Fisheries Committee on Oct. 26th, 2020

[The Chair, Liberal, Ken McDonald]

I call this meeting to order. Welcome to meeting number four of the House of Commons Standing Committee on Fisheries and Oceans. Pursuant to Standing Order 108(2) and a motion adopted by the committee on Monday, October 19, 2020, the committee is resuming its study of the implementation of the Mi'kmaq treaty fishing rights to support a moderate livelihood.

I would like to start the meeting by providing you with some information following the motion that was adopted in the House on Wednesday, September 23, 2020.

The committee, of course, is now sitting in a hybrid format, meaning that members can participate either in person or by video conference. Witnesses must appear by video conference. All members, regardless of their method of participation, will be counted for the purpose of quorum.

The committee's power to sit, however, is limited by the priority use of House resources, which is determined by the whips. All questions must be decided by a recorded vote unless the committee disposes of them with unanimous consent or on division. Finally, the committee may deliberate in camera, provided that it takes into account the potential risks to confidentiality inherent in such deliberations with remote participants.

The proceedings will be made available via the House of Commons website. Just so you are aware, the webcast will always show the person speaking rather than the entirety of the committee.

To ensure an orderly meeting, I would like to outline a few rules to follow.

For those participating virtually, members and witnesses may speak in the official language of their choice. Interpretation services are available for this meeting. You have the choice at the bottom of your screen of floor, English or French. Before speaking, click on the microphone icon to activate your own mike. When you are done speaking, please put your mike on mute to minimize any interference that might occur. I remind everyone that all comments by members and witnesses should be addressed through the chair.

Should members need to request the floor outside of their designated time for questions, they should activate their mike and state that they have a point of order. If a member wishes to intervene on a point of order that has been raised by another member, they should use the “raise hand” function. This will signal to the chair their interest in speaking and create a speakers list. In order to do so, members should click on “participants” at the bottom of their screen. When the list pops up, they will see, next to their name, that they can click “raise hand”.

When speaking, please speak slowly and clearly. Unless there are exceptional circumstances, the use of headsets with a boom microphone is mandatory for everyone participating remotely. Should any technical challenges arise, please advise the chair. Please note that we may need to suspend for a few minutes as we need to ensure that all members are able to participate fully.

For those participating in person, proceed as you usually would when the whole committee is meeting in person in the committee room. Keep in mind the directives from the Board of Internal Economy regarding masking and health protocols. Should you wish to get my attention, signal me with a hand gesture or, at an appropriate time, call out my name. Should you wish to raise a point of order, wait for an appropriate time and indicate to me clearly that you wish to raise a point of order.

With regard to the speakers list, the committee clerk and I will do the best we can to maintain a consolidated order of speaking for all members, whether they are participating virtually or in person.

I would now like to welcome our witnesses in the first panel. We have Chief Paul J. Prosper of the Paqtnkek Mi'kmaw Nation, regional chief for Nova Scotia and Newfoundland in the Assembly of First Nations. We also have with us Chief Darcy Gray of the Listuguj Mi'gmaq Government.

We will now proceed with opening remarks from Chief Prosper first. I will remind the speakers that they have five minutes for opening remarks, and I have to be firm on the time frame because we're late starting and we want to make sure we get our questioning in, as well as hearing your important testimony.

Chief Prosper, when you're ready, you have five minutes or less. Go ahead, please.

[Chief Paul J. Prosper, Regional Chief, Nova Scotia and Newfoundland, Assembly of First Nations]

Kwe. Thank you, Mr. Chair. Honourable committee members, I am honoured to be here. I am here on behalf of the Assembly of First Nations, representing the region of Nova Scotia and Newfoundland.

I would like to begin by stating that it is beyond the scope and mandate of this committee to provide any definition of legal concepts such as what is a moderate livelihood or a livelihood fishery. To do so would be to undermine the nation-to-nation negotiations currently undertaken between the Mi'kmaq and the federal government. Rather, I believe the primary purpose of this hearing is to educate you, the leadership of this country, on some issues and perspectives that the Mi'kmaq are currently facing. To do so in five minutes or less will be a challenging task.

