Date: 19980624
Docket: T-776-98
BETWEEN:
CHIEF ROBERT HOPE AND
THE BAND COUNCIL OF THE
YALE INDIAN BAND, ON BEHALF OF
THE YALE INDIAN BAND, ALSO
KNOWN AS THE YALE INDIAN NATION,
Applicants,
- and -
THE AITCHELITZ INDIAN BAND,
THE CHAWATHIL INDIAN BAND,
THE CHEAM INDIAN BAND,
THE CHEHALIS INDIAN BAND,
THE KATZIE INDIAN BAND,
THE KWAW-KWAW-A-PILT INDIAN BAND,
THE LAKAHAHMEN INDIAN BAND,
THE KWANTLEN INDIAN BAND,
THE MATSQUI INDIAN BAND,
THE OHAMIL INDIAN BAND,
THE PETERS INDIAN BAND,
THE POPKUM INDIAN BAND,
THE SCOWLITZ INDIAN BAND,
THE SEABIRD ISLAND INDIAN BAND,
THE SKAWAHLOOK INDIAN BAND,
THE SKOWKALE INDIAN BAND,
THE SKWAH INDIAN BAND,
THE SKWAY INDIAN BAND,
THE SOOWAHLIE INDIAN BAND,
THE SQUIALA INDIAN BAND,
THE SUMAS INDIAN BAND,
THE TZEACHTEN INDIAN BAND,
THE UNION BAR INDIAN BAND,
THE YAKWEAKWIOOSE INDIAN BAND,
HER MAJESTY THE QUEEN,
THE MINISTER OF FISHERIES AND OCEANS
AND SUSAN FARLINGER,
Respondents.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] The First Nations fishery near Yale, British Columbia, just below the Fraser Canyon, has always been of prime importance for it is in an area that yields a maximum of return for a given effort: it is far easier to catch salmon in the relatively confined areas and eddies in the few miles below the Fraser Canyon than in the broader reaches of the lower Fraser River.
[2] By this motion the Fisheries Council of British Columbia (the "Fisheries Council") seeks to intervene in a proceeding in which the Yale Indian Band challenges the right of the Minister of Fisheries to issue an aboriginal communal salmon fishing licence, the effect of which is to allow the Yale Band and twenty-four lower Fraser River Indian Bands (the "Lower Fraser Bands"), who are Respondents, to fish the Fraser River in an area on either side of Yale, using traditional fishing methods. This fishing by the Lower Fraser Bands is said to be in an area which the Yale Band looks upon as within its traditional territory, resulting in an alleged infringement of their aboriginal title by both the government and by the Lower Fraser Bands.
[3] The Fisheries Council is an experienced intervenor: in many past instances it has intervened in fisheries related matters and has brought to those proceedings viewpoints and insights of value to both the court and, more important, to the management of various fisheries as public resources.
[4] In the present instance the dispute is not a dispute over a public salmon resource, involving control, allocation or conservation of salmon, for the Yale Band does not dispute the right of the Minister of Fisheries to manage the Fraser River salmon. Rather it is a private dispute in which the Yale Band says it alone should be allowed to fish for its part of the salmon allocated to the overall aboriginal fishery, in its traditional territory. The Yale Band, in effect, calls upon the Minister of Fisheries to justify the reasonableness of the permissive provisions of the communal fishing licence which favour the Lower Fraser Bands as was done, for example, in R. v. Nikal [1996] 3 C.N.L.R. 178 at 210 ff (S.C.C.). To simplify the position of the Lower Fraser Bands it is that they have a right to fish for their share of the salmon, allocated under the communal licence, in the prime fishing areas in the Fraser River near Yale.
[5] The onus is on the potential intervenor to show it has a legitimate interest in the outcome and that it can bring to the proceeding relevant, different or new viewpoints, insights or expertise which the other parties do not have and which would allow the Court to fully and effectually adjudicate the matter.
[6] In the present instance, given that there is no issue as to either alteration of the catch allocation to this particular aboriginal fishery, or to overall control by the Minister of Fisheries of aboriginal fishing on the Fraser, the interest of the Fisheries Council is not obvious: without a reasonably clear legitimate interest the Fisheries Council ought not to be allowed to take this litigation away from the parties who wish to resolve a private dispute. Furthermore, at issue will be the historic and current rights and obligations of the Yale Band, on the one hand, and of the Lower Fraser Bands, on the other hand, to this particular fishing area. I do not see what different or new viewpoints, insights or expertise, historic or current, the Fisheries Council could bring which might add to these proceedings and which would assist the Court in its task.
