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The scales of justice or the native claim to the management of reserve fisheries Jones-Desjarlais, Jennifer Lynn 1985

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THE SCALES OF JUSTICE or THE NATIVE CLAIM TO THE MANAGEMENT OF RESERVE FISHERIES by  JENNIFER LYNN JONES-DESJARLAIS LL . B . , Queen's U n i v e r s i t y , 1977  A THESIS SUBMITTED IN PARTIAL FULFILLMENT THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES  We accept t h i s t h e s i s as conforming to the required  standard  THE UNIVERSITY OF BRITISH COLUMBIA May 1985 (<p J e n n i f e r  Lynn Jones-Desjarl ai s , 1985  In p r e s e n t i n g  t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f the  requirements f o r an advanced degree a t the U n i v e r s i t y o f B r i t i s h Columbia, I agree t h a t the L i b r a r y s h a l l make it  f r e e l y a v a i l a b l e f o r reference  and study.  I further  agree t h a t p e r m i s s i o n f o r e x t e n s i v e copying o f t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by t h e head o f my department o r by h i s o r h e r r e p r e s e n t a t i v e s .  It is  understood t h a t copying o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l gain  s h a l l n o t be allowed without my w r i t t e n  permission.  Department o f  Law  The U n i v e r s i t y o f B r i t i s h Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Date  DE-6  YVftn  June 2 0 ,  1985  i i  ABSTRACT Native  Indian  bands in B r i t i s h  to a s s e r t r i g h t s to p a r t i c i p a t i o n fisheries. inal and  Columbia  in the West Coast  Numerous attempts to have legal  fishery  rights  recognised  continue  and a b o r i g -  by the courts have  pleas to the f e d e r a l government f o r p o l i t i c a l  lution  have not yet produced Various  securing provision  reso-  results.  bands in the province  few y e a r s , been t e s t i n g  failed  have, over  the l a s t  in the courts a new means of  reserve f i s h e r i e s  f o r themselves.  in the Indian Act which allows  to pass by-laws r e l a t i n g  There i s a  band c o u n c i l s  to a number of s u b j e c t s , among  them the " p r e s e r v a t i o n , p r o t e c t i o n and management o f . . . f i s h . . . o n the r e s e r v e " .  The p r o v i s i o n has been  little-  used in the past but, r e c e n t l y , by-laws have been drawn which purport  to give band c o u n c i l s a u t h o r i t y to f u l l y  manage t h e i r reserve f i s h e r i e s .  The issue i s nascent  in the courts as by-laws are now being fence  to prosecutions  tendered  i n de-  under the F i s h e r i e s A c t . The  predominant argument in defence to the charges i s t h a t , where a f i s h e r i e s  by-law i s i n p l a c e , i t s terms apply to  f i s h i n g which takes  place on the r e s e r v e , i n precedence  to the terms of the F i s h e r i e s Act and Regulations.  The  defence has been given  some credence by some courts but  has  argued.  not yet been f u l l y  remains at the County Court  It i s an issue which  level.  still  i ii Still given  the  validity  to be  determined are  enabling of the  provision  on  the  by-laws, i n c l u d i n g  reserve.  would a s s i s t  the  of the  A clear ruling  in securing  reserve f i s h e r i e s .  the  natives  practically  s i t e s of the  are  the  fisheries for  by-laws to a s s i s t  some control  analysis  of t h e i r  The  byover  value  of  control  resource,  upstream from  the  the but  level  of  various bands.  potential  natives  of band  in t h e i r  struggle  f i s h e r i e s , as well  as  of the  Against that  case law  to date.  by-laws reveals  department from any and  the  problem.  context of the  i s provided, and  intended purpose of excluding  to the  the  historical  claims  by-laws.  v a l i d i t y of the  fisheries  court  the  of these by-laws f o r other user groups of  fisheries.  current  the  they d e s i r e  amount of  of the  be  Fisheries  a higher  spawning grounds, and  paper i n v e s t i g a t e s  Indian f i s h e r i e s the  federal  sport-fishing effort  management e x p e r t i s e  implication the  and  to  extent to which  be exerted over the  commercial  downstream from the  This  and  a f f e c t i n g the  given most bands' reserve l o c a t i o n s  fisheries  by  control  Other f a c t o r s  by-laws to the  which can  Indian Act  bands in determining what value these  laws might be  the  interpretation  of the  they might preclude a p p l i c a t i o n Act  the  managerial  necessity  native  a description  background i s an of  the  t h e i r weakness f o r  the  the  A discussion  federal  control  fisheries  over  reserve  f o r a more v i a b l e  solution  of  i v  i  TABLE OF CONTENTS  INTRODUCTION CHAPTER I  The H i s t o r y of the Native CI aims a) The C u l t u r a l Fish to Indians  CHAPTER II  Fisheries P.  S i g n i f i c a n c e of  b) C o l o n i a l Settlement and the Douglas T r e a t i e s  P  c)  The Reserve Commissions  P. 10  d)  Court  P. 12  History  Band Council  Fisheries  By-laws  7  P  14  a)  Introduction  P  14  b)  D e s c r i p t i o n of Current By-laws  P  16  c) The Requirement f o r M i n i s t e r i a l Approval of the By-laws  p. 25  Case A n a l y s i s  p. 29  a) Regina v. Leech; Regina v. Baker; Regina v. B a s i l  p. 29  b) The Basis in Law f o r the Decision in Regina v. Baker  p. 36  c) Is the Issue of Indian Band By-laws Versus the F i s h e r i e s Act Properly Subject to the Same Kind of A n a l y s i s ?  p. 41  CHAPTER IV  The Legal  p. 50  CHAPTER V  The Experience of the Cowichan Indian Band with F i s h e r i e s By-laws  p. 60  CHAPTER VI  Conclusion  p. 73  CHAPTER III  a)  V a l i d i t y of the By-laws  Weaknesses  in the By-law Scheme  b) D i f f i c u l t i e s Management c)  i n Resource  Recommendations  p. 73 p. 76 p. 78  V  NOTES  p.  82  BIBLIOGRAPHY  p.  88  APPENDICES  p.  89  1 INTRODUCTION  Native asserted usual  Indians  a right  and accustomed f i s h i n g commercial  as f i s h e r y  resources  fishery  the l a s t  Columbia have always  to f i s h without  non-native  and  in B r i t i s h  hindrance  grounds.  in t h e i r  They, along  with  and sport f i s h e r s , have watched have become more and more depleted  r e g u l a t i o n s more and more r e s t r i c t i v e .  two or three decades, Indians  Over  have defended  themselves against a growing number of prosecutions under the F i s h e r i e s Act by various arguments based on claims of t r a d i t i o n a l As w i l l  be e x p l a i n e d , these  failed. while feel  and s t i l l - e x i s t i n g defences  i s o f t e n a sympathetic  that the l e g i s l a t i v e  rights.  have c o n s i s t e n t l y  It becomes c l e a r from reading  there  fishing  the cases  that,  hearing, the courts  and p o l i t i c a l  forum i s the  a p p r o p r i a t e one f o r any s a t i s f a c t o r y r e s o l u t i o n . Politically,  the n a t i v e Indian  become a prominent i s s u e in very  fisheries  recent y e a r s .  a t t r i b u t a b l e to the c o n j u n c t i o n of two major the alarming  d e c l i n e of f i s h e r i e s  salmon, on the West Coast, on  claims has  stocks,  and an expressed  This i s  factors;  particularly willingness  the part of the f e d e r a l government to d i s c u s s  settle-  ment of a b o r i g i n a l claims g e n e r a l l y . The  f e d e r a l Commission on P a c i f i c  Fisheries Policy  was e s t a b l i s h e d in 1981 to i n v e s t i g a t e the s t a t e of the  2  fisheries  resources  recommendations  on the  them.*  The r e l e a s e  advised  what was  "Canada's  West by  Coast  Indian  ment  the  final  clear  Pearse  fisheries, in  the  report  of  many;  at  make  that  the  the  of  the Commission  a crisis  catalogued  including  to  and u t i l i s a t i o n  to  are  and  is,  that  point."2  ills  conflict  of  the  generated  face  of  ever-increasing  government  is  now e x p r e s s i n g  govern-  restri ction. The  ness  to  federal  finally  to  native  of  land  claims;  access  and  aboriginal  to  peoples  of  section  35 o f  order  These  fish and  on the  negotiate  In  March  of  native  rights  of  the  substantive  results  the  willingrespect  broad  questions  self-determination;  the  "The  existing  aboriginal  and c o n f i r m e d " i n 1982.  federal  country's  T h e r e was  government  native  a  to  leaders  in  resolution. the  leaders  with  generally,  of  a  with  resources.  "recognised  part  1983  negotiation  to  political  and w i l d l i f e treaty  very  The C o n s t i t u t i o n A c t ,  to  premiers  issues  i n c l u d e the  e c o n o m i c and  p e r i o d i c a l l y with  country's  outstanding  C a n a d a " were  committment meet  resolve  claims.  and  was,  of  fisheries  Peter  claims  West C o a s t  management  already  Pacific  Commissioner  on the  the  provincial  met  federal from t h i s  premiers  i n Ottawa  government. first  the  process  the  commence T h e r e were  conference  a committment from most  continue  to  and  of  the  but  no  there  provincial  until 1 agreeable  solutions  3 could  be  formulated.3  The second March  of  1984  natives. ment  government  of  ended  In s p i t e  i n the  tived  such  the  conference,  in b i t t e r n e s s of  federal  C o n s t i t u t i o n of ,  the  majority  proposal,  self-government  a native  of  refusing until  the  conference  i n the  support,  support  for  in  the  party the  Special  ment f o r of  native  recognition  were  1983.  In  "First  Department  of  Indian  the  such  third  still  pro-  demonstrates  A Parliamentary was  ordered  1982.5  established  An a l l -  "Second  Report  it,  Committee  a separate  Nations"  of  of  requires  government  the  concept  similar.  amendment  tabled  nega-  and terms  The r e s u l t s  with  Affairs  for  self-  the  support  autonomy.  of  to  to  Commons i n December o f  i n October of  Indian  right  Self-Government  Committee  in  entrench-  premiers  1985  federal  Indian  House o f  recommended  out  greater on  House"  the  the  provincial  Constitutional  vincial  Task-force  of  for  structure  c o u l d be d e f i n e d . 4 spring  i n Ottawa  and d i s a p p o i n t m e n t  support  government  Although  held  the level  to  of  govern-  a gradual  phasing  and  Northern Developer  ment  programmes  ment's  response  introduce in  bands  which to  the  legislation or o t h e r  relate report which  units,  to  their  economic and p o l i t i c a l  would  apply  only  to  to  those  Indians.  was  that  it  would e n a b l e exercise  intended Indian  Nations  The  to  groups,  some c o n t r o l  affairs.  First  The g o v e r n -  over  legislation  who o p t e d  for  4  the  autonomy. The  and  the  7  attempts to s e t t l e  land claims  return of c u t - o f f lands  Columbia are examples of the faith  North  to bands in B r i t i s h  federal  government's good  in these matters. F i s h e r i e s claims  ment and its  in the  here, too,  readiness  are an  the  important aspect  federal  of  settle-  government i s i n d i c a t i n g  to respond to the  claims.  In 1983,  Pierre  de Bane, F i s h e r i e s M i n i s t e r at that time, agreed with the  proposals  greater  part  time, Indian fisheries  of the in the  At  9  fishing  Affairs  aspect  negotiated.  Pearse Report that industry.  sport The  of a b o r i g i n a l claims  basic  and  i s in a serious  t h i s makes any  controversial.  be  salmon-fishing food  fish  for  Right  now,  and  s t a t e of d e c l i n e . s e n s i t i v e issue in  settlement the  the  with the  Indians  f e d e r a l government  very  faces  from a l l user groups f o r i t s a l l e g e d mismanage-  ment of the  resource.  Before examining the  current  e f f o r t s various  in B r i t i s h  Columbia are making to protect  fisheries,  i t will  of the  now  the  It also c o n s t i t u t e s the major commercial  f i s h e r y and  criticism  could  issue p r i m a r i l y i s the  salmon f i s h e r y i s a p o l i t i c a l l y  itself  About the same  8  M i n i s t e r John Munro s a i d that  i n d u s t r y as that c o n s t i t u t e s the Indians.  Indians take a  Indian  claim  be useful to the  to b r i e f l y  f i s h e r y and  their  own  survey the the  bands  basis  h i s t o r y of  5  their  f a i l u r e to convince the courts of the  of t h e i r  claim.  priority  6  CHAPTER I  THE  HISTORY OF  THE  NATIVE FISHERIES CLAIMS  a)  The  Cultural  S i g n i f i c a n c e of Fish  to  Salmon has always been of i n t e g r a l to P a c i f i c  North-West Indians.  major part of t h e i r d i e t and s o c i a l , economic and coastal runs.  It has  Indians importance  formed  the  has also been of great  religious  significance.  L i f e in  communities revolved around the annual Bands would move to r i v e r f i s h i n g  salmon  camps during  the autumn months to harvest the f i s h which would feed them over the winter and with  interior The  also serve as an item of trade  tribes.  salmon ran i n such  r e l a t i v e l y easy matter  abundance that i t was  to gather and  preserve  winter's food supply w i t h i n a short time.  a  the  The  benefit  of such easy access to t h i s d i e t a r y s t a p l e shows in the r i c h n e s s of c u l t u r e which i s a s s o c i a t e d with the North-West Indian groups.  Freed from  Pacific  the n e c e s s i t y of  day-to-day food gathering which c h a r a c t e r i s e d many e a r l y c u l t u r e s , the coastal  Indians had much time  and  sophisticate  their village  and  their social  systems.  sites,  to  develop  t h e i r a r t forms  i0  In t h e i r a p p r e c i a t i o n o f , and  affinity  with,  7 nature,  the  natives  salmon  spirit,  bounty  of  and  they  the  or  the  being,  salmon  salmon  each  honour  and welcome  of  North  beings  which  The f i r s t  year  the  Pacific  Pacific  in great  honoured them.  spawning  the  of  was  fish.  Coast,  North-West held regard.  It  sustained arrival  a matter Philip  explains  of  the of  the  people  the  ceremony  Drucker, it  was  i n the  the  in  to  Cultures  following  manner, Because the salmon were r e g a r d e d as b e i n g s who v o l u n t a r i l y s a c r i f i c e d t h e m s e l v e s f o r the b e n e f i t o f man, i t was i m p o r t a n t t h a t they be t r e a t e d well. A l t h o u g h salmon b e i n g s left t h e i r m a t e r i a l b o d i e s b e h i n d , they were i m m o r t a l , and i f o f f e n d e d , might not r e t u r n the f o l l o w i n g year'. The f i r s t c a t c h o f the y e a r i n i m p o r t a n t f i s h i n g p l a c e s was g i v e n an e l a b o r a t e welcome, so t h a t the salmon b e i n g s would be w e l l d i s p o s e d toward the humans who f i s h e d t h e r e . 11  b)  Colonial  Settlement  The e a r l y of  the  salmon  economic the able  to  settlers  to  the  support.  native  As w e l l ,  for  the  was  a mutually beneficial  the  early primary The  as the  their  canneries  as  settlers  continue with  their  thing. were  Treaties  the  significance  main d i e t a r y  settlers  in f i s h i n g  Indians  fish  Douglas  appreciated  the  as  to  food  the  Indians  proficiency  supply  and  benefited  the as  Indians well.  usual  Encouraging  fishing  on the  from  were  On a c o m m e r c i a l  dependent  and  practices level,  Indians  suppliers.1^ colonists  were  o r i g i n a l l y small  i n number and  8 were s t i l l  v a s t l y outnumbered by native r e s i d e n t s by  mid-nineteenth century. was  However, increased  f o s t e r e d by the B r i t i s h  settlement  government which, in  1849,  leased the whole of Vancouver Island to the Hudson Company on  the c o n d i t i o n that a B r i t i s h  colony  be  Bay estab-  1i shed there. ^ 1  James Douglas, a Chief Factor with Company, had 184 3 !4 and,  in 1849,  moved there  to take  Island.  he was  AJ  By  a l s o appointed  1855,  the white settlement  numbered t h i r t y Douglas was  Hudson Bay from the  with  Indians  1850  thousand.  was  The  still  and  Indians  f o r white s e t t l e m e n t . Douglas concluded  1 7  Between  fourteen  Vancouver Island t r i b e s , mostly in the  The clearly  the lands the  treaties  southern  Indians'  strong  interest  in f i s h i n g  in n e g o t i a t i o n s with  i n s t r u c t e d in t h i s  regard.  After  was them  and  referring  the p r i n c i p l e of compensation to be f o l l o w e d ,  writes,  the  Island.18  a consideration  Douglas was  on  16  i n s t r u c t e d by the Secretary of  1854  Bay  small,  Company, A r c h i b a l d B a r c l a y , to purchase  region of the  to  While Douglas  Governor of Vancouver  numbering under a thousand persons.  years  up the p o s i t i o n  his p o s i t i o n as Chief Factor of the Hudson  Company,  Island  Bay  begun c o n s t r u c t i o n of Fort V i c t o r i a in  of Chief Factor of Vancouver I s l a n d . retained  the Hudson  Barclay  9 The n a t i v e s w i l l be c o n f i r m e d i n the p o s s e s s i o n o f t h e i r l a n d s as l o n g as t h e y occupy and c u l t i v a t e i t t h e m s e l v e s , but w i l l not be a l l o w e d to s e l l or d i s pose o f them to any p r i v a t e person, the r i g h t to the e n t i r e s o i l h a v i n g been g r a n t e d to the Company by the Crown. The r i g h t o f f i s h i n g and h u n t i n g w i l l be c o n t i n u e d to them, and when t h e i r l a n d s are r e g i s t e r e d , and when t h e y conform to the same c o n d i t i o n s w i t h which o t h e r s e t t l e r s are r e q u i r e d to c o m p l y , they w i l l enjoy the same r i g h t s and p r i v i l e g e s . 19 After Douglas  commencing  responded  to  negotiations  with  the  natives,  Barclay  I i n f o r m e d the n a t i v e s t h a t t h e y would not be d i s t u r b e d i n the p o s s e s s i o n o f t h e i r v i l l a g e s i t e s and e n c l o s e d fields, which are o f s m a l l e x t e n t , and t h a t t h e y were at l i b e r t y to hunt o v e r the uno c c u p i e d l a n d , and to c a r r y on t h e i r f i s h e r i e s w i t h the same freedom as when t h e y were the s o l e o c c u p a n t s o f the country.20 And, confirmed  indeed, this.  common w o r d i n g  the  wording of  The terms  of  each  the  treaties  are  similar,  themselves the  being,  The c o n d i t i o n o f o r u n d e r s t a n d i n g o f t h i s s a l e is t h i s , t h a t our v i l l a g e s i t e s and e n c l o s e d f i e l d s are to be kept f o r our own u s e , f o r the use o f o u r c h i l d r e n , and f o r t h o s e who may f o l l o w a f t e r u s ; and the l a n d s h a l l be p r o p e r l y surveyed h e r e a f t e r . It is understood, h o w e v e r , t h a t the l a n d i t s e l f , w i t h these small e x c e p t i o n s , becomes the p r o p e r t y o f the w h i t e p e o p l e forever; i t i s a l s o u n d e r s t o o d t h a t we a r e a t l i b e r t y to hunt o v e r the u n o c c u p i e d l a n d s , and to c a r r y on o u r f i s h e r i e s as formerly.21 This  allowed  self-sufficiency  as  Indians well  as  to to  maintain continue  an to  economic supply  10 food  c)  fish  for  the  The Reserve The  continued joined  policy for  settlers.-  Commissions of  setting  some y e a r s .  Confederation in  the  Indians  and l a n d s  the  federal  government.  aside  lands  for  When B r i t i s h  1871,  reserved  the to  One f i n d s  the  Indians  Columbia  responsibility them was  for  assumed  by  i n the Terms o f  Unionthat The c h a r g e o f the I n d i a n s , and the t r u s t e e s h i p and management o f the l a n d s r e s e r v e d f o r t h e i r use and b e n e f i t , s h a l l be assumed by the Dominion G o v e r n m e n t , and a p o l i c y as l i b e r a l as t h a t h i t h e r t o p u r s u e d by the B r i t i s h Columbia Government s h a l l be c o n t i n u e d by the Dominion Government a f t e r the U n i o n . To c a r r y out such p o l i c y , t r a c t s o f l a n d o f such e x t e n t as i t has h i t h e r t o been the p r a c t i c e o f the B r i t i s h C o l u m b i a Government to appropriate for that purpose, shall from time to time be c o n v e y e d by the L o c a l Government to the Dominion Government i n t r u s t f o r the use and b e n e f i t o f the I n d i a n s on a p p l i c a t i o n o f the Dominion G o v e r n m e n t ; and i n c a s e o f d i s a g r e e m e n t between the two Governments r e s p e c t i n g the q u a n t i t y o f such t r a c t s o f l a n d to be so g r a n t e d , the m a t t e r s h a l l be r e f e r r e d f o r the d e c i s i o n o f the S e c r e t a r y o f S t a t e f o r the C o l o n i e s . 2 2 The so set  far  reserved  aside.  place  agreement  for  to  foresaw the  a transfer  Indians  The a n t i c i p a t e d  and t h o s e  transfer  another s i x t y - s e v e n  of  years23  the still  d i d not D U  lands  t  to take  there  be  11 followed  a s e r i e s of Reserve Commissions e s t a b l i s h e d to  determine  the  Indians' various l o c a t i o n s and  the  they r e q u i r e d f o r t h e i r occupations of f i s h i n g , and  berry-picking.  specifically. covered with  To t h i s end  hunting and  noted  s u c c e s s i v e Reserve Commissioners  the province, v i s i t i n g  with and n e g o t i a t i n g  the numerous bands. The  first  appointed was  These were to be a l l o c a t e d  sites  of these was  in 1876.  reduced  In 1877  1898.  part, completed  by  had  The  1898  but the actual  to be  formulated.  The  Royal  Commission  finalise  Commission  Commissioner and  a l l o c a t i o n was,  still  Columbia was  three-person•Commission  the s i z e of the  to that of a s i n g l e  remained u n t i l  British  a  i t so  f o r the most  terms of t r a n s f e r  f o r Indian A f f a i r s f o r  appointed  in 1913  to attempt  to  the extent of the lands to be t r a n s f e r r e d  and  also to deal with other i s s u e s which remained outstanding between the two  l e v e l s of government.  commonly r e f e r r e d f o r the two throughout  The  commission,  to as the McKenna-McBride Commission,  government r e p r e s e n t a t i v e s , also the province to d i s c u s s l o c a l  number of the f i s h i n g  locations allotted  commissions were confirmed  travelled  needs. by  A  earlier  by the McKenna-McBride  Commi ss i on.24 The to pay  original  Reserve Commissioners were advised  close attention  to e s t a b l i s h e d f i s h e r i e s .  the l e t t e r s of i n s t r u c t i o n  there was  a clear  In  direction  12 not to d i s t u r b the I n d i a n s i n the p o s s e s s i o n o f any v i l l a g e s , f i s h i n g stations, fur-trading posts, settlements o r c l e a r i n g s , which they may occupy and to which they may be e s p e c i a l l y a t t a c h e d . . . . They s h o u l d r a t h e r be e n c o u r a g e d to p e r s e v e r e i n the i n d u s t r y o r o c c u p a t i o n they are engaged i n , and w i t h t h a t i n view s h o u l d be s e c u r e d i n the p o s s e s s i o n o f the v i l l a g e s , f i s h i n g stations, f u r - p o s t s o r o t h e r s e t t l e m e n t s which they occupy i n c o n n e c t i o n with that i n d u s t r y or o c c u p a t i o n .  d)  Court  History  Claims raised Act  aboriginal  in defence  and  its  activities have  of  of  James  without  fear  of  promises  unsuccessful given  riginal  free  some  and the  presented, to  fish  the  as  The  of  has  been  In some  Commissioners  those  instances  or e x c l u s i v e  been  a resounding  statement  may s u p e r s e d e  existence  areas. from  any  the  rights  govern-  singularly  treaty  traditional  that  previous  the  in certain  claims.  accustomed,  r e c o g n i t i o n to rights,  Fisheries  negotiating  argument  of  been  federal  t h e y are  because  courts.  have  Reserve  supportive  and p o l i c i e s ,  i n the  rights,  legislation  under the  prosecution,  fish  the  being  i n any g u i s e s h o u l d be  have  Douglas  as  Indians  mental  charges  rights  accompanying r e g u l a t i o n s .  been a r g u e d  However,  to  fishing  courts  of  abo-  rights  to  However, t h e r e courts  that  earlier  has  federal  secured  by  natives.26 The p o s i t i o n  primary  of  consideration  the is  c o u r t s . c u r r e n t l y is the  conservation  of  that the  the  resource.  13  This was made c l e a r by the Supreme Court of Canada in Jack  et. a l . v. R e g i n a 2 7 which case  number of times Court  level  in B r i t i s h  the court found, an  since.28  i  no  n  e  c a  at the P r o v i n c i a l  Columbia, Regina v. Bradley Bob,29  in the band of which Bob was a member,  " e x c l u s i v e r i g h t " to a f i s h e r y  location  se  has been followed a  at a t r a d i t i o n a l  as a r e s u l t of an acknowledgement by one of the  Reserve Commissions.  