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THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS

EVIDENCE

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OTTAWA, Tuesday, March 22, 2022

The Standing Senate Committee on Fisheries and Oceans met with videoconference this day at 9 a.m. [ET] to study the implementation of Indigenous rights‑based fisheries across Canada.

Senator Fabian Manning (Chair) in the chair.

[English]

The Chair: Good morning. My name is Fabian Manning, senator from Newfoundland and Labrador. I have the pleasure to chair this hybrid meeting of the Standing Senate Committee on Fisheries and Oceans.

I would like to remind senators and our witnesses to please keep their 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 the clerk, and we will work to resolve this issue. If you experience other technical challenges, please contact the ISD service desk with the technical assistance number that you have been provided.

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, starting with 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 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 Pamela Palmater, Chair in Indigenous Governance, Ryerson University; Nicole O’Byrne, Associate Professor, University of New Brunswick; and Constance MacIntosh, Professor of Law, Dalhousie University. On behalf of the members of the committee, I thank you for being here today.

I understand you have some opening remarks, which will be followed by questions from committee members. I would like to begin with Professor MacIntosh, please.

Constance MacIntosh, Professor of Law, Dalhousie University, as an individual: Dear committee members, thank you so much for having me today. I’m coming to you from K’jipuktuk in Mi’kma’ki, and I’m going to be limiting my opening comments to the rights of the Mi’kmaq and Maliseet to govern how their treaty rights to fish are exercised and the role of the federal government in treaty fisheries.

By way of background — and I hope this is familiar to you — the Mi’kmaq right to fish and sell their catch was affirmed by the Supreme Court in 1999 in the Marshall decisions; it was recognized as a constitutionally protected right. It’s specifically protected pursuant to the Peace and Friendship Treaties of 1752, 1760 and 1761 that promised Mi’kmaq people the right to harvest and to trade or to sell their fish.

That means — and this is my first point — that the only role that the federal government must play in the Mi’kmaq treaty fisheries is protecting the fishers when they exercise their right to harvest and to trade the fish. They must assure that the right can be meaningfully exercised.

This fishing right is a commercial one, and the Supreme Court of Canada described it as limited by it being intended to support a “moderate livelihood.” What does that mean? The courts tell us the meaning of “moderate livelihood” changes because all Aboriginal rights change and evolve to stay relevant and meaningful specifically to the rights holders, who are the Mi’kmaq people. So the meaning of the treaty right is determined with reference to how Mi’kmaq people understand it to be relevantly exercised, which is to say in light of their contemporary needs, values and laws.

I can talk about moderate livelihood all day, but I just point out that those values include conservational values inherent to —, the practice of sustainable resource management. With regard to governing, Canadian courts are clear that it is Aboriginal communities and governments who govern how Aboriginal individuals can practise their rights.

That was my first focus.

My second focus is how the Mi’kmaq treaty right intersects with the federal government. I will talk about regulation.

The federal government, according to the Supreme Court, can pass laws that impact upon treaty rights, including commercial treaty rights, but there is a very high threshold for such laws to be constitutional, because section 35 of the Constitution Act places limits on federal powers. For the federal government to lawfully play a role in regulating the Mi’kmaq treaty‑rights fisheries that goes beyond protecting it, they have to pass this two‑step test: First, they have to show that any right‑infringing law has a compelling and substantial objective, and they have identified such objectives as including conservation and resource management. But there needs to be actual evidence to support, for example, the claim that conservation needs are present and actually require federal intervention.

Objectives can also include addressing the participation of non‑Indigenous groups in harvesting a resource.

There is a process, as well, and that is where the federal government has often failed to pass constitutional laws in the past. The process is intended to ensure that any federal action is consistent with the Crown or the government’s fiduciary obligations to the Mi’kmaq people as Aboriginal people. Central to this is the duty to consult; to understand the nature of the treaty right; and that any regime that is crafted needs to respect or accommodate that right, including — and this is where we keep failing in Canada — the right of the Mi’kmaq to govern their own fishery. If the federal government concludes that it must pass laws that impinge upon the exercise of those treaty rights, those laws can’t overreach; they need to be minimally impairing and have a minimal impact. Also, any federal regime must ensure that the Mi’kmaq rights holders have priority access to the resource, for example, after conservation needs are addressed.

The Supreme Court says that this doesn’t mean exclusive access but rather priority access over all other users. Determining what priority means is something that must be determined in direct consult consultation with Mi’kmaq people. No one else can dictate what priority access means to them.

When the Supreme Court evaluated the federal fishing regulations in the 1999 Marshall decision, the federal regulations failed absolutely to pass these tests. The current federal regime — to my knowledge, the laws weren’t changed after Marshall, so if they were challenged again today, I think they would be found unlawful.

Since 1999, there have been a number of short‑term federal initiatives to fund and grant licences. I’m happy to go into those in the question period. I will tell you that it is my opinion that none of them respect Mi’kmaq governance rights. All we have are short‑term harvesting agreements. We can talk about it, if you’d like.

To pull it back together, my points are as follows: The Mi’kmaq people have a treaty right to fish for a moderate livelihood where that right is regulated by Mi’kmaq governments according to Mi’kmaq laws, values and knowledge; the nature of that right in terms of how the fishery can be regulated needs to change to be relevant and meaningful to Mi’kmaq people; and the only role that the federal government must play in this treaty fishery is protecting the treaty right to ensure the liberty to fish and sell according to the treaties. Additionally, if the federal government wants to play a role in regulating that moderate livelihood fishery, it must respect the treaty rights of Mi’kmaq people to govern their fisheries, to determine what a right to a moderate livelihood means, ensure priority over other users and mitigate any impacts.

Also, especially in light of Bill C-15, the federal government must respect the United Nations Declaration on the Rights of Indigenous Peoples, which Professor Palmater is an expert on, so I will defer to her on that. Those are my comments.

The Chair: Thank you. Professor Palmater, the floor is yours.

Pamela Palmater, Chair in Indigenous Governance, Ryerson University, as an individual: Thank you. Good morning and thank you for the opportunity [Indigenous language spoken] Pam Palmater. I’m from the sovereign Mi’kmaq nation on unceded Mi’kma’ki Territory and my home community is Ugpi’Ganjig which is Eel River Bar but today I’m coming to you from the sovereign territories of the Mississaugas of Scugog Island.

I’ve been a lawyer for 23 years practising in Indigenous law, 10 of those with Justice Canada. I have my doctorate in law and Indigenous law, and I practise in international human rights.

I’m here to speak specifically to the self‑determining powers, jurisdiction, and inherent rights of First Nations, but particularly the Mi’kmaq people to govern, protect and benefit from our fisheries, a little bit different than a rights‑based fishery.

Ever since section 35 was enacted in the Constitution Act, both federal and provincial governments have engaged in a slow and painful war of attrition against First Nations, and particularly Mi’kmaq, in regard to those powers and jurisdiction. While section 35 was intended to act as a form of protection for our rights, governments have fought us every step of the way. Instead of giving our right the constitutional priority they deserve, section 35 has been used to justify substantive infringements of our rights, whittling them down to mere programs or initiatives. It has essentially been weaponized against us, and quite literally; RCMP, DFO, Coast Guard coming to our territories armed with weapons to protect the non‑constitutionally protected activities of industry.

We know we don’t have any access to real justice because every commission inquiry and investigation that has ever been done about the justice system shows it is racially biased and discriminatory to Indigenous peoples, and even injunctions are stacked against us.

It is because of this that we advocated for UNDRIP, the United Nations Declaration of the Rights of Indigenous Peoples, to specifically be implemented here in Canada. Now, because of Bill C-15, it has been recognized and affirmed that it has applications in Canadian law. That changes everything. UNDRIP represents a minimum standard for the survival, dignity and well‑being of Indigenous peoples, and it is important to note that it protects our inherent laws, powers, jurisdiction and governing rights in relation to the fisheries. That includes self‑determination, autonomy, the right to be decision makers, not stakeholders in all matters affecting our fisheries that we are entitled to free, prior and informed consent before any decisions are made. So we’re away from consultation and accommodation, it requires our consent and that includes lands, waters and coastal seas. That is very relevant to the Mi’kmaq.

We have the right to control and use those resources and govern them as we choose, and it includes the conservation and protection of those resources. We have the right to have our treaties enforced. So that changes everything, especially in regard to fisheries. This is despite what Justice Canada has said about UNDRIP not having any immediate impact on operations, policies and laws in relations to fisheries. It absolutely has to because this goes hand in hand with the finding of the National Inquiry into Missing and Murdered Indigenous Women and Girls, about Canada’s engagement in historic and ongoing genocide that is a direct result of Canada’s laws, policies, and processes.

UNDRIP is meant to address those ongoing breaches. That means all of Canada’s laws, policies, and practices have to change, but especially what the courts have done in respect to section 35. Arguably, because of UNDRIP, these previous court cases, which have limited Indigenous rights inappropriately, will have to be reconsidered.

