Fisheries Committee on Nov. 16th, 2020

[Bobby Morrissey, Liberal, Egmont, PE]

I'll go back to your comment that it would be problematic. Therefore, if DFO were to remove the fishing licence, access to the fishery that occurred, would it not have any negative impact on the continued negotiations on moderate? Could DFO remove those? The only part was moderate livelihood. There was no onus on the court decision to do that. The onus was on allowing a moderate livelihood. Would I be correct in assuming that those licences could be removed from the equation?

[Prof. Naiomi Metallic]

I feel it's comparing apples and oranges.

We're talking about a moderate livelihood treaty right and you're talking about commercial access. The government presented it as just being commercial access at the time. Sure, maybe it could potentially do that. It's a separate question from the moderate livelihood right, but the government had to—

[Bobby Morrissey, Liberal, Egmont, PE]

So you do acknowledge it's separate and [Inaudible—Editor] is not bound by it.

[The Chair, Liberal, Ken McDonald]

Sorry, Mr. Morrissey, but your time is up.

We'll go to Madam Gill for three minutes or less, please

[Marilène Gill, Bloc, Manicouagan, QC]

Mr. Chair, I would like to ask Mr. Rodon another question, again on co-management.

I would like to thank him for giving an example from our region. With the Innu on the North Shore, we can see that the tensions are really not the same and that people are able to discuss them now. Let's hope that this will always be the case.

I apologize, because I don't like to ask for speculation, but I would still like to hear what you have to say about the following, because you have solutions. Right now, if you were the Minister of Fisheries and Oceans, what would be the first steps that you would take to address this urgent situation, to mitigate the current impact and to find a solution, given that the department will not be negotiating the legal issues?

I humbly ask for your advice. I agree that neither you nor I are ministers.

[Thierry Rodon]

You are putting a lot on my shoulders.

One of the only political scientists to have gone into politics has not always been successful.

Without putting me in the shoes of a minister, action is clearly needed, as I said. In fact, Fisheries and Oceans Canada's inaction has been a big problem, as I have said several times and as has been noted by many people, because of the tensions that have been raised. When tensions rise and crime is committed, clearly, it always becomes much more difficult to negotiate.

I think there is always a chance and I come back to that. They have appointed a negotiator, but I think they could come up with proposals to make sure they have sound management of the resource. We have to recognize the constitutional right of indigenous peoples to have access to resources.

I began my opening remarks by saying that in fact, the history of indigenous peoples in Canada is a history of dispossessing them of their access to resources. It is very much marked by that. Basically, at the heart of these tensions, we see a player who had a central role being eliminated and wanting his protected rights back. This is where it is important for the government to be present, precisely to avoid tensions. There are solutions.

[Marilène Gill, Bloc, Manicouagan, QC]

Given a co-management framework, can the stakeholders start the process without the government, without government leadership?

[Thierry Rodon]

Yes, they can certainly start the process. Some examples of co-management associations have come out of major conflicts. The users made that decision. That said, since the government is responsible for regulation, it must clearly be at the table at some point.

Community leaders could actually agree to find a solution to ensure that the resource is well managed and then provide Fisheries and Oceans Canada with proposals, for example.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you very much.

[The Chair, Liberal, Ken McDonald]

Thank you, Madam Gill.

We'll now go to Mr. Johns.

Mr. Johns, I want to remind you to put the microphone a bit closer to your mouth. We're having trouble getting the interpretation.

Go ahead, Mr. Johns, for three minutes or less.

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

Thanks, Mr. Chair.

I agree with Mr. Wicken that there are some fantastic people working in the Department of Fisheries and Oceans, but we've seen a repeated set of biases against indigenous peoples that inform decision-makers and the government.

Ms. Metallic, can you speak to whether you see systemic racism within the Department of Fisheries and Oceans and how that's playing out for indigenous people when it comes to fisheries?

