The Supreme Court of Canada (SCC), in the September 17, 1999 R. v. Marshall Decision, affirmed a Treaty right to hunt, fish and gather in pursuit of a moderate livelihood, stemming from Peace and Friendship Treaties of 1760 and 1761. The Decision affected 34 Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec.

In response to the SCC Decision, Fisheries and Oceans Canada (DFO) implemented the Initial Marshall Response Initiative. This was a one-year program approved on January 25, 2000 in the amount of $159.6M to negotiate Interim Fisheries Agreements (IFAs) that provided increased First Nations (FNs) access to the commercial fishery on an immediate basis. In 2001, DFO introduced the Longer-term Marshall Response Initiative (MRI) to build upon the Initial Marshall Response Initiative. Funding of $430.2M was approved to negotiate Fisheries Agreements until March 31, 2004. In January 2004, DFO received approval for a two-year extension to the original timeframe (April 2001 to March 2004) to March 2006 providing the Department with additional time to fulfill commitments made in the Fisheries Agreements. This initiative was subsequently extended to March 31, 2007. There was no additional funding provided with these extensions.

The objectives of the evaluation were to.

Examine the relevance of the Marshall Response Initiative in relation to DFO’s strategic priorities, and meeting the needs of First Nations.
Assess the success achieved by the Marshall Response Initiative in meeting its objectives by determining the extent to which the programs' expected results have been achieved.
Assess the effectiveness of the governance, program design and delivery of the Marshall Response Initiative, with an emphasis on lessons learned.

The scope of this evaluation included National Headquarters, and the Quebec, Gulf and Maritimes Regions and covered fiscal years 2001-02 to 2006-07 and included the following activities:

Negotiations and Consultations;
Commercial Fisheries Access;
Capacity Building; and
Peaceful and Orderly Fishery.

Because of the overlap of the Initial Marshall Response Initiative with the MRI, reference is made to it throughout the evaluation.

Relevance

The evaluation concludes that the MRI is relevant to DFO and is most aligned with the Department’s strategic objective of Sustainable Fisheries and Aquaculture. The MRI, in addressing the SCC decision, also contributes to meeting the needs of First Nations.

Implementation of the MRI is consistent with the department’s priority for fisheries renewal which supports conservation and sustainable use of the fishery.

Success

The evaluation findings indicate that the MRI has been successful at achieving its objectives of:

providing Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia and the Gaspé region of Quebec with access to commercial fisheries;
assisting First Nations in building and managing their fishing activities; and
maintaining a peaceful and orderly commercial fishery

When surveyed, the First Nations were of the view that significant progress against all major objectives of the MRI have been made. The First Nations, however, did not want this progress to be interpreted as a commentary on the scope and content of their treaty rights.

Negotiation and Consultation

Agreements were reached with 30 of 34 First Nations in the Initial Marshall Response Initiative and 31 out of 34 in the Longer-term MRI. The majority of First Nations surveyed during this evaluation rated the negotiation process as predominantly satisfactory to very good. Overall, the negotiation process is considered to be successful.

On the consultation side, DFO recognized the need to consult with parties affected by the SCC Decision and Departmental officials therefore entered into discussions with those parties. In addition, the Department engaged an Assistant Federal Representative to support the Chief Federal Representative in discussions with commercial fishers and other interested parties. However, those affected by the Decision, including the commercial fishers indicated that they were not entirely satisfied with the consultation process. They did not feel they were adequately consulted in the development of the MRI or on the licence retirement aspect of the MRI.

Access

The MRI has been successful in providing First Nation communities with licences, vessels and gear in order to increase and diversify their participation in the commercial fisheries and contribute to the pursuit of a moderate livelihood through the fishery. However, the lack of consistent data on a department-wide basis (e.g., landings; active/inactive licences) does not allow for a full assessment of how well the First Nations are progressing in the utilization of the commercial fisheries access provided to them.

The evaluation findings indicate that:

The number of commercial fishing licences and vessels provided to First Nations can be quantified and it is evident that DFO has been successful in this regard.
The total number of licences issued to First Nations went from 411 in 1999 to 1143 in 2006.
First Nations communities have been provided diversified fishing access with licences allocated for over 30 species, with greater than 50% of all licences providing access to lucrative fisheries such as lobster, snow crab, shrimp and scallops.

Capacity

A significant amount of the training effort was put into the development of the day-to-day requirements to be a successful commercial fisher; however, there is a need for the development of the business skills needed to operate commercial fishing enterprises.

Through the MRI, the First Nations have contributed to the management and conservation of the resource and have been provided with the opportunity to participate in co-management activities with DFO.

A key element in how the First Nations contribute to the management and conservation of fisheries resources is the extent of their involvement in the various advisory committee processes and the development of Integrated Fisheries Management Plans. This is an area requiring further effort if First Nations are to become full participants and integrated into the commercial fishery.

Peaceful and Orderly Fishery

One of the objectives of the MRI was to forge better relations among the key groups involved in the commercial fishery thereby contributing to a stable and peaceful fishing environment. In the days and weeks following the Marshall Decision, there was much unrest in the fishery. First Nations had taken to the water and were fishing out of season and non-native fishers were uncertain about their own future in the commercial fishery. While there is still room for improvement, relations between First Nations and non-native commercial fishers have improved since 1999. In addition, the 2007 Survey of MRI First Nations indicates that over 63% of First Nations feel they enjoy improved relations with DFO.

Performance Measurement

In 2002, a Results-based Management and Accountability Framework (RMAF) was developed for the MRI providing a strategy for measuring its performance through the identification of expected outcomes. The ability to measure the impact of the MRI through the strategy identified in the RMAF relied on the collection and analysis of information from sources, both within DFO and from third parties, notably First Nations. However, despite attempts by DFO to collect information, there was limited success in obtaining the necessary performance information from First Nations, thereby limiting its ability for measuring the performance of the MRI.

The need to assess the impact of the MRI will continue not only regarding whether the MRI has fully achieved what it had been intended to do, but also as an important mechanism for both DFO and the First Nations as they enter into negotiations that could one day lead to long term arrangements under the Department of Indian Affairs and Northern Development (DIAND) process. Also, as part of good management practices for a business, it is necessary for the manager of that business to know whether they are achieving their goals or not. To assist them in doing this, it would be appropriate to stress upon the First Nations the benefits of measuring their performance and providing performance information to DFO.

Effectiveness

Governance. The governance structure put in place to implement the MRI was considered to be appropriate.
Program Design and Delivery. The Marshall Decision had not been anticipated and there is no evidence that DFO had put in place any contingency plan in the event that Mr. Donald Marshall was successful in his appeal of the lower courts’ decisions. Had there been any contingency plans in place, DFO may have been able to avoid some of the issues it faced in the days and weeks subsequent to the Decision. Since that time, a Departmental Legal Risk Management Committee (LRMC) has been established to manage legal issues and litigation matters involving DFO.

Effectiveness Conclusion

Despite the challenges, faced in the delivery of the MRI, such as the lack of any contingency planning and unrest in the fishery, it is considered that the delivery mechanism used by the Department was the most effective one that could have been used given the circumstances.

Unintended Impacts

Following are a number of unintended impacts from the MRI that were identified during the evaluation.

Small Craft Harbours Directorate. DFO’s Small Craft Harbours Directorate was faced with unexpected costs resulting from the increased demands on certain harbours.
Increase in License Retirement Costs. Costs relating to the retirement of commercial fishing licences increased as a result of the demand created by the requirement to provide access to the commercial fishery to the First Nations.
Fishing Outside of Traditional Areas. Traditionally, non-native commercial fishers have fished in "unofficial zones" within their respective fishing areas. These "unofficial zones" have been passed on from generation to generation and have defined where the commercial fishers would fish. The non-native fishers expected that the First Nations would respect these traditional fishing areas thus avoiding any additional effort in any one particular harbour and species. When this did not happen in all cases, some tension and potential for conflict were created between First Nations and non-native fishers where it did take place. In addition to this situation, some First Nations were not welcomed in some of these "unofficial zones" by some non-First Nation fishers.
"Royalty Charters". Royalty chartering occurs when a licence holder hires other fishers to fish the quota assigned to that licence. This situation is occurring, in some cases, with respect to the licences and quota provided to First Nations through the MRI. While the evaluation team could not quantify the exact number of licences that are being fished on behalf of First Nations, both DFO staff and representatives of commercial fishers raised royalty fishing as a concern.
Relationships between First Nations. The 2007 Survey of MRI First Nations reports a significantly higher improvement in relationships among First Nations. This is a very positive development. As First Nations progress in the commercial fishery, it will be essential for them to work together to become successful.

