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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 8, 1996

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[English]

The Chairman: I'll call the meeting to order.

Good morning, ladies and gentlemen. Early on, when we were discussing the agenda for the committee, I think it was Mr. Cummins' suggestion that we bring in officials from the Department of Justice and the Department of Fisheries and Oceans to get an interpretation of what has happened with the three court decisions that came down during the summer and what effect they might have on government policy.

We have with us today Charles Price, senior counsel for native law; Pat Chamut, assistant deputy minister of fisheries management; Ruth Grealis, legal counsel for the Department of Justice; and Edward Gale of aboriginal affairs in the Department of Fisheries and Oceans.

Maybe Mr. Price would begin.

Mr. Charles Price (Senior Counsel, Native Law, Department of Justice): I've been asked this morning - at least it's my understanding - to provide a briefing and summary of three recent Supreme Court decisions that, as you mentioned, came down in August 1996. They're already being known as the Van der Peet trilogy. They concern claims to aboriginal rights to fish commercially.

In these cases, the Supreme Court of Canada was able to expand upon and refine its 1990 decision in Sparrow v. The Queen concerning the effect of section 35 of the Constitution Act, 1982. I suspect that members will be familiar with that case and also with this section, which is the provision in the Constitution Act of 1982 that provides constitutional protection for existing aboriginal and treaty rights.

It's my intention to approach this in the following manner under four main headings. First, I'll just outline the principal issues that were before the court in these cases. Second, I'll provide a brief summary of each of the cases and the disposition by the Supreme Court. Third, I'll outline the key findings of the court on the principal issues that have been identified. Then I'll say something briefly about the legal effect of the judgments.

If I can turn first to the principal issues before the court, I'm sure members are aware that there are many problematic areas in the sphere of native law. Of course, particular cases don't deal with all these issues; they deal with the specifics that are before them. In these particular cases, I think there were three principal issues before the court.

The first issue related to the existence, nature and scope of aboriginal rights. There was a recent occasion when the Supreme Court had the opportunity to really expand on what aboriginal rights consist of and how aboriginal groups are to go about trying to establish the aboriginal rights they claim. That was the principal issue dealt with in the Van der Peet case.

The second principal issue concerns the extinguishment of aboriginal rights. At least until 1982, Parliament at least could unilaterally extinguish aboriginal and treaty rights, and the decision in Gladstone further clarified the law on the issue of extinguishment.

The final principal issue is the fiduciary responsibilities of the Crown, at least in the context of justifying infringements of rights that are protected by section 35. There are many aspects to the Crown's fiduciary relationship with aboriginal peoples. The court didn't deal with all of them; it just dealt with that particular aspect of fiduciary duty to justify infringements on the constitutionally protected rights.

Those are the three issues. I'll turn to a summary of the various cases and their disposition.

First is the case of Van der Peet. Mrs. Van der Peet is a member of the Sto:Lo First Nation in British Columbia. She was charged under the British Columbia fisheries regulations with the unlawful sale of fish caught under an Indian food fish licence. She apparently sold ten salmon, which had been caught by her common-law spouse, for $50. She argued throughout that the regulation prohibiting sale was an unjustified infringement of her first nation's aboriginal right to fish for commercial purposes, and that on such a basis, it wasn't applicable to her.

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What the court did with that argument - in a sense, this was the principal issue or the court's findings - was not so much decide whether or not she was able to establish an aboriginal right to fish commercially. It more or less decided whether the Sto:Lo's aboriginal right to fish extends to an exchange of fish for money or other goods. In doing that, the court seemed to distinguish between what I might call a slightly more limited right and a full-blown right to fish commercially, but I'll get into that a little bit later.

In any event, based on the evidence before and the findings of the lower courts, the Supreme Court found that Mrs. Van der Peet had failed to demonstrate that the exchange of fish for money or other goods was an integral part of the distinctive Sto:Lo culture that existed prior to contact. As such, her claim did not constitute a section 35 aboriginal right. The rest of the section 35 analysis was therefore not engaged, and they didn't have to decide whether it had been extinguished or whether any infringement was justified.

In the Gladstone case, two members of the Heiltsuk First Nation at Bella Coola arranged to ship 4,200 pounds of herring spawn on kelp to Vancouver. I'm sure I don't have to tell members about herring spawn on kelp. I'm not that familiar with it myself, but it is a fish product that apparently has gained considerable commercial value in the last few years because of the Japanese market.

Anyway, after an unsuccessful attempt to sell part of that shipment, the whole shipment was seized by DFO officials and was subsequently sold for approximately $144,000. Under the Pacific herring fisheries regulations, the defendants were charged with unlawfully attempting to sell herring spawn on kelp that had not been caught pursuant to a commercial licence, a valid professional licence. The defendants in turn argued that the sale of herring spawn on kelp was part of their constitutionally protected right to fish.

In this particular case, there was considerable evidence before the lower courts of pre-contact trade in this particular fish product, and a statement that seemed to catch everybody's attention I think came from one of the defence expert witnesses. He said that there were cargo canoes loaded with tonnes of this fish product, that it was a part of their pre-contact activities and part of their culture.

On the basis of that kind of evidence, the court held that the exchange of herring spawn on kelp for money or other goods was a central and significant defining feature of the Heiltsuk culture prior to contact, and it was an activity that was carried out on a scale that was best described as commercial. So in a similar manner to Van der Peet, they made this distinction between a more limited right to simply exchange fish for money or other goods and what I've termed as a full-blown commercial right. And while they maintained the distinction in this case, they essentially found that the Heiltsuk had established a commercial right to sell this particular fish product.

Since the court concluded that this activity was an integral part of the Heiltsuk's distinctive culture, and that they therefore had an aboriginal right to sell this product commercially, this necessitated the engagement of other parts of the section 35 analysis. In that analysis, the court found that the aboriginal right established had not been extinguished. Sorry, first of all it found that the fisheries regulations that were in play did present a prima facie infringement of the right. And regarding justification of the infringement, the court found there was insufficient evidence to come to a conclusion on that point and directed a new trial on that issue.

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The final case, NTC Smokehouse, involved a corporation rather than individual aboriginal people. That company owned and operated a fish plant near Port Alberni. They purchased approximately 120,000 pounds of chinook salmon from members of the Sheshaht and Opetchesaht First Nations. The fish they bought had, I understand, had been caught pursuant to Indian food fish licences. It then sold approximately 105,000 pounds of that fish to other fish processing companies. NTC was charged with the sale and purchase of fish not caught pursuant to a valid commercial licence or an Indian food fish licence, both offences contrary to the British Columbia fisheries regulations.

In a fashion similar to the Van der Peet case, in a sense, this case applied the Van der Peet principles. The court held that the evidence before the lower courts did not support the claim of an aboriginal right to exchange fish for money or other goods - this is the lower form of right - and that conclusion necessarily disposed of a claim to a broader commercial right to fish.

Those are the summaries of the three cases. I'd now like to make reference to the key findings of the court, based on the three principal issues I mentioned at the outset. Those are the existence of the aboriginal right, extinguishment, and fiducial responsibilities.

About the existence of an aboriginal right, it's important to go back to the Sparrow decision, which outlined a framework for analysing section 35 claims. I touched on it before, but I'll go over it again. There's a four-step process. Does a section 35 right exist? If it does, has it been extinguished? If it has not been extinguished, does the government regulation seeking to regulate that right infringe upon it? If there is infringement, can the Crown, the government, establish that the infringement is justified?

In Sparrow there was no serious dispute as to the existence of the aboriginal right to fish. In that case it was the claimed right, or the right they were trying to establish, as one for food, social, and ceremonial purposes. So the court did not deal at length with the proof required to establish aboriginal rights or get much into the nature and scope of these rights. In a sense the importance of these cases, particularly the Van der Peet case, is that the court has now had an opportunity to provide some guidance on that very issue.

The first thing the court did in Van der Peet was to talk about the purpose of the approach to interpreting section 35 and the purposes which underpin section 35 protection of aboriginal and treaty rights. They really found two aspects that were important in this regard. First, they found it was the means by which the Constitution of Canada recognizes the fact that before the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies. The second aspect of this is what drives section 35, in a sense. It's that section 35 is the means by which that prior occupation is reconciled with the sovereignty of the Crown.

Having dealt with that, the court went on to clarify the test for establishing aboriginal rights. The key phrase in the whole judgment, in a sense.... I've paraphrased it, and I'll read what I have, because I still find it not confusing, but a bit of a mouthful.