[Prof. Naiomi Metallic]

I am not doing a study on the ground, but I think the lack of implementation by Canada writ large of moderate livelihood rights is a problem. That it goes down to the enforcement arm of the state is another aspect of that problem. It does seem that those at the top and the people who are enforcing the law are not recognizing section 35 rights with respect to a moderate livelihood. Yes, there was access to the commercial fishery post-Marshall, but that hasn't really been informed by or hasn't looked at what's actually required under Supreme Court of Canada cases.

I don't know if it's active anti-indigenous animus, but it's certainly about not knowing the law or following the law or respecting the heart of the law. I think that's a really big problem and it needs to change.

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

Do you feel the implementation of the United Nations Declaration on the Rights of Indigenous Peoples in Canada would help avoid or exacerbate fisheries issues in the future?

[Prof. Naiomi Metallic]

I think it would help, but why not implement section 35? It's in our Constitution. Some people say UNDRIP is aspirational. These are decisions from the Supreme Court of Canada, from our highest court. It's the law. We could start there. UNDRIP would help that, but first and foremost it's about section 35.

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

You talk about implementing the court's decisions. We frequently see the government lose in court or get tested in court and the first thing they do is appeal. Do you not see that as systemic racism? They appeal at every opportunity.

[Prof. Naiomi Metallic]

There have been many instances where government has appealed. I guess in some respects that seems to be viewed as par for the course. I will note that in 2017 the government put forth litigation guidelines or standards that are supposed to reduce that.

I have been a litigator. As somebody who has read many Supreme Court of Canada cases, I've seen that government will often put forward positions that make you wonder if they are really facilitating reconciliation or decolonization.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Johns.

That clews up the first half of our committee discussions for today.

I want to thank the three witnesses for their patience and indulgence, for coming back and for helping to educate me and the committee on this very important issue.

We'll say goodbye to our witnesses and suspend for a moment, until we set up our next panel.

Thank you.

[The Chair, Liberal, Ken McDonald]

Welcome back. We're going to get started.

Would everyone please click on their screen in the top right-hand corner and ensure they are on gallery view. With this view you should be able to see all the participants in a grid view.

I would like to repeat a few comments for the benefit of our new witnesses.

Before speaking, please wait until I recognize you by name. When you are ready to speak, click on the microphone icon to activate your mike. I remind everyone that all comments should be addressed through the chair.

Interpretation in this video conference will work very much like it does in a regular committee meeting. You have the choice at the bottom of your screen of floor, English or French. When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute.

I would now like to welcome our witnesses in the second panel. We have Chief George Ginnish from the Eel Ground First Nation, chief executive officer, North Shore Micmac District Council. We also have Chief Darlene Bernard, from the Lennox Island First Nation.

We will now go to opening remarks of five minutes or less. Chief Ginnish will go first.

[Chief George Ginnish, Chief Executive Officer, North Shore Mi’gmaq District Council, Eel Ground First Nation]

Thank you, Mr. Chair.

Good evening. My name is Chief George Ginnish. I am the chief of the Natoaganeg First Nation and I co-chair Mi'gmawe'l Tplu'taqnn, which is the organization of our Mi'kmaq first nations in New Brunswick. I have been the chief of my community since 1996 and I am speaking to you today from Mi'kma'ki, the unceded and unsurrendered territory of the Mi'kmaq people.

Mi'kmaq are signatories to peace and friendship treaties with the British Crown, of which Canada is now a beneficiary. Our ancestors negotiated treaties in which they were promised that we would be allowed to continue to hunt and fish, as we had for thousands of years, and to trade in these goods. Signing these agreements was intended to bring a peaceful relationship between our people and yours. Unfortunately, this has not been the case. DFO rules have expressly been designed to systemically exclude us from the fishery.

We had hoped that the Marshall decision would usher in a new era of peace and prosperity for our communities. We hoped that we would be able to work together to implement our right to a moderate livelihood in a way that was respectful of our rights as a self-governing people and in accordance with Mi'kmaq laws. Again, this has not been the case. Instead of working to implement the treaties, the federal government chose a policy response to a court decision, known as the Marshall response initiative.

