Jack et al. v. The Queen, [1980] 1 SCR 294

Supreme Court of Canada

Jack et al. v. The Queen, [1980] 1 S.C.R. 294

Date: 1979-07-18

Joseph Daniel Jack, Harold Lewis Joe, Calvin Patrick Antoine, John Jimmy, Bernard Joe, Gordon Leon Goldsmith, Samuel Johnny Jimmy and Wilburt Joseph Canute Appellants;

and

Her Majesty The Queen Respondent.

1979: May 1; 1979: July 18.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Indians—Fishing for salmon during prohibited period—Food fishing—Claimed fishing rights not established—Fishing rights, even if established, would be subordinated to conservation of fisheries—Fisheries Act, R.S.C. 1970, c. F-14, s. 19—British North America Act, 1867, ss. 91(12), 146—Terms of Union of British Columbia and Canada, 1871, art. 13—Status of appellants to invoke art. 13.

The appellants are Indians within the coverage of the Indian Act, R.S.C. 1970, c. I-6. They were convicted of fishing for salmon in certain rivers during a prohibited period in violation of s. 19 of the Fisheries Act, R.S.C. 1970, c. F-14, as amended. The prohibition was effected by an order under Reg. 4 of the federal British Columbia Fishing Regulations. The appellants were caught either fishing or in possession of fish which they had caught. It was admitted that they were fishing for food. They did not have a permit pursuant to s. 32(1) of the Fishing Regulations.

The defence to the charges was based solely on the alleged constitutional incapacity of the Parliament of Canada to embrace the appellants and others of their band in its fisheries legislation so as to deny them the right to continue to fish for food. It was contended that there had been a policy to that effect in British Columbia prior to its admission in 1871 as a Province of Canada and that art. 13 of the Terms of Union sanctified this policy so as to create a limitation on federal legislative power in relation to sea coast and inland fisheries under s. 91(12) of the British North America Act. The Terms of Union were approved by an Imperial

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Order in Council in conformity with s. 146 of the British North America Act and, in accordance with that provision, it had effect as if enacted by the Imperial Parliament. In short, it had constitutional status.

The first paragraph of art. 13 imposed two obligations on the Dominion Government: (i) to assume the charge of the Indians and the trusteeship and management of the lands reserved for the use and benefit of the Indians, and, (ii) to continue, after the union, a policy as liberal as that pursued by the British Columbia Government prior to the Union. The second paragraph imposed an obligation upon the Local Government to convey to the Dominion Government, for the carrying out of the policy referred to in the first paragraph, tracts of land of such extent as had been the practice of the British Columbia Government to appropriate for the purpose prior to the Union.

An appeal by way of stated case from the convictions of the accused was dismissed by the Court of Appeal, whereupon the accused, with leave, appealed to this Court.

Held: The appeal should be dismissed.

Per Laskin C.J. and Martland, Ritchie, Pigeon, Beetz, Estey, Pratte and Mclntyre JJ.: The view of the Court of Appeal that the appellants did not have status to invoke the Terms of Union so as to claim exemption from federal fisheries legislation is not accepted. It is open to any litigant to defend a charge on the ground that it is based on incompetent or inapplicable legislation. There was an alleged constitutional basis for the defence in this case and the appellants were entitled to invoke it.

Nothing in art. 13 could possibly operate as an inhibition on federal legislative power in relation to fisheries. Whatever policy may have existed in pre-Confederation British Columbia of toleration of Indians fishing for food in rivers or other waters of Vancouver Island and of British Columbia before and after that Island became part of the colony, there does not appear to have been any basis in law to ordain the policy. Nor could any legal sanction for such Indian fishing rights be spelled out of art. 13. The claim of fishing rights made here could not be found either in the words “The charge of the Indians” under art. 13, nor in the following words of that article.

It was conceded that the prohibitory order, if made for conservation purposes, would govern any Indian fishing rights. On the facts, there was a conservation

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purpose to be served by the prohibitory order. Hence, even if the fishing rights claimed were established, they would have been properly subordinated to conservation of the fisheries in the particular rivers.

