THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Tuesday, April 5, 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 for Newfoundland and Labrador. I have the pleasure to chair this meeting. Today, we are conducting a hybrid meeting of the Standing Senate Committee on Fisheries and Oceans.
I would like to remind senators and witnesses to please keep your microphones muted at all times unless recognized by name by the chair. Should any technical challenges arise, particularly in relation to interpretation, please signal this to the chair or to the clerk, and we will work to resolve your issue. If you experience other technical challenges, please contact the ISD Service Desk with the technical assistance number that has been provided to you. Finally, I would like to remind all participants that Zoom screens should not be copied, recorded or photographed. You may use and share official proceedings posted on the SenVu website for that purpose.
I would like to take a few moments to introduce the members of the committee participating in today’s meeting: our deputy chair, Senator Busson from British Columbia; Senator Ataullahjan from Ontario; Senator Christmas from Nova Scotia; Senator Cordy from Nova Scotia; Senator Cormier from New Brunswick; Senator Francis from Prince Edward Island; Senator Kutcher from Nova Scotia; Senator McPhedran from Manitoba; Senator Quinn from New Brunswick; and Senator Ravalia from Newfoundland and Labrador.
Today, the committee continues its study on Indigenous rights‑based fisheries.
I would just like to advise committee members and witnesses that for the last half hour of the meeting, I have to leave. Deputy chair Senator Busson will take the chair. You can be patient and kind with her as you are with me.
We have the pleasure today to welcome — and I apologize; I will try my best to have the right pronunciations. Some people tell me I’m still working on the English language, being from Newfoundland and Labrador.
We have the pleasure to welcome Chief Carol Dee Potter and Eric Zscheile from the Bear River First Nation; Grand Chief Jacques Tremblay and Guy-Pascal Weiner from the Wolastoqiyik Wahsipekuk First Nation; Tara Levi, Executive Director, and Bruce McIvor, Legal Counsel, from the Mawiw Council Inc.
On behalf of the members of the committee, I thank you for being here today. I understand that we have some opening remarks. Following the opening remarks, I’m sure members of the committee will have many questions for you.
Chief Potter, I’m going to give you the floor first to begin our meeting today.
Carol Dee Potter, Chief, Bear River First Nation: I would like to thank the Standing Senate Committee on Fisheries and Oceans for inviting me to appear today and address the implementation of the Mi’kmaq fishing rights. I have been a chief of Bear River First Nation for 11 years and, with my council and community elders, have been working on implementation of our fishing rights for our children, grandchildren and generations to come.
I have always been a fisher. I learned from my parents and grandparents how to fish for our family and for our livelihood. For me, fishing is not only a way to provide for my family but is a direct connection to my ancestors and the Mi’kmaq culture that they gave me. We are and have always been a fishing people. Fishing is fundamental to my attachment to the lands and waters around me.
In these brief remarks, I would like to make two points. One, all Mi’kmaq people have the constitutional right to fish for food and their livelihood, and two, all Mi’kmaq communities have the right to self-govern their implementation in a way that they see fit in cooperation with Canada.
Regarding the right to fish, I have known all my life through the teachings of my elders that I have the right to fish based on the inherent rights of my ancestors and the treaties they had made with the Crown. All their lives, all Mi’kmaq know what the courts finally had accepted, 20 years ago, in Marshall. I also had been taught that my right to fish must always be guided by the Mi’kmaq law of Netukulimk: that I can only take what I require; that I have personal stewardship responsibilities to the land, water and resources; that I have an obligation to ensure that I do not exploit what the creator has given and that I see that my children, grandchildren and future generations have the same opportunities. This is why Bear River never signed with the DFO post-Marshall. Those agreements were about the commercial fishery, and my community was not interested in developing a fishery based on our culture and rights of Mi’kmaq.
To date, my community members still do not have the ability to fully access the fisheries resources, particularly for those purposes of sustaining moderate livelihood in Bear River.
In cooperation with other communities that make up the Kespukwitk district of the Mi’kma’ki, we are working as hard as we can with the DFO to fully implement these rights. We’re making some progress, but it is far too slow and far too little. They ask us to have patience, yet Marshall came down over 20 years ago. DFO continues to support the interest of the commercial fishery ahead of the Mi’kmaq.
I have always maintained that all Nova Scotians are treaty people. We have the equality to share the resources around us. Bear River always kept good relations with our non-native neighbours. Our Mi’kmaq community has not, however, come close to accessing the equitable share.
On the right to self-govern, I wholeheartedly assert that the Mi’kmaq have the right to self-govern their rights-based fishery. This was promised in an understanding of both our ancestors when they entered into the treaties. I accept that Mi’kmaq self‑government in fisheries must be done in cooperation and collaboration with Canada. We each have the responsibility to ensure a safe and sustainable fishery, to properly implement the constitutional rights of our community and our government and your government must develop a working solution that each of us in turn supports.
To further our self-government in the fishery, Bear River has joined with Acadia, Annapolis Valley and Glooscap First Nations to develop Kespukwitk district management. We support each other and, jointly, species management plans, community training processes and harvest engagements. We jointly determine how best to share fisheries access for livelihood purposes throughout our district.
We have been jointly negotiating with DFO to further our community management plans. As Kespukwitk communities, we have the obligation to be in stewardship of our area. We take the responsibility seriously. This does not mean the Mi’kmaq from outside of Kespukwitk are forbidden from harvesting in our district. Other communities’ districts need to work with us in our management planning to ensure proper sustainability and safety. As part of the Assembly of Nova Scotia Mi’kmaw Chiefs, we are exploring ways that this can happen.
This is based on the teachings of my elders, shared with you and with others and with respect to stewardship responsibility of those shared with you.
As frustrating as it has been for 20 years, I will continue to work with Canada to finally set down a respectful path of treaty implementation. There was no other path. I simply ask that when DFO sits at a table to work with how fisheries will look into the future, they stop giving priority to protect the commercial fishery or to protecting their own jurisdiction and control and start giving priority to helping the Mi’kmaq implement their constitutional rights. In the end, it will be a better fishery for all of us. Wela’lioq, thank you.
The Chair: Thank you, chief.
[Translation]
Jacques Tremblay, Grand Chief, Wolastoqiyik Wahsipekuk First Nation: Hello everyone. Thank you for welcoming us here this morning and allowing us to briefly present our nation and to talk to you about our fishery agreement with Fisheries and Oceans Canada. I am here with Guy-Pascal Weiner, Director of Commercial Fisheries of the First Nation.
The Wolastoqiyik Wahsipekuk First Nation, formerly called the Maliseet of Viger First Nation, is the only Wolastoqiyik Nation in Quebec territory. Six other Wolastoqiyik Nations are in New Brunswick. After the loss of Viger’s reserve lands in 1869, the community dispersed over the territories of Quebec, Canada and the United States.
It was in 1987 that a small group of people initiated work to find the descendants of the “Amaliseets of Viger” in order to re‑form the band, revive it and have it officially recognized. After a few years of hard work, the Quebec National Assembly passed a motion in 1989 officially recognizing the Maliseet of Viger First Nation as the eleventh First Nation in Quebec, and I include the Inuit in that of course.
Since that time, the road travelled has been impressive. The nation has embarked on the long road of cultural and identity reappropriation while deploying considerable means to develop itself on political and socio-economic levels.
Today, the Wolastoqiyik Wahsipekuk First Nation has a small reserve land in Cacouna in the Lower St. Lawrence and its members form a diaspora of 1,900 people. Our members are spread out throughout Quebec and beyond. Several members of the nation still go to Wolastokuk, our ancestral land, to take part in traditional activities there.
In the momentum for self-determination, in 2019 the community chose to go back to its original name, the Wolastoqiyik Wahsipekuk First Nation. This identity is closely linked to the water and the river. The term “Wolastoqiyik” means “the people of the beautiful and bountiful river,” or the St. John river, which is in the heart of Wolastokuk, our ancestral land. The term “Wahsipekuk” means “near the St. Lawrence River.” The reappropriation of this name demonstrates the cultural and historic importance of these waterways and the fisheries resources to the members of our community.
In fact, this relationship with the water is at the heart of several promising projects for the nation. Among other things, we have signed occupancy agreements with the Government of Quebec for the lands adjacent to the Port of Gros-Cacouna. The First Nation is currently establishing various partnerships that are essential to the development of these lands in order to collaborate with the different stakeholders. We hope to create a unique synergy on this site as well as on the land adjacent to this site, including on the sacred Gros-Cacouna mountain.
What is more, since Marshall, which confirmed that First Nations signatories to peace and friendship treaties have recognized and constitutionally protected commercial fishing rights, the nation has initiated the process to reappropriate the river and its resources. This process began with discussions between us and the Government of Canada that concluded with the signing of a framework agreement to renew the relationship with Canada in 2019. This agreement essentially sets out general discussions terms in order to provide a channel for an official discussion on implementing the rights of the Wolastoqiyik.
