FOPO Committee Report

Introduction

On October 19, 2020, the Standing Committee on Fisheries and Oceans (FOPO) unanimously passed a motion to undertake a study to: examine the implementation of the Mi’kmaq constitutionally protected treaty right to fish in pursuit of a moderate livelihood; in order to: evaluate the current Rights and Reconciliation Agreement process; identify better ways to engage interested parties to improve communication; reduce tensions and prioritize conservation; identify issues that need to be addressed; and recommend a path forward.

In the fall of 2020, Canadians witnessed Indigenous treaty rights and aspirations collide with neglect by the Minister of Fisheries and Oceans. The Minister’s mismanagement of negotiations with Indigenous communities and exclusion of non-Indigenous commercial lobster fishing associations from the negotiations were primary factors in the crisis. The tension, anger and frustration precipitated by this collision led to breaches of public safety, violent clashes, and divisions of communities and Canadians with the start of an unauthorized lobster fishery. These events were both unacceptable and preventable. The Minister must recognize her role in failing to prevent the escalating crisis. The Minister’s failure to communicate with Canadians before, during and after the dispute also aggravated the situation.

First Nations have already given notice that the continued failure of the federal government to balance treaty rights with resource conservation is resulting in the launch of a First Nations managed lobster fishery outside of the DFO commercial seasons in the summer of 2021. This will impact commercial fishers and coastal communities in Atlantic Canada.

The Marshall Decisions

The Supreme Court of Canada’s (SCC) Marshall I & II decisions reaffirmed the Mi’kmaq 1760 treaty right to fish and sell catch in pursuit of a “moderate livelihood.” While the high court’s description of a moderate livelihood was lacking in clarity, it did provide answers on other points of the treaty right, including:

• conservation of the resource is the paramount regulatory objective and responsibility is placed squarely on the Minister, not on the aboriginal or non-aboriginal resource users (paragraph 40),
• the existence of a treaty right does not mean that the right cannot be regulated nor that the Mi'kmaq are guaranteed an open season in the fisheries (paragraph 2),
• the treaty right has always been subject to regulation and that the government's power to regulate the treaty right has been repeatedly affirmed (paragraph 24),
• catch limits that could reasonably be 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 – such regulations would accommodate the treaty right and would not constitute an infringement that would have to be justified under the Badger standard. (paragraph 61).

Conservative members saw this study as an opportunity to gain answers for the many questions left unanswered by the Trudeau government and Minister Bernadette Jordan. We had hoped this study would render a unanimous report in which all committee members could provide the government specific recommendations with which to rebuild dialogue, balance, peace, and economic opportunity for all in Atlantic Canada’s fisheries.

The study and its purpose of examining “the implementation of the Mi’kmaq constitutionally protected treaty right to fish in pursuit of a moderate livelihood” quickly expanded in scope as the committee slipped into an examination of aspirations for co-managing and co-governing the fisheries resources. Indigenous co-management and co-governance of fisheries are topics important for the future of Canada’s fisheries with many questions to be answered, yet the mandate of the committee’s study are the motion’s five points.

As such, Conservative MPs felt obliged to issue a dissenting report to answer the committee’s original mandate and express our understandings of witness testimony and answers gaps and questions raised by the Committee report. True reconciliation cannot happen if any group is marginalized and excluded from processes directly affecting their livelihoods, interests and futures. Our intent in writing this report is to support reconciliation based on consensus and cooperation between the Government of Canada, Indigenous and non-Indigenous peoples.

Examination of the Implementation of the Mi’kmaq Constitutionally Protected Treaty Right to Fish in Pursuit of a Moderate Livelihood

After the Supreme Court’s 1999 Marshall rulings, consecutive federal governments actively implemented the Mi’kmaq treaty right to fish and sell catch in pursuit of a moderate livelihood by providing access and resources to expand Indigenous participation in Atlantic fisheries.

The Marshall Response Initiative (MRI), announced by the Chrétien government was designed to address the federal government’s responsibilities after the Supreme Court ruling and operated from 2000 to 2007. Through the MRI, the federal government began providing Indigenous communities access to and the means with which to participate in the commercial fishery by buying back commercial fishing licenses from non-Indigenous harvesters and providing these licenses, fishing equipment and training to Indigenous communities.

The MRI delivered significant federal investments that provided Mi’kmaq communities resources and training to grow and manage commercial fishery activities.

In a 2019 Macdonald-Laurier Institute (MLI) report that examined 20 years of the federal government’s efforts to implement Mi’kmaq treaty rights to harvest and sell fish, author Ken Coates described how efforts of the federal government supporting Mi’kmaq treaty rights have delivered a dramatic transformation of the East Coast fishery.[1] The committee adopted the MLI report as evidence for this study on November 30, 2020.