Per Dickson J.: Section 146 of the British North Amercia Act clearly renders the Terms of Union something other than “an inter-governmental agreement” and the appellants are entitled to invoke art. 13 of those Terms as a defence to the charge. As a matter of statutory interpretation and historical evidence, the reference to “policy” in art. 13 extends beyond the narrower question of reserve lands dealt with in the second paragraph. Indian fishing fell within the pre-Confederation policy of British Columbia and was within the “policy” referred to in the first paragraph of art. 13. It was plain that Indian fishermen were encouraged to engage in their occupation and. to do so both for food and barter purposes.

Article 13 called for distinct protection of the Indian fishery, in that pre-Confederation policy gave the Indians a priority in the fishery. That priority is at its strongest when one speaks of Indian fishing for food purposes, but somewhat weaker when one comes to local commercial purposes. If there are to be limitations upon the taking of salmon here, then those limitations must not bear more heavily upon the Indian fishery than the other forms of the fishery, i.e. commercial and sport fisheries. With respect to whatever salmon are to be caught, then priority ought to be given to the Indian fisherman, subject to the practical difficulties occasioned by international waters and the movement of the fish themselves. But any limitation upon Indian fishing that is established for a valid conservation purpose overrides the protection afforded the Indian fishery by art. 13, just as such conservation measures override other taking of fish.

A below average run of salmon and a record or near-record low precipitation led the Fisheries officials to issue an order closing a portion of Cowichan Bay to sports fishing and, subsequently, an order of closure of the Cowichan River to all fishing. In the circumstances, it was difficult to perceive how conservation could have been assured by any other method which could have given the necessary priority to the Indian river fishery.

By reason of the constitutional nature of art. 13, the contention that the steps taken by the Fisheries officials here were immune from review by the Courts was

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untenable. A mere order of closure by a Fisheries officer in British Columbia under s. 4 of the Regulations may be a clear indication of a conservation purpose, but it is not conclusive on the question of protection of Indian fishing. Considerable latitude should be given to the judgment of the Fisheries officials in deciding the questions of when closure is required for conservation purposes and how that closure is to be effected. That does not, however, completely shield those measures from judicial review for constitutional competence.

If there is a challenge, then the questions on review will be whether the steps taken by the Fisheries authorities were reasonable and necessary for the purposes of conservation, and whether efforts were made to assure priority to the Indian fishery, within the practical limits of modern fisheries management. In this case, the Fisheries officials had shown that the closure of the river fishery was reasonable and necessary for the purpose of conservation and did not offend against the priority assured to the Indian fishery by reason of art. 13 of the Terms of Union.

APPEAL from a judgment of the Court of Appeal for British Columbia dismissing an appeal by way of stated case from an order of Heard P.C.J. Appeal dismissed.

Douglas Sanders, for the appellants.

Ralph Hutchinson and Paul Pearlman, for the respondent.

The judgment of Laskin C.J. and Martland, Ritchie, Pigeon, Beetz, Estey, Pratte and Mclntyre JJ. was delivered by

THE CHIEF JUSTICE—The eight appellants are Indians within the coverage of the Indian Act, R.S.C. 1970, c. I-6. They were convicted of fishing for salmon in certain rivers during a prohibited period in violation of s. 19 of the Fisheries Act, R.S.C. 1970, c. F-14, as amended. The prohibition was effected by an order under Regulation 4 of the federal British Columbia Fishing Regulations. The appellants were caught either fishing or in possession of fish which they had caught. It is admitted that they were fishing for food. They did not have

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a licence pursuant to s. 32(1) of the Fishing Regulations.

The appellants do not rely on any aboriginal title or on any aboriginal rights nor on any treaty rights, there being no applicable treaties. The defence to the charges was based solely on the alleged constitutional incapacity of the Parliament of Canada to embrace the appellants and others of their band in its fisheries legislation so as to deny them the right to continue to fish for food. It was contended that there had been a policy to that effect in British Columbia prior to its admission in 1871 as a Province of Canada and that art. 13 of the Terms of Union sanctified this policy so as to create a limitation on federal legislative power in relation to sea coast and inland fisheries under s. 91(12) of the British North America Act. The Terms of Union were approved by an Imperial Order in Council in conformity with s. 146 of the British North America Act and, in accordance with that provision, it had effect as if enacted by the Imperial Parliament. In short, it had constitutional status.

Article 13 reads as follows:

13. The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union.

To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies.

