THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Thursday, April 20, 2023
The Standing Senate Committee on Fisheries and Oceans met with videoconference this day at 9:03 a.m. [ET] to study the government response to the fourth report of the Standing Senate Committee on Fisheries and Oceans, tabled with the Clerk of the Senate on July 12, 2022.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to today’s meeting. My name is Fabian Manning, I am a senator from Newfoundland and Labrador, and I have the pleasure of chairing this meeting of the Standing Senate Committee on Fisheries and Oceans.
Should any technical challenges arise, particularly in relation to interpretation, please signal this to me or the clerk, and we will work to resolve your issue.
Before we begin, I would like to advise that Senate Communications staff are joining us today to take photos and videos of today’s meeting. The content, once approved, may be displayed throughout the Senate buildings and could potentially be used in future promotion of the committee’s work. Keep your smiles on. Is it agreed to allow Senate Communications staff to take photos and videos during this meeting? Okay. Thank you. The motion is carried.
I will now take a few moments to allow the members of the committee to introduce themselves.
Senator Kutcher: Stan Kutcher from Nova Scotia.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
Senator Francis: Senator Francis, P.E.I.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Cordy: Jane Cordy from Nova Scotia.
Senator Busson: Senator Bev Busson from British Columbia.
The Chair: Thank you, senators.
On March 7, 2023, the government response to the Standing Senate Committee on Fisheries and Oceans’ fourth report entitled Peace on the Water was deposited with the Clerk of the Senate. An order of reference to study the government response was referred to the committee on February 24, 2023.
Today, under this mandate, the committee will be hearing from the following witnesses: Dr. Pamela Palmater, Chair in Indigenous Governance, Toronto Metropolitan University; Rosalie Francis, Practicing Indigenous Lawyer, RFrancis Law, and Member of Sipekne’katik First Nation; and Constance MacIntosh, Professor, Schulich School of Law, Dalhousie University. On behalf of the members of the committee, I thank you for being here with us today. I understand that all three witnesses have some opening remarks, and once we hear those, we will have questions from the senators.
Dr. Palmater, seeing as you are here in person, I will give you the floor this morning first.
Pamela Palmater, Chair in Indigenous Governance, Toronto Metropolitan University, as an individual: It’s too bad I wasn’t with Constance and Rosalie, but I’m glad we’re on the same panel.
Thank you for having me here, senators. This topic is very important. I am from the sovereign Mi’kmaw Nation on unceded Mi’kma’ki. My home community is of the Ugpi’ganjig’s Eel River First Nation, and I, my family, my community and my nation care very much about protecting the fisheries, governing the fisheries and everything we can do to ensure that Mi’kmaq get the full rights of it.
I was also the co-author of a submission, with Rosalie and others, to the UN Committee on the Elimination of Racial Discrimination, which also called out Canada for failing to protect the Mi’kmaq physically as well as their rights.
In response to your report, Peace on the Water, first, thank you for that report. Thank you for actually incorporating the concerns, views, research and expertise of the people who came before you, especially people from the sovereign nations that are impacted by these treaty, Aboriginal and inherent rights.
The government response, overall, is an insufficient response. It is basically the same kind of response or submissions they give to the United Nations or any other committee: “Here’s a list of all of the programs we have and how much money we have spent.” There is nothing really about taking accountability for the failure to respect rights and how reparations are going to be made for that, not just going forward or what will happen going forward with an action plan but making up for what has been lost.
There are a lot of good words in the report along the lines of commitment, renewal, engagement and dialogue — all the usual — but there is also a problem with the wording. They talk about the opportunities for Mi’kmaq people as opposed to grounding it firmly in their rights — their inherent, sovereign rights; treaty rights; Aboriginal rights; and human rights. They also talk about accommodating Indigenous peoples and treaty nations as opposed to a full recognition of our self-governing rights, not just the fishing right itself. It is not just the act of it, but the right to govern and regulate it. They talk about Mi’kmaq people as wanting them to be advisory — serving an advisory role, serving on committees, serving on studies — but there is no real focus on self-government.
Ultimately, it is the wrong focus. They are looking at it from their point of view of how to indigenize DFO. It’s just like prisons do. It’s about how to bring more Indigenous art into prisons when the goal is to get Indigenous peoples out of prisons. It’s the same with DFO. It’s great to be hiring Indigenous people and having Indigenous knowledge, but you are not recognizing the self-government side.
There is also a problematic foundation. The starting point is that it’s a shared fishery. There is no recognition that Mi’kmaq people or the other treaty nations never surrendered their land, waters or resources in any treaty or otherwise. It is not a shared resource; it’s a stolen resource, And it is not even fairly shared at this point. There is really no acknowledgement of the legal context or the historical context in which it is set.
There is no accountability or admission of racism. If you are going to have a plan to be anti-racist, you need to say, “Here are all the ways in which we have been racist. Here are all the ways in which DFO, the RCMP, the Coast Guard” or any of these government organizations — “have acted in racist ways that discriminated, excluded and breached Indigenous’ rights.”
There is no plan to do any reparations. How are you going to make up for all of those breaches of the rights and for the failure to fully implement? You can’t just keep saying that you know you have to do more. What have you done? What have you done wrong, and how are you going to make up for it?
There is no urgency. All I see is that there will be an action plan and a report every five years. This could go on for another 20 years as they, right now, attempt to arrest and relitigate the treaty right that we have, which is what is happening.
Finally, there is no transparency. There is talk about negotiating and sharing responses, but they don’t. I want to know how much all of these other non-native fishers are making. I want a true accounting of every complaint brought forward. I want an accounting of every Mi’kmaq person they have ever charged for anything, whether it be a civil or criminal offence, what the sentences were and when they plan to expunge their records for doing something that is a treaty right. It’s no good to just say we need to do better. How do you make amends?
I would also like to raise a few concerns that, in the beginning, they are talking about treaty nations and a nation-to-nation agreement, but as you get further into the paper, they start talking about Indigenous groups and Indigenous interests as if we’re stakeholders, and we simply aren’t. We’re the true governors of the resource.
The Chair: Thank you, Ms. Palmater.
Rosalie Francis, Practicing Indigenous Lawyer, RFrancis Law, and Member of Sipekne’katik First Nation, as an individual: Thank you, Pam. That was great. What I’m going to speak to in my comments is likely going to mirror Pam’s. Nonetheless, I will provide my comments.
Weli’eksitpuk, senators and other presenters. Rosalie Francis teluisi. TleyawiSipekne’katik, Mi’kmaq community. So good morning. My name is Rosalie Francis, and I’m from the Mi’kmaq community of Sipekne’katik. I’m pleased to be here this morning to speak with you on this important matter. I’m speaking to you today from Mi’kma’ki, the unceded territory of the Mi’kmaq people. I also acknowledge that your meeting is being held on the unceded Anishinaabe Algonquin territory.
I would like to provide you with some opening comments with respect to the Mi’kmaq Aboriginal treaty rights at issue as addressed by your report, Peace on the Water, and Canada’s response to the report, specifically from DFO.
DFO has indicated that it is supportive of amending the Fisheries Act and identifies that the act was changed in 2019 with the inclusion of the non-derogation clause for the protection of Aboriginal and treaty rights, and rightfully so. However, it is important to recall that during that amendment process, the Senate heard from the Assembly of Nova Scotia Mi’kmaq Chiefs as represented by Chief Terry Paul and legal counsel Bruce Wildsmith, and they had made recommendations that the act be amended to include provisions on livelihood treaty rights. This amendment would have ensured that Canada, through this statute, had the obligation statutorily to address the implementation of livelihood rights. This amendment was not included within the final Fisheries Act amendments. Thus, we continue to have a statute that is responsible for the proper management and control of fisheries, but with no statutory authority for the exercise of livelihood rights.
This is a substantial issue that is key to the continued denial of the lawful exercise of livelihood treaty rights by the Mi’kmaq people, that being the lack of legislative authority further exercised. While the Mi’kmaq have a constitutional right to treaty fish for a livelihood — and this right has to be addressed and accommodated by Canada — Canada has never provided any statutory amendment to address this treaty right. This gap has resulted in what we have today, which is a characterization of Indigenous treaty fishers as unlawfully fishing, which, in law, is actually incorrect. As well, the characterization has provided DFO officials with the incentive to now harass and charge — which continues today — Mi’kmaq and Wolastoqey fishers as unlawfully fishing, where the act is actually seen as the end all and be all for authority of fishing management in Canada by DFO.
Nonetheless, DFO is fully aware that Indigenous fishers are not unlawfully fishing, as they have the constitutionally protected rights that take precedent over the statutory fishing rights contained under the Fisheries Act. This lack of legislative accommodation of the treaty right has left Indigenous communities in a no-win situation, where if they wish to exercise their right, they will be forced to be characterized as criminals by DFO, subject to criminal detainment, charges and seizure of their equipment. This criminalization of Indigenous peoples in the exercise of their rights has been noted by the United Nations in a special report and absolutely needs to be addressed.