It was held, though, that that  r i g h t was not synonymous with  an absolute c o n t r o l  the resource and the f i s h e r y must s t i l l  over  be subject to the  interestsofconservation. The  argument has been made that Indians  r i g h t s which were recognised  by e a r l i e r  which have never been extinguished.30  have f i s h e r y  governments and Today, the f e d e r a l  government t a l k s of n e g o t i a t e d settlement.  With respect  to the c o u r t s , though, as C h r i s t o p h e r Pibus  points out,  a f t e r a decade of court d e c i s i o n s that considered and r e j e c t e d f i s h i n g r i g h t s of every d e s c r i p t i o n and source and c o n s i s t e n t l y i d e n t i f i e d conservation values with the f e d e r a l a u t h o r i t y , i t seems p o i n t l e s s to a s s e r t n a t i v e r i g h t s as a defence to prosecutions under the Fi sheri es Act.31  14 CHAPTER  BAND COUNCIL  a)  FISHERIES BY-LAWS  Introduction It  treaty have  can  be seen  arrangements  been  access  nutritionally defending  fish  with  to  since James  time o f in  the  the  fish  which They  i n the  courts,  r e c o g n i t i o n of  salmon were once  them,  been  and t h e y those  an abundant  Indians  their  sustain have  first  1850,  m a i n t a i n and p r o t e c t  rights  political  the  Douglas  and c u l t u r a l l y .  those  secured The  that  c o n c e r n e d to  traditional  yet  II  both  unsuccessful have  not  rights.  resource,  the  being, in lush y e a r s . . . s o p l e n t i f u l that men were a f r a i d to e n t e r the r i v e r l e s t t h e i r b o a t s be c a p s i z e d by s c h o o l s o f f i s h r u s h i n g t h r o u g h the w a t e r s , 3 2  but  the  salmon  and  mismanaged.  resource  have  the  various  the  need  issue  is  There allows  caused  the  of  dangerously  deal  for of  overfished  a diminishing  controversy  and a h e i g h t e n e d  imperilled state only  i n the  there exists  certain  the  among  awareness  Indian  pass  reserve  fishery,  access,  but  and c o n t r o l  be a f i s h e r y  i n the to  of  guaranteed  management  might  band c o u n c i l s  stration  a great  groups  no l o n g e r  that  been  of  conservation.  participation source  since  Competing demands  user  for  Given  have  for  of  also the  matters,  for  re-  posterity.  Act a p r o v i s i o n  by-laws  the  which  the a d m i n i -  fisheries  being  15 among the enumerated s u b j e c t s .  Specifically,  81. The c o u n c i l of a band may make bylaws not i n c o n s i s t e n t with t h i s Act or with any r e g u l a t i o n made by the Governor in Council or the M i n i s t e r , for any or a l l of the f o l l o w i n g purposes, namely; (o) the p r e s e r v a t i o n , p r o t e c t i o n and management of f u r - b e a r i n g animals, f i s h and The  other  p r o v i s i o n i s not  present  form since  which has  game on  a new  one.  1951.34  reserve;...3 3  It has  existed  However, i t is not  been commonly used by  Columbia.  the  When used in the  band c o u n c i l s  past,  i t has  in i t s a  device  in B r i t i s h  been f o r l i m i t e d  purposes such as, f o r example, a r e s o l u t i o n passed by a band to require non-band members to obtain  permits  from  j  the  band c o u n c i l  before  f i s h i n g on  reserve  lands.  In more recent years there would appear to have been a r e c o g n i t i o n that the instrument to help reserve in  the  natives  fisheries. last  few  by-law could gain  A small  permits before  number purport  stipulation  engaging in  to give  the  t h e i r appointed management personnel  what amounts to t o t a l reserve,  theri  passed by some bands  years have gone f a r beyond the  fishing.  band c o u n c i l and  be a useful  some c o n t r o l over  By-laws drawn and  that non-band members obtain reserve  very well  c o n t r o l of the  f i s h e r y on  i n c l u d i n g h a b i t a t p r o t e c t i o n and  the  anti-pol1ution  provi si ons. The being  validity  tested  in the  to prosecutions The  and  strength  courts  under the  primary contention  of the  in B r i t i s h  by-laws are Columbia  F i s h e r i e s Act  i s that the  and  now  in defence  Regulations.  by-law is a v a l i d  16 statutory  instrument made pursuant to the Indian Act,  a federal  statute.  Ac t is of equal  Being a federal  l e g i s l a t i v e weight to the Fi s h e r i e s Act.  A by-law under t h i s p r o v i s i o n that  s t a t u t e , the Indian  i s of s p e c i f i c  i s , as to subject matter and l o c a t i o n  application;  and should,  t h e r e f o r e , take precedence over the a p p l i c a t i o n of the Fisheries  Act, which i s of more general  reserves where a by-law i s in f o r c e .  a p p l i c a t i o n , on  This,  i t i s argued,  would be in accord with the p r i n c i p l e of s t a t u t o r y i n t e r p r e t a t i o n which would allow two apparently conflicting  statutory  instruments to c o - e x i s t without  r e p e a l i n g e i t h e r one. There have been f i v e  cases decided  since  1982  where the e x i s t e n c e of a band by-law has been r a i s e d as a defence.  The by-laws i n v o l v e d  those of the Squamish  and Bridge River bands.  most recent cases i n v o l v e d Cowichan detail  band.  two d i f f e r e n t  These cases w i l l  but i t w i l l  in the f i r s t  The  two  by-laws of the  be discussed  be of i n t e r e s t  three were  to f i r s t  in some  examine the  nature and content of some of the c u r r e n t by-laws in f o r c e among bands  b)  Columbia.  D e s c r i p t i o n of Current By-Laws In  to  in B r i t i s h  assist  s p i t e of a c u r r e n t  interest  in the use of by-laws  in Indian f i s h e r y management, use i s not wide-  spread  in B r i t i s h  Columbia.  Since the p r o v i s i o n  effect  in 1951, i t would appear from a By-law  came into  Register  maintained by the Department of Indian and Northern  17 Affairs,  that only about  fourteen  fisheries  in e x i s t e n c e , two of those r e l a t i n g vation o f f i c e r s , per s_e.35  the Statutory  to f i s h e r i e s conser-  rather than to f i s h e r i e s  While the by-laws  by-laws are  management  are r e g i s t e r e d  pursuant to  Instruments Act, r e g u l a t i o n makes them  exempt from p u b l i c a t i o n  in the Canada Gazette.36  Texts of the various by-laws, then, are a v a i l a b l e only through the graces of the Department  of Indian and  Northern A f f a i r s or the r e s p e c t i v e band  councils.  r a t i o n a l e f o r the lack of a p u b l i c a t i o n  requirement i s  that a l i m i t e d affected  number of persons are l i k e l y  by the by-law  more recent f i s h e r i e s  although, as w i l l by-laws  The  to be  be seen, the  could have a pronounced  e f f e c t on a l l p a r t i e s concerned with a p a r t i c u l a r f i s hery. There are s i m i l a r i t i e s emerging  among the by-laws and  patterns are apparent.  Squamish band  by-law,  the c u r r e n t by-laws sophisticated  Beginning with the  passed and approved  i n 1977,  are much more comprehensive and  than those of e a r l i e r  years.  Between 1956 and 1965, s i x bands in B r i t i s h Columbia  (the Okanagan; Cowichan;  Moricetown; and B e l l a provision  provision.  Act.37  by-laws  The c l e a r  Stellaquo;  Coola) made use of the by-law  in the Indian  These e a r l i e r  Kispiox;  have very l i t t l e  i n t e n t of the by-laws  substantive i s to c o n t r o l  f i s h i n g on the reserve by non-band members.  The  band's 1956 by-law  group and a  i s r e p r e s e n t a t i v e of t h i s  Cowichan  18 section  s i m i l a r to the f o l l o w i n g appears in each.  That i s ,  No person, other than a member of the band, s h a l l be permitted to f i s h on the reserve without f i r s t o b t a i n i n g a w r i t t e n permit to do so from the person authorized by the Council to grant such permission.38 The B e l l a permits as well  Coola by-law, 1964, r e f e r s to camping as f i s h i n g  town band by-law, 1962. also r e q u i r e s non-band  permits, as does the Morice-  The S t e l l a q u o band by-law, 1960,  members to obtain  permits f o r  hunting on the r e s e r v e . With respect to f i s h i n g , of these s i x e a r l i e s t  i t i s noted that the f i v e  by-laws which were examined a l l  contained a reference which made a p p l i c a b l e on the reserve fishing  r e g u l a t i o n s otherwise a p p l i c a b l e  In other words, the only s a l i e n t to r e s t r i c t  and c o n t r o l  in the province.  f e a t u r e was the i n t e n t i o n  access to the reserve f i s h e r y by  non-band members. No f u r t h e r f i s h e r i e s by-laws were passed u n t i l the Squamish band introduced t h e i r s followed  by the Tahltan  in 1977.  They were  in 1979; the Nimpkish i n 1979  (although the by-law was not approved u n t i l  1981); the  Upper N i c o l a , Qualicum and Bridge River bands  in 1980;  N i t i n a h t and Sheshaht in 1982; and, most r e c e n t l y , the Cowichan  band in 1983.  The by-laws of the N i t i n a h t and the Sheshaht, both of which l i e in the Nanaimo agency, are almost i d e n t i c a l , but d i f f e r Squamish  from the remaining by-laws, of which the  band's  i s the prototype.  d i s c u s s i o n of the v a l i d i t y  There w i l l  be some  of these by-laws and the  19 purported extent us  first  examine t h e i r  The in  of a u t h o r i t y d e r i v i n g from them, but l e t substance.  Squamish by-law, termed By-law #10, states  the f i r s t  section  that  "Squamish Indian Band Waters" means a l l water s i t u a t e d upon or within the boundaries of Reserves set aside f o r the use and b e n e f i t of the Squamish Bandoflndians.39 Fishery o f f i c e r s the  are intended  to be appointed by  band c o u n c i l as enforcement and r e g u l a t o r y  officers  pursuant to the by-law.40 Unlike limited  some of the other  fishing  absolutely  bands, which  allow  by non-band members, the Squamish  prohibits fishing  by other  than Squamish  band members.41 The  substantive  regulatory  p o r t i o n s of the by-  law  r e f e r to the p r o h i b i t i o n of the d e s t r u c t i o n of eggs  and  very  young salmon;42 stream o b s t r u c t i o n ;43 and the  a d d i t i o n of harmful frequented  substances and debris  by f i s h " . 4 4  There i s a s e c t i o n which purports manager the a u t h o r i t y to make extensive all  to "any water  to give the band regulations  aspects of management and conservation  including  h a b i t a t p r o t e c t i o n ; water p o l l u t i o n ; f i s h i n g gear; catch  and possession;  On comparison of t h i s one  f i n d s that a great  scribed  over  v e s s e l s and  and quotas and closed  times.45  by-law with the F i s h e r i e s A c t ,  many of the s e c t i o n s were t r a n -  from the A c t , some with minor changes, such as  power given  to the M i n i s t e r . o f  F i s h e r i e s and Oceans in the  20  F i s h e r i e s Act  being a s c r i b e d  band c o u n c i l .  Thus, the  " f i s h e r y " appear as of the is as  by-law in the  in the  "fish"  F i s h e r i e s Act.  and  Section  , r e l a t i n g to salmon f r y , parr and F i s h e r i e s Act.46  construction  band manager or  d e f i n i t i o n s of  appears in a s e c t i o n of the  "stakes,  to the  8 of the  F i s h e r i e s Act  of fishways.47  posts,  Section  j  n  e  smolt by-law  r e l a t i n g to  placed  for  fishing  purposes" also appears in s i m i l a r form in  Act.48  Sections  in the  Act^9  that  s o  13 of the  very l i t t l e  of the  by-law and,  in  or p a r t i c -  u l a r to that  band.  This  with respect  to the  v a l i d i t y of t h i s type of by-law.  significant fishery.  14 of the  fact will  the  by-law a l l appear  f a c t , nothing of real substance, i s o r i g i n a l  Section  i s the  be considered  to the management of  s e c t i o n which gives  the  authority  to make r e g u l a t i o n s  f u r t h e r to the  The  same p r o v i s i o n appears in the  F i s h e r i e s Ac t ,  34,  with the  power under the Sub-section inland are  fisheries"  provincial  the  resides  (a) of s e c t i o n  references  latory  Act  following  rather  exceptions.  in the 34  The  transportation  34  by-law i n v i t e s challenge  regulatory  r e f e r s to "seacoasts  to l i c e n c i n g and  of f i s h .  power i s i d e n t i c a l .  by-law.  Governor-in-Counci1.  than j u s t " f i s h e r i e s " .  in s e c t i o n  the  band manager  the  section  later  by-law is n e c e s s a r i l y the most  s e c t i o n when l o o k i n g  This  the  requirement to remove  buoys or other materials  10 through  4  and  There  to i n t e r -  Otherwise, the  That p a r t i c u l a r s e c t i o n as to i t s v a l i d i t y  reguof  in re-  lation 81  to  of  the  the  authority  Indian  Act  given  and  it,  a band too,  by  will  way be  of  section  discussed  further. The  "By-law  Management is  virtually  ception waters to  ia  a unit  council 1981,  Fish the  the  on  same a s  in  larger  is  Nimpkish,  to  a  "tribal"  than  band.  the  by-law, not  similar however,  an  and  ex"tribal"  application  Nimpkish  band  approved  by  the  Minister  until  to  that  of  the  make p r o v i s i o n  members  mission  by  the  council.  a further  The  council  imply  1979,  the  non-band  is  by-law.  in  by  by  band  to  passed  and  passed  fishing  There  Squamish  seems  1 9 7 9 , but  again  the  Protection  Reserves",  context,  Nimpkish  in  Preservation,  Tahltan  a reference  which,  The  The  of  for  where  Squamish for  there  provision  band.  on-reserve  is  explicit  per-  that  no p e r s o n o r p e r s o n s s h a l l be p e r m i t t e d to s e l l f r e s h or preserved f i s h , or waste or o t h e r w i s e dispose of f i s h caught in food fishery w i t h i n N i m p k i s h Band w a t e r s .  which  In  1980 t h e  is  identical  The in  Upper  1980, while  carries  a wider  sembles  the  Qualicum to  the  Nicola very  Indian Squamish  Indian  similar  definition  definition  in  band  to  band the  passed  a  by-law  also  passed  by-law. by-law, Squamish  prototype,  of  "band  waters".  It  re-  the  other  by-laws  in  upon  within  that  waters means  all  water  situated  or  band  22  the boundaries of Reserves set aside for the use and b e n e f i t of the Upper Nicola Band of Indians but then adds and a l l areas of land and water which from time immemorial were designated Indian food f i s h i n g waters; more s p e c i f i c a l l y those areas in d i f f e r e n t water sheds, lakes and streams.50 This appears to be an attempt to include o f f reserve waters to which riginal by-law  claim.  the band  believes  i t has  abo-  This r a i s e s the question of whether  the  can have an " e x t r a - t e r r i t o r i a l " , or o f f - r e s e r v e ,  reach. The penalty s e c t i o n s  in the various by-laws are  g e n e r a l l y c o n s i s t e n t with the maximum one hundred f i n e and/or t h i r t y section  days of imprisonment  81(r) of the Indian Act.  provided  that by s t a t i n g a minimum  of two  for a f i r s t  imprisonment stated  dollars  offence  of one to two months.  in the by-law  f o r in  The Upper N i c o l a  has, however, exceeded hundred  dollar  band  fine  and/or  The penalty i s  as "not l e s s than $200.00; and  not more than $100.00", apparently a typographical error.  For subsequent offences the penalty i s s t a t e d as a f i n e of not l e s s than $500.00 and not more than $200.00 Tjagain, an apparent e r r o r ] , or to imprisonment f o r a term of not l e s s than 3 months, and not more than 6 months, or to both such f i n e and imprisonment. 1 5  As the j u r i s d i c t i o n section  to pass by-laws  81 of the Indian Act t h i s  in excess of j u r i s d i c t i o n .  derives  section  from  is clearly  It i s f u r t h e r stated in  23 the  by-law  that  every  band.  As w i t h the  Nicola  allow There  manager that  A c t , 63 which  the  but  goes  N i m p k i s h , the  by p e r m i t  for  non-band  which g i v e s  to  the  authority  Governor  in Council  has  also  a final  clause  Upper  band similar  i n the to  the  members.52  regulatory  is  to  the  the  there  states  forfeiture  and  section  and c o u n c i l  w h i c h the  or  Tahltan  fishing is  fine  to  Fi s h e r i es  the  by-law  that  The Upper N i c o l a I n d i a n Band C o u n c i l , p e r s u a n t ( s i c ) to the I n d i a n A c t may from time to t i m e make r e g u l a t i o n s not in c o n s i s t a n t ( s i c ) with t h i s By-law as t h e y may deem n e c e s s a r y o r a d v i s a b l e f o r the p u r p o s e o f c a r r y i n g i n t o e f f e c t the p r o v i s i o n s o f t h i s B y - l a w a c c o r d i n g to t h e i r t r u e i n t e n t and f o r s u p p l y i n g any d e f i c i e n c y , t h e r e i n a n d , w i t h o u t r e s t r i c t i n g the g e n e r a l i t y o f t h a t power.54 The  Bridge  No.  1-1980  is  the  Squamish  territorial which  are  River  similar by-law.  reach  said  to  in  Indian  Band  Fishing  comprehensive  to,  but  less  It  seems  to  its  attempt  definition  of  By-law  an  band  than  extrawaters,  be  a l l w a t e r s s i t u a t e d u p o n , w i t h i n the boundaries of r e s e r v e s or otherwise f a l l i n g i n t o the j u r i s d i c t i o n o f the I n d i a n Government o r as s e t a s i d e f o r the e x c l u s i v e use and b e n e f i t o f the B r i d g e R i v e r Band o f Indians.55 The ongoing  band  power  council to  also  regulate  in  attempts the  to  give  following  itself  terms:  The Band C o u n c i l may from time to time make r e g u l a t i o n s not i n c o n s i s t e n t w i t h t h i s b y - l a w as t h e y may deem n e c e s s a r y o r a d v i s a b l e f o r the p u r p o s e o f c a r r y i n g i n t o e f f e c t the p r o v i s i o n s o f t h i s bylaw a c c o r d i n g to t h e i r t r u e i n t e n t and  an  24  for supplying any d e f i c i e n c y and without r e s t r i c t i n g the g e n e r a l i t y of that power.56 The Cowichan replaces  Indian  band's new  the 1956 by-law, i s the most recent by-law to  be approved by the M i n i s t e r . only s i n c e 1983. and  "fish  worded  by-law, which  It d e f i n e s  It has been "deleterious  h a b i t a t " and d e c l a r e s , in a very  in e f f e c t substance" broadly  s e c t i o n , that No person s h a l l c a r r y on any work or undertaking that r e s u l t s in the harmful a l t e r a t i o n , d e s t r u c t i o n or . d i s r u p t i o n l o f f i s h habitat.57 L a r g e l y , the by-law i s s i m i l a r to the others  mentioned, although  there are some v a r i a t i o n s .  There i s one other exemplified both  by those  given  They are v i r t u a l l y  c o - o p e r a t i v e management with  Fisheries.  and  the Department of  c o n s e r v a t i o n o f f i c e r who i s  to determine an a l l o w a b l e c l o s i n g s ; and s p e c i f y  statistics  identical  Enforcement and management a u t h o r i t y i s  to a band f i s h e r i e s  fisheries  by-law,  of the N i t i n a h t and Sheshaht bands,  approved i n 1982.  envisage  "type" of f i s h e r i e s  c a t c h ; designate  gear type.  conservation o f f i c e r and " s h a l l  provide  by any  ^federal] f i s h e r i e s  vision  for a joint  openings and  More i n t e r e s t i n g , the  i s to. c o l l e c t any i n f o r m a t i o n  o f f i c e r . "58  catch requested  There i s pro-  management committee, c o n s i s t i n g of  the c o n s e r v a t i o n o f f i c e r  and his a s s i s t a n t s and an equal  number of Department of F i s h e r i e s to "make recommendations  and Oceans  to the Band Council  appointees, concerning  25 the in  fishery". 9 the  Squamish-type  structions, The c l e a r to  take  and  than  them.  are  the  the  Indian  the  only  any p r o p o s e d the  time  review  it  period,  Thus,  the  authority not  have  the  to  the  Legal  is  no f o r m a l  there  is  the  fisheries  by-law it  is  fisheries  expressed  personnel  of  by-laws,  only  by s e c t i o n  certain is to  review  82  days  to  from  him to that  force.60  such a b y - l a w but  also  by  is  the  approval. of  too  the  by-laws  short  properly  M i n i s t e r views Services  81,  a band  approve  within  into  pass  By-laws  section  forty  forwarded  to  the  the M i n i s t e r . o f  disallowed  a band  rather by-laws,  Act gives  is,  b y - l a w comes  of  period  is  is  vein.  Indian  That  ob-  by-law  of  an  seen  protection.  of  aspects  The M i n i s t e r has  the  an o p p o r t u n i t y  practice,  habitat  fisheries  Ministerial  A review of forty-day  river  M i n i s t e r i a l Approval  pass  unless  day  of  all  in this  81 o f  81  forty  the  two  by-law.  circumscribed  or  to  and N o r t h e r n Development must  a section  requirement  over  significant.  and,  relating  Here,  for  power to  Affairs  provisions  The N i t i n a h t and S h e s h a h t  section  Act is  the  Squamish-type  federal  The R e q u i r e m e n t  council  the  control  to work w i t h  While  by-law  management.  exclude  none o f  pollution control  complete  however,  c)  or  of  i n t e n t i o n of  habitat  desire  of  There are  J  the  Department  by F i s h e r i e s  for  indicates  the  view a l l  Minister by-laws.  b y - l a w and for  to In  forwards  comment.  officials,  that  While  there  are  it there  26  meetings at a deputy m i n i s t e r i a l  level  to review the  by-1aws.^ 1 It i s i n t e r e s t i n g By-law  to note from the Department's  Index that, in recent y e a r s , the number of by-laws  which have been r e j e c t e d currently  in force.  i s equal  to the number of by-laws  Except f o r one, a l l of those by-laws  d i s a l l o w e d were d i s a l l o w e d  in 1982 and 1983.  one, the by-law of the Gitwangak  band i s not very  from the Squamish-type of by-laws. r e f e r to a " T r i b a l  different  It does, however,  C o u n c i l " and e i g h t member bands,  r a t h e r than to a s i n g l e band Two i d e n t i c a l  Of these,  council.  by-laws, those of the Toquaht and  Hesquiat bands, were d i s a l l o w e d  i n 1982.  The substance  and tenor of the by-laws are not markedly d i f f e r e n t from those of the N i t i n a h t and Sheshaht bands and, indeed, a l l four of these bands are l o c a t e d  i n the Nanaimo Agency.  The two which were r e j e c t e d , however, make l i b e r a l r e f e r e n c e to " a b o r i g i n a l l y  defined  Reserve grounds and waters." ditional  fishing  territorial  The r e f e r e n c e i s to t r a -  grounds which do not l i e w i t h i n  boundaries and, as such, are a contentious federal  government.  There i s nothing  to suggest that a band c o u n c i l administrative  fisheries  reserve  issue with the  i n the Indian Act  can e x e r c i s e  off-reserve  control.  The Qualicum band attempted to have a by-law approved which would have repealed t h e i r but the attempt was u n s u c c e s s f u l . would have a p p l i e d  to " t r a d i t i o n a l "  1980 by-law  The proposed by-law band waters without  27  limiting  those  terms  enforcement,  of  similar  to  Fisheries vehicles  those Act:  controlling  with  also  the  is  the  of  exception  operative"  type  since  has  particular  search  the  of  authority  a power o f  last  Indian  scope  1980  powers  obstruction  of  of  the  the  is  manage  are,  81,  is  not  the  only  Cowichan  should  be n o t e d  it  b y - l a w would review  it  be,  an e f f i c a c i o u s after  them?  then,  means  i n mind  in f o r c e ,  What e f f e c t  have  is  passed  by-  that  the  face  of  However, "co-  by-law  approved  And, in the  been  it,  that  by-law reviewed  difficult had i t  to  gone  say  through  procedure.  control  keep  of  clear.  that  period.62  forty-day  are  creation  thei r-fishery-,  by-law.  the  by-laws  the  one way o f  other  within  one must  private  fisheries  on the  having  sought  and  Department  or without  Can  enter  majority  "by d e f a u l t " ,  a customary  the  buildings,  N i t i n a h t and S h e s h a h t  by-law,  it  to  proposed  the  the  two y e a r s  view o f  section  been  case,  the  been  under  a band  passed  whether  to  In  have  over  arrest  of  of  efforts  c u r r e n t l y being  the  officers  disallowance  over  it  the  would  fisheries  and  wilful  the  or whether  is  the  proposed  beyond  is,  powers  reserve.  officer.  Whether  by-laws  that  of  conservation  laws  granted  There  a charge  bounded by the  proposed  and v e s s e l s ;  property. of  to w a t e r s  that  for over the  fisheries  Indians their  to  gain  ministerial  the  the  fisheries?  what e f f e c t  should  by-laws  veto  will  courts  the  give  could  be  much Certainly  but,  where  courts them?  give And,  28  practically, fishery within  is  there  resource the  least  reserve  charges  four  The which was cases  so  what  upon  can  to  serve  fishery vation tations  of  events  only  what  to  been  raised  in defence  in to  the  formed  a  cluster  only other  point.  