Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849- 1925
Review By Frank Tough
November 4, 2013
BC Studies no. 161 Spring 2009 | p. 138-40
Landing Native Fisheries is an important contribution to the history of fisheries and a good companion to Harris’ Fish, Law, and Colonialism (2001). This is a serious study that demonstrates conclusively that dispossession of Aboriginal lands in British Columbia left only tiny reserves and that this allocation was premised on the significance of fisheries to the Aboriginal population. Empirically, Harris proves a locational correlation between particular plots of reserve land and fisheries, and, in this respect, he adds to Cole Harris’ findings in Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (2002). Douglas Harris provides a detailed description of “an Indian reserve geography premised on access to fish and a legal regime that had detached the fisheries from the reserves” (165). Federal fisheries officials were alarmed when the Department of Indian Affairs (DIA) began surveying reserves and allocating fisheries. Harris explains how the intent to set aside exclusive fishing reserves for Indian bands was thwarted by an unsound legal argument claiming that the Crown lacked the prerogative to ignore the “public right to fish,” which he delineates by indicating its Canadian and English common law origins. Good information is provided on the rights associated with land ownership and adjacent fisheries. Aboriginal views concerning fisheries and reserves are well represented. Whatever the legal obscurity concerning the conflict between exclusive fishing reserves and the public right to have access to fisheries, Harris makes the point that Aboriginal fishing rights were not created by colonial authorities. Ultimately, through minuscule reserves stripped of adjacent fisheries, BC Native peoples were thoroughly dispossessed. Aspects of this process are captured by wonderful maps.
The basic findings on the “construction” of an Aboriginal food fishery, its subsequent regulatory marginalization, and the ascendancy of the industrial commercial fishery with the concomitant decline of Aboriginal benefits from this resource activity are not original. Essentially, Harris confirms and refines the pioneering work of Dianne Newell in Tangled Webs of History: Indians and the Law in Canada’s Pacific Coast Fisheries (1993). Landing Native Fisheries is a well researched but not an exhaustively researched book. While court cases and some DIA records are used to reconstruct the legal thinking with respect to fishing rights, Justice Department (RG23) records were not consulted, so the weaving of history with law is somewhat incomplete.
While Harris realizes that BC fisheries policies were influenced by a Canadian legal history that predates union in 1871, he disregards relevant sources concerning Prairie fisheries. British Columbia is not the only region in which reserve/community locations and fisheries are closely connected. Similarly, fisheries official S. Wilmot’s 1891 investigation was preceded by his Manitoba commercial fisheries report, which advocated similar policies. The 1894, Consolidated Fisheries Regulations for the Prairies applied regulations to Natives “provided always, that the Minister of Marine and Fisheries may from time to time set apart for the exclusive use of the Indians, such waters as he may deem necessary.”1 These regulations permitted the creation of Aboriginal fishing reserves and, perhaps, some ambiguity in the legal thinking of Department of Fisheries and Oceans (DFO) officials. Similarly, departmental discord between the DIA and the DFO was also very pronounced on the Prairies, notwithstanding the written language of treaties. The historical problem of legal recognition of Aboriginal fisheries would have benefited from a broader geographical awareness.
A strength of this book is that it tackles a problem from diverse perspectives (law/history/geography); however, as a reader, I was not left with a coherent explanation. While the geography of BC Native reserves is well covered, a better effort at reconciling history and law could have been made. Sound, but extremely muted, disagreements are indicated concerning court pronouncements about “history.” Harris truthfully notes: “Recent judicial statements that Natives suffered no discrimination in their attempts to participate in the fishery are based on a profound misunderstanding of the fishery and its regulation in the late nineteenth and early twentieth centuries” (164). But did the Court ignore historical evidence or did it make such inferences because of plaintiffs’ failure to provide alternate, evidence-based, historical interpretations? Harris concludes that the law turned out to be “a malleable set of ideas” that fortified “the position of the colonial state” and was not “a unitary and coherent body of independent principles” (191). This cogent finding, along with a historical approach to resource disputes, needs to be taken more seriously by those who litigate Aboriginal rights.
However, Harris sees the legal process as entirely driven by the state and for state purposes, a natural inclination of the legally trained, and thus “settlement” is the sole purpose of the colonial state. Jabs are taken at “private property,” “colonial theatre,” “state power,” “settlers,” and so on – all of which are the makings of a growing orthodoxy among Canadian historians based on characterization by narrative. Harris then seems somewhat surprised when he discovers that, “in this corner of empire, the body of law governing relations between Natives and new-comers established over several centuries of interaction in North America and overseas, was all but ignored” (190). While the knowledge of why such a discrepancy existed will not be found in legal studies, Landing Native Fisheries is a significant accomplishment.