FOPO Committee Report

SUPPLEMENTARY OPINION OF THE CANADIAN ALLIANCE
JOHN CUMMINS, M.P.
ANDY BURTON, M.P.

Atlantic Fisheries Policy Review

Few would deny the need for a review of Atlantic fisheries policy. Even fewer would deny that for the review to be meaningful everything must be on the table. The surprise then is that the most serious shock to fisheries policy management in the Maritimes is not a topic of discussion in the Policy Review. Amazingly the government’s decision to transfer hundreds of millions of dollars worth of licences, vessels and equipment out of communities and away from families that have fished the waters of the Maritimes for the past hundred years does not even warrant a mention in the Atlantic Fisheries Policy Review.

On October 22, 2002 Fisheries Minister Thibault advised the Fisheries Committee 90 vessels had been transferred or purchased for aboriginal communities under the Allocation Transfer Program and some 166 vessels were transferred from November 1999 to the end of January 2002 under the Marshall Response Initiative. These numbers did not include the licences the government committed to transfer but had not done so as of January 2002. Amazingly, no where in the policy review documents is there the acknowledgement that the government’s aboriginal fishing policy has changed the landscape of fishing communities and in some cases destroyed a way of life.

Changed Landscape

The seriousness of the shock to fisheries management is revealed in a February 10, 2002 Briefing Note for the Minister — Mr. Thibault is advised that the acquisition of lobster licences has “changed the landscape for some local communities,” and that the change was “particularly significant for the villages of Richibucto and Neguac.” “In Richibucto,” the document advised the Minister, “Big Cove First Nation now has 40 lobster licences, Indian Island First Nation 6 and non-native fishers 39. The number of lobster licences being fished from that port increased from 50 to 85.” The Minister is advised of the transfer of 109 lobster licences to bands: “Under the Fisheries Access Program which was introduced following the Marshall decision, seventy three LFA 23 and 25 lobster packages have been acquired for Aboriginal organizations. If you add the lobster packages acquired prior to Marshall under the Allocation Transfer Program, the number of lobster licences amounts to 109.”

Destroying a Way of Life

Fishermen are concerned that their way of life is being destroyed, the February 10^th Briefing Note advises the Minister: “[They] would like to know how far that licence retirement will go. They are concerned that the process is destroying a way of life in some coastal communities and create significant upheaval in others. They may further, take the position that the Government of Canada is using the fishery to correct wrongful treatment of Aboriginals that has occurred for the last half millennium.”  

A Saturation Point

The Minister is advised in the February 10th departmental note to tell fishermen that the transfer of licences out of the public fishery to aboriginals will end only when the saturation point is reached, when every aboriginal who wants to fish has a licence: “There will be a point however, where saturation is reached. This is due to the fact that there are limited numbers of First Nation members who are able to fish and who will want to participate in the fishery.”

Negative Impact on Non-Native Fishers

A May 8, 2002 Briefing Note for the Minister advised of snow crab transfer in Eastern New Brunswick:

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“Under the Marshall Long-term Response Gulf Region has retired 5 midshore snow crab and 79 lobster fishing enterprises.

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The acquisition of snow crab quota has a negative economic impact on non-native fishers in the village of LeGoulet as four of the five licences were retired from this area. This issue has not impacted the MFU.

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In Miramichi Bay, DFO has so far retired most of the inshore lobster enterprises from the Neguac area.

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There will be growing difficulty in acquiring licences so as not to increase the effort.”

Aging Pool of Non-Native Fishermen

A May 10, 2002 Briefing Note For the Minister, entitled Implications of the Marshall Decision in Malpeque Bay, was advised:

•	“Traditional commercial lobster fishers from the Malpeque Bay, Prince Edward Island, are growing increasingly frustrated with how DFO is implementing the Marshall decision in providing more access to the local commercial fisheries, most notably lobster.

•	Lennox Island First Nation fishes 21 lobster licences in LFA 24 from Lennox Island located in Malpeque Bay. Two other lobster licences in LFA 25 are fished from Higgins Wharf. Aside from lobster, Lennox Island First Nation is allocated to fish 30 metric tonnes of snow crab.

