FOPO Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, November 15, 1999

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[English]

The Vice-Chair (Mr. John Duncan (Vancouver Island North, Ref.)): We'll open the meeting. I think we basically have everybody headed toward their chairs—those of us who still have a chair.

Pursuant to Standing Order 108(2), we're here for a study on the implications of the September 17, 1999, Supreme Court decision on R. v. Marshall on the management of fisheries in the Atlantic region.

We have a very distinguished witness today, Mr. Chris Harvey, Q.C., born in Nanaimo and raised in Prince Rupert, both in British Columbia. He was called to the bar in England in 1968, and practised there until 1975. He was called to the British Columbia bar in 1976, and was appointed Queen's Counsel in British Columbia in 1990. Mr. Harvey works for Russell & DuMoulin, and has done so since 1976. His practice has focused on aboriginal fisheries and environmental litigation.

In terms of his education, he received a B.A. from McGill University in 1965; his LL.M. from the University of London in 1970; and his Ph.D. from the University of London in 1975, at the Inns of Court School of Law, London. As I said, he was admitted to the bar in England 1968, and was admitted to the British Columbia bar 1976.

I won't go on any further, other than to say that the submission by Chris Harvey that the committee holds has a list of professional activities and representative experience that I think is well worthy of note. So we do have a distinguished witness before the committee.

We'd like to hear from you for ten or fifteen minutes and then open it up to questions. Does that work for you?

Mr. Chris Harvey (Individual Presentation): Yes, that works fine, Mr. Chairman. Thank you very much.

I'd like to start by saying somewhat apologetically that I'll only be addressing this committee in one of the two official languages. Unfortunately, my brief is not in both official languages. I hope that will be put right.

I should say that I was asked who it is I'm representing here. The answer to that is that I'm not representing anyone but myself. I worked in the fishing industry on the west coast as both a halibut fisherman and a salmon fisherman when I was going through university. I spent nine complete fishing seasons in all in the fishery. I've since worked as a lawyer doing aboriginal cases for the Government of British Columbia, for industry, and for the sports-fishing community, and I suppose I've accumulated some understanding of these issues. I acted as counsel in the Sparrow case, in the Gladstone case, and in certain other cases in the Supreme Court of Canada. I'm here as an interested citizen in order to give you the benefit of my views, and I hope you'll find them to be helpful.

I've been looking on, as I think every Canadian has been looking on, at the problems resulting from the Marshall decision. They really are very serious problems, and they can't be underestimated. In my view, government's response therefore has to be well focused and immediate, or there will be very serious further problems to come.

In my brief I point out a number of things, starting with the nature of the problem, which I don't think I need to repeat to this committee.

According to the band registration numbers, there are basically over 26,000 members of the Mi'kmaq and Maliseet bands, and there may be others as well who are entitled to the treaty protection the Supreme Court of Canada has found. If non-status members are included, it would surely take it above 40,000. This has to be juxtaposed with the size of the commercial fishery, the size of the resource in various sectors, and the number of licences.

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I understand from the DFO website that there are 6,300 lobster licences in Nova Scotia, New Brunswick, and P.E.I. My first point is that even if every lobster licence was given over to the holders of treaty rights, there would still be an infringement. You would still have members coming forward and saying their grandmother was a Mi'kmaq and those members haven't been granted a licence. There just are not enough licences to accommodate it.

I'm not by any means suggesting that this should be done, but I'm saying as my first point that the government has a very serious problem. It's not something that legislation in the normal sense can cure, because the treaty rights are constitutionally entrenched. There's no notwithstanding clause that can be exercised by Parliament, and we certainly can't contemplate a constitutional amendment, so there's nothing legislatively that could be done in the normal sense.

In my view, the present situation is that every Mi'kmaq person is entitled to fish without a licence. It's unregulated at present, and that's why it's a hopeless situation at present. The resource could be jeopardized if it were not for responsible action by the Mi'kmaq, which I don't think can be relied upon forever, as no group seems to be capable of that.

In this case, it's been declared that they have a right, and it hasn't been regulated in an effective way, so the government has a great challenge. It has a challenge to accommodate the right somehow. At the same time, it has to do that in a way that doesn't decimate the resource or the rights of all the existing licence holders.

As I say in my brief, the government's options are very limited, but there's one way—and one way only—that I can see to resolve the situation. That is by working through the tests that were set down in Sparrow, applied to treaty rights in Badger, and applied in a commercial situation in a case known as Gladstone, which was the first fishing case in which a commercial aboriginal right was found. The court gave some guidance there as to how this test works itself out in a commercial setting. In other words, it laid down the groundwork for a justification scheme.

