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FOPO Committee Meeting

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[Recorded by Electronic Apparatus]

Thursday, November 25, 1999

• 0900


The Chair (Mr. Wayne Easter (Malpeque, Lib.)): I call the meeting to order.

As is well known, but for the record, we are studying the implications of the September 17, 1999, Supreme Court decision R. v. Marshall on the management of fisheries in the Atlantic region.

I might point out that the first witness, the Eastern Fishermen's Federation, has cancelled due to a storm. They are from Grand Manan, so I assume it's due to windy weather on the water more than likely. Our third witness, the New Brunswick Aboriginal Peoples Council, is here and they will begin the morning session.

Welcome, Betty Ann LaVallée and Philip Fraser. The floor is yours.

Ms. Betty Ann LaVallée (President, New Brunswick Aboriginal Peoples Council): Good morning, gentlemen. On behalf of all the members in the constituency and the board of directors and executive of the New Brunswick Aboriginal Peoples Council, I would like to take this opportunity to welcome all the members and the staff of the Standing Committee on Fisheries and Oceans to Moncton and New Brunswick and to traditional unceded Mi'kmaq land.

• 0905

I would like to open up by reading a paragraph from a book our organization published back in the early 1980s that started the comprehensive land claims in New Brunswick:

    His Excellency Peregrine Thomas Hobson Esquire Captain General and Governor in Chief in and over His Majesty's Province of Nova Scotia or Acadie Vice-Admiral of the same & Colonel of one of His Majesty's Regiments of Foot, and His Majesty's Council on behalf of His Majesty, and Major Jean Baptiste Cope Chief Sachem of the Tribe of Mick Mack Indians, inhabiting the Eastern Coast of the said Province, and Andrew Hadley Martin, Gabriel Martin and Francis Jeremiah members and Delegates of the said Tribe, for themselves and their said Tribe their heirs and the heirs of their heirs forever. Begun made and concluded in the manner form & Tenor following, viz.

And that's where they go into the treaty in articles of peace and friendship renewed 1752.

Gentlemen, Major Jean Baptiste Cope, chief sachem of this tribe of Mi'kmaq, was my great, great, great grandfather. I am a registered Indian who lives off reserve. I am a natural heir and descendant, contrary to some people's modern manifestation of who the traditional tribes are today.

Our organization was established back in 1972 to address the needs of the off-reserve non-status Indians at the time. Those were people like myself, my father, and my grandfather, who were put off the reserve for the simple fact that we all joined the military. We lived up to our treaty obligations and said we would serve the crown and protect this country from forces that would try to overrun us or destroy us. My family kept up its end of the treaty. My son is now the fourth generation of continuous military service. He is serving in Petawawa with the Canadian Airborne, throwing himself out of perfectly good aircraft—well, maybe not so perfectly good any more, but throwing himself out of aircraft. My family has lived up to its treaty.

For the Minister of Fisheries and Oceans to stand up and publicly deny that I am entitled, as a beneficiary, or a natural heir and descendant to a signatory of the treaty, to access my God-given right or my blood right is total foolishness.

NBAPC was established to address the political, economic, and social and cultural needs of the off-reserve aboriginal people. Even though we were forced off the reserves, and some of us choose not to live on the reserves, we choose to live on our traditional land. We did not buy into the Indian Act and it was at great cost to ourselves. Because we stood our ground and we stayed in our natural and traditional areas and continued with our traditional ways of life, we were stripped of the right to be called Indians under the laws of Canada. We were treated as second-class citizens. We were denied the vote in this province until 1966. We were denied the right to be called people.

The 1985 changes to the Indian Act brought changes to NBAPC and expanded its membership to include off-reserve status Indians. That is what I am; I am an off-reserve status Indian. However, under current federal legislation my son is still not entitled to be registered under the Indian Act. Even though my brother's children would be, my son is not. The Corbière decision was very clear in May, when it was brought down, that those of us who reside off reserve, especially the women and the children among us, are doubly discriminated against. We are denied what is rightfully ours. The chiefs cannot, on our behalf, speak or enter into any agreements or make any deals until that situation is resolved, until we have taken our rightful place.

For people who are not real aboriginals, people in my organization, NBAPC, have played key roles. We had a place at the constitutional caucus of the 1980s and we also held a seat at the Charlottetown Accord. My organization was part and parcel of having Métis, Indians, and Inuit entrenched in section 35 of the Constitution. It's not bad for non-aboriginals.

• 0910

Since that time, NBAPC has offered a variety of programs and services to off-reserve people, including housing, human resource development, fisheries, summer student employment, and youth employment strategy programs, to name but a few. More importantly, as I said previously, we are partners and beneficiaries to the comprehensive land claim that is currently ongoing in the province of New Brunswick.

In the clarification of the Supreme Court in regard to Donald Marshall, November 17, 1999, the court substantiated our position that we are the beneficiaries of our own treaties. Off-reserve Mi'kmaq, Maliseet, and Passamaquoddy treaty descendants still live in their traditional areas, unlike displaced areas called reserves, which are not a modern reality of our tribe or traditional territories. This is affirmed by section 17 of the clarification, and further supported by the Corbière decision of May 1999.

We have our own management regime. It's called TIMBER. We as a community of interests, and as a community of off-reserve Mi'kmaq, Maliseet, and Passamaquoddy descendants, we are exercising our treaty rights within our traditional territories. The establishment of a management authority is in keeping with the Supreme Court of Canada's decision.

We have not been opposed to negotiations, as the courts have consistently stated in their decisions. However, we cannot allow governments to abrogate or derogate from the fiduciary responsibility to all aboriginal people, including our people, who should be first priority, as we are the ones living in our traditional territories.

Minister Dhaliwal, Minister Nault, Minister Goodale, and Mr. MacAulay, and by extension, the federal and provincial governments, are all shirking their fiduciary responsibily for our people. By denying our people their treaty and constitutionally protected rights, as affirmed by the Supreme Court of Canada, nation-building will never be realized. There must be a reconstitution of our original nations. This is crucial, not only for the Mi'kmaq and Maliseet people, but for Canadians as well. Only then will we be able to deal with long-term solutions to our problems and issues and address real and long-term relationships with Canadians.

Without our nations being reconstituted, the poverty and second-class citizenship that aboriginal people face in Canada will continue. More specifically, off-reserve Mi'kmaq and Maliseet treaty descendants will continue to be treated as second-class and third-class citizens within the aboriginal world by Indian Act chiefs, councils, and governments.

Various general human rights reports over the past 12 to 15 years called upon government to stop treating off-reserve aboriginal people like a hot potato. If the governments don't start treating the issues faced by off-reserve Indian people, they will become a permanent underclass from which they will never recover. Is that the legacy you want to leave for your future generations to deal with? That is not a legacy I want to leave for my future generations to deal with.

Thank you.

The Chair: Thank you.

Who wants to start? Mr. Bernier.


Mr. Yvan Bernier (Bonaventure—Îles-de-la-Madeleine—Pabok, BQ): First, I have a very simple question, Mr. Chairman. I had problems with the earphones at the beginning of the meeting. I missed the first part of the debate and I would have needed it to understand the rest.

At this point, I am totally lost. We're talking about Aboriginals on reserves. We're talking about Aboriginals off-reserve. We're also talking about non-status Aboriginals. I think that's what the lady was talking about while I was fighting with my earphones. I'd like to know who these non-status Aboriginals are. Are these people who descend from Aboriginals and whose status is not recognized either by the band or by the government?

• 0915

When you say you're a descendent of an Aboriginal, do you know to what nation or band you belong? I'd like you to give me a brief explanation so I can follow the rest of the debate. I'm trying to find out what's going on here. Mr. Marshall, of Marshall decision fame, was a status Aboriginal but off-reserve. Could you explain that to me and what non-status means?


Ms. Betty Ann LaVallée: You're quite correct. Mr. Marshall is a status Indian. He's registered under current federation, the law under the Indian Act. But he did not reside on reserve.

Mr. Marshall is like me. He resides off reserve. This was a case against an individual like me who lives off reserve and who was charged for fishing eel and was found not guilty. So if you go with Mr. Dhaliwal's definition of the aboriginal peoples who are entitled to benefit from the treaty or the decision, then that excludes Mr. Marshall, because Mr. Marshall lives off reserve.

It was not the band and the reserves that were in the courts. It was an individual Mi'kmaq man who lived off reserve. I live off reserve. Does that mean then Mr. Marshall is guilty? You can't have it both ways.


Mr. Yvan Bernier: I'm getting a better grasp of it. In the Gaspé, where we'll be winding up our trip, there are three Mi'kmak bands and two of them are on the reserve and one of them, the Gaspé one, has no specific territory. When I walk around there, I don't know where they are, they're all friends but I didn't know they were Aboriginal.

What I still don't understand is what defines non-status Aboriginals. That probably means that they are off-reserve, but why do we say that they're non-status? I don't understand that. So we have three categories of Aboriginals we have to take into account. How do non-status become status? And how are you going to deal with them to set aside part of the resource? Maybe it's complicated on the federal government's side, but it's complicated on yours too and I'm trying to understand.


Ms. Betty Ann LaVallée: Well, for the simple fact that he probably cannot get status, because he would not meet the criteria as laid out in the Indian Act.

I'm a registered Indian, but my son is not entitled to be registered under the current law. I'm classified as a section 6(2) Indian. Basically, how they rate us is like cattle. My grandfather was grade A, my father was grade B, I'm grade C, and my son is not fit to be sold. That's the only way I can put it. We are rated. They judge us like grades of beef.

In any other society in Canada.... Say you were married to an anglophone wife and you had children. What if I said to you, “Your children aren't francophones; they're English”? They're your children. How were they raised? Did you raise your children in the French language? Do you consider them francophones? Thank you.

It's the same with Jewish people and the same with Irish people. We are still the only classification of citizenship in this country that is told who we can be and who we cannot be and are legislated by law. I have real difficulty, as an Indian woman of the Mi'kmaq tribe, with someone telling me the son I bore and went through 18 hours of labour with is not an Indian person. I'd like to see them do it to anybody else.

The Chair: Mr. Bernier.


Mr. Yvan Bernier: I find those classifications astonishing. As clarifications go, that will be enough for this morning. However, Mr. Chairman, when we write our report, I'd like us to have the classification available as well as how it's established unless we have time to have some people from Indian Affairs come before us. Anyway, I'd like some clarification on all that.

• 0920


The Chair: Yvan, I think we could get someone from the Library of Parliament to provide some documentation on that. We will request that. We may have to ask people such as Ms. LaVallée for clarification on it at some point in time, but we'll ask that it be done.

Do you have any further questions?


Mr. Yvan Bernier: It's okay for now.


The Chair: Mr. Cummins.

Mr. John Cummins (Delta—South Richmond, Ref.): Thank you very much, Mr. Chairman.

I'd like to thank Ms. LaVallée for the presentation this morning.

Further to the question of status and non-status, in your interpretation of things, is it possible that a non-status native living on the reserve would be covered then by the Marshall decision?

Ms. Betty Ann LaVallée: No, they wouldn't.

Mr. John Cummins: So what the government is saying is it's strictly status Indians residing on a reserve.

Ms. Betty Ann LaVallée: Yes, and the funny part of it is you have status Indians residing on reserves who do not have one ounce of Indian blood. They are women like my mother, who through marriage would have gained status. You have status Indians on reserves who are the children of these white women, and if the aboriginal men they married happened to adopt these children, they would be entitled to go out and harvest. Whereas you have people like me and my children and Philip's children, who actually have Indian blood, are of Indian ancestry, but the government, DFO, is saying we are not entitled. So it's sort of contradictory or hypocritical.

Mr. John Cummins: How is it that some people lost status? Was it simply at one point moving off the reserve?

Ms. Betty Ann LaVallée: No. In my family, what happened was my grandfather was brought up in the Shubenacadie residential school. As soon as he was able to escape that situation, he went to Saint John, which was one of the traditional areas of the Mi'kmaq people, and he stayed there. Then when the war came along, he joined the military.

Back then, if you were deemed to be educated, if you were an aboriginal person who had graduated high school, joined the military, and become a member of a profession, whether it be teacher or whatever, you were deemed not to be any longer savage, and therefore you could no longer be called an Indian and you could no longer live on reserve.

If you were a woman and you married a non-aboriginal man, you were no longer deemed to be aboriginal, and therefore you were thrown off the reserve; you weren't allowed to be there any more.

Mr. Philip Fraser (Coordinator, New Brunswick Aboriginal Peoples Council): You could also pick a reference at any point in history and see what the definitions in the Indian Act were at that particular point in time. Since 1869 the Indian Act has been constantly under change, and the definitions have constantly changed as well. So it's not even based on a particular race. It's just something picked out of midair. Tomorrow, Parliament can change the Indian Act and the definition again.

Ms. Betty Ann LaVallée: That's right. Tomorrow the Minister of Indian Affairs could walk into this room and say, “Okay, for the purpose of the Indian Act, everybody sitting around this table is now an Indian.” That's reality.

Mr. John Cummins: It's part of a bigger question that may be straying from the Marshall business, but perhaps the chairman will allow me to pursue the question.

The Chair: Go ahead.

Mr. John Cummins: It seems to me one of the problems with the treaty process under way in my own province of British Columbia now is it fails to recognize the fact that many reserves are situated in areas where there's little or no economic activity or opportunity for the residents. By trying to embellish, if you will—and maybe that's not a very good word—reserve living, in fact what you're doing is encouraging people to stay on the reserve and stay dependent.

A large number, perhaps the majority, of natives now are leaving the reserves and seeking economic opportunities elsewhere, but the government seems to be ignoring that particular issue. The help is not there to assist them in integration and so on.

• 0925

It almost seems as if this Marshall decision, or the interpretation of it, by restricting it to status Indians living on reserve, is in fact doing the same thing. It is saying if you have gone to where the jobs are—and you may have to move to where the job is if you buy a licence from an area where the government purchases licences as a buyback—and that is not an area where a status Indian resides, and that Indian says if I want to utilize that licence I should be living over here because it's more convenient, the government is almost saying no, you can't do that; you have to stay on the reserve because this is where we want you. I don't think that is the intent of the government, but that is the impact, the reality of the decision.

