FOPO Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 26, 1999

• 0905

[English]

The Chair (Mr. Wayne Easter (Malpeque, Lib.)): I call the meeting to order.

We're continuing to review the implications of the Supreme Court decision R. v. Marshall on the implication of the management in Atlantic fisheries. We had a steering committee meeting the other day, which I'll report on at the end of the meeting. One of our witnesses has to leave at 10 o'clock, so I'll hold that in abeyance till then.

We have witnesses this morning: Wayne Wouters, deputy minister; Pat Chamut, assistant deputy minister of fisheries management; and from the Department of Justice, Clare Beckton. I believe both Wayne and Ms. Beckton have a statement to make. We'd ask you, if you could, to keep those as brief as possible, and then we'll go to questions.

Wayne.

Mr. Wayne Wouters (Deputy Minister, Department of Fisheries and Oceans): Thank you, Mr. Chairman. It's a pleasure to be here today. I also want to congratulate you on being appointed to chair of this committee. It's an important committee for Fisheries and Oceans. We worked with you as our parliamentary secretary before that and it was a pleasure to do so. I'm sure there will be productive days ahead as chair of this committee.

As you've already noted, Pat Chamut is here with me. He is the assistant deputy minister responsible for fisheries management. Clare Beckton is assistant deputy attorney general for aboriginal affairs for the Department of Justice.

I have a short presentation, and Clare has one summarizing the decision. Then we would be open for questions. I apologize, but I do have to leave at 10 o'clock. I have to attend cabinet with my minister.

Without repeating the presentation Minister Dhaliwal made last Thursday, I think it would be useful to make some opening comments on what we've been doing to address the Marshall judgment, how we are planning to proceed, and to discuss how Marshall fits into the overall context of the Atlantic fishery.

The fundamental obligation from the judgment in Marshall is to accommodate the right for aboriginal beneficiaries of the treaty to engage in commercial fishing. We intend to meet that obligation. Our challenge is to do so in a way that ensures conservation, maintains the viability of the commercial fishery, and provides fair treatment for those who depend on the fishery for their livelihood. I believe these objectives are shared by both aboriginal and non-aboriginal people.

Since the judgment we have been working on both immediate and long-term strategies to address the implementation of this decision. In the short term, the minister and the department have been working to encourage an environment that is conducive to cooperation and dialogue.

We have worked hard with aboriginal leaders and representatives of the commercial sector to lay the foundation for cooperative solutions. We've accommodated the interests of those bands that have chosen to exercise their treaty right immediately by authorizing harvest. However, communal licences have been issued stipulating conservation requirements and to ensure that proper effect is given to our obligation for an orderly, regulated fishery.

In concert with the RCMP, enforcement measures have been taken against those who have unlawfully interfered with aboriginals in the exercise of their right to fish and, on the other hand, against unauthorized or excessive fishing by aboriginals. Enforcement actions, for example, were taken late last week to ensure that the fishery is properly managed and is regulated in accordance with the licences that authorize harvest. A total of 572 unauthorized lobster traps were seized in Miramichi Bay and a further 165 traps were taken in St. Marys Bay in southwest Nova. These short-term measures have not pleased everyone, but they have been balanced and consistent with the responsibilities of this department.

Our early strategy of respecting the treaty right within a regulated framework, engaging in and encouraging dialogue, and acting, where required, to enforce regulations has led in my view to progress.

The agreement between the Annapolis Valley First Nation and the lobster fishermen in lobster fishing area 35 in the upper Bay of Fundy is an example of a cooperative solution involving the parties most affected. The more recent agreement between the Acadia Band and lobster fishermen from southwest Nova is also very encouraging.

• 0910

We have also reached general agreement on our overall long-term process. At the meeting on October 18 between Ministers Nault and Dhaliwal and the chiefs of the Atlantic Policy Congress, there was general agreement to a two-stage process that would deal immediately with the issue of access to the fishery while moving on a separate track to consider the broader and longer-term implications of the judgment.

Minister Dhaliwal appointed Mr. James MacKenzie on October 15 to be the chief federal representative to negotiate arrangements to implement the Marshall decision as it pertains to the Atlantic fishery. Mr. MacKenzie's initial responsibility is to work with aboriginal representatives on a process and parameters for the negotiation of arrangements to accommodate the treaty right to have a commercial fishery.

We will also work very closely with commercial fishing representatives. They are part of the process and need to be part of the solution.

Mr. MacKenzie met initially with a number of representatives from both first nations and commercial fishing groups. Based on those discussions, he will be proposing a structure and schedule for the subsequent steps in the process. Our objective is to have a set of fishing arrangements before the start of fishing next spring.

We are at the same time coordinating our efforts to reach agreement on fishing arrangements with the government's broader approach to implementing the court's decision. Because of the pressing need for certainty and order in the fishery, we are proceeding separately and quickly.

I want to take a few moments to explain the efforts by the department to strengthen the aboriginal participation in the fishery and to address criticism about inadequate preparation for the judgment.

Our work to augment the number of aboriginal people in the fishery started well before the judgment on September 17. In fact we began preparing for decisions like this immediately after the Sparrow decision, when we introduced fundamental changes to the management of aboriginal fisheries.

Since 1992, when the department initiated the aboriginal fisheries strategy, DFO has been working with aboriginal communities and the fishing industry to provide greater access to the commercial fishery and to build capacity for aboriginal people to have a larger role in managing and regulating their own activities.

In Atlantic Canada we provide about $5 million annually to facilitate aboriginal involvement in the management of the resource. We have substantially augmented their participation in the commercial fishery by facilitating the voluntary retirement of commercial fishing licences and the issue of licences to aboriginal groups. As well, aboriginals have been provided access to new fishing opportunities.

To date, over 200 commercial licences have been issued to aboriginal groups in Atlantic Canada. This approach is consistent with, but will need to be accelerated as a result of, the Marshall judgment.

We also maintained the lines of communications with aboriginal groups throughout the period leading up to the Supreme Court decision. It was not realistic to expect we could work out arrangements prior to the judgment, given the divergent views. It was apparent that it would not be feasible, nor would it be warranted, to heavily invest resources until we knew what the court would decide.

In hindsight, it is easy to argue that more should have been done, but it was and remains my view that to build a solution, you must understand the problem. The complexity of the judgment, which we are continuing to analyze, tends to confirm that point of view.

As well, we know that lasting solutions are best achieved through consultation and cooperation rather than through unilateral action. Moreover, we do have a legal obligation to consult with aboriginal people on issues associated with their rights.

Much as some might wish otherwise, there was not, nor is there now, a quick fix. The solution will be achieved through dialogue, negotiation, and accommodation.

Finally, let me conclude by putting Marshall into a larger context. We all recognize that the past few years have been difficult for the fishing industry, and doubly so for those who are dependent upon it for their livelihood. They have suffered from resource declines and have had to adjust to a number of reforms that have been introduced to address fundamental problems. Implementing the Marshall judgment imposes further adjustment.

• 0915

I am aware that change can be disruptive and threatening, all the more so given what is perceived as a very sudden and substantial upheaval in the fishery. But as we implement our response, which will respect the new-found treaty rights, I am confident that the adjustments required will be complementary to the policy objectives we have been pursuing.

We have been working to achieve a fishery that is environmentally sustainable, economically viable, and resilient, and operates in partnership with government. We have worked with the industry to ensure that fishing practices are sustainable and conservation is the paramount priority.

Viability is being enhanced by new licensing policy that promotes multi-licensed enterprises and by voluntary licence retirement to reduce the number of participants. We have been encouraging fishing organizations to take on a greater role in decision-making and in management of their own activities, with greater security for their share of the resource.

I believe that aboriginal people and commercial fish harvesters are seeking the same thing: the desire to share the bounty of our renewable resources, to enjoy a livelihood, to be respected, and to build a safe and prosperous community for their families. Both want to have a greater role in decision-making and taking more responsibility for their affairs. This is where this department is headed.

The addition of aboriginal people to the fishery should be seen as an economic opportunity that will provide much-needed benefits, but accommodating increased aboriginal participation does mean change and I do not want to minimize the challenge we face. It will require changes in our regulatory framework and changes to how this department exercises its responsibility. It will mean greater co-management and an increased role for fishers in decision-making. It will mean a modernization of our relationship with both the commercial fishermen and aboriginal people.

We can achieve these objectives if we focus on our common interests rather than our differences and by working together rather than at cross-purposes.

Thank you very much. If you agree, Mr. Chair, I will hand it over to Clare Beckton, who will summarize the decision.

The Chair: Thank you, Wayne. I wonder if Ms. Beckton could summarize fairly briefly. The purpose of today's meeting was to look at Mr. MacKenzie's role, at what his authority is and how he operates.

I've briefly gone through the justice department paper that outlines the court decision. Can you summarize it fairly quickly, Ms. Beckton? We know that the deputy minister has to go at 10 o'clock.

Ms. Clare Beckton (Assistant Deputy Attorney General, Aboriginal Affairs Portfolio, Department of Justice): I could summarize it in about one minute, if you like—

The Chair: Please.

Ms. Clare Beckton: —given that we've left the document with you. If you like, I could simply state that the issue before the Supreme Court was whether Mr. Marshall had an existing treaty right to fish for trading purposes, which, in the absence of any justified infringement, would exempt him from compliance with the federal fishery regulations under which he was charged.

Basically, the Supreme Court allowed the appeal from the lower court judgments, which had held he did not have the right, and they acquitted Mr. Marshall. The majority of the court found that the 1760 treaty affirms the right of the Mi'kmaq people to continue to provide for their own sustenance by taking the products of their hunting, fishing, and other gathering activities, and trading for what in 1760 was termed “necessaries”, described as equivalent to a “moderate livelihood”, but not extending to the open-ended accumulation of wealth.

This right was found to have always been subject to regulation. The court said that the rights are treaty within the meaning of section 35 of the Constitution Act of 1982 and are subject to regulations that can be justified. As an example, they said that catch limits established to accommodate the treaty right would not constitute an infringement that would have to be justified in accordance with standards developed by the court in a number of cases, including R. v. Badger.

If the committee so wishes, I can stop at that point and answer any more specific questions about the judgment per se.

The Chair: Okay. Thank you, Ms. Beckton.

Reform Party, with Mr. Cummins.

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

I found the deputy minister's comments interesting. He refuses to recognize that the policies his department is proposing here have taken the Fraser River from profitability to no fishing in 1999, as I indicated to the minister the other day. He also indicates a certain motivation on the part of the department, and I'll just review for him the Sparrow decision.

The department took the Sparrow decision to mean that it required the department to institute a commercial fishery on the Fraser River on the west coast. They set that up. They gave up 50% of the fish to the natives in some years. They failed to adequately police and monitor the fishery, only to discover in 1996 in Gladstone that a commercial fishery for natives was not an inherent right. In other words, they took us down the garden path.

• 0920

It would seem to me that in this decision, the same thing has applied. The question before us this morning is what is Mr. MacKenzie's role, and I think it is impossible to determine that unless we understand the thinking behind the department on the decision itself. To that end, when the department knew that its chief witness's testimony had been distorted by the judge who wrote the decision, why would the department fail...? Because the distortion was not a minuscule thing; it was an important thing. Why would the department not then go back to the court and ask them to clarify its decision, given this distorted interpretation by the justice?

Mr. Wayne Wouters: I guess I could make a couple of comments on that, Mr. Chairman. First, in our view, while it's a complex decision, the decision from the point of view of the right is clear: the Marshall decision gave aboriginal people the right to fish commercially. The decision said that this right was subject to regulation, that the right could be constrained. So on that basis, we proceeded to put in place interim arrangements to deal with those bands who wanted to continue to fish.

