Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 25 - Evidence - June 7, 2012
OTTAWA, Thursday, June 7, 2012
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:06 a.m. to examine the subject matter of those elements contained in Part 3 of Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
Senator W. David Angus (Chair) in the chair.
[English]
The Chair: Good morning. I am calling this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources to order, as we continue our pre-study of Bill C-38.
This morning, we have with us a witness from Atlantic Canada via video conference, Bonnie H. Morse, Program Coordinator, Grand Manan Fishermen's Association. She is in beautiful St. Andrew's, New Brunswick.
I can tell from your smile that you can hear me. I will make a few introductory remarks, and then we will get going with your testimony.
Colleagues, we also have witnesses from the Assembly of Nova Scotia Mi'kmaq Chiefs and from the Assembly of First Nations. What we will do is hear Ms. Morse's testimony, question her and then proceed with them.
Ms. Morse, I think you are familiar with this committee. We are the Standing Senate Committee on Energy, the Environment and Natural Resources, and we are doing a pre-study of Part 3 of Bill C-38, which are those sections that deal with the facilitation of resource development. Of course, that includes fisheries, which I know you are particularly interested in. You and your organization were one of the first ones to contact us when we began our study, so we are delighted that we are able to hear from you this morning.
This is our sixth hearing on our pre-study. We have heard from different interest groups. Today, hopefully, is our last set of witnesses on our pre-study and then we will be reporting to our masters at another committee. We will certainly want to take into consideration the wise words you will share with us.
Just so you know who we are, I am David Angus, a senator from Quebec. I chair the committee. Today we have with us Senator Grant Mitchell from Alberta, deputy chair. Also, we have two folks from the parliamentary library. They do all the research about the Grand Manan Fishermen's Association and tell us exactly who you are. They are very helpful to us on many fronts. They are Ms. Sam Banks and Mr. Marc LeBlanc. Then, from the Yukon Territory, where they also have fishing, we have Senator Dan Lang. They fish for gold, lead, zinc and copper — all kinds of big fish.
From British Columbia we have Senator Yonah Martin who is filling in today for Senator Neufeld. We are delighted to have her with us again. I think it is her second or third time now. I thank her for being here.
Our clerk is Lynn Gordon, who you have dealt with.
We also have Senator John Wallace, from New Brunswick. We are getting closer to home for you. He is very familiar with St. Andrews and all the beautiful surroundings in that great seaside town.
We have Senator Judith Seidman of Montreal, Quebec.
Last but not least is Paul Massicotte, a senator from Quebec.
Before you give your presentation, I need a motion that we proceed by electronic media.
Senator Lang: So moved.
The Chair: All in favour?
Hon. Senators: Agreed.
The Chair: Without further ado, Ms. Morse, please begin. We have a copy of your document. All senators have it and we can follow along. We are interested to hear what you have to say. I know about Grand Manan; it is one of the really special places in Canada. I have been there often. Therefore I look forward to hearing from you.
Bonnie H. Morse, Program Coordinator, Grand Manan Fishermen's Association: Thank you and good morning. I obviously think Grand Manan is special as well. For those of you not familiar with where I am from, Grand Manan is a small island in the mouth of the Bay of Fundy. We are about 32 kilometres off the southern coast of New Brunswick. To get to the island, there is an hour and a half ferry ride. We are pretty isolated. We have just fewer than 2,500 people who live on the island full time and we are obviously very dependent on the marine environment for the economy of the island.
When the island was first settled, it was mainly settled with fisherman. In the last 30 years we have seen the aquaculture industry really take off and it has become an important part of our economy. We are always very careful. I have done a number of these presentations with colleagues over the last few years. We are very supportive of the aquaculture industry. It is an important part of where we are from. However, both industries have to be able to coexist in the marine environment.
Since 2009, the aquaculture industry has been hit with a problem of sea lice on their fish. They have developed a resistance to their normal treatments and they have had to go outside that for emergency registrations of pesticides to treat the sea lice and ensure the health of their fish.
One of the things that has concerned us a lot about this is that sea lice are in the same family as crustaceans, which provide feed for our herring that our fishermen depend on. When you look at juvenile lobster, they are similar in size to sea lice. We are very concerned about the impacts these things would have. In our discussions, some of the things we focused relate to how current sections 32, 35 and 36 of the Fisheries Act are interpreted by the Department of Fisheries and Oceans.
When you consider section 32, which is killing a fish by means other than fishing, certainly if you are killing lobster with a sea lice treatment, for example, you are not following the act as closely as we would like. You are also impacting the habitat for traditional fisheries in the Bay of Fundy. When you look at the definition of a pesticide, it is defined as a deleterious substance.
When Bill C-38 was introduced and we looked at changes to those sections of the act, obviously it raised concerns for us. We have continued to express these concerns and we have been looking for more information. We are really still struggling to try and understand what sort of impacts it could have.
As the emergency registration process exists now, there is no opportunity for input with public consultation. There are risk assessments done but it does not involve the traditional fishing industry and it does not always involve scientists who are directly involved with those species and their abundance in the marine environment. When you combine that with DFO's recent strategic review and they have ceased research into the biological effects of pesticides and contaminants, it leaves us feeling very vulnerable about the implications this will have for our industries.
We have asked for more information. We are still looking for that, but for us we are really concerned about the long-term impacts. When you look at a juvenile lobster, for example, it takes seven years for that lobster to reach maturity. We do not know what sort of things are happening in the marine environment, so when you start changing the act to no longer protect habitat until a fish is dead, we have concerns.
We have concerns when we look at new energy resources like tidal energy, for example, and the impact the acoustics in the water would have on herring, which are very acoustically sensitive, and some of the larger marine mammals like porpoise or whales that frequent the bay.
The Chair: May I interrupt you there? You raise an interesting subject, namely tidal power generation. Last year I went down there and saw what they are doing thus far in the Bay of Fundy. There is that power station up at the head of the bay. I was wondering what studies have been done. What knowledge do you already have about the effects of that power generation on the marine life? I was given to understand that there have been studies done and that there are no ill effects. If you have other information, please tell us.
Ms. Morse: I am not really familiar with what studies have been done because they are in Nova Scotia and they are further away from us, as you said, up at the head of the bay. When you look at the whale population, they tend to congregate around Grand Manan. For us, tidal power is probably a long way off, but it is one of the things we have always been concerned about in relation to the impacts it could have on those whales and on the herring, which do not necessarily go to the head of the bay but are more frequent where we are in the mouth. It is one of the things to be cautious about moving forward, and to have protections under the Fisheries Act is important.
To sum up, we are really concerned about the impacts this would have. We would like to have more information before this goes forward. When there have been potential changes to the Fisheries Act, there have been long periods of consultation. Looking at your list of witnesses, I believe I am the first one from the traditional fisheries industry who has made a presentation.
I by no means pretend to speak for everyone, but with a traditional fishery we have been completely overwhelmed by what this could mean and what it might mean. Like many organizations, we are non-profit and we do not have the wherewithal to get out and research and understand the impact this may have. We have not been afforded that opportunity.
I will leave it at that.
The Chair: Are those all your comments?
Ms. Morse: Those are my comments. I do much better with question and answer than I do with presentations. If that is all right with you, I will leave it there.
The Chair: That is fine. That is why I tested you out with an earlier question. You did great.
Two other senators have arrived. We now have Senator Janis Johnson from Manitoba. She is our resident fisheries expert so you might expect some penetrating questions from Senator Johnson.
At the end of the table, from the Northwest Territories, is Senator Nick Sibbeston. You have met us all.
Senator Mitchell: Ms. Morse, you said that perhaps you do not speak for everyone but to those for whom you do speak, you speak exceptionally well. Thank you for your presentation.
It is true that you are the first representative from the traditional fishery that we have heard from. I am very interested in pursuing your point that you and organizations like yours were not consulted at all, either by the minister or officials and that no one made an effort. There were no round tables and no one with questionnaires.
Ms. Morse: We had a national conference call on Friday last week. It was a technical briefing. It was difficult to sort of get the information. I am not a huge fan of conference calls to begin with, so it was challenging.
Senator Mitchell: We are sorry that we put you on a conference call today, but you are doing really well.
One week ago, long after the 400-page omnibus bill was completed, they picked up the phone and gave you a technical briefing on it.
Ms. Morse: There was a technical briefing, and they gave us an opportunity to ask one question and one follow-up. It lasted about one hour.
Senator Mitchell: That is interesting; so much for democratic input.
The second question I am interested in pursuing, and you alluded to it, is about the scientists and their resources, et cetera. Are you aware that part of this bill will involve putting a lot of the Department of Fisheries and Ocean's responsibilities for environmental assessment under the Canadian Environmental Assessment Agency? Are you aware of that? Have you and your organization had a chance to think about the implications of whether the CEAA will have sufficient resources and experience, whether DFO officials who do that kind of work will be transferred to the CEAA, whether they will be laid off or whether there will be the resources to do this?