Under the Marshall agreements, instead of implementing a treaty-based fishery, DFO offered funding to bands to purchase licences, vessels and gear from existing fishers so that we could participate in the existing commercial fishery under DFO's rules. This was designed to appease non-indigenous fishers, not implement Mi'kmaq rights. While some Mi'kmaq communities refused to sign, many communities, impoverished and long denied any access to fisheries, felt compelled to sign these one-sided agreements.

There were significant inequities in the funding and in the distribution of access to various fisheries. My community was specifically excluded from access to the lucrative snow crab fishery, access that all of our neighbouring Mi'kmaq communities in northern New Brunswick enjoy. Some communities also received much higher levels of funding per capita than others.

We were told that these were interim measures, that the inequalities would be rectified, and that our rights would be implemented through a trilateral negotiation tables. A table was established in New Brunswick in 2007-08. For the next decade we made little progress as DFO refused to negotiate. This was supposed to change in 2017 when the federal government came to our table with a new fisheries mandate and a new negotiator.

When our chiefs first met with the newly appointed federal negotiator, Jim Jones, in December 2017 we made clear that we did not want this negotiation process to be a repeat of the Marshall response initiative. We wanted DFO to negotiate with the Mi'kmaq as a collective and respect our need to implement our treaty rights in a way that was respectful of our right to self-determination and of our nation-to-nation relationship. Specifically, we wanted to work together to define and implement a moderate livelihood, to recognize the fact that a rights-based Mi'kmaq fishery must be self-governing and to provide access on a priority basis for our communities that have long been denied their rights.

Unfortunately, again this has not been the case. DFO came to the table with a mandate that they unilaterally developed. The mandate is to provide funding to purchase more commercial access and not to define and implement a true livelihood fishery. DFO has again sought to undermine and divide us as a collective and to negotiate agreements with individual bands.

Although they acknowledge that purchasing commercial access is inadequate to address a moderate livelihood, they refuse to explore other possible solutions. Everything the Mi'kmaq have put forward as a potential solution to the impasse has been rejected by DFO as being outside their mandate.

We have tried to express these concerns to a series of ministers, but they have fallen on deaf ears. Despite repeated requests, we have been unable to get a meeting with Minister Bernadette Jordan. In the responses that we do receive, she merely reiterates the same inflexible position that has already been heard at the table.

This needs to change. In collaboration with the Mi'kmaq, the Government of Canada needs to revisit and revise DFO's negotiation mandate. The mandate must recognize our right to self-determination, and it must recognize that a rights-based fishery must be self-governing in accordance with Mi'kmaq laws.

I thank you for listening and welcome any questions you may have later.

Wela'lin. Thank you.

[The Chair, Liberal, Ken McDonald]

Thank you, Chief Ginnish.

We'll now go to Chief Bernard for five minutes or less, please.

[Chief Darlene Bernard, Lennox Island First Nation]

I have a lot of notes, so can I use up the rest of his time? I don't know if he used five minutes or not.

I'll read quite quickly, but I'll try to be very clear.

Mr. Chairman, honourable committee members, ladies and gentlemen, thank you for inviting me to present today.

My name is Darlene Bernard, and I am the chief of the Lennox Island First Nation and one of the leaders of the Mi'kmaq of Epekwitk here in Mi'kma'ki. We are the beneficiaries of the constitutionally entrenched aboriginal and treaty rights in P.E.I.

I am not the first P.E.I. chief to present to this committee on this issue. My predecessor, Chief Charlie Sark, presented to this committee, which had a different composition and a different chair, almost 21 years ago. It is disconcerting that there has been no resolution in the two decades that have followed.

A day shy of 21 years and two months ago, the Supreme Court of Canada released the Marshall decision. It was a landmark day for my people, the Mi'kmaq. It confirmed what we have maintained for generations: that the treaties signed by our ancestors guaranteed our right to hunt, fish and gather to generate a moderate livelihood. Our fishing rights have been practised for millennia, were codified with the Crown 260 years ago, were entrenched in 1982 and were affirmed by the Supreme Court in 1999. The Mi'kmaq right to fish in support of a moderate livelihood is constitutional—the supreme law of the land in terms of Canadian law.