The first test under the Sparrow rules is to determine whether or not there has been an infringement of an aboriginal or treaty right. As I indicated a moment ago, it's my view that the government must concede and admit that there will inevitably be an infringement of the treaty right of the Mi'kmaq. That's an inevitability, and the sooner the government faces that, the better, because what I see happening is inquiries as to how to satisfy that right. As I say, even if you expropriated all the rights of all the existing fishermen, you would still not satisfy the right.

On the infringement test, you have to admit that there's going to be an infringement. So what do you do? You move to the next text in the Sparrow analysis, and that is what's called the justification test. It's critical to appreciate that it's not every infringement of an aboriginal or treaty right that renders the government action invalid. It's an unjustifiable infringement that will render government action invalid. By government action in this case, we're talking about a licensing regime and a prohibition against fishing without a licence or a prohibition against fishing during a closed time. That's government action, and it's invalid unless the infringement on the treaty rights is justified infringement. That's what I focused on in my brief, and I urge the legislative arm of our Constitution to focus on that as well.

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To determine what exactly is meant by “justification”, I've gone back to the Gladstone case principally, and have drawn on the reasoning of the court there. That's because, like the lobster fishery, it was a case of a fully developed and a fully subscribed fishery on the west coast for herring spawn on kelp. It was a fishery in which there were only 28 commercial licences granted, and the aboriginal claimants had one licence.

The court had to determine whether a limitation to one licence was justified. Clearly, any limited number of licences is an infringement. As I say, however, the question was one of justification. The court looked to the underlying purpose of the protection of aboriginal and treaty rights to determine how to work its way through the justification test. What is clear from that is that the court said quite clearly that the purpose of protecting aboriginal treaty rights is to achieve a reconciliation of the aboriginal treaty rights, as aboriginal people were here before any others and have a priority. Those rights have to be reconciled with the broader rights of Canadians generally. That being the purpose of protecting rights in section 35, this informs and defines the right and the justification of it.

What this means is that what the court will do—and I'm suggesting that the government has to do this in regulations now—is focus on all the existing rights in the fishery that's being dealt with. As the court has said in Gladstone, dealing with the objectives of achieving reconciliation and of course maintaining an existing economy,

In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.

So the court has given a message. It doesn't come through all that clearly in Marshall, but if you look behind at the cases that preceded Marshall, the message to the legislative arm seems to be that a system has to be put in place that recognizes the aboriginal treaty right but deals with it in the context of all rights and comes up with a system or a process that will achieve reconciliation. In other words, it's very important that something be done that is acceptable to the existing economy and the existing fishermen, while recognizing the right at the same time.

In my paper, I deal with the rights of all Canadian licensed fishers, because they are dealt with in the Gladstone case as well. You can't begin the balancing process, the justification process, without having a look at the rights that are exercised by fishermen generally.

I have some quotes at pages 8 and 9. Beginning at the bottom of page 8, the court says that:

It should also be noted that the aboriginal rights recognized and affirmed by s.35(1) exist within a legal context in which, since the time of the Magna Carta, there has been a common law right to fish in tidal waters that can only be abrogated by the enactment of competent legislation.

Then the court goes on to say that the elevation of aboriginal rights is not intended to extinguish these common-law rights, so it's a balancing process that is set out.

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My paper then deals with the fishing rights of the Mi'kmaq as declared in the Marshall case. It's interesting to note that there's a distinction drawn between the content of the Mi'kmaq rights and the priority of protection that's afforded them. The court has held that the content of the Mi'kmaq rights is no greater than the content of the rights of all the other Canadian fishermen. In other words, it's a right to a shared resource.

The priority that was talked about is a priority of protection. They can't be overridden as easily as the rights of others. That's critically important, because I can see the focus on priority being directed to the idea that it's priority of access to the resource. You have to allow access to all the treaty rights holders before anyone else can have access to the resource. That's not the way these concepts were dealt with by the court. It was not the intention of the court.

My point here is that the right of the Mi'kmaq was always a right to participate in a shared resource under the same rules as everyone else. So if a system is developed that applies the same rules to the Mi'kmaq fishermen as to everyone else, it is not inconsistent with the Marshall judgment. But the added protection of the Mi'kmaq treaty right must be recognized and affirmed.

I deal with something else that's raised in the Marshall case, and that is that the treaty right cannot be dealt with under the minister's absolute discretion. It can't be left to be dealt with by policy that might change day after day.

The court has said that new regulations are required. Step number one has to be adopted. New regulations have to be adopted that give guidelines as to who is entitled to a fishing licence.

I say in my paper that this is not inconsistent with certain other trends. There is a trend, I think, which I see in environmental law, to put prescriptions into regulations. It is consistent with the report of the Standing Joint Committee on the Scrutiny of Regulations that there be guidelines in the regulations so that the administrator isn't left completely at sea, as the administrators in the DFO are at the moment.

