Fisheries Committee on Nov. 2nd, 2020

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

First, I would like to thank all the witnesses who are with us today.

This committee would like to make recommendations and work together to find solutions. We have not heard much about co-management, a subject that Mr. Rodon is an expert on.

The Uashat Mak Mani-Utenam live in my riding, and that is where the Moisie River is located. I would like Mr. Rodon to tell us about co-management and give concrete examples of co-management cases that have been successful in the area.

[Thierry Rodon]

Co-management has existed in Canada since 1978. Parks Canada first used the term for the management of national parks on land claimed by indigenous peoples. This was then included in all land claims agreements that were signed in the north. In fact, this began with the James Bay and Northern Quebec Agreement, which included co-management bodies. Since then, all agreements have included the co-management of land and natural resources. It is a model that has existed for a very long time.

Obviously, this model is used more in the north, but it is used elsewhere as well. I gave the example of the management council for the Moisie River, or the Mishta-shipu. The purpose of this council, which operated for five or six years, was to resolve a conflict with salmon fishing. However, there was also a very serious conflict involving the death of two Innu people. The community had always believed that they were killed by fisheries officers. It was an underlying conflict. Many Innu fishers were trying to regain control of the salmon and the activities of the clubs, among other things. Finally, they settled on this solution because they had to make space for Innu subsistence fishing, even though the Moisie River was used entirely by public and private clubs. The solution was arrived at with the help of the Quebec government in the late 1990s. This made it possible to resolve a conflict.

I worked on this when writing my doctoral thesis. There are many examples where co-management has solved conflicts related to resource management and access. I am thinking in particular of the Beverly and Qamanirjuaq Caribou Management Board. There was an example in Kénogami also.

This model works well, but it is not perfect. Clearly, it always takes goodwill. Co-management works just like any entity created by people: it requires the will to work together to find solutions together. The advantage of this formula is that it brings together in one room all the people involved and forces them to find solutions. Naturally, this takes time. In any event, in the case of a conflict like the current one involving the Mi'Kmaq, co-management would result in solutions.

When I talk about co-management, I am not talking about consultation. Fisheries and Oceans Canada has many consultative bodies that are in contact with the users of the resource, such as commercial fishers. On the North Shore, the Innu are among them. However, only recommendations are made to Fisheries and Oceans Canada. With co-management there is real influence and the opportunity to take action. Sometimes recommendations are all that comes of it, but they are made directly to the Minister and not to an official. In some cases, a decision is made. There are a number of co-management committees in Canada that decide how resources are shared. There is one in Nunavut working on wildlife management and it has the authority to make decisions.

This exists in Canada and, therefore, we can find solutions. There are many models. In fact, this does not exist in Canada alone. Co-management is used a great deal by the state and local populations in Africa, for example, to manage protected areas. It is a model that works. There are no guarantees. However, if you are asking for my opinion, based on my experience I would say that it makes it possible to sometimes resolve difficult conflicts.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you.

On another note, I know that time can be an issue. There can be difficulties depending on whether or not the stakeholders want to collaborate.

In the short term, if we implement co-management, could it lower social tensions in the area right from the start?

[Thierry Rodon]

Co-management only works if all parties are at the table. If some parties are excluded, there definitely can be no progress. Even if they are there on behalf of Canada, commercial fishers must be there nonetheless. There will be no solution without them. Obviously, the Mi'Kmaq will also have to be there.

Then, as is the case for all committees, including parliamentary committees, a synergy develops after a certain period of time. Or at least that is the hope.

As I demonstrated in my study, co-management often does not work because of external issues. For example, in Nunavut there was one case where the co-management committee gave Nunavut fishers a turbo quota, but the federal government intervened and subsequently gave this quota to Newfoundland and Labrador for political reasons. In such cases, co-management does not work. Committees must arrive at a consensus themselves and then—

[The Chair, Liberal, Ken McDonald]

Thank you, Professor Rodon. The time has more than expired.