The c a s e s  and a t h o r o u g h to  understand  might  natives  vehicle  is  for  two are  examinot  only  be e x p e c t e d  in  whether  by-law  the  use  the to  future  which  it  is  put.  to  discussion illuminate  claims; vis  cases  attempt  also  be an a p p r o p r i a t e  A fuller will  decided  with t h i s  The i n t e r e s t  now b e i ng  manage a  Act.  one w i t h a n o t h e r  necessary  have  Columbia  in arguing  dealing  but  ably  control  by-laws  British  F i s h e r i es  drawn  happened,  cases.  in  three  far  is  earlier,  first  inconsistent nation  the  to  to  boundaries?  courts  under  capacity  by a t t e m p t i n g  As m e n t i o n e d at  the  ct v i s  of  the  those  management  of  the  fourth  many a s p e c t s  difficulties claims;  and  by way o f  a  of the  and  of  the  fifth  Indian  resource practical  by-law.  cases  conserlimi-  29  CHAPTER  CASE  a)  Regina The  law  v.  it  are  is  not  to  entirely  or  Regulation  received  reasoning  of  cisions to  examine The  Judge case  the  Gordon of  Columbia  Fishery  Regulations  Bridge  v.  of  R i v e r band  but  the  to  so  recent  decided  so  far  see  give  the  if,  when,  Fisheries  same  The f a c t s  if  It  future  effect  to  Act  argument  argument  be o u t l i n e d .  to  by-  is  over the  Basil  fisheries  in explaining  has  and  will  been apparent  be  judicial the  de-  by-laws,  decisions.  was 1983,  handed down by H i s at  Lillooet,  a member o f  the  a breach  section  (General)  While  M r . Leech  cases  v.  Honour  B.C.,  in  the  Walter Leech.  sockeye,  which  the  interpreted.  of  the  precedence  will  Regina  prosecutions  cases,  decision  with  waters.  permit,  bases  of  Virtually  in order  Leech,  possession tidal  cases  on May 12,  Regina  charged  and  be e x p e c t e d  first  Mr. was  the  then,  can  courts  that  take  in a l l  variously  Baker;  fisheries  provisions.  advanced  important,  v.  satisfactory  how a b y - l a w might  been  the  surprising  or  has  in  federal  not  ANALYSIS  Regina  appearance  defence  that  Leech;  III  of  aware o f  would have  or  River  5(2)  Regulations,  pink,  had not  Bridge  of  provision  allowed  obtained  had had a b y - l a w  the  which  chum salmon  the  Indian  British  prohibits  from n o n in  him a food  such  the fish  a permit.  in effect  band,  since  The 1980,  30 as  has  been  previously  of  Mr. Leech t h a t  conservation Fisheries  scheme  over  The c o u r t  a  equal  view to  held was  that  within  the  so  the  was  that  reserve the  application  found  the  legislative if  they  the  could, and  area  the  should  did  by-law t a k i n g  effect the  It  was  where  consistent  with  the  view  that  The Fi s h e r i es A c t i s one o f g e n e r a l a p p l i c a t i o n to a l l p e r s o n s . Its p u r p o s e o b v i o u s l y , i s to manage and p r e s e r v e f i s h e r y stocks w i t h i n our own sea c o a s t and i n l a n d fisheries. The I n d i a n A c t a p p l i e s to I n d i a n s and t h e i r B a n d s . It i s not o f as b r o a d an a p p l i c a t i o n as the F i s h e r i e s Act. I t s p r o v i s i o n s , so f a r as t h e y a r e not i n c o n s i s t e n t w i t h the F i s h e r i es A c t , must be r e a d as s u b j e c t to t h a t s t a t u t e ' s provisions.64 The c o u r t could  not  lations. does  be  found t h a t  said  Rather,  to  the  be more  "the  Bridge  specific  B y - l a w shows  v i r t u a l l y n o t h i n g to  regulate  River than  that  of  fishing  it  Regulations.  i t i s c l e a r t h a t the b y - l a w c a n n o t displace p r o h i b i t o r y F i s h e r i e s Act R e g u l a t i o n s which a r e o f g e n e r a T application. N e i t h e r can the b y - l a w d i s p l a c e the e f f e c t o f t h o s e p r o v i s i o n s i n the F i s h e r i e s A c t R e g u l a t i o n s w h i c h r e g u l a t e how a c l a s s o f p e o p l e s h a l l be e x c e p t e d from t h o s e g e n e r a l p r o h i b i t o r y p r o v i s i o n s . 63 is  to  them w i t h  However,  This  the  take  Regulations  and examined  than  behalf  particular  than  could c o - e x i s t .  restrictive  on  Regulations.  b y - l a w and the  they  argued a more  by-law  of  authority  determining  more d e t a i l e d  It  by-law c o n s t i t u t e d  Regulations  precedence  be o f  the  described.  by-law the  Regu-  itself within  it the  31 designated the  waters".65  b y - l a w which  running  control  And, in reference  seemingly of  the  gives  the  fishery,66  it  to  band was  the  section  council said  of  a  that  In f a c t , the B y - l a w p u r p o r t s to a u t h o r i z e the Band c o u n c i l . . . " t o make r e g u l a t i o n s f o r the p r o p e r management and c o n t r o l o f the f i s h e r i e s and r e s p e c t i n g the c o n s e r v a t i o n and p r o t e c t i o n o f f i s h . " No such r e g u l a t i o n s , h o w e v e r , have e v e r been p a s s e d . F u r t h e r , i t would a p p e a r t h a t t h i s i s an a t t e m p t by the Band to c o n f e r upon i t s c o u n c i l an a u t h o r i t y to e n a c t l e g i s l a t i o n o t h e r than i n a c c o r d a n c e w i t h s e c t i o n 81 and 82 o f the Indian A c t . At b e s t , the B y - l a w i s a s t a t e m e n t o f i n t e n t i o n to adopt l e g i s l a t i o n f o r the p u r p o s e s m e n t i o n e d . In e f f e c t , t h e r e i s no r e g u l a t i o n o f the f i s h e r y w h i c h emerges from t h i s particular By-law.67 Mr.  L e e c h was The  Eugene the  convicted.  second  Baker,  case  decided  H o n o u r a b l e Judge  case and  the  accused  pleaded,  band  by-law, Mr.  fishing  was  was for  in  non-tidal  in  contravention (General)  that  of  catching  from  non-tidal  (General)  to  the  pink  of  Regina  v.  i n V a n c o u v e r by 3,  1983.  In  Squamish  charges,  with  salmon  without  the  this  Indian  band  Squamish  section  and  having  waters  of  5(2)  Regulations.  the of  two c o u n t s ,  in  the  40(1)  of  River, was  count  River,  British  of  allegedly  B r i t i s h Columbia  possession  Squamish the  the  This  The second  in his  one  Squamish  a licence.  Regulations.  section  the  that  described. charged  of  on June  a member o f  waters,  Fishery  to  Sheppard  already  Baker  p o i n t was  i n County C o u r t  in defence  by net  contrary  on t h i s  was  pink  salmon  allegedly  Columbia  Fishery  32 Although defence,  the  the  defence  mistake  of  fact  accused  had been  apparently or  at  as  would  section  of  the  to  fish  "at  of  rockets,  on-reserve  at  The c o u r t fact  of  course,  would in  take  the  was  only  it  was  that  over  circumstances. of  the  in precedence  merely et.  refers  al .  where  v.  Then,  the  the  that  ratio  are  was Baker's  permissive allows  members  by the or  use  shells".68  not  he had  had been one  entitled  M r . Baker  In a r r i v i n g a t to  find  the  Fisheries  Act  Regulations  the  the  by the  takes  it  entirety  of  the  court's  sectionrof  little  application  defence, from  "it of  Falardeau  that  must the  case  be  that,  seen  if  other".70 respect  Act, after  Regulations  of  The c o u r t  comment w i t h  Fi s h e r i e s the  is  Regulations.  a qualification  the  point,  by-law  inconsistent,  vis  to  the  cited and  that  of  that  as  charging  Mr.  whether or  read  by-law v i s \  the  that  over  Church,69  be  it  except  "mistake"  supporting  one c a s e  two s t a t u t e s  one c a n n o t  to  to  If,  U n f o r t u n a t e l y , there  discussion by-law  the  charges.  precedence  the  though  projectiles, to  is,  time.  necessary  the  as  the  on-reserve,  band b y - l a w , which  materials,  the  the  be  by the  and by any means  held  of  to  of of  That  which,  area.  covered  and law and t h a t  be a c q u i t t e d  law.  a location  fishing  been  explosive fact  of  he b e l i e v e d  Squamish  of  thrust  c o n c l u d e d i n terms  mistake  at  the  had been o n - r e s e r v e ,  have  any time  The m i s t a k e  mixed  fishing  location  activities  been  against  a traditional  that  b y - l a w was  argument  off-reserve,  least  argued,  Squamish  were  finding clearly  33 in  conflict  with  section  6 of  the  by-law,  was  as  follows:  My i n t e r p r e t a t i o n o f the two s e t s o f regulations i s t h a t the I n d i a n Band b y - l a w i s e f f e c t i v e w i t h i n the boundaries o f the R e s e r v e and t h a t the a p p l i c a t i o n o f the F i s h e r y A c t ( s i c ) and regulations i n a c a s e where a p r o p e r l y d r a f t e d and e n a c t e d I n d i a n Band b y - l a w i s i n e x i s t e n c e c e a s e s at the boundary o f the r e s e r v e i f the two are i n c o n f l i c t . T h u s , I come to the c o n c l u s i o n t h a t i f the appellant had been f i s h i n g i n w a t e r w i t h i n the boundary o f the R e s e r v e , he would have been p r o t e c t e d from the c h a r g e s l a i d by the by-law.71 The His  third  Honour Judge  1983,  Regina  v.  accused,  the  in  Baker  the  R.  v.  porting the  above  Roger  at  Matsqui,  Steven  stated  but  Basil  that  faced  it  is  was  court B.C.,  Basil.  not  decision  by  October  26,  In a c q u i t t i n g  the  applying  evident  the  reasoning  from a r e a d i n g  section  of  salmon  limit,  roe  the  in his  Basil,  Bridge  26(1)  salmon  of  contrary Mr.  the  5(2)  to  of  it  was  a place  the  was  below  and  a band  of  the  allowed  member,  by the the  boundary,  fishing  a  contrary an  amount  stated  Regulations. was  by p e r m i s s i o n  that  the  having of  7(1)  caught  waters,  in excess  37.1(1)  argued  section  Regulations;  Regulations;  not  to  trans-  salmon  from n o n - t i d a l  reserve,  on a day when f i s h i n g Consequently,  of  section  River  to  contrary  bringing  possession  while  unlawfully  a licence,  boundary  section  and. r e t a i n i n g  counts:  unlawfully  a commercial to  four  without  Regulations;  to  on  a provincial  Friesen  court  salmon  contrary for  was  case. Mr.  of  case  of  band  fishing  fishing the  Chief,  council. was  lawful  34 pursuant  to  the  Mr.  Basil  was  Act  Reg uI a t I on s.  not  This R.  v.  was  Leech  Leech  and  that  the  to  band w a t e r s  an  intention case  decisions.  In h i s  relevant  by-law  and t h a t  the  the  did  by-law,  the  regulatory,  the  court  contradiction  was  after  This  Is  clear one  that  looks  the  except those  Act  there to  see  Baker.  Squamish by  stated  provisions  net-fishing salmon  and  notable  In of  with  In  a a  the  conflict provision  because Baker, must  first  which it  referred  to  the  two  earlier  fishing  to  express  Although  the  In r e f e r r i n g said  between a  that  the  between  the  was  not  Leech case  as  to  the  Baker  "again  the  court  Regulations  Band  which  in  by-law  to the  view  of  future.  that  the  Judge  Gordon's  conflict  in  both  H i s Honour  regulatory  any  of  Fisheries  considered  Judge  referred  Is  the  only  stating  it  therefore  appeared  find  found.  o u t l i n i n g Leech.  concerned  Fisheries  not  been  was  of  not  by-law  and  of  reasons,  was  in Ba s iI  had  was  Honour  in  court  and  case  His  regulate  as  portions  River  Regulations  if  by-law  In B a s i l  to  by-law  provisions  court  the  Bridge  band  the  same  He r e c o g n i s e d  In  Leech  subject  the  cited  decisions.  River  the  and Baker  Friesen  Bridge  Council  under  the  By-law".72  Bas i I p r e f e r s ,  makes  be c o n f l i c t i n g p r o v i s i o n s  It  before  governs.  was  specifically  by-law,  permitting  prohibited  means,  stated band  clearly  that  section  members  6  to  fish  conflicted  with  of t h e R e g u l a t i o n s  which p r o h i b i t unl i c e n c e d  non-tidal  and  from n o n - t i d a l  waters  waters.73  possession  of  pink  35 Basil  does  not  succeed  conflict.  As s t a t e d ,  offences.  Without  charge,  the  however, the to  be  general  for  off-reserve.  and must the  says  salmon to  only  was  the  and  an argument  on-reserve,  might  studied  other  see  is  made  River by-law,  section  if  they  it  is  to  waters.  if  can  override That  that  can  the  cases each  stand  refers  The o t h e r of  salmon  salmon  1 awful 1y be  the  each  must,  transportation  be a n t i c i p a t e d ,  to  vi s & vi s  5".74  that  four  which  are taken Baker  provision'  compatibly  with  legislation.  Reference Bridge  it  similar  with  "By-law  if  in non-tidal  B_a_sjJ_ f o l l o w would i n d i c a t e be  the  specific  a  charged  by-law  that  possession  While  caught  off-reserve  examining  sufficiently  relate  lawfully  Mr. B a s i l  p r o h i b i t i o n in Regulation  fishing  charges  court  in d e l i n e a t i n g  in  the  to  and  following  just  that  one  is  to  section  of  the  a general  permissive  terms:  Band members and n o n - b a n d members s h a l l be p e r m i t t e d to engage i n f i s h i n g upon B r i d g e R i v e r I n d i a n Band w a t e r s , as s h a l l be p e r m i t t e d by the B r i d g e R i v e r Indian B a n d . 7 5 T h e r e was by-law. Baker,  The c o u r t "which  Regulations held  that  conflict goes  no m e n t i o n o f  holds  under  the with  4 "is  that  the  by-law those  considerably  section  stated  any o t h e r  that such  it  of  the  farther  regulatory  Act".76  only  Act or than  in  choosing  a B y - l a w can  Fisheries applied  was  provision  where  Baker, its  in  character,  its  the  follow  displace however,  provisions  Regulations.  that  to  of  Basi1  decision  and as  such  that is  36 sufficient  to  inoperative That  is,  entire  render  within  on the  operation  of  h e l d suspended  b)  The B a s i s  of  its  Court for  in  1972.  damages  cattle.  Baker  that  of  British  The p l a i n t i f f s to  Statutes  did  cited, the  crops  governing  statute,  of  the  state  Columbia  l a n d was  not  located  the  township  had p a s s e d  Municipal runn i n g a t  A c t to  deal  to  with  trespass  it  suing  trespassing in  conflict. that for  lawfully  fenced.  plaintiffs-  land  was  o f The  impounding o f  unlawful  on p r i v a t e  The p l a i n t i f f s  provision  i n The T r e s p a s s  law remedy o f  damage f o r  in  displaced  township's  the  v.  animals  1arge.  township.  place,  the  al.  damages  a b y - l a w under a u t h o r i t y  The b y - l a w made cattle  i n which  relied  Act, stipulated  cattle  However,  it  et.  l i a b i l i t y were  to o b t a i n  the  outline  c a s e were  no r i g h t  if  Baker  Supreme  defendant's  The T r e s p a s s  v.  that  Falardeau  a l a n d o w n e r would have trespass  the  Regulations  clearly  in that  by the  by-law,  i n Regina  d i d not  but  the  boundaries.  Decision  reasoning  case  done  A provincial  v.  of  Reserve".77  A c t and  reserve  the  Regulations  Indian  section  Fisheries  within  Ac t  River  one  the  decision  a  Bridge of  i n R.  on a p a r t i c u l a r C h u r c h , 78  Fi s h e r i es  i n Law f o r  The c o u r t process  the  basis  was  the  the  was  by-law.  or  for  public  contended, A c t which trespass  by the  The c o u r t  any p e r s o n  abrogated  section  with  the  the  that  the  the common  when a l a w f u l  agreed  allow  land within  therefore,  relevant  to  fence of  was  the  plaintiffs  37 and,  in doing  so,  Baldrey Court the  of  v.  relied Fenton,  that  a provincial  statute,  In  that  in  regard,  statutory Baldrey  the  trespass  property, for  the  fallen  value  has  the  the  the to  of  the  Act which p r o h i b i t e d  on  their  open  be o f  a size  straying in  passed made run  to  premises.  the  suit,  unlawful large  that  the  Wells  Act in  found  that  the  on and  the  of  basis  assumed  the  not  risk  In  cited  section  from  having  w h i c h would  a hazard  to  stock  to  that,  a section  of  a by-law  Municipali ties  suing  a  Contrary  the  and  raised duly  Act which  than  plaintiff  the had  The p a r t i c u l a r  his  of  operation  breached  plaintiff of  case,  defendant's  persons  other  Act.  of  that  died.  municipality  had  the  by-law. the  the  much s u p p o r t i v e  ousts  defendant  that  was  dogs,  to  municipality.  so  A c t and  statute.  by-law  excavations  animals,  particular  the  the  allow  by-law  the  The Open Wei 1s provision  to  is  was  The R u r a l  within  The c a s e sition  to  or  constitute  the  pursuant  it at  w h i c h might  upon  defence  wells  authority  a  In  plaintiff  The Open Wei 1s  for  The T r e s p a s s  and  of  property  the of  statutes.  well,  Supreme  a situation  onto  it.  authority  force  that  to  the  township's  strayed  horse,  of  under  involved  an open  cited  on as  passed  all  also  had  into  of  decision  conflicting  horse  cases  relied  equal  Fenton and  plaintiff's  was  Falardeau,  weight  v.  1914  a by-law,  of  animal  a  S a s k a t c h e w a n ,79  proposition  given  on e a r l i e r  knew  horses  the  the of  as  propo-  The Open  the  court  provision  of  breached  the  c a s e was  decided  well  straying  existed  and  falling  38  into  the  well.  Bishop Columbia  v.  Court  Li den, of  a  Appeal ,80 O  the to  same c o u r t by the  1929  in  decision  of  and G l a d y s z  the  v.  British  Gross,  from  1  1945,  were  court  in  Falardeau,  Bishop  v.  Liden  two o t h e r again  cases  dealing  referred  with  animal  trespass. In which  disallowed  trespass  that  (included to  were n o t each  fence  section  provincial  Act)  an a c t i o n  by c a t t l e  by a l a w f u l  was  run at  section  for  where the was  again  a section  statute, i n the  the  which  repugnant,  but  It  damages  The T r e s p a s s arising  p r o p e r t y was in issue.  of  the  not  of  was  could  'cattle'  be  that  read  from  In o p p o s i t i o n  Anima 1s  held  Act  surrounded  A c t , also  prohibited allowing  definition  large.  of  a  swine  i n The the  to  two  Trespass statutes  in c o n j u n c t i o n with  other. The o b j e c t o f the An i m a l s A c t was to r e g u l a t e the r u n n i n g a t l a r g e o f domestic animals. The L e g i s l a t u r e had i n view the c o n d i t i o n s o f the c o u n t r y . Some a n i m a l s i n c l u d i n g swine were not to be a l l o w e d to run at l a r g e a t a l l ; o t h e r a n i m a l s were a l l o w e d to run a t large. A g a i n s t the l a t t e r owners o f o f l a n d were bound to f e n c e and i f damage were done because o f the u n f e n c e d c o n d i t i o n o f the l a n d i n j u r e d , the owner o f the c a t t l e was not r e sponsible therefor. It was a s p e c i a l Act d e a l i n g with a s p e c i a l condition. P r o p e r l y c o n s t r u e d , s e c t i o n 14 o f the T r e s p a s s A c t i n no way c o n f l i c t s w i t h the A n i m a l s A c t . It m u s t , I t h i n k , be h e l d to c o n t e m p l a t e t r e s p a s s on u n f e n c e d l a n d by c a t t l e which might u n l a w f u l l y run at large.82 The c o u r t  l o o k e d at  the  purpose  of  the  enactments,  39  as  well  the  as  the  w o r d i n g on the  sections.  the  It  was  a matter  Gross.  Again,  involved, Pound  to  the  this  that  it,  the  in  construing  general  yielding  to  within Pound  time  fence'  doing  animal.  held  that,  there  land,  of  the to  in  Gladysz  Trespass  sections  was  to  A c t to  so  on a p r o p e r  The c o u r t  in  v.  A c t was  of  the  over  the  Falardeau  Saskatchewan  Court of  the  situation  Falardeau  It  is  important  Falardeau certain  court  the  went  as  the  far  locality  is,  specific an e n t i r e  was  the  say  where  analysis  provisions. act  be  Act by  run a t  by a lay  the  large.  any damage c a u s e d  Bishop of  them.  v. the  Again,  Liden two  by  and  statutes  the  specific  general. also  referred which was  to  a case  similar  from  to  itself.  note  that  i n each  r e l y i n g on,  provision to  for  Appeal  circumstances,  gave way to so  to  Trespass  to  construction between  surrounded  prohibited  animals  followed  not  the  was  liable  the  in  it  allow  The c o u r t  preferred  with  and  would be  no c o n f l i c t  be  although  in accordance  District  such  That  decision  in opposition  a pound d i s t r i c t  Anyone  the  the  District Act.  'lawful  was  was  same s e c t i o n  The p l a i n t i f f ' s  in  of  of  specific. Subsequent  in  face  the  the  cases  result  was  provision  i n one  statute  general  another  act  i n each  instance  or  In no c a s e was  displaced.  the  the  in another.  that  of  None o f  the  cases  act; d i d  not  apply  b y - l a w was  it  that,  in  surrounded suggested  force. two that  40  However, stating  a reliance  That flow  that  is  finding  on the  a very  from the  statement  graph  the  in  cases  Fa 1 a r d e a u ,  just  after  described.  So I c o n c l u d e t h a t the L e g i s l a t u r e , in g i v i n g m u n i c i p a l i t i e s power to pass b y l a w s , i n t e n d e d t h a t The T r e s p a s s A c t s h o u l d not o p e r a t e w i t h i n the a r e a s to which m u n i c i p a l bylaws a p p l i e d . The M u n i c i p a l A c t and the bylaws p a s s e d t h e r e u n d e r do not r e p e a l The T r e s p a s s A c t . They c o u l d not i n view o f the f a c t t h a t the L e g i s l a t u r e i n e n a c t i n g s. 1 4 ( 1 ) , s a i d t h a t i t was to p r e v a i l "any law to the c o n t r a r y n o t withstanding". But the e n a c t m e n t s can be r e a d t o g e t h e r on the f o o t i n g t h a t The T r e s p a s s A c t s i m p l y does not a p p l y to l a n d s t h a t f a l l w i t h i n the scope o f the b y l a w . 8 3  ;  not  note  earlier  must  following,  broad  it  s t a t e m e n t which cases  be  read  is  stated  and,  even  in context  simply in  for,  does  Falardeau, i n the  para-  that  The p o i n t i s t h a t the p r o v i s i o n s o f the T r e s p a s s A c t , r e s t r a i n i n g the exercise of that common-law right t o i a n a c t i o n f o r t r e s p a s s , do not a p p l y here b e c a u s e the e n a c t m e n t o f the bylaw has l i m i t e d the a p p l i c a t i o n o f the T r e s p a s s A c t . 4 The o n l y those the  meaningful  particular  by-law  relevant  Compare holds  the  where  there  of was  the  band is  of  this  the the  the  operation  the  Trespass  with  the  case  of  the  within  conflict  its  Act or  without  Regulations.  benefit  of  be  that,  in  section  of  otherwise  Act.  conclusion  between  can  relevant  by-law e f f e c t i v e  F i s h e r i es  stated  of  circumstances,  suspends  section  reading  the  i n Baker reserve  provisions That  detailed  which boundaries and  those  conclusion examination  41 one  sees  That of  i n Falardeau  and the cases  i s , there i s no e x p l i c i t  on which i t r e l i e d .  advertence  to the purpose  the by-law as opposed to the purpose of the F i s h e r i e s  Act, and the substance  of the by-law, other than  the one  broadly worded s e c t i o n which gives v i r t u a l l y u n l i m i t e d fishing  c)  privileges  to band members, r e c e i v e d no a t t e n t i o n .  Is the Issue of Indian Band By-laws Versus the F i s h e r i e s Act Properly Subject to the Same Kind of  Analysis? It w i l l  be argued that w h i l e , at a f i r s t  the case of Falardeau to  the f i s h e r i e s  the cases  reading,  v. Church might be seen to apply  by-law i s s u e by a p a r i t y of reasoning,  are not s u f f i c i e n t l y  analogous to lead one to  the c o n c l u s i o n that a by-law should apply on a reserve to the e x c l u s i o n of the F i s h e r i e s A c t . A  Note that in Falardeau  Bishop  v. Liden and Gladysz  d e a l i n g with  very s p e c i f i c  spective c i v i l  provincial  v. Gross the courts were issues:  that i s , the r e -  remedies of p l a i n t i f f  s i t u a t i o n s of animal of  v. Church, Baldrey v. Fenton,  and defendant in  trespass and c o n f l i c t i n g  sections  s t a t u t e s or by-laws made pursuant to  provincial statutes. There was never any question validity  of any of the acts or by-laws.  were d i s c r e t e two to  raised  The s i t u a t i o n s  i n the sense that i n each there were only  interested liability  as to the  p a r t i e s and i n each the d e c i s i o n , r e l a t i n g  and damages, would not have an e f f e c t which  would reach beyond the two p a r t i e s  to the s u i t .  It i s  42  the w r i t e r ' s  view  very  nature,  require  they  have  been  First, the  enabling  the  ambit  the  fisheries  registered  does  it  is  as  assure  by the  by-law  is  that  on  reserve.  