For Mi’kmaq this is an urgent issue. You saw not too long ago the violence, racism, hatred, intimidation, physical threats and destruction of property by both state and non‑state actors without any interference or protection from the government. It was so bad that we had to seek the United Nations intervention, through the Committee on the Elimination of Racial Discrimination, or CERD, through their early warning and urgent action process. We documented and provided evidence of all these massive breaches of threats to our safety and rights to governing power.

The UN CERD called on Canada to address the ongoing violence and discrimination against us, so we don’t lose any lives, to investigate why officials don’t actively protect our rights, and most importantly, to respect and protect Mi’kmaq laws and rights and repeal federal and provincial laws and policies that limit those rights.

I recommend that Canada do just that. My sole recommendation is that Canada engage in a widespread review of its laws, policies, and practices in relation to fisheries, and that includes law enforcement and surveillance, in partnership with First Nations with representatives of our choosing at the local level, the rights holders. We want not just to access fisheries, but the governing powers over that. Thank you.

The Chair: Thank you. I hear great passion in your voices.

Nicole O’Byrne, Associate Professor, University of New Brunswick, as an individual: Thanks for the opportunity. I have the advantage here because I have admired Professor MacIntosh and Professor Palmater’s work for years now. They might not even know who I am. I’m a constitutional historian. I’ve been at the Faculty of Law at the University of New Brunswick since 2009 where I teach Indigenous and non‑Indigenous relations.

I was in law school when Marshall came out in the fall of 1999. I had the pleasure of being taught by a fellow named James Youngblood Henderson. I was in his office. I said that I’m non‑Indigenous and none of this makes sense. I don’t know what to do about it. He told me to study the decision makers. So for the last 20‑odd years, that’s what I’ve been doing.

In a few minutes here, I’ll try to talk a little bit about where we come from and find ourselves at and hopefully give us a little direction how we can go forward in the future by learning from the past.

My masters and PhD are in natural resources; specifically the Natural Resources Transfer Acts, 1930, which is also known as the Constitution Act, 1930. I’ll try to convince you that is relevant.

The Macdonald Report that came out in 2020 has a lot of recommendations going forward and is fairly recent. It’s not that we don’t know what the issues are, it’s that we lack the political will to take on the risk to really move forward.

Let’s go back in time. The Constitution Act, 1867 was innovative. It brought together English- and French‑speaking people in a new constitutional arrangement that shared sovereignty, jurisdiction and decision‑making power in a way that we could build a nation. Prior to that, sovereignty was not divisible.

We kind of forget what a radical experiment that was in 1867, but, of course, people were left out of that social contract and that constitutional conversation. First Nations people were considered objects of jurisdiction under 91.24 of the Constitution Act, 1867. That’s a real problem.

There was also another omission. The territories were not provinces in 1867. Alberta, Saskatchewan and Manitoba joined afterwards, but they did not join in as equal partners to Confederation. They did not have control over their natural resources or public domain lands. That was retained in Ottawa so they could coordinate the homestead, immigration and railway policies that benefited the country as a whole. That’s charitable. I’m from Western Canada.

So what happens? Louis Riel is leader of the provisional government in Red River Settlement, and he says — and all western politicians afterwards make the same argument — that self‑government means control over the natural resources in public domain land so you can take the taxation and revenue generated from the public domain to implement public policy that reflects the cultural‑linguistic interests of the people that are being governed in that territory. That’s the essence of self‑government.

For about 60 years, politicians of every political stripe in the prairie provinces went to Ottawa and said that they were not equal to the other provinces in Confederation. By 1930, former Prime Minister Mackenzie King said, “Alright, the conditions are here, and we will transfer the resource over.” About 10 years earlier, former Prime Minister Meighen had said this:

It’s like unscrambling a scrambled egg. It’s one thing to have control and authority at one level of government. But then after 60 years, trying to move it to another level of government is like unscrambling a scrambled egg.

That’s the situation we’re in now, because, of course, this history matters. I hope I can convince you. It’s an example of shifting governance and constitutional authority.

What is a history matter? We have shifted control and administration of public domain lands. We have shifted the nature of what it means to be self‑governing in this country in the past. What’s the key issue we’re facing now? The key issue being put forward in the Constitution Act 1982, and the challenge that’s being put forward, is that we need to recognize and affirm Aboriginal and treaty rights but also the essence of self‑government that comes with that recognition. It’s not enough to just say these things exist and that we’re resurrecting the history. Because they’re part of the Constitution, they need to have meaning, they need to be implemented and they need to be actualized.

The challenge we have is to move from the division of two orders of government — federal and provincial — to federal, provincial and, of course, Indigenous.

Now, Indigenous people were ignored in 1867 except as objects of federal authority, but our social contract as a nation needs to recognize and include Indigenous self‑governance in a meaningful way. Just as we changed the constitution in 1930 to bring in meaningful self‑government for the prairie provinces, arguably we need to do that as well for Indigenous self‑government.

There are a number of challenges, as we all know. One, litigation has its limits. The Marshall decision came out in 1999, but what does it mean? As Professor MacIntosh has put forward, these rights evolve in time. The court is not the institution that’s well situated to oversee these kinds of issues because we’re actually dealing with government. Then you get to the federal and the provincial governments, which have shown themselves to be very politically risk‑averse to taking on these kinds of issues because they’re so difficult and things can go sideways. There can be missteps and governments don’t want to own that. We need to figure out a way to devolve control and move from two orders to three orders that reflects the historical reality that Canada is not just based on English- and French‑speaking people but English, French and Indigenous. That is the history that we are now learning, bringing in and manifesting in a meaningful way.

We have further challenges. Non‑Indigenous people, which is generally whom I spend my time interacting with on these issues, don’t know that they’re treaty people and beneficiaries of those treaty relationships and promises made so long ago. That’s a problem: the knowledgeability of non‑Indigenous people. That often leads to an understanding by non‑Indigenous people that rights such as an Indigenous rights‑based fishery is more of a privilege, social welfare program or an added extra. It is not. This is a rights‑based fishery not a needs‑based fishery. That is a big difference, and people do not understand the essence of what it means to have a rights‑based fishery. So you see frustration and protests, on and on and on.

One other thing: Of course, we see a lack of enforcement for Indigenous rights‑based fishers, leading to a crisis in the rule of law because people do not have confidence that Fisheries and Oceans Canada, or DFO, or the RCMP actually protect their interests. There are many examples of that.

To wrap it up here, what do we need? We need a better venue for dispute resolution between the three orders of government. We can’t just keep going to the courts. They’re not the right institution to oversee these kinds of multilateral governance agreements that we need to manage the resource. We also need proper enforcement. We need education for all users of the resource, primarily the non‑Indigenous users who generally don’t have the background or understanding as to what these constitutional rights mean.

I will end with that and look forward to the Q and A.

The Chair: Thank you, Ms. O’Byrne. Thank you to all our witnesses. I’ve been around the committee for a long time, but there’s no doubt that the amount of passion that has been expressed here this morning from our witnesses is going to make for an interesting Q and A.

Senator Busson: Thank you to all the witnesses. As our chair aptly put it, there’s a lot of passion in the room today. It’s an incredibly important issue that clearly has not been properly addressed in the history of our country, and here we are.

The overviews have been incredibly interesting — the effect of section 35 from Professor Palmater along with, of course, the UNDRIP effects and importance that has happened since UNDRIP has been passed by our government. I was wondering if any of the witnesses have any examples of models of Indigenous rights‑based fisheries, either in Canada or in other parts of the world, that are successful. Whether it’s co‑management or formal agreements with governments, are there any places where an Indigenous culture has worked out a rights‑based fishery? Certainly if it were in Canada, that would be lovely — but anywhere. I would be interested to know that. Does anyone have any insight on that matter?

Ms. Palmater: I’m always very, very hesitant to provide examples of what’s called “best practices” because they’re usually labelled so on behalf of the government. It’s usually a program or initiative enforced by the government and held up as a best practice, and there are different circumstances.

What I will say is that one of the very best practices I have seen from an Indigenous standpoint is what the Mi’kmaq community of Sipekne’katik did. They worked for years with their community. They engaged, researched, did their own science and did collaborative science. They came up with a process, laws and governing practices that met conservation and went beyond that and respected their rights. It was a full engagement of all of their rights. That’s one of the best examples I have ever seen. We’ve seen what happened from it, but I think on a go‑forward basis, that’s exactly the kind of initiative that we need to support Mi’kmaq people and others engaging in their own governance, law making and regulation of the fishery.

Senator Busson: Thank you very much, Professor Palmater. I appreciate that. I’m glad to hear that there are examples that can be used. Maybe you don’t like the term “best practice,” but certainly as an example of a light at the end of the tunnel and possibilities for success because we hear of so many abject failures of trying to implement these rights‑based fisheries.

I don’t have a follow‑up to that. Thank you for your explanation.

Senator Francis: Good morning, everyone. I’m joining you today from my office located in the unceded territory of the Algonquin Anishnaabeg peoples.

