Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925

Published by EH.NET (July 2009)

Douglas C. Harris, Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925. Vancouver: University of British Columbia Press, 2008. xii + 266 pp. $33 (paperback), ISBN: 978-0-7748-1420-1.

Reviewed for EH.NET by D. Bruce Johnsen, School of Law, George Mason University.

When European explorers arrived on the Northwest Coast of North America (NWC) they found a fairly dense population of Native American tribes whose primary source of wealth was the prolific runs of Pacific salmon that spawned in the countless rivers and streams draining the rugged coastal mountains. So prolific were the salmon runs that early anthropologists viewed the tribes as virtually free from scarcity. Sadly, white mans? diseases were also prolific, ravaging the Indian population in a series of waves ? measles, smallpox, influenza, malaria, dysentery, all took an alarming toll. This left a reduced Indian population, a lot of salmon, and an economic vacuum that would draw in settlers, investment capital, and law from Great Britain.

In his first book, Fish, Law, and Colonialism, Douglas C. Harris (2002) carefully showed how British settlers used English law to wrest the British Columbia (B.C.) salmon fishery from the tribes. This was no mean feat, for tribal chiefs had long held recognized exclusive title to productive salmon streams (larger rivers such as the Fraser, Skeena, and Nass excepted). Lacking the ability to harvest salmon indiscriminately in the open sea ? as our mobile commercial ocean fishery does now ? tribal chiefs essentially held exclusive rights to the salmon stocks that used their streams for spawning. Rather than chasing around after salmon in the open sea, they waited for them to approach or enter their natal streams to spawn before harvesting them, often with fish weirs, a deceptively sophisticated technology that may have allowed them to engage in purposeful husbandry of their stocks.

The B.C. tribes jealously defended their exclusive fisheries against one another and early arriving settlers, and even with a dramatically reduced population they showed themselves quite capable on occasion of using the English legal system to fight off white intrusions. But it was not to be. Magna Carta had given the public a right as against the King to fish in tidal waters and beyond absent legislation by Parliament. Against this legal backdrop the crush of settlement and capital investment was simply too strong. One cannery after another opened along the B.C. coast beginning around 1870, funding an ocean-based commercial net fishery that trumped the tribes? stream-based fisheries. Driven by Canadian fisheries regulators, what was once a system of exclusive tribal fishing rights was converted into an open access commons from which Indians were increasingly excluded. The commercial ocean fishery subject to gear and labor regulations, it is now safe to say, has proven to be a model of inefficiency ? a tragedy of the commons ? as many salmon populations along the NWC have failed, and many more appear on the verge of doing so.

The process by which early settlers used the legal system to wrest the fisheries from the tribes began reasonably enough with the Douglas Treaties. Negotiated by the Hudson?s Bay Company on behalf of the Crown between 1850 and 1854, these treaties involved fourteen purchases of land from the tribes on Vancouver Island, including the present-day sites of Victoria, Nanaimo, and Fort Rupert. The fishing clause in these treaties reserved for the tribes the right to their village sites and enclosures and to their ?fisheries as formerly.? An important inference from the Douglas Treaties is that the Crown conceded the tribes? pre-existing title to their lands. The episode also reveals that the tribes placed paramount importance on their fisheries and fishing rights.

Following B.C.?s entry into the Canadian Confederation in 1871, commissioners for the Canadian Department of Indian Affairs acting under the murky authority of the Indian Act allotted and confirmed Indian reserves numbering roughly 750 throughout the province. In contrast to Indian Reservations in the U.S., these reserves were tiny, as their primary value lay in close access to favored fishing sites. The question Harris addresses in Landing Native Fisheries is whether and to what extent these reserves conveyed to or retained for the tribes the right to fish as formerly, and if so whether this right is exclusive within the foreshore of the reserve.

Much of Harris?s historical analysis carefully documents the ongoing conflict between the Canadian Department of Indian Affairs and its much more politically powerful rival, the Canadian Department of Fisheries. The Indian Act gave Indian Affairs authority to control and manage the ?lands and property? of the Indians of Canada, and, at least in the eyes of the tribes and various government officials, Indian property included the fishing rights associated with their reserves. The Fisheries Act gave the Department of Fisheries general authority to regulate all Canadian fisheries. The issue of conflicting regulatory authority over Indian fishing on reserves might have been resolved in R. v. Charlie (1925), but officials from Indian Affairs declined to pursue an appeal from an unfavorable ruling by an intermediate court, even though the local magistrate had found that Indian Affairs had exclusive authority to regulate Indian fishing on Indian reserves.

Well before R. v. Charlie, the issue of the tribes? title to land and fishing rights had been addressed and re-addressed through the regulatory process. The Joint Indian Reserve Commission, a cooperative attempt by the B.C. Provincial and Dominion governments to resolve the issues shortly after confederation, apparently resolved little or nothing, but the understandings and intentions of various parties is manifest. Indian Affairs and Fisheries followed with conflicting policies and regulations, with the former allotting reserves and the later restricting access to fisheries, largely to whites, and issuing commercial and sport fishing licenses. The regulatory process culminated in 1913 with the Royal Commission on Indian Affairs, whose tepid public report in 1916 affirmed Indian Affairs reserve allotments if and to the extent the grants had been made with proper legal authority. In its confidential report, released years later, the Royal Commission recommended that palpable discrimination against Indians in the commercial fishery should be stopped and that even if the Indian land reserves lacked proper legal authority they should be affirmed out of moral right.

