FOPO Committee Report
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INTRODUCTION
On September 17, 1999, the Supreme Court of Canada handed down its judgement on what has become known as the "Marshall decision." It is probably fair to say that the Marshall decision sent a "shockwave" through Atlantic Canada's fishing industry.
Donald Marshall Jr., a Mi'kmaq indian had been charged with fishing eels out of season, fishing without a licence, and fishing with an illegal net, contrary to federal regulations. Marshall had not disputed these facts; rather he asserted that, under the "peace and friendship" treaties of 1760-61, he possessed a treaty right to catch fish for sale and that he was therefore not subject to the fisheries regulations.
Marshall had originally been convicted at trial in Provincial Court on all three counts. He appealed his conviction to the Nova Scotia Court of Appeal, which upheld his conviction in the lower court. Marshall then appealed to the Supreme Court of Canada.
The Supreme Court, in a 5 to 2 decision, allowed Marshall's appeal of the Nova Scotia Court of Appeal decision as "...nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship...".
In essence, the Supreme Court affirmed that the 1760 Treaty provided Mi'kmaq people a right to provide for their own sustenance by taking the products of their hunting, fishing and other gathering activities and trading for what in 1760 were called "necessaries." This, the Court said, should be construed in a modern context as equivalent to a "moderate livelihood" but not the open-ended accumulation of wealth. The Court also found the treaty right could be contained by regulation within its proper limits.
The Supreme Court's decision was widely depicted as giving Mi'kmaq, Maliseet and Passamaquoddy First Nations the right to fish year-round without fishing licences, even though it should have been clear from the outset that this was not so. The Supreme Court declared in paragraph 61 of the September 17, 1999 decision:
Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi'kmaq families at present day standards can be established by regulation and enforced without violating the treaty right. Such regulations would accommodate the treaty right and would not constitute an infringement that would have to be justified under the Badger standard.
Nevertheless, the precise scope and implications of the September 17, 1999 decision, were not clear to many parties, including representatives of First Nations and commercial fisheries organizations, the media and outside observers. Nor were clear directives issued to Department of Fisheries and Oceans (DFO) enforcement officers.
Immediately following the Marshall decision, First Nations fishermen, over a large part of Atlantic Canada, put to sea to begin fishing for lobster, one of the most lucrative fishery in the Atlantic region. Non-aboriginal fishermen, fearing for the conservation of lobster stocks and for their own livelihoods reacted with anger towards the aboriginal fishermen who were fishing out of season. Maintaining that conservation of lobster stocks was at stake, they demanded that DFO immediately put a halt to aboriginal fishing.
The DFO's initial response was slow and uncertain. It appeared to have been caught off guard by the Supreme Court's ruling and, for several days after, chaos and confusion ruled. The rhetoric became more heated and escalated in a number of instances to the destruction of property, violence and personal injury. During this period, the Department and the federal government were widely criticized for not having had a contingency plan in place that might have anticipated the Supreme Court's ruling.
On October 18, 1999, the West Nova Fishermen's Coalition applied for a rehearing of Marshall's appeal and, if granted, for a stay of the judgement pending a rehearing. In addition, the Coalition sought a further trial, limited to the issue of whether the application of the fisheries regulations to the exercise of a Mi'kmaq treaty right could be justified on conservation or other grounds.
On November 17, 1999, in a unanimous decision, the Supreme Court denied the Coalition's motion for a rehearing. In doing so, it took the unusual step of providing a written "clarification" of its September 17 decision. In the November 17 ruling, now referred to by some as "Marshall 2," the Supreme Court stated that the scope of its September 17 had in fact been limited and that many of the perceived ambiguities had in fact been addressed in the September 17, 1999 decision, had people taken the trouble to read it carefully. This view was not held by a majority of witnesses before the Committtee. The Court took the trouble to explicitly address some of the most important questions regarding the scope of the September 17 decision with the November 17 decision.
It is worth reiterating some of the main points of the Supreme Court's November 17 decision here as these are central to the Committee's deliberations.
First and foremost, the Court claims it did not hold that the Mi'kmaq treaty right could not be regulated nor that the Mi'kmaq were guaranteed an open season in the fisheries (paragraph 2). The Court emphasized that the treaty right had always been subject to regulation and that the government's power to regulate the treaty right had been repeatedly affirmed in the September 17, 1999 majority judgement (paragraph 24).
