Fisheries Committee on Nov. 30th, 2020

[Eric Zscheile]

We have to recognize as well there are various aspects of the fisheries wherein first nations have rights. As I said in my opening comments, there's a direct difference between food, social and ceremonial rights versus moderate livelihood rights.

When we brought the case to the Supreme Court, none of us argued the idea of a moderate livelihood. At the time, both sides argued there were two types of fishing: there's food fishing, and there's commercial fishing. It was the Supreme Court that developed this third form of fisheries called a moderate livelihood.

It did that, because in a food fishery, first nations have certain priorities when it comes to access to the fisheries. That comes from the Sparrow case and others. The Supreme Court was concerned about the fact that if we started talking about rights in the commercial sphere, there were inherent limitations or inherent “parameters”, as I call them, that would be around. That's why it came up with the concept of a moderate livelihood.

What's clear, however, is that the Mi'Kmaq, in this instance, are the only ones that have a section 35 right to a moderate livelihood. That doesn't exist for fishers.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you, Mr. Zscheile.

Should the achievement of this standard of living, or adequate livelihood, normally be measured by subsistence fishing income, or should it be measured by the total income of individuals?

[Andrew Roman]

There's a problem with this whole modest income thing. It has never been defined, so it's like a Rorschach test: you read into it what you want to get out of it.

As I said in my opening remarks, if there's no right to do something, you can't earn a modest income doing it. The key part of the Stephen Marshall decision was paragraph 26, where Chief Justice McLachlin said that the treaties grant the right to practice a traditional 1760 trading activity.

The question of fact becomes, what was that? If that's what it was about, what does that translate to, if anything, today?

They were not trading lobsters with the British then, which suggests that if they want to sell lobsters now, you should pass a law authorizing that instead of relying on the Marshall case, which certainly wasn't clear on that point. It could be interpreted, when you look at the Stephen and Donald Marshall cases together, as narrowing the treaty right to something that has to do with what existed in 1760.

It's not a satisfactory situation to say what existed in 1760 was wonderful, but I think what you should do is to pass a law to say we don't want that law anymore, but we this law. If you do that, you then have the honesty of being transparent and accountable as a government, or as a committee, making that recommendation.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Zscheile, can you give us your opinion on this matter?

[Eric Zscheile]

As I said, I think you have to look at the moderate livelihood more as a spectrum of the way in which resources are allocated. If we start getting into an idea of moderate livelihood as a monetary unit or moderate livelihood as family income, and we start having to look at what does everybody have to bring into it and everything else, it starts expanding it way beyond DFO's purview, and where do we go?

That's why I think the important part is using community dialogue and working with communities to develop moderate livelihood fishing plans. I think the first key thing is making sure that the number of lobster that are coming out are within the conservation mandates on both parties' sides and, really, let the communities decide what is the best way for community people to start accessing lobster as they go.

If a community decides within its own plan that they are going to provide the access that they have to livelihood lobster to people within their community who may be unemployed or don't have access to other types of income, then that's something that the community can decide going forward, but if you try to make an omnibus rule that comes from DFO, I just don't know how that's developed, and I don't know how it's implemented.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Blanchette-Joncas.

We will now go on to Mr. Johns for six minutes or less, please.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Thank you, Mr. Chair.

Thank you to the witnesses for your testimony.

Mr. Zscheile, I really was interested in what you had to say about DFO—that they're self-serving and taking a unilateral approach to this—and you talked about rights and reconciliation.

We've had several witnesses come to this committee who have said that DFO doesn't actually have a mandate to determine what moderate livelihoods are or how treaty rights are practised. That mandate actually belongs with Crown-Indigenous Relations on a nation-to-nation basis. Is this something you agree with? Maybe you can expand a little bit on that.

[Eric Zscheile]

Well, to my mind, and certainly as being somebody who is at the main table negotiating with both CIRNAC and DFO, as well as the Province of Nova Scotia, it's always been our understanding that when it comes to fisheries negotiations, that is in the purview of DFO. Certainly, DFO has made it clear that CIRNAC is not there to discuss any of the ways in which fisheries discussions go forward.