the It  is  81.  not  through  fisheries, the in  subject results  of  that  their than  is  of  the  by-laws  between  at  the  prior  the  to  from the  the  true interpreted  the  by-laws of  the  through  the  that  That  are  control  of  can  one  possible is,  it  is  parties  in  claiming entire for  fisheries,  solely  kind  p l a i n wording  individual  to  completely  by-laws,  and the  being  Crown.  be  whether  Disregarding  is  to  least  expressed  c l a i m to  issue  within  many s e c t i o n s  Indians  a right  resource.  Act.  A c t be d i s p l a c e d  What the is  Indian  at  still  to  management"  a number o f  construing  aboriginal  what  are  relation  and t h e i r  u p h o l d i n g them.  by-laws  of  are,  validity,  be drawn  damages  a public  question mind  of  of  in  The b y - l a w s ,  intention  can  situation.  their  and  questionable  in properly  a question  a private  protection  Fisheries  of  practical  fall  l o o k i n g at  the  authority  the  to  duplication  overriding  ignore  by  analysis  the  by a M i n i s t e r o f  their  Upon  A c t , that  Nor,  said  and a p p l i c a b i l i t y  Fisheries  section  be  81 o f  instruments  reviewed  courts.  the  by-laws,  be examined  section  reserve?  statutory  not  clear,  should  in question  on the  construction by the  by-law  "preservation,  theoretically, This  fisheries  a more c o m p r e h e n s i v e  legislation,  by-law  of  the  afforded.  Can each of  that  the and  statutory  moment keeping  authority,  43 it  is d i f f i c u l t  application  that  stream  i s , the migratory nature of salmon, and the  Indian reserves are g e n e r a l l y  control  are taken  serve waters,  c e r t a i n l y many  p r i o r to the entry of the runs the band, at that  over the s t o c k s .  Falardeau was the only case r e f e r r e d  not the only f a c t o r conflicting It  the s p e c i f i c  over the general i s  f o r c o n s i d e r a t i o n when c o n s t r u i n g  i s intended to d i s c u s s two of the other cases to the courts i n a l l three of the  fisheries  by-law cases and then  reasoning  i n Leech, as f a r as i t goes,  that  to suggest  that the  i s to be p r e f e r r e d  i n Baker and B a s i l .  The  case of Old Kildonan M u n i c i p a l i t y  Winnipeg, a 1943 d e c i s i o n was c i t e d  of the Manitoba  i n support of the accused's  v. C i t y of  King's  position.  Bench, 5 y  A reading  the case, however, makes i t c l e a r that one i s to con-  s i d e r a l l the c i r c u m s t a n c e s , and the f a c t is  and, on l o o k i n g  statutes.  which were r e f e r r e d  of  to by  those cases, one sees that that p r i n c i p l e of con-  s t r u c t i o n which a p p l i e s  to  into r e -  stage, has absolute  the c o u r t i n Baker other cases were c i t e d at  that a band has  i t s own waters to  upstream.. Although  ultimate control While  located down-  i t i s obvious  of escapement beyond  the spawning ground  and  By the very nature of the  of spawning grounds,  complete  fish  a r a t i o n a l e which would support the  of the by-law.  r e s o u r c e , that fact  to f i n d  general and one i s p a r t i c u l a r  ilydeterminative.  that one s t a t u t e  i s not of i t s e l f  necessar<  44 The Kildonan  issue  in that case was whether the Old  M u n i c i p a l i t y had the a u t h o r i t y  to tax a p u b l i c  g o l f course which, although p h y s i c a l l y w i t h i n the boundaries of the m u n i c i p a l i t y , was owned by the C i t y of Winnipeg.  The C i t y Charter  owned by the c i t y ,  exempted from tax land  lying outside  the t e r r i t o r i a l  limits  of the c i t y , and used f o r p u b l i c park purposes. The qualified  Court f i r s t  as a " p u b l i c park" w i t h i n  C i t y Charter. provisions land  i n c l u d i n g r e v i s i o n of municipal  Finally,  i n 1940, the Winnipeg Charter  to s p e c i f i c a l l y  include  the land w i t h i n  boundaries and, at the same session same property  was s p e c i f i c a l l y  the Municipal  Mun i ci pal Old  city  a part of  That was included in  Boundari es A c t , which was c h a r a c t e r i s e d as  a c t d e a l i n g with many m u n i c i p a l i t i e s . question  was whether the amendment to the  Boundaries A c t , which put the g o l f course i n  Kildonan,  had the e f f e c t of r e p e a l i n g  exemption given  to park lands  f u r t h e r , of r e p e a l i n g within  was  of the L e g i s l a t u r e , the  named as being  the m u n i c i p a l i t y of Old Kildonan.  The  legislative  from 1912 to 1940 which v a r i o u s l y a f f e c t e d the  boundaries.  a general  the meaning of the  It then examined s u c c e s s i v e  in question,  revised  determined that the g o l f course  city  the tax  owned by the c i t y o r ,  the s t a t u t e s which put the land  boundaries.  It was not determinative  that the Municipal  Boundari es Act had been the l a s t was i t determinative  s t a t u t e passed, nor  that one s t a t u t e was more  general  45 than the other. able by  city's  ordinary  property  had  Charter  limits  allowed  not  pality  land was  the court  i t to hold  been s p e c i f i c a l l y  included  land  ever attempted  city;  to 1943,  to assess  the  Waugh and a 1948  be taken where c o n f l i c t Esquimalt  British  was  i n s p e c t o r the logging  road  which was  of the  Forest Act  power to enter  upon and  already  municitaxes.  being  look  interpre-  v.  that of Pedneault,  Columbia Court of  whether use  land" in a s e c t i o n of the  and, i t  must  e x i s t s was  Lumber Company Limited  d e c i s i o n of the  There, the question  outside  land f o r  at the circumstances to see what reasonable can  considered  no  Another case c i t e d which i n d i c a t e s one  tation  tax-  in c e r t a i n  boundaries of the  unimportant t h a t , from 1912 had  not  f o r park purposes; that the g o l f course  statutes defining legal was  that the  the m u n i c i p a l i t y of Kildonan,  that the its  In holding  Appeal.  term  "any  gave a logging expropriate  a  used by another  logging  operator. It was intended logging  held that the  that a stranger road  L e g i s l a t u r e could  should  a c t u a l l y in use  another's logging  and  8 6  acquire  not  a right  have in a  thereby i n t e r f e r e  operations.  The L e g i s l a t u r e cannot be presumed to act unreasonably or u n j u s t l y , f o r that would be a c t i n g against the p u b l i c ....That i s why words in an Act of the L e g i s l a t u r e are not r e s t r i c t e d to what are sometimes c a l l e d t h e i r " o r d i n a r y " or " l i t e r a l " meaning, but are extended f l e x i b l y to i n c l u d e the most reasonable meaning which can be e x t r a c t e d from the purpose and object  with  46  o f what i s s o u g h t by the s t a t u t e . 8 7 In  the  the  was  that  be  court  It cases  is  Baker  one  the  exclude on  parties  by the  court,  the  cases  with  situations.  That  it  follows  are  animal  is  a case  of  Co.  operator discern  involves  against  Of Leech to  i n the  situations the  looks  the  general  The comment i s ment  that His  could  have  the  first at  the  the  three  scheme  extensive  a b y - l a w c o u l d not Honour effect  Judge  right  Gordon  on r e s e r v e s  but  of  logging to  conflicting looking to  by-law c a s e s , b y - l a w and  there  the  it  a clear  only  were more  it  Act. state-  Fisheries  that  at  remedy.  relates  Fisheries is  suggested  cases  Esquimalt  attempted  the  two  in  the  one  attempting  displace  if  between  Old K i l d o n a n  especially,  of  should  very  and  interpreting  was  the  a  lead  Regulations  and Waugh and  cases  of  r e l i e d on  conflict  trespass;  fisheries  purpose  at  Falardeau  in  the  by-laws  conflicts  The c o u r t s  legislation  regulatory not  is,  intention  of  A c t and  discrete  statutory  trespass  reading  necessarily  operate  taxation;  another.  legislative  provisions, the  municipal  reading  not  civil  individual  of  a literal  Fi s h e r i es  evident,  cases  quite  and a p p a r e n t l y does  involving  Lumber  and  given  and  band f i s h e r i e s  the  dealing  unjust  a careful  that of  accomplished  so.  least,  Note t h a t  level,  do  defence  at  operation  reserve.  to that  conclusion  the  specific  section  declined  presented  to  the  suggested  by the  be  circumstances,it  unreasonable and  to  Act.  a by-law specific  47 in  i t s regulation  suggested  than  that t h i s  reading the Act and  the F i s h e r i e s Act.  i s not an unreasonable by-law so they might  There i s a q u a l i t a t i v e  difference  type of s i t u a t i o n which arose cases and presence  It is  in the  way  co-exist. between the  "animal  trespass"  the type of s i t u a t i o n which a r i s e s of a band f i s h e r i e s  by-law.  of  in the  It i s s i g n i f i c a n t  t h a t , by the very nature of i t s s u b j e c t - m a t t e r , type of by-law has is,  this  "extra-territorial" effects.  That  i t i s aimed p r i m a r i l y at the salmon resource which,  of course, i s migratory.  In almost  a l l cases, the  Indian reserves are l o c a t e d down-river  of the salmon  spawning grounds, and', f o r that reason, there i s a theoretical  ultimate control  reserve l o c a t i o n  of the resource at the  i f the by-law o b j e c t i v e of e x c l u d i n g the  o p e r a t i o n of the F i s h e r i e s Act i s s u c c e s s f u l . one  examines the l a t e s t  fishing  by-laws with t h e i r  permissive  c l a u s e s , the p r o v i s i o n s d u p l i c a t i v e of the  F i s h e r i e s Act and  t h e i r s e c t i o n s which purport to  empower the band c o u n c i l  to pass  r e g u l a t i o n s on an  going b a s i s , there can be no doubt that the i s to completely Act and  When  exclude  Regulations on  consideration  intention  the o p e r a t i o n of the  reserves.  that the f e d e r a l  on-  Fisheries  It i s a v a l i d  policy  government a l r e a d y has a  r e g u l a t o r y system in p l a c e . Even at the f i r s t f i n d i n g a prima  stage of the i n q u i r y , that of  facie c o n f l i c t ,  the reasoning of His  48 Honour Judge Gordon in Leech i s to be p r e f e r r e d to that of His Honour Judge F r i e s e n in B a s i l . Bridge Basil day  River by-law, no c o n f l i c t made a f i n d i n g  when f i s h  River  Indian  could band.  On the face of the  arises.  The court in  that the accused caught f i s h on a be taken,  8y  i t s e l f which s p e c i f i e s  by permission  There i s nothing  of the Bridge  i n the by-law  open or c l o s e d times so that  there  must have been a r e l i a n c e on a r u l e of the c o u n c i l which was  made outside of the a u t h o r i t y of the by-law.  plain  reading of the by-law, then,  On a  t h i s c o n s t i t u t e s an  e r r o r and, as the court was d e a l i n g with  the same by-law  as was r a i s e d i n the Leech case, one would expect the matter to have been ended on the basis that there were no conflicting  p r o v i s i o n s before  the c o u r t .  Even i f the Baker case i s c o r r e c t in holding a p r o v i s i o n of a by-law could  take  precedence over a  p r o v i s i o n of the F i s h e r i e s Act or the R e g u l a t i o n s , still  faced with  cases  simply  where there will  one i s  the n e c e s s i t y of e n q u i r i n g , in every  i n s t a n c e , whether or not the r e l e v a n t p r o v i s i o n s The  that  cannot be read  so broadly  conflict.  as to say t h a t ,  i s a by-law in f o r c e , the F i s h e r i e s Act  not apply w i t h i n With respect  reserve  to c o n f l i c t ,  g e n e r a l i t y , i t could be argued  boundaries. and s p e c i f i c i t y  over  i n many instances  that  the p r o v i s i o n i n the Fi s h e r i es Act i s more s p e c i f i c in nature  than a corresponding  example of t h i s  by-law p r o v i s i o n .  i s found i n Baker.  A good  The s e c t i o n of the  49  Squamish  band by-law which was  F i s h e r i e s Act Regulation was  said  to supersede the  a g e n e r a l l y permissive  s e c t i o n , a l l o w i n g band members to f i s h restriction. prohibiting restricts be read  almost without  It could be argued that the r e g u l a t i o n fishing  by net i s more s p e c i f i c  the method of f i s h i n g .  in that i t  The two p r o v i s i o n s could  in c o n j u n c t i o n so that net f i s h i n g would c o n s t i t u t e  an exception  to the f i s h i n g  The s e c t i o n can be read  "by any means" of the by-law.  that way without  doing harm to  the sense of e i t h e r . In terms of the p r a c t i c a l not band f i s h e r i e s  question of whether or  by-laws take precedence over the  F i s h e r i e s Act, Baker i s c e r t a i n l y not d e c i s i v e . validity  of the by-laws i n general  which courts w i l l by Baker.  The  and the extent to  honour them are questions  not answered  50 CHAPTER  LEGAL  Two cases  so  different far  a challenge In  each  by-law had  of  Its  the  the  duly  three  only  the  In  is  be open  scope  the  of  opinion of  argument  in o p p o s i t i o n us  council  of  among o t h e r management on  the  it  also  things, of  of  exclusive  enabling  the is  "the  the  this right  type to  does the  to  recognise  sanction. it  receives.  ground t h a t  many o f  the  stand  section  to  make  it  existing  against  and, of  the  bestow  81  itself.  by-laws  protection  fish  management  resource  and  validity.  animals,  not  the  Statutory  on the  preservation,  preservation  that  approval  wording of  administration  there  legislation.  empowered  Although  was  approval  court  would not  their  three  by-laws.  fact  the  the  writer,  part,  fur-bearing  denotes for  to  a band  reserve".  stration by-law  return  for  challenge  to  the  ministerial to  the  cases  no l e g i s l a t i v e  the  in  of the  ministerial  the  i n whole o r  The  has  to  by-laws,  Let  examined,  pursuant  the  these  either  sufficient  however,  sanction  A b y - l a w must exceeds  cases  of  had r e c e i v e d  A c t was  i n v o l v e d in  In none o f  registered  A by-law,  were  validity  in question  been  OF THE BY-LAWS  by-laws  discussed. to  Instruments it.  VALIDITY  IV  and o t h e r  denotes  in this  and game  control,  case,  resource. an a b s o l u t e  itself.  for,  admini-  A and  51 Note included as  that  in  taken  than with  discrete, measures  It  spawning  effect users  fishery  over  the  the  to  later, imparts  of  boundaries  This  is  fish  "on the  allows  sites  not,  on t h a t  cannot  be  result  management.  the  last  attain  particular  the  potential  strictly Theo-  prevent  would  escape-  be e l i m i n a t i o n river.  so  broadly  as  is  drafted  into  by-law.  band c o u n c i l s  few y e a r s  the  all  to  Rather,  to the  it  function.  complete  Many o f  words,  read  of  to  an  unrestricted  particular  type  that  a  reserve".  virtually  al1-encompassing  an a d m i n i s t r a t i v e  to  then,  could e n t i r e l y  and the  runs  In o t h e r  which  i n the  is  resource.  role  by-laws  of  af  the  ultimate  legislative  of  situation  of  a band c o u l d have  81(o)  The goal  such  boundaries  runs  to  Here,  beyond r e s e r v e  of  of  apply  on the way  entire  on r e s e r v e  the  entire  consider-  through a reserve  a band which  Section  the  the  animals,  measures  would  The e f f e c t  to  and  are  pass  resource.  cycle  reserve  the  game  different  Any r e g u l a t o r y  analogous  in a given year  embrace  entirely  game on the  management  retically,  that  fish.  where  grounds.  of  to  and o t h e r Game b i r d s  confined within  not  likely  speaking,  ment  to  be  is  reaches  fishing  subject  migratory  would  are  control  are  limited populations.  anadromous river  animals  same s u b - s e c t i o n .  regard  reserve.  of  the  a resource,  ations  fur-bearing  is  which  clear,  have  passed  however,  and e x c l u s i v e  newer p r o v i s i o n s ,  and  fisheries by  necessary  52 implication, sections  reach  relating  particularly or  of  logging  frequented must off  to  be  the  or  if  reserve  are  an is  rather  than  the  that  the  basis.  It  section  of  but  It  would not successful the  to  appears  such  of is  is  restricted  appear  to  of  the  the  be  any  by-laws  also  Fisheries  legal  by-law.  newer  by the  newer b y - l a w s  demon-  management band and  the  make  regulations  which  causes  band manager  Squamish  is or  on an band  council Oceans.  validity  upon  the  on-  i n b r i n g i n g an  controlled  in  on o r  a band  A similar  of  water  water"89  reach  Act sections  of  any  either  purview of  intent.  the  confer  into  Act.  substances,  "into  jurisdiction  i n terms  authority first  deleterious debris  The  habitat,  eventually  Department in  fish  operations  Fisheries  concern to  of  many s e c t i o n s  provision  council  as  within  by the  purports  to  Indian  would be  boundaries.  flows  might  the  envisaged,  greatest  which  apply  exclusionary  scheme  The  to  party fact  of  that  and t h e r e  duplicative  strates  or  by the  mechanism which  The  deposit  Yet,  area  off-reserve  protection  deposits  sites.  reserve  land-clearing  intended  circumscribed to  to  by f i s h ,  reserve  reserve  beyond  by-law  The Band manager may m a k e ' r e g u l a t i o n s f o r c a r r y i n g out the p u r p o s e s and p r o v i s i o n s o f t h i s b y - l a w and i n p a r t i c u l a r , but w i t h o u t r e s t r i c t i n g the g e n e r a l i t y o f the f o r e g o i n g , may make regulations: for  the  proper  management  and  band  on-going  14:  (a)  that  53 control  As  noted  which  fisheries;  (b)  respecting protection  (c)  r e s p e c t i n g the c a t c h i n g , l o a d i n g , landing, handling, transporting, p o s s e s s i o n and d i s p o s a l o f f i s h ;  (d)  respecting vessels;  (e)  r e s p e c t i n g the and e q u i p m e n t ;  (f)  r e s p e c t i n g the o b s t r u c t i o n and p o l l u t i o n o f any w a t e r s f r e q u e n t e d by f i s h ;  (g)  respecting protection  (h)  p r e s c r i b i n g the powers and d u t i e s o f p e r s o n s engaged o r employed i n the a d m i n i s t r a t i o n o r e n f o r c e m e n t o f t h i s b y - l a w and p r o v i d i n g f o r the c a r r y i n g out o f t h o s e d u t i e s and p o w e r s ;  (i)  a u t h o r i z i n g a p e r s o n engaged o r employed i n the a d m i n i s t r a t i o n o f t h i s b y - l a w to v a r y any c l o s e d time o r f i s h i n g quota t h a t has been f i x e d by the regulations.90  earlier,  respects,  of  this  identical  empowers  the  to  the c o n s e r v a t i o n of f i s h ;  the  operation use  of  and  of  fishing  fishing  gear  the c o n s e r v a t i o n and o f spawning g r o u n d s ;  section  is,  section  34 o f  Governor in  in a l l the  Council  material F i s h e r i es  to  pass  Act  such  regulations. There  is  very  that  a provision  band  council.  delegatus  It  of  likely this  almost  non p o t e s t  type  The maxim  is  not  principle  but  certainly "a  a rule it  argument  exceeds  delegare,  delegate". a rigid  a strong  is  of  the  offends delegate  to  be made  authority the  maxim  may not  construction  of  and  re-  54  g e n e r a l l y a p p l i c a b l e to any form of sovereign power and operates to prevent one government body endowed with l e g i s l a t i v e f u n c t i o n s by the s t a t e from t r a n s f e r r i n g i t s d e l i b e r a t i v e f u n c t i o n s to another body or o f f i c i a l . Phrased c o n v e r s e l y , i t means that p o l i t i c a l power can be exercised only by those who are r e s p o n s i b l e i n law f o r i t s execution. In terms of municipal law t h i s means that, in the absence of express s t a t u t o r y a u t h o r i t y , a municipal c o u n c i l , as the r e c i p i e n t of delegated a u t h o r i t y i t s e l f , cannot assign to an o f f i c i a l or any other agency any l e g i s l a t i v e or d i s c r e t i o n a r y power vested i n i t . " * David Mullan, states  i n h i s d i s c u s s i o n of the t o p i c  t h a t , i n c o n s i d e r i n g whether a d e l e g a t i o n of  a u t h o r i t y can be i n f e r r e d from the l e g i s l a t i o n , the courts w i l l  look  to f a c t o r s such as;  the nature of the a u t h o r i t y on whom the power was o r i g i n a l l y c o n f e r r e d , the nature o f the person to whom the purported d e l e g a t i o n has been made, the nature and extent of the power possessed by the o r i g i n a l a u t h o r i t y and the c o n d i t i o n s upon which i t can be e x e r c i s e d , the extent of the d e l e g a t i o n i n r e l a t i o n to the t o t a l power and the c o n t r o l s and c o n d i t i o n s imposed by the o r i g i n a l d e c i s i o n maker on the e x e r c i s e of power by the delegate. In g e n e r a l , the more important the power, the more l i k e l y i t i s that the courts w i l l hold that i t cannot be delegated and must be e x e r c i s e d by the person or a u t h o r i t y named i n the empowering statute.^2 In l o o k i n g again  at the empowering l e g i s l a t i o n f o r  the  by-laws one must have regard  and  82 o f the Indian A c t .  f o r both s e c t i o n s 81  55 81.  The c o u n c i l of a band may make b y - l a w s not i n c o n s i s t e n t w i t h t h i s A c t o f w i t h any r e g u l a t i o n made by the G o v e r n o r i n C o u n c i l o r the M i n i s t e r , f o r any o r a l l o f the f o l l o w i n g p u r p o s e s n a m e l y : (o)  In  conjunction  that of  a copy  section  the  band  things,  with t h i s  of  any  the  is  fisheries is  council  the  has  which  of  fisheries  to  build  the  approval  Total  by-law in  could  the of  With  lying  a position  whatever In  the to  deposit  initial  some c a s e s ,  but  among  to  all  discretion  delegate  rule-  to for  band  to  power  it  may  such  as  w i t h the  the  of  every  the  operation  by  attempting  effectively  the  band  regulatory  imparted  Minister,  the  encompasses  relate  passed  The scope  Naturally,  is  other  approval.  virtually  section  given  any b y - l a w  by-law,  an o n - g o i n g  authority  regulatory  authority  band manager.  M i n i s t e r is  further  authority  for,  Squamish  requirement  M i n i s t e r , who  ministerial  i n the  w i t h the to  to  by-law  the  82  the  the  reserve,  reserve.  the  to  by-laws  conceivably  on the  regulatory  manager.  make  w i t h the  covered  into  section  The s t a t u t o r y  on the  attempted  subjects  aspect  to  14 o f  authority  the  forwarded  subject  By s e c t i o n  making  be  by-law.  council  by a c o u n c i l  is  b y - l a w made under  81 must  may d i s a l l o w  the p r e s e r v a t i o n , protection and management o f f u r - b e a r i n g a n i m a l s , f i s h and o t h e r game on the reserve.  mechanism,  by-passed.  the  band  approving council band  is  the not  manager  have. Cowichan b a n d ,  the  56 council  gives  itself  the subsequent r e g u l a t o r y  power.  T h i s , too, i s arguably  invalid  Ministerial  Beyond t h a t , i t i s doubtful  council  approval.  itself  has the f u l l  in i t s circumvention  range of r e g u l a t o r y  of that  (legislati  power to which i t a s c r i b e s . Case law d e a l i n g with the extent authority  of a band c o u n c i l ' s  under s e c t i o n 81 of the Indian  Act i s minimal.  Some i n s i g h t can be gained, however, by reviewing the few  relevant  cases.  Regina v. G i n g r i c h was a 1958 d e c i s i o n of the appellate  division  of the A l b e r t a  There was an appeal of the Indian band c o u n c i l reserve had  Supreme Court.93  from a c o n v i c t i o n under s e c t i o n 30  Act f o r t r e s p a s s i n g  on a reserve.  The  had a requirement that anyone going on the  must f i r s t  been v i s i t i n g  obtain  a permit.  the reserve  A missionary  who  f o r many years was twice  denied a permit when the band's permit system f i r s t came i n t o use. section  The band c o u n c i l  had the power, through then  80(p), to make by-laws f o r "the removal and  punishment of persons t r e s p a s s i n g frequenting interest  the reserve  upon the reserve or  f o r prescribed  purposes". Of  i n t h i s case i s that the court  band c o u n c i l  could  not, in e f f e c t , define  by contending that anyone on the reserve issued  permit was t r e s p a s s i n g .  definition  held  of trespass  common law d e f i n i t i o n  that the  trespassing without a band-  In the absence of any  i n the Act the court and, as the m i n i s t e r  looked had been  to the  57  invited other  to  attend  occasions,  powers  were  wording  of  the  nature  and  Council  case  recent  the  case of  is  Labour  council.  