The function of licensing regulations is to deal with the existing rights and to control and regulate them. At page 13 I deal with the issue of what reforms are necessary to re-establish effective regulation. I go back to the lobster fishery regulations that existed until 1974. In 1974 the first regulations for the lobster industry came into effect to limit entry to the fishery, and they limited it to those who were participating in the fishery in 1968 or had vessels under construction up to January 20, 1969. Until that time no one could have said there was any infringement of the treaty right of the Mi'kmaq or anybody's common-law rights because anyone could enter the fishery. There was no limitation on the number of licences.

That kind of regime has had to end in practically all of the fisheries on both coasts of Canada, because it simply leads to too many boats chasing too few fish. So a limited-entry licensing regime came in, and that's what we're now dealing with. But it came in with regulations that gave guidance as to who was entitled to a licence. It's those regulations that were repealed some years later, and it was then left to the absolute discretion of the minister, although the department continued the policy that was set out in the prior regulations.

Now that the court has said that the department has to go back to regulations setting out the right, it's my submission to you that what the regulatory arm should do is enact regulations similar to or based on the former regulations that set out who is entitled to the licences. In that way the same number of licences will continue in existence. Unlike the regulations that existed in the seventies and early eighties, these regulations have to contain a section that recognizes and affirms the treaty right.

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There has to be some provision, it seems to me, for transferring licences. I suggest buying back licences, so that you're not expropriating the existing fishermen, and transferring licences to the Mi'kmaq. The number of licences to be transferred has to be a number that's acceptable to the communities affected. That gets back to the reconciliation. It has to be a number that leads to reconciliation. It recognizes the right and accepts that the right has to be limited in a limited-entry fishery, but at the same time it allows a process that will accommodate the right.

I end my paper with just two examples of what not to do, which come from the west coast. This is at page 16. One example is in the spawn-on-kelp fishery. Following the Gladstone case, the court sent the question back to the lower courts to determine whether one licence to the Heiltsuk Band, which had been determined to have an aboriginal commercial right, was justified.

Instead of that issue being tried, as I think it should have been, the charges were stayed, and the minister issued seven new licences into the fishery. It created havoc in the fishery in the sense that a whole lot of new product came onto the market, market prices fell, and the existing fishermen, feeling expropriated, are threatening legal action. At the same time, the Heiltsuk, who now have nine licences, are also threatening legal action—contemplating legal action puts it more appropriately—because their right is still limited by nine licences. No one has addressed the justification aspect.

The other fishery is the salmon fishery in which the aboriginal communal licences regulations were used to set up a kind of separate commercial fishery for aboriginals only. That has led to widespread controversy, protests, and litigation and to a trial court finding that where you're dealing with aboriginal people who do not have a special treaty or aboriginal commercial right, you have to treat aboriginal Canadians equally with all other Canadians. You can't set up a special aboriginal-only commercial fishery. That case is wending its way through.

But it's another example, I say, of what not to do. If a separate regime is set up to deal with the treaty rights in the Marshall case, I would suggest that would be a serious mistake, because it does not properly address the justification issue.

That's my brief. I'd certainly welcome questions.

The Vice-Chair (Mr. John Duncan): Thank you very much for a comprehensive document and a good summary.

We'll start with the Reform Party. John, are you starting?

Mr. John Cummins (Delta—South Richmond, Ref.): Yes.

Thank you very much for that presentation, Chris. It was certainly enlightening.

The government's response to this Marshall decision has been to suggest that somehow they could negotiate their way out of this. The deputy minister was before this committee a couple of weeks ago, and he said:

The fundamental obligation from the judgement in Marshall is to accommodate the right for Aboriginal beneficiaries of the Treaty to engage in commercial fishing. We intend to meet that obligation.

That's a direct quote from his address. He then goes on to talk about short-term and long-term challenges the government faces.

Basically, the solution he sees is not defined, but, to quote from his address again, it has to do with encouraging “an environment which is conducive to cooperation and dialogue”.

Would you care to comment on the process the government has put in place to date?

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Mr. Chris Harvey: To begin with, there is a duty to consult meaningfully, so it's useful that it is being done, but it seems to me that the assumption there is that through cooperation and negotiation with one of the groups in this shared fishery, a result will come. I think that's naive. I think it will waste time that should not be wasted. The only way I can see this being resolved is for the government to govern, in the traditional sense: having consulted, it will have to govern in the sense of passing regulations.