Ms. Betty Ann LaVallée: That's right. Every other Canadian citizen in Canada has the right to move freely throughout Canada and still have access to social programs. It doesn't matter whether you move from New Brunswick to Ontario to British Columbia, you still, as a citizen, have the right to draw unemployment insurance, you still have the right to draw social services, if required, and you still have the right to medicare services, if required. However, as an aboriginal person, if I don't live on reserve, then I lose the right to access programs and benefits that the chief and council receive on my behalf. I lose the right to benefit.

A prime example was when I left the military. I had a big pension. I ended up having to take back my pension because I didn't quite have 20 years. I basically got told by the department of revenue that if I had gone back to the reserve, left my husband, they wouldn't have touched my pension. But because I chose not to, I chose to stay with my family, to seek opportunities and to do the job I am doing today, I lost over two-thirds of my pension in taxes.

The Chair: If I might ask, where did it go?

Ms. Betty Ann LaVallée: Back to the federal government.

Mr. Philip Fraser: The other thing is that your own Human Rights Commission, for the last 10 or 12 years, has tried to address the issue of off-reserve Indians. The last comment that Betty Ann made, that if this government does not start dealing with the off-reserve people soon, they will soon become a permanent underclass—those are Max Yalden's, your human rights commissioner's, own words in his report of about 1989-1990. If you look at the reports since then, they have been telling government to stop burying their heads in the sand and start dealing with these issues.

You are right. The government is ignoring the fact that, particularly in western Canada, large numbers are leaving the reserve. Here there is still somewhat of an affinity with the reserve, but the numbers are still the same. They are gravitating toward urban areas.

To say that your rights are limited, that you have rights provided you live here, but once you cross that line and live over here, you have no rights—the only other system that had that sort of thing in place was South Africa, and it was shot down over there. That is the difference in what we are dealing with here.

How can our rights be any different? If the reserve boundary is here, and we live here, it ceases to exist? Most of the access to resources is outside the reserve boundaries. The game does not know the boundaries, nor do any other species involved.

Mr. John Cummins: And that's not where the jobs are. Many of these reserves simply are in areas where there is very little or no economic activity. You have to leave if you want to—

Ms. Betty Ann LaVallée: How can they? They have no collateral.

Mr. John Cummins: Yes, that's right. That is the issue that's being denied in this decision, and that is the issue that's being denied in the treaty process in western Canada.

Mr. Philip Fraser: Even with the great lengths the Supreme Court took to clarify the Marshall ruling, nowhere did it substantiate the position of chiefs, and nowhere did it substantiate the positions of the direct-line ministers on this modern manifestation. It still talks about the peoples.

Peoples are the nation, not the municipal structures they would like you to believe are nations, because they are not. The nation is all of the Mi'kmaq peoples, all of the Maliseet peoples, all of the Passamaquoddy peoples, who are both registered and non-registered, living on and off reserve. Those are the nations.

The Chair: If I could interject for a minute, Philip, Bernd Christmas, when he was before the committee on October 28—and the question was from Stoffer, actually, on whether the Marshall decision applied to non-status aboriginal people—gave this answer, and I would like your comments on this, either Betty Ann or Philip. This is what Bernd Christmas said on the record:

    The view of the chiefs in Nova Scotia is that it

—meaning the Marshall decision—

    does not apply to what they call non-status natives. However, the chiefs feel it is up to the Mi'kmaq people to establish who is the beneficiary of that treaty right.

• 0930

Then he goes on to say they will undertake to do that task. What's your view on that?

Ms. Betty Ann LaVallée: Mr. Christmas is not a representative, number one. He is a paid spokesperson. The chiefs have always maintained that. That is why we have the Corbière decision. They have always maintained they are the legal ruling parties for all aboriginal peoples and Corbière has clarified that for us. Corbière has clearly stated that the chiefs can only govern those within the walls of the reserve system and the people who live in that system. They cannot speak on my behalf, or on Phil's behalf, until they deal with the voting issue, and that's not going to be dealt with until next November. So they cannot sign agreements or anything on our behalf, or negotiate on our behalf. We have to be at the table.

As for the nation deciding who their people are, I totally agree. The nation will do it, not the chiefs.

Mr. Philip Fraser: The other thing, too, is that people do not realize that the chiefs have been funded for the last number of years for treaty entitlement, and if they have made their decision, then why will they be looked at with large blocks of money to be funded again further, to discuss treaty entitlement?

If it is a case of the Mi'kmaq people making the decision, then let's have a vote so the Mi'kmaq people do make the decision, not a select few. That's the problem we're dealing with.

The Chair: Mr. Steckle.

Mr. Paul Steckle (Huron—Bruce, Lib.): Mr. Chair, I would like to ask a few questions.

I found this very interesting, because even though I have no traditional native groups within my particular riding boundaries in Ontario, I have groups right on the edge of my riding. Those decisions that are made from time to time impact on what goes on, particularly in the freshwater fishery, within my riding. So I have a basic knowledge.

I want to extend the question a little further. We talked in terms of genealogy this morning. You also spoke early in your presentation about the rightful place of the native peoples. Would you perhaps expand a little on that, what you meant by that? I have questions regarding that as we go along.

Ms. Betty Ann LaVallée: Do you mean the rightful place of native people within Canada?

Mr. Paul Steckle: You spoke about the rightful place—within Canada, I suppose, within those parameters, but perhaps more specifically within a provincial context, or within a community context.

Given there are those who are off reserve, there are non-status, there are status native people, when and how do we continue this discussion? Will this discussion go on for another two hundred years? I am trying to be kind when I approach this issue because—

Ms Betty Ann LaVallée: There is no way to be kind on an issue like this, because it is pure unadulterated discrimination.

I am a third-class citizen within my own country, which I find totally wrong. The only way to deal with this is that the Indian Act must be changed. The Indian Act has to be changed so that it's the nation that decides who their citizenship is, and in order to do that you have to reconstitute the nation. There has to be a place at the table for people like myself, my son, and my grandchildren yet unborn. They will also be my natural heirs and descendants.

I have an obligation to my nation. I am the seventh generation. When these treaties were signed they were designed to protect the next seven generations. It is now my moral obligation to my people to protect the next seven generations. That is why I find it ironic that I went from the field of military all of a sudden to being a political leader. It was something I never dreamt of, but obviously I believe in fate. I was put here for a reason, and my reason—the only thing I can fathom—is that I was put here to protect my son and my grandchildren and those who will come.

The Department of Indian Affairs has to start dealing with us. It can no longer ignore us. Now they have us under the minister responsible for interlocutor and off-reserve Indians, who has no—

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Mr. Goodale.

Ms. Betty Ann LaVallée: Mr. Goodale, that's right. He has no moneys and no budget. He is supposed to be a lobbyist. But Mr. Goodale is also the Minister of Natural Resources and the Minister responsible for the Canadian Wheat Board. Does he have the time and the dollars in the budget to sit down and work with us on this? I don't think so.

• 0935

Mr. Paul Steckle: Which groups of native people, those on reserve or those off reserve, are better off financially and in terms of their ability to address their rightful places in this nation?

Ms. Betty Ann LaVallée: Neither.

Mr. Paul Steckle: Why do some choose then to go off reserve?

Ms. Betty Ann LaVallée: Some choose to leave the reserves for the simple fact of the economic and social conditions. If you pick up a newspaper in New Brunswick, you will see there have been a lot of suicides, mostly of youth. That's because of the drug problem. There's no hope there. There's no economic basis for them to live.

That's why there was such an uproar here in New Brunswick when the TIMBER decision came down on logging. For the first time in centuries, aboriginal peoples didn't have to wait for handouts. We could go out and harvest a resource. We could actually walk into a store and buy that toy for our child or that pair of sneakers all the other children in the school system were wearing. We were independent.

The episodes of violence, spousal abuse, drug abuse and alcohol abuse significantly went down.

Mr. Paul Steckle: Are you saying the ability to integrate into the broader society has benefited the native people?

Ms. Betty Ann LaVallée: I'm saying it is for people like myself, but it has cost me.

Mr. Paul Steckle: What is that cost? You're talking about nationhood, and perhaps I'm not understanding what you mean by nationhood. We are here as a Canadian government representing—

Ms. Betty Ann LaVallée: A nation is the collective of all the people. That means the Maliseet Nation is a collection of all the Maliseet peoples, regardless of where they reside—not the reserves.

Mr. Paul Steckle: Is that not true of all Canadians—we are Canadians, regardless of where we reside or where we've come from?

Ms. Betty Ann LaVallée: That's right.

Mr. Paul Steckle: When a non-native person marries a native person, obviously there's a love for one another. It's not as though we despise each other. We find commonality in that area. Why shouldn't we find commonality in a lot of other areas?

I'm looking from the outside at what has happened to people on reserves. We've kept those people there. We've put a wall around them and thrown them crumbs. That has not been good for those people.

Ms. Betty Ann LaVallée: That's right.

Mr. Paul Steckle: I'd like to find a better way of—for lack of a better word—integration.

Ms. Betty Ann LaVallée: But it hasn't been good for people like me either. Because of the simple fact that I chose to honour the treaty my great, great, great grandfather, Major Jean-Baptiste Cope, signed, I lost the right to be called an Indian. Because I married a francophone, I lost the right to be called an Indian. My son also lost the right to be called an Indian. Is that fair?

Mr. Paul Steckle: Well, I don't know. In your eyes, it's obviously not. But all of us bring to this table a heritage.

Ms. Betty Ann LaVallée: I also live in a province right now that nobody has shown me a bill of sale for. This is still my land. This is unceded land. It was never bought; we've never been compensated. We were herded onto reserves. It wasn't so we would survive; that wasn't what those reserves were designed for. Those reserves were designed to kill us. That was the whole idea, if you go back and look at the historical surroundings of reserves. They were designed to kill and assimilate us or integrate us. At what cost has that happened to my people?

Mr. Paul Steckle: Do you not agree, though, that we need to move forward in some way? We can't go back and undo.

Ms. Betty Ann LaVallée: You're right, we can't undo. We have to go forward and find accommodation for people like myself, so I will no longer have to go around hanging my head in shame and fighting against my own brothers and sisters on reserve for the right to be called aboriginal, or the right to benefit from something that rightfully belongs to me.

Mr. Paul Steckle: Is the Nisga'a Final Agreement the direction we ought to be going in with native peoples?

Ms. Betty Ann LaVallée: If the Nisga'a people have decided that is what is best for the Nisga'a people, I have no problem with it, as long as all the Nisga'a people who are beneficiaries of the descendants of the treaties that might have been negotiated there are part and parcel of the decision-making.

I'm saying I have a right, as an aboriginal person, to make a choice for myself. Nobody else has the right to determine who I am, how I'm going to live, or what I should be or not be.

You have the freedom to choose where you live and still have your basic human rights respected. As an aboriginal woman of the Mi'kmaq tribe and nation, I have a right to choose what governance system best represents my situation. I have a right to choose where I determine to live, under what rules I want to live, and what rules I want to access or exercise my aboriginal and treaty rights that were guaranteed in section 35 of the Constitution of Canada.

The Chair: Mr. Stoffer. I would like to try to pull this back more directly to the Marshall decision, if that's possible.

Mr. Peter Stoffer: As you know, I've asked the status question ad nauseam, and I don't have to do that now. I think we've had clarification on where Betty Ann and Philip come from.

I want to change to a different tack, in terms of the resources. We've heard evidence from some people indicating that aboriginal people didn't access certain resources in certain periods of time. I couldn't help but notice you had that book, so I'm going to ask you to flip through that little book.

I know it's a set-up question, but I've had the indication that when the Europeans came here, the aboriginal people were accessing resources offshore, maybe not 200 miles offshore, but I don't think there was a certain mileage. I think they just followed wherever the fish went—tuna, swordfish—or whales, and brought them back.

We've heard evidence, especially from the corporate sector, that they would prefer the Marshall decision stay within the three-mile limit, and anything past that would not apply—so Philip, get at it.

Mr. Philip Fraser: This is an interesting book—

Mr. Peter Stoffer: I didn't say that word.

Mr. Philip Fraser: These are written by non-aboriginal scholars and writers from various places. I'm going to use their arguments, and if people want to read it, the name of the book is How Deep is the Ocean. The first chapter in particular makes a lot of references to aboriginal peoples in and around the Maritimes, from Newfoundland all the way down through Cape Breton, present-day New Brunswick, and so forth.

There is a particular site that goes back several thousand years, where it shows our people harvesting, using various shellfish, based on the evidence they have found. There is evidence at one point that our people harvested lobster 300 to 500 years ago. So we have a long history.

There's also evidence of our people being out on the Grand Banks fishing. European fleets made depictions of our people on the Grand Banks fishing as well.

We have a history of use of the marine resources, whether it be in-shore, mid-shore, or in the deeper waters—and it didn't extend. That's why the boats of the Mi'kmaq people were made for ocean-going travel—to sustain the waters that would have to be met throughout different periods of history.

A gentleman told me he was in Egypt at one point, and they had found an old rotted canoe on the shores. It's in a museum there somewhere. He just happened to walk into this museum and saw the canoe in a glass-encased display. When he read about it, he was surprised. It was a Mi'kmaq canoe. We were the only ones with high gunwales on our canoes.

How the canoe got there is a matter of speculation, but I suspect our people were no different from Europeans. We explored. If you look at the land mass connections to Newfoundland from Cape Breton, there is history of our people travelling overnight to Newfoundland, using the southern shore of Newfoundland. If you stay along those waters, you are not far from the southern part of Greenland and over to the warmer waters of Europe.

There is a history of our people travelling beyond the riverbanks and shores in our neck of woods, in our traditional territories. So there's a lot of evidence there. I would suggest people may want to look at that. For those who argue we didn't have resources, we had traditional names for those resources, as well.

• 0945

Mr. Charlie Power (St. John's West, PC): Obviously there are a large number of questions Betty Ann has brought up. I want you to explain briefly, so I can understand this a little better, how your children are treated differently from your brother's children. I find it absurd that because you happen to be female in this country you are prejudiced against, Indian Act or not. How does that happen?

Ms. Betty Ann LaVallée: It causes family divisions, believe me. My brother's children can get funding to play hockey and things like that, but I can't afford to put my own child—

Mr. Charlie Power: Is that because he's on reserve and you're not?

Ms. Betty Ann LaVallée: No. He lives off reserve.

Mr. Charlie Power: So both of you live off reserve and came from the same parents, but your children are treated differently from his.

Ms. Betty Ann LaVallée: That's right. His children are called aboriginal and are defined under the Indian Act as being aboriginal. My son's not entitled to.... My brother's also married to a white woman.

