Fisheries Committee on Nov. 16th, 2020

[Prof. Naiomi Metallic]

Okay. I think some of Monsieur Rodon's suggestions around co-management are really key. I think it's about the parties working together and talking together.

The legal context here is complicated, right? It's not black and white. That was in the article which I submitted to the committee. It's not black and white. The Supreme Court has this very complex test that requires the government to meet its fiduciary duty and the honour of the Crown, but it's not a checklist of what [Technical difficulty—Editor] It's about listening to each other. I think it's really recognizing that the Mi'kmaq people have an interest in not just the fish, but also around the management of this right as well, and in being treated as a nation and not simply a stakeholder. I think that's really key.

I think the other part of this is that you can't see this as a one-time thing: “Oh, we'll solve this; we'll throw some money at it, and it's going to go away.” It's about a relationship between two nations. It will grow and change, and it will continue to require nurturing that relationship and actually looking at things. What is a moderate livelihood in 2020 is going to be different from what is a moderate livelihood in 2030, and there's the role of the parties in that.

Various other factors can influence that, but those would be some of the key things.

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

When you talk about co-management—and I really appreciate that—and when we look at monitoring and enforcement of treaty fisheries, does DFO have that mandate if the nations have actually asserted their governance by passing their own regulations within their treaty fisheries management law? How does everyone move forward there in terms of with the department?

[Prof. Naiomi Metallic]

Well, I think by getting out of the mentality of one government enforces and the other one is not really a government and doesn't have any say in it. I think it's about working together to address mutual issues of concern.

There are some examples of this. Monsieur Rodon already gave some. I'm from the Listuguj Mi'gmaq First Nation, and we have had our own fisheries law since about the mid-nineties. We have our own Rangers program, so we have our own enforcement officers who go out in the water. This is not new. There are models out there to look at. That's what I would say.

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

We have heard about DFO obviously wanting to work more towards an aboriginal communal licence that could be made available, but that's inconsistent with the nature of their section 35 rights for the Sipekne'katik. What other viable option is available to the minister? We've heard that they've talked about section 4.1, which might be better suited to support the co-operation within the two parties.

Can you speak about some of the options around that in the common interests so they can exercise their right to a moderate living?

[Prof. Naiomi Metallic]

It's hard in sort of the abstract to give a lot of examples. Again, I think it goes back to talking through on probably a species by species.... Lobster might be different from shrimp, and various other species might be different, but it's about looking at what are the demands on the fisheries and honestly talking together about what are their conservation issues. It's not about what are the other demands on the fisheries from others. The court did say that Canada can also consider the interests of other fishers, but at the same time, it has to show some priority for the treaty rights.

It's hard to give a rule book, because it's not. It's a conversation, honestly talking to each other and listening and recognizing the Mi'kmaq interest and giving it priority. Also, recognizing the Mi'kmaq management or governance interest in this, too, is really key, because that's what the model for the last 20 years with the aboriginal communal fisheries licences under the fisheries regulations.... I mean, that was never set up to be a response to Marshall in the first place, but because it treated the Mi'kmaq exactly like any other stakeholder, that is a huge part of the problem.

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

How much time do I have, Mr. Chair?

[The Chair, Liberal, Ken McDonald]

You have one minute.

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

Professor Wicken, obviously this study is taking place after the Marshall decision came down 20 years ago. At the time, that committee found DFO was caught off guard. Do you think that right now DFO has been caught off guard in terms of preparing for the situation that's unfolded with the Sipekne'katik?

[William Craig Wicken]

I'm really not in a place to answer that type of question, Mr. Johns. I apologize. I'm just a historian. I can give you a historical perspective on that, but I can't answer contemporary questions like that.

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

Historically then, do you believe there's systemic racism in the Department of Fisheries and Oceans?

[William Craig Wicken]

First of all, I have to define what you mean by racism. I've already said in my opening statement that I think there are many good people within the Department of Fisheries and Oceans. I know that within the Government of Canada there are very good people, and some of them are listening today.

Whether or not there is seems to me to be something to address to the Mi'kmaq as well as to non-indigenous fishers.

