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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 b y JENNIFER LYNN JONES-DESJARLAIS LL . B . , Queen's University, 1977 A THESIS SUBMITTED IN PARTIAL FULFILLMENT THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n THE FACULTY OF GRADUATE STUDIES We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA May 1985 (<p Jennifer Lynn Jones-Desjarl ai s , 1985 In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y available for reference and study. I further agree that permission for extensive copying of t h i s thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. I t i s understood that copying or publication of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of Law The University of B r i t i s h Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Date June 20, 1985 DE-6 YVftn i i ABSTRACT Native Indian bands in B r i t i s h Columbia continue to assert rights to participation in the West Coast f i s h e r i e s . Numerous attempts to have legal and aborig-inal fishery rights recognised by the courts have f a i l e d and pleas to the federal government for p o l i t i c a l reso-lution have not yet produced results. Various bands in the province have, over the last few years, been testing in the courts a new means of securing reserve f i s h e r i e s for themselves. There is a provision in the Indian Act which allows band councils to pass by-laws relating to a number of subjects, among them the "preservation, protection and management of... fish...on the reserve". The provision has been l i t t l e -used in the past but, recently, by-laws have been drawn which purport to give band councils authority to f u l l y manage their reserve f i s h e r i e s . The issue is nascent in the courts as by-laws are now being tendered in de-fence to prosecutions under the Fisheries Act. The predominant argument in defence to the charges is that, where a f i s h e r i e s by-law is in place, i t s terms apply to fis h i n g which takes place on the reserve, in precedence to the terms of the Fisheries Act and Regulations. The defence has been given some credence by some courts but has not yet been f u l l y argued. It is an issue which s t i l l remains at the County Court l e v e l . i i i S t i l l to be determined are the interpretation to be given the enabling provision of the Indian Act and the v a l i d i t y of the by-laws, including the extent to which they might preclude application of the federal Fisheries  Act on the reserve. A clear ruling by a higher court would assist bands in determining what value these by-laws might be in securing the control they desire over reserve f i s h e r i e s . Other factors affecting the value of the by-laws to the natives are the amount of control which can p r a c t i c a l l y be exerted over the resource, given most bands' reserve locations upstream from the sites of the commercial and sport-fishing e f f o r t but downstream from the spawning grounds, and the level of f i s h e r i e s management expertise of the various bands. This paper investigates the potential of band fi s h e r i e s by-laws to a s s i s t natives in their struggle for some control of their f i s h e r i e s , as well as the implication of these by-laws for other user groups of the f i s h e r i e s . The h i s t o r i c a l context of the native Indian f i s h e r i e s claims is provided, and a description of the current by-laws. Against that background is an analysis of the case law to date. A discussion of the v a l i d i t y of the by-laws reveals their weakness for the intended purpose of excluding the federal f i s h e r i e s department from any managerial control over reserve f i s h e r i e s and the necessity for a more viable solution to the problem. i v i TABLE OF CONTENTS INTRODUCTION CHAPTER I CHAPTER II CHAPTER IV CHAPTER V CHAPTER VI The History of the Native Fisheries CI aims a) The Cultural Significance of Fish to Indians b) Colonial Settlement and the Douglas Treaties c) The Reserve Commissions d) Court History Band Council Fisheries By-laws a) Introduction b) Description of Current By-laws c) The Requirement for Min i s t e r i a l Approval of the By-laws CHAPTER III Case Analysis a) Regina v. Leech; Regina v. Baker; Regina v. Basil b) The Basis in Law for the Decision in Regina v. Baker c) Is the Issue of Indian Band By-laws Versus the Fisheries Act Properly Subject to the Same Kind of Analysis? The Legal V a l i d i t y of the By-laws The Experience of the Cowichan Indian Band with Fisheries By-laws Conclusion a) Weaknesses in the By-law Scheme b) D i f f i c u l t i e s in Resource Management c) Recommendations P. P P. P. P P P 7 10 12 14 14 16 p. 25 p. 29 p. 29 p. 36 p. 41 p. 50 p. 60 p. 73 p. 73 p. 76 p. 78 V NOTES BIBLIOGRAPHY APPENDICES p. 82 p. 88 p. 89 1 INTRODUCTION Native Indians in B r i t i s h Columbia have always asserted a right to f i s h without hindrance in their usual and accustomed fishing grounds. They, along with non-native commercial and sport f i s h e r s , have watched as fishery resources have become more and more depleted and fishery regulations more and more r e s t r i c t i v e . Over the last two or three decades, Indians have defended themselves against a growing number of prosecutions under the Fisheries Act by various arguments based on claims of tr a d i t i o n a l and s t i l l - e x i s t i n g fishing rights. As w i l l be explained, these defences have consistently f a i l e d . It becomes clear from reading the cases that, while there is often a sympathetic hearing, the courts feel that the l e g i s l a t i v e and p o l i t i c a l forum is the appropriate one for any satisfactory resolution. P o l i t i c a l l y , the native Indian f i s h e r i e s claims has become a prominent issue in very recent years. This is attributable to the conjunction of two major factors; the alarming decline of fi s h e r i e s stocks, p a r t i c u l a r l y salmon, on the West Coast, and an expressed willingness on the part of the federal government to discuss s e t t l e -ment of aboriginal claims generally. The federal Commission on Pa c i f i c Fisheries Policy was established in 1981 to investigate the state of the 2 f i s h e r i e s re sources on the West Coast and to make recommendations on the management and u t i l i s a t i o n of them. * The re lea se of the f i n a l r epor t of the Commission adv i sed what was a l r e a d y c l e a r to many; that i s , that "Canada ' s P a c i f i c f i s h e r i e s are at a c r i s i s p o i n t . " 2 Commissioner Peter Pearse ca ta logued the i l l s of the West Coast f i s h e r i e s , i n c l u d i n g the c o n f l i c t generated by Indian c l a ims in the face of e v e r - i n c r e a s i n g govern-ment r e s t r i c t i o n . The f e d e r a l government i s now e x p r e s s i n g a w i l l i n g -ness to f i n a l l y r e s o l v e o u t s t a n d i n g i s sues with re spec t to n a t i v e c l a i m s . These i n c l u d e the very broad ques t ions of land c l a i m s ; economic and p o l i t i c a l s e l f - d e t e r m i n a t i o n ; and access to f i s h and w i l d l i f e r e s o u r c e s . "The e x i s t i n g and a b o r i g i n a l and t r e a t y r i g h t s of the a b o r i g i n a l peoples of Canada" were " r e c o g n i s e d and c o n f i r m e d " in s e c t i o n 35 of The C o n s t i t u t i o n A c t , 1982. There was a committment on the par t of the f e d e r a l government to meet p e r i o d i c a l l y wi th the c o u n t r y ' s n a t i v e l eader s i n o rder to n e g o t i a t e r e s o l u t i o n . In March o f 1983 the p r o v i n c i a l premiers and the c o u n t r y ' s n a t i v e l e ader s met in Ottawa to commence n e g o t i a t i o n with the f e d e r a l government. There were no s u b s t a n t i v e r e s u l t s from t h i s f i r s t conference but there was, g e n e r a l l y , a committment from most of the p r o v i n c i a l premiers to cont inue the process u n t i l 1 agreeable s o l u t i o n s 3 cou ld be fo rmula ted .3 The second such c o n f e r e n c e , he ld in Ottawa in March of 1984 ended in b i t t e r n e s s and d i sappointment for n a t i v e s . In s p i t e of f e d e r a l support for the e n t r e n c h -ment in the C o n s t i t u t i o n of a n a t i v e r i g h t to s e l f -government , the m a j o r i t y of p r o v i n c i a l premiers nega-t i v e d the p r o p o s a l , r e f u s i n g to support the concept of se l f -government u n t i l the s t r u c t u r e and terms of such government cou ld be d e f i n e d . 4 The r e s u l t s of the t h i r d conference in the s p r i n g of 1985 were s i m i l a r . Al though C o n s t i t u t i o n a l amendment r e q u i r e s pro-v i n c i a l s u p p o r t , the f e d e r a l government s t i l l demonstrates support fo r g rea te r n a t i v e autonomy. A P a r l i a m e n t a r y T a s k - f o r c e on Indian Se l f -Government was ordered e s t a b l i s h e d in the House of Commons in December of 1982.5 An a l l -par ty S p e c i a l Committee t a b l e d the "Second Report to the House" i n October of 1983. In i t , the Committee recommended r e c o g n i t i o n of a separate l e v e l of govern-ment f o r Indian " F i r s t N a t i o n s " wi th a gradual phas ing out of Department of Indian A f f a i r s and Northern Develop-er ment programmes which r e l a t e to I n d i a n s . The govern-ment's response to the r e p o r t was that i t in tended to i n t r o d u c e l e g i s l a t i o n which would enable Indian groups , in bands or o ther u n i t s , to e x e r c i s e some c o n t r o l over t h e i r economic and p o l i t i c a l a f f a i r s . The l e g i s l a t i o n would apply only to those F i r s t Nat ions who opted f o r 4 the autonomy.7 The attempts to settle land claims in the North and the return of cut-off lands to bands in B r i t i s h Columbia are examples of the federal government's good fa i t h in these matters. Fisheries claims are an important aspect of s e t t l e -ment and here, too, the federal government is indicating i t s readiness to respond to the claims. In 1983, Pierre de Bane, Fisheries Minister at that time, agreed with the proposals of the Pearse Report that Indians take a greater part in the fishing industry. 8 About the same time, Indian A f f a i r s Minister John Munro said that the f i s h e r i e s aspect of aboriginal claims could now be negotiated. 9 At issue primarily is the salmon-fishing industry as that constitutes the basic food f i s h for the Indians. It also constitutes the major commercial and sport fishery and is in a serious state of decline. The salmon fishery is a p o l i t i c a l l y sensitive issue in i t s e l f and this makes any settlement with the Indians very controversial. Right now, the federal government faces c r i t i c i s m from a l l user groups for i t s alleged mismanage-ment of the resource. Before examining the current e f f o r t s various bands in B r i t i s h Columbia are making to protect their own f i s h e r i e s , i t w i l l be useful to b r i e f l y survey the basis of the Indian claim to the fishery and the history of 5 their f a i l u r e to convince the courts of the p r i o r i t y of their claim. 6 CHAPTER I THE HISTORY OF THE NATIVE FISHERIES CLAIMS a) The Cultural Significance of Fish to Indians Salmon has always been of integral importance to P a c i f i c North-West Indians. It has formed the major part of their diet and has also been of great s o c i a l , economic and religious significance. Life in coastal communities revolved around the annual salmon runs. Bands would move to rive r fishing camps during the autumn months to harvest the f i s h which would feed them over the winter and also serve as an item of trade with i n t e r i o r t r i b e s . The salmon ran in such abundance that i t was a r e l a t i v e l y easy matter to gather and preserve the winter's food supply within a short time. The benefit of such easy access to this dietary staple shows in the richness of culture which is associated with the P a c i f i c North-West Indian groups. Freed from the necessity of day-to-day food gathering which characterised many early cultures, the coastal Indians had much time to develop and sophisticate their v i l l a g e s i t e s , their art forms and their social systems. i 0 In their appreciation of, and a f f i n i t y with, 7 n a t u r e , the n a t i v e s of the P a c i f i c North-West held the salmon s p i r i t , or b e i n g , in great r e g a r d . It was the bounty of the salmon beings which su s t a ined the people and they honoured them. The f i r s t a r r i v a l of the spawning salmon each year was a matter of ceremony to honour and welcome the f i s h . P h i l i p Drucker , in C u l t u r e s  of the North P a c i f i c Coas t , e x p l a i n s i t in the f o l l o w i n g manner, Because the salmon were regarded as beings who v o l u n t a r i l y s a c r i f i c e d themselves fo r the b e n e f i t of man, i t was important that they be t r e a t e d w e l l . Al though salmon beings l e f t t h e i r m a t e r i a l bodies 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 ca tch of the year in important f i s h i n g p laces was given an e l a b o r a t e welcome, so that the salmon beings would be wel l d i sposed toward the humans who f i s h e d t h e r e . 11 b) C o l o n i a l Se t t lement and the Douglas T r e a t i e s The e a r l y s e t t l e r s a p p r e c i a t e d the s i g n i f i c a n c e of the salmon to the Indians as t h e i r main d i e t a r y and economic suppor t . As w e l l , the s e t t l e r s b e n e f i t e d from the n a t i v e p r o f i c i e n c y in f i s h i n g as the Indians were able to supply food f o r the s e t t l e r s as w e l l . Encourag ing the Indians to cont inue with t h e i r usual f i s h i n g p r a c t i c e s was a m u t u a l l y b e n e f i c i a l t h i n g . On a commercial l e v e l , the e a r l y f i s h canner ie s were dependent on the Indians as pr imary s u p p l i e r s . 1 ^ The c o l o n i s t s were o r i g i n a l l y small in number and 8 were s t i l l vastly outnumbered by native residents by mid-nineteenth century. However, increased settlement was fostered by the B r i t i s h government which, in 1849, leased the whole of Vancouver Island to the Hudson Bay Company on the condition that a B r i t i s h colony be estab-1i shed there. 1 ^  James Douglas, a Chief Factor with the Hudson Bay Company, had begun construction of Fort Vi c t o r i a in 184 3 !4 and, in 1849, moved there to take up the position of Chief Factor of Vancouver Island. While Douglas retained his position as Chief Factor of the Hudson Bay Company,AJ he was also appointed Governor of Vancouver Island. By 1855, the white settlement was s t i l l small, numbering under a thousand persons. The Indians on the Island numbered t h i r t y thousand. 1 6 Douglas was instructed by the Secretary of the Hudson Bay Company, Archibald Barclay, to purchase lands from the Indians for white settlement. 1 7 Between the years 1850 and 1854 Douglas concluded fourteen treaties with Vancouver Island t r i b e s , mostly in the southern region of the Island.18 The Indians' strong interest in f i s h i n g was c l e a r l y a consideration in negotiations with them and Douglas was instructed in this regard. After referring to the principle of compensation to be followed, Barclay writes, 9 The na t ive s w i l l be conf irmed in the pos ses s ion of t h e i r lands as long as they occupy and c u l t i v a t e i t themse lves , but w i l l not be a l lowed to s e l l or d i s -pose of them to any p r i v a t e per son , the r i g h t to the e n t i r e s o i l having been granted to the Company by the Crown. The r i g h t of f i s h i n g and hunt ing w i l l be cont inued to them, and when t h e i r lands are r e g i s t e r e d , and when they conform to the same c o n d i t i o n s with which o ther s e t t l e r s are r e q u i r e d to comply, 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 A f t e r commencing n e g o t i a t i o n s with the n a t i v e s , Douglas responded to B a r c l a y I informed the n a t i v e s tha t they would not be d i s t u r b e d in the pos se s s ion of t h e i r v i l l a g e s i t e s and enc lo sed f i e l d s , which are of small e x t e n t , and that they were at l i b e r t y to hunt over the un-occup ied 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 with the same freedom as when they were the so l e occupants of the c o u n t r y . 2 0 And, i n d e e d , the wording o f the t r e a t i e s themselves conf i rmed t h i s . The terms of each are s i m i l a r , the common wording b e i n g , The c o n d i t i o n o f or under s tand ing of t h i s s a l e i s t h i s , tha 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 use , f o r the use of our c h i l d r e n , and fo r those who may f o l l o w a f t e r us ; and the land 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 i s u n d e r s t o o d , however, tha t the land i t s e l f , wi th these small e x c e p t i o n s , becomes the proper ty of the white people f o r e v e r ; i t i s a l s o understood tha t we are at l i b e r t y to hunt over the unoccupied l a n d s , and to c a r r y on our f i s h e r i e s as f o r m e r l y . 2 1 Th i s a l lowed Indians to ma in ta in an economic s e l f - s u f f i c i e n c y as we l l as to cont inue to supply 10 food f i s h fo r the s e t t l e r s . -c) The Reserve Commissions The p o l i c y of s e t t i n g as ide lands for the Indians cont inued fo r some y e a r s . When B r i t i s h Columbia j o i n e d Confedera t ion in 1871, the r e s p o n s i b i l i t y fo r the Indians and lands re served to them was assumed by the f e d e r a l government. One f inds in the Terms of U n i o n t h a t The charge of 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 lands reserved fo 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 Government, and a p o l i c y as l i b e r a l as that h i t h e r t o pursued by the B r i t i s h Columbia Government s h a l l be cont inued by the Dominion Government a f t e r the Union . To c a r r y out such p o l i c y , t r a c t s o f land o f such extent as i t has h i t h e r t o been the p r a c t i c e of the B r i t i s h Columbia Government to a p p r o p r i a t e f o r t h a t purpose , s h a l l from time to time be conveyed by the Local Government to the Dominion Government in t r u s t f o r the use and b e n e f i t o f the Indians on a p p l i c a t i o n of the Dominion Government; and in case of disagreement 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 of land to be so g r a n t e d , the matter s h a l l be r e f e r r e d fo r the d e c i s i o n of the S e c r e t a r y of State for the C o l o n i e s . 2 2 The agreement foresaw a t r a n s f e r of the lands so f a r r e se rved to the Indians and those s t i l l to be set a s i d e . The a n t i c i p a t e d t r a n s f e r d id not take p lace f o r another s i x t y - s e v e n years23 D U t there 11 followed a series of Reserve Commissions established to determine the Indians' various locations and the sites they required for their occupations of f i s h i n g , hunting and berry-picking. These were to be allocated and noted s p e c i f i c a l l y . To this end successive Reserve Commissioners covered the province, v i s i t i n g with and negotiating with the numerous bands. The f i r s t of these was a three-person•Commission appointed in 1876. In 1877 the size of the Commission was reduced to that of a single Commissioner and i t so remained until 1898. The allo c a t i o n was, for the most part, completed by 1898 but the actual terms of transfer had s t i l l to be formulated. The Royal Commission for Indian A f f a i r s for B r i t i s h Columbia was appointed in 1913 to attempt to f i n a l i s e the extent of the lands to be transferred and also to deal with other issues which remained outstanding between the two levels of government. The commission, commonly referred to as the McKenna-McBride Commission, for the two government representatives, also travelled throughout the province to discuss local needs. A number of the fishing locations a l l o t t e d by e a r l i e r commissions were confirmed by the McKenna-McBride Commi ss i on.24 The original Reserve Commissioners were advised to pay close attention to established f i s h e r i e s . In the l e t t e r s of instruction there was a clear direction 12 not to d i s t u r b the Indians in the pos se s s ion of any v i l l a g e s , f i s h i n g s t a t i o n s , f u r - t r a d i n g p o s t s , s e t t l e -ments or 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 ached . . . . They should r a t h e r be encouraged to persevere in the i n d u s t r y or o c c u p a t i o n they are engaged i n , and with that in view should be secured in the posses s ion of the v i l l a g e s , f i s h i n g s t a t i o n s , f u r - p o s t s or o ther se t t l ements which they occupy in 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 H i s t o r y Claims of a b o r i g i n a l f i s h i n g r i g h t s have been r a i s e d in defence to charges under the f e d e r a l F i s h e r i e s  Act and i t s accompanying r e g u l a t i o n s . The n e g o t i a t i n g a c t i v i t i e s of James Douglas and the Reserve Commissioners have been argued as be ing s u p p o r t i v e of those c l a i m s . However, in any guise p r e s e n t e d , the argument tha t Indians should be f ree to f i s h as they are accustomed, wi thout f e a r of p r o s e c u t i o n , because of prev ious govern-mental promises and p o l i c i e s , has been s i n g u l a r l y unsucce s s fu l in the c o u r t s . In some i n s t a n c e s cour t s have g iven some r e c o g n i t i o n to the e x i s t e n c e of abo-r i g i n a l r i g h t s , t r e a t y r i g h t s , or e x c l u s i v e r i g h t s to f i s h i n c e r t a i n t r a d i t i o n a l a rea s . However, there has been a resounding statement from the cour t s tha t f e d e r a l l e g i s l a t i o n may supersede any r i g h t s e a r l i e r secured by the n a t i v e s . 2 6 The p o s i t i o n of the c o u r t s . c u r r e n t l y i s tha t the pr imary c o n s i d e r a t i o n i s the c o n s e r v a t i o n of the r e s o u r c e . 