FISH Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 17, 1998

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[English]

The Chairman (Mr. Charles Hubbard (Miramichi, Lib.)): First of all, I'd like to say to the committee that following the judgment on the Nunavut question we thought today we should hear from the Nunavut Wildlife Management Board. We'd like to welcome Michael d'Eça here to our meeting.

Nancy, before we get into finishing up that report, I think it would be worth while for us to have a presentation on the situation in Nunavut.

Michael, could you keep your presentation to 15 or 20 minutes, at the most? That will give committee members some opportunity to ask questions.

Some members of the committee haven't been up to Nunavut—

Mr. Wayne Easter (Malpeque, Lib.): I was there.

The Chairman: —so maybe you could very briefly outline what's happening there, especially in terms of the fisheries.

Welcome to our committee. Others will be joining us. We have about an hour to spend on your presentation and the questions that come from it.

Mr. Michael d'Eça (Nunavut Wildlife Management Board): Thank you, Mr. Chairman. I will try to keep my remarks to about 20 minutes or so.

As you mentioned, last April many of the members of the committee came to Iqaluit in Nunavut in receive submissions from the Nunavut Wildlife Management Board, as well as a number of other bodies, regarding several northern fisheries issues.

Today I will first of all summarize the NWMB's position on turbot allocations within the Davis Strait, which is that area directly adjacent to Nunavut. I don't have a map here, but directly to the west between Canada and Greenland is an area known as the Davis Strait. That is the fishery area we're talking about.

I will try to provide you with an update on what has taken place during the intervening seven months, from last April until today, and in particular, an explanation of the recent Federal Court of Appeal judgment that concerns an April 1997 decision by the Minister of Fisheries and Oceans.

I'd also like to briefly talk about the minister's 1998 turbot decision, because that came out after the hearings in Iqaluit. I will try to fill you in a little bit on the history of the turbot fishery, without going into great detail.

As you may already be aware, long before the southern cod stocks vanished and the southern fishers turned toward the north, Inuit began to develop a winter turbot fishery in the Cumberland Sound area of Baffin Island. That's about one-third of the way up Baffin Island near the community of Pangnirtung. Their methods were necessarily simple and modest since they were poor and had little access to money, investment or assistance. Nevertheless, they did succeed commercially at that fishery and it continues to this day. Given the severity of the Arctic winter and the fact that they started with practically nothing, it's a tribute to the Inuit—to their hardiness and their resourcefulness—that they've been able to maintain for 12 seasons a viable commercial winter turbot fishery.

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But they did realize early on that the winter fishery was severely limited. Because of the weather and the methods of fishing, they just couldn't catch that many fish. Meanwhile there's a substantial resource adjacent to Nunavut. They knew they'd have to develop a summer fishery in the waters of the Davis Strait. The challenges were tremendous, but Inuit, living in the climate they do and having survived there so long, are used to challenges. They were quite confident of success.

By 1990, the Department of Fisheries and Oceans had instituted a development program known as the underutilized species groundfish program. It was part of a five-year, $584 million Atlantic fisheries adjustment program. Inuit had high hopes that this developmental program would permit and assist them to develop the turbot fishery in those Davis Strait waters directly adjacent to Baffin Island.

It turned out, however, that the adjustment program, even as it applied to the turbot stocks beside Nunavut, was essentially designed to assist southern fishing enterprises. Except for the participation of one Inuit company in a joint venture arrangement in 1991, the minister rejected repeated requests by Nunavut Inuit companies prior to 1993 to participate in that developmental fishery. By then, three or so years into the process, the pattern was set. Fishers and fishing enterprises based in the south qualified to receive most of the allocations. Adjacent Nunavut fishers were relegated to the margins of the fishery.

In the five years since then, this marginalization of Inuit has been very effectively used as a shield by the department to protect the status quo. After all, they say, others developed the fishery and it would be unfair to take from them what they have earned. So with each passing year, the past refusal to provide Inuit with greater access to the only groundfish fishery adjacent to Nunavut is used more persuasively to ensure Inuit do not receive greater access to that fishery in the future.

I'll just add that the minister actually visited Nunavut last week. He had a meeting with the NWMB and GNWT officials. That was on the morning of November 10, a week ago today. When it was put to the minister that this developmental program for the most part excluded or at least severely restricted Inuit even from access to their own adjacent turbot resource, he responded by indicating that such programs were most likely designed to assist the southern Atlantic fishers affected by the collapse of the cod stocks. That's certainly how it looks from the evidence.

A year or so later, in 1994-95, the Department of Fisheries and Oceans instituted a multi-million dollar allocation transfer program as part of its aboriginal fisheries strategy. This program was designed to facilitate the voluntary retirement of commercial fishing licences and transfer those licences to eligible aboriginal groups.

Again, Inuit had high hopes that this program might assist them in their efforts to develop an Inuit turbot fishery. Once more their hopes were dashed. This time it was because they were not eligible to participate in the program. The aboriginal fisheries strategy does not apply where a land claim agreement is in place. Presumably this is because the regime set out in the land claim already puts in place a more effective and comprehensive program than that offered by the strategy.

I'd like to turn for a few moments to the Nunavut Land Claims Agreement. I'm not going to repeat today in detail the story of Nunavut's efforts to use its land claim to help develop its adjacent turbot fishery. You can find that story in much more greater detail in the NWMB's submissions to you on April 29 of this year. Suffice it to say that five years into the implementation of the land claim, the advice and recommendations of the Nunavut Wildlife Management Board with respect to increasing Nunavut's share of its adjacent turbot fishery have been almost entirely rejected. Its advice and recommendations with respect to providing Nunavut fishers with two licences equivalent to those held by southern fishers have been completely rejected.

