The following is the Atlantic Policy Congress of First Nations' Chiefs response to the Parliamentary Standing Committee Report on the Fishery, which was completed on December 16, 1999.

 

Introduction

On December 16, 1999, the Parliamentary Standing Committee on Fisheries released its report and recommendations on the Supreme Court of Canada decision of Marshall v. R.. The Atlantic Policy Congress of First Nation Chiefs Secretariat, a representative body of the leadership of the Mi¹kmaq, Maliseet and Passamaquoddy, has reviewed this report and finds that it falls far short of its expectations.

In our opinion, the report was an opportunity for Canada to demonstrate some vision and embark on a new and stronger relationship with the Mi¹kmaq, Maliseet and Passamaquoddy. Instead it has chosen to deviate as little as possible from the status quo - a status quo which has always been challenged by the Mi¹kmaq, Maliseet and Passamaquoddy.

The Mi¹kmaq, Maliseet and Passamaquoddy not only see much needed economic opportunities within the Marshall decision but also an opportunity to have significant input in the management of resources within our traditional territories. We have always maintained that we have a responsibility of stewardship over our traditional lands and resources and we will continue to assert this position. We envision having the ability to restore our stewardship role and the implementation of our traditional perspectives of resource management into modern day policy.

We have always maintained and will continue to maintain that conservation is our main priority. Unfortunately, the Report of the Standing Committee does not contemplate these issues.

This response shall attempt to address each of the recommendations of the Standing Committee.

 

Accommodation of Treaty Rights

"Any transfer of access to fisheries resources to First Nations communities must be accomplished through a federal government-funded voluntary buyback of a portion of existing commercial licenses as they become available."

The Mi¹kmaq, Maliseet and Passamaquoddy realize that all commercial fisheries in the Atlantic are fully subscribed and that there is no room for new entrants. However, given the potential capital expenditures associated with buybacks, we believe that these financial resources would be better invested in the purchase of equipment and training for Mi¹kmaq, Maliseet and Passamaquoddy fishermen and enforcement personnel. Financial resources are also required for the development of such areas as Mi¹kmaq, Maliseet and Passamaquoddy scientific and research capacity, and legal and governance capacity in the area of natural resources. Accommodation can be achieved through other avenues such as reduced allocations to non-Aboriginal fishermen. This avenue will also mitigate any potential negative impacts on coastal communities dependent upon fisheries.

"The emphasis should be on the acquisition of Œcore¹ multispecies license packages for the local area for transfer to aboriginal communities rather than the transfer of lobster licenses or any other particular species."

"In order to encourage the sale of licenses, the federal government should offer a limited lifetime capital gains exemption to fishermen."

"Licenses must be transferred to First Nations communities as communal licenses."

The Mi¹kmaq, Maliseet and Passamaquoddy Sect. find this recommendation to be consistent with its own position on the nature of the recognized treaty right. However, we assert the right to issue our own licenses or permits consistent with our own rules and regulations.

"Where local agreements can be reached to make room for new aboriginal entrants by fishermen each voluntarily giving up a portion of their quota of lobster traps, in a manner that does not increase the overall fishing effort, the federal government should support those agreements."

The Mi¹kmaq, Maliseet and Passamaquoddy fully endorse this recommendation and shall support localized agreements of this nature whenever they can be achieved. We acknowledge the efforts of those non-Aboriginal fishermen who have agreed to this arrangement and see this as a model for Mi¹kmaq, Maliseet and Passamaquoddy entry into fully subscribed fisheries. We view these arrangements as models for the Mi¹kmaq, Maliseet and Passamaquoddy to gain entry into commercial fisheries.

 

Conservation

"Fisheries must be managed with the long-term objective of conservation of fisheries resources."

This recommendation is consistent with our vision of the future for the Atlantic fishery and we continue to maintain that we have a significant role to play in this objective. As new players in the modern day commercial fishery, we will advocate for the implementation of bona fide conservation measures, as opposed to industry-driven policies. As the only "interest" with a constitutionally protected right to the fishery, we will hold Canada to a high standard on conservation matters.

