Supreme Court of Canada
In re British Columbia Fisheries, (1913) 47 S.C.R. 493
Date: 1913-02-18
In the Matter of the Powers of the Legislature of British Columbia to authorize the Government of that Province to Grant Exclusive rights to Fish.
1912: November 26, 27; 1913: February 18.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
REFERENCE BY THE GOVERNOR-GENERAL IN COUNCIL.
Sea-coast and inland fisheries—Canadian waters—Tidal waters— Navigable waters—Open sea—B.C. “Railway Belt”—Foreshores— Ferœ naturœ—Legislative jurisdiction—Construction of statute —47 V. c. 14, ss. 2-6 (B.C.).
In respect of waters within the “Railway Belt” of British Columbia which are tidal it is not competent to the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right of taking fish which, as ferœ naturœ, are the property of nobody until caught. The public right to take such fish being subject to the exclusive control of the Dominion Parliament it is immaterial whether the beds of tidal waters passed or did not pass to the Dominion in virtue of the transfer of the “Railway Belt.”
As to waters within the “Railway Belt” which although non-tidal are in fact navigable, the Legislature of British Columbia is likewise incompetent to make such grants.
It is not competent to the Legislature of British Columbia to authorize the Government of the province to grant, in the open sea within a marine league of the coast of that province, by way of lease, license or otherwise the exclusive right of taking such fish (ferœ naturœ).
In so far as concerns the authority of the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right to take such fish (ferœ naturœ), in tidal waters, there is no difference between the open sea within a marine league of the coast of the province and the gulfs, bays, channels, arms of the sea and estuaries of the rivers within the province or lying between the province and the United States of America.
Per Fitzpatrick C.J. and Davies, Idington, Duff and Brodeur JJ. (Anglin J. expressing no opinion on the point).—The beneficial ownership of the beds of navigable non-tidal waters within the “Railway Belt” in British Columbia, which were vested in the Crown, in the right of that province, at the time of the transfer of the “Railway Belt lands” to the Dominion of Canada, passed to the Dominion in virtue of the transfer.
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REFERENCE by the Governor-General in Council of questions for hearing and consideration as to the powers of the Legislature of British Columbia to authorize the Government of that province to grant exclusive rights to fish as therein mentioned.
The questions referred to the Supreme Court of Canada for hearing and consideration pursuant to the authority of section 60 of the “Supreme Court Act” are as follows:—
“1. Is it competent to the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right to fish in any or what part or parts of the waters within the “Railway Belt,”
(а) as to such waters as are tidal, and
(b) as to such waters as although not tidal are in fact navigable?
“2. Is it competent to the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right, or any right, to fish below low-water mark in or in any or what part or parts of the open sea within a marine league of the coast of the province?
“3. Is there any and what difference between the open sea within a marine league of the coast of British Columbia and the gulfs, bays, channels, arms of the sea and estuaries of the rivers within the province, or lying between the province and the United States of America, so far as concerns the authority of the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right, or any
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right, to fish below low-water mark in the said waters or any of them?”
At the hearing of the arguments presented in respect of the issues raised upon the reference:—
Hon. A. W. Atwater K.C. and Newcombe K.C. (Deputy-Minister of Justice), appeared for the Attorney-General for Canada.
Lafleur K.C. and H. A. Maclean K.C. for the Attorney-General for British Columbia.
Wallace Nesbitt K.C., Aimé Geoffrion K.C., E. Bayly K.C. and Chris. C. Robinson, for the Attorneys-General for Ontario, New Brunswick and Manitoba.
S. B. Woods K.C. for the Attorneys-General for Saskatchewan and Alberta.
The Chief Justice and Davies J. agreed with Duff J.
Idington J.—The respective jurisdictions of the Dominion and the province relative to the questions of fisheries and fishing rights were determined by the decision of the Judicial Committee of the Privy Council in the case of the Attorney-General for the Dominion of Canada v. The Attorney-General for Ontario et al.. The result of that decision was to leave the property therein as such (save possibly in the merest technical sense) in the province subject to and entirely dependent upon the legislative regulations and restrictions of the Dominion Parliament.
There can be no doubt that the right to fish in the sea and all its arms on the coast of British Columbia has been a public right enjoyable by everybody, and must so remain until the Dominion Parliament signifies
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otherwise, as, for example, by declaring that it will be for the good of the whole of Canada that a several or exclusive right of fishing may be granted.