In the response from Canada to the report, DFO also points out section 4.1 of the act as a potential tool for addressing the treaty livelihood rights through nation-to-nation agreements. But this statement is misleading and untrue, because in the 2020 treaty fishing dispute in Nova Scotia, the First Nation community offered DFO the ability to enter into an agreement under section 4.1. That could have ended the fishery dispute right then and there by providing a recognition of treaty fishing in accordance with treaty rights — nothing great there — and the development of collaborative fisheries management between the DFO and First Nations. DFO outright refused to consider such an option. For them to say now that 4.1 is absolutely such a great thing is misleading.
Canada is also now stating that section 4.1 does not provide them with the authority to enter into agreements with Indigenous people on lawmaking unless are part of a self-government agreement. If this is correct, then this further demonstrates how the act itself, as presently worded, does not accommodate treaty livelihood rights. This also demonstrates that the amendment that was proposed to the act back in 2019 by the Assembly of Nova Scotia Mi’kmaq Chiefs, if accepted, would have potentially provided the act with the jurisdiction to statutorily address the exercising of treaty livelihood rights agreements in accordance with section 4.1.
In response to the creation of a new legislative framework, DFO has indicated that the Aboriginal Communal Fishing Licences Regulations provides a framework to respond to rights recognition in relation to fisheries, which includes a response to Marshall rights, which they seem to deem in their response as an adequate response. But, again, this statement is misleading, incorrect and a mischaracterization of the communal regulations. The regulations provide the minister with the authority to issue a communal licence to a First Nation to access fishing, but this is inadequate to address the treaty rights issues and the character of the rights. The communal regulations only provide access to fishing. They do not recognize any rights of a nation, nor that the nation is fishing to exercise such rights. They do not recognize any authority for the First Nation to manage or govern themselves with respect to the treaty rights consistent with their cultural teachings. This is a continued colonial approach by Canada to Indigenous rights that does not provide any recognition or authority of the First Nation and absolutely flies in the face of reconciliation. For this very reason, many First Nations have refused to accept any type of licence from the minister, which is also the same licence that is relied upon in the rights reconciliation agreements. For Canada to continue to rely on the communal regulations as an avenue for treaty rights implementation is inconsistent with the character of the constitutionally protected treaty right and will not address the outstanding issues as they exist today surrounding Aboriginal treaty rights implementation.
The issue of the inherent right of Indigenous peoples to manage Aboriginal and treaty fisheries has been an outstanding issue for many years and has never been addressed by DFO. The Mi’kmaq and Wolastoqey have the inherent right to manage their Aboriginal treaty fishery rights. The management of resources would have been a practice that would have existed for thousands of years prior to the arrival of Europeans in our land and is an inherent right that has been recognized by the United Nations Declaration on the Rights of Indigenous People, articles 3, 4, and 26 specifically. DFO continues to purport that they support Indigenous management, and they cite the various DFO initiatives, as mentioned by Pam, such as AAROM, the Aboriginal Fisheries Strategy and others. But these initiatives are policy responses that provide no authority to First Nations over the rights fishery management consistent with their inherent authority. Where any type of management or authority is actually provided under these policies, it is minimal at best, and it’s completely based on the authority of the minister and not any inherent right authority of First Nations or a recognition of right. For DFO and Canada to argue that these initiatives address the inherent authority of First Nations to manage their rights is absolutely incorrect.
The Senate report has made a recommendation that CIRNAC, not DFO, should be the lead in discussions with First Nations on treaty rights implementation. But I am aware that when pressed on this issue, today, CIRNAC is continuing to direct such treaty rights implementation discussions to DFO. This is problematic for a number of reasons.
First, we know that the inherent right to manage treaty rights fishing is essential to the exercise of the right and as realized by First Nations in the development of their First Nations fishing management plans. But to properly implement this right, Canada must have the authority to engage in such discussions. Through their own admission, in Canada’s response on page 3, DFO is acknowledging that they have no authority to consider such issues. In fact, if we consider the mandate letter CIRNAC has from 2021, it is CIRNAC that has been provided with the mandate to consider self-government and nation-to-nation discussions with Indigenous nations. To me, those facts clearly demonstrate that if Canada is to implement treaty fishing rights consistent with the right to manage those rights, the discussions must happen with CIRNAC, not DFO. Discussions with DFO will not be able to address the issues that will lead to the proper treaty rights implementation and will continue to deny Indigenous people their rights.
Second, we know that DFO’s response to date to management issues has been merely policy-driven, and they argue that is sufficient. But that position also demonstrates that DFO refuses to recognize that the management of treaty rights must be based on inherent authority, and this lack of recognition of the inherent right will be an impediment for any type of management discussions from the get-go.
Finally, the continued entrenched reluctance of DFO as a whole to recognize Aboriginal treaty rights continues to exist and has been documented by the National Indigenous Fisheries Institute in their program review of DFO in 2018. It’s this mindset of DFO’s that is a form of systemic racism and, if continued to be left unchecked, will continue to impede any nation-to-nation discussions on the rights implementation.
For rights implementation to succeed, it must be driven by those parties representing Canada who, first, have a mandate to address that and, second, have a mindset that recognizes the inherent authority of Indigenous peoples consistent with the United Nations declaration.
Thank you very much.
The Chair: Thank you, Ms. Francis.
Ms. MacIntosh, please go ahead.
Constance MacIntosh, Professor, Schulich School of Law, Dalhousie University, as an individual: Good morning, and thank you for having me today. I’m quite grateful to be here.
I would like to start by acknowledging that the committee report recommendations are really helpful, in my view. They clearly seek to dislodge the status quo in a meaningful way, and I wish we were here today to talk about DFO’s first report back on how it’s fulfilling the recommendations, but we’re not.
I’m going to highlight the elements of Canada’s response that I found very disappointing, some of which have already been raised by Rosalie and Pam.
One recommendation was for a new legislative framework that recognizes inherent and treaty-based rights to fish, and DFO’s response essentially dismisses that as redundant by referring to regulations, communal fishing licences and so forth that Rosalie referred to. Your report documents in detail how those regulations, initiatives and policies are not accepted by most Mi’kmaq communities as anything other than being interim, that negotiations are often unproductive, agreements fundamentally unsatisfactory and, at most, offer access to commercial fisheries but don’t recognize a rights-based fisheries or governance rights. That approach is unacceptable, but they are continuing down that line.
A second recommendation that I thought was essential was integrating Indigenous laws into federal fisheries decision‑making processes. I was so happy to see that. That was a recommendation that reflected DFO’s lack of political will to recognize Indigenous governance, practices and conservation laws. DFO’s response was to state that section 4.1 of the Fisheries Act doesn’t authorize the minister to recognize Indigenous lawmaking in relation to fisheries. I find that response as not being offered in good faith in that the minister has the authority to propose changes to the laws under which they operate. Any legislative restrictions on DFO’s ability to recognize Indigenous laws is a restriction that the ministry imposes upon itself and declines to seek to lift.
One of your other recommendations was with regard to fisheries access. The committee, I thought very reasonably, recommended reallocating quotas as the way to address conservation issues rather than licences only being acquired through a willing buyer/willing seller scheme. The committee made that recommendation because of the copious evidence you received about the lack of willing sellers. The minister declined to engage with the reality of the lack of willing sellers. It is wrong that rights realization should turn on private parties deciding that they are willing to give up a privilege which they only possess because Mi’kmaq treaty fishing rights have been unlawfully denied for so long. So as long as DFO declines to reallocate rights, preferring this route, which we know doesn’t work, then rights are denied and access stays illusory.
With regard to the committee’s recommendations on institutional racism and safety on the water, as I stated in previous commentary with the Senate, my view remains that the heart of the federal government’s responsibilities under the Peace and Friendship Treaties with regard to fisheries is protecting Mi’kmaq people from interference, much less danger, as they exercise their treaty rights. The DFO’s response on safety — the call to make public Canada’s response to the UN Committee on the Elimination of Racial Discrimination — was disappointing. It might be accurate for the DFO minister to state that the decision over whether to release the response rests with the Minister of Canadian Heritage, but that’s not an answer. A meaningful answer is to commit to a transparent and accountable government, which, at the very least, is to meaningfully petition for the release of this response so that all of us can see their reply to the UN’s findings that Canada failed to protect Indigenous fisheries and communities from violence.
The DFO’s commitment to just continue to work with RCMP on community safety was similarly disappointing. As Pam mentioned, there was no acknowledgement of the documented failures to protect or any statement of how those failures would be remedied. Continuing with practices that have already been found to leave people unprotected is not sufficient. It’s not honourable.