Mr. Charlie Power: Is that the fault of the Mi'kmaq culture and being dominated by males and chiefs in the old days?

Mr. Philip Fraser: The Mi'kmaq culture was never dominated by males.

Ms. Betty Ann LaVallée: That's right. Mi'kmaq culture was matrilinear. The women were the leaders in our culture.

Mr. Philip Fraser: The clan mothers made the decisions on who the leaders would be, and only they decided when the leaders had to go.

Ms. Betty Ann LaVallée: That's right. We had our own traditions when we had people of non-aboriginal persuasion—the earlier francophones and anglophones from France and England. A lot of Europeans came to this country and took aboriginal wives in order access the fur trade, the resources, for the British and the French crowns. They became part and parcel of the aboriginal community. They walked the walk and talked the talk of the aboriginal community.

Mr. Philip Fraser: The Indian Act structures of today are not the Mi'kmaq Nation's systems of governance.

Mr. Charlie Power: Maybe we can chat about this afterwards, so I can get an understanding of how it happened.

Ms. Betty Ann LaVallée: There were only two patrilineal tribes in North America, or Turtle Island, and they were the Apache and I believe the Sioux.

Mr. Charlie Power: Let's get back to the Marshall thing, first of all.

One of the great problems we as the fisheries committee have with this—and our presentations yesterday in Nova Scotia brought it out—is if the Marshall decision opens up the resources, with all of the fisheries resources we are talking about, whether it be lobster, crab, cod or whatever, there is only so much of that resource there. Most of it is fully utilized now, and most fishermen, certainly in Newfoundland, would say there is not enough of the resource to satisfy the number of people who are now trying to make a living from that resource.

How many people do you represent, and how many people do you think will want to get into the fishing business? Where is the resource going to come from to allow these people, if they're going to get into the fishing business, to make a decent living for themselves?

Ms. Betty Ann LaVallée: We represent approximately 7,500 off reserve in New Brunswick. Is everybody going to want to go out and fish lobster? No. It's dirty, hard work. I earn a moderate living. I have no desire to fish at this point; I don't need to fish.

We have a management plan drawn up, based on the Marshall decision. It's called TIMBER and outlines treaty entitlement benefits. We have four guiding principles that Phil can elaborate on, since he will be co-managing the whole thing. We have been operating under regulations and guidelines, through our aboriginal fishing strategy, for approximately seven years.

Mr. Charlie Power: Where does the resource come from? If you have 7,500 people and 10% want to go fishing, you're talking about 750 people who will now want to fish lobster. Where does the extra resource come from?

Mr. Philip Fraser: There's no quota at this point on lobster. Nobody knows what the biomass of the lobster is. If we look at some districts, there have been continual high records of lobster being taken. The fishermen say we don't need regulations, the resource exists.

Mr. Charlie Power: But there's a limit to the resource.

Mr. Philip Fraser: There's also the replacement tag policy. Depending on which quarters of the fishery you talk to, if you lose ten tags DFO has a policy of replacing not just the tags that are lost but the complete set all over again.

• 0950

Whether you can get groups to come to this table and admit it or not, there are people within or outside the fishery who admit that there are more traps in the water than what are given credit for.

There alone you talk about an excess of resource being taken. There are ways of doing that. I've heard the government talk about a buyout program. But the question is, where have those licences been for the last six, eight, or ten years that they have been buying licences? The licences that were bought under the package that was bought for us last year are subject to the whims of DFO, of whether they want to enter a food fishery or not.

Therefore, what is the ATP program really created for? Is it a retirement package for fishermen, or is it intended to get aboriginal people into the fishery? This year, if DFO wants to create some issues and not enter into an agreement, they don't issue the commercial licences. What happens to that licence? I thought that was bought to retire, to move over. The licence does not move completely with it, because it is the policy of DFO at this point in time.

We are subject to every season going around. We had the same thing last year. We had a food fishery in place; we were supposed to get a commercial licence for area 23. Issues were created at the last minute to prevent the issuance of a licence until a month into the season. We lost out. We incurred costs because of that.

We also got onto the wharf this year, finally getting a licence in area 25. We were subjected to harassment. We were told to get off the wharf. We were told we weren't wanted there. But we stuck it through. And that's by the same groups who claim to have a benevolent interest in aboriginal people getting into the fishery. It doesn't matter what we want. The issue is not finding accommodation.

There are some groups that just don't want accommodation. We have always been prepared to negotiate. We have always been prepared to cooperate with groups. That's what we are looking at in relation to the fishery—finding accommodation. But there has to be a two-way street. It can't be one way.

The Chair: Thank you, Mr. Fraser.

For the committee's information, the management plan that Betty Ann talked about is in the package. It's there for your information.

Thank you, Ms. LaVallée and Mr. Fraser. We have to move on to the next witness. Thank you very much.

Betty Ann, I have one question. At the risk of embarrassing myself, what does the CD that is after your name and on the paper stand for?

Ms. Betty Ann LaVallée: Canadian Declaration.

The Chair: Thank you.

Mr. Bell, welcome, sir. I believe you have handed out a paper. It is hard to hear in this room without the earphones on, but could you highlight your paper as briefly as possible, so that we have time for questions? We have about a half hour.

Mr. David Bell (Individual Presentation): Thank you, Mr. Chair, for the courtesy of inviting a legal historian to appear before a fisheries committee.

I appreciate that the committee's interest is the future, and I will direct my remarks as far as possible to the future.

My theme is that opinion leaders such as yourself must preach the gospel of comprehensive negotiation as the only acceptable alternative to this continuing striptease of litigation through the courts. I thank the committee and its staff for coming here to provide this constructive forum about the future.

My prepared presentation is brief. For a second time in as many decades, the name Donald Marshall has entered public consciousness. For a second time, Donald Marshall's personal travails with the legal system have become a sort of lens through which Maritimers are forced to confront unhappy episodes from our past that seem to have startling implications for the future.

• 0955

It is troubling for the beneficiaries of aboriginal dispossession to contemplate that injustice. But if after Marshall we continue to ignore aboriginal dispossession and aboriginal entitlement, we do so at our peril.

The very idea that treaties dating back to the 1760s can suddenly transform access to resources in the 21st century is a startling one. Nothing prepared the public for the Marshall decision. Silence on the part of opinion leaders allowed Maritimers to suppose that issues of aboriginal entitlement were confined to distant places like British Columbia, or would and should just go away, as the crisis in the New Brunswick woods triggered a couple of a years ago by the Peter Paul case seemed to go away.

The first message of Marshall is that those days when the dominant culture thought it could postpone indefinitely discussing aboriginal entitlement are gone.

The Supreme Court's Marshall decision is a fact. Those puzzled by how what the treaty in question expresses as a restriction could be transformed by the court into a right should note that such a line of reasoning was embraced to some degree by all seven judges of the Supreme Court of Canada and also by the trial judge in Nova Scotia.

I offer the committee three observations arising from my own general study of the 18th century maritime treaties, which I am in the process of editing comprehensively.

Of course, everyone wants to know what happens next. Where do we go from here? But as Marshall illustrates, where we go in the future may be determined—to a surprising extent, to a startling extent, to a disconcerting extent—by what happened in the fairly distant past.

The 1761 treaty considered in Marshall is just one of a number of 18th century ghosts that will now be brought before the courts and tested for legal life.

My three observations are as follows. There is no magic treaty. When people understand that I am researching and drawing together these treaties, essentially for the first time, they always ask whether there will yet be discovered in some dusty archival corner a treaty that deals comprehensively with the issues before us today.

People always seem to hope that there will yet be discovered a treaty in which Maritime Amerindians really did sign away all of their rights. The answer to that is clear. There is no magic treaty that will make all of our present-day concerns go away. Had there been a treaty by which Maritime Amerindians signed away their rights, we would not have forgotten it. We would not have lost it.

The second observation is that treaty litigation will continue. Only two of a great number of Maritime treaties have been litigated up to the Supreme Court of Canada. While Marshall's ruling has probably rendered unnecessary some litigation on those treaties, because Marshall establishes a right to the harvests and the chase, the great issue that does remain to be addressed is whether Maritime Amerindians have a treaty-based land claim.

Such an inquiry will focus on the treaty of Boston, 1725, the famous Dummer's treaty, although in the case of the Maliseet, there might also be an argument based on promises made by government in the 1760s and 1770s. Note that this treaty-based land claim will be distinct in foundation from the non-treaty based claim to the soil that Maritime Amerindians are, even as we speak, formulating under the legal doctrine of aboriginal title.

Finally, such claims are plausible. By this I don't mean that they will be successful, but they are plausible. They will be argued with great vigour and they may be successful. Until recently, maritime treaty cases always failed. Following the lead of Nova Scotia's Sylliboy decision in 1928, judges were simply unable to take Indian treaties seriously. However, since the landmark 1985 Supreme Court decision in Simon, maritime treaties have come to be taken ever more seriously by the courts, if not by the dominant culture.

• 1000

What has changed is not the treaties, but the courts. The present generation is willing to discover a meaning in treaty clauses where an earlier generation found no meaning. To ask what a treaty means is really to ask what a court is likely to say a treaty means, and the answer to that question has changed greatly in our own lifetime.

The Supreme Court's Marshall decision of September 17, 1999, seemed to throw opinion-shapers into a panic. The clarification of November 17 lowered temperatures and offered temporary respite, but will any good use be made of this calm before the next litigation earthquake strikes? Ten years from now, will Maritimers still be living from decision to decision against a backdrop of crisis and disorder? Opinion-makers in the press, politics, and the aboriginal community will have as much responsibility as courts for determining the answer to this question.

If control of natural resources in the Maritimes is to be determined by the people of the 21st century and not by ghosts from the 18th century, then the principal actors must heed the earnest advice of Chief Justice Lamer in Delgamuukw and indeed of Mr. Justice Binnie in Marshall and come to the table and talk.

Provincial and federal governments must cease playing jurisdictional hide and seek. Some of the jurisdiction may be federal—fisheries, Indians, and land reserved for Indians—but the turmoil is provincial. Maritime provincial governments must be willing to join the federal government at the negotiating table.

On matters of treaty and aboriginal entitlement, both the two levels of government and the two maritime first nations must set aside the accidental distinction between status and non-status Indians, as we have heard. As courts determine treaty and other history-based aboriginal rights, one can be quite sure that they will not confine those benefits to status Amerindians only. All aboriginal parties must be represented at the negotiating table, but aboriginals must come to negotiations as unified nations.

Division into status and non-status, and then further division of status Amerindians into many reserve communities of varying sizes, may be an established fact for some legal purposes, but when it comes to negotiating the future, the two cultural groups must, to use a phrase, reconstitute themselves as nations. They must put themselves into a position to negotiate as one reunified Mi'Kmaq Nation and one reunified Maliseet Nation.

If governments and reconstituted first nations fail to come to the table, then ten years hence we will still be living from case to case, crisis to crisis. Only when both levels of government and two reconstituted first nations go to the negotiating table will we be in a position to develop our resources with a view to the needs of the 21st century, and not the concerns of 300 years ago.

Thank you, Mr. Chair.

The Chair: Thank you.

I would turn to Mr. Provenzano first, but before I do, can you do what you are asking to be done with the Indian Act as it currently exists?

Mr. David Bell: Yes. I am not saying we should get rid of the distinction between status and non-status. Rather, what I am suggesting can be done despite that distinction.

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Mr. Bell, it's an interesting proposition, with three guidelines, the third of which I think poses a problem in practical terms. There is no doubt that it would be good to have the provincial and federal governments at the table and have representation from all of the aboriginal parties, but if you set it as a precondition that the parties must put themselves in a position to speak as one united Mi'kmaq Nation and one united Maliseet Nation, in practical terms, won't that frustrate any action? If the governments were to adopt that piece of advice, would that freeze this entire situation in practical terms?

• 1005

This committee has heard from competing interests among these very nations, and I'm going to suggest that, at the moment, if you attempted to look for one voice with a mandate to negotiate a final settlement, you would be wasting your time. Having regard to that reality, what do you see as the next practical real step that can be taken with respect to any of these negotiations?

Mr. David Bell: My comments were the comments of an interested observer, as opposed to the comments of an expert on present-day aboriginal-government relations. My comments, though they have a utopian cast in some respects, were in another respect meant to answer the very question you have asked.

Basically, we have two choices. We can accommodate ourselves to the Marshall decision. We can put ourselves in a position where there are no more riots or the riots will be only small, local disorders, but then we are only waiting for the next decision from the court and the next round of disorder. Or the opinion-makers, not just government but the press and intellectuals in the aboriginal community and academics, can, as it were, rethink these issues. I was attempting, in a modest way, to rethink these issues by saying, in effect, without using the magic words, we need a new treaty.

Mr. Carmen Provenzano: Mr. Bell, you wouldn't suggest that we rethink any issue without regard to reality. With regard to the realities and the practicalities of the situation faced right now, what's the practical next step? If we adopt what on the face of it sounds very nice, everything would come to a standstill. So what is the practical next step that you would recommend?

Mr. David Bell: I'm not an expert on the practical next step. I was trying to address myself to the question of where should we be ten years from now, and how do we get there?

Where we should be ten years from now is taking control of the situation. We shouldn't let the agenda be determined by what happened 250 years ago, important though that is. As a legal historian, I'm hardly going to downplay the significance of that, but to move forward, we have to find a way to pay due regard to the rights of aboriginals. In a sense, the way I see that is that we have to form, in a formal sense or at least in an informal sense, a new treaty that deals comprehensively in the round with aboriginal access to resources and compensation to aboriginals for dispossession.

The only way we're going to get a new treaty is if all the actors come to the table, so I was trying to identify who the actors are. As long as we have, for every purpose, including negotiations, a distinction between status and non-status, and the status Indians further divided into 14 or 15 municipalities, each with its own power structure, each with its own vested interest in the present system, nothing will ever happen. Ten years from now, we will be just where we are now.

The Chair: Thank you, Mr. Bell.

Mr. Cummins.

• 1010

Mr. John Cummins: I appreciate your comments this morning. There is more than a touch of reality in what you say. If the issue is to be resolved, certainly your suggestions will be the route by which it's going to happen.

I am curious, off the top, about your comment that Simon in 1985 was interpreted narrowly and Marshall was interpreted in 1999 in a broader fashion. I wonder if you would just comment on that and perhaps give us your view of why one was a broad interpretation and one was a narrow one.