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In addition, the main land claim provision dealing with access to commercial fisheries, section 15.3.7, has been interpreted by the minister as applying only in a situation where there are persons not previously holding licences entering the fishery for the first time. In the case of the Davis Strait turbot fishery, that interpretation renders this section of the land claim practically meaningless. Clearly, everyone who could ever realistically enter this fishery is already entitled to participate in it.

The powerful foreign charter—now company allocation—companies are firmly entrenched. Although a mere handful of fishers actually consider it worth their while to travel north and prosecute the fishery, the thousands upon thousands of other southern fishers holding the appropriate licences ensure that an inexhaustible supply of replacement fishers is available should anyone decide to leave the fishery.

So we have section 15.3.7 of the land claim protected by the Constitution, the supreme law of Canada, and arrived at in exchange for the surrender of aboriginal rights held for thousands of years. That section is really of no use to Nunavut Inuit in the effort to increase their share beyond one-quarter—because that's what their share is—of the only groundfish resource adjacent to Nunavut. There are no other groundfish resources in the Davis Strait, as opposed to farther south where there are a number of groundfish resources. The NWMB's efforts have provided practically the same results.

As mentioned earlier, Nunavut Inuit were never able to equally participate in the developmental program that got the fishery going. They've been locked out of the aboriginal fisheries strategy because they enjoy the protection and benefits of a land claims agreement. Of course, since others developed this fishery, it would be unfair to require any of their share to be transferred to Nunavut Inuit, so they're stymied anywhere they turn.

What about the situation in the rest of the Atlantic groundfish fishery? Again, the board has on many occasions, and certainly before this committee, set out in detail its understanding of the role that adjacency plays in the rest of the fishery. It's an undisputed fact that, as a rule, the fishers of a province adjacent to a fishing area are allocated the majority share of the groundfish resource. That majority is almost without exception well over 75% of the resource, and often over 80% and even 90%.

It's also an undisputed fact the Atlantic groundfish management plan explicitly acknowledges the importance of adjacency to the resource in making allocations.

Finally, it's an undisputed fact that the department, in 1997, publicly defined the principle of adjacency, and I quote:

—the principle that those who reside next to the resource or have traditionally fished in those waters should have priority access to it. This principle is used throughout the Canadian fisheries and is recognized internationally.

Despite all those facts, the department insists it is wrong to conclude that the fishers of a province adjacent to a fishing area are allocated the majority of the adjacent groundfish resource because of the application of the principle of adjacency. It maintains that a host of other factors have a profound effect on licence allocations.

To the people of Nunavut, the result of whatever factors are applied is crystal clear. Everywhere in the Atlantic groundfish fishery except Nunavut—and perhaps Labrador, as I'm sure Mr. O'Brien would point out if he were here, although even Labrador is part of the province of Newfoundland—the adjacent province's fishers have priority access to the adjacent groundfish resource.

The department's arguments to explain away the profound connection between adjacency and priority access simply don't make sense. They are like the arguments of an employer who ends up hiring only people living directly beside each of his factories, except for one. When those living adjacent to that factory point out the otherwise universal connection between adjacency and being hired, the employer explains they're mistaken. In fact, he says a host of other factors had a profound effect on his hiring process. Such an explanation might possibly seem convincing to the employer but not to anyone else, and certainly not to the unemployed workers.

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I'd like to turn briefly to the matter of access to non-adjacent resources. As with the turbot fishery, Nunavut is allocated a disproportionately small amount of both its adjacent shrimp stocks and the Canadian total allowable catch, known as the TAC, for shrimp. However, in contrast to Nunavut's complete lack of access to non-adjacent turbot resources, Nunavut enterprises do enjoy shared access to southern shrimp fishing areas. The significance of having access to both northern and southern stocks of shrimp is enormous. It allows Nunavut and other Canadian shrimp fishing enterprises to operate practically year-round. It therefore permits them to compete effectively in world markets and to operate in total economic self-sufficiency.

As I've already mentioned, in the Davis Strait, Nunavut fishers must share the adjacent turbot resource with southern fishers. In fact the southern fishers annually take three-quarters of Nunavut's adjacent turbot. As in the shrimp fishery, those southern fishers enjoy that all-important access to both northern and southern stocks, thus extending their seasons tremendously and helping to ensure economic viability and self-sufficiency.

The Nunavut turbot fishers, on the other hand, suffer the debilitating dual handicap of having to fish a small allocation in only one area during a very short season of approximately four months. What they desperately need are appropriate groundfish licences to allow them the opportunity to catch more fish, and to balance their fishing plan in both adjacent and non-adjacent waters throughout the year. Without those licences, Nunavut enterprises will continue to struggle and will simply not be able to achieve the economic self-sufficiency necessary to compete effectively in world markets.

I'd now like to take just a few moments to tell you about the 1998 turbot allocations for the Davis Strait. On June 9 of this year the minister announced the 1998 allocations. Contrary once again to the advice of the NWMB, despite section 15.3.7 of the land claim, despite stated government policy regarding adjacency, and despite the department's practice throughout the rest of the Atlantic groundfish fishery, he decided that not a single fish more would be allocated to Nunavut in 1998 than in 1996 or 1997.

