Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 28 - Evidence, April 25, 2002
OTTAWA, Thursday, April 25, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 10, respecting the national marine conservation areas of Canada, met this day at 9:01 a.m. to give consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our witness this morning is Mr. Russ Jones, a consultant to the B.C. Aboriginal Fisheries Commission.
Mr. Jones, perhaps you would speak for 10 minutes and then we will ask questions. Please proceed.
Mr. Russ Jones, Consultant, British Columbia Aboriginal Fisheries Commission: Mr. Chairman, and members of the committee, I would thank you for inviting us to make this presentation today.
I will make a presentation on behalf of two organizations, one of which is the B.C. Aboriginal Fisheries Commission. That organization is a forum for a majority of First Nations in British Columbia. The commission deals with issues that include working, over the last three years, with First Nations in B.C. on marine protected areas, which is a broader designation than marine conservation areas.
We have worked on this presentation with the First Nations Summit, which is an organization representing First Nations that are in the B.C. treaty process. I am not sure of the exact number, perhaps 45 to 50 First Nations in B.C. are involved in that process, and the summit represents them on issues of common importance.
I will start by saying that we do recognize that protected areas are a necessary part of modern society, but there are issues particular to them. They can have significant impacts on Aboriginal peoples and their activities on the land. We believe it is important that marine conservation areas should not be established at the expense of Aboriginal peoples, who have protected these areas and depended on these waters and lands for countless generations.
That said, I would emphasize that our presentation is based on trying to find ways that First Nations can best work with government on how and where these areas should and could be established in the province. The changes that we are proposing are, I would say, positive changes meant to reflect agreed processes occurring particularly on the B.C. coast.
The B.C. Aboriginal Fisheries Commission and the First Nations Summit participated in several meetings with Parks Canada last summer to talk about Bill C-10 and, as a result of those meetings, there were some amendments to Bill C-10. However, there still are several issues particularly relating to the processes in British Columbia we believe need to be addressed in the legislation.
One of the impacts that marine conservation areas can have on First Nations is reduced access to fish and other resources depending on what kinds of special regulations there might be in marine conservation areas. As well, if an increase in tourism is expected, we believe that any decisions should be made in consultation with Aboriginal peoples. Having a large influx of tourists or visitors affects how you can live on the land and what you can do on the land. Another impact would be a loss of economic activity. Fishing has always been an important part of our economy, especially for our coastal First Nations, and marine conservation areas do have the potential of limiting that activity.
I would like to give you a little background on the situation in British Columbia. That is covered under part A of the brief that we provided. Most of British Columbia is not under treaty at the moment. On the coast, the only treaties that are in effect are the Douglas treaties, and those treaties were completed in the mid-1800s and mainly cover parts of Vancouver Island. There is also the recently concluded Nisga'a Final Agreement, which is a modern-day treaty.
For the rest of the coast no treaties are in place. I believe you are all familiar with the recent decisions on Aboriginal title and Aboriginal rights. There is considerable uncertainty in the province, including the areas covered by the Douglas treaties, which are similar to treaties on the east coast, with regard to fishing rights.
As I mentioned, many of the First Nations are involved in a treaty process at the moment, and they are trying to resolve this uncertainty through a process of negotiation. Several initiatives are underway. This process has not proceeded as quickly as everyone had expected. When the process started up it was believed that it might take 10 years to complete treaties but, as of today, there have been no new treaties as a result of that process.
From news reports, I am sure honourable senators are familiar with issues such as the referendum on the treaty process that is currently going on. That will lead to further delays in the process. In the meantime, the federal government has worked with First Nations and the province on an incremental approach to the treaty process involving what are called ``interim agreements.'' This is a step-by-step process toward treaties, and those may take longer to complete.
The changes that we are proposing focus on supporting that process which has been agreed to. There is a paper from April 28, 2000, a statement of interim measure principles for treaty negotiations in British Columbia, which has been agreed to by the province, the federal government and First Nations.
I will now go into some of the specific changes we are asking you to consider. I would turn to the establishment of reserves for marine conservation areas, section B of our brief. We understand that clause 4(2) is intended to protect the rights of First Nations. There is a choice as to where the Parks Canada could establish a Marine Conservation Area. Under this particular clause, a reserve could be established where Aboriginal rights are under negotiation or there is uncertainty about that. As that clauses is worded, it appears as if Parks Canada could establish a reserve once it has been identified. We feel quite strongly that there should be a provision that states that Aboriginal people must be consulted before that occurs. This clause is one of the few that mentions Aboriginal rights. It is important to have that provision. That would make the legislative intent of the reserve designation that much clearer.