Then the First Nations and Fisheries and Oceans Canada concluded the agreement on the fisheries resources. That agreement touches only on the commercial fishery. The goal is to support access to the fisheries resources, agree on collaborative and participative management formats and to support self‑government in the management of harvestable fisheries resources on a commercial level. The agreement on fisheries resources also sets out contributions over 10 years divided among four key sectors for a total value of roughly $12 million. I will spare you the details about the division per sector.
Today, from the estuary to the channel bottom of the Gulf of St. Lawrence, the First Nation commercial fisheries are catching a range of fish, mollusks, echinoderms and crustaceans. Roughly 15 or so direct jobs are flourishing in eastern Quebec with another 15 or so jobs that support these activities during the harvest season. We are very proud that this agreement was signed. What is more, we were the first community in eastern Canada to sign a commercial fishing agreement with Canada, which is a testament to the dynamism of our community.
Accordingly, the Wolastoqiyik Wahsipekuk First Nation recognizes that the funding it receives for its commercial fishery is a positive lever for developing seafood processing and enhancement projects. The agreement also helps prevent disputes between Indigenous and non-Indigenous people by imposing one and the same system on everyone.
However, as we made clear to Government of Canada representatives during the negotiation of the accord, we do not believe that this accord can be described as an agreement of reconciliation. The non-negotiable part of the agreement would require the First Nation to submit to the federal regulatory framework on fishing activities in exchange for funding for fisheries resource development, with the governance and management that goes with it. The funding amounts were predetermined. These amounts were therefore not part of a negotiation focused on the vision and objectives of the First Nation with respect to the development of these fisheries and in full respect of the First Nation’s rights.
A quick calculation confirms that an amount of roughly $6 million for the Maliseet fishery, if spent strictly on right of access, on licenses for example, is far from adequate for achieving a suitable subsistence for our community. Consideration should be given to the fact that the price of fishing licenses is systematically inflated by non-native sellers because of the funding the First Nations receive from the Government of Canada. Buying access to the resource in the current system, added to this bidding war, means the money from the funding quickly ends up back outside the community.
The First Nation’s vision for its treaty fishing rights goes hand in hand with its vision for self-government and enhanced decision-making powers in managing its rights, which has not been adequately implemented, in our opinion, in the wake of the signing of the agreement. For example, last week the First Nation received correspondence from Fisheries and Oceans Canada (DFO) confirming that the experimental lobster fishing protocol in area 19 A-1 would be upheld for the fifth year.
Since 2018, the First Nation has been conducting experimental lobster fishing in this sub-area. We are calling for the transition from experimental status to an exploratory status in light of the good-quality high landings we have seen over the past two years.
An agreement implementation committee meeting was held on March 9. During that meeting, there was discussion about the DFO’s direction, which planned to uphold the experimental status of this fishery by invoking an inability to conduct the necessary analyses on time as well as an insufficient data collection by the First Nations. According to the explanations provided at this meeting, a change in harvest efforts at this time could compromise the analysis and hinder the working protocol.
Obviously, we disagree. For the First Nation, reconciliation and the recognition of its self-government requires the recognition of a permanent and active role in conservation measures for the resource to which the nation enjoys constitutional rights. The conservation parameters are currently entirely determined by the Government of Canada.
The First Nation’s vision for the implementation of its fishing rights includes an active, even central participation in determining conservation objectives and developing conservation measures, which for now seems to be in opposition to the DFO’s vision, despite the signing of the agreement on fisheries resources.
Honourable members of the committee, I hope all of this has been helpful for developing the DFO policy on implementing peace and friendship treaty rights. Thank you very much. Woliwon.
[English]
The Chair: Thank you, Chief Tremblay.
Tara Levi, Executive Director, Mawiw Council Inc.: Good morning, senators. Today I am making submissions on behalf of the Elsipogtog and Esgenoopetitj First Nations regarding the need for true shared decision making over our fisheries with Canada. Together, our two First Nations represent the largest Indigenous fleet in Atlantic Canada and represent over 400 fishers with 110 vessels.
As you will hear from me this morning, when DFO unilaterally regulates our First Nation fisheries, DFO not only fails to respect our inherent and constitutionally protected right to self-governance, it also puts our people’s lives in jeopardy.
To provide some context surrounding our fisheries agreement, in 2019 our First Nations entered into an interim fisheries agreement with Canada. Under this agreement, Canada committed to co-develop an approach to the collaborative management of our fisheries. Our nations were hopeful this commitment would result in a meaningful government-to-government relationship over the conduct of our fisheries. Under section 4.1(1) of the Fisheries Act, Canada can enter into agreements with Indigenous nations. However, it is three years later, and DFO still refuses to negotiate a true shared decision-making arrangement which represents our inherent jurisdiction and decision-making authority. Instead, we have been limited to a consultation-based framework under which our First Nations can only make recommendations to the minister on decisions impacting our fisheries.
There is a need for a true shared decision-making framework that recognizes our right to regulate our fisheries in accordance with our Indigenous laws and governance structures. There is already a legislative tool in place that can be used to achieve this. What is missing is the political will to do so.
The need for true shared decision making is personal. Days before the opening of the 2021 snow crab fishery, our nations implored DFO to delay the opening of the crab season. We knew there was still ice in the water, making it a hazard for our fishers. It was a little over a year ago that our communities lost two crew members: Jonathan Craig Sock, saw also known as Jumbo, and Seth Monahan.
This is why we cannot be limited to making recommendations only. If our nations were respected and approached as decision makers over our fisheries, this would not have happened. These discussions must be supported by adequate funding for the development of our governance programs, including the training of our guardians and fishers. When this training and our equipment are underfunded, it puts our people’s lives at risk. We know our territory and our waters. Shared decision making recognizes that together we can do better and make better decisions.
Canada must and can do better for Indigenous peoples in Canada. The path forward is true shared decision making over our fisheries. Wela’lin, thank you.
The Chair: Thank you, Ms. Levi.
We’re going to go to our senators now. Before we do that, I just want to advise senators that we have a long list here. We have another panel this morning, so if possible, if you have two questions, please put them into one and direct them where you can just to save time. I hate pushing, but I have no choice with the time constraints we have.
Senator Busson: My question is for Chief Potter. Chief Potter, in your opening remarks, you spoke about the fact that you have not signed a fisheries agreement with DFO in your search for a way forward for a moderate livelihood fishery. You talked about the need for self-governance in arranging a way forward.
In your view, how can co-governance be reasonably integrated into a path forward, given your negotiations presently with DFO? Do you believe that DFO is the proper department to be dealing with the moderate livelihood fishery?
Ms. Potter: Thank you for the question, but I would prefer that Eric Zscheile answer that for Bear River First Nation.
Eric Zscheile, Negotiator with Kwilmu’kw Maw-klusuaqn (KMKNO), Bear River First Nation: That’s an excellent question, senator. Currently, the Kespukwitk communities are in a process with DFO in what we’re calling implementation of community-based management plans.
Under our system, the communities themselves work with our harvesters and develop management plans on a species-specific basis to look at the livelihood fishery and implementation. We then have a process where we are sitting down with DFO and working out how that implementation can take place within both of our mandates. We still have parts of our mandates that are not aligned, but we are finding that there are enough of our mandates that are aligned that we are able to come up with solutions that let us start exploring, on an interim basis, where we can go forward.
In Kespukwitk, for example, both with the lobster fishery and the elver fishery, we have developed community plans that the harvesters are operating under. DFO, on their side, develops authorization, so it doesn’t require the signing of any agreements or the signing off of any licences by the First Nations. They go by their community plans; DFO goes via their authorizations. The negotiations are really making sure that the DFO authorization and the First Nation community plan align so that we are all doing the things that we think we are doing.
So far, they have been quite successful, and we’ve been able to get some people out doing some livelihood fishing and selling their fish without much of a problem. We’ve been able to get enforcement to be helpful in ensuring that the livelihood fishers are safe in doing what they’re doing.
The Chair: Thank you, Mr. Zscheile.
Senator Francis: Thank you. I am joining you today from my office that is located in the unceded territory of the Algonquin Anishinabeg people.
My question is for Grand Chief Tremblay and the Mawiw Council. The First Nations you represent signed RRAs. I am interested in hearing about your experiences. Could you tell us what legal mechanisms are available under the RRAs to create the space for true shared decision making, and have your relationships and experiences with DFO improved since Minister Murray was appointed?
Ms. Levi: I will divert the question to Bruce McIvor for Mawiw Council.
[Translation]
Mr. Tremblay: Thank you for the question, senator. I would like to start by saying that our relationship with the people from DFO is very respectful, and I do want to mention that.
We agreed to implement a reconciliation agreement with Canada for our fishery, and during the process, and at our request, we withdrew the title of reconciliation agreement. This agreement works for us to some extent because it does let us develop our fisheries, but it does so according to the standards and vision of Canada. We wanted to have a more participatory role in the agreement. I gave the example of lobster fishing where we collect our own data.