It was contended by the appellants that this article is concerned with transferring legislative jurisdic-

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tion to Parliament in relation to Indians and lands to be reserved for Indians, a parallel provision to s. 91(24) of the British North America Act. Even if this be so—and it is not an issue that arises here—I see nothing in art. 13 that could possibly operate as an inhibition on federal legislative power in relation to fisheries. Whatever policy may have existed in pre‑Confederation British Columbia of toleration of Indians fishing for food in rivers or other waters of Vancouver Island and British Columbia before and after that Island became part of the colony, there does not appear to have been any basis in law to ordain the policy. Nor can any legal sanction for such Indian fishing rights be spelled out of art. 13.

Counsel for the appellants insisted on treating the two paragraphs of art. 13 as separate and contended that the “policy” on which he relied, relating particularly to the words “The charge of Indians” was dissociated from the following paragraph referring to “such policy”. I know of no principle of construction to support this view of what to me is a connected article. In my opinion, therefore, the claim of fishing rights made here cannot be found either in the words “The charge of Indians” under art. 13, nor in the following words of that article. The evidence presented to support the alleged rights rises no higher than expediency to leave the Indians to unregulated fishing in the particular rivers or elsewhere. Indeed, the argument must go to the extent of finding in the words of art. 13 various aspects of Indian policy and, it is conceded that there is no evidence that the policy later followed was not a balanced one.

I wish to refer to one other point. The British Columbia Court of Appeal, in dismissing the appeals from conviction, did so on the narrow ground that the appellants had no status to invoke the Terms of Union so as to claim exemption from federal fisheries legislation. I do not agree with this view. It is open to any litigant to defend a charge on the ground that it is based on incompetent or inapplicable legislation. There is an alleged constitutional basis for the defence in this case, as previously noted, and the appellants were entitled

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to invoke it. I do not think that this is a case, as was urged by counsel for the intervenant Attorney-General of British Columbia, where the appellants are seeking to assert rights under an inter-governmental agreement to which they were not parties.

I should add that in view of my conclusion on art. 13, it is unnecessary to say anything about the conversation point raised by the respondent. However, counsel for the appellant conceded that the prohibitory order, if made for conservation purposes, would govern any Indian fishing rights. I am inclined to the view that, on the facts, there was a conservation purpose to be served by the prohibitory order. Hence, even if the fishing rights claimed were established, they would have been properly subordinated to conservation of the fisheries in the particular rivers.

On the merits, I would dismiss the appeal.

The following are the reasons delivered by

DICKSON J.—The broad question raised in this appeal is whether art. 13 of the Terms of Union of British Columbia and Canada, 1871, affords any form of protection for Indian fishing. If this question is answered in the affirmative, then it remains to determine whether the article gives legal protection to the fishing activities of the appellants in the present case. Several of the accused were charged with unlawfully fishing for salmon at a time and place where fishing for salmon was prohibited by law. The other accused were charged with unlawful possession of salmon at a time and a place where fishing for such fish was prohibited by law. The “time” was September and October, 1974. The “place” was at Cowichan River on Vancouver Island in British Columbia. The accused are Indians within the meaning of the Indian Act, and are registered members of the Cowichan Indian Band. Between September 22, 1974, and November 17, 1974, the Cowichan River was closed to all salmon fishing by an order made by a fishery officer, acting pursuant to Regulation 4 of the British Columbia Fishing Regulations passed under the authority of the Fisheries Act, R.S.C. 1970, c.

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F-14, and amendments thereto. None of the accused had any permit issued under s. 32(1) of the Fishing Regulations. It is admitted that at the time of the alleged offences, those accused charged with fishing were food fishing, while those charged with possession of salmon were in possession of salmon that had been taken while food fishing. The accused were convicted before Heard P.C.J., and an appeal by way of stated case was dismissed by the British Columbia Court of Appeal.

Let me say immediately, and with respect, that I do not agree with the Court of Appeal that the appellants have no status to enforce art. 13 or to call it in aid. Status was denied because the appellants’ forbears were not, and the appellants are not, parties to the agreements between the Dominion of Canada and the Colony of British Columbia that were embodied in the Terms of Union. Section 146 of the British North America Act, 1867 clearly provides that “the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom for Great Britain and Ireland”. The Terms of Union were approved by an Imperial Order in Council thereby giving constitutional effect as if enacted by the Imperial Parliament. The Terms may therefore establish constitutional limitations upon the exercise of federal or provincial legislative power. Section 146 clearly renders the Terms of Union something other than “an inter-governmental agreement” and the appellants are entitled to invoke art. 13 of those Terms as a defence to the charge.

