Fisheries Committee on Nov. 25th, 2020

[The Chair, Liberal, Ken McDonald]

I now call this meeting to order.

Welcome to meeting number 10 of the House of Commons Standing Committee on Fisheries and Oceans. Pursuant to Standing Order 108(2) and the motion adopted by the committee on Monday, October 19, 2020, the committee is resuming its study of the implementation of Mi'kmaq treaty fishing rights to support a moderate livelihood.

Today's meeting is taking place in a hybrid format pursuant to the House order of September 23, 2020. The proceedings will be made available via the House of Commons website. So you are aware, the webcast will always show the person speaking rather than the entirety of the committee. To ensure an orderly meeting, I would like to outline a few rules to follow.

Members and witnesses may speak in the official language of their choice. Interpretation services are available for this meeting. You have the choice, at the bottom of your screen, of “floor”, “English” or “French”. For members participating in person, proceed as you usually would when the whole committee is in meeting in person in a committee room. Keep in mind the directives from the Board of Internal Economy regarding masking and health protocols.

Before speaking, please wait until I recognize you by name. If you are on the video conference, please click on the microphone icon to unmute yourself. Those in the room, your microphone will be controlled as normal by the proceedings and verification officer. I will remind you that all comments by members and witnesses should be addressed through the chair. When you are not speaking, your mike should be on mute. With regard to a speaking list, the committee clerk and I will do the best we can to maintain a consolidated order of speaking for all members, whether they are participating virtually or in person.

I would now like to welcome our witnesses.

Today we have, from the Coldwater Lobster Association, President Bernie Berry. As an individual, we have Mr. Richard Williams, and as an individual, we have Alan Clarke, retired enforcement officer with the Department of Fisheries and Oceans.

We'll now proceed to remarks.

For five minutes or less, Mr. Berry you can go first.

[Bernie Berry, President, Coldwater Lobster Association]

Good afternoon, everyone. Thank you for the opportunity to speak before the Standing Committee on Fisheries and Oceans.

My name is Bernie Berry. I am president of the Coldwater Lobster Association. Our association was established five years ago and we represent approximately 200 members. Our membership is comprised of fishermen from Lobster Fishing Area 34, the largest LFA in eastern Canada, which encompasses an area of 8,500 square kilometres with 975 licences, the most licences in any LFA, and the largest landings per year at approximately 45 million to 47 million pounds per season.

The issue before us today has created great strife within our communities for over 21 years with little to no progress. A moderate livelihood fishery will have implications for first nations fishermen, commercial fishermen and all coastal communities that rely on the fishery for their economic survival.

The implementation process of a moderate livelihood fishery must be determined through open dialogue with all affected parties. The most critical reason for this matter of a moderate livelihood fishery not moving forward has been a lack of transparency in the negotiating process. The Crown has not carried out consistent or meaningful talks with either first nations or industry over the years.

Industry has been excluded from the most crucial conversations when they concerned a transfer of access to the fishery and how that is going to be achieved without harming the industry. The industry must be included in the talks because it has had a long dependence on these resources for the success of not only its own businesses but its communities' economic well-being as well.

The nation-to-nation negotiation model has not wielded any lasting success when it pertains to integrating first nations into the fishing industry through a moderate livelihood fishery. Continued exclusion of the fishing industry from these talks will not help to achieve a positive outcome in these discussions.

All parties must have their concerns fully vetted to have any chance of a lasting agreement among all involved. This process must recognize that there can only be one regulator and one set of rules for all. We cannot entertain any thought of having multiple regulatory regimes. If there are multiple regulators for one fishery it will only lead to confusion, non-compliance, lack of science, lack of enforcement, etc. It simply will not work.

In early September, Nanos Research was commissioned by Maritime and Quebec fishing associations to conduct a Canadian public opinion poll asking about how the fishery should be managed. In early November, Nanos Research was commissioned again to conduct a poll of Canadians, this time by The Globe and Mail and CTV, which included several questions from the earlier poll. One question in particular that was included in both surveys indicated that an overwhelming percentage of Canadians, 75%, believe there should be only one regulator and one set of rules laid out by the Government of Canada.