We belong to the Mi’gmaq Maliseet Aboriginal Fisheries Management Association. We have scientists working for us. They collect data from our boats and analyze them. However, Canada continues to apply its management formula for a conventional program. Our nation can take on more responsibilities. We have established impeccable financial management and administrative systems within the nation. We have scientists working with us. We are working with the Maurice Lamontagne Institute and Fisheries and Oceans. We also work closely with the Group for Research and Education on Marine Mammals on the protection of marine mammals, which lets us continually improve our fishing techniques.
Therefore, we have reached a point where we can move on to the next level. When you talk about self-determination and self‑government, you have to move in that direction. Unfortunately, the current agreement only works for us in part because it is based on the management of a conventional program.
Once again, our discussions with DFO staff are respectful and cordial.
[English]
Bruce McIvor, Legal Counsel, Mawiw Council Inc.: Thank you, senator, and thank you for the opportunity to follow up on your question on behalf of Elsipogtog and Esgenoopetitj. What is really important here is that there is a mechanism within the legislation to move forward true shared decision making.
The current mandate that we see from the federal government doesn’t move in that direction; it is more of your usual consultation-based thing, where all decision making is with the federal minister.
But this is a unique situation. There is section 4.1 under the Fisheries Act, which, as senators know, was amended several years ago to allow for these kinds of true shared decision-making agreements with Indigenous governments. It is there. I do this work all across the country. Usually there is no legislative mechanism for it. Here there is a mechanism, but what is missing is the political will to have those conversations with the Mi’kmaq to see what a true shared decision-making agreement would look like.
It is really important that this can be based on the Mi’kmaqs’ inherent laws and inherent rights to govern themselves. It would be in line with the federal government’s commitments under UNDRIP, because the legislation says that they must take all steps necessary. This would be implementing Article 18 of UNDRIP.
It is not just an opportunity. Elsipogtog and Esgenoopetitj say there is a positive obligation on the federal government to move forward in this direction, and Parliament created this space exactly for that to happen. What we need now is the political will from the minister’s office to do it. Thank you very much.
Senator Francis: Thank you.
[Translation]
Senator Cormier: Chief Potter, I would like to thank you for the help the Mi’kmaq gave Acadians during the darkest days of our history. I want to recognize that this morning. I also want to say that I am speaking to you from the Algonquin Anishinabe territory.
My first question is for Chief Potter and Ms. Levi. I find it difficult to reconcile the fact that we are talking about, in the case of Indigenous peoples, constitutional rights and self‑governance, which I recognize. How can these two visions come together? It seems to me that they cannot necessarily be reconciled.
My second question is for Mr. Tremblay. You spoke about the agreement with the federal government. How were you able to establish a climate of trust that led to the signing of the agreement? This type of agreement is not really found elsewhere, if I have understood correctly. Thank you.
[English]
Ms. Potter: Thank you for the question, but I will also ask Eric Zscheile to speak to your question. Thank you.
Mr. Zscheile: Thank you very much, Chief Potter.
The way we look at it from the Mi’kmaq perspective is that the treaties were really about co-management and co‑governance — the idea that two peoples governing themselves from different cultures could still find a way to share resources and do it in a way that was culturally appropriate to their own communities.
In Nova Scotia, we have a concept that we call “two-eyed seeing,” which is having Western science and traditional knowledge, and both of those have something to offer to the way that management of resources can take place. The idea that Canada and the Mi’kmaq themselves could look at jointly managing the fisheries in a way that brings out the best of both of our communities is really what we look at with the co‑management idea.
So each of us has a role to play, and it is completely consistent with the idea that two governments can work together and find a better way to manage the resource.
Ms. Levi: I am under the same understanding as the previous speaker. We realize that DFO is not going anywhere, so what better way than to try to work together and develop our governance structure and our fisheries. We’re doing that currently. We have a DFO fishery officer on secondment with us who is helping train our guardians because of incidents last year when the Coast Guard, DFO and the RCMP did not go out and search for Jumbo. We had to send in our own people to do so.
We recognize that we need to work together and there is that willingness. When we use the word “collaborative,” that is government terminology. We signed an overarching agreement, of which we met two out of the three criteria for DFO. We are waiting on the collaborative part, which seems to be the most difficult part, reaching forward. We want to work together, and as mentioned, we want to regulate our own fisheries, but we want do it in the light that’s the best for everyone.
[Translation]
Mr. Tremblay: Thank you, senator, for the question. How were we able to establish a climate of trust with the federal government?
First of all, shortly before signing the fisheries agreement, we signed a framework agreement with the Government of Canada. To summarize, that agreement stated that when our nation speaks to Canada, it speaks government to government, nation to nation. Based on that framework, we established a framework for future discussions on various topics.
After that, we had the fisheries agreement. How did that come about? We were invited to meet the government negotiator at the time, James Jones, and were asked if we were ready to consider the possibility of a rights reconciliation agreement on fisheries.
We agreed to negotiate this agreement. Initially, it was to be about five years, but it took us two years. However, along the way we realized that the agreement, which was supposed to be a reconciliation agreement, did not go that far for us. It was an agreement or a program specific to our nation, which began as a reconciliation agreement, but ended up being a fisheries agreement, an agreement to develop our commercial fisheries.
Once again, it is worthwhile for us, but, today, we are ready to go much further with regard to self-determination. With the Port of Gros-Cacouna, we are also working with the federal government, Parks Canada and various organizations, such as the Saguenay-St. Lawrence Marine Park. We want to be guardians of the river.
We are able to self-manage the fishery so we can fish based on the quality and abundance of resources. We are able to protect the resources as we have competent people to do it, and we can do it. We want to have more freedom in this role while continuing to have discussions with DFO. We could share our knowledge and our data. We want to go further. The time is ripe for moving much further towards self-determination. We can manage ourselves. As is the case for everyone, our objective is self-government. It is the perfect time to take a step forward.
Senator Cormier: Thank you very much.
[English]
The Chair: Thank you, Chief Tremblay.
Senator Christmas: Thank you, panellists, for appearing this morning. Mr. Chair, I have two questions. I would like to ask one question to the Mawiw Council and another question to the Bear River First Nation.
Ms. Levi, first I want to pass along my deepest condolences. I am speaking from the Membertou First Nation here in Cape Breton, or Unama’ki. When we lost Mr. Sock and Mr. Monahan, it was a shock for us here as well. It was a shock that they sent the crews out through the ice. It was an even greater shock when they refused to help with the rescue.
I was very disappointed when you had mentioned — and I think Mr. McIvor mentioned the same thing — that DFO has refused to use section 4.1 of the Fisheries Act. This committee that you are speaking to today spent a lot of time in amending the Fisheries Act, and we spent a lot of effort to include 4.1 to allow the minister to enter directly into agreements with First Nations on a bilateral nation-to-nation basis. I hear both of you saying that DFO lacks the political will, but my question is: Has DFO given you an official reason as to why they refused to use 4.1 in establishing agreements with the members of the Mawiw Council?
Mr. McIvor: I will try my best to answer that, senator. Thank you for your question and for your kind words about the loss of the community members. Chief Sock and Chief Alvery had a productive meeting with both Minister Murray and Minister Miller just recently to raise this directly. They were appreciative of the ministers taking the time. The chiefs were very forceful. This is what they are looking for, to have that conversation to implement. They are hopeful that the ministers will come back, in particular Minister Murray, and say they are willing to step up and have that exploratory conversation on how to use it.
I don’t know exactly what the reluctance might be based on. I think part of it might be determining where the authority comes from to enter into these agreements. As you know, senator, it lies in the inherent decision-making authority of the Mi’kmaq. There is no requirement for any delegation of authority to these Indigenous governments to enter into those types of agreements, and we think it would be a very good opportunity for the federal government to step up and implement UNDRIP based on Mi’kmaq inherent authority.
Just to build on that and to follow up on the question from Senator Cormier, this is a great opportunity to participate in cooperative federalism. As senators know, section 4.1 was originally between the federal and provincial governments, and Parliament expanded it to include Indigenous governments on an equal basis. It is not just based on treaties and that long history but based on Canadian law. The principles are there. They can be taken from how the federal and provincial governments have cooperated for decades, for 150 years. We can build on those principles and the principles of Mi’kmaq law to create a real important agreement that gets past this regular consultation and gets to real shared decision making. And I know Elsipogtog and Esgenoopetitj look forward to having that conversation with the federal government.
Senator Christmas: I would like to ask my second question to the representatives of the Bear River First Nation. It’s so nice to see you, Chief Potter and Mr. Zscheile. I have noticed with great interest how you have developed a unique relationship with DFO. I think Mr. Zscheile described that, how your community had come up with community plans and how you worked with DFO to come up with authorizations, and I think Eric mentioned that you had managed to develop a harmony between them. And it struck me that this is how the treaties were meant to operate.
