STANDING COMMITTEE ON
FISHERIES AND OCEANS
COMITÉ PERMANENT DES
PÊCHES ET DES OCÉANS
[Recorded by Electronic Apparatus]
Thursday, November 25, 1999
The Chair (Mr. Wayne Easter (Malpeque, Lib.)): I
call the meeting to order.
As is well known, but for the record, we are studying
the implications of the September 17, 1999, Supreme
Court decision R. v. Marshall on the management
of fisheries in the Atlantic region.
I might point out that the first witness, the Eastern
Fishermen's Federation, has cancelled due to a storm.
They are from Grand Manan, so I assume it's due to windy
weather on the water more than likely. Our third
witness, the New Brunswick Aboriginal Peoples Council,
is here and they will begin the morning session.
Welcome, Betty Ann LaVallée and Philip Fraser. The
floor is yours.
Ms. Betty Ann LaVallée (President, New
Brunswick Aboriginal Peoples Council): Good morning,
gentlemen. On behalf of all the members in the
constituency and the board of directors and executive
of the New Brunswick Aboriginal Peoples Council, I would
like to take this opportunity to welcome all the
members and the staff of the Standing Committee on
Fisheries and Oceans to Moncton and New Brunswick and
to traditional unceded Mi'kmaq land.
I would like to open up by reading a paragraph from a
book our organization published back in the early
1980s that started the comprehensive land claims in New
His Excellency Peregrine Thomas Hobson Esquire
Captain General and Governor in Chief in and over His
Majesty's Province of Nova Scotia or Acadie
Vice-Admiral of the
same & Colonel of one of His Majesty's Regiments of
Foot, and His Majesty's Council on behalf of His
Majesty, and Major Jean Baptiste Cope Chief Sachem of the
Tribe of Mick Mack Indians, inhabiting the Eastern Coast
of the said Province, and Andrew Hadley Martin,
Gabriel Martin and Francis Jeremiah members and
Delegates of the said Tribe, for themselves and their
said Tribe their heirs and the heirs of their heirs
forever. Begun made and concluded in the manner form
& Tenor following, viz.
And that's where they go into the treaty in articles
of peace and friendship renewed 1752.
Gentlemen, Major Jean Baptiste Cope, chief
sachem of this tribe of Mi'kmaq, was my great, great,
great grandfather. I am a registered Indian who lives
off reserve. I am a natural heir and descendant,
contrary to some people's modern manifestation of who
the traditional tribes are today.
Our organization was established back in 1972 to
address the needs of the off-reserve non-status Indians
at the time. Those were people like myself, my father,
and my grandfather, who were put off the reserve for
the simple fact that we all joined the military. We
lived up to our treaty obligations and said we would
serve the crown and protect this country from forces
that would try to overrun us or destroy us. My
family kept up its end of the treaty. My son is now
the fourth generation of continuous military service.
He is serving in Petawawa with the Canadian Airborne,
throwing himself out of perfectly good aircraft—well,
maybe not so perfectly good any more, but throwing
himself out of aircraft. My family has lived up to its
For the Minister of Fisheries and Oceans to stand up
and publicly deny that I am entitled, as a beneficiary,
or a natural heir and descendant to a signatory of the
treaty, to access my God-given right or my blood
right is total foolishness.
NBAPC was established to address the political,
economic, and social and cultural needs of the
off-reserve aboriginal people. Even though we were
forced off the reserves, and some of us choose not to
live on the reserves, we choose to live on our
traditional land. We did not buy into the Indian Act
and it was at great cost to ourselves. Because we
stood our ground and we stayed in our natural and
traditional areas and continued with our traditional
ways of life, we were stripped of the right to be
called Indians under the laws of Canada. We were
treated as second-class citizens. We were denied the
vote in this province until 1966. We were denied the
right to be called people.
The 1985 changes to the Indian Act brought changes to
NBAPC and expanded its membership to include
off-reserve status Indians. That is what I am; I am an
off-reserve status Indian. However, under current
federal legislation my son is still not entitled to be
registered under the Indian Act. Even though my
brother's children would be, my son is not.
The Corbière decision
was very clear in May, when it was brought
down, that those of us who reside off reserve,
especially the women and the children among us, are doubly
discriminated against. We are denied what is
rightfully ours. The chiefs cannot, on our behalf,
speak or enter into any agreements or make any deals
until that situation is resolved, until we have taken
our rightful place.
For people who are not real aboriginals, people in my
organization, NBAPC, have played key roles. We
had a place at the constitutional caucus of the 1980s
and we also held a seat at the Charlottetown Accord.
My organization was part and parcel of having Métis,
Indians, and Inuit entrenched in section 35 of the
Constitution. It's not bad for non-aboriginals.
Since that time, NBAPC has offered a variety
of programs and services to off-reserve people,
including housing, human resource development,
fisheries, summer student employment, and youth
employment strategy programs, to name but a few.
More importantly, as I said previously, we are
partners and beneficiaries to the comprehensive land
claim that is currently ongoing in the province of New
In the clarification of the
Supreme Court in regard to Donald Marshall,
November 17, 1999, the court substantiated our position
that we are the beneficiaries of our own treaties.
Off-reserve Mi'kmaq, Maliseet, and Passamaquoddy treaty descendants
still live in their traditional areas, unlike displaced
areas called reserves, which are not a modern reality of
our tribe or traditional territories. This is affirmed
by section 17 of the clarification, and further supported by
the Corbière decision of May 1999.
We have our own management regime. It's called
TIMBER. We as a community of interests, and as a
community of off-reserve Mi'kmaq, Maliseet, and
Passamaquoddy descendants, we are exercising our treaty
rights within our traditional territories. The
establishment of a management authority is in keeping
with the Supreme Court of Canada's decision.
We have not been opposed to negotiations, as the
courts have consistently stated in their decisions.
However, we cannot allow governments to abrogate or
derogate from the fiduciary responsibility to all
aboriginal people, including our people, who should be
first priority, as we are the ones living in our
Minister Dhaliwal, Minister Nault, Minister Goodale,
and Mr. MacAulay, and by extension, the federal and
provincial governments, are all shirking their fiduciary
responsibily for our people. By denying our people their treaty and
constitutionally protected rights, as affirmed by the
Supreme Court of Canada, nation-building will never be
realized. There must be a reconstitution of our
original nations. This is crucial, not only for the
Mi'kmaq and Maliseet people, but for Canadians as well.
Only then will we be able to deal with long-term
solutions to our problems and issues and address real
and long-term relationships with Canadians.
Without our nations being reconstituted, the poverty
and second-class citizenship that aboriginal people face in
Canada will continue. More specifically, off-reserve
Mi'kmaq and Maliseet treaty descendants will continue
to be treated as second-class and third-class citizens within
the aboriginal world by Indian Act chiefs, councils,
Various general human rights
reports over the past 12 to 15 years called upon
government to stop treating off-reserve aboriginal
people like a hot potato. If the governments don't
start treating the issues faced by off-reserve Indian
people, they will become a permanent underclass from
which they will never recover. Is that the legacy you
want to leave for your future generations to deal with?
That is not a legacy I want to leave for my
future generations to deal with.
The Chair: Thank you.
Who wants to start? Mr.
Mr. Yvan Bernier (Bonaventure—Îles-de-la-Madeleine—Pabok,
BQ): First, I have a very simple question, Mr. Chairman. I had
problems with the earphones at the beginning of the meeting. I
missed the first part of the debate and I would have needed it to
understand the rest.
At this point, I am totally lost. We're talking about
Aboriginals on reserves. We're talking about Aboriginals
off-reserve. We're also talking about non-status Aboriginals. I
think that's what the lady was talking about while I was fighting
with my earphones. I'd like to know who these non-status
Aboriginals are. Are these people who descend from Aboriginals and
whose status is not recognized either by the band or by the
When you say you're a descendent of an Aboriginal, do you know
to what nation or band you belong? I'd like you to give me a brief
explanation so I can follow the rest of the debate. I'm trying to
find out what's going on here. Mr. Marshall, of Marshall decision
fame, was a status Aboriginal but off-reserve. Could you explain
that to me and what non-status means?
Ms. Betty Ann LaVallée: You're quite correct. Mr.
Marshall is a status Indian. He's registered under
current federation, the law under the Indian Act. But
he did not reside on reserve.
Mr. Marshall is like me. He resides off reserve.
This was a case against an individual like me who lives
off reserve and who was charged for fishing eel and was
found not guilty. So if you go with Mr. Dhaliwal's
definition of the aboriginal peoples who are entitled
to benefit from the treaty or the decision, then that
excludes Mr. Marshall, because Mr. Marshall lives off
It was not the band and the reserves that were in the
courts. It was an individual Mi'kmaq man who lived off
reserve. I live off reserve. Does that mean then Mr.
Marshall is guilty? You can't have it both ways.
Mr. Yvan Bernier: I'm getting a better grasp of it. In the
Gaspé, where we'll be winding up our trip, there are three Mi'kmak
bands and two of them are on the reserve and one of them, the Gaspé
one, has no specific territory. When I walk around there, I don't
know where they are, they're all friends but I didn't know they
What I still don't understand is what defines non-status
Aboriginals. That probably means that they are off-reserve, but why
do we say that they're non-status? I don't understand that. So we
have three categories of Aboriginals we have to take into account.
How do non-status become status? And how are you going to deal with
them to set aside part of the resource? Maybe it's complicated on
the federal government's side, but it's complicated on yours too
and I'm trying to understand.
Ms. Betty Ann LaVallée: Well, for the simple fact
that he probably cannot get status, because he would
not meet the criteria as laid out in the Indian Act.
I'm a registered Indian, but my son is not entitled to
be registered under the current law. I'm classified as
a section 6(2) Indian. Basically, how they rate us is like
cattle. My grandfather was grade A, my father was
grade B, I'm grade C, and my son is not fit to be sold.
That's the only way I can put it. We are rated. They
judge us like grades of beef.
In any other society in Canada.... Say you were
married to an anglophone wife and you had children.
What if I said to you, “Your children aren't
francophones; they're English”? They're your
children. How were they raised? Did you raise your
children in the French language? Do you consider them
francophones? Thank you.
It's the same with Jewish people and the same with
Irish people. We are still the only classification of
citizenship in this country that is told who we can be
and who we cannot be and are legislated by law. I have
real difficulty, as an Indian woman of the Mi'kmaq
tribe, with someone telling me the son I bore and went
through 18 hours of labour with is not an Indian
person. I'd like to see them do it to anybody else.
The Chair: Mr. Bernier.
Mr. Yvan Bernier: I find those classifications astonishing. As
clarifications go, that will be enough for this morning. However,
Mr. Chairman, when we write our report, I'd like us to have the
classification available as well as how it's established unless we
have time to have some people from Indian Affairs come before us.
Anyway, I'd like some clarification on all that.
The Chair: Yvan, I think we could get someone from
the Library of Parliament to provide some documentation
on that. We will request that. We may have to ask
people such as Ms. LaVallée for clarification on it at
some point in time, but we'll ask that it be done.
Do you have any further questions?
Mr. Yvan Bernier: It's okay for now.
The Chair: Mr. Cummins.
Mr. John Cummins (Delta—South Richmond, Ref.):
Thank you very much, Mr. Chairman.
I'd like to thank Ms. LaVallée for the presentation
Further to the question of status and non-status, in
your interpretation of things, is it possible that a
non-status native living on the reserve would be
covered then by the Marshall decision?
Ms. Betty Ann LaVallée: No, they wouldn't.
Mr. John Cummins: So what the government is
saying is it's strictly status Indians residing on a
Ms. Betty Ann LaVallée: Yes, and the funny part of
it is you have status Indians residing on reserves who
do not have one ounce of Indian blood. They are women
like my mother, who through marriage would have gained
status. You have status Indians on reserves who are
the children of these white women, and if the
aboriginal men they married happened to adopt these
children, they would be entitled to go out and harvest.
Whereas you have people like me and my children and
Philip's children, who actually have Indian blood, are
of Indian ancestry, but the government, DFO, is saying
we are not entitled. So it's sort of contradictory or
Mr. John Cummins: How is it that some people lost
status? Was it simply at one point moving off the
Ms. Betty Ann LaVallée: No. In my family, what
happened was my grandfather was brought up in
the Shubenacadie residential school. As soon as he
was able to escape that situation, he went to Saint
John, which was one of the traditional areas of the
Mi'kmaq people, and he stayed there. Then when the war
came along, he joined the military.
Back then, if you were deemed to be educated, if you
were an aboriginal person who had graduated high
school, joined the military, and become a member of a
profession, whether it be teacher or whatever, you were
deemed not to be any longer savage, and therefore you
could no longer be called an Indian and you could no
longer live on reserve.
If you were a woman and you married a non-aboriginal
man, you were no longer deemed to be aboriginal, and
therefore you were thrown off the reserve; you weren't
allowed to be there any more.
Mr. Philip Fraser (Coordinator, New Brunswick
Aboriginal Peoples Council): You could also pick a
reference at any point in history and see what the
definitions in the Indian Act were at that particular
point in time. Since 1869 the Indian Act has been
constantly under change, and the definitions have
constantly changed as well. So it's not even based on
a particular race. It's just something picked out of
midair. Tomorrow, Parliament can change the Indian Act
and the definition again.
Ms. Betty Ann LaVallée: That's right. Tomorrow
the Minister of Indian Affairs could walk into this
room and say, “Okay, for the purpose of the Indian
Act, everybody sitting around this table is now an
Indian.” That's reality.
Mr. John Cummins: It's part of a bigger question
that may be straying from the Marshall business, but
perhaps the chairman will allow me to pursue the
The Chair: Go ahead.
Mr. John Cummins: It seems to me one of the
problems with the treaty process under way in my own
province of British Columbia now is it fails to
recognize the fact that many reserves are situated in
areas where there's little or no economic activity or
opportunity for the residents. By trying to embellish,
if you will—and maybe that's not a very good
word—reserve living, in fact what you're doing is
encouraging people to stay on the reserve and stay
A large number, perhaps the majority, of natives now
are leaving the reserves and seeking economic
opportunities elsewhere, but the government seems to be
ignoring that particular issue. The help is not there
to assist them in integration and so on.
It almost seems as if this Marshall decision, or the
interpretation of it, by restricting it to status
Indians living on reserve, is in fact doing the same
It is saying if you have gone to where the jobs
are—and you may have to move to where the job is if you buy
a licence from an area where the government purchases
licences as a buyback—and that is not an area where a
status Indian resides, and that Indian says if I want
to utilize that licence I should be living over here
because it's more convenient, the government is almost
you can't do that; you have to stay on the reserve
because this is where we want you. I don't think
that is the intent of the government, but that is the
impact, the reality of the decision.
Ms. Betty Ann LaVallée: That's right. Every other
Canadian citizen in Canada has the right to move freely
throughout Canada and still have access to social
programs. It doesn't matter whether you move from New
Brunswick to Ontario to British Columbia, you still, as
a citizen, have the right to draw unemployment
insurance, you still have the right to draw social
services, if required, and you still have the right to
medicare services, if required. However, as an
aboriginal person, if I don't live on reserve, then I
lose the right to access programs and benefits that the
chief and council receive on my behalf. I lose the
right to benefit.