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The activity claimed as a section 35 right has to be an element of tradition, custom, or practice that was and continues to be integral to the distinctive culture of the aboriginal group at the time of contact with Europeans. That's what aboriginal rights are, those activities that meet that test, which is now being referred to as the ``integral to'' test. It's not everything that aboriginal groups carry on; it's those practices, traditions, and customs that are integral to their distinctive culture.

The court then went on to say that it felt that in order to analyse claims to aboriginal rights properly, the first thing you had to do was identify the precise nature of the claim. I've alluded to that already, that in Van der Peet they distinguish between the two types of right to sell fish. They did this really for two reasons: one, to ensure that the government regulation that was being attacked was properly engaged, in the sense that there's not a lot of point in establishing you have an aboriginal right to fish for food, social ceremonial purposes if the government regulation you're attacking prohibits sale - that even if you can establish a right, it's not going to be infringed by a regulation that prohibits sale. On the other hand, the reverse of that is also true: you don't necessarily have to establish a full-blown commercial right to fish when the regulation that's being attacked prohibits all sale. It was on that basis that they said it would be sufficient for Mrs. Van der Peet and possibly the NTC Smokehouse to establish some kind of more limited right simply to sell fish, rather than a right to sell fish on a basis that was truly commercial.

Having emphasized the importance of properly characterizing the nature of the right claimed, they then analysed a series of factors that were necessary in deciding what practices were integral to the distinctive culture. I'll make reference briefly to some, but not all of them.

The first one I'll mention is that the practice must be of central significance to the aboriginal culture. This means that not every practice undertaken by a particular aboriginal group or society qualifies. Here are a couple of phrases from the judgment: it has to be one of the things that truly made the society what it was. Put another way, it's a tradition, practice, or custom that was a defining feature of the culture in question. The court found that was an important factor.

The second factor I want to refer to is the need to show continuity - that for whatever practices were engaged in at the time of contact, there has to be some degree of continuity with what's being carried on today. The court found that was the primary means by which rights would evolve over time. There's a statement in the Sparrow case that aboriginal rights are not frozen, but should be permitted to evolve over time. Obvious examples are things like modern hunting practices. If at the time of contact bows and arrows were used to hunt, it does not mean that you have to hunt in 1996 with those weapons; you can use modern rifles. How far that goes is more of an issue, but the notion of continuity is an important aspect of establishing aboriginal rights.

The third factor I want to refer to was a confirmation from the court that aboriginal claims are to be adjudicated on a specific, rather than general basis - that different aboriginal groups will be able to establish different kinds of aboriginal rights. It's often referred to as the idea that aboriginal rights are site- and fact-specific - that you look at the history of particular groups to determine what their rights are and that there may well be differences between different groups.

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Fourthly, it is necessary to show that the practice is distinctive, rather than distinct, for the particular culture. The court took a dictionary definition of distinct that said that it was unique, and they said this isn't necessary, but the practice still has to be distinctive, still has to be part of what makes the particular culture what it is.

They made reference to the right to fish for food and said this is probably common to many cultures, but that does not mean that the Musqueam were unable to establish that it was a part of their distinctive culture and therefore should qualify as an aboriginal right.

The final factor I want to make reference to is the court reference to the need to take into account both the relationship of aboriginal peoples to the land as well as the distinctive societies and cultures of aboriginal peoples. This was a reference to the notion that aboriginal title is a subcategory of a broader range of aboriginal rights. I think that is going to have to be developed in future cases. The importance of that became clear in the more recent Adams case, which members may be well aware of. That's a decision that came out of the Supreme Court on Thursday dealing with claims to aboriginal rights by the Mohawk in the area around Akwesasne.

That is all I want to say about the first principle issue - the establishment of rights, the clarification and the development of this ``integral to'' test that the court has indicated is the test for establishing aboriginal rights.

The second principal issue is that of extinguishment. The court confirmed there had been some uncertainty as to whether rights could still be extinguished after 1982, which is when section 35 came into force, and the court simply stated that after 1982 aboriginal rights and treaty rights cannot be unilaterally extinguished.

Specifically with regard to fishing rights, the court found in the Gladstone case that the Fisheries Act and the regulations were not effective to extinguish the aboriginal right to fish commercially that had been found to exist in Gladstone.

The government had argued that laws relating to the protection of fry and spawn, and also an Order in Council dating I think from 1917, seem to suggest that commercial fishing by aboriginal people was to be on the same footing as for non-aboriginal people. The court found that was insufficient to show a clear and plain intent on the part of the Crown to extinguish at least the particular right found to exist in Gladstone.

The final issue I want to refer to is the notion of the fiduciary responsibilities of the Crown in the context of justification.

Because in Gladstone the court found that there was an aboriginal right to fish that had not been extinguished, they then had to consider whether there was an infringement, and whether it was justified. They found that the right was infringed, and as I indicated, they were unable to dispose of the case regarding justification, and directed a new trial on that issue. They did, however, suggest a refinement of the Sparrow test for justification where an aboriginal right to fish commercially has been found to exist.

In Sparrow the court had set up a two-step process for justification. First, the Crown has to establish a valid legislative objective. In Sparrow they outline things like conservation and public health and safety. Once you've established, if you can, a valid legislative objective, the second step is for the Crown to establish primarily that adequate priority has been given to the aboriginal right. They talked in Sparrow of the honour of the Crown being maintained, and specifically in Sparrow, given that it was a right to fish for food, they found that it was necessary to give top priority to the aboriginal right to fish, following conservation.

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As I say, in Gladstone the court has refined that, to some extent, in relation to rights to fish commercially. First, in addressing the issue of valid legislative objective, the court indicated that matters such as regional and economic fairness and the recognition of historical reliance upon a fishery by non-aboriginal groups might be sufficient, if exercised in the proper circumstances, to be the type of objectives that might help satisfy the first step.

With regard to the second step in justification, addressing the proper priority to be given an aboriginal right to fish commercially, the court discussed the idea where a right did not have an internal limitation, in the sense that a full-blown right to fish commercially doesn't have an internal limitation. As far as a right to fish for food goes, eventually enough fish will have been caught to satisfy those food needs.

The right to fish commercially is limited only by market demand and the amount of the resource available. On that basis, and in that kind of case, different considerations in deciding the appropriate degree of priority to be given to those holding aboriginal rights would be appropriate. And in that way, the court avoided the total exclusion of other user groups from the fishery.

The guidance they gave was very general. They simply seemed to suggest that in allocating the resource they had to take into account the existence of aboriginal rights and allocate the resource in a manner respectful of the fact that those rights have priority - a constitutional protection - over the exploitation of the fishery by other users.

Those are the findings of the court on those three principal issues.

The final point I want to make concerns the legal effects of the judgments. It's important to note that these cases were prosecutions, not civil actions in which claims to aboriginal rights were brought by aboriginal people. Aboriginal people were seeking to avoid convictions under the Fisheries Act. So it's the legal principle of res judicata: where issues are finally resolved in court proceedings, you can't raise the same issue again in further court proceedings. That has limited application in these kinds of cases.

For example, other aboriginal groups, relying on the kind of approach that the Supreme Court has outlined in Gladstone, would certainly be able to seek to introduce evidence that would establish some kind of aboriginal right to sell fish, and they certainly wouldn't be precluded because of this judgment.

Even the particular groups involved in these cases are not foreclosed from seeking to adduce further evidence if there was a further prosecution of a member of the Sto:Lo or the Sheshaht or Opetchesaht bands. In fact, as I understand it, the Sto:Lo have brought a motion before the Supreme Court to seek a rehearing of the appeal and to seek an order that direction be given to order a new trial so that they would be in a position to introduce evidence of the kind sought by the Supreme Court in Van der Peet to try to establish that they indeed have a right to sell fish.

I don't want to comment on whether that is likely to succeed. All I'm saying is that the issue of the aboriginal rights to sell has not gone away. One can anticipate that aboriginal groups will be seeking to introduce evidence in line with the Van der Peet case that would establish some kind of aboriginal right to sell.

Finally, it's in that context that Fisheries is seeking to manage the fisheries on the west coast.

The Chairman: In your opinion, do you see this affecting fisheries policy at this point?

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Mr. Price: It may be better for Fisheries to answer that question, but it's simply that the court has refined its test for aboriginal rights. It hasn't determined finally who does or does not have aboriginal rights to sell commercially.

