FOPO Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, September 27, 2001

• 0908

[Translation]

The Clerk of the Committee: I see we have a quorum. We may now hear the witnesses.

[English]

The first matter of business is to elect an acting chair, however.

Are there any nominations for an acting chair?

Mrs. Suzanne Tremblay (Rimouski-Neigette-et-la Mitis, BQ): Don't we have a vice-president? Aren't you a vice-chair?

An hon. member: No.

Mr. Paul Steckle (Huron—Bruce, Lib.): Mr. Clerk, I would nominate Mr. LeBlanc as chair in the absence of our chair and vice-chairs.

The Clerk: Thank you, Mr. Steckle.

Are there any other nominations? There is a motion that Mr. LeBlanc take the chair. All those in favour?

[Translation]

Ms. Suzanne Tremblay: I would like to ask a question beforehand, sir. Given that it is taking place in Miramichi Bay and this is what we are studying, are you yourself not an important resource for the Miramichi? I am not altogether sure that we are doing you a favour by giving you the chair.

Mr. Dominic LeBlanc (Beauséjour—Petitcodiac, Lib.): I appreciate that, but it is not really in my riding. It is in Mr. Hubbard's riding. The situation in Miramichi Bay does not really affect my riding as such.

Ms. Suzanne Tremblay: All right. I just did not want to put you in an awkward position. I have no objection.

[English]

The Clerk: I gather there's unanimous consent.

Mr. LeBlanc, would you please take the chair?

• 0910

The Acting Chair (Mr. Dominic LeBlanc (Beauséjour—Petitcodiac, Lib.)): I'll call the meeting to order.

[Translation]

Thank you very much, dear colleagues. I appreciate your confidence in me. This is the first time I am chairing a parliamentary committee meeting.

[English]

It's the first chance I've had to sit at this end of the table, so

[Translation]

I hope you will understand if I do not always follow the current order for the questions, which Andrew will help me with. Once again, thank you for your confidence.

[English]

Colleagues, we have Jim Jones, the regional director general of the gulf region. He has obviously been intimately involved in this file for many years. We also have Pat Chamut, the assistant deputy minister of fisheries management.

Gentlemen, welcome.

[Translation]

Welcome to the Fisheries and Oceans Committee. You know us well.

[English]

You know this committee well and we're looking forward to your presentation.

Please, Pat, go ahead.

Mr. Patrick Chamut (Assistant Deputy Minister, Fisheries Management, Department of Fisheries and Oceans): Thank you very much, Mr. Chairman.

Good morning on behalf of both myself and Mr. Jones. We appreciate the opportunity to be here with the committee this morning.

Mr. Chairman, my intent this morning is essentially twofold. First, it would be useful to review some of the overall progress of negotiations currently underway with Marshall first nations in Atlantic Canada. Second, I know the committee is interested in having a more specific briefing regarding our activities with the Burnt Church first nation in New Brunswick.

To provide a quick overview on where we are in our overall negotiations, the first point I'd like to reinforce is how very pleased we are that the vast majority of fishing activities conducted by first nations throughout Atlantic Canada in 2001 have been without incident. Where aboriginal communities are fishing, they are doing so with DFO licences, operating under DFO rules, and there has been successful integration of first nation fishers into the commercial fishery.

We've also made good progress in negotiating fishing arrangements for this year with the majority of the 34 first nations affected by the Marshall decision. For the 2001 season our federal fisheries negotiator, Jim MacKenzie, has now signed 21 agreements—three in Quebec, seven in Nova Scotia, and eleven in New Brunswick. In addition to these 21 agreements, there are also seven agreements in principle. We anticipate that these will develop into full agreements, which we will be able to announce at a later time.

The agreements we are reaching are providing first nations with access to the commercial fishery, along with vessels, gear, training, and fisheries-related infrastructure, all of which are necessary to ensure that they can be successful in the fishery.

According to a recent Atlantic Policy Congress of First Nations Chiefs survey, approximately 1,300 first nation members are now working in fishing and fishing-related jobs. This represents both new opportunity and new prosperity for first nations in Atlantic Canada.

This integration of first nation fishermen into the commercial fishery is being done through our program of voluntary licence retirement. This is our fisheries access program. Under this program a total of 391 enterprises, representing some 1,260 individual licences, have been retired along with 125 vessels. These enterprises that we are retiring and transferring to first nations have a potential to generate well over $25 million in landed value, which will further translate into an estimated $15 million in potential income.

As we implement the fisheries access program, we continue to encourage the involvement of the commercial fishing industry. In May of this year, Minister Dhaliwal announced the creation of an industry advisory committee with six regional subcommittees. These groups will provide us with advice on program delivery and on policy issues as they pertain to our program. The first meeting, Mr. Chairman, of this umbrella committee will be held in early October.

• 0915

We've also been working with the Atlantic Policy Congress and with provincial fisheries schools to develop and implement training and mentoring programs for first nation fishers. This initiative deals not only with fisheries training, but also provides more comprehensive training in areas such as navigation, vessel maintenance, and essentially how to run the small business of being a commercial fisherman.

Mr. Chairman, I believe we are making a real difference in the economic outlook for first nation communities. In my statement, which I believe has been made available to members of the committee, I cite a number of examples of how our program is providing new economic opportunity for first nations. In the interest of time, it's not my intent to go through all of the material in my statement. There are examples in it describing how first nations are dealing with their enhanced fisheries access. I don't intend to go through these in detail, but I would encourage members of the committee to look at them, because they do provide some very concrete examples of how we are developing economically viable fishing enterprises for first nations.

Let me now turn to the recent events involving the fishery at Burnt Church. I'll begin by apprising the committee first of all of the efforts the department has made to reach an agreement with the Burnt Church band. Second, I'll talk about our strategy for managing the Burnt Church lobster fishery. And finally, I'll talk about the current situation and how it is being managed.

As you know from previous briefings here at this committee, the Burnt Church Band is asserting a treaty right to harvest lobsters in Miramichi Bay under the authority of an independent management plan. We have opposed this plan because of its consequences for conservation and because of its impact on other parties dependent on the lobster resource.

The department's efforts to regulate the Burnt Church Band's fishing activity last fall, as you know, resulted in some very serious conflict between departmental staff and members of that community. In an effort to avoid a repeat of this conflict, several steps were taken over the last number of months in an attempt to try to reach a mutually acceptable arrangement with the band.

Departmental officials began meeting with representatives of the Burnt Church Band in May. At the outset, in order to try to address some scientific uncertainties and build cooperative relationships, we agreed with the band's request to conduct a scientific study of lobster in Miramichi Bay.

To that end, Dr. John Caddy, an internationally recognized scientist, was engaged to do this independent work. Copies of his report are available for members of the committee, Mr. Chairman. I have them here, both in English and French, and they will be distributed to members. Among the main conclusions of his report, Dr. Caddy very strongly emphasized that an integrated management plan is a prerequisite for conservation, and that a research program on lobster stock in Miramichi Bay would be beneficial.

Following the Caddy report, two proposals for an arrangement governing the conduct of a fall fishery were made by the department to the Burnt Church Band. We made an initial offer on August 2, which was rejected by the community on August 7. We then had discussions with representatives of the band to try to understand more of the reasons for their rejection of our offer. Based on these discussions a second proposal was made to the Burnt Church Band on August 22.

The proposals made were specifically designed to address the community's aspirations to have a fall fishery on lobster. The proposals we made would have authorized a small-boat commercial fishery to be conducted within a restricted area adjacent to the reserve. We also proposed a cooperative science project, and other elements that would have provided up to 50 jobs and income for members of the community.

• 0920

Unfortunately, Burnt Church was unable to agree to the proposals. We learned about the rejection of our second proposal, made on August 22, by means of a press statement that was read by the chief on August 28.

As we went through our process of discussion with Burnt Church, we also involved local commercial fishing representatives, so they were aware of the discussions that were underway. Departmental officials were in constant contact with representatives of the communities, with local fishermen and their union, to see if an accommodation could be reached with Burnt Church.

As I've said, we were unable to reach agreement, and in the absence of an agreement the band was issued a communal licence on August 28. This licence allows the band to prosecute a food, social, and ceremonial fishery within a defined zone, about 1.5 by four miles long, immediately adjacent to the boundaries of the reserve. The licence that we issued will expire on October 20.

This approach of restricting the fishery to a defined geographic area has been effective. The majority of Burnt Church fishing activity is confined to the authorized fishing zone, and as of today approximately 1,050 lobster traps are being fished in the authorized area. As of this morning, 402 traps have been seized that were found to be outside the area authorized.

We're pleased that our enforcement activity has not resulted in any incident or confrontation. All the enforcement actions that have been taken have been peformed in a very routine and peaceful manner.

Unfortunately, progress in managing the Burnt Church fishery was marred by the events that occurred during the evening of September 16. At that time, a fleet of approximately 50 non-native vessels entered the authorized fishing zone and in their activities cut and damaged close to a reported 400 traps being fished by Burnt Church. During that incident, between 15 and 20 Burnt Church vessels engaged the non-native vessels, and gunfire resulted. In the aftermath of the event, one of the non-native vessels ran ashore and subsequently burned. The RCMP is currently investigating these incidents, and we are continuing to support them in their investigations.

