Fisheries Committee on Nov. 30th, 2020

[The Chair, Liberal, Ken McDonald]

Thank you.

Mr. Battiste, please.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Mr. Zscheile, during the Marshall litigation, did the Crown raise the argument that the minister could regulate the Mi'kmaq treaties? Was there an argument brought forth in terms of regulating Mi'kmaq treaty rights?

[Eric Zscheile]

When you read the text of Marshall II, I think they're spelling out what happened with the potential justification arguments that were put forth in Marshall I. In essence, what happened in Marshall I was that the Crown was arguing that there was no treaty right to the activities that Donald Marshall Jr. was involved with, and therefore, they didn't feel that they needed to put forward justification arguments on whether or not he did have a treaty right, but there were conservation concerns, or whatever, at the time. At the time, the Crown chose not to provide justification arguments, and when you read Marshall II, you see that's one of the points that is brought up, that some people felt that it should have taken place.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Okay. Basically, Marshall II ruled on something that was never provided as testimony.

In the historic Badger case, in which they talk about infringing a treaty right, within Treaty No. 8 there's a clause that states:

the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty....

There is a clear regulation clause within Treaty No. 8. Is there any regulation clause in the Mi'kmaq treaties of 1752 or 1760-61 that say that the Crown can regulate Mi'kmaq fisheries?

[Eric Zscheile]

The difficulty of an assertion such as that would be just the language that was used in 1760-61. Is there any direct statement that says it can be regulated or should be regulated by the Crown, or what have you? No, there's not, but it was certainly accepted by all parties within the Donald Marshall Jr. litigation that, under section 35 in the constitutional constructs of Canada, as long as it follows the proper rules and does things according to the way they should be done, the federal government will always have the ability to regulate resources if that's what it needs to do.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Yes.

There are certain ambiguities that I've heard from your testimony as well as...I'm sorry, the other witness we've called. Is there anything within indigenous case law that talks about how to solve ambiguities, if they're there?

[Eric Zscheile]

I think one of the keys to the Marshall case was that, clearly, what was taking place was that you had a document, the treaty of 1760, that was written by British authorities. It was written in a language that was common to British authorities. That's why, when you read Marshall I, you see significant use placed on the transcripts they had of discussions between Mi'kmaq leadership and British authorities in 1760 to talk about what the parties felt they were doing: What was their intention?

I think because the treaties come from a time period when language was not the same.... Plus, you're dealing with peoples who come from a totally different world view. So the way the court looks at things is that, as is normal for most aboriginal litigation, the classic tenet is that they will take the side of first nations in a broader understanding of what was intended when these things were entered into.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Okay. Thank you for that.

We've heard assertions here from fisheries associations that there was $600 million provided to Mi'kmaq fishermen and Mi'kmaq communities for their moderate livelihood. Is that accurate?

[Eric Zscheile]

I wouldn't know the exact amounts when it comes to the Marshall response. I do know that the vast majority of the dollars were for purchases of licences and purchases of equipment. Those dollars didn't go directly to first nations communities. Those dollars would have been used to purchase licences and equipment that would have been from the non-native fishery at the time.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Okay.

I have a last question for both of you, Mr. Roman—I'm sorry I forgot your name earlier—and Mr. Zscheile. Can you think of another case in the history of Canada where there was a need for a clarification by the Supreme Court of Canada?

[Andrew Roman]

I can think of hundreds of them. There are so many Supreme Court of Canada decisions—

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Two months later?

[Andrew Roman]

Well, not two months later, but eventually.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Can you name one?

[Andrew Roman]

The only reason that came up was that someone raised it. When the Stephen Marshall case came up, the same treaty was interpreted, and the court felt an obligation to comment.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Mr. Roman, I'm asking about—

[Andrew Roman]

Those things happen. There are lots of ambiguous decisions.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Mr. Roman, I'm asking if there has ever been a Supreme Court of Canada case that needed to be clarified in the same year, with the same fact situation, in the history of Canada. If you can, can you name it?

[Andrew Roman]

I don't think it needed to be clarified. I think someone just tried to prevent it from happening, and the Supreme Court had to comment on that—

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Mr. Zscheile, can you name one? I'm just wondering.

[Eric Zscheile]

I should say that I was also co-counsel on the Stephen Marshall logging case as well. I think with the Marshall cases, the unique thing that I see in the way the Supreme Court handled the Marshall case is that ordinarily a new case will be brought to the court with a specific set of facts that are different from the initial case's set of facts. The court will look at the legal tenets they've applied according to those facts. I don't know that I've ever seen...and I think what is being suggested, the idea that the Supreme Court would come down with a decision and then a few months later narrow or change the tenor of that decision, not based on factual scenarios that are being brought forward, or new facts that are being brought forward, but simply bringing it based on the application of a fisheries association looking for a retrial.

You have to remember that the ratio of Marshall II is that they're denying the retrial. It's a unique.... Why the Supreme Court felt they needed to rediscuss two months later what they had discussed is still a bit of a mystery to me.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Zscheile and Mr. Battiste.

We'll now go to Mr. Blanchette-Joncas for six minutes or less, please.

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

Thank you, Mr. Chair.

I find the witness group we have right now very interesting, because we seem to have two different perspectives on the issue.

My questions will be addressed to both Mr. Roman and Mr. Zscheile, who will be able to answer them one after the other. I will start with Mr. Roman.

Mr. Roman, does the case law on indigenous fishing rights suggest, or could potentially suggest, that the exercise of fishing rights by indigenous communities takes precedence over the exercise of fishing rights by non-indigenous communities? Are these two activities legally on an equal footing?

[Andrew Roman]

That's a difficult question to answer when you talk about an equal footing, because they aren't on equal footing, never have been, and never will be. That's because one group has treaty rights, and the other group doesn't.

My position isn't all that different from Mr. Zscheile's on most of the issues we have been discussing. The position of indigenous fishers, loggers, or whatever else, is always complicated, because it's a mix of statute and case law.

I don't really have a mandate to say who should fish how much, and I'm not a fisheries officer. If you're going to make new law, do it cleanly, which means pass a law, and don't misunderstand or misstate what the Supreme Court of Canada did and did not decide in the Donald Marshall case and the Stephen Marshall case.

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

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