FOPO Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, June 07, 2001

• 0904

[English]

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

I think that those who are here are well aware that we have with us this morning the Minister of Indian Affairs and Northern Development, and with him is Tom Molloy.

I might say, Minister, we've been trying to get you before the committee to talk about the Marshall decision from your perspective, but we've experienced difficulties due to your scheduling and sometimes ours. We certainly welcome the opportunity to get together this morning. The floor is yours. Welcome.

• 0905

Hon. Robert Nault (Minister of Indian Affairs and Northern Development): Thank you, Mr. Chairman. I welcome the opportunity to address the Standing Committee on Fisheries and Oceans.

I'll get right into my prepared comments, and then I will be open to discussion.

I have with me our top federal negotiator, Tom Molloy, who has been asked to represent the Government of Canada and the Minister of Indian and Northern Affairs in the negotiations of treaty and aboriginal rights in the Atlantic region.

As you know, in the Marshall decision the Supreme Court of Canada ruled that the beneficiaries of the 1760-61 treaties have the right to provide for their own sustenance by taking the products of their hunting, fishing, and gathering activities and trading them in the pursuit of a “moderate livelihood”.

In the weeks following this important decision, I, on behalf of the Government of Canada, started discussions with our aboriginal and provincial partners on the east coast to explore possible long-term processes to address the implications of the Marshall decision and other uncertainties regarding aboriginal and treaty rights to land and resources.

In February of this year, Minister Dhaliwal and I announced the second phase of the federal strategy to respond to the immediate and long-term pressures arising out of the Marshall decision. Following this announcement, my colleague and I have renewed our efforts to engage the Mi'kmaq and Maliseet people on the east coast in addressing their aspirations, including the full implementation of their treaty rights affirmed by the Supreme Court of Canada.

The Minister of Fisheries and Oceans and I have complementary roles and responsibilities in addressing the implications of the Marshall decision. I understand that Minister Dhaliwal appeared before this committee on April 3 and described how he has been working to facilitate the immediate participation of aboriginal groups affected by the Marshall decision in the commercial fishery.

As Minister of Indian Affairs and Northern Development, I am responsible to find long-term resolution to issues of aboriginal and treaty rights. To lead these long-term processes, as I mentioned a few minutes earlier, I have appointed Mr. Tom Molloy to represent Canada in exploratory discussions and negotiations with the Mi'kmaq and Maliseet and affected provinces of the east coast.

To date, we have successfully engaged our aboriginal and provincial partners in Nova Scotia in a broad negotiation process. We have also approached our aboriginal partners in Quebec, Prince Edward Island, and New Brunswick to begin exploratory discussions on issues of aboriginal and treaty rights and have received positive signals from most of these groups to date. I am also, Mr. Chairman, continuing to encourage provincial governments to participate in these discussions.

Mr. Molloy is also responsible for negotiating with the Mi'kmaq and Maliseet on other measures within federal jurisdiction, beyond fishing, to address the immediate implications of the Marshall decision. Mr. Molloy has been working, and will continue to work, closely with the federal fisheries negotiator appointed by the Minister of Fisheries and Oceans, who is responsible for community-level negotiations on short-term practical fisheries issues.

I have also asked Mr. Molloy to begin consultations with our Mi'kmaq, Maliseet, and provincial partners on the possible creation of treaty commissions or a treaty commission. These consultations should begin this summer and will serve to demonstrate the importance of the peace and friendship treaties and the ongoing treaty relationship between the aboriginal groups and the crown.

As we move forward with the long-term processes, it will be critical to take into consideration the needs and interests of third parties and the general public. I realize that with the beginning of the new fishing season, there is mounting uneasiness regarding the possibility of tensions and conflict escalating on the east coast. As part of the longer-term Marshall response, efforts are being made to bring communities together to discuss their common future. The longer-term approach we are taking in this second phase will help native and non-native communities move forward with greater certainty.

The real solution to outstanding issues of aboriginal and treaty rights lies in broad negotiation processes. However, we must be realistic: reaching long-term agreements on these fundamental issues will take time. In the meantime, the federal government must respect the treaty rights of the Mi'kmaq and Maliseet affirmed by the Supreme Court of Canada in the Marshall decision.

• 0910

This is what my colleague, the Minister of Fisheries and Oceans, is attempting to do through the negotiation of short-term fisheries agreements. In my view, the Marshall decision is not just a legal issue, but one of social justice and quality of life.

I remain committed to resolving aboriginal issues through dialogue and negotiation. I strongly believe that it is our responsibility, not the role of the courts, to define the relationship between aboriginal people, governments, and Canadians in general. The long-term resolution of these issues is key to creating a just and fair relationship with first nations in the Maritimes, along with a viable economic base on which they can build.

I maintain that through honourable, respectful, and good-faith negotiations we will be able to resolve issues that concern all the affected parties.

Before concluding, I'd like to comment on a few issues raised by some members of this committee in previous sessions.

I understand that specific questions have been raised regarding the number of historical treaties that exist in the Maritimes. Who signed these documents? And who are the beneficiaries of these treaties today?

The British crown signed a number of historical documents with the Mi'kmaq, Maliseet, and Passamaquoddy people between 1725 and 1779. These historical documents are commonly referred to as treaties. But only three of them, the two LaHave treaties of 1760-61 and the Cope treaty of 1752, have been formally recognized by the Supreme Court of Canada as having the constitutional status of treaties.

I understand that copies of the LaHave treaties have already been provided to this committee by my colleague, Minister Dhaliwal. Copies of the remaining 1760-61 documents, whose terms are essentially the same as the LaHave treaties, can also be provided on request, but with the understanding that their status under section 35 of the Constitution Act of 1982 has not been determined by the courts. Copies of the other known historic documents in the Maritimes can also be provided on the same understanding.

Secondly, in order to understand which aboriginal groups signed historical documents with the crown, it is important to consider the geographical boundaries and political structures of the Maritimes in the 1700s.

In the Marshall decision the Supreme Court noted that

The British signed a series of agreements with individual Mi'kmaq communities in 1760 and 1761 intending to have them consolidated into a comprehensive Mi'kmaq treaty that was never in fact brought into existence. The trial judge found that by the end of 1761 all of the Mi'kmaq villages in Nova Scotia had entered into separate but similar treaties.

It is important to note that during the colonial period Nova Scotia was considered to include modern-day New Brunswick.

The last question is, who are the modern beneficiaries of the 1760-61 treaties? The Supreme Court of Canada in the Marshall decision did recognize the difficulty in connecting the signatories of historic treaties to particular contemporary first nation communities. This is due to migration of first nations, intermarriage, government policies creating bands, and other initiatives, such as the centralization of reserves.

Despite these difficulties, the federal government is of the view that the communities that are the modern manifestations of the collectives who signed the original treaties are the beneficiaries of the rights affirmed by the Supreme Court in the Marshall decision. The federal government believes that these collectives are likely represented today by the Indian Act bands. However, there may be other individuals who could also be included by demonstrating a connection to the collectivity.

• 0915

I believe that adopting a strict and narrow interpretation of the Marshall decision will only lead us to more litigation. It is important to understand that the peace and friendship treaties did not include a cession of rights to lands and resources by the aboriginal groups. And today these groups continue to assert that they have other aboriginal rights and title throughout their traditional territory, beyond the Marshall treaty rights.

The courts have repeatedly encouraged governments and first nations to resolve outstanding aboriginal issues through negotiation rather than litigation. That is what the federal government is doing by addressing its treaty obligations and operating within the spirit of the Marshall decision to address other potential rights that may continue to exist.

Mr. Chairman, I hope these comments have addressed some of your concerns. And I certainly would now be open and pleased to answer any of your questions in the time I have.

Thank you.

The Chair: Thank you, Mr. Minister. We certainly appreciate the fact that you've addressed in your presentation some of the major concerns the committee has expressed in the past.

We are very tight for time, so I'd ask members to be as concise as they can with their questions. The minister does have to leave for a cabinet meeting, I believe, at 10 o'clock.

Mr. Cummins is first.

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

Minister Nault, in the second paragraph you say that

...the 1760-61 Treaties have the right to provide for their own sustenance by taking the products of their hunting, fishing and gathering activities and trading them in pursuit of a “moderate livelihood.”