"Effective enforcement is crucial to conservation. DFO must rigorously enforce fisheries regulations with impartiality."

The experience of our fishermen with DFO personnel in conducting their food and commercial fisheries has been one of intimidation and harassment. Furthermore, we are well aware of abuse of the resource by non-Aboriginal fishermen. As we have always stated, conservation is our main priority and we welcome this recommendation of impartial enforcement.

"DFO must be provided with the resources to fulfil its obligation to conserve the resource. This means that DFO must have sufficient numbers of enforcement officers and that those officers must be provided with the equipment to do their job safely and effectively."

We believe that with adequate training, Mi¹kmaq, Maliseet and Passamaquoddy community members would be fully capable of conducting enforcement activities. We advocate the recognition and financial commitment by Canada to a Mi¹kmaq, Maliseet and Passamaquoddy natural resources monitoring and enforcement body with jurisdiction over all fisheries and enforcement activities. Not only would this help to alleviate the potential strain on fisheries resources by diverting Mi¹kmaq, Maliseet and Passamaquoddy human resources into enforcement and away from harvesting, but it would also serve to alleviate the severe unemployment problems faced by all Mi¹kmaq, Maliseet and Passamaquoddy communities.

"Aboriginal enforcement officers should be trained as full fledged officers with the capacity to supervise any and all fisheries or other enforcement activities. There should be one standard for all personnel to enforce the rules."

We endorse training for Aboriginal enforcement officers but once again, we would advocate the establishment of a Mi¹kmaq, Maliseet and Passamaquoddy monitoring and enforcement body with jurisdiction over all fisheries and enforcement activities. We conditionally endorse the principle of "...one standard for all personnel to enforce the rules" with the understanding that culturally relevant practices must be understood and respected.

"There should be zero tolerance for fisheries violations. Sanctions for illegal fishing or the purchase of illegally caught fish should include minimum penalties to provide guidance to the courts and to achieve more consistent treatment of offenders."

We do not disagree with the principle of "zero tolerance" for fisheries violations but we emphasize the need for Mi¹kmaq, Maliseet and Passamaquoddy participation in defining exactly what constitutes a violation. We would also emphasize our vision for the development of distinctive Mi¹kmaq, Maliseet and Passamaquoddy alternatives to the Canadian court system and therefore, we must reject the principle of "minimum penalties".

 

Fisheries Management

"Commercial fisheries for aboriginals and non-aboriginals must be conducted under one set of rules and regulations for all participants in a particular fishery."

The Mi¹kmaq, Maliseet and Passamaquoddy do not disagree with the principle of one set of rules and regulations but we emphasize that we must have a significant role in the development of those rules within good faith negotiations. Furthermore, we would also emphasize that any regulations Canada chooses to unilaterally put forward must not infringe upon the recognized right and if it does, it must meet the rigorous test of justification laid out by the Supreme Court of Canada in the Badger decision.

"DFO must enforce one set of rules for everyone and that it must have the resources and personnel to do the job."

As stated earlier, our vision is to have a significant role in the development of the rules and regulations within good faith negotiations. We also envision the Mi¹kmaq, Maliseet and Passamaquoddy playing a significant role in enforcement activities as well.

"A co-operative, co-management and community-based approach to management of fisheries should be promoted."

The Mi¹kmaq, Maliseet and Passamaquoddy emphasize here that co-operative, co-management and community-based approaches are evident in all of our principles of operation. This shall continue as we engage in fisheries management. 

"Snowcrab fishery co-management agreements and salmon watershed committee structures should be examined as possible models for the integration of aboriginal fishermen into other fisheries."

 

Food Fishery

"The food fishery must be controlled to ensure that it is being conducted as a genuine food fishery and not an illicit commercial fishery." 

We believe that there must be enough flexibility within the food fishery to allow for limited sales to cover incidentals associated with conducting the fishery. We also wish to state here that prior to the Marshall decision, most of the "illicit commercial fishery" occurred because of the non-recognition of the rights asserted and upheld in Marshall.