13 This was made clear by the Supreme Court of Canada in Jack et. a l . v. R e g i n a 2 7 which case has been followed a number of times since.28 i n o n e c a s e at the Provincial Court level in B r i t i s h Columbia, Regina v. Bradley Bob,29 the court found, in the band of which Bob was a member, an "exclusive right" to a fishery at a traditi o n a l location as a result of an acknowledgement by one of the Reserve Commissions. It was held, though, that that right was not synonymous with an absolute control over the resource and the fishery must s t i l l be subject to the i n t e r e s t s o f c o n s e r v a t i o n . The argument has been made that Indians have fishery rights which were recognised by e a r l i e r governments and which have never been extinguished.30 Today, the federal government talks of negotiated settlement. With respect to the courts, though, as Christopher Pibus points out, after a decade of court decisions that considered and rejected fi s h i n g rights of every description and source and consistently i d e n t i f i e d conservation values with the federal authority, i t seems pointless to assert native rights as a defence to prosecutions under the Fi sheri es Act.31 14 CHAPTER II BAND COUNCIL FISHERIES BY-LAWS a) I n t r o d u c t i o n It can be seen that s i n c e the time of the f i r s t t r e a t y arrangements wi th James Douglas in 1850, Indians have been concerned to ma in ta in and p r o t e c t t h e i r t r a d i t i o n a l access to the f i s h which s u s t a i n them, both n u t r i t i o n a l l y and c u l t u r a l l y . They have been unsucces s fu l de fending those r i g h t s i n the c o u r t s , and they have not yet secured p o l i t i c a l r e c o g n i t i o n of those r i g h t s . The salmon were once an abundant r e s o u r c e , the f i s h b e i n g , in lu sh y e a r s . . . s o p l e n t i f u l tha t men were a f r a i d to en te r the r i v e r l e s t t h e i r boats be c a p s i z e d by s choo l s o f f i s h r u s h i n g through the waters ,32 but the salmon have s i n c e been dangerous ly o v e r f i s h e d and mismanaged. Competing demands fo r a d i m i n i s h i n g re source have caused a great deal of c o n t r o v e r s y among the v a r i o u s user groups and a he ightened awareness o f the need fo r c o n s e r v a t i o n . Given the i m p e r i l l e d s t a t e of the f i s h e r y , the i s sue i s no longer on ly guaranteed a c c e s s , but a l so p a r t i c i p a t i o n in the management and c o n t r o l of the r e -source that there might be a f i s h e r y f o r p o s t e r i t y . There e x i s t s in the Indian Act a p r o v i s i o n which a l lows band c o u n c i l s to pass by-laws f o r the a d m i n i -s t r a t i o n of c e r t a i n re se rve m a t t e r s , f i s h e r i e s being 15 among the enumerated subjects. S p e c i f i c a l l y , 81. The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or a l l of the following purposes, namely; (o) the preservation , protection and management of fur-bearing animals, f i s h and other game on the reserve;...3 3 The provision is not a new one. It has existed in i t s present form since 1951.34 However, i t is not a device which has been commonly used by band councils in B r i t i s h Columbia. When used in the past, i t has been for limited purposes such as, for example, a resolution passed by a band to require non-band members to obtain permits from j the band council before fishing on reserve lands. In more recent years there would appear to have been a recognition that the by-law could very well be a useful instrument to help natives gain some control over theri reserve f i s h e r i e s . By-laws drawn and passed by some bands in the last few years have gone far beyond the s t i p u l a t i o n that non-band members obtain permits before engaging in reserve f i s h i n g . A small number purport to give the band council and their appointed management personnel what amounts to total control of the fishery on the reserve, including habitat protection and anti-pol1ution provi si ons. The v a l i d i t y and strength of the by-laws are now being tested in the courts in B r i t i s h Columbia in defence to prosecutions under the Fisheries Act and Regulations. The primary contention is that the by-law is a valid 16 statutory instrument made pursuant to the Indian Act, a federal statute. Being a federal statute, the Indian  Ac t is of equal l e g i s l a t i v e weight to the Fi sheries Act. A by-law under this provision is of spe c i f i c application; that i s , as to subject matter and location and should, therefore, take precedence over the application of the Fisheries Act, which is of more general application, on reserves where a by-law is in force. This, i t is argued, would be in accord with the principle of statutory interpretation which would allow two apparently con-f l i c t i n g statutory instruments to co-exist without repealing either one. There have been five cases decided since 1982 where the existence of a band by-law has been raised as a defence. The by-laws involved in the f i r s t three were those of the Squamish and Bridge River bands. The two most recent cases involved two dif f e r e n t by-laws of the Cowichan band. These cases w i l l be discussed in some detail but i t w i l l be of interest to f i r s t examine the nature and content of some of the current by-laws in force among bands in B r i t i s h Columbia. b) Description of Current By-Laws In spite of a current interest in the use of by-laws to a s s i s t in Indian fishery management, use is not wide-spread in B r i t i s h Columbia. Since the provision came into e f f e c t in 1951, i t would appear from a By-law Register maintained by the Department of Indian and Northern 17 A f f a i r s , that only about fourteen fis h e r i e s by-laws are in existence, two of those relating to fi s h e r i e s conser-vation o f f i c e r s , rather than to fi s h e r i e s management per s_e.35 While the by-laws are registered pursuant to the Statutory Instruments Act, regulation makes them exempt from publication in the Canada Gazette.36 Texts of the various by-laws, then, are available only through the graces of the Department of Indian and Northern A f f a i r s or the respective band councils. The rationale for the lack of a publication requirement is that a limited number of persons are l i k e l y to be affected by the by-law although, as w i l l be seen, the more recent f i s h e r i e s by-laws could have a pronounced effect on a l l parties concerned with a particular f i s hery. There are s i m i l a r i t i e s among the by-laws and emerging patterns are apparent. Beginning with the Squamish band by-law, passed and approved in 1977, the current by-laws are much more comprehensive and sophisticated than those of e a r l i e r years. Between 1956 and 1965, six bands in B r i t i s h Columbia (the Okanagan; Cowichan; Kispiox; Stellaquo; Moricetown; and Bella Coola) made use of the by-law provision in the Indian Act.37 These e a r l i e r by-laws have very l i t t l e substantive provision. The clear intent of the by-laws is to control fi s h i n g on the reserve by non-band members. The Cowichan band's 1956 by-law is representative of this group and a 18 section similar to the following appears in each. That i s , No person, other than a member of the band, shall be permitted to fi s h on the reserve without f i r s t obtaining a written permit to do so from the person authorized by the Council to grant such permission.38 The Bella Coola by-law, 1964, refers to camping permits as well as fishing permits, as does the Morice-town band by-law, 1962. The Stellaquo band by-law, 1960, also requires non-band members to obtain permits for hunting on the reserve. With respect to f i s h i n g , i t is noted that the five of these six e a r l i e s t by-laws which were examined a l l contained a reference which made applicable on the reserve fis h i n g regulations otherwise applicable in the province. In other words, the only sa l i e n t feature was the intention to r e s t r i c t and control access to the reserve fishery by non-band members. No further f i s h e r i e s by-laws were passed until the Squamish band introduced theirs in 1977. They were followed by the Tahltan in 1979; the Nimpkish in 1979 (although the by-law was not approved until 1981); the Upper Nicola, Qualicum and Bridge River bands in 1980; Nitinaht and Sheshaht in 1982; and, most recently, the Cowichan band in 1983. The by-laws of the Nitinaht 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 from the remaining by-laws, of which the Squamish band's is the prototype. There w i l l be some discussion of the v a l i d i t y of these by-laws and the 19 purported extent of authority deriving from them, but let us f i r s t examine their substance. The Squamish by-law, termed By-law #10, states in the f i r s t section that "Squamish Indian Band Waters" means a l l water situated upon or within the boundaries of Reserves set aside for the use and benefit of the Squamish Bandoflndians.39 Fishery o f f i c e r s are intended to be appointed by the band council as enforcement and regulatory o f f i c e r s pursuant to the by-law.40 Unlike some of the other bands, which allow limited f i s h i n g by non-band members, the Squamish absolutely prohibits f i s h i n g by other than Squamish band members.41 The substantive regulatory portions of the by-law refer to the prohibition of the destruction of eggs and very young salmon;42 stream obstruction ;43 and the addition of harmful substances and debris to "any water frequented by fish".44 There is a section which purports to give the band manager the authority to make extensive regulations over a l l aspects of management and conservation including habitat protection; water pollu t i o n ; fishing vessels and gear; catch and possession; and quotas and closed times.45 On comparison of this by-law with the Fisheries Act, one finds that a great many of the sections were tran-scribed from the Act, some with minor changes, such as power given to the Minister.of Fisheries and Oceans in the 20 Fisheries Act being ascribed to the band manager or band council. Thus, the definitions of " f i s h " and "fishery" appear as in the Fisheries Act. Section 4 of the by-law , r e l a t i n g to salmon fry, parr and smolt is as in the Fisheries Act.46 Section 8 of the by-law appears in a section of the Fisheries Act relating to the construction of fishways.47 j n e requirement to remove "stakes, posts, buoys or other materials placed for fishing purposes" also appears in similar form in the Act.48 Sections 10 through 13 of the by-law a l l appear in the Act^9 s o that very l i t t l e of the by-law and, in fact, nothing of real substance, is original or p a r t i c -ular to that band. This fact wi l l be considered l a t e r with respect to the v a l i d i t y of this type of by-law. Section 14 of the by-law is necessarily the most s i g n i f i c a n t section when looking to the management of the fishery. This is the section which gives the band manager the authority to make regulations further to the by-law. The same provision appears in the Fisheries Ac t, section 34, with the following exceptions. The regulatory power under the Act resides in the Governor-in-Counci1. Sub-section (a) of section 34 refers to "seacoasts and inland f i s h e r i e s " rather than just " f i s h e r i e s " . There are references in section 34 to licencing and to i n t e r -provincial transportation of f i s h . Otherwise, the regu-latory power is i d e n t i c a l . That particular section of the by-law invites challenge as to i t s v a l i d i t y in re-l a t i o n t o t h e a u t h o r i t y g i v e n a band by way o f s e c t i o n 81 o f t h e I n d i a n A c t and i t , t o o , w i l l be d i s c u s s e d f u r t h e r . The " B y - l a w f o r t h e P r e s e r v a t i o n , P r o t e c t i o n and M a n a g e m e n t o f F i s h on T a h l t a n R e s e r v e s " , p a s s e d i n 1 9 7 9 , i s v i r t u a l l y t h e same as t h e S q u a m i s h b y - l a w . The e x -c e p t i o n i a a r e f e r e n c e t o a " t r i b a l " c o u n c i l and " t r i b a l " w a t e r s w h i c h , i n c o n t e x t , seems t o i m p l y an a p p l i c a t i o n t o a u n i t l a r g e r t h a n t h e b a n d . The N i m p k i s h b y - l a w , p a s s e d by t h e N i m p k i s h band c o u n c i l i n 1 9 7 9 , b u t n o t a p p r o v e d by t h e M i n i s t e r u n t i l 1 9 8 1 , a g a i n i s s i m i l a r t o t h a t o f t h e S q u a m i s h b a n d . The N i m p k i s h , h o w e v e r , make p r o v i s i o n f o r o n - r e s e r v e f i s h i n g by n o n - b a n d members w h e r e t h e r e i s e x p l i c i t p e r -m i s s i o n by t h e band c o u n c i l . T h e r e i s a f u r t h e r p r o v i s i o n t h a t 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 t o s e l l f r e s h o r p r e s e r v e d f i s h , o r w a s t e o r o t h e r w i s e d i s p o s e o f f i s h c a u g h t i n f o o d f i s h e r y w i t h i n N i m p k i s h Band w a t e r s . In 1980 t h e Q u a l i c u m I n d i a n b a n d p a s s e d a b y - l a w w h i c h i s i d e n t i c a l t o t h e S q u a m i s h b y - l a w . The U p p e r N i c o l a I n d i a n band b y - l a w , a l s o p a s s e d i n 1 9 8 0 , w h i l e v e r y s i m i l a r t o t h e S q u a m i s h p r o t o t y p e , c a r r i e s a w i d e r d e f i n i t i o n o f " b a n d w a t e r s " . I t r e -s e m b l e s t h e d e f i n i t i o n i n t h e o t h e r b y - l a w s i n t h a t band w a t e r s means a l l w a t e r s i t u a t e d upon o r w i t h i n 22 the boundaries of Reserves set aside for the use and benefit 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 fishing waters; more s p e c i f i c a l l y those areas in different water sheds, lakes and streams.50 This appears to be an attempt to include o ff-reserve waters to which the band believes i t has abo-r i g i n a l claim. This raises the question of whether the by-law can have an " e x t r a - t e r r i t o r i a l " , or off-reserve, reach. The penalty sections in the various by-laws are generally consistent with the maximum one hundred dollar fine and/or t h i r t y days of imprisonment provided for in section 81(r) of the Indian Act. The Upper Nicola band has, however, exceeded that by stating a minimum fine of two hundred dollars for a f i r s t offence and/or imprisonment of one to two months. The penalty is stated in the by-law as "not less than $200.00; and not more than $100.00", apparently a typographical error. For subsequent offences the penalty is stated as a fine of not less than $500.00 and not more than $200.00 Tjagain, an apparent e r r o r ] , or to imprisonment for a term of not less than 3 months, and not more than 6 months, or to both such fine and imprisonment. 51 As the j u r i s d i c t i o n to pass by-laws derives from section 81 of the Indian Act this section is c l e a r l y in excess of j u r i s d i c t i o n . It is further stated in 23 the by-law that every f i n e or f o r f e i t u r e goes to the band. As with the T a h l t a n and the Nimpki sh , the Upper N i c o l a a l low f i s h i n g by permit fo r non-band members.52 There i s the s e c t i o n which g ives to the band manager and c o u n c i l the r e g u l a t o r y a u t h o r i t y s i m i l a r to that which the Governor in C o u n c i l has in the Fi s h e r i es A c t , 63 but there i s a l s o a f i n a l c l ause to the by-law which s t a te s that The Upper N i c o l a Indian Band C o u n c i l , persuant ( s i c ) to the Indian Act may from time to time 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 ) wi th t h i s By-law as they may deem necessary or a d v i s a b l e f o r the purpose of 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 of t h i s By-law a c c o r d i n g to t h e i r t rue 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 and, wi thout r e s t r i c t i n g the g e n e r a l i t y o f tha t power.54 The Br idge R i v e r Indian Band F i s h i n g By-law No. 1-1980 i s s i m i l a r t o , but l e s s comprehensive than the Squamish by- l aw. It seems to attempt an e x t r a -t e r r i t o r i a l reach in i t s d e f i n i t i o n of band wate r s , which are s a id to be a l l waters s i t u a t e d upon, w i t h i n the boundar ies o f re serves or o therwise 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 Indian Government or as set a s ide f o r the e x c l u s i v e use and b e n e f i t of the Br idge R i v e r Band of Indians .55 The band c o u n c i l a l s o attempts to g ive i t s e l f an ongoing power to r e g u l a t e in the f o l l o w i n g 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 wi th t h i s by-law as they may deem neces sary or a d v i s a b l e f o r the purpose of 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 of t h i s by-law a c c o r d i n g to t h e i r t rue i n t e n t and 24 for supplying any deficiency and without r e s t r i c t i n g the generality of that power.56 The Cowichan Indian band's new by-law, which replaces the 1956 by-law, is the most recent by-law to be approved by the Minister. It has been in effect only since 1983. It defines "deleterious substance" and " f i s h habitat" and declares, in a very broadly worded section, that No person shall carry on any work or undertaking that results in the harmful a l t e r a t i o n , destruction or . d i s r u p t i o n l o f f i s h habitat.57 Largely, the by-law is similar to the others mentioned, although there are some variations. There is one other "type" of f i s h e r i e s by-law, exemplified by those of the Nitinaht and Sheshaht bands, both approved in 1982. They are v i r t u a l l y identical and envisage co-operative management with the Department of Fisheries. Enforcement and management authority is given to a band f i s h e r i e s conservation o f f i c e r who is to determine an allowable catch; designate openings and closings; and specify gear type. More in t e r e s t i n g , the f i s h e r i e s conservation o f f i c e r is to. c o l l e c t catch s t a t i s t i c s and "shall provide any information requested by any ^federal] f i s h e r i e s o f f i c e r . "58 There is pro-vision for a j o i n t management committee, consisting of the conservation o f f i c e r and his assistants and an equal number of Department of Fisheries and Oceans appointees, to "make recommendations to the Band Council concerning 25 the f i s h e r y " . J 9 There are none of the p r o v i s i o n s seen in the Squamish-type of by-law r e l a t i n g to r i v e r ob-s t r u c t i o n s , or p o l l u t i o n c o n t r o l or h a b i t a t p r o t e c t i o n . The c l e a r i n t e n t i o n of the Squamish-type of by-law i s to take complete c o n t r o l over a l l aspects of f i s h e r i e s and h a b i t a t management. Here , there i s an expressed d e s i r e to work wi th f e d e r a l f i s h e r i e s personnel r a t h e r than exc lude them. The N i t i n a h t and Sheshaht by- l aws , however, are the on ly two in t h i s v e i n . c) The Requirement f o r M i n i s t e r i a l Approval of the By-laws While s e c t i o n 81 o f the Indian Act g ives a band c o u n c i l the power to pass f i s h e r i e s b y - l a w s , s e c t i o n 82 o f the Act i s s i g n i f i c a n t . That i s , the M i n i s t e r . o f Indian A f f a i r s and Northern Development must approve any proposed by- law. The M i n i s t e r has f o r t y days from the time a s e c t i o n 81 by-law i s forwarded to him to review i t and, unless i t i s d i s a l l o w e d w i t h i n that f o r t y day p e r i o d , the by-law comes i n t o f o r c e . 6 0 Thus , the a u t h o r i t y of a band to pass such a by-law i s c i r c u m s c r i b e d not o n l y by s e c t i o n 81, but a l s o by the requirement of M i n i s t e r i a l a p p r o v a l . A review of c e r t a i n of the by-laws i n d i c a t e s tha t the f o r t y - d a y p e r i o d i s too shor t f o r the M i n i s t e r to have an o p p o r t u n i t y to p r o p e r l y view a l l by- l aws . In p r a c t i c e , the M i n i s t e r views the by-law and forwards i t to the Legal S e r v i c e s Department fo r comment. While there i s no formal review by F i s h e r i e s o f f i c i a l s , there are 26 meetings at a deputy ministerial level to review the by-1aws.^ 1 It is interesting to note from the Department's By-law Index that, in recent years, the number of by-laws which have been rejected is equal to the number of by-laws currently in force. Except for one, a l l of those by-laws disallowed were disallowed in 1982 and 1983. Of these, one, the by-law of the Gitwangak band is not very di f f e r e n t from the Squamish-type of by-laws. It does, however, refer to a "Tribal Council" and eight member bands, rather than to a single band council. Two identical by-laws, those of the Toquaht and Hesquiat bands, were disallowed in 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 Nitinaht and Sheshaht bands and, indeed, a l l four of these bands are located in the Nanaimo Agency. The two which were rejected, however, make l i b e r a l reference to "aboriginally defined t e r r i t o r i a l f i s h e r i e s Reserve grounds and waters." The reference is to t r a -d i t i o n a l f i s h i n g grounds which do not l i e within reserve boundaries and, as such, are a contentious issue with the federal government. There is nothing in the Indian Act to suggest that a band council can exercise off-reserve administrative control. The Qualicum band attempted to have a by-law approved which would have repealed their 1980 by-law but the attempt was unsuccessful. The proposed by-law would have applied to " t r a d i t i o n a l " band waters without 2 7 l i m i t i n g those to waters bounded by the r e s e r v e . In terms of enforcement , proposed powers would have been s i m i l a r to those granted f i s h e r i e s o f f i c e r s under the F i s h e r i e s A c t : tha t i s , powers of search over b u i l d i n g s , v e h i c l e s and v e s s e l s ; and the a u t h o r i t y to enter p r i v a t e p r o p e r t y . There i s a l so a power of a r r e s t and the c r e a t i o n of a charge of w i l f u l o b s t r u c t i o n of a band f i s h e r i e s c o n s e r v a t i o n o f f i c e r . Whether the d i s a l l o w a n c e of the m a j o r i t y o f by-laws proposed over the l a s t two years i s one way of c o n t r o l l i n g the Indian e f f o r t s to manage t h e i r - f i s h e r y - , or whether i t i s the view of the Department tha t the by-laws c u r r e n t l y be ing proposed a r e , on the face of i t , beyond the scope of s e c t i o n 81, i s not c l e a r . However, with the e x c e p t i o n o f the N i t i n a h t and Sheshaht " c o -o p e r a t i v e " type of b y - l a w , the o n l y o ther by-law approved s i n c e 1980 has been the Cowichan by- law. And, in that p a r t i c u l a r c a se , i t should be noted tha t the by-law passed "by d e f a u l t " , or wi thout having been reviewed w i t h i n the f o r t y - d a y p e r i o d . 6 2 i t i s d i f f i c u l t to say whether the by-law would have passed had i t gone through a customary review procedure . Can i t be, t h e n , that f i s h e r i e s by-laws c o u l d be an e f f i c a c i o u s means f o r Indians to gain the much sought a f t e r c o n t r o l over t h e i r f i s h e r i e s ? C e r t a i n l y one must keep in mind the m i n i s t e r i a l veto b u t , where by-laws are in f o r c e , what e f f e c t w i l l the cour t s g ive them? What e f f e c t should the cour t s g ive them? And, 2 8 p r a c t i c a l l y , i s there the c a p a c i t y to ably manage a f i s h e r y re source by a t t empt ing to c o n t r o l events only w i t h i n the re se rve boundar ie s? As mentioned e a r l i e r , by-laws have been r a i s e d in at l e a s t four c o u r t s i n B r i t i s h Columbia in defence to charges under the Fi s h e r i es A c t . The f i r s t three dec ided cases formed a c l u s t e r which was drawn upon in a rgu ing the on ly o ther two cases so f a r d e a l i n g wi th t h i s p o i n t . The cases are i n c o n s i s t e n t one wi th another and a thorough exami-n a t i o n i s neces sary to attempt to unders tand not on ly what happened, but a l s o what might be expected in fu ture ca se s . The i n t e r e s t to n a t i v e s i s whether the by-law can be an a p p r o p r i a t e v e h i c l e f o r the use to which i t i s now bei ng put . A f u l l e r d i s c u s s i o n o f the f o u r t h and f i f t h cases w i l l serve to i l l u m i n a t e many aspects of the Indian f i s h e r y c l a i m s ; of the d i f f i c u l t i e s of re source c o n s e r -v a t i o n v i s ct v i s those c l a i m s ; and the p r a c t i c a l l i m i -t a t i o n s o f management by way of a by- law. 29 CHAPTER III CASE ANALYSIS a) Regina v. L e e c h ; Regina v. Baker ; Regina v. B a s i l The appearance i n the cour t s of the f i s h e r i e s by-law defence to f e d e r a l f i s h e r i e s p r o s e c u t i o n s i s so recent tha t i t i s not s u r p r i s i n g tha t the cases dec ided so far are not e n t i r e l y s a t i s f a c t o r y i n e x p l a i n i n g i f , when, or how a by-law might take precedence over F i s h e r i e s Act or R e g u l a t i o n p r o v i s i o n s . V i r t u a l l y the same argument has been advanced in a l l c a s e s , but the argument has been v a r i o u s l y r e c e i v e d and i n t e r p r e t e d . The f a c t s and apparent r ea son ing o f the cases w i l l be o u t l i n e d . It w i l l be i m p o r t a n t , t h e n , in o r d e r to see i f fu ture j u d i c i a l de-c i s i o n s can be expected to g ive e f f e c t to the b y - l a w s , to examine the bases o f the d e c i s i o n s . The f i r s t d e c i s i o n was handed down by His Honour Judge Gordon on May 12, 1983, at L i l l o o e t , B . C . , in the case of Regina v. Wal ter Leech . Mr. L e e c h , a member of the Br idge R i v e r Indian band, was charged with a breach of s e c t i o n 5(2) of the B r i t i s h Columbia F i s h e r y (Genera l ) R e g u l a t i o n s , which p r o h i b i t s p o s s e s s i o n o f sockeye , p i n k , or chum salmon from non-t i d a l water s . While aware o f the p r o v i s i o n in the R e g u l a t i o n s which would have a l lowed him a food f i s h p e r m i t , Mr. Leech had not o b t a i n e d such a p e r m i t . The Br idge R i v e r band had had a by-law in e f f e c t s i n c e 1980, 30 as has been p r e v i o u s l y d e s c r i b e d . It was argued on beha l f of Mr. Leech that the by-law c o n s t i t u t e d a more p a r t i c u l a r c o n s e r v a t i o n scheme w i t h i n the reserve area than d i d the F i s h e r i e s Regu la t ions so tha t the by-law should take precedence over the a p p l i c a t i o n of the R e g u l a t i o n s . The c o u r t found the by-law and the R e g u l a t i o n s to be of equal l e g i s l a t i v e a u t h o r i t y and examined them with a view to d e t e r m i n i n g i f they cou ld c o - e x i s t . It was he ld that they c o u l d , the by-law t a k i n g e f f e c t where i t was more d e t a i l e d and r e s t r i c t i v e than the R e g u l a t i o n s . However, i t i s c l e a r t h a t the by-law cannot d i s p l a c e 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 are o f g e n e r a T a p p l i c a t i o n . N e i t h e r can the by-law d i s p l a c e the e f f e c t o f those p r o v i s i o n s in the F i s h e r i e s Act R e g u l a t i o n s which r e g u l a t e how a c l a s s of people s h a l l be excepted from those general pro-h i b i t o r y p r o v i s i o n s . 