Supreme Court of Canada –  1 S.C.R. 1013
Delivered on the same day as R. v. Lewis.
As in Lewis, the Court bases itself on the intention of the Crown to determine if the band has the right, or not, to regulate a waterway. Here, the Aboriginal won its case since the Court considered that even if the band could not regulate, the provincial regulation did not apply either since it infringed its aboriginal right to fish.
Does the fishing by-law adopted by the Band apply to the section of the Buckley River that crosses the reserve? Do the British Columbia Fishery Regulations and the requirement for Aboriginal people to have a fishing licence infringe on Nikal’s aboriginal right to fish for food as protected under section 35 (1) of the Constitution Act, 1982?
The fishing regulation of the Band cannot apply to the Buckley River, but the province’s regulation infringes Nikal’s aboriginal right to fish. He was acquitted (7 judges against 2).
Between: Jerry Benjamin Nikal
And: the Crown of Canada
Interveners: British Columbia, Alberta, the Alliance of Tribal Councils, Delgamuukw et al., the Fisheries Council of British Columbia, the Canadian National Railway Company, the BC Fisheries Survival Coalition and the BC Wildlife Federation
Nikal is a Wet’suwet’en Indian from the Moricetown Band and lives on Moricetown Reserve No. 1 in British Columbia. The Buckley River passes through the reserve.
In 1986, officials from the Department of Fisheries and Oceans saw the appellant fish salmon from the Buckley River. He was charged under section 4 (1) of the British Columbia Fishery (General) Regulations for fishing without a licence. Aboriginal people such as Nikal could apply for a free licence in order to fish in their most preferred manner.
Nikal: The licencing scheme infringed on his Aboriginal right to fish for food as protected by section 35 (1) of the Constitution Act, 1982 and was therefore inapplicable. The river is part of his reserve, thereby subjecting fishing to the band by-law.
The Crown: There was no infringement of Aboriginal rights in imposing the requirement of a licence for fishing and that conservation objectives would justify such an infringement, if there was one.
British Columbia Provincial Court (1989): Nikal is released from the charges since the Buckley River is within the reserve and therefore subject to the band’s by-law rather than the Fisheries Regulations.
Supreme Court of British Columbia (1990): The river is not part of the reserve and is thereby subject to the Fisheries Regulations. The licencing regime’s objective of conservation is legitimate. However, in the case of the Buckley River, the salmon stocks were healthy and the conservation objectives were not justifiable. The acquittal is maintained.
British Columbia Court of Appeal (1993): There is no prima facie (at first sight) infringement of Aboriginal rights and the river coan not be considered to be part of the reserve.
Lamer, La Forest, Sopinka, Gonthier, Cory, Iacobucci, Major
An examination of the Crown’s fishing policy throughout the years shows that the band was never granted an exclusive fishery on the Buckley River. The facts showed a general intention on the part of the Crown to allot only land to the Moricetown Band and not river. Therefore, the Buckley River is not considered to be “on the reserve” and the band’s by-laws cannot legislate its use.
The evidence shows that Nikal’s aboriginal rights comprised the right to fish for food and for ceremonial purposes.
The requirement of a fishing licence is not derogatory, but some of the conditions of the fishing licence are infringements, including the restriction to fish for food only, the imposition of a fishing period on Aboriginal people, the requirement that the fish collected only be used by the fisherman or his family and the requirement that salmon be the only species allowed to be fished. Other conditions appear to contravene his Aboriginal right, like the predetermination of the ultimate consumer, the allowing of only selected uses for the fish (for food, or for ceremonial or religious purposes), the obligation to fish for steelhead and the determination of a fishing period.
The nature of the situation has to be considered. In this case, the Crown did not produce any evidence to convince the judge of its regulatory objectives. Hence, Nikal’s appeal is allowed.
See R. c. Lewis.
R. v. Lewis,  1 S.C.R. 921
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, in Journal of Environmental Law and Practice 19: 225-266.