This question is for all witnesses. During our previous meeting, Senior Assistant Deputy Minister Jean‑Guy Forgeron said that no legislative or regulatory changes were being considered to implement the treaty right to earn a moderate livelihood through fishing. In fact, he argued that the department already has the legislative and regulatory tools required to advance communal commercial fishing rights across Canada including for moderate livelihood fishing.

In your expert opinion, are there legislative and regulatory amendments still required to implement the treaty right to fish and to earn a moderate livelihood? If so, would co‑management and co‑governance of the fisheries be an option if enough political will could be generated?

Ms. MacIntosh: I can try to jump in here.

The Chair: Go ahead. Everybody will have an opportunity.

Ms. MacIntosh: The current federal legislative regime, in my opinion, is unconstitutional because it was drafted unilaterally by the federal government and with no involvement of the Indigenous peoples who, from the optic of the federal government, it applies to. So they’re defending an unconstitutional regime and saying they don’t need different legal tools. I would respond that the existing legal tools need to be recrafted so as to explicitly not apply to Indigenous peoples is a start. There are a number of regulatory instruments that certainly would help support a moderate livelihood fishery that are not being enforced. That would be, for example, just our basic protective measures, the policing, the complete failure of policing. That hasn’t been acted on. Canada’s not doing so well on policing these days.

So I disagree with what he’s saying. I think the complete failure since 1999 for the federal government to meaningfully engage with Mi’kmaq people on what a treaty‑based fishery means is a good example of why we don’t have enough tools on the table.

I was going to slide into the initiatives, but I can get to those and why they’re inadequate later. But I completely disagree.

Professor Palmater, if you want to follow up there.

Ms. Palmater: I entirely agree, for all of the reasons that Professor MacIntosh said but also because time and time again their laws, policies, practices, regulations and governing structures have been found to violate the constitution, and we haven’t seen a major redrafting of those. We also have to remember that the Mi’kmaq right to fish, like others in the country and different territories, there’s the treaty right, but there’s also the Aboriginal right. There’s also the inherent right, because these are unceded lands, waters and resources which include the fish. UNDRIP speaks specifically to all of our traditional lands, waters and resources and our right to govern that.

The federal government’s role has changed dramatically. It’s literally done a 180. Instead of the federal government engaged in that role for Indigenous peoples, we are now engaged in that role. When and where the federal government can work with us cooperatively, there may be potential for joint governance, but until then the federal government’s only role with regard to Mi’kmaq and other fisheries is in protecting our right to govern our own fisheries, benefit from it, monitor it, research it, surveil it and decide who has access.

Ms. O’Byrne: I jumped up and grabbed a report to get back to the deputy chair’s first question. There was a report in 2010 by the Atlantic Indigenous Economic Development Integrated Research Program, and it was through the Atlantic Policy Congress of First Nations Chiefs Secretariat at Memorial University. They outline in hundreds of pages critical success factors. So they go through a lot of the different fishery models that are happening and are evaluated by interviewing people who are operating them at the ground level. They’ve done extensive interviews and whatnot.

Now, this is a little dated, but it does give you a good sense of what’s going on there.

As Professor Palmater points out, it’s not on the metrics of what DFO considers successful but what members of the community consider to be successful, which is a wide range.

I can send the reference to that to the clerk.

To go back to the quote from the deputy minister of DFO who said we’re fine. Well, I guess I’m sensitive to this because I’ve spent the last 20‑odd years studying this. There was a seismic shift in the Marshall decision. To say they already have the legislative and regulatory regime to handle the seismic shift of Marshall is baffling, to say the least, because they don’t. As has been pointed out by my colleagues, their regulatory regimes are unconstitutional. They’re top‑down. They haven’t consulted.

Furthermore, they haven’t changed in generations. It’s because — and I’ll make a link hopefully to my earlier comments — they have not relinquished or devolved any meaningful share of control over the resource. Self‑government requires more than just a little input or a little consultation, but DFO has retained control over this under the auspices of saying they need to worry about conservation and this and whatever.

As Professor MacIntosh has pointed out, that has to be limited and you have to give Indigenous fishers priority over the right so they play a role in balancing it out or whatnot. But they have not made any meaningful steps, and I don’t think I’m overstating this, since the Marshall decision to really devolve the kind of control and come up with the different kind of shared governance models that we need to actually deal with all the needs and the interests of the users of the resource.

Senator Francis: This question is for Professor Palmater, but I welcome the input of other witnesses as well.

Do all First Nations affected by the Marshall decision have the internal capacity, expertise and resources to negotiate short‑term or long‑term agreements with Fisheries and Oceans Canada?

Ms. Palmater: Thank you for the question. If you’re talking about financial capacity, infrastructure capacity, research reports, legal supports, policy supports to the level that the federal and provincial governments do, of course not. The reason is we’ve been kept out of our own economies like the fishery, for example.

This is something that UNDRIP also speaks to. Not only do we have the right to govern this and enact our own laws and decide what happens and protect our fish and benefit from the fish, but we have the right to the ways and means. Canada as a country, as a state, is legally obligated to provide us whatever ways and means we need to do that. There’s a lot of catching up to do.

So not only should this change all of DFO’s laws and policies, but there should be big chunks of money coming to us to the same level and extent that they pay their own fisheries officers, researchers and legal and everybody else.

Senator McPhedran: I speak to you today from the unceded, unsurrendered territory of the Anishnaabeg Algonquin peoples and the Parliament of Canada is situated on that territory.

Thank you so much, Professors MacIntosh, Palmater and O’Byrne. I not only hear passion; I want to put on the record that I hear evidence‑based, incisive analysis based on extensive research. Thank you very much for bringing your expertise to our committee.

I want to accept the statements that have been made today and the evidence that has been tabled about breaches of existing laws by both federal and provincial governments, and I want to ask my question in the context of Canada adopting the UN Declaration on the Rights of Indigenous Peoples and making it part of our domestic law.

My question is geared not so much to the “what” but to the “how.” Given that the position we’ve heard consistently from each of our experts today is that the existing statutes are not viable, and likely unconstitutional, what is the best legislative means of addressing this? Is it an omnibus bill? That’s a question to all of our experts, please.

Ms. MacIntosh: I can give it a go. I would be hesitant to try to put something into legislation on the spot. I want to take it back to what Professor Palmater referred to, which is the fact that all over Mi’kmaq, starting in particular around 2020, Mi’kmaq communities were so fed up with the lack of meaningful development toward the recognition of what a treaty rights fishery could be.

In 2020, in particular, communities ramped up determining how they would exercise their treaty rights. I had become concerned about any federal legislative initiative that might unduly interfere with what communities are accomplishing on the ground.

I see the immediate federal role, if there’s one thing the feds need to do right now, it is to take action to protect Indigenous fishers as they fish on the water, as they seek to sell, as they seek to govern their own practices. If that requires a change in legislation to make it explicit that the federal government has this role and needs to shoulder it, then so be it.

I can imagine framework legislation. I think we need to have a more explicit mandate identified. Once again, I don’t know if the legislation is the best tool for that, but an explicit mandate and order to proceed in terms of meaningful conversations with the communities here to support the efforts they are making. I’ll stop there.

Ms. Palmater: Omnibus bills — actually, most bills — don’t ever go in our favour. Omnibus bills are probably the worst. We don’t have the pen in terms of drafting legislation. That’s entirely with Justice Canada. Also, it’s not in line with what UNDRIP says.

I agree with Professor MacIntosh. The only role that the federal government has in Mi’kmaq or other fisheries is to protect our rights. On an interim basis, the federal government should and could exempt us from the statutory laws, policies and regulations that are currently on the books; engage and reorient their enforcement officers to protect our rights and to protect us as we govern our rights and to protect us from racism, hate and violence; and at the same time, to engage with us on how we’re going to go forward.

In order to do that, we need the ways and means to ramp up all of our governing structures that have been denied to us by denying our economies, but also there’s the issue of reparations to make. There are generations of loss of past use that haven’t come to us. All of this could support our governance over the fishery, and I think anything less — and we will see a lot less from DFO — is going to be ongoing violations of our human rights and ongoing genocide targeted at destroying our communities and our governing structures. It simply can’t stand, now that Canada has recognized that UNDRIP is applicable in Canadian law.

Ms. O’Byrne: When they had to shift control and authority from Ottawa to the three Prairie provinces, it took three royal commissions, several years, several court cases, to unscramble that scrambled egg I talked about earlier. This is not going to be done by omnibus legislation or the federal government taking the lead.

Because of the particular senator who asked the question, I will indulge a bit more in constitutional history, because she lived it. You will remember Allan Blakeney. He served on RCAP. They were all members of the Royal Commission on Aboriginal Peoples, or RCAP. He resigned from RCAP because it was talking about nation‑to‑nation relationships. This is all very important. RCAP was a significant milestone in the history of this country. However, Mr. Blakeney resigned because he knew that it wasn’t going to lead to the questions we’re talking about here today: how and why? How do we move from one level of control, governance and administration to another? I interviewed him several years ago. He said if we don’t mean it, if we don’t mean self‑government, then why are we talking about it?