•	Abegweit First Nation has 5 communal lobster licences for LFA 24 as well as 30 metric tonnes of snow crab.

•	Native council of PEI has 4 communal lobster licences, two in LFA 24 and two in LFA 26A.

•	The difficulty in acquiring additional LFA 24 lobster licences to meet future commitments will increase as the pool of older fishers gets smaller ... There remains a pool of only 46 traditional commercial fishers in the area.

•	In 2000, Lennox Island had a 20,000 lbs lobster quota for food, social and ceremonial purposes. In 2001 there was no set quota but under their fishing plan each member received only one tag provided they did not participate in the commercial lobster fishery.

•	Traditional commercial fishers have the perception that the food, social and ceremonial fishery at Lennox Island is reducing the lobster stock in Malpeque Bay.”

Unauthorized Sale of Landings

A March 2, 2002 draft of the same memo put the illegal sale of lobster in stronger terms: “In the view of many fishers, the food fishery will remain an issue as long as it is conducted outside of the commercial fishing season and the authorized sale of landings continue to take place.”

Marshall Did Not Recognize a Treaty Right to Lobster

The Atlantic Fisheries Policy Review fails to consider the impact of the continued transfer of inshore licences, particularly for snow crab and lobster, to aboriginals. This oversight is all the more reprehensible given the department’s acknowledgement of the difficulties posed by the transfer in Briefing Notes prepared for the Minister.

Equally disturbing is the government’s insistence that the transfers were necessary to meet the requirements of the Marshall decision. The government relies on the “devil made me do it” argument for a policy that is seen disruptive and destructive by fishermen and fishing communities. The realty is that no court has identified a treaty right to lobster or snow crab based on the Marshall decisions of September and November 1999. In fact courts have rejected claims that a treaty right to lobster exist. They did it in part on a careful reading of the Marshall decisions and on the evidence provided to the court by the Department of Fisheries and Oceans that aboriginals in the Maritimes had never been actively engaged in a lobster fishery either prior to contact with Europeans or at the time that the Halifax treaties of 1760-61 were entered into.

Consider the following:

 

Barlow Case: In 1999 immediately following the first Marshal decision a New Brunswick band claimed in Federal Court a treaty right to fish lobster commercially. Department of Justice lawyers representing the Minister of Fisheries rejected the claim, offered to provide detailed evidence to show that aboriginals had not engaged in a lobster fishery at the time the treaties were entered into, and requested that the court follow the test established in Marshall to establish an treaty right. They requested an detailed examination of historical, anthropological and ethno-historical evidence to determine:

•	“Whether or not the Applicant Ken Barlow is a member of an aboriginal community which was a signatory to one of the series of 1760 Treaties of Peace and Friendship entered into between the Mi’kmaq people and the Crown? ;”

•	“If so, which Treaty is it?”

•	“What are the terms of that Treaty?”

•	“Are the activities of lobster fishing and trading aspects of the rights recognized by the Treaty?”

•	“Was the Applicant Barlow exercising any such right in an area traditionally used by the aboriginal community?” and

•	“What is the traditional territory of his aboriginal community?”

The applicant did not pursue the case once these demands were made by the Department of Justice lawyers.

Shubenacadie Case: This Nova Scotia case is being pursued in Federal Court by a group of Nova Scotia aboriginals claiming a right to lobster. The Department of Justice on behalf of the Minister of Fisheries has prepared extensive evidence to show that there was never a aboriginal fishery for lobster either before or at the time the treaties were entered into.  The Minister of Justice offered the defence in Federal Court in Halifax on May 14, 2001 that the aboriginal claim to a treaty right is “historically inaccurate:”

25.	“He specifically denies that these Plaintiffs have any constitutionally protected aboriginal or treaty rights to fish lobster in St. Mary’s Bay or at all.

26.	He specifically denies that the Plaintiffs, their predecessors or the Mi’kmaq Indinas in Nova Scotia fished lobster for food, social or ceremonial purposes before or at the time of European contact in St. Mary’s Bay or at all.

