AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 10, 1997

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[Translation]

The Chairman (Mr. Guy Saint-Julien (Abitibi, Lib.)): We may now begin our public meeting since we have quorum. I know you have several meetings to attend and you have lots of work.

Today, pursuant to Standing Order 108(2), we shall be studying the aboriginal fishery with witnesses from the Department of Fisheries and Oceans: Mr. Pat Chamut, Assistant-Deputy Minister, Fisheries Management, and Mr. Jim Jones, regional director, Fisheries Management, Maritimes region (Gulf Fishery).

As is noted on our agenda, we will begin with the introduction of witnesses and then listen to their opening statements, after which there will be questioning by members. Item 4 should not have been on our agenda, it's a mistake on my part. The item "Other Business" should not be on today's agenda. So we will remove item 4 and move directly on to adjournment. Is that agreeable to you?

Some Hon. members: Agreed.

The Chairman: Thank you.

I think Mr. Scott would like to file a motion.

[English]

Mr. Mike Scott (Skeena, Ref.): Yes, thank you, Mr. Chairman.

I apologize with the greatest respect to my friend from the Bloc and other members who would prefer to have this motion in French. We don't have it translated in French as of yet, but we will have it very shortly.

The motion I would like to move, Mr. Chairman, is that the Minister of Indian Affairs and Northern Development appear before the committee at the earliest opportunity, but not later than May 14, 1998, to address the main estimates for the fiscal year of 1998-99.

[Translation]

The Chairman: Thank you, Mr. Scott.

Do you agree, Mr. Patry?

Mr. Bernard Patry (Pierrefonds—Dollars, Lib.): No problem.

The Chairman: Yes, Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): Mr. Chairman, I'd like to take advantage of this opportunity to tell my friend from the Reform Party that I accept the tabling of his proposal.

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I'd like to make sure that we are all on the same wavelength. Henceforth I intend to accept only documents that have been translated. We are still in Canada and we have an Act on bilingualism. In my opinion, there are still two founding peoples in Canada, one of which is French-speaking. That has always been recognized everywhere.

I want to inform you all today that from now on I will be opposed to the tabling of any documents that have not been translated into French. It's a matter of principle. So far I've let lots of things go by. The members of the Bloc Québécois have discussed this matter and we consider it to be an important point. We're of the opinion that documents must be tabled in English and in French.

I'd like to put this question to my unilingual English- speaking colleagues in particular, I wonder whether they would go along with a document being tabled only in French. I would not object to them refusing the tabling of a document available only in French. I'm simply asking for an application of the same principle so that documents cannot be tabled only in English. I think this is a warning for everyone. I haven't raised the alarm up until now but now is the time to do so. I'll go along with Mr. Scott tabling his proposal today but henceforth I cannot accept any document that has not been previously translated.

The Chairman: Thank you. You've raised a good point. I think the Quebec caucus of the Liberal Party shares your point of view and would also like to see documents drafted in the two official languages. This resolution also applies to the departments appearing before us.

Mr. Claude Bachand: Exactly.

The Chairman: Mr. Iftody.

[English]

Mr. David Iftody (Provencher, Lib.): I just want to agree with the honourable gentleman's observation and his sentiments behind it. I certainly support him on his intervention. I think it's quite proper and it's incumbent upon this committee to provide those documents in both official languages.

[Translation]

The Chairman: Thank you.

Mr. Claude Bachand: May I add something?

The Chairman: Yes, Mr. Bachand.

Mr. Claude Bachand: I do not intend to make this an absolutely rigid rule. I can understand that Native groups may fly in without having their documents translated. It would be rather awkward for me to say that I don't want to listen to them and leave. Whenever the Clerk makes arrangements with witnesses, I would like her to mention that it would be highly preferable to have a translation of their documents. But I don't think I'd go so far as to refuse to listen to witnesses from British Columbia appearing in the morning with a document that was just completed the previous evening and that was not translated.

On the other hand, it's very hard for me to understand why a department would not have its documents translated. The departments have no reason for not doing so. They have a whole army of people who can do translations for them. So from now on I'll deal with each case as it comes up. I certainly do not intend to let departments get away with not fulfilling this obligation. Nor will I accept the tabling of motions from my colleagues without the motion being translated because we do have a very rapid translation service in the House. As far as the witnesses go, I'll take a case- by-case approach. In other words, as far as I'm concerned, this need not necessarily be a blanket rule. I can be flexible when it comes to hearing witnesses.

The Chairman: Does that include Crown corporations as well?

Mr. Claude Bachand: Yes.

The Chairman: Thank you.

Mr. Scott.

[English]

Mr. Mike Scott: My friend's points are very well made. I apologize for not having both a French and an English version available today. He has my undertaking, as do the other members of the committee, that I will never move another motion unless we have it in both official languages and ready to table as such when we move the motion.

[Translation]

The Chairman: Thank you, Mr. Scott. You are a great Canadian.

Before we return to business on the agenda, I will put Mr. Scott's motion to a vote.

(Motion carried unanimously)

The Chairman: Today's witnesses are Mr. Pat Chamut and Mr. Jim Jones. Do you have an opening statement?

[English]

Mr. Pat Chamut (Assistant Deputy Minister, Fisheries Management, Department of Fisheries and Oceans): Yes, I do, Mr. Chairman. I have a very brief opening statement I'd like to offer the committee. I would also like to advise the committee that copies of my statement will be made available to the committee in both official languages later today or tomorrow, so I plan to circulate my opening remarks to members.

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Fisheries have always been central to the economic and cultural way of life of aboriginal peoples. In those areas of Canada where the Department of Fisheries and Oceans is responsible for management of the fishery, the department has historically tried to accommodate the interests and needs of aboriginal groups. This has not always been easy, nor have we always been successful. In the past, the department's relationship with many aboriginal groups has been adversarial and sometimes characterized by conflict. I think this has been particularly true in the past decade, as courts began to define the nature and scope of aboriginal rights with respect to the fishery.