We need to talk about this in a new constitutional conversation, a shared governance model. We can’t just keep adding or tinkering with the existing model because of Crown sovereignty and the federal government having such control and authority that this is not an even playing field. We need to knock that down and rearrange the pieces in a meaningful way if we’re going to go forward in a way that lives up to the promise of the treaties, the historical treaties that have been constitutionally recognized.

Then we need to deal with the challenge of UNDRIP, which is essentially saying similar things to what was expressed through the treaty relationships, that this is not just about one dominant power over another, subjects and objects, but everyone involved in the social contract and in the constitutional conversation, to actually deal with the resource issues and share together and share responsibility. The federal government needs to be pushed in that direction. They cannot lead the charge.

Ms. MacIntosh: I don’t think we need to unscramble that omelette. Treaties are law. We already have the law in place. We don’t need a new law. What we need is for the federal government to stop enforcing unconstitutional laws, laws which were already deemed unconstitutional, and we need to start allowing the enforcement of the treaty rights.

I sometimes worry that these conversations can get into the complicated details, and that derails you and it feels like you need to have every part figured out before you can do anything. We already have the biggest piece there, and that is the treaty, which is part of our Constitution.

Senator McPhedran: I would like to ask a supplementary, and I’m going to stay with my theme of the “how.” I appreciate the clarity of the answers around the possibility of an omnibus bill.

Let me ask now each of our experts, please: What’s the best next step for the Fisheries Committee of the Senate to consider recommending, the best next step?

Ms. MacIntosh: I’m not going to say that I know for sure what is the best next step, but I know that one piece of it is ensuring that the federal fisheries legislation complies with UNDRIP. That is what Bill C-15 requires. We already know that the current federal regime is unlawful, and so shifting it to become lawful.

Professor Palmater gave one suggestion for how to approach that, which I’m going to say is one of the easier approaches, namely, explicitly excluding the treaty fisheries from the reach of the federal legislative regime. That’s one piece that I think is in your wheelhouse.

Ms. Palmater: I’m surprised we haven’t done this already, but it’s absolutely critical that the federal government needs to be talking to Mi’kmaq government and other nation‑based governments, with the representatives of our choosing. It is about stopping talking to the Assembly of First Nations, the Native Women’s Association or any other national Aboriginal organization not composed of rights holders. The federal government needs to actually talk to us by representatives of our choosing about how we’re going to go about reviewing all of those laws.

In the interim, we need to exempt from federal legislation the Mi’kmaq fishery, whether it’s inherent‑right fishery, Aboriginal‑right fishery, treaty‑right fishery or any of the other fisheries. If the federal government needs to enact law — although I don’t think they need to — they need to engage in protecting our right to exercise our fishery as we see fit right now. They need to provide the ways and means for us to have more and increased capacity to govern and manage the fishery.

The federal government doesn’t deserve co‑management of the resource. They’ve all but brought many stocks to the brink of extinction, they’ve allowed economic monopolies by non‑native fishermen and they’ve excluded the Mi’kmaq and other First Nations. However, Mi’kmaq and other First Nations have always been very gracious and keep wanting to engage with the federal government.

So they may, at some point, be entitled to joint governance, but they’re not going to do this unless they do all these other things and meet with the Mi’kmaq and other First Nations on a level playing field and not at the barrel of a gun, under threat of litigation, under threat of arrest or threat of exclusion. It simply can’t happen that way.

We need to be empowered first. Our rights have to be recognized and protected, and that’s the most important thing they can do.

Ms. O’Byrne: I’ll dare to jump in here. Because we haven’t seen much movement since 1999 and the Marshall decisions — and the problem goes way back further than those. I’d encourage the Senate to ask for a royal commission where they can actually compel people in, get evidence and start to actually educate the public. Royal commissions are really good at bringing all the interested parties together. They are independent — one step removed — from the government. So I’d encourage you to think about that.

There’s also the public inquiry option.

Now, of course, the federal government doesn’t need to comply. However, in the past, we have seen the Senate, when they did have a royal commission on medicare — the Romanow Commission — and the Senate went ahead with the Kirby Report, a supplementary study with respect to medicare.

So the Senate has a lot of authority and power to compel paper, people and records; subpoena witnesses; and do those kinds of things. Your interest, as far as I can see and as we’re experiencing today, is such an important first step to bring this conversation to the forefront, because we have such an imbalance and an intractable problem here. When Senator Francis quotes from a very high‑level official in the Department of Fisheries and Oceans, I think we’re beyond the point of just talking about this; I think we’re at the point of actually starting to compel more evidence. I also teach courses on evidence and advanced evidence at the law school here. So it is about starting to make some people accountable for why there hasn’t been action.

And that can’t be controlled by the federal government; it needs to be step‑removed from the DFO, the RCMP and CIRNAC, quite frankly.

The Chair: Thank you for that.

[Translation]

Senator Cormier: I’m speaking to you this morning from the unceded territory of the Algonquin Anishinaabe nation. I would like to express my gratitude to the nation for having us here. I want to thank the expert witnesses for their clear and passionate presentations.

My question is for all three of our witnesses, but perhaps more specifically for Nicole O’Byrne, whom I want to thank for her work in bringing the Indigenous and non‑Indigenous communities in New Brunswick together, and for Ms. MacIntosh.

A little over 20 years ago, a major conflict erupted between Mi’kmaq and Acadian fishers in New Brunswick. The crisis, which became known as the Burnt Church crisis, divided the communities in the region for over a year. We still carry the emotional wounds of this difficult conflict. After a mediator was hired, interim and non‑permanent agreements were signed at that time without really, to my knowledge, defining a food fishery.

Ms. MacIntosh, do you consider that this crisis — I imagine that you studied it — was resolved in a way that respects the self‑governance rights of Indigenous peoples, since things seem to be running smoothly now? I’d like you to elaborate on this matter.

Ms. O’Byrne, what lessons can we learn from this incident that took place over 20 years ago? How was this conflict resolved, if it was resolved at all, and how can this guide our current discussions?

[English]

Ms. O’Byrne: Thank you very much for the question. I am not going to embarrass myself with my poor grasp of the French language today. These issues are too serious.

I’ll start with the second question first: What are the lessons from Burnt Church? I have been teaching my students about that for a long time now. There is an NFB documentary called Is the Crown at War with Us? It’s one thing to read the materials; it’s another thing to see the boat from the Department of Fisheries and Oceans ramming an Indigenous boat and people jumping in the water. It’s a miracle that no one died. When my students see that, they start to understand the magnitude of the problem and that we need to talk.

A lot of my students are from francophone communities, grew up in those communities and they do not understand the difference between that rights‑based fishery and the needs‑based fishery, despite the communities having lived side by side and being very integrated. You see a lot of instances of humanity and the human connections getting passed — some of these legal definitions, the fighting, how we deal with what a moderate livelihood is and that kind of thing.

Where we have seen a real failure of leadership here in New Brunswick is the provincial government. They’ve not been helpful or leading a productive conversation, because, of course, they have to be involved in the resource, and navigating and mediating all of the interests of the people who live in these communities. There are some lessons to be learned here. What happened in Nova Scotia last year, of course, happened in New Brunswick 20‑odd years ago, but we’re just a flashpoint from barricades and hard feelings again.

We need some leadership, and we’re not seeing that here in New Brunswick. Of course, the provincial government here is opposing the litigation with respect to the assertion of unextinguished Aboriginal title. Inevitably, a lot of lawyers are going to make a lot of money — perhaps this is a good thing for my students who are looking for jobs — because 10 or 15 years from now, as it winds all the way through the courts, the court is going to say, “Of course there is unextinguished Aboriginal title,” because not one piece of the Peace and Friendship Treaties dealt with the cessation of land. It just didn’t happen.

So these things are inevitable. We need to keep educating people and keep talking to people. And non‑Indigenous people need to really grasp the history and what’s involved in this conversation.

I moved to New Brunswick in 2009, and what I’ve really begun to appreciate is the relationship and the community. People really care about one another here. So if we can get over some of these bumps, people actually do care about this and do have those kinds of relationships here in the Maritimes.

I guess I’m an optimist, but we need to educate people and we need some political leadership here.

The Chair: Do any of the other witnesses wish to comment?

Ms. MacIntosh: Senator Cormier, I loved your question about whether this will be settled by respecting self‑governance. My first response back to that is that it won’t be settled unless self‑governance is respected. That has to take place.

I’m not going to speak to the situation in New Brunswick — I absolutely defer to Professor O’Byrne regarding that situation — but I will say that I feel that a lot of the tension and violence are because of the ongoing uncertainty insofar as the federal government keeps saying that they don’t know what this treaty fishery could be and what the inherent‑rights fishery is — and “maybe those Indigenous peoples are breaking the law” and they’re going to arrest some of them.

So they’re not exactly role modelling a situation which gives the public any confidence that things aren’t complete chaos out there on the waters. The federal government is making things worse on that front.

