Fisheries Committee on Nov. 27th, 2024

[The Chair, Liberal, Ken McDonald]

I call this meeting to order.

Welcome to meeting number 131 of the House of Commons Standing Committee on Fisheries and Oceans. This meeting is taking place in a hybrid format pursuant to the Standing Orders.

Before we proceed, I would like to make a few comments for the benefit of witnesses and members. Please wait until I recognize you by name before speaking. Those in the room can use the earpiece and select the desired channel. Please address all comments through the chair.

Pursuant to Standing Order 108(2) and the motion adopted on Thursday, February 8, 2024, the committee is resuming its review of the Fisheries Act.

I want to welcome our first panel. We have from the First Nations Fisheries Council of British Columbia, Stu Barnes, executive director. From the First Nation Wild Salmon Alliance, we have Robert “Galagame'” Chamberlin, chairman. Finally, from the Nunavut Fisheries Association, we have Mr. Derek Butler, executive director.

Thank you for taking the time to appear here today. You will each have five minutes or less for your opening statement.

Mr. Barnes, you have the floor.

[Stu Barnes, Executive Director, First Nations Fisheries Council of British Columbia]

Thank you. I wasn't expecting to be so quick off the bat.

Good afternoon, Mr. Chair and committee members. Thank you for allowing me the opportunity to present before the committee today.

I'm the executive director of the First Nations Fisheries Council of B.C., which was established in 2008. The FNFC has the mandate of implementing the B.C. first nations fisheries action plan and working with first nations to foster stewardship and engagement. We undertake the convening role to ensure a cohesive first nations voice on Pacific fisheries and aquatic resources. This mandate was endorsed by resolution of the B.C. Assembly of First Nations, the Union of British Columbia Indian Chiefs and the First Nations Summit.

The FNFC's approach is to convene first nations, listen to their priorities and perspectives, and help clearly articulate their shared messaging to decision-makers. These structures and processes support coherent messaging to government and align to the federal government's approach to implementing the requirements of the UNDRIP action plan.

On August 1 of this year, after a detailed assessment of the existing Fisheries Act, the FNFC submitted for the committee's review their in-depth assessment of how best to modernize the Fisheries Act. We examined the act with particular regard to how best to align it with Canada's legal obligations toward first nations, as enshrined in section 35 of Canada's Constitution and as recently elaborated upon in Canada's UNDRIP Act and Canada's UNDA action plan.

Over the next few minutes, I would like to touch upon our key points, as documented in our submission to the committee.

First, it is of utmost importance that the review of the Fisheries Act be broadened to include modernizing the act to be consistent with UNDA. The federal government has made commitments to modernize federal laws to be consistent with UNDA, and FOPO should take this opportunity to incorporate these changes. FNFC's submission provides examples and recommendations where sections need to be changed to be consistent with UNDA.

To aid the committee in its work, FNFC is developing a recommendations report, to be completed in March 2025, which will be specific to modernizing fisheries-related laws and regulations consistent with UNDRIP. We intend to share our report with members of the committee once it is completed.

Second, it is important to recognize that first nations do not derive their rights solely from Crown legislation or court rulings. First nations have indigenous law that predates western contact. First nations use and have always used indigenous law to govern themselves. A crucial element of reconciling Crown and first nations relationships is the mutual recognition that the respective parties have different governing systems and laws. Thus, the Fisheries Act must recognize indigenous law as a contemporary legal framework in Canada and provide for the implementation of legal pluralism.

Third, the Fisheries Act should be updated to broaden the purposes of entering into agreements with first nations and to uphold agreements signed with first nations as a way to recognize and respect the jurisdiction and authority of nations to share responsibility in the management of fish and fisheries. This is consistent with current and emerging forms of collaborative management agreements and reconciliation framework agreements that relate to fisheries.