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

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

Thank you, Mr. Chair. I want to thank all of the witnesses for their important testimony.

Chancellor Metallic, I know you weren't finished in your opening statement, so I'm going to try to give you some time to finish that, but I want to thank you for talking about Marshall, Gladstone and Sparrow. Ahousaht et al is a court case that's important to where I live.

I'm in Muchalaht territory. Their right to catch and sell fish is particularly related to wild Pacific salmon. Do you feel the government has had a mandate to not just accommodate the rights of these indigenous fishers and communities, but to implement these court decisions?

[Prof. Naiomi Metallic]

Forgive me if I don't get the question. I may get you to reframe it. I was involved when I was a lawyer in a court case in 2013 and represented 12 of the 13 Mi'kmaq first nations from Nova Scotia in going to court. At that time, because they had been at the negotiation table seeking over and over again to have the negotiators come forward with a mandate to discuss implementation of a moderate livelihood fishery, we brought the court case. Eventually it ended up being put on hold so that negotiations could continue, but unfortunately here we are, seven years later.

Have I answered your question about a mandate?

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

Let me give you an example. Judge Garson, who oversaw the Ahousaht court case here in British Columbia, in 2017, eight years after the court decision of 2009—the Government of Canada appealed that decision—scolded the Government of Canada for knowingly sending their negotiators to the table without a mandate. Do you feel that the Government of Canada is going to the table with a genuine goal of accommodating the right, or do you believe that they're constantly going to court to diminish and restrict the rights of indigenous peoples?

[Prof. Naiomi Metallic]

There was a long period of time, I believe, when the government did not have a genuine mandate in going to the table. I hope this is part of it and that perhaps we might see some change.

What I worry about is government looking for quick solutions, which I think is what the Marshall response initiative was, even though they told the indigenous group it wasn't. This is a treaty relationship, and I think there needs to be a different way of seeing how this works. You can't just throw money at something. That's what the Marshall response initiative was. I don't know as much, perhaps, about the rights recognition initiative, but from what I've heard and what I've been able to read about it, I worry that we're just simply going to throw some money at it. Buy some more licences, buy some more gear, and that's it.

As Professor Rodon was saying, and I'm saying too, it's about a relationship and about recognizing that indigenous people want more than that. They want a moderate livelihood, but they also want to be a part of this as well. There's this governing right that they have with respect to the moderate livelihood right. They want to be able to have a say in terms of the management of this right. I think that there could be a much more meaningful approach taken.

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

Can you elaborate on that? Can you talk about what that meaningful approach could look like?

[Prof. Naiomi Metallic]

I think co-management is a really interesting approach. I'm really interested in what Professor Rodon is saying. We also see examples of that in some of the modern-day treaties. I know that Yukon and other groups also have co-management regimes, as do the Haida and Haida Gwaii. Those are some interesting models.

I think, too, it's not seeing it as a one-time transaction. This is just going to keep going. This is an issue that needs to be looked at regularly. Is it meeting the moderate livelihood needs? Are we respecting the views of the Mi'kmaq on this? It's continuing to work together, because I think it is really a relationship and not something that's just going to go away.

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

That's great feedback.

I know that right now the government's approach has been to spend on lawyers. For example, on the Ahousaht et al court case, they spent $19 million just on legal fees. I think we need to see the government break away from that.

We received correspondence at this committee from Regional Chief Kevin Hart from the Assembly of First Nations calling for the UN special rapporteur on the rights of indigenous people to investigate the government's failure to uphold the rule of law and protect indigenous fishers. Do you agree with the AFN's assessment that there are systemic racism problems within the Department of Fisheries and Oceans?

I'll stick with you still, Chancellor Metallic, if that's okay.

[Prof. Naiomi Metallic]

I haven't read the letter, but certainly there is some concern that perhaps the government has not been coming out clearly with messaging in terms of what these rights are. It's letting people try to take the law into their own hands and allowing narratives that make it sound like the indigenous people are not following the rule of law, when it's in fact Canada that hasn't been implementing a decision that is over 20 years old. I do think there are legitimate concerns in that. The role of the RCMP in this, as well, is questionable.