Consultation is all right, but to arrive at the justified share of the resource for the Mi'kmaq people through negotiation only with the Mi'kmaqs would certainly be a mistake. If the negotiation involved others, as it should—the existing fishery—and resulted in an accommodation that way, that would solve the problem immediately. But that accommodation would have to be “worked”, to be backed up by regulations, because there will always be one member of the 26,000 Mi'kmaqs who will be prepared to challenge whatever regulations or licensing regime they put in place. There has to be something that will withstand that challenge.

Mr. John Cummins: Given that comment that somebody is going to challenge whatever agreement is reached, certainly the minister has experienced that already when he managed early on to get all but two of the bands to agree to a moratorium on fishing. He wasn't able to get unanimous consent.

Given this likelihood that somebody is always going to hold back from an agreement and given the reality that the Marshall decision in itself did not establish any ground rules as to how the treaty itself could be implemented—or how the court's interpretation of this treaty could be implemented—would it not have been prudent for the government to seek a stay of judgment and then ask for a rehearing to try to define some of these issues you've identified?

Mr. Chris Harvey: There are two parts to that. The first is the stay. I certainly do think the government should have applied for a stay. The situation that exists at the moment is that the fishery is completely unregulated, and my own personal view is that it's not governing responsibly to leave a fishery unregulated. I feel the court would have granted a stay; effectively, the pre-existing licensing regime still would have been effective and valid and could have been enforced.

The next part of your question was whether there should be a rehearing. It's hard to predict what the Supreme Court of Canada would have done. In the Marshall case, it only gave one sentence to the justification test. It would have helped to have them flesh that out a little, the way I've done in my brief, by going back and discussing the earlier cases and effectively telling the government how it can develop a system that's justified and that will be effective.

Mr. John Cummins: You said in your brief that DFO should not implement a separate licensing regime to accommodate the treaty right. Why do you say it's so important that DFO maintain a single licensing regime for the fishery?

Mr. Chris Harvey: There are two things that lead me to that. One is my own personal conviction that when you're dealing in the economic sphere in Canada it's very unsettling to have different rights for different people, based on race. I just personally cannot accept that.

More to the point, I think, is that when the court deals with the next challenge—and there will be challenges, whatever regime is put in place—the regime has to be able to stand up in court. I think the only way it will stand up to the justification test is if the court has a single licensing regime that deals with the rights of others and the rights of the treaty holders, so they can see the balance that government has reached and see how this is an attempt; it recognizes the existence of the treaty rights and it attempts to reconcile them with the existing rights, which also have to be recognized.

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That can only be done if you're looking at a single licensing regime for a commercial fishery. If you have two licensing regimes, the court will only be focusing on that one and it just won't work.

Mr. John Cummins: How would the court address that issue of balance in a single licensing regime?

Mr. Chris Harvey: Well, it's difficult in a single licensing regime. The question of balance, I think, has to be for the government to determine. It should consult with all existing users of the fishery and the treaty rights holders.

As for the number, if we're talking about percentages and whether it would be right to have 1% or 5% or 50% or 75% of the fishery eventually allocated to the treaty rights holders, whatever amount it is has to be acceptable in the fishery and beneficial to the economy. It has to be not disruptive of the existing economy. So to begin with, it's going to be a very small number, it seems to me.

First of all, a database will have to be determined as to how many of the existing fishermen are Mi'kmaq people, so personal questions will have to be asked of them. It would be, I gather, quite a small number at the moment. A process will have to be put into place that recognizes the existence of a specially protected right but does not disrupt the existing economy or the existing fishery. It'll be a small number, which may well increase over time. It'll have to be done in small increments, it seems to me, to achieve reconciliation.

Mr. John Cummins: That's the balance, then, that was recognized in Gladstone.

Mr. Chris Harvey: Yes.

The Vice-Chair (Mr. John Duncan): You have a couple of minutes, John.

Mr. John Cummins: I wonder if you could address again this issue of infringements and justified infringements. Could you just make it a little more clear for us as to how these principles would operate in the context of that east coast fishery?

Mr. Chris Harvey: The first question is whether there's an infringement of the treaty right. The cases indicate that if there's a licensing regime in place that does not allow the treaty rights holder to access the fishery by his preferred method, there's an infringement. That's why I say the government has to accept and the people should accept that there is inevitably and always will be an infringement.

The focus should shift. I don't see that it's shifted yet in the transcripts of this committee that I've looked at or in the statements of the government. It hasn't shifted to the justification test. When it does shift to the justification test, I can't do any more than to say that we could get back to the reconciliation.

You see, I don't know very much about it, but there's some sort of an inquiry that has been launched and a certain person has been given the responsibility to determine the extent of the right—or something like that. It seems to me, from what I saw on it, that the terms of reference are not very helpful. You can conduct an inquiry and you can determine the extent of the right, but you come back to exactly what the courts said: the right exists and continues until enough of the resource is taken and sold to result in a moderate livelihood—houses, food, clothing, reasonable accessories—but not the accumulation of wealth.

