THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Tuesday, March 29, 2022
The Standing Senate Committee on Fisheries and Oceans met with videoconference this day at 9:02 a.m. [ET] to study the implementation of Indigenous rights-based fisheries across Canada.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Honourable senators, good morning. My name is Fabian Manning. I am a senator for Newfoundland and Labrador, and I have the pleasure to chair this meeting. Today, we are conducting a hybrid meeting of the Standing Senate Committee on Fisheries and Oceans.
I would like to remind senators and witnesses to please keep your microphones muted at all times unless recognized by name by the chair. Should any technical challenges arise, particularly in relation to interpretation, please signal this to the chair or to the clerk, and we will work to resolve your issue. If you experience other technical challenges, please contact the ISD Service Desk with the technical assistance number which has been provided to you. Finally, I would like to remind all participants that Zoom screens should not be copied, recorded or photographed. You may use and share official proceedings posted on the SenVu website for that purpose.
I would like to take a few moments to introduce the members of the committee participating in today’s meeting: our deputy chair, Senator Busson from British Columbia; Senator Ataullahjan from Ontario; Senator Christmas from Nova Scotia; Senator Cordy from Nova Scotia; Senator Cormier from New Brunswick; Senator Francis from Prince Edward Island; Senator Kutcher from Nova Scotia; Senator McPhedran from Manitoba; Senator Quinn from New Brunswick; and Senator Ravalia from Newfoundland and Labrador.
Today, the committee continues its study on Indigenous rights‑based fisheries. We have the pleasure to welcome Chief Allan Polchies Jr. from St. Mary’s First Nation in New Brunswick. We have Chief Wilbert Marshall from Potlotek First Nation in Nova Scotia. And on behalf of the Assembly of Nova Scotia Mi’kmaw Chiefs, Janice Maloney, Executive Director of the Kwilmu’kw Maw-klusuaqn Negotiation Office.
On behalf of the committee, I welcome our witnesses here today. I understand you have some opening remarks. Following the presentations, members of our committee will have questions for you. Chief Polchies, you have the floor, sir.
Mr. Michaud: Mr. Chair, I suggest that we go to Chief Marshall, and a technician will call Chief Polchies to resolve his problem.
The Chair: We will get back to Chief Polchies. Chief Marshall, the floor is yours.
Wilbert Marshall, Chief, Potlotek First Nation: My name is Wilbert Marshall, and I am the Chief of Potlotek, a Mi’kmaq community in Cape Breton. Anyway, what did you want me to say? A little bit about our fishing?
The Chair: Yes, as you understand, we are conducting a study into the Indigenous rights-based fisheries. If you want to make comments on that, opening remarks, we will follow up with questions.
Mr. Marshall: We were one of the first communities to implement moderate livelihood fishing in Nova Scotia. I don’t know how many years we were doing this until we actually started with the help of Kwilmu’kw Maw-klusuaqn, or KMK, and our staff. We’ve been doing this about maybe three years now. We’re looking at implementing the moderate livelihood fisheries and discussing with Fisheries and Oceans Canada, or DFO. Although we have been working with DFO, we continue to struggle to gain access to the waters, but never ceded our resources.
When the settlers arrived back in the day, the Mi’kmaq shared their resources. Now, it is the other way around, and it seems to us the settlers don’t want to share. It is causing a great strife between the non-Indigenous and the communities here, between the First Nations, the surrounding areas and DFO. It is causing havoc in our community.
Hopefully, this spring, we will be starting fishing again on May 1 with 70 traps. It has been a real fight. It was all over the news, the struggle we, Sipekne’katik and other communities face. We are trying to put forward our fisheries with our community members, but there are not a lot of people fishing right now because they’re afraid to go. They have seen what’s been happening: the violence, getting threatened and DFO taking our catches and our gear. Mostly, the guys are on welfare or social security, and they don’t make much money.
Last year, when we started, we only had two weeks left in the fishing season. That didn’t give the guys much time. The way we had it set up, we wanted to fish in the spring and the fall, but DFO didn’t see it that way. They wanted us just to fish in the spring. That’s why we had 70 traps per person. In the spring we fished 70 traps and in the fall we fished 70 traps.
Another big thing that I have seen and my community has seen was the safety with the boats and all that. Our guys don’t have the money to buy these fancy boats. They are usually out on these little skiffs. They thought they were getting a good boat, but a few years ago two boats came back and they actually almost sank. I was there at the wharf when it happened. I don’t know what they hit, but we were buying sump pumps from them and everybody came together.
So we don’t want to see that happen. We want to have the proper gear and proper training. Some guys have the training, but some guys don’t. They want to go fishing, they see other people making a decent living. They are tired of being poor.
I’m trying to help them out with the Kwilmu’kw Maw‑klusuaqn staff. I was also talking to a few senators. Senator Dan Christmas and a few of them came to our community last year, and we had a chance to talk to them. Community members were also there.
The biggest factor is to get out there to start fishing and have our people be proud. This has been going on for many, many years. This is just the first time we ever practised moderate livelihood. Anyway, my guys came to me, and we had some girls and guys all fishing, which makes you proud.
Last year, Bernadette Jordan — I’m still not happy with it — she made a comment that our community had 3,000 traps out there. We didn’t have 3,000 traps. There were certainly other communities out there as well, not just us. We only had 747 traps out there. But still, from this day, people still think we had 3,000 traps out there. And it wasn’t that. We didn’t have 3,000 traps. You can verify that.
We had it all set up in a nice way and making sure everything was done properly and all the protocols were followed. It is just disgusting sometimes when you see people videotaping and threatening you. Nobody wants to get killed over lobster. We don’t. I always tell the guys, you still have a family to go back home to. You get the young guys who say they have no family. I say you have a family, a mom and a dad, uncles, friends and stuff. We all care about you. We are trying to take the high road. I hope you guys see it our way. We’re just trying to make a living. That’s all we’re trying to do. It is safety first with our guys also. That’s the biggest factor, I would say. And making a half-decent living.
We hired a guy here, a liaison worker, who is from my community. He talked about an association up here. Finally, we’re talking now. At least we’re talking. I said this years ago. I said, why can’t they give up some of their traps? The Department of Fisheries and Oceans tried to buy licences here, but nobody would give up their licences. We already told them that nobody is going to give up their licences. The only way it will happen is by trap reduction. They are making a half-decent living. Some of them are making millions of dollars. Especially now, the fishing is good now.
I don’t know what happened the last 10, 15 years. The fishery has changed. I think the lobster fishery is migrating up here more. And they are making a half-decent living compared to Digby, Southwest Nova Biosphere. I guess that’s the gold mine of the lobster industry, but over here is the second-best lobster fishing grounds in Nova Scotia. Some places are better than other ones.
They are having a hard time putting their boats in. The wharf fishing, we can’t dock our boats anywhere safely without them getting vandalized or burnt on us or our guys getting assaulted. It should not be like that. I don’t know what our guys want to do, but I say please, no violence. We have seen enough violence already. Let’s take the high road. They just want to fish. That’s all they want to do.
I think we have only seven people registered right now for fishing. There might be more. I won’t know until they start giving out the tags and stuff. We’ve been talking to DFO and it has been ongoing. We have another meeting with them pretty soon.
Some of the guys are good. They see it our way. I don’t know who it is making decisions, but there is something between the guys on the ground and the guys higher up who are not listening to the guys on the ground. I thought we had a good relationship myself, but when it comes down to going fishing, nothing usually happens. That’s when the violence comes in and the boats start pushing.
People think we want to fish everything, but we’re not like that. We trained some of our guys already. Janice is on and she can speak to some of this later on. But we did train our guys. They have been taking courses. And we have our own scientist here, Shelley Denny, from my community. She lives in Eskasoni, and we have her on our plan as well. Every meeting we have, she is there. So we are not taking this lightly, especially with the stocks and the lobster and everything.
The Chair: Thank you very much. I’m sure some of our senators will have questions for you in a few minutes.
Let’s go back to Chief Polchies and see if he has his technical issues worked out.
