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The public right to fish and the triumph of colonial dispossession in Ireland and Canada.

I. INTRODUCTION

The public right to fish has a strange jurisprudential history. Decades can pass without the right being mentioned, only for a cluster of cases with similar facts to appear in a particular jurisdiction. Such patterns of case law might not be surprising given that the public right to fish is somewhat obscure and is hardly as important a right as, for example, the free use and enjoyment of property. Perhaps we should be more surprised that there has been any litigation at all about public fishing rights. Then again, such clusters of cases might themselves be indicative of something else, of a broader claim centred on fishing rights.

In this article I focus on the jurisprudence on the public right to fish in two different jurisdictions at two different points in time: in turn-of-the-twentieth-century Ireland and turn-of-the-twenty-first-century Canada. (1) In both these jurisdictions at those particular times, there have been a spate of cases that discuss the limits and application of the public's fishing right. Although superficially these two examples have little in common, their jurisprudence on fishing rights offers a window into colonial dispossession. My reasons for focusing on these two jurisdictions are to do with their complimentary, yet contrasting colonial experiences. Both countries, with the exception of Quebec, received the English common law in its entirety, including the common law's public right to fish. Both, at the time the English or British claimed sovereignty over them, had a pre-existing population with its own laws--albeit not always identical across the territory as a whole (2)--about land ownership and access to the fisheries which differed from that of England. (3) Nonetheless, the native Irish were not overrun by settlers in the same way that the Indigenous population of Canada was. In other words, the public of the public right to fish was very different in the two countries.

My reason for focusing on the particular point in time in each country is due to the context in which the cases about fishing rights occurred. As the 19th century gave way to the 20th, nationalist sentiment was on the rise in Ireland along with increasing frustration at British rule. Questions of property, particularly land-holding, were a key flashpoint at this moment of Irish history. According to the common law, fishing rights are a species of property and one that flows with the soil of the river or other body of water. Even the public right to fish is said to flow from the fact of Crown ownership of particular waters. (4) In fact, several fishing rights cases from Ireland at this time hint at the broader Irish dissatisfaction with the British administration.

The activism that formed the backdrop to the late 20th-century Canadian jurisprudence on the public right to fish was that of Indigenous Peoples in Canada. These Peoples were and still are fighting back against several centuries of colonial oppression and dispossession and, by the late 20th century, were beginning to see increased judicial and political recognition of their rights. In parts of Canada, but particularly along the Pacific Coast of British Columbia and along the many salmon-rich rivers of that province, access to the fisheries was and remains a key source of settler-Indigenous conflict. (5) Not surprisingly, questions of property and rights to land and resources were and still are a key Indigenous legal issue.

One striking feature of the cases examined in this article is the tension between the facts as presented and the courts' struggle or refusal to fit the law to the facts. I argue that this difficulty is a result of the inherently colonial nature of the litigation and of the need to ensure the integrity of the colonial legal system writ large. In Ireland the challenge posed by claims of a public right to fish was squarely towards that sacred cow of the common law world: private property. In Canada, the challenge was (and still is) broader and often implicitly indicted the Crown's claim to sovereignty and title over unceded territory. Yet in both countries there was law (in the form of a statute in Ireland and a constitutional guarantee in Canada) that should have allowed the courts to better fit the law to the facts presented to them. That they did not, or would not, speaks to the colonial contexts in which the cases were decided. But it also shows how the law can be a sword and a shield to defend, maintain, and justify colonial dispossession while also having the potential to be used to withstand and attack colonial assertions of power. In turn, a tacit argument in both my examples was which law should govern access to the fisheries and whether the common law could or would recognize pre-colonial laws, however indirectly. While there is an argument that some of the Crown's treaties with Indigenous Peoples did recognize pre-existing legal orders, I will not be dealing with the broader issue of treaties in this article. (6) Ireland did not have comparable treaties but nor did vast swathes of what is now British Columbia. What is more important to note is that treaties indicate the potential for the common law to recognize pre-existing legal orders, even if the practice was much different.

I begin with a brief discussion of the public right to fish. Due to constraints of space, I cannot fully trace its origins and history. Instead, I raise certain questions about its accepted history; questions which become more important for when the right is exported to Canada. In particular, I focus on the claim that the right emerged with the Magna Carta. The third part examines the late-19th and early 20th-century Irish cases to show how the common law courts refused to recognize a legislated deviation from the common law. The fourth part examines the interaction between Indigenous fishing rights and the public right to fish in Canada. The fifth part unpacks what the jurisprudential history of the public right to fish means in the context of dispossession and claimed rights.

II. THE PUBLIC RIGHT TO FISH

Under the English common law, the public has a right to fish in all tidal waters. This right is said to emerge out of the Crowns ownership of the beds of tidal waters and the fact that these beds are held by the Crown for the benefit of the public. Ever since the time of the Magna Carta, or so the standard history goes, the Crown has been prohibited from granting out either the beds or their related tidal fisheries to a private person. (7) In short, the public right to fish is an ancient and longstanding common law right. Or at least it is provided the history is not examined too closely.

Due to the limits of space I cannot set out the complete origins of the public right to fish. However that right did not emerge with the Magna Carta. The Magna Carta is a deeply symbolic document which can be and has been twisted to suit a range of purposes, often with little basis on the text or the context in which the document was written. (8) Any claim that the document recognizes a public right to fish in tidal waters reveals an ignorance of the socio-political context in which the Magna Carta was signed. It was the barons who forced the document upon King John, not the public. It is doubtful that there was any real public' to speak of at the time, given that the main differentiation in personal status was whether one was an unfree villein bound to the land, or a freeman. (9)

Even if the Magna Carta did seek to win protections for the broader English population, the text of the document does not support a public right to fish. Although a handful of scholars have already pointed out that the Magna Carta does not protect public fishing rights, (10) many courts still cite to it in discussions of the public right to fish. (11) When courts and scholars mention the Magna Carta and public fishing the two chapters usually cited are chapter 16: "No river banks shall be guarded (placed in defence) from henceforth, but such as were in defence in the time of King Henry;" (12) and chapter 23: "All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast." (13)

The evil that chapter 16 aimed at was the king's sport, his right to hunt. The English king has long had special rights qua king and his right of sport was one of them. (14) The king's barons had a duty to support the king's sport and in the original version of the Magna Carta, chapter 16 appears alongside related concerns such as building bridges to allow the king to pass. (15) What chapter 16 does is it limits the king's sport to those rivers, which had been used during the reign of Henry II. Such limits would protect the private fishing rights in these rivers, not the public's. The confusion over chapter 16 appears to stem from Sir Edward Coke who thought it meant no grant of inland fisheries. (16) It is clear that such a reading is contrary to the text of the chapter.

Meanwhile, chapter 23 is properly about navigation. Prior to 1215 there had been a number of statutes which sought to remove fish weirs from key rivers. (17) Such removals were not aimed at preserving or protecting the fish but protecting ships' and boats' ability to pass up and down rivers. That being said, the protection of navigation had the incidental effect of also protecting fish, which soon led to legal confusion. In 1472, An Act for Wears and Fish garth es observed that the Magna Carta protected the passage of ships and the "Safeguard of all the Fry of Fish spawned within the same." (18) Such comments show the idea that the Magna Carta protected fish is longstanding but such protections were not the driving force behind chapter 23, particularly not when the chapter left all coastal weirs in place. It should also be noted that the Wears and Fishgarthes Act does not mention the public right to fish.

In sum, then, the public right to fish emerged elsewhere. It would appear that the right is bound up with the idea that the Crown owns the foreshore. This too is a relatively modern doctrine and its first appearance seems to be in Thomas Digges' Proofs of the Queen's Interest in Lands Left by the Sea and Salt Shores thereof. (19) The problem with that doctrine is: if the Crown did own the foreshore, then all of the weirs which the Magna Carta left in place would have been an invasion of the Crown's right. Richard Barnes argues that the public right to fish's history is bound up with the colonial goals of the nascent British state. (20) Assertions of Crown authority over the coast and coastal fisheries encouraged the development of a navy with fishermen providing a source of ready-made sailors. (21) In turn, a strong navy led to a strong empire. Of course, it should also be noted that marine fish, particularly preserved marine fish such as cod and herring, were an important trade good from the turn of the second millennium CE. (22)

The claim of Crown ownership of the foreshore does not start to appear with any regularity until the reign of Charles II and, when it does, the doctrine is unsettled. The 1662 case of Bulstrode v Hall held that where a river is tidal, it belongs to the king. (23) Bulstrode cited to Sir Henry Constable's Case from 1601, (24) and to Rolles Abridgement in support of the kings right. The relevant page of Rolles Abridgement also cites to Constable's Case and reads "Le soile sur que le mere flowe & reflowe, scilicet inter high-water marke & le low-water marke poet etre parcel d'manor d'un subject." (25) Constable's Case suggests that the foreshore may be privately owned, and that prescription could be evidence of such ownership--a direct contraction of Digges' claim. The relevant part of Constables Case is itself a reference to an earlier case: the Anonymous case from 1382 stating that the sea is part of the kings ligeance. (26) Here the king's ligeance did not mean property but jurisdiction. (27) It seems that following the inter-regnum, the common law courts were confused by the dual meaning of ligeance and took it to mean ownership. Despite such doubtful authority, in 1666, Kirby v Gibs echoed the rule about Crown ownership with respect to the banks of a royal river. (28) Almost a decade later, Attorney General v Farmer held that "the soil of the sea is in the King as part of his inheritance, and not as a thing of prerogative." (29) In other words, it could be granted to private persons. Yet just two years prior to Farmer, Sir Matthew Hale, then Chief Justice of the King's Bench, held that fishing in tidal waters belonged to everyone, but that this was a rebuttable presumption rather than an unshakeable rule. (30) The idea that a private fishery could not bar the public does not appear until 1704. (31) Yet, later cases continued to allow for an individual to gain private rights via prescription to tidal waters, apparently to the exclusion of the public. (32)

In short, the public right to fish was far from settled. There was a popular belief that the right existed and that it was longstanding (33) but the evidence suggests otherwise. That being said, the veracity of the public right to fish does not particularly matter for its exportation to new lands; the common law can be and has been adapted to meet local conditions. What is more interesting is how courts reacted to attempts to challenge or extend the right in question.

