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.