The other term that we have some difficulty with is ``land claims agreement.'' That term appears at several places in the proposed legislation. We know that term was used to be consistent with existing land claims agreements. It was found there were inconsistencies between the proposed legislation and some of the land claims agreements and so that was added.
We are involved in the treaty process in British Columbia. We believe that the term, ``land claims agreement,'' is narrower than the term, ``treaties,'' and land claims agreement does not necessarily include the treaties that may be negotiated in our area under the B.C. treaty process.
We have provided some background in our brief about why we take that position. In particular, section 35(3) of the Constitution states:
For greater certainty, in subsection (1), ``treaty rights'' includes rights that now exist by way of land claims agreements or may be so acquired.
If our treaties are not determined to be land claims agreements, then they may not fall within that term. That is a narrower term than the term ``treaty.''
Another issue that concerns us has to do with the Douglas treaties. In our discussions with Parks Canada, they pointed out that there are no provisions in the historic treaties that refer to marine conservation areas. They did not believe that they had to necessarily refer to them.
We believe that it is quite likely that those treaties will have an effect on marine conservation areas and that there likely will be some agreement reached with First Nations before marine conservation areas might be established. The term, ``land claims agreements'' does not encompass that wording and would not necessarily accommodate agreements that relate to historic treaties. Those historic treaties may not be considered to be land claims agreements.
The third issue of concern in B.C. relates to a requirement for clear title before Parks Canada may establish a marine conservation area. It is short-sighted for Bill C-10 not to consider the possibility that agreement might be reached between First Nations and Canada to share title, or to have co-existing title in areas. This has happened in some areas such as the Yukon First Nation Final Agreement, where there is shared title. You may have protected areas where there is shared title. The proposed legislation would make impossible for Parks Canada to establish a marine conservation area, because there is not clear title.
The other issue has to do with the possibility of interim agreements being reached prior to the treaty. It is possible that a First Nation could support a marine conservation area, but it would not be able to move ahead. They may reach an interim agreement, but that could not be established because it would not be allowed for in the legislation.
We are asking for changes to three areas. Clause 5 deals with the establishment of marine conservation areas listed in Schedule 1 to the bill. We are asking for wording that would be expanded to include not just lands claims agreements, but also treaties or other agreements that have been reached with the affected Aboriginal peoples.
Clause 6 deals with the establishment of reserves to marine conservation areas. These are the areas where Aboriginal rights may be negotiated with First Nations.
Clause 9 is another area where the term ``land claims agreements'' is mentioned and we are asking that that be expanded to include other agreements with First Nations. This would be following up on the agreed policy between First Nations, Canada and the provinces that interim agreements maybe negotiated and, if they are, they need to have some effect.
We would address two other areas. Section E of our brief deals with the management and administration of marine conservation areas. Clause 8(5) provides for agreements between Parks Canada and First Nations, as well as other governments or persons for management administration.
Given the special role that Aboriginal peoples are expected to have in protected areas, we believe that there should be some additional clarification that would make it clear that the minister may enter into agreements with Aboriginal governments, or bodies established under land claims agreements, to share the administration, management and control of these areas.
Our final point has to do with Aboriginal rights. Aboriginal rights are mentioned in the proposed legislation in one area where it states that the proposed legislation should not abrogate or derogate from Aboriginal rights, and in another where it relates to the establishment of reserves.
We do not think this provides adequate direction for how these reserves may be established and so, in our meetings with Parks Canada, we have asked for several things. We have requested a new clause in the preamble that would recognize the importance of marine areas to Aboriginal peoples in coastal communities. As it appears in the preamble now, Aboriginal peoples could be considered as part of coastal communities or as one interest group in the coastal area, but there is no specific mention of Aboriginal people. We feel there should be a specific reference to deal with that in the preamble.
Clause 4(1) talks about the purpose of marine conservation areas. Here, too, I think Canada is saying that the purpose is for the enjoyment of peoples of Canada and peoples of the world, but it makes no mention of Aboriginal peoples who have lived in the area for countless generations and have important attachments to that land. Therefore, we believe that should be one of the purposes of marine conservation areas and it is a way of moving ahead, with Parks Canada and First Nations together, towards protecting areas that are important to all of us.
