STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 23, 1999

• 0903

[English]

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

As committee members know, but for the record, we're studying the implications of the September 17, 1999, Supreme Court decision on R. v. Marshall on the management of fisheries in the Atlantic region.

Our first witness today will be Arthur Bull, from the Coastal Community Network.

Arthur, welcome. I believe we have your presentation. We'd like to go through it fairly quickly, because we have only about a half an hour in total for your presentation and questions.

Mr. Arthur Bull (Chairperson, Coastal Community Network): Thank you, Mr. Chairman.

On behalf of the Coastal Community Network, I'd like to thank the committee for this opportunity to present our views this morning. We circulated a brief, but since it goes over the allotted time, I'm just going to summarize the first part of it, if I may, and then we can have some time afterwards to address some other issues.

The Coastal Community Network is an organization that has been in existence since the early 1990s, representing coastal and rural communities in Nova Scotia. We represent more than 100 organizations, and our motto is “A large voice for small communities”. As many of you know, we've been involved with coastal and fisheries issues since the early 1990s.

Our position on the issues arising from the Marshall decision is fairly straightforward. We believe the best way to address these issues is through direct dialogue between fishermen and the communities, natives and non-natives, based on mutual respect, trust and interest in our common future.

• 0905

In many ways, that position has been borne out by the events of this past fall, in the sense that other players not directly involved have not been able to play a constructive role in this crisis. I will give a few examples, thinking in particular of the media, elected representatives, and the federal government, particularly DFO.

In terms of the media, I think there is a consensus among fishermen's groups and fishermen's representatives that the media did not play a positive role in this crisis—in fact, they presented images and words that exacerbated the situation and looked for the most confrontational and volatile news to put on. They made the situation worse.

In terms of elected officials, I think there wasn't a major role for elected officials and politicians in this. Of course, in many cases, there has been quiet leadership that has brought calm and stability to the situation. At the same time, there have been examples of not-so-constructive participation in this crisis.

I will use one example: politicians and organizations from British Columbia coming to Nova Scotia at the most volatile point in this crisis and speaking to large groups in a way that was nothing less than inflammatory. We believe this was not a constructive addition to the situation. I think it is self-evident that Nova Scotia is Nova Scotia, not British Columbia.

In terms of DFO, of course, we would have expected DFO to play a major role in a crisis in the fishery of this sort. Many comments have been made about why DFO has not played a major role and has not taken its responsibility. In fact, for many rural Nova Scotians, the question has not been why isn't DFO solving the problem or how can DFO solve the problem, but rather we hope that DFO will not make this problem worse. This may seem harsh and somewhat cynical, but this has been the experience of coastal communities in Nova Scotia in terms of fisheries management.

I would like to give one example of why people feel that way. Of course it relates to the lobster fishery.

As many of you know, DFO brought in conservation measures a couple of years ago that had to do with size changes in the lobster fishery. In many areas these changes were going to have a very detrimental effect. For example, where I live in LFA 34, it would have meant a drop in income of as much as a third. In fact there was an agreement worked out through negotiation with DFO, which said, all right, let the lobster fishermen come up with an alternative conservation measure; we'll give them a chance to try, and then we'll look at the situation.

I will quote from a letter from the previous minister, David Anderson, to a fishermen's representative in LFA 34, where they were trying v-notching as an alternative conservation approach. The minister said:

If the analysis of the v-notching program in 1999 and beyond can actually demonstrate that fishers have met their commitments as submitted in your CHP, no further measures would or should be required.

The fishermen went on last year and v-notched more than 135,000 lobsters in the season and presented that about two weeks ago.

I should add that a letter went from fishermen's representatives, along with representatives of all 13 Mi'kmaq chiefs, in the middle of this crisis, saying to Minister Dhaliwal, please do not bring any regulatory changes in the middle of this crisis; it would be nothing less than inflammatory in the middle of this situation. They said, basically, stand back with those and give us a year or so to deal with this difficult situation.

What has happened is that one week before the season, which starts this coming Monday, DFO came down with the new regulatory changes and the measure increase. It is hard not to be cynical and see the timing of this as anything but exploitation and manipulation of this crisis, following the Marshall decision. I'm giving you this example to show you why fishermen's organizations and their communities have the sense that DFO would exploit this situation, rather than solve it.

• 0910

I think coastal communities in Nova Scotia—fishermen and community members—are tired of this kind of top-down manipulative management in the fisheries. We're tired of the fisheries being managed like a private fiefdom of the corporations. We're tired of the federal government bringing in policies that seem to be aimed at engineering the destruction of Nova Scotia's coastal communities.

We look to you, as elected representatives, to help us change the situation and change the way the fisheries are managed, so our communities can be both viable and sustainable.

This doesn't mean DFO doesn't have a role in this situation; they clearly do. From CCN's point of view, that role is primarily to make sure the brunt of the Marshall decision does not fall on the inshore fishery. That is to say, there need to be programs such as licence buyouts, buybacks and other financial compensation that make sure one sector doesn't carry the whole burden. So there's plenty of role for DFO.

Looking back over the fall of 1999 in this crisis, there are a few lessons to be learned. At a minimum, we can conclude that the media is usually sensationalistic; politicians, with all due respect, are sometimes opportunistic; and DFO is negligent and at times even manipulative. So what else is new, we might ask? For most of us, these are not great revelations. Corporate interests, the legal community, and a whole list of other groups haven't contributed in any positive way to the resolution of this crisis.

But however negative or unhelpful the roles of these various players have been, there is one important lesson to be learned from the events of the past several weeks, as we move into a post-Marshall future. The people centrally involved—the fishermen and their communities, both Mi'kmaq and non-native—have both the responsibility and the wherewithal to reach solutions. This has been clearly demonstrated in the solutions that have been reached in LFA 34, LFA 35 and numerous other areas in Atlantic Canada that have not been highly covered by the media.

For us, the key lesson learned so far from the post-Marshall situation is that Mi'kmaq and non-native inshore fishermen share common ground, and their elected representatives can work out positive solutions. We share common ground concerning our desire for livelihoods, viable and sustainable communities, and community stewardship of natural resources. We also share common ground in our common history. After all, we've been here in Nova Scotia together for almost 400 years. Especially in the first half of this period, the interaction of all our peoples—Acadian, Mi'kmaq, English, Scottish and others—laid the foundation of modern Nova Scotia.

Finally, we share common ground in the most literal sense because we live in this place together. Since none of us are going anywhere, our descendants will be living here together for some time to come. It's only natural that dialogue based on mutual respect should be the way we address our common issues. This process has to happen directly between native and non-native fishermen in their communities, with no lawyers, politicians, mediators, corporations, media, or DFO, just the people directly involved talking face to face.

• 0915

As the Mi'kmaq communities enter the commercial fishery, we hope they will bring with them the values that have conserved and protected Nova Scotia's natural resources for thousands of years. Many fishermen's organizations and their communities have been working to define new values to guide the fisheries in the future, particularly through community-based management in the fisheries. We need and welcome Mi'kmaq traditional values to help guide us in creating this new fishery for the future of Nova Scotia. This will require much hard work, much learning, and above all, a lot of listening.

Now that we have survived the difficult crisis of the fall of 1999, it's time to get on with this work. We believe this is the way to move forward, to take care of our fisheries for the sake of our grandchildren and their communities, for many generations to come.

I'll end there, Mr. Chairman. Again, thank you for the opportunity to appear before you.

The Chair: Thank you, Mr. Bull.

Mr. Cummins.

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

Mr. Bull, what was the impact of the original Marshall decision, in your view?

Mr. Arthur Bull: The impact on which fishery?

Mr. John Cummins: I don't think it was definitive; that's my view. What was the impact on the established fishery?

Mr. Arthur Bull: I don't think we know the full impact yet. It will take some time to actually work through. We could make assumptions. For example, in our area we made assumptions about how many boats were going to come into the lobster fishery. When we finally sat down to have a dialogue, it turned out to be six.

I guess our approach, rather than trying to prejudge it, is to engage in dialogue and try to find out what that impact will be. I'm not trying to avoid the question; it's just that I really don't know the answer, and I don't think anybody will until we can get this worked on.

Mr. John Cummins: Were you involved in the discussions, Mr. Bull?

Mr. Arthur Bull: Yes, I was.

Mr. John Cummins: For what group were you a spokesman?

Mr. Arthur Bull: I was involved with the Bay of Fundy Inshore Fishermen's Association and the Bay of Fundy Marine Resource Centre, which played a facilitating role. I would add that the Bay of Fundy Inshore Fishermen's Association has been engaged in a dialogue with representatives of the chiefs for more than two years, because there has been intensive fishing under the food fishery in our area. We have been trying to deal with that situation.

Mr. John Cummins: Is it correct that the natives said after the decision that they had a constitutional right to participate in the fishery, and everybody else was there at the discretion of the minister—they only had a privilege granted by the minister?

Mr. Arthur Bull: That may have been said. I haven't seen that specific quote. I'm not sure which native leader you are speaking about.

Mr. John Cummins: Mr. Bull, will you please detail the extremely inflammatory statements made at a mass meeting of fishermen in Yarmouth right after the decision? You attribute that to politicians and political organizers from British Columbia—one of those being me. I would ask that you now table the content of those extremely inflammatory statements, or I will ask the chairman not to accept your testimony.

Mr. Arthur Bull: I don't have the verbatim report of the speech but—

Mr. John Cummins: I suggest you get it; otherwise I will ask the chairman not to accept your testimony.

Mr. Arthur Bull: I don't have it, because no printed document of the speech was—

Mr. John Cummins: What is your recollection of that?

Mr. Arthur Bull: I was there at the event—

Mr. John Cummins: Your recollection then of those extremely—

Mr. Arthur Bull: From my recollection, there was a roomful of 800 fishermen, with a very high level of anxiety and fear about their futures, which was very justified. Essentially, people came from another province and said we should take the most polarized, confrontational approach to this.

• 0920

Essentially—this is just an opinion, and the committee can accept it or not—from where many people sat, it was the equivalent of saying the word “fire” in a theatre.

Mr. John Cummins: What was the most polarized approach, Mr. Bull?

Mr. Arthur Bull: The approach seemed to be this: you fisherman are going to lose everything and your futures are at stake here. In fact, rather than saying let's sort out what this is about, that was the basis for moving forward.

Mr. John Cummins: What were the recommendations that were made by the people of British Columbia?

Mr. Arthur Bull: The recommendations seemed to be to take a confrontational approach to the issue.

Mr. John Cummins: What is a confrontational approach, Mr. Bull?

The Chair: I wonder—

Mr. John Cummins: Please allow me to continue on this, Mr. Chairman.

The Chair: I don't want to go too far down this path, John. I can understand that if there have been points made as to what was said at a public meeting, you want to get that clarified. That's fine, but I don't want to be on this path for too long.

Mr. John Cummins: You're not. But give me a couple of points here.

The Chair: Okay.

Mr. Arthur Bull: I don't have the exact wording of what was said. I am talking more about the general way the meeting was addressed. As I say, I don't have the actual quotes.

Mr. John Cummins: I would suggest, Mr. Bull, that you're not a very clear thinker and that you weren't paying attention, because the fact of the matter is that the recommendation—

Mr. Lawrence D. O'Brien (Labrador, Lib.): Mr. Chairman, point of order—

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Mr. Chairman, on a point of order—

The Chair: Mr. Stoffer.

Mr. Peter Stoffer: —to indicate his ability to think or not to think is another thing. If Mr. Cummins has a personal problem with the individual, that's fine, but to make rhetoric saying he is not a clear thinker is out of order, Mr. Chair, and you should rule on that. We are not here to chastise witnesses. We are here to get their evidence—whether we agree or not.

The Chair: Point accepted.

John, point of clarification.

Mr. John Cummins: Mr. Chair, there are in this document some incorrect allegations about statements I made. I was trying to get Mr. Bull to clarify what those statements are, and he seems unable to do that. The fact of the matter is, the recommendation that was made—that I made at that meeting—was that the fishermen ask their organization to seek a stay of judgment and a rehearing to clarify the intent and the meaning of the decision.

In fact that's what has happened. On the November 17 decision of the court, when it rejected the West Nova Fishermen's Coalition application, it did in fact grant that rehearing, because it clarified those issues that had been raised by the West Nova Fishermen's Coalition, which has had a calming effect. My address to the group at that time was based on those two points. I can provide you, Mr. Chairman, with the substance of my address at that point.

The Chair: Those points are on the record. Certainly people can look at the record to see the different points of view of Mr. Cummins and Mr. Bull.

Mr. John Cummins: It's not a matter of points of view, Mr. Chairman. It's a matter of statement of fact.

The Chair: It's on the record and you have stated that.

Mr. Bernier.

[Translation]

Mr. Ivan Bernier (Bonaventure—Gaspé—Îles-de-la- Madeleine—Pabok, BQ): First of all, I want to thank the witness. Having experienced similar crises in my area, I know it's not easy to come here to talk about events which have made passions run high. I am from Gaspé. I know you always have to handle things with kid gloves. I understand what you mean when you talk about the situation being volatile.

I don't want to put anyone in the dock, nor play down anything. Rather, I'd like to see whether we could learn from what happened and find a solution to the problem. First, I'm going to make a comment and then, I invite the witness to join me to try and find a solution.

• 0925

In the document, it says that fishermen's groups decided to have a direct dialogue with native groups. I believe it's a very responsible approach when two communities, natives and non-natives, have to live together.

On the legal side, the problem is that the native community is a nation. I discussed it with some chiefs. They think the final dialogue has to be between nations. So they will always have to deal with the person who is empowered to sign on behalf of the non- native community, which is the fishermen's group, and this person can only be the Fisheries Minister or the Prime Minister, that is Jean Chrétien.