Ms. Morse: I am aware that that is the plan, but not having the details of how it would work leaves us with more questions than answers. I am sitting at the St. Andrews Biological Station, where a lot of DFO science research for the Bay of Fundy is done. We are fortunate to have them based here in southern New Brunswick. They have a very hands-on sort of experience in things like lobster and herring, or bigger things like tidal flow, hydrographics and that sort of thing. To have a section of the research here removed, I am not sure that they will be picked up by Environment Canada, who has made cuts as well. Not having the information on how everything will mesh together is one of our challenges. It is a large bill to try to absorb in a short amount of time.
Senator Mitchell: You may be aware — I hope that you are aware — that the current act has a five-year review. It is automatic, standard, and must be done. If there were weaknesses in the act, there would be a statutory requirement that that be reviewed and assessed. In this case, just to your point, after you get some experience you will not even have that provision in this bill. There is no provision, statutory or mandatory, that it be reviewed after five years; they have taken that out. Were you aware of that?
Ms. Morse: I was not aware of that, no.
Senator Mitchell: I guess I am making your day. I will come back on a second round. Thank you.
Senator Wallace: Ms. Morse, how is the weather in St. Andrews this morning?
Ms. Morse: It is a little drizzly, but it is supposed to clear.
Senator Wallace: I was afraid of that. I am coming home tonight so maybe it will clear.
Ms. Morse, any of us from southern New Brunswick are well aware of the issues between the coexistence of the aquaculture industry and the natural fishery. In your written presentation, you touch on that. You have had concerns about that, in particular with the sea lice and how that has been dealt with — the pesticides that have been used to kill or control the sea lice, and the impact that has had on the natural fishery, in particular lobsters. When I read your presentation, I was not clear on the concerns you have about Bill C-38 versus a continuation of the concerns you have about the way the Fisheries Act works today and the protection, or maybe in some ways the lack of protection, for the natural fishery. Obviously, we want to hear your concerns about Bill C-38 to the extent that you know them, but are many of your concerns with the way the act is today perhaps considered a negative impact on the natural fishery?
Ms. Morse: I think that is it. We are concerned about how the act is today. My interpretation of Bill C-38 is that some of the protections that we have right now would become less with the changes.
When you look at the habitat protection, in particular, and you focus on whether a fish is dead or alive, sometimes changes to habitat do not necessarily kill the fish but they change their fishing patterns. We had an example in North Head on Grand Manan where an aquaculture site had come in. There had been an ongoing dive study there to count lobsters by DFO in the early 1980s. The aquaculture site set up in the early 1990s and the lobster left the area. Clearly the habitat was impacted.
The site was later removed because it interfered with the ferry backing out of the wharf and there was concern about that kind of interference. When the site moved, the lobster returned. It was not a permanent destruction of habitat but it certainly changed how the lobster acted in the area. My interpretation of the bill is that we would lose some of that protection for habitat.
Senator Wallace: You represent the Grand Manan Fishermen's Association focus on the commercial fishery. Is that correct?
Ms. Morse: That is correct, yes.
Senator Wallace: The changes in Bill C-38 would highlight the commercial fishery in addition to the Aboriginal and recreational fisheries for particular protection. Does that not give you some comfort that the changes to Bill C-38 would zero in on the fishery that your association represents?
Ms. Morse: There is some comfort that it is protecting those fisheries, but it is the habitat protection. There is some concern from fishermen in general that the ecosystem as a whole is not being looked at. There are changes in the environment in the Bay of Fundy. The water has been warmer in the last years and the fishermen are noticing changes. By not looking at the ecosystem as a whole and focusing only on traditional fisheries, we sometimes miss things that we may not realize are triggers for something else. I think that may be the concern.
Senator Wallace: Again, these are not things that we should guess about because, obviously, there is a lot at stake. However, would it not seem reasonable to assume that if the act is to protect the commercial fishery, it would have to protect anything in relation to the continuation and the growth of that fishery, and obviously that is the habitat that the fish depend upon? I hear some criticism that we just look at the fish and at nothing else. To me, that would be highly simplistic, and I could not imagine that ever being the intent. Would it not seem reasonable that the habitat that supports the commercial fishery would have to be an integral part of the changes contemplated by Bill C-38?
Ms. Morse: It would make sense, but that has not always been our experience to date, and that makes us hesitant. The perception is that there will be less protection for traditional species, and we are concerned. Not having the policy and the actual implementation information is a challenge. If we had more information, maybe we would feel better about it. It is the lack of information we have received that frightens us.
Senator Lang: I think it is safe to say that the current Fisheries Act applies across the nation. Subsequently, in some areas of the country, it is more responsive to the fisheries than it is in other parts of the country because of the nature of the act. Our country is so vast that how the act is applied differentiates across the country. One rule in New Brunswick is not necessarily the best one for the Yukon, for example, because they are two vastly different areas as far as our nation is concerned.
I want to follow up on this. The Minister of Fisheries testified here last week, and he assured us that the purpose of the bill was, in part, to give more of a regional sense to the act and its application. It would enable the federal government to enter into agreements with the provinces and stakeholders in other regions and come to agreements on how the fisheries may be managed in certain areas.
It seems to me that if that principle is applied to your situation in your region, this may be the section that will allow you to have more say than you have had in the past about how that fishery should be managed.
Have you looked at it from the perspective that the enabling clauses in the legislation will allow organizations such as yours to become as involved as you want to be with respect to having more influence and direction on the habitat and the fishery in general?
Ms. Morse: There is a section of the act that talks about funding for fisheries management and one that refers to science. We were doing projects in our region before the Larocque decision made us unable to do that anymore. Those parts are encouraging.
The only hesitation I have about that is that previous versions of the Fisheries Act outlined who could enter into these agreements. I think the words were "a recognized fishing organization. " That part is omitted from the act and there is a little trepidation there. However, the concept is something we have been familiar with, and it has some potential.
Senator Johnson: Senator Wallace touched on a very important thing that you were discussing as well.
I want to talk about the habitat. Much of the push-back is about that particular aspect, as you mentioned in your opening comments. Can you tell me about how this might affect the trawling practices and habitat destruction? Would new laws and regulations change the impact of bottom trawlers?
Ms. Morse: Not that I am aware of. Within our organization we do not have bottom trawling. We have a few scallop draggers, but I am not aware of any impact on that.
Senator Johnson: You believe that Bill S-35 weakened the former legislation. If you do not like the regulations that are being proposed, how do you believe it would be better done?
Ms. Morse: With regard to cottage docks and ditches and such things, it would be helpful to have an outline, whether in policy or regulation, along with this, so that we could see how far reaching the intent is. Hesitation comes in when you start looking at larger projects, especially something in a marine environment. Because we have had the experience with aquaculture, we are a bit gun shy about what the implications could be.
Senator Johnson: You are saying that one of the bigger problems is lack of consultation. You said that you had one hour of discussion?
Ms. Morse: That is it.
Senator Seidman: Ms. Morse, Senator Wallace asked the question I was going to ask. You presented the status of the current situation and your concerns about it and I was interested in knowing how the proposed changes in the regime would affect you.
Since you have spoken to that, I would like to ask about your concern about the lack of attention paid to the science, especially going forward. You say that Canada is the only country in the world that has a salmon aquaculture industry that uses these chemicals in shared waters with an active, healthy crustacean fishery. Then you say that the projects received an emergency registration from Health Canada and therefore there is no opportunity for public input, but you are assured that these risk assessments are CEPA equivalent. Could you please expand on that?
Ms. Morse: In order for an aquaculture site to use one of these pesticides, an application is made by the Province of New Brunswick to Health Canada. My understanding is that Health Canada will consult with scientists from DFO and Environment Canada and the emergency registration will be issued with conditions. They have a risk assessment process, which we have been told that we may receive a copy of sometime this month. We have not seen it over four years to understand how the risk assessment process works, and because it is an emergency, there is no public consultation.
If these products were going for a full registration, there would be an opportunity for public input, but because it is just a one-year emergency registration, there is no consultation.
Senator Seidman: Why is it an emergency registration?
Ms. Morse: That is how it has been termed by Health Canada and DFO. This has been a learning curve for us over the last couple of years. I understand that a full registration requires a three- to five-year process, so in the interim they are doing emergency registrations to treat for the sea lice.
I am not sure that they have applied for a full registration at this point, but they can continue to use emergency registrations. There is no cap on the number of times they can do that.
Senator Seidman: Is there an ongoing scientific study of the effects of these toxins on other life forms?
Ms. Morse: There has been in the past. We are concerned about that because DFO has withdrawn from it. They have looked at things like the tidal current in the area where the treatments occur to see how far the toxicity goes. They looked at the toxicity in the water and discovered that it remains toxic much longer than they had originally anticipated. The loss of that research is very concerning for us considering that we have a shared environment.
Senator Seidman: Thank you for that explanation.
