Examining the implementation of Indigenous commercial fishing rights

Table of contents

• Opening remarks
• Background
  • Marshall decisions
  • Marshall Response Initiative
  • Atlantic Integrated Commercial Fisheries Initiative
  • Marshall negotiations
  • State of relationships (Indigenous-commercial fishing sector)
  • Industry engagement
  • Role of Federal Special Representative
  • Forward plan - [Information was severed in accordance with the Access to Information Act.]
• Moderate livelihood – Issues
  • Indigenous fisheries in pursuit of a moderate livelihood
  • Banked licences
• Lobster Fisheries management
  • History of the Canadian Lobster Management Regime
  • Landings and value – overall fishery
  • Licences, landings, and value for inshore lobster
  • Communal commercial landings and value
  • Purchase of Clearwater by a Coalition of Atlantic First Nations and Premium Brands
• Other Indigenous issues
  • United Nations Declaration on the Rights of Indigenous Peoples
  • Elvers
  • CIRNAC process

Opening remarks

Good morning, Mr. Chair. I appreciate the invitation to speak to the honourable members of this committee. I am joining you today [Information was severed in accordance with the Access to Information Act.] in Mi’kma’ki – the traditional, unceded territory of the Mi’kmaq People.

Before I begin, I want to take a moment to say that my thoughts are with Tk’emlúps te Secwépemc (tuh-kam-loops-tuh-she-kwe-pem) First Nation, and with all Indigenous communities across Canada, as the country continues to grieve the loss of the 215 children found buried at the former residential school in Kamloops. [Information was severed in accordance with the Access to Information Act.] This is a horrifying reminder of the work that still needs to be done to advance reconciliation.

I have been following this study and want to thank Senators for undertaking this work and engaging in thoughtful discussions with the many Chiefs and witnesses who have appeared before this committee. I also want to let this Committee know that the Government of Canada fully supports Senator Francis’ Motion 40 that was adopted in the Senate last month. As we have this discussion today, I would be remiss to not recognize the ongoing work of members of this committee—in particular—Senators Christmas and Francis, who come from communities that are directly impacted and who have always been a part of the moderate livelihood discussion. I thank you for your input thus far, and I look forward to comments and suggestions from all members of this committee.

Today, I am accompanied by:

• Timothy Sargent, Deputy Minister;
• Jean-Guy Forgeron, Senior Assistant Deputy Minister; Fisheries and Harbours Management
• Doug Wentzell, Regional Director General, Maritimes Region; and,
• Gorazd Ruseski, Director General, Indigenous Affaires
• Robert Lamirande, Lead Federal Fisheries Negotiator

After my brief remarks, my officials and I will be happy to answer your questions.

As federal fisheries minister, it is my responsibility to ensure that our marine resources are managed for the long term and in the public interest. It is also incumbent upon me to advance Canada’s commitments to reconciliation by ensuring that my department works closely with Indigenous peoples to manage Canada’s fisheries.

This can only be done by working together on solutions that are consistent with the constitutional protections provided to Aboriginal and treaty rights.

Working nation-to-nation is integral to our approach to implementing the Supreme Court affirmed treaty right for the Mi’kmaq, Wolastoqey and the Peskotomuhkati (Passamaquoddy) Nation at Skutik (Scoo-dik) to fish in pursuit of a moderate livelihood.

When Canadians elected a Liberal Government in 2015, our government expanded the mandate for moderate livelihood negotiations. These changes led to two Rights Reconciliation Framework Agreements being signed in 2019. More recently, we introduced further flexibilities to this process following feedback from First Nations. These changes helped us move forward in our agreement with Listuguj First Nation. As you heard from Chief Gray, the five-year Agreement puts in place a process for a collaborative fisheries management approach between the Listuguj Mi’kmaq and Fisheries and Oceans Canada.

Nation to nation discussions continue with other First Nations as we work to implement this right across Quebec and the Maritimes.

We have also been engaging earnestly with industry associations and their members. We appointed a Federal Special Representative to advise us on how to strengthen the relationships in our fishing communities. And we are increasing our communication with the public, being open and transparent as we can about what lies ahead.

Recently, as you know, our government introduced a new alternative path for First Nations to fish in pursuit of a moderate livelihood.

This approach is in keeping with the Marshall decisions, which have guided DFO’s work for more than 20 years, and is based on three key principles: a respect for conservation, transparent and predictable management, and reconciliation.

Our goal is to have a fishery that is peaceful, productive and prosperous, one that upholds the Marshall decisions and ensures that First Nations are able to exercise their treaty rights in a way that is reflective of their Nation’s vision and needs.

Through this approach, we are working collaboratively with participating First Nations to develop Moderate Livelihood Fishing Plans that are unique to each community or aggregate, and which are authorized and licensed.

Under this approach, First Nations can fish this season, in season, in advance of longer term Rights Reconciliation Agreements.

