Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 9 - Evidence - June 12, 2007
OTTAWA, Tuesday, June 12, 2007
The Standing Senate Committee on Fisheries and Oceans met this day at 7:04 p.m. to examine and report upon issues relating to the federal government's new and evolving policy framework for managing Canada's fisheries and oceans.
Senator Bill Rompkey (Chairman) in the chair.
[English]
The Chairman: I call the meeting to order. My name is Bill Rompkey, a senator representing Labrador, and this is the Standing Senate Committee on Fisheries and Oceans. Around the table we have Senator Robichaud from New Brunswick, Senator Adams from Nunavut, Senator Comeau from Nova Scotia and Senator Meighen from Ontario.
Our reference is the framework for managing Canada's fisheries, but recently we have been examining the fishery in Nunavut. We have heard from Paul Kaludjak, the President of Nunavut Tunngavik Incorporated; from Joe Tigullaraq, the Chairperson and Chief Executive Officer of the Nunavut Wildlife Management Board; and, from the Government of Nunavut, the Honourable David Simailak, Minister of Economic Development, and Wayne Lynch, Director, Fisheries and Sealing.
We are pleased today to have Mr. Bevan from the Department of Fisheries here again so that we can compare notes with information provided by the people from Nunavut and get some response from the government.
David Bevan, Assistant Deputy Minister, Fisheries and Aquaculture Management, Fisheries and Oceans Canada: Good progress has been made in some of the fisheries and waters adjacent to Nunavut. Turbot is a good example where there has been growth in both the quota and the share available for Nunavut.
I know that Nunavut wants to seek the same type of shares that exist in waters adjacent to jurisdictions in the South. They are looking for about 80 per cent of the quotas. We are not there yet, but there is no disagreement between the governments of Canada and Nunavut that that is the direction we would like to head in. It is just a matter of how quickly we can get there.
There has been a different history with the older fisheries in the South. The people who live adjacent to them developed them originally. In Nunavut that is not always the case. The shrimp fisheries were developed originally by southern people attempting to see if shrimp was a feasible operation. They went to the North and they have a history in the fishery there. We have looked at increasing shares in the shrimp fishery and in the turbot fishery and we have seen progress. The northern shrimp adjacent to Nunavut has increased from 8.8 per cent in 1988 to 31.45 per cent in 2004. Turbot has grown from 27.27 per cent in 2000 to 59.6 per cent in 2004. Since 2004 there has not been any change in the quota or shares.
We need to look at a commitment for science. That is a concern and we have been attempting to increase our scientific presence in the area to support not just the domestic fishery but also the turbot. It is looked after by the Northwest Atlantic Fisheries Organization, NAFO. Funding for science is currently $320,000 per year but we are looking at ways to improve that in time.
The minister and the deputy minister, at presentations to the House Of Commons Standing Committee on Fisheries and Oceans, expressed a desire to move ahead with infrastructure. Currently the structure of the fishery in Nunavut is limited by lack of infrastructure. Infrastructure does not exist to support certain types of fisheries and that has led to a reliance on larger vessels and an offshore fishery, which does not support coastal communities. That is another consideration for the future.
There is no disagreement generally about the direction we want to go. There is a desire to get to the end point more quickly than we have been able to with respect to the government's response. We have to work together with the Government of Nunavut to proceed down that path, growing economic development in the coastal communities in Nunavut around the fishery and changing the nature of that fishery if that is desired by the local governments and communities.
The Chairman: I am puzzled by the lack of infrastructure, because this is where the real payoff is. We have gone through this situation in Labrador about Canadianizing deep sea vessels. The real payoff is onshore structures with proper plants and a place for boats to dock. I am puzzled why there is no infrastructure, no wharves, no breakwaters, no plants.
Is that a federal responsibility? Those of us who have been around here for a while know that if you are from the Atlantic, one of the things you concentrate on every year is small craft harbours. You watch that budget closely, and make sure you have your list in there and you work with the local regional department of fisheries to see if you can get what you need. I seem to recall there was no part of that budget allocated to Nunavut.
Is this a federal responsibility? If so, where does the money come from for infrastructure in Nunavut? Have land claims made a difference in the way money that has been allocated?
Mr. Bevan: There is a federal role. There have been discussions regarding whether or not ports would be funded in Nunavut. I do not think a final decision has been made.
I do not have personal expertise relevant to the Small Craft Harbours Program or to ports, so I am a little loath to represent the department on that for fear I might not get the facts right.
The Chairman: Just to be clear though, there is nothing preventing money from the small craft harbours budget being allocated to Nunavut, is there?
Mr. Bevan: I really would feel more comfortable going to the people who are responsible for that program. I am not aware of anything, but I would not want to mislead the committee if I have not got my facts straight.
The Chairman: We need to be clear on that, if you could help us to understand what is going on there.
Senator Adams: I hope you pass on the question to the minister. In the beginning, we were kind of late. The harbours were privatized and Nunavut had a problem with transport. They have nothing now. The government built everything across Canada and after we settled the land claim, we privatized it and now we are fighting to get the money for the harbour.
The Chairman: That is airports, right?