Mr. David Bell: In 1985 in the Simon decision the Supreme Court of Canada was faced with its first maritime treaty case in the wake of section 35. I am not sure what the Supreme Court had in mind when it decided to hear the case, but by the time it wrote its decision, what it fairly plainly had in mind was articulating the principles of treaty interpretation for the future, while at the same time deciding as little as possible on the case in front of it. It realized it didn't have enough evidence in front of it.

The treaty interpretation has a once and for all character. You'd be terribly embarrassed if five years later the historians came up with a whole raft of new documents that made your decision of five years earlier seem absurd.

So on the one hand they were concerned about giving guidance to other courts on the principles of treaty interpretation. However, when it came to the actual case in front of them, they were very careful to say that all they were deciding was that a reserve Indian found off a reserve with a hunting rifle, intending to hunt on reserve, was within his treaty rights to hunt on reserve. It was no big issue at all. On the other hand, in 1999, with the Marshall case, the Supreme Court of Canada had encountered treaties in a number of contexts. There were a series of cases on Treaty 8, which is one type of treaty.

There was a remarkable case on what the Supreme Court declared to be a treaty in Quebec, the Sioui case, which is a very different sort of treaty. They seemed ready to deal with a broader concern. They had an ideal case, in a way, because in Marshall they had before them two large volumes of crown documentation and 12 large volumes of defence documentation. It seemed to be the right case.

By the breadth of their decision, they rendered superfluous an awful lot of treaty arguments that might have come before them in other treaties.

Mr. John Cummins: You talk about coming to the table to talk. Certainly Chief Justice Lamer said it was better to talk and negotiate than litigate in Delgamuukw, and then he repeated that comment in Marshall. All of that sounds fine. It sounds fine to say that the treaty should be interpreted broadly. But when the rubber hits the road, when you step outside the courtroom, it seems to me you can't negotiate. Whether or not you are talking about land or resources, you can't reach a decision without that decision affecting somebody else.

If you arrive at a decision through negotiation, you can bet your bottom dollar that somebody will litigate. That's just the way it is. That somebody may be a non-aboriginal who feels that too much has been given or an aboriginal who feels that in their instance they were left out.

We have just had this Nisga'a treaty in British Columbia. The Nisga'a from Kincolith say that regardless of how big this land is, their traditional territory is not included in the treaty, and they're upset by it. Then other bands are saying we have taken their territories.

• 1015

Regardless of what good faith there is around the table, outside that table somebody's going to be impacted. It seems to me there is no end to the litigation on this. How do you get around that?

Mr. David Bell: The greatest number of concerns of the greatest number of people, including legal concerns, would be addressed through a new treaty. I don't want to get into a discussion of the Nisga'a treaty, because I'm not able to discuss it, but of course the Nisga'a treaty takes the form of legislation of the federal government, legislation of the provincial government, and assent of the nations in question.

I gather under the interpretation of the Supreme Court of Canada the collectivity can give an assent that binds individual members. So you can't have one individual aboriginal saying “I don't agree with this position on my treaty rights, so I'm going to go out and hunt anyway.”

A new legally enforceable treaty is the best answer. It may seem utopian, but it is the best answer.

Mr. John Cummins: It seems we are a nation of individuals. We have a Charter of Rights and Freedoms. Our rights and freedoms as individuals are protected, not our rights as members of a group, whether it be as members of a native band or as members of the Lions Club, for example. We have individual rights.

It seems to me that is why there is a problem with the whole notion of treaty-making. By its very nature, it denies individual rights. That's why when I look at it I keep saying we are going to have litigation here for generations before this issue is solved.

We have the Charter of Rights, which is a reflection of the western liberal tradition which comes out of the English Bill of Rights resistance to the Stuarts and the French and American bills of rights. You're right that the emphasis is on the individual.

However, we have within our polity this little island of traditional collective rights arising out of a completely different cultural context. I think the Supreme Court of Canada is going to create and evolve a jurisprudence on collective rights as well.

The Chair: Mr. Bernier.


Mr. Yvan Bernier: First, I have a comment for our witness. But before that I'd like to welcome him. My comment might be followed by a question.

When I reread your document where I have underlined a few sentences and when I listen to you I get the impression that the fact you're a history teacher might help us clarify the problem we have right now.

The first sentence that struck me is the one where you say that nothing prepared the public for the Marshall decision or what it revealed. If nothing had prepared the public, we might wonder how we manage to keep alive the history of Canada or of everything that surrounds us because those things were written down.

It's because of communications problems. In communications, there are always all kinds of things going on at the same time. You actually point this out somewhere in your document. We have a new problem popping up every week and our attention wanders.

This time, it's true that we have to take the bull by the horns and try to settle the problem. But when we talk about settling the problem, does that mean that we have to rewrite a treaty or shouldn't we just write down how the first treaty should be interpreted?

• 1020

If I'm interpreting the 1982 Canadian Constitution properly, despite the reservations I might have about it, the treaties are inalienable. So it would be difficult to get all the interested parties around the table to change anything. So what we should do is to try to write down on paper, with people who are ready to agree, those things that we can settle. You've also pointed out yourself that there's no magical treaty. So we have to try to solve the problems one at a time.

I wanted to mention another point. You say that the only way to settle this matter would perhaps be for the Aboriginal peoples to talk, to sit down at the same table and to get together to list their demands. That might be a wish, but it will be up to them to decide what to do and how to do it.

I would also like you to help us, in the historical area, by telling us who signed this treaty. It must have been signed by the different chiefs. I don't get the impression that the treaty was signed, back then, only by one band of Mi'kmaks. Maybe there were several who signed it or sent the message along to the others. So then, trying to settle everything in one fell swoop, with one single event, might perhaps lead to another hiccup.

History can clarify the situation as a whole. We always have to look back at where we're coming from to see where we want to go. As long as we haven't settled the problems of the past, we can't settle what is waiting for us in the future. We might hope to introduce things that, in our opinion, might settle the problem, but if we don't take into account those wishes put forth in the past by the first people who signed, it will be difficult.

So could you refresh our memories and tell me if those who signed the first treaty all belonged to the same nation, whom they represented and whether several bands signed on? Thank you.


Mr. David Bell: I hope nothing I have said indicates that I have any desire to fail to respect the 18th century treaties. I live with the 18th century treaties. I regard aboriginal dispossession as a terrible fact that has to be looked into, and the 18th century treaties must be respected.

The problem with leaving it at that is that the 18th century treaties reflect the concerns of the 18th century, and they are not comprehensive treaties, so they don't deal with questions in the round. They just deal with aspects of questions.

In a province like New Brunswick, which has at least two aboriginal nations, we are apt to be in a position where it's discovered that a treaty with one nation gave it rights that the other nation didn't have. It isn't an impossible situation to deal with, but it is certainly awkward for the Mi'kmaqs to have rights that the Maliseets don't have because the Mi'kmaqs have a different treaty.

So while I wish to respect the 18th century treaties, there are limitations to leaving the matter there, especially since Marshall isn't going to be the last decision. There are a great many other treaties in the annex to my report. There must be forty treaties there, two of which have been litigated to the level of the Supreme Court.

My modest utopian point was that as an alternative to this litigation striptease, we might take a proactive stance and see whether we couldn't enter into a new comprehensive treaty. But certainly I firmly believe in respecting the 18th century treaties.

• 1025

On page 2 of my annex I list all of the treaties that were signed in 1760 and 1761. You're quite right that there wasn't just one treaty signed. There were at least eleven, and possibly a twelfth, with various Mi'kmaq, Maliseet, and Passamaquoddy bands.

Perhaps the final point I will make in response to your remarks is that I agree with you. When I say that the Amerindian nations, the two nations, must be reconstituted so that someone speaks as the head of the Mi'kmaq Nation or that someone can negotiate as the head of the Maliseet Nation, I mean the movement has to come from within the aboriginal community, of course. It's not something we can impose on them.

The Chair: Thank you, Mr. Bell.

Mr. Stoffer.

Mr. Peter Stoffer: Thank you for your presentation this morning, Mr. Bell.

In my questioning of other legal opinions and aboriginal chiefs, I have asked them a question quite clearly: Does the Marshall decision apply to non-status aboriginals, in your opinion? The answers you get from the legal people are hesitant at best. They don't really say no or yes, they kind of say's something they don't want to answer. Yet the chiefs, without question, say it applies only to status aboriginals.

I never asked the second question, but I am going to ask it now. What if they're wrong? There's a reason for why I ask that. Right now, you have a lot of goodwill between aboriginal people and those of the non-aboriginal community and the fishing communities. They want to work together in order to prepare for the winter and spring seasons when it comes to fishing the lobsters, for example. We have heard evidence of non-aboriginal people giving traps and gear to aboriginal people. They're willing to train them. They're willing to incorporate them and to develop some kind of long-term strategy to integrate the aboriginal community into the fishery so that everyone can work side by side under the same arrangement in terms of conservation and the law.

My fear is that if this is only done with the status aboriginals, if they set up this plan and go forward for a few years and everything is going along well, and all of a sudden another Supreme Court decision will say the decision also applies to non-status aboriginals, we're then right back here at the table again.

I couldn't help but notice that a paper submitted by the Conservation Council of New Brunswick says something that goes along with what Mr. Provenzano was saying this morning about the holistic method and the utopian view. However, it may not be so utopian, because in the Gladstone decision of 1996 it's quoted here as saying:

    [T]he interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.

That is, in terms of conservation.

You said the “two reconstituted first nations go to the negotiating table”. You're sort of saying the same thing Gladstone had said. I'd like you to comment on that. It may not be so utopian at all, in that it may be better to negotiate instead of asking the litigation process to go forward.

Mr. David Bell: That is certainly my view.

Going back to the first observation you made about whether or not the Marshall decision applies to non-status as well as status Indians, I believe Marshall is silent on that question. However, I would predict the decision will be applied to non-status and status Indians indifferently. We have several decisions in Canada that apply treaty benefits to non-status and status individuals equally, including decisions in New Brunswick, but also some in Ontario. I am confident that's what the Supreme Court of Canada will say if it's asked.

The Chair: Mr. Power, this is the last question.

Mr. Charlie Power: It may just be a brief question.

• 1030

You're a legal historian. We—and members of the opposition in particular—criticize members of this Liberal government, which has been in place since 1993, for forgoing its responsibility to govern this country and for in many ways allowing the Supreme Court to make decisions that politicians should be making, whether it's dealing with child pornography in B.C. or whether it's dealing with the Marshall case. Do you see that as a modern trend? Is it just with this government, or has that been the case with all governments in terms of avoiding making the really tough decisions while letting the Supreme Court do that for the people of Canada?

Mr. David Bell: In a way, in a nutshell, that was the core of my presentation. I don't think Parliament and the provincial legislatures should allow the Supreme Court to shape resource exploitation in the Atlantic provinces in the 21st century on a sort of haphazard, case-by-case basis in its interpretation of 18th century treaties.

To the more specific part of your question, I'm afraid you may be correct. Governments are increasingly tempted to leave difficult issues to resolutions or human rights legislation or charter rights litigation, rather than leading.

Mr. Charlie Power: I just want to ask another question, because we don't get many legal historians around here.

There's also this modern trend for governments to be revisionists in some of the things they do, whether it's going back and correcting or changing history, such as with Louis Riel. He was a traitor at one stage of his life, unfortunately, and now he is a patron of Manitoba and a Father of Confederation. How do you see that happening when it comes to correcting treaties? How do you see this revisionist business happening?

Mr. David Bell: That's a difficult question to answer, but I think a culture should face up to its past. As our culture has dispossessed the Amerindians and herded them into reserves—perhaps it wasn't to exterminate them, but to preserve them from extermination, but we nevertheless herded them into reserves—I don't think we should hesitate to admit that.

The Chair: Thank you, Mr. Power.

I had one question relating to what another professor of history said. Dr. Stephen Patterson—I'm sure you know each other—had this to say before the committee—and I want to know your point of view on this:

    I found it particularly striking that the Cape Breton chief, speaking for all of the others, said: “our intentions were to yield ourselves up to you without requiring any terms on our part.” In other words, they made no demands and set no conditions. In his lengthy speech, carefully translated by someone who spoke the Mi'kmaq language, he made not a single reference to trade. He concluded thus: “As long as the Sun and the Moon shall long will I be your friend and ally, submitting myself to the Laws of your Government, faithful and obedient to the Crown.”

What is your position on that statement as an historian? Or do you recall it?

Mr. David Bell: It's difficult to give a short answer to an historical question of that nature. The passage you quoted could be set beside other passages in which it's clear that the primary Amerindian concern is trade. There's a great advantage in being in a position to read all of these treaties simultaneously—the ones that I've listed in my annex. The great theme that emerges from a review of the entire treaty relationship between the Government of Nova Scotia and the Amerindians is trade. The Indians' number one concern is trade.

• 1035

I would set that against this highly rhetorical speech that is attributed to the Mi'kmaq. It's not that I doubt the accuracy, but Indians spoke in a certain rhetoric when they negotiated, and government minute-takers took minutes with a certain rhetoric. I don't think you can take one isolated passage and say it reflects the Amerindian view, because it's clear from a review of all of these treaties that the number one Indian concern was access to trade goods.

The Chair: Thank you for your opinions and your presentation, Mr. Bell.

Mr. John Cummins: Mr. Chairman, I think we should acknowledge that Professor Bell has freely given of his time. He's not directly involved in this issue, but has certainly contributed a great amount to our discussion this morning. I certainly appreciate the fact that he has taken this time.

An hon. member: Hear, hear!

The Chair: Thank you, John.

On behalf of us all, thank you, Mr. Bell.

From the Conservation Council of New Brunswick, we have David Coon.

Mr. Peter Stoffer: [Inaudible—Editor].

The Chair: I read that document three years ago, Peter. I hope you have.

There's no question that Peter swears by that blue book. He mentions it every time he gets a chance. It's Beyond Crisis in the Fisheries, and I will admit that it is a good document.

Mr. Coon, I think you know the procedure. We want to try to keep it down to half an hour. If you can highlight your submission, we can then spend some time on questions.

Mr. David Coon (Policy Director, Conservation Council of New Brunswick): Thank you, Mr. Easter and honourable members.

We want to first say we appreciate the opportunity to come before the standing committee, and also the fact that you have taken the time to come around to do these travelling hearings. They are awfully important, and really one of the rare opportunities when we get a chance to participate directly in the democratic process within the parliamentary system we have set out.