a band  Board  the  The band  manage c e r t a i n  Court of  On an the  application  reserve  jurisdiction relations In nature ment o f twelve  would his  of  project,  of  the  the  band's by  the  Indian  the  Band  1982 x  n  e  of  a  regarding  Whitebear into  and  certain  Northern reserve,  reserve. to  arguing  a  a  review  on the  represent  council  federal  The e l e c t e d  counci11ors  of  band  as  was  Appeal.94  the  on  Saskatchewan  had e n t e r e d  Mr. J u s t i c e  council  of  decision  over  by a u n i o n  under  decision,  Canada.  Board  on the  the  comments  Mhitebear  judicial  programmes  S.L.R.B.,  fall  band  for  Department  some c o n s t r u c t i o n  its  Saskatchewan  council  Affairs  including  The  Council  S.L.R.B.  w i t h the  on  of  Relations  of  for  council.  Provincial  agreements to  and many  circumscribed  useful  Saskatchewan  jurisdiction  band  that  trespassing.  i n v o l v e d an a p p l i c a t i o n  Saskatchewan the  not  on  subsection.  Relations  of  reserve,  be n a r r o w l y  Carpenters  Labour  decision  to  function  v.  the  he was  held  A more  and  on  carpenters  objected  that  the  legislative  to  labour jurisdiction.  Cameron commented  "creature"  officials  of  the  the  - a chief  on  the  Parliaand  -  are i n t e n d e d by P a r l i a m e n t to p r o v i d e some measure - even i f r a t h e r r u d i m e n t a r y o f l o c a l government i n r e l a t i o n to l i f e on I n d i a n r e s e r v e s and to a c t as somet h i n g o f an i n t e r m e d i a r y between the  -  58 band and  the  M i n i s t e r of Indian  Affairs.  More s p e c i f i c a l l y , s e c t i o n 81 of the Act c l o t h e s Indian band c o u n c i l s with' such powers and duties in r e l a t i o n to an Indian reserve and i t s i n h a b i t a n t s fas^ are u s u a l l y a s s o c i a t e d with a r u r a l municip a l i t y and i t s counci1 .... Hence , a band c o u n c i l e x e r c i s e s - by way of d e l e g a t i o n from Parliament - these and other municipal and governmental powers in r e l a t i o n to the reserve whose i n h a b i t a n t s have e l e c t e d it In summary, an Indian band c o u n c i l i s an e l e c t e d p u b l i c a u t h o r i t y , dependant on Parliament f o r i t s e x i s t e n c e , powers and r e s p o n s i b i l i t i e s , whose e s s e n t i a l f u n c t i o n i t i s to e x e r c i s e municipal and government power - delegated to i t by Parliament in r e l a t i o n to the Indian reserve whose i n h a b i t a n t s have e l e c t e d i t . 9 5 The  Quebec Court of Appeal  indication  of the j u d i c i a l  of a band c o u n c i l and  The  prohibition judges had  on  the  given  view of the  in a t h i r d  Queen^S i n v o l v e d  has  an  case.  Re  were members of the  Caughnawaga Indian  and  inhabitants.  The  reserve  appellants  exception  Criminal  in the  Indian  the  jurisdiction  Act  by  appellants The  things, from the  reserve  following  that, pro-  made an  creating a special  the  alleged  both a s s a i l a n t s  to hear cases d e a l i n g  They r e f e r r e d to the 81:  The  of  the  Reserve.  reserve,  the commission of c r i m i n a l acts on  of s e c t i o n  and/or  Code, Parliament had  with e x c l u s i v e j u r i s d i c t i o n  members.  Montour  argued, among other  even i f the judges derived v i s i o n s of the  Stacey and  in the matter.  on  being  role  a p p l i c a t i o n f o r an order  act of a s s a u l t took place victims  status and  ground that the court  no j u r i s d i c t i o n  further  by  court with reserve  sub-sections  59  It  (c)  the  observance  (d)  the  p r e v e n t i o n of  (q)  w i t h r e s p e c t to any m a t t e r a r i s i n g o f o r a n c i l l a r y to the e x e r c i s e o f powers under t h i s s e c t i o n .  was  legislative judicial  argued  one,  that but  matter  arising  powers  under  (executive) that  offence  also  out  of  assure  offenders  by the  and,  the  [section to  the  designated  section  power on c o u n c i l  make b y - l a w s  and  that  if  The r e s p o n s e  to of  law and  disorderly  also not  legislate  or  a n c i l l a r y to  that  That its  be b r o u g h t  determine the  court  "with  is,  the  the it  before  power  the  are  the  was  to any of  power  respected  authority  whether t h e r e the  a  and  to  exercise has  out  not o n l y  respect  regulations  decide  conduct  an e x e c u t i v e  only  to  8l\".  order;  81 c o n f e r r e d  but  band has  band to  so,  of  punishment  was  an  (judicial).  that  The powers c o n f e r r e d by s e c t i o n 81 are f i r s t o f a l l , powers to r e g u l a t e , and to regulate only " a d m i n i s t r a t i v e s t a t u t e s " . In o t h e r w o r d s , a band h a s , i n t h i s a r e a , the same s o r t o f l e g i s l a t i v e powers as t h o s e p o s s e s s e d by the c o u n c i l o f a municipal c o r p o r a t i o n . The power to g i v e e f f e c t to r e g u l a t i o n s c a n n o t e x t e n d beyond t h e s e a d m i n i s t r a t i v e s t a t u t e s ; t h e y a r e a c c e s s o r y and n o t h i n g more. '  60 CHAPTER V  THE EXPERIENCE COWICHAN  OF THE  INDIAN  BAND  WITH FISHERIES BY-LAWS  The  reasoning  of  the  drawing  the  analogy  council  and  l i m i t i n g the  one to  only, oust  from the  was,  in  fact,  the  court  in  being  the  raised  a band  the  band  will  c a s e was  Regina  v.  decision  of  Honour Judge  Provincial followed ings  His Court  two and a h a l f  on t h a t  different  and  by-law  of  of  and  their  fisheries  demonstrates  the  it  importance  the  issue  potential  role  can  by-law  such  each  will  treat  it.  a by-law  The  down i n Duncan  proceed-  involving a The h i s t o r y  to  also  to  of  maintain  aspects  of  illuminate show  how  The q u e s t i o n have  fisheries  charge.  court  practical  and  to  decision  attempts  help  put  unreported  combined  band's  L o o k i n g at  eventually  an  The  the  was  This  a band  1984.  controversy.  might  of  Cowichan Band.  two c a s e s  courts  argument  handed  of  departments'  a fisheries  case,  these  of  to  attempts  successful.  Heard,  years  the  be  Jimmy,  14,  an e a r l i e r  administrative  fisheries  instance  Louis  December  an  and M o n t o u r ,  and a m u n i c i p a l  b y - l a w which  not  i n defence John  council  when t h i s  recent  Re S t a c e y  to  government  result most  in  function  reserve  the the  between  that  completely  presence  by-law  suggests  court  i n the  this  the  the is  what  satisfaction  61 of  the  native  of  course,  fisheries  the  to  question  reserve  locations  Commission  Cowichan R i v e r were i n the  right  their  traditional  entered  to  into  fish  pursue  by the  their  local band  chief  the  around  the  The  Indians  the  weirs.98  of  the  with  were  on  all  were i  n  antagonistic  fishing given  of  over  government. the  right  virtually  with  D e n n i s A l p h o n s e , and  the  in  the  Canadian of  for  the  that  history  of  the its  Mounted P o l i c e  R.C.M.P. was  felt  that  taking  too  many  fish.  a lack  nets  in place  of  Department  that,  revolved  when i t  to  called  agree  Fisheries.  with  the  with  ever  the  referring  displays  level  began  use  been  along  as  were  controls.  road  the  in accordance  government  to  Alphonse i n d i c a t e d have  need  persuaded  and  i n c l u d e d as  either  weirs,  responsible  by  sites  take  band,  Both  Royal  fish  Several  Trevor F i e l d s ,  a rough  band members  R.C.M.P.  that,  recognised  No t r e a t i e s  fishing  Department  of  they  the  band,  the  were  practices  officer,  use  weirs  between  with  confrontations  the  Chief  of  federal  Early  impact  Band members  band w i t h  early  travelled  relationship  to  Cowichan I n d i a n  1877.  what  fishing  fisheries has  in  practices.  imposition of  present  the  the  specifically  for  Confrontation  and  ultimate  of  allocation.  their  the  of  Ancillary  groups.  Reserve  stations  to  fisheries.  Duncan on V a n c o u v e r I s l a n d ,  Indian the  is user  The near  claim  in in  towards  the  of  co-operation of  past  several fisheries  Fisheries, few  tives  decades because  officers.  62 Mr.  Fields,  district of  the  since  fisheries 1977,  confrontation,  since  he has  fishing in  arrived  rights  court  one o f  the  rights  which  fishing  last  The c a s e band who were closed the  Terms o f  would, abide that  to  it  British  policy  encourage  of  the  eight  with  found  that  federal Further,  conservation Justice  in this  if of  power  fishing the  Dickson  also  that  federal  claims.  the  Cowichan in a 13 o f  as  liberal  as  Columbia  was  Columbia  contended  that  Government was  fishing  pursuits  members  of  the  13 o p e r a t e d  to  inhibit  i n the rights  fisheries  fishing  into Confederation,  It  Eight  field were  would  dismissed  al.  and was  Article  British  in t h e i r  et.  Dominion Government  Indians  British  rights  Jack  salmon  that  case.  those  native  of  for  the  traditional  of  native  members  that  nothing in A r t i c l e  even  instances  Canada  involving  argued  the  fishing.  legislative  of  Columbia's entry  the  has  defend  Court  fishing  stating  Indians  unregulated  it  The c a s e  p r e v i o u s l y employed by the  prior  to  supersede  towards  applied  the  improved c o n s i d e r a b l y  eminently clear  The d e f e n c e  allow  Mr.  cases  would  charged  by a p o l i c y  Government, the  made  Union,  after  Supreme  involved  period.  maintained  occasions.  the  legislation  have  attempted  notable  have  of  in Duncan.99  and has  reached  in charge  r e c a l l i n g numerous  relations  always  on s e v e r a l  Regina100  while  says  The band has  officer  of  and  Court  fisheries.  established, take  the  precedence.  appeal  but on  to  v.  63 narrower  grounds.  the  native  the  particular  been  fishery  duced  as  Jack  Salmon River  and  a defence  since  stocks  they  have  Cowichan  band  is  needs  but  the  not  members  recognise  controls Since  has to  the  point  control  over  discussion being  band was of  its  from  a college began  was  to  late  given  all  the  fisheries been  intro-  salmon,  sizes  The  chum salmon favoured  are  it  for  numbers. critical  a degree  band does  parties  Band and  that  in f i s h e r i e s  In  1981  It  than  food  that,  and  r i v e r with  an o p i n i o n  respected  some  from the  began  facto with  closed  some  times  determine  of  river  the  Department  the  The  which  permits band  management  fisheries  to  officers  by F i s h e r i e s .  where a b y - l a w was  in preference  d_e  fishing  C e r t a i n members  the  fisheries  o p p o r t u n i t y to for  co-operation  regarding  rather  apply  Department.  have  management.  the  of  band and the  band  would  co-patrol  be  the  the  by the  saying  had  Cowichan  province.  in s u f f i c i e n t  1970's  the  between  course  has  in  necessary.  to  appeared  take  stock  fisheries  then  The  i n the  inthe  and coho  that  that  members  the  to  between  imposed  interest  charges  declined  available  the  protect  p r i o r i t y but,  paramount.  elsewhere  are  developed  was  fisheries  have  Chinook  are  some  13 d i d  al.  able  eating,  some  to  it  Article  a conservation  that  et.  as  that  by g i v i n g  instance,  established  by-law  -He found  took and  officers. of  Justice  in place,  it  Fisheries  Act  1 0 1  64 No  r e g u l a t i o n s were enforced  fisheries  officers  that year  personnel , nets appeared year  on  the reserve by f e d e r a l  and,  according  to F i s h e r i e s  i n ^ r i v e r almost n i g h t l y that  in s p i t e of a f e d e r a l r e g u l a t i o n which bars  by net  in Cowichan River at any Since  federal  year.  the i n c e p t i o n of the second by-law, the  fisheries officers  manage on-reserve  in c o n t r a v e n t i o n  have allowed  fisheries,  only to make j o i n t  going  p o s i t i o n with  the band to  onto the  p a t r o l s or where f i s h  of the F i s h e r i e s Act.  the Department of F i s h e r i e s has  by-laws.  time of the  fishing  taken  reserve  are being On  the whole,  a very  passive  respect to the e x i s t e n c e of band  This i s not the case with  the  fisheries  provincial  M i n i s t r y of Environment, which i s p r e s e n t l y very cerned  sold  f o r the maintenance of steelhead stocks  con-  in the  provi nee's r i vers. The  steelhead  cycle similar resource  steelhead  to that of salmon. The  The  life-  management of the provincial the  a sport f i s h e r y o n l y , not a commercial  Indian  food  fishery.  d e c l i n e of steelhead  stocks was  the  the M i n i s t r y ' s i n t r o d u c t i o n , in 1979,  "catch and  a  p o l i c y of the M i n i s t r y i s that  supports  nor an  The behind  t r o u t with  i s the r e s p o n s i b i l i t y of the  government.  fishery  i s a sea-going  release" provisions.  from November to A p r i l  The  reason of i t s  steelhead  of each year and,  run  when the  runs  are at t h e i r peak, (December through March, depending  65 on  the  locale) fishers  by a n g l i n g only, and the r i v e r . The  to immediately  government as i t has  steelhead  i s very  return the f i s h  population.  It i s one  itself  f o r steelhead  While other  1 0 4  measures by showing increased Cowichan River has  with  not.  s i n c e 1979.  that present  anglers,  Environment and  production  the numbers of steelhead In his e s t i m a t i o n , the  gillnet.  years Due  over the winter gillnet  biologist  responsible estimates River  l a r g e l y due  to  taken by Cowichan band members.  issue has  only a r i s e n over are being  high water and  months, steelhead  or by a n g l i n g .  the  productivity.  recovering  as more steelhead to the  on  release  in the Cowichan  per cent of i t s optimum  In his view, the runs are not  few  stocks,  Robert Hooton, f i s h e r i e s  steelhead  total  rivers  management of Vancouver Island  is about s i x t y  last  steelhead  or  Vancouver  per cent of the steelhead  the  Stock numbers have remained  the M i n i s t r y of the  f o r steelhead  to  of the f i v e  Vancouver Island have responded to the catch and  constant  to  shown a  r i v e r s on Vancouver I s l a n d .  important  catch.  interest  traditionally  p r o v i d i n g , as i t does, about f i f t y provincial  steelhead  ^  s i x major steelhead Island  required to take  Cowichan River i s of p a r t i c u l a r  provincial strong  i 0  are  The  muddy r i v e r  can  band members are at the mouth of the  by conditions  be taken only  most popular  f i s h are more v u l n e r a b l e , e n t e r i n g  taken  the  by  locations for  r i v e r where the  in high  concentration  66  of  numbers.  most of  In H o o t o n ' s  netting  the  seen  salmon  the  stock  this  from  The of  it  always is  the  months. food, to  was  sworn a  was  and  Isaac  on the  taken  retrieving  at  Three a time  absolute net  in  any  type the  1982  as  were  the of  steelhead  0 5  he  has  five  year  the  fish  of  the  sense food.  of  a  Sandy was  following that  year.  The two young men set  the  night  in evidence. catch  against  and  time  issue  There  of  the that  in  This  release  fishing  no doubt at  for  by means o f  officer  steelhead.  is  no  as  winter  only  band,  had been  any  was  make  February  when the  at  but  the  The i n f o r m a t i o n  were  for  steelhead  in winter  fishing  facts.  which  that  them a c q u i r e  of  in  imposition  during  provisions  however,  resource  the  sport,  Bill.  There  potential.  river  help  The  preventing  diet  conservation  to  is  full  for  reserve  December.  maintain  two members John  years,  on p a s t  their  a charge  Cowichan R i v e r fish.*  end  the  fish  in e f f e c t  prohibition,  the  dispute  of  in  steelhead the  with  They  a gillnet  of  December,  its  do not  provincial  was  provisions  of  of  patrol  before.  to  release  against  by the  No i s s u e  and  years,  past  course,  do not  past  on escapement  fish  certainly  Joe  river  were  food  catch  laid  Richard  of  from  carry  a mainstay  As t h e y  In J u l y net  places  in  the  regulations.  been  them and  Over  increasing  only  the  ended  activity  Indians,  steelhead  has  runs.  netting  restriction the  activity  experience  is  an  by  year,  for  conservation  these  proceedin  67  The were  first  protected  1956.  They  line  of  by the  relied  defence  Cowichan  on the  was  that  the  band b y - l a w  section  defendants  passed  stating  in  that  No p e r s o n , o t h e r than a member o f the b a n d , s h a l l be p e r m i t t e d to f i s h i n the r e s e r v e w i t h o u t f i r s t o b t a i n i n g a w r i t t e n p e r m i t to do so from the p e r s o n a u t h o r i s e d by the C o u n c i l to g r a n t such p e r m i s s i o n . 106 It  was  argued  permission members  that,  to  fish  on the  c o u l d then  reserve.  This  a witness  for  testified  that,  by r e q u i r i n g non-members  fish  reserve  through  in  1956,  of  it  and the  permit  that  the  a particular be  read  In  support  section  to  4 of  specifically Fishery If next  ment  similar  the  of  sports  it  is  intent  of  the  section  the  The s e c t i o n  an a b s o l u t e  right  b y - l a w which  dealt  with for  would  in  that  in  can  fish  the  all  i n the  the  v.  the  the  to  on  band face  impose  i n no way to  band  the  members.  is  matters  not  Special  British  Columbia.  circumstances,  b y - l a w would  Act R e g u l a t i o n s . R.  fact  of  section  b y - l a w to  apply  Fisheries made  the  on the  only  Province of  be w h e t h e r  the  of  to  refers  the  the to  is  the  fishers  Further,  clear  that  band,  fees.  a l i m i t e d reading  to  of  primary concerns  control  restriction.  over  of  on  income f o r  b y - l a w were  inquiry  precedence  the  in spite  chief  seek  implicit  of  Regulations the  the  was  restriction  made the  it  generation  give of  was  defence,  band c o u n c i l l o r s were the  without  argument the  reserve,  to  Baker  and  R.  the  take An a r g u v.  Basil  68  was  presented  line of  of  cases  fact  was  belief" the  by the was  practice  of  Extensive 1983,  rather  Heard  quashed  no  objection  after  appeal  re-trial,  the  the  of  of  basis mistake  the  decision  that  with  in  and  court  R.  generations was  found  fact  was  the  fact'.  most  Jimmy,  of  of  the  constituted  no a p p e a l  was  that  court  v.  on issue  given  Cyprian of  greater  that  taken  for  on the  a mistake  of  as  later,  defendants  i n Regina  by-law and,  fact  appealable,  The i s s u e  Judge  One y e a r  The d e c i s i o n  Court  steelhead.  the  provincial  probably  fact.107 the  the  for  H i s Honour  it.  in favour  County  of  to  based on  In December o f  in s p i t e  to  circumstances  that  v.  of  fishing  a decision,  taken  "honest  steelhead  presented.  been  'mistake  for  mistake  was  i n R.  Bob law  interest, dealt  v.  Bill  case  in  Joe. R.  terms  v. of  a year  1983,  Jimmy became the  after  council  the  was  fish  information,  than one o f  however,  to  and r e m i t t a n c e  analogous  rather  the  rendering  had e v e r  of  Fa 1 ardeau  young men had an  argument  of  the  in that  earlier  the  is,  As an a l t e r n a t i v e ,  "right"  than  That  presented.  argued  in t h e i r  defence.  only  more  interesting  by-law defence.  In J a n u a r y  the  netting  passed  No. 2.  a far  Bill  the  and Joe  Cowichan  Indian  The b y - l a w . w a s ,  one o f  its  type  1980.  Correspondence  passed  "by d e f a u l t "  at  or,  as  of  incident,  Band  approved  by the  the  clearly  without  benefit  almost  the  band  Fishing By-law,  mentioned  time  1983,  earlier,  Minister  of  shows  since  the  by-law  a ministerial  69 review. The as  band c o u n c i l  1978.  taken  There was  to  opinion  protect that  the  than  the  the  regulate ginning  days to  stocks  band c o n t r o l s  80's,  Fisheries  in p a t r o l l i n g  portions stock  of  in  areas  of  pollution; of  the  It  is  intention  of  out  the  by-law's  20,  gives  extend  the  that  to  is,  flood  and  to  beof  with  then  provisions  also  estimating of  train  c o n t r o l ; water all  By  swimming  eventually  management,  is  than  power to  itself  the personnel  quality;  essential  an a l l - i n c l u s i v e ,  aspects  the  regulations.  Squamish  prototype  make  'special  orders'  the  power to  jurisdiction  "closed  the  purposes,  uncertainty.  its  is  accepted  The t r a i n e e s  making and e n f o r c i n g  specific  to  of  and  itself  further  cases  river.  the  Fisheries  co-operate  be  management.  system  more  to  of  restrictions.  in aspects  early  had to  readily  trained  counting fish  and h a b i t a t  The b y - l a w circuit"  imposed  In c o n n e c t i o n w i t h  erosion  fisheries  be more  was  They were  "counts";  river,  numbers.  the  council  fishing.  and began  in f i s h the  new b y - l a w  of  b y - l a w as  measures  working with  a few members  management  participated  might  band was  fisheries  that  and the  federally  and methods  have  w o r k i n g on the  a realisation  by band members early  started  band c o u n c i l , interpret  The c o u n c i l by making  also the  the  and,  to via  carry section  by-law in  attempted  to  by-law a p p l i c a b l e  to  70  Cowichan I n d i a n Band w a t e r s , and such a r e a s o f r e s e r v e l a n d a d j a c e n t to Cowichan I n d i a n Band w a t e r s as may be n e c e s s a r y f o r the p r o p e r e n f o r c e m e n t o f t h i s b y - l a w , whether such l a n d be s u r r e n d e r e d l a n d or o t h e r w i s e . 1 0 8 In d e s i g n i n g  the  by-law,  the  the  presence  band was  attempting  fisheries  officers  to  / exclude on  the  in  this  entirely reserve.  This  particular  may v e r y w e l l  very obvious  was  a determining factor i n the  Jimmy was British made  taken  was  January to  Evidence  was  of  Bill and  and J o e .  v.  with  led  1984 the  Fisheries a wild  is,  1983  was  based  the  by-law should  the  this  face  of  case it,  The  steelhead  par-  which  had  The i n c i d e n t  by-law  defence.  in  are  as  Cowichan  first  to  the  River  state  and  the  to  on the  that cases  principle be h e l d  to  argued of  stated  in  Baker in  applyrather  Act.  the the  which  the  similar  Falardeau,  In  the  it.  r e l y i n g on the  Fisheries  Act  by-law  presented  i n the  and  the  the  Act.  prosecution  Basil,  than  of  or a n g l i n g .  and  by the  fact,  Fisheries  Fishing Regulations,  resource  That  failure  In  a c o n t r a v e n t i o n of  federal  argued  the  it.  flaw  Jimmy.  fishing,  27,  like  displace  i n the  R.  conserving  The d e f e n c e  to  retaining  raise  steelhead  necessity  the  by s p o r t  opportunity  the  to  charge  occurred  of  case o f  Columbia Sport  ticular been  attempt  charged  pursuant  be a c r i t i c a l  b y - l a w and o t h e r s  the  defence  of  argument  was  available  by-law c o u l d cover  the  that,  on  circumstances.  71 Section with  5 generally  only  minor  allows  that  Baker  of  the  d i d not  properly  and t h a t ,  Falardeau  depends  cases  be d i s t i n g u i s h e d .  also  argued  that  section  once  is  by the 81 o f  Crown, the  upon  court  the  Stacey  statutes.  It  evidence  precept  to  exclude  all  federal  regulation  the  rendering his first  apply  Crown's from  to  that the  decision,  the w o r d i n g o f fishing  arguments  Falardeau.  became  matters  was  concept powers  also  urged  and on the  i n d r a w i n g the that  the  pertaining  to  to  face by-law  band fishing  reserve.  In found  all  by-law  only  was  in  on which  the  Act grants  guiding  control  reasoning  and Montour  particularly  upon the  however,  fisheries  the  totally  the cases  by-law,  might  to  of  the  was  on  that,  apply  line  Indian  administrative  of  the  analysed,  regulate the  members  Crown's argument,  Falardeau  can  by band  restrictions.  The main t h r u s t was  fishing  that  done the  H i s Honour Judge Heard the  b y - l a w was  by Jimmy.  case  at  The e x c l u s i o n a r y  He a c c e p t e d  hand was aspect  sufficient  of  the  distinguishable the  by-law  cruci a l . The e v i d e n c e b e f o r e t h i s C o u r t i n d i c a t e s that the Cowichan Band B y - l a w No. 2 was e n a c t e d to g a i n c o m p l e t e and t o t a l c o n t r o l o f a l l f i s h i n g and f i s h e r i e s w i t h i n r e s e r v e b o u n d a r i e s to the t o t a l e x c l u s i o n o f the F i s h e r i e s A c t and any R e g u l a t i o n s made p u r s u a n t t h e r e t o and e n f o r c e m e n t t h e r e f o r e by F i s h e r i e s O f f i c e r s . . . . When the Cowichan Band B y - l a w No. 2 i s c o n s i d e r e d i n i t s e n t i r e t y , i t g i v e s the Band c o m p l e t e c o n t r o l o v e r a l l fisheries  72 to the t o t a l e x c l u s i o n o f e i t h e r F e d e r a l Government o r P r o v i n c i a l Government a c t i n g under t h e i r p r o p e r A c t and R e g u l a t i o n s .  