Fisheries Committee on Nov. 2nd, 2020

[The Chair, Liberal, Ken McDonald]

I now call this meeting to order.

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

Today's meeting is taking place in a hybrid format, pursuant to the House order of September 23, 2020. The proceedings will be made available via the House of Commons website. 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. 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.

For members participating in person, proceed as you usually would when the whole committee is meeting in person in a committee room. Keep in mind the directives from the Board of Internal Economy regarding masking and health protocols.

Before speaking, please wait until I recognize you by name. If you are on video conference, please click on the microphone icon to unmute yourself. For those in the room, your microphone will be controlled as normal by the proceedings and verification officer.

As a reminder, all comments by members and witnesses should be addressed through the chair. When you are not speaking, your mike should be on mute; I can't say that often enough.

With regard to a 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 today.

We have Naiomi Metallic, chancellor's chair in aboriginal law and policy and assistant professor, Schulich School of Law, Dalhousie University. We have Dr. Rodon, associate professor and Canada research chair in northern sustainable development, Université Laval. We also have Dr. Wicken, professor in the department of history at York University.

We will now proceed with opening remarks.

Professor Metallic, we'll go to you, for five minutes or less, please.

[Prof. Naiomi Metallic, Chancellor's Chair in Aboriginal Law and Policy and Assistant Professor, Schulich School of Law, Dalhousie University, As an Individual]

Thank you very much.

My name is Naiomi Metallic and I am a Mi'kmaq woman from the Listuguj Mi'gmaq First Nation. I am also a lawyer and a law professor. I clerked at the Supreme Court of Canada with the Honourable Justice Michel Bastarache. I have practised in the area of aboriginal law and, as a full-time law professor since 2016, I have taught constitutional law and aboriginal law, particularly section 35, and the Supreme Court of Canada cases on those. I have some knowledge of circumstances in the Atlantic region in the various communities. I've also done work on a case involving social assistance and have been part of research projects that have looked at high unemployment and social assistance dependency and some of the causes around that. I know some of the issues around needs in the communities in the Atlantic provinces.

My submissions are primarily intended to clarify the law regarding Canada's obligations regarding a moderate livelihood fishery. The term “regulate” gets used a lot. Yes, the Supreme Court of Canada said, in both Marshall I and II, that Canada has the right to regulate treaty rights, but what I am offering, and what the materials that I submitted in advance attempt to do, is to show that “regulate” does not mean that Canada may legislate and limit the treaty right in whatever way it sees fit. There is far more to it than that.

To give some broad brush strokes to the submissions that I provided, when section 35 was introduced and the Supreme Court interpreted it for the first time in a case called Sparrow in 1990, the court acknowledged that section 35 had changed the rules of the game and that these rules would provide a strong check on the legislative powers of the government. That didn't mean that the federal government didn't have any legislative powers—recognizing that, particularly with respect to the federal government, there's a section 91(24) power in relation to indigenous people—but there was also a clear recognition that now, because of section 35, there would be limits on how far regulation in respect to aboriginal and treaty rights could go.

The focus of my paper looks at.... When there is an infringement of an aboriginal and treaty right, there is in fact a two-step test, a justification test, that the court has provided, and it has been extremely consistent in how this test works since the decision in Sparrow in 1990. The two prongs to this test are, first, that there has to be a valid objective and, second, that the government has to show that it has followed a certain process that ensures its treatment of aboriginal or treaty rights is in line with the honour of the Crown and the government's fiduciary duty with respect to indigenous peoples.

On the valid objective front, the court has identified that conservation and management of natural resources can be part of a valid objective. In fact, in the commercial context, in a case called Gladstone, the court also noted that there can be additional objectives, such as addressing economic and regional fairness within an industry, as well as historical reliance and participation of non-indigenous groups in an industry. But the court also makes a point in another case, called Powley, that it is simply not sufficient to just assert a valid objective. The government also has to bring evidence supporting that valid objective and that they're acting on it in good faith.

That is the valid objective prong, but there's more to it than that. I think often the media coverage on this issue tends to forget step two, and that's the harder part for governments to meet.

