Once again, on behalf of the Assembly of First Nations and National Chief, Shawn Atleo, thank you for the invitation.
My name is Stuart Wuttke. I am general counsel for the Assembly of First Nations, and I appreciate the opportunity to be here today on behalf of the AFN.
I have several remarks to put forward with regard to the definition of “aboriginal fisheries”, the prohibition against obstructing passage of fish or waters, and the environmental damages fund.
As a preliminary remark, we would like to note that my appearance today does not qualify as consultation with first nations. The Assembly of First Nations is a political organization and the first nations themselves are the individual rights holders of aboriginal rights and treaty rights. A robust consultation will be required by the Government of Canada with first nations across Canada on the amendments put forward for the Fisheries Act in Bill C-45.
Regarding Bill C-45, it's a concern that clause 175 amends Bill C-38 by replacing the definition of “aboriginal” in relation to fisheries. The definition in this section limits aboriginal fisheries to those fisheries practised for the purposes of using fish for food, social, or ceremonial purposes, or for purposes set out in land claims agreements. The amendments in clause 175 specifically remove recognition of “subsistence” fisheries and added those fisheries “in a land claims agreement”.
To begin with, the Assembly of First Nations is concerned about an attempt to legislate a definition as to which fisheries qualify as aboriginal. It is up to each first nation to determine the extent and nature of their fisheries. Leaving avenues open for policy to define food, social, and ceremonial fisheries may result in an infringement of first nation rights.
The government must robustly consult and accommodate first nations if it is to contemplate the nature of aboriginal fisheries.
With respect to amendments, clause 175 falls short of including all first nation fisheries protected by the Constitution Act, including fisheries set out in treaty and traditional fisheries based on first nation inherent rights.
The AFN is substantially concerned that the definition set out will freeze Fisheries and Oceans Canada's interpretations and policies in the year 1990, when the court decision reaffirmed first nations rights to food, social, and ceremonial fisheries in the Sparrow decision.
I'd like to note that the Sparrow decision included an important concept that is lacking in the government's attempt to narrowly define first nations fisheries. The Supreme Court clearly articulated that first nation rights must be interpreted flexibly so as to allow their evolution over time. It would make sense to define aboriginal fisheries in a way that allows evolution over time. Setting a definition that fails to acknowledge fisheries, reaffirmed by the Supreme Court after 1990, that fails to include wording that would allow fisheries that may be reaffirmed in the future, effectively prevents any flexible interpretation of rights and is contrary to the Supreme Court direction.
In a high-level engagement with the Department of Fisheries and Oceans, the Assembly of First Nations learned that the government intends to interpret this definition in a limited temporal scope, meaning that our fisheries that are not utilized, which often occurs for conservation purposes, will no longer be protected from serious harm.
I would argue that this does not qualify as a flexible interpretation. This is counterintuitive, and opens a door for abrogating and derogating first nation rights by allowing for species that first nations fish to continue to decline in population, potentially past the point of recovery, to the detriment of the ability to continue to exercise a right to fish.
Bill C-45 should be amended to make it clear that all traditional fisheries must be protected, whether currently practised or whether in a period of recovery to allow for future practice.
The government has argued that the definition of “aboriginal” fisheries need not include fisheries under economic components, since those fisheries would be protected under the definition of “commercial” fisheries. I caution that unilaterally deciding which fisheries are not aboriginal is contrary to the principle of self-determination, a principle embraced by Canada by virtue of adopting the United Nations Declaration on the Rights of Indigenous Peoples.
I would like to note that the separation of commercial and aboriginal fisheries is arbitrary. The Supreme Court of Canada has been clear that the commercial mainstream principle is not necessarily appropriate for determining what income is situated on a reserve, and it is clear that income attached to a reserve is different in nature from the commercial activities undertaken by non-first nations.
Since aboriginal fisheries must be clearly protected by section 35 of the Fisheries Act, the AFN would recommend that the definition be expanded to include traditional fisheries, fisheries within treaties as well as land claim agreements, and fisheries practised for the purpose consistent with an aboriginal right. An amendment noting that the minister must consult with first nations in determining which fisheries fall within a definition of “aboriginal” would assist in making the act consistent with case law.
On our concerns with regard to clause 174, the Assembly of First Nations is concerned about the breadth and discretion in administering the environmental damages fund for the purposes related to conservation and protection of fish, fish habitat, the restoration of fish habitat, or for administering the fund.
Specifically, the Assembly of First Nations is concerned about how these funds will be administered and used. First nations are specific resource users recognized by the act, and first nations have specific uses that differ from other resource users. It is absolutely essential that first nations rights and interests are considered when administering the fund.
The AFN would suggest that the government include first nation representatives from accountable first nations organizations on the administering body, if and when such body is created. As well, as stated with the replacement of the 1986 habitat policy, the mechanisms for ensuring a preference for like-for-like habitat when compensating for habitat damages may no longer exist.
The Assembly of First Nations recommends that the government continue to maintain a preference for like-for-like habitat in order to ensure that more utilized species do not receive preference in compensation. For example, first nations are the primary resource users of the eulachon fishery. If a project destroys or alters an eulachon habitat, compensation should not come in the form of enhancements of walleye habitat.
On our concerns regarding clause 173, the prohibition against seines, nets, weirs, or other fish appliances that obstruct “more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream”, may result in the infringement of first nation rights.
Certain first nation fisheries require weirs that extend across entire rivers. These weirs all have mechanisms that allow for fish passage upstream. As the right to practice these fisheries is protected by the Constitution, we at AFN suggest an amendment to specifically exempt aboriginal fisheries from prohibition. I would suggest that the government also consider implications of this amendment on its own assessment weirs, which are used in much the same manner.
To recap, the AFN suggestions are the following.
First, clause 175 should be amended to include a definition of aboriginal fisheries to include traditional fisheries, fisheries within treaties as well as land claim agreements, and fisheries practiced for the purposes consistent with an aboriginal right.
Secondly, the government should ensure compensation projects under the environmental damages fund to give preference to like-to-like habitat and ensure that first nations are involved in the administration of the fund.
Thirdly, clause 173 should be amended to exempt aboriginal fisheries.
Thank you.