Senator Mitchell: You have some concerns with the way that the CEAA existed prior to Bill C-38, particularly with respect to a case like sea lice and the impact of pesticides or aquaculture chemicals on that. It is your contention that nothing in this bill will alleviate any of those concerns. In fact, it is your profound belief that it weakens your ability to control and confront those kinds of problems in the fisheries, which could have a huge impact on jobs in your industry.
Ms. Morse: We have been concerned about how the current act is implemented. Without a good understanding of the intent and what could transpire with these changes, we are concerned about what impact it will have on us in the future.
Senator Wallace: In Senator Mitchell's question he suggested that you were of the view that Bill C-38 would worsen the current situation that you have concern about. I did not hear your response saying that you thought it would worsen. I thought your response was that you were uncertain and that is the concern that you have. Is that true?
Ms. Morse: Yes; we are not completely certain about the impact. I do not think it will improve our situation. I do not know if it will make it worse, either. I cannot say that with any certainty.
Senator Wallace: No. You have not formed an opinion about that. I wanted to clarify that.
Senator Mitchell: Of course, if you had some information about what is really happening, you might be able to form an opinion notwithstanding.
Senator Wallace: But your question was the fact that —
Senator Mitchell: It was the fact that she said she didn't get very much information. You got a phone call a week ago, did you? Yes. That was helpful.
Senator Wallace: I do not think that is your question. Anyway, I understand you.
The Chair: If there are no further questions for the witness, I would simply point out that, which I am sure you already know, the Minister of Fisheries and Oceans is a fellow New Brunswicker, the Honourable Minister Ashfield. He did come to the committee. He and his officials, although they have not been accessible to you up to now, are interested in the situation in New Brunswick. I urge you, if you have issues, to come forward, as you are doing this morning. We will be passing your message on.
Ms. Morse: Thank you for the opportunity. I really appreciate it.
The Chair: As we continue our pre-study of Bill C-38, the budget implementation bill, particularly Part 3 dealing with resource development procedures, we are blessed this morning to have with us, from the Assembly of Nova Scotia Mi'kmaq Chiefs and from the Assembly of First Nations, a panel of five witnesses, and a raft of back-up experts as well.
Gentlemen, I have spoken to some of you and we are absolutely delighted to have you here. I think it is your first experience before a Senate committee — certainly in the case of Chief Terrance Paul. We will be interested in what he has to say.
Chief Paul, let me say that you have held the position of Chief of Membertou, which is the Membertou First Nation, I believe in Cape Breton, Nova Scotia, since 1984. During this time you have guided your community and administration into one of the most open and efficient native communities in the country. You have served on numerous boards and task forces, and you are one of the original founders of the National Capital Corporation Association, which started out as seven Aboriginal corporations and has grown to 50 Aboriginal financial institutions across the country.
You started your career with the Boston Indian Council, where you received your background training in finance and management. You began as a job placement officer but were quickly promoted to director of finance before being named president of the council.
Upon returning home to Membertou, Chief Paul worked as the economic development officer and band manager, before being elected chief in 1984.
Chief Paul has achieved many accomplishments in his role as chief, including doubling the land base for the Membertou reserve. He also assisted Donald Marshall Junior in his successful and long drawn out case in defence of the Mi'kmaq treaty rights to fish, which resulted in approximately $600 million in the Atlantic for the Mi'kmaq nation.
In 2012 Chief Paul was inducted into the Junior Achievement Nova Scotia Business Hall of Fame recognizing his accomplishments and contributions to that province.
With Chief Paul is Bruce H. Wildsmith, the legal counsel of the Mi'kmaq chiefs. Mr. Wildsmith, we have a copy of your CV, but if you will forgive me, I will not go into it. Because Chief Paul has not only all of the normal expertise in things but also this great financial expertise, I thought colleagues would like to hear his full CV.
We also have here, from the Assembly of First Nations, Morley Watson, Regional Chief of Assembly of First Nations Saskatchewan. It is great to have you here. Recently, we had with us Grand Chief Atleo and Mr. Jones, who seems to know a lot of things about your organization. You have with you, this morning, a couple of advisers: policy analysts Will David and Daniel Pudjak.
You are well supported here, chief. We have tried to brief ourselves. We have received some materials, and we are all ears. Chief Paul, you are the first up to bat.
Colleagues, I misspoke earlier to the lady from the fishermen's council. I think this Mi'kmaq group were the first one ones to approach our committee to seek a hearing. This is our last day of hearings on our pre-study.
Over to you, Chief Paul.
Terrance Paul, Chief, Co-Chair and Chief of Membertou First Nation, Assembly of Nova Scotia Mi'kmaq Chiefs: Thank you, Mr. Chair.
Good morning, Mr. Chair and members of the committee, fellow witnesses and guests. Thank you for having us here today to discuss the implications of Bill C-38 on our fisheries. I am here today representing the Mi'kmaq of Nova Scotia as the Co-Chair of the Assembly of Nova Scotia Mi'kmaq Chiefs, Portfolio Lead on Fisheries and as chief of my own community, Membertou. I am thankful for the opportunity to be in Algonquin territory.
The Assembly of Nova Scotia Mi'kmaq Chiefs consists of the chiefs from all the 13 Mi'kmaq communities in Nova Scotia. Together, we work with delegated authority to oversee issues that are common to all of our communities, and today's issue is no exception to that.
What brings us to the committee today is our concern with Bill C-38. This bill has serious flaws in its definition of Aboriginal.
As defined in this bill, the concept of Aboriginal fisheries is limited to those who fish for food, social, ceremonial and subsistence purposes only.
With this definition, Mr. Chair, Bill C-38 will result in the infringement of our constitutionally protected right to harvest and sell fish to support a moderate livelihood.
Section 133 of Bill C-38 provides an amendment to the Fisheries Act by adding to subsection 2(1), where Aboriginal fishery is newly defined. This proposed definition will limit the minister to only authorize Aboriginal fisheries conducted for the purposes of using fish as food or subsistence and for social and ceremonial purposes.
While we will be able to participate in the commercial and recreational fisheries along with everyone else, under the same licenses, rules and regulations, this new definition will take away the opportunity to have any other fishery based on our Aboriginal and treaty rights.
For the Mi'kmaq specifically, this means that we will now be prohibited by the Fisheries Act from engaging in our Supreme Court-affirmed right to fish for a moderate livelihood. A moderate-livelihood fishery is neither a subsistence fishery nor a commercial fishery.
The Mi'kmaq right to fish for a moderate livelihood is based on a series of treaties made in 1760 to 1761 and was affirmed by the Supreme Court of Canada in its 1999 Marshall decision. Our right to fish for a moderate livelihood is a constitutionally protected treaty right, recognized and affirmed by section 35 of the Constitution Act. Bill C-38 not only disregards this but also leaves both our people and your government with serious compromises.
The Chair: Chief, you have our attention. You are dealing with the definition of "Aboriginal " in the act, and you read out the definition at the top of page 2 of your brief.
What does it not include? It says it means that "fish is harvested by an Aboriginal organization or any of its members for the purpose of using fish as food or for subsistence or for social or ceremonial purposes. " What is missing? It seems to be an all inclusive definition to me, but I recognize that I am kind of an amateur on this.
Mr. Paul: It is funny, Mr. Chair, that we discuss that. We knew that that would be the question and that that would be the answer because we are different. We think differently. I will defer to my legal counsel as to what is missing.
Bruce H. Wildsmith, Counsel, Assembly of Nova Scotia Mi'kmaq Chiefs: When the Supreme Court handed down it is 1999 Marshall decision and talked about the right of the Mi'kmaq, under those treaties and the protection of the constitution, to fish for a moderate livelihood, they wanted to explain what a moderate livelihood was. In our brief, we quote the pertinent passage that talks about a moderate livelihood. When you look at the definition and the purposes of food, social and ceremonial and subsistence, the Supreme Court said subsistence is not what this is about. They specifically said that it is beyond bare subsistence for Aboriginals and non-Aboriginals alike.
Then they said that a livelihood is not the same thing as a commercial opportunity to accumulate wealth, so they were saying that this is not an open-ended right to sell fish for wealth like a commercial fishery. It is something in between, and it is limited to obtaining a moderate livelihood.
The words "food, social and ceremonial " are terms of art that are used in the Department of Fisheries and Oceans to explain the use of fish for consumption by Aboriginals. It is not about the sale of the fish.
It is very common for the Department of Fisheries and Oceans to issue what are called Aboriginal Communal Fishing Licences for food, social and ceremonial purposes. Of course, the use of food, we all understand. Social and ceremonial is not defined, but, in essence, it is about the use, in the community, for social occasions such as wedding or funerals, or for ceremonial occasions. That is not terribly pertinent, but there are gatherings that the Mi'kmaq have annually in Chapel Island, in Cape Breton, meetings for the grand council; there would be ceremonies associated with that, and fish would be used for consumption. These are all about internal uses but not about the sale.
The Chair: Are you really saying that this definition we have pinpointed here excludes commercial fishing in the large sense?