Article 13 of the Terms of Union of British Columbia and Canada, 1871, provides:

The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union.

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To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies.

The first paragraph imposes two obligations: (i) to assume the charge of the Indians and the trusteeship and management of the lands reserved for the use and benefit of the Indians, and, (ii) to continue, after the Union, a policy as liberal as that pursued by the British Columbia government prior to the Union. The second paragraph imposes an obligation upon the local government to convey to the Dominion government, for the carrying out of the policy referred to in the first paragraph, tracts of land of such extent as had been the practice of the British Columbia government to appropriate for the purpose prior to the Union. The word “policy” in the first paragraph refers, in my view, to a broad general policy as affecting Indians and lands reserved for their use. The word “policy” in the second paragraph refers to that same policy, and the implementation thereof, in so far as it affects lands. There is clearly nothing in the language of art. 13 to suggest that “policy” in the first paragraph refers only to the land to be set aside for Indian reserves. If anything, the structure of the article indicates the opposite. I am further of the view that if the article can be said to be ambiguous, it should be so interpreted as to assure the Indians, rather than to deny to them, any liberality which the policy of the British Columbia government may have evinced prior to Union.

Exhibit 14 in this case is entitled “Report of the Government of British Columbia on the subject of Indian Reserves”, a report by the Honourable George A. Walkem, then Attorney General of B.C., dated August 17, 1875. According to the British Columbia Sessional Papers of 1876—in which the Report is found—the Report was approved by the Executive Council and by the Lieutenant-Governor to this effect:

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The Committee of Council concur with the statements and recommendations contained in the Memorandum of the Honourable the Attorney-General, on the subject of Indian Affairs, dated 17th August, 1875, and advise that it be adopted as the expression of the views of this Government as to the best method of bringing about a settlement of the Indian Land Question.

The Attorney General read art. 13 as containing “four distinct terms”:

1st.—That Canada assumed the charge of the Indians and the trusteeship and management of their lands;

2nd.—That a policy towards our Natives as liberal as that of the Colonial Government of British Columbia (prior to Confederation) should be continued by the Dominion Government;

3rd.—That this Province should, after Confederation, convey to the Dominion, in trust for the use of the Indians, tracts of land similar in extent to those which had been set apart for their use by British Columbia when governed directly by the Imperial Authorities;

4th.—That any disagreement with respect to the extent of such lands should be referred to the Secretary of State for the Colonies for his decision.

What is interesting for our purposes is the subsequent characterization of the import of “policy” by Walkem:

Upon these four distinct terms the 13th Article is based. It need scarcely be stated that there is a marked difference between a stipulation to establish a general policy and an agreement to supply certain detailed assistance “to carry out such policy.”…

The value of the above distinction will presently appear in discussing the several points in the order laid down. Although the question of What assistance in land shall British Columbia now give to enable the Dominion to carry out her Indian policy? is the real issue between the two Governments, it appears to be absolutely necessary to give a short sketch of the Indian policy of the Crown Colony, with a view to removing the very unjust impressions respecting it which have been created in the public mind by the publication of the Report of the Minister of the Interior…

The policy of the Dominion aims at a concentration of the Indians upon Reserves, while that of the Crown Colony, besides granting Reserves in cases where the Indians preferred them, courted rather an opposite result… (emphasis added)

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The Attorney General then describes at some considerable length the assimilationist policy of the old Crown Colony, prior to entering upon the reserve issue.

It is apparent that art. 13 is akin the head 24 of s. 91 of the British North America Act in transferring to Parliament legislative jurisdiction in relation to Indians and lands reserved for their use. But that function is performed by the first of the “four distinct terms”. One cannot simply skip over the next term to the two terms in the second paragraph, those dealing with the reserve lands aspect of Indian policy. The second paragraph is clearly subordinate to the first paragraph in its transfer of jurisdiction and statement of a general standard for federal Indian policy in British Columbia. As noted earlier, there is a similar standard of “practice” of the Crown Colony to be applied to the conveyance of tracts of land for reserves.

As a simple matter of statutory interpretation, the reference to “policy” in the first paragraph in art. 13 refers back to the first term of the article, to “The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit”, and not merely to the “tracts of land” to be set aside for reserves. That view is only reinforced by Walkem’s report to the Executive Council of British Columbia. I conclude, therefore, as a matter of statutory interpretation and historical evidence, that the reference to “policy” in art. 13 extends beyond the narrower question of reserve lands dealt with in the second paragraph.