With the 1990 decision of the Supreme Court in the so-called Sparrow case, it became evident that new approaches to management and regulation of the aboriginal fishery were required. The department initiated the Aboriginal Fisheries Strategy, the so-called AFS, in 1992. The strategy is designed to enable the department to manage the fishery and provide for fishing for aboriginal groups in order to meet their food, social, and ceremonial requirements and other fisheries-related matters in a manner consistent with the decision of the Supreme Court in the Sparrow case.

The policy we have adopted reflects direction from the court and recognizes the priority of aboriginal access to fish for food, social, and ceremonial purposes over all other uses of the fishery, subject to conservation of the resource. The practical effect of this is if measures are required for conservation of the fishery resource, then its other users, such as the commercial or recreational harvesters, must bear the brunt of these conservation measures.

The objectives of the Aboriginal Fisheries Strategy are basically threefold. First, the strategy is intended to provide us with the authority to regulate aboriginal fishing. Second, it's designed to provide a framework for ensuring conservation and management of the fishery. Thirdly, it's intended to provide economic benefits to aboriginal groups.

Under this strategy, the department establishes a regulatory framework for the management of an aboriginal group's fishery through the negotiation of mutually acceptable, time-limited fisheries agreements. These agreements are finalized between DFO and the aboriginal organization and culminate in the issuance of a communal licence to that particular aboriginal group.

These fisheries agreements that are negotiated under the Aboriginal Fisheries Strategy may contain a number of different elements. For example, they may include a harvest allocation to the aboriginal group that stipulates how many salmon may be harvested by a particular group, or how many lobster traps may be fished by that group as it is in the pursuit of its fishery.

Secondly, they may also stipulate the terms and conditions that will be included in the commercial fishing licence. For example, the terms and conditions in the agreement might indicate who may fish, how they may fish, what sort of gear they may use, where and when they can fish, as well as enforcement provisions. These agreements essentially lay out the management plan for how the aboriginal fishery will in fact be conducted.

In addition to these arrangements with respect to harvesting, they may also include arrangements for cooperative management of the aboriginal fishery by the aboriginal organization and the Department of Fisheries and Oceans. For example, they may include stipulations dealing with the collection of information on harvests by the aboriginal group.

These agreements may also include identification of cooperative management projects designed to achieve an improvement in the management of the fishery or the abundance of fish. For example, they can cover elements of habitat enhancement or the conduct of stock assessment activities. These agreements may also provide for the contribution of money to support cooperative fisheries management activities that are conducted by the aboriginal organization.

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Recent court judgments, beginning with the Sparrow case in 1990, have added a very large degree of complexity to the job of the department. In the conduct of our responsibilities now, DFO is obligated to manage fisheries in a manner that is consistent with aboriginal rights. The department cannot infringe on an aboriginal right to fish unless that infringement can be justified.

What makes it difficult often is that DFO does not itself have the mandate to determine whether any particular aboriginal group has a right to fish. Accordingly, agreements we negotiate with aboriginal groups are neutral on the issue of the existence of an aboriginal right.

We neither confirm nor deny aboriginal rights. We do not require that the aboriginal group proves they have a right to fish before there is negotiation of an AFS agreement or the issuance of a licence. The issuance of a licence under this program is not a recognition that a particular aboriginal group has an aboriginal right to fish. What it is intended to do is provide us with the capacity to ensure that we can properly manage and conserve the fishery.

The communal licence we issue to aboriginal groups authorizes their fishing and, as I said earlier, stipulates how the fishery is to be conducted. When an agreement is reached with an aboriginal group, and a member of that group fishes contrary to the terms of the licence, then the licence is used as an enforcement mechanism.

Non-compliance with the terms of the licence could include a variety of activities. For example, it could include an individual fishing in a closed time or a closed area. It could include someone fishing with improper gear. It could include harvesting undersized fish or lobster, or the sale of fish under the licence. In these circumstances where violations are observed and can be demonstrated, the department then is able to take action.

Where a member of a band or an aboriginal organization defends a charge on the basis that they have an aboriginal right, and the court finds that such a right has in fact been infringed, the agreement we've negotiated essentially provides evidence that the consultation required by the Sparrow decision has in fact occurred and demonstrates the concurrence of the aboriginal group with the measures implemented to regulate the fishery.

In situations where we sit down and negotiate with an aboriginal group and we are unable to reach agreement with respect to the conduct of their fishery, the department will then in that circumstance issue a communal licence. That licence and the conditions in that licence will be based on the consultations that have been held and they will incorporate the conditions that, it is believed, will meet the conditions of Sparrow and enable enforcement action to be taken.

Much of our program responsibility in terms of being able to manage and regulate the aboriginal fishery hinges on the conduct of our negotiations, the reaching of agreements, and the issuance of a communal licence, which provides us with the authority to regulate the exercise of the aboriginal fishery.

The AFS program we have implemented, beginning in 1992, has been funded at about $25 million. Over the course of an annual cycle we would normally negotiate about 125 agreements with various aboriginal groups. In 1997-98 we negotiated 74 agreements in the Pacific region, which includes British Columbia and the Yukon, and we had 50 agreements in Atlantic Canada and Quebec.

Of the 74 agreements we negotiated in the Pacific, four include what we call “pilot sale” projects. Under these arrangements we are allowing, as a matter of permit, aboriginal people to harvest and sell the fish they take in their fishery. These four areas are located in the lower Fraser River, the Somass River on Vancouver Island, and the Skeena River near Prince Rupert. It's these four projects that have been the focus of much of the controversy that surrounds the implementation of the Aboriginal Fisheries Strategy.

