Native Fishing Rights and Environmental Protection in North America and New Zealand: A Comparative Analysis of Profits a Prendre and Habitat Servitudes

Abstract

This article examines the legal rights of native peoples in the United States, Canada, and New Zealand to protect and maintain traditional fishing cultures and economies. The article maintains that native fishing rights are real property interests - profits a prendre - which have received significant judicial recognition and protection in the three countries.

Although the native right to fish has evolved separately in the three jurisdictions, each country not only recognizes that the native fishing right includes an allocated harvest share but also there is increasing recognition of habitat protection necessary to maintain the fisheries. In the U.S., judicial enforcement of 19th century treaty promises, particularly in the Pacific Northwest, has been central. In Canada, courts have been interpreting a relatively recent constitutional guarantee recognizing and protecting aboriginal and treaty rights. In New Zealand, legislation establishing an advisory tribunal, to which the courts have deferred, has been crucial.

The article contends that underlying all three nations' belated recognition of the nature and scope of native fishing rights is the common law nature of the right, springing from time immemorial use, not from government recognition.

Keywords: Indigenous peoples law, property law, legal history, environmental law, Canadian law

JEL Classification: H82, K12, K32, , N51, N52, N57, Q22, Q28