The Chairman: Pat.

Mr. Pat Chamut (Assistant Deputy Minister, Fish Management, Department of Fisheries and Oceans): Thank you, Mr. Chairman.

What I'd like to do this morning with the committee is follow on what Mr. Price has said about the judgments themselves. I'll summarize for fisheries management what I think the main points are arising from the judgment and then follow on and talk a little bit about the way in which it may affect fisheries policies and programs.

There are five main points that I take from these judgments. As Mr. Price has gone through in some detail, there's a lot of information and these are very complicated judgments, but in my reading of them, I take five main points that I think are important.

First, the court has concluded that there is an aboriginal right to sell fish given the existence of certain circumstances.

Second, the court has said clearly that that right is not a universal one or a general one held by all groups, but must be established on a case-by-case basis, and it will depend on the specific circumstances of the group in question.

Third, in what is now, I understand, called the Van der Peet trilogy, the court has established a test for judging whether or not a commercial right may exist. The essential distillation of that test is that sale or trade must have been an integral part of the distinctive culture of the society. In other words, it had to be a central or defining feature of the society prior to contact with Europeans.

Fourth, the court has said that where a right may exist, that right is not absolute. In other words, there can be limits on the right that may be justified by factors such as regional fairness or the historic participation of non-aboriginal fisheries. So clearly the court has given us some indication of how the right may be regulated by the federal government and some of the considerations that can go into the limitation of that right.

Fifth, the court concluded that of the three cases it had before it, the Heiltsuk tribe does enjoy an aboriginal right to sell herring spawn on kelp. It also concluded that the Nuu-chah-nulth Tribal Council, which was the group engaged in the so-called NTC Smokehouse case, as well as the Stallauo, which was the tribal grouping involved in the Van der Peet case, do not have an aboriginal right to sell salmon.

Those are the five main points I take to be important from a Fisheries perspective, in terms of looking at future policies and programs. As with many of these judgments, the court has provided us with fairly clear guidance about a very important issue, but it's safe to say that in the judgments there is still much room for interpretation, and inevitably debate, about precisely how to apply the tests and how to deal with the issue of justification.

There are some very challenging policy and program issues before the department as it moves to ensure that its policies are in compliance with what the court has clearly indicated.

I'd like to go through some of the issues I see arising from this particular case. We don't yet have answers to all of these issues; nonetheless, they are very actively facing us in terms of our approach to managing.

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The first and most immediate issue is associated with the Heiltsuk case, the Gladstone case. The court has confirmed that there is an aboriginal right to sell herring spawn on kelp, but the court in its judgment could not conclude whether or not the infringement on the right was in fact justified. So the court has directed that if this issue is to be concluded there must be a further trial to see whether or not the right has been unfairly or improperly infringed.

The question for us, working with our colleagues in justice, is whether or not the Gladstone case should be submitted for retrial, to obtain some further direction from the court on this issue of justifiable infringement. That's the first issue we must deal with.

In the event it is decided not to pursue a court case - in other words, a retrial of the case that was originally heard in 1988 - if we decide it would not be appropriate to go to retrial, then the question is what steps does the department need to take to accommodate the right the court has identified for the Heiltsuk. That's the first issue.

The second issue that will be important is the question of the pilot sale programs that were initiated by the department in 1992 in a few specific areas of the coast. Since 1992 the department has authorized programs in three areas: on the lower Fraser, on the Somass River, and in the Skeena, where the sale of fish caught by aboriginal people has been authorized.

In two of the three areas where pilot sales have been conducted, the court has indicated that there is no aboriginal right to commercial sale. Now, I have to say that the pilot sales, when they were approved, were not approved on the basis that there was a commercial right to sell. They were approved on the basis of a policy decision by the minister; it was not done on the basis that there is a right to commercial sale.

This is an issue that will obviously be a priority for us to review. We are looking at the court decision as it pertains to the pilot sales and we will be making a decision about the future of those prior to the 1997 season.

Mr. Chairman, excuse me for one minute.

A voice: You're choking over your words.

Mr. Chamut: It's the emotion with which I speak.

The third point I would like to raise is the issue of assertion of rights by other groups. In its judgment the court has essentially defined the standard to enable a group to assert a claim to a commercial right, and I think it's safe to predict that many groups will believe they can meet the standard or test that has been set by the court. I note in the concluding comments that Mr. Price offered that the Sto:Lo have in fact sought a reapplication of their case so that they can put additional facts before the court, because in their mind they can demonstrate through practices that were part of their culture prior to contact that they will or can meet the test to assert an aboriginal right. As I say, I believe that other groups will also believe they can meet that test, so we expect to be dealing with a number of assertions that a right exists. So this presents a very significant challenge for this department, because DFO is not in the business of judging or creating rights.

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Determination of the existence of an aboriginal right is done through one of two processes. An aboriginal right can in fact be determined by the courts, as we have seen in previous judgments such as the Sparrow case, and I believe such as exists with the Gladstone case. The other approach that can be taken to define rights is through treaty negotiations.

Clearly, I think the approach the government prefers to take is to try to address rights through negotiations. But in the case of dealing with the immediate challenges facing us, I think the treaty negotiation process is not sufficiently timely to enable early judgments to be made about which groups do or do not enjoy a commercial right. The Department of Fisheries and Oceans does not wish to nor can it be in the business of creating rights. In my view, this will be a difficult issue. We will need a strategy to respond.

One approach we would be looking at is continuation of an ongoing process of transfer of commercial fishing licences to aboriginal people as a means to provide them with a larger degree of involvement in the commercial fishery. But I would say that on these cases, and the last one in particular, final policy judgments have not been made. We are reviewing options, and final decisions will be made before the 1997 fishing season.

With that, Mr. Chairman, I would like to conclude and would be delighted to answer questions.

The Chairman: Okay. Thank you all for your presentations. This should generate a fair amount of discussion.

Mr. Bernier, would you want to begin?

Mr. Bernier (Gaspé): I wonder if I may step back for a while from the trilogy we are studying, but I shall refer to it.

I wish to know if our witnesses have seen the ruling announced on Friday October 4, stating that native groups in Quebec have the right to fish without a licence.

I wish to talk about the present situation in Chaleur Bay as concerns lobster fishing by the Micmacs of Listuguj, which was formerly known as Restigouche. This is quite a new issue to me. I must say that my colleague John Cummins will have a chance to ask other questions later. He is probably the person who made me more aware of the native fisheries issue.

I am not putting into question the right of natives to fish, but I heard this morning how you intended to establish those rights. I see that it will be on a case by case basis. The fact is that I did not yet fully read the ruling of last Friday, but where are we going? Is it a matter of law or is it more political? A nation tells another one that it was here before all others and that it wants the right to fish. In what way has it influenced the actions of DPO?

Mr. Ovide Mercredi has written the Aboriginal Fisheries Strategy in 1994 or 1993, precisely in Listuguj. The committee did not study that document. I know that it was delivered to Mr. Tobin. Presently, the issue of native rights is dealt with on a case by case basis. But every time, and this is what John made me understand, the department is backtracking.

I wish to know if there will be some guidelines. What concerns me particularly is how the coexistence of the two groups will be managed. Will Fisheries and Oceans buy back licences? You said earlier that you wanted commercial licences to be issued for salmon fishers.

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In the case of Chaleur Bay, how will lobster licences be bought back in order to allow natives to fish? Is this the direction we are taking? In the meantime it will have an impact. How will you manage that impact? It will create social tensions between the two groups. Maybe I asked too many questions and I should let our witnesses answer them.

[English]

The Chairman: Who do you want to answer that?

Mr. Chamut: If I may, Mr. Chairman, I'll try to deal with the latter issues raised, dealing with the situation at Listuguj. I will defer to my two colleagues with respect to the cases announced in the Supreme Court last Thursday dealing with Adams and Côté.

On Listuguj, the situation there is that the aboriginal group wishes to exercise a right to fish lobsters to meet their food needs. What we have done in this case - and I would suggest that we're not managing on a case-by-case basis in an ad hoc manner - is that we are approaching Listuguj consistent with the policy that exists for managing the aboriginal fishery.

They have expressed an interest in harvesting lobsters. As is consistent with our policy, we met with the group to try to determine what their needs were. We were unsuccessful in having constructive negotiations with the band, and as the result of our inability to come to any agreement, the department imposed a communal fishing licence on the band that does provide them with the opportunity to fish to meet their food, social and ceremonial needs.

