Fisheries Committee on Oct. 26th, 2020

[The Chair, Liberal, Ken McDonald]

It's no trouble to get consumed in the testimony. It's very intriguing, actually.

We now go to you, Mr. Battiste, for six minutes or less. I understand you're sharing your time with Mr. Cormier. If you want, I'll wave at the halfway mark, and if you decide to share, you can share. If not, you can keep going, I guess. I don't have control of that.

Go ahead when you're ready.

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

Thank you, Mr. Chair. If I can ask you, so that I can be way more generous with my colleague than Mr. Bragdon was with his, can you just interrupt and say that it's Mr. Cormier's turn to ask a question? I know he has some questions for Chief Gray.

That said, I would like to ask Regional Chief Prosper my question. I want to give you a chance to finish your speech, but I would also like to ask you this. We've been told about the approaches that haven't worked over the past 20 years. I'd very much like to hear your solutions on any approaches to implementing the Mi'kmaq right that you believe could work.

Thank you.

[Chief Paul J. Prosper]

Thank you.

Further to what you mentioned on the approaches that don't work, at a basic level, it's negotiation without recognition. That has been the legacy. It's endemic within any government to this point, over the 21 years.

In terms of moving forward and what could be an appropriate solution, it's important to consider that many in our communities can't relate to any position on our rights without any consultation as to what we know or believe. Government speaks much about consultation; however, their positions and actions reflect a reality where we have to fit within their rules. By not getting a proper mandate and not consulting in good faith within the consultation process, government is making Mi'kmaq leadership look incompetent and not responsive to the needs of our communities.

What that begs is this notion of true reconciliation. True reconciliation means a reconciliation of laws: Mi'kmaq treaty law with Canadian law under the Fisheries Act. There is a need for both of these laws to work together to address the conflict that is taking place in our territory. There's no immediate action in this area. The progress we have made over the years has been in jeopardy of being lost and a cycle of direct action and litigation can return. There is a takeaway here, and that is the legacy of Donald Marshall, Jr.

Donald Marshall, Jr. died nine years after his landmark decision. This decision provided a ray of hope for many of our people, yet Donald Marshall did not even get a chance to see his decision fully realized within our Mi'kmaq communities. Even though I believe there is just cause to suggest an appropriate path forward, I can't help but plead with you and others not to act on your own and come up with something that you think is good for us. It will never work. What exists in our communities is the product of the federal government's failed good intentions. If the legacy of Donald Marshall means anything, it means that we have a right to live on this land. We have a right to live in accordance with the original instructions given to us by Kisu'lkw, the creator, which has been recognized and affirmed by the highest law and court in this country.

Thank you.

[The Chair, Liberal, Ken McDonald]

We go to you now, Mr. Cormier.

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Chief Gray, thanks for being with us at this committee today.

As you are our neighbour just across the bay, we're thinking about you during this difficult time. I know your community is facing some restrictions that are coming to New Brunswick with regard to COVID-19, but we're thinking about you and we hope this will be over soon.

Chief Gray, just for this committee's understanding and for Canadians also, everyone in this industry seems to think we are in this situation because there has been a lack of clarity by DFO or government over this year. Let's just imagine there were some successful negotiations, if I can say that, and everyone agreed on the definition of “moderate livelihood”.

Would you accept that, if the earnings of that “moderate livelihood” were restricted to the commercial fishing season in different lobster zones in Atlantic Canada? I think you know what I'm saying. I just want you to comment on that.

[Chief Darcy Gray]

I'm sure you know the Restigouche River, if you're from just across the way. We've been managing the Restigouche River for the last 30 years, going back to 1995. We passed our own salmon law back then, and since then we've been regulating our own salmon fishery. The fishery there is very well managed.

Conservation is of the utmost importance. The season is determined according to our law. We don't necessarily look at the commercial season or the food fishery season, and we don't look at the lobster the same way either. Instead, we look at the stocks and how healthy they are. That's kind of the way we've been approaching things with our management plan here.