The intervention on Sunday, September 16, by local fishermen has significantly increased tensions in the area. As a result, meetings were held with members of the Maritime Fishermen's Union and with Burnt Church on September 20 and 21 to request that all parties maintain restraint. We were also trying to find ways to alleviate the likelihood of further contact.

The RCMP and the Department of Fisheries and Oceans are working cooperatively now to manage the situation, with a visible land, sea, and air presence, increased staff from the RCMP, and proactive communications. Most importantly, we are continuing the dialogue with both Burnt Church and commercial fishermen in the area in an effort to ensure that we maintain the peace. In keeping with this effort throughout, DFO is maintaining its enforcement of the authorized zone.

Mr. Chairman, these events have regrettably overshadowed the constructive progress made with the majority of first nations elsewhere in Atlantic Canada that are affected by the Marshall decision. But we believe that despite the difficulties at Burnt Church, overall we have made very good progress and we're confident we're implementing the decision in a fair and equitable manner that will provide real benefits to first nations affected by the decision.

Thank you. We would entertain comments from the committee.

• 0925

The Chair: Thank you very much, Mr. Chamut.

The first round of questioning. Mr. Cummins.

Mr. John Cummins (Delta—South Richmond, Canadian Alliance): Thank you very much, Mr. Chairman, and good morning to our witnesses.

I'm interested in the quotes you selected from Professor Barlow. I'd like to give some quotes from Barlow myself and ask why they weren't considered in the actions the department took and in your brief this morning.

In paragraph 21, Professor Barlow says.... This consultant is generally of the opinion that one fishing season should be decided on, since he's unaware of fisheries around the world that successfully regulate two openings in the year, with the lopsided complications this involves.

Professor Caddy says, in section 11 of his paper:

The other danger of a fall season is that because the animals are concentrated in a smaller area at higher densities and are more catchable, the stock can be seriously depleted if the number of traps is, accidentally or deliberately, set too high.

In section 12 he said:

It must be clear from the earlier sections that a full-scale commercial lobster fishery in the fall is not compatible with a similar fishery in the spring.

Basically what you were attempting to do with the early negotiations was to allow for a full-scale commercial fishery. Caddy makes it quite clear that allowing for this fall fishery is going to impact on the spring fishery. And I'd like to know just what your rationale is for allowing for that fishery in the first place.

Mr. Patrick Chamut: Thank you, Mr. Cummins.

Mr. Cummins, in your opening comment you referred to a report by Mr. Barlow. I believe you are in fact referring to the Caddy report.

Mr. John Cummins: I meant Caddy. I'm sorry.

Mr. Patrick Chamut: Fine.

A couple of comments. You did take comments from what Dr. Caddy says in his report. Initially you've talked about the desirability of having one fishing season. But you'll note that also, in his report—and I don't have the immediate citation in front of me, but I know that Dr. Caddy expressed a preference for one fishing season—he said two seasons may be workable if there are things like good catch monitoring and an agreed catch allocation scheme. He has certainly by no means ruled out the idea of a second or another commercial fishery. I think that's the first point to emphasize.

The second point I'd make is that in your comments you talked about a full-scale commercial fishery not being compatible with the spring fishery. I think if you look at what we have currently underway and what we offered, we were not talking about a full-scale commercial fishery in the fall. What we had offered was a very limited commercial fishery. The number of traps was limited. By way of comparison, in the spring fishery there are approximately 50,000 to 60,000 traps fished, and our proposal offered Burnt Church the opportunity of fishing with 900. I know that the catch rates are much higher, but clearly 900 traps would not be a full-scale commercial fishery.

In addition, the proposal we made was to restrict the harvesting activity to small boats, vessels under 20 feet, equipped with no mechanical trap haulers. Third, the fishery was to be conducted within a very restricted geographical area.

All of those provisions would have restricted the opportunity of the community to engage in what you're calling a full commercial fishery. We felt that proposing something of that nature was a way in which we could move towards a regulated fishery in that area that could be well managed and would in fact be far preferable to the situation we encountered last year.

• 0930

So we think our proposal was quite in keeping with our responsibilities both for conservation as well as addressing the Marshall treaty right, as well as protecting the interests of commercial fishermen, because as a key part of what we're proposing, the impact on the spring fishery is being mitigated by the licence retirement program. We currently have eleven commercial licences that have been retired from the immediate area and are not being fished, and that provides a reduced impact on the spring fishery and helps to avoid impact on the commercial fishermen who fish at that time.

Mr. John Cummins: There are a number of areas in which I could question you here on specifics, but in general I would say that the department's record at enforcing the regulations on these separate native fisheries has not been good, and it has had some destructive impacts on the fishery. One only has to look at B.C.; you know as well as I do the problems that are there.

But what you were faced with in Burnt Church was individuals and a community that were not prepared to play by the rules. For example, Mr. Ward was quoted as saying that they weren't going to recognize the geographical boundary imposed by the federal government. You had Mr. Simon, who was recently quoted as saying he's been fishing outside the DFO-imposed boundary because that's where the lobsters are. He said he lost his remaining traps, but despite that, he was planning to set more. He said he was just trying to do what he has the right to do and even that is hard. That was while he was loading three crates of lobster into the back of his truck. He said he had no choice but to sell them on the black market, that he couldn't get fair market value for them.

So these people are openly saying they have no interest in complying with the regulations, yet you've allowed this fishery to go on, I think, without taking the proper precautions to ensure that they would be.

Mr. Patrick Chamut: Thank you, Mr. Cummins.

First of all, I don't believe the individuals you cited necessarily represent the views of the community. We do know there are people in that community who are opposed to any sort of agreement with the department. We know they continue to make statements along the lines of what you've said. But I think we should let facts speak for themselves.

Where fishing traps are placed outside the boundary of the authorized fishing area, they are seized. Over the course of pretty well the last month since the licence was issued, on every day we have had enforcement patrols, and virtually every day we have seized traps set outside the boundary. So we have done a good job in enforcing the terms of that licence.

On the issue of sale, you have pointed to comments made by individuals. Yes, we recognize that there is sale activity that is going on, and we are carrying out enforcement activities to address that. In my view, the comments that are made that you've cited represent somewhat of a.... It's unfortunate that the community was not able to take advantage of the agreement that was offered by the department, because in my view, individuals are not getting the full benefit that they could have, either in terms of jobs or carrying out an authorized fishery allowing some commercial sale.

Obviously we know there is sale, and we are doing things to deal with it. We hope we'll be able to work more cooperatively with the community, because in the long run it's better for them, it's better for the resource, and I think it would be better for the government.

Mr. John Cummins: According to the Fredericton Daily Gleaner of September 5, 2001—and I'm sure their reporting would be accurate—they say:

Band leaders said native fishermen feel they have no choice but to follow the migrating lobster, even though it will take them outside the limits of a federally approved fishing zone close to the reserve.

“The lobster is moving and we're going to be moving with them,” said band councillor Leo Bartibogue.

I'm sure I've pronounced his name incorrectly, and I apologize to him, but he's spokesman for the Burnt Church Rangers, who patrol the aboriginal fishing areas.

• 0935

The defiance is there, and it's not just isolated individuals. This man is apparently a councillor at Burnt Church, and they said right from the outset that they don't intend to abide by the law.

The report I have from fishermen in the area is that there has been ongoing activity, and the only time that DFO has taken any action is when they have repeatedly called and requested that action be taken. So I think they've been acting correctly; they've been trying to protect the resource, and DFO has just grudgingly assisted.

I'm also told that the band was offered 17 licences this year but fished only 13 of them. Why didn't you make an effort to encourage the band to fish fully the commercial allocation they had, rather than set up a separate fishery?

Mr. Patrick Chamut: Thank you, Mr. Cummins. You've made a couple of points.

First of all, I think we would be remarkably naive if we expected that there would not be comments of defiance from some individuals in the community. We don't expect that everybody is necessarily going to have the same view. My only comment about those suggestions that people are going to follow the lobster offshore as they move is that as people do that, we will be seizing traps, and if people persist, then we will seize boats and equipment. I would simply let the record speak for itself.

The comments you're hearing from fishermen that we have somehow grudgingly gone out and done enforcement are, plain and simple, false. We have gone out every day and conducted patrols, and on a very routine basis, if they're outside the authorized zone, that equipment is seized. If people move out to follow the lobster, as they say in the quotes that you've made, the very same thing will happen. We are enforcing the boundary of that zone, and we're doing it very effectively.

On the second point, about the 17 licences, you are correct. We did offer a total of 17 licences for Burnt Church to fish in the spring fishery; they chose to use only 13, and the four have essentially been unused. We have strongly encouraged them to take advantage of some of the offers that we're making, because we do agree that this is the appropriate way for them to prosecute their treaty right. Unfortunately, the community has not been willing to take that up, and much as we have tried, we cannot force them to take the additional four licences and fish in the spring fishery. That was not their choice.

The Chair: Thank you, Mr. Chamut.

Mr. Cummins, we'll come back to you.

[Translation]

Ms. Tremblay, do you have any questions?

Ms. Suzanne Tremblay: Yes. Thank you, Mr. Chairman.

This is precisely what I would like to know. You say that it would be in the best interest of the Native community to accept the proposal that you made. They felt it would be much better not to accept your proposal, because you were going to give them a fishing licence in any case and they could do what they wanted. Therefore, you have been obliged to take extra precautions and to provide more protection. You are arresting people everyday.