Adjacency must be a major component of any discussions pertaining to a moderate livelihood also. First nations have traditional territories that they have hunted and fished. First nations cannot simply choose where they want to fish. Traditional grounds, areas and territories must be established and adhered to by first nations.

Two first nations bands located in southwest Nova Scotia, namely Acadia First Nation and Bear River First Nation, have expressed major concerns about the infringement on their traditional grounds by outside first nations bands in Nova Scotia. The adjacency concern must be addressed in order to ensure there is no undue pressure on particular stocks in localized areas.

Since 1999, almost $600 million has been allocated to buy first nations access into the commercial fishery. Today another process is under way to negotiate a moderate livelihood fishery that will cost the Crown hundreds of millions of additional dollars. Industry believes the Crown has fulfilled its fiduciary responsibility concern in the Marshall decision.

The Marshall initiative, along with other government programs and the ingenuity of first nations, has created an economic success story within Atlantic Canada first nations. This success was documented in a recent Macdonald-Laurier Institute report, which showed the total on-reserve fishing revenue for Mi'kmaq and Maliseet in Nova Scotia province grew from $3 million in 1999 to $152 million in 2016. This number is expected to be much higher today.

The report evaluated the overall impact of the Marshall decision and highlighted impressive first nations fishing fleets, the dramatic increase in indigenous workers in the sector and the substantial financial benefits flowing to these communities.

It also documented the growth of onshore processing plants and related value-added businesses.

Following the 1999 Marshall decision, indigenous and non-indigenous fishermen have fished side by side in numerous fisheries. There is no difference between the two parties on the water in the commercial season. Collectively it is fishermen trying to do their best for their families and their communities.

The ultimate goal of any negotiation is to ensure that differences are put aside, but ultimately, equality and respect must prevail.

Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Berry.

We'll go to Mr. Clarke, for five minutes or less, please.

[Alan Clarke, South West Nova Scotia Area Chief of Enforcement, Department of Fisheries and Oceans (Retired), As an Individual]

Thank you.

This is not the first time that I have addressed the fisheries standing committee on this issue. I joined DFO as a fishery officer in July 1979, and I retired in September 2014. I spent 35 years as a fishery officer, and of those 35 years, 25 were as the area chief of enforcement for the southwest Nova Scotia area of the Scotia Fundy, now Maritimes region.

I managed compliance, monitoring, conservation and protection and enforcement through the 1990 Supreme Court Sparrow decision on the food, social and ceremonial, FSC, rites and through the September 1999 Supreme Court of Canada Marshall moderate livelihood decision and the Supreme Court's subsequent November 1999 clarification.

For the sake of full disclosure and transparency, I also want to advise the committee that I have not now nor had at any time in the past any affiliation with any commercial fishery or any organization involving lobsters or any other fishery, for that matter.

I also have no connection with any political party. I served under 10 Liberal and seven Conservative DFO ministers, and three Liberal and three Conservative prime ministers. Through my 35-year tenure with DFO enforcement, I have always conducted myself and our C and P programs in a non-partisan way, our only objective being efficient and productive fisheries management in all fisheries. This included proactive compliance, monitoring and enforcement to ensure the long-term sustainability of all fisheries for the future benefit of all Canadians.

As you are aware, following the Marshall decision, the fisheries standing committee of the day held extensive hearings surrounding the department's implementation of the Marshall decision. During those hearings and discussions, I was interviewed by Mr. Wayne Easter, who was then chair of the fisheries standing committee. The standing committee was seeking first-hand knowledge of the fisheries management and the enforcement concerns and problems we were experiencing in the field in southwest Nova Scotia.

We identified several key enforcement issues that were having a deleterious effect on our fishery officers' ability to deal effectively and proactively with the increased non-compliance that was occurring during the closed lobster fishing season.

We also offered several essential recommendations to enhance conservation through proper management and enforcement in this fishery. They included that effective enforcement was critical to conservation. DFO must rigorously enforce fisheries' regulations with impartiality. DFO must have a sufficient number of enforcement officers, and those officers must be provided with the budgets and equipment to do the job safely and effectively. DFO must enforce one set of rules and regulations for everyone, and it must have the resources and personnel to do the job.