Furthermore, he decided this arrangement would remain in place for five years, until the end of the fishing season in 2002. The minister claimed “This approach should provide all participants with a greater degree of certainty to make business decisions”. As he has always done, he refused to grant the NWMB's request for two groundfish licences for Nunavut fishers that are no more restrictive as to area, species, season or year than the 5,275 licences granted to southern fishers, allowing them to fish in the waters adjacent to Nunavut as well as their own.

At the same time, however, the minister appeared to offer Nunavut hope for change. As part of his decision, he decided that Nunavut would receive 50% of any increase above the current Canadian quota level for the Davis Strait of 5,500 tonnes during this five-year period. The problem with such an offer is that an increase in the Canadian turbot quota in the Davis Strait during the next five years has essentially no chance of happening.

Having been informed by the minister on May 11, about a month before his decision, that his intention was for 50% of any increase to go to Nunavut, the NWMB provided the following five-point reply on May 22:

(i) Greenland has provided no indication whatsoever of any intention to consider reducing its share of the TAC. In fact, this very morning the NWMB attended the Canada-Greenland Bilateral Fisheries Consultations in Ottawa, and asked the Greenland delegation whether there was any possibility, over the next five years, of Greenland reducing its 50% share of the 11,000-tonne TAC in favour of Canada.

The answer from the head of the delegation, Mr. Peter Munk Pedersen, was unequivocal: Greenland has no desire or intention to reduce its share, which continues to be fully allocated by the Greenland Government.

(ii) You [the minister] clearly confirm at the top of page 2 of your letter [dated May 11, 1998] that “Greenland has indicated its intention to claim 5,500 tonnes of the TAC [for 1998]—”

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(iii) The Department's Assistant Deputy Minister, a little over a year ago,

—this was in 1997—

wrote to your predecessor: “Greenland has advised us that they intend to set a quota in Divisions 1BCDEF”

—this is the Greenland section of the fishery—

at 5,500t as they have always assumed 50% of the TAC in the past.”

(iv) The Department's scientific advice has been clear and consistent, and it would be unrealistic to expect any change:

—this is a quote from the department's scientist—

“The TAC in 1997 should not exceed 11,000t for Sub-Area 0 + Divisions 1BCDEF.”

(v) The FRCC's advice has been equally clear, though more conservative: “The 1998 TAC for Greenland halibut in 0B - 1B-F [should] be set below 11,000t.”

The NWMB concluded this analysis by saying:

A proposal that Nunavut receive 50% of an increase that has no reasonable chance of taking place is, I'm afraid, the same as being offered half of someone's potential lottery proceeds—all that remains is to beat the overwhelming odds and win. It is simply not anything to rely upon or to plan for. It is more in the realm of fantasy, of wishful thinking. How could it possibly provide Nunavut fishers with “a degree of certainty to make business decisions”?

Faced with that decision by the minister that essentially guarantees not even the slightest change in allocations to Nunavut for the next five years and therefore permits those who have been developing the fishery to continue to do so for another half decade, thus strengthening the status quo arguments of the department, Nunavut Tunngavik Incorporated, known as NTI, which is the party to the land claim that represents Inuit, once again turned to the courts. Within weeks of the minister's decision, they filed an application for a judicial review of that decision within the Federal Court. I expect the court will hear the matter some time this spring.

Why, one might ask, take the matter to court? The answer in my mind is another question: what other option is available? Reliance upon the provisions of the land claim have proven fruitless. The advice of the NWMB, at least with respect to turbot allocations and licences, has never been followed. Meetings, letters, and discussions have had no effect.

In terms of political pressure, Nunavut has just one seat in the House of Commons. Even if it is occupied by a tireless member with a very profound commitment to her constituency, in my view, despite the expense and uncertainty of placing such matters before the courts, there is no other realistic option available, especially considering that time is not on Nunavut's side. The longer it remains marginalized in its own adjacent fishery, the more likely its arguments for greater inclusion will be ignored.

There's the matter of the Federal Court of Appeal's decision concerning the appeal of the decision of Mr. Justice Campbell. The original decision was by Minister Mifflin in April 1997. To recap this, he raised the TAC from 5,500 tonnes to 6,600 tonnes in Davis Strait, contrary to all advice from the NWMB, his own scientists, and the FRCC. He raised it by 1,100 tonnes. Of that 1,100 tonnes, he gave 100 tonnes to Nunavut, lowering their proportionate share from 27% to 24% of the resource.

NTI, the body that represents Inuit, had the decision judicially reviewed. Justice Campbell came out with a decision in July 1997 that was very favourable to Nunavut and Inuit. The Department of Fisheries and Oceans appealed the decision, which is what I want to talk to you about now. This concerns the judgment of the Federal Court of Appeal last July with respect to the trial division's decision concerning Minister Mifflin's original turbot decision in 1997 April.

So in July 1997, at the trial division level of the Federal Court, Justice Campbell made several findings. All of them were favourable to Nunavut. In July of this year, the Federal Court of Appeal examined those findings and found them to be in error. However, it did uphold his judgment that the April 1997 decision of the DFO minister was unlawful.

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In a nutshell, then, the Federal Court of Appeal overturned the reasons for judgment but dismissed DFO's appeal. Therefore, NTI technically won the appeal.

The court made a number of findings in place of those of Mr. Justice Campbell. Several had to do with the minister's relationship with the NWMB. I can certainly go into them should you wish that, but I believe they're peripheral to the central matter of turbot allocations.

The heart of the decision has to do with the court's understanding of that section that I mentioned a number of times, section 15.3.7 of the claim. It's the main land claim provision dealing with Nunavut access to adjacent commercial fisheries.

