Thank you for inviting me.
I'm going to explain the problems with implementing the two Marshall decisions as I see them. Before I do that, I want to compliment DFO and the minister for carrying out the recommendation of the Supreme Court of Canada to use negotiation rather than litigation to resolve issues with first nations. These negotiations will succeed, provided that the major stakeholders accept the outcome.
I want to talk a little bit about what the Marshall cases decided because, as I have said in the past, they've often been misunderstood. Most of that is in my written text.
I think that your committee has got it wrong, and I refer to your report number four. I can discuss that later, if there's time, but I think that these two Marshall decisions are better forgotten, because I think that they do more harm to first nations than they help.
Here is why I think you should not try to implement the Marshall decisions. It is the serious discrimination limit that they put on there, the discriminatory limit to a “moderate livelihood” for indigenous fishers. That treats indigenous fishers as second class. No one else is constitutionally limited to a moderate livelihood. Why should we be implementing treaty rights that treat first nations unfairly?
If I were a member of the Mi’kmaq first nation, I would be quite upset that the government is trying to implement that and to call it reconciliation. Parliament doesn't need to implement any treaty so as to do better for first nations than the British did in 1760. Just amend the currently applicable laws as necessary and forget about the Marshall cases. You can do a lot better without them.
Here is my recommendation for the regulation of illegal fishing. DFO has already started doing the necessary thing, which is to negotiate and, ideally, to sign an agreement or to amend applicable laws or both, but let's not pretend that this is just implementing an archaic treaty right that is discriminatory or that it is just pursuing reconciliation. I would say just regulate the catch, permit it to anyone or everyone consistent with fair opportunities for all and species conservation. Then you can focus on, as one of the previous speakers said, enforcement, about which this committee has already heard much criticism. There's no benefit in offering to implement treaty rights without adequate policing of illegal fishing.
In conclusion, the pre- and the post-Marshall disputes have been going on for years now with tensions simmering between fishers of different groups, but it should all become needless tension. Everyone needs a clear understanding of what the rules are today, but that's not the job of the Supreme Court of Canada or of a 246-year-old treaty with Britain. The government has to decide what it considers to be fair for everyone and to have Parliament enact a comprehensive new law that amends the current legislation to deliver that.
I'm hoping that all of the MPs on your committee will be able to put aside partisan differences and work to the benefit of everyone in the fishing industry. Failing that, you will be creating and prolonging more tension and more harm than you will be resolving. That isn't fair to either the first nations you're supposed to be reconciling with or to the non-first nations fishers who complain of being left out of the current negotiations around reconciliation. In conclusion, then, the two Marshall cases are really a barrier to progress, and it's time to get past them.
Thank you. I await your questions.