The Chairman: Thank you very much Mr. Jones.
Senator Watt: Welcome Mr. Jones. I am one of the Aboriginal members of this committee.
Putting aside all the arguments that you have put forward about this bill not adequately recognizing the unfinished business in relation to the Aboriginal people and the Government of Canada regarding claims, your argument is almost identical to the argument laid out by the Yukon Indians. They felt that their rights were being impacted without dealing with their claims, and they felt the Territorial Government of the Yukon was settling claims before those claims had been put to the Canadian government. The Canadian government has specific obligations towards the Aboriginal people. Your argument seems to be along that line.
However, I will put that aside for a moment to ask you about a simple reality that we come across as Aboriginal people from time to time, whether on the land or at sea. This particular bill provides for the establishment of marine conservation areas in, for example, geographical locations where no activities are being conducted. As an Aboriginal person I know that, at times, when the government steps into an area that it is not occupied or where there are no activities whatsoever, it tends to have the effect of increasing the activities. That is troublesome to us as Aboriginal people. We have witnessed that happening.
As an Aboriginal person, whether you are on the land or whether you are at sea, you know an area very well because it provides your livelihood. Sometimes a person out there would not see anyone for days. Increased activity in areas that were isolated disturbs not only the livelihood of the Aboriginal people but it also disturbs the animal or marine life in that geographical area. That is of great concern to me. Do you share that concern?
Do you simply support this bill but want to have your Aboriginal claims recognized and attempt to use the legislation, when it comes into effect, to advance your case?
Mr. Jones: I can talk about some workshops that the B.C. Aboriginal Fisheries Commission had with First Nations throughout the province. These were held perhaps two and a half years ago. We were talking generally about marine protected areas. Although there is some support for marine protected areas, the majority of First Nations are quite concerned about the potential impacts of them. They look at what happened with terrestrial parks and they see that as an example of how their Aboriginal rights have been infringed. They ask whether they will be able to go and pick seaweed in a marine conservation area.
Our approach is that discussing marine conservation areas there must be a dialogue with the First Nations who are affected, and an attempt to reach agreement before moving ahead on any such areas. This is not different from what Parks Canada has told us. They have told us that is their approach, they would not be moving ahead with a marine conservation area unless it has the support of First Nations, but that is not what the bill states. That is our concern.
As well, we have an agreed process to move ahead with interim agreements, and in trying to reach agreements on these kinds of initiatives. If the federal government has a policy of working with First Nations to reach these interim agreements, why is that not specified in the proposed legislation?
The Chairman: I will raise a point about consultation. Clause 10 of Bill C-10 states:
The Minister shall provide opportunities for consultation with relevant federal and provincial ministers and agencies and affected coastal communities, aboriginal organizations and bodies established under land claims agreements...
Did you read that portion or did you, like me, miss it the first time? It seems to address a high percentage of your questions.
Mr. Jones: I agree that that section does provide for consultation. The difference is that a different level of consultation is required with First Nations from what is required with other interests.
The Chairman: You are right up there with federal and provincial ministers. That is more than what most people get.
Mr. Jones: I do not think the bill necessarily states that that is a priority. It lists the different governments or organizations that must be consulted.
Senator Cochrane: Can you tell us what your consultation process entailed, and to what extent were you involved? Were you or were you not satisfied with the process?
Mr. Jones: Are you talking about consultation on Bill C-10?
Senator Cochrane: Yes, and marine conservation areas as that pertains to Bill C-10.
Mr. Jones: In terms of the organizations that have made presentations, the meetings that we had with Parks Canada last summer were the only direct involvement, which I am aware of, that we had in discussions about Bill C-10. We had asked Parks Canada to come to our communities and hold meetings on Bill C-10, but that did not take place. I personally did attend a meeting in Skidegate where Parks Canada made a presentation about four years ago. It was not about this proposed legislation. At that time it concerned a document that described the various elements.
Senator Cochrane: I realize that you do not represent all of the First Nations communities; is that correct?
Mr. Jones: The First Nations Summit is probably the most representative organization in that they represent the First Nations in the treaty process and they have elected representatives who represent that group.
Senator Cochrane: Were they included in the consultation process on Bill C-10 with Parks Canada?