Commercial fisheries for both indigenous and non-indigenous fishers must be conducted under one set of rules and regulations, including seasons. The lobster fishery in particular must be managed in such a way as to ensure that it is being conducted as a genuine food fishery and not an illegal commercial fishery. There must be an examination of the question of whether the lobster food fishery should be conducted during the same season as the regular commercial fishery.

We felt very strongly in 1999 that we had made the appropriate recommendations to the then fisheries standing committee. I feel even more staunchly about them now in 2020.

I would further recommend that the standing committee consult with and listen to their fishery officers to confirm that any recommendations from 1999 or now are still appropriate and comprehensive.

I am a firm believer in the statement that those who don't learn from history are doomed to repeat it. In my view there is no need to try to reinvent the wheel.

I would be pleased to address any questions that you may have.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Clarke.

Mr. Williams, go ahead for five minutes or less, please.

[Richard Williams, Research Director, Canadian Council of Professional Fish Harvesters]

My thanks to the committee and to Jaime Battiste for the opportunity to talk with you today.

I appear in my capacity as research director for the Canadian Council of Professional Fish Harvesters, the national human resources sector council for the fish-harvesting industry in Canada. Our members include harvester organizations across Canada with indigenous representation on both coasts.

I will begin by sharing three of the most significant findings from our recently completed national study of labour supply trends in the Canadian harvesting industry.

First, the fishing industry today is seeing sustainable growth with potential to drive social and economic development in rural coastal communities and first nations. With improving stock management and conservation, the supply of wild-caught seafood is increasingly limited, while global demand is growing almost exponentially. In this situation, seafood product values have nowhere to go but up over the foreseeable future.

Second, the most serious barrier to continuing industry growth may be labour supply. A third of the current workforce will age out of the industry by 2025, and with shrinking rural populations, we currently have too few new entrants to replace them. As we have already seen in fish processing, critical labour shortages may soon be common on the harvesting side.

Third, indigenous employment in the fishery grew from 1,400 individuals in 2001 to 3,400 in 2016, an increase of 142%. Indigenous harvesters made up 13% of the total fishing labour force in Nova Scotia in 2016, and 18% in New Brunswick. Those figures will have increased since then.

Taking all these factors into account, it’s clear that there are real opportunities for first nations to achieve greater economic and social development through expanded engagement in fisheries.

How best to pursue this opportunity? One path is to continue the incremental growth of the past two decades and find ways to accelerate it through new collaborations with government and other industry stakeholders, or first nations may undertake to create new and distinct fisheries with perhaps multiple management systems and licensing regimes, or some combination of the two. Whatever pathways, there will be impact on non-native harvesters and their communities. I will share with you what I understand to be the predominant views taking shape among the harvester leaders I work with across the Atlantic and Quebec.

These leaders understand and acknowledge that 300 years of systemic racism unjustly separated indigenous peoples from their traditional territories and fisheries, and that racism is evident today in recent violent action. They recognize the constitutional rights and the simple human rights of indigenous peoples to have full and fair access to fisheries for food, social and ceremonial purposes; to earn rewarding livelihoods; and to build self-reliant communities. They recognize and accept that the moderate livelihood right set out by the Marshall decision is to be negotiated between the Crown and first nations on a government-to-government basis, and that they are not party to these negotiations.

Finally, they share with indigenous leaders and harvesters a commitment to conserving fish stocks and habitat and to conducting fisheries on a sustainable basis to ensure employment, incomes, and social and cultural well-being for future generations.

In my view, these points of emerging consensus provide a constructive basis for dialogue and future collaboration with first nations fisheries leaders and government agencies on moving forward with the development of indigenous fisheries. If and when that begins, harvester leaders in the commercial fishery will bring forward certain concerns, as you've heard, about process and implementation steps.