Recommendations

The ADM, Fisheries and Aquaculture Management (FAM) and the Regional Directors General of Maritimes, Gulf and Quebec Regions, reconcile current inventory of all licences issued to the First Nations under the MRI (Initial and Longer-term) and address any gaps in databases. This will assist in managing future aboriginal programs such as the Atlantic Integrated Commercial Fisheries Initiative (AICFI) and determining future requirements (e.g. training) of the First Nations.
The ADM, FAM, in implementing AICFI, take into consideration the need for:
1. Improving the level of participation of First Nations in the advisory committee and Integrated Fisheries Management Plan processes.
2. Further efforts to be made in improving the skills of First Nations in the management of commercial fisheries enterprises so that the assets provided to them can be used to their full potential.
The ADM, FAM continue to assess the progress being made by the First Nations in the commercial fishery to determine if DFO has achieved the intended objectives of the MRI over the longer-term.
The ADM, FAM stress upon the First Nations the benefits of measuring their performance and providing performance information to DFO. This could be done through training provided under AICFI.

2.0 Introduction

2.1 Background

The Supreme Court of Canada (SCC), in the September 17, 1999 R. v. Marshall Decision, affirmed a Treaty right to hunt, fish and gather in pursuit of a ‘moderate livelihood’ stemming from Peace and Friendship Treaties of 1760 and 1761. The Decision affected 34 Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec. The SCC also affirmed the Minister of Fisheries and Oceans Canada (DFO)’s ability to regulate the exercise of the treaty right subject to the requirement that any infringement of the treaty right be justified.

To address the SCC decision, DFO immediately began the process of acquiring and transferring access to the First Nation communities. The Decision did not include an implementation period during which the Department could have developed a long term strategy for the acquisition of access.

The First Nation communities viewed the SCC Decision as a confirmation of their right to fish on a commercial basis. However, DFO was still responsible for maintaining the proper management and regulation of the fishery. The First Nation communities began fishing immediately following the Decision and had intended to fish when the 2000 spring commercial fisheries opened whether or not they had been provided access through licences by DFO. To minimize conflicts on the water between First Nation and non-First Nation fishers that would result should First Nation fishers fish without valid licences and the possible negative impacts on the resource that could result from unregulated fishing, it was essential that negotiated agreements which provided access be put in place. Once these agreements were reached, DFO had an obligation to provide the access that had been negotiated in the fisheries agreements with the First Nations.

In response to the SCC Decision, DFO implemented the Initial Marshall Response Initiative. This one-year program was funded in the amount of $159.6M to negotiate Interim Fisheries Agreements (IFAs) that provided increased First Nations access to the fishery on an immediate basis.

The Initial Marshall Response Initiative was composed of two components, the Fisheries Access Program (FAP) and Co-Management. The FAP component relied on an approach of voluntary retirement of commercial licences. The co-management component was oriented to preparing First Nations members to become successful commercial fishers. It also assisted them in becoming participants in managing the commercial fishery.

When the SCC rendered its Decision, DFO immediately set out to develop an operational framework to address the Decision. A Chief Federal Representative (CFR) was appointed to work on behalf of the federal government to negotiate one-year agreements and an Assistant Federal Representative (AFR) was appointed to ensure that the views of the non-native commercial sector and other interests were taken into account during the process. The Initial Marshall Response Initiative also sought to build the First Nations’ capacity for management of fishing activities and to provide for fisheries-related commercial development. DFO officials began working with First Nations, commercial fishers and others to ensure that conservation was not compromised.

During the Initial Marshall Response Initiative, DFO also developed the Longer-term Marshall Response Initiative to increase First Nations access to commercial fisheries and to negotiate capacity building, training and other measures to maximize the benefits from that increased access. DFO also worked with non-First Nations commercial fishers who wanted to voluntarily retire their licences in order to make room for new Aboriginal entrants without putting more pressure on the fishery resource.

In 2001, DFO introduced the Longer-term Marshall Response Initiative(MRI). This program built upon the Initial Marshall Response Initiative and received approved funding of $430.2M to enable negotiations of Fisheries Agreements until March 31, 2004. The objectives of the MRI were to:

provide Mi’kmaq and Maliseet First Nations in New Brunswick, Prince Edward Island, Nova Scotia and the Gaspé region of Quebec with access to commercial fisheries;
assist First Nations in building and managing their fishing activities; and
maintain a peaceful and orderly commercial fishery.

In January 2004, DFO received approval for a two-year extension to the original timeframe (April 2001 to March 2004) to March 31, 2006, providing the Department with additional time to fulfill commitments identified in the Fisheries Agreements. The MRI was subsequently extended to March 31, 2007. There was no additional funding provided with these extensions.

By March 2004, DFO had entered into Fisheries Agreement with 31 of the 34 First Nations eligible under the MRI. In 2005, DFO entered into a contribution agreement with an additional First Nation. DFO was unable to reach agreement with the remaining two First Nations primarily because these First Nations did not wish to enter into arrangements that, they believed, may infringe on their treaty rights.

When reading this report, it is necessary to understand the environment under which the SCC Decision was rendered and the challenges faced by Departmental staff in addressing it. Once the Marshall Decision came down in September 1999, the MRI was developed and implemented within a very short timeframe and under difficult conditions. While some problems did subside after the Initial MRI, there was still a potential for confrontation throughout the implementation of the program. Despite this, DFO staff responded by continuing to address these matters and successfully implementing the Longer-term MRI.

This report presents the findings of the Summative Evaluation of the MRI. This report builds upon the Interim Evaluation of the MRI that was conducted in 2005-06 and presents progress that has been made since the program’s implementation.

2.2 Objectives and Scope

The objectives of this summative evaluation were to:

Examine the relevance of the MRI in relation to DFO’s strategic priorities, and meeting the needs of First Nations.
Assess the success achieved by the MRI in meeting its objectives by determining the extent to which the program’s expected results have been achieved.
Assess the effectiveness of the governance, program design and delivery of the MRI, with an emphasis on lessons learned.

The scope of this evaluation included the activities that came under the responsibility of DFO:

Negotiations and Consultations;
Commercial Fisheries Access;
Capacity Building; and
Peaceful and Orderly Fishery.

The evaluation included National Headquarters, Quebec, Gulf and the Maritimes Regions and covered fiscal years 2001-02 to 2006-07. Because of the overlap of the Initial Marshall Response Initiative, reference is made to it throughout the evaluation.

The following evaluation issues were included in the scope of the evaluation:

Relevance

To what extent has the MRI contributed to the achievement of DFO’s strategic objectives?
To what extent did the MRI meet the needs of First Nations?

Success (Access, Capacity Building, Peaceful and Orderly Fishery)

Access

To what extent has the MRI contributed to the ability of First Nations to be successful participants in the fishery?
- To what extent has the MRI contributed to First Nations having increased and diversified access to the commercial fishery?

Capacity Building

Through the MRI, how have First Nations contributed to the management and conservation of the resource?
How has the MRI increased co-management activity between DFO and First Nations?
- To what extent has the MRI assisted in increasing First Nations participants in various fisheries projects?
How has the MRI contributed to improving skills and management capacity of First Nations Members?
- To what extent have the First Nations improved their skills to fish safely and to manage and administer fisheries enterprises?

Peaceful and Orderly Fishery

To what extent has the MRI contributed to a Peaceful and Orderly fishery?
- To what extent has the MRI contributed to improved relations among DFO, First Nations and non-native commercial fishers?

Effectiveness

The evaluation assessed the effectiveness of the governance, program design and delivery of the Marshall Response Initiative, with an emphasis on lessons learned.

2.3 Methodology

In accordance with best practices, the evaluation approach involved the use of multiple lines of evidence, including:

Document and File Review

Key documents were reviewed at HQ and in the three regions including literature on the program, correspondence records and data systems. Finally, media clippings that provided information about public perceptions related to the MRI were reviewed.

Interviews

Interviews were conducted with DFO officials (past and present) who had an involvement in the MRI design and implementation. Interviews were also conducted with representatives of First Nations as well as with representatives of non-native commercial fishers during the evaluation. In total, 61 individuals were interviewed or consulted.

2007 Survey of MRI First Nations

A key methodology that was followed in this evaluation was a survey of 34 Maliseet and Mi’kmaq First Nations located in Nova Scotia, New Brunswick, Prince Edward Island and Quebec. Of these, 19 responded representing slightly over 70% of the Maritime and Quebec First Nations population affected by the Marshall Decision.