Mr. Jones: The First Nations Summit and the B.C. Aboriginal Fisheries Commission are not First Nations, they are organizations representing First Nations, and we have said consultation needs to take place with the First Nations who may be affected. In that respect, I do not think that consultation has taken place with the individual First Nations that have the Aboriginal rights and that would be affected by this legislation.
Senator Cochrane: How many First Nations does the B.C. Aboriginal Fisheries Commission represent?
Mr. Jones: The B.C. Aboriginal Fisheries Commission is a forum for the majority of First Nations, but they do not represent First Nations. When there is a consensus on matters, then the B.C. Aboriginal Fisheries Commission can move ahead. For instance, on marine-protected areas, there is a clear position taken by the B.C. Aboriginal Fisheries Commission representing First Nations.
The Chairman: This is a point of information, Senator Cochrane. I believe there are about 64 Aboriginal groups on the West Coast, and I think the commission represents about 40 of those.
Senator Cochrane: On page 4 of your brief you suggest that clause 4(1) be amended. Are you awaiting a reaction from Parks Canada? You have not had many discussions with Parks Canada, have you? Do you feel there is not an open dialogue?
Mr. Jones: We were involved with the Assembly of First Nations in the initial meetings. There was a meeting in February between the Assembly of First Nations and Parks Canada to discuss where to go from here, but the B.C. Aboriginal Fisheries Commission and the First Nations Summit were not invited to those discussions. The dialogue on Bill C-10 ended in October.
We submitted a similar brief to the House of Commons committee, but for whatever reasons, even though we understood it was going to go before them during their clause-by-clause review, it did not. We are bringing it here because we have concerns with some of the provisions, and we think there are common interests that still could be addressed through the proposed legislation if the bill were amended. We think they would be positive changes.
Senator Christensen: I want to follow up on Senator Cochrane's question. You told us that the five points you have raised were presented to the House committee; is that correct? You did not appear personally.
Mr. Jones: We worked, as I mentioned, with the Assembly of First Nations. The Assembly of First Nations had intended to make a presentation that would have included our points, but they were not invited to make a presentation. We did speak to the clerk and we were invited to send in a written brief, which we did, but for whatever reason it did not get to the committee during the clause-by-clause review. That is why we are presenting this brief to you. It was never considered.
Senator Christensen: Is it possible to determine whether the written brief was part of the proceedings of the House committee?
The Chairman: If I may make a comment, I was reading clause 10 with respect to consultation with Aboriginal organizations. The original bill did not contain the words ``bodies established under land claims agreements. `` That part was amended from the original in the House of Commons. Irrespective of whether you were invited or not, the part I read to you earlier was included. Perhaps they did not invite you because they already had or were going to include what you wanted. You may have had more effect than you thought.
Mr. Jones: We did acknowledge in our brief that there were some changes to the legislation as a result of our discussions with Parks Canada.
The Chairman: Obviously they listened to you.
Senator Christensen: Can you tell us what the relationship is between the First Nations affected by this bill and the communities along the coast also affected by it? Are you in agreement on the changes that should be made to this bill?
Mr. Jones: I am not quite sure of your question.
Senator Christensen: I am interested in the relationship between the First Nations communities and other communities along the coast as it applies to this bill. Would you have any knowledge of that? Do they share common concerns about this bill, and if they do not, how do they differ?
Mr. Jones: I am not representing other communities. I am sure there are differences and there may be areas of agreement.
Senator Christensen: Have you been involved in meetings with other communities?
Mr. Jones: I was involved only in the meeting in Skidegate. Only about 10 people attended that presentation. My understanding is that the intent of the legislation is that, once a marine conservation area is proposed, consultation will take place around that proposal and a management plan will be developed that will try to bring together the various interests.
Senator Christensen: That is on the Haida Gwai'i, is it not?
Mr. Jones: Yes.
Senator Christensen: Are they in favour of marine parks?
Mr. Jones: At that particular presentation, there were no specific details, whereas now that there is a bill to review, it is much easier see what issues there may be about the way this is set up.
Legislation should be an expression of policies. We know that Parks Canada has policies regarding the involvement of Aboriginal peoples. If they tell us in our meetings that they will not move ahead with marine conservation without getting that support or agreement, why can that not be included in legislation? There are agreements in place on territorial parks, so it is conceivable that there could be on marine conservation areas. Is there a reason that cannot be provided for in the legislation as well?