The question I want to ask the witness deals with a recommendation brought forward by the previous Standing Committee on Fisheries, which was then chaired by George Baker, in a report on the East Coast. I don't know if the Committee heard the witness at that time, but recommendation 19 was that the management and issuing of the Total Allowable Catch had to be reviewed. This recommendation was unanimously supported by all parties represented here today.

From a client point of view, couldn't we say that the native crisis gives us the opportunity to realize that we don't have the right management tools, that decision-making is not close enough to the population and that we should take advantage of what we experience now to learn a lesson? How could we legislate on that? How could we encourage people, in their everyday life, to use the way the fishermen act right now with the native people has a model? It could also be used to solve all kinds of other problems in the fishery.

Since I got involved in the fisheries issue, each season, there is a problem somewhere. If people don't get mad at their brother, they get mad at their brother-in-law; there is always something that goes wrong. Could the witness comment on that or give us an answer?

[English]

Mr. Arthur Bull: Sure. I'd be glad to. I have a couple of points in response.

One, in terms of coming to an agreement, our sense has been in fact that there won't be a single grand agreement at some high level. In fact, the first nations don't have a single representative and the fishermen do not have a single representative; they are not going to sit down at the table and sign something. In fact, the first nations are just as diverse as the non-native fisheries, and in our view, there will probably be a lot of different agreements and accommodations to this.

Just to underline that, for example, in the development of their management plans since Marshall has come down, the Mi'kmaq leadership has in fact gone to area management, which is something very close to community-based management. The bands in a particular area would be responsible for the stewardship and management in that area. So again, we're looking at a bottom-up approach, not some grand negotiation, and certainly not another treaty—let's hope not—but rather something at the grassroots level.

The second point about the TACs as a general point is an interesting one, I think, because it points to the opportunity that comes from the Marshall decision for us to rethink the fisheries altogether. I think there's a general consensus that things are not well in the fisheries and that management is not well in the fisheries. This gives us an opportunity to reassess the way our fisheries are configured in Atlantic Canada. As a general point, I think that's very much an important point to make: we need to look not just at TACs and allocation but at the whole way in which fisheries are managed.

The Chair: Mr. O'Brien.

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

I want to thank you, Mr. Bull, for your forthright comments this morning. I think you've put a lot of thought and consideration into your presentation. Certainly in the light of dialogue and cooperation and working on the various agreements that you have, this is what we need, I believe, to try to put some resolutions to these sorts of issues. With that, I thank you.

• 0930

I'm the parliamentary secretary. From a government perspective, I'd just like to ask you if you concur with this course. How do you see the role of our federal representatives, Mr. MacKenzie and Mr. Gilles Thériault? Have you interfaced in any way with these gentlemen? And what would you offer to us from your perspective so that we could possibly use your information to help advance the situation?

Mr. Arthur Bull: In terms of the federal representatives, Mr. MacKenzie and Mr. Thériault, I'm sure there is an important role that they can play in terms of some of the fisheries that require mediation in a sense. Again, I guess our point is that if you're really engaged in dialogue, you don't require a mediator from Ottawa. If you do require a mediator from Ottawa to talk about somebody who lives in the same county, you probably have some difficulty.

I wouldn't go so far as to say they have no role. I think there clearly are some major issues to be worked out at that level. Personally, I'm not clear about what they are, but I think it's important that they be supported in what they're doing. I just don't think it applies to the local discussions that I think are going to be key in the long run.

In terms of the role of the federal representatives, I think there really are some positive roles to be played. This committee has played a positive role already just by being here and listening. There's been not enough listening, and the fact that you're here in Halifax speaks very well to that fact.

As I mentioned before, they're needed to support any initiatives to make sure the brunt of this doesn't fall on the inshore fishermen and the communities that they're the very backbone of. Also, supporting the work that's being done now to develop new approaches to the fisheries—whether native or non-native, and in terms of developing joint initiatives and community-based initiatives—is going to require resources. It can't be done on volunteer time. There's a huge amount of work that needs to be done, and to support that would be a really important role for the federal government. Therefore, the federal representatives need to push for that, if that makes any sense.

Mr. Lawrence O'Brien: Thank you very much.

The Chair: Mr. Muise.

Mr. Mark Muise (West Nova, PC): Thank you, Mr. Chairman.

Thank you for coming today, Mr. Bull.

Having lived through the crisis that I and many other people in our part of the country have experienced, you know full well how tense a situation it was. I think everyone wants to see a peaceful and calm resolution to these problems.

I had a couple of questions, but you've answered some of them, specifically the one about the fishery's concern about the increase in carapace size.

In your comments, you make one comment that I'd like you to maybe elaborate a little bit on: “DFO is negligent and even at times manipulative.” Could you tell us maybe how you see that coming through?

Mr. Arthur Bull: I will come back to the example I used before of the regulatory changes in the lobster fishery. To bring these changes in a week before the season, in the middle of this crisis, is clearly exploiting the situation. That is doing it at a time when they know fishermen will not be able to respond to it. They know there's no support for this, and people don't think they're actually conservation measures. The timing of it doesn't speak well for a cooperative kind of partnership approach at all.

I have to say this is not exceptional. It has been the norm. This is what we're used to in fisheries management, and that's this top-down, manipulative approach, whether it has been through the introduction of ITQs or a whole other range of initiatives that have hurt the inshore fishery.

The Chair: Thank you.

On that point, Mark, isn't it true, Arthur, that this proposed carapace size increase was agreed to by all players in about March or April 1998, as part of the five-year plan for increasing egg production? The intent of the minister at the time was a doubling of egg production. In my own area, we agreed to a five-year plan. Carapace size increases were at the front end and they were a big problem, but this was accepted by the industry. Did the same thing not happen in the area you are talking about?

• 0935

Mr. Arthur Bull: I think this actually did play out differently throughout the different LFA areas. In our area there was a lot of question about that. In fact there was a negotiation in which the fishermen said to try another approach that is successful in Maine, and we went ahead and did it. There was a negotiated agreement. To be fair, there was a dialogue. The minister at the time said to go ahead and try this approach, and that DFO would evaluate it. If we went ahead and did it, it was supposed to be okay. It was in January 1999 that they made that agreement. In November 1999, they completely turned around and said they were bringing in the measures.

The Chair: Sorry, Mr. Muise, I will not steal your time. Go ahead.

Mr. Mark Muise: Thank you, Mr. Chairman.

Mr. Bull, another thing that came up throughout this whole discussion about the Supreme Court decision was the Minister of Indian Affairs and Northern Development misrepresenting or misunderstanding—for lack of a better word—the ruling. He made some comments that put a lot of fear into sectors other than fishing. Seeing how that has taken place, do you think that minister has a role in the ongoing negotiations that are taking place?

Mr. Arthur Bull: I have to say first of all that I don't know the ins and outs of exactly what the minister said and so forth, but it seems to me that he wouldn't have a direct role. Again, you have somebody distant from the situation saying things that are basically top-down pronouncements. It seems to me there are some serious questions about that. I wouldn't think he would have a role in the kind of dialogue we're talking about.

Mr. Mark Muise: Okay, thank you.

The Chair: Mr. Stoffer.

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

Mr. Bull, you referred to some letters that were written to Minister Anderson at the time, and then to Mr. Dhaliwal. Just for the record, we were wondering if it's possible to get copies of those letters for our committee later on, at your convenience.

Mr. Arthur Bull: Yes, that would be no problem. I copies here, so I will make sure the committee gets them. They're co-signed by fishermen's representatives and the chair of the Mi'kmaq Fisheries and Wildlife Commission.

Mr. Peter Stoffer: Thank you.

I appreciated your comments in the report that you presented on behalf of the organization. I was especially keyed in when you spoke about the brunt of the decision and who should bear that so-called brunt of the decision. I agree. You are right that everybody, including the corporate sector, the inshore sector, the aboriginal people themselves, the province, and the federal government, must play an active role in a constructive dialogue in order to come up with a long-term future, not only in the lobster fishery but in other fisheries as well. I appreciated your comments on that.

As you know, there are approximately 6,300 licences for lobsters in the maritime region. Based on my talks with them, I'd say that one thing that drives lobster fishermen absolutely crazy, especially the independent ones, and really the last great independent fishery we have left, is the fact that the government may—I'm not saying it will, but it may—through DFO, implement the strategy of ITQs, the individual transferable quota systems, on lobsters. If it attempts to do that, I know there are many lobster fishermen out there who will be absolutely wild.

Do you support an ITQ system on lobsters? If so, why? If not, why not?

Mr. Arthur Bull: The organizations we represent do not support ITQs, nor do we support a TAC in lobsters. When you look at the fisheries across the board in general, the lobster fishery is a healthy fishery. It is a fishery without a TAC. It is based on effort, control, and how, when and where fishing happens.

• 0940

Many people believe DFO would like to bring a TAC into that in order to manage it by numbers. At the same time, many people are afraid this would lead to privatization of that fishery, the way it has in almost every other ITQ fishery. There is a great deal of fear, and this goes to the earlier question about manipulation. People are afraid DFO would in fact use this situation to further its own agenda of bringing in a TAC on lobster, and would then in fact privatize that, as has happened with groundfish, herring, scallops and pretty well every other species.

Mr. Peter Stoffer: I appreciate the fact that you pointed out that for the area-level DFO people, the people who are on the ground and work with the organizations, you supported their efforts and the fact that they understand the issues. But obviously those above them, the regional people of DFO and those in the minister's department, are not getting the message.

Have you had any dialogue at all with Mr. Bellefontaine, the regional direction of DFO, or his people here in Halifax in terms of the Marshall decision? If there is any written documentation between the two of you, is it at all possible to have access to that? Has the dialogue been favourable in terms of trying to ease the tensions that are on the water?

Mr. Arthur Bull: First of all, I will just reiterate the point that is in the written brief but which I didn't say. The work done by DFO at the regional level and area level was very professional, and it really should be credited with actually easing the situation. Above that, we have not had any dialogue with DFO management in Halifax or Ottawa. In fact there was really a long period during the crisis when there was complete silence from senior management in DFO, so I have nothing written from that level.

Mr. Peter Stoffer: Thank you.

The Chair: Thank you, Mr. Bull. We'll have to conclude your presentation here. I know there are other questioners, but we're out of time at this point.

The next witnesses are MLAs, and one is the NDP fisheries critic, Mr. MacDonnell. He's here along with Mr. Kevin Deveaux.

We have about half an hour, gentlemen. If you could keep your presentation short, it will open up more opportunity for questions.

Mr. John MacDonnell (Member for Hants East, Legislative Assembly of Nova Scotia; Fisheries Critic, Nova Scotia New Democratic Party): Thank you very much, and good morning, gentlemen.

First and foremost, regarding the Marshall decision, I'm assuming you would like comments as to the clarity of it as well, but I think some positive things have come as a result of the decision. I also think it has probably taken a while for people to believe that. Certainly the whole issue around the availability of resources for native people has to be dealt with at some point, and certainly this decision has caused people to sit down to talk about it, if nothing else.

In my constituency of Hants East, there is one reserve, the Indian Brook Reserve. I have had a fairly close association with people on that reserve for a number of years, particular because I was a school teacher for fifteen years and had a number of students from that community. A couple of weeks ago, when I attended a function at the reserve and spoke to one of my former students, I noticed that his reaction was that there is a difference in the people there because of the Marshall decision. They have optimism for the future, and he can see it in the community overall. That alone is certainly a positive aspect of the decision.

I believe this is a resource that unfortunately had to go to the courts in order for us to get some type of decision on it, and I certainly would encourage governments to sit down to talk with the native community in order to try to resolve this without going through the courts. If it turns out the courts are the way they have to go, then governments have to be willing to accept the decisions that come from the courts.

• 0945

Because of the wording of the decision, although it stated that it was a limited right, there wasn't enough clarity for people to know in negotiation where to go with that, and I think that caused a lot of anxiety among the non-native fishing community, which was evidenced in the news reports and actions we saw as a result.

The benefit has been that clearer heads have prevailed and people have sat down, and I think it speaks well for both communities, for those communities where people have done that and have resolved those issues specific to their communities. My fear is that there has been no back-up plan in case that failed. I don't see one even as yet in communities where negotiations really haven't gone that far or haven't worked yet. I caution the government that it should intervene in a much more proactive way to facilitate these communities to come to some resolution.

It's great when it works. People come together without politicians and they can iron out a solution. Everybody will say, wasn't that a wonderful thing, hoping in the back of their minds that all negotiations go that way. But with no plan, if they don't go that way, it could cause some serious problems, and we have seen some indication of that.

As a role for the federal Department of Fisheries, conservation is obviously a paramount consideration for both communities. You can't take more of the resource than what you can sustain. The good thing about renewable resources, biological resources, is that they can copulate and reproduce more organisms that you can harvest. That is a wonderful thing; the only thing is that in most cases you require at least two for that to happen. Once you leave one individual, you are kind of out of the game. It's not like Sable gas. When it's gone, it's gone.

So there is a great advantage in renewable, sustainable resources. It's the government's responsibility to ensure that accessibility is there for the native community, and if that means buying licences from fishermen who want to get out of the industry and making those available, I think that would be a good first move on the part of the federal government.

I will turn over any existing time to my colleague Kevin Deveaux.

Mr. Kevin Deveaux (Individual Presentation): Thank you, Mr. Chairman.

I am the MLA for Cole Harbour—Eastern Passage, on the outskirts of Dartmouth. It is a riding that is both a small satellite native reserve—a satellite of Millbrook—and a thriving lobster fishery. So I have had an opportunity to see both the pros and cons of the Marshall decision.

From my perspective, when I knew I was going to be coming here, I said if there was one thing I wanted to leave you with, it was that this did not have to be as complicated as it was. Excuse me if I am being naive, but I truly believe the confusion over this whole issue is because of inaction on the part of the DFO. For whatever reason, they were unable or unwilling to come forward with clear regulation, which clearly the Marshall decision said they could do. This left the fishermen and the natives in a situation where they were forced to fend for themselves.