I also want to say that in our view, the long-term solution to this issue, from our experience in dealing with aboriginal people in Atlantic Canada, is to work by way of consultation and accommodation to address this right but also to address the concerns of the commercial sector, who also make a livelihood out of this fishery.

Mr. John Cummins: One of the issues the court discusses is moderate livelihood. Is it possible to determine a moderate livelihood?

Mr. Wayne Wouters: Mr. Chairman, I think the question of moderate livelihood is one that again requires dialogue and negotiation. It is one I think we need to look at in terms of the broader process. Of course the Marshall decision indicated that there were rights as applied to fishing, hunting, and gathering, and those rights will be constrained by the overall constraint of a moderate livelihood. So our view is that there's a need, as part of the broader process, to undertake discussions with the aboriginal groups in order to do that.

Mr. John Cummins: Your response is interesting, because I think it clarifies for us the fuzzy thinking that seems to characterize your department. In Gladstone, the department argued that moderate livelihood would be impossible to police. That was your argument in Gladstone. The judge in Van der Peet, Justice Lambert, said that the notion of what constitutes moderate livelihood is inherently subjective. And he went on to say that even if it could be ascertained how and, more importantly, by whom such a fluid standard could be determined, the extent to which the sale of salmon is realizing more than a moderate livelihood would be impossible to police. Indeed, commercial sale with a view to achieving excessive lifestyles is difficult to discern from the commercial sales for more modest objectives.

I think most of us agreed with that. In fact in Gladstone the court said that because it's impossible to determine a moderate livelihood, a commercial right existed, but they also said that others had a right to participate. That wasn't the case in this decision. So effectively people whose families have had 12 and 13 generations of participation in this fishery have no legal right to be there.

Your thinking is fuzzy. When it comes to moderate livelihood, I don't think you could define that. You could spend from now to the end of the next millennium trying to do it.

The Chair: Mr. Wouters.

Mr. Wayne Wouters: Mr. Chairman, I think the honourable member has certain views about the previous cases and he is interpreting those views a certain way.

Mr. John Cummins: Not me; I'm quoting.

• 0925

Mr. Wayne Wouters: All I want to comment on is that in terms of this decision and the definition of moderate livelihood, it's clear the decision says moderate livelihood should not be for the accumulation of wealth. In our view, we think there is a need to enter into a dialogue with aboriginal people and the commercial sector in terms of looking at how this right can be regulated and constrained based on the Marshall decision. That constraining factor is a moderate livelihood that shall not result in the accumulation of wealth. In our view, the approach to deal with that is through dialogue with the aboriginal leaders.

Mr. John Cummins: Well, you argued in Gladstone that moderate livelihood would be impossible to police. That's a quote. In Van der Peet, Lambert said that it's impossible to determine moderate livelihood. What insight do you now possess that's going to allow you to determine moderate livelihood?

Mr. Wayne Wouters: Mr. Chairman, may I just outline our approach again in dealing with this issue?

As we said, we are taking a two-stage approach. First, there are broader discussions in terms of many of the decisions that came down as a result of Marshall. Those broader discussions will deal with many of the questions of the right, including moderate livelihood.

In the meantime, our objective and the objective of Mr. MacKenzie and his mandate is to work out practical arrangements to provide access to aboriginal people to allow them to exercise their right in the fishery. That is our objective and that is the objective of Mr. MacKenzie. That's our approach. There are broader issues as a result of this decision. Those broader issues will be basically resolved through broader consultations. In the meantime, our objective and that of Mr. MacKenzie is to proceed forward now and arrive at practical arrangements to allow those aboriginal people to fish. Our objective is to try to do that by next spring.

Mr. John Cummins: You mention the right of aboriginal people. It's interesting that you make no mention or no recognition at all that others may have acquired rights over time. That's the problem with your attitude on this issue: that others, whose families may have participated in that fishery for 200 or 300 years and could probably rightly be said to have developed the fishery to the profitability that it now enjoys, are not recognized at all by you or the department. That's the problem.

Mr. Wayne Wouters: Mr. Chairman, I think in my opening comments I indicated that there is no quick-fix solution to this issue. This issue involves a major new entrant into the fishery, the aboriginal people of Canada, as a result of the Marshall decision. We also recognize, and I tried to be clear in my statement, that there are those who make a livelihood out of this fishery. Most of our fishery resources are fully allocated, so there is a recognition that we simply could not, today or tomorrow, simply have a regulatory regime that allows the entry of aboriginal people and at the same time addresses the concerns of the commercial sector.

This is why we need to enter into those discussions: first, to provide the right to those people; and secondly, to respect the concerns and to provide fair treatment to the commercial sector. They and their families and their families before them made a living out of this fishery. That's our objective here, and that's the objective of Mr. MacKenzie.

The Chair: Before I go to Yvan, spinning off your comments and Mr. Cummins' question, Mr. Wouters, John raised a lot of questions on moderate income, and you're saying what MacKenzie's role is, but our concern as a committee—and we've talked about this—is whether Mr. MacKenzie has the authority to make these decisions on his own. What's the involvement of the ministry, and what's the involvement of Parliament? It's a crucial issue. Can you respond to that?

Mr. Wayne Wouters: Let me first respond to the role and mandate of Mr. MacKenzie.

As I said, there are many questions involved in this decision, which will take some time to clarify and to resolve. One that was raised today was the question of moderate livelihood. Mr. MacKenzie's role is essentially to work toward some medium-term arrangements with aboriginal people and the commercial sector to provide access. That's his mandate.

Now, the question of moderate livelihood, the question of many aspects of this right, and many of the aspects of the decision we are still working out. Those will be part of a broader set of discussions. Mr. Nault, for example, is meeting with aboriginal leaders tomorrow, where he will address how to deal with the broader questions of the decision. In the meantime, the department will support Mr. MacKenzie, to arrive at some practical arrangements for next spring.

• 0930

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier (Bonaventure—Gaspé—Îles-de-la- Madeleine—Pabok, BQ): Thank you, Mr. Chairman. I would like Mr. Wouters to begin by clarifying Mr. MacKenzie's mandate and to tell us whether the list of native bands covered under the Treaty is known and whether it is an exhaustive list today.

In his press conference, Mr. Dhaliwal mentioned 35 bands. A little later, we learned that some of these 35 bands living in eastern Canada had territories, whereas others did not, and that some of the bands were not covered under the Treaty. I therefore would like to know who is going to sit at the negotiating table because it would be unfortunate to realize further down the line that one, two, three, four or five bands stood apart from the rest and that the whole process would have to begin anew.

In trying to define Mr. MacKenzie's mandate, we should know who will be sitting across from him and what will be on the table. When you talk about process, do you mean that we must work out a work schedule with Aboriginals which will settle short-term and long-term issues? This morning, I would like to focus on short-term issues because tempers are running high along the coast.

I want to know what kinds of negotiation are being held. Natives are currently trapping lobster. This is the easiest type of fishery which requires the least amount of equipment. Furthermore, mother nature is allowing us to have a fishery again this year. But we cannot forget that the Marshall decision was based on eel fishing.

I want to know how we are going to contain the brushfire. Will the Aboriginal bands who agree to sign a short-term lobster fishing agreement be held to keeping the peace during the entire negotiation process? I want to know if things are going to be settled on a case-by-case basis or not. Those were my first questions.

[English]

The Chair: Mr. Wouters.

Mr. Wayne Wouters: Mr. Chamut will answer this question.

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

The first issue that's raised is the question of who is covered by the treaty. I think it's one of the issues that demonstrates the complexity of responding to the judgment, because there are a number of issues yet to be clarified. I'd like to begin by just indicating who we believe is covered, and I'd like to identify some of the areas where further analysis is still being done.

The judgment that came down pertained very specifically to the Mi'kmaq groups in Nova Scotia that were signatories to the initial treaty in 1760, so it's clear that the judgment and the treaty right that stems from it actually apply to those bands that are Mi'kmaq in Nova Scotia.

We also know that very similar treaties were signed with the Maliseet bands in New Brunswick, so it's our conclusion that the bands that are covered would be the Mi'kmaq and Maliseet bands in Nova Scotia, New Brunswick, and Prince Edward Island. We also believe that the treaty benefit would cover the Listuguj Band in Quebec.

Now, there are still outstanding questions with other groups. For example, there are Mi'kmaq communities in Newfoundland, and further analysis is required to determine whether or not the treaty would apply to those communities.

Secondly, there are also other Mi'kmaq and Maliseet groups in Quebec. Further analysis is required to identify the extent to which they may be entitled to be beneficiaries of the treaty.

Thirdly, there are the Passamaquoddy groups. Passamaquoddy is largely a group of people who are living in northern Maine. Some members of the Passamaquoddy group live in New Brunswick, and further analysis is required to determine the extent to which this treaty may apply to them. The analysis is continuing.

• 0935

Now, the other elements of the honourable member's question pertain to Mr. MacKenzie. Mr. MacKenzie will be talking to members of the first nations that are represented by the Atlantic Policy Congress. As Mr. Wouters indicated, we have agreed generally on a two-phase process, whereby fisheries discussions will be proceeding on a much quicker timeframe.

Mr. MacKenzie's initial role as the deputy, as indicated, is to try to spend time immediately on working out practical arrangements with respect to access to the fishery. His work schedule is obviously underway. He has been discussing meeting with people and having discussions with various groups, and we expect that he will be meeting later this week with his vis-à-vis from the Atlantic Policy Congress.

He has also, through the course of his discussions, talked to representatives of commercial fishing industries. We would intend to continue those discussions. As the deputy has indicated, they need to be part of the solution, so we would be continuing to discuss with them.

The negotiations, as I've said, are intended to try to provide us with some practical fishing arrangements that can be initiated quickly, before the start of fishing season next spring. These arrangements will be without prejudice to what may finally come out of the broader process that will be addressed by Mr. Nault.

Our intent is to try to deal first with those fisheries that are opening more immediately. For example, lobster fisheries in southwest Nova will be opening. We now have agreement between members of the fishing executive for lobster fishing area 34 and the chief of the Acadia Band.

It's that kind of interim arrangement that we see as a model, which will allow those fisheries to be conducted in an orderly and regulated manner. We expect that we will be working towards those kinds of arrangements that will allow us to provide for an orderly regulated fishery at the time when fisheries start up again in more intensive fashion in the spring of the year 2000.

I hope that answers the questions that Mr. Bernier asked.

The Chair: Thank you, Mr. Chamut. There's a lot of information there.

Yvan, I'll give you one very quick question—but a question. You're over your time.

[Translation]

Mr. Yvan Bernier: I have a short question, but I don't know if the departmental officials will give a short answer.

You have just finished with your answer, which was nevertheless long, but I am curious as to what you mean when you talk about a regulated fishery. In light of the Marshall judgment, is there any regulation under the current Act which imposes limits on the fishery? I want to know how, given the regulations at our disposal, we can ensure that everyone has access to commercial fishing throughout the same season. I know that we can't do anything about ceremonial or food fishing, but is there some sort of regulatory power?

[English]

The Chair: Mr. Chamut.

Mr. Patrick Chamut: I apologize for the length of my previous answer—

The Chair: There was a lot of information there; we'll accept that.

Mr. Patrick Chamut: —but it was a complete answer to a very long question.

May I just say that in this case, Mr. Chairman, we can regulate the aboriginal fishery under the existing communal licence regulations. It is under that authority that we have issued communal licences to bands in Burnt Church and to the Indian Brook Band in St. Marys Bay, but we also recognize that as we move forward to implement this decision, we will need to review our regulatory framework to make sure that we are operating in a manner that is consistent with the judgment and that allows us to meet our objective of an orderly and regulated fishery. That's work to be done.

The Chair: Mr. Carmen Provenzano.