Allan Polchies Jr., Chief, St. Mary’s First Nation: Thank you for your patience. Good morning, members of the committee. Thank you for inviting me here today to share our nation’s perspective to inform your study of the implementation of Indigenous rights-based fisheries. My name is Allan Polchies, and I am the Chief of St. Mary’s First Nation. We are members of the Wolastoqey Nation, whose lands and waters transcend the borders of New Brunswick, Quebec and the State of Maine. Our territory includes the beautiful and bountiful river which you may know by its colonial name of the Saint John River. Our waters include the Bay of Fundy and the approach to the Gulf of Maine, where our ancestors fished and cared for from time immemorial.
Our nation is a member of the Wabanaki Confederacy, which includes our sister nations the Mi’kmaq and the Passamaquoddy with whom we have nation-to-nation relationships.
Our ancestors signed the Peace and Friendship Treaties with the Crown. We appreciate that Canada’s Supreme Court has affirmed and validated the 1752 treaty [Technical difficulties] Marshall 1999.
We remind Canada that our treaty relationship began with the Treaty of 1725. Unlike any other treaties and moderate agreements in Canada, our nation-to-nation agreements are with the Crown and occurred before Canada came into confederation.
As you are aware, the Wolastoqey First Nations have constitutionally protected inherent rights under section 35 of the Canadian Constitution to be a self-governed nation, as do all First Nations in Canada. These treaties are nation-to-nation agreements between First Nations and the Crown. They do not cede title of lands or resources. They guarantee that the Wolastoqey have rights to hunt, fish and gather.
Where are we today? A very long way to go in rights implementation.
DFO told the committee of all the progress it has made in rights implementation. However, when you start at zero, any improvement looks good by comparison. The reality is that Canada has made no meaningful progress in the last three decades toward implementation of our rights.
DFO officials cited the amount of money spent since 1999 on programs as evidence of progress and the implementation of our rights. But giving First Nations money so we can buy access to a tiny portion of our own right is not a measure of success. It is a testament to Canada’s failure. Programs such as the Aboriginal Fisheries Strategy, or AFS, and the Atlantic Integrated Commercial Fisheries Initiative, or AICFI, were set up as interim measures to provide some access without prejudice to allow negotiations of the implementation of our rights to occur.
I want to talk to you today about two aspects of Canada’s failure in rights implementation: access for our Aboriginal right to food, social and ceremonial, or FSC, purposes and the Rights Reconciliation Agreements, or RRA, negotiations.
The Supreme Court of Canada ruled in the 1990 Sparrow decision that Aboriginal people in Canada have priority access to food, social and ceremonial fisheries which can only be infringed upon if there is a threat to conservation. This priority is supposed to supercede recreational and commercial fisheries.
Our right to priority access to FSC fisheries as recognized by Canada’s Supreme Court is a right to be enjoyed by every one of our nations’ members, even without the signed AFS agreement with DFO. However, despite the fact that AFS agreements ask us to suspend our right for access that is woefully inadequate, DFO responded to our refusal by stating that they intend to impose every restriction upon us without a signed agreement based on what they believe is our arbitrary share of the fisheries according to past AFS agreements.
The department also says that the fisheries by our members is a threat to conservation. However, DFO continues to fail to provide any substantive proof that our efforts affect the health of the fisheries. It is unacceptable, for example, that a commercial lobster fishery is making record profits and is prioritized over our Aboriginal rights when our members are not even allowed enough access to feed themselves. There are well over 100,000 lobster traps fished by the commercial industry that is managed by DFO in southern New Brunswick. I have formally requested an increase of 20 traps to 500 traps for FSC purposes. Now keep in mind, I have a membership of 2,109 people and you are giving me 20 traps. I have asked for that increase of 500. Well, this is still not even close to fulfilling our community’s food security needs, and DFO has yet to respond to this request.
Beginning five years ago, we entered into a formal rights and reconciliation process that was initiated by DFO. Our hope at that time was that Canada was sincere in its efforts to finally pay respect by recognizing our rights related to fisheries mentioned specifically in our Peace and Friendship Treaties with the Crown and affirmed by the Supreme Court of Canada. However, of that limited mandate given to the DFO, we’ve made little progress — and I say it again, little progress — over the past five years. Our disappointment stems from the fact that the federal fisheries negotiators have tabled an offer that would not or could not change any of the terms. So basically, we’ve been presented with a take-it-or-leave-it deal.
The agreement would require us to suspend our rights for the duration of the deal, which was initially a minimum of 10 years. This was changed to be a minimum of five years late last spring in an effort to entice us. Regardless, we will not sign any agreement with Canada that requires us to suspend our rights.
As for the AFS agreement, we don’t understand why the DFO fisheries agreement requires us to suspend our rights. Additionally, the funds DFO has offered with this proposed agreement are also unacceptable.
The department has stated that any funds under an RRA must go toward buying access from the commercial fisheries licence holder in order to accommodate our rights. The commercial industry is already benefiting from our communal, commercial and FSC fisheries as we do not have any infrastructure, processing capabilities, fishing supply businesses or any other value-added services or supply chain opportunities in the fisheries.
Also, it is not acceptable to us that we are expected to buy access from wealthy commercial fisheries in order to accommodate the FSC or treaty protected rights. The use of any federal funds must be controlled by us so that we can address our needs to build all the components necessary for us to govern our fisheries, which includes infrastructure, economic opportunities, science capacity and governing structure.
We have nowhere near the resources we need for our internal capacity. DFO knows this and uses it as a means to strong-arm us into signing agreements to suspend our rights, which is not right. Despite the claims by DFO officials who testified before this committee that they have a significant, sufficient mandate to negotiate, it is clear DFO’s narrow mandate is completely inadequate to implement and accommodate our rights to governance of our fisheries. Canada has consistently refused to take meaningful measures to implement our rights, which I am happy to say that I am here today to deliver that message. Thank you again for having me.
DFO’s approaches to the livelihood fisheries is a perfect example of how it fails to meet the most basic constitutional requirements in implementing our rights. Former Minister Jordan released a new path statement on March 3, 2021, that dictated DFO’s policy to the livelihood fisheries. The Wolastoqey and other First Nations were informed by a letter, without any consultation, that DFO would impose the DFO’s interpretation of moderate livelihood fisheries on us. In addition to the failure to consult us before this decision, DFO also refused to provide evidence to back up its claim, which is required for conservation purposes, even though we have asked for this evidence numerous times.
Instead of stating and ensuring that our treaty and Aboriginal rights are given priority as our treaties and the court tells Canada to do, Canada repeatedly takes the approach and practice of meeting the needs of non-Indigenous commercial and recreational fisheries first and then attempting to give us what is left over. They then justify their actions with unsupported claims about conservation.
Based on the promise made in our treaties, we should be receiving the full benefits of our fisheries, which is our birthright. Instead, we are prevented by DFO from exercising our right, and the department has thus far refused to engage with us in a meaningful way.
In closing, in keeping with Canada’s commitment to reconciliation and to implementing the United Nations Declaration on the Rights of Indigenous Peoples, we will continue to work with Canada to help identify the appropriate venues where these nation-to-nation discussions can take place in the spirit of peace and friendship.
With that, I say wela’lin and I thank you very much for having me here today. I look forward to any questions.
The Chair: Thank you, chief. I am going to Ms. Maloney. Do you have some opening remarks?
Janice Maloney, Executive Director, Kwilmu’kw Maw-klusuaqn Negotiation Office, Assembly of Nova Scotia Mi’kmaw Chiefs: Weli Eksitpu’k, Mr. Chair, members of the Senate, sagamaws and honourable guests.
My name is Janice Maloney, and I am the Executive Director of Kwilmu’kw Maw-klusuaqn, the negotiation, implementation table, consultation body and secretariat of the Assembly of Nova Scotia Mi’kmaw Chiefs. I have been working with the assembly for over 15 years.
In my time as a member of the rights implementation team, one thing has been clear: regardless of legal precedent, Supreme Court affirmation of the existence of Indigenous rights and a fiduciary responsibility of the Crown, Mi’kmaq people cannot practise their rights-based fisheries without being harassed. We must still fight for the rights of the Mi’kmaq to be prioritized and implemented.