When the Marshall decision came down, I recall getting it off the Internet fairly quickly. I knew the Conservation Council would be getting calls from the media, asking what the implications of this are from a conservation perspective. I went through the decision and it seemed fairly straightforward.

Aboriginal rights and treaty rights are entrenched in the Canadian Constitution of 1982. Maybe that was a surprise to some people, but not to us. We had some familiarity with case law and Supreme Court judgments around aboriginal rights and treaty rights, so it seemed to us that the logical next step would be for the crown, through the Minister of Fisheries and Oceans, to sit down with the aboriginal leadership to start talking about the sort of regulatory regime that would be put in place.

I have never seen an issue that has been misportrayed so frequently and so routinely in the media provincially, regionally, and nationally, as some kind of wide-open fishery to be conferred to aboriginal people. The language constantly was “unregulated rights”, “unfettered rights”, “fish at will”, and all those sorts of things. From the judgment, that clearly wasn't the case, and isn't the case, as the later material coming out of the Supreme Court simply reiterated what was said in the judgment. The court went into some details around some of the other decisions that I guess perhaps other people were not familiar with, but the point of the treaty overall, in the fisheries context, is to ensure that Mi'kmaq, Maliseet, and Passamaquoddy have equitable access to fisheries for the purpose of earning a moderate living. It's fairly straightforward.

The question is how the current management system accommodates those treaty rights. We know from Marshall and previous Supreme Court decisions that they laid out two types of limitations. One would be regulatory limits around what would constitute a high-risk equivalent to some kind of a moderate living. The other would be those regulatory limits that could be justified for compelling and substantial public objectives, to be established in consultation with affected aboriginal communities.

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It was certainly our expectation, as the major conservation advocacy organization in New Brunswick, that we would soon see the minister and the department sitting down with aboriginal communities to talk about these things.

What kinds of public objectives? The record on this is fairly clear in the Supreme Court decisions in Sparrow and in Badger. Conservation is primary. Then there's economic and regional fairness and recognition of historical reliance on participation in, in this case, the fishery. Then there's protection of public safety and various other things that could be justified as compelling public objectives. And as the Supreme Court noted, the minister has the full range of management tools and techniques available to him, provided that their use, inasmuch as they limit the treaty right, can be justified to meet these kinds of objectives.

Well, as someone has already noted here, in the Gladstone decision, the court said in the right circumstances, such objectives as the ones I just listed are in the interest of all Canadians, and more important, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.

The fact is the compelling and substantial public objectives of conservation, economic and regional fairness, and recognition of historical reliance upon and participation in the fishery by non-aboriginal groups have not been and are not currently being achieved in our commercial fisheries as they are currently managed. With the exception of the lobster fishery, the current approach to management, access, and governance in most fisheries will have to be overhauled to accommodate treaty rights and meet the public objectives the court has listed.

Why with the exception of the lobster fishery? Well, the lobster fishery has been managed rather successfully compared to most other fisheries, although no doubt there could be improvements in conservation practices and certainly improvements in terms of access to the lobster fishery. I won't go into those details at this point.

We want to address a couple of your issues around models for fisheries management that might accommodate aboriginal treaty rights, structures, and such. It is our view that a community-based model of ecological fisheries management has almost a unique chance of accommodating aboriginal treaty rights, while at the same time more effectively conserving the fishery, providing for greater economic fairness, and recognizing historical attachment.

The current system doesn't recognize the historical attachment of fishing communities to their fisheries. The fact that a person's allocation for groundfish is simply related to a few years of catch history in recent times is a travesty. It doesn't recognize the historical attachment of that person, their family before them, or their community as it currently stands.

So when we're thinking about accommodating these rights, we need to think about what the current situation is as well. Surely these public objectives should be attained for both aboriginal people and the broader fishing community.

The management model that dominates most fisheries other than lobster is the single-species-based quota management approach, which has by and large been a failure, whereas the lobster fishery is managed much differently and by and large has been a success. There are some concerns here and there—in certain areas they may be fishing it a little too hard, and some adjustments could be made—but by and large, to accommodate treaty rights with respect to lobster, we would see just some tweaking necessary.

With respect to groundfish, herring, and some of the other species, clearly a more significant overhaul will be required, and in doing so, we don't believe it's going to end up being possible to make the system acceptable to all stakeholders. Choices will have to be made in this process to best serve the public interest. Certainly from our perspective, the public interest is best served in the fishery outside of aboriginal communities by maintaining the small-boat inshore fishery and the economic viability of the communities it supports up and down our coastline.

• 1045

I've provided copies of Beyond Crisis in the Fisheries. Some of you have seen this before. It outlines some of the key principles, which I won't go into in great detail, but I do want to talk about two.

One is the idea of proprietary rights to the fisheries resource being allocated to coastal communities dependent on those fisheries. The idea is that fishing communities be given the kind of collective right held by aboriginal communities through their treaties for their members to earn a living from fishing, without infringing on those treaty rights or aboriginal rights. That's one.

The second one is, beyond that, to place more management responsibilities in public hands at the more local level than we currently have. We've suggested a system of management structure that would accommodate this and that we certainly could see working well in the broader fishing community. Obviously it's going to be up to aboriginal communities what management structure they're going to put in place, but fundamentally, these management structures and this community-based approach would operate through a trust arrangement negotiated between the crown and the communities, whether they're aboriginal or not.

We lay out a number of obligations under such a trust arrangement that the local community or the aboriginal community would have to meet. For example, they would have to hold in perpetuity for all generations the fisheries resource within their geographic area, within their traditional fishing grounds; decide on new access to fishery resources and ensure that access is affordable; and ultimately administer the public trust so as to ensure the greatest possible benefit for the community in perpetuity, while respecting aboriginal and treaty rights.

We don't see any tremendous difficulty in accommodating treaty rights in the fishery, as long as we recognize that in working towards that, the current system is not currently meeting the compelling public objectives that are set out by the courts for limiting or providing the framework within which treaty rights will be exercised.

I want to leave lots of time for questions. The last time I appeared before a committee I went on way too long. Maybe I can just leave it at that and we can open the discussion.

The Chair: Thank you, David.

Mr. Stoffer, do you want to start?

Mr. Peter Stoffer: Thank you very much, Mr. Speaker.

I tried not to say it, but I have no choice.

The Chair: Oh, his comment is going to be on ITQ.

Mr. Peter Stoffer: Although Mr. Coon didn't say it, I'm going to say it.

As you know, David, I have been adamantly opposed to the system of ITQs and EAs. That's quite obviously what you're saying as well. Private individual ownership to privatize what I consider a common-property resource into the hands of a few individuals is bad for everybody and especially bad for conservation.

As you know, right now an alliance or a merger is about to happen, if it passes regulatory approval, of the corporations of Clearwater, Bill Barry of Seafreez, FPI, along with an Icelandic group called NEOS. Some people will say that's a business concern and they're in a competitive market, and that's the way it should go in order to protect the jobs and livelihoods in many coastal communities. That may be so, but my fear is that will concentrate the resource into even fewer and fewer hands. Would you agree with that statement, or would you disagree?

Mr. David Coon: Clearly what we're saying in this brief and what we've said repeatedly is that the approach DFO has been taking to public policy in the fisheries, increasing the privatization of the resource and increasing its concentration, is in our view not in the public interest. There has to be a decision by the federal government as to what are the clear policy goals for the fisheries.

We would argue that in addition to conserving the fisheries and maintaining all of the ecological processes that allow fisheries and fish stocks to be there, essentially the goal is to maintain the health and vitality and hopefully restore the health and vitality of coastal fishing communities that are largely dependent on the fishery for not just their economic well-being but their social and cultural well-being as well.

• 1050

Obviously, in view of the treaty rights and in a view of history, we extend that to aboriginal communities who were very much engaged in the fishery for a long time. But perhaps the kind of extensive engagement that once was there has backed off a little through the failed assimilation policies of the Canadian government during the 20th century, up until 25 years ago or so, and in the late 19th century.

Mr. Peter Stoffer: We did hear evidence, though, where, for example, on Prince Edward Island, the snow crab industry got together and formed an organization, and they had sort of a co-management plan with DFO in which they would include science, enforcement, and some sort of allocation among themselves. It works very well.

We also heard of an organization of the snow crab industry in area 19, up in Cape Breton, and it works very well. They are very pleased with their progress. There are 111 fishermen involved in that. There is an ITQ within that concern.

There are many other people who say if it works for them in order to co-manage the resource with DFO, then it's a good model and a good example of what can happen in order to preserve a specific species and in order to work closely with DFO and the coastal communities.

Are you aware of those agreements?

Mr. David Coon: What we would argue is that ultimately quota approaches to management cannot work if the intent is to conserve the fishery. We cannot know how many fish are in the sea, because there are too many other factors that determine the health of fish stocks. Therefore it will never work to simply try to manage a fishery based on quotas.

As we have seen in the lobster fishery, which is not a quota fishery, it has been managed relatively well, setting limits on how you fish, limiting technology, fish-capturing capability, and those kinds of things, and using seasonal restrictions. You limit when you can fish, and in some fisheries you limit where fishing can be done. You also limit what you can fish. In the sense of the lobster fishery, you can't land buried lobster and shorts, and maybe some time in the near future you may not be able to land V-notched lobster, if we go that way.

So in looking at fisheries management, we really have looked at the lobster fishery as kind of a model. We ask what works there and how that can be applied in other places. We also ask what has been a disaster in other fisheries. Clearly, this approach to quota management has been a disaster.


Mr. Yvan Bernier: As I wouldn't want to get a debate going with Mr. Stoffer, I'll look at the question differently.

You talk about conservation methods and management methods. I'd like to get your opinion. This morning, we're trying to unravel the points concerning the Aborigals and more specifically concerning the Marshall case. In this affair, the crucial matter is to define what a reasonable living might be. That's the challenge issued by the Supreme Court's judgment. Another committee will be set up by the Minister of Indian Affairs to look into the matter more deeply with the Aboriginal bands. But the fishers have already had to face this challenge in the sense that it's their resources that will have to be part of these natives' reasonable living.

This summer, Canada ratified the United Nations Fisheries Accord. I believe clause 5 of this treaty as well as section 3 stipulate that the signatories must agree to develop and manage their fisheries in a profitable and sustainable way. But I just can't get the Canadian senior officials to give me a definition of sustainable management according to our Canadian vocabulary.

One day, I'd like us to be able to have a forum of experts to hear the two schools of thought, the one in favour of mobile gear and the one in favour of coastal gear, all this with a view to ensuring sustainable fisheries. That might lead us to a definition of "profitable fisheries". And if we get to that, we might one day be able to define what a reasonable living is because to grant someone a reasonable living, first you have to determine the profitability threshold. Then you have to agree with the Aboriginals to determine whether you have to add $1,000, $6,000, $5,000, $10,000, $20,000 or $100,000 to the profitability threshold.

• 1055


The Chair: Yvan, I hope you're getting to the question.


Mr. Yvan Bernier: I'm getting to it, I'm getting to it. Here's my question: do you raise the points you're raising here concerning conservation methods with the groups you meet or the contacts you establish with the fishers? How can we deal with the famous quarrel between those two positions concerning mobile gear—ITQ—stationary gear and the competitive management system? Is there any way of dealing with that? Those are two schools of thought that are always at daggers drawn.


Mr. David Coon: No, they can't be reconciled.

We work a lot with fishermen's associations in the Bay of Fundy. More recently, we have been working with their umbrella organization, the Bay of Fundy Fisheries Council, where actually, over the period of a year, those fishermen's groups all around the Bay of Fundy and Nova Scotia and New Brunswick have hammered out principles of what they call good management or sustainable management that look at it from an ecological and a socio-economic perspective. I think all but one of their more than a dozen members have essentially ratified those principles. So there's some excellent and fascinating work going on within the fishermen's associations and fishing communities with respect to that.

We don't believe you can reconcile the ITQ fishery with maintaining communities engaged in the fishery. Our frame of reference is the Bay of Fundy specifically, because we've worked with the Bay of Fundy fishermen's groups, and also, that's where our family connections are. But in terms of moderate livelihoods, as far as the inshore fishermen go, the only people making moderate livelihoods in the fishery are the ones who have lobster licences, and their moderate livelihoods are coming from the trap limits and seasons within which they operate. So you would expect that similar trap limits and seasons should be in place to provide a moderate livelihood for aboriginal people.

There are those people who don't have lobster licences in the fisheries. I can think of a fellow in Digby County who can't afford one, because they have become commodified. It is a travesty in Canada that lobster licences have become commodified and out of the reach of the average fisherman who wants to get into the lobster fishery.

I know of a fellow who largely tried to eke out an existence by handlining groundfish. He doesn't have moderate livelihood, I'll tell you that. The only way you can get a lobster licence is if you have access to capital or are willing to accept the backing of processing companies sort of behind the scenes. It is a very serious situation.

In terms of moderate livelihoods, you can still look at the fishery and at how inshore fishermen are fishing, the kinds of limits that determine their livelihoods, as separate from the ups and downs of fish prices. How that is going to get dealt with is anyone's guess, but for things like the lobster fishery, it seems to us the trap limits in place are providing a livelihood for lobster fishermen.

The Chair: Thank you, Mr. Coon.

I have one question. You've talked fairly extensively about the lobster fishery, and that as a model it seems to work well. But in the context of the Marshall decision and the clarifications on it, from your perspective, how do you see bringing the native community into that fishery in a way that does not jeopardize the stock or the livelihoods of the regular commercial fishermen who are there now?

Mr. David Coon: I think it's going to vary from area to area. In those areas where the stocks may be stressed a little more than others, maybe everyone will have to take a little drop in their trap limit, and maybe we'll have to bring in V-notching.

• 1100

V-notching is where you clip the tail of a female that is carrying eggs, and then you throw the lobster back. There is a prohibition on landing it. You cannot land lobsters with a notch in their tail, which allows the females to reproduce a couple of more times. It is used in Maine, and I think it has been part of the saviour of that fishery. There has been no limited entry in Maine and there have been no trap limits until recently, but they have had V-notching for quite a long time.

So there has to be an adjustment in trap limits in some areas, and V-notching probably would be a good idea anyway, from a conservation perspective across the Maritimes.

Other than that, it doesn't seem to us that there is going to be a particular problem. There is a good rationale for it. You may have to adjust the seasons a little bit. If you look at the justifications laid out for limitations on fishing under the treaty, you have to ask, what's the justification around seasons? There are questions of economic fairness. It is a fact that in the lobster fishery the best fishing is in the first couple of weeks and then things go downward. So you don't want one group being able to benefit from that first couple of weeks before everyone else can.

