law be applied outside the boundaries of the reserve, and specifically to the fishing camps and to the bed of the Squamish River?
The word “reserve” is limited to the inside of its boundaries, and therefore the river is not included (unanimous decision).
Between: Allen Jacob Lewis, Allen Frances Lewis, Jacob Kenneth Lewis
And: the Crown of Canada
Interveners: British Columbia, Alberta, the Alliance of Tribal Councils, the BC Fisheries Survival Coalition, the BC Wildlife Federation and the Canadian National Railway Company
In 1977, the Squamish Band Council adopted a by-law authorizing net fishing in the surrounding areas of the Cheakamus Reserve in British Columbia.
In 1985 and 1986, in three instances, Allen, Allen Frances and Jacob Lewis, members of the Squamish Indian Band and residing on the Cheakamus Reserve, went net fishing on the Squamish River on the part adjacent to the reserve on two occasions and a third time on the west bank of the river. They were charged pursuant to the British Columbia Fisheries (General) Regulations which prohibit net fishing on the Squamish River
The Lewises: The Squamish Indian Band By-law No. 10 authorizes them to fish at the time and in the manner in question since the fishery and the bed of the Squamish River are part of the Cheakamus Reserve. The expression “on the reserve” must be constructed to include the waters adjacent to the reserve territory. The by-law authorizes band members to fish “upon Squamish Indian Band waters,” which are defined as “water situated upon or within the boundaries of Reserves.” The by-law was passed pursuant to the Indian Act, which authorizes a band council to make by-laws for the preservation, protection and management of fish on the reserve.
The Crown: The legislator’s intention was not to give the by-laws an extra-territorial effect. Thus, the Fisheries Act should apply in this case, not the Squamish Band By-law.
British Columbia Provincial Court (1989): The Lewises were convicted and the by-law was declared not to respect the Indian Act. Even though the Band has the power to regulate fish conservation and protection on the reserve, it cannot enact by-laws with an extra-territorial scope.
British Columbia County Court (1989): Two of the convictions were repealed but the third one, concerning their fishing activities on the Squamish River’s west bank, stood. The limit of the reserve extended out to the mid-line of the Squamish River. According to the judge, By-law No. 10 amounted to a complete defense in instances where fishing activities are practiced on the reserve side of the river.
British Columbia Court of Appeal (1993): The County Court’s decision is quashed.
Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major
The Lewises’ defence cannot be allowed since the Band Council’s By-law No. 10 cannot be used in regard to the fishery on the Squamish River near the Cheakamus Reserve.
The historical context indicates that it was never the intention of the Department of Marine and Fisheries to assign to the Squamish a fishery in perpetuity. Documentary evidence reveals the Crown’s intention to deal with the fishing rights of Natives as well as non-Natives on an equal basis by giving both groups fisheries, but not making the Aboriginal fisheries part of their reserve. There is no evidence that the Squamish Band was given an exclusive fishery near its reserve site. By creating these fishing stations, the Crown fulfilled its fiduciary duty even though they were not included in the reserve territory.
The interpretation that should be given to the term “on the reserve” in the Indian Act is its “ordinary and common sense meaning.” Accordingly, it should be understood as meaning “within the reserve” or “inside the reserve” or “located upon or within the boundaries of the reserve.” Also, the Band Council’s By-law identifies “Squamish Indian Band waters” to be those which are “situate[d] upon or within the boundaries of Reserves.” This shows the Council’s intention not to give their fishing by-laws an extra-territorial effect. Hence, the Court concluded that the Fisheries Act and its Regulations were the appropriate legislative regime to apply to the Squamish River, and the convictions were upheld.
Ad medium filum aquae is a principle of British common law concerning the ownership of the bed of a river. If a title to land adjoining an inland river is granted, there is a presumption to include the river bed area between the banks and the river’s mid-line. The control over the river bed can comprise an exclusive right to the fisheries and to develop hydro- electrical power (Hopley and Ross, 2009: 227-228). The presumption does not apply to navigable waters in some regions.
The presumption was abrogated in some provinces and territories, as in the North West Territories in 1894 (Id.: 228), but is still enforced in Manitoba and Ontario (Id.: 229). As for Quebec, the only province governed by civil law, the provincial Crown is the owner of the beds of navigable rivers up to the high-water line (Civil Code of Quebec, sect. 918). With Nikal, the Lewis decision excluded the application of this common law presumption to the Western provinces (Hopley and Ross, 2009: 231).
The events leading up to this decision happened before 1992, the year the Department of Fisheries and Oceans launched its Aboriginal Fisheries Strategy (AFS). Under this program, Aboriginal people living in the Pacific region now have priority to fish for food and for social or ceremonial purposes over all other types of fisheries (DFO, 2008).
See R. v. Kapp, 2008 SCC 41 for more information on public policies concerning Aboriginal fishing rights in British Columbia.
R. v. Nikal,  1 S.C.R. 1013
McDiarmid Lumber Ltd. v. God’s Lake First Nation,  2 S.C.R. 846
Civil Code of Quebec, S.Q. 1991, c. 64, s. 918.
Department of Fisheries and Oceans. 2008. Aboriginal Fisheries Strategy (AFS). On-line. http://www.pac.dfo-mpo.gc.ca/tapd/afs_e.htm. Retrieved on June 1, 2010.
Hopley Scott and Susan Ross. 2009. Aboriginal Claims to Water Rights Grounded in the Principle Ad Medium Filum Aquae: Riparian Rights and the Winters Doctrine, Journal of Environmental Law and Practice, 19: 225-266.