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—