"There must be an examination of the question of whether the food fishery should be conducted during the same seasons as regular commercial fisheries."

 We believe that the imposition of seasonal restrictions upon the food fishery constitutes an infringement on the treaty right to fish for sustenance purposes. The food fishery has been traditionally relied upon by the Mi¹kmaq, Maliseet and Passamaquoddy and must be accessible year round. It is worth noting here that the Supreme Court of Canada established the food fishery as a priority right in the 1990 Sparrow decision. This means that this right must be fully satisfied before non-Aboriginal commercial or sport fishing can take place.

"There should be an examination of lobster fishing seasons and their impact on conservation."

 The Mi¹kmaq, Maliseet and Passamaquoddy agree that there should be an examination of lobster fishing seasons but we believe that we must play a significant role in any such examination.

"DFO should vigorously prosecute, without partiality, all of those who take part in illegal sales of fish caught for food, social and ceremonial purposes. Any buyer caught illegally purchasing lobster for a second time should lose his or her license in addition to any other penalty."

As stated earlier, we believe that Mi¹kmaq, Maliseet and Passamaquoddy fishermen should be permitted a limited amount of food fishery catch for sale to offset the cost of incidentals.

"All catches of lobster whether in the commercial or food fisheries should be properly monitored and documented in order that DFO has reliable harvest statistics."

We believe that with the proper resources, Mi¹kmaq, Maliseet and Passamaquoddy enforcement personnel and other Mi¹kmaq, Maliseet and Passamaquoddy entities are fully capable of monitoring and documenting lobster and other species catches and the data accumulated shall be readily accessible to the DFO.

 "Regulations for the food fishery should be reviewed for the purpose of tightening them up in order to simplify enforcement."

As stated above, the Mi¹kmaq, Maliseet and Passamaquoddy do not object to regulations provided they are significantly involved in the development of those regulations in good faith negotiations and provided that they do not infringe upon our rights.

 

Localized Fishing Pressure

"As licenses are transferred to aboriginal groups, particularly in the lobster fishery, a way must be found to prevent excessive localized fishing effort in order to avoid adversely affecting the health of stocks, particularly in sensitive areas such as spawning and nursery grounds. No greater fishing effort should be allowed than is already the case, including at the local level."

The Mi¹kmaq, Maliseet and Passamaquoddy are unanimous on the need for formal protocols to ensure, among other things, that there is no excessive effort in a particular area. In the interim, the Mi¹kmaq, Maliseet and Passamaquoddy have established internal interim protocols to address such matters.

 

Process

"The federal government must be more proactive in facilitating the negotiations by providing stakeholders both aboriginals and non-aboriginals with funding and resources (including technical advice) to participate effectively in the process."

 "The federal government must put in place an interim fishing plan by spring 2000 to demonstrate its good faith. This plan could include: a fisheries training program; a reduction and sharing of traps in areas where agreements have been reached; leasing of licences; and, purchase of licences."

The Mi¹kmaq, Maliseet and Passamaquoddy stress here that any plan put in place must be ours. History has proven time and again that the federal government is incapable of meeting the needs and concerns of the Mi¹kmaq, Maliseet and Passamaquoddy and that any plan they put forward will likely be doomed to failure. We are fully capable of planning our own fishery.

"The federal government must provide DFO with the financial resources to accomplish this task in the next budget."

"The mandate for the MacKenzie process must be amended to be more balanced and to let all stakeholders know that they have full access to the process."

 The Mi¹kmaq, Maliseet and Passamaquoddy remind the committee that the main stakeholders in the Marshall decision are the Mi¹kmaq, Maliseet and Passamaquoddy people and that they should remain the focus of any processes revolving around the decision.

 

Remaining Issues

 "The issue of whether non-status persons of Mi¹kmaq, Maliseet and Passamaquoddy ancestry are entitled to treaty rights affirmed by Marshall must be resolved."