Senator Christensen: Is your organization involved in the treaty process in British Columbia, or are you dealing with the fisheries on the periphery and it is actually the individual First Nations that are involved in the treaty negotiations?
Mr. Jones: I am not directly involved in the treaty process, but the First Nations Summit is the representative organization.
Senator Christensen: Is the BCAFC directly involved?
Mr. Jones: No.
The Chairman: I have been checking the records and I see that three different Aboriginal groups appeared before the House of Commons. They heard from Mr. Ovide Mercredi, a Haida chief and a group from Nunavut. Although we often criticize the other place, thinking that we do a superior job, we cannot criticize them for not consulting Aboriginal groups.
Senator Sibbeston: The submission of Mr. Jones reminded me of when our Aboriginal Peoples Subcommittee on parks met in Iqaluit when concerns were expressed about the role of Inuit in the management of parks. Parks are not just land and water, they include the Aboriginal peoples who have been there for hundreds of years. I understand what you are saying.
What is the role of Aboriginal people regarding the sea? I do not live close to the coast. How would you describe the relationship with the ocean of Aboriginal people living on the coast?
Mr. Jones: That is a very important area for us. I am Haida. In our territory all our villages face the sea and we originally travelled by canoe on the sea. My parents and grandparents made their living by fishing. My grandfather would go fishing for two or three months to earn $1,000 to buy what they needed for the winter. The rest of their food came from what they could grow in the summer.
That has changed in our area, but we still have those connections. Our people go out on the water, and fish is still an important part of our diet.
Senator Sibbeston: In paragraph F of your brief you say that you want to amend clause 4(1), adding: ``and for the preservation and enhancement of the way of life of Aboriginal peoples.''
Can that relationship of the Aboriginal people with the sea complement a marine conservation area? People want to see the ocean and marine life. Will fishing by your people in any way impede or adversely affect the marine conservation area that would be set up?
Mr. Jones: The provision in the legislation for zoning within a marine conservation area may restrict activities in some areas but allow them in others. We believe that it would require the support of Aboriginal peoples for marine conservation areas to be successful. If there is no interest by our peoples in these conservation areas, they will not support them. There is potential to provide that interest through a management plan.
There is a good example of that which was cited in the presentation to the Commons committee by Guujaaw, the president of the Council of the Haida Nation. There is an agreement in place for the management of a terrestrial area. Parks Canada, the Council of the Haida Nation and the communities have worked on a management plan for that terrestrial area. It has a cap on the number of visitors that might come to that area, which would address the potential impacts of tourism on the area, the resources and the Haida peoples. There are opportunities within marine conservation areas, but through policy and legislation you need to provide opportunities to build those common interests.
Senator Sibbeston: The marine conservation areas that the federal government wishes to establish are not necessarily areas that they intend to be left alone, where there will be no taking of sea life by the coastal people. That would be too restrictive. Surely people in the affected areas would be able to take some sea life. Do you believe that Aboriginal coastal life can be complementary to marine conservation areas, recognizing that people do take fish from the sea?
Mr. Jones: Part of our concern is the potential for infringement on Aboriginal rights through these marine conservation areas. We want the amendment to clause 4 so that Aboriginal peoples will be consulted as part of the process of establishing these areas. We have asked that our Aboriginal rights be recognized separately from those of others. The federal government cannot establish marine conservation areas that might infringe on our Aboriginal rights without consulting. That process must happen, so why not acknowledge that in the legislation?
Senator Adams: Mr. Jones, I come from the Arctic. Our committee has already heard from witnesses from the nature federation who told us that they have alerted the government to the need to set up conservation areas.
Can you tell us whether any thought has been given to creating a protected area off the coast of B.C. that would sustain the marine sea otters? Where you live, it is common to see marine otters, killer whales and other mammals?
Mr. Jones: We do not have sea otters in our area any more. They were extinct in our area in the early 1900s. There have been sightings of one or two mammals in the past year, so we believe that certain mammals are returning to the area. The area I am from is relatively untouched. There is some commercial fishing in the area and some tourism. We have seen that the establishment of terrestrial national parks does attract people. We have seen that that does happen. It is a reality that, if you tell people that an area is worth protecting and preserving, they will go there. That is where the potential impacts may arise on sea mammals, sea birds and others.