III. IRISH LAND AND IRISH RIGHTS VERSUS ENGLISH PROPERTY AND ENGLISH COMMON LAW

Although the English common law had applied in Ireland since at least the start of the 17th century, the laws of Ireland were never completely identical to that of England, even after the Union of the Parliaments in 1801. From time to time, the Parliament in Westminster would pass legislation specific to Ireland and in 1842 a new Fisheries Act came into force for Ireland. (34) The Irish opposed the draft version of the Act, and the Parliamentary Debates report numerous petitions against it. The Act was duly amended and those amendments included changes to the public right to fish. (35) The Fisheries (Ireland) Act recognised a public right of fishing in inland waters, provided that right had existed for upwards of twenty years. The public's right was to be paramount as section 114 read, in part, "Provided always, that nothing herein contained shall be construed to lessen or abridge any public Right of Fishing by lawful Means and in lawful Seasons heretofore enjoyed and exercised within the Limits of any such several Fisheries." (36) Yet, as I show in this section, such legislative protection was rarely referred to by the courts, nor upheld when it was.

Before moving on to examine the cases it is helpful to set out some background. Nineteenth-century Ireland was a largely agricultural society. Prior to the final conquest of Ireland in 1603 it was "a pastoral and semi-nomadic society" which centred more on the raising of livestock than growing crops. (37) Post-conquest the landscape shifted, out of the hands of the native Irish and towards a more settled and crop-based agriculture, or at least for the native Irish towards an agriculture and diet heavily dependent on potatoes. (38) Fish was never the sole nor the main source of food but it was a useful supplement, particularly during the Irish potato famine of 1845-52. (39)

Historic records show that fish, including salmon, were plentiful in Ireland's rivers and the stocks appeared in good health in the early 19th century. (40) By the time of the 1842 Act, however, the decline of fish stocks was a source of ample concern. (41) According to Marilyn Silverman, the 1842 Act "had three ambitious but contradictory aims: to increase productivity, to allow everyone to fish, and to preserve the stocks." (42) Her study of three rivers in the southeast of Ireland details the lengthy struggle between public fishing rights and private claims to these rivers during the 19th century. She notes that the private owners moved their claims from the local magistrates to the higher courts as it was there that they stood a better chance of winning. (43) While Silverman's study was geographically limited, the cases discussed in this section are from across Ireland and show that in the fight over access to the fisheries, private rights proved more persuasive to the courts.

Starting in the 1850s, there were a number of Irish fishing rights cases in the higher courts, including three heard by the House of Lords (44) that sought to use the protection offered by the public right to fish. The Irish cases advance two arguments, both of which challenged the accepted version of the public fishing right: first that there were or could be several fisheries in tidal waters; and second that there was a public right to fish in inland waters. The former ought to have failed, given that proving a pre-Magna Carta grant was impossible for much of Ireland, while the latter ought to have won, given that proving the existence of a right for 20 years is relatively easy to do and certainly easier than proving a pre-1215 grant. Yet, that is not what happened and in the vast majority of cases private rights won the day with a little help from the common law courts.

The majority of these cases follow a similar pattern: they are primarily cases about trespass where the public right of fishing is used as a defence. (45) Those who claim a private or several fishery try to prove their title via a range of documents and other evidence of possession. The evidence often contained gaps or documents which contradicted each other, but since most cases were heard by juries, it fell to the juries to declare themselves convinced or not. These cases only appear in the written record as the result of challenges, usually by the defendants at trial, to judicial decisions about the admissibility of evidence or improper jury instructions. In the 1845 case of Gabbett v Clancy, (46) for example, a majority of the Queen's Bench did not think the trial judge's failure to tell the jury that "unless the Crown was seized of a several fishery prior to Magna Carta, they should find for the defendants" amounted to misdirection. (47) The fishery in question was in the tidal part of the River Shannon and thus, in theory, subject to the public right to fish. The plaintiffs managed to prove possession and so the public right did not apply.

More important is what the decisions have to say about the litigation in question. In the 1856 Chancery decision of Allen v Donnelly, the court observed that the litigation over the public's right to fish arose after local newsarticles asserted that such rights existed in Lough Foyle: apparently these newsarticles encouraged fund-raising to support the fishermen's rights. (48) Four years later, the Master of the Rolls delivered a stinging rebuke to the respondents in Ashworth v Browne, a case about a fishery between Lough Corrib and the sea, which was partially in non-tidal waters. (49) The petitioners in Ashworth alleged that "some persons of the humbler classes in Galway were in the habit of trespassing upon said fishery, by angling and taking salmon and other fish in said river" and asked the court to quiet their title. (50) Some of the respondents failed to defend their suit; instead, they put forward "two paupers" and "supported their defence by subscriptions." (51) This was "a bad example to the lower orders" and evidence of a lack of "manliness." (52) The Master of the Rolls also accused the defendants of thinking that "because the petitioners are Englishmen they are not to get justice in Ireland. This line of defence will not succeed in this Court." (53) In short, the public right to fish was set up as an Irish right, claimed against English landowners. The concern over fish stocks may have been prompted (at least in part) by the commercial value of salmon and other fish, but as the fisheries became privatized the fisheries question took on a markedly nationalist air. (54) Despite the nationalist undertones of the fisheries question, the Irish cases do not seem to be part of any unified strategy and the fight over fishing rights was not central to Irish nationalism at this time.

As it happens, in all of the cases where there was a clash between a claimed public right and a claimed private right, the private right won. (55) The only case I found where the public right succeeded was where a private owner attempted to restrict public fishing as a way of ensuring enough salmon reached their fishery. (56) That case did not represent two competing claims in one location as the other cases did.

In addition, the vast majority of cases also fail to mention the Fisheries (Ireland) Act and its guarantee of public fishing in inland waters. Two exceptions are Morrissey v Kilkenny, (57) and the Irish Court of Appeal's decision in O'Neill v Johnston. (58) In Morrissey the defendants stood accused of illegally fishing in the River Nore. Writing for the Court, Justice Lawson relied on the common law to ignore the fisheries legislation. He observed that the "highest authorities" had settled that use" by the public, no matter how long, will not confer a right to take fish in inland waters; and we must construe this section [of the Fisheries (Ireland) Act], having regard to the state of the law--the section says that the right must be in the nature of a common of piscary, which can only be acquired by grant or prescription; and such a public right as is here claimed, based on mere user, cannot, in point of law, exist." (59) Here it is not so much that Parliament had gotten the law wrong, but rather that the statute ought to be interpreted in accordance with the common law. Justice Lawson did not explain how such an interpretation worked with the doctrine of parliamentary sovereignty, nor did he explain the difference between "mere user" and prescription. Meanwhile in Johnston (CA) the Lord Chancellor of Ireland said with respect to the relevant sections of the Fisheries (Ireland) Act that "[t]hese sections do not create a right. There was a misapprehension as to the law, and a saving was based on that." (60) In short, Parliament had gotten the law wrong.

Leaving aside for a moment the question of why the courts were so hostile to the public right to fish, why were the Irish even making the argument? One potential answer to that question lies not with the fisheries legislation, but with the pre-conquest legal system of Ireland. Under the Brehon laws, land was owned by the clan and not by any one individual (or at least the clan retained a say in the land farmed by individuals), (61) and the same rules applied to govern access to Ireland's fisheries. (62) Ireland's fisheries pre-conquest were not an open commons in the sense that anyone could access the fisheries; the evidence suggests that each clan had a set of rules that governed access to the fisheries. (63) Communal access is, of course, much different than public access but given 19th century Irish demographics the difference was more semantic than real. Whether deliberate or not, the fisheries legislation tacitly recognized the Brehon laws' old rule and attempted to assert what were understood by the common law as public rights over 'private' fisheries harked back to the pre-conquest legal system. Such claims of public right were attempts to repackage an old right for the common law. Not surprisingly, the common law proved resistant even in the face of explicit legislation.

There was, however, a procedural weakness with the way in which the Irish fishing rights cases proceeded: the jury. It was for the juries to decide--albeit with judicial direction--whether or not there had been a grant of a several fishery or if the 'acts of ownership' were sufficient. In a country where the majority of the population was becoming or seemed to be becoming increasingly hostile to British rule, there was a possibility that jury decisions might not always be so favourable to private property in the fisheries. Bad feelings against the British and their property law was no secret or rare thing in late 19th-century Ireland and in 1878 the danger of juries was brought home to Irish fishing litigation by the House of Lords.

Bristow emerged out of an action for trespass to a claimed private fishery in Lough Neagh. Lough Neagh is the largest lake by surface area in the British-Irish Isles and is a de facto inland sea. England's largest natural lake, Lake Windermere, is a mere 16 square kilometres while Lough Neagh is 392 square kilometres. (64) To put it more simply, the question of whether there should be a public right to fish in inland waters had never faced a lake as large as Lough Neagh. Even if the public right to fish would not be extended to Ireland's other inland waters, Lough Neagh's sheer size might give rise to different considerations.