And you say that in the Marshall decision the Supreme Court of Canada ruled this, the beneficiaries of these treaties, etc....

I have some difficulty with that. If you look at the head note of Marshall two, it says quite clearly that

The Marshall appeal...related to fishing eel out of season contrary to federal fishery regulations. In its judgment of September 17, 1999, a majority of the Court concluded that Marshall had established the existence and infringement of a local Mi'kmaq treaty right to carry on small scale commercial eel fishery.

I can go on and on through that Marshall decision, and nowhere do I come to the conclusion that the beneficiaries of the 1760-61 treaties will have the right to provide for their sustenance, as you suggest. So I don't know where you come up with that notion. I'd sure like for you to make that clear.

The Chair: Mr. Minister.

Mr. Robert Nault: As I had said in my opening comments, in order to understand the relationship with the first nation people as it relates to their treaty and our treaty obligations, you have to look at it from a very broad context and not try to define it in the very narrow parameters that my colleague is suggesting.

It could be argued, rightfully, by Mr. Cummins that the case dealt specifically with one species and that was all they were talking about. But it stands to reason that if the courts were willing to make it clear there are treaty and aboriginal rights that exist in this particular area, we could, as some people have suggested, wait for the courts to continue to define this relationship or accept the argument we have put forward as a government that there is a legal obligation to adhere to these treaties and come up with a modern relationship based on those treaties themselves. And that's been the position of the government. It's been our legal advice.

It is very similar to our colleague's home province of British Columbia: even though there were no treaties in British Columbia, there have certainly been court cases that have made it clear that aboriginal rights do exist in that province. And with the peace and friendship treaties it's also been argued that they did not extinguish their rights to lands and resources, that they were in fact just peace and friendship treaties.

The argument that is being put before you, Mr. Chairman, is that we believe it's best to enter into negotiations and come up with a long-term agreement that will meet the needs of both aboriginal people and non-aboriginal people in the Atlantic.

• 0920

The Chair: Mr. Cummins.

Mr. John Cummins: Well, the treaties on the west coast in fact dealt with specific fisheries. They weren't broad and expansive. As I'm sure you're aware, the Gladstone case dealt with the Heiltsuk natives in the Bella Coola and Bella Bella area, the central coast of British Columbia. It dealt with herring roe on kelp. It said they had an aboriginal right to harvest herring roe on kelp. Van der Peet dealt with salmon on the Fraser River.

Never has a court gone beyond addressing one fish. The primary reason for that is the notion of what constitutes an aboriginal right. An aboriginal right is defined as a practice that was characteristic of a native community prior to contact with Europeans.

You can't take this broad-brush approach that you have, and in fact the justice department is not doing so. I'm curious as to why the Department of Fisheries and Oceans and indeed your department is doing that.

Mr. Robert Nault: Well, Mr. Chairman, as I have said, and my colleague before me, we have a very fundamental difference of opinion with Mr. Cummins and his party. That's not about to change before this committee or anywhere else.

We believe we do have a legal obligation to respect the treaties and to define those treaty relationships based on section 35 of the Constitution Act, 1982. We also believe strongly that it's not the role of the courts to define a relationship with the aboriginal people. It is more appropriately done by people like ourselves who have been elected to put together the kinds of relationships and policies that will work for aboriginal people and non-native people.

So that's a very fundamental difference of opinion. Obviously I'm not going to reconcile those differences between ourselves and the Alliance before this committee, except to say we are very comfortable with our position and we do believe it is the right position to uphold. That is why we've entered into a long-term strategy of negotiations in the Atlantic, in the Maritimes, specifically based on the Marshall decision. It confirmed for us that treaty rights do exist.

They didn't go into specifics about every single aspect of those treaty rights, as is normally the case with the courts. But every single case that has been before the courts that I can recall having read in my last 12 or 13 years continuously says that in their assessment it is not appropriate for the government to continue to use the courts to define the relationship and to negotiate those terms and conditions of our relationship. To try to define those modern-day needs is more appropriately done by people such as myself and yourselves, using our negotiators, of course.

Mr. John Cummins: Certainly the purpose here is to interpret existing treaty rights and to address those—to recognize those. The court has been consistent on that. But I don't think it's in your mandate to create treaty rights or aboriginal rights.

The Department of Justice has made it very clear, for example, with regard to the lobster fishery that there is no inherent aboriginal right to harvest lobster. The chief government witness from the University of New Brunswick, Dr. Patterson, said that there was no historical evidence that natives ever harvested lobster in a manner that would allow it to be considered an aboriginal right. So we have an aboriginal food fishery that is threatened again, or it's ongoing. In fact, the Department of Fisheries and Oceans has made trap limits available to conduct this food fishery. But it's not based on a treaty or an aboriginal right; it's based on government policy. That's where I think the rubber hits the road.

The court also suggested that the result of negotiations between natives should be the reconciliation of aboriginal and non-aboriginal communities. I think what you are doing is putting up barriers when you create rights that aren't there. It leads to conflict, as we've seen this past summer in the maritime provinces and as we've experienced in British Columbia for a number of years.

• 0925

Mr. Robert Nault: Mr. Chairman, I can only comment based on my strong belief that the best approach for any government and for a society like ours is to seize the opportunity to build a relationship.

The Marshall decision showed us very clearly what can occur when we let the courts define something for us. If I can be so bold, I would suggest that government was caught with their pants down, not prepared to deal with an issue of this importance to a particular part of the country.

If we were already at the negotiating table with our colleagues, the provinces and first nations people, we would more than likely not have had the confrontation we had after we waited for the courts to rule on a particular process—that is, is there a treaty right or isn't there a treaty right? Of course the courts have said there is a treaty right, and that very much is the case, at least from the government's perspective.

The Chair: Madame Tremblay.

[Translation]

Ms. Suzanne Tremblay (Rimouski-Neigette-et-la Mitis, BQ): Thank you, Mr. Chairman.

Good morning, Mr. Minister. Thank you for finally being able to come and meet with us, because you have been invited on numerous occasions to come and meet with us, but it has never materialized.

Far be it from me to challenge ancestral rights. I think that our party's stance on this is clear: we have absolutely no intention of challenging that. I also share completely your philosophy, that is, that it is better to sit down at a negotiating table than to go to court. My father used to say to us that the worst agreement was still better than the best court case. So sitting down and negotiating is an approach that appeals to me.

Now, what bothers me is the things I hear in my riding office. For instance, since I became the Fisheries spokesperson, some people have told me that they wanted to purchase a fishing licence and a boat, at a particular place, which were fairly valued at $800,000. But it was the government that went and bought them for native people for $1.5 million.

What is a bit upsetting, for us anyway, is that you apparently offered higher prices and made offers that are so enticing that people are not interested in selling, pardon me, to whites. They prefer to sell to natives because you are going to pay and you are going to pay twice as much, or almost. This is one thing that is upsetting.

The second thing that is upsetting is that if natives want us to respect their ancestral rights in negotiations, they cannot expect to have the best of both worlds. What upsets people a bit is that they get the impression that we have such a guilty attitude at the negotiating table, thinking about what we have done to them, that we are prepared to give away everything in order to be forgiven for everything. This is sort of the impression given by the approach taken in negotiations.

Are you able to confirm to us that you really paid much more for the boats than they were actually worth or, on the contrary, demonstrate to us with documents how much the boats and licences were valued at and how much you paid for them?

[English]

The Chair: I believe some of that area is probably under the jurisdiction of the Minister of Fisheries and Oceans.

Mr. Robert Nault: Mr. Chairman, you're absolutely right. The Ministry of Indian Affairs is not involved in the short-term process, as we like to call it, of giving access to aboriginal people in the fishery. So I would not have that information on the costs.

In discussions with the Minister of Fisheries and Oceans, one of the reasons why we have wanted to enter into, without prejudice, a three-year agreement is to get away from this whole process of driving up the costs of buying access into a fully subscribed industry. We all understand that. But I don't have the details, Madam Tremblay, and I'm not involved in that.

