Fisheries Committee on Oct. 21st, 2020

[Colin Sproul]

What you're asking begs the question why indigenous people still do not have access to the fishery, given that the federal government spent more than $600 million buying fishery access from non-indigenous communities and delivering it to first nations. It's at the heart of this issue, and it's not being discussed.

The issue is that the majority of that access is then leased back and rented to non-indigenous fishing corporations, effectively dispossessing first nations people of their legitimate right to fish.

As early as last month, Minister Jordan made clear that the government views the implementation of moderate livelihood rights through the communal commercial access program, the transfer of access from non-indigenous communities to indigenous communities.

I see that some indigenous fishery leaders in Nova Scotia are missing the true value of what the fishery is. It's not lobsters landed on the dock or dollars in a bank account. The true value of fishery access is to create fishing families and a lasting legacy of prosperity in Atlantic Canada's first nations.

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

Mr. Cloutier or Ms. Canet, can you talk a little about whether a similar type of structure has been set up for the purchase of quota and vessels for aboriginal fishers in the Gaspé?

[Claire Canet]

Indeed, a number of licences were bought back by the Department of Fisheries and Oceans and given to the three first nations that are present on the Gaspé Peninsula territory. These are commercial licences. You will have the details in our written presentations, which will be submitted to you tomorrow. In addition, the Listuguj first nation has the equivalent of one commercial fishing licence, i.e. 235 traps, to carry out a subsistence fishery in the fall.

I would like to point out that, in the Gaspé region, in the fall period, lobsters have just reproduced. The females that have been fertilized do not yet bear their eggs. These females, which would allow the renewal of the stocks, are not identifiable among all those caught at that time, contrary to the spring commercial fishing period.

I'll let Mr. Cloutier continue.

[The Chair, Liberal, Ken McDonald]

We're out of time for that particular question.

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

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

Mr. Sproul, you stated that section 40 of Marshall II states that is clear that the Minister of Fisheries can unilaterally regulate or infringe a treaty because of conservation. It's odd, because Donald Marshall Jr. fished out of season, sold his catch out of season, and the court found him not guilty—not once but twice—because of the treaty of 1761.

Mr. Sproul, I'm wondering if you've read the other case law on indigenous law that relates to treaty, or just Marshall?

[Colin Sproul]

No, I've read the Marshall decisions—

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

So you would know that in Badger, it said that in order to infringe an aboriginal treaty right, you first have to justify it through either safety or conservation. However, Mikisew Cree, in 2006, also stated that before you can even get to infringement based on safety and conservation, you have to show that the honour of the Crown is met.

I'm wondering if you scrolled down to section 45 of the Marshall decision, five clauses after the one you mentioned, which says:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. It is the obligation of the courts to give effect to that national commitment. No useful purpose would be served by a rehearing of this appeal to revisit such fundamental and incontrovertible principles.

I'm wondering why you keep saying that it's clear that conservation and regulations can come from the minister.

[Colin Sproul]

Well, there are two reasons.

First of all, immediately post-Marshall we saw the chaos that ensued in Burnt Church, New Brunswick. That's what really drove the clarification in November of that year by the court, and what drives my focus on paragraph 40. It clearly showed at that time that management needed to fall with the minister, and then the current minister moved forward with implementing the right through the communal commercial access program.

The second part is that I agree with you that the government needs to pass the Badger test. The first part of that test is a real consultation process with the Mi'kmaq. For the last 21 years, there has never been a consultation process. That is maybe partly because it wasn't set up right for the Mi'kmaq people, but also because indigenous fishery leaders refused to engage in a consultative process—literally putting a sign on the table that said, “This is not a consultation; it's a negotiation.” I would venture to say that for the government to be able to pass the Badger test, the chiefs within Nova Scotia have to be willing to engage in it.

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

I was talking to the litigators today from Marshall, Eric Zscheile and Bruce Wildsmith. Would you be surprised to hear that the Crown never once raised the argument or called any evidence on the scope of the regulatory powers in the first Marshall case? Does that surprise you?

[Colin Sproul]

No, it doesn't surprise me.

I agree with you that the government has failed the Mi'kmaq people, but they've also failed the people of my community, and I think—

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

Colin, this isn't about the government; this is about the law.

You're quoting the law, so I want to know.... In Marshall II, it was actually the West Nova Fishermen's Coalition that brought this argument of regulatory powers. Paragraph 31 is pretty specific when it says, “this question is not raised by the subject matter of the appeal, nor is it capable of being answered on the factual record.” The courts didn't even look...or had no evidence or any kind of argument about regulatory powers.

You keep quoting a part of the case that is legal dicta. Are you familiar with legal dicta?

[Colin Sproul]

I'm not a lawyer; I'm a fisherman. You're the lawyer.

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

You've been quoting the law quite a bit, and I want to read for you what legal dicta are: “The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar.”

Is it true that you've been using these legal dicta as the only source for being able to say that the minister has regulatory power over the Mi'kmaq? True or false?

[Colin Sproul]

I'm not sure I understand the question, but I've certainly been saying that the minister has the regulatory authority here. That's definitely my position.

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

The case ruled pretty specifically, not only once but twice, that Donald Marshall Jr. was not guilty because of a treaty right, despite fishing out of season, despite selling catch out of season. Yet, you say that the law is clear. I'm trying to figure out how.

[Colin Sproul]

I believe the real problem is that it was Donald Marshall Jr. and not his nation. I believe in his individual inherent right to fish. I think that most of the problems that have occurred since then are due to the fact that we have one nation's government and another nation's government dealing with this problem, and fishers have been left out of the equation, on both sides, all along.