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I mentioned earlier that in addition to provisions governing the harvest of fish, the Aboriginal Fisheries Strategy also includes measures to improve the economic well-being of aboriginal communities. An integral component of the AFS is something called the allocation transfer program. This program is designed to facilitate the voluntary retirement of commercial licences and the re-issuance of these licences to eligible aboriginal groups in a manner that does not add to the existing effort on the resource. It essentially amounts to the transfer of a licence to the department from a commercial fisherman who voluntarily relinquishes his or her licence. That licence is in turn provided to an aboriginal community to provide the community with the opportunity to engage in the commercial fishery as other individuals do.

Funded at $2.6 million a year, the allocation transfer program addresses a shared initiative between aboriginal groups and the department to increase and integrate these groups into the commercial fishery. It is a means to help to stimulate economic development opportunities and to develop expertise in the fishery in aboriginal communities. It also serves as a useful basis for developing a more cooperative relationship between these communities and the commercial fishing sectors.

In another component of the program, members of aboriginal groups are being trained as guardians to help us with enforcement in aboriginal fisheries under the program. The roles and responsibilities of these guardians include such functions as conducting patrols, often with departmental fishery enforcement officers; inspecting gear; issuing warnings; and providing catch information to the department. Through these cooperative initiatives, we are not only assisting in the development of management capability within aboriginal communities, we're also enhancing our own ability to manage and conserve the fishery. I think these efforts have fostered a much more cooperative and constructive relationship with aboriginal communities.

The implementation of this program, which commenced in 1992, has not been without problems, nor has it been without controversy. However, it certainly has achieved a number of important improvements in the management of the aboriginal fishery and in the conservation of the resource. The program has significantly changed our relationship with aboriginal communities. Prior to this program, it was one of confrontation and conflict. It is now one of constructive cooperation, and that provides important benefits to improved management of the resource.

The program has also provided us with improved regulation of the aboriginal fishery in many areas. It gives us better data on harvest levels, and more effective enforcement.

In B.C., where many first nations are working on habitat restoration and resource enhancement, their investments in these areas result in benefits that accrue to all resource users. In Atlantic Canada, where many first nations have previously harvested Atlantic salmon using gill nets, they have now moved away from that technique. They have now adopted selective harvesting techniques that enable them to harvest their salmon while avoiding impacts on weak stocks or on large salmon, which as we know are in declining abundance.

And finally, the investment of co-management money in aboriginal communities and the transfer of commercial fishing licences have provided much needed employment. They have provided for skills development and significant economic benefits. Overall, the program has provided a number of fundamental benefits both to the resource and the department and to aboriginal people.

Now, if I can, I'll say a final word on treaties. The department is not responsible for negotiating treaties, but is in fact very much involved in the negotiation of treaties. Frequently, fisheries resources are an essential component of those discussions, so matters such as access to the fishery, integration of aboriginal people into the management of the fishery resource, and the negotiation of their authority to manage their responsibilities, are important components of treaty negotiations.

For the Nisga'a treaty in B.C., the final agreement is now being negotiated based on the agreement in principle that was signed in April 1996. There are a number of provisions in it that deal with fisheries. Among other measures, the treaty will provide funding to the Nisga'a for the acquisition of commercial fishing licences. It will also provide certainty with respect to their access to the fishery once it is concluded.

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In addition to the Nisga'a treaty, approximately 50 first nations are currently involved in the B.C. Treaty Commission process. Furthermore, treaties are currently being negotiated in the north, off the east coast, with the Labrador Inuit Association, and in the offshore area of northern Quebec, in the Makivik area.

In B.C. and elsewhere there is one additional issue which has added even additional complexity and possibly some confusion to the issue of treaties and the nature of aboriginal rights, and that is the Supreme Court decision in the Delgamuukw case, which was decided in December of last year. This is a very complex decision. It is one that is currently being analysed by the department. I have to say that what it will mean eventually for the use of the fisheries by aboriginal groups is not yet understood. It's a matter that will no doubt become clearer as case law unfolds. Once we have a full appreciation of the impacts of the court judgment, it is likely that it will require some adjustment of our programs to ensure we are managing in a manner that does respect conservation and the decision of the court. So our program needs to be flexible in order to adapt to what the court is telling us about the nature of rights and how it may affect the exercise of our management responsibility.

With that, Mr. Chairman, Mr. Jones and myself would welcome any questions committee members may have.

[Translation]

The Chairman: Thank you. Before we begin questions, I would like to point out to you that although you did mention Makivik and the people in Labrador, you did not mention the shrimp fishery. The Inuit of Nunavik, Labrador and Newfoundland are currently having a problem with this fishery in Eastern Canada and the Atlantic region. I would also appreciate it if you could tell us about the cost of fishing licenses, which has risen sharply in the past several years.

[English]

Mr. Pat Chamut: Thank you, Mr. Chairman.

Northern shrimp is an issue that has in fact become a difficult one for the department to address. The abundance of northern shrimp populations has expanded rather dramatically. As a result, in 1997 allocation decisions were taken by the Minister of Fisheries and Oceans to provide for access for fishermen in Newfoundland and fishermen in Labrador to harvest the stocks of northern shrimp. Allocations have been made on the basis of the principle of adjacency. In other words, those who are close to the resource will have access to it. I think it's safe to say many different groups are interested in having access to the fishery to take advantage of the commercial opportunity associated with it.

No decision has been taken yet on the conduct of the 1998 fishery, but the minister will be making decisions on access to that resource once we have the report from the scientists on stock abundance. Once we have those forecasts we can sit down and design an allocation plan and a management plan which will be based on the principles of adjacency and historic dependence, which have frequently guided our allocation decisions on resources such as northern shrimp and groundfish.

But I agree. Many, many different groups are seeking access to this resource, because it is quite lucrative, and many people see it as an important economic opportunity with which they can start to build a more stable economy for their communities.

[Translation]

The Chairman: You did not say how much the fishing licenses cost nor did you say how much the cost has gone up by over the past three years. How much do they cost for these people, these communities and the Inuit, who rely so much on the fishery?