Are you always arresting the same people? What are the penalties? You seize the traps, but afterwards, what happens? Are they obliged to pay fines because they put traps in the wrong places two or three days in a row?

You say that if necessary, you will seize fishing tackle, possibly even boats. What is it in fact that they refused? What is the detailed offer that you made to them, and what incentives did it include?

You say that in spite of the lack of an agreement, they're given a licence in any case. They would be crazy to come to an understanding with you if they will get a licence anyway. I do not understand why you gave them a licence if they did not come to an understanding with you as the other bands did. Why is this band so stubborn? What is the basic claim that you are not addressing, which is stopping them from signing an agreement with you whereas many others have signed?

[English]

Mr. Patrick Chamut: Thank you. I'm going to split my answer into a couple of parts. I'm going to deal first with the licences that we offered to the community for them to fish in the regular commercial fishing season.

I think our preference has been that exercise of their treaty right would be done within the regular commercial fishery. To that end, we have offered them lobster licences for the spring fishery. We have offered them access to snowcrab fishing in the gulf; and I believe we also offered to let them fish species such as mackerel, rock crab, and herring.

• 0940

We recognize that we have an obligation to provide them with access to the commercial fishery, whether there's an agreement or not. In many cases we have still done this where there is no agreement—it's not unique to Burnt Church. We issued commercial licences because we recognized an obligation on our part to do that. So in terms of access to the regular commercial fishery, we will do it whether there's an agreement or not. That's the first part of my response.

The second issue deals with the arrangement we were trying to get in place for the band's fall fishing activities, which generally focus on lobster. You asked what sorts of incentives we provided to get the community to sign. We provided them with a limited opportunity to fish lobsters commercially. As I explained in my answer to Mr. Cummins, that included fishing 900 traps with small boats.

The incentives also included other employment opportunities for the band to earn income, such as the cooperative science project on lobster. We believe approximately 35 members of the community could have worked with our scientists to catch lobsters, tag them, release them, and collect information on them. Those jobs would have lasted for approximately ten weeks, and would not only have helped our science work, but would also have provided employment and income to members of the band.

We also wanted to cooperate with them in managing the lobster fishery, so there were jobs in activities such as dockside monitoring and getting catch statistics. There were a number of opportunities for employment through our offer. In addition to the commercial fishery and the jobs from the study on lobsters, we also proposed to work cooperatively with the band on the Tabusintac River salmon project. Approximately $200,000 was available to collect information on the salmon, such as its abundance and various other characteristics of the population.

We felt that what we were putting forward—authorizing a commercial fishery in the fall—was a very significant compromise in the federal position, and we felt that there would have been a significant benefit to the community had they accepted the arrangement. This was not an endpoint, but a starting point to work cooperatively with the community. There are other things we can do with them, other activities in the regular commercial fishery that would provide benefits, employment, and income, and greater prosperity to a community that needs it. It was a stepping stone to more things.

The Acting Chair (Mr. Dominic LeBlanc): Mr. Chamut, can I ask you to try to conclude quickly.

Mr. Patrick Chamut: I'm sorry if I've gone into too much detail, but I thought it was important to do so.

Just one final point: what is the community demanding? Clearly, it would be better if the community itself could explain to you what they want. But in my dealings with them, they're essentially looking for autonomy and a greater degree of sovereignty in establishing their own fishing plan, their own fishing rules, their own management capability. They simply reject any departmental role in regulating their activities, and that's not something we can accommodate.

[Translation]

Ms. Suzanne Tremblay: I have another small question.

The Acting Chair (Mr. Dominic LeBlanc): Could we come back to you later? You have already taken eight minutes, and you supposedly had five.

Ms. Suzanne Tremblay: All right.

The Acting Chair (Mr. Dominic LeBlanc): Thank you very much, Ms. Tremblay.

[English]

Mr. Steckle, for the Liberals.

• 0945

Mr. Paul Steckle: Mr. Chamut, in your opening statement you mentioned that 21 agreements have been signed. Two years ago, or thereabouts, when the Marshall decision came down and we began the process of trying to negotiate with the various bands, we knew that the first agreements were going to be temporary, short-term ones. We now have 21 agreements for this year. Are those long term, short term, intermediate, or what? Can you explain to the committee?

Mr. Patrick Chamut: Thank you, Mr. Steckle.

We have a total of 21 agreements, and they come in different sizes. Eight agreements are what we call long term: they convey benefits over a three-year period. We also have 13 one-year agreements, and they do two things. First of all, they roll over the benefits provided in the last year we negotiated the arrangements—so all the fishing access from last year is rolled over into the second agreement. That's one component. The second component is for the bands to agree on what their food, social, and ceremonial harvesting will be.

Our long-term target is getting 34 long-term agreements with 34 first nations. From the work we've done to this point, it's obvious that negotiating three-year agreements is actually more challenging than negotiating one-year agreements, because the first nations want a little more time to do it. They want to get it right, and we share that objective. Many of them are still building fishing capacity, to make full use of the access provided last year.

So I don't think there's a great concern that we have not yet got 34 agreements. I emphasize that all the fishing carried out by first nations to this point—with the one exception, periodically, of Burnt Church—has been consistent with the rules, regulations, and licensing. It's been very orderly.

Mr. Paul Steckle: I guess we're all interested, of course, in why we can't sign the same kind of agreement with Burnt Church as with all the others. Why is this one group different? That's something you may not want to talk about at this meeting, but I think it's something we all share. Why is Burnt Church different from all the others? If you could, I'd like to have a response to that.

The second part of my question: in terms of efforts put towards the fall fishery—something that isn't given to the other groups—is this intended to be a commercial fishery, or just a food and ceremonial type of fishery? When the DFO gave them that fishery, what were its intentions?

Mr. Patrick Chamut: Thank you, sir.

First of all, of the first nations in Atlantic Canada, there are two groups opposed to signing agreements with the department. One is Indian Brook in Nova Scotia, and the second is Burnt Church in New Brunswick. I think each first nation is unique in its aspirations, interpretations, and negotiating approach. So it's difficult for me to explain exactly why some first nations are not prepared to cooperate with the department.

In the case of Indian Brook, their approach is to challenge through the courts. In the case of Burnt Church, I think the effort is essentially to try to assert a unilateral, independent management authority. That certainly represents the views of some members of the community. But as I say, each first nation is different, and I don't think I would want to go into any more detail.

On your question about the commercial fishery versus the food fishery, we offered Burnt Church a limited commercial fishery. That offer was not accepted, so it was accordingly taken off the table. And the fishery currently underway is a fishery for food, social, and ceremonial needs. It is not legally authorized for the members of the community to sell the product they're catching.

• 0950

Mr. Paul Steckle: I think Madame Tremblay perhaps alluded to this, but on the issue of shots being fired, were charges laid? Were they stayed? What has happened with that part of it? Also, some assets were seized—whose assets are they, now that they're seized? Who owns them? What are their intentions of getting rid of them? Who's ultimately going to realize those assets?

Mr. Patrick Chamut: Thank you, sir.

First of all, on the question of charges, there is an investigation underway by the RCMP to look at individuals who damaged fishing traps. Damaging property is a criminal offence, and evidence has been collected. The RCMP investigation is continuing, but to this point no charges have been laid.

Regarding the firing of shots, and concerns about the burning of vessels, those are under investigation as well, but until the investigations are fully completed, no charges will be laid.

In terms of assets seized, I'd put them in two categories. Some, like the lobster traps, were seized because they were being used to fish in an illegal manner. They belong to persons unknown, and because we couldn't necessarily attach an owner to them, the traps simply become forfeit to the crown. In the normal course of business, they would be sold under the crown assets disposal program.

In the case of any vessels seized, these can in fact be identified to the individual. They are held by the department until such time as the courts have dealt with the charges. If the prosecution is successful, the vessels may be forfeit to the crown, depending on the view of the court.

The Acting Chair (Mr. Dominic LeBlanc): Thank you, Mr. Steckle.

Mr. Wappel, there are three minutes left. Do you want to go quickly?

Mr. Tom Wappel (Scarborough Southwest, Lib.): I'll ask two questions quickly.

First, in your opening remarks you said that the band requested a science study of lobster, and Dr. Caddy was engaged. Was Dr. Caddy also involved with the band agreement?

Mr. Patrick Chamut: Yes, he was.

Mr. Tom Wappel: All right. So the band requests a report. The scientist is agreed to by the band. The report is made, and obviously it doesn't favour the band. What did the band say?

Mr. Patrick Chamut: A careful reading of the Caddy report would indicate that in this somewhat polarized debate, either side can take comfort. You can go through and identify quotes that indicate that what the first nation wants to do is acceptable. You can also find quotes that indicate it is unacceptable. If you look, you'll see that at the back of the report there are comments offered by both Burnt Church and by the Maritime Fishermens' Union. You'll see they have diametrically opposed views on what the report says, depending on what I see as somewhat selective reading. I think inevitably that's what parties will do: look for quotes that favour the position they're putting forward.

Mr. Tom Wappel: Thank you.

You offered a limited commercial fishery. In your view, is a limited commercial fishery a right under the Marshall decision, or is it only food, social, and ceremonial?