As well, in-depth interviews with First Nation representatives, and research and analysis from sources within DFO, Statistics Canada and the Department of Indian Affairs and Northern Development (DIAND) were conducted to complement and contextualize the survey findings.

Methodology Limitations

The evidence available to assess the expected outcomes of the MRI is limited. DFO relied on the First Nations to provide information on their activities and in support of projects that they had undertaken. This information was not always on file despite the fact that the agreements required the First Nations to provide such information to DFO. The issue surrounding reporting by First Nations is not uncommon. As capacity varies among First Nations, so too does the quality of the information provided to the Department.

In addition, information that the evaluation team expected to find in files and information systems on a department-wide basis to assist in measuring and assessing program performance was not available or not in a consistent format that was useful to the evaluators, (e.g., landings information; quota information and licence data). Had such information been available, it would have allowed the evaluators to do a more complete assessment of the utilization of commercial access that had been transferred to First Nations.

3.0 Observations and Recommendations

In 2002, a Results-based Management and Accountability Framework (RMAF) was developed for the MRI. The performance measurement component of the RMAF outlined activities, expected results, indicators by which to measure those results, data sources, methods and processes for reporting on performance. After the interim evaluation, the RMAF was reviewed for its continued relevance and revised as required. The expected results identified in the RMAF form the basis used to assess the progress made during the implementation of the MRI.

3.1 Relevance

Overview

One of the objectives of the evaluation was to assess the relevance of the MRI in terms of contributing to the achievement of DFO’s strategic objectives as well as meeting the needs of the First Nations in relation to the SCC Decision.

To what extent has the MRI contributed to the achievement of DFO’s strategic objectives?

DFO has three strategic objectives that it strives to achieve: Safe and Accessible Waterways; Sustainable Fisheries and Aquaculture; and Healthy and Productive Aquatic Ecosystems. The strategic objective that the MRI is most aligned with is Sustainable Fisheries and Aquaculture.

The Fishery Access Program (FAP) component of the MRI was premised on the voluntary retirement of commercial licences, which would not result in additional pressure being put on the resources as a result of providing access to the First Nations. Implementation of the MRI is consistent with DFO’s priority for fisheries renewal which supports conservation and sustainable use of the fishery.

To what extent did the MRI, in addressing the SCC Decision, meet the needs of First Nations?

The evaluation assessed the extent to which the MRI has addressed the needs of First Nations in accordance with the SCC Decision. At the core of the Decision, the Supreme Court affirmed a treaty right to hunt, fish, and gather in pursuit of a "moderate livelihood", based on local treaties signed in the eighteenth century.

To address the SCC Decision, the Department put in place a process to negotiate access with eligible First Nations. It was through this process that DFO, by providing access to the commercial fishery, would contribute to the pursuit of a "moderate livelihood" through the fishery. DFO’s position was that in providing First Nations access to the commercial fishery, it was providing the potential to pursue a "moderate livelihood".

When surveyed, the First Nations were of the view that significant progress against the objectives of the MRI have been made. Even though the First Nations had higher initial expectations and continue to face challenges and unique demographic pressures to extract the most benefit from their participation in the commercial fishery, they are confident that real progress is being achieved. The First Nations, however, did not want this progress to be interpreted as a commentary on the scope and content of their treaty rights.

Relevance Conclusion

The evaluation concludes that the MRI is relevant to DFO and is consistent with DFO’s strategic objectives as well as meeting the needs of First Nations in responding to the SCC Decision.

3.2 Success

Overview

The focus in this section is on the degree to which the MRI’s expected outcomes have been attained. This was assessed by measuring the extent to which results have been achieved against the outputs and outcomes established as part of the MRI’s RMAF.

Evidence to measure attainment of the MRI objectives and expected outcomes is drawn from interviews, file reviews, analysis of statistics available within DFO and from the 2007 Survey of MRI First Nations.

This section is organized according to the components of the MRI as outlined in the RMAF:

Negotiations and Consultations
Commercial Fisheries Access
Capacity Building
Peaceful and Orderly Fishery

3.2.1 Negotiations and Consultations

On October 15, 1999, the then Minister of Fisheries and Oceans appointed a Chief Federal Representative (CFR) to work on behalf of the federal government to secure practical arrangements that would accommodate First Nations’ interests in the fishery, while ensuring its orderly management. In November 1999, the Minister also appointed an Assistant Federal Representative (AFR) to support the CFR in discussions with commercial and other interests. Both the CFR and AFR were appointed to their positions at an unstable time in the history of the Marshall Response Initiative. It was only a few weeks after the SCC Decision and confrontations on the water had already begun. Some First Nations in New Brunswick and Nova Scotia had taken to the water to fish commercially while the non-native commercial fishers were in a state of uncertainty regarding their future role in the commercial fishery and the impact that the Marshall Decision would have on them.

The negotiations and consultations on behalf of DFO were led by the CFR and the AFR with the support of DFO employees. Agreements were driven by the individual Bands who submitted proposals outlining their requirements. The primary goal of the CFR was to enter into arrangements to ensure that an orderly fishery was established and maintained and to accommodate First Nations in the fishery in a manner that was sensitive to the interests of others who depended on the fishery. For the Initial Marshall Response Initiative, the CFR was successful in negotiating Interim Fisheries Agreements (IFAs) with 30 of 34 of the First Nations affected by the Marshall Decision. Considering the environment that existed following the SCC Decision, this must be considered a success.

The IFAs set the ground work for the Longer-term Marshall Response Initiative and while the task did not become any less challenging, there was a starting point based on what had already been negotiated in the initial response to the SCC.

The negotiation process provided an opportunity for First Nations to actively articulate and develop their vision for their future participation in the fishery. The result of this process was successful negotiation of Fisheries Agreements with 31 out of 34 First Nations. The 2007 Survey of MRI First Nations indicated that 65% of First Nations rated the negotiation process as predominantly satisfactory to very good.

The views and concerns of the non-First Nations commercial fishers were sought through the liaison and consultation processes carried out by the AFR and were conveyed to the CFR and DFO for consideration in establishing the Marshall Response Initiative. Meetings involving senior DFO officials and commercial fishermen also took place. Interviews by the evaluation team with representatives of commercial fishers indicated that they were not entirely satisfied with the consultation process. They did not feel they were adequately consulted in the development of the MRI or on the licence retirement aspect of the MRI. They did not believe that their concerns had been adequately addressed during the process. While the AFR was engaged to support the CFR in discussions with commercial and other interests, the commercial fishers’ representatives did not believe this process gave them direct access to the decision makers nor did they have assurances that their messages were being passed on to the appropriate people. DFO staff reported that the AFR was transparent and brought forward the concerns and suggestions of the non-First Nation commercial fishers to the Department.

While DFO recognized the need to consult with commercial fishers and other interested parties, it was done after the SCC ruling was issued. Nobody was prepared for this ruling and consequently there was much uncertainty on the part of the commercial fishers. Had DFO been able to enter into discussions with the commercial fishers prior to the SCC Decision, then concerns about their future in the commercial fishery may have been alleviated. As will be seen in other parts of this document, relations between commercial fishers and First Nations have improved since the implementation of the MRI, however, in their view (i.e. commercial fishers), any difficulties that still exist stem from the initial response to the Marshall ruling and the uncertainties that existed at the time.

Negotiations and Consultations Conclusion

Negotiations of fishing agreements with First Nations took place under difficult circumstances. Nevertheless, agreements were reached with 30 of 34 First Nations in the Initial Marshall Response Initiative and 31 out of 34 in the Longer-term MRI. In addition, the majority of First Nations surveyed during this evaluation rated the negotiation process as predominantly satisfactory or very good. Overall, the negotiation process is considered to be successful.

On the consultation side, DFO recognized the need to consult with parties affected by the SCC Decision. It went so far as engaging an AFR to support the CFR in discussions with commercial fishers and other interested parties. However, the commercial fishers indicated that they were not entirely satisfied with the process.

3.2.2 Access

Overview

The key requirement following the SCC Decision was to provide immediate commercial fishing access to the 34 eligible First Nations. Providing access had been broadly defined under the fisheries access component of the MRI to include the physical resources associated with fishing, such as licences, quotas, vessels and equipment. To address the SCC Decision, the Department immediately began the process of acquiring and transferring access to the First Nation communities. The Decision did not include an implementation period during which the Department could have developed a long term strategy for the acquisition of access.

