FOPO Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 24, 1999

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[English]

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

We're a little short members at the moment, but it does go into the written record. They will be here.

Mr. Mark Muise (West Nova, PC): Mr. Chairman, I think “vertically challenged” would be better.

The Chair: I didn't mean that; we have fewer members, I meant.

Go ahead, Chris. Welcome.

Mr. Chris Milley (Executive Co-Director, Mi'kmaq Fish and Wildlife Commission): I'd like to apologize for my voice; I have a bit of a cold, so please bear with me.

I'd like to read from a prepared statement, if you don't mind.

I would like to thank you for giving us the opportunity to speak with you today.

The Mi'kmaq Fish and Wildlife Commission was established as a step toward meeting the responsibility to manage natural resources stemming from the aborignal and treaty rights held by the Mi'kmaq of Nova Scotia. However, as I'm sure you are well informed, the Mi'kmaq have been powerless in the fishery for many years. It was therefore with great excitement that the Marshall decision was received, since the decision was seen as a move toward greater economic independence from government social programs, which is a necessary first step toward self-determination. The Mi'kmaq must be and will be involved in all aspects of the fishery, including the food fishery, full-time fishing, part-time fishing, and charter-boat fishing.

The immediate step facing Mi'kmaq communities has been how to get their fishermen involved in the short term. Despite inaccurate media statements and rumour, there are at this time very few Mi'kmaq fishermen involved in commercial harvesting. Accommodating these fishermen in the existing fishery need not be a complicated matter. It will require DFO buyouts and retirement of some existing licences, and in some cases, such as developing species, it may require priority access.

Other options are also possible. For example, in the lobster fishery in southwest Nova Scotia, fishermen stated that they would be willing to reduce individual trap limits by 25 to accommodate new Mi'kmaq fishermen in the fishery. This would make room for 64 Mi'kmaq fishermen without displacing anyone.

These options would accommodate the immediate need of Mi'kmaq communities in the area. Long-term solutions, however, will need to be worked out through dialogue. In any event, increased involvement in the commercial fishery as a result of the Marshall decision need not create undue hardships in non-native communities.

Another immediate concern facing Mi'kmaq communities is the need to strengthen their fishery management structures. Since its inception, the MFWC has been constrained by the lack of sufficient financial resources needed to implement management activities such as monitoring, enforcement, habitat protection, research, and community-level planning.

The continued development of the MFWC and other Mi'kmaq fishery management initiatives, in spite of the lack of sufficient federal support, is a testament to the commitment of the Mi'kmaq leadership to the management of the activities of their harvesters.

In the short term, DFO funding will be necessary to fully establish and implement a Mi'kmaq fishery management system. However, in the long term, management costs should be borne by the resource industry itself.

This system will be based on the principles of joint nation-to-nation management. Furthermore, to ensure effective management, the Mi'kmaq are working to establish a bottom-up approach to management decision-making. Today many Mi'kmaq communities are organizing themselves so that harvester committees are actively participating in co-managing their resources with their government.

This system is the foundation of a potentially beneficial change in the way fisheries are managed in Atlantic Canada. A co-management system involving Mi'kmaq harvesters and the Mi'kmaq government can be a good model for change. However, this will require changes to the Fisheries Act if the benefits of the Mi'kmaq management system are to be realized within the non-native fishery through joint management between the Mi'kmaq and the Government of Canada.

DFO is, by nature of the act, a large bureaucracy that has as its sole objective the implementation of a top-down management system. Despite all the evidence, internationally and historically, that top-down management systems are not more effective in protecting coastal communities and conserving fisheries resources for future generations, the government continues to exert a top-down control system. In the period since the Marshall decision, there has been no evidence that the organization is able to accommodate a bottom-up fisheries management system such as that envisioned by the Mi'kmaq.

Recent efforts for cooperation between Mi'kmaq communities and non-native fishermen's organizations have been the result of discussions regarding mutual involvement in community-level management activities, such as joint research and monitoring projects. A bottom-up approach through continued cooperation at the community level will lead to a better understanding of the fishery, which will lead to better management plans.

DFO has created a system in which fishing has become a very specialized activity. There seems to be little attention paid to the benefits of multi-species harvesting and integrated management. While the department talks about integrated management, little has been accomplished thus far. This issue is the very centre of Mi'kmaq resource management priorities.

Individual Mi'kmaq harvesters are by tradition the focus of an integrated resource management system. For example, one harvester may seek part of their income from fishing and part from other resource-harvesting activities. As a result, Mi'kmaq harvesters are in a position to directly see the impact of improper management of one sector on another, and to personally feel the effects. In addition to promoting integrated resource management, the use of a general harvester strategy also provides added economic security at the family and local community levels.

As one resource may be adversely affected due to resource depletion or global market changes, other resources can take up the slack and reduce the dramatic loss to family income that may be experienced if the family is dependent on primarily one or two species.

Since September there has been considerable effort to establish Mi'kmaq fishery policy objectives, local harvest management plans, and long-term development strategies that will not compromise the resource or the Mi'kmaq relationship with neighbouring non-native communities. While the policy is still in formative stages, it identifies priority objectives from the fishery within the Mi'kmaq Nation, including self-determination, maximizing employment, and providing support for social programs and infrastructure.

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Unfortunately, the existing legislation and the mode of operation of the Department of Fisheries and Oceans is a looming factor for Mi'kmaq fisheries management efforts. This is not to say that individual employees of the department have created barriers, but rather the system in which these employees operate cannot accommodate effective change.

While some people may greet the Marshall decision with fear and suspicion, many now see the decision as an opportunity to promote better management of the fishery at the local, regional, and Atlantic Canada level. This opportunity requires building trust between Mi'kmaq and non-native communities through cooperation, and legislative change that will enable a joint management system to be established.

Thank you.

The Chair: Thank you, Mr. Milley.

Who wants to go first? Mark?

Mr. Mark Muise: Thank you, Mr. Chairman.

Thank you, Mr. Milley, for your presentation.

This morning we heard Mr. Hunka from the Native Council of Nova Scotia, and he was telling us that they had developed a management plan for their members to come into the fishery based on protecting the biomass and not displacing any people from the existing fishery, and that we should work through this through what the treaties in the past were based on—peace and friendship and these things. I mentioned to him that yesterday one of our witnesses said that about a million pounds of lobster were taken out of St. Mary's Bay last summer. I know it's for the food fishery, but our witness yesterday was saying that this was probably the largest black-market activity that was going on. I just explained that. I said that on the one hand, you say you want to protect the biomass and not displace anyone, but with that taking place, you're not taking care of the biomass, and indirectly everyone will be displaced if the fishery is harmed, because all the lobsters come there to moult, breed, lay their eggs, and do whatever lobsters do.

His comment was that with the Marshall decision, that would be cleared up, because instead of having the food fishery be a commercial fishery, the commercial fishery would be one, and food would be only for food. I'd like you to comment on that if you could.

Mr. Chris Milley: Actually, I think maybe the way of answering that is to give you an idea of what some of the harvesters have been saying.

In the past, people have used every means at their disposal to get involved with the fishery, and the opportunity presented itself in the food fishery. That's changed with Marshall. Yes, I agree. A lot of the people now see that their involvement in a commercial activity that is above the table and they can go into with a sense of legitimacy changes their desire to do other things.

At a recent harvesters meeting in southwest Nova Scotia, the harvesters were saying that they themselves have to make sure there are tighter controls on the food fishery, so that they aren't competing with themselves, that if people in the community put together regulations for their own commercial activity, they want to make sure they aren't putting a system in place that has loopholes.

Mr. Mark Muise: One of the comments we've heard—and I can't think of any fisherman I've spoken to who hasn't said this—is that they have no problem with the natives coming into the fishery, but there has to be one season, one management regime, one enforcement body for all, so that it can work properly. We have conservation guidelines or rules put in place for reasons. St. Mary's Bay, for example, is closed in the summer because of exactly that reason. The lobsters come and do what lobsters do. If you don't respect that, you're effectively killing what we all want to have and keep in our communities, and the economic benefit that comes from that.

Could you comment on that, one season?

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Mr. Chris Milley: First of all, we are working to make sure that the people involved in the fishing industry are involved in making decisions about the management. That means people are on a bit of a learning curve.

It's possible, and indeed likely, that there will be, as we put it, a “common” season as opposed to “one” season, where two nations are fishing at the same time, but two nations must be in a position to make decisions about when they fish. Rather than saying okay, here's the season, this is why we have it, and you have to live with it, we should allow people the opportunity to explore and learn why there is a season, why it exists. Most of the commercial seasons are there because that's when the fish are available, but with lobster there are more issues than availability, and people have to explore those.

The Chair: Last question, Mark.

Mr. Mark Muise: Mr. Hubert Saulnier made an interesting comment this morning. For instance, let's say I know lobster, and I know why we don't fish them in the summer. But let's say I'm given the right to hunt deer, and I go into the woods in July and August to hunt deer. A native might come and tell me I shouldn't be hunting deer at this time. Why not? Because they're carrying x amount of fawns within, and if you shoot them now, you haven't shot just one deer, you may have shot three.