A prime example was when I left the military. I had a
big pension. I ended up having to take back my pension
because I didn't quite have 20 years.
I basically got told by the department of revenue that
if I had gone back to the reserve, left my husband,
they wouldn't have touched my pension. But because I
chose not to, I chose to stay with my family, to seek
opportunities and to do the job I am doing today, I
lost over two-thirds of my pension in taxes.
The Chair: If I might ask, where did it go?
Ms. Betty Ann LaVallée: Back to the federal government.
Mr. Philip Fraser: The other thing is that
your own Human Rights Commission, for the last 10 or 12
years, has tried to address the issue of off-reserve
Indians. The last comment that Betty Ann made, that
if this government does not start dealing with the
off-reserve people soon, they will soon become a permanent
underclass—those are Max Yalden's, your human rights
commissioner's, own words in his report of about
1989-1990. If you look at the reports since then, they
have been telling government to stop burying their
heads in the sand and start dealing with these issues.
You are right. The government is ignoring the fact
that, particularly in western Canada, large numbers are
leaving the reserve. Here there is still somewhat of
an affinity with the reserve, but the numbers are still
the same. They are gravitating toward urban areas.
To say that your rights are limited, that you have
rights provided you live here, but once you cross that
line and live over here, you have no rights—the only
other system that had that sort of thing in place was
South Africa, and it was shot down over there. That is
the difference in what we are dealing with here.
How can our rights be any different? If the
reserve boundary is here, and we live here, it ceases
to exist? Most of the access to resources is outside
the reserve boundaries. The game does not know the
boundaries, nor do any other species involved.
Mr. John Cummins: And that's not where the
jobs are. Many of these
reserves simply are in areas where there is very little
or no economic activity. You have to leave if you want
Ms. Betty Ann LaVallée: How can they? They have no
Mr. John Cummins: Yes, that's right. That is the
issue that's being denied in this decision, and that
is the issue that's being denied in the treaty process
in western Canada.
Mr. Philip Fraser: Even with the great lengths the
Supreme Court took to clarify the Marshall ruling,
nowhere did it substantiate the position of chiefs,
and nowhere did it substantiate the positions of the
direct-line ministers on this modern
manifestation. It still talks about the peoples.
Peoples are the nation, not the municipal structures
they would like you to believe are nations,
because they are not. The nation is all of the Mi'kmaq
peoples, all of the Maliseet peoples, all of the
Passamaquoddy peoples, who are both registered and
non-registered, living on and off reserve. Those are
The Chair: If I could interject for a minute,
Philip, Bernd Christmas, when he was before the
committee on October 28—and the question was from
Stoffer, actually, on whether the Marshall decision
applied to non-status aboriginal people—gave this
answer, and I would like your comments on this, either
Betty Ann or Philip.
This is what Bernd Christmas said
on the record:
The view of the chiefs in Nova Scotia
is that it
—meaning the Marshall decision—
apply to what they call non-status natives. However,
the chiefs feel it is up to the Mi'kmaq people to
establish who is the beneficiary of that treaty
Then he goes on to
say they will undertake to do that task. What's
your view on that?
Ms. Betty Ann LaVallée: Mr. Christmas is not a
representative, number one. He is a paid spokesperson.
The chiefs have always maintained that. That is why we
have the Corbière decision. They have always
maintained they are the legal ruling parties for
all aboriginal peoples and Corbière has clarified that
for us. Corbière has clearly stated that the chiefs
can only govern those within the walls of the reserve
system and the people who live in that system. They
cannot speak on my behalf, or on Phil's behalf,
until they deal with the voting issue, and that's not
going to be dealt with until next November. So they
cannot sign agreements or anything on our behalf, or
negotiate on our behalf. We have to be at the table.
As for the nation deciding who their people are, I
totally agree. The nation will do it, not the chiefs.
Mr. Philip Fraser: The other thing, too, is that
people do not realize that the chiefs have been funded
for the last number of years for treaty entitlement, and
if they have made their decision, then why will they be
looked at with large blocks of money to be funded again
further, to discuss treaty entitlement?
If it is a case of the Mi'kmaq people making the
decision, then let's have a vote so the Mi'kmaq
people do make the decision, not a select few. That's
the problem we're dealing with.
The Chair: Mr. Steckle.
Mr. Paul Steckle (Huron—Bruce, Lib.): Mr. Chair,
I would like to ask a
I found this very interesting,
because even though I have no traditional native groups
within my particular riding boundaries in Ontario, I
have groups right on the edge of my riding.
Those decisions that are made from time to time impact
on what goes on, particularly in the freshwater fishery,
within my riding. So I have a basic knowledge.
I want to extend the question a little further. We talked
in terms of genealogy this morning. You also spoke
early in your presentation about the rightful place
of the native peoples. Would you perhaps expand a
little on that, what you meant by that? I have
questions regarding that as we go along.
Ms. Betty Ann LaVallée: Do you mean the rightful
place of native people within Canada?
Mr. Paul Steckle: You spoke about the rightful
place—within Canada, I suppose, within those
parameters, but perhaps more specifically within a provincial
context, or within a community context.
Given there are those who are off reserve, there
are non-status, there are status native people, when
and how do we continue this discussion? Will this
discussion go on for another
two hundred years? I am trying to be kind when I approach this
Ms Betty Ann LaVallée: There is no way to be kind
on an issue like this, because it is pure unadulterated
I am a third-class citizen within my own country, which
I find totally wrong. The only way to deal with this
is that the Indian Act must be changed. The Indian Act
has to be changed so that it's the nation that decides
who their citizenship is, and in order to do that you have
to reconstitute the nation. There has to be a place at
the table for people like myself, my son, and my
grandchildren yet unborn. They will also be my
natural heirs and descendants.
I have an obligation to my nation. I am the seventh
generation. When these treaties were signed they were
designed to protect the next seven generations. It is
now my moral obligation to my people to protect the
next seven generations. That is why I find it ironic
that I went from the field of military all of a
sudden to being a political leader. It was something I
never dreamt of, but obviously I believe in fate. I was
put here for a reason, and my reason—the only thing
I can fathom—is that I was put here to protect my son
and my grandchildren and those who will come.
The Department of Indian Affairs has to start dealing
with us. It can no longer ignore us. Now they have
us under the minister responsible for interlocutor
and off-reserve Indians, who has no—
Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern
Shore, NDP): Mr. Goodale.
Ms. Betty Ann LaVallée: Mr. Goodale, that's right.
He has no moneys and no budget. He is supposed to be a
lobbyist. But Mr. Goodale is also the Minister of
Natural Resources and the Minister responsible for the
Canadian Wheat Board. Does he have the time and the
dollars in the budget to sit down and work
with us on this? I
don't think so.
Mr. Paul Steckle: Which groups of native people,
those on reserve or those off reserve, are better off
financially and in terms of their ability to address
their rightful places in this nation?
Ms. Betty Ann LaVallée: Neither.
Mr. Paul Steckle: Why do some choose then to go
Ms. Betty Ann LaVallée: Some choose to leave the
reserves for the simple fact of the economic and social
conditions. If you pick up a newspaper in New
Brunswick, you will see there have been a lot of
suicides, mostly of youth. That's because of the drug
problem. There's no hope there. There's no economic
basis for them to live.
That's why there was such an uproar here in New
Brunswick when the TIMBER decision came down on
logging. For the first time in centuries, aboriginal
peoples didn't have to wait for handouts. We could go
out and harvest a resource. We could actually walk
into a store and buy that toy for our child or that
pair of sneakers all the other children in the school
system were wearing. We were independent.
The episodes of violence, spousal abuse, drug abuse
and alcohol abuse significantly went down.
Mr. Paul Steckle: Are you saying the ability to
integrate into the broader society has benefited the
Ms. Betty Ann LaVallée: I'm saying it is for
people like myself, but it has cost me.
Mr. Paul Steckle: What is that cost? You're
talking about nationhood, and perhaps I'm not
understanding what you mean by nationhood. We are here
as a Canadian government representing—
Ms. Betty Ann LaVallée: A nation is the collective
of all the people. That means the Maliseet Nation
is a collection of all the Maliseet peoples, regardless
of where they reside—not the reserves.
Mr. Paul Steckle: Is that not true of all
Canadians—we are Canadians, regardless of where we
reside or where we've come from?
Ms. Betty Ann LaVallée: That's right.
Mr. Paul Steckle: When a non-native person marries
a native person, obviously there's a love for one
another. It's not as though we despise each other. We
find commonality in that area. Why shouldn't we find
commonality in a lot of other areas?
I'm looking from the outside at what has happened to
people on reserves. We've kept those people there.
We've put a wall around them and thrown them crumbs.
That has not been good for those people.
Ms. Betty Ann LaVallée: That's right.
Mr. Paul Steckle: I'd like to find a better way
of—for lack of a better word—integration.
Ms. Betty Ann LaVallée: But it hasn't been good
for people like me either. Because of the simple fact
that I chose to honour the treaty my
great, great, great grandfather, Major Jean-Baptiste Cope,
signed, I lost the right to be called an Indian.
Because I married a francophone, I lost the right to be
called an Indian. My son also lost the right to be
called an Indian. Is that fair?
Mr. Paul Steckle: Well, I don't know. In your
eyes, it's obviously not. But all of us bring to this
table a heritage.
Ms. Betty Ann LaVallée: I also live in a province
right now that nobody has shown me a bill of sale for.
This is still my land. This is unceded land. It was
never bought; we've never been compensated. We were
herded onto reserves. It wasn't so we would survive;
that wasn't what those reserves were designed for.
Those reserves were designed to kill us. That was the
whole idea, if you go back and look at the historical
surroundings of reserves. They were designed to kill
and assimilate us or integrate us. At what cost has
that happened to my people?
Mr. Paul Steckle: Do you not agree, though, that
we need to move forward in some way? We can't go back
Ms. Betty Ann LaVallée: You're right, we can't
undo. We have to go forward and find accommodation for
people like myself, so I will no longer have to go
around hanging my head in shame and fighting against my
own brothers and sisters on reserve for the right to be
called aboriginal, or the right to benefit from
something that rightfully belongs to me.
Mr. Paul Steckle: Is the Nisga'a Final Agreement
the direction we ought to be
going in with native peoples?
Ms. Betty Ann LaVallée: If the Nisga'a people have
decided that is what is best for the Nisga'a people, I
have no problem with it, as long as all the Nisga'a
people who are beneficiaries of the descendants of the
treaties that might have been negotiated there are part
and parcel of the decision-making.
I'm saying I have a right, as an aboriginal person, to
make a choice for myself. Nobody else has the right to
determine who I am, how I'm going to live, or what I
should be or not be.
You have the freedom to choose where you live and
still have your basic human rights respected. As an
aboriginal woman of the Mi'kmaq tribe and nation, I
have a right to choose what governance system best
represents my situation. I have a right to choose
where I determine to live, under what rules I want to
live, and what rules I want to access or exercise my
aboriginal and treaty rights that were
guaranteed in section 35 of the Constitution of Canada.
The Chair: Mr. Stoffer. I would like to try to
pull this back more directly to the Marshall decision,
if that's possible.
Mr. Peter Stoffer: As you know, I've asked the
status question ad nauseam, and I don't have to do that
now. I think we've had clarification on where Betty
Ann and Philip come from.
I want to change to a different tack, in terms of the
resources. We've heard evidence from some people
indicating that aboriginal people didn't access certain
resources in certain periods of time. I couldn't help
but notice you had that book, so I'm going to ask you
to flip through that little book.
I know it's a set-up question, but I've had the
indication that when the Europeans came here, the
aboriginal people were accessing resources offshore,
maybe not 200 miles offshore, but I don't think there
was a certain mileage. I think they just followed
wherever the fish went—tuna, swordfish—or whales, and
brought them back.
We've heard evidence, especially from the corporate
sector, that they would prefer the Marshall
decision stay within the three-mile limit, and anything
past that would not apply—so Philip, get at it.
Mr. Philip Fraser: This is an interesting book—
Mr. Peter Stoffer: I didn't say that word.
Mr. Philip Fraser: These are written by non-aboriginal
scholars and writers from various places. I'm going
to use their arguments, and if people want to read it, the
name of the book is How Deep is the Ocean. The
first chapter in particular makes a lot of references
to aboriginal peoples in and around the Maritimes, from
Newfoundland all the way down through Cape Breton,
present-day New Brunswick, and so forth.
There is a particular site that goes back several
thousand years, where it shows our people harvesting,
using various shellfish, based on the evidence they
have found. There is evidence at one point that our
people harvested lobster 300 to 500 years ago. So we
have a long history.
There's also evidence of our people being out on the
Grand Banks fishing. European fleets made depictions
of our people on the Grand Banks fishing as well.
We have a history of use of the marine resources,
whether it be in-shore, mid-shore, or in the deeper
waters—and it didn't extend. That's why the boats of
the Mi'kmaq people were made for ocean-going travel—to
sustain the waters that would have to be met throughout
different periods of history.
A gentleman told me he was in Egypt at one point, and
they had found an old rotted canoe on the shores. It's
in a museum there somewhere. He just happened to walk
into this museum and saw the canoe in a glass-encased
display. When he read about it, he was surprised. It
was a Mi'kmaq canoe. We were the only ones with high
gunwales on our canoes.
How the canoe got there is a matter of speculation,
but I suspect our people were no different from
Europeans. We explored. If you look at the land mass
connections to Newfoundland from Cape Breton, there is
history of our people travelling overnight to
Newfoundland, using the southern shore of Newfoundland.
If you stay along those waters, you are not far from
the southern part of Greenland and over to the warmer
waters of Europe.
There is a history of our people travelling beyond the
riverbanks and shores in our neck of woods, in our
traditional territories. So there's a lot of evidence
there. I would suggest people may want to look at
that. For those who argue we didn't have
resources, we had traditional names for those
resources, as well.
Mr. Charlie Power (St. John's West, PC): Obviously
there are a large number of questions Betty Ann has
brought up. I want you to explain briefly, so I can
understand this a little better, how your children are
treated differently from your brother's children. I
find it absurd that because you happen to be female in
this country you are prejudiced against, Indian Act or
not. How does that happen?
Ms. Betty Ann LaVallée: It causes family
divisions, believe me. My brother's children can get
funding to play hockey and things like that, but I
can't afford to put my own child—
Mr. Charlie Power: Is that because he's on
reserve and you're not?
Ms. Betty Ann LaVallée: No. He lives off reserve.
Mr. Charlie Power: So both of you live off
reserve and came from the same parents, but your children
are treated differently from his.
Ms. Betty Ann LaVallée: That's right. His children are
called aboriginal and are defined under the Indian Act
as being aboriginal. My son's not entitled to.... My
brother's also married to a white woman.