Well, for 26,000-odd potential treaty rights holders, that's millions and millions of dollars. It's no use figuring that out, because anybody looking at the numbers can tell you that there's going to be an infringement. So why waste time—as it seems to me—launching an inquiry to determine what would prevent an infringement?

The Vice-Chair (Mr. John Duncan): Monsieur Bernier.

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[Translation]

Mr. Yvan Bernier (Bonaventure—Îles-de-la-Madeleine—Pabok, BQ): Thank you, Mr. Chairman. I don't know whether our witness understands French, but he could use the earphones if he thinks he needs them.

Mr. Chris Harvey: Thank you very much.

Mr. Yvan Bernier: I'm not perfectly bilingual.

I know that we don't have much time, but I see that it's something you care about too.

My questions follow on those of Mr. Cummins. I find it somewhat strange to hear that we have to accept that there's always going to be an infringement of treaty rights. Perhaps I didn't understand the end of your last answer correctly, but I'd like to know how we will go about resolving this situation. I can't imagine that we will agree to there being an infringement. I believe I heard you speak of principles of reconciliation and I'd like you to explain your thoughts on this in greater detail.

I'd also like to throw you a line with my next question. In your brief, you say that there's a way to establish a regulatory framework for the coexistence of the Aboriginal fishery and the non-Aboriginal fishery. In the light of your experience with various legislative provisions, could you tell us what the fisheries minister might have in his toolbox that would bring Aboriginal people to fish in season, as non-Aboriginal fishers currently do?

You will say that I'm perhaps getting ahead of myself and that Aboriginal fishing is allowed. I assume to begin with that they have rights, but that we have to find a way of managing co- existence. I'd like to know how we can harmonize our regulations so as to respect treaty rights and at the same time adhere to our seasonally-based fishing practices.

Those are my two questions.

[English]

The Vice-Chair (Mr. John Duncan): Mr. Harvey.

Mr. Chris Harvey: Thank you.

I understand that, and I sympathize with the first question about how to accept an infringement. It's not a very pleasant thing to have to do, but it's inevitable, it seems to me, that we do. There are simply not enough fish in the sea to accommodate the treaty rights and to accommodate the rights of the others who have made investments in the fishery and that sort of thing.

It helps, I think, in this notion to realize that the treaty right always was a shared right, a right to participate in a shared resource, because that is stated in the Marshall case as well. I see subsequent cases developing and focusing more on that and saying now wait a minute, you're saying the right is infringed, but don't you appreciate that it always was the right to share in the resource?

As the courts have said in some other cases:

In this respect, Indian treaty rights are like all other rights recognized by our legal system. The exercise of rights by an individual or group is limited by the rights of others. Rights do not exist in a vacuum and the exercise of any right involves a balancing with the interests and values involved in the rights of others.

If one bears that in mind, it's not so difficult to accept an infringement. In a sense, it's the same thing that has to be said to anyone growing up in Nova Scotia, to children growing up, to boys and girls who want to enter the fishery and don't have a licence. They will say they have a long-standing common-law right to fish, and we have to say to them, sorry, that right has been limited because we can no longer give licences to everyone; we had to stop doing that in 1974.

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The second part of your question is what tools exist. It may be there are some good examples from the west coast too, because we have a salmon fishery there in which about 30% of the salmon caught are caught by aboriginal commercial fishermen. They fish at the same times as everyone else, they have the same types of licences as everyone else, but over the years the percentage has been built up from about 20% to about 30% by government programs that have assisted in allowing aboriginal members of the community to acquire licences.

They're a well integrated part of the normal commercial fishery. As I say, they have the same licences, the same close times and open times, the same gear restriction and everything else. That makes the fishery manageable, because the fishery officers then know the same rules apply to everyone, and they can enforce them. So that's the model I would encourage the government to adopt.

The Vice-Chair (Mr. John Duncan): Thank you.

Do we have questions? Rose-Marie.

Mrs. Rose-Marie Ur (Lambton—Kent—Middlesex, Lib.): I'm new to this committee. I'm just filling in, so my questions may be a little bit different. I find it most interesting.

How could you or would you be able to calculate “moderate livelihood”? How do you do that?

Mr. Chris Harvey: Well, my answer to that is similar to what I think the minister said—“I don't want to get involved in that question”—because you can't. You simply cannot. According to the norms that we appreciate and respect, we've got privacy rights that we respect.