The trespass in Bristow was limited to a place called Fenmore and the plaintiff brought the action "for the purpose of establishing a right to a several fishery in the whole of the [L]ough." (65) At trial the judge removed the question of title from the jury by directing that a verdict be entered for the plaintiffs. When the case reached the House of Lords the only question for the Court was whether the trial judge had made the right decision: was the question of title one of law and thus for the judge, or was it one of fact and so for the jury? (66) The Lord Chancellor noted that much of the argument had been devoted to the question of whether Lough Neagh was subject to the public right to fish but he did not think that question was properly before the Court. (67) Several of the holdings commented on the interest in the case among the local community in Ireland and Lord Blackburn observed that "it appears from the report of the learned Judge that the jurymen intimated that, if the question was left for them, they were prepared to find a verdict for the Defendants." (68) Such comments echo Silverman's observation from southeast Ireland, namely that the private claims over inland fisheries were unpopular with the local population. (69)

The House of Lords ordered a new trial in Bristow but given Lord Blackburn's observation it should be no surprise that the new trial never happened. Hence the question of public fishing in Lough Neagh remained unanswered. What those who claimed several fisheries in Irish waters needed was some way to remove the decision about title from a jury, a ruling that would turn the question of title from one of fact to one of law. Such a ruling would eventually emerge when the question of title to Lough Neagh returned to the House of Lords in 1911 in Johnston v O'Neill. (70)

Johnston represents the culmination of the turn-of-the-century Irish fishing rights cases not just because it was one of the last from pre-partition Ireland but because it was the case where the public right to fish came closest to succeeding. The case centred on the open and notorious eel fishing of the appellants who argued that the public had fished in Lough Neagh since time immemorial. The reason the case focused on eels and not salmon was that by the time the case came to court, Lough Neagh's salmon fishery had all but collapsed, a pattern which had been repeated, to a greater or lesser extent, across Ireland. (71) At the time of the decision, there were about 800 fishermen supporting roughly 3000 individuals by fishing 'illegally' in Lough Neagh. (72) At trial and on appeal the Irish courts were unanimous: there was no such thing as a public right to fish in non-tidal inland waters. In so holding the Irish courts followed the existing Irish jurisprudence, which had refused to recognize a public right to fish different from that which existed in England. Given the extent of the lower courts' agreement, the House of Lords' split decision in Johnston surprised the three Law Lords who sided with the lower courts. (73) It is not clear what prompted such a split but given that the case occurred against the backdrop of increasing Irish nationalism, the split in the case went along party lines: The majority were all Conservatives, while the minority were all Liberals. Not surprisingly, the Conservatives and Liberals differed in their approach to the Irish question. At the risk of oversimplifying, the Conservatives were opposed to Irish Home Rule while the Liberals were in favour. (74) Equally striking was the extent of the disagreement, with the seven judgments disagreeing on just about everything it was possible to disagree on with one exception: that the public had fished for eels and other fish in Lough Neagh for centuries prior to 1911. (75)

Even those Law Lords who felt these fishermen were trespassers agreed that the alleged trespass had been going on for a significant time. The sheer extent and length of the fishery cast doubt on the respondents' claim to have had exclusive possession of the Lough Neagh fishery since 1605. (76) Much as with the earlier fishing rights litigation, the respondents in Johnston used a range of evidence in support of their claimed possession. The various grants, leases, and similar presented to the Court did not agree (at least one was alleged to be a forgery (77)) and they all rested on the assumption that the Crown had title to Lough Neagh and was thus able to grant it. (78) The documents were much the same as those presented in Bristow, but while in that case the House of Lords hinted that they were not much convinced by the evidence and left the final decision to a jury, this was not so in Johnston.

The majority focused their attention on the sufficiency of possession and the impossibility of the claimed public right. Lord Macnaghten thought the real issue was not whether the article title to Lough Neagh was flawless--it was clearly flawed--but whether "possession has been held ... in accordance with the express terms of the grant", (79) and in his view the evidence supported the claimed possession. (80) Lord Dunedin observed that although it was questionable that the Crown possessed the fishing rights to Lough Neagh, the fishery had to belong to someone as it was "contrary to law" for the fishery to be without an owner. (81)

Defective title aside, Lord Dunedin, Lord Macnaghten, and Earl Halsbury agreed that it was also impossible in law for the public to acquire any rights to an inland lake. (82) Here the majority undermined their argument by not including all of Lough Neagh's fisheries in the private fishery claimed by the respondents. The respondents were only interested in the eel fishery and not the "pollan" fishery even though it was "valuable and much sought after in the neighbourhood." (83) Lord Macnaghten expressly excluded the pollan fishery from being affected by the decision because "there is not ... the remotest probability of persons interested in salmon fishing or in eel fishing interfering with ... fishing for coarse fish in the lough. For one thing it could not pay to interfere." (84) Calling pollan a 'coarse fish' referenced the distinction between 'game fish' like salmon and trout, which were usually reserved for the gentry, and all other fish of lesser value. (85) Moreover, the pollan fishery could not be carried out on the same mass scale as eel fishing; it was only useful for subsistence fishing. (86)

Yet three of the other law lords were not convinced that the respondent had proven possession and Lord Ashbourne was only willing to recognize the respondents' possession over part of the lough. (87) In dissent Lord Shaw noted that one of the deeds relied upon by the respondents "quite openly and bluntly defies all the formalities relating to the grant of Crown properties, and it is frankly founded upon nothing but the will of the Protector [Oliver Cromwell], But I think that the maxim 'Stat pro ratione voluntas' [trans: the triumph of will over reason] can also be discerned equally as alone lying at the foundations in title of all the Royal grants." (88) So common was this practice that the common law had to devise a way to regularize such grants "either constitutionally or legally" through the passage of a statute. (89) In short, these grants could not and did not grant good title. A further confirmation was needed and it was not clear that title to Lough Neagh had ever been adequately confirmed. (90)

While the other dissenting judges focused more on the question of possession, Lord Shaw was careful to leave room to recognize the unique nature of Lough Neagh and the pre-conquest use of the lough. Lord Shaw was willing to concede that, due to its size, the lough might be subject to the public right to fish. (91) In addition, he thought that "[t]here may be much in the history of Ireland ... to confirm the view that the transition ... from what was practically a tribal [society] to what was practically a feudal system should be accompanied by the conservation of those public rights in those waters which ... form both a highway and a source of sustenance for the people of the country." (92) Although made in a paternalistic fashion, Lord Shaw's point was correct.

Lord Robson agreed that Johnston spoke to the Irish situation but he had a different explanation for the public's rights. For him "the facts ... are consistent with ... a license tacitly given by ... persons whose ancient title has never yet been extinguished by the Crown", (93) the point being that the Crown had not succeeded in completely asserting its authority and the pre-common law legal system was still in effect. Admittedly, this is a misunderstanding of the Brehon Law but it highlights the challenge Johnston posed to the common law and the Crown's authority.

Johnston and the other Irish cases also threatened the common law's regime of property rights. In Johnston, Lord Dunedin stated that Lough Neagh simply had to be private property, (94) meaning the public could only fish as the result of trespass or the tacit permission of the true owner. (95) The majority in Johnston recognized the injustice their decision would cause, but the law was the law and could not be altered just "because one sympathizes very much with a large class of poor people who are supposed to obtain their living by the exercise of the practice of fishing in an area over which they have no legal right to claim the rightfulness of their practice." (96) The legitimacy of the fishermen's claims could not be recognized without tacitly suggesting that the common law was potentially illegitimate with respect to Lough Neagh. The majority held that any rights to or in Lough Neagh must have originated from the Crown for them to be recognized by the common law. (97) The public could not prove that their rights had been granted by the Crown. As far as the common law was concerned they were trespassers.

IV. INDIGENOUS RIGHTS VERSUS PUBLIC RIGHTS

The story of how the public right to fish came to be exported to Canada, and other former British colonies, is important in and of itself. Again due to spatial constraints there is not enough room to offer a full history but a few key points are necessary. The first is that the public right to fish had not yet settled into its final form by the time the British conquest of North America began. (98) The second is that British colonizers, like other European colonizers, did not always respect Indigenous claims to North America, a tendency that increased as white settlement increased. Indigenous claims are absent from the Canadian case law on the public right to fish until the latter half of the 20th century. In fact, between 1947 and 1982 no Canadian decision appears to have even mentioned the public right to fish. (99) The third key point is that the common law as received in Canada is not the same as that which existed in England; Canadian courts were allowed to and did adapt the law to meet the new circumstances of Canada. (100) One of those changes to the common law was the reservation of the beds of navigable waters to the Crown. (101) This reservation was done to uphold the publics right of navigation and to protect their right of fishing in such waters. (102) The belief that the public right to fish extended to Canada's inland waters can be seen as far back as 1818 when William Claus, Superintendent General of Indian Affairs, told the Mississauga "that the rivers and forests were open to all and that the Mississaugas had an equal right to them." (103)

The initial sharing of the fisheries and other resources ignored Indigenous perspectives on whether they had retained any exclusive rights and it broke down when white settlement increased. (104) It also ignored that Indigenous Peoples may not have understood the fisheries as being open commons. The evidence suggests that Indigenous legal systems had (and still have) rules and limits about who could access which fisheries. (105) The story of how Indigenous peoples were pushed out of the fishing industry, particularly in British Columbia, is well worn. Colonial officials and white settlers pushed for the fisheries to be opened and the public right to fish offered a powerful argument in support of such demands. (106) Such displacement was motivated, by and large, by the commercial value of the fisheries. (107) In 1982, Aboriginal rights finally received explicit constitutional recognition under section 35 of the Constitution Act, 1982. (108) Such recognition allowed Indigenous peoples to fight for increased access to Canadian fisheries. It was against this background that a cluster of cases referencing the public right to fish emerged.