As was done immediately following Marshall, we have been engaging our community in discussions and the decision-making process with respect to the implementation of our treaty right to fish. We have always acknowledged that the exercise of the right would be regulated. We understand that when the Supreme Court affirmed our treaty right, it was confirmed that the Government of Canada would regulate the right. However, the ability to regulate is not unfettered. The high court outlined the purposes for which regulation was appropriate. Specifically, the livelihood fishery can only be regulated for purposes such as conservation and/or compelling and substantial public objectives. Any Crown attempt to regulate must be justified and must be consistent with the parameters set down by the Supreme Court of Canada, specifically in R. v. Sparrow and then later in R. v. Badger, which were referenced in Marshall. The ruling is clear. If the Crown is attempting regulation, it must justify the restrictions on the exercise of the treaty right as follows:

There must be a valid legislative objective, and it must be remembered that the objective of the department in setting out the particular regulations will be scrutinized.

The honour of the Crown must be upheld. The honour of the Crown is at stake in dealing with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified.

There must be as little infringement of the right as possible in order to effect the desired result. Further, the aboriginal group in question must be meaningfully consulted with respect to the regulation measures being implemented.

While the Mi'kmaq treaty right has been established, there is a heavy onus on the Crown to justify any limitations of that right. The minister cannot use her arbitrary discretion to limit the treaty right through regulation. Recognition and affirmation require sensitivity to and respect for the rights of aboriginal people on behalf of the government, courts and indeed all Canadians.

The Mi'kmaq people have lived in Epekwitk for 12,000 years, and our priority for the resources has always been and always will be inherently based on conservation. We are not looking to exploit the fisheries. For centuries, we have existed in accordance with the principle of netukulimk: taking what you need and leaving the rest for the next generation.

We have respect and gratitude for our resources. Any overfishing of a particular species in this country that has raised alarms over conservation has only happened as a result of post-colonial, non-indigenous commercial fishing. The Mi'kmaq have survived for thousands of years by embracing a sustainable approach to harvesting resources. It is hard to adequately convey the level of disrespect felt and offence taken when we read about those, including current members of Parliament, who are trying to thwart our constitutionally protected rights by making irresponsible assertions under the pretense of unfounded conservation arguments. The Mi'kmaq are the original stewards of our land and resources, and this respect for Mother Earth and what she gives us will live on in perpetuity.

It should also be noted that in late September, according to Dalhousie University research, there are currently no conservation concerns with the livelihood fishery.

I state to this committee that we need leadership and decision-making based on science and fact, not based on innuendo and fearmongering. It must all also be noted that if there were to be any issues regarding conservation, the privilege-based commercial fishery would be the first place where limitations would need to be explored, not the rights-based livelihood fishery.

I am not here to debate—

[The Chair, Liberal, Ken McDonald]

Thank you, Chief Bernard.

[Chief Darlene Bernard]

I'm not even half done.

[The Chair, Liberal, Ken McDonald]

You've gone a little bit over, actually.

I know you have an extra long statement. Committee members will be provided with your statement in both official languages if it hasn't already been done. Hopefully, some of the rest of the things you want to say will come out in the line of questioning. It is a five-minute time limit. Unfortunately, we have gone over.

Now, we'll go to our first questioner.

Mr. Calkins, you have six minutes or less, please.

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

Thank you, Chair. Thank you to the witnesses we're hearing from in this part of the committee meeting.

I have a question for both Chief Ginnish and Chief Bernard.

If you were in the negotiation room.... I don't want you to divulge any secrets in what you are trying to do or what you are trying to accomplish, but please help me understand. What is your definition of moderate livelihood?

I'll put it in context. We know that the fisheries have been set up for communal benefit, yet previous witnesses, including Ms. Metallic who was here just before you, said that there are individual acts that can be allowed within that context of communal benefits.

I'm just wondering if the moderate livelihood is for an individual who is fishing or if the moderate livelihood is a communal redistribution of that wealth, so that everybody in the band has a moderate livelihood from fishing.