The court made several related findings, but I'd like to concentrate on the two most important ones.

First, they said the parties to the land claim intended to establish a principle of equity, which is a principle of fairness, not one of priority, in the distribution of commercial fishing licenses within what's known as zones I and II—for our purposes, the Davis Strait area.

The second point is that in the absence of explanations or reasons from the minister for his decision, because he never actually explained it, the end result for final distribution, along with the available evidence that was presented to the court, led the court to conclude the minister either did not give special consideration to the adjacent sea in economic dependence principles, or he misinterpreted them. In either case his decision was unlawful.

In my view, the difference between the judgments of the Federal Court of Appeal and of Justice Campbell can be expressed in just two sentences. Justice Campbell essentially decided the principle of priority for Nunavut fishers must govern the allocation of commercial fishing licenses in the Davis Strait turbot fishery.

The Federal Court of Appeal, on the other hand, decided the principle of equity must govern such allocations. And equity, as I said earlier, means fairness.

So clearly the Federal Court of Appeal lowered the section 15.3.7 standard established by Justice Campbell. However, I do know that during the twelve months—two ministerial decisions and two fishing seasons—that Justice Campbell's decision was in effect, the Department of Fisheries and Oceans managed to prevent Nunavut from harvesting even one fish more than it harvested in 1996.

So the question arises, as a result of the decision of the Federal Court of Appeal, must Nunavut and those who have thus far supported its position lower their expectations for access by Nunavut fishers to Nunavut's adjacent commercial turbot fishery?

That depends on what principle Nunavut's expectations are based upon. Is it the principle of priority or the principle or fairness? Recall that Nunavut fishers have been trying to access a much greater share of Nunavut's adjacent resource since the offshore turbot fishery began to be developed by Canadian fishers around the year 1990. In addition, from its inception until the present, the NWMB has consistently and vigorously called upon the minister to increase Nunavut's share of the Davis Strait turbot fishery directly adjacent to Baffin Island.

Although Justice Campbell's ruling of priority consideration was certainly relied upon in 1997 and 1998, without any results, it was a rather late addition to Nunavut's arguments. Those arguments had been remarkably consistent for many years.

For instance, on June 21, 1994, prior to the 1994 turbot allocations, and again on July 6 of that year, the president of NTI wrote to the minister urging him “to allocate turbot quotas on a `fair and equitable basis' in recognition of the provisions of the Nunavut Agreement and the principles stated therein”.

Two years later, on March 14, 1996 the NWMB wrote to the minister and stated, in part: “Only by ensuring that a fair and equitable portion of the TAC will go to Nunavut interests can we enable a fully Canadianized fishery to develop here”. In that letter, the NWMB was recommending a 1996 allocation of 3,000 tonnes in the Davis Strait, which translates to about 54% of the TAC, with a further allocation in the sub-areas 2 and 3 of 2,000 tonnes. So one year later, at the same time as Justice Campbell's decision was handed down, the NWMB became aware of the “Average Provincial Shares of Atlantic Groundfish Resources” summary paper, which was tabled with the committee in April.

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The Chairman: Could you summarize in just a minute? I think we've allocated at least 20 minutes to your presentation, and we're getting over, and there won't be any time for questions. So perhaps you could summarize.

Mr. Michael d'Eça: Let me summarize in this way, and this will only take a couple of minutes. I'll put a question to the committee members before you provide your questions to me.

Think of your own region and your own province. Imagine it's the poorest place in all of Canada. Imagine it has the highest unemployment in all of Canada. Imagine that in the waters adjacent to it, there's just one single groundfish resource. Imagine that in all other regions there are a number of adjacent groundfish resources, and the fishers from those regions have almost exclusive access to them.

Imagine that fishers from 2,000 kilometres away are also provided almost exclusive access to a government program to develop your only groundfish fishery, while your fisheries are almost all found not to meet the program's criteria. Imagine that three-quarters of your only adjacent groundfish fishery is then fished year after year after year by those fishers from far away.

Imagine that each time they ask, the fishers of your region are told by government that they can't have a greater share of the fishery because they didn't develop it and it would be unfair to take away any of the share from those who did develop it. Imagine, also, that your region's fishers are forbidden to fish at all in the other fishers' regions.

Imagine that your region negotiated a constitutionally protected agreement with government, guaranteeing that the fishers of your regions would be treated fairly in the distribution of commercial licences in your adjacent fisheries.

Finally, imagine that five years after signing such an agreement, in the year 1998, one company, also located more than 2,000 kilometres away from your adjacent marine area, continues to be allocated 400 tonnes more in your adjacent waters than all of your region's fishers combined.

So here's the question I want you to ask yourselves: is the principle of priority being applied here, and for whose benefit? I ask you to ask also the question: is this a fair situation?

Thank you for taking the time to listen. I will certainly make available to the clerk a copy of my remarks, and if you have any questions, I will be happy to try to answer them.

The Chairman: Thank you, Mr. d'Eça.

For your information, we are preparing a report on Nunavut—with that, of course, a reminder to members that we won't be mentioning that report until we go in camera.

There are probably two things with this. I would like it, first of all, if we could agree to five minutes each in our rounds, because the time is a bit short—and Gary, I'll let you think that through for a minute. Secondly, generally I would like to know your position in terms of this wildlife management board, and I think all members would like to have some idea in terms of the number of Inuit fishermen you speak of and the value of this resource in terms not only of employment but also of how those fish are processed and the markets.