One of the important recommendations in the committee report was that DFO report to the committee on its implementation of the inherent right to fish. DFO’s response was that it already reports to the Treasury Board and that, one day, it will be reporting to Parliament on the UN declaration act. Those reporting and accountability rubrics are designed by the federal government based on criteria that it designs about what to report on. I am sure Treasury Board’s reporting rubrics do not have anything to do with requiring DFO to describe steps taken to protect and support a rights-based fishery. Those are all financial accounting measures. DFO’s response with regards to the need to report on the implementation of UNDRIP, in light of their prior indication that no legislative changes are needed, seems to suggest they have already concluded that they already comply with UNDRIP so there won’t be any changes there either. The reporting and accountability desperately needed here are to Mi’kmaq communities in view of the criteria that the communities themselves have identified as relevant in light of the criteria that the communities themselves have identified as representing accountability.
That leads me to my last comment, which is about self-governance and co-management. We have already heard some very powerful and accurate comments from Rosalie and Pam on this, but I will just point out that in part of the minister’s response on the issue of self-governance, the minister noted that DFO had done a 2021 internal evaluation where they found that the needs of Indigenous communities weren’t being met and to meet them, they had to prioritize co-design, co-development and co-delivery. That reply is essentially as though it’s acting like observing their internal failure was an answer to the recommendation. Once again, we see nothing going forward. That report was in 2021, and we have heard nothing about what they have done since 2021 to act on the conclusions or how they would act on those priorities. That is part of why DFO cannot lead the charge here. How can communities have confidence when the minister’s own people reach these conclusions about its failures if the minister doesn’t present a strategy for acting on them?
I will close my opening comments there. Once again, I thank you for the opportunity to speak with you today.
The Chair: Thank you, witnesses, for some very interesting opening remarks that have generated a list of senators who wish to ask questions.
I always try to give as much leeway as I can. It is a very important topic. I am sure there are some very important questions to be answered. However, I ask that each senator ask a question and a follow-up to give everyone an opportunity to be able to ask a question. If we need to go to a second round, we will.
With that, I will start questions with our deputy chair.
Senator Busson: Thank you to everyone for being here. The amount of expertise in the room around the legal ramifications of our study, the government response, et cetera, is truly amazing. Thank you for taking the time.
My question is regarding this important discussion around the implementation of laws and the impact to the rights of Indigenous fishers in exercising these rights. We are discussing the government response to our committee’s report. In that, the minister committed “ … to reviewing and amending relevant laws in consultation with Indigenous people to fully implement rights-based fisheries.” Yet, in listening to all of your opening remarks, it seems that there is a woeful failure from your perspective regarding any of that happening. To your knowledge, have there been any visible efforts taken by DFO in response to the government response last year? In your estimation, has there been any attempt to meaningfully or substantively improve the lines of communication, given the direct and challenging recommendations of the report?
Ms. Palmater: That is a really important question.
You can see in the government’s response the inherent contradiction. On the one hand, it says they commit to review and amend laws, which sounds great, but they have already testified that there are no changes needed based on UNDRIP, for example, with regard to the fishery. Then they go on to say all of the reasons why they cannot do these things. “We can’t. We don’t have authorization.” So it starts out great — nation to nation, review laws — but at the end are all of the reasons why they cannot do it. That does not give a whole lot of confidence that they will.
Obviously, I do not speak for all of Mi’kmaq throughout all of Mi’kmaki, but I and all of the First Nations and people I work with on treaty rights and fisheries have seen no meaningful engagement about what specific laws they are going to amend, what the review process is and who is going to be involved in that. Do they have experts, or are they just talking to AFN? Because AFN is irrelevant to what is happening in Mi’kmaki unless all of Mi’kmaki say, “Yes, AFN, take it over.”
The Chair: To ensure that not necessarily everyone has to answer each question, I would just ask, senators, that if you are referring to one witness for your question, please name the witness. If you want to hear from all witnesses, we can do that as well.
Ms. MacIntosh, please go ahead.
Ms. MacIntosh: I would just add that it is very clear from the government’s response that they believe they already have adequate instruments to do what they consider to be a meaningful implementation of inherent rights through their policies and initiatives, which they have been unilaterally designing. It is imperative to send a very clear message back that those existing vehicles that the minister states are adequate are not adequate and that we need a radically different approach to be brought forward.
Senator Busson: Regarding the last few comments that Professor MacIntosh made about the approach being wholly inadequate, it may be a little deep in the weeds as a question, but in your studies and work done around this issue of Indigenous fisheries, what the failures have been and what is going wrong, have you ever had an opportunity to think about what an effective model might look like that would recognize the inherent rights of fishers and perhaps work with whatever other agencies, et cetera, to effectively reach some kind of workable situation?
Ms. MacIntosh: I can try to delve into this, but I think Rosalie and Pam are much better positioned than I am to speak to what is a meaningful implementation of Mi’kmaq treaty rights because they are Mi’kmaq.
I would start by saying that my reading of the treaty and the treaty obligations place Canada’s role as being that of supporting, enabling and protecting. That is one of the fundamental shifts that needs to take place. That is opposed to the current approach, which effectively seeks to regulate Mi’kmaq peoples as though they were any other private stakeholder entity. The first place to start is recognizing the inherent right as a right that comes with that full bundle of governance rights. I am not the one placed to identify and know exactly how those governance rights are exercised; that is determined by the communities themselves. Creating that space of recognition would be the first step.
The Chair: Would either of our other witnesses like to comment? Dr. Palmater, go ahead.
Ms. Palmater: That is a really good question. I’m sure Rosalie has a lot of good answers, because they have already done that. They have already created from the ground up their own self-governance model on this. That is exactly what it should be.
The alternative model, at least in Mi’kmaki — I’m not speaking for any other nation — is a Mi’kmaq-created and -led model that starts on the basis of self-governance, governance of the resource and a recognition of Mi’kmaq laws. Some might be jointly managed and some areas might not be; it might be entirely Mi’kmaq managed. The treaty right itself is important, but it is a much smaller piece of the whole picture. The whole governance structure, decision-making, lawmaking and enforcement, so to speak, have not been recognized.
As Constance and Rosalie said, this needs to be about protecting all of the rights, not just that one treaty right. There are Aboriginal rights, inherent rights, human rights — all of the rights, powers, legislation and jurisdiction under Mi’kmaq law — versus this stakeholder model where “we will talk to you, put you on some boards, program committees, lots of dialogue, education; we will accommodate some of you and give you some opportunities.” That is not a recognition of even the bare minimum of treaty rights, let alone the right to be self‑determining.
The Chair: Ms. Francis, would you like to comment?
Ms. Francis: Yes. Thank you.
If we are looking at what should be the response by Canada on this issue and how we move forward on the implementation, which is what I think we are talking about, it can come down to two basic issues. The first is a recognition of the right and not what DFO has done for 20-some years now, which is a policy response that, in fact, is inconsistent with their legal obligations. Can you imagine when we had the same-sex recognition in the courts and then Canada had just come out and said, “We’ll change a couple little policies here and there, and we’ll see if that works”? People would have cried, “Absolutely not. This is a human right that must be implemented.” This is the same thing. We have a constitutional and protected right here. But DFO, through Canada, continues to take a response like it is a privileged right that falls under the statute. No, no, no; back the bus up here. We have to go back to the basics, and the basics are a recognition of the right. We need to start there. Then from that, let’s build on management of the right. Again, we delve into another right there, and that is co-management based on inherent rights to manage that right. You can’t even get DFO to the table to get to those two basics. If you want to simplify it, those are the two basic issues.
Yes, communities in Nova Scotia — Sipekne’katik is one of them — have said let’s develop a management plan and look at actual studies. In fact, Sipekne’katik engaged with Dalhousie University when there was no data available on the lobster fishery and undertook a study with Dalhousie to say let’s look at those species if we are going to manage them properly. Do you think that DFO came onboard? Made an offer. Said let’s partner. You do not have to give us money. Nothing, absolutely nothing. Would not partner.
Those types of issues go to the merit of the entrenched, systemic racism that exists in DFO. If that is your starting point, we will be back here in ten years doing the same thing. There is going to be no implementation of the right. There are going to be more charges and more litigation, and that does nothing for Indigenous people and it does nothing for Canadians in seeing this issue put to rest.
There are two basic issues there: recognition of the right and the ability to manage the right. If we can have that kind of dialogue, I think that those are the beginning steps. I hope that helps.
Senator Francis: This question is in line with what Senator Busson already asked, but I will ask for further clarification to all three witnesses.
In your expert legal opinion, is a new legal and regulatory framework separate from the Fisheries Act and regulations used to govern the privilege-based fisheries needed to actually fully implement the rights-based fisheries of the Mi’kmaq, Wolastoqey and Peskotomuhkati, and how would that kind of co‑management and co-governance look? How would it align with UNDRIP?