Eric, I know that you have litigated Crown-Mi’kmaq treaties for many, many years, including Marshall. DFO, at the moment, is still promoting its Rights Reconciliation Agreements. And this approach that Bear River has brought forward — in fact, the whole Kespukwitk district — is based on a different model. Can you explain to us how this approach by Bear River and Kespukwitk is based more on the spirit and intent of our previous treaties, as opposed to the rights reconciliation approach by DFO?
Mr. Zscheile: Yes. Thank you very much, Senator Christmas, and nice to see you again, by the way. It is different. I think what happened in Nova Scotia is — as you said, I was part of the litigation of Marshall when I was a much younger man, because it was a long time ago. I think what we’re trying to say is we have analyzed Marshall over and over and over for long enough. We really need to sit down and start finding ways that we can move forward, even if it’s tentative steps, even if it’s just searching for the path, not knowing exactly where the path may end up.
But yes, you are right. What we mean is, when the treaties were put together, I think the way I saw it unfolding in court and the way I have heard it from elders is that you had two peoples. They both agreed that those peoples should be able to govern their communities the way they saw fit, because they understood their communities and they understood their social structures. But they also understood they had to share the land and resources, and the only way you could do that was through cooperation and discussion together, that that was the only way that things would move forward.
So when we looked at the RRA approach, it was rejected by the Assembly of Nova Scotia Mi’kmaw Chiefs simply because it seemed like a unilateral approach that wasn’t respecting the community understandings of what the Mi’kmaq wanted to pursue.
So when we started doing the approach through the Kespukwitk community — and I should give full credit to the Potlotek community and the Unama’ki as well, because they were certainly one of the first that started this up in that area. I have to say, I agree with the whole analysis on section 4.1 that Mr. McIvor has just provided. And I agree with the frustrations. I think the way we approached it here was the high-level discussions just didn’t seem to get anywhere. We were discussing principles. We were discussing sections of statutes. It just didn’t seem to get anywhere.
So in Nova Scotia, we’ve kind of taken a bottom-up approach and started saying, “Let’s find ways that we can actually get some success on the ground in what we’re talking about. Let’s see if we can dispel the fears of DFO, dispel the fears of the Mi’kmaq communities, dispel the fears of the commercial fishery and be able to say we think a livelihood fishery can be implemented in a way that’s a bit different than it always has been, but in a way that fully respects sustainability and fully respects safety on the waters.”
As Chief Carol said, Bear River has a working relationship with their non-Native neighbours. They have for generations. You can’t exist as a small community like Bear River without having good relations with your neighbours. So we’re trying to find ways that we can implement a fishery and continue that understanding of relationships that have been built over the years. So by working with the harvesters first, instead of — with due respect to someone like myself — a bunch of lawyers in a bunch of rooms trying to figure it out, we started working with the harvesters and we started putting together plans that made sense to them as harvesters. And then we started taking that plan up to see where we could go.
Senator Christmas: Thank you, Eric.
Senator Kutcher: Thank you very much to our witnesses today. I am speaking to you from the Algonquin Anishinaabe territories. We have heard much testimony about the roadblocks that have hindered the implementation of rights-based fisheries. Our report will include recommendations on how to move forward. What one or two key recommendations would you suggest that our report could include? I would like to hear from all three of our witnesses on that, please, if possible.
The Chair: We are getting close to our time, so I want to give all three an opportunity to answer, but just be conscious of the time.
Mr. McIvor: In the interests of time, I can go first and quickly. Two main things: One, there is a positive obligation to move ahead with implementation of a section 4.1 agreement. That’s there and government needs to be exploring that. Second, there is a positive obligation to do so based on the federal government’s UNDRIP legislation, that that is not just a forward-looking, aspirational piece of legislation, but it creates an obligation to do exactly this now. Thank you.
The Chair: Thank you, Mr. McIvor.
[Translation]
Mr. Tremblay: I concur with the previous speaker. I would simply like to add that we are hearing a lot about reconciliation agreements at the political level. I don’t know if it is the machine that cannot keep up, but it will take even clearer political direction for the machine to adjust.
Once again, our discussions with DFO people are fine. These people are used to managing standard programs. When it comes to reconciliation, self-determination and self-government agreements, these words do not seem to be part of their vocabulary and they do not seem to have the authority to move forward with this. The discourse is going to have to be adjusted. Thank you.
[English]
The Chair: Thank you, chief.
Mr. Zscheile: All I would say is to please be flexible and please come to the table in the spirit of reconciliation. That’s really all we’re asking. We can work out anything we have to work out as long as both parties are flexible and both parties are coming with the spirit of trying to achieve something that we all need to achieve based on the treaty relationship.
The Chair: Thank you, Eric.
Senator Cordy: I am speaking to you today from the unceded land of the Mi’kmaq people. Thank you very much to our witnesses today. It has been very helpful in our study, especially for me. I am a new person on the committee.
Ms. Levi, I heard you speak about shared participation; and Grand Chief Tremblay, you spoke about government-to-government discussions; and Mr. McIvor, you spoke about the need for true shared decision making. And we’ve heard the comment “nation-to-nation discussions” in meetings so that it is equals and not just consultations, but that you are actually part of the decision making.
Mr. Zscheile, I think you spoke about how we have analyzed the Marshall decision for over 20 years and we’re still having meetings without solutions. Yet we know that the legislation is there, so there is no political will. Senator Busson, in her question earlier, spoke about whether it really is the Department of Fisheries and Oceans that has the mandate to negotiate the implementation of the treaty, or should it be Crown-Indigenous Relations and Northern Affairs rather than Fisheries and Oceans?
I guess my second question, since we have a shortage of time, is: What role should Fisheries and Oceans play in the livelihood fishery?
Mr. McIvor: Thanks for your question, Senator Cordy. I think there is a role for both Ministers Murray and Miller on this. This is one of these situations where it’s not necessarily one ministry — for example, DFO — taking the lead. I think both ministries need to be there on an equal basis because this is fundamental to the implementation of rights.
It really does get to the question of how to implement the Marshall decision. I agree with the other witnesses — too much talk, not enough action. A reason there’s been so much talk is there’s been this focus on the word “moderate.” I think DFO and the federal government need to move away from that because they use it, it seems, like an excuse not to implement the right to the commercial fishery. They say, “We have to figure out what ‘moderate’ is first.” No, you don’t. You have to create the space for implementing the Mi’kmaq commercial fishery. If there is a need for a limitation, that is a subsequent conversation just like you have around conservation.
What I have seen in my work is that the focus on “moderate” has been used as a barrier to implementing the fishery. It is a commercial fishery. There is a positive obligation because it is a treaty right to get out there and do it, and that’s what the government needs to do in cooperation with their treaty partners. Thank you very much.
The Chair: Thank you, Mr. McIvor.
Senators and witnesses, that concludes our first panel. We’ve gone over a couple of short minutes. I would like to take the opportunity to thank each of our witnesses this morning. Certainly, you’ve given us some great additional information for our study.
As I try to do most of the time, I’ll say that if there is something that comes to your mind following our meeting today that you think would be worthwhile for us to know about or to have, especially recommendations we would be making to the department and the government, please feel free to forward it to the clerk. We can include it in our discussions on our study. Thank you all for taking time to inform us this morning.
Honourable senators, the committee continues its study of the implementation of Indigenous rights-based fisheries across Canada. We have the pleasure to welcome for our second panel Megan Bailey, Associate Professor, Canada Research Chair in Integrated Ocean and Coastal Governance, Dalhousie University, and Shelley Denny, Director, Aquatic Research and Stewardship, Unama’ki Institute of Natural Resources. On behalf of the members of the committee, I want to thank you for taking the time to join us here today. Following the presentation of your opening remarks, I’m sure members of our committee will have questions for you.
Megan Bailey, Associate Professor, Dalhousie University, as an individual: Good morning. Thank you for the invitation to join you today and speak about Indigenous rights-based fisheries. I’m a professor at Dalhousie University, located in Mi’kma’ki. My background is in zoology, fisheries management, fisheries economics and marine governance. Importantly, I’m neither Indigenous nor a lobster biologist. I have two boys aged two and seven, and I accepted this invitation to speak to you today in part because the invitation came but also because I feel a responsibility to them and to future generations who will be beholden to the ocean and the systems of governance we leave them.
A year ago, I co-developed a lobster sampling protocol with Sipekne’katik First Nation as part of their lobster conservation study to help fill what they identified as gaps in our scientific knowledge around lobsters, lobster fishing and Lobster Fishing Area 34, or LFA 34, outside of the commercial season. These gaps exist partly because we collect no information at this time of year, yet DFO has insisted that conservation of the stock is a concern and that treaty fishing outside the commercial season cannot be sanctioned. DFO’s own assessment of the lobster population in LFA 34 puts it at near-historic highs, and lobster fisheries here are Marine Stewardship Council-certified, meaning they meet the highest environmental sustainability standard we have. To date and to my knowledge, DFO has presented no evidence to Sipekne’katik that their treaty fishery is detrimental to lobster population status.