What we need more than anything else is clear direction from DFO as to the regulations on how we are going to conserve the fishery, lobster being one and probably the most lucrative, but there are others as well. That is particularly what I want to say.

I think part of that is a lobster licence buyback program. I think it's an effective start to the procedure. It allows for some of the fishermen to leave through attrition, to be paid, and in turn, transfer those licences over so that we will not have an increase in the aggregate number of licences, presumably, but a situation where those licences will be spread amongst both natives and non-natives.

Those are the two things I particularly want to note. The only other thing I would say is that in the grander scheme of things—and this committee is obviously looking at the Marshall decision—this is a symptom of a bigger problem, a problem that is across Canada: the role of natives in our society and how we interact and work with them.

• 0950

We have seen some negotiations in other parts of the country, where there has been some success at trying to find a more holistic approach to our dealings with native communities. What has happened in Atlantic Canada is the Marshall decision, and maybe this was the Supreme Court's way of dealing with it, but that has been put on the front burner.

If you have in your mandate the opportunity to suggest to the government, then I would suggest that you tell them that this is an opportunity to look at a broader negotiation with natives in an attempt to solve all those other issues, whether that be logging, hunting in certain areas, the fishery, and so on. But let us not look at the Marshall decision in a very myopic way and only deal with it to a certain extent, with regard to the fishery. Let's use it as an opportunity to resolve all those problems that have been around for a long period of time.

The Chair: Thank you, gentlemen.

At the most, we have 15 minutes for questioning. Turning to Mr. Duncan, can we keep it short and concise?

Mr. John Duncan (Vancouver Island North, Ref.): Good morning. I have just one question.

I assume you are both from the same party?

Mr. Kevin Deveaux: Yes.

Mr. John MacDonnell: Yes.

Mr. John Duncan: Six days ago, when the clarification came down on the Marshall decision, one of the provisions the Supreme Court had in there was that they would entertain argument upon whether they would grant a stay if that argument were to come from the AG of Canada or New Brunswick as an intervener. There are lots of loose ends yet and big questions, such as status, non-status, and that kind of thing. Is your party requesting that your government make that request for a stay?

Mr. John MacDonnell: No, we are not requesting a stay. Actually, I would think our position would be opposed to a stay.

If you look at the timeline and the energies in both parties making their cases, we certainly don't take the decision by the Supreme Court of Canada lightly. It has to be question of, if it goes against what non-natives would see as the proper decision, then, gee, let's have a stay of it, and if it goes to what they would agree with, let's keep it. I don't think you can play that way with the decisions of the Supreme Court.

Mr. John Duncan: Kevin, if I might intervene, when the West Nova intervention or request for rehearing occurred, they asked a lot of questions in association with that. Would you do the same thing in requesting a stay in order to get clarification on certain issues? My opinion is that the court is actually asking for that and they want it, because even if they deny the stay, they can answer those questions.

So I don't think it has to be that you're taking a position that is anti-native by suggesting that you're asking for a stay. That doesn't follow. At least for me, it doesn't follow at all.

Mr. John MacDonnell: Right.

Mr. John Duncan: It could actually smooth the path, very much so.

Mr. Kevin Deveaux: If I can add there, though, and I think I said this in my earlier statement, what's interesting is that the Marshall decision is something on which, just from my own observations, I think the Supreme Court has been leaning towards trying to push the government to act, whether it be in earlier decisions....

I think what happened with Marshall is that they finally said, enough is enough; we're going to force your hand in a way we haven't in the past. To go back to that court and ask if it can please stay this decision when clearly it is sending the signal that, no, the government isn't doing what it should anyway and it should be acting—I don't think you're going to find a very receptive court in the first place. In the second place, it's a very rare circumstance that the court will stay its decision. In the third place, it's the government's job—and it said this—to regulate this fishery in a way that reflects both native and non-native rights.

So my position is, get at it, and let's not worry about staying a decision that clearly has already been interpreted.

• 0955

[Translation]

Mr. Yvan Bernier: The question I'd like to ask you is at the same time simple and complex. You both are looking for a way to avoid the type of incidents which happened this fall. I asked the previous witness whether he knew that the Committee which was sitting before us had asked, in recommendation 19 of its report, that the Canadian government review its management of the fisheries as well as the process used to issue and publish the Total Allowable Catch.

Here is my question, gentlemen. Don't you think it's time we should try and learn from what happened... As I understand, people blame the government for its lack of real knowledge of the situation. Don't you think it's time to do something about that? In that case, do people in your party feel this would be the right course to follow and that we should try to find a way to deal with the government of Nova Scotia? The Committee can make recommendations to the House. As far as the Minister is concerned, he has to negotiate with the provinces. This is why I throw that line to you, gentlemen.

[English]

Mr. John MacDonnell: I certainly agree that the federal government should review any aspects of the fishery across the country. On the east coast, I would say the fishery here has not been managed well by the federal government. But definitely I would encourage you as a committee to pursue the provincial government.

We have tried to encourage the provincial government to become more active, to take a more active role in its talks with the federal government to try to broker agreements, in this regard with the native community, but just in general for fishing communities as a whole in this province. We see boats tied up, and the fleet offshore is bringing in fish. So there would appear to be a lack of sense in how the fishery is run in this country.

So yes, for sure, if you as a committee have more levers than we do as opposition, by all means use them, and send some our way as well if you can. I agree.

The Chair: Mr. Assadourian, very briefly, if you can.

Mr. Sarkis Assadourian (Brampton Centre, Lib.): If we reach agreement on this issue, what kind of agreement do you envision: provincial agreements one by one, or lobster for everybody in that region, or community-based agreement, as was mentioned earlier? What kind of agreement should we try to achieve here?

Mr. John MacDonnell: Because of the complexity of the issue.... The treaty was basically signed with the native community in a general way.

Mr. Sarkis Assadourian: Covering the whole of the Maritimes.

Mr. John MacDonnell: Well, I will only speak to Nova Scotia. I would say that because of the way the conservation methods have been devised, sectioning off various parts of the province so that you have a season that runs here but not there and so on, that still should have to be the case. The agreements would have to be for whatever native communities fish in those particular areas. Wherever they get their licence to fish in a certain area, they'd have to abide by the conservation rules and seasons for that area.

You'd have to take the standard that's been set up so far and allow for access to a particular area by various natives in particular communities to fish only in that one area or this one area. But certainly they'd have to go wherever their licence would allow them.

Mr. Sarkis Assadourian: So you'd end up having 15, 20, or 25 agreements, basically. Is that what you're saying?

Mr. John MacDonnell: I don't know if it would necessarily have to be an agreement, but the agreements would only give accessibility to a licence, and the licence would determine where you would fish. So in that sense, you may call it a number of agreements if that seems the simplest way, but I'd be more concerned about the particular licence.

• 1000

Mr. Sarkis Assadourian: Can I ask one more short question?

The Chair: Very short.

Mr. Sarkis Assadourian: Wouldn't it create division among the communities if you had 15 different agreements: “Mine is better than yours; you have to compete with mine to increase your catch” or whatever? That would create more problems as we go into the next century.

Mr. John MacDonnell: Well, it may. There's nothing simple about any of this, and there may be contentious issues right now in the non-native community alone, let alone considering the natives added in there. For the most part, they seem to have been able to come up with a system that works with the least amount of friction. So I would say you're going to add a native component to a system that may already have friction because of how it's set up.

Examining this and allowing the native community to fish may iron out some of these things that people have not really stood back and examined for a long period of time anyway. But certainly I don't see that they're actually going to cause the system to be much worse than it is.

Mr. Kevin Deveaux: Could I add to that for one second, Mr. Chairman?

You have a situation now where across Atlantic Canada and the Maritimes, based on conservation, which again has to be the primary goal here, you have.... For example, the area I represent has in theory a six-month lobster season, from the end of November to the end of May. In other areas it's only a matter of weeks. So there already is some differentiation based on conservation. You have to reflect that in what you're going to be doing in any negotiations involving the natives.

The Chair: Mr. Stoffer.

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

I thank my colleagues from the legislature here for their presentation. As they know, they've asked us to work together to come up with recommendations to give to the Department of Fisheries and Oceans and hopefully to come up with some solutions or recommendations that will assist everybody. But they also realize that the government also has the option of completely ignoring our recommendations, of just tossing them away. We have eight unanimous reports from this committee that have been generally ignored by the government of the day.

Having said that, being provincial representatives, what role, besides what you've already stated, do you think the province can play, along with New Brunswick and P.E.I., for example, in the maritime region, in working together cooperatively in order to force the government to adhere to recommendations that are reasonable, based on good evidence, and based on fairness?

The Chair: Before you answer, Peter, in the seal report, the government pretty well agreed with us, which was quite a turnaround.

Mr. Peter Stoffer: That wasn't a unanimous report, by the way.

Mr. John MacDonnell: I have to be quite candid with you if my answer is going to be worth anything to you at all. I'm not impressed with what the provincial government does, at least in our most recent history, in pursuing the federal government. I'm not at all enthused.

I would say if you want to cause any action, or for the federal government to pay attention to anybody, you have to go to those fishing communities and get a voice or a scream coming from those communities that goes all the way to Ottawa. That to me seems to be the only thing the federal government will listen to at all, if it will listen.

By all means, encourage the provincial government in every way, and we try to do that as well. But repeatedly we hear, “This is a federal issue. Our hands are tied.” I have to admit I'm pretty frustrated by that. But if you can echo the impact of how the fishery is managed and what that does to communities in this province, and if anybody in the federal government picks up on that, then you'll have gained something. Otherwise....

Mr. Kevin Deveaux: If I can, I'll take a moment to add something, Mr. Chairman.

What we've had in Nova Scotia and in the Maritimes is a history of being unwilling to stand up to the federal government and tell them they're not doing things properly. Some would argue that's been the problem with how our fishery has been managed—they haven't been willing to take their fair share of their power and say “We believe you should be doing it differently.”

• 1005

I think if you are asking me whether that is going to change, I haven't seen anything from this provincial government to make me believe they are going to start getting a backbone. I hope they do, and I guess it is our job to try to push them to the point where they are going to be willing to do what should be done for the people of Nova Scotia.

The Chair: Mr. Matthews, this is the last question.

Mr. Bill Matthews (Burin—St. George's, Lib.): Thank you, Mr. Chairman. I would like to thank both gentlemen for appearing.

I have a question for Mr. Deveaux. The general consensus that has emerged seems to be that negotiation and consultation is the way to go to resolve this very complex issue.

We all know the lobster fisheries are fully subscribed and there has been a fair degree of debate about voluntary licence buyouts, some kind of a monetary method to get people out of the fishery to allow new entrants. But the policy basically of DFO and government since 1995-96 has been to reduce capacity.

Have you done any thinking or have there been any discussions, say, in your area as to how a resolution can be found based upon a fully subscribed fishery already and a policy direction that seems to be to reduce capacity? How are we ever going to deal with this very complex problem to find a solution? Have you thought about that or has anyone made any suggestions?

Mr. Kevin Deveaux: I think that's a very good question. So that I may be clear, I think what you are asking, Mr. Matthews, is this: We already have a fully subscribed lobster fishery. To bring in the natives and buy back some licences and give them to them, we will still have a fully subscribed fishery, so how do we at the same time move to reduce the number of licences?

Mr. Bill Matthews: That is correct. That's the question.

Mr. Kevin Deveaux: The easy answer is you buy back more licences than you give to the natives as part of the negotiation process. I don't think it's that easy, though. I do not intend to sit here and tell you that is easy to do. But the fact is that through consultation, through negotiation, and through the government's legitimate power to regulate, I think they can find a solution that can result in both reflecting their policy of reduction of capacity while reflecting the fact that the non-natives have a right, based on the Marshall decision, to be part of the lobster fishery and other fisheries.

Having worked in government before I was elected, I used to do policy analysis for the provincial government. I have always believed that if government has the will to take the lead and do what is right, and in this case, if the government believes reduction in the number of licences is proper, plus reflecting the right of the natives to be part of the fishery, it can be done, but the fact is they have to start leading.

The Chair: Thank you, gentlemen. We will have to move on.

The next witnesses are William Moreira and Michelle Higgins as individuals. Welcome. You have a fairly extensive presentation. We only have half an hour. So if you can perhaps highlight it, we will have a little more time for questions.

Mr. William Moreira (Individual presentation): Yes, I shall.

The Chair: Mr. Moreira and Ms. Higgins, welcome.

Mr. William Moreira: Thank you very much. It is a pleasure to be here.

I would like to introduce Michelle Higgins. She is an associate with my firm and provided the brains and most of the hard work behind the motion for the rehearing of the case in the Supreme Court. Hopefully, she will be here to provide detailed answers the committee may desire that would take me time to find.

I did file a brief. I left it outside with the clerk of the committee. I shall only highlight it in my oral remarks this morning. I do urge the committee to consider it and I thank you for your consideration of it.

I am also not sure, before I begin, if the committee is aware of or saw last Friday's edition of the Halifax newspaper in which the editorial cartoon concerned the Marshall decision. I have brought copies with me to leave with the committee and I hope it will be of some interest to you.

The Chair: The clerk will take them. Thank you.

Mr. William Moreira: Lastly, Mr. Chairman, by way of introduction, I was chastised last week in the Supreme Court's second Marshall decision for having addressed political arguments to the Supreme Court of Canada, and it is a pleasure to be in a forum where, as I trust, political arguments are more welcome perhaps than in the Supreme Court.

The Chair: We have even had politicians chastised here this morning, and they did some chastising back. So that is fair.

Mr. William Moreira: There are three themes, members, that run through the brief I filed, and I shall try to highlight them briefly, if I may.