Secondly, the Court stated that the majority judgement of September 17, 1999, had not put in doubt the validity of the Fisheries Act or any of its provisions. However, it was necessary to establish specific criteria for the exercise by the Minister of his or her discretion to grant or refuse licences in a manner that recognizes and accommodates the existence of an aboriginal or treaty right (paragraph 33). Moreover, the limited treaty right could be accommodated by amending the Aboriginal Communal Fishing Licences Regulations (paragraph 34).
The Court confirmed that the treaty right is a communal right to be exercised by the authority of the local community and that it is limited to the area traditionally used by the local community (paragraph 17).
The Court also pointed out that the September 17, 1999 ruling had not dealt with the issue of treaty rights to logging, minerals and oil or gas deposits. "The September 17, 1999 majority judgement did not rule that the appellant had established a treaty right to gather" anything and everything physically capable of being gathered. The issues were much narrower and the ruling was much narrower" (paragraph 20). However, the Court did not exclude the possibility that such rights could be established in the future. "It is of course open to native communities to assert broader treaty rights in that regard..." (paragraph 20).
The Court stressed the priority of conservation and the responsibility of the Minister in this regard. "The paramount regulatory objective is the conservation of the resource. This responsibility is placed squarely on the Minister and not on the aboriginal or non-aboriginal users of the resource" (paragraph 40).
The Court also confirmed the Minister's authority to regulate the fishery for compelling and substantial objectives other than conservation. "The Minister's authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups" (paragraph 41).
Moreover, the Court pointed out that the Minister still has at his disposal the full range of resource management tools and techniques, provided their use to limit the exercise of a treaty right can be justified (paragraph 44). The Court, however, stated that aboriginal people are entitled to be consulted about limitations on the exercise of treaty and aboriginal rights.
The Court affirmed that the decision did not confer any right to a separate commercial fishery. "The Mi'kmaq treaty right to participate in the largely unregulated commercial fishery of 1760 has evolved into a treaty right to participate in the largely regulated commercial fishery of the 1990s" (paragraph 38).
Finally, the Court stated that the treaty right is not a priority right in the sense that it must be fully satisfied before other users have access to the resource. "Equally, the Mi'kmaq treaty right to hunt and trade in game is not now, any more than it was in 1760, a commercial hunt that must be satisfied before non-natives have access to the same resources for recreational or commercial purposes. The emphasis in 1999, as it was in 1760, is on assuring the Mi'kmaq equitable access to identified resources for the purpose of earning a moderate living" (paragraph 38).
Although the "clarification" helped to alleviate the anxiety of non-aboriginal fishermen, some First Nations spokesmen, however, saw the November 17, 1999 clarification as a retreat from the Court's earlier ruling in the face of political pressure, describing it as a "slap in the face."
ACCOMMODATION OF TREATY RIGHTS
The fundamental issue before the Committee was how this treaty right can best be accommodated within the existing commercial fishery. No one disputed that the Marshall ruling had confirmed that the Mi'kmaq, Maliseet and Passamaquoddy First Nations had a treaty right to participate in the fishery. Indeed, many welcomed the participation of First Nations. That is not to say however that there is not a significant degree of apprehension over how treaty rights will be accommodated and what impact this will have on fisheries.
Following the collapse of the northern cod and other groundfish stocks in the late 1980s and early 1990s, the Department of Fisheries and Oceans has undertaken a program of reducing capacity in the fisheries. This has involved a successive series of licence buybacks and the creation of a designated "core" of professional fishermen. These changes have created significant hardship both for individuals and for fishing communities across Atlantic Canada. Many groundfish stocks are now slowly rebuilding but cannot yet sustain any substantial increase in fishing effort. All of the other major commercial fisheries in Atlantic Canada are currently fully subscribed.
This is certainly the case in the lobster fishery. In 1995, the Fisheries Resource Conservation Council (FRCC) reported to the Minister of Fisheries and Oceans1 that lobster fishermen were "taking too much and leaving too little." The FRCC concluded that exploitation rates were too high, egg production was too low, and that the risk of recruitment failure was unacceptably high [Italics added]. This concern was later reiterated by the Auditor General in Chapter 4 of the 1999 Report of the Auditor General of Canada - Managing Atlantic Shellfish in a Sustainable Manner. This means that there is no room to accommodate the treaty rights of First Nations unless existing commercial fishermen exit the industry.
Non-aboriginal commercial fishermen accept the participation of aboriginal fishermen in the commercial fishery provided that two fundamental conditions are met: there should be no increase in fishing effort as a result of new First Nations participation in the fishery; and, that all participants in the fishery, aboriginal and non-aboriginal alike should fish under the same rules and regulations.