Mr. Wildsmith: Yes, in the sense of being special to Aboriginal people or, in this case, particular to the Mi'kmaq but not just the Mi'kmaq of Nova Scotia. The same treaties apply through New Brunswick, through the Gaspé region and through Prince Edward Island. They could possibly apply through Newfoundland as well, though that is a matter of debate. Quite clearly, they include portions of four provinces in Eastern Canada. This right is a right to the Mi'kmaq and the Maliseet First Nations.
Senator Massicotte: Just to clarify this one issue, on the commercial side there is a separate definition that would allow you to fish commercially. However, you are saying that the Supreme Court defines "commercially " as fishing for the creation of wealth. You are saying you are not there yet. There is another subset for reselling fish for the sake of a moderate living. That is the part that is not covered. Commercially is too strong because it is gathering wealth. That is not what you are talking about. You are basically saying you want to resell the fish for the sake of a moderate lifestyle and that is the missing part. Am I correct in saying that?
Mr. Wildsmith: Absolutely.
The Chair: Excellent; I think we have clarified it.
Chief, we interrupted you. We will go back to you to finish your presentation.
Mr. Paul: My first comment will be that clarification, which was discussed.
At present, the Fisheries Act does not use the word "Aboriginal. " Under the authority of section 45 of the Fisheries Act, the Aboriginal communal fishing licences regulations have been enacted. Currently, regulations allow the minister to issue communal licences for livelihood and commercial purposes. These proposed amendments, with their new definition of "Aboriginal, " will undermine the existing structure of our licences by eliminating our commercial fishery and our right to fish for a moderate livelihood.
In conversations and meetings we have had leading up to today's presentation, we have been told by the Minister of Fisheries and Oceans that despite our constitutional rights any unlicensed fishery would be regarded as illegal and subject to prosecution.
Taking away our moderate livelihood fishery will have major implications for our people. Many people in our communities still trade or sell today what they collect through hunting, fishing and gathering to provide for their families. This fishery is not about wealth; it has never been. It is about survival. By not including our moderate livelihood fishery, the amended Fisheries Act becomes both under-inclusive and unconstitutional.
The other major concern we have with Bill C-38 lies in the fact that the Mi'kmaq have not been consulted by the Crown on these amendments. Domestic law recognizes the duty to consult and to accommodate First Nations when decisions of the Crown may have an impact on the Aboriginal and treaty rights. We have been actively working on a government-to-government level to overcome these issues. The made-in-Nova Scotia process was entered into by Canada, the Province of Nova Scotia and the Mi'kmaq in February of 2007 to address these issues. This negotiation process agreed to by your government is the basis for the consultation process, the one that is not being fulfilled with changes being introduced in this bill and its amendments.
As it stands, Part 3 of Bill C-38 will have a direct impact on the federal government's ability to fulfill their constitutional duty to consult with the Mi'kmaq on decisions that are likely to infringe on our rights. We have come to you today, on behalf of the Mi'kmaq of Nova Scotia, to have these major concerns heard. We hope that you can recognize how strongly rooted our concerns are in the traditions, lives and culture of our people.
The realities of these amendments to this bill will not only impact the lives of our people, but also the foundation we have attempted to build in our nation-to-nation agreements. We recommend that the appropriate next steps be to remove the fisheries provisions from this bill and to advise the Minister of Fisheries and Oceans to engage in formal consultations with the Mi'kmaq of Nova Scotia under the consultation terms of reference.
We hope that you also recognize the importance of proper consultation. We ask that you make the recommendation for the definition of "Aboriginal " to be amended, ensuring that the constitutional rights of the Mi'kmaq are not overlooked and dismissed any longer.
Thank you for your time.
The Chair: Thank you, chief. Attached to your presentation, which is a brief we received under date of May 30, was a copy of a letter you sent to the Minister of Fisheries and Oceans, Minister Keith Ashfield. You sent a copy of that letter to us. Did you ever get a reply to that letter?
Mr. Paul: No, I did not.
The Chair: Not at all?
Mr. Paul: One of many.
The Chair: There have been many similar letters and requests for a hearing and consultation. Have you had nothing but silence?
Mr. Paul: I will ask Mr. Wildsmith to elaborate on the process of what happened in this letter writing to the minister.
Mr. Wildsmith: My memory is not long enough to go back that far. To try to say it in a summary way, for years the Mi'kmaq have said that consultation should occur on amendments to the Fisheries Act. I am sure the committee is aware that the House of Commons has had Fisheries Act amendments and whole new acts in different Parliaments. Letters have been sent to Minister Ashfield and his predecessors saying that is one of the issues on which they should be consulting the Mi'kmaq. There have been some other letters to the minister which have eventually been answered, but not in a fully satisfactory way.
Most recently, there has been a letter which, if my memory is correct, asked for a meeting with the minister in March, although not specifically on this bill of course. There has been no answer to the request for a meeting as of months ago, in the early spring.
The Chair: I should point out one thing. This committee's expertise is energy, the environment and natural resources. We have been asked by the Senate to do a study of Part 3, which we are doing. Just so you know, there is a fairly engaged Standing Senate Committee on Fisheries. I do not know if you have had any interaction with them, but I put it out to you as a suggestion. These Senate committees are very different from the House of Commons committees. You might get some relief. You will get relief from this committee as well, but I am suggesting that you be aware of that Senate committee as a forum for you to be heard and one that will take an interest in your issues.
Without further ado, next we have Regional Chief Morley Watson of the Assembly of First Nations. I believe Saskatchewan is his home territory.
Morley Watson, Regional Chief of Assembly of First Nations Saskatchewan, Assembly of First Nations: Good morning to the members of the Senate. I want to thank you for this opportunity. I am honoured to be in your midst this morning to represent our people.
I also want to say good morning to my colleague Chief Paul. It is a pleasure to be with him again.
Again, as I said, thank you on behalf of the Federation of Saskatchewan Assembly of Indian Nations, as well as the Assembly of First Nations. I am the interim chief of the Federation of Saskatchewan Indian Nations, which is the political organization of our 74 First Nations in Saskatchewan representing our population of about 135,000 people. I extend greetings and thank you for welcoming us into Algonquin territory. My comments this morning will focus primarily on two matters.
First, I would like to speak to the impact of the proposed amendments to the Fisheries Act and the Canadian Environmental Assessment Act. These amendments significantly impact our inherent right and our responsibility to protect our natural world, which includes the health of our air, our lands and resources, and our waters. Significantly impacted also is our treaty right to sustenance. We have hunted, fished, trapped and gathered for thousands of years in these territories now called Canada; and we will continue to do so.
Before the arrival of the newcomers, the indigenous people clearly understood that the land, the air and water are gifts from the creator. These gifts ensured our survival and sustained our livelihood. Our people have the responsibility to preserve and protect these gifts for the benefit of present and future generations. During treaty-making, our peoples agreed to share these gifts with your ancestors and with you. We understood the concept of sharing, which is fundamental to our cultural laws. We did not cede or surrender these gifts to anyone or to any government. However, since the conclusion of our treaty in our territories, governments have assumed jurisdiction over our lands and resources through legislation. The legislation is a violation of treaty. Indigenous peoples have fought hard to have our treaty rights entrenched into the Constitution Act of 1982. This act of Parliament means that governments cannot unilaterally propose actions that will abrogate or derogate from these rights.
Bill C-38 impacts our treaty right to fish with its proposed amendments to the Fisheries Act. It narrows the definition of "protection " that applies to the fish, fish life and fish habitat of all fish. The bill lowers the standard of care and protection that will ultimately endanger the health of our people, who rely on fish as a food source for their livelihood and their health. Bill C-38 will also gut the environmental protection provisions of the current Canadian Environment Assessment Act. The proposed amendments give cabinet too much authority and control over environmental assessments and projects. This threatens to politicize environmental decisions. The future of the environment is more important than jobs and profitability.
Second, Canada has failed to consult with the indigenous peoples on the proposed amendments to these acts. This bill does not reflect the Supreme Court decision on the duty to consult and accommodate. In addition, this failure is in conflict with the United Nations Declaration on the Rights of Indigenous Peoples, which clearly acknowledges indigenous peoples' right to free, prior and informed consent. Bill C-38 is a clear attempt to purposely minimize the federal government's obligations to consult and accommodate First Nations treaty and inherent rights.
I want to make it clear that Bill C-38, as it stands, will be rejected outright by our peoples if our concerns and needs are not accommodated. We need mechanisms in place to ensure that traditional environmental knowledge is respected and utilized in environmental monitoring, evaluation and reporting. We must participate in environmental protection activities that directly impact the lives of our people.
The Federation of Saskatchewan Indian Nations strongly recommends, and we are joined by other regions of First Nations people across Canada, that Bill C-38 be divided into several components, particularly those provisions dealing with environmental protection. We also want to study the impacts of our rights, to be able to respond in a meaningful way, to be able to negotiate accommodation where required and to formally participate in decision-making that affects the lives of our people.