Ms. Palmater: Thank you for the question. It is a really important one, because it feels like there has been a massive failure to envision anything else other than tinkering around the edges of the status quo and making it look a little bit Indigenous when there could be an entirely separate agreement. There could be, as in other issues, a sectoral self-government agreement. You do not have to deal with all of self-government in one big package and wait 25 years for that negotiation. You could, like in education, say that, sectorally, this is how we are going to self-govern our fishery and here is how it is going to work. The only way that is going to happen is they have to be open to it. They have to be open to completely rethinking it. I do not know that you can retool the Fisheries Act to be anything other than tinkering with the status quo.
Ultimately, what you are looking at is unrooting this idea that private, privileged, economic interests trump constitutional treaty and international rights every single time. That is why you do not see them talking about reallocation. Reallocation would be a nice, smooth transitional way of doing it for certain areas. But absolutely not. It is only if the privileged, private economic interests agree. That is simply not going to cut it. That is going to be, I think, the biggest barrier moving forward, the fact that the federal government empowers private, non-constitutional interests over constitutionally protected rights, and we have to fight for it every single time. It is going to lead to the exhaustion of all the stocks.
Look at what they did. They celebrated in their little report here. “Look at what we did. We only have 86% of elvers for non-Native fishers.” Now what has happened? They overfished it. They could not even manage it. Now, Wolastoqey people can’t fish elvers because of bad management and the failure to properly reallocate to Wolastoqey people. It is going to keep happening.
Ms. Francis: I think that this is a really important issue, this whole idea of legislative amendment and how you begin to even look at that.
The one thing that I would say first is that there has to be some type of change legislatively moving forward. But, second, I caution you with that and the idea that, currently, after the Sparrow decision, DFO went out and developed the Aboriginal Communal Fishing Licences Regulations. Under those regulations, there is no rights recognition. There is no self‑government recognition. There is no management. Those regulations are very insufficient to address Aboriginal and treaty rights. If we are to march down that same road, we are going to end up with the same result where you have a piece of legislation but it doesn’t address the two issues we’re talking about: rights recognition based on a treaty relationship, and the self‑government inherent right recognition. I throw that out as a caution because I get worried that when we talk about legislation and amendment, off we run to the races, and then we end up with something that is still not addressing the two key issues, and that could very well happen. We’re then left struggling with that, as we do now with the Aboriginal Communal Fishing Licences Regulations. I caution that.
At a minimum, if it had to happen, as much as the Fisheries Act is about a privileged fishery, there was the ability — and I go back again to 2019 when the Assembly of Nova Scotia Mi’kmaw Chiefs came to the table and suggested just minor amendments that would at least put some recognition language in that statute to say that there are some constitutional rights that actually exist and we have to look at them as Canada through the Department of Fisheries and Oceans or we have to acknowledge them. We’re not going to regulate, maybe, but at a minimum, they have to exist. Because what happens now? DFO runs out with their fishery guys and they say, “Sorry, Joe Bernard, we’re going to have to charge you because all we know is this Fisheries Act and this is our federal fishery management document and you do not fall under it, so we are charging you.” That is the gap that exists. I get really concerned about the idea of running away with the idea of legislation. At the same time, absolutely, there could be an amendment. There could be an enabling clause that is placed in that Fisheries Act if it is done correctly. Even when you look back, before the 2019 changes, there was a definition of “Aboriginal” that was removed, and the definition actually recognized food/social/ceremonial rights, and that is gone. That is minimal, but at least it was a recognition that there is a different kind of fishing going on here. That is where we need to focus. At least have somewhere that says, yes, these rights exist.
I hope that helps. Thank you.
Ms. MacIntosh: I think that DFO continues to understand itself as having authority to regulate all people who engage with fishing. That is the fundamental starting point problem.
With regard to Mi’kmaq fishers, the proper role should be one of meaningful knowledge-sharing with Mi’kmaq peoples with regards to stock, conservation strategies and so forth. Their major role in the Mi’kmaq fishery is not to regulate it; it is to protect people. It is to protect people from violence and a lack of safety at the hands of the non-Indigenous fishers. DFO should restrict itself to only regulating non-Indigenous fishers, people working in the privilege fishery. I would draw a very straight line about who is regulating whom here and what the proper government-to-government relationship should look like. Without that in place, we are just moving chips around a board and, as Rosalie mentioned, we’re not going to get anywhere that resolves the situation.
Senator Francis: This is for all three of you. In your expert legal opinion, are the short-term responses pursued by the federal government, including the so-called rights reconciliation agreements, equivalent to the full implementation of the rights‑based fisheries? Is there such a thing as gradual or incremental respect for constitutionally protected rights?
Ms. Palmater: That is a really important question, because governments make that argument all the time. “We recognize that First Nations women don’t have equality under the Indian Act but we’re getting there one slow step at a time.” You either have equality or you don’t. You either have a fully respected human right or you don’t. There is no half-respected human right. It is the same with treaty rights. It is nowhere near a full recognition of just that one specific treaty right, let alone all of the other treaty rights, Aboriginal rights human rights and Mi’kmaq rights in general.
It goes to show that their theme is, “Make them wait.” Just keep us waiting. Eventually, there will be no stock. They are privileging that private-interest fishery over and over and over again. It is, “Wait for legislation. Wait for this court case. Wait until we develop policy. Wait until we talk to all of the non-native fishers. Wait until the whole country agrees.” Look at what has happened. Look at what happened to our territory, to the fisheries, to the wildlife and to everything else. Ultimately, while we’re waiting, we’re being fined, our equipment is being seized and some are having criminal charges laid. We can’t wait, because we are devastating families. The government could not even remotely argue that even a tenth of Mi’kmaq people make a moderate livelihood — and I do not think that it should be restricted to that either — but not even a tenth.
It is nowhere near even remotely close to recognizing any kind of fulsome right to the fishery.
Ms. MacIntosh: May I add to that?
The Chair: Go ahead, Professor MacIntosh.
Ms. MacIntosh: The one thing that I meant to say and forgot to is that when I look at all of these policies and approaches that DFO currently takes, part of what I see as at the heart of the problem is that they don’t trust Mi’kmaq people to govern themselves. They don’t trust Mi’kmaq people to value and conserve the stock. There is a lack of trust and belief in Mi’kmaq people as people, despite a history of knowledge and practices that have successfully sustained them for endless generations in their territories. I don’t know how one can force trust into a legislative regime. The culture shift that needs to take place with regard to whoever is engaged — whichever level of federal government is engaging and working with Mi’kmaq people — is having trust in them. That was my comment. Thank you.
The Chair: Thank you, professor.
Ms. Francis, would you like to respond?
Ms. Francis: I will throw a couple of comments in there.
First of all, I agree 100% with what Constance has said with respect to the culture change. I would take it a bit further and go so far as to say that it is more than trust; I think it is still the colonial approach to Indigenous people and the failure to recognize Indigenous people as the First People of this country. Under our Mi’kmaq Wolastoqiyik Passamaquoddy treaties, there was a relationship established, nation to nation, and we have to go back to that if we are going to implement rights consistent with who we are as a First People. I would add that in.
With respect to the short-term agreements, again, it comes back to the problem that they don’t recognize the rights, even now, even with the amended ones that have been floating around. There is some “whereas” dialogue that, “Yes, Mi’kmaq have some recognized treaty rights,” but they still fail to take the step to say that the purpose of this agreement is about allowing Mi’kmaq to exercise their treaty right to a livelihood fishery. That recognition is still being held so closely by DFO, as if they are scared to give it up.
As for the whole inherent right to manage, no, they are not contained in those short-term agreements, but there is some language in there now that indicates that, “You know, we will have a discussion on management down the road.” It is still not saying that they know the First Nation has developed a management plan, and that will form a part of their co‑management, or anything of that level of commitment, which is really about inherent authority. The agreements, again, are a total failure in that respect. They are the same game.
They are very concerned about not exercising rights unless it is under that agreement. Yet, the agreement does not allow for the access. There is nothing there to say that X community will exercise their rights in this way. Again, you are going to have a gap.
What I think will evolve now for the bands who feel forced — and some of them feel very forced to sign these agreements because of funding issues and trying to build capacity at the band level. You are dealing with poverty. What is going to start happening is that community members are then going to be angry that they cannot exercise their rights because the agreement is restricting them for five years. Then they are going to say, “Okay, so how do we exercise our rights?” Then they will turn to the agreement, and there will be nothing there.
It is problematic — absolutely problematic. There is a solution at the table, and that is to work with those First Nations on an interim basis on the development of their management plans and co-management based upon recognition of the right and support that management on an inherent level. There is a space there. It is just that the mindset has to change. Thank you.