Mr. Patrick Chamut: In our negotiations we try to be rights-neutral. Our agreements don't stipulate that this fishery is in satisfaction of a right. What we do say is essentially that the agreement is without prejudice to positions held by either party.

Mr. Tom Wappel: But that's not my question. You offered a commercial fishery. If push comes to shove, is it the department's view that commercial fishery of lobster in Miramichi Bay by Burnt Church is or is not in compliance with the Marshall decision?

• 0955

Mr. Patrick Chamut: In our approach we have tried consistently to negotiate an outcome. We've tried to find ways in which we can work cooperatively with first nations. I am clearly avoiding a direct response to your questions because—

A voice: It's because you're a good bureaucrat, Mr. Chamut.

Mr. John Cummins: In eight years I've never heard you say that, Pat.

The Acting Chair (Mr. Dominic LeBlanc): I don't want to cut you off, Pat, but that's the kind of issue I'm sure Mr. Cummins will want to pick up on.

Mr. Patrick Chamut: Mr. Chairman, can I just make one brief, final statement?

The Acting Chair (Mr. Dominic LeBlanc): Briefly, please.

Mr. Patrick Chamut: I'm not trying to simply dodge the question, because in all fairness our position is that determination of rights is done by the Department of Indian Affairs—or, conceivably, can be done by the courts. It's not done by the Department of Fisheries and Oceans. What we're trying to do with all the groups is find a negotiated outcome we can live with, one that will provide satisfaction that our obligations are being met while at the same time we have a peaceful and orderly fishery that does not adversely affect third parties.

The Acting Chair (Mr. Dominic LeBlanc): Thank you, Mr. Chamut.

Mr. Cummins.

Mr. John Cummins: If I can use a selective quote, methinks you protest too much there, Mr. Chamut.

You talk about quotes and selective quoting. Now, Mr. Caddy in his report basically only quotes two sources. He quotes DFO documents and he quotes a paper by RISM Research entitled “Disparities in Law and Power: the Marshall Decision and Maritime Canadian History”.

You were talking in response to one of my colleagues about the number of people who have signed, but in that report Mr. Caddy quoted, there's a statement that “offers as high as $22 million per band were made and signing bonuses were available for councillors who are band signatories”. Did DFO authorize payoffs to councillors who supported these multi-million-dollar deals, as suggested in this research paper?

Mr. Patrick Chamut: Mr. Cummins, I am actually surprised you would ask that question. Of course there was absolutely nothing of that nature, and in fact I'm not even aware of the source of that information. It certainly would not be anything the department would be aware of or condone.

Mr. John Cummins: Well, as I suggested, that was in a paper Mr. Caddy quoted, and I assume that he would only quote papers that were beyond question.

Mr. Patrick Chamut: My response, Mr. Chairman, is that clearly the author of the paper is in a better position to answer questions on the points he's making than am I.

Mr. John Cummins: Well, it was a question about DFO, and I know you won't dodge an answer, so that's why I asked you.

It seems to me that the band's response to the department and their negative response—we'll fish where we want because it's our treaty right—is more understandable when you repeatedly suggest this morning that there is a treaty right to harvest lobster. This is contrary to the information the Department of Justice has given in the Shubenacadie case, where they say very clearly, and I quote, that the Attorney General specifically denies that these plaintiffs “have any constitutionally protected aboriginal or treaty rights to fish lobster in St. Mary's Bay”.

He denies that the plaintiffs, “their predecessors or the Mi'kmaq Indians in Nova Scotia fished lobster for food, social, or ceremonial purposes” and denies they fished for a moderate livelihood at the time of the treaties. He says:

Prior to contact with Europeans, trading lobster for necessaries was not an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group the plaintiffs are successors to, and therefore no aboriginal right can be claimed.

This is from the Department of Justice, Mr. Chamut. If the Department of Justice is saying that, how can you come in here this morning and say that there's a treaty right? If I'm confused by what you're saying, it's easy to understand how others would be confused. I've got a reasonable level of understanding of some of these issues.

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Mr. Patrick Chamut: Thank you, Mr. Chairman.

I have a couple of responses. First of all, I did not say that there was or was not a treaty right. What I said was that we have tried to negotiate arrangements with first nations in a cooperative framework that will provide them with access to the commercial fishery in such a manner that they can achieve a moderate livelihood.

In the case of virtually all those first nations where we are able to negotiate agreements, our preferred approach is to do just that. We're not engaging in litigation with those groups. What we're trying to do is negotiate an arrangement that will provide them with an access to the commercial fishery that will enable them to have a moderate livelihood, and that's very definitely our preferred approach.

In the case of Shubenacadie, which is the group also known as Indian Brook that I referred to earlier, that group is challenging a number of aspects of our approach, our regulation of the fishery, and they're challenging it in the courts. Clearly, we're not able with that group to sit down and negotiate an outcome.

So in that circumstance, when you're not in a negotiating forum but rather you're in an adversarial forum such as litigation, then we will obviously take a different approach. In a court process we will put first nations' assertions to the full test to demonstrate or prove what it is that they are asserting, and it's an entirely different approach. We're quite prepared to sit down and negotiate to try to find some agreed accommodation. In the absence of that, if there is a court action, then we expect that there will be a full effort made to demonstrate the claims that are being made. We think that's an appropriate approach to take.

Mr. John Cummins: What you're saying, Mr. Chamut, is that there is one truth in court and another one outside the court.

Mr. Patrick Chamut: Well, actually, that's your construct, Mr. Cummins. It's certainly not mine. I think what we're saying is that based on the Marshall decision, first nations very clearly do enjoy a treaty right.

You can quite easily argue over whether it is this big or this big or this big. We believe—and the approach we've taken is—that it is far preferable to sit down and try to negotiate an outcome that provides for security and clarity for all parties. That's the approach we're taking.

The other approach, that of litigation, is one we would not recommend be taken for 34 individual first nations because it's going to be extremely costly, time-consuming, and destabilizing, and we prefer negotiation.

The Acting Chair (Mr. Dominic LeBlanc): Mr. Chamut, thank you.

We'll come back to Mr. Cummins. Mr. Stoffer.

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

How many aboriginal people live on the Burnt Church reserve?

Mr. Patrick Chamut: I think that according to the last official statistics we had, there's a total of 1,280 who live on reserve. Those are official. I think it has probably increased somewhat since then. And there are other members of the community who live off reserve, about 200.

Mr. Peter Stoffer: Okay, and you indicate in your report that there are approximately 1,050 traps currently being fished in the authorized area. We've got Mr. Caddy's report and other reports that say that at this time of year you can catch up to five times more lobster than you can in the normal season.

Mr. Patrick Chamut: Right.

Mr. Peter Stoffer: So how many pounds of lobster have been caught in the authorized area at this time?

Mr. Patrick Chamut: Our estimate is that there has been a total catch of approximately 100,000 pounds, and you're right about the catch estimates being five to six times higher than in the spring. However, I would also urge that the approach we're taking of keeping the fishery in a box.... Obviously there's a depletion of catch as time goes by, because once you've taken the lobsters out, they're gone. By keeping them in the zone, there's obviously not just a continuous escalation of catch.

Mr. Peter Stoffer: Mr. Chair, the line of questioning I'm going to is this: if there are approximately 1,200 people on the reserve and up to date almost 100,000 pounds of lobsters have been caught for food, commercial, and ceremonial purposes only, I can't believe that this many people ate that.... Oh no, food, commercial, ceremonial—

Mr. Patrick Chamut: Social.

Mr. Peter Stoffer: —and social. I can't believe that this many people on a reserve ate that much lobster in the food fishery.

• 1005

So Mr. Cummins is correct when he leads to the fact that there are, in my belief.... The reports we get are that many of these lobsters are being sold illegally on the black market. Last year I asked Mr. Stagg of DFO what the government is doing to prevent the illegal sales of lobsters, because at that time he indicated almost 300,000 pounds were caught illegally, but they didn't know where they went. So I'm asking you: Is that 100,000 pounds staying within the community for consumption within the community, or does DFO know for sure that it's being sold illegally? And if it is, what is the government, working with the province, doing to stop the illegal sale of this fishery?

Mr. Patrick Chamut: Mr. Chairman, through you, yes, we're aware of those sorts of considerations. We know that some of that lobster is moving off the reserve. We know that it is entering commercial sale. And we believe it involves commercial sale, on the one hand directly to individuals—in other words, there are reports of people selling lobsters door to door. And secondly, there are reports, and our own investigations, that would indicate that some of the lobster is moving more directly into larger commercial outlets.

It is a very difficult challenge to deal with illegal sale because one has to prove continuity of evidence from the point of capture to the point of sale. So a lot of what happens is that lobster is taken onto the reserve, and it is eventually taken off the reserve by various means. And there is a legal commercial fishery underway now immediately adjacent to Miramichi Bay in lobster fishing area 25. So once lobsters come off the reserve, then it's obviously reasonably easy to bleed them into the regular commercial fishery, and we believe that certainly some of that is happening.

So what are we doing? Clearly, we have a number of enforcement individuals who are working with the RCMP and also working and staying in touch with the province. I will not be in a position where I can offer further comments about exactly what is being done, but we are certainly involved in monitoring and investigating this issue. And we have worked with the province. We've had meetings with senior staff in the province trying to find ways to cooperate with them. And there are commitments on the part of the province that in the event there's evidence that people with processing licences are accepting and selling illegal lobsters, then they've indicated they will withdraw the licence issued by the province that allows them to engage in processing. So we are doing a number of things.