There may be a question whether or not the province could grant an exclusive license anticipating and conditional upon and subject to the legislative regulations to be provided by Parliament. This would be practically of little use, even if technically it could fall within the terms of the judgment referred to.
After having given that possibly arguable right of the province the best consideration I can, it seems to me that it must be taken to be the will of Parliament that, until it has otherwise declared, the common law giving such rights as the public now possess is the regulation to be observed, and that is inconsistent with the grant of an exclusive license.
If the province should try to revoke this right of the people, it must do so through its legislature. Such legislation would be ultra vires and in any event if need be the veto power of the Dominion could prevent it.
What has been urged relative to the province having exclusive jurisdiction over “property and civil rights” as a ground for interference by the local legislature independently of Parliament, seems to me misplaced.
There is prima facie no more of property or civil right involved in the question than in the right to navigate these same waters. There may be civil rights arise out of the operation of navigating, but the right to navigate is held subject to regulation by Parliament. When there has been well and truly granted a license to fish in said waters, within and conformable with the legislative regulations adopted by Parliament,
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then there will arise a civil right in the licensee which will fall in all its incidents of assignment and succession within the power of the province over property and civil rights. This exercise of power granting such a civil right is the foundation of such incidental rights and is itself an exercise of the power the province has over property and civil rights. It may be also made so long as consistent with the Parliamentary regulations, subject to terms and conditions giving rise to other incidental civil rights.
The recognition of the power of the province over all these properties and civil rights so developed, furnishes no argument for limiting the exclusive legislative authority of Parliament given by section 91, subsection 12, of the “British North America Act,” over “Sea Coast and Inland Fisheries.”
If the contention of the province were to prevail it might result in one man or corporation acquiring the monopoly for all time over a food supply of fish which the rest of the people of Canada, as well as of British Columbia, have a right to enjoy. Such a result is properly admitted as a possible logical consequence of the contention set up, but is plausibly met by the argument that there is no power but may be abused.
But I cannot overlook the comprehensive language of the exclusive power given Parliament over “Sea Coast and Inland Fisheries” and coupled therewith the predominant feature of our whole scheme of confederation, which is that to those who are to be directly affected by the exercise of any power is entrusted the power of due and proper rectification of any misuse of such power.
This power of granting exclusive licenses to fish in the waters of British Columbia so touches the welfare
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of the whole people of Canada, not only in relation to their food, but also in the widest areas of national life, in so many and diverse ways, that a book might be written thereon. I think the people who may be affected by its operation must be declared virtual masters, through their Parliament, of the situation.
The illustration given by Lord Herschell as to Parliament having the right to prescribe the times of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose, has been pressed, not exactly as the limit, but as if expressive of the entire nature of its power. I do not think it is more than an illustration. I by no means read it as indicating the whole nature of the power. For I think the exclusive nature of the legislative power over the subject-matter named, is as wide as it possibly can be and relates to everything that Parliament may deem fit to deal with in regard thereto. The incidental property or civil rights in the province which may be found therein, of course, cannot be touched by Parliament. And I have no doubt once these limits of their respective powers are accurately apprehended, the trust, so timely expressed by Lord Herschell, that the good sense of the legislatures concerned will overcome any apparent inconvenience, will be realized.
Even if the right to fish in non-tidal but navigable waters may differ from those other rights, all seem so classed together by the “British North America Act” that I think the right of the province in either ease must be treated for all practical purposes as resting on the one common basis of the regulations of Parliament.
The nature of the property which the Dominion
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may have relative to the granting of licenses to fish in the waters within the “railway belt” is not directly raised by these questions submitted for determination herein. It can only be incidentally considered here relative to the questions put by way of an answer to the claim of the province. In the view just expressed it seems hardly necessary to consider it. There is, however, not the same clear common law right of the public to fish in these non-tidal navigable waters as in the others in question herein. Hence, notwithstanding the opinion I have just expressed, I see there may be another point of view worthy of notice. The “Settlement Act,” chapter 14 of the British Columbia Statutes of 1884, seems to transfer such a title in the soil as to preclude the province from granting any license to fish in non-tidal navigable waters existent on lands covered by said grant.
There is, in my opinion, no foundation in law for the claim that fish therein ever were jura regalia such as the precious metals. I would, therefore, answer each of the questions in the negative.