First of all, as an administrator dealing with a licensed applicant, you have to start this exercise, and it's not a nice thing to do, by determining whether the certain person you're dealing with.... I mean, to ask him, are you a Mi'kmaq person, or were your mother or father Mi'kmaq, and your grandmother, and that sort of thing, are not very nice questions to ask. But we're forced to ask them, I think.

On the financial question, then start asking about their financial circumstances and what other income they have, and do a kind of means test. It's all a very unhappy exercise. But I think the government does not have to go down that road, because it's so obvious that you're never going to be able to satisfy fully the treaty rights of all the treaty rights holders. You're simply not going to be able to.

The moderate livelihood, to be more precise and answer your question, was said to be housing, clothing, food, and reasonable accessories, whatever that means, but it stops short at the accumulation of wealth. It seems to be a way of saying if you can spend the money you're still within your moderate livelihood, but if you can't spend it then there's an infringement of your right. I'm being a little facetious, but it's that sort of idea. So I think there's no use having inquiries on that score.

Mrs. Rose-Marie Ur: I just find it's really something very difficult to put on paper and try to achieve. I think if anyone can do that, they're very remarkable.

Mr. Chris Harvey: I agree.

Mrs. Rose-Marie Ur: They deserve a pat on the back.

The question of balance is up to the government—you made that statement several times in your presentation. That the percentage must be “all in good reasoning” was another statement you made. How do you really think that can be achieved? Are you saying 50% of the fishery people should be aboriginal and 50% non-aboriginal? How do you define “reasonable”? What is reasonable percentage here?

Mr. Chris Harvey: Well, you have to start by determining what percentage there is at the moment. I'd be surprised if it's zero among 6,300 licences, but if it is that should be corrected.

What I'm envisaging is a system, and I think this is the only system you can adopt, that gradually over time transfers some of the existing licences through a voluntary buyback scheme: the government acquires them and transfers them in one way or another to the Mi'kmaq people.

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I would be very surprised if anything like 50% would be acceptable in the fishing communities, because it would be such a revolutionary change. That's not something that's going to achieve reconciliation. The only thing, it seems to me, that achieves reconciliation is a slow, incremental change in adjustment to what you have now, an adjustment that recognizes the existence of a treaty right and has a system for accommodating that right more fully than it is accommodated at the moment.

The Vice-Chair (Mr. John Duncan): Bill Matthews has a question.

Mr. Bill Matthews (Burin—St. George's, Lib.): Thank you, Mr. Chairman.

Following the line of questioning and answering, you're talking of a voluntary buyback of licences. Then it would seem that we're talking about the same licence conditions. The minister would establish the number of traps and lobster size and you would fish the same season.

Mr. Chris Harvey: Yes, that's exactly what I'm suggesting, and I'm suggesting that as maybe the only workable and acceptable solution. It is workable in the sense that it can be policed more easily; it doesn't require a squadron of fisheries officers out there to police two separate fisheries. It is acceptable because it's very difficult, as you no doubt know, for a licensed fisherman to be tied to the dock, watching others out fishing in the same resource that his licences entitle him to fish for. It's socially and morally unacceptable and it's not something that fosters reconciliation.

So if there's a single regime of openings and closures and licences, that I think is really the only way we'll achieve reconciliation and will adequately protect the resource.

Mr. Bill Matthews: Well, that's the other point. I was going to talk about conservation and sustainability, that if you don't go about it the way you've just suggested then the other danger is the resource itself.

Mr. Chris Harvey: Yes.

Mr. Bill Matthews: I mean, lobster seasons are set. There's a reason why you only fish a certain time of the year, and the suggestion that you be allowed to fish year-round would mean you just completely deplete the stocks. I think the same season, the same conditions—there's only one way to go. I agree, and I've said it before; that's my opinion on this as well.

Tied into the other things you've said, if it's going to be a voluntary buyback or buyout of licences, it remains to be seen how many are willing to sell out and then I guess whether that meets a reasonable entry by the natives, what they would consider a reasonable number entering the fishery. You know, you can't cross that bridge until you first know how many commercial fishermen now are willing to come out of the industry, as I see it. That's my sense of it. It was not a question; it was just a comment.

Mr. Chris Harvey: I would agree with that.

The Vice-Chair (Mr. John Duncan): Okay, we'll go back to—

Mr. John Cummins: I'd like to just do a quick follow-up to that point. Would you mind?

The Vice-Chair (Mr. John Duncan): Go ahead.

Mr. John Cummins: I think my colleague across the way raises an interesting point, and that is if you have a buyback scheme.... And you do mention it in your brief; you say the program should be designed on one hand to compensate existing licence holders who may be required to give up their licence entitlement and on the other to provide reasonable allocation of licences to the Mi'kmaq. But the problem with the buyback scheme here is we assume, and I think the government assumes, that nobody else wants that particular licence, that if somebody's willing to retire a licence the only buyer out there is the government.