Mr. Peter Stoffer: Thank you.

The Acting Chair (Mr. Dominic LeBlanc): Mr. Stoffer, briefly. You're over time now, but you're such a good guy, we'll give you another minute. So go ahead.

Mr. Peter Stoffer: One of the aspects that would integrate the aboriginal communities into the fishery is not just necessarily on the commercial side, but on the side of salmon restoration, in terms of the many rivers. Many groups, like the Sackville Rivers Association and the Atlantic Salmon Federation, have been asking DFO for funding not only for themselves but to incorporate the aboriginal community into restoration of salmon habitat to bring back the wild salmon in many of those rivers. That's just a comment.

I have a question, Mr. Chairman, that I think Mr. Easter would have asked. There are many media reports coming out of Prince Edward Island that there's an awful lot of illegal fishing going on in the lobster fishery off P.E.I. And the concerns we heard from the fishermen last year were that some enforcement officers were being taken off the island and moved over to the so-called “hot spots” of Burnt Church. One, is that true? And two, what is DFO doing to stop any illegal fishery from the non-aboriginal communities—which is what they're pointing their finger at—around P.E.I.?

Mr. Patrick Chamut: Thank you, Mr. Stoffer. I'll make a couple of comments. I'm going to give a general response, and then Mr. Jones would have some additional information.

First of all, there was a large number of staff who were involved in enforcement at Burnt Church last year, and we did take staff from a number of areas to bring them into Miramichi Bay. This year we've not had to do that. The vessel that is operating out of Alberton, the Chevarie, is still in that area, and it is operating in supporting enforcement activities. And secondly, we have not had to take enforcement staff out of P.E.I. to assist us at Burnt Church. They have stayed in P.E.I. In fact we've actually had the reverse, where people from New Brunswick and Nova Scotia, during critical times in P.E.I., have gone in to help. So we have not taken staff out of there and our capacity is undiminished.

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Mr. Jones, I'm sure, has some statistics in terms of activities we've undertaken to deal with illegal activities.

Mr. Jim Jones (Regional Director General, Gulf Fisheries Management Region, Department of Fisheries and Oceans): Actually, I'm going to attempt maybe just to continue.

The staff in P.E.I. has actually been augmented this year by new fishery officer recruits who are there, by new equipment they have, and by supplementing some of the overtime budgets to counteract some of the issues that some of the fishermen have raised.

When you look at the level of enforcement in P.E.I., and as I think Mr. Chamut had identified, last year we did get into a circumstance where we had a lot of officers from a lot of different parts of the country working in Miramichi Bay. It obviously had some impact. This year we've avoided that. I think if we look at P.E.I. this year, the level of enforcement is actually quite stringent. I might add that for some of the charges we've brought to court this year in P.E.I., some of the levels of fines and even suspensions that we're getting are above what they would have been in the past.

I think the enforcement effort in P.E.I. is more than adequate. Obviously we never have enough enforcement officers to do what fishermen want to do, but we have program boats and zodiacs. We have 24-foot program boats. We have a 42-foot boat that's at sea 12 hours a day patrolling the lines between the fall and the closed season in P.E.I.

We're confident that we have an adequate level of enforcement to counteract any illegal activities in P.E.I.

The Acting Chair (Mr. Dominic LeBlanc): Thank you, Jim.

Charlie Hubbard, you had a question.

Mr. Charles Hubbard (Miramichi, Lib.): Thank you, Mr. Chairman. I'll try to be brief, but I'm not sure where I should be at the table.

First of all, I would like to say that this year—it's an annual problem—I was very pleased as a member of Parliament from the area to see the efforts being put forward by the fisheries people and by the RCMP, because they were doing quite an effective job there until September 16, Mr. Chairman. I was in Ottawa that day, but I visited the reserve myself and the area on both the previous two Sundays to this, and things seemed to be quite well under control.

However, we do have a very dangerous situation right now, because we've had what some residents in the white area adjoining Burnt Church, in fact being part of the Burnt Church community, contend was automatic rifle fire on the night of September 16. We're very lucky that we don't have some people who were seriously injured or even killed as a result of that so-called raid that came into the area.

I think the MFU, although they represent all the fishermen, did not support the raid, and they did not theoretically participate in the terms. But it was their members who were there. It certainly wasn't in the best interests of the solution that eventually has to come about in dealing with Marshall and dealing with Burnt Church community.

Mr. Chairman, in terms of the answers I've heard from the witnesses, I think that as members of this committee we have to reflect on a history that is much longer than the last three or four years.

A question was asked about Burnt Church, and of course Burnt Church is one of the three Mi'kmaq reserves on the Miramichi River. It's the only reserve that faces the bay. Both Red Bank and Eel Ground are inland upriver reserves. Traditionally, the Mi'kmaq people migrated up and down the river, and Burnt Church was the location where the Mi'kmaq people went for the summer and fall fishery.

Of course, with the definition of reserves, more than 150 years ago a reserve was made at Burnt Church, which included that community and some area up the Tabusintac River. The Burnt Church people were generally isolated from the major population areas of the Miramichi.

Your figures in terms of people living there may be a little bit high, because I've always dealt with around a thousand on reserve. In any case, it's an isolated area, an area of great economic disparity. They are looking for opportunities certainly to improve their situation.

Mr. Chairman, we also have to, as white people—non-natives they call us sometimes—recognize that the commercial fishery was developed in the last 50 or 60 years. Back in the 1930s in New Brunswick, eating a lobster was something that only poor people did.

• 1015

Commercially, our Acadian people in particular have developed a very attractive commercial industry that has brought a great amount of money to the Miramichi and to New Brunswick—in fact to all of Atlantic Canada.

When the fishery business became commercialized—traditionally the Indians, or natives, had fished—an offer was made. Many of them picked up a licence for some 25¢, which was the going rate back in the 1950s. Perhaps Mr. Jones could give me a better figure, but it was around 25¢.

Some of the native people maintained their licences over the period of time, but many didn't, through neglect and through not wanting to pay the white man in Ottawa, as they said. They didn't want to pay the 25¢ to maintain a commercial licence. At that time, they were fishing with small boats.

When this whole thing came to be of great value, the Burnt Church people probably had about a half dozen licences left. In fact, at the time of the Marshall decision maybe only two or three licences remained on reserve. So that is the Indian background to this—the native background.

Incidents and situations like this bring out some of the best and some of the worst in people. Some of the worst, of course, involves native people who want to provoke white fishermen. They will tell them great stories about great catches they've made and where they've sold the lobsters. Some of them are true and probably a lot of them are not true, but it is provocation.

Then we have MFU members who want to believe the worst. They believe all these rumours. They don't believe DFO; they don't believe anybody about what's happening. As a result, we see something like what happened on September 16.

There are some points the MFU make that I think are not very fair. For example, when we give a licence to a native person, can they sell that licence or the right to that licence to a white fisherman to fish that licence? That's one major point we have, especially with the crab fishery. Natives have been selling their rights to fish to non-native people, and I believe those non-native people are making a good deal of money as a result of the so-called agreements we're making with the reserves.

The 100,000 pounds or 200,000 pounds of lobster that were allocated to the food fishery in the past are extravagant amounts, in terms of what one person might consume on reserve. In fact, Mr. Jones, a few years back we signed a food fishery agreement with them for something like 300,000 pounds. This is not a realistic amount. What does a native person do with a consumable item that can't be maintained over any period of time—each man, woman and child having 300 pounds over a short period of time?

The other point I would like to suggest to our witnesses is that with these rumours about who's catching what and who's selling what, it might be good to have observers—both white and native people—in these areas to really give supposedly non-biased reports to everyone about what's happening.

Right now we have the problem that people don't believe anybody. Our MFU group certainly strongly believes.... For example, I read in the Caddy report that two seasons cannot exist. We can't have a fall season and a spring season. It seems to be very clear to me when I read it. Now there are parts that certainly differ, but we have to have some answer as to DFO's interpretation of this report.

In terms of having somebody out there watching and giving, it would clarify the situation. So I would make that recommendation. I would like to hear from our witnesses what their responses would be, as Mr. Stoffer said, to the large amount for food, and to the idea of having a third party or a fourth party.

Finally, I want to congratulate DFO and Mr. Vickers, the inspector in the area with the RCMP, who has done a tremendous job. We haven't had road blocks this year, or the incidents that happened other years. Hopefully, we'll see some solution, but it's a two-sided business. The natives have had a 3,000- or 4,000-year history in the Miramichi. The MFU have developed an industry there, which is very good for our area. Somehow we have to resolve the issue and bring forward some solution to a very difficult situation.

Sorry to have taken so long.

The Acting Chair (Mr. Dominic LeBlanc): It's important, Mr. Hubbard, that the committee hear from you as well, so thank you.

Jim or Pat, do you have brief comments? Then I want to go to Mr. Hearn.

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Mr. Patrick Chamut: Thank you, Mr. Chairman.

I agree with the comments Mr. Hubbard has made. Clearly, history is really important. I know parts of that history are recounted in the Caddy report. I think it's something that helps to create a better understanding.

