FOPO Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, November 22, 1999

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[English]

The Chair (Mr. Wayne Easter (Malpeque, Lib.)): We'll reconvene with the Minister of Fisheries and Tourism, Kevin MacAdam, and Assistant Deputy Minister, Lewie Creed. Go ahead, Mr. MacAdam. There are some stragglers on the way, I understand.

Hon. Kevin J. MacAdam (Minister, Department of Fisheries and Tourism of Prince Edward Island): Thank you, Mr. Chairman.

First of all I'd like to thank Mr. Chairman, Wayne Easter, and certainly all of the committee for coming to Prince Edward Island to hear from the front-line people, especially the fishermen, and certainly the native groups and everyone involved here, on just how significant and important an issue this is.

I want to digress just quickly and talk about the Marshall decision that came down September 17. Obviously it has set off a chain of events. Literally and figuratively, it has rocked the fishing industry, not only in Prince Edward Island but in the Atlantic region.

The native community had their long-standing treaty rights upheld, and they were poised in many communities to begin to immediately exercise those rights in the commercial lobster fishery. Meanwhile, our commercial fishermen were left literally in a state of shock and were forced to watch from the wharf as others harvested a valuable resource outside the normal commercial season, with no apparent restrictions of any kind put in place.

I just want to take you back to give you an idea of how things have evolved here in Prince Edward Island, and give you a very brief review of our history in the lobster fishery.

If I go back to the early 1960s, anybody could purchase a licence in this province, both natives and non-aboriginals, for 25¢. In the late 1960s, because conservation-oriented problems were arising, a series of things happened with the industry. A trap limit was brought in, there was seasonality, there was limited entry into the lobster fishery, and regulations affecting spawning females were actually put into place.

In 1974, which was probably was the worst year the lobster industry has ever seen in Prince Edward Island, we went to 6.2 million pounds. In 1977, if you can follow the timeframe, we had the first federal-provincial buyback program, whereby the federal and provincial governments bought back 177 lobster licences, to bring us to the complement we have today of around 1,300.

That effort was made in the name of conservation, looking at where the stocks went and where they were. When they levelled off at about 6 million pounds, it was devastating to the industry. Gradually, as we went through the 1970s, the landings came up to about 11 million pounds and we saw a coming back of the stock. In 1991, we had probably the best year on record, with about 22.8 million pounds of lobster.

If you take an average for the whole of the 1990s, we had about 19.7 million pounds. I think this was achieved through a lot of measures that were put in place. Some were imposed and some were voluntary, but nonetheless they were accepted by the industry in the name of conservation.

I've worked with three federal fisheries and oceans ministers since I've been elected, and I've always made the argument that the fishery in Atlantic Canada and the lobster fishery in P.E.I. are not unlike the Auto Pact for central Canada. They are our bread and butter.

The lobster fishery is worth about $85 million in landed value in P.E.I. It is worth about 70% of the overall landed value of all of our fishery in P.E.I. We have 10,000 to 15,000 people who are dependent on it for their livelihoods; they derive their incomes from it. We can't afford to toy with this. We have to make sure it is protected, looked after, and conservation measures are kept.

I have to compliment our commercial fishers, who have made extraordinary steps over the last number of years to ensure that this continues to take place.

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In fact, if you go back to the FRCC report in 1995, one of the continuing issues for the fishery has been the scientific questions about egg production. Again, our fishers have done a number of things in conjunction with DFO. We've had escape mechanisms put in. Changes have taken place within the industry.

I go back to the seasonality. We have a fall fishery and we have spring fishery. If you will recall, back in 1998 the federal government decided that through DFO, we would have a multiple-year increase in carapace size. That was brought forward, again reluctantly on the part of our fishermen. We accepted that.

We went to Ottawa as an all-party group from the legislature. Fishermen from all across the province went there to discuss the question of whether or not we should go with the multiple-year increase. It was decided they would, because it was imposed upon them. After that we took it. I remember meeting with the federal minister and I talked to our colleagues here in P.E.I., again in the name of conservation.

I'm going to be a parrot here, but conservation is the overriding theme the industry has adhered to since 1960. We're asking that be kept paramount throughout all of these presentations.

My point in reviewing the brief history is to outline that the commercial fishers have put a significant amount of time, energy, and financial resources into enhancing, protecting, and furthering a fishery that is really their bread and butter in this province—the lobster fishery.

Regulations have been instituted to conserve the lobster resource. I think the theme of your past minister, Minister Anderson, was conservation, conservation, conservation. God knows we've heard that many times. Again, looking at the measures that have been imposed, one has to believe that is the overriding principle of DFO in its management of this important resource.

The frustration of ignoring some of these regulations is certainly understandable, but we are a little bewildered because DFO seemed sort of powerless, after the ruling came down, to adhere to or work on the conservation theme. I guess that goes back to the interpretation of the ruling.

The response of the native community in Lennox Island is also understandable. They're faced with economic challenges. Having had their rights to fish commercially proclaimed by the highest court in the land, the Supreme Court of Canada, they also want to exercise their rights.

Against that backdrop I have to say, as noted in the recent Speech from the Throne of about a week ago, our government applauded the approach that has been taken by the commercial fishers in this province, and certainly that of the native community in this province. My hat goes off to them because, unlike some of the flashpoints throughout Atlantic Canada, they were able to negotiate, discuss, and work to try to prevent some of the violence we saw in other parts of the region.

The one question we have to ask is where was DFO in a lot of this? We were in Quebec City the week after the ruling came down, at the national ministers meeting. We felt they were not as prepared as they could have been or perhaps should have been.

My contention is that there were two trains of thought, or two fields. One was the status quo. That assumed that if they had won the court case, life would have continued on as it should. The supplementary plan should have been that if they lost—obviously the court case was lost—a management plan would be ready to be put in place.

The inaction obviously has resulted in a lot of contention. I realize, and in some ways sympathize, that the ruling was so broad concerning the interpretation that if you took the position of either a commercial fisher or the native community, everybody was out doing their own thing.

If you were on the native side of the issue, obviously their right had been proclaimed by the Supreme Court. But on the commercial side, the fishers—again going through all of the history since 1960—had put in a lot of time, energy and investment, had adhered to the seasons, and had asked for a level playing field. All they had asked for originally was to have a level playing field.

I go back to the fact that if conservation is the measure on which we garner and look after the fishery, we have to have a level playing field for all.

On the September 17 ruling—and I've said this over and over; I've said it in some correspondence to the federal minister; I've said it in the legislature and I'll say it again today—not until the supplementary ruling has come out on the treaty itself....

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Lewie Creed, our assistant deputy minister of fisheries, was very quick to point out, in reading the original ruling, that it said: “The treaty right is a regulated right and can be contained by regulation within its proper limits.” When Lewie showed me that and when we went through the agreement, it was there; it was broad; it was in black and white. It was stated right in the original ruling. Unfortunately we've gone down the road where we've had to get another referral and interpretation to say what was there in the first place.

That aspect of the Marshall decision did not receive the focus of the press at the time, and I was somewhat concerned that it did not receive the necessary focus by DFO management either. The regulatory power rests clearly with the federal government, and since the decision, they have clearly done an inadequate job of exercising that power and discretion. As I've said, I'm not trying to personalize it, but the regulatory power was there and is there. It is a national resource, and it's the minister's responsibility to ensure that the theme of conservation is protected.

I want to say, in fairness, not for one minute do I underestimate the enormity of the task DFO was given or the issue DFO was asked to interpret from the ruling on September 17. As I said, I joined Minister Dhaliwal and others in calling for calm and restraint when we met in Quebec City following the decision. Again, I applaud the fishers in this province—the commercial fishermen and those of the native community—for adhering to those principles.

I was also very pleased when I heard the federal government had announced the two individuals who would do some of the negotiating: Mr. James MacKenzie and, more recently, Mr. Gilles Thériault. I commend the minister on both appointments, and I hope and I feel that they represent a willingness to try to solve this problem, as do you by being here on the committee.

In conjunction with the appointment of Mr. Thériault, the federal minister announced the terms of reference for the chief federal representative and assistant federal representative. Those terms of reference have a tone that seems rather intent upon further dividing, rather than working towards a solution.

Again, if you go back to the document, it refers to licensed, long-standing commercial fishers as simply “others with an interest in the fishery”. I'll go back to something I'm sure you've heard in presentations here already. These individuals referred to in the terms of reference are commercial fishermen in this province, who, as I said, since the early 1960s or probably even longer than that, have adhered to conservation; have invested a lot of money, a lot of time, and a lot of energy; have taken over their own ports and port authority; and probably are one of the most regulated industries, if not the most regulated industry, in the country—certainly in this part of the country.

I was talking to a number of them this morning before I came up here. They will not poison their own well. They are responsible. They know this is their lifeblood, their bread and butter.

It concerned me that within the terms of reference, they were referred to as “others with an interest in the fishery”. I contend that they have a significant interest in the fishery and should certainly be part of the solution.

It also guarantees funds to natives to participate in the discussions with DFO, and DFO has only committed to “consider proposals to help offset costs of other groups”. It states that negotiated arrangements will be subject to ratification by first nations, but again, there's no mention of the commercial fishermen ratifying any decisions that are made.

It speaks of endeavouring to complete arrangements by April 15, 2000, instead of setting a firm deadline earlier. We're all politicians, and certainly words that are rather vague.... I won't turn myself into a complete hypocrite, but you have to put.... This is such a paramount issue. “Endeavour” is a weak word. We have to carve something in stone. We have to assure the fisherpeople and the native communities that we will have regulations in place and that we will clearly define the ground rules, in fairness to both sides.

With all governments at the federal level over the years—it doesn't make any difference who they were—the fishermen were used to finding out the day before they had to hit the water what the rules were. In fairness, and paramount to this issue, we cannot afford to leave this to the eleventh hour. Everybody has to know what the ground rules are, and they have to make sure everything is in place before it's actually brought in, before the eleventh hour.

I implore this committee to make sure those regulations are sound, that they're very succinct, and that people will be fully aware of what they are prior to hitting the water.

The Chair: Excuse me. May I interrupt for a second, Mr. Minister? We have a fairly limited timeframe, so can you go through the last four pages pretty rapidly?

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Mr. Kevin MacAdam: Not a problem.

Again, the terms of reference, which are supposedly designed to solve the problem, seem to focus upon division, creating two classes of citizens. I find that rather troubling.

What also troubles me is the perception that the Ottawa bureaucracy does not yet appreciate or understand how things feel here on the ground in Prince Edward Island. Of course we've heard that before, and we've heard our chairman suggest things like that before on certain issues. They do not understand the level of frustration and the anger being felt in the fishing communities as time passes, with the uncertainty of the real impact of the Marshall decision.

The terms of reference fail to include any reference to tripartite discussions between natives, commercial fishers, and the federal government. They also fail to recognize the very useful process of dialogue that has begun here in P.E.I. between the Prince Edward Island Fishermen's Association and the native leaders. Failure to adopt these approaches represents a lost opportunity to build bridges, foster mutual respect, and enhance the chances for long-lasting solutions.

Mr. Chairman and committee members, I introduced a resolution in the legislature this week, and I'm proud to say it was an all-party resolution, one that was supported by both the opposition Liberals and the leader of the third party, the Honourable Herb Dickieson from the NDP. The resolution embodied the major elements the federal government must undertake in the implementation of the Marshall decision in Prince Edward Island.

The federal government must exercise its legislative authority, fulfil its regulatory obligations as recognized in the Supreme Court decision, and ensure it's a fully regulated fishery. In order to fulfil the conservation objectives, any plan developed to deal with the Supreme Court's decision must be based on sustainability and economic fairness to all, to ensure the native and non-native commercial fishers abide by the same rules when conducting the fishery.

We want to ensure provision is made for increased enforcement in the Prince Edward Island fisheries to protect the stocks and the rights of both the native and the commercial fishers to peacefully pursue their livelihood.

I mentioned earlier that I was troubled by some federal approaches to date. However, I am more encouraged with the recent clarification of the Supreme Court on the Marshall decision. The new decision emphasizes the authority of the federal government to regulate the treaty rights for the fishery and to provide guidelines surrounding those regulations. It also clearly recognizes that the regulatory authority extends to historic reliance upon participation in the fishery by commercial fishers.