the  Under the B y - l a w as e n a c t e d by the B a n d , and I am not s u g g e s t i n g t h a t i t w o u l d , c o u l d d e c i m a t e the f i s h i n the Cowichan R i v e r s y s t e m . Surely when P a r l i a m e n t e n a c t e d S e c t i o n 81(o) o f the F i s h e r i e s A c t , i t d i d not i n t e n d t h a t such a b y - l a w c o u l d be enacted.109 In  light  of  Re S t a c e y  and M o n t o u r ,  that  result  was  unacceptable. Further,  it  question  were  and were  necessary  In  the  was  found t h a t  in place  end,  even  conclusions  of  and  found t h a t ,  " i n the  not  able  This and  it  give  may be  clearly extent to  has  that,  by-laws.  been  grant  which  appealed  answer  At t h i s  Indian  Gordon the  the  by-law  are  bands  can  rely  status  controls.  was  Regulations.  defendant  though,  there  with  i n Leech  A c t and by the  stage,  stock  Heard a g r e e d  a higher court  to  in  numbers.  than  them any management  steelhead  case"  Fisheries  eventually,  more q u e s t i o n s to  maintain  instant  the  a more d e f i n i t i v e  fisheries  to  regulations  the  H i s Honour Judge  displace case  enhance  H i s Honour Judge  the  to  to  the  of  will the  there  answers on t h e s e  as  are to  the  by-laws  73 CHAPTER VI  CONCLUSION  a)  Weaknesses It  than  is  At  so  far  of  stage,  been  endeavoured  gation  to  council  this  there  to  one would  of  the  by-laws  in f o r c e .  be  is  not  take  Fisheries  The e l e m e n t s  the  must  is,  it  Act or  The v a l i d i t y o f  of  With  of  the this  would  of  must  native  that  first  conflict  relevant  by-law must,  if  issue  lower c o u r t  at  be d i f f i c u l t  the to  the  where case  within  the  by-law  provisions section  or  be d e t e r m i n e d .  level  that  a b y - l a w which  court  must  it  one  could  anticipate  would  which  would  also  achieve  the  purpose  control.  One o f  the  two p r e d o m i n a n t i s s u e s  fishery  receive  band  between  challenged,  draft  liti-  be d e t e r m i n e d  Regulation  the  decisions  of  the  over  each  predict  The w r i t e r  incident fall  Specific  and F i s h e r i e s  exist.  sections  by-law.  to  result  A c t on r e s e r v e s  circumstances  provisions  to  Court  precedence  whether  the  the  a statement  It  of  case.  that  systematically.  confines  ill-advised  and i n c o n s i s t e n t .  be examined the  more weaknesses  by-law approach  any p a r t i c u l a r  by-laws  application  far  fisheries.  demonstrate  point  are  fisheries  ambiguous  fisheries  are  that  i n the  outcome o f  have  B y - l a w Scheme  reserve  this  court  has  apparent  strengths  management  the  i n the  r e c o g n i t i o n , and of  ensuring  reserve which  74 needs  to  whether to  the  be  thoroughly addressed  the  Fa 1 a r d e a u  line  by-law q u e s t i o n .  Judge  Heard  felt  could  be d i s t i n g u i s h e d  distinguished still  to  on a par w i t h  canvassed  and  the  Whitebear  by-law issue  by the  courts  function  of  of  an a d m i n i s t r a t i v e  His  which  Honour  pared  to  attempt  that  Judge  accept to  assert  unless  binding that  Baker  that  it  Crown had is  incorrectly applied  s h o u l d not  be  of  to  applied  to  be t h o r o u g h l y  the  assertion  The comments on the  nature  which  be  are  do not  Cowichan  are  nature  found i n  and Montour  speak w e l l  the cases  for  the  regulatory.  Jimmy c a s e was b y - l a w and  regulatory  of  c i r c u m s c r i b e d and  strongly  i n the  total  the  Honour  The argument  and Re S t a c e y  Heard the  was  needs  band powers  purport  His  case  a band c o u n c i l  the  by-laws  is  control.  to  applicable  cases.  which  Band C o u n c i l  effect  that  is  is  J i mmy c a s e ,  Fa!ardeau.  latter  second  regulatory  the  and d e c i d e d  the  courts  reasoning  Fa!ardeau  however,  and t h a t  The  In  J i mmy from  be made,  Falardeau  total  that  of  by the  its  control  not  Certainly pre-  unveiled over  Cowichan  fisheries. Were by-law would the  to have  regulations be c i t e d to  In b r i e f , so  in defence  be made on the  regulatory  minimal  p u r p o r t e d l y made p u r s u a n t  far.  to  a charge,  v a l i d i t y of  to a  a determination  the  delegation  authority. court  sanction  for  the  by-laws  has  been  of  75 These d i f f i c u l t i e s are a purely  arise  from the f a c t that the by-laws  s t a t u t o r y t o o l , dependant  on a s e c t i o n of the Indian since  1951 and l a r g e l y  One can probably lature,  Act which  unused  say with  until  for their  has been the past  band  few years.  Act, did  c o u n c i l s c r e a t i n g t h e i r own schemes to  d i s p l a c e the operation  of the F i s h e r i e s A c t . The s e c t i o n  does not create or r e c o g n i s e , provides  in force  some assurance that the L e g i s -  in d r a f t i n g s e c t i o n 81 of the Indian  not envisage  existence  "rights".  It merely  an a d m i n i s t r a t i v e v e h i c l e .  A f u r t h e r element of u n c e r t a i n t y , from the n a t i v e s ' p o s i t i o n , i s the presence of the m i n i s t e r i a l f a c t i s , the m a j o r i t y of f i s h e r i e s have been  disallowed  Affairs.  It may be, then,  not  by-laws  ness of the by-law. by-laws  that the f i s h e r i e s  would  will  by-law  will  the u s e f u l -  One i s the issue of enforcement.  of enforcement  and most allow  personnel.  be necessary.  The  f o r the  Presumably, i f  f i n e s are to be l e v i e d or imprisonment hearing  and Northern  basis.  f a c t o r s which may l i m i t  create c e r t a i n o f f e n c e s  appointment  The  since 1980  by the M i n i s t e r of Indian  be a v a i l a b l e to a l l bands on an equal There are other  veto.  imposed,  Most l i k e l y ,  a court  the band c o u n c i l s  be r e s p o n s i b l e f o r p r o v i d i n g the funds f o r prosecution  and engaging a prosecutor. complicated  This could be c o s t l y and  and could e a s i l y act as a d e t e r r e n t to  enforcement.  Lack of enforcement would  mean a lack of  e f f e c t i veness. One other c o n s i d e r a t i o n , which  i s not n e c e s s a r i l y  76 as  obvious  as  not  waters  "on  the  is,  reading  Order  might  allegedly  reserve" the  ment,  lands  one  1036,  from  particular  body of  go o n l y  the  are  waters  not  are  the  the  so  that  the  other  "on the In  of  the "on  western where  in  spite  The Squamish  the  it  of  Squamish  are  River,  of  bank" of  a  lands  may be  the  that  fact  the  reserve both  arise  reserve  1036,  left  reserve  The major  d i d not  1938  govern-  shore"  encompasses  question  the  transfer  the  reserve",  this  That  federal  waters,  fished.  81.  in  the  of  in Order i n C o u n c i l side  found  or  technically  section  to  cases  Cowichan band  two Cowichan c a s e s .  are  formalised  read  whether  bodies  traditionally of  however,  or  of  "on the  of  descriptions  water.  banks  locations river  purposes  provincial  river,  is  by b y - l a w s  which  the  first,  a number which  a particular  they  the  reserve  finds  to  seem at  covered  for  in Council  reserve  of  it  sides  in  of  the  descriptions,  mostly  on one  Burrard  Inlet  or or  Howe Sound.  b)  Difficulties Assuming  in  that  Resource the  credence,  and  greater  one  has  to  still  trying  to  within  such  number o f  and  problems  even  to  sources,  research  the  fishery,  a limited  Salmon  by-laws  consider  manage t h e  Management receive  bands  use  make  unavoidable including  of  court them,  difficulty  its  of  habitat,  jurisdiction.  steelhead those  eventually  with  capacity  present far and  complex  greater  management  financial  human r e s o u r c e s  re-  than  are  77 available  arise  to  difficulties  from  sensitivity  years,  their the  partly  Because proper  they  to  silting River  differ  so  it.  river  beds  As the system,  and not  with  mining  the  the  or  flash  spraying  resources  management.  one or  as  be  may l e a d  are  is  affected systems used  hydro-electric and  to  in water  these  an  descent;  the  destruction  level  or  system or  must  with  temper-  the  is  expect  expertise  and  specific  entire as  a whole,  basis.  industry,  extensive  A n d , when seen  on the  same w a t e r s h e d s  projects  factors  remedies  be managed  fragmented,  interests  cannot  influential  impact  agriculture,  the  waters,  chemicals  ascent  treated  have  that  requires  ocean.  floods.HO  river  also  four  from sewage  forests;  river  which  must  factors  the  to  environment  i n t r o d u c t i o n of  differ  each  in  own n a t a l  pollution  t h r o u g h changes  various  scale,  partly  two  Spawning w a t e r s as  steelhead  environment.  fresh-water  may b l o c k  support  and one which  the  such  and h y d r o - e l e c t r i c  Balancing  On t h i s  in t h e i r  their  and  from about  spawn  on a p i e c e m e a l ,  salmon  their  and  removal  the  Consider  to  salmon  water  things,  systems  that  for  varies  survival.  which  cover  spawning  of  plants;  among o t h e r  forest  to  factors,  industrial  ature,  to  fresh  return  construction  of  in  their  by numerous  and  life-cycle  management  crucial  for,  band.  Management  Generally,  or  any  lumbering,  urban  a fine  popular  development.  art  indeed  m o n i t o r i n g of  the  bands  either  to  on the  deal  to  have  with  large  system.  large-scale  scale,  the  78 concept less  of  "reserve  management"  habitat  management  natives  are  sequence  does  faced  of  with  fishers.  reserve  have  being By the  locations,  already  taken  the  catch.  at  the  earlier  stages,  taken  by the  Indians  in order  ment.  This  the  bands.  for  less  As i t  than  If  the  an o n g o i n g will  further  size In  is  cent  not  inflexible or other  completing  can o n l y to  fishery  by-law  instrument.  to  of in  to  this  fewer allow  overfishing, must  be escape-  fishery  salmon to  for  accounts  landings.111 r e g u l a t e on the  by-law  fluctuations  in  conditions.  examination  that  reached  management  by-law  to  the  fishers  of  supportable  respond  but  sufficient  salmon  the  in  have  fish  fishery  annual  legally  changing  conclude  claims  c)  per  fish  and s p o r t s  mean  Indian  power a l l e g e d  basis  be too  stock  four  the  take  Problems  complicates  is,  to  the  commercial  their  loom l a r g e ,  last  time  then,  one  seems much  feas i b l e . Not o n l y  the  fishery  the  management  of  the  by-law  r e c o n c i l i a t i o n of  lies  elsewhere  issue,  native  than  in  the  Recommendations Given  approval courts' tation  the  for  the  response on the  difficulties  uncertainty  of  obtaining  by-laws;  the  to  by-laws;  terms  these of  the  and demands  of  ministerial  u n p r e d i c t a b i l i t y of  by-laws;  the  probable  and the  management,  it  the  limi-  practical is  probable  79 that  little  can  a management Fisheries reliable goals.  in  accomplished  tool.  It  device  for  The r e c e n t to  the  Department having  appearance  Fisheries,  was  if  the  addressed  the  of  native  It  is  obvious  that  fishery  claims.  It  fishery niques. other  resource  de  user  groups  If  is  government  at  schemes  least  made  co-operative the  over  between  the  approach  N i t i n a h t and  be an a u s p i c i o u s  to  be  band to  Sheshaht  and  is  i n the to  at  be  with  Affairs, would  were  to  recognise  taken  must  as  interests  by-laws which  the  the  his  the extent.  accorded the techof balance.  Indians,  the  co-operative  has the  been  pointed  council  a result  the  be of  into  of  some  management  be  band,  to  nature  the  It  something  report  least  the  management  development  to  felt  controversy  fishers,  fisheries  seems  Indians  harmony among  Cowichan  be a  Indian  that  evolve.  to  have  response  obvious  must  the  response.  Pearse,  and o t h e r  i n the  control  by-law  as  management  recognised.  obvious  must  as  co-operative  resource  facto  ments  requires  ever  well  claims,  is  as  there  of  some r e c o g n i t i o n  just  management that,  fishery  said  Indians  the  by-law  by-laws  government  is  federal  It  of  by P e t e r  He u r g e s  be  the  political  validity  the  as  current  an a p p r o p r i a t e  Commission.  of  claims  The a p p r o p r i a t e n e s s that  cannot  implementation  fishery  be w e l l - s e r v e d generate  the  but  the  in e x c l u d i n g  dissatisfaction  of  their  by u s i n g  may s u c c e e d  A c t on o c c a s i o n  a reaction the  be  of  has  also  and t h i s might  be  some  arrange-  Department. was  out  The  codified  would taken  seem  in to  further.  80  Pearse nature.  also makes some proposals of a p o s i t i v e  For the economic welfare of the Indians he  advocates  encouraging  them and a s s i s t i n g  them to become  more i n v o l v e d in the commercial f i s h e r i e s , as they were in e a r l i e r years.112 A specific  annual  catch a l l o c a t i o n  f o r each i n t e r e s t e d  band i s recommended in order to a l l e v i a t e having  Indian catch numbers r e s t r i c t e d  ment a f t e r the Department has analysed the commercial and sport c a t c h .  1  Pearse in  suggests  having  the problem of  to p r o t e c t the impact  escapeof  ^  the bands become i n v o l v e d  the a d m i n i s t r a t i o n and enforcement of catch  allocation  p r o v i s i o n s ; f o r example, a p p o r t i o n i n g the catch among band members; i s s u i n g where a general and  individual  permit  Some bands in B r i t i s h  fostered  to band members  has been issued by the Department;  s u p e r v i s i n g band f i s h i n g  enhancement  permits  activities.  A 1 4  Columbia already  p r o j e c t s and f u r t h e r involvement  by the government.  by Pearse, who  This aspect  operate should  be  i s recognised  a l s o would have Indian m a r i c u l t u r e pro-  moted. Pearse  recommends that a l l these  by agreement between or l e s s by-passing  steps be  accomplished  the Department and the band, more  the by-law controversy.  The M i n i s t e r of F i s h e r i e s and Oceans should i n i t i a t e d i s c u s s i o n s with the M i n i s t e r of Indian and Northern A f f a i r s and r e p r e s e n t a t i v e s of Indian o r g a n i s a t i o n s to f i n d means of r e c o n c i l i n g band f i s h i n g by-laws with the paramount r e s p o n s i b i l i t y of the Department of F i s h e r i e s and Oceans f o r f i s h conservation and management.115  81 Reconciliation over  is necessary  the competing c l a i m s .  to end the controversy  In order  f o r the Indians to  participate actively  and meaningfully  management they w i l l  r e q u i r e a s s i s t a n c e of a concrete  nature,  financially  technically,  in f i s h e r i e s  and e d u c a t i o n a l l y .  The n a t i v e claim has been a s s e r t e d and i t i s now the f e d e r a l  government to respond to i t .  up to  82  N O T E S 1. Terms o f R e f e r e n c e o f the Commission on F i s h e r i e s P o l i c y , A p p e n d i x A , " T u r n i n g the T i d e : P o l i c y f o r C a n a d a ' s P a c i f i c F i s h e r i e s " , P e t e r H. C o m m i s s i o n e r , V a n c o u v e r , 1982. 2.  Ibid.,  Preface,  p.  Pacific A New Pearse,  vii.  3. As r e p o r t e d i n The V a n c o u v e r S u n , March 15, 1983 , " N a t i v e r i g h t s w i l l not d i e on v i n e when p r e m i e r s ' conference concludes". 4. The S u n ,  "High March  level session 9, 1984.  on n a t i v e  rights  reaches  impasse",  5. M i n u t e s o f P r o c e e d i n g s o f the S p e c i a l Committee on I n d i a n S e l f - G o v e r n m e n t , House o f Commons, I s s u e No. 4 0 , p . v . 6.  Ibid,  p.  7. Response S p e c i a l Committee 1984, p. 3.  134. o f t h e Government to the R e p o r t o f on I n d i a n S e l f - G o v e r n m e n t , O t t a w a ,  The  8. Sun,  " I n d i a n s seek g r e a t e r November 2 9 , 1983.  The  9. Sun,  "Ottawa f a v o u r s I n d i a n s , December 9 , 1983.  (San  10. P h i l i p Francisco, 11.  Ibid,  control  Drucker, Cultures 1965) , p. 1 3 - 1 4 . pp.  of  fishery  fishermen's of  the  groups  N. P a c i f i c  Their  Fight  13. D o r o t h y B l a c k y S m i t h , James D o u g l a s : B r i t i s h Columbi a , ( T o r o n t o , 1 9 7 1 ) , p. 35. Ibid,  p.  Ibid,  p.  say", Coast,  for  Father  of  32.  15. S m i t h , " D o u g l a s r e s i g n e d F a c t o r i n 1 8 5 8 " . I b i d , pp 4 1 - 4 2 . 16.  resource",  94-95.  12. Anthony N e t b o y , The S a l m o n : S u r v i v a l , ( B o s t o n , 1 9 7 4 ) , p. 372.  14.  the March,  47.  the  position  as  Chief  83  17. Derek P e t h i c k , James Empi r e s , ( V a n c o u v e r , 1969 ) , p.  Douglas: 7 7.  Servant  of Two  18. R e p r o d u c e d i n Papers C o n n e c t e d w i t h the I n d i a n Land Q u e s t i o n 1 8 5 0 - 1 9 7 5 , Lands and Works D e p a r t m e n t , V i c t o r i a , 1875. quoted  19. in  supra,  20.. L e t t e r to B a r c l a y note 17, p. 79. 21.  L e t t e r to Douglas from B a r c l a y , P e t h i c k , s u p r a , note 17, p . 7 8 .  Supra,  note  from D o u g l a s ,  December,  1849,  quoted  Pethick,  in  18.  22. S c h e d u l e to the O r d e r o f Her M a j e s t y i n C o u n c i l A d m i t t i n g B r i t i s h C o l u m b i a i n t o the Union - A r t i c l e 13, R . S . C . 1970, A p p e n d i c e s . 23.  British  Columbia O r d e r - I n - C o u n c i 1  1036,  1938.  24. R o b e r t B. Lane and B a r b a r a L a n e , " R e c o g n i t i o n o f B r i t i s h C o l u m b i a I n d i a n F i s h i n g R i g h t s by F e d e r a l - P r o v i n c i a l C o m m i s s i o n s " , p r e p a r e d f o r U . B . C . I . C . , S e p t e m b e r , 1978, p.12. 25. E x c e r p t from a l e t t e r from D a v i d L a i r d , F e d e r a l M i n i s t e r o f the I n t e r i o r , to C o m m i s s i o n e r A l e x a n d e r C. A n d e r s o n , d a t e d A u g u s t 2 5 , 1876. R e p r o d u c e d i n a paper p r e p a r e d f o r the U . B . C . I . C . by R o b e r t B. Lane and B a r b a r a Lane, September, 1978. 26. See C h r i s t o p h e r J . Pi b u s , "The F i s h e r i e s A c t and Native F i s h i n g Rights in Canada: 1970-1980", U of T , Fac. L . R . 3 9 : 4 3 - 5 4 , S p r i n g 1981, f o r a d i s c u s s i o n o f the c a s e s to 1980 and the arguments r a i s e d t h e r e i n . 27.  [l980]  1 S.C.R.  294.  28. See R . v . B r a d l e y Bob, D i e b o l t , P . C . J . , L i l l o o e t , B . C . August 2 , 1979 , u n r e p o r t e d ; R . v . Roger A d o l p h , G i l m o u r , P . C . J . , L i l l o o e t , B . C . , March 2 0 , 1980, u n r e p o r t e d : R . v . W i l l i a m C h a r l e s Adolph et a l . , Goughton, J . , C a r i b o o County C o u r t , O c t o b e r 2 6 , 1980, unreported. 29.  Ibid.  30.  Lane  31.  Pibus,  32.  Netboy,  33.  Indian  and  Lane,  supra.,  supra., note  supra., Act,  R.S.  note  note  26,  p.2.  p.50.  12,  1970,  24,  C.  p.  371.  149,  section  81.  84  34. I n d i a n A c t , 1951, C. 2 9 , s e c t i o n 8 0 ( o ) . There was an e a r l i e r p r o v i s i o n a l l o w i n g band c o u n c i l s to make " b y - l a w s , r u l e s and r e g u l a t i o n s " r e g a r d i n g c e r t a i n r e s e r v e m a t t e r s such as t r e s p a s s ; r e s e r v e r o a d s , p u b l i c w o r k s ; e t c . , but w i t h no r e f e r e n c e to f i s h o r w i l d l i f e r e s o u r c e s . See I n d i a n A c t , R.S 1927, C. 8 1 , s e c t i o n 185. 35. I n f o r m a t i o n o f the b y - l a w s i n e x i s t e n c e as w e l l as t h o s e d i s a l l o w e d has been o b t a i n e d from a copy o f a By-Law Index f o r w a r d e d by the Department o f I n d i a n A f f a i r s and Northern Development. 1509 ,  36. S t a t u t o r y I n s t r u m e n t s s e c t i o n 15(~2)(e). 15(2)  (e)  Re q u i a t i o n s ,  C.R.C.  1978 ,  c.  The f o l l o w i n g r e g u l a t i o n s and c l a s s e s o f r e g u l a t i o n s , b e i n g r e g u l a t i o n s or c l a s s e s o f r e g u l a t i o n s t h a t the G o v e r n o r i n C o u n c i l i s s a t i s f i e d a f f e c t o r a r e l i k e l y to a f f e c t o n l y a l i m i t e d number o f p e r s o n s and w i t h r e s p e c t to which the G o v e r n o r i n C o u n c i l is satisfied t h a t r e a s o n a b l e s t e p s have been o r w i l l be t a k e n f o r the p u r p o s e o f b r i n g i n g t h e i r p u r p o r t to the n o t i c e o f t h o s e p e r s o n s a f f e c t e d o r l i k e l y to be a f f e c t e d by t h e m , a r e h e r e b y exempt from p u b l i c a tion : by-laws section  made by the 81 o r 83 o f  council of the I n d i a n  a band Act;  under  37. These d a t e s and s i m i l a r i n f o r m a t i o n i n t h i s s e c t i o n have been t a k e n from the Department of I n d i a n and N o r t h e r n A f f a i r s By-Law Index and c o p i e s o f the m a j o r i t y o f the by-;l aws.. 38. 39. Appendix  Cowichan  Band B y - l a w ,  The Squamish "B".  Indian  Ibid,  sections  41.  lb'id ,  section  42.  Ibid ,  sections  4,  11.  43.  Ibid,  sections  7,  8,  44.  Ibid,  sections  12,  45.  Ibid,  section  46.  Fisheries  47.  Ibid,  section  section  Band By- law No.  40.  Act,  3,  1956,  7,  1, 10,  15.  5.  10.  13.  14. R.S. , 20(6).  C.  119,  section  12  see  Appendix " A "  section  1,  see  85  48.  Squamish  By-law,  section  9; F i s h e r i e s  Ac t ,  section  23.  49. Compare s e c t i o n 10 o f the B y - l a w w i t h s e c t i o n 24(1) o f the F i s h e r i e s A c t ; s e c t i o n 11 o f the B y - l a w w i t h s e c t i o n 30 o f the F i s h e r i e s A c t ; s e c t i o n 12 o f the B y - l a w w i t h s e c t i o n 33(2) of the A c t ; and s e c t i o n 13 w i t h s e c t i o n 33(3) o f the A c t . 50.  The Upper N i c o l a  Indian  51.  Ibid,  section  12.  52.  Ibid,  section  4.  53.  lbi d ,  s e c t i on  10.  Band,  section  1,  see  Appendix  "C".  s.  54. 55. 1(a), 56.  14,  I b i d , see closing. Bridge River Indian Appendix " D " . Ibid,  section  57. Cowichan Appendix " E " . 58.  Nitinaht  59.  Ibid,  60.  Indian  Fishing  By-law  No.  1-1980,  16.  Indian Band  Band  By-law,  section Act,  Band  Fishing 1982,  By-law, s  14,  1983,  Appendix  No. 2 ,  s.  "F".  15.  s.  82(2).  61. C o n v e r s a t i o n w i t h D e n n i s Novak, Manager o f L e g a l S t a t u t o r y R e q u i r e m e n t s , Department o f I n d i a n and N o r t h e r n A f f a i r s , March 2 0 , 1983.  and  62. L e t t e r from J . D . L e a s k , D i r e c t o r G e n e r a l , R e s e r v e s & T r u s t s , Department o f I n d i a n and N o r t h e r n A f f a i r s , to L . J . :' P i n d e r , C o u n s e l f o r the Cowichan I n d i a n B a n d , March 3, 1983. 63. R . v . W a l t e r L e e c h , Gordon, P . C . J . , u n r e p o r t e d , 64.  Ibid,  p.  65.  Ibid,  p.5.  66.  Bridge  6 7.  R.v.  68.  Squamish  69.  (1972)  May 12, p. 5.  1983,  Lillooet,  B.C.,  4.  River  Leech,  By-law, supra,  Band  note  By-law,  6 W.W.R.  Appendix 63,  "D",  s.9.  p.5.  Appendix  "B",  s.  6.  450.  70. R . v . Eugene B a k e r , June S h e p p a r d , C . C . J . , u n r e p o r t e d , p.  3, 4.  1983,  Vancouver,  B.C.,  86  71. B.C.,  Ibid,  4.  72. R . v . Roger S t e v e n B a s i l , O c t o b e r F r i e s e n , P . C . J . , u n r e p o r t e d , p. 5. 73.  R.  74.  R.v.  75.  Bridge  76.  R.v.  77.  Ibid,  78.  (1972)  6 WWR 450.  79.  (1914)  6 WWR, 14441.  80.  JJ929)  1 WWR, 402.  81.  [1945]  1 WWR, 266.  82.  supra,  note  80,  pp.  402-403.  83.  supra,  note  78,  pp.  457.  84.  Ibid,  85.  1943  2 WWR, 268.  86.  1949  1 WWR, 14.  87.  Ibid,  88.  Supra,  89.  Squamish  90.  Ibid. ,  91. Ian Corporations 1973)  p.  v.  Baker, Basi1 ,  supra, supra,  River  Basil,  note note  By-law, supra,  70, 72,  supra,  note  72,  p. p.  26,  Matsqui,  2. 7.  note p.  1983,  55,  s.  4.  6.  p.7.  pp.  457  pp.  15.  note  72,  band  p.  p.  3.  by-law,  Appendix  "B",  ss  12-13.  14.  McF. R o g e r s , The Law o f (Toronto: Carswell C o . ,  Canadian 2nd E d . ,  92. D a v i d J . M u l l a n , pp. 3 - 5 2 , 3-53.  Administrative  93.  | l 9 5 8 l 29 W.W.R. ,  471.  94.  \l982]  95.  Ibid. ,  pp.  96.  ( 1981)  63  C.C.C.  97.  Ibid. ,  p.  68.  3 W.W.R.  554.  