To begin, by way of background, we as Mi'kmaq have a long history within our traditional territory. We have our own creation story. We have legends that speak to a time when the ice started to walk on the land. Before the arrival of Europeans, we existed as independent nations governed by our own customs, values and traditions. As such, we have aboriginal and treaty rights that have been recognized and affirmed by the highest law, the Constitution, and the highest court, the Supreme Court of Canada, in this country.

A national chief once said that for a first nation to gain recognition of rights, three aspects need to be employed: direct action, dedication, and consultation and negotiation. For each of these, different people step forward and take on a specific role and responsibility.

Through many decades, the Mi'kmaq have gone through this cycle of direct action and litigation. It is within the last two decades that the Mi'kmaq of Nova Scotia have undertaken negotiations in a unified manner with the federal and provincial governments. As Mi'kmaq, we have our warriors, those on the front lines who take matters into their own hands in the face of injustice, people like Gabriel Sylliboy, James Matthew Simon, David Denny, John Paul and Tom Sylliboy, as well as Donald Marshall, Jr. and many others.

In order to create a law as aboriginal people, we have to break a law that is unjust in the first instance. Litigation often places the obligation of aboriginal and treaty law against provincial and federal law at the highest level, the Constitution of Canada.

I'll say a bit about the political landscape. We have salmon rights in Quebec in 1981, Denny, Paul and Sylliboy charges; in 1987, the royal commission report on the wrongful conviction of Donald Marshall, Jr.; in 1989, the Nova Scotia Court of Appeal in Denny, Paul, and Sylliboy, following with Sparrow; AFS agreements; Donald Marshall being charged in 1993; the Supreme Court of Canada's decision and the reaction in Burnt Church; we have, in 1999 and 2000, the Marshall agreements; also the made-in-Nova Scotia process in 2002, followed by rights reconciliation agreements in 2017.

Important to this is the rule of law, which provides, within the Constitution, in section 52, that:

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

All laws must trace their roots back to the Constitution.

To negotiate aboriginal and treaty rights, a government typically conducts its negotiations through a mandate from Canada. It was a rude awakening for me to realize that just because you have an aboriginal and treaty right it does not mean that the government will honour or uphold that right. In other words, there is no mechanism to force governments to honour the laws of this land.

You may ask how I know this.

I know this because Paqntkek and Bear River first nations here in Nova Scotia have been waiting 30 years for a mandate from Sparrow, an aboriginal right to fish, and 21 years for a mandate from Marshall for a livelihood fishery. What is endemic within the federal government in Sparrow through Marshall and still today is negotiation without recognition.

You might be thinking, “How can this happen?” Well, it's quite simple. You have a government official who says, “We don't have a mandate to talk about your rights, but here is an agreement. There is simply no other option.” How does government achieve this? They go band by band.

Still worse are the supposed rights by conciliation agreements of 2017. These agreements provide money to first nations to purchase access in the fishery under DFO rules. In return, first nations have to agree to suspend the practice of their rights for 10 years.

Negotiation without recognition, or access without self-government, is the status quo and default position of the federal government.

[The Chair, Liberal, Ken McDonald]

Chief Prosper, I have to tell you that your time has gone over, unfortunately. If you have your speaking notes, you can send them in to the clerk and we will get them translated and distributed to members of the committee.

We will go now to Chief Gray for five minutes or less, please.

[Chief Darcy Gray, Listuguj Mi'gmaq Government]

Good evening, everyone. Thank you for this opportunity.

Listuguj is a Mi'kmaq community in Gespe'gewa'gi, the seventh district of Mi’gma’gi. We are in essence the gateway to Mi’gma’gi. Using more familiar terms, we are located in Quebec on the Baie des Chaleurs, immediately across the Restigouche River from Campbellton, New Brunswick.

Listuguj is party to the Peace and Friendship Treaties of 1760 and 1761. We have a right to fish and to sell fish to earn a moderate livelihood. The Supreme Court of Canada said in Marshall that Canada has the authority to regulate our fishery but can only impose restrictions on our fishery if they can be justified for a substantive public purpose, are minimally intrusive and follow meaningful consultation. If a restriction cannot be justified, then it is invalid. The general rule is that we have the right to fish and to sell fish any time of the year.

