STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, November 22, 1999

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[English]

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

I think it's pretty well known, but for the record, the order of the day is that pursuant to Standing Order 108(2), the Standing Committee on Fisheries and Oceans is studying the implications of the September 17, 1999 Supreme Court decision, R. v. Marshall, on the management of fisheries in Atlantic Canada.

I welcome everyone here. It's especially great to see individual fishermen out here this morning.

There are quite a number of presentations, and we're going to have to keep a pretty tight timeframe, with each presentation down to half an hour. That means about a seven-minute opening statement by presenters, and then we'll go to questioning from members.

I welcome our first group of witnesses, the Malpeque Harbour Authority. I'm not sure who's making the presentation, but we have Chris Wall, Paul Pickering, Greg Hébert, and Ewen Clark.

I might say that from talking to some of the people here this morning, I know there are a number of written submissions. They are to be tabled with the desk out front, and they will be translated and given to committee members. I know some people worked late into the night getting those done.

Chris, you're on.

Mr. Chris Wall (Member, Malpeque Harbour Authority): Thank you, Mr. Chairman.

Welcome to Prince Edward Island, members of the Standing Committee on Fisheries and Oceans. It truly is a good process that brings members of Parliament to coastal communities such as those along our shore.

Some of the members of the standing committee are well known to the fishing community as strong and fair voices. We hope we can work together, along with all affected parties, toward a fair and workable solution to the issue of native participation in the fishery.

It is to our disadvantage that we are presenting this brief to you at this date, being so close to the recent Marshall clarification. We would have wished for more time to properly assess these new implications. We also apologize for not having our report translated into French for the French-speaking members of this committee.

Native fishing is not a new issue for the fishermen in and around Malpeque Bay. For many years bona fide licensed native fishermen from Lennox Island successfully fished the waters in and outside the bay, side by side with commercial fishermen, lobster being the key fishery. There was no question of natives having access to the fishery. Fishing out of season or beyond the restrictions of the fishing regulations was not approved by commercial fishermen from both the native and non-native communities.

In recent years the Charter of Rights has redefined the relationship our country has with the aboriginal communities. The courts have awarded food and ceremonial fisheries and other treaty rights that have resulted in an increase in pressure on the local lobster stock but fly directly in the face of the hard-earned conservation measures fishermen have fought for over the years. The recent additional fishing effort is being seen as a step backwards for the fishery.

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There is little question that in recent years native fishing efforts have impacted on our stocks. A harbour-by-harbour breakdown of landings for our lobster fishing area, LFA 24, shows a proportional decrease for Malpeque Harbour since since the advent of extra native fishing efforts in Malpeque Bay.

This fall, the Marshall decision has created an even greater increase in fishing effort. The unregulated nature of the current native fishery is not what was intended with the Supreme Court decision. Our government and our community can no longer pretend that the fisheries can withstand the additional pressure. This cannot possibly be ignored any longer. We can address this problem effectively and quickly, or we can watch yet another fishery collapse due to human disregard.

In April 1998 the Malpeque Harbour Authority had the privilege of presenting a brief to this same committee at this same location. At that time, we asked the committee to recognize the uniqueness of Malpeque Bay to the lobster fishery. Malpeque Bay is an extremely complex and important area for the lobsters. Its shallow waters warm quickly in the spring, and lobsters migrate toward the bay to shed. Injured lobsters, with one or both claws missing, go there to heal. More importantly, lobsters only breed at that time.

Many fishermen have been pleading with DFO for years to protect these lobsters and close this bay to fishing during the soft-shelled season in late June. This strategy is successfully in place in the Magdelen Islands, where their lagoons are closed areas. DFO rejected our conservation initiative. Instead of being further protected, Malpeque Bay is now fished heavier than ever.

Our lobster season closes at the end of June and that was once the end of fishing pressure on the lobster. Now these lobsters are under heavy native fishing pressure until the water cools off and lobsters quit trapping in the fall. What was started under the honourable guise of a food and ceremonial fishery has exploded into an unregulated and unsustainable native commercial fishery.

Fishermen from Malpeque Harbour support much of the work that has been done by the Fishing Industry Alliance. These seven points were discussed and approved by members of the alliance prior to the recent clarification delivered by the Supreme Court. The first principles of the alliance are included as a separate document with our submission. We feel that the following points merit special emphasis:

...there is no ability to accommodate further capacity in the fishery. In some sectors, there are ongoing DFO-funded programs to reduce industry capacity. In many fisheries, the existence of overcapacity is clearly recognized.

Patrick Chamut, assistant deputy minister, fisheries management, of the Department of Fisheries and Oceans, told this committee that “lobster, along with virtually every other fishery in Atlantic Canada, is fully subscribed”. We agree entirely.

Number 5 states:

The treaty rights awarded by the Supreme Court were negotiated by the British Crown. It is the federal government, as successor to the British Crown, rather than the fishing industry, that must meet the costs associated with the 1760 treaty. The fishermen and processors who have built the existing industry cannot bear this cost.

Under the recent Marshall clarification, the question that must now be asked is whether the federal government neglected its obligation to conservation by allowing an out-of-season fishery to take place, and if so, are commercial fishermen entitled to compensation for the loss of future income.

Number 7 states:

The industry alliance supports the growing demand for a stay of the Supreme Court decision in order to provide time for clarification of major questions related to the decision....

There still remains uncertainty regarding non-status Indians with this decision. That reason alone is important enough for a stay to be requested by the Government of Canada.

The 1995 report of the FRCC on lobster conservation, entitled “A Conservation Framework for Atlantic Lobster”, was well prepared and credible. It contained many good points that rang true for many fishermen. On page 20, it recognized our concerns of woefully inadequate enforcement measures. It recognized that “industry and management may have been unjustifiably downplaying the impact of excessive fishing efforts”.

Especially regarding the aboriginal fisheries, it made clear that DFO, commercial fishermen and aboriginal fishermen must significantly improve communications. On page 23, also concerning aboriginal fishing, the council recommended that all fisheries should take place under the same conservation framework.

We support these recommendations and urge the Standing Committee on Fisheries and Oceans to strongly endorse them as well, in the hope that they may play important roles in the future of our lobster fishery.

In closing, we would like to make the following recommendations to this committee.

First, we would like to make a request that federal fisheries officers from this area be subpoenaed to appear before your committee. We understand you have the power to do so and believe their appearance would give this committee a better appreciation of the present situation with regard to the food fishery.

There seems to be quite a difference between what we feel officers are observing in the field and what Ottawa bureaucrats and politicians believe is occurring. Our government does not hesitate to put bullet-proof vests on these men and put them in the centre of turmoil. Let not this committee hesitate in asking these individuals directly what they are experiencing, by way of in camera interviews.

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Second, a separate food fishery beyond the commercial season is seen as difficult to manage and harmful to stocks, and therefore it must not take place outside of a lobster management plan. DFO is obligated by the clarification of the Marshall decision to regulate a closed season for “conservation or other purposes”. The court notes that the broad regulatory authority may extend to the native fishery. A reference is made to the protection of spawning grounds. This reinforces our position that the food fishery must not continue.

Third, in the Marshall decision the traditional species, eel, was being fished by traditional methods. It has not been proven in the courts that lobsters are included in the treaty rights. The Supreme Court states each fishery must be treated on its own merits. We do not feel that the treaty rights for fishing lobster for food or commercial purposes exist. Why is the food fishery for lobster occurring at this time, with the consent of DFO, when no court has recognized that the treaty right to fish lobster exists?

Fourth, there is a dire need for more protection officers. As the P.E.I. Fishermen's Association recently stated to this committee, twenty years ago there were six full-time vessels patrolling the waters off our island; today there is one. In light of the recent Marshall clarification, perhaps it is now time for DFO to redirect money from the aboriginal fishing strategy, aimed at buying out commercial fishermen, to rebuild its protection branch. Regulations are useless without enforcement and protection.

The Supreme Court has clearly stated that the federal government has a legal obligation to regulate treaty rights. The federal government is not obliged to turn over the country's resources to native communities. If the government's agenda continues to promote the transfer of resources to native communities at the cost of diminishing our coastal communities, we insist that implications of these actions be addressed.

We feel that DFO should revisit the aboriginal fishing strategy. The Supreme Court has indicated that DFO is not obliged to continue the transfer of commercial fishing licences to natives. If, however, it is the federal government's agenda to continue this transfer as a matter of public policy, we have the following concerns.

First, as you are well aware, the government has turned our harbours over to the fishermen. This is a financial burden that will only increase if fishing gears are removed from our region. Future discussions may be required to determine the sustainability of our harbour.

Second, in order to retire commercial gears from the fishery to make room for native commercial fishing, the government must be prepared to make serious financial restitution to our fishing community. There is little incentive for a fisherman to consider early retirement with an offer of recent fair market value alone. Early retirement will mean a loss of future income, and this must be recognized if buyout packages are to succeed.

This harbour authority represents 45 core fishermen whose livelihoods are dependent upon a properly managed fishery. We hope these recommendations will help us all move toward a sustainable fishery for the new millennium.

Thank you.

The Chair: Thank you, Chris. There's an attached paper to that. What does it signify?

Mr. Greg Hébert (Member, Malpeque Harbour Authority): It gives the seven principles.

The Chair: Thanks.

We'll turn then to Mr. Cummins.

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

I'd just like to say I think this brief is outstanding in its detail and in its sensitivity to the issues. Given the short amount of time since the Marshall decision has come down, the references you make to it certainly show an insight into the industry and the decision itself. I compliment you on it.

One of the themes that seems to be underlying your presentation is problems you may have had with this food fishery, and the impact it could have on the commercial industry itself. I wonder if you could give the committee just a little background on that problem, as you see it.

Mr. Chris Wall: I would like to redirect that question to Paul if I could.

Mr. Paul Pickering (Secretary, Malpeque Harbour Authority): The way we see it, John, I guess anybody in this room who has a commercial fishing licence can tell you that lobsters migrate to Malpeque Bay in the late spring, early summer. In the last week or two of the lobster season they begin to shed, and once they shed and have a soft shell, they breed.

After they breed it takes about nine months for them to actually have eggs under their tails. Although the lobsters that are taken all summer long do not have any eggs under their tails, they are next year's spawning stock.

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If you added up the length of time it takes, you'd see the lobsters that mate in July and August would have eggs on them the following May. We feel that if these lobsters are taken out of the system, we'd be throwing them over next spring with eggs on them. I think this is breeding stock or spawning stock for future generations.

Mr. John Cummins: So what you're saying in essence is that then the lobsters are being harvested in a spawning area.

Mr. Paul Pickering: In a breeding area where they're later spawning.

Mr. John Cummins: You commented as well in your brief about woefully inadequate enforcement measures. I wonder if you would care to comment on that as well. Are you referring simply to enforcement measures during the regular commercial fishery, or this a year-round problem where there may be this other activity going on with the food fishery and so on?

Mr. Paul Pickering: I think year-round, but especially in the summer. The local fishery officers seem to have their hands tied when it comes to enforcement throughout the summer months.

Mr. John Cummins: Are you suggesting then that there are problems for example with this food fishery we've talked about? Are the numbers that are reported, the catch that's being reported, being accurately reported? Or is the reporting of food catch inadequate either because there's no DFO presence or the DFO presence has been delegated to another authority such as a fisheries guardian and the records aren't being kept adequately? What's the story on that?

Mr. Paul Pickering: To our knowledge, the conservation end of it is put in the hands of the native guardians. As far as the count goes, John, I don't think it's an accurate count by any means. It doesn't consider the lobsters that are sold up the road, the catch of eels and so on.

Mr. Chris Wall: I'd like to interject here if I could.

Talking about enforcement, I've personally been fishing for six years. I've only been boarded once by a fisheries officer. We've never had our catch measured or checked for buried females or undersized lobsters.

It's such a rarity to see a fisheries officer that actually last year they pulled up alongside us for the first time and I took a picture of them. They were in a boat that would better serve in a small bay or lake. It was certainly not a boat for the open water. It had no way to haul traps other than manually, and I don't imagine you're going to haul too many sets of four traps from a depth of 40 or 80 feet to check them.

We're talking about a serious lack of manpower as well as a serious lack of vessels and equipment to capably do the job. As well, there seems to be some direction from Ottawa that there will not be charges laid even in something like the native food fishery that we had to put up with this summer. There was 80,000 pounds with the quota. There was some discussion as to the amount. We feel that amount is more like double the 80,000 pounds. We've seen directives from DFO Moncton that instructed officers not to press charges for small lobsters or buried lobsters.

So what's the point of the commercial fishermen abiding by these rules if they're thrown out to the native community and they don't have to abide by them? If you have no penalties, what's the point of following the rules?

The Chair: Mr. Cummins, your last question.

Mr. John Cummins: Mr. Chair, I'd like to observe that the same scenario is reported consistently in British Columbia. I think it's something the committee should take under advisement. It's the lack of enforcement effort at this time and also a seeming lack of will to enforce the laws with regard to some sectors.

The last question I'd like to ask you about is this ability you mention in your brief about DFO being obligated by the clarification of the Marshall decision to regulate a closed season for “conservation or other purposes”. Your recommendation, as I take it, from your brief would be to strongly recommend the closure of Malpeque Bay during spawning season. Would it be extended as well simply to the closure of that bay entirely? What are your views on that?

Mr. Chris Wall: That's a hot potato topic.

We're certainly not against closing the bay off, but what we're scared of seeing is the bay closed off and then the natives continuing to fish the bay. If it's going to be closed off, it has to be closed off for everyone. And as far as extensions after June 30, the end of the legal season, we're definitely against extensions, because by that time the lobsters are starting to moult and we'd just as soon be out of there on June 30. And we expect all fishermen, native or non-native, to be out of that bay after that date.

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The Chair: Thank you.

Chris, you mentioned that there were some directives from DFO in Moncton relative to enforcement. If you have any copies of that information, at any point in time, we'd appreciate receiving them.

Mr. Chris Wall: I don't have a copy with me.

The Chair: No, but if you can just forward it to my office for the clerk later, we'll have a look at it.

Mr. Chris Wall: Okay.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier (Bonaventure—Gaspé—Îles-de-la- Madeleine—Pabok, BQ): I would like to welcome to the witnesses. I will be brief as I know that many MPs have questions.

If I understand correctly, you feel that the presence of Aboriginal people creates a cohabitation problem. But what I find interesting is what you say at the end of your document, that if the government wants to continue to favour the presence of Aboriginal people in the fishery industry, it should use adequate financial means to encourage fishermen to willingly opt for retirement. This is the message you would like to send to the government.

Are talks currently underway with the negotiator of Fisheries and Oceans? Have the members of your committee, who are fishermen, discussed the issue to learn who would be interested in taking a voluntary retirement and what sort of financial means would be requested by the retirees? I find this subject interesting because, on one hand, everyone is aware that a certain number of fishermen should retire, but on the other, we haven't yet seriously discussed the matter.

[English]

The Chair: Who wants to take it? Ewen.

Mr. Ewen Clark (Member, Malpeque Harbour Authority): I don't think we have a problem co-existing with the native fishery. That is not a problem as long as everybody fishes under the same rules and regulations and the same seasons.

The government is going to have to have fairly deep pockets, I think, if they expect someone to step out of the fishery where they make their livelihood and take an early retirement. I don't think there's anybody in our particular harbour who wants to retire right at this time. And I think if the government wants someone to step aside they're going to have to have a generous compensation package and maybe tax incentives for upping the capital gains or something along those lines to entice people to step aside out of the fishery.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier: To continue along the same line of questions regarding the other transactions, did some fishermen sell their licences to their sons, neighbours or brothers-in-law over the past few years? How much is a bona fide lobster fishery licence worth here in Malpeque? Please tell me, even though I am a grown man, because I am from Quebec, and the cost of a licence there might not necessarily be the same as here. I would like to know how much a licence costs here.

[English]

Mr. Ewen Clark: I would think it would be, for the piece of paper only, $250,000 to $300,000.

Mr. Yvan Bernier: Would you please repeat that, but into the microphone, as I can't understand what you're saying. We are recording your answer.

Mr. Ewen Clark: I would think that the price of a lobster licence, right now, would be somewhere between $250,000 and $300,000 for the piece of paper, for your licence only, without any boat or gear or equipment.

The Chair: Mr. Assadourian.

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

At the outset, I am saying that I feel like I'm the odd man out here, because they are from the west and the rest of them are from the east and I'm from central Canada.

I have a couple of questions. You made the point about Mr. MacKenzie being the mediator. Could you elaborate on or explain your position with regard to Mr. MacKenzie? Have you ever had a meeting with him or has he approached you? That seems like the process with Mr. MacKenzie.

How many traps do you use here for lobster? How many of them are natives' and how many are there in the commercial fishery? Can you give us some indication as to the number of traps being used?

And when you say “generous compensation”, what kind of money are we discussing here? Can you give us some indication of what you mean by generous compensation?

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Mr. Greg Hébert: I think I can do this.

The Chair: Go ahead, Greg.

Mr. Greg Hébert: First of all, in regard to MacKenzie, I think it's been made quite clear that he wants to deal with the native interests in this case, and that's why there was another gentleman assigned to deal with the fishermen.

As far as the number of native traps versus the number of—

Mr. Sarkis Assadourian: So Mr. MacKenzie is allowed only to deal with the natives—is that what you're saying?

Mr. Greg Hébert: It seems that he's having direct contact with the natives. Our position is that having placed another individual between us and him has given another opportunity for our views to be translated once before they actually reach him. So we're not too pleased. I think you'll find throughout the commercial fishery that we'd like to have direct contact with him instead of having a second man we have to deal through.

Mr. Sarkis Assadourian: My question was why did you avoid discussing this issue in your recommendation?

Mr. Greg Hébert: Why do we avoid discussion of the issue?

Mr. Sarkis Assadourian: Yes, of MacKenzie's mediation.