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

Mr. Bragdon, do you want to—

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Johns. Your time has gone a little bit over.

If I don't hear any objection, I'm going to make an executive decision to do a full three-minute round for all four parties to have three minutes each before we finish with this group of witnesses.

I'm not hearing any objection.

Mr. Arnold, you have three minutes or less, please.

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

Thank you, Mr. Chair.

Thank you to the witnesses for coming back today.

I'll start with Ms. Metallic.

DFO determines fishing season dates that stipulate season openings and closings for species including lobster. Do these dates represent an infringement on aboriginal treaty rights?

[Prof. Naiomi Metallic]

Yes, they can. It depends. That's what the Supreme Court of Canada said in the Marshall decision. With respect to Marshall and the dates that were set, he was fishing outside of closed fishing seasons and was found to be in violation. So absolutely, but again, it goes back to looking at species by species, what the issues are and what the conservation concerns are, so it's not a yes or no answer.

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

Thank you.

In what has become known as Marshall II, in paragraph 6, the Supreme Court states, “In a series of important decisions commencing with the R. v. Sparrow [1990] 1 S.C.R. 1075, which arose in the context of the west coast fishery, this Court affirmed that s. 35 aboriginal and treaty rights are subject to regulation....” In paragraph 61 of the Marshall decision, Justice Binnie for the majority stated, “Catch limits that could reasonably expected to produce a moderate livelihood for individual Mi'kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right.”

Do you agree, based on the Marshall case, that DFO has the right to regulate the fishery for both indigenous and non-indigenous commercial fishers, including those seeking a moderate livelihood?

[Prof. Naiomi Metallic]

There is, but I'll point you to the article that I provided to the committee that “regulate” doesn't mean “regulate” in the way that the Crown can unilaterally do whatever it wants. My article sets out how the various Supreme Court of Canada decisions from Sparrow to Gladstone to Badger to Marshall set out a very detailed process about how that regulation with respect to aboriginal and treaty rights is supposed to happen.

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

Should the fishery eventually result in legal pluralism here with more than one governing body, how should the Canadian government or DFO and first nations resolve the differences of law, regulations and policy?

[Prof. Naiomi Metallic]

They can do it by negotiating with each other. I think that would be the first thing. I don't think we would want to resort to the courts. It works okay. It can be bumpy at times, but federalism exists in Canada. That's how the federal government and the provincial governments work things out for the most part, usually trying to negotiate, so it's the same idea.

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

How's my time, Mr. Chair?

[The Chair, Liberal, Ken McDonald]

You have 10 seconds. I guess we'll move on.

Mr. Morrissey, you have three minutes or less, please.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Chair. My apologies for technical issues.

I want to go back to an answer that Ms. Metallic gave.

Was I correct that you were referring to the Marshall court decision regarding the dates which said he was in violation? Could you just clarify that answer you gave?

[Prof. Naiomi Metallic]

The court in Marshall I found that Marshall was fishing out of season. The court found that the restriction on fishing within season was unconstitutional in that particular case.

Does that answer your question?

[Bobby Morrissey, Liberal, Egmont, PE]

Yes.

Perhaps you could comment on this question, because I'm not sure anybody has referenced it so far.

There is a perception that since Marshall, there's been a vacuum as it relates to access to fisheries for first nations communities. We all know the record will say that there's been a significant transfer of fishing rights and access to the fishery to first nations communities since Marshall.

Has the transfer of fishing licences since Marshall 1999 satisfied any definition of moderate livelihood?

[Prof. Naiomi Metallic]

In fact, it addresses that directly in the paper I gave to the committee, and was recently posted as an article on Policy Options.

When the commercial agreements came out of Marshall, the negotiators actually told the Mi'kmaq that this was not the implementation of a moderate livelihood right. To see it as such is problematic, given the representations that were made.

Beyond that, yes indeed, access helped the communities financially. However, one of the issues with respect to that is that in over 20 years, populations grow within the community; the boats that were provided get old, and the licences become insufficient to meet the needs. This idea of a relationship that continues can't just be a one-time thing. That's the challenge with looking at personal access.