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Mr. Chair, I see that we can get complete answers to very long questions and complete answers to some questions in a series, but not complete answers to all questions.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): Do you want to repeat that again?

Some hon. members: Oh, oh!

Mr. Carmen Provenzano: I'm going to specifically address my questions, one at a time, to the assistant deputy attorney general. First, in her opinion, was the evidence of the chief government witness distorted by the court?

• 0940

The Chair: Ms. Beckton.

Ms. Clare Beckton: I'm afraid I can't answer that question because I did not argue this case and therefore did not hear all of the evidence that was put forward. I'm sure the court took a particular view of the evidence that was put forward, which is obviously their right to do so.

The Chair: Mr. Provenzano.

Mr. Carmen Provenzano: Is there anyone who cares to answer whether in their view the evidence of the chief government witness was distorted by the court?

The Chair: Mr. Wouters or Mr. Chamut, I would point out, although I didn't report it at the beginning of the meeting, Carmen, that we are going to have Mr. Patterson here in a couple of weeks, I believe on the 15th.

Mr. Carmen Provenzano: Maybe I can just ask these questions and Mr. Patterson can come prepared.

The Chair: Okay, fire away.

Mr. Carmen Provenzano: The first question is as I asked it. The second question is, was the distortion material? The third question is, even if there was a distortion, what can anyone do about it at this stage?

That's it, Mr. Chairman. I'd like answers to those questions at some point.

The Chair: Can anyone from the witnesses give an overview to Carmen's questions?

Mr. Wayne Wouters: We're not in a position to respond to those questions. I think it's best that those questions be passed on to the appropriate people.

Mr. Carmen Provenzano: This question doesn't really relate, but does anyone here have any amendments made to the text of the judgment after it was first put on the Internet?

Ms. Clare Beckton: There were some minor amendments made in Mr. Binnie's judgment specifically relating to the testimony of Mr. Patterson.

Mr. Carmen Provenzano: Those are my questions.

The Chair: Mr. Duncan.

Mr. John Duncan (Vancouver Island North, Ref.): Who is Mr. MacKenzie employed by on this job and who is he reporting to? Who's paying him and who is he reporting to? Which department or which arm of government?

Mr. Wayne Wouters: Mr. MacKenzie will report to the Minister of Fisheries and Oceans. He'll be engaged by the department in order to do that.

Mr. John Duncan: Does Mr. MacKenzie have a written mandate?

Mr. Wayne Wouters: Mr. MacKenzie's mandate is basically to work out, as I said, practical arrangements to allow aboriginal access to the fishery. That's his overall mandate.

Mr. John Duncan: Yes, I heard that answer the last time. Does he have a written mandate?

Mr. Wayne Wouters: We're working on the details of that written mandate and it will be provided shortly.

Mr. John Duncan: So that will be made public?

Mr. Wayne Wouters: We can make that available to this committee, if you so wish.

Mr. John Duncan: On the premise that it becomes a public document at that point?

Mr. Wayne Wouters: As I said, we'll make it available to this committee and we'll determine whether we need to make it public. If it's available for this committee, I presume it will be available to the public.

Mr. John Duncan: Do we have any idea at this point how much Mr. MacKenzie is prepared to give away in terms of the fishery, to transfer from the existing stakeholders to the new stakeholders?

Mr. Wayne Wouters: I'm not prepared to outline here our negotiating strategy vis-à-vis discussions with the aboriginal leadership on this file. We are working out basically what we think the arrangements should be in each given fishery and looking at the current capacity of the bands to fish and what the requirements may be, but I'm not prepared to spell out in detail here today what that negotiating strategy will be, Mr. Chairman.

Mr. John Duncan: The track record of government whenever we get into any aboriginal negotiations is that the negotiator's mandate is a cabinet secret, basically. What I'm trying to establish here is will the existing stakeholders and will the public know what the negotiator's mandate is in these negotiations?

Mr. Wayne Wouters: As I said, we're not prepared to discuss here in any shape or form the negotiating position of Mr. MacKenzie or the department. That is something we want to work on and that is something we want to sit down and discuss with aboriginal leaders in the commercial sector. So today we're not prepared to enter into those discussions.

The Chair: I'll give you time in a second, John.

• 0945

But you are prepared to assure us that this is an interim arrangement without prejudice? That's what you said in your statement earlier?

Mr. Wayne Wouters: Yes. In the arrangements we'll be negotiating, clearly, as I said, there will be issues that need to be resolved as part of the longer-term process. The arrangements Mr. MacKenzie will be working out with us are essentially arrangements that provide access. We may need to review at the end of the day, once the broader questions and issues are resolved, the overall access issue that we've worked out with the aboriginal leaders.

The Chair: Mr. Duncan.

Mr. John Duncan: The real question here is who's representing the non-native interests. Mr. MacKenzie comes from a background of being a treaty negotiator. His mindset is to represent a Department of Indian Affairs mindset, which is that they have a fiduciary obligation, a primary, paramount obligation, to the aboriginal people and not to the other non-native stakeholders and the public interest. This has become a problem when we have federal-provincial negotiations in my home province, with the province hiring federal negotiators from, say, the Yukon, concluding negotiations, and we no longer have a counterbalance.

I'm concerned that we have an individual with the wrong mindset here. We just had the people in Yarmouth walk away from the negotiator on the basis that his knowledge of the fishery is lacking. Do you share a concern that the non-native interests in the fishery are not going to be adequately represented under the current format?

Mr. Wayne Wouters: The first point is we're very comfortable with the skill and the competency of Mr. MacKenzie. That's why the minister has proceeded to engage him in providing him advice and undertaking the discussions.

But the honourable member does raise a very good point. There is a need to ensure, as part of this process, that the commercial sector has a say. That is something we are looking very carefully at. How can we, while proceeding forward, as Mr. MacKenzie is doing, in discussions with the aboriginal leaders, ensure that the commercial sector's views are heard and that they are part of the process? We are in discussion with Mr. MacKenzie to ensure that process is also very clear.

The Chair: Mr. Assadourian.

Mr. Sarkis Assadourian: Thank you very much.

On page 6 of this documentation on the judgment, under “The 1760 negotiations”, starting at the third line, it says:

To avoid the Mi'kmaq from becoming a drain on the public purse the British found it necessary to protect the traditional Mi'kmaq economy, including hunting, gathering and fishing.

I'm new on this committee, and what I'm hearing so far is that Mr. MacKenzie's job is only to negotiate the fisheries, not hunting and gathering. Am I right?

Mr. Wayne Wouters: Yes, that's right. When it comes to looking at the other rights and the other aspects of this decision, Mr. Nault has overall responsibility for developing a process, working with the aboriginal leaders, working with the provinces in some cases, to deal with those broader questions.

As I indicated, Mr. MacKenzie's responsibility, however, is to work over the next several months to ensure access and to ensure that access can be done in a regulated way and in a way that is agreed to by not only the aboriginal stakeholders in this fishery but also the commercial fishers. That is his responsibility.

Mr. Sarkis Assadourian: Basically what you're telling us is that a few months down the road, when Mr. MacKenzie comes in with his report, it's possible we'll have another problem with hunting and gathering and we'll meet again and try to appoint another mediator. Is that right?

Mr. Wayne Wouters: There's a long-term process. I can't comment on that. That's the responsibility of the minister of DIAND as to how that process will unfold. But the intent there is to look at all of those other issues as part of that longer process.

Mr. Sarkis Assadourian: Thank you.

Mr. Patrick Chamut: If I might just add to that, it's important to point out as well that the issue of hunting and gathering is something that generally falls within the responsibility of the provinces. They have jurisdiction for regulating hunting and gathering. It's as part of that broader process the deputy referred to that those sorts of issues will be addressed, because within the federal government, we have no direct jurisdiction to deal with gathering or hunting activities.

• 0950

Mr. Sarkis Assadourian: I have one more question. Can you define what “gathering” means to you? I'm new to this. I don't know that “gathering” really means.

Mr. Wayne Wouters: Well, as you can tell, we're having enough difficulty with fish.

Voices: Oh, oh!

Mr. Wayne Wouters: We really haven't given much thought ourselves, as the Department of Fisheries and Oceans, to what “gathering” means.

Mr. Sarkis Assadourian: This thing was signed in 1760. We've had about 200 years to figure it out.

Mr. Wayne Wouters: Yes.

Mr. Sarkis Assadourian: I say that because on a TV program a week or 10 days ago they had a similar discussion. One band leader said “For the last 200 years, every time we asked for negotiations, we never had negotiations. Now all of a sudden we're negotiating only fish. How about the others?”

Mr. Wayne Wouters: Again, just to re-emphasize, what we've outlined and what the ministers have outlined is a two-stage approach. So it is not the case that we're only negotiating one. We are working immediately on the fishery, but also there will be a broader process to deal with questions like the honourable member of Parliament raised today on the question of gathering. That will be part of the broader process.

Mr. Sarkis Assadourian: What are the chances that we'll have a definition of the word “gathering” in the next few months so that we can prepare ourselves for the next crisis coming up?

Mr. Wayne Wouters: Again, I'm in no position to comment on—

The Chair: I think we understand that, Mr. Wouters. Fishing is your responsibility.

Mr. Stoffer.

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Thank you, Mr. Chair.

I have three quick questions for you, which you can answer when I'm finished.

Are lobster stocks or shellfish stocks themselves in trouble when it comes to conservation?

Two, when you say co-management—and Mr. Dhaliwal didn't answer this last time—are you contemplating an ITQ system, which is individual transferable quotas, on the lobsters?

And three, was there a meeting with members of the corporate sector and DFO in Halifax a few weeks ago? The corporates apparently brought their lawyer with them and had a meeting with Neil Bellefontaine. The tone of the meeting apparently—and these are just allegations of course—was that if the aboriginal people go past the three-mile limit, the corporate sector will sue the DFO.

Those are three questions there.

In your document that you handed out to us, it says, and I'll repeat, “It was not realistic to expect we could work out arrangements prior to the judgement.” And four paragraphs down, you say, “We have a legal obligation to consult with Aboriginal people on issues associated with their rights.” That's a contradiction right there.

You know very well, sir, that in March the Mi'kmaq people came up to Ottawa to consult with you fine people, to say “If the Marshall decision goes our way, we would like to set up some kind of plan to head off the kind of trouble we've seen on the waters.” From our information, from Mr. Christmas and those people down in Nova Scotia, they were told to go away.

What I have here is $5 and a freedom of information form that I'd like to give you. I would like to have all the documents and notes pertaining to those meetings that apparently started in March. I'd like the documents from all meetings between the DFO and the Mi'kmaq people for this committee. So I'll give that to you as well.

When you talk, you're talking to aboriginal people. Are you talking to status or non-status? And on that question, did Mr. Dhaliwal meet with the Passamaquoddy Band of Maine? If he did meet with the Passamaquoddy people of Maine, I'm asking why.

The Chair: I wonder, Peter, if you could give them a chance to answer the questions. We're going to run out of your time.

Voices: Oh, oh!

Mr. Peter Stoffer: I guess there were about eight or nine questions in there.

The Chair: Mr. Wouters or Mr. Chamut.

Mr. Wayne Wouters: I could comment on the broader question of consultations with the Mi'kmaq and Maliseet.

We have had an ongoing working relationship with the Mi'kmaq and Maliseet bands of Atlantic Canada since 1992. We've established a very good working relationship with them through the aboriginal fisheries strategy, through the transfer of 200 licences, as I indicated.

We have a solid basis to proceed in this dialogue. We're comfortable. The groundwork we've laid out over the last seven years gives us the opportunity now to proceed with the Mi'kmaq and Maliseet bands. Capacity has been built through that dialogue and through that work, through the aboriginal fisheries strategy. It serves as a very good basis to proceed, and that's what we intend to do.