With that, sir, that is my brief report to you. I thank you for the opportunity to present to you this morning.
The Chair: Thank you very much, Chief Watson.
Senator Mitchell: Thank you, gentlemen, for your very compelling presentations. Perhaps by way of summary, on the one hand, the government has not consulted you, has not answered your letters, has not given you the telephone call that it seems the previous witness, at least, received a week ago. On the other hand, they have neglected this very important point about moderate livelihood. Is it that they just made a mistake because they did not consult you, or do you think they actually excluded that on purpose and they just did not want to consult you in case it came up? Are they doing it by mistake or on purpose? Either one or both?
Mr. Paul: Both. That is the feeling we get on various levels. The Marshall decision by the Supreme Court was in 1999. This is 2012 and we have yet to implement the Marshall decision.
Senator Mitchell: They have a crime agenda, but not when it applies to those kinds of laws, I guess.
One of the reasons that the government wants to make these changes, arbitrary as they are, is that they want to speed up the process of environmental review and reduce obstacles to development and so on. From what you are saying, and I am not a lawyer, it seems that there are all kinds of bases upon which groups like yours could actually take this to court and create great delays. Is it a fair assessment to say that this will be counterproductive to speeding up the process of review?
Mr. Paul: That is one of our tools.
Senator Mitchell: Do you have the resources that you would need to mount those kinds of court cases collectively with other First Nations?
Mr. Paul: Collectively, we usually gather our pennies to make sure our lawyers are paid.
Senator Mitchell: Of course, you could use that money in other ways more protectively for your people.
Mr. Paul: For sure.
Mr. Watson: If I may add to that, thank you, Senator Mitchell. The Assembly of First Nations has submitted 16 questions to the Minister of Fisheries and Oceans, but we have had no response.
On your other question, for years our people have been under the Indian Act, and the paternalistic attitude of the government continues today. It always has been that way. It has never included us in decision-making on anything, including our lives and the lives of our children and grandchildren. I hope that one day soon the government will realize that if anything were to succeed with our people and our communities it must have our inclusion, our participation and our okay stamp on it. We have seen for 130 to 140 years in treaty that when things are done for you without your consultation and participation, the chances of success are very slim. I would hope that the Government of Canada and Indian Affairs — we still recognize Indian Affairs, not Aboriginal Affairs — will work with the leaders in our communities across Canada to ensure that the lives of future generations are more beneficial and effective, not only to us but also to all Canadians.
Senator Mitchell: I will point out one thing, which is by no means efficient but is a small step. If you give me those 16 questions, I will submit them as written questions on the Order Paper. I will submit them through an MP, and there is a greater urgency on that side in that they have to answer within 45 days. Mr. Paul, if things arise out of your presentation, I would be happy to submit them as written questions so we might be able to get the minister's attention in that way, although it is appalling that we have to go to those lengths to do it.
The Chair: I say this with tongue in cheek: We have advised Senator Mitchell to keep these points in mind when he becomes prime minister. He has assured us that he will do that. Those will be interesting times.
The other point I want to make, without tongue in cheek, is that our study is Part 3 of Bill C-38, and there are many other parts to the bill. I have interpreted thus far, rightly or wrongly, the thrust of your evidence to be directed to the fisheries provisions in the bill.
There are many other aspects. Our information is that there was consultation and great involvement of First Nations in some of the things, such as the streamlining of environmental assessment processes with regard to major resource development projects. I do not know whether that is true or not, but that is certainly what we understand and have been told.
We do understand that, with the fisheries, it is a particular thing. As I said, our mandate normally does not include the fishery. Am I right that your criticisms, which have been well articulated this morning, relate to those fisheries provisions?
Mr. Paul: Yes, for this presentation here today, but we do have concerns as far as the environmental processes go. In the province of Nova Scotia, we have been a little bit successful in having the province work with us to make sure that we are satisfied that there is no damage as to whatever the project is. We are involved to a good extent.
The Chair: You are okay, Chief Watson?
Mr. Watson: Yes, thank you, Mr. Chair. I appreciate that as well. It is not only the fisheries. Equally as important are the air we breathe and the environment. Everything is important to good health. The environment and the fisheries are all very important to all of us.
If I could, to Senator Mitchell, we have submitted questions to a member of Parliament, Phil Toone, from the New Democratic Party and the province of Quebec. We have sent our 16 questions to him, and we are hoping to have that response but, again, I thank you for that offer to expedite that process.
Senator Mitchell: I am not going to do it on the Senate side, but I just emphasize it.
Senator Wallace: Chief Paul, to come back again, I am struggling with your comments that you consider that Bill C- 38 would remove the Aboriginal right to fish for a moderate livelihood. As you point out, that right is enshrined in the Marshall case. Can you follow me on this to see if I understand this correctly?
Bill C-38 would define "Aboriginal " in relation to a fishery for the purposes of fish as food, sustenance or for ceremonial or social purposes. That definition does not include moderate livelihood. It seems apparent.
However, Bill C-38, beyond the protection of Aboriginal fishery, as defined in the act, relates specifically to the recreational and commercial fishery, in particular the commercial fishery. The reference to "moderate livelihood, " as I understand it, would relate to an Aboriginal's right to harvest fish and to sell them to provide for family. There is the harvesting and the sale. There is a commercial activity, the sale of fish. That is what the term relates to.
What I am struggling with is why you believe that the general reference in Bill C-38 to the commercial fishery, which would relate to Aboriginals and non-Aboriginals, does not cover your right to a moderate livelihood. Commercial activity is the harvesting and sale of fish for the purpose of realizing money. Is that right to a moderate livelihood not protected under that general reference? I will let you answer that, but, if that is the case, is your concern really that that moderate livelihood reference is not carved out particularly for Aboriginals but rather is now encompassed in the broader right that is given to all Canadians, including Aboriginals and non-Aboriginals?
Mr. Wildsmith: The point I think we should understand is that the word "commercial, " used in a layman's sense, refers to any time you sell something. Under the Fisheries Act, "commercial " means a set of rules that are laid down for all fishermen, as citizens of the country, who are engaged in that activity, rules to accumulate what profit and wealth the fishermen can out of that industry. That is specifically what the Supreme Court said is not a moderate livelihood.
I think, with respect, that we need to separate the layman's notion of "commercial " from the term of art that is used in the fisheries context. These words are not just drawn out of thin air; these words refer to the overall regime that is laid down in the fisheries legislation. Commercial means "commercial, " as the witness from Grand Manan spoke about it. If an Aboriginal community is fishing the way that they are fishing, it would be the same way, under the same rules and everything.
However, when you start to read the rights of Aboriginal people under treaty and under the concept of Aboriginal rights, you see that there is a justification test that must be applied any time rules are laid down against Aboriginal people exercising their rights. That justification test does not apply to a commercial fisherman. The commercial folks fish under licence as a privilege. The Mi'kmaq, under their treaties, have a constitutional right to fish under the Constitution, with the ultimate authority of the minister to regulate if it can be justified.
What is happening today, under Aboriginal Communal Commercial Licences issued by the minister under the Aboriginal Communal Fishing Licences Regulations, is that the Mi'kmaq have licences as a result of this multimillion dollar fishery that took place after the Marshall decision in 1999. However, they are fishing like commercial fishermen, under the same rules and regulations as the commercial fishers. Is that the same thing as the moderate livelihood? We think that the Supreme Court said that it was not the same thing. There are tests of justification that have to apply related to seasons, quantities, equipment and all of the technical terms and conditions that apply to the commercial fishers. What happens under the Aboriginal Communal Commercial Fishing Licences is that all of those rules are picked up and dropped in. They say, "Here is the licence for you. We bought it from a commercial fisherman. You have to use it just like that commercial fisherman did; the only difference is that we are giving it to a community. "
If you stretch your mind for a moment and think about the terminology that is actually used in the regulations, they are called Aboriginal Communal Fishing Licences Regulations. You see those two words "Aboriginal " and "commercial " in the title to the regulations. Now we take the definition. How can you have Aboriginal commercial fishing? Aboriginal is restricted to those other activities in the definition. "Commercial " is something different. You cannot have the word "Aboriginal " now, by definition, used to provide commercial opportunities. The licences, themselves, are issued the same way. Moderate livelihood is a halfway house, different than commercial and subsistence.
I should say, by the way, that in the definition of "Aboriginal, " the Aboriginal communities are well used to the terminology "food, social, ceremonial. " They are not used to the term "subsistence. " Where did that come from? What does that mean? Does that mean you can sell to some extent? As I said, the Supreme Court said that subsistence or bare subsistence is not what we are talking about, so that is not an answer to our dilemma. This fourth concept is being introduced in the definition without further definition. I must say, as someone who has worked in the field for years, I have never seen that before. I do not know what that means, really.
The Chair: As an aside, you mentioned the 16 questions. If you could give us a copy of that letter through the clerk, Ms. Gordon, it will form part of the record of these proceedings. We will then be able to append it to the submission that we will make to the Finance Committee, which is dealing with the bill. It is another way to draw attention to the matter.
