THE INDIAN HSHERY 181 



by the permit system for Indians to be involved in fisher- 

 ies management cooperatively with the Department. The 

 resulting uncertainty about the legal foundation for 

 Indian fisheries has left the Indians in an unacceptable 

 position and the Department unable to properly manage 

 the resources. 



A Commission such as this one cannot purport to adju- 

 dicate the legal merits of Indians' claims. That is up to 

 the courts to decide. Nevertheless, it is within Parlia- 

 ment's power to give stronger legal recognition to Indian 

 fisheries, and it is clearly within my mandate to consider 

 the merits of doing so. 



A NEW APPROACH TO INDIAN 

 FISHERIES POLICY 



Indian fisheries policy cries out for reform. I have 

 identified the major shortcomings and frustrations associ- 

 ated with current Indian fisheries policy arrangements; I 

 now turn to my propxDsals for change. (Because the 

 arrangements in Yukon are already the subject of an 

 agreement in principle, described in Chapter 20, my rec- 

 ommendations below apply only to Indian fisheries in 

 British Columbia.) 



My recommendations are guided by my terms of refer- 

 ence that require me to ensure that they are "conducive 

 to proper management and conservation, to an equitable 

 division of the catch among sectors. . . ." In this context I 

 perceive several urgent requirements: to clarify and 

 strengthen Indian fishing rights; to enable Indians to 

 become involved in fisheries management; to provide 

 opportunities for Indians to take better economic advan- 

 tage of their rights to fish; and to improve the administra- 

 tive and enforcement arrangements. 



Securing Indian Rights to Fish 



My investigations lead to the conclusion that the 

 Indian claim to some fish is legitimate and substantial. 

 This has always been acknowledged, though the legal 

 foundation is weak. But apart from the law, Canadians 

 have a moral responsibility to ensure that this important 

 claim on fish resources is respected. It is inconceivable to 

 me that those Indians who entered into treaties more 

 than a century ago would understand, or could have 

 anticipated, the subtleties of the parliamentary and judi- 

 cial systems that could override their bargain with the 

 government. And for the majority who never made such 

 bargains to relinquish their claims to land and resources, 

 the moral case is at least as strong. 



Canadians, and their goverrmients, pride themselves on 

 Canada's cultural diversity. But no culture in British 

 Columbia is as deeply rooted in the fisheries resources as 



the Indians'. No other group in our society seeking to 

 preserve its culture can lay claim to the ancient links that 

 have been forged between the Indians and the fish of the 

 region. 



At the same time, modem policy towards Indian fisher- 

 ies must take account of the other demands on fisheries 

 resources that have developed over the past century, 

 including the large commercial industry and the recre- 

 ational fishery. I propose, therefore, that the Indian 

 claims on fish should not only be acknowledged but 

 should also be made explicit, binding and unequivocal, 

 so that they can be provided for in the context of modem 

 social and economic conditions. To accomplish this, 

 defined quantities of fish must be allocated to Indian 

 fisheries. This will secure the Indian's claim on the avail- 

 able catch and eliminate the legal uncertainty that now 

 surrounds this question. It will also enable the Depart- 

 ment to work toward escapement targets, knowing how 

 many fish will be taken by Indians. So my first recom- 

 mendation is — 



1. The Department should allocate a specific quantity of 

 fish to be available annually to each Indian band 

 involved in the Indian fishery. 



This is consistent with the present (albeit normally 

 unmet) requirement that the quantity offish to be taken 

 must be specified m permits. It is also consistent with the 

 new fishing arrangements for Indians proposed below. 



The quantity of fish to be allocated to each band, and 

 its species composition, should be based mainly on recent 

 levels of utilization, which vary widely among the Indian 

 bands in British Columbia. Other special circumstances 

 should be taken account of as well, such as trends in 

 band populations and their economic opportunities. 

 These should be considered in consultation with the Indi- 

 ans. Accordingly — 



2. The quantity and kind of fish to be allocated to each 

 band should tx^ determined through negotiations with 

 the bands, primarily with reference to tlieir catches in 

 recent years but also taking into account special cir- 

 cumstances relating to population trends and eco- 

 nomic opporttuiities. 



These negotiations should be initiated immediately. In 

 Chapter 17 I propose an Indian fisheries advisory com- 

 mittee for the region, and the advice of this body should 

 be sought in organizing the process. 



These allocations should be given priority over all 

 other fisheries. However, unforeseen events or errors in 

 managing other fisheries may require the Department to 

 constrain bands from taking their full allocations in order 

 to meet the paramount needs of conservation. Whenever 

 this hap|3ens, the Department should be required to com- 