• 0955

As we said before, this decision is complex, and it has to be studied. We have done that. We've recognized that there's a right. So the second part of our plan has been to ensure that those who want to fish should be able to fish in this interim basis but in a regulated way. But most importantly, we have recognized through our experience with the aboriginal fisheries strategy that where we've had success has not been by unilateral action by the federal Government of Canada. Where we've had success is through dialogue and through accommodation and recognizing their rights and trying to ensure that those rights can be respected and recognizing the needs of the commercial sector. That's our approach. That has been our strategy: to understand the decision, to move on an interim basis to basically provide the right, and to work on an ongoing basis, through dialogue and cooperation, to ensure access.

Our view is that we have an excellent basis with those Mi'kmaq and Maliseet bands in Nova Scotia, in New Brunswick, and in P.E.I. to undertake this dialogue. We're confident we're going to be able to do that. We're comfortable with the approach. And now the question is to ensure that those arrangements are put in place by next spring.

I'll let Pat speak to the specific items that you've raised.

Mr. Patrick Chamut: Thank you, Mr. Chairman. I'll try to be brief.

The questions are complicated. The first question was on conservation of shellfish. There are some areas, for example Bay of Fundy scallop, where we indeed are concerned about conservation of that resource. But in general terms, our shellfish stocks are in good shape throughout most of Atlantic Canada. We do have some concerns about lobster. Lobster is currently at historically high levels of production, but we also recognize that we cannot ignore the fact that effort has been increasing. We implemented a conservation program two years ago to try to ensure that the well-being of lobster stocks will be assured. So that action has been taken, and will continue.

On the question about are we contemplating ITQs in lobster, I make one comment first. As you are aware, there is an ITQ program for offshore lobster, which is ongoing, involving eight licence holders that fish in that area, but we are not, at the present time, contemplating introducing ITQs for lobsters. They're generally more difficult to manage in that way. As a result, they have been managed on the basis of effort limitations and ensuring that we have proper size limits and the like.

You asked if there was a meeting of the corporate sector. My understanding is that there was a meeting involving regional staff with those individuals and those companies that have licences in the offshore lobster fishery. There was discussion of their assertion that the right should only apply within the three-mile limit. And there was further discussion about the issue of opening or reopening the offshore lobster fishery in the middle of October.

The Chair: Mr. Power, before Mr. Wouters has to leave, go ahead.

Mr. Charlie Power (St. John's West, PC): Thank you. I'm glad I get a chance to ask the deputy a question before he leaves, because I don't think he lives in the same world I live in.

An hon. member: You got that right.

Mr. Charlie Power: The deputy just said that he has a good working relationship with the aboriginals in Atlantic Canada. And further on he said he has an excellent working relationship. The working relationship was so good between DFO and the aboriginals that they took you to the Supreme Court. Now, if that's good working relations, I don't know.

The question I want to ask before I ask about the negotiator is how, when you have had an aboriginal fisheries strategy from 1992, can you end up in September 1999 with the Supreme Court making a decision that this Department of Fisheries and Oceans simply wasn't prepared to accommodate? What happened in the seven years in between?

I can quote, as the deputy says, in hindsight that it's easy to argue that more should have been done. But it was and remains my view that to build a solution you must first understand the problem. As we know, lasting solutions are best achieved through consultation and cooperation—that's in his document this morning. What happened between 1992 and 1997 that we had to end up in the Supreme Court with a judgment that the Department of Fisheries and Oceans and indeed the Government of Canada was not prepared in any way, shape, or form to accommodate?

Mr. Wayne Wouters: Again, Mr. Chairman, I guess my view differs to some extent from that of the honourable member. Yes, in Atlantic Canada there are always certain difficulties in relationships with our clients, but my view is that we have developed a good working relationship with the aboriginal people.

• 1000

In terms of moving forward with our regulations, there are times when many of our clients do not feel that those regulations are the proper ones and undertake legal proceedings. This is what happened in this case. I don't think any of us could anticipate the overall decision. You saw two lower cases that went against Mr. Marshall. But regardless of the decision, I think that the approach we're taking is clear. It's straightforward. What we need to do now that the decision is here is basically recognize the right and provide the access. That's what we're intending to do.

Mr. Chairman, it is now ten o'clock.

The Chair: I understand that. I believe Mr. Chamut and Ms. Beckton are staying.

Thank you, Mr. Wouters.

Mr. Wayne Wouters: Thank you.

The Chair: Mr. Power, you have more time.

Mr. Charlie Power: My second question is along the same lines, on how we get involved now. The deputy's comments are that we now require changes to our regulatory framework and changes to how the department exercises its responsibilities. All of a sudden you see that now, because of the Marshall ruling. Why didn't you see it after the 1992 cod collapse in Atlantic Canada? Why didn't you see it with the fishery problems relating to salmon on the west coast? Why does it have to be only the unilateral action of the Supreme Court that makes this Department of Fisheries and Oceans realize that you're out of touch with the people who are involved in the fishing industry and that they have a right to be involved in the management?

The Chair: Mr. Chamut.

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

First of all, Mr. Power, I really must say that the department has made a number of significant changes to the management of the fishery since 1992, and that is not just in terms of its relationship to the aboriginal people.

Mr. Charlie Power: Any for the better?

Mr. Patrick Chamut: What we have done is introduced a number of changes that will have the effect of ensuring that we have conservation of the resource and that we have a sustainable fishery for the long term. There's a whole list of things that have been implemented in Atlantic Canada and in the Pacific to achieve that.

Now, with respect to the immediate issue before us, if you read the judgment you'll see that the court made certain observations about the charges against Mr. Marshall and the ability of the department to regulate those. It's our view that we need to take a look at our regulatory framework as it pertains to managing the aboriginal fishery to ensure that we're managing in a way that will achieve our objectives for a sustainable fishery as well as ensuring that we're respecting the aboriginal right that's been determined by the court.

Mr. Charlie Power: My final question, Mr. Chairman, relates to the negotiator and the role he can play.

I think everyone in this country realized that a negotiator was appointed in a panic by the minister, whose department was in a panic about a situation that had been allowed to occur with really no game plan from the department.

What does a negotiator do when you don't give him any instructions? He's working on behalf of all the people of Canada on behalf of the Government of Canada, both sides, native and non-native, when nobody seems in the Government of Canada yet to have any kind of a reasonable interpretation of what the Marshall ruling means. Does it mean fish? Does it mean gathering? Does it mean timber? Does it mean oil resources? Does it mean three miles offshore or 500 miles offshore? How does a negotiator go in there and, on behalf of the people of Canada, make some kind of a reasonable settlement when there are so many other things the Government of Canada seems not to have any opinion on just yet? How does a negotiator work under those circumstances?

Mr. Patrick Chamut: First of all, Mr. Chairman, I think it's important to point out that we do have opinions that have been provided with respect to the judgment. There is no question that there are many, many different areas that need further study. There are a lot of areas that have been raised that will require further historic research, that will require that we have further legal assessment. That assessment is underway and those opinions are coming forward, which does provide us with a framework within which we can begin to address the negotiation of the right.

Mr. Charlie Power: I guess my point is if the negotiator comes back and makes an agreement relating to lobster, is he going to cause a tremendous amount of complication to anything from crab off the coast of Newfoundland to cod to just about any fish in the water or any crown resource owned on land? You're asking someone to negotiate on behalf of all of the government when in effect I think he's going to make the thing more complicated and more difficult by the negotiated settlement that he will do for one small sector. I don't know how it's going to work.

Mr. Patrick Chamut: Mr. Chairman, our approach, as was pointed out earlier, is to take a two-phased approach, where we are working to try to deal with the issues that currently confront us in the fishery. We recognize that there's an important requirement to try to have some arrangements in place prior to the start-up of our major fisheries next spring. That's our objective, because we think it's important to have that in order to have an orderly fishery at that time.

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At the same time, there are going to be ongoing efforts to try to work on some of the broader implications of Marshall. We'll work on the fisheries arrangement, do it quicker, on a faster track, while the broader assessment is carried out. At that time we will have interim arrangements that will deal with the fishery and that can be addressed and rolled into the broader assessment that will be ongoing.

The Chair: Mr. Matthews.

Mr. Bill Matthews (Burin—St. George's, Lib.): Just a couple of quick questions, Mr. Chairman.

First of all, I believe in the 1760 treaty, the treaty rights pertain to P.E.I., New Brunswick, and Nova Scotia. I believe you said that, Mr. Chamut. So the Mi'kmaq of Newfoundland do not have any rights under the 1760 treaty. I want to be clear on that.

Mr. Patrick Chamut: What I said, Mr. Matthews, was that those communities we recognize as being beneficiaries of the treaty. The question of Mi'kmaq communities in Newfoundland is not yet clear. Further work is being done, and that's something we'll have an opinion on shortly.

The Chair: As well as the ones in Quebec, you said.

Mr. Patrick Chamut: That's right.

Mr. Bill Matthews: So there may be an expansion, is basically what you're saying, for those covered under treaty rights. It may yet apply to Newfoundland.

Has the negotiator been given any direction or leverage from the department? It seems that the lobster fishery—and that's what we're dealing with, the crisis in the lobster fishery right now—is fully subscribed. If we follow the argument of conservation as our number one priority, has the negotiator been given any leverage or direction whatsoever from the department to enter into a licence buy-back program? How else are you going to allow other people into the fishery if it's fully subscribed, unless you buy people out? I'd like your comment on that.

Mr. Patrick Chamut: Mr. Chairman, Mr. Matthews is right, lobster, along with virtually every other fishery in Atlantic Canada, is fully subscribed. As we move to implement the right, as the deputy has said, we will be doing so in a manner that is sensitive to the interests of those who depend on the resource for their livelihood. There are various mechanisms that can be employed to give effect to that, and obviously one option that's being investigated is the option you have raised.

The Chair: Before I go to Mr. Gilmour, when do you expect Mr. MacKenzie to report? Is there a timeline?

Mr. Patrick Chamut: Our expectation, Mr. Chairman, is that Mr. MacKenzie's objective would be to have arrangements worked out—practical fishing arrangements—for the fisheries by spring of the year 2000. So we're looking at some time around the end of April.

The Chair: Before I go to the second round, it was brought up earlier that there would be the possibility of the fisheries committee receiving the terms of reference. I think you can expect that we want to see those terms of reference for Mr. MacKenzie.

Mr. Gilmour.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman.

I'd like to ask the representative from the Department of Justice whether the moderate livelihood definition is adequate in law from a Justice point of view.

Ms. Clare Beckton: As you can appreciate, I can't answer that question in that form. All we have is what the Supreme Court of Canada has said in the judgment in Marshall with respect to what a moderate livelihood might entail, and they did articulate that it may include things like housing, food, clothing, and other amenities. But it's really not within my power to determine whether that's adequate or otherwise.

Mr. Bill Gilmour: So the bottom line is nobody knows what a moderate livelihood is. It's whoever happens to be dealing at the table at the time.

Ms. Clare Beckton: What I'm saying, Mr. Gilmour, is that the only guidance that the court provided was to articulate that it did not extend to the open-ended accumulation of wealth and that it did include things like housing, food, clothing, and other amenities.

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Mr. Bill Gilmour: Which is pretty fuzzy. Thank you.

Mr. Chamut, I think this boils down to what has been going around this table, and that is the credibility of the department, which is dismal. That's why people are very uneasy about the department going forward and negotiating with the native component of the fishery. What's going to happen to the people of the non-native fishery, the people who have traditionally been there for years?

We're supposed to be comfortable about your looking after the level of lobsters on the east coast. For the sockeye count that we just went through on the west coast, the department said 8.4 million sockeye were going to return. In fact, 3.5 million showed up. The department's count was less than 50% accurate. How are people supposed to be feeling comfortable when you can't even count fish and you're going to be dealing with the livelihoods of people who have been in this fishery for generations?