Fourth, the act should address the lack of transparency and accountability in the minister's decision-making and should mandate the explicit identification of the factors the minister has considered when exercising discretion. Transparency is crucial to helping Canada's indigenous partners understand decision-making under the act, especially in the context of protecting fish, fish habitat and sustainable fisheries, which are integral to first nations cultures and societies.

I thank you for your attention and time.

[The Chair, Liberal, Ken McDonald]

Thank you.

We now go to Mr. Chamberlin for five minutes or less.

[Robert Chamberlin, Chairman, First Nation Wild Salmon Alliance]

[Witness spoke in Kwak'wala]

[English]

My traditional name is Galagame'. I'm from the Kwikwasut'inuxw Haxwa'mis people of the Musgamagw Dzawada'enuxw. I asked you to hear my words, as I'm speaking from my heart, on behalf of many first nations in regard to salmon. It is a food source, a basis of our culture, traditions and language, and it is in dire straits.

On the topic so far about the Fisheries Act, I'm always mindful of the commitments of each of your parties and of government as a whole in terms of reconciliation, the implementation of the UN Declaration on the Rights of Indigenous Peoples and charting a meaningful path forward with first nations. It is a very complicated and complex path, indeed, but where does it hit the road? I believe that for the government, it needs to start with legislation.

I need to impress upon you the opportunity that salmon and fisheries represent in accomplishing reconciliation and food security for first nations across British Columbia, and how this is beneficial to the environment and the massive economy that is wild salmon. By enacting a path forward that rebuilds and looks after salmon in British Columbia, you can meaningfully address reconciliation at a province-wide scale in a way that benefits all Canadians and the environment. You can accomplish this and begin the path of reconciliation the Crown has made, doing so through revisions to the Fisheries Act to reflect the realities that my brother Stu just spoke of: the legal pluralism in Canada and the inherent rights and title of first nations people in British Columbia.

We have witnessed the government making small steps in programs and services. These are useful and beneficial, but these are not fundamental reconciliation steps; it is still a Crown-controlled initiative. What happened along the way is that first nations embraced the opportunity and developed various capacities, with technical skills and understanding of the management of fisheries. There are many mature organizations in British Columbia that have the ability to manage, so I ask you, what is the destination of this capacity development, then? Is it simply to sit with government and argue, or are we really going to hit the road with reconciliation and empower first nations through legislation to have the appropriate management that reflects the legal pluralism of this country?

First nations who reside in their traditional territories, who have their hands in the river and the ocean and know what's going on intimately, can inform management rather than somebody at 200 Kent Street. Let's be serious: That's where the solutions lie. This can happen by encouraging each of you to put forward recommendations wherein we see a meaningful inclusion of this authority, inherent in nature, in the mechanism called the Fisheries Act, which DFO cannot then reinterpret at its leisure through policy. It becomes a “thou shall”.

This is a significant path that I bring forward because I don't think that Canadians by and large understand what reconciliation means. They will fear it if they don't know what it means. If we take the step that I just described, we could enact reconciliation, embrace the UN declaration, enact Supreme Court law and breathe life into subsection 35(1), which is going to benefit all Canadians in a real and tangible way.

This is the vision I see as critical for the relationship between the Crown and first nations in British Columbia. Having a central government is one thing. Having a minister in Ottawa who doesn't have any connection to the territories we are representing and speaking to is, in our language, k̓i's na̱ḵa—it's not right.

I encourage you to explore how, within the Fisheries Act, you create the appropriate space to embrace all that I've just described as a legal imperative that's incumbent upon this government to embrace and enact. That would then see us move forward together, as envisioned in this concept of reconciliation. What I've found is that, when we have Supreme Court law—and I'm confident that every one of you understands where that sits in the function of democracy in Canada—conservation is first, and second to that are first nations. For your purposes as the Crown, call it FSC—food, social and ceremonial. It's very nice of you to come up with a term and I hope you understand it—I'm just kidding.