• 0930

I've been given the task for the government to look at the long-term implications of Marshall and to also make ourselves available to sit down and negotiate with the Mi'kmaq and Maliseet people, particularly in the areas where we think Marshall applies. Our understanding is this will be Nova Scotia, New Brunswick, likely Prince Edward Island, and likely the Gaspé. We are in exploratory discussions with the first nations in the Gaspé. We will be entering into discussions, I understand, with the first nations in Prince Edward Island to do more research as to whether there is a treaty right in those particular areas. And we are formally in discussions and negotiations in Nova Scotia. We are very likely, Mr. Chairman, I think it's safe to say, going to be into exploratory discussions in New Brunswick with the participation of the New Brunswick government.

We have had, I think, some positive discussions with those governments. I have also been in contact and talked directly to the Quebec government about the relationship with the first nations in the Gaspé. We're pretty comfortable that we understand each other and that research needs to be done in this regard. So those exploratory discussions will be ongoing.

But that's really the role of the Minister of Indian Affairs, not the short-term processes, as we like to call it, of access to the fishery in order to move towards what people have been coining “a moderate livelihood”.

The Chair: Thank you, Minister Nault.

I might say that after the minister leaves, Mr. Molloy will be still here if we want to expand further on some of those points the minister raised.

We turn then to Mr. Farrah.

[Translation]

Mr. Georges Farrah (Bonaventure—Gaspé—Iles-de-la- Madeleine—Pabok, Lib.): Thank you, Mr. Chairman.

Further to Ms. Tremblay's comments, I agree that there is dissatisfaction or misunderstanding concerning the purchase of licences.

When the minister appeared before us a few weeks ago—a month or a month and a half—in connection with the Marshall decision, I pointed out to him that the Supreme Court decision may repair an injustice, but the impression that remains is that it is creating another one. Repairing an injustice by creating another one creates a new set of problems and does not necessarily settle the problem, which we know is very complex.

That is my question. In the area of crab, for instance, in zone 12, there are business people, fish factory owners who do not know from one year to the next how much crab they are going to be able to process, since negotiations often take place at the last minute. So there are licences that switch from white fishers to native fishers at the last minute.

What we do not know, however, is how much fish and shellfish should be granted to native people in response to the Supreme Court decision, to comply with the Marshall decision. Consequently, no one knows what the target is, and from one year to another, the resource allocated to the white communities is whittled away. We understand that the injustice done to natives has to be repaired, but if I take...

[English]

The Chair: Georges, I don't want to interrupt, but at the same time I don't want you to spend a lot of time on a question that I know this minister can't answer. That's one of the difficulties we have. We tried to get both ministers here together, and it proved impossible. But the area you're delving into is strictly related to the Minister of Fisheries. Minister Nault's area is on the broader discussion, whereas the Minister of Fisheries has responsibility for the negotiation of the treaties relative to the fisheries. So keep that in mind.

[Translation]

Mr. Georges Farrah: Agreed, Mr. Chairman. The Minister of Indian Affairs and Northern Development must be aware, though, that at some point a target has to be established. He too is at the negotiating table. I think it is important to draw his attention to this issue on which I would like to have his point of view, because right now there is no target. We do not know how long this way of doing things will go on, which gives rise to flagrant injustice. It is important to emphasize it. I would like to have his comments on this.

• 0935

[English]

The Chair: Mr. Minister.

Mr. Robert Nault: Well, if I understand correctly what's being asked, one of the fundamental concerns of the non-native people in particular is, and continues to be, the belief that in order to meet our obligations under Marshall and the moderate livelihood, it would relate specifically to the fisheries.

I have said, as have others, on a number of occasions that Marshall was not just about fish. To talk about the moderate livelihood, we're not suggesting that we would have to deal with our obligations just through fisheries. It would have to be a broader context of building an economy for first nations people in the Atlantic, in the Maritimes.

In the short term, I accept the frustration of many that there is no clear direction as to where this will end up sitting when we're all completed with our negotiations, which will take a number of years, in my view. But again, I would like to make it very clear from the government's perspective that why we have a much broader long-term negotiation is to deal with our treaty obligations, not just from the fisheries perspective.

There is no belief, I hope, around this table, or at least in my mind, that we will be able to meet our treaty obligations by just trying to subscribe to the fisheries itself and the moderate livelihood argument. We are certainly looking to other particular areas of jurisdiction within the federal government to manage that.

I don't know, Mr. Chairman, very much about crab and zone 12—that's for sure—because that's not my jurisdiction as the Minister of Indian Affairs. Our negotiators do communicate on a regular basis, do talk to each other. Mr. Molloy and Mr. MacKenzie have had an opportunity to discuss on occasion the whole issue and relationship between the short-term process with fisheries and the longer-term process we're entering into. But we're at early days in our discussions of the long-term process.

The Chair: Thank you, Minister.

I understand you're sharing this time, Mr. Farrah and Mr. Assadourian.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): Thank you very much, Mr. Minister.

I have three quick questions. First, were there any treaties to do with fisheries between aboriginal nations and provincial governments anytime from 1725 up to now?

Secondly, could we have updates on the negotiations from Mr. Molloy? How far have we gone, and where are we now?

Thirdly, Mr. Minister, on page 4, second paragraph, you say:

I have also asked Mr. Molloy to begin consultations with our Mi'kmaq, Maliseet and provincial partners on the possible creation of Treaty Commission(s).

Can you expand on that too, please?

The Chair: Thank you.

If you can fit them in within the timeframe, we'll let you answer. Mr. Minister.

Mr. Robert Nault: Would you repeat the first question?

Mr. Sarkis Assadourian: Were any treaties signed between the concerned provincial, federal, and aboriginals since 1725?

Mr. Robert Nault: The answer to that is no, as far as I'm aware. There are no treaties signed between the provincial governments. You're talking about somewhat of a tripartite treaty arrangement.

Mr. Sarkis Assadourian: For just provincial and aboriginal.

Mr. Robert Nault: I would say the answer to that is no.

I could double-check for you, but as far as I know there are no treaties signed between the provinces and the first nations. In this case, we're talking about the British crown in those days, and there have been no modern-day treaties signed.

Mr. Sarkis Assadourian: From 1867 onward there were no treaties.

Mr. Robert Nault: None.

The Chair: On the second question, an update on the negotiations, can we hold that one until after the minister leaves? Then we'll come back to that.

Mr. Sarkis Assadourian: The third question—

Mr. Robert Nault: On the treaty commissions.

Mr. Sarkis Assadourian: —tripartite commissions.

• 0940

Mr. Robert Nault: One of the issues, of course, of fundamental importance to Canadians and to first nations people themselves is the respect for our treaty relationship. This is a request I very much support. If we want to build a relationship with first nations people, I think it's important for people to be educated and to do research on our treaties.

I go back to my opening comments. There have been a number of agreements that have been signed between individual first nations and the crown that are not at this point considered by the Supreme Court to be treaties. Do we wait until we have those defined by the courts, or do we sit down and have these discussions through a form of treaty commission, do some research, and make some decisions on our own as a Canadian people as to how the relationship would unfold?

So we see the treaty commission as having sort a dual role. One is educating Canadians on our treaty relationship, so we better understand it, and this is an attempt to have treaty commissions right across the country, not just in the Atlantic. We have a treaty commission, as you may well know, in Saskatchewan. We have a treaty commission in British Columbia. We have discussions going on now with the Alberta government on a treaty commission in Alberta, we have discussions going on now with the Manitoba government on a treaty commission in that province, and we have had preliminary discussions with the Province of Ontario.

So the whole objective is to build a better understanding of our relationship, and that's why we're having these kinds of discussions about a treaty commission, what its role would be, and what kind of parameters it would be structured with. That's the basis of why we think treaty commissions are important in the Atlantic.

One of the arguments, of course, we're confronting with a lot of people who have a difference of opinion— there are some around this table—is that we should just let the Supreme Court define these treaties for us and then enact them. Quite frankly, Mr. Chairman, I think that would be a sad state for the Government of Canada and the Canadian people, simply because then you are abrogating your responsibilities as elected officials to make the right decisions on behalf of Canadians. It could be argued—and I would say this openly in front of this committee—that some of the decisions would be taken for policy reasons, not always just for legal reasons. Building a relationship politically is not just about the law, it's about people working together, living together, and making progress, and I think that's part of the responsibility of elected officials.