Within Mi’kmaq, within Nova Scotia in particular, Mi’kmaq communities are not seeking to exclude non‑Indigenous commercial fishers from the resources. Communities, such as Bear River First Nation, they have extensively involved local, non‑Indigenous fishers in developing their own inherent rights or treaty rights‑based fishing plan. So we have these local pockets of community. This perhaps echoes what Professor O’Byrne spoke to. Many people are generous and kind and listening, and those people have been brought along quite well. We need to have a situation where self‑governance rights of the Mi’kmaq people are respected, their right to fish is respected by the government, it is protected if people unlawfully interfere with that, and that will allow them to govern properly.

My suggestion is their governance regimes are going to be inclusive ones where other people are invited in and do not become impoverished. No Mi’kmaq community is going to be out there fishing so many fish that it puts some commercial fishers into a state of poverty.

Ms. Palmater: With respect to the situation in Mi’kma’ki, there was no conflict, none whatsoever. It was one‑sided, racism, hatred, violence, criminality, greed and intimidation that was allowed to happen in full view of our RCMP, DFO and Coast Guard. It was in complete disrespect of our rights. Under no circumstances, whether people agree with our rights or not, do they have the right to engage in that kind of activity, including shooting flares at Mi’kmaq people and shooting guns. People could have been killed. There is zero justification for that. That is a direct result of racism in society, yes, but also the Government of Canada’s absolute failure to be very clear about Mi’kmaq rights to govern and protect and benefit our territory, to educate the public on that, and to provide a very public and powerful show of force to protect our Mi’kmaq right. If that was the case, you wouldn’t be able to see people in Mi’kma’ki still going around threatening Mi’kmaq people, threatening businesses not to do business with us, engaging in all these scenarios.

We’ve been very, very clear. Governance doesn’t mean exclusion, but it does mean governance. A change in governance means a change in laws, a change in processes, a change in how we do things and how we operate. That cannot be led by the federal government who has failed on every single level. Some of the commercial fishers need to step up in this because they know our rights have been upheld in the Supreme Court of Canada and they have said, “We deny treaty rights. We deny it anyway.” That’s a problem in some segments of the commercial fishery.

Senator Cormier: Thank you very much.

Senator Kutcher: A tremendous thank you to the witnesses today. You’ve been exceedingly helpful.

I come, like some of my colleagues, from the unceded Algonquin Anishinaabe territory in Ottawa.

A number of previous witnesses have raised concerns of systemic racism within DFO. Do you agree? If so, what impact do you think this has been having on the challenges of coming to a resolution of the implementation of Indigenous rights‑based fisheries?

Ms. MacIntosh: I will let Professor Palmater start. I’ll be a wing man.

Ms. Palmater: Thanks, Professor MacIntosh.

This is something that I’ve actually done an extensive amount of research on, not only for the national inquiry but other United Nations processes. The extent of systemic racism within all law enforcement agencies — policing, natural resources enforcement, corrections, you name it, we’re not just talking about discriminatory laws and policies. That’s the paper part. We’re talking about systemically and widespread held anti‑First Nation racist and stereotypical views not just on people in Mi’kma’ki but all across the country. These have never been addressed.

How do we know these things exist? Well, we know from national inquiries and public commissions. There’s been a whole host of them, from the Marshall Inquiry, the Ipperwash Inquiry, the Royal Commission on Aboriginal Peoples inquiry. It is so widespread that you can’t even use the few bad apples. It’s more like a few good apples who are at the whims of very systemically racist, hateful and violent people.

We know for the RCMP, who are often involved in our fisheries, a report just came out from a former Supreme Court of Canada justice called Broken Lives, Broken Dreams: The Devastating Effects of Sexual Harassment On Women in the RCMP, which concluded that the RCMP is so racist, misogynistic, homophobic and violent that they cannot fix themselves. They represent a danger to even their own female colleagues. They were shocked by the number of violent rapes of their own female colleagues. Now imagine. They also carry the record for some of the highest rates of RCMP shootings of Indigenous people also in Mi’kma’ki.

So with DFO and how DFO acts — and you see them on social media making racist and terrible comments against Mi’kmaq people denying our rights — how on earth are we supposed to engage if, as a Mi’kmaq nation, we’re not at a much higher level than the federal powers that be in order to enforce all of these laws and governing practices and rights at the bureaucratic or institutional level, because they’re not doing it themselves? We don’t need another public inquiry or royal commission on this. We have more than enough evidence to take action on this, including weeding out the systemically racist and violent and hateful people at the DFO and RCMP and any other law enforcement agency.

Ms. MacIntosh: I don’t think there’s anything really to add to that. Senator Kutcher, the impact of systemic racism in DFO is dire.

Senator Kutcher: DFO officials were asked the same question, and they felt they were taking steps to address systemic racism. In particular, they were doing anti‑bias training and diversity training.

We also know that the research on the impact of these types of interventions is concerning at best. There is not a lot of substantive evidence that it actually makes a difference in changing systemic racism, but it gives the people a chance to do a tick that we’re doing something.

What other things could DFO be doing or what other things could we, as a civil society, be doing on this issue that could maybe more effectively address systemic racism than anti‑bias training?

Ms. Palmater: I think that’s my favourite question because the least effective thing that’s ever been done in law enforcement or corrections or any kind of natural resource enforcement is so‑called cultural sensitivity training, cultural awareness training, anti‑bias training, anti‑discrimination training because they don’t put it into practice. The whole system, even the laws and the enforcement part, is set up to be heavily armed, violently enforcing Canadian laws against Mi’kmaq and other people. The only way you’re going to get that is for DFO to no longer have an enforcement duty against Mi’kmaq people.

It is the same with the RCMP. When it comes to fisheries, you no longer have an enforcement duty against Mi’kmaq people. Your only role is to protect Mi’kmaq people. That would fundamentally change literally everything. There would be no police shootings, beating up, criminalization or arrests of Mi’kmaq people or others with regards to fisheries. I think you could apply that across a whole bunch.

Even the UN Special Rapporteur on Violence Against Women came here and said Canada has to engage in a zero tolerance for all these violent enforcement activities, especially against Indigenous women, and implement and respect all of our human rights, including UNDRIP.

I don’t know how many more TRC, national inquiry, numerous United Nations committees and inter‑American commissions, especially on policing, say here is what you want to do. But they want to tinker around the edges. They want to do the easy stuff that doesn’t require substantive change or them just getting out of the way. We need to get them out of the way.

Senator Christmas: Thank you to all our guests and witnesses today. I’m speaking from my home Mi’kmaq community of Membertou and the district of Unama’ki.

I appreciate all three witnesses putting a spotlight on a neglected topic, the self‑determination and self‑governance rights of Indigenous people as it relates to the fishery and natural resources. As our witnesses know, those self‑determination rights are well articulated in Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples.

I would like to explore the role of the international community on this issue as represented by the United Nations.

Professor Palmater, I appreciated your comments about the complaint that was filed by Sipekne’katik before the United Nations Committee on the Elimination of Racial Discrimination. I understand that you were one of the authors of that complaint.

Can you explain why that particular complaint was filed with the United Nations? Could you explain some of the events that led to the filing of that complaint? Could you also explain some of the remedies that are being sought by the complainants?

Ms. Palmater: Thank you for your question. It’s a really important one.

At the time, we know that there was widespread and high numbers of anti‑Mi’kmaq racism happening in Mi’kma’ki with regard to fisheries, not by the fault of Mi’kmaq people.

The people in Sipekne’katik spent years developing their laws. They notified everybody. They wanted to work with the government in a good way. They notified the provincial government, the federal government, the RCMP, DFO. They said that here’s how it’s going to roll out, let’s work together because we’re fearful that there are still segments of racism in society that might pose a risk to us.

They didn’t respond. They didn’t work with Mi’kmaq people, and we saw hundreds and hundreds of non‑native fishers, many of them commercial fishers, who were engaged in acts of violence, physically assaulting Mi’kmaq people, threatening to assault Mi’kmaq people, destroying boat traps and other gear and equipment, burning down buildings with complete disregard for human life, shooting flares at Mi’kmaq people, shooting guns at Mi’kmaq people in different places in Mi’kma’ki.

In addition to that, there was a big mob of people going to different buyers, threatening them with the same treatment if they bought from Mi’kmaq people, so not to just stop us physically from fishing, but to make sure we can’t ever sell our fish, no matter what fishery we’re under. They sought to exclude Mi’kmaq people, something Mi’kmaq people never sought to do. That’s why we went there. We saw it happening. We saw the RCMP sitting there not taking action. DFO was also confiscating our materials.

We thought, well, there’s no access to justice here. We got that from every inquiry that it’s racially biased and discriminatory, that law enforcement is often more violent with us than they would be to them.

We went to the UN because they have this urgent action process if you’re in the middle of a situation where the human rights violations are so grave and so dire that you need intervention on an urgent basis. We didn’t just go to them and say that our rights are being violated. We documented with videos and pictures and evidence. It was all on social media for everyone to see. Canadians literally sat back and watched it all happen.