[7] In the result I have dismissed the Fisheries Council's application for intervention. I now consider this in more detail.
SOME RELEVANT BACKGROUND
[8] The Yale Band claims aboriginal right and title, as the Yale First Nation, in a salmon fishery in the Fraser River between about Hope and a point up river from Yale. The Respondents, the Lower Fraser Bands, contest the Yale Band's right and title to the fishery in this particular reach of the Fraser River, claiming that they and the Yale Band are one people, with some sort of joint tenure to the use of the Fraser River, near Yale, for their fishery. The Yale Band says it is a separate people and while it concedes that, historically, from time to time, members of the Lower Fraser Bands have fished from and in the territory claimed by the Yale Band, this was always a permission granted, in special circumstances, including by reason of specific individual family ties.
[9] The right to fish in the prime area near Yale has now been brought to a head through the issue of a communal fishing licence granted the First Nations of the lower Fraser, that is to the Applicants and to the Lower Fraser Bands, which allows all of the Lower Fraser Bands to fish for their allocation, under the communal licence, in the area between Strawberry Island, about midway between Hope and Yale and Sawmill Creek, above Yale. This is a part of the area to which the Yale Band says it has an historic claim giving it aboriginal rights and title.
[10] Subject to an ambiguity in one of the paragraphs of the Originating Notice of Motion, which I will touch upon shortly, the Yale Band makes no claim for control of the fishery in the territory claimed, but rather says that the Minister of Fisheries, through the Department of Fisheries and Oceans, may not by issuing a communal salmon fishing licence authorize one band to fish in the traditional fishing places and territory of another band. In effect the Yale First Nation says that to authorize such entry into its territory, in this instance into its fishery, is a prima facie infringement of the Yale First Nation's aboriginal right to fish for food, social and ceremonial purposes. Here I would note that the communal licence is specific to these purposes: it is not a commercial licence under which salmon may be caught and sold. The Originating Notice of Motion is for review of the issuance of the communal fishing licence for May 1998. It seems the issuance of future communal fishing licences, to which the outcome of this proceeding may apply, is expected. The relief sought includes a prohibition against the Minister of Fisheries to prevent issuance of communal fishing licences for the Strawberry Island to Sawmill Creek area to the Lower Fraser Bands.
[11] Paragraph 6 of the Originating Notice of Motion is not easy to read and is perhaps ambiguous. The Yale Band seeks:
| "6. An injunction against the Defendants and each of them from enforcing the fishing regulations against the Yale Indian Band, also known as the Yale First Nation, or members of the Yale Indian Band where said members are fishing as indicated within the fishing guidelines proposed by the Yale Indian Band, also known as the Yale First Nation.". |
As I read paragraph 6 it seeks to prevent the Minister of Fisheries from enforcing fishing regulations against Yale Band members, so long as they are fishing within guidelines proposed by the Yale Band. I indicated to counsel that this might be construed as giving the Yale Band carte blanche to allow its members to fish without regard to regulations set by the Minister of Fisheries in order to properly manage the salmon resource. Counsel for the Yale Band does not read paragraph 6 in this way, but offered by oral motion to delete it from the Originating Notice of Motion for the Yale Band is not, in this proceeding, challenging the right of the Minister of Fisheries, through the Department of Fisheries and Oceans, to manage the salmon resource. Rather the Yale Band requires the Minister of Fisheries to cease allowing others to fish for their allocation of salmon in Yale Band territory. In short, the Lower Fraser Bands should catch their allocation in their own territories lower down on the Fraser River. To make this thrust clear and to eliminate any suggestion that the Yale Band wishes to manage the fishery between Strawberry Island and Sawmill Creek, paragraph 6 of the Originating Notice of Motion is deleted.