In Banff National Park there is now a concern that there are too many people in the area. The positive side is that, through working together and through management plans, we can ensure that we can protect these places in the long term. There are some common interests between First Nations and Canada, but we need to provide opportunities to work together to protect these areas.
Senator Adams: I can tell you that, in the North, there has been an impact on beluga whales. Belugas are in danger of becoming extinct. I do not believe Bill C-10 addresses the future of mammals that are in danger of becoming extinct.
Various representatives of wildlife societies, who testified before our Fisheries Committee, have told us that park areas must be protected. The chairman of our committee asked whether Bill C-10 would in any way protect the future of endangered mammals and marine life in park areas.
You mentioned tourists. Parks Canada may start to regulate the number of tourists who will be allowed to go out and watch killer whales or mammals in the sea. Licensed tour operators now charge people to take them out to whale watch in certain areas that should be protected.
Over 10 years ago, people near the St. Lawrence River in Quebec could not charge people to watch whales. However, when the area was made into a park and tours had to be licensed. I believe that is a regulation in the park. Am I correct in saying that, if you want to run a chartered tourist service to take people whale watching, you must have a licence?
Mr. Jones: The only instance I am familiar with is in the national park reserve, where there is a mechanism to establish licensing. That has happened where there is a limited number of operators and a limit on the number of people who may take tours. However, in the rest of the province that kind of provision does not exist. There are no licences, but limits are resulting from the management plans that are being put in place for national park reserves.
Senator Adams: Licences are required for tourist operations which run salmon fishing outings. Is a licence required to take people out to sea to watch whales?
Mr. Jones: For salmon or halibut fishing, or the commercial fishery, there are a limited number of licences.
Senator Adams: I am talking about tourism fishing, not commercial fishing. Do similar restrictions apply?
Mr. Jones: There is really no limit on tourism fishing. In my area, since 1985, we have seen a tremendous increase in the number of tourists who go fishing for spring salmon. The number has gone from 500 people to 15,000 people. These are relatively concentrated areas and areas where, historically, our people would fish. There is no way to restrict the number, because the province says they do not have a mandate to licence the lodges. They can only licence the anglers. The federal government has expressed the same opinion.
There are no limits or controls. However, perhaps that could be dealt with in management plans of marine conservation areas.
The Chairman: Is there the possibility of conflict between the interests of fishermen and the creation of a park area? I am thinking of ground fishing for lobsters or clams or trawling. One group might suggest an ideal location for a park, but, using the East Coast example, that may be where there is the best lobster fishing in the world. Do fishermen speak with one voice, or are they like farmers where, when you get five of them together, there are five different opinions?
Mr. Jones: A fishermen learns to fish in an area. Having fished myself, I know that I would tend to back to the same area. You learn where the fish are, when to fish and what gear to use. There are concerns from individual fishermen and fishing groups of how this might affect them.
The Chairman: I was thinking more of the different types of fishing. Is there a type fishing that you do, or someone does, that ruins someone else's type of fishing? Perhaps I am not making myself clear.
Mr. Jones: I am trying to think of an example.
The Chairman: Any type of fishing that requires dragging the sea floor might affect another type of fishing.
Mr. Jones: There is certainly that potential, particularly with trawling because it is not selective. It takes everything, although they are not allowed to keep halibut and some other types of fish. They have to release those.
The Chairman: You say that you represent the fishing community. I am trying to determine whether, if we had a group of 30 or 40 fishermen present, they would quarrel about where the park should be.
Mr. Jones: I do not represent commercial fishing, but some of our people are involved in that. Fishing is an important part of some of our people's livelihood.
Bill C-10 provides for the development of management plans and consultation with these groups. I believe that would address those issues. Bringing the management plan forward is a way of ensuring that those concerned are accommodated.
The Chairman: You represent the group of Aboriginal people who fish to make a living or to survive. Fishing is part of their culture and their life. You do not represent the odd deep-sea trawling outfit that works in the area?
Mr. Jones: One of the potential impacts is the loss of economic opportunity, such as commercial fishing. Individuals and First Nations share those concerns and interests.
The Chairman: Looking at it as a cowboy from the outside, I want to know if there are Japanese trawlers raising hell on the ocean floor.
Mr. Jones: Parks Canada will not necessarily deal with fishing restrictions. That would be the responsibility of Fisheries and Oceans. Their management plans would still be in effect, but there may be changes through dialogue and agreements to change them in the marine conservation areas. That is my understanding.