They wrote back. The reason we went to them is because there is no access to justice here and despite Sipekne’katik and others’ rights being addressed, they weren’t being addressed.

Instead federal officials were saying that they’re outside their season and fishing illegally, so basically adding fuel to the fire and engaging in social media conversations with these fishers that were very problematic and potentially violent. That’s why we went to them asking for a review of our evidence and to look at our human rights and can you intervene with Canada?

That’s exactly what they did. They were very concerned about a potential loss of life, about the ongoing violence, of us being pushed out of our resource, of us being forcefully removed from our territories and all of the breaches we talked about today. Why is Canada not taking action to protect the Mi'kmaq from harm, and second of all to protect us from our rights?

They called on Canada to specifically repeal any federal or provincial laws that conflict with those rights. Some of those laws are limiting whom we can sell to, what our seasons are, that we can’t do it under Mi’kmaq laws and all these things. It acts like a blockade against our right to engage in the economy. We’re saying to lift these blockades because they breach human rights and tell Canada these are the things that you need to do.

Senator Christmas: I certainly appreciate your thoughts, Professor Palmater. Domestically, the Mi’kmaq have exhausted all legal means. We have a decision of the Supreme Court of Canada. In the past 20 years, I think we’ve exhausted all the domestic means to work with the government to try to resolve this. You can appreciate as well how frustrating both we as Mi’kmaq, Wolastoqey and Passamaquoddy are with the whole issue.

Perhaps with the attention of the United Nations now focused on Canada and its treatment of those in the fishery, I would appreciate your thoughts, if we as Indigenous Canadians or other Canadians who are allies, if they should ask the international community, the states of the United Nations, to consider boycotting any Canadian fish products that are not harvested by Indigenous people or at the minimum not harvested according to the terms of the trade clauses of our treaties. I would appreciate your thoughts, Professor Palmater and the other of the panellists, about initiating an international boycott of Canadian fish products.

Ms. Palmater: Thank you. That’s a really important question and one that is primed to be misunderstood.

As you know, being from Mi’kma’ki — and I’m from Mi’kma’ki too, in what is now known as New Brunswick — we face the same issues, just in different parts of Mi’kma’ki. We’ve always said we want to govern our own fisheries, lands and waters, according to our laws and regulations, and determine what needs to be conserved, where we get to benefit — and not in an exclusionary way, not to say, “Non‑Native fishermen, you can still fish, but under these terms and conditions and amounts.” These are decisions for us to be making.

That being said, we have long advocated in the international community, whether it’s timber or any other natural resource coming out of Canada, that anyone who harvests any natural resource from any unceded territory, like Mi’kma’ki, who has not complied with human rights and Indigenous laws — and remember, these human rights under UNDRIP are minimum standards. If they have not complied with minimum standards — and certified by, say, Mi’kmaq people or some other body — they shouldn’t be allowed to be sold, and that should be a specific thing in trade agreements.

One of the issues I spoke to you about previously is international trade agreements and how we are excluded and what we need to do to protect our natural resources.

I think that if they continue to do this in a lawless manner that violates our human rights, we need to advocate. Only fisheries that have our stamp of complying with basic human rights and our laws can go ahead. You will find that probably the vast majority of non‑Native people and individual fishers are more than happy to comply with that. It’s just those who have the monopoly or the racist segment of the commercial industry, who are very anti‑rights at all, who might have a problem with that.

Ms. MacIntosh: I would be hesitant to suggest a boycott unless it absolutely came out of the communities, obviously. That’s where I would be starting this. I’m concerned about overreaching, as someone who is not a member of a Mi’kmaq community.

Your comments put me in mind, though, of what happened after the Tsilhqot’in decision was reached, recognizing Aboriginal title in British Columbia. One of the things that was hovering in the background, being articulated by non‑Indigenous peoples, was this fear of what’s going to happen to all of those White people who live right beside that Tsilhqot’in territory or whose homes are on Tsilhqot’in land that was in the claim area.

This was raised as a big monster under the bed, but what actually happened is that the individuals, the families who were neighbours and had been living alongside Tsilhqot’in communities, were very happy to be governed by the Tsilhqot’in people because they knew that they protected their interests; they had relationships.

As we move, hopefully, toward meaningfully respecting Indigenous governance rights over their fisheries, I wouldn’t be surprised if we saw non‑Indigenous fishers wanting to be brought somehow within that regime, in part because it is going to be resource management practices that will survive into the future. People working within a Mi’kmaq treaty rights fishery or an inherent rights fishery know that the resource is being approached in a way that their grandchildren will be able to fish. That is of great comfort to people.

Ms. O’Byrne: I would like to make a couple of quick points. I appreciate your comment about exhausting legal avenues. When you say “exhaustion with legal remedies,” you have to look at the institutional design of courts. They’re designed to basically deal with zero‑sum arguments. You go to court, you have a right to something, you have a remedy. They’re not designed to deal with governance and governmentality.

What we’ve seen in the past, of course, is Indigenous people using every avenue at their disposal — litigation, political, running for office, manning the barricades, protesting if they have to — and shifting and moving all the time. Maybe politics is more the way to go because section 35, in which Aboriginal and treaty rights are recognized and affirmed, is not part of the Charter. Of course, the rights discourse is more the zero‑sum game: My right has been breached, I go to court, and I seek a remedy. It’s not about shades of grey.

When we’re dealing with shared governance and three orders, we need to figure out a way to navigate those different relationships and have a different kind of dispute resolution mechanism set up. Our current institutions are not designed to manage this very well. That’s where I think you get to the exhaustion of those legal avenues.

I appreciate that maybe we go to the international community to do something big to even spark the conversation. That can be effective. We do see protests moving politicians to actually come to some kind of agreement or at least seeing that the negotiations need to be had. If you want to be a real optimist about New Brunswick — to get back to Senator Cormier’s question — that did come out of Burnt Church, but you’re playing brinksmanship here and it is very dangerous.

It is in everybody’s interest to realize that all levels of government, including Indigenous levels of government, need to sit down and figure out a way to create meaningful shared governance of these resources. If the government won’t move, we need to figure out ways to make them move.

Senator Cordy: I’m speaking to you today from the unceded land of the Algonquin and Anishinaabe peoples. I want to thank the witnesses so much. This has been such a straightforward, direct, no‑holds‑barred discussion. That’s what we need if we’re going to be discussing the Mi’kmaq fishery or Indigenous fishery.

I’m from Nova Scotia and I remember the Marshall decision back in 1999, 23 years ago. Here we are still talking about it and not much has happened, which is frustrating. I can remember saying it was 10 years ago, 15 years ago. It’s now 22 years ago and we’re still having the discussion that it’s not been implemented. It’s just not working. It hasn’t been moved much past the starting line.

We’ve seen with the fisheries — it’s been spoken about by others — the violence and destruction of property. We saw that in Nova Scotia and Southwest Nova last year. It’s not a one‑off situation. Senator Cormier spoke about Burnt Church. These things are happening.

I agree with all of your comments. Action has to happen now, not in 5 or 23 years’ time. Indigenous peoples — and we heard this today also — are not included in the decision making. They’re just sort of shunted off to the side and told what to do.

Should Crown‑Indigenous Relations and Northern Affairs Canada, rather than Fisheries and Oceans, be the federal department leading nation‑to‑nation negotiations? It doesn’t appear that it’s nation‑to‑nation negotiations with the Department of Fisheries. Would a change like that make any difference?

Ms. O’Byrne: My students ask that question every single year when they’re watching the video of what happened at Burnt Church. It used to be Indian and Northern Affairs Canada. Where are they? They have not provided the leadership. We still have an Indian Act in this country, as unpalatable as that is. My students find it difficult to even say the words “Indian Act” because it’s uncomfortable for us to say that, but we still have it. We have not seen any leadership or coordination. They’ve vacated the field. You have DFO and the RCMP wondering what to do; and the feds, under the auspices of CIRNAC, are nowhere to be found. They might be there, if asked, to provide a few resources or coordinate a little bit, but they have not been providing a leadership role.

I talked to someone who is working for one of the First Nations here in New Brunswick last week in preparation for today, and that’s exactly what her complaint was: There’s no leadership, there are no resources and there is no meaningful role that they are playing. So you have to ask why they continue to exist. That’s another thing we have to unscramble with the scrambled egg: Do we need CIRNAC and do we need an Indian Act? That’s an entire other conversation.

You asked a really good question, because there has to be a way that these interests can be put to the table, and if the federal government is just going to vacate and only be there with respect to enforcement under the RCMP and DFO, we have a real problem.

I have no answers for you except that they have not been around in a meaningful way in New Brunswick.

Ms. MacIntosh: I would say that if the Senate committee is able to recommend that the federal government repeal the racist federal legislation that is unconstitutional insofar as it applies to Mi’kmaq people, Mi’kmaq people practise their inherent‑rights fishery and they just start doing it. If Canada wants to develop an agreement about what the shared relationship looks like, maybe the rubber would hit the road a little bit if that fishery was in place, active and protected and we’ve managed to get somewhere where we haven’t gotten since 1999.

