STANDING COMMITTEE ON
FISHERIES AND OCEANS
COMITÉ PERMANENT DES
PÊCHES ET DES OCÉANS
[Recorded by Electronic Apparatus]
Monday, November 22, 1999
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
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
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
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
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
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
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
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.
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
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
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
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
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
Mr. John Cummins: So what you're saying in essence
is that then the lobsters are being harvested in a
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
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
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
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 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
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.
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.
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
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 Chair: Who wants to take it?
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.
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.
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
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?
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
Mr. Sarkis Assadourian: So Mr. MacKenzie is
allowed only to deal with the natives—is that what
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
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
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
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,
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
Mr. Peter Stoffer: Yes.
Mr. Paul Pickering: I don't believe there are. Are
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
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
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
So you can claim with certainty that there's
no illegal fishing going on by non-native people in
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
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?
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
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
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
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
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
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.
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
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
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.
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
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
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
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.
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
I think those are some issues that have to
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
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
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
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
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
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
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
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
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
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.
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 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
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
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
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.
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
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. 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
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
Could the witnesses provide more information about the issue?
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,
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
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
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
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
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
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
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
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
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,
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?
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
Mr. Joe McGuire: So your commercial fishing
licences follow the licensed fishery. Out of what
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
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
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,
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
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
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
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
Fisher organizations, the political leadership, and
related interest groups must all accept the eventual
entry into the commercial fishery by the Mi'kmaq
The Chair: Thank you, Mr. Augustine.
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?
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
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?
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.
The Chair: Mr. Augustine, I know Mr. Bernier has a
different definition of brief from most of us, but
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.
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.
The Chair: Sorry, Sarkis, we'll come back to you.
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
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
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. Peter Stoffer: Thank you very much for your
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.
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
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
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
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
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.
Mr. Sarkis Assadourian: And on the final question,
on what points don't you agree with the commercial
What are your concerns or beefs, if I can put it that
way? What do you think is wrong that should be
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
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
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 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,
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.
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
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
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
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
The Chair: Thank you, Mr. Peters.
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
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.
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
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
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
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?
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 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
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.
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
The Chair: So noted.
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
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
I will have a further question to ask later.
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.
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.
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.
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.
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
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,
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.
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
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
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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.
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,
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
We're only about a half-hour late. We're not doing
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
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
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
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
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
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.
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
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
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
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
The Chair: Thank you, Mr. MacLeod.
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
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
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.
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.
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.
“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”.
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.
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
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
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
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
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
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.
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
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
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
Did you say you're the minister's parliamentary
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
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
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
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.
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
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
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.
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.
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
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,
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
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
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
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.
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
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
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.
to welcome the two members to this committee. They're both
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.
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
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
The Supreme Court was very clear in its
original decision and didn't change it in its
clarification. In there they say:
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.
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
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
The Chair: But that's not what the Supreme Court
is saying, so how do you deal with that one? Anyway, I
Mr. Hector MacLeod: I'm not a legal mind, so I
The Chair: But if you have an answer, we'd like to
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
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
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
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
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
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
Thank you very much.
The Chair: Thank you, Craig.
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.
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
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. 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.
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?
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
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
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.
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
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
Mr. Joe McGuire: Okay. Thank you.
The Chair: Thanks, Joe.
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
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
and we're going to keep going and going and going with
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
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.
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
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,
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
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
Thank you, Craig, for your presentation.
adjourn till one o'clock.