First, it is in no one’s interest that there be conflict in communities and on the water, with international media attention focused on violent incidents. Harvester leaders deal every day with pressures from their grassroots members who are reacting anxiously to rumours and aggressive posturing by non-indigenous and indigenous actors, particularly on social media. There is a critical need for calmer voices to be heard and for leaders in government, first nations and commercial fisheries organizations to provide clearer information on policy objectives, pathways and timetables.

Second, after a two-decade struggle to get the fleet separation and owner-operator policies enshrined in legislation and regulations, commercial harvesters hope to see first nations fisheries develop in ways that help retain fair shares of the wealth of the fishery in the hands of working harvesters and their communities, both indigenous and non-indigenous.

Third, non-native fish harvesters need to have a voice and a role in the process. It will help a great deal to relieve current pressures if government establishes a formal consultation table linked to and informing government-to-government negotiations with first nations.

As you've heard, the issue of seasons is critical and will have to be dealt with as well.

Today, first nations communities are pushing for their rightful place in the fishery. It may take longer than some might hope, but I believe conditions are taking shape to achieve this. It is an inescapable reality that success will require indigenous and non-indigenous harvesters to work together to steward common resources, manage adjacent fisheries and meet the demands of the same markets.

As a practical step in this direction—

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Williams. We've gone over time and I have to get to the questioning.

Before I get to the questioning round, I just want to let the members know that we'll have to carve off the last half hour for future committee business, namely the next meeting and beyond. I'm going to have to be very strict on the time allocated for questions and when it ends, because I don't want to punish anybody on the sheet by not getting to them.

We'll start off with Mr. Bragdon, for six minutes or less.

As well, to the questioners, please, if you can, identify who you would like to answer the question instead of leaving it just hanging out there for someone to volunteer to answer. It makes it much easier and goes much more quickly.

Mr. Bragdon.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Chair; and thank you to each to the witnesses for joining us tonight and giving us some very valuable insights through your testimony.

Mr. Clarke, I'll start with you. Congratulations on many years of service in DFO, over 30 years, through various administrations. That's a lot of experience you bring to the table, and perspective.

I notice you recently were quoted in The Guardian stating that the minister mishandled the situation. Can you expand on how you think the minister has mishandled it and what you think should be done differently, or should have been done differently?

[Alan Clarke]

I was very concerned by the September 17 comments by the minister in which she indicated that unauthorized fishing during the closed season would not be allowed during negotiations. Either she or perhaps the PMO decided that they were going to change that strategy, but that started the chain of events of creating uncertainty, fear and confusion that, in my view, led to the civil unrest that took place.

In no way do I condone civil unrest. I spent 35 years trying to ensure that civil unrest did not take place in the fisheries, and I certainly wouldn't condone it now, but I can understand the frustration and the terrible communication, as I would call it. I wouldn't call it bad communication; I would have to call it no communication. The minister and her department, and the Prime Minister's Office, for that matter, have had terrible public relations and communications around this issue since September 17, and in my opinion, that has created and contributed to the confusion and the frustration that spills over sometimes in civil unrest.

I was involved in civil unrest when we had 200 or 300 lobster vessels blockade the Yarmouth ferry at the Yarmouth wharf. I've had office occupations; I've had protests and demonstrations. I've seen the riot team, the RCMP riot squad, marching down Main Street in Yarmouth, beating on their shields trying to clear protesters. Therefore, I know what civil unrest can do and I'm afraid that the minister contributed with her poor communication, helping to create that civil unrest.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Clarke.

I have just one more question for you, and I'm going to put it to Mr. Berry and Mr. Williams as well.

There has been a lot of talk and we've heard a lot throughout this committee and throughout the time this committee has been going on in regard to the establishment of potentially two separate fishing authorities.

Mr. Clarke, I want to get your perspective from an enforcement standpoint, and then I'll go to Mr. Berry and Mr. Williams. What are your thoughts as to how two separate fishing authorities would work or not?

[Alan Clarke]

I don't think they have a chance of being successful. As the Supreme Court pointed out, I think the onus is not on indigenous or non-indigenous fishermen to decide how the fishery is going to be managed. It's up to the Crown and the government to decide. There has to be one authority with one set of rules and regulations for all. I think that was clear in their decision, and it was also clear in the first standing committee recommendations, the 28 recommendations that were produced.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Clarke.