Senator Banks: Mr. Jones, you said earlier in your presentation that marine protected areas were broader than marine conservation areas. Would you please explain what you mean by that remark? My impression was that the reverse was true. Were you talking about the size of them or purview within which they operate?
Mr. Jones: There is also a provision under the Oceans Act to establish marine protected areas.
Senator Banks: They are smaller, though, generally, than what we are now contemplating as marine conservation areas.
Mr. Jones: They may have more specific purposes. They could have a similar purpose, but they may not be permanent. I think it is envisioned that marine conservation areas would be more permanent, whereas marine conservation areas could, potentially, change over time. The Province of B.C. has areas that they would like to see designated as protected areas in association with some B.C. parks on the coast.
Senator Banks: I know that you know, because you have referred to it, that marine conservation areas have various levels of protection. I want to be very careful that we do not equate marine conservation areas with parks, because they are not the same thing. In national parks, pretty well every activity is precluded. That is not true in marine conservation areas. They are supposed to be the model of sustainable development.
I want to know whether you take comfort, as I do, from a number of the proposals in the bill. This bill establishes a framework. This bill does not create any marine conservation areas. It sets out the means by which they will be created, and that includes mandatory consultation, as the chairman has pointed out, with all interested parties.
You would agree, I am sure, that the native coastal communities to which you referred are just that: coastal communities. They face the sea. The sea is how you travel. They will, perforce, under this act, be consulted. I take comfort from the fact that, in the establishment of these kinds of areas, not only does Parks Canada purport that, when the coastal communities are not pretty avid supporters of marine conservation areas, they will not be established. That has already been established by action. In a few places where they have been proposed and it was found there was not widespread support among the affected people and communities, the plans have been tossed.
I also find comfort in the preamble to this bill. Preambles are important because they set out the landscape by which a statute will be applied. There is reference to the traditional ecological knowledge of the Aboriginal peoples. The bill will also strengthen the mandatory and meaningful consultation requirements for proposed sites, which is not merely purported but has been demonstrated because they are not proceeding in areas where there is not widespread support. There has also been clarification in the bill as to what happens if a court determines that the federal government does not have clear title to the land. The bill specifies exactly what will happen in those circumstances.
With respect to your suggestion that there could be co-management, the bill now specifically provides that First Nations enforcement officers can be employed in marine conservation areas.
My impression, to which I would like you to respond, is that in the main, your concerns about whether the bill, in setting out the ways in which marine conservation areas will be established, sufficiently takes into account the needs and the potential contribution of Aboriginal peoples. I believe that the bill in its present form does that to an extent to which I am satisfied.
I would like you to respond to that, but first I want to tell you that I would advocate against your recommendation that Parks Canada ought to be able to co-manage a marine conservation area or a park with anyone, including a provincial, municipal or Aboriginal government. I personally would recommend against that because I think that parks are parks are parks.
The Chairman: You are starting to sounding like a witness now.
Senator Banks: I would like you to respond, Mr. Jones, to my comfort level in respect of the involvement of Aboriginal people, particularly in respect of those things that I have just mentioned.
Mr. Jones: You mentioned a number of points, and I would like first to acknowledge that you are right. Some of our original concerns have been addressed through changes in the legislation and the acknowledgement of traditional ecological knowledge. Aboriginal communities are a subset of coastal communities. As to consultation, it does say that there will be consultation with Aboriginal governments, but it includes other groups too.
We need to remember that there is a way of discriminating against peoples through equality. Aboriginal peoples do have special rights recognized under the Canadian Constitution, and by treating Aboriginal peoples the same as every one else, basically you are discriminating against those Aboriginal rights by implying that there is that equality.
We acknowledge that there have been some positive changes, but these are issues that we believe have not been addressed through the existing changes. We are asking for some further acknowledgement of the essential role of First Nations in establishment and planning and eventual management of those marine conservation areas.
If Canada believed that they could just go into an area and establish a conservation area, why would they come forward with this provision to establish marine conservation areas on reserves? There is this acknowledgement that we need to work together on this: ``We need the support of Aboriginal peoples to move ahead on these kind of initiatives, because we recognize those waters, the fish and the marine mammals are an important part of the lifestyle of the people who have lived in that area and still live in that area, and we need to accommodate them in terms of broader Canadian interests.''