Perhaps you could answer that very briefly. Are we dealing with boats that are manned and captained by Inuit fishermen, or is it by management groups that have hired others to do the fishery? I think this is something that would be very good to explain to our committee before we start our round of questioning.

Mr. Michael d'Eça: To answer your first question on my relationship with the NWMB, if I understand you correctly, I am the legal adviser to the Nunavut Wildlife Management Board and have been for a number of years.

The board is a management agency dealing with really most matters that have to do with wildlife—setting quotas, allocations, and so on. That's within the Nunavut settlement area, which goes out to the 12-mile mark, the territorial sea mark adjacent to Nunavut. Beyond that, the NWMB provides advice to the minister, and advice only, with respect to such matters as what quotas should be, what allocations should be, and so on.

In terms of Inuit and the actual fishing enterprise, there is a fish plant in Pangnirtung, as I mentioned, in the Cumberland Sound area, which processes the turbot. I don't have the numbers of people employed at that fish plant—perhaps Nancy would know.

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Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): It ranges around 50 to 52.

Mr. Michael d'Eça: As for the fishing itself, Nunavut is in a kind of catch-22 situation. It has no vessels itself. It can't afford those vessels for two reasons. Its allocation is much too small, so economically they just can't invest in the vessels that are necessary. Secondly, their fishing season is so short because they're confined to just the Davis Strait. That combination of factors does not permit them to buy their own vessels. They lease vessels. Over the last few years they have been Canadian vessels. Some of the crew who work on those ships are Inuit, but some are not.

The Chairman: You're presenting an argument here about economic activity, but I haven't heard a whole lot yet about economic activity. I've heard that 50 are working. How many people are working on these boats? Is it really providing employment? That's what we're asking.

Mr. Michael d'Eça: It's not providing much employment, and that's the very point the NWMB is making. We can't come to you saying that hundreds of people are working on the boats, that hundreds of people are in plants and we're building another plant, and that there's always development going on, because they have been handicapped by the situation I described. They couldn't get in to help develop a fishery. They wanted to; they put forward plans to the minister setting out what they would do, but they were turned down.

The Chairman: Thank you, Mr. d'Eça.

John.

Mr. John Cummins (Delta—South Richmond, Ref.): I think the chairman certainly initiated a reasonable line of questioning, but I'm going to skip that for a minute, and maybe somebody else will bring it up.

I'd like to get back to some comments you made when you were last before the committee in 1996. I want to try to clarify in my own mind just where you are now with regard to the agreement and the rights you have under the agreement, and certainly with reference to the court case this summer.

When you were here before, you said:

The agreement clearly states that subject to section 5.7.18, all Inuit have the free and unrestricted right of access for the purpose of harvesting to all lands, water and marine areas within the Nunavut settlement area.

Then you go to section 5.7.18 and it gives the restrictions upon that. It's very clear it's protected within the Constitution, and we all have to follow that.

What point were you trying to make? Could you just clarify what you were saying with that statement? How does that relate to the appeal court decision of last summer?

Mr. Michael d'Eça: I hope there was more to my statement than that, and I'll certainly tell you what my understanding is today. I think it's very clear and uncontroversial.

Inuit have certain harvesting rights under the land claim. So if there are no conservation concerns, pursuant to the land claim—and I'm not talking about commercial harvesting—they can harvest up to the full level of their economic, social and cultural needs. However, the land claim sets out a management regime that fetters that overall right of access. Essentially the management regime has the NWMB, which is made up of both Inuit and government appointees, looking at all the facts and deciding on very specific quotas for the harvesting of polar bears, for example. It sets quotas for the harvesting of turbot within the Nunavut settlement area, and they have to be followed.

Those decisions by the NWMB are then reviewed by the minister. The NWMB, to give you an example, may decide that in this region of Nunavut 10 polar bears may be harvested in 1998. It provides that decision to the minister—in this case it would actually be the GNWT minister—who can accept, reject or vary the decision. There's a bit of a play back and forth. If the minister rejects it, it goes back to the NWMB. They have to consider his reasons and make a final decision. Then it goes back to the minister and he can accept, reject or vary it.

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So you have to see the overall context. Inuit have this right when there are no conservation concerns or quotas in place, which is relatively rare. The NWMB is the body that, again subject to the minister's review, makes the decisions that put other restrictions on harvesting, such as the season in which you can harvest, whether it can be males or females, and what age. All those considerations are decided by the NWMB, subject to the minister's review.

Mr. John Cummins: The motions judge, in the original trial when the appeal was heard last summer, said the minister ought to follow the recommendations of the NWMB. What's the status of that now? Is he required to follow the directions of the NWMB?

Mr. Michael d'Eça: To tell you the truth, although it was a very favourable judgment, I don't think it was quite that favourable. I don't think he actually said he is required to follow the recommendations.

Mr. John Cummins: Justice Campbell gave the distinct impression that was the case.

Mr. Michael d'Eça: That may be a reading, and I think the Federal Court of Appeal would tend to agree with you. They were quite critical of the judge and thought he went too far in his exuberance, in his outrage over the facts of the situation that faces Nunavut.

However, it is crystal clear and not in any dispute that beyond the Nunavut settlement area, beyond for our purposes the 12-mile territorial sea area, the NWMB may provide advice and recommendations to the minister. The minister must consider them. The question is what's an appropriate consideration of advice and recommendations? You can pay lip service to them or you can jump through all kinds of hoops and so on. The hoop he said the minister had to jump through was this: he said if he were going to reject NWMB advice, he had to provide reasons in writing to the board.