Step two, as I said, is about meeting Canada's fiduciary duty and honour of the Crown in addressing and accommodating aboriginal and treaty rights. Here, the court has said there are various things the government needs to do. First, it needs to show that it gave priority to the right. Depending on the right and issue, that priority can be different.

When we're talking about food, social and ceremonial rights, after conservation, the court has said this has to be an exclusive priority before the interests of other users of the fishery. Now, in a commercial context, in Gladstone and in both Marshall decisions, the court said that it's not exclusive priority, but nonetheless there still has to be priority given to the aboriginal right. So—

[The Chair, Liberal, Ken McDonald]

Thank you, Ms. Metallic. Your time has gone over.

We do have a copy of your speaking notes, which will be circulated to all committee members, but hopefully anything you didn't get out will come out in the line of questioning.

[Prof. Naiomi Metallic]

Thank you.

[The Chair, Liberal, Ken McDonald]

We'll go now to Professor Rodon for five minutes or less, please.

[Thierry Rodon, Associate Professor and Canada Research Chair in sustainable northern development, Université Laval, As an Individual]

Thank you for the invitation.

I will be speaking in French and I will try not to speak too quickly.

I am a professor of political science. Therefore, I might have a slightly different view of the crisis. I have been working with indigenous communities for a very long time, in particular on the issues of fisheries management, salmon management and agreements negotiated with governments.

The first thing that stood out for me with respect to the crisis we are discussing is access to resources. That is the central issue and it has a very specific context. Before the arrival of the Europeans, indigenous peoples were politically autonomous and self-reliant, as stated by the Royal Commission on Aboriginal Peoples. It is important to keep that in mind.

This issue affects the Mi'Kmaq as well as other indigenous communities in Canada, although the files and the positions differ. In some cases, it is about access to the resource and the commercial fishery. The Algonquins in Quebec have asked for a moratorium on moose hunting to protect the species. At any rate, the issue is always access to and protection of the resource. It is important to point that out.

With respect to the Mi'Kmaq, we often hear that all they want to do is fish for salmon and make money. However, it is much more complicated than that. It has a great deal to do with self-governance. The Mi'kmaq from the Sipekne'katik community decided to create their own fishing season and to issue their own permits, which is clearly recognized by Canada's 1995 inherent right policy. This policy clearly states that self-government is an aboriginal right and that natural resources management is a right that they can negotiate as a priority or exclusively. One of the most important rights is access to the resource, and that is what is at stake in the case we are studying.

This type of situation is going to occur more and more often in Canada. One must have experienced the salmon fishing crisis on the Moisie River to know how to arrive at a solution. In the end, this type of crisis, where access to a resource and competition between sport fishers and commercial fishers are at issue, can be resolved through co-management. The co-management of natural resources allows for the recognition of a dual authority: that of the federal government over the commercial fisheries and that of the indigenous communities over the management of their resources.

This makes it possible to collaborate and to harmonize fishing practices, and also to alleviate the concerns of some fishers who are protesting against this fishery, which they consider to be illegal. It is actually not illegal because it stems from the aboriginal rights of indigenous peoples. In the case of the Mi'Kmaq, these rights were never extinguished, unlike what happened in the United States.

It is really in this context that we must understand the issue.

I know that the Supreme Court spoke of the concept of reasonable livelihood, which struck me somewhat. It seems restrictive for a community because indigenous peoples, like all other Canadians, have the right to access a resource and to make money.

We should also know that the indigenous fishery, even a commercial one, is a collective. The permits issued under the Aboriginal Fisheries Strategy and Beyond are community permits. This fishery therefore serves to make money for communities, not individuals.

I am very familiar with the Uashat experience of commercial fishing. It created some conflicts at the beginning, but now it is accepted. Innu fishers of the Uashat band council have their own fishing boats, crew and so forth.

Therefore, solutions can be found. On the one hand, self-governance must be recognized and, on the other, co-management institutions must be established to jointly make decisions and to harmonize practices in order to protect the resource.

As Ms. Metallic stated, according to the Sparrow decision, the only issue warranting government intervention is the resource conservation.

The way to resolve this is to work together on conservation. That is what I would recommend.

That concludes my remarks.

[The Chair, Liberal, Ken McDonald]

Thank you for that.