Senator Adams: No, it is both. Transport Canada used to own the budget and everything, including the airport, before NAVCAN.
The Chairman: Is there still a small craft harbours budget?
Senator Adams: No. After privatization, communities were having breakwaters built. We asked Transport Canada if we could give the money to the Coast Guard to look after anything that was damaged by the breakwater, but there was no funding. I know that two years ago the Prime Minister of today promised that they would build a deepwater port in Iqaluit and it never happened. I believe Nunavut tried to get an estimate on how much it would cost to build a harbour for the Baffin region, in an area with about five communities. The Department of Fisheries and Oceans, DFO, has nothing to do with harbours, do they?
Mr. Bevan: We have a Small Craft Harbours Program, and the minister said he personally supports the development of infrastructure in the territory. There have been senior level meetings with the territory and federal officials from DFO and other departments. One solution being explored was the new infrastructure funding recently announced in Budget 2007. However, these solutions are all in the early stages of discussion and I am unable to inform the committee as to whether there has been any progress. I believe there has been a statement of support that infrastructure is required if the fishery is to have the potential for growth as well as change so that a component of it can support coastal communities. That has been recognized. The issue now is how to proceed. Unfortunately, I am not up on small craft harbours issues nor on the recent developments.
Senator Meighen: Am I correct in thinking that infrastructure has no impact on the share of the fishery, that the share of the fishery operates independently from the presence or lack of presence of infrastructure and increased infrastructure would merely, presumably, increase the catch levels?
Mr. Bevan: That is correct. The share is actually not dependent on the infrastructure directly. There has been an indirect impact because the absence of infrastructure in Nunavut made it difficult for the fisheries there to develop. There was the fishery through the ice in Cumberland Sound and fisheries almost independent of the available infrastructure, but the development of things like the offshore shrimp and turbot took place using large vessels. That had an impact on the share because the people who opened up those fisheries were from the South and their endeavours to find out if there was an exploitable resource and to move it from an exploratory fishery into a commercial fishery are recognized as their historical attachment to the fishery. They have a share that perhaps would not have existed in the same way in the South, where the people who lived adjacent to the resource had more access to it and would fish it over a longer, historical period of time; therefore, the shares there are more heavily weighted towards those adjacent to the resource than they are in Nunavut at this time because of that history. That history does have an impact and is, in part, related to the fact that it was impossible for people in Nunavut, in the absence of infrastructure, to start that kind of fishery on their own. Those offshore shrimp and turbot fisheries were developed by the people from the South.
Senator Meighen: In four years, Nunavut's share of the shrimp fishery has more than doubled in spite of the lack of infrastructure.
Mr. Bevan: That is correct. There has been an effort by the government to try to respond to the desire of the people in Nunavut to have a share, to have a fishery. All the fish in 0A turbot, for example, are allocated to Nunavut and the rest are looked at as adjacent to Nunavut. There has to be some response to that adjacency and there is. We do not feel we are in a position to tell the people who made the investment, who took the time to explore and develop the fishery and find a way to catch it economically, that they have to move out, that we are going to take it out and give it to someone else. We are looking at how to grow the fishery in a sustainable way so that allocations can be provided to adjacent interests in Nunavut without disadvantaging those who actually started the fishery in the first place.
[Translation]
Senator Robichaud: I would like to know what you meant when you said ``without disadvantaging those who actually started the fishery in the first place.'' Are you implying that they should retain the majority share of the quota for this fishery forever?
Mr. Bevan: I am not sure, because I do not know exactly how many fisheries operate in the zone adjacent to Nunavut. We need more scientific data in order to establish TACs. It may be possible in future to have more fisheries, and if that happens, then catch levels can be adjusted.
[English]
Senator Robichaud: That is not where I want to go. You have said that some people have a share and it is not because they are nearby but because they went in on an exploratory basis. You also said that it is time for whatever those people got to be reallocated to the fishermen who are close to the region.
Mr. Bevan: No, I said that we would not take fish away from the people who started the fishery and give it to those adjacent. Instead, the growth in fisheries has been disproportionately provided to Nunavut in that area. That is why the shares have changed. The share of shrimp has doubled and the share of turbot has gone up substantially for Nunavut, based on growth.
We did not keep the shares the same; we just said you developed the fishery and you have your quota. We will not reduce your quota at this time because we have growing stocks, but we did give the majority — and all of the turbot in the case of 0A — to Nunavut.
Senator Robichaud: In 0B, they have only 27 per cent.
Mr. Bevan: That is correct.
Senator Robichaud: Also, there are some outside interests. Will those outside interests always have that part — not percentage wise, but the number of tonnes they have now?
Mr. Bevan: I cannot say. As you are aware, under the Fisheries Act that we are working with now — the one from 1868 — absolute discretion rests with the minister. Therefore, under law, there is absolutely no assurance that those quotas will not be reduced at some point in time; nor is there an assurance that in the event the stock were to change those quotas would not go down. However, there has been a policy to keep the stocks stable in the short term and to allow growth to go to Nunavut. If it stops growing, or if it starts to go through a downward cycle, decisions will have to be made by the minister of the day; and I cannot predict what those decisions would be.