These conditions are seen as essential to the orderly management of the fishery and to ensure that conservation goals are met. Most First Nations witnesses appeared to be receptive to this approach provided that they were partners in negotiating those rules:
I said that we would negotiate the rules, that we'd agree to the rules, one set of rules, if there's good faith negotiations. If that includes seasons, possibly, but again I want to stress at this point that we will agree to one set of rules, not the status quo right now but we'll agree to one set of rules if there is good faith negotiations on the part of the Government of Canada.
Bernd Christmas
Nova Scotia Assembly of Micmac Chiefs
On the other hand, some, notably the Esgenoopetitj First Nation (Burnt Church), made it clear that they did not accept the federal government's authority to regulate fishing. Burnt Church representatives emphasized, however, that they did not support an unregulated fishery rather that they would not accept management plans and "communal licences" imposed by DFO.
There was a broad consensus that the most practical solution to accommodating treaty rights affirmed by Marshall would be to integrate aboriginal fishermen into the existing commercial fishery and that this should be accomplished through a government-funded, voluntary buyback of existing commercial licences for transfer to aboriginal communities.
As events have unfolded since the Marshall ruling came down, most of the focus has been on the lobster fishery. To a large extent this is a traditional inshore fishery conducted from small boats and it is the backbone of many coastal communities in Atlantic Canada. There was a broad consensus that the obligation created by Marshall should not be borne just by the lobster fishery or even the inshore fishery but that all sectors of the fishery should share in the transfer of access to fisheries resources to aboriginal communities. Furthermore, it is the responsibility of Canadian society as a whole to meet the cost of this transfer.
What this means in terms of access to fisheries resources is yet to be determined. Bernd Christmas of the Nova Scotia Assembly of Micmac Chiefs was forthright when he explained that access would include all species and all sectors of the industry:
We will enter the offshore lobster fishery, we will enter the offshore scallop fishery and we'll enter the offshore snowcrab fishery. If someone is going to try to use an argument that three miles is the limit and that it's a treaty right all we suggest is I'm not their legal adviser, they have their own legal advisers and they had better find out how far Canada's limit is right now. We understand it's 200 miles and as far as we're concerned ours go out as far as that.
John Paul, Treaty Mediator, of the Atlantic Policy Congress of First Nations Chiefs, was still more explicit about the level of expectations:
We do have a long-term vision of assuming control over the Atlantic fishery, but some people today doubt this is possible. A goal to acquire access control of at least 50% of the Atlantic fishery is seen as idealistic. But is it really? Our access is based on a treaty right, not a privilege.
It should be acknowledged that prior to the Marshall ruling, DFO had already transferred a significant number of commercial licences to First Nations communities. This fact has not received a great deal of attention in the discussion since Marshall:
In fact Mr. Chairman, not much focus has been placed upon the fact that through DFO's Aboriginal Fisheries Strategy, nine communal lobster licences, eleven communal rock crab licences, as well as communal licences for groundfish, mackeral, scallops, herring, oysters, eels and smelts and an exploratory permit for shark, were accommodated into the fishery here in PEI, prior to the Marshall decision.
The Hon. Kevin J. MacAdam
Minister, PEI Department of Fisheries and Tourism
The Committee believes that commercial licences already transferred under DFO's Aboriginal Fisheries Strategy should be credited toward the accommodation of treaty rights under Marshall.
It was pointed out a number of times that a tax on capital gains discourages fishermen from exiting the fishery. A number of witnesses proposed that the federal government should offer a limited lifetime capital gains exemption to fishermen who are willing to give up their licences.
It was widely recognized that such a transfer would take place over a number of years. The government should therefore acquire licences as they become available rather than attempting to short-circuit the process over a too brief timeframe. This would tend to drive up the price thereby increasing the cost to government and raising the barrier for other non-aboriginal entrants to the fishery:
There is concern that a government-funded licence acquisition scheme will naturally drive up value of existing licences, making it financially even more difficult than it presently is for younger people who aspire to careers in the fishery to acquire through purchase the necessary licences. The purchase of existing licences for transfer to aboriginal communities must be gradual, and must be evenly distributed both geographically and among species, so as to avoid, or at worst, minimize this effect.
A. William Moreira, Q.C., Lawyer, Halifax
On the other hand, driving up the price would benefit those exiting the fishery:
...a person retires from the fishery, no matter what's going on at the present time, he should be able to get whatever the market value is. If the creation of a native fishery is making the market grow so that price is going higher, then no I don't see no problem in that.