Mr. Charlie Power: Is that the fault of the
Mi'kmaq culture and being dominated by males and chiefs
in the old days?
Mr. Philip Fraser: The Mi'kmaq culture was never
dominated by males.
Ms. Betty Ann LaVallée: That's right. Mi'kmaq
culture was matrilinear. The women were the leaders in
Mr. Philip Fraser: The clan mothers made the
decisions on who the leaders would be, and only they
decided when the leaders had to go.
Ms. Betty Ann LaVallée: That's right. We had our
own traditions when we had people of non-aboriginal
persuasion—the earlier francophones and anglophones
from France and England. A lot of Europeans came to
this country and took aboriginal wives in order access
the fur trade, the resources, for the British and the
French crowns. They became part and parcel of the
aboriginal community. They walked the walk and talked
the talk of the aboriginal community.
Mr. Philip Fraser: The Indian Act structures of
today are not the Mi'kmaq Nation's systems of
Mr. Charlie Power: Maybe we can chat about this
afterwards, so I can get an understanding of how it
Ms. Betty Ann LaVallée: There were only two
patrilineal tribes in North America, or Turtle Island,
and they were the Apache and I believe the Sioux.
Mr. Charlie Power: Let's get back to the Marshall
thing, first of all.
One of the great problems we as the fisheries
committee have with this—and our presentations
yesterday in Nova Scotia brought it out—is if the
Marshall decision opens up the resources, with all of the
fisheries resources we are talking about, whether it be
lobster, crab, cod or whatever, there is only so much
of that resource there. Most of it is fully utilized
now, and most fishermen, certainly in Newfoundland,
would say there is not enough of the resource to
satisfy the number of people who are now trying to make
a living from that resource.
How many people do you represent, and how many people
do you think will want to get into the fishing
business? Where is the resource going to come from
to allow these people, if they're going to get into the
fishing business, to make a decent living for
Ms. Betty Ann LaVallée: We represent approximately
7,500 off reserve in New Brunswick. Is everybody going
to want to go out and fish lobster? No. It's dirty,
hard work. I earn a moderate living. I have no desire
to fish at this point; I don't need to fish.
We have a management plan drawn up, based on the
Marshall decision. It's called TIMBER and
outlines treaty entitlement benefits. We have four
guiding principles that Phil can elaborate on, since he
will be co-managing the whole thing. We have been
operating under regulations and guidelines, through our
aboriginal fishing strategy, for approximately seven
Mr. Charlie Power: Where does the resource come
from? If you have 7,500 people and 10% want to go
fishing, you're talking about 750 people who will now
want to fish lobster. Where does the extra resource
Mr. Philip Fraser: There's no quota at this point
on lobster. Nobody knows what the biomass of the
lobster is. If we look at some districts, there have
been continual high records of lobster being taken.
The fishermen say we don't need regulations, the
Mr. Charlie Power: But there's a limit to the
Mr. Philip Fraser: There's also the replacement tag
policy. Depending on which quarters of the fishery you
talk to, if you lose ten tags DFO has a policy of
replacing not just the tags that are lost
complete set all over again.
Whether you can get
groups to come to this table and admit it or not, there
are people within or outside the fishery who admit that
there are more traps in the water than what are given
There alone you talk about an excess of resource being
taken. There are ways of doing that. I've heard the
government talk about a buyout program. But the
question is, where have those licences been for the last
six, eight, or ten years that they have been buying licences?
The licences that were bought under the package
that was bought for us last year are subject to the
whims of DFO, of whether they want to enter a food
fishery or not.
Therefore, what is the ATP program really created
for? Is it a retirement package for fishermen, or is it
intended to get aboriginal people into the fishery?
This year, if DFO wants to create some issues and not
enter into an agreement, they don't issue the commercial
licences. What happens to that licence? I thought
that was bought to retire, to move over. The licence
does not move completely with it, because it is the
policy of DFO at this point in time.
We are subject to every season going around. We had
the same thing last year. We had a food fishery in
place; we were supposed to get a commercial licence for
area 23. Issues were created at the last minute to
prevent the issuance of a licence until a month into
the season. We lost out. We incurred costs because of
We also got onto the wharf this year, finally getting
a licence in area 25. We were subjected to harassment.
We were told to get off the wharf. We were told we
weren't wanted there. But we stuck it through. And
that's by the same groups who claim to have a
benevolent interest in aboriginal people getting into
the fishery. It doesn't matter what we want. The issue
is not finding accommodation.
There are some groups that just don't want
accommodation. We have always been prepared to
negotiate. We have always been prepared to cooperate
with groups. That's what we are looking at in relation
to the fishery—finding accommodation. But there has to
be a two-way street. It can't be one way.
The Chair: Thank you, Mr. Fraser.
For the committee's information, the management plan
that Betty Ann talked about is in the package. It's
there for your information.
Thank you, Ms. LaVallée and Mr. Fraser.
We have to move on to the next witness. Thank you
Betty Ann, I have one question. At the risk of
embarrassing myself, what does the CD that is after
your name and on the paper stand for?
Ms. Betty Ann LaVallée: Canadian Declaration.
The Chair: Thank you.
Mr. Bell, welcome, sir. I believe you have handed out
a paper. It is hard to hear in this room without the
earphones on, but could you highlight your paper as
briefly as possible, so that we have time for questions?
We have about a half hour.
Mr. David Bell (Individual Presentation):
Thank you, Mr. Chair, for the courtesy of inviting a
legal historian to appear before a fisheries committee.
I appreciate that the committee's interest is the
future, and I will direct my remarks as far as possible
to the future.
My theme is that opinion leaders such as yourself must
preach the gospel of comprehensive negotiation as the
only acceptable alternative to this continuing
striptease of litigation through the courts. I thank
the committee and its staff for coming here to provide
this constructive forum about the future.
My prepared presentation is brief. For a second time
in as many decades, the name Donald Marshall has entered
public consciousness. For a second time, Donald
Marshall's personal travails with the legal system have
become a sort of lens through which Maritimers are
forced to confront unhappy episodes from our past that
seem to have startling implications for the future.
It is troubling for the beneficiaries of aboriginal
dispossession to contemplate that injustice. But if
after Marshall we continue to ignore aboriginal
dispossession and aboriginal entitlement, we do so at
The very idea that treaties dating back to the 1760s
can suddenly transform access to resources in the 21st
century is a startling one. Nothing prepared the
public for the Marshall decision. Silence on the part
of opinion leaders allowed Maritimers to suppose that
issues of aboriginal entitlement were confined to
distant places like British Columbia, or would and
should just go away, as the crisis in the New Brunswick
woods triggered a couple of a years ago by the Peter
Paul case seemed to go away.
The first message of Marshall is that those days when
the dominant culture thought it could postpone
indefinitely discussing aboriginal entitlement are
The Supreme Court's Marshall decision is a fact. Those
puzzled by how what the treaty in question expresses as
a restriction could be transformed by the court into a
right should note that such a line of reasoning was
embraced to some degree by all seven judges of the
Supreme Court of Canada and also by the trial judge in
I offer the committee three observations arising from
my own general study of the 18th century maritime
treaties, which I am in the process of editing
Of course, everyone wants to know what happens next.
Where do we go from here? But as Marshall illustrates,
where we go in the future may be determined—to a
surprising extent, to a startling extent, to a
disconcerting extent—by what happened in the fairly
The 1761 treaty considered in Marshall is just one of
a number of 18th century ghosts that will now be
brought before the courts and tested for legal life.
My three observations are as follows. There is no
magic treaty. When people understand that I am
researching and drawing together these treaties,
essentially for the first time, they always ask whether
there will yet be discovered in some dusty archival
corner a treaty that deals comprehensively with the
issues before us today.
People always seem to hope that there will yet be
discovered a treaty in which Maritime Amerindians
really did sign away all of their rights. The answer
to that is clear. There is no magic treaty that will
make all of our present-day concerns go away. Had
there been a treaty by which Maritime Amerindians
signed away their rights, we would not have forgotten
it. We would not have lost it.
The second observation is that treaty litigation will
continue. Only two of a great number of Maritime
treaties have been litigated up to the Supreme Court of
Canada. While Marshall's ruling has probably rendered
unnecessary some litigation on those treaties, because
Marshall establishes a right to the harvests and the
chase, the great issue that does remain to be addressed
is whether Maritime Amerindians have a treaty-based
Such an inquiry will focus on the treaty of Boston,
1725, the famous Dummer's treaty, although
in the case of the Maliseet, there might also be an
argument based on promises made by government in the
1760s and 1770s. Note that this treaty-based land claim
will be distinct in foundation from the non-treaty
based claim to the soil that Maritime Amerindians are,
even as we speak, formulating under the legal doctrine
of aboriginal title.
Finally, such claims are plausible. By this I don't
mean that they will be successful, but they are
plausible. They will be argued with great vigour and
they may be successful. Until recently, maritime
treaty cases always failed. Following the lead of Nova
Scotia's Sylliboy decision in 1928, judges were
simply unable to take Indian treaties seriously.
However, since the landmark
1985 Supreme Court decision in Simon, maritime
treaties have come to be taken ever more seriously by
the courts, if not by the dominant culture.
What has changed is not the treaties, but
the courts. The present generation is
willing to discover a meaning in treaty clauses where
an earlier generation found no meaning. To ask what a
treaty means is really to ask what a court is likely to
say a treaty means, and the answer to that question
has changed greatly in our own lifetime.
The Supreme Court's Marshall decision of September 17,
1999, seemed to throw opinion-shapers into a panic. The
clarification of November 17 lowered temperatures and
offered temporary respite, but will any good use be
made of this calm before the next litigation earthquake
strikes? Ten years from now, will Maritimers still be
living from decision to decision against a backdrop of
crisis and disorder? Opinion-makers in the press,
politics, and the aboriginal community will have as much
responsibility as courts for determining the answer to
If control of natural resources in the Maritimes is to
be determined by the people of the 21st century and not
by ghosts from the 18th century, then the principal
actors must heed the earnest advice of Chief Justice
Lamer in Delgamuukw and indeed of Mr.
Justice Binnie in Marshall and come to the table
Provincial and federal governments must cease playing
jurisdictional hide and seek. Some of the jurisdiction
may be federal—fisheries, Indians, and land reserved
for Indians—but the turmoil is provincial. Maritime
provincial governments must be willing to join the
federal government at the negotiating table.
On matters of treaty and aboriginal entitlement, both
the two levels of government and the two maritime first
nations must set aside the accidental distinction
between status and non-status Indians, as we have
heard. As courts determine treaty and other
history-based aboriginal rights, one can be quite sure
that they will not confine those benefits to status
Amerindians only. All aboriginal parties must be
represented at the negotiating table, but aboriginals
must come to negotiations as unified nations.
Division into status and non-status, and then further
division of status Amerindians into many reserve
communities of varying sizes, may be an established
fact for some legal purposes, but when it comes to
negotiating the future, the two cultural groups must,
to use a phrase, reconstitute themselves as nations.
They must put themselves into a position to negotiate
as one reunified Mi'Kmaq Nation and one reunified
If governments and reconstituted first nations fail
to come to the table, then ten years hence we will still
be living from case to case, crisis to crisis. Only
when both levels of government and two reconstituted
first nations go to the negotiating table will we be in
a position to develop our resources with a view to the
needs of the 21st century, and not the concerns of 300
Thank you, Mr. Chair.
The Chair: Thank you.
I would turn to Mr. Provenzano first, but before I do,
can you do what you are asking to be done with the
Indian Act as it currently exists?
Mr. David Bell: Yes. I am not saying we should
get rid of the distinction between status and
non-status. Rather, what I am suggesting can be
done despite that distinction.
Mr. Carmen Provenzano (Sault Ste. Marie, Lib.):
Mr. Bell, it's an
interesting proposition, with three guidelines, the
third of which I think poses a problem in practical
terms. There is no doubt that it would be good to have
the provincial and federal governments at the table and
have representation from all of the aboriginal parties,
but if you set it as a precondition that
the parties must put themselves in a position to
speak as one united Mi'kmaq Nation and one united
Maliseet Nation, in practical terms, won't that
frustrate any action? If the governments were to adopt
that piece of advice, would that freeze this entire
situation in practical terms?
This committee has heard
from competing interests among these very nations, and
I'm going to suggest that, at the moment, if you
attempted to look for one voice with a mandate to
negotiate a final settlement, you would be wasting your
Having regard to that reality, what do you see as the
next practical real step that can be taken with respect
to any of these negotiations?
Mr. David Bell: My comments were the comments of
an interested observer, as opposed to the comments of
an expert on present-day aboriginal-government
relations. My comments, though they have a utopian
cast in some respects, were in another respect meant to
answer the very question you have asked.
Basically, we have two choices. We can accommodate
ourselves to the Marshall decision. We can put
ourselves in a position where there are no more riots
or the riots will be only small, local disorders, but
then we are only waiting for the next decision from the
court and the next round of disorder. Or the
opinion-makers, not just government but the press and
intellectuals in the aboriginal community and
academics, can, as it were, rethink these issues. I
was attempting, in a modest way, to rethink these
issues by saying, in effect, without using the magic
words, we need a new treaty.
Mr. Carmen Provenzano: Mr. Bell, you wouldn't
suggest that we rethink any issue without regard to
reality. With regard to the realities and the
practicalities of the situation faced right now, what's
the practical next step? If we adopt what on the face
of it sounds very nice, everything would come to a
standstill. So what is the practical next step that you
Mr. David Bell: I'm not an expert on the
practical next step. I was trying to address myself to
the question of where should we be ten years from now, and
how do we get there?
Where we should be ten years from now is taking control
of the situation. We shouldn't let the agenda be
determined by what happened 250 years ago, important
though that is. As a legal historian, I'm hardly going
to downplay the significance of that, but to move
forward, we have to find a way to pay due regard to the
rights of aboriginals. In a sense, the way I see that
is that we have to form, in a formal sense or at least
in an informal sense, a new treaty that deals
comprehensively in the round with aboriginal access to
resources and compensation to aboriginals for
The only way we're going to get a new treaty is if all
the actors come to the table, so I was trying to identify
who the actors are. As long as we have, for every
purpose, including negotiations, a distinction between
status and non-status, and the status Indians further
divided into 14 or 15 municipalities, each with its own
power structure, each with its own vested interest in
the present system, nothing will ever happen. Ten
years from now, we will be just where we are now.
The Chair: Thank you, Mr. Bell.
Mr. John Cummins: I appreciate your comments this
morning. There is more than a touch of reality
in what you say. If the issue is to be
resolved, certainly your suggestions will
be the route by which it's going to happen.
I am curious, off the top, about your comment that
Simon in 1985 was interpreted narrowly and Marshall
was interpreted in 1999 in a broader fashion. I wonder
if you would just comment on that and perhaps give us
your view of why one was a broad interpretation and one
was a narrow one.
Mr. David Bell: In 1985 in the Simon
decision the Supreme Court of Canada was faced with its
first maritime treaty case in the wake of section 35.