The Chair: I want to advise senators that we’re almost into our second hour, and we have a hard stop at 11:00. It is a very engaging conversation, but time is important here. I do not like to stop anyone or slow them down, but if I need to do so, I will tighten things up.
Senator Kutcher: Thank you to the witnesses.
This is a difficult morning. It has been a difficult process. I want to recognize the incredible work that Senator Francis and others on this committee have done — Senator Christmas is not with us now, but him also — in bringing this study forward. If I can observe us in the Senate and you helping us with this, we are now engaged in the challenge of reconciliation. It is really difficult stuff. Thank you.
Professor MacIntosh, I think you are right that we might not be able to legislate trust, but I don’t know if we are not able to legislate the conditions that will, over time, lead to better understanding that will lead to trust. Maybe we can think about that as well.
Inherent treaty rights fisheries management is the problem we are struggling with, but we understand the larger context. Professor Palmater, you talked about the accountability framework, which does not appear to be anywhere within DFO, not just on this topic but other topics as well that we have undertaken to study. We have heard very clearly from you that existing vehicles are not adequate to ensure the inherent treaty rights fisheries management. We understand that.
I want to see if my understanding is appropriate. Please help me out. The lead ministry for negotiations, nation to nation, really needs to sit with CIRNAC, and that was one of our recommendations. I would like to know if that is still something that all three of you feel is essential.
There is a second issue that I want your comments on. Professor Francis, you talked about the Fisheries Act and amendments, and whether the Fisheries Act could be amended in some way to recognize this right. I heard your cautions about the policy not necessarily following the legislation, but I don’t want that concern to trump the possibility that the Fisheries Act could be amended. I would like your thoughts on that.
I would also like your thoughts on the idea of whether or not it may be of any value to have an independent external review of DFO policies and procedures that would actually shine a light on this in another way that the Senate is trying to do as well. It has occurred to me that there are so many challenges and problems within DFO in terms of what the policies are, how those policies are enacted and how enforcement is done — it seems like it’s a huge problem for the minister, who is the public representative, to try to make this happen, and they may or may not be able to make it happen because the bureaucracy itself is so entrenched — and whether an independent and external review of DFO would address these things. That’s my one question for this group.
Ms. Palmater: In the government report, they talk about how negotiations are supposed to be “whole of government,” except when it comes to fish, because then that’s just DFO. Nobody else gets a say. It shows they have a very vested interest and too tight a rein over fisheries when it could literally be a whole‑of‑government approach. If you want it to be nation‑to‑nation, that’s exactly what it should be. Right now, it’s nation-to-Department of Fisheries and Oceans, not nation-to-nation.
Anything can be done with legislation. You could have 100 pieces of regulation, policies and all different kinds of legislation, but if the government itself continues to breach its own laws and constitution, then no amendment is going to be put into effect unless there is some kind of accountability mechanism that’s not in their own hands, so something that’s independent. It would be easy. You could create legislation today that enables and recognizes the Mi’kmaq right to be self-determining and govern their fisheries and all of that other stuff. They just choose not to.
Third is a totally independent review, where there is not a single DFO person on the review, that looks at everything and basically puts the whole package together. What the public doesn’t know is what I was talking about before. How many people have been charged? What are the circumstances when they are charged? Are they brutalized? Are they racially profiled? Look at the millions they spend on deep diving and putting microchips on lobsters to make sure that Mi’kmaq don’t fish them. You don’t see them doing that for other people. How many fines? How many seizures? How much fish has been lost? What is the amount of litigation and prosecutions? What is the number of infractions by non-Indigenous fishers, especially the larger ones? If you wanted to, you could have a really tight terms of reference and get a really good review, especially if you could compel information. I care less about testimony because they say what they say, but the actual information, the documents, facts and stats would be very eye opening. I think that would go a long way towards public education.
In everything that we have talked about today, it’s more medium- and long-term. We’re forgetting about the urgency of the interim. How do we stop arrests from happening? How do we stop seizures from happening? How do we allow Mi’kmaq people to fish and get DFO to just butt out of that whole business? We haven’t addressed that real, urgent, right now, short-term piece yet.
Ms. Francis: For the purposes of time, I agree with everything that Pam has just said. I know time is tight, and I agree that on the Fisheries Act amendments, even with the cautions, I think a recognition of some sort that there is a different fishery here has to be torn around and played with at some level. It really needs to be looked at, because the status quo absolutely is not working.
The Chair: Thank you.
Senator Kutcher: I want to make sure I understood what Professor Palmater said. Did you say that you felt that a review would be a good idea?
Ms. Palmater: Yes. Depending on the terms of reference. Yes, with very good terms of reference. Let us write the terms of reference, but yes, an independent review.
Ms. MacIntosh: I’m totally on board with an independent review with a fully public report. I can’t tell you how discouraged I am at the refusal to disclose Canada’s reply to the UN finding about discrimination against Mi’kmaq people. Ruling by policy instead of by law results in a complete lack of meaningful political accountability. It’s the reason why drinking water is so poor in so many First Nations communities. It’s the reason why these gross health disparities exist. It is because the only responsibilities that the federal government has acknowledged have, by and large, just been in the form of policies with no accountability measures. I would love this independent reviewing body to delve into the question of how the ministry should be held accountable and to whom so as to enable that level of scrutiny.
Senator Kutcher: We have been dealing with this issue of racism, and I’m going to use the phrase “ingrained racism” as opposed to “structural” because it’s ingrained in people as well as institutions. One of the things I was concerned about in the report is that it talks about creating programs. There is a real scientific concern that these may not be effective and actually may be harmful. Since you are all in the legal community, I am asking if you are aware of any other potentially effective legal approaches that could address ingrained racism.
Ms. Palmater: I think the biggest thing, whether it’s the RCMP, DFO or any institution, is accountability in the sense of monitoring, reporting and consequence. Without consequence, none of this is ever going to change. Especially DFO and RCMP officers. They act with almost 100% impunity, whether it’s violence, corruption or racial profiling. Nothing is going to happen to them. Nothing has happened to them. I mean, we have the Mass Casualty Commission on the RCMP. We have never done that on the DFO in any real substantive way, and I think we need to do that. You can have transparency without consequence, but it’s not going to make a difference. There needs to be hard-core consequences.
Ms. Francis: I’d like to build on what Pam has said about the accountability and actual liability of individuals who are, on behalf of Canada, undertaking racist acts and racist attitudes and the repercussions that needs to happen when those are founded other than saying that perhaps it exists and then just walking away. Then that grows because people realize that they can be that way and it’s okay. Then they keep continuing with this and it becomes entrenched. The accountability of individuals or departments that undertake these activities needs to be upheld. A policy that says that if you are working on a fisheries issue for Indigenous people or working with Indigenous people but you have racist attitudes towards Indigenous people, absolutely, you shouldn’t be there. I support that idea of that liability and accountability of individuals.
Senator McPhedran: Thank you to all of our witnesses, not only for being with us today but for the journey that we were on in being guided with your expertise in preparing the initial report.
I think it’s a very interesting idea to look at an independent external inquiry. I also have been around long enough to know that there may be some limited chances around that. I would like to focus on what perhaps we could do as another kind of independent inquiry. This is one of the strengths of what we do here.
I have two questions that are kind of dressed up as suggestions. One is to actually ask the ministers to come here, to ask the CIRNAC and Heritage ministers to come here and respond — for Heritage to respond to the CERD, the Committee on the Elimination of Racial Discrimination, and for CIRNAC to comment on the jurisdiction that the department and the minister have, and to be able to ask those questions directly. I think that’s within our authority. It’s consistent with our recommendations in the report. It’s something we can move ahead with as opposed to who knows when this lovely idea of an independent inquiry could actually be funded and started, whereas we have the capacity here to do more. If I may toss that out for feedback and thought, I would be grateful.
Ms. Palmater: That’s great. Any opportunity we get for this Senate — especially this Senate in the last decade, which has embraced and taken on all of these issues that Indigenous peoples have raised, but especially on this — if you have any power to get facts, statistics and documents from RCMP, DFO, CIRNAC, Justice Canada — even if some of those are privileged only to the Senate, for you to see all of that and to be able to share that as much as possible with the rest of us, that can only help. People who have nothing to hide, hide nothing, and they hide a whole lot of stuff. Even ATIP, Access to Information and Privacy, has become increasingly difficult. We can’t access documents and information even when we file appeals. Yes, everything — a Senate inquiry, please and thank you. We can give you a list of a hundred things that we want to know, but also the larger one.
I would say to not forget the interim and what’s going to happen tomorrow. We need to stop charging. We need to make sure that they have full access to Fisheries and not wait for a Senate committee or a bigger inquiry.
The Chair: Thank you.