Craig Avery
Western Gulf Fishermen's Association, P.E.I.
Even though fishing has been a traditional activity of Mi'kmaq and Maliseet nations, many aboriginal bands have not participated to any great extent in the fishery in recent decades and, as a result, no longer possess the skills required to fish. This difficulty has become more acute in recent years because of the increasing professionalization of fishermen and the introduction of new technologies into the fisheries. Consequently, many prospective aboriginal fishermen will require training to fish effectively and safely. Particularly in the case of the midshore and possibly the offshore fisheries this will also require the transfer of technical knowledge. One of the solutions offered to this predicament was that fishermen displaced as a result of buyouts could be engaged to train aboriginal fishermen.
It is not only licensed fishermen who will be displaced from the fishery as a result of Marshall but crewmembers and potentially plantworkers, if First Nations communities choose to develop their own processing facilities. These groups are not in a position to benefit from any licence buyback program. The Committee feels that the federal government should give serious consideration to finding means to alleviate any impacts of Marshall on factory workers and crews.
The Committee recommends that:
Any transfer of access to fisheries resources to First Nations communities must be accomplished through a federal government-funded voluntary buyback of a portion of existing commercial licences as they become available.
The emphasis should be on the acquisition of "core" multispecies licence packages for the local area for transfer to aboriginal communities rather than the transfer of lobster licences or any other particular species.
In order to encourage the sale of licences, the federal government should offer a limited lifetime capital gains exemption to fishermen.
Licences must be transferred to First Nations communities as communal licences.
Where local agreements can be reached to make room for new aboriginal entrants by fishermen each voluntarily giving up a portion of their quota of lobster traps, in a manner that does not increase the overall fishing effort, the federal government should support those agreements.
All stakeholders regard conservation of the resource as the paramount issue.
Aboriginal witnesses described their affiliation with the fishery:
To us the fishery has always been sacred. It has always been respected and conserved by us. We were always willing to share it with the newcomers and we remain willing to share it. However true conservation must play a central role in its management. The Fisheries Act, its regulations and the policies of DFO do not meet this criteria and these laws and policies must change.
George Ginnish
Chief, Eel Ground First Nation, Miramichi
Non-aboriginal witnesses were equally passionate about conservation. Many had lived through the collapse of the cod stocks and had no desire to see a similar fate visited on other stocks. Fishermen have made considerable sacrifices in recent years to ensure that stocks remain healthy. Their principle concern was that there be no increased fishing pressure that would jeopardize the viability of stocks.
It was acknowledged that without a commitment to conservation, everyone stands to lose:
We think it is imperative that all user groups proceed with prudence and caution so as not to obliterate any resource. After all, would the user groups want half of 100%, or 100% of nothing? It is time that all sides stopped making exaggerated claims and raising the anti. It is time for opposing interests to stop thinking of themselves and start thinking of the resource. It is time for all concerned to sit down around the table and make some common sense agreements on the sharing of the resources.
Bruce Whipple
Northumberland Salmon Protection Association Miramichi
The inadequacy of DFO's commitment to conservation was raised repeatedly:
Talking about enforcements, I've personally been fishing myself for six years. I've only been boarded once by a fisheries officer. We've never had our catch measured or checked for bearing females or undersized lobsters.
Chris Wall, Malpeque Harbour Authority, PEI
They cover from Tabusintac to the upper end of Miramichi Bay and they have one patrol boat. I fish May and June and this year they checked my catch one time in two months, and supposedly they were working hard at it to keep an eye on the fishery. Now, I would like to see them around more. They just don't have the resources to do it. They have too many area managers and directors and nobody in the field to do the work.
Kevin Cassidy, Fisherman, Miramichi
On your last question of how big the illegal fishery is, I think the answer to that is nobody knows. I'm sure that DFO doesn't know because it has cut back its field staff by about two-thirds over the past 15 years or so. We don't know because poachers don't normally operate when people see them. I would suggest to you that poaching in this province is probably a hell of a lot less now than it was 15 or 20 years ago.
Fred Wheaton
New Brunswick Wildlife Federation, Moncton
Not only does DFO not have enough enforcement officers but those officers are often underequipped. They do not have enough boats and the boats they do have are often too small, either to venture safely into open waters or, for example, to haul lobster traps to check them. In fact, lack of action on the part of DFO following the Marshall decision exacerbated tensions that were already high because of a perceived lack of control over food fishery in certain areas.