Because the fishery was fully subscribed, the main vehicle used by the Department to provide the First Nations with the fishery access that had been committed to them in the fisheries agreements was through a voluntary licence retirement program.

The licence retirement approach was the most practical one to take as it addressed concerns over the conservation of the fisheries resources and was acceptable to all parties involved in the process. Licences retired by non-native licence holders were issued to First Nations as communal-commercial licences – meaning that licences were held under the name of the First Nations community rather than under the name of a specific person.

To what extent has the MRI contributed to the ability of First Nations to be successful participants in the fishery?

Since the SCC ruling, DFO has worked with First Nation communities to increase their access to commercial fisheries and to negotiate capacity building, training and other measures to maximize their benefits from increased access.

Licences

Licences for species were provided through the MRI negotiations process at the beginning of MRI. During the negotiations process, First Nations decided what licences they wanted based on (in most cases) a limited knowledge of the fishery and some advice from DFO. After obtaining some licences during the Initial Marshall Response Initiative and gaining a realistic perspective of the fishing industry, First Nations became more knowledgeable in assessing what species were profitable/feasible for them to fish in the long-term, which would have contributed to their requests for certain species of licences during the Longer-term MRI.

From 1999 – 2003 there was a significant increase in the number of licences provided to First Nations. Since 2003 there has been a slight decrease in the number of licences issued to First Nations but there has been a gradual increase in the collective number of licences in lobster, shrimp, scallop and crab. This could be because First Nations have chosen to utilize licences for species that have the highest rate of return for their community. Below is a table of the licences issued to First Nations during the MRI.

Figure 1. Table of licences issued to First Nations:

Follow this link to go to the Table of licences issued to First Nations

Source: Complied on September 4, 2007 using data provided by Quebec, Gulf and Maritimes Regions
Note: Other includes Marine Plant, Marine Worm, Mussels, Quahaugs, Seal, Shad, Shark, Silverside, Squid, and Swordfish

Vessels

In addition to providing licences, DFO also provided vessels to the First Nations. Without vessels, most First Nations communities would not have had the means to fish their newly acquired licences. The following table shows the number of vessels that have been allocated to First Nations under the MRI.

Figure 2. Vessels Allocated to First Nations during MRI

	Maritimes		Gulf		Quebec		TOTAL
	NEW	USED	NEW	USED	NEW	USED	TOTAL
Initial	21	17	41	34	0	15	128
Longer-Term	16	44	44	42	5	16	167
Total	37	61	85	76	5	31	295

Source: NCR Headquarters Aboriginal Policy and Governance Directorate

Economic Return

The potential economic return from licences issued to First Nations in 2000 was $15 million. In 2006, this potential economic return of current licences was $45 Million. This 200% increase represents a significant benefit to the First Nations communities and is a reflection of the impact that the MRI has had on them.

Inconsistencies in Data Collection

While it can be clearly demonstrated that the MRI has been successful in providing First Nations with access to the commercial fisheries, the evaluation team was unable to provide a definitive statement on the extent to which First Nations are utilizing the access provided to them. Although each region provided the evaluation team with much information, the inconsistency in the manner in which DFO defines, collects and manages data did not permit for a complete analysis by the evaluation team regarding the performance of the First Nations in the commercial fishery.

The evaluators’ attempt to show comparisons between First Nations active and inactive licences as well as between the quotas allocated to First Nations and the amount landed has been futile. These types of analyses would be useful to DFO staff to assist in considering any requests for additional commercial access by First Nations or for use in future treaty negotiations. This information could also be used in identifying future training needs for the First Nations.

In 2006-07, DFO’s Audit and Evaluation Directorate conducted an internal audit on the Management Control Framework Supporting Statistical Information on Fisheries. This audit identified weaknesses in the collection and management of statistical information in DFO. Some of the key findings of that audit included:

Accountability for coordinating the development of an integrated departmental database of regional statistical information on the fisheries is unclear; and
Detailed requirements for integrated departmental statistical information on fisheries (SIF) database have not been formally updated. Initiatives to enhance the integration of SIF at the departmental level require the completion of a comprehensive analysis of requirements before proceeding.

The Department has put in place a Management Action Plan (MAP) addressing the findings in the audit report. Implementation of the MAP should be a significant step in addressing the weaknesses in data collection and reporting in DFO.

To what extent has the MRI contributed to First Nations having increased and diversified access to the commercial fishery?

The evaluation has determined that the MRI has been successful in providing diversified commercial fisheries access to First Nations. This is supported by the provision of:

an increased number of licences in a variety of species
vessels and gear to First Nations so that they have the means to use the licences provided

Over time, First Nations have become more involved in the fishery and have become more aware of the importance of diversification. First Nations communities have been provided diversified fishing access with licences allocated covering over 30 species. In all regions, First Nations have increased their access to lucrative fisheries such as lobster, crab, shrimp and scallops. Greater than 40% of all licences issued to First Nations include access to one or more of these species.

Access Conclusion

In conclusion, the MRI has been successful in providing First Nations communities with licences, vessels and gear in order to increase and diversify their access in the commercial fisheries. This access has provided First Nations with the opportunity to utilize the access to the commercial fisheries and contribute to the pursuit of a moderate livelihood through the fishery. However, the lack of consistent Departmental data on access does not allow for a full assessment of how well the First Nations are progressing in the utilization of the commercial fisheries access provided to them.

Recommendation

It is recommended that the Assistant Deputy Minister, Fisheries and Aquaculture Management and the Regional Directors General of Maritimes, Gulf and Quebec Regions:

Reconcile current inventory of all licences issued to the First Nations under the MRI (Initial and Longer-term) and address any gaps in databases. This will assist in managing future aboriginal programs such as the Atlantic Integrated Commercial Fisheries Initiative and determining future requirements (e.g. training) of the First Nations.

3.2.3 Capacity

Overview

The capacity component of the MRI was designed to support First Nations communities in the development and implementation of fisheries plans, in the creation of a cadre of professional harvesters, fishing selectively in keeping with the DFO’s precautionary, conservation-based approach to fisheries management and in building a capability of operating on an environmentally and commercially sound basis.

Training programs were developed to provide for safe and successful entry of new fishers into commercial fishing operations. In addition to training, funding was provided to allow First Nations to build the infrastructure needed for commercial fishing and to receive training for the management and administration of commercial fisheries. Together, training and infrastructure were intended to build upon the licences allocated to First Nations (identified in the access component of the MRI) in order to give their members the opportunity to use their skills to develop commercial fishing operations as an employment tool contributing to the pursuit of a ‘moderate livelihood’.

Through the MRI, how have First Nations contributed to the management and conservation of the resource?

DFO provided funding to help First Nations community members become more involved in the management of the fisheries, as well as in science and habitat projects. Involvement in such initiatives gives First Nations increased opportunities to contribute to the management and conservation of the fishery, and to the sustainability of the resource.

Awareness

DFO has assisted First Nations in becoming more aware of the role they should play in the ongoing management and conservation of the fishery. DFO officials have worked with First Nations members, commercial fishers and others to ensure that conservation is not compromised while at the same time developing productive working relationships.

Under the MRI, part of the issue of conservation relates to scientific knowledge acquired through First Nations participation in science projects. The information available on science projects substantiates the importance of DFO's responsibility towards the First Nations and the contribution made towards meeting MRI goals. In the Maritimes Region, for example, the evaluation found that the scientific program put in place contributed to awareness of the need for conservation of the resource. The regional science branch fostered good working relationships with a number of First Nations leading to an opportunity for addressing areas of mutual concern.

In the Gulf Region, several First Nation communities have taken a leadership role in the assessment of some Atlantic salmon stocks through in-season monitoring and fish tagging activities.

Advisory Committee Process

A key element in how the First Nations contribute to the management and conservation of fisheries resources is the extent of their involvement in the various advisory committee processes and the development of Integrated Fisheries Management Plans. The evaluation found contradictory views on this issue based on the information provided by DFO, the 2007 Survey of MRI First Nations and the consultations carried out with representatives of commercial fishers.

In the 2007 Survey of MRI First Nations, 66% of respondents reported being actively involved in DFO’s advisory processes. DFO staff indicated that there was not a high rate of participation by the First Nations in the advisory committee meetings. Review of the minutes and participant lists of advisory committee meetings by the evaluation team confirmed this. Some concerns were raised by regional DFO staff that the First Nations may have been overwhelmed or intimidated by the technically demanding nature of advisory committee deliberations.