So I think it's by consultation—

Mr. Chris Milley: I agree, and I think you'll find that most people will agree with you.

Mr. Mark Muise: Okay.

Mr. Chris Milley: Just in response to that, the communities in and around St. Mary's Bay that have been fishing there, Bear River and Acadia, have made public statements about the fact that they are going to be starting the commercial fishing season next week.

Mr. Mark Muise: That's correct.

Mr. Chris Milley: We're working very hard to get them into that season.

Mr. Mark Muise: Okay.

The Chair: Thank you.

Mr. Cummins.

Mr. John Cummins (Delta—South Richmond, Ref.): Thank you, Mr. Chairman.

In your presentation you note that the Mi'kmaq have been powerless in the fishery for many years. Prior to 1968, as you know, licences were available to anybody for 25¢. What was the participation by the Mi'kmaq at that time, and why did that not continue?

Mr. Chris Milley: I'm not certain of all the reasons, but from discussions with some people who used to be in the fishery, I can tell you that with regard to policies, the Mi'kmaq people have been isolated from not just the fishing industry but also most natural resource industries. This is a matter of economic ability; access to capital; understanding the rules when people's first language wasn't, for the most part, English; and the different sense of economic gain from activities such as fishing or logging. Things have changed a lot since that time.

Mr. John Cummins: You talk about accommodating Mi'kmaq fishermen through DFO utilizing buyouts, retirement of some existing licences, and priority access to developing species.

You've given this example in your brief:

Other options are also possible. For example, in the lobster fishery in South West Nova Scotia, fishermen stated that they would be willing to reduce individual trap limits by 25 to accommodate new Mi'kmaq fishermen in the fishery. This would make room for 64 Mi'kmaq fishermen without displacing anybody. These options would accommodate the immediate need of Mi'kmaq communities in that area. Long-term solutions will, however, need to be worked out through dialogue.

Just how large an involvement do you see?

Mr. Chris Milley: That will depend on a lot of things. First of all, relatively speaking, as regards sheer population alone, we're not looking at a lot of people involved in the fishery. One cannot go around and assume that every Mi'kmaq person, male or female, of an age to pull a trap wants to go lobster fishing for a living. I think there's a myth out there that the population of 10,000 Mi'kmaq in Nova Scotia equals 10,000 fishermen in Nova Scotia. That's like saying the entire population of Halifax wants to go fishing. It doesn't make sense.

The 64 licences would do more than accommodate the existing number of people in that area. In fact, that's probably why it hasn't been put into effect. It was discussed at the table when we were meeting, and it was an idea that was put forward. Although it hasn't happened yet, everybody thought it was a great idea.

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So there are still opportunities for things like that to be explored in order to make room for people. It isn't presented as a fait accompli but as one option. There are ways of getting people into the fishery without displacing people, without creating hardship.

Mr. John Cummins: I guess the point here is not that everybody wants to go fishing but that the court said this was a communal right. The concern might be that fishing provides a moderate living for the community, not the individuals. I think there's some concern over that issue.

Mr. Chris Milley: Actually, the clarification that came down recently I think mirrored exactly what the chiefs have been saying, that as it's a communal right, it's a community right exercised by the individual.

Mr. John Cummins: Yes.

You talk about the lack of sufficient financial resources needed to implement such management activity as monitoring, enforcement, habitat protection, research, and community-level planning. You also say that in spite of insufficient federal support, you've managed to accomplish some things. You then go on to say, “In the short term, DFO funding will be necessary to fully establish and implement a Mi'kmaq fishery management system...”

There is now a shortage of money for DFO to operate the department. We've had cutbacks in science, and on the west coast, cutbacks in hatcheries. All sorts of cutbacks have been experienced at DFO. The concern I guess many have is whether DFO funding a parallel management system is a reasonable use of DFO money, and whether it is a better way, or a necessary way, to solve the problems that we all recognize are there.

Mr. Chris Milley: The short answer? Yes.

As well, it's not a parallel management system but a more effective management system. DFO can use a lot of the existing organizations and structures that are within both Mi'kmaq communities and non-native communities. An example of this is the Fishermen and Scientists Research Society, which started on the eastern shore. It becomes much more cost-effective to collect research data through the harvesters themselves, to involve them in monitoring and research. You begin to get better-quality data, which reduces the need for DFO to do alternative data collection activities.

So I think we're talking joint management here, where the two nations work together. There's not a lot of trust in the ability of the government, not just in Canada but also internationally, I think, to manage fishery resources on their own. It requires the input and involvement of the people. That's what we're talking about.

Mr. John Cummins: I couldn't agree more. I think that is the issue. At times fishermen get “meeting-ed” to death with the department—

Mr. Chris Milley: We're not just talking meetings.

Mr. John Cummins: I mean as part of an active management system.

The fact is, the court decision underlined the fact that the minister still had ultimate responsibility for protection of the resource. That's still his responsibility. To do that, of course, he needs that scientific backup, and I presume that would mean departmental backup.

I still think what you're talking about is the Government of Canada funding a parallel management system. I don't see how you can get around that.

Mr. Chris Milley: I don't think of co-management as being parallel.

Mr. John Cummins: Well, it would be exclusive of one another and then—

Mr. Chris Milley: I think what it's doing is putting in place a system where that responsibility is being met, because I don't think the responsibility is being met today, and I think a lot fishermen in Atlantic Canada would agree.

The Chair: We'll move on to Mr. Stoffer.

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Thanks, Mr. Chairman, and thanks, Mr. Milley, for your presentation today.

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You said that some non-native fishermen would be willing to give up individual traps by about 25 to accommodate the new Mi'kmaq fishermen in the fishery but make room for 64 Mi'kmaq fishermen without displacing anyone. If the season is opening in April, how many of those 64 Mi'kmaq fishermen, for example, would be fully trained and qualified to become lobster fishermen? As you know, you can't just become a fisherman overnight. It takes a long time to understand everything.

Mr. Chris Milley: We have something in place right now in Acadia, which is probably the one community that is going to have the most involvement this winter. There are 16 fishermen who will be involved. Some of them will actually have extra crew with them because the vessels are about 30 feet. These are people who have some familiarity with the fishery. They're working closely with existing commercial fishermen, identifying the areas where they can fish that are not going to be barren ground. At the same time, it is not going to be putting anybody out.

We need them out there working now to get the experience. Also, in the past we've run training programs at the Pictou school for fisheries. We had 13 people through that get their fishing master limited certificate. We would like to see that kind of training continue, but people have to have the sea time in order to get certification. So they have to get out on the water either as crew with existing trained people or in small-scale operations very close to shore where they don't need the training, like a 19-foot skiff.

Mr. Peter Stoffer: What we've heard from a lot of other presentations is there's a willingness to cooperate on both sides.

Mr. Chris Milley: Yes.

Mr. Peter Stoffer: Mr. Wayne Spinney said yesterday he himself has donated a lot of gear and time and a lot of effort in order to assist aboriginal fishermen into the fishery. Is that happening throughout the province? Are you getting that feel?

Mr. Chris Milley: It's beginning to happen. I think it was most pronounced in southwest Nova because of the Yarmouth protest; things moved very quickly there. Dialogue is going on in other parts of the province as well, such as Cape Breton.

Mr. Peter Stoffer: My last question for you is along the lines my colleague Mr. Cummins has asked about the co-management side and the funding for that. The overall responsibility and the one final organization that has to lay down the rules or the laws in this regard right now is DFO. Would you see a role for DFO in having the final say if there is a disagreement, say, in the co-management practice or the enforcement practice? We've heard of the native guardians and DFO enforcement officers. Obviously from your presentation, you would like to see them work together as part of the co-management process. Who, in your opinion, would have the ultimate final say in any kind of co-management process?

Mr. Chris Milley: If you look at it internationally in co-management systems that have been established, it's not a question of having the responsibility rest with one, it's a question of accountability. Both sides are accountable, but they're accountable for different parts of the management process. That's what we have to have the dialogue on.

Mr. Peter Stoffer: Thank you.

The Chair: I would like to follow up if I could, Mr. Milley, on this co-management idea as well, both on John's and Peter's points. Do you envisage co-management to be in all the native communities that are affected here by the Marshall decision? Would they each manage their own sphere with the overall authority being DFO? How do you envisage this co-management working?

Mr. Chris Milley: It's a bit premature for me to answer that, but what I would offer as my own personal view would be first looking at traditional management systems that have existed in the Mi'kmaq Nation, the districts, where the communities in that area work together to put the management plans together for that area—I'm not implying adjacency is an issue of vote access, it's an issue of management responsibility—then up through the Mi'kmaq Nation at the national level, dealing with the Government of Canada on a nation-to-nation basis. So the processes are building from the community to the district to the nation, and then dealing with the Government of Canada for any negotiations or agreements that would take place, but at that level.

The Chair: So you would have a two-tier system or a multi-tier system?