As our fisheries are fully subscribed, this approach ensures that fishing effort will not increase in order to help protect the long-term sustainability of our stocks. Additionally, having well-established and regulated fishing seasons helps prevent overfishing and allows us to maintain the health of our shared and finite marine resources.

I would also like to emphasize that this is not the only approach, but an option that is available should First Nations seek a shorter term plan to fish this season.

Earlier this month, Canada and Potlotek First Nation reached an understanding for their community members to fish for a moderate livelihood and to sell their catches this season.

Potlotek’s fisheries plan was developed by the community with support from the Assembly of Nova Scotia Mi’kmaw Chiefs and the KMK Negotiation Office.

We thank the community for their ongoing partnership, and we are pleased that this fishery will strengthen their community’s self-determination and economic self-reliance.

The 2021 fishing season is an opportunity for all of us to work together and while the path forward may be difficult at times, we are all striving towards shared and common goals: the sustainable use of our fisheries while implementing the First Nation right to fish in pursuit of a moderate livelihood.

I am happy to take your questions now.

Background

Marshall decisions

• In the September 1999 Marshall decision, the Supreme Court of Canada affirmed a treaty right to hunt, fish, and gather in pursuit of a moderate livelihood
• In November 1999, the Supreme Court of Canada clarified that the government can regulate the exercise of the treaty right if justified in accordance with constitutional requirements
• The court also noted the complexity of balancing competing interests and accommodating the treaty right, and encouraged the negotiation of agreements to accommodate the right
• We remain committed to working with First Nations at the negotiation table to implement their Treaty right as affirmed by the Marshall decisions, all while ensuring that the fishery is sustainable and productive for all harvesters

Background

• In August 1993, Donald Marshall, a Mi’kmaq and member of the Membertou Band in Cape Breton, Nova Scotia, was charged with fishing without a licence, fishing during the closed season with illegal nets, and selling eels without a licence contrary to the Fisheries Act and regulations. In his defence, Mr. Marshall argued that he had a treaty right to fish and sell (trade) fish
• In the September 1999 Supreme Court of Canada decision, a majority of the Court affirmed a Mi’kmaq treaty right to hunt, fish and gather and to trade the product of those activities for what in 1760 was termed as “necessaries”. The Court concluded that, in today’s terms, the concept of “necessaries” is equivalent to “a moderate livelihood”. This was interpreted to include basics such as food, clothing, and housing, supplemented by a few amenities—more than “bare subsistence” but not extend to the (open-ended) accumulation of wealth
• The Court found that the closed season, the imposition of a discretionary licensing scheme in the context of the “small-scale commercial eel fishery” in question, and the prohibition of sale, if enforced, would interfere with or infringe the treaty right. The Crown did not present any evidence to justify infringement of the right, and in the absence of any justification of the regulatory prohibitions, Mr. Marshall was entitled to an acquittal
• The Marshall decision affects Mi’kmaq Wolastoqey (Maliseet) First Nations in New Brunswick, Prince Edward Island, Nova Scotia, and the Gaspé region of Quebec, as well as the Peskotomuhkati Nation at Skutik
• Following an unsuccessful appeal by a fishing industry organization for a rehearing of the Donald Marshall case, the Supreme Court of Canada issued a rare clarification of its Marshall I decision in November 1999. The Marshall II decision clarified that federal and provincial governments within their respective legislative fields have the authority to regulate the exercise of the treaty right (subject to the constitutional requirement that restraints on the exercise of the right have to be justified). It also clarified that the treaty right is a collective right, emphasized the local nature of the treaties, and noted the complexity of balancing competing interests and accommodating the treaty right, and encouraged consultation and negotiation of a modern agreement to accommodate the right

Marshall Response Initiative

• Over the past 21 years, Fisheries and Oceans Canada has not been idle
• Since the 1999 Marshall decision, Fisheries and Oceans Canada has implemented programs and initiatives to accommodate what the court found to be a communal right to pursue a moderate livelihood from hunting, gathering, and fishing, beginning with the Marshall Response Initiative
• From 2000 to 2007, Fisheries and Oceans Canada provided $354 million for communal commercial fishing licenses, fishing vessels and gear, and training for 32 First Nations affected by the Marshall decision
• When this program ended in 2007, it was replaced by the Atlantic Integrated Commercial Fisheries Initiative, which continues to support increased First Nations’ participation in the commercial fishery