We will go to Professor Wicken, for five minutes or less, please.

[William Craig Wicken, Professor, Department of History, York University, As an Individual]

Mr. Chair, I'm a historian at York University in Toronto, a city you might love to hate. Unfortunately, I'm also a fan of the Toronto Maple Leafs.

I am also an expert witness. I have testified for first nations, the Government of Canada and the attorney general of New Brunswick. I testified in the Marshall case.

It is reasonable to say that non-indigenous fishers may be upset with how the Marshall decision has affected them. They have a large capital investment in the industry. They have worked hard. They want to maintain their communities for their children and grandchildren. Many families date back to the 17th century, such as the D’Entremonts.

It is also reasonable to say that first nations communities have the same purpose: They want to maintain their communities for their children and grandchildren. Their families date from before the 17th century, such as the Battistes.

There are shared as well as different histories here that need to be honoured and remembered so that the past doesn't become a lodestone around our necks but emblematic of our strength as a diverse but unified people.

However, there are elephants in the room.

First, non-indigenous fishers might feel that every time a commercial licence is retired, bought by the federal government and given to a first nation, there will be fewer non-indigenous fishers, and perhaps their scenic coastal towns will become good summer places for rich upper Canadians. Second, first nations might feel that their land was stolen, their resources monopolized, their livelihoods taken away. They might wonder how they are now being accused of not wanting to conserve lobster. They might wonder, as well, why there should be a limit on their livelihood.

Then there are the politicians who grapple with how to represent all their constituents, knowing that indigenous people form a small proportion of their voters. So many people blame the government, and that’s a problem because government is a force of good. There are many intelligent, hard-working people in the Department of Fisheries and Oceans.

How, then, do we reconcile these diverse interests?

It is true that many people living in coastal communities in Atlantic Canada were poor well into the 20th century. It is also true that the Maritimes form the three poorest provinces in Canada. However, it is not true that everyone has been historically marginalized. The most disadvantaged have been the Mi’kmaq, Maliseet, and Passamaquoddy.

Let me give you an example of how that happened. The Mi’kmaq are historically a fishing people. Why, then, is Shubenacadie not on the coast where that community was originally located? It's because coastal areas south of the Shubenacadie River in Nova Scotia were only for white settlers. The Mi’kmaq became refugees in their own land. The Acadia band in southwest Nova was a creation of this diaspora, formed in 1960, but they were placed far away from the sea.

Did the treaties they signed with the British Crown not protect them? The Mi’kmaq and the Maliseet signed six treaties with the British Crown between 1725 and 1779. The treaties were how the British hoped to integrate indigenous people into the common law, making coexistence possible. After 1783, colonial and then federal governments dismissed the treaties as having no legal validity. The Mi’kmaq and the Maliseet, however, remembered the treaties. Why? It was because governments had worked to marginalize them economically, socially and politically. The Mi’kmaq and the Maliseet remembered the treaties because they were a means to maintain a semblance of their own identity. By the early 20th century, they came to identify principally not as Canadian, but through their treaty relationship.

When my family moved to Nova Scotia in 1993, there were already problems in the lobster fishery in Yarmouth. Both the government and the Mi’kmaq believed that the courts were the only way to resolve the issue, and lawyers on both sides wanted the case to be decided by the Supreme Court of Canada.

Both indigenous people and non-indigenous fishers are trying to maintain their historical relationship to their communities, to maintain their families and their culture. On the one hand, we have fishers who have a private right to the fishery through the licensing system. However, the Mi’kmaq don’t have a private right to their licences; the community does. They also fish through the food fishery program.

One question you might ask is what that right to the food fishery program means and why the first nations may want to exercise that right. The other question to ask is why Shubenacadie/Indian Brook is an issue. An examination of the council members today suggests they are mostly young, and perhaps part of a generation who felt the sting of discrimination at their local high school in the 1990s. You need to understand their history and how they think about their history to understand why they do what they do.

Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you for that.

We'll now go to our questioning.

We'll start with the Conservative Party. I'll go to you, Mr. Bragdon. We didn't receive any list of the order of speakers or questioners, so I'll leave that up to you. You have six minutes or less, please.

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

Thank you, Mr. Chair.