27.	He further specifically denies that the plaintiffs, their predecessors or the Mi’kmaq Indians in Nova Scotia fished lobster for a moderate livelihood at the time of the Treaties.

28.

He denies that the Treaties include a term providing the Plaintiffs with a right to fish lobster for a moderate livelihood. He further says it was not within the reasonable contemplation of the parties that the plaintiffs be granted a right to fish lobster for a moderate livelihood pursuant to the Treaties.”

Confronted with this irrefutable evidence denying the existence of an aboriginal right to fish lobster, the Shubenacadie Band and the Department of Fisheries and Oceans are considering ending the court case and negotiating an aboriginal right to fish lobster, a right denied by historical evidence.

Simon and Duplessis: Simon and Duplessis were New Brunswick aboriginals who were charged under the Fisheries Act. They claimed a treaty right to harvest lobster. Department of Justice lawyers on behalf of the Fisheries Minister provided evidence that the men did not enjoy a treaty right to harvest lobster. Later in the trial as part of joint statement of fact by both sides the Crown asked the Court to assume that the accused had a right to lobster.

It seems clear that the Court was incensed by the concession by the Crown and would have rejected the claim to a right lobster if it had been allowed to decide the issue. In the decision the judge stated:

“The first matter is whether the defendants, as members of the Burnt Church First nation had an aboriginal right to fish lobsters for food, social and ceremonial purposes in the waters of Miramichi Bay. For the purposes of this prosecution, and this prosecution only, the crown asked this court, in the Agreed Statement of Fact, to assume that the defendants had an aboriginal right to fish lobster...

 “In the absence of this agreement, it would have been incumbent on the defendants to establish the aboriginal right to fish lobsters for food ... pursuant to the requirements set out in cases such as Sparrow, Gladstone, and Van der Peet. These cases clearly point out that to be an aboriginal right, the activity, in this case fishing lobsters for food ..., must be an ‘element of practice, custom and tradition integral to the distinctive culture of the aboriginal group claiming the right ... to be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question ... one of the things which made the culture of society distinctive. A court cannot look at those aspect of the aboriginal society that are true in every human society (eg eating to survive) or at those aspect of the aboriginal society that are only incidental or occasional to that society. ... The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact with European society ...”’ R. v. Van der Peet.”

“Although it should have been of no concern to me because of the concessions of right by the Crown in the Agreed Statement of Facts, I have to admit, that as I listened to Chief Dedam, and the lobster experts presented by the Crown and the Defence, to the affect that there was no lobster fishery prior to 1800, the questioned the validity of the aboriginal right which, in this Agreed Statement of Facts I was asked to assume existed for members of the Burnt Church First Nation.

***

“As to the Marshall commercial fishing taking place ... it was, in my opinion, ill conceived and illegal. Chief Dedam obviously felt that the case of R. v. Marshall gave the fishers of Burnt Church a treaty right to fish lobster commercially whenever they wished and without DFO regulation of any kind. ... In my respectful opinion, Chief Dedam and the Burnt Church First nation fishers have interpreted the Marshall decision too broadly. I find it provides no protection or support for the Defendants in this prosecution.

“The Supreme Court in Marshall made it clear that each of these cases dealing with treaty rights must be decided on the merits of each case. Donald Marshall was fishing for eels in the closed season using a fyke net. There is a clear distinction to be made between someone fishing for eels on a very small scale and the type of lobster fishery that took place on Miramichi Bay... The unregulated commercial lobster fishery which took place at Burnt Church in the Fall of 2000 in no way resembled the Donald Marshall eel fishery at Pomquet harbour, Nova Scotia in 1993. Unlike Pomquet harbour, at Burnt Church there was indeed conservation issues; there is a significant non-Native commercial fishery; there was no suggestion that at Burnt Church, lobsters were a traditional harvest, being harvested by a traditional method, and in relatively small quantities. Some court in the future will ultimately decide these issues when presented with the appropriate set of circumstances. I suspect that at that time, contrary to what took place in R. v. Marshall #1 ... As mentioned earlier, the Marshall case provides no defence for the Defendants to these charges, because in order to benefit from a treaty right there must be a proper foundation laid in the evidence. In this case, there has been no evidence led which would support a treaty right defence to these charges.