Background

• 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-Indigenous commercial harvesters who were uncertain about their future in the commercial fishery. Violence had erupted at some locations and confrontations were taking place between First Nations members, non-Indigenous commercial fishers, and DFO officials
• In 1999, the 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. The Minister also appointed an Assistant Federal Representative to support the CFR in discussions with commercial and other interests
• In 2000, the Initial Marshall Response Initiative was launched. This was a one-year program to sign Interim Fisheries Agreements (IFAs) that provided increased First Nations access to the commercial fishery on an immediate basis. Agreements were driven by the individual First Nations 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 signing IFAs with 30 of the 34 eligible First Nations
• In 2001, DFO introduced the Longer-term Marshall Response Initiative (MRI) to build upon the IFAs signed under the Initial Marshall Response Initiative. The MRI process provided an opportunity for First Nations to actively articulate and develop their vision for their future participation in the fishery through Fisheries Agreements. This initiative was in place until March 31, 2007
• Through the MRI, and an investment of $354 million between 2000 and 2007, commercial fishing licenses, fishing vessels and gear, and training were provided to 32 of the 34 eligible First Nations through signed Fisheries Agreements. DFO was unable to reach agreements 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
• In the Marshall decision, the Supreme Court of Canada noted the process of determining what is required to implement the moderate livelihood right may best be resolved through negotiated agreements with affected First Nations. The Government of Canada is negotiating the further accommodation of the right, in addition to access provided through the MRI and other programs

Atlantic Integrated Commercial Fisheries Initiative

• The Atlantic Integrated Commercial Fisheries Initiative, or AICFI, was created in 2007 to build on the progress made under the Marshall Response Initiative. It was a temporary program until this government made it permanent in Budget 2017
• AICFI provides funding and support to First Nations affected by the Marshall decision to build the capacity of their communal commercial fishing enterprises and to strengthen community economic self-sufficiency. Presently, 34 of 35 eligible First Nations participate in AICFI
• AIFCI and its predecessors, including the Marshall Response Initiative, represent a significant response to the Marshall decision. Over the past 21 years, these programs have provided $550 million dollars for licences, vessels and gear, and training in order to increase and diversify First Nations’ participation in the commercial fisheries and contribute to the pursuit of a moderate livelihood for their members
• These investments have resulted in meaningful economic benefits for First Nations communities and individuals participating in fisheries. For example, the value of First Nations’ communal commercial landings has increased in Atlantic Canada from $3 million in 1999 to over $140 million today
• We recognize there are still income gaps between Indigenous and non-Indigenous communities in Atlantic Canada. This and the recent conflict are stark reminders that there is still more work to be done—work that we can do together as part of reconciliation

Background

• In 2007, following the conclusion of the Marshall Response Initiative, the Atlantic Integrated Commercial Fisheries Initiative (AICFI) was launched. AICFI provides funding and support to the First Nations affected by the Marshall decision to build the capacity of their communal commercial fishing enterprises (CFEs) and strengthen community economic self-sufficiency. AICFI, originally a temporary program, was made permanent in Budget 2017
• DFO, with the Atlantic Policy Congress of First Nations Chiefs and Ulnooweg Development group, works with AICFI participants to increase communal commercial fisheries access, provide business management capacity building support, and access training resources required to build self-sustaining First Nation-owned CFEs that meet long-term objectives, including horizontal expansion, the development of additional fisheries-related business opportunities, and increased community employment
• To date, including projected expenditures to the end of the 2020-21 fiscal year, AICFI has provided $97 million in direct funding to eligible First Nations to build CFE capacity, support harvester training, and expand and diversify CFE operations. Currently, 34 of 35 eligible communities participate in AICFI
• These investments have resulted in economic benefits for communities and individuals participating in fisheries:
• The value of Indigenous communal commercial landings has increased in Atlantic Canada, from $3 million in 1999 to over $140 million today. In addition to landed values, communities also see over $50 million in spinoff economic benefits
• Employment in the sector has grown in conjunction with revenues: Mi’kmaq and Wolastoqey First Nations’ communal commercial fishing enterprises currently employ 1,669 people, of which 1,310 are fish harvesters and 358 are land-based employees
• The Mi’kmaq and Wolastoqey’s share of the overall fishery in the Maritimes has grown from virtually nil at the time of the Marshall decision, to today where they have more than six percent of the landed value for the key species fished

Marshall negotiations

a) History

• Negotiations began with Nova Scotia Mi’kmaq in 2000 however, there was never a mandate to discuss fish in the context of the pursuit of a moderate livelihood
• Therefore, in 2015, Canada and the Nova Scotia Mi’kmaq began exploring a new approach together that would meet their vision of moderate livelihood in the fisheries context
• In 2017, Canada obtained a mandate to negotiate Rights Reconciliation Agreements with the Mi’kmaq, Wolastoqey and Peskotomuhkati across Atlantic Canada and the Gaspé region of Quebec

b) Rights reconciliation agreements

• These agreements recognize the rights and interests of Indigenous communities and advance their vision of self-determination and economic self-reliance for the benefit of their communities and Canada
• Two agreements were signed in 2019, one jointly with Elsipogtog and Esgenoôpetitj First Nations (two Mi’kmaq communities in New Brunswick) and the and the Wolastoqiyik Wahsipekuk (Wool-las-two-wi-ig Wa-shi-bê-gouk), a Wolastoqey community in Quebec
• More recently, an agreement was signed with Listuguj First Nation, also a community in from Quebec
• By negotiating RRAs in the spirit of respect, cooperation and partnership to recognize First Nations’ right to pursue a moderate livelihood, Fisheries and Oceans Canada took the advice of the Supreme Court