After its 35-year absence from the case law, the public right to fish returned in obiter dicta of Justice La Forest of the New Brunswick Court of Appeal (as he then was). He merely mentioned that the right had existed since "time immemorial" but that did not give it special importance. (109) Five years later, the Pacific Fishermen's Defence Alliance (PFDA) attempted to rely on the public right to stop the Nisga'a's land claims agreement. Justice Dube of the Federal Court rejected the PFDA's claim, noting that the government had "to determine, define, recognize and affirm whatever aboriginal rights existed. It may not ignore them under the guise of protecting so-called public fishing rights." (110)

In 1990, the Supreme Court of Canada (SCC) explicitly recognised an Aboriginal right to fish for food and recognised an Indigenous priority over the fisheries. (111) The Court's decision in Sparrow affirmed that of the British Columbia Court of Appeal, which had noted that the federal fisheries officials already had a practice of preferring the Indigenous food fishery. (112) The day after the SCC decided Sparrow, the British Columbia Supreme Court issued its decision in Mann v Canada which arose out of an attempt by commercial fishermen to challenge the government's practice of giving Indigenous fishers priority. (113) Again the commercial fishermen sought to rely on the public right to fish. The decision in Mann did not directly answer the question of public fishing given that it centred on a lack of jurisdiction but the claimed common law right was found to raise "fundamental constitutional questions." (114) A year later, Justice MacKinnon rejected the Crown's attempt to strike out an amended statement of claim in this litigation. (115) Mann does not appear to have ever resulted in a decision on the points raised by the commercial fishermen. Nonetheless, it highlights how non-Indigenous fishers were attempting to use the public right to fish to protect and justify their access to Canada's fisheries.

In 1993, the public right to fish appeared in the British Columbia Court of Appeal's decision in R v NTC Smokehouse. (116) In NTC Smokehouse BCCA, the public right is mentioned once with the comment that it cannot be extinguished in tidal waters without federal legislation and no such legislation existed. (117) In NTC Smokehouse BCCA, the issue was whether or not the Sheshaht and Opetchesaht First Nations had exclusive rights over the Somass River as it flowed into the Port Alberni inlet. (118) As the river was tidal, the claim of exclusivity failed.

Although the public right to fish did not appear in the Supreme Court's 1996 decision in NTC Smokehouse, (119) three other cases decided by the Court that same year explicitly or tacitly referenced the public right to fish. These cases were R v Gladstone, R v Nikal, and R v Lewis. (120) Gladstone was about a fishery in tidal waters to which the Heiltsuk claimed an exclusive right, or, more precisely, a right that would have amounted to exclusivity. In Gladstone, Chief Justice Lamers majority decision incorrectly claimed that the public right to fish had existed in the common law since the time of the Magna Carta. Chief Justice Lamer also thought that the constitutional entrenchment of Aboriginal rights could not, did not, and was not meant to extinguish the public's common law rights. (121) The difficulty is not so much that the majority erred in their reference to the Magna Carta--this error is rife among common law judges--but that they struggled to conceptualize what an exclusive Indigenous fishery would look like and how it would interact with the potential rights which might yet be recognized of other Indigenous Peoples. In addition, an exclusive fishery would suggest an Indigenous right to fish for commerce, not just for food. Chief Justice Lamer seemed to think that the right to "participate in the commercial fishery" was a right held by Canadians and it was only by virtue of being Canadians that the Heiltsuk could participate in the commercial fishery. (122)

Although he makes the point somewhat awkwardly, Chief Justice Lamer was trying to strike a balance between Indigenous rights and the desire of non-Indigenous Peoples to access the fishery. Access to British Columbia's fisheries is politically sensitive, (123) and Chief Justice Lamer clearly felt the need to recognize that there had been extensive non-Indigenous reliance on BC's fisheries. The fact that the Heiltsuk may have exercised exclusive control over the fishery prior to British colonization of BC was not entirely irrelevant but it did not mean that the Heiltsuk could have an exclusive fishery under the common law, particularly not in tidal waters.

What Nikal and Lewis made clear is that an exclusive Indigenous fishery could not exist even where the English common law might have recognised one. The facts of Nikal and Lewis are similar in that both involved fisheries in rivers that were either contained within the boundaries of a reserve or formed the boundary of the reserve, respectively. Both First Nations attempted to rely on the common law rules about riparian ownership to assert their proprietary right over the fishery. Under the English common law, as both rivers in question were non-tidal, the First Nations could have owned at least part of the river bed and the fisheries as riparian owners, unless of course the fisheries or riverbed had been expressly excluded in the grant of the reserve lands. In both cases the Indigenous fishers argued that their actions were legal because they were in accordance with band bylaws, even though their actions violated fisheries legislation. In both cases, however, the SCC found that the common law's rules about river ownership had never applied in BC.

In Nikal, the majority claimed that western Canadian courts had never followed the common law rule about ownership of riverbeds with respect to navigable rivers. (124) Citing to 1921 Appeal Court decisions from Manitoba and Alberta, the majority found that the local conditions of western Canada had resulted in a modification of the common law rule so that the public had a right to fish in non-tidal navigable waters. (125) In addition, the majority also found that the Crown had not intended to grant an exclusive fishery to the Wet'suwet'en with respect to the Bulkley River. (126) The majority said that the Crown's policy "was to guarantee full public access to the fisheries, and to reject any exclusive claims to fishing grounds" including those of Indigenous peoples. (127) Not surprisingly the majority referenced the Magna Carta to further support the claim that there could be no exclusive fishery; (128) the Crown may have attempted to protect some of the fishing grounds for Indigenous Peoples but this was "far different from assigning exclusive title to those fishing grounds". (129)

In contrast to Nikal, the river at issue in Lewis formed the boundary to the reserve and thus the question was whether or not the ad medium filum acquae rule applied. Here, Justice Iacobucci writing for the Court, distinguished the Privy Council's decision in BC Fisheries because it did not deal with a river being used as a boundary. (130) Justice Iacobucci also found that the ad medium presumption did not apply to navigable rivers in BC. (131) Yet it is clear from BC Fisheries that fisheries in British Columbia's rivers, when in non-tidal rivers, had to be the "subject of property". (132) In BC Fisheries the Privy Council applied the same common law rules to navigable rivers as applied in England: they had to be owned by someone, even if that someone was the Crown. (133) The decision in BC Fisheries strongly suggests that the Crown's ownership of such rivers would be the same as a private owner and there would be no automatic public right.

In Lewis, as the majority did in Nikal, Justice Iacobucci emphasized historical evidence that showed the Crown did not intend to include the fishery as part of the reserve. Nor did the Crown intend to "grant exclusive use of any public waters for the purpose of fishing." (134) Here the phrasing "public waters" makes clear that BC's rivers were always public, even before Indigenous land claims had been settled. The public right to fish was not explicitly mentioned in Lewis but it is implicit in the Court s refusal to find an exclusive Indigenous right to fish.

The Supreme Court's misinterpretation of BC Fisheries and its insistence that the common law of Canada was and is different than that of England point to the importance of BC's fisheries. When BC joined Confederation in 1871 one of the promises the federal government made was the "Protection and Encouragement of Fisheries." (135) This promise came roughly around the same time that officials in Ontario were turning away from their previous policy of granting or recognizing exclusive Indigenous fishing rights in order to grant settlers access to the fisheries. (136) Not surprisingly, the concern over access to the fisheries was primarily economic. (137)

That early 19th-century Canada lacked infrastructure such as roads and railways made its rivers the de facto highways of the country. Understandably the need to keep such rivers open to navigation was essential for the development of the Canadian economy. The regulation of Canada's de facto highway system of inland waters did not necessarily require as large a deviation from the common law as some Canadian courts ultimately made. Historically the public right of navigation was a question of regulation and did not require Crown ownership, (138) in fact many English rivers were subject to this right while the bed remained in private hands. Canada was perfectly capable of recognizing such a regulatory-proprietary divide in its inland waters. Indeed, the Privy Council relied on this divide in the Reference re Provincial Fisheries with respect to who controlled Canada's inland fisheries: the provinces owned them, the federal government regulated them. (139) Of course the question of whether or not Canada's inland fisheries were inherently public or inherently private was not settled by that case, but nor was private ownership of the fisheries completely precluded as later courts seemed to think.

The real issue in Nikal and Lewis is not so much whether tidal, nonnavigable waters were subject to the public right to fish, but which body had legislative authority over the fishery. (140) In both cases the First Nations next to the rivers had issued their own bylaws about fishing which conflicted with the fishing regulations issued under the authority of the federal Fisheries Act. (141) The need for a uniform and centralized system of fisheries regulation is important in order to protect against overfishing. (142) Yet when the reserves in question were created at the end of the I9th century, overfishing was not the primary concern, but rather the need to develop these fisheries and protect access for non-Indigenous peoples. (143)

The decisions in Nikal and Lewis relied on the rules about inland waters in order to nullify the possibility of First Nations having all the same rights as riparian owners under the English common law. The idea that Canada's non-tidal, navigable waters were inherently public was never explicitly adopted by the Privy Council; it was an idea promoted by various Canadian officials because it served to guarantee and justify non-Aboriginal access to valuable fisheries. (144) If Indigenous peoples were to continue having access to these fisheries, it would only be at the same level as non-Indigenous peoples--they would have no special rights. (145) Although cloaked in the language of equality, this 19th-century policy aimed at assimilating Indigenous peoples.

The Constitution Act, 1982 may have explicitly recognized Indigenous rights but the cases of Gladstone, Nikal, and Lewis made it clear that these rights do not and cannot include exclusive fisheries. These cases relied on the doubtful doctrine of the public right to fish and its questionable application to all navigable waters in Canada. Though it is clear that the Supreme Court was attempting to balance access to the fisheries and protect the overall integrity of Canada's fishing regulations, it is equally clear that Indigenous rights had to flow from the common law. (146) The existence of an exclusive Indigenous fishery, in contrast to the accepted theory of public access to all navigable waters, pointed to a pre-existing legal system. (147) Much as with Johnston, the issue for these Indigenous fishing rights cases was that the claim made by Indigenous Peoples did not and could not originate from the Canadian common law. The claim was understood as contrary to the common law as adopted and adapted in British Columbia and much of the rest of Canada.