[English]

Mr. Pat Chamut: Yes, I regret that I noted that down and I neglected to answer it.

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Mr. Chairman, the cost of a licence is a direct reflection of the value of the harvesting privileges that are conveyed by the licence. As the amount of abundance of a particular resource increases, the value of that licence also increases. In many areas—and northern shrimp is probably a good example—as the abundance of the resource has increased, the value of that licence will also have increased.

The converse is true with other species where we may see declines in the abundance of species. For example, in many areas groundfish stocks are at very low levels, the fishery is closed, and as a consequence, the value of that licence would be much lower. So the increases that have occurred would be a consequence of the increase in the overall abundance of the stock, and we can expect that as the stock abundance fluctuates, the value of the licence may fluctuate as well.

[Translation]

The Chairman: Fine. Let's begin the questions. Perhaps my colleagues will be heading down that same road, since I still haven't got an answer about the cost of these licenses.

Mr. Scott.

[English]

Mr. Mike Scott: Thank you, Mr. Chairman.

Mr. Chamut is well known to me. We've had many discussions on the AFS over the years. As Mr. Chamut would well know, a provincial court judge in British Columbia has just recently found and ruled basically what the Reform Party has said for five years now: that the minister actually does not have the authority under the Fisheries Act to implement and maintain an AFS. In fact this is a policy that is ultra vires at the present time. However, I'm sure Mr. Chamut would disagree with that, and I see the minister definitely disagrees with that. So I suppose we'll have to argue that in another forum.

What I would ask today is this. First of all, with respect to the lobster fishery on the east coast, is it not the case that the aboriginal harvest can take place outside of when the regular commercial lobster fishery is taking place? Furthermore, what evidence is available to demonstrate an aboriginal dependence on lobster for food purposes, let alone for trade in lobster?

Mr. Pat Chamut: Thank you, Mr. Scott.

If I may, Mr. Chairman, I'd like, with respect, to offer a comment about the first issue Mr. Scott has raised, which has to do with the recent court judgment he referred to that he indicated affected the minister's authority to implement and maintain the AFS. It's important that I comment here that what the judge decided was a simple matter, and that was the guilt or innocence of the accused in the case he was hearing. The judge did not make a ruling on the validity of the regulations that guide the Aboriginal Fisheries Strategy.

In his judgment he did offer observations that may reflect his opinion but are not legally binding. There is nothing in the judgment that alters the authority of the minister to manage the fishery or to allocate the fishery. So his authority is unchanged by the judgment to which you did refer.

With respect to lobster, the aboriginal harvest of lobster for food purposes is conducted generally with the same requirements for conservation that are applied to the commercial fishery. So things dealing with the nature of the trap, the size of the lobster, the retention of buried females, and things of that nature are applied in the commercial fishery as they are applied in the aboriginal fishery.

The one area where there may be a difference is with respect to the season within which the harvest can occur. Normally in the aboriginal fishery we restrict the number of traps that may be used to harvest lobster for food purposes. The use of those traps can extend over a longer season than what the commercial fishery is able to fish. But we have to understand that in many cases we're dealing with a very small number of traps relative to the total number of traps that are fished by the commercial fishery.

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In one situation there may be one band that will fish 2,000 traps through the course of a particular period of time. So the aboriginal utilization is 2,000 traps. The regular commercial fishery in that area would be 400,000 traps. So the amount of gear being used by the aboriginal people is very minuscule relative to the total number of traps being fished commercially.

In terms of their dependence on lobster for food or for sale, there are no circumstances in the Maritimes where the sale of lobster caught as part of an aboriginal food fishing permit is permitted. In other words, sale under the terms of that licence is illegal and action is taken by the department where we find circumstances where lobster is being sold.

In terms of their dependence on lobster, as I indicated in my remarks, the department is not in a position where in every case it goes back and researches whether a band can demonstrate whether it did or did not utilize lobster for food purposes.

Our agreements are silent on the issue of whether an aboriginal right exists. They are intended to provide us with an administrative and regulatory framework that allows us to regulate the conduct of the aboriginal fishery.

[Translation]

The Chairman: One last question, Mr. Scott.

[English]

Mr. Mike Scott: For the benefit of the committee members, what Mr. Chamut has just said, in a condensation of his answer, is that aboriginal people did not have a dependence on lobster for food purposes on the east coast prior to European contact. Furthermore, under the current rules, fishing does take place for lobster by aboriginals outside of the regular openings, and those openings were established for conservation purposes. So I think it's very important for committee members to know that.

Second, I would like to ask Mr. Chamut what evidence he has that the public of British Columbia supports the AFS. Is he not aware that the public of British Columbia doesn't support the sale aspect of the AFS? The recent judgment that has come down in British Columbia cuts away any serious support for the notion that there's an authority vested in the minister to even conduct this fishery.

A logical consequence of his policy, which is not supported by the public in my contention, is there will be escalating and more serious conflict on the Fraser system and there will continue to be declining fish stocks. We've already seen disastrous returns of the sockeye on the Fraser system, for example, since the implementation of the AFS. The escalating conflict could actually end up in violent confrontation in the future.

Mr. Pat Chamut: First of all, Mr. Scott, you've made an observation and I think you've asked a question. I'm not absolutely sure about the second, but I'll try to address the issue.

Mr. Mike Scott: I want to know what public support you have for your policy.

Mr. Pat Chamut: On the first issue you raised, about lobster fishing, where you said lobster fishing by aboriginals occurs in such a manner as to affect conservation, if you have taken that from my statement I must offer some additional clarification, because that certainly was not what I had indicated. I think I had indicated that the harvesting of lobster by aboriginal people over an extended period of time, given the amount of effort they're using, is not regarded as a conservation threat. So I want to disabuse you of any suggestion that I have indicated it represents a threat to conservation. That was not the intent of what I was saying.

