Fisheries Committee on Nov. 30th, 2020

[The Chair, Liberal, Ken McDonald]

We're back.

I would like to make a few comments for the benefit of the new witnesses.

Before speaking, please wait until I recognize you by name. When you're ready to speak, you can click on the microphone icon to activate your microphone. I will remind you that all comments should be addressed through the chair.

Interpretation, as we've been practising in this video conference, will work very much like in a regular committee meeting. You have the choice at the bottom of your screen of either the floor, English or French. When speaking, please speak slowly and clearly. When you are not speaking, your microphone should be on “mute”.

I would now like to welcome our witnesses.

Here as an individual, we have Andrew Roman, retired lawyer. As well, we have Eric Zscheile, barrister and negotiator for the Kwilmu'kw Maw-klusuaqn negotiation office.

We will now go to opening remarks from Mr. Roman for five minutes or less, please.

[Andrew Roman, Retired Lawyer, As an Individual]

Thank you. Can you hear me fine, Mr. Chair?

[The Chair, Liberal, Ken McDonald]

Yes.

[Andrew Roman]

All right.

Thank you, Mr. McDonald, and committee members, and your hard-working staff, for inviting me.

As a non-partisan witness with no economic interests at stake, I feel free to explain the law as I see it, while recognizing that others may see it differently.

My relevant experience is in analyzing laws and judicial decisions, and I've also drafted federal and provincial legislation. However, I don't claim any special expertise in aboriginal treaty law or in fisheries law.

While I was preparing for today, I watched some of your earlier meetings. Meeting number eight was of particular interest—[Technical Difficulties]

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

Mr. Chair, I cannot hear the witness.

[The Chair, Liberal, Ken McDonald]

Yes, sorry, Mr. Roman, you're cutting out.

[Andrew Roman]

The parts of the presentation I saw—

Yes?

[The Chair, Liberal, Ken McDonald]

We're not hearing everything you're saying. Your connection is in and out. It was good there the last time you spoke, so if it continues to cut in and out, I'll let you know, and we'll have to see if we can rectify it maybe by going to the other witnesses first.

[Andrew Roman]

All right.

I was saying that the minister's speech did not mention any limits on the case that was imposed by the Supreme Court of Canada. No one expected the minister to provide a long legal analysis, but the case law is complex and often misunderstood.

Litigation is better than violence, but it never provides long-term solutions. That's why I was happy to hear your minister say that the nation-to-nation negotiations are taking place. To negotiate fairly, however, the minister must understand the law as it is and not as someone might like it to be.

Floating around in the media for several years has been what I call the “Marshall myth”, that the indigenous fishers have the right to catch whatever they want, whenever they want, provided it is only for a modest livelihood. That's not what the Supreme Court of Canada held as I read its decision.

There were two sets of reasons released three months apart. In the second set of reasons, the court backtracked and narrowed the first set of reasons. It explained that it acquitted Mr. Marshall for fishing for eels, but the court refused to recognize a treaty right covering any species other than eels, because each aquatic species raised different evolving legal issues under different conservation requirements, both for present and future fisheries regulations.

The Supreme Court has never recognized two classes of lobster fishers, indigenous and non-indigenous, with different rights. Lobsters are not eels. The Marshall decision was about eels and on its face as worded cannot apply to lobsters or to any other species.

Our Constitution's section 35 protects existing rights, but it doesn't create new ones. Because there is no treaty right to fish for lobsters, out of compliance with the generally applicable regulations, there can be no constitutional right to earn an illegal income from lobsters whether that is modest or not.

Then in 2005 came the court's decision in the Stephen Marshall case, which was decided about five years after the Sparrow case. The Stephen Marshall case narrowed the resource rights even more closely to what was the actual practice way back in 1760 at which time lobster fishing didn't even exist.

So where are we today? Today, 21 years after the Donald Marshall decision, Canada has no judicial answer and no support for non-compliant lobster fishing.

If this committee wants to recommend authorizing the Mi'kmaq to fish for lobsters out of season or some other way, my advice is to recommend a new law that does that. But be honest, and don't hide behind the Marshall myth to pretend that the law is what it is not. That would be fake law that is inconsistent with a policy of transparency and accountability.

That's why those are my remarks, Mr. Chair.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Roman.

