Fisheries Committee on Dec. 2nd, 2020

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

I just want to make a point. The Marshall decision was about a treaty of 1760, when no band councils existed. Band councils didn't exist until 1960.

I want to ask about this whole adjacency argument. If adjacency was the argument in court and what the court went with, then why was Donald Marshall Jr.—a member of the Membertou band, which is a two-hour car drive away from Pomquet Harbour, where he was harvesting eels— found innocent, not guilty, of fishing out of season because of the treaty of 1760 or 1761?

Mr. Belliveau, I'm listening to your legal argument on adjacency.

[Sterling Belliveau]

I've had access to lawyers and counsel over the 21 years here concerning adjacency, and it clearly defines that. I can't get back into the mindset of the Supreme Court judges on Donald Marshall, but I can get into the mindset of the Supreme Court when they talked about adjacency. It's very clear; it spells it out. I've had lawyers give me that same interpretation.

We're getting to the crux of the matter here. If we can define it and come to an agreement that this is the interpretation, I can assure you that the interpretation of adjacency is in the minds of the commercial fishers and the stakeholders in Nova Scotia.

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

But we've heard testimony that the Mi'kmaq nation, which I'm a part of, traditionally has seven districts. Donald Marshall Jr. wasn't fishing within his district. How was he not guilty? I keep coming back to that. If that's the law, then how was he not guilty?

[Sterling Belliveau]

I'm not talking about Donald Marshall. I'm talking about a Supreme Court decision that talked about—

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

—that Donald Marshall Jr. was a part of, yes.

[Sterling Belliveau]

—the right for the Mi'kmaq to have access to a fishery. That statement is very clear. It talks about the territories of the bands. We have 13 in Nova Scotia. If we respect that decision, 13 bands with adjacency, we would have this solved by 90% tonight, sir.

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

But the bands didn't exist when the treaties were signed. They were a construct of the government in 1960. I'm asking you about an agreement in 1760 between districts, and you're talking to me about a federal construct. I'm wondering how you reconcile those.

[Sterling Belliveau]

I can reconcile it by what I say: that the wording is very clear. It's adjacency. If you live by the decision of the Supreme Court in 1999, it talks about it very clearly. It is also in a clarification of the standing committee.

Twenty-one years ago, the same committee that you're sitting on now gave clarification to Marshall 2. It went through the standing committee, the same committee that you're on, sir, 21 years ago. It did a clarification, and it talked about the importance of adjacency.

It can't get any clearer than that. These were elected officials who dealt with that word, and here we are 21 years in the future having the same discussion.

What I'm suggesting to you is that hopefully your standing committee can make a recommendation to the Minister of Fisheries to create this mechanism, and we'd have an opportunity to be heard and have a good discussion by level-headed people that could get this thing solved almost within hours.

I was hoping I'd get a question from you about the offshore. That would be an interesting scenario. I just want to plant this seed in your head, and I hope you'll have a chance to understand it.

If we were to remove the partnership whereby the Mi'kmaq are going to buy Clearwater and were to remove the B.C. firm with the Atlantic Canadian inshore fishermen—just visualize that—and partner with the Mi'kmaq, we would have a stepping stone to get this thing resolved within hours.

I just want to leave you with that question, and I hope you have a chance to reflect on that possible scenario, because this can be easily done. Put that sale on hold and just visualize a partnership. The word in itself will have a lot of solving power to get this issue resolved. I hope you have time to reflect on that.

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

I'll make time. Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Battiste.

We now go to Mr. d'Entremont for five minutes or less, please.

[Chris d'Entremont, Conservative, West Nova, NS]

Thank you, Mr. Chair, and to all our presenters today, welcome.

I want to go to Professor Dadswell for a second.

In your opening remarks you seemed to say that the Government of Canada will likely cause large-scale damage to lobster stocks in the Maritimes and cause a decline in lobster landings in this region.

Some of the current concerns we are hearing are that catch rates during the summer are substantially higher than in the fall. In your opinion, what would catch rates be for summer fishing vis-à-vis seasonal fishing? Also, how important, as I think you've said already, is St. Marys Bay to lobster production for Southwest Nova, the Bay of Fundy and the Gulf of Maine?

[Dr. Michael Dadswell]

I'll start right at the beginning. The biology of the lobsters is that they're cold-blooded organisms—poikilotherms—and that they feed and grow based on the temperature they're living in. If the water is warmer, they move around more, they eat more, and so forth.

The fishery in southwest Nova Scotia is really run in the winter, when the lobster slow down because it's colder. The temperatures are between 5° and 10° centigrade instead of 15° to 20°. When you open up out of season in St. Marys Bay, you're dealing with much warmer temperatures, and so you're going to get a much higher catch rate because of it.

[Chris d'Entremont, Conservative, West Nova, NS]

What would that catch rate be? Would it be two times higher, 10 times higher? What would the number be?

[Dr. Michael Dadswell]

Basically, activity doubles for every 10 centigrade degrees, so if the temperature in, say, December is 5° and in St. Marys Bay in the fall it's 15° or higher, then you'll get a doubling of movement and a doubling of catch. Particularly in a situation in which you put a few lobster traps in with bait, you're going to draw lobsters from all around, in contrast with having a lot of traps with a few lobsters in each one.

[Chris d'Entremont, Conservative, West Nova, NS]

All right. That rolls me over to Mr. Hutchins.