63 Th i s i s c o n s i s t e n t with the view that The Fi s h e r i es Act i s one of general a p p l i c a t i o n to a l l per sons . I ts purpose o b v i o u s l y , i s to manage and pre serve f i s h e r y s tocks w i t h i n our own sea coas t and i n l a n d f i s h e r i e s . The Indian Act a p p l i e s to Indians and t h e i r Bands. It i s not of as broad an a p p l i c a t i o n as the F i s h e r i e s  A c t . Its p r o v i s i o n s , so f a r as they are not i n c o n s i s t e n t wi th the Fi s h e r i es A c t , must be read as s u b j e c t to tha t s t a t u t e ' s p r o v i s i o n s . 6 4 The c o u r t found tha t the Br idge R i v e r by-law c o u l d not be s a i d to be more s p e c i f i c than the Regu-l a t i o n s . Ra ther , " the By-law shows tha t of i t s e l f i t does v i r t u a l l y n o t h i n g to r e g u l a t e f i s h i n g w i t h i n the 31 des igna ted waters".65 And, in r e f e rence to the s e c t i o n of the by-law which seemingly g ives the band c o u n c i l a running c o n t r o l of the f i s h e r y ,66 i t was s a i d that In f a c t , the By-law purport 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 proper management and c o n t r o l of 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 of f i s h . " No such r e g u l a t i o n s , however, have ever been passed . F u r t h e r , i t would appear t h a t t h i s i s an attempt 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 enact l e g i s l a t i o n o t h e r than in accordance wi th s e c t i o n 81 and 82 of the Indian A c t . At b e s t , the By-law i s a s tatement of 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 purposes ment ioned . In e f f e c t , there i s no r e g u l a t i o n o f the f i s h e r y which emerges from t h i s p a r t i c u l a r B y - l a w . 6 7 Mr. Leech was c o n v i c t e d . The second case on t h i s p o i n t was that o f Regina v .  Eugene Baker , dec ided in County Court in Vancouver by the Honourable Judge Sheppard on June 3, 1983. In t h i s case the accused was a member o f the Squamish Indian band and p l e a d e d , in defence to the c h a r g e s , the Squamish band b y - l a w , a l r e a d y d e s c r i b e d . Mr. Baker was charged wi th two c o u n t s , one o f f i s h i n g by net f o r pink salmon in the Squamish R i v e r , in n o n - t i d a l w a t e r s , wi thout a l i c e n c e . Th i s was a l l e g e d l y i n c o n t r a v e n t i o n o f s e c t i o n 40(1) of the B r i t i s h Columbia F i s h e r y (Genera l ) R e g u l a t i o n s . The second count was tha t of c a t c h i n g and having in h i s pos se s s ion pink salmon from n o n - t i d a l waters of the Squamish R i v e r , a l l e g e d l y c o n t r a r y to s e c t i o n 5(2) of the B r i t i s h Columbia F i s h e r y (Genera l ) R e g u l a t i o n s . 32 Although the Squamish by-law was the t h r u s t of the d e f e n c e , the defence argument conc luded in terms of mistake of f a c t as aga ins t mistake of law. That i s , the accused had been f i s h i n g at a l o c a t i o n w h i c h , though a p p a r e n t l y o f f - r e s e r v e , he b e l i e v e d to be o n - r e s e r v e , or at l e a s t a t r a d i t i o n a l f i s h i n g a rea . I f , i t was a rgued , tha t l o c a t i o n had been o n - r e s e r v e , Mr. Baker ' s a c t i v i t i e s would have been covered by the p e r m i s s i v e s e c t i o n o f the Squamish band b y - l a w , which a l lows members to f i s h "at any time and by any means except by the use of r o c k e t s , e x p l o s i v e m a t e r i a l s , p r o j e c t i l e s , or s h e l l s " . 6 8 The mistake o f f a c t was o n l y as to whether or not he had been o n - r e s e r v e at the t ime . The c o u r t held tha t the "mi s t ake " had been one of mixed f a c t and law and tha t t h a t e n t i t l e d Mr. Baker to be a c q u i t t e d of the charge s . In a r r i v i n g at tha t p o i n t , of c o u r s e , i t was necessary to f i n d tha t the by-law would take precedence over the F i s h e r i e s Act Regu la t ions i n the c i r c u m s t a n c e s . U n f o r t u n a t e l y , there i s l i t t l e d i s c u s s i o n of the r a t i o s u p p o r t i n g the a p p l i c a t i o n o f the by-law in precedence over the R e g u l a t i o n s . The cour t merely r e f e r s to one case c i t e d by the d e f e n c e , Fa lardeau e t . al . v. Church,69 and takes i t from tha t case t h a t , where two s t a t u t e s are i n c o n s i s t e n t , " i t must be seen i f one cannot be read as a q u a l i f i c a t i o n of the o t h e r " . 7 0 Then , the e n t i r e t y of the c o u r t ' s comment with r e spec t to the by-law v i s \ v i s the Fi s h e r i e s A c t , a f t e r f i n d i n g that the c h a r g i n g s e c t i o n r o f the Regu la t ions were c l e a r l y 33 in c o n f l i c t wi th s e c t i o n 6 of the by- l aw, was as f o l l o w s : My i n t e r p r e t a t i o n of the two sets of r e g u l a t i o n s i s tha t the Indian Band by-law is e f f e c t i v e w i t h i n the boundar ies of the Reserve and that the a p p l i c a t i o n of the Fi shery Act ( s i c ) and r e g u l a t i o n s in a case where a p r o p e r l y d ra f t ed and enacted Indian Band by-law is in e x i s t e n c e ceases at the boundary o f the re serve i f the two are in c o n f l i c t . Thus , I come to the c o n c l u s i o n that i f the a p p e l l a n t had been f i s h i n g in water w i t h i n the boundary of the Reserve , he would have been p r o t e c t e d from the charges l a i d by the by- law.71 The t h i r d case was a p r o v i n c i a l cour t d e c i s i o n by His Honour Judge F r i e s e n at M a t s q u i , B . C . , October 26, 1983, Regina v. Roger Steven B a s i l . In a c q u i t t i n g the a c c u s e d , the c o u r t s t a t e d i t was a p p l y i n g the r ea son ing in R. v. Baker but tha t i s not e v i d e n t from a r ead ing o f the case . Mr. B a s i l faced four c o u n t s : u n l a w f u l l y t r a n s -p o r t i n g salmon wi thout a l i c e n c e , c o n t r a r y to s e c t i o n 7(1) of the R e g u l a t i o n s ; u n l a w f u l l y b r i n g i n g salmon caught above a commercial boundary to a p lace below the boundary, c o n t r a r y to s e c t i o n 26(1) of the R e g u l a t i o n s ; f i s h i n g fo r and. r e t a i n i n g salmon from n o n - t i d a l w a t e r s , c o n t r a r y to s e c t i o n 5(2) of the R e g u l a t i o n s ; and having an amount o f salmon roe in h i s po s se s s ion in excess of a s t a t ed l i m i t , c o n t r a r y to s e c t i o n 37 .1(1) of the R e g u l a t i o n s . Mr. B a s i l , w h i l e not a band member, was f i s h i n g on the Br idge R iver r e s e r v e , by permi s s ion of the C h i e f , on a day when f i s h i n g was a l lowed by the band c o u n c i l . C o n s e q u e n t l y , i t was argued tha t the f i s h i n g was lawful 34 p u r s u a n t t o the B r i d g e R i v e r band by- l aw and t h e r e f o r e Mr. B a s i l was not sub jec t t o the p r o v i s i o n s of the F i s h e r i e s  Act Reg uI at I on s. T h i s was t h e same b y - l a w as was c o n s i d e r e d in R. v . Leech and the c o u r t In B a s i l was r e f e r r e d t o both the Leech and Baker d e c i s i o n s . In h i s rea sons , His Honour Judge F r i e s e n c i t e d t h e r e l e v a n t p o r t i o n s of the two e a r l i e r d e c i s i o n s . He r e c o g n i s e d H i s Honour Judge G o r d o n ' s view t h a t the Br idge R i v e r by-law was not r e g u l a t o r y of f i s h i n g In band waters and t h a t the by-law appeared only to express an i n t e n t i o n t o r e g u l a t e in the f u t u r e . Al though in the Leech case the c o u r t d id not f i n d any c o n f l i c t between the R e g u l a t i o n s and the by- law, s t a t i n g t h a t the by-law was not r e g u l a t o r y , the c o u r t in Ba s iI r e f e r r e d to the Leech case as i f c o n t r a d i c t i o n had been found. In r e f e r r i n g t o the Baker case a f t e r o u t l i n i n g L e e c h . i t Is s a id t h a t " aga in the c o u r t was concerned with a c o n f l i c t between R e g u l a t i o n s under the F i s h e r i e s Act and a p r o v i s i o n of a Band Counc i l B y - l a w " . 7 2 T h i s Is no tab le because Baker , which Bas i I p r e f e r s , makes It c l e a r t h a t t h e r e must f i r s t be c o n f l i c t i n g p r o v i s i o n s before one looks t o see which governs . In Baker . i t was s p e c i f i c a l l y s t a ted t h a t s e c t i o n 6 of t h e Squamish b y - l a w , p e r m i t t i n g band members t o f i s h except by s t a t e d p r o h i b i t e d means, c l e a r l y c o n f l i c t e d w i t h those p r o v i s i o n s of the R e g u l a t i o n s which p r o h i b i t unl icenced n e t - f i s h i n g In n o n - t i d a l w a t e r s and p o s s e s s i o n of p i n k salmon from n o n - t i d a l water s .73 35 B a s i l does not succeed in d e l i n e a t i n g a s i m i l a r c o n f l i c t . As s t a t e d , Mr. B a s i l was charged with four o f f e n c e s . Without examining the by-law v i s & v i s each charge , the cour t says on ly that the "By-law must, however, be s u f f i c i e n t l y s p e c i f i c i f i t i s to o v e r r i d e the general p r o h i b i t i o n i n R e g u l a t i o n 5" .74 That r e f e r s to f i s h i n g f o r salmon in n o n - t i d a l water s . The o ther charges r e l a t e to po s se s s ion and t r a n s p o r t a t i o n o f salmon o f f - r e s e r v e . While an argument tha t i f the salmon are l a w f u l l y caught o n - r e s e r v e , they can 1 awful 1y be taken o f f - r e s e r v e might be a n t i c i p a t e d , the cases which Baker and B_a_sjJ_ f o l l o w would i n d i c a t e tha t each p r o v i s i o n ' must be s t u d i e d to see i f i t can stand compat ib ly wi th the o t h e r l e g i s l a t i o n . Reference i s made to j u s t one s e c t i o n o f the Br idge R i v e r b y - l a w , and t h a t i s to a genera l p e r m i s s i v e s e c t i o n in the f o l l o w i n g terms: Band members and non-band 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 Br idge R i v e r Indian 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 Br idge R i v e r Indian B a n d . 7 5 There was no mention of any o ther p r o v i s i o n of the by- law. The cour t s t a t e d t h a t i t was choos ing to f o l l o w Baker , "which holds that such a By-law can d i s p l a c e R e g u l a t i o n s under the F i s h e r i e s A c t " . 7 6 Baker , however, he ld tha t the by-law a p p l i e d o n l y where i t s p r o v i s i o n s c o n f l i c t wi th those of the Act or R e g u l a t i o n s . Basi1 goes c o n s i d e r a b l y f a r t h e r than tha t in i t s d e c i s i o n that s e c t i o n 4 " i s r e g u l a t o r y in c h a r a c t e r , and as such i s 36 s u f f i c i e n t to render the Fi s h e r i es Ac t Regu la t ions i n o p e r a t i v e w i t h i n the Br idge R iver Indian Reserve" .77 That i s , on the bas i s of one s e c t i o n o f the b y - l a w , the e n t i r e o p e r a t i o n of the F i s h e r i e s Act and Regu la t ions was he ld suspended w i t h i n re serve b o u n d a r i e s . b) The Bas i s in Law for the D e c i s i o n in Regina v. Baker The c o u r t in R. v. Baker d i d not c l e a r l y o u t l i n e the process of i t s r ea son ing but d i d s t a t e that i t r e l i e d on a p a r t i c u l a r case c i t e d , t h a t of Fa la rdeau e t . a l . v. Church , 78 a d e c i s i o n o f the B r i t i s h Columbia Supreme Court i n 1972. The p l a i n t i f f s in that case were su ing f o r damages done to crops by the d e f e n d a n t ' s t r e s p a s s i n g c a t t l e . S t a tu te s govern ing the l i a b i l i t y were in c o n f l i c t . A p r o v i n c i a l s t a t u t e , The Trespass A c t , s t i p u l a t e d tha t a landowner would have no r i g h t to o b t a i n damages fo r c a t t l e t re spa s s i f the land was not l a w f u l l y f enced . However, the township in which the p l a i n t i f f s - land was l o c a t e d had passed a by-law under a u t h o r i t y of The  M u n i c i p a l Act to deal wi th the impounding o f animals runn ing at 1arge. The by-law made i t unlawful f o r any person to a l low c a t t l e to t re spa s s on p r i v a t e or p u b l i c land w i t h i n the township . The p l a i n t i f f s contended , t h e r e f o r e , that the p r o v i s i o n i n The Trespass Act which abrogated the common law remedy of damage f o r t re spa s s when a lawful fence was in p l a c e , was d i s p l a c e d by the r e l e v a n t s e c t i o n of the townsh ip ' s by- law. The c o u r t agreed wi th the p l a i n t i f f s 37 and, in doing so , r e l i e d on e a r l i e r cases c i t e d to i t . Ba ldrey v. Fenton , a 1914 d e c i s i o n of the Supreme Court of Saskatchewan ,79 was r e l i e d on as a u t h o r i t y fo r the p r o p o s i t i o n tha t a by- l aw, passed under the a u t h o r i t y of a p r o v i n c i a l s t a t u t e , has a l l the fo rce of a s t a t u t e . In that r e g a r d , in F a l a r d e a u , the t o w n s h i p ' s by-law was g iven s t a t u t o r y weight equal to tha t of The Trespass A c t . Ba ldrey v. Fenton a l so i n v o l v e d a s i t u a t i o n o f animal t r e spa s s and c o n f l i c t i n g s t a t u t e s . In tha t c a se , the p l a i n t i f f ' s horse had s t r a y e d onto the d e f e n d a n t ' s p r o p e r t y , f a l l e n i n t o an open w e l l , and d i e d . In su ing f o r the va lue of the h o r s e , the p l a i n t i f f c i t e d a s e c t i o n o f The Open Wei 1s Act which p r o h i b i t e d persons from having on t h e i r p r o p e r t y open w e l l s or e x c a v a t i o n s which would be o f a s i z e which might c o n s t i t u t e a hazard to s tock s t r a y i n g upon the premise s . Cont ra ry to t h a t , and r a i s e d in defence to the s u i t , was a s e c t i o n o f a by-law duly passed pursuant to The Rural M u n i c i p a l i t i e s Act which made i t unlawful to a l low a n i m a l s , o t h e r than dogs , to run at l a rge w i t h i n the m u n i c i p a l i t y . The case i s not so much s u p p o r t i v e of the propo-s i t i o n tha t the by-law ousts the o p e r a t i o n of The Open  Wel l s Act in the p a r t i c u l a r m u n i c i p a l i t y as the c o u r t found that the defendant had breached the p r o v i s i o n of The Open Wei 1s Act and the p l a i n t i f f had breached the p r o v i s i o n o f the by- law. The p a r t i c u l a r case was dec ided on the bas i s tha t the p l a i n t i f f knew the wel l e x i s t e d and assumed the r i s k of h i s horses s t r a y i n g and f a l l i n g 38 i n t o the w e l l . Bishop v. L i den, a 1929 d e c i s i o n o f the B r i t i s h Columbia Court o f Appeal ,80 and Gladysz v. G r o s s , from O 1 the same cour t in 1945, were two o ther cases r e f e r r e d to by the cour t i n F a l a r d e a u , again d e a l i n g wi th animal t r e s p a s s . In Bishop v. L iden the s e c t i o n of The Trespass Act which d i s a l l o w e d an a c t i o n fo r damages a r i s i n g from t re spas s by c a t t l e where the p r o p e r t y was not surrounded by a lawful fence was aga in in i s s u e . In o p p o s i t i o n to that s e c t i o n was a s e c t i o n of the Anima 1s A c t , a l s o a p r o v i n c i a l s t a t u t e , which p r o h i b i t e d a l l o w i n g swine ( i n c l u d e d i n the d e f i n i t i o n o f ' c a t t l e ' i n The Trespass  Ac t ) to run at l a r g e . It was he ld t h a t the two s t a t u t e s were not repugnant , but cou ld be read i n c o n j u n c t i o n with each o t h e r . The o b j e c t of the An imals Act was to r e g u l a t e the running at l a r g e of do-mest ic a n i m a l s . The L e g i s l a t u r e had in view the c o n d i t i o n s of the c o u n t r y . Some animals i n c l u d i n g swine were not to be a l lowed to run at l a r g e at a l l ; o ther animals were a l lowed to run at l a r g e . A g a i n s t the l a t t e r owners of of l and were bound to fence and i f damage were done because of the un-fenced c o n d i t i o n o f the land i n j u r e d , the owner of the c a t t l e was not re -s p o n s i b l e t h e r e f o r . 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 c o n d i t i o n . 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 Trespass Act in no way c o n f l i c t s wi th the Animals A c t . It must, I t h i n k , be he ld to contemplate t re spa s s on unfenced land by c a t t l e which might u n l a w f u l l y run at l a r g e . 8 2 The c o u r t looked at the purpose of the enactments , 39 as wel l as the wording on the face of i t , in c o n s t r u i n g the s e c t i o n s . It was a matter of the general y i e l d i n g to the s p e c i f i c . Subsequent to t h a t was the d e c i s i o n in Gladysz v. Gros s . A g a i n , the same s e c t i o n of the Trespass Act was i n v o l v e d , t h i s time in o p p o s i t i o n to s e c t i o n s of the Pound D i s t r i c t A c t . The p l a i n t i f f ' s l a n d , a l though not surrounded by a ' l a w f u l f e n c e ' in accordance with the Trespass Act l a y w i t h i n a pound d i s t r i c t and i t was p r o h i b i t e d by the Pound D i s t r i c t Act to a l l ow animals to run at l a r g e . Anyone doing so would be l i a b l e f o r any damage caused by such a n i m a l . The c o u r t f o l l o w e d Bishop v. L iden and he ld t h a t , on a proper c o n s t r u c t i o n of the two s t a t u t e s there was no c o n f l i c t between them. A g a i n , the s p e c i f i c was to be p r e f e r r e d over the g e n e r a l . The c o u r t i n Fa la rdeau a l s o r e f e r r e d to a case from the Saskatchewan Court of Appeal which was s i m i l a r to the s i t u a t i o n in Fa l a rdeau i t s e l f . It i s important to note tha t in each o f the cases the Fa l a rdeau c o u r t was r e l y i n g on , the r e s u l t was t h a t , in c e r t a i n c i r c u m s t a n c e s , the p r o v i s i o n in one s t a t u t e gave way to the p r o v i s i o n in a n o t h e r . None of the cases went so f a r as to say t h a t the general act; d id not apply in the l o c a l i t y where another ac t or by-law was i n f o r c e . That i s , the a n a l y s i s i n each i n s t a n c e surrounded two s p e c i f i c p r o v i s i o n s . In no case was i t suggested that an e n t i r e act be d i s p l a c e d . 4 0 However, note the f i n d i n g in Fa 1 a r d e a u , a f t e r s t a t i n g a r e l i a n c e on the cases j u s t d e s c r i b e d . So I conc lude that 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 by laws , in tended that The  Trespass Act should not operate w i t h i n the areas 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 Act and the bylaws passed thereunder do not repea l The Trespass A c t . They c o u l d not in view of the f a c t tha 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 pre-v a i l "any law to the c o n t r a r y not -w i t h s t a n d i n g " . But the enactments can be read t o g e t h e r on the f o o t i n g tha t The Trespass Act s imply does not apply to lands t h a t f a l l w i t h i n the scope o f the bylaw.83 That i s a very broad s tatement which s imply does not flow from the e a r l i e r cases and, even in F a l a r d e a u , tha t statement must be read in contex t f o r , in the para-graph f o l l o w i n g , i t i s s t a t e d tha t The p o i n t i s t h a t the p r o v i s i o n s of the Trespass A c t , r e s t r a i n i n g the e x e r c i s e o f tha t common-law r i g h t t o i a n a c t i o n fo r t re spa s s , do not apply here because the enactment of 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 Trespass A c t . 