The reality of it is there are others in the community who want to buy as well. It may be a father wanting to transfer a licence to a son, an uncle to a nephew. Given the notion of reconciliation, if I'm the guy who wants to buy the licence and I'm competing against the government, I may not be a happy camper.

I think we've long talked about this so-called industrial solution on the west coast, but there are problems inherent in that solution as well.

Mr. Chris Harvey: Yes, I'd agree there are, but it does avoid to a large extent a feeling of expropriation and the fact of expropriation, which happens in other solutions. If new licences are simply put into the fishery and given to the Mi'kmaqs then there's an effective expropriation of part of the resource. So I agree with what you say.

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And the point that you make about there being others wanting to enter the fishery is something that has to be taken into account, because those others, as I said, have rights—common-law rights—in the fishery too. The system has to recognize the existence of those rights and recognize the existence of the treaty rights, recognizing though that the treaty rights have a priority of protection. So that's where you have to give greater weight, it seems to me, to those wishing to enter on the side of the treaty rights holders.

The Vice-Chair (Mr. John Duncan): Mr. Gilmour.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman.

Again, we're delighted to have someone of your experience in front of us, someone who's been part of the building blocks up to the Marshall decision. You've been there. You've represented various interests.

Now, the Marshall decision represented eels, yet we're already talking about lobster and snow crab. The question I often get asked is how far afield does this go? Does this go to non-traditional rights that the natives may have had—for example, deep-sea fishing? Or does it even go to Sable Island and the gas? The talks were stalled there a couple of weeks ago. We've got people logging.

How far, in your experience, do you see this going? Is it strictly a treaty right on the Atlantic Coast with those treaties, or does this have the potential of going farther?

Mr. Chris Harvey: Well, it will be up to the court to interpret its breadth, I guess, in subsequent decisions. But the Marshall case leaves it, potentially, very broad. It's hunting, fishing, and gathering. It's not confined the way aboriginal rights are to what is integral to the aboriginal community and their culture pre-contact. It doesn't seem to be.

Maybe the courts will interpret it as having that restriction, but it wasn't given that in the Marshall case, because it is a trade right that was found to exist and was granted by an agreement in 1760. The court said it is basically the same right that any other citizen had before regulations were put in place to restrict the right. If there were no laws or regulations, every citizen in the country could log, fish, hunt, and gather, and sell the products in a completely unregulated fashion. So the right is potentially very broad. As I say, it will have to be up to the courts to confine it. It's hard to say to what extent they will.

As I say, I think the infringement part of the test has to be simply abandoned, and all the focus put on the justification side. So when you come to regulating logging.... Well, first of all, there has to be a determination, somehow—and this is a determination that only a court of law can make—as to how far the right extends. But let's say a court of law found it to extend to logging. Then there would have to be a recognition of that in the logging regulations, which would be provincial, and then a consultation process and some regulations that set out the entitlement to logging leases and tenures.

The British Columbia forest practices code has come under scrutiny on that very question. This is, fortunately, a code that is legislation, and it does give direction to the discretion of the administrators. It passed all the tests except for the consultation test in one case, which I've mentioned in the brief.

Mr. Bill Gilmour: May I have one more?

The Vice-Chair (Mr. John Duncan): Very quickly.

Mr. Bill Gilmour: I'm encouraged by your suggestion of the regulatory compromise recognizing existing fishermen with the treaty rights of natives that may come into it. However—and I'm not trying to get you to put your foot in your mouth here—it's my own bias that I'm discouraged by the mood of the courts and the mood of Parliament, particularly through the actions of DFO. What is your feeling, particularly of the courts? Is it a level playing field, or is there a skew one way or the other?

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Mr. Chris Harvey: I think the problem is the courts have dealt in legal theory and they've got a very sophisticated structure of infringement, justification, and all the different steps. To the lobster fisherman, this is a different world. And to the courts, I think the lobster fishery is a different world. The two have to be brought together somehow, and that's what the regulations have to do.

So that's my comment about how the courts have dealt with it. They haven't. To be fair to them, their business is dealing with legal theories and the results, based on legal logic. The social consequences are not for the court to deal with. That's for the government to deal with, and that's why we're here today dealing with the social consequences.

As I said, my thesis is that unfortunately government is not able to deal with them in the usual way, and therefore has only one little narrow avenue it can follow in order to resolve this crisis.

The Vice-Chair (Mr. John Duncan): Mr. Laliberte, from the NDP.

Mr. Rick Laliberte (Churchill River, NDP): Thank you, Mr. Chair. I don't know how much time I have.