Indigenous people have a special constitutional relationship with the Crown. The Government of Canada has stated its commitment to achieving reconciliation with Indigenous people through a renewed nation-to-nation relationship based on the recognition of rights, respect, cooperation and partnership as the foundation for change.
It has been over 20 years since the Marshall decision, and the DFO mandate has not gone far enough to meet the needs of the Mi’kmaq people to successfully implement a rights-based fishery. DFO’s mandate is not aligned with Canada’s fiduciary duty or the federal commitment to reconciliation. It is limited and only provides access through commercial licenses under the regulations of the Fisheries Act. The act was not made to accommodate a rights-based fishery. The system is broken.
A DFO licence controlled by an act built to govern commercial fisheries does not meet a rights-based fishery. That’s worth repeating. We continue to try to work with DFO to discuss the management of a successful rights-based fishery; however, requiring a commercial licence and not providing close to adequate access to implement rights is unreasonable. The mandate does not provide the foundation necessary for the Crown to meet its special constitutional relationship with Indigenous people.
Since the Marshall decision, the Department of Fisheries and Oceans has continued to impose the Fisheries Act regulations on a rights-based fishery. They have provided a mandate that does not provide access in a “fully subscribed” — and I’m going to put that in quotes — fishery. We have been given, again like Chief Polchies said, a take-it-or-leave-it approach to the rights implementation. That’s not reconciliation. This lack of progress to develop a structure and regulations specific to the rights-based fishery also fails to provide minimal infringement as provided under Sparrow.
The regulations also impose incredible undue hardship on harvesters. For over 20 years since our rights-based fisheries were affirmed by the Supreme Court, DFO has seized the asset of harvesters, given them hefty fines, all without finding solutions to get our harvesters on the waters to exercise their rights without this hardship.
As you know, in the Sparrow decision, the deciding justices stated that the interpretation of Aboriginal rights must also be done in light of the “special relationship” between the federal government and the Aboriginal people, and in recognition of the fiduciary duty which is owed. In that relationship, the government must act as a trustee rather than an adversary towards Aboriginal people.
The Mi’kmaq are incredibly patient. We have been working to implement our self-government in a dual-linked fisheries in a manner that is orderly, safe and, above all, values conservation. It’s time to implement our right that has been affirmed by the Supreme Court of Canada.
Reconciliation, a nation-to-nation approach towards the implementation of our rights, to return the honourable relationship as set out in the treaties. The restrictions under the mandate and the Fisheries Act continue a colonial approach to the implementation of the right to fish. To move forward, we need a new mandate, a mandate that will respect the Mi’kmaq governance, the rights-based fishery including access, seasonality, compliance and science.
Prioritization of the Mi’kmaq rights-based fisheries over a commercial-based fishery, a privilege-based fishery at that.
Reconciliation, constructive action on addressing ongoing legacies of colonialism that have impacted the Mi’kmaq people, and in a more equitable way, an inclusive fishery that recognizes and respects the Indigenous right — the Mi’kmaq right — to fish.
Legislation. Recognition legislation specific to the implementation and management of a rights-based fishery, which is collaborative with the Mi’kmaq and which recognizes Mi’kmaq governance and self-determination.
I want to thank you for inviting us here today. I do want to echo the words of Chief Marshall. We have been working very hard with DFO to implement, through interim approaches, our rights-based fishery; however, there are a number of challenges specific to the mandate and the access. Also, I want to highlight Chief Polchies words because they were very well said.
Thank you so much for the invitation today.
The Chair: Thank you, Ms. Maloney and to our other witnesses.
Senators, we have a long list already generated here. I am going to ask that we ask one question with a follow-up, and we try to keep our questions and answers as tight as possible so we get the opportunity for every senator to have a question. Hopefully, we’ll get to a second round and advise our witnesses of such also.
We have to be cleared up by 11. I’m on Newfoundland and Labrador time. I’ll advise accordingly as we go along here. We are a half hour later here in Newfoundland. We can’t take advantage of that situation here.
Deputy chair, Senator Busson, to start our questions. Senator Busson, the floor is yours.
Senator Busson: I was very taken by the testimony of all our witnesses here this morning, and it’s a pleasure to hear from each of you.
My question is for Chief Polchies. Last week, we had the opportunity and the benefit of testimony from constitutional experts who suggested that the moderate livelihood fishery in your area should be exempt from federal laws and regulations as they pertain to the modern livelihood fishery. In essence, they would exclude treaty-based fisheries from the federal regulatory regime. In essence, nation-to-nation consultations could begin and then a long-term fishery management agreement or agreements could be formed through negotiation.
Do you agree that this is the suggested course of action to perhaps begin implementing your rights-based fishery, Chief Polchies?
Mr. Polchies: Thank you for the question, senator. Certainly, as I stated in my testimony, in reference to the challenges that we do face here in Wolastoqey territory, we need to create a path forward that works best for livelihood fishermen. I’m in an inland community where, as I mentioned, my members and I have to travel outside of our community, outside of our urban setting here in Fredericton — Sitansisk. Of course, to have an agreement in reference to the livelihood, it certainly is something we can consider and definitely look at. Does that answer your question?
Senator Busson: Yes, it does to a point. I have a quick follow-up. You also mentioned — and our other witnesses as well talked about — maybe not the overreach, but certainly one of the other priorities being conservation. Would that suggestion that perhaps a co-management regime might be something that you would consider?
Mr. Polchies: Co-management regime —
Senator Busson: Co-management with DFO or whatever government regime is in place, that you co-manage with a view towards conservation.
Mr. Polchies: Co-management with a view of conservation with DFO.
Of course, as we are stewards to the lands and the waters, that’s been taught to me. We pass it on to generations and respect the gifts of the Creator on conservation. We want to be able to sit with DFO and have these frank conversations. To your question, senator, we want to do a co-governance around this.
Senator Busson: Thank you very much.
Senator Kutcher: Thank you, witnesses, for being here and for sharing your time and knowledge. I’d like to give a special hello to Chief Marshall. It’s nice to see you again, sir.
A number of previous witnesses have raised concerns about systemic racism within DFO and its impact on a just resolution of the implementation of Indigenous rights-based fisheries. DFO officials have told us that they felt they were taking steps to address systemic racism; in particular, they were doing anti-bias training and diversity training.
We know those types of interventions are problematic at best in terms of having robust outcomes, but they do give people a chance to tick a box and say, “I’ve done something.”
Have you seen any change in the community interactions with DFO staff and officials over the last couple of years that would show that the anti-bias and diversity training are having an impact on their interactions with the Indigenous fisheries?
Ms. Maloney: Is that question for Chief Marshall?
Senator Kutcher: Anyone, please.
Mr. Marshall: Ever since the change of minister, it’s started to get a little bit better. You still have the same staff there. They are slowly changing the staff around, but it’s like changing your taxi driver. You might change the company, but you still have the same taxi driver driving it. It doesn’t make a difference. It would be nice if they started changing some people around, but you’ve still got the same mentality.
DFO has the final say, but this is a rights-based fishery. Our rights supercede privileges. In Maine right now, I think when the licence expires, they go back to their version of DFO and they can’t sell them. Over here, we can’t — they are trying to buy licences here, but you can’t, nobody wants to sell them.
But that is a hard question because it’s not like DFO does it, but they still have the same staff, though. They’re not changing around. It’s very seldom you see anybody different. If it’s somebody different, it’s still them in the house; they just changed them around. The only thing that changed was the minister.
I’m still waiting for an apology from the minister. It never happened.
Senator Kutcher: Thank you for that.
Ms. Maloney: I agree with Chief Marshall. I don’t want to focus on the people situation because there are some good people who work for DFO, I’m sure, and they are trying.
If you’re looking at systemic discrimination, it’s not only a people issue. Like Chief Marshall said, it’s the vehicle; it is the act itself and the government. It is how everything works with Indigenous people.