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Mr. Chris Milley: I wouldn't say it's a tier; I'd say it's a process. If you work with individual communities in one area, they share resources. So you want them to work together so that they can work out those arrangements. Those communities would not necessarily be negotiating bilateral agreements, say, but those agreements would take place, because what affects one community affects another community. Through the AFS program, DFO has always divided communities from each other. I think that undermines effective management. Some of the issues in St. Mary's Bay, for example, where one community had an agreement, another community didn't, and one was going after it, if they all work together and work out the differences and come up with a common position, it makes it much easier.

The Chair: But a common position would have to fit into the overall context of policy, and at the end of the day, the minister has the ultimate responsibility.

Mr. Chris Milley: Responsibility or accountability? That is where I'm having a problem.

The Chair: Both.

Mr. Chris Milley: Yes. But the ministers aren't accountable. There are bad decisions. No one was held accountable for the northern cod. No one was really held accountable for Pacific salmon. I think that's something where the accountability is shared with harvesters and other resource industries that affect habitat. We have to start to deal with this at the people level.

The Chair: In the second paragraph in your document you say:

It will require DFO buy-outs and retirement of some existing licenses, and in other cases, such as developing species, it may require priority access.

What species are you talking about, and what do you mean by “priority access”?

Mr. Chris Milley: I'm talking about things like the whelk fishery and the billfish fishery, things where they're going through what they call a “developing species advisory board”. Ocean quahog, for example, is another one. In fact, off St. Mary's Bay, the Mi'Kmaq Fish and Wildlife Commission has been awarded or allocated the quota there, but because it's a dredge fishery we've chosen not to implement it.

There are species that are not economically targeted at this point in time, but they offer potential—Jonah crab, rock crab, for example. If there's opportunity for new fisheries like that, then maybe that's where we should channel some of the Mi'kmaq effort, rather than in areas like other existing fisheries.

The Chair: Thank you, Mr. Milley. There are no further questions.

The next witness is from Acadian Fish Processors, Richard D'Entremont. Welcome, Richard.

Mr. Richard D'Entremont (President and General Manager, Acadian Fish Processors): I don't have anything written down, but I'm here to speak from my personal experience. I'm from West Pubnico, southwest Nova Scotia, Yarmouth County. I, my father, and grandfathers have been in the fish business all our lives.

I've talked to a lot of my friends about what they would like me to say to this committee. First, I'd like to thank you for the opportunity to be able to talk to you people. If you want to go back far enough... I really don't want to go back that far. I think it hurts everybody when you go too far back. I like to look at the future for a change, be somebody talking about the future.

As you know, our people were what I guess you could call “ethnically cleansed”, if you want. Their houses were burnt down. The women were put on some boats, the men on others, and kids on others, and they never saw each other again. Most of our people lived in the Annapolis Valley and places like that. They were farmers, and a few were fishermen. A few of the Acadians came back to Nova Scotia, and they shoved them onto the end of the rocks in Pubnico, Shag Harbour, and Yarmouth and everywhere else, and said do the best you can.

Obviously they're hard-working people, and we've done—

[Editor'Note: Inaudible]

Mr. Yvan Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok, BQ): —

Mr. Richard D'Entremont: Yes, all along.

We've done very well. We've gone through some hardship, and we're still going through hard times in quotas.

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I can remember in the fishery in the late 1960s and early 1970s, when I started lobster fishing, there were at least ten fishermen who quit because they couldn't make a go of it. At that time, you could buy a licence for nothing, $25 or $50. It was our understanding that anybody could get in, and so could the natives.

Personally, I don't know any natives. In West Pubnico, we don't. I have nothing against natives. We're just trying to understand what's taking place.

After hearing the Marshall case, which was an eel case, we presume, from what we followed of it, 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.

Watching TV and watching the news, we were called “others”. We pay taxes. We thought we were doing something good. It made us start to think, are we in the right business? What are we anyway?

What it does, too, is make people in my village hate native people they don't even know, just because of moves like this. I've been talking to a lot of people in my area. As you know, we're starting to work together and fish together with the Acadian band in Yarmouth. Some of the local fishermen are bringing traps to them. So I don't think it's a problem so much between the locals; it seems to be that everybody wants to get on the bandwagon to give the country away. I don't know why. I don't think you can put people into a fishery overnight. You have to take time and do it right.

The native people have pride, just like the Acadians have. Acadians are very proud people. In West Pubnico, we have houses that are 200 years old. So we've been there for a while, and we have an Acadian village being built. We welcome some of the native fishermen who want to go fishing, but with the same regulations, the same season.

I disagree with the gentleman who spoke before me, about having two systems. You can't have a double system. That's the problem we have in Canada: we have too many double or triple systems. Everybody has different rights and different this and that. I guess if you're French and you live in Quebec, you want to separate. We're Frenchmen, almost 50%. We are French in southwest Nova Scotia. We do not want to separate from Canada. We want to be called Canadians and be recognized as Canadian taxpayers and live together. I'm sure we can work and live together with the natives we have in our area.

I just hope that through all this and all the people meeting in Ottawa, something is not done so that the natives and non-natives start fighting each other, because there's no need for that. We have always got along. The French got along really well with the Mi'kmaq in the past, and I think there are ways to get around this without two management systems, two this and two that. That's why I disagree with two management systems, because you've going to have nothing but trouble in that. DFO should handle one management system, with one set of rules for everybody.

There's a buy-back in place right now in which 300 groundfish licences were bought by DFO, and it has been working very well. Actually, before the Marshall decision came out the process was already in place for buying licences. It's just that this ruling came out and nobody understood it, and now a different ruling comes out that we all have rights now. Everybody says okay, we're all right now. Who's okay here?

Even though the second ruling changed things around, we are not backing off from what we talked about in Yarmouth, that we would like to see the natives getting the commercial fishery, but with the same rules, the same regulations, and the same seasons. We're not backing off from that, so at least we should have credibility there.

We're not even sure, if we go back to the court, if this was just an eel thing to start with. But never mind that; we're still welcome.

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Do you know what I'm trying to say here? It seems like everybody who reaches the courts first... I know the judges have said many times this is only an eel case. What is it? Is it in an eel case? As I said, we are willing to do this, and we're going to do this. We've already started the process, so we can live together, so we can work together.

I have a few more things. There are a lot of things I would like to tell you, but I'm probably not going to remember them here.

We feel it's starting in the right direction when you see people bringing lobster gear to the people in Yarmouth. We have to live with these people. They have to live with us. This is only our area. I don't know anything about Burnt Church. I don't know that much about New Brunswick.

There's another thing about first nations, second nations. I think we're all a nation, one nation. And I think that's the only way it's going to work.

I think that by setting the stage in Yarmouth the way it worked with Diana Robinson it was a start in the right direction for all of Canada, not only the east coast. I think the west coast could learn from some of the things that are happening here. I see it as a step in the right direction. It would be bad if we keep going on with the old stuff and not move on into the future. Just get something going. There are buybacks. There's money out there.

As far as fisheries that are not on the season that would be on the quota are concerned, if some of the natives want to get into it, and the government feels they want to see some natives get into this commercial fishery also, there are quotas for sale now. You can buy quota. The government's quick to throw billions of dollars away for other things. You can buy quota for that band. You don't have to create quota or create licences. There are enough out there. There are people who are retiring every day.

Basically that's what I wanted to say.

The Chair: Thank you, Richard.

Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I appreciated Mr. D'Entremont's comments and have taken note of them. I am happy that you have made your statement and can see that it comes from the bottom of your heart. I am pleased that you would like it to be heard everywhere in Canada, that it aims at peace and that steps are being taken to achieve it. What I noted in your comments, and we heard this from elsewhere as well, is that you have raised this factor that has surprised everyone.

Early in your speech, you referred to historical matters. It is true that Canada's history is rich in its impact and that some of the events that occurred are difficult to understand. I will not go over them point by point, but what I did note was this surprise factor.

If it is true that Aboriginal people had rights, and this has been confirmed by the Court, it means that for 240 years, they did not have access to the Supreme Court to have the situation clarified. The situation might have been completely different if, instead of waiting until 1990 to bring their case before the Supreme Court, they had done so immediately after Canada was created in 1890. Then everything might have been dealt with at the time.

From the outside, we could perhaps say that Natives could have had the same access as us. There are historical events for which I have no answer. I note the communications factor. When a group thinks that it needs to make demands, there is rarely enough space for them in available communications forums for them to communicate their problems, and when the Supreme Court comes to a decision, we fall off our chairs, if you will allow me to use this expression.

I would not like to rewrite history on the basis of what has happened in Quebec. I think that we will get our opportunity to have a forum for this. There are still questions of historical perception that mean that in Quebec, Mr. Bouchard defends one point of view, whereas the federal government, or the rest of Canada, defends another point of view. But I do not think that this is the place to defend this or to rewrite history.

• 1350

I have nevertheless taken proper note of the surprise factor and of the fact that in spite of the surprise, you are prepared to hold out your hand to Natives and help them. You are therefore contributing to the solution.

That was a comment and not necessarily a question. Thank you for informing us of these things.