I'm encouraged by our fishers and our native people and their ability to put the common good of the resource and the industry in proper perspective here in Prince Edward Island. Commercial fishers have repeatedly said to me they do not have a problem recognizing the native treaty rights or natives taking part in the commercial fishery, with the clear proviso that the rules are the same for all. In fact not much focus has been placed upon the fact that through DFO's aboriginal fisheries strategy, nine communal lobster licences, eleven communal rock crab licences, as well as communal licences for groundfish, mackerel, scallops, herring, oysters, eels, and smelts and an exploratory permit for shark, were accommodated into the fishery here in Prince Edward Island prior to the Marshall decision.

My plea is for the federal government to return our fishery to a fully regulated one that recognizes the native treaty rights but also recognizes the long-standing commercial fishery and the contributions that have been made by the commercial fishermen in this province. My plea is for the federal government to work diligently to create an atmosphere to allow natives and commercial fishers to pursue the fishery with dignity and peace.

I want to thank the group for allowing us to make a presentation here today.

The Chair: Thank you very much, Mr. Minister.

Mr. Cummins.

Mr. John Cummins (Delta—South Richmond, Ref.): Thank you very much, Mr. Chairman.

Minister, in your presentation here, early on you suggested the native community had their long-standing treaty rights upheld by the Supreme Court in Marshall on September 17. There's a school of thought out there that says, rather than having treaty rights upheld, in fact the court created treaty rights at that time, because the fish were not a part of the original treaty and were not mentioned in the original treaty. From my point of view, it's probably more correct to say these rights were created rather than upheld.

That being said, the original decision did give a priority right to natives to participate in the commercial fishery, and it did not recognize that others had rights. In your document you quite correctly note that the November 17 decision recognizes that the regulatory authority extends to the historic reliance upon participation in the fishery by non-natives.

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There were other matters clarified by the court in this stay, and I think that in denying the West Nova fishermen's association, the court in fact did give a partial rehearing. It gave a rehearing on the issues that were addressed by West Nova, essentially regulatory concerns.

Did the P.E.I. government encourage the federal minister to seek a stay, when he clearly had the right to, and a rehearing, so that you could get these kinds of clarifications?

Mr. Kevin MacAdam: When we originally met with the minister, it was literally the week after. We met with the deputy. We've talked to him in numerous conference calls. What we've been suggesting all along is, again, that there should be... We were calling for everybody to be taken off the water. And again, we were referring to that statement that it's a treaty right that can be regulated on the basis of conservation. We contended, and still contend, that if there's a set season—and obviously it's been carved in stone, whether it be the spring fishery or the fall fishery—based on conservation needs, every fisherperson in this province, whether this ruling came down or not, would have to adhere to those principles. If a commercial fisher went out fishing outside of that season and was caught, they would be charged with poaching.

What I was suggesting is that whatever the level playing field was, it had to be the same for everyone. We felt from the beginning, from reading the original documents prior to getting the secondary ruling on it, that certainly the power was there on the part of the federal government to ensure that everyone played by the same rules.

Mr. John Cummins: Certainly the second ruling was helpful because it clarified some of the misunderstandings that evolved from the first decision. The fact that the government didn't apply for a stay was actually commented on in paragraph 47 of the decision, where they suggested that if the government wanted to apply for a stay even now, the court would consider it. Obviously the court recognizes that there are many loose ends even after the November 17 decision. We've heard the effect of many of those loose ends in the testimony this morning.

So my question again, then, is has the P.E.I. government supported the notion or tried to encourage the federal government to seek a stay while some of these issues are clarified?

Mr. Kevin MacAdam: I'll approach that question in two ways. Certainly, we asked and requested that there be another interpretation, or, if you want to call it that, a “stay”. But you have to remember one thing. That's a court interpretation. There's a legislative ruling, or a legislative control authority. As I understand it—and again I'm not a lawyer—with the ruling that came down, in our conversations with Mr. Dhaliwal and his chief of staff, and with Wayne Wouters, his deputy minister, they said they had no intentions of going back to have a stay. I guess the legal people decided that the interpretation was as is, and that there was to be no further interpretation. Of course we've seen the fishermen from Nova Scotia taking issue with it and taking it back to court. The Supreme Court would not rehear it, but they did clarify some of the original points.

So to answer your question, yes, we wanted to make sure the federal government exercised the right—and, we felt, its legislative responsibility—based on the legal interpretation.. It said that the treaty right was an enforceable right under a management plan, and that's where we felt they should have been there putting that management plan forward. Upon our conversation, I couldn't make the federal minister go back to court. Certainly that's their decision. He specifically told all the ministers he would not be reappealing it, and I think from that perspective we have to say, okay, if you look at the document, it says it's a treaty right; it's enforceable, manageable, based on conservation. And that's what we asked for.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier (Bonaventure—Îles-de-la-Madeleine—Pabok, BQ): I'd like to thank the Minister and his deputy minister for coming here. I have read your brief. First of all, I'd like to make a comment and then ask a question, Mr. Chairman.

On pages 7 and 8 of your brief, you write that non-Aboriginal fishers are not asked to ratify the agreements that the Department of Fisheries and Oceans is developing with Aboriginal peoples. I realize that this may seem amazing, but I understood that, since the Canadian government was to negotiate on a nation-to-nation basis, that is, between Canada and the Mi'kmaq nation, the process should perhaps be carried out in this way. That doesn't prevent your observation from being a solid and justified one.

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I'd like to add a comment regarding your perception, described on page 8 of your brief, that the bureaucrats in Ottawa do not appear to understand what's happening on the ground.

The question that's haunting me is the following: the preceding Standing Committee on Fisheries, in its East Coast report, while looking at what was wrong with the TAGS, had already indicated to Parliament that there should be a review of the fisheries and the TACs. Do you think that it would be advisable, at a time when we're attempting to settle the Aboriginal crisis, to affirm that our way of managing the fisheries is not working? We had agreed unanimously, all party allegiances aside, that the administrative workings of the Department of Fisheries and Oceans should be reviewed.

Is it not time to bring changes to this management approach, to allow non-Aboriginal fishers to take part in decision-making? Furthermore, I would go so far as to request that you be involved too since you are the elected representative of the fishers of the province. Why shouldn't the province have a hand in it? When we look at the different levels of government, we see clearly that you are closer to the sea coast, in Prince Edward Island, than Mr. Dhaliwal, sitting in his office on Kent Street in Ottawa.

I wonder if the witness would like to comment on what I've said.

[English]

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Good question. Bonne question.

The Chair: Minister MacAdam.

Mr. Kevin MacAdam: There are a couple of points there. First and foremost, if you start with the last one, on the management or enforcement side, I've taken issue on more than one occasion with the bureaucracy in Ottawa. Unfortunately, what we've done is....

We have good people, and if you talk to any fishers in this province, certainly native or in the commercial fishery, I think they'll tell you we have good people, good fisheries officers, out there. But they're underfunded. They're understaffed. They have a lack of resources. They're also being asked to put in place a lot of management plans where, really, they lack the materials and the supplies to go with it.

If you want to find out what's going on, then, to use an old cliché, you have to get down where the rubber meets the road. In my opinion, Ottawa is too far away from us. As a province, certainly we want to be consulted, but when you cross that wharf, you're in federal territory.

We've seen that. We've gone to Ottawa over carapace size. We've been trying to get into the shrimp industry and other particular fisheries. No sooner do we raise that flag than we're told by the federal government, “That's our territory. That's our decision.”

I respect that, but at the same time, if you want to talk about fisheries and you want to talk about management, it's the responsibility of the federal government to ensure that the management plans are put in place, the enforcement is there, and also that the people are there.

I think you have to consult the fisheries people, no matter if it's Prince Edward Island, Malpeque Bay, or anywhere in the country, because they are where, as I say, the rubber meets the road. They're out there every day.

Again, talk to some of the DFO officers you have on the ground. Don't talk to somebody in downtown Ottawa. With the greatest of respect to some of them, I don't think they've seen the end of a wharf.

I say get out there and talk to the fisherpeople, talk to the enforcement officers on the water, and you'll find out what's happening or what's not happening out there in the fishery.

The Chair: Mr. Assadourian.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): Thank you very much.

I've been on this committee for the last month and a half. I have to tell you, I just fish for a hobby.

Mr. Lawrence D. O'Brien (Labrador, Lib.): He fishes the Great Lakes.

Mr. Sarkis Assadourian: What I've learned in the last month and a half is that fisherpersons, or fishermen, will tell you their grandfather and great-grandfather were also fishermen. It's a family tradition. Everyone wants to leave their kids the fishery, and wants them to be able to catch fish.

What I'm saying, then, is that it's because of the family. You may remember the 1970s and 1980s, when farmers went through the same situation. They lost their farms, not necessarily of their own choosing but because of environmental reasons. El Niño changed the weather—for instance, they got too much snow and here we didn't get enough, and so on. So the environment affects fishermen's lives and it affects farmers' lives.

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In fact, fifteen years down the road maybe we won't have enough fish no matter what you do, no matter what the provincial government does and no matter what the federal government does. There are things beyond our control.

Do you have any plan for these people to fall back on when that day comes for the fishers of this province?

Mr. Kevin MacAdam: I guess that's hypothetical, but I think you've witnessed that already. We've seen what can happen. Take the cod fishery, and how it's affected Atlantic Canada, certainly Newfoundland. Mr. Matthews is fully aware of that, as are any of my colleagues, whether from P.E.I. or anywhere in the region.

This fishery here is different, in many ways, because of conservation, because of the measures we've put in place. That's not to suggest we couldn't do more. Our fisher people are doing more every year—being asked to do more and being told to do more.

I think what they're doing is trying to protect a fishery that is working well for the moment, probably because of the controls we have. We have trap limits. We have seasonality of the industry, spring and fall. We have gauge measurements. We have enforcement. We also have good commercial fisher people out there who are adhering to all the principles.

As you yourself said, sir, it's so that there will be a fishery for their sons, their daughters, their grandsons, or somebody in the future. At the same time, we have to make sure we protect what we have. It's a healthy fishery, a viable fishery, today, but if we don't continue to protect it and make sure the management and conservation stays there, we'll not have a fishery to pass on to anybody.

I think if we've learned anything from the post-cod syndrome, as I call it, it's that we have to ensure that we don't allow a collapse of a viable fishery, because that is our bread and butter in this province. It's worth $85 million to $100 million in landed value and 10,000 to 15,000 jobs. For 130,000 people in Prince Edward Island, that's a lot of money and a lot of jobs.

You can look out here and see communities all across this area that are dependent, not unlike any other region in the area, but because of our denial of entry into other fisheries, we solely and singly depend primarily on the lobster industry as our bread and butter.

If you want to make this work, sir, and you want to ensure that there is a future for people in this industry, then the commercial fishermen are saying that before somebody goes in, you have to take somebody out. There are two things you have to put in place. You have to level the playing field, and I think you're going to have to waive the capital gains tax. If you're a fisherperson and you know that some 1,300 people are viable in the industry today, and the possibility exists for another one, two, three, 100, 500, and possibly 900 eligible individuals to fish in this province, then I think you have to sit down with the fishermen and be prepared to put money on the table.

If a licence is worth $300,000 and they're looking at a 6% capital gain, then who's the fool? I mean, they're not going to sell, especially if there are 20 years left in their livelihood or even 10 years left in their livelihood. So I think the federal government has to be prepared to not only put money on the table but also look at the capital gains issue and make sure we don't have an over-combination of licences in any one area.

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: I thank the minister for coming today and for mentioning the finest MLA on the island, I think, Dr. Herb Dickieson. Quite obviously, you and your department—

The Chair: That isn't in your terms of reference, Peter. Do you have a question?

Mr. Peter Stoffer: —have been listening to him, because much of what you say, I agree with.

Prior to the Marshall decision on September 17, my understanding is that New Brunswick and Nova Scotia separately made submissions to the Supreme Court, before their decision. Did P.E.I. make a submission to the Supreme Court?

Mr. Kevin MacAdam: Well, we did. I stand to be corrected, because I know members of the PEIFA are here, but they were asked, I believe—and I'm not going to speak for them—to be part of a group from Nova Scotia. I guess they were doing some negotiating on their own. We certainly were in touch, literally on a daily basis, with the Department of Fisheries as well the fishermen's association in the province.

I would go back to a question raised earlier by Mr. Cummins. One of the things we said from the beginning was go back to court to prove what was already in the original statement, that the treaty right is an enforceable right. It was there from the beginning. That's something we contended.

Mr. Peter Stoffer: Okay. But did you make any submissions formally before the decision?

Mr. Kevin MacAdam: No, we didn't.

