ISSN 1062-7421
Vol. 12 No. 5 (May 2002) pp. 236-240.
FISH, LAW, AND COLONIALISM: THE LEGAL CAPTURE OF SALMON IN BRITISH COLUMBIA by Douglas C. Harris. Toronto:
University of Toronto Press, 2001. 306 pp. Cloth $65.00. ISBN 0-8020-3598-1. Paper $27.95. ISBN 0-8020-8453-2.
Reviewed by Geoffrey Wandesforde-Smith, Departments of Political Science and Environmental Science and Policy,
University of California, Davis.
The quickening interest in wildlife law makes the timing of this book almost perfect. The first major law school
text, running to well over fifteen hundred pages, on American and international wildlife law was published at the
beginning of this year (Goble and Freyfogle 2002). A second major text on the law of biodiversity and ecosystem
management is set to appear mid-year (Nagle and Ruhl 2002). Also, most immediately resonant with the title under
review, a thorough, comprehensive, and authoritative legal and policy history of the decline of salmon stocks in
the Pacific Northwest has just appeared in print (Blumm 2002). The history of the role law has played in allocating
fish and wildlife among competing groups in society has never before received such intense scholarly attention.
In the case of Douglas Harris, we are presented with a fascinating, early piece of the Canadian story. It is on
one level narrowly focused on the late nineteenth and early twentieth century history of fisheries on two river
systems in British Columbia. At the same time the book is boldly and broadly framed in the context of some very
basic questions about law and society, and Harris deftly weaves together several important intellectual interests
in the four chapters of his book.
At the most immediate and concrete level, and with a fine eye for the rich empirical detail of legal history, which
is his stock in trade, Harris is interested in reconstructing what happened to the fisheries in British Columbia
at Babine Lake and along the Cowichan River. The former feeds the Babine River, a tributary of the Skeena, which
reaches the Pacific just south of Prince Rupert and close to where Canada and British Columbia meet the finger
of the United States and southeast Alaska that protrudes south from Juneau. The Cowichan is also fed by a lake
of the same name but lies much further south in the province, almost at the end of Vancouver Island, north of Victoria
but below the modern metropolis of Vancouver and facing it across the Georgia Strait.
These two locations, considered in chapters 2 and 3 of the book, are attractive primarily because of the variance
they introduce into the story of fish, law, and colonialism. British Columbia joined the Canadian confederation
in 1871, at which point control of fisheries became a Dominion (federal) government responsibility. At Babine
Lake there was a short, intense conflict between the inland, upstream Native population and the coastal canneries
for control of a large sockeye salmon run, and Harris follows this story in the courts and elsewhere between 1904
and 1907. On the Cowichan River, where value
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attached to runs of three species of salmon and to steelhead trout, Harris tells a much longer story. It begins
in 1877, when Canadian fisheries law banned the building of weirs on the Cowichan to harvest fish, and ends in
1937, when the resistance of the Cowichan people to this regulation of weirs, their traditional harvesting method,
was effectively ended.
In the one case Harris can and does successfully argue that the capture of a viable and well regulated Native fishery
was bluntly accomplished when the owners of the canneries at the mouth of the Skeena co-opted the power of the
Canadian state and, through the local fisheries inspectors the canneries appointed, used Canadian law and courts
to replace the Native legal culture that had originally regulated the fishery. The process, though relatively
swift, was not without its difficulties, some occasioned by differences in information and strategy between settlers
in the province and officials in Ottawa and some by brief Native protest. Some level of disagreement and discord
over the exact terms and meaning of the Barricade Treaty of 1906 has continued ever since, but the outcome of the
conflict over Native weirs (or barricades) at Babine Lake quieted by that agreement is not hard to grasp: "Justified
on the basis of establishing and preserving a particular economic order, and legitimized with law, the removal
of the Babine weirs had secured for the Skeena River canneries a supply of fish and a flexible, although
increasingly neglected and impoverished, labour force" (p. 126).
In the other case, there was prolonged Native non-compliance with the law and resistance to the settlers, as well
as to the rich, urban fly fishermen from Victoria and the mainland, who also had designs on the Cowichan. This
was in part because Native people proved adept at using Anglo-Canadian legal tools to defend their interests in
local courts. It was also and more importantly because settler interests along the river were diverse and included
at least some who thought the Cowichan were entitled to their weirs. In one of the most insightful passages in
the book, Harris makes it clear how much the Cowichan benefited from being part of a local
community:
"The Cowichan were able to make such effective use of Canadian law because they were increasingly surrounded
by a settler society that was, in parts, fearful of Cowichan unrest and sympathetic to Cowichan claims. Once securely
established, this English settler society viewed industrialization as a greater threat to its way of life than
the Cowichan weir fishery. Settlers blamed logging for the destruction of fish stocks and Fisheries [the Ministry
in Ottawa] for provoking unrest among their Cowichan neighbours by its repeated attempts to destroy weirs. These
settlers, after all, were the ones most inconvenienced by the no trespassing signs that the Cowichan erected on
their reserve boundaries to prevent white access to the river. This local public opinion was reflected more in
the legal arena and the decisions of local magistrates who lived as part of the settler society than in the political
arena, which with its base in Ottawa was far removed from local influences" (p. 181).