In response to questions around seasonality, DFO has developed a document justifying the current seasonal management regime for commercial lobster fisheries across Atlantic Canada. This regime focuses on four main things: controlling fishing mortality, protecting important life-history stages, keeping fisheries orderly and keeping science consistent. These are all important. In my opinion, none of these justifications bear direct relevance on our ability to manage lobster populations if fishing occurs at times outside the currently established commercial seasons. They only speak to our unwillingness to do so.
Given the lack of evidence around what fishing outside the commercial season might mean in LFA 34, Sipekne’katik took it upon themselves to collect data from their fishery to contribute to population assessments. I’ve been a part of that effort.
What seems to be happening is that Sipekne’katik and other First Nations are being asked to bear the entire conservation burden for sustainability of a shared resource. The imposed burden is not fair, equitable or just. It’s also not fair to burden commercial lobster harvesters with upholding all of Canada’s treaty responsibilities. When non-Indigenous harvesters issue cries about lobster conservation, they’re crying out for their livelihoods and the well-being of their families. A commercial harvester asked me in the fall of 2020 why I was speaking to the media about what I felt was a lack of a conservation issue. I told him I wanted to be proud of who I am in this moment for my sons. He countered with, “And what should I tell my sons? That I lost everything their grandfather worked so hard for?” In fact, he and I are not so different.
Let me take the opportunity to say that Atlantic lobster fisheries are fisheries-management success stories. The fishery has provided sustained jobs and income for harvesters across rural Atlantic Canada, and stock status has remained healthy. But it has also created inertia and a feeling that the way the fishery has been managed in the past and the way that benefits have been distributed historically remains the right way to do things today. That cannot be true if the management system is not respecting treaty-protected and court-affirmed rights for Indigenous people.
This leads me to the following question that I tackle in my research and a question that, I think, we share: How can we maintain a sustainable lobster harvest while ensuring the benefits flowing from lobster fisheries are distributed in a more just way?
I have five opportunity areas where steps forward can be made.
Number one is to recognize multiple forms of governance. The assumption that fisheries operating outside of DFO regulation are by definition unregulated is simply wrong. Indigenous laws and customs also guide sustainable resource use. Work here on new models for fisheries governance by Dr. Shelley Denny, for example, can be drawn on. Additionally, co-management systems across land-claims areas may provide alternative models to learn from, albeit perhaps not to repeat in their entirety.
Number two is that overall mortality matters. Treating one user group of a fishery as the straw that broke the camel’s back does not take into account a foundational principle in fisheries management, which is that overall mortality of the stock matters and not just marginal mortality of what some believe to be new entrants. If conservation is a concern, it’s because overall mortality is too high.
Number three is the need to change legislation. Since the Supreme Court found Donald Marshall Jr. not guilty of violations against the Fisheries Act in 1999, no legislation regarding moderate livelihood has changed, meaning that if he were still with us today and fishing as he did, he could and probably would be charged. Legislation must change. DFO’s conservation officers must be given a mandate to do their jobs justly.
Number four is diversifying economic portfolios. Lobster fisheries are but one vehicle for treaty rights. Diversifying to other fisheries and to land-based livelihood activities is essential. But even more than that, it is important to realize that lobster conservation may actually be as dependent on the overall economic prosperity and employment options for Canadians as it is on our fisheries governance regime.
Finally, implement a rights-based approach. The United Nations Declaration on the Rights of Indigenous Peoples and works by Indigenous scholars like Russ Jones, Ken Paul and Dr. Sherry Pictou on how Indigenous rights can and should apply to marine resources can provide a really strong starting point.
In closing, I’m not Indigenous and I cannot understand the pain of the struggle of having to fight for my rights every day. Many of us take our rights for granted and trust that our government will deliver on its promises; I know I do. But there are human- and Indigenous-rights obligations across this country that are not being delivered on. I appreciate the opportunity to appear here today, and I thank the committee for undertaking this difficult and important work. Thank you.
The Chair: Thank you, professor.
Shelley Denny, Director, UINR–Unama’ki Institute of Natural Resources, as an individual: Wela’lioq. Thank you for the opportunity to present today on the outcome of my research. For the past seven years, I’ve been exploring the exact question that the Senate is trying to address.
My research is part of a larger project referred to as Fish‑WIKS, which stands for fisheries western Indigenous-owned knowledge systems. It strives to examine how different knowledge systems can be harnessed and enhance fisheries governance across Canada. The project received the support from the Assembly of First Nations and the Department of Fisheries and Oceans.
I started my research with this question: How can Mi’kmaq rights to fish from our livelihood be implemented in Nova Scotia? My research indicated that it’s more than implementing a right. The issue is embedded in a larger, more complicated process than federal authority over Mi’kmaq treaty rights, as justification has shown.
This is a governance issue. It’s important to understand that governance does not necessarily imply government or the role of law and government. Governance is the capacity to get things done without necessarily having the legal competence to command that they be done. It is through the interactive processes in which society and the economy are steered toward collectively negotiated objectives.
Governance is further complicated, given the historical, political and legal contexts of Mi’kmaq Aboriginal treaty rights. For example, pre-Confederation treaties between the Crown and the Mi’kmaq did not extinguish Mi’kmaq sovereignty. The imposition of the Indian Act divided Indigenous nations into First Nations or replaced traditional forms of governance.
Legal pluralism plays an important role in the empowerment of a dual legal system and mutual rights for self-determination, as affirmed by sections 35 and 52 of the Constitution Act. This creates challenges for Mi’kmaq fishers to abide by Canadian law and it empowers the Mi’kmaq with the ability to make law. Furthermore, interpretations of case law limit Aboriginal treaty rights.
To cite the issue and develop a solution, I used the approach of “two-eyed seeing.” This refers to the use of the strengths of Indigenous and Western knowledge systems for the benefit of all. Importantly, two-eyed seeing recognizes that knowledge systems are underpinned by beliefs and influence values, and those two ways of knowing are often at odds because of conflicting values and beliefs. That interplay between knowledge systems often results in tensions that can lead to a greater understanding of the differences as well as the use of shared values and beliefs, which can be used to bridge knowledge systems to derive solutions.
Through my research, 52 interviews were conducted with Mi’kmaq fishers, leaders, individuals in related fields, Mi’kmaq and Indigenous organizations, individuals in federal and provincial departments and non-Mi’kmaq fishers. From these interviews, the Mi’kmaq emphasized the challenges of conflicting relations, disputing the legitimacy of the governing system and marginalizing Mi’kmaq fishers.
Importantly, there were subcategories of challenges for the Mi’kmaq participants. For example, while there were conflicting relations between Mi’kmaq and non-Mi’kmaq fishers, as well as between Mi’kmaq and DFO, internal conflicts were also revealed. Those are evident as division in political organizations and leadership, and the lack of coordination and collaboration with the Mi’kmaq Grand Council.
While both the Mi’kmaq and DFO provincial participants dispute the legitimacy of each other’s governing system — and by “legitimacy,” I’m referring to the perception of a political action as right or just by those involved, interested or impacted by it — internal disputes were also revealed. Mi’kmaq fishers also dispute the legitimacy of the Mi’kmaq governing system regarding the outcomes of consultations and negotiations with DFO, including agreements and licence conditions. Legitimacy issues prevail between the Mi’kmaq Grand Council and First Nations governments regarding jurisdiction and authority.
Furthermore, not only were Mi’kmaq fishers marginalized by DFO, but they are also marginalized within their own communities. Those challenges indicate low governability specific to how governance is operationalized.
Using a cross-case analysis of the governability assessments of two case studies focusing on salmon and lobster, three important insights were revealed. First, all three modes of governance, hierarchical, self-, and co-governing, are necessary to improve the effectiveness and legitimacy of current fisheries’ governance, despite differences in the vulnerability of the natural systems. Currently, there is only the hierarchical governments, as exemplified by DFO.
Second, governance gaps directly contributed to the challenges. The absence of co-governance contributes to poor relations and lack of cross-cultural exchange. The absence of self-governance contributes to marginalization and exclusion of Mi’kmaq fishers in governing interactions and decision making.
Third, the vulnerability as issues of conservation to justify infringement of Mi’kmaq Aboriginal treaty rights was not found to play a pivotal role in determining the appropriate governing mode. That is contrary to the Sparrow and Marshall decisions where the Supreme Court of Canada says that the infringement and restrictions to Aboriginal and treaty rights are necessary should justification be demonstrated for conservation purposes. Furthermore, DFO’s current hierarchical governing mode was not found to be legitimate or effective for governing Aboriginal and treaty rights.
Using the shared opportunities and results from the governability assessments, an alternative fisheries governance model was developed that respects Mi’kmaq and DFO as governing authorities. I refer to this model as Ankukankua’tu; this means “doing treaty.”