Mr. Peter Stoffer: I ask that because you're right in saying that the DFO and the minister at that time, Minister Anderson...and now it's Minister Dhaliwal. There have been so many ministers in the last few years, it's been like a revolving door. I think that's one of their problems.

The fact is, they were definitely caught with their pants down and were woefully ill-prepared to deal with this decision.

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But I put it to you as well, sir, and I say this with all respect, that the provinces themselves, knowing how badly DFO manages the industry, how badly they regulate the industry, and how badly they do literally everything, should have been prepared for a decision as well. I put it to you that the provinces themselves were also ill-prepared to deal with this decision and the fallout of that concern, so—

Mr. Kevin MacAdam: I'll make one contention. Obviously, with the greatest respect, you're in Ottawa and you're from Nova Scotia.

Mr. Peter Stoffer: Yes.

Mr. Kevin MacAdam: The legislation: if I cross the wharf down here at Stanley Bridge, that's federal jurisdiction, and all the provincial legislation in the world doesn't change any decisions Ottawa makes that are based in legislation. So it's rather ridiculous to suggest that our preparation would be anything other than to make sure that Ottawa was prepared to put something in place after the decision was made. We don't have laws that supersede those of the federal government.

Mr. Peter Stoffer: Correct.

Mr. Kevin MacAdam: If we did, believe me, we'd have shrimp and we'd have access to other fisheries. We don't have that power. That's a legislative responsibility of the federal government. So for you to suggest that the province should have had the foresight...and we've had this discussion. The original decision—if you've read the decision, as I'm sure you have, sir—was that it was an individual who was brought to task on an individual fishery.

Out of that came this ruling that you're sitting here dealing with today, and that's the contentious issue of who's involved in it and what they are allowed to have in every fishery—and right now we're talking about the lobster fishery.

I contend that the provinces were taken off guard; there's no question about it. Prince Edward Island was, just as much as anybody else. But the federal government was the one that took Mr. Marshall to court on the particular issue, on a violation. The court made a ruling, and the federal government should have had the implementation plan ready to put in place.

Mr. Peter Stoffer: Okay, and—

The Chair: Mr. O'Brien.

Mr. Lawrence O'Brien: Thank you, Mr. Chairman.

Thank you for your involvement and your support. We dealt with this issue in Quebec City in September, just shortly after the decision. Your cooperation and involvement have certainly been noted from our perspective.

I have a two-part question. I'd like to ask you what you think of the process that's underway with Mr. MacKenzie and Mr. Gilles Thériault. The other point is this: in light of where we're going in terms of the interim up to April and subsequently the long term thereafter, what do you see that you, as a minister, with colleagues of yours, can do in assisting us both at the committee level and at the DFO level in bringing resolution to this issue?

Mr. Kevin MacAdam: Thank you.

In regard to Mr. Thériault and Mr. MacKenzie, I haven't met them yet. I'm looking forward to sitting down and talking to them. When they come to the province, they obviously want to make sure that they consult with both the native community and the commercial fishers. We would like to sit down and talk to them. As a minister, I feel that we are probably a conduit to the federal government, to pick up the phone and hopefully call the minister to make sure issues are brought forward that might not otherwise get an airing, to ensure that we can come to a speedy resolve.

I guess the role of the province is to make sure.... Even though we don't have legislative responsibility, I have to look at assisting the citizens in the province. As a member, I have four or five fishing ports in my own district. I know what it would be like and how devastated those areas would be if something were to happen to our bread and butter, the fishery industry, the lobster industry.

As minister, I'm charged with the responsibility of making sure we know Ottawa is working on this issue, and that through Mr. MacKenzie and certainly through Mr. Thériault, they will put a solution forward speedily so that fisherpeople and the native community will know what the ground rules are.

I would hope that we will—and again, I implore you to—push Ottawa and make sure the minister and everyone has those ground rules clearly defined and put in place well before the fishermen hit the water, because I think that in fairness to everybody, everybody has to do this. Input through this committee, and certainly through ministers meetings and what have you, will ensure that the level playing field will be there for everybody.

The Chair: Mr. Duncan.

Mr. John Duncan (Vancouver Island North, Ref.): Thank you, Mr. Chair.

Five days ago the Supreme Court, regarding the Marshall decision, said it will entertain arguments from the Attorney General of Canada or the Attorney General of New Brunswick on whether it will grant a stay. So my question is this: is the Government of Prince Edward Island going to request that either New Brunswick or Canada apply for a stay?

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Mr. Kevin MacAdam: I don't pretend to be an expert, but as I understand it, New Brunswick has some other issues outside of the fishery industry. I remember reading something in the paper today. They're talking about logging, mining, and other areas. Hence, the stay now, I think, revolves—again, I stand to be corrected—more around those particular issues, perhaps, than the fisheries issue.

As I understand it from the interpretation that was handed down, the secondary interpretation, the Supreme Court was not prepared to put a stay on the original hearing; they were going to clarify what the original intention of the ruling was, that is, they re-emphasized the fact that it applied to certain fisheries, that it was related to the lobster fishery, that it was an enforceable treaty right by the federal government. As I understand it...and I haven't talked to our Attorney General, but certainly it's something we'll be talking to, to New Brunswick and the federal government, and through this committee.

To make a long story short, we feel the necessary tools in the toolbox are complete and there, based on what we said originally and what was reinforced in the further ruling: that the federal government, under the minister, has legislative authority through regulations to ensure that there's a level playing field.

Mr. John Duncan: I think that's a no.

Mr. Kevin MacAdam: No, I didn't say that.

Mr. John Duncan: You're considering it.

Mr. Kevin MacAdam: Sure.

Mr. John Duncan: Okay.

The Chair: Last question, John.

Mr. John Duncan: Are you familiar with the seven principles that have been put out by the fishing industry alliance?

Mr. Kevin MacAdam: Yes, I—

Mr. John Duncan: Based on that, then, would you be prepared to endorse those seven principles? In many ways, they're mirrored in your presentation. That's why I ask.

Mr. Kevin MacAdam: Well, I guess one of the things I'm supporting more specifically, I guess, would be those of our own P.E.I. Fishermen's Association and the Prince Edward Island perspective. Certainly I respect the perspectives put forward by other jurisdictions, but call me selfish to a certain degree. Prince Edward Island has put forward a set of guidelines. I think they might have been outlined earlier by the PEIFA. From a provincial perspective, we endorse those.

The Chair: Thank you, John.

Mr. Minister, on page 11 of your submission you talk about how not much focus has been placed on the aboriginal fishing strategy that has been in place. You talk about the nine communal licences granted and the nine other species for which licences have been granted under the aboriginal fishing strategy. What's your view on the licences already granted under the AFS? Are you suggesting that they should be credited to the rights recognized by the Supreme Court in the Marshall decision, or separate and apart?

Mr. Kevin MacAdam: Sure, they should be.

The Chair: They should be...? You're saying they should be credited, then, to the calculation of the rights granted under the Marshall decision.

Mr. Kevin MacAdam: Absolutely.

The Chair: Okay—because it isn't specific.

Joe, do you have a question?

Mr. Joe McGuire (Egmont, Lib.): I have just a short question. I know you've been giving the committee some advice and giving the minister some advice in your direct negotiations with him. You say you want the same ground rules for all the partners in the fishery.

What would you suggest? You're saying that you put one licence in and you take one licence out. The question is going to be where those licences you're taking out should come from and what the value of those licences might be—but specifically where those licences should be taken from. Obviously there are going to be a lot of ports that are not going to see an aboriginal, period.

Mr. Kevin MacAdam: Yes.

Mr. Joe McGuire: A certain small number of other ports are going to see the vast majority of the fishing that is going to be taking place. Is it fair to be...? Well, what would your advice be?

Mr. Kevin MacAdam: Well, I guess what I would look at—again, this is from talking to our own fishermen. When I say one has to go out and one comes in, personally, if I were to buy a licence today, or you were to buy one, Joe.... Traditionally, you would have to go to the port from which you've purchased the licence, and fish there.

• 1400

Again, I was talking to three or four fishermen this morning about the relationship that they had. In most cases, if you bought a licence in North Lake or somewhere else in the province, you would fish for a little while out of that port, or you would ask permission to bring it back to wherever your home port is.

We have commercial fishermen all over this island who travel from Souris to Tracadie, or from Tracadie over towards Montague. There are people from the south side or people from up west who travel down to the central parts of the province. To me, transportation isn't an issue today. One of the conservation principles is that it would be very unfair to put an over-concentration of licences in any one area, Malpeque Bay in particular.

If you buy a licence somewhere, particularly if the federal government is going to be part of the purchasing of that licence, then there should be covenants put on that particular area. If there is an over-concentration of licences in any one area, that has to be looked at and has to be prevented if possible. I think we do that now, in many ways, and the fishermen and the ports police themselves in doing that.

So I guess my answer to your question would be that we do not need an over-concentration of licences in any one area. If one fisherperson comes out, then one can go in.

Mr. Joe McGuire: Good.

The Chair: Thank you, Mr. Minister, and thank you, Lewie.

Mr. Kevin MacAdam: Thank you.

The Chair: We'll call on Bill Murley, of the P.E.I. Shellfish Association.

I don't believe you have a written submission, do you, Bill? Fire away.

Mr. Bill Murley (President, Prince Edward Island Shellfish Association): Gentleman, how are you? I'm Bill Murley, president of the P.E.I Shellfish Association.

The Chair: Welcome, Mr. Murley.

Mr. Bill Murley: Thank you, Wayne.

We were asked here today to give our views on the Marshall decision. You people just spoke about our aspect of fishing. As that fellow said, we're a couple of rungs down the ladder, right? Shellfish are still a big, important industry on P.E.I. The industry employs roughly 700 to 800 people, and there are approximately 1,200 oyster licences out there that can be fished.

I'll start from the top.

We at the P.E.I. Shellfish Association would like to see the native people fish in the shellfish industry, but under the regulations that are in place now. That's the big thing with everything that's going on with this Marshall decision. It's whether or not there are going to be enough fish there for now and for in the future. Without this happening, our shellfish industry could be destroyed within one or two years. That's especially if it's not regulated. With year-round fishing, it would be ruined.

The fishing industry on P.E.I. cannot stand 400 to 500 new entrants into the existing industry as it stands right now. But with the meetings and consultations that will be going on, and with all this that's been taking place ever since this decision came down, I think things could be worked out by talking with our groups and native people throughout the winter months. We have to stop to look at it, see where we are, and keep looking at what's happened in the industry. It's a good industry as of now. There's a lot of work done in it. I've been involved in it for quite a number of years now, and I think that if we talk throughout the winter with DFO and the provincial people....

• 1405

The way this let a lot of these people in.... If they were to buy the existing licences that are out there and aren't being used, a lot of people could come in and we wouldn't be putting anything extra into it. With the amount of licences that aren't being used, our native people could get into the fishery. But to have a whole pile of people just coming into the fishery and fishing the whole year around—I don't think those of us who have been working in it for years would be there after the first year, because there wouldn't be enough for everybody. With common sense, with what their chiefs have said so far, and with how they have come along with it, in my mind things could work out for the best for both our parties in this industry.

The Chair: Thank you, Mr. Murley.

Mr. Cummins.

Mr. John Cummins: Thank you, Mr. Chairman.

Mr. Murley, that last point you mentioned about buying licences that aren't being used is a way of gaining entry for natives into your fishery. In British Columbia, we had an instance a few years ago in which a large number of Vietnamese fishermen came into the industry and bought up crab and shrimp licences that had been underutilized. These were licences for the Strait of Georgia, and they quite correctly exercised the right that was granted under their licences. But in short order, we had problems with stocks, because the stocks weren't able to sustain everybody who was entitled to them and who was fishing to the full extent allowed by the licence. By the time DFO cottoned on to what was going on, those stocks were seriously depleted.

If these licences that are being underutilized now are bought up by someone who is interested in pursuing them to their fullest extent, is there a danger that we could damage the stocks if they're not carefully monitored?

Mr. Bill Murley: Maybe yes and maybe no. With the regulations that are in there now, I don't think it would hurt to a great degree.

As you know, this industry takes a lot of hard work. It's not like pulling a lobster trap over the side of a boat. We're using tongs, and it's hard labour. Some will buy an existing licence and fish for a little bit, but they'll not fish any more if they figure they're not making enough money.

So to a certain degree, I don't think it would hurt the industry. The more our industry and our grounds are turned over, the better the production that comes out of it.

