Fisheries Committee on Nov. 16th, 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 committee on Monday, October 19, 2020, the committee is resuming its study on the implementation of Mi'kmaq treaty fishing 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 to follow. 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 the 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 the video conference please click on the microphone icon to unmute your mike. For those in the room, your microphone will be controlled as normal by the proceedings and verification officer.

I will remind you that all comments by members and witnesses should be addressed through the chair. When you are not speaking, your mike should be on mute.

With regard to a speaking 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 back today.

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

Since the witnesses appeared with us on November 2 and already made their opening statements, we will now go to questions from members.

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

I have a point of order, Mr. Chair.

We had the call this week and the email correspondence and I wanted to follow up for a point of clarification in regard to the subcommittee. Is it possible for the clerk to find time at another point other than committee time for us as subcommittee members to meet to go over some of the agenda items and witness lists, etc., so that some of that would be ready for some of the upcoming meetings that will be happening? Is it possible to find additional time somewhere else? If not, then I would suggest that we'll need to, maybe as a committee of the whole, set aside some time for committee business, maybe not at the next committee meeting but the one a week from today, on Monday, to have some time to deal with committee business.

I'm wondering if it's possible for the subcommittee to meet at a separate time at any other point prior to next week's meetings.

Thanks, Mr. Chair.

[The Chair, Liberal, Ken McDonald]

Mr. Bragdon, in communicating with the clerk, we've been advised that if it is our wish to meet as a subcommittee, we would have to do it during normal committee meeting time. We will try to accommodate in some way, whether it is committee business or whatever, discussion of the issues that you're talking about in regard to our upcoming schedule.

Madam Gill also asked for something to be discussed in committee business.

We will look at trying to carve out a portion of a meeting along the way to do exactly that, if we can't get the additional time.

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

Mr. Chair—

[The Chair, Liberal, Ken McDonald]

Is this on the same issue, Mr. Johns?

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

No, I'm having technical problems. My headset is not working. You can hear me, though, okay?

[The Chair, Liberal, Ken McDonald]

I can hear you, but it's up to the sound crew if they can hear you properly in order to continue, Mr. Johns.

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

Okay, great. Interpretation is fine, good.

[The Chair, Liberal, Ken McDonald]

Okay.

Now we'll go to Mr. Williamson for six minutes or less, please.

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

Thank you, Mr. Chair. I'm so glad our witnesses were able to return.

I hope you can understand at the time we were interrupted—and I was the primary interrupter—we had some important business to try to get the fisheries minister before us, so here we are. I'm glad we're able to proceed and I'm also glad to report that the fisheries minister will be joining us the day after tomorrow. Your testimony will, I think, help inform us for that meeting.

I have some general questions. I suppose I'll ask you to respond to them each briefly.

I will ask my questions in English, but you can answer in French.

In the context of this study that we are undertaking, what would you say are the main differences between individual and communal indigenous rights?

I'm hoping that each witness could respond for 35 to 45 seconds.

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

That's a highly legal issue and I wouldn't want to venture too strong a position on it.

It's a question that many lawyers are asking themselves right now on the basis of indigenous rights. Section 35(1) of the Constitution Act, 1982 clearly recognizes the collective rights of indigenous peoples. This is actually one of the exceptions in the charter. There are several cases in Canada, specifically mining developments, where rights have been attached to families or individuals. There is no clarity on this issue.

The current general understanding in Canada is that, under section 35(1), these are recognized collective rights. Of course, it is an evolving right.

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

That's great.

Thank you very much.

Would any other witnesses like to weigh in on this?

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

I guess since I'm the lawyer, it would make some sense to.

I would probably ask you for more details about your question because it's pretty generally formed.

In terms of section 35, it has been held by the Supreme Court to protect collective rights. However, the Supreme Court has also recognized that there could be individual exercises of those collective rights.

In a decision called Sally Behn, et al v. Moulton Contracting Ltd., et al, from 2014, the Supreme Court did say that in certain circumstances—they didn't set them all out; they never do—there can be individual exercises of rights and situations where people could solely rely on those collective rights to defend against charges, for example.

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

With that in mind, how do first nations resolve these different rights in terms of a communal right that exists to, in this case, harvest lobster versus an individual's right to also want to participate in it? Is there a mechanism to oversee that, to police that, to ensure that agreements are maintained or even that conservation levels are respected?

[Prof. Naiomi Metallic]

There are several decisions from the Supreme Court now that suggest a communal right implies a right to manage the right—sort of an implicit right to self-government. In Tsilhqot'in, the Supreme Court referenced that in relation to aboriginal title, but even in Marshall II, the Supreme Court talked about how these were collective rights.

In fact, there is the case that I argued in New Brunswick in the Court of Appeal in 2017, where the court there specifically said that the “nature of communal rights mandates that the community regulate, or authorize, appropriate exercise of these rights by its individual members through ensuring equitable access to...resources.”

So, there's a management right implicit in the communal.

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

Could it be argued that what we were seeing and what was happening on the waters in Nova Scotia, because it was sanctioned through a first nations process, was that those who were advocating it were trying to meet the tests of the court? By that I mean, instead of individuals on the water—indigenous as individuals—

[The Chair, Liberal, Ken McDonald]

We lost your sound, Mr. Williamson. Your video is frozen.

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

Mine is?

[The Chair, Liberal, Ken McDonald]

Okay, you're back.

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

Did you hear me?

[The Chair, Liberal, Ken McDonald]

No.

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

That's odd. I'll repeat myself. Pardon me.

With what was just said regarding those cases, is it fair to say that because indigenous fishers were operating through the barrel of a self-regulated fishery, they were trying to meet the thresholds that the courts had established?

[Prof. Naiomi Metallic]

I can only say looking from the outside—I'm not their legal counsel—that given the fact there were communal management plans that were set in place, it seems as if that's what they were attempting to do, which would be consistent with the law.

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

Right.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Williamson. You have gone over your time. I did allow a bit of extra time for your losing your video.

I want to impress upon committee members to try to identify the person their question is for. You tend to lose time if you don't direct it to a particular witness. Keep that in mind.

We'll got to Mr. Battiste for six minutes or less.