Between 2000 and 2018, federal governments invested some $535 million to expand moderate livelihood fisheries and related activities in the Maritimes.[2] The MLI report found these federal investments in Indigenous fishing activities in response to Marshall “[s]trengthened economic activity in the industry, with total on-reserve fishing revenues for the Mi’kmaq and Maliseet growing from $3 million in 1999 to $152 million in 2016.”[3]

Striking a strong contrast with these findings is testimony from Indigenous witnesses that suggested no meaningful progress in implementing Indigenous access or participation in commercial fisheries has been achieved since the Marshall decisions.

Allison Bernard representing the Kwilmu’kw Maw-klusuaqn Negotiation Office and Mi’kmaq Rights Initiative told the committee, “Mi’kmaq never really get a chance to move ahead, even though we've had this treaty right or this Marshall decision since 1999, which is 21 years.”[4] Similarly, Shelley Denny said, “there is no federal policy to address livelihood fisheries.”[5]

Considering the 20 years of investments and significant returns on those investments documented in the MLI report, testimony stating Mi’kmaq never really get a chance to move ahead and that there is no federal policy to address livelihood fisheries indicates a disconnect between federal government actions and the experiences of Indigenous communities.

Since treaty rights affirmed in the Marshall decisions are communal rights, resources like licenses, funds, and equipment were delivered to Indigenous governments to create economic opportunities for these communities in the Atlantic fishery.

In his testimony, Colin Sproul of the Bay of Fundy Inshore Fishermen's Association responded to a question by stating “[w]hat you're asking begs the question why Indigenous people still do not have access to the fishery, given that the federal government spent more than $600 million buying fishery access from non-Indigenous communities and delivering it to first nations. It's at the heart of this issue, and it's not being discussed.”

Mr. Sproul provided a partial answer to this when he noted, “[t]he issue is that the majority of that access is then leased back and rented to non-Indigenous fishing corporations, effectively dispossessing first nations people of their legitimate right to fish.”[6]

Federal governments have consistently made significant investments to implement Mi’kmaq treaty rights, but the access provided for moderate livelihood fishing has not always been fully provided to community members by their Indigenous governments. Also, it is unclear what license leasing revenues are distributed to community members and whether community members are aware that the revenues represent the federal government’s attempts to implement their treaty rights to fish for a moderate livelihood.

This is not to say that the money accruing from these licenses is not being spent on important community priorities, but this practice likely contributes to the sense among First Nations that their access to the fishery has not increased in line with their expectations. It also poses a barrier to First Nations people who wish to engage directly in the moderate livelihood fishery.

Access to fisheries must be managed to control fishing effort to levels supporting sustainability of fisheries. This means that conservation limits are necessary and affirmed by the courts. Since access provided to Indigenous communities for moderate livelihood fisheries is meant to benefit members of the community, the government must undertake to ensure its provision of access to fisheries for moderate livelihood fishing achieves its intended purpose, which is opportunities for Indigenous communities to fish for a moderate livelihood.

Recommendation: We welcome more indigenous participation in the fishery and believe this can only be achieved if the federal government and DFO recognize and ensure the intended purposes of licenses, to provide for moderate livelihood fishing, are respected by prohibiting the leasing of such licenses to non-Indigenous harvesters.

All commercial fishing associations that appeared as witnesses before committee expressed support for increased Indigenous participation in Atlantic fisheries. Having witnessed the benefits and tangible results of the MRI supporting moderate livelihood fisheries, most of these associations believe that the MRI was essential to the government’s response to Marshall and to support for Indigenous fishing activities in pursuit of moderate livelihoods.

Contrary to Figure 2 of the Committee report, multiple witnesses expressed views holding that food, social ceremonial fisheries (FSC) are based on the Sparrow decision, not the Marshall decision. Eric Zscheile, co-counsel in the Marshall case, confirmed this by stating that, “…in a food fishery, First Nations have certain priorities when it comes to access to the fisheries. That comes from the Sparrow case and others.” Multiple witnesses also related that moderate livelihood and communal fisheries are part of the commercial fisheries and should be subject to the same DFO regulatory, conservation and enforcement regulations as the commercial fishery.

Evaluation of the Current Rights and Reconciliation Agreement Process

As of April 19, 2021, the Trudeau government finalized Rights and Reconciliation Agreements (RRA) with four Mi’kmaq communities representing less than 12% of the 34 communities holding moderate livelihood fishing rights reaffirmed by the Marshall decisions. The RRA process was first proposed by the Assembly of Nova Scotia Mi'kmaq Chiefs to Ottawa in 2016.