Background

History

• Although Canada and First Nations continued to negotiate through the comprehensive claim process from 2000 onwards, there was no mandate to negotiate this fundamental Treaty right through this process
• Canada has signed a number of agreements with the Mi’kmaq, Wolastoqey and Peskotomuhkati Nation at Skutik including Framework Agreements that frame areas of common interests as well as identify areas where more discussions are required in order to find common ground
• Over the years, it became clear that the existing federal comprehensive land claim policy which forms the basis for negotiations around the country and has led to several successful modern treaties, did not enable the parties to truly make progress on implementing existing Treaty rights to hunt fish and gather in pursuit of a moderate livelihood
• In 2015, Canada and the Nova Scotia Mi’kmaq began exploring incremental treaty agreements, referred to as Rights Reconciliation Agreements (RRA)
• Canada obtained the authority to negotiate RRAs in 2017

Rights reconciliation agreements

• The concept of RRAs were developed jointly with the Nova Scotia Mi’kmaq in 2015 and negotiations began in 2017
• These are a type of time limited, incremental treaty agreements that would advance treaty-related benefits to an Indigenous group in the treaty process
• Negotiations will contribute to greater clarity, stability and predictability as it relates to First Nation participation in the Atlantic fisheries which would create a more stable environment for all harvesters and foster the conditions for a prosperous and sustainable fishery

State of relationships (Indigenous-commercial fishing sector)

• Significant tensions remain between Indigenous and non-Indigenous harvesters in parts of Nova Scotia; commercial harvesters continue to object to harvesting activity outside of the established commercial season and management regime
• I know that Indigenous and non-Indigenous harvesters have similar priorities when it comes to the fishery: the long-term sustainability of the resource so that it is available for generations to come, and safe and orderly fisheries that are accessible to all harvesters
• These common objectives unite Indigenous and non-Indigenous harvesters, and it is through this lens that we will find common ground and re-establish a respectful dialogue

Background

• On October 21, 2020, the Nova Scotia Supreme Court granted an injunction that prohibits anyone from trying to stop Sipekne’katik First Nation harvesters from accessing wharfs in Saulnierville and Weymouth, as well as a lobster pound in New Edinburgh
• Protests by non-Indigenous fish harvesters over Mi’kmaq fishing activity outside of the federally-mandated commercial season significantly intensified in September 2020 when Sipekne’katik First Nation launched their own self-regulated moderate livelihood fishery. Vandalism, threats, and acts of violence towards Mi’kmaq harvesters and their supporters have since ensued
• These incidents and threats of escalating actions by non-Indigenous harvesters against Indigenous harvesters, including illegal interference with Mi’kmaq harvesters’ gear, assault against Mi’kmaq leaders and harvesters, and destruction of Mi’kmaq-harvested lobsters, have been met with allegations of racism, discrimination, and colonialism by Indigenous harvesters and much of the public, and have escalated the nature and extent of the conflict
• Some commercial harvesters have commented in the media that they respect Indigenous and treaty rights, and have emphasized that their anger is instead directed at government and harvesting that falls outside of the established management regime in the absence of a definition of moderate livelihood
• Last month, Federal Special Representative Allister Surette filed his final report which includes key findings from the dialogue processes. His final report builds on the interim report (presented in January), and recommends a path forward to the Ministers of Fisheries, Oceans and the Canadian Coast Guard, and of Crown-Indigenous Relations related to the Indigenous-commercial sector relationship in Atlantic Canada, and how best to move forward with the implementation of the right to fish in pursuit of a moderate livelihood for the Mi’kmaq, Wolastoqey (Maliseet), and Peskotomuhkati in the region
• There is a continued need for outreach towards non-Indigenous stakeholders to provide education and increase awareness of Indigenous and treaty rights

Industry engagement

• My department frequently meets with Indigenous and non-Indigenous industry representatives and harvesters. All parties share concerns related to sustainability of stocks
• I want to reiterate that we need the time and space to negotiate rights-based agreements. It is through these negotiated agreements that we will bring clarity and predictability to the implementation of the moderate livelihood right
• As we continue these Nation-to-Nation negotiations, we will be making every effort to increase transparency, formalize lines of communication, and ensure that commercial harvesters have meaningful opportunities to express their views, such as through regional roundtables
• The Government is committed to building awareness and understanding of the importance of reconciliation and Indigenous and treaty rights among all Canadians, including fisheries stakeholders