Canada's deviation from the common law of England did two things: first it differentiated Canada from England; (148) second it served to preclude exclusive Indigenous fisheries. Both of these are tied with the assertion of a particular national identity and speak to the kind of nation that Canada wished to be. The Supreme Courts recognition of Indigenous priority of access to certain fisheries sought to reconcile the common law with section 35 of the Constitution Act, 1982 or perhaps vice versa. Yet it ultimately failed to grapple with the colonial legacy of access to fisheries. There is no doubt that the common law could be, should be, and has been altered as local conditions necessitated and one of the key differentiating features of Canada at the time of the common laws reception was the existence of Indigenous Peoples and their legal traditions. That the common law should have been adapted in western Canada such that it justified and continues to justify the dispossession of Indigenous Peoples is more than a little problematic, particularly when the original common law rule would have better protected their rights. The laws, policies, and jurisprudence about access to BC's fisheries were not based in sound legal doctrine; they were and to some extent remain, based on the will of the Canadian government.

V. FISHING RIGHTS AND COLONIAL DISPOSSESSION

The challenge faced by the House of Lords in Johnston and the SCC in the 1996 fishing rights cases invoked a dejure dispossession with de facto continued use. The use in both of these situations did not seem to be supported by the common law as received in Ireland or Canada. In Ireland the rule was that all nontidal waters had to be privately owned and no public right could exist therein; at least that was the rule according to the jurisprudence and legislation that suggested otherwise was ignored by the courts. In Canada, the rule was that all navigable waters were subject to the public rights of fishing and navigation, so that the ad medium rule did not apply to riparian owners. Both of these rules, however, emerged not out of longstanding legal doctrine consistently applied but out of political attempts to shape the law. The very idea of the public right to fish arose in the 17th century as part of a nationalizing process, designed to justify a states control over its territorial waters, so as shown in the second part of this article the origins of the public right to fish are much more recent than many judges have since claimed. With these questionable origins in mind, this section examines what the courts in Ireland and Canada attempted to do in order to reconcile the extra-legal uses of the fisheries with the existing law and why they ultimately failed to address longstanding injustices.

In Johnston several Law Lords attempted to find ways to legally justify and protect the Lough Neagh fishermen. These included the pre-existence of their right to fish in the lough, the idea that the common law can recognize local customs even if they differ from the law, and the argument that the English Crown had never secured title to the Lough and so could not grant the fishing there to anyone. Yet such attempts ultimately failed and the majority of the Law Lords held that there could be no public right to fish in Lough Neagh. Johnston took place against the background of increasing pressure on the Lough Neagh eel fishery and the preservation of that valuable fishery played an important role in the litigation. So too did the protection of common law property rights play an important role in the decisions of the majority. Lord Macnaghten's observation that every title in Ulster was stolen, coupled with his refusal to address such historic wrongs, points to the old common law preference for longstanding possession. (149) In fact the ultimate ratio of Johnston, and one of the principles for which it is cited by subsequent cases, is its holding about what kind of possession is sufficient to cure defects in title. (150)

Although Earl Halsbury stated that sympathy for poor people was not a good reason to alter the law, (151) the others in the majority attempted to leave some room for the public fishery, albeit at a smaller scale. Lord Macnaghten said that the fishers should have stuck to line fishing and not used nets, a claim that Lord Robson then debunked by arguing that the use of nets was longstanding. (152) Lord Macnaghten also held that it was fine for the fishers to continue to fish for pollan. (153) Lord Dunedin seemed to agree that public fishing for pollan was acceptable, in part because it could never be profitable for a private owner. (154) The problem is that leaving the pollan fishery alone made it clear that the real issue was not that the public fishing was illegal but that it was bad for the respondents' commercial eel fishery. The room that the majority left for the fishers was that which was not valuable; the fishers could survive but they could not profit.

The SCC did not work quite so hard to find a way to protect the Indigenous fishers in Gladstone, Nikal, and Lewis. No justice advanced the argument that there was an exclusive Indigenous right to fish in these cases. The Supreme Court did recognize an Indigenous priority over access to the fisheries at issue, but this priority stemmed from their right to fish for food and did not extend to cover profit. (155) Such a divide between fishing for food and fishing for commercial value overlooks the fact that Indigenous peoples might well need to trade some fish in order to afford the tools and materials necessary to preserve the rest of their catch. (156) This puts Indigenous fishers, particularly subsistence fishers, in a bit of a bind; presumably, so long as they merely traded fish for the items they needed and did not receive cash, this would not count as 'commerce' as per Gladstone. (157) Subsequent jurisprudence has left more room for the Indigenous right to fish to include some rights to sell, but this will not extend to an unlimited commercial fishery. (158) As in Johnston, the fishers claiming the right contrary to the common law might be allowed to fish but their profit will be limited, and their fishing must be in accordance with the national fisheries regime. Unlike Johnston, which examined the origins of private title to Lough Neagh, the SCC never examined where the Crown got its title to the various fisheries; a question all the more pressing for large parts of BC, which remain formally unceded territory. (159)

Ultimately, the key to Johnston and the 1996 Indigenous fishing rights cases is not so much the question of what the law actually is, but who gets access to what resources and under what law. Attempts to legally justify the decisions in the 19th century Irish fishing rights cases and the late 1990s Canadian Indigenous fishing rights cases fail. There are compelling legal arguments as to why the outcome for both should have been different: either the existence of a statute protecting public fishing in inland waters; or jurisprudence supporting the idea that inland fisheries could be privately owned, to say nothing of constitutional protections for Indigenous rights. These alternative arguments would have also been the situation, by and large, prior to the reception of the English common law in both Ireland and Canada. The arrival of English common law and settlers altered the legal landscape and for whatever reason in both Ireland and much of Canada the common law usurped pre-existing legal systems and was deemed equally applicable to everyone. (160) It was never the case that Irish people or Indigenous Peoples were completely prohibited from the fisheries in their respective countries, merely that they could only access it in the same ways as everyone else under the common law.

The problem in both of these examples is not merely a question of sharing the physical space but also a question of who gets to share in the benefits of the land: who owns which resources and why? In Ireland the answer was that fisheries were privately owned in non-tidal waters; but in Canada the answer is quite different, with public ownership (or assumed public ownership) being the norm not just with respect to fisheries but with respect to oil and gas as well. (161) The Canadian situation may seem to be more democratic but it cannot be more just if this public ownership fails to account for the continued existence of Indigenous rights and laws for accessing the fisheries.

The balancing done in Johnston and the recognition of Indigenous priority over BC's fisheries are judicial attempts to find a way for everyone to share in the fishery, insofar as the fishery allows. Yet this balancing falls short simply because it does not recognize the actual facts or the law. It is clear that the public had fished for eels since time immemorial in Lough Neagh and it is also clear that in many parts of Canada, Indigenous peoples had and continuously acted as though they had an exclusive fishery. (162) The balancing is also problematic because it cannot hear the echoes of pre-common law legal orders. Consequently, whether intentionally or not, the decisions examined in this article repeat the dispossession and conquest of previous centuries.

Of course, overfishing must be guarded against and it seems likely that a centralized form of control is the best way to do this. Such centralized regulatory control does not require the fishery to be publicly owned; it has an impact on the property rights of those who own fisheries but it will not necessarily abolish that property. (163) Nor would the recognition of an exclusive Indigenous fishery completely abolish the public right to fish--however doubtful the origins of the public right may be--as public fisheries can and do coexist alongside private fisheries. (164) Centralized control could also potentially leave room for Indigenous law to shape access to the fisheries though that would require the federal government to work with Indigenous Peoples and take Indigenous laws seriously.

In Ireland, Johnston has proven to be the last word on whether or not public fishing rights could exist in non-tidal waters. (165) The 1996 cases of Gladstone, Nikal, and Lewis do not have to be the last word on whether there can be an exclusive Indigenous fishery in Canada's non-tidal, navigable waters, or even in its tidal waters. The public right to fish is an accepted common law right, even if it is not as longstanding as the courts think, but the right is not absolute and can be altered. There is no legal reason why exclusive Indigenous fisheries could not exist along sections of the Canadian coast or in inland waters. If anything this would be the recognition of a longstanding custom--something the common law has always been able to do. (166) In other words, it is open for the courts to recognize such a fishery or for such a fishery to be granted'. (167) The recognition of Indigenous priority over the fisheries has created a new right under the common law, but it is relatively limited and seeks to divide fishing for subsistence from fishing for commercial gain. As such Indigenous priority over the fisheries is an example of the 'frozen rights' problem, which limits rights claims to what was integral to Indigenous cultures. (168)

VI. CONCLUSION

The jurisprudence on the public right to fish offers a case study of the ways in which the law can be both a tool for resisting and enforcing colonialism and the role that the courts have to play in such battles. In Ireland and Canada, the courts understood the law as incapable of recognising the claims advanced. In the former, there simply could not be any public rights in inland waters; while in the latter, there simply had to be public rights in inland waters. If it was even mentioned in the examined decisions that there was a statute protecting public fishing rights in Ireland, or that the existing law in Canada was inconsistent as to the existence of a public right to fish, it did not seem to matter in the result. Insofar as both the Irish and Canadian cases tacitly invoked pre-common law legal systems, they did so in terms which the common law could have recognised as its own: statute, or the ad medium presumption. In not recognising these claims, the courts reconfirmed the colonial dispossession that formed the backdrop to the litigation in both Ireland and Canada.

A comparison of the jurisprudence on fishing rights in both countries highlights how the common law can change to fit new conditions. Yet the changes that the common law courts have been willing to recognise fit within the broader pattern of colonial goals: defending private property and protecting commerce. In Ireland the courts refused to extend the public right to fish to inland waters because that conflicted with the common law of England. In contrast, Canadian courts have consistently upheld the public's right to fish in inland waters and have refused to find an exclusive Indigenous right to fish, even where the common law as it applied in England would have found such an exclusive right. The courts' respective willingness to 'deviate' from the English common law rule, were not based on recognition of the different pre-existing legal orders in Ireland and Canada, but instead were motivated by the outcome which best suited colonial interests.