Consultation with representatives of commercial fishers during the evaluation also indicated that First Nations do not actively participate often enough in the advisory committee processes. The view expressed by the representative was that First Nations do not participate frequently and they are "noticeably absent" from meetings. The commercial fishers representatives would like to see a more active First Nation involvement in the committee processes and they also expressed the view that First Nation participation would further facilitate their integration into the commercial fisheries.

In 2007, a study was commissioned by DFO’s Gulf Region aimed at getting a better understanding of the issues surrounding the management of the snow crab fishery in the Gulf of St. Lawrence and to facilitate First Nations involvement in the ongoing DFO advisory process with all stakeholders.

The study found that First Nations were not comfortable with the advisory committee process be it for snow crab or other species. The study indicated that:

the First Nations felt out of place not having the background, knowledge and experience that a lot of the members of the fishers’ organizations had;
the First Nations did not understand most of the conflicting views and debates among the different stakeholders;
some First Nations felt tolerated at the meetings by some of the participants but were begrudgingly accepted by others.

The study concluded that it is going to take time before First Nations feel comfortable in fully participating in any advisory process involving all stakeholders and it may never happen unless special efforts continue to be carried out by DFO to facilitate integration.

The evaluation team has come to the same conclusion, realizing that for a certain period of time special consideration/attention may have to be given to First Nations with regards to the advisory committee process but it should not be at the expense of their integration into the commercial fishery. It would not be beneficial to an integrated commercial fishery to have one advisory committee process for the non-native fishers and another for the First Nations. Consideration could be given under the AICFI to address the need for increased participation in the advisory committee processes.

Threat to Conservation

One of the issues that was raised by representatives of commercial fishers as an area of concern was that some First Nations would abandon their traps and gear in the water after the close of the fishing season. This practice could result in fish getting caught up in the equipment and not being able to escape. This raises a threat to the conservation of the fisheries resources and could impact the future fish stock abundance. This shortcoming may be the result of a lack of experience of some First Nations fishers or a lack of awareness of the consequences of not removing their equipment at season’s end.

How has the MRI increased co-management activity between DFO and First Nations?

DFO’s Policy Framework for Atlantic fisheries defines "co-management" as "the sharing of responsibility and accountability for results between DFO and resource users". The evaluation found that the MRI has provided considerable commercial fishing benefits to the First Nations and as a result, it has yielded a significant increase in the number of opportunities for First Nations to engage in commercial fisheries co-management in comparison to the period prior to the MRI.

Science Activities

In Science, three main areas: communication and outreach; partnership and training; and special initiatives led to the integration of Aboriginal Traditional Knowledge (ATK) into current DFO scientific methods as evidenced in such collaborative projects as stream clearing.

In the Gulf Region, Science Awareness Days (SAD): an educational activity which is a cooperative effort between First Nations communities, DFO and Educational Institutions to provide a better understanding of the role of science within the fishing industry was instituted, while in the Maritimes Region, a Mi’Kmaq Science Cultural Camp was established. This Camp also serves as the medium for holding meetings with First Nations communities and presenting to First Nations communities and schools material developed on commercial fishery species and on the role of DFO’s Science Branch.

Under the MRI, the Maritimes Region has also been involved with FN in numerous science-related initiatives. One example is the Departmental and community based Research regarding Aboriginal Recruitment where the Science Branch (Diadromous Division) entered into a Joint project agreements with St. Mary’s and Woodstock First Nation Bands in order that band members can acquire base skills and interest in formal training in hatchery/aquaculture operation.

Partnerships and relationship building were enhanced for example in the Quebec Region where a project for fishery data monitoring on snow crab, lobster and rock crab with First Nations students was created, coupled with such activities as lobster tagging projects with the objective to determine migration patterns and growth rates of lobster.

There was also evidence of First Nations members and non-native commercial fishers collaborating on joint activities. For example, in the Gulf Region, a partnership effort between the First Nations community, the Province of New Brunswick, DFO, and Maritime Fishermen’s Union (MFU), in an ecological research program (Lobster Ecology and Enhancement Study), regarding the production of stage IV lobster larvae and enhancing lobster fishing grounds was carried out.

These joint efforts, involving DFO, First Nations, non-native commercial fishers and a province demonstrates the progress that has been made in the co-management of the fisheries during the implementation of the MRI.

In terms of management participation from a First Nations perspective, the 2007 Survey of MRI First Nations indicated that 86% of First Nations agreed that the MRI had created the opportunity for more meaningful involvement in management activities. Over half felt that traditional knowledge was being considered more in fisheries management and that 68% felt that First Nations capacity to take up the opportunity of management participation had been improved under the MRI.

How has the MRI improved the skills and management capacity of First Nations’ members?

The focus of DFO’s response to the SCC Decision was to provide immediate access to the commercial fisheries to the First Nations. The initial demands of the First Nations were for the acquisition of licences and not as much attention was given to ensuring that all First Nations members had the proper training prior to going fishing. Training was part of the negotiated package, along with the provision of vessels, gear and licences. Had circumstances permitted, training would have been given priority over providing immediate access. However, there was no clearly specified implementation period for the Marshall Response Initiative during which this could have been done. In addition, the unstable environment that existed at the time dictated that access be provided immediately.

Training was provided to First Nations fishers by way of funding ($21M) included in the Fisheries Agreements signed with the Bands. Training included captain and deckhand training as well as practical skills related to navigation, marine safety, equipment repair and maintenance. There was not however, any coordinated approach to training. While the interests of First Nations were addressed during negotiations, there was no evidence of DFO conducting any needs assessments of what training was required by the First Nations fishers prior to the funding arrangements being entered into.

Since 1999, an estimated 2000 First Nations community members have been trained covering a broad range of practical fishing skills. There is no evidence to indicate how many of those trained subsequently ended up being employed in the fishery or related industries.

Another vehicle for training was through a Mentor Training and Certification Program. This program was put in place and administered by DFO and resulted in 80 experienced fishers (20 non-aboriginal technical advisors and 60 native mentors) trained and certified as First Nations Fisheries Mentors. Approximately 300 First Nation people were trained as deckhands through the mentorship process.

A Mentor Deployment Pilot Program, administered by DFO, provided 217 First Nations members with on-the-job training related to safety at sea, basic seamanship, fishing skills, watch-keeping duties and other harvesting-related tasks. In addition, 249 captains and crew were trained in vessel maintenance and winterization.

In the 2007 Survey of MRI First Nations, the First Nations indicated general satisfaction with the quality and effectiveness of the training that they had received. On a scale of 1 to 10, training was rated in the 6 to 8 range.

Even though considerable effort has gone into the training initiatives for First Nations fishers, it is recognized that further training is required. A significant amount of the training effort had been put into the development of the day-to-day requirements to be a commercial fisherman. A weakness in the training cycle is the development of the business skills needed to operate commercial fishing enterprises successfully. If First Nations are to continue to develop their capacity in the commercial fishing industry, then training in this area will be required. This type of training will assist the First Nations in expanding their capability to operate and manage their commercial fishery and to better participate with other harvesters in managing an integrated commercial fishery.

To what extent has the MRI contributed to the opportunity for First Nations to be active in articulating and developing their vision for their future in the fishery?

The MRI has provided First Nations with increased opportunities to broaden their involvement in the commercial fishery and to be active in planning their future in the fishery. It has contributed to sustainability of the resource and improved management and conservation of the fishery. Further, by providing funding to create and fill planning roles (such as fisheries co-ordinators for each First Nations community), DFO assisted First Nations in developing the human capital necessary to manage and administer their commercial fishery successfully. First Nations community members filling planning roles also gain broader business management and public administration skills which will play a key role in the long term development and sustainability of the fishery within these communities.

While some communities have progressed further and faster than others in articulating and developing their vision for the future others still require assistance and time. An example where First Nations has progressed in planning for their future in the commercial fishery is cited in the book entitled "Fisheries Management: Progress Towards Sustainability"^[1]. This publication outlines a case study that confirms that "After the Marshall decision, the PEI First Nations began a process of planning their participation in the communal livelihood fishery" where they "set up internal consultations to determine the desired vision for their fishery and to develop band-level management systems." The review shows that "the Mi’kmaq Confederacy of PEI which coordinated this vision development among the Abegweit and Lennox Island bands established," among other things, the "development of commercial fishing ventures that will provide band members with stable and effective employment, such as providing incomes sufficient to meet the moderate needs of fishers and their families."