The minister might decide at that point to maintain a share for the people who were originally in there, to maintain the current shares and apply them to a shrinking fishery or, indeed, to have the shrinkage take place on the part of the people who were originally there. Those are all options available to a minister faced with those choices.
Senator Robichaud: I know, but I do not think that is correct. We lived through that with the crab fishery in the southern gulf; some inshore fisheries were granted a certain percentage — not to my satisfaction, but at least they got something. However, when the quota is reduced, they are the first to lose.
Mr. Bevan: Not now.
Senator Robichaud: No, now they have a permanent share; but it used to be that when it went down, they were out. I hope we do not use the same way of allocating quota as we did there, because I think it is unfair to the people in Nunavut, in this case.
Mr. Bevan: I understand, but I am unable to provide you with assurance in the future because of the way the current law is structured.
Senator Robichaud: In the present law, is there a guarantee. You say the new law would give discretion to the minister.
Mr. Bevan: It gives discretion to the minister.
Senator Robichaud: To reduce the quota of those who did the exploration?
Mr. Bevan: The new law and the old law both give discretion to the minister for such decisions. In the old law there is no guidance relevant to conservation, process, transparency, et cetera. The discretion rests with the minister with no guidance on how it is to be used.
The new law would make the process much more transparent. The minister would have to be public in his reasoning for changing the allocation. He would have to pre-publish his intention to change allocations and allow for a process to be followed that would be evident to all the stakeholders.
That is not how it works under the current law. Under the current law, the minister can inform the department as to what his decision is and we would implement it. There is no process.
Senator Robichaud: That would be fair for the people of Nunavut.
Mr. Bevan: If that is what the particular minister of the day did. He could also have reasons for deciding last in, first out. As I said, there is no transparent process or guidance in the current law that informs the minister on how that discretion can be used. Indeed, the only limit is natural justice. There is very little recourse to ministerial decisions, as we have seen in a number of challenges in the past.
Senator Adams: I would like to say that the policy should be changed. The fishery in Nunavut is not working right now. I have been saying that for the last four or five years. I just talked to some people who are having a meeting up there today and tomorrow. I talked to some private guys and they said nothing has changed.
The only thing I would like to see in the future for those 8,500 metric tonnes of turbot is that they should be allocated to five communities up there in Nunavut. The way the system is now between Royal Greenland and the Baffin Fisheries Coalition, it is not working. BFC is not giving any allocation to the Inuit community.
In the future, the minister should be able to allocate quotas to the communities — at least five of them: Pond Inlet, Clyde River, Broughton Island, Iqaluit and maybe Cape Dorset or Lake Harbour; they should be allocated up to the 8,500 metric tonnes.
The royalties from that fishery are supposed to be part of the land claim. Right now, those people have a corporation that has Royal Greenland as a partner. Every time it buys out some of the quotas — I think 45 tonnes from Clyde River and 145 tonnes from Pond Inlet — it takes the quotas and keeps the 27 per cent royalties. Right now, for those 8,000 metric tonnes, the royalties are over $3 million a year, and it is not going to the community. One community went into partnership with people who are Canadian and now it has over 1,000 metric tonnes and last year got royalties for $680,000. Those other people do not own the quotas; if you own the quotas and you do not want to go in with a company, you do not get the royalties.
Why are we giving some of the royalties to people who are not even Canadian? That is where I have a difficulty. That is why we cannot get anything going. The royalties are supposed to provide some kind of benefit to the community in the future for the equipment and the boats and such things, and it is not going to the community. There is only 12 miles but it has not been studied and we do not know how much fishing is taking place there. You mentioned something about $320,000 of revenues in the future.
Mr. Bevan: I think that is what is being spent.
Senator Adams: It is spent already. We need to find out how much fish we have up there to be caught and whether we need to reduce or increase the allocation for the 8,500 metric tonnes of turbot.
Mr. Bevan: In the case of turbot, the scientific advice is required to go to the scientific council of NAFO for advice on the total allowable catch there. We need to provide the raw data and scientific analysis to support that process.
The decisions on the allocation of turbot have been made by the minister. With respect to the share that Nunavut receives, we seek advice from the government and the Nunavut Wildlife Management Board. That has led to allocation of the offshore catch to the Baffin Fisheries Coalition. I understand the royalties are for Canadianizing all of the operations. The vessels have to be and are registered in Canada. I believe the rest of the funds are used to further the Canadian ownership and interest in that company. Again, we are stuck with the situation of what comes first in terms of community interests. We still do not have the capacity to fish these stocks if the infrastructure and the vessels are not present other than through the Baffin Fisheries Coalition process.
Senator Adams: That is why I have a problem with the BFC. There are only the two — Nunavut Wildlife Management and BFC — operating the fishery. Others are interested in getting into it but they have no power to say. Every year the minister gives out Nunavut quotas but no percentage goes to Nunavut. Our chairman mentioned that and we made recommendations to the Nunavut Tunngavik Incorporated, to the Nunavut Wildlife Management Board and to Minister David Simailak. The minister and the government should accept that the fishery should be run 100 per cent by the people of Nunavut and not by these organizations. The allocations should go to the community.