The next issue to be considered is whether Indian fishing can properly be regarded as within the “policy” to which reference is made in the first paragraph of art. 13 and, if so, what content can be given to the pre-Confederation policy of the Colony. It is not correct to advert to the post-Confederation Indian policy in order to determine the content of “policy” for our purposes. In this appeal we are concerned with the application of the minimum standard of pre‑Confederation policy to the federal government after Confederation. As

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the appellants state in their factum—and there is much historical evidence to support them—“Given the limited and ungenerous policies of British Columbia prior to Confederation, this standard will only rarely be able to be invoked against the federal government. It may be that it cannot be invoked in any area but that of fisheries.”

At trial, Heard P.C.J. found that there was a policy in the Colony relating to Indian fishing and described it in these terms:

Prior to 1871, the policy was that of non-interference with Indian fishing rights (if indeed they had rights). In such treaties as were made with other Indians, they were to be allowed to hunt over unoccupied lands and carry on their fisheries as formerly. This evidently was the policy prior to Union in 1871 in the Colony of British Columbia and any part that is now the Province of British Columbia.

Judge Heard elaborated the rationale underlying the policy of non-interference:

While the policy in force in the period under consideration was that of not regulating Indian fisheries, it appears that this policy was predicated on the assumption the fishery resource was inexhaustible and that fish being a staple of the Indian diet, it was better to allow them unlimited fishing in order to prevent any hostilities as the land was gradually occupied by non-Indians.

This is a fair interpretation of the historical and expert evidence in the case and I see no reason to interfere with the findings of the trial judge on this score.

Professor Ralston, professor of history at the University of British Columbia, stated that “there was a definite Indian Fishing Policy which is embodied in the text of the treaties that were signed between the various groups of Indians and the Hudson’s Bay Company acting for the Colony.” In the case of the Cowichan Indians, no treaty was concluded owing to financial problems experienced in the Colony of Vancouver Island

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from the termination of the Hudson’s Bay Company grant in 1859 to the merger of the Island Colony with the mainland Colony of British Columbia in 1866. Professor Ralston described the general policy of Vancouver Island, even in the absence of treaties:

Yes, the policy on Vancouver Island was to encourage Indian fishing throughout its existence as a colony. You see, the Whites and Indians were in competition for agricultural land. Now, if you are going to put the Indians into a reserve they are not to be a charge on the public funds, they are expected to continue in their occupations as hunters and fishers and in the Cowichan case specifically as fishers.,

Professor Barbara Lane, an anthropologist, described the colonial policy in more detail:

Well, again the settlers in the Colonial Period and especially if we are speaking of the Cowichan Valley, were concerned with agriculture and agricultural pursuits and the Indians filled an economic niche if you like, in the local scheme of things in that they provided the settlers with fish for their food while the settlers were clearing land and farming and the policy was one of encouraging the Indians to fish not only to provide food for themselves so that they wouldn’t be a burden on the public purse but also to supply the resident non-Indian population with fish and also turning back a moment to the Hudson’s Bay Period, the Hudson’s Bay relied very heavily upon the Indian Fisherman to supply and provision all of the forts throughout what is now the Province of British Columbia and that cured salmon was the food staple provision for all the forts and this was procured from Indian Fishermen who harvested and in some cases cured the resources.

The exhibits filed in the case afford much evidentiary support for the views expressed above. Exhibit 10 is an excerpt from a dispatch from Governor Douglas of Vancouver Island to the Colonial Secretary, dated March 14, 1859, advocating a scheme of raising funds for Indians by leasing Indian lands:

The support of the Indians will thus, wherever land is valuable be a matter of easy accomplishment, and in districts where the white population is small, and the land unproductive, the Indians may be left almost wholly to their own resources, and, as a joint means of earning their livelihood, to pursue unmolested their favourite calling of fishermen and hunters.

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Exhibit 13 represents a memorandum of David Laird, then Minister of the Interior and the minister responsible for Indian matters, submitted to the federal cabinet and adopted by the Governor General in Council on April 24, 1874. The fifth of the recommendations reads:

5th. Great care should be taken that the Indians especially those inhabiting the Coast, should not be disturbed in the enjoyment of their customary fishing grounds, which should be reserved for them previous to White Settlement in the immediate vicinity of such localities.