This exceptionally low rate of buy-in by Mi’kmaq communities into the RRA process is best explained by testimony from Chief Darlene Bernard of the Lennox Island First Nation who told the Committee “this whole thing about the RRAs, rights and reconciliation agreements, those are nothing but a slap in the face to First Nations.”[7]

Based on testimony there is a divergence between the views of First Nations and commercial fishing associations as to what should be negotiated with RRAs. On the one hand, First Nations are seeking a self-regulated and self-governed fishery with the only co-management element being the approval by DFO of Fishery Management Plans. This approach would represent a new class of license outside of FSC and commercial licenses called a moderate livelihood license.

Mr. Bernie Barry, President of the Coldwater Lobster Association, testified in speaking of the MRI, “[i]ndustry believes the Crown has fulfilled its fiduciary responsibility concerning the Marshall decision.” Mr. Barry went on to state, “[i]ndustry has been excluded from the most crucial conversations when they concern the transfer of access from the commercial fishery and how that is going to be achieved without harming the industry.”[8]

As such, our understanding is that the Assembly of Nova Scotia Mi'kmaq Chiefs proposed a RRA process in 2016, the Trudeau government through DFO subsequently established a RRA process in which Mi’kmaq communities participated only to find out that the process was not what they understood it to be.

While we conclude that the government either made a commitment or created a false expectation of what the RRA process would entail, the low rate of buy-in by Indigenous communities is a clear reflection that the Trudeau government and Minister Jordan failed to make the RRA process an effective or efficient means of implementing moderate livelihood fishing treaty rights. At the same time their lack of involvement in face-to-face discussions with commercial fishing groups has caused suspicion and hostility to a government process that excluded other Canadians who make a living from the sea.

It must be noted that the Committee’s evaluation of the RRA process was limited by the fact that these agreements have been negotiated behind closed doors and government will not inform Canadians what it is they have negotiated.  

The Trudeau government’s approach through their RRA process is indeed a departure from how successive governments negotiated and implemented access and resources for moderate livelihood fisheries that produced results better than those of the RRA process.

In his testimony, Colin Sproul related how “[t]here are precedents for the government to have nation-to-nation conversations and still take advice from the industry, the Northwest Atlantic Fisheries Organization being the best example, whereby the minister sits with other nations and directly negotiates, and, in a side room, she takes advice from people from all parts of the fishing industry, Indigenous and non-Indigenous alike.”[9]

Thierry Rodon of Université Laval told the Committee that for trust to be built between Indigenous and non-Indigenous interests, “[p]eople need to have places where they can talk to each other and show that there is responsible management on both sides.”[10]

The Trudeau government’s RRA process has failed to mitigate or prevent the frustrations of Indigenous communities, and this failure has precipitated tensions and conflicts between Indigenous communities, non-Indigenous fishers, and the government last fall. The RRA process has also failed to get agreement with First Nations.

Recommendation: The Minister of Fisheries engage personally in face-to-face, parallel negotiations with commercial lobster fishery organizations and Mi’Kmaq representatives to attain a mutual agreement on an acceptable new approach to developing a negotiating process for the moderate livelihood fishery that balances the requirement to accommodate Indigenous moderate livelihood fisheries as determined in Marshall I and Marshall II and to assess historic needs and economic impact of commercial fishers and rural communities.

Better Ways to Engage Interested Parties in Order to Improve Communication, Reduce Tensions and Prioritize Conservation

Aspiring to achieve solutions that satisfy every interest may result in actions that satisfy none. There is an imperative for the Government of Canada, through DFO, to include Indigenous communities and non-Indigenous parties in the cooperative development of solutions required to continue the important work of implementing Mi’kmaq treaty rights to moderate livelihood fishing while also ensuring the conservation of the resource that Canadians depend on.

Conservative members agree with the summary of testimony in the Committee Report section titled Lobster Conservation: DFO-Regulated Conservation Measures. It is disappointing the Committee report willfully ignores testimony received on November 23, 2020, from DFO’s Science Branch detailing scientific reasons why lobsters are not fished at certain times of the year as prescribed by the seasonal commercial fishing restrictions under DFO’s Lobster Fishing Area (LFA) system.