From a conservation perspective, in a sense, the seasons were brought in originally.... Remember that our lobster rules date back to the 19th century. The fundamental rules that maintain the fishery haven't really changed that much. Originally, the rules were to have no fishing on moulting, soft-bodied lobsters, but it wasn't so easy to enforce, so the seasons were brought in to coincide with when the lobsters were moulting and soft-shelled.

Those seasons have changed. Depending on where you are in the region, sometimes the seasons don't fall biologically when that moulting occurs any more. Perhaps the seasons have to be adjusted a little bit to meet the necessary justification for conservation purposes.

From a conservation perspective, interestingly enough, you find in some areas that they make perfect sense, as in the Bay of Fundy. The seasons generally fall right when the moulting and so on is happening. In other areas it doesn't coincide with that quite so well.

So there has been some fooling around with the seasons over time to the point where DFO argues they're not a conservation measure at all. And then in some regions you can see why that might be the case. These things can be worked out without any great problems.

The Chair: An area where there are no seasons is in the food fishery granted under Sparrow. We have heard a lot of criticism on the food fishery during this tour of hearings that it sets up an illegal black market, in some instances, for both aboriginals and non-aboriginals. What impact, in your view, does that have on the conservation of the lobster fishery, and how can you handle it, given the decision by the Supreme Court through Sparrow?

Mr. David Coon: Do you mean handling the black market that might—

The Chair: Handling the lobster, the fishery for food and ceremonial purposes.

Mr. David Coon: Clearly, that is in a different wet box, because you are talking about aboriginal rights, not treaty rights. The implications of that are quite different in terms of how those are regulated. So I don't think the problem is with the food fishery; the problem is probably the concern around the black markets that may be developing around that.

To us, this is the same concern that exists around poaching in the broader community. Those things need to be enforced.

We have seen a lack of courage around enforcement overall. The one thing fishermen complain about a lot is the lack of enforcement. To us, that seems to be the case.

This is going off on a bit of a tangent regarding, for example, violations of discarding and high-grading. In a report we published with the Ecology Action Centre last year it revealed a disturbing lack of enforcement around those very obvious violations.

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Enforcement is a big issue. As it is set up under the current system, enforcement is not being carried out very effectively.

The Chair: Since enforcement also comes up fairly extensively, I wonder if you could send a copy of that study to the clerk, or we could get Alan to get it perhaps.

Mr. David Coon: Absolutely, yes.

The Chair: Thank you very much, David, for your presentation and for the booklet as well.

The next witness is from the New Brunswick Wildlife Federation, Mr. Fred Wheaton. Welcome, sir. I note, Mr. Wheaton, you've a fairly extensive brief. Can you highlight it fairly quickly so there will be some time for questions?

Mr. Fred Wheaton (Chairman, New Brunswick Wildlife Federation): Thank you, Mr. Chairman.

In the invitation we received we were asked to address two issues: first, our concerns, and second, our interpretation of the Marshall decision and review. If it's your pleasure, I will just address question one. We've highlighted in point form in our submission our interpretation of the Marshall decision review. You have probably heard it all before and there's probably not much point in my going through that now, unless you wish.

The Chair: Fire away just as you desire, Mr. Wheaton. We will question you on the brief.

Mr. Fred Wheaton: Our federation was organized in 1924, and it's the largest conservation organization in the province. We believe in the wise use of natural resources. Our federation represents fish and game clubs all around the province. We are the New Brunswick affiliate organization of the Canadian Wildlife Federation. We take positions on issues involving wildlife, habitat, hunters and anglers.

I might add that we are a volunteer organization. We currently have one paid employee, our executive director.

Recreational fishing is an industry. It was worth about $50 million to New Brunswick in 1995 and supports many hundreds of jobs. According to a 1993 study, a restored recreational fishery could increase the economic value of the $50 million to $135 million, along with another 850 additional jobs.

Your question to us focuses on the economic viability of the industry. Although recreational fishery is an industry, we would like to point out to you that recreational fishing is also a part of our tradition, heritage, and culture in New Brunswick. There is an historical participation in that fishery.

We agree that it is paramount to ensure the sustainability of fisheries resources. However, these resources are in serious decline. Provincial angling licences have decreased by 50% in 15 years. Our trout catch has declined by nearly a half and the recreational salmon catch by two-thirds.

Our trout catch limits have been drastically decreased. The Gulf of St. Lawrence striped bass fishery has been closed, and much of the salmon fishery in the province has been closed. The outfitting industry is suffering. For most cases there is no room for increased harvesting of these three species, which support most of the recreational fishery. Our chief concern is how the implementation of treaty rights recognized and affirmed by the Marshall decision may impact these resources.

There are currently no legal commercial fisheries for salmon, trout, or bass. Over the past 20 years nearly 2,000 commercial salmon licences have been retired, at a cost of around $20 million.

We feel abandoned by the Department of Fisheries and Oceans as we watch federal hatcheries being divested or closed and we see conservation enforcement efforts drastically reduced.

• 1110

Although the management of all fish stocks in this province is the responsibility of the Department of Fisheries and Oceans, the department does not in fact manage recreational fisheries, other than putting regulations in place for salmon and striped bass, leaving the province to manage the rest by default while refusing to give the New Brunswick government the tools to do the job. We feel we need an agreement between the agencies to allow the province to manage year-round fisheries.

The courts have suggested that agreements be put in place, failing which resort to the court can be had. Really what should be done is the total renegotiation of the treaties on all issues, federal and provincial, not just on a piecemeal basis, which is what is being suggested.

Failing that, agreements should be reached, but consultation is essential now so that the agreements will be in place early in 2000 to manage the fisheries next year. It is to be noted that the CWF policy paper, which we've attached, suggests full consultation with stakeholders, including non-natives.

The existing native salmon food fishery quotas, in our opinion, are too high in some cases. Because of low returns, no large salmon should be taken, period. These are the big spawners that are essential to the restoration of the fishery. It's to be noted that at present there's no commercial non-native fishery, and anglers are restricted to grilse—namely, one-sea-winter fish. It is essential that reasonable quotas be set for all aspects of the fisheries and that mechanisms be put in place for full and accurate reporting of harvests by all participants.

It is to be noted that necessaries would come from all hunting, fishing, and gathering activities, not just the fisheries. That's why there should be negotiations across the board on all issues, and not simply on a piecemeal basis.

We feel the onus is on the Department of Fisheries and Oceans to manage the resources for conservation in the first place, with excess allocations to user groups.

Our question is what does the Department of Fisheries and Oceans intend to put in place to ensure accurate reporting and to prevent abuses?

I'll stop there, Mr. Chairman, if you wish, and take some questions.

The Chair: Thank you, Mr. Wheaton, for laying it out directly as you see it. We appreciate that.

Mr. Cummins, do you want to start?

Mr. John Cummins: Thank you very much for your presentation this morning, Mr. Wheaton.

In the document you provide from the Canadian Wildlife Federation, you set a priority of users. You have aboriginal sustenance users, non-aboriginal sustenance users, recreational users, and commercial users. How do you define the non-aboriginal sustenance users?

Mr. Fred Wheaton: I wish I had my president here, because he's our director on the CWF board, and they examined that issue at their last meeting, just last month. I don't have an answer to that question. It might refer to outfitters, people living in remote areas who use the resources for food.

Mr. John Cummins: Because the priority set in Sparrow is conservation of the resource, aboriginal users, sport, and commercial. The aboriginal users will now include, I guess, aboriginal users as defined in Marshall, in this treaty right to the commercial fishery.

It seems to me there's not so much a potential conflict, but a potential bone of contention in some areas perhaps, because if you look at commercial usage, it generally entails a fair number of fish, but sport use would mean probably a much lighter harvest. There would be quite a difference in the numbers. So you could allow sport-harvested fish or a sport fishing operation to be in place without impacting on the conservation of the species, whereas you couldn't allow a commercial fishery to operate, simply because the harvest would hit the species too hard.

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But if the court interpretation is taken to be that the treaty right under Marshall is given a priority over other commercial users, there is going to be a conflict, I can see. Would you agree? Is that an issue of concern to your group?

Mr. Fred Wheaton: Yes, that's our chief issue of concern. When we saw what happened here when the Marshall decision was first announced and what happened on our north shore, in Burnt Church and some other places, we immediately became concerned that some people might interpret this as open season on some of our other stocks, such as salmon, trout, and bass.

These species are just in desperate shape here in the province. Some of our salmon stocks in the Bay of Fundy and this river right out here, the Petitcodiac, if they disappear, they're gone. We're below spawning escapement on the whole Fundy side as far as our Fundy river salmon go. Our Miramichi has been in a state of decline for the last eight or ten years, if you want to plot a curve on the population returns. Our trout stocks have been decimated through overharvesting and habitat destruction over time, so we're trying to rebuild those.

Our point is we can't see how there could possibly be a moderate living to be made in there for anyone, if moderate living is the definition.

Mr. John Cummins: Yes. With sport fish in this province, meaning Atlantic salmon, there's simply a problem of survival of the species, let alone any discussion of who's going to get first crack at it, when you consider some of the problems.

I know this committee is considering looking at the impact of transfer of disease from fish farms to wild stocks and all that. Those things must be a huge concern to your association.

Mr. Fred Wheaton: They certainly are. Recreational anglers have not been allowed to retain large salmon, or multi-sea-winter salmon, since 1984. And I believe the limit is eight per year per angler on the smaller fish, or grilse, which do not contribute anywhere near what the large fish do for spawning. So we're desperately trying to conserve as many of those large fish as we can.

Mr. John Cummins: The impression I'm coming to, certainly on this coast here, is that before anybody who wants to harvest the resource gets into a discussion of who's going to go first, the survival of the resource has to be of concern for everybody. That's the key issue. You may want to comment on that; I don't know.

Mr. Fred Wheaton: That is the key issue. Obviously without the resource, there's nothing for anybody.

The Chair: Before Mr. Steckle comes in, I'd like to say something. Since the Marshall decision, the area that certainly got all the coverage and the area where we know to a great extent what's been happening has been the lobster fishery, be it in Burnt Church or Malpeque Bay or wherever.

Has there been any additional impact on the salmon, trout, and bass resources as a result of the Supreme Court decision? Have there been any activities there that we're unaware of?

Mr. Fred Wheaton: Not that I am aware of. It would have been rather late in the season, when the Marshall decision was handed down, for trout and salmon fishing in the traditional timeframes. But no, I'm not aware that anyone went in and targeted bass, trout, or salmon since the Marshall decision.

Our concern is what will happen next June, when the traditional time for that fishery might start. That's our concern now.

I don't feel it's impacted to any degree since the decision.

The Chair: Mr. Steckle, who I know is an avid hunter and fisherman, go ahead.

Mr. Paul Steckle: I'm not as familiar with the east coast sport fishing industry as I am with the one in Ontario, but it seems to be a national phenomenon that the governments, whether provincial or federal, are walking away from some responsibility they might have towards that particular sport.

You mentioned in your comments here that the federal government has divested itself of its responsibilities in fish hatcheries. How much of that obligation to put fingerlings back into the waterways has been taken up by private interests, whether they be local anglers' and hunters' groups or simply people interested in the sport? Have local people taken up that responsibility or have they not?

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Mr. Fred Wheaton: They certainly have to a degree in this province. We had a federally funded recreational fisheries program here a few years ago. I believe it started in 1992, and it ran for five years. That has spawned, if you will, a number of very good restoration projects in various areas of the province. A lot of them have to do with habitat restoration, and certainly some stocking.

As far as the hatcheries are concerned, the Miramichi hatchery currently is being operated by private interests. I obviously don't know if they'll be successful in the long haul, but they are growing fish, and those fish are being stocked—salmon and trout—by volunteers in the various areas of the Miramichi watershed.

Mr. Paul Steckle: Who's supporting that? Where are they achieving their finances? For private individuals fishing for sport purposes, obviously they have to buy licences, is that correct?

Mr. Fred Wheaton: That's correct.

Mr. Paul Steckle: Where do the resources go from those? Do they go back into the sport, do they go back into this industry, or are they lost in the general revenues?

Mr. Fred Wheaton: Up until three or four years ago, all the licence revenues did go back into general revenues. Since that time, the New Brunswick Wildlife Council has been established and a $5 surcharge on every hunting and angling licence sold goes into the New Brunswick Wildlife Trust Fund, which is administered by a volunteer board. That program has been funded at probably around $1 million a year in hunting and angling projects around the province for the past two or three years. So some of it is now dedicated or is going back in. Actually, the trust fund did give some funding to the Miramichi and the Charlo hatcheries over the past two or three years to help support their efforts. That money isn't coming from the federal government.

Mr. Paul Steckle: I want to relate it to something that happens in Ontario. Ontario realizes somewhere around $65 million just in GST alone in the industry of sport fishing. I'm just wondering why it's so difficult to get government orders for DFO to understand the importance of this particular industry when there's such a realization of revenues from the sport. There is a big payback here. Why is it so difficult for them to understand that? What is your view on that?

Mr. Fred Wheaton: I wish you could tell me. I've shared your view for a good number of years, and I really don't know. If you look at the economic value of the recreational fishery—I don't have the numbers in front of me—it is staggering in terms of the revenue and economic activity that is generated, yet we don't seem to have much priority from DFO at all. That seems to be at the headquarters level in Ottawa as far as I can tell. I don't know.

Mr. Paul Steckle: What would you do if you were in my position?

Mr. Fred Wheaton: I guess I would.... I don't know. In what regard? Could you give me a little...?

The Chair: Paul is a member on the government side.

Mr. Paul Steckle: I'm on the government's side.

The Chair: Not always, though.

Mr. Paul Steckle: We'll put you into my position. What would you do if you were me? As difficult as it is for you, in your mind you must think it must be in my position to change things. Sometimes I think it's difficult. It may be more difficult to do that from my position.

Mr. Fred Wheaton: I think I would be asking your Minister of Fisheries and Oceans why the situation we've just discussed exists, and what could be done to remedy it. I would try to tell him of the importance of the fisheries. I would ask him what's going to be done, what safeguards are going to be put into place for the upcoming spring, to protect these valuable stocks that are at very low levels. What's the plan? What's the strategy? Do you have one? If you don't, you had better get one.

The Chair: Thank you, Mr. Wheaton.