You can absolutely do training with people — and given some of the interactions with the people on the face of it, some of them are trying — but you can’t come to the table with your hands tied, and they are coming to the table with their hands tied. They have a narrow mandate.
That’s where your systemic discrimination comes in. Your systemic discrimination comes in on the mandate and the federal legislation — the DFO legislation; the fisheries legislation — and the regulations that go along with it. That has to be changed.
The training is good. It’s people-based, but like I said, you can’t come to the table without the tools. They are coming to the table without the tools to actually implement the rights-based fishery.
Is that helpful?
The Chair: Yes.
Senator Kutcher: Very much so.
I am wondering if Chief Polchies would like to comment on that.
Mr. Polchies: Yes. Thank you very much.
As you know, systemic racism is happening, unfortunately, across the board. We’re in the 21st century, and I signed up to be a leader to help make changes in my First Nation community to do better for our people here in Wabanaki territory.
As Ms. Maloney mentioned, there are some great people who are in our government bodies that need to do the job that they do. But it all comes down to understanding and educating around the Indigenous rights, especially when it comes to fisheries. For example, in the summer of 2021, I had an individual who was on the waters and they were consistently surrounded by DFO folks who were harassing our fishers. Then, of course, once they get on the boat, they are handcuffing them and putting their hands behind them. The other guys are still taking the boats — the DFO guys. There is a major risk factor here.
It’s one thing to try to implement rules and regulations, but abuses of power and harassment are other issues entirely. This is where it becomes very questionable about who is giving the direction and what paper or policies are being followed.
It needs to be looked at, and it needs to be done in a fair way in a nation-to-nation relationship. Thank you.
The Chair: Thank you, chief. Senator Kutcher, do you have a quick follow-up?
Senator Kutcher: Thank you, chair. I’ll cede my time to our colleagues.
Senator Quinn: Thank you, panellists. This is really interesting commentary.
My question is around co-management, which was raised by Chief Polchies, I think. There are a number of folks who have shared views during these hearings about co-management. What does co-management look like for each of you folks? Is it tied to allowable catch? Is it tied to enforcement? What does it look like for you?
Mr. Polchies: Thank you, Senator Quinn. Are you directing the question to me?
Senator Quinn: Any of the panellists. Please go ahead.
Mr. Polchies: Thank you. Just to understand your question, are you asking what co-management roles look like to our nation? Is that the question?
Senator Quinn: Yes, how would it work? What would it look like to you in practical terms?
Mr. Polchies: First of all, it’s being at the table. As I stated in my opening remarks, we haven’t been at that negotiation table for quite some time. They have been controlled by DFO, and co‑management seems to be a one-way conversation. All the other chiefs and I here in Wabanaki territory are trying to collaborate and come to an agreement, but it has been a one‑sided conversation, Senator Quinn. Thank you.
Senator Quinn: I will just follow up on that, if I may, chief. In the past, witnesses have described co-management with respect to DFO being the sole role they have: to ensure the protection of the Aboriginal fishers. I am wondering if you see it as having a broader meaning than that.
Mr. Polchies: Certainly, we want to be able to broaden that responsibility, but give us the opportunity.
Chief Marshall, Ms. Maloney and I have come to you folks today for you to hear our side. This is collaborating. We’re getting information from one another, so let’s definitely broaden those opportunities and those conversations in order to have meaningful conversations under co-management.
Senator Francis: Weli Eksitpu’k. Good morning, I’m joining you today from my office located in the unceded territory of the Algonquin Anishinaabe people. As a former chief, it’s nice to see some former colleagues. Thank you all for taking the time to join us today.
This question is for all three witnesses. It is my understanding that over the years, DFO negotiators told First Nations that past interim agreements, including RRAs, were without prejudice, meaning that signing on to them would not define how their rights would be practised and limited. However, just a few weeks ago, Senior Assistant Deputy Minister Jean-Guy Forgeron told this committee that these interim agreements have helped to advance the implementation of the treaty right.
In your experience, since Marshall in 1999, has the Department of Fisheries and Oceans made false or misleading representations to First Nations regarding the impact of the interim agreements on the implementation of their treaty rights? If so, could you provide examples?
Ms. Maloney: I’m going to start with the Marshall initiative agreements — that’s where the communal commercial fisheries came from. When the negotiations happened with those, when the community signed the Marshall initiative agreements, the discussion was that it was without prejudice. That is one example. Later on, fast forward 10 or 15 years, we hear at the table that it all counts. It was a response to the implementation of rights. The negotiators at the time were told very clearly that it was without prejudice. It was to provide something. Now that’s communal, commercial access. That’s not a livelihood fishery.
Fast forward to today with respect to the Rights Reconciliation Agreements, we did and do have the DFO negotiators come to the table and say, “Well, here it is, this is all we can do under our existing mandates.” We heard Chief Polchies early on saying that you need to pause your rights because this is an impact. You have to fish only under these agreements. That, in and of itself, is an impact to rights.
Those are a couple of very clear examples where we’re at the negotiation table with good hearts and good minds to look for meaningful implementation for Mi’kmaq and Indigenous people, and you have DFO with their mandates and their legislation to say, “It must fit under, yes it all counts, look at us, we’re doing such a great job to ‘allow you’ to go fish,” when we have a constitutional right that was affirmed by the Supreme Court of Canada.
To your question, absolutely, there have been some mixed messages and some very clear messages that there are impacts. There are definitely impacts in the Marshall agreements, and it’s the same thing with the food, social and ceremonial agreements. I know we’re not talking FSC today, but those must be fished under the agreements as outlined by DFO. That’s not a rights‑based fishery either. That’s an agreement fishery. Thank you for that question.
Mr. Polchies: Thank you for the question, senator. We did not sign any agreements, and when we were required to fish, it was all under DFO rules. We were limited — as Ms. Maloney stated, back in 1999 — as we are today and here we are in 2021 having this conversation. We want to govern ourselves. We want to be able to control how we participate in fisheries because we want to be able to make sure that is a fair process. It’s one thing for us to deal with this at a chief level, but then we have to filter it down within our community members for expectations, ceremonial purposes and livelihood. That’s a challenge all on its own. We experience our own challenges within our own nations, within our own communities and with the respective citizens of our territories.
The Chair: Thank you, Mr. Polchies.
Senator Cormier: Thank you to the witnesses. Thank you for your dedication to your people. I will ask my first question to Ms. Maloney.
While appearing before the committee on March 1, 2022, Fisheries and Oceans Canada officials explained that Fisheries and Oceans Canada sees the implementation of moderate livelihood fisheries as an evergreen process. The department recognizes it has a living treaty with ongoing implementation as communities and needs change over time. My question for you is, do you agree with this vision? If you do, what processes should be put in place to ensure that moderate livelihood fisheries are examined in perpetuity and adjusted as needed?
Ms. Maloney: Thank you for that. Yes, I agree that our treaties are living treaties. Our treaties are sacred. We are not looking at adding any new treaties. We’re not looking at changing them. We are looking at the evergreen implementation. What will be done today will probably be changed as things evolve because our population will change and the resource will change. The commercial fisheries would change and, hopefully, the legislation, regulations and mandates will change. It is definitely an evergreen process.
I do agree that the implementation tables are one place to start, but I also think that you need to make changes with respect to the federal legislation and the regulations to recognize a moderate livelihood. I think that’s absolutely key. We know section 35 gives us that right. We know that our treaties give us that right and section 35 affirms it. We need a federal mechanism that will say, “Yes, you have the right.” DFO needs to come to the table and say, “You have a priority right.” Would that be by constantly bringing back priority access for our people to fish? Yes, absolutely. How do they do that? You heard from the chiefs that a buyback program hasn’t been successful.
Maybe at this point Canada and DFO have to be more aggressive in taking back access for the Mi’kmaq people and Indigenous people. The buyback program is not working. We have over 20,000 Mi’kmaq people here in Nova Scotia, and Chief Marshall talked about four going fishing. We have 70 over here. We have 13 communities, all who want to go fishing. Although we don’t represent all 13, these 13 communities want to go fishing. So there has to be a mechanism developed, and that’s through both the co-governance and co-management — which is different than co-governance. Co-governance is really the way to go, so we have to sit at the table with DFO with an equal voice, nation to nation. Our sagamaws, our chiefs, our leadership has to be there and talk about resource management, conservation, protection, safety and enforcement. All of those things come together, but it comes together with co-governance. However, there is no mechanism.