Senator Mitchell: Perhaps, chair, we could append the letters to the minister.
The Chair: Some of them are already done.
Senator Massicotte: I will address my question to Chief Watson. I am trying to understand the argument. I can appreciate your concern relative to the amendments proposed to the act but I am not an expert, so help me out. I gather that your rights, as an Aboriginal, are defined by treaty rights, and the Constitution, 1982 says that we must respect those rights. Everyone understands that those rights exist. Using your words, it is our obligation to respect those treaty rights. Your rights are independent of our laws under your argument so they are protected.
However, you are saying that the newcomers to the country are passing laws that affect how we will govern those natural resources and the environment and, because we are basically diluting our respect for the environment under our laws, you think that this affects your rights under treaty rights. I know it is very technical but is that your argument? The problem is that you are saying we are diluting our responsibility to the environment so we are affecting your treaty rights. You said that your treaty rights are protected by the Constitution so the changes do not affect directly. Rather, you are worried that we will not do a good job on our side, which will affect your side. Is that what you are saying?
Mr. Watson: Thank you for the question. We are saying that we, First Nations and Canadians, all have a responsibility for the environment, the fisheries and everything that we are talking about. Over the years, governments have not included First Nation peoples in decisions that affect our communities and the environment. For the most part, those decisions have been made for us by governments.
What is important now is the quality of the air, the fish that we eat and the water that we drink — all of that. As stewards of the land, we have to do what we have to do to ensure that those things are protected. I think you are as worried about the quality of water as I am. First Nation peoples feel strongly about the land because if we look after the land, it will look after us. That has been proven for centuries, senator.
I am not sure whether I am answering your question, but we all have a responsibility, regardless of what part of Canada we live in. We have to be more inclusive of First Nation peoples in the communities. Pipelines may run through our First Nation communities but we have no assurances that the environment will be protected before, during and after these pipelines. In Saskatchewan, we see uranium mines that have been left behind. They are open and contaminating the environment. No one is taking responsibility for them. The miners are gone. The uranium is gone. The profits are gone. No one has looked after it. I guess I am saying that we all have an obligation, and we want to ensure that legislation includes us and works with us to ensure that at the end of the day for future generations the water, the fish and the air are the best that they can be because that is our responsibility.
Senator Massicotte: These proposed amendments do not affect you directly because you have your treaty rights protected.
You are not talking as an observer. You are saying that because these laws do not affect you but they affect us, as a partner sharing in the resources you are concerned that we will not act responsibly in doing our share to manage the resources over the long term. Even if they do not affect you directly, you are concerned that we will not be responsible with respect to those resources.
Mr. Watson: First Nation peoples have not been included, and that raises a flag that we have to do what we have to do. We have these discussions but we have not been consulted, really, on the different acts that will be affected. I talk about the Canadian Environmental Assessment Act and the Species at Risk Act and the National Energy Board. I do not know how many times we have had to act on intervener status just to ensure that the environment and everything is looked after. History tells us that we have not been involved, and we are saying that to ensure future generations, we must have involvement and participation. We must have our approval because that is responsibility. As I said, the land has looked after us for centuries and if it will continue to do that, we have to be responsible and in a decision-making process.
Senator Massicotte: Why would we seek your approval when your constitutional position is such that you have your rights and they cannot be affected? Why are you concerned about the proposed amendments? Why would we seek approval when you say that it does not affect you because you have your treaty rights, which we cannot change?
Mr. Watson: At the end of the day, it is all our responsibility. As I mentioned earlier, we shared this land with your ancestors and we share it with you. We have never been included, and we have a responsibility.
If I may, Mr. Chair, I will ask my technical people to help me on this one.
The Chair: Is that okay, senators?
Hon. Senators: Yes.
William David, Policy Analyst, Environmental Stewardship Unit, Assembly of First Nations: I will not add anything but I will reiterate. The regional chief is saying that the resources are the same that First Nations rely on to vindicate and exercise our rights.
I will go to the question of why there is concern about the proposed legislation and its impacts on First Nations. We take the position that First Nations' rights stand apart from the legislative and regulatory regime. The reason for that is that every time the government makes a decision, there is a duty to consult and accommodate. When the government does not have to make a decision, there is no duty to consult and accommodate. That is one example.
These amendments are dramatically reducing the number of decisions the government is making. As a consequence, there will be less dialogue among proponents, government and First Nations.
Keeping in mind that the objective of Bill C-38 is to speed up project approvals — or I should say not to slow down project approvals — and keeping in mind that leaving issues of Aboriginal rights, treaty rights and consultation off the table can push more of these issues into complex constitutional issues, not keeping these issues in the regulatory regime, we fear, threatens to slow down projects much more than the processes that are being streamlined and removed in the act and in the bill itself.
In some ways, these changes, particularly as they relate to First Nations rights, are potentially perverse. Unfortunately, the scope of the changes to the bill are of such magnitude that many First Nations have not had time to deal with the bill comprehensively, aside from specific and particular issues that, if they were to be addressed one by one, could takes weeks, if not months.
That, in essence, I would suggest, is why the regulatory changes in this bill are important. Even though they do not impact the ability of First Nations to exercise constitutional rights, they present a threat to the ability of projects to move forward in a timely way.
Senator Massicotte: I know this argument is complicated. Your position is saying, "Our rights and our obligation to consult are there. The law in this proposed act does not amend or affect those respective rights and obligations. "
One can make the argument that you, like any citizen sharing these rules, have these concerns. I can appreciate that. You, as an Aboriginal, have a particular interest. That gets a bit more complicated, because now you are saying, "Because we are changing the level of consultation within our own population, " using your argument, "it may affect our own implication. " It is gray and it is complicated. That is the only observation I will make, and I think we agree on that.
Senator Lang: I am somewhat confused about what is being presented on the regulatory process brought forward to Parliament for consideration here.
I think we all realize that the regulatory processes, in many cases, have taken an infinite amount of time and, in some cases, so long that projects do not get a formal agreement — such as maybe the Mackenzie pipeline — for nine years for environmental hearings. No one can say that is a reasonable period of time. In all likelihood, they have lost the window of opportunity that would have made it a good project for that part of the country.
We have had presentations saying that right across the country, the provinces and the territories have asked for the regulatory process to be streamlined and to be more disciplined and organized. We also had a presentation here by the federal civil service that clearly enunciated and assured all members of this committee that, first, there will be more money and more resources available for the regulatory process because of what they are doing; it will provide more diligence in examining the environmental questions; and, at the end of the day, probably have more evidence to make a final decision but in a timely manner.
The other aspect is that this is about jobs, which has not been mentioned this morning. I think, Mr. Watson, you would agree that one of the real concerns within the Aboriginal population in this country is the lack of jobs and employment. Unless we have a disciplined and timely process for these major projects, there are no jobs. We can sit around this table and argue about process, about the lawyers, and about various rights. At the end of the day, that young man or woman out there — in this case, maybe Aboriginal — does not have a job. That is, in essence, what the premise of this bill is concerned with.
I do not understand the fact about Aboriginal rights and the legal discussion that you and Senator Massicotte were involved in. If you look at section 5(1), it goes further to ensure that the duty of the Crown to consult with Aboriginal people is enshrined in this legislation. This is a further enhancement, I would say, of our obligation and commitment to the First Nations of this country where these particular projects in a regional sense are being examined. We have to consider their rights and responsibilities and how it affects them, and this legislation clearly outlines that.
I do not understand why you would oppose a section that clearly says Parliament is telling those environmental review processes, "You must consult. Here is how you want to consult. "
Further to that, we had evidence, if I am not mistaken — I am going from memory — that $165 million is committed in that direction for the Aboriginal people in respect to these types of hearings.
Can you tell me what you would rather have in legislation than what is already here, to ensure that the Aboriginal people are involved? At the end of the day, hopefully a few projects go ahead in order to meet what we all want to meet, and that is jobs for our people. Perhaps you would comment on section 5(1).
Mr. Watson: Senator Lang, thank you for those comments. No one more than First Nation and Aboriginal people would love to see jobs in our community, senator. We have had 65 years of welfare cheques, and that is poverty in our communities. There is probably no one who would not love to see our children have careers, to be able to provide for our grandchildren. However, in some of our communities we see the effects of things like mercury poisoning, where you cannot work. As important as jobs and careers are, to be able to live in an environment that is clean is paramount. It is the most important thing because that is our home; that is lands reserved for Indians.
Yes, we want careers. We want our kids to work. We want them to have jobs. However, we also realize that our grandchildren will have to inherit the air, the water and everything else in the environment. We are saying, "Absolutely, we want to be like other communities. " We see regions like Alberta, with the oil boom, and potash in Saskatchewan, and that is great. We love to be able to provide for our families. However, at the end of the day we also see the downside of some of our communities with contaminated drinking water, which has led to tremendous health issues that are generational.