 We believe that the issues of membership, citizenship or who is entitled to be a beneficiary of treaty rights is a fundamental issue of governance and it is solely the decision of the Mi¹kmaq, Maliseet and Passamaquoddy to determine these issues and not Canada. Having stated this, we believe that this issue has been confused by the Indian Act and its membership provisions and therefore, it is Canada¹s responsibility to provide the necessary resources to the Mi¹kmaq, Maliseet and Passamaquoddy to address the beneficiaries issue.

 "The issue of whether treaty rights affirmed by Marshall apply to bands in Quebec must be resolved."

 The Mi¹kmaq, Maliseet and Passamaquoddy do not believe that this is a legitimate issue and that it was in fact resolved at the time of the treaty signing. We believe that an examination of the "spirit and intent" of the relevant treaty will prove that the Treaty of 1760-61 applies to all of our traditional territories including Quebec and Newfoundland.

"The concept of Œmoderate livelihood¹ must be clarified or better defined."

The Mi¹kmaq, Maliseet and Passamaquoddy agree that this concept must be better defined but, in order to ensure that the spirit and intent of the Treaty of 1760-61 is fully realized and the decision is fully implemented, we must determine this ourselves.

 

Minority Reports

The Report of the Standing committee included the release of minority reports from the Reform Party and the Bloc Quebecois. The Mi'kmaq/Maliseet/Passammaquoddy Chiefs have also reviewed these reports and offer the following comments.

 

Minority Report of the Reform Party

The Minority Report of the Reform Party and public statements on the Marshall decision by Fisheries critic John Cummins indicate that the Reform's party definition of equality is fundamentally different from that of the Mi'kmaq, Maliseet and Passamaquoddy. We maintain our nationhood status and that the treaties our Chiefs entered with the British crown were meant to guarantee our equality as nations and believe that the historical record is the proof.

The Reform Party has put forward the concept of individual equality and the belief that concepts such as aboriginal and treaty rights are a threat to individual equality. We note Recognition of our treaties and of our aboriginal and treaty rights are not a threat to individual equality and the rights set out in the Canadian Charter of Rights and Freedoms. Reform policy view that aboriginal people should not enjoy a special status under the Constitution is unfounded. The Mi'kmaq, Maliseet and Passamaquoddy people are not seeking a special status we are seeking recognition of our status as nations and equality. There is no basis in fact or in law to deny our nationhood. Such principles were affirmed in the Royal Commission on Aboriginal Peoples.

The British Columbia experience following Sparrow clearly show that lessons can be learned. The First Nations of B.C. it was our understanding that it was the recognition of the right in Sparrow which was the source of the problem. We believe that Canada should have gone further and recognized the First Nations= right to manage and regulate their own fishery instead of unilaterally imposing the Aboriginal Fisheries Strategy. Based on Sparrow there should have been recognition and support for a First Nations= scientific entity distinct from the Department of Fisheries and Oceans to ascertain the state of the fishery. Such measures would have prevented irresponsible accusations against First Nations for the state of the Fraser River fishery. All should heed from the lessons of B.C..

As was seen in both Burnt Church, New Brunswick and Yarmouth, Nova Scotia, the fallout from the Marshall decision has been volatile and marked by misunderstanding and fear mongering. Since the decision, we have monitored statements made by both the government and opposition. Reform has chosen to promote the divisiveness and fear which has surfaced within the region in the aftermath of Marshall. The Mi'kmaq, Maliseet and Passamaquoddy are reaching out to their neighbors locally in search of solutions. We believe that we can build upon the things we agree upon, a common future.

Bloc Quebecois Complementary Opinion on the Report of the Marshall Decision and Its Implications for Management of the Atlantic Fishery

The report of the Bloc Quebecois is consistent with the overall Report of the Standing Committee. We note the Bloc's concerns about provincial jurisdictional integrity. We would emphasize here, we must have a key role to play in the development of any rules. We would also stress that we alone must determine the meaning of a moderate livelihood. We applaud the Bloc=s call for good faith negotiations on the part of the government. This is a standard which must be followed by Mr. Mackenzie the Chief Federal Representative.