Francis Case: In Francis, an aboriginal was charged under the Fisheries Act. The Nova Scotia Provincial Court in May 2003 rejected a claim of a treaty right to harvest lobster. Justice Jean-Louis Batiot in rejecting the treaty right to fish defence reviewed the law as laid down in the Marshall decision:

“The Supreme Court, in R v. Marshall (No. 2) provides guidelines with respect to prosecution of these matters and explains the onus on the Defence to prove the existence of a Treaty. I paraphrase for the benefit of the Defendant:

1.	The Crown must establish the factual elements of the offence;

2.	The accused must show that he or she is a member of an aboriginal community in Canada with which one of the local treaties described in the September 17th 1999, majority judgement was made;

3.	The accused must show that he or she was engaged in the exercise of the community’s collective right to hunt or fish in that community’s traditional hunting and fishing grounds since no Treaty was made by the British with the Mi’kmaq population as a whole.”

The Court also rejected the claim to an aboriginal right to fish lobster for food, social and ceremonial purposes:

“In the case at bar the evidence does not establish an aborignal right to fish for food lobsters in St. Mary’s Bay since there is no evidence to show that it was an integral and distinctive aspect of the Mi’kmaq group to which Mr. Francis belongs and that the practice existed at the time of European encounter.”

Perpetuating a Hoax

It is remarkable that on one hand the Minister of Fisheries and Oceans claims that he is obligated to transfer licenses to aboriginals until all aboriginals who whish to fish commercially can do so and at the same time provide expert evidence to the courts that there is no basis for aboriginal claims to lobster based on either an aboriginal right as defined in the Sparrow and Van der Peet decisions or a treaty right as defined in the Marshall decisions.

It is all the more remarkable to read the evidence provided to both federal and provincial courts in New Brunswick and Nova Scotia by the Department of Justice on behalf of the Minister of Fisheries and realize that historically aboriginals have never engaged in a lobster fishery. No court decision has endorsed aboriginal claims to either an aboriginal right or treaty right to harvest lobster. Claims that the Marshall decisions of September and November 1999 have established the basis of a treaty right to harvest lobster have been rejected.

Why is then that the Fisheries Minister perpetuates the hoax that the Marshall decision requires him to transfer boats, gear and licences to fulfill treaty obligations?  No such obligations exist.

Policy Review Misses the Biggest Shift in Policy

The failure of the government to consider the impact of its aboriginal fishing policy in the Atlantic Fisheries Policy Review makes meaningless the whole process. The arbitrary transfer of hundreds of millions of dollars worth of access from one group to Canadians to another simply because some Liberal thought it a good idea is unconscionable. This arbitrary transfer of fishing rights is the biggest policy shift in the fishery since Confederation yet the government avoids discussion of it in its Atlantic Policy Review. It’s a shameful oversight that makes a mockery of the whole policy review process.

Snow Crab Allocation for 2003

The three-year Snow Crab Management Plan for the southern Gulf of St. Lawrence announced by the Minister of Fisheries in May 2003 has serious implications for all fishermen:

1. The seizure of 30 percent of the traditional snow crab fishermen’s allocation and transfer to other user groups without compensation undermines the very essence of a limited entry fishing regime. The value and stability fishermen attach to a limited entry licence is cast aside when government can without compensation cavalierly reassign that access.
2. Transferring allocation to a Union, in this case the Maritime Fishermen’s Union, compromises the union and undermines the very essence of a union which is to represents its members. As a distributor of government largess the union is at once beholden to the government and the possessor of an inappropriate lever over fishermen to ensure compliance with union leadership objectives. A union’s job is to represent its members not to be the distributor of government largesse. A union should be the agent of its members not of government.

A May 16, 2002 Briefing Note For the Minister, entitled Maritime Fishermen’s Union, advised the Minister of Fisheries that the union had a conflict of interest, the union wanted the allocation awarded to the union rather than to individual fishermen:

“The MFU was very disappointed that the snow crab management plan for Area 12 in 2002 did not provide them with permanent access to the resource as they have been requesting for several years. They were seeking 25% of the share provided to the permanent midshore fleet in New Brunswick and they proposed that the allocation be provided to their organization as opposed to individual fishermen.