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The intent is we do regulate the lobster fishery for both aboriginal people and for commercial harvesting in such a manner as to ensure that conservation objectives are met. It would not be a fair assumption to take from my statements that conservation is threatened by the manner in which we regulate the aboriginal fishery.

In terms of the issue of the degree of support in B.C. for sale, it's like many different controversial issues: there are a number of individuals and groups that support the current policy and there are a number of groups that don't support it. I have not, nor has the department, gone out and done polling to determine the exact extent of public opinion. But suffice to say that in the view of many, the program that we're implementing provides us with an important framework within which we can better regulate the conduct of the aboriginal fishery. It is designed in such a manner that we are able to regulate the fishery, get better information on catch. It's on that basis that we intend to proceed to continue with that program in 1998.

[Translation]

The Chairman: Thank you, Mr. Chamut and Mr. Scott.

Mr. Bachand.

Mr. Claude Bachand: First of all, I'd just like to say that I have a lot of sympathy for Mr. Chamut, when I see how the department of fisheries and oceans is trying to define the problem of the aboriginal fishery. I sympathize with him, and I acknowledge that he really does not have an easy role to play.

We are dealing with a public opinion, which is clearly against this fishery, and I must agree with my colleague from the Reform Party in this regard. Furthermore, this issue seems to have many legal aspects. Your department is dealing with trial decisions, appellate decisions and Supreme Court decisions, which can all have an impact on your policies.

It truly isn't easy to satisfy everyone and to find the common denominator that will please everyone, while at the same time complying perfectly with court rulings regarding fisheries.

In my opinion, we should follow a number of steps when we evaluate the aboriginal fishery as compared to the regular fishery. Can you confirm that conservation is the first priority? People seem to be saying that at the time. If stocks are threatened, there is no food fishery or commercial fishery, and necessarily no recreational fishery. Usually that is the order of priority when licenses are allocated.

I don't believe that the problem is with the food fisheries. Rather, it emerges when we start looking at commercial fisheries. I am monitoring the trend in the case law in this area. The Supreme Court's decisions in the Van der Peet, NTF Smokehouse and Gladstone cases say that aboriginals are entitled to carry out commercial fishing.

There is a restriction on this, and I would like you to begin by telling us about that. Apparently the commercial fishery must be part of the aboriginal community's traditions. If the community can prove that they fished in the past and sold the fish, that shouldn't change today. I think that's where the problem is right now. You mentioned four pilot projects for sales. On the west coast, there are currently people on the docks and merchants who can't go out and fish because fishing and sales licenses were allocated to aboriginals. I think that you've monitored the trend in the case law, and I agree that it should be that way, even if that causes problems.

My last question is about the Delgamuukw decision. You said that you were in the process of interpreting it. This decision goes far; it goes all the way back to the oral traditions. According to the courts, if Aboriginal communities wanted to be allocated commercial licenses, they had to show very solid evidence that selling fish was part of their traditions. Now people are saying that the oral tradition will be very important for this solid evidence. I suppose it will also affect the policies of the Department of Fisheries and Oceans.

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I realize that you are not in an easy situation. Does my assessment of the priorities—conservation, the food fishery, the commercial fishery, and finally the recreational fishery—still hold true?

Secondly, do your four pilot projects on the West coast keep in mind the decision that this fishery must be part of the communities' traditions? And how might the Delgamuukw decision be an additional problem for you, by obliging you to follow the oral traditions submitted to you either directly by the Aboriginals or by court orders?

The Chairman: That's a good question, Mr. Bachand.

Mr. Chamut.

[English]

Mr. Pat Chamut: Those are very interesting questions that have been raised. I'll try to deal with them in order.

On the issue of priorities, we follow a very clear hierarchy in terms of managing the fishery. The first priority is always conservation. You indicated that if the stocks are at very low levels then we should not be allowing even any subsistence fisheries. That in fact is exactly our policy. Where stocks are at low levels of abundance and we are concerned about their long-term well-being, we will not allow any harvesting to occur.

When there is a harvestable surplus, though, the first priority for allocating that harvestable surplus would go to aboriginal people for subsistence purposes. That's consistent with the judgment we've received in the Sparrow decision and in subsequent court cases. It's only after we're satisfied that conservation and subsistence needs are met that we would then allocate any fish to commercial purposes, or recreational purposes, depending on the nature of the resource and the fishery.

So we have a very clear hierarchy of how we approach this, and I think it is consistent with what the courts have been telling us.

You also mentioned the judgments we referred to, Van der Peet, NTC Smokehouse, and the Gladstone case. These are extremely important cases for us because they address the issue of whether or not there is an aboriginal commercial right to sell fish.

As you know, in the judgments the court determined that in two of those three cases, the group did not meet the test to justify the existence of an aboriginal right. The court did decide that the Heiltsuk Tribal Council, a group on the central coast of B.C., was able to demonstrate that they had an aboriginal right to sell a product called “herring spawn on kelp”. So this group does enjoy an aboriginal right, and we have been negotiating with them in order to provide them with access to the resource and accommodate the court's finding.

I have to say, it's a very difficult issue for the department to address, because in determining that the group has a right to harvest and sell this product the court did not say or give us any indication of the magnitude of that right. As a consequence, we have been negotiating with groups, trying to find some consensus and come to agreement, which we have been able to do now for two years. But it becomes increasingly difficult to determine how big the right really is, or how big it should be.

The court told us in those three cases that the test for having an aboriginal right was that the practice had to be a distinctive part of their culture, and it had to be something that was an integral part of their culture prior to European contact. Only one of the three groups was able to meet that test and demonstrate that it met it. But it has added complications to our management, because it's another issue that is somewhat unclear, and again, the department is not in a position where it can effectively assess historic evidence or carry out that kind of research to determine whether or not a band or a group should have an aboriginal right to use or sell a particular product. So it is an additional complexity that we face.