I am not sure what
the Supreme Court had in mind when it decided to hear
the case, but by the time it wrote its decision, what
it fairly plainly had in mind was articulating
the principles of treaty interpretation for the future,
while at the same time deciding as little as possible
on the case in front of it. It realized
it didn't have enough evidence in front of it.
The treaty interpretation has a once and for all character.
You'd be terribly embarrassed if five years
later the historians came up with a whole raft of new
documents that made your decision of five years
earlier seem absurd.
So on the one hand they were
concerned about giving guidance to other courts on the
principles of treaty interpretation. However, when it came
to the actual case in front of them, they were very
careful to say that all they were deciding was that a
reserve Indian found off a reserve with a hunting
rifle, intending to hunt on reserve, was within his treaty
rights to hunt on reserve. It was no big issue at all.
On the other hand, in 1999, with the Marshall
case, the Supreme Court of Canada had encountered
treaties in a number of contexts. There were a series
of cases on Treaty 8, which is one type of treaty.
There was a remarkable case on what the
Supreme Court declared to be a treaty in Quebec, the
Sioui case, which is a very different sort of
treaty. They seemed ready to deal with a broader
concern. They had an ideal case, in a way, because in
Marshall they had before them two large volumes of
crown documentation and 12 large volumes of defence
documentation. It seemed to be the right case.
By the breadth of their decision, they rendered
superfluous an awful lot of treaty arguments that might
have come before them in other treaties.
Mr. John Cummins: You talk about
coming to the table to talk. Certainly Chief
Justice Lamer said it was better to talk and negotiate
than litigate in Delgamuukw, and then he repeated that
comment in Marshall. All of that sounds fine. It
sounds fine to say that the treaty should be
interpreted broadly. But when the rubber hits the
road, when you step outside the courtroom, it seems
to me you can't negotiate. Whether or not you are talking
about land or resources, you can't reach a decision
without that decision affecting somebody else.
If you arrive at a decision through negotiation, you
can bet your bottom dollar that somebody will litigate.
That's just the way it is. That somebody may be a
non-aboriginal who feels that too much has been given
or an aboriginal who feels that in their instance they
were left out.
We have just had this Nisga'a treaty in British
Columbia. The Nisga'a from Kincolith say
that regardless of how big this land is, their traditional
territory is not included in the treaty,
and they're upset by it. Then other bands are saying
we have taken their territories.
Regardless of what good faith there is around the
table, outside that table somebody's going to be
impacted. It seems to me there is no end to the litigation
on this. How do you get around that?
Mr. David Bell: The greatest number of concerns of the
greatest number of people, including legal concerns,
would be addressed through a new treaty. I don't want
to get into a discussion of the Nisga'a treaty, because
I'm not able to discuss it, but of course the Nisga'a
treaty takes the form of legislation of the federal
government, legislation of the provincial government,
and assent of the nations in question.
I gather under the interpretation of the Supreme Court
of Canada the collectivity can give an assent that
binds individual members. So you can't have one
individual aboriginal saying “I don't agree with this
position on my treaty rights, so I'm going to go out and
A new legally enforceable treaty is the best
answer. It may seem utopian, but it is the best answer.
Mr. John Cummins: It seems we are
a nation of individuals. We have
a Charter of Rights and Freedoms. Our rights and
freedoms as individuals are protected, not our rights
as members of a group, whether it be as members of a
native band or as members of the Lions Club, for example.
We have individual rights.
It seems to me that is why there is a problem with the whole
notion of treaty-making. By its very nature, it denies
individual rights. That's why when I look at it I keep
saying we are going to have litigation here for
generations before this issue is solved.
We have the Charter of Rights, which is a reflection of
the western liberal tradition which comes out of the
English Bill of Rights resistance to the Stuarts
and the French and American bills of rights. You're
right that the emphasis is on the individual.
However, we have within our polity this little island
of traditional collective rights arising out of a
completely different cultural context. I think the
Supreme Court of Canada is going to create and evolve a
jurisprudence on collective rights as well.
The Chair: Mr. Bernier.
Mr. Yvan Bernier: First, I have a comment for our witness. But
before that I'd like to welcome him. My comment might be followed
by a question.
When I reread your document where I have underlined a few
sentences and when I listen to you I get the impression that the
fact you're a history teacher might help us clarify the problem we
have right now.
The first sentence that struck me is the one where you say
that nothing prepared the public for the Marshall decision or what
it revealed. If nothing had prepared the public, we might wonder
how we manage to keep alive the history of Canada or of everything
that surrounds us because those things were written down.
It's because of communications problems. In communications,
there are always all kinds of things going on at the same time. You
actually point this out somewhere in your document. We have a new
problem popping up every week and our attention wanders.
This time, it's true that we have to take the bull by the
horns and try to settle the problem. But when we talk about
settling the problem, does that mean that we have to rewrite a
treaty or shouldn't we just write down how the first treaty should
If I'm interpreting the 1982 Canadian Constitution properly,
despite the reservations I might have about it, the treaties are
inalienable. So it would be difficult to get all the interested
parties around the table to change anything. So what we should do
is to try to write down on paper, with people who are ready to
agree, those things that we can settle. You've also pointed out
yourself that there's no magical treaty. So we have to try to solve
the problems one at a time.
I wanted to mention another point. You say that the only way
to settle this matter would perhaps be for the Aboriginal peoples
to talk, to sit down at the same table and to get together to list
their demands. That might be a wish, but it will be up to them to
decide what to do and how to do it.
I would also like you to help us, in the historical area, by
telling us who signed this treaty. It must have been signed by the
different chiefs. I don't get the impression that the treaty was
signed, back then, only by one band of Mi'kmaks. Maybe there were
several who signed it or sent the message along to the others. So
then, trying to settle everything in one fell swoop, with one
single event, might perhaps lead to another hiccup.
History can clarify the situation as a whole. We always have
to look back at where we're coming from to see where we want to go.
As long as we haven't settled the problems of the past, we can't
settle what is waiting for us in the future. We might hope to
introduce things that, in our opinion, might settle the problem,
but if we don't take into account those wishes put forth in the
past by the first people who signed, it will be difficult.
So could you refresh our memories and tell me if those who
signed the first treaty all belonged to the same nation, whom they
represented and whether several bands signed on? Thank you.
Mr. David Bell: I hope nothing I have said
indicates that I have any desire to fail to respect the
18th century treaties. I live with the 18th century
treaties. I regard aboriginal dispossession as a
terrible fact that has to be looked into, and the 18th
century treaties must be respected.
The problem with leaving it at that is that the 18th
century treaties reflect the concerns of the 18th
century, and they are not comprehensive treaties, so they
don't deal with questions in the round. They just deal
with aspects of questions.
In a province like New Brunswick, which has at least
two aboriginal nations, we are apt to be in a position
where it's discovered that a treaty with one nation
gave it rights that the other nation didn't have. It
isn't an impossible situation to deal with, but it
is certainly awkward for the Mi'kmaqs to have rights
that the Maliseets don't have because
the Mi'kmaqs have a different treaty.
So while I wish to respect the 18th century treaties,
there are limitations to leaving the matter
there, especially since Marshall isn't going to be
the last decision. There are a great many other
treaties in the annex to my report. There must be forty
treaties there, two of which have been litigated to the
level of the Supreme Court.
My modest utopian point was that as an alternative
to this litigation striptease,
we might take a proactive stance and see
whether we couldn't enter into a new comprehensive
But certainly I firmly
believe in respecting the 18th century treaties.
On page 2 of my annex I list all of the treaties that
were signed in 1760 and 1761. You're quite right that
there wasn't just one treaty signed. There were at
least eleven, and possibly a twelfth, with various
Mi'kmaq, Maliseet, and Passamaquoddy bands.
Perhaps the final point I will make in response to
your remarks is that I agree with you. When I say that
the Amerindian nations, the two nations, must be
reconstituted so that someone speaks as the head of the
Mi'kmaq Nation or that someone can negotiate as the
head of the Maliseet Nation, I mean the movement has to
come from within the aboriginal community, of course.
It's not something we can impose on them.
The Chair: Thank you, Mr. Bell.
Mr. Peter Stoffer: Thank you for your presentation
this morning, Mr. Bell.
In my questioning of other legal opinions and
aboriginal chiefs, I have asked them a question quite
clearly: Does the Marshall decision apply to
non-status aboriginals, in your opinion? The answers
you get from the legal people are hesitant at best.
They don't really say no or yes, they kind of say
well...it's something they don't want to answer. Yet
the chiefs, without question, say it applies only to
I never asked the second question, but I am going to
ask it now. What if they're wrong? There's a reason
for why I ask that. Right now, you have a lot of
goodwill between aboriginal people and those of the
non-aboriginal community and the fishing communities.
They want to work together in order to prepare for the
winter and spring seasons when it comes to fishing
the lobsters, for example. We have heard
evidence of non-aboriginal people giving traps and gear
to aboriginal people. They're willing to train them.
They're willing to incorporate them and to develop some
kind of long-term strategy to integrate the aboriginal
community into the fishery so that everyone can work
side by side under the same arrangement in terms of
conservation and the law.
My fear is that if this is only done with the status
aboriginals, if they set up this plan and go forward
for a few years and everything is going along well,
and all of a sudden another Supreme Court decision
will say the decision also applies to non-status
aboriginals, we're then right back here at the table
I couldn't help but notice that a paper submitted by
the Conservation Council of New Brunswick
says something that goes along with what Mr. Provenzano
was saying this morning about the holistic method and
the utopian view. However, it may not be so utopian,
because in the Gladstone decision of 1996 it's quoted
here as saying:
[T]he interest of all Canadians and, more importantly,
the reconciliation of aboriginal societies with the
rest of Canadian society may well depend on their
That is, in terms of conservation.
You said the “two reconstituted
first nations go to the negotiating table”.
You're sort of saying the same thing Gladstone had
said. I'd like you to comment on that. It may not be
so utopian at all, in that it may be better to
negotiate instead of asking the litigation process to
Mr. David Bell: That is certainly
Going back to the first observation you made about
whether or not the Marshall decision applies to
non-status as well as status Indians, I believe
Marshall is silent on that question. However, I would
predict the decision will be applied to non-status and
status Indians indifferently. We have several
decisions in Canada that apply treaty benefits to
non-status and status individuals equally, including
decisions in New Brunswick, but also some in Ontario.
I am confident that's what the Supreme Court of Canada
will say if it's asked.
The Chair: Mr. Power, this is the last question.
Mr. Charlie Power: It may just be a brief
You're a legal historian. We—and members of the
opposition in particular—criticize members of this
Liberal government, which has been in place since 1993,
for forgoing its responsibility to govern this country
and for in many ways allowing the Supreme Court to make
decisions that politicians should be making, whether
it's dealing with child pornography in B.C. or whether
it's dealing with the Marshall case. Do you see that
as a modern trend? Is it just with this government, or
has that been the case with all governments in terms of
avoiding making the really tough decisions while
letting the Supreme Court do that for the people of
Mr. David Bell: In a way, in a nutshell, that
was the core of my presentation. I don't think
Parliament and the provincial legislatures should allow
the Supreme Court to shape resource exploitation in the
Atlantic provinces in the 21st century on a sort of
haphazard, case-by-case basis in its interpretation of
18th century treaties.
To the more specific part of your question, I'm afraid
you may be correct. Governments are increasingly
tempted to leave difficult issues to resolutions or
human rights legislation or charter rights litigation,
rather than leading.
Mr. Charlie Power: I just want to ask another
question, because we don't get many legal historians
There's also this modern trend for governments to be
revisionists in some of the things they do, whether
it's going back and correcting or changing history,
such as with Louis Riel. He was a traitor at one stage
of his life, unfortunately, and now he is a patron of
Manitoba and a Father of Confederation. How do you see
that happening when it comes to correcting treaties?
How do you see this revisionist business happening?
Mr. David Bell: That's a difficult question to
answer, but I think a culture should face up to its
past. As our culture has dispossessed the Amerindians
and herded them into reserves—perhaps it wasn't to
exterminate them, but to preserve them from
extermination, but we nevertheless herded them into
reserves—I don't think we should hesitate to admit
The Chair: Thank you, Mr. Power.
I had one question relating to what another professor
of history said. Dr. Stephen Patterson—I'm
sure you know each other—had this
to say before the committee—and I want to know your
point of view on this:
I found it particularly striking that the Cape
Breton chief, speaking for all of the others, said:
“our intentions were to yield ourselves up
to you without requiring any terms on our part.” In
other words, they made no demands and set no
conditions. In his lengthy speech, carefully
translated by someone who spoke the Mi'kmaq language,
he made not a single reference to trade. He concluded
thus: “As long as the Sun and the Moon
shall endure...so long will I be your friend and ally,
submitting myself to the Laws of your Government,
faithful and obedient to the Crown.”
What is your position on that statement as an
historian? Or do you recall it?
Mr. David Bell: It's difficult to give a short
answer to an historical question of that nature. The
passage you quoted could be set beside other passages
in which it's clear that the primary Amerindian concern
is trade. There's a great advantage in being in a
position to read all of these treaties
simultaneously—the ones that I've listed in my annex.
The great theme that emerges from a review of the
entire treaty relationship between the Government of
Nova Scotia and the Amerindians is trade. The Indians'
number one concern is trade.
I would set that against this highly rhetorical speech
that is attributed to the Mi'kmaq. It's not that I
doubt the accuracy, but Indians spoke in a certain
rhetoric when they negotiated, and government
minute-takers took minutes with a certain rhetoric. I don't
think you can take one isolated passage and say it
reflects the Amerindian view, because it's clear from a
review of all of these treaties that the number one
Indian concern was access to trade goods.
The Chair: Thank you for your opinions and your
presentation, Mr. Bell.
Mr. John Cummins: Mr. Chairman, I think we should
acknowledge that Professor Bell has freely given of his
time. He's not directly involved in this issue, but
has certainly contributed a great amount to our
discussion this morning. I certainly appreciate the
fact that he has taken this time.
An hon. member: Hear, hear!
The Chair: Thank you, John.
On behalf of us all, thank you, Mr. Bell.
From the Conservation Council of New Brunswick,
we have David Coon.
Mr. Peter Stoffer: [Inaudible—Editor].
The Chair: I read that document three years ago,
Peter. I hope you have.
There's no question that Peter swears by that blue
book. He mentions it every time he gets a chance.
It's Beyond Crisis in the Fisheries, and I will
admit that it is a good document.
Mr. Coon, I think you know the procedure. We want to
try to keep it down to half an hour. If you can
highlight your submission, we can then spend some time
Mr. David Coon (Policy Director,
Conservation Council of New Brunswick): Thank you, Mr.
Easter and honourable members.
We want to first say we
appreciate the opportunity to come before the standing
committee, and also the fact that you have taken the
time to come around to do these travelling hearings.
They are awfully important, and really one of the rare
opportunities when we get a chance to participate
directly in the democratic process within the
parliamentary system we have set out.