There's nobody—as far as we can ascertain—at the table who is going to look after those interests. The department appears to be looking directly at the native interests. Who at the table is going to be looking at the non-native interests?

The Chair: Mr. Chamut.

Mr. Patrick Chamut: Thank you, Mr. Gilmour. May I just make one comment about your sockeye example? The numbers that you were giving were not counts of sockeye; that was a pre-season estimate made on the basis of available scientific information, which indicated that we would see about 8.4 million sockeye coming back. In the final count, we received back into the river about 3.5 million.

It's not unusual for there to be a discrepancy between actual returns and projected returns, because the science of prediction of salmon is very difficult. In the past, we've had situations where we have predicted a lower amount and more have come back. More recently, ocean conditions have changed rather dramatically and the number of returning sockeye, in particular, has been diminished below what was being reasonably predicted. I think that clarification is important.

Mr. John Cummins: On a point of order, Mr. Chairman—

Mr. Patrick Chamut: The second issue, if I may—

The Chair: Mr. Cummins, what's the point of order?

Mr. John Cummins: It should be noted, for the record, that the numbers were fudged by the department in 1995.

The Chair: I don't think that's a point of order.

Some hon. members: Oh, oh!

The Chair: Go ahead, Mr. Chamut.

Mr. Patrick Chamut: Thank you.

The other question that was raised is about who will be looking out for or taking care of the interests of non-aboriginal fishers.

As we go through this, our objective is to try to find a solution that is going to be balanced so that we respect the right of aboriginal people, which the court has told us we must do, and at the same time, we have to find an approach that will be sensitive to the interests of those who earn their livelihood from the fishery.

We will be proceeding in a way that involves aboriginal people, obviously, and we will also be consulting and talking to commercial fishermen. That process has begun and it will continue. The deputy, in his comments, referred to looking at ways and means of identifying the interests of commercial fishermen and making sure their views are heard as we proceed through this. We're well aware that a solution that pertains only to the rights of aboriginal people is not going to be a lasting solution, and what we're looking for is a solution that will be balanced and acceptable to both groups on this particular issue.

The Chair: A very short, quick question, Mr. Gilmour.

Mr. Bill Gilmour: Okay. We've heard this before, but the short question is this: are the native groups that have no traditional history also being brought to the table, or is it strictly the people that have a traditional fishing background? Is it everyone?

The Chair: Mr. Chamut.

Mr. Patrick Chamut: We are right now dealing with the groups that are represented by the Atlantic Policy Congress, which represents the various bands throughout Atlantic Canada. At this point, that's right. We do anticipate that once we develop an overall agreement on process, we will be dealing more specifically with the various groups, because we know that the interests of the various groups will be different. In some cases, there may be a greater or a lesser interest in fish given the location of the group, and that's something we'll be sensitive to as we move through this process of discussion.

The Chair: Mr. Bernier.

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[Translation]

Mr. Yvan Bernier: Thank you, Mr. Chairman. I first asked what regulatory powers were at our disposal. I'm not quite sure I understood the answer. But it was clear to me that you were not sure of the regulatory framework surrounding the Aboriginal fishery. When anyone talks about an authorized Aboriginal fishery these days, they mention communal licences, regulated and organized on the basis of conservation principles. If the fishery is regulated and organized, I would like to see a copy of the regulations this is based upon. If that's not possible, let's stop talking about a regulated fishery.

We asked to see a copy of Mr. MacKenzie's mandate. I would also like to see a list of the bands with which Mr. MacKenzie may and must negotiate. We can always add the names of other bands later. Do these bands fall under the provisions of the 1760 Treaty or not? The list will be a living document, but at least we'll have something to start with. We will know which issues Mr. MacKenzie will negotiate and with whom.

There surely must exist some regulations since the Aboriginals from Burnt Church were given permission to use 600 traps. I want to know how that figure was reached. Was it a nice day? Did it depend on the number of seagulls flying up above? Were there well- established criteria? I'd like to know. Indeed, it will be important for Mr. MacKenzie to understand given the job he'll have to do.

A little further on in your submission, it says that in Atlantic Canada, we provide about $5 million annually to facilitate Aboriginal involvement in the management of the resource. Five million dollars! It doesn't say since when precisely, but it says “annually”. What regulation is at the bottom of this? Have these $5 million been invested in areas where there are still conflicts between Aboriginals and white communities? I want to know if the money actually made a difference or if it was all a smokescreen. Mr. Chairman, I would appreciate it if we could receive a list of the communities which benefitted from those $5 million.

[English]

The Chair: Mr. Chamut.

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

First of all, let me deal with the question of what regulations apply. The regulations that apply are the aboriginal communal fishing licence regulations. We have used those regulations as our legislative or regulatory vehicle to set the regulatory framework to govern the conduct of fishing that we have seen after the Marshall decision.

The question is raised of how we reached the figure of 600 traps in Burnt Church. That figure, first of all, was a figure that was identified as an interim arrangement. It was not a long-term arrangement that would pertain beyond the immediate lobster fishing season. As to the rationale for that number, there were a number of factors that were considered.

First of all, we considered that the band had previously enjoyed a fishery for lobster, giving them access for food, social, and ceremonial purposes. Under that arrangement they took about 125,000 pounds of lobster.

Secondly, we also recognized that the Burnt Church Band had been assigned 13 lobster licences in the commercial fishery, which provided them access to the regular season in that area.

The third factor we took into account was that the band had practised its fishery in Miramichi Bay after the Marshall decision, providing them with approximately 195,000 pounds of lobster at that time.

We felt, in our review of these circumstances, that a figure of 600 traps would provide them with the opportunity to continue their fishery. It would provide them with reasonable access to the fishery based on all of the above factors. As I say, it was not something that was introduced as a limitation that will apply in the long term; it was a decision that was made following consultation with the band and also based on our assessment of the factors I have given.

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The other question that was raised is the issue of the $5 million that is provided annually to aboriginal communities in Atlantic Canada. Mr. Chairman, I can assure you it is not based on smoke and mirrors. There are moneys that are expended throughout a variety of aboriginal communities. I do not have a breakdown at this time, but it's obviously easily achieved or easily put together.

The purpose of those moneys is to facilitate aboriginal involvement in and management of the fisheries they conduct for their own communities. We provide them with money to allow them to hire guardians, to hire fisheries monitors, to engage in stock assessment, to be involved in those sorts of activities that are generally associated with the conduct of their food fishing opportunity. The moneys have been very useful in building capacity and providing an opportunity for aboriginal people to participate more fully and more completely in the management of the fishery in their own areas.

The Chair: Mr. Bernier, we're out of time. I have on my list Mr. Stoffer, Mr. Muise, and Mr. Cummins.

Mr. Peter Stoffer: I have a quick question for Madame Beckton. Does this treaty, in your legal opinion, apply to non-status Indians, or aboriginals, I should say?

Ms. Clare Beckton: I'm afraid I can't because I'm not here to provide my opinion to the committee. I can simply say that the court does not specifically address the question of who are the beneficiaries. That is something that obviously will have to be looked at, as to how far it extends.

Mr. Peter Stoffer: Mr. Chamut, are you negotiating at all with the non-status aboriginal people off reserves?

Mr. Patrick Chamut: At the present time, Mr. Chairman, our approach is to focus on discussions with the bands. These are the people who we believe are clearly the beneficiaries of this treaty right.

In our approach I think we've emphasized the importance of being able to work quickly to come up with practical fishing arrangements. As a result, we're focusing our initial efforts on Indian bands. I should add that we know there are other organizations that are claiming that their members may also enjoy the treaty right. For example, some of the native councils are making that claim. I think we recognize that while those organizations themselves are not beneficiaries, some of their members may be.

So one of the things we have to work out is what sort of process would be appropriate to deal with those individuals who may be able to claim the exercise of the treaty right based on their linkage with one of the bands.

I realize that's a long-winded answer, but we're essentially focusing our initial efforts on the bands, recognizing that there may be some other members that are not part of those groups that may also be able to claim the right.

The Chair: Mr. Muise, Mr. Cummins, and then Nancy.

Mr. Mark Muise (West Nova, PC): Thank you, Mr. Chairman, and thank you to our guests.

I have some of the same concerns that were raised around this table, and they have to do with the negotiator, his role, his mandate, what he can and can't do, and his abilities to do or not do those things.

My first view of what he could or could not do was when he met with the people in our area and they weren't able to negotiate. They went out on their own. By showing good faith on the fishermen's side, the non-aboriginal, Chief Debbie Robinson and Chief Frank Meuse, they were able to come to an agreement. I commend both parties for that.

Having said that, I'm wondering, does Mr. MacKenzie's role give him the ability to negotiate an agreement that's binding on both parties?

Mr. Patrick Chamut: I think the approach Mr. MacKenzie is taking is to try to work out practical fishing arrangements that he would see as being interim fishing arrangements. Those arrangements or agreements that are reached will be introduced as part of the broader negotiations that will be conducted to look more fulsomely at the overall implications of the treaty right.

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So the issue of them being binding agreements I have to be clear on. In the implementation of the treaty, the binding nature of those agreements will come later. What we're looking for is something that will provide us with arrangements that will guide us through the fishing seasons in the immediate future.

Mr. Mark Muise: So if I understand correctly, what you're saying is when he does his report, let's say next spring, as you indicated, what will probably happen is he will bring forth what he sees as potential things that could work, and then negotiations will go further from there?

Mr. Patrick Chamut: No. I'm focused more on the word “binding”. We recognize that what he will be doing is working practical arrangements for aboriginal access to the fishery. Those will govern the conduct of fisheries and aboriginal access for a period of time, as we await the outcome of the broader negotiations on the implementation of the treaty right as it may pertain to other resources.

The Chair: Mr. Cummins.

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

I've asked under access to information for all the documents regarding the policy and enforcement implications of Marshall and all the planning documents in regard to the case as well. In the past the department has been very slow in these matters. I never did get the documents relating to Nisga'a. When I asked for the documents relating to the Van der Peet decision, it took more than a year to get anything. Do I have any reason to hope I'm going to get faster service this time around?

The Chair: Mr. Chamut, I don't know if you can answer that or not.

Mr. Patrick Chamut: I find it very difficult, Mr. Chairman. I know we receive many access to information requests. We do not know who is requesting them. We do make sure we implement the requests as quickly as we can. On many occasions the requests call for very broad searches, and we treat them in a timely fashion, but we also want to make sure they are complete.

In the specific instance Mr. Cummins has raised, I'm not really in a position to comment, other than to say we will meet our responsibilities under access and provide the requested information.

Mr. John Cummins: I imagine they'll be met in time, or “in a timely fashion”—I think that's the one the justice minister uses—which could mean forever.

For the representative of the Department of Justice, Justice Binnie in the decision converts restriction in trade to an implicit promise by the crown to a right to catch and use fish. Maybe it's understandable that he would want to use the crown witness against the crown, which is what he does, and then he obscures what he's doing by invoking the honour of the crown.

When he used the chief crown witness, he did so improperly. When we asked the law and government section of the research branch of the Library of Parliament to identify other examples of changes to decisions, from 1992, they were able to identify 19 of these changes. In essence these were simply grammatical changes, putting quotation marks in; there was nothing of any substance.

In a decision where the courts have made such a glaring misinterpretation of a chief witness, wouldn't it be appropriate to go back and ask the court to have a look at the implications of its decision, at the very least?

Ms. Clare Beckton: That's obviously a very difficult question to answer, Mr. Cummins, because you've stated your interpretation of what Mr. Justice Binnie did. It's very difficult for me to say whether the Supreme Court of Canada has the authority or not to change their judgments, since they are the final court in this land.