The Chair: Thank you.

Mr. Lunney.

Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance): Thank you, Mr. Chairman. I have just one question, and then I'll defer to my colleague Mr. Cummins if there's time remaining.

There's a fundamental issue here with natural resources, that they belong to all Canadians, and whatever the rules of engagement are with obtaining a resource, they need to be the same for all people. I think a lot of Canadians have a fundamental problem with the fact that you're going to send a policeman out in a boat to determine whether the man in the boat is this race or that race. So whatever the rules are, they need to be the same for all people.

I'm saying that we have other people in this global community we live in here. For instance, the Taliban just recently decided to mark a certain segment of their population with badges, or they wanted them to do that, and that caused a great hue and cry throughout the world. When we differentiate rights people have based on race, I don't understand how the minister thinks this is going to lead to long-term harmony.

In the negotiations you're having with first nations, there are elements of sovereignty in these negotiations about long-term settlements and treaties where the natives seem to be able to set their own rules on resources. Fish don't respect treaty boundaries or geographic limitations. The resources belong to all the people. It seems to me that the rules of engagement have to apply, and if the ministry wants to determine that so many licences should be allocated to natives or aboriginals, the distinction should be on licences, not on race, so that the man out there checking the fishermen, the policeman, is checking to see whether someone is a licence-holder, not whether he's this race or that. We probably all know aboriginal people who we wouldn't be able to tell by looking at them are any different from anybody else in the room. I've treated some who are as white as I am, and they have aboriginal cards.

• 0945

So can the minister explain to us how he feels that a race-based allocation of resources is going to lead to long-term harmony?

The Chair: Mr. Minister.

Mr. Robert Nault: Mr. Chairman, I believe in the fundamental rule of law, and I believe that when you as a government, whether it's in 1760 or 2001, sign an agreement with people, you have to respect that agreement. I believe that treaties were signed, and of course, we are discussing the whole issue of interpretation of that relationship at a time when none of us were there, which complicates the discussion. But the argument I'm putting forward to you is that we have an obligation to aboriginal people. And to make the argument that race-based or this or that....

We have a unique relation with aboriginal people, that's a fact of life, that's a fact of the formation of the country. It's pretty well known by most of us that the treaties in the west were the reason why the west was settled and the reason why it belongs to Canada, as an example. In those particular times the British crown signed those treaties in order to protect our sovereignty, as Canadians, from the Americans.

So you might want to look at it from a number of different perspectives. The argument you're putting forward is that the government is going down the wrong path by somehow not giving equal treatment. I think the definition of equal and the fairness of our relationship with first nations people can be maintained if you argue that we have a legal obligation, but also a political obligation, to keep the unique relationship alive and well for the good of the country.

Do we have parameters we negotiate under? Yes, we do. We do negotiate with first nations people based on the Canadian legal framework. So no one should suggest that somehow we're outside the Canadian legal framework when we're discussing with first nations. The implication of the member's question was that first nations people's espousing sovereignty means that we would allow people to be sovereign within the Canadian family. That's not the case, that's not our mandate, and it's made very clear at the negotiating table that our relationship, jurisdictionally, has to be within the federal and provincial laws that exist for all Canadians, including aboriginal Canadians.

The Chair: Thank you, Minister.

You can hava a very quick supplementary. You have about 45 seconds.

Mr. John Cummins: You commented there that negotiations are based on the Canadian legal framework, and earlier you said this isn't just about the law, it's also about politics. The fact of the matter is that the Department of Justice has been adamant that there is no legal right to a lobster food fishery. That's the law. And yet you've created the opportunity for a food fishery that is beyond the law. I think that that's the problem.

When this Marshall 2 came down, Phil Fontaine wrote to you on November 25, 1999, expressing concern over the basic elements used by the Supreme Court of Canada in Marshall 2 to establish and implement treaty rights, what Mr. Fontaine termed “geographic limitations, population limitations, and equitable access”. As a reminder to the committee, let me refer you to what the court said on that:

The treaties were local and the reciprocal benefits were local. ...the exercise of the treaty rights will be limited to the area traditionally used by the local community...

And indeed, in Barlow the court said:

It is not sufficient for the applicants to say “we are speaking of the treaty or the treaties mentioned in R. v. Marshall”...without producing the treaty or treaties relied upon or if not, at least stating, in writing, what are the treaties relied upon.

So the question is that you say your negotiations are based on law, and I'm saying you're ignoring the law.

The Chair: Mr. Minister.

Mr. Robert Nault: Mr. Chairman, to be very quick and keep to the 45 seconds, I disagree with the member, and obviously we have a fundamental disagreement as to how we interpret the law and our relationship, and that's not going to change this morning.

The Chair: Mr. Stoffer.

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Thank you very much, Mr. Chairman. Thank you, Minister.

It's refreshing to hear you, Minister Dhaliwal, and others say you'd rather have negotiation over litigation any time. But the reality is that you made a statement that you didn't want to be caught with your pants down. Well, when Marshall came down the government's pants were actually left in the closet. The Mi'kmaq people tried very hard in February that year to reach negotiated settlements, and the government continually said they were waiting for the Supreme Court decision. That's the reality of it.

• 0950

It's very refreshing to hear the Liberal government say through its ministers that's no longer the process. But you said aboriginal people have to prove they belong to some sort of common collective, while the Native Council of Nova Scotia and New Brunswick, who are of Mi'kmaq ancestry, are being left out of this process. Now they feel they have to take their concerns through the litigation process. So if you say you'd rather negotiate than litigate, why are these groups having to litigate in order to get even a hearing or discussions at the table?

Mr. Robert Nault: That's a very good question, and it is our legal view that these councils are political organizations, not beneficiaries, not the modern manifestation of those groups. They are more likely the bands themselves. Our mandate is to negotiate with those we believe are the modern beneficiaries of those groups in the 1760-61 treaty. So on the one hand, we will say very clearly that we would prefer to negotiate than litigate, but if it is our view that a particular group does not have the right, we will state that, and then we will end up in court on occasion, and rightly so.

Mr. Peter Stoffer: Mr. Minister, with all respect, don't you see the contradiction? You just said earlier that the government has an obligation to incorporate aboriginal people into the discussions of the sharing of natural resources, and now you're talking about your legal view. You say all that, but there's a thing in the back here saying “legal view”. So are you still basing the decisions upon legality instead of what you consider is the government's obligation or policy?

Mr. Robert Nault: No. What you're asking and suggesting is more about process than legalities. What we are saying is that the bands themselves are more likely the modern manifestation of those groups, and so they are the proper ones we should negotiate with, and that's who we're negotiating with. The councils, of course, as you can imagine, did not exist in that particular time, and it's our view that they're not the appropriate group to be negotiating with and that they will be represented by the bands at the negotiating table. So they will have representation, but not in that particular scenario you've painted in your statement in your question.

The Chair: Last question, Mr. Stoffer.

Mr. Peter Stoffer: Okay.

My colleague Mr. Lunney said there are an awful lot of other people who are part of this process as well. You talked about the provinces earlier, but the municipalities also have to play an important role. Groups like fishing organizations and coastal community networks also play a very important role in the process. The perception out there in the non-aboriginal community is that this is a resource transfer and that their children or their communities are going to have a lack of opportunities, as the aboriginal communities would have. I'm trying to tell them that in the long run everyone will benefit. My suggestion to your department is to ensure that they are part of the process every step of the way.

My question actually concerns the Conne River Band in Newfoundland, which is of Mi'kmaq ancestry as well. Are there any discussions or negotiations about what they perceive are their aboriginal rights?

The Chair: Thank you, Mr. Stoffer.

Mr. Minister.

Mr. Robert Nault: On the last question the answer is, no. Conne River and the aboriginal people in Newfoundland are not considered to be part of the 1760-61 treaty. That's our legal view.

• 0955

You raise the issue of third-party interests, including non-native governments. Of course, it could be argued—and we have done this in the past and continue to—that municipalities are a creation of the province and are represented by the provincial government. If the provincial government's at the table, they represent the municipalities, and so we've maintained that. But we've also gone what we believe is the appropriate route, setting up in other locations across the country—and there's no reason we can't do this in the Maritimes—advisory groups working with us to give us advice about third-party interests and making sure we work together, so that in the end this is a good agreement for both native and non-native people.