Given the general agreement of the respective governments on the subject of Indian fishing, and this within the confines of the continuing debate over the lands to be reserved for Indians under art. 13, it seems difficult, if not impossible, to argue that fishing by Indians was not perceived to form a part of the “policy” of the first paragraph of art. 13.

If further evidence were necessary, Dr. Lane pointed out in reference to the four small reserves on the Cowichan river (gazetted in 1867), “the tabular statement of Cowichan Reserve in the McKenna McBride Royal Commission publication in 1916 indicates those same Cowichan Reserves as fishing stations”. Dr. Lane stated that there was no competition between Indians and Whites in the Cowichan River area in relation to fishing prior to 1871, which accords with both provincial and federal statements of a policy encouraging Indian fishing in such areas. Finally, this exchange between Dr. Lane and counsel for the Attorney General of British Columbia:

Q. Doctor Lane, you mentioned the establishment of reserves and they followed quite similarly along the river, those small areas that are marked in red on the map that has been marked?

A. Yes.

Q. And it’s my understanding that these reserves coincide with places that had been traditionally used by the Indians to practice their methods of fishing?

A. Yes.

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Q. And so, would you agree with this then that the purpose of marking those reserves was to preserve in those places that system of fishing?

A. Yes, although the Indians were not limited to those places.

Q. They were not prevented in fishing elsewhere but they were certainly protected in fishing in those places in these locations?

A. Yes.

Q. And in the traditional manners?

A. Yes.

Q. And is that your interpretation then of the constitution of those small reserves up the Cowichan River?

A. Yes.

And, she noted that all four of these sites were “weir sites”.

It is apparent from the foregoing that Indian Fishing was an essential element of both “the charge of Indians” and “the trusteeship and management of the lands reserved for their use and benefit”. It is extremely difficult to separate out the fishery from either Indians or the lands to be reserved for Indians. In the latter case, lands were to be reserved to Indians for the purpose of permitting them to continue their river fishery at the customary stations. In the former case, the Indians were to be encouraged to exploit the fishery, both for their own benefit and that of the incoming white settlers, as a means of avoiding the Indians becoming a charge upon the colonial finances. However one wishes to view the pre-Confederation “policy”, it undoubtedly included some elements of an Indian fishing policy.

Accepting, as a preliminary matter, that Indian fishing fell within the pre-Confederation policy, the question then to be determined is the precise content of that policy. One can discern a number of relevant elements:

(1) The fishery was not regulated in any significant manner prior to 1871, whether in respect of Indians or whites.

(2) The Indian fishermen were permitted to continue, and encouraged to continue, fishing for their own food requirements.

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(3) The colonial administration further encouraged the Indian fishery in order to supply some of the food requirements of the white settlers, who devoted their efforts to agriculture.

(4) In 1871 there was no commercial fishery of any importance or scale.

(5) Sport fishing had yet to develop into a significant pastime on the part of the white residents.

Judge Heard at trial was perfectly correct in suggesting that the policy of non-regulation “was predicated on the assumption the fishery resource was inexhaustible”. The trial judge described the limited regulation of fish and game by the Colony of Vancouver Island prior to Confederation. In 1859, a bill was passed, entitled “A Bill to Provide For The Preservation of Game”, which contains no reference to fish, but only to “any animal of the Deer kind… or any Duck, Teal, Goose, Woodcock, or Snipe… or any willow grouse or quail… or any dusky grouse”. Heard P.C.J. discussed an amendment in 1862 to this Act relating to fish, which is unfortunately not found in the exhibits:

The Amendment to the foregoing Bill, dated September 5th, 1862, did regulate the method of catching fish “in Victoria Arm above Point Ellis, or in any lake, pond or standing water in this Colony”.

A clear indication that the Assembly felt it had the power to regulate fishing in the Colony.

…

Other than the 1862 Amendment to the Bill of 1859, there were no fishing regulations in effect for Vancouver Island.

The federal Fisheries Act was only proclaimed in British Columbia on July 1, 1876. The first Salmon Fishery Regulations for British Columbia were adopted in 1878, and they were minimal. The first reference to Indians in the Regulations is found in those of 1888 where clause 1, relating to the salmon fishery, states:

Fishing by means of nets or other apparatus without leases or licences from the Minister of Marine and

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Fisheries is prohibited in all waters of the Province of British Columbia.