Yes, it is a living tree and there are mechanisms that need to be developed, whether it’s at negotiation or implementation tables, but the federal government needs to make some very strong and specific changes to allow for that. Thank you for the question. I appreciate it.
Senator Cormier: Thank you so much.
Chief Marshall, if you hear me, in your presentation you spoke about the need for training for the livelihood fishers, so I’m wondering if you can expand on this. What are the impacts of that lack of training, and what do you expect from DFO concerning training?
Mr. Marshall: For the lack of training, it’s the safety training for our guys to be out on a boat. In talking to DFO, we have been trying to collaboratively work with them, but it’s taking so long. Right now, it’s always at the last hour. This should have been done months ago instead of trying to put everything all together at once. It’s the worst thing you could do. The guys have to get their traps ready and get their boats ready, but most of the time it’s just falling on deaf ears. All of a sudden now — like Ms. Maloney was saying — even with practising their right, it was just a lack of regard really. Trying the buyback program, all that stuff, it’s not working.
But the training is the number one thing, I would say, for our guys. You don’t want anyone getting hurt out there, especially with their boats and how they have to be registered. We are new at this game. We do have a commercial side as well, we have been doing it many years with the other side. The community wants to fish, but there are not enough licenses for the community to employ everybody. We have 23 fishermen here, but with the lack of training — we want to be the best. We want our guys to be prepared. I don’t want anybody falling overboard. Even their boats are in disrepair, and they are still taking a chance going out there.
The non-natives have a loan board for their boats and all that. We’re talking, but it takes so long. We have been saying this, we have been repeating ourselves. It’s just like we’re shooting ourselves in the foot right now, and nobody is — hopefully this goes somewhere today.
Senator Cormier: Thank you, Chief Marshall.
Senator Cordy: Thank you very much to our witnesses. It’s great to have the practical, what-is-happening-on-the-ground information for us if we’re going to be making recommendations and a report, so thank you all. You have all been very forthright in explaining what is going on, which is somewhat different than what you read about, so again thank you.
It’s my understand that Canada has a legal obligation to present actual evidence to support limiting the exercising of what is a treaty right. Has the Department of Fisheries and Oceans presented any evidence to justify continuing to impose seasonal limits? In other words, have you personally seen any evidence that the livelihood fisheries present a legitimate conservation or sustainability concern on lobster stocks?
It’s one thing to say it. It’s another thing to have the information — or the evidence, I guess it would be — so I guess that’s open to any of you who would like to comment on that.
Mr. Marshall: What they have been saying to us is that they are afraid of their constituents. Really that’s what it comes down to. We have the science to back our fisheries up at home over here. We have been working closely with Shelley Denny at the Unama’ki Institute of Natural Resources. We have a science link in this. We are all part of the Mi’kma’ki here in Cape Breton and we have our own research, but it really boils down to who gets voted in. That’s what it is. They are scared of their constituents and afraid that they will look bad.
Our people are doing a good job looking at the stocks and everything. We did all that stuff and we continue do so. You have to continue doing the studies, and we’re always doing that. We take count of our lobster. Our guys are well documented. I think we go even a step further than what DFO is also saying.
Senator Francis mentioned something earlier, but I couldn’t unmute myself in time. I’m talking about how DFO has to change their regulations. We had a hard time with our guardians going on their boats to monitor our fishers. DFO has to change their policies so that they would let a guardian aboard their boats to enable co-guardianship. The only thing wrong is we get our money from AFS. DFO holds everything for us. It’s up to them how they change, but it’s always when they want to do something. They hold the golden ticket really. They have all the say, and at the end of the day, you have to rely on DFO. We don’t want to.
Like Chief Polchies was saying, we want our own fishery. We want to govern our own, but we do want to work with DFO. However, it’s always after the fact. After they meet, then they come back to us. We should be in the same room together when we’re talking about rights and stuff. So that’s where it hurts most of the time. It’s always after the fact, and they give us these rules. We said, “No, it doesn’t work that way. We want to be in the same room when you guys are talking.” It’s never like that, though. They always miss the mark on that.
The Chair: Chief Polchies, would you like to make a comment there?
Mr. Polchies: Most definitely. Thank you, senator, for that question. It’s an interesting question. I’m glad you’re asking the question because Indigenous people are stewards, as I mentioned previously, to the lands and to the waters. We talk about conservation. We asked for evidence about conservation with no reply from DFO. A prime example is 100,000 traps versus 20 that my community receives, so where is the balance here and who is providing the evidence?
To your question, we definitely see that there is a conservation in evidence, and we’re not receiving it from DFO. In order to make the management plan work, we need to be able to have that evidence as well, which we’re not receiving.
The Chair: Ms. Maloney, would you like to comment?
Ms. Maloney: I would, thank you. There are two tables, if you recall. There is the implementation table slash negotiation — the implementation of our rights — and there is consultation. With respect to formal consultation with the Crown and DFO who sit at the table — they do bring their science people — the question is asked: Why are you talking about conservation with respect to lobster when all the evidence and everything we hear is that there is no conservation issue on lobster?
As Chief Marshall said, we have Dr. Shelley Denny who does research on this, and she is telling us something completely different. It is, number one, a matter of trust. Do they come to the table with some information? They do come to the table with some science. We are not necessarily feeling we have everything that we need if they are looking to justify a limitation on a rights-based fishery based on conservation.
However, I do want to put this forward to you. Because the commercial fishery is the avenue that has fully subscribed the lobster fisheries, and if they have — whether we agree or not — an issue with respect to lobster fisheries, then it is time to take back some of the access from the commercial fisheries and provide it to the rights-based fisheries. The commercial access is a privilege-based fishery. We are not saying take back all of the fisheries.
One of the things Dr. Denny had mentioned to our group, if you take only — I can’t remember the precise number — five or ten traps from each fisher who is out there, then you would have enough and you could go back and look at co-management and co-governance on the science issue and the conservation issue.
What do you do while you are talking about the justifying with respect to conservation? We have to build that. We have to build that together. But until we build that together, you need to provide access.
The Chair: Thank you, Ms. Maloney.
Senator Cordy: Certainly, what you are saying — as Chief Marshall said — it is not nation to nation if you are getting there after the decisions have all been made, so thank you very much for all of your comments.
It has been 22 years since the Marshall decision, I am from Nova Scotia and I remember the decision well. Yet Indigenous people are still not included in the decision-making, as you have all said throughout your presentations, and so the plan of nation-to-nation discussion is clearly not happening.
I guess I’ve got a couple of questions that I will ask at the same time. How do First Nations come to the table against a bureaucracy that is better funded and so on? How do you plan? You clearly haven’t been invited for nation-to-nation discussions; it is after the fact. How do you deal with what would be a vast bureaucracy? And if Canada is serious, and one has to ask that about recognizing Indigenous rights and fisheries, because it is a right — Ms. Maloney, I think you said it’s a right, not a permission that’s needed — and you spoke about the government coming to the table without the tools. You said some are very well-meaning who come, but they don’t have the tools. So I wonder if you could tell us what tools they should have available for you to be aware of in these discussions.
Ms. Maloney: Thank you for that, Senator Cordy. There are two questions. The first question was how do you come to the table with a mechanism like DFO and Canada that is so large? They’ve been doing science forever. They’ve been doing enforcement forever. They’ve been doing all of those things for a very long time. There is some funding that’s provided under the implementation table. It is completely inadequate, so we do have some interim funding.
I have to say, for the most part, we have a lot of very passionate people. We have passionate community members, and we do use our science organizations here in Nova Scotia — the Unama’ki Institute of Natural Resources and the Mi’kmaw Conservation Group. They come to the table, and there is nothing to support their activity. There are a lot of people on our side who are coming to the table because our rights are — and I’m going to say it this way — innate to our DNA.