Mr. Bevan: That decision rests with the minister. As well, he has to be guided by a land claims process. I believe we have an obligation to consider the Nunavut Wildlife Management Board recommendations.
Senator Adams: The chairman appointed by the Governor-in-Council should recognize that those quotas belong to the Inuit people but that is not being said. Mr. Joe Tigullaraq was appointed by DFO for a five-year term.
Senator Comeau: Mr. Bevan, some years ago we talked to the community and to the government about the objectives of both groups. It seems they favour a smaller scale fishery, which you confirmed in your earlier comments.
Mr. Bevan: I confirmed that the minister is interested in seeing the resources be used by people attached to the fishery and the benefits accrue to them. He has indicated that he would like to see more benefit flowing to the people of Nunavut from these resources than currently is the case. That is his stated objective. However, the infrastructure and other issues are not in place at this time.
Senator Comeau: I was heartened by your comments regarding the recognition that without basic infrastructure, which has been on demand for years, there is no way we can go to the next step, which is to favour a smaller-scale fishery, if that is the desire of the communities. Without infrastructure, the situation favours a large-scale offshore fishery. That is what I detect from your comments.
Mr. Bevan: Clearly, without the capacity, the land and the land process, that is the case. Discussions are needed with the current quota holders and we have to get the processes in place for the allocations. One would have to assume that those parties, the Nunavut Wildlife Management Board and others, would have to wish to move in that direction.
It is clear that catching the product next to Nunavut then having it landed offshore down south is not the best way to have the benefits accrue to the people of Nunavut.
Senator Comeau: I recall that this was very much the method of choice when we met with them some years ago. They preferred to land their catch locally so they could process it locally. Sometimes they looked to the possibility that this could be done with smaller vessels so that people would not have to go away for weeks and then possibly do the landings on another trip to be shipped south.
Some years ago, the Department of Fisheries and Oceans seemed to favour a fishery that tended to concentrate and to consolidate quotas into ever larger corporations. This was viewed as a more efficient model. I can understand how DFO might have favoured this model because it had to deal with fewer people and, therefore, fewer headaches. Are we to assume that DFO is now receptive to a small-scale fishery where the quotas might not be consolidated in fewer hands?
Mr. Bevan: Going back years, the trend has been the establishment of the enterprise allocation process in Atlantic Canada for the offshore component of a quota. At that point, the decision was made that that fishery had to become much more economically efficient in order to survive. As you recall, that policy was born out of the economic turmoil existing around the early 1980s.
Senator Comeau: I am referring to a later period when even the smaller-scale fisheries favoured a kind of consolidation of ownership of the quotas.
Mr. Bevan: Some groups of fishermen have come to the department to ask the minister to switch the policy framework for their fisheries to go either to individual quota, IQ, or to individual transferable quota, ITQ, fisheries. That has given them the capacity to get away from the competitive fishery.
Senator Comeau: Without going into the pros and cons of the ITQs and privatization versus non-privatization, in my view the IQ model for the Nunavut area would not work. Judging from what I have been heard from the people in that area, that is not where they want to go. Would DFO be in favour of looking at a community quota system rather than the model used in the South, which, in my view, has not always been that great?
Mr. Bevan: We would have to receive advice from the processes established under the land claims. That would have to come from them. If there were a viable proposal from them, involving the Nunavut Wildlife Management Board and possibly an evolution of the current system, that would be considered by the department and the minister. I cannot prejudge because there is a procedure in place that has to be followed by the land claims agreement. We cannot say where the catch should be landed because choices have to be made in consultation with the people involved in the process. We are open to many different models in the fisheries.
In the South we have small-scale ITQ fisheries, enterprise allocations, competitive fisheries, and community quotas in southwest Nova Scotia. Those Canadian models exist within the context of current policies. We have pressure on fisheries throughout Canada due to the high dollar, high gas and low prices in the past year. That has driven people to consider how to survive in these challenging times. How do we adapt to changing resource abundance and price? That has led people to consider how to consolidate. The government's commitment to assisting fishermen to adjust through combining enterprises and also preserving the independence of the inshore fleet in Atlantic Canada was noted by the minister's announcement on April 12. We are ensuring the minister's objective of having those who fish, who bear the risks at sea, also be the ones who gain the benefits. They should not be subject to control by people not on the boat.
Senator Comeau: Some years ago, this committee recommended a joint infrastructure development agreement between the North and the Government of Canada. Over the years, infrastructure programs in the North had been neglected. Senator Adams mentioned a devolution of responsibility for the wharves by the department. Transport Canada and the Department of Fisheries and Oceans are also doing it. The communities are faced with the worst of all possible worlds. In the South where all the wharves were being developed, they were not part of the benefits, and now that the department and the government are moving away from infrastructure, the communities have even less hope. Is there any chance for a development agreement so that the North can have some optimism? They were short-changed in the past and now we could look after them.
Mr. Bevan: There have been discussions at the senior level about how to move ahead on that and how to fund it. There has been talk about using the infrastructure funding if possible and finding a way to make that happen. It is continuing to be an area of discussion to try to find a solution.