Even in that statement he clearly contemplated that the minister might not follow the recommendations of the NWMB. His point in the judgment was that there was no evidence or indication that he actually considered the advice of the NWMB. He took it in and paid lip service. I think the judgment said—I can't quite recall the direct quote—the minister heard their recommendations but didn't listen to them.

Mr. John Cummins: There are a couple of issues here. The judgment says the minister is not required, under article 15 of the agreement, to provide reasons to the NWMB should he decide not to follow its views, but you're telling me he has to.

Mr. Michael d'Eça: No, that was the judgment of Justice Campbell. The Federal Court of Appeal took much the same view as you have and were very critical of him. They said first of all he considered the recommendations of the NWMB and rejected them, and secondly he is not required to provide reasons to the NWMB.

Mr. John Cummins: The appeal court said he was not required—

Mr. Michael d'Eça: That was the appeal court decision, so that's the law; that's what applies.

Mr. John Cummins: You said beyond the settlement area, beyond 12 miles, he had to consider the advice of the NWMB. But within the 12 miles who's in charge?

Mr. Michael d'Eça: Within the 12 miles the NWMB is the main agency that deals with it.

I'll give you the exact situation. It decided that 1,000 metric tonnes was the quota within the 12-mile territorial area, the Nunavut settlement area. That decision by the board then goes to the minister and the minister reviews it. His choices are, first of all, to accept or reject it. If he rejects it, it goes back to the board. The board makes a final decision and the minister can accept, reject or vary it.

In this case the minister has always accepted the board's decision, as the minister generally does within the Nunavut settlement area. In most matters, I think the exception being third-party commercial interests that have certain political ramifications and economic ramifications, the minister accepts the decisions of the board and often accepts its advice.

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But to summarize, within the Nunavut settlement area, up to the 12-mile mark, the NWMB makes the decision, but that is subject to review by the minister.

Mr. John Cummins: How is that decision arrived at? We assume the department, when it makes these kinds of decisions outside the 12-mile area, is getting the advice of its scientists and the agreement of our international competitors, or partners, or whatever you want to call them, in the area. But within the 12 miles, when the board makes its decisions, who is it consulting with and how is it coordinating its view of the world, the sea world, with the views of others?

Mr. Michael d'Eça: That's a very good question.

The NWMB is what's known as a co-management body, so as I said, it's made up of Inuit and government appointees who then work independently within that body. It's an independent administrative tribunal, but it has a partnership arrangement with the Inuit, with the public of Nunavut and with government, and it works closely with all of them. So it has a lot of interaction with the government, with government scientists, with DFO personnel in Nunavut and so on, and has access to the FRCC reports, to DFO scientists' reports and so on. It also, as I say, consults with the Inuit.

It looks at all of the available evidence. It melds its decision in with the overall decision, because the minister sets the overall total allowable cash. Now it's at 5,500 tonnes. But within that, the Nunavut settlement area forms a portion. So it looks at everything, including the 5,500-tonne TAC, and makes its decision, sends that to the minister with reasons explaining how they made the decision, and then the minister, as I say, accepts, rejects or varies the NWMB's—

The Chairman: Who's funding the board and how much does it cost?

Mr. John Cummins: Could I just ask one quick question?

The Chairman: Who's funding it? If I get a one-word answer, I'll take it.

Mr. John Cummins: Who's funding it and how much does it cost?

Mr. Michael d'Eça: Government.

The Chairman: Is that the federal government?

Mr. Michael d'Eça: Yes. I can't quite do the last answer in one word, but it's several million dollars per year. However, I'd point out that the NWMB has jurisdiction over 2 million square kilometres—over 40% of Canada's ocean coastline.

The Chairman: Mr. Rocheleau.

[Translation]

Mr. Yves Rocheleau (Trois-Rivières, BQ): When the Committee travelled to Nunavut last spring, and I had the privilege of being with them, we were told about two phenomenons that struck me, and I would like to have your thoughts and opinion on the matter.

First, the fact that even if there is no industrial activity or polluting companies in the beautiful Territory of Nunavut, some fishing resources are contaminated. Rumour has it that the DEW Line activities are polluting the area because the Americans left there barrels full of comtaminated substances, if I understood the interpretor correctly. Throughout the years, barrels perforated and the contaminated substances reached the shores or even the waters where barrels had been left on the ice.

I would like to know if you think that this assumption is founded and what you think of it.

Second, the phenomenon of fishing nets at the back of vessels. Huge fishing nets accidentally fall off the vessels and continue to harvest fish, thereby destroying the resource. Apparently, no tehcnological tool has been invented yet to curb that phenomenon. I would like to know the scope of that phenomenon to see if this should become a major concern for the government.

[English]

Mr. Michael d'Eça: You have two questions. The first one is whether people are right to blame the DEW line sites for the pollution that occurs within Arctic waters. I, first of all, must start by saying that it's not an area within the NWMB's direct jurisdiction, although it's concerned because that would affect wildlife and wildlife habitat. There are other organizations under the land claim that deal with such matters, but my general understanding is that, yes, the DEW line sites have been a big problem. There is extensive work going on to clean them up as we speak. But they're not the only problem.

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I don't understand exactly what the physical forces are, but the Arctic tends to be the repository for much pollution that occurs elsewhere on the planet. And it is a grave problem not only in the waters but on the land. The people there still depend very heavily upon what is known as “country food”, the eating of caribou and other wild animals. In some areas the pollution that is gathered up by these animals is frightening. So, yes, the DEW line sites contribute to a large and serious problem, but as I understand it, those sites are being cleaned up.