We cannot emphasize strongly enough the importance of conservation and the role that effective enforcement plays. Conservation is at the core of the Department of Fisheries and Oceans' mandate. The Supreme Court, in its November 17, 1999 ruling underscored that the paramount regulatory objective is conservation of the resource and that responsibility for conservation is that of the Minister and not that of the aboriginal or non-aboriginal users of the resource. Furthermore, this Committee has made repeated appeals for more effective enforcement.2
The Committee recommends that:
Fisheries must be managed with the long-term objective of conservation of fisheries resources.
Effective enforcement is crucial to conservation. DFO must rigorously enforce fisheries regulations with impartiality.
DFO must be provided with the resources to fulfil its obligation to conserve the resource. This means that DFO must have sufficient numbers of enforcement officers and that those officers must be provided with the equipment to do their job safely and effectively.
Aboriginal enforcement officers should be trained as full fledged officers with the capacity to supervise any and all fisheries or other enforcement activities. There should be one standard for all personnel to enforce the rules.
There should be zero tolerance for fisheries violations. Sanctions for illegal fishing or the purchase of illegally caught fish should include minimum penalties to provide guidance to the courts and to achieve more consistent treatment of offenders.
DFO's current management system will need to be overhauled to accommodate treaty rights. As a result of Marshall, the Department will be required to consult with First Nations before developing and implementing regulations. Witnesses suggested that a change in DFO practice that would result in more meaningful consultations with non-aboriginal fishing interests would be equally beneficial.
It is evident that most people, aboriginal and non-aboriginal alike, are willing and able to find solutions, provided they have the means. We have seen this principle at work in Saint Mary's Bay in Lobster Fishing Area 34.
One of the interesting things about reaching this agreement was that it was made between elected officials directly involved with the people who are the resource users. In other words, it was made without the media there. It was made without lawyers there. With all due respect, it was made without politicians there. It was made by people who live in these rural coastal communities. They are the ones who will have to live with the solutions we're coming up with now. I think that's the approach we're taking.
Arthur Bull, Coordinator, Bay of Fundy Inshore Fishermen's Association, Halifax
Agreements reached at the local level will generally work better simply because people have more invested in them. Compliance will be higher and enforcement less onerous than if arrangements are imposed externally by DFO or Ottawa. However, many organizations do not have the financial or technical resources to solve problems on their own. At the same time, DFO needs to communicate better with its regional and local staff so that they in turn can appraise local fishermen and communities of developments.
In some cases, existing co-management agreements such as those in the snow crab fishery can serve as models for integrating First Nations fishermen into the commercial fishery. Some watershed committees already involve the participation of First Nations in the management of Atlantic salmon.
In many cases the management structures of certain species have reached a mature stage of development that ensures conservation of the resource and the orderly management of the fishery. In such cases the most practical approach may well be to integrate First Nations fishermen under the existing management structure with little or no modifications.
The preferred option will be that all participants in commercial fisheries will fish by the same rules and regulations. It is possible that there may be some instances where this will not be the case. The aboriginal food fishery for Atlantic salmon is a possible example of this. Nevertheless, it will be crucial to ensure in the future that all participants fish under a single, integrated management structure.
The Committee recommends that:
Commercial fisheries for aboriginals and non-aboriginals must be conducted under one set of rules and regulations for all participants in a particular fishery.
DFO must enforce one set of rules for everyone and that it must have the resources and personnel to do the job.
A co-operative, co-management and community-based approach to management of fisheries should be promoted.
Snowcrab fishery co-management agreements and salmon watershed committee structures should be examined as possible models for the integration of aboriginal fishermen into other fisheries.
The aboriginal "food fishery" is a particularly problematic and contentious subject. Section 35(1) of the Constitution Act, 1982 recognizes and affirms the ancestral and treaty rights of the aboriginal peoples of Canada. It does not, however, specify the nature and content of the protected rights. In 1990, the Sparrow decision confirmed an inherent aboriginal right to fish for food, social and ceremonial purposes and that in order of priority this right takes second place only to conservation.
It is widely alleged and even acknowledged by some aboriginal leaders that, to a large extent, this fishery has turned into a de facto commercial fishery.
...something had to be done on this food fishery because it's raping the industry. For that I got beat up. I got $12,000 worth of gear stolen on this non-status issue. It was and still is the biggest and the largest illegal black market lobster fishery of anywhere in Canada, in southwest Nova Scotia. The DFO estimate of illegal removal alone in 1988 was 500 tonnes.