When the Marshall decision came down, I recall getting
it off the Internet fairly quickly. I knew the
Conservation Council would be getting calls from the
media, asking what the implications of this are from a
conservation perspective. I went through the decision
and it seemed fairly straightforward.
Aboriginal rights and treaty rights are entrenched in
the Canadian Constitution of 1982. Maybe that was a
surprise to some people, but not to us. We had some
familiarity with case law and Supreme Court judgments
around aboriginal rights and treaty rights, so it
seemed to us that the logical next step would be for
the crown, through the Minister of Fisheries and
Oceans, to sit down with the aboriginal leadership to
start talking about the sort of regulatory regime that
would be put in place.
I have never seen an issue that has been misportrayed
so frequently and so routinely in the media
provincially, regionally, and nationally, as some kind
of wide-open fishery to be conferred to aboriginal people.
The language constantly was “unregulated rights”,
“unfettered rights”, “fish at will”, and all those
sorts of things. From the judgment, that clearly
wasn't the case, and isn't the case, as the later
material coming out of the Supreme Court simply
reiterated what was said in the judgment. The court
went into some details around some of the other
decisions that I guess perhaps other people were not
familiar with, but the point of the treaty overall, in
the fisheries context, is to ensure that Mi'kmaq,
Maliseet, and Passamaquoddy have equitable access
to fisheries for the purpose of earning a moderate
living. It's fairly straightforward.
The question is how the current management system
accommodates those treaty rights. We know from
Marshall and previous Supreme Court decisions that they
laid out two types of limitations. One would be
regulatory limits around what would constitute a
high-risk equivalent to some kind of a moderate living.
The other would be those regulatory limits that
could be justified for compelling and substantial
public objectives, to be established in consultation
with affected aboriginal communities.
It was certainly our expectation, as the
major conservation advocacy organization in New
Brunswick, that we would soon see the minister and the
department sitting down with aboriginal communities to
talk about these things.
What kinds of public objectives? The record on this
is fairly clear in the Supreme Court decisions in
Sparrow and in Badger. Conservation is primary. Then
there's economic and regional fairness and recognition
of historical reliance on participation in, in this
case, the fishery. Then there's protection of public
safety and various other things that could be justified
as compelling public objectives. And as the Supreme
Court noted, the minister has the full range of
management tools and techniques available to him,
provided that their use, inasmuch as they limit the
treaty right, can be justified to meet these kinds of
Well, as someone has already noted here, in the
Gladstone decision, the court said in the right
circumstances, such objectives as the ones I just
listed are in the interest of all Canadians, and more
important, the reconciliation of aboriginal societies
with the rest of Canadian society may well depend on
their successful attainment.
The fact is the compelling and substantial public
objectives of conservation, economic and regional
fairness, and recognition of historical reliance upon
and participation in the fishery by non-aboriginal
groups have not been and are not currently being
achieved in our commercial fisheries as they are
currently managed. With the exception of the lobster
fishery, the current approach to management, access,
and governance in most fisheries will have to be
overhauled to accommodate treaty rights and meet the
public objectives the court has listed.
Why with the exception of the lobster fishery? Well,
the lobster fishery has been managed rather
successfully compared to most other fisheries, although
no doubt there could be improvements in conservation
practices and certainly improvements in terms of
access to the lobster fishery. I won't go into those
details at this point.
We want to address a couple of your issues around
models for fisheries management that might accommodate
aboriginal treaty rights, structures, and such. It is
our view that a community-based model of ecological
fisheries management has almost a unique chance of
accommodating aboriginal treaty rights, while at the
same time more effectively conserving the fishery,
providing for greater economic fairness, and
recognizing historical attachment.
The current system doesn't recognize the historical
attachment of fishing communities to their fisheries.
The fact that a person's allocation for groundfish is
simply related to a few years of catch history in
recent times is a travesty. It doesn't recognize the
historical attachment of that person, their family
before them, or their community as it currently stands.
So when we're thinking about accommodating these
rights, we need to think about what the current
situation is as well. Surely these public objectives
should be attained for both aboriginal people and the
broader fishing community.
The management model that dominates most fisheries
other than lobster is the single-species-based quota
management approach, which has by and large been a
failure, whereas the lobster fishery is managed much
differently and by and large has been a success. There
are some concerns here and there—in certain areas they
may be fishing it a little too hard, and some
adjustments could be made—but by and large, to
accommodate treaty rights with respect to lobster, we
would see just some tweaking necessary.
With respect to groundfish, herring, and some of the
other species, clearly a more significant overhaul will
be required, and in doing so, we don't believe it's
going to end up being possible to make the system
acceptable to all stakeholders. Choices will have to
be made in this process to best serve the public
interest. Certainly from our perspective, the public
interest is best served in the fishery outside of
aboriginal communities by maintaining the small-boat
inshore fishery and the economic viability of the
communities it supports up and down our coastline.
I've provided copies of Beyond Crisis in the
Fisheries. Some of you have seen this before. It
outlines some of the key principles, which I won't go
into in great detail, but I do want to talk about two.
One is the idea of proprietary rights to the fisheries
resource being allocated to coastal communities
dependent on those fisheries. The idea is that fishing
communities be given the kind of collective right held
by aboriginal communities through their treaties for
their members to earn a living from fishing, without
infringing on those treaty rights or aboriginal rights.
The second one is, beyond that, to place more
management responsibilities in public hands at the more
local level than we currently have. We've suggested a
system of management structure that would accommodate
this and that we certainly could see working well in
the broader fishing community. Obviously it's going to
be up to aboriginal communities what management
structure they're going to put in place, but
fundamentally, these management structures and this
community-based approach would operate through a trust
arrangement negotiated between the crown and the
communities, whether they're aboriginal or not.
We lay out a number of obligations under such a trust
arrangement that the local community or the aboriginal
community would have to meet. For example, they would
have to hold in perpetuity for all generations the
fisheries resource within their geographic area, within
their traditional fishing grounds; decide on new access
to fishery resources and ensure that access is
affordable; and ultimately administer the public trust
so as to ensure the greatest possible benefit for the
community in perpetuity, while respecting aboriginal
and treaty rights.
We don't see any tremendous difficulty in
accommodating treaty rights in the fishery, as long as
we recognize that in working towards that, the current
system is not currently meeting the compelling public
objectives that are set out by the courts for limiting
or providing the framework within which treaty rights
will be exercised.
I want to leave lots of time for questions. The last
time I appeared before a committee I went on way too
long. Maybe I can just leave it at that and we can
open the discussion.
The Chair: Thank you, David.
Mr. Stoffer, do you want to start?
Mr. Peter Stoffer: Thank you very much, Mr.
I tried not to say it, but I have no choice.
The Chair: Oh, his comment is going to be on ITQ.
Mr. Peter Stoffer: Although Mr. Coon didn't say
it, I'm going to say it.
As you know, David, I have been adamantly opposed to
the system of ITQs and EAs. That's quite obviously
what you're saying as well. Private individual
ownership to privatize what I consider a
common-property resource into the hands of a few
individuals is bad for everybody and especially bad for
As you know, right now an alliance or a merger is
about to happen, if it passes regulatory approval, of
the corporations of Clearwater, Bill Barry
of Seafreez, FPI, along with an Icelandic
group called NEOS. Some
people will say that's a business concern and they're
in a competitive market, and that's the way it should
go in order to protect the jobs and livelihoods in many
coastal communities. That may be so, but my fear is
that will concentrate the resource into even fewer and
fewer hands. Would you agree with that statement, or
would you disagree?
Mr. David Coon: Clearly what we're saying in this
brief and what we've said repeatedly is that the
approach DFO has been taking to public policy in the
fisheries, increasing the privatization of the resource
and increasing its concentration, is in our view not in
the public interest. There has to be a decision by the
federal government as to what are the clear policy
goals for the fisheries.
We would argue that in addition to conserving the
fisheries and maintaining all of the ecological
processes that allow fisheries and fish stocks to be
there, essentially the goal is to maintain the health
and vitality and hopefully restore the health and
vitality of coastal fishing communities that are
largely dependent on the fishery for not just their
economic well-being but their social and cultural
well-being as well.
Obviously, in view of the treaty rights and
in a view of history, we extend that to aboriginal
communities who were very much engaged in the fishery
for a long time. But perhaps the kind of extensive
engagement that once was there has backed off a little
through the failed assimilation policies of the
Canadian government during the 20th century, up until
25 years ago or so, and in the late 19th century.
Mr. Peter Stoffer: We did hear evidence, though,
where, for example, on Prince Edward Island, the snow
crab industry got together and formed an organization,
and they had sort of a co-management plan with DFO in
which they would include science, enforcement, and some
sort of allocation among themselves. It works very
We also heard of an organization of the snow crab
industry in area 19, up in Cape Breton, and it works
very well. They are very pleased with their progress.
There are 111 fishermen involved in that. There is an
ITQ within that concern.
There are many other people who say if it works for
them in order to co-manage the resource with DFO, then
it's a good model and a good example of what can happen
in order to preserve a specific species and in order to
work closely with DFO and the coastal communities.
Are you aware of those agreements?
Mr. David Coon: What we would argue is that
ultimately quota approaches to management cannot work
if the intent is to conserve the fishery. We cannot
know how many fish are in the sea, because there are
too many other factors that determine the health of
fish stocks. Therefore it will never work to simply try
to manage a fishery based on quotas.
As we have seen in the lobster fishery, which is not a
quota fishery, it has been managed relatively well,
setting limits on how you fish, limiting technology,
fish-capturing capability, and those kinds of things,
and using seasonal restrictions. You limit when you
can fish, and in some fisheries you limit
where fishing can be
done. You also limit what you can fish. In the sense
of the lobster fishery, you can't land buried lobster
and shorts, and maybe some time in the near future
you may not be able to land V-notched lobster, if
we go that way.
So in looking at fisheries management, we really
have looked at the lobster fishery as kind of a model.
We ask what works there and how that can be applied in
other places. We also ask what has been a disaster in
other fisheries. Clearly, this approach to quota
management has been a disaster.
Mr. Yvan Bernier: As I wouldn't want to get a debate going
with Mr. Stoffer, I'll look at the question differently.
You talk about conservation methods and management methods.
I'd like to get your opinion. This morning, we're trying to unravel
the points concerning the Aborigals and more specifically
concerning the Marshall case. In this affair, the crucial matter is
to define what a reasonable living might be. That's the challenge
issued by the Supreme Court's judgment. Another committee will be
set up by the Minister of Indian Affairs to look into the matter
more deeply with the Aboriginal bands. But the fishers have already
had to face this challenge in the sense that it's their resources
that will have to be part of these natives' reasonable living.
This summer, Canada ratified the United Nations Fisheries
Accord. I believe clause 5 of this treaty as well as section 3
stipulate that the signatories must agree to develop and manage
their fisheries in a profitable and sustainable way. But I just
can't get the Canadian senior officials to give me a definition of
sustainable management according to our Canadian vocabulary.
One day, I'd like us to be able to have a forum of experts to
hear the two schools of thought, the one in favour of mobile gear
and the one in favour of coastal gear, all this with a view to
ensuring sustainable fisheries. That might lead us to a definition
of "profitable fisheries". And if we get to that, we might one day
be able to define what a reasonable living is because to grant
someone a reasonable living, first you have to determine the
profitability threshold. Then you have to agree with the
Aboriginals to determine whether you have to add $1,000, $6,000,
$5,000, $10,000, $20,000 or $100,000 to the profitability
The Chair: Yvan, I hope you're getting to the
Mr. Yvan Bernier: I'm getting to it, I'm getting to it. Here's
my question: do you raise the points you're raising here concerning
conservation methods with the groups you meet or the contacts you
establish with the fishers? How can we deal with the famous quarrel
between those two positions concerning mobile gear—ITQ—stationary
gear and the competitive management system? Is there any way of
dealing with that? Those are two schools of thought that are always
at daggers drawn.
Mr. David Coon: No, they can't be reconciled.
We work a lot with fishermen's associations in the Bay
of Fundy. More recently, we have been working with
their umbrella organization, the Bay of Fundy Fisheries
Council, where actually, over the period of a year,
those fishermen's groups all around the Bay of Fundy
and Nova Scotia and New Brunswick have hammered out
principles of what they call good management or
sustainable management that look at it from an
ecological and a socio-economic perspective. I think
all but one of their more than a dozen members have
essentially ratified those principles. So there's some
excellent and fascinating work going on within the
fishermen's associations and fishing communities with
respect to that.
We don't believe you can reconcile the ITQ fishery
with maintaining communities engaged in the fishery.
Our frame of reference is the Bay of Fundy
specifically, because we've worked with the Bay of
Fundy fishermen's groups, and also, that's where our
family connections are. But in terms of moderate
livelihoods, as far as the inshore fishermen go, the
only people making moderate livelihoods in the fishery
are the ones who have lobster licences, and their
moderate livelihoods are coming from the trap limits
and seasons within which they operate. So you would
expect that similar trap limits and seasons should be
in place to provide a moderate livelihood for
There are those people who don't have lobster licences
in the fisheries. I can think of a fellow in Digby
County who can't afford one, because they have
become commodified. It is a travesty in Canada that
lobster licences have become commodified and out of the
reach of the average fisherman who wants to get into
the lobster fishery.
I know of a fellow who largely tried to eke out an
existence by handlining groundfish. He doesn't
have moderate livelihood, I'll tell you that. The only
way you can get a lobster licence is if you have access
to capital or are willing to accept the backing of
processing companies sort of behind the scenes. It is
a very serious situation.
In terms of moderate livelihoods, you can still look
at the fishery and at how inshore fishermen are
fishing, the kinds of limits that determine their
livelihoods, as separate from the ups and downs of fish
prices. How that is going to get dealt with is
anyone's guess, but for things like the lobster
fishery, it seems to us the trap limits in place are
providing a livelihood for lobster fishermen.
The Chair: Thank you, Mr. Coon.
I have one question.
You've talked fairly extensively about the lobster
fishery, and that as a model it seems to work well.
But in the context of the Marshall decision and the
clarifications on it, from your perspective, how do you
see bringing the native community into that fishery in
a way that does not jeopardize the stock or the
livelihoods of the regular commercial fishermen who are
Mr. David Coon: I think it's going to vary from
area to area. In those areas where the stocks may be
stressed a little more than others, maybe everyone will
have to take a little drop in their trap limit, and
maybe we'll have to bring in V-notching.
is where you clip the tail of a female that
is carrying eggs, and then you throw the lobster back.
There is a prohibition on landing it. You cannot land
lobsters with a notch in their tail, which allows the
females to reproduce a couple of more times.
It is used in Maine, and I think it has been part of
the saviour of that fishery. There has been no
limited entry in Maine and there have been no
trap limits until recently, but they have had
V-notching for quite a long time.
So there has to be an
adjustment in trap limits in some areas,
and V-notching probably would
be a good idea anyway, from a conservation perspective
across the Maritimes.