When we talk about the FSC fishery that has been going on in St. Marys Bay for a very long time—and, I would say, the illegal fishing that goes on around the FSC fishery, or around taking advantage of the FSC fishery—how many traps do you think are actually in the bay at this point? We've heard numbers as high as 4,000. What would your opinion be of how big that fishery actually is?

[Gary Hutchins]

I can only base it on my experience and the knowledge that I have. I know that this year—because I'm in touch with fishermen all the time—there were in excess of 3,000 traps removed from the bay that were supposedly involved in an FSC fishery.

Now, we're supposed to have the understanding that there were 250 traps set for this moderate livelihood fishery to start. That was initially what we'd been told.

I want to give you a little bit of clarity here. When this started, from September 17 to October 3, when they started hauling their traps, Mr. Sack himself said that they caught $1.2 million worth of lobsters. If we extrapolate that backwards and look at the price that they were getting for poor-quality lobsters, that's roughly 300,000 pounds of lobster in that short period of time. It takes a commercial fisherman three to four years to catch 300,000 pounds of lobster, depending on the size of the vessel and how far the fisherman would have to travel to set the gear.

That gives you an idea of how many lobsters are in that bay in the summer and how vulnerable they are. Most of them—I would say 50% of them—die when they're taken out of the water. That's why we found thousands of pounds in the woods that were discarded because they weren't marketable.

[Chris d'Entremont, Conservative, West Nova, NS]

I think that's why people are frustrated; it's because they see that going on.

I hear from the community that the indigenous group was taking out somewhere close to 60,000 pounds of lobster per evening or per day. Would that be a reasonable number? I mean, would that be a realistic number?

[Gary Hutchins]

I'm not sure exactly how much per day, but I know there is in excess of one million pounds or more per year coming out of there. I was in the middle of doing some investigations on exactly how much lobster was coming out. I had put a proposal through to our regional office that I wanted to go down and to check every vessel that came in. I wanted to weigh the lobsters because I wanted to deal with the quota situation that each band had been allocated. I wanted to shut the fishery down when that was achieved. However, my department would not let me do that, so I cannot tell you exactly what was taking place as far as the removal of lobsters goes. However, I can tell you that on many occasions we've seen one little boat bring in as high as 12 to 15 crates of lobsters in a 15-hour period. That's astronomical. If fishermen could do that, they'd be catching a million pounds of lobster each a year themselves.

[Chris d'Entremont, Conservative, West Nova, NS]

That's a lot more than the 500 traps—

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. d'Entremont.

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

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Mr. Chair.

It's been most interesting testimony given during this committee during this important study. One thing is clear: Minister Bernadette Jordan did not create the problem that we're dealing with today. This situation has evolved on a department that was ill-equipped to deal with a court decision, as the evidence shows. At the same time, it was a department that faced years and years of cutbacks in the key enforcement area that Mr. Hutchins is speaking about.

If we're going to move forward in this area, then we have to develop a regulatory regime that is going to regulate effectively both the indigenous fishery—which will take place because the Supreme Court of Canada ruled that the first nations community have the right to access a fishery.... It is the same court and legal system that protects the value of the commercial fishing industry in Atlantic Canada. It's the same court system. If we did not have the ability to enforce the commercial fishery through the courts, then those licences would not be worth what they are and the industry would not be worth what it is to the coastal communities and the commercial industry.

There's enough blame to go around, but it did not all occur within the last few weeks. I just wanted to make that comment regarding my colleague, Minister Bernadette Jordan, who is attempting to deal with a situation that simmered for 20 years because it was unresolved and it wasn't dealt with.

My question goes to Melanie Sonnenberg, who is the one person representing the lobster fishery. It's important when we get witnesses using comparisons to other areas—such as a comparison to Maine—as a justification that you can fish when you want to, because if we allow this industry to be destroyed, as the chair can speak to in this committee, we'll have a situation like the cod fishery in Newfoundland, where nobody has anything. The only way that the first nations are going to have a moderate livelihood is if this resource continues to be managed as it has been over the past 20 years, during which it was successfully managed into a very lucrative industry.

I will ask Melanie if she would speak to the difference with Maine. Mr. Dadswell referred to it a bit. However, you cannot apply the Maine fishery to maritime Canada in the same equations, because they are very different scenarios.

Can you speak to that, Melanie?

[Melanie Sonnenberg]

I can certainly try, and given that I live in an area that is neighbouring the main fishery, I certainly can give a little insight.

We heard from Professor Dadswell about what some of those differences are. We have a very robust management system that you've referenced. It plays out in terms of the landed value of the product that we're bringing in, and the seasons are set up for reasons. The industry itself, the harvesters that I would represent, take the roles that we have very seriously, and generally, I would say, are very supportive. Certainly there are always bad apples in every lot, but for the most part people believe in them, and that's what got us to where we are.

When you look at the economic value of the lobster fishery and the increase that it has seen in the last number of years through the reproductive cycles that we've seen, you see that it's been extraordinary. We've all benefited from it, from the access that came from Marshall and from the non-native harvesters. Everybody has seen better days out of that.

I think we need to take a good long look before we start making any changes to be like the main fishery, in which they fish a soft product, which comes with problems.

For us, I don't hear anybody suggesting we switch over to the main program. I'm working with a lot of groups that fish lobster, and that just doesn't seem to be on the menu on any particular day, Mr. Morrissey.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you.

Chair, what's my time?

[The Chair, Liberal, Ken McDonald]

You have 30 seconds.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Melanie. It's important to have that on the record, because some people from an academic side will make comparisons when, quite frankly, they don't know what the hell they're talking about.

Thank you.