Dr. Kent Smedbol from DFO testified that “[h]andling of lobsters during a soft-shell period or during their spawning might have individual level effects on that lobster, so they're more susceptible to handling. It could lead to increased mortality or sublethal effects.” Dr. Smedbol, when asked by MP Morrisey if “[t]hat's why you have seasons that have been in place for some time,” responded, “yes.” Mr. Morrisey then said, “I could conclude reasonably that fishing in those areas at times of the year would have a long-term negative impact on lobster stock.” Matthew Hardy, DFO Manager, Fisheries and Ecosystem Sciences Division replied, “yes.”[11]

In her November 18, 2020, committee appearance, the Minister of Fisheries and Oceans was asked about the Potlotek First Nation’s moderate livelihood fishery launched in St. Peter’s Bay. The Minister stated: “[t]he fisheries officers are very concerned about the excessive fishing there and about how it could negatively impact the long-term sustainability. We are concerned about that. We want to make sure, as I have said every time I've talked about this issue, that conservation is the priority. As I've said, right now what's going on in St. Peters Bay is more than what even the First Nations moderate livelihood plans have indicated they would be fishing.”[12]

Conservative members are concerned that the Minister’s response acknowledged that excessive fishing was occurring and that there was uncertainty as to whether conservation was being upheld as a priority. The Minister issued no commitment to fulfill her responsibility to ensure sound management and conservation of the fishery.

Recommendation: To protect the sustainable harvesting of the resource, the issuance of Moderate Livelihood lobster licenses by the Minister of Fisheries cannot add new effort to the fishery nor additional active licenses in any LFA above the 2020 numbers without scientific evidence that supports increased catches coming from increased license effort.

Issues That Need to be Addressed by the Federal Government

Greater Cooperation, Transparency and Communication from the Minister

The launch of the moderate livelihood fisheries on September 17, 2020, occurred outside of DFO’s regulated season dates. A statement from the Minister was released in which she stated that “[u]ntil an agreement is reached with DFO, there cannot be a commercial fishery outside the commercial season. A sound management framework is necessary for the management and conservation of fish stocks."[13]

"I want to be clear that DFO continues to address unauthorized fishing,” the Minister continued. “Fishing without a license is a violation under the Fisheries Act and anyone fishing outside the activities authorized under a license may be subject to enforcement action."[14]

Whatever clarity this statement provided Canadians and Indigenous communities was nullified the next day when it was removed from the DFO website and replaced by a news release stating the Minister’s willingness to meet with Indigenous and industry leadership.

In the weeks that followed, additional moderate livelihood fisheries were launched, and the Minister failed to provide Canadians timely or comprehensive communications explaining the legality of the increasing harvesting efforts that were occurring outside of DFO’s regulated season. The absence of proactive communications added to the widespread confusion, frustration, and anger that, in some cases, led to conflict and violence.

This conflict and violence could have been reduced or even prevented had the Minister provided timely and robust communications explaining the legality of the moderate livelihood fisheries. The crisis that occurred in 2020 was the result of the failed RRA process, contradictory statements from the Minister at the onset of the crisis, and her ignoring warnings from Conservative MPs for nine months prior to this crisis.

The committee also heard testimony from Mr. Sproul stating that the minister had also been warned of a potential conflict by commercial fishing associations. “For three years, we've lobbied extensively Minister Jordan and Minister Blair and have raised the public safety concerns,” he said.[15] “Over the last three years, Justin Trudeau's cabinet, as a tactic at the negotiating table, has stopped enforcing existing Canadian fishery policy and law because they don't want to sour the mood at the table. That lack of law enforcement is precisely what led to the chaos and the animosity between fishermen who have peacefully coexisted.”[16]

Mr. Sproul concluded, “Really, at the core of the problem is that the government has good intentions to reach rights reconciliation agreements with the nations, but the problem is that as a tactic during the negotiations they stopped enforcing the law. That only empowered people to keep fishing outside of regulations. It has obviously been a failed tactic. What we've seen come of that is 12 nations get up from the table and not one sit down.”[17]

This testimony cannot be ignored because it reflects the high level of distrust the crisis created between non-Indigenous harvesters and the Trudeau government, the Minister and DFO. All Canadians must have confidence in their government’s commitment to the rule of law and the commitment of the Minister to fulfilling her responsibilities as are bestowed by the Constitution, the Fisheries Act and other relevant regulations and statutes.

As Minister Jordan clearly stated in her November 18, 2020, appearance before the Committee, “DFO is responsible for the overall management of Canada's fisheries and the stocks that they depend on.”[18] A majority of Canadians agree with this statement from the minister, yet the crisis last year demonstrated her willingness, as the head of DFO, to suspend or abandon overall management of Canada’s fisheries for reasons she has not provided to Canadians. This sort of inconsistency of words and actions is not conducive to conservation, sound fisheries management, reconciliation, or the implementation of moderate livelihood fisheries. 