For us, it's much more than that. It's the foundation of our culture, our traditions, our attachments to our lands and our language. These are the things the residential schools targeted to destroy. What I say—and I think about the broader commitments of all parties in the Truth and Reconciliation Commission calls to action—is this: Why not invest in salmon to rebuild culture, language, traditions and attachment to lands? It's a tangible exercise, and along the way we can have a reconciliation and food security that benefits all Canadians.

This is the vision that I have, and I know the work—

[The Chair, Liberal, Ken McDonald]

I have to cut you off there, Mr. Chamberlin. You've gone almost two minutes over the opening statement. Hopefully anything you didn't get to say will come out in questioning.

We'll now go to Mr. Butler for five minutes or less.

[Derek Butler, Executive Director, Nunavut Fisheries Association]

Thank you, Mr. Chair.

Let me start by thanking the committee for this invitation to appear before you this afternoon for your study surrounding the Fisheries Act.

Before I make two key points, let me briefly introduce myself and the organization and people I represent. My name is Derek Butler. As you know, I'm the executive director of the Nunavut Fisheries Association, or NFA. I've worked in the industry trade association side of the business for 20-plus years now, before which I worked in international political development with a Washington-based NGO. I started my career here in Ottawa with Foreign Affairs and, as they say, a stint on the Hill.

NFA is a typical or standard industry trade association, representing four companies that participate in the fisheries in Nunavut. The NFA member companies are the Arctic Fishery Alliance, Baffin Fisheries, Pangnirtung Fisheries/Cumberland Sound Fisheries Partnership, and Qikiqtaaluk Corporation, the birthright corporation. All companies are owned by the hunter and trapper organizations, the HTOs, communities and/or the Inuit of the Qikiqtani region of Nunavut. In short, these are indigenous-owned companies that participate in fisheries to the benefit of Nunavut.

NFA's role is to advocate to provide a unified voice for the commercial fishing industry in the territory to stakeholders, to the public at large and to the territorial and federal governments. We work closely with DFO, industry partners and our research partners.

On that last note, NFA supports a suite of fisheries and ecosystem science and research activities with various stakeholders in an annual research program, all in support of sustainable fisheries in Nunavut. We work on bottom impacts, bycatch surveys, assessments and more. We work with universities, research institutes and independent researchers. We collaborate with other industry participants. We also receive support from both the territorial Government of Nunavut as well as the federal government through CanNor, for which we are very appreciative.

I have two main points today as an association. The first is that DFO needs to fulfill the core mandate responsibilities of the department. DFO needs to ensure that they have the resources so we have the resources and so that Canada continues to maintain sustainable fisheries, which contribute so much to our livelihoods and to world-class healthy protein. You've heard the message before that the core mandate is imperative.

At the heights of COVID, there was some talk that the fishery wouldn't be able to run like a lot of business sectors, with concerns around the health and safety of our workplaces and our workers. I was confident, in my previous role, that we could adopt the best practices, keep our workers safe and provide world-class healthy protein. If the world was going to pack potatoes and bananas for us, we should pack fish for them. It's just food.

We did. We rose to the challenge. We were resilient, and we gave the world more healthy protein. We need to keep doing that, and we need to make sure DFO does the science and core mandate work in support of maintaining fisheries.

That's my main message today. We're not seeking legislative change in this review. We underscore what matters most: good science in support of sustainable fisheries. The world is getting more complex. DFO's mandate is getting more complex. I understand that, but you still need the foundation for the house to be strong, with core science and a core mandate in support of prosperous fisheries.

My second and final point relates to the review period of five years. We may say more in our future submission, I should note. As you'll appreciate better than anyone, Parliament maintains its prerogatives to change or amend the act with or without a prescribed review period. That's understood. I simply wanted to offer one additional perspective here today on that five-year review period.