Mr. Berry.

[Bernie Berry]

If I could I would like to expand on Mr. Clarke's earlier point about the things that happened this summer and the reason they got out of hand.

It wasn't simply that DFO stopped doing its due diligence this summer. Over years, if not decades, it has just slowly and surely pulled back and almost simply abdicated its role and responsibilities of enforcing the rules that are on the books. This is something that has been building, not just since this summer. This has been a long time coming.

The other thing is that the minister is the only one who can issue licences and the one who has to maintain order. Seasons are there for a reason. I hate to use that, but they are for conservation and stuff like that. The minister, and only the minister, has the full authority to issue licences.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Berry.

Mr. Williams.

[Richard Williams]

I guess my approach to this is focused on the fact that in the medium to long term, we are not going to be able to use fisheries officers and have rules enforced by officials on the water as a way to solve these problems. The key in the medium to long term is going to be to get agreements among people who are working together on the water and to have dialogue and collaboration take place at the community level. That's where I think the minister needs to lead this overall exercise in the immediate future.

[The Chair, Liberal, Ken McDonald]

Thank you.

Mr. Morrissey, go ahead for six minutes or less, please.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Chair.

I want to go to Mr. Berry.

You indicated that DFO for some years now has abdicated its role in enforcing regulations in the fishery.

Could you briefly elaborate on the timeline and on how we have arrived at this point?

[Bernie Berry]

This actually really started to happen right after Marshall when especially the out-of-season FSC fishery was being developed, even though the FSC fishery pertained to Sparrow.

In the early 2000s, as today, every year licences had to be negotiated between DFO and first nations to see how much product was going to be removed in a particular summer for food, social and ceremonial. Over time, DFO either negotiated away....

At first, early in the 2000s, they were doing some checks and balances, and they had a handle on what was being removed, but over time slowly their input into what was happening, and their control of what was happening out of season were slipping through their fingers. Whether this was through negotiation...they were ceding more responsibility to other folks, and it wasn't working, and it just kept building and building. Actually, I think DFO simply lost control, and that's why we're here today.

[Bobby Morrissey, Liberal, Egmont, PE]

Mr. Berry, there was a period of time when the department's enforcement capability was significantly reduced by the government of the day. Did that have an impact?

[Bernie Berry]

It could have, but still you have to make do with what you have. Yes, there were probably more officers in the field 20 years ago than there are today, but you have to adjust. You can't just give up your responsibility for what you're supposed to be doing in terms of enforcement.

[Bobby Morrissey, Liberal, Egmont, PE]

If you have fewer people to do the enforcement, how do you do it? It's difficult to operate a competitive fishery like this under a goodwill principle.

An issue that is at the periphery of this issue—it was discussed generally in some early meetings—is what I would call not only the out-of-season, but the unrecorded, undocumented and unregistered cash-for-product sales in the industry, which have been growing. It's been alluded to by a number of witnesses who appeared before this committee. We're told off the record, and sometimes on the record, that a big part of what is driving some of the unrest here is the lucrativeness of this industry as it relates to cash sales.

I'll ask all three to comment.

[Bernie Berry]

You're absolutely right. The reason this activity has grown is that it is so lucrative. There are a lot of concerns there. It's not just the cash deals, which are in the millions and millions of dollars—

[Bobby Morrissey, Liberal, Egmont, PE]

You recognize and acknowledge that this is happening?

[Bernie Berry]

Out of season, absolutely.

The other thing is that enough lobsters are being landed that aren't being accounted for that it could have a detrimental effect on how biologists and scientists look at how they put their numbers together when they assess the stock, for example.

[Bobby Morrissey, Liberal, Egmont, PE]

Would that have a negative impact on our marine sustainability certification, MSC, that we depend on for sales in our European and U.S. markets? Our markets depend a lot on being able to document and have validity in those numbers. If those are not being recorded accurately, it could have a negative impact on our key marketplaces.

Would you agree?