At the heart, then, of the contribution Harris is able to make with his two detailed cases is the substantiation
of several points he sketches in chapter 1, in an outline of the evolution of federal fisheries law. One is that,
before settlers arrived, there was a
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Native legal culture for the allocation of fisheries in British Columbia. Far from being lawless commons, the Native
fisheries were closely and locally well regulated. Another is that to varying degrees along the Pacific coast,
both before and after settlement began to be sustained. This Native law of fisheries was integrated with the legal
cultures brought to Canada by missionaries, fur traders, and the settlers themselves. Fish were supplied for many
years, for example, to the Hudson's Bay Company for both food and some export in salted form without wresting control
of the fisheries from Natives.
However, whereas fish captured off the Atlantic coast of Canada could reach European markets profitably without
canning technology, Pacific salmon could not. Canneries first became permanently established along the Fraser
River in 1871. Investment in an industrial commercial fishery did not, therefore, begin in earnest in British
Columbia until the 1870s and 1880s, at which point Native people began to lose control of their fisheries.
This leads Harris to his next point, which is that even though the legal capture of the salmon fishery was ultimately
accomplished by Canadian statute and regulation, it began from the ever-flexible, ever-adaptable foundation of
the English common law. In this ancient tradition there was no property right in fish until they were captured
and the role of law and the courts was to determine who had the right of access to a PISCARY PROFIT A PRENDRE so
that the legality of capture was clear.
In British Columbia, the Natives wanted to argue that their right of access derived from long use of fisheries,
predating the assertion of British sovereignty; that it was, in effect, a prescriptive right, as well as one that
had more than a modicum of recognition for its legitimacy and exclusivity in Indian treaty law. However, governments
in Canada eventually settled on the view that the recognition of exclusive Native fisheries would unacceptably
infringe the public right to fish. Colonists and settlers and cannery operators expected this right to be recognized
as their common law heritage. Further, they expected government to use it as the basis for
administering and adjusting all claims to fisheries access, including, with no special status or protected prescription,
those of Native peoples. In this way the legal groundwork was laid for progressively confining Native fishing
to a right to fish for food. Eventually even that right was circumscribed in ways that rendered it worthless as
the basis for making a living, at which point some but not all Natives became cannery workers.
What Harris, in contrast to his predecessors, effectively demonstrates through his detailed cases is that the use
made of the common law and the public right to fish, while it was widespread, yielded different outcomes in different
places as the Canadian government adapted its statutes and regulatory schemes to local conditions. The story,
in other words, of how the salmon fisheries of British Columbia were captured by Canadians is truly a complex and
multifaceted one and not, therefore, a simple story everywhere of unjust outcomes being cruelly imposed by military
force, unequal power relations, aggression, subjugation, and unmitigated contempt.
Here, Harris makes it clear that his interest in the legal capture of salmon in British Columbia goes far beyond
an unraveling of what happened in two provincial cases. His larger intellectual project extends to re-imagining
the entire
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literature on empire, colonialism, and subaltern studies recently thrust into the public imagination by the spirited
exchange between Edward Said (1994) and David Carradine (2001).
This is heady stuff. In a masterful and final fourth chapter, however, Harris successfully places his empirical
research in the much broader context of law and colonialism studies in Africa, Asia, and North America.
Based on the experience colonists had in eastern North America, some historians have been quick-too quick, Harris
says-to assume that the net outcome of the interplay between law and colonialism has always been the easy subjugation
of Native peoples and the marginalization of their legal traditions. However, this is not what happened in the
administrative colonies of Africa and Asia. There, researchers have long been prepared to accept that the intersection
of dual European and customary legal forms, although it certainly channeled resources to the colonial power, also
created a legal space that affected social relations within indigenous society and took the harshest edges off
the exercise of colonial power.
The relevance for North America of the colonial experience in Africa and Asia has been clouded by the obvious differences
between the administrative colonies in Africa and Asia and the settler colonies of Canada, Australia, and New Zealand.
In the settler societies, Harris writes, the colonists would soon outnumber the Natives. But more importantly
the "settler societies assumed that the laws of the home country applied to them and, by extension, to the
indigenous people who assimilated and then to all the original inhabitants. [The settlers'] presence and insistence
on the common law tradition inserted English law more deeply into relations between colonizer and colonized than
in administrative colonies, where dual legal systems were more common" (p. 199).
The net result in British Columbia, at least, was the creation in Anglo-Canadian law of a contested space in which
Native legal forms were subdued and altered but never extinguished. This, Harris concludes, is an important key
to understanding not just the role legal innovation between indigenous and settler societies played, once upon
a time, in the capture of salmon but also the legitimacy, in the present, of Native claims, now constitutionally
protected, to Canada's natural resources. This is an exciting conclusion to a rewarding book and one that I heartily
recommend.
REFERENCES:
Blumm, Michael C. 2002. SACRIFICING THE SALMON: A LEGAL AND POLICY HISTORY OF THE DECLINE OF THE COLUMBIA RIVER
SALMON. Beverly Hills, FL: BookWorld Publications.
Carradine, David. 2001. ORNAMENTALISM: HOW THE BRITISH SAW THEIR EMPIRE. New York: Oxford University Press.
Goble, Dale D. and Eric T. Freyfogle. 2002. WILDLIFE LAW: CASES AND MATERIALS. New York: Foundation Press.
Nagle, John and J. B. Ruhl. 2002 (forthcoming). THE LAW OF BIODIVERSITY AND ECOSYSTEM MANAGEMENT. New York: Foundation
Press.
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Said, Edward W. 1994. ORIENTALISM. New York: Vintage Books.
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Copyright 2002 by the author, Geoffrey Wandesforde-Smith.