APPENDIX A
Table 1: Chronological of Public Fishing Rights Cases

Case Name                                              Year   Country

Gabbett v Clancy (1845), [1844] 8 Ir L Rep 299         1845   Ireland
  (QB)
Allen v Donnelly (1856), 5 I Ch R 229                  1856   Ireland
Ashworth v Brown (1860), 10 I Ch R421                  1860   Ireland
Malcomson v O'Dea (1863), 11 ER 1155, 10 HL            1863   Ireland
  Cas 593
Johnston v Bloomfield (1867), IR 8 CL 68               1867   Ireland
Murphy v Ryan (1868), IR 2 CL 143 (CP)                 1867   Ireland
Chricton v Collery (1870), IR4 CL 508                  1870   Ireland
Wyse v Leahy (1875), IR 9 CL 384                       1875   Ireland
Bristow v Cormican (1878), 3 AC 641, 11 Ir L T         1878   Ireland
  Rep 56 (HL)
Morrissey v Kilkenny (1884), 14 L R Ir 349             1884   Ireland
Reference re Provincial Fisheries, [1898] AC 700,      1898   Canada
  78 LT 697
Keewatin Power Company v Kenora (Town), 13             1906   Canada
  OLR 237, [1906] OJ No 133
O'Neill v Johnston (1908), [1909] 1 IR 237 (CA)        1908   Ireland
Ireland (AG) v Fleming, [1911] 1 IR 323 (Chanc         1911   Ireland
Div)
Johnston v O'Neill, [1911] AC 552, 81 LJPC 17          1911   Ireland
Flewelling v Johnston, 16 Alta LR 409, [1921] 2        1921   Canada
  WWR 374 (SCAD)
In re Iverson and Greater Winnipeg Water District,     1921   Canada
  [1921] 1 WWR 621, 57 DLR 184
Reference re British Columbia Fisheries, 5 WWR         1921   Canada
  878, 15 DLR 308
Toome Eel Fishery (Northern Ireland) v Cardwell,       1963   Ireland
  [1963] NI 92, 1963 WL 21430 (HC)
Chessie v JD Irving (1982), 140 DLR (3d) 501,          1982   Canada
  [1982] NBJ No 314
Pacific Fishermen's Defence Alliance v Canada          1987   Canada
  (Minister of Indian Affairs), [1987] 3 FC
  272, 9 FTR86
Mann v Canada, (1 June 1990 & 25 April                 1990   Canada
  1991), Vancouver A881092
R v Sparrow, [1990] 1 SCR 1075, [1990] 4 WR 410        1990   Canada
R v NTC Smokehouse (1993), 80 BCLR (2d) 158,           1993   Canada
  20 WCB (2d) 297 (CA)
R v Gladstone, [1996] 2 SCR 723, [1996] WWR 149        1996   Canada
R v Lewis, [1996] 1 SCR 921, [1996] 5 WR 348           1996   Canada
R v Nikal, [1996] 1 SCR 1013, [1996] 5 WR 305          1996   Canada
Ahousaht Indian Band v Canada (AG), 2011 BCCA          2011   Canada
  237, 333 DLR (4th) 197


(1) For a chronological table of these cases, see Appendix.

(2) The Brehon laws never formed a unified code throughout Ireland. See Hans S Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge: Cambridge University Press, 1985) at 57. Nor can Indigenous legal systems be said to be identical across Canada.

(3) I say "England" here as the law the British exported was the English common law, the legal system not being uniform throughout the United Kingdom.

(4) See Richard Barnes, "Revisiting the Public Right to Fish in British Waters" (2011) 26:3 Int'l J Marine & Coastal L 433 at 450, 453.

(5) See e.g. Dianne Newell, Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries (Toronto: University of Toronto Press, 1993); Victor P Lytwyn, "Waterworld: The Aquatic Territory of the Great Lakes First Nations" in Dale Standen & David McNab, eds, Gin Das Winan: Documenting Aboriginal History in Ontario (Toronto: Champlain Society, 1996) 14; James Kenny & Bill Parenteau, "Each Year the Indians Flexed Their Muscles a Little More: The Maliseet Defence of Aboriginal Fishing Rights on the St John River, 1945-1990" (2014) 95:2 Can Historical Rev 187; Peggy J Blair, "Settling the Fisheries: Pre-Confederation Crown Policy in Upper Canada and the Supreme Court's Decisions in R v Nikal and Lewis" (2001) 31:1 RGD 87 [Blair, "Settling the Fisheries"]; Peggy J Blair, "No Middle Ground: Ad Medium Filum Aquae, Aboriginal Fishing Rights and the Supreme Court of Canada's Decisions in Nikal and Lewis" (2001) 31:3 RGD 515 [Blair, "No Middle Ground"]; Douglas C Harris, "Territoriality, Aboriginal Rights, and the Heiltsuk Spawn-on-Kelp Fishery" (2000) 34:1 UBC Law Rev 195 [Harris, "Territoriality"]; Douglas Harris, "Indian Reserves, Aboriginal Fisheries, and the Public Right to Fish in British Columbia, 1876-82" in John McLaren et al, eds, Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press, 2005) 266 [Harris, "Indian Reserves"]; Douglas C Harris, Fish, Law, and Colonialism: The Legal Capture of Salmon in British Columbia (Toronto: University of Toronto Press, 2001) [Harris, Fish, Law, and Colonialism]; Douglas C Harris, Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925 (Vancouver: UBC Press, 2008) [Harris, Landing Native Fisheries}. This list is not exhaustive.

(6) For more on the argument that treaties recognized Indigenous legal orders, see e.g. John Borrows, "Constitutional Law From a First Nation Perspective: Self-Government and the Royal Proclamation" (1994) 28:1 UBC L Rev 1.

(7) See Gerard V La Forest et al, Water Law in Canada--The Atlantic Provinces (Ottawa: Information Canada, 1973) at 196.

(8) See Nicholas Vincent, "Introduction" in Nicholas Vincent, ed, The Magna Carta: The Foundation of Freedom, 1215-2015 (London: Third Millennium Publishing, 2015) 12 at 13.

(9) See Ki-ch'ang Kim, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000) at 1-4.

(10) Barnes, supra note 4 at 442-43; Glenn J MacGrady, "Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines that Don't Hold Water" (1975) 3:4 Fla St UL Rev 511 at 554; James L Huffman, "Speaking of Inconvenient Truths--A History of the Public Trust Doctrine" (2007) 18:1 Duke Evntl L & Pol'y F 1 at 9-12.

(11) See e.g. R v Gladstone, [1996] 2 SCR 723 at 770-71, [1996] WWR 149 [Gladstone]; Anderson v Alnwick District Council, [1993] 3 All ER 613 at 621, [1993] 1 WLR 1156.

(12) McKie v KVP Co Ltd, [1947] OR 398, [1948] 3 DLR 201 at 215 [McKie]; Barnes, supra note 4 at 443; Mark D Walters, "Aboriginal Rights, Magna Carta, and Exclusive Rights to Fisheries in the Waters of Upper Canada" (1998) 23:2 Queens LJ 301 at 303 [Walters]. This chapter was numbered 47 in the 1215 text. See The Britsh Library, "English translation of Magna Carta", online: <www.bl.uk/magna -carta/articles/magna-carta-english-translation >.

(13) This chapter was numbered 33 in the 1215 text. See text cited in supra note 12.

(14) See Stuart A Moore & Hubert Stuart Moore, The History and Law of Fisheries (London: Stevens & Haynes, 1903) at 7.

(15) Ibid at 10. See e.g. chapter 23 of the original text, cited in supra note 12.

(16) George C Oke, A Handy Book of the Fishery Laws (London: Butterworth, 1903) at 269; Coke 2 Inst C 16. Though here Coke is citing to an older authority which is likely doubtful. See Moore & Moore, supra note 14 at 12-13.

(17) Stuart Moore, A History of the Foreshore (London: Stevens & Haynes, 1888) at 741-43.

(18) An Act for Wears and Fishgarthes 12 Ed IV, c 7 (1472).

(19) Thomas Digges, Proofs of the Queen's Interest in Lands Left by the Sea and Salt Shores thereof reprinted in Moore, History of the Foreshore, supra note 17 at 185-211.

(20) Barnes, supra note 4 at 439-40.

(21) Ibid at 440; J McDonnell, "Inland Fisheries in Medieval Yorkshire" (1981) Borthwick Articles No 60 at 28; Gordon Jackson, "State Concern for the Fisheries, 1485-1815" in David J Starkey, Chris Reid & Neil Ashcroft, eds, England's Sea Fisheries: The Commercial Sea Fishers of England and Wales Since 1300 (London: Chatham, 2000) 46 at 47.

(22) For an overview of this process, including some discussion as to why this should happen, see James H Barrett et al, "Interpreting the Expansion of Sea Fishing in Medieval Europe Using Stable Isotope Analysis of Archaeological Cod Bones" (2011) 38:7 J Archaeological Science 1516; D Serjeantson & CM Woolgar, "Fish Consumption in Medieval England" in CM Woolgar, D Serjeantson & T Waldron, eds, Food in Medieval England: Diet and Nutrition (Oxford: Oxford University Press, 2006) 102.

(23) (1685) 1 Keb 532, 83 ER 1096 (KB). See also Bulstrode v Hall & Stephens (1662), 1 Sid 148, 82 ER 1024. The latter citation is the same case, but the report is in French and has more detail.

(24) 77 ER 218, 5 Co Rep 106.

(25) 2 Roll Abr 170 (translation by author: "the soil where the sea flows and reflows, that is to say between the high water mark and the low water mark may be part of the manor of a subject" [emphasis added]) (cited to the most recent edition).

(26) 6 R II 35 (Protect 46) (CP).

(27) For the shifting meaning of ligenace, see Kim, supra note 3 at 137-142; Ann Lyon, "From Dafydd ap Gruffydd to Lord Haw-Haw: The Concept of Allegiance in the Law of Treason" (2002) 33 Cambrian L Rev 35 at 40-41.