The first theme is that the right as clarified last week is a right of access to existing fisheries; secondly, that regulatory control of the right must be achieved through binding regulation and not through non-binding policies; and lastly, that in the accommodation of that right it is essential that the interests of non-aboriginals and non-aboriginal fishing communities be respected.

• 1010

As to the right being a right of access, the court, in what I call Marshall number two, which is the November 17 decision, at paragraph 38, made what I suggest is an unequivocal statement:

The Mi'kmaq treaty right to participate in the largely unregulated commercial fishery of 1760 has evolved into a treaty right to participate in the largely regulated commercial fishery of the 1990s.

The right therefore is a right of participation, not a right to be free of regulation in the conduct of the fishery once access to any existing commercial fishery has been obtained.

I suggest this approach to the technical problem, the nature and scope of the right, is consistent with the earlier decision of the Supreme Court in Mitchell v. Peguis Indian Band, a decision in 1990 only three weeks after the Marshall case, in which Mr. Justice LaForest said:

I have no doubt that Indians are very much aware that ordinary commercial dealings constitute affairs of life that do not fall to be governed by their treaties or the Indian Act.

In our context this morning I underline the reference to treaties.

Justice LaForest continues:

Thus I take it that Indians, when engaging in the cut and thrust of business dealings in the commercial mainstream are under no illusions that they can expect to compete from a position of privilege with respect to their fellow Canadians.

So I suggest, members, that once access to the fishery has been obtained, all of the normal regulatory rules that govern that fishery apply and are enforceable without risk of infringement of the treaty right.

In making that comment, I do not mean to be heard or intend to be heard to suggest absolute rules that accommodate no exception. There is no doubt that, given the complexity and diversity of commercial fishing in Atlantic Canada, some recognition of the conduct of aboriginal fishing under the treaty right may have to be made in some circumstances. But I suggest that as a matter of general approach, each commercial fishery, as defined both by geographic area and by species, should be considered a single industry and be regulated on the basis of common rules that apply to all participants, whether aboriginal or non-aboriginal.

In my brief I suggested there are a number of advantages that accrue to participants, to regulators, and to enforcers if this model is accepted. Those advantages include a single set of operational rules that apply to each fishery, with resulting simplification of the legal and regulatory regime; no perception of unequal or preferential treatment of any participant in the fishery; market stability and predictability; equal and consistent application of conservation measures, whatever technique is used in that fishery to enhance conservation; the availability of a single fishery-specific composite structure in which all participants, aboriginal and non-aboriginal, are represented and can be effectively heard; and last but by no means least important, avoidance of the legal and commercial controversies that were experienced on the west coast in connection with the so-called separate, native-only commercial fisheries. I shall return to that thought at the conclusion of these remarks.

As to the making of regulations to accommodate the treaty right of access, the court insisted in both the Marshall decisions, paragraph 64 of the first decision and paragraph 33 of the second decision, that licensing criteria that govern access to fisheries under the treaty right must be set out in binding regulation, that the publication of policy, to which the minister has discretion to approve exception, is not good enough.

There do exist, however, present published policy guidelines that apply to all commercial fisheries licensing in the Atlantic provinces. Those are contained in a book titled Commercial Fisheries Licensing Policy for Eastern Canada, 1996, with which I am sure members of the committee will be familiar. In my brief I set out in detail extracts from that policy that provide preferential access rules in favour of aboriginal persons and that, I suggest in my brief, in substance accommodate the treaty right of access that the Supreme Court has identified and defined in the two Marshall decisions.

• 1015

By way of aside, members of the committee, that policy was filed with the Supreme Court of Canada for purposes of the Marshall case, but my client had argued that given the accommodation of aboriginal access that is found in it, Mr. Marshall's treaty right, if it existed, was not infringed. The court obviously did not so decide. But what is important, I submit, is that the reason for the unfavourable decision was not that the substance of the policy was insufficient, but that the guidelines to the minister were not embodied in binding regulation. Although one has to be careful, obviously, to read a great deal into the silence of the Supreme Court, I submit that the court, by focusing on the non-binding nature of the policy, gives some degree of comfort that the department had it right in the 1996 policy. It just didn't embody the principles in the correct regulatory vehicle.

In my brief I submit, as I understand others have submitted to this committee, that what is required in light of the Marshall decision is a single set of binding regulations that govern access to the fishery by all participants, aboriginal and non-aboriginal. Doing so, we submit, both accommodates and respects the existence of the treaty right and provides the necessary balance that the court said was appropriate with the interest of non-aboriginals. Reinstating, if I may so call it, certainty and binding law into the licensing regime, I suggest, is favourable to both non-aboriginal and aboriginal participants alike and therefore is the preferred way to go.

Others have suggested, and there has been discussion this morning, of a so-called buyback scheme as a method of accelerating the growth of aboriginal participation in the Atlantic Canadian lobster fisheries. The existing policy would accommodate such a scheme if the substance of that policy were imported into binding regulations. A similar accommodation would exist, because one of the important things that those existing rules accomplish is to exempt aboriginal people from what would otherwise be eligibility criteria to be transferees of fishing licences.

In the context of a buyback scheme, though, I wish to highlight what I describe in my brief as two important and overriding cautions.

First, as Mr. Matthews said just a moment ago, Atlantic Canadian commercial fisheries are already fully subscribed, if not overexploited, and one of the purposes in the 1996 policy is indeed said to be capacity reduction. It is clear—and I take a little of the committee's time to state the obvious—that there can be no creation of additional licences to accommodate Mi'kmaq fishing under the treaty right. To do so would be environmentally and economically irresponsible.

Secondly, and more particularly focused on the notion of buybacks, there is concern that a government-funded licence acquisition scheme will naturally drive up the value of existing licences, making it financially even more difficult than it currently is for young non-aboriginal people who aspire to careers in the fishery to acquire the necessary licences through purchases. The purchase of existing licences for transfer to aboriginal communities, if it happens, must be both gradual and evenly distributed geographically and by species to avoid, or at worst to minimize, this negative, in my submission, effect on the value of existing licences.

Lastly, members of the committee, I would like to refer to and emphasize paragraph 41 of the second Marshall decision in which the courts re-emphasized that respect for the interests of non-natives is entirely legitimate “in the right circumstances”. I would like to suggest, and urge the committee to recommend to the government, that there can be no more clearly “right” circumstances for the respect of those interests than the circumstances of 1,300 coastal communities in the Atlantic provinces and Quebec for which fishing is said to be the “social and economic foundation”, and most of which have “single-sector economies dependent on the inshore fishery”. Those quotes were taken, members of the committee, from a report of your counterpart committee in the Senate published in 1993.

The balance of interest between native and non-native participants in the fishing industry must be achieved, but in achieving that balance, let us be gradual, let us be circumspect, let us recognize that the practical ability to move bundles of fishing entitlements from one side of the scale to the other is in fact severely limited in scope, at least in the short term, by social and economic realities.

• 1020

I conclude my remarks this morning, as I conclude my written brief, with a plea that the committee urge the government to avoid creating totally separate and new commercial fisheries in which the treaty right may be pursued.

The overriding public and constitutional purpose behind subsection 35(1) of the Constitution Act, as the Supreme Court has repeatedly said, is not the transfer of resources but the reconciliation between the aboriginal and non-aboriginal communities. In the commercial mainstream of Canadian society, including the mature commercial fisheries of Atlantic Canada, we say reconciliation is achieved by accommodating entry and not by exacerbating competition for a scarce and vulnerable resource.

Mr. Chair, those are my prepared remarks. Thank you very much.

The Chair: Thank you very much for a well-documented submission.

Mr. Cummins.

Mr. John Cummins: Thank you, Mr. Chair, and good morning, Mr. Moreira.

Mr. William Moreira: Good morning, Mr. Cummins.

Mr. John Cummins: I think it is only right that you conclude your remarks with the notion that reconciliation between communities is the object of this Marshall exercise, because indeed I believe it was in the Gladstone case that the Supreme Court made the very same observation.

In this Marshall decision the Native Council of Nova Scotia, in opposing your latest motion—and I am talking about the latest decision—noted and are quoted in the decision, where they are talking about eels, as saying that eels are a traditional harvest species being harvested by Mr. Marshall in a traditional method in relatively small quantities. You note in the redefined rights section that the court affirmed the treaty right as a right to fish, to hunt, to gather other traditionally harvested resources, and sell the products of that fishing, hunting and gathering for the purposes of earning a moderate livelihood. You note, as well, of course, that it is geographically exercisable in the area traditionally used by the local community where each of the separate, but similar, treaties were made.

You will recall, I am sure, that the Van der Peet decision of the Supreme Court of Canada dealt strictly with salmon and it applied only to the Sto:lo Nation, who fished on the Fraser River in the Mission-Chilliwack area. The Gladstone decision dealt strictly with herring roe on kelp and it was dealt solely with Heiltsuk Band of the central coast of British Columbia. The Marshall decision, as the court said in its clarification decision, dealt with herring roe on kelp, and to date a lot of the discussion surrounding the treaty has been with lobster.

In your view—and it doesn't have to be a definite view this morning, we could allow that you may want to change your mind after further reflection if you haven't already thought of the issue—should lobster, and access to lobster, given these decisions and court's comments in the revised Marshall, now not be looked at from a geographical and an individual treaty right perspective? And should it not then be determined whether access to lobster may not be available for all bands throughout the Maritimes, but it may be limited to certain bands that may have that right under their individual treaties, or it may be that no band should have access to lobster because it was not a traditionally harvested resource?

Mr. William Moreira: I think one could, if one wanted to, litigate each of those questions, Mr. Cummins, but I am not sure that would be a sensible approach to the problem. I think it is a given that lobster is a traditionally harvested species by some Mi'kmaq communities, although I don't know whether all or some or which ones.

But I think the approach to the problem is not to focus on the tradition as much as what the Supreme Court has called the “largely regulated” fishery of today. In fact the lobster fishery is a number of geographically discrete fisheries, and there are a number of both political and biological reasons for that. The stocks are fished vary geographically; they have different migratory habits, different spawning habits. All kinds of different environmental factors impact that fishery in various parts of the Atlantic coast. I think the challenge is to interface the treaty right with the geographic and biological reality, which none of us can change and which impacts those fisheries.

• 1025

At the band level, I suggest that the limited geographic-in-scope nature of the treaty right should have some impact in determining which members of which contemporary band participate in which geographically discrete lobster fishery. Maybe a traditional harvesting inquiry is appropriate to be made. Maybe modern logistic feasibility is an issue to be made. Maybe the ability of that lobster stock to support a portion of the aboriginal community in addition to the non-aboriginal community is a preference. All of these things must be brought into the mix. But I think one has to focus on each fishery, whether it's lobster or any other species, in terms of the ecological dynamic of that fishery, the demography of the people who presently campaign to seek access to that fishery, and one has to try to achieve a reasonable balance between all those criteria, which are not necessarily competing but are at least diverse.

Mr. John Cummins: The reason I asked the question is that I think it is one thing for the government to encourage aboriginal participation as a matter of government policy, but it is another thing to acknowledge that it is a treaty right, because it puts the participation at different levels here—one of course constitutionally protected and the other merely a matter of government policy. But if you approach this as a treaty right in one fishery, are you making a statement then that you're going to be approaching it that way in another fishery, and does that put restrictions then or does that colour participation in that other fishery in a different way?

For example, the snow crab fishery may or may not have been a traditionally harvested resource. And if you encourage participation as a matter of economic development in a community, that is certainly one thing. But to acknowledge somehow or another that this participation comes about as a treaty right as a result of Marshall is a whole other kettle of fish. It will have to be viewed differently, and I am sure it will be. If somebody somewhere down the line decides to assert their right as a treaty right or feels they've been somehow left out and that treaty right exists, it can make things difficult for the harmonious relationships in the fishing community, and, as you suggest, this reconciliation between communities may be more difficult to achieve.

That is why I think the question is important.

The Chair: Can we be as brief as possible, Mr. Moreira? I'm giving leeway to time here because I think it is an important discussion, but we're running tight.

Mr. William Moreira: The answer to Mr. Cummins' question is yes.

The Chair: That's from a lawyer.

Mr. William Moreira: One can never refine this to a degree of perfection, Mr. Cummins. I have not considered what happens with a species like snow crab, contemporarily a lucrative fishery, which may not be a traditionally harvested species.

I think the answer to your question is that notwithstanding the constitutionally protected status of the treaty right, one still must, as I attempted to emphasize this morning, have regard to the legitimate interests of others presently accessing that resource. One should be more concerned I think with the balancing aspect of the equation than with the straight, pure, if I can call it that, content of the treaty right as applied in that context.

I hope that is helpful.

• 1030

The Chair: Mr. Bernier.

[Translation]

Mr. Yvan Bernier: I'd like to thank our witnesses. I read their document with a lot of interest. I'm going to be brief to leave enough time for other members to ask questions.

Something in the document tabled by the witness particularly drew my attention. As I understand, he is concerned about the impact of a buyout program on both natives and non-natives, in terms of keeping some harmony in their future relationships within the fishery. He is primarily concerned about the availability of licenses or their value.

There is one point I'm trying to understand and I am going to read the document again to try and do so, but to straighten things out, I'm going to ask the witness the same question I asked others earlier.

The problem we have shows the lack of flexibility of the Department of Fisheries and Oceans' management approach. The Committee has already recommended to the federal government, in its report on the East Coast published a few years ago, when Mr. Baker was chairman, that Fisheries and Oceans review the way it manages the fisheries and the Total Allowable Catch system.

Here is my question. Do you think we should use this fall's events to better organize the way fisheries are managed? Let's say we overcome the impact of the Marshall decision, it doesn't mean that there won't be other crises. So, to give more flexibility to the system and to better decentralize the Department's relationship with the communities, should we review the way the fishery is managed? Are there other matters the witness would like us to explore? Thank you.

[English]

Mr. William Moreira: Please forgive me, sir, for answering you in English. I shall attempt to do so.

