R. v. Nikal, [1996] 3 C.N.L.R. 178 (S.C.C.), rev’g [1993] 4 C.N.L.R. 117 (B.C.C.A.)

Description

The respondent a Wet'suwet'en Indian, a member of the Moricetown Band, was fishing in the Moricetown canyon, an area where Wet'suwet'en Indians have fished since time immemorial. He was charged with fishing without a licence, contrary to s.4(1) of the British Columbia Fishery (General) Regulations. He Maintained that he was fishing under the authority of a Moricetown by-law, passes under the authority of s.81(1)(o) of the Indian Act, R.S.C. 1985, c.I-5 and never rejected by the Department of Indian Affairs. The Department of Fisheries and Oceans (DFO) maintained that the by-law did not apply to the place where he was fishing. The Wet'suwet'en have a long history of fishery management and conservation in the area, including controlling, through the hereditary chiefs, who can fish, where and when. The respondent argued that the imposition of the DFO licence was in conflict with the aboriginal rights as guaranteed by s.35(1) of the Constitution Act, 1982 and therefore of no force and effect.