Mr. Greg Hébert: At this point the recent Supreme Court clarification has indicated that DFO has every right to regulate things. I think at this point in time maybe negotiations were put on the front burner a little too quickly. As a whole, the government proceeded to say you have the right, now let's sit down and talk very quickly about getting these rights put in place without actually questioning whether or not the Supreme Court ruling actually did give them the rights. So to us it was a moot point that we didn't deal with in the presentation.

The number of native traps in the Malpeque area I think everybody can agree is something of a mystery, because it is such an unregulated entity. It seems they can put as many traps in as they wish. It's not so much the number of traps, though; it's the timing of the traps being in the water and the sensitivity of the area that's in question here.

Through the season of May and June in and around the Malpeque area there are about 90 commercial licences on the go. That would be 27,000 traps. The math is right off the top of my head.

Mr. Chris Wall: According to that, if there are the 90 then roughly we'll say 27,000 traps. If the natives are in there fishing, of course everyone knows that after the lobsters have shed and moulted and they're hungry, they come out of the mud and they're starving and they trap extremely well, probably ten times better than what they fish outside where we would be fishing. So what may sound like a native person fishing 10 traps is actually more like 200, basically, because of the time of the year it's taking place.

Mr. Sarkis Assadourian: So of close to 27,000 traps, 200 by natives only.

Mr. Chris Wall: That would be each native supposedly fishing 10 traps, so I'm saying 10 traps in the summertime is like 200 in the springtime. The lobsters are hungry, they're starving, and they're being fished out that easy.

The Chair: Let's be clear on that, Sarkis. The traps are trapping at a much higher rate is the key point. One trap at a certain time of year is equivalent to 10 at another time of year. So you can't tell by the trap numbers.

Mr. Sarkis Assadourian: So it depends on the season.

The Chair: Did you have any other questions?

Mr. Sarkis Assadourian: Yes.

What's the fair value of compensation for you?

Mr. Chris Wall: I think the going rate for a licence on the fair market value right now would be around $300,000, and could be more than that, depending on the type of boat and the amount of gear. It's not very enticing to sell back to the government if you only have a $100,000 capital gain and after that the government takes 47%. So basically you could be selling a $300,000 outfit and only be putting $200,000 in your pocket. If you're a few years away from retirement, $200,000 doesn't last very long now. It's certainly not much of a retirement package.

Most fishermen are fishing because they like to fish, so they're not just going to go and sell their licence out of the goodness of their hearts, probably.

The Chair: Mr. Stoffer.

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

The Chair: That's what happens when the NDP starts, Peter. The whole place falls apart.

Mr. Sarkis Assadourian: There's a message for you, Peter.

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Mr. Peter Stoffer: First of all, I wish to publicly thank the parliamentary secretary from Labrador, and the chairman as well, for working so hard within the Liberal government in order to shake, rattle, and roll the various people who made the decision for us to travel in the maritime region. It's a good thing to do that, because it's important to hear what the fishermen and their organizations are saying.

First, I want to thank the members present, and obviously the people behind you, for an excellent brief. I think it was very well done.

The question I have is whether there are any aboriginal people on the board of the fishery alliance that you're talking about.

Mr. Paul Pickering: The Atlantic Fishing Industry Alliance?

Mr. Peter Stoffer: Yes.

Mr. Paul Pickering: I don't believe there are. Are there, Ewen?

Mr. Peter Stoffer: Why not?

Mr. Greg Hébert: Because I think the alliance was formed in response to this decision. The government took the initiative to say that the natives had the right and now it's time to sit down and negotiate it. The alliance was basically formed in Nova Scotia. There was no central voice for the fishermen or the fishing community, so the alliance was born at that time.

Mr. Peter Stoffer: Okay. You say in point 7 that the fish alliance wanted a stay on the decision. There's where I have a fundamental disagreement with you, because I believe that once the Supreme Court makes a ruling.... The Supreme Court, even in their clarification, sort of slapped everybody in the head and basically said “You idiots, this is the job of Parliament. This is a job of parliamentarians to ensure that the regulations and legislation are in place to benefit the majority of this society. It's not the job of the Supreme Court to keep doing this.”

Three straight decisions have ruled in favour of the aboriginal people. You go to Sparrow, you go to Delgamuukw, and now Marshall. Surely, parliamentarians and all members of Parliament, from all the political parties, have to start reading the message. It is up to us to put the regulations and legislation in place, and to hear information from you. So I would disagree with you on that point of view.

Mr. Chris Wall: I'd like to interject if I could for a minute. Basically, I think some of us hoped for a stay because the government had shown a fundamental lack of leadership. There has been lack of leadership definitely from DFO. We've been working toward conservation measures for years, and then in one swipe, we had them all thrown out the window and had a summer fishery opened up. We're looking for leadership. That's what we're here for. We're not politicians, but it seems like we have to turn into politicians to try to fight the government on this issue. They seem to have a hidden agenda to work against us, and we're hoping they will come out of the closet and do some good for us.

Mr. Peter Stoffer: I certainly can't echo those sentiments any stronger than what you've just done. I want to thank you for that.

How much illegal fishing is going on now that is non-native? Do you have an indication? I know in the Digby area, the Southwest Nova area, and in my area, the Eastern Passage area, there's a fair amount of illegal fishing going on that is done by non-natives. In your estimate, do you guys know what goes on in the water, how much illegal fishing is going on by non-natives?

Mr. Ewen Clark: In our area there would be none. We work with DFO. After our season, we go out and drag for gear and make sure there's no gear, nobody's out poaching, and there are no traps that got chased off that are ghost fishing. We put an effort into that. Police officers will tell you that there's no problem in our direct area. I think in other parts of the island there might be some problem with that, but there's none in our area.

Mr. Peter Stoffer: The reason I ask is that you've indicated that there are not enough enforcement officers, and I agree with you. There are very few. We have a thousand people working for DFO in Ottawa, and I can assure you nobody's fishing lobsters in the Rideau Canal. We need to have the management and the people out in the areas in order to ascertain the concern.

So you can claim with certainty that there's no illegal fishing going on by non-native people in this area.

Mr. Ewen Clark: No. In our area, we take care of it ourselves. DFO had to come to us after our season to give them a hand and make sure that nothing—

Mr. Chris Wall: They're working in boats like this, so it's pretty hard to do a job of enforcement with a little vessel like that. They rely on us.... How many people look forward to seeing the police or the fisheries officers come toward them? We're asking for more. We don't want to have the responsibility left up to us. I'm sure that's what the department is for.

Mr. Peter Stoffer: I have a last question for you. Bernd Christmas, as you know, is a lawyer for the group that's fighting in order to ascertain the native fishery, or at least the input of the native fishery. He said quite clearly in one of our sessions that he has no problems at all fishing under the same rules as everybody else, as long as the aboriginals are at the table and part of the negotiating process. Would you agree with that?

I can actually envision the end of the food and ceremonial fishery, eliminating that—which you have a grave concern for. And I admit, you have grave concerns because of the fact that if you trap off season, you're going to trap a lot more effectively than you will on season. Would you not agree, then, if the aboriginal people were at the table coming up with the regulations, the stipulation of carapace size and season, etc., that eventually, with them fishing, the need for the food fishery could actually be diminished or eventually eliminated?

• 0935

Mr. Ewen Clark: Nobody has any problem with it. It doesn't matter to me who fishes beside me.

Mr. Chris Wall: We're all Canadians. Let's fish under one set of rules.

Mr. Ewen Clark: It doesn't matter who's in the next boat, just as long as they're fishing under the same rules, regulations, and seasons as I am.

You were talking earlier about the number of traps being fished by the commercial sector versus the natives. I am allowed to fish 300 traps for two months of the year, May and June. But if it weren't for conservation reasons, I would much rather fish 50 traps for six months of the year. I can make more money; I can make a better living at it. You were questioning how many traps the different people are fishing here.

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

The Chair: Mr. O'Brien and Mr. McGuire, one question apiece.

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

I want to thank you for your excellent commentary. It was very clear, and I think the discussion has been quite good.

The point I want to pick up on is that you talked about a stay. That discussion went on for some time, and the Nova Scotia coalition fell for that. But I think the clarification that came down just recently probably put some logic back into it. We can probably pick up from that, and I think that's the discussion. I think it is clear now, as it relates to the role of DFO previous to the initial judgment on September 17. From that point, I'd like to think that we're moving forward.

The issue of concern here to me, as a member of this committee and as a representative of the government, has to do with something I think you made a very good point on, which is the enforcement side. I share your view. There's no point in having a quota, of having x number of fishers taking so many fish, if it's 50% more or whatever the case might be because of lack of enforcement.

I agree with Mr. Cummins that we should focus this issue as a committee and look at it from the point of view of where we're going, because we've got MacKenzie and Gilles Thériault doing their thing right now, and MacKenzie is supposed to and will take an active role, not only on the native side, but in both aspects of the fishery. And they are not one subjected to the other, they are partners, Mr. Thériault and Mr. MacKenzie.

But the enforcement aspect is an issue throughout all the fisheries, in my view. I see it in my own riding of Labrador. We see it wherever we go, whether it's Atlantic salmon or lobster or whatever. So I think it's important to visit it. That's more of a comment I'm making than a question.

Before I carry on, I want to put it back into your lap again, Chris, and ask what you see as a fair process of enforcement. What level do you think it would take to warrant subjecting it to a regulated fishery?

Mr. Chris Wall: Basically there have to be the same rules for everyone, native or non-native. I'm not really sure how to answer that question, in a sense. The FRCC has been after us to double egg production, and it's been reported here, it's been implemented by DFO. We work toward those measures with an increased carapace size, but at the same time you have the natives going into the bay and taking large amounts of bred female lobster out of the system, and it's a farce. A lot of fishermen have lost respect for the department.

We've seen cutbacks—less and less every year. We just want to see some effective vessels on the water and more manpower. Free up those officers to be out on the water; it's no good having them in the office. There's no point having rules if they're not enforced.

• 0940

I'm not sure if any of the other fellows can expand on that.

The Chair: Can I go to McGuire?

Mr. Lawrence O'Brien: I'll be very quick.

The Chair: Okay, good, because we're running out of time.

Mr. Lawrence O'Brien: It's very fair that MacKenzie and Thériault intend to visit this issue and really put the microscope to the issue of enforcement.

Ms. Chris Wall: That's definitely true. I think one of our recommendations was that local fisheries officers appear before this committee. I think if you really wanted to get your eyes opened and get a true picture of the situation, it would be well worth your while to invite them to appear before this committee, without the fear of repercussions, because what they see is certainly not the message Ottawa is getting.

The Chair: Mr. McGuire.

Mr. Joe McGuire (Egmont, Lib.): Thank you, Mr. Chairman.

I'd like to pose a question on the amount of effort the Malpeque Bay area can sustain. As you know, most of the fishing was likely going to take place in Malpeque Bay. If it were dispersed around P.E.I., the number of natives in the fishery would have insignificant impact—if it were spread out to the whole north shore, for example. But that's unlikely to happen, in view of the fact that Lennox Island is in Malpeque Bay, and they're more than likely going to fish out their back door, rather than go down the coast or whatever.

And there's also this part of the judgment pertaining to moderate living. How much of a moderate living do you think should be taken out of the lobster fishery, vis-à-vis other fisheries? If the main effort's going to be in the bay, how much effort can that bay sustain, in your opinion, before you'd have to go outside the bay for other fisheries to attain a moderate living?

The Chair: Does anybody want to take that one?

Mr. Ewen Clark: I don't think anybody has come up with what a moderate living is yet. The Supreme Court hasn't, DFO hasn't. I don't think Mr. Easter or anybody else wants to touch on what a moderate living is, let alone us.

Mr. Chris Wall: If you look in court cases that have been brought forward, even the federal government's position is that it's impossible to enforce a moderate livelihood. And basically, there should be no fishing in that bay after the end of June to start with. It's so hard to regulate. There are cash sales, and no one knows for sure how many lobsters are taken out of that bay, so it's impossible to police that moderate livelihood. That discussion should never take place, in my opinion.

Mr. Joe McGuire: So in your opinion we shouldn't be talking about moderate livelihood at all. We should set that aside, and have a certain number of traps taken out of the bay on one side and put into the bay on the other, and that should balance it out. Is that...?

Mr. Greg Hébert: I don't think that's the consensus among the commercial fishermen at all. The moderate living thing applies if this treaty right does apply to lobster. It hasn't been proven to do so yet. I think at this point conservation has to be the key issue, and right now we have an unregulated loot fishery taking place outside of the regulations of the commercial fishery, and it's jeopardizing the stocks completely. And it flies in the face of the FRCC. Their recommendation was that we increase egg production by five times, and we're going backwards on that. We're not making any strides toward it.

The Chair: Thank you, gentlemen.

You have the last question, John.

Mr. John Duncan (Vancouver Island North, Ref.): Thank you very much for your presentations.

In regard to this question about inviting the fishery officers to testify before this committee, I do want you to know that we made that request, and it was not looked upon well. But we're going to be pushing the issue, certainly from this side, in terms of...[Inaudible—Editor]...and possibly protecting their testimony.

I would like to ask you if you have a wish list of questions we should present to them. That would be very helpful, and perhaps you could sketch some of that out for us right now. You must believe that they have information we don't know about that would be very helpful. What kind of information are you talking about?

Mr. Chris Wall: Well, we'll put a list together for those officers. I'm sure they are indeed the front-line workers and enforcement officers. They know exactly what's going on. We can sit here and tell you what we believe is going on, and I'm sure they'd have basically the same or maybe a little bit different take. The enforcement officers are there to carry out the duties of the Fisheries Act, and those regulations are put in there for conservation. Basically, with the native fishery taking place, all those regulations are kind of thrown out the window.

• 0945

Mr. Greg Hébert: Just to follow up on that, as to some of the things you could be asking them directly, one is the actual catch...[Inaudible—Editor].

The second one might be the attitude of the native fishermen in general for the conservation. Are they there to take what they can when they can, or are they there to act as responsible keepers of our resources?

The third one might be to get the enforcement officers' opinions on what DFO's actual policies are in regard to enforcement. There are regulations in place. Are they being told behind closed doors, “Don't make any comment to the public, but don't enforce a thing”?

I think those are some issues that have to be addressed.

Mr. Paul Pickering: It is possible, too, that the native guardians who work there as well have a different story from the local fishery officers from our area.

The Chair: Okay, we're going to have to move on to the next witness.

On that last point, on enforcement officers, how that can be handled is being considered. If you can document a list of questions that you think should be raised with them, send it to the clerk of the committee, and he'll give that list to all committee members.

With that, I would certainly thank you gentlemen for a very articulate presentation.

We'll call on the Native Council of P.E.I., Valerie Chisholm and Michael Gallant. Who is going to make the presentation? You, Valerie?

We have only about seven minutes for the presentation, and then we'll go to questions. Could you highlight your presentation, Valerie? Keep it as short as possible.

Ms. Valerie Chisholm (President, Native Council of Prince Edward Island): It's pretty brief anyway.

The Chair: Okay, fire away. You're on.

Ms. Valerie Chisholm: Good morning and welcome to traditional Mi'kmaq territory. Thank you for giving the Native Council the opportunity to speak here today.

My presentation will be very brief and very general, but I can answer specific questions when it's finished.

Over the last 500 years or so, many things have changed for the indigenous people on Turtle Island, which may be more familiar to you as North America. The onslaught of colonialism has proven to be quite devastating for native people, but our perseverance is testimony to our strength of character. It is an indication of our strength of mind, body, and soul. We're a proud nation with time-honoured tradition.

Our ancestors hunted in these forests, fished in these rivers and oceans, and gathered berries, fiddleheads, and other necessities for 10,000 years.

Our history is etched in the red earth that is Abegweit. It is etched in the hills of Cape Breton Island and around the shores of Machias. Our history takes us to the summit of Mount Sagamaw and along the shores of the Bay of Fundy. It is held in the hearts of our people, expressed through our stories, our ceremonies, our songs and our memories.

Our ancestors roamed these territories in relative peace. They were a patient people who welcomed strangers with open arms. They were good-natured people who loved to sing, dance, and tell stories of the old ones. They loved and respected this land and all life that emanates from it, and it is the same way today.

• 0950

When the Supreme Court of Canada recognized the aboriginal treaty right to harvest traditional necessities in order to procure a moderate livelihood, there was great rejoicing among the aboriginal people. Our most recent ancestors have committed us to a life of negotiation with the crown, and our patience was paying off. But the unfortunate events that unravelled in the ensuing days brought to light some extreme attitudes of distrust, fear, and animosity.

It was said that if our aboriginal people are allowed to access the commercial fishery, they would put the stocks in jeopardy. It was said that we should use spears and canoes like they did way back when the treaties were signed. Well, you know what? Our people still do that. When Donald Marshall Jr. was fishing for eels, he did use a spear. Those ways are still present today.

It was said that only aboriginal people living on the reserve could exercise their treaty rights to hunt, fish, and gather to secure a moderate livelihood. It has been disheartening for me to hear about the experience and to find out firsthand the kinds of prejudicial sentiments that only serve to exasperate the situation even more. There has never been, nor will there ever be, any doubt in my mind that the members of the Native Council of Prince Edward Island are the heirs of the traditional undisplaced original inhabitants of this land.

Living on an Indian Act reservation is not a prerequisite for being a native person. How soon we forget that it was only a few years ago that our grandmothers, mothers, sisters, daughters, and aunts were being stripped of their rights as aboriginal people, banned from living in their communities and forced to establish a new existence with others who met a similar fate. What the government could not do, however, is strip them of their pride and of their aboriginalness. Once a skigin, always a skigin. No piece of paper, or lack thereof, will ever change that fact. That is why the Native Council of Prince Edward Island says we do not need to live on Indian Act reserves in order to exercise our treaty rights to hunt, fish, and gather.

We do believe, as is the tradition of our people, we will determine who and what constitutes our community. We do believe we must work together with our brothers and sisters in reserve communities to ensure the rights of all our people are upheld and exercised safely. We do believe, ultimately, that respect for what is harvested is our main priority. However, I realize your most important priority is implementing positive strategies that allow native people to access these resources without jeopardizing the interests of those people who currently make a living in the industry.