I personally do believe that co-management is the way to do that, but there are other ways. Negotiating an agreement does not necessarily mean co-management, although, if we talked to First Nations, that is definitely what they want. It addresses interests in a way that lays out clearly what you are going to do together. It may also lay out the areas of disagreement.
Senator Banks: I would like you to respond to one final area, Mr. Jones. A marine conservation area reserve is exactly the same as a marine conservation area except that it acknowledges that it must be a reserve because there is a potential land claim. That is the only difference between an MCA and an MCA reserve. Its establishment is subject to exactly the same process of consultation.
I suppose I am asking you for a response to a response, because you said the bill makes it appear that Parks Canada can simply come in and establish a marine conservation area reserve. I think that is not true. I believe that the process by which a marine conservation area reserve will be established, and the consultation that obtains to it, is exactly the same as the means by which a marine conservation area will be established and that it cannot be and will not be arbitrary. Would you respond to that, please?
Mr. Jones: The difference is that a marine conservation area is something that is very difficult to change after the boundaries have been set and the plans developed. A marine conservation area reserve contemplates that there will be changes. Once Aboriginal rights are resolved in the area, the boundaries could change. It could become a marine conservation area. That is acknowledged because there is uncertainty about whether Canada can establish such an area. I think that is why it is provided for and it is recognized that it is better to do this through a process of negotiation rather than unilateral action.
The policies and the legislation are recognizing that this is the best approach, but we feel that, if that is the policy and Parks Canada tells us that they will not establish these areas without going in and having that support, then why is it not being reflected in the proposed legislation?
Senator Banks: I believe that it is.
The Chairman: I have a point of information to the committee as a whole. The committee in the other place revised the preamble in several ways, but three changes should interest you. One is the considered traditional ecological knowledge. There is no one more traditional than the First Nations. The second was that the reference to consult with Aboriginal governments was added to complement the reference to Aboriginal organizations. There has been quite a bit done about this, as Senator Banks says.
My question is different from the others. As you know, many communities are interested in offshore oil or mining development, and seeing that jobs will accrue to Aboriginal people and Aboriginal fishermen, and seeing that there is salmon fishing around the world, on the Gulf Coast, the North Sea and so forth. The two seem to co-exist quite well. What is the view of your Aboriginal brothers and sisters about ensuring that the parks do not cut them out of jobs in the future in terms of offshore development? Have you considered that at all?
Mr. Jones: I know it is an important issue in our area, given that coastal oil reserves have been identified. First Nations particularly have concerns because oil development can have environmental impacts and that can affect our traditional areas, as well as the fish, the seabirds or the marine mammals that are important to us. However, with marine conservation areas, one of the provisions is that no oil exploration or drilling will occur. Therefore, it may not be an issue directly related to the marine conservation area but drilling or oil development outside can affect the area. We have had oil spills from tanker traffic on the coast that affected national parks, so I think it is a concern.
From looking at oil development in other areas, such as the East Coast, the actual jobs for local people, or employment or training opportunities for Aboriginal people, have been few. People are brought in to do this work rather than training people and providing long-term jobs. Therefore, the benefits may be quite slight for the local peoples.
The Chairman: Of course, you know that some treaties have not been settled. Unless I am wrong in my guess, I think that there are some pretty good negotiators among the Aboriginal people, and perhaps you may be the one who will ensure that the First Nations will get a bit of that oil revenue. You argue that they are your traditional lands. I believe the Haida are already arguing that, if there is any oil development, they should have a piece of the royalty because they are the original landowners. As you know, some Aboriginal groups on the Prairies receive income from oil development.
How much discussion or coordination has gone on between your fishing people on the coastline and people on the coastline who see oil and mining as a new source of income? I am referring to not only the supply end but also the royalties that would accrue to them. Have you had any such discussion?
Mr. Jones: I do not know of any commercial fishing groups or First Nations who are supporting oil development or the lifting of the moratorium at the present time. I think there may be that interest, but it is certainly not one that has been publicly stated, as far as I am aware.
The Chairman: Thank you for coming to our committee.
Mr. Jones: I would thank the members of the committee for the opportunity to bring our concerns here. I hope that you will give them your consideration and debate them, and that you find some way of addressing our concerns.
The Chairman: We will now continue in camera.
The committee continued in camera.