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

[Eric Zscheile, Barrister and Negotiator, Kwilmu’kw Maw-klusuaqn Negotiation Office]

Thank you, Mr. Chair. I would like to thank the Standing Committee on Fisheries and Oceans for inviting me today to address the issues of Mi'kmaq treaty rights implementation.

I was privileged to be involved as co-counsel in assisting Mr. Bruce Wildsmith on the original Donald Marshall Jr. case.

For my opening remarks I would like to touch on three points: first, the reliance that people have been placing upon the two companion cases, Marshall and Marshall II; second, a definition of what I would prefer to call “parameters” around the concept of moderate livelihood; and third, the rights reconciliation approach and community fishing plans.

First I'll touch on the companion cases of Marshall and Marshall II.

In reviewing the record of past witnesses before this committee, I have seen far too much emphasis placed on Marshall II as somehow being a negation of the first Marshall decision or as being a legal authority for the proposition that the DFO can unilaterally impose existing regulatory authorities already found in the Fisheries Act and regulations.

Marshall II must be read within the context of both cases and the facts that gave rise to the acquittal of Donald Marshall Jr. The Marshall II decision was, in fact, a rejection by the Supreme Court of an application by the West Nova Fishermen's Coalition to rehear Marshall.

In fact, Marshall II confirms that Crown obligations toward the implementation of the moderate livelihood right must be guided by the honour of the Crown, and Crown actions will require justification as that test has been developed by the Supreme Court through such cases as Badger.

Marshall II does add the concept of "compelling and substantial public objectives" to the usual justification requirement of conservation, but goes on to state that this does not include "disruption or inconvenience" to non-Mi'kmaq fishermen.

The same arguments being made to this committee by fisheries associations were, therefore, rejected by the Supreme Court in 1999 and are even further from the mark after two decades of subsequent case law respecting Crown obligations in their dealings with first nations respecting rights implementation.

Second let me touch on parameters around moderate livelihood.

When reading Marshall and Marshall II, it is clear that the Supreme Court did not have a specific monetary amount in mind as a definition of “moderate livelihood”. They were placing the concept on a spectrum. At one end of the spectrum was FSC, or food fishing; at the other end was full-scale commercial fishing.

The court clearly felt that the parties, through negotiations, were best placed to find where on that spectrum the answer lay. Marshall II is clear that any answer or definition for what a “moderate livelihood” fishery is must be justified per acceptable legal obligations and must be in terms that can be administered by the regulator, DFO, and understood by the Mi'kmaq community.

Therefore, the socio-economic concept of moderate livelihood, which drifts us into concepts such as living wage and median income, is not the expertise of DFO. What is the purview of DFO is developing, with the Mi'kmaq, rules around the fishery, such as trap numbers, that fall on the proper point in the spectrum.

Third come the rights reconciliation approach and community fishing plans.

In 2016, the Assembly of Nova Scotia Mi'kmaq Chiefs proposed a rights reconciliation approach, or RRA, to Canada and Nova Scotia as an alternative to the comprehensive claims policy. This approach was predicated on the fact that the Mi'kmaq of Nova Scotia had existing, recognized and valid treaties with the Crown and were interested in developing a series of separate arrangements to implement those treaties based on subject matter. I am myself in the process and advanced stages of developing an RRA with Parks Canada and beginning RRA discussions on wildlife management with the Province of Nova Scotia to build on co-management initiatives that we have had success with.

A key component of the RRA approach is the development of interim or incremental arrangements that let both parties test-drive potential solutions. This has led to great successes with Parks Canada and the Province of Nova Scotia.

I am most familiar with the community fishing plans that have been developed by the Potlotek, Pictou Landing and Annapolis Valley first nations. These plans have been submitted to DFO in order to develop interim or incremental arrangements to support a livelihood fishery. These communities, through negotiation and consultation processes, have attempted to engage DFO with respect to the operations and substance of these plans. This is perfectly in line with the proposed RRA that we developed in 2016.

DFO, unique to all other federal or provincial authorities, has unfortunately co-opted the label of RRA and applied it to a process that is not consistent with the spirit or intent of the RRA concept. It is process that DFO has unilaterally developed based on their own regulatory models. It's a process that is founded on self-serving and purposely obstructive mandates. To date, I would not classify any engagements with DFO as true to the RRA.

Thank you. I invite any questions from the committee.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Zscheile.

I don't believe the other witness has signed on yet, so we'll go to our questioning.