Senator Comeau: We are zeroing in on this one.
Mr. Bevan: It is an important issue because it does limit the options even if the current quota holders maintain the current structure of their fishing operations. I understand that they are looking at options for diversification of their fishing gear. If they hold their catch in the future they cannot even land their product for transshipment out of Nunavut because the infrastructure is not there. It puts us in a position where the fish either go to Greenland, or south or somewhere else where the infrastructure exists. The fishery is not benefiting the people of Nunavut.
Senator Comeau: You are now spending roughly $320,000 a year on science in that region. Is there any hope to fund research on species other than shrimp and turbot in the North? This could be clams or other species that have a potential for development.
Mr. Bevan: I will let Dr. Wendy Watson-Wright answer that. There will soon be a need to have a better understanding of ecosystems. We have committed through international treaties and regional fish management organizations to move towards ecosystem-based management and a precautionary approach. We cannot do that without knowledge. We have seen proposals from offshore shrimp and groundfish operators in areas close to Nunavut to create large areas where they will voluntarily not fish. They have stopped fishing until there is more information. They have a coral conservation protocol for their fishing operations. We are entering discussions with NAFO and other parts of the Canadian industry to move in that regard. We must know what is on the bottom and what the impacts on it are of fishing. We must know how the ecosystem impacts the fishery and vice versa. Those things will drive us in that direction. We have seen activity in other northern areas. Greenland has identified additional resources that they are exploring. If they are on one side of the Davis Strait they are likely on the other. We should further that knowledge.
We have had some shocks in terms of the response to the Laroque decision, which has forced us to reconsider some of our activities. Once we have put that behind us we will have to look at this. We did get extra money in the recent budget for considering ecosystem approaches. I cannot identify where will it be spent nor can I provide a dollar figure. We have to go in that direction but I cannot tell you how far.
The Chairman: There are precedents pertaining to infrastructure provisions. We have had such arrangements with regions and provinces for years. In the 1980s there was a program for net bags and hoists on the wharves. The money came from the federal fisheries budget. This was a separate agreement with a province and the same thing may have happened in New Brunswick and Nova Scotia. It certainly happened in my province. Even though we no longer have the Department of Regional Economic Expansion, we have the Government of Nunavut. There is nothing to prevent the Government of Canada from having a deal with Nunavut. I am puzzled as to why it takes so long to get these deals. We have had them in the past. It is not unprecedented.
Senator Robichaud: We are still in the Aboriginal Fisheries Strategy. A lot of money has gone to buy back and transfer commercial licences and train personnel. We even funded facilities in Richibucto — boats, wharves and things like that. It would not be new.
The Chairman: It is not new.
Mr. Bevan: The difficulty is getting the authorities and the money. The Aboriginal Fisheries Strategy is a bridged treaty, so when you end up with the land claim treaty it puts that off as an operation. I agree that there have been precedents.
Infrastructure in the South is built upon existing infrastructure. There is a historical presence. It is much cheaper to build there than it is in the North. The scale of expenditures required in the North is an issue that requires a different kind of programming and we have not been able to land on that at this point. A number of people, including the minister, have noted the need but we have not yet responded to that need. It has to be inserted into the set of government spending priorities.
The Chairman: It is more expensive, although there are only nine or 10 miles across the strait between Nunavut and Labrador. We know it is more expensive to build in the North. That is just a fact of life.
Senator Watt: Some time ago David Simailak, the Finance Minister for the Government of Nunavut, appeared before us and Senator Adams and I were the only two senators here. He laid out what Nunavut Tunngavik Incorporated is doing in terms of expenditures in relation to the development of fisheries. He made it clear to us that there was no participation of any federal government department in the development of the fishery. That was the case not only in the field of infrastructure, but also in the field of scientific research. That to me was clear. I also had a good idea of why the federal government was not directly participating in the infrastructure requirement while at the same time dealing with the scientific aspects of it and trying to have the area adjacent to maximize the benefit into the community.
I remember asking whether it had anything to do with the fact that you had taken the government to court for breach of contract in relation to their land claims and he pretty well answered me by saying that this was a factor, but he did not categorically say that that was the only reason why the table was there but the table had not been fulfilled by the government side. This was what he was highlighting.
I do not know, Mr. Chairman, if there is anything directly relating to the claim from Nunavut Tunngavik Incorporated for $1.5 billion for breach of contract on this whole issue. I do not know whether this matter will be rectified. I have seen the defence argument laid out, which says basically that they had no right to take the Government of Canada to court on the basis of the fact that they are representing their clients. I have been trying to make sense out of that and trying to come to grips with how they will get out of this mess.
I guess the defence is probably looking at it from the standpoint that when they entered the land claims negotiations there was no power of attorney. When you are dealing with a collective issue, you do not become a collective overnight; you become a collective from the individual people. Unless you have a clear power of attorney from the individuals — and I think this is correct to say — you cannot represent the people. When they entered negotiations there was no power of attorney.
The Chairman: Negotiations with whom?