To state the obvious, a review doesn't necessitate change. There can always be cause for change. You can hear the testimony of witnesses, review the submissions and consider and conduct your own analysis, and you might determine that no legislative changes are required. It might be redundant to say that, but it might apply. There are areas—policies, regulations, etc.—that may be appropriate to change as well, but a review does not in and of itself necessitate change. We've gone from an act that saw few changes in Canadian history to a prescribed five-year review, which is one every Parliament. That might be ambitious.

That's where we are as an association. I'm not here to suggest changes in particular today, but I appreciate the opportunity to address you for this study and to say that we support any renewed commitment we might have on the core mandate in support of commercial fisheries, with good science and with appropriate resources.

Thanks again to the committee. I look forward to any questions you might have. If I can't answer them today, I could perhaps follow up with the clerk in writing or put something in a submission later on.

[The Chair, Liberal, Ken McDonald]

Thank you, Mr. Butler.

We'll now go to our first round of questioning. I will remind members that it will probably go easier if you identify who you want to answer the question.

Mr. Arnold, you have six minutes or less.

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

Thank you, Mr. Chair.

I thank all three of you for being here today as we continue this review.

When the Fisheries Act was amended in 2019 by Bill C-68, the word “laws” was redefined to include “by-laws made by an Indigenous governing body”. This expanded the act's equivalency provision, and it was a significant change. After five years with this new act in place, I think it's time to assess how the changes have played out.

Mr. Chamberlin or Mr. Barnes, how has DFO rolled out these legislative changes to first nations and indigenous governing bodies in B.C.?

[Stu Barnes]

As far as I can see, there's no evidence of any of those types of inclusions. This is the first I'm hearing of bylaws being brought up for local communities, so I don't have any examples of how this has landed because it hasn't landed.

That's my short answer, unless Bob has something else to add.

[Robert Chamberlin]

When I think of the amendment to the Fisheries Act allowing first nations bylaws to be incorporated into the Fisheries Act, that still does not represent the government-to-government or Crown-to-first nation relationship. It makes our aspirations and bylaws subservient to the Fisheries Act of the Crown. That's a snapshot of that time, I believe, and doesn't reflect the realities of law today and the embracing of the UN Declaration on the Rights of Indigenous Peoples.

When we start to think about first nation bylaws, just on that train of thought, we see we have a Department of Fisheries and Oceans that is loath to discuss what the word “social” means, even though it's covered off in the Supreme Court. Food, social, ceremonial—they will not give it a definition.

First nations have views and perspectives of what that means to their nations. There's no cookie cutter for this. What we need is a department that is willing to have substantive and real negotiations with nations to blow that balloon up and bring it to the dance so we can understand and have an agreement about what “social” is. It could very well mean the exercise of the licences that come from indigenous programs like PICFI, NICFI and AICFI, but then there needs to be an appropriate allocation.

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

Has the government or the department worked with first nations or indigenous governing bodies to establish consensus or agreement to settle potentially conflicting claims over territories and waters, that you're aware of?

[Robert Chamberlin]

I believe DFO does not have the authority to remedy what I hear you speak of in terms of overlap. They're there to discuss fisheries. Where they run into difficulties is with the migratory nature of many salmon and other fisheries.

To be very transparent, I've pushed really hard for years for our tribal council to get an aboriginal aquatic resource and oceans management body. We were unsuccessful and I wonder how many others were unsuccessful. I've become very aware of many first nations that don't want one.

The DFO has a practice now—and I'm talking about their practice—of only turning to AAROM bodies for direction, so they're making a conscious and systemic exclusion of first nations that are not part of those particular silos. They're actually working to ensure that there is no unity among first nations. They reward ones they have agreements with and they ask others to bear the infringement of their rights based on somebody else's opinion.

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

In your opinion, how should consensus be reached if there are two first nations or indigenous governing bodies that have bylaws governing the same fishery?

[Robert Chamberlin]

I'm mindful of Jody Wilson-Raybould's comments when she was BCAFN regional chief. She often spoke about the work that first nations have to do on their side of the table in their governance and agreements with one another.