That model calls for four things: establishing a Mi’kmaq district-based self-governing fisher association with the appropriate disciplinary tribunal with the authority to act independent of Mi’kmaq First Nations; establishing a co‑governing mode between the self-governing fisher association and DFO, with responsibility delegated to the co-governing unit; enhancing interactions between Mi’kmaq fishers, the state and industries using two-eyed seeing forums; and establishing relevant policies for Indigenous fisheries that take into consideration the treaty right to fish.
Implementing a governance model can enhance legitimacy and effectiveness of the governance of Aboriginal treaty rights to fishing in Nova Scotia. It does not require changes to the current legislation or the Constitution Act; rather, the model requires willingness of the parties to share power and responsibility, and to “do treaty” as reconciliation. Wela’lioq.
The Chair: Thank you, Ms. Denny. We will now move to questions.
Senator McPhedran: Last week, our committee heard from witnesses who consistently talked about Canada’s interventions in rights-based fisheries for the purposes of conservation and preservation. Those witnesses — and again today, I think we heard something similar from Chief Tremblay in the earlier panel — really emphasized how government officials seemed to often use conservation as a reason to control rights-based fisheries and that, often, those claims could not really be supported.
What would each of you like to see changed in the current laws? I do acknowledge, Ms. Denny, that you stated in your proposal that you didn’t think any laws needed to be changed. My question is a little bit different from that. Are there changes in the current laws and the current DFO governance authority that are needed to actually achieve and respect conservation needs and outcomes?
Ms. Bailey: Thank you for that question, senator.
I’ve listened to some of the testimony, and I really appreciate that it’s online. Different things are happening. One is around legislation to co-govern. As I think Dr. Denny was saying, that exists, and the previous panel talked about section 4.1 in the Fisheries Act. However, I also think that there is the role that conservation officers play on the water.
What I’ve heard from some community members on the water is that conservation officers are just doing their job. It creates this conflict, whether they want to be removing traps or boarding boats, et cetera, they understand that their mandate is to do that because those fisheries are operating in violation of the Fisheries Act.
For me, there is both the enforcement on the water side where legislation has not changed, and that has not enabled conservation officers to step away and allow treaty fishing to take place, but I also think there are models within this country elsewhere and legislation in the Fisheries Act to allow co‑governance.
Conservation remains a reason to infringe upon the rights, in part because of that Marshall II addition that was put in there. It feels like it’s the only thing the fishing industry can get behind and DFO can say, “Yes, the Supreme Court seemed to tell us we can do this for conservation purposes.”
I haven’t heard from anyone that they don’t think that conservation of the resources is important. For me, it’s a non‑starter. Everybody wants lobster or salmon in the future. Conservation is a shared value. Using that as a reason not to cooperate or infringe on a right is completely inconsistent.
I’ll also add that fishing takes place outside of the commercial fishing season in LFA 34 for food, social and ceremonial rights. That inherent right is allowed by DFO to take place within the summer, but a treaty fishery isn’t. From the perspective of lobster, it doesn’t matter what tag is on the trap. This is an inconsistent position of the government as well, that one right should be infringed upon because of conservation but another right isn’t.
Conservation is not the reason. The stock is at an all-time high. I do think it is the reason the public can get behind it and the fishing industry can make those claims, so it exists. For me, it doesn’t hold true, as you say, based on evidence.
Thank you, senator.
Ms. Denny: I made the point that I don’t there is law that needs to be changed, but there is definitely a big policy gap at DFO regarding the implementation of a treaty fishery. I think a lot of the work can be done to support self-governing and to support co-governing for species that do have conservation issues. It’s not really about changing the law. It is about changing and developing appropriate policies.
One thing I don’t agree with is having one national policy for Indigenous fisheries. They’re diverse and complex, and treaties vary across the country. It is more appropriate to have more regionally based Indigenous fisheries policy relevant to the context of First Nations. Other than that, there are definitely some policy issues that could be addressed.
Senator Ravalia: Thank you to our witnesses. My question is for Professor Bailey.
You’ve certainly outlined very clearly the linkage between traditional knowledge and contemporary science with respect to the management of the fishery. Do you see a way forward where this process can be better integrated? In the case where Indigenous and traditional knowledge and contemporary science are in conflict, should one take precedence over the other? Thank you.
Ms. Bailey: Thank you, senator. Dr. Denny touched on two‑eyed seeing as one particular framework that can take the strength of different knowledge systems. They will not always agree. Dr. Denny has been very vocal about that. In some partnership projects that she and I work on together, there are collisions. It’s not always clear. But taking from each to fit the particular context and the problem, I think one additional thing — and it’s part of the larger project that Dr. Denny works on in Fish-WIKS — is the idea of knowledge being a system of knowledge, which is how you know what you know, and also that that is clearly linked to ontology and your perspective of where you belong in the world.
For example, seasonality, as we talk about it today and as DFO talks about it, is around the commercial fishery. That is the commercial season. The Mi’kmaq fishing season may be very different. My understanding is that Mi’kmaq seasonality for fishing would be spring, summer and fall down the Shubie fishing, and then, in the winter, coming back up the river and being more inland.
That, for me, is linked to your question around knowledge and knowledge systems, and the idea of Indigenous knowledge not just being the idea that we think in the Western knowledge system of data: What do they see on the water? It is also the cultural imperatives and ontology that is held within that knowledge system.
Seasonality is something that, again, is not opened up at all. Fishermen talk about seasons for a reason — commercial seasons for commercial reasons, sure, but maybe Mi’kmaq seasons for Mi’kmaq reasons. We haven’t had that conversation.
There are a lot of opportunities. The Fisheries Act clearly states that the minister shall — I can’t remember if it’s “may” or “shall” in this particular instance — incorporate Indigenous knowledge in decision making when that is provided, and recognizing concerns around the property and possession of Indigenous knowledge.
I don’t know it’s clear when one is better than the other. I think it’s context specific and, as Dr. Denny is saying, regionally specific. Until you are even at the table together communicating, cooperating and building a relationship, it’s extremely difficult to even have those discussions around pairing knowledge systems.
The relationship building is a place, and I think consensus-based processes are important. I’ve been a part of a lot of those. They take a long time, but it is an extremely powerful process to have people around the table who have different knowledge systems and views working over a long period of time and reaching a consensus on the give and take and the compromise, and being willing to sit there and work through that for the context and the resource question or the science imperative that you’re dealing with. Thank you, senator.
Senator Ravalia: Thank you very much. I appreciate that.
Senator Francis: Thank you to the witnesses for appearing. My question might have been answered indirectly, but I’m going to ask it again for clarity purposes. It’s for both witnesses.
What evidence does DFO use to justify limiting the exercise of the treaty right to the commercial fishing seasons? Is this decision based on more than market conditions?
Ms. Denny: I haven’t been involved in any of the discussions where DFO tried to justify limiting access to product. For the most part, it’s almost appearing as if it favours the industry.
I can understand and appreciate that, at least from a fisheries-science point of view, sometimes fishing in a certain season may create challenges for the lobsters themselves. At the same time, this does not necessarily imply that it’s going to take down the stock. I think there’s a lot of influence from one way of knowing and a one-world view in terms of how things can be done. I think that’s what’s really missing. There is a lack of appreciation for different ways of fishing and an understanding of why those things occur. There is a lot of misinformation underpinning some of those decisions.
Reflecting on what Dr. Bailey said, there are reasons for the season, and Mi’kmaq people have different reasons for their fishing right as opposed to a commercial fishing season. I think those still stand.
Ms. Bailey: Thank you for the question, senator. I fully agree with Dr. Denny. There are reasons, absolutely. This is within DFO’s justification document. Fishing within the moulting season may be an issue. Again, it doesn’t mean that you can’t fish then, but you need to understand the relative impact.
For example, I happened to be speaking with a biologist from Listuguj last week. They were talking about a study done in that region in the 1990s, comparing this idea of catchability — what proportion of the lobster population does one-trap catch — at different times in the year. They said that in the fall it is about seven times what it is in the spring. In part, that is because the lobsters are hungrier and just have come out of the moult. So you have this behavioural trait that makes them easier to catch.
That doesn’t mean you can’t fish them in the fall. As I understood from the conversation, what that means is that for every trap you put in in the fall, you have to consider that that is seven times as impactful as a trap that you put in in the spring.
That’s an important thing to consider. Again, that doesn’t mean you can’t fish in the fall — and fishing does take place in the fall — but it is an understanding of how that particular time of year contributes to the overall mortality of the lobster fishery.
There is no data, and I really mean that; I’m not exaggerating. DFO does a summer trawl survey in St. Mary’s Bay for one day in the summer, and it’s multi-species. They just bring up everything and get a sense. There is nothing between when the commercial fishery closes in May and reopens in November, so we don’t know. We don’t know the shell condition. We don’t know the sizes. We don’t know the sex ratio. We don’t know, when you put lobsters back with a soft shell, how likely they are to survive or not in Saint Mary’s Bay; that’s in LFA 34. So we don’t know any of that, and that’s okay. Collect data and try to find that out.