THE INTERVENOR'S MOTION
[12] The Intervenor, which represents a substantial cross-section of the commercial fishing industry, points out that it requires continued access to the salmon fishery as a common property. As such it relies upon the authority of the Department of Fisheries and Oceans to properly manage the salmon resource. The Intervenor submits that it is directly interested in the existence of aboriginal title to territory which includes a river fishery and to any exclusive aboriginal fishing right. The Intervenor is concerned about any requirement that the government seek consent which might hamper its administrative authority and its discretion to manage the aboriginal fishery. The Intervenor is concerned as to the existence of an aboriginal right to fish commercially.
[13] The Intervenor believes that a number of issues of law arise out of the proceeding including the application of principles introduced by the Supreme Court of Canada in Delgamuukw v. British Columbia (1998) 153 D.L.R. (4th) 193, and how it impinges on a river fishery; the consent required of the holder of aboriginal fishing rights, presumably in the context of management by the Minister of Fisheries; the existence, scope and consequences of an aboriginal food fishing right; the scope allowed to the Minister in issuing aboriginal communal fishing licences; and the reconciliation, substantive and procedural, of the law respecting aboriginal rights with the traditional jurisprudence governing the judicial review of administrative action.
CONSIDERATION
[14] Rule 109 allows the Court the discretion to give leave to a person to intervene in a proceeding. The Rule itself offers no guidelines on the exercise of the discretion, however there is substantial case law, built around former Rule 1716, which is applicable.
[15] If this proceeding were more than a rivalry, skirmish and contest between Indian bands over where they might catch their given allocation of salmon, there could well be a place for the Fisheries Council of British Columbia as an intervenor with a different point of view, both a view potentially at odds with the aboriginal position and a view unfettered by the Crown's dual obligations and responsibilities to both the First Nations and to the public as a trustee and conservator to manage the salmon fishery as a public resource.1 However, an intervenor must take a proceeding as it exists and, moreover, may not litigate new issues.
New Viewpoints But Not New Issues:
[16] In this instance the proceeding is not judicial review involving the application of principles set out by the Supreme Court of Canada in cases such as Delgamuukw (supra), R. v. Sparrow [1990] 1 S.C.R. 1075, R. v. Van der Peet [1996] 2 S.C.R. 507, R. v. Adams (1996) 138 D.L.R. (4th) 657 and the like: those principles are a given and certainly might come into play in future litigation dealing with allocation of and priority to fish for various uses, but that is not the case here, for the allocation is a given which is not challenged. Counsel for the Fisheries Council submits there is no indication that, in this instance, the allocation of salmon will remain the same: conversely, there is no indication it should change to the detriment of the members of the Fisheries Council. Indeed, counsel for the Yale Band submits, although one might characterize it as speculation, that by removing the pressure on the salmon in the confined reach of the Fraser River, just below the Fraser Canyon, the Department of Fisheries and Oceans might have better control over the catch with the result being a better managed spawning escapement and thus a benefit to the commercial interests represented by the Fisheries Council.
[17] Still dealing with the concept that an intervenor takes the record as it exists, while an intervenor may bring new viewpoints and special knowledge to a proceeding, an intervenor may not litigate new issues. Counsel for the Yale Band referred to a broad and attractive proposition from MacDonald's Restaurants of Canada Ltd. v. Etobicoke (1977) 5 C.P.C. 55, that if the interests of all parties are the same, what more might an intervenor ever bring to a case. That case might well be distinguishable in that the intended intervenor conceded that, essentially, it took the same position as one of the parties, whereupon the court exercised its discretion and refused leave to intervene. Here the Fisheries Council does not take the same viewpoint, so one must go back to some more basic principles for the proposition that an intervenor may not litigate new issues.