[English]

The Chair: Do you have any comments you want to make?

You don't need to worry, Yvan, we'll keep you in Canada. Don't worry about that.

Voices: Oh, oh.

The Chair: Mr. D'Entremont.

Mr. Yvan Bernier: Is this the right place to discuss it? I'm ready to go.

The Chair: Mr. D'Entremont, is there anything you'd like to add?

Mr. Richard D'Entremont: Yes. On this lobster issue, I feel in implementing this commercial fishery into our local band and things working so well—and I see it working well—I have a problem with the food fishery in that area. This is because I find it's a way to get some cheating going on, and also that food fishery is at the time when the lobsters are spawning. For conservation measures, that is a killer. That's the time when the eggs... That can't keep going. If we're going to get the natives into the commercial fishery in the same season we do not need that.

That's an excuse to have some renegades, whether they're native or non-native, go out there and have a right to be there. DFO's going to be chasing them with helicopters and boats forever and a day. What's happening there is you're just giving an excuse for some boats to be on the water. How do you keep track of this? You can't keep track of this.

It would be so much better if we did away with that in the areas where we have commercial fishing. At least that way there won't be any lobsters taken out of the water in the spawning time. That's a big issue. That's because the lobsters are vulnerable as hell at that time when they're moulting. The weather's so warm in the last few years that it seems it's maybe two or three times that they shell. So that fishery is killing a lot more lobsters than people realize.

The Chair: Thank you.

Mr. Cummings.

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

Thank you for your observations here today. I would especially appreciate your comments regarding the feelings of fishermen in your area about integrating natives into the fishery. At lunchtime Percy Hayne, who made a presentation here this morning, said that fishermen really didn't care who was in the boat, it was just that somebody was there and they were fishing and that's all they looked at.

They didn't look at the individual. They didn't care whether it was native or non-native, or whatever he may be. It was just that if there's a boat there, there's a boat there. The fishery's subscribed to the limit now, and you can't allow for any additions. I take it that you would support this comment.

But you do mention, and did mention here, this ongoing food fishery. During testimony this morning it was noted that illegal landings were observed and recorded by DFO in your area and yet nothing has been done. Have you any comment on the extent of that illegal activity and the extent of that food fishery that's ongoing in your area? Just how big an impact does it have? Could you be a little more specific on that for us, please?

Mr. Richard D'Entremont: I think you'll find if you speak to the people who are in St. Mary's Bay down in my area that we did have some activity in our area and it affects mostly the harbours and stuff like that. It would be very hard for us to put a number on it. But I can tell you in St. Mary's Bay the impact has to be huge. To tell you a number, DFO would probably have a better idea.

The way I understand it, DFO had been running an undercover operation before this Marshall case and they had everything down pat. They had all the numbers. They would have those numbers on what and how much illegal activity was going on in that area at that time. It would shock everybody in this room if you knew exactly how bad it was.

There were people buying truckloads and truckloads of lobsters. And these are seeded lobsters. It's the worst time in the world to be catching them in terms of conservation. And when people talk about being responsible in fishing and conservation and then on the other hand this was taking place... We can all sit here and talk and it means nothing, but the people up there you could observe and see what was going on. One gentleman up the French shore was asked twice to dig a hole with his backhoe to bury the dead lobsters because they couldn't move and sell them quick enough, because at that time the water is warm, they're biting each other, they're soft-shelled. Hundreds and hundreds of pounds they buried under the ground. This stuff has to be told. They were buried by a backhoe.

• 1355

So this is the so-called food fishery. And I'm not saying it was the natives who were doing this. I'm sure there was some involvement. What I'm trying to say is that it gives a chance for somebody to cheat, to go out there and do these things. I would much rather see a commercial fishery of the natives in Yarmouth, the Acadian Band, or Bear River, with licences, even if the government buys the licences, as long as it's the same season and the same regulations, one set of rules for all. And that's the only way it will work. I'm not making this up, believe me.

The Chair: I have to move on to Mr. Stoffer and then Mr. Muise. You have five minutes between the two of you, so keep it to two and a half.

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

Thank you, Mr. D'Entremont, for your presentation. It's always good when someone from the Pubnico area—

Mr. Richard D'Entremont: I have nothing written down. I'm shooting from experience. I've fished all my life, and that's what I know.

Mr. Peter Stoffer: I want to thank you for the committee for clarifying exactly what part of Pubnico you're from, because if I'm not mistaken, there are eight different Pubnicos in that area.

Mr. Richard D'Entremont: West.

Mr. Peter Stoffer: Very good.

I also find it quite sad that you said you don't know any aboriginal people as neighbours or whatever—

Mr. Richard D'Entremont: No, I don't.

Mr. Peter Stoffer: —but you know of them, where they live and that—

Mr. Richard D'Entremont: I see some in Yarmouth, but personally I do not know any, no.

Mr. Peter Stoffer: —and how, after the Marshall decision, you noticed that your neighbours and yourself all of a sudden had this interpretation or this perception of natives and are stereotyping them. You said you started not liking them or even hating them—

Mr. Richard D'Entremont: Never saw them.

Mr. Peter Stoffer: —and yet you didn't even know them.

Mr. Richard D'Entremont: That's the common thing, isn't it?

Mr. Peter Stoffer: So who do you think gave you that impression? Was it the media, was it the government, or was it a combination of both?

Mr. Richard D'Entremont: It's the unknown, and watching TV and wondering what's next. Are we going to lose our livelihood? Are we going to lose everything? Are our communities going to have to move again? We've been shifted before.

Mr. Peter Stoffer: Earlier today we know that the federal government, along with the provincial government and the Mi'Kmaq representatives, were in consultations long prior to the Marshall decision actually being done. Were you at all involved, or was your community at all involved, or were you even aware that these types of conversations were taking place long before Marshall?

Mr. Richard D'Entremont: I was aware that Marshall had been to court, but not the Supreme Court, and I was aware that this was taking a long time. And yes, I was concerned that our provincial people were not supposed to intervene in the decision or influence the judges and all this. So I started wondering, what is going on here? And from reading the treaty and the rights of this treaty, I don't see that the first ruling we saw come out of the court was at all what was in the treaty—the way we interpret it.

Mr. Peter Stoffer: Mr. D'Entremont, you mention that a lot of lobsters from the food fishery were being bought and sold, and you also mentioned a bunch of lobsters that were buried in the backyard by someone with a backhoe, so I think it would be very helpful for this committee if you can give us written documentation—not now, but when you get an opportunity to send it to us—so that we can understand, first of all, who is buying the lobsters. As you said, truckloads and truckloads were going out.

Mr. Richard D'Entremont: Yes.

Mr. Peter Stoffer: Do you know who was buying them?

And secondly, in terms of this incident of the lobsters being buried, I would personally like to know exactly where that was. If it's at all possible to give that information to the committee, when you find it convenient, I'd really appreciate it.

Thank you, Mr. Chair.

The Chair: Mr. Muise.

Mr. Mark Muise: Thank you, Mr. Chairman.

[Translation]

Thank you for having come, particularly as I know that you are busy at this time of the year and are preparing for the fishery.

I would like to raise another matter and talk about negotiator James MacKenzie.

[English]

Mr. Richard D'Entremont: I'm sorry, de quoi?

[Translation]

Mr. Mark Muise: Of James MacKenzie, the negotiator who came to meet you.

[English]

Mr. Richard D'Entremont: James MacKenzie, yes.

• 1400

[Translation]

Mr. Mark Muise: Participation was not too good. Seven weeks later, we were informed of the terms of his assignment, which was to negotiate with Aboriginals and those people grouped under the heading "other fishers". I am afraid that this division may be prejudicial to one party or the other. I would like to hear your point of view on this.

[English]

Mr. Richard D'Entremont: That was part of feeling we've been dumped as commercial, hard-working fishermen who have been in this business for hundreds and hundreds of years. All of a sudden we're “others”; we don't have rights, we're dumped. You can imagine anybody having a job and working hard to build a business and all of a sudden somebody comes along and says, “Oh, by the way, we're going to take your business; you're just an other.”

It didn't sound right, watching the TV and watching Mr. Dhaliwal talk about treaty rights. All we heard is you have to do what the treaty says. To me, what came out in the ruling and in the treaties was not the same.

I would like to know why the government was so quick to give the country away. To me it was like a false belief for the natives to believe they had the country. They don't have the country, just like we don't have it. Canada is for everybody. I guess to answer your question, we were very disappointed. We were completely blown away, like—you know, what is this? I'm sure for the loggers, too, it was the same thing.

I want to talk a little bit about the natives here back into this fishery. I told you we are very proud people. The Acadians are very proud people and have everything to be proud of—not only the Acadians, but all of the people that settled around the east coast and worked hard for the fishery, and watched it go down, and there was no money. It wasn't that easy to get money to buy boats. I mean, we sailed in boats that weren't even fit to sail at times. We almost got drowned a few times. I myself, I was seasick for twenty-something years on the water, and it didn't mean anything after? All of a sudden, we were just... poof, you know?