At the end of the day, we would love to have jobs, but we also have to be careful of the water we drink and the air we breathe. It is that combination that worries us, because some of our communities are contaminated and it is very unhealthy for all concerned. I guess that is the best way I could answer you.
Senator Johnson: I certainly empathize with what you are saying, Chief Watson. I come from Manitoba. I grew up on Lake Winnipeg, where all the Icelandic fishers fished with the Aboriginals, and still do. There is the mercury and all the issues we have on that lake.
Minister Kent has been before our committee and has reassured us many that the increase in consultations with First Nations will take place through the change process, that an additional $1.5 million in funding will be provided for that, and that streamlining the laws will not endanger fish habitat. Have you spoken with him or talked to them about that? Is it of any comfort to you? Also, with this increase in funding, during the process you will be consulted and engaged. Could you comment on that?
Mr. Watson: Thank you, senator, for those comments. I have not had those discussions with our First Nation regional leaders in Manitoba. I am not sure what level of consultation they have had with their members of Parliament.
At the end of the day, senator, all we are asking for is to be part of those discussions. My earlier comments were that we have always been excluded from that.
Senator Johnson: You have not spoken with him?
Mr. Watson: No.
Senator Johnson: I am not even talking about Manitoba necessarily; I am talking about you, too. The key issue being that he will consult along the way, during the implementation of this process. Does that give you any comfort in terms of how you feel about the changes?
Mr. Watson: I understand that the Assembly of First Nations may have had very brief and minimal discussions. I think what we would like to do is have more of those discussions at greater length so we are able to address the concerns we have.
I do not think we have had that opportunity as of yet. We would look forward to it and to our full participation. We would love the opportunity to meet the minister and be able to bring forward our concerns.
Mr. David: To be as quick as I can with it, the additional $1.5 for consultation for First Nations communities is welcome, as is the next section, 5(1)(c), although I note it is similar to what was in section 5(1) of the old act. The fact that it is targeted towards Aboriginal peoples is welcome.
However, there has not been a lot of engagement with First Nations. This is not this government or the previous government. It is a long-standing issue, particularly with respect to broad policy changes under the Environmental Assessment Act and implementation under it.
I believe First Nations were the only major civil society group that was not consulted, engaged, during the seven- year review process for the CEAA. We did provide specific points on what we would like to see in the CEAA to the parliamentary standing committee. It was adopted in the report. Regrettably those comments and suggestions were not incorporated into the text of Bill C-38.
While we are hopeful that Minister Kent is coming in good faith, our past experience with this government, and governments prior, leaves us slightly skeptical, particularly when no First Nations have been really consulted on the text of Bill C-38. There is hope there, but there is also, I would say, a fair degree of skepticism. To be clear, there really has not been in-depth engagement on this act or on the proposed regulations already being developed under this act with respect to First Nations.
Senator Johnson: Your leader Shawn Atleo has issued many statements on this, but one of the things he says is that the non-recognition of treaty rights is a deep concern. Would you help me with that? I do not understand exactly which treaty right will not be recognized on this.
Mr. Watson: On that, senator, and I think I have made this statement before, the Government of Canada has been very paternalistic to our people. There have been decisions made, and I will not go into them, but things like the residential school, that have had a generational impact on our people. We have always had the ability to speak for ourselves but we have never been given that opportunity.
I think today the First Nation leaders across Canada are saying that it is time Canada listened to us, worked with us, so we can develop our communities and our people, like any other constituency or region here in Canada.
I think that is what is referred to as our inclusion. For too long we have been excluded and, as Chief Paul said, we have the ability to make those decisions for ourselves as any other people do. I think we are talking about just being included in decisions that affect our lives and affect the environment so we have the ability to contribute also.
Senator Johnson: I understand. I have worked on this issue, as I was on the Aboriginal Affairs Committee for many years. I know exactly what you are saying in this respect.
He did say that changes in regulatory regime, the efforts to streamline, would overstep your rights. I do not know if that is what the act is intended to do. Are you feeling again, as you just said, that this continues and continues and there is never enough consultation?
Mr. Watson: Yes, I think history tells us, senator, that we have never been consulted. It has just been, "We will do what is good for the Indians. " We are always skeptical because history tells us that we have never been involved in the decision making that affects the lives of our people.
Senator Johnson: As my friend Senator Lang said, it does come down to also wanting jobs for our young people, wherever we live.
Do you have anything to add to that from your part of the country, in terms of what we are discussing right now? After all, we are all singing from the same hymn book in terms of what we want to achieve for all our people in terms of the fishery, and I am concerned about the fisheries and habitat and have been for many years in the Senate. We are trying to do what is best; this government is trying to do a good job on this.
Help us more. Give me more about that from your side of it. We are not trying to be all negative on everything. It is trying to improve things: regulatory processes and the environment for job creation.
Mr. Paul: We are of the same mind as the regional chief here. Like everyone else, jobs are good, and that is something that a lot of our people do not have.
Our paramount concern is that we leave this place to our children better than how we found it. This is a common thought across the country, at least with our people.
You cannot eat minerals. You cannot eat oil. It is important in our lives and we can take advantage of that, but always keep in mind the environment, the people who live in it and the people who were here for thousands of years. I believe we did a good job of keeping the environment here pretty good. Because of our relationship — we have a constitutional relationship — it is different from that with other Canadians.
In my mind, as I grew up, and I still feel the same way, I am Mi'kmaq first. I follow their laws and their traditions and then apply what is out there. If it makes sense to us we certainly would participate and take part in it and help make that happen.
For example, we have a process in Nova Scotia that is agreed to by all levels of government. We have written terms of reference as to how we will consult with each other. It is all fine, really, however abiding by it is the issue. We have great difficulty with the governments in abiding by what they have agreed to.
Especially with the department of fisheries and oceans, that is the department we have the most difficulty with. I understand that in the last few months there have been civil servants who have been trained and sensitized to the process of consultation.
I understand that 40 percent of the over 2,000 civil servants trained in this were people from DFO. However, we have these difficulties about an agreed process on how we will consult with each other when our rights are being affected. Even when we feel our rights are being affected it triggers the consultation, from our point of view. Perhaps due to the largess of the government it takes a while for everyone in the whole of government to understand what one part of the federal government is doing, when you have bills like this come out without consideration on what that process is in Indian lands, particularly in Nova Scotia. There are other Mi'kmaq in New Brunswick, P.E.I., Newfoundland, the United States and the lower part of Quebec that have those same rights, but we are the only province that has this process, and it took us over 30 years to achieve it.
Mr. Wildsmith goes back further than this, but I remember back in 1977 we were trying to push for our own process. We would not participate, for instance, in a comprehensive claims process because it involves loan funding.
If you look at the B.C. treaty process, the cost now, after 20 years I believe of discussions, is around $425 million. That is a debt that we wanted to avoid, so we are not in that process. We are in what I just mentioned, the Nova Scotia process. For lack of a better definition, it was initially called an agreement of a different kind. This is a first, and there are many people, as I understand it, watching our process as perhaps an example of how we can deal with each other.
The Chair: We are getting a little short on time. If you can try to keep your answers a bit tighter, that would be good.
Senator Seidman: I will try to be very brief given we are at the end of our time here. I thank you, Chief Watson and Chief Paul, for your presentations.
Specifically, Chief Paul, I would like to know if other First Nations and Aboriginal organizations have signed similar letters with similar analysis to yours regarding the definition issues and if they have joined that and sent letters to the minister.
Mr. Wildsmith: We are not aware of other similar submissions on that point, but it is fair to say other First Nations are in the same situation. There are at least two other court cases that deal with the right to fish for a moderate livelihood. One is the Gladstone case involving one community in British Columbia, and the other happens to be National Chief Atleo's community, the Ahousaht case. In discussions prior to today, I wondered why he had not mentioned that when he appeared. It is simply because, as I understand, his national role requires him to restrict to some other issues. However, for his community, the same issue that we are bringing forward I think applies equally.
Senator Seidman: Other First Nations have similar issues with the definition as you put it forward?
Mr. Wildsmith: Yes, and perhaps the AFN representatives can speak more directly to that.
Mr. Watson: As we stated earlier, I believe we have 630 some First Nations in all of Canada, and we bring to light again that a lot of things have been done for us without our inclusion. I cannot tell you exactly what communities, what their feelings are because, as you can appreciate, they are their own government and make their own decisions on issues that affect their lives.
Again, I wish I could give you a more specific answer on that, but unfortunately I cannot at this time.
Senator Seidman: I appreciate that. I would just like to know if you are specifically aware of any First Nations or Aboriginal organizations who have submitted similar letters with a similar problem with the definition as you put it forward. That was a specific question. I guess you have answered that you do not really know, other than the two cases you know of that are pending.
Mr. Wildsmith: One case is pending; the other was decided a long time ago.
Senator Seidman: Thank you. I appreciate that.
Will the new environmental assessment rules reduce the number of federal agencies that you have to deal with and, as a result, better coordinate consultation with the departments directly? In a sense, there is some positive aspect to this.