• 1030

I can't speak to whether one should go back and ask a court for a rehearing. That is obviously a decision of the Attorney General of Canada. However, as you can appreciate, rehearings are subject to specific rules and those rules have to be met before the court would consider rehearings. Normally, rehearings are done on the basis that there is new evidence that hasn't been considered.

Mr. John Cummins: This issue is one of evidence that was misinterpreted. You would think that if a court is concerned about the honour of the crown, it would also be concerned about the integrity of the system of justice. Wouldn't your department be concerned about that?

Ms. Clare Beckton: I think it may be a matter of interpretation. I wasn't in the court's shoes to ascertain what they were looking at in terms of their interpretation. Therefore it's not possible for me to make a judgment that their interpretation was wrong or otherwise.

Mr. John Cummins: Others have told me that the “moderate living” interpretation will not stand up in court because it's a merely an invention of the judge, without any foundation in the treaty. What's your view?

Ms. Clare Beckton: Again, I've said that it's not my view that's important to this committee. I'm not here to give the committee my views. I can simply say again what the court articulated in its judgment. They did articulate—as I indicated earlier—specific guidelines with respect to what a moderate livelihood may constitute. They did that based on the historical evidence that they had before them as to what the Mi'kmaq people were doing in 1760.

The Chair: One more question.

Mr. John Cummins: Mr. Chairman, I guess the department has indicated this morning that there are going to be fish for everyone, if I correctly interpret what Mr. Chamut and the deputy minister have been saying. Their faith reminds me of a story about a guy who took a few fish and a few loaves of bread and fed thousands. When I think about that, I wonder if that's not what the department's trying to do now, and I wonder if that guy might be biding his time in the department—or maybe Mr. Chamut's that guy. I don't know.

Some hon. members: Oh, oh!

The Chair: Do you want to answer that one, Pat, or pass it by?

Mr. Patrick Chamut: I will not deal with the latter part of the intervention, but I would like to comment on the issue of fish for everyone. I think that would be the wrong interpretation of what has been said today. I think we all recognize that there is a fully subscribed fishery, and adding more individuals to respect the aboriginal right will undoubtedly require that there be some displacement of others.

What we're trying to do...we recognize the challenge of this, and that challenge has been reinforced in what the deputy said. I think it has also been recognized in what we have been discussing through the course of questions. What we're trying to do is to find the balance that will allow us to respect the right in a way that will ensure that the interests of others are also accommodated. That's the challenge before us. We're not trying the trick of the loaves and the fishes.

The Chair: You gentlemen may be trying to put a little water in your wine, though.

Nancy Karetak-Lindell.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you, Mr. Chairman.

As I listen to the comments this morning, I find it all very interesting and I just more or less want to make a statement.

In the last statements, you were talking about respecting aboriginal rights. I know we're faced with a very serious situation today with interpretations, and different people have different interpretations of the situation.

First of all, I'd like to commend the first nations that are involved for agreeing to the talks, because I find that if everyone had had everyone's interests at heart at the 1760 negotiations, I don't think we would be talking the way we are today, not if people really felt that the other side's interests had to be taken into consideration. They've been very patient for 230 years, so I feel that asking for people's patience in the situation is not too much to ask for.

It doesn't take two wrongs to make a right in this situation, so again I think the steps that we're taking as negotiations in this situation are the way to go.

• 1035

In your opinion, do you think that asking for people's patience and trying to work at this until the spring of 2000 is a reasonable amount of time to come to a good working solution?

Mr. Patrick Chamut: Mr. Chairman, I think I should first indicate that we recognize that there have been a number of bands that have chosen to exercise their right to fish, but in fact it is a fairly small number in terms of the total whose treaty right has been affirmed by the Marshall judgment. I think it is important to note that there has been a lot of patience already demonstrated and a willingness on the part of bands to sit down and work with the department on how the judgment will be implemented.

For those bands that have chosen to exercise the right, what we have tried to do, and in many cases have succeeded, is to work with them to try to find ways in which they can exercise that right, but within a framework that will ensure that the resource is properly managed and that we can have a regulated fishery.

In terms of the question of the timeframe, we believe it will be a major challenge to be able to work things out within the immediate five or six months we're looking ahead to, but we think we have to make that effort to do it, because we know there are indeed limits to how long people will wait. We also recognize that the court has found that there is a right, and it's our intent to find ways in which that right can be respected. So it will be a very challenging time, but we think it's something we must try to achieve. That's our objective.

Mrs. Nancy Karetak-Lindell: When you talk about a solution for the spring, you're talking about a short-term solution and that they'll be still at the negotiating table for a long-term strategy. That is what I understood from the answers this morning.

Mr. Patrick Chamut: I think that's right. Our approach is to try to work out arrangements that will enable fisheries to be properly managed and regulated come the spring of the year 2000. But we also know that there are other issues that are arising out of the Marshall decision dealing with access to other resources. The issue of hunting, the issue of gathering, and the like will be unfolding over a longer timeframe. So what we're doing is putting in place something that will deal immediately with fish, recognizing that there's another process that will be continuing beyond that particular point of spring of the year 2000.

The Chair: Mr. Bernier, you had one question, I believe.

[Translation]

Mr. Yvan Bernier: At the outset, Mr. Chairman, I want to be sure that the clerk realizes I want a list of existing community licences. A little earlier, I was told that some of the $5 million was to facilitate Aboriginal involvement. I think that's a good idea, but I would like to see the list of places which receive these permits and the quantities and species of fish contained in those permits.

Second, still in reference to the $5 million, I would like to see the list of communities which received some of that money. That's always good to know.

I'll come to my question now, Mr. Chairman. It seems that nobody sitting around the table this morning knows precisely what moderate livelihood means. I have an easy question for the officials from the Department of Fisheries and Oceans. If the answer takes too long, I think we should ask the witnesses to come before the committee again as soon as they are able.

This is my question. In many Department of Fisheries and Oceans papers, and even in the United Nations Agreement on Fisheries, the Canadian government has committed itself, on a global scale, to develop an ecologically viable and profitable fishery.

What does “ecologically viable” mean? It means we will have to choose what equipment to use. At the very least, we will have to find out what this means to traditional fishermen. Above all, what does “profitable” mean? Before telling anyone they have a right to a moderate livelihood, they have to at least break even. I want to know what the Department of Fisheries and Oceans estimates are. How much does a boat cost? How much does it cost to operate one? Since our fishermen live in poverty, that is, they rely on unemployment insurance benefits during the winter, I would like to know how the Department defines profitability. If we can't have the answer this morning, I would like departmental experts to come before the committee another time.

• 1040

[English]

The Chair: Mr. Bernier, your definition of a short question is different from mine.

[Translation]

Mr. Yvan Bernier: It's a notice of motion.

[English]

Mr. Patrick Chamut: Mr. Chairman, first of all, on the issue of what is a moderate livelihood, we've heard what the judgment says about a moderate livelihood. Our objective is not to sit down and precisely define what constitutes a moderate livelihood. Our objective is to work out practical fishing arrangements that will provide for aboriginal access to the fishery as a short-term arrangement to make sure we can manage the resource in an effective and responsible way.

The second issue is what do we mean or what are we talking about when we talk about an economically viable fishery. What Mr. Bernier is referring to are the remarks that were made about the outlook or the objective for the Atlantic fishery in general. Our approach has been to work toward a fishery that first of all is going to be sustainable. And by “sustainable” we mean that it will be sustainable in the long term, with conservation being the first priority of the department and those who are participating in the fishery. There have been a number of changes that have been introduced to make sure that conservation indeed is achieved.

We've also talked about a fishery that will be economically viable. The approach we're taking there is to ensure that those participating in the fishery are participating on the basis of a portfolio of licences that will allow them to survive upturns and downturns in the resource, because we know there will inevitably be those sorts of variations.

We are currently engaged in a process, which I believe members of this committee may be aware of, to try to put some more definition around what we mean by those particular statements about economic viability and what we mean by conservation and sustainable utilization. There's a group that's currently consulting with organizations in Atlantic Canada on an Atlantic policy framework. Through that exercise we hope to be able to provide more specific definitions of exactly what we mean by economic viability and also to provide a suite of strategies by which that objective will be achieved. We expect that the Atlantic policy review will be reporting in its first phase in the spring of the year 2000.

The Chair: Okay, I have four people left to raise questions. I think I've got everyone. I've got Mr. Carmen Provenzano, Mr. Stoffer, Mr. O'Brien, and Mr. Duncan. Did I miss anyone? Mr. Power. Okay, we need quick questions and quick answers.

Carmen.

Mr. Carmen Provenzano: I have a fairly quick question.

Obviously everyone agrees that the judgment provides some difficulties with interpreting things, like what is moderate, what is gathering, what is the extent of any regulation on this regulated right. It doesn't really matter what anyone in the department or anyone around this table or anyone anywhere says about how they would interpret those particular terms. We're going to have to wait until the courts of this land deal with that terminology and provide definition, or the process can be shortcut by a reference.

My question to the assistant deputy attorney general is, are these questions the proper subject matter of a reference to the court? Are the questions that arise from the judgment the proper subject matter of a reference? If so, what consideration and what steps are being taken to have that reference? Or are we going to have to wait until the courts, one by one, provide us with some definitions here?

Ms. Clare Beckton: Well, as you know, there is an ability to submit references to the Supreme Court of Canada, and the question of whether these are appropriate questions is very difficult to answer here. The question of whether there would be a reference or whether it's being considered I think is something that rests with the Attorney General of Canada. I will take your question back to her.

• 1045

The Chair: Thank you, Ms. Beckton.

Mr. Stoffer.

Mr. Peter Stoffer: In the form Mr. Wouters gave us, it says “We have a legal obligation to consult with Aboriginal people.” In the form you gave us, Madame Beckton, it says “The Crown... recognized the Mi'kmaq had a right to live in Nova Scotia in their traditional ways.”

Again, if I can't get the answer from you.... We can't get Mr. Justice Binnie here. He won't come. So my question again is, does the treaty apply to non-status aboriginal people, yes or no?

Ms. Clare Beckton: I don't think it's as simple an answer as that, because the courts, though not in this judgment, have talked about beneficiaries, and they refer to the modern manifestations of the collectivities that had the rights. In this case that would be in 1760, those who were beneficiaries of the treaty. So it is a matter of trying to ascertain who are the people who best represent that modern manifestation. That may include people who go beyond the bands.

Mr. Peter Stoffer: There were no reserves back in 1760. The judge says right here, the Mi'kmaq have a right to live in Nova Scotia in their traditional ways.

The assistant deputy attorney general can't answer what I think is a very simplistic question. Does it apply to non-status aboriginals?

Ms. Clare Beckton: I've just said the question of who are the beneficiaries requires further examination.

Mr. Peter Stoffer: By the court again.

Ms. Clare Beckton: No. What I have been saying here is that the courts look to the modern manifestation for the purpose of ascertaining who are the beneficiaries. There is a question, which will require further discussion and analysis, about who those beneficiaries may be. In other words, who are the modern manifestations of those treaties? It may very well extend beyond currently existing band members.

Mr. Peter Stoffer: Thank you.

The Chair: Mr. O'Brien, before you ask your questions, I don't want to lose something.

Mr. Provenzano had a question to you on the reference. You indicated you're going to talk to the Attorney General. Can you get back to us on that information?

Ms. Clare Beckton: I will undertake to speak to the Attorney General, but of course, as you can appreciate, a lot of the advice the Attorney General deals with is solicitor-client privilege. I will take this back to her and let her be the judge.

The Chair: You have a point of information, John?