Senator Watt: With their settlement. What happened here is that the federal government got what they wanted. They got the Inuit to surrender their rights, because the Government of Nunavut and Nunavut Tunngavik Incorporated expected the federal government to deal with all those infrastructure requirements and fully materialize the fishing activities in that area. However, when it came to delivering the goods, the Government of Canada did not follow through.
The Chairman: Are you suggesting that the presence of the court case is impeding any progress?
Senator Watt: It probably has something to do with it and I am not sure whether Mr. Bevan has any involvement in it. I do not think he does.
Mr. Bevan: No, and I cannot comment on it.
The Chairman: That is very useful.
Senator Watt: Somehow, they will have to break the ice. The two parties have to get together. Senator Comeau said that this is not a new issue of a need for scientific money and infrastructure money. Where will the money come form?
I remember a few years back making a suggestion: Why is not a key part of our recommendations to have Nunavut Tunngavik Incorporated put a certain amount of money into it and use that to get additional funds from the government? I think we even made those recommendations at some point.
The Chairman: Some private and government partnership.
Senator Watt: I thought this was useful information. We could be spending this and not going anywhere.
I would like to go a bit further because I think I understood what Senator Adams was driving at and I think it is on the same matter. If Nunavut is to get the maximum benefit out of this — Senator Adams keeps talking about this royalty business and I can understand the royalties. If you are fishing in the high sea, the royalties stay with that ship; they do not belong to the mainland. That is the way that the fishing normally took place in the old days when I was involved in the actual fishing.
Senator Adams is saying is that here is additional money that is being had by the owners of those ships. That money could be beneficial for the development of the community. Here is a dollar that is going out and should be coming in. This is the point that Senator Adams was making.
The Chairman: We heard testimony, as I recall, that the money from the royalties was being put in a bank account to accumulate.
Senator Watt: That is the other subject matter that Senator Adams has been wrestling with.
The Chairman: That is very helpful, Senator Watt.
Senator Watt: I would like to make another point on a completely different subject matter later on.
[Translation]
Senator Robichaud: Mr. Bevan, you noted in the written portion of your presentation that a land claims agreement could have a direct impact on the department's decisions regarding offshore quota allocations.
Mr. Bevan: This is correct: pursuant to the land claim agreement, a process must be followed when decisions respecting quota allocations are made. The minister does not have sole decision-making authority. The viewpoint of the Nunavut Wildlife Management Board must also be taken into account. There is a process that must be followed. It is different from the way things are done in the south or in other locations, or under the Fisheries Act. The provisions of the Fisheries Act can be applied, but the terms of the agreement must also be honoured. The minister cannot decide to act unilaterally.
Senator Robichaud: The faster an agreement is negotiated, the faster the residents of Nunavut will be in a position to influence the minister on the quota issue. Am I correct?
Mr. Bevan: I would agree. They are working on an agreement and they are trying to find a way to sway the minister's decisions. That is where matters stand at the present time.
Senator Robichaud: They could even negotiate an agreement that is similar to the one reached in the case of the aboriginal fisheries. Correct?
Mr. Bevan: If there is an agreement respecting aboriginal fisheries, then the arrangements would be similar as far as sharing the quota allocation is concerned. They decide which members of the communities are allowed to fish and the minister is responsible for allocating TACs between aboriginal communities. Based on the agreements with the communities, the latter decide who can fish and how the TAC is shared.
Senator Robichaud: It comes down to knowing who is authorized to speak for the communities.
Mr. Bevan: In Nunavut's case, the process is the empowering factor. I believe decisions are made by the Nunavut Wildlife Management Board.
Senator Robichaud: Some time ago, we heard that the Nunavut Wildlife Management Board had approved quotas for the Baffin Fisheries Coalition and that no one was happy with this arrangement. Judging from what Senator Adams said, nothing has changed. I realize that it is not up to you to make decisions for the region and that this is no simple matter.
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Senator Adams: The new act for fisheries is Bill C-45, and I studied it a little bit. There is nothing in there talking about the Aboriginal fishery. There is only one clause that mentions the water board. That is all they say. They just talk about the water board dumping garbage or something in the sea, in Nunavut; there is nothing mentioned about the fishery. Did you say that 1825 was the date of the first Fisheries Act?
Mr. Bevan: 1868.
Senator Adams: Okay, now we have a fishery up there and the new proposed act does not even mention Nunavut. Why is there nothing in there about Nunavut and the fisheries there?
Mr. Bevan: It does mention that the minister must respect the Aboriginal treaty rights, so that would cover Nunavut as well because of the treaty. That is in the act and the preamble as well, if I recall correctly off the top of my head. It does set that as a condition under which the minister must act. There are statements of that nature in the act.
The other thing in the act is the ability to enter into agreements. That does not specify with what type of community, but it would cover off both Aboriginal communities as well as communities of licence holders, et cetera. I understand it does not mention it by name because we do have an expectation — or a hope, at least — that more treaties and land claims will be settled. Those are noted in the act as being something the minister must deal with.
When we enter into an agreement of that nature, if there is a conflict between the Fisheries Act and that agreement, the agreement will take precedence. As we enter into agreements with Aboriginal groups or with other countries, those could set conditions for managing the fishery in those areas that would not necessarily be consistent with the act, but would have to be respected notwithstanding.