Background

• DFO officials communicate with commercial sector representatives and harvesters on a regular basis and through a variety of fora
• From November 18 to April 12, 2020, DFO and the Canadian Independent Fish Harvesters’ Federation jointly hosted a series of ten virtual workshops, some with the participation of Crown-Indigenous Relations and Northern Affairs Canada and the Department of Justice. These workshops have initiated a structured and regularized process by which fishing industry representatives and the Government of Canada can exchange information and perspectives on the implementation of Indigenous and treaty rights, and identify issues and possible ways to address them
• In the Maritimes Region, regular meetings between Area Directors and the commercial sectors have been established to continue discussions regarding Indigenous fisheries, among other items
• Despite DFO’s attempts to increase dialogue about Indigenous rights with the commercial sector, non-Indigenous harvesters continue to protest their lack of participation in Rights Reconciliation Agreement negotiations and express a number of concerns related to moderate livelihood fisheries. Concerns include potential/perceived impacts on: conservation, investment in the fishing industry, market conditions, and societal change in rural areas dependent on the fishery as a livelihood
• The commercial sector is seeking clarity and transparency around negotiations and the long-term goals of Canada with respect to the implementation of moderate livelihood fisheries, as well as direct inclusion in decision-making by way of a separate negotiation table where they can provide input to the lead negotiator
• DFO will continue to engage with industry about their concerns, however this may pivot to more regionally-based dialogue that focusses on the grassroots level. Dialogue will seek to address misperceptions and misinformation; build awareness of the reconciliation agenda and Indigenous and treaty rights; create DFO processes for ongoing exchange of views/information with industry; and enable Indigenous-industry dialogue and relationship-building
• There is a continued need for outreach towards non-Indigenous stakeholders to provide education and increase awareness of Indigenous and treaty rights

Role of Federal special representative

• The escalation of tensions last fall demonstrated that there is a need for direct discussions between First Nations and the commercial fishing sector in order to build understanding and trust
• With this in mind, on October 23, my colleague Minister Bennett and I announced the appointment of Allister Surette as Federal Special Representative to foster dialogue between First Nations and the commercial sector in Atlantic Canada
• As a neutral facilitator, Mr. Surette’s mandate was to bring all sides of this dispute together and try to find common ground between the parties
• This was a challenging task and I would like to thank him for his efforts
• One of his key recommendations is the creation of multi-party projects. These collaborative projects would bring together Indigenous, non-Indigenous and academic knowledge to help our understanding of our ocean science and seafood markets leading to greater economic prosperity for all Canadians
• All of his recommendations will be carefully considered as we move forward collectively on the path of reconciliation and as we advance negotiations on the Treaty right

Background

• In an attempt to de-escalate rising tensions in the Nova Scotia lobster fishery, on October 23, 2020, the Government of Canada appointed a Federal Special Representative to work towards facilitating dialogue between Indigenous and non-Indigenous harvesters
• Mr. Surette’s mandate was to gather the different perspectives on the issues contributing to the current situation; seek to build understanding and find common ground that will reduce tensions between Indigenous and non-Indigenous harvesters; and identify opportunities to improve relationships and reach a lasting solution
• He recently produced and presented his final report which includes key findings from the dialogue processes. His final report builds on the interim report and recommends a path forward to the Ministers of Fisheries, Oceans and the Canadian Coast Guard, and of Crown-Indigenous Relations related to the Indigenous-commercial sector relationship in Atlantic Canada, and how best to move forward with the implementation of the right to fish in pursuit of a moderate livelihood for the Mi’kmaq, Wolastoqey (Maliseet), and Peskotomuhkati in the region
• Dialogue with the Federal Special Representative did not replace Nation-to-Nation negotiations or opportunities for Indigenous leaders or the commercial sector to meet with the Minister of Fisheries, Oceans, and the Canadian Coast Guard. The Department continued to meet with Indigenous leaders and the commercial sector in parallel to the work of the Federal Special Representative

Forward plan - [Information was severed in accordance with the Access to Information Act.]

• The situation in Nova Scotia, in the fall of 2020, highlights issues around the implementation of First Nations’ right to fish in pursuit of a moderate livelihood
• My officials and I continue discussions with First Nations leadership and industry representatives to emphasize the need for safety, and the need to move forward with dialogue to achieve a peaceful solution
• The need for tangible progress through nation to nation negotiations [Information was severed in accordance with the Access to Information Act.] based on items we heard were key to achieve negotiated agreements
• On March 3, I also announced a new path forward in the short term with respect to the implementation of the Marshall Decisions
• This approach is flexible, adaptable, and based on three key principles: implementation of First Nations Treaty rights, conservation and sustainability of fish stocks, and transparent and stable management of the fishery
• First Nations will be able to exercise their right in a way that is reflective of their Nation’s vision, needs, and wishes as articulated within a Moderate Livelihood Fish Plan
• This path is one option that First Nations can use to fish this season—in season—in advance of longer term Rights Reconciliation agreement
• Concurrently we have made every effort with industry to increase transparency, formalize the lines of communication, and ensure that industry has meaningful opportunities to share its concerns and express its views