4 The on ly meaningful r e a d i n g of the case can be t h a t , in those p a r t i c u l a r c i r c u m s t a n c e s , the r e l e v a n t s e c t i o n o f the by-law suspends the o p e r a t i o n o f the o therwi se r e l e v a n t s e c t i o n o f the Trespass A c t . Compare t h i s wi th the c o n c l u s i o n in Baker which holds the band by-law e f f e c t i v e w i t h i n re serve boundar ies where there i s c o n f l i c t between i t s p r o v i s i o n s and those of the Fi s h e r i es Act or R e g u l a t i o n s . That c o n c l u s i o n was s t a t ed wi thout b e n e f i t of the d e t a i l e d examinat ion 4 1 one sees in Falardeau and the cases on which i t r e l i e d . That i s , there is no e x p l i c i t advertence to the purpose of the by-law as opposed to the purpose of the Fisheries  Act, and the substance of the by-law, other than the one broadly worded section which gives v i r t u a l l y unlimited fishing privileges to band members, received no attention. c) Is the Issue of Indian Band By-laws Versus the  Fisheries Act Properly Subject to the Same Kind  of Analysis? It w i l l be argued that while, at a f i r s t reading, the case of Falardeau v. Church might be seen to apply to the f i s h e r i e s by-law issue by a parity of reasoning, the cases are not s u f f i c i e n t l y analogous to lead one to the conclusion that a by-law should apply on a reserve to the exclusion of the Fisheries Act. A Note that in Falardeau v. Church, Baldrey v. Fenton, Bishop v. Liden and Gladysz v. Gross the courts were dealing with very s p e c i f i c issues: that i s , the re-spective c i v i l remedies of p l a i n t i f f and defendant in situations of animal trespass and c o n f l i c t i n g sections of provincial statutes or by-laws made pursuant to provincial statutes. There was never any question raised as to the v a l i d i t y of any of the acts or by-laws. The situations were discrete in the sense that in each there were only two interested parties and in each the decision, relating to l i a b i l i t y and damages, would not have an effect which would reach beyond the two parties to the su i t . It is 42 the w r i t e r ' s view that the f i s h e r i e s b y - l a w s , by t h e i r very n a t u r e , r e q u i r e a more comprehensive a n a l y s i s than they have been a f f o r d e d . F i r s t , the by-law should be examined in r e l a t i o n to the e n a b l i n g l e g i s l a t i o n , s e c t i o n 81 of the Indian A c t . Can each by-law in ques t ion be s a id to f a l l w i t h i n the ambit of 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 i s h e r i e s on the re se rve? The b y - l a w s , p r i o r to being r e g i s t e r e d as s t a t u t o r y ins t ruments a r e , at l e a s t t h e o r e t i c a l l y , reviewed by a M i n i s t e r o f the Crown. Th i s does not assure t h e i r v a l i d i t y , and t h e i r t rue c o n s t r u c t i o n and a p p l i c a b i l i t y are s t i l l to be i n t e r p r e t e d by the c o u r t s . Upon l o o k i n g at a number o f the by-laws i t i s c l e a r , by the d u p l i c a t i o n of many s e c t i o n s of the F i s h e r i e s A c t , tha t the i n t e n t i o n expressed through the by-law i s tha t the F i s h e r i e s Act be d i s p l a c e d c o m p l e t e l y on the r e s e r v e . It i s q u e s t i o n a b l e whether tha t k ind of o v e r r i d i n g a u t h o r i t y can be drawn from the p l a i n wording o f s e c t i o n 81. Nor , in p r o p e r l y c o n s t r u i n g the b y - l a w s , can one ignore the s u b j e c t o f the by-laws and the p o s s i b l e p r a c t i c a l r e s u l t s o f upho ld ing them. That i s , i t i s not a q u e s t i o n o f damages between i n d i v i d u a l p a r t i e s in a p r i v a t e s i t u a t i o n . What the Indians are c l a i m i n g through t h e i r by-laws i s a r i g h t to c o n t r o l e n t i r e f i s h e r i e s , a p u b l i c r e s o u r c e . D i s r e g a r d i n g f o r the moment the q u e s t i o n of a b o r i g i n a l c l a i m to f i s h e r i e s , and keeping in mind tha t what i s at i s sue i s s o l e l y s t a t u t o r y a u t h o r i t y , 43 i t is d i f f i c u l t to find a rationale which would support the application of the by-law. By the very nature of the resource, that i s , the migratory nature of salmon, and the fact that Indian reserves are generally located down-stream of spawning grounds, i t is obvious that a band has complete control of escapement beyond i t s own waters to the spawning ground upstream.. Although cer t a i n l y many f i s h are taken prior to the entry of the runs into re-serve waters, the band, at that stage, has absolute and ultimate control over the stocks. While Falardeau was the only case referred to by the court in Baker other cases were cited and, on looking at those cases, one sees that that p r i n c i p l e of con-struction which applies the s p e c i f i c over the general is not the only factor for consideration when construing c o n f l i c t i n g statutes. It is intended to discuss two of the other cases which were referred to the courts in a l l three of the fi s h e r i e s by-law cases and then to suggest that the reasoning in Leech, as far as i t goes, is to be preferred to that in Baker and B a s i l . The case of Old Kildonan Municipality v. City of  Winnipeg, a 1943 decision of the Manitoba King's Bench, y5 was cited in support of the accused's position. A reading of the case, however, makes i t clear that one is to con-sider a l l the circumstances, and the fact that one statute is general and one is pa r t i c u l a r is not of i t s e l f necessar-i l y d e t e r m i n a t i v e . < 44 The issue in that case was whether the Old Kildonan Municipality had the authority to tax a public golf course which, although physically within the boundaries of the municipality, was owned by the City of Winnipeg. The City Charter exempted from tax land owned by the c i t y , lying outside the t e r r i t o r i a l l i mits of the c i t y , and used for public park purposes. The Court f i r s t determined that the golf course q u a l i f i e d as a "public park" within the meaning of the City Charter. It then examined successive l e g i s l a t i v e provisions from 1912 to 1940 which variously affected the land in question, including revision of municipal boundaries. F i n a l l y , in 1940, the Winnipeg Charter was revised to s p e c i f i c a l l y include the land within c i t y boundaries and, at the same session of the Legislature, the same property was s p e c i f i c a l l y named as being a part of the municipality of Old Kildonan. That was included in the Municipal Boundari es Act, which was characterised as a general act dealing with many municipalities. The question was whether the amendment to the Mun i ci pal Boundaries Act, which put the golf course in Old Kildonan, had the effect of repealing the tax exemption given to park lands owned by the c i t y or, further, of repealing the statutes which put the land within c i t y boundaries. It was not determinative that the Municipal  Boundari es Act had been the la s t statute passed, nor was i t determinative that one statute was more general 45 than the other. In holding that the land was not tax-able by the municipality of Kildonan, the court considered that the c i t y ' s Charter allowed i t to hold land outside i t s ordinary limits for park purposes; that the golf course property had been s p e c i f i c a l l y included in certain statutes defining legal boundaries of the c i t y ; and, i t was not unimportant that, from 1912 to 1943, no munici-p a l i t y had ever attempted to assess the land for taxes. Another case cited which indicates one must look at the circumstances to see what reasonable interpre-tation can be taken where c o n f l i c t exists was that of Waugh and Esquimalt Lumber Company Limited v. Pedneault, a 1948 decision of the B r i t i s h Columbia Court of Appeal. 8 6 There, the question was whether use of the term "any land" in a section of the Forest Act gave a logging inspector the power to enter upon and expropriate a logging road which was already being used by another logging operator. It was held that the Legislature could not have intended that a stranger should acquire a right in a logging road actually in use and thereby interfere with another's logging operations. The Legislature cannot be presumed to act unreasonably or unjustly, for that would be acting against the public ....That is why words in an Act of the Legislature are not r e s t r i c t e d to what are sometimes called their "ordinary" or " l i t e r a l " meaning, but are ex-tended f l e x i b l y to include the most reasonable meaning which can be extracted from the purpose and object 46 of what i s sought to be accompl i shed by the s t a t u t e . 8 7 In the c i r c u m s t a n c e s , i t was unjust and q u i t e unreasonable that the s e c t i o n be given a l i t e r a l read ing and the c o u r t d e c l i n e d to do so. It i s suggested that a c a r e f u l read ing of the cases presented by the defence and a p p a r e n t l y r e l i e d on by the Baker c o u r t , at l e a s t , does not n e c e s s a r i l y lead one to the c o n c l u s i o n that band f i s h e r i e s by-laws should exc lude the o p e r a t i o n of the Fi s h e r i es Act and Regu la t ions on r e s e r v e . Note tha t the cases operate at a very s p e c i f i c l e v e l , d e a l i n g wi th c i v i l c o n f l i c t s between two p a r t i e s and i n v o l v i n g e v i d e n t , d i s c r e t e c o n f l i c t i n i n d i v i d u a l s i t u a t i o n s . That i s , Fa la rdeau and the cases i t f o l l o w s are cases of animal t r e s p a s s ; Old K i ldonan i s a case of munic ipa l t a x a t i o n ; and Waugh and Esqu imal t  Lumber Co. i n v o l v e s the s t a t u t o r y r i g h t of one l o g g i n g o p e r a t o r a g a i n s t ano ther . The cour t s attempted to d i s c e r n l e g i s l a t i v e i n t e n t i o n in i n t e r p r e t i n g c o n f l i c t i n g p r o v i s i o n s , in the t r e spa s s cases e s p e c i a l l y , l o o k i n g at the s i t u a t i o n s the l e g i s l a t i o n was a t t empt ing to remedy. Of the f i r s t three f i s h e r i e s by-law c a s e s , on ly Leech looks at the purpose of the by-law and r e l a t e s i t to the genera l r e g u l a t o r y scheme of the F i s h e r i e s A c t . The comment i s not e x t e n s i v e but there i s a c l e a r s t a t e -ment that a by-law cou ld not d i s p l a c e the F i s h e r i e s A c t . His Honour Judge Gordon suggested that a by-law c o u l d have e f f e c t on re serves i f i t were more s p e c i f i c 47 in i t s regulation than the Fisheries Act. It is suggested that this is not an unreasonable way of reading the Act and by-law so they might co-exist. There is a q u a l i t a t i v e difference between the type of situation which arose in the "animal trespass" cases and the type of situation which arises in the presence of a band f i s h e r i e s by-law. It is s i g n i f i c a n t that, by the very nature of i t s subject-matter, this type of by-law has " e x t r a - t e r r i t o r i a l " e f f e c t s . That i s , i t is aimed primarily at the salmon resource which, of course, is migratory. In almost a l l cases, the Indian reserves are located down-river of the salmon spawning grounds, and', for that reason, there is a theoretical ultimate control of the resource at the reserve location i f the by-law objective of excluding the operation of the Fisheries Act is successful. When one examines the l a t e s t by-laws with their permissive fis h i n g clauses, the provisions duplicative of the Fisheries Act and th e i r sections which purport to empower the band council to pass regulations on an on-going basis, there can be no doubt that the intention is to completely exclude the operation of the Fisheries  Act and Regulations on reserves. It is a va l i d policy consideration that the federal government already has a regulatory system in place. Even at the f i r s t stage of the inquiry, that of finding a prima facie c o n f l i c t , the reasoning of His 48 Honour Judge Gordon in Leech is to be preferred to that of His Honour Judge Friesen in Ba s i l . On the face of the Bridge River by-law, no c o n f l i c t arises. The court in Basil made a finding that the accused caught f i s h on a day when f i s h could be taken, by permission of the Bridge River Indian band. 8 y There is nothing in the by-law i t s e l f which specifies open or closed times so that there must have been a reliance on a rule of the council which was made outside of the authority of the by-law. On a plain reading of the by-law, then, this constitutes an error and, as the court was dealing with the same by-law as was raised in the Leech case, one would expect the matter to have been ended on the basis that there were no c o n f l i c t i n g provisions before the court. Even i f the Baker case is correct in holding that a provision of a by-law could take precedence over a provision of the Fisheries Act or the Regulations, one is s t i l l faced with the necessity of enquiring, in every instance, whether or not the relevant provisions c o n f l i c t . The cases simply cannot be read so broadly as to say that, where there is a by-law in force, the Fisheries Act wi l l not apply within reserve boundaries. With respect to c o n f l i c t , and s p e c i f i c i t y over generality, i t could be argued in many instances that the provision in the Fi sheri es Act is more s p e c i f i c in nature than a corresponding by-law provision. A good example of this is found in Baker. The section of the 49 Squamish band by-law which was said to supersede the Fisheries Act Regulation was a generally permissive section, allowing band members to fi s h almost without r e s t r i c t i o n . It could be argued that the regulation prohibiting fishing by net is more s p e c i f i c in that i t r e s t r i c t s the method of f i s h i n g . The two provisions could be read in conjunction so that net f i s h i n g would constitute an exception to the f i s h i n g "by any means" of the by-law. The section can be read that way without doing harm to the sense of either. In terms of the practical question of whether or not band f i s h e r i e s by-laws take precedence over the Fisheries Act, Baker is ce r t a i n l y not decisive. The v a l i d i t y of the by-laws in general and the extent to which courts w i l l honour them are questions not answered by Baker. 50 CHAPTER IV LEGAL VALIDITY OF THE BY-LAWS Two d i f f e r e n t by-laws were i n v o l v e d in the three cases so f a r d i s c u s s e d . In none of these cases was there a c h a l l e n g e to the v a l i d i t y of e i t h e r of the by- l aws . In each o f the three cases examined, the f a c t that the by-law i n q u e s t i o n had r e c e i v e d m i n i s t e r i a l approval and had been duly r e g i s t e r e d pursuant to the S t a t u t o r y  Instruments Act was s u f f i c i e n t f o r the cour t to recogn i se i t . A b y - l a w , however, has no l e g i s l a t i v e s a n c t i o n . Its o n l y s a n c t i o n i s the m i n i s t e r i a l approval i t r e c e i v e s . A by-law must be open to c h a l l e n g e on the ground tha t i t exceeds the scope o f the e n a b l i n g l e g i s l a t i o n . In the o p i n i o n o f the w r i t e r , many of the e x i s t i n g b y - l a w s , in whole or in p a r t , would not stand a g a i n s t argument in o p p o s i t i o n to t h e i r v a l i d i t y . Let us r e t u r n to the wording of s e c t i o n 81 i t s e l f . The c o u n c i l o f a band i s empowered to make by-laws f o r , among o ther t h i n g s , " 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 a n i m a l s , f i s h and o ther game on the r e s e r v e " . Al though management denotes c o n t r o l , i t a l s o denotes a d m i n i s t r a t i o n and , in t h i s c a se , a d m i n i -s t r a t i o n fo r the p r e s e r v a t i o n of the r e s o u r c e . A by-law of t h i s type does not bestow an ab so lu te and e x c l u s i v e r i g h t to the re source i t s e l f . 51 Note that f u r - b e a r i n g animals and o ther game are i n c l u d e d in the same s u b - s e c t i o n . Game b i r d s and a n i m a l s , as a r e s o u r c e , are s u b j e c t to e n t i r e l y d i f f e r e n t c o n s i d e r -a t i o n s than migra tory f i s h . Any r e g u l a t o r y measures taken with regard to game on the reserve would apply to d i s c r e t e , l i m i t e d p o p u l a t i o n s . The e f f e c t of such measures would be c o n f i n e d w i t h i n the boundar ies of the r e s e r v e . It i s not analogous to the s i t u a t i o n af an anadromous f i s h e r y where the e n t i r e runs o f a p a r t i c u l a r r i v e r are l i k e l y to pass through a re serve on the way to spawning grounds . Here , a band cou ld have u l t i m a t e c o n t r o l over the e n t i r e r e s o u r c e . In o ther words , the e f f e c t reaches beyond re serve boundar ies to a l l p o t e n t i a l users o f the r e s o u r c e . Thi s i s n o t , t h e n , s t r i c t l y s p e a k i n g , management of f i s h "on the r e s e r v e " . Theo-r e t i c a l l y , a band which a l lows v i r t u a l l y u n r e s t r i c t e d f i s h i n g on reserve s i t e s c o u l d e n t i r e l y prevent escape-ment in a g iven year and the r e s u l t would be e l i m i n a t i o n of t h a t c y c l e o f runs on that p a r t i c u l a r r i v e r . S e c t i o n 81(o) cannot be read so b road ly as to embrace the l e g i s l a t i v e r o l e which i s d r a f t e d i n t o the l a t e r , a l1-encompass ing type o f by- law. Ra ther , i t imparts an a d m i n i s t r a t i v e f u n c t i o n . The goal o f the band c o u n c i l s which have passed by-laws in the l a s t few years i s c l e a r , however, and tha t i s to a t t a i n complete and e x c l u s i v e f i s h e r i e s management. Many of the newer p r o v i s i o n s , by neces sary 52 i m p l i c a t i o n , reach beyond reserve boundar i e s . The s e c t i o n s r e l a t i n g to p r o t e c t i o n of f i s h h a b i t a t , p a r t i c u l a r l y to the d e p o s i t of d e l e t e r i o u s s u b s t a n c e s , or o f l o g g i n g or l a n d - c l e a r i n g d e b r i s " i n t o any water f requented by f i s h , or that flows i n t o such w a t e r " 8 9 must be in tended to apply to o p e r a t i o n s e i t h e r on or o f f re serve i f d e p o s i t s might e v e n t u a l l y reach on-re serve s i t e s . Y e t , the j u r i s d i c t i o n of a band i s c i r c u m s c r i b e d by the Indian A c t . It i s r e s t r i c t e d to re serve area and there would not appear to be any mechanism which would be s u c c e s s f u l in b r i n g i n g an o f f - r e s e r v e par ty w i t h i n the purview of the by- law. The f a c t tha t many s e c t i o n s o f the newer by-laws are d u p l i c a t i v e of F i s h e r i e s Act s e c t i o n s a l so demon-s t r a t e s an e x c l u s i o n a r y i n t e n t . A s i m i l a r management scheme i s e n v i s a g e d , but c o n t r o l l e d by the band c o u n c i l r a t h e r than by the Department of F i s h e r i e s and Oceans. The p r o v i s i o n in the newer by-laws which causes the g r e a t e s t concern in terms of l e g a l v a l i d i t y i s tha t which purpor t s to con fe r upon the band manager or band c o u n c i l the a u t h o r i t y to make r e g u l a t i o n s on an on-go ing b a s i s . It f i r s t appears in the Squamish band by-law as s e c t i o n 14: The Band manager may m a k e ' r e g u l a t i o n s fo r c a r r y i n g out the purposes and pro-v i s i o n s o f t h i s by-law and in p a r t i c -u l a r , but wi thout 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 r e g u l a t i o n s : (a) f o r the proper management and 53 c o n t r o l of f i s h e r i e s ; (b) 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 of f i s h ; (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 , 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 , pos se s s ion and d i s p o s a l o f f i s h ; (d) r e s p e c t i n g the o p e r a t i o n o f f i s h i n g v e s s e l s ; (e) r e s p e c t i n g the use of f i s h i n g gear and equipment ; ( 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 waters f requented by f i s h ; (g) 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 of spawning grounds ; (h) p r e s c r i b i n g the powers and d u t i e s of persons engaged or employed in the a d m i n i s t r a t i o n or enforcement of t h i s by-law and p r o v i d i n g f o r the c a r r y i n g out of those d u t i e s and powers; ( i ) a u t h o r i z i n g a person engaged or employed in the a d m i n i s t r a t i o n of t h i s by-law to vary any c l o s e d time or f i s h i n g quota that has been f i x e d by the r e g u l a t i o n s . 9 0 As noted e a r l i e r , t h i s s e c t i o n i s , in a l l m a t e r i a l r e s p e c t s , i d e n t i c a l to s e c t i o n 34 of the Fi s h e r i es Act which empowers the Governor in Counc i l to pass such r e g u l a t i o n s . There i s very l i k e l y a s t rong argument to be made t h a t a p r o v i s i o n o f t h i s type exceeds the a u t h o r i t y of band c o u n c i l . It a lmost c e r t a i n l y of fends the maxim de legatus non potes t d e l e g a r e , "a de lega te may not re -d e l e g a t e " . The maxim i s a r u l e of c o n s t r u c t i o n and not a r i g i d p r i n c i p l e but i t i s 54 generally applicable 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 functions by the state from transferring i t s deliberative functions to another body or o f f i c i a l . Phrased conversely, i t means that p o l i t i c a l power can be exercised only by those who are responsible in law for i t s execution. In terms of municipal law this means that, in the absence of express statutory authority, a municipal council, as the recipient of delegated authority 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 discretionary power vested in i t . " * David Mullan, in his discussion of the topic states that, in considering whether a delegation of authority can be inferred from the l e g i s l a t i o n , the courts w i l l look to factors such as; the nature of the authority on whom the power was o r i g i n a l l y conferred, the nature of the person to whom the purported delegation has been made, the nature and extent of the power possessed by the origi n a l authority and the conditions upon which i t can be exercised, the extent of the delegation in relation to the total power and the controls and conditions imposed by the ori g i n a l decision-maker on the exercise of power by the delegate. In general, the more important the power, the more l i k e l y i t is that the courts w i l l hold that i t cannot be delegated and must be exercised by the person or authority named in the empowering statute.^2 In looking again at the empowering l e g i s l a t i o n for the by-laws one must have regard for both sections 81 and 82 of the Indian Act. 55 81. The c o u n c i l of a band may make by-laws not i n c o n s i s t e n t with t h i s Act of with any r e g u l a t i o n made by the Governor in C o u n c i l or the M i n i s t e r , f o r 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 a n i m a l s , f i s h and o t h e r game on the r e s e r v e . In c o n j u n c t i o n with t h i s i s the s e c t i o n 82 requirement tha t a copy of any by-law made under the a u t h o r i t y of s e c t i o n 81 must be forwarded to the M i n i s t e r , who may d i s a l l o w the by- law. The s t a t u t o r y a u t h o r i t y g iven the band c o u n c i l i s to make by-laws f o r , among o ther t h i n g s , f i s h e r i e s on the r e s e r v e , but any by-law passed by a c o u n c i l i s s u b j e c t to m i n i s t e r i a l a p p r o v a l . By s e c t i o n 14 o f the Squamish b y - l a w , the band c o u n c i l has attempted to d e p o s i t v i r t u a l l y a l l r u l e -making a u t h o r i t y wi th the band manager. The scope of the s u b j e c t s covered in the s e c t i o n encompasses every aspect which c o u l d c o n c e i v a b l y r e l a t e to the o p e r a t i o n o f f i s h e r i e s on the r e s e r v e . N a t u r a l l y , by a t t empt ing to b u i l d i n t o the by-law an on-go ing r e g u l a t o r y mechanism, the approval o f the M i n i s t e r i s e f f e c t i v e l y by-pas sed . To ta l r e g u l a t o r y a u t h o r i t y i s imparted to the band manager. With the i n i t i a l d i s c r e t i o n f o r approv ing the by-law l y i n g with the M i n i s t e r , the band c o u n c i l i s not in a p o s i t i o n to f u r t h e r de lega te to the band manager whatever r e g u l a t o r y power i t may have. In some c a s e s , such as wi th the Cowichan band, the 56 council gives i t s e l f the subsequent regulatory power. This, too, is arguably inva l i d in i t s circumvention of Min i s t e r i a l approval. Beyond that, i t is doubtful that council i t s e l f has the f u l l range of regulatory ( l e g i s l a t i power to which i t ascribes. Case law dealing with the extent of a band council's authority under section 81 of the Indian Act is minimal. Some insight can be gained, however, by reviewing the few relevant cases. Regina v. Gingrich was a 1958 decision of the appellate division of the Alberta Supreme Court.93 There was an appeal from a conviction under section 30 of the Indian Act for trespassing on a reserve. The band council had a requirement that anyone going on the reserve must f i r s t obtain a permit. A missionary who had been v i s i t i n g the reserve for many years was twice denied a permit when the band's permit system f i r s t came into use. The band council had the power, through then section 80(p), to make by-laws for "the removal and punishment of persons trespassing upon the reserve or frequenting the reserve for prescribed purposes". Of interest in this case is that the court held that the band council could not, in e f f e c t , define trespassing by contending that anyone on the reserve without a band-issued permit was trespassing. In the absence of any d e f i n i t i o n of trespass in the Act the court looked to the common law d e f i n i t i o n and, as the minister had been 57 i n v i t e d to a t tend on the r e s e r v e , on that and many o t h e r o c c a s i o n s , he was not t r e s p a s s i n g . The band's powers were he ld to be narrowly c i r c u m s c r i b e d by the wording of the s u b s e c t i o n . A more recent case i s use fu l for i t s comments on the nature and f u n c t i o n of a band c o u n c i l . Mhi tebear Band  C o u n c i l v . Carpenter s P r o v i n c i a l C o u n c i l of Saskatchewan  and Labour R e l a t i o n s Board of Saskatchewan was a 1982 d e c i s i o n of the Saskatchewan Court o f Appea l .94 x n e case i n v o l v e d an a p p l i c a t i o n f o r j u d i c i a l review of a Saskatchewan Labour R e l a t i o n s Board d e c i s i o n r e g a r d i n g the j u r i s d i c t i o n of the S . L . R . B . over the Whitebear band c o u n c i l . The band c o u n c i l had entered i n t o c e r t a i n agreements wi th the Department of Indian and Northern A f f a i r s to manage c e r t a i n programmes on the r e s e r v e , i n c l u d i n g some c o n s t r u c t i o n on the r e s e r v e . On an a p p l i c a t i o n by a union to r e p r e s e n t c a r p e n t e r s on the re serve p r o j e c t , the band c o u n c i l o b j e c t e d to the j u r i s d i c t i o n o f the S . L . R . B . , a rgu ing that the l abour r e l a t i o n s would f a l l under f e d e r a l l e g i s l a t i v e j u r i s d i c t i o n . In h i s d e c i s i o n , Mr. J u s t i c e Cameron commented on the nature of the band c o u n c i l as a " c r e a t u r e " o f the P a r l i a -ment of Canada. The e l e c t e d o f f i c i a l s - a c h i e f and twelve counc i11or s -are