The fish we catch in the fall are part of a fishery that is normally licensed and recognized under the allowable effort, under DFO regulation. This is not outside of a fishing season, so to speak. The difference here is that we are looking to, at the very least, recoup some cost and generate a bit of a moderate livelihood. Now, we're nowhere close, but we did create some opportunity for our people through that.

As I said, rather than looking at seasons, we're looking at the needs of our people. Sometimes you need to eat the food and sometimes you need to sell it to make a livelihood.

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Very quickly, can you talk about the co-operation between commercial fishers and fishers in your community? We're close to each other, so can we talk about the co-operation you guys have had during the last couple of years?

[Chief Darcy Gray]

Sure. Everything has been peaceful on the water here. Everything has been good. We do participate in a number of fisheries. In the lobster fishery, guys will help each other out during the commercial season. There aren't a lot of issues there and we've had no violence during our livelihood fishery in the fall during the last two years. If you look at our snow crab fishery and other commercial operations, there's a lot of good collaboration there.

We really work well with the people around us, and there's a lot of openness to do so.

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Thank you, Mr. Chair.

[The Chair, Liberal, Ken McDonald]

Thank you for that.

We now go to Madame Gill for six minutes or less.

Go ahead, please.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I want to thank Chief Prosper and Chief Gray for accepting the committee's invitation.

I want to ask a question that's both simple and complex— you'll understand why.

From the start, you both agreed that this should be a nation-to-nation negotiation. What key factors would create winning conditions for an effective and beneficial nation-to-nation negotiation?

[Chief Paul J. Prosper]

Getting to the point of nation-to-nation and the winning conditions to allow an environment like that to take place means recognizing the law of this land and the need for reconciliation that exists between laws that relate to treaties and aboriginal people and to laws that exist within Canada. They can work together, but it takes a certain level of respect and maturity in order to get to that place.

[Chief Darcy Gray]

I would just add that I think the key is the flexibility on their side. So far when we talk about negotiations and reconciliation, it seems to be reconciling our expectations with Canadian law or Canadian policy and trying to fit them into that mould, rather than looking at what's confirmed in the Constitution, what's confirmed in the treaties as our right and how we go out and exercise that. There is also recognizing that we as Mi'kmaq people can define that for ourselves. It doesn't have to compete with Canadian law; it can be in concert with it. It can work well with those regulations, those policies, but we have to have that open, and if it's not there, then we're going nowhere and we've spent four and a half years going sideways.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you.

Basically, there are two factors. These factors are compliance with legislation and reconciliation, and flexibility.

Chief Prosper, at the start, you spoke about a moderate livelihood. Chief Gray, you also seemed to be saying that this concept could be defined, even though the concept is very complex and many values must be taken into account. Is that right?

If you don't have an answer or a definition, could you provide some guidelines or ideas regarding this concept that we should definitely consider? For example, I'm thinking of the spirituality aspect.

[Chief Paul J. Prosper]

Perhaps I could begin, Chief Gray.

As I mentioned earlier with respect to legal definitions related to “moderate livelihood”, I certainly believe those are beyond the scope of this committee. In order to approach “moderate livelihood”, one has to examine and create a process whereby one actually has a mechanism that actually recognizes the Mi'kmaq treaty right itself. Once that is available, then that process can inform what a moderate livelihood is. It might be something that exists on a community-by-community basis or on a person-by-person basis. That's what I would say.

[Chief Darcy Gray]

It's been our experience as well that it is very much community to community. If you look at how we work together with our neighbours and how we go about fishing, what we view as key principles and values tend to align, but in the day-to-day ways we do that, there are different practices, and it wouldn't be for us in Listuguj to tell Gespe'gewa'gi how to fish or what's important or how they define “moderate livelihood”. That's something they need to determine for themselves. We as Listuguj will determine it for ourselves, and we can learn from each other, but that's really what it comes down to.

[Marilène Gill, Bloc, Manicouagan, QC]

I have only one minute left. I'll address another issue, and we can come back to this later.

You spoke a great deal about self-regulation and your own legislation adapted to the needs of the community. You said that this was working well. You also spoke about learning from others, and you just finished on that note.