I think the natives would be also as proud as we are of our heritage, and to bring them into the fishery so they can work under the one system, as brothers, or as friends—why wouldn't it work?

Don't make a double system; that will never work. You will have nothing but trouble for the rest of our lives. And I might add, whatever is done this time, for god's sake, let's do it so it's not revisited again ten years from now, five years from now, where somebody else is doing a ruling or something. Let's get something down pat so we know what we have, so we know what the investments are, where we stand.

The Chair: Thank you very much, Mr. D'Entremont. We appreciate your information very much. Thank you.

Mr. Richard D'Entremont: Thank you very much.

The Chair: The next and last group will be the Atlantic Policy Congress. There are several representatives—John Paul, Paul Prosper, Doug Brown, and maybe some others, I'm not sure. Welcome.

We are, as I guess you are already aware, under a fairly strict time limit. We have to be on the way to the airport around three o'clock.

Mr. Mark Muise: But we know, Mr. Chairman, you are strict with your time.

The Chair: So if we could have maybe an overview of your written submission, then we'll go to questions, and we'll continue until three o'clock. Welcome.

Mr. John G. Paul (Treaty Mediator, Atlantic Policy Congress): I'll start.

The Chair: Okay, Mr. Paul.

Mr. John Paul: As soon as I get some water.

The Chair: I've been trying that water; it's not fit to drink.

Mr. Peter Stoffer: You're not knocking Nova Scotia water?

The Chair: I am indeed. We should bring over some Prince Edward Island water.

Mr. Peter Stoffer: It's some of the finest water kicking.

Mr. Mark Muise: It is kicking.

The Chair: Okay, Mr. Paul. Welcome.

• 1405

Mr. John Paul: First I'd like to thank the committee for giving us this time. I also want to advise you that we will have other chiefs and others presenting both in Moncton and in the Gaspé. I spoke to the chiefs in the Gaspé today, and they will be presenting a paper in Gaspé as well. I know there are a number of people that will be in the presentation as well in Moncton tomorrow. We're trying to encourage as many as we can to come to the hearings so you can hear a range of views and really where we're coming from with this whole scenario.

The Chair: Thank you.

Mr. John Paul: The Atlantic Policy Congress of First Nations Chiefs Secretariat is a policy organization set up by the chiefs to review and analyse and provide alternatives to policies made by governments for our 36 first nations and our three tribal nations, from Atlantic Canada, eastern Quebec, and one tribe that straddles into the U.S., the Passamaquoddy.

The Mi'kmaq, Maliseet and Passamaquoddy people have existed here longer than Canada itself. The treaties with the predecessor governments must be honoured by the crown, both federal and provincial governments. The Marshall Supreme Court of Canada decision has provided a ray of hope and opportunity to our people. Hope cannot be limited or unreasonably restricted. Today all our communities have a serious housing backlog, high social dependency rates, little or no economic development. The financial pressures that affect each individual first nation have not been addressed, in spite of growing needs and growing populations.

A couple of years ago, you may remember, the Royal Commission on Aboriginal Peoples tabled its report with over 440 recommendations to help move our tribes, all our tribes across Canada, from dependency to self-determination. You and your fellow politicians should look to see what has been done by DFO as a federal department, and others, to implement or work on the many recommendations presented. The report is a tool kit, as it's described by the authors, providing many useful ideas that could help in the context of fisheries. Canada's response, Canada's aboriginal action plan, also lays out an agenda of partnership, nation-to-nation relationship, and various other approaches to assist our people and communities in becoming more self-reliant.

In the past weeks, our leaders, our communities, and our fish harvesters have struggled to exercise this reaffirmed right detailed in the Marshall decision, and we've tried to work to organize ourselves in a way that becomes workable. We are working on establishing an open and transparent process of dialogue and facilitation to allow all Mi'kmaq, Maliseet and Passamaquoddy people direct and immediate access to the Atlantic fishery and natural resource harvesting. We also want to strive to development a long-term, treaty-based, fishery resource harvest strategy to allow meaningful reductions in dependence, an increase in wealth equitability for all our first nations communities. Establishment of a treaty-based process would allow full community consultation and input by all our members to help develop consensus on treaty and jurisdictional practices, harvesting and management regime.

Our fishermen have acted to gain real benefits before external government uses its power to narrow or restrict our rights. Our leaders have been willing to establish dialogue with Canada on the implications of Marshall, but with limited success. To date a mindset to act in the public interest has overridden their efforts to truly implement Marshall in a timely manner. The public interest is something that is beyond our communities in a lot of cases.

• 1410

We 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. This right includes a moderate living. A living is not social assistance or welfare; it's an income equal to other fishermen. Fishermen in large commercial interests in the Atlantic fishery clearly know that profit is a key element in the use of the resource. Clearwater, National Sea, and other commercial interests must allow our people to access in a timely, orderly manner.

In the interim, we want all requests by first nations submitted and addressed. Additionally, we need a process to develop short-term and long-term capacity in our communities. Capacity means training, capital resources, access, and the creation of scientific expertise. It involves institutional development in our communities, as well as provincially and at the tribal level.

A key challenge we face is this whole area of capacity and building that capacity together with our people, for the benefit of our people. A challenge DFO faces is fishermen displacement, to allow access for our tribes to fisheries that we hear from everybody are fully subscribed.

Some of our first nations have begun dialogue with fishermen—and Chris Milley talked about that earlier. That occurred pre-Marshall. It's our view that dialogue and finding solutions to these challenges are the items we want to pursue, so we can continue to co-exist, as laid out in the treaties of peace and friendship.

Now I'll turn it over to Paul Prosper.

Mr. Paul Prosper (Legal Counsel, Atlantic Policy Congress): Thanks, John.

Dear members, good afternoon. My name is Paul Prosper. I am here with Doug Brown to provide you with some comments on behalf of the Nova Scotia Assembly of Mi'kmaq Chiefs.

To begin, the assembly would like to inform committee members that it represents 13 Mi'kmaq first nation bands within the province of Nova Scotia. The assembly, through its affiliate first nation bands, represents all status Mi'kmaq people within the province of Nova Scotia.

The assembly believes that the laws, as administered and applied within Canada, provide only one narrow perspective in which Mi'kmaq, aboriginal and treaty rights can be considered and addressed. As noted by Mick Dodson, the aboriginal social justice commissioner, on the second anniversary of the Native Title Act in Australia:

...we all need to understand that native title is not solely a legal issue. Native title is a question about the kind of community we are and the maturity with which we view our history. The debate may have begun in the courts but the questions it raises cannot be answered purely by legal decisions.

The assembly believes the recent developments surrounding the Marshall decision have provided some insight to the Mi'kmaq on the maturity in which Canadians view their history and the kind of community Canada is. In Canada, these words have been placed in a similar fashion within the report of the Royal Commission on Aboriginal Peoples. In its highlights, entitled “People to People, Nation to Nation,” the commission provides:

Canada is a test case for a grand notion—the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences. The Story of Canada is a story of many such peoples, trying and failing and trying again, to live in peace and harmony.

• 1415

Despite the Supreme Court of Canada's recognition of the Mi'kmaq 1752 treaty in 1985, a treaty which the court has said is as of much force and effect today as it was at the time it was concluded, it has taken approximately 240 years for this country to recognize that peace and harmony envisioned within our treaties.

For example, in the recent Supreme Court decision of Marshall, the court provides the following comments on the issue of trade, considered within the 1760 and 1761 treaties:

It is apparent that the British saw the Mi'kmaq trade issue in terms of peace... Peace was bound up with the ability of the Mi'kmaq to sustain themselves economically. Starvation breeds discontentment. The British certainly did not want the Mi'kmaw to become an unnecessary drain on the public purse of the colony of Nova Scotia... To avoid such a result, it became necessary to protect the traditional Mi'kmaq economy, including hunting, gathering and fishing.

The Chair: If I could just interrupt you for a second, Mr. Prosper, we are going to rapidly run out of time. I know all the committee members have read the decision several times, so perhaps you could highlight it to save a little time. I believe Mr. Brown also wants to add a few comments.

Mr. Paul Prosper: Okay, your point is well taken. I can be brief then.

There is one thing I want to mention, and it's something that is not contained within the Marshall decision. You must remember that the Marshall decision rested largely upon the fact that historical documents were entered into evidence and, in turn, evidence was given by expert witnesses with respect to the nature of those documents. Mi'kmaq oral history on those treaties were not entered into as evidence, within the Marshall decision.

My point of grief if that in order for this committee to present their recommendations to Parliament, they must first take into account Mi'kmaq oral history. It is there and we are waiting. The use of oral history has been reinforced—I won't get into the case law—within Delgamuukw and other treaty cases as well.

Another important factor to take note of is the treaty relationship. In other words, it's not only important to focus on the document, the text of the treaty and the surrounding documents as they pertain to the treaty negotiations; it's also important to take into consideration the treaty relationship that exists between the federal government and Mi'kmaq people. It is a fiduciary relationship and a legal obligation that is owed by the crown.