Senator Adams: We have no chance because we have no treaties. We have a fishery up there and quotas, which should be mentioned in Bill C-45, because we have no treaties — we are just like any other Canadian fishermen. The government might have to amend the bill, if they are concerned about Nunavut, to recognize Nunavut within the bill rather than talking about treaties. That is why I have a difficulty; we do not have any treaties — even the Inuit within Nunavik do not have any treaties.
Mr. Bevan: It is the land claim that is —
Senator Watt: Can I jump in to elaborate on what Senator Adams is talking about here? I have looked at this carefully and I feel I am a bit specialized when it comes to Aboriginal rights' issues and how to wrap things up in terms of who gets a benefit and who does not.
What Senator Adams is pointing out here is that what is considered to be a benefit to the Aboriginal people are those instruments like the wildlife management board, which is an empty box. Then you have another empty box of the land use management board; and then you have another empty box of the review board. The boards of directors for those instruments are filled with three directors from the federal government, three from Nunavut and one picked by the chair, upon the blessing of the minister. Those are not a benefit, but they are considered as a benefit, according to those sets of agreements. What Senator Adams is talking about here as a benefit is the right to harvest, the right to commercially harvest.
In my case, for example, in the new agreement that I have spent quite some time examining, I am ending up with the same kind of an instrument — those boxes filled with a board of directors. It is even worse than what Senator Adams got because they are talking about within their adjacent areas — the offshore marine region. We are the minority in the board of directors. What it does, which is pretty unacceptable to my way of understanding, is they ask us to surrender our constitutional rights in exchange for those empty boxes. They will have the power to make regulations that affect your people, not only — in my area — for commercial and sports purposes, but also for subsistence purposes.
This is what Senator Adams is talking about. They are taking away those things that are important to us, those special rights that we need to have entrenched in the Constitution, in case there are problems from time to time. For example, maybe the animal rights groups are pressuring the wildlife management groups to come into the area, and if you get prosecuted, you have no defence. That is the whole problem.
I am going a bit too far on this, but that is the case. I do not think it is fair. We have to surrender and, in exchange, what do we get? You do not honour the rights that we have; you replace them with those instruments. It does not work that way. Those are the day-to-day needs of the people.
Senator Adams: Maybe you can answer my question: What is the difference between 200 miles and adjacent? Right now, between Greenland and Nunavut, the boundary is just adjacent. What does that mean? We settled a land claim there; and before that time — I think NTI was ITC, now it is ITK — it applied for up to 100 miles for the adjacent area for the water. Meanwhile the Government of Canada said you cannot own marine water.
We were up there for 1,000 years before the white men came in and now it is only adjacent water and you only give us 12 miles. Why is there a difference between the 200 miles and adjacent up there? Right now, it is not used as international water for the shipping; it is adjacent. It should not be 12 miles; it should go up to 100 miles. I believe it is up to 60 miles off Greenland between Nunavut and Baffin.
Mr. Bevan: There is a whole series of issues in that comment. The exclusive economic zone of the country can go out to 200 nautical miles. Territorial waters are close to shore, up to 12 nautical miles. Adjacency for the purpose of allocation of fish resources does not have applicable boundaries. Obviously, we cannot allocate resources to someone else's economic zone unless we have the quota under an international organization. Adjacency can apply beyond 12 nautical miles in terms of a minister's decision on who receives the share of a particular allocation. The Independent Panel on Access Criteria noted that as you go farther offshore, that call of adjacency could diminish. Maybe the historical attachment could add weight in that circumstance. Clearly it was not envisaged as a driver of the minister's decision on sharing allocations based on those criteria. In the land claim it has relevance to the processes that we have to follow, although I am not familiar with those details. The allocation decision that we have talked about would not be driven by such a rigorous set of definitions as exist in international law and perhaps in some land claims around those kinds of boundaries.
Senator Adams: I have another question. Under the land claim agreement, as long as the water remains frozen, we own the water but as soon as the ice melts, we do not own the water.
The Chairman: There is a great Newfoundland play, written by Mr. Ted Russell, about stealing the holes in the ice. The characters go before a judge to determine who owned the holes.
Let us conclude our questioning. I would suggest that we ask our researcher to begin preparation of a document on the information gathered today so that we can bring it back for honourable senators to review. Is it agreed?
Hon. Senators: Agreed.
Senator Watt: This might be totally out of your jurisdiction but I would like to ask you whether the beluga whale is listed as a fish species with DFO?
Mr. Bevan: Under the Fisheries Act, the beluga is not a fish, but in biology, it is a fish.
Senator Watt: We had a delegation from Nunavut appear before the committee some months ago and at one time, committee members considered travelling up to Nunavik. We have not got around to it because we do not know when the Senate will recess.
I understand that DFO resource people have reached a tentative agreement on allowable catch of beluga on Hudson Strait and Ungava Bay. I am not talking about sports hunting or commercial hunting. I am narrowing it down to subsistence for our purposes. I was surprised to hear the terms of the agreement. Perhaps I should say the terms imposed on the people. The Department of Fisheries and Oceans has imposed a tagging system for the health of the beluga and other natural considerations. We will have to get that straight.