Other than that, it doesn't seem to us that there is
going to be a particular problem. There is a good
rationale for it. You may have to adjust the seasons a little
bit. If you look at the justifications laid out
for limitations on fishing under the treaty, you have
to ask, what's the justification around seasons?
There are questions of economic fairness. It is a
fact that in the lobster fishery the best fishing is
in the first couple of weeks and then things go
downward. So you don't want one group being able to
benefit from that first couple of weeks before
everyone else can.
From a conservation perspective, in a sense, the
seasons were brought in originally.... Remember that
our lobster rules date back to the 19th century. The
fundamental rules that maintain the fishery haven't
really changed that much. Originally, the rules were to
have no fishing on moulting, soft-bodied
lobsters, but it wasn't so easy to enforce, so the
seasons were brought in to coincide with when the
lobsters were moulting and soft-shelled.
Those seasons have changed. Depending on where
you are in the region, sometimes the seasons don't fall
biologically when that moulting occurs any more. Perhaps the
seasons have to be adjusted a little bit to
meet the necessary justification for conservation purposes.
From a conservation perspective, interestingly
enough, you find in some areas that
they make perfect sense, as in the Bay of
Fundy. The seasons generally fall right when
the moulting and so on is happening. In other areas it
doesn't coincide with that quite so well.
So there has been some fooling around with the seasons over
time to the point where DFO argues they're not a
conservation measure at all. And then in some regions
you can see why that might be the case. These things can
be worked out without any great problems.
The Chair: An area where there are no seasons
is in the food fishery
granted under Sparrow. We have heard a lot of
criticism on the food fishery during this tour of
hearings that it sets up an illegal black market, in
some instances, for both aboriginals and
non-aboriginals. What impact, in your view, does that
have on the conservation of the lobster fishery, and how
can you handle it, given the decision by the Supreme
Court through Sparrow?
Mr. David Coon: Do you mean handling the black
market that might—
The Chair: Handling the lobster,
the fishery for food and ceremonial purposes.
Mr. David Coon: Clearly, that is in a
different wet box, because you are talking about aboriginal
rights, not treaty rights. The
implications of that are quite different in terms of
how those are regulated. So I don't think the problem
is with the food fishery; the problem is probably the
concern around the black markets that may be developing
To us, this is the same concern that exists around
poaching in the broader community. Those things need
to be enforced.
We have seen a lack of courage around
enforcement overall. The one thing fishermen complain
about a lot is the lack of enforcement. To us, that
seems to be the case.
This is going off on a bit of a tangent regarding,
for example, violations of discarding and high-grading.
In a report we published with
the Ecology Action Centre last year it revealed
a disturbing lack of enforcement around
those very obvious violations.
Enforcement is a big issue. As it is set up
under the current system, enforcement is not being
carried out very effectively.
The Chair: Since enforcement also comes up fairly
extensively, I wonder if you could send a
copy of that study to the clerk, or we could get Alan to
get it perhaps.
Mr. David Coon: Absolutely, yes.
The Chair: Thank you very much, David, for your
presentation and for the booklet as well.
The next witness is from the New Brunswick Wildlife
Federation, Mr. Fred Wheaton.
Welcome, sir. I note, Mr. Wheaton, you've a fairly
extensive brief. Can you highlight it fairly quickly
so there will be some time for questions?
Mr. Fred Wheaton (Chairman, New Brunswick Wildlife
Federation): Thank you, Mr. Chairman.
invitation we received we were asked to address two
issues: first, our concerns, and second, our
interpretation of the Marshall decision and review.
If it's your pleasure, I will just address question
one. We've highlighted in point form in our
submission our interpretation of the Marshall decision
review. You have probably heard it all before and
there's probably not much point in my going through
that now, unless you wish.
The Chair: Fire away just as you desire, Mr.
Wheaton. We will question you on the brief.
Mr. Fred Wheaton: Our federation was organized in
1924, and it's the largest conservation organization in
the province. We believe in the wise use of natural
resources. Our federation represents fish and game
clubs all around the province. We are the New Brunswick
affiliate organization of the Canadian Wildlife
Federation. We take positions on issues involving
wildlife, habitat, hunters and anglers.
I might add
that we are a volunteer organization. We currently
have one paid employee, our executive director.
Recreational fishing is an industry. It was worth
about $50 million to New Brunswick in 1995 and supports
many hundreds of jobs. According to a 1993 study, a
restored recreational fishery could increase the economic
value of the $50 million to $135 million, along with
another 850 additional jobs.
Your question to us focuses on the economic viability
of the industry. Although recreational fishery is an
industry, we would like to point out to you that
recreational fishing is also a part of our tradition,
heritage, and culture in New Brunswick. There is an
historical participation in that fishery.
We agree that it is paramount to ensure the sustainability
of fisheries resources. However, these resources are
in serious decline. Provincial angling licences have
decreased by 50% in 15 years. Our trout catch has
declined by nearly a half and the recreational salmon
catch by two-thirds.
Our trout catch limits have been drastically
decreased. The Gulf of St. Lawrence striped bass
fishery has been closed, and much of the salmon fishery
in the province has been closed. The outfitting
industry is suffering. For most cases there is no room
for increased harvesting of these three species, which
support most of the recreational fishery. Our chief
concern is how the implementation of treaty rights
recognized and affirmed by the Marshall decision may
impact these resources.
There are currently no legal commercial fisheries for
salmon, trout, or bass. Over the past 20 years nearly
2,000 commercial salmon licences have been retired, at a
cost of around $20 million.
We feel abandoned by the Department of Fisheries and
Oceans as we watch federal hatcheries being divested or
closed and we see conservation enforcement efforts
Although the management of all fish stocks in this
province is the responsibility of the Department of
Fisheries and Oceans, the department does not in fact
manage recreational fisheries, other than putting
regulations in place for salmon and striped bass,
leaving the province to manage the rest by default
while refusing to give the New Brunswick government the
tools to do the job. We feel we need an agreement
between the agencies to allow the province to manage
The courts have suggested that agreements be put in
place, failing which resort to the court can be had.
Really what should be done is the total renegotiation
of the treaties on all issues, federal and provincial,
not just on a piecemeal basis, which is what is being
Failing that, agreements should be reached, but
consultation is essential now so that the agreements
will be in place early in 2000 to manage the fisheries
next year. It is to be noted that the CWF policy
paper, which we've attached, suggests full consultation
with stakeholders, including non-natives.
The existing native salmon food fishery quotas, in our
opinion, are too high in some cases. Because of low
returns, no large salmon should be taken, period.
These are the big spawners that are essential to the
restoration of the fishery. It's to be noted that at
present there's no commercial non-native fishery, and
anglers are restricted to grilse—namely,
one-sea-winter fish. It is essential that reasonable
quotas be set for all aspects of the fisheries and that
mechanisms be put in place for full and accurate
reporting of harvests by all participants.
It is to be noted that necessaries would come from all
hunting, fishing, and gathering activities, not just
the fisheries. That's why there should be negotiations
across the board on all issues, and not simply on a
We feel the onus is on the Department of Fisheries and
Oceans to manage the resources for conservation in the
first place, with excess allocations to user groups.
Our question is what does the Department of Fisheries
and Oceans intend to put in place to ensure accurate
reporting and to prevent abuses?
I'll stop there, Mr. Chairman, if you wish, and take
The Chair: Thank you, Mr. Wheaton, for laying it
out directly as you see it. We appreciate that.
Mr. Cummins, do you want to start?
Mr. John Cummins: Thank you very much for your
presentation this morning, Mr. Wheaton.
In the document you provide from the Canadian Wildlife
Federation, you set a priority of users. You have
aboriginal sustenance users, non-aboriginal sustenance
users, recreational users, and commercial users. How
do you define the non-aboriginal sustenance users?
Mr. Fred Wheaton: I wish I had my president here,
because he's our director on the CWF board, and they
examined that issue at their last meeting, just last
month. I don't have an answer to that question. It
might refer to outfitters, people living in remote
areas who use the resources for food.
Mr. John Cummins: Because the priority set in
Sparrow is conservation of the resource, aboriginal
users, sport, and commercial. The aboriginal users
will now include, I guess, aboriginal users as defined
in Marshall, in this treaty right to the commercial
It seems to me there's not so much a potential
conflict, but a potential bone of contention in some
areas perhaps, because if you look at commercial usage,
it generally entails a fair number of fish, but sport
use would mean probably a much lighter harvest. There
would be quite a difference in the numbers. So you
could allow sport-harvested fish or a sport fishing
operation to be in place without impacting on the
conservation of the species, whereas you couldn't allow
a commercial fishery to operate, simply because the
harvest would hit the species too hard.
But if the court interpretation is taken to be that
the treaty right under Marshall is given a priority
over other commercial users, there is going to be a
conflict, I can see. Would you agree? Is that an
issue of concern to your group?
Mr. Fred Wheaton: Yes, that's our chief issue of
concern. When we saw what happened here when the
Marshall decision was first announced and what happened
on our north shore, in Burnt Church and some other
places, we immediately became concerned that some
people might interpret this as open season on some of
our other stocks, such as salmon, trout, and bass.
These species are just in desperate shape here in the
province. Some of our salmon stocks in the Bay of
Fundy and this river right out here, the Petitcodiac,
if they disappear, they're gone. We're below spawning
escapement on the whole Fundy side as far as our Fundy
river salmon go. Our Miramichi has been in a state of
decline for the last eight or ten years, if you want to
plot a curve on the population returns. Our trout
stocks have been decimated through overharvesting and
habitat destruction over time, so we're trying to
Our point is we can't see how there could possibly be
a moderate living to be made in there for anyone, if
moderate living is the definition.
Mr. John Cummins: Yes. With sport fish in this
province, meaning Atlantic salmon, there's simply a
problem of survival of the species, let alone any
discussion of who's going to get first crack at it,
when you consider some of the problems.
I know this committee is considering looking at the
impact of transfer of disease from fish farms to wild
stocks and all that. Those things must be a huge
concern to your association.
Mr. Fred Wheaton: They certainly are.
Recreational anglers have not been allowed to retain
large salmon, or multi-sea-winter salmon, since 1984.
And I believe the limit is eight per year per angler on
the smaller fish, or grilse, which do not contribute
anywhere near what the large fish do for spawning. So
we're desperately trying to conserve as many of those
large fish as we can.
Mr. John Cummins: The impression I'm coming to,
certainly on this coast here, is that before anybody
who wants to harvest the resource gets into a
discussion of who's going to go first, the survival of
the resource has to be of concern for everybody.
That's the key issue. You may want to comment on that;
I don't know.
Mr. Fred Wheaton: That is the key issue.
Obviously without the resource, there's nothing for
The Chair: Before Mr. Steckle comes in, I'd like
to say something. Since the Marshall decision, the
area that certainly got all the coverage and the area
where we know to a great extent what's been happening
has been the lobster fishery, be it in Burnt Church or
Malpeque Bay or wherever.
Has there been any additional impact on the salmon,
trout, and bass resources as a result of the Supreme
Court decision? Have there been any activities there
that we're unaware of?
Mr. Fred Wheaton: Not that I am aware of. It
would have been rather late in the season, when the
Marshall decision was handed down, for trout and salmon
fishing in the traditional timeframes. But no, I'm not
aware that anyone went in and targeted bass, trout, or
salmon since the Marshall decision.
Our concern is what will happen next June, when the
traditional time for that fishery might start. That's
our concern now.
I don't feel it's impacted to any degree since the
The Chair: Mr. Steckle, who I know is an avid
hunter and fisherman, go ahead.
Mr. Paul Steckle: I'm not as familiar with the
east coast sport fishing industry as I am with the one
in Ontario, but it seems to be a national phenomenon
that the governments, whether provincial or federal,
are walking away from some responsibility they might
have towards that particular sport.
You mentioned in your comments here that the federal
government has divested itself of its responsibilities
in fish hatcheries. How much of that obligation to put
fingerlings back into the waterways has been taken up
by private interests, whether they be local anglers'
and hunters' groups or simply people interested in the
sport? Have local people taken up that responsibility
or have they not?
Mr. Fred Wheaton: They certainly
have to a degree in this province. We had a federally
funded recreational fisheries program here a few years
ago. I believe it started in 1992, and it ran for five
years. That has spawned, if you will, a number of very
good restoration projects in various areas of the
province. A lot of them have to do with habitat
restoration, and certainly some stocking.
As far as the hatcheries are concerned, the Miramichi
hatchery currently is being operated by private
interests. I obviously don't know if they'll be
successful in the long haul, but they are growing fish,
and those fish are being stocked—salmon and trout—by
volunteers in the various areas of the Miramichi
Mr. Paul Steckle: Who's supporting that? Where
are they achieving their finances? For private
individuals fishing for sport purposes, obviously they
have to buy licences, is that correct?
Mr. Fred Wheaton: That's correct.
Mr. Paul Steckle: Where do the resources go from
those? Do they go back into the sport, do they go back
into this industry, or are they lost in the general
Mr. Fred Wheaton: Up until three or four years
ago, all the licence revenues did go back into general
revenues. Since that time, the New Brunswick Wildlife
Council has been established and a $5 surcharge on
every hunting and angling licence sold goes into the
New Brunswick Wildlife Trust Fund, which is
administered by a volunteer board. That program has
been funded at probably around $1 million a
year in hunting and angling projects around the
province for the past two or three years. So some of
it is now dedicated or is going back in. Actually, the
trust fund did give some funding to the Miramichi and
the Charlo hatcheries over the past two or three
years to help support their efforts. That money isn't
coming from the federal government.
Mr. Paul Steckle: I want to relate it to something
that happens in Ontario. Ontario realizes somewhere
around $65 million just in GST alone in the industry of
sport fishing. I'm just wondering why it's so
difficult to get government orders for DFO to
understand the importance of this particular industry
when there's such a realization of revenues from the
sport. There is a big payback here. Why is it so
difficult for them to understand that? What is your
view on that?
Mr. Fred Wheaton: I wish you could tell me. I've
shared your view for a good number of years, and I
really don't know. If you look at the economic value
of the recreational fishery—I don't have the numbers
in front of me—it is staggering in terms of the
revenue and economic activity that is generated, yet we
don't seem to have much priority from DFO at all. That
seems to be at the headquarters level in Ottawa as far
as I can tell. I don't know.
Mr. Paul Steckle: What would you do if you were in
Mr. Fred Wheaton: I guess I would.... I don't know.
In what regard? Could you give me a little...?
The Chair: Paul is a member on the government
Mr. Paul Steckle: I'm on the government's side.
The Chair: Not always, though.
Mr. Paul Steckle: We'll put you into my position.
What would you do if you were me? As difficult as it
is for you, in your mind you must think it must be in
my position to change things. Sometimes I think it's
difficult. It may be more difficult to do that from my
Mr. Fred Wheaton: I think I would be asking your
Minister of Fisheries and Oceans why the situation
we've just discussed exists, and what could be done to
remedy it. I would try to tell him of the importance
of the fisheries. I would ask him what's going to be
done, what safeguards are going to be put into place
for the upcoming spring, to protect these valuable
stocks that are at very low levels. What's the plan?
