REGINA v. DERRIKSAN

(1974), 52 D.L.R. (3d) 744 (also reported: [1975] 1 W.W.R. 56, (1974) 20 C.C.C. (2d) 157)

British Columbia Supreme Court, Aikins J., 4 September 1974

(On Appeal from judgment of British Columbia Provincial Court, supra p.492)

(Appealed to British Columbia Court of Appeal, infra p.507)

[Calder et al. v. A.-G. B.C. (1973), 34 D.L.R. (3d) 145, [1973] S.C.R. 313, [1973] 4 W.W.R. 1; affg 13 D.L.R. (3d) 64, 74 W.W.R. 481; affg 8 D.L.R. (3d) 59, 71 W.W.R. 81, apld; R. v. White and Bob (1964), 50 D.L.R. (2d) 613, 52 W.W.R. 193 [affd 52 W.W.R. 481n, [1965] S.C.R. vi], refd to]

APPEAL by the accused by way of stated case from his con- victions for unlawful fishing contrary to s. 34 of the Fisheries Act (Can.).

B. F. Fraser, for accused, appellant.

F. H. Herbert, Q.C., for the Crown.

AIKINS, J.:--This is an appeal by way of stated case. It is conceded that the appeal is properly brought as to formal re- quirements. The appellant was charged with three offences under the British Columbia Fishery Regulations, P.C. 1954- 1910, SOR Con. 1955, vol. 2, p. 1627 [am. SOR/68-273, s. 6], made pursuant to s. 34 [am. R.S.C. 1970, c. 17 (1st Supp.), s. 4] of the Fisheries Act, R.S.C. 1970, c. F-14.

The first count was laid under s. 81(1) (d) of the Regula- tions which reads in part as follows:

81(1) . . . no person shall

(d) fish for, catch or kill kokanee in creeks or streams, up which such fish go to spawn;

The substantive part of the first count reads:

. . . that you, on the fourth day of October, A.D. 1970, near Peach- land, in the County of Yale, Province of British Columbia, did catch kokanee in a stream, to wit, Peachland Creek, up which such fish go to spawn . . .

The second count was laid under s. 80(1) (e) of the Regula- tions which reads in part as follows:

80 (1) No person shall

(e) catch or attempt to catch a fish by impaling it on a hook through some part of its body instead of luring the fish to take the hook into its mouth as in angling;

The substantive part of the second count reads:

. . . that you, on the fourth day of October, A.D. 1970, near Peach- land, in the County of Yale, Province of British Columbia, did catch a fish by impaling it on a hook through some part of its body, instead of luring the fish to take the hook into its mouth, as in angling . . .

The third count is laid under s. 76(1) of the Regulations which reads:

76 (1) Except as otherwise authorized by these Regulations, no person shall fish for, take, or kill any game fish, salmon, northern pike, walleye, whitefish or sturgeon in non-tidal waters except by angling.

As to this count reference should also be made to s. 80(2) of the Regulations, as follows:

80(2) Any person may use a spear or bow and arrow to take fish other than game fish, salmon, whitefish or sturgeon.

The substance of the third count is this:

. . . that you on the fourth day of October, A.D. 1970, near Peach- land, in the County of Yale, Province of British Columbia, did take

a game fish, to wit, kokanee, in non-tidal waters in a manner other than by angling . . .

These are the questions propounded for the opinion of the Court:

1. Was I correct in holding that Noll Derriksan as an Okanagan Indian has no aboriginal right to fish for food for his own use on ancient tribal territory, namely, at or near Peachland Creek, known to him as Deep Creek?

2. Was I correct in holding that the Royal Proclamation of 1763 does not apply to the Okanagan Valley of the Province of British Columbia ?

3. Was I correct in holding that it would only be if the Royal Pro- clamation of 1763 were applicable to Okanagan Indians, that pur- suant to the provisions of Section 88 of the Indian Act, the accused, Noll Derriksan could have lawfully done the acts complained of?

Section 88 of the Indian Act, R.S.C. 1970, c. I-6, referred to in the third question, is as follows:

88. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are in- consistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

The Provincial Judge set out his findings of fact in the stated case. Those numbered 1, 2 and 10 are relevant to the issues raised by the questions propounded for the opinion of the Court. I reproduce the three findings of fact, as follows:

1. The accused is an Indian and a member of the Westbank Indian Band, within the meaning of the Indian Act, Chapter 149, of the Revised Statutes of Canada, 1952, and Amendments thereto.

2. That at all material times herein, the accused caught Kokanee as alleged, for food and not for sale.

10. That generations of Okanagan Indians have fished for Kokanee salmon in Peachland Creek during the spawning season and that Peachland Creek, or Deep Creek as it is known to the Okanagan Indians, must still be considered as traditional fishing ground for Indians of the Okanagan Valley.

The convenient course is to first consider the second ques- tion propounded in the stated case. The Royal Proclamation, 1763, referred to in the second question is set out in the volume entitled "Appendices" of the Revised Statutes of Can- ada, 1970, App. II, at p. 123. The point involved in the second question is that it was contended that the Proclamation pro- tected, inter alia, the traditional fishing rights of the Indian people. As will appear it is my opinion that the second ques-

tion must be answered in the affirmative because, in my view, as the law stands the Proclamation has no application to British Columbia. It would not, I think, serve any useful pur- pose to set out the material part of the proclamation which, it is contended, protects or preserves the fishing rights of the Indian people of the Okanagan, but I comment that the rele- vant part of the Proclamation was extracted by Sheppard, J.A., in R. v. White and Bob (1964), 50 D.L.R. (2d) 613, 52 W.W.R. 193, and reproduced at p. 620 D.L.R., p. 200 W.W.R. The passage is also found at p. 127 of the Appendices to the Revised Statutes of Canada, 1970, App. II.

The determinative case, in my respectful view, on the ap- plicability of the Royal Proclamation, 1763 to the Province of British Columbia is Calder et al. v. A.-G. B.C. The judgments of the Court of Appeal in Calder are reported in (1970), 13 D.L.R. (3d) 64, 74 W.W.R. 481; the judgments in the Supreme Court of Canada are reported in 34 D.L.R. (3d) 145, [1973] S.C.R. 313, [1973] 4 W.W.R. 1. The judgment of Gould, J., the trial Judge in Calder, is reported in (1969), 8 D.L.R. (3d) 59, 71 W.W.R. 81. My brother Gould held that the Royal Proclamation, 1763 did not apply to British Columbia. In the Court of Appeal Davey, C.J.B.C., and Tysoe and Maclean, JJ.A., each held that the Proclamation did not apply to the Indians of or the territory of British Columbia. Mr. Justice Judson, Martland and Ritchie, JJ., concurring, held that the Proclamation had no application in British Columbia, in these words in 34 D.L.R. (3d) at p. 153, [1973] 4 W.W.R. at p. 7:

I say at once that I am in complete agreement with judgments of the British Columbia Courts in this case that the Proclamation has no bearing upon the problem of Indian title in British Columbia. I base my opinion upon the very terms of the Proclamation and its definition of its geographical limits and upon the history of the discovery, settlement and establishment of what is now British Columbia.

The dissenting judgment of Mr. Justice Hall, Mr. Justice Spence and Mr. Justice Laskin (now Chief Justice of Canada) was delivered by Mr. Justice Hall. Put shortly, the three dis- senting Justices of the Supreme Court held, on consideration of the wording of the Proclamation, earlier authority and more particularly on review of the historical background, that the Proclamation did apply to British Columbia. Mr. Justice Pigeon held that the appeal should be dismissed on the pre- liminary point that a fiat was required as a condition of juris- diction and the lack of a fiat permitting the suit against the Crown provincial was fatal. I should add that Mr. Justice

Judson at the conclusion of his reasons for judgment was of the opinion it was not necessary, in view of his conclusion as to the disposition of the appeal, to determine the jurisdic- tional question turning on the lack of a fiat under the Crown Procedure Act, R.S.B.C. 1960, c. 89, but added that he agreed with Mr. Justice Pigeon on that issue.

Mr. Fraser for the appellant concedes, and rightly in my view, that in the particular situation in Calder which I have described, the judgment of the Court of Appeal for British Columbia stands unreversed and that, therefore, the law as to the applicability of the Proclamation to British Columbia is to be found in the judgments of the Court of Appeal for British Columbia and the judgment of Mr. Justice Judson, Mr. Justice Martland and Mr. Justice Ritchie concurring, in the Supreme Court of Canada. The second question pro- pounded must be answered in the affirmative; the Provincial Judge was correct in holding that the Royal Proclamation, 1763 does not apply to the Okanagan Valley of the Province of British Columbia. Thus the argument for the appellant based on the applicability of the Proclamation fails. Without going into the detail of Mr. Fraser's very able argument, it is sufficient to say that the argument is that under s. 88 of the Indian Act the rights conferred or preserved by the Royal Proclamation, 1763 override the Fisheries Act and the British Columbia Fishery Regulations made pursuant to s. 34 of that Act which it is said, paraphrasing s. 88, are laws of general application in force in British Columbia.

I now turn to the first question which for convenience I reproduce again:

1. Was I correct in holding that Noll Derriksan as an Okanagan Indian has no aboriginal right to fish for food for his own use on ancient tribal territory, namely, at or near Peachland Creek, known to him as Deep Creek?

I should say by way of preface that it is common ground that there is no treaty which affects the Okanagan Indian people or the land or territory in which Peachland Creek is located.

The starting point in Mr. Fraser's argument on the first question is the tenth finding of fact made by the Provincial Judge which, for convenience I reproduce again here:

10. That generations of Okanagan Indians have fished for Kokanee salmon in Peachland Creek during the spawning season and that Peachland Creek, or Deep Creek as it is known to the Okanagan Indians, must still be considered as traditional fishing grounds for Indians of the Okanagan Valley.

In my view the finding of fact just reproduced may fairly

be construed as meaning that from time inmemorial the In- dian people of the Okanagan have fished Peachland Creek for kokanee during the spawning season. It is contended for the appellant that the Okanagan Indian people had an aboriginal right to fish Peachland Creek and that that right has not been extinguished. Counsel for the appellant contends that the abor- iginal right, not extinguished, is a private right and cannot be taken away by general legislation, such as is found in s. 88 of the Indian Act, without provision for compensation.

Counsel for the appellant's argument is based on the premise that the Indian tribes of British Columbia acquired aboriginal title to the lands which the various tribes used and occupied for generations in the past and that one attribute of that aboriginal title is the right to hunt and fish on tribal lands. The next step in counsel's argument is that even if, as I have found to be the case, the Royal Proclamation, 1763 protecting and preserving aboriginal rights does not run to British Colum- bia, nevertheless the Indian title to lands in British Columbia has not been extinguished. Counsel relies primarily on the judgment of Mr. Justice Hall in Calder. The view taken by Mr. Justice Hall, with Mr. Justice Spence and Mr. Justice Laskin, as his Lordship then was, concurring, is in my view concisely and accurately stated in the headnote to Calder in [1973] S.C.R. at pp. 315-6:

The proposition accepted by the Courts below that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer was wholly wrong. There is a wealth of jurisprudence affirming common law recognition of aboriginal rights to possession and en- joyment of lands of aboriginees precisely analogous to the Nishga situation.

Paralleling and supporting the claim of the Nishgas that they have a certain right or title to the lands in question was the guaran- tee of Indian rights contained in the Royal Proclamation of 1763. The wording of the Proclamation indicated that it was intended to include the lands west of the Rocky Mountains.

Once aboriginal title is established, it is presumed to continue until the contrary is proven. When the Nishga people came under British sovereignty they were entitled to assert, as a legal right, their Indian title. It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and that only by specific legislation. There was no surrender by the Nishgas and neither the Colony of British Colum- bia nor the Province, after Confederation, enacted legislation specifi- cally purporting to extinguish the Indian title nor did the Parliament of Canada.

Mr. Justice Judson in Calder points out at pp. 152-3 D.L.R., p. 7 W.W.R., that there were two distinct questions in that

case. The first question was whether the Royal Proclamation, 1763 applied to Nishga territory in British Columbia, thus entitling those people to its protection. The second question, if the Royal Proclamation, 1763 did not apply to Nishga terri- tory, was whether the Nishgas' Indian title was entitled to recognition by the Courts.

In Calder, in the British Columbia Court of Appeal, Chief Justice Davey, on the issue of aboriginal rights, agreed with Tysoe, J.A. The Chief Justice's view of the matter is expressed in the following paragraph, which I take from 13 D.L.R. (3d) at p. 67, 74 W.W.R. at pp. 483-4:

Under the authorities cited by my brother Tysoe, to which I add Tamaki v. Baker, [1901] A.C. 561, it is, I think clear, in the cir- cumstances of this case that the appellants must establish that by a prerogative or legislative Act, or by a course of dealing by the Crown from which a prerogative Act can be inferred, the Crown ensured to the Nishga Nation aboriginal rights in the lands in question, which might be asserted and enforced in the Courts of this Province. Unless that can be determined affirmatively, no declaratory judgment can be delivered that such rights have not been extinguished, because to say that they have not been extin- guished implies that they exist.

At the conclusion of the judgment Chief Justice Davey said at p. 69 D.L.R., p. 486 W.W.R.:

If I be wrong, and the Indians of British Columbia did acquire any aboriginal rights, I agree with my brother Tysoe that the histori- cal and legislative material which he has cited shows that they have been extinguished.

I turn to the judgment of Tysoe, J.A., in Calder. That learned Justice, after an exhaustive review of authorities, American, Canadian and British, and of the historical back- ground with particular reference to the sequence of relevant legislation in British Columbia, stated this short but plain conclusion at p. 98 D.L.R., p. 522 W.W.R.:

In my opinion the answer to the question "Has the aboriginal title, otherwise known as the Indian title, of the appellants to their ancient tribal territory been extinguished?" is "If it ever existed, it has been extinguished."

Mr. Justice Maclean in Calder came to the same conclusion as Mr. Justice Tysoe, likewise after a full review of authorities and of legislative history. I cite from that learned Justice's reasons at pp. 107-8 D.L.R., p. 533 W.W.R.:

The learned trial Judge has reviewed the pre-Confederation legis- lation of the Colony from 1858 till the Province entered Confedera- tion in 1871 and has held, and I think correctly, that [8 D.L.R. (3d) at p. 82, 71 W.W.R. at p. 108]:

"In result I find that, if there ever was such a thing as aborigi- nal or Indian title in, or any right analogous to such over, the delineated area, such has been lawfully extinguished in toto. It is not necessary to explore what 'aboriginal title, otherwise known as the Indian title' may mean, or in earlier times may have meant, in a different context. Lord Watson, for the Privy Council, in St. Catherine's Milling & Lumber Co. v. The Queen (1888), 14 App. Cas. 46 at p. 55, said:

"'There was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their Lordships do not consider it necessary to express any opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum domi- nium whenever the title was surrendered or otherwise ex- tinguished.' "

At p. 110 D.L.R., p. 535 W.W.R., Maclean, J.A., summed up in these words:

To put the matter another way -- if there ever was an "Indian title" it was extinguished by the pre-Confederation legislation of the Colony.

It is clear that if the law as enunciated by the Court of Appeal in Calder stands undisturbed, then even assuming an aboriginal Indian title for the Okanagan Indian people to the land in which Peachland Creek is situate, carrying with it the unrestricted right to fish in that creek, that right has been wholly extinguished. This takes me back to the judgment of Judson, J., in the Supreme Court of Canada in Calder. Mr. Justice Judson agreed that the Royal Proclamation, 1763 did not extend to British Columbia. That learned Justice then went on to state the problem in these terms in 34 D.L.R. (3d) at p. 156, [1973] 4 W.W.R. at p. 11:

Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the lands as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was "dependent on the good- will of the Sovereign".

It was the opinion of the British Columbia Courts that this right, if it ever existed, had been lawfully extinguished, that with two societies in competition for land -- the white settlers demanding orderly settlement and the Indians demanding to be let alone -- the proper authorities deliberately chose to set apart reserves for Indians in various parts of the territory and open up the rest for settlements.

They held that this had been done when British Columbia entered Confederation in 1871 and that the Terms of Union recognized this fact.

Mr. Justice Judson then went on to review the historical background and legislative background of Ordinances and Pro- clamations, concluding with the Ordinance of June 1, 1870. His Lordship then said at pp. 159-60 D.L.R., p. 15 W.W.R.:

The result of these Proclamations and Ordinances was stated by Gould, J., at the trial in the following terms [8 D.L.R. (3d) at p. 81]. I accept his statement, as did the Court of Appeal:

"The various pieces of legislation referred to above are con- nected, and in many instances contain references inter se, especially XIII. They extend back well prior to November 19, 1866, the date by which, as a certainty, the delineated lands were all within the boundaries of the Colony of British Columbia, and thus embraced in the land legislation of the Colony, where the words were appropriate. All thirteen reveal a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any conflicting interest, including one as to 'aboriginal title, otherwise known as the Indian title', to quote the statement of claim. The legislation prior to November 19, 1866, is included to show the intention of the successor and connected legislation after that date, which latter legislation certainly included the delineated lands."

Mr. Justice Judson continued with a further review of his- torical materials and legislation and went on to a considera- tion of American authorities. There is no useful purpose to be served in my attempting a summary of what was said by Mr. Justice Judson because in my view his conclusion is plain enough. One of the American cases considered was Tee-Hit- Ton Indians v. United States (1955), 348 U.S. 272, 76 S.Ct. 313, 99 L. Ed. 314. At p. 167 D.L.R., 23 W.W.R., Judson, J., cites the following passage from Tee-Hit-Ton, dealing with the nature of aboriginal Indian title, as follows:

"This is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians."

Mr. Justice Judson then, shortly and succinctly, in my respectful view put his conclusion in these words:

In my opinion, in the present case, the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation.

The decision of the Court of Appeal for British Columbia in

Calder stands, it has not been reversed. In short, and again using the words of Maclean, J.A., in 13 D.L.R. (3d) at p. 110, 74 W.W.R. at p. 535, the Court decided this:

. . . if there ever was an "Indian title" it was extinguished by the pre-Confederation legislation of the Colony.

I have reviewed Mr. Justice Judson's reasons at some length because it was suggested in argument by counsel for the appel- lant that Mr. Justice Judson was not wholly in agreement with the Court of Appeal. I can only say that having considered Mr. Justice Judson's reasons carefully I am respectfully of the opinion that that learned Judge, Justices Martland and Ritchie concurring, held, as the Court of Appeal did, that such rights of occupancy as the Nishgas enjoyed had been wholly extinguished.

There is no factor which distinguishes the Okanagan Indian people and the territory they occupied, encompassing Peach- land Creek, from the Nishga people and the Nishga tribal land. The Royal Proclamation, 1763 does not apply to Nishga land or to Okanagan land. It is common ground that, as with the Nishgas, there is no treaty affecting the Okanagan Indian people or their territory. It follows from Calder, assuming that the Okanagan Indians had aboriginal title to the land which includes Peachland Creek and, running with, or as a conse- quence of that title, had an unrestricted right to fish in Peach- land Creek, that that title and that right have been wholly extinguished. Thus it follows that the appellant, an Okanagan and a member of the Westbank Band, is subject to the Fish- eries Act and the British Columbia Fishery Regulations made thereunder, which are laws of general application in the Province of British Columbia. No protection is afforded the appellant by s. 88 of the Indian Act, supra.

I should add that I have not thought it necessary to refer to other authorities given me by counsel because, in my view, Calder is decisive.

For convenience I reproduce the first question posed by the stated case:

1. Was I correct in holding that Noll Derriksan as an Okanagan Indian has no aboriginal right to fish for food for his own use on ancient tribal territory, namely, at or near Peachland Creek, known to him as Deep Creek?

For the reasons which I have given I am of the opinion that the first question must be answered in the affirmative.

I have already answered the second question in the affirma- tive.

The third question reads as follows:

3. Was I correct in holding that it would only be if the Royal Proc- Iamation of 1763 were applicable to Okanagan Indians, that pursu- ant to the provisions of Section 88 of the Indian Act, the accused, Noll Derriksan could have lawfully done the acts complained of?

On considering the third question in conjunction with my affirmative answer to the second question I am of the opinion that for the purposes of the present appeal the third question does not require an answer. Because I have held that the Royal Proclamation, 1763 has no application to the Okanagan Indian people or the territory encompassing Peachland Creek, it is unnecessary to decide what the position would have been had the Proclamation been applicable.

The convictions must be affirmed and the appeal dismissed.

Appeal dismissed.