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CHAPTER 18 



FFDFRAT 



ARRANGEMENTS WITH 



BRITISH COLUMBIA 



The management of the fisheries resource has 

 a serious jurisdictional problem at its very 

 center. Jurisdiction over fisheries by the Brit- 

 ish North American [Act] is federal, while 

 jurisdiction over competing resource users, a 

 prime example being logging, is provincial. 



THE PACIFIC GILLNETTERS ASSOCIATION' 



Repeatedly, during the course of this inquiry-, my atten- 

 tion has been drawn to the interface of federal and pro- 

 vincial responsibilities in fisheries matters. The impact of 

 one government's policies on those of the other has 

 emerged piecemeal in relation to commercial fisheries 

 administration, processing and product regulation, 

 sportfishing, enforcement, enhancement, and most 

 importantly, habitat protection. Altogether, this interde- 

 pendence is crucial to the way fish resources are managed 

 and used. 



Yet explicit arrangements to govern the way the two 

 governments will reconcile their separate and sometimes 

 conflicting interests and responsibilities are surprisingly 

 lacking. This has led to uncertainty, confusion and even 

 suspicion between the two public services, and has 

 resulted also in wasteful duplication of effort, frustrations 

 for third parties and occasional political crises. For these 

 reasons, the absence of a formal working relationship 

 between the two governments has emerged as a most 

 serious deficiency in the existing policy framework for the 

 Pacific fisheries. This has led me to the inescapable con- 

 clusion that a formal intergovernmental agreement 

 between the governments of Canada and British Colum- 

 bia is needed to ensure their activities in fisheries matters 

 are harmonized, duplication of effort is reduced and 

 conflicts are minimized. 



The need to reconcile the policies and practices of the 

 federal and provincial governments was emphasized in 

 my public hearings by participants with interests ranging 

 widely from mariculture to environmental protection, 

 forestry, mining, and resource enhancement. And nearly 



all of those involved in fishing — commercial, recre- 

 ational and Indian alike — expressed concern about the 

 interdependence of federal and provincial authority espe- 

 cially in managing fish habitat. 



The reforms proposed in this chapter could not be dis- 

 cussed with the two governments directly in public hear- 

 ings, since, understandably, they were not disposed to 

 speculate officially and publicly about possible new 

 arrangements and reallocations of responsibilities which, 

 in this country, are normally subjects of political negotia- 

 tion. However, I believe my proposals offer a feasible 

 framework for reconciling the interests of the two govern- 

 ments on a range of important fisheries problems. 



In this chapter I propose a comprehensive agreement 

 between Canada and British Columbia on fisheries mat- 

 ters, clarifying their respective roles, responsibilities and 

 authority in various aspects of fisheries administration as 

 well as their joint working arrangements. The agreement 

 would incorporate existing joint undertakings, most of 

 which are informal, obsolete or based on inadequate 

 documentation. 



None of the recommendations below imply alteration 

 of the existing constitutional division of responsibilities: 

 all can be effected through a contractual undertaking 

 between the two governments in the form of the proposed 

 agreement. 



THE INTERFACE OF FEDERAL 

 AND PROVINOAL RESPONSIBILITIES 



Under the Canadian constitution, legislative responsi- 

 bilities for fisheries are divided between the federal Par- 

 liament and the provinces. In many respects the division 

 of authority, as interpreted by the courts over the decades 

 since confederation, has proved awkward for fisheries 

 management, particularly for regulating fishing, maricul- 

 ture, fish processing and marketing, and for habitat pro- 

 tection. Some of these difficulties have been resolved 

 through arrangements between the federal government 

 and British Columbia, and relatively smooth processes 

 have resulted. For others, such arrangements are infor- 

 mal or altogether lacking, and serious problems have 

 emerged. 



The division of constitutional responsibilities for fisher- 

 ies management is both tangled and subtle. Under the 

 1867 British North America Act (recently incorporated 

 into the Constitution Act 1982), the federal padiament 

 has jurisdiction over "sea coast and inland fisheries." 

 This general authority enables federal regulation of 

 fishing activities in both tidal and nontidal areas of the 

 province, and is the basis for the Fisheries Act and its 

 myriad regulations aimed at commercial, sport and 

 Indian fishing. But as owner of most of the land under- 

 lying fresh watercourses in British Columbia and in vir- 