Thank you to each of the witnesses who've joined us. This evening provided valuable insight and testimony, and we appreciate the input you've brought to the committee.

As you know, we find ourselves in a situation that didn't emerge overnight. This is something that has been ongoing for a number of years, and recently, obviously, has escalated to a very serious point in Nova Scotia. There are a lot of misunderstandings from all sides.

I think what's happening is that, throughout this process, there seems to be a whole element of people who have felt like perhaps they haven't been properly consulted or haven't been part of the process. There seems to have been an absence on the part of the minister to be actively and proactively involved in coming to a solution sooner than now.

We're hearing compelling testimony from indigenous representatives and folks from the indigenous community, which is definitely shedding light on their right to fish. We're also hearing from representatives of the commercial fishery, talking about their concerns about being left out of the process.

I would just ask this of each of the witnesses who have spoken here this evening: Do you feel there is something that could have been done differently, or could be done better, to help us get to a peaceful resolution and make sure all interested parties are part of a solution?

I'll start with you, Mr. Wicken.

[William Craig Wicken]

I'll be short, and then I'll pass it over to the other panellists.

What I would say in response is partly because I testified in Marshall. The lawyers for the federal government at that point, as well as the federal government, did not believe they would lose that case at the Supreme Court of Canada. What happened from that is there wasn't a plan, and I think we've heard that through other witnesses. That created chaos, particularly in New Brunswick, but also in Yarmouth.

That, I think, provided the bad context—and not a good context—for the public to view what was going on, as well as the non-indigenous fishers. That's really not fair in terms of both the Mi'kmaq people and the non-indigenous fishers.

I'll pass it over to the other panellists.

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

Ms. Metallic or Mr. Rodon, go ahead.

[Thierry Rodon]

Co-management brings together all stakeholders and can certainly prevent this type of conflict. A sort of nation-to-nation relationship is forged, which has great symbolic significance.

In this case, the federal government and the Mi'Kmaq nation must engage in negotiations. That does not prevent the establishment of certain co-management groups, which we see across Canada, especially in the north. However, the federal government generally appoints people who participate in the co-management of the resource. In the case of co-management with a first nation, the federal government could appoint non-indigenous fishers, for example. That would result in a forum where everyone could talk to one another, which would make it easier to resolve problems that might arise.

I spoke to you about the Moisie River management council. In that case, Innu representatives, representatives of the ZEC (zone d'exploitation contrôlée)—the controlled harvesting zone, or public land—and representatives of outfitters were present to negotiate access to salmon, the fishing practices and the protection of salmon. I believe it isa model that would respect Mi'Kmaq rights while ensuring social peace, create an understanding of the issues and make it possible for commercial fishers to also earn a living without feeling threatened. That is what seems to be missing so far.

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

Thank you, Mr. Rodon.

Ms. Metallic, would you like to answer that? I'm not sure what we have left for time, but we'd love to hear from you on this as well.

[Prof. Naiomi Metallic]

Sure.

[The Chair, Liberal, Ken McDonald]

Before you start, Ms. Metallic, could you please get the microphone as close to your mouth as possible, because the interpreters were having a problem?

[Prof. Naiomi Metallic]

Yes.

I think some key messaging going forward is really important, and that's where I feel things could have been improved in terms of what has happened before. These are complex issues, but letting some strong voices from the government explain that these are constitutional rights that have to be balanced, instead of perhaps letting a narrative unfold in the media that allows people to question whether indigenous people have the right to a moderate livelihood, or letting people think that perhaps they're violating the rule of law by exercising such rights. I think the better messaging is that these rights exist. They are complex, but the law gives us various tools to make sure that everyone's rights and interests are recognized and accorded. I think some key messaging would be really important in moving forward on this.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Bragdon.

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

Again, if you want a particular witness to answer, please identify them so we're not left in dead air. Thank you.

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

My question is going to be for Ms. Metallic.

Before I do that, I want to recognize William Wicken for his books on Mi'kmaq history and all he's shared over the years. My only regret is that we only got to hear him for five minutes. I know he could give an hour-long lecture on this, and it would have been absolutely amazing and for the betterment of this whole committee.