What's the strategy? Do you have one? If you don't,
you had better get one.
The Chair: Thank you, Mr. Wheaton.
Mr. Paul Steckle: I guess there's one other
element, and that's the science of this thing. Who
predicts, who can predict, or who should predict?
Obviously, if DFO has abdicated its responsibilities to
this particular industry, where is the science coming
from? Who's telling who that the fish stocks are being
depleted abnormally, much more quickly than they should
Mr. Fred Wheaton: For Atlantic salmon and striped
bass, the science is coming from DFO. The science is
being carried out largely in Moncton and in Halifax at
the regional level, and in the field. They're doing a
fair amount of assessment on striped bass and salmon.
Our problem with the salmon is marine survival.
Something's getting them out there, but we don't know
what it is. The North Atlantic is a pretty big black
box to try to do research on, so I don't see that we're
going to find much out there.
As far as our trout, blue-line bass, and
other stocks are concerned, there is virtually no
assessment done by anybody. It's a guess, largely by
provincial biologists, and it's usually anecdotal.
There's really no assessment being done of those other
species. The brook trout is the backbone of our
fishery here, in terms of economic activity
The Chair: Thank you, Paul.
Mr. Peter Stoffer: Thank you, Mr. Chair.
Thank you, Mr. Wheaton, for your report. I always
admire the grassroots people who try to protect the
natural resource for the benefit of all, in terms not
only of recreational activity, but economic activity as
well. You and your organization should be commended
for the work that you and other organizations clear
across the country are trying to do at the grassroots
level, with minimal or no financial assistance from the
federal government, and in some cases none at all from
the provincial governments.
I have a couple of concerns. You mentioned that there
is no question that the fees that have been downloaded
to fishermen and their organizations have been
tremendous, whether they be warrants, enforcement,
fines, increased licence fees, or anything else.
And then we're trying to tell these individuals who
access the resource to go out and make a moderate
livelihood, with all these increased and downloaded
fees from the DFO.
I've been working with the Margaree hatchery,
trying to get $50,000 from the DFO in order for them,
in the next two or three years, to operate their
hatchery and provide a great economic livelihood for
that area of Cape Breton, which was a great fishing
river, as you know.
Why do you think that government is so
hesitant—negligent is another word—to provide the
assistance that is so desperately required?
Mr. Fred Wheaton: I don't know, and I don't know
for the life of me who dreamt up the policy of
divesting these hatcheries, trying to offload them onto
private industry and then specifying that you have to
be a non-profit organization in order to run the damn
Mr. Peter Stoffer: Call me crazy, but I have a
sense of contradictory paragraphs in the brief you
presented us with the attachment from the Canadian
Wildlife Federation. On the provision of rights based
on aboriginal status it says:
In a democratic society, the recognition or
provision of special rights by governments should not
be based on aboriginal or non-aboriginal status. All
Canadians should be treated equally under Canadian law
and governments should promote increased equal
In the following paragraph it says:
“No person should be granted exclusive rights to harvest
or manage wildlife based on their aboriginal
status,”—and here is the problem with that—“except
on native reserves or other lands owned
exclusively by aboriginal persons.”
In one paragraph you say everyone should be treated
equally, and in the next paragraph it says only those
natives on reserves or other lands owned exclusively by
aboriginals would have rights or access to manage or
harvest wildlife. Do you not see a contradiction in
Mr. Fred Wheaton: Yes, I think so.
Mr. Peter Stoffer: This is a brief that was
presented, and I'm just wondering why that would be
Mr. Fred Wheaton: Again, I wish I had my president
with me, because he is a director of the CWF and he was
in on the review of that policy. I haven't seen that
in years. He gave it to me and told me to haul it in
there. I can get you that answer if you wish.
Mr. Peter Stoffer: If you don't mind, at your
convenience. For the committee, that would be really
Mr. Fred Wheaton: Okay.
Mr. Peter Stoffer: Again, I wish to thank you and
your organization for trying to put out your thesis for
the benefit of all.
Mr. Fred Wheaton: Good luck with your Margaree
hatchery. I hope you find the money for it.
Mr. Peter Stoffer: I'll answer that question for
you. If I were on the government side, I'd walk into
the minister's office and say “Give me a cheque for
$50,000, and we'll send it to Mr. Wheaton; and another
one for the Margaree hatchery, and we'll solve that
problem.” It's done, there you go.
Mr. Fred Wheaton: That's right.
The Chair: He loves to spend money. We know that,
Peter—especially when it's other people's money.
Mr. Peter Stoffer: It's an investment.
The Chair: Mr. Power.
Mr. Charlie Power: Let Peter finish.
I'd like to congratulate you on the extra work you
do. As a hunter and fisher in Newfoundland, I'm
involved with some of the organizations there. It's
noble work to do, and very difficult work at times.
I'll answer Paul's question of why the federal
government, the Department of Fisheries and Oceans
in particular, has abandoned the tourism, sports, and
recreational fishers in Canada. I think through
downsizing and through some of the pressures they've
had in DFO, they really have become the department of
commercial fishers, or the department for the
commercial fishery. Many commercial fishers would say
they're not doing a great job at that, but that's
really what they
become—in science, in enforcement, and in management.
If the Government of Canada looked at the size of the
recreational sport industry in Canada, including
hunting and fishing, and realized what tremendous
economic impact it has on both the government and on
individuals, it might want to have a department of fish
and game, or a junior minister of fish and game, which
would bring the concerns of that industry to a cabinet
table and give it the high priority it deserves. In
many parts of this country it's a huge asset, and it's
been part of our tourism industry. Fish and game is a
That's probably why that's happened, because the
commercial fishery has taken over DFO completely and
How much money do you think would be required to
really get the salmon and trout industry here back? How
much money would you need to invest in hatcheries,
enhancement projects, and that type of enhancing to
make sure you have a viable fishery into the future?
Just give me an answer fairly quickly if you would. How
much money would be required to get the thing back on
You mentioned several times in your paper that there's
no legal fishery. How big do you think the illegal
fishery is in salmon, trout, and other species here in
Mr. Fred Wheaton: On your last question, how big the
illegal fishery is, I think the answer to that is that
nobody knows. I'm sure DFO doesn't know, because it has
cut back its field staff by about two-thirds over the
past 15 years or so. We don't know, because poachers
don't normally operate when people see them. I would
suggest to you that poaching in this province is
probably a hell of a lot less now than it was 15 or 20
To your question on what it would cost to restore
our fisheries, again that's anybody's guess. I don't
know if there would be enough money to do anything for
the Atlantic salmon. I think we've got a problem in
the North Atlantic. It may or may not cure itself. I
think it's environmental, and I think most salmon
scientists would agree with that. We have rivers that
are turning out really good numbers of smolts going to
sea. Our juvenile levels in the Restigouche and
Miramichi, our two big systems, are far better than
they were 20 years ago, and they continue to be stable
or to increase. So we're turning out the little fish,
the Atlantic salmon. We think they're getting to sea,
but we know they're not coming back in the numbers they
I don't know how much money you can throw
at that or if it's practical to spend a lot of money
on research in the North Atlantic to determine what the
causes are. If you find the problem, will you be able
to fix it?
Mr. Charlie Power: Yes, there may not be a
Mr. Fred Wheaton: Where do our trout and other species
go? Three hundred thousand dollars a year would run
the three hatcheries that have been either closed or
divested. A hundred thousand dollars a pop a year
would give you a minimal operation that would do a
pretty good job in a lot of cases.
Mr. Charlie Power: So it's not big money.
Mr. Fred Wheaton: No, but I think we need to put some
money into more protection. We still have some
problems out there with enforcement, and I would like
to see that effort beefed up or at least brought back
to some heart rate of what it was a few years
ago. How much? I don't know.
The Chair: Thank you, Mr. Wheaton.
Mr. O'Brien, you have the last question.
Mr. Lawrence D. O'Brien (Labrador, Lib.): Thank
Mr. Wheaton, I'm from Labrador, so obviously I
know the wildlife side of things pretty well, relative
to the life I live. I have some of the same concerns
you are expressing.
In terms of the question on Atlantic salmon, who
knows? We're all getting pretty good parr and smolt
coming downstream, but it doesn't seem to bring back
the same results one, two, three, or four years later.
I'm sure there are a lot of factors, from seals to
seagulls to God only knows.
My concern is along the same lines you've expressed
some thought on and had some discussion back on,
particularly with Mr. Power and Mr. Steckle. It's
along the same lines.
We feel in my
tip of the woods, if you can use that word, that
the signs and the enforcement are two very fundamental
issues relative to a number of these issues. I know
you have addressed that, and I know you made some points
on it, but I would like to get your view.
I have heard the point the honourable member across
talked about, that maybe there should be a junior secretary
of state or junior state department on game fish,
because relative to the attention that's being paid to the
commercial and corporate sectors of the fisheries we seem
to find ourselves, as recreational fishers and as people
trying to protect the recreational resource,
for lack of a better term, at the bottom of the barrel.
Can you expand a little more on that thought process
of what you've heard from other members and what I'm
expressing as well?
Mr. Fred Wheaton: I really never had considered a
junior ministry or some other way or branch of
the Department of Fisheries and Oceans,
but it certainly sounds like an
intriguing idea. My general view would be anything
that can be done to raise the issue of the true value
of the recreational fishery on Kent Street in Ottawa
would certainly be a help, because it doesn't seem to
have much priority there now.
The Chair: Thank you, Mr. Wheaton. We will have
to leave it at that and go to the final witness of the
morning from the—
Mr. Fred Wheaton: Mr. Chair, may I leave you
with one question?
The Chair: Yes.
Mr. Fred Wheaton: We have reviewed the last
document from the court regarding the clarification of
Marshall. It seems to me what we seem to be reading in
there is that these treaties that are referenced were
signed with individual aboriginal communities, rather
than one treaty applicable to all.
I've been trying to find out, and no one can tell me
so far—I'm sure I will find out in a little more
time—if these treaties that were signed
between the bands and the crown have application to the
bands here in New Brunswick as well as the ones in Nova
Mr. John Cummins: We got a list of those this
morning from Professor David Bell of the University of New
Brunswick. There is a list attached to that. If we
have an extra copy we could give it to you.
Mr. Fred Wheaton: I'd appreciate it.
Mr. John Cummins: I'm sure that details and
will verify that indeed it does cover bands in New
The Chair: The clerk will get you a copy, Mr.
Wheaton. Thank you very much.
Mr. Fred Wheaton: It is much appreciated. Thank
you for the opportunity.
The Chair: Now we have, from the Acadian
Groundfish Fishermen's Association, Mr. Gauvin.
Welcome, Alyre. The floor is yours. I don't think
your submission is too long, so you probably want to
either highlight it or read it and then we will go to
Mr. Alyre Gauvin (President, Acadian Groundfish Fishermen's
Association)): Thank you, Mr. Chairman. Good morning everyone.
I don't have a very long document. If I had heard earlier on
the last two statements that have just been made and if I had known
that I'd be debating the Atlantic fisheries management and
conservation modes as to which are good and which are not, it
doubtless would have been much longer.
Today, I only expected to discuss the impact of the Marshall
judgment and the position we should adopt concerning this judgment.
Anyway, it might be an idea to throw the ball back to you, members
of this committee, and ask you if you have anything new to add to
the discussions that have been going on way too long now concerning
our present management and conservation modes.
When I hear those things, I still remember that the Canadian
government had established a 200-mile economic zone in the mid-70s.
Probably the government's intent, as well as the industry's, was to
keep away from our shores the fishers from foreign countries to
show them that we could go and catch the fish there and supply the
Some, like the offshore and semi-offshore boats met that
challenge, the coastals having chosen to conserve the far more
traditional fisheries that went back, say, 10, 15, 20 or 30 years
or even several hundred years.
That said, Mr. Chairman, I'll get back to why I'm here today.
I'm the president of the APPFA. The APPFA is the Association des
pêcheurs de poisson de fond acadiens (the Acadian Groundfish
Fishermen's Association). At this point, it represents 17 semi-
offshore fishers, all under the ITQ regime. You should also know
that these fishers have been the most severely affected by the
groundfish moratorium since 1993.
Of the 32 we were in 1993, when the cod fisheries were closed,
we're now down to 17. And when I talk about the fishers in my
document, Mr. Chairman, you should also know that I'm talking about
captain-owners. Those 17 fishers are all owners of fishing boats
that, on average, each hire on four crew members.
Mr. Chairman, we think that we'd first have to find out what
kind of participation the Aboriginal peoples want. Do they want
partial participation at a subsistence level or more? In our
opinion, they must clearly define their needs so we can be better
prepared and position ourselves accordingly. For each one of the
species, the negotiations will have to involve the Aboriginals, the
government and the groups directly affected because they depend on
I was saying before that I represent the group that depends on
groundfish, in other words a group that only has that single
licence to fish and that has been going on for dozens of years,
well before the moratorium. Mr. Chairman, probably before there are
tripartite negotiations, the government would have to facilitate
meetings between the most interested parties, the natives and the
fishers, who depend on those species.
One thing for sure: the government should never, when
negotiating on one species, give away another. I'll give you a
recent example; this year, actually, 1999. The Minister had
decided, after having spent $550 million since 1993 for
rationalizing the groundfish fishery, that we were too many fishers
in that area and that we were too dependent on that resource. You
told us we should be fewer and rationalize and that he would
financially help us to do so.
We rose to the challenge. As I was saying before, in New
Brunswick alone, we went from 32 to 17 fishers depending on
groundfish. That means quite a decrease in crew members, a lot of
jobs lost and also a lot of jobs in the plants.
In 1999, the department announced the reopening of commercial
cod fishing in the gulf. From 32, we went down to 17; we're all
under the ITQ. No matter what some may think, we liked the ITQ
because it guaranteed access to a resource we depend upon.
This year, the department agreed to another way of doing
things. Why? To shut up certain groups asking for integrated
management coastal areas. That meant they wanted parks along some
coast lines which would have allowed them to co-manage that with
the federal department for the good of their fishers. That was
refused for all kinds of reasons. After they presented a document
that took some five or six months worth of research and other work,
the department stated it could not accede to their request.
We were then told, not by just anybody but by direct
assistants to David Anderson, who was the minister last spring, and
other senior officials of the federal government, that our share by
flotilla had to be changed. They had to decrease it to give it to
a coastal group to buy peace up because those coastal fishers would
not have been happy as long as they didn't get their integrated
management coastal zone.
So all that effort we put into the rationalization of our
group, all the effort and all the money that were spent by the
federal Department of Fisheries and Oceans and the Human Resources
Development Department to rationalize the fisheries, all that was
in vain because the sectors that got the major share, 72% of the
quotas freed up because of our rationalization, managed to multiply
by five or even by six the number of groundfish fishers during the
first year that fishery was reopened, this year. They went from
fewer than 100 fishing in 1993, the year of the moratorium, to over
600 this year.