[18] In Canada (A.G.) v. Aluminum Co. of Canada [1987] 3 W.W.R. 193, the British Columbia Court of Appeal, referring to various authorities, to the effect that intervenors ought not to be allowed to redefine the issues, thus forcing the parties to deal with issues which are not their own, noted:
| "Interveners should not be permitted to take the litigation away from those directly affected by it. Parties to litigation should be allowed to define the issues and seek resolution of matters they determine appropriate to place in issue. They should not be compelled to deal with issues raised by others." (p. 206). |
Mr. Justice of Appeal Wakeling, in Canada (A.G.) v. Saskatchewan Water Corp. [1991] 2 W.W.R. 614 (Sask. C.A.), adopted this position, interpreting it that "... an intervener cannot seek to increase the number of issues that the parties themselves have included in the action" and that:
| "To enable the interveners to file evidence which the parties themselves would not have been permitted to do clearly creates an inconsistency within the process, broadens the factual base over that which was before the trial judge and diverts focus from the primary issues under appeal. For this reason, the role the interveners seek to play adds a complication rather than advancing or improving the appeal process." (ibid, p. 616). |
[19] Equally appropriate in the present instance is British Columbia Telephone Company v. Telecommunications Workers Union (1985) 65 B.C.L.R. 96 (B.C.S.C.), in which Mr. Justice Gould pointed out that interveners ought not to be allowed to controvert a relatively straightforward application into a complex case involving a new cause of action: such ought not to be inflicted upon parties, but rather would-be interveners ought to initiate their own litigation to achieve their particular ambitions:
| "The applicants wish to enter the petition litigation to challenge the validity of the closed shop contracting out provision in the collective agreement between the parties to the petition, B.C. Tel and the union. Should they be allowed to intervene, their arguments will be based on the Charter and will introduce complicated issues unrelated to the stated issues between the parties to the petition. Permission to intervene would convert a comparatively straightforward application to set aside an arbitration award into a complex constitutional case on a new cause of action. Why should the applicants' ambition to litigate the broad issue of validity under the Charter of the closed shop concept be inflicted upon the parties to this petition, which is upon issues unrelated to the Charter? The applicants should initiate their own litigation to achieve their particular litigious ambition." (p. 101). |
Mr. Justice Gould concluded by adopting a succinct passage from Re Clark et al. and Attorney-General of Canada (1978) 81 D.L.R. (3d) 33 at 38 (Ont. H.C.):
| "Where the intervention would only serve to widen the lis between the parties or introduce a new cause of action, the intervention should not be allowed.". |
[20] In the present instance the parties dispute over where they might catch their given allocation of Fraser River salmon and whether the Minister of Fisheries may, without consultation or permission, allow the Lower Fraser Bands to fish in the territory claimed by the Yale Band. To import the issues which the intervenor believes pertinent, the impingement of Delgamuukw on a river fishery, the consent required of the holder of aboriginal fishing rights, the existence, scope and consequences of an aboriginal food fishing right, the scope allowed to the Minister in issuing aboriginal communal fishing licences and the reconciliation, substantive and procedural of the law respecting aboriginal rights with the traditional jurisprudence governing the judicial review of administrative action, is to broaden the proceeding far beyond that envisioned by the parties and to do so at far greater expense than ever envisioned by the parties. I would refuse to allow the Fisheries Council to intervene, to thus widen the lis between the parties and introduce new considerations, but there are also other reasons why the Fisheries Council ought not, in this instance, to succeed in its application to be added as an intervenor.
Conditions for Intervention
[21] The case to be determined is not an assessment of the management and conservation of the Fraser salmon stock, a massive and complex undertaking, but, as I have said, a dispute at a much simpler level between Indian First Nations as to where on the Fraser River they may catch a given allocation and the jurisdiction of the Minister of Fisheries to force all of that fishery into one band's claimed territory without consultation or permission.
[22] To begin and this is a commonplace proposition in dealing with intervention applications, the onus is on the intervenor to convince the Court that the proceedings would be enhanced by the intervention: see for example M. v. H. (1994) 20 O.R. (3d) 70, a decision of the Ontario Court (General Division) at p. 77. Counsel for the Yale Band has suggested a number of factors to be taken into consideration by which to test whether the proceedings would be enhanced by the intervention of the Fisheries Council. More simply, Mr. Justice Rothstein, in Canadian Council of Professional Engineers v. Memorial University of Newfoundland (1998) 135 F.T.R. 211, relying on Canadian Wildlife Federation Inc. et al. v. Canada (Minister of the Environment) and Saskatchewan Water Corp. (1989) 26 F.T.R. 241 at 243, sets out three conditions to be read conjunctively:
| [1] Does the proposed intervener have an interest in the outcome of the litigation? |
| [2] Will the rights of the proposed intervener be seriously affected by the litigation? |
| [3] Would the proposed intervener bring to the court a point of view different from that of the defendant? |
These criteria appear, in one form or another, throughout the Federal Court's case law: see for example Edmonton Friends of the North Environmental Society v. Canada (1990) 73 D.L.R. (4th) 653 at 660 - 661 (F.C.A.), and BBM Bureau of Measurement v. Director of Investigation (1982) 63 C.P.R. (2d) 63 (F.C.A.). However I have a little difficulty with the concept that the criteria should be applied conjunctively, that an applicant for intervention must satisfy all of the criteria, for as the Court of Appeal pointed out in Edmonton Friends of the North Environmental Society, the Court has been willing to join a party simply because the party's rights will be directly affected. Perhaps the answer to this lies with the concept of balancing competing interests, an approach suggested by counsel for the Yale Band. In M. v. H. (supra) Mr. Justice Epstein, at p. 77, considers balancing the contribution the intervenors might make, on the one hand, against the disruption, the increase in magnitude and complexity of the case, the length of the proceedings and the increase in cost, on the other hand. In effect this is a cost and benefit analysis to see if the proposed intervention would enhance the case.