Provided always that Indians shall, at all times, have liberty to fish for the purpose of providing food for themselves but not for sale, barter or traffic, by any means other than with drift nets, or spearing.

The next change in regulations appears in those of 1900, which spelled out in much more detail what might be called the “Indian exception”. In 1917, we find the first complete provision relating to control of the Indian fishery, more or less identical to the present day s. 32 of the British Columbia Regulations. An Indian was allowed, with the permission of the Chief Inspector of Fisheries, to catch fish to be used as food for himself and his family but no other purpose. The Chief Inspector was empowered to limit or fix the area of the waters in which, the means by which, and the time in which, such fish might be caught.

As Professor Ralston explained, the Regulations of 1888 came into effect at a period of growth in the fishing industry and on the threshold of great expansion in the British Columbia fishery. Dr. Lane detailed the development of commercial and sport fishing in the Cowichan area at the turn of the century and the conflicts to which this gave rise between the Indians, on the one hand, and the sport fishermen and commercial fishermen, on the other hand. The federal Regulations became increasingly strict in regard to the Indian fishery over time, as first the commercial fishery developed and then sport fishing became common. What we can see is an increasing subjection of the Indian fishery to regulatory control. First, the regulation of the use of drift nets, then the restriction of fishing to food purposes, then the requirement of permission from the Inspector and, ultimately, in 1917, the power to regulate even food fishing by means of conditions attached to the permit.

I think it is apparent from a study of the testimony of the expert witnesses and the documentary evidence that the “policy” of the Colonial

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government existed in the context of two critical factors which have undergone major change. First, no significant commercial or sports fishery existed prior to Confederation in 1871. Second, the general perception of the fishery resource was as one of limitless proportions, although fluctuations in annual salmon runs were well known. What is plain from the pre‑Confederation period is that the Indian fishermen were encouraged to engage in their occupation and to do so for both food and barter purposes.

What protection, then, is afforded Indian fishing by art. 13 of the Terms of Union? At a minimum, one can say that “a policy as liberal” requires no discrimination against the Indian fishery as opposed to the commercial or sports fishery. I also think that one could go further—the Colony gave priority to the Indian fishery as an appropriate pursuit for the coastal Indians, primarily for food purposes and, to a lesser extent, for barter purposes with the white residents. Thus, when it comes time to take into consideration the emergence of commercial and sport fisheries, one could suggest that “a policy as liberal” would require clear priority to Indian food fishing and some priority to limited commercial fishing over the competing demands of commercial and sport fishing. Finally, there can be no serious question that conservation measures for the preservation of the resource—effectively unknown to the regulatory authorities prior to 1871—should take precedence over any fishing, whether by Indians, sportsmen, or commercial fishermen. From Dr. Lane’s testimony, as well as that of Joseph Elliott, an old member of the Cowichan band, it appears that the Indians themselves practised some form of self-imposed discipline for conservation purposes.

Does the pre-Confederation “policy” as so envisaged, assure the Indian fishery any protection in the absence of a statute or treaty or other formal document, to which one can point, embodying the protection sought to be asserted? In response to this question, in my view a denial of some measure or protection moves from a mistaken perception of the issues arising out of art. 13. The “policy” is not disembodied. Article 13 does

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not speak of “Indian fishing rights” but only “a policy as liberal”. The reference to “policy” in art. 13 establishes a limitation upon the federal legislative power in relation to the Indian fishery and sets up a standard against which that federal legislation is to be tested. It is not necessary for the appellants in this case to point to any underlying basis of “rights” for art. 13, whether based upon aboriginal title or treaty. It is sufficient to detail the pre-Confederation policy of the colonial government.

Article 13 subjects the exercise of federal powers to a limitation in respect of Indians, in that it requires the federal government to continue “a policy as liberal as that hitherto pursued by the British Columbia Government”. The language of the restriction is imperative—such a policy “shall be continued by the Dominion Government after the Union”. It would seem strange if the effect of this standard inserted into art. 13 were nothing more than “policy”, i.e. expediency, alterable at the unilateral option of the federal government. To frame the restriction in that manner would be to deny it any constitutional effect. The “policy” may be difficult to construe and the historical evidence may be fragmentary, but that is hardly reason to deprive the provision of any effect.