Mr. Watson: Thank you for those comments. You are absolutely right. Consultation is so important. It has never happened over the years. We hoped that it would. However, whichever way would be most effective to have our inclusion is what we are looking at. If one way is to have fewer departments, less bureaucracy, less red tape, absolutely, that is a positive. That is good. However, at the end of the day, it must have our inclusion and participation. We would love to do that because I think we are all after the same thing.
Senator Sibbeston: I was going to respond to Mr. Wildsmith who said he was not familiar with the word "subsistence. " I can tell you it is not a very good word. It does not add much to the definition. It is not expansive; it is more restrictive.
In the Northwest Territories, where I come from, I am familiar with the word because the Northwest Territories Act, which gives powers to the government in the north to pass laws regarding wildlife and so forth, is there, and there is an overriding clause that says nothing can take away an Aboriginal person's right to hunt and fish for subsistence. That means that if you are in the bush and you are starving and you see a rabbit, then you are able to take that rabbit. Similarly, in your case, standing by the ocean, if you are near death, as it were, and starving, you can take a fish and eat it, but it is a very restrictive and very minimal kind of right. You cannot thrive on that or catch a whole bunch of fish and sell them and so forth. It is a very restrictive word. I am surprised it is even added into the definition because it is not a good word; it is very restrictive. I wanted to comment on that. If you are near starvation, you can eat so you can subsist, but you do not get fat on it.
The Chair: Sounds like a good plan. You have no comments, right? He is just preaching to the converted here.
Senator Lang: I know time is moving on here. I just want to pursue the line of questioning I presented a little earlier with Chief Watson, if I could. Mr. David may have a comment.
It concerns me to hear the comments made that there is no method of consultation, we are not involved and have not been involved. To some degree I accept in some cases in various areas of the country that has occurred. However, I think there is an honest effort being made by all sides of Parliament, all political parties, to ensure that First Nations are involved and are an intricate part of the process.
I want to go back to proposed subsection 5(1). I do not understand what your opposition is to 5(1)(c), which I will read out:
For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are . . . . with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on health and socio-economic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes, or any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
There is a section here that ensures Aboriginal people are recognized. Second, the obligation to consult before, during and being part of a decision will be taken in respect to a project in a region of this country. Perhaps you can tell me what is wrong with this section and how you would rewrite it to meet what you have said. I think every effort has been made to meet what you stated to us earlier.
Mr. Watson: I will ask my technical and I can add to Senator Lang's question.
Mr. David: As I said earlier, 5(1)(c) is welcome. Is there grave opposition to it? I have not heard of any yet. Like I said, I believe it is more or less welcome. I think there are potential issues in it, but I think they are frankly very minor compared to issues in other provisions of the act.
To give you an idea, for instance, my interpretation of 5(1)(c)(iii), the current use of lands and resources for traditional purposes, suggests to me any traditional territory covered by a treaty and being used by First Nations, whether on Crown lands or private lands, is covered by that. Meaning any changes to those lands are covered by that. I fail to see how any treaty right would not necessarily come within the scope of that.
Senator Lang: From your perspective and some of the concerns expressed here, this meets that requirement to consult, at least in part.
Mr. David: No, I do not. There is a question on what the legislation says. The interpretation I outlined for you will almost be directly contrary to what the agency, the NEB and virtually every other federal authority will be. That will be a contentious issue when it comes up because not many people have heard about it.
Does the process itself constitute a consultation? I would think not. That is because the Environmental Assessment Act was subject to a seven-year review. AFN was called to testify in the dying days of that review by the standing committee. We appreciated the opportunity to participate. This issue of 5(1) was not raised by AFN nor was it raised with us by the standing committee.
In fact, we raised separate issues related to consultation and appropriate vehicles for incorporating consultation into the Environmental Assessment Act. The reason was because the constitutional duty to consult and accommodate was articulated after the act was last reviewed and those constitutional requirements were never incorporated in the act. They stand only as a matter of policy and arguably are inadequately functioning, hence the reason why there are so many delays on particularly large projects; the policies themselves are arbitrary.
Was there adequate consultation? I would suggest definitely not. Is 5(1)(c) a problem? Maybe not. I think there are larger issues with this act.
Senator Lang: I will not argue with the fact that you did not see this legislation before it was tabled. Quite frankly, no one saw this legislation except for the cabinet because that is our parliamentary process.
I appreciate your comment. You feel this section recognizes the responsibility to the First Nations people in a specific region if an environmental process is brought into play, and they will play an integral part of it. By legislation, they have to play an integral part of it, not unlike the Constitution that you talked about before.
Mr. David: However, I would suggest to you that it will be a contentious interpretation. Only time will tell how that is interpreted.
Senator Lang: The proof is in the pudding, then?
Mr. David: On something like that, definitely.
Senator Wallace: Mr. Wildsmith, I am back to this issue of the right of Aboriginals to fish for moderate livelihood. I am wondering if Aboriginals who wish to do that are required to have a licence issued by the minister or the minister's office.
Mr. Wildsmith: The minister takes the view that a licence is required to support all fishing. That would include the livelihood fishery. There has not been a fishery provided through the minister which has been described as a livelihood fishery.
Senator Wallace: The reason I ask that is because, as you clearly stated earlier, your view that the Aboriginal right to fish for a moderate livelihood has been removed by Bill C-38. I suggested to you that it could be covered under the broader right of Bill C-38 that all Canadians have this right to a commercial fishery, which is covered by Bill C-38.
I am just looking at the area in Bill C-38 that defines "commercial " in relation to a fishery; it relates to fish that are harvested under the authority of a licence for the purpose of sale. Why would that not cover a moderate livelihood? A moderate livelihood covers the sale of fish and requires a licence. Why is that not covered under the general provision of Bill C-38?
Mr. Wildsmith: As I was trying to express before, I think the answer is the idea that commercial — in a lay sense, even in that definition — does not take into account the way that "commercial " is articulated in the Fisheries Act and other provisions, and implemented. The commercial fishery is open to all Canadians and is not special to Aboriginal people. It is not based on their rights, but on that licence. It takes all of the rules, terms and conditions that are normally associated with a commercial fisher and drops it in on the Aboriginal Mi'kmaq right holder.
Senator Wallace: You are obviously more familiar with the other provisions of the Fisheries Act than we are. It is not regularly before our committee.
Under Bill C-38, I am looking at the definition of "commercial " and the reference to licence. There is no description of the types of licences. It just refers to a licence issued by the minister. It seems to be as broad as it can be and if it is as broad as it can be, seemingly it would cover a moderate livelihood.
Mr. Wildsmith: Only if other provisions in the Fisheries Act are amended. For example, these licences are issued, as I said before, under Aboriginal Communal Fishing Licences Regulations, but the licences are Aboriginal communal commercial. How do you reconcile those two definitions?
Senator Wallace: In itself, this provision in Bill C-38 may not remove the right — which I thought you were suggesting — of Aboriginals to fish for moderate livelihood, but it may trigger other kinds of consequential amendments that may be triggered elsewhere. I guess that is the point.
Mr. Wildsmith: That could be the case.
The Chair: That brings us to the end of our questioning. To Chief Paul, Chief Watson and the people with you, I hope you have enjoyed the appearance this morning. We certainly have. There has been a good exchange.
To the extent that there have been a number of comments that have not dealt directly with Bill C-38, I understand why you make them. I can only try to reassure you that at least here in the Senate of Canada, we have an Aboriginal Peoples Committee and other committees that are focused on your issues. We are here to consult and be consulted with at any and all times.
I think you would admit, Chief Watson, that we contacted you as a committee to say that if you have stuff you want to talk about, here we are, we are ready; we provided about eight dates. I just want to make that clear. It is not as if we are hiding behind a wall and you are hiding behind another one.
I think this is a great country and I know you do as well. We appreciate how our environment has been preserved up until recent times. We all have a heck of a challenge — in the face of industrial and other kinds of development — to prevent it from deteriorating our great natural habitats, resources and lands.
If you ever want to come to this committee again, let us know through Ms. Gordon. We are here to listen and to interact.
Many thanks for a very constructive morning. We will pass on these comments, especially on the definition issue as well as the 16 questions — if we get the letter — to form part of the record. You have heard what the future Prime Minister is going to do from his end. He has promised me I might even be his principal secretary. You never know.
Senator Mitchell: I will fix your fisheries problems.
The Chair: Do you want to make a closing comment?
Mr. Paul: I still feel that there is still not a clear understanding between "commercial " and "livelihood. " I know it indicates if we have full access then the commercial fishery would serve as the livelihood, but that is not what the case is. As soon as the Marshall decision was decided, all the major fishing companies and conglomerates said, "We have no room. It is fully subscribed. " That is part of the problem and there is that difference.
We not only have a right to have 5, 10 or 30 people fishing in our community; they all have the right. Room must be made for that livelihood fishery.
The Chair: Very good.
(The committee adjourned.)