The approach we've taken there is consistent with the policy we would have taken in every other circumstance.

In the case of the Listuguj, the problem is made more complex by the fact that there are a number of commercial fishers who feel that the exercise of the aboriginal right will adversely affect their future harvesting for commercial purposes. So what we have done is have a meeting with representatives of the commercial fishers last Friday in Ottawa.

There will be further discussions with commercial people in the Gaspé on I believe Wednesday or Thursday of this week, where we will discuss with them some of the options to ensure that the exercise of the aboriginal right is not pursued in such a manner that will result in unacceptable social or economic impacts on those people.

At this point, I think it's premature to talk about how we will work with the group to try to ensure that their interests are not adversely affected. It will require more discussion with both the aboriginal group and the commercial group. Those discussions are underway this week, and I'm sure they will continue over the next short while.

But in managing that issue, I would conclude by emphasizing that it is done in a way that's consistent with the existing policy that the department has. Our objective is essentially threefold: first, we want to ensure that whatever harvesting is done is done to ensure conservation objectives are met; secondly, we must ensure that the fiduciary obligation we have to accommodate the aboriginal right is met; and thirdly, we have to make sure that the commercial fishers in the area are not treated in a manner that is unfair. So those three objectives guide our approach to this particular issue.

Mr. Price, would you talk about Adams and Côté?

Mr. Price: I don't want to get into a lengthy exposition on those two cases. Essentially, they were an application of the Van der Peet trilogy and concluded that at least two groups within Quebec did have aboriginal rights to fish for food.

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Perhaps the importance of the case is related to a particular argument, that because this was Quebec and it was regionally controlled by a French regime that did not acknowledge the existence of aboriginal rights, when the British took over in 1763 there were no aboriginal rights to be taken over as part of the area. That argument, that aboriginal rights do not exist in what was formerly New France, was rejected.... I'm not sure it was rejected by the court, but they felt that notwithstanding whatever the French regime did, aboriginal rights could still exist within what had been New France.

As far as your question relates to fishing without licences, I think in those cases the court found more that the licensing regime was not justified, not that licences are never required. There's other case law to suggest that licences do not of themselves infringe. It's more the conditions that are imposed. In this case I think it was the idea that the licensing scheme was so open-ended, with no real guidelines as to how they were to be issued in a way that took proper account of aboriginal rights, which was the problem, rather than the idea that licences could never be required.

[Translation]

Mr. Bernier: I did not fully understood the last intervention. I read in the paper that natives would have the right to fish without a licence. I did not fully understood the explanation given. It was not a limitation of their rights. Let put yourself in my shoes or those of the layman, of people who read the news Friday morning, and who are wondering what it means. How will you manage the coexistence of the two groups?

Should I understand that all natives in Quebec can fish anywhere and not necessarily in their home territory? How will you manage all that? Maybe Mr. Chamut will have that difficult task.

Mr. Chamut's answer on Listuguj was about communal licences. You are saying that you will try, as much as possible, to reduce the impact on fishers. First of all, their licence limits the number of traps, but if they are fishing all year-round, they will certainly harvest more lobsters than commercial fishers.

So is there any means to limit the duration of their fishing? If their goal is only to fish for food, you know very well that lobster catches can be kept alive during a whole season. I think we call this "stabulation". I also wish to know if on top of the limitation on the number of traps, there is a limitation on the quantity as this is only to meet food needs. You cannot eat ten pounds of lobster per day.

[English]

Mr. Chamut: I would agree, sir, that in most cases one can't eat ten pounds of lobster a day, but on occasion I have seen it done.

The communal licence that was issued in the latter part of September defined that the band could fish with up to 200 pots, and it did not include a maximum amount of lobsters, because we were unsuccessful in our negotiations with aboriginal people and it was felt we had a very limited legal basis on which to ascribe an upper limit on the amount of the amount of lobsters to be harvested. But I would add that establishing the trap limitation number of 200 traps maximum will restrict the amount of lobsters that can in fact be harvested.

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We're also mindful of the fact that the season for lobsters will rapidly conclude, with poor weather and fishing conditions. Shortly there will no longer be an opportunity to continue to fish. So it was concluded that the trap limit would meet our responsibilities for conservation and at the same time provide them with adequate opportunity to meet their fish needs for this particular year.

It is our expectation that we will sit down with the band and continue our discussions so that in 1997 we will have an approach that meets the three objectives I set out earlier.

The Chairman: How many traps are actually fished?

Mr. Chamut: The most recent count is around 80, so it's considerably less than what the licence has authorized the band to fish.

The Chairman: Mr. Cummins, you're well prepared over there. Go ahead.

Mr. Cummins (Delta): I want to comment on the last issue, just for my friend from the Bloc.

Mr. Bernier: Excuse me. I'm missing part of the answer. Was there a part two?

[Translation]

In his answer, the official from Justice did not tell me what was the impact of the ruling made last Friday stating that aboriginal groups can fish anywhere without a licence and that their fishing territory is not necessarily related to their home territory. I wish to know if my interpretation of that case is correct. If yes, how will you manage that situation? Excuse me John, but I did not get my answer.

[English]

Mr. Chamut: I'll try to answer the first question about licensing, and I'm sure, as a non-lawyer, if I speak out of turn, my colleagues will correct me.

It's my understanding that the judgment that came down from the Supreme Court on Thursday did indicate that the way in which the licence was being issued was inconsistent with the exercise of the aboriginal right.

There's another court judgment that I would want to refer to, and that's the so-called Nikal judgment. This judgment came down, I believe, in the spring of 1996. It involved a fishing case in the province of B.C. In that judgment, the court concluded that a fishing licence per se is not necessarily an infringement of an aboriginal right to fish for food.

My understanding is that in the Quebec situation, they found that the regulatory scheme by which the licence was issued was inappropriate for the exercise of an aboriginal right, because it did not provide any guidance with respect to how the licence should be issued to aboriginal people. In essence, a licence can be issued to govern aboriginal fishing, but it must be issued as part of a regulatory scheme that does not unnecessarily infringe on the exercise of the right.

My reading of the case is that there can be some adjustments to the regulatory scheme that would still allow a licence to be issued.

The Chairman: Mr. Price, do you have anything to add?

Mr. Price: I have nothing to add. Mr. Chamut has put the situation very accurately.

On the other point that's been raised about fishing anywhere, I don't want to be taken to be giving interpretations of what those cases are about, but what I will say is the court was careful to indicate - and I don't want to get into this whole issue of aboriginal rights versus aboriginal title - that even where aboriginal rights might exist independent of aboriginal title, it does not necessarily mean the rights could be exercised wherever an aboriginal person might wish. In all probability the exercise of rights would still be site-specific; it would still relate to particular areas of land. I would say they were not terribly specific on how that will play out in practice, but the court was careful to try to avoid the idea that aboriginal rights necessarily could be exercised anywhere.

.1010

The Chairman: Mr. Cummins.

Mr. Cummins: I was just going to note something was rather curious in the comments here on the Listuguj, and that is Mr. Chamut's comments about how we may have a few problems this year but everything is going to be all right next year and it's not going to affect the local economy. Those are just the same types of comments as he wrote in a letter to Mayor Mary Ashley and the council in the district of Campbell River back in 1993. He said:

The language hasn't changed. This goes on and on. But what has changed is the justification for this process.

This morning Mr. Chamut alluded to the fact that the commercial component to the AFS was a policy decision not driven by the courts. In The Vancouver Sun, back on August 22, 1996, just after the three cases came down, he was quoted as saying:

Mr. McWhinney (Vancouver Quadra): Who is this quote from?

Mr. Cummins: That's a quote from Mr. Chamut in The Vancouver Sun on August 22, 1996.

That's in direct contrast to this advertisement, which appeared back in 1993. It was put in by the Department of Fisheries and Oceans in The Vancouver Sun and The Province. It asked:

To make sure there's no mistaking that they were talking about the sale of fish, it says:

Mr. Chamut, in a letter to B.C. municipal town councils and districts on May 17, 1993, you said:

In a letter to the B.C. Fishermen's Survival Coalition dated October 28, 1993:

I could go on. I have a whole pile of letters here, the same kind of stuff from fisheries ministers, from Reid from Newfoundland, Crosbie, you yourself, Mr. Chamut, Maryantonett Flumian, etc., all telling us the policy was based on a constitutional obligation as defined by the courts. Now you're changing your tune. The question is when were you right? Are you right today or were you right in 1993? What are we to believe?