To say that conservation isn’t an issue, it is clear that fishing at different times of the year will impact a different mortality on the stock, and that’s absolutely okay. It just means you need to account for that. And the unwillingness to even collect data or be part of a data collection effort to try to understand what the impact might be is a bit unfortunate.
As Dr. Denny says, this idea of, well, because they go through a certain stage within the summer, you can, kind of, make a problem of that and say you shouldn’t fish, is not true.
DFO continues to, I think, point to those behavioural characteristics, the life history strategies of lobsters, and say it is not a time to fish without taking an actual look at data or evidence around what fishing would actually do to the stock at that time of year.
Thank you.
Senator Francis: Thank you both for your answers.
The Chair: I would like to advise, as I stated earlier, I have to leave for a medical appointment. Senator Busson will take over as chair of the committee. We will go to Senator Cormier for the next questions. Good luck with the rest of the meeting. Take care.
Senator Bev Busson (Deputy Chair) in the chair.
Senator Cormier: Thank you, Ms. Denny and Ms. Bailey.
[Translation]
I do not want to simplify the negotiation process at issue right now. We are talking about rights, laws and treaties in the discussions taking place with the federal government.
I want to hear your comments on this issue. I view this process more as a triangle with the Indigenous and non-Indigenous fishers involved in the commercial fishery, and the federal government at the top of this triangle. It seems to me that there are conversations going on between the Indigenous peoples and the federal government and also between commercial fishers and the federal government. However, I do not really see how, at the base, the Indigenous and non-Indigenous fishers are working together to find solutions to the issues raised.
What can the federal government do to establish the conditions that will make it possible for this dialogue to take place, a dialogue that I find to be important and that is the basis for the solidarity and the common work of our communities?
[English]
Ms. Denny: That’s a good question, senator, and it is also true that it is a gap in the current governance.
The model that I developed, Ankukankua’tu, does take that into consideration. Treaty permeates societies. It is not just between governments. It is intertwined in society. Within my model I have created that space for those interactions that can happen, and those are very important things to work out and to improve transparency between fisheries, which is something that we also don’t have. It is something the government can do.
I think the biggest thing the federal government can do is to help the industry understand that treaty rights are not only part of the Constitution, but they can take a pretty prominent role in fisheries themselves. By having them identified in the policies, it creates that legitimacy for the industry. I think by recognizing and making those treaties prominent in current policy, creating those opportunities for self-governing — which there are already opportunities for, but having them in the policy — and also the co-governing ensures that the fishers, the non-Mi’kmaq fishers and non-Indigenous fishers are part of those discussions but not necessarily part of the co-governing arrangement.
Ms. Bailey: Thanks, senator, for the question.
I really love what Dr. Denny just said about treaties permeating society, because we all have responsibilities there.
There was some testimony last week around DFO stepping away and the RCMP stepping away from that regulatory role and being protectors of, in this case, Mi’kmaq. That speaks to me in this context as well, and linked with what Dr. Denny is saying around education and laying the groundwork of what is acceptable and not acceptable behaviour.
I remember in the fall of 2020 — and I have to check the dates; it was something like September 17 — Sipekne’katik launched their moderate livelihood fishery, on September 18, the Fisheries minister came out saying this is not legal, and then Minister Bennett said, “Well, actually, maybe this is.” Then the Fisheries minister came out again and said this is okay. Then it was not okay. That kind of messaging is just extremely problematic. You had the commercial fishery and also Canadians wondering if this is legal or not legal. What are we supposed to understand about all of this?
Taking that back and leaving that space to protect this right, and just the messaging has been really problematic.
The commercial fishery, the same as the rest of us, received such little education around treaties and understanding of rights. I know your previous panellist also talked about education. I think that’s a hugely important aspect of it. There are multiple means of communication and cooperation. DFO launched a lobster round table where fishing associations, Indigenous organizations, academics and government can come together around even just science. I think that’s a good place to start with cooperation, where it takes the politics out of it a little bit, which is not possible. Having tried to do science around this issue, I recognize it is extremely political. But there are opportunities. There are round tables. There are management committees that take place.
I agree with that idea that the messaging has to be really clear from the government that this is a rights-based fishery that needs the space to take place and needs protection from the government in order to do that so harvesters and community members are safe.
Senator Cormier: Thank you very much.
Senator Christmas: I would like to thank both witnesses for sharing their expertise and their research and their experiences about the fishery. It is much appreciated.
I would like to direct my question to Dr. Denny. In your opening remarks, Dr. Denny, you mentioned that DFO was not effective in governing treaty rights, and there was an absence of either a self-governance or a co-governance approach in how we deal with the fishery. In your seven years of research, you landed on a model that is unique and very different where your finding is that the approach has to be district based — meaning the Mi’kmaq consider themselves broken up in districts across the Maritimes — and that a district-based fishing association should be at the core of this new model.
Can you explain why you came to that finding, and could you explain how that model could work in changing how we govern the fishery in the Atlantic?
Ms. Denny: The model recommending the district-based self-governing fisher association was important because there are a lot of conflicting relations between Mi’kmaq First Nations. It is not always in the best interests to have leadership involved when they can’t agree on things. There are some things that would help address that conflicting relationship.
The other thing would be that it would bring fishers out of the margins themselves. It would also create less confusion. There are seven districts in Mi’kma’ki. Four of them are in Nova Scotia, and one is on the border of Nova Scotia and New Brunswick. There would be four different self-governing areas.
Going back to the history behind the districts, Mi’kmaq basically had autonomy within their own districts to manage themselves around their resources in order to ensure that that resource was there for seven generations. But also, too, there is that opportunity to go back to traditional governments, to go back to having that opportunity to be governing as they had been before. The treaties and the governance that we had in the past was not ruled through the Indian Act. That is the current law today, but that was not the case back then.
The governance happened as part of people’s values, of people’s education, of how they were brought up. The fishers themselves, the communities themselves, also governed with the Mi’kmaq Grand Council, not by the Mi’kmaq Grand Council. That’s an important distinction because the grand council themselves were there to help people live in harmony, which is what Netukulimk is about, to live in harmony within their district, but also to the ability to share between districts if possible. It wasn’t just about organizing for one area. There is also the ability to move between districts while following the rules.
I think that would create less confusion. When you have 13 First Nations, you could have 13 different rules for fishing in one area, and that doesn’t make it sustainable. It doesn’t make it less confusing for people. I think by having those districts in place, they are still there. They’ve survived. They’ve lived through oral tradition. They have survived, and it is a very important fundamental governing geography that we could be using in order to get organized and to develop more place-based management regimes.
Senator Christmas: Thank you, Dr. Denny. In the previous panel we heard from Chief Potter from Bear River, and she mentioned the district understanding that she has with DFO involving Acadia and her community and Annapolis Valley and Glooscap and the Kespukwitk district. What are your thoughts about that approach and the way they have come to an understanding with DFO, mindful that all the violence that happened down the South Shore happened within that district?
Ms. Denny: That’s where most of my research took place, actually. I do think they are on the right path. There are some changes that could be made to enhance the participation of fishers within the governance themselves.
The only thing that I am concerned about — and I have looked at some of the self-governing Netukulimk fisheries plans — is that it puts a lot of emphasis on the First Nations having the responsibility, and not First Nations in its entirety but on the chief and council. It doesn’t really give the responsibility back to the fishers in terms of developing their rules. The rules are there. They have to go back to the chief and council, and I think it could be more of the fishers themselves being decision makers as opposed to the chiefs and councils.
Those are some little things that can be worked on but I think they are on the right path in terms of organizing by districts. They have an understanding of their own fishery. They live there. They have the local knowledge, the Mi’kmaq knowledge that they need in order to fish appropriately. They have established relations with their non-Indigenous neighbours, and I think those are important to maintain. Sometimes a lot of the conflict comes from outsiders who come in fishing those areas. It is not necessarily the community members who are there but other communities who might want to fish there fishing under different rules, in an area where that can be a source of conflict for sure. Thank you.
Senator Christmas: Thank you, Dr. Denny.
Senator Cordy: Thank you very much. It is really great to have the scientific-based information that you’ve presented today. Thank you both very much for that.
I wonder if you could explain the Mi’kmaq concept of Netukulimk, which encompasses sovereign laws and collective beliefs and behaviours in resource protection, procurement and management to ensure sustainability and how this has been applied in the concept of the livelihood fishery. I am also wondering if this concept fits in with DFO’s top-down and regulated approach to the fishery, which we’ve heard not just today but in all testimony, I would say, that we’re not having nation-to-nation dialogue concerning the fisheries, that it is top‑down.