[23] I turn first to the interest the intervenors might have in this private dispute, the exercise of rights given under a communal fishing licence, to harvest a given number of salmon, a right given to a number of individuals, making up what I have called the Lower Fraser Bands, in an area of the Fraser River claimed by the Yale Band, by way of aboriginal title, as its historic and current territory. Counsel for the Fisheries Council refers to a sensible proposition in Kruger et al. v. The Queen [1978] 1 S.C.R. 104, in which the Supreme Court touched on the consideration of the issue as to the nature of aboriginal title and, at pp. 108 - 109 noted that:
| "... a sound rule to follow is that questions of title should only be decided when title is directly in issue. Interested parties should be afforded an opportunity to adduce evidence in detail bearing upon the resolution of the particular dispute. Claims to aboriginal title are woven with history, legend, politics and moral obligations. If the claim of any Band in respect of any particular land is to be decided as a justiciable issue and not a political issue, it should be so considered on the facts pertinent to that Band and to the land, and not on any global basis.". |
This acknowledgement by the Supreme Court of Canada that interested parties ought to have the opportunity to adduce evidence, as to aboriginal title, evidence in the nature of history, legend, politics and moral obligations, could well be very applicable in the present instance, but only between the parties themselves, for the Fisheries Council appears not to be able to bring any special expertise, on history, legend, politics and moral obligations, which would otherwise not be available through the evidence of the present parties.
[24] Next I must consider whether the rights of the Fisheries Council will be seriously affected by the outcome of this present litigation. There is no suggestion that the Yale Band and the Lower Fraser Bands claim, in this particular proceeding, a greater share of Fraser River salmon. The Yale Band does not now claim a right to manage the fish that pass through its territory. Neither priority to the fish nor the existence, scope or consequences of an aboriginal food fishery are at issue.
[25] The Fisheries Council might have some interest in the authority of the Minister of Fisheries to grant a communal fishing licence, if that were the issue, however that aspect, per se, need not be explored, for the point is not the authority of the Minister of Fisheries to issue such a communal licence, but rather to issue a licence to one group to fish to a given extent in another's territory.
[26] The Fisheries Council professes an interest in conservation and possible interference with natural selection at Yale, where the salmon may rest in back eddies and thus become easy prey for the food fishery. As Mr. Hunter, president of the Fisheries Council puts it in his affidavit of 6 May 1998:
| 13. Experience under the Department of Fisheries and Oceans' Aboriginal Fishing Strategy and particularly the Pilot Sales component showed in 1992 that sockeye at Yale were extremely vulnerable to a fishery. Having avoided natural mortality for a 4 year period, and having run the gammit of fisheries from Alaska to the lower Fraser, it is vital to ensure that this natural selection and fishery process is not abandoned when the fish reach Yale. |
One wonders how much influence natural selection, as opposed to chance, has in the arrival of salmon at Yale. However the fishery on the Fraser at Yale is a matter of management by the Minister of Fisheries: neither the Yale Band nor the Lower Fraser Bands challenge this right, the right to manage the resource, in the present proceedings.
[27] There may be material in the factors suggested by the Fisheries Council which ought to be and in all likelihood will be explored in future litigation, but which ought not to be considered by adding such extraneous issues to the private lis between the Yale Band and the Lower Fraser Bands. In short, the balance in the present action is very much against the Fisheries Council from the point of view of being affected by the outcome.