What I fear today and what I presume, Mr. Chairman, is that
during the departmental negotiations concerning certain species and
cohabitation between Aboriginals and fishers, the coastal fishers
will be the first to be consulted because of accessibility and ease
Those who know fishing a bit more—maybe Mr. Bernier himself
who represented semi-offshore groups—know that mid-shore fishery
is a lot like offshore fishery. It requires investments in bigger
boats. The fishers who go to sea for the whole week instead of a
single day need far better knowledge of the area. It's not easy for
anybody. I'm not questioning the intelligence or the capabilities
of anyone. It's a matter of skill. It's a matter of mastering your
craft. It's a lot more complex.
If the department is going to negotiate, in the lobster
sector, for example, with the inshore fishers and suggests they
make generous room for the Aboriginals and not to worry about the
resource because they'll be given something else taken from someone
else... Robbing Peter to pay Paul, in my opinion, isn't a good way
to manage the Atlantic fisheries. It's not a proper conservation
method nor is it a good method to maintain economic stability in a
region. Believe me, what was done to the fishing fleets robbed us
and we're going to have trouble digging ourselves out of that hole,
The APPFA recognizes the Supreme Court decision as well as the
acquired rights of the Aboriginals. Once again, Mr. Chairman, we
have been kept in ignorance, probably by the government of Canada,
about this whole matter for too long. When the government of Canada
patriated the Constitution in 1982, I am sure that someone must
have been aware of these things. We in the fishing industry, an
organization of fishermen working for the welfare of our groups and
the advancement of our sector, were never informed about what could
happen one day.
We suddenly woke up one morning to find out about a ruling
that will probably result in a great upheaval. I hope that the
government of Canada will at least have the decency and the common
sense to assume its responsibilities. I hope that this time it will
make it possible for us to sit down at the table with these people
and to negotiate in good faith concerning their rights. There is no
need to assume today that because they have these rights, we must
simply withdraw from the field and allow them to take over. I don't
think that would be acceptable.
If the shares allocated to a fleet or to a province are to be
modified to make some room for them in the fishery of the
year 2000, that is perfectly understandable but it must not be done
without consulting the parties that are already present and that
have built up this industry for so many years. We have built up the
industry over the years and we expect our rights to be respected.
We were told, and I think the Fisheries Act is quite clear,
that our licences as non-native fishermen were privileges. That may
be but the industry that we have built is an achievement and a
right that must be recognized. There is no getting around it,
Mr. Chairman. Thank you.
The Chair: Thank you, Mr. Gauvin.
Have you had
any discussions yet—or any invitations to discuss—with
Mr. MacKenzie, who is looking at some of these issues
as well and is the chief federal representative on the
Mr. Alyre Gauvin: No. We did not receive any invitation to
Mr. Chairman, we are a very small organization with very
limited financial means. Forums such as this are very often the
only opportunities we have to make our point of view known.
I don't know whether there is a lack of communication between
the department and the parties but it was only through the media
that we learned about Mr. Mackenzie's appointment and even your
visit to the Maritimes. I think there is a huge communication
problem. We are always faced with a struggle to make ourselves
heard and get our point of view across. No one ever takes the
initiative of asking us what we think. I assume there is a problem
somewhere. Is there something about me that disturbs too many
people? I sometimes wonder. People sometimes say that to me but
that is another story.
You should also know, perhaps you already heard, that a new
council is in the process of being set up. It is an organization we
are interested in, namely the Atlantic Fishery Industry Alliance
and we intend to become a member. They have already met Mr.
Mackenzie and Mr. Thériault and it is our intention through this
alliance to attempt to meet them.
The Chair: Thank you. And we're certainly glad to
have you here to speak your views, Mr. Gauvin.
Mr. Yvan Bernier: I'd like to greet the witness.
It is true that in a previous life I worked in the field of
fisheries for a fishers' association equipped mainly with midshore
vessels but when I... I think a bit of background is necessary
since we started with a witness who spoke about past experiences
this morning. In this midshore association there were boats that
fished using a long line, something that is not mobile gear.
I already mentioned that at one point we are going to have to
settle this debate between the two schools of thought. We won't be
able to do it today. Yet it is important to mention this subject
because we are going to have to determine, insofar as possible,
what type of gear can be used for sustainable fishing. That is
something that will have to be done.
I'm going to say something that may hurt my friends and I hope
they won't become my former friends but in view of the scarcity of
our present resources, it will be necessary to decide when we start
fishing again whether we will make less use of certain types of
gear. That is something we will have to do.
Since we do not all share the same views on this subject—I
can see Mr. Stoffer—, I would like the witness to repeat for the
members that when they began working under an individual quota, it
was on the basis of their previous volumes. People must understand
that this management tool was developed because the situation at
the time was one of dire poverty.
I'd also like the witness to remind us why negotiations must
take place for each of these species. Moreover, taking into account
the history of their association and their activity, and in
referring to the past while realizing full well that things cannot
continue as before, I would like him to tell us whether the group
that he represents, which is an open-minded one, would be willing
to change their fishing gear if necessary. Is it something you are
willing to consider?
I think that would be good to start off the debate since I'll
have to ask the question of both groups. Thank you.
The Chair: Mr. Gauvin.
Mr. Alyre Gauvin: First of all, since you talked about
history, Mr. Bernier, and you said that we were in dire poverty,
let me specify that the individual transferable quota was adopted
following the first crisis, particularly in the groundfish fishery,
that took place in the 1970s and caught many people unawares. The
difference at the time was that there were many sectors where
species were not fully exploited and this allowed certain fleets to
fish other species without causing any great disturbance.
Around the middle of the 80s, because of the way in which
things were being managed, we realized that we were heading
towards... I mentioned in my presentation that the Canadian
government and the fishermen had to demonstrate to the foreign
fishermen that they were capable of fishing to supply international
markets. We proved to be far too capable. We were very quickly too
capable for the good of the species themselves. Technology
developed so quickly that we were unable to assess the impact of
this kind of fishery.
Around the middle of the 80s we realized that something had to
done. Was it the gear that was dangerous? Was it the type of
management or the fishermen? Where exactly was the problem?
The main problem as we saw it was the economic one: people had
to catch their share of fish as quickly as possible before
everything came to a stop. That what to some extent the approach we
adopted. Offshore and midshore fishers decided that they had to
find a way of ensuring a catch rate sufficient to provide a certain
income while recognizing all of the fishers involved rather than
continuing this unstoppable scrabble for resources. That was our
point of departure. We asked ourselves: “What have been the
historic landings for each fleet in each province? What has been
done by each of the fishermen over the years to develop this
For example, the group I represent is part of an ITQ group.
Quebec, New Brunswick, Prince Edward Island, Nova Scotia,
Newfoundland, South West Nova Scotia, all these midshore sectors
said that they would calculate the individual quotas based on the
historic fishing activity of each of them. For example, 26.98% of
the overall quotas allocated in the Southern Gulf belong to our ITQ
group. Historically, our landings accounted for 26.98% of the total
and this was our share. For example, this year, we had a quota of
6,000 tons in the Southern Gulf; a share of 26.98% of this quota
should belong to us and it is divided among the participants in
this sector of the fleet. That is the method we use.
As for the matter of fishing gear, I'm sorry, Mr. Bernier, but
I'm still convinced that I will be unable to convince you today
about the best gear to use. I challenge any user to do the same
thing. I have more than 30 years experience as a fisherman and I
fished in all sorts of places. I've been practically to the North
Pole and the South Pole. There is no one on this earth who can
claim that a particular type of gear is more destructive than
another type but people can certainly have some doubts about the
capacity of the man using this gear. The question of the user is
something that could be much more easily debated. A rifle can be
very dangerous in the hands of someone with no experience or quite
safe in the hands of a man who knows what he is doing. The same
holds true for fishing gear.
The Chair: Thank you, Mr. Gauvin.
Mr. John Cummins: I think your suggestion that you
would align with the Atlantic Fishery Industry Alliance is
a good one, because I think that if fishermen's groups
work together it will lead to a quicker resolution of
the problem. I think, as well, it prevents the
government from playing one group off against another,
so it is a valuable movement.
That being said, I was wondering if your group
has discussed the issue of accommodation with the
native groups that may wish to participate in your
fishery. If you have, in what direction would you see
that going? How would you resolve that problem within
Mr. Alyre Gauvin: I did discuss it on the phone with a
particular group, Ms. LaVallée's group. We talked about meeting to
discuss how we would take an initial approach to the matter. It is
my wish that we continue and I think that both parties are
interested in doing so.
I don't have any solution to propose today. I cannot come up
with a solution alone. This has to be done through discussion
between the two parties. I have certain ideas about the way in
which it could be done. One example would be to introduce some
rationalization in the sector by the fishermen themselves, an
approach that was supported by the federal government. People may
choose to earn their living from fishing but it also happens that
they remain because they have no other choice. They may no longer
be able to afford to leave. I'm convinced that the department could
come up with solutions for this problem.
Another thing is that there are too many back-pocket licences
in the Maritimes. There are far too many fishermen who keep their
licences in their back pocket in the hope that the situation will
improve. Should this happen, they would be ready to start fishing
again. This has a punitive effect on those who are developing the
industry, who are developing the markets and expertise. They are
being punished because they've done all this work to develop the
industry. As soon as it starts to pay off, people come and say:
"I've got my licence in my back pocket, I'm going fishing too."
That's what happened this year in the inshore fishery.
I'm sorry I can't give you precise figures. I haven't yet been
able to obtain the official figures. In the Southern Gulf, the
number of inshore fishermen went up from 86 in 1993, the year when
the cod fishery was shut down, to 586 in 1999. When the cod fishery
was shut down in 1993, there was a quota of 42,000 tons. This quota
was reduced to 12,000 tons with a price of less than 40 cents a
pound. This year we've been talking about a quota of 6,000 tons but
with a price close to a $1 a pound. It looked like it might be
lucrative. In your opinion, who are the ones that stand to lose the
most? Those who arrived in 1993 or those who made the effort to
stay in and wait until the cod came back and to tighten their belt
for six years? Who are the ones that are being the most penalized
The Minister should start by putting a stop to this type of
situation. Let him cancel these back-pocket licences, in the
groundfish fishery or for other species. Mr. Brian Tobin attempted
to do this at the beginning of the 1990s when he was Minister of
Fisheries. Unfortunately, the big bad wolf, otherwise known as
politics, made its presence felt and put an end to the practice
because of its harmful political impact. So who is footing the bill
today? The industry and those who spent time and money in order to
stay in the game.
Mr. Peter Stoffer: Thank you for your
presentation, Mr. Gauvin. I just want to make it
absolutely clear why I'm against the ITQ system. It's
not the I and the Q, it's the T. That's the part that
concerns me the most.
As you may know, on the Banks, Clearwater has seven
out of the eight scallop licences. My question to you,
or anyone else—and you don't have to answer, of
course—is how did they get those? People could say it
was through the market system and everything else, but
it's the fact that the concentration of those licences
could be by one individual or one company.
That's not my question; my question for you is on the
conservation side. Whether you're an ITQ, IQ, or
lobster fisherman, you need access to fish, and those
fish need to have habitat in order to survive.
In the gulf region, where you operate, we know oil and
gas leases are being given now to companies like Corridor
Resources off the Cabot bluff. We've seen plans
where they eventually want to start seismic drilling in
the entire gulf. If they find something, they may have
the right to actually drill in the heart of lobster and
cod spawning grounds.
Are you aware of these concerns? You said the
government should be a role player, in terms of the
But what role do you see the Province of New Brunswick,
for example, playing in alliance with P.E.I. and Nova
Scotia in working together, not only with your
organization but with other organizations, in the
Mr. Alyre Gauvin: Mr. Stoffer, before answering that question,
I'd like to come back to your concern about the ITQ. A number of
administrative rules were established for the ITQ. For example, a
rule prohibits individuals from exercising a majority control in
this area. A certain maximum is set. It is not possible to have
more than a certain number of tons for distribution to avoid anyone
taking control. If I won the 6/49 and suddenly decided I wanted to
buy everyone out, I would not be able to do so. There is a limit
that was agreed upon by the industry and the government.
To come back to your question about the provinces, I think
that the provinces should play a very important role in this area.
I think that the responsibility of the provincial governments is to
ensure some economic stability in the case of upheaval or changes
resulting from negotiations or agreements between the Aboriginals
and the traditional fishermen.
Moreover, negotiations to find a way to allow the Aboriginals
and traditional fishermen, as I call them, to find a way of living
together could take place region-by-region or province-by-province
rather than for the entire Atlantic region. The needs of the
Aboriginals and those of the traditional industry in New Brunswick
are very different from those of people in Nova Scotia, Prince
Edward Island, Newfoundland or Quebec and it's perfectly normal.
For example, in South West Nova Scotia, requirements are very
different from those in Eastern Nova Scotia, Cape Breton etc. The
same applies to New Brunswick, for those living on the Gulf as
opposed to those living on the Bay of Fundy.
I recognize it is not a small undertaking but it is something
we must do. We will have to engage in regional or local
negotiations. We may perhaps agree on certain principles that might
be applied generally throughout the Maritimes but at the outset,
the regions will have to sit down individually.
Mr. Peter Stoffer: My last question, Mr. Gauvin,
is on those back-pocket licences you referred to. In
my consultations with other fishermen across the
country, they are also aware of a lot of people who
have licences who haven't fished for years. They are
just waiting for the price to be right and then they'll
go back in, putting more pressure on the stocks.
If we were to get rid of the back-pocket licences on a
sort of use it or lose it principle, would you put a
time limit on when they'd have to use those
licences—if they don't use them within three years from
today's date they would lose them? Say you put the rule in
today that effective now, all people with fishing
licences who didn't exercise their licensed right to
fish within a year from now would lose their licences
with no compensation. Would you put a certain time
limit on that?
Mr. Alyre Gauvin: It's very difficult to set a time limit.
It's not easily done and I don't think it can be done simply
because it pleases me or someone else or it is to someone else's
Let me give you an example. This winter several groups asked
to be consulted by the Groundfish Advisory Board. When we begin our
talks about conservation, about sharing arrangements with the
Aboriginals and the groundfish, there will be around the table lots
of groups made up solely of fishermen with back-pocket licences but
the government will pay as much attention to them as those who
built up the industry and who have been working steadily year after
year to ensure adequate conservation on sound economic principles.
Conservation is a fine principle. The best conservation
measure would be simply to shut down the entire fishery for all
species in the Atlantic but we have an economy that depends on
these fisheries and we have to attempt to reconcile the two. That
is the problem we face.
Will the department simply say to these back-pocket licence
holders: “Your time is up, you won't have your licences any
longer”, or will the Minister tell them: “You are only potential
players, you are not active players; that means that you can rely
on the other groups to look after conservation, production, etc.”?
That is the type of question that we are going to have to ask
ourselves in deciding on our approach.
The Chair: Thank you, Mr. Gauvin. I don't believe
there are any further questions. We thank you for your
The committee will adjourn until 1:15. Check-out
time is not until four o'clock, so you should be okay with