The evaluation found that while there has been some success in this area, limited training prevents First Nations from having the capacity to manage and maximize the access to the fishery that the MRI has provided. Training was provided on how to manage fishing enterprises; however, additional training in this area would be beneficial to the First Nations. This type of training would help develop and deliver business planning related to managing First Nations fisheries enterprise, and developing sound fisheries management practices. This could include asset management and eventual replacement, human resource policies and an increased capability to effectively engage in consultative fisheries management processes.

Capacity Conclusion

Through the MRI, First Nations have contributed to the management and conservation of the resource. Since the program’s inception, DFO has been promoting responsible management of the fishery. In addition, First Nations have been provided with the opportunity to participate in co-management activities with DFO.

Significant opportunities for training were given to First Nations. Despite the significant amount of the training effort that had been put into the development of the day-to-day requirements to be a commercial fisherman, there is a need for the development of the business skills needed to operate commercial fishing enterprises so that the First Nations can maximize the fisheries access and assets provided to them under the MRI to their full potential. If First Nations are to continue to develop their capacity in the commercial fishing industry, then additional training in this area will be required.

A key element in how First Nations contribute to the management and conservation of fisheries resources is the extent of their involvement in the various advisory committee processes and the development of Integrated Fisheries Management Plans. While there are mixed messages about First Nations involvement in the advisory committee process, it is an area requiring improvement if First Nations are to become full and equal participants and their fishing activities integrated into the commercial fishery.

Recommendations

It is recommended that:

The ADM, Fisheries and Aquaculture Management, in implementing AICFI take into consideration the need for:
1. Improving the level of participation of First Nations in the advisory committee and Integrated Fisheries Management Plan processes.
2. Further efforts to be made in enhancing the skills of First Nations in the management of commercial fisheries enterprises so that the fisheries access and assets provided to them can be used to their full potential.

3.2.4 Peaceful and Orderly Fishery

To what extent has the MRI contributed to a peaceful and orderly fishery?

One of the objectives of the MRI was to maintain a peaceful and orderly fishery. Forging better relations among the key groups involved in the commercial fishery thereby contributing to a stable and peaceful fishing environment has been an important objective of the MRI.

In the days and weeks following the Marshall Decision, there was much unrest in the fishery. Some First Nations had taken to the water and were fishing out of season. There was unrest among the non-native fishers who were uncertain about their future in the commercial fishery.

Violence had erupted at some locations affected by the Marshall Decision and confrontations were taking place between First Nations members, non-native commercial fishers and DFO officials.

DFO had to react quickly to restore order to the situation and to put in place an effective response to the SCC Decision:

Within weeks of the SCC Decision (October 15, 1999), the then Minister of Fisheries and Oceans appointed a Chief Federal Representative (CFR) to work on behalf of the federal government to secure practical arrangements that would accommodate First Nations’ interests in the fishery, while ensuring its orderly management.
On November 19, 1999, the Minister also announced the appointment of an Assistant Federal Representative to support the CFR in discussions with commercial and other interests impacted by the Marshall Decision.

These were important first steps in the early days of the MRI to set the stage for discussions with all involved parties and negotiations with First Nations to enter into Interim Fisheries Agreements, retire licences and subsequently issue them to the First Nations as communal licences.

Since the early days of the MRI, relationships have improved between DFO and First Nations, and between First Nations and non-native commercial fishers.

Interviews with DFO staff indicated that, while there is still room for improvement, relations have improved significantly since 1999. This was confirmed by the 2007 Survey of MRI First Nations where results indicate that over 63% of First Nations feel they enjoy improved relations with DFO. In addition, interviews with some First Nations members indicated that there has been a shift in the perception of DFO’s role in the fishery. DFO had been perceived as an enforcement arm of government but the MRI provided a different perspective showing that DFO has a much more management oriented approach to the fisheries.

The improved relationship between DFO and First Nations has been fostered in part through the establishment of Area Aboriginal Coordinators (AAC), in DFO Area Offices. The AACs work closely with First Nations on a variety of fisheries related matters on a day-to-day basis and serve as DFO’s first point of contact with the First Nations. The AACs indicated that approximately 80% of their time (up until March 31, 2007), was directed at MRI related activities and results were evident as they have established a level of trust with the First Nations, are welcomed in the First Nations communities, and on occasion are invited to attend Band Council meetings.

The beginning of the MRI was difficult for all parties involved and did not lend itself to cooperative working relationships between First Nations and non-native commercial fishers. Interviews with non-native commercial fishers representatives indicated that, for the most part, the relationship between them and the First Nations have improved since the early days of the MRI. There is evidence of First Nations and non-native fishers working side by side on wharves to earn a living. For example, at the wharf in Neguac, New Brunswick, where just a few years earlier there were violent confrontations, First Nations and non-native fishers share berths, work together and participate on the local Harbour Authority.

The 2007 Survey of MRI First Nations found that there had been minimal change in term of relations between First Nations and other fishers. Twenty-two percent of First Nations indicated the relationship had improved while 68% said that it had remained the same. Several reasons are likely for this result. First, the level of acrimony and mutual distrust that has occurred in other regions in the face of a significant shift in fishing effort to First Nations seems to have been minimized under MRI. In effect, the minimal change could be interpreted to reflect overall stability in working relations.

There are a still some issues between First Nations and the non-native fishers which affect their relationships. For example, as mentioned earlier in this report, representatives of commercial fishers indicated that some First Nations members abandon their fishing gear (e.g. lobster traps) in the water at the close of the fishing season. In addition, there is also the issue where some First Nations members sell lobster that is intended for food, social and ceremonial (FSC) use only. Instances like these have a tendency to create tension between the First Nations and non-native fishers and work against a harmonious relationship.

There are a number of hot spots in the regions where tension is high between First Nations and non-native fishers. The evaluation found that, for the most part, these tensions are directly related to the First Nations’ role in the commercial fishery. The tensions tend to be precipitated at times by events in the food, social and ceremonial (FSC) fishery in which First Nations participate. These could include some fishing out of season or First Nations selling some of their FSC landings. Problems in the FSC fishery tend to impact negatively on the relationship in the commercial fishery.

Peaceful and Orderly Fishery Conclusion

In the days and weeks following the Marshall Decision, there was much unrest in the fishery. First Nations had taken to the water and were fishing out of season. There was also unrest among the non-native fishers who were uncertain about their future in the commercial fishery.

While there is still room for improvement, relations have improved significantly since 1999. This was confirmed by the 2007 Survey of MRI First Nations where results indicate that over 63% of First Nations feel they enjoy improved relations with DFO. In addition, the relationship between the non-native commercial fishers and the First Nations has improved since the early days of the MRI.

3.2.5 Performance Measurement

In 2002, a RMAF was developed for the MRI providing a strategy for measuring its performance through the identification of expected outcomes. The RMAF also identified the data requirements that were to be used to assess the achievement of the expected results of the Program. The ability to measure the impact of the MRI through the strategy identified in the RMAF relied on the collection and analysis of information from sources, both within DFO and from third parties, notably First Nations.

In the interim evaluation of the MRI, it was reported that the RMAF had not been fully implemented and that steps should be taken to review the RMAF and ensure that the expected outputs and outcomes were appropriate. In addition, DFO was to ensure that the sources of data for measuring the MRI were attainable. The RMAF was reviewed by MRI staff and some adjustments made to the document, however, a significant amount of time had passed since the implementation of the MRI had begun and it would have been difficult to go back and collect information that was required to assess the success of the MRI.

DFO made efforts to obtain performance information from First Nations to assist in measuring the impact of the MRI. An Evaluation Guide was prepared by the program staff at HQ, with the assistance of regional staff, and was provided to every First Nations community that had signed a Fisheries Agreement with DFO under the MRI. The Evaluation Guide was intended not only to assist DFO in measuring the impact of the MRI but also to complement the First Nations communities’ evaluation of their participation in the commercial fisheries and other projects. However, it was not mandatory for the First Nations to complete the information requested in the Evaluation Guide and provision of the information was on a voluntary basis. As a result, there was little feedback received via the Evaluation Guide.

DFO also initiated training for First Nations to assist them in collecting the necessary information to help both groups assess the impact of the MRI on First Nations communities.

In addition to the initiatives taken to obtain information from First Nations, there were also requirements written into the fisheries agreements. For example, First Nations were to submit an annual performance report to DFO identifying the progress that had been made with respect to the MRI as well as indicating who was benefiting from the initiative. The evaluation team found no evidence of DFO receiving any such report.

Despite these attempts by DFO to collect information, there was limited success in obtaining the necessary performance information from First Nations, thereby limiting its ability for measuring the performance of the MRI.