The government's management is inflexible only when one disagrees with whatever the particular management decision has been. One of the endemic problems in our fishery is a lack of consensus among the people who work in the fishery, at least here on the east coast. Where consensus has not been achieved, the department has had to make decisions, and needless to say they haven't been agreeable to everyone.

That said, I don't think the decision-making process should be decentralized. At least within the Department of Fisheries and Oceans, a reasonable degree of influence is possessed by local offices. For example, here in Halifax, there's Mr. Bellefontaine's regional office. If we think of the department as a pyramid, the lower levels of the pyramid have a degree of influence on the decisions ultimately made in Ottawa.

That said, where improvement could be made is in both the process and the content of the consultative structure with industry that exists and that feeds these decisions, at either the regional or the national level. The process of consultation, I suspect, is difficult and frustrating when one doesn't achieve consensus or anything near to a consensus as a result of having consulted. But because the impact of the decisions that are made is so important to individuals, to communities, and to what I called in response to Mr. Cummins' question these “discrete fisheries”, it's imperative that the government obtain the best possible range of information and the greatest possible input through its consultative structure before decisions are made.

One of the gratifying results of the Marshall experience is the focus on consultation. I would not use the word “negotiation”. I don't think much in the way of consensus is going to be achieved as a result of that, but I commend the government for having embarked on what I understand is a broad-based consultative program as a result of the Marshall decision. Hopefully one of the things we will see in the future, and with respect to other issues, is a larger and better consultative program than has existed in the past.

• 1035

The Chair: Mr. Stoffer.

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

Thank you very much for your presentation. I've followed your comments closely since I've been elected, and I must say I agree with almost everything you say, except for just a couple of small things you pointed out.

In your brief, you state there is a concern that a government-funded licence acquisition scheme will naturally drive up the value of existing licences. In some cases that may be true, but on the west coast we've had examples where it has worked in reverse. They stalled and waited to the point where the licence and what the government was going to offer fishermen after years of service was very little indeed. People in areas like Sointula, B.C., were really getting nothing for what they felt their licences and their livelihoods were worth. So it does work in reverse as well, when the government interferes.

There are two questions I have for you. You accept the fact that the government is now in a process to bring the groups together in order to iron out their differences. They are doing that now because of the Marshall decision, but they never did it before. History proves quite well that they told the aboriginal people before to basically pound sand and take their case to court; they weren't going to deal with it.

Three straight decisions have come out of it: Sparrow, Delgamuukw, and now Marshall. The confusion because of those decisions has wreaked havoc right across this country—on the west coast with the AFS, and now on the east coast the Marshall decision is another concern. I would like to get your views on why you think the government is involved in consultation now and why they weren't before.

The last question I have for you is—and I've asked this question to almost every legal person who has come before us—in your opinion, does the Marshall decision apply to non-status aboriginal people? You knew that was coming.

Mr. William Moreira: I am delighted to answer your first question, Mr. Stoffer.

When I spoke of consultation, I guess I meant pre-existing consultation, specifically focused on the management of discrete fisheries. The broader-based consultation on what I'll call policy, whether that is the correct expression or not, was maybe deficient before. I'm not sure if there was the degree of general public interest in this industry before the Marshall decision that there has been since.

I suspect the ability to do what Mr. MacKenzie and his staff are now doing is not something one can apply to every problem. I guess I'm distinguishing great issues of public policy, like Mr. MacKenzie's work will likely impact, with the micro-management of specific fisheries, which—as I intended to say to Mr. Bernier—is where the process could be improved.

As to who the beneficiaries of the treaty right are, I certainly don't have a legal opinion. If I have a personal opinion, I'm not sure it is more valid than anyone else's. That's one of the very difficult issues that remains to be addressed.

In the second Marshall decision, when the court speaks of the beneficiaries to members of aboriginal communities, to my uninformed mind that means the band, but I am not suggesting to the committee that's the correct view. I'm saying we find little certainty on that issue, at least to my mind, from the Marshall decision.

The Chair: Thank you.

Mr. Muise.

Mr. Mark Muise: Thank you, Mr. Chairman.

I would gladly defer to my honourable colleague, if I can have a chance later.

The Chair: Go ahead.

Mr. Mark Muise: Thank you to our witnesses this morning.

I'm not sure we can properly answer this question, but it's been going through my mind for a long time, and since we have legal representation before us, I'm going to ask it.

• 1040

On the first page of your submission, you say “to sell the products of that fishing, hunting and gathering for purpose of earning a moderate livelihood”. I have had so many people say, “Mark, what is moderate? Is it the average of what a lobster fisherman in Atlantic Canada earns? Is it less? Is it more? What is it?” Is there something you could clarify there?

Mr. William Moreira: I wish I knew. I think it's certainly very geographic. In terms of absolute numbers of dollars, a moderate livelihood in British Columbia, or at least in the southern mainland, is quite different from a moderate livelihood in Yarmouth County in terms of the consumer cost of living, the industrial opportunities, and the opportunities to earn a living. I suspect that whatever part of the country one looks at, one would find that same diversity of comparison.

I think the concept of a moderate livelihood has to be tied to the industry in which one participates, again with reference to our fisheries in the east coast, with each of the discrete geographic and by-species fisheries that exist. In many cases what we in this room would consider a moderate livelihood, by any measure, is not earned by a great many people.

I'm thinking of Mr. Cashin's work, for example, in the early 1990s on the incomes and adjustments task force, and all the charts and tables that were published at that time. I suspect, even if not principally, one has to be aware of the economic experience, on an average basis, of the people in that fishery in that area at that time. I suggest that is at least a large part of the measure of what the concept “moderate livelihood” means. I'm not sure it can be fairly answered with reference to other national or industrial experience.

The Chair: Mr. Provenzano.

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Thank you, Mr. Chair.

I say to the presenters it is always a pleasure to listen to a well-reasoned and well-presented brief.

We didn't have an opportunity to see these things in advance, so I'm hoping I have this right. The Supreme Court, in redefining the right to a moderate livelihood, said the right is owned collectively by the aboriginal communities. In your brief, you mentioned that you agreed substantially with Mr. Harvey's brief, and I would say that brief has gained some force after the decision.

The question of the right being owned by aboriginal communities collectively, as opposed to individual aboriginals, seems to make irrelevant the statistics that were provided—and any real exercise, I would think—in looking at the number of aboriginals and the number of licences. I would like your comment on that, because you end your brief by saying this is a matter for reconciliation and negotiation by communities. That seems to be what's inferred in the redefinition of who owns that right to earn a moderate livelihood. Do you agree that the question of individuals and how many there are would be irrelevant in the process now?

Mr. William Moreira: I don't think it's irrelevant in the sense that one still has to look at the capacity of this resource to moderately support a given population. Clearly, the population that presently relies on that resource and the Mi'kmaq population combined are too many people for this resource to support, moderately or otherwise. That identifies the problem. I don't think it assists us in achieving a solution.

• 1045

The right being collective and not individual is, I think, a two-edged sword. If it's a collective right held by a community, the Acadia Band for example, does that mean the band has the right to see the aggregate of its membership moderately supported? I do not know. I say that's an extreme characterization of the right.

Mr. Carmen Provenzano: Or does it mean that the band as a community has to share in some proportion with other communities?

Mr. William Moreira: Whether that's what the Supreme Court intended, I don't know, but I think that's a rational and sensible goal for which to strive as a result of the decisions the court has offered.

I repeat my concern that even if it's a worthy goal, one can't rush to get there, because one can do more harm by moving too quickly to do that. But the balancing, the sharing, the reconciliation, all of these concepts of moderation, if I may call them that, which we hear so much of and, I am sure, the committee hears of, are the articulation of this goal of a reasonable sharing between communities. I suspect there will never be a high degree of consensus as to how much is enough for any of those communities. But one can't focus on one piece of the equation, because one risks being unfair to the other pieces.

Mr. Carmen Provenzano: Do you agree that the overall concept, though, infers that it's that kind of sharing between communities?

Mr. William Moreira: I agree that's the overall concept. I'm not sure I'm in a position to comment on all of the devil that may be in the details that fall out of that.

Mr. Carmen Provenzano: Thank you.

The Chair: Last question, Mr. Matthews.

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

I'd like to make a light comment before I ask my question. I wonder if in your interpretation of traditional rights you found the right to hunt or gather seals. With all the pressure on all the other resources in Newfoundland and Labrador, we'd be more than willing to share some of those 8 million animals.

Mr. William Moreira: You'll be glad to know—

Mr. Bill Matthews: I'd be glad to lead a delegation to Newfoundland to that end.

But on a more serious note, an opinion exists in the historical community in particular that the rights given under the 1760-61 treaty were the same rights afforded other British subjects. In your opinion, do you think the government in its case concentrated enough on exactly what those rights were? It follows somewhat on the line of Mr. Cummins' questioning. I think it sort of dovetails into that, the question I'm asking. What really were the rights in 1760-61? If they were the same rights as for other British subjects, then what did they entail? The question Mr. Cummins has asked is of sincere interest to me. Lobster, snow crab, other fisheries, I don't know if they were even prosecuted by anyone back then. Maybe they were, and if they were, by whom?

I'm wondering if you've thought about this or if you have any opinion. I would be interested in hearing your response to that, because it is something that interests me somewhat.

Mr. William Moreira: I am not a historian. What I have learned of this history is through what all we lawyers had to read in order to work on the Marshall case.

Just on seals, there is a chapter in the existing policy book about seals and about preferential access for the Inuit and perhaps others to the seal fishery. So perhaps there is some prospect of building on that, Mr. Matthews.

Mr. Bill Matthews: Thank you.

• 1050

Mr. William Moreira: The challenge is to apply not only historical facts but also traditional practices in a modern commercial context. This is part of the discussion I had with Mr. Cummins a moment ago.

I'm not sure if you're asking me to comment on the proposition that the government didn't carry the can in the Marshall case about what was the nature of the right in 1760. I can assure you, because I was there, that the government took great pains to emphasize British mercantilism, especially colonial mercantilism, in the 18th century and that whatever rights of British subjects were conceived in the treaty were subject to mercantile regulation. I don't think that's an issue the government lost sight of.

I think what the court did in the first Marshall decision was to say, that's okay, but we have now constitutionalized some of those rights, and off we go.

All I can do is repeat or perhaps rephrase what I intended to say to Mr. Cummins. We probably do the industry and the public a better service by focusing more on the modern commerce side of the problem than on the traditional activities side of the problem. Traditional activities, the court has said, have to get you in the door. Take the example of logging. The court leaves open whether logging is a traditional harvesting activity. We don't know. That's subject to litigation at the moment. If it is, then there is an entry into the modern regulated industry, and we deal with what the implications of that are in the modern commercial context.

I hope that's an answer to your question.

Mr. Bill Matthews: Yes. Thank you very much.

The Chair: Thank you for your presentation. We did take a little longer, but I felt maybe we should on this presentation. Thank you, Mr. Moreira and Ms. Higgins.

Mr. William Moreira: Thank you, members of the committee. It's a pleasure to have been here.

The Chair: Next is the Area 19 Snow Crab Fisherman's Association, represented by Mr. Beaton, Mr. Doucet, and Mr. Adams. Gentlemen, welcome. You have a presentation to begin with, and then we will go to questions. We have about half an hour.

Mr. Stewart Beaton (Director, Area 19 Snow Crab Fishermen's Association): The presentation itself is quite brief and can be read in about eight or nine minutes, something like that.

Mr. Chairman and honourable committee members, thank you for the opportunity for the Area 19 Snow Crab Fishermen's Association to appear before you today. Our association is unique in the inshore fishery in Canada today. We are comprised of 111 licensed snow crab fishermen operating in snow crab fishing area 19 adjacent to the western coast of Cape Breton Island.

In 1996 the association entered into the first co-management fisheries agreement and integrated management plan in the inshore fishery in Canada. This contractual agreement between DFO and the association places most of the day-to-day and year-to-year management of the fishery into the fishermen's hands through their association. Within the constraints of the TAC, almost all management decisions are made by the user group and almost all the costs of the scientific stock assessment, enforcement and compliance, quota verification, management, and at-sea observer coverages are borne by the industry.

The project, in our estimation, has been a signal success, and it is our understanding that the DFO managers are equally pleased with the agreement. In fact the DFO negotiating team was recognized internally for their role in the formulation of this agreement. That is sort of interesting. Just as an aside to that, any time DFO negotiators get an award of excellence, it means we probably didn't negotiate hard enough.

The Auditor General's report on the shellfish fishery also singled out this arrangement, and there has been interest expressed in the arrangement from as far away as Japan and South Australia.

• 1055

That's the introduction.

Our presentation today will address two main themes: first, our desire that your committee understand the nature and value of structured co-management; second, with respect to R. v. Marshall, the nature of current and possible future involvement of aboriginal fishermen in the area 19 snow crab fishery.

On the first topic, co-management works. Most of the concerns expressed by fishermen with respect to the operation of a successful fishery can be addressed in the co-management model. Fishermen in general—and that's fishermen in most fisheries that I know of—want effective conservation. Without a sustainable resource, none prosper and none survive.

Second is reasonable security of tenure. The capital-intensive nature of today's fishery requires that predictable long-term management structures be in place so that individual operators can act with confidence that political or capricious decisions are not made that will erode the ability of those operators to meet their obligations, remain economically viable, secure a future, and develop a fishery that will provide—God forbid—a reasonable return on investment.

Three is top-quality science. Stock assessment must be accurate and precautionary. In addition, science must be transparent to and participated in by the fleet.

Four is management control. Insofar as is possible, both practically and within the constitutional mandate of the minister and the DFO, fishermen should have a major role in their industry. Fishermen must likewise have the maturity to be responsible for the results of their own management decisions.

Five, improve and participate in fisheries enforcement. This will improve a sense of stewardship.