Mr. John Cummins: The time for the intervention has gone by. They had 30 days after the decision. All they can do now is support the West Nova Fishermen's Coalition and try to broaden that question they asked the court.

The Chair: Mr. Provenzano's point was beyond that, was it not? Was it on defining some other issues?

Mr. John Cummins: Yes, and so it should. That's why I say the only chance I think they would have would be to support the West Nova Fishermen's Coalition, but to broaden the question they were bringing forward.

The Chair: So what information is available to you? Could you get back to us on that?

Mr. O'Brien.

Mr. Lawrence D. O'Brien (Labrador, Lib.): Thank you, Mr. Chairman.

It's great to see the political lineup here this morning. It's a full house, and so it should be. It's a very important issue and one that has implications throughout the nation.

I have a couple of questions, or points of clarification perhaps, to Mr. Chamut.

I know the greatest discussion vis-à-vis the Marshall case at this point in time has been specifically along the lines of lobsters, but it goes much further than that to include all types of fisheries. My understanding is the snow crab fishery this year will probably top $2.50 or $3 a pound. That's the reading I'm getting from the industry right now. And there's a crab fishery in the gulf as well, so that's of major concern. Then of course there are the other shellfish, scallops and so on, and then there are the finfish. So it's a much bigger issue—and that needs to be understood and clarified—than just lobsters in the bays of the Miramichi.

Mr. John Cummins: This side has already figured that out.

Mr. Lawrence O'Brien: Well, you haven't said much about it.

Mr. John Cummins: We don't need to.

Mr. Lawrence O'Brien: You don't need to? So it's not important to you?

Mr. John Cummins: Oh, it is very important.

Mr. Lawrence O'Brien: It is important to you.

An hon. member: We figured it out.

Mr. Lawrence O'Brien: You figured it out but said nothing.

The point I'm trying to make is, how is the department figuring all this in? It's obviously being figured in from a comprehensive perspective.

The other point is that there are fish upstream as well. I know we had a decision on Sparrow a few years ago that dealt with upstream and coastal waters fish, and we've been dealing with that through the aboriginal fisheries strategy, but does this latest Marshall case also have an impact on upstream fish? If it does, is it simply applied to the 35 bands concerned or, as pointed out, would it possibly have further consequences vis-à-vis non-status as well?

• 1050

The Chair: Mr. Chamut.

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

First of all, I agree with the consensus around the table that the judgment does apply to more than lobster. Certainly the focus in the initial stages has been on lobster, but we do anticipate that as we move forward to work out practical arrangements we will be working out arrangements that will provide access to all types of fisheries. That will be a topic of discussion when we begin our more detailed discussions with aboriginal groups. We think the focus will be much larger than looking just at lobster.

In fact, it seems to me to make sense that we would want to look at a broader suite of access to more than just one fishery, because otherwise there might be a very significant or disproportionate displacement of individuals in one fishery, and I don't think anyone is seeking that. So clearly we are looking at a variety of fisheries, which will be discussed as we work out these practical arrangements.

In terms of upstream fish, I'm assuming that you mean salmon that are migrating into fresh water as well as freshwater species.

Mr. Lawrence O'Brien: Trout and char.

Mr. Patrick Chamut: Yes, trout and the like. My understanding of the judgment is that the right that has been found is not a right that's limited to marine or coastal fish species. We would expect that this right could also be exercised with respect to inland species. There have been some indications of interest with respect to salmon. We have looked at all of those expressions of interest. Our primary concern with respect to those species, though, is the conservation needs. Our management to this point has been designed to ensure that conservation is not threatened through any aboriginal harvesting that may be contemplated.

The Chair: Mr. Duncan.

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

First, can either of you tell us whether this analysis of the judgment is a Department of Justice document or a Department of Fisheries document?

Ms. Clare Beckton: It was prepared by the Department of Justice.

Mr. John Duncan: I have another question for you as well. Several times this morning when you were being questioned, you responded that you really couldn't offer a response because you hadn't been there and you hadn't been a part of the court proceedings. Would that also imply that the department has no position or is that just your position on those same questions?

Ms. Clare Beckton: What I was saying is that I was not the counsel who personally argued the case and I do not have the intimate familiarity with the evidence presented in that case, which the counsel who argued the case would.

Mr. John Duncan: But you're here representing the Department of Justice. Surely the department must have a position on those very questions that were asked. Are you not here to represent more than yourself?

Ms. Clare Beckton: Yes, that is true. But by the same token, what was being asked was a matter of opinion, and we do not as a matter of course provide advice in the sense of legal opinions to parliamentary committees.

Mr. John Duncan: Would it be fair to say, though, that you do provide that very advice to the government?

Ms. Clare Beckton: The department's mandate is to provide legal advice to the departments of government.

Mr. John Duncan: Can I read from that that you're prepared to provide less to a parliamentary committee than you are to the government?

Ms. Clare Beckton: As you can appreciate, the advice that we provide to departments of the government is protected by solicitor-client privilege. What was being asked here today, I think, is really just a matter of opinion, that is, the questions that were put forward by members with respect to the interpretation of the evidence before the court.

• 1055

Mr. John Duncan: Right, but we're asking for a Department of Justice opinion, and we're not receiving it. We're receiving a response that you personally don't have an opinion. I find this very problematical. It leaves us to labour in somewhat of a vacuum that the government is not labouring under, and therefore the public is at a great disadvantage in knowing exactly how the government is positioning itself, and why. This is a long-standing problem. It obviously doesn't affect just this issue.

I asked for and received a Department of Justice opinion on a fisheries issue two years ago, but it was very much discretionary on the part of the minister as to whether or not he was prepared to do that. Why do we have to labour under that type of disadvantage as a parliamentary committee?

Ms. Clare Beckton: I'm afraid you're asking me questions that probably go beyond me in terms of the history surrounding the providing of advice to parliamentary committees. But I can certainly take the issue back and express your concerns to the minister, the Attorney General.

Mr. John Duncan: In summary, Wayne, I'd just like to say that I don't believe democracy is being served here. Let's just leave it at that.

The Chair: Okay, John, you've made your point.

Very quickly, Mr. Power.

Mr. John Cummins: Mr. Chairman, if we—

The Chair: No, I'll have to come back to you, John.

Mr. Power.

Mr. Charlie Power: Mr. Chairman, I think it's appropriate, as we're almost finished with our witnesses, that I should ask these individuals a question about geography, albeit it's not the question I asked last week, which was handled quite well and professionally by the minister. Everybody now knows where Newfoundland is in this great country.

The judgment by Justice Binnie refers to products of hunting, fishing, and gathering. They are basically migratory occupations, certainly in the very traditional sense. Has there been discussion within the department or advice from the Department of Justice on just how far these migratory claims might go? I mean, does a native person in New Brunswick now have the right to hunt deer in Nova Scotia and Quebec? Have you looked at the parameter of how far afield these migratory rights to hunt, fish, and gather could go?

The Chair: I don't know whether you can answer that, Pat.

Mr. Patrick Chamut: Very quickly, my preoccupation has been with fish. The question of migratory rights is not something that has yet been nailed down.

Mr. Charlie Power: No discussion on that topic yet?

Ms. Clare Beckton: I think that's a question we simply don't have an answer for at this time.

The Chair: Mr. Cummins, very short.

Mr. John Cummins: Mr. Chairman, as a quick comment on that, my understanding is that the natives are entitled to harvest in their traditional areas, but that has not been enforced in the Maritimes.

Mr. Chamut mentioned that others may attempt to use the rights gained in this Marshall decision. In particular, I think the natives of southern Vancouver Island, who are covered by the Douglas treaties, have indicated that they will want to harvest fish under this new-found right.

The question then becomes, who is going to get priority to harvest? Will it be natives harvesting under the Douglas treaties or natives harvesting under AFS regulations?

The Chair: Good question.

Pat, can you answer that?

Mr. Patrick Chamut: My understanding would be that the right....

Sorry, perhaps I can start again. I think I really need to be clear about the nature of the question.

First of all, I think Mr. Cummins is assuming that there is a right found for Douglas treaty bands to fish under the same types of arrangements as Marshall. In that context, my answer would be that, first of all, the aboriginal right to fish to meet food, social, and ceremonial needs is a priority right that is second only to conservation. The right that is found in Marshall is a commercial right, of a character that is probably more like the Gladstone right than it is the food right.

So in that continuum of assessment of rights, my answer would be that the food right would have the first priority and that commercial rights would be second to that priority for harvesting for food, social, and ceremonial requirements.

• 1100

The Chair: Bill, one final question.

Mr. Bill Matthews: Thanks, Mr. Chairman.

I've just been listening about the traditional hunting and fishing and gathering rights. Mr. Chamut, how long have natives been allowed to catch lobster? In this case, we're talking about lobster; we're highlighted by lobster. I don't think there's any traditional right for them to harvest lobster. It doesn't go back very far. Now, correct me if I'm wrong, but that's my understanding of it. It's not all that long ago that lobster was basically a trash fish. If you got it on a stick, you'd throw it away; you wouldn't keep it to eat.

Did DFO and Justice give any consideration to what really represents traditional rights, the traditional fishery, traditional harvesting along a species line? Salmon, yes; I can see salmon and maybe some others, but I don't think there's a long tradition for any of us in lobster, not a long one, certainly not from 1760.

So I'm just wondering what the government's response to that is. I think you know what I'm asking. I'm really surprised by the ruling and the interpretation of those traditional rights back to a 1760 treaty for something I don't think people ever utilized or ever caught or ever ate. I don't think this would even apply to a food fishery.

Those are my thoughts. I'd like to hear your response to them, because I've been deeply troubled by this ever since the judgment.

The Chair: Mr. Chamut.

Mr. Patrick Chamut: Mr. Matthews, I'll try to give a response as best I can, but I have to begin by saying that I have not done nor am I aware of any research that has examined the dietary habits of Mi'kmaqs dating back to the time of this treaty.

But I think we need to recognize that in these sorts of judgments the court has been quite clear: the right is not what we call frozen in time, so I don't think there would be any argument for saying that because lobsters may not have been eaten 300 years ago there would be a restriction in terms of aboriginal access to that resource.

Mr. Bill Matthews: How long have they been commercially fishing, then...?

Mr. Patrick Chamut: Aboriginal people would have been able to harvest lobsters commercially through access to a commercial licence for as long as we've had commercial licences. Their actual participation in the Atlantic fishery has been very low.

Mr. Bill Matthews: Right. That's my point.

Mr. Patrick Chamut: I think it was following the Sparrow decision that came down from the court in 1990 that a larger interest was expressed by aboriginal people in being able access lobster for food purposes. Probably around 1992 or 1993, we began to negotiate arrangements with aboriginal communities in Atlantic Canada which would provide them with access to lobsters for food purposes. Since that time, we have successfully negotiated agreements that lay out the amounts and the harvesting arrangements by which they will exercise access or harvest lobsters for food, social, and ceremonial requirements, as is in accordance with the right laid out in the Sparrow decision.

The Chair: Thank you, Mr. Chamut.

We are a little over our time and we do have a couple of motions to deal with. I'd just like to close with this for the department's benefit and, I guess, for the benefit of the justice department as well. There are a number of questions we raised here that we will be expecting the departments to get back to us on.

As chair, I can't overemphasize how important it is that we do have Mr. MacKenzie's terms of reference. I'm asked about it daily: what's his authority, what's his responsibility, what can he negotiate, how much power does he have? Those are very important questions that I think we as parliamentarians have a responsibility to answer. We do need those terms of reference with due haste. We will leave that with you.

Thank you very much, Mr. Chamut and Ms. Beckton, for coming here today on what is a very important issue.

After the steering committee the other day, there are a couple of things to report. I believe you have a witness list, which went around on the—

• 1105

Mr. John Cummins: Can I make an addition to that?