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

Okay.

How much time do I have, Mr. Chair?

[The Chair, Liberal, Ken McDonald]

You have about 10 seconds, so I don't think you'll have a question in that length of time.

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

All right. Okay, thanks.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Johns.

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

[John Williamson, Conservative, New Brunswick Southwest, NB]

Thank you very much, Mr. Chair. I think this is a really interesting discussion. Our witnesses have all been very good in presenting different perspectives.

My belief, though, is that we're in a state of debating Marshall and other first nations treaty rights. I think Professor Metallic has a very good understanding of the rights and the obligations, and the need to work together and consult.

Professor Rodon, you are focusing on first nations. Today, we are discussing the Atlantic fisheries. I think that you are somewhat mistaken when you say that the Supreme Court of Canada was too restrictive in the Marshall decision.

Professor Wicken, I think you're also offering a pretty straight-up view of the decisions to date. As Professor Metallic has said, the challenge or the problem is that there's no one taking the lead on the dialogue and speaking to resolve this situation. That, I think, is the real problem. It's the inaction of the federal government. Professor Metallic just said it was Canada. Again, that responsibility is the federal government's, and in particular, the federal minister's. We have a federal minister who has been hiding from traditional fishers on the east coast. She has been hiding from first nations communities, and now she's hiding from this committee.

Mr. Chair, I'm going to table, in both official languages, a motion that the clerk is receiving right now. It reads as follows:

That the committee request the Minister of Fisheries, Oceans and the Canadian Coast Guard to appear for no fewer than two hours as a witness for the committee's current study titled “Implementation of Mi'Kmaq Treaty Fishing Rights to Support a Moderate Livelihood”, and;

That the committee suspend future meetings of its current study until the Minister appears as requested, with the department officials requested.

Chair, I table that motion to this committee so that we can hear from the Minister of Fisheries and her officials to begin to get some answers from the Government of Canada on this important topic and so that the minister's hiding will finally end.

[The Chair, Liberal, Ken McDonald]

Okay, we've heard the motion.

Mr. Calkins, you had your hand up.

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

Thank you, Chair.

I want to thank my colleague for bringing forward this motion. I offer my regrets to the witnesses who are before the committee today, but we're now in our fourth meeting, I believe, on this particular issue. I have been a member of Parliament for almost 15 years and a member of this committee for a number of those, and this is the very first time I can recall the committee undertaking a study without having department officials lead off by giving the committee members a lay of the land on what the issues before the government were.

Furthermore, we have no assurances at all that the minister has any intention of actually coming to this committee and providing us with a sense of what the government wants or where the government needs to go. She has not asked the committee in any way, shape or form to do any of this work for her. This was brought on by a member of the committee, and it is that member's right to do so. We are basically, for lack of a better term, fishing in the dark as to where this could possibly end up and where it needs to go.

We have a very untenable situation, in that the courts have indicated that the Mi'kmaq and others have certain rights to access the fishery. Nobody at this committee is denying that. We also have an untenable situation for fishers who are following the laws and regulations put down by the Department of Fisheries and Oceans to access their livelihoods, as has been rightly pointed out by some of the witnesses who are here today.

Even Professor Rodon has basically said the government hasn't come to the table yet. The professor is exactly right. The government hasn't even been at this committee table. For those who are watching these committee proceedings right now, I don't recall a committee ever starting a study without first consulting with department officials to set the groundwork, even for studies that are not controversial. Studies that are just there to provide the basis of information and understanding about better governance usually start with departmental officials. Here we have a potentially explosive situation on the ground and on the water off our eastern coast, and this committee hasn't been given the benefit of the doubt.