With that said, I want to talk a little bit, Ms. Metallic, about the law. You mentioned the honour of the Crown. We've heard some witness testimony that says the Mi'kmaq have gotten all of these licences from the Marshall response initiative. Do you believe that the honour of the Crown would be met, in your personal opinion, by that initiative and that the minister could regulate the fisheries as is under those licences?

[Prof. Naiomi Metallic]

As set out in our paper, we conclude that the Marshall response initiative would not meet the requirement of the test set out by the Supreme Court of Canada. In particular, the second branch, on which I didn't get to spend as much time as I wanted, requires the government giving a priority to the right, consulting with the indigenous group, but also recognizing that indigenous groups have a right to manage their rights as well, and reflecting that in how priority is given.

On my assessment of the Marshall response initiative, first of all, it would be problematic for the government to say this meets the Marshall decision, when the negotiators were very clear, in negotiating those agreements, that they were not about meeting a moderate livelihood right. So, to make those representations and then 20 years later resile from them does not seem to be in keeping with the honour of the Crown.

In addition to that, even if you could make the argument that they do address this or they could be considered a justified infringement, there's no evidence, really, in terms of priorities, whether or not it met priorities when it was originally negotiated in 2000. The court talks about a proportionate share based on the population of the community as well as the importance of the resource to the indigenous group. So, there is that issue that it may not have met priority, but in 20 years since, there has not been any addition or amendment to those, so we know that they certainly don't meet the current needs of the community in terms of population and need. That would be another thing that would detract from the current Marshall response initiative meeting that. There has to be more.

I believe that licences and questions about seasons are things that have to be worked out through an honest negotiation and discussion. Going to Monsieur Rodon's earlier point about the right to self-government, that's implied also from Marshall II. Marshall II talks about these rights being exercised with communal authority, and that implies a right to govern and manage. The government has to be respectful of that. Yes, they also have the right to manage. I think Monsieur Rodon is right on with respect to this idea of co-management, and it's part of working this out.

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

Thank you for that.

I have another question. I've heard a lot of testimony that we can't have a separate Mi'kmaq fishery outside of the Fisheries Act. I'm confused about that, because within our Fisheries Act, in 2019, section 2.3 says: “This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”

Do you think that our Fisheries Act is recognizing the legal plurality of the Mi'kmaq to govern their own fisheries as part of this?

[Prof. Naiomi Metallic]

Yes, I think that provision is great because it's a recognition to the minister that she has to be aware of section 35 rights, but that's the state of the law anyway. The minister does have to exercise her discretion and jurisdiction, and so does Parliament, in keeping with recognized section 35 rights.

It is possible. The Supreme Court provided several guidelines we can look to, which also talk about how it will depend on what sort of species we may be speaking about in terms of how Canada can regulate, but there are no hard and fast rules that have been supplied by the courts. They are more flexible and require more thoughtfulness and more analysis in terms of the competing demands, but also in terms of trying to give some priority to section 35 rights.

This could involve a right that is potentially outside of a closed fishery, but again, it requires discussion, analysis and speaking together. There hasn't been enough of that.

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

Thank you.

Bill Wicken, my question is for you. Can you tell me what happened in 1928 to the Mi'kmaq rights? Was that ever overturned?

[William Craig Wicken]

Thanks for the question.

This is the Gabriel Sylliboy case I think you're referring to, in which Judge Patterson of the county court in Nova Scotia, on Cape Breton Island, ruled against Grand Chief Gabriel Sylliboy, who had been charged with hunting muskrat out of season. The upshot of that decision became seminal in terms of understanding Mi'kmaq treaty rights, whether there was a treaty or not, and whether it was valid legally. That continued up until the 1980s, with the Supreme Court decision in 1985.

The other point about that, which is important to remember, is that the Mi'kmaq never surrendered, through any of their treaties, title to their land. They were told in the 1970s and 1980s that the title no longer existed because it had been “superseded by law”.

Part of the issue for many Mi'kmaq people and Maliseet people across Atlantic Canada is that they still have title to their land, and there is a sense that they have been marginalized and that their resources have been taken away without their consent. When I look at the situation today and even back to the 1990s, that is part of what drives their understanding of their own history and of what you could call their historical consciousness.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Battiste. You've gone over your time.

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