Your second question has to do with ghost fishing and the damage done by the nets that get away. This is a major problem that the NWMB and others have pointed out for many years to the department. I should, and happily do, report to you today that as part of the minister's 1998 decision, he made some real efforts to deal with the matter of ghost fishing. He didn't go nearly as far as the NWMB asked. One of the measures the NWMB is suggesting is that perhaps we can have nets that biodegrade at a certain point, that will just break up. You can limit the number of nets on a boat and have inspectors and so on. The minister has accepted some of those recommendations and not others.

Another point the NWMB makes is that we have to do a lot more research to see how bad this is. We have a lot of anecdotal evidence that these nets, which are huge, go on and on for a very long time ghost fishing and killing many fish and marine mammals. But we need more scientific research, and I'm not aware exactly of the minister's position on that, if he has decided. He appears, especially from the last meeting last week, to be genuinely concerned about conservation issues, and hopefully that will result in some further measures dealing with the problem of ghost fishing.

Mr. Yves Rocheleau: Merci.

The Chairman: Thank you, Mr. Rocheleau.

From the Liberal side, Nancy, do you have any questions?

Mrs. Nancy Karetak-Lindell: I just had a comment.

The Chairman: You're a hard-working member. We noticed your comments.

Mrs. Nancy Karetak-Lindell: I want to clarify a little the comment you made about employment levels. The minister went to the fisheries in Pangnirtung last week and the manager there was telling us that because of the ice conditions not being favourable for the last two years, meaning that we're not freezing up when we should be freezing up, that has limited the activity and has again brought them to a point where they have to rely a lot more on offshore fishing and other boats being asked to do the quotas, because they have not been able to get out on the sea to top up their own quota.

But even as limited as it was, they still brought in $1 million worth of revenue to the community. That's a lot of money in a small community. And they're trying to do alternatives such as shipping out some of their frozen goods by a ship that's bringing in food and coming back out empty. So they're trying to take advantage of all different opportunities, and 50 people working in a community of approximately 1,400 people, Pangnirtung, is a lot of people working.

To go back to Michael's presentation, how would you say the Federal Court of Appeal decision affects our position as far as trying to get an equitable share of the quota goes?

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Mr. Michael d'Eça: In my view, Nunavut's position is clearly that what it wants is to be treated fairly. Justice Campbell introduced the idea of priority consideration, and that was great. But, really, what Nunavut has been saying all along is look at the rest of the groundfish fishery; what's the arrangement for adjacent fishers to their resource?

Well, it turns out that 75%, 80%, or 90% of that resource goes to the adjacent fishers. Nunavut is saying, treat us fairly; treat us the same as you treat them.

That's one part of its argument. The other part of its argument is, all right, what about access to non-adjacent fishery resources?

As I say, there are 5,275 fishers. We know pretty well precisely the number of fishers who have licences that permit them to fish in the north. Only a handful go up there, which I think is also a response to your original question, Mr. Chair. I got the impression you were wanting to hear big numbers. There aren't big numbers in the Davis Strait fishery. Only a few boats go up there. But thousands upon thousands of fishers from southern Canada have the right to go there, and Nunavut is saying, give us all the right as well. It's saying, look, give us two groundfish licences; that's all we ask for, at least at this point. We want two groundfish licences, which are not any better, which don't have some priority access over anybody else. Just give us the same licence as those 5,000-odd fishers have.

To me, the fact situation is very straightforward. It's a matter of applying the principle of equity, as the Federal Court of Appeal has said, the principle of fairness. That's what Nunavut requires.

The Chairman: From the Liberal side, Wayne.

Mr. Wayne Easter: First of all, welcome.

On the Pangnirtung fishery, I was also up there on the committee, and I would certainly say one thing about that fish plant: I don't think you'll find a higher-quality plant anywhere in the country in terms of the product they put out. In part it's because of the conditions they fish in; I believe the water in which they bring in the product is actually below freezing. We were quite impressed with that particular operation.

On the numbers, tell me if these numbers are correct. If I sat here and listened to you, I would say I wonder if Fisheries is going backwards in terms of allocations. But I believe, based on what I'm told, progress is being made; progress has been made since 1992.

As I understand it, in 1992 the NWMB allocation was 1,000 tonnes of a total of 12,500 tonnes, which gave you 8% of the quota. It was changed in 1996 to 1,500 tonnes of a total quota of 5,500 tonnes, which moved you up to 27.3% of the quota.

In early 1997 Minister Mifflin increased the allocation to 6,600 tonnes, of which I believe only 10% went to Nunavut—I'm not sure on that figure. Then when Minister Anderson came in, he backed that off again to the 5,500 tonnes. As well, I believe Minister Anderson gave you exclusive access to division 0A, Baffin Island, which is 300 tonnes, the exploratory fishery there.

Are those numbers correct, and would you not agree that progress is being made? Maybe there needs to be more, but progress is being made.

Mr. Michael d'Eça: Those numbers are essentially correct, except you mentioned, or I understood you to say, when that 6,600-tonne TAC was provided, Nunavut got 10%. In fact, it got 10% of the increase—

Mr. Wayne Easter: That's what I mean.

Mr. Michael d'Eça: —which lowered its proportional share from 27% to 24%.

But you're right, and it's a matter that is often raised. I think the department has two arguments to make. That's one of them, that our percentage of the overall TAC has increased and progress is being made, and then there's the matter of who developed the fishery.