With the licences that are out there now...I'll give you one indication. We've done some work down home in our rivers, and we put out pretty nearly 5,000 boxes in the West River. We took this out of the channel. If we have dollars to keep this going and they can take the saleable stuff out of what we remove and put it on the existing beds, and if the small stuff stays there, there's always that small stuff for the future of the industry. Do you understand what I mean?

This stuff is in deep water, where nobody can get it. We drag this stuff out and put it on the existing beds on the flats on the channel bank. When that stuff is put out there, there's always small stuff in it. If this existing small stuff stays there, it allows for the future of the industry to keep coming along. The more this is worked, the more the future of the industry will carry on.

But as you said, yes, if all these licences get out there, there is a possibility that the stocks would be depleted in some areas, and we would have to start working to bring them up again.

With all respect, sir, we're the only people in the fishing industry who are enhancing our industry on public grounds. We do it through our provincial people. It was with federal counterparts at one time, with dollars. We get so much money and we do the work wherever we see fit, wherever it will sustain the fishing. This is the way it has been carried on for the last twenty years that I've been there.

Mr. John Cummins: In a sense, it's almost farming the resource.

Mr. Bill Murley: You're right, sir.

Mr. John Cummins: You have the wild stock and it—

Mr. Bill Murley: Yes.

Mr. John Cummins: There's also the notion in this Marshall decision about the moderate livelihood and what that means. I guess part of the concern of lobster fishermen is that the modern livelihood would be extricated, if you will, from the current lobster industry. It sounds as though your view might be that the modern livelihood may be taken across the range of fisheries that are available, rather than simply from one.

• 1410

Mr. Bill Murley: In the lobster industry, you must look at it in a different manner. As I said, the lobster fishery is a rich fishery on P.E.I. It always was. The shellfish industry was down quite a bit a few years ago, and when we started doing extra enhancement work, that brought it back up. So you can make a good livelihood out of what you do if you work at it, and that's the main objective if you're going out there to fish oysters. But as I said, it's intensive, hard labour, if you want to put it in that sense, and really you can do very well at it. Some do and some don't. It's just like other aspects of business. Some do and some don't make it.

Mr. John Cummins: Are you aware of the seven principles that have been put forward by the fisheries alliance?

Mr. Bill Murley: No, I never had any papers on that.

Mr. John Cummins: Okay.

The Chair: Mr. McGuire.

Mr. Joe McGuire: Thank you, Mr. Chairman.

I wonder if you have any idea how many natives might prosecute the oyster fishery.

Mr. Bill Murley: Do you mean how many would get into the oyster fishery?

Mr. Joe McGuire: Yes, do you have any idea on that?

Mr. Bill Murley: No, I have no idea.

Mr. Joe McGuire: So you're more willing to have any new entrants into the fishery buy the unused ones, rather than the ones that have been exercised now, which would put additional pressure on your fishery.

Mr. Bill Murley: Yes. As I said before, it depends on what area of the island they come from and where the fishery is located.

Mr. Joe McGuire: It sort of contradicts what you say, though. You're afraid of a lot of extra people getting in because it's going to ruin your fishery. Why wouldn't you take the stance that any new licences should be taken out of the ones that are actually being used, instead of—

Mr. Bill Murley: Yes, it could be either way. I see your point. It could be either the ones that are being used or the ones that aren't being used.

Don't get me wrong. If there are people out there who have oyster licences.... In the area you come from, there were a lot of back-pocket licences. In the last three years we worked at our industry, and that enhancement work has come good, but then all of a sudden these back-pocket ones keep coming out.

Sure, we don't mind that, because they have the right. They paid for that piece of paper to fish. The same as the native people in the Marshall decision, they have the right to do it. But we would like to see these people come into our industry with either the licences that are existing now or the ones that are active. You're right, it would be better to see the ones that are active rather than the ones that are inactive.

Mr. Joe McGuire: What's a yearly licence worth now, on average?

Mr. Bill Murley: It's $30 for spring and fall. That's what we pay.

Mr. Joe McGuire: That's what you pay for a renewal?

Mr. Bill Murley: Yes, a renewal.

Mr. Joe McGuire: If you were going to sell a licence, what would you get?

Mr. Bill Murley: Well, sir, that's a horse of another colour. They would be looking for anywhere from $15,000 to $20,000, to $22,000. It used to be quite cheap. It used to be $400 or $500, as far as I understand.

Mr. Joe McGuire: So your fishery is basically getting more valuable as the years go by.

Mr. Bill Murley: Yes, it is, and in the area you come from, you know how much fish is being landed in some areas up there.

Mr. Joe McGuire: It is a vital industry in the area I come from.

Mr. Bill Murley: Yes, it is. It employs a lot of people, not only on the water but in these plants and the shipping of it and everything. When you take into consideration that our industry is only small compared to your lobster industry and other industries, this industry looks pretty darn good, because it is now next to the lobster industry on P.E.I. I'm talking about the mussels industry and everything combined.

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: I just want to say thank you for your presentation. I always say it's indeed a pleasure to come to Prince Edward Island. Just to have a feed of oysters and mussels is a treat in itself, and I'm sure I speak for other members of the committee.

Mr. Sarkis Assadourian: No, not me.

Mr. Peter Stoffer: Some people say it's as good as Viagra.

The Chair: That's an advertisement.

• 1415

Mr. Peter Stoffer: My question for you, sir, is who regulates your industry? Is it the province or DFO?

Mr. Bill Murley: DFO does.

Mr. Peter Stoffer: Who issues the licences for you, DFO?

Mr. Bill Murley: DFO.

Mr. Peter Stoffer: Okay, very good. So any sort of buy-back or inclusion would have to be from the DFO, the federal government.

Mr. Bill Murley: Well, you and the DFO and the person you're.... Oh yes, in that manner of speaking.

Mr. Peter Stoffer: You talk about the labour-intensive work you do. Run us through it very quickly. If you were out on your beds and your were going to pull oysters up, what's the process for that? Describe that to me. I've seen it, but describe it for the committee.

Mr. Bill Murley: There are what's called oyster tongs. They go together like two rakes. You go out and find where the oyster beds are. You know where they are—or most of us do, anyway. You go out and start raking. Sometimes you get one, two, three, four, or ten. Sometimes you might get fifteen oysters. But they all have to be cleaned.

If you've fished there with a four-pint box, sometimes it takes a long time to fill it. But when the fishing is good.... I'll give you an indication: Spring fishing was pretty good in all the areas in P.E.I. where they fish oysters. You could get roughly 10 boxes a day for the first two or three weeks. Then, as the fishing goes on, it goes down slowly.

You can get enough out of it every year in the spring and fall fishery to do pretty well. But the main crop is right there for the first two or three weeks after the growth and everything all summer, for the fall fishing, and vice versa for the spring fishing. That grows all summer, and then some of the small stuff is big enough to take again the next year. It's just a continuation of farming or working the bed.

Mr. Peter Stoffer: Mr. Murley, would your organization be responsible at all to oversee the Irish moss in this year's season?

Mr. Bill Murley: No, sir, that's entirely separate.

Mr. Peter Stoffer: Very good, thank you.

The Chair: Okay, are there any other questions?

Thank you very much, Mr. Murley and Mr. MacLean.

Mr. Bill Murley: Thank you, gentlemen.

The Chair: The next witness is Chief Charlie Sark, Lennox Island Mi'kmaq Band. Also present is Tracy Cutcliffe. A presentation has been handed around.

Go ahead, Charlie. The floor is yours.

Chief Charlie Sark (Chief, Lennox Island Mi'kmaq Band): First, I'd like to say it gives me great pleasure to make this presentation on behalf of the Lennox Island Band Council and the people of Lennox Island and the members who belong to Lennox Island Reserve.

Mr. Chairman, honourable committee members, ladies and gentlemen, before I discuss the legal and political implications of the Marshall decision, I would like to talk to you briefly about what the decision means to the Mi'kmaq people.

As I am sure you are aware, aboriginal communities suffer from the highest unemployment and poverty rates in the country. Aboriginal communities are struggling to overcome the overwhelming social and economic problems resulting from federal initiatives such as centralization and residential school policies. Even in 1999 our members are faced with racism and a level of continuing public support for the racist premise of assimilation, although today you will find it expressed as support for equality of all people.

The Marshall decision instilled a level of optimism in our communities that had not been seen for many years. At the risk of relying on a well-worn catchphrase, I'll say our people were empowered. There are many aboriginal people who do not feel the level of control over their own lives that most non-aboriginal people take for granted. For many, the Marshall decision gave them a sense of control that wasn't there before the Supreme Court ruling. Our treaty right had finally been acknowledged.

On a very practical level, many individuals were able to come off welfare and support their families. Such a step has an extremely positive effect on the individual as well as the first nation community.

• 1420

I would urge you to keep these simple issues in mind as you deal with the complex legal and political issues arising from the Marshall decision.

When the Supreme Court of Canada issued the Marshall decision on September 17, 1999, it did two things in P.E.I. First, it vindicated the Mi'kmaq of this province. We have always maintained that the treaty signed by our ancestors granted our right to hunt, fish, and gather on a commercial level. Secondly, it provided a considerable challenge to our people, the non-aboriginal harvesters, and the government. It is this challenge we have wrestled with and continue to wrestle with today. How can we, the Mi'kmaq, the non-aboriginal harvesters, and the government cooperatively develop a system that accommodates the constitutionally protected treaty rights of the Mi'kmaq people and ensure the peaceful co-existence of all harvesters?

The Lennox Island Band has been working to meet this challenge since the day the Marshall decision was issued. We immediately engaged our community in discussions and the decision-making process with respect to the implementation of the treaty rights to fish. We acknowledged from the outset that the exercise of the right would be regulated. Our community was made fully aware that while the justices of the Supreme Court affirmed our treaty rights, they also confirmed that the government could regulate the rights.

We acknowledged the high court's confirmation of the collective nature of the treaty rights from the outset. It was explained to our members that although the treaty right to fish could be exercised on an individual basis, it was a collective right and the collective community was in a position to make decisions that would impact on the manner in which that right could be exercised. The vast majority of our members accepted and were supportive of these two important aspects of the court's judgment. In fact, the Lennox Island First Nation was the first Mi'kmaq community in the region to implement an interim regulatory regime.

We took immediate steps to ensure that interim measures were established with respect to any fishing activity resulting from the Marshall decision. Steps were taken to ensure that the fishing activity was controlled, monitored, and sensitive to conservation, public safety, and our long-term goal of equitable access within the existing fishery. To that end, our community imposed limits on the number of lobster traps any individual or family was eligible to fish and supported all the existing conservation measures, such as carapace size and the return of egg-carrying females.

Ultimately the community decided that our long-term goals were best served with a voluntary end to fishing. Naturally, the steps taken by our community were interim in nature. As I have already stated, we accepted then, and we continue to accept, that our treaty-based history will in the end be contained within the broad regulatory regime of the federal government. However, after being denied a treaty for 240 years, it would have been difficult or impossible to expect that our members would not want to exercise that right.

Had there been any real potential for our very limited fisheries, following the Marshall decision, to impact on conservation, we would have ensured that our people stayed out of the water. However, as you know, and as has been confirmed by both independent and DFO biologists, the small fishery that took place as a result of the Marshall decision had no impact on the health of the lobster stocks in Malpeque Bay.

We accept that the federal government has the authority within its legislative purview to regulate the exercise of the treaty rights. However, we have also understood from the outset that such regulation by the federal government must be justified. In accordance with the test set out first in the Supreme Court of Canada decision in Sparrow, later applied to the court's decision in Badger, the Supreme Court confirmed this reality last week in its reasons for the rejection of the motion by the West Nova Fishermen's Coalition for a rehearing and stay of the Marshall decision.

• 1425

The minister cannot use his arbitrary discretion to limit the treaty right through regulation. The objectives of the legislation must be valid, and the honour of the crown must be applied. One of the most important related requirements is consultation. The crown must consult with the Mi'kmaq in order for any such regulations to survive.

Once again, the court made a point of confirming this aspect of the Marshall judgment, the consultation requirement, in their recent decision in the motion of the West Nova group. With respect to consultation, the court referenced their decision in Delgamuukw, which found that the nature and scope of the duty to consult will vary depending on the circumstances.

Ultimately, as the court confirmed last week, if consultation does not produce an agreement, the adequacy of justification of the government's initiative will have to be litigated in the courts. Mr. Chairman, the prospect of further litigation is no more appealing to the Mi'kmaq people than it is to the federal government.

It is for this reason that we have begun the process of internal regulation development on a local and regional level. In order for the consultation process to be effective, we must determine how we wish to regulate the treaty fishery internally. Specifically, we must determine how the collective rights should be exercised at the local level.