Before we make any major decisions regarding the implementation of any management structures, guidelines, or definitions about “moderate livelihood”, we must consult with all our people. As the federal government has found it necessary to conduct consultations with all parties who have addressed interest in this matter, it is equally necessary for our council to hear the concerns and listen to the wealth of knowledge our people have concerning this issue. This is their way of life. It is doubly necessary for me because I need to understand and incorporate those views of the community before I can make any decisions on their behalf. This too is the way of our people.

We can, however, offer some immediate advice that we believe can be implemented at the federal government level.

First, ensure the continued existence of the current aboriginal fisheries strategy in some way or form. This agreement has proven to be positive to the development of guidelines in human resources and is a good model from which we can work to develop future management regimes.

Secondly, conduct a comprehensive review of the current fishing seasons, as identified by the Department of Fisheries and Oceans. A number of sources indicate that the seasons within which we currently fish are not necessarily based on data related to stock.

Thirdly, establish an immediate quota on the number of pounds of lobster non-native fishers are allowed to take during the season. If there is a need to conserve the stock and there is concern that those stocks will be depleted, the non-native fishers have the same responsibility to ensure the continued existence of those stocks.

Fourthly, distribute financial resources to all parties in order to conduct comprehensive research and community consultations. We need to know how many people will exercise their right to hunt, fish, and gather in order to procure a moderate livelihood. We need to know how they intend to exercise this right. We need to ensure that the information they are provided with is accurate and does not have any detriment to any of the species they are harvesting, whether it be fish, game, and fowl or herbs, berries, and medicines.

• 0955

We hope positive dialogue and a firm commitment to working together by all parties concerned will bring about implementation of fair and practical solutions that benefit all of society.

Since this ruling does open the door for our members to hunt and gather as well as fish for a living, we must be prepared to accommodate their interests and to do everything we can to facilitate more economic development activities, over and above those related to the fishery.

The Native Council of Prince Edward Island is prepared to work hard at educating ourselves. In the process, we hope to educate the native and non-native community as well. We look upon this challenge with great pride. We hope the work we do brings about positive change and fosters mutual respect among all of our people, native and non-native alike.

The rest of my presentation is the interim position of the Native Council and some interim guidelines we prepared.

You have a copy of those already, Mr. Easter, and you can just look at those as you will.

The Chair: Thank you, Valerie.

We will turn first to Mr. Duncan.

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

Good morning. I'd like to ask you about your comments regarding your community. You obviously have major problems with the way the Indian Act imposes the chief and council system, but I don't really want to get into that; I understand that argument. But you do say in your presentation that you will determine who and what constitutes your community.

Ms. Valerie Chisholm: Right.

Mr. John Duncan: I guess the difficulty that I and others have is this: who can make a binding decision for your community?

Ms. Valerie Chisholm: Our community.

Mr. John Duncan: Yes, but what authority does the community have? What we've heard from other witnesses before the committee, from the Mi'kmaq and the other groups, is that there's nothing to prevent an individual from challenging the authority of their own...any restriction placed upon your community by the management regime can be challenged at any time because there's nobody who's recognized as being able to make binding decisions.

Ms. Valerie Chisholm: Well, that probably is the same with the Indian Act governments as well. If the people feel this is an individual right they can exercise on their own, there's nothing that band chiefs and councils will be able to do either. You need to have the trust of your people. You have to put in place management regimes that respect all aspects of the fishery and of gathering and hunting. You have to consult your people so that they know that the guidelines, rules, regulations, and monitoring activities you put in place are ones they can live with.

We have a fair majority of those management guidelines in place right now. We've already conducted some initial discussions with our community. They're very happy with what we've come up with to date. As long as you work in conjunction with the people that are directly affected by this ruling, then, I believe, you will have their trust in order to be able to regulate and monitor their activities.

Mr. John Duncan: In historical terms, prior to 1968 there was no limitation on an individual entering into the lobster fishery. Essentially, anyone could get a licence at any time. Would you agree that the only restrictions, really, that are of concern to you have occurred in the ensuing 31 years?

Ms. Valerie Chisholm: I don't believe I understand what you mean.

• 1000

Mr. John Duncan: The question is related to access to the fishery. For a nominal fee, anyone could purchase a licence in the lobster fishery up until 1968; it's only been a limited-entry fishery since that time. In other words, all people had equal access up until that time. Are you arguing for priority access or are you arguing for equal access? I guess that's the basic question.

Ms. Valerie Chisholm: Priority access has already been established with the fishery for food, social and ceremonial. Equal access, I think, would be determined by the amount of people who want to get involved in fishing for a moderate livelihood. That's what we don't know yet. We don't have a lot of people knocking down our doors who want to get involved in the commercial fishery. If they haven't done so to date, they probably will not want to do that.

Equal access? Yes, certainly, equal access if that's what the community determines they want to happen. I don't think we could even begin to acquire equal access to this fishery, because the amount of aboriginal people who want to get involved is very minuscule.

The Chair: Last question, Mr. Duncan.

Mr. John Duncan: In your brief, one of your recommendations talks about conducting a comprehensive review of the current fishing season. Now I know you're trying to tell us something, but I can't read into the recommendation exactly what you're trying to tell us.

Ms. Valerie Chisholm: In the initial discussions we've had with various parties, including the Atlantic Veterinary College, they talked about DFO deciding what the seasons would be—not only AVC but various other people as well—based on the number of enforcement officers they have available in that area at the time. That has nothing to do with the stocks that are present. I know that traditionally the spring and summer months have been the time when lobster is harvested. But we're not just talking about lobster. We're talking about other species as well.

The Chair: Thank you, John.

Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I would like to welcome the witnesses.

First, I would like to inform them that when the Marshall judgement was announced, it took everyone by surprise—as much the traditional fishermen as the non-traditional fishermen or the Aboriginal people they represent.

One thing comes to mind. Even if mistakes were made in the past, Canada has existed for more than 240 years. You must understand that fishermen, at least those I represent in my part of the country, that is, Gaspésie in Quebec, believe they shouldn't have to pay for those mistakes. As a result, the Canadian government is holding audiences here today to try and understand and to help move things along.

My question relates to the fourth point of your claim. You mention distributing resources to all parties. How will you accomplish this, how will you communicate and consult with your Aboriginal communities in order to establish a decent subsistence level?

As I understand it, you state in your document that you will have to consult with people in your community. We ourselves will have to consult with the fishermen. How will you determine what constitutes a decent subsistence level? Which issues will be addressed? Will the subsistence level be presented in financial terms or will it be a description of the indispensable material needs of someone living at the dawn of the year 2000?

Could you give me a general overview of these points? This is the fuse that set off the bomb, please forgive the expression. You must specify your needs and we must verify that we have the means to satisfy them all, or to confirm that doing so is the best course of action.

• 1005

Could the witnesses provide more information about the issue?

[English]

Ms. Valerie Chisholm: When we're looking at this issue, I think we should keep in mind that the median income in Prince Edward Island is $46,000 and start from there. A lot of what you are identifying as being necessary in order to figure out what a moderate livelihood is are exactly those types of things that we need to be looking at as well.

I think the Supreme Court has identified quite clearly that it's to procure the necessaries of life: food, housing, clothing.

How do you provide that? When you look at it in terms of the non-native fisheries and the lobster fishery, do we look at it in terms of what some of those fishermen are making? Is that a moderate livelihood? I don't know. It's quite a substantial livelihood in some cases and it's not enough in others. There has to be a happy medium where you can say this is what you need in order to...especially when you're living in communities where housing is a problem, where unemployment is a problem. You look at those types of things.

One of the things the Supreme Court also said was that they wanted to engage in this trade with the aboriginal people in order for them to not become a burden on society. I think it's quite evident that aboriginal people have, to a certain extent, become a burden on society.

If we have the opportunity to exercise our rights in order to procure a moderate livelihood, whatever that may be, then we have to do our best to ensure that what we put in place allows our people to continue to provide for the needs of their families and their children.

I know there's a lot of discussion that needs to happen. I have the same questions, and I look to the people that are in the native council communities to answer those questions for me.

The Chair: Mr. Matthews.

Mr. Bill Matthews (Burin—St. George's, Lib.): Mr. Chairman, I have a commentary first.

It seems to me that you talk about native people being a burden on society. Well, if we allow an already fully subscribed fishery to be further subscribed, aren't we taking a big gamble that we're going to put other people who are making a living now into the same situation and position you say your people have been in for years?

That's the sort of problem I see us getting into here. If we put more people into a fishery that's fully subscribed, conservation won't be the number one priority for any of us, and we're going to cause a big problem for the commercial fishermen as well as the native fishermen. How are we going to do that unless we take some commercial fishermen out of the fishery? How are we going to allow more people into a fishery that's already fully subscribed?

We all say that conservation is our number one priority, but how can it be if you're going to fish year-round, if more of your people are going to fish commercially? How are we ever going to accomplish that unless the Government of Canada comes up with a big buyout program for some of the commercial fishermen? Can you respond to that?

Ms. Valerie Chisholm: One of the first things I would say is that right now in the non-native fishery there is no quota on the amount of lobster they can take in that one-month period. As a result of that, you have a small amount of fishers who are taking a very large number of lobster and making very large amounts of money.

Further to that, we're not only talking about the lobster fishery. We're talking about various other aspects whereby people can make a living if they choose to do so—by hunting and gathering, for example. There are berries, herbs, medicines, and teas. It's not just about the lobster fishery.

And I think that if we are all are concerned about conservation, then maybe we should start thinking about limiting the amount of lobster that can be taken out of the water.

Mr. Bill Matthews: Period.

Ms. Valerie Chisholm: Yes, period.

Mr. Bill Matthews: Are you telling me you don't believe in a regulated fishery to the point that there shouldn't be a season?

Ms. Valerie Chisholm: No, I didn't say that at all.

• 1010

Mr. Bill Matthews: From what I've heard here this morning, you are obviously taking lobster outside the season when the commercial fishermen take lobster. I thought I heard that correctly.

Ms. Valerie Chisholm: The Native Council of Prince Edward Island has not taken lobster outside of the seasons identified by DFO at this point in time. Their members have not fished out of season.

Mr. Bill Matthews: So who has then? What I heard here this morning is that they're taking lobster in the soft-shell period. Who would be doing that?

Ms. Valerie Chisholm: I have no idea. Your guess is as good as mine.

Mr. Bill Matthews: Well, I guess there's no point in pursuing it, but either we believe in seasons or we don't. That's my view. In my part of the country, in Newfoundland, we have lobster season. I'm not saying that no one fishes outside the season, but hopefully they get caught if they do.

Our lobster fishery is reasonably strong. Lobster seasons are obviously set for a very good reason, and it must have to do with reproduction and conservation. To come here and hear that people are fishing outside of season just throws me for a loop if we're all serious about conservation. I'd like to get an explanation, if possible, because in my view the court has been very clear that this is to be a regulated fishery. Part of a regulated fishery is a defined season that no one fishes outside of. How do you respond to that?

The Chair: Ms. Chisholm, if I can interrupt for a second, I do know you operate under a management plan in terms of the Native Council. Maybe it would be useful if you explain to Mr. Matthews how you do manage the fisheries you're in charge of now.

Ms. Valerie Chisholm: We have an aboriginal fisheries strategy agreement with the Department of Fisheries and Oceans. We have a number of commercial licences in the eel, clam, oyster and lobster areas. We fish within the guidelines identified by DFO now. It's similar to the way the non-native fishery is run.

In response to your question earlier about how you do it if you're concerned about conservation, one of the things the Supreme Court decision said in its clarification was that if conservation is at risk, yes, regulation of the fishery must exist. It does say that quite clearly in the clarification. If conservation is at risk in the lobster fishery, then all people who are fishing should make really damn sure those stocks are not depleted. I have just as much concern about that as you do.

The Chair: Mr. Stoffer.

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

We heard earlier about the lack of enforcement and the need for extra focus on that. I must say it's always great when the government side realizes there is a problem, especially when we mentioned it in our east coast report. Thank you for the light turning on over there.

Thank you for your presentation as well, Valerie. Basically, a quick comment is that I guess you believe the Marshall decision applies to non-status aboriginals as well.

Ms. Valerie Chisholm: Completely.

Mr. Peter Stoffer: You know Bernd Christmas well. He indicated to the committee that he has no problems at all about advising the people who are under this treaty, under the Marshall decision, that it applies only to status aboriginals. That was his clarification of it. And he also said he has no problem at all with fishing under the same rules and regulations as everyone else, as long as aboriginal people are at the table. Would you agree with that?

Ms. Valerie Chisholm: I would agree with the second comment, but certainly not with the first. I think this issue of status and non-status is something totally unrelated to the rules and regulations. It's not status and non-status, it's those entitled to be registered and those not entitled to be registered according to the Indian Act, and we all know the Indian Act was not in existence at the time of the signing of that treaty.

Mr. Peter Stoffer: Very good.

In your follow-up presentation that you presented to us, it says “Conservation has always been and will forever continue to be our most immediate concern.” In the interim guidelines, you say—and I won't use the word “fishers”, because I prefer to call them fishermen, for both men and women—“They will be able to fish in whatever area they deem to be appropriate, respecting conservation.”

If there is already a plan for a conservation area from Malpeque or another area—and these plans take a long time to develop, they're just not done overnight, because it takes a lot of pulling and tugging on each side to come up with a conservation plan—would it not be advisable for you to recommend that they abide by those particular conservation guidelines?

• 1015

Ms. Valerie Chisholm: We have those in place now with our aboriginal fisheries strategy agreement. For some of those ones, especially in relation to Atlantic salmon—and we know those stocks are very low—we would advise our people not to sell salmon for commercial purposes. Like I said before, we may not just be talking about lobster.

Mr. Peter Stoffer: My last question for you relates to what Mr. Duncan said earlier. Prior to the interim fishery allowing limited access to the fishery, there was an opportunity when literally all people in Prince Edward Island could apply to get a lobster licence. In Nova Scotia, I believe it was $25, so it was fairly cheap years ago to get any access. Did aboriginal people consider at all accessing what was everybody's right to the fishery at that time? If not, why wouldn't the aboriginal people at that time have had access when it was everyone's right to apply for a lobster licence?

Ms. Valerie Chisholm: I think my comment to that is that aboriginal people have been fishing without a licence for centuries. I wasn't there at that particular point in time, so I don't know why they didn't apply for a licence. Perhaps it was because we feel we traditionally did not need the permission of the federal government in order to exercise that right to fish and hunt and gather.

Mr. Peter Stoffer: Thank you.

The Chair: Thank you, Mr. Stoffer.

This is your last question, Mr. McGuire.

Mr. Joe McGuire: I know the aboriginal food fishery in Lennox Island is an 80,000-pound fishery for this year. What is yours, what does it include besides lobster, and how many people actually participate in the food fishery?

Ms. Valerie Chisholm: The commercial licences that the Native Council has right now are wild crab, lobster, mackerel, groundfish, scallops, squid, swordfish, clam, oyster, and eel. Under those, there are varying.... In lobster, we have two commercial fishing vessels that have 300 traps each, and they're both on the south side. We have one mackerel licence and one groundfish licence. We have 146 people who are using those commercial licences.

Mr. Joe McGuire: You have 146?

Ms. Valerie Chisholm: Yes.

Mr. Joe McGuire: Out of how many?

Ms. Valerie Chisholm: That's out of 500, and we fish within the guidelines that are identified by the department.

Mr. Joe McGuire: So your commercial fishing licences follow the licensed fishery. Out of what harbours?

Mr. Michael Gallant (Vice-President, Native Council of Prince Edward Island): They're down around the Launching Bay area.

Ms. Valerie Chisholm: There are lobster licences.

Mr. Michael Gallant: The lobster licences are in Launching, and the—

Ms. Valerie Chisholm: I have them identified here. We have one licence in area 12, and in areas 13, 14, 15, 16, and 17. They're all identified. The licences are all over the island.

The Chair: Thank you.

Mr. Cummins, you have time for a very short one.

Mr. John Cummins: Thank you very much for your presentation this morning.

The latest Marshall decision talked about earning a moderate livelihood, but it also described the right as a communal right. Generally, when the decision first came down and we thought about the notion of a moderate livelihood, we thought about it as applying to an individual. Is it your impression that this discussion of a moderate livelihood is talking about a moderate livelihood for a community? If so, how is that community defined? Does it restrict “moderate livelihood” as only taking into consideration income from fishing, hunting, and gathering, or would “moderate livelihood” take in other income as well?

This is not clear to me. It may not be clear to you either, but that's not a crime. It's something that has to be explored. I just wonder what your comments are on that at this point.

Ms. Valerie Chisholm: My personal feeling is that it is a community right exercised by individuals. Each of those individuals has the right to procure a moderate livelihood. If those individuals are in a family of five, per se, and they are not the lone providers in the family, the definition of how much they can earn in the fishery would probably change as compared to the family whose only income is derived from the fishery. Those are the types of questions we need to define, and we hope to do so with those community consultations.

• 1020

I think it's very important that we look at whether or not people are prepared to enter the fishery by either having the gear and the equipment.... As far as my personal feelings are concerned, it's very important that those people who are entering the fishery do so keeping in mind that they're not out to make a lucrative living from it.

The Chair: Thank you, Ms. Chisholm and Mr. Gallant. We will have to cut it there. Thank you very much for your presentation.

Ms. Valerie Chisholm: Thank you.

The Chair: Next is Abegweit First Nation, Patrick Augustine.

Mr. Augustine, maybe you could introduce the people with you so we have it on the record. I believe you have a submission, and then we'll go to questions. Thank you and welcome.

Mr. Patrick Augustine (Band Adviser, Abegweit First Nation): Thank you.

With me is Joseph Knockwood, who is presently employed with the Department of Fisheries and Oceans as an enforcement officer, and Chief Francis Jadis.

The Abegweit Band consists of three Mi'kmaq communities: the Rocky Point, Scotsfort, and Morell Reserves. Mi'kmaq have been residing in the traditional district of Epekwit aq Piktuk since creation.