I understand from counsel that though taking the form of “Reference under the ‘Supreme Court Act,’“ this submission is in fact pursuant to the consent of the Province of British Columbia and the Dominion as a means of determining their respective rights in the premises.
It is conceivable that British Columbia before the Union or after that event, and before the later “Settlement Act” I have referred to, may have made grants inconsistent with the operative effect to be given the respective results of the legislation dealt with in accordance with what I have said. In either such case the Act of Union or later Act cannot interfere.
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Duff J—It will be convenient first to consider question 2.
The colony of British Columbia was established in 1858. By an ordinance promulgated by Governor Douglas, on the 19th of November of that year, the laws of England, criminal and civil, as they existed on that date were declared to be in force in the colony “so far as the same are not from local circumstances inapplicable,” and by an ordinance, promulgated in 1867, after the union of the old colony of British Columbia with Vancouver Island, the ordinance of 1858 was made applicable to the whole of the new colony of British Columbia thereby constituted.
It is not suggested that from the first establishment of the colony of British Columbia down to the time when the United Colony entered the Canadian Union any enactment was passed by any law-making authority affecting the public rights of fishing in tidal waters in any way material to the present question. At the date of the Union the law governing these rights may be taken for our present purpose to have been the law of England “so far as the same was not from local circumstances inapplicable.”
The soil, of navigable, tidal rivers,’ like the Shannon, so far as the tide flows and reflows, is primâ facie in the Crown, and the right of fishery primâ facie in the public. But for Magna Charta, the Crown could, by its prerogative, exclude the public from such primâ facie right and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by Act of the Crown not later than the reign of Henry II.
This statement of the law, contained in the opinion of the judges given by Mr. Justice Willes, in 1863, in response to a question put by the House of Lords in
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Malcomson v. O’Dea, at page 618, was expressly approved by the House, and is, of course, a final pronouncement as to the state of the law in England respecting public rights of fishing in tidal wa;ters on the 19th November, 1858. I can think of no good reason why the rule enunciated in this passage should be supposed to be inapplicable to the circumstances of British Columbia, and I think it must be held to have been in force throughout British Columbia in 1871, when the provisions of the “British North America Act” became applicable to the province. That statute vested in the Dominion Parliament the exclusive authority to make laws relating to the “Sea Coast and Inland Fisheries,” and in Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, at page 716, one consequence of this was held by the Privy Council to be that
all restrictions or limitations by which public rights of fishing are sought to be limited or controlled can be the subject of Dominion legislation only.
It follows that question 2 in so far as it refers to a supposed exclusive right to be created by the province in tidal waters ought to be answered in the negative.
The question as framed goes further; but no suggestion was made in the argument as to the character of any possible non-exclusive rights of fishing grantable by the province in tidal waters and, as I do not understand what point is intended to be raised by the reference to such possible rights, I must ask to be permitted to treat the question as confined to exclusive rights.
I may further add that I have treated the question as relating only to rights of fishing as commonly
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understood, that is to say, rights to take fish (not being royal fish as to which our opinion is not desired) that as ferœ naturœ are, where the fishery is public, the property of nobody until caught.
Treating question 3 as also confined to exclusive rights of fishing in the sense already indicated that question must for the same reasons be answered in the negative. It is not necessary to consider the very important question whether the bed of the open sea within the three-mile limit is or is not vested in the Crown in right of the province.
For the same reason also the first branch of the first question must be answered in the negative. The public right being subject to the exclusive control of the Dominion Parliament it is immaterial whether the beds of tidal waters passed or did not pass to the Dominion under the transfer of the “Railway Belt.”
The second branch of the first question raises a different point. I think it should be answered in the negative for these reasons.
1st. The beds of non-tidal, navigable waters within the “Railway Belt,” in my opinion, passed to the Dominion by the transfer effected by the “Settlement Act.” In that Act, 47 Vict. ch. 14, sec. 2, the lands transferred are thus described:—
The public lands along the line of railway * * * to a width of 20 miles on each side of the line.