Recognition That the Treaty Right May Be Subjected to Regulation

The Supreme Court declared in paragraph 61 of the Marshall I decision that “[c]atch limits that could reasonably be 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. Such regulations would accommodate the treaty right and would not constitute an infringement that would have to be justified under the Badger standard.”

In paragraph 38, the court also clarified that “[t]he Mi’kmaq treaty right to participate in the largely unregulated commercial fishery of 1760 has evolved into a treaty right to participate in the largely regulated commercial fishery of the 1990s.”

Definition of “Moderate Livelihood”

In addition, the ruling did provide some definition of moderate livelihood when, in paragraph 59 of Marshall I, it states “[a]moderate livelihood includes such basics as ‘food, clothing and housing, supplemented by a few amenities’ but not the accumulation of wealth (Gladstone, supra, at para. 165). It addresses day-to-day needs.”

During the Minister’s appearance, she was unable to provide the committee a definition of the term “moderate livelihood” nor any details reflecting what definition of the term DFO negotiators were utilizing in their ongoing negotiations with First Nations.

One Regulator, One Authority

Non-Indigenous harvesters who appeared before the committee did not oppose a co-management approach but did say such co-management must occur within the framework of a DFO-regulated fishery under the authority of the Fisheries Minister where all Indigenous and non-Indigenous harvesters operate under the same seasons and rules. Witnesses also stated that any co-management framework must adhere to the clear delineations of the authority, roles and responsibilities of the fisheries minister outlined in Marshall.

Mr. Alan Joseph Clarke, a retired DFO Area Chief of Enforcement, testified that “DFO must enforce one set of rules for everyone…commercial fisheries for Indigenous and non-Indigenous fishers must be conducted under one set of rules and regulations including seasons.”[19]

Paragraph 41 of Marshall II states, “[t]he Minister’s authority extends to other compelling and substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups.”[20]

Factors identified by the Supreme Court to guide the Minister’s regulatory authority are not limited to conservation. In paragraph 41 of Marshall II, the court points out that Marshall himself submitted that “it is clear that limits may be imposed to conserve the species/stock being exploited and to protect public safety”. Marshall’s counsel also submitted that “Aboriginal harvesting preferences, together with non-Aboriginal regional/community dependencies, may be taken into account in devising regulatory schemes.”

In testimony, Eric Zscheile stated, “What they're saying in Marshall II is that this was part and parcel of what Marshall I is all about as well. Marshall I cannot stand for the proposition that the federal government does not have ultimately the ability to regulate for things like conservation and public safety.”[21]

While all members of the Committee recognize the necessity of Indigenous participation in aspects of fisheries resource management, protection, decision-making and program delivery, it is unclear how the Minister of Fisheries and Oceans can uphold her ultimate responsibility for the overall management or governance of Canada’s fisheries if the associated authorities for fisheries regulation and governance are disbursed.

Adjacency

The Committee Report incorrectly dismisses the existence of the principle of adjacency to fisheries access provided to Indigenous communities for moderate livelihood fisheries, affirmed by the Supreme Court. The Committee ignored paragraph 17 in Marshall I, which states, “the treaties were local, and the reciprocal benefits were local. In the absence of a fresh agreement with the Crown, the exercise of the treaty rights will be limited to the area traditionally used by the local community with which the ‘separate but similar’ treaty was made.”[22]

Further, the House of Commons Standing Committee on Fisheries and Oceans said in its 1999 report on the Marshall decisions that, “[t]he Court confirmed that the treaty right is a communal right to be exercised by the authority of the local community and that it is limited to the area traditionally used by the local community.”[23]

The Supreme Court also affirmed that this treaty right under section 35 of the Constitution only applies to First Nations which signed the Peace and Friendship treaties.[24]

First Nations other than the Acadia and Bear River engaging in moderate livelihood lobster harvest in St. Mary’s Bay and South West Nova Scotia are in violation of the stipulations of the Marshall decisions without a commercial license that allows them access. Many fishers in these areas are from Indigenous communities 300 kilometres or more from the St. Mary’s Bay.

Recommendation: Only DFO has both the regulatory and enforcement responsibility under the rulings by the Supreme Court of Canada. Any moderate livelihood fishery for First Nations must fall under DFO regulation and enforcement as outlined by the Supreme Court of Canada. Any co-management of the moderate livelihood fishery must fall under this structure and must balance mutually agreeable and mutually beneficial outcomes for non-Indigenous attachment to the fishery.

Recommendation: Moderate Livelihood licenses are commercial fishing licenses, and as such must be subject to the same regulations including seasons as all commercial fishing licenses.