I can tell you, Mr. Arnold, that there are discussions across B.C. going on right now about revisiting an inter-first nations fisheries treaty. They began in the 1980s. We've found some resourcing to facilitate that dialogue across the province so we can start to have discussions and do the work on our side of the table as first nations to have an understanding of our interdependencies with one another about salmon.

When I see this coming forward, I think it is useful, because then the government can sit down and have a substantive discussion about salmon writ large across the province with first nations at a political level. The misuse of AAROM bodies is securing it down to a technical table.

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

My time is very short, so I have one quick question. Should agreements between the Crown and other governing bodies be transparent to first nations people and to the citizens of Canada?

[Robert Chamberlin]

I believe outcomes need to be told to them. I don't see any benefit in making negotiations and the components reflected in those discussions public. There's no need to discuss and negotiate through media or anything like that, but outcomes need to be understood.

The good thing that I'm really pleased to report to all of you is the work the First Nation Wild Salmon Alliance does in talking with sport fishermen, the Sport Fishing Institute of British Columbia, commercial fishermen and wilderness tourism operators. We have begun the work of uniting focused salmon economy players in talking about what we need to do to protect salmon and bring it back for everyone's benefit.

The thing I'm wondering about is, after all the work of organizing what I've just described, how is the government going to respond to that? Will it be meaningfully, or is it going to be another deny, delay and distract exercise?

[The Chair, Liberal, Ken McDonald]

Thank you Mr. Arnold.

We'll now go to Mr. Weiler for six minutes or less.

[Stu Barnes]

Mr. Chair, am I able to respond to that question quickly?

[The Chair, Liberal, Ken McDonald]

You can afterwards, but not right now. I'm sorry. The questioner's time is up. He's gone over, so now we'll move on to Mr. Weiler.

To the witnesses, if there's anything you want to comment on afterwards, you can send it in written form to the committee.

Mr. Weiler, you have six minutes or less.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Chair.

I want to thank all of our witnesses for being here in person and for coming a long distance to do that. It's much appreciated.

Before getting into the substance of the Fisheries Act itself, I'm very interested in the process side.

Just yesterday, we finished a 10-hour committee meeting to go through clause-by-clause of the first nations clean water legislation. That was the first piece of legislation that was co-developed. A number of things you mentioned really spoke to how central fisheries are—and particularly in B.C., a particular fish—for indigenous people's identity.

From a process point of view, when we're going through the amendment and perhaps modernization of the act, how do you see the process of co-development playing into that modernization or amendment?

Maybe I'll start with Mr. Barnes. Then I'll go to Mr. Chamberlin. I would be very curious to hear your thoughts as well.

[Stu Barnes]

On process, what we've done at the water table.... First and foremost, what we need to do is have all first nations aligned and in the same spot. Relationships like mine and Bob's are going to be key for having all the right voices in the right place at the onset. That's always been the key piece: to make sure that tier one, as we call it, is set at the start of the conversation.

Then you go into a conversation with the government. I call it a “tier two sandwich”, where you do the work with the Government of Canada and with the first nations and then go into the room with the stakeholders, the tier three group. Then you come back and convene with the tier two world to go over what you heard from the stakeholders.

The set-up is similar to what you would see nowadays with the IHPC, but in that case, we're still sitting on the stakeholders' side of the table. I've always suggested that it would be good for us to set the stage with the government by producing a document and conveying what we've worked on together to the stakeholders, and then convening again to debrief on what we've heard from the stakeholders. We have to start to operate government to government on all these different little types of processes, and the tier two sandwich is how I've coined that.

[Robert Chamberlin]

I want to pick up on the sandwich comment. Do you know what you call a wish sandwich? It's when you have two pieces of bread and you wish you had some fish.