When we talk about fisheries, if you talk about Mi’kmaq, if you talk about an Indigenous person in the Atlantic, our rights are just everything to us, so a lot of people come to the table because they are passionate about it.
We don’t have the proper resources to fight. It is like David and Goliath. Here you have the big, old government and big, old DFO, and our communities are doing the best we can in the situation, even to get people out there fishing. We heard Sagamaw Polchies and Sagamaw Marshall both say, “Can people who want to go fishing go out safely?” Do they have the boats? Do they have the safety equipment? Do they have access to funds to actually do that in a manner that would be accessible for everybody? Do they have the ability to get loans? No. Many of them do not. Again, going back to the systemic discrimination, it is throughout the whole process.
The second question is with respect to the tools of Canada. I did like what you said. We are at the table, and we talked at the implementation and the consultation. It is definitely not nation to nation. We have DFO looking for a new mandate to replace their very narrow five-year mandate — this is just as an example — and it is done in secrecy.
DFO hears us at the table, and they run away and say, “Hey, let’s build a mandate.” They make their recommendation, it goes to cabinet and it is all cabinet privacy. I understand that, and that’s fine and dandy, but what goes forward is not done together. We have no idea what’s in that mandate, so that mandate is a part of the tools. If that new mandate that comes out is again increasingly narrow and again does not meet the needs or the parameters that we need to speak about, then we are no further ahead.
I think I was here last year or the year before in the Senate when our issues were still access, seasonality and geographic location of fishers. We still have, a couple of years later, the same issues. If the mandate comes out very narrow in mind, then we will be here again next year and the year after because the people who come to the table won’t have the tools. They will be stuck within the mandate that we, as chiefs — the sagamaws — had no real meaningful government-to-government input in, nation to nation.
Does that answer your question? Thank you.
Senator Cordy: Yes. Thank you.
Senator Christmas: Great to see you again, Chief Marshall. Ms. Maloney, always great to see you anywhere. I would like to ask my question to Chief Polchies.
I understand that none of the six Wolastoqey First Nations of New Brunswick have signed any agreement with DFO when it comes to a moderate livelihood fishery. This is my understanding, and correct me any time it doesn’t ring right, but it seems that the implementation of moderate livelihood fishing rights depends upon the sale of commercial licences by non‑Indigenous fishers. So if a non-Indigenous fisher does not want to sell their licence, then we, as Indigenous people, can’t implement the right. I’ll just park that one.
You had mentioned that in your so-called “negotiations” — and I will put that in quotes — that DFO offered you an agreement to provide you dollars so DFO can buyback commercial licences from non-Indigenous fishers. It strikes me that the so-called negotiations, as you mentioned, are very one‑sided; that they are meant to benefit non-Indigenous fishers first and foremost before Indigenous people can even begin to implement their constitutionally-based and court-confirmed rights.
Chief Polchies, what I just outlined, is that how you see things, or am I being too skeptical?
Mr. Polchies: Thank you for the question, Senator Christmas, and always nice to see you as well.
To your question, with respect to the six Wolastoqey communities here in our Wolastoqey Nation, the negotiations have come to a halt. There have been many times that we’ve been at the table and the negotiator that was representing DFO was not hearing the voices of the chiefs.
I was elected in 2018 and, therefore, these conversations and negotiations were happening prior to me, and here it is now, 2022. As I stated in my opening comments, we are always challenged by DFO’s strategy, if you will.
To your question, to give us some dollars and then go out and buy the non-Indigenous licence so we can go out and fish ourselves. The way I look at it, we would be given some dollars to purchase non-Indigenous licences. Therefore, we are taking government money and we are contributing to the pocketbooks of non-Indigenous people. Then, of course, we struggle with the fact that there are only so many licences that we have in our respective communities.
Does that answer your question?
Senator Christmas: Yes. Thank you very much, chief.
I would like to direct my next question to Ms. Maloney, and if Chief Marshall wants to jump in, by all means.
I understand, Ms. Maloney, that none of the 13 First Nations in Nova Scotia have signed a Rights Reconciliation Agreement on the moderate livelihood fishery.
In your opening remarks, you outlined two distinct approaches. The current approach is that DFO simply imposes the Fisheries Act, its fisheries regulations and its policy mandates, and that’s one approach. That results in long delays and little to no access. You have to do a buyback. Today, there is still a lot of uncertainty in the East Coast.
What I’m hearing you say, Ms. Maloney, is that we need a new approach. I am hearing you say — and this is the first time I’ve heard it said — that there is a need for new legislation, a new mandate. That new mandate and new approach would be one based on governance, not based on DFO imposing its colonial approach and dictating, approving and okaying. It is like the old days of the Indian agents.
Why do you believe, Ms. Maloney, that the governance approach is the best way to solve the moderate livelihood fishery on the East Coast?
Ms. Maloney: Thank you for the question. With respect to a different approach, we have been trying a very long time with the old approach. It hasn’t been working. Like I said earlier, the system is broken.
With respect to the mandate, the existing mandate is too narrow. To follow up on your last question, there are dollars attached and then once the communities sign it off, they have to buy new access. We’re talking about a rights-based fishery. We’re not talking about a commercial fishery.
That approach is to go into the Indigenous and Mi’kmaq communities and say, “You need to find your own right to access. Here it is. Go buy it.”
Because it has happened in the past, experience tells us that if we are going to go out and buy new access, the price is going to go up substantially. So that doesn’t work. Giving us dollars and throwing them at us to find our own approach doesn’t work.
With respect to governance, it is clearly a nation-to-nation discussion. Our communities, our sagamaws, our chiefs and councils, our community members, we know how to govern; we know how to work together. We know that when we bring back our traditional concepts like the Netukulimk fisheries — that means we only fish what we need — we fish together, and we fish with conservation and the health of the resource in mind. There are a lot of different aspects, components and characteristics to that. It is based on the values and principles of Indigenous communities. Clearly, that is missing.
Our governance structure, our Mi’kmaq structure, needs to come forward nation to nation to develop something, and develop more with respect to — and I said a legislation — a recognition legislation. I don’t think you can make a legislation to say, “Well, you have a constitutional right to . . .”
It is a recognition legislation to say, “Guys, you have a right; yes, you do. You have a right to govern yourselves.” It is not a legislation that says to the Indigenous people, “You have the right.” It is a legislation to say to your mechanism, to the Government of Canada, to DFO, to the commercial fisheries that we are going to work with those communities, with our Indigenous communities, so they can implement their right as designed for our people, for the Indigenous people.
It is a bit of a different approach. It is more of a recognition legislation, telling Canada and DFO that, really, you’ve got to work with Indigenous people. You’ve got to respect and you’ve got to trust that we can do it, absolutely. Because our sagamaws and our grand council have been governing for a very long time. If you look at the Government of Canada, through all the departments, I’m sure you don’t always have it right.
Give us the same respect in doing things the way we need to in order to implement our constitutional rights. The tools and the table have to be changed. There needs to be a new approach. Part of that is through the mandate and part of that is through a recognition legislation, absolutely.
Does that answer your question, senator?
Senator Christmas: Thank you very much, Ms. Maloney. As a quick follow-up, do you envision DFO ever recognizing — or do they have the capability of recognizing — Indigenous governance in the fishery?
Ms. Maloney: I do not believe they do. Everyone who sits at the table comes with a mandate. Under the existing federal Fisheries Act, there’s nothing in there that puts any meaning to — and I don’t want to say a new fishery, but another fishery, a rights-based fishery. It is all a commercial act and it is outlined with respect to the rules as they see them. It works for commercial here and there, and it has changed from time to time. That’s fine. But the actual legislation does not allow for Indigenous fisheries. It wasn’t made for us. It was made and built for commercial fisheries. So trying to put a round peg in a square hole — or vice versa, however you want to put it, whatever works for you — just doesn’t work. They don’t have the tools. They don’t have the legislation that says, “Go and do it.”