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

Colin, you feel that it's the government's fault, but we're seeing vigilante justice, the cutting of traps. Do you think that's the right way to handle the situation? Do you condemn the cutting of traps and what has happened in that area?

[Colin Sproul]

I condemn violent acts of any kind, as well as sending fishing equipment to the bottom of the ocean. I don't think any sustainability-minded fisherman would ever be advocating for something like that.

Just so we're clear, Mr. Battiste, the lobster resource can sustain all of our communities if we focus on sound management by the precautionary principle, and not on politics.

There's a bigger question here that needs to be answered: If moderate livelihood fisheries are intended to make money for indigenous people—it's been accepted by previous witnesses that part of the reason for commercial seasons, other than sustainability, is marketability—why would it not make more sense to fish in the highly marketable season?

Another way of looking at it is that the price that moderate livelihood fishers have been receiving for their catch this summer is somewhere around $3 to $3.50 a pound in Canadian dollars, but the price that fishermen are receiving in open LFAs right now, where the lobster resource has transitioned into a high-quality marketable product, is $12 a pound. If the people of Sipekne’katik left those lobsters in the waters of St. Marys Bay for another eight weeks, the value would increase fourfold.

What's important to know is that Chief Sack's nation possesses 15 commercial lobster fishing licences to fish during commercial seasons in different areas within Nova Scotia. I think the activity that's taking place there now is a bit of a double-edged sword for the people of his nation, in terms of deriving an economic benefit from the industry.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Sproul.

Thank you, Mr. Battiste. Your time has expired.

We'll now go to Madame Gill for six minutes or less, please.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

First of all, I'd like to calm the waters. We are here, in committee, to find solutions. The vigorous exchanges we've just had are evidence of difficulty or perhaps frustration on both sides. I hope that we are able to rise above the fray to find solutions and create that space that is needed, that we have discussed. We have to give space to the other, the other with a capital “O”, to understand their concerns, of course, and to arrive at a space for negotiation. It is important to be open to the other person, to respect them and to recognize their merit.

Also, I know Ms. Canet didn't have time to mention everything she wanted to talk about in her introduction, so I'll leave her some time.

As with the other witnesses, I am particularly interested in the concept of moderate livelihood and what the Department of Fisheries and Oceans could do to facilitate negotiations and the resolution of the crisis we are currently experiencing. Having said that, the other issues that you are interested in are equally important, of course.

[Claire Canet]

Thank you very much for your comments, Ms. Gill.

Indeed, we are in a forum that is meant to be informative for everyone. We want to understand the situation that urgently brings us all together today at the Standing Committee on Fisheries and Oceans. In the current situation, it is important that we move forward with an open mind, so that we can all search for solutions that are acceptable to all, taking into account the needs of each and every one of us.

Speaking of needs, I would say that the notion of moderate livelihood is an extremely complex notion that has been left very vague in various court decisions, including the Marshall decision. This is now causing problems of interpretation and understanding.

The only thing I could contribute today has already been said in different courts, namely that the notion of moderate livelihood is extremely subjective and will be difficult to implement. It has also been said that, in order to determine the meaning of this notion, it would be necessary to take into account all the resources available to a community, regardless of its origins.

The Regroupement des pêcheurs professionnels du Sud de la Gaspésie therefore suggests that, in the event that such a notion should be defined—if such a thing is even possible—one should look at access to commercial fisheries, access to subsistence fisheries, access to other sources of income, access to the private income of the households that make up these communities, tax benefits that could be put in place by the government, as well as other additional assistance.

In this context, it is difficult to make the notion of a moderate livelihood apply only to fisheries. It is true that it is important to ensure that all communities in Canada, regardless of their origins, have access to the same standard of living.

It can be said that communities in the Gaspé, like most coastal communities in eastern Canada, are all economically and socially disadvantaged communities. They all depend on commercial or subsistence fishing. It is therefore important to have a dialogue on this subject.

[Technical difficulty—Editor]

Paragraph 61 of the Marshall decision suggests in passing—at least this is my personal interpretation—that the government may, by regulation, establish what a moderate livelihood means and that the definition itself is not subject to the Badger test. This leads me to believe that any notion of a moderate livelihood must be defined, if at all possible, for all Canadians and must not relate only to fisheries.

We are therefore in a vague and extremely complex context where the exchange of information and mutual understanding are essential.

[The Chair, Liberal, Ken McDonald]

Thank you, Madame Gill, for doing that so the witness could get that on the record.

Before I go any further, I will ask committee members for unanimous consent that we extend enough to get this round and the next round in, as we did the last time for our witnesses. Okay, I see thumbs-up. We're good to go.

I see Mr. Bachrach has left us and Mr. Johns is back.

It's good to see you, sir. You're up now for six minutes or less.

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

Thank you, Mr. Chair. It's great to be back.

Mr. Sproul, as you know, in 1999 the Supreme Court clarified:

The paramount regulatory objective is the conservation of the resource. This responsibility is placed squarely on the Minister and not on the aboriginal or non-aboriginal users of the resource.

Can you clarify when this responsibility for conservation was officially transferred away from the minister and given to the fishers who have been cutting traps and stopping the Mi'kmaq from practising their right to fish?

[Colin Sproul]

It certainly has not, Mr. Johns. What I would say—and I'd refer back to section 40—is that it's clearly not the responsibility of non-aboriginal people to manage the resource.

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

How do you feel...? Do you think there's any situation that can justify cutting traps and cutting fishing lines and the destruction of lobster in the name of conservation? Is there any situation that could justify that?