After the colonial period, traditional lands were granted to absentee landlords. Mi'kmaq had become a homeless people in our lands. Through the patronage of the Aborigines Protection Society, some semblance of ensuring the reserving of “Indian lands” was done without assistance from the colonial government. After the federal government assumed responsibility for Indians in 1873, the transfer of this trustee relationship did not occur until 1912.

Chief Baptiste Lamourne, a representative from Epekwit, had signed a series of treaties in 1760-61 with Governor Lawrence.

The beneficiaries of the recognized treaties are the descendants of all those treaty signatories, regardless of their traditional districts. Interpretation of the beneficiaries are the present band councils. We acknowledge the present registered members as interim beneficiaries. However, we believe the Mi'kmaq Nation determines their own membership. Until such time as another court case defines who the beneficiaries to the treaty are, the Abegweit Band supports that all band members are entitled to the treaty fishery.

Mi'kmaq are given nothing through the Supreme Court of Canada's Marshall ruling—nor does the treaty. We have rights tied into Mi'kmaq title of unceded lands and resources. The treaty of 1760-61 only acknowledges our right to hunt, fish, harvest, and trade. It saddens us greatly that it took more than 238 years for Canada to admit its treaty obligation. Having been denied our resources for so long, we do not appreciate Mi'kmaq being negatively portrayed in the present inequities of the industry.

Treaty interpretations are biased and one-sided, with the Supreme Court acting on behalf of the Canadian government. Has the Mi'kmaq Nation been allowed the opportunity to interpret the treaties? What has become of partnerships, of dealing nation to nation? Treaty activities are broader in the Mi'kmaq interpretation; and through Marshall, Canada has a much narrower focus.

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A moderate livelihood would be similar to the livelihood of non-aboriginal fishers in similar industries. Inequities in resource access should not be of further harm to the Mi'kmaq through the imposition of inequities to our livelihood.

To ensure any further erosion of our treaty rights does not occur, the Mi'kmaq must participate in the development of policy and regulations. Mi'kmaq must also be involved in their enforcement, to expose the true threat to conservation and the sustainability of the resource.

According to the Supreme Court of Canada:

The Minister's authority extends to other compelling substantial public objectives which may include economic and regional fairness, and recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups. The Minister's regulatory authority is not limited to conservation.

Where is the fairness when aboriginals have been excluded from trade in the resource? Where is the recognition of the historical reliance and participation of the Mi'kmaq in the fishery?

Through a communal decision, the Abegweit Band agreed to limit its rights under the Sparrow decision. This self-imposed will to fish lobster commercially within a regulated season was a goodwill gesture to create cooperation within the fishery. Years of struggle to enter the lobster fishery were futile, after our fight to protect our fishing grounds were ignored in favour of those grounds we helped to save.

With the self-imposed regulations to fish within a commercial lobster season, for which we had acquired a commercial lobster licence, we were denied access to the north side of the island.

Fears are spread by those misinforming the public. Fears that natives will exploit the resource and that all non-natives want to see is that the Mi'kmaq fish under regulations, with licences and during seasons, are hiding the true intentions of excluding natives, based on greed.

Abegweit Band attempted to fish under a licensed and regulated season, yet we were still denied access to the resource. Is this how we will be treated when we exercise our treaty rights to fish for a moderate livelihood?

The Mi'kmaq are willing to enter a treaty fishery guided by conservation concerns. Past experience of denied access, economic and regional disparity, and refusal to recognize the Mi'kmaq historical reliance and participation in the fishery only compounds our mistrust in any government negotiations to access the fishery.

Fisher organizations, the political leadership, and related interest groups must all accept the eventual entry into the commercial fishery by the Mi'kmaq Nation.

The Chair: Thank you, Mr. Augustine.

Mr. Duncan.

Mr. John Duncan: Good morning.

In your comments you talked about waiting for another court case to determine who's eligible for treaty rights. Is that really your posture, that you're going to be reliant on the court to determine in which direction you go?

Mr. Patrick Augustine: That seems the way things are headed when we attempt to practise our rights. Through our tradition we have had an understanding of what is involved in the treaties, and every time we tried to exercise our rights it would always be challenged. It's just recently that these rights have been acknowledged. This treaty didn't give us anything we didn't already have.

Mr. John Duncan: In your comments you talk about having been denied the resources for so long. I don't know if you were here for my questions of the previous group, but prior to 1958, can you tell me how you were denied access when anyone could hold a lobster fishing licence, for example, for a nominal fee?

• 1030

Mr. Patrick Augustine: Say that again.

Mr. John Duncan: How were you denied access to the resource prior to 1968, when anyone could hold a lobster fishing licence for a nominal fee?

Mr. Patrick Augustine: We weren't required to fish with licences. It wasn't stipulated in the treaties that we required a licence to fish.

Mr. John Duncan: In your comments you talked about wanting to fish to make a moderate livelihood. I think everyone's struggling with what that translates into.

Previously I asked a question about who can make a binding decision for your community. Can I ask you the same question I asked the last group? Who can make the binding decision for your community?

Mr. Patrick Augustine: The decision would be from the community, represented by the chief in council. The chief in council would express the intentions and will of the community.

Mr. John Duncan: For clarification, is that the chief in council, as empowered by the Indian Act?

Mr. Patrick Augustine: At the local level.

Mr. John Duncan: Okay. Those are my questions for now.

[Translation]

The Chairman: Mr. Bernier.

Mr. Yvan Bernier: First of all, I would like to thank the witnesses for coming to meet us this morning. I will try to be brief since I know that the other MPs want to ask many questions.

I will start by commenting on something that was said earlier. When you answered Mr. Duncan, who had asked you how you had been prevented from fishing or what had stopped you from starting to fish commercially at the time, you said that you hadn't known that you needed a fishery licence because it isn't written in the treaties that you need one.

This brings me to the principle on which the Supreme Court based its judgement. The Supreme Court declared that we should allow aboriginal communities sufficient resources so they can provide for their needs. The judgement also used the expression “modern times”. What I wish to understand, because I recognize that the root of the problem is a mistake made in the past that infringed on the rights of Aboriginal people, is how, in these modern times, in the year 2000, two peoples, two nations, the Mi'kmaq and Canadian nations, can live with one another.

There may be some unwritten truths, but many things have changed as well. When the Canadian constitution was written, many things did not exist. For example, we had a smaller population.

In order to deal with our complex environment and the large number of laws we must give ourselves because our population has increased, I would like to understand what we will do to find a way to live together.

I would like to ask a question I wasn't able to ask the other group. I find I am missing quite a large part of the story. If a territory was given to your nation, should we, when we proceed to determine what constitutes a decent subsistence level, take into account all of the people who are registered Band members or only those who live on the territory?

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I would like you to tell me one thing. I have been told that Aboriginal people place more importance on the community when managing their affairs. Consequently, if we have to take the entire list of registered Band members into account to determine what the community's needs are, should we also take into account the revenue of all members of the community, even those who live outside the territory, when calculating a decent subsistence level?

I am not trying to trap you; I am simply trying to understand.

[English]

The Chair: Mr. Augustine, I know Mr. Bernier has a different definition of brief from most of us, but go ahead.

Mr. Patrick Augustine: The Mi'kmaq Nation wasn't consulted when the British North America Act and all the subsequent regulations that came out of it were drafted. Nor were we consulted for the repatriation of the Constitution. That's all been imposed upon us, just as the Indian Act is foreign legislation imposed on us. The licensing schemes and the Fisheries Act are impositions. Now you'd like to have consultations after more than 500 years.

Traditional districts of the Mi'kmaq extended from the Gaspé all the way down to Cape Breton, Mi'kma'ki. Traditionally it was the Sante Mawiomi Mi'kmaq that regulated the harvesting of our resources. It was the Grand Chief of the Mi'kmaq Nation, in council with the district chiefs. There were seven district chiefs, seven district Mi'kmaq territories. Each district chief would consult with all the chiefs within his district, and all the chiefs in the district would more or less represent the clans or the families.

If I were to harvest in another district, it was Mi'kmaq protocol to approach that district chief and express our intentions. We were either permitted to harvest or not.

As for determining a moderate livelihood, what would a moderate livelihood be for a non-native in the lobster fishery? What would a moderate livelihood be for a non-native in the crab fishery?

The Chair: Mr. Bernier—very short, though.

[Translation]

Mr. Yvan Bernier: Very well. I will be as brief as possible, but I don't think I will be able to solve my problem.

While continuing to refer to historical precedents, you have just given us an example of what would be a decent subsistence level for a crab fisherman. Back at home in Gaspésie twenty years ago, we used crab and lobster to fertilize our gardens because those shellfish were not well known and were not commercially viable. When I asked the question about the decent subsistence level, I wasn't only thinking in terms of revenue, but also of the size of the catch allowed.

If the price of crab were to fall to 80¢ a pound tomorrow morning, which was the price of crab no more than nine years ago, this would make a big difference since the actual price of crab is $2.25. I think we will have to find a basis of comparison that would be reliable over a long period of time. I simply wanted to make a comment.

[English]

The Chair: Sorry, Sarkis, we'll come back to you.

Mr. O'Brien.

Mr. Lawrence O'Brien: I have three points. The first one is on conservation. Obviously that's a balancing act here, to a large degree. How far can you take a resource and still have conservation be the order of the day? I'd like to get your views on that, as it relates to non-native and native fishery generally, in terms of lobster, for argument's sake.

• 1040

I'd also like to ask you about your role and your enforcement officers' role, as they relate to the fishery under the aboriginal fishing strategy. I have some knowledge of how those strategies operate and how DFO farms out some dollars, in terms of enforcement, but I want to get your version of that.

The third point is on the same comment my colleagues, Mr. Bernier and Mr. Duncan, asked on a moderate living. I heard your response where you put it into reverse, as to what is considered a moderate living for non-aboriginals, or to a large degree the existing commercial fleet. That seems to be a term we have to wrestle with as a committee and as Canadians.

So the three points are on conservation, the enforcement side, and moderate living. Maybe you can expand it a little more on the moderate living, but perhaps you already gave the answer.

Mr. Patrick Augustine: On a moderate living, we'd just like equal opportunity to non-natives. What they would consider a moderate living for themselves, we would take into consideration as a moderate living for ourselves.

On conservation, it would be foolish to overfish the resource to the point of extinction. You wouldn't have a fishery left, and that would not ensure treaty rights for future generations. But that's something that will have to be worked out. The present harvest of the resource will have to be adjusted to make room for the entry of the native fishers.

The Chair: Thank you.

Mr. Stoffer.

Mr. Peter Stoffer: Thank you very much for your presentation.

In your presentation under fisheries management, it says the Mi'kmaq must participate in the development of policy and regulations. I can't agree more with that statement. The one concern I have—and you just mentioned it in your closing statement to the parliamentary secretary—is you're talking about the entry of aboriginal people into the commercial fishery, which I believe will happen. How that happens will of course be determined not only by us, but by all the players and stakeholders.

Once aboriginals and non-aboriginals are fishing side by side in a commercial sense, can you see the need for a further food, ceremonial, and cultural fishery after that? Will one still be included in this as well? Will that eventually be done away with, and the people who are fishing for food and ceremonial purposes now be regulated under the same guidelines as everyone else?

Mr. Patrick Augustine: I think the ceremonial, communal, and food fishery will be a small part.

Mr. Peter Stoffer: But will it continue as well as the commercial fishery?

Mr. Patrick Augustine: To some extent it will continue. Fishing for communal purposes and ceremonial purposes is not a treaty right; it's an aboriginal right. That's tied into aboriginal title.

Mr. Peter Stoffer: I ask that question because in your conclusion it says you're willing to enter into a treaty fishery guided by conservation concerns. We all know that when you fish outside of the current seasons, one trap can do the job of ten other traps. We all know that; it's quite obvious.

• 1045

If you're willing to be guided by conservation concerns, and the entry of the aboriginal people is complete—I'm talking about something that will happen down the road—and you are fishing side by side in a commercially regulated sector, and then you're saying the food and ceremonial will still continue, will that food and ceremonial continue in the off-season, when obviously the fishing for lobsters would be more enhanced than it would during an open season? Would there be a need for a food and ceremonial fishery after that?

Mr. Patrick Augustine: Yes.

Mr. Peter Stoffer: Even though you say you're willing to be guided by conservation?

I guess I'll word it this way. If the conservation guidelines said there shouldn't be any fishing, period, during a closed season for everybody, would you abide by that if you participated in the conservation effort?

Mr. Patrick Augustine: Well, if DFO regulated the fishery and closed the season based on conservation, we would have no choice but to abide by that closed season—

Mr. Peter Stoffer: For everybody?

Mr. Patrick Augustine: —if it's detrimental to the stock. And we would have to examine the science of determining that conclusion.

Mr. Peter Stoffer: I appreciate that. Thank you.

The Vice-Chair (Mr. John Duncan): Mr. Assadourian.

Mr. Sarkis Assadourian: Thank you very much.

I have just a few questions. First, do you totally oppose fishing off-season, as was raised earlier by my colleague, who said if you fish off-season, you can catch ten times more fish in a shorter period? That's my first question.

Second, on enforcement, we were told earlier today that they used to have six enforcement fishing officers, and now they only have one. Would you recommend that they increase the number of fishing enforcement officers throughout the season so that they could enforce the quotas and help out in conservation? That's my second question.

Third, please let us know on what points you agree or disagree with commercial fishers, from your point of view.

Mr. Patrick Augustine: Could you run that last one by me again?

Mr. Sarkis Assadourian: What points of disagreement do you see between native fishermen and commercial fishers, from your point of view, that you can bring to our attention to be addressed?

Mr. Patrick Augustine: Points of limit?

Mr. Sarkis Assadourian: Points of disagreement—what you don't agree with.

Mr. Patrick Augustine: For a management plan to be enforced, the community should have some involvement in the development of that plan, and then it should be taken back to the community for the community to decide to impose it. That way, when it is enforced, those fishing out of the season are going against the communal will.

Mr. Sarkis Assadourian: But it's nature. There's nothing you really can do with nature.

Mr. Patrick Augustine: And it is nature for others to fish out of season. Fishing out of season isn't done just by natives, if you're suggesting that. Non-natives as well tend to fish out of season; they just don't mark their traps.

For the enforcement, there should be an increased effort, an increased number of enforcement officers.

Mr. Peter Stoffer: I share your view.

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Mr. Sarkis Assadourian: And on the final question, on what points don't you agree with the commercial fishermen? What are your concerns or beefs, if I can put it that way? What do you think is wrong that should be corrected?

Mr. Patrick Augustine: We feel it is wrong that they're denying us access.

Mr. Sarkis Assadourian: How?

Mr. Patrick Augustine: The Abegweit Band has a licence to fish commercially on the north side of the island, within the season, under the regulations. Everything's done according to the book—according to DFO.

We have the licence, the boat, and the equipment. We have the communal will to fish within the season, following regulations. But we can't access the port on the north side. We are told that if we fish out of Covehead, they will destroy all our traps. That was before Donald Marshall. Is that how things are going to be after?

Even if there's a will to fish within season following regulations, we will still be denied that access at some point. Are we going to rely on DFO to ensure that access? Are we going to rely on the coast guard? Who do we rely on? Who do we go to? How do we access those ports? We might have an aboriginal right to fish and a treaty right to fish, but it's not going to help if we can't even access a port.

Mr. Sarkis Assadourian: So you agree on enforcement issues, the conservation issues and the quotas. The only thing you don't agree on is the area where you fish—one north area that your band can't fish in. Is that what you're telling me? Am I right? On everything else, you agree with the commercial fishery's recommendations.

Mr. Patrick Augustine: Yes.

Mr. Sarkis Assadourian: Thank you.

The Chair: There is just one last point before we close.

Mr. Augustine, you state under “past experiences” in your submission that the Abegweit Band has attempted to fish under licence and in the regulated season, yet you're still denied access to the resource. Is that the point you just made, relative to not being able to fish out of a port on the north side?

Mr. Patrick Augustine: Yes.

The Chair: When was that licence granted, and how many licences do you have? Are there two boats?

Mr. Patrick Augustine: Yes, there are two boats and three licences.

The Chair: When was that granted? Chief Jadis.

Chief Francis Jadis (Abegweit First Nation): It was granted in 1998.

The Chair: It was granted in 1998 under the aboriginal fishing strategy.

Chief Francis Jadis: Yes.

The Chair: Okay. Thank you, gentlemen.

We will go to the North Shore Fishermen's Association, Norman Peters. Welcome, Norman. Please introduce the people with you as well, for the record, and then fire away.

Mr. Norman Peters (President, North Shore Fishermen's Association): I have here, Mr. Chairman, Greg Hébert from Malpeque Harbour and Walter Bruce from North Lake Harbour.

I would like to thank you and your committee for letting us express our views today.

The Supreme Court ruling on the Donald Marshall case has left Atlantic Canada reeling. I am speaking especially about the lobster fishery. As far as the fishermen of Atlantic Canada were concerned, it looked like the end of conservation of lobster stocks. When the ruling was announced, I'm sure that if you had taken a poll there would have been a number of interpretations of what it meant.

• 1055

Nova Scotia fishermen asked the Supreme Court to try the case once again, but they were refused. The court did clarify what they meant by the decision. They said the provincial government and the federal government had the power to regulate the fishery under the conservation rules regarding the resource.

We, as commercial fishermen, have been in the industry when times were very tough. A lot of us hung on with the hopes of the industry rebounding, which it did. We accepted very tough conservation regulations from the science branch of DFO, which included a four-year carapace size increase, which puts us in the third year. You must appreciate our concern when, as soon as this court ruling was announced, native people were heading for the water with lobster traps, whether the season was open or closed at that time.

In the lobster industry, huge investments are made in boats and gear. To witness something like traps being rushed into the water as soon as the court decision was announced certainly looked like an end to conservation measures. All people must realize the resources belong to all people of Canada, not to non-native or native. The resource has to be protected by very tough regulations imposed by the Minister of Fisheries and Oceans.