Mr. Chamut: We have been consistent in the department, I have been consistent as a public servant, in explaining the basis for the aboriginal fisheries strategy. The ad you refer to talked about the aboriginal fisheries strategy as a national program that was designed to implement the Supreme Court decision. Where there may be some misunderstanding is that many people have looked at the AFS and have concluded that the only thing about it is the pilot sales programs in the lower Fraser River. That is simply not the case.

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The aboriginal fisheries strategy is a program that was designed, as the ad says, as the letters have confirmed, to ensure that the federal government is able to meet its fiduciary obligations to enable aboriginal people to fish to meet their food, social and ceremonial needs. At the same time, that program included one component that was intended to carry out a test of allowing aboriginal people to sell fish caught in an aboriginal fishery. As I mentioned earlier, three pilots were initiated in 1992.

Where there is a misunderstanding, it is assumed that the AFS equates to pilot sales, which it clearly does not. This department cannot approach this on the basis of it being a right, nor has it done so. It is done on the basis of it being a policy decision set by the minister.

I think we have been consistent since this program was introduced in 1990.

Mr. Cummins: There is no consistency in your comments, Mr. Chamut.

Let's go to the Canada Gazette, Wednesday, June 30, 1993, where you were establishing the regulations for allowing these native-only commercial fisheries. As part of your justification you say:

You're using the courts as justification for the regulations that you set for these communal licences.

There's no consistency there, Mr. Chamut. You guys, when you introduced that program...for at least a year afterwards Mr. Crosbie said time and time again, ``Sparrow made me do it''. It was finally made quite clear to him that it wasn't Sparrow and suddenly it became a policy decision. That's a fact.

I don't think we're going to get anywhere arguing -

A voice: No.

Mr. Cummins: - because your comments made in 1993 are in direct contrast to what you were saying in August of this year.

The Chairman: I think it's quite fair to answer that, though.

Mr. Chamut: Yes, I would be delighted. I'm afraid that all I can say is that my statements in 1992 are consistent with the statements that were made in 1996. We have consistently made it clear that we are not in a business where we can establish aboriginal rights.

We have recognized that we do have an obligation to manage in such a way as to meet the aboriginal right to fish for food, social and ceremonial purposes, and that was the basis of the 1993 regulations that were set in place. They were not done specifically to authorize pilot sales.

I think you have to appreciate that the aboriginal fisheries strategy, as you commented earlier, is a national program that provides the basis for managing aboriginal fisheries across the country. It is not designed to simply authorize pilot sales as a matter of policy by the department.

Mr. Cummins: Again, Mr. Chamut, you contradict yourself and your department contradicts itself. On May 26, 1994, in the Canada Gazette, the regulations for the aboriginal commercial fishery, you say again on page 94-390:

The new regulations replace regulations that required the issuance of individual Aboriginal food fishing licences. Individual food licences were found to be inconsistent with the concept of communal Aboriginal fishing opportunities, as identified in the Supreme Court's Sparrow decision, and with the policy of increasing involvement of Aboriginal groups in managing their own affairs.

Following the Sparrow decision, a policy of negotiating agreements with Aboriginal groups was adopted as the most effective and efficient means of providing for the management of Aboriginal fishing and minimizing regulatory impacts on Aboriginal fisheries.

Then it goes on to describe the regulations. You're using the Sparrow decision to justify these regulations in the Canada Gazette. It's there in black and white. Anybody can read that.

The next point I would like to make with you, Mr. Chamut -

The Chairman: I think Mr. Chamut should answer that before we go on to another topic.

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Mr. Chamut: I don't have the documents in front of me, but I believe the Canada Gazette article you're referring to established the basis for the communal licence.

Mr. Cummins: I can repeat it for you. It goes beyond that.

The Chairman: Right, for communal licences.

Mr. Cummins: Yes, and those communal licences were for pilot sales.

Mr. Chamut: No, no. This is probably the heart of this disagreement, Mr. Chairman.

The communal licence, as stated in the Canada Gazette, was our response. The Sparrow decision indicated that the right to fish to meet food, social and ceremonial needs was in fact a communal right. There were concerns that our former practice of individually issued food fish permits was inappropriate given the new definition of the nature of the right. We passed communal fishing regulations that are intended to authorize or to be the means by which we will license aboriginal fisheries - not pilot sale fisheries, but aboriginal fisheries across the country. It's on that basis that we're operating. It's on that basis that we issued the licence to Listuguj.

I think the disagreement is over the interpretation of whether the communal licence is a vehicle to authorize pilot sales, and clearly that is not the case. It is a vehicle intended to authorize and license the conduct of an aboriginal fishery.

The Chairman: John, you have five minutes left. Do you have a question?

Mr. Cummins: The issue is clearly that you acted beyond the law in allowing for this. We can go to the Gladstone decision, in which the justices said:

In your own factum you talk about that. In the government's own factum they talk about the right to fish, and they note that there is a public right to fish. They said here: ``Note: NTC Smokehouse'', indicating that it was a policy of the Department of Marine and Fisheries that the public was not to be deprived of the right to fish in tidal waters. You've attempted to do that by regulation, to deprive the public of the right to fish in tidal waters - in other words, to allow for an exclusive fishery. You don't have the right to do that by regulation.

You can go to A.W. McLelan, acting Minister of Marine and Fisheries to Sir John A. Macdonald. This is from January 30, 1882. He notes that ``fishing rights in public waters cannot be made exclusive excepting under the express sanction of Parliament''.

On the public right to fish, this is from the Solicitor General, Province of Canada, Commissioner of Crown Lands, March 11, 1863: ``The Statute, as I have said, is rather for the regulation of fisheries than for granting power to give exclusive rights.''

In other words, this program has been operating since 1992 without the consent of Parliament and so has been operating illegally. The minister has been exceeding his authority since 1992. You know that full well. That's why you declined to press charges against me in 1995 and again in 1996.

Mr. Chamut: Mr. Chairman, the Gladstone case does make reference to there being a common law right to fish in tidal waters, but it goes on to say that there is a right to fish in tidal waters that can only be abrogated by enactment of competent legislation. That principle, I think, is well established and recognized.

Also well established in Canadian law is that the public right to fish is in fact subject to federal regulation. There is a Fisheries Act that governs this and provides us with the authority to issue licences and to regulate open and closed times as part of an overall scheme to regulate the fisheries. It's a very legitimate exercise of federal authority.

.1025

Mr. Chairman, we have been advised that the pilot sales programs are very much part of the legitimate exercise of the minister's authority to regulate fisheries. The pilot sales in fact do not create exclusive fisheries. Exclusive fisheries are generally defined as having a property right to harvest, and pilot sales do not do that. They are merely a legitimate exercise of the minister's authority under the Fisheries Act to limit and regulate the fishery. I think what we're doing there is essentially no different from what we do in managing any other fisheries in coastal waters, be they trollers, seiners or gill-netters, where we do have openings for specific gear types, all clearly within the minister's authority to do, pursuant to the Fisheries Act.

The Chairman: Why are we referring to, the Magna Carta for fisheries rights in tidal waters? Where is this coming from?

Mr. Cummins: In the Magna Carta there was a clause - I think it was 47 or 49 or something - that took away from the Crown the right to grant favours to friends; in other words, to allow the Crown to say that the fish in these waters are to be harvested only by a certain group of people. So since that time it has been considered a public right to fish. The limitation on that public right to fish - the licensing Mr. Chamut referred to - is a limitation, but it's a limitation that is open to everybody. Everybody still has access to it. If you buy a licence, you can participate.

The only way the exclusive rights can be granted is with the consent of Parliament. As I was reporting from the Solicitor General, Province of Canada, the commissioner says exclusive rights of fishing in this part cannot be granted now by the Crown. In other words, you can't do it by regulation. The minister does not have the authority. Only Parliament has the authority to allow exclusive rights, and that's what's been happening under this AFS. It's been operating beyond the law because the minister has been exceeding his authority by allowing for these fisheries - and he still is. That's why in the new Fisheries Act section 17 gives the minister the authority to do that.

The Chairman: Do we have a response? Then we'll go to the government side.

Mr. Chamut: I think I have expressed my view. I don't think there's an awful lot more I could add.

Mr. McWhinney: I wonder if I can ask some clarifying questions, mainly from Mr. Price.