The Vice-Chair (Mr. John Duncan): You have five minutes, then we'll go a second round after that.

Mr. Rick Laliberte: Our schedule said 4:30, and I was just looking at the clock.

The Vice-Chair (Mr. John Duncan): Well, you have five minutes, and we'll finish off.

Mr. Rick Laliberte: In your presentation you talked about tidal waters and high seas. I guess along the negotiation path DFO had spoken to corporate fish companies on the east coast, who I guess pretty directly told DFO that if the aboriginal fishers go beyond the three-mile limit, they would sue DFO. Is that a legal right or legal definition? Since you referred to it in your document here, I just wanted to see if you could shed a light on it.

Mr. Chris Harvey: There's no easy answer to that. At the moment there's really no answer to that. The courts haven't ruled on it, so it will have to be part of the exercise of government to determine questions such as that. But I would suggest that question doesn't arise if the existing licensing structure is adopted the way I'm recommending, and provision be made for working some Mi'kmaq commercial fishermen into the existing structure. Then difficult questions like that don't arise. There will have to be some difficult decisions made as to corporate licences and things like that. I've only looked at the lobster licensing regime, and I've found that's not so difficult to deal with. But I'm unfamiliar with other licensing regimes on the east coast, I'm afraid.

Mr. Rick Laliberte: In your opening statement you gave us statistics of 26,000 registered members, but dealing with the 40,000—those are non-status, I would assume—is that something that could be applied under the decision, for non-status Indians to have rights?

Mr. Chris Harvey: I think that's certainly a possibility. The courts haven't ruled on it, and I gather that the aboriginal association is attempting to have the Supreme Court of Canada rule upon it. They may succeed. I would be guessing; it could go either way. The number I proposed of 40,000 is just a guess on my part. There may be twice as many non-status as there are status. I just have no idea. But it's going to be a much larger number, for sure.

Mr. Rick Laliberte: In the decision that was made under Marshall, you specifically referred to it as a treaty right, and then in your opening summary you deal with subsection 35(1), which is a definition of aboriginal right. Can you expound on both?

Mr. Chris Harvey: Subsection 35(1) states that aboriginal and treaty rights are hereby recognized and affirmed. So it does deal with both treaty rights and aboriginal rights in the same section. That's why, to make the composition a little shorter, I often refer to section 35 rights; that includes both aboriginal and treaty rights.

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The point is, with aboriginal rights, that doesn't mean every right exercised by an aboriginal person, because most of the rights exercised by aboriginal Canadians are the general rights of any Canadian citizen. Only a very small number of the rights they exercise are specially protected by section 35. The treaty right is definitely a section 35 right.

Mr. Rick Laliberte: So in terms of creating regulations, you're affirming that the federal government has the jurisdiction of the fisheries and oceans department in that area. Where do the treaty rights fall under the jurisdiction issue?

Mr. Chris Harvey: The treaty rights can be regulated. There's no doubt about that. The courts have said that licences are essential and it's essential to have one licensing authority, being the government, if the resource is to be protected. Just because it's a treaty right, it can't be infringed upon unjustifiably by government regulations, but it can be infringed upon justifiably by government regulations. So I'm suggesting there has to be a regulatory system that will inevitably infringe, but the infringements are justifiable. And then they'll be upheld and be validly enforceable.

Mr. Rick Laliberte: On that point, you mentioned the one sentence. It was footnoted in your presentation on page 15. That is the complete sentence you said referred to justification, and that's the only thing.

Mr. Chris Harvey: Yes. All the court said was that if you have a discretionary licensing regime, effectively it can't be justified because there's no guidance at all to the administrators and there's no recognition of the existence of a treaty right.

Mr. Rick Laliberte: So in essence there were some efforts being made. Inevitably, the first word I heard was from Donald Marshall Jr. himself, that we have to control ourselves in the fishing industry before going out. He was telling his people to stay back and get control.

Is that an authority or a jurisdiction that could take place with the treaty or the aboriginal communities in this country as well, that they could take control of their rights and their obligations?

Mr. Chris Harvey: That's a very good question, because that's often put forward as something that's included in the aboriginal right—to make their own rules and ignore the rules passed by the Government of Canada. But that's not part of anything the courts have said. The courts have said quite to the contrary that the government has the sole power to govern the fishery, but it has to do it in a justifiable manner.

The Vice-Chair (Mr. John Duncan): With that, we've nicely filled out our hour. We thank you very much for attending. I understand you're travelling. Are you in New York tomorrow?

Mr. Chris Harvey: Yes, that's right.

It's been a great pleasure to come here. And thank you very much.

The Vice-Chair (Mr. John Duncan): Thanks, everyone.

We're adjourned.