Madam Speaker, on September 17, 1999, the Supreme Court of Canada rendered its decision in Regina versus Marshall. The effect of that judgment is quite clear. The situation in law now is that before fisheries managers can lawfully open the fishery to others, the Mi'kmaq people must be accorded the opportunity to fully satisfy their rights for a moderate livelihood. In other words they are given a priority right to fish.
This follows from the order of priority set out in Sparrow and in other cases which establish firmly that aboriginal treaty rights have priority over general, commercial and sport fishing rights.
Moderate livelihood is defined as including such basics as food, clothing and housing supplemented by a few amenities, but not the accumulation of wealth. It simply addresses day to day needs. This definition is broad and hopelessly vague. It is likely that there are few existing commercial fishermen who enjoy any greater standard of living than that from the inshore fishery. These fishermen will now have to stand aside while each and every Mi'kmaw who chooses to go fishing does so and earns enough to achieve this level of income.
What happens if there is some doubt as to when to close the fishery? Our experience is quite simple. When in doubt fisheries managers will be inclined to err on the side of allowing too much Mi'kmaq fishing rather than too little. This has been our experience. It happens because non-aboriginal fishermen do not have constitutional remedies for infringement of their fishing rights as aboriginal fishermen do.
The practice of erring on the side of aboriginal fishing rights seems to have been adopted as a method of keeping DFO managers on safe ground and free of legal challenges to their decisions.
The present situation also allows for the courts to strike down the current regulations of the fishing rights of the Mi'kmaq because these regulations did not have any specific accommodation in regulation as a priority right. The minister's absolute discretion under the Fisheries Act, which is the basis for the current regulations, was not held to be adequate protection of the treaty right. Accordingly at the moment there is no valid regulation of the Mi'kmaq right. There is a legal vacuum. Unrestrained fishing can take place by the Mi'kmaq until such time as a valid regulatory regime can be put in place. That may take months or even years since consultation must take place beforehand.
Before I go any further I will look back at the situation in British Columbia because the experience there with preferential fishing rights accorded to natives is not a happy one. The problem in British Columbia was visited upon us by the Conservative government, in particular John Crosbie, minister of fisheries at the time. He allowed for a separate native commercial fishery in British Columbia in June 1992. There was a tragedy that year for fish stocks. The situation only worsened until 1994 when there was a complete breakdown in enforcement. We have encountered some of the lowest spawning escapement on the Fraser River in history.
As a result the Liberal government asked John Fraser, a former Minister of Fisheries and Speaker of the House, to investigate the management system in place on the Fraser River. He found that the natural disaster excuses the government had offered to be without much substance. It had said that the water was too high and the water was too warm. The fact of the matter was that the problem was visited on us because of the poor regulations which were in place, poor enforcement and so on of that native commercial fishery.
That was the experience of British Columbia. It has been a tragedy. Prior to 1992 the fishery on the Fraser River was a profitable one. This past year commercial fishing was completely closed on the Fraser River for the first time in history. That came about as a direct result of the aboriginal fishing policy and the commercial fishing regulations which were put in place by the government. There is no question about that.
Over time the government has blamed nature, acts of God: the water was too high; the water was too low; the water was too warm; the water was too cold; it was El Nino; it was La Nina, all these problems. When they look at that collapse they say it was El Nino in the north Pacific in the last couple of years.
What happened? Why was it that there were strong returns of sockeye to Port Alberni on Vancouver Island this year? Why is it that in Alaska they anticipated 25 million sockeye to return to Bristol Bay and we ended up with over 40 million? Those fish were swimming in the same waters in the north Pacific as the fish from Fraser River. Those returns came back strong. The only difference was the aboriginal fishing regulations in place on the Fraser River and the cutbacks by the government resulted in a lack of enforcement and a lack of proper monitoring of the fishery.
The minister talks about supreme court decisions and the effect they have on the government. Supreme court decisions are not made in isolation. The government was there and it was supposed to address the issue on behalf of all Canadians. It was supposed to present its case and especially the case of the fishermen who would be impacted by the decision to the court so the court could have something to base its judgment on.
What did the crown do, the crown being the Liberal government? In the first instance the crown expert witness described the prohibition on Mi'kmaq trading peltry with any other than the British as a Mi'kmaq right to trade. How we can get from a restriction on trading, which that was and which the truck houses were, to a right to trade is beyond me, but that point was conceded by the government.
Second, the expert witness conceded that the treaty right included a right to trade fish although peltry was the only commodity cited in the treaty and the price list agreed to by the chiefs and the British did not include fish.
How do we get from an agreement which does not include fish and which is a restriction on trading rights to a priority right to fish? I will tell the House how. The government had in place a policy on the west coast which gave to natives a priority right to fish. How can it have that kind of policy in place and sustained on one coast and then go to court and try to deny it on the other? It cannot be done and the government knows it. It did not do it and that is why we are in the jam we are in now.
There is another interesting oversight by the government. The crown also failed to enter into argument the public right to fish. The public right to fish has existed in British common law since the Magna Carta. The public right to fish guarantees all of us equal access to the fishery. That public right can only be broken by the House. It takes an act of parliament to allow for separate native commercial fisheries. That has not happened on the west coast. There is no act of parliament dealing with it. Those fisheries are operating illegally.
That argument should have been put to the court when the decision was argued so the court would understand the legal condition in which that treaty was signed. That treaty should not then have been interpreted as an exclusive right or as a priority right given the underlying right that we all enjoyed, the public right to fish.
