[1996] 1 S.C.R. R. v. Nikal 1013
Jerry Benjamin Nikal Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of British Columbia,
the Attorney General for 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 Interveners
Indexed as: R. v. Nikal
File No.: 23804.
1995: November 30; 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 -- Aboriginal rights -- Fishing rights -- Appellant charged with fishing without a
licence -- Whether licensing scheme infringing appellant's aboriginal rights and therefore
not applying to him -- Constitution Act, 1982, ss. 35(1), 52 -- British Columbia Fishery
(General) Regulations, SOR/84-248, s. 4(1).
Appellant is a native charged with fishing without a licence contrary to s. 4(1) of the
British Columbia Fishery (General) Regulations. Native persons, although required to
have a licence, were entitled to a free permit to fish for salmon in the manner they
preferred. Appellant had been gaffing salmon in the Bulkley River where it flows through
his reserve. He took the position that the licensing scheme infringed his aboriginal rights
as provided in s. 35(1) of the Constitution Act, 1982 and was therefore inapplicable. He
further contended that the river is, at this point, part of his reserve so that only the band
by-law, which allowed band members unrestricted fishing in the river, applied.
Appellant was acquitted at trial and the acquittals were upheld by the Summary
Conviction Appeal Judge. The acquittals were set aside by the Court of Appeal. The
constitutional question before this Court queried whether s. 4(1) of the Regulations and
licences issued under it were of no force or effect with respect to the appellant in the
circumstances by reason of the aboriginal rights protected by s. 35 of the Constitution
Act, 1982. In essence, two issues are raised: (1) whether the band's fishing by-law applies
to the Bulkley River where it flows through the band's reserve, and (2) whether the
licence requirement under s. 4(1) of the Regulations infringes the appellant's aboriginal
rights contrary to s. 35.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
SNIPPETS:
Her Majesty The Queen Respondent and The Attorney General of British Columbia, the Attorney
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians -- Aboriginal rights -- Fishing rights -- Appellant charged with fishing without a
35, 52 -- British Columbia Fishery Regulations, SOR/84-248, s.
He further contended that the river is, at this point, part of his reserve so that only the
In essence, two issues are raised: whether the band's fishing by-law applies to the Bulkley
No evidence supported the position that the Department of Indian Affairs had intended to
The portion of the river flowing through the reserve does not form part of the reserve
Thirdly, even if the presumption could be said to apply, it was rebutted in light of the
The onus of establishing a prima facie infringement of an aboriginal right rests on the
This right cannot automatically deny the ability of the government to set up a licensing
Sparrow set out questions to be addressed in determining if an infringement of aboriginal or
for the intervener the Attorney General of British Columbia.
for the intervener the Canadian National Railway Company.
He lives in the village of Moricetown which is within the boundaries of Moricetown Reserve
Therefore, a common law property concept which depends on ownership, such as ad medium filum
This evidence, taken from documents in the public archives, demonstrates that in both periods
For example, on December 17, 1875, W. F. Whitcher, Dominion Commissioner of Fisheries, sent a
(National Archives of Canada, Record Group 10, Volume 1972, File No. 5530.)
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