The Chair: Yes, I'll come to that, John.

This is just an initial witness list. We've raised a number of—they're listed on the paper there—organizations and the people that will be coming before the committee in the next week or so. We decided as well, as a steering committee, that we would recommend to the full committee that we do travel to Atlantic Canada on either the week of the 15th or the 22nd, more than likely the 22nd. But because Parliament hasn't been operating long enough and the budget liaison committee is not in place as yet—and won't be, I gather, until the Senate is back—we do need a motion of the committee to request an order of reference to travel and hear the numerous interested parties who are involved in this.

So perhaps somebody wants to move that motion.

An hon. member: I so move.

The Chair: Seconded by John Duncan.

(Motion agreed to)

The Chair: You wanted to speak, Mr. Bernier?

[Translation]

Mr. Yvan Bernier: I want to know whether the steering committee can review routine motions, procedural matters, speaking time, notices of motion. Will we discuss this now, as I had asked at the last steering committee meeting, which was held in your office?

[English]

The Chair: Yes, we can look at that in a moment, Yvan.

The second issue is the request that because of the interest in Atlantic Canada and Gaspé region—indeed, right across the country—on this issue, we broadcast committee meetings. The motion is that the House, pursuant to Standing Order 119.1(1), authorize the Standing Committee on Fisheries and Oceans to televise the meetings between October 28, 1999, and December 17, 1999, during its study on the implications of the September 17, 1999, Supreme Court decision on R. v. Marshall and the management of fisheries in the Atlantic region.

Does somebody want to move that motion?

Mr. Lawrence O'Brien: I so move.

(Motion agreed to)

Mr. Lawrence O'Brien: You're going to go for the Centre Block Railway Committee Room, perhaps?

The Chair: There are two possibilities. Do you want to explain that?

The Clerk of the Committee: We need this motion.... The only room we can televise in is Room 253-D, and I know the transport committee and the finance committee have done that. To televise in another committee room you have to get a House order. So we're going to seek that order of reference from the House to give us permission to televise in one of the other committee rooms.

The Chair: I question why the finance committee is so important.

Mr. Lawrence O'Brien: [Inaudible—Editor]

The Chair: In any event, do we need a motion on this travel budget? The travel budget, by which we would go to Nova Scotia, New Brunswick, P.E.I., and Quebec region and hold hearings for a full week, would be for $123,018.

Do we have a motion that the travel budget be adopted?

Mr. Carmen Provenzano: I so move.

(Motion agreed to)

The Chair: Now there is the issue that Mr. Bernier brought up. In the original meeting we adopted the standard—

Mr. John Cummins: Did you want to finish this issue off with this list and then go on to something else?

The Chairman: Yes, sorry, John.

Before we get to that, can we finish the witness list?

[Translation]

Mr. Yvan Bernier: Wayne, I apologize for bringing up these details. Included in the three issues I raised, was the fact that I said I would cooperate with the committee, on the condition that the committee cooperate with me. The issues we are discussing were submitted in English only.

[English]

The Chair: We're going to deal with that—

[Translation]

Mr. Yvan Bernier: According to the rules, official documents must be submitted in both languages. I could therefore ask you to provide these papers in both languages. I'm willing to cooperate, but I want to be sure that I won't be shortchanged like the last time.

If everything is approved this morning, it would be futile for me to raise the other points I want to discuss because no one will be left to discuss them. This document is not legal. We shouldn't even be discussing it. I'm willing to help you, but help me to help you.

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[English]

The Chair: Okay, point taken. We'll come back to elaborate on that in a moment, Yvan.

On the witness list, John, that's what you wanted to bring up?

Mr. John Cummins: Yes. I was going recommend that on that particular day when we have Professor Patterson in, you also invite Professor David Bell. He's an historian and law professor at the University of New Brunswick, and I think you will find that he has considerable to offer on this issue.

The Chair: Can you send that over to the clerk, and the clerk will communicate with him to see if that's possible.

Mr. John Cummins: Absolutely.

The Chairman: Now, on Yvan's point on translation, Yvan, I can't argue with you. The point has been made that it isn't translated.

On the timing of questions, you had a concern that you raised with us following the initial meeting, when we set out the rules of procedure for the committee. You weren't here at the time. We adopted the procedure that was in place last time, which was ten minutes for Reform, five for Bloc, ten for Liberal. We got into that kind of regimented fashion of questioning rather than just the call of the chair.

Do you want to raise your point here?

[Translation]

Mr. Yvan Bernier: We had to live with those rules last year since we were not able to amend them. Because of the tension we were experiencing last year, we had to make do. The last time we wanted to amend the rules of procedure this year, the bells started to ring to summon us to the House. I did not think that the committee would sit, but I learned later on that you did have the time to start the meeting one or two minutes before the bells went off, and I was told that you had the right to do so, which meant that I could not speak to the issue. I appreciate the fact that I can do so today.

When we hear witnesses, particularly those who represent the Crown, it breaks the flow of questions from the opposition. The liberals don't seem to be able to air their thoughts in caucus, so they do so in a forum usually reserved for the opposition. I had asked you and the clerk to see how the other committees functioned. Based on what I heard, we are the only committee to operate this way, that is, to alternate between the government and the opposition. The finance committee seems to be working well, and I would like us to study their model. The Official Opposition, the Reform Party, gets the first 10 minutes, then the Bloc Québécois gets 10 minutes and the other parties, the Conservative Party and the NDP, get five minutes each. Only then, does someone from the government get to ask a question. I would like us to adopt that system.

I'd also want to raise the issue of notices of motion. In my opinion, 48 hours is too long. I would like a notice of 24 hours, the way it used to be.

These are my two first points.

[English]

The Chair: On procedure, we have looked at some of the other committees and it differs from committee to committee. You're right in terms of the finance committee, Yvan.

What are other people's views on that? Originally, at least in my time on the fisheries committee, we weren't looking at it necessarily as opposition members and government members; we were looking at it as members who were very interested in the issue and wanting to question the various witnesses, whether they were government or not, and try to have some balance. I don't know. What are other people's views on it?

Mr. Bill Matthews: Mr. Chairman, it seems Yvan's contention is that it breaks the continuity or the flow of the opposition members. My experience is that it seems to flow very well. Of course if there's no difference in time.... Personally, I don't care if the opposition goes ten, ten, five and five, and then we take the rest of the time or whatever. That doesn't bother me. But quite often, from my own perspective, I'd flow into the questions asked by other members, as I did the other day.

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Yvan, are you saying, then, the time that we now get after all of you have your time...? I have no problem with it, Mr. Chairman, if that's what he is suggesting.

The Chair: John, then Yvan.

Mr. John Cummins: The issue is, if the committee is going to work as a committee, then to some extent distinctions between government and opposition should be softened. This morning there were some very good questions on this issue from the government side. I thought they were penetrating questions, and they were honest questions, seeking good answers.

So I wouldn't prioritize in that sense: that government questions are just there for the sake of asking. I thought the thing worked well and I don't have a lot of problems with it if it continues that way, if the committee works like it should and leaves the partisanship at the door and tries to get to the bottom of the problem. I don't have a problem with flipping from side to side then.

The Chair: Yvan.

[Translation]

Mr. Yvan Bernier: The committee has always found a way to respect the spirit of its work. I think what sets the members of this committee apart from other committees is that they are the free thinkers of their respective parties. It doesn't matter if Bill is red or blue, as he used to be, he's still the same old Bill. However, Bill, you do recognize that if you get 10 minutes after the opposition spoke for 15 minutes, it won't be as bad for you as for Mark Muise and Charlie, who had to wait a long time this morning. Some days I find we wait a long time.

I'm raising the issue now, while everyone is still getting along. Let me remind you that the committee will also study the Coast Guard. Some issues will be made public a little later in the year. I would like us to relax the rules of procedure on paper while there's still a good working atmosphere. I've always worked well with this committee in the past. When we studied subjects which affected one area more than another, I often gave my party's time to members from other parties, be it the Reform Party or even the Liberal Party. The same favour was also granted me in return.

I'm also raising the issue in a broader context. The other committees use our motion, which is 10 minutes for Reform, five for the Bloc and five for the Liberals. Since we are the exception, I would like us to copy the way the other committees work. That way, there won't be any undue pressure. Let me repeat, I would like us to operate the way the finance committee does.

[English]

The Chair: Mr. Gilmour wants in, and then Mr. Power. Yvan, I think we've had two meetings as a new committee in which we're really under the pressure of time, both with the minister having to leave at one o'clock and the deputy minister having to leave early today. I think the Liberals did take a little bit of a hit in their ability to question, because in order to get all opposition members in, I didn't allow them their full time. I think that's fair and I think it's at the discretion of the chair to do that. We're showing that we're making every effort, at least when there are government representatives on, to ensure that all opposition parties have a chance to raise questions.

Mr. Gilmour, then Mr. Power.

Mr. Bill Gilmour: Thank you, Mr. Chairman.

I've been on committees that have operated both ways. I just came off the environment committee, which was alternating back and forth, which is my preference. What has happened is that there have been occasions when the person asks a question and then leaves. I've been in situations where all of the opposition side has gone, having asked their questions, and it doesn't bode well for the witnesses who, many times, have come a long way.

So I prefer the bouncing back and forth. It keeps the balance within the committee, because people sometimes haven't asked their questions and they want to stick around.

The Chair: Mr. Power.

Mr. Charlie Power: Wayne, I support what Yvan is saying in the sense that sometimes.... I remember a few times last year when I filled in on the fisheries committee for our Conservative fisheries critic of the day with some real pointed and direct questions for government officials, and I found that in my position, being from the fifth party, I didn't get a chance to ask those questions. I know our former fisheries critic wanted those questions asked to the government officials.

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We don't want to see that happen, so I think we should make sure that the—

Mr. Lawrence O'Brien: Who was that?

Mr. Charlie Power: I don't know. Some guy—

The Chair: That's the difficulty of being the fifth party, Charlie. That was the problem—not the procedure.

Mr. Charlie Power: We're trying to change it, if some fellows would stay where they are—or where they were.

But I do think, Mr. Chairman, that if we're going to have officials and ministers and what else here, each opposition party should certainly be allowed to ask questions. I know that didn't happen on a couple of occasions. If there are going to be time constraints on our witnesses, maybe we should either do what Yvan says or we should abbreviate the amount of time given to each group so that we can all get a little shot at whoever happens to be here.

The Chair: I think we can handle it. Unless we get notice of a motion, Yvan, to change the procedure, I think we can handle it as we've done today. We did provide some flexibility and nobody challenged the chair on it.

We could possibly go Reform, Bloc, Liberal, then Reform, NDP, Conservative, and then two Liberals. We could go that way, but I think the current procedure is working not too badly. If you want to change it, propose a motion and we'll deal with it at a future meeting, but I think we'll try to be fair along the basis that has been done. Is that okay?

Go ahead.

[Translation]

Mr. Yvan Bernier: At our next meeting, I will table a notice of motion calling on our committee to copy the way the finance committee works: 10 minutes for the Reform Party, 10 minutes for the Bloc, five minutes for the Conservatives and five minutes for the NDP.

Mr. Chairman, let me remind you right now that I have the right, without tabling a motion, to demand that no document be distributed to members if it is not available in both languages as of this moment.

[English]

The Chair: That's your right to do so. That's part of committee procedure. If you want to propose a motion, we'll see where it goes, Yvan.

On the 48 hours' notice, did you have anything further to add on that?

[Translation]

Mr. Yvan Bernier: It's the same request.

[English]

The Chair: If there is unanimous consent of the committee, a motion could be presented today, but it requires unanimous consent. Otherwise, it's a 48-hour notice.

With that, we're going to a steering committee for a few minutes. The meeting is adjourned.