We would agree that section 35 of the charter creates no new law. It simply declares to exist what already exists, but deliberately doesn't define the content of that. Is that a correct interpretation of your position?

Mr. Price: Essentially, it gives constitutional protection to rights that existed or continue to exist in common law.

Mr. McWhinney: But without defining them.

Mr. Price: Yes. In fact there was, as you are aware, a series of constitutional conferences that were intended to define those rights. That's what took place in the 1980s.

Mr. McWhinney: I just mention, as a matter of interest, section 35 was not in the original draft, but Senator Ray Perrault and I and others suggested to the then Prime Minister that it be included. Our suggestion was that it not define, but simply preserve whatever exists without defining it. The assumption would be that the content or flesh would be put on by either court decisions, fresh legislation or fresh agreements - what we call, somewhat inaccurately in the constitutional law sense, treaties.

Let's get to the second point. You also agree that there is nothing corresponding to what the civil law calls jurisprudence constante and what we would call a course of precedents, that there is nothing in the way of Supreme Court decisions, other than a handful of somewhat unrelated and specific fact-oriented decisions. Is that correct?

.1030

Mr. Price: I'm not sure I understood the question.

Mr. McWhinney: On defining aboriginal rights, so far as they relate to fisheries, could one count the decisions on the fingers of one hand?

Mr. Price: The guidance we have is fairly general and -

Mr. McWhinney: And fairly limited.

Mr. Price: Yes.

Mr. McWhinney: You'd also agree that the decisions are mixed. They sometimes seem to be lowest common denominator decisions, and they are painstakingly fact-oriented. That is to say, they are decided on the specific facts, or limited in the judicial opinions to specific facts and specific cases.

Mr. Price: I'm not sure where this is leading, but -

Mr. McWhinney: Or disagree, if you wish.

Mr. Price: I think the Van der Peet decision alluded to that and alluded to the Kruger decision, which is one of the main....

Mr. McWhinney: We'd also agree that the court has shown a tendency to respect the limits of its own fact-finding capacities, and therefore has deferred, to the extent that would be surprising in relation to other bodies of law, to the decisions of the lowest courts that have made the initial determinations.

Mr. Price: I'm not sure I want to debate with you on these, but generally appeal courts will defer to findings of fact in lower courts.

Mr. McWhinney: We'd qualify that by saying in areas where particular expertise is required. I think, as a general matter, final appellate tribunals are not reluctant to impose their own interpretations of facts of judicial knowledge, which are defined as facts of general public knowledge. This is a rather particular area where the courts have been very deferential to the lower courts. Correct?

Mr. Price: I think on the whole that's correct.

Mr. McWhinney: Coming back, it's a little bit tangential to the point on Magna Carta. You would agree that the Magna Carta was one of the British acts received in Canada, according to the legal terminology at the time, of settlement. Correct?

Mr. Price: I think that's what the Privy Council decided. These current fishing cases are important, but there have been earlier trilogies that were important. There were fisheries references at the turn of the century and they were -

Mr. McWhinney: But like all such British acts, legislation received in Canada at the time of official settlement, and I suppose correlatively French acts received in Quebec, are subject to amendment, repeal, and overriding by subsequent legislation of the competent Canadian legislature.

Mr. Price: Yes, subject to constitutional limitations.

Mr. McWhinney: Do you mean constitutional limitations as far as the Magna Carta or for example a British act or...? Are we limited?

Mr. Price: I'm not sure I want to get into a debate about -

Mr. McWhinney: Did we not abolish, for example, the rule limiting the monarchial sucession to -

Mr. Price: We're getting way beyond fisheries issues and into constitutional law.

Mr. McWhinney: I know, but -

Mr. Price: It may well be that since 1982 -

Mr. McWhinney: The general principle, though, is that received legislation, received at the time of settlement - we're not speaking of 1867 and the disposition made, but received legislation - is subject to the jurisdiction of the relevant Canadian legislatures.

So although there might be argument on the facts of the interpretation of the particular statute, it would be a correct position for Mr. Chamut to take that the Fisheries Act would be competent to override or amend the Magna Carta to the extent of any inconsistency.

I'm not suggesting that you answer now whether it does or not. That's another issue.

Mr. Price: I would not disagree with that.

Mr. Cummins: I think it's outrageous.

Mr. McWhinney: No, it's elementary, but there might be an issue of fact whether it had been done.

Mr. Cummins: The Magna Carta is quoted by the justices, not only in this case but in others, which gives it some substance. Surely the fisheries regulation can't override that.

Mr. McWhinney: It has substance, but there's no issue that the Canadian Constitution in 1867 created a sovereign country with plenary powers in relation to its own constitutional dispositions, except so far as limited by the act of 1867 itself.

.1035

Mr. Cummins: But the issue is that competent legislation hasn't been enabled. That's what we're talking about.

Mr. McWhinney: That was the second issue raised, but the general principle, I think you would have to concede -

The Chairman: I think we should address our witnesses. We have witnesses here; let's use them. If you want to argue about the Magna Carta among each other, you can do it some other time.

Mr. McWhinney: We were talking with Mr. Price and Mr. Cummins intervened, correctly, because he was interested, but I thought Mr. Price had basically answered it.

The Chairman: We would like for it to come to an end, though.

Mr. McWhinney: Well, the next question I would ask is this.

In the situation where there is no jurisprudence constante and where there in fact are no definitive Supreme Court rulings, even issues such as whether there exists an aboriginal fishing right would have to, as part of the matters covered by section 35, be determined in light of the jurisprudence and according to whether the jurisprudence has said it as a general principle or simply as a particular fact in a particular case coming before the court, correct?

Mr. Price: I'm not sure I understand.

Mr. McWhinney: I thought earlier in your testimony you said - or was it Mr. Chamut? - that the aboriginal fishing right was accepted as a general right. But it seems to me what we're also hearing is that we're getting specific fact rulings and specific cases, and therefore it would have to be argued in each particular case. Or are you saying there is a general proposition overall emerging from this fairly limited and scattered jurisprudence?

Mr. Price: It's the fact site-specific that is more accurate. Determined as a legal matter, it will be the evidence presented for particular groups that will establish what rights they have.

Mr. McWhinney: So finally we're getting beyond the legal issue. But in terms of determining the ambit of aboriginal rights in fishing matters, granted the limited nature of the court jurisprudence and the absence of definition of the content in section 35 of the Constitution, presumably there is an aboriginal strategy that involves liaison between different departments and an examination of whether one proceeds by the judicial route or by legislation or treaties. Would that be the position? I think that's more a question for Mr. Chamut.

Mr. Chamut: Mr. McWhinney, I'm sorry; could you repeat the question?

Mr. McWhinney: We're looking at the strategy on these issues. If the court jurisprudence is relatively limited and fact-oriented and section 35 itself provides no content of a definition of aboriginal rights, then presumably the strategy involving interplay between court decisions is still to come, a strategy involving cases, legislation and treaties still to be negotiated, correct? We're dealing with something the contours of which still have to be established.

Mr. Chamut: In my remarks I tried to identify the commercial right as a right that is very case-by-case and site-specific. We as a department are not equipped to make judgments about whether a group does or does not have a right.

My preference in assessing that is to be able to negotiate some arrangement so we can avoid what often can be a very long and difficult process through the courts. So the preference, yes, would be to try to negotiate arrangements, but the amount of time it takes to do that will present us with some immediate questions as to how we proceed in the short term until such time as there is some process of negotiation that will allow some of these issues to be more properly and more finally resolved.

Mr. McWhinney: Thank you.

The Chairman: There are a few minutes left, Harold. Do you want to use them or do you want me to come back to you?

Mr. Culbert (Carleton - Charlotte): I can use them. I only have a couple of brief questions.

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Good morning and welcome. You'll be happy to know that I'm not a lawyer or a constitutional lawyer, so I'm not going to approach you from that direction at all. But you should be prepared.... And I forgot to take time this morning before I left the office to review my history of the Magna Carta....

Some hon. members: Oh, oh!

Mr. Culbert: But I do have a couple of questions, Mr. Chair.

Given the current legislation you're working under - if I can use the terminology the ``current old Fisheries Act'' - as far as control and enforcement go, can there be improvements under the new act; and if so, how? Or are we guided only by the Constitution? I'm talking about aboriginal rights and fisheries and so on.