Every fall for the past 20 years, Listuguj has conducted a fall fishery for lobster. The DFO issues Listuguj a licence that restricts this fishery to food, social and ceremonial purposes. The licence prohibits us from selling the lobster we catch in the fall. The prohibition on the sale of lobster we catch in the fall serves no conservation purpose. The DFO permits us to fish, and we fish within the prescribed effort limits. Whether we eat the lobster or sell the lobster, the effect on the lobster stock is the same. The prohibition on the sale of lobster we catch in the fall has nothing to do with regional or economic fairness. These are lobsters that we will be taking from the water one way or another, whether to eat or to sell. If we sell them, that in no way diminishes any other stakeholders' access to the resource.

We asked for years for the minister to issue us a licence that would reflect our treaty right and allow us to sell lobster in the fall. The Fisheries Act and the aboriginal communal fishing licences regulations as they are currently written give the minister the power to do that. We have been negotiating and consulting with the DFO about this issue for years. Every fall we are refused. Every fall the minister insists on prohibiting us from exercising our treaty right.

We understand the need for a well-regulated fishery. We understand that with rights comes responsibility. After several years of community consultation, we adopted our own law and fishing management plan to govern our lobster fishery. Our law and plan allow our people to sell their lobster but ensure that fishing efforts remain sustainable. For the last two falls, we have conducted our own self-regulated fishery. Lobster stocks in our fishing area remain healthy. We have not seen violence like that being witnessed in Nova Scotia. We see our lobster fishery as a self-determination success story. We tried to get here working with DFO. In the end, though, we got here in spite of the DFO.

The DFO still stands in our way. Because the licence we receive for our fall fishery prohibits the sale of lobster, it is an offence under the Fisheries Act for anyone to buy our fall lobster. We have a treaty right to sell, but the DFO makes it illegal for anyone to buy. This is a significant challenge for us, and it is entirely of the DFO's making.

This is not an issue of needing to define a “moderate livelihood”. It hurts me to say it, but Listuguj is a long way from achieving a moderate livelihood through our fishery. We have 33% unemployment. This fall our lobster fishery lasted two weeks and employed 38 people—fishers, monitors, cooks and more. We cooked 10,000 pounds of lobster and distributed them directly to community members, feeding approximately 1,500 community members, including 300 elders. I'm very proud of that, but it's hardly a moderate livelihood.

This is really an issue about how we fish, not about how much we fish. The DFO insists on forcing Mi'kmaq treaty fisheries into the mould that was developed for non-indigenous commercial fisheries. We do not fit that mould. That mould was not made for us. The restrictions that mould imposes are not justifiable. We are more than capable of designing an approach to fisheries governance that does reflect our rights, values and ambitions, but the DFO has not been willing to work with us. By failing to offer any reasonable accommodation of our treaty, the DFO provides no other alternative for us than to self-regulate. In a way, I'm thankful for it. It has made it obvious to our fishers and community members that we are capable of assuming this responsibility. Self-determination and self-government are the future of our fishery.

The only reason the DFO gives us for not issuing us licences that reflect our treaty right is that it would make the fishery difficult for them to manage. I think the exact opposite is true. If we had licences that respected our treaty rights, laws and fishing plans, then we could work collaboratively with the DFO on the water to make sure our fisheries are safe and sustainable.

As it is, the DFO forces the Mi'kmaq to fish in a legal grey area. It makes us angry. It makes non-indigenous fishers angry. That is when management problems really start.

For years—

[The Chair, Liberal, Ken McDonald]

Thank you, Chief Gray. You've gone a little bit over time. I know you have submitted your speaking notes. They are being translated and will be distributed to all members of the committee.

Now we'll go to questioning, and we'll start with the Conservative side.

Mr. Bragdon is first. I understand you're sharing your time with Mr. Arnold. Will I leave that to you to decide when to switch?

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

That would be great, Mr. Chair. If you happen to notice I'm getting close to the three-minute mark, if you want to wave at me, I'll make sure I get to Mr. Arnold in proper time.

[The Chair, Liberal, Ken McDonald]

Okay, go ahead.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Chair.

Thank you to both Chief Prosper and Chief Gray for being here and for taking the time to share their testimony with us. We appreciate your time before the committee today. Thank you.