If you're asking me whether that will be our approach and the approach of our negotiator, Mr. Molloy, who, of course, was the chief negotiator for Nisga'a, where we had literally hundreds of consultation meetings in the non-native communities to hear their views on what was the best approach to take, I certainly expect that Mr. Molloy will do the same in the Atlantic as we work our way through the discussions. But we're in the early days of that. I would just end by saying to you that it's our intention to consult with both native and non-native people, because it certainly is in our best interest to do so.

The Chair: Mr. Keddy, last series of questions before the minister leaves. The floor is yours.

Mr. Gerald Keddy (South Shore, PC): Thank you, Mr. Chair.

There's a lot of discussion here about tripartite agreements, with the federal government, through the negotiator, the provinces, through their people, and the first nations band. But the other player, which has been left out, is the commercial fishery. You're saying you're talking to your counterpart, Mr. Dhaliwal, with DFO. You've also stated, Mr. Minister, that Mr. Molloy is talking to his counterpart, Mr. Mackenzie. But I don't see through the four of you where you've included the commercial fishery or non-native fisherman. For the success of this thing there's good reason to include them. If this initiative is to work, you have to include the non-native component.

I want to make a suggestion before I get to my question. For instance, in first nations' training, southwest Nova Scotia has asked for years, and they have an ongoing initiative right now to provide training for fishermen. There are only two places that provide training for fishermen in Nova Scotia, Halifax and Cape Breton—actually three, there's a small segment in Pictou. The fishery in Nova Scotia is situated in southwest Nova Scotia, that's where the bulk of the fishery is, that's where the training needs to be. If you're going to actually put people to work, if you're going to give first nations jobs and opportunities, you have to train them. You spent $160 million and provided 190 licenses and 100 boats last year, and I would bet you don't have 50 people who are trained and willing and able to fish. Do you have some actual numbers of Mi'kmaq who have taken this opportunity through your initiative and directive and money being spent, who are actually fishing and actually able to take advantage of this treaty?

Mr. Robert Nault: No, I don't, Mr. Keddy, in the process of the fishery. But I do know there have been discussions with the aboriginal groups about the importance of training and where training would be best put. If you're going to have ongoing training and ongoing compliance with all the rules and regulations fishermen have to follow, you have to have a place where that would occur. There have been some discussions, I understand, between Fisheries and Oceans and our department and aboriginal groups as to where it should be put. Should it be put in the tribal councils, to build a capacity there to allow for training? Should be it be done by a third party, by hiring outside training organizations? Is that the best approach to take? I think all aboriginal people and the leadership themselves have recognized what you just said, that this will not work very well if we don't have people who are properly trained and have the abilities to go out on a day-to-day basis to make a living in the fishery. It's going to take some time to do that.

The reason why we're at this point, Mr. Keddy, is simply this. It takes a significant amount of time to make a good fisherman, I understand. I'm not a fisherman myself—I am, but I use a fishing rod, which is a little different. But my view of it is that the sooner we got started—and that was the argument that Minister Dhaliwal made—without prejudice, the sooner we could get right into building a relationship to try to bring people into the fishery.

• 1000

Mr. Gerald Keddy: Mr. Minister, I want to interject—

The Chair: Very short, Mr. Keddy.

Mr. Gerald Keddy: —so I have time enough to get my last question in.

What's happening is that you're not translating the dollars being spent into the fishery. If you want this initiative to work, it can only be through the fishery as it's set up. There's talk specifically about the lobster fishery. We've seen an inflation of licences from $75,000 to $150,000 to as much as $750,000 or $800,000 in southwest Nova Scotia, in LFA 34, which has just taken away any opportunity for sons and daughters of fishermen to get into this industry, because they can't afford it. And we've seen a summer fishery threaten not only the resource, but the longevity of the industry.

The Chair: Is there a question here, Gerald?

Mr. Gerald Keddy: Yes.

The Chair: You'd better get to it.

Mr. Gerald Keddy: The industry's based on hard-shell lobster caught in the winter season. So if you want first nations to participate in that, they have to participate in the season as is established over the last 50 years.

The Chair: What's the question?

Mr. Gerald Keddy: No summer commercial fishery.

Mr. Robert Nault: Mr. Chairman, one of the things we've tried to outline this morning is that the short-term process being dealt with by the Minister of Fisheries and Oceans is, obviously, based on the sustainability of the commercial fishery and conservation. We also tried to paint the picture that suggests in the long term we will enter into agreements that include the fisheries agreements, that will meet our obligations under the treaty, that will be appropriate for a fishery and a sustainable harvest of that particular fishery. It will be part of the job of our negotiator to make sure those requirements are in any agreement we end up signing for the long term. In the short term I understand people's frustration, because we are at the beginning of a process that will take some time to unfold for the betterment of aboriginal people as a whole and, of course, the region as a whole.

The Chair: Is there any closing comment you want to make, Minister? I see some of your people are getting a little anxious to get you out of here.

Mr. Robert Nault: Mr. Chairman, I first want to apologize that it took us a little while to come and visit you. I very much appreciate the opportunity to make some comments. I would like you, if you are willing, to let Mr. Molloy stay behind and give you a report on the negotiations as we see them.

I want to make something very clear. We cannot successfully negotiate modern equivalence of treaties that were signed before the country was even formed as we know it without the participation of the provinces. One of the statements that was made was, you got caught with your pants down. I made that comment myself. Part of the reason is that we could not get the provinces to a negotiating table. This government and previous governments, if I can be fair, have certainly sent the message that we much prefer to sit at the table, but we need to do it with the provincial governments alongside, because constitutionally, we would be restricted in the discussions we could have as a federal government, and it would not be the kind of agreement we would like to have, if the provinces were not at the table.

So I'm very pleased to see Nova Scotia taking the lead, and New Brunswick starting to talk to us about the importance of these agreements. In the end they'll have to implement them on a day-to-day basis with us and our aboriginal partners. I just want you to know that the success of the country is very much in the hands of provincial governments. If we continue to not take our obligations seriously and let the courts define our relationship, I think we will continue to have the kind of conflict we see between ourselves and aboriginal people.

• 1005

I am very much of the view—and I want to state it in my concluding remarks—that negotiated settlements will bring the kind of certainty to building an economy that we all want for native and non-native people. That exists in British Columbia and in the Atlantic, and it certainly exists in provinces like my own, Ontario. Without those certainties built into our relationship, it affects our opportunities to build an economy, because investors know and they do factor in uncertainty.

British Columbia—I'll use that as an example—has lost a ton of money over the last number of years because of uncertainty over lands and land rights. Quite frankly, Mr. Chairman, once we do have those agreements.... As the private sector have told me in many meetings, governments are way behind where they want to be in our relationship with the first nations.

So with that I want to thank you, and I look forward to coming back to report to you, as we work our way down the road to agreements with first nations people in the Maritimes.

The Chair: Thank you, Mr. Minister.

We will now turn to Mr. Molloy. But before we go to a round with Mr. Molloy, in response to the question that Mr. Assadourian asked earlier, Tom, do you have a response to that?

Mr. Tom Molloy (Chief Negotiator, Department of Indian Affairs and Northerb Development): Yes, I do. What I'll do is just review it on a province-by-province basis. There are differences in each of the provinces.

With respect to the Province of Nova Scotia, I have met with representatives of the provincial government at the official level. I've also met with some of the chiefs. There is an indication and a willingness of both the province and the first nations to become involved in a process to start working on a framework agreement. We are waiting for the first nations to appoint a chief negotiator who would be representing them at the table.

With respect to New Brunswick, I've met again with government officials. I've also met with the Mawiw Council. These meetings I've been holding have been introductory meetings for me to meet with them, find out who they are, and for them to meet me, as well as to explain the mandates that I have and to just have a general introductory discussion. We have not, in any of the provinces, entered into any kind of substantive negotiation.

In New Brunswick I've met with government officials; I've met the Mawiw Council. With respect to the Union of New Brunswick Indians, it's been a scheduling problem. When they're available, I'm not, and vice versa. However, we hope to have a meeting in the near future.