This determination can only be made through full consideration of a number of important factors. Meaningful consultation will involve a number of difficult questions, including the following. What level of access is required for immediate purposes for our members to be able to fish for their moderate livelihood? What process can we utilize to address the evolving access required of our community? How can we best ensure that the treaty right is exercised in a manner that is consistent with traditional values of our people with respect to harvest of natural resources? What are the valid conservation considerations with respect to each species? What are the concerns and the requirements of the non-aboriginal harvesters?

There are a number of processes that must be utilized to answer these questions. Our first nation has already begun to develop a process at the local levels to determine the immediate access requirements of our community. We are also involved in the regional Mi'kmaq, Maliseet, and Passamaquoddy process, which is intended to address the broader tribal issues. Included among these issues are the development of a process that will accommodate the evolving access requirements of communities, the development of policies for our tribal nations that will guide the resource harvesting activities of our people, and the research and dialogues necessary to determine what the valid conservation concerns are for each species.

We are committed to open dialogue with the non-aboriginal harvesters aimed at achieving a peaceful coexistence in the fishery. In fact we've already engaged in preliminary discussions with various harvester representatives, and it is our hope that through these discussions we will be able to reach a mutually satisfactory agreement that is both sensitive to the non-aboriginal harvesters and accommodates our treaty right to fish for a moderate livelihood.

In its reasons for the rejection of the West Nova group motion, the Supreme Court re-emphasized the importance of negotiation with respect to the issue of treaty right implementation. The court stated:

As this and other courts have pointed out on many occasions, the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern day agreement for participation in specified resources by Mi'kmaq rather than by litigation.

Mr. Chairman, it is important for the federal government to recognize that in order for the negotiation process to be effective, it must provide the political and financial support necessary for the development of the various processes discussed above. We need the federal government's support at the local level for the process of needs assessment and community involvement. We need the federal government's support at the regional level for the development of processes to address evolving resource access requirements, and the development and implementation of tribal nation policies. We need the federal government's support for the process of dialogue and negotiation with the existing non-aboriginal harvesters. Most importantly, we need the commitment of the federal government to support the integrated solutions developed through these various processes.

• 1430

In order to achieve equitable and mutual satisfactory agreements that will allow for a justifiable regulatory regime, the federal government must commit the political will, including the necessary funding, to the initiatives we have already established. It is imperative that the federal government understand it does not have the answers. The federal government cannot meet the challenge presented by the Marshall decision unilaterally. In order to avoid further unrest, further litigation, the federal government must accept that the process must be truly cooperative. Neither the Mi'kmaq nor the non-aboriginal harvesters will accept the federally imposed solution that was developed in a vacuum.

The best possible way for the federal government to ensure an acceptable solution for all those involved is to provide the political and financial support required at the local and regional levels and commit to a truly cooperative process.

Thank you.

The Chair: Thank you very much, Charlie.

Mr. Duncan.

Mr. John Duncan: Thank you for the presentation.

I'm concerned about what I read in the very opening paragraph of your document. Because of my family history, I'd like to try to clarify your comment, because you're basically using the concept of racism gratuitously, I believe, and you're equating racism with expressions of support for the equality of all people. I have concerns about that.

My question to you is, does this somehow mean that you do not believe in the equality of all people? I don't believe that's the case, but I have to ask the question.

Chief Charlie Sark: It's not the case that we don't believe in equality for all people. I guess the fact is that until such people as you, Mr. Duncan, have gone out and lived within the communities of the aboriginal people, you would probably not see the type of racism that is expended upon people. You would have to put yourself in my shoes and travel through this country from the age of 11 till now and still see the racism that's being presented, not only in the local communities but on TV and in public forums. As much as you'd like to not see racism in my presentation, I think it has to be there, because it's in the back of your mind and it has to be refreshed at all times.

Mr. John Duncan: My concern is it becomes a vehicle by which people are not encouraged to debate, criticize, or otherwise discuss issues that clearly need to be debated and discussed and clarified. That's why I'm concerned when I see that right up front in a presentation. I don't want to dwell on that, because there are other very good parts of the document that I would like to talk about.

On page 3 of the document you talk about the collective nature of the treaty right and your early recognition of that. My question, which I've been asking fairly consistently, is who can make the decision that's binding on your community? I guess you can really only talk about your community.

Chief Charlie Sark: In the case of the Marshall decision, you're talking about the collective right, and in the Marshall decision, it does say it is a collective right.

Mr. John Duncan: Yes, but who can make that decision—

Chief Charlie Sark: So if it's a collective right, then it would be made by our community. That's why we set out, at the beginning of this, when the Marshall decision came down, to put some meaningful dialogue into our community so that we would be able to put guidelines in place for specifics like this. In fact, under the AFS we have always had rules and regulations in place for that fishery under the Sparrow case.

• 1435

Mr. John Duncan: Are you really saying that the chief and council can make that decision, and it would be binding on the community?

Chief Charlie Sark: It's the chief and council collectively with the community. I can't arbitrarily go out and say that the 10 gentlemen at this table are going to go fishing tomorrow. The community is going to decide that.

Mr. John Duncan: In your document you talk about the fall fishery in Malpeque Bay, and you make the statement that there have been biological studies that indicate that will have no impact. Number one, are those studies available? Number two, isn't it very premature to be able to determine whether or not that fishery has had any downstream impact?

Chief Charlie Sark: We just made comments about the fishery that's happening. If you're comparing it with the overall catch of lobsters in the province, you do the math, and if there's any, it's very small. So its impact is minimal and has been for years.

Mr. John Duncan: We asked this morning about where the actual figure came from, the 50,000 pounds of lobster that were taken this fall from the bay. That number apparently originated with you.

Chief Charlie Sark: It originated with our monitor. They took the poundages from the persons buying the fish.

Mr. John Duncan: Is there a paper trail that's traceable?

Chief Charlie Sark: Yes.

Mr. John Duncan: Who possesses the paper trail?

Chief Charlie Sark: We possess it.

Mr. John Duncan: Is that provided also to DFO?

Chief Charlie Sark: Not necessarily, because DFO made their own assessment that was not based on poundage but on other ways of doing it.

The Chair: This will be your last question, John.

Mr. John Duncan: I think we're going to have an inevitable challenging of the numbers and a questioning of credibility. One way out of that is to have third-party or arm's length monitoring. Would you be open to that kind of arrangement?

Chief Charlie Sark: You're bringing back racism, and you don't trust us any more.

Mr. John Duncan: I don't think that's racism. I think that when the public good and a major resource is involved, that's something any community would think it would be prudent to do.

Chief Charlie Sark: We have to accept the figures and regulations the government gives out on paper, so why can't DFO and the politicians accept the numbers on paper? We're not trying to hide anything here. We're up front. If somebody wants to inflate the figures above ours, they can go right ahead. I have no objection to that. But it goes back to my first statement on my first page.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I too would like to thank the witnesses for appearing before us this afternoon. I have carefully noted all the points that you raised in your document which, I might say in passing, is first-rate. I also see that your group has acted calmly, at least, as far as I can see, and that you have urged your members to be mindful of the fact that Aboriginal rights can also be subject to regulation. I think that it's to your credit that you are beginning to look at both sides and to say that you are winning something, but that there is a price to pay for it.

I'd also like to give you the opportunity to explain your thoughts regarding the questions that you raise starting on page 7 of your brief. These are very good questions and I have the impression that this is your agenda for the coming weeks and months in dealing with the Aboriginal nation, to which you must respond.

• 1440

You are asking that the federal government help you carry out your plan. I must tell you that we too are interested in questions such as these and that we too will have to be in a position to formulate recommendations to the federal government.

You asked about the level of access to the fisheries that would be required to ensure a moderate livelihood. That's the heart of the matter for us. You also asked how traditional values could be respected in exercising the treaty right. The answers to these questions are also of interest to us, because they may have an effect on the way you use the resources that will be allocated to you. We should perhaps find out the answers before determining the level of necessary resources.

I'd like to ask one last question, if I may. What are the valid considerations regarding conservation for each of the species? I can share your scepticism on this, if that is in fact the question that you raised. I also wonder whether the biologist working at the Department of Fisheries and Oceans still has all the data involved at hand. Nonetheless, the relationship of trust must to some extent be accepted.

If the witness would be so kind as to comment on these three questions, it would help us in our deliberations.

[English]

Chief Charlie Sark: First of all, thank you for the comments on our presentation.

On the first question of why we sat down as a collective community and put some regulations in place, that's part of the aboriginals' move toward self-government. That's an initiative that would lead to self-government, which the Government of Canada is now asking us to do.

Second, about the order and getting interim guidelines in place, we met with Minister Dhaliwal, and in his presentation he asked us if we could put interim regulations in place by October 31. The Atlantic Policy Congress of First Nations Chiefs put together interim guidelines by October 31 and also a policy. These were sent to Mr. Dhaliwal.

As far as the traditional values are concerned, yes, there are going to be people who want to be able to continue their traditional values. They're going to want to continue to traditionally hunt, fish, and trap, and these people have that right. But they would also have that right under the collective, the same as it was back when we had the seven districts, and the district could be controlled. So for traditional people we'd have to make room for that outside of the commercial part. Those traditional values are very important to those people, as are the traditional values of other nationalities.

With regard to a moderate livelihood and who is going to define that, I'm not even going to attempt to tell you how to define moderate livelihood. If I were doing it, I would take the gross pay of everybody around this table and divide it by the number of people here, and I would consider whether or not that's a moderate livelihood. If I added $100,000 to it, then it would be my prerogative to say that's what it is. But would you agree? I don't think so.

With regard to concerns for conservation, yes, we have concerns for conservation. We're looking far beyond just fisheries. In our own community we're looking at ecotourism and an ecosystem that's surrounding our bay. We have millions and millions of dollars around our community and we're working towards putting that value of fishery in some perspective so that we do not impact on it, because if we impact on that, then it's going to impact on our livelihood too. So we're very concerned about the conservation of it.

• 1445

As for the biologists, you take them for what they're worth. There are good ones and there are bad ones.

The Chair: Thank you, Mr. Sark.

Mr. McGuire.

Mr. Joe McGuire: Welcome, Charlie and Tracy.

I wonder which way is the best way. What do you think the way to go is to achieve where we all want to go?

We have quite a few people involved now, in addition to the minister and the committee, and mediators and non-aboriginal fishermen and the aboriginal fishermen. They're all together now, supposedly going with the clarification in one direction. And it has to be done by April 15. There must be at least an interim agreement by April 15.

I think there was evidenced this morning, with the testimony given, that everybody seems to have the will to try to get there in the most beneficial way possible among all the partners. How can you cut through all this mounting red tape, which seems to be getting more complicated rather than simpler, and there are more groups involved, and get to a solution whereby basically the people who rely on the fishery for their direct livelihood can get some satisfaction out of this process?

Chief Charlie Sark: The first thing we have to do is, if we're going to be working on an equal playing field.... I guess Mr. MacKenzie has a secretariat all set up in Ottawa, and from what I understand, money is no obstacle according to their set-up. If you're going to deal with Atlantic Policy Congress of First Nations Chiefs in the Maritimes, I don't think you'd better start nickel-and-diming them either, because they're looking at access.

I've heard a few people around this table talking about lobster. Lobster is the thing on Prince Edward Island, but I think what we have to do is look at the overall fishery. We do have a specific access to the fishery. Everybody has that access. We don't have that access, but now, under treaty, we don't need a licence to access the fishery. But fishermen do have a licence as a privilege to access the fishery. So we have to look at the overall code of access, or whatever access is out there, and then it's going to have to be negotiated as to how we're going to do it.

Some people are saying that the government should come with a whole pot full of money and buy out all the fishing. I don't think the government is in a position to do that, but I think really to work this all out and get through the logistics of the whole thing, you're going to have to compare your organizations to what the maritime chiefs are trying to do. We're consolidating our people into mediators. We have people who are heading that. We have an executive for the policy congress of chiefs who deals with the mediators, and then the communities themselves are dealing with the local fisheries that are in the area.

We're looking for access. And as somebody said, one in, one out. I don't know how you're going to do it, but the thing is you should always remember that the aboriginal people of the Maritimes, the Mi'kmaq, the Passamaquoddy and the Maliseet people, have the right to fish. And what we're doing is looking for the access, and the access is the thing that we have to make available. What is it going to be?

Just in terms of Prince Edward Island, somebody mentioned we can't accept 300 or 400 fishers, and I made the comment, how many people do they think live in Lennox Island? Not everybody is going to fish.

