Moving Toward Implementation of Mi'kmaq, Maliseet and Passamaquoddy Treaty Rights with Respect to Fisheries

Mission Statement

The Atlantic Policy Congress is the unified voice of the Mi'kmaq/Maliseet/Passamaquoddy Chiefs and represents a strategic, collective approach to developing policies to support the principles of self government by self-determining peoples and First Nation governments. We are working for the people, with the people, through existing First Nation governments.

The Atlantic Policy Congress Secretariat (APC) is committed to advancing a pragmatic, 
conceptual framework to move forward on treaty implementation. We wish to outline the broad 
parameters of an approach to deal with outstanding fisheries harvesting and management 
issues. It is the APC Chiefs' firm belief that a reasoned, negotiated resolution of current 
impasses will demonstrate to all Canadians that aboriginal and treaty rights are dynamic, 
living contracts between our governments. When adhered to, these rights provide the basis 
for a thriving and respectful treaty relationship among Mi'kmaq, Maliseet, Passamaquoddy 
Nations and the broader Canadian public and for much needed community based capacity 
building and empowerment.

It is understood that both the Departments of Fisheries and Oceans and Indian and Northern 
Affairs will be seeking Cabinet direction with regard to future process and negotiating 
considerations this fall. Our hope is that we can initiate a productive dialogue between 
First Nation representatives and federal officials to inform both the proposals to be 
brought forward to Cabinet later this year and bilateral negotiations thereafter.


Major Implemenation Considerations To Be Addressed


Duration of Agreements

While the federal government chose to pursue interim agreements this year with First 
Nations, it must be conceded by all parties that it is only within the context of multi-year 
agreements that First Nations will be able to achieve the license, quota and gear transfers, 
training and other fisheries related commercial opportunities that will move our communities 
toward the standard of moderate livelihood that the Supreme Court has directed. A 
comprehensive, building block approach will allow us to foster sustainable economic benefit 
for our members while allowing government to maximize economic return on the investment it 
makes in capacity transfer. The extended timeframe is mandatory to ensure effective 
training, voluntary transfer of substantial numbers of licenses, diversification into 
secondary commercial fisheries activities and an orderly evolution of management 
participation by First Nations. This approach must be incorporated into future arrangements 
in funding agreements.


Community Based Capacity & Empowerment

Atlantic First Nations, through our history and culture, have much to offer DFO's current 
management regime. Traditional Mik'maq/Maliseet/Passamaquoddy values and knowledge, if 
allowed expression in the management, scientific and harvesting policies of the federal 
government will benefit the resource and all who depend upon it. Further, we intend to 
organize collaborative fisheries structures among First Nations and broader Tribal 
organizations in order to maximize our contribution to conservation and sound management 
practices. These organizational structures will facilitate effective interaction with DFO 
management structures and will require federal support.

It is readily acknowledged that First Nations will have to build capacity at the community 
level in a variety of professional and technical fields to become fully involved in the 
existing management and harvesting regime and our intent to do so is captured in sections 4 
and 5 of this paper. However, this does not diminish APC Chiefs' expectation that 
traditional knowledge and values will be acknowledged and accommodated in future policy 
development. The federal government has recently made an important step in this regard by 
recognizing the role of traditional knowledge in the implementation of the proposed Species 
at Risk Bill. In keeping with this precedent, APC Chiefs expect to work with the federal 
government to incorporate our values and knowledge into fisheries policies, establish 
collaborative, internal organizational structures, and build community capacity in fisheries 
related areas of expertise to become full players in this sector.


Scoping of Moderate Livelihood Criteria

The APC Chiefs want to work with the federal government to establish general policy 
principles regarding moderate livelihood standards to guide future fisheries negotiations 
between federal officials and First Nations. To this end, APC has initiated economic, 
commercial and demographic analysis to evaluate possible interpretations of the Court's 
decision in this regard. A centerpiece of this analysis will be community level information 
gathering with respect to specific aspirations, training and capital requirements, to 
facilitate entry into fisheries-related employment. Clearly, the unique demographics of 
aboriginal communities (e.g. 50% of population 15 and under) suggest that maintaining a 
standard of a moderate livelihood will require ongoing growth in harvesting access. At 
present, APC's goal is to develop a macro-level five-year plan. We would welcome the 
opportunity to share information and discuss a joint process to find common ground on a 
pragmatic interpretation of "moderate livelihood" to inform and support negotiations at the 
individual First Nation level.


Management Participation

To date the federal government, in both word and deed has taken the position that the 
Supreme Court's reference to the federal ability to regulate fisheries in the Marshall 
decision represents a full endorsement of the status quo in terms of DFO's current 
management regime. APC Chiefs hold a different view. Firstly, the Marshall decision speaks 
primarily to the issue of commercial fishing as a treaty right; it does not address 
management involvement, as it was not germane to the case before the Court. Further, it 
must be noted that in numerous regions of Canada, joint management regimes for fisheries 
have already been negotiated with many aboriginal groups that provide a significant 
management role without compromising Ministerial accountability and regulatory powers. 
These examples, while not necessarily directly transferable to 
Mi'kmaq/Maliseet/Passamaquoddy First Nations, represent tangible evidence that the existing 
management regime can, and should, be changed to accommodate the unique traditional 
knowledge, rights and interests of First Nations peoples in the Atlantic fisheries.