The departmental Briefing Note further appeared to be advising the Minister of Fisheries that the union wanted control of the allocation so as to induce and control fishermen to maintain membership in the union:

“... The MFU is also aware that there exists a tendency when permanent access is provided to individuals within an organization, that within a short frame, they disassociate themselves from the organization to form their own entity.”

1.	Government decisions should always be made in the best interest of all Canadians. Government has no right to use the powers granted to it to convey a political benefit to its friends. An April 9th 2003 story in the Saint John Telegraph Journal entitled, Ottawa Playing Politics, stated:

‘New Brunswick’s snow crab fishermen are accusing Ottawa of putting politics ahead of science when comes to deciding the future of their industry. Leaders of the Northeast Crabbers Association and the Acadian Crabbers Association told a federal committee Tuesday there is no other reason to explain why Ottawa wants to turn temporary access to the snow crab fishery in the Gulf of St. Lawrence into a permanent sharing agreement. “I think there’s been political pressure,” Joel Gionet, President of the Acadian crab fishermen said.’

A May 6th 2003 story in the Telegraph Journal, entitled “Politicians Failed to Do Their Jobs In Snow Crab Dispute,” stated:

“Elected officials must do more than just lobby on behalf of their constituents. They must also strive to ensure that government decisions are well understood and accepted — be it grudgingly or willingly — by the people involved. For that task you need a diplomat, not a DJ.” 

A May 7th 2003 story in the Moncton Times and Transcript, entitled “Fisheries Ministry Mishandled Crab Quota Plan,” stated:

“Fisheries Minister Robert Thibault should have done a better job explaining his snow crab management plan. Instead, it was ‘released’ when Beausejour-Petitcodiac Liberal MP Dominic LeBlanc encouraged New Brunswick reporters at the end of Question Period Friday to ask Thibault about new permanent access to snow crab for inshore fishermen. Thibault obliged and said the former temporary access to the snow crab would become a permanent 15 per cent share. LeBlanc crowed that it was a victory for the inshore, many of whom live in his riding.”

A May 10th 23003 story in the Telegraph Journal, entitled “LeBlanc Stands By ‘Fair and Reasonable’ Snow Crab Fishery Decision,” stated:

“As flames lit up the night sky in Shippigan last weekend, it was only natural to wonder if New Brunswick Liberal MP Dominic LeBlanc was feeling the heat. It was LeBlanc, after all, who had been the most outspoken federal politician in the volatile snow crab fishery dispute. He was also the MP widely credited (and blamed) for a modern-day Robing Hood story in which the wealth of a few northeastern crabbers was to be permanently shared — in part — with the sizable fishing community within his own riding.”

The heist of 30 percent of the quota of traditional crab fishermen by this year’s Management plan resulted in a movement of fish to a Liberal Member of Parliament’s riding from a riding which has not traditionally supported the government. Transfers of allocation must be made without a hint of political favouritism.

2.

Since 1989 the traditional Snow Crab fishermen in Area 12 have invested close to $10 million in scientific research and co-management to the resource. When need be they have shut down the fishery in order to protect the crab stocks their livelihood depended upon. With the end of co-management, the Minister has refused to permit the traditional crab fishermen to undertake science work that they would fund using their own highly qualified scientist, vessel and gear. This disgusting display of pique by the Department only adds insult to injury. Fishermen who seek to do research should be lauded not stymied at every turn. The good will and unparalleled investment in cash and resources made by the fishermen for the betterment of their fishery has ended with the Minister’s arbitrary, unprincipled, and uncompensated seizure of quota.

Atlantic Salmon Conservation

The establishment of a wild Atlantic salmon endowment fund is a welcome step forward. Unfortunately no mention is made of the need to ascertain what has led to this disastrous decline in wild Atlantic salmon. The Department of Fisheries must commit to address the cause of the decline so that rebuilding can begin. Failure to do so means that in short order the only spawning salmon in rivers and streams on the East Coast will be escapees from fish farms.