Mr. Joe McGuire: You had a good initial meeting, we're told by Mr. Avery from Alberton, with the P.E.I. Fishermen's Association. Is that the best way to go about this, that you sit down with the people who are in the fishery and work something out at that level rather than—

• 1450

Chief Charlie Sark: That is the best way to do it, because I wouldn't want to go out on the water with a bone of contention with any fishers whatsoever, because all that leads to is animosity on the water, and people will start having problems with fighting over territory, ground and so forth. I don't think you can do that. It has to be a cooperative effort on the part of the fishermen and the aboriginal people, and the access has to be done that way.

Mr. Joe McGuire: So you're looking at not just the bay itself, you're looking at outside the bay.

Chief Charlie Sark: Sure, we're not going to fish in the bay. Why would we fish in the bay?

Mr. Joe McGuire: So if we're looking at retiring licences, you would in that case have to go outside the two harbours that are in the bay, to Alberton or French River or whatever. So you're looking at a bigger scope than just the bay itself.

Chief Charlie Sark: You have the crab fishery also, and the gulf crab fishery is going to have to accept it. We met with the crab fishermen, and one of their gentlemen kept saying “If you're going to impact on my livelihood, you're not going to be allowed into the fishery”, or “You're not going to get into the fishery”. We're not impacting on his livelihood. We'd probably look at the overall midshore fishery and see what there is available out there. Those are the next people we have to talk to.

So if we can find the access and it's presented to us, I think we won't put any negative impact on the fishery.

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: Thank you, Mr. Chairman.

Thank you, Mr. Sark and Madam Cutcliffe, for your presentation. I always find fascinating the amount of work you've done, and I know Mr. McGuire, your MP, has spoken about your efforts to us in Ottawa at great length. So I want to appreciate your efforts to this point.

The question I have for you, sir, I consider a very serious question. I've asked many, many people in Ottawa, including some pretty sophisticated lawyers, and they won't give me a yes or no answer. But Mr. Christmas gave me an answer to it when I asked him for his opinion. He's an aboriginal person, a first nations person, and a very respected and fine lawyer. I asked him whether in his opinion the Marshall decision applies to non-status aboriginals, And he said no, it does not.

I'm going to ask you the same question: in your opinion, sir, as one of the leaders of the aboriginal people in the Maritimes region, a very respected leader, do you, or does your community, believe that the Marshall decision applies to the non-status aboriginals off reserve?

Chief Charlie Sark: My personal view from the Supreme Court decision is that, yes, it does only include status Indians in the Mi'kmaq Nation, the Passamaquoddy Nation and the Maliseet Nation, and until it's clarified.... But I don't know how it's going to be clarified.

Mr. Peter Stoffer: Thank you.

We already heard from the industry alliance. I asked them if there were any aboriginal groups in their alliance, and they indicated there weren't. When you say “In order for the consultation process to be effective, we must determine how we wish to regulate the treaty fishery internally”, that means obviously with the other districts that you're referring to, of how these Mi'kmaq, Maliseet, and Passamaquoddy aboriginal leaders get together in order to come up with some sort of consultative process, and then come up with some rules and regulations among yourselves to present obviously to the non-aboriginal community and to the government. Would that be correct?

Chief Charlie Sark: That's right.

Mr. Peter Stoffer: I foresee a bit of a problem in that regard, because what I'm trying to do.... I see the process that Mr. Thériault and Mr. MacKenzie are doing. Mr. MacKenzie is down here to speaking to aboriginal groups. Mr. Thériault is speaking to non-aboriginal groups in the commercial fishing sector. They're not speaking at the same time, together. I perceive someone from the alliance and someone like you sitting together with both these gentlemen and presenting your concerns. But that's not happening.

Chief Charlie Sark: No.

Mr. Peter Stoffer: It's done separately. I then assume—I may be wrong—these men are going to go back to Ottawa, discuss what they've heard, and then come out with some recommendations. Do you believe that to be the process?

Chief Charlie Sark: I believe that's the process of the federal government with the people they've chosen, but I have concerns about Mr. Thériault simply because he's only a gulf fisherman. I have concerns about Mr. MacKenzie because of what I read about the Inuit in Labrador. And I still have concerns with that mediation simply because it doesn't include the southern Nova Scotia part. In southwest Nova the native people are talking about the fishery, but nobody's down there with them.

Is MacKenzie going down there? He went down there to talk to the non-native fishermen, but he didn't talk to the native fishermen.

• 1455

Mr. Peter Stoffer: I have a last question for you, sir, and I ask this question with all due respect.

After the decision was made regarding the food fishery and the ceremonial fishery.... There is evidence out there that some of that fishery...and it was lobsters in this particular case. For example, one estimate was that 50,000 pounds was taken. I'm not concerned over the amount that was taken, but some of that fishery is actually a commercial fishery. The people who caught it are not using it for food or ceremonial purposes; they're actually using it to sell commercially, either to a buyer or off the back of a truck or something like that.

I'm sure you may be aware that this does happen. Do you condone that? Or do you feel it is the right of those individuals to turn what was noted as a food and ceremonial fishery into a small limited...or the perception of a commercial fishery?

Chief Charlie Sark: That was forced by the simple fact that the Government of Canada didn't recognize the treaty rights, and they were exercising their treaty rights, in effect. Now it has to be rights. The Supreme Court came down with the decision and said they do have a treaty right to do that. They do have a right for food and ceremonial purposes, and they can sell it. I can't argue with the Supreme Court, and neither can you.

Mr. Peter Stoffer: Thank you.

The Chair: Go ahead, last question.

Mr. Sarkis Assadourian: Are you a fisherman? Do you fish for a living?

Chief Charlie Sark: I did a lot of things for a living. I spent a lot of time on the water.

Mr. Sarkis Assadourian: Do you fish now?

Chief Charlie Sark: No, I don't.

Mr. Sarkis Assadourian: So what you're telling us is from your experience in the past.

Chief Charlie Sark: From my experience of the past in the fishery.

Mr. Sarkis Assadourian: Yes.

Chief Charlie Sark: I can take you back to when I was nine years old and I used to fish with a commercial fisherman from our community. He used to fish lobsters and sell them for $5 a wooden crate.

Mr. Sarkis Assadourian: And what you're telling us is from people in the band, or in your community, telling you the difficulties they see in the fisheries. Am I right? It's not your personal experience.

Chief Charlie Sark: That's not from my personal experience, because a number of them have experiences in the fishery also.

Mr. Sarkis Assadourian: And they all share the same views?

Chief Charlie Sark: Pretty much. As I mention in here, it has to be a collective decision, and our community has to make sure we're making the right decision so that everybody is going to be onside.

Mr. Sarkis Assadourian: How many people do you have in your own community?

Chief Charlie Sark: We have 350 people living in our community.

Mr. Sarkis Assadourian: Living, but how many fish from that?

Chief Charlie Sark: How many fish? There were about nine who were exercising the fishery right under the old AFS, but they weren't fishing full complements. This is another sore point in our community, the fact that the Department of Fisheries and Oceans hasn't lived up to their negotiations in getting more licences for our community through the AFS agreement. If they had, the impact on the fishery wouldn't be what it is today.

Mr. Sarkis Assadourian: So there are nine people fishing in your community out of 350. Is that adequate to feed the community, or to bring in enough?

Chief Charlie Sark: No.

Mr. Sarkis Assadourian: Do you think it should be increased?

Chief Charlie Sark: Some 80% of our community is on welfare, sir.

The Chair: Thank you, Sarkis.

I have a question, before I go to John. It's a question I raised this morning,

Charlie, on this business of moderate livelihood, the Supreme Court said that catch limits could be reasonably expected to produce a moderate livelihood for individual Mi'kmaq families at present day standards. That's good if you're dealing with something constant, but farming and fishing are similar. This year you may have a moderate livelihood quite easily because prices are up. Next year or the year after that, prices fall, and it wouldn't matter how much lobster you caught; they wouldn't cover your expenses.

• 1500

How do you deal with that kind of equation? If we establish something today that is at a moderate livelihood, what happens when you run into a time when there's either a lack of fish or poor prices, and it's hard to even meet your expenses? Where does that leave us, from your point of view?

Chief Charlie Sark: What I hear you saying is that you want to put a definition of “moderate livelihood” in stone, and that it's going to stay there.

The Chair: No, that's not what I'm saying, not necessarily. As you said earlier, I don't think any of us really knows exactly what “moderate livelihood” means. But if you set a level in an industry like the fishery industry, in which you have good years and bad years, what happens when you have a bad year? Because the Supreme Court said you should reasonably be expected to produce a moderate livelihood, does that mean you have to increase the allocation to the Mi'kmaq community if it's a bad year? Where does that leave you?

Chief Charlie Sark: I don't really think that's part of the quotient of “moderate livelihood”. If the access is there and the access is not adequate, we would probably have to revert to other fisheries, like other people.

Now, all fishers don't fish one fishery. We have people fishing lobsters, oysters and prawns. We have fishers with leases. We have lobster fishers who are fishing crab. We have them fishing smelts, we have them fishing silversides and fishing eels. Every one of the fishers fishing there is mostly a multi-species fisher. As for some of the oyster fishers, all they do is oyster fishing. I assume they make a moderate livelihood or they wouldn't be doing it.

So in answer to your question, in good times and bad, we're all going to have to live with it. The moderate livelihood is going to increase and decrease as the stocks increase and decrease.

The Chair: Thank you, Charlie.

Tracy.

Ms. Tracy Cutcliffe (Band Government Adviser, Lennox Island First Nation): If I could just add something, one of the things Chief Sark addressed in his presentation was the fact that we do need a process to help deal with the evolving access requirements in the community. That's something that is at a regional level right now. The chiefs and the technicians who are involved are now trying to look at the issue that you just raised.

Everybody recognizes that the Supreme Court of Canada affirmed the treaty right. When the court boiled it down, it was a treaty right for necessaries, which they defined in a modern context as a moderate livelihood. What's necessary to provide the access to achieve a moderate livelihood may change over the years. That has been identified within the aboriginal community regionally, and we're looking now to try to come up with some sort of process to deal with those evolving needs.

The Chair: Thank you.

Mr. Cummins.

Mr. John Cummins: Chief Sark, in your presentation today, you talk about having been denied a treaty right for 240 years. My understanding is that there were really no restrictions prior to 1968. If you wanted to go lobster fishing, you could buy a licence for 25¢ and go. What I'd like to know is whether there were any restrictions that prevented your community from participating in that lobster fishery prior to 1968.

Chief Charlie Sark: No, we had 30 people from the community fishing lobster. I just mentioned one point of contention. When I was 9 years old, we used to fish in Malpeque Bay. The man who was fishing from our community was fishing 300 traps in Malpeque Bay. We used to go at four o'clock in the morning to fish those lobsters, and then go to school at 8.30. He used to take the lobsters to the port at Port Hill, where there was a factory, and he'd sell them for $5 per wooden crate of lobsters. He used to tell us to throw the small lobsters overboard because the big ones filled the crate faster.

So if you want my view of fishing in that time, I can give it to you.

Mr. John Cummins: What happened to those 30 licences?

Chief Charlie Sark: There was a reduction in the fishery at that time. It's only been about 20-some years now since the lobsters came back to Malpeque Bay in abundance, to the point where they're sustaining up to 80 boats at a time in the last two weeks of the fishery in June. There were no fish. Many of the older people tell us that with the price of lobster at that time, it was a poor man's fish. They couldn't make a moderate living from it so they turned to oyster fishing, clam fishing, and so forth.

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Mr. John Cummins: DFO fisheries officers can't have an economic interest in the fishery. For example, they can't hold a fishing licence. Is that the case with the native guardians?

Chief Charlie Sark: Our native guardians have never held a licence while they were fishing. Either they worked as native guardians or they left their job and went fishing, and we then got somebody else. That was up to them.

Mr. John Cummins: In response to one of the questions, you mentioned as well that the percentage of the catch by the aboriginals in P.E.I. would be very small. The court noted at paragraph 42 that on a percentage basis a catch may be small; however, “a fishery that is `minuscule' on a provincial or regional basis could nevertheless raise conservation issues on a local level if it were concentrated in vulnerable fishing grounds”.

I take it that you would agree with that observation of the court.

Chief Charlie Sark: Yes, I'd have to add to this conservation, but I guess you also have to be concerned with the hierarchy of conservation. If it's shut down for conservation, when it's opened again after that, it's conservation, the Mi'kmaq people from P.E.I., and then the other fishers. That's the hierarchy of it.