in tended by Par l i ament to p rov ide some measure - even i f r a t h e r rudimentary -of l o c a l government in r e l a t i o n to l i f e on Indian re serves and to ac t as some-t h i n g of an i n t e r m e d i a r y between the 58 band and the Minister of Indian A f f a i r s . More s p e c i f i c a l l y , section 81 of the Act clothes Indian band councils with' such powers and duties in relation to an Indian reserve and i t s inhabitants fas^ are usually associated with a rural munici-p a l i t y and i t s counci1 .... Hence , a band council exercises - by way of delegation from Parliament - these and other munici-pal and governmental powers in relation to the reserve whose inhabitants have elected i t In summary, an Indian band council is an elected public authority, dependant on Parliament for i t s existence, powers and r e s p o n s i b i l i t i e s , whose essential function i t is to exercise municipal and government power - delegated to i t by Parliament -in relation to the Indian reserve whose inhabitants have elected it.95 The Quebec Court of Appeal has given further indication of the j u d i c i a l view of the status and role of a band council in a t h i r d case. Re Stacey and Montour  and The Queen^S involved an application for an order of prohibition on the ground that the court and/or the judges had no j u r i s d i c t i o n in the matter. The appellants were members of the Caughnawaga Indian Reserve. The alleged act of assault took place on the reserve, both assailants and victims being reserve inhabitants. The appellants argued, among other things, that, even i f the judges derived j u r i s d i c t i o n from the pro-visions of the Criminal Code, Parliament had made an exception in the Indian Act by creating a special court with exclusive j u r i s d i c t i o n to hear cases dealing with the commission of criminal acts on the reserve by reserve members. They referred to the following sub-sections of section 81: 59 (c) the observance of law and o r d e r ; (d) the p r e v e n t i o n of d i s o r d e r l y conduct (q) with re spec t to any matter a r i s i n g out of or a n c i l l a r y to the e x e r c i s e of powers under t h i s s e c t i o n . It was argued that s e c t i o n 81 c o n f e r r e d not on ly a l e g i s l a t i v e power on c o u n c i l but a l so an e x e c u t i v e and j u d i c i a l one , that the band has not on ly the power to make by-laws but a l so to l e g i s l a t e "wi th r e spec t to any matter a r i s i n g out of or a n c i l l a r y to the e x e r c i s e of powers under [ s e c t i o n 8 l \ " . That i s , i t has the power ( e x e c u t i v e ) to assure that i t s r e g u l a t i o n s are re spec ted and that the o f f ender s be brought before the a u t h o r i t y de s i gna ted by the band to dec ide whether there was an o f fence and, i f so , to determine the punishment ( j u d i c i a l ) . The response of the c o u r t was tha t 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 r e g u l a t e on ly " 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 words , a band has , in t h i s a r e a , the same sor t of l e g i s l a t i v e powers as those possessed by the c o u n c i l of a m u n i c i p a l c o r p o r a t i o n . The power to g ive e f f e c t to r e g u l a t i o n s cannot extend beyond these a d m i n i s t r a t i v e s t a t u t e s ; they are acce s sory and no th ing more. ' 60 CHAPTER V THE EXPERIENCE OF THE COWICHAN INDIAN BAND WITH FISHERIES BY-LAWS The rea son ing o f the cour t in Re Stacey and Montour , drawing the analogy between a band c o u n c i l and a munic ipa l c o u n c i l and l i m i t i n g the f u n c t i o n to an a d m i n i s t r a t i v e one o n l y , suggests that the band by-law which attempts to oust c o m p l e t e l y the government f i s h e r i e s departments ' presence from the re se rve w i l l not be s u c c e s s f u l . T h i s was, in f a c t , the r e s u l t when t h i s argument was put to the c o u r t i n the most recent i n s t a n c e o f a band f i s h e r i e s by-law being r a i s e d i n defence to a f i s h e r i e s charge . The case was Regina v. John Loui s Jimmy, an unrepor ted d e c i s i o n of His Honour Judge Heard , handed down in Duncan P r o v i n c i a l Court December 14, 1984. The d e c i s i o n f o l l o w e d two and a h a l f year s of combined c o u r t proceed-ings on that and an e a r l i e r ca se , each i n v o l v i n g a d i f f e r e n t by-law of the Cowichan Band. The h i s t o r y of these two cases and of the band's attempts to ma in ta in t h e i r f i s h e r i e s demonstrates the p r a c t i c a l a spects o f t h i s c o n t r o v e r s y . Looking at i t w i l l help to i l l u m i n a t e the importance of the by-law i s sue and a l so show how the cour t s might e v e n t u a l l y t r e a t i t . The q u e s t i o n i s what p o t e n t i a l r o l e can such a by-law have in the s a t i s f a c t i o n 61 of the n a t i v e c l a i m to f i s h e r i e s . A n c i l l a r y to t h a t , of c o u r s e , i s the ques t ion of u l t i m a t e impact on a l l f i s h e r i e s user groups . The re serve l o c a t i o n s of the Cowichan Indian band, near Duncan on Vancouver I s l a n d , were recogn i sed by the Indian Reserve Commission in 1877. Several s i t e s a long the Cowichan R i v e r were s p e c i f i c a l l y i n c l u d e d as f i s h i n g s t a t i o n s in the a l l o c a t i o n . Band members take as g iven t h e i r r i g h t to f i s h f o r what they need in accordance with t h e i r t r a d i t i o n a l p r a c t i c e s . No t r e a t i e s were ever entered i n t o by the band wi th e i t h e r l e v e l of government. C o n f r o n t a t i o n with the government over the r i g h t to pursue t h e i r f i s h i n g p r a c t i c e s began v i r t u a l l y wi th the i m p o s i t i o n o f e a r l y f i s h i n g c o n t r o l s . Both the present c h i e f of the band, Dennis A l p h o n s e , and the l o c a l f i s h e r i e s o f f i c e r , T revor F i e l d s , agree that the band has t r a v e l l e d a rough road in the h i s t o r y of i t s r e l a t i o n s h i p with the Royal Canadian Mounted P o l i c e and the f e d e r a l Department of F i s h e r i e s . E a r l y c o n f r o n t a t i o n s wi th the R . C . M . P . r e v o l v e d around the use of f i s h w e i r s , when i t was f e l t tha t the weir s were r e s p o n s i b l e fo r t a k i n g too many f i s h . The Indians were persuaded to use nets i n p lace of the w e i r s . 9 8 i n r e f e r r i n g to a l ack of c o - o p e r a t i o n between band members and the Department of F i s h e r i e s , C h i e f Alphonse i n d i c a t e d t h a t , in the past few decades the R . C . M . P . have been c a l l e d in s evera l t i v e s because of a n t a g o n i s t i c d i s p l a y s towards f i s h e r i e s o f f i c e r s . 62 Mr. F i e l d s , the f i s h e r i e s o f f i c e r in charge of the d i s t r i c t s i n c e 1977, whi le r e c a l l i n g numerous i n s t a n c e s of c o n f r o n t a t i o n , says r e l a t i o n s have improved c o n s i d e r a b l y s ince he has a r r i v e d in Duncan.99 The band has always ma inta ined i t has t r a d i t i o n a l f i s h i n g r i g h t s and has attempted to defend those r i g h t s in cour t on severa l o c c a s i o n s . The case of Jack e t . a l . v.  R e g i n a 1 0 0 reached the Supreme Court of Canada and was one of the l a s t n o t a b l e cases i n v o l v i n g n a t i v e f i s h i n g r i g h t s which have made i t eminent ly c l e a r that f e d e r a l f i s h i n g l e g i s l a t i o n would supersede n a t i v e c l a i m s . The case i n v o l v e d e i g h t members of the Cowichan band who were charged with f i s h i n g f o r salmon in a c l o s e d p e r i o d . The defence argued t h a t A r t i c l e 13 o f the Terms of U n i o n , s t a t i n g that the Dominion Government would , a f t e r B r i t i s h Co lumbia ' s e n t r y i n t o C o n f e d e r a t i o n , abide by a p o l i c y towards the Indians as l i b e r a l as that p r e v i o u s l y employed by the B r i t i s h Columbia Government, a p p l i e d in t h i s ca se . It was contended that the p r i o r p o l i c y of the B r i t i s h Columbia Government was to encourage the Indians in t h e i r f i s h i n g p u r s u i t s and to a l low unregu la ted f i s h i n g . E ight members of the Court found tha t no th ing in A r t i c l e 13 operated to i n h i b i t f e d e r a l l e g i s l a t i v e power in the f i e l d of f i s h e r i e s . F u r t h e r , even i f f i s h i n g r i g h t s were e s t a b l i s h e d , c o n s e r v a t i o n of the f i s h e r i e s would take precedence . Mr. J u s t i c e Dickson a l so d i s m i s s e d the appeal but on 63 narrower grounds . -He found that A r t i c l e 13 d i d p r o t e c t the n a t i v e f i s h e r y by g i v i n g i t some p r i o r i t y b u t , in the p a r t i c u l a r i n s t a n c e , a c o n s e r v a t i o n i n t e r e s t had been e s t a b l i s h e d and that was paramount. The f i s h e r i e s by-law as a defence to f i s h e r i e s charges has been i n t r o -duced s i n c e Jack e t . a l . Salmon s tocks have d e c l i n e d in the Cowichan R i v e r as they have e l sewhere in the p r o v i n c e . The Cowichan band i s ab le to take a l l the chum salmon i t needs but the Chinook and coho sa lmon, favoured fo r e a t i n g , are not a v a i l a b l e in s u f f i c i e n t numbers. Band members r e c o g n i s e that s tock s i z e s are c r i t i c a l and that some c o n t r o l s are n e c e s s a r y . S ince the l a t e 1970's a degree of c o - o p e r a t i o n has developed between the band and the f i s h e r i e s o f f i c e r s to the p o i n t tha t the band does have some d_e f ac to c o n t r o l over f i s h e r i e s management. It began wi th some d i s c u s s i o n between the p a r t i e s r e g a r d i n g c l o s e d times be ing imposed by the band r a t h e r than by F i s h e r i e s . The band was then g iven the o p p o r t u n i t y to determine which of i t s members would apply fo r food f i s h i n g permits from the Department. C e r t a i n members of the band took a c o l l e g e course in f i s h e r i e s and r i v e r management and began to c o - p a t r o l the r i v e r with f i s h e r i e s o f f i c e r s . In 1981 an o p i n i o n from the Department of J u s t i c e appeared say ing t h a t , where a by-law was in p l a c e , i t was to be re spec ted in pre fe rence to the F i s h e r i e s A c t 1 0 1 64 No regulations were enforced on the reserve by federal f i s h e r i e s o f f i c e r s that year and, according to Fisheries personnel , nets appeared i n ^ r i v e r almost nightly that year in spite of a federal regulation which bars fi s h i n g by net in Cowichan River at any time of the year. Since the inception of the second by-law, the federal f i s h e r i e s o f f i c e r s have allowed the band to manage on-reserve f i s h e r i e s , going onto the reserve only to make jo i n t patrols or where f i s h are being sold in contravention of the Fisheries Act. On the whole, the Department of Fisheries has taken a very passive position with respect to the existence of band f i s h e r i e s by-laws. This is not the case with the provincial Ministry of Environment, which is presently very con-cerned for the maintenance of steelhead stocks in the provi nee's r i vers. The steelhead is a sea-going trout with a l i f e -cycle similar to that of salmon. The management of the resource is the r e s p o n s i b i l i t y of the provincial government. The policy of the Ministry is that the steelhead supports a sport fishery only, not a commercial fishery nor an Indian food fishery. The decline of steelhead stocks was the reason behind the Ministry's introduction, in 1979, of i t s "catch and release" provisions. The steelhead run from November to April of each year and, when the runs are at their peak, (December through March, depending 65 on the locale) fishers are required to take steelhead by angling only, and to immediately return the f i s h to the r i v e r . i 0 ^  The Cowichan River is of particular interest to the provincial government as i t has t r a d i t i o n a l l y shown a strong steelhead population. It is one of the five or six major steelhead rivers on Vancouver Island. Vancouver Island is very important i t s e l f for steelhead anglers, providing, as i t does, about f i f t y per cent of the total provincial c a t c h . 1 0 4 While other steelhead rivers on Vancouver Island have responded to the catch and release measures by showing increased steelhead stocks, the Cowichan River has not. Stock numbers have remained constant since 1979. Robert Hooton, f i s h e r i e s b i o l o g i s t with the Ministry of the Environment and responsible for steelhead management of Vancouver Island estimates that present steelhead production in the Cowichan River is about sixty per cent of i t s optimum productivity. In his view, the runs are not recovering largely due to the numbers of steelhead taken by Cowichan band members. In his estimation, the issue has only arisen over the last few years as more steelhead are being taken by g i l l n e t . Due to the high water and muddy river conditions over the winter months, steelhead can be taken only by g i l l n e t or by angling. The most popular locations for band members are at the mouth of the rive r where the f i s h are more vulnerable, entering in high concentration 66 of numbers. In Hooton ' s exper ience from past y e a r s , most n e t t i n g a c t i v i t y ended in December, with the end of the salmon runs . Over the past f i v e y e a r s , he has seen the n e t t i n g a c t i v i t y c a r r y on past December. The r e s t r i c t i o n t h i s p laces on escapement is p r e v e n t i n g the s tock from i n c r e a s i n g to i t s f u l l p o t e n t i a l . The I n d i a n s , of c o u r s e , d i s p u t e the i m p o s i t i o n o f s t e e l h e a d r e g u l a t i o n s . They mainta in tha t s t e e l h e a d has always been a mainstay o f t h e i r d i e t in w i n t e r as i t i s the o n l y food f i s h i n the r i v e r d u r i n g the w i n t e r months. As they do not f i s h f o r s p o r t , but o n l y f o r f o o d , the ca t ch and r e l e a s e p r o v i s i o n s make no sense to them and c e r t a i n l y do not he lp them a c q u i r e f o o d . In J u l y o f 1982 a charge o f f i s h i n g by means o f a net was l a i d aga in s t two members o f the band, Sandy R ichard Joe and Isaac John B i l l . The i n f o r m a t i o n was sworn by the p r o v i n c i a l c o n s e r v a t i o n o f f i c e r f o l l o w i n g a r i v e r p a t r o l on the re serve i n February of tha t y e a r . No i s sue was taken as to the f a c t s . The two young men were r e t r i e v i n g a g i l l n e t which had been set the n i g h t b e f o r e . Three s t e e l h e a d f i s h were i n e v i d e n c e . Th i s was at a time of the year when the ca tch and r e l e a s e p r o v i s i o n s were in e f f e c t fo r s t e e l h e a d . There i s an a b s o l u t e p r o h i b i t i o n , however, aga in s t f i s h i n g by net in the Cowichan R i v e r at any time of the y e a r , f o r any type of f i s h . * 0 5 There i s no doubt tha t c o n s e r v a t i o n of the s t e e l h e a d resource was at i s sue in these proceed in 67 The f i r s t l i n e of defence was that the defendants were p r o t e c t e d by the Cowichan band by-law passed in 1956. They r e l i e d on the s e c t i o n s t a t i n g that No p e r s o n , o t h e r than a member of the band, s h a l l be pe rmi t t ed to f i s h in the re serve wi thout 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 a u t h o r i s e d by the C o u n c i l to grant such p e r m i s s i o n . 106 It was argued t h a t , by r e q u i r i n g non-members to seek permi s s ion to f i s h on the r e s e r v e , i t was i m p l i c i t that members cou ld then f i s h wi thout r e s t r i c t i o n on the r e s e r v e . Th i s argument was made in s p i t e o f the f a c t a wi tness f o r the d e f e n c e , the c h i e f of the band, t e s t i f i e d t h a t , in 1956, the pr imary concerns o f the band c o u n c i l l o r s were the c o n t r o l of spor t s f i s h e r s on the re serve and the g e n e r a t i o n o f income fo r the band through permit f ee s . F u r t h e r , i t i s c l e a r on the face o f i t tha t the i n t e n t of the s e c t i o n i s on ly to impose a p a r t i c u l a r r e s t r i c t i o n . The s e c t i o n can in no way be read to g ive an a b s o l u t e r i g h t to f i s h to band members. In support o f a l i m i t e d r e a d i n g of the s e c t i o n i s s e c t i o n 4 o f the by-law which r e f e r s a l l matters not s p e c i f i c a l l y d e a l t with in the by-law to the S p e c i a l F i s h e r y Regu la t ions fo r the P r o v i n c e o f B r i t i s h Columbia . I f the by-law were to apply in the c i r c u m s t a n c e s , the next i n q u i r y would be whether the by-law would take precedence over the F i s h e r i e s Act R e g u l a t i o n s . An argu-ment s i m i l a r to that made in R. v. Baker and R. v. B a s i l 68 was presented by the de fence . That i s , the Fa 1 ardeau l i n e of cases was p r e s e n t e d . As an a l t e r n a t i v e , mistake of f a c t was argued in that the young men had an "honest b e l i e f " in t h e i r " r i g h t " to f i s h for s t ee lhead based on the p r a c t i c e of e a r l i e r g e n e r a t i o n s f i s h i n g fo r s t e e l h e a d . E x t e n s i v e argument was p r e s e n t e d . In December of 1983, r a t h e r than r e n d e r i n g a d e c i s i o n , His Honour Judge Heard quashed the i n f o r m a t i o n , in s p i t e of the f ac t that no o b j e c t i o n had ever been taken to i t . One year l a t e r , a f t e r appeal and remi t t ance to the p r o v i n c i a l cour t fo r r e - t r i a l , the cour t found in favour of the defendants on the ba s i s o f 'mis take o f f a c t ' . The d e c i s i o n on the i s sue of mistake o f f a c t was most probab ly a p p e a l a b l e , g iven the d e c i s i o n o f the County Court in Regina v. C y p r i a n Bob that analogous c i r cumstances c o n s t i t u t e d a mistake of law r a t h e r than one o f f a c t . 1 0 7 The i s sue of g r e a t e r i n t e r e s t , however, was that of the by-law and, as tha t was d e a l t with in R. v. Jimmy, no appeal was taken in R. v. B i l l  and Joe. R. v. Jimmy became a f a r more i n t e r e s t i n g case in terms of the by-law defence . In January of 1983, almost a year a f t e r the B i l l and Joe n e t t i n g i n c i d e n t , the band c o u n c i l passed the Cowichan Indian Band F i s h i n g By- law, 1983, No. 2. The by- l aw.was , as mentioned e a r l i e r , the on ly one of i t s type approved by the M i n i s t e r s ince 1980. Correspondence at the time c l e a r l y shows the by-law passed "by d e f a u l t " o r , wi thout b e n e f i t of a m i n i s t e r i a l 69 rev iew. The band c o u n c i l s t a r t e d working on the by-law as e a r l y as 1978. There was a r e a l i s a t i o n that measures had to be taken to p r o t e c t the s tocks and the c o u n c i l was of the o p i n i o n tha t band c o n t r o l s might be more r e a d i l y accepted by band members than f e d e r a l l y imposed r e s t r i c t i o n s . By the e a r l y 8 0 ' s , the band was working with F i s h e r i e s to r e g u l a t e days and methods of f i s h i n g . They were be-g i n n i n g to have a few members t r a i n e d in a spects of f i s h e r i e s management and began to co-opera te wi th F i s h e r i e s in p a t r o l l i n g the r i v e r . The t r a i n e e s a l s o p a r t i c i p a t e d in f i s h " c o u n t s " ; tha t i s , swimming p o r t i o n s of the r i v e r , c o u n t i n g f i s h and then e s t i m a t i n g s tock numbers. In c o n n e c t i o n with p r o v i s i o n s of the new by-law the i n t e n t i o n i s to e v e n t u a l l y t r a i n personnel in areas o f e r o s i o n and f l o o d c o n t r o l ; water q u a l i t y ; p o l l u t i o n ; and h a b i t a t management, a l l e s s e n t i a l a spects of f i s h e r i e s management. The by-law i t s e l f i s an a l l - i n c l u s i v e , " c l o s e d c i r c u i t " system of making and e n f o r c i n g r e g u l a t i o n s . It i s more s p e c i f i c than the Squamish p ro to type and , f u r t h e r to the power to make ' s p e c i a l o r d e r s ' to c a r r y out the b y - l a w ' s purposes , the band c o u n c i l , v i a s e c t i o n 20, g ives i t s e l f the power to i n t e r p r e t the by-law in cases of u n c e r t a i n t y . The c o u n c i l a l s o attempted to extend i t s j u r i s d i c t i o n by making the by-law a p p l i c a b l e to 70 Cowichan Indian Band water s , and such areas of re serve l and ad jacent to Cowichan Indian Band waters as may be necessary fo r the proper enforcement of t h i s by- law, whether such land be sur rendered land or o therwi se .108 In d e s i g n i n g the by- l aw, the band was a t tempt ing to / exclude e n t i r e l y the presence of f i s h e r i e s o f f i c e r s on the r e s e r v e . Thi s may very wel l be a c r i t i c a l flaw in t h i s p a r t i c u l a r by-law and o ther s l i k e i t . In f a c t , the very obvious attempt to d i s p l a c e the F i s h e r i e s Act was a d e t e r m i n i n g f a c t o r in the f a i l u r e of the by-law defence in the case o f R. v . Jimmy. Jimmy was charged with a c o n t r a v e n t i o n of the B r i t i s h Columbia Sport F i s h i n g R e g u l a t i o n s , which are made pursuant to the f e d e r a l F i s h e r i e s A c t . The par-t i c u l a r charge was r e t a i n i n g a w i l d s t e e l h e a d which had been taken by spor t f i s h i n g , or a n g l i n g . The i n c i d e n t o c c u r r e d January 27, 1984 and presented the f i r s t o p p o r t u n i t y to r a i s e the 1983 by-law in de fence . Evidence was l ed by the p r o s e c u t i o n as to the s t a t e o f the s t e e l h e a d re source in the Cowichan R i v e r and the n e c e s s i t y of c o n s e r v i n g i t . The defence argued was s i m i l a r to tha t argued in B i l l and Joe . That i s , based on the cases of Baker and B a s i l , and r e l y i n g on the p r i n c i p l e s t a t ed in F a l a r d e a u , the by-law should be he ld to a p p l y r a t h e r than the F i s h e r i e s A c t . In t h i s case the argument was a v a i l a b l e t h a t , on the face of i t , the by-law c o u l d cover the c i r c u m s t a n c e s . 71 S e c t i o n 5 g e n e r a l l y a l lows f i s h i n g by band members with on ly minor r e s t r i c t i o n s . The main t h r u s t of the Crown's argument, however, was that Baker d id not p r o p e r l y apply the rea son ing in Fa la rdeau and t h a t , once the l i n e of cases on which Fa lardeau depends i s a n a l y s e d , the f i s h e r i e s by-law cases can be d i s t i n g u i s h e d . Stacey and Montour was a l so argued by the Crown, p a r t i c u l a r l y the concept t h a t s e c t i o n 81 of the Indian Act grants on ly powers to r e g u l a t e a d m i n i s t r a t i v e s t a t u t e s . It was a l so urged upon the c o u r t t h a t , upon the ev idence and on the face of the by- l aw, the g u i d i n g precept in drawing the by-law was to exc lude a l l f e d e r a l r e g u l a t i o n that the band might t o t a l l y c o n t r o l a l l matters p e r t a i n i n g to f i s h i n g on the r e s e r v e . In r e n d e r i n g h i s d e c i s i o n , His Honour Judge Heard found f i r s t tha t the wording o f the by-law was s u f f i c i e n t to apply to the f i s h i n g done by Jimmy. He accepted the Crown's arguments tha t the case at hand was d i s t i n g u i s h a b l e from F a l a r d e a u . The e x c l u s i o n a r y aspect of the by-law became c r u c i a l . The ev idence before t h i s Court i n d i c a t e s tha t the Cowichan Band By-law No. 2 was enacted to gain complete and t o t a l c o n t r o l of 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 re serve boundar ies to the t o t a l e x c l u s i o n of the F i s h e r i e s Act and any Regu la t ions made pursuant there to and enforcement 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 By-law No. 2 i s c o n s i d e r e d in i t s e n t i r e t y , i t g ives the Band complete c o n t r o l over a l l f i s h e r i e s 72 to the t o t a l e x c l u s i o n of e i t h e r the Federa l Government or P r o v i n c i a l Government a c t i n g under t h e i r proper Act and R e g u l a t i o n s . Under the By-law as enacted by the Band, and I am not sugges t ing that i t would , cou ld decimate the f i s h in the Cowichan R i v e r system. S u r e l y when Par l i ament enacted 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 that such a by-law c o u l d be enacted .109 In l i g h t of Re Stacey and Montour , tha t r e s u l t was u n a c c e p t a b l e . F u r t h e r , i t was found tha t the r e g u l a t i o n s in q u e s t i o n were in p lace to enhance the s t e e l h e a d s tock and were neces sary even to ma in ta in numbers. In the end , His Honour Judge Heard agreed with the c o n c l u s i o n s o f His Honour Judge Gordon in Leech and found t h a t , " i n the i n s t a n t case" the by-law was not ab le to d i s p l a c e the F i s h e r i e s Act and R e g u l a t i o n s . T h i s case has been appealed by the defendant and i t may be t h a t , e v e n t u a l l y , a h i g h e r c o u r t w i l l g ive a more d e f i n i t i v e answer to the s t a tus of the f i s h e r i e s by- laws . At t h i s s t age , though, there are c l e a r l y more ques t ions than there are answers as to the ex tent to which Indian bands can r e l y on these by-laws to grant them any management c o n t r o l s . 