In Prince Edward Island I have met with provincial government officials. Within the next two weeks I'll be meeting with some of the first nations people. In Prince Edward Island we're looking at the application of the treaties to that province. We have been conducting some historic research. We will be discussing this with both the province and the first nations.

In Quebec I have met with several of the chiefs from the Gaspé area. I've also met with officials from the provincial government. Again, one of the matters that is being examined is the research to determine the extent of the application of the treaties in Quebec. There has been some research done, which has been discussed with the Province of Quebec and with the chiefs, and we're looking at whether or not further information is required.

Just to make it clear, there are no discussions or negotiations, as such, going on with any of the bands or the provinces. It's at a very beginning stage.

The Chair: Thank you, Mr. Molloy.

Madam Tremblay.

[Translation]

Ms. Suzanne Tremblay: Mr. Molloy, you tell us, from what I have understood, that your role is concerned with the long term. We see that in political life, the short term is long. What does long term mean for you?

• 1010

You have stated the situation clearly for us: no discussion has begun, no negotiations have begun, and you are undertaking long-term negotiations. How much time does that mean? What is going to happen between now and the end of the long term?

[English]

Mr. Tom Molloy: The use of the term “long-term” has two meanings. Number one, it has a meaning in terms of time, in that I don't see agreements being reached within months. We're probably looking at a number of years. The other use of the term “long-term” is as it relates to long-term solutions.

The short-term is to provide immediate access to the fishery to help build capacity, but it's not based on rights. Therefore, I can't give you an accurate estimate of the time. It's going to depend on the willingness of the provinces and the willingness of the first nations.

I can tell you, though, that from Canada's perspective, we are in a position to begin discussions in each of the four provinces. We would be in a position to begin our work immediately, but there are two other parties in each of the provinces that will have an impact on how soon we can get started and the nature of the discussions.

As the minister pointed out, the provinces bring a lot to the table, and if they're present we have a much fuller basket of issues that can be addressed, rather than if we were just there by ourselves.

The Chair: Madam Tremblay.

[Translation]

Ms. Suzanne Tremblay: I am trying to grasp what the actual situation is, which is not as easy as it seems, unless I am tired because we are coming to the end of the session.

If I understand correctly, your department is concerned with the long term, basing itself on rights. The Fisheries Minister, Mr. Dhaliwal, wants to give access to the fisheries right away so that people can go fishing.

People are going to go fishing in conditions signed for the short term, depending on whatever behaviour they adopt and which is not always... In Halifax, a witness told us how far native philosophy went concerning protection of the resource. Later, I asked him why he fished whenever he felt like it. He answered us that he was using civil disobedience to force respect for his rights.

If for two or three years, they are given the right, which is not one, or the permission, to fish wherever and however much they want, without taking into account quotas and controls, permission to fish out of season, when it is not time, etc., what will you do afterwards to re-establish rights based on actual conditions, when they have been having a free-for-all for three years?

[English]

Mr. Tom Molloy: Well, it's part of the negotiation. We are willing to begin discussions on the long-term access to the fishery. The problem is that under the process I'm in and given the number of issues involved, there is no way we will come to agreements, at my table, in time for the fish season this year or next year.

In order to prevent the kinds of things you're discussing, that is why the Department of Fisheries and Oceans, as I understand it, created this short-term process to provide access immediately, without prejudice, to whatever positions the parties might want to take at the negotiating table to allow the longer-term process to get into place and to start dealing with the issues.

The Chair: Thank you, Mr. Molloy.

Mr. Cummins.

Mr. John Cummins: Thank you, Mr. Chairman.

Mr. Molloy, you negotiated the Nunavut Agreement as well, didn't you?

Mr. Tom Molloy: That's correct.

Mr. John Cummins: Yes. There were huge cost overruns in that. Was that part of your responsibility or not?

Mr. Tom Molloy: No.

Mr. John Cummins: I'm sure that's not. No responsibility here. But what I'd like to ask you—

Mr. Tom Molloy: I was responsible for negotiating the treaty, not—

Mr. John Cummins: I understand that, and the terms that allowed this to happen, in my interpretation, Mr. Molloy.

• 1015

Mr. Molloy, the minister suggested in his document that these treaty rights were somehow general, that they applied now to all natives. If I can find the quote here.... I think you understand what I mean, that he wasn't going to concern himself about individual treaties covering individual bands. Is that correct? I think it's in his comment.

Mr. Tom Molloy: I think his words speak for themselves.

Mr. John Cummins: That's in essence what they said. Is it not?

Mr. Tom Molloy: You can read what he said.

Mr. John Cummins: If I can find it here.... In essence, he suggested that he wasn't going to concern himself with individual treaties and try to find who the modern beneficiary was of a particular treaty.

The Department of Justice in the Mitchell case made the statement that the Minister of Justice denies that there existed a common Mi'kmaq treaty, as alleged or at all. The fact is only individual treaties with local communities were entered into in 1761, which treaties were local in nature. Isn't that contrary to what the minister said in his address?

Mr. Tom Molloy: I think the minister made it very clear that it was not just a question of legal interpretation that applied to the government's decision to negotiate treaties, that there was a policy aspect to it as well. The government had thought that negotiations were better, rather than fighting each issue through the courts and waiting for the courts to decide, only to be told that these things should be negotiated at a table.

Mr. John Cummins: But you well know that the government has taken that point of view elsewhere. It did with the Sparrow decision in the Supreme Court of Canada back in 1991 and interpreted that as allowing for a commercial right to harvest salmon in the Fraser River. The Supreme Court overturned that in 1996, but we're already engaged in a disastrous program.

It's quite clear, I think, and certainly the Minister of Justice makes it very clear on the issue of location. He denies that St. Mary's Bay is located within the traditional fishing grounds of any local community of which the plaintiff band is a successor community, the plaintiff band being the Shubenacadie Band. He denies that the plaintiffs were authorized to fish in St. Mary's Bay by any local community or holder of any alleged treaty right to fish in St. Mary's Bay. hat's what the Minister of Justice is saying in the Mitchell case.

The suggestion in Marshall, at paragraph 17, is that:

The onus will then switch to the accused to demonstrate that he or she is a member of an aboriginal community in Canada with which one of the local treaties described in the September 17, 1999 majority judgment was made, and was engaged in the exercise of the community's collective right to hunt or fish in that community's traditional hunting and fishing grounds.

So Marshall says very clearly that the activity must occur in the community's traditional fishing grounds. The Minister of Justice makes that point in the Mitchell case. Yet what we hear from the minister here is that it doesn't matter. So where does the rule of the law apply?

Mr. Tom Molloy: We have not begun long-term fish negotiations, so I don't want to prejudge what the outcome of those negotiations might be.

The Chair: Last question, John.

Mr. John Cummins: You haven't engaged in long-term negotiations, but you're sure well on the way and causing considerable disruption in fishing communities.

There was an article in the Cape Breton Post the other day. There was a meeting of 250 non-native fishermen in Yarmouth. Phillip Nickerson of Yarmouth said that the program is putting fishing crews out of work. He said he's tired of working day in and day out to pay taxes that are used to put him out of business. It seems to me that this program is not based on law. Was an economic impact study done before this program was embarked on?

• 1020

Mr. Tom Molloy: Mr. Chair, that program falls under the Minister of Fisheries and Oceans.

The Chair: John, in fairness, I think the minister basically answered the thrust of that question earlier, did he not?

Mr. John Cummins: No. I'm asking whether Mr. Molloy is aware of an economic impact study that would tell the government what the impact of these programs would be. Mr. Molloy is the negotiator, and he should be aware of that.

The Chair: But that question is probably more appropriately targeted to the Minister of Fisheries, because it's that section that we're dealing with.

Mr. John Cummins: Well, is Mr. Molloy not the negotiator?

The Chair: Yes, but he negotiates in terms of the broad context. He's not involved in the fisheries negotiations, which I understand are to be without prejudice.

Mr. John Cummins: The more reason to be aware of an economic impact study.

The Chair: Well, Mr. Molloy, say what you might.

Mr. Tom Molloy: The question relates to matters that fall within the Department of Fisheries and Oceans and the negotiations they're presently carrying on. And as I say, we have not started long-term negotiations with anyone.