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The issue becomes, I think, more difficult when I move to your third question of oral tradition. I would have to say that we've not yet turned our minds to this. I think it's something the courts will have to take into account as they deal with these issues. But as the Department of Fisheries, where we manage the fish, we're not in a position where we can listen to oral testimony and make judgments about the existence or non-existence of a right.

For that reason, our policy is very neutral on the question of whether a right exists. It's not our job to determine that. It's our job to manage the fishery and to find mechanisms by which we can meet our responsibilities for conservation and accommodate what the court is telling us about aboriginal rights.

The Chairman: Mr. Bryden.

Mr. John Bryden (Wentworth—Burlington, Lib.): I'm not very expert in this area, but I have to make the observation that all I hear is courts, courts, courts: courts are telling us this, courts are telling us that. It really does make me wonder whether Parliament and legislators have anything to do with this whatsoever. I do note the fact that the courts are not elected. Courts are old gentlemen, usually put in there by patronage appointments, and there is no guarantee they know what the heck they're doing, in terms of people at large.

Am I right in assuming that if we track back these court decisions that are having such an influence on you, it really has to do with the Charter of Rights? It's a Charter of Rights interpretation that I take it begins this whole process through the courts. Is that correct?

Mr. Pat Chamut: I think that's a reasonable interpretation. The charter did recognize and affirm existing aboriginal rights as of 1982, so the courts have in many cases been dealing with the issue. And certainly in the case of the fishery, there have been a number of judgments that have helped to define exactly what those existing aboriginal rights may be with respect to the fishery.

Mr. John Bryden: I'm just asking an opinion now, because you've been concerned with this problem for a long time, but is this not a case now where the legislators should start taking action? And can you give me some sense of where that beginning should come? Is it fisheries? Is it the justice department? How can we on this committee begin to come to grips with solving this problem as parliamentarians rather than leaving it to the courts to direct policy?

Mr. Pat Chamut: It's a very difficult question you ask, and I learned a long time ago.... I've been much involved with aboriginal fisheries management and with fisheries management in general, but I've also learned in my experience that one probably should not offer an opinion. As a good public servant, it's something I would normally hesitate to do. But I think, if I can offer at least an observation—

Mr. John Bryden: Please.

Mr. Pat Chamut: —it seems to me what the court has done is it has provided guidance to the department and to.... Certainly with respect to our management and what we have to take into account, they have defined what the law of the land is. And my view is that our best approach as a department, because I don't see that there is any.... There is no opportunity to go back and change any of these particular decisions that have been made, and I'm not suggesting that would be the case.

In my opinion, the most appropriate thing we can do is work cooperatively through negotiations to come to some sort of agreement that best meets the objectives of all parties.

We are dealing with a management regime where the courts have stipulated what the rights are, and rather than get into much conflict over trying to change or modify that, which I think would be not an appropriate step to take, because I don't think that would be at all productive.... But I do think our approach of trying to negotiate arrangements that provide for a manageable and appropriate regulatory framework for the conduct of the fishery is the very best approach we can take. We've learned that going to courts, conflict, and very unconstructive behaviour help nobody. They often penalize a resource and penalize other users. Our best approach is to negotiate a solution that, first and foremost, puts the needs of the resource first, and one that provides some stability and certainty for all parties in the fishery.

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Mr. John Bryden: Just one other question, then. I'm right in assuming that it is impossible for the department to make long-term policy on this issue because you can never be sure what a court is going to rule. And we have this last case in which the department is now going to have to take into account decisions of the court based on oral traditions as opposed to written traditions. I am correct if I assume that as a department, your problem in setting policy is that it always has to be ad hoc because you can never be sure what the next court decision is going to do to you in terms of your long-term planning on setting policy on this issue.

Mr. Pat Chamut: I would offer that it applies to virtually anything we do these days, and I don't mean just as a department. I think there are many different legal issues that come up in all manner of public policy. Our policies need to be flexible enough to take into account what the courts are telling us, and that certainly is the case here. The rate of change may have been possibly a trifle more dramatic than in other areas, but I think the concern about adjusting to court decisions is a reality that we live with every day. It doesn't necessarily constrain us from making long-term policy; it just means we have to be prepared to adjust our long-term policies to accommodate what the law is telling us.

[Translation]

The Chairman: Thank you, Mr. Chamut and Mr. Bryden. I would like to give the floor to Ms. Hurley, our researcher, so that she can clarify some things for us about aboriginal rights, and then after that, I will give Mr. McNally the floor.

[English]

Ms. Mary Hurley (Committee Researcher): The point of clarification is the following, Mr. Bryden. Your first question concerned whether or not aboriginal rights are recognized in the Charter of Rights and Freedoms. They are recognized in the Constitution Act, 1982, but section 35 is in fact outside of the Charter of Rights and Freedoms, which extends from sections 1 to 32. This means that section 35 is not subject to the justification test of section 1 of the charter; however, the Supreme Court has constructed a justification test inside section 35 of the Constitution Act.

Mr. John Bryden: Thank you. That's very helpful.

[Translation]

The Chairman: Thank you very much, Ms. Hurley. That is why we have such good researchers. Thank you very much.

Mr. McNally.

[English]

Mr. Grant McNally (Dewdney—Alouette, Ref.): Thank you, Mr. Chair.

I just want to go back to some of your earlier comments. The courts are telling us certain things, and we have to listen to the courts because the courts have said what rights are. You referred to Judge Thomas' decision earlier, and to the fact that in speaking about a commercial fishery—and you alluded this being his opinion and not necessarily law—he said that either a commercial fishery is open for all or it's closed for all.

You also mentioned that courts have said what rights are, although I would argue that the ministry often defines the parameters of those rights through its actions, how or what they negotiate or allow to happen. I'm in agreement with what my colleague Mr. Bachand mentioned about the commercial aspect of the aboriginal fishery. You note and have stated, both in your brief and here as well, that you remain neutral on the definition of aboriginal rights. By entering into these agreements and by in fact conferring this action from the ministry in this area, though, I would argue that down the road this would in fact be a plank for the argument that the government has indeed bestowed this right through its actions in this Aboriginal Fisheries Strategy. I'm wondering if you would agree or disagree with that.