The Chair: Last point, John.

Mr. John Cummins: That's fine.

The Chair: Thank you.

I just want to come back to one thing that was raised earlier by Mr. Duncan, Mr. Sark, and that was on the numbers. As an MP in the area—and I'm sure Mr. McGuire must get this too—you get your numbers, you get numbers that are rumoured in the community, and you get DFO numbers. Yes, part of it is a lack of trust maybe, but not just of your numbers. There's also a lot of lack of trust in terms of DFO's numbers sometimes. How do we get to a situation in which we have basically a common set of numbers that people can be reasonably assured is reasonably correct?

Chief Charlie Sark: On what basis are you mentioning numbers?

The Chair: Well, I'm talking about the point that was raised earlier about the 50,000 pounds—-I believe that was it, right, John?—of lobster caught under the treaty rights following the Marshall decision. Those numbers come from the process that you set up. I don't know whether or not DFO agrees with those numbers. How do we get the double-check by a third party that has no connection to anyone, basically? I'm talking about the future.

Chief Charlie Sark: In the future, if we have access to commercial and we're selling commercial, then doesn't DFO have a system in place? I don't know if they do, and I don't know whether I want to go there or not. All I'm going to do is dig up things that come with the oyster fishery, and I don't want to do that with DFO.

Whose figures do you want to believe? I don't know. Look at the plight of the oyster fisheries in P.E.I., in Joe's district. It's a problem, but if it's our figures, your figures or DFO's figures, as I said, I think we have to sit down to negotiate this and be justified in doing this for one another, rather than nitpicking and pulling figures out of the air. You can't weigh lobsters sitting in a DFO truck on land. You have to go to the wharf to see them when they're weighed in, and that's what happened.

The Chair: Thank you very much, Mr. Sark, Ms. Cutcliffe.

The next witnesses are from Prince Edward Island Snow Crab Fishermen Inc.: Mr. Cameron, Mr. Hutt, and Mr. Aylward.

• 1510

Go ahead, Doug.

Mr. Doug Cameron (Executive Director, Prince Edward Island Snow Crab Fishermen Inc.): Thank you, Mr. Chairman and members of the committee. We thank you for the opportunity to appear here today.

We represent P.E.I. Snow Crab Fishermen Inc., which is the entity of the 30 licensed snow crab fishermen of P.E.I. With me are the president, Carter Hutt, and the secretary-treasurer, Joey Aylward. Both are snow crab fishermen.

The written submission I have this morning takes about ten minutes. What I'd like to do, with your permission, is read some paragraphs and then speak to some of it, and make my way through that way.

The experience of the past two months has been frustrating and at times exasperating. The decision was clear. Donald Marshall, Jr. was acquitted on all charges. We learned that and we accepted that. Unfortunately the court's first explanation document left us with more questions than answers. Licensed fishers were asked to be patient, and we were. Fortunately clarification of some of the questions and concerns of industry was provided this past Wednesday in the release of the new court documents.

I would like to speak to the management structure that is currently in place for snow crab fishers—a structure and a process that we support and firmly believe is a sound one, and we fervently hope it will continue. In 1997, three years ago, the minister of DFO and the five snow crab associations that fish that area signed a five-year agreement. We now have three years behind us and two years in front of us. It's important to speak to this agreement for the reason that over the course of this week, you will receive many suggestions with respect to proposed or suggested future management models and management structures.

This past February, the former Minister of Fisheries and Oceans, the Honourable David Anderson, had a meeting in his office. He said he viewed this agreement as a model for the future of fisheries management. Mr. Anderson liked it. We like it. We are fully committed to the agreement, and we trust the federal government will honour the fact that this agreement has two more years remaining.

This agreement is the reference document that gives focus and direction to DFO and to industry in the discussions leading up to the preparation of the annual work plan for each new season of the snow crab fisheries. Included in the agreement is provision at present for access by aboriginal and non-traditional crab fishers to share in the stock when the combination of stock and prices reaches a certain level.

The agreement also sets out a cost structure where we, the fishermen, have to pay so much money for fisheries management, conservation science, etc. In 1998-99 the minister's office paid $1.5 million and the crab associations paid $1.8 million.

I can say with absolute confidence that no other species has the science—and when I say science, I'm really speaking of measures that go into conservation—and the fishers' commitment to science that the snow crab fisheries have. I can say each licensed fisher in the crab industry contributes more to science and conservation and to fisheries management than do fishers in any other section. That's evidenced in a pamphlet called “User Fees on the Commercial Harvesting Sector”, where they compare one with the other.

The guts of my presentation are the management plan contained on page 4. The management structure and process we have used successfully these past years we would recommend as our suggestion, in response to your request, for the future management of the fishery. I have set out a calendar of events that identifies the process we have used to develop the annual work plan each new snow crab season.

• 1515

Immediately after the season is over, in July we do a post-season review. I've referred to that as a post-mortem. That's followed by a series of operational meetings—as many as are required. We also have internal meetings: DFO staff with DFO staff, industry with industry in their fisheries. Then we have joint meetings of working groups: the paid staff of the associations with the paid staff of DFO. Then we move up one more level and have co-management committee meetings, where things are distilled a little bit better and we can deal with them.

In the month of November—in fact it's next week—DFO will go on tour to each of the associations and explain to them the results of the trial survey they made in the fall of the year. In December we have a study team meet with industry to give us a preliminary report on price. That is followed in February by a final report on the reference price.

Then we have what I call an advisory committee meeting, which is open to all interested persons. I'll speak to that in a minute. We have set March as the deadline date for the announcement of the plan and April as the proposed date for opening of the fishery.

In two of the items above, there is an accommodation for all interested persons. We are interested in transparency. The transparency will show itself in both those phases.

It is the view of the P.E.I. snow crab fishers that the current management approach outlined above has been working successfully, and it may be appropriate for other fisheries. The calendar of events provides evidence of a heartening dialogue and open exchange that takes place in formulating recommendations for the annual work plan that goes up to the minister.

I'll speak to one of the items listed for January; it's referred to as the open peer review. This is where science meets with industry. It provides licensed fishermen, aboriginal and non-traditional fishers, processors, and provincial governments the opportunity to participate in the science disclosures, discussions, and recommendations with respect to determination of the total allowable catch for the coming season. It's a two-day event open to all.

The second event that's important is the open advisory committee meeting held in February, and it rotates from province to province. It's usually attended by upwards of 100 to 150 persons and includes, again, DFO personnel, association representatives, licensed fishers, aboriginal and non-traditional fishers, processors, provincial governments, representatives of plant workers, and crew members. This is the final act prior to recommendations going forward to the minister.

One of the questions listed in the hearing notice was, what process could be put in place for implementing treaty rights? We are not about to suggest anything very different from the structure that has been established. We would, however, suggest that the terms of reference of the chief federal representative and the assistant federal representative be revised in accordance with the following.

We would recommend that on major species, the CFR and the AFR work together as a team. It is our view that the terms of reference should now be modified to reflect the recent court explanation document. We would like to see more equality built into the terms.

The team to identify the bands and licensed fisher organizations should be invited to the table—bands in accordance with the recent explanation. We'd like to see letters go out requesting position papers from each group. We envisage the team meeting first with the native group to learn of their expectations, followed by a team then meeting with the representatives of the five crab associations. We would encourage the minister to agree to providing observer status to the other group at each of the above meetings. Further, we would recommend that DFO staff attend as resource persons to the CFR, the AFR, and other participants.

My next topic is the implications of the Supreme Court decision.

Who are the beneficiaries of the treaty? The quick answer is that it would appear to be up to the courts to decide. However, it is our opinion that sooner or later, non-status aboriginals will also qualify. While this may not yet appear to be a factor, it must be considered in the discussions and negotiations that take place. We want no more surprises.

What is the geographical extent of treaty rights and what activities are encompassed? It is our reading of the recent explanation document—and we agree with the clarification—that the right to fish under the treaty of 1760 is geographically limited. Similarly, it is our reading—and once again we agree with the clarification—that the geographic limit is the boundaries of the province, which includes natural bays, inlets, estuaries, etc., but excludes the open sea.

• 1520

Gentlemen, I would like to make one point to clarify the statement Mr. Sark made. He said that when he met with us last week, we made the statement that we wouldn't allow it, and that is an absolute untruth. We never said any such thing. The three of us were present.

I've heard and read the word “assimilate” aboriginals into the fisheries. I've heard and read the word “accommodate”. I wish people would start to use the word “integrate”, and hopefully something like that would pull us together.

Let me tell you this. Some of our partners in the five-year agreement also proudly carry cards of their aboriginal heritage. I was shown cards by two of my New Brunswick friends, licensed crabbers, and we have been told that in the two northern New Brunswick associations, which have about 81 members, as many as 40 to 50 already carry cards. So there is integration into the fishery at the present time.

P.E.I. snow crab fishers believe that entry should only be by way of a buyout of existing licences—one in, one out.

Contrary to the opinion of some, entry into the fishery has not been denied, and I think we gave some input on that above. Yes, there is a requirement under present regulations to have a two-year experience and to have commercial licences. Those rules were probably drafted so that there could be safety on the sea and people would know how to conserve the stocks. To take somebody and just put them in a snow crab boat with the dangerous seas on some days would, I think, be wrong.

With regard to the entry, we are of the opinion that all participants in the snow crab fishery or any species must be licensed and registered with DFO. Further, it goes without saying that we are of the firm opinion that DFO should continue to be solely responsible for issuing and registering all fishers.

Gentlemen, we are a member of the Atlantic Fishing Industry Alliance, and on the issue of moderate livelihood, I asked James MacKenzie this question in Dartmouth on November 9, 1999. His answer was along the lines of saying, I don't know that a number can actually be determined. We have to look at other alternative and creative ways to apply the ruling of the court.

On the issue of tax dollars, our concern is simple. We are of the opinion that no individual or group of individuals or pound or processing plants should have cost advantage and/or market advantage over any other group.

With regard to regulation of the fishery, I've already said it. It is our opinion that the Minister of Fisheries and Oceans should have complete authority. There should be only one regulatory power, the Minister of Fisheries and Oceans, and there should exist only one set of regulations to cover all crab fishers.

If I have exceeded my time, I apologize. Thank you very much.

The Chair: Thank you very much, Mr. Cameron.

Mr. Cummins.

Mr. John Cummins: Thank you, Mr. Chairman.

Mr. Cameron, I just note that on the first page of your presentation you say you joined the Atlantic Fishing Industry Alliance to show support. Then you go on to say that time and costs are not likely to be recovered. It seems to me that the court decision of November 17 came down somewhat in response to some of the activities of the alliance, and you might well have received payment in full on whatever investment you made there.

But that's not the point I want to get into right now. What I want to talk about is that at the top of page 7 you say:

Gentlemen, we want to make it absolutely clear that we accept the decision of the Court and have no objections to aboriginals being integrated into the snow crab fishery....

I think that's a very reasonable statement and a reasonable response to the court decision. The question is, do you think the aboriginals should be entering the snow crab fishery as part of a treaty right or as part of government policy?

Just to further complicate the issue or muddy the waters, let me explain to you where I'm coming from on that.

If you look at paragraph 14 of the Marshall decision, the Native Council of Nova Scotia notes that in fact it attempts to justify Marshall's actions in participating in the eel fishery by saying: “They are a traditional harvest species, being harvested by Mr. Marshall in the traditional method and in relatively small quantities.” Well, the key is that they are saying it's a traditional harvest species. They're using that as justification for his participation or for his fishing that day.

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Then you go on to say in your brief that there are geographical limitations to the right; it should be participated in within the band's traditional areas.

With regard to the first point I made about participating in a traditional fishery, the court also notes at paragraph 20 the treaty rights to fish and wildlife, or to the types of things traditionally gathered by Mi'kmaq in the 1760 aboriginal lifestyle. So the reference, by both natives making a presentation to the court and the court, is to a traditional lifestyle and a confined geographical area.

Do snow crabs meet any type of test, if you will, for a traditional harvest? Was it or was it not a harvest that, in your mind, traditionally occurred with natives in the 1760s? I think there's an issue here, as I say, of whether natives should be entering into the snow crab fishery as a treaty right or as a right of government policy. There's a huge distinction in the way people may be treated, if that's the case.

Am I clear or did I...?

Mr. Doug Cameron: You covered a lot of ground—

Mr. John Cummins: I did, yes.

Mr. Doug Cameron: —and I'm not so sure I can answer all of that.