First up is Mr. Williamson for six minutes or less, please.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Thank you very much, Mr. Chairman.

Thank you to our two witnesses.

Mr. Zscheile, I remember 21 years ago, when the Supreme Court brought forward the Marshall decision and two months later, the subsequent Marshall II decision appeared. It did seem that Marshall II put parameters around the initial decision. Is it your contention that it didn't do that?

Marshall is quite broad, and the clarification, which is certainly how it was reported in the media, put parameters on it to signal that there had to be collaboration, co-operation and negotiation between the federal government and first nations. At the end of the day, on conservation grounds, the federal government would be supreme. I know that's a word that a lot of people don't like to use, but that seems to be a fair reading of the Marshall decision. It was certainly one that was reported in the popular press 21 years ago.

[Eric Zscheile]

I think my contention truly is that if you put everything into context—remember, Marshall II was, as you're saying, a companion decision to Marshall I—you have to remember that the facts of Marshall II are the facts of Marshall I. It involves the activities of Donald Marshall, Jr. and all of the facts surrounding what he was doing. When you read Marshall II and what it is saying, in a lot of ways it is simply expounding on what the Supreme Court very directly says are fundamental tenets of the way that all treaty and aboriginal rights litigation are looked at.

When we talk about whether the federal government ultimately has the authority to look out for things like conservation and public safety, it absolutely says that. What they're saying in Marshall II is that this was part and parcel of what Marshall I is all about as well. Marshall I cannot stand for the proposition that the federal government does not have ultimately the ability to regulate for things like conservation and public safety.

What Marshall II then also says, though, is that we're not minimizing the task of the federal government when it looks at regulations. It has to justify its regulations. Are its regulations truly directing themselves towards consultation and public safety? Are the regulations the minimum of infringement on rights to reach the federal government's goals in what it wants to do with its regulations? When it talks about the Badger case in Marshall II, all of those are still the existing and normal ways that we would look at federal government action when it comes to the way they would look at justification.

I'm just making the ultimate argument that this idea that a new case—a companion case—a few months later, based on the exact same facts as the first case, could somehow come up with a different conclusion than the first case did doesn't have merit.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Sure. I could appreciate that.

Would you agree that Marshall II talked about, perhaps, rights and responsibilities on the part of both the federal government and first nations?

Please be very brief, because I want to ask Mr. Roman a question.

[Eric Zscheile]

Yes. It reiterated the fact that it's up to governments and first nations to negotiate these things out.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Perfect. Thank you.

Mr. Roman, would you have any comment on that?

I call them the “Marshall decisions,” because I think they both have to be read, but do you have any comments on how those two court cases need to be read together to ensure that we arrive at the right outcome?

[Andrew Roman]

I see the two Donald Marshall sets of reasons as being one decision explained twice. There was only one decision, and the decision was that Donald Marshall was not to be convicted. However, in the first reasons for the decision, there was a strong dissent from Justice Beverley McLachlin, who was not known as a right-wing zealot but as a middle-of-the-road judge. What she dissented was quite strong, so to create a unanimous decision they came back three months later and watered down what they said the first time.

Then, along comes the second decision, six or seven years later, and I want to mention there that Justice Beverley McLachlin, who was writing for the majority in the Stephen Marshall case, held that there was no right to commercial logging under the same treaties as Donald Marshall, because commercial logging was not the basis of their traditional culture.

Well, commercial lobster fishing was also not the basis of traditional culture and identity in 1760, because it didn't exist at the time. They didn't have the vessels to do it at the time. Therefore, I think this does narrow the scope of the Marshall decision.

That said, I agree with Mr. Zscheile in much of what he said about what the test is for justification and the honour of the Crown, that the justification must be, as he described it, the question is not what the test is but how it works today, and if—

[John Williamson, Conservative, New Brunswick Southwest, NB]

Right.

I'm just going to stop you, because—

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Williamson.

[John Williamson, Conservative, New Brunswick Southwest, NB]

I figure my time is up, but I see we have another witness here as well.

[The Chair, Liberal, Ken McDonald]

Okay.

We'll go to Mr. Battiste, for six minutes or less, please.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Mr. Chair, as a quick point of order, I see that Mr. Belliveau, the other witness, is here.

[The Chair, Liberal, Ken McDonald]

I believe the clerk has let me know that we're rescheduling him.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Okay. Pardon me.