Background

• In light of the events in Nova Scotia in the fall 2020, DFO acknowledged the need to more rapidly recognize and implement the Treaty right to fish in pursuit of a moderate livelihood, while also achieving longer-term stability and predictability in the fisheries sector, and improving relationships between Indigenous and non-Indigenous harvesters
  Moving forward, as announced on March 3, 2021, the following core principles will guide the departmental response: implementation of First Nations Treaty rights, conservation and sustainability of fish stocks, and transparent and stable management of the fishery
• In addition, fishing effort will not increase as moderate livelihood access will be acquired through a willing buyer – willing seller approach, and, these fisheries will operate within established seasons to ensure that stocks are harvested sustainably in an orderly, predictable, and well-managed fishery
• Communities have expressed that the implementation of their right to fish in pursuit of a moderate livelihood does not need to occur within DFO’s regulations, including fishing and selling their catch within the authorized fishing season. While DFO will not authorize the sell of catches out of season, in the short term, the Department is working with communities to supporting an incremental, small-scale commercial fisheries approach, as described in a Moderate Livelihood Fish Plan, to assess the operational feasibility and economic viability of moderate livelihood fishing
• The department continues to enhance communication and engagement with industry on a bi-lateral basis and with First Nations to bring them along as we seek to implement the right

Moderate livelihood – issues

Indigenous fisheries in pursuit of a moderate livelihood

• The tensions in Nova Scotia last fall brought the issue of treaty rights to the forefront, particularly the issue of moderate livelihood
• We believe that it is possible to have peaceful, productive and prosperous fisheries, fisheries that respect the Marshall decisions and uphold the rights of First Nations, while benefitting all parties involved
• That is why, for the 2021 fishing seasons, we have put in place an approach that will allow interested Indigenous communities to fish in support of a moderate livelihood
• The approach is flexible and adaptable and will allow communities, in collaboration with DFO, to implement plans to fish for a moderate livelihood in future seasons
• At the same time, Fisheries and Oceans Canada is working with First Nations in negotiations to advance and enter into longer-term agreements to implement rights in Atlantic and Quebec communities
• A sustainable resolution is only possible through the recognition of treaty rights and respectful dialogue between all parties affected by this fishery
• Our commitment to reconciliation continues and we must continue to have meaningful conversations with First Nations and members of the fishing industry

Background

• Non-Indigenous stakeholders expressed their concerns about conservation, demands to be included in negotiations with First Nations, and calls for enforcement measures with respect to what they consider “illegal” fishing. Tensions increased sharply and led to acts of vandalism, removal of traps, and the harassment of Indigenous fishers
• Progress has been made and benefits have been achieved, particularly with the signatures of three Rights Reconciliation Agreements. Despite this, the First Nations have raised criticisms about the speed of the progress of the negotiations, and some communities have started to develop and put in place plans for a moderate livelihood fishery
• Through the Marshall Response Initiative, the Atlantic Integrated Commercial Fisheries Initiative and, more recently, the Rights Reconciliation Agreement process, the Department is working with the Mi’kmaq and Wolastoqey First Nations and the Peskotomuhkati Nation at Skutik to implement the right to fish in pursuit of a moderate livelihood
• In Atlantic Canada and in the Gaspé region of Quebec, the right of Indigenous peoples to fish in pursuit of a moderate livelihood has been an important issue since the Marshall decision in 1999. With the help of the Department’s programs, First Nations have progressed from a very limited participation in the commercial fishery in 1999 to a landed value and revenue of over $170 million per year for band-owned fishing enterprises and the creation of jobs for 1,700 Indigenous persons in 2019
• The objective of the statement given on March 3 was to move this issue forward by clarifying the guiding principles for the moderate livelihood fishery, [Information was severed in accordance with the Access to Information Act.] in the negotiation of three Rights Reconciliation Agreements (RRA) with the First Nations affected by the Marshall decisions and the Peskotomuhkati, and the ability to negotiate with these same First Nations regarding small-scale moderate livelihood fishing plans (MLFP) for the 2021 fishing season

Banked licences

• Available banked licences have been issued to Indigenous communities that have signed a Rights Reconciliation Agreement
• These banked licences are not new; they have not been active since the early-to-mid-2000s when they were purchased through various Indigenous programs such as the Marshall Response Initiative
• The banked licences represent a small fraction to the overall commercial fishery and do not pose a conservation concern
• As announced in my March 3 statement, access for small scale moderate livelihood fishing plan fisheries can be accommodated on an interim basis through banked licences, and a willing buyer – willing seller approach

Background

• Industry has raised a number of issues regarding the banked licences (e.g. not consulted, potential for conservation concerns) and the Department has met with the fishing industry to discuss their concerns and answer any questions that they may have regarding the banked licences
• Two separate exercises were undertaken in May 2019 and February 2020 to gauge interest and obtain input on how the banked licences should be distributed with First Nations. When the decision was communicated in July 2020 on how the banked licences were to be distributed, the decision was either welcomed or criticized
• Beyond Rights Reconciliation Agreements, Fisheries and Oceans Canada also has the ability to negotiate small scale moderate livelihood fishing plans for the 2021 fishing season and to use banked licences, if available, on an interim basis to provide access for these fisheries

Lobster fisheries management

History of the Canadian Lobster Management Regime (origins of/rationale for effort controls – area restrictions, seasonal restriction, trap limits, carapace size, etc.)