In closing, I'd like to reference a comment made by the court in Marshall. It speaks to the honour of the crown. Justice Binnie in Marshall provides:

This appeal should be allowed because 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, as best the content of those treaty promises can now be ascertained.

• 1420

Those are my comments in brief. Thank you.

The Chair: Mr. Brown, do you want to add some comments as well? You are referred to in the last paragraph.

Mr. Doug Brown (Legal Counsel, Atlantic Policy Congress): Thank you. I'll try to begin where Mr. Prosper left off.

He mentioned that the honour of the crown is at stake when it deals with aboriginal peoples. I want to highlight that prior to 1982 infringements on aboriginal rights occurred frequently, through provincial actions, provincial legislation, government actions, and federal legislation. The infringements occurred and the courts had no recourse but to bow to legislative supremacy.

After the Constitution was amended in 1982 such that it included section 35, courts then had a way to assess the infringements on aboriginal rights. In that assessment, courts must consider the integrity of the crown. It's a fiduciary obligation that arises between the crown and the constitutional rights of the aboriginal peoples of Canada. That's a serious commitment, which began in the treaty relationship in the seventeenth century, the eighteenth century.

These discussions have to recognize this and have to be conducted within that legal context. I noted that one of the speakers—I don't recall his name—mentioned that he wouldn't want to see a double system. The fact of the matter is that the double system has existed and still exists. The double system occurred with the arrival of the British settlers. It began with a treaty relationship. That was a double system. There were two different peoples involved and the treaty was there as the intermediary between those two peoples, those two nations. The treaty relationship was what governed the relationship. There were two different systems involved.

That, unfortunately, was replaced with two different systems, one of dependence, one of being ruled and governed by the Indian Act, and we're still under that system. There are still two different systems involved. That is still a fact of life today and that's a fact of life that Mi'kmaq see: this treaty can address the inequality that currently exists.

When I talk about inequality in the two different systems, I'm not talking about equality as a diplomatic concept that can be tossed around and used in a manner that is more for diplomatic uses. When the Mi'kmaq think of equality, they think of it in very real, practical terms. They think of reality. There's nothing equal about what exists in fact today, where the welfare dependency rate is so much higher than the Canadian national average rate, and all the statistics—the health, the suicides—Mr. Paul mentioned earlier. There's nothing equal about that.

The Mi'kmaq do seek equality. If inequality in law happens to be the vehicle by which we attain equality in fact, well, then, that is what section 35 of the Constitution is there for. I think the framers of that section were indeed quite cognizant that this was the purpose for which it was implemented.

There are a couple of legal questions that arose from the Marshall decision, along with some confusion surrounding how negotiations would occur and how the right was misunderstood to be an unregulated right.

The fact of the matter is, when the Mi'kmaq made the presentation to the Supreme Court, it was very clear that the right was to be regulated. There was no pretence that the right was an unregulated right; the point that the right was regulated was made up front by Mr. Wildsmith on behalf of the Mi'kmaq. How it became misconstrued to be an unrestricted, unregulated right and then further misconstrued to be a free-for-all for the Mi'kmaqs to go and rape the seas of all the resources is probably a function of the media, but I won't go there.

• 1425

Anyway, the justification standard that needs to be addressed in the regulation of the Mi'kmaq right is based on a principled, bilateral approach and on consultations, good faith negotiations, and informed consent. Beneath all this is the spirit of peace and friendship that was endorsed in the treaties. Hopefully, that kind of context, that kind of spirit, would lead to modern-day agreements between the first nations, between the provincial and federal governments, on how to best utilize the resources for everyone's benefit, for the benefit of the public at large as well as the Mi'kmaq.

I realize we're very limited in regard to time. I have been rattling off my words fairly quickly to accommodate that.

Right now the Mi'kmaq are in a position where injustice is routinely meted out, just in the procedure. What I mean by this is that a Mi'kmaq fisherman can have his boat seized even though he has a constitutional right to attain food for himself and his family. If he has his boat seized he's basically put in a situation, without even having been proved guilty, whereby he can fall into debt, whereby he's not able to secure food for himself and his family. Those things occur during the slow process of the wheels of justice. So for many months, some aboriginal people end up with no boat and no way of securing food for themselves and their families—and this is all prior to having been proven guilty in court.

I think that's one of the issues that has to be addressed. This procedural injustice can't keep continuing. Somehow the parties involved have to sit down and figure out how this procedural injustice can be addressed.

Lastly, I would say that co-management of the resources is a very logical step towards the reconciliation of the various interests. It best reflects the cooperation and mutual respect that should be the underpinning principles beneath the relationship.

The Chair: Thank you very much.

Mr. Cummins.

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

Thank you for your presentation this afternoon.

It's interesting that you mentioned the notion of co-management, because I had a question about it, about what appears to be a somewhat difficult issue between your brief and the statement of the court.

The court states:

The paramount regulatory objective is conservation... This responsibility is placed squarely on the Minister and not on the aboriginal or non-aboriginal users of the resource.

It goes on to say:

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.

On page 3 of Mr. Paul's brief, he states:

We do have a long-term vision of assuming control over the Atlantic fishery but some people to date doubt this is possible.

Between your comment and the comment in the court, how do you square that? It seems to me that there's a bit of a conflict there. Or am I reading something into your comments that isn't there?

Mr. John Paul: I think you're reading something more into it.

Mr. John Cummins: What do you mean by “assuming control over the Atlantic fishery”? How does that jibe with the ultimate responsibility the court says the minister has?

Mr. John Paul: Well, I'm not a lawyer—

Mr. John Cummins: I'm not either.

Mr. John Paul: I think what we're looking at is like what's being mentioned by my colleagues here: a co-management regime. Even in court we have presented our statement that there has to be some regulatory regime. I think it's how we work it out nation to nation, as two nations or three or four nations.

• 1430

Mr. Paul Prosper: If I can just add, John, the minister has the ultimate responsibility, and that is not just with regard to the non-native commercial fishermen, for example, but also with regard to the recognition of the treaty interest that is protected within the constitutional framework of this country. That is a duty he has to uphold.

Mr. John Cummins: You also state in your document that a goal to acquire access and control of 50% of the Atlantic fisheries seems to be idealistic, but it is a reality. Is that a clear statement, then, of what you feel would be a legitimate proportion or share?

Mr. John Paul: I think that's part of the dialogue we have to enter into nation to nation. That's the dialogue that needs to start in terms of coming up with what it is.

Mr. John Cummins: In your brief you mentioned Mi'kmaq oral history and the reference that didn't really receive consideration when the court addressed the Marshall case. Is it possible to elaborate briefly on the conflict for the committee?

Mr. Paul Prosper: Sure, Mr. Cummins.

What you read within the Marshall decision is that reference is being made to oral history surrounding documentation outside of the treaty text. These were referred to in the form of oral representations, which were more favourable toward the Mi'kmaq than what was reflected within the treaty text. Therefore, this is where you get the honour of the crown kicking in and basically the court saying it would be unconscionable for the crown to rely, for example, on a negative covenant trade clause within a treaty while completely ignoring more favourable terms within the negotiations, the oral representations leading up to the treaty document. We must not forget that the drafters of the treaty document were non-native, and that is in keeping with the honour of the crown to take that into account.

When I mention oral history, it is in the form of an oral tradition. It is something that by nature is not documented. It is outside of what people consider to be within the written text, something you wouldn't find within the historical documentation. What the courts have done, particularly through Delgamuukw, is placed the oral history on an equal footing with the documentary record.

For the most part, in previous cases first nations people really had a hard go in terms of using oral evidence to prove their aboriginal or treaty rights. For example, at the trial level in Delgamuukw what you would have is somebody from the Gitxsan Nation telling stories about their particular first nation band. These stories were carried from generation to generation. At times this evidence was deemed relevant, but in fact the weight and the credibility attributed to that evidence was negligible. That goes back to rules of evidence and things like that, the hearsay rule.

Mr. John Cummins: If I could just comment, Mr. Chairman—

The Chair: Do it quickly, John.

Mr. John Cummins: —my understanding is that in the Delgamuukw case Justice McEachern took oral evidence for 40 or 50 days, and it wasn't that he didn't take the oral evidence, but that he found there was conflict in it that he couldn't reconcile without reference to historical documentation. I think that was the problem. When the court looked at it, they said you didn't take oral evidence into consideration. I think if Justice McEachern were here he would say he did, but he couldn't come to a definitive answer because of the conflict in the oral history.

• 1435

The Chair: Early on in our hearings we heard from Dr. Patterson, I believe it was, who said that there maybe needs to be an improvement in the process relative to oral history, etc. That would be interesting evidence for you to read, Mr. Prosper, in terms of what he had to say about the court process itself and how you'd get at what actually was happening at the time.

Anyway, perhaps you could answer John, and then we'll move on.

Mr. Paul Prosper: I'll be brief.