Senator McPhedran, do you have a follow-up question?
Senator McPhedran: I do. It’s a little more vague, in this sense: Speaking for myself, I was underwhelmed by the minister from Fisheries when she came in response. I and some others expressed a sense that she had been well schooled in avoiding the key issues. I have mentioned the ministers for Heritage and CIRNAC. I now want to come back to the minister for Fisheries and suggest that our conversations with her should not be over. That was one response, and there are still a lot of outstanding issues. I’m wondering whether it would be appropriate for us to try to extend that conversation. I guess this is a question as much to our executive and our clerks as it is to our witnesses.
The Chair: I’ll answer from our end, for now. Certainly, any suggestion with regard to witnesses, whether from around the table here or from our present witnesses — or anybody else, for that matter — we take all those into consideration. We’ll discuss those at steering and see where time allows us to further our conversation on this topic — or any topic, for that matter. Again, the floor is open to anybody, during the meeting here or afterwards, to suggest some way of enlarging our work here. That’s not a decision I can make on my own, as chair. That will come to steering, and that suggestion will come back to the committee. I’m sure committee members are open to all suggestions. Thanks, Senator McPhedran, for raising those issues.
Senator McPhedran: If I can clarify, my question was as much about the scope of our authority as it was about our willingness.
The Chair: We can invite anybody that we want to. As you know, we can expand our work here that we have done so far. It falls under our order of reference with regard to what the Senate has given us permission to do. Again, that’s a decision that we’ll make at steering and bring back to the committee. I don’t see any limitations to what we can do, as long it falls under the order of reference that we have received from the Senate of Canada.
Senator McPhedran: Thank you.
If I may, I would very much like to hear from our witnesses in terms of their thoughts about possible next steps for this committee.
Ms. Palmater: If you have the power to compel documents, facts and statistics from any federal government agency, institution or Crown corporation that touches Fisheries, whether it’s DFO, Coast Guard, CSIS, RCMP, CIRNAC, Justice Canada — any of those institutions that even touch Fisheries all have to account about what’s happening, what isn’t happening, what their responsibilities are, and to be open about all of this information. Basically, any facts and statistics you can provide to us that we wouldn’t otherwise be able to get would help us.
Ms. Francis: The only thing I would point out is that the Senate report Peace on the Water was addressed to Canada, but you got a response from DFO. You didn’t get a response from CIRNAC or from anyone else. I think that speaks volumes. If I were in your shoes, I would be saying, “What is Canada trying to tell us?” I would make CIRNAC be accountable, and any other department that deals with Indigenous issues. Maybe the Department of Justice needs to come to the table. If they are the ones that are implementing and dealing with some of the issues you are raising, they need to share their thoughts on that. Just the fact that CIRNAC didn’t give you a response to your Peace on the Water report tells me that somehow they think they don’t need to be the lead or they think that none of these issues that you have raised affect them, which is incorrect. If I were a senator and I were in your shoes, I would be calling those ministers to the table.
Ms. MacIntosh: I would certainly tune in to watch those proceedings, let me tell you.
The Chair: Thank you.
Just for clarification, we can invite anybody that the committee agrees to appear before us. If for some reason someone doesn’t want to appear, in most cases we can compel them to appear before us. Where there is a bit of a grey area — we’re seeking clarification on that now — is whether we can compel ministers to appear. Again, I caution all people around the table and all those listening that we can bring people to the table. What they tell us and how they answer our questions is totally up to them in that regard. We will endeavour to discuss this further, look at possible witnesses and get clarification as to exactly who we can invite and if, for some reason or another, someone doesn’t want to appear, whether we can compel them to appear. We’ll discuss all that in due course, take it to steering and bring it back to the committee.
Senator McPhedran: For the sake of clarity, I want to frame this as a specific request to steering to address my suggestion of bringing all three ministers to this committee. I could add to that suggestion that we make quite a specific but not exhaustive list of questions that we would like them to answer, and we should give them fair notice of those questions.
The Chair: I will take all that to steering and report back. Thank you for the suggestions.
Senator Ravalia: Thank you very much to our witnesses.
Let me begin by acknowledging your concerns with respect to the government response. From your perspective, are there any aspects of this response that could be used as a starting point to establish trust and perhaps commence a process that might afford an opportunity to move forward in a direction that may be acceptable to the First Nations? Do you see anything in that report that could potentially trigger an opportunity for further discussion and end up with a result that is acceptable to the First Nations? Thank you.
Ms. Palmater: I obviously don’t speak on behalf of all First Nations, but in terms of understanding what we have been working toward, when they say they want to engage nation to nation, that’s great. Let’s do that. Let’s have nation to nation and not nation to Department of Fisheries and Oceans.
The other thing is that they said they would do a review and amend laws. Great. Let that happen on a nation-to-nation basis, with a timetable, outcomes, responsibilities, accountabilities and consequences.
But even with that, we must deal with the interim, because we know that they stretch that out as long as possible. There will be a decade of roundtables, dialogues and information sessions. In the interim, Mi’kmaq people need to be able to fish, and we need to stop with the charges and the seizures.
Senator Ravalia: My follow-up is this: Are there any examples that you feel might exist where, currently, Indigenous and non-Indigenous fishers are working collaboratively that could be used as a template for reconciliation?
Ms. Palmater: Do you mean like where DFO and a First Nation are working well together?
Senator Ravalia: Say a community of fishers who are non‑Indigenous working together with Indigenous fishers in a collaborative way. Is that happening anywhere that could be used as a template for future reconciliation as an example of a collaborative fishery?
Ms. Palmater: I think Rosalie could probably speak to that better from her specific experience on the ground, but people working together peacefully so as not to have violence or disputes and instead good relations with your neighbours is a different context for whether or not the Mi’kmaq people get to govern their own fisheries and benefit from the fisheries in the way they should. There are lots of small instances where you see people in communities working together, people working on each other’s boats and helping one another, but that’s in a context where the Mi’kmaq have no power. For safety’s sake, look at what happened during all of that violence and burning. It wasn’t just what you saw on TV. Kids were getting beat up at school, tires were being slashed, and there were assaults and threats happening for many months after that. I would put it in that context, but Rosalie could likely speak to that in a larger context.
Ms. Francis: Thanks, Pam.
Unfortunately, I cannot really cite too many instances where you have non-Indigenous and Indigenous fishers working together in a collaborative and cooperative manner. I think that’s the question. That must exist somewhere.
But I think Pam is also right that if it’s in Canada, it’s likely not based on any recognition of the right, although something may exist in B.C. We might have something there because B.C. has Aboriginal fishing rights recognized and some inherent management capacity as well.
But when I think about collaborative situations — and this is outside of the fishing realm a little bit — in Nova Scotia, we have a treaty right to hunt and fish. We have a large moose hunt every year, and that came about through the 1752 treaty win in 1985. As a part of that, for many years, that was completely managed by the Department of Natural Resources, and Mi’kmaq were very concerned about moose being overhunted, primarily by non-Indigenous hunters but there was also concern about our own Indigenous hunters, so they started a process where they developed a management plan over the moose hunt where a lot of the authorities for moose management came to rest with the Mi’kmaq in that process. It was very collaborative. The initiative was done through the province. There might have been some Parks Canada involvement as well because most of our moose hunt happens in a federal park. So I think there are possibilities where collaboration has happened and co-management authority has become a part of that. The hunt is done where non‑Indigenous and Indigenous hunters are hunting, very similar at the same time. There are things to build upon there and principles that can be looked at there.
That’s in a non-fishing capacity. With regards to fishing, we might look to the United States. I know there is the Great Lakes Indian Fish & Wildlife Commission, which is a huge fishing commission based on their treaty rights and their management over fisheries. They have substantial authority over how their treaty rights and fishing rights are managed. There are things that have been developed in other countries, at least in the United States, on this issue. Again, I would look to B.C. as well.
The Chair: Thank you, Ms. Francis.
I just wanted to advise senators that, yes, we can ask anybody to appear before us, including ministers. If they refuse for some reason, we can summon them to come before us. Again, I caution you with the fact that we ask questions. Whether their answers are what we want to hear, that’s another thing. We all know that we call it “Question Period” in the House or the Senate; we don’t call it “Answer Period.”
Senator Cordy: Thank you so much to the three witnesses. I know that when you make presentations like this, it’s hours and hours before you actually get here to make a presentation, and you are all so very well prepared, as you were the last time you came before us.
Thanks also to Senator Francis and Senator Christmas who proposed that we study this, because it’s certainly much more in-depth and there are many more issues that we should be dealing with as we continue along in this particular committee.
When I was reading the report from the department, which I was underwhelmed by, I was reminded of the saying that we seem to do the same things over and over again, and then we’re totally surprised when things don’t change. That seems to be the case here. We’re hearing the same words, but no change, or no significant change, is happening.
