Harris on Comparative Judicial Review of Treaty Rights

Douglas C. Harris, University of British Columbia Faculty of Law, has posted an essay, The Boldt Decision in Canada: Aboriginal Treaty Rights to Fish on the Pacific. It appears in THE POWER OF PROMISES: RETHINKING INDIAN TREATIES IN THE PACIFIC NORTHWEST, Alexandra Harmon, ed. (University of Washington Press, 2008). Here's the abstract:

The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, in 1854 and 1855.

The Douglas and Stevens treaties, as the agreements came to be know, included monetary payment and guarantees of reserved land, hunting rights, and fishing rights. The fisheries provisions were short. The Douglas treaties reserved to Aboriginal peoples the right to “their fisheries as formerly”; the Stevens treaties provided that “the right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.”

This essay focuses on the relationship between U.S. and Canadian judicial interpretations of these treaty rights to fish. In particular, it explores the impact of two U.S. decisions – United States v. Washington ("the Boldt decision") and Washington v. Washington State Commercial Passenger Fishing Vessel Association – on the general development of Aboriginal and treaty rights in Canada. Although not widely cited in Canadian courts, the decisions have had a profound influence on Canadian Aboriginal law. In addition, this essay considers the historical evidence pertaining to the fishing rights in the Douglas treaties and suggests various interpretations. In doing so, it turns back to the U.S. decisions to consider whether they provide useful guidance for the interpretation of the fishing rights provision in the Douglas treaties.