Basically, what you get from the Supreme Court and the evidence within the record, which was considerable, 367 days, I believe—

Mr. John Cummins: Yes, but I think the oral evidence portion was about—

Mr. John Prosper: It was 50-some-odd days. McEachern's tendency to use the written text as opposed to what he considered reliable within the oral record was seen as somewhat of a bias.

The Chair: I'm going to have to move on to the next questioner. I don't want to spend too much time on previous history. I want to know what we're going to do from here on relative to the Marshall decision.

Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I am happy that we are closing the door on this or putting historical issues on the back burner, although it is always necessary to know where we come from to know where we are going. Questions of historical perspective will always be important.

I would like to thank the witnesses and tell them that I am a member of Parliament from the Gaspé region of Quebec. I therefore have contacts with fishermen and was pleased to learn that the Micmac representative from Gaspé would be coming to meet us on Saturday. I am pleased to see you here today because I know that it is not easy to come from a long way off and publicly state the claims of the people you are representing. You sometimes feel isolated because you know that there is a group behind you and that it may not necessarily be possible to express what you want, but rather the views of those you are representing. From that standpoint, I too sometimes feel somewhat isolated.

I am pleased that the Standing Committee on Fisheries will be travelling to the Maritimes and Quebec, because it will make it possible for the Aboriginal nations to state their claims. We do not pretend that we can solve everything here today, but these hearings will make it possible for fishing communities and for the population in general to become aware of what is going on. While there may have been historical mistakes in the past, and while the Court may tell us that it is necessary to go in such and such a direction, I believe that the time is ripe to take a step and get the negotiations under way. That is my preamble.

Now, in order to be able to understand the situation a little better, I will ask you a few questions. I am not trying to ask trick questions, but given that there is a recorded history and that we need to allow for some oral history as well, I will ask you to comment on the following.

One of the stated objectives on page 2 of the document submitted by Mr. Paul, still with a view to moving your fisheries claims forward, it is stated that you are seeking to establish and open up a process of transparent dialogue to facilitate direct and immediate access for the Micmac, Malecite and Passamaquoddy peoples to the fishery.

I would like you to comment on the immediacy of this access, because we know that it will not be easy. On page 3 of the same document, it is also mentioned that you need both short-term and long-term help, as well as support in terms of training and resources. It is difficult for me to reconcile training with the immediacy of the situation. Could you comment on that?

• 1440

My second question has to do with the definition of the concept of "moderate livelihood", which will be the cornerstone of our work over the next few years. We will have to begin as soon as possible. On the second last line of page 3, you defined the concept as follows:

[English]

A living is not welfare/social assistance/it is an income equal to other fishermen.

[Translation]

In French, I would translate your definition as "un revenu égal à celui de tout autre pêcheur". Is that the essence of the definition? How can this be reconciled? If the Court had said that the purpose of the fishery ought not to be the accumulation of property and that what was being considered was the lot of our best fishers who were able to accumulate property, then I think that we would see that the average fisher is poor and that what will be mutually shared is precisely this poverty.

These are the two points on which I would like to hear your comments.

[English]

The Chair: Okay, who wants to start? Mr. Paul.

Mr. John Paul: Regarding immediate access, there are a number of seasons starting right now for which communities had submissions into DFO for some time asking for access for whatever they're licensed for. It's basically to get DFO to deal with them now, because there are seasons coming now. There are seasons opening this week, and there are requests from communities for licences. We want DFO to deal with them, not next year, but now.

In terms of moderate living, I think that's something you have to look at in the context of our values and our communities' values. It's something we are trying to enter into dialogue about with our own communities, to try to figure out what it is and to look at it.

The benchmark we look at is what exactly are fishers making? The range of fisher incomes is from very low to a million dollars. So there's a range in fisher income that exists right now.

Mr. Yvan Bernier: That's the gross revenue.

Mr. John Paul: Or it's below the poverty line in some cases. I think that's something our communities and leaders will have to focus their attention on, and really try to define it within our own values and our own context.

The Chair: Does anyone else have anything they want to add? I know there was quite a series of questions there—

Mr. Mark Muise: They were short, though.

The Chair: As is Mr. Bernier's way.

Mr. Paul Prosper: I just want to reaffirm what John previously mentioned. To define “moderate livelihood” within the context of the fishery you have to start somewhere, and it's just an issue, in my opinion, of comparing apples with apples. If Mi'kmaq people are going out there in an attempt to make a moderate livelihood, you look at the field and see who's there, then you take that into account. I'm not saying it's going to be the be-all and end-all of where we end up, but at least it's a reasonable point where we can begin.

The Chair: We might get back to you, Mr. Bernier.

Mr. Stoffer.

Mr. Peter Stoffer: Thank you very much, Mr. Chairman, and I wish to thank the three gentlemen for their presentations.

I have a couple of concerns. As you know, we've just heard Mr. D'Entremont's presentation in which he talked about the perception of anger and hatred toward native people. He also admitted he didn't know any native people, so how did he develop this perception?

One of the things you say here—and I don't mean any disrespect whatsoever—is that you have a goal to acquire or access control of 50% of the Atlantic fishery. Now, I understand in mediation and talks that's just the target, it's nothing set in stone. But it's not very helpful to put that kind of figure in a written presentation. The reason I say that is that we've had other presentations that have said 5% would be enough for the Mi'kmaq people. So either side... it's not being very cooperative.

What we need here is dialogue in which we can cooperate and not have high expectations of having 50% of the fishery. That would really prevent a lot of open dialogue and negotiation from happening. I just recommend that you don't use that figure, that you just say you wish to access some control over the fishery, but that the percentages can be worked out in the dialogue. I think it would be more helpful in that regard.

Mr. Prosper, you said that you represent all status Mi'kmaq people.

Mr. Paul Prosper: Yes.

• 1445

Mr. Peter Stoffer: Do you believe that the Marshall decision applies to non-status aboriginals—yes or no?

Mr. Paul Prosper: Right now, I don't think it does apply to non-status aboriginal people.

Mr. Peter Stoffer: Very good, because you said earlier to a question of Mr. Bernier's that you liked the aspect of comparing apples to apples.

Mr. Paul Prosper: Yes.

Mr. Peter Stoffer: We had the Native Council of Nova Scotia come here, and right on here it refers to people residing off reserve and those throughout the traditional Mi'kmaq territory.

Now, when the treaties were signed there were no reserves. We've had some very good lawyers come up and say they didn't know the answer to whether or not the decision applies to status or non-status aboriginals. My problem is—I can't get this out of the way, and I know I've asked this question ad nauseam to everybody you know—you keep referring to the 1760 treaty, and there were no reserves or non-status or status natives at that time. There were none. So why, in your interpretation, for people of your own ancestry, would you not be inclusive? I know the Indian Act. I know all about that. Why would you not be more inclusive of the non-status aboriginals in the new development of the fishery of the future?

Mr. Paul Prosper: That's an excellent question. I can see how you've been asking it ad nauseam, and some people have been deflecting it. I will try to answer your question.

I just want to clarify what I said to you previously. Today—now—I say Marshall does not apply to non-status Mi'kmaq Indians; however, I do not think that sometime down the road we couldn't figure out a way to be more inclusive. Who is a treaty beneficiary in 1760, as opposed to who is a treaty beneficiary here, now, in 1999? It's something we have to engage in, and it's an issue that only the Mi'kmaq people can resolve.

For example, the federal government cannot tell the Mi'kmaq people who is and who is not a Mi'kmaq person. It is the Mi'kmaq people that must determine who is a Mi'kmaq person. That is going to take considerable dialogue. What I'm suggesting—and it's a clarifying point on my previous answer—is that we have to start from somewhere. We start with something we're not quite sure of—and believe me, a lot of people aren't very sure of who is and who is not a Mi'kmaq person. I feel the same way. But we have to start a definite line for better or for worse, and from there I would say we can attempt to move forward to be more inclusive.

Mr. Peter Stoffer: We know now that in March of this year there was a tripartite committee of aboriginal people, the province, and the federal government working together to discuss a post-Marshall concern in the event, or in the unlikely event—whichever way you want to look at it—that the court ruled in Donald Marshall's favour. Were any of you part of that tripartite committee when it happened in March? I know that Bernd Christmas was there, but were any of you part of those negotiations at that time?

Mr. John Paul: No.

Mr. Paul Prosper: Do you mean within the tripartite forum—

Mr. Peter Stoffer: Yes.

Mr. Paul Prosper: —with formal meetings discussing the implications of Marshall?

Mr. Peter Stoffer: If it went the way that it did.

The Chair: This was back in March of this year.

Mr. Paul Prosper: I know a number of people, including myself on certain occasions, who have been involved in a certain dialogue on Marshall. It's very difficult to really plan for the type of decision that came down with Marshall. Decisions can take a number of different forms. Even if there were a finding in favour of Donald Marshall, or against Donald Marshall, it's very hard to anticipate which way the court is going to interpret that decision.

Mr. Peter Stoffer: I guess my other question would be whether there were any discussions with the woman from aboriginal affairs who was representing the province in that regard prior to this. We now know that she put the kibosh to any kind of pre-Marshall decision. It wasn't the DFO that did it. In fact, the DFO, we now know, was fully cooperative. And the aboriginal people were fully cooperative of setting some sort of framework in place. We understand now that she was the one, through the aboriginal affairs department of the province, who said no to any kind of arrangement.