In the fishery on the north side of P.E.I., in Malpeque Bay, the fishermen will no doubt see the first declining catches, and then the entire industry will be affected. You cannot take lobster out of season and expect no negative results. In the so-called food fishery, 80,000 pounds of lobster were taken out after the spring season closed. Again this fall, using a very conservative figure, around 50,000 pounds were taken out.

There is no doubt in my mind that if native people want into the industry there is no problem, as long as the conservation regulations are followed. At a recent annual meeting of the North Shore Fishermen's Association, the court ruling was discussed. The overwhelming decision of the meeting was that there be one set of regulations for all people, particularly in the lobster industry. That means fishing only in the season regulated by DFO; that the so-called food fishery be stopped; that there can be no added pressure on the stock; and that there be a voluntary buyback lobster program.

Just concerning the buyback program, we don't want to see it become too hard for the sons and daughters of generations of fisher people, who have made their livelihood in the industry. These young people who have worked as helpers have their hearts set on working on the waters of P.E.I. We, the fishermen of P.E.I., would like the Minister of Fisheries and Oceans to make sure the young people receive that chance.

We are glad to hear that he can regulate now, and this committee must ensure that he does. We want to make sure that DFO enforces these regulations mentioned. It's very vital for the very survival of the resource that all people respect the conservation measures that are in place now.

The FRCC report, which was introduced on the health of lobster stocks when Brian Tobin was in power, indicated that we are taking too much out of the fishery and leaving too little. So the Minister of Fisheries and Oceans must use his power to ensure that these very important resources are protected for the future of the native and non-native peoples of this great country of ours.

The Chair: Thank you, Mr. Peters.

Mr. Cummins.

Mr. John Cummins: Thank you very much for your presentation this morning, Norman. I think you have provided the committee with some good information here.

I'd like to follow up on a number of the points you've made, but before I do that, you mention your concern in your brief about the decision of the court and you suggest support for one set of rules and regulations for all Canadians.

Does your group support the first principles of the alliance, which were referred to earlier by the Malpeque group?

The Chair: Do you want to explain that?

Mr. John Cummins: The fishermen's alliance has established seven principles, in response to the original Marshall decision. I just want to know if your group supports those seven principles.

• 1100

Mr. Norman Peters: I would think so.

Mr. John Cummins: You also mentioned the 80,000 pounds taken out in the so-called food fishery, and you talked about a very conservative 50,000 pounds taken out of Malpeque Bay, I presume after the Marshall decision. Do you and the group at large also share this concern over enforcement, that these numbers may be somewhat underestimates of what was actually caught?

Mr. Norman Peters: Yes. Any number of figures have been chucked around, but those are pretty conservative figures.

Mr. John Cummins: You commented as well, in your presentation, on a voluntary buyback program. You raised the interesting point—and I'm quite glad you raised it—that you support the buyback program, but at the same time there's the fear that if a buyback program is put in place, the sons and daughters of current licence-holders who want to participate in the industry will perhaps be put in the position where they will be bidding against the federal government for licences. That's a concern I share.

Of course, on the west coast the government drove the value of the licences down so far that the amount they paid them in the buyback program was so insignificant it didn't become a problem for us. But here, where the industry is still healthy, there is a very real problem.

I don't have a solution to this, and I wonder if you have any suggestions you could make. How do you get that balance, so you can still allow access to the sons and daughters of fishermen who want to get into the industry, but at the same time allow a buyback program and a transfer of licences to aboriginals? How do you get that balance?

Mr. Greg Hébert (North Shore Fishermen's Association): That's a fair question, but it's tough to come up with an answer at the drop of a hat.

You have a situation where, as it is now, the licences are at a premium. If somebody knows that a fisherman is going to retire, he can be guaranteed that in the space of a year, before he announces his retirement, he will have at least a dozen offers for that licence.

On where the government buyout program comes into place, I don't feel there should necessarily be one. Perhaps we have to look at some other programs that could accommodate any transfer outside of the buyback. I don't know what those programs might be, but I guess that's why you are talking to people.

Mr. John Cummins: It's a very real possibility here, as you said, a dozen people will want to buy the licence when the rumour gets out that somebody is about to retire. If the government becomes the thirteenth potential buyer, they certainly have the backing to take the show, and I guess that's a given.

Mr. Walter Bruce (North Shore Fishermen's Association): I think you would have to look at something above and beyond the buyout price for this fisherman who's leaving the industry—some sort of pension. Then you would not affect the overall inflation of the lobster fleets.

Mr. John Cummins: What happens, though, if you encourage people to get out and sell their gear by providing a pension, as you described? When we were driving down the road last night, we saw a harbour and there were only six boats tied up. If you took away three of those, how would you maintain the facility? Isn't there a point where once you start taking boats and gear out of a harbour, the very existence of the harbour becomes questionable because there aren't enough people there to maintain it? Do you see that as a problem?

Mr. Walter Bruce: I think that's an ongoing thing as we speak anyhow. With the user fees and the port authorities taking over, fishermen have to support their own harbours. I think the overall plan there, though the federal government doesn't admit it, is to have fewer and bigger harbours.

Mr. John Cummins: Is that the way you want to go, or is that the way the government wants you to go, with fewer and bigger harbours?

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Mr. Walter Bruce: That's not necessarily the way fishermen want to go or the way the people who live in these local areas want to go, but the overall master plan is pointing that way.

The Chair: This is your last question, John.

Mr. John Cummins: I'd just like to emphasize this point, Norman. You talk about an end to this so-called food fishery. In particular, I guess you'd want an end to it during the season when the lobster are soft-shell. As I see it, the decision calls on the minister, or certainly underlines the fact that he has the authority to stop the harvesting of lobsters during the spawning season, in the language of the regulation. I guess your encouragement to the minister would be to enforce that regulation, and I guess you'd want to underline that fact.

Mr. Norman Peters: Seasons are there for a reason. You have to give lobsters a chance to recuperate. You just can't keep after them all the time. I know the native community says they're not hurting the stocks, that they're just using little boats, but the lobsters have eggs in them that are not showing at that time. Those lobsters are going to be picked up and are not going to have a chance to reproduce. This is the main concern. Conservation has to be number one, gentlemen, or there will be no fishery, the same as happened with the cod. That's the way it'll go, and we're looking at that right now.

Right now the lobster fishery is the most highly regulated fishery in the world. The cod fishery had a lot of controls, but they were output controls. Lobsters have input controls—seasons, trap limits, catch mechanisms, carapace size—and those have to be maintained to the highest priority. We all have to do our part if we're going to look after this industry, and we've been doing our part for a number of years. We've been brainwashed that the lobster stocks have to be protected. Mr. Easter knows that. We've had numerous meetings on conservation measures. They're in place now and they have to be respected, particularly the seasons.

Mr. John Cummins: If I could just make one observation on that—

The Chair: Very quickly.

Mr. John Cummins: It's a very quick one, Mr. Chairman.

When the committee is reviewing the presentations today, we should take note of paragraph 33 of the latest Marshall decision, in which the court suggests that the minister may make regulations respecting the conservation and protection of spawning grounds. I think we should make clear note of that when we review—

The Chair: So noted.

Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I would like to return to the Licence Retirement Program that you described in your document. You are one of the first groups to mention how the Licence Retirement Program will affect your children and the fisherman's helpers who work for you.

A member of your group replied earlier that you hope to not be forced to use the Licence Retirement Program because many people depend on these licences. He also said that you would like to know about any other available solutions, if any exist. Do you have any ideas about what could replace the Licence Retirement Program and would not force people away from the fishery industry?

For example, has your group discussed assigning a contingent of fishermen per boat? Once the number of pounds of lobster per person is known, would it be acceptable to reduce this number if we could ensure that the reduced catch would still be sufficient?

Or can we consider reducing the number of traps used by each fisherman in a zone, thus allowing Aboriginal fishermen access to the zone? Would your group be willing to discuss these issues? If this is not acceptable, our only option is the Licence Retirement Program.

I will have a further question to ask later.

[English]

Mr. Norman Peters: On quotas, we're very scared of quotas. If we have a poor season, DFO jumps on the bandwagon and says they'll have to lower the quota this year because we had a poor season and stocks are on the decline. But we all know that there are ups and downs in the lobster industry, and it works very well the way it is right now.

• 1110

On the other part, on giving up traps, if commercial fishermen have to give up traps, there is a possibility that could be worked out. But if you're going to start taking traps from commercial fishermen, you'd better consider putting some compensation in place. When they had to give up traps in the States, they were compensated for the number of traps. It was figured out what those traps would catch over the year, and they were compensated. It seems like the commercial fishermen are always having to give. The people of Canada know it's our industry, as I've said, and we have to protect it. But there is a limit there, too, that we have to look at.

There are different things we could discuss, but as I was reading my brief my thought was to present to you people the fears of the fishery. Is there going to be one left for the future? I don't have the solutions. I figure this is what this committee is about, to come up with some solutions after the briefs are all presented. But there's no doubt the buyback program might not be the proper way to go. There might be other ways, but those will have to be discussed.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier: Here is my other question. I will state again that you are the first group to draw the committee's attention to the fact that you have fisherman's helpers and sons and daughters for whom fishing is their livelihood.

If we were ever to implement a Licence Retirement Program, should such a program take into account the sale value of the licence and the cost of the equipment that you could no longer use? Should we also think about developing a diversification program or a career reorientation program for the men who work for you, as well as for the members of your families who will have to opt for another line of work since they will no longer be able to follow in their fathers' footsteps? I think that we must include the social costs such a transition will entail.

I don't know if the witness wishes to comment on the matter. This is similar to what occurred with the TAGS program, where a career orientation program was implemented.

[English]

Mr. Walter Bruce: I don't know quite how to answer that one, but I'm going to comment on the previous question. If there is going to be any cost or any loss of income to the commercial fishermen who hold the licences now, it should be borne by the people of Canada. This is not a problem that was initiated by the fishermen; this is a Canadian problem. So if there's any loss of income or any pain caused to the fishermen, they should be compensated. They shouldn't bear the brunt of this.

As far as the helpers in the boats are concerned, we've reached the stage in the fishery where it has now become lucrative. The prices have become quite expensive. When I started and Norman started, the licences were 25 cents. You didn't even necessarily need to have one at that time. More or less, if you thought of it, you picked it up, but fishermen even fished without one in those days.

But we've come to a situation in the fishery now where the guy who really wants to go or probably was meant to be a fisherman cannot necessarily go fishing, because of the costs of the licences. So right now, the people getting into the fishery are the people who can afford it or who have something to come back to when they get into it.

I don't know if that answers your question or not.

Mr. Greg Hébert: If I could add just one comment, there seems to be a lot of discussion around the table—and I guess this is the main question that's come up—that everybody seems to be leaning toward the idea that there is going to be a transfer of our resources from our traditional commercial fleet to the native fishermen. The Supreme Court didn't say that, but I think that's one of the questions that should be looked at here.

In all these discussions, everybody asks what we can we look at as an alternative to the buyback. One thing is that perhaps DFO could stand up and enforce its authority. The Supreme Court says:

The regulatory authority extends to other compelling and substantial public objectives, which may include economic and regional fairness and recognition of historical reliance upon and participation in the fishery by non-aboriginal groups.

If that's taken in the context of what you're saying here, DFO could say right now that we'll talk about it, we'll sit down with the aboriginal population and discuss it. But at the end of the day, if it's going to come at a cost to the commercial fishery, DFO can therefore regulate that commercial fishery and have it continue as it is.

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DFO can go so far as to limit all the other things we've been talking about. The food fishery could be eliminated underneath this quote, as well as any other programs. And perhaps the DFO can also look at the aboriginal fishing strategy in its whole and ask if that's the direction we should have taken. The Supreme Court has clearly stated that perhaps they haven't taken the right direction in the eyes of the law.

The Chair: Mr. McGuire.

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

I think it's a fallacy to think the lobster fishery in P.E.I. is a very lucrative one. Look at Fishing Cove, for example. When I first got involved in this business, there were thirty fishermen, and now it's down to ten, basically because the lobster fishery has collapsed in that whole area of Borden right up to the Evangeline area. Those licences are leaving that area, but they're going farther up the strait, putting additional pressure on Skinners Pond and Miminegash and these ports. Not everybody can have access to a licence all the time, and you can't hand them down to your kids, because the fishery is pretty well gone in certain areas there.

In P.E.I, particularly along the north shore, I believe the area of concern would have to be Malpeque Bay, in terms of the pressure that's going to be exerted there. There are three harbours in existence in Malpeque Bay, with the Lennox Island harbour there now. The question is how to share that resource within the bay and still satisfy everybody's rights under the Constitution. We have all these different groups now negotiating the divvying up of that resource. We have Atlantic band councils as an organization, and we have band councils who want to deal with the harbours in the bay only. And then we have DFO, with a clarified right to negotiate those rights, whether it's with white or aboriginal, and it all has to be done by next spring. Besides that, we have two mediators going around the countryside, Mr. Thériault and Mr. MacKenzie.

You have all these people involved in this process. How do you see this thing coming out? How do you streamline these many groups of people and their many divergent interests, and in the end come up with a plan that's going to be viable for P.E.I., where basically it's going to have to be Malpeque Bay?

I'm not sure how many licences will be coming out of the Abegweit Band, but with the Lennox Island Band I think you're going to see a considerable number of licences and a considerable number of traps. In my mind, it's not just because it's my riding, but there's the hot spot in P.E.I. as far as concern for the conservation of the future of the resource is concerned.

How do we look at all these various groups together to come up with a plan? Who do you eliminate? Do you eliminate anybody? How do you do it?

The Chair: That should be easy to answer, Norman, Walter.

Mr. Walter Bruce: As you know, I'm from the eastern tip of the island, so it's of great concern to me. It's going to be an immediate problem in the Malpeque area. There's no question that they'll feel the effects first. This has been known by the scientists and most fishermen for years. This is the great spawning area where the fish go in and do their breeding. It's a real habitat for this type of thing.

If you look at the larvae drifts and predominant tide drifts on the north shore of P.E.I., for all we know—and this is the feeling amongst most fishermen—a lot of the spawn and the larvae that drift out of there do land in our waters up towards the eastern end. A collapse of the fishery there could mean a collapse up in our area. So in the short term they are going to be the immediate people affected, yes, but the long-term effects could be felt straight up the shore if that area is depleted.

I'll turn it over to Norman and Mr. Hébert.

Mr. Norman Peters: That's what we said in our brief. In the short term, it's the fishermen in Malpeque and False Harbour who will feel the result first, but eventually the entire fishing industry will be affected.

Mr. Joe McGuire: The question is, what do you do? You have to buy some licences. If there's any place you're going to have to buy licences out, it's going to have to be in Malpeque Bay, and almost on an immediate basis. You're looking for a licence buyback, plus you'd have to have a bonus. Just to exchange the value of the licence doesn't put anybody further ahead. You don't even keep the status quo that way.

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Mr. Greg Hébert: I think DFO, through the aboriginal fisheries strategy buyout program, hasn't limited this to Malpeque Bay. They want to get 12 licences in the bay, they want to give 12 licences to two other native groups on the island, and get a total of 36 licences coming to the island. Their rationale is that is equal access to the fishery if you take it on a population basis, in terms of the aboriginal population versus the population of our rural communities. In Malpeque Bay alone there are a lot of fishermen who live in Summerside, for example. In DFO's math, in coming up with what's fair, what they've already established—and this is what they're working toward—is flawed.

What I would say has to happen between now and next spring is that, first of all, DFO has to come out and exercise its power to regulate the fishery. The department has to close down any fishing outside of the season that exists now, and we have to open negotiations at that point to see where we go from there.

The initial decision in September prompted the native interests to come out and say this is a free-for-all, that they take what they want and we get what's left over. That's what they basically said to the commercial fishery. At this point, I think we have to take a step back and say to hang on and leave things as they are because the conservation program is working. If they want to talk to us, then we can sit down and talk about it.

There were comments that were heard, and not just in the lobster industry. Apparently the snow crab fishery was approached and told that should the natives require and want the 5% of the total quota that the snow crab industry has now, they'll take it. And they told mussel fishermen that if the mussel fishermen want to keep the natives out of the mussel fishery, perhaps they could pay the natives to stay out of the fishery.

Mr. Joe McGuire: Told by whom? Who was telling you this?

Mr. Greg Hébert: This is all sort of hearsay, so I hate to name the names. You hear conversations that have gone on in different meetings throughout. Let's just put it that it was someone in a position of authority within the native community in Malpeque Bay.

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: Thank you.

So many questions, so little time. The first question I have is on the industry alliance that you talked about. Are companies like Clearwater and Donna Rae Ltd. part of this alliance, for the record?

Mr. Greg Hébert: I'm not sure about the particulars of who was involved, but I do believe there are entire processing interests involved. A local processor put a submission in through us this morning, and one of the concerns they had was the quality of the lobster being taken after the soft-shell situation comes to light in the fishery itself. The quality goes down, and you can't even sell those on the open market as market lobsters, so they end up going to processing plants and the value to the industry is lost.

Mr. Peter Stoffer: I appreciate that, but my understanding is that the large corporate sector is part of this industry alliance, according to Denny Morrow, who operates out of Southwest Nova area.

The reason I ask that question is that there are 6,300 licences in the maritime region for lobsters right now. One of the greatest fears of most of the lobster fishermen I've spoken to is that DFO may be contemplating and ITQ system on lobsters. If that happens, an awful lot of people are going to be very angry and very nervous. But the industry alliance, which is made up of some of the large corporate sector, operates under an ITQ system on many other species.

If that's the case, what's stopping them from advising DFO to put an ITQ system in place? The reason I ask that question is that several weeks ago a meeting took place in Halifax—and we know it was confirmed, because Mr. Chamut confirmed the meeting. Three members of the corporate sector, along with their lawyers, met with the regional director of DFO, and basically told him in no uncertain terms that the aboriginal people exercised what was to be a perceived right to go past the three-mile limit, and that the corporations were going to be going after DFO for compensation on lost revenue. Basically, they didn't want that to happen.