The APC Chiefs' perspective is that its member First Nations are seeking to negotiate the 
implementation of our treaty rights. We do not believe negotiations should be restricted 
solely to the subject matter dealt with in Marshall. To limit these negotiations in such a 
manner is to condemn all parties to further litigation, and the uncertainties, lengthy 
delays, and disorder this option entails. This is clearly demonstrated in the treatment of 
various First Nations who rejected federal negotiations this year.

Instead let us engage in serious fisheries-related governance discussions that explore both 
areas of policy convergence and legitimate, if differing, policy objectives of our 
respective governments. Within this construct, alternative joint management regimes can be 
considered without compromising either conservation or the orderly conduct of fisheries. 
Further, such specific measures as enhanced First Nation staffing and training requirements 
and incremental transfer of authorities to First Nations could be contemplated that would 
ultimately result in significantly improved fisheries conservation outcomes. The APC Chiefs 
challenge the federal government to come to the table on this vital component of treaty 
implementation prepared to lead through innovation and not control. 


Training

Nowhere has the short term nature of past negotiations been more problematic than in the 
context of training. The strength of implementation measures (and the hope of our young 
people for a better future) rests with access to appropriate training in a wide variety of 
fisheries-related fields. Together we need to build a long-term training plan that 
incorporates academic and on the job training opportunities, provides for entry at various 
organizational levels and builds a number of key partnerships that enables a fast-track 
approach to developing core-competencies in harvesting, management and related fields for 
First Nation peoples. The APC Chiefs believe that this component of negotiations warrants 
detailed attention in order that First Nations move towards a moderate livelihood that is 
sustainable. We are seeking a demonstrable, co-ordinated response from the federal 
government to assure us they share this goal.


Process

The APC Chiefs propose that a formalized senior level joint working group be immediately 
struck comprising of APC Secretariat and federal representatives to deal with establishing a 
treaty implementation framework that addresses all of the considerations cited herein which 
were previously detailed in Sydney in October, 1999. This measure will inform but not 
replace the subsequent detailed negotiations that will continue to occur at the First Nation 
level.

Federal involvement in this process must include both DIAND and DFO and on a subject 
specific basis, Justice, HRDC, ACOA and potentially other key federal participants.

The urgent requirement to commence such a forum for negotiation is obvious. The APC Chiefs 
are prepared to start immediately and work on an intensive basis to reach key agreements by 
March 15, 2001. Clearly, a priority of the joint working group would be to scope out needed 
input for the fall Cabinet submission. Finally, we are willing to consider any logical 
proposal to establish a joint information gathering and analysis capacity to serve this 
process.


Conclusion

Our goal in seeking a process and agenda through which rapid, substantive progress can be 
made on establishing a fisheries negotiating framework reflective of our treaty rights is 
simple. It is to move as quickly as possible to support community-based capacity building 
and empowerment. It is for this reason that our first priority is a determination of 
individual First Nations' needs and aspirations. Through early, comprehensive discussions 
of the joint working group we want to establish ready access to training across the spectrum 
of fisheries activities so that community members can move forward in their chosen careers. 
We want to speak of rational and incremental approaches to recognizing traditional values 
and knowledge in fisheries policy development and incorporating a First Nation management 
role into the broader fisheries management regime, particularly at, but not limited to, the 
local level. Finally we want to explore common ground regarding a standard of "moderate 
livelihood" that will help each First Nation determine for itself its optimal arrangements 
within this standard. 

A thoughtful, well-reasoned move from the status quo through capacity building to 
empowerment for each First Nation is an incremental process. Therefore, agreements reached 
should be longer term in order to capture a distinct vision for the future and the 
obligations on each party to make this vision a reality. Longer term agreements will also 
strengthen individual First Nations' capacity to live in harmony with their non-aboriginal 
neighbours. The current uncertainty is undermining decades of cooperative coexistence for 
most communities.

APC Chiefs are striving to offer practical mechanisms and approaches to the federal 
government to resolve very contentious issues. We call on Ministers Nault and Dhaliwal to 
respond to the challenge of working out a viable, comprehensive treaty implementation 
strategy on fisheries with us. We believe the approach we've described best addresses the 
urgency surrounding this issue. However, we also understand that tripartite processes, 
inclusive of provincial participation, have considerable merit. Where feasible, a 
tripartite negotiation might be initiated to look at all pertinent non-fisheries topics. 
Progress made via the fast-tracked bilateral fisheries joint working group may be 
incorporated into such tripartite discussions at a later date. 

This is a time and an opportunity for vision and innovation. Let's move forward with 
processes that meet the unique requirements of our First Nations. The relationship we build 
over the next year will likely characterize dealings between our governments for years to 
come. Let it be one of respect and partnership.