When we developed the RRA concept, it was built around the idea that we would start with doable action items that could work going forward, and we could develop those in a way that preserves the health and vitality of the treaties and get both parties working together as co-managers in the attempt.

The dilemma, as you've been saying, is that DFO has come with a very limited mandate on what they can discuss and how they wish to discuss it, and their ability to go out of those mandates seems to be very difficult. My understanding is that they get their mandates from cabinet through the Minister of Fisheries and Oceans, and I don't know how much CIRNAC has to say in the whole affair.

[Gord Johns, NDP, Courtenay—Alberni, BC]

That's perfect, because I was just going to talk about my riding, and I'm sure you're very aware of the Nuu-chah-nulth right to catch and sell fish. They won their court case in the Supreme Court. The government fought them, appealed and appealed and spent over $19 million just on legal fees.

In one of the comments from Judge Garson, who was overseeing one of the court cases, she scolded the government for knowingly going to the table with an empty mandate. This is something that we're seeing frequently. I think you were alluding to how there might be an order in council on some of these issues and that they are at cabinet.

Do you believe that DFO actually has a mandate to resolve these outstanding issue and to honour these court cases?

[Eric Zscheile]

Do they have a mandate? I'll tell you what I've been told, and then we can decide whether or not they have the mandate.

When we developed the community fishing plans that I talked about—Potlotek, Pictou Landing and Annapolis Valley—we wanted to work with DFO to try to ensure that they were plans that both of us could live with. We put forward those plans to DFO for comment and asked them to sit down with us to discuss whether or not these were workable. When we didn't get any response, we went through the levels of consultation to say, okay, well let's consult as we normally would consult when it comes to these things, and we didn't get any response.

Based on the things that have been happening now, we once again.... I was at a meeting with some chiefs and DFO officials where the chiefs said, “All we're looking for is to just tell us what parts of our plan you disagree with, and tell us what parts of our plan that we can modify or work with so that you feel they are acceptable.” What we were told was, “We have no mandate to discuss anything within these plans with you, or any approach other than looking for a general type of licence that we can use to cover this over.”

It really frustrated the chiefs, in the sense that, really, what was the point of the conversation? They couldn't even get a “yes” or a “no” or “here are our problems” from the DFO officials.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Speaking of the chiefs, there seems to be an underlying effort at this committee to condemn Chief Sack and other indigenous fishers for practising their rights. This committee isn't a courtroom. We're here to provide recommendations to the government on how to uphold rights beyond upholding the existing law.

What does DFO need to change to respect the Mi'kmaq rights to fish and for a moderate livelihood?

[Eric Zscheile]

Well, to my mind—and I think this is what the chiefs have put forward—they need to sit down as negotiating partners with the Mi'kmaq at the table, and they need to look at the proposals being put forward by the Mi'kmaq to consider whether these are workable proposals that can be put into place to start addressing moderate livelihood.

That's all the chiefs are asking for. The chiefs are fully willing to say that if there are parts of their plans that they need to modify or adjust or look at again, then they would be glad to do that. Just tell them what they need to do.

So I think what they're looking for is what any of us would look for in negotiations. We bring forward our values, our principles, our wants, things that we want to see, and we're just hoping that the other side of the table can listen to us and we can listen to their hopes and values and what they want to see and we can come up with something that works for both of us. But it's very difficult to negotiate with somebody who just sits on the other side of the table and says, “This is what I want and I really don't have a mandate to talk about anything you want, so I guess we'll just sit here and just speak to each other without any thought that we're going to get to a logical solution.”

[Gord Johns, NDP, Courtenay—Alberni, BC]

The Marshall decision said the Mi'kmaq had a right to a moderate livelihood, not a modest income. Can you explain what it said in the Marshall decision, and set the record straight, that what we're talking about are two different things?

[Eric Zscheile]

Yes, that's what I mean about concepts like median income or whatever. You know, the court wasn't saying that a person has the right to have a middle class income or whatever. What the court was trying to do was to find a way to put some parameters around where this fishery would fall. To put it in blunt terms, if a food fishery means you use 10 traps, and if a commercial fishery means you use 500 traps, well, somewhere between 10 traps and 500 traps is going to be where a moderate livelihood fishery falls, and there are a lot of questions that you need to figure out within that. What is the health of the resource? How many Mi'kmaq want to get involved? How many things are we talking about?