Wayne Spinney
Lobster Fishing Area 34 Advisory Committee
...whoever the aboriginal people were who went to St. Mary's Bay to food fish and that food fishery was transferred into some sort of a commercial black market, but our regime is well managed. We have protocols. If there is such a person who is doing that, then they would be charged and thrown away... Number two, whoever the black marketeers were, I don't think, but the persons who are buying on the black market are not the aboriginal people. I'm sure it's another one.
Roger Hunka, Aboriginal Rights Facilitator, Native Council of Nova Scotia
There is an absence of reliable catch data from the food fishery and estimates of landings are therefore inexact. However, even some of the lower estimates indicate catches that far exceed any plausible level of consumption for food purposes.
Aboriginal leaders point out that, to some extent, commercial sales of food fish have occurred simply as a result of people exercising what they believed to be their treaty right to trade:
I guess that was forced by the simple fact that the federal government and the Government of Canada didn't recognize the treaty rights, and they were exercising their treaty rights in a sense. Now it has to be rights. The Supreme Court came down to a decision and said they do have a treaty right to do that. They do have a right to food, ceremonial purposes and they can sell it.
Chief Charlie Sark, Lennox Island First Nation
Other factors include incentives created by the very high levels of unemployment in most aboriginal communities and absence of any alternative economic opportunities. Commercial sales are also rationalized as a necessary means to pay for the cost of fishing:
They weren't supposed to sell them, but the argument they came across the table with was, well how am I supposed to pay for this outboard motor and the skip or this boat or fuel?
Wayne Spinney
Lobster Fishing Area 34 Advisory Committee
It was suggested that as aboriginal fishermen begin to participate in the commercial fishery, the incentive to use the food fishery for financial gain would decrease:
Now, if you want to go into commercial, here, there's a new set of guidelines, a new set of rules, this is how we're going to have your entry into commercial fishing. So the Marshall decision put an end to the need for a black market.
Roger Hunka
Aboriginal Rights Facilitator, Native Council of Nova Scotia
None of the witnesses who appeared before the Committee suggested that only aboriginal people were involved in an illegal commercial food fishery. Some witnesses alleged that non-aboriginal "poachers" were using the food fishery as a shield for their activities. Furthermore, illegal sales cannot take place without willing buyers who are predominantly non-aboriginal.
A troublesome aspect of the lobster food fishery is that it continues through the summer at a time when lobsters have moved inshore to moult. At this time of year, lobsters are found in certain areas in large numbers. They are more mobile because of the warmer water and they are hungry after having moulted. As a result, they are more easily caught than at any other time. Witnesses told the Committee that, because of this, traps set at this time of year could easily catch 10 times the numbers of lobsters caught during the regular season.
...of course everyone knows that the lobsters have shed and moulted and they're hungry they come out of the mud and they're starving and they trap extremely well, probably 10 times better than what they fish outside what we would be fishing. So what may sound like a native person fishing 10 traps when it's actually more like 200 basically because of the time of the year.
Chris Wall, Malpeque Harbour Authority
Although aboriginal witnesses told us that they practice conservation measures such as v-notching and returning berried lobsters, other witnesses explained that, at this time of year, lobsters carry eggs internally and that removing large numbers of female lobsters with eggs causes disproportionate damage to the stocks. In addition to the concerns over conservation, the quality of lobsters is low shortly after moulting and they are therefore of lower commercial value.
Witnesses complained of a lack of DFO monitoring and enforcement of the food fishery. Allegations surfaced that DFO enforcement officers had been instructed to turn a blind eye to poaching. Some aboriginal witnesses complained, however, that they had been harassed by DFO officers while conducting their food fishery:
They say DFO is not doing its job; it is to us because I went out there last year, two different days in one week. The first day, that boat was stopped - three times. The next time was twice. If this is the situation where one guy - a non-native - is stopped only once and the native people it's on a daily basis, I call that harassment. DFO is indeed doing their job. But I have a feeling they're being hired just to go after the aboriginal fishermen.
Millie Augustine, Micmac Lawyer, Big Cove
There was some debate as to whether the lobster food fishery should be conducted at the same time as the commercial fishery. On the one hand, there is an argument that open seasons are justified on the basis of conservation and that conservation should apply equally to the commercial fishery and the food fishery. On the other hand, if the food fishery is conducted while the commercial fishery is ongoing, it is relatively easy to move the catch into the commercial harvest. An additional factor is that any harvesting outside the commercial season is readily visible and more easily monitored.
The Committee recommends that:
The food fishery must be controlled to ensure that it is being conducted as genuine food fishery and not an illicit commercial fishery.