The crown failed to enter evidence demonstrating the social and economic impact on the maritime fishery if the Mi'kmaq were awarded the right to fish commercially. The crown also failed to argue that a decision in favour of a commercial fishery on eels, there being no viable commercial fishery in the maritimes on eels, could result in a commercial fishery on other species such as lobster. The crown failed to introduce evidence such as the 1995 fisheries conservation council report which suggested that lobster were already overharvested so that any official entry into the fishery through a treaty would mean an existing participant in the public commercial fishery would have to be displaced.
In other words, the crown failed to represent to the court the situation that currently exists, a situation in which a fishery is already oversubscribed, in which there are already too many participants according to the Fisheries Resource Conservation Council, and in which allowing the entry of others would require the displacement of those who are currently exercising rights to fish. That argument should have been put in place and it was not. The government overlooked it.
It is not the first time a tragic oversight by the government has happened in arguments before the Supreme Court of Canada. It happened in R. v Nikal, which I will not go into now because of time limits, but I will reference the recent Delgamuukw decision of the Supreme Court of Canada.
In Delgamuukw, the federal government supported aboriginal claims to self-government and the continued existence of aboriginal title. Although the Supreme Court of Canada did not deal with self-government, it did find in favour of unextinguished aboriginal title which continues to cause chaos throughout British Columbian resource industries. That is tragic. It caused the logging disputes we had this summer and the flagrant breaking of law, not to mention the hardship. The minister, himself, mentioned just moments ago that these rights would extend to logging, mining and so on.
There is chaos and turmoil in eastern Canada. Shortly after this decision came down, I offered the minister a reasonable and legal escape route. I sent it to him in a letter and I sent that letter to the provincial governments affected. I told him that what he should do first is to seek a stay of judgment and, second, to seek a rehearing of the case.
It is clear what the effect of a stay of judgment would be. It would simply allow for a cooling off period. It would have allowed the government time to pool its resources and to figure out what it was going to do with the situation it was faced with.
The second thing it would do is this. By asking for a rehearing it would have given the government, the attorneys general of the provinces involved and other stakeholders, whether they be fishermen's organizations, processing organizations or the communities affected, the opportunity to go to the supreme court and say “Look, if this decision moves ahead this is the impact it is going to have on our communities”. It would have given those stakeholders a chance to say “Look, when you dealt with the Gladstone decision of the supreme court you acknowledged that others had rights”. That Gladstone decision dealt with an inherent aboriginal right to commercially fish herring roe on kelp.
Even though it was found to be an inherent aboriginal right, the court acknowledged that others had acquired rights as well. That argument was not taken to the supreme court by the government. It left it out. It refused to bring that forward. It refused to defend the interests of current stakeholders.
The fisheries oversubscribed. If one drives down the coast of Nova Scotia and takes a look at those small towns and villages one will see that the only building standing is the lobster processing plant and behind every house there are lobster pots. That is how those communities exist. If we take away their access to the resource what is left? It is not only the fishermen who will go out of business, it is the processors, the guy who runs the gas station and the guy in the grocery store. It trickles right down. It will destroy the economy. Nothing is gained by taking from one who is simply making a living and giving it to another.
In my view it is imperative for the court to rehear this matter. Neither Parliament nor the provincial legislatures have the power to deal with the matter, it having been put out of reach of the legislative branch by sections 35(1) and 52 of the Constitution Act, 1982. The notwithstanding clause is not available since section 35(1) is not a part of the charter.
The only legislative remedy is a constitutional amendment by Parliament and the legislatures of seven provinces containing 50% of the population of Canada. This is probably impractical.
The minister says to negotiate. Negotiations would be lovely but they can only be successful if one goes to the table with something in one's hand. The minister has no cards. He has no chips on the table. He gave it all away when he failed to score points and make the proper arguments before the Supreme Court of Canada.
I want to quote three passages from the Gladstone decision of the Supreme Court of Canada. I want to show which references the government could use if it sought the court's advice on this matter. These three passages would provide legal weight to an escape route from this problem. The first quotation reads:
It should also be noted that the aboriginal rights recognized and affirmed by s. 35(1) exist within a legal context in which, since the time of the Magna Carta, there has been a common law right to fish in tidal waters that can only be abrogated by competent legislation.
This is from R. v Gladstone, paragraph 67.
The second quotation reads:
While the elevation of common law aboriginal rights to constitutional status obviously has an impact on the public's common law rights to fish in tidal waters, it was surely not intended that, by enactment of s. 35(1), those common law rights would be extinguished in cases where an aboriginal right to harvest fish commercially existed.
This is R. v Gladstone, paragraph 67.
The last quotation reads:
Although by no means making a definitive statement on this issue, I would suggest that with regards to the distribution of the fisheries resources after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend upon their successful attainment.
This is R. v Gladstone, paragraph 75.
That says it all. By not arguing for the rights of other Canadians when this matter was before the court, the government has put peace and good government in the country in jeopardy. It has walked away from the very legitimate concerns that other Canadians have for their fishery, the legitimate interests that other Canadians have to earn a living from the fishery. It is beyond belief that this could happen.
DFO could balance the interests of Canadians in several ways. It could state, as did the court: that the federal government has the ultimate responsibility to balance the interests of all Canadians; that there will be only one commercial fishery operating under the same rules and regulations; that the treaty right will be accommodated by issuing commercial licences to fish in the public commercial fishery alongside other Canadians; that any licence issued to the treaty fishery will be offset by a licence that the government purchased from a voluntary seller of a licence in the public commercial fishery.