I have a couple of questions. You asked about selling licences. The first point is that licences that are conveyed to the community cannot be sold. They cannot permanently take that licence and sell it to another. I know that's not your point, but I think there may be some misunderstanding. Just to be clear, the licence conveyed to the community is a community asset. It stays in the community and is not to be sold.

Another issue you're getting at is that with their crab allocation in Burnt Church, they did not fish that allocation themselves. They essentially got into something that we call a royalty charter, where they engaged an existing vessel to fish on their behalf.

We do not condone or accept royalty charters, but we are prepared to let some leasing of vessels go on, provided it's part of a training initiative. People in Burnt Church have no experience in the crab fishery, so they need some training, in order to get engaged. What happened in Burnt Church was part of a training program, or I should say that was part of the intent. It may not have been met as comprehensively as we would have liked.

In terms of the food fishery, I think it's fair to say it's been a very difficult problem throughout Canada, in terms of trying to regulate, or define and then regulate, the amount of fish or fish products necessary to meet food requirements. There is no clear formula, and there are times when excessive amounts are being taken. I know early in the post-Sparrow era, very large amounts of lobster were taken in many communities.

As you've seen in a number of areas, our objectives are to take the lobster fishery and actually make the food fishery a legitimate food fishery, and provide the opportunity for harvesting in the regular commercial season. We're trying to promote commercial fishing in the regular season and make the food fishery, which is an aboriginal right, a legitimate food activity. We have had some success. I would not say that success has necessarily occurred in Burnt Church, but there are other communities where we've been able to reduce the food harvest, as people get more engaged in commercial fishing.

On the third point, about information and observers, I agree with your assessment that a lot of misinformation is being communicated. We need to see if there are ways we can improve the communication links. In fact, we are doing that in Miramichi. We've been communicating effectively with many members, but that has not necessarily given everybody an equal amount of understanding. We are looking for ways to try to improve the transparency and the exchange of information, because rumours tend to get exaggerated and fly out of hand very quickly. So your suggestion is one we can certainly look at.

Right now, I don't think it would be the right climate to try to put those kinds of folks in the immediate area, but in the longer term it's certainly something we need to think about.

The Acting Chair (Mr. Dominic LeBlanc): Thanks, Mr. Chamut.

Mr. Hearn, do you have a question?

Mr. Loyola Hearn (St. John's West, PC/DR): Thanks, Mr. Chairman.

Some of my questions have already been answered, but I'd just like to make an observation on Mr. Hubbard's intervention. I think it shows that in relation to not only problems like this but problems generally, the people who are close to them and on the scene know more about what's going on, and quite often are not the ones involved in the solution. Perhaps we could take a lesson there and involve more people directly involved, in trying to come up with solutions.

I was amazed. One of the questions I had was how many people live there. The amount of lobster being caught, compared to the number of people, is enough to aggravate anybody. It's almost like people who are trying to make a living, the regular fishermen in the area, see the free product going on the market, and they try to compete. It's not only a matter of some of the product being taken from them, but they're then beaten in their own markets, because people can sell them at cheaper prices. You can see the frustration.

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One of the other things.... It's the only question I'll ask. I guess it ties in somewhat here, but more generally. Because of the change in the fishery, because of the moratoriums, and the decline in numbers in our fishery, we have an extremely difficult time trying to get into the fishery, to get a licence. You have to be experienced. You have to be a core fisherman. You have to reach a certain standard, etc.

People who have been sharemen for years sometimes have no way of getting a licence in an enterprise of their own without paying an exorbitant price when somebody else vacates a licence, yet in some areas we see native fishermen who are being given licences, or given federal money to buy licences that the average fisher can't get. That's also extremely aggravating. I'm not sure whether it's part of the problem here, but if not, how we can address something like that? What it's doing is completely frustrating people who have made their living in the fishery for years—our regular commercial fishermen—who perhaps don't understand the need to try to find a way to help the native people get into the fishery. I appreciate that, but it is aggravating when they see somebody given carte blanche opportunity to get in with money, boats, whatever, and they have been investing their way up the ladder and just can't make it.

Mr. Patrick Chamut: Mr. Chairman, thank you.

This is an area that clearly we're not insensitive to—concerns arising out of our licence retirement program—because we know in our efforts to acquire and retire licences to be able to provide them to the first nations, it does raise the value of licences. It is a market we're operating in, so the price does go up. It does make it more difficult for people to enter.

So we're not insensitive to those concerns, but I think you will appreciate we're operating in a very difficult situation. We clearly have to acquire licences in order to provide them to first nations, and we're doing it in a way that reflects the recommendations we received from this committee, and in fact from commercial fishermen, who were supportive of a licence retirement program so that there would not be direct impact on individuals who might otherwise be displaced.

We are working to try to find ways to alleviate some of the frustrations and tensions, but I have to be candid in saying it's a very difficult job for us to meet everybody's objective in this area. As I say, we're not insensitive, but at the end of the day, we need to acquire licences and we need to do it in a way that will avoid direct impacts on those individuals when we need to make some room for accommodating first nation participation.

The Acting Chair (Mr. Dominic LeBlanc): Thank you, Mr. Chamut.

Mr. Cummins.

Mr. John Cummins: Thank you.

Mr. Chamut, you just said the food fishery and lobster are an aboriginal right, and I'll point out to you again that's directly contrary to what the Attorney General said in the Shubenacadie case. I'm going to repeat my statement that there seems to be one truth for the court and one truth elsewhere. That creates a lot of problems.

Last week the committee received a document—this is a DFO document, and we'll assume it's the truth—entitled “Preliminary index of essential habitats for certain marine species of importance in the Eastern Region in New Brunswick”. On page 28, the section on the Miramichi, they're talking about striped bass and they point out that the commercial fishing of striped bass was closed permanently in March 1996. They say first nations have fished striped bass for food, social, and traditional purposes, and that the allowable catches in the agreement were based on community needs. Then it says catches by native fishers are unknown, but they suppose them to be lower than commercial landings. It says the commercial and sport fisheries are closed, so the only known landings come from the native fishery. Then they say that prospects of an increase in stocks in the immediate future are low.

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The connotation here is that on this very small fishery, there's no monitoring. You've suggested very clearly this morning that there are problems in this lobster fishery—a much larger enterprise—and I'm curious about enforcement on these issues. You're not monitoring the small striped bass fishery, which seems to me a much simpler operation than the lobster fishery. How do you hope to manage that lobster fishery, given the area and the intricacies of its management?

Mr. Patrick Chamut: Jim might want to make a comment about striped bass, Mr. Cummins, but you're leaping from striped bass to lobster, and suggesting that somehow we are not doing our job to enforce the lobster fishery. I think I indicated earlier that we in fact are doing a good job in maintaining the fishery within that zone, which is consistent with the licence that was issued. I would not necessarily make a link between striped bass fishery, which can occur over an extremely broad area, and a lobster fishery, which we know is very restricted geographically and subject to full enforcement by the department.

Possibly Jim has some comments about striped bass that might be helpful.

Mr. Jim Jones: It's a different kind of issue you are raising. Catches of striped bass are essentially incidental catches in other fisheries such as box nets, gaspereau, smelt, and things like this. The aboriginal involvement is probably fairly minimal at this stage. The retention of striped bass, because of the state of the stock, is not allowed. Nonetheless, some try to do it. But it's not an issue. We do have enforcement that is directed toward some of these coastal fisheries relative to gaspereau, smelt, and other species, and that's where you'll see some of these incidental catches that do occur. It's an entirely different issue from dealing with a species like lobster.

Mr. John Cummins: The point I was trying to make is that the DFO scientists in the Barlow case that was before the courts said that in Miramichi, the lobster fishery is in trouble. They pointed out—and these were the DFO scientists—that since 1990, landings in the southern gulf have shown a steadily declining trend. They give the numbers, which I'm sure you're familiar with. They say:

...any increase in the number of traps in LFA 23 is equivalent to an increase in fishing pressure and goes against overall conservation objectives of increasing egg production and reducing fishing effort.

Essentially, by allowing for this fishery in the fall, you are increasing fishing effort, which seems to me to be contrary to what the scientists have been telling you. I have the numbers here, and as I say, I'm sure you have them. I could read them into the record if the chairman thought it was necessary at the end of the session. There has been a steady decline in catch in Miramichi since about 1990.

The Acting Chair (Mr. Dominic LeBlanc): Mr. Chamut, briefly.

Mr. Patrick Chamut: I have just a couple of comments. First of all, there has been a decline in the lobster fishery in various parts of the southern gulf. What you are doing is making an implicit link between what's happening at Burnt Church and what's happening with lobster populations, and I don't think you can do that. We know lobster populations have been at historically high levels throughout Atlantic Canada, and it's been a very good time for people in that industry. But we cannot expect—and we've been saying this for some time—that lobster populations will remain at historic highs. At some point they will decline. And we believe declines are occurring as a result of a whole variety of factors, most notably changes in ocean circumstance.

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The other point is that we know there are declines in lobster populations in other parts of the gulf where there are absolutely no aboriginal fisheries, so I think it's really inappropriate to make the link you do when you say that the fishery—

Mr. John Cummins: Well, Mr. Caddy made the link.

Mr. Patrick Chamut: —in Miramichi has declined because of what's happening with the Burnt Church Band.