Ms. Denny: Netukulimk is a very important value that the Mi’kmaq people have in terms of how we govern ourselves around the resources, around Mother Earth’s gifts. It is about living in harmony, so making sure that you don’t cause unnecessary harm to things, making sure that you don’t waste, also making sure that you share and that you give back in ceremony. These are some of the things that may not come through in a typical fisheries management plan.
These are the understandings and the teachings that we are brought up with. It comes through our language. It comes through communal life of being able to provide for people and having the understanding that that’s part of your responsibility as a Mi’kmaq person.
One of the things that differs, too, is that concept of responsibility. In a non-Mi’kmaq world, a non-Indigenous world, responsibility is always given to the government to ensure that resources are there, to have that responsibility over something. But in the Mi’kmaq world, the responsibility is with ourselves. We have that responsibility. So there is a mismatch in terms of top-down, bottom-up. Our responsibility comes from ourselves, not from our chief and councils, not from the Government of Canada. We are all responsible for Netukulimk, for living in harmony with Mother Earth. It is the sustainability of self.
Senator Cordy: Dr. Bailey, you spoke about how the sustainability question always seems to fall back on the Mi’kmaq people. I’m speaking about Atlantic Canada, but it seems to fall back on the Mi’kmaq people, and you said it is sort of the group seen as the straw that broke the camel’s back. We saw that in Nova Scotia in Southwest Nova last year with the arrest of Indigenous people who have the right to fish.
It is almost a PR kind of thing that we have to go about doing, which is not really fair, but how do we overcome that? Dr. Denny, you just gave a good outline of the Mi’kmaq belief in sustainability and that they take personal responsibility for ensuring the sustainability of the fisheries, but that’s not what comes across. In the conflict, the blame always seems to be going to the much smaller group of Indigenous fishers. Again, that was Southwest Nova, and the traps put out by the Mi’kmaq people in Southwest Nova was minuscule in comparison to the number of traps put out by the commercial fishery in that area.
Ms. Bailey: Thank you for the question, senator. I have a couple of thoughts. Lots of people have spoken out about this idea of a hierarchy of rights and privileges, right? The idea that overall mortality matters is one thing that’s really important. So if there is a conservation concern, who bears the burden of that? Looking at a hierarchy of rights and privileges, it would be that the commercial fishery needs to make space so that rights‑holders can implement their treaty rights and fish. There is largely looking at the fishery as a whole, but you have this pre‑existing commercial fishery — and I will speak particularly for St. Mary’s Bay and LFA 34 — that operates November to May. As you said, there are almost 1,000 licence holders out there, each with 350 traps. That’s a huge amount of fishing effort. To be a smaller vessel, Mi’kmaq-owned, where conflict is rife, to go out on the water at that point in time may not be the safest. It may not be the most economically fair idea for you as well because you are competing with other boats and your fuel costs, et cetera.
The intention for Sipekne’katik to try to fit their fishery in at a time that is safe for them could be economically profitable if that right to sell was there, because it currently is not there. They are trying to squeeze their fishery into whatever means that they can.
We hear this idea of behavioural and life history traits of lobster. Summer is maybe not the best time to fish, so if that’s true, which we don’t know — we don’t have the data — when would Sipekne’katik want to fish, realizing, of course, that with Bear River, Acadia and Glooscap, you have multiple groups trying to fish there?
I think this idea of regional makes a lot of sense and, again, bottom-up. How do these First Nations choose and work together around what fishing needs to take place and at what time of the year to meet inherent rights and treaty rights? What additional mortality is allowed for the commercial fleet and what does that mean in terms of traps? I guess that would be the opposite way of doing it. Because as it stands, we have a commercial fishery, and how do we squeeze in some extra traps or operationalize a fishery that can be safe for us? It seems like that’s the opposite way we should be doing things.
I am not sure that totally gets at your question, but thanks.
Senator Quinn: Thank you, Professor Bailey and Dr. Denny. These have been excellent presentations. I thank my colleagues for their questions because they have drawn out even more interesting information and points of view. I am a new member of this committee. In the last sessions I’ve been sitting through, there has been a diversity of views, everything from the role of the federal government as simply that of protecting the Aboriginal fishers to who should be creating the rules and making all the decisions.
I found today’s presentations informative because, for me, it is almost as though there is an understanding that the biggest issue we have is the lack of the implementation of the Marshall decision. It has been 21 or 22 years that interim measures have been put in place. I don’t know how long interim measures should be in place, but 22 years seems to be an awful long time. My background tells me that section 35 inherent rights are simply not being enforced or followed.
Today, I heard a few interesting concepts. One was from Professor Bailey on the district-based self-governing association, and backing that into what Dr. Denny and Professor Bailey said about data. Is there a model that allows data that comes from government and data gathered by First Nations to come into a common area where independent experts look at that data to help in that decision-making process? Is there a role for something like that? I ask that because, at the end of the day, the committee has to make recommendations.
Ms. Bailey: Thank you for that question, senator. Yes, I would absolutely say there is a role for that. Again, just speaking on my work with Sipekne’katik, the band did approach DFO to participate and contribute to the science study. As I understand it, DFO declined to do that. So the data that Sipekne’katik is collecting are their data. Data sovereignty is important. They belong to the band. Should the band choose to share with DFO, I imagine DFO would be very interested in knowing what some of those data are, and what the mortality is like in the summer.
But I will also say, for example, I had to put in a science permit to be able to sample lobsters on board, and DFO said that science could take place with traps that have FSC tags only. We could not sample lobster with traps that were taken with treaty tags. To be blocked from even collecting data around your treaty fishery doesn’t bode well for science cooperation. I completely agree with you that there is a huge role for trying to incorporate all of the data, and that’s essentially what has to happen.
You also hear the commercial fishery saying they are catching less in St. Mary’s Bay, and that might be because Indigenous harvesters are catching it first, but that the overall catch numbers are the same. That would not scream to me that there is a sustainability issue; it’s just a different allocation of who is catching it. But all that the commercial fishery sees is that their catch is going down, and that makes them worry that something is wrong with the stock. But someone else is just catching that lobster.
Again, when we don’t have all the numbers, it’s hard to understand what’s going on, so I would fully support that kind of recommendation and would love to see something that allows science cooperation to move forward.
Senator Quinn: Dr. Denny, earlier in the session you mentioned policy gaps, and we are drawing out some of those policy gaps through our discussion. If there are others that have not yet been drawn out from your point of view, or from yours, Professor Bailey, I am requesting that you submit to the chair any other views you may have. This has been a very helpful session and I appreciate it. Thank you.
Ms. Denny: I want to make a point to the last question regarding the opportunity to share data and to work together. There is a space for that in my model, and that’s basically a two‑eyed seeing interactive forum. It allows that space for people to come together to talk, share and learn and, most importantly, adapt to different knowledge.
The policy issue for DFO is significant because there is nothing there to help guide resource management or scientists in order to work in this area. There is a big policy on how DFO should be working with First Nations. There is more of a people‑type policy in terms of developing relations and understanding. But there is that opportunity to revise the Aboriginal Fisheries Strategy policy, which is a 1993 document, by the way, so it is quite old and needs significant revision. The authority of DFO is reinforced within that policy in that if you can’t come to an agreement, then DFO still has the authority to give the community licence conditions based on what they feel the community could use. Again, is that marginalizing in the power that DFO has over them? And then there is no communication, so most of those communities will reject that imposition of those licence conditions because, first, they didn’t agree with them, and, second, there is no communication of those licence conditions to the community members. So they are often in violation of their food, social and ceremonial agreement without their even knowing it because there is no interaction between the fishers and DFO, or between the First Nations and their fishers for those purposes.
I think the policy is something that DFO needs to acknowledge and support Indigenous fisheries and provide that opportunity to make it legitimate in the eyes of the non‑Indigenous fishers as well. Not addressing it just creates more problems in the long term.
The Deputy Chair: Thank you, Dr. Denny.
Senator McPhedran: I will summarize much of what we heard last week and some of what we heard this week by saying that the DFO legislation has systemic racism baked in to the extent that even good people can’t actually do much good. Do you think that legislation needs to be changed? Do you think a viable model is a shared responsibility with DFO, Crown‑Indigenous Relations and perhaps other departments?
Ms. Denny: As I said, the model that I have proposed is about doing treaty and not necessarily creating something new. It is new in terms of this century, an approach that the federal government could take. With UNDRIP around the corner, there will be a review of the laws. But there is a statement from DFO that this will not change their laws. They are looking more to develop better governing components and to build upon those, so I think that’s important.
Again, political will is really keeping it from going ahead. With Crown relations, the model that I propose does not require self-government agreement. There are differences between self‑governing, which is without the purview of governments, versus self-government, which is a government-to-government agreement. There are specific conditions under the self‑government policy that would —
The Deputy Chair: With that, Dr. Denny, I am sorry. We have a hard stop at 11 for our interpreters. I want to thank you and all the other witnesses for attending our meeting.
(The committee adjourned.)