Mr. Chamut: Mr. Chairman, we are trying to make some improvements in the enforcement provisions of the act. Some features should provide some additional clarification and in some cases some authority and in other cases improvements in terms of our ability to deal with the licence sanctions as a means to promote compliance.

In answer to your question, those improvements notwithstanding, clearly we must ensure that any legislation put forward is consistent with the Constitution and the obligations that the federal government has pursuant to it.

For example, in the act and in the regulations, we must act in a way that is consistent with what the court has told us about aboriginal rights pursuant to Sparrow. Periodically, as we get these court cases, we have to make sure that any offending provisions in regulations, for example, are amended so as to ensure that they are consistent with the constitutional obligations we do have.

For example, when the Sparrow judgment came down it did have a consequent effect on many of the regulations that were in place because they did unfairly infringe on an aboriginal right. Those regulations were amended and a number of changes were made to ensure compliance with the newly found existence of a right that was protected pursuant to section 35.

Mr. Culbert: Mr. Chamut, if I understand that correctly, then, in any new legislation coming forward would there would be an attempt to clarify these ambiguous situations within the guidelines of meeting the constitutional demands?

Mr. Chamut: Where such an anomaly would exist, yes, we would try to identify that. I might ask my colleagues if they're aware of any specific changes that have been introduced because of the point you're raising. I'm not aware of one.

Mr. Gale.

Mr. Edward Gale (Director General, Aboriginal Affairs, Fisheries Management, Department of Fisheries and Oceans ): No. I cannot point to any specific change that we have made to the act itself in this round as a result of judgments. Whatever we did has been reviewed by constitutional law advisers as well as a number of other legal advisers, and it's consistent with our constitutional obligations.

The third point I should make is that the Fisheries Act is really an enabling statute. It has very little that is expressed or specific in it. It creates a legal framework and what you might call generic authorities, which are given their substance oftentimes in the regulations. So more often you would look to the regulations for the details of fisheries management that might create problems.

Côté and Adams is a case in point. It's a recent Quebec judgment where it was the expression of the licensing power in the regulations themselves that was impugned. In fact, those regulations have since been amended.

The Chairman: We'll go to five-minute rounds. Mr. Bernier.

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[Translation]

Mr. Bernier: Mr Chairman, I shall try to be brief. I would like Mr. Chamut to give me a definition of the quantity that native people have the right to fish for food.

Earlier, I concluded on a joke about eating ten pounds of lobster, but I am not sure that I got a clear answer. What quantity native fishers are allowed to catch on a fishing for food licence?

As concerns the ruling announced last Friday stating that natives can go fishing anywhere, its interpretation worries me. I wish to know if that judgment will have an impact on the claims of Micmacs in Listuguj because if they can fish outside their territory, the problem we have in Chaleur Bay will probably extend to other areas. If they think that there is not enough lobster or that lobster is not big enough in the area of Chaleur Bay, opposite Listuguj, they will be able to take it where it is bigger. So, it is important to know what quantity they will be allowed to catch.

[English]

Mr. Chamut: The issue of how much fish is enough to meet food needs is an issue that is not specifically quantified. It is one of the more difficult issues we have to confront. The approach we take is that we do it through a process of negotiation. Clearly, a food entitlement must be limited in some way, because there must be some finite limits on the amount of fish an individual or a group can consume.

The approach we have taken in other areas is to try to come to a consensus or a negotiated agreement on how much specific fish products are required to meet food needs for a particular band. In the case of different groups, their food needs are made up of a variety of different species. So the effort we make is in many cases to try to provide a balance that accommodates a reasonable entitlement to meet food needs. It will vary from band to band depending on their preferences, depending on their opportunities, and depending on some of the historical factors.

Clearly, if we sit down with a group, as we are directed by the Sparrow judgment to do, and that group is unwilling to negotiate a reasonable fishing opportunity to meet its food needs, then the department does have the authority to impose a licence that will stipulate either an amount of fish or a particular fishing regime that will, in the opinion of the department, allow their needs to be met. So it is not open-ended. But our preference is to sit down and come to an agreement, because it does then fully comply with the requirements of the Sparrow judgment and it allows a more harmonious approach to managing the fishery when you achieve consensus. But as I say, in those circumstances where consensus is not achievable, we can and do impose a licence authorizing a limited opportunity to fish to meet their needs for food.

To turn to the issue of Listuguj and the application of the judgments from last Thursday to their fishing activities, your question is whether or not those judgments would allow the Listuguj to fish virtually anywhere where the fishing opportunity might be better than in their home territory. My understanding is that the court indicated quite clearly that the right to fish to meet food needs is associated with a right that is geographically limited.

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Now, the court went into some detail with respect to whether or not the right must be associated with aboriginal title. The court concluded that a title is not a necessary prerequisite to claim a right to fish for food, but the court did say that the right was geographically restricted.

So in the circumstance that you pose, it's my view that the Listuguj have a right to fish to meet their food needs in their traditional area. If the Listuguj decided that they wish to exercise those rights at some far distant location, it's my understanding that this would not be a legitimate exercise of an aboriginal right, because it is not consistent with their normal and traditional area of occupation and harvest.

The Chairman: Okay. King John, do you have a question?

Mr. Cummins: I do. It's on this business Mr. Chamut just mentioned. He said that food needs vary from band to band, depending on opportunities. I would suggest that he left a couple of words out of there, which should have been ``opportunities to sell''.

In the government's factum on Van der Peet, they noted that the Indian food fish catch has increased greatly in recent years. In 1979, approximately 290,000 sockeye were caught by Indians for their food fishery, of which the Sto:Lo took 135,071, or 57% of the total. In 1987, approximately 468,000 were taken by the Indian food fishery, with the Sto:Lo taking 256,734, or 55% of the total. This represents 370 pounds of sockeye per Sto:Lo person per year. They don't eat at McDonald's there, I guess.

The government factum goes on to say:

In a letter to Bob McKamey from Ross Reid, the Minister of Fisheries and Oceans at the time, on October 4, 1993, he said:

But you too, Mr. Chamut, in a letter to Mary Ashley and council in the district of Campbell River, tie the sale of fish to the Supreme Court decisions. In the second paragraph of that letter, you say:

In the fourth paragraph, you say:

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You are tying the two together. The government tied it together. Mr. Reid tied it together. The government tied the sale and food fish together in its own factum.

Mr. Chamut: Mr. Chairman, I'm not quite sure what the question is. If we're back on the ground we've covered before, I think my response is the same. The aboriginal fisheries strategy was a program that was intended very definitely to deal with the aboriginal right to fish to meet food, social and ceremonial needs.

Included as part of that strategy was the pilot sale programs. I don't believe that I have ever suggested, nor would I have suggested, that the pilot sales projects were not part of the aboriginal fisheries strategy. It's a very small part of it in terms of the overall objective and intent of the program.

If the question is whether or not there's a linkage, I've never suggested, nor has any of the information that Mr. Cummins has before him, that the pilot sale projects were not announced as part of the aboriginal fisheries strategy. But the essential point remains that the aboriginal fisheries strategy was designed to ensure our fiduciary obligations to aboriginal people is met with respect to the food right. At the same time, we authorized, as a matter of policy, the pilot sale programs for a variety of reasons, which Mr. Cummins has identified in the letter.

Mr. Cummins: You tied it to the court decisions.

Mr. Chamut: That is your assertion, sir. I do not believe it is tied to the court decisions in the way you're suggesting. The court decisions we're going through had been still at a low level. At the time of that letter, they had just come through.

Mr. Cummins: No, you were tying it to Sparrow in this letter right here.

The Chairman: It's an opinion here. One says it's tied, while the other doesn't. I don't think we're going to get anywhere when we keep referring to it.

Mr. Chamut: Mr. Chairman, all I can do is reassert what I have said before.

Mr. Cummins: At what time?

Mr. Chamut: That's at every time I've had an opportunity to talk publicly or provide communication with any individual through writing letters or through discussions.

A voice: Okay.

Mr. Chamut: We have never, in my experience, stated that the existence of the pilot sales is done on the basis that the Sto:Lo, Nuu-chahnulth or Skeena tribes enjoy an aboriginal right to sell fish. DFO, as a department, has neither the authority nor the intent to create or define a right. Through a matter of policy, we have allowed aboriginal people in three specific areas to sell fish as an exercise of the minister's discretion pursuant to the Fisheries Act.

The Chairman: Mr. Wells.

Mr. Wells (South Shore): Mr. Chairman, I have one brief question on that same point, then I want to switch coasts for a minute.