Obviously, DFO officials are not the right people to be at the table. I’m not sure that Crown‑Indigenous Relations and Northern Affairs Canada officials are either. We need people who have a mandate to actually make agreements, not just to say they are there to listen, where that listening is then turned into consultation and used against Indigenous peoples at a later date.

We need to flip this on its head and create this green light: “Indigenous peoples — Mi’kmaq peoples — engage in your inherent‑right fishery. We trust you to govern reasonably. We trust you to practise conservation. We trust you to know what you are doing as people who have fished since time immemorial.”

And if the federal government wants to play a role in what that fishery looks like, they can come to the table with Mi’kmaq people and come to an agreement with them. But I see no reason why the Mi’kmaq fishery should not be happening right now and have the full protection that the rule of law demands.

The Chair: Thank you. Senator Cordy, do you have a follow‑up?

Senator Cordy: I think Professor Palmater has her hand up, also.

Ms. Palmater: I agree with Professor MacIntosh. At the end of the day, you’re not going to get nation‑to‑nation negotiations when it’s a nation‑to‑department situation, which is what it is right now, whether it’s CIRNAC or discussions with DFO, the RCMP, Health Canada or the Status of Women Canada. A nation‑to‑department‑bureaucrat situation is not a nation‑to‑nation relationship.

We need solid, clear decisions coming from cabinet and the Government of Canada to say who is going to sit down and negotiate these things with an actual mandate. They should say, “But while it takes us forever to do that, we’re going to exempt the Mi’kmaq and other First Nations from DFO laws, policies and regulations. We are going to change our enforcement mechanism to protect Mi’kmaq people against violence from anyone in any community or industry. We’re going to provide the ways and means so that we could beef up our self‑determination and all of our advisers, researchers and scientists. Then we can get to the part where we can sit down and take a review of laws and talk about potential joint governance if we want to.”

Senator Cordy: Thank you. I’m definitely going to have to read the transcript of this meeting. I’m trying to take notes, but it’s not working because everything seems to be so important.

Do the Mi’kmaq and other First Nations have a treaty right not just to fish to earn a moderate livelihood but also to govern their own fisheries? I know you’ve answered in different ways, but this is just a little bit more direct and more specific.

Ms. Palmater: Is that for me?

The Chair: Go ahead, Professor Palmater.

Ms. Palmater: Mi’kmaq people — and I obviously don’t speak for all Mi’kmaq people — but from all my work and research, Mi’kmaq people have, first and foremost, the inherent power of sovereignty, jurisdiction and governance to govern the resource and benefit from it. That’s long before section 35.

In addition to that, section 35 also recognizes Aboriginal rights to fish. We haven’t really tested out the Mi’kmaq Aboriginal rights to fish, which is very different from treaty rights and what’s protected in a treaty. So this one treaty has been limited by the Supreme Court of Canada to a “moderate livelihood.” I think that’s wrongly decided based on international human rights laws and will have to be reconsidered; I don’t think there needs to be that cap on there.

That said, that’s only one of our wide‑ranging rights, powers and jurisdictions that we have, including UNDRIP and all of the other international laws that say that we have the right to govern it, benefit from it, control it, conserve it — whatever we want.

The Chair: Thank you, Professor Palmater, and thank you, Senator Cordy.

Before I go to Senator Ataullahjan, I want to advise senators and our witnesses that we have about 24 minutes left. We have a hard cut‑off because of the hybrid situation. To use Senator Cordy’s words, “small questions sometimes bring on large answers.” So that is a reminder to everybody.

Also, at the end of our meeting today, if time allows — and if time doesn’t allow, we’ll have it in writing — when we conduct a study such as we’re doing at the present time as a committee, the focus of our report is our recommendations at the end of the day — what we would recommend to the Senate to follow up on the work we have completed.

I would like to have each of the witnesses, if they could, give us a recommendation or put forward a suggestion that we could include in our recommendations. We’ll go back to that, but I just wanted to give you some time to think about that as we go forward. I hope we have time to ask each of you that question at the end.

We have a second round, but I’m not sure we’re going to get there because we have three senators left in our first round.

Senator Ataullahjan: As someone who is very new to the committee, I’m learning.

My question is to all the witnesses. The one thing I have particularly noticed in your testimony is the disconnect between the federal government and the Indigenous communities. As consultations seem unsatisfactory, how would the implementation of Indigenous advisers within governmental departments, such as DFO, contribute to advancing issues like the moderate livelihood fisheries? We continue to hear of the existence of systemic racism in DFO and some of the other government departments.

Ms. O’Byrne: I appreciate that, especially since we’re all searching for knowledge. To get back to Senator Cordy trying to take notes, as a non‑Indigenous person learning about this, I found a book by Peter H. Russell called Canada’s Odyssey. That book gives a good overview. He worked 60 years on these issues, and it’s geared to non‑Indigenous people who are just learning about these issues. I highly recommend it.

To get back to the Indigenous advisers, I think it’s great. You have to look at different models because there is a plurality out there in Indigenous communities. What tends to happen is we say, “We’ll find an Indigenous person,” and Professor Palmater just said that she doesn’t speak on behalf of all Mi’kmaq. I can tell you that the diversity and plurality of Indigenous communities in this country are mind‑bogglingly rich, and they are a fruitful source, but you can’t say to somebody who is Cree from northern Saskatchewan that they’re going to have the same perspective as another Indigenous person in another part of the country.

There have to be some ways to provide that input in a more meaningful way, but you certainly cannot expect to have a few Indigenous voices at the table and decide that we’re kind of done, because it’s just too complex for that.

Ms. MacIntosh: If there was an Indigenous advisory group that sits at arm's‑length, that doesn’t need to sit within the rank and file of DFO and experience the microaggressions of racism and are able to come together, work together and then feed in or direct or play some sort of role, that would be better than simply having individual advisers. I think that would be a very toxic workplace for them, and it would cause them a great deal of harm. An independent committee of Indigenous peoples could certainly very meaningfully feed into what’s happening on the ground.

I want to add as a follow‑up to Senator Cordy’s question about the governance rights that the Supreme Court of Canada has been very clear that with any Aboriginal right, it includes the right of the community to determine how that right is exercised. So there’s necessarily a political component. That’s the 2006 Sappier and Gray decision.

Ms. Palmater: This is an important question because governments, ever since the “Buffalo Jump of the 1980s,” where they set out a very particular tactic where they were going to implement all of these really destructive policies, but they were going to make sure that they had First Nations representatives standing beside them to do all these joint announcements to make it look like it was in our best interests. They found out how effective that is.

Unfortunately, it’s not just this government but governments of all political stripes: federal and provincial. They seek out Native people who agree with their position, or who will agree with their position for the sake of a job or something else, and that’s the kind of “yes, sir,” “no, sir” input they often get.

I’m speaking from experience. I worked in the federal government at Justice Canada and Indian Affairs for 10 years. Maybe it has changed, but I haven’t heard from my colleagues that it has changed very much.

Then there are people there who try hard to say, “You need to make these changes,” and like Professor MacIntosh said, they are subjected to lots of heartache.

That being said, there is no Native adviser in any department that can do this work. This is nation‑to‑nation work, and we decide who our representatives are. If the Mi’kmaq say, “Yes, we want a Native adviser at Indian Affairs,” okay, go ahead. That’s the Mi’kmaq choice. But “nation to nation” means far more than individual advisers who are supposed to be generalists on all of these issues.

Yes, DFO is a federal agency, but the relationship, nation to nation, is with the Mi’kmaq on the ground, or with the Wet’suwet’en or with the Haida. That means you need to talk with the rights holders, which includes chief and council, traditional leadership, grassroots fishers, Indigenous women, Indigenous experts and Indigenous advocates.

In particular, we have to keep in mind that both the national inquiry and UNDRIP say we need to give specific and particular attention to Indigenous women. I would even argue Mi’kmaq women, too, who have been historically excluded from participating, their governance, and even being members in their community. Right now there are hundreds of thousands of First Nations women and children excluded from their communities. So they don’t have a voice to say what’s going to happen.

We’ve got a lot of work to do, and I don’t think that’s going to happen with Native advisers on a national level. That can only happen on a nation‑to‑nation basis with representatives of our choice. We might do it on a nation basis or a local First Nation basis or a region area or a treaty area, but that’s for us to decide, and that’s going to look different across the country.

Senator Quinn: I want to sincerely thank the panellists for dealing with an incredibly complex subject with such clarity. I’ve had experience in working in Indian Affairs as a senior official, at Privy Council as a senior official, and this is probably one of the best, if not the best, discussion that I’ve heard. I also want to thank my colleagues for asking such great questions, because all of the questions I was thinking of have been asked, and the answers have been incredibly strong.

I reflect on our nation and how we view the world, how we’re critical of other countries, and yet here we are in Canada having discussions like this today. It’s disturbing, embarrassing in a way, and yet, here we are.