Six—since we are speaking at a political forum today—depoliticize the process of allocation. The fishery is not and ought not to be a bauble for political intervention and decision-making at the allocation level.

Seven, empower fishermen's organizations. The players must have responsible, democratic organizations to effectively deal with issues as they arise.

Eight, create a system that provides flexibility for the operators. ITQ systems, if properly structured, provide for orderly growth and divestiture of the holdings of fishermen.

Nine, identify stakeholders. Licence holders clearly have the major stake in the fishery and should be recognized as such.

Fisheries everywhere aspire to all or most of these goals. Co-management can achieve them, but this does not come cheaply. Recent DFO initiatives have focused on cost recovery, whether it be through increased access fees, cost-sharing of infrastructure, and so on. The guiding principle, from our view, is that “user say” must accompany “user pay”.

It is our hope the standing committee will gain an understanding of the value of long-term co-management agreements and work to strengthen the possibility of the continuation of existing agreements and support the development of future agreements.

This part, I suppose, is a little off the topic, but I believe it provides a framework under which appropriate fisheries management works and under which appropriate fisheries management can work with native participation.

The second issue we wish to address today is the implication for area 19 of R. v. Marshall. At the outset, it must be pointed out that area 19 has the highest current participation by natives of any inshore fishery in the Atlantic.

Since 1993, three native bands, Afton, Pictou Landing, and Wagmatcook First Nations have been active licensed participants in the snow crab fishery. Since 1996, these bands have held 5% of the total TAC. No other fishery of any species has native participation remotely approaching this level.

Furthermore, it's worth noting that under the ITQ rules for this fishery the bands in question have the potential to increase their holding by topping up their licences to the maximum level under the ITQ system, to the aggregation limit, if you will. They could increase their holdings to 13% by the purchase of existing TAC shares as they become available within the current TAC pool.

• 1100

We would make two recommendations: first, that no new permanent access to this fishery be considered if it constitutes an increase in effort; second, if the bands are to increase their stake, that increase must come as the result of a free market purchase of trap shares on a willing buyer and willing seller basis. It is not incumbent on the fishery or the fisherman to discharge the responsibility of the people of Canada to the Mi'kmaq. It is up to the Government of Canada in right of the people of Canada to do so.

Area 19 crab management provides within its framework a mechanism by which this can be done. We are opposed to the creation of any new schemes that would violate the process or the agreement.

It should be noted in passing that if all fisheries had 5% native holding, as we do, within the fishery, the requirements for native access rights, moderate living, and so on would be fully and, I would say, amply discharged. It is not spiteful for us to suggest that until other fisheries reach the level of participation we currently have, we are averse to entertaining further native presence outside the potential existing already within the agreement.

In conclusion, I would like to state that we are in general agreement with the seven principles presented by the fisheries alliance and other Gulf-based groups—I am sure you have heard those principles, so I won't go into them—with respect to native involvement in the fishery in general.

We were first off the mark to welcome natives into our fishery, and the bands involved have been an asset to the fishery and to our organization. Native participation in any fishery, without increasing effort, with compensation to displaced effort, and under the same general conservation rules, seasons and regulatory framework, is fair and reasonable to the indigenous peoples and respects the implicit rights of commercial fishermen.

We are giving you an attachment that I would really urge people to read if they have time. It is a presentation given by Sir Tipene O'Reagan, who is the chief of the Treaty of Waitangi Fisheries Commission in New Zealand, the CEO of Sealord Group, and also a history professor at Canterbury University. He is the first Maori ever to be knighted to the OBE. It would be well worth your while to read it. With respect to this, we put this in so we don't have to reinvent the wheel.

That is the extent of our presentation. Since I have the mike for a second, I would like to make one comment, which is off the presentation and has to do with the notion of moderate living. It was interesting that Bill Moreira was questioned about that.

To me, “moderate living” is the most insulting, racist piece of crap to come out of the Marshall decision. If the natives are going to be in the fishery, are going to be licence holders in the fishery, and are willing to invest and to work hard, they are entitled to make a good living. I would like to tell the Supreme Court justices that maybe they should make a moderate living.

The Chair: Thank you, Mr. Beaton. We don't have the attachment as yet. I assume the clerk's desk has it and that it will get to committee members sometime today.

I have just one other question before I turn to Mr. Cummins or Mr. Duncan. Yesterday we had snow crab areas 12, 25, and 26 before the committee, and they presented us with a five-year co-management agreement. Are you operating basically in the same kind of way?

Mr. Stewart Beaton: We have a five-year agreement, which we will leave at the desk.

The Chair: That is what my key question was. That is a five-year agreement as well. When did it begin?

Mr. Stewart Beaton: It ends next year.

The Chair: Okay. Thank you.

Mr. Cummins.

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

Thank you for your presentation this morning, Mr. Beaton.

You noted partway through your presentation that if all fisheries had 5% native holding like you do, requirements for native access essentially would be satisfied. Our experience in British Columbia was that natives constituted 30% of the commercial fishery and that wasn't good enough. On the Fraser River, the government has given them 50%. With the Nisga'a treaty, one band is being given 25% of the Nass River. There are four other bands with claims to it. There will be nothing left for non-aboriginals on that river.

• 1105

You also mentioned New Zealand. Correct me if I'm wrong, but my understanding is that the Maori ended up with 25% of the fishery in New Zealand. Could you comment on that? How did you arrive at this 5%, and why would you think that is satisfactory? What was the percentage staked in New Zealand?

Mr. Stewart Beaton: The document that you will have is quite clear on what happened in New Zealand, but I'll run through it for a second. The number that we happen to have is 5%, but if you look at the Atlantic coast fishery in general in terms of value, when you look at population in the area of 1%, 1.2% or 1.4% native, it seems it's a pretty good shot in terms of the balance of communities and all this.

The situation in New Zealand was a very similar legal situation. There was a court challenge and the Treaty of Waitangi was upheld, but rather than going through further litigation, they sat down and negotiated. At the outset, I believe they negotiated 27% of the fishery. The Maori constitute about 20% to 22% of the population, so—

Mr. John Cummins: There's a balance there.

Mr. Stewart Beaton: Yes, it's a bigger number. And they already had individual or tribal holdings of a few more percent, so they in fact had about 33% when the deal was signed, sealed and delivered.

Mr. John Cummins: One of the problems in this country is that the government tends to be more generous in the courts, and to a fault. In British Columbia, 3% of the population is native and they constituted 30% of the fishery, but that wasn't enough in the eyes of the government.

Mr. Stewart Beaton: That's why we put forward the information on the Treaty of Waitangi. It is a very nice little capsule by Sir Tipene O'Reagan, who was involved. I don't know that we necessarily have to reinvent the wheel on the native issue.

Mr. John Cummins: That's right. I actually have some other material on that treaty and the New Zealand situation in my briefcase here, but I haven't gotten to it yet, so I appreciate that.

I will pass you on to my colleague Mr. Duncan.

Mr. John Duncan: Actually, I have no need to ask questions, because that's what I was going to ask.

The Chair: Okay, we can come back to you for a minute, Mr. Bernier.

[Translation]

Mr. Yvan Bernier: First, I'd like to thank the witnesses.

Strange as it may seem, I'd like the witnesses to talk about one of their recommendations, number 6. I find it refreshing that they should ask that the allocation process be depoliticized. I'd like the witnesses to tell us what initiatives we could take to this end or how this could be articulated.

I know that as far as crab management in their area is concerned, there are individual quotas. How could we manage to extend that system to other fisheries? Crab is a rather lucrative resource and you can afford to put in place a management system. How could this process be extended to and shared with other types of fisheries next to yours? That's the first part of my question.

Second, if the allocation process is depoliticized, how could we give the government enough leeway to compensate for past errors? This is what's happening with the Marshall decision. Even if, as far as you are concerned, there is already a fair number of natives within your fishery, how could we use the depoliticization of the process to give some leeway to the entity which is supposed to lead the rest of the community responsibly? I'd like to hear what the witnesses have to say in this regard.

[English]

Mr. Stewart Beaton: The first answer is that you essentially set up a contractual arrangement with the government for the fishery through some sort of a long-term management plan, and the longer the term is, the better. Within that plan, you have to be astute enough to set what are, in fisheries management terms, often referred to as decision rules. You have to decide ahead of time what will happen when certain conditions present themselves.

With respect to the agreement, I'm sure we can leave one with you, and there is also a French copy. Anyway, they are certainly available through the department and on-line.

• 1110

We have created a decision rule. On page 7, section 6.7 of the agreement, we have a sharing arrangement, but we have additional sharing. What that does is determine that if the fishery reaches a predetermined level of value—which some people might call excess profits, if you will—there is a mechanism whereby temporary resource sharing will occur to others.

In that sense, this has depoliticized the process. If there is a hue and cry because there is a lot of crab around next year, in the following year or in six or seven years' time, and if you have all sorts of badgering going on for access, the government people, the DFO managers, can go back and can say we have a decision rule here and that's the way it is for now. In seven or eight years' time or in five years' time or whenever the agreement is up for renewal, that's the time we might want to address changes to it. What we are creating or are attempting to create is a longer-term, more stable approach, with better security of tenure. I believe it's accomplished by the power of a contract, personally.

The Chair: That was explained fairly substantially yesterday as well in terms of sharing the pie—or expanding the pie, I guess it was.

Mr. Bernier, is that your have a final question? You were brief for a change.

[Translation]

Mr. Yvan Bernier: I find it refreshing that people suggest a new way to manage, but this suggestion calls for a question. How could we extend this management process to other fisheries? As I was saying, because crab is a bit more lucrative resource than herring, crab fishermen can afford to develop a management system. At the same time, do you people have any idea about the way this co-management process could be applied to other types of fisheries? Do you have any thoughts you could share with us in this regard?

[English]

Mr. Ronnie Doucet (Vice-President, Area 19 Snow Crab Association): I can speak for the association, but I can't speak for all the fishermen. Personally, I would like to see it in all fisheries. Lobster could be one of them, because there is a real surplus of lobster fishermen, especially in our area.

Native access definitely has to be a buyout from the government. At that, along with the fleet planning board, we are constantly trying to get a reduction of lobster licences in the area. They haven't really tackled that yet, but it was supposed to be one of the primary things on the agenda. That's the way to go as far as we're concerned.

You have to have diversity. If there are too many fishermen in one fishery, then there have to be fewer numbers, but they have to have the ability to buy and to transfer, just like our ITQ system and the ITQ in groundfish in the gulf. At the same time, we have to make sure there are always a certain number of fishermen involved in our agreement. If you leave loopholes through which one big company can start buying out everybody, then it will turn out that there are only a few participants in the fishery.

You have to have guidelines like the one in ours. In ours, there will never be less than 111, and never more. We started with 111 and we are going to stay with that number, but they can change from 4 to 26 traps. That's the way it should be in all of the fisheries, as far as I'm concerned. The end result is that there have to be fewer participants in the fishery.

Along with the Marshall decision, the natives want more access. As the ones before us said, if there is going to be a buyout, it has to be a bigger buyout. If they're going to buy ten, then they'll reissue five. You then get the native participation, but you also get less effort in the overall Atlantic fishery.

The Chair: Thank you, Mr. Doucet.

Mr. Stoffer.

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

It's always a pleasure to talk to fishermen and their organizations in order to get the real facts about what's going on on the water.

I have a couple of concerns. You mention the ITQ system here. You probably know I'm dead against that in terms of the way it has been approached so far by the government, and in terms of how it concentrates the resources into fewer and fewer hands. But I'm certainly not going to squabble over your plan.

I do know that fishermen from the areas we spoke to yesterday—the snow crab areas in Prince Edward Island—and you are successful examples of where, from the bottom up, fishermen are working with DFO to come up with comprehensive plans that benefit everybody. I have to compliment you and your organization on that.

• 1115

But in terms of the lobsters, many lobster fishermen I have spoken to—and there are 5,300 licences remaining in the maritime region—are very afraid of an ITQ system on lobster. My fear is that DFO, using the Marshall decision maybe as the parameter to decrease the number of fishermen who have access to lobster, may introduce that kind of system, which, by the way, I know some corporations are in favour of, and even some individuals are in favour of it as well.

I know you're from the crab fishermen area, but in your experience, do you believe an ITQ system would be beneficial to the lobster industry?

Mr. Stewart Beaton: Personally, I would say yes, absolutely.

Mr. Peter Stoffer: Okay.

Mr. Stewart Beaton: I share your concern. We structured an ITQ system within our arrangement from the bottom up, with the proper caveats and the proper rules—the owner-operator provisions, the no corporate ownership, the no leasing, and all the various things we put, and limits. Just because systems were established elsewhere, for example, in the southwest Nova Scotia groundfish...sit back and put an aggregation limit of 2%, and guess what? You are going to have 50 players after a while. That's a question of poor structure.

I always say, if you're standing at the North Pole, you can look around you and all the directions are south. That's my answer, an ITQ. All my directions are south. But if I want to get to Jerusalem, I could head south and end up in Los Angeles as easily. You have to keep your goal in mind, what it is that you want to do.

The sort of hysteria about corporate aggregation in ITQs is a design problem, not something that is by definition an ITQ problem.

Mr. Peter Stoffer: Okay.

You mentioned also that user say must accompany user pay. Right now, for example, stocks are very lucrative. What happens if the price of crab goes south?

You talked about a return on your investment. There is no question that fishermen invest an awful lot of time and money, and in many cases they risk their lives as well when they are on the water, especially in rough water, because you sometimes go offshore and mid-shore as well.

Mr. Stewart Beaton: The price of crab did go south. Five years ago crab was $4 a pound. Two years ago it was $1.75 or $1.40 a pound. That's pretty far south. But we also take the view, which I think we indicated here, that if you are going to be involved in making these decisions, you have to be a big boy; you have to take your lumps. If things go the wrong way, you live with it. Things can get good. I have no apologies to make to people who don't have crab licences if crab is $10 a pound. That is not in my hands.