73 CHAPTER VI CONCLUSION a) Weaknesses in the By-law Scheme It i s apparent that there are f a r more weaknesses than s t r eng ths i n the f i s h e r i e s by-law approach to n a t i v e management o f re serve f i s h e r i e s . At t h i s s t age , one would be i l l - a d v i s e d to p r e d i c t the cour t outcome of any p a r t i c u l a r case . Court d e c i s i o n s so far have been ambiguous and i n c o n s i s t e n t . The w r i t e r has endeavoured to demonstrate tha t the r e s u l t of l i t i -ga t ion to t h i s p o i n t i s not a statement tha t the band c o u n c i l f i s h e r i e s by-laws take precedence over the a p p l i c a t i o n o f the F i s h e r i e s Act on re serves where by-laws are in f o r c e . The elements of each case must be examined s y s t e m a t i c a l l y . It must f i r s t be determined whether the c i rcumstances of the i n c i d e n t f a l l w i t h i n the c o n f i n e s of the by- law. S p e c i f i c c o n f l i c t between by-law p r o v i s i o n s and F i s h e r i e s Act or Regu la t ion p r o v i s i o n s must e x i s t . The v a l i d i t y of the r e l e v a n t s e c t i o n or s e c t i o n s of the by-law must, i f c h a l l e n g e d , be de termined . With t h i s i s sue at the lower c o u r t l e v e l tha t i t i s , i t would be d i f f i c u l t to d r a f t a by-law which one c o u l d a n t i c i p a t e would r e c e i v e c o u r t r e c o g n i t i o n , and which would a l so ach ieve the purpose o f e n s u r i n g reserve f i s h e r y c o n t r o l . One o f the two predominant i s sues which 74 needs to be thoroughly addressed by the cour t s i s whether the Fa 1 ardeau l i n e of rea soning i s a p p l i c a b l e to the by-law q u e s t i o n . In the J i mmy ca se , His Honour Judge Heard f e l t that Fa !ardeau was b i n d i n g unless i t c o u l d be d i s t i n g u i s h e d and dec ided that the Crown had d i s t i n g u i s h e d J i mmy from F a ! a r d e a u . The argument i s s t i l l to be made, however, tha t Baker i n c o r r e c t l y a p p l i e d Fa l a rdeau and that the l a t t e r case should not be a p p l i e d on a par with the by-law case s . The second i s sue which needs to be thorough ly canvassed by the cour t s i s tha t o f the a s s e r t i o n of t o t a l r e g u l a t o r y c o n t r o l . The comments on the nature and f u n c t i o n o f a band c o u n c i l which are found in the Whitebear Band C o u n c i l and Re Stacey and Montour cases to the e f f e c t tha t band powers are c i r c u m s c r i b e d and of an a d m i n i s t r a t i v e nature do not speak wel l f o r the by-laws which purpor t to be s t r o n g l y r e g u l a t o r y . C e r t a i n l y His Honour Judge Heard in the Jimmy case was not pre-pared to accept the Cowichan by-law and i t s u n v e i l e d attempt to a s s e r t t o t a l r e g u l a t o r y c o n t r o l over Cowichan f i s h e r i e s . Were r e g u l a t i o n s p u r p o r t e d l y made pursuant to a by-law to be c i t e d in defence to a charge , a d e t e r m i n a t i o n would have to be made on the v a l i d i t y of the d e l e g a t i o n of the r e g u l a t o r y a u t h o r i t y . In b r i e f , cour t s a n c t i o n f o r the by-laws has been minimal so f a r . 75 These d i f f i c u l t i e s arise from the fact that the by-laws are a purely statutory t o o l , dependant for their existence on a section of the Indian Act which has been in force since 1951 and largely unused until the past few years. One can probably say with some assurance that the Legis-lature, in drafting section 81 of the Indian Act, did not envisage band councils creating their own schemes to displace the operation of the Fisheries Act. The section does not create or recognise, "rights". It merely provides an administrative vehicle. A further element of uncertainty, from the natives' position, is the presence of the ministerial veto. The fact i s , the majority of f i s h e r i e s by-laws since 1980 have been disallowed by the Minister of Indian and Northern A f f a i r s . It may be, then, that the f i s h e r i e s by-law w i l l not be available to a l l bands on an equal basis. There are other factors which may l i m i t the useful-ness of the by-law. One is the issue of enforcement. The by-laws create certain offences and most allow for the appointment of enforcement personnel. Presumably, i f fines are to be levied or imprisonment imposed, a court hearing w i l l be necessary. Most l i k e l y , the band councils would be responsible for providing the funds for prosecution and engaging a prosecutor. This could be costly and complicated and could easily act as a deterrent to enforcement. Lack of enforcement would mean a lack of e f f e c t i veness. One other consideration, which is not necessarily 76 as obvious as i t might seem at f i r s t , i s whether or not waters a l l e g e d l y covered by by-laws are t e c h n i c a l l y "on the r e s e r v e " fo r the purposes of s e c t i o n 81. That i s , r ead ing the re serve d e s c r i p t i o n s found in the 1938 Order in C o u n c i l 1036, which f o r m a l i s e d the t r a n s f e r of re serve lands from the p r o v i n c i a l to the f e d e r a l govern-ment, one f i n d s a number which read "on the l e f t bank" o f a p a r t i c u l a r r i v e r , or "on the western shore" of a p a r t i c u l a r body of water . In cases where re serve lands go on ly to the banks o f bodies o f water s , i t may be that they are not "on the r e s e r v e " , in s p i t e of the f a c t the waters are t r a d i t i o n a l l y f i s h e d . The major re serve l o c a t i o n s of the Cowichan band encompasses both s ide s of the r i v e r so that t h i s q u e s t i o n d i d not a r i s e i n the two Cowichan cases . The Squamish reserve d e s c r i p t i o n s , however, in Order i n C o u n c i l 1036, are most ly on one or the o ther s ide of the Squamish R i v e r , Burrard I n l e t or Howe Sound. b) D i f f i c u l t i e s in Resource Management Assuming that the by-laws e v e n t u a l l y r e c e i v e cour t c r e d e n c e , and g r e a t e r number o f bands make use of them, one s t i l l has to c o n s i d e r the unavoidab le d i f f i c u l t y of t r y i n g to manage the f i s h e r y , i n c l u d i n g i t s h a b i t a t , w i t h i n such a l i m i t e d j u r i s d i c t i o n . Salmon and s t e e l h e a d present complex management problems even to those with f a r g r e a t e r f i n a n c i a l r e -s o u r c e s , r e search c a p a c i t y and human resources than are 77 a v a i l a b l e to any band. Management d i f f i c u l t i e s for salmon and s t e e l h e a d a r i s e from t h e i r s e n s i t i v i t y to t h e i r env i ronment . G e n e r a l l y , the l i f e - c y c l e v a r i e s from about two to four y e a r s , p a r t l y in f r e sh water and p a r t l y in the ocean. Because they r e t u r n to spawn in t h e i r own na ta l w a t e r s , proper management of t h e i r f r e sh-wate r environment i s c r u c i a l to t h e i r s u r v i v a l . Spawning waters are a f f e c t e d by numerous f a c t o r s , such as p o l l u t i o n from sewage systems or i n d u s t r i a l p l a n t s ; the i n t r o d u c t i o n of chemica l s used f o r , among o ther t h i n g s , s p r a y i n g f o r e s t s ; h y d r o - e l e c t r i c c o n s t r u c t i o n which may b lock r i v e r ascent and d e s c e n t ; and f o r e s t cover removal which may lead to the d e s t r u c t i o n of spawning beds through changes in water l e v e l or temper-a t u r e , s i l t i n g or f l a s h f l o o d s . H O R i v e r systems d i f f e r as these i n f l u e n t i a l f a c t o r s d i f f e r so tha t each must be t r e a t e d with remedies s p e c i f i c to i t . As the f a c t o r s have an impact on the e n t i r e r i v e r system, the r i v e r system must be managed as a whole , and not on a p i e c e m e a l , or f ragmented , b a s i s . Cons ider a l so t h a t the same watersheds popular wi th salmon support a g r i c u l t u r e , i n d u s t r y , l u m b e r i n g , mining and h y d r o - e l e c t r i c p r o j e c t s and urban development. B a l a n c i n g the v a r i o u s i n t e r e s t s i s a f i n e a r t indeed and one which r e q u i r e s e x t e n s i v e m o n i t o r i n g of the system. On t h i s s c a l e , one cannot expect bands to have e i t h e r the re sources or the e x p e r t i s e to deal with l a r g e - s c a l e management. And, when seen on the l a r g e s c a l e , the 78 concept of " r e se rve f i s h e r y management" seems much l e s s feas i b l e . Not only does h a b i t a t management loom l a r g e , but n a t i v e s are faced with being the l a s t to take in the sequence of f i s h e r s . By the time the f i s h have reached the re serve l o c a t i o n s , commercial and spor t s f i s h e r s have a l r e a d y taken t h e i r c a t c h . Problems of o v e r f i s h i n g , t h e n , at the e a r l i e r s t age s , mean fewer f i s h must be taken by the Indians in o rder to a l low s u f f i c i e n t escape-ment. T h i s f u r t h e r c o m p l i c a t e s f i s h e r y management f o r the bands. As i t i s , the Indian salmon f i s h e r y accounts f o r l e s s than four per cent o f annual salmon l a n d i n g s . 1 1 1 I f the power a l l e g e d in the by-law to r e g u l a t e on an ongoing bas i s i s not l e g a l l y suppor tab le the by-law w i l l be too i n f l e x i b l e to respond to f l u c t u a t i o n s in s tock s i z e or o ther changing c o n d i t i o n s . In comple t ing t h i s examinat ion of the by-law i s s u e , one can o n l y conclude that the r e c o n c i l i a t i o n of n a t i v e c l a ims to f i s h e r y management l i e s e lsewhere than in the by-law i n s t r u m e n t . c) Recommendations Given the u n c e r t a i n t y of o b t a i n i n g m i n i s t e r i a l approval f o r the b y - l a w s ; the u n p r e d i c t a b i l i t y of the c o u r t s ' response to these b y - l a w s ; the probable l i m i -t a t i o n on the terms of the b y - l a w s ; and the p r a c t i c a l d i f f i c u l t i e s and demands of management, i t i s probable 79 that l i t t l e can be accompl i shed by us ing the by-law as a management t o o l . It may succeed in e x c l u d i n g the F i s h e r i e s Act on o c c a s i o n but cannot be sa id to be a r e l i a b l e dev ice fo r the implementat ion of management g o a l s . The recent appearance o f the by-laws seems to be a r e a c t i o n to the d i s s a t i s f a c t i o n Indians have f e l t with the Department of F i s h e r i e s , as wel l as Indian A f f a i r s , in having t h e i r f i s h e r y c l a ims r e c o g n i s e d . Indians would be w e l l - s e r v e d i f the c u r r e n t by-law c o n t r o v e r s y were to generate an a p p r o p r i a t e p o l i t i c a l re sponse . The a p p r o p r i a t e n e s s of the response i s something tha t was addressed by Peter Pear se , in the r epor t of h i s Commission. He urges the government to r ecogn i se the v a l i d i t y of n a t i v e f i s h e r y c l a i m s , at l e a s t to some e x t e n t . It i s obvious that some r e c o g n i t i o n must be accorded the f i s h e r y c l a i m s . It i s obvious the nature of the f i s h e r y re source r e q u i r e s c o - o p e r a t i v e management t e c h -n i q u e s . I t i s j u s t as obvious t h a t the i n t e r e s t s o f o t h e r re source user groups must be taken i n t o the b a l a n c e . I f there i s ever to be harmony among the I n d i a n s , the f e d e r a l government and o ther f i s h e r s , c o - o p e r a t i v e management schemes must e v o l v e . It has been po in ted out t h a t , at l e a s t in the Cowichan band, the c o u n c i l has some de f ac to c o n t r o l over f i s h e r i e s as a r e s u l t of a r range-ments made between the band and the Department. The c o - o p e r a t i v e approach to management was a l so c o d i f i e d in the N i t i n a h t and Sheshaht by-laws and t h i s would seem to be an a u s p i c i o u s development which might be taken f u r t h e r . 8 0 Pearse also makes some proposals of a positive nature. For the economic welfare of the Indians he advocates encouraging them and assisting them to become more involved 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 s p e c i f i c annual catch allocation for each interested band is recommended in order to a l l e v i a t e the problem of having Indian catch numbers r e s t r i c t e d to protect escape-ment after the Department has analysed the impact of the commercial and sport catch. 1 ^ Pearse suggests having the bands become involved in the administration and enforcement of catch allo c a t i o n provisions; for example, apportioning the catch among band members; issuing individual permits to band members where a general permit has been issued by the Department; and supervising band f i s h i n g a c t i v i t i e s . A 1 4 Some bands in B r i t i s h Columbia already operate enhancement projects and further involvement should be fostered by the government. This aspect is recognised by Pearse, who also would have Indian mariculture pro-moted. Pearse recommends that a l l these steps be accomplished by agreement between the Department and the band, more or less by-passing the by-law controversy. The Minister of Fisheries and Oceans should i n i t i a t e discussions with the Minister of Indian and Northern A f f a i r s and representatives of Indian organi-sations to find means of reconciling band fishing by-laws with the paramount r e s p o n s i b i l i t y of the Department of Fisheries and Oceans for f i s h conser-vation and management.115 81 Reconciliation is necessary to end the controversy over the competing claims. In order for the Indians to participate actively and meaningfully in fish e r i e s management they w i l l require assistance of a concrete nature, tec h n i c a l l y , f i n a n c i a l l y and educationally. The native claim has been asserted and i t is now up to the federal government to respond to i t . 82 N O T E S 1. Terms o f Reference of the Commission on P a c i f i c F i s h e r i e s P o l i c y , Appendix A , " T u r n i n g the T i d e : A New P o l i c y fo r Canada's P a c i f i c F i s h e r i e s " , Peter H. Pear se , Commiss ioner , Vancouver , 1982. 2. I b i d . , P r e f a c e , p. v i i . 3. As r e p o r t e d in The Vancouver Sun, March 15, 1983 , " N a t i v e r i g h t s w i l l not d ie on vine when p r e m i e r s ' conference c o n c l u d e s " . 4. "High l e v e l s e s s i o n on n a t i v e r i g h t s reaches impasse" , The Sun, March 9, 1984. 5. Minutes of Proceedings of the S p e c i a l Committee on Indian S e l f - G o v e r n m e n t , House of Commons, Issue No. 40, p . v . 6. I b i d , p. 134. 7. Response of the Government to the Report o f the S p e c i a l Committee on Indian S e l f - G o v e r n m e n t , Ottawa, March , 1984, p. 3. 8. " Ind ians seek g r e a t e r c o n t r o l of f i s h e r y r e s o u r c e " , The Sun, November 29, 1983. 9. "Ottawa favours I n d i a n s , f i s h e r m e n ' s groups s a y " , The Sun, December 9 , 1983. 10. P h i l i p D r u c k e r , C u l t u r e s of the N. P a c i f i c C o a s t , (San F r a n c i s c o , 1965) , p. 13-14. 11. I b i d , pp. 94-95. 12. Anthony Netboy, The Salmon: T h e i r F igh t fo r  Surv i val , ( B o s t o n , 1974), p. 372. 13. Dorothy Blacky Smi th , James Douglas : Fa ther o f  B r i t i s h Columbi a , ( T o r o n t o , 1971), p. 35. 14. I b i d , p. 32. 15. Smi th , "Douglas r e s i g n e d the p o s i t i o n as C h i e f F a c t o r in 1858". I b i d , pp 41-42. 16. I b i d , p. 47. 83 17. Derek P e t h i c k , James Douglas : Servant of Two  Empi r e s , (Vancouver , 1969 ) , p. 7 7. 18. Reproduced in Papers Connected with the Indian Land  Question 1850-1975, Lands and Works Department, V i c t o r i a , 1875. 19. L e t t e r to Douglas from B a r c l a y , December, 1849, quoted in P e t h i c k , s u p r a , note 17, p .78 . 20.. L e t t e r to B a r c l a y from Douglas , quoted in P e t h i c k , s u p r a , note 17, p. 79. 21. Supra , note 18. 22. Schedule to the Order of Her Majesty 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 Columbia i n t o the Union - A r t i c l e 13, R . S . C . 1970, Append ice s . 23. B r i t i s h Columbia O r d e r - I n - C o u n c i 1 1036, 1938. 24. Robert B. Lane and Barbara Lane, " R e c o g n i t i o n of B r i t i s h Columbia Indian F i s h i n g Rights by F e d e r a l - P r o v i n c i a l Commiss ions " , prepared f o r U . B . C . I . C . , September, 1978, p .12 . 25. Excerp t from a l e t t e r from David L a i r d , Federa l M i n i s t e r of the I n t e r i o r , to Commissioner Alexander C. Ander son , dated August 25, 1876. Reproduced in a paper prepared f o r the U . B . C . I . C . by Robert B. Lane and Barbara Lane, September, 1978. 26. See C h r i s t o p h e r J . Pi bus , "The F i s h e r i e s Act and Nat ive F i s h i n g Rights in Canada: 1970-1980", U of T , Fac . L . R . 39 :43-54 , S p r i n g 1981, f o r a d i s c u s s i o n of the cases 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 . Brad ley 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 20, 1980, u n r e p o r t e d : R .v . W i l l i a m  Char l e s Adolph et a l . , Goughton, J . , Car iboo County C o u r t , October 26, 1980, u n r e p o r t e d . 29. I b i d . 30. Lane and Lane, s u p r a . , note 24, p . 2 . 31. P i b u s , s u p r a . , note 26, p .50 . 32. Netboy, s u p r a . , note 12, p. 371. 33. Indian A c t , R .S . 1970, C. 149, s e c t i o n 81. 84 34. Indian A c t , 1951, C. 29, s e c t i o n 80 (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 re serve matters such as t r e s p a s s ; re serve r o a d s , p u b l i c works ; e t c . , but with no r e f e r e n c e to f i s h or w i l d l i f e r e s o u r c e s . See Indian A c t , R.S 1927, C. 81, s e c t i o n 185. 35. Informat ion of the by-laws in e x i s t e n c e as wel l as those d i s a l l o w e d has been o b t a i n e d from a copy of a By-Law Index forwarded by the Department of Indian A f f a i r s and Northern Development. 36. S t a t u t o r y Instruments Re q u i a t i o n s , C . R . C . 1978 , c. 1509 , s e c t i o n 15(~2)(e). 15(2) 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 of r e g u l a t i o n s , be ing 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 tha t the Governor in C o u n c i l i s s a t i s f i e d a f f e c t or are l i k e l y to a f f e c t on ly a l i m i t e d number o f persons and with r e spec t to which the Governor in C o u n c i l i s s a t i s f i e d tha t reasonable steps have been or w i l l be taken for the purpose of b r i n g -ing t h e i r purpor t to the n o t i c e o f those persons a f f e c t e d or l i k e l y to be a f f e c t e d by them, are hereby exempt from p u b l i c a -t i o n : (e) by-laws made by the c o u n c i l o f a band under s e c t i o n 81 or 83 of the Indian A c t ; 37. These dates and s i m i l a r i n f o r m a t i o n in t h i s s e c t i o n have been taken from the Department of Indian and Northern A f f a i r s By-Law Index and cop ie s of the m a j o r i t y of the by-;l aws.. 38. Cowichan Band B y - l a w , 1956, s e c t i o n 1, see Appendix " A " 39. Appendix The Squamish Indian Band By-" B " . law No. 10, s e c t i o n 1, see 40. I b i d , s e c t i o n s 3, 7, 15. 41. lb'id , s e c t i o n 5. 42. Ib id , s e c t i o n s 4, 11. 43. I b i d , s e c t i o n s 7, 8, 10. 44. I b i d , s e c t i o n s 12, 13. 45. I b i d , s e c t i o n 14. 46. F i s h e r i e s A c t , R .S . , C. 119, s e c t i o n 12 47. I b i d , s e c t i o n 20 (6 ) . 85 48. Squamish B y - l a w , s e c t i o n 9; F i s h e r i e s Ac t , s e c t i o n 23. 49. Compare s e c t i o n 10 of the By-law with s e c t i o n 24(1) of the F i s h e r i e s A c t ; s e c t i o n 11 of the By-law wi th s e c t i o n 30 of the F i s h e r i e s A c t ; s e c t i o n 12 of the By-law with s e c t i o n 33(2) of the A c t ; and s e c t i o n 13 with 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 Band, s e c t i o n 1, see Appendix " C " . 51. I b i d , s e c t i o n 12. 52. I b i d , s e c t i o n 4. 53. l b i d , s e c t i on 10. 54. I b i d , see c l o s i n g . 55. Br idge R i v e r Indian Band F i s h i n g By-law No. 1-1980, s. 1 ( a ) , Appendix " D " . 56. I b i d , s e c t i o n 16. 57. Cowichan Indian Band F i s h i n g B y - l a w , 1983, No. 2, s. 14, Appendix " E " . 58. N i t i n a h t Band B y - l a w , 1982, s 14, Appendix " F " . 59. I b i d , s e c t i o n 15. 60. Indian A c t , s. 82 (2 ) . 61. C o n v e r s a t i o n with Dennis Novak, Manager of Legal and S t a t u t o r y Requirements , Department of Indian and Northern A f f a i r s , March 20, 1983. 62. L e t t e r from J . D . Leask , D i r e c t o r G e n e r a l , Reserves & T r u s t s , Department of Indian and Northern A f f a i r s , to L . J . :' P i n d e r , Counsel f o r the Cowichan Indian Band, March 3, 1983. 63. R .v . Wal ter L e e c h , May 12, 1983, L i l l o o e t , B . C . , Gordon, P . C . J . , u n r e p o r t e d , p. 5. 64. I b i d , p. 4. 65. I b i d , p . 5 . 66. Br idge R i v e r By- l aw, Appendix " D " , s . 9 . 6 7. R .v . L e e c h , s u p r a , note 63, p . 5 . 68. Squamish Band By- l aw, Appendix " B " , s. 6. 69. (1972) 6 W.W.R. 450. 70. R .v . Eugene Baker , June 3, 1983, Vancouver , B . C . , Sheppard, C . C . J . , u n r e p o r t e d , p. 4. 86 71. I b i d , p. 4. 72. R .v . Roger Steven B a s i l , October 26, 1983, M a t s q u i , B . C . , F r i e s e n , P . C . J . , u n r e p o r t e d , p. 5. 73. R. v. Baker , s u p r a , note 70, p. 2. 74. R .v . Basi1 , s u p r a , note 72, p. 7. 75. Br idge R i v e r By- law, s u p r a , note 55, s. 4. 76. R .v . B a s i l , s u p r a , note 72, p. 6. 77. I b i d , p . 7 . 78. (1972) 6 WWR 450. 79. (1914) 6 WWR, 14441. 80. JJ929) 1 WWR, 402. 81. [1945] 1 WWR, 266. 82. s u p r a , note 80, pp. 402-403. 83. s u p r a , note 78, pp. 457. 84. I b i d , pp. 457 85. 1943 2 WWR, 268. 86. 1949 1 WWR, 14. 87. I b i d , pp. 15. 88. Supra , note 72, p. 3. 89. Squamish band b y - l a w , Appendix " B " , ss 12-13. 90. I b i d . , p. 14. 91. Ian McF. Rogers , The Law of Canadian M u n i c i p a l  C o r p o r a t i o n s ( T o r o n t o : Car swe l l C o . , 2nd E d . , 1984) p. 370. 92. David J . M u l l a n , A d m i n i s t r a t i v e Law, (Car swe l l C o . , 1973) pp. 3-52, 3-53. 93. | l958l 29 W.W.R. , 471. 94. \l982] 3 W.W.R. 554. 95. I b i d . , pp. 559-561 96. ( 1981) 63 C . C . C . (2d) , 61 97. I b i d . , p. 68. 87 98. The account of the Cowichan band's p o s i t i o n was given by C h i e f Dennis Alphonse in an i n t e r v i e w granted March 21, 1984. 99. Trevor F i e l d s was i n t e r v i e w e d A p r i l 19, 1984. 1Q0. (1979] 5 W.W.R. 364 101. An o p i n i o n l e t t e r had been sent to F i s h e r i e s and Environment Canada August 17, 1978 from the Department of J u s t i c e . Th i s o p i n i o n f i l t e r e d through to F i s h e r i e s o f f i c e r s in Western Canada in 1980 -81 . 