Another point to make is about the increase in traps we talked about. We agree we do not want to see an increase in traps. That's why we have a licence retirement program specifically designed to avoid an increase in effort.

We currently have 11 licences in that zone that are not being fished. At an average of 12,000 to 15,000 pounds in that area, we have certainly covered off catch that would normally be taken. We're reducing the number of lobsters that will be taken in the spring fishery, because of reduced effort. This should cover off what's being taken by the Burnt Church Band this year. It is not an increase in effort.

Mr. John Cummins: There is no limit on the number of traps that can be used. You can't make that connection.

Mr. Patrick Chamut: But that's not the point.

Mr. John Cummins: Yes, it is.

The Acting Chair (Mr. Dominic LeBlanc): Gentlemen, we're going to come back to this, I'm sure, but

[Translation]

Mr. Roy now has the floor.

Mr. Jean-Yves Roy (Matapédia—Matane, BQ): Thank you, Mr. Chairman.

I wasn't the least bit surprised to see what happened in Burnt Church, in Miramichi Bay, because in our region, we have experienced similar events for years in the area of Restigouche. I am surprised that the department did not foresee this happening and that they did not try and prevent such a situation, that is to say that they were not present when the traps went into the water, and that the RCMP was not there in order to take immediate action, before any shots were fired. That really surprised me.

I am going to ask you a very direct question regarding the reaction of the people of Burnt Church, the non-Natives. If you were the owner of a boat, and I bought back your licence which put your crew on unemployment or on welfare, would you be surprised by the reaction of the person who found himself on welfare after having worked for 20 or 30 years in the fishing industry?

Should the department not have foreseen the possibility of helping these people who find themselves unemployed, as has happened in our region and has certainly happened in that region? It is not surprising that people reacted the way they did.

Some proposals were made. Mr. Hubbard put forward a proposal. I would like to know what concrete steps you intend to take, tomorrow morning, for those people who have found themselves unemployed following the buy-back of these licences. What are you going to do to help these people? You are not offering them a thing, sir.

[English]

The Acting Chair (Mr. Dominic LeBlanc): Mr. Chamut.

Mr. Patrick Chamut: First of all, Mr. Chairman, I need to say that there's a suggestion that we have done nothing, that we have stood by and watched all of this happen. Again, I would deny that this is in fact what's happened.

Personally, I spent most of the summer down in New Brunswick working with people from the Burnt Church Band and with people from local fishing communities. I met very frequently through the course of the summer with representatives of commercial fishermen in all of the communities around Miramichi Bay. We were trying to find a solution that would be acceptable to all parties. We believed that through all the consultations we had carried out we had arrived at an outcome that would be generally acceptable to the groups involved in this current dispute.

The events of Sunday were obviously of great concern. The individuals involved were ostensibly protesting the closure of a herring fishery. The herring fishery was closed because we had reached a quota and we needed to close it for conservation reasons, and the closure resulted in this event on Sunday.

You mentioned that the RCMP should have been there. In fact they were there, but it was beyond their capacity, and certainly beyond our capacity, to prevent 50 or 60 boats from coming through an area and doing what they did. It would be equally difficult to prevent the shooting of firearms by individuals on the shoreline. We certainly do not condone that, but it would be beyond reasonable expectation that something could have been done immediately with an event of this nature.

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What are we doing to deal with people? What we're doing is talking to them. We are also working very carefully with communities to find ways we can alleviate impacts. You talked about individuals on welfare and employment insurance. I don't believe we are creating that situation. We're trying to acquire licences from people who voluntarily wish to retire them. In this manner we are avoiding direct impacts on individuals who fear their catches are going to be reduced because of an increased native participation.

We are engaged. We are continuing our efforts. We in fact met last Friday with members of fishing communities, and we have agreed on certain approaches to help alleviate these sorts of things. We do have programs, we have active efforts underway to deal with the situation, and we have done a very effective job in dealing with a very, very difficult situation.

[Translation]

The Acting Chair (Mr. Dominic LeBlanc): Thank you, Mr. Chamut.

Now, it is Mr. Georges Farrah's turn. Do you have any questions?

Mr. Georges Farrah (Bonaventure—Gaspé—Îles-de-la- Madeleine—Pabok, Lib.): Yes. I will be brief, Mr. Chairman. Several questions have been asked.

I would like to come back to what Ms. Tremblay said at the outset. She was saying that it is not in their interest to come to any understanding, because we are obliged to give them some access, however limited it may be. I would like to hear your thoughts on that, Mr. Chamut. My understanding is that what we are offering the community of Burnt Church is far more generous than the current obligation of providing an inshore area of one mile by two miles. As a result, it would be in the community's interest to negotiate the offer made to them, given the present fishing conditions. I do not believe that the fact that there is a duty under the decision means that it is not in the community's interest to negotiate, given that there is an even more generous proposal on the table. I would like to hear your thoughts on that.

It also should be pointed out that there are 28 agreements out of 32 that have been signed or are on the verge of being signed, which shows that while the strategy may not be perfect, it still has some merit.

Regarding negotiation, is your model more or less the same across the board? Do you use a similar strategy during negotiation, or do you need a specific strategy for each of the bands, given the individuals involved, the various lobby groups? If not, do you have a general strategy that is more or less the same as the one that has worked everywhere else?

[English]

Mr. Patrick Chamut: Thank you, Mr. Farrah.

We do have a strategy we have employed for all of the 34 first nations. This strategy involves our federal chief negotiator, Mr. MacKenzie, who meets individually with each first nation. This approach has worked well for the majority of first nations, but it has not served us well in a place like Burnt Church. We are clearly taking a much different approach at Burnt Church, where we are prepared to operate in a manner reflective of the somewhat unique circumstances there.

So we do fine-tune our approach in recognition of situations that warrant it. In the case of the Burnt Church situation, we operated in a much different manner whereby we had different negotiators. We also made it clear that we were not trying to actually reach a formal agreement, which the community is not prepared to sign. We indicated that we were prepared to accommodate this through things like exchanges of letters, or a memorandum of understanding, which is much less formal and much less threatening to the community. We certainly did fine-tune our strategy to deal with the needs and aspirations of the community to the extent that we could.

You commented on the incentive for them to negotiate and indicated that the proposal didn't seem to be more generous. I have two comments on this.

First of all, the proposal would have provided them with a very significant increase in benefits. The offer we made would have probably given the band employment for about 50 individuals, which it does not currently enjoy. Second, there would have been commercial opportunities for people to fish.

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We offered 900 traps in a commercial fishery where sale would be legally authorized. You'll note that this is not significantly different from what they're currently fishing, but we were prepared to allow them to fish in a much broader zone than the one to which they're currently restricted. They would have made much more income from a legal fishery. Now they're forced to go through other black market approaches, so they don't get the full value for the product. So the offer itself would have provided significant benefits.

The second important point is that we indicated quite clearly that we were prepared to work with them. The agreement we initially put forward was not an end point, but was intended to be an opportunity to build a foundation of trust, cooperation, and mutual respect so we could actually engage in a broader array of opportunities. There are other fishing opportunities this community could enjoy, and we felt we could be working with them on a more cooperative basis on these opportunities in the coming years. There was incentive.

The other thing I know to be true is that many members of that community do not like the current context in which it is operating. They liken it to working within a war zone where there are people with weapons, there's potential for conflict, and many members of that community do not want a repeat of the difficulties we went through last year.

So I believe that there are many different incentives in place far beyond what is currently underway now that would have complemented coming to an agreement.

The Acting Chair (Mr. Dominic LeBlanc): Thanks.

Mr. Matthews, do you want to comment very briefly? Go ahead, Bill.

Mr. Bill Matthews (Burin—St. George's, Lib.): In the August 28 licence you issued for the ceremonial fishery, did you put a trap limit restriction on that? I know now you're saying they're fishing 1,050 traps, so I'm wondering if there was a trap limit attached to that licence. You allow them to fish now in a zone 1.5 miles by four miles. That's 1.5 miles offshore, as I understand it, by four miles. Now you're restricting the Burnt Church fishermen from fishing outside of this zone. You seize traps set outside that zone limit. But it would seem to me that if you have 1,050 traps fishing that small zone, there shouldn't be one lobster caught there now, because that's a tremendous amount of fishing pressure. So it's obvious that while you're restricting fishermen from going outside of the zone, you have no way of restricting lobster from coming into the zone.

What impact is this fishery having on the lobster resource biomass? Obviously lobster are coming into that 1.5 by four mile zone. If they weren't, there wouldn't be a lobster caught in that zone now, with 1,050 traps fishing for that period of time. It's obviously impacting negatively. While I understand your rationale for setting the zone and trying to restrict them, it's not doing the job of preventing a negative impact on the lobster biomass in the region. I'd like to hear a response to that.

The Acting Chair (Mr. Dominic LeBlanc): Pat, please respond briefly.

Mr. Patrick Chamut: Mr. Jones is chomping at the bit, so rather than both of us responding, I'll let Jim do it.

Mr. Jim Jones: To answer your question, Mr. Matthews, one has to look at different passages in the Caddy report. Dr. Caddy looks at the effect of a fall fishery and says yes, when you fish in the fall you are taking lobster you would ordinarily have caught in the spring.