My great fear is that DFO may bend to that pressure, listen to that, and implement an ITQ system. Would your organization or the North Shore Fishermen's Association support in any way, shape, or form either enterprise allocations or ITQs on lobsters?

Mr. Norman Peters: I don't think they would. It's hard to speak for all fishermen, but anything to do with quotas is not a good thing, from my standpoint. I'll tell you that right off the bat. Any people we've spoken to who have been associated with quotas are not very happy.

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Mr. Greg Hébert: You can look at some other countries that have adopted those types of ITQ systems, and you very quickly learn that the small fisherman gets out of it quickly. The guy who hangs on and doesn't want to sell to the big corporate interest ends up going out of business because he ends up having no market for his fish.

Mr. Walter Bruce: Am I to invest in the cod fishery? The two companies own all the cod.

Mr. Peter Stoffer: One of purposes of that question, of course, is that just recently Canada sent a couple of experts on the ITQ system to Australia to discuss the benefits of the ITQ system, so we're exporting around the world what I call the worst management system of all. We have experts like Mr. Neil Bellefontaine, for example, who was one of those so-called experts who just recently attended a meeting there to discuss the benefits of the ITQ system.

I agree with you that the inshore community-based fisherman is the one who gets screwed in the end when it comes to an ITQ system, so I'm glad to hear that you don't support an ITQ system, although people in your alliance—the corporate sector—probably would.

Mr. Greg Hébert: Yes.

Mr. Peter Stoffer: We'll be asking them that question tomorrow.

Mr. Greg Hebert: I think we've basically agreed with the principles they've stated as it's related to this lobster industry, and it's limited to that.

The Chair: Thank you, Peter.

Before I go to John Duncan, Norman, in your presentation you said the so-called food fishery, the 80,000 pounds taken out after the spring season...that's from Malpeque Bay, correct?

Mr. Norman Peters: Yes, that's from Malpeque Bay.

The Chair: How does that compare to previous years? Do you know?

Mr. Greg Hébert: I think the 80,000 pounds is the quota and that's why that number is being used here. The actual number of lobsters taken out is, I think, well beyond that, but that quota has been in place for the past few years, I believe.

The Chair: Yes, I think it was higher the previous year, actually. I know that DFO shut the food fishery down at 80,000.

Mr. Greg Hébert: In fact, I believe that in 1995 the take was estimated at somewhere around 400,000 pounds.

The Chair: I don't know if anybody here can answer this. I was talking to somebody at Malpeque Bay—when John Cummins and I were there, actually—about how many times in the past there has been a lobster fishery in the fall. I understand the last one was held in about 1939. Is there anybody who can...? What we're looking at here are the implications.

We're spinning off Joe McGuire's question, really. I think he's leading to the point that maybe Malpeque Bay is even somewhat different from the general picture. As I understand it, after the last time there was a fishery in Malpeque Bay in the fall the stocks were down for a number of years. Can anybody document that? Does anybody have that evidence?

Mr. Walter Bruce: I can just tell you what my father told me. He was a fisherman all his life. He mentioned that it was the spring season when there was a big storm that lasted, and he said he had a fall season. He did pretty good that fall, but the next spring they got nothing and it took about three years to get back on an even keel again.

The Chair: Why I raised those questions is that I think we do have to look at Malpeque Bay as a somewhat different situation.

There's another point I wanted to raise because it hasn't been discussed yet this morning. In the Supreme Court decision, they relate it to moderate income in today's times. We're all talking here about possibly allocating so much of the fishery to the aboriginal community. We would be doing that if it's done on the basis that it would create a moderate income.

Now, what happens if three years hence the price of lobster is cut in half? Or if, as has happened in some of the other bays, there's very little of the lobster fishery, what, in your interpretation, should happen at that point? Does that mean that because at that time the moderate income is not being achieved you have to increase the allocation? Or what? What's your view on that? I don't mind admitting that I have a big concern on that one.

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Mr. Norman Peters: I think the committee first of all has to understand that in the lobster industry a lot of the young people borrow $250,000 or $300,000. A moderate income for a non-native and moderate income for a native are totally different. They have to be. There's no expense for a native in the fishery, but a non-native has bills to his ears. He has taxes to pay. He has everything to pay while the other party has nothing to pay and, as far as I'm concerned, nothing to lose if the fishery goes down the drain. That's my view on that part.

The Chair: Greg.

Mr. Greg Hébert: Just to touch on a conversation I had with one of the officers in the Summerside area, one of the things he mentioned was in regard to the fishery that was taking place after the Marshall decision and after the native authorities had closed the situation. The fishery that was taking place was being done by—for a lack of a better term—renegade fishers. These guys were on the water and they thought it was their individual right to go ahead and do what they wanted to do with the fishery, and they just went unpoliced.

One of the things of interest here too is that the... I don't know if anybody has brought it up yet this morning. The fishery was open for many years. At a meeting recently, one of the gentlemen from Malpeque Bay told the story of how, when he got into the fishery, there were 20 or 25 native fishers who fished beside him. When the fishery went downhill, they all got out, except one who died as a fisherman.

When it came time to license and DFO went around and issued papers to all the people who were fishing, the natives were not at the table because they chose not to fish. So now we take a step back and say, well, they have the right to fish so now we're going to negotiate to give them our commercial fishery...? I don't think that's the intent of this whole thing.

The Chair: Walter, did you have a point you wanted to make?

Mr. Walter Bruce: I just have a comment. I think you were trying to get around the point of the ITQs versus moderate income, of whether you could have a certain number of pounds versus the price to guarantee this moderate income, and I would say to you that the lobsters themselves do not respond to the price fluctuations, to prices going up and down. If the price is down, that doesn't mean the stock is going to go up to compensate for that.

The Chair: Mr. Duncan.

Mr. John Duncan: I just want to pursue this licensing issue a little more.

Walter, you made some comments about when the licences were 25 cents, and you said that everyone didn't actually take out a licence. I assume from what you said that it was like a polite formality but that essentially no one was really enforcing this, because there was no need to enforce a fishery that was essentially, I guess, considered not to be fully subscribed.

Mr. Walter Bruce: That's the way it was when I started. It was more or less the polite thing to pay your 25 cents when you thought of it, but the season could be half over before you'd see an officer and pick up your licence.

Again I'll bring the federal government into this. This gentleman over here mentioned that there were a number of natives fishing and that then they weren't fishing. Now, the government themselves encouraged these people not to fish, so I get back to this being a made-in-Canada problem. It was more lucrative, I would guess, in those days. When I started, lobsters weren't a very large price, maybe 20 cents, 22 cents. It was tough times in those days. The federal government had it set up that it was more lucrative for those people to sit back and just not go to work.

Now the federal government is withdrawing some of this income support, I guess you'd call it. The natives are in a position now that they have to go out and start standing on their own two feet, and the lobster fishery is the most lucrative one here now—and crab, I guess—which they can get into really quick, the lobster being right on their own back doorstep. So again I'd say that this is a made-in-Canada problem. The commercial fishermen of P.E.I. should not bear any of the costs of this.

Mr. John Duncan: May I ask you what year you started in the lobster fishery?

Mr. Walter Bruce: I started in the sixties. I've had at least 39 seasons as a lobster fisherman, and Norman here has 35, I guess.

Mr. John Duncan: So in 1960 when you came into the industry, what would you speculate would have been the aboriginal participation in the lobster fishery at that time?

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Mr. Walter Bruce: Again, you'd have to ask someone from the Malpeque area. In the area I fish, we do not have any native people fishing—I guess because in that area there are none.

The people prior to us made a comment that they had to fish on this side, and they weren't allowed to fish on that side. I want to make it clear, the reason they're allowed to fish only this side of the island is because they carry two lobster licences that say they can fish in the strait.

Now, if they want to fish on the north side of the island, all they have to do is purchase two licences over there. As far as I'm concerned, and any commercial fisherman there, as long as they carry a bonafide lobster licence for the north side, I don't see a problem.

Mr. John Duncan: You're saying there's nothing different about their licensing system and that requirement than it would be if you had purchased a licence. If you had purchased a licence, it would have been area-specific as well.

Mr. Walter Bruce: That's right.

They bought a licence for that area, and just because the catches happened to be down there in the last couple of years, when I was up in the north side, they wanted to go over there as well. We have all kinds of non-native people, I guess, who would like to jump from side to side too. But when you make your commitment for the district you want to fish in, that's where you're stuck, be it good or bad.

The Chair: John, you have a last question.

Mr. John Duncan: Several people have talked about 50,000 pounds coming out in the fall. Where does that number actually come from? Is that a publicly published document?

Mr. Greg Hébert: Chief Sark actually put that number on the table as an estimate. At the time, I think everybody else sort of said it's an estimate. Some bought in and took it for what it was. According to fisheries officers, it's about double that count.

If you guys can get those guys to testify in camera to tell you what's going on here, you'll get some real answers for some of these questions.

Mr. John Duncan: So what you're really telling me is that there's no process to publicly document what the fishery.... Okay, thank you.

The Chair: Mr. O'Brien, be very quick if you can.

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

Patrick Augustine spoke a few minutes ago about the three commercial licences they have but can't fish because they can't access the port. If they do access the port, their pots will be destroyed. I think that's the point he made.

I find that a pretty flattering comment. I'd like to ask any or all three of you how you see that. That's going to be the aboriginal fishing strategy. I understand those licences are commercial licences under the aboriginal fishing strategy for the north side.

That sounds like a vicious degree of confrontation to me, if that is the case. Can you explain that, or maybe give the committee some thoughts on it?

Mr. Norman Peters: Over the past number of years I think this fishery has been such a volatile issue. When you mention lobster fishing and natives, there seem to be no regulations.

I can't take my boat and my licence and go fish on the south side. I can't do that. My licence says area 24, and I can't go around. You'll hear a lot of miscommunication, too. You'll hear coffee shop rumours. You'll hear this and that. But I don't think there's any problem if a person is fishing within the seasons.

Mr. Chris Wall: As long as it's not a native or non-native fisher who wanted to take a licence from one area into another area. Now, if Norman or I were to do that, I'm sure the same thing would be told to us. There's absolutely no difference. He just wanted two sides.

The first thing that would have happened there, if they had done that, is that under the commercial act, the officers would have seen it, because they wouldn't be licensed for that area. Now, there probably is trust that if the officers didn't do it, the fishermen would take the law into their own hands.

As was mentioned earlier with the lack of enforcement, I think in the fishery you'll find that fishermen do most of the patrolling now themselves, because of lack of enforcement. I hate to mention enforcement too much, because if you keep harping on it, all of a sudden the feds will say they will hire more officers, but they'll be user pay. We have enough user fees now. I think the system we have, where the fishermen more or less regulate the fisheries themselves and look after it, might be better than getting into another user-pay system.

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The Chair: Is that it, Lawrence?

Mr. Lawrence O'Brien: To clarify the point, the issue has to do with the south side versus the north side. Groups, you're saying, go from the south side to the north side, and if you did it, there would be no difference from within your established district. Is that the point you're making?

Mr. Norman Peters: If we went over there, from the north side to the south side? It wouldn't be allowed in the first place. In the second place, I wouldn't expect to have any gear left after the first day, period.

The Chair: I think it's understood that's whether you're native or non-native. That's Norman's point.

Mr. Lawrence O'Brien: That clarifies it, yes.

The Chair: Thank you, gentlemen, for your presentation and response to questions.

The next witnesses are Hector MacLeod and Robert Morrissey, Liberal opposition members of the legislative assembly.

We're only about a half-hour late. We're not doing badly.

An hon. member: We're forty minutes late.

The Chair: Yes, we are forty minutes late. If you guys wouldn't ask so many questions, we'd be ahead of time.

A voice: They're good questions.

The Chair: They are indeed.

Hector or Bobby, I don't know who's making this presentation, but can you keep it down to about five minutes? We are running about forty minutes behind.

Mr. Hector MacLeod (Member of the Legislative Assembly of Prince Edward Island): So we don't get the half hour everybody else got, then. Is that what you're saying?

The Chair: You'll get the half hour, but....

Mr. Hector MacLeod: Thank you, Mr. Chairman.

I apologize for our brief getting here late, but I do have a more condensed version that I think will satisfy you, Mr. Chairman.

First of all, on behalf of my colleague, Mr. Morrissey, I'd like to thank you people for taking the time to listen to this issue, which came about as of September 17.

There's been some activity throughout the country, and I find that in the discussions some people are almost too polite. They don't want to offend one side or another. When you're discussing an issue as important as this, I don't think politeness can apply all the time, but consideration is what we would like to have take top priority.

Having said that, Mr. Chairman, I feel I must say up front that I am disappointed that this committee had to be established at all. Furthermore, given the recent clarification by the Supreme Court, I find it to be an unnecessary exercise.

The bottom line, in my opinion, is that DFO and the minister responsible dropped the ball on this very important issue. The department and the minister certainly must have known the potential implications of the Supreme Court decision in the Donald Marshall case.

I must say, the fact they were not prepared for what happened is disturbing. There should have been a plan B. There should have been a contingency plan in place. If there had been some forward thinking on the part of the department and the minister, much of what occurred in the days following the Supreme Court decision could probably have been prevented.

The president of the P.E.I. Fishermen's Association, Donnie Strongman, said:

We aren't in disagreement with...the ruling that came down from the Supreme Court, but we are disappointed with the federal government's lack of preparedness following the decision. We feel the Department of Fisheries and Oceans should have had an idea of what action would need to be implemented before the decision was made.

That very clearly is the main concern. Why was there not a better preparation? The resulting dissent in the fishing community of this region was unfortunate, unnecessary, and possibly could have been avoided. That is not to say, however, it was not expected.

Here we have a group of people, individuals who have invested a great deal of time and money in developing their business, being told for the last several years that conservation is key and management of the stocks is paramount. They have been told that the only way to ensure a sustainable resource in the future is through strict conservation measures.

Then, despite all this, with an important decision pending from this nation's Supreme Court, the Department of Fisheries and Oceans is not prepared to deal with it.

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The fishermen in this region have been facing increased fees as well as dockside monitoring, harbour fees, and what have you, and then all of a sudden the resource is being threatened after they've been told for years that conservation is vital to sustaining of the industry.

I want to reinforce this commitment, and through this committee to the minister, that it should be absolutely no surprise that fishermen in this region reacted as they did. The minister's response was feeble. He could have taken action, and the recent clarification of the Supreme Court proves that.

The minister is responsible. The minister can regulate. In fact, members of the committee, I fail to see why you haven't been called back to Ottawa so the minister can do what he's been charged with—that is, regulate the fishery and settle this issue so that people can get on with their lives. Settle this issue fairly and evenly so that the native people of this region have the rights they are entitled to, they are treated fairly, and the stocks can be protected for everyone.

That must be the ultimate goal. The minister has the power to do what is right.

Once again, I believe the issue is fairness and equitable treatment, not treatment that allows one group more than the other. There is nothing fair about this.

I urge this committee to do what is necessary to make its report as quickly as possible, or better yet, simply discontinue your hearings so that the minister can use his authority, the authority that has been clarified by the Supreme Court, to bring this contentious issue to an end.

Thank you, Mr. Chairman. That's my prepared statement.

The Chair: Thank you, Mr. MacLeod.

Mr. Cummins.

Mr. John Cummins: Thank you for your presentation this morning, Mr. MacLeod.

You say the minister has the authority, and had the authority even prior, I guess, to the Marshall decisions, to take certain actions to regulate the fishery and so on. I couldn't agree more with you that he does have that authority, but I guess what was lacking here was an agreement at large that the minister had that authority.

In fact, certainly after the September 17 Marshall decision it was assumed by natives that their right was a priority right. It was said that they were operating under a constitutional right and that regular commercial fishermen had only a privilege to fish that was granted by the minister. In fact, as I'm sure you're aware, they were ignoring the public right to fish, which was guaranteed at the signing of the Magna Carta.

As a result of the second decision, the court is now acknowledging that current participants in the fishery do have a legal right to be there, and it's suggesting that some balance be achieved. Still outstanding is the question of what is that balance.

First off, the second Marshall decision makes it clear that the right is a local right, and if it's a local right, does the local right extend to lobster? That would seem to me to be the first question we could ask, seeing as we are talking about lobster this morning. If there is a treaty right to lobster, to what extent can that right be exercised? What would be the desired balance?

Have you thought about those three issues or thought about the question in those terms?

Mr. Hector MacLeod: From our reading of the first decision that came out—and we'd have to have it further clarified—the federal minister does have the right to regulate the fishery.

Now, what is moderate income for a native versus a non-native? I don't know whether or not I could be the judge of that, but I do believe that within the Supreme Court decision—and I think you touched on it—this moderate living is to be a communal right, not an individual right. It's a communal right, although individuals are exercising that right.

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What is a moderate living for a community? I don't know. I think every community in Atlantic Canada would be different. Every community in Prince Edward Island would be different. I don't know exactly where you strike the balance on that, as to what would be a moderate living for a community.

Mr. John Cummins: I was certainly very pleased when I read the second decision. It said the court denied a rejudgment, but in fact it did just what it said it wasn't going to allow—it did give a rejudgment. Unfortunately, the statements in it were limited by the application, which dealt only with regulation, so some of these questions have been answered.

Does it appear to you that the reality is that there are still a lot of unanswered questions out there, a key one being this issue we're talking about that you've mentioned here again? That is, yes, there must be a moderate livelihood earned, but then when it's the communal access, how do you put a number on a moderate livelihood when you're dealing with communal access and when the federal government has no right, it would seem, to determine who the members of community are?

Mr. Hector MacLeod: What point in time are we talking here to determine what is a communal living? Are we talking when the treaty was signed in 1760? Are we talking the 1900s, or are we talking now, 1999? A lot of things have changed over the period of years since this treaty was signed. The fishing industry in Prince Edward Island and the lobster fishing, which I think is what we're speaking about here, is more important to Prince Edward Island probably than any other province in Atlantic Canada, because we're never greatly dependent on the ground fishery. The lobster fishery is very important, and the crab fishery is becoming important too.