There must be an examination of the question of whether the food fishery should be conducted during the same seasons as regular commercial fisheries.
There should be an examination of lobster fishing seasons and their impact on conservation.
DFO should vigorously prosecute, without partiality, all of those who take part in illegal sales of fish caught for food, social and ceremonial purposes. Any buyer caught illegally purchasing lobster for a second time should lose his or her licence in addition to any other penalty.
All catches of lobster whether in the commercial or food fisheries should be properly monitored and documented in order that DFO has reliable harvest statistics.
Regulations for the food fishery should be reviewed for the purpose of tightening them up in order to simplify enforcement.
An issue raised in the context of the transfer of lobster licences is the potential concentration of fishing effort in certain, especially sensitive, areas, such as Malpeque Bay and Miramichi Bay. New entrants will understandably want to fish close to where they reside or perhaps where the fishing opportunities are best. There is little control, however, over where licences become available as fishermen retire. In Atlantic Canada, licences traditionally continued to be fished out of the same port after they are transferred to another owner. This practice confers a measure of continuity and stability to the fishery and ensures that exploitation of the resource remains dispersed.
Although lobster licences must be fished within the same Lobster Fishing Area (LFA) for which they are issued, the problem of overconcentration can arise within an LFA if the new licence holders chooses to fish in a different part of the LFA either because they perceive the fishery to be more lucrative or for convenience, the result may be too much pressure on the resource in localized areas.
This points to the need for control over where licences are fished in order to prevent an overconcentration of fishing effort in any one area. It should also be pointed out that the Supreme Court's November 17, 1999, would restrict aboriginal communities to fishing in traditional areas.
The Committee recommends that:
As licences are transferred to aboriginal groups, particularly in the lobster fishery, a way must be found to prevent excessive localized fishing effort in order to avoid adversely affecting the health of stocks, particularly in sensitive areas such as spawning and nursery grounds. No greater fishing effort should be allowed than is already the case, including at the local level.
One of the most difficult issues is that aboriginal communities, organizations and individuals presented the Committee with many varied points of view. The questions arise of who speaks for First Nations communities and people of First Nations ancestry and who is empowered to enter into negotiations and make decisions on their behalf. Although most First Nations witnesses said that the authority to negotiate and make decisions resides with the chief and band council of individual First Nations, after consultation with their communities, other witnesses disputed this. There are also the vexing questions of the rights of off-reserve First Nations persons and non-status persons of First Nations ancestry.
Many aboriginal communities in the Atlantic region of Canada suffer from appallingly high levels of unemployment. Poverty is rife and this engenders many other social ills such as poor health, substance abuse and suicide. The fundamental problem for most Aboriginal communities is that they lack an economic base. Looking for employment off reserve is often futile in regions which themselves have high unemployment rates compared to the Canadian average. In addition, communities lack the resources and access to capital to undertake economic development projects and initiatives such as training programs or conservation plans. Aboriginal youth are as a whole better educated than their predecessors but they have little opportunity within their own communities and must often seek employment elsewhere.
Witnesses stated that one of the benefits of the Marshall decision is that it has provided First Nations communities in the Atlantic with a sense of hope, that through access to resources they will finally have basis on which to build an economy.
At some point it will be essential to determine who has the authority to negotiate on behalf of the Mi'kmaq, Maliseet and Passamaquoddy. It may well be to the advantage of the Mi'kmaq and Maliseet peoples to find a way to come together as unified nations for purposes of negotiating agreements to implement their treaty rights.
It is imperative that interim fishing arrangements must be in place prior to the reopening of fishing seasons in April 15, 2000. Without such arrangements in place, the risk of renewed confrontation between aboriginal and non-aboriginal fishermen is high. The Chief Federal Representative (CFR), Mr. James MacKenzie, and the Assistant Federal Representative (AFR), Mr. Gilles Thériault, are expected to play a crucial role arriving in securing those arrangements.
Unfortunately, at the time of the Committee's travels through the Maritime Provinces and Quebec, few of the witnesses had met with either Mr. MacKenzie or Mr. Thériault. Indeed, some were not aware of the terms of reference provided to the Chief Federal Representative and his assistant.
It is fair to say that many of those who were aware of the terms of reference were not pleased by the partiality of the terms. For example, while the CFR was expected to conduct negotiations with First Nations, the role of the AFR would be to "develop a process to obtain the view and comments of other interests and report these to the CFR."