I’m from Nova Scotia, and I do remember the Marshall decision in 1999. I have spoken to people about it, and people have read our report and said, “Well, we need more time.” My response was, “Well, it’s been 23 years, so how much time do we need? Twenty-five years? Thirty? Forty? Fifty years?” It’s a long time — 23 years — and no significant changes in that period of time. Listening to your comments today, we really haven’t moved much beyond that court decision.
Again, being from Nova Scotia, I have the visual, Ms. Palmater, that you spoke about of the televised battles in Nova Scotia during the fishery, which isn’t helpful to anybody. You are absolutely right. It wasn’t just on the water. It also followed through to students who were hearing the same thing from both sides when they were in school, which is not a good thing for children to have to be doing.
How do we move forward from this? It’s been 23 years of talking about the Marshall decision, and we’re no further ahead. We get a report from the department that really is bureaucratic verbiage and saying something without saying anything. How do we move beyond that?
Ms. Palmater: The political decision has to be made to just do it.
Reconciliation is not about how we make everything nice; reconciliation is entirely uncomfortable. It is making people move over, it is sharing a bigger piece of the pie, it is disrupting the status quo — all the power, privilege and wealth that is everywhere but in Mi’kmaq hands. That is going to be sticky and yucky, and people will not like that. They will be uncomfortable with that and even angry about that. Obviously, look at all of the violence towards the Mi’kmaq fishers.
That being said, we can address that. Why isn’t the government engaged in public education that these are constitutional, treaty rights and internationally protected rights? The Mi’kmaq are going to be fishing, they are not going to be charged and you are going to stay away from them. You are not going to shoot at them, you are not going to burn down their boats and you are not going to destroy their traps, because we will be out there and do whatever it takes and whatever it costs to protect the Mi’kmaq. That is what they should have done all along. They have domestic and international legal obligations to do that. It is their failure to do just that. The UN Committee on the Elimination of Racial Discrimination said that Canada is falling down and specifically said, “What is your plan of action to protect the Mi’kmaq to go fish? What is your plan of action to repeal and amend any laws as necessary to make sure that the Mi’kmaq get to fish and are protected?” I don’t know. Does another planet need to say it? We have got the United Nations. These are people representative of countries all over the world saying, independently, we are looking at this and this is really bad.
Litigation takes a long time. It costs a lot of money. Experts are insanely expensive. We just have to stop with the delay. Long-term stuff, great. Long-term. But in the interim, these rules and regulations — you can pass an Order in Council and say that they are suspended, they do not apply to the Mi’kmaq while the Mi’kmaq fish, there will be no charges or fines, we will give back everything that we’ve seized, and that will be an impetus for people to come to the table. Right now, they have no incentive. Everything is good for everybody else, and it is just some Mi’kmaq people who are making trouble about it. We should do better as a country.
Senator Cordy: Thank you for that.
Professor MacIntosh, when you were speaking, you spoke about the heart of the issue being the protection of the Indigenous people. When I looked at the visuals, having watched it on television, it certainly didn’t seem like the heart of the issue in Nova Scotia when the Indigenous peoples were instituting their right to fish was the protection of Indigenous people. It seemed to me that the Indigenous people were, indeed, targeted, and they were targeted because they were fulfilling a right that had already been established by the court. How do we change that so that this failure to protect the Indigenous people from violence when fishing is, in fact, instituted and that it is the law that they are protected?
Ms. MacIntosh: Thank you for that question.
When I say that protection is at the heart of the issue, I am saying that it is at the core of the federal government’s obligations, which they have been failing to meet. We see different steps being taken to try to address that failure, for example, through these submissions to UN bodies. I am at a loss as to other tools if there isn’t the political will to respect the United Nations. We need the political will to change the legislation for accountability.
If the federal government continues to decline to recognize inherent rights and criminalizes them instead, I think we are going to see more action taken directly by Indigenous communities who aren’t going to wait for the federal government to recognize them and who aren’t going to wait for a nice, friendly agreement with a bow around it to come into place. It might be the emergencies that this sort of action results in that leads to some federal action.
I find it troubling and upsetting that this seems to be the main route that Indigenous peoples are forced into to have their rights recognized — placing themselves in situations where they know that they are going to be in danger, where they are not going to be protected and where they are going to face criminalization, which, as you mentioned, is the story of the Marshall case. It was all about being fed up with rights not being recognized and taking action instead.
To put things into a broader context, I do think that there has been, overall, some monumental shifts in Canadian culture and in legal culture with regard to Indigenous people’s rights. I can remember 20 years ago doing judicial education work with judges on section 35 rights and the judges thinking that it was just ridiculous. They could not get their heads around it. It was so absurd to them. We have seen incredible shifts, particularly in the last five years.
I am not at all going to give up hope. We are moving in the right direction. I do not think that the Senate would have a committee focusing on this issue in the past. I am optimistic on that front, but I am deeply worried about what is going to happen if immediate measures are not taken.
The Chair: Thank you, professor.
Senator Francis: Dr. Palmater, you mentioned some of this earlier, but I wanted to ask our witnesses to expand. What are the real and lasting costs to current and future generations of the continued failure to fully uphold Marshall, and what does this continued failure say about the commitment of the federal government and of Parliament Hill more broadly to reconciliation?
Ms. Palmater: Thank you for that question, because it goes to the heart of our relationship, our Crown-Mi’kmaq or Wolastoqey or Peskotomuhkati relationship. We know from the National Inquiry into Missing and Murdered Indigenous Women and Girls that it is a relationship based upon genocide, the most horrific crime that can be committed around the world. It’s not just historic, but ongoing. What is genocide? The intentional attempt to destroy a group in whole or in part. How do you destroy the Mi’kmaq? Take away their culture, take away their rights and take away their ability to protect the lands that they are on and protect the fish that are around them for future generations. They are constantly stripping that away.
It destroys individual lives. It is one of the things that I am most concerned about. At the higher political level it is important, but what about the people on the ground? What about the men, women and kids who are fishing, who are arrested, charged criminally, civilly or regulatorily and now have a record? That follows people around like a life sentence. It impacts whether you can work somewhere, volunteer somewhere, get to work with non-profit organizations and how you are viewed in your own community.
Unfortunately, Canada is very good at not just criminalizing who we are as Indigenous people, but isolating us from our own communities. So now communities say, “My goodness, look at all of this violence that is coming towards us. I wish these Mi’kmaq fishers would stop fishing.” They pit them against one another. Kids do not feel safe in school. They have said that they do not feel safe. They are getting bullied by the non-Indigenous community, and it is allowed to happen. Someone could have been killed during that time with the lobster fisheries when you saw that they were shooting with their rifles. They were burning down buildings, destroying traps and shooting at boats.
We don’t want more Dudley Georges. We do not want more of that. We want to prevent all of that. Imagine how Mi’kmaq people feel. We are not welcome in our own territory. There are high rates of suicide for a reason. People always characterize native people as lazy, not sticking up for themselves and not working hard. When we try to engage in our traditional activities and feed ourselves with good food, we are criminalized for doing it. The only way to exist as a Mi’kmaq person in this country is to be criminally Mi’kmaq. That is how it has always been. If you want to keep your kids out of residential school, you have to be a criminal and risk it. It still is today. If I want to be fully Mi’kmaq with all of my human and treaty rights, I have to be a criminal. CSIS knows it, RCMP knows it, and DFO knows it. It is about time that we stopped it.
Ms. Francis: The first thing that I would speak to is the real and lasting costs on our Indigenous communities from Marshall and what the rights were supposed to be for our community.
I go back to when the decision first happened. Chief Terrance Paul gave a press conference at that time, and he said, “Yay, no more poverty for our people.” That was 20-some years ago. That was the hope, because everybody thought we’re now going to be able to make a livelihood. We know that did not happen.
So here we are, 23 years later, and now we have what? We have, as Pam has mentioned, continued criminalization of our people in the exercise of their rights, which is unacceptable. There is absolutely no need for it. DFO knows that Mi’kmaq have these rights. They are recognized by the Supreme Court, or else why did we go — what is the use of the Supreme Court, then? If the rights are going to be recognized by the highest court in the land and protected by the constitution but ignored by government and treated as just an individual, what is the point of going? What is the point of the Supreme Court? That is what I would say. What is the point?
If we did this to anybody else, if we — I will go back to the same-sex marriage example. Their case was heard very close to the time of Marshall. It was recognized that they had that right to same-sex marriage. Legislation came about quickly, within a couple of years. Can you imagine if Canada, as the political realm, as the legislative body, sat there and just said, “Yeah, I guess they have that same-sex marriage. Yeah, maybe we will change a couple of policies,” but they continued to be discriminated against for 20-some years? Can you imagine? That would be considered unacceptable. There would be outrage. Yet, when it comes to Indigenous people, it is accepted that we have to just suffer and continue this fight even though we went to the highest court of the land and continue to be criminalized, and how dare we cry about that? How dare we?