Mr. Peter Stoffer: Okay, but the concern I have is not under your particular system but with the other systems that are out there. If they stay south for quite a while, obviously people won't be able to retain their livelihood in the crab fishery. Obviously they have loans and bills and everything else. Are they involved in other fisheries as well in order to offset that?

Mr. Stewart Beaton: Generally, yes, but what you're saying is a very broad comment. It doesn't matter what you're fishing; if there's no salmon, if you have a resource problem or a major price problem, as has happened in herring and things, you have to give some serious thought to whether you should be doing that.

Mr. Ronnie Doucet: I think the fishing business should be taken in the same way as if you owned a construction company. Right now in Halifax it's booming, but five years ago it wasn't. Five years from now, hopefully it will still be booming, but if it isn't, quite a few of these construction companies aren't going to be in business any more. That is the way the fishermen have to be treated. You're in business, and you run it the best you can. But as soon as things get good or really good, hopefully the construction company is smart enough to put money away for the bad times.

But if fishing is good in the crab fishery, it's not time for the politicians to say, oh, they're making too much money now, so we have to give it to the other guy. When things go bad, then you have double the players and half the resource and half the money coming in. We have to be treated as businessmen or businesswomen, which I think we are. As soon as things get good, they can't just take it away. When things get bad again, then you have TAGS all over again, which nobody wants.

The Chair: Mr. Power.

Mr. Charlie Power (St. John's West, PC): Thank you.

Ronnie, giving a free-market speech to a socialist like Peter is not necessarily a productive use of time.

Mr. Ronnie Doucet: I'm trying.

Mr. Charlie Power: We're all trying, but we haven't had much success.

Mr. Peter Stoffer: It's good to hear it.

• 1120

Mr. Charlie Power: Yes, it is, actually. You may be converted to a conservative way of life one of these days.

In the management system, this contractual agreement you have with DFO, basically you do all the day-to-day and year-to-year management within the total allowable catch. So is federal fisheries just saying, look, we'll set the total allowable catch from the federal fisheries perspective, and then you as fishers run the show from then on?

Mr. Brian Adams (President, Area 19 Snow Crab Association): That's pretty much it. We have a mechanism in there, again, where the fishermen themselves can set it if the TAC is set at a certain rate.

For the last three years we were taking an exploitation rate of 63%. In this upcoming year, for example, we can sit down at a meeting and we are able to set the TAC or discuss it at 50%—it's all based on science. If it goes above 50%, then the DFO certainly gets involved, and science, to give us an idea of where we should go. If we want to set it lower than 50%, let's say, for any given reason, the association as a whole would make that decision—of course, mind you, with the DFO overlooking it. But as you see, it's a general agreement with the DFO, and with science always at the top giving advice that we have to go by.

Mr. Stewart Beaton: What you do is make a series of decision rules as to what you are doing. But there are hands-on things.

You're talking about the management, as an example. We had a report done by the science community that indicated that if you had traps that fished from the top and were steep on the sides, the retention of soft-shell crab was lower. Soft-shell crab are not marketable, and there is some mortality in returning them to the sea. So the scientists said to us it was pretty clear from their testing that we would have a reduction in the amount of soft-shell crab retained.

We went to our annual meeting, had the scientists present that, and had a motion put forward in the organization that said you have to have top-fishing gear within this zone. But 30% or 40% of the people in the room did not have top-fishing gear, and it represented to them an investment of maybe some tens of thousands of dollars to gather it up. The motion passed. I believe it was almost unanimous. We then notified the DFO and said, by the way, as a condition of licence in that fishery, you have to have a top-fishing trap. They said, oh, thank you very much. If DFO and the science branch had come a few years ago and said, you know, you guys really ought to be thinking about doing this, it would take ten years and it wouldn't be done yet. We did it in 20 minutes.

Mr. Charlie Power: The other question would be, if it works well in this fishery, why doesn't DFO do it with a lot of other fisheries?

Mr. Stewart Beaton: It's because it's bottom up. I don't think they're going to impose solutions.

The Chair: Mr. Muise, a quick question.

Mr. Mark Muise: Yes, thank you, and thank you to our witnesses.

Mr. Doucet, you mentioned earlier, and a previous witness said, that we have to be cautious. If there's a buyback of the lobster licences, we have to do it gradually, because what would happen is that it could increase the purchase cost of licences that exist, making it more difficult for newer participants to enter.

If, as you said earlier, ten snow crabs are purchased and only five are given back, wouldn't that just raise the purchase price of those that remain? I am trying to understand why, for one, we have to be cautious, but you're suggesting that. That's just for clarification; I am not expressing an opinion.

Mr. Ronnie Doucet: It wasn't for snow crabs; it was for lobster.

Mr. Mark Muise: Oh, it was for lobster.

Mr. Ronnie Doucet: The reason for saying that about lobster is that, in our area anyway, lobster seems to keep on diminishing every year. So there was a lot of talk of going to such a program, along with DFO and the fleet planning board, that we should really look at trying to set up a program for some kind of industry-government—

Mr. Mark Muise: So it was because it was a different situation from what we have in the southwestern part of Nova Scotia.

Mr. Ronnie Doucet: Yes.

Mr. Mark Muise: Thank you.

• 1125

Mr. Ronnie Doucet: If I may add, there is a problem that if we are to get native access into all fisheries, the prices of licences are going to go up, for sure, because there is a demand for it. It is going to keep traditional younger fishermen from getting into it until that goal is reached.

But I don't think we have any choice in the matter. I think the Marshall decision has—

Mr. Stewart Beaton: Just to really thrill Mr. Stoffer, if you made licences into a bankable, assignable asset in perpetuity, as is done in New Zealand, then you would have no trouble raising money.

The Chair: The last question to Mr. Duncan.

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

I was looking at the nine points you make, and I think they are all good points. They are all things the committee has pursued at one time or another.

In number six, in which you indicate that the process of allocation needs to be depoliticized, you obviously feel you accomplish that through your co-management agreement. It appears that it is really the crux in many respects of what is flowing from the Marshall decision; that's the crux of the aboriginal allocation issue.

I am seeking your practical advice for the committee in terms of how you think that could be achieved, not in an ITQ context but in the context of what flows from Marshall or any other aboriginal allocation issue. Do you have any thoughts that way?

Mr. Stewart Beaton: Not really a huge amount. I just came back from Australia a little while ago, and I spent about an hour each time at two separate lunches with Tipene O'Reagan on indigenous rights and issues. I was apprehensive about the situation, as I think all commercial fishermen are, but basically one of the things he said was that when life gives you lemons, make lemonade.

The recognition, if you will, of an indigenous right in the fishery ought, by implication, to strengthen the rights of the others down the road. I think how you improve the situation is to work toward more of a rights-based fishery. When those rights become of a quasi-property, a lot of mechanisms become available in terms of fleet reduction and in terms of some of the goals you might want to achieve.

Mr. John Duncan: Will we see that thought context you have just described in the document you provided to the committee?

Mr. Stewart Beaton: To some extent you will, yes. It might be more implied. It is an historical cut of what occurred in fact. But it does allude to the nature of the right in those fisheries. There is also lots of similar information available from South Australia and Tasmania.

Mr. John Duncan: Thank you very much.

The Chair: Thank you.

Mr. Adams.

Mr. Brian Adams: Thank you, Mr. Chair.

I would like to add something, if I may. This agreement was was drawn up by the fishermen and DFO because of a lot of pressure for new entrants. The DFO at that time came up with a pilot project and it didn't seem to suit the fishers and non-fishers. However, I would like to stress that we went into this in the dark, not knowing really at the end of the day what could happen. We spent a lot of time. There was a lot of money and a lot of free hours around the table coming up with this.

At the end of the day we had to convince our association that we wanted to at least try. People have asked us now—and we have upwards of five years behind us—how it worked, and I must say we are all in agreement here that it worked 110% over and above what we had originally anticipated.

As Stewart said earlier, if a framework is to be drawn up, I think you can do a good job of it. A lot of people are afraid of the ITQ system, for example, because of the name of it, I think. If you are able to do a good job on a contract, again keeping in mind all the variables and keeping in mind that everybody has to be addressed in it, I think we can do a good job in any fishery down the road. It is not going to be easy, but it can be done.

• 1130

Thank you, Mr. Chair.

The Chair: I have one last question. From your presentation, am I to take it that you believe the Supreme Court decision on Marshall can be handled under the arrangements you have already provided for in the co-management agreement?

Mr. Stewart Beaton: Yes.

The Chair: But there should be no change to that co-management agreement other than what is already in there.

Mr. Stewart Beaton: At the present time, that is for sure. There will be a point in time when we renegotiate an agreement, hopefully for a longer term. I'm sure at that time there may very well be concerns expressed. But I would argue that under the existing framework the native bands involved through a buyout, or a buy-up or whatever way they want to do it, under the existing rules that are there they can get to about 13%. That is a pretty hefty chunk.

We don't want to see our fishery or other fisheries cherry-picked. With all respect to the natives, I don't see them lining up to go dragging scallops out there in the Northumberland Strait today. They are more interested in the more lucrative things.

The Chair: Thank you very much, gentlemen, for a well-thought-out presentation.

We will call on the Guysborough County Inshore Fishermen's Association, Mr. Eugene O'Leary. That will be the last presentation this morning. The previous 11.30 a.m. meeting is cancelled. So we will try to conclude by noon.

Welcome, Mr. O'Leary. The floor is yours.

Mr. Eugene O'Leary (Member, Guysborough County Inshore Fishermen's Association): You will have to bear with me for a while. I am fairly nervous. I am not used to doing these types of things.

The Chair: Don't worry about it. There's no need to be nervous.

Mr. Eugene O'Leary: Mr. Chairman, and members of the Standing Committee on Fisheries and Oceans, my name is Eugene O'Leary and I am here on behalf of the Guysborough County Inshore Fishermen's Association. I am also on the LFA—lobster fishery advisory board—for 31A and CFA 24 temporary licence holders' representative.

I would like to thank you for asking us to speak before this committee. I hope that when you come to your conclusions on this matter our suggestions have some weight, and that some of your members are not replaced and your report shelved because of it, which seems to be this government's policy.

We believe we can work with the insertion of the natives in the fishery, which has been taking place since 1992. But this must be done under the same regulations as we have and without our fishermen being forced out of the industry.

We do not believe that negotiations to determine how treaty rights can be worked out should be between the native representatives and DFO alone. We of the fishing industry must be directly included in these negotiations. We are the ones with the most to lose, not DFO.

We believe many of the problems in the fishery today are caused by decisions that were made by a non-caring DFO. Time and time again, they have made decisions either without the input of the fishery involved or not taking into account our opinions.

Once again, DFO is trying to keep the industry out of the decision-making by appointing someone else to meet on our behalf. It is not that Mr. Gilles Thériault may not be a knowledgeable individual on the fishery. It is that we do not believe someone else should be at the table in our place. Everything will be left up to his interpretation, which may not be the industry's viewpoint.

As in the statement of the Supreme Court of Canada on November 17 regarding the Marshall ruling, the federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of a treaty right where justified on conservation or other grounds. Also, the regulatory authority extends to other compelling and substantial public objectives, which may include economic and regional fairness and recognition of the historical reliance upon and participation in the fishery by non-aboriginal groups.

• 1135

In the last 400 years, this area, ours in Guysborough County, was mainly dependent upon the fishery. Most of our communities have fishing-based economies. Until the 1970s the fisheries in our area were open to anyone who used our ports as their home port. This included natives and non-natives. No one was in a high-income bracket, but everyone survived. Then one by one, DFO placed limited entry on all species of the fishery. As licences were not used or retired, there could be no new ones issued. The only way to get into the fisheries was to buy out an existing licence holder.

Our lobster fishery has decreased to the point where there are no new entries, and every year DFO is pushing new conservation measures on us at the cost of our making a sustainable living. Regardless of what some officials say, they are pushing them on us. We are not agreeing to very many of the lobster regulations that are coming down.

Since the closure of the groundfish fishery in our area in the early 1990s, the industry has come upon hard times. We have been trying to survive as communities by fighting for quotas in underutilized species such as crab, shrimp, tuna, sea urchins, and so on. We feel our communities should be protected by allowing us to have more quotas in these fisheries. But DFO, over the last number of years, is intent on giving more and more to the natives.

The Marshall ruling seemed to reinforce their conviction, and even after the Marshall ruling was clarified on November 17, a DFO official told the native representative, at a meeting to discuss quotas, that they would have a priority over the fishermen vying for permits or licences. We understand that natives feel they have the right to fish, but we feel our communities, which have relied on fishing for all of their existence, have a right to survive. The new fisheries are the only way many of us have of doing this. So to us, the native groups should not have first rights over us. We as Canadians have to survive too.

When new permits are distributed, we think our communities should have first priority. It is fine to share, but how can you justify replacing one person, one community, with another?

There is one thing that government officials, elected or appointed, seem to forget time after time, and that is that they are not there to do the people's thinking or to rule the people; they are there to represent the people of this nation. In so doing, it is time they listen to what we are saying. That means DFO should be listening to the fishing communities, not telling them how things should be done.

We need all players at the table to discuss how the natives will fit into this new fishery. Under the rules and regulations that are part of DFO management, each party cannot be setting their own rules and laws. Make it quite clear—we believe, even with the Marshall ruling, especially since the November 17 clarification, the natives can participate in the commercial fishery with the fishing industry, not the other way around. This was not the natives' fishery in 1760, nor is it now. Treaties were signed for natives to be part of the fishery, not to own it. Remember, the controlling powers at the time were the British and the Province of Nova Scotia. The natives were not in charge of decision-making.

I would like to thank you.