Under the mandate for the implementation, if you come to the table with a mandate that says, “Well, yeah, you can go fish, we recognize you have the rights, but we don’t even have any fish for you because it is fully subscribed.” Well, how do you do that now? How do you go to your community members who, like Chief Marshall said, are living in poverty, living off $195 every two weeks? How do you live off $195 of social assistance every two weeks? Young people who can go fishing and have a meaningful lifestyle through fishing are not allowed to go. If they do go, if they’re lucky enough to get traps and a boat — and sometimes the boat is not always in the best shape — it will get seized. They get fines and they get charged. It is throughout the whole system.
Senator Christmas: Thank you, Ms. Maloney.
Senator McPhedran: I want to ask this question of all witnesses. Last week at our committee meeting, all three of our experts — Professors Palmater, MacIntosh and O’Byrne — all spoke to the systemic racism within the RCMP and the DFO. I know we’ve had some reference to it, but I would like to dig a little more deeply on this systemic-racism angle of our understanding and our analysis.
I want to pick up on Ms. Maloney’s earlier point that you can have good, well-intentioned people operating within systemic racism. My question to our witnesses picks up on many of the points we’ve heard already today, but I would like to try to get a little more detail. I am asking you to help us understand: What would it look like?
What would we be seeing in the actual behaviour, the actions taken by staff at DFO and RCMP — basically enforcement officials, if I can put that in a more general way?
How would the behaviour be different? What would you actually be experiencing that would be different and serve as an indicator that systemic racism was actually being reduced?
The Chair: Ms. Maloney, would you like to start?
Ms. Maloney: Sure. I always step back to see if the sagamaws want to answer first, so if they want to add too.
I think with respect to systemic racism — and I do agree with the constitutional experts that you were listening to last week — again, the way I explained it was that the system is broken; it is all through the act itself, the mandate and the tools that are given to the individuals. Sagamaw Polchies and Sagamaw Marshall both talked about training and the like, and that’s all very good and dandy.
When it comes to on the water itself, we’re hearing that — even from some of the enforcement people — the thought right away goes to, “Well, do they have authority to fish?” They are fishing their food, social and ceremonial tags. The thought going forward is a negative thought with respect to the Indigenous fishers that are out there.
So the behavioural change, number one — and I’m always going to contend that it is the system that’s broken. It is the system that systemic discrimination goes through and the people are the result of. Once you change the system, I’m sure behaviours will change.
But you will always have individuals who will harass and bother our communities, all 13 of them. None of them signed agreements. We do have with Sagamaw Marshall’s community, Baddeck, an arrangement for their community fishers to go out there. Even though there’s an arrangement for them to go out there, they are still harassed. They are still being checked more than normal. Their traps are being pulled. Are they marked?
There is increased scrutiny on whether we are doing wrong. There is increased scrutiny on the whole process itself, even through the management plans that are developed by and for the communities. Right? So I think that is a big part when we look at the behavioural change.
If you come to the table with the notion and the approach that they have a right, they know what they are doing and, most of all, respect. I think respect is absolutely key when dealing with people.
If you come up to someone in a very aggravated way, everybody is going to puff right out like blowfishes and then off you go. But if you come to the table, if you come upon boats, if you sit at the table with someone, if you come to the table with, “Okay, we’re going to work together,” that’s when we see that there have been changes. That is the start of changes. But I am always going to go back to the system has to be adjusted.
Thank you for the question.
The Chair: Chief Polchies?
Mr. Polchies: Thank you.
Thank you, senator, for the question, and thank you for taking it a step further to speak on systemic racism.
As we know, these words have certainly been floating around for quite some time now. We as leaders and folks like yourselves — folks in governments; chiefs and sakoms that sit in our respective positions — we have that opportunity.
That’s what we’re doing today. We are exchanging information because, technically, I’m on the front line. You folks are around a Senate table and you look deeper into scenarios and situations that govern Canadians, including the Indigenous people of this great land that we call home. Thank you for wanting to take this a step further.
As an Indigenous leader, as a Wolastoqey chief — sakom — we are on the front lines in our own respective communities, and we see it every day. There are multiple levels of government that we interact with: the municipality, the provincial, the federal and, of course, our own Indigenous governments. There are many different layers and challenges that we see.
I signed up to lead my community to help make change and to help change the path forward for our young people and for our children because it is important that we leave a legacy of understanding and respect in a nation-to-nation relationship, and to understand and hear the voices of our people.
Our ancestors left us many responsibilities. I am honoured to sit in front of the Senate today to share the voices of our people — the voices of our children, for that matter — because we have the ability to make the change.
I represent the children’s voices because they are not at this table. We’ve got to build a path, a good path, moving forward 10, 20, 30, 40, 50, 100 years. As I mentioned in my opening remarks, we’ve been here since time immemorial, and that needs to be respected. How do we move forward?
DFO prevents our folks from moving any step forward. DFO should be protecting our fisheries, not arresting them (because that’s the first mechanism they go to). It is pure harassment.
I had the opportunity last fall to join the National Chief of the Assembly of First Nations, RoseAnne Archibald, in Nova Scotia. We were there to support the livelihood fishermen. There were many of us chiefs in addition to the national chief who climbed aboard one of the fishery boats to see what they do. There were a lot of media around this visit. I was on the boat myself, so I witnessed it. In the distance was a fleet of DFO boats watching as we were taken out.
When the boat returned, the media were there trying to get their story and we were sharing our stories. Of course, the event ended. We all departed. And the national chief, unfortunately, she left her phone behind on the boat.
When the national chief returned to retrieve her phone on the boat, there they were. DFO must have been communicating that the national chief and all the other chiefs had departed and left. They came right in to start arresting our men and women that were on the front lines.
We talk about systemic racism and harassment. We need our fishermen to be protected. We ask that changes be made within the Senate, within policies — to serve our people and respect our Peace and Friendship Treaties.
Wela’lin.
The Chair: Thank you, Chief Polchies.
Chief Marshall, before you go ahead, we are running tight on time and we have a few more senators who want to ask questions on the first round. I just want to advise everybody that we are getting short on time.
Mr. Marshall: The Fisheries Act, the regulation themselves were based on commercial licences and commercial fisheries. It would never apply to rights-based fisheries. So this is a new game. I don’t think they see that. It should be co-developed by our Indigenous communities. This is what I was saying earlier. When they come talk to us, they already made the decision. It’s after the fact. We should be there when they are making these decisions.
We have different chiefs in Nova Scotia, and we have a chief who is designated for fisheries, but the discussion always happens after the fact. It’s because of the way it’s set up, the legislation and all that. The way we see it, we want to be there right in the forefront. It’s not going to work until they have us involved right from the beginning when they start talking about this.
I had a few good friends at DFO, they were so scared to say anything and scared for their jobs. I would never say anything to jeopardize their jobs because they are willing to talk to me freely on the phone. They were so scared. I’m talking like I had a spy in DFO, but I did have two people who work for DFO who would tell me all this stuff. I couldn’t believe it. It’s happening. Their own employees are scared.
I’m thankful to them for giving me the information. They would be wondering, “How does he know this?” I had it first‑hand; they would tell me this. It’s too bad people like that can’t come forward. I didn’t say anything, so I’m glad they still shared that information with me. That’s the hardest thing: to have to close my mouth. I’m just scared they’ll lose their jobs. They probably would have too because they are wondering, “Where does this guy get his information?”
The way it’s set up, it’s not going to work. We have to go right into the Fisheries Act and change things around. We have to be involved. It’s not meant for rights-based fisheries.
The Chair: Thank you. Senator McPhedran, do you have a short follow-up?
Senator McPhedran: I do. Picking up on the previous part of one of the answers, I want to focus on the minister. We have a new minister, Minister Joyce Murray. She received her mandate letter in December, a few months ago, and I have been reading through it this morning. I’m sure you’re familiar with it as well.
My question is this: Do you think the mandate letter for Minister Murray gives her the authority and the purpose to directly address and reduce systemic racism in the way the Fisheries Act and oceans legislation are being applied? It’s really a follow-up to my previous question, but it’s specific to the minister.