History of Canadian Lobster Management:

• The roots of Canada’s current approach to lobster management can be traced back to the late 1960s when the Department implemented an important set of input controls, that is, constraints on fishing effort through various means
• The Government of Canada has worked closely with Indigenous and non-Indigenous harvesters to develop these measures and we will continue working together to ensure the long-term sustainability of the resource

Purpose of Lobster Seasons:

• The primary purpose of closed seasons is to promote lobster productivity. In the vast majority of areas, closed seasons are set to avoid harvesting during important lobster life stages, including egg hatching, moulting, egg laying, and mating
• Closed seasons are also an important control on fishing effort and support conservation by keeping overall fishing effort sustainable
• Defined lobster seasons support the public policy objective of orderly and safe fisheries. By having all commercial fishing activity in a given lobster fishing area occur at the same time, the Department is able to properly deploy resources for monitoring, enforcement, and safety operations

Background

• The contours of the current management regime for lobster began to emerge in the late 1960s, when the Department began to roll out a limited entry licence policy. Prior to that, no restrictions were in place for acquisition of a lobster licence. Along with limiting the number of licences, the Department also introduced trap limits and defined boundaries for most of the modern day lobster fishing areas (LFAs)
• In 1995, the Minister of Fisheries and Oceans requested that the Fisheries Resource Conservation Council (FRCC) review and provide recommendations on the lobster fishery. The FRCC was an arms-length, independent council; it was disbanded in 2011
• Flowing from FRCC’s work, a number of new management measures were introduced to sustain the lobster resource including: voluntary V-notching; closures in known lobster spawning areas; minimum carapace size increase; trap reductions; and season reductions
• Today, the Canadian lobster fishery is divided into 41 lobster fishing areas (LFAs) in Atlantic Canada and Quebec. Lobster stocks in Canada are doing well, with many at or near historic highs and are in the healthy zone of the precautionary approach framework
• The primary purpose of closed seasons in the inshore lobster fishery is to promote lobster productivity. This is done in two ways:
  • allowing important molting and reproductive activities to occur in the absence of commercial fishing; and,
  • keeping fishing mortality moderate
• Changes to the seasonal management of the fishery would affect the Department’s ability to properly track changes in the stock and to assess its health. The data we use to assess the health of lobster stocks over time depends on a stable approach to seasons in order to develop abundance estimates and to determine data trends
• Other key management measures include:
  • a limited number of licences issued, with limits on the number of traps, and clear boarder of the Lobster Fishing Area (LFA);
  • time limits for fishing in the form of fishing seasons; ;
  • protection of egg-bearing females. Females bearing eggs must be released back into the environment alive to ensure the reproductive cycle continues (harvesters may voluntarily cut a small v-shaped notch in the female’s tail prior to release to ensure it will be released in the future, even when not bearing eggs);
  • minimum lobster size limits. This is a measure to increase the likelihood that lobsters reach full adult maturity and reproduce;
  • trap designs that allow undersized lobsters to escape and that include biodegradable escape panels to ensure that if traps are lost at sea they will not continue catching lobsters and other species; and
  • ongoing monitoring and enforcement of fishing regulations and licence conditions
• Increases in fishing activity or higher mortality rates in lobsters due to a change to fishing seasons or fishing out of season can be a significant conservation concern depending on the timing, the scale of the fishery, and the characteristics of the lobster fishing area. In most cases, fishing during the summer months and early fall can interfere with other biological processes, such as mating and egg laying. Fishing during these times could negatively affect stock productivity
• The proper timing of lobster harvesting seasons drives the ability to provide important economic benefits in coastal communities throughout Eastern Canada. In order to provide domestic and international markets with a steady supply of product, the timing of season openings helps ensure that the benefits of the inshore lobster fishery are distributed broadly to Indigenous and coastal communities across Atlantic Canada. The seasons also help avoid fishing lobsters when they are soft and of lesser quality and value, creating stability in the high quality of product and maintaining the premium reputation that is associated with Canadian lobster
• Setting fixed fishing seasons is essential in the establishment of orderly fisheries management. It supports predictability for the lobster industry itself, other fleets and industries, and for monitoring, enforcement, and safety operations. In support of this goal, all commercial fishing activity occurs at the same time in each lobster fishing area which creates a level playing field for those fishing within the same lobster fishing area by providing access for the same time-period for all commercial lobster harvesters within that area

Landings and value – overall fishery

• The commercial fishery is an important economic driver in the Maritimes Region
• The 2019 preliminary landed value of the Maritimes Region commercial fishery was approximately $1.56 billion. This represents 43 per cent of Canada’s total landed value
• There are 12,300 registered harvesters and 3,110 active vessels in the Maritimes Region commercial fishery. Vessels with a length of less than 45 feet landed 70 per cent of the total value of the fishery in that region
• There are 400 ports with landings in the Maritimes Region. 155 ports have landings worth at least $1 million, and 38 ports have landings worth at least $10 million, indicating a wide distribution of benefit
• Inshore lobster comprises most of the Region’s total landed value. Other molluscs and crustaceans have the second highest value, followed by pelagics and other, and finally groundfish