The Chair: Thank you very much, Mr. O'Leary, for I think a heartfelt presentation.

I just have one question before we go to the committee members, and that relates to the MacKenzie process. You were basically raising some concerns with the MacKenzie process on page one. Could you be a little bit more specific on what those concerns are? You are not the only one to have raised it.

Mr. Eugene O'Leary: Basically, we feel in our community that if we are not sitting at the table with the natives in the negotiations, what is going to come down may not be what we are thinking at all. I mean, he is only going to take an interpretation of his opinions, not ours. We are not going to be given the right to argue it back and forth because we are not going to be there.

The Chair: So you are saying you are basically excluded from the direct process with MacKenzie and you are dissatisfied with that.

Mr. Eugene O'Leary: We feel this is what would happen. It is good to have your groups—Mackenzie meeting with the fishermen or MacKenzie meeting with the natives. But if you don't have the natives meeting with the fishermen at the same time, then you are going to have a problem.

The Chair: Thank you. I just wanted that point clarified, because we have to look at that.

Mr. Duncan.

• 1140

Mr. John Duncan: Thank you.

You actually clarified my first question. Are you familiar with the seven points that have been put forward by the fisheries alliance?

Mr. Eugene O'Leary: Yes, I am.

Mr. John Duncan: Does your organization endorse those seven points?

Mr. Eugene O'Leary: Yes, we do.

Mr. John Duncan: Okay. That does it for me.

The Chair: Mr. Bernier? We can come back to you anyway, Mr. Duncan.

[Translation]

Mr. Yvan Bernier: I'd like to thank the witness. Maybe I haven't heard his full presentation, but I have a question for him. I asked the same question to several witnesses this morning.

On the first page of your brief, you say that you don't believe that negotiations to determine how treaty rights can be worked out should be between the native representatives and the Department of Fisheries and Oceans alone.

Here is a question I asked other witnesses. In the light of the Marshall decision, do you think, as the Standing Committee on Fisheries has already recommended in a previous report, when it was chaired by George Baker, that it's time to ask Ottawa to review its management approach, to decentralize the system, to make it more transparent and to allow communities to have a say, so that the federal government—pardon the expression—doesn't put its foot in its mouth any longer? The people in your community have to find a way to live together on a daily basis. Ottawa is 13 to 14 hours away by car. I'd like the witness to tell us if we should take this opportunity to change our management approach. Today, the problem is with the natives, but each year, there are management problems with other participants. These problems are often known locally, but almost ignored by the central government.

[English]

Mr. Eugene O'Leary: Yes. I believe we should change the way management is handling the fisheries. We seem to have one system for both coasts, which does not seem to work very well. Although our group believes this should happen, we are not quite sure this is the exact time this should be done. We should be working on solving one issue at a time, and this would create two distinct and different issues without solving either one. You would be dealing with the change in management and dealing with the native issue at the same time, and I don't know if that is what would work the best.

But down the road in a period of time, after.... I shouldn't say that, because it could take years and years to settle the native issue. But I think we should be going at it in a two-step level.

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

[Translation]

Mr. Yvan Bernier: You say it shouldn't be left to the native representatives and the Department of Fisheries and Oceans alone to manage this thing. Who, at the local level, should participate in these negotiations? Could you tell us? Maybe you mention it later in your brief. This way, we might learn some lessons. We could use that at the second-step level, as you say.

[English]

Mr. Eugene O'Leary: We do not know exactly how that would be done. We seem to be coming together in this area of Nova Scotia, as it was in 1760, and fairly large groups have formed. In Prince Edward Island we have one group, in New Brunswick you have maybe two groups, and in Nova Scotia one or two groups.

Now, as these groups are being formed, it appears that most fishing communities are being represented by these probably five different groups, so those groups I think could do a very good job of dealing with the issue. Whether they will be reduced over time, whether they will come to an exact idea of how they will work together, I don't know. But there seem to be fairly large groups of communities and individual fishing areas involved.

• 1145

The Chair: Mr. Assadourian.

Mr. Sarkis Assadourian: Thank you very much.

I have a couple of questions. On page two, you make the statement that the Supreme Court says the federal and provincial governments have the authority to regulate. On page one, you said the federal government and DFO are uncaring about the issue.

Mr. Eugene O'Leary: You're putting two things together. I made this statement that was said in the conclusion.

Mr. Sarkis Assadourian: I want to come back to that statement.

Have you ever had a chance to have a meeting with the provincial government, or has the provincial government ever had a hearing like this, in which it expressed its point of view and you found it to be caring, and the federal government or DFO uncaring?

Mr. Eugene O'Leary: In the dealings I have had with the provincial government over the period of time I've been involved in this, I have found them to be much more open and much more caring than the federal government, yes.

Mr. Sarkis Assadourian: What did they do?

Mr. Eugene O'Leary: I found that they listened much better. If they didn't have the direct answers, they got someone there who could answer. I've gone to personal meetings with them. They have taken me to talk to the last Minister of Fisheries and to the people involved in aquaculture—as Mr. Stoffer knows, because I was talking to him about that.

I found that the provincial government—I can't talk about this present one, but the last ones under the Fisheries Act, with Greg Roach and those gentlemen—was very obliging. They did step in to help us to understand and straighten things out.

Mr. Sarkis Assadourian: For me, DFO is there to serve you and other people like you in the fishing industry. To hear you say that DFO is uncaring concerns me. It concerns me quite a bit, and that's what I'm trying to get at. What did they do to you to lead you to you conclude they're uncaring?

Mr. Eugene O'Leary: For example, I can read you this thing that came out on size increases in LFA 33, 34 and 36. I just got to read it this morning, because I just got it yesterday and didn't have a chance to look at it. It quotes Herb Dhaliwal, the Minister of Fisheries and Oceans: “I'm encouraged by the degree of cooperation we have had from the lobster industry in the past in the area of conservation”. He's making it look like we decided this is what's going to happen. We have fought tooth and nail to get them to stop doing some of the things they're doing, yet they come out and say “we” are the ones who initiated this, that “we” are the ones who planned this, but “we” didn't. They're making us do it, pure, plain and simple.

Mr. Sarkis Assadourian: Thank you.

The Chair: Mr. Stoffer was next.

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

Well, Sarkis, the light has gone on again, buddy. Congratulations. I'm sure after a couple of years with us, you'll understand that even more so.

Mr. Sarkis Assadourian: Thank you very much.

Mr. Peter Stoffer: Mr. O'Leary, I just want to know if you agree or disagree with a statement made by Arthur Bull in a previous presentation. In his brief, he said:

For many fishermen DFO's actions seem to fit a similar pattern. First, allow situation to unravel, then declare disaster, then determine that there is no consensus, and finally, impose the solution that fits DFO's corporate agenda.

I've always stated that DFO had a sort of divide and conquer mentality. In your presentation, you indicated that:

The Marshall Ruling seemed to reinforce their conviction, and even after the Marshall Ruling was clarified on Nov. 17, a DFO official told the native representative, at a meeting to discuss quotas, that they would have a priority over the fishermen vying for permits and licences.

Would you agree with Mr. Bull's previous statement that the DFO has, in essence, this divide and conquer mentality? You seem to be expressing that, although you're not saying it.

Mr. Eugene O'Leary: I'm not saying they have that mentality. They seem to have the mentality that they know what's best for us and we don't. That's one thing they seem to be telling us time and time again.

What I'm familiar with the most is lobster. We can go to the lobster advisory board and tell its members what we have learned as fisherman—some have been on the water for 50 to 55 years—and they say that's not right, because their scientists don't show them that. Well, our fishermen have shown us that, and our fishermen are on the water every day. Their scientists are not. And a lot of the things that are done in labs do not work the same way in water.

• 1150

So you may be partially right, but I don't think you can condemn a complete group of people and say they're doing that intentionally. You probably have individuals who are, but I think it's more that they don't think we can look after ourselves and that they know better.

Mr. Peter Stoffer: This is my last question for you.

We heard earlier as well from Mr. MacDonnell, a representative who has an aboriginal band in his riding. When he was speaking to the people in his riding, especially those on the reserve, he found they felt enlightened after the Marshall decision. They almost felt relieved, in a sense. That's what the aboriginal people felt. After the Marshall decision, what did your people feel like in the Guysborough area? For the ones you deal with on a regular basis, what was the reaction in that community regarding that decision?

Mr. Eugene O'Leary: We didn't really know what to think of it. Not having a band in our direct area, we had to get quite a bit more information to find out what the natives could do in our area. There was a lot of searching, especially on the geography, on the bands and on who could fish where, when and how. When we got it all straightened out, we said they have now received the right to fish from the Supreme Court on the basis of the 1760 treaty, so we have to learn to deal with it. We can't just say it's going to go away, and we just can't say we can handle it, we have to deal with it. And as I said on another part there, we feel they can be part of our fishery, not their fishery.

Mr. Peter Stoffer: Thank you.

The Chair: Mr. Muise.

Mr. Mark Muise: Thank you, Mr. Chairman.

Thank you, Mr. O'Leary. For a gentleman who initially said we should bear with you because you were nervous, you've done a fantastic job.

An hon. member: Hear, hear!

Mr. Mark Muise: I guess my questioning is in regard to Mr. MacKenzie. When Mr. MacKenzie initially came to southwestern Nova Scotia, I think a lot of people had a lot of high hopes, but I think the opposite was shown. They were really bothered with his approach, and seven weeks later terms of reference were put out.

I have two questions. Firstly, do you think the long wait in having those terms of reference brought out has led to his maybe not having the credibility or the trust of both sides, for that matter, meaning both sides of the fishery? And do you have concerns with the terms of reference themselves?

Mr. Eugene O'Leary: As far as the length of time is concerned, I don't know if that had anything to do with it. I haven't talked to the gentleman myself, and I have not met the gentleman personally at a meeting or anything, so I don't know exactly what he is like. The word I've heard is that what concerned a lot of the people was his lack of knowledge of the fishing industry, not his ability to hold meetings.

As far as the terms of reference go, we have to be at the table. That's the part that we disagree with.

The Chair: Mr. Cummins.

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

I'd like to thank you for your presentation this morning, Mr. O'Leary. I think you've done a fine job representing your people.

Mr. Chairman, I'd like to comment on and emphasize a matter that Mr. O'Leary has raised in his brief. I want to do that because I think it's important to bring this notion to the committee. Mr. O'Leary may or may not want to comment on it when I'm done, but he notes on the second page of his brief that the court ruled:

The federal and provincial governments have the authority within their respective legislative fields to regulate the exercise of the treaty right were justified on conservation or other grounds.

And I think it's important to emphasize “or other grounds.”

It then goes on to say:

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

• 1155

Mr. Chairman, if you take those quotations that Mr. O'Leary has mentioned in his brief and then look further down to the bottom of the page, where he indicates the difficulties the community has had since the cod moratorium, he says:

We have been trying to survive as communities by fighting for quotas in underutilized species such as crab, shrimp, tuna, sea urchins, and so on. We feel that our communities should be protected by allowing us to have more quotas in those fisheries, but DFO over the last number of years is intent on giving more and more to the natives.

He goes on to say that the Marshall decision reinforces the position. As I quoted above, the Marshall decision recognizes that they do have some rights. But then he says:

A DFO official told the native representative, at a meeting to discuss quotas, that they would have a priority over the fishermen vying for permits or licences.

Mr. Chairman, that is in direct contrast and conflict with the directions given by the Supreme Court in Marshall. The Supreme Court in Marshall suggests there are two balanced interests that have a right to access. In the revised decision of November 17, it doesn't suggest there is a priority access any longer, it says others have rights that are equally valid. I think Mr. O'Leary makes that point very well in his brief, and I think this committee should take note of that. To me, it represents a serious shortcoming in government policy.

You may want to comment on that, Mr. O'Leary, but I think that's a critical point that you mentioned there.

The Chair: I think we have taken note of that, and I have a question on that point as well. I circled it when we were going through it.

Can you name that DFO official? When did that DFO official make that statement? Was it prior to November 17?

Mr. Eugene O'Leary: It was after November 17.

The Chair: It was after November 17.

Mr. Eugene O'Leary: Yes, it was made at a temporary crab permit holders meeting, and I noted that he did use the word “priority”, not “treaty”.

The Chair: Okay, thank you. Is there anything further that you want to add, Mr. O'Leary?

Mr. Assadourian had one other question.

Mr. Sarkis Assadourian: Do you have a licence to fish lobster?

Mr. Eugene O'Leary: Yes.

Mr. Sarkis Assadourian: Do you think what's in the ocean belongs to you as a licence holder, or does it belong to the people of Canada?

Mr. Eugene O'Leary: It doesn't belong to me. A lot of it belongs to the community where I grew up and where I lived. When I'm done with it, I think that licence can go back to my community.

Mr. Sarkis Assadourian: So when government regulates the fisheries, do you think we should take into consideration input from ordinary Canadians if they are not fishermen or fisherpersons?

Mr. Eugene O'Leary: Yes, I think everyone should have a say in it, but I think we should have more input because we are the ones who will be directly affected. It's not someone in Toronto or Edmonton, it is the fishermen in Whitehead, Nova Scotia, or Morell, P.E.I., or wherever, who are going to be affected. They should have more input, more say, and they should be sitting at the table. If they're sitting at the table, then they will have more input and more say.

Mr. Sarkis Assadourian: So the licence you own now gives you more of a right to speak up on the issue than those who have no licences.

Mr. Eugene O'Leary: I believe so. I believe I should have more of a right because it's my livelihood. It's the same idea as the one who says a doctor should have more of a right to say how his hospital is working. I shouldn't, because I don't know about hospitals. But I do know about fishing.

The Chair: Thank you very much for your presentation and your responses, Mr. O'Leary.

The committee will meet again at 1.15 p.m. sharp today. We're adjourned until then, when the first witnesses will be from the North Shore Fishermen's Association.