It is argued that the beds of non-tidal navigable waters within the boundaries indicated by this language did not pass to the Dominion for two reasons:—
(a) It is said that the rights of the Crown to such beds, at the date of the Union with Canada as well as the date of the “Settlement Act,” rested upon prerogative title; and that according to the judgment of
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the Privy Council delivered by Lord Watson in the Precious Metals Case the term “public lands” in the description above quoted must be taken not to comprise any land held under such title. It cannot be doubted that expressions can be quoted from the judgment of Lord Watson, which taken by themselves might appear to lend some support to this view of that decision. At page 303, for example, he says:—
It, therefore, appears to their Lordships that a conveyance by the province of public lands which is in substance an assignment of its right to appropriate the territorial revenues arising from such lands does not imply any transfer of its interest in revenues arising from the prerogative rights of the Crown.
It is unnecesary to decide whether passages such as this justify the construction the province seeks to place upon the judgment as a whole; for it is clear, I think, that the beds of non-tidal waters whether navigable or not, do not, according to the law of British Columbia, belong to the Crown jure prerogativœ. That such is the law of England is indisputable. Bristow v. Cormican, and Johnston v. O’Neill, at page 557. Mr. Lafleur referred to certain expressions in books of authority which designate non-tidal rivers subject to a common right of passage as “royal rivers” and sought to draw the inference that the beds of such rivers are held under prerogative title. The significance of such expressions is fully explained by Lord Hale in the second chapter of “De Jure Maris” (Moore, Foreshore, p. 374). They signify nothing more than the expression “King’s Highway” as applied to a highway on land. See also the judgment of Bowen L.J., in Blount v. Layard.
It seems to be argued, however, that, in this matter
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of the nature of the title by which the beds of such waters are held, the law of England is from local circumstances inapplicable to British Columbia and that in that province the beds of navigable non-tidal waters are (like the beds of tidal waters) the property of the Crown in right of prerogative.
I cannot understand why it should be supposed to be more in consonance with the circumstances of British Columbia that the beds of non-tidal navigable waters vested in the Crown should be deemed to be held under prerogative title than that such beds should be held under the same title as the Crown lands in the province generally. In the argument counsel dwelt upon the great size of the lakes and rivers. The rivers of Vancouver Island are diminutive when compared with the Shannon, and there is certainly no lake as large as Lough Neagh. On the mainland there are lakes perhaps twice as large as Lough Neagh and rivers, much longer than the Shannon; but what conceivable inconvenience could the community suffer by reason of the beds of those waters being held by the Crown under the same title as other Crown lands? From the very beginning full authority to deal with Crown lands of every description was vested in the local legislative authority. The first local law-making authority was that conferred upon Governor Douglas, who was appointed on the 2nd September, 1858, and, under the authority of an order-in-council passed pursuant to 22 Vict. ch. 49, was invested with power to make laws for the “peace, order and good government” of the colony; and it was in exercise of this power that the ordinance of 19th November, 1858, already referred to, providing for the introduction of the law of England was passed. All Crown lands and mines in
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the colony whether held under prerogative title or not came under the legislative jurisdiction of the Governor and from that time forward they became the subject of legislative provision as occasion arose.
One is at a loss to surmise what possible practical importance could attach to the point whether beds of non-tidal waters which were the property of the Crown and were subject to the local legislative authority were to be regarded in the eye of the law as held according to one description of title or according to another. I do not think there is any ground for holding that in this matter the rule of the common law did not come into force simpliciter.
(b) The other ground upon which the province contends that these beds did not pass to the Dominion is this. It is said that in British Columbia the Crown’s title to the beds of non-tidal waters which are capable of navigation in fact are, like its title to the beds of tidal waters, burdened with a public easement of navigation; and it is said to be a rule of construction applicable to grants by the Crown to a subject that lands held by a title burdened with such a public servitude do not pass except by express words or by necessary implication. This rule of construction, it is argued, ought to be applied to the “Settlement Act.” The object of the transfer being, it is contended, to enable the Dominion to recoup the cost of construction of the railway, by selling the land to settlers, a presumption arises, it is said, that only such rights were intended to pass to the Dominion as in the ordinary course would be granted to settlers. It does not appear to me to be necessary for the purpose of dealing with this argument to express any opinion upon the very important question of how far
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and upon what principle public rights of navigation are recognized by the law of British Columbia as existing in non-tidal waters capable of being navigated. Certain rivers and lakes in that province, which from the first settlement of it have been used as public highways are, one cannot doubt, subject to a public easement of passage. Such rights can in the case of such waters be maintained upon grounds which involve no straining of the principles of English law.