Even though the MRI was officially terminated as of March 31, 2007, its full impact on the First Nations and others will not be known until some time in the future. DFO will need to determine the means of assessing whether the MRI has been a continuing success over time.

The importance of assessing the impact of the MRI will continue with the need to know whether the MRI has fully achieved what it had been intended to do as well as the extent to which DFO has contributed to addressing the SCC Decision. This would also be an important mechanism for both DFO and the First Nations as they enter into negotiations that could one day lead to long term arrangements under the DIAND process.

AICFI is expected to provide training and enhance the First Nations ability to develop and manage commercial fishing enterprises. As part of good management practices for a business, the manager of that business should know whether they are achieving their goals or not. To assist them in doing this, it would be appropriate to stress upon the First Nations the benefits of measuring their performance and providing performance information to DFO.

It is recommended that:

The ADM, FAM continue to assess the progress being made by the First Nations in the commercial fishery to determine if DFO has achieved the intended objectives of the MRI over the longer-term.
The ADM, FAM stress upon the First Nations the benefits of measuring their performance and providing performance information to DFO. This could be done through training provided under AICFI.

3.3 Effectiveness

Overview

This component of the evaluation assesses the effectiveness of the governance, program design and delivery of the Marshall Response Initiative, as well as lessons learned.

Was the governance structure of the MRI effective?

The Department put in place a framework to deliver the MRI. National Headquarters was responsible for providing program oversight and overall management while much of the operational activities that occurred under the program took place within the regions.

The Assistant Deputy Minister, Fisheries and Aquaculture Management, was accountable for the overall delivery of the MRI. The Director General, Aboriginal Policy and Governance at National Headquarters was responsible for developing policy and overall coordination of the MRI and the Regional Directors General were responsible for implementing the program. To complement this arrangement, expertise was also drawn from other sectors within the department such as Legal, Policy & Economics and Human Resources and Corporate Services. The Area Offices also played a key role in delivering the MRI.

A handbook developed by the Department in 2001 provided policies and procedures to assist in implementing the MRI. In addition, a number of committees were established as part of the governance structure to assist in the implementation of the MRI. These included an Oversight Committee (subsequently replaced by the Senior Management Policy Committee) for overseeing matters relating to licence retirement and general program issues as well as Regional Bid Review Committees that were responsible for evaluating individual bids and making recommendations to the Regional Director General regarding acceptance of these bids. The Maritimes used an alternate arrangement in place of the Bid Review Committee.

There have been several studies carried out on the MRI since 2000. These studies, including this evaluation, have identified lapses (monitoring, documentation) in the implementation of the program. These were brought to management attention for corrective action. A final internal audit of the MRI will be conducted during fiscal year 2007-08 and will further address management type issues.

Nevertheless, despite these weaknesses that had been identified, from a results (evaluation) perspective, it is considered that the governance structure in place was appropriate and provided a framework for making progress towards achieving the expected results of the MRI over a relatively short period of time.

Was the program designed appropriately and delivered effectively?

The Marshall Decision was rendered on September 17, 1999. The Decision had not been anticipated and there is no evidence that DFO had put in place any contingency plan in the event that Mr. Donald Marshall was successful in his appeal of the lower court decisions.

First Nation communities viewed the SCC Decision as a confirmation of their right to fish, however DFO was still responsible for maintaining the proper management and regulation of the fishery. To address the SCC Decision, the Department immediately began the process of acquiring and transferring commercial fishing access to the First Nation communities.

In response to the SCC Decision, DFO implemented the Initial Marshall Response Initiative. This was a one-year program approved on January 25, 2000 in the amount of $159.6M to negotiate Fisheries Agreements that provided increased First Nations access to the fishery on an immediate basis.

The Longer-term MRI built upon the Initial Marshall Response Initiative, with program funding totalling $430.2M. This Longer-term MRI required the negotiation of long-term Fisheries Agreements with the First Nations and provided the Department until March 31, 2004 to negotiate these agreements. In January 2004, DFO received approval for a two-year extension (to March 31, 2006) to the original timeframe. This extension provided the Department with additional time to issue communal licences for the fisheries access and fulfill capacity obligations identified in the Fisheries Agreements. The MRI was subsequently extended to March 31, 2007.

The focus of the Marshall Decision was to provide commercial fishing access to First Nations and contribute to the pursuit of a moderate livelihood within the context of a regulated and orderly fishery. The Department put in place a voluntary licence retirement program to facilitate the retirement of commercial fishing licences to provide First Nations with the fisheries access negotiated through Fisheries Agreements. This process enabled the Department to provide commercial fishing access to the First Nations while maintaining DFO’s priority of conserving fishery resources.

Agreements were negotiated by the CFR with individual First Nation communities. Once these agreements were reached, the Department had an obligation to provide the access that had been included in the fisheries agreements negotiated with the First Nations.

The regions had varying degrees of involvement in the negotiation process. Once the agreements had been negotiated, it was the responsibility of the Maritimes, Gulf and Quebec Regions to implement the agreements. Regional staff was the main point of contact for the First Nations and were responsible for ensuring that the obligations in the negotiated agreements were met.

One of the key initiatives under the MRI was the establishment of Area Aboriginal Coordinator (AAC) positions. The main role of the AACs was focused on developing a strong day-to-day working relationship with First Nations communities while the negotiated agreements were being implemented.

The Department faced many challenges as a result of the considerable amount of access that had to be acquired and issued to the First Nations. Factors such as the requirement for voluntary retirement, the desire to provide First Nations with access in close proximity to their geographic location and the commitments made to the First Nations under the Fisheries Agreements, and operational issues on the water all had an impact on the ability of the Department to deliver the MRI.

Effectiveness Conclusion

Despite the challenges faced in the delivery of the MRI, such as shortcomings contingency planning and unrest in the fishery, it is considered that the delivery mechanism used by the Department was the most appropriate one that could have been used under the prevailing circumstances.

Lessons Learned

There were a number of lessons learned regarding the implementation of the MRI. These lessons learned may be useful when considering the implementation of other programs.

Contingency Planning

An important lesson learned from the Marshall Decision is that DFO must be proactive when faced with potential liabilities emanating from the court decisions. In the case of the MRI, Mr. Donald Marshall had been charged and convicted of fishing eels out of season. This verdict was upheld in the lower courts in the Province of Nova Scotia. However, Mr. Marshall appealed the lower court decisions to the SCC.

At this point, it would have been prudent for DFO to set a scenario and consider options in the event that Mr. Marshall was successful in his appeal. There was no anticipation that a verdict would go in favour of Mr. Marshall because of the previous decisions taken by the lower courts. Consequently, DFO was not prepared when the Decision was issued.

Some DFO officials interviewed indicated that discussions were held in preparation for the Marshall Decision. However, the evaluation team was not provided with any documented evidence that pre-Marshall Decision planning had occurred.

At the time that Mr. Marshall was appealing the decisions to the SCC, there had not been a lot of attention paid to risk assessments. Since that time, a Departmental Legal Risk Management Committee (LRMC) has been established. The Marshall Decision was a contributing factor to the establishment of the LRMC.

Among the objectives of the LRMC is to manage legal issues and litigation which meet DFO’s high impact criteria in accordance with the Department of Justice Legal Risk Management Project. One of DFO’s high impact criteria deals with litigation or non-litigation legal issues which could have a significant impact on relations with Aboriginal people.

It is expected that the LRMC will assist in avoiding a situation where the Department would have to deal with a SCC Decision for which there had not been any contingency planning.

Training

The immediate priority in response to the Marshall Decision was to provide commercial fishing access to the First Nations. Funds for training were made available to First Nations through the negotiation of agreements. Some $21M in funding was included in the agreements with the First Nations. There was not any coordinated approach to training nor were First Nations training requirements fully identified prior to the funds being provided. Lessons were learned from this approach and as time went on a more coordinated and focused approach for training was established by DFO in collaboration with First Nations.

Consultation

DFO recognized the need to consult with parties affected by the SCC Decision. The Department engaged an individual to discuss the implications of the MRI with commercial fishers and other interested parties after the SCC Decision was released. However, those affected by the Decision, including the commercial fishers claim that the consultation process was not adequate in meeting their needs. The lesson learned here is that consultations with stakeholder should take place early in any process.

3.4 Unintended Impacts

In putting in place an initiative such as the MRI to respond to a SCC Decision, there are inevitably events or situations (positive or negative) that occur that may not be anticipated. Following are examples of some unintended impacts from the MRI that were identified during the evaluation.