It's not a slight against the clerk or the chair, but on the motion we're bringing forward right now as Conservatives at this committee, we would like very much to have the departmental officials come in with the minister to let us know exactly what's happened so we can ask the right questions of the witnesses and we can get a sense of the debate going on at government tables. I know they can't disclose all the information, but I feel that this committee is basically floundering in its study right now. It's not because we don't have good witnesses and it's not because we're not asking good questions, but we're actually not able to direct the committee's actions in a way that will provide useful feedback for the government. That's the committee's primary responsibility here: to provide useful recommendations and feedback on behalf of all Canadians so we can have a sense of what questions to ask and what responses would be beneficial.

Mr. Chair, I would encourage the members of the committee who are here to take that responsibility seriously, to take this study very seriously and to support the motion my colleague has moved. As I said, I've been a member of this committee for the better part of 10 years, I'm guessing, and I have never, ever, seen a study start off without at least the departmental officials, and I've never seen a minister unwilling to come to talk to the committee about these issues.

Through you, Mr. Chair, I would ask my colleagues at the committee to support this motion. I want to hear from the minister. I want to know the minister's sense of the issues on the ground so that when more witnesses come, I'll be able to do my job better as a member of Parliament.

I want to ask the department officials some very pointed and tough questions about how they're managing this particular situation. I want to hear from those departmental officials on how they manage the lobster fishery so that I can put that in context with the other witnesses who come before the committee.

Canadians deserve better results and better responses from this committee's work. We can give them those better responses if we do things in a bit of a better order. I support my colleague's motion wholeheartedly.

[The Chair, Liberal, Ken McDonald]

Thank you.

Mr. Battiste is next.

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

When we started this discussion, I put forward a motion. It was the Conservative Party and the Bloc Québécois who expanded it to include indigenous knowledge holders and enforcement and the RCMP. We took something that was focused and expanded it, because you needed to see this.

However, I object to the notion that we need to hear from the minister or the fisheries department. What we are talking about in essence is law, Mi'kmaq law. The witnesses we have today are excellent. They have been relied on in court testimony and they're amazing.

The Conservatives said that we're fishing in the dark. Well, the witnesses we have called are giving you a spotlight.

Can we do this discussion during committee business and allow the valuable testimony we're going to hear to move forward, before we talk about when we bring the minister forward? As far as I know, there is a notion to bring her here before November 30, but I would like to get to the witnesses and the expanded group of witnesses who were asked for by both the Conservatives and the Bloc when this motion came forward initially. I would like to do so in a time that gives our committee members a chance to hear from these expert witnesses.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Battiste.

We will now go to Mr. Arnold.

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

Thank you, Mr. Chair.

I'm happy that Mr. Williamson has brought this motion forward. In my five years of being on the fisheries committee, as Mr. Calkins stated, I don't ever recall not having officials come in to give us the background, the history, the reasons and the place on the ground where we are at this point in time, so that we can understand better the information we've received from witnesses.

This certainly isn't to detract from the three witnesses we have today. This is something the committee should have hashed out before we started off on this path, so that we have some groundwork, a foundation to work from, so that we know the reasoning behind the Marshall I and Marshall II positions. How did we go 20 years...? Some say there's been no movement, while some say there has been movement on those decisions. However, without knowing what the department has done, without hearing from the minister on what's taking place at the current time, I don't believe there's any way we can move forward as this committee to make reasonable recommendations for resolving this issue as quickly as possible so that everyone can get back to doing what they really want to do.

I fully support the idea that we need to hear from the department, from the officials and the minister, so that we can better understand where we need to move on from at this point. Without that, there's so much that's up in the air. We've agreed that this is an urgent and emerging study, but who has the responsibility to define what a moderate livelihood is? Is that the government's responsibility? Is it the Mi'kmaq band's responsibility to define that? Is it the people of Canada? Who should have a say in that?

There are many people's lives at stake that we, as a dozen committee members, are expected to rule on, or at least make recommendations on. We need to have the basis to make those decisions.

Thank you, Mr. Chair.

[The Chair, Liberal, Ken McDonald]

Thank you.

Madame Gill is next.