But that's what regulators do. That's what resource managers do. They sit down and they look at the total resource and how they are going to apportion it in a way that meets all of those needs. So when the Supreme Court said moderate livelihood, that's what they were trying to get at. They were trying to get at the sense that if somebody does that, they can't be doing it to accumulate wealth, and they identified what necessities are. They said there's housing, and food, and the necessities of life that all of us have, and if you're doing that, then that's good.

Sorry about that. Thanks.

[The Chair, Liberal, Ken McDonald]

It's not a problem. I was just trying to get the answer in.

Mr. Johns, you've gone over time.

We'll now go to Mr. Calkins for five minutes or less.

Go ahead, please.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Thank you, Chair.

This is a question for both of the witnesses who are here. As the committee has explored the concept of a moderate livelihood, we've had numerous witnesses give us their opinion on this. I'm just wondering what your opinion would be, and whether there is anything in the decisions that would give us any guidance as to whether or not a moderate livelihood would be an individual right or a communal right.

[Andrew Roman]

I don't see anything in the decision that gives you that level of clarity, Mr. Calkins.

I think the problem with moderate livelihood or income is that the Supreme Court of Canada didn't quite know what to do, so it kicked the can down the road and Mr. Zscheile is now left with a battered can and has to try to deal with that. That's not helpful, but, you know, when the Supreme Court of Canada or any other court has half a solution and the case is in front of them, they can't take forever to decide. They decide what they can and they kind of fudge the rest. That's what they did with this empty vessel called moderate livelihood, and now what you have to do is fill it with content.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Zscheile.

[Eric Zscheile]

I think I lost the tenor of the question. Could you repeat it for me?

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

My question was, is there any clarity anywhere, or any opinion anywhere that could help us discern whether or not a moderate livelihood would be an individual right or a community right for first nations?

[Eric Zscheile]

We put it in the same context as just about all of the aboriginal treaty or aboriginal rights litigation that the Supreme Court puts out. These are classified communal rights, meaning that they accrue to a community of first nations. In this case, the community would be the Mi'kmaq, but they're practised, of course, by individuals.

I'll equate it to the moose hunt, which I do a lot of work with. When an individual Mi'kmaq person goes and hunts moose, they're not an employee of a band, and they're not doing so based on that communal idea. They're hunting for themselves and their family. However, the community, being the Mi'kmaq, have the ability to instruct or pass their own rules or laws that say which way the hunt will take place.

With moose in Nova Scotia, the Mi'kmaq have decided that no one should be hunting moose between January 1 and August 15. That's not written in provincial regulations. It's not stipulated anywhere, but the community has said this is the way that we think we should do it. The harvesters, when they go out to hunt as individuals or as family members, follow the communal instructions on the way it should be.

I see fishing being handled the same way, which is communities develop rules, guidelines and understandings on the way it's going to happen and work with individuals who go out to do the actual harvesting, the way that they always would have done.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Roman, in your testimony, you were very clear that a new law should be established to provide certainty and clarity. I'm looking at this from the perspective, and my own understanding, that access to the fishery for the purpose of a moderate livelihood is simply that, access to the fishery. Yet, we seem to be consumed with talking about access to management. When we hear things like co-management of the fishery, which is different than access to the fishery itself, the DFO is typically consultative with people who are involved in the fishery, but they don't give access to management of the fishery to commercial fisherman any more than they give access to management to anyone else.

Is there anything in the Marshall decisions that would give us any clarity as to whether the department or the Crown needs to give up access to management of the fishery in order to provide access to the fishery itself?

[Andrew Roman]

I don't read the decision that way. I think it's silent on that issue.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Zscheile, do you have an opinion on that?

[Eric Zscheile]

I'd agree with Mr. Roman. I don't think there's anything within.... It was never a question being asked of the court in Marshall whether or not Donald Marshall Jr., either individually or as part of a collective, should have management rights. It was strictly towards access.

I would say, I think that there are section 35 rights on things like self-governance and so forth that do start getting into the idea of co-management or partnership rights, as we like to call them in Nova Scotia, but does that come from the Marshall decisions? No, I wouldn't say it does.