Nor did it escape the attention of witnesses that "reasonable and appropriate funding" would be provided to support First Nations' participation in discussions while DFO had committed only to "consider" proposals to help offset consultation costs incurred by "other groups." A number of witnesses in fact found the reference to "other interests" to be offensive, treating them like second-class citizens:
...and all of a sudden this court ruling comes out and we hear that we could be losing our livelihoods and our businesses after having made loans and people getting in and out, while other people had the same chances to get in. And watching TV and watching the news and we were called "others", it created a lot of...we pay taxes. We thought we were doing something good. It made us start and think: are we in the right business? What are we, anyway?
Richard D'Entremont, Acadian Fish Processors
These statements, in a Terms of Reference supposedly designed to solve a problem, seem to focus upon division and upon creating two classes of citizens and I find that quite troubling.
The Hon. Kevin J. MacAdam, Minister
PEI Department of Fisheries and Tourism
Despite the Minister's commitment to an open and transparent process, witnesses also commented on the lack of information about the status of the CFR and AFR's negotiations and consultations.
The Committee recommends that:
The federal government must be more proactive in facilitating the negotiations by providing stakeholders both aboriginals and non-aboriginals with funding and resources (including technical advice) to participate effectively in the process.
The federal government must put in place an interim fishing plan by spring 2000 to demonstrate its good faith. This plan could include: a fisheries training program; a reduction and sharing of traps in areas where agreements have been reached; leasing of licences; and, purchase of licences.
The federal government must provide DFO with the financial resources to accomplish this task in the next budget.
The mandate for the MacKenzie process must be amended to be more balanced and to let all stakeholders know that they have full access to the process.
Notwithstanding the clarification issued by the Supreme Court on November 17, 1999, a number of crucial issues remain to be resolved. There was considerable debate, during the Committee's hearings, over who is entitled to treaty rights affirmed by the Marshall decision and, for example, whether the Marshall ruling applies to Mi'kmaq and Maliseet bands in Québec.
Some First Nations bands maintain that the decision is theirs alone. The question is important, not least as it could have substantial bearing on the number of people entitled to exercise the treaty right and therefore on the share of access to fisheries resources that must be transferred to First Nations. All we can say is that the issues of status, band membership and residency are exceedingly complex, difficult to resolve and remain to be studied closely.
The right to trade for a "moderate livelihood" is clearly the central concept of the Supreme Court's decision, yet it is vaguely defined. It clearly means different things to different people. On the one hand, does it mean a livelihood equivalent to Canadian society as a whole? Is it relative to a provincial average income or to the income of fishing communities? Would it vary according to incomes in the different fisheries? Does it apply to the person fishing or does it apply to the whole community to which he/she belongs? Does it include income from other sources? In any case, it may be impossible to put into practice in any meaningful way.
In addition, as a number of witnesses have pointed out, fisheries resources are not sufficiently abundant to provide a moderate level of livelihood for all Mi'kmaq, Maliseet and Passamaquoddy persons in the Atlantic region. This problem is more acute if it is found at some time in the future that non-status aboriginal persons also have a treaty right. Given this limitation, there will be an infringement of the treaty right from the outset. It may simply be impossible to implement the treaty right on the basis of a moderate livelihood.
Instead, the solution may be to negotiate a modern-day agreement in good faith on the sharing of fisheries with the Mi'kmaq, Maliseet and Passamaquoddy Nations. In its November 17, 1999 decision, the Supreme Court confirmed that non-aboriginals also have rights of access to the fishery and that the treaty rights of First Nations be balanced against the rights of traditional non-aboriginal fishermen some of whose families have depended on fishing for generations. The question still remains of exactly where the balance lies. The Committee heard widely divergent opinions on this subject and the challenge will be to arrive at a mutually acceptable sharing of access to fishery resources.
The Committee recommends that:
The issue of whether non-status persons of Mi'kmaq, Maliseet and Passamaquoddy ancestry are entitled to treaty rights affirmed by Marshall must be resolved.
The issue of whether treaty rights affirmed by Marshall apply to bands in Quebec must be resolved.
The concept of "moderate livelihood" must be clarified or better defined.
1 Fisheries Resource Conservation Council, A Conservation Framework for Atlantic Lobster: Report to the Minister of Fisheries and Oceans, FRCC95.R.1, November 1995, p. vi.
2 The West Coast Report (Interim), Recommendation 16; The West Coast Report, Recommendation 5; The Nunavut Report, Recommendation 11; and, The Prince Edward Island Report, Recommendations 11 and 16.