The scales of justice or the native claim to the management of reserve fisheries

Native Indian bands in British Columbia continue to assert rights to participation in the West Coast fisheries. Numerous attempts to have legal and aboriginal fishery rights recognised by the courts have failed and pleas to the federal government for political resolution have not yet produced results. Various bands in the province have, over the last few years, been testing in the courts a new means of securing reserve fisheries for themselves. There is a provision in the Indian Act which allows band councils to pass by-laws relating to a number of subjects, among them the "preservation, protection and management of... fish...on the reserve". The provision has been little-used in the past but, recently, by-laws have been drawn which purport to give band councils authority to fully manage their reserve fisheries. The issue is nascent in the courts as by-laws are now being tendered in defence to prosecutions under the Fisheries Act. The predominant argument in defence to the charges is that, where a fisheries by-law is in place, its terms apply to fishing which takes place on the reserve, in precedence to the terms of the Fisheries Act and Regulations. The defence has been given some credence by some courts but has not yet been fully argued. It is an issue which still remains at the County Court level. Still to be determined are the interpretation to be given the enabling provision of the Indian Act and the validity of the by-laws, including the extent to which they might preclude application of the federal Fisheries Act on the reserve. A clear ruling by a higher court would assist bands in determining what value these bylaws might be in securing the control they desire over reserve fisheries. Other factors affecting the value of the by-laws to the natives are the amount of control which can practically be exerted over the resource, given most bands' reserve locations upstream from the sites of the commercial and sport-fishing effort but downstream from the spawning grounds, and the level of fisheries management expertise of the various bands. This paper investigates the potential of band fisheries by-laws to assist natives in their struggle for some control of their fisheries, as well as the implication of these by-laws for other user groups of the fisheries. The historical context of the native Indian fisheries claims is provided, and a description of the current by-laws. Against that background is an analysis of the case law to date. A discussion of the validity of the by-laws reveals their weakness for the intended purpose of excluding the federal fisheries department from any managerial control over reserve fisheries and the necessity for a more viable solution to the problem.Law, Peter A. Allard School ofGraduat