It's perhaps fair to say that the aboriginal fishing strategy was in response to the Sparrow case.

Mr. Chamut: That's right.

Mr. Wells: In a general way.

I want to switch to the Donald Marshall case. I don't know who the expert on that is. I am sure somebody would be aware of it.

One of the differences is that all the cases we've been speaking of now are based on aboriginal rights; Marshall, as I understand it, was based on a treaty right.

Mr. Chamut: Right.

Mr. Wells: That, in itself, is significant, but perhaps you could brief us on the decision made in Marshall, and the significance of that decision.

Mr. Chamut: Mr. Wells, not being a lawyer, I should at least preface my remarks that they're not based on a detailed understanding of the law.

In the Marshall case, there was an assertion that treaties signed between the Micmacs and the British government of the day conveyed an aboriginal entitlement, or a treaty right, to engage in the sale of fish. There were at least two different treaties that were germane to the assertion: the treaty of 1761, and one that was immediately prior to that.

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The evidence, as you know, was voluminous on both sides of the case. The initial judgment the court rendered was that there was in fact no treaty right pursuant to the treaty of 1761 that would authorize aboriginal people to sell fish as an expression of a treaty right.

Mr. Wells: Was that fish, or just the eels in particular? Was it restricted to the species?

Mr. Chamut: My understanding is that it was broader even than fish. It talked about the opportunity of the Micmacs to engage in trade in...I believe it was fish and wildlife products.

The offence that prompted the trial was in fact harvesting and sale of eels without a commercial licence, and Mr. Marshall did assert that the treaty did provide him with the authority to do that. The court concluded no, he did not enjoy that authority. Had the court come to a different judgment, I believe it would have had broader application than just the specifics of eel fishing; it would have had a much greater application to species of fish, and presumably other animals, well beyond eels.

Of course the case is now under appeal and we expect that there will be further judgments coming down as the case progresses through the higher level of court.

Mr. Wells: Are there no other comments on that? Everybody agrees with that?

Mr. Chamut: You're welcome to disagree.

Mr. Wells: No, I'm not looking for disagreement. I just don't know if anyone wants to expand on that or not.

The Chairman: Maybe they're not as prepared for that question as they could be, but we're at other judgments here, not that particular one.

Mr. Wells: Also, from an east coast perspective, it is very significant, and I think for everybody -

The Chairman: Oh, I agree with that.

Mr. Wells: - it's perhaps as significant.

I have one last question. Mr. Price, in the trilogy, as they're referred to, I know two had dissenting judgments. I'm not sure if all three did. Is there any significance to the dissenting opinions, especially I believe.... Was it Van der Peet that had two dissenting judgments?

Mr. Price: All three had dissenting judgments. The dissenting judges varied. In Gladstone, I think it was Justice LaForest who dissented. In the other two cases, it was Justices L'Heureux-Dubé and McLachlin.

I'm not sure there's any particular significance. The court is not always unanimous.

In Sparrow, it was the judgment of the court. The only comment I'd make is that it was a straight split: seven to two or eight to one. In some cases it gets more complicated, because you have five judges on one issue going in one direction and a different five judges being the majority on another issue. I can say that while there were dissenting judgments, there were solid majorities.

That's not to say that some time in the future those dissenting judgments may not be referred to. It does happen over time that references are made sometimes to -

Mr. Wells: So the full court was sitting.

Mr. Price: The full court was sitting.

Mr. Wells: We had eight-to-one and seven-to-two decisions.

Mr. Price: Yes.

The Chairman: I believe I cut Harold off earlier. Do you have another question?

Mr. Culbert: Yes, I do, Mr. Chairman, if we have a couple of minutes.

To follow up, Mr. Chamut, if you recall the previous questions, what I was leading up to is it's my understanding that any new licence issuance, or any new species that licences are going to be issued for, today and into the future, would have to provide equally an opportunity for aboriginal or first nations' licence in that end of commercial fishery. Is that correct?

Mr. Chamut: It's not specifically correct as you've stated it.

Mr. Culbert: Okay, let's have it corrected.

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Mr. Chamut: We have indicated that as we develop experimental fisheries - looking at developing opportunities to fish new species that are currently underexploited - what we have said as a policy statement is that we intend to provide opportunities to aboriginal groups to participate in those developing fisheries.

As a matter of policy, not as a matter of law, we have indicated that we would provide licences to aboriginal groups to enable them to participate alongside others in a commercial fishery. They would be licensed as would other groups. It's essentially an affirmative action policy to try to provide a greater presence in the commercial fishery for aboriginal people. But it is very much a matter of policy, not a matter of law.

Mr. Culbert: How long has that been a policy?

Mr. Chamut: I would belive it has been policy since about 1993, that there have been efforts made to increase aboriginal participation through that means.

Mr. Culbert: Is it working?

Mr. Chamut: A number of bands have benefited. I know that for example in the crab fishery there were temporary licences issued and some went to aboriginal groups. I believe we've also had expanded opportunity in sea urchins, which is a developing fishery, and licences have been given to bands. I think it has provided them with some economic opportunity and I think it has worked to that extent. I don't believe that a large number of licences have been transferred through this means, but I think over time we will see a greater increase to the benefit of aboriginal communities.

Mr. Culbert: Thank you.

Mr. Chair, just to clarify it for the record, relating to a question or reference that Mr. Cummins made earlier, I've just done my studying of the Magna Carta, and I don't see, Mr. Chair, where there is a reference to fisheries issues with the exception of one, and that is in regard to fish weirs or removal of fishing weirs on rivers - more specifically, that all fish weirs shall be removed from the Thames and the Medway and throughout the whole of England except on the sea coast. That's the only fisheries reference I could see in the whole Magna Carta.

I'm wondering, Mr. Cummins, if that's fair - to see if there is somewhere that I am missing it. As I said earlier, I don't profess to be a lawyer.

Mr. Cummins: I don't argue with the Supreme Court judges. Have a look in Gladstone; it's there, item 47 or something like that.

Mr. Culbert: Thank you, Mr. Chair.

The Chairman: Our time is about out. Do you have another short snapper, John?

Mr. Cummins: A couple of quick ones, actually, if I could.

In Van der Peet the court said they couldn't demonstrate that the Sto:Lo actually had a right to a commercial fishery, and yet it might be thought that if any group could demonstrate that right, they could. Given that, I wonder what you think the chances are of other groups being able to demonstrate a commercial right to sell.

Mr. Price: I'm not sure I can express an opinion on it. The court has laid out the test. I think the importance of the Van der Peet case is the test that has been developed, and we will have to wait to see what evidence particular aboriginal groups are able to produce. As I said, and as I think Mr. Chamut has said, aboriginal groups are confident that they will be able to meet that test. But I wouldn't want to comment.

Mr. Cummins: Given that, and I appreciate your response, the 1996-97 estimates, Mr. Chamut, had a section on the aboriginal fishing strategy, as I'm sure you are aware, and you're preparing a discussion paper, as it says, on the future direction of AFS, and you will have a complete consultation with stakeholders by March 31, 1996. Was that done? Yes?

The second part says you are going to prepare a memorandum for cabinet in 1996, followed by development of an ASF policy document.

The question would be then, who did you talk to out there and what kind of an impact are these court cases going to have on the direction that you see this AFS going, given the comments of the counsel here?

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Mr. Chamut: Mr. Chairman, we did engage in a process of consultation through the course of last winter and early spring. We met with a very large number of groups across the country, representing aboriginal people, representing commercial licence-holders and organizations, as well as with sport fishers.

We met with most of the organized groups on both coasts to talk about the aboriginal fisheries strategy, to receive their views on the progress that had been made on the policy itself, and we do intend to submit a memorandum to cabinet shortly. Obviously the Supreme Court judgments do have some consequences for the legal framework, and as we said earlier, we are evaluating that. We do intend to review the issue of pilot sales further, prior to coming to final judgments.

The Chairman: Thank you very much for coming over. It was a very interesting morning. And I don't think this topic is exhausted yet, so we will probably have you back in the future.

Members, as you know, the Fisheries Act has been tabled for first reading. If you have any suggestions on where and when we should go in your ridings or your provinces, just let me know. We should have a meeting when we come back after Thanksgiving to determine where we want to go, and when we want to go with it, and so on. Just keep those things in mind. We'll see you October 29; I think our next meeting is on TAGS.

The meeting is adjourned.

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