How do you mitigate this? Having an agreement on the amount that could be harvested is the easiest way to do this. But in the absence of such an agreement, one of the things Caddy notes throughout his report is how the actual impact of fishing in the fall can be reduced by reducing the proportion of the area that can actually be fished.

When you look at the area they're currently authorized to fish—albeit for food, social, and ceremonial purposes—it is about half of one percent of the fishable area within Miramichi Bay. It's a pretty small component of the fishable area within Miramichi Bay—one-half of one percent of the fishable area.

Looking at this, then, yes, fishing is continuing. There are about 1,000 traps in that area, some being fished regularly, some not. Some hardly get fished at all.

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It's pretty hard, and I think Mr. Hubbard said you have rhetoric on both sides of this issue. The reality is probably somewhere else. But of the 1,000 traps, some are being fished aggressively, some are being fished every few days, and some are not being fished at all. I think the actual impact has to be looked at in the context of the area they're fishing in Miramichi Bay: the area is about half of one percent.

Mr. Bill Matthews: But there is supposed to be a number on the licence.

Mr. Jim Jones: No, there is not.

Mr. Bill Matthews: So they can set 2,000 if they want.

Mr. Jim Jones: Yes.

The Acting Chair (Mr. Dominic LeBlanc): Thank you, Jim.

Mr. Cummins.

Mr. John Cummins: It may be your percentage of the bay, but the fish have moved right into the bay, so it is an effective fishing area.

You allowed two fisheries for food, social, and ceremonial purposes in August, and I would suggest that it should have reflected, or did reflect, DFO's view of the needs for food, social, and ceremonial fisheries. Then you offered Burnt Church a commercial fishery in the fall twice, and both of those offers were rejected. So then you turn around and offer another food fishery. How much lobster can you eat? There's a limit to what you can eat. So it seems to me that you must have expected that these lobsters caught in this fall fishery were going to be sold.

Mrs. Suzanne Tremblay: Five is my limit.

The Acting Chair (Dominic LeBlanc): How many lobsters can you eat, Pat? Probably fewer than Jim.

Mr. Patrick Chamut: It very much depends on the size of the lobster, Mr. Chairman.

Mr. John Cummins: There is a size limit?

Mr. Patrick Chamut: Yes, there is a size limit.

Mr. John Cummins: In the regular fishery.

Mr. Patrick Chamut: Mr. Cummins is referring to two licences that were issued at Burnt Church. One was for a short-term period from August 20 to 27, which was intended to authorize food fishery and also provide some time during which we were—

Mr. John Cummins: That was the second one.

Mr. Patrick Chamut: No, that was the first one.

There was a food fishery authorized from August 20 to 27, a one-week period, and during that time we were trying to find a way to get together with the community to be able to conclude an arrangement for a fishery that would begin around September 1. As you recall from my statement, the community advised us on August 28 that they were not prepared to accept an arrangement. At that time we did impose a licence to fish for food, social, and ceremonial needs, and that licence goes from August 28 to October 20. We felt that this would in fact provide an opportunity for the community to meet their food requirements. We know from past practice that some of that product inevitably would be sold, but we did not feel that it was sufficient reason for us to simply attempt to shut the fishery as of August 28. We felt that it was appropriate for us to issue a licence that would enable them to continue to fish for food purposes until October 20.

Mr. John Cummins: Well, in allowing for that, I don't think you really thought out what an appropriate limit would be for food purposes. And of course that's the same problem we've had for years on the Fraser River and elsewhere in British Columbia. You allow for huge access under the notion that the fisheries are for food, social, and ceremonial purposes and are surprised when a black market exists.

We talked earlier about the declining catch since the early 1990s, and I'm told from many sources, and significant sources in the Miramichi, that the catches this year are down 15% to 25%. If you go into a community like Escuminac on the other side of the bay, the only business in town is lobster, and if people take a 15% or 25% hit in their income, they're bound to be upset. When they look across the bay and see that there are traps set outside the limit that you put, even though they may not agree with the limit, and that enforcement isn't extracting those traps from the water immediately, obviously they get upset. I think I can understand that, so why do you and the department have difficulty in understanding the motives? And why don't you put the fire out before it starts by getting the traps out of the water when they're set, or even preventing them from being set outside that appropriate area?

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The Acting Chair (Mr. Dominic LeBlanc): Mr. Chamut, briefly, and then we'll go to Mr. Stoffer.

Mr. Patrick Chamut: Yes.

As I said earlier, I have spent a large amount of time this summer with fishermen, as well as with Burnt Church, and I think I do understand the concerns. I've come to understand their perspective quite well. So I certainly would want to emphasize that I am not unaware of the position and the views they have. We're not insensitive to those either, and we're working hard to try to find ways to address that, as I mentioned, through licence retirement programs and other initiatives that we have put on the table with them.

The other issue you mentioned is the business about not getting traps out. We've had a long debate on that, and frankly, as I say, we believe we've done a good job in keeping the boundary of that zone free of illegal traps.

Mr. John Cummins: To your knowledge, is the catch down 15% to 25%?

Mr. Patrick Chamut: Some fishermen are down. I don't believe that's necessarily absolutely across the board, but I do know that catches were less this year than they have been.

The Acting Chair (Mr. Dominic LeBlanc): Thanks, Mr. Chamut.

Mr. Stoffer.

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

Again, to follow up on Mr. Hubbard's comment, I think it would helpful for the committee to have DFO formally respond to the Caddy report, and if we can get a copy, I think it would be very helpful to see what DFO's formal interpretation of that report would be.

Also, in Burnt Church, from my recollection—and Charlie, correct me if I'm wrong—there's one road, and there are only two ways of getting in and out by road. The asterisk is, if you're trying to stop the illegal fishery into the commercial sells, I don't think it would be that difficult, if indeed they're being trucked out, to monitor any kind of truck movements in and out of the area in terms of trying to prevent the sale of illegal lobster.

But my point is that I believe one of the tensions that has arisen is this—if you can answer it, great, if not, I'll understand: Is not the financial control of Burnt Church being handled by the Department of Indian Affairs right now?

Mr. Patrick Chamut: Yes.

Mr. Peter Stoffer: The committee may not know that, but the finances of Burnt Church are now handled under the Department of Indian Affairs. As to the reasons for that, I guess Mr. Nault or someone else can answer more profoundly, but is that not adding to the delay in any kind of long-term cooperative agreement that you may be trying to reach with them?

Mr. Patrick Chamut: First of all, the community is under third-party management, and they have been for some number of months. In my experience, I don't believe that has necessarily been the reason we can't come to an agreement.

Mr. Peter Stoffer: Okay.

Mr. Patrick Chamut: But I do know that it did make for some difficulties initially, when it was introduced. It made it more difficult for us to get together with the community, because they were still trying to find ways to adjust to that.

On the issue of monitoring truck movements, I think there are essentially two roads in and out of the reserve; it's like a U. Yes, we can monitor truck movements, and in fact we do monitor those. The difficulty is being able to identify any sort of unauthorized activity associated with that, because it's not illegal to have lobsters in a truck. That's essentially the challenge we have in terms of dealing with—

Mr. Peter Stoffer: Okay.

My last question I'm asking for Mr. Easter, because I know he'd want this asked.

You say about 100,000 pounds of lobster has been caught. How do you know? Can you explain to the committee the process of monitoring the amount of fish that has been caught in the so-called food fishery? we have no observers, as Mr. Hubbard said, or independent observers at least, so how do you monitor that, and how do you come to that figure for the amount caught?

Mr. Patrick Chamut: The estimate is done on the basis of extrapolation from what we know about catch rates and what we know about other characteristics of the way the fishery is normally prosecuted. We have people who look at the area that is currently being fished. They look at relative catch rates, and through all of that they end up with an estimate of the amount of catch in the area and the catch per trap. We simply extrapolate out to an amount that—

Mr. Peter Stoffer: It's an educated guess, more or less.

Mr. Patrick Chamut: Well, we think it's a scientific estimate.

Mr. Jim Jones: We have data from previous years and things like that.

Mr. Peter Stoffer: Okay, thank you.

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The Acting Chair (Mr. Dominic LeBlanc): Gentlemen, thank you very much.

Thank you, Jim and Pat.

Mr. Stoffer raised a good point, a request that we have a response from the department to the Caddy report. Is that going to be possible, Mr. Chamut? Can you undertake to provide the committee with the response of your department to the Caddy report?

Mr. Patrick Chamut: Certainly, Mr. Chairman. If that is the request of the committee, then the department would be obviously prepared—

The Acting Chair (Mr. Dominic LeBlanc): Okay, then, that is a request from the committee.

Mr. Cummins, I think you have another recommendation.

Mr. John Cummins: I wonder if we could have some preliminary catch data from the spring fishery.

The Acting Chair (Mr. Dominic LeBlanc): Would that be possible, Mr. Chamut? Could we have some preliminary catch data from the spring lobster fishery?

Mr. Patrick Chamut: Do you mean the one this year, 2001?

Mr. John Cummins: Yes, please, and Miramichi Bay, of course.

The Acting Chair (Mr. Dominic LeBlanc): Thank you, gentlemen. Thank you, colleagues.

[Translation]

Thank you for having given me the opportunity to experience chairing a committee for the first time.

[English]

The meeting is adjourned.