102... B r i t i sh Columbia F i s h e r y ( genera l ) R e g u l a t i o n s , s. 19(2) . 1Q3 B r i t i s h Columbia Sport 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 . 1984-2715, s e c t i o n 60. 104. S tee lhead i n f o r m a t i o n was p r o v i d e d by Robert Hooton, F i s h e r i e s b i o l o g i s t wi th the M i n i s t r y of Env i ronment , r e s p o n s i b l e fo r s t e e l h e a d management on Vancouver I s l a n d . 105. Supra , note 102. 106. Cowichan Band By-law #1, s . l . See Appendix " A " . 107. Regina v. Cypr i an Bob, County Court of Wes tmins te r , unrepor ted d e c i s i o n of His Honour Judge D . E . McTaggart , May 10, 1983. 108. An o p i n i o n l e t t e r had been sent to F i s h e r i e s and Environment 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 through to F i s h e r i e s o f f i c e r s in Western Canada in 1980-81. 109. Regina v. John Loui s Jimmy, unrepor ted d e c i s i o n of His Honour Judge Heard , Duncan P r o v i n c i a l C o u r t , December 14, 1984, p p . 3 - 4 . 110. F r e d e r i c k H. Wooding, The Book of Canadian F i s h e s , ( T o r o n t o : McGraw H i l l Ryerson L i m i t e d ) , 1st E d . , 1959, p. 42. 111. Pearse Repor t , supra note 1, p. 175. 112. I b i d . , Ch. 12. 113. I b i d . , p. 181. 114. I b i d . , p. 183-184. 115. I b i d . , p. 184. 88 BIBLIOGRAPHY Chi 1derhose , R . J . ; T r i m , M a r j . P a c i f i c Salmon. Vancouver : Douglas & M c l n t y r e , 1979. D r u c k e r , P h i l i p . C u l t u r e s of the North P a c i f i c Coast . San F r a n c i s c o : Chandler P u b l i s h i n g Company, 1965. Evans , J . M . de Smi th ' s J u d i c i a l Review of A d m i n i s t r a t i v e A c t i o n , 4th Ed. London: Stevens & Son L i m i t e d , 1980. M u l l a n , David J . A d m i n i s t r a t i v e Law. The Carswel l Company L i m i t e d , 1973. Netboy, Anthony. The Salmon: T h e i r F i g h t fo r S u r v i v a l . Ba s ton : Houghton M i f f l i n Company, 1974. Netboy, Anthony. The Columbia R i v e r Salmon and S tee lhead T r o u t :  T h e i r F i g h t for S u r v i v a l . S e a t t l e and London: U n i v e r s i t y of Washington P r e s s , 1980. • Netboy, Anthony. Salmon: The W o r l d ' s Most Harassed F i s h . T u l s a : Winches ter P r e s s , 1980. P e t h i c k , Derek. James Dougla s : Servant o f Two Empires . Vancouver : M i t c h e l l Press L i m i t e d , 1969. P i b u s , C h r i s t o p h e r J . "The F i s h e r i e s Act and Nat ive F i s h i n g Right s i n Canada: 1970-1980." T o r o n t o : U n i v e r s i t y of Toronto F a c u l t y Law Review. 39:43-54 Spr ing ' 81 . Rogers , Ian Mac F. The Law of Canadian M u n i c i p a l C o r p o r a t i o n s ,  2nd Ed. T o r o n t o : Car swel l Company L i m i t e d . S m i t h , Dorothy B l akey . James Dougla s : Fa ther o f B r i t i s h  Co lumbia . T o r o n t o : Oxford U n i v e r s i t y P r e s s , 1971. Wooding, F r e d e r i c k H. The Book of Canadian F i s h e s . T o r o n t o : McGraw-Hi l l Ryerson L i m i t e d . 1st E d . , 1959 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 following by-law pursuant to paragraphs (o) and (r) of Section 80 of the Indian Act. A by-law to provide for the preservation, protection and management of f i s h in the Cowichan Indian Reserve in the Province of B r i t i s h Columbia. FISHING 1. No person, other than a member of the band, shall be permitted to f i s h in the reserve without f i r s t obtaining a written permit to so do from the person authorized by the Council to grant such permission. 2. Permits may be obtained only on production of a valid and subsisting B r i t i s h Columbia Provincial License, i f such is required by the person applying,'to f i s h in provincial waters contiguous to the reserve. 3. Such permit shall authorize the permittee to f i s h by angling only and may be subject to a fee established from time to time by resolution of the Council of the band. 4. The d e f i n i t i o n of angling, open and close seasons, 90 coarse f i s h , game f i s h , resident, total length, and a l l other matters not s p e c i f i c a l l y mentioned in this by-law shall be as provided in the Special Fishery Regulations for the Province of B r i t i s h Columbia. 5. The Chief and Councillors of the Band, Indian constables and any other person or persons named by the Council shall be e x - o f f i c i o o f f i c e r s for the enforcement of this by-law. 6. Any o f f i c e r for the enforcement of this by-law shall forthwith seize a l l f i s h protected by this by-law, which a) is found by him in possession of any person, other than a member of the Band, who is not in possession of a permit under Sec. 2 of this by-1 aw; b) appears to have been taken by some unlawful means; and shall bring such f i s h before a police magistrate, stipendiary magistrate or person appointed by the Governor in Council to be a j u s t i c e of the peace for offences under the Indian Act. 7. Where a person is convicted of an offence under this by-law, the convicting court or judge may order that the f i s h , in addition to any penalty imposed, are f o r f e i t e d to Her Majesty for the benefit of the band provided, however, that the f i s h so f o r f e i t e d shall be delivered to a charitable i n s t i t u t i o n designated by the Co unci 1 . 91. PENALTIES 8. Any person who violates the provisions of this by-law shall be guilty of an offence and shall be l i a b l e on summary conviction to a fine not exceeding one hundred dollars or imprisonment for a term not exceeding t h i r t y days, or both fine and imprisonment. 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 of the Squamish Indian Bank enacts as fol1ows: 1. In this By-law unless the context otherwise requi res : a) "Squamish Indian Band water" means a l l water situated upon or within the boundaries of Reserves set aside for the use and benefit of the Squamish Bank of Indians. b) "Fish" includes s h e l l f i s h , crustaceans and mari ne an i mals. c) "Fishery" includes the area, l o c a l i t y , place or station in or on which a pound, seine, net, weir or other fishing appliance is used, set, placed, or located, and the area, tract or stretch of water in or from which f i s h may be taken by the said pound, seine, net, weir, or other fis h i n g appliance, and also the pound, seine, net, weir, or other fishing appliance used in connection therewith. 93 d) " F i s h i n g " means f i s h i n g for or c a t c h i n g f i s h by any method. e) "Band C o u n c i l " means the c o u n c i l of the Squamish Indian Band. f) "Band manager" means that person so appointed by the Band C o u n c i l . 3. Band Counc i l may appo int f i s h e r y o f f i c e r s whose act s and d u t i e s are as d e f i n e d by t h i s by-law and amendments hereto and whose t i t l es are .as ; spec f f i e d : in t h e i r appointments . 4. Salmon f r y , par r and smolt s h a l l not at any time be f i s h e d f o r , caught or k i l l e d , and no salmon or g r i l s e of l e s s weight than three pounds s h a l l be caught or k i l l e d , o therwise than by a n g l i n g with hook and 1i ne. 5. No person o ther than a member of the Squamish Indian Band s h a l l engage in f i s h i n g upon Squamish Indian Band waters . 6. Members of the Squamish Indian Band s h a l l be pe rmi t t ed to engage in f i s h i n g upon Squamish Indian Band waters at any time and by any means except by the use of r o c k e t s , e x p l o s i v e m a t e r i a l s , p r o j e c t i l e s , or s h e l l s . 94 7. Any fishery o f f i c e r appointed hereunder may d i r e c t , either in writing or o r a l l y on sight, that nets or other fishing apparatus be reduced in size to occupy less than one-third (1/3) of the diameter of any stream or r i v e r . 8. Where unused s l i d e s , dams, obstructions, or any-thing detrimental to f i s h e x i s t , and the owner or occupier thereof does not after noticy given by the Band Council to remove the same, or i f the owner is not resident in Canada, or his exact place of r e s i -dence is unknown to the Band Council, the Band Council may, without being l i a b l e to damages, or in any way to indemnify the said owner or occupier, cause such s l i d e , dam, obstruction, or thing detrimental to f i s h l i f e to be removed or destroyed and in cases where notice has been given to the owner or occupier may recover from the said owner or occupier the expense of so removing or destroying the same. 9. Every person using stakes, posts, buoys or other materials placed for f i s h i n g purposes in any water shall remove the same within forty-eight (48) hours after ceasing to use them. 10. One-Third (1/3) of the width of any river or stream, and not less than two-thirds (2/3) of the width of the 9.5 main channel at low t i d e , in every t i d a l stream s h a l l be always l e f t open, and no kind of net or o ther f i s h i n g appara tus , l o g s , or any m a t e r i a l of any kind s h a l l be used or p l aced t h e r i n . 11. The eggs or f r y of f i s h on the spawning grounds , s h a l l not at any time be d e s t r o y e d . 12. No person s h a l l cause or knowingly permit to pass i n t o , or put or knowingly permit to be put , l i m e , chemical substances or d r u g s , poisonous m a t t e r , dead or decay ing f i s h , or remnants t h e r e o f , m i l l rubb i sh or sawdust or any o ther 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 s e c t i o n or n o t , in any water f requented by f i s h , or that f lows i n t o such wate r , nor in i c e over e i t h e r such water s . 13. No person engaging in l o g g i n g , l u m b e r i n g , , l and c l e a r i n g or o ther o p e r a t i o n s , s h a l l put or knowingly permit to be p u t , any s l a s h , stumps or o ther d e b r i s i n t o any water f r equented by f i s h or t h a t f lows i n t o such wate r , or on the i c e over e i t h e r such water , or at a p lace from which i t i s l i k e l y to be c a r r i e d i n t o e i t h e r such water . 14. The Band manager may make r e g u l a t i o n s fo r c a r r y i n g out the purposes 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 wi thout r e s t r i c t i n g the g e n e r a l i t y of 96 the foregoing, may make regulations: a) for the proper management and control of f i s h -e r i e s ; b) respecting the conservation and protection of f i s h ; c) respecting the catching, loading, landing, handling, transporting, possession and disposal of f i s h ; d) respecting the operation of fi s h i n g vessels; e) respecting the use of fi s h i n g gear and equipment; f) respecting the obstruction and pollution of any waters frequented by f i s h ; g) respecting the conservation and protection of spawn ing grounds ; h) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this by-law and providing for the carrying out of those duties and powers; i) authorizing a person engaged or employed in the administration or enforcement of this by-law to-vary and closed- time•or f i s h i n g quota-that has'been fixed by the regulations. 15. Any fishery o f f i c e r appointed hereunder may enforce the provisions of this by-law or any regulation made hereunder. 97 16. Everyone who violates or prepares to violate any provisions of this by-law, or any regulation, is guil t y of an offense punishable on summary conviction and is l i a b l e to a fine of not more than $100.00. 17. When not otherwise specified every proprietor, owner, agent, tenant, occupier, partner or person actually in charge, either as occupant or servant, shall be deemed to be j o i n t l y and severally l i a b l e for any of the provisions of this by-law or of any regulati on. 18. Penalties incurred under this by-law or amend-ments herein shall be sued for within two years from the commission of the offence. 19. Except insofar as in this by-law is otherwise s p e c i a l l y provided a l l penalties and f o r f e i t u r e s incurred under this by-law or amendments hereto are recoverable and enforcable by summary proceedings taken under the provisions of the Criminal Code rel a t i n g to summary convictions. 20. Should any v i o l a t i o n of this by-law or of any regulation continue for more than one day then each day during which such v i o l a t i o n continues constitutes a separate offence and may be punished as such. 21. -Tlhis by-law may be cited for a l l purposes as "Fishing By-law, 1977, No. 10". Considered and passed by the Squamish Band Council, on the 12th day of September, 1977. 98 APPENDIX " C " THE UPPER NICOLA INDIAN BAND WHEREAS paragraph (c) of S e c t i o n 81 of the Indian Act grants j u r i s d i c t i o n to the Band Counc i l to r e g u l a t e law and o r d e r . And t h i s would enable F i s h e r i e s O f f i c e r s to ma in t i an law and order at f i s h i n g s t a t i o n s . WHEREAS paragraph (o) of S e c t i o n 81 of the Indian Act grants j u r i s d i c t i o n to the Band Couns i l to p r e s e r v e , p r o t e c t and manage fur b e a r i n g a n i m a l s , FISH and o ther game. WHEREAS paragraph ( r ) of S e c t i o n 81 o f the Indian Act grants j u r i s d i c t i o n to the Band C o u n c i l f o r the i m p o s i t i o n o f a p e n a l t y f o r v i o l a t i o n of By-Laws. WHEREAS i t becomes neces sary fo r the peace , o rder and good government of the Indian Band to r e g u l a t e 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 Indian Food F i s h e r i e s and f i s h i n g . BY-LAW No. 80-1 BY-LAW FOR THE PRESERVATION, PROTECTION AND MANAGEMENT OF FISH ON THE RESERVE The Band C o u n c i l of the Upper N i c o l a Indian Band enacts as fo l1ows : 1. In t h i s By-law unless the context o therwise i requi res : 99 a) "Upper N i c o l a Indian Band Waters" means a l l water s i t u a t e d upon or w i t h i n the boundar ies of Reserves set a s ide fo r the use and b e n e f i t of the Upper N i c o l a Band of Indians and a l l areas of land and water which from time immemorial were des ignated Indian food f i s h i n g w a t e r s ; more s p e c i f i c a l l y those in d i f f e r e n t water sheds , lakes and s treams. b) " F I S H " i n c l u d e s : -Sockeye Salmon or Kokanee (Oncorhynchus Nerka) - S t e e l h e a d , Kamloops: Rainbow Trout (Salmo Ga i r d n e r i ) -Coho Salmon (Oncorhynchus K i s u t c h ) -Chinook Salmon (Oncorhynchus Tshawytscha) - B u r b o t - l i n g Cod (Lota Lota) - D o l l y Varden ( S a l u e l i n u s Malma) -Nor thern Squawfish (Ptychochei1 us Oregonense) -Large Sca le 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 (Cypr inus C a r p i o ) -Reds ide S h i n e r ( R i c h a r d s o n i u s B a l t e a t u s ) -Peamouth Chub ( M y l o c h e i l u s Caurinum) -Leopard 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 (Entosphenus T r i d e n t a t u s ) -And any o t h e r spec ie s of f i s h or c ru s t acean which may be i d e n t i f i e d from time to t ime . c) " F i s h e r y " i n c l u d e s the a r e a , l o c a l i t y , p lace or s i t u a t i o n in or on which a pound, n e t , wei r or o t h e r f i s h i n g a p p l i a n c e i s used , s e t , p l a c e d , or l o c a t e d , and the a r e a , t r a c t or s t r e t c h of water in or from which f i s h may be taken by the s a i d pound, n e t , w e i r , or o t h e r f i s h i n g a p p l i a n c e used in connec-t i o n t h e r e w i t h ; d) " F i s h i n g " means f i s h i n g fo r or c a t c h i n g f i s h by any method; e) "Band C o u n c i l " means the C o u n c i l of the Upper N i c o l a Indian Band; f) "Band Manager" means that person so appointed by the Band Counci 1 ; g) "Fishery O f f i c e r " means persons so appointed by the Band Council, and includes Band Constables. 2. This By-Law applies over a l l upper Nicola Band waters: Nicola Lake 1 R#l Chapperon Lake 1. R. #5 Hamilton Creek 1. R#2 Chapperon Creek 1. R. #6 Douglas Lake 1. R. #3 Salmon Lake 1. R. #7 Spahomin Creek 1. R. #4 Spahomln Creek 1. R. #8 3. Band Council may appoint fishery o f f i c e r s whose acts and duties are as defined by this By-Law and amendments hereto and whose t i t l e s are as specified in their appoint-ments. 4. No person other than a member of the Upper Nicola Band shall engage in f i s h i n g upon Upper Nicola Indian Band waters without Band Council permission. 5. Members of the Upper Nicola Indian Band shall be permit-ted to engage in f i s h i n g upon Upper Nicola Indian 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 , or s h e l l s . 6. a) Where unused s l i d e s , dams, obstructions, or any-thing detrimental to f i s h e x i s t , the Band Council may cause such s l i d e s , dams, obstructions, or anything d e t r i -mental to f i s h l i f e to be removed or destroyed; b) Without l i m i t i n g the general power given to the Band Council in sub-section A, i f the owner is determined, after the Band Council has removed the obstruction, the Band Council may recover from the owner, the expense of removing or destroying the obstruction. 101 7. No person shall cause or knowingly put, or knowingly permit to be put, lime, chemical substances, or drugs, poisonous matter, dead or decaying f i s h , or remnants thereof, mill rubbish or sawdust or any other deleterious substance or thing, whether the same is of a l i k e character to the substances named in this section or not, in any water frequented by f i s h , or that flows into such water, nor on ice either such waters. 8. The eggs or fry of f i s h on the spawning grounds, shall not at any time be destroyed. 9 . No person engaging in logging, lumbering, land clearing or other operations shall put or knowingly permit to be put, any slash stumps or other debris into any water frequented by f i s h or that flows into such water, or on the ice over either such water, or at a place from which i t is l i k e l y to be carried into either such water. 10. The Band Manager and Band Council may make regulations for carrying out the purposes and provisions of this 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 generality of the foregoing, may make regulations: a) for the proper management and control of f i s h e r i e s ; b) respecting the conservation and protection of f i s h ; c) respecting the catching, loading, landing, handling, transporting, possession and disposal of f i s h ; d) respecting the use of fis h i n g gear and equipment; 102 e) 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 of any waters f requented by f i s h ; f) 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 of spawn-ing grounds ; g) p r e s c r i b i n g the powers and d u t i e s of persons engaged or employed in the a d m i n i s t r a t i o n or enforcement of t h i s By-Law and p r o v i d i n g fo r the c a r r y i n g out of those du t i e s and powers; h) a u t h o r i z i n g a person engaged or employed in the a d m i n i s t r a t i o n or enforcement of t h i s By-Law to vary any c l o s e d time or f i s h i n g quota that has been f i x e d by the r e g u l a t i o n s . 11. Any f i s h e r y o f f i c e r or Band Constab le du ly appo inted hereunder may en force the p r o v i s i o n s of t h i s By-Law or any r e g u l a t i o n s made hereunder . 12. Every person who v i o l a t e s any p r o v i s i o n of t h i s By-Law i s g u i l t y of an o f fence and is l i a b l e upon summary convi c t i ons : a) f o r the f i r s t o f fence to a f i n e o f not l e s s than $200.00 ; and not more than $100.00 ( s i c ) or to i m p r i s o n -ment f o r a term of not l e s s than 1 month and not more than 2 months; or to both f i n e . a n d impr i sonment ; and b) f o r a second and each subsequent o f fence to a f i n e of not l e s s than $500.00 and not more than $200.00 , ( s i c ) or to imprisonment fo 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 impri sonment . 103 13. When not o therwise s p e c i f i e d every p r o p r i e t o r , owner, agent , tenant o c c u p i e r , pa r tner or person a c t u a l l y in charge , e i t h e r as occupant or s e r v a n t , s h a l l be deemed to be j o i n t l y and s e v e r a l l y l i a b l e fo r any of the p r o v i -s ions of t h i s By-Law or any r e g u l a t i o n . 14. Every f i n e , pena l ty or f o r f e i t u r e imposed under t h i s By-Law or r e g u l a t i o n s belongs to the Upper N i c o l a Indian Band f o r the b e n e f i t of the Band wi th r e s p e c t to the o f fence committed and the Band c o u n c i l may from time to time d i r e c t that the f i n e , p e n a l t y or f o r f e i t u r e s h a l l be pa id to bear in whole or in par t the expense of admin i s -t e r i n g the By-Law under which the f i n e , pena l ty or f o r f e i -ture i s imposed, or tha t the f i n e , p e n a l t y or f o r f e i t u r e s h a l l be a p p l i e d i n the manner tha t the Band C o u n c i l con-s i d e r s w i l l best promote the purposes of the By-Law under which the f i n e , p e n a l t y or f o r f e i t u r e i s imposed, or the a d m i n i s t r a t i o n of tha t By-Law. 15. Should any v i o l a t i o n of any By-Law or any r e g u l a t i o n c o n t i n u e f o r more than one day then each day d u r i n g which v i o l a t i o n cont inues c o n s t i t u t e s a separate o f fence and may be punished as such . T h i s By-Law may be c i t e d f o r a l l purposes as " F i s h i n g By-Law, 1980 No 8 0 - 1 " . Cons idered and passed by the Upper N i c o l a Band C o u n c i l , on the 1st day of May, 1980. The Upper N i c o l a Indian Band C o u n c i l , persuant to the Indian Act may from time to time make r e g u l a t i o n s not in c o n s i s t a n t with t h i s By-Law as they may deem necessary or 104 advisable for the purpose of carrying into effect the provisions of this By-Law according to their true intent and for supplying any deficiency therein and, without r e s t r i c t i n g the generality of that power. 105 APPENDIX " D " BRIDGE RIVER INDIAN BAND FISHING BY-LAW No. 1-1980 WHEREAS paragraph (c) of S e c t i o n 81 of the Indian Act impowers the Band C o u n c i l to r e g u l a t e law and o r d e r , and t h i s would enable F i s h e r i e s O f f i c e r s to ma inta in law and o r d e r at f i s h i n g s t a t i o n s . WHEREAS paragraph (o) of S e c t i o n 81 of the Indian Act impowers the Band C o u n c i l to p r e s e r v e , p r o t e c t and manage fur bear ing a n i m a l s , f i s h and o t h e r game. WHEREAS paragraph ( r ) of S e c t i o n 81 of the Indian Act impowers the Band C o u n c i l f o r i m p o s i t i o n o f a pena l ty f o r v i o l a t i o n of By-laws THEREFORE the Band C o u n c i l ( Ind ian Government) of the Br idge R i v e r Indian Band enacts the f o l l o w i n g BY-LAW FOR THE PRESERVATION, PROTECTION AND MANAGEMENT OF FISH. 1. In t h i s By-law' unles s the contex t o therwise r e q u i r e s : a) " B r i d g e R i v e r Indian Band Waters" means a l l waters s i t u a t e d upon, w i t h i n the boundar ies of r e serves or o therwise f a l l i n g i n t o the j u r i s d i c t i o n of the Indian Government or as set a s ide f o r the e x c l u s i v e use and b e n e f i t of the Br idge R i v e r Indian Band of I n d i a n s . b) " F i s h " i n c l u d e s : Tyee S p r i n g Salmon, Chinook Salmon, Sockeye Salmon, Coho Salmon, B r u b o t l i n g Cod , D o l l y Varden , Sturgeon 1 , S tee lhead and may i n c l u d e marine animals which may be i d e n t i f i e d from time to t ime . 106 c) " F i s h i n g " means c a t c h i n g f i s h by any method i n c l u -ding d i p - n e t t i n g , set d i p - n e t t i n g and g i l l n e t t i n g or by any o ther method of c a t c h i n g f i s h as a u t h o r i z e d by Band Counc i 1 . d) " F i s h e r y " i n c l u d e s the a r e a , l o c a l i t y , p lace or s i t u a t i o n in or on which a pound, n e t , weir or o ther f i s h i n g a p p l i a n c e i s used , s e t , p laced or l o c a t e d and the a r e a , t r a c t or s t r e t c h of water in or from which f i s h may be taken by the s a i d pound, n e t , we i r or o ther f i s h i n g a p p l i a n c e used in c o n n e c t i o n t h e r e w i t h . e) Band C o u n c i l means the e l e c t e d government o f the Br idge R i v e r Indian Band. f ) "Band Manager" means the person so appo inted by the Band C o u n c i l . g) " F i s h e r y O f f i c e r " means a per son( s ) so appo in ted by the Band C o u n c i l and may i n c l u d e Band C o n s t a b l e s . 