(28) Kirby, Lessee of Killigrew and Prodger v Gibs (1666), 2 Keb 294, 84 ER 183 (KB).

(29) The Attorney General v Sir Edward Farmer (1676), 83 ER 125, Term Mich 28 Car 2 (KB) at 242.

(30) Lord Fitzwalter's Case (1673), 1 Mod 105, 86 ER766 at 766-67.

(31) At least this is the first reference I found to it. See Warren v Matthews (1703), 87 ER 831 at 831, 6 Mod 73 (KB).

(32) See Carter v Murcot (1768) 98 ER 127 at 128, 4 Burr 2162; The Mayor and Commonalty of Orford v Richardson (1791) 100 ER 1106 at 1107, 4 TR 437. But see Lord Chief Justice Willes' decision in Ward v Creswell, 125 ER 1165 at 1166, (1741) Willes 265.

(33) See Moore & Moore, supra note 14 at vi, 6, 13-14.

(34) Fisheries (Ireland) Act (1842), 5 & 6 Vict, c 106.

(35) See TM Healy, Stolen Waters: A Page in the Conquest of Ulster (London: Longmans, Green & Co, 1913) at 462.

(36) Fisheries (Ireland) Act, supra note 34, s 114. See also s 65.

(37) Leslie Clarkson & Margaret Crawford, Feast and Famine: Food and Nutrition in Ireland, 1500-1920 (Oxford: Oxford University Press, 2001) at 25.

(38) See Clarkson & Crawford, supra note 37 at 86.

(39) See ibid at 75, 80-81, 106; Marilyn Silverman, An Irish Working Class: Explorations in Political Economy and Hegemony, 1800-1950 (Toronto: University of Toronto Press, 2001) at 150 [Silverman, An Irish Working Class].

(40) See ibid at 142.

(41) See Silverman, An Irish Working Class, supra note 39 at 144-45. For contemporary concerns, see e.g. Herbert Francis Hore, An Inquiry into the Legislation, Control, and Improvement of the Salmon and Sea Fisheries of Ireland (Dublin: Hodges & Smith, 1850) at 1-2.

(42) Silverman, An Irish Working Class, supra note 39 at 147.

(43) Silverman, An Irish Working Class, supra note 39 at 180-82. Many of the lower court cases are unreported, but for some discussion of them, see Marilyn Silverman, "How Custom Became a Crime on the River Nore: Fishing at Bennettsbridge, 1837-95" in William Murphy, ed, In the Shadow of the Steeple IX (Duchas-Tullaherin Parish Heritage Society, 2006) 66; Marilyn Silverman, "From Fisher to Poacher: Public Right and Private Property in the Salmon Fisheries of the River Nore in the Nineteenth Century" in Marilyn Silverman & PH Gulliver, eds, Approaching the Past: Historical Anthropology Through Irish Case Studies (New York: Columbia University Press, 1992) 99 [Silverman, "From Fisher to Poacher"].

(44) See e.g. Malcomson v O'Dea (1863) 11 ER 1155, 10 HL Cas 593; Bristow v Cormican (1878), 3 App Cas 641, 11 Ir L T Rep 56 (HL) [Bristow cited to App Cas]; Johnston v 0'Neill [1911] AC 552, 81 LJPC 17 (HL) [Johnston].

(45) See e.g. Wyse v Leahy (1875), IR 9 CL 384 at 388 [Wyse],

(46) (1845), [1844] 8 Ir L Rep 299 (QB) [Gabbett].

(47) Ibid at 311.

(48) (1856), 5 I Ch R 229 at 229-31, sc 1 Ir Jut NS 165 (C).

(49) (1860), 10 I Ch R421 [Ashworth].

(50) Ibid at 427,

(51) Ibid at 439-40.

(52) Ashworth, supra note 49 at 439-40.

(53) Ibid at 440.

(54) See Silverman, An Irish Working Class, supra note 39 at 165. In the 1960s, the IRA briefly tried to turn fishing rights into an issue again, an attempt which was largely unsuccessful. See Tim P O'Neill, "Fish, Historians, and the Law: The Foyle Fisheries Case" (2009) 17:6 Hist Ir 62 at 65.

(55) Most of the cases involved a claimed fishing right but one was about the right to take seaweed. Aside from the Irish fishing rights cases discussed in the text, see also Murphy v Ryan (1868), Ir R 2 CL 143 (CP); Johnston v Bloomfield (1867), IR 8 CL 68; Crichton v Collery (1870), IR 4 CL 508; And see Wyse, supra note 45 (the right to take seaweed).

(56) Ireland (AG) v Fleming, [1911] 1 IR 323 (Chanc Div) at 370, 387.

(57) (1884), 14 L R Ir 349 [Morrissey].

(58) (1908), [1909] 1 IR 237 (CA) [Johnston CA] (this is the same case as Johnston, supra note 44 that had went before the House of Lords in 1911).

(59) Morrissey, supra note 57 at 352.

(60) Johnston CA, supra note 58 at 253.

(61) See Moore v Attorney General, [1934] IR 44 (Ir Sup Ct) at 68, 85 [Moore]-, Herbert Francis Hore, An Inquiry into the Legislation, Control, and Improvement of the Salmon and Sea Fisheries of Ireland (Dublin: Hodges & Smith, 1850) at 3; Fergus Kelly, A Guide to Early Irish Law (Dublin: Dublin Institute of Advanced Studies, 1988) at 101-02, 105-08.

(62) See Moore, supra note 61 at 68.

(63) See Healy, supra note 35 at 370 (though at 109 he notes that the Lough Neagh fisheries were never in the possession of any single clan); Moore, supra note 61 at 68.

(64) See "Lough Neagh" in Encyclopedia Britannica, online: <www.britannica.com /place/Lough-Neagh>; "Windermere" in Encyclopedia Britannica, online: <www.britannica.com/place/Windermere>.

(65) Bristow, supra note 44 at 650.

(66) Ibid at 650-51.

(67) Ibid at 651.

(68) Ibid at 660.

(69) Silverman, An Irish Working Class, supra note 39 at 160, 165.

(70) Supra note 44. It is not yet clear what specific circumstances prompted the question of Lough Neagh's fisheries to come back to court or why it happened in the early 1900s. For the purposes of this article, the judgments in the case are more important than the microhistory of the case itself. Suffice to say, by 1911, people had been fighting over the ownership of Lough Neagh and its related rivers for three centuries.

(71) See e.g. Silverman, An Irish Working Class, supra note 39 at 144-45; Silverman, "From Fisher to Poacher", supra note 43 at 100 (noting it was a UK-wide problem).

(72) Johnston, supra note 44 at 566, 599, 613.

(73) Ibid at 567-68, 577-79, 591.

(74) The exact meaning of Home Rule differed among the various Irish nationalist groups but the general idea was Irish responsibility for Irish affairs. The year after Johnston was heard, the Liberal government introduced the third and final Home Rule bill which eventually became the Government of Ireland Act 1914, 4 & 5 Geo 5, c 90.

(75) Johnston, supra note 44 at 553, 573-74, 581-83, 588, 599, 613.

(76) Ibid at 555-56, 565-66, 576-77, 606, 613.

(77) Ibid at 609. Macnaghten LJ said that such allegations of any document being a forgery were unfounded. See ibid at 590.

(78) Ibid at 5 53, 576, 593-95. See the House of Lord's earlier comments in Bristow, supra note 44 at 658-59 (noting the discrepancy between the two stories of title presented).

(79) Johnston, supra note 44 at 581.

(80) Ibid at 584-91.

(81) Ibid at 594.

(82) Ibid at 568 (Halsbury E), 577-78 (Macnaghten LJ), 594 (Dunedin LJ). Though Lord Ashbourne concurred in part here, he was not convinced that the respondents had shown possession of the entirety of Lough Neagh. See ibid at 577.

(83) Ibid at 571, 574. For reference to the collapse of the salmon fishery, see ibid at 583.

(84) Ibid at 590-91.

(85) John Lowerson, Sport and the English Middle Classes, 1870-1914 (Manchester, UK: Manchester University Press, 1993) at 42-43. Of course this distinction was never absolute and the real issue was who controlled access to the fisheries. Lowerson notes that in 19th-century England, the middle class sought to control the best angling grounds as angling became a popular sport. See ibid.

(86) Johnston, supra note 44 at 590-91.

(87) Ibid at 576-77.

(88) Ibid at 604. Compare Lord Macnaghten's comments. See ibid at 580.

(89) Ibid.

(90) Ibid at 590-91. See also the comments of Robson LJ ("no one would contend that the letters patent issued at this period of English history are always to be taken without question at their face value": ibid at 615).

(91) Ibid at 605.

(92) Johnston, supra note 44 at 605. See also Robson LJ in ibid at 622.

(93) Ibid at 622.

(94) Ibid at 594.

(95) Ibid at 592-93.

(96) Ibid at 568-69.

(97) See Kent McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) at 79; Nicole Graham, Lawscapes: Property, Environment, Law (New York: Routledge, 2011) at 95.

(98) See Barnes, supra note 4 at 443-44.

(99) The last case to mention the right appears to have been McKie, supra note 12 (decided in 1947). Though this case was appealed, the public right to fish was not mentioned by the higher courts. The next case to mention it is from 1982 and it appears as obiter. See Chessie v JD Irving (1982), 140 DLR (3d) 501, 42 NBR (2d) 192 (CA) [Chessie cited to DLR],

(100) Flewelling v Johnston, 16 Alta LR 409, [1921] 2 WWR 374, (SCAD) [Flewelling]; Iverson v Greater Winnipeg Water District, [1921] 57 DLR 184, 1 WWR 621 [Iverson cited to DLR].

(101) Sometimes this was done or confirmed by courts, other times by statute. For the latter, see e.g. Bed of Navigable Waters Act (1911) 1 Geo 5, c 6. For the former, see Iverson, supra note 100; Flewelling, supra note 100.