Mr. Paul Steckle: I guess there's one other element, and that's the science of this thing. Who predicts, who can predict, or who should predict? Obviously, if DFO has abdicated its responsibilities to this particular industry, where is the science coming from? Who's telling who that the fish stocks are being depleted abnormally, much more quickly than they should be?

Mr. Fred Wheaton: For Atlantic salmon and striped bass, the science is coming from DFO. The science is being carried out largely in Moncton and in Halifax at the regional level, and in the field. They're doing a fair amount of assessment on striped bass and salmon.

Our problem with the salmon is marine survival. Something's getting them out there, but we don't know what it is. The North Atlantic is a pretty big black box to try to do research on, so I don't see that we're going to find much out there.

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As far as our trout, blue-line bass, and other stocks are concerned, there is virtually no assessment done by anybody. It's a guess, largely by provincial biologists, and it's usually anecdotal. There's really no assessment being done of those other species. The brook trout is the backbone of our fishery here, in terms of economic activity province-wide.

The Chair: Thank you, Paul.

Mr. Stoffer.

Mr. Peter Stoffer: Thank you, Mr. Chair.

Thank you, Mr. Wheaton, for your report. I always admire the grassroots people who try to protect the natural resource for the benefit of all, in terms not only of recreational activity, but economic activity as well. You and your organization should be commended for the work that you and other organizations clear across the country are trying to do at the grassroots level, with minimal or no financial assistance from the federal government, and in some cases none at all from the provincial governments.

I have a couple of concerns. You mentioned that there is no question that the fees that have been downloaded to fishermen and their organizations have been tremendous, whether they be warrants, enforcement, fines, increased licence fees, or anything else. And then we're trying to tell these individuals who access the resource to go out and make a moderate livelihood, with all these increased and downloaded fees from the DFO.

I've been working with the Margaree hatchery, trying to get $50,000 from the DFO in order for them, in the next two or three years, to operate their hatchery and provide a great economic livelihood for that area of Cape Breton, which was a great fishing river, as you know.

Why do you think that government is so hesitant—negligent is another word—to provide the assistance that is so desperately required?

Mr. Fred Wheaton: I don't know, and I don't know for the life of me who dreamt up the policy of divesting these hatcheries, trying to offload them onto private industry and then specifying that you have to be a non-profit organization in order to run the damn things.

Mr. Peter Stoffer: Call me crazy, but I have a sense of contradictory paragraphs in the brief you presented us with the attachment from the Canadian Wildlife Federation. On the provision of rights based on aboriginal status it says:

    In a democratic society, the recognition or provision of special rights by governments should not be based on aboriginal or non-aboriginal status. All Canadians should be treated equally under Canadian law and governments should promote increased equal individual rights.

In the following paragraph it says: “No person should be granted exclusive rights to harvest or manage wildlife based on their aboriginal status,”—and here is the problem with that—“except on native reserves or other lands owned exclusively by aboriginal persons.”

In one paragraph you say everyone should be treated equally, and in the next paragraph it says only those natives on reserves or other lands owned exclusively by aboriginals would have rights or access to manage or harvest wildlife. Do you not see a contradiction in there?

Mr. Fred Wheaton: Yes, I think so.

Mr. Peter Stoffer: This is a brief that was presented, and I'm just wondering why that would be there.

Mr. Fred Wheaton: Again, I wish I had my president with me, because he is a director of the CWF and he was in on the review of that policy. I haven't seen that in years. He gave it to me and told me to haul it in there. I can get you that answer if you wish.

Mr. Peter Stoffer: If you don't mind, at your convenience. For the committee, that would be really appreciated.

Mr. Fred Wheaton: Okay.

Mr. Peter Stoffer: Again, I wish to thank you and your organization for trying to put out your thesis for the benefit of all.

Mr. Fred Wheaton: Good luck with your Margaree hatchery. I hope you find the money for it.

Mr. Peter Stoffer: I'll answer that question for you. If I were on the government side, I'd walk into the minister's office and say “Give me a cheque for $50,000, and we'll send it to Mr. Wheaton; and another one for the Margaree hatchery, and we'll solve that problem.” It's done, there you go.

Mr. Fred Wheaton: That's right.

The Chair: He loves to spend money. We know that, Peter—especially when it's other people's money.

Mr. Peter Stoffer: It's an investment.

The Chair: Mr. Power.

Mr. Charlie Power: Let Peter finish.

I'd like to congratulate you on the extra work you do. As a hunter and fisher in Newfoundland, I'm involved with some of the organizations there. It's noble work to do, and very difficult work at times.

I'll answer Paul's question of why the federal government, the Department of Fisheries and Oceans in particular, has abandoned the tourism, sports, and recreational fishers in Canada. I think through downsizing and through some of the pressures they've had in DFO, they really have become the department of commercial fishers, or the department for the commercial fishery. Many commercial fishers would say they're not doing a great job at that, but that's really what they have now become—in science, in enforcement, and in management.

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If the Government of Canada looked at the size of the recreational sport industry in Canada, including hunting and fishing, and realized what tremendous economic impact it has on both the government and on individuals, it might want to have a department of fish and game, or a junior minister of fish and game, which would bring the concerns of that industry to a cabinet table and give it the high priority it deserves. In many parts of this country it's a huge asset, and it's been part of our tourism industry. Fish and game is a huge business.

That's probably why that's happened, because the commercial fishery has taken over DFO completely and absolutely.

How much money do you think would be required to really get the salmon and trout industry here back? How much money would you need to invest in hatcheries, enhancement projects, and that type of enhancing to make sure you have a viable fishery into the future? Just give me an answer fairly quickly if you would. How much money would be required to get the thing back on track?

You mentioned several times in your paper that there's no legal fishery. How big do you think the illegal fishery is in salmon, trout, and other species here in New Brunswick?

Mr. Fred Wheaton: On your last question, how big the illegal fishery is, I think the answer to that is that nobody knows. I'm sure DFO doesn't know, because it has cut back its field staff by about two-thirds over the past 15 years or so. We don't know, because poachers don't normally operate when people see them. I would suggest to you that poaching in this province is probably a hell of a lot less now than it was 15 or 20 years ago.

To your question on what it would cost to restore our fisheries, again that's anybody's guess. I don't know if there would be enough money to do anything for the Atlantic salmon. I think we've got a problem in the North Atlantic. It may or may not cure itself. I think it's environmental, and I think most salmon scientists would agree with that. We have rivers that are turning out really good numbers of smolts going to sea. Our juvenile levels in the Restigouche and Miramichi, our two big systems, are far better than they were 20 years ago, and they continue to be stable or to increase. So we're turning out the little fish, the Atlantic salmon. We think they're getting to sea, but we know they're not coming back in the numbers they should be.

I don't know how much money you can throw at that or if it's practical to spend a lot of money on research in the North Atlantic to determine what the causes are. If you find the problem, will you be able to fix it?

Mr. Charlie Power: Yes, there may not be a solution.

Mr. Fred Wheaton: Where do our trout and other species go? Three hundred thousand dollars a year would run the three hatcheries that have been either closed or divested. A hundred thousand dollars a pop a year would give you a minimal operation that would do a pretty good job in a lot of cases.

Mr. Charlie Power: So it's not big money.

Mr. Fred Wheaton: No, but I think we need to put some money into more protection. We still have some problems out there with enforcement, and I would like to see that effort beefed up or at least brought back to some heart rate of what it was a few years ago. How much? I don't know.

The Chair: Thank you, Mr. Wheaton.

Mr. O'Brien, you have the last question.

Mr. Lawrence D. O'Brien (Labrador, Lib.): Thank you.

Mr. Wheaton, I'm from Labrador, so obviously I know the wildlife side of things pretty well, relative to the life I live. I have some of the same concerns you are expressing.

In terms of the question on Atlantic salmon, who knows? We're all getting pretty good parr and smolt coming downstream, but it doesn't seem to bring back the same results one, two, three, or four years later. I'm sure there are a lot of factors, from seals to seagulls to God only knows.

My concern is along the same lines you've expressed some thought on and had some discussion back on, particularly with Mr. Power and Mr. Steckle. It's along the same lines.

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We feel in my tip of the woods, if you can use that word, that the signs and the enforcement are two very fundamental issues relative to a number of these issues. I know you have addressed that, and I know you made some points on it, but I would like to get your view.

I have heard the point the honourable member across talked about, that maybe there should be a junior secretary of state or junior state department on game fish, because relative to the attention that's being paid to the commercial and corporate sectors of the fisheries we seem to find ourselves, as recreational fishers and as people trying to protect the recreational resource, for lack of a better term, at the bottom of the barrel.

Can you expand a little more on that thought process of what you've heard from other members and what I'm expressing as well?

Mr. Fred Wheaton: I really never had considered a junior ministry or some other way or branch of the Department of Fisheries and Oceans, but it certainly sounds like an intriguing idea. My general view would be anything that can be done to raise the issue of the true value of the recreational fishery on Kent Street in Ottawa would certainly be a help, because it doesn't seem to have much priority there now.

The Chair: Thank you, Mr. Wheaton. We will have to leave it at that and go to the final witness of the morning from the—

Mr. Fred Wheaton: Mr. Chair, may I leave you with one question?

The Chair: Yes.

Mr. Fred Wheaton: We have reviewed the last document from the court regarding the clarification of Marshall. It seems to me what we seem to be reading in there is that these treaties that are referenced were signed with individual aboriginal communities, rather than one treaty applicable to all. I've been trying to find out, and no one can tell me so far—I'm sure I will find out in a little more time—if these treaties that were signed between the bands and the crown have application to the bands here in New Brunswick as well as the ones in Nova Scotia.

Mr. John Cummins: We got a list of those this morning from Professor David Bell of the University of New Brunswick. There is a list attached to that. If we have an extra copy we could give it to you.

Mr. Fred Wheaton: I'd appreciate it.

Mr. John Cummins: I'm sure that details and will verify that indeed it does cover bands in New Brunswick.

The Chair: The clerk will get you a copy, Mr. Wheaton. Thank you very much.

Mr. Fred Wheaton: It is much appreciated. Thank you for the opportunity.

The Chair: Now we have, from the Acadian Groundfish Fishermen's Association, Mr. Gauvin. Welcome, Alyre. The floor is yours. I don't think your submission is too long, so you probably want to either highlight it or read it and then we will go to questions.


Mr. Alyre Gauvin (President, Acadian Groundfish Fishermen's Association)): Thank you, Mr. Chairman. Good morning everyone.

I don't have a very long document. If I had heard earlier on the last two statements that have just been made and if I had known that I'd be debating the Atlantic fisheries management and conservation modes as to which are good and which are not, it doubtless would have been much longer.

Today, I only expected to discuss the impact of the Marshall judgment and the position we should adopt concerning this judgment. Anyway, it might be an idea to throw the ball back to you, members of this committee, and ask you if you have anything new to add to the discussions that have been going on way too long now concerning our present management and conservation modes.

When I hear those things, I still remember that the Canadian government had established a 200-mile economic zone in the mid-70s. Probably the government's intent, as well as the industry's, was to keep away from our shores the fishers from foreign countries to show them that we could go and catch the fish there and supply the world market.

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Some, like the offshore and semi-offshore boats met that challenge, the coastals having chosen to conserve the far more traditional fisheries that went back, say, 10, 15, 20 or 30 years or even several hundred years.

That said, Mr. Chairman, I'll get back to why I'm here today. I'm the president of the APPFA. The APPFA is the Association des pêcheurs de poisson de fond acadiens (the Acadian Groundfish Fishermen's Association). At this point, it represents 17 semi- offshore fishers, all under the ITQ regime. You should also know that these fishers have been the most severely affected by the groundfish moratorium since 1993.

Of the 32 we were in 1993, when the cod fisheries were closed, we're now down to 17. And when I talk about the fishers in my document, Mr. Chairman, you should also know that I'm talking about captain-owners. Those 17 fishers are all owners of fishing boats that, on average, each hire on four crew members.

Mr. Chairman, we think that we'd first have to find out what kind of participation the Aboriginal peoples want. Do they want partial participation at a subsistence level or more? In our opinion, they must clearly define their needs so we can be better prepared and position ourselves accordingly. For each one of the species, the negotiations will have to involve the Aboriginals, the government and the groups directly affected because they depend on those species.

I was saying before that I represent the group that depends on groundfish, in other words a group that only has that single licence to fish and that has been going on for dozens of years, well before the moratorium. Mr. Chairman, probably before there are tripartite negotiations, the government would have to facilitate meetings between the most interested parties, the natives and the fishers, who depend on those species.

One thing for sure: the government should never, when negotiating on one species, give away another. I'll give you a recent example; this year, actually, 1999. The Minister had decided, after having spent $550 million since 1993 for rationalizing the groundfish fishery, that we were too many fishers in that area and that we were too dependent on that resource. You told us we should be fewer and rationalize and that he would financially help us to do so.

We rose to the challenge. As I was saying before, in New Brunswick alone, we went from 32 to 17 fishers depending on groundfish. That means quite a decrease in crew members, a lot of jobs lost and also a lot of jobs in the plants.

In 1999, the department announced the reopening of commercial cod fishing in the gulf. From 32, we went down to 17; we're all under the ITQ. No matter what some may think, we liked the ITQ because it guaranteed access to a resource we depend upon.

This year, the department agreed to another way of doing things. Why? To shut up certain groups asking for integrated management coastal areas. That meant they wanted parks along some coast lines which would have allowed them to co-manage that with the federal department for the good of their fishers. That was refused for all kinds of reasons. After they presented a document that took some five or six months worth of research and other work, the department stated it could not accede to their request.

We were then told, not by just anybody but by direct assistants to David Anderson, who was the minister last spring, and other senior officials of the federal government, that our share by flotilla had to be changed. They had to decrease it to give it to a coastal group to buy peace up because those coastal fishers would not have been happy as long as they didn't get their integrated management coastal zone.

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So all that effort we put into the rationalization of our group, all the effort and all the money that were spent by the federal Department of Fisheries and Oceans and the Human Resources Development Department to rationalize the fisheries, all that was in vain because the sectors that got the major share, 72% of the quotas freed up because of our rationalization, managed to multiply by five or even by six the number of groundfish fishers during the first year that fishery was reopened, this year. They went from fewer than 100 fishing in 1993, the year of the moratorium, to over 600 this year.