Obviously, all Canadians are concerned about what has been happening in Nova Scotia of late. I want to state very clearly that any acts of violence are always condemned in situations like this. There's no place for that. The indigenous people certainly have a right to fish, and that is very well established as well.

I appreciate your coming before the committee. We do have some questions.

Obviously, in regard to the situation, we feel we've arrived at this place, in Nova Scotia in particular, in large part because there has not been a proactive approach on the part of the government to address the underlying issues that need to be addressed at this time. We see now that they have put in place a special representative. It's my understanding that they have been appointed to try to mediate or help facilitate the discussion in regard to the situation in Nova Scotia.

On Friday, Chief Mike Sack of the Sipekne'katik First Nation raised concerns over the appointment of the special representative to mediate the conversation between indigenous and commercial fish harvesters in southwestern Nova Scotia. He called the appointment “alarming” and is quoted as saying he is worried about the appointee not having “the capacity to be a neutral third party” to conduct these discussions.

Do you echo these concerns? That question can be for both of you. We'll start with Chief Prosper and then go to Chief Gray.

[Chief Paul J. Prosper]

I guess I'm not completely privy to the specific mandate provided to the special representative. There are ongoing discussions that are taking place between the Mi'kmaq and the federal government, and we're looking forward to a breakthrough in those discussions. With respect to the special representative, I'm sure the federal government has confidence in that individual to conduct the necessary information gathering and discussions to help support these delicate negotiations that are currently taking place with respect to Nova Scotia.

As it relates to previous practices of previous governments—one cannot just point to the Liberal government—for any government since Marshall or Sparrow, Conservative, Liberal or otherwise, negotiation without recognition has been the default position.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Chief Prosper.

Do you have anything to add to that, Chief Gray?

[Chief Darcy Gray]

I think it's an important question, because whenever you're looking at the situation, I think education and understanding are the key aspects. If there are people who can come in, special representatives, or different tables or discussions that can be set up to help educate and develop understanding, I think that's the key.

It reminds me of a conversation I had a little over a year ago with representatives of DFO, saying that for us to keep moving forward in our moderate livelihood fishery, it's important for education to be done, not just with our fishers but with all fishers. I think that's the key.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Chief Gray.

To follow up on that, it seems that one of the continuous frustrations being expressed through this process is the lack of having all parties engaged in the process to this point, making sure that both indigenous and non-indigenous fish harvesters are incorporated in discussions and are part of the process.

Do you believe that perhaps before this appointment was made, consultations should have been held with both indigenous and non-indigenous fish harvesters?

I'll ask Chief Prosper and then Chief Gray.

[Chief Paul J. Prosper]

I believe that certainly discussions should have taken place with both respective parties, but I would also like to note that the Mi'kmaq are in a different position than other interested parties, for example the industry. We have existing constitutional rights, which set us apart from the commercial fishery or even the non-native fishers. I don't agree with the concept of equating the status of these discussions to Mi'kmaq people who have constitutional rights.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Chief Prosper.

Chief Gray, go ahead.

[Chief Darcy Gray]

Certainly, I would agree exactly with what Regional Chief Prosper is saying. Of course, I look at our local situation here, and we're not looking for any violence. We're not looking to make things worse in our area. We would welcome discussion, but it needs to be clear that it can't be a veto type of discussion. It needs to be developing understanding and education around the exercise of our rights.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Thank you, Chief.

Mr. Arnold.

[The Chair, Liberal, Ken McDonald]

You have 10 seconds.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

Oh. My apologies.

[The Chair, Liberal, Ken McDonald]

That's your colleague's idea of sharing.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

My apologies, Mr. Arnold.

[Mel Arnold, Conservative, North Okanagan—Shuswap, BC]

Really quickly, with yes-or-no answers, has “a moderate livelihood” been defined since the Marshall decision, even in a partial way?

[Chief Paul J. Prosper]

No, it hasn't.

[Chief Darcy Gray]

No, and I think we've tried to propose a solution, but we keep being repeatedly told no, that doesn't suit our regulations, our needs, it's too problematic.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Arnold, for that quick question. We got it in.

I did wave, Mr. Bragdon.

[Richard Bragdon, Conservative, Tobique—Mactaquac, NB]

My apologies, Chair. I got lost in the answers and questions. My apologies to Mel as well.