I’m afraid of thinking that a solution exists with a flicking of a switch. I don’t believe that to be the case. I think that would end in conflict on the front end, on the people on the ground. One of the missing elements that has been touched on by all the panellists, quite frankly, and I’ve heard it a few times, is the word “education.” This complex subject cannot be solved overnight, so how do we start to make a difference?

I grew up in New Brunswick, and I can’t recall anything in my education that touched on Aboriginal history. I learned more from elders in my time at Indian Affairs, where I had mentors who were elders in the West and the East.

The federal government tinkers with legislation. They try and have workaround solutions. Is there a way that the federal government, the provincial government and First Nations can work together through the education system so that we at least start to educate the up‑and‑coming young people so they don’t have all of the blindness and prejudice that everyone else had as we came up through our systems?

Ms. MacIntosh: Absolutely, Senator Quinn. That was central to the Truth and Reconciliation Commission’s recommendations, to radically change how the story of Canada’s history and the story of Canada’s current reality is told and to address the erasure, silencing and bald‑faced lies that populate much of existing curricular education. I know that many provinces have initiated changes within their programming. I don’t know what it is.

Yes, education is key, but as I say that, it’s essential that no suggestion be made that Mi’kmaq people have to wait for non‑Mi’kmaq people to understand Mi’kmaq treaty rights for those rights to be protected and acted upon.

Ms. Palmater: Public education is always important. There hasn’t been a national inquiry, commission, report or investigation for the last five decades that hasn’t recommended culture awareness training and public education.

It’s important at all levels, not just K to 12, but also the public and what they see in the media, on TV and so on. Part of that could be providing the ways and means to implement UNDRIP’s right of Indigenous peoples to have their own media and engage in education so that they could be doing it, and the government could be supporting that.

That being said, the last thing we should do is wait until everyone agrees and everyone understands. There is always going to be a segment of the population that doesn’t agree. Human rights are not a popularity contest, nor are Indigenous rights. Whether people know it, understand it, like it or not, they are the rights, and Canada has a job to make sure that the messages they send out over and over again is that this is our legal responsibility and moral responsibility. We were going to defend and protect Indigenous peoples in doing that, instead of having politicians act like we’re criminals, insurgents, and to be monitored, surveilled, criminalized and incarcerated like we are, because that sends the opposite of the message that we’re all here to work together.

Ms. O’Byrne: Could I jump in on that. I’m an educator and this is a little close to my heart to let it go by.

To just be crass, here comes the Truth and Reconciliation Commission of Canada in 2015, and I’m on a number of committees that talk about implementing it and what we do and videos. It’s actually easier to communicate with people now than it’s ever been. You can put a video on YouTube and that’s accessible and all these kinds of things are really great. I now come to most of these meetings and I put my hand out and say: Where’s the money? Where’s the money to do these things?

So the TRC is out, like Professor Palmater said, every study has said for decades we need more education. I don’t see the funding for the education. It’s kind of been too much voluntariness. I’m a non‑Indigenous person. I’m the only person on our faculty who is teaching Indigenous governance. We need more people to do that. Just to be frank, we need more money put into the system so we can actually do that at all levels. The curriculum is being developed, the goodwill is there, but the universities, the community colleges and the high schools just do not have the funding to do it to the extent that we need to do it.

Senator Quinn: Professor Palmater, I agree that there has to be action. Is it a blanket action? Is there a way we can go to an area that has the capacity and a cooperative environment that says: Here, do exactly what you’re saying, Professor Palmater. Is there a way to do that in an area that can say this is how it can be done and it can grow quickly from there? Is there something that can be done?

Ms. Palmater: There is always a lot that can be done. The thing about moving forward and moving forward on a human rights and Indigenous rights framework means there’s going to be a whole lot of uncomfortableness, there’s going to be social conflict, social confusion, but that happens in every society. That’s how we get to where we want to be.

Mi’kmaq have been saying for generations: Hello, let’s sit down and talk about this governance and treaty rights and many other things. And so have many other First Nations because we coordinate with them across the country.

That being said, it took 500 years for us to get here. If we say that is going to take a long time to undo, that’s not going to do it. In a week, legislation could be introduced to say: Mi’kmaq are exempt from all of the laws, policies and regulations under DFO, and we have changed our enforcement mandate to protect them and enforce their rights and protect them while they do that, and here are the ways and means for Mi’kmaq to engage in everything they need to do to govern that fishery until we get to the time when we can sit down and have a table and negotiate a mandate and all that long‑term stuff. There’s always stuff that needs to be done in the interim and that’s what needs to be done in the interim.

Senator Quinn: Thank you, doctor, and thank you, panellists.

The Chair: Professor Palmater, I’m sorry for rushing you, but we’re down to the wire.

Senator Ravalia: Thank you to the witnesses for your very passionate and compelling discussion today.

Given the challenges that we face, are there any examples of successful Indigenous rights implementation models that we can use as a foundational element on a go‑forward basis if we’re able to address all the huge issues of systemic racism and the many issues that you have brought up today? Do we have an example of somewhere that we can start at a germinal phase and say: We’ve had some success here. What has worked? Can we use this as a basis for our communities to apply this model?

Ms. Palmater: I think that is similar to the question that was asked before. I’m always hesitant to point out different countries or different Indigenous groups because it’s different political circumstances and laws and history. Similarly here in Canada, you can’t really compare what the Mi’kmaq are doing compared to what the Haida are doing and the Mohawks, for example.

That being said, I think we need to look at it a bit differently, with respect. Instead of looking at where the best practices are or best cases where the government has this great relationship, let’s look at best practices and best cases in our First Nations.

For example, after the Sûreté du Québec went in and brutalized Mi’kmaq in Listuguj because they were trying to protect their river and govern their fishery, years later the Mi’kmaq win this award for having the best protected and managed river ever.

Look at Sipekne’katik and what they have done in terms of making sure everybody knew and everybody was engaged. They didn’t deserve the response they got, but they were saying: Here is what we’re doing and let’s work together. They were constantly putting out their hand.

So I think there are a lot of good examples in the Mi’kmaq nation where we say: Yes, what’s working there is good. That represented the community. That represents that district or that area. Instead of trying to look at where’s our good examples on the federal or provincial government because 99% of the time these agreements or situations or initiatives or programs all came from top‑down government or were enforced at the barrel of a gun because RCMP went in and made arrests or the DFO made arrests. Let’s look at it from the other way. Let’s look at what’s happening in Mi’kmaq territory. You would be in a very good position in Mi’kmaq territory to start these kinds of relationships.

Senator Ravalia: In a broader sense, do you envisage a time where some of the UNDRIP regulations actually become part of our laws here? Would that simplify the process? Would that facilitate a more uniform approach for the federal government to work on a nation‑to‑nation basis?

Ms. Palmater: That’s a great question. I’ll try to answer quickly.

Bill C-15 not only recognizes UNDRIP but has made the specific statement that it now has applicability in Canadian law. That means the new standard to look at all federal laws, policies and practices and provincial laws indirectly, but at the federal level, must meet this standard. Canada has to develop a national action plan to make sure that it does.

So we’re already there. It’s just whether or not the federal government is going to come to the table and work with us as we go through that process of making sure that every law, policy, practice and regulation respects our minimum standard human rights that you find in UNDRIP and other international documents.

The Chair: Thank you, Senator Ravalia. Thank you, Professor Palmater.

I sincerely apologize to all senators who have requested to go on second round. We don’t have time. We are down to two or three minutes now.

I’ve been chair of this committee now for about 10 years, and I don’t think I have ever said I would love to stay here all day and continue this conversation. It’s been very enlightening and educational. I want to thank our witnesses for sharing your knowledge, experience, expertise and your time with us. I mentioned passion earlier, and there’s no doubt there’s passion in what you do.

We’re hopefully here in some small way to assist in the efforts and that our report that we present to the Senate will include many of the things that you have discussed here today.

I don’t have time for each of you to offer a recommendation to us. I would ask if you could take the time to send along to our clerk anything that you think would be positive to our report in regard to a recommendation, and if there is anything you wish to share with us that you didn’t have the opportunity to do so today, feel free to send that along to our clerk as well.

I will go back to discussions on the law. I was told a long time ago that hindrance of the law does not allow you the opportunity to break it. So we need to know what they are from a non‑Aboriginal person here.

I’m learning so much through this process. Coming from Newfoundland and Labrador, I just finished reading a book — and I have my book too — about Empty Nets: How Greed and Politics Wiped Out The World’s Greatest Fishery that talked about mismanagement of the fishery we’ve experienced in our province. We’re reaping the negative side of all that now here. So I fully understand where you’re coming from with that.

Senator Busson, I apologize that we’re not going to be able to go in camera for a discussion that you wanted to have earlier. We will make arrangements to do that with steering in short order.

I believe that’s all I have to do. I want to thank our witnesses for your very direct comments and answers to our questions. I want to thank our senators for the very insightful questions they’ve put forward this morning.

(The committee adjourned.)