What I fear today and what I presume, Mr. Chairman, is that during the departmental negotiations concerning certain species and cohabitation between Aboriginals and fishers, the coastal fishers will be the first to be consulted because of accessibility and ease of access.

Those who know fishing a bit more—maybe Mr. Bernier himself who represented semi-offshore groups—know that mid-shore fishery is a lot like offshore fishery. It requires investments in bigger boats. The fishers who go to sea for the whole week instead of a single day need far better knowledge of the area. It's not easy for anybody. I'm not questioning the intelligence or the capabilities of anyone. It's a matter of skill. It's a matter of mastering your craft. It's a lot more complex.

If the department is going to negotiate, in the lobster sector, for example, with the inshore fishers and suggests they make generous room for the Aboriginals and not to worry about the resource because they'll be given something else taken from someone else... Robbing Peter to pay Paul, in my opinion, isn't a good way to manage the Atlantic fisheries. It's not a proper conservation method nor is it a good method to maintain economic stability in a region. Believe me, what was done to the fishing fleets robbed us and we're going to have trouble digging ourselves out of that hole, Mr. Chairman.

The APPFA recognizes the Supreme Court decision as well as the acquired rights of the Aboriginals. Once again, Mr. Chairman, we have been kept in ignorance, probably by the government of Canada, about this whole matter for too long. When the government of Canada patriated the Constitution in 1982, I am sure that someone must have been aware of these things. We in the fishing industry, an organization of fishermen working for the welfare of our groups and the advancement of our sector, were never informed about what could happen one day.

We suddenly woke up one morning to find out about a ruling that will probably result in a great upheaval. I hope that the government of Canada will at least have the decency and the common sense to assume its responsibilities. I hope that this time it will make it possible for us to sit down at the table with these people and to negotiate in good faith concerning their rights. There is no need to assume today that because they have these rights, we must simply withdraw from the field and allow them to take over. I don't think that would be acceptable.

If the shares allocated to a fleet or to a province are to be modified to make some room for them in the fishery of the year 2000, that is perfectly understandable but it must not be done without consulting the parties that are already present and that have built up this industry for so many years. We have built up the industry over the years and we expect our rights to be respected.

We were told, and I think the Fisheries Act is quite clear, that our licences as non-native fishermen were privileges. That may be but the industry that we have built is an achievement and a right that must be recognized. There is no getting around it, Mr. Chairman. Thank you.


The Chair: Thank you, Mr. Gauvin.

Have you had any discussions yet—or any invitations to discuss—with Mr. MacKenzie, who is looking at some of these issues as well and is the chief federal representative on the Marshall decision?

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Mr. Alyre Gauvin: No. We did not receive any invitation to meet them.

Mr. Chairman, we are a very small organization with very limited financial means. Forums such as this are very often the only opportunities we have to make our point of view known.

I don't know whether there is a lack of communication between the department and the parties but it was only through the media that we learned about Mr. Mackenzie's appointment and even your visit to the Maritimes. I think there is a huge communication problem. We are always faced with a struggle to make ourselves heard and get our point of view across. No one ever takes the initiative of asking us what we think. I assume there is a problem somewhere. Is there something about me that disturbs too many people? I sometimes wonder. People sometimes say that to me but that is another story.

You should also know, perhaps you already heard, that a new council is in the process of being set up. It is an organization we are interested in, namely the Atlantic Fishery Industry Alliance and we intend to become a member. They have already met Mr. Mackenzie and Mr. Thériault and it is our intention through this alliance to attempt to meet them.


The Chair: Thank you. And we're certainly glad to have you here to speak your views, Mr. Gauvin.


Mr. Bernier.

Mr. Yvan Bernier: I'd like to greet the witness.

It is true that in a previous life I worked in the field of fisheries for a fishers' association equipped mainly with midshore vessels but when I... I think a bit of background is necessary since we started with a witness who spoke about past experiences this morning. In this midshore association there were boats that fished using a long line, something that is not mobile gear.

I already mentioned that at one point we are going to have to settle this debate between the two schools of thought. We won't be able to do it today. Yet it is important to mention this subject because we are going to have to determine, insofar as possible, what type of gear can be used for sustainable fishing. That is something that will have to be done.

I'm going to say something that may hurt my friends and I hope they won't become my former friends but in view of the scarcity of our present resources, it will be necessary to decide when we start fishing again whether we will make less use of certain types of gear. That is something we will have to do.

Since we do not all share the same views on this subject—I can see Mr. Stoffer—, I would like the witness to repeat for the members that when they began working under an individual quota, it was on the basis of their previous volumes. People must understand that this management tool was developed because the situation at the time was one of dire poverty.

I'd also like the witness to remind us why negotiations must take place for each of these species. Moreover, taking into account the history of their association and their activity, and in referring to the past while realizing full well that things cannot continue as before, I would like him to tell us whether the group that he represents, which is an open-minded one, would be willing to change their fishing gear if necessary. Is it something you are willing to consider?

I think that would be good to start off the debate since I'll have to ask the question of both groups. Thank you.

The Chair: Mr. Gauvin.

Mr. Alyre Gauvin: First of all, since you talked about history, Mr. Bernier, and you said that we were in dire poverty, let me specify that the individual transferable quota was adopted following the first crisis, particularly in the groundfish fishery, that took place in the 1970s and caught many people unawares. The difference at the time was that there were many sectors where species were not fully exploited and this allowed certain fleets to fish other species without causing any great disturbance.

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Around the middle of the 80s, because of the way in which things were being managed, we realized that we were heading towards... I mentioned in my presentation that the Canadian government and the fishermen had to demonstrate to the foreign fishermen that they were capable of fishing to supply international markets. We proved to be far too capable. We were very quickly too capable for the good of the species themselves. Technology developed so quickly that we were unable to assess the impact of this kind of fishery.

Around the middle of the 80s we realized that something had to done. Was it the gear that was dangerous? Was it the type of management or the fishermen? Where exactly was the problem?

The main problem as we saw it was the economic one: people had to catch their share of fish as quickly as possible before everything came to a stop. That what to some extent the approach we adopted. Offshore and midshore fishers decided that they had to find a way of ensuring a catch rate sufficient to provide a certain income while recognizing all of the fishers involved rather than continuing this unstoppable scrabble for resources. That was our point of departure. We asked ourselves: “What have been the historic landings for each fleet in each province? What has been done by each of the fishermen over the years to develop this fishery?”

For example, the group I represent is part of an ITQ group. Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland, South West Nova Scotia, all these midshore sectors said that they would calculate the individual quotas based on the historic fishing activity of each of them. For example, 26.98% of the overall quotas allocated in the Southern Gulf belong to our ITQ group. Historically, our landings accounted for 26.98% of the total and this was our share. For example, this year, we had a quota of 6,000 tons in the Southern Gulf; a share of 26.98% of this quota should belong to us and it is divided among the participants in this sector of the fleet. That is the method we use.

As for the matter of fishing gear, I'm sorry, Mr. Bernier, but I'm still convinced that I will be unable to convince you today about the best gear to use. I challenge any user to do the same thing. I have more than 30 years experience as a fisherman and I fished in all sorts of places. I've been practically to the North Pole and the South Pole. There is no one on this earth who can claim that a particular type of gear is more destructive than another type but people can certainly have some doubts about the capacity of the man using this gear. The question of the user is something that could be much more easily debated. A rifle can be very dangerous in the hands of someone with no experience or quite safe in the hands of a man who knows what he is doing. The same holds true for fishing gear.


The Chair: Thank you, Mr. Gauvin.

Mr. Cummins.

Mr. John Cummins: I think your suggestion that you would align with the Atlantic Fishery Industry Alliance is a good one, because I think that if fishermen's groups work together it will lead to a quicker resolution of the problem. I think, as well, it prevents the government from playing one group off against another, so it is a valuable movement.

That being said, I was wondering if your group has discussed the issue of accommodation with the native groups that may wish to participate in your fishery. If you have, in what direction would you see that going? How would you resolve that problem within your group?


Mr. Alyre Gauvin: I did discuss it on the phone with a particular group, Ms. LaVallée's group. We talked about meeting to discuss how we would take an initial approach to the matter. It is my wish that we continue and I think that both parties are interested in doing so.

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I don't have any solution to propose today. I cannot come up with a solution alone. This has to be done through discussion between the two parties. I have certain ideas about the way in which it could be done. One example would be to introduce some rationalization in the sector by the fishermen themselves, an approach that was supported by the federal government. People may choose to earn their living from fishing but it also happens that they remain because they have no other choice. They may no longer be able to afford to leave. I'm convinced that the department could come up with solutions for this problem.

Another thing is that there are too many back-pocket licences in the Maritimes. There are far too many fishermen who keep their licences in their back pocket in the hope that the situation will improve. Should this happen, they would be ready to start fishing again. This has a punitive effect on those who are developing the industry, who are developing the markets and expertise. They are being punished because they've done all this work to develop the industry. As soon as it starts to pay off, people come and say: "I've got my licence in my back pocket, I'm going fishing too." That's what happened this year in the inshore fishery.

I'm sorry I can't give you precise figures. I haven't yet been able to obtain the official figures. In the Southern Gulf, the number of inshore fishermen went up from 86 in 1993, the year when the cod fishery was shut down, to 586 in 1999. When the cod fishery was shut down in 1993, there was a quota of 42,000 tons. This quota was reduced to 12,000 tons with a price of less than 40 cents a pound. This year we've been talking about a quota of 6,000 tons but with a price close to a $1 a pound. It looked like it might be lucrative. In your opinion, who are the ones that stand to lose the most? Those who arrived in 1993 or those who made the effort to stay in and wait until the cod came back and to tighten their belt for six years? Who are the ones that are being the most penalized today?

The Minister should start by putting a stop to this type of situation. Let him cancel these back-pocket licences, in the groundfish fishery or for other species. Mr. Brian Tobin attempted to do this at the beginning of the 1990s when he was Minister of Fisheries. Unfortunately, the big bad wolf, otherwise known as politics, made its presence felt and put an end to the practice because of its harmful political impact. So who is footing the bill today? The industry and those who spent time and money in order to stay in the game.


Mr. Peter Stoffer: Thank you for your presentation, Mr. Gauvin. I just want to make it absolutely clear why I'm against the ITQ system. It's not the I and the Q, it's the T. That's the part that concerns me the most.

As you may know, on the Banks, Clearwater has seven out of the eight scallop licences. My question to you, or anyone else—and you don't have to answer, of course—is how did they get those? People could say it was through the market system and everything else, but it's the fact that the concentration of those licences could be by one individual or one company.

That's not my question; my question for you is on the conservation side. Whether you're an ITQ, IQ, or lobster fisherman, you need access to fish, and those fish need to have habitat in order to survive.

In the gulf region, where you operate, we know oil and gas leases are being given now to companies like Corridor Resources off the Cabot bluff. We've seen plans where they eventually want to start seismic drilling in the entire gulf. If they find something, they may have the right to actually drill in the heart of lobster and cod spawning grounds.

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Are you aware of these concerns? You said the government should be a role player, in terms of the negotiations. But what role do you see the Province of New Brunswick, for example, playing in alliance with P.E.I. and Nova Scotia in working together, not only with your organization but with other organizations, in the post-Marshall era?


Mr. Alyre Gauvin: Mr. Stoffer, before answering that question, I'd like to come back to your concern about the ITQ. A number of administrative rules were established for the ITQ. For example, a rule prohibits individuals from exercising a majority control in this area. A certain maximum is set. It is not possible to have more than a certain number of tons for distribution to avoid anyone taking control. If I won the 6/49 and suddenly decided I wanted to buy everyone out, I would not be able to do so. There is a limit that was agreed upon by the industry and the government.

To come back to your question about the provinces, I think that the provinces should play a very important role in this area. I think that the responsibility of the provincial governments is to ensure some economic stability in the case of upheaval or changes resulting from negotiations or agreements between the Aboriginals and the traditional fishermen.

Moreover, negotiations to find a way to allow the Aboriginals and traditional fishermen, as I call them, to find a way of living together could take place region-by-region or province-by-province rather than for the entire Atlantic region. The needs of the Aboriginals and those of the traditional industry in New Brunswick are very different from those of people in Nova Scotia, Prince Edward Island, Newfoundland or Quebec and it's perfectly normal. For example, in South West Nova Scotia, requirements are very different from those in Eastern Nova Scotia, Cape Breton etc. The same applies to New Brunswick, for those living on the Gulf as opposed to those living on the Bay of Fundy.

I recognize it is not a small undertaking but it is something we must do. We will have to engage in regional or local negotiations. We may perhaps agree on certain principles that might be applied generally throughout the Maritimes but at the outset, the regions will have to sit down individually.


Mr. Peter Stoffer: My last question, Mr. Gauvin, is on those back-pocket licences you referred to. In my consultations with other fishermen across the country, they are also aware of a lot of people who have licences who haven't fished for years. They are just waiting for the price to be right and then they'll go back in, putting more pressure on the stocks.

If we were to get rid of the back-pocket licences on a sort of use it or lose it principle, would you put a time limit on when they'd have to use those licences—if they don't use them within three years from today's date they would lose them? Say you put the rule in today that effective now, all people with fishing licences who didn't exercise their licensed right to fish within a year from now would lose their licences with no compensation. Would you put a certain time limit on that?


Mr. Alyre Gauvin: It's very difficult to set a time limit. It's not easily done and I don't think it can be done simply because it pleases me or someone else or it is to someone else's disliking.

Let me give you an example. This winter several groups asked to be consulted by the Groundfish Advisory Board. When we begin our talks about conservation, about sharing arrangements with the Aboriginals and the groundfish, there will be around the table lots of groups made up solely of fishermen with back-pocket licences but the government will pay as much attention to them as those who built up the industry and who have been working steadily year after year to ensure adequate conservation on sound economic principles.

Conservation is a fine principle. The best conservation measure would be simply to shut down the entire fishery for all species in the Atlantic but we have an economy that depends on these fisheries and we have to attempt to reconcile the two. That is the problem we face.

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Will the department simply say to these back-pocket licence holders: “Your time is up, you won't have your licences any longer”, or will the Minister tell them: “You are only potential players, you are not active players; that means that you can rely on the other groups to look after conservation, production, etc.”? That is the type of question that we are going to have to ask ourselves in deciding on our approach.

Thank you.


The Chair: Thank you, Mr. Gauvin. I don't believe there are any further questions. We thank you for your presentation.

The committee will adjourn until 1:15. Check-out time is not until four o'clock, so you should be okay with your luggage.