Mr. Pat Chamut: Again, it's a very central issue to what the department is attempting to do. I would say that in direct response to your question, no, the department is not conferring a right through the negotiation of these agreements. If you take a look at the agreements that we do negotiate, they have very specific clauses that make it clear that the agreements are without prejudice to the position of either the government or the aboriginal organization in terms of rights. They neither confirm nor deny the existence of aboriginal rights. And they have been very carefully—

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Mr. Grant McNally: Can I interrupt you just for a second?

Compare what the department or an individual within the ministry says with the actual action. You've offered your opinion. If it were taken to court, I think that judges would take a look not only at what words are said, but at the actual action. So I think maybe we would agree to disagree on that.

Perhaps I could ask you another question. I know our time is limited. The minister alludes to this, and you mentioned it also in reference to the Thomas case. It says in the minister's brief here:

Under the Fisheries Act, the Minister issues licences and, by extension, allocates harvests “in his absolute discretion”.

So when we get into the fact of where the decision comes from, the minister is saying here that it's his absolute discretion in terms of granting the authority for pilot sales and the commercial aspect of the aboriginal fisheries.

I'm not an expert in this area. The Fraser system is a big part of my riding. I'm wondering if you can help me with the pilot sales. Are the pilot sales the commercial aspect of the aboriginal fisheries? If that is so, I would like to know specifically what the size is. I'm thinking mainly of British Columbia. I know we're also looking at other areas as well. What's the commercial aspect, the pilot sales, and the dollar value of that?

I have one other question. Under the licensing arrangements with the aboriginal fisheries and those involved in it, is there an ability to transfer the licence to somebody else, either an aboriginal or a non-aboriginal person, if the person within that aboriginal community decides they don't want to undertake, for whatever reason, their allotted amount under their licence?

There are three or four questions there. I think I'm done.

Mr. Pat Chamut: I'll try to answer as best I can. I may miss out some elements. I'm not sure whether there were three or six questions there.

You mentioned the minister's “absolute discretion”. It's in quotes because it's a phrase taken from the Fisheries Act.

Mr. Grant McNally: Right.

Mr. Pat Chamut: The permission to sell is an exercise of the minister's absolute discretion. In these areas, the privilege granted to these groups to sell the fish is just that: it's a privilege. It's not something that's based on the existence of a right, it's based on exercise of the minister's discretion.

Mr. Grant McNally: Right.

Mr. Pat Chamut: I think that was the intent of that particular phrase.

On the issue of pilot sales, there are only four pilot-sale projects that exist in B.C. That's true across the country as well. There are none in other parts of Atlantic Canada.

Of the four pilot sales, I'll deal just with the two that exist in the Fraser River. One is essentially an agreement with bands that are located toward the mouth of the river: Musqueam, Tsawassen, and Burrard bands. Under that arrangement, there's an agreement to allow the bands to harvest fish to a specific amount. They're permitted to sell that fish as well.

Mr. Grant McNally: Do you know what that amount would be?

Mr. Pat Chamut: Unfortunately, it's difficult to give you an absolute amount because it will vary depending on how the run comes into the Fraser River.

Mr. Grant McNally: Would there be numbers for, let's say, the last two years? Or could you look into it maybe?

Mr. Pat Chamut: I can tell you that, in the past, when the run sizes were strong prior to, let's say, around 1994, the fishery at the mouth of the river conducted by the Musqueam, Burrard, and Tsawassen bands generally covered around a little bit less than 200,000 sockeye.

There's a second pilot project, which involves the Sto:lo Band.

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Mr. Grant McNally: Yes, that's in my riding.

Mr. Pat Chamut: That's in your riding. And they would normally have in the range of 500,000 sockeye, as I recall.

Mr. Grant McNally: Roughly what would the dollar value be, commercially, for 500,000 fish?

Mr. Pat Chamut: It would depend very much on the price of the fish. If you assumed a price of around $8 a fish, which would probably be realistic for fish from that area, the figure might have been around $4 million which would be shared amongst the various people who were engaged in the fishery.

Mr. Grant McNally: Great, thanks.

The last question was just about the transferring of a licence.

Mr. Pat Chamut: The licences issued are actually issued to the communities. In turn the communities designate who can fish pursuant to the licence. An individual could not by themselves simply say, I want my neighbour or someone else to fish, it would be something that would have to be approved or decided by the community.

Mr. Grant McNally: If a community decided they wanted to sell a certain allocation to an aboriginal or non-aboriginal group, could they do that?

Mr. Pat Chamut: No.

Mr. Grant McNally: It has to be within the community.

Mr. Pat Chamut: Yes.

[Translation]

The Chairman: Thank you, Mr. McNally. Mr. Wilfert, you will be the last on the list. Then I have two questions for you, Mr. Chamut.

Mr. Bryon Wilfert (Oak Ridges, Lib.): Thank you, Mr. Chairman.

[English]

I take it the guiding principle in your department is conservation, that being the need to maintain a stable fishery.

For clarification, a comment was made earlier by Mr. Scott about lobster fishing on the east coast. You said, for example, 400,000 licences, or 400,000 traps, are issued in a particular period which would apply to commercial fishermen and to aboriginals. Or is it just to commercial fishermen?

Mr. Pat Chamut: Just to commercial fishermen.

Mr. Bryon Wilfert: And where do the aboriginals fit in on that?

Mr. Pat Chamut: They would be issued a communal licence—

Mr. Bryon Wilfert: For a band or for—

Mr. Pat Chamut: For a band. As part of that communal licence they would be provided with the opportunity to use a specific number of traps to be fished in an area that would be defined. They would be allowed to use those traps over a particular period.