There are approximately 200 belugas swimming freely with the other, larger stock in Ungava Bay and Hudson Bay areas. We heard from DFO scientists that because of a possible threat to those 200 belugas, officials decided to place a quota on all beluga, which normally migrate down through James Bay and up to Baffin Island and across to Newfoundland and Labrador areas. Inuit traditional knowledge says that there is no shortage of beluga. I think your scientific community said there is no shortage of beluga from the scientific information they have shown us. Despite that, they said that a section of that stock in Ungava Bay and Hudson Strait is threatened by overharvesting and decided to put a quota on the beluga.
This was not well received in Nunavik because the beluga is caught for subsistence purposes. Inuit do not travel a great distance to follow the species to hunt them. Rather, we hunt them by cycle. When the species are cycling through the area, we hunt, catch and harvest what we need to supply us for the rest of that winter season. When the beluga come back one year later, we repeat the process. There is no understanding between the scientific community and traditional knowledge. We have lived with this cycle and that has always been the way that we have harvested the belugas. Now, we have been told by the scientists that we cannot hunt the beluga in our area and that we have to travel to the southern part of James Bay or up to the two islands up by Hudson Strait. We are being asked to travel quite a distance — almost like following the species, which we do not traditionally do. This issue needs to be addressed because something is wrong. They want us to behave like commercial hunters and travel and search for great distances to try to catch our beluga. A security factor in this new imposition has not been considered. We have had two deaths already of people trying to comply with the recommendation of DFO's scientists. I wanted to tell you about this problem so that at a proper time you might raise it with some of your people.
Mr. Bevan: We held discussions between some of the elders in the delegation from the area and the minister. They expressed their concern that the quota had been imposed upon them and that in their view, the beluga was a much more abundant stock than the scientific advice indicated. The problem with the scientific view is that there are mixed stocks, as you pointed out, one of which is in bad shape and the other in good shape. When they mix through that area, there is no way to tell them apart except through DNA sampling, which will not help the hunters. Therefore, there was some concern that hunting the belugas as they migrated would put pressure on the stock.
We have obligations under the Species at Risk Act to conserve when any are listed. The agreement was that we would send the scientists to the area to consult with the people with the traditional knowledge and see if there is a way to close the gap and to find a better way to manage it. That was earlier this year. I am not sure of the outcome. We've seen that there is an agreement on how to pursue the hunt. That is my current information but if you have different information then a gap may still exist. Nonetheless that effort was undertaken. Scientists traveled to the area to work with the local hunters and come up with a plan that would satisfy both. I am not sure if there are still some concerns or if they have succeeded. This would mean that some of these issues have been dealt with but we have to pursue that and find out if concerns still persist.
Senator Watt: It is no longer based on misunderstanding. The logic from the scientific standpoint makes sense, but it does not jibe with the traditional knowledge side and the people who have the know-how. This is what I am hearing.
The species depend on nature. At times a small stock might have a tendency to be raised in the certain geographical area. Sometimes it becomes depleted from a certain area and that is nature. I am not saying let us accept that fact and let it be. You are concentrating on that stock of 200 beluga, apparently stock of Ungava Bay. DNA information indicated it was not part of the larger stock of Hudson Bay. Nature is nature and there is very little you can do.
Mr. Bevan: If the range changes that is one thing. A discrete population is different. The concern is not that the range of the discrete population is changing. If we eliminate that discrete population there are biodiversity issues and the strength of the overall population is compromised.
Senator Watt: We are not sure if that stock is growing regardless of what you do. That stock is probably not increasing at all.
The Chairman: You mentioned obligations to species at risk and obligations to environmental protection and so on. There is also an obligation for meaningful consultation with Aboriginal people. I believe it was the Delgamuukw decision that said that discussions with Aboriginals had to be meaningful and it was more than simply telling people what they must do. There had to be a shared intense dialogue, taking the views of both Aboriginals and scientists into consideration. That is an obligation for DFO.
Mr. Bevan: The Haida Nation and Taku River Tlingit decisions made it clear that we had to consult with First Nations.
The Chairman: What does consult mean?
Mr. Bevan: That is defined in these decisions. It is not just talk. We must listen and make every effort to accommodate their views in our actions. It has to be meaningful.
The Chairman: Are you satisfied that that is happening in this case?
Mr. Bevan: I was there when the intervention was made with the minister. We agreed to send people into the area for consultations, as understood under the law. I have not been kept current because it was the science arm of the department doing that. There was an effort to make sure the capacity for that kind of exchange existed and that what we have done reflects the outcome of those consultations.
The Chairman: Could you revisit that to make sure the discussion has been as meaningful as possible and meets the judgment that was made?
Mr. Bevan: Yes. I will undertake to do that.
Senator Watt: There are three steps to be taken on the basis of the constitutional rights of the Aboriginal people in order to fulfil the obligations of that consultation. I do not have that in writing now but I can certainly provide that to you.
The Chairman: I want to thank Mr. Bevan for being with us again and no doubt he will be with us again in the future. Honourable senators, we will have some words put on paper that we will show you.
This meeting is adjourned.