180 III! isni \\ I ISHIRY 



a similar cDnclusion. in rctcrring to this line orunirt deci- 

 sions in an uniisiially pt>ink\l coniiiicnl as "a sail historv' 

 ot national dishonour." ' 



Canadian judicial attitudes toward Indians' treaty 

 rights in this region contrast sharply with those in the 

 State of Washington, where, under the controversial 1974 

 "B<.>ldt decision," fishing rights in 5 treaties were inter- 

 preted to provide a 50 percent interest in fisheries 

 resources to Indian tribes. Following protracted litigation 

 that came on the heels ot the initial court ruling, an 

 umbrella Indian fisheries organization has recently par- 

 ticipated with governmental authorities in co-managing 

 the resource, as a means for securing the Indians' share. 



Aboriginal rights Most Indians in British Columbia 

 have never formally surrendered land and resources 

 through treaties, however, so their claims to fish rest on 

 their aboriginal rights. All of the mainland (with the 

 exception of the land in the north-east covered by Treaty 

 No. 8), most of the coast, including the Queen Charlotte 

 Islands, and parts of Vancouver Island fall into this cate- 

 gory. 



In the early 1970s the Nishga Band attempted to 

 obtain judicial clarification of the status of these lands 

 and resources by launching a law suit against the prov- 

 ince, basing its claim on unsurrendered aboriginal rights 

 and a 1763 British Royal Proclamation. In its decision, 

 the British Columbia Court of Appeal declined to recog- 

 nize aboriginal rights."' Subsequently, the Supreme Court 

 of Canada, in a fragmented decision, left the issue unre- 

 solved and in limbo.^' Since then, the Supreme Court of 

 Canada has decided that any native aboriginal rights that 

 remain unextinguished are subject to the Fisheries Act 

 and regulations concerning Indian fishing, placing treaty 

 and nontreaty Indians on the same legal footing with 

 regard to fisheries.'- 



Despite the lack of judicial unanimity about the legal 

 nature of aboriginal rights, the federal government 

 announced in 1973 its intention to negotiate with the 

 Indians for the extinction of their claims. This has led to 

 talks with some Indian groups, but by and large progress 

 has been slow. 



The recently proclaimed Canadian Charter of Rights 

 and Freedoms provides that "the existing aboriginal and 

 treaty rights of the aboriginal peoples of Canada are 

 hereby recognized and affirmed."'' But the effect of this 

 guarantee in relation to Indian fisheries is unclear, and so 

 far remains untested in the courts. 



Terms of Union When British Columbia joined Con- 

 federation in 1871 the Dominion undertook responsibil- 

 ity for Indians and pledged that "a policy as liberal as 

 that hitherto pursued by [the] British Columbia Govern- 

 ment shall be continued by the Dominion Government 



after the Union.'"' The Supreme Court of Canada has 

 since determined that this provision ofTcrs no comfort to 

 the Indians ot British Columbia." The Fisheries Act and 

 regulations have overriding authority. Inconsistencies in 

 the application of this decision by British Columbia 

 lower courts leave unresolved some important issues con- 

 cerning the management priority to be accorded Indian 

 fisheries, and I understand that litigation to higher courts 

 on this question is currently proceeding. 



Indian tislung by-laws The Indian Act authorizes 

 band councils to enact by-laws covering a wide range of 

 activities on reserves, including fish preservation, protec- 

 tion and management."' These may be vetoed by the 

 Minister of Indian and Northern Affairs within 40 days 

 after he is notified of them; otherwise they become 

 effective. So far, such fishing by-laws have been adopted 

 by 10 bands in the region. 



To the extent that these by-laws conflict with the Fish- 

 eries Act and regulations, their legal status is far from 

 clear. The conflict here is not between federal legislation 

 and the rights claimed by Indians, but rather between 

 two federal statutes. Indians claim that the Indian Act, 

 and hence also the by-laws passed under it, suf>ercede the 

 Fisheries Act and regulations, a contention that has been 

 supported by a legal opinion of the federal Department 

 of Justice. According to this view, band councils can 

 assert regulatory control over fisheries on reserve lands 

 by approving an appropriate by-law without consulting 

 with the Department of Fisheries and Oceans. On the 

 other hand, the Department has taken the position that, 

 in the interests of resource conservation, the Fisheries 

 Act must be complied with in all cases. In the Depart- 

 ment's view, the Fishenes Act must therefore have prior- 

 ity; band by-laws should not eliminate the obligation of 

 Indians to obtain permits to fish and to observe their 

 terms, conditions, and other fishing regulations. How- 

 ever, the Department has apparently been instructed to 

 follow the legal opinion. 



To date, the Minister of Indian and Northern Affairs 

 has not exercised his power to veto Indian fishing by- 

 laws. And a countervailing authority of the Governor in 

 Council (effectively the federal cabinet) under the Indian 

 Act to regulate fishing on reserves, has so far not been 

 exercised. The effect of this imbroglio is that fishing is 

 carried out on some reserves without regard to the Fish- 

 eries Act or its supporting regulations and permit system. 



Sunmiary of legal framework All these develop- 

 ments leave an alarmingly ambiguous and incoherent 

 legal framework for Indian fisheries. Treaties and other 

 historical assurances leave Indian fishermen vulnerable 

 to shifts in fisheries policy that may be imposed on them 

 unilaterally by the government. And the band by-law 

 impasse undermines even the scant opportunity oflTered 