[28] The third criteria to explore is whether the Fisheries Council might bring to these proceedings a point of view different from that of the Defendants, a relevant and useful point of view without which both the court and its decision might well be the poorer.
[29] Certainly the Crown might be constrained in its views, for it has duties and obligations both to the contending Indian Bands and to salmon management and perhaps must weigh any infringement of the territorial rights of the Yale Band against other factors, such as relatively easier fisheries management, if all of the food fishing takes place at one location. However the Crown can bring these concerns to the attention of the Court.
[30] As I have suggested the Fisheries Council may well have different views about the nature of aboriginal title, its impingement on a river fishery and the scope and consequences of an aboriginal food fishery. But these are not at issue. To impose a viewpoint as to the reconciliation, substantive and procedural, of the law respecting aboriginal rights, with traditional jurisprudence governing judicial review of administrative action, a point which the Fisheries Council believes important, would be to complicate proceedings and could well result with the Court becoming bogged down by an unnecessary perspective, or as put by Mr. Justice Rothstein in Canadian Council of Professional Engineers (supra):
| "The court must be concerned with the expeditious and efficient progress of litigation, always having regard to fairness to the parties and indeed to the proposed intervenors. Expeditiousness and fairness considerations, I think, are at the root of the conditions that must be met by proposed intervenors. Where the rights of intervenors are not affected by the litigation and the intervenors are not shown to add anything new to the issues, the court cannot allow itself to become bogged down with an expansion of participants in the litigation. While some authorities suggest that the rules of court may be used to avoid or reduce delay or expense, from a practical perspective, the addition of participants will almost inevitably complicate the proceedings and result in some additional time and expense." (p. 213). |
[31] I do not see that the Fisheries Council would bring any new and useful point of view to these proceedings.
CONCLUSION
[32] It is always a pleasure to hear a case well argued by all counsel. However the price of that enjoyment then becomes that of deciding the issue.
[33] Clearly this is a situation in which I ought to exercise caution before entertaining an intervention into an action involving private rights. Here, despite the excellent counsel work of Mr. Lowes, I have not been persuaded that the Fisheries Council of British Columbia has a sufficient interest in the outcome and in the private law issues raised, or that it has a relevant different perspective on the issues such that it might make a useful contribution to a resolution. It may be able, in some other instances, to make major contribution, but not in this narrow case. The Fisheries Council's contribution would be, at best, very limited. This must be balanced against the disruption it would cause to the action. I do not see how the Fisheries Council might profitably fit into this case.
[34] The Fisheries Council ought not to be allowed to intervene to bring up new issues and to complicate and add expense to the law suit, in effect taking the litigation away from the parties. The motion of the Fisheries Council of British Columbia to intervene is denied.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
24 June 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: June 19, 1998
COURT NO.: T-776-98
| STYLE OF CAUSE: THE YALE INDIAN BAND AND OTHERS |
| v. |
| HMQ AND OTHERS |
Intervenors.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY
dated June 24, 1998
APPEARANCES:
| Mr. Keith Lowes for the Proposed Intervenor |
| Mr. Rory Morahan for the Applicant |
| Ms. Louise Mandell, Q.C. for the Sto:lo Bands |
| Mr. Harry Wruck, Q.C. for Her Majesty the Queen |
SOLICITORS OF RECORD:
| Mr. Keith Lowes for the Proposed Intervenor |
| Barrister and Solicitor |
| Mr. Rory Morahan for the Applicant |
| Morahan & Aujla |
| Ms. Louise Mandell, Q.C. for the Sto:lo Bands |
| Mandell Pinder |
| Mr. Morris Rosenberg for Her Majesty the Queen |
| Deputy Attorney General of Canada |
1 Counsel referred me to an interesting chapter on Public Rights from Water Law in Canada: The Atlantic Provinces by Gerard La Forest, Q.C. (as he then was) published in 1973 by the Department of Regional Economic Expansion, Ottawa. There is certainly the traditional public right of fishing in tidal waters and perhaps, unique to Canada, as opposed to England, a public right to fish in both navigable non-tidal waters and non-tidal waters in which the riverbed is owned by the Crown (p. 196). While the Crown is, as parens patriæ, a trustee of this public right to fish (ibid, p. 197), one wonders how much of a public right of fishing still exists given the present statutory licensing regime presided over by the Minister of Fisheries.