Mr. Polchies: Thank you for the question. First of all, we haven’t seen any changes to date. We know it certainly takes time, but with new ministers come new visions, conversations and opportunities. That’s what my understanding is.
I would hope that the minister reads these reports, hears our conversations and understands the grassroots of our people here in Wabanaki territory.
The Wolastoqey have asked for a meeting with the Minister of Fisheries, Oceans and the Canadian Coast Guard. We haven’t met with her yet, but we are hoping to do that shortly. We will certainly get that message across.
We hope, senator, that the minister would have that flexibility, governed by recommendations through our conversations and through the Senate. Wela’lin.
Mr. Marshall: We are always hopeful. The last minister that was there, Bernadette Jordan, we said it’s not going to help because she lives in a fishing community. We knew right off the bat it wouldn’t work, because she was getting pressured. We’re still hopeful the new minister sees things in a different way.
We’re having a meeting with her this year. Our thoughts are, like Chief Polchies said, that we’re always hopeful people. We’re patient, but our patience is starting to run out now. It’s been 22 years and something has to happen. They have to talk to us first, that’s all. We have to be right there.
The Chair: All right. Thank you Chief Marshall and Senator McPhedran.
I jumped the gun a few moments ago in going to a second round. Senator Ravalia had requested an opportunity to ask a question. Once again, to all senators and witnesses, we’re down to less than 15 minutes now. Senator Ravalia, the floor is yours.
Senator Ravalia: Thank you to our witnesses. My question is for Ms. Maloney. While appearing before the committee on March 22, a constitutional expert explained that the justice system was an inadequate dispute resolution tool as it pertains to Indigenous rights-based fishery disagreements. In your view, would the creation of a dispute resolution body be helpful? If so, how would you envision the composition of this body? Where would it ideally be hosted given that we continue to have very acrimonious feelings on both sides? Thank you.
Ms. Maloney: Thank you for that. Dispute resolution could be helpful. When you asked the question, my mind went to two different places. One is with respect to DFO and the sagamaws sitting down and trying to find some areas, as well as with the commercial fisheries. We are all here. No one is going anywhere. We have to figure out a way to continue to operate, share and try the best way we can to meet everyone’s needs.
Dispute resolution is an option, but again, it’s the system. You could sit at a table and if you don’t have the tools with you, if you don’t have the ability to initiate change, then the dispute resolution may not be as successful as you otherwise would hope it to be.
The sagamaws need to sit down with the ministers all across the Atlantic regions individually and in groups because if you go back to the minister’s letter, it does speak about the profound systemic inequities and disparities that remain. The minister has the ability to initiate the change, so the minister needs to sit at the table. The minister needs to be active in hearing first-hand what changes need to be made and to give that a meaningful attempt.
For my second thought with respect to dispute resolution, I want to highlight that we do have our customary law under the Mi’kmaw Legal Support Network that does circles. They already facilitate dispute resolutions and the like for our communities. Maybe, at some point, it would be a great idea to bring to the table to see what common ground can be had. Thank you for the question.
The Chair: Thank you, Ms. Maloney.
The Chair: Second round.
Senator Francis: This question is for anyone. I wanted to briefly share that the previous DFO minister committed to sharing the evidence used by her department to continue to impose seasonal limits with us. It has been more than a year, and we also have not seen that information. The fact is that Canada has never actually attempted to meaningfully negotiate the implementation of the treaty right not only to fish but also to govern the fisheries. Instead, it has continued to justify unilateral infringements within the existing legal and regulatory framework. That is indisputable to those of us who have been at previous negotiation tables.
Could you explain to the committee: How has the failure not only to implement the treaty right but also to impose unilateral limits impacted the health and well-being of your community since 1999?
Has it created even more dependency on the state due to the loss of economic livelihood?
The Chair: Chief Polchies, would you like to start, please?
Mr. Polchies: Thank you for the question, senator. To understand your question, how has the failure of the process of the 1999 Marshall decision affected our community today? Is that your question?
Senator Francis: Yes, since 1999 up to today.
Mr. Polchies: Certainly. It has been 21 or 22 years since 1999, and the Marshall decision was a process that we were hoping back in 1999 could change the whole face of how the fisheries were going to work with Indigenous people here in the Atlantic region.
We are still here in poverty, as Chief Marshall had mentioned, in our communities. We still do not have the right to fish. So how do we change that? We need to change it by making sure we have co-management plans, are at the table with the minister and in a nation-to-nation relationship.
We are still in poverty in our communities, we have folks still struggling. We are trying to set a path forward for our citizens to have the livelihood that they deserve, just like any other folks that live in our country. Wela’lin.
Ms. Maloney: I have a quick note with respect to the economic development of individual Mi’kmaw. Even though it is a communal right, it’s a communal right exercised by people — people who want to go fish to make a livelihood. Right now, we have in our communities homelessness and overcrowding in housing. Where do you live if you don’t have a job and if you’re on social assistance and getting $195 or $197 every two weeks?
If you’re able to fish, you can have a roof over your head. You can have food in your cupboard. You can have an overall life. So that has completely impacted the community members and the community itself, causing more pressures on the band council administration to try to adjust for overcrowding and homelessness and increased depression. If you’re not able to have your own livelihood, people do get depressed. It does lead to the potential misuse of drugs and alcohol. It does lead to suicide.
It’s a sense of pride if you’re able to get up every morning and go to work. You’re able to get through whatever season it is, knowing that you need to go fish to support your own being. You are then a healthy, under-control individual who adds to the community’s well-being.
By taking that ability away from people, it does impact homelessness, suicide, drugs and alcohol and crowding. When you go to the grocery store, you’re getting packaged food. Health concerns around diabetes and heart disease are prevalent in our communities. That definitely has an unreasonable impact within our communities.
Senator Francis: Thank you very much.
Senator Christmas: I would like to direct a question to Chief Polchies.
In your opening remarks, chief, you mentioned that your community did not sign the Aboriginal Fisheries Strategy agreement, which deals with — not with moderate livelihood — food fishery, or what is called FSC — food, social and ceremonial fisheries. As a result, you mentioned in your remarks that DFO had suspended your fishing rights because you did not sign the agreement. Chief, could you explain why you did not sign the AFS agreement, even though it brings dollars and jobs to your community?
Mr. Polchies: Certainly. Thank you, Senator Christmas, for that.
We did not sign because we wanted separate AICFI and AFS agreements. AFS agreements relate to jobs, where AICFI was the commercial side of it. It creates jobs as well, but it also creates revenues. It helps support our social programs within our community. AFS, as I mentioned in my opening comments, was being used where if our guys went out to exercise their inherited treaty rights, it would be used against them. It has been used against them because St. Mary’s did not sign in 2021. Some of our fishermen were on the water and then surrounded by DFO gentlemen who lied to our fishermen and said St. Mary’s did sign. They held up a piece of paper to our fishermen. Our fisherman asked to see it. They said, “No, you don’t have to see it,” and proceeded to do the things that they do.
FSC requires us to suspend our rights. We want to move forward on it, and we want to be able to not only offer the commercial side but also be able to work with the Aboriginal Fisheries Strategy for jobs and opportunity.
Senator Christmas: Thank you, chief.
The Chair: We are winding down and only have a minute or two left. I am not going to start something that we can’t finish here.
On behalf of all committee members, I thank our witnesses for adding to our discussions on our study.
Witnesses, if you believe you may have forgotten to add something, please contact our clerk with any additional information that you feel would assist us in our preparations in presenting the report to the Senate of Canada. A very important part of our report will be recommendations that we will make to the department, minister and government, and if you have any suggestions or recommendations that you feel are important and productive in our study, please pass those along. As a committee, we will decide what recommendations we will put forward in our report. We are open to hearing from you.
Once again, I want to thank you for your time this morning. It has been a great discussion on a very important topic. Certainly, we look forward to continuing our study next week.
To our senators, thank you for your time. Sorry that at times I had to sound a bit pushy. I hate doing that, but we are on a hard stop. Therefore, I am going to stop talking now.
Enjoy the rest of your day. Take care. The meeting is adjourned.
(The committee adjourned.)