The appellants’ argument rests not upon any “right” derived from treaty or aboriginal title that can be invoked against federal legislation, rather upon a constitutional limitation of that very federal power to legislate in respect of Indians in British Columbia, a limitation imposed upon the federal government in the Terms of Union.

Article 13 of the Terms of Union does not demand of the federal government “a policy the same as that hitherto pursued”, but only “a policy as liberal as that hitherto pursued”. That not only introduces an element of flexibility, but also requires the Court to balance the pre‑Confederation policy with the current measures. In assessing the liberality of the post‑Confederation policy, it is necessary to take into account both the emergence of conservation as a limitation by reason of declin-

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ing fish stocks and the development of a commercial and sports fishery after 1871. Article 13 does not deprive the federal government of all regulatory authority, nor does it require an absolute priority be given to the Indian fishery.

Conservation is a valid legislative concern. The appellants concede as much. Their concern is in the allocation of the resource after reasonable and necessary conservation measures have been recognized and given effect to. They do not claim the right to pursue the last living salmon until it is caught. Their position, as I understand it, is one which would give effect to an order of priorities of this nature: (i) conservation; (ii) Indian fishing; (iii) non-Indian commercial fishing; or (iv) non-Indian sports fishing; the burden of conservation measures should not fall primarily upon the Indian fishery.

I agree with the general tenor of this argument. Article 13 calls for distinct protection of the Indian fishery, in that pre-Confederation policy gave the Indians a priority in the fishery. That priority is at its strongest when we speak of Indian fishing for food purposes, but somewhat weaker when we come to local commercial purposes. If there are to be limitations upon the taking of salmon here, then those limitations must not bear more heavily upon the Indian fishery than the other forms of the fishery. With respect to whatever salmon are to be caught, then priority ought to be given to the Indian fishermen, subject to the practical difficulties occasioned by international waters and the movement of the fish themselves. But any limitation upon Indian fishing that is established for a valid conservation purpose overrides the protection afforded the Indian fishery by art. 13, just as such conservation measures override other taking of fish.

Unfortunately for the appellants, the facts of this case do not fall within their self-described limits of art. 13. In 1974, the spring salmon run was later than its usual mid-August peak of entry

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into Cowichan Bay. The salmon run appeared to be well below average, about half of the normal run for the Cowichan, on the basis of the information then available to the Fisheries officials. At the same time, there was record or near-record low precipitation and consequently low water levels in the Cowichan river system. The officials responded first by closing a portion of Cowichan Bay to sports fishing by an order effective August 27. The next step was an order of closure of the river to all fishing on September 22, 1974. The closures were lifted on November 17, 1974. In the circumstances, I find it difficult to perceive how conservation could have been assured by any other method which could have given the necessary priority to the Indian river fishery.

Having said that, I would nonetheless reject the view of the matter put forward by the respondent in this appeal:

The Regulations and Closing Order are aimed at all persons in an effort to conserve adequate stocks of fish

…

Decisions in this regard are made by appropriate legislative authority and the wisdom of such decisions are not matters for review by the Courts.

By reason of the constitutional nature of art. 13, the contention that the steps taken by the Fisheries officials here are immune from review by the Courts is untenable. A mere order of closure by a Fisheries officer in British Columbia under s. 4 of the Regulations may be a clear indication of a conservation purpose, but it is not conclusive on the question of protection of Indian fishing. Considerable latitude should be given to the judgment of the Fisheries officials in deciding the questions of when closure is required for conservation purposes and how that closure is to be effected. That does not, however, completely shield those measures from judicial review for constitutional competence.

If there is a challenge, then the questions on review will be whether the steps taken by the Fisheries authorities were reasonable and necessary for the purposes of conservation, and whether

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efforts were made to assure priority to the Indian fishery, within the practical limits of modern fisheries management.

On the facts of the case at bar, and in particular the evidence of Mr. Armstrong, the senior Fisheries officer, it seems to me that the Fisheries officials have shown that the closure of the river fishery was reasonable and necessary for the purpose of conservation and does not offend against the priority assured to the Indian fishery by reason of art. 13 of the Terms of Union.

In the result, I would dismiss the appeals.

Appeals dismissed.

Solicitor for the appellants: Douglas Sanders, Victoria

Solicitor for the respondent: Roger Tassé, Ottawa.

Solicitor for the Attorney General of British Columbia: R.M.J. Hutchinson, Victoria.