THE INDIAN FISHERY 179 



Many Indians have expressed concern that the Depart- 

 ment might, without consultation, authorize commercial 

 exploitation of certain minor manne species that they 

 have customarily relied on. They are particularly 

 apprehensive about eulachon. This fish, which has such a 

 special place in Indian food and traditions, is not now 

 widely harvested commercially, but there are recurrent 

 rumours of a potential market for eulachon and hence of 

 its commercial exploitation. Indians are concerned that 

 commercial harvests of the relatively small stocks of this 

 species would soon impinge on their traditional supplies. 

 Similar concerns are felt about licensing commercial har- 

 vests of certain types of seaweed that are traditional 

 foods among some coastal bands, and of minor shellfish 

 species. Some argue that the commercial abalone fishery 

 has already interfered with a traditional food source. 



In response to these concerns, the Department has 

 made various informal arrangements to improve its com- 

 munications with those involved in the Indian fishery. 

 Some fishery oflicers consult with and seek the advice of 

 local Indians, and the Department has recently created at 

 the regional level the position of Indian liaison oflJicer to 

 improve communication with Indian people (although 

 the position is presently unfilled). Regular discussions are 

 held with the bands along the Skeena River, through the 

 Skeena River Advisory Committee, which help the 

 Department determine the escapement required from the 

 commercial fishery to supply the Indian food fishery, as 

 well as to provide for adequate spawning. Both the 

 Departments of Indian and Northern Affairs and Fisher- 

 ies and Oceans have held frequent meetings with Indian 

 groups in the Pacific region and in Ottawa to confer on 

 Indian fishery issues. 



Indian organizations have suggested that more formal 

 consultative structures be adopted to assist both Indians 

 and the Department; suggestions include a representative 

 Indian fisheries board that would implement a "co-man- 

 agement strategy" for developing Indian fisheries,-^ and a 

 board to coordinate management of all Indian fisheries 

 on the Fraser River system.-'' My proposals build on 

 some of these ideas; I suggest a formal consultative body 

 for Indian fishing interests and contractual arrangements 

 to enable Indians to become directly involved in manage- 

 ment and enhancement. 



Legal Issues 



In recent decades Canadian courts have grappled with 

 Indian rights to fisheries and wildlife resources in relation 

 to federal and provincial law-making pwwers. For Indi- 

 ans in British Columbia this process has been compli- 

 cated by the fact that few of the bands ever formally 

 relinquished their claims to land and resources under 

 treaties. So, while some Indian claims on fish are based 

 on treaties, most rely on unextinguished aboriginal rights 



and the Terms of Union between British Columbia and 

 Canada. I review below the issues involved in each of the 

 claims and related legal problems. 



Treaties Indian treaties in British Columbia are 

 confined to Vancouver Island and the northeast part of 

 the province. In the 1850s, fourteen "Douglas treaties" 

 were negotiated with various coast Salish and Kwakiutl 

 bands on the island by James Douglas, then of the Hud- 

 son's Bay Company. Under these treaties the bands for- 

 mally surrendered claims to certain lands in return for 

 cash, but they retained their village sites and fields. In 

 addition, in identical language for all treaties, they were 

 given the assurance that they were "at liberty to hunt 

 over the unoccupied lands, and to carry on (their) fisher- 

 ies as formerly."-^ 



Other than the Douglas treaties, the only treaty affect- 

 ing Indians in British Columbia is Treaty No. 8, signed at 

 the turn of the century between Dominion Treaty Com- 

 missioners and several Indian tribes, covering an exten- 

 sive tract of land in northeastern British Columbia, 

 Alberta and the Northwest Territories. Here, the Indians' 

 fishing rights, according to the text of the treaty, were 

 more qualified: 



(T)hey shall have the right to pursue their 

 usual vocations of hunting, trapping and 

 fishing throughout the tract surrendered as 

 heretofore described, subject to such regula- 

 tions as may be made from time to time by 

 the Government of the country under the 

 authority of Her Majesty, and saving and 

 excepting such tracts as may be required or 

 taken up from time to time for settlement, 

 mining, lumbering or other purposes.-*' 



Despite these formal assurances in treaties, Canadian 

 courts have consistently held that any rights they confer 

 to the Indians over fish and wildlife are subject to federal 

 laws that relate to these resources. Thus, hunting restric- 

 tions in the federal Migratory Birds Convention Act have 

 been applied by the Supreme Court of Canada to Indians 

 who were assured hunting rights under treaty.-' More to 

 the point for this Commission, this principle has been 

 applied to Indians on southern Vancouver Island where 

 one of the Douglas treaties is in effect.-* So, notwith- 

 standing the a.ssurances of access to traditional fisheries 

 contained in these treaties, Indians are required by law to 

 comply with the regulations under the Fisheries Act 

 respecting permits, gear, fishing times and so on, even 

 though the treaties themselves do not permit such 

 qualifications to fishing rights. 



I find these court decisions unsettling. It is hard to 

 avoid the conclusion that they permit the government to 

 unilaterally curtail the Indians' contractual rights embo- 

 died in treaties. The editor of a recent law report reached 