The lobster fishery, as we know it today, is worth $120-some million dollars in Prince Edward Island. I might suggest to you and to your committee that if the lobster fishery were worth $5 million a year, would these people be anxious to get into the fishery? If the lobster were worth fifty cents per pound rather than five cents, would they be anxious to get into this fishery, or would they look at another fishery, such as the ground fishery, smelt fishery, what have you?

There are a lot of different things driving this whole thing, and the reason we have lobsters today that are worth $5 a pound is the fact that the fishermen, the commercial fishermen, accepted conservation measures over the years. Since 1960 through to this point in time it's been conservation, conservation, conservation. Not only that, but we've now, in this province and other provinces in Atlantic Canada, found new ways to process our lobsters, found new markets for them. Did they take part in that? There are a lot things here we have to look at.

I don't mean to be unfair to the aboriginal community. I think on this issue we have to speak the truth. Somebody's going to take a lump or two before we get out at the other end, but let's take it through the process and get on with it.

Mr. John Cummins: I appreciate your remarks. Thank you very much.

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I have read the notes presented by the witnesses. I was especially interested by what had been written in regard to the Court's decision.

You say that the Court has clearly stated that the government can regulate the fishery industry. I think we both agree on this point. But I am especially interested in that you seem to say, or maybe I misunderstood, that when the parties signed the treaty, the court opened the door to the possibility that restrictions could be applied to certain species of fish.

[English]

“The court opens up the possibility that some restrictions may be placed on the type of fish which may be covered by the treaty right”.

[Translation]

I don't remember having noticed that when I read the judgement. Would you like to propose that Aboriginal people be excluded from fishing for some species?

Second, how can we reconcile your question with the fact that the judgement in the Marshall affair involved an Aboriginal fisherman who was fishing for eels? After the judgement was given, Aboriginal people who fished for lobster presented claims.

• 1155

I did not imply restrictions; I was simply forwarding a topic for discussion. But maybe I do not correctly understand the point you are alluding to in your document. I will let the witness answer.

[English]

Mr. Hector MacLeod: I didn't hear as clearly as I would have liked to, but your question, I believe, is what species of fish the treaty allows the people to fish.

Now, maybe I'm taking this completely wrong, and I don't know if I could point to the exact place where it clarifies the fact of one species over another, but in my mind it seems to have rung somewhere along the way that it was a species that was traditional to the native community at that time. I could be totally wrong on that, but that's where I'm coming from on that.

You're quite right in saying on the Supreme Court case Mr. Marshall was involved in he was fishing eels at the time, yes. Then that overflowed into what we're dealing with here today, which is the lobster industry or the crab fishery or what have you throughout the Atlantic region.

I don't know if that answers your question or not, but as I said, I'm not quite clear on the question. Maybe my colleague, if he picked up on some of that, could further elaborate.

Mr. Robert Morrissey (Member of the Legislative Assembly of Prince Edward Island): Well, the whole question goes back to the date of the original treaties that were signed and the subsequent legal text language flowing from the willingness to live under British law. Canada is derived from British law. Our own laws came primarily from the Parliament of Britain, and we built upon those.

The question on the ruling in the treaty is what particular species the native community traditionally relied upon. Is that the question facing your committee, or is the question facing your committee what particular species is the native community interested in pursuing today to earn their moderate living? That part is not clear in the subsequent decision of the Supreme Court.

Some would argue, I suppose depending on the side of the spectrum you're on, that those rights should only involve the traditional treaties that were pursued by the native community at the time versus those species today that are lucrative that were not lucrative at the time.

We heard a couple of presenters point out here, I think it should be known, as Mr. McGuire would know, that the lobster fishery only really became a subsistence fishery in the late seventies. Up to that period the fishery barely covered the expense of pursuing it, and people moved in and out depending on need, because the whole licensing regime was not as complex as it is today. As my colleague pointed out, and I believe some presenters pointed out too, if you could quantify the lucrativeness of the fishery, I guess the period would begin in the late seventies when the fishery started generating price return to the fishermen and catch-wise that made it valuable.

So the argument extended to the whole tuna fishery, which in P.E.I. is not close to Prince Edward Island. There's the whole snow crab fishery. Are those fisheries that were traditionally pursued by the native community? That's what my colleague was pointing out.

The Chair: Mr. O'Brien and then Sarkis.

Mr. Lawrence O'Brien: Mr. Chairman, it's great when we get politicians coming to the table to speak to politicians.

I have to say to Mr. MacLeod that as the parliamentary secretary to the Minister of Fisheries and Oceans, we never heard from you. You made no request to us for any information. We responded as quickly as we could.

The latest judgment that came down from the Supreme Court clearly verifies that we were on a course of negotiations rather than litigation. It seems to me that obviously you don't have any aboriginal people in your riding; you must not to make the comments you made.

• 1200

I think there is a process you could follow. I think you're taking advantage of the situation here this morning. There's a process in place that you could follow. You could call the minister, you could call me, you could call an official, and you certainly would have gotten some understanding of some of these points. You certainly can talk to Mr. MacKenzie or the other gentleman, Mr. Thériault. So I'm a little off as to exactly where you're coming from.

Mr. Hector MacLeod: I will ask you a question. How long do you think it takes a letter to travel from Prince Edward Island to Ottawa and then from Ottawa back to Price Edward Island? How long does it take?

Mr. Lawrence O'Brien: It doesn't take very long.

Mr. Hector MacLeod: I wrote one over a month and a half ago to your federal minister, sir, and I've not yet received an answer from the minister concerning this very issue.

If you're suggesting for one minute that I'm playing politics with this issue, that's your right to suggest that, but I want you to know that this fishery, mister, is a very important fishery to this province, and every man and woman in this room knows what has gone into the fishery over the years to bring it to where it is today. They do not want to see it slide out from underneath them. They have no problem with the native people being in the fishery, none whatsoever, as long as they fish side by side in just the seasons that are set out to be fished. Then everything will go along fine. There are no problems with that.

To say that I am against the native people of this province, no, I certainly am not. Furthermore, sir, you say I have no natives in my community. Yes, there are some people within my community. There are people who fish in the waters the fishermen from Alberton fish from, and also down through Malpeque. I myself have a little native blood flowing through my veins as well, so don't sit there and tell me that I'm against the native people.

Mr. Lawrence O'Brien: You sent a letter to the minister on this issue?

Mr. Hector MacLeod: Yes, I did.

Mr. Lawrence O'Brien: Is it on this issue? You had no response to it?

Mr. Hector MacLeod: As of this date, no, I've had no response.

Mr. Lawrence O'Brien: Thank you.

Mr. Robert Morrissey: Mr. O'Brien, we can provide you with a copy of the letter, written twelve hours after the decision came down, where Mr. MacLeod clearly articulated his concern and posed a host of questions. The minister either chose not to respond or hasn't responded as of yet. As well, Mr. MacLeod was contacted on several occasions over the past number of months and has taken it upon himself to go to Ottawa to meet on a couple of fishery issues. The response from the federal minister on this hasn't been deafening.

The Chair: Can you forward a copy?

Mr. Robert Morrissey: We'll get a copy of it to you.

Did you say you're the minister's parliamentary secretary?

Mr. Lawrence O'Brien: That's correct.

Mr. Robert Morrissey: Obviously he didn't share it with you either.

Mr. Lawrence O'Brien: I didn't see it.

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: This is fascinating. In less than a week we've had our parliamentary secretary for fisheries and oceans and the Solicitor General of Canada, Mr. MacAulay, accuse politicians of playing politics. I guess that's what we do. That's what we do for a living.

Although I may not agree with everything—

Mr. Robert Morrissey: I'd be surprised if any of you get elected.

Mr. Peter Stoffer: There are a couple of things I do have. One is to mention that we talked about enforcement at this table with several groups and the fact of the need for additional enforcement. I would encourage you to encourage the DFO—which, by the way, is locally inadequate in any sense of the term, and that's just the tip of the iceberg—that if there is to be increased enforcement, the DFO should bear those costs and not the fishermen. The fishermen bear too many costs as it is already in the downloading of many fees.

There is another thing I'd like to mention. You had mentioned the British rule, the law, and everything else, and I guess the willingness of us over here to abide by the British rule. I may be mistaken on this and maybe out of line when I say this, but I don't think for a second that aboriginal people in this country ever wanted to live under British rule or British law in any way, shape, or form. I'll let them say that for themselves.

Do you believe it is better to negotiate than to litigate?

Mr. Robert Morrissey: Yes.

Mr. Peter Stoffer: Asking that question, do you believe in the industry alliance's aspect when they had called for a stay of the decision? Did you support that initiative?

Mr. Hector MacLeod: Yes, I guess I thought of it.

Mr. Peter Stoffer: So you would agree that they should have asked for a stay of the decision in order for clarification. I can appreciate why they did that.

Mr. Hector MacLeod: Yes, and I think since that time we've had a clearer opinion about the thing.

Mr. Peter Stoffer: Very good. But would you not agree that it's better as elected officials, which you are on the island, as elected officials in the House here, and we are as parliamentarians, to negotiate with all stakeholders instead of allowing the courts to decide for us?

When it goes to court, it's like a divorce. If you can't settle your differences between each other, the court is going to decide, and someone's going to lose or give the perception that it's not fair.

• 1205

The reason I say that is we, as parliamentarians, for years have severely lacked in the negotiation process. We have basically told the aboriginal people time and time again to take their case to court, we're not going to listen to you. That's what they did—Sparrow, Delgamuukw, and now Marshall. When do you think this federal government and yourselves as elected officials are going to get it in our heads that it's better to negotiate than it is to litigate?

Mr. Robert Morrissey: My only comment is that we currently reside under certain laws of our Parliament. Our Parliament is derived from the British Parliament, and it was the British government of the day.... Yes, for all its flaws it has worked fairly well. But the British government was the one that signed the treaty. That is my only comment there.

As far as negotiating, I sat in on committee hearings, the same parliamentary committee.... Was it in the spring or a year ago?

The Chair: Spring. Two springs ago.

Mr. Robert Morrissey: And the fishermen came forward at that time pleading to DFO to beef up its protection. In fact I think its protection was adequate. There probably could be an additional legitimate burden put on the fishery, because I take it there is an illegitimate fishery going on because DFO simply don't have the resources to protect the fishery. And since that time I don't think anything has happened. If you talked to fishermen this summer, they said there's no change as far as the department's willingness to beef up its protection in this area.

Now we have a case where, yes, at the end of the day there's going to be a negotiated solution. And I would put forward that however you come up with it, the pressure on the fishery cannot exceed what is there today. You people as politicians.... Surely some politicians in this country have learned from the fiasco on the east coast, and indeed the west coast—collapse of stock simply by too much pressure being put on them.

The common denominator, or what is the balance, must be one of conservation. I don't think anybody is saying or putting forward that the natives should be denied access to the fishery. I don't recall hearing it or seeing any of it, just seeing strong emotion on both sides, but it must be conservation.

So if you're going to put more demands on conservation, then the first question must be is the federal government prepared to give the department the resources, or indeed is the department itself going to allocate the resources, to protection? I recall hearing a comment from the last time. I believe one or two people gave the statistic—it could have been you, Mr. Stoffer—about the number of personnel in DFO in Ottawa. Well, there are no fisheries to protect in Ottawa, but there is a valuable fishery to protect on both the west coast and the east coast.

So there must be a balance. Negotiated, yes. I think negotiation always arrives at the better solution. But as my colleague said, the clock is ticking.

The Chair: The clock's ticking here, too. Mr. Assadourian.

Mr. Sarkis Assadourian: Thank you very much.

I have two questions. Can you give us an indication of what the contribution is of the fisheries to the economy of P.E.I., dollar-wise, and how many jobs it creates compared to the GDP of the province? That's my first question.

Secondly, do you see any value for Mr. MacKenzie to continue his work? If you ever had a meeting with Mr. MacKenzie, either at the suggestion of your party or at the suggestion of the provincial government, between the fisheries minister or what have you, just tell us briefly if you have any expression of concern about MacKenzie's work, or appreciation—an evaluation.

Mr. Hector MacLeod: If I could, the puzzling part of the issue is that you people as a committee are around the country now, especially Atlantic Canada, having hearings on this very issue. Then you have Mr. MacKenzie and you have another gentleman who was hired two weeks ago out negotiating with the native community. Who's doing what here? Is this all being fed back to the federal minister? When is he going to make the decision? Is he making the decision now, as the lobster season approaches in southwest Nova Scotia? Will there be a decision made before—

Mr. Lawrence O'Brien: Yes, there will.

Mr. Hector MacLeod: There will be?

Mr. Lawrence O'Brien: There will be.

Mr. Hector MacLeod: All right, then, what you people have done in your hearings—will you get that information back to the minister before Mr. MacKenzie goes out and negotiates with them?

Mr. Lawrence O'Brien: He's not just meeting with native people. These two gentlemen—

Mr. Hector MacLeod: It doesn't matter whether they are natives or non-natives. The question is—

Mr. Lawrence O'Brien: These two people are retained to deal with all—

Mr. Hector MacLeod: —has there been a decision made?

The Chair: Order.

Mr. Hector MacLeod: Now, as far as the economy of the province is concerned, yes, this is the third-largest industry in Prince Edward Island. The fishery is the third-largest industry in the province of Prince Edward Island. My figures, sir, are probably off a little, but last year I think it brought in something like $125 million to the province of Prince Edward Island.

• 1210

Mr. Robert Morrissey: That's direct line of value.

Mr. Hector MacLeod: A direct line of value. Then you have the processing after it.

Mr. Sarkis Assadourian: How much would you make in GDP after processing?

Mr. Robert Morrissey: If the fishery is valued at about a half billion, the GDP is around two billion. It's a significant part of it. It employs about 12,000 people in the processing sector and on the fishing boats. The lobster fishery has been extremely good to Prince Edward Island and the small rural community.

The Chair: Mr. Cummins, very quickly, and then McGuire.

Mr. John Cummins: Very quickly, I want to make three points here, and then if the witnesses would like to comment they may.

In response to Mr. Stoffer's statement that it's better to negotiate than to litigate, in the first instance, after the September 17 decision, all parties were not equal. In fact, in any negotiation the people who are parties in the negotiations should be off on the same ground; they should be equal. And that wasn't the case.

You'll recall of course that after the September 17 decision the view of the native community was that they had a constitutional right to fish, a constitutionally guaranteed right, and they suggested that fishermen only had a privilege granted by the minister. You can't negotiate when that's the situation. It's also well to note that after that September 17 decision, the federal government was prepared to negotiate away provincial resources. Again, you can't simply negotiate; you can't just forget about the courts, even when you begin negotiations.

The third point is when the feds negotiate on behalf of fishermen, fishermen tend to lose. You'll recall the Sparrow decision granted section 35 rights, rights to fish for food, social, and ceremonial purposes. However, as a result of that, the federal government instituted, on the west coast, separate native commercial fisheries. They said Sparrow made them do it. It took us a year to convince them that Sparrow didn't make them do it, and then they said that it was a policy and that they were merely anticipating decisions that were coming through the system.

When those decisions did come down, in Van der Peet, Gladstone, and NTC Smokehouse, it was allowed that natives did not have an inherent right to a separate native commercial fishery in the Fraser River. But by that time the federal government had already negotiated away half of the resource, half of the commercial fleet's opportunity in the Fraser River.

Negotiate rather than litigate? Maybe, but it's only if the parties are negotiating from an equal platform and it's only if the Queensberry Rules, so to speak, are at play. That certainly isn't the situation.

A voice: Hear, hear.

The Chair: Is there a question in that?

Mr. John Cummins: I had to respond to Mr. Stoffer; I couldn't let him off the hook. I don't know whether there's a question there or not.

Mr. Robert Morrissey: I think I'd agree on some. I'm not so sure if I'm the fisherman that I'd want to put my livelihood's negotiating ability in the hands of the federal government. Their track record doesn't show they have served the fishing industry, native or non-native, very well in that case. Look at the devastation on the Atlantic coast.

I'd have to disagree with you on one of your points. The early decision did allow, it was clear, the minister the authority to regulate. I think that was part of the problem. This case went to court in 1990; it went to the Supreme Court. It's been there for nine years now. So are you trying to tell the people, the fishermen, and us that the federal government really were caught with their pants down that badly that the decision arrived here at the last minute and then there appeared to be chaos for some time? In fact there could have been the loss of life. I think it is almost bordering on criminal for the federal government and the minister to have allowed that to happen.

The case could have gone a number of ways. It shouldn't have been too difficult to predetermine a number of options. That's what my colleague pointed out. But the minister still had the ability to regulate. In fact, when it got almost explosive, the minister finally moved in and imposed some, and there's been relative calm since and we've moved along. I don't think the federal government was left without tools to maintain law and order and regulate by the first decision. I don't agree with the premise, if that's one you're taking.

The Chair: Next is Mr. McGuire.

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

I'd like to welcome the two members to this committee. They're both from—

Mr. Robert Morrissey: Joe's our MP.

Mr. Joe McGuire: —my riding. Hector used to be a lobster fisherman and Bobby was a lobster fisherman also. I fished with his father, and his family is still heavily involved in the fishery.

• 1215

I want to know your opinion, gentlemen, of what the court has said—and it's come up here a number of times this morning—on the issue of “moderate living”. I wonder what your opinion is with regard to whether you can negotiate or legislate somebody to have a moderate modern living. What kind of stew are we getting into? And especially if you bring quotas in, you could regulate maybe income by quotas in a way. The danger is of course that this could be extended to everybody. Then you get into a real mess. But are we wasting our time by trying to get to the bottom of moderate living, or should we just say so many new people in the aboriginal community have this ability to fish and just leave it at that?

Mr. Robert Morrissey: I think the industry generally is quite opposed to quotas, because the track record has not been good—and somebody raised a concern on it on this side. That's only one step away from the true corporatization of our inshore lobster fishery. The one that has served Atlantic Canada well has been inshore regulated fisheries, while it's been the corporate side that has exploited the resource. It's been called by the province into it. And you can see why fishermen get so upset when there appears to be a decision that would put added pressure on the fishery that has been so regulated. We're seeing the benefits of that.