Along the schizophrenic and fitful regulatory path various records were made and kept, in some cases including transcripts of legal proceedings. Harris does a painstaking job of combing through these primary sources to argue that the pattern of ?reserve geography? clearly shows that the reserves were allotted to convey access to traditional fisheries rather than to lands that were otherwise valuable in their own right. He makes a plausible case that Indian Affairs commissioners believed, and the tribes believed, that the reserves conveyed the right to fisheries as formerly, as well as exclusive claim to reserve foreshores. Harris?s analysis includes a careful mapping of all 750 Indian reserves confirmed in British Columbia prior to 1925, apparently as a visual representation of the close proximity between Indian reserves and Indian fisheries. This mapping could conceivably be used to create a database capable of empirically testing hypotheses, either regarding the connection between Indian reserves and Indian fisheries or, perhaps, regarding the political and regulatory process that drove the reserve allotments.

Harris is quite candid about the role he expects his work to play in the current legal and policy debate over Indian title and Indian fishing rights following Canadian Supreme Court rulings under the Canadian Constitution Act (1982) recognizing and affirming ?the existing aboriginal and treaty rights of the aboriginal peoples of Canada.? These cases have led to large land settlements for various B.C. tribes, but access to fisheries and fishing rights remains elusive. Harris?s lamentations that ?colonialism? is, in part, about how European settlers used ?law? to wrest land and fisheries from the tribes seems slightly off the mark, however. Rather than being a failure of law, the entire history strikes me as a failure of the regulatory state. Law and economics scholars sometimes carry a presumption that the law is efficient, and possibly fair. But this presumption applies most forcefully to evolved judge-made law ? rather than to statutory law or regulation ? and to the common law process of stare decisis and appellate review. The ?law? used to divest the tribes of their land and fishing rights was statutory and regulatory, going back to Magna Carta?s declaration of open access to fisheries and continuing through to the Indian and Fisheries Acts and various regulations there under.

Statutory and regulatory law are surely rife with all manner of rent seeking, and few economists would presume these sources of law to be efficient, let alone fair, unless the relevant basis for comparison is a world in which conquering armies slaughter or enslave indigenous peoples. From that standpoint, English law is to be applauded. As I have written elsewhere regarding the resolution of Indian land and fishing rights in the U.S.

… tribes, cultures, nations, civilizations, and their conflicting laws, compete in an open-access commons subject to no higher authority than their own ?representatives,? who are seldom loyal agents for the common good. [The issue is] ultimately about the clash of two civilizations in a practical economic and legal vacuum. One should not unduly fault English law for the ensuing tragedy. English law in the age of exploration asserted sovereignty to newly discovered lands, some think smugly so. But apparently foreseeing the many looming tragedies in advance it also had the good grace to hold that aboriginal peoples retained the right to occupy and use their traditional lands unless formally divested by ?conquest, cession, or purchase.? The ability of a civilization to use its own law to reach beyond itself, even if only in principle, is truly a remarkable badge of enlightenment when seen in the historical context of the clash of civilizations in which losers have often been, and continue to be, ruthlessly exterminated.[1]

This law, evolved over centuries by English judges, was the basis for the Canadian Supreme Court?s affirmation of the B.C. tribes? title to lands, so in some sense the law has finally helped to correct past injustice. Still, the issue of the tribes? rights to their fisheries lingers.

One question Harris addresses is the exact meaning of the term ?fisheries.? Does it simply convey the right to use traditional fishing stations? The exclusive right to use the entire foreshore of the reserve? The exclusive right to manage and harvest the salmon that spawn in a specific stream? The answer is that it depends on the circumstances the tribe in question faced at the time the reserves were allotted. Some tribes, say those who fished along the Fraser River, may have had preferential but nonexclusive access to specific fishing stations, but they certainly had no expectation of exclusive rights to harvest a specific run. At the other extreme are those coastal tribes, such as the Cowichan, who retained rights under the Douglas Treaties to their ?fisheries as formerly.? To them, the ?fishery? may have been the capital asset we would identify as the recurring generations of salmon that make up the ?stock.? With the legal status of Indian fishing rights still cloudy, it may be that a legal resolution of the facts on the ground as to what any particular tribe regarded as its fishery may never occur. An alternative possibility, as I have suggested elsewhere, is that those tribes who received large land settlements negotiate the purchase of exclusive fishing rights in exchange for ceding some of their lands. As Harris makes clear, land was of secondary importance to most of the tribes compared to the value they placed on their fisheries.

Reference:

1. D. Bruce Johnsen, ?The Si?lailo Redux,? The Green Bag: An Entertaining Journal of Law, Winter 2007.

D. Bruce Johnsen is Professor of Law at George Mason University School of Law in Arlington, Virginia. He holds a Ph.D. in Economics and a Juris Doctor degree. He writes on the economics of property rights, generally. In the field of American Indian property rights he is author of such works as “The Formation and Protection of Property Rights among the Southern Kwakiutl Indians,” “A Culturally Correct Proposal to Privatize the British Columbia Salmon Fishery,” and the “Si’lailo Redux”.