I think that is the cost to us. Marshall was not the win it was supposed to be. It has caused so much — absolute poverty and PTSD in our communities. I know individuals who say, “I have PTSD from fishing, because now every time I see a DFO or an RCMP, I am like, oh, flashback. Here we go.” That is real. That is not made up. That is real. I look at them and I think, damn, what our people have to go through in order to continue to exercise a right that was established 500 years ago in our treaties, was recognized in the Supreme Court, yet here we are. That takes a toll on people individually, and that takes a toll on a community. And it leads us continuously into poverty and more dependence upon the government, and the colonial wheels keep turning. There is no other way to put it.
The sad thing is that there is a possible solution, even if it is minor. Even if it is minor. Even if it is just a small agreement that says, yes, we recognize the right. We recognize your ability to manage it. Let’s find some cooperation. And we cannot even get there. That is the sad part. What happens is Canada is continuing to just unfold that colonial robe where they have complete authority, and heaven forbid they give up any of that authority to First Nations. That is the principle of the issue here.
When I look over at the House and I look over at Parliament, I say to myself that that colonial mindset needs to change. When that colonial mindset changes, then we’ll see action. But it is just words right now. It is just pretty words.
Those are my comments. Thank you.
The Chair: Thank you, Ms. Francis.
Senator Busson: I will try to be brief.
In this conversation, we have shared your frustration about how things seem to be going absolutely nowhere and what we could do to change it.
My first question intimated your opinion about a model. I am from British Columbia, and I am not so sure that DFO would get a ministry of the month award there either. It seems, from my anecdotal observations and conversations with fishers and other people, that there are certain models of co-management in that area, specifically in my experience the Haida Gwaii area and the Haida people, the Nisga’a of the Nass Valley, the Shuswap people at the Shuswap specifically around sockeye management, and they somehow have found a co-management model. Could I ask for a comment on why that seems to be working and what is the difference? You would swear that you are in a different regime vis-à-vis fisheries rights on the West Coast. We have experienced it here asking questions even of DFO. I am wondering if someone would like to comment, please.
Ms. Francis: I can comment, if you want, on my preliminary observations.
I do not know the specific details of all of the B.C. agreements on co-management, so I will give a general perspective, but I am going to guess that one of the biggest perspectives and points behind this is dollars. When we are talking about issues in the Atlantic, we are talking about a lobster fishery that is worth millions of dollars, a snow crab fishery that is worth millions of dollars, and those millions of dollars have been to the benefit of the non-Indigenous community forever. So now we are talking about, how does that begin to be shifting over to Indigenous communities? That is a major factor that has come to play in Canada not giving up somewhat of an authority. Political pressure is put on those MPs from their constituents who are likely very much against any kind of sharing of the fishery and any kind of resource sharing, and those are the connections that are happening, which go into play of why the attitude is not changing. The attitude is not changing by MPs, by ministers, and the dialogue is still about continuing with the status quo.
Even when I look back at our rights on hunting and fishing, we never got the pushback on hunting. We got a bit of pushback on hunting and fishing back in 1985, but never like this. But there was no money involved. We weren’t taking money. We were just saying that we can hunt without a licence as long as we have our card. There wasn’t big dollars. But we’re talking big dollars now, and that is a factor that I think is really contributing to this whole issue. Those are my comments.
Ms. Palmater: It is also important to understand that there are very different circumstances in B.C. in terms of the First Nations there. Very few have historic treaties, for example. There is a different power dynamic there. The government itself passed legislation to implement UNDRIP, for example. You do not see that happening in the Maritimes, right? The Maritimes has been decades behind some other provinces. That is not to say that B.C. is perfect because, boy, it has got a lot of problems. Keep in mind there are big-ticket items there that are not directly related to fishing agreements, things like all of the First Nations that have opposed the Trans Mountain pipeline who have gone all the way to the Supreme Court of Canada. So the government has a little bit more incentive to say that, “Okay, we’re fighting you here on pipelines while you are trying to protect your fishery, so here, let’s have this lucrative agreement over here.” That is literally how the government works, how they are going to agree with you or not.
If you talk to the people on the ground — I work with a lot of land defenders, water protectors, fishers and others — there have been numerous protests, and they have serious issues with DFO. We try to work collaboratively. You would not know that otherwise, what DFO is trying to do behind the scenes, what they do at one end of the country versus the other end of the country. There is a lot of concern. Look at how long the Union of British Columbia Indian Chiefs, which represents a large number of First Nations in B.C., had to fight against salmon farms and the destruction of fish and wildlife and other things, or the Tsleil‑Waututh have been trying to protect the southern resident killer whales.
There are massive battles going on out there, so the government has a little more incentive to sit down and say, “Well, we will give you a little deal over here while we’re fighting on these big things,” where they have been oppressing us for 500 years here in the Maritimes. They have been able to do it, all of the provinces, the Maritime provinces. I’m from the Maritimes. I love the Maritimes. The provincial governments themselves are very anti-Indigenous rights when you think about all of the court cases we have had to have. The attitudes are also very different. You get a lot more racism. There are many names I could call it, but old-school hate, racism and power. You have to look at the people who are working in DFO, working in the Coast Guard and working in the RCMP, who they are, what their backgrounds are. That is not to say B.C. does not have any problems, because it does. It has significantly different factors influencing what happens on the smaller agreements.
The Chair: Thank you, Senator Busson, for being brief.
Senator Kutcher?
Senator Kutcher: I understood the comment, chair, and I will be uncharacteristically brief.
The Chair: Our time is tight.
Senator Kutcher: I want to follow up on a point that Professor Palmater made on education. When I speak with fishers in my community, some of whom are my neighbours and friends, they are good people. I am constantly struck that they just do not know about inherent rights-based fisheries. They just do not know about it. In our own report, we could have done better on this topic, but maybe we will have a chance now. These educational programs, I completely agree with you that they are essential and that our federal and provincial governments have not done what needs to be done on them. The question that I have for the three of you is as follows: Who should create these programs; who should deliver them, and how should they be evaluated?
The Chair: Once again, witnesses, we are down to a few minutes. If you could be as concise as possible with your answers, I would appreciate that. Thank you. Senator? You never know.
Ms. Palmater: Senator Palmater, would you speak next, please? Yes.
Public knowledge and education are important. K-12 education, university education, general public education, and the media, all of that is important; however, it has been the primary recommendation in every report that has ever been done in the last, what? Six decades. If we wait until everyone knows and understands the complexities of the law, we will be waiting another 100 years. That is not to say it is not important.
However, if you look at all of the surveys that have been done asking Canadians what they know about Indigenous issues, they know we have rights that are being violated. They may not know the details of it, and not all of us do. They know that we’re impoverished. They know that we experience racism. That is the vast majority of Canadians. That does not necessarily translate into, “Oh, okay. Well, I know that you have rights, but I do not want to give up my fishing licence.” Right? So it is okay to know something and be aware, but how does that translate into action or their part individually on reconciliation, or whether or not they push governments to act? Governments take advantage of that fact that they are not saying that, hey, we could easily address all of these issues. Land back does not mean that you are going to lose your home, and all of those other things.
In terms of who should be doing it? It should be us. We design it. We should be funded to design it. It should be an ongoing thing and on every broadcaster in the country. Although it is the federal and provincial government’s responsibility, where we want to assume that role, we need to develop the materials. Otherwise, I fear for what they would share for public education.
The Chair: Thank you. We will be cut off in a few moments so, Ms. Francis, would you like to make a comment?
Ms. Francis: No. I am good.
Ms. MacIntosh: I would add that although I completely agree with Pam in terms of the construction of any sort of an educational intervention coming from Mi’kmaq people, I think that we cannot just keep piling work on the shoulders of Mi’kmaq people to fix the mess that non-Indigenous people have put them in. I certainly see a role for non-Indigenous peoples in carrying the charge and doing our part to educate our neighbours directly or to otherwise encourage participation in whatever kind of educational initiative might be present.
The Chair: Thank you. I sincerely apologize for pushing things along. We are down to a few minutes. Everything fit into our time slot. I am very happy with that.
I thank honourable senators and witnesses for your cooperation. It has been an engaging conversation, for sure. It shows the amount of interest that is around this table when we go right to the limit of our time here. We will take the suggestions that have been made from our witnesses and from honourable senators over the next short period of time, discuss them with steering and see where we go from here. It is a very important topic. We are delighted that you took the time today to join us and help us with our work. Our conversation has been enlightening, engaging and informative. We thank you for that.
With that, the meeting is adjourned.
(The committee adjourned.)