The Chair: Thank you, Mr. Molloy and Mr. Cummins.

Mr. Stoffer, a question.

Mr. Peter Stoffer: Mr. Molloy, do you have a mandate or an obligation to discuss any other natural resources rights for aboriginal communities in the discussions?

Mr. Tom Molloy: I'm able to conduct discussions on matters within the jurisdiction of the federal government. With respect to matters under provincial jurisdiction, they would take those decisions. I recognize that there are crossover matters, because nothing is separated into boxes, but by and large my responsibilities are for matters within federal jurisdiction. The provinces would be responsible for matters of provincial jurisdiction.

Mr. Peter Stoffer: One thing both you and the minister have said—though Mr. Dhaliwal has never said it in this context—you always say “Canada's position” or “Canada's perspective,” or “Canada's viewpoint”. I've listened to the debate of the government and that of Quebec for years, in their discussions of the Quebec question, and I've never heard the words “Canada and Quebec”—it's always “the government and Quebec”. When you say “Canada's position,” it almost sounds as if you're dealing with an international group of people somewhere else.

My belief, my perspective, and the perspective of many aboriginal groups I speak to is that they're proud to say they're Canadians. This government also represents aboriginal people, so I wonder why this is. Is it a conscious decision to say “Canada's viewpoint” instead of the “government's position”? Why do you say that? It almost gives the perception that you're dealing with a completely separate body of people within the boundaries of our own country.

Mr. Tom Molloy: That's never been the intention when I use the word “Canada”. I do represent the Government of Canada. I guess we use the word “Canada” as opposed to “the government” in order to make it clear that we're referring to the federal government rather than a provincial government.

From my perspective, there are certainly no implications with respect to sovereignty of first nations. We negotiate, as the minister said, within the context of the Canadian Constitution. The federal government and the provincial governments have constitutionally protected jurisdictions.

The Chair: Last question, Peter.

Mr. Peter Stoffer: The minister indicated that the native councils of Nova Scotia and New Brunswick are political organizations, so they're not part of this process. But you, sir, with the Nisga'a.... And by the way, I think you did a fairly good job on that and on Nunavut.

These people can claim Mi'kmaq and Maliseet ancestry, even though they moved off the reserve and are now in other communities. So do you not believe they should be part of this process as well—especially when the minister has indicated that the government has an obligation to include aboriginal peoples?

• 1025

Mr. Tom Molloy: That's one of the issues that has to be addressed in each of the provinces: how the collectivity of voices that hold the rights communally will be represented.

We've made it known that our preference in each area is to have one table, with one negotiator for the bands and first nations people, and one for Canada, and one for the respective provinces. That's our goal. Whether it will be achieved, and exactly how it will work, has to be worked out.

The Chair: Thank you, Mr. Molloy.

Mr. Keddy.

Mr. Gerald Keddy: Thank you, Mr. Chair.

Mr. Molloy, I'm respecting the difference in your position here through DIAND and DFO. But it needs to be pointed out that last year we spent $160 million on a fishery, and had a very difficult time with a couple of individual bands that were not signatories to a fishing agreement.

This year, through DFO's initiative, four bands have signed on—actually five, because one in New Brunswick signed on today, or at least it was reported in today's paper. But that's only five bands willing to sign an agreement.

So you're facing a daunting task. My question is headed in a slightly different direction. With your background in Nisga'a—well, Nisga'a was a totally different situation from what you're dealing with in the east coast.

Mr. Tom Molloy: Completely.

Mr. Gerald Keddy: You had much more cohesive communities, you had a geographical area; and although you had significant non-native interest in the logging industry and so on, there was very little non-native interest in claiming lands within the Nisga'a tribal boundary.

I'd just like to hear your opinion on some of those significant differences. The situation in the east coast involves four provinces, 34 communities....

Mr. Tom Molloy: I recognize that there is a vast difference, and a unique difference, between British Columbia, Northwest Territories, Nunavut, Yukon, and other places.

Here we have a circumstance where there's a treaty in place, and there are also the possibilities of other aboriginal rights and interests. Somehow or other we have to make it work, and come to a final resolution of the issues at the same time.

I'm also not unmindful of the importance of these treaties for third parties. Certainly that's one of the things we're going to look at as we set up the processes and begin the discussions with the other parties. I'm very mindful of the issue of how third parties will be able to have some role in providing advice and guidance at the negotiations.

The Chair: I think Mr. Cummins raised that point earlier, the point of economic impact studies, and Suzanne did as well.

Tom, if you could do that kind of a study, I think it would be useful. In my own area, I even know young people who saved money to get into the fishery, but right at the moment it's impossible for them to get in, because of the upward pressure on the cost of licences. There's no question that this has been pretty extensive, because of this policy of trying to bring some people into the fishery by buying others out.

That's the reality in all our areas, I think, and it does need to be seriously looked at. People are certainly feeling the pressure at the moment. I know this is not as a result of your discussions, but the pressure is on the fishery, at least in the initial stages of Marshall. There is an impact on people's ability to come into the fishery as a result.

That may be something you need to examine. I know it's not your area, but that's certainly a concern that's expressed to us a lot, to all of us from those areas.

Mr. Keddy.

• 1030

Mr. Gerald Keddy: I realize there's some reluctance on the behalf of governments—and maybe for good reason—to go back and reassess how and why the Cope treaty of 1752 was signed, and the LaHave treaties of 1760 and 1761.

I think it's worth taking a look at. I'm not suggesting we should litigate instead of negotiating—I totally agree with the government's position. But negotiations also take into consideration the litigation that went before, and ways to avoid it.

Quite frankly, if you look at the historical significance of the 1760 and 1761 treaty, there's a real argument to be made that these treaties were signed after open warfare. In the local history of the south shore, there was certainly open warfare between the Mi'kmaq and the British at the time. There were massacres at Lunenburg, Blockhouse, and Rafuse Island, both of natives and non-natives. The King's Orange Rangers were formed essentially to finish picking up the remnants of the Acadians who were hiding out in the area, and to actively pursue the area's first nations people.

There's no question that at this time a treaty signed for economic.... I can't do this if you're going to laugh.

The Chair: We're amazed at the history lesson here, Gerald, but it is good.

Mr. Gerald Keddy: The treaty was signed under that aegis of warfare and economic pressure. So the issue is what was that treaty about? What were the circumstances that forced the people into a desperate situation when they signed those treaties? Was it a treaty of war, or was it a treaty of agreement between two nations?

Mr. Tom Molloy: Obviously those matters have some impact on the government's approach in negotiating.

Mr. Gerald Keddy: But you didn't have those circumstances in this case.

Mr. Tom Molloy: No, correct. There were no treaties, and there was no history of previous relationships as there were in this part of the country.

The Chair: Thank you, Mr. Molloy.

Mr. Keddy, I do believe you should recommend some books on that history to this committee for us to read. I'm serious. There are some interesting ones out there, I'm sure.

Are there any further questions? Mr. Cummins, you have five minutes.

Mr. John Cummins: Mr. Molloy, you talked a minute ago about treaties being in place. The impression I had was that your negotiations were to modernize some of these treaties.

What treaties cover Prince Edward Island? What treaties cover the Gaspé area of Quebec, and what treaties cover the south shore of Nova Scotia? Could you provide that information?

Mr. Tom Molloy: First of all, let me make it very clear that we're not about to modernize treaties. We're not going to be renegotiating existing treaties. With respect to what treaties apply to each province, I'm not in a position to provide that information at this time.

Mr. John Cummins: Back in 1981 the research branch at the Department of Indian Affairs did a study called “Anglo-Indian Relations in North America to 1763”. I have that report here if you would like to look at it. But it describes the 1760-61 treaties as little more than platitudinous documents. Are you aware of that study?

Mr. Tom Molloy: No, I'm not.

Mr. John Cummins: The study was written by Jack Stagg, who, as you know, was Associate Deputy Minister of Fisheries, and was directly responsible for the Marshall—

Mr. Tom Molloy: He's not in that position any more.

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Mr. John Cummins: He was removed in the last few days, but he certainly had something to say about the Marshall case.

Would you repudiate the comment that these 1760 treaties were little more than platitudinous documents?