Mr. John Cummins: I could reword it, if you'd like.

Mr. Doug Cameron: No, let me attempt it.

Mr. John Cummins: All right.

Mr. Doug Cameron: On the business of distinguishing between aboriginals and non-aboriginals, I have lots of friends who have blond hair and lots of friends who have black hair. I have friends who tan easily and friends who don't tan. I hope we don't get down to the point where, really—and quite frankly, that's why I like to use the word “integrate”—we're saying “we” and “they”. That disturbs me as a Canadian, not just as someone working with the crab association.

With regard to entry as a treaty right or as a government policy, my answer is that we have friends in New Brunswick now who carry cards in their pocket. As I said, I've seen them. I think entry into the snow crab fishery or any other fishery should be the same level for everybody, quite frankly.

On the business of whether aboriginals fished crab in the 1760s, you'd have to show me the literature on whether they did. I don't know that there's any history of that. It was an open-seas type of thing, so I doubt they did, really, but it would be up to the historians to go back and search the records and find that out.

I hope that helps.

Mr. John Cummins: I just want to say that the points you make and the direction you give the minister in your brief are very clear and I think very fair. I want to compliment you on it.

I think maybe I'll pass at this point, Mr. Chairman.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I have listened to you very carefully. I would like to congratulate and thank the witnesses who are here today.

There are two minor points bothering me for now. My first question has to do with your co-management agreement for a five-year period. We read in your documents that there are two years remaining. In your co-management framework, there is a formula for dividing up the resource that applies to both your players inside and the players outside, that is, Aboriginal fishers and traditional fishers. Could you give us an idea of the total allowable catch this year in your area and in the Gulf area? What kind of volumes are involved and what portion was set aside for Aboriginal fishers this year?

• 1530

[English]

Mr. Doug Cameron: Crab is a cyclical species. It's up and down. Picture a piece of pie this big. In that first year, 1997, the pie got to be this big. The measurement, according to the formula of rights, was that crab fishers, traditional fishers, were entitled to a pie that size. When it got that big, then sharing was provided.

For the first 2,000 tonnes, after it got that big, that would have been shared; 2,000 tonnes went directly to the aboriginals and to non-traditional crab fishermen. After it got partly that big, then there was sharing back among the traditional fishers.

So when the pie was that big, they got the full piece of pie, because when it grows, then first entitlement goes to aboriginals and non-traditionals. If the pie gets that big, then there's further cost sharing.

In the third year of the plan, the stock declined and the pie wasn't as big as it was originally thought it would be. It got smaller. That was shared only among the traditional fishers.

The expectation is that this year it will stay at about the same size as it was last year. The following year, it's supposed to grow.

I made reference to the science and the biology that happens out at sea. At the start of the year, they do a trial survey, which we help to pay for. The results of that trial survey tell them what the total biomass is in the gulf. They also do age classification so that they can tell what is the harvestable level that can be pulled out. They also know what the recruitment is, the new young babies that are coming along. Never will the harvest level ever exceed that new young recruitment.

That's how the total allowable catch is determined.

[Translation]

The Chair: Mr. Bernier.

Mr. Yvan Bernier: I think you're saying that you have no clear idea of the volume or the percentage of the volume allocated to Aboriginal fishers, because your distribution formula takes into account biomass fluctuations, which reflect price fluctuations.

There's another thing that bothers me. On page 6 of your brief, you talk about a fishing right that could be limited for Aboriginal fishers, you establish a link with the Treaty, which was based on a territory, and you affirm that the coastal fishery could be restricted for Aboriginal fishers. I have some difficulties with this and I'd like to hear your explanations.

I'd like to slip in one last question, because the chairman sometimes doesn't let me have the floor a second time. In your opinion, new players, in this case Aboriginal fishers, should enter the fishery by means of the licence buy-back program. Could you just give us an idea of how much a crab-fishing licence would currently be worth, if it had to be sold?

[English]

Mr. Doug Cameron: There are two questions. With regard to the one on geographic limitations, that's not my statement, sir. That was from the court explanation that came down.

I don't know what page you're—

The Chair: Just as a point of clarification, that was November 17, Yvan.

Mr. Cameron.

Mr. Doug Cameron: What was the second question?

The Chair: The second question was on the price of the licence.

Mr. Doug Cameron: There are two different classifications of people who fish. Midshore fishermen fish with 150 traps and have quotas that are four times as big as our quotas. We fish with 50 traps and one-fifth the quota.

On the price of a licence, let me say that over the last three months it's fluctuated greatly. Three months ago it would be close to $400,000 for an inshore licence, and probably more in the order of $750,000 or $800,000 for a midshore.

Actually, my colleague says it's $1.5 million for a midshore licence.

Two months ago, after September 17, we didn't know what the price was. I don't know what the price is today. If we knew everything that was going to happen, I would dictate a price—

The Chair: It's like the stock market, Yvan. It's up and it's down.

Mr. McGuire.

Mr. Joe McGuire: Thank you, Mr. Chairman.

I'd like to go back to what my colleagues opposite were asking about, where you state, on page 7, that you “have no objections to aboriginals being integrated into the snow crab fishery”.

• 1535

How does that jive with the treaty right to fish, and just how can that integration take place? Do you have any kind of plan, just as an opening statement, for how you would satisfy the treaty rights in the integration you were talking about?

Mr. Doug Cameron: My answer would be that many people in the crab fishery now carry cards. It seems to me that answers the question, Joe.

Mr. Joe McGuire: Are you saying you're integrated?

Mr. Doug Cameron: There's never been a refusal and we're not about to start refusing. The ones in it now have bought in. One of my fears is this: they're holding a licence now, and if they're allowed in without a licence, they will be able to sell that licence to somebody and go fishing for nothing. So it doesn't make any sense. That would have to be cleared up. I'd be afraid to say anything about this because of my friends in New Brunswick.

On integration, five licences in P.E.I. traded hands last year. Those licences were available to anybody with a commercial licence and the two years' experience I went through.

Mr. Joe McGuire: I guess compared to the lobster industry, your science is pretty sophisticated regarding knowing what the biomass is, where it is, and what kind of fishing can be sustained there. Is there anything in your management plan that would increase the number of licences if the biomass grew, or is the biomass such now that you're limited to the present number of fishermen?

Mr. Doug Cameron: I respect DFO's instituting limits on the number of crab licences. That number is obviously determined by conservation measures. That gives me the opportunity to say, Mr. McGuire, that on the conservation side of it, we pay a 30% observer coverage on every third vessel that goes out. You have to hail in and say “We're going fishing”, and an observer is put on 30% of the vessels. So they go out, and when they come back in, they have to hail back in. There's 100% dockside monitoring by a third party.

A question was asked earlier today about whether you could have a third party weigh in the fish and all that. These fellows do that and we're paying for it. We have no objections to it, as long as the resource is sustainable. What we are afraid of is that if things blow apart and anybody's allowed to go fishing without some control, stocks could be threatened.

The Chair: Thank you, Joe.

Mr. Stoffer, and then the final question is to Mr. Duncan.

Mr. Peter Stoffer: Thank you, Mr. Chairman.

I thank the witnesses for what I consider a very well-done presentation in terms of its information.

You state on page 7 that you have no objections to aboriginals being integrated into the snow crab fishery. You also mention that there are several people within the association who are aboriginal people from New Brunswick. Do those people fish on the high seas?

Mr. Doug Cameron: Oh yes—with a bigger boat than we have.

Mr. Peter Stoffer: Yet you say here, on the geographical extent of the treaty rights, that the bays, inlets and estuaries are included, but the open seas are excluded. Is that a legal opinion you're offering, or is it just the association's opinion?

Mr. Doug Cameron: It's from the explanation that was provided in the court document of November 17. I was just trying to follow the format of the hearing notice.

Mr. Peter Stoffer: That's understandable. I also find it fascinating that you're the first group to come forth, either in Ottawa or here, to openly state that in your opinion the non-status aboriginals will also qualify under the Marshall decision. Is that correct?

Mr. Doug Cameron: Yes. My reading of it right now is that it's status only, but I suspect that some non-status will have a court case. I just want to plan for the future. In the event that they are made eligible, we don't want it to be a big surprise.

Mr. Peter Stoffer: I find that just fascinating.

Thank you. I don't have any more questions.

• 1540

Mr. Yvan Bernier: I would like a clarification, Mr. Chairman.

The Chair: All right. Go ahead.

[Translation]

Mr. Yvan Bernier: I don't want to cut off John, but are we talking about non-status Indians, off-reserve Indians? Mr. Marshall is an Indian living off-reserve. This has a different meaning, as I understand it.

[English]

Mr. Doug Cameron: Status.

The Chair: Status.

[Translation]

Mr. Yvan Bernier: Status.

[English]

The Chair: Mr. Duncan.

Mr. John Duncan: Thank you very much.

I have a comment and I have a question. The comment is that the fact that you have 40 or 50 possibly status aboriginals in the snow crab fishery tells me you—

Mr. Doug Cameron: Non-status, sir.

Mr. John Duncan: Those 40 or 50 are non-status?

Mr. Doug Cameron: All I know is they carry the card. I was told that 40 to 50 carry a card. I know the difference between status and non-status and I know there's a difference in the card, but I was shown two cards by non-status.

Mr. John Duncan: Okay. It doesn't change my point, which is the fact that you don't know and you don't differentiate, and I commend you for that.

One of the unfortunate results that will come out of the Marshall decision is that enumeration is probably unavoidable, enumeration on racial grounds. As distasteful as that may be, your industry will probably end up having to do that, as will all the other industries. That's basically just a comment.

On page 3 of your document—I think Yvan was talking about this paragraph too—you said that “included in the formula is provision for access by aboriginal and non-aboriginal crab fishers when the combination of stock and prices reaches a certain level”. Was that the language of the 1997 document, or is that the language based on the fact that you're addressing the Marshall decision?

Mr. Doug Cameron: I regret that we haven't got copies around. We supplied copies. The wording is all listed there.

Mr. John Duncan: So it did contemplate aboriginal in the 1997 document?

Mr. Doug Cameron: Yes. If you take a search through here, there are at least three different areas within the document itself where mention of aboriginals is made—

Mr. John Duncan: Yes.

Mr. Doug Cameron: —and it certainly is again made when this sharing formula is set.

Mr. John Duncan: But until now there's never been anything that kicked that provision in? Am I correct in—

Mr. Doug Cameron: I'm sorry?

Mr. John Duncan: Until this time that has never kicked in?

Mr. Doug Cameron: In 1997 it did. There was fishing in 1997 and 1998, two boats.

The Chair: I do have a copy of the co-management agreement, and that will be made available to committee members as soon as we can get it done.

Mr. John Duncan: Is that clause possibly leading to a disincentive for proper stewardship, from the standpoint that if you carry out that stewardship you don't reap the rewards directly?

Mr. Doug Cameron: That's a good question. One of the things we've been doing is fishing at a certain exploitation rate. You look at the total biomass that's there to determine what the harvest level is, and you apply an exploitation rate. The rate that was applied we think might have been too low. There's been a question with that, and we do have these peer review meetings of what the number should be to ensure sustainability but, at the same time, take all the crab out of the waters that can be taken out so that it can be exploited, turned around and sold, and people make money off it.

Mr. John Duncan: Do you believe you will be changing the formula in the next five-year agreement?

Mr. Doug Cameron: Which formula?

Mr. John Duncan: The TAC formula.

Mr. Doug Cameron: We'd love to see the stock stay. The only thing that could change would be exploitation rate. It can move around. The wonderful thing about this peer review is that it's DFO and industry, all representatives from industry, but they bring in five referees, five independent referees who are paid for it. These are scientists who are scattered around the hall, and they're allowed to question DFO scientists on the system that was used. They too make recommendations, as I understand it, to the department on this.

• 1545

Mr. John Duncan: Thank you very much.

The Chair: Thank you, John.

Thank you, gentlemen.

I guess those are all the witnesses we have time for. Just for the information of the committee, about 15 personal submissions have been handed in and will be made available, and there is a submission by Dr. Irene Novaczek, which will be given to committee members.

Before we adjourn, there is one point on a different issue. The Auditor General is bringing down his report late next week, and there's a chapter in there on the sustainability of Pacific salmon. It would be possible to have him before the committee on December 7. Is there agreement to do that so that we get can get this in the works?

Some hon. members: Agreed.

The Chair: All right.

With that, the meeting is adjourned until tomorrow morning at 9 o'clock at the Lord Nelson.