If this was working, what could cause conflict? Would it be the views of the other stakeholders?

How do you view the situation with regard to these regulations and this legislation, which you say are good for fishing?

[Chief Paul J. Prosper]

Perhaps I could offer something in that regard.

I think one cannot completely get rid of the potential for conflict. Essentially what one hopes to achieve is for government to do the right thing and to recognize that these rights exist—they're a matter of the law of the land—and to figure out a process and mechanism to implement those rights.

With that, I think first nation communities can work together with our non-native counterparts in a manner that is respectful of each of these respective rights through the process of reconciliation.

[The Chair, Liberal, Ken McDonald]

Thank you, Madam Gill. That ends your time.

We will now go to Mr. Johns. You have six minutes or less, please.

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

Thank you, Mr. Chair.

It's an honour to be joining you from the unceded lands of the Hupacasath and shíshálh people. I want to thank both Chief Prosper and Chief Gray for their testimony. It's very important.

We know right now that the Minister of Fisheries and Oceans is in talks with the Sipekne'katik people and that she won't negotiate in public. She has stated that on a number of occasions. We agree with that.

We're sitting at this committee studying an ongoing issue that's important to those parties who are in nation-to-nation discussions.

This is a question for Chief Prosper.

You've stated some concerns about the committee studying this issue, about these discussions that are taking place right now. Here we are at committee having this conversation. You have concerns about undermining those discussions. What are the consequences of having this discussion at committee while DFO and the nation are talking in private?

[Chief Paul J. Prosper]

Thank you for that.

We're talking about a subject matter that involves constitutionally recognized rights that have been affirmed and recognized from the basis of treaty. These are nation-to-nation documents, and they appropriately need to be discussed at that level, on a nation-to-nation basis.

My worries about committee discussions are that findings from a committee of this sort, especially if it gets into legal definitions, can certainly undermine the nature of those discussions that are more appropriately within the two representatives of government: the ministers and the leaders of first nations people.

As I mentioned before, I think an appropriate subject matter for purposes of this committee is to provide an educational component, and I think that's further to what Chief Gray mentioned as well.

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

From my experience in my riding, where we have 10 Nuu-chah-nulth nations and the Qualicum nation, I know that indigenous fishers are regularly shut down in the name of conservation. We see the government spending millions of dollars fighting them in court. We even have judges at the Supreme Court level say that DFO has knowingly gone to the table with an empty mandate, without truthfully showing up to the table. We see that systemic racism.

Do you believe that this committee should be studying systemic racism? In what ways are what's happening in Nova Scotia reflective of the bigger issue happening with the Department of Fisheries and Oceans?

This is for you again, Chief Prosper.

[Chief Paul J. Prosper]

I hearken back to my earlier example of my community of Paqtnkek. Donald Marshall was fishing off of our reserve lands here. Paqtnkek didn't sign a Marshall agreement; we didn't sign an AFS agreement. The reason we didn't sign those agreements is that there was no mandate to discuss the right. What government essentially did was to say, “Here's an agreement. We have no mandate, and there's no other option for you.”

This runs long and deep within many of our first nation communities. There's a distinct need to offer a different approach on this particular item, because shame on Canada for not recognizing Sparrow; double shame on Canada for not recognizing Marshall.

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

What would you like to see this committee recommend that this government do to make changes within the Department of Fisheries and Oceans that go beyond symbolic measures of reconciliation?

[Chief Paul J. Prosper]

What I'm thinking is that the concept of reconciliation has to have some real substance. One cannot look at these rights reconciliation agreements that were reasonably put forward in 2007, which are essentially, “Here's some money; you're going to be under our rules, and by the way, your treaty rights are going to be on hold for 10 years.”

True reconciliation is recognizing Mi'kmaq law. We have a constitutional base, and that has to be reconciled with federal law within the Fisheries Act. It has to do with more than just saying there's access. It has to provide an element of self-governance. What our people, our fishers, our community members are looking for is something that reflects the true nature of the treaty relationship that exists—something different.