The equipment they use would have to be equipped similarly to the commercial traps. In other words, in the traps there have to be escape mechanisms and all the other elements we require for conservation and good management. But the band would be given an authorization to use these traps, and it would be, as I say, for a particular area and for a particular period.

In the example I used, this one area, they were given the opportunity, in a very large band of people, I might add, with a large population...they were allowed to use 2,000 traps, whereas in the same area the commercial fishermen collectively have a total of 400,000 traps fishing in the area, but for a restricted, shorter time.

Mr. Bryon Wilfert: For my own education, then, we're talking about the fact that that's one area of difference. Are there other areas of differences or similarities as between commercial licences and—

Mr. Pat Chamut: I can ask my colleague, Mr. Jones, who is more intimately involved...he's the one who actually has to manage and regulate this area, so I'm sure he can provide you with the details.

Mr. Bryon Wilfert: That would lead into my second question. Outside of the restricted period for commercial fishermen, what are the criteria used to extend the period for aboriginals?

Mr. Jim Jones (Regional Director, Fisheries Management, Maritimes Region (Gulf Fishery), Department of Fisheries and Oceans): I could try to elaborate a bit on what Mr. Chamut has said. Perhaps there has been a slight misunderstanding of the context of management.

We have set basic conservation rules in place, for example for the lobster fishery, which dictate the size of the lobsters you can take, the variety, and the kinds of traps to be used. Then there are a series of other management rules which govern the fishery for proper conduct and good management.

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I'm sure you've probably heard that a lot of commercial fishermen will say, for example, the season is a conservation requirement. That's not necessarily so. For example, in the southern Gulf of St. Lawrence, which is the area I manage, the lobster season begins May 1 and continues until the end of June, when normally the onset of the moulting process comes in. There are arguments that go back and forth as to whether that process is a conservation requirement, but the difficulty is arguing that the eight-week period after the start date of May 1 is an absolute conservation requirement. It would be very difficult to argue, if you started on April 15 as opposed to May 1, that there's a conservation argument, especially when in a particular area anywhere between 300,000 to 400,000 traps are being fished commercially.

Often the seasons are developed over time for proper management purposes. For the food, social, and ceremonial fisheries, of which many of the aboriginal communities partake, through most of our agreements a number of traps are identified that can be fished. They must be tagged and meet all of the proper requirements of our conservation rules, but they can be fished over an extended period of time.

Again, the basic conservation rules apply equally to food, social, and ceremonial fisheries. They apply equally to aboriginal communities that may engage in commercial fishing or to the non-native commercial fisheries. We have cases where some of the aboriginal communities become involved in commercial lobster activities and generally the same set of rules are applied as for commercial fishermen. There are some minor exceptions in terms of who can be designated to fish and things like that.

Mr. Bryon Wilfert: For ceremonial purposes, how are those criteria established and how do you establish a figure outside of the normal period you were talking about?

Mr. Jim Jones: We have had over the last six years a series of negotiations and discussions with bands. In some cases we've arrived at a number of traps that the community would be permitted to fish, depending upon the size of the community.

[Translation]

The Chairman: Thank you. There are no other questions? Thank you very much. Just to finish off, Mr. Chamut and Mr. Jones, I have two short questions.

Could the Department inform committee members about the current problem with the commercial shrimp fishery that Inuit of Labrador, Nunavut, the Northwest Territories and Newfoundland are carrying out in the Atlantic? The Department could supply us with maps of the fishing zones for shrimp on the east coast. We would also appreciate receiving a chart showing the cost of fishing licences. The shrimp fishery is important to the Inuit. Costs have skyrocketed between 1990 and the present. Here in Ottawa, a loaf of fresh bread costs $1.12, whereas in Northern Quebec and the Northwest Territories, it costs $3, $3,20 or even $3,40. Gasoline is just the same; it is three or four times more expensive.

I am concerned about the big Japanese fishing vessels and the big corporations that the Inuit commercial fishers are confronted with. The Inuit are permanent residents in the North. This issue always comes up when we have discussions with our Inuit friends from Makivik, the Northwest Territories and everywhere in northern Canada. We must find out why the cost of fishing licenses has risen so sharply. We would appreciate you providing us with this information in writing.

[English]

Mr. Pat Chamut: I will try to answer your question. I'm not sure whether I can say an awful lot more than what I said earlier in response to your first intervention.

At the present time we have a total of 17 permanent licence holders that are authorized to fish for northern shrimp. Those licence holders represent individuals or corporations from various parts of Atlantic Canada. There are a number of licences held in Newfoundland. Some licences are held by interests in Labrador, as well as two or three in northern Quebec. I'm sorry I don't recall the absolute breakdown, but I know there is a distribution of those licences among various groups.

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Those licences in the past have harvested approximately 2,000 tonnes of shrimp per licence. With the increase in northern shrimp, a slight increase in quota has been assigned to these 17 licence holders.

Decisions were made in 1997 to also allocate some of the northern shrimp quota, given its large increase in abundance, to residents in Newfoundland, Labrador, and elsewhere. Again, if the costs of the licences are increasing, I think it's a reflection of the fact that the value of the fishery has increased significantly.

If there's something I've missed or can add, I'd be happy to do so, but I don't think there's an awful lot more I can tell you at this point about the question you've raised.

[Translation]

The Chairman: I would really like your department to give us that information in writing. In my opinion, there is a big difference between the Inuit who live in the North and the big multinationals. That's what important. We would also like to receive a chart with a complete breakdown of costs from 1990 to the present day. That information will be very useful to us. This is a difficult situation for residents of the North who live in Inuit communities. Fishing means their survival, and now they have to pay a fortune to be able to go out and fish. Yet that is their tradition. We would like to know what's going on. The situation has to be solved as quickly as possible. We would like to receive that information in writing, Mr. Chamut.

Thank you very much. Are there any other questions?

The meeting is adjourned.