Background

Maritimes Region Landed Value by Major Species, 1998-2019 (preliminary)

Licences, landings, and value for inshore lobster

• As of December 31, 2019, there were 2,952 lobster licences issued in the Maritimes Region-based area of Nova Scotia and New Brunswick. 979 of those licences were in Lobster Fishing Area 34
• Although data is preliminary, the 2019-20 Maritimes Region inshore lobster landings are expected to be 46,500 tonnes. This would be the seventh highest value historically
• The 2019-20 season landed values are not yet available, but are estimated to exceed $770 million, or fifth highest historically.
• In 2019, the commercial fishery landed value for DFO Atlantic regions totaled $3.23 billion. Lobster accounted for 49 per cent of this total landed value
• The exchange rate with the USD has been a big driver of the strong wharf price. The inflation-adjusted and currency-adjusted lobster prices have averaged $5.57/lb in the Maritimes Region over the past 30 years

Background

• Generally speaking, the price for lobster is fairly uniform, and tends to be higher due to better market conditions and/or a weaker Canadian dollar. In recent years, the exchange rate with the USD has been a big driver of the strong wharf price
• In 2019, there were 568 active lobster licenses in the Gulf Region-based area of Nova Scotia
• Each of the past six seasons (from 2013-14 to 2018-19) of landings reached over 50,000 tonnes. The 2019-20 season is not expected to reach 50,000 tonnes
• The 2007 lobster price of $6.94/lb was the highest annual average in the past 30 years. This is in inflation-adjusted, U.S. dollar terms
• Lobster landings (measured as landed weight) in the inshore lobster fishery in the Maritimes Region rose almost uniformly year after year from the 1995-96 season through to the 2015-16 season, increasing from just under 15,000 tonnes in 1995-96 to a record 60,823 tonnes in 2015-16
• Inshore lobster nominal landed value averaged about $350 million over a 15 year period through to the 2012-13 season. In just three years following the 2012-13 season, inshore lobster landed value more than doubled, rising dramatically from $383 million to $886 million
• Total inshore lobster values have increased from approximately $660 million in the 2014-15 season to $885 million in the 2018-19 season (based on preliminary data)
• COVID-19 was a driver for lower markets and prices near the end of the 2019-20 season. Markets and prices strengthened during 2020 and into 2021

Communal commercial landings and value

• The 2019 preliminary value of communal commercial fisheries (the most recent year with complete data) in the Maritimes Region was $81 million. Lobster was the most valuable species, at $41 million
• Employment figures for Atlantic Canada First Nations members are estimated to be approximately 1,300 harvester positions, 110 land-based positions, and 250 other positions related to the fishing industry
• Indigenous communities may designate the captain, crew, and vessel that may be used to fish under the authority of the licence
• The vast majority of the licences held by Indigenous communities are fished by the communities themselves, using the approximately 320 community-owned vessels operated by community members
• Requests to permanently transfer quota or access can be made by First Nations in cases where they would like to relinquish access they currently hold to acquire access better suited to their fishing enterprise

Background

• Communal commercial licences are issued under the Aboriginal Communal Fishing Licences Regulations
• Requests by First Nations to permanently transfer quota or access is carried out through the Relinquishment and Replacement of Communal Commercial Access process, which was jointly developed by Indigenous partners and DFO. This process has been used a handful of times to-date. Temporary transfers generally take place under the standard rules for the fishery
• DFO sets commercial licence conditions on an industry-wide scale. For Indigenous communities involved in the commercial fishery, regulations flow from the Aboriginal Communal Fishing Licences Regulations, yet include similar regulatory requirements (e.g. conservation measures, gear marking and reporting requirements) as all other commercial fishing licences
• Communal commercial licences include: crab, lobster, scallop, sea urchins, groundfish, shrimp, swordfish, tuna, elver, clams, alewife/gaspereau, herring, and others

Purchase of Clearwater by a coalition of Atlantic First Nations and Premium Brands

• The Government of Canada supports collaboration amongst First Nations and non-Indigenous harvesters and efforts to create partnerships. Working together towards mutually beneficial outcomes is the practice of reconciliation
• Clearwater has requested that the existing midshore and offshore licences be issued to of one of the new owners, the First Nation Coalition Quota Limited Partnership (FNC Quota). This request is being reviewed in light of treaty obligations, licensing policy, Integrated Fisheries Management Plans, and the relevant administrative guidelines that pertain to the affected fisheries
• The Department has had significant discussions and exchanges with the new ownership of Clearwater in order to ensure that the new ownership continues to meet the requirements to issue these Canadian fishing licences
• DFO’s review of this matter continues

If asked about the Marshall Decision, moderate livelihood and/or treaty rights:

• The Government of Canada remains committed to implementing the treaty right to fish in pursuit of a moderate livelihood
• Canada stands ready