I'm not sure if anybody in the room would recall, but I recall there was a time when if you went to school and had lobster sandwiches, you were considered the poorest in the community. Imagine the same thing today—now you can't afford it. But there was a time when the children from the fishing community went to school with lobster sandwiches because that's all they had. So it symbolized the poverty.

So a lot has come.... The fishing business has sacrificed a lot over the years to make this a lucrative fishery.

I think you have to negotiate, Joe. I don't know how one would legislate moderate living, and I would be afraid of what the courts would attach to that. I really would. So I feel strongly that one has to negotiate. Clearly rules have to be put in place quickly as the seasons approach. And at the end of the day, whatever the decision is, the effort on the fishery must be constant. It can't increase.

So within those parameters, you people, the federal politicians, Mr. Easter and the rest, have to come up with the solution. It's not going to be easy, but I think the road map got a little bit clearer, would you not say, over the last week or so, clearer from a negotiating perspective. But what you had going on for two months, where people sitting home watching TV in this country could see the animosity and the antagonism that has resulted between two groups who live together, cannot happen again. It shouldn't happen again.

The Chair: Thank you.

Mr. Hector McLeod: I think the courts made an attempt to clarify that, Joe, when they said to provide necessaries for the families. But what is “necessary”? How do you determine that? As I said earlier, and as Bobby just said, the fishing community of Prince Edward Island, and more so in Atlantic Canada, was not always perceived as the wealthy community it is today. People think it's a wealthy community, but take it back to the 1950s, 1960s, 1970s, and 1980s—a lot of the lobster fishermen had a job on the side to make a living. They weren't making a lot from the fishery. They had two different jobs on the go.

The Chair: I have a final question, Hector, spinning off that, which is the question I raised earlier.

The Supreme Court was very clear in its original decision and didn't change it in its clarification. In there they say:

The accused's treaty rights are limited to securing “necessaries”...equivalent to a moderate livelihood..and do not extend to the open-ended accumulation of wealth.

So they're saying that the treaty right should produce a moderate livelihood.

An hon. member: What's a moderate livelihood?

The Chair: That's the question.

• 1220

My question to you is the same one I raised earlier. Suppose we define what a moderate livelihood is. The Supreme Court is saying that can be done by regulation, without violating the treaty rights in terms of how we achieve that. So we set a moderate livelihood in 1999 or 2000. Three years hence, you have problems in terms of the lobster fishery, in terms of catches, or prices go to hell and fall through the floor. What happens then, in your view?

If the decision that we make is based on moderate livelihood and it's higher, but something happens in the industry and the livelihood drops down, what does that mean at that point in time? Do you have to increase the native allocation or what?

Mr. Hector MacLeod: No, the livelihood for natives and non-natives at that time would decrease or increase, depending on how the catches are and what the price of the fish are at the present time.

The Chair: But that's not what the Supreme Court is saying, so how do you deal with that one? Anyway, I guess that's—

Mr. Hector MacLeod: I'm not a legal mind, so I can't—

The Chair: But if you have an answer, we'd like to hear it.

Mr. Hector MacLeod: There's one thing. Mr. Stoffer brought up a point there earlier, when I was at the back, and that's this ITQ. That would mean a very dangerous precedent being set. We know what has happened to our Atlantic cod fishery through the same damn process. Are we going to allow this to happen to the lobster?

Mr. Peter Stoffer: The reason I bring that up is—

The Chair: All right, we're going to have to adjourn the discussion down there at the corner of the table.

Thank you for your presentations, gentlemen.

We have one more presentation before lunch, and that is by Craig Avery, who's with the Western Gulf Fishermen's Association. Is Mr. Avery here?

Welcome, Mr. Avery. Go ahead with your presentation.

Mr. H. Craig Avery (President, Western Gulf Fishermen's Association): Thank you, Mr. Chairman, members of the standing committee. I take great honour in being asked to make this presentation on behalf of our fishermen in regard to this complex issue.

As president of the Western Gulf Fishermen's Association, I would like to give you a brief summary of our association. We are a nine-member board representing 250 core fishermen, of whom 180 are paid members. The Western Gulf Fishermen's Association was formed 14 years ago to represent fishermen from North Cape through Hardys Channel on the north shore of P.E.I. Our main fisheries are lobster, herring, tuna, and mackerel.

On behalf of our fishermen, the first point I'd like to make on the Marshall decision is that all fisheries of the future, native or non-native, must respect the seasons that are now in place. The majority of the fishermen I represent are very conservation-minded. In the past they have taken many measures to conserve stocks so that our future generations will have access to the resource. With this in mind, I ask your committee to strongly recommend to the minister that no increased effort be added to an already stressed resource.

I would like to make a recommendation for your consideration regarding the establishment of a new native fishery. For any new fishing effort that is going to be made by the natives, an equal amount of licenses should be purchased by our government from retiring fishermen, offering an incentive of no capital gains on the sale. Also, a purchase may not be necessary. The government could transfer surplus resources of, for example, northern shrimp or snow crab, to existing fishermen in exchange for lobster licenses.

Again, I would like to thank you for inviting me to make this presentation. Our association looks forward to working with all interested parties involved in order to find a peaceful solution to resolve this very tense issue.

Thank you very much.

The Chair: Thank you, Craig.

Mr. Cummins.

Mr. John Cummins: Thank you very much for coming here this morning, Craig.

Is your association familiar with the seven principles set down by the alliance?

Mr. Craig Avery: I'm familiar with some of them, yes. I've read them over.

Mr. John Cummins: Would your association be supportive of those principles?

Mr. Craig Avery: We are supportive of the main principles, but we're not 100% sure that we want to support the alliance. We haven't joined it yet, but we've had representatives attend their meetings.

• 1225

Mr. John Cummins: In your presentation, here at the bottom, you make the recommendation that the government could transfer surplus resources, and you suggest northern crab or snow crab. Have you discussed this suggestion with other groups or with the groups involved, or is it just your view?

Mr. Craig Avery: It's the view of our association, the fishermen I represent.

I and the fishermen I represent are actually adjacent to Malpeque Harbour, which is the area where there's a lot of concentration. Everybody knows that's where the native community is here. What we'd be asking for there is, for instance, northern shrimp. A present lobster licence-holder may want to sell his lobster licence or turn it over to the government to be issued to the natives, and then go fish shrimp instead of lobster. So you're taking stress off the lobster stock and adding it to the shrimp.

There may be access to snow crab quota in the future, or there may be access to quota right now. Or you may be able to buy out a snow crab fisherman right now and put a lobster fisherman in the snow crab industry. That way you're sharing the burden. You're taking the burden off the lobster fishery. And you may be able to do it with other fisheries, whether it be groundfish or whatever. You may be able to offer that incentive.

Mr. John Cummins: So really what you're suggesting, to get to the nub of it, is that in fisheries, where a surplus may exist, maybe folks could be directed to that, rather than interrupting the current state of affairs in whatever fishery that may be.

Mr. Craig Avery: That's it exactly. Look at the groundfish situation right now. This is the first year in seven years that the moratorium has been lifted. Do you want to go and issue a whole lot more quotas to the native community in groundfish? When you look at that, you might be able to take somebody out of the groundfish and give them something else. I know the natives are going to be interested in groundfish, so therefore we have to accompany that.

Mr. John Cummins: Earlier on, when others were talking about the buyback program, the notion came up that if the sons or daughters of existing commercial fishermen wanted to buy a licence and the government was engaged in a buyback program, those individuals could get into a negotiating or a bidding war almost with the government over the licence. It could push the price up to the point where those sons and daughters would not be able to participate in the fishery. They wouldn't be able to afford to.

Have you thought about that implication of the buyback and the problem a buyback may impose on others who want to engage in the fishery?

Mr. Craig Avery: Yes, that's in the back of my mind. I have two boys coming up, and maybe someday they're going to want to fish. But I don't see that being a problem.

To me, when a person retires from the fishery, no matter what's going on at the present time, he should be able to get whatever the market value is. If the creation of a native fishery is making the market grow so that the price is going higher, then no, I don't see a problem in that.

Mr. John Cummins: Okay.

The Chair: Thank you, John.

Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I would like to thank the witness for coming to meet us this morning.

I would like to start by making a comment about the two witnesses we heard earlier. I think that it is important to make one thing clear at this stage. People sometimes ask themselves why the Standing Committee on Fisheries is holding audiences. First, we have the opportunity to meet Aboriginal and non-Aboriginal people at the same table and hear them talk about what they believe to be their rights. I think this is the first time we have been able to compare the two sides and to learn. If we had had more information earlier, the incidents that had occurred might not have happened.

The witness states in his recommendation that he wanted to benefit from a surplus of resources. He says that snow crab or shrimp resources could be transferred in exchange for lobster fishery licences. I do not know if the witness has been told about the report the Standing Committee prepared two or three years ago concerning the east coast. Mr. Baker was then the chair of the Committee, and the current chair was also a member of the Committee. In this report, the federal government and Fisheries and Oceans had been requested to review the manner in which they managed the total number of catches allowed.

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The client has mentioned the problem of redistributing resources to Aboriginal fishermen. The redistribution problem existed even before the Aboriginal claims were made. Does the client believe that we can take advantage of the fact we must resolve the Aboriginal problem to review the manner in which catches are managed? Second, does the client believe that he would be best served if decision-making was decentralized? If people from Prince Edward Island had the power to resolve these problems, would the problems be solved more rapidly? Like some people had mentioned earlier, it takes a letter three to seven days to get to Ottawa. Does the client wish to make a comment?

[English]

Mr. Craig Avery: Well, I guess in answering all that I'd have to say, definitely, I would be. I realize there's a process. I guess it would be nice if it were a perfect world and we could all maybe pick up the phone and make a phone call and get the answers overnight. But in answer to your question, yes, I'd like to see more negotiations, and I'd like to see more consultation among the fishermen. Yes, probably a committee should be put in place, but as I say, there are different sides and different ways to go about the process. Like I say, if it were a perfect world, we could pick up the telephone tomorrow and call and have a consultation, but I think we have to go with what we have in place right now.

The Chair: Mr. McGuire.

Mr. Joe McGuire: Thank you, Mr. Chairman, and welcome, Craig.

Following up on Mr. Cummins' question about reducing the efforts on one side and increasing it on the other and the buying of selling of licences, I would imagine that if licences are going be to retired, it would be the value of the licence plus. I don't want to get into what the plus would be, but the committee is looking for suggestions. I don't think people are going to accept just the value of the licence in order to retire. They're going to need some kind of incentive, and rightly so, to vacate the fishery.

We have only 30 crab licences. We don't have any northern shrimp; we have no access to northern shrimp at all. Should the aboriginal access to the crab fishery be in excess of what is there of those 30 licences, or do you feel it's necessary in that fishery also, that the fishery couldn't sustain any more effort? It's also a limited fishery now. Or how do you get some of the so-called moderate income out of another fishery? Do you see an increase in quota for that fishery, or do you see people getting bought out?

Mr. Craig Avery: The reason I bring that point to the table is, from what I understand, there are very few natives interested in participating in the mid-shore snow crab fishery. So what I'm pointing out is that you could take licences out of it.

I'm not saying no more added effort, but you could take licences out of it. You take a lobster licence for a snow crab licence, and you take an effort off the lobster fishery. There's no increased effort there, because somebody's selling the lobster licence and they're going to fish snow crab. You're also giving the snow crab fisherman who just wants to retire a chance to retire on that. You may be able to buy one snow crab and get two lobster licences for it. I don't know how much. When you look at the income of each fishery.... You'd have to look into that.

I think that would definitely be one way. As I said, you're sharing the burden here. You're letting the snow crab fishery take a certain amount of the pressure off the lobster resource also.

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Mr. Joe McGuire: I don't think anybody is suggesting that the lobster fishery has to take the full brunt of the moderate income to be shared across the industry as a whole. I was wondering whether the the snow crab fishery can sustain more effort. Rather than take some of the 30 licences, the limited number of licences we have in P.E.I.... We don't have great access to that fishery anyway. Why take a licence out of that fishery at all? Why not just increase the effort? The biomass on that seems to be such that it might be able to sustain it.

Mr. Craig Avery: I'd like to get out of the room alive, so I don't really want to comment too much on that.

I know what you're getting at, Joe. I think the biomass in 2002 is going to be able to sustain a good bit of increased effort. I'm not exactly sure of the biology of the whole thing, but I think the snow crab goes down the road, and it goes back to where you have to take effort away from it again. That's why in P.E.I. and New Brunswick additional permits were issued. You'll do that for two or three years. In the last couple of years there were no permits, and that's the reason. Maybe in the next three or four years you could add additional effort and it could sustain it, but down the road you may have to come back out. So then what are you doing? That's the point I'm trying to make.

Mr. Joe McGuire: Getting into this moderate income, it gets more confusing all the time. Nobody knows what the biomass of the lobster is, period. We have some idea of what the biomass is of the northern crab. But to get into a moderate living and setting a figure, I just can't see us getting anywhere if you're going down this track. If people are getting into a fishery, whether they be aboriginal or non-aboriginal, I don't think you can put a figure on saying you can earn this much and no more.

Mr. Craig Avery: It's hard. It depends on who you're talking to when you talk about a moderate income. My moderate income may be a lot lower than yours, or vice versa. So you're waiting to find this moderate income.

Mr. Joe McGuire: Okay. Thank you.

The Chair: Thanks, Joe.

Mr. Stoffer.

Mr. Peter Stoffer: I want to comment on the remark made by my colleague from the Reform Party about negotiation and litigation. If he's trying to say he doesn't want this current group at DFO to negotiate anything, I would have to agree with that. My God, what they've done to us so far.

In your organization of 250 core fishermen, are there any aboriginal people?

Mr. Craig Avery: No, there aren't.

Mr. Peter Stoffer: Why would that be? Just nobody fishing of aboriginal—

Mr. Craig Avery: I don't know if there are any aboriginals that are core fishermen right now in our district.

Mr. Peter Stoffer: Okay.

One thing that has been discussed a lot in the Digby area is a system of community-based management. We can decentralize Ottawa and basically make 200 Kent Street a new apartment for the homeless people of Ottawa. We could transfer most of those people into the areas where the resource is.

I believe DFO should have the final authority when it comes to conservation. But I believe a lot of those decision-making processes should come from the community, from the area where people are most affected by the decisions. In too many cases we get Ottawa-based decisions, for example, for an Atlantic Canadian resource, which just doesn't work. Just look at what's happening now.

Would you agree? Has your group discussed at all the aspects of a community-based management system on various quotas, various traps, various seasons, basically the whole gamut?

Mr. Craig Avery: Definitely, we've been pushing for that for years. You'll not get a fisherman in P.E.I. who would want DFO to regulate anything on their own, because everything they come down with just doesn't make a whole lot of sense. A lot of these consultations, I get tired of coming to them. We're almost at the end of November right now. All of a sudden we're going to be into Christmas, and everybody is going to want to go home for two weeks, and we're going to keep going and going and going with these consultations.

All of a sudden there's going to be an eleventh-hour decision. They're going to point the finger at the Department of Fisheries and Oceans and say tell them what they're going to do. There's going to be another big war they're in. That's how I feel. No, I don't think DFO....

We've already taken steps. We've already met, my group alone, plus the P.E.I Fishermen's Association. I represent 30 fishermen who fish in Malpeque Bay, a Hardys Channel fishery. As I said, because of that, I feel it's more of a personal problem. I fish directly outside of Lennox Island. I fish south of Alberton, which, if you looked at a chart, would take you right off Lennox Island.

Yes, I'd love to sit down with the natives. I've already sat down with Mr. Sark, and we had a great conversation. I think we could work it out on our own.

This standing committee can work. With regard to the recommendations you're hearing here today, what would I like to see done? It's very simple. It has already been done. You keep coming back and asking if there should have been a stay. I disagree with that. I know I'm going to go against the grain there, you people. That has already been done. We discussed that with the minister.

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Made mistakes...? Yes, maybe there should have been a stay. Maybe we should have interpreted some of the regulations that were given to us, but that didn't happen. We have to quit going back to that. We're on the right track here. Move it, but fast.

We'd also like to see regulations in place for the year 2000 season. Let's not look at some year 2000 hence: make it the year 2000. Then you'll sit down again next November and we'll talk again. We'll see how it went. That's why I say it should be a short-term decision.

Mr. Peter Stoffer: Okay.

In your recommendation you basically state that instead of a buyout you could have a transfer of surplus resources, for example, northern shrimp.

You obviously know about the principle of adjacency. Does your group support the principle of adjacency? First of all, do you support the adjacency principle, meaning that those who live near the resource should have first access to the resource? I'm thinking about the people of Labrador, the people of Nunavut, the people of Fogo Island, for example. There are an awful lot of P.E.I. fishermen, for example, who catch tuna literally right off the dock at Canso—

Mr. Craig Avery: And halibut.

Mr. Peter Stoffer: And halibut, yes, yet very few people from Canso or Sambro, for example, are allowed to catch tuna because of the licensing. That's always been a problem. That's why I think a community-based management system can offset those concerns and people can work together.

It's not just aboriginal and non-aboriginal differences. There are also many differences even on P.E.I., such as carapace sizes, like we heard about earlier. If you enter your boat into a certain harbour and start to lay the traps, the chances of you trying to get out of that harbour with your traps are slim to none. That's why I asked that question on the community-based system.

Mr. Craig Avery: I believe the people in Labrador should have more access to the northern shrimp than the people in the western part of P.E.I., but it's a federal resource and there should be access for everyone. Therefore, if there's extra quota in the northern shrimp and a fisherman in the western part of P.E.I. or any part of area 24 wants to retire his northern shrimp licence and the natives can take that licence and put it in the system, it's not adding any increased effort, so then, yes, I think it's a great idea.

The Chair: Okay.

I'm not going to let you get into that, Lawrence. I know you want to get into the shrimp fishery. We're not holding a hearing on that today.

Thank you, Craig, for your presentation.

We will adjourn till one o'clock.