559-561 (2d) ,  61  Law,  Municipal 1984) p. 370. (Carswell  Co.,  87  98. The a c c o u n t o f the Cowichan b a n d ' s p o s i t i o n was g i v e n by C h i e f Dennis A l p h o n s e i n an i n t e r v i e w g r a n t e d March 2 1 , 1984. 99.  Trevor  1Q0.  (1979]  Fields  was  5 W.W.R.  interviewed  April  19,  1984.  364  101. An o p i n i o n l e t t e r had been s e n t to F i s h e r i e s and E n v i r o n m e n t Canada August 17, 1978 from the Department of Justice. T h i s o p i n i o n f i l t e r e d t h r o u g h to F i s h e r i e s officers i n Western Canada i n 1980 - 8 1 . 102... B r i t i sh 19(2).  Columbia F i s h e r y  (general)  Regulations,  s.  1Q3 B r i t i s h C o l u m b i a S p o r t F i s h i n g R e g u l a t i o n s , made under the F i s h e r i e s A c t , p . c . 1 9 8 4 - 2 7 1 5 , s e c t i o n 60. 104. S t e e l h e a d i n f o r m a t i o n was p r o v i d e d by R o b e r t H o o t o n , F i s h e r i e s b i o l o g i s t w i t h the M i n i s t r y o f E n v i r o n m e n t , r e s p o n s i b l e f o r s t e e l h e a d management on Vancouver Island. 105. 106.  Supra,  note  102.  Cowichan Band B y - l a w #1,  107. Regina v. unreported d e c i s i o n May 10, 1983.  s.l.  See  Appendix " A " .  C y p r i a n B o b , County C o u r t o f W e s t m i n s t e r , o f H i s Honour Judge D . E . M c T a g g a r t ,  108. An o p i n i o n l e t t e r had been s e n t to F i s h e r i e s and E n v i r o n m e n t Canada August 17, 1978 from the Department of J u s t i c e . T h i s o p i n i o n f i l t e r e d t h r o u g h to F i s h e r i e s officers i n Western Canada i n 1980-81. 109. R e g i n a v. o f His Honour Judge 1984, pp.3-4. 110. (Toronto:  John L o u i s Jimmy, u n r e p o r t e d d e c i s i o n H e a r d , Duncan P r o v i n c i a l C o u r t , December  14,  F r e d e r i c k H. W o o d i n g , The Book o f C a n a d i a n F i s h e s , McGraw H i l l R y e r s o n L i m i t e d ) , 1st E d . , 1959, p. 42.  111.  Pearse  Report,  supra  112.  Ibid. ,  Ch.  113.  Ibid. ,  p.  181.  114.  Ibid. ,  p.  183-184.  115.  Ibid. ,  p.  184.  12.  note  1,  p.  175.  88 BIBLIOGRAPHY Chi 1 d e r h o s e , R . J . ; T r i m , M a r j . D o u g l a s & M c l n t y r e , 1979.  Pacific  Salmon.  Drucker, P h i l i p . C u l t u r e s o f the North P a c i f i c Francisco: C h a n d l e r P u b l i s h i n g Company, 1965.  Vancouver: Coast.  San  Evans, J . M . de S m i t h ' s J u d i c i a l Review o f A d m i n i s t r a t i v e 4th Ed. London: S t e v e n s & Son L i m i t e d , 1980. M u l l a n , David J. Limited, 1973.  Administrative  Netboy, Baston:  The S a l m o n : Their Fight M i f f l i n Company, 1974.  Anthony. Houghton  Law.  The  Carswell for  Netboy, Anthony. The C o l u m b i a R i v e r Salmon and Their Fight for S u r v i v a l . S e a t t l e and L o n d o n : W a s h i n g t o n P r e s s , 1980. • Netboy, Tulsa:  Anthony. Salmon: Winchester Press,  The W o r l d ' s 1980.  Most  P e t h i c k , Derek. James D o u g l a s : Servant of Vancouver: M i t c h e l l Press L i m i t e d , 1969.  Company  Survival. Steelhead Trout: U n i v e r s i t y of  Harassed Two  Ian Mac F. Toronto:  The Law o f C a n a d i a n M u n i c i p a l C a r s w e l l Company L i m i t e d .  S m i t h , Dorothy B l a k e y . James D o u g l a s : Columbia. Toronto: Oxford U n i v e r s i t y  Fish.  Empires.  Pibus, Christopher J. "The F i s h e r i e s A c t and N a t i v e Rights i n Canada: 1970-1980." Toronto: University F a c u l t y Law R e v i e w . 39:43-54 Spring '81. Rogers, 2nd E d .  Action,  Fishing of Toronto  Corporations,  Father of B r i t i s h Press, 1971.  W o o d i n g , F r e d e r i c k H. The Book o f C a n a d i a n M c G r a w - H i l l R y e r s o n L i m i t e d . 1st E d . , 1959  Fishes.  Toronto:  89 APPENDIX " A "  BY-LAW #1, EFFECTIVE 20 DECEMBER, 1956 PRESERVATION, PROTECTION AND MANAGEMENT OF FISH  The  Council  of the Cowichan Band of Indians  at a  meeting held the Seventeenth day of October, 1956, makes the f o l l o w i n g by-law pursuant to paragraphs (o) and  ( r ) of Section  80 of the Indian Act.  A by-law to provide and  management of f i s h  the Province  f o r the p r e s e r v a t i o n , p r o t e c t i o n  i n the Cowichan Indian  of B r i t i s h  Reserve i n  Columbia.  FISHING 1.  No person, other  permitted  to f i s h  a w r i t t e n permit  than a member of the band, s h a l l be  i n the reserve without  Council  to grant  2.  Permits  may be obtained  if  3.  such  permission.  and s u b s i s t i n g B r i t i s h  only on production  waters contiguous  Such permit  shall  authorize  the permittee  f i s h in  to f i s h by  to a fee e s t a b l i s h e d from  time to time by r e s o l u t i o n of the Council The d e f i n i t i o n  License,  to the r e s e r v e .  a n g l i n g only and may be s u b j e c t  4.  of a  Columbia P r o v i n c i a l  such i s r e q u i r e d by the person a p p l y i n g , ' t o  provincial  obtaining  to so do from the person a u t h o r i z e d by  the  valid  first  of the band.  of a n g l i n g , open and c l o s e seasons,  90  coarse  f i s h , game f i s h , r e s i d e n t , t o t a l  other matters shall  not  specifically  be as provided  the Province of B r i t i s h  5.  The  constables and shall  of  this  by-law.  6.  Any  officer  in t h i s  by-law  Regulations  Columbia.  C o u n c i l l o r s of the Band, Indian  any  Council  mentioned  in the S p e c i a l F i s h e r y  for  Chief and  l e n g t h , and a l l  other person  be e x - o f f i c i o  or persons  officers  named by  f o r the enforcement  f o r the enforcement of t h i s  f o r t h w i t h s e i z e a l l f i s h p r o t e c t e d by t h i s a) i s found other than  by him  by-law  a member of the Band, who under Sec.  shall  by-law, which  in possession of any  possession of a permit  the  person,  i s not in  2 of  this  by-1 aw; b) appears to have been taken means; and  shall  b r i n g such  by some unlawful  f i s h before a p o l i c e  m a g i s t r a t e , s t i p e n d i a r y magistrate appointed justice Indian 7. this  or  by the Governor in Council to be a  of the peace f o r o f f e n c e s under the Act.  Where a person  i s c o n v i c t e d of an offence under  by-law, the c o n v i c t i n g court or judge may  that the f i s h , in a d d i t i o n to any forfeited  to Her  Majesty  Co unci 1 .  to a c h a r i t a b l e  order  penalty imposed, are  f o r the b e n e f i t of the band  provided, however, that the f i s h delivered  person  so f o r f e i t e d  institution  shall  designated  by  be the  91.  PENALTIES 8.  Any  shall  person who  be g u i l t y  the p r o v i s i o n s of t h i s  of an offence and  summary c o n v i c t i o n dollars  violates  to a f i n e  or imprisonment  days, or both f i n e  and  shall  be l i a b l e on  not exceeding one  hundred  f o r a term not exceeding imprisonment.  by-law  thirty  92  APPENDIX "B"  THE  SQUAMISH INDIAN BAND By-1aw No. 10 •  A BY-LAW FOR THE PRESERVATION, PROTECTION AND MANAGEMENT OF FISH ON THE RESERVE  The  Band Council o f the Squamish  Indian  Bank enacts as  fol1ows:  1.  In t h i s By-law unless  the context  otherwise  a)  Band water" means a l l  requi res : "Squamish Indian  water s i t u a t e d upon or w i t h i n the boundaries of Reserves set aside f o r the use and b e n e f i t of the Squamish Bank of Indians. b) and c)  "Fish"  includes s h e l l f i s h ,  crustaceans  mari ne an i mals. " F i s h e r y " i n c l u d e s the area,  place or s t a t i o n  locality,  i n or on which a pound, s e i n e ,  net, weir or other  fishing  appliance  i s used,  s e t , p l a c e d , or l o c a t e d , and the area, t r a c t or s t r e t c h of water in or from which f i s h by the s a i d fishing  may be taken  pound, s e i n e , net, weir, or other  a p p l i a n c e , and a l s o the pound, s e i n e , n e t ,  weir, or other therewith.  fishing  appliance  used  i n connection  93  d)  "Fishing"  fish  by any  e)  "Band  Squamish f)  Band  acts  and  duties  amendments their 4. be  fished  fry,  catching  council  of  person  so  and whose  that  the  Council.  fishery  defined  officers  by t h i s  t i t l es  weight  than  killed,  whose  by-law  and  are .as ; s p e c f f i e d : i n  shall  killed,  otherwise  three than  and  not  at  any  no salmon  pounds  shall  by a n g l i n g  time or  be  with  1i ne.  No p e r s o n  other  Indian  Band  shall  Indian  Band  waters.  Members  permitted  of  shells.  of  to  Band w a t e r s use  smolt  or  or  and  and  caught  caught  or  the  means  Band  for, less  the  as  parr  of  6.  or  appointments.  grilse  5.  means  may a p p o i n t are  for  Band.  by the  hereto  Salmon  hook  Council"  "Band manager"  Council  fishing  method.  Indian  appointed 3.  means  engage  the  engage at  than  any  rockets,  a member in  fishing  Squamish in time  Indian  fishing and  of  upon  the  Squamish  upon  Squamish  Band  shall  Squamish  be Indian  by any means e x c e p t  explosive  materials,  by  projectiles,  94  7.  Any  f i s h e r y o f f i c e r appointed  hereunder  d i r e c t , e i t h e r in w r i t i n g or o r a l l y nets  or other  fishing  on  may  s i g h t , that  apparatus be reduced in s i z e to  occupy l e s s than o n e - t h i r d  (1/3) of the diameter of  any  stream or  river.  8.  Where unused s l i d e s , dams, o b s t r u c t i o n s , or any-  thing detrimental occupier  e x i s t , and  the owner or  thereof does not a f t e r n o t i c y given  Band Council not  to f i s h  by  the  to remove the same, or i f the owner i s  r e s i d e n t in Canada, or his exact  place of  resi-  dence i s unknown to the Band C o u n c i l , the Band Council may, in any way  without  being  to indemnify  cause such s l i d e , dam, detrimental and  to f i s h  in cases  the  occupier,  o b s t r u c t i o n , or t h i n g  life  recover  to damages, or  said owner or  to be removed or  where n o t i c e has  or o c c u p i e r may occupier  liable  been given  destroyed to the owner  from the said owner or  the expense of so removing or d e s t r o y i n g  the  same. 9.  Every  person using  m a t e r i a l s placed shall  stakes,  for fishing  posts, buoys or  purposes in any  remove the same w i t h i n f o r t y - e i g h t (48)  a f t e r ceasing  to use  10. One-Third  (1/3) of the width of any  and  not  other  water hours  them.  l e s s than two-thirds  (2/3)  r i v e r or  stream,  of the width of  the  9.5  main  channel  shall  shall  be  shall  used  not  or or  at  or  put  chemical  decaying  or  sawdust  time  shall or  fish, or  the  frequented  by f i s h ,  nor  in  over  13.  No p e r s o n  clearing  into  to  be  a place  either  such  or  be  thereof,  of  or  other  any  kind  or  flows  either  such  waters.  operations,  on the  over  ice  is  rubbish or to  the  water  water,  lumbering,, land put  stumps  by f i s h  dead  i n any  such  pass  lime,  character not,  shall  frequented  to  matter, mill  into  in l o g g i n g ,  it  grounds,  substance  a like  section  slash,  put,  poisonous  or  or  likely  or knowingly other  that  either to  debris  flows  into  such w a t e r , be  carried  or into  water.  14.  The Band manager  may make  out  the  provisions  purposes  particular,  to  deleterious  this  from which  of  knowingly permit  remnants  any  net  spawning  that  put,  or  on the  drugs,  engaging  any water  any m a t e r i a l  or  or other  such w a t e r , at  in  of  destroyed.  same i s  named  ice  be  cause  or  stream  therin.  any o t h e r  whether  or  fish  or  tidal  and no k i n d  knowingly permit  substances  permit  of  substances  or  thing,  logs,  fry  in every  open,  placed  any  No p e r s o n  into,  left  apparatus,  The eggs  12.  low t i d e ,  be always  fishing  11.  at  but  and  without  regulations of  restricting  for  carrying  this  b y - l a w and  in  the  generality  of  96 the  foregoing, a)  may make r e g u l a t i o n s :  f o r the proper management and c o n t r o l of f i s h eries;  b)  respecting  the conservation  and p r o t e c t i o n of  fish; c)  respecting  the c a t c h i n g ,  loading,  landing,  handling, t r a n s p o r t i n g , possession and d i s p o s a l of  fish;  d)  respecting  the operation  e)  respecting  the use of f i s h i n g  f)  respecting  the o b s t r u c t i o n  waters frequented g)  respecting  of f i s h i n g  vessels;  gear and equipment;  and p o l l u t i o n  of any  by f i s h ;  the conservation  and p r o t e c t i o n of  spawn ing grounds ; h)  p r e s c r i b i n g the powers and duties of persons engaged or employed i n the a d m i n i s t r a t i o n or enforcement of t h i s the  i)  by-law and p r o v i d i n g f o r  c a r r y i n g out of those duties  authorizing  and powers;  a person engaged or employed  administration  or enforcement of t h i s  to-vary and closed- time•or f i s h i n g has'been f i x e d  15.  Any f i s h e r y  by-law  quota-that  by the r e g u l a t i o n s .  o f f i c e r appointed hereunder may  enforce the p r o v i s i o n s made hereunder.  i n the  of t h i s by-law or any r e g u l a t i o n  97 16.  Everyone  who  v i o l a t e s or prepares to v i o l a t e  p r o v i s i o n s of t h i s by-law, or any  any  r e g u l a t i o n , is  g u i l t y of an o f f e n s e punishable on summary c o n v i c t i o n and  is l i a b l e  17.  to a f i n e of not more than $100.00.  When not otherwise s p e c i f i e d  every  proprietor,  owner, agent, tenant, o c c u p i e r , partner or person actually shall  in charge, e i t h e r as occupant  be deemed to be j o i n t l y and  f o r any of the p r o v i s i o n s of t h i s  or servant,  severally  liable  by-law or of any  r e g u l a t i on. 18.  Penalties  incurred  ments h e r e i n s h a l l the commission 19.  Except  specially incurred  under t h i s by-law or amend-  be sued f o r w i t h i n  two years  of the o f f e n c e .  i n s o f a r as in t h i s by-law i s otherwise  provided a l l p e n a l t i e s and  forfeitures  under t h i s by-law or amendments hereto are  recoverable and e n f o r c a b l e by summary  proceedings  taken under the p r o v i s i o n s of the Criminal relating 20.  to summary  Should any  violation  of t h i s by-law or of any  day during which such v i o l a t i o n a separate o f f e n c e and may -Tlhis by-law may  "Fishing  passed  No.  day then  each  continues c o n s t i t u t e s  be punished as such.  be c i t e d  By-law, 1977,  Considered and  Code  convictions.  r e g u l a t i o n continue f o r more than one  21.  from  f o r a l l purposes  as  10".  by the Squamish Band C o u n c i l , on  the 12th day of September,  1977.  98 APPENDIX THE UPPER WHEREAS  paragraph  grants  NICOLA (c)  of  jurisdiction  law and o r d e r . Officers  to  "C" INDIAN Section  to  the  And t h i s  maintian  BAND 81 o f  Band  the  Indian  Council  to  would e n a b l e  law and o r d e r  Act  regulate  Fisheries  at  fishing  stations. WHEREAS p a r a g r a p h grants  WHEREAS  paragraph  (r)  of  jurisdiction  it  of  the  81 o f  Band  bearing  becomes  to  the  the  Counsil animals,  of  the  Fisheries  and  the  Council  violation  for  Indian  protection  81 o f  Band  for  necessary  government  Indian to  FISH and  the  Indian for  of  peace,  Band to  No.  By-Laws. order  and  regulate  the  and management o f  Indian  80-1  FOR THE PRESERVATION,  i  Band C o u n c i l  enacts  as  1.  this  In  r e q u i res :  of  the  PROTECTION  Upper N i c o l a  Indian  Band  fol1ows: By-law  unless  the  context  Act  the  AND MANAGEMENT OF FISH ON THE RESERVE The  Act  preserve,  fishing.  BY-LAW BY-LAW  Section  a penalty  preservation, Food  to  and manage f u r  imposition  good  Section  game.  grants  WHEREAS  of  jurisdiction  protect other  (o)  otherwise  99  a)  "Upper N i c o l a  water  situated  Reserves Upper  set  Indian  for  Band o f  which  food  Band W a t e r s "  upon o r w i t h i n  aside  Nicola  and water  Indian  the  fishing  use  Indians  from time  different  water  b)  "FISH"  includes:  and  and  benefit  all  sheds,  more  lakes  all  boundaries  immemorial  waters;  in  the  means  areas were  of  of  the  of  land  designated  specifically and  those  streams.  - S o c k e y e Salmon o r Kokanee ( O n c o r h y n c h u s Nerka) -Steelhead, K a m l o o p s : Rainbow T r o u t (Salmo Ga i r d n e r i ) -Coho Salmon ( O n c o r h y n c h u s K i s u t c h ) - C h i n o o k Salmon ( O n c o r h y n c h u s T s h a w y t s c h a ) - B u r b o t - l i n g Cod ( L o t a L o t a ) - D o l l y Varden ( S a l u e l i n u s Malma) - N o r t h e r n S q u a w f i s h ( P t y c h o c h e i 1 us O r e g o n e n s e ) -Large S c a l e Sucker (Catostmus M a c r o h e i l u s ) -Longnose Sucker (Catostmus Catostmus) - B r i d g e L i p Sucker (Catostmus Columbianus) -Carp (Cyprinus C a r p i o ) -Redside Shiner (Richardsonius B a l t e a t u s ) -Peamouth Chub ( M y l o c h e i l u s C a u r i n u m ) - L e o p a r d Dace ( R h i n i c h t h y s F a l c a t u s ) - P a c i f i c h Lamprey ( E n t o s p h e n u s Tridentatus) -And any o t h e r s p e c i e s o f f i s h o r crustacean which may be i d e n t i f i e d from time to t i m e . c)  "Fishery"  situation other  or  i n or  fishing  located,  includes  or  on which  appliance  and the  from which  area,  fish  net,  weir,  tion  therewith;  other  d)  " F i s h i n g " means  any  method;  e)  "Band  Nicola  Council"  Indian  the  Band;  area,  locality,  a pound, is  used,  tract  may be  or  taken  net, set,  of  by the  said  appliance  fishing  for  the  or  used  catching  Council  of  the  or  or  placed,  stretch  fishing  means  weir  place  or  water  in  pound, in  connec-  fish  Upper  by  2.  f)  "Band Manager" means that person so appointed  the  Band Counci 1 ;  g)  "Fishery O f f i c e r "  the  Band C o u n c i l , and includes Band  means persons so appointed  by  by  Constables.  This By-Law a p p l i e s over a l l upper Nicola Band waters: N i c o l a Lake 1 R#l Hamilton Creek 1. R#2 Douglas Lake 1. R. #3 Spahomin Creek 1. R. #4  3.  Band Council  and  d u t i e s are as defined  hereto  may  appoint  and whose t i t l e s  Chapperon Lake 1. R. #5 Chapperon Creek 1. R. #6 Salmon Lake 1. R. #7 Spahomln Creek 1. R. #8 f i s h e r y o f f i c e r s whose acts  by t h i s  By-Law and amendments  are as s p e c i f i e d  in their  appoint-  ments. 4.  No person other  shall  than a member of the Upper N i c o l a Band  engage in f i s h i n g  upon Upper N i c o l a Indian  waters without Band Council 5.  permission.  Members of the Upper N i c o l a  ted to engage in f i s h i n g  Band  Indian  Band s h a l l  be  upon Upper N i c o l a Indian  permit-  Band  waters at any time and by any means except by the use of explosive materials, p r o j e c t i l e s , 6.  a)  or s h e l l s .  Where unused s l i d e s , dams, o b s t r u c t i o n s , or any-  thing detrimental  to f i s h  exist,  the Band Council  may  cause such s l i d e s , dams, o b s t r u c t i o n s , or anything mental b)  to f i s h  life  to be removed or  Without l i m i t i n g  Band Council  in sub-section  a f t e r the Band Council Band Council  the general  may  detri-  destroyed; power given  to the  A, i f the owner i s determined,  has removed the o b s t r u c t i o n , the  recover  of removing or d e s t r o y i n g  from the owner, the expense the o b s t r u c t i o n .  101  7.  No person s h a l l  cause o r knowingly  put, or  knowingly  permit to be put, lime, chemical substances, or drugs, poisonous matter, dead thereof, mill  or decaying f i s h , or remnants  rubbish or sawdust or any other d e l e t e r i o u s  substance or t h i n g , whether the same i s of a l i k e c h a r a c t e r to the substances named in t h i s in any water  frequented by f i s h , or that flows into  water, nor on i c e e i t h e r such 8.  s e c t i o n or not,  The eggs or f r y of f i s h  such  waters.  on the spawning grounds,  shall  not at any time be destroyed. 9.  No person engaging  in l o g g i n g , lumbering, land  c l e a r i n g or other o p e r a t i o n s s h a l l permit to be put, any s l a s h any water  put or knowingly  stumps or other d e b r i s  frequented by f i s h  or that flows i n t o  into  such  water, or on the i c e over e i t h e r such water, or at a place from which  i t is likely  to be c a r r i e d  into e i t h e r  such  water. 10. The Band Manager and Band Council f o r c a r r y i n g out the purposes  may make  regulations  and p r o v i s i o n s of t h i s By-  Law and in p a r t i c u l a r , but without r e s t r i c t i n g the g e n e r a l i t y of the f o r e g o i n g , may make  regulations:  a)  f o r the proper management and c o n t r o l  b)  respecting  the c o n s e r v a t i o n and p r o t e c t i o n of f i s h ;  c)  respecting  the c a t c h i n g , l o a d i n g , l a n d i n g , h a n d l i n g ,  t r a n s p o r t i n g , possession and d i s p o s a l d)  respecting  the use of f i s h i n g  of f i s h e r i e s ;  of f i s h ;  gear and equipment;  102 e)  respecting  waters f)  frequented respecting  ing  obstruction  by the  and  pollution  of  any  fish; conservation  and  protection  of  spawn-  grounds;  g) or  the  prescribing  employed  By-Law and and  in  the  the  powers  and d u t i e s  administration  providing  for  the  or  of  persons  enforcement  carrying  out  of  engaged  of  those  this duties  powers;  h)  authorizing  a person  administration  or  closed  fishing  time  or  engaged  enforcement quota  of  or  employed  this  that  in  By-Law to  has  been  the  vary  fixed  by  any the  regulations. 11.  Any f i s h e r y  hereunder any  may e n f o r c e  regulations  12.  officer  Law i s  guilty  the  made  Every person of  or  Band C o n s t a b l e  provisions  of  duly  this  appointed  By-Law o r  hereunder.  who v i o l a t e s an o f f e n c e  any p r o v i s i o n  and  is  liable  of  this  upon  By-  summary  convi c t i ons: a)  for  the  first  $200.00;  and  ment  for  a term o f  than  2 months; b)  of  not  or  to  and  for less  not  more  or  to  more  imprisonment.  than  both  than  a fine  a term o f or  (sic)  to  not  or  less  to  more  not  not  offence  than less  both  more and to  $200.00, than  such  than  imprison-  imprisonment;  subsequent  and not  6 months,  of  1 month and  fine.and  and each  for  to  $100.00  less  $500.00  imprisonment  not  than  not  a second than  offence  a  fine (sic)  3 months,  fine  and  103 13.  When not  owner,  agent,  in  charge,  to  be j o i n t l y  sions 14.  otherwise  of  tenant  either and  this  the  direct  paid  to  ture  the  which  will the  fine,  fine,  i n the  that  more than  as  the  the  imposed  respect  deemed provi-  under  this  Indian  to  the  may from time forfeiture  expense  fine,  fine,  penalty the  of  penalty or  to  shall  be  adminisor  forfei-  forfeiture  Band C o u n c i l  of  the  forfeiture  is  imposed,  any By-Law o r  day  then  constitutes  con-  By-Law under or  the  each  any  day  a separate  regulation  during  offence  which and may  such.  Law,  1980  for  all  purposes  as  " F i s h i n g By-  80-1".  and p a s s e d  the  1st  day o f  The  Upper N i c o l a  May,  by the  with  Indian  this  Upper N i c o l a  Band C o u n c i l ,  on  1980.  A c t may from time  consistant  the  purposes  of  one  By-Law may be c i t e d No  be  By-Law.  This  Indian  part  the or  shall  actually  Upper N i c o l a  or  manner t h a t  penalty  continues  punished  Considered  penalty  the  promote  of  the  Band w i t h  in  that  person  any o f  Band c o u n c i l  any v i o l a t i o n  for  violation be  or  best  Should  continue  to  By-Law u n d e r w h i c h  imposed,  for  forfeiture  the  i n whole o r  administration 15.  the  or  regulation.  or  the  proprietor,  servant,  liable  any  of  every  partner or  belongs  benefit  be a p p l i e d  siders  severally  penalty  that  bear  is  shall  occupant  c o m m i t t e d and  time  tering  as  regulations  Band f o r offence  occupier,  By-Law o r  Every f i n e ,  By-Law o r  specified  Band C o u n c i l , to  time make  By-Law as  they  persuant  to  regulations  the not  may deem n e c e s s a r y  in or  104  advisable  f o r the  provisions and  of t h i s By-Law according  f o r supplying  restricting  purpose of c a r r y i n g  the  any  deficiency  generality  into e f f e c t  to t h e i r true  therein  of that  power.  and,  the intent  without  105 APPENDIX " D " BRIDGE  RIVER  INDIAN BAND  FISHING BY-LAW No. WHEREAS p a r a g r a p h  (c)  impowers  the  and t h i s  would e n a b l e  law  Band  and o r d e r  at  WHEREAS p a r a g r a p h impowers  the  manage f u r  impowers for  violation  THEREFORE the Bridge  of  of  of  Indian  Act  law and  Officers  to  order,  maintain  to  81 o f  preserve, fish  Section  Council  the  Act  protect  and  and o t h e r  81 o f  for  Indian  the  game.  Indian  imposition  of  Act  a  penalty  By-laws  Band  River  regulate  Section  animals,  (r)  the  stations.  