This is where we're at when we talk about the true status of salmon in British Columbia. When we talk about tier one, that is where we need to see the investment so first nations are resourced to gather, have discussions and reach an understanding.

I have great issue with tier two. I participated in 2009-10 with the First Nations Fisheries Council in the tier two exercise. In the discussions, negotiations, proposals and contracts, it was stated that this was not consultation. At the end of that process, everything that I did with the Fisheries Council landed in front of a judge for a judicial review with our nation, and they called it consultation. That is a misuse of the engagement process, and that does not build trust.

We need to have a venue and the resources. If the Crown has an interest in progress on this, we need to find the resources so first nations can have fulsome, technically informed, political discussions that aren't going to happen in one quarter of the year. It's going to take time and sustained resources to do it. We can then have a measure of unity, politically and technically, to sit down with you and have a substantive discussion. Solely turning to the AAROM bodies to the exclusion of ones that don't have that doesn't work; it just furthers the division.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Next I want to bring up something that Mr. Chamberlin and Mr. Barnes both mentioned in their introductory remarks. It is the idea of legal pluralism.

Several years before politics, I practised in aboriginal law. I'm not an expert in indigenous law in any way, shape or form. However, I'm very curious how you see that playing out in practice in the context of the Fisheries Act.

I know that one of the challenges is that indigenous law predates contact, and sometimes those laws are not actually available in written form. I know there's a big process now to codify a lot of indigenous laws. I'm curious about, from your perspective, what that might look like in practice.

Maybe I can start with you, Mr. Barnes.

[Stu Barnes]

I think it's going to be different from region to region, so it's not going to be a cheap endeavour. For the Gitxsan, for example, you might be able to aggregate some of it, but each nation is going to have its own way of doing business. I think we missed an opportunity with the guardians program 20 years ago to amalgamate the two ways of thinking.

The traditional law that guides first nations morals and guides the way they extract resources within their territories is what tells our folks to get out of the water when it's time. When traditional law says that there's not enough fish to sustain their food this year, that's the advice they listen to, not the advice of government. When C and P comes to town and says that we need to stop food fishing, there's a reluctance and a trust miscommunication there that is historical in nature. By providing an opportunity for our people to be involved in decision-making, it is easier for our people to palate those types of things.

Building off of that, there are opportunities, if you do enable, acknowledge and empower our traditional law, for them to be licence-issuers for whatever catches may happen in their territory. This can lead to shared resource mechanisms. The effort of our people goes up and down because we haven't had opportunities to fish every year, but a lot of us are starting to utilize recreational gear to get into the water for those types of purposes. If we could license up the sector through our nations, it would allow us to have more of a shared management tool in the sector.

That's one of the ways to do this, but it's going to take bilaterals. Sometimes they can aggregate up, and sometimes they're going to be about individual nations. That would also allow for traditional protocol agreements, which is something Bob spoke to a little with the treaty he mentioned. The treaty he mentioned was spun off a northwest tribal treaty on the Skeena. Through that mechanism, we were able to solve a problem in the Lax Kw'alaams territory, because since western law came into play, our fishermen have started to go down to the coast to harvest. That was a problem for our brothers and sisters in the Lax Kw'alaams territory because that was their territory. When our fishermen would go down there, DFO would take the allocation off their allocation, not ours.

We set up an MOU with the Gitxsan people, the Wet'suwet'en people, the Gitanyow people and the Lax Kw'alaams people to articulate that we would come down and take 5,000 sockeye this year. That's going to come off our plate, not the Lax Kw'alaams's plate. We were able to interact with each other through this tool and were able to speak to DFO in a cohesive voice. The problem, though, was that we weren't able to be acknowledged and enabled by local C and P because they didn't understand what was going on.

Those are some of the traditional ways we could start to alleviate some of these overlap conversations.

[The Chair, Liberal, Ken McDonald]

Thank you for that.

We'll now go to Madame Desbiens for six minutes or less.