Small Craft Harbours (SCH)

DFO’s Small Craft Harbours Directorate was faced with unexpected costs resulting from the increased demands on certain harbours. Five harbours were upgraded to accommodate the need for additional berthage space and services for First Nations fishers at a cost of $19.5 million as certain harbour facilities did not have the required docking/berthing capacity to meet First Nations landing needs.

In addition, in the Maritimes and Gulf Regions, there were heavy concentrations of First Nations members wishing to land at the same wharf. This was complicated by the fact that some of the vessels built for the First Nations were larger than those previously used by the non-aboriginal fishers and required increased capacity at some harbours.

Funding for these upgrades was reallocated from other departmental programs and planned capital work in other harbours was deferred since no funds were specifically identified for upgrading commercial harbours as part of MRI.

Increase in License Retirement Costs

When the decision was made that the Marshall Decision would be addressed by way of a voluntary licence retirement program, DFO retired licences from commercial licence holders who wished to retire them. As agreements were entered into with First Nations, DFO had to obtain licences to meet the commitments outlined in the agreements. At the beginning of the MRI, it was easier to obtain licences as there were some older fishers who were near retirement and were ready to leave the fisheries. However, as time went on, it became more difficult to find licences available as there were less people willing to retire their licences. Consequently, the costs relating to the retirement of the licences increased.

Because of the obligations contained in the MRI Fisheries Agreements, the demand for licences increased while at the same time, the number of licence holders interested in retiring licences decreased. Representatives of commercial fishers expressed concerns about the impact that this will have on the next generation of fishers, including concerns that the increase in the licence retirement costs would prevent younger fishers from "acquiring" a licence and starting their own commercial fishing enterprise.

Fishing Outside of Traditional Areas

The issuance of licences to First Nations created some tension and confusion between First Nations and non-native fishers. When access was negotiated, licences were retired, where possible, in the areas where First Nations would be fishing. This approach addressed conservation issues, but did not address a potential shift in the wharves that would be used by First Nations.

Traditionally, non-native commercial fishers have fished in "unofficial zones" within their respective fishing areas. These "unofficial zones" have been passed on from generation to generation and have defined where the commercial fishers would fish. The non-native fishers expected that First Nations would respect these traditional fishing areas thus avoiding any changes in fishing effort on the water and in required harbour services.

When access was provided to First Nations, they began fishing commercially and instead fished where it would be most convenient or lucrative, creating a situation where there was tension and potential for conflict in some fishing areas. In addition to this situation, some First Nations were not welcomed in some of these "unofficial zones".

"Royalty Charters"

Royalty chartering occurs when a licence holder hires other fishers to fish the quota allocated to that licence. The hired fisherman could use his own equipment and crew to fish the quota or he could use a vessel owned by the licence holder. This situation is occurring, in some cases, with the licences and quota provided to First Nations through the MRI. While the evaluation team could not quantify the exact number of licences that are being fished on behalf of First Nations, both DFO staff and representatives of commercial fishers raised royalty fishing as a concern. The use of non-natives to harvest First Nations access has a number of impacts on the First Nations, including:

First Nations will not become integrated into the commercial fishery if they have non-natives harvesting their quotas;
First Nations will not gain the capacity required to effectively participate in the commercial fishery; and
First Nations will lose employment opportunities in the commercial fishery. The 2007 Survey of MRI First Nations indicated that 29% of First Nation fishing employment is held by non-natives.

It was anticipated that at the beginning of the MRI, First Nations would not have the capacity (experience or training) to fish all of the licences issued to them and that non-native fishers would assist the First Nations in harvesting their access. However, this practice has continued some eight years after the Marshall Decision was rendered.

It was expected that, as time went on, a more active involvement by First Nations in the actual harvesting of their access would have occurred and the First Nations would gradually become fully integrated into the commercial fishery.

Relationships between First Nations

The 2007 Survey of MRI First Nations reports a significantly higher improvement in the relationships among First Nations. This is a very positive development. As they progress in the commercial fishery, it will be essential for many First Nations to work together to achieve the critical mass needed to succeed. Further, straight forward issues such as optimal fleet and licence utilization are dependent on First Nations building solid business relationships among themselves. This response suggests that the MRI has fostered the initial environment for these developments to emerge. Overall, it would seem the MRI has positively contributed to building solid working relationships for First Nations.

4.0 Management Action Plan

Recommendations	Management Action Plan	Officer of Prime Interest	Initial Target date
It is recommended that the ADM, Fisheries and Aquaculture Management and the Regional Directors General of Maritimes, Gulf and Quebec Regions: 1. Reconcile current inventory of all licences issued to the First Nations under the MRI (Initial and Longer-term) and address any gaps in databases. This will assist in managing future aboriginal programs such as AICFI and determining future requirements (e.g. training) of the First Nations.	Aboriginal Policy and Governance (APG) maintains an inventory of licenses acquired and transferred to First Nations under the MRI. APG is conducting a reconciliation of the various licencing data bases with regions to confirm the inventory is accurate and comprehensive. Once the reconciliation is complete, the inventory will be maintained on an ongoing basis.	Ian Redmond	December 2007
The ADM, Fisheries and Aquaculture Management: 2. In implementing the Atlantic Integrated Commercial Fisheries Initiative (AICFI) take into consideration the need for:	AICFI supports the greater involvement of Mi’kmaq and Maliseet First Nations in the co-management of integrated commercial fisheries. The program design for AICFI includes elements to address each of the components itemized in the recommendation. The implementation of the initiative will be based on the Treasury Board approved Results-based Management Accountability Framework for AICFI.	Kevin Fram	Mid 2008
a) Improving the level of participation of First Nations in the advisory committee and Integrated Fisheries Management Plan processes.	Recommendation a) will be addressed through component 3 of the AICFI, where the DFO aims to foster participation of First Nations, through their representative bodies, in the co-management of the integrated commercial fisheries. This will be done through the creation of commercial fisheries liaison coordinators who will attend fisheries management committees on behalf of aggregate bodies.
b) Further efforts to be made in enhancing the skills of First Nations in the management of commercial fisheries enterprises so that the fisheries access and assets provided to them can be used to their full potential.	Recommendation b) will be addressed through component 2 of the AICFI, through the enhancement of management, administrative and operational processes and systems that are critical to the successful operation of First Nation commercial fishing enterprises. This will be done through the creation of a business development team, who will provide mentoring and guidance in all areas related fisheries management.
The ADM, Fisheries and Aquaculture Management: 3. Continue to assess the progress being made by the First Nations in the commercial fishery to determine if DFO has achieved the intended objectives of the MRI over the longer-term.	Further progress in the commercial fisheries will be addressed through the implementation of AICFI. This recommendation will be addressed throughout the Initiative, where at all stages First Nations will be assessed regarding their level of governance, management skills and harvest rate as compared to non-native harvesters. This approach will indicate, with respect to First Nations, which areas are in need of further development.	Kevin Fram	On-going
The ADM, Fisheries and Aquaculture Management: 4. Stress upon the First Nations the benefits of measuring their performance and providing performance information to DFO. This could be done through training provided under AICFI.	The program design for AICFI includes elements to address this recommendation. The implementation of the initiative will be based on the Treasury Board approved Results-based Management Accountability Framework for AICFI. For successful advancement through the various components of AICFI, First Nations are required to prepare and submit performance information. The responsibility and methodology for the collection of this information will be developed during the Management Practice (Component 2) phase. This information will be evaluated by DFO and will aid in the determination of further funding, specifically under the Diversification (Component 4) phase of the program.	Kevin Fram	Beginning in 2008

[1] Source: Community-based Fisheries in the Canadian Maritimes by Anthony Charles, Arthur Bull, John Kearney, and Chris Milley), Chapter 13 of "Fisheries Management: Progress Towards Sustainability,” Edited by T.R. McClanahan, Page 288. (2007 - by Blackwell Publishing Ltd.)

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Summative Evaluation of the Marshall Response Initiative

Table of Contents

1.0 EXECUTIVE SUMMARY

2.0 Introduction

2.1 Background

2.2 Objectives and Scope

2.3 Methodology

3.0 Observations and Recommendations

3.1 Relevance

3.2 Success

3.2.1 Negotiations and Consultations

3.2.2 Access

3.2.3 Capacity

3.2.4 Peaceful and Orderly Fishery

3.2.5 Performance Measurement

3.3 Effectiveness

3.4 Unintended Impacts

4.0 Management Action Plan