Council  bearing  Band  to  81 o f  Fisheries  fishing  Band  the  Section  Council  (o)  WHEREAS p a r a g r a p h  1.  of  1-1980  Council  Indian  (Indian  Government)  Band e n a c t s  the  of  following  the BY-LAW  FOR THE PRESERVATION,  PROTECTION AND MANAGEMENT OF F I S H .  In  the  a)  this  By-law' u n l e s s  "Bridge  situated  River  falling  Government  or  benefit  the  of  "Fish"  as  into set  Bridge  includes:  Sockeye  Salmon,  Varden,  Sturgeon1,  animals  w h i c h may be  boundaries  the  for  River  the  Indian  Spring  Coho S a l m o n , Steelhead  of  identified  all  of  the  Band o f  Salmon,  Indian  use  Chinook Cod,  time  or  and  Indians.  may i n c l u d e from  waters  reserves  exclusive  Brubotling and  requires:  means  jurisdiction  aside  Tyee  otherwise  Band W a t e r s "  upon, w i t h i n the  otherwise  b)  Indian  context  to  Salmon,  Dolly marine time.  106 c)  " F i s h i n g " means  ding  dip-netting,  by any Band d)  other  fishing  tract  Band  f)  "Band  the  Band  g)  "Fishery  This  or  and  fish  gill as  inclu-  netting  or  authorized  by  area,  used,  means  locality,  set, of  the  weir  placed  water  said used  net,  pound,  place  or  other  located  and  i n or  from  which  net,  weir  or  in c o n n e c t i o n  elected  or  or  therewith.  government  of  the  Band. means  the  person  so  appointed  by  Council. Officer" Council  By-Law a p p l i e s  b)  Bridge  c)  or  hereto  and  a pound,  by the  Manager"  Band  River  any o t h e r  Bridge  are  means  and  all No.  1,  Reserve  No.  2,  falling  Indian  and whose  defined titles  into  so  Band  Bridge  Reserve  Constables.  River  the  appointed  Indian  Band  jurisdiction  of  Band.  may a p p o i n t as  a person(s)  may i n c l u d e  over  lands  River  Council  duties  the  stretch  Indian  waters i n c l u d i n g : a) B r i d g e R i v e r  Band  catching  appliance  Council  River  by the  is  taken  fishing  Bridge  3.  of  on which  appliance  may be  other  the  by any method  dip-netting  includes  in o r  area,  fish  2.  fish  Counc i 1 .  situation  e)  set  method  "Fishery"  the  catching  fishery  by the  are  as  officers  by-law  specified  and  whose  acts  amendments  in t h e i r  appoint-  ments. 4.  Band members  engage  in  and  fishing  non-band  upon B r i d g e  members  shall  River  Indian  be  permitted  to  Band w a t e r s ,  as  107 shall  be  permitted  Where unused  5.  by the  jams,  anything  detrimental  occupier  thereof  Council dent to  to  remove  in Canada,  the  liable  or  or  and  or  the  or  shall  or  into  such w a t e r s ,  may,  or  by the is  not  residence  dam,  of  being  said  obstruction,  has  so  unknown  without  life  notice  Band resi-  is  i n d e m n i f y the  fish  expense  owner  or  to  be  been  removed  given  removing or  to  des-  not,  or  to  be  the  i n any w a t e r  or  it  is  lime  over  likely  named  or  the  or  any  same  in t h i s  by f i s h ,  either  or  substance  sawdust  t h i n g , whether  frequented  into,  chemical  rubbish,  substances  n o r on i c e  from which  put,  mill  substance to  knowingly permit  is  sec-  that  such w a t e r s ,  flows or  to  be c a r r i e d  into  either  in l o g g i n g ,  lumbering,  land  clear-  waters. No p e r s o n  ing,  mining  permit  to  any w a t e r waters, place such  the  matter,  character  tion  7.  to  diversions  given owner  of  slide,  where  cause  poisonous  deleterious  a like  such  in cases  knowingly permit  drugs,  such  place  the  Band.  same.  put  a place  the  Band C o u n c i l  cause  occupier  No p e r s o n  of  exact  if  thing detrimental  owner o r  other  or  i n any way to  damages  6.  or  notice  to  destroyed  troying  after  the  diversion  the  and  exist,  Band C o u n c i l ,  owner o r o c c u p i e r ,  or  fish  same,  his  Indian  obstructions,  not  the  River  slides,  to  does  Bridge  or  engaging other  be p u t ,  operations,  any s l a s h  frequented  o r on the  from which water.  it  stumps  by f i s h  ice is  over  shall  or  that  either  likely  to  or  put other  flows  or knowingly debris into  such w a t e r s be  carried  or  into  into  such at  a  either  at  103  8.  The eggs  not  at  9.  The Band C o u n c i l  may make  out  the  provisions  any  fry  time  foregoing,  of  be  purposes  particular,  a)  or  but  the  on the  spawning  grounds  shall  destroyed.  and  without  may make  for  fish  regulations of  for  carrying  this  b y - l a w and  in  the  generality  of  restricting  the  regulations:  proper  management  and c o n t r o l  of  the  fisher-  ies. b)  respecting  the  conservation  c)  respecting  the  catching,  landing  possession  and d i s p o s a l  of  d)  respecting  the  use  fishing  and  e)  respecting  the  obstruction  f)  frequented  respecting  opment o f  or  employed  h)  and  equipment;  protection  administration  a person  that  has  been  10. Any f i s h e r y  made  Every person  any  of  or  the  officer  engaged  closed  emplaced  may e n f o r c e  of  fish;  any  and  devel-  persons  engaged  enforcement  carrying  out  of  of  those  powers.  and e n f o r c e  guilty  handling,  p o l l u t i o n of  and d u t i e s  providing for  ster  regulations  and  fish;  fish;  powers  i n the  authorizing  hereunder  gear  of  grounds;  the  b y - l a w and  of  conservation,  spawning  prescribing  duties  by  the  g)  this  is  loading,  transporting,  waters  11.  and p r o t e c t i o n  by the  or  the  time  band  or or  Band  employed fishing  of  admini-  regulation  Council.  constable  provisions  to  duly  this  appointed  by-law or  any  hereunder. who v i o l a t e s  an o f f e n c e  and  is  any  provision  punishable  of  upon  this  by-law  summary  109 conviction tions 12.  as  or  severally  13. ly  or  insofar all  by-law or  forceable visions  damages  or  infrac-  every in  be deemed the  proprieter, charge,  to  agent,  either  be j o i n t l y  provisions  of  this  as  and by-law  hereof. as  in this  penalties  by-law  and  amendments  the  the  actually  any o f  by summary  of  specified  shall  to  to  court.  person  regulations  provided  this  by the  servant,  liable  Except  appropriate  otherwise  occupier  occupant  any  a fine  determined  When not  tenant,  or  to  hereto  code  otherwise  forfeitures  proceedings  Criminal  is  are  incurred  recoverable  taken  relating  under to  specialunder  and  the  en-  pro-  summary  convic-  tions. 14.  S h o u l d any  regulation during  15.  16.  No.  not  necessary effect true  continue more  continue  punished  as  any b y - l a w o r  one day  then  constitutes  any  each  a  day  separate  such.  for  all  purposes  as  "Fishing  1-1980. Council  may from time  inconsistent  with  or  for  the  advisable  provisions  of  and  for  restricting  the  generality  the  supplying  17.  F i s h i n g By-Law No.  and  passed  is  the  Bridge  River  hereby  this  this  intent  1980.  of  than  B y - l a w may be c i t e d  The Band  tions  for  violations  and may be  This  By-Law  continue  which  offence  violation  1-1980  signed  Indian  of  to  time  make  regula-  b y - l a w as  they  may deem  purpose  of  carrying  by-law a c c o r d i n g any d e f i c i e n c y that  Band t h i s  their  and w i t h o u t  power.  having  by the  to  into  been  Indian day  considered Government o f of  110 APPENDIX "E"  COWICHAN INDIAN BAND  PREAMBLE This  by-law may be c i t e d  at the "Cowichan  Indian  Band  F i s h i n g By-law, 1983, No. 2." This and  by-law i s made pursuant to s e c t i o n 81 ( c ) ,  (o),  ( r ) of the Indian Act. This  by-law replaces  the Cowichan  Indian  Fishing  By-law, 1956, #1. DEFINITIONS 1.  In t h i s by-law, unless  the context  otherwise  requires:  a)  "Band C o u n c i l " means the duly e l e c t e d  the  Cowichan  b)  "Band Manager" means that person so appointed by  Band c)  Indian  Council of  Band;  Counci1: "Band member" means any member of the Cowichan  IndianBand; d)  "Cowichan  situated  e)  Band waters" means a l l waters  upon or w i t h i n  established Indian  Indian  the boundaries of reserves  f o r the use and b e n e f i t of the Cowichan  Band;  "deleterious  substance" means:  i ) any substance that, i f added to any water would a l t e r or form part of a process of degradation or alteration is  of the q u a l i t y of that water so that i t  rendered or i s l i k e l y  to f i s h fish  or f i s h  to be rendered  deleterious  h a b i t a t or to the use by man of  that frequent  that water, or  M l ii)  any w a t e r  quantity  or  treated,  processed  means, added  to part  ation  of  fish  fish  concentration, or  any o t h e r  form  to  contains  of  or or  that  "Fish"  water,  quality is  includes  to  shell  it  or  the  been  so  or  other  alter  or  or  alter-  so  that  rendered to  such  if  or  water  in  would,  degradation  be  that  has  by heat  that  that  habitat  frequent  that  degrade  of  of  likely  fish  or  state  a process  the  a substance  changed,  from a n a t u r a l  rendered  f)  that  it  is  deleterious  use  by man o r  water;  fish,  crustacans  and  marine  animals; g)  "Fish  habitat"  rearing, fish out h)  depend their  other  life  or  net,  connection  and  areas  nursery,  on which  i n d i r e c t l y in order  the  area,  fish  weir,  area,  a pound,  applicance  and the  from which  grounds  to  carry  processes.  includes  fishing  spawning  and m i g r a t i o n  i n o r on which  located,  seine,  supply  directly  "Fishery"  station  or  food  means  is  or  taken  or o t h e r  seine  used,  tract  may be  locality,  place  or  weir  or  net,  set,  placed  stretch  of  by the  said  fishing  or  water  in  pound,  applicance  used  in  therewith;  i)  " F i s h i n g " means  to  catch  j)  "Reserve"  k)  " R i v e r Management  fish  ed as  such  whose  duties  fishing  for,  catching  or  attempting  by any m e t h o d ; means  the  Cowichan I n d i a n  Personnel"  by Band C o u n c i l and powers  are  means  pursuant as  to  Reserves, a person this  specified  appoint-  by-law,  by t h i s  by-law;  112 1)  "Traditional  of  dip  m)  nets,  "waters  Band  fishing  weirs,  methods"  gaffs,  frequented  means  spears,  by f i s h "  or  fishing  hooks  means  by  and  Cowichan  use  rod; Indian  waters;  JURISDICTION 2. and  This such  by-law a p p l i e s areas  Band w a t e r s of  this  of  as  reserve  maybe  by-law,  to  Cowichan I n d i a n  land adjacent  necessary  whether  such  for  land  the be  to  Band  waters,  Cowichan  proper  Indian  enforcement  surrendered  land  or  otherwise. RIVER MANAGEMENT PERSONNEL 3.  a)  Band C o u n c i l  tion, b)  any  person  to  act  as  Any R i v e r Management  to  these  on  site  that  in  size  to  stream c)  may a p p o i n t ,  by-laws  or  occupy  less  than  appointed  either  fishing 1/3  of  Personnel. pursuant  in w r i t i n g or apparatus the  be  orally  reduced  diameter  of  any  river.  Any R i v e r Management  may e n f o r c e lations  Personnel  or o t h e r  Resolu-  a R i v e r Management  may d i r e c t ,  nets  by Band C o u n c i l  the  made  Personnel  provisions  of  this  appointed  hereunder  by-law or  any  regu-  hereunder.  FISHING 4.  No p e r s o n ,  fishing  Unless  section waters  than  a Band member,  i n Cowichan I n d i a n  possesses 5.  other  a permit  as  pursuant  otherwise  1_6 o f  this  fol1ows:  Band w a t e r s to  ordered  by-law,  section  may engage  unless 1_8 o f  by a s p e c i a l  Band members  that this  order  may f i s h  in person  by-law.  pursuant  to  i n Cowichan  113 a)  Band  Members  handicapped 3 days the  per  Band  that  b)  shall  fishing  to  at  as  only and,  foregoing, set  and  pounds  shall  be  7.  The eggs  not  at  or  or  thereof  does  remove  the  or  exact  his  such  in section for  provided  person  these  of  per  times;  5 (a)  hereof  him o r  her  pur-  Section  5 (a)  hereof,  by t r a d i t i o n a l  restricting may not  the  fish  Band  fishing  generality by use  of  of:  projectiles,  ordered  shall  pursuant  fish  no salmon  fry be  Where unused to  17 h e r e o f ,  during  fish  by o r d e r  or  or  for  to  section  salmon  grilse  killed,  of  fry, less  otherwise  1_6  parr  hereof. or  weight than  by  smolt  than 3 angling  line.  time  detrimental  one  nets  guns:  of  fish  slides  fish  not  same,  on the  grounds  shall  SUBSTANCES  dams,  exist,  notice  or  the  if of  obstructions  and  after  place  spawning  destroyed.  OBSTRUCTIONS OR DELETERIOUS 8.  set  specified  section  times  without  caught  and  in  all  explosives  time,  of  nets;  spear  any  any  at  otherwise  a hook  specified  Band members  No Band member  with  to  be  method  provided  methods  unless  to  mothers,  section;  may f i s h  (iii)  by use  a Band Member to  Except  (ii)  may f i s h  days  by t h i s  that  (i)  single  be maximum of  Members  the  elders,  pursuant  Band members  suant  6.  such  Council  may a p p o i n t  c)  disabled  week,  there  family  or  who are  the  owner o r  given  by the  owner  residence  is is  not  or  anything'  occupier Band  Council  resident  unknown to  the  in  to  Canada,  Band  114,  Council,  the  Band C o u n c i l  obstruction, moved o r to  the  said  thing detrimental  destroyed  owner o r  materials  the  the  to  them.  use  and not  less  channel  at  logs,  or  using for  slide,  fish  where  expense  stakes,  fishing  (1/3)  of  than  and  purposes  the  dam,  life  notice  to  has  be  may r e c o v e r so  re-  been  given  from  the  removing or  (2/3)  in every  no k i n d  of of  any  or  other  i n any w a t e r  shall  after  any  river  or  of  the  shall  fishing  shall  be  ceasing  stream,  width of  stream  other  kind  or  hours  tidal  net  buoys  (48)  width of  two-thirds  any m a t e r i a l  posts,  forty-eight  of  low t i d e ,  open,  to  Band C o u n c i l  the  same w i t h i n  One t h i r d  the  same.  placed  remoive  left  in cases  occupier  Every person  10.  and  owner o r o c c u p i e r  destroying 9.  or  may cause  the  be  main  always  apparatus,  used  or  placed  there. 11.  No p e r s o n s  into, ical  or  put  or  substances  decaying  fish,  sawdust  or  whether  the  named fish  No p e r s o n  ing  or  other  put,  any  frequented ice  over  likely  to  or d r u g s , or  ice  or  over  by f i s h  poisonous  matter,  dead  or  rubbish  or  thereat,  such  or  that  into  to  i n any water  or the  chem-  thing, substance  frequented  by  waters.  shall  put  other  flows  such w a t e r ,  carried  substance  in l o g g i n g ,  or  mill  character  not,  stumps  pass  lime,  a like  operations, slash,  be  of  to  be p u t ,  deleterious  engaging  either  knowingly permit to  remnants  section  an any  or  knowingly permit  same i s  in this or  cause  any o t h e r  12.  be  shall  or  at  either  lumbering, or  into  any  such w a t e r ,  a place such  clear-  knowingly permit  debris  into  land  to  water or  on  the  from which  it  is  water.  115 PROHIBITION  13.  No person s h a l l  fishing 14.  as authorized  No person s h a l l  results  than  by-law.  carry on any work or undertaking a l t e r a t i o n , destruction  fish  f o r , buy, s e l l  that  or d i s r u p -  or have i n h i s  any f i s h , or p o r t i o n of any f i s h , at a place  where at that time f i s h i n g this  by any means other  habitat.  No one s h a l l  possession  fish  or s p e c i f i e d by t h i s  i n the harmful  t i o n of fi.sh 15.  destroy  f o r such f i s h  i s contrary to  by-law.  SPECIAL ORDERS 16.  Band Council  that Band a) at  Resolution  specify  members: S h a l l not f i s h  as allowed  any time or place  until b)  may by Band Council  f u r t h e r order  May f i s h  under these by-laws,  s p e c i f i e d i n the s p e c i a l of Band  order  Council;  otherwise than as allowed under these  by-laws by reason of s p e c i a l circumstances, at any time or place 17. ing  Band Council  s p e c i f i e d i n the the s p e c i a l may make other  s p e c i a l orders  out the purposes and p r o v i s i o n s of t h i s  order. for carry-  by-law as  fol1ows: a)  f o r the proper management and c o n t r o l of f i s h e r i e s ;  b)  respecting  handling,  the c a t c h i n g ,  loading, landing,  t r a s p o r t i n g , possession  c)  respecting  the operations  d)  respecting  the use of f i s h i n g  e) .  respecting  the o b s t r u c t i o n  and d i s p o s a l  of f i s h i n g  i of f i s h ;  vessels;  gear and equipment;  and p o l l u t i o n of any  116 waters f)  frequented  prescribing  engaged  or  ment o f  this  out  of  fish;  the  employed  those  18.  Band  than  a Band member  time  and p l a c e  the  by  Council  powers  and d u t i e s  in  administration  the  by-law  and  providing  duties  and  powers;  may  issue  to  fish  a permit in  and a c c o r d i n g  of  for  to  persons or  the  any  enforce-  carrying  person  Cowichan Band w a t e r s to  the  method  other at  the  specified  in  permit.  19.  With  laws,  regard  to  Sections  Band C o u n c i l a)  give  notice  to  by p o s t i n g  places  on the  special  order  b)  special  furthering spawning  17,  and  18 o f  these  by-  shall:  orders  all  16,  the  all  persons  a copy o f  Reserve  at  coming  into  orders  affected  such  least  by t h e  orders  24  hours  at  special  conspicuous  prior  to  the  effect;  shall  conservation  be  for  the  purpose  and p r o t e c t i o n  of  of  fish  or  grounds.  INTERPRETATION 20. in  In the  the  event  that  interpretation  requested  to  do so  pretation  of  the  any of  ambiguity  this  by-law,  or  uncertainty  Band  Council  by a Band Member, p r o v i d e  by-law  by Band C o u n c i l  its  arises may,  if  inter-  Resolution.  VIOLATION 21.  Every person  provision Sections  of  this  16 and  who v i o l a t e s by-law  or  17 h e r e o f ,  or  prepares  any o r d e r is  guilty  to  violate  made p u r s u a n t of  an o f f e n s e  any  to and  is  .117 punishable  on summary  $100.00  to  22.  or  Should to  than  day,  one  Cowichan  violation  Sections  constitutes Considered  imprisonment  any  pursuant  conviction  then  16  and  Indian  passed Band  of  and  each  a separate  of  to  not this  offense  by-law  such  not  30  or  the  for  violation  meeting  OF BRITISH COLUMBIA,  JANUARY,  HEREBY  more  as  of  of  NANAIM0 AGENCY,  BAND COUNCIL  18,  1983, DO  -  1983.  THE COWICHAN  RESOLVED TO ADOPT THE ATTACHED  BY-LAW AS COWICHAN INDIAN #2  1983,  BAND FISHING BY-LAW  the 1982.  PROVINCE  AT A DULY CONVENED MEETING OF THE COWICHAN BAND HELD ON JANUARY  such.  ,  RESOLVE:  COUNCIL  made  continues  punished  day  than  orders  THE COUNCIL OF THE COWICHAN BAND, DUNCAN, 18th  more  days.  continue  convened  the  of  than  and may be  a duly  Council  more  17 h e r e o f ,  day which  at  a fine  118 APPENDIX  NITINAHT  "F"  BAND BY-LAW  NANAIMO AGENCY MALACHAN,  BRITISH COLUMBIA  MARCH 11,  This Indian  By-law A c t , at  POSITION 1.  is  passed  the  regular  of  hereby  established.  salary  for  this  Council,  and  is  filled  be  Band  to  Section  bnad m e e t i n g  shall  be  shall  paid  81 o f  on March  by the  Band C o u n c i l .  Band Manager the  shall  Band  be a p a i d  10,  a)  The Band  determine to  serve  the  Fisheries  removed  vacancy  the  The  in  duties  Conservation  Fisheries to  the  best  capacity  of  the  waters  to  sustain  production  b)  The Band  Fisheries  any  area  fishing  for  appropriate The Band  hibit  any  Conservation  in  the  and  this  gear  type  any  interests  position,  Officer  OFFICER shall available  of  the  Band's  fish. Officer  may  of  he  time  close considers  conservation.  Conservation  he c o n s i d e r s  Office  Officer.  on each  period of  the  functions  information  Conservation  for  Fisheries  of  Band  position  from  and  is  The  by the  Band C o u n c i l  until  of  perform  Funds.  according  him the  reserve  c)  1982.  Officer  POWERS AND DUTIES OF BAND FISHERIES CONSERVATION 2.  the  position.  be e s t a b l i s h e d  of  In c a s e  shall  Conservation  from Band  by r e s o l u t i o n  appointed  to  shall  position  so  assigned  Fisheries  This  person  the  pursuant  ESTABLISHED  The p o s i t i o n  to  1982  Officer  shall  inappropriate  for  pro-  119 any  location.  d)  The Band  enforce e)  Fisheries  this  this  Officer  shall  Conservation  Officer  shall  By-law.-  The Band  collect  Conservation  Fisheries  statistics  on a l l  fish  caught  or  sold  under  By-law.  PERMIT TO FISH 3.  The Band  member on  of  Council  the  may i s s u e  Nitinaht  a permit  Band e n t i t l i n g  to  that  a person person  to  not  a  fish  reserve.  OPENING AND CLOSURES 4.  The Band  for  the  on  ASSISTANT 5.  Reserve  Conservation The  salary  the  Band  for  these  Council,  under  openings  the  the  Officer  and  closures  shall  be  one  OFFICERS or  shall  be  shall  be  paid  from  more paid  Fisheries positions.  established Band  by  Funds.  shall:  enhance  the  These  positions  and  carry  in  may a p p o i n t  Assistants.  Officer  b)  designate  Fishery.  Council  assistants a)  shall  BAND FISHERIES CONSERVATION  The Band  These  Council  direction out  work  to  fisheries, absence  have  all  of  of  the  Fisheries  monitor,  Conservation  administer,  and  and the  powers  Band  under  Fisheries Section  2.  Conservation  120  NOTICE No o p e n i n g or  6.  under take  Section effect  posted is  to  near take  GENERAL 7. by  until the  under  Section  prohibition  notice  place  of  at  the  which  under  closure the  4 and  no  Section or  closure shall  2(e)  prohibition  closure  or  is  prohibition  effect.  CLOSURE  this  shall  fish  on r e s e r v e  except  as  permitted  By-law.  GENERAL  PROHIBITION  No p e r s o n  except  or  2(b)  No p e r s o n s  8.  closure  a type  Officer  or  shall  use  approved  any g e a r by the  by p e r m i s s i o n  of  to  catch  fish  Band F i s h e r i e s  the  Band  on  reserve  Conservation  Council.  NON MEMBERS 9.  It  is  who  is  not  serve  an o f f e n c e  against  a member o f  the  without a permit  this  By-law f o r  N i t i n a h t Band to  issued  pursuant  to  any fish  person on  Section  re-  3.  OFFENSE 10.  It  is  an o f f e n c e  contravention  of  against  this  a closure  or  fishing  shall  B y - l a w to  a prohibition  fish under  in this  By-1aw. MARKING OF GEAR 11.  A l l Gear  while when to  in use, i n use  label  if  gear  for  except  that  clearly according  gear  1abelled to  this  be  attended  may be with  left  at  all  unattended  owners i n a m e .  section  is  times  an  Failure  offence  .12.1 under  t h i s By-1aw.  PENALTIES 12.  Maximum p e n a l t y  thi s  By-1aw a)  A fine  the  first  b)  A fine  both  for  ADDITIONAL 13. in  shall  $10.00  offence of  the  to,  under  portion  is  these  of  the  any  imprisonment  under  3 days  for  and  for  30 days  i n any c a l e n d a r  or  year.  committed. it  the  information persuant  Conservation by any  Fisheries  may commence  By-law,  committed  any  on r e s e r v e the  prohibition to  the  this  for  year  in becomes  individual  Any v i o l a t i o n  under  set  of  the  By-law.  FISHERIES  requested the  communicated  an o f f e n c e  Fisheries  to  is  Such  prohibition.  WITH FEDERAL  any  who has  following  also  The Band  person  penalties  Conservation  year  as  14.  Fisheries  calendar  as  to  the  fishing  was  subject  Band  to  from  COOPERATION  this  for  year;  By-laws  offence soon  the  is  officer  or  in a l t e r n a t i v e  prohibition  ed  calendar  offence  or  12 a b o v e ,  offence  who  an o f f e n c e  imprisionment  i n any  second  may p r o h i b i t  effective  or  $100.00  Officer  the  of  PENALTIES  paragraph  which  commission  be :  of  In a d d i t i o n  any  for  fisheries  any  for  Reserve  shall  officer  A c t on demand.  a prosecution  and may e n t e r  Officer  A  any  appoint-  fisheries  any o f f e n c e at  provide  time.  under  122. JOINT MANAGEMENT 15.  The Band  Fisheries as  the  Conservation  Band  Concil  persons  as  appoint  (not  Council), power  to  cerning  Fisheries  the  may a p p o i n t ,  exceed  constitute  the  Assistants,  M i n i s t e r of  to  make  Conservation  the  and  number  to  other  with  appointed  the  the  as  & Oceans  management  recommendations  such  together  Fisheries  a joint  Officer,  persons many  shall  by the  Band  committee,  with  Band  Council  con-  fishery.  SALE  OF FISH  16.  Any f i s h  any  person  the  number o f  caught  provided fish  under that  sold  this  person to  Band  B y - l a w may be selling  the  Fisheries  sold  fish  to  reports  Conservation  Officer. BAND COUNCIL  MAY OVERRULE  17.  The Band  Band  Fisheries  By-1aw.  Counsil  may o v e r r u l e  Conservation  Officer  any  decision  of  made p u r s u a n t  a to  this  

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