2. Thi s By-Law a p p l i e s over a l l Br idge R i v e r Indian Band waters i n c l u d i n g : a) Br idge R i v e r Reserve No. 1, b) Br idge R i v e r Reserve No. 2, c) or any o ther lands f a l l i n g i n t o the j u r i s d i c t i o n of the Br idge R i v e r Indian Band. 3. Band C o u n c i l may appo in t f i s h e r y o f f i c e r s whose act s and d u t i e s are as d e f i n e d by the by-law and amendments hereto and whose t i t l e s are as s p e c i f i e d in t h e i r a p p o i n t -ments. 4. Band members and non-band members s h a l l be permi t ted to engage i n f i s h i n g upon Br idge R i v e r Indian Band w a t e r s , as 107 s h a l l be permi t ted by the Br idge R iver Indian Band. 5. Where unused jams, s l i d e s , o b s t r u c t i o n s , d i v e r s i o n s or any th ing d e t r i m e n t a l to f i s h e x i s t , and the owner or o c c u p i e r t h e r e o f does not a f t e r n o t i c e given by the Band C o u n c i l to remove the same, or i f the owner is not r e s i -dent in Canada, or h i s exact p lace of r e s i d e n c e i s unknown to the Band C o u n c i l , the Band C o u n c i l may, wi thout being l i a b l e to damages or in any way to indemnify the s a i d owner or o c c u p i e r , cause such s l i d e , dam, o b s t r u c t i o n , d i v e r s i o n or t h i n g d e t r i m e n t a l to f i s h l i f e to be removed or d e s t r o y e d and i n cases where n o t i c e has been g iven to the owner or o c c u p i e r the expense of so removing or des-t r o y i n g the same. 6. No person s h a l l cause or knowingly permit i n t o , or put or knowingly permit to be put , l ime chemical substance or d rugs , poisonous m a t t e r , m i l l r u b b i s h , sawdust or any o t h e r d e l e t e r i o u s substance or t h i n g , whether the same i s o f a l i k e c h a r a c t e r to the substances named in t h i s sec-t i o n or n o t , i n any water f requented by f i s h , or t h a t f lows i n t o such w a t e r s , nor on i ce over e i t h e r such w a t e r s , or at a p lace from which i t i s l i k e l y to be c a r r i e d i n t o e i t h e r such water s . 7. No person engaging in l o g g i n g , l u m b e r i n g , land c l e a r -i n g , mining or o ther o p e r a t i o n s , s h a l l put or knowingly permit to be p u t , any s l a s h stumps or o ther d e b r i s i n t o any water f requented by f i s h or that f lows i n t o such w a t e r s , or on the i ce over e i t h e r such waters or at a p lace from which i t i s l i k e l y to be c a r r i e d i n t o e i t h e r such water . 103 8. The eggs or f ry of f i s h on the spawning grounds s h a l l not at any time be d e s t r o y e d . 9. The Band C o u n c i l may make r e g u l a t i o n s for c a r r y i n g out the purposes 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 wi thout 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 r e g u l a t i o n s : a) f o r the proper management and c o n t r o l of the f i s h e r -i e s . b) 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 of f i s h ; 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 , 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 , pos se s s ion and d i s p o s a l o f f i s h ; d) r e s p e c t i n g the use of f i s h i n g gear and equipment ; e) 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 waters f requented by f i s h ; f) r e s p e c t i n g the c o n s e r v a t i o n , p r o t e c t i o n and d e v e l -opment of spawning grounds ; g) p r e s c r i b i n g the powers and d u t i e s of persons engaged or employed in the a d m i n i s t r a t i o n or enforcement of t h i s by-law and p r o v i d i n g fo r the c a r r y i n g out o f those d u t i e s and powers. h) a u t h o r i z i n g a person engaged or employed to a d m i n i -s t e r and enforce any c l o s e d time or f i s h i n g r e g u l a t i o n that has been emplaced by the Band C o u n c i l . 10. Any f i s h e r y o f f i c e r or band c o n s t a b l e du ly appo inted hereunder may enforce the p r o v i s i o n s of t h i s by-law or any r e g u l a t i o n s made hereunder . 11. Every person who v i o l a t e s any p r o v i s i o n o f t h i s by-law i s g u i l t y o f an o f fence and i s p un i sh ab le upon summary 109 c o n v i c t i o n to a f i n e a p p r o p r i a t e to the damages or i n f r a c -t i o n s as determined by the c o u r t . 12. When not o therwise s p e c i f i e d every p r o p r i e t e r , agent , t e n a n t , o c c u p i e r or person a c t u a l l y in charge , e i t h e r as occupant or s e r v a n t , s h a l l be deemed to be j o i n t l y and s e v e r a l l y l i a b l e to any of the p r o v i s i o n s of t h i s by-law or any r e g u l a t i o n s hereo f . 13. Except i n s o f a r as in t h i s by-law i s o therwise s p e c i a l -l y p r o v i d e d a l l p e n a l t i e s and f o r f e i t u r e s i n c u r r e d under t h i s by-law or amendments hereto are r e c o v e r a b l e and en-f o r c e a b l e by summary proceedings taken under the pro-v i s i o n s of the C r i m i n a l code r e l a t i n g to summary c o n v i c -t i o n s . 14. Should any v i o l a t i o n cont inue of any by-law or any r e g u l a t i o n cont inue f o r more than one day then each day d u r i n g which v i o l a t i o n s cont inue c o n s t i t u t e s a separate o f fence and may be punished as such . 15. T h i s By-law may be c i t e d f o r a l l purposes as " F i s h i n g By-Law No. 1-1980. 16. 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 wi th t h i s by-law as they may deem neces sary or a d v i s a b l e fo r the purpose of 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 of t h i s by-law a c c o r d i n g to t h e i r t rue 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 and wi thout r e s t r i c t i n g the g e n e r a l i t y o f that power. 17. F i s h i n g By-Law No. 1-1980 having been c o n s i d e r e d and passed i s hereby s igned by the Indian Government o f the Br idge R iver Indian Band t h i s day of 1980. 110 APPENDIX "E" COWICHAN INDIAN BAND PREAMBLE This by-law may be cited at the "Cowichan Indian Band Fishing By-law, 1983, No. 2." This by-law is made pursuant to section 81 (c), (o), and (r) of the Indian Act. This by-law replaces the Cowichan Indian Fishing By-law, 1956, #1. DEFINITIONS 1. In this by-law, unless the context otherwise requires: a) "Band Council" means the duly elected Council of the Cowichan Indian Band; b) "Band Manager" means that person so appointed by Band Counci1: c) "Band member" means any member of the Cowichan IndianBand; d) "Cowichan Indian Band waters" means a l l waters situated upon or within the boundaries of reserves established for the use and benefit of the Cowichan Indian Band; e) "deleterious substance" means: i) any substance that, i f added to any water would al t e r or form part of a process of degradation or alteration of the quality of that water so that i t is rendered or is l i k e l y to be rendered deleterious to f i s h or f i s h habitat or to the use by man of f i s h that frequent that water, or M l i i ) any water that c o n t a i n s a substance in such q u a n t i t y or c o n c e n t r a t i o n , or that has been so t r e a t e d , processed or changed, by heat or o ther means, from a na tura l s t a te that i t would , i f added to any o ther water , degrade or a l t e r or form part o f a process of degrada t ion or a l t e r -a t i o n of the q u a l i t y of that water so that i t i s rendered or i s l i k e l y to be rendered d e l e t e r i o u s to f i s h or f i s h h a b i t a t or to the use by man or f i s h that f r equent tha t water ; f ) " F i s h " i n c l u d e s s h e l l f i s h , c ru s t acans and marine a n i m a l s ; g) " F i s h h a b i t a t " means spawning grounds and n u r s e r y , r e a r i n g , food supply and m i g r a t i o n areas on which f i s h depend d i r e c t l y or i n d i r e c t l y i n o r d e r to c a r r y out t h e i r l i f e p r o c e s s e s . h) " F i s h e r y " i n c l u d e s the a r e a , l o c a l i t y , p lace or s t a t i o n in or on which a pound, se ine ne t , weir or o ther f i s h i n g a p p l i c a n c e i s used , s e t , p laced or l o c a t e d , and the a r e a , t r a c t or s t r e t c h of water in or from which f i s h may be taken by the s a i d pound, s e i n e , n e t , w e i r , or o ther f i s h i n g a p p l i c a n c e used in c o n n e c t i o n t h e r e w i t h ; i ) " F i s h i n g " means f i s h i n g f o r , c a t c h i n g or a t t empt ing to ca t ch f i s h by any method; j ) "Reserve" means the Cowichan Indian Reserves , k) " R i v e r Management P e r s o n n e l " means a person a p p o i n t -ed as such by Band C o u n c i l pursuant to t h i s b y - l a w , whose d u t i e s and powers are as s p e c i f i e d by t h i s b y - l a w ; 112 1) " T r a d i t i o n a l f i s h i n g methods" means f i s h i n g by use of d ip n e t s , w e i r s , g a f f s , spear s , or hooks and r o d ; m) "waters f requented by f i s h " means Cowichan Indian Band w a t e r s ; JURISDICTION 2. Th i s by-law a p p l i e s to Cowichan Indian Band wate r s , and such areas of re serve land ad jacent to Cowichan Indian Band waters as maybe necessary fo r the proper enforcement of t h i s b y - l a w , whether such land be sur rendered land or o t h e r w i s e . RIVER MANAGEMENT PERSONNEL 3. a) Band C o u n c i l may a p p o i n t , by Band C o u n c i l Reso lu-t i o n , any person to act as a R i v e r Management P e r s o n n e l . b) Any R iver Management Personnel appo inted pursuant to these by-laws may 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 on s i t e that nets or o ther f i s h i n g apparatus be reduced in s i z e to occupy l e s s than 1/3 o f the d iameter o f any stream or r i v e r . c) Any R i v e r Management Personnel appo inted hereunder may enforce the p r o v i s i o n s of t h i s by-law or any regu-l a t i o n s made hereunder . FISHING 4. No p e r s o n , o ther than a Band member, may engage i n f i s h i n g i n Cowichan Indian Band waters unless tha t person possesses a permit pursuant to s e c t i o n 1_8 of t h i s by- law. 5. Unless o therwise ordered by a s p e c i a l order pursuant to s e c t i o n 1_6 of t h i s b y - l a w , Band members may f i s h i n Cowichan waters as fo l1ows : 113 a) Band Members who are e l d e r s , s i n g l e mothers , handicapped or d i s a b l e d may f i s h by use of set nets 3 days per week, such days to be s p e c i f i e d by order of the Band C o u n c i l pursuant to s e c t i o n 17 h e r e o f , p rov ided that there s h a l l be maximum of one such person per f a m i l y f i s h i n g by t h i s method d u r i n g these t i m e s ; b) Band members s p e c i f i e d in s e c t i o n 5 (a) hereof may appo int a Band Member to f i s h fo r him or her pur-suant to that s e c t i o n ; c) Except as p rov ided in S e c t i o n 5 (a) h e r e o f , Band Members may f i s h at a l l t imes by t r a d i t i o n a l f i s h i n g methods o n l y and, wi thout 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 , Band members may not f i s h by use o f : ( i ) set n e t s ; ( i i ) spear guns: ( i i i ) e x p l o s i v e s or p r o j e c t i l e s , unles s o therwise ordered pursuant to s e c t i o n 1_6 h e r e o f . 6. No Band member s h a l l f i s h fo r salmon f r y , parr or smolt at any t i m e , and no salmon or g r i l s e of l e s s weight than 3 pounds s h a l l be caught or k i l l e d , o therwise than by a n g l i n g wi th a hook and l i n e . 7. The eggs or f r y o f f i s h on the spawning grounds s h a l l not at any time be d e s t r o y e d . OBSTRUCTIONS OR DELETERIOUS SUBSTANCES 8. Where unused s l i d e s dams, o b s t r u c t i o n s or a n y t h i n g ' d e t r i m e n t a l to f i s h e x i s t , and the owner or o c c u p i e r t h e r e o f does not a f t e r n o t i c e g iven by the Band C o u n c i l to remove the same, or i f the owner is not r e s i d e n t in Canada, or h i s exact p lace of r e s i d e n c e is unknown to the Band 114, C o u n c i l , the Band Counc i l may cause the s l i d e , dam, o b s t r u c t i o n , or t h i n g d e t r i m e n t a l to f i s h l i f e to be re -moved or des t royed and in cases where n o t i c e has been given to the owner or o c c u p i e r Band C o u n c i l may recover from the s a i d owner or o c c u p i e r the expense of so removing or d e s t r o y i n g the same. 9 . Every person us ing s t a k e s , p o s t s , buoys or o ther m a t e r i a l s p laced fo r f i s h i n g purposes in any water s h a l l remoive the same w i t h i n f o r t y - e i g h t ( 4 8 ) hours a f t e r cea s ing to use them. 10. One t h i r d (1/3) o f the width of any r i v e r or s t ream, and not l e s s than t w o - t h i r d s (2/3) of the width of the main channel at low t i d e , in every t i d a l stream s h a l l be always l e f t open, and no k ind of net or o t h e r f i s h i n g a p p a r a t u s , l o g s , or any m a t e r i a l o f any k ind s h a l l be used or p l aced t h e r e . 11. No persons s h a l l cause or knowingly permit to pass i n t o , or put or knowingly permit to be p u t , l i m e , chem-i c a l substances or d rugs , poisonous m a t t e r , dead or decay ing f i s h , or remnants t h e r e a t , m i l l r u b b i s h or sawdust or any o ther d e l e t e r i o u s substance or t h i n g , whether the same i s o f a l i k e c h a r a c t e r to the substance named i n t h i s s e c t i o n or n o t , in any water f requented by f i s h or an any i ce over such water s . 12. No person engaging in l o g g i n g , l u m b e r i n g , land c l e a r -ing or o ther o p e r a t i o n s , s h a l l put or knowingly permit to be p u t , any s l a s h , stumps or o t h e r d e b r i s i n t o any water f requented by f i s h or that f lows i n t o such wate r , or on the i ce over e i t h e r such water , or at a p lace from which i t i s l i k e l y to be c a r r i e d i n t o e i t h e r such water . 115 PROHIB IT ION 13. No person shall destroy f i s h by any means other than fishing as authorized or specified by this by-law. 14. No person shall carry on any work or undertaking that results in the harmful a l t e r a t i o n , destruction or disrup-tion of fi.sh habitat. 15. No one shall f i s h for, buy, s e l l or have in his possession any f i s h , or portion of any f i s h , at a place where at that time fi s h i n g for such f i s h is contrary to this by-law. SPECIAL ORDERS 16. Band Council may by Band Council Resolution specify that Band members: a) Shall not f i s h as allowed under these by-laws, at any time or place specified in the special order until further order of Band Council; b) May f i s h otherwise than as allowed under these by-laws by reason of special circumstances, at any time or place specified in the the special order. 17. Band Council may make other special orders for carry-ing out the purposes and provisions of this by-law as fol1ows: a) for the proper management and control of f i s h e r i e s ; b) respecting the catching, loading, landing, i handling, trasporting, possession and disposal of f i s h ; c) respecting the operations of fishing vessels; d) respecting the use of fi s h i n g gear and equipment; e) . respecting the obstruction and pollution of any 116 waters f requented by f i s h ; f) p r e s c r i b i n g the powers and d u t i e s of persons engaged or employed in the a d m i n i s t r a t i o n or e n f o r c e -ment of t h i s by-law and p r o v i d i n g for the c a r r y i n g out of those d u t i e s and powers; 18. Band Counc i l may i s sue a permit to any person other than a Band member to f i s h i n Cowichan Band waters at the time and p lace and a c c o r d i n g to the method s p e c i f i e d in the p e r m i t . 19. With regard to S e c t i o n s 16, 17, and 18 of these by-laws , Band C o u n c i l s h a l l : a) g ive n o t i c e to a l l persons a f f e c t e d by the s p e c i a l o rder s by p o s t i n g a copy o f such order s at consp icuous p l ace s on the Reserve at l e a s t 24 hours p r i o r to the s p e c i a l order coming i n t o e f f e c t ; b) a l l s p e c i a l o rder s s h a l l be fo r the purpose of f u r t h e r 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 of f i s h or spawning grounds . INTERPRETATION 20. In the event that any ambigui ty or u n c e r t a i n t y a r i s e s in the i n t e r p r e t a t i o n of t h i s b y - l a w , Band C o u n c i l may, i f reques ted to do so by a Band Member, p rov ide i t s i n t e r -p r e t a t i o n o f the by-law by Band C o u n c i l R e s o l u t i o n . VIOLATION 21. Every person who v i o l a t e s or prepares to v i o l a t e any p r o v i s i o n of t h i s by-law or any order made pursuant to S e c t i o n s 16 and 17 h e r e o f , i s g u i l t y of an o f fense and i s .117 puni shab le on summary c o n v i c t i o n to a f i n e of not more than $100.00 or to imprisonment of not more than 30 days . 22. Should any v i o l a t i o n of t h i s by-law or the order s made pursuant to Sec t ions 16 and 17 h e r e o f , cont inue fo r more than one day, then each day which such v i o l a t i o n cont inues c o n s t i t u t e s a separate o f fense and may be punished as such . Cons idered and passed at a duly convened meeting of the Cowichan Indian Band C o u n c i l the day of , 1982. THE COUNCIL OF THE COWICHAN BAND, NANAIM0 AGENCY, PROVINCE OF BRITISH COLUMBIA, DUNCAN, 18th JANUARY, 1983, DO HEREBY RESOLVE: AT A DULY CONVENED MEETING OF THE COWICHAN BAND COUNCIL HELD ON JANUARY 18, 1983, THE COWICHAN BAND COUNCIL RESOLVED TO ADOPT THE ATTACHED BY-LAW AS COWICHAN INDIAN BAND FISHING BY-LAW #2 - 1983. 118 APPENDIX " F " NITINAHT BAND BY-LAW NANAIMO AGENCY MALACHAN, BRITISH COLUMBIA MARCH 11, 1982 Th i s By-law i s passed pursuant to S e c t i o n 81 of the Indian A c t , at the r e g u l a r bnad meeting on March 10, 1982. POSITION ESTABLISHED 1. The p o s i t i o n of Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r i s hereby e s t a b l i s h e d . T h i s s h a l l be a paid p o s i t i o n . The s a l a r y f o r t h i s p o s i t i o n s h a l l be e s t a b l i s h e d by the Band C o u n c i l , and s h a l l be paid from Band Funds. The p o s i t i o n i s to be f i l l e d by r e s o l u t i o n o f the Band C o u n c i l and the person so appo inted s h a l l serve u n t i l removed from O f f i c e by the Band C o u n c i l . In case of vacancy i n t h i s p o s i t i o n , the Band Manager s h a l l perform the d u t i e s and f u n c t i o n s a s s i gned to the Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r . POWERS AND DUTIES OF BAND FISHERIES CONSERVATION OFFICER 2. a) The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r s h a l l determine a c c o r d i n g to the best i n f o r m a t i o n a v a i l a b l e to him the c a p a c i t y of the waters on each of the Band's re serve to s u s t a i n p r o d u c t i o n of f i s h . b) The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r may c l o s e any area f o r f i s h i n g f o r any p e r i o d of time he c o n s i d e r s a p p r o p r i a t e in the i n t e r e s t s of c o n s e r v a t i o n . c) The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r s h a l l pro-h i b i t any gear type he c o n s i d e r s i n a p p r o p r i a t e fo r 119 any l o c a t i o n . d) The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r s h a l l e n f o r c e t h i s By- law.-e) The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r s h a l l c o l l e c t s t a t i s t i c s on a l l f i s h caught or so ld under t h i s By- law. PERMIT TO FISH 3. The Band C o u n c i l may i s sue a permit to a person not a member o f the N i t i n a h t Band e n t i t l i n g that person to f i s h on r e s e r v e . OPENING AND CLOSURES 4. The Band C o u n c i l s h a l l de s i gna te openings and c l o s u r e s f o r the on Reserve F i s h e r y . ASSISTANT BAND FISHERIES CONSERVATION OFFICERS 5. The Band C o u n c i l may appo int one or more F i s h e r i e s C o n s e r v a t i o n A s s i s t a n t s . These s h a l l be pa id p o s i t i o n s . The s a l a r y f o r these p o s i t i o n s s h a l l be e s t a b l i s h e d by the Band C o u n c i l , and s h a l l be pa id from Band Funds. These a s s i s t a n t s s h a l l : a) under the d i r e c t i o n of the F i s h e r i e s C o n s e r v a t i o n O f f i c e r c a r r y out work to m o n i t o r , a d m i n i s t e r , and enhance the f i s h e r i e s , and b) in the absence of the Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r have a l l powers under S e c t i o n 2. 120 NOTICE 6. No opening or c l o s u r e under S e c t i o n 4 and no c l o s u r e under S e c t i o n 2(b) or p r o h i b i t i o n under S e c t i o n 2(e) s h a l l take e f f e c t u n t i l n o t i c e of the c l o s u r e or p r o h i b i t i o n is posted near the p lace at which the c l o s u r e or p r o h i b i t i o n i s to take e f f e c t . GENERAL CLOSURE 7. No persons s h a l l f i s h on re se rve except as permi t ted by t h i s By- law. GENERAL PROHIBITION 8. No person s h a l l use any gear to ca tch f i s h on re se rve except a type approved by the Band F i s h e r i e s Conserva t ion O f f i c e r or by permi s s ion o f the Band C o u n c i l . NON MEMBERS 9. I t i s an o f fence a g a i n s t t h i s By-law fo r any person who i s not a member o f the N i t i n a h t Band to f i s h on re -serve wi thout a permit i s sued pursuant to S e c t i o n 3. OFFENSE 10. It i s an o f fence a g a i n s t t h i s By-law to f i s h in c o n t r a v e n t i o n of a c l o s u r e or a p r o h i b i t i o n under t h i s By-1aw. MARKING OF GEAR 11. A l l Gear fo r f i s h i n g s h a l l be a t tended at a l l times w h i l e in use , except that gear may be l e f t unattended when in use i f c l e a r l y 1 a b e l l e d with owners i n a m e . F a i l u r e to l a b e l gear a c c o r d i n g to t h i s s e c t i o n i s an o f fence .12.1 under t h i s By-1aw. PENALTIES 12. Maximum p e n a l t y fo r commission of an o f fence under t h i s By-1aw s h a l l be : a) A f i n e o f $10.00 or impr i s ionment fo r 3 days for the f i r s t o f f ence in any c a l e n d a r y e a r ; and b) A f i n e of $100.00 or imprisonment f o r 30 days or both f o r the second o f fence in any c a l e n d a r y e a r . ADDITIONAL PENALTIES 13. In a d d i t i o n t o , or in a l t e r n a t i v e to the p e n a l t i e s set in paragraph 12 above, the Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r may p r o h i b i t any person who has committed any o f fence under these By-laws from f i s h i n g on re se rve fo r any p o r t i o n of the c a l e n d a r year f o l l o w i n g the year in which the o f fence was committed. Such p r o h i b i t i o n becomes e f f e c t i v e as soon as i t i s communicated to the i n d i v i d u a l who i s s u b j e c t to the p r o h i b i t i o n . Any v i o l a t i o n o f the p r o h i b i t i o n i s a l so an o f fence under t h i s By- law. COOPERATION WITH FEDERAL FISHERIES 14. The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r s h a l l p r o v i d e any i n f o r m a t i o n reques ted by any f i s h e r i e s o f f i c e r a p p o i n t -ed persuant to the F i s h e r i e s Act on demand. A f i s h e r i e s o f f i c e r may commence a p r o s e c u t i o n f o r any o f fence under t h i s By- law, and may en te r any Reserve at any t ime . 122. JOINT MANAGEMENT 15. The Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r , the F i s h e r i e s C o n s e r v a t i o n A s s i s t a n t s , and such o ther persons as the Band C o n c i l may a p p o i n t , t oge ther with as many persons as the M i n i s t e r of F i s h e r i e s & Oceans s h a l l appo in t (not to exceed the number appo inted by the Band C o u n c i l ) , c o n s t i t u t e a j o i n t management committee , wi th power to make recommendations to the Band C o u n c i l con-c e r n i n g the f i s h e r y . SALE OF FISH 16. Any f i s h caught under t h i s By-law may be s o l d to any person p rov ided tha t person s e l l i n g the f i s h r e p o r t s the number o f f i s h s o l d to Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r . BAND COUNCIL MAY OVERRULE 17. The Band C o u n s i l may o v e r r u l e any d e c i s i o n o f a Band F i s h e r i e s C o n s e r v a t i o n O f f i c e r made pursuant to t h i s By-1aw. 

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