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It's true that, we'll say from the beginning of the fishery until the present, Nunavut's share has increased. But you have to look at other increases; for instance, let's say the competitive allocation. I can quote you statistics that show that the competitive allocation rose from zero tonnes to—what is it now?—I think 1,900 tonnes, 400 tonnes more— I'm not quite sure of these figures, but it's more than what Nunavut gets in about five years. That's when again the overall TAC dropped from 12,500 to 5,500. To a certain extent we get into a war of statistics.

Mr. Wayne Easter: I want to check this out further. You're saying the competitive allocation over that same period of time— I'll find out the figures, no problem, Michael. I just want to be sure I have the right body. You're saying it's the competitive allocation?

Mr. Michael d'Eça: Yes, the competitive allocation.

Mr. Wayne Easter: Yes, I can find that out.

Mr. Michael d'Eça: It rose tremendously, much higher.

But I think it's also important because the minister actually goes back further. He says, look, you started off with 100 tonnes back in the 1980s, and now you're up to 1,500 tonnes; look at that incredible increase. What that really means is that the fishery adjacent to Nunavut started out with 0.8% and 99.2% of its resource went to others. At that time, at the very beginning, there were no Canadian fishers at all; it was the Russians and other foreign countries that were fishing. It managed to work its way up, just before the land claim really took effect, to 24%. That still meant that 76% of the adjacent resource was being fished by others—by this time other Canadian fishers—and there is no precedent in any other region for anything remotely resembling that. As a matter of fact, it's the mirror image of what is everywhere else.

So 76% in 1994 was fished by other Canadian fishers, and 24% by Nunavut. In 1995 it stayed the same. In 1996, with 100 extra tonnes, it went up to 27%. In 1997 it stayed the same, although there was that little blip; with the minister's decision it actually went down. But we'll say it stayed the same with Minister Anderson's redetermination. In 1998 it stays the same; in 1999, 2000, 2001, and 2002 it stays the same. Still, in this day and age, today and for the next four years beyond this fishing season, 73% of Nunavut's only adjacent groundfish fishery is going to be fished by fishers from away.

The Chairman: Thank you, Mr. Easter.

Mr. Matthews.

Mr. Bill Matthews (Burin—St. George's, PC): I have a question on the two groundfish licences that you would like to reallocate. Is that to enable you to fish groundfish outside of your own area, to have the same rights as those who come in? Is that what I am to understand?

Mr. Michael d'Eça: Actually, could I ask you to repeat just the first part of your question?

Mr. Bill Matthews: Sure. You're requesting that two groundfish licences be allocated. My question is, would that groundfish licence provision enable your fishermen or enterprises that would have them to fish in other areas, similar to those who come in to fish? Is that what you're saying?

Mr. Michael d'Eça: That's exactly right. They would be able to go into the southern areas and compete with everybody else in the competitive fishery. So it would allow them to access their own competitive fishery in Nunavut, which they're forbidden to access. But it would also give them that all-important ability to extend their season and to extend their overall catches by being able to go down south, in exactly the same way as the southern fishers could fish adjacent to them and up in the north.

Mr. Bill Matthews: So I guess that would enable the enterprise to be viable. Is that the reason?

Mr. Michael d'Eça: Yes, it would get them on the road—the chairman was questioning on this earlier—to being able to purchase their own vessels. Without that kind of increase, they have a theoretical right to purchase vessels but a practical impossibility to do so.

Mr. Bill Matthews: Can I ask you why you are requesting only two? I just ask the question because I don't know. To me, it seems as though two groundfish licences— How many come into your area to fish?

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Mr. Michael d'Eça: Maybe 13, 14 or 15 boats will come up, and that's overall. So that's the company allocation, the competitive fishery. There are a little over a dozen or so.

Mr. Bill Matthews: Tell me what the reasoning is for requesting two, just so I know.

Mr. Michael d'Eça: I think it's an example of the reasonable and conservative mindset of Inuit. They don't think in terms like “Hey, those guys have 5,275, so let's see, we can work it out percentage-wise with our population”, and so on. They get hundreds of licences. They're not interested in that. They say “Look, let's ask for something that is realistic to expect.” So they asked for the two.

Mr. Bill Matthews: Thank you.

The Chairman: Nancy, you have a question? We're going to conclude after this, but, Nancy, I will allow you to come back again.

Mrs. Nancy Karetak-Lindell: Just one sentence. We usually just ask for what we need and never more. I think that's the same philosophy in this one.

Mr. Bill Matthews: You haven't learned that if you ask for twice as much, then you might get what you need, Nancy.

Mrs. Nancy Karetak-Lindell: That's why there are no codfish.

Mr. Wayne Easter: Those Newfoundlanders—

[Editor's Note: Inaudible]—

Mr. Bill Matthews: Oh no, that's Prince Edward Island.

Mr. Wayne Easter: You know they doubly exaggerate it for the Newfoundlanders.

The Chairman: Mr. d'Eça, I want to thank you for coming. I know we could spend a lot more time, but we do have other items on the agenda too and we have to proceed with them.

Just to conclude, as chairman, I hope you see this as economic activity that will generate jobs for the people of the area. Without that, of course, unless there's work and economic activity from it, fish in themselves don't really benefit many people. So hopefully your group will work towards getting those boats that you look for and providing our Inuit people an opportunity to go out and become fishers on the seas, as they historically have been, with the type of boats they need for this age.

Thanks for coming.

Mr. Michael d'Eça: You're very welcome. Thank you for the opportunity.

The Chairman: We'll take a five-minute break and then we'll come back and look at the Nunavut report. We'll try to conclude that this morning.

[Editor's Note: Proceedings continue in camera]