• 1450

You must have been aware of that. If you're representing the status Mi'kmaq people, and if Bernd Christmas, who of course is part of the legal team you have, was fully aware of it, surely you must have been aware of it. If you knew this was happening, in order to offset the confusion people like Mr. D'Entremont went through, and thousands of other Nova Scotians and New Brunswickers and islanders from P.E.I., why wasn't something said beforehand in order to at least let people know this was coming and this is what you tried to do, even though you couldn't come up with a concrete plan?

Mr. Paul Prosper: With all due respect, Mr. Stoffer, why is it that the Mi'kmaq have to continuously plead to government officials—and we have been doing this for a very, very long time—to get the government to recognize basic aboriginal and treaty rights issues—

Mr. Peter Stoffer: Sir, I'm sorry to interrupt, but with all due respect back, that's exactly my point. It was the government official who said no. It wasn't the Mi'kmaq people who said no; it was the government official who said no. Knowing that she said no, did you guys do anything about that?

Mr. Paul Prosper: The substance of a number of discussions with respect to what has taken place within confidential negotiations, and various actions people take as a result of those discussions, can be any number of things.

The Chair: I hate to interrupt, Mr. Stoffer. I don't think it's going to have any relevance to where we're going to go from here, but it is a criticism of someone in the system, either a provincial official or DFO, that there wasn't better preparation.

Mr. Muise.

Mr. Mark Muise: Thank you, Mr. Chairman.

Thank you to our guests today. I've found this meeting very interesting.

I've spoken to many non-native fishermen, and I always get the sense that they recognize that natives have a right to the fishery. I remember one day we were at a meeting in Ottawa, and Bernd Christmas was saying, as you said today, that the treaties were based on peace and friendship. I listened today when you said people have to realize the types of communities we come from.

I'm saying all these things because I think negotiations can work. I compliment Chief Robinson from the Acadia Band in Yarmouth and Chief Frank Meuse from the Bear River Band, who worked with the non-natives to come to an understanding that was very much needed and shows that it can work.

But then I listen to these comments, and it's a little bit like what Peter said. When you say 50%... A lot of the tensions came about because of fear. The unknown is always pretty scary for any party. I read that again today, and I'm not passing a criticism; I'm just saying, wow, if we didn't have any resolution to this, that would be scary to hear, because with negotiation, things can come through.

We say the native community has certain rights, but the non-native community has certain rights as well. They have traditionally fished that particular species. They have invested enormous amounts of money that many times they didn't have, so they've made certain sacrifices and they've made certain commitments.

So it might not be the intent, but when you say “We have a right and we're coming through”, it gives the impression that you're just stepping in and that's how it's going to be. It puts the fear of God into people.

That's all I have to say. I'm sure you'll come back and it will help me understand.

Mr. John Paul: I guess it is about that again. It is about negotiation and it is about an ideal. RCAP talks about ideals as well, and where's that at? It had a plan. It laid out all these things in terms of where and how we could do all these things. I also recognize there is a great deal of frustration in communities. Two hundred years is a long time.

• 1455

I think that fundamentally everything is related to the relationship as described in the context of the treaty. It is government to government. And the subjects of Canada—all the people who are here—I think we have to have that dialogue with them. I know in the case of Nova Scotia there has been ongoing dialogue with all the fisher groups in terms of trying to basically improve people's understanding of us and improve their understanding of where this vision can end up.

I think in the non-aboriginal world everything is quantified. In our world, our values are different. And part of the treaty stuff goes back to those fundamental values we have as communities—to be communal, to share, to be respectful of the resource, to be respectful of people, and to be respectful of the environment we live in. I think those are fundamental foundations in terms of where culture is at, in terms of our history. I think we have to build on that strength to build a relationship today with those fishers that are there. We have to figure it out in a way that rebuilds our culture. Our culture is being destroyed. Read RCAP; it describes the way we were. I think it's really important.

I recognize that non-aboriginal people have rights. I recognize that. I think that in spite of whatever context exists, our people and all people will continue to be here and continue to live here. I think it's really bringing the relationship to this new age, to the future. Start looking at the future, how we can strengthen that relationship and really have a strong relationship between our people, the Mi'kmaq people, and everybody and really turn it around in a good way.

The Chair: Thank you, Mr. Paul. I think that was a valid explanation.

Mr. Matthews, do you have a question?

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

Thank you, gentlemen, for your presentation and your answers.

Mr. Brown, my interest was aroused when you referenced that when your people are suspected or charged with a violation their boats and gear are seized and they're not allowed to fish. Are you suggesting that they're treated differently in that situation than non-natives in the same situation?

Mr. Doug Brown: Not at all, but I am suggesting that they have a constitutional right to fish for food, and when the procedure infringes that right, it's stepping into a grey area that hasn't been addressed through consultation or negotiations. That grey area is basically what I'm suggesting has to be discussed between the parties, because if your boat and gear are seized...

I'll just use an example that a native fisherman may be accompanied by a non-native fisherman. At this early stage, where native fishermen are trying to access this resource for the first time in many years, many times non-native persons are relied upon to impart experience and knowledge in teaching the native person how to lobster fish, just how to fish, how to operate the boat, how to navigate in the waters that are very dangerous. Only skilled people ought to be teaching the Mi'kmaq how to do that. There are cases where the Mi'kmaq person is charged on the basis that he is accompanied by a non-native. That's the grey area I'm suggesting. When his boat is seized and his gear is seized, he no longer has that opportunity to exercise his constitutional right to fish for food until that has been resolved, which takes many months for the legal wheels to turn. So during those many months he's without means of providing for his family.

• 1500

Mr. Bill Matthews: Just to comment, a commercial fisherman who has his boat and gear seized can't fish to make money. Consequently, I see them as in identical situations. So that's why I wanted a clarification.

Mr. Doug Brown: Yes, but I'm suggesting that there's a difference between a commercial right to fish and a right to fish for food.

The Chair: Great. We have one point of clarification.

Mr. Bernier, a quick point.

[Translation]

Mr. Yvan Bernier: I would like to return to the concept of moderate livelihood discussed on page 3 of Chief Paul's document. We have both made comparisons. He indicated that it should be equal to that of other fishers and that there were rich fishers and poor fishers. However, in this case, we are speaking of individual fishers. I am trying to give MPs a better understanding of how the Micmac community functions. If I have understood correctly, the Supreme Court ruled that fishing is a right to be exercised by the community. How can we compare the profits of someone who has a boat and who is doing well, and the way in which this fishing right will be exercised by the community? I ask this question because the key or cornerstone to the allocation of the resource is what is understood by "moderate livelihood". We need to determine whether more or fewer resources will be needed to meet their needs. If our witnesses do not have the time to answer this question now, I would appreciate it if they could tell us some of the things that come to mind or if they could send this information to Ottawa to clarify the matter for us.

[English]

Mr. John Paul: I think that's part of what we have to do with our communities, our tribes.

Mr. Yvan Bernier: Big question.

The Chair: To the big question, can we give a small answer?

Mr. Doug Brown: I might be able to do this really fast.

The Chair: If you could, Doug, please. We have taxis waiting. I wish we had more time, but we don't.

Mr. Doug Brown: I would suggest that in the Mi'kmaq communities not all the people of the communities are fishing; only some of them are. The treaties are communal rights. A treaty right is a communal right. So when one Mi'kmaq fisherman is fishing, there are ten others in the reserve that aren't fishing. So when people embark to understand the concept of determining the “moderate livelihood”, I think that communal aspect of the right has to be factored into the equation. You may be talking a “moderate livelihood”, and it may not apply just to the one person who's fishing; it may apply to the community he's from. That's something that obviously needs to be discussed at the table.

The Chair: We'll be discussing it a little further at future meetings.

Mr. Prosper, you wanted to make one final point?

Mr. Paul Prosper: Yes, very brief. The issue of “moderate livelihood” is not a dead issue after fisheries. Marshall is about hunting, fishing, and gathering. And the more resources the Mi'kmaq have access to, the less strain on a particular resource.

The Chair: Mr. Brown, you had mentioned that some people were affected by being charged. If you've any documentation in that regard, you could forward it to the clerk of the committee and we might be able to have a look at it.

Mr. Doug Brown: Sure.

The Chair: I would have liked to have been able to get into the food fishery and ask you how we handle that, but we don't have time for it. I'm sorry. I think we'll have to do it at a future date, because we do need to have... I think you heard evidence previously in terms of the perception or the reality of the food fishery creating an illegal black market. We need to be able to able to deal with that somehow. I'm sorry we don't have time to deal with it here.

• 1505

Thank you, gentlemen. Thank you very much for your presentation.

Members, you're to meet outside the doors. The taxis are waiting and arrangements have been made.

The meeting is adjourned until nine o'clock tomorrow morning in Moncton, New Brunswick.