(102) Iverson, supra note 100 at 202; Keewatin Power Company v Kenora (Town of) (1906), [1907] 13 OLR 237 at 253-55, 8 OWR369.

(103) Robert J Surtees, "Indian Land Cessions in Upper Canada, 1815-1830" in Ian L Getty & Antoine S Lussier, eds, As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies (Vancouver: University of British Columbia Press, 1983) 65 at 75.

(104) See e.g. Kenny & Parenteau, supra note 5 at 191-94; Blair, "Settling the Fisheries", supra note 5 at 149.

(105) See John Borrows, "Frozen Rights in Canada: Constitutional Interpretation and the Trickster" (1997) 22:1 Am Indian L Rev 37 at 59.

(106) See Newell, supra note 5 at 67. For discussion of Ontario, see e.g. Blair, "Settling the Fisheries", supra note 5 at 103.

(107) See Harris, Fish, Law, and Colonialism, supra note 5 at 14.

(108) I say "Aboriginal" here as that is the term used by the Constitution Act, 1982.

(109) Chessie, supra note 99 at 505.

(110) Pacific Fishermen's Defence Alliance v Canada (Minister of Indian Affairs and Northern Development), [1987] 3 FC 272 at 281, 9 FTR 86.

(111) See R v Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow],

(112) For the lower court's decision, see R v Sparrow (1986), 36 DLR (4th) 246 at 255, [1987] 2 WWR 577.

(113) Mann v Canada (1 June 1990), Vancouver A881092, 1990 CarswellBC 1834 (SC) at para 2 [Mann (1990)].

(114) Mann (1990), supra note 113 at para 28.

(115) Mann v Canada (25 April 1991), Vancouver A881092, 1991 CanLII 1962 (BCSC).

(116) (1993), 80 BCLR (2d) 158, 20 WCB (2d) 297 (CA) [NTC Smokehouse BCCA cited to WCB]

(117) Ibid at para 108.

(118) Ibid at para 4.

(119) R v NTC Smokehouse, [1996] 2 SCR 672, [1996] 9 WWR 114.

(120) Gladstone, supra note 11; R v Nikal, [1996] 1 SCR 1013, [1996] 5 WWR 305 [Nikal cited to SCR]; R v Lewis, [1996] 1 SCR 921, [1996] 5 WWR 348 [Lewis cited to SCR]

(121) Gladstone, supra note 11 at 770-71.

(122) Ibid. See also John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 61.

(123) See e.g. Harris, Fish, Law, and Colonialism, supra note 5 at 57, 214; Landing Native Fisheries, supra note 5 at 106.

(124) Nikal, supra note 120 at 1046-48.

(125) Ibid at 1047-50.

(126) Ibid at 1053-54.

(127) Ibid at 1031. Though see Harris, Fish, Law, and Colonialism, supra note 5 at 9; Harris, Landing Native Fisheries, supra note 5 at 104.

(128) Nikal, supra note 120 at 1031.

(129) Nikal, supra note 120 at 1036.

(130) Lewis, supra note 120 at 951-53. See also ibid at 935 (summarizing holdings of the lower courts on this question). For the Privy Council decision, see Reference re British Columbia Fisheries, 5 WWR 878, 15 DLR 308 [BC Fisheries cited to WWR],

(131) Lewis, supra note 120 at 951-53.

(132) BC Fisheries, supra note 130 at 888.

(133) Ibid at 313-14.

(134) Lewis, supra note 120 at 939. Curiously, in their discussion of Crown policy neither Nikal nor Lewis explores whether that policy was legal. A full exploration of the legal basis for Crown policy in BC is beyond the scope of this article.

(135) British Columbia Terms of Union, 16 May 1871, Schedule term 5(d).

(136) See Blair, "No Middle Ground", supra note 5 at 572.

(137) For Ontario, see ibid. For BC, see Dorothee Schrieber, "A Liberal and Paternal Spirit": Indian Agents and Native Fisheries in Canada" (2008) 55:1 Ethnohistory 87 at 101; Harris, Fish, Law, and Colonialism, supra note 5 at 14. This appears to have been the case across Canada and was also seen in New Brunswick. See Kenny & Parenteau, supra note 5 at 191-94

(138) See Daniel J Hulsebosch, "Writs to Rights: "Navigability" and the Transformation of the Common Law in the Nineteenth Century" (2002) 23:3 Cardozo L Rev 1049 at 1072.

(139) [1898] AC 700, 78 LT 697 at 707, 710.

(140) Justice Cory noted that this point was explicitly recognized by the British Columbia Court of Appeal in Lewis. See Lewis, supra note 120 at 934.

(141) Fisheries Act, RSC 1985, c F-14; Nikal, supra note 120 at 1020; Lewis, supra note 120 at 927, 934 (noting the British Columbia Court of Appeal had stated that the real issue was legislative control).

(142) Nikal, supra note 120 at 1023.

(143) Ibid at 1032-34. See also Harris, Landing Native Fisheries, supra note 5.

(144) See Nikal, supra note 120 at 1029-37 (giving a summary of Crown policy which shows a desire to protect non-Aboriginal access).

(145) See Nikal, supra note 120 at 1029-37.

(146) Compare Graham, supra note 97 at 95, 106.

(147) Indeed, as Harris notes, many BC First Nations initially grounded their claims to the fisheries in their own laws and legal traditions. See Harris, Fish, Law, and Colonialism, supra note 5 at 7, 61-65; Landing Native Fisheries, supra note 5 at 195.

(148) See e.g. Iverson, supra note 100 at 200, 203. 2017

(149) Johnston, supra note 44 at 580-81.

(150) See Ibid at 583-90. For subsequent citations, see e.g. Halifax (City) v Dominion Atlantic Railway Co, [1947] SCR 107 at 109-10, [1947] 1 DLR 431. Johnston was also recently referenced by the British Columbia Court of Appeal. See Mowatt v British Columbia, 2016 BCCA 113 at paras 61, 77, [2016] BCJ No 474 (quoting Dominion Atlantic's reference to the same case).

(151) Johnston, supra note 44 at 568-69.

(152) Ibid it 581-82. For Robson LJ's comments, see ibid at 613-14.

(153) Ibid it 590-91.

(154) Johnston, supra note 44 at 597-98.

(155) For the origins of this divide, see Harris, Fish, Law, and Colonialism, supra note 5 at 16.

(156) See e.g. NTC Smokehouse BCCA, supra note 116 (noting that one Indigenous fisher, Agnes Sam, sold salmon to pay for "jars to can salmon and to buy little things for her grandchildren" at para 163). In Gladstone, McLachlin J (as she then was) addressed the question of sustenance and thought that "the Aboriginal right to trade in herring spawn on kelp from the Bella Bella region is limited to such trade as secures the modern equivalent of sustenance: the basics of food, clothing and housing, supplemented by a few amenities": supra note 11 at 816-17.

(157) Ibid at 747.

(158) See e.g. Ahousaht Indian Band v Canada (AG), 2011 BCCA 237 at para 18, 333 DLR (4th) 197, leave to appeal to SCC refused, 34387 (30 January 2014). Compare Chiasson J's dissent in this case, which argues that the Indigenous right to sell fish is limited to attaining the modern equivalent of sustenance. See ibid at para 75.

(159) At least for the common law, the issue of BC being unceded land should not upset any privately held title given the ratio of Johnston. This would not preclude a separate land claims process being set up which would address the loss of lands now privately owned, but such a process would require separate legislation.

(160) This was not always the case with respect to settler-Aboriginal relations, at least in North America. See Katherine Hermes, "Justice Will Be Done Us: Algonquian Demands for Reciprocity in the Courts of European Settlers" in Christopher L Tomlins & Bruce H Mann, eds, The Many Legalities of Early America (Chapel Hill, NC: UNC Press, 2001) 123 (noting that initially Aboriginal people were able to keep their own legal traditions with minimal interference from European colonizers). It was also not the case with Quebec, which successfully fought to retain its own legal system.

(161) See David H Breen, Alberta's Petroleum Industry and the Conservation Board (Edmonton: University of Alberta Press, 1993) at 4.

(162) For perhaps the seminal discussion of the continued existence of Indigenous Peoples' jurisdiction over their traditional fisheries, see Kiera L Ladner, "Up the Creek: Fishing for a New Constitutional Order" (2005) 38:4 Can J Political Science 923. See also Kenny & Parenteau, supra note 5; Walters, supra note 12; Blair, "No Middle Ground", supra note 5; Harris, Fish, Law, and Colonialism, supra note 5; Landing Native Fisheries, supra note 5.

(163) Reference re Provincial Fisheries, supra note 139 at para 22 (here Lord Herschell seemed to sanction regulation which would amount to a "practical confiscation" as it would fall under Parliamentary sovereignty).

(164) See e.g. McKie, supra note 12.

(165) Although there have been several subsequent fishing rights cases, including at least one about Lough Neagh all have followed Johnston. See e.g. Toome Eel Fishery (Northern Ireland) v Cardwell, [1963] NI92, 1963 WL 21430 (HC).

(166) See Blair, "No Middle Ground", supra note 5 at 590-91; Goodman v Saltash (1882), 7 App Cas 633.

(167) "Granted" is in inverted commas as parts of Canada, such as most of BC, are on unceded territory.

(168) For more on this, see John Borrows, "Frozen Rights in Canada: Constitutional Interpretation and the Trickster" (1997) 22:1 Am Indian L Rev 37.

SARAH E. HAMILL, Lecturer, The City Law School, City, University of London. I would like to thank audiences at the 2015 Canadian Law and Society Mid-Winter Meeting and the 2016 Historical Materialism Conference for helpful comments on previous versions of this article. I would also like to thank the librarians at Osgoode Hall Law School for their help in tracking down some of the more obscure sources. Thanks are also owed to two anonymous peer reviewers for their helpful comments.
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