There are, on the other hand, lakes and streams capable, no doubt, of navigation whose economic value for the community is primarily due to their availability or potential availability for purposes of irrigation, of mining and of industry generally. From the first settlement of the country the necessity of making provision for the application of the waters of lakes and streams to these purposes was recognized; and a system of “water records” which, while not entirely displacing riparian rights, recognizes the paramount right of the province to control the use of such waters, and under which riparian owners and others may, upon application to the public authorities, acquire the right to divert such waters from their natural beds for such purposes has for years been a settled feature of the law of the province and has always been regarded as essential in the interests of provincial industry. On the other hand these waters are often so situated that while they are capable of navigation, in fact, the practical interest of the community in them as possible ways for public travel or transport could only be infinitesimal.
It is not necessary, I repeat, in my view of the question before us to say whether the law of England was so modified on its introduction into British Columbia
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as to give rise to a public right of navigation over every such inland navigable water. Nor do I think it necessary to decide how far the rules of English law relating to the rights of riparian proprietors in respect of the beds of such waters are applicable to British Columbia, nor whether by the law of that province there is any rule of construction applicable to grants from the Crown according to which the beds of non-tidal navigable waters only pass by express words or by necessary implication. Assuming such rights of navigation to exist in all such waters, and assuming the rule of construction in the case of a grant to a subject to be that which is contended for, still it seems to me that the conclusion which the province asks us to draw cannot be supported.
The area transferred by the “Settlement Act” is an area about 500 miles long and 40 miles wide. It stretches from the eastern boundary of the province to the Gulf of Georgia, and is very varied in its physical character. At the time of the “Settlement Act” it included a good deal of timber land and a good deal of land known to be fit for agriculture. The waters navigable and non-navigable within the area must have been regarded by everybody who thought about the matter as likely to prove a most important factor in connection with the settlement and development of it. Why should anybody be supposed to have contemplated that as between the Dominion and the province the control of the water system should be divorced from the ownership of the “Belt” as a whole? As regards non-navigable waters nobody suggests such a thing. As regards waters navigable in fact, assuming they were subject, as is argued, to public rights of navigation and fishing, then it
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must be remembered that this area was to be dealt with by public officials under the control of the Dominion Parliament and that the Dominion Parliament is the supreme conservancy authority in respect of navigation and fishing. Whatever considerations might be urged in the case of a grant by the Crown to a subject in support of a presumed intention to exclude the beds of navigable waters because of the existence of such public rights I can think of no reason why such a presumption should be applied to this transfer. Moreover, it could hardly have escaped the notice of both parties that the retention by the province of the beds of non-tidal navigable as distinguished from non-navigable waters was bound to lead in numberless cases to much uncertainty of title, and for that reason alone I think we may assume that such retention was not contemplated.
2nd. The beds of the waters in question having passed to the Dominion the right of fishing would pass also as a profit of the soil, unless according to the law of British Columbia the right of fishing in non-tidal, navigable waters is not a profit of the soil; and having passed to the Dominion that right could not be granted away again by the province.
I am not sure that I have grasped the argument of the province at this point, but whether the right of fishing in these waters is or is not vested in the Dominion as a profit of the soil it seems to me to be impossible to answer this question in the affirmative.
It cannot be argued, and I do not suppose counsel intended to argue, that (the beds at the time of the transfer being vested in the Crown in proprietary right) the right of fishing was held by the Crown in right of prerogative. The argument addressed to us
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was that in these waters there is a public right or privilege of fishing over which in some way the province is entitled to exercise control. I do not think it is necessary to decide whether the law of British Columbia at the date of the Union recognized any public right of fishing in these waters. There can be no doubt that the law of England recognizes no necessary connection between the public right of navigation and the public right of fishing; and, indeed, the great weight of authority is in favour of the view that a right of the character last mentioned cannot exist in non-tidal waters under the common law. Whether on its introduction into British Columbia the law of England underwent such a modification as to require us to hold that in every body of water in that province which is capable of navigation (the bed of which is vested in the Crown) a right or privilege of fishing belongs to the public and if there be such a right or privilege in non-tidal waters what is the nature of it are questions involving points of far-reaching importance which ought only to be passed upon after hearing argument in the interest of those private owners who might be affected by the decision and who were not represented on the hearing of this reference. It is unnecessary, as I have said, to pass upon those questions. Such a public right or privilege if it exist in non-tidal waters may be either (a) an absolute right, only capable of limitation or restriction by legislative authority, such as the public right of fishing in tidal waters or (b) a privilege in the nature of a mere tacit license revocable at the will of the Crown or the Crown’s grantee as owner. Strong C.J., in his opinion in the Fisheries Case, at pages
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526, 527, 528, and 531, expresses the view that there is a public privilege in such waters and appears to think it is of the last-mentioned character. Such a privilege would, of course, leave untouched the Crown’s proprietorship of the fishery as incidental to the ownership of the solum. As regards the waters in question this proprietorship would pass to the Dominion by the transfer and with it the power of revocation theretofore vested in the province as owner. If, on the other hand, there is a public right of fishing of the first mentioned character it is, as we have seen, subject to the exclusive control of the Dominion Parliament.