Mr. Tom Molloy: I'm not familiar with the study, and I can't make a comment on one statement out of it.

Mr. John Cummins: The interesting point about that study is that if you look at what Justice McLachlin said in her comments on the Marshall case, you'll see that she obviously believed what Mr. Stagg wrote in 1981 because she gave his study considerable prominence in her writings on that.

It seems to me that what the current chief justice had to say about the Marshall case is considerably different from what I've heard here this morning. It also seems to me that what I've heard here this morning is considerably different from what the Minister of Justice had to say on these issues. My question is: when there is such a discrepancy between what is being said by the Chief Justice of the Supreme Court of Canada, the chief law enforcement officer in Canada, and what is being said by the Minister of Fisheries and Oceans and the Minister of Indian and Northern Affairs about the Marshall decision, why should the fishermen who are involved and whose lives are being impacted by the actions of these two ministers have faith that their best interests are being looked after?

The Chair: Mr. Molloy.

Mr. Tom Molloy: I'm not sure I can answer that question. I haven't seen the statements of the minister he's referring to, the Minister of Justice.

I think the question still remains, as the minister said, how are we going to resolve these issues? Are we going to allow it to play itself out in the courts over years and bring solutions that do not provide a wide, long-term solution but that deal with cases on a fact-by-site basis? The courts have said in cases in New Brunswick with regard to the forestry that in that area there were no rights to harvest timber but that's not to say those rights don't apply elsewhere. The Marshall case has suggested the same thing. We're not in a position to answer other questions. We were asked this specific question. We based our opinion on this specific set of facts. Are we going to fight the issues inch by inch through the courts, or are we going to say, the courts have said there's something out there, somehow we have to resolve it, and the best way to do it is to sit at the table with the provincial government, the federal government, and the first nations?

The Chair: This will be your last sum-up question, John.

Mr. John Cummins: My problem is that you're ignoring what the court is saying. You're ignoring the guidelines that the court gives. The court gives explicit guidelines, which it reiterated in the recent Mitchell decision, as to what is an aboriginal right. The department is ignoring that when it allows a food fishery in St. Mary's Bay. It's not addressing these issues consistent with the directions given by the Supreme Court of Canada, and I have a problem with that.

Mr. Tom Molloy: I think we have a disagreement on the interpretation and the approach. As the minister said, it's not being done on a specific legal basis. It's being done on the basis of a policy.

Mr. John Cummins: Your difference is not with me. It's with the Department of Justice. You should understand that. They're the guys you're butting heads with. I've said those things from the beginning. That has been my interpretation, but these days it's also the interpretation of the Department of Justice. That's what I can't get my head around, how one department in this government can say one thing about these things and ministers and yourselves can take a different point of view and suggest that we haven't done our homework in this corner.

The Chair: John, I don't believe the Minister of Justice has said that.

Mr. John Cummins: Yes, the Minister of Justice said that in those cases.

The Chair: All right.

We'll go to Mr. Keddy for a very quick question, and then I want to move on.

Mr. Gerald Keddy: The minister made the statement earlier, and I think many of us at the table were happy to hear him make it, that this agreement and these ongoing discussions are not just about fish. Obviously, they're not. That raises the question: since they're not just about fish, what else are they about? I'd like to hear your interpretation of that.

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Mr. Tom Molloy: I think it's about a broad range of issues, topics similar to those that have been found in other treaties. I'm not saying the outcome is necessarily the same. But at the moment we have not sat down with any of the provincial governments or first nations and said, these are the topics we're going to be trying to negotiate. As I say, it would be anticipated, if the provinces come to the table, that there would be a broader range of issues than just fish. I expect that from Canada's point of view we would be in a position to talk about migratory birds, national parks, the environmental issues Canada is involved in, and so forth.

The Chair: The last question will go to Madame Tremblay. But before I turn to Madame Tremblay, there is a motion before us. Following our last meeting, when the Canada-Nova Scotia Offshore Petroleum Board appeared before us, I suggested to John that he might want to draft a motion on recommending.... We don't have the 48-hour notice, but I don't expect we'll be meeting on Tuesday. I'm going to read the motion, and you can think about it while we continue with the discussion. The motion would read along these lines:

That the Standing Committee on Fisheries and Oceans recommend that the Minister of Natural Resources appoint a qualified person from the fishery to the vacant position on the Canada-Nova Scotia Offshore Petroleum Board at the earliest opportunity.

That relates to the discussion we had at the last meeting.

We need two things: unanimous consent to deal with it, and a vote on the motion.

Madame Tremblay, proceed with your questioning.

[Translation]

Ms. Suzanne Tremblay: Mr. Chairman, since I have been on this committee, I have tried to listen carefully and to understand what is going on every time we broach the great issue of the Marshall decision. Quite honestly, I sense dishonesty, or rather a lack of openness on the part of the government. Every time the Canadian Alliance Party talks, the answer is always that we differ in opinion or interpretation, that it is not this morning that we are going to change ideas on either side, that it is not this morning that we are going to understand each other, that it is not this morning that this or that.

Mr. Cummins said that that we do not have a difference of opinion with him but rather with the government's Minister of Justice. I would really like to be able to consult a table prepared by our researchers or someone else, that clearly established the respective positions of the Department of Fisheries and Oceans, the Department of Indian Affairs and Northern Development, and the Department of Justice, so that we could compare them. That way we could know objectively whether the two other ministers are really in disagreement with the government's Minister of Justice.

If what Mr. Cummins talked to us about is a directive, an official position of the Minister of Justice, it must exist somewhere, and we could discuss it once and for all and decide whether it is true or false. But I sense that these statements are being made more on the basis of impressions: if it is the Canadian Alliance, we are against it; if it is the Liberal Party, we are against it. It seems to me that these things could be clearly established, and I would like to know the very clear position of the three ministers.

[English]

The Chair: I think, Madame Tremblay, that several times the Prime Minister has made it very clear where we're at on this issue. It basically relates to the comments Minister Nault made earlier.

I believe we did have justice department people in at one point in time, although it mightn't have been on this issue, but if at a future date the committee wants to ask for some clarifications from the justice department on this issue, we can do that. But I wouldn't see us at this point asking Alan to get all the various statements, because I think over time they've covered a fairly broad base.

Mr. John Cummins: Many of those comments are taken from the Federal Court Trial Division. The issue is between the Shubenacadie Indian Band and the Attorney General of Canada. So that's a public document.

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The Chair: I don't want to debate the issue either, but I do think, based on the decisions that were made, government policy is as was laid out by Minister Nault this morning, basically. In any event, that's something the committee might want to consider for the future.

Dominic moves for unanimous consent to deal with the motion I read earlier. We don't need a seconder.

Some hon. members: Agreed.

The Chair: I would change it a wee bit, so that the motion would read

That the Standing Committee on Fisheries and Oceans recommend to the Minister of Natural Resources to appoint a qualified person from the fisheries to the vacant position on the Canada-Nova Scotia Offshore Petroleum Board at the earliest opportunity.

Does somebody want to move that?

Mr. Paul Steckle (Huron—Bruce, Lib.): So moved.

(Motion agreed to)

Mr. John Cummins: I'd like to bring to the committee's attention that concern has been expressed by a number of fishermen in British Columbia about the way the Canadian heritage committee is handling Bill C-10. Many of these groups were promised by the one who I believe is now the former director general of DFO in B.C. that they would have a full and ample hearing and participation in the development of Bill C-10, and that hasn't happened. As you will recall, Mr. Chairman, I requested that there be joint hearings between Heritage Canada and this committee.

The Chair: And we were denied.

Mr. John Cummins: That didn't happen. I don't know what we can do about that at this point, but I think you and the committee should be aware of that problem.

The Chair: We'll just table it on the record for the moment, and maybe we will draft a letter to the committee chair to say there is some concern from fishermen that their view has not been heard.

Mr. John Cummins: I'll make available to you, then, copies of the letters I have, and you can distribute them when you get them translated.

The other issue, Mr. Chairman, is that you asked me last time to bring forward a list of outstanding requests, and I'll present that to you now. Do you want me to read it into the record?

The Chair: No. I've seen the list, and I'll respond to it accordingly.

The meeting is adjourned.