This question then should be answered in the negative because the beneficial ownership of the beds of navigable non-tidal waters within the “Railway Belt” that were vested in the Crown at the date of the transfer passed to the Dominion; and with the ownership of the beds the fisheries passed also as ordinary profits of the soil unless at the date of the union the title of the Crown was burdened with a public right of fishing that was only capable of being restricted or limited through the exercise of legislative authority. If such a public right did exist in respect of the fishings in the waters in question then by the operation of the “British North America Act” as construed in the Fisheries Case, the Dominion Parliament became solely invested with legislative authority to limit or restrict that right.
Anglin J.—I concur in the reasons assigned by my brother Duff for answering in the negative the second and third questions, restricted as indicated by him,
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and that part of the first question which relates to tidal waters. But I prefer to state in my own way the grounds on which I base a negative answer to the second branch of the first question which concerns waters navigable in fact but not tidal.
It was much debated at bar whether under the provincial statutory grant the Dominion Government did or did not acquire proprietary rights in the beds of these waters. While I adhere to the view which I expressed in Keewatin Power Co. v. Town of Kenora, as to the inapplicability to the great stretches of fresh water in this country, which are navigable in fact, of the rule of the English common law, which treats as navigable only such waters as are tidal, in the view that I take it is not necessary here to determine that important point.
If the English common law test of navigability applies in British Columbia without any modification, all non-tidal waters must be deemed non-navigable in law, and a grant similar in its terms to that before us, if made by letters patent to a private person, would carry the subjacent soil of such waters whether in fact navigable or non-navigable. The statutory grant to the Dominion will not receive a narrower construction. In this view the province has by its grant parted with the proprietary interest upon which its right to* grant fishing leases or licenses must be rested. It has transferred that proprietary interest to the Dominion; and whatever jurisdiction the legislature of British Columbia may possess enabling it to derogate from provincial Crown grants to private persons, it has no legislative power to derogate from the effect of its statutory grant to the Dominion of the “Rail-
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way Belt” lands, which, as public lands, are under the exclusive legislative authority of the Dominion Parliament until disposed of to settlers. Burrard Power Co., Ltd. v. The King.
On the other hand if, in British Columbia, waters in fact navigable though non-tidal should be deemed navigable in law, and publici juris in the same sense as tidal waters, there would, in my opinion, exist in them the same public right of piscary which exists in tidal waters; and the provincial legislature is not competent to authorize any grant which would interfere with the fullest exercise of that public right. It follows that in either view the legislature of British Columbia cannot authorize grants of exclusive rights to fish in these waters.
I cannot accept the contention pressed on behalf of British Columbia that the interest of a province in the ordinary fisheries in provincial waters which should be deemed navigable in law is a jus regale of the same nature as its right to the precious metals which were held not to be partes soli, and were on that account excluded from the operation of the grant of the “Railway Belt Lands”.
A public fishery will not pass by a Crown grant of the solum of the water in which it exists, or indeed of the fishery itself in express terms, not because such a fishery is not pars soli, but because the solum itself, vested by law in the Crown, is subject to a trust to preserve the public rights of navigation and of fishing, which the competent legislature alone can extinguish. But the precious metals do pass under a Crown grant
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which contains language apt to convey them. Legislative action is not requisite.
On the other hand any fishery vested in the Crown in waters of which it owns the solum, other than a public common of piscary existing by law, with which a province is not competent to interfere, is held not by prerogative, but by proprietary title. Mayor of Carlisle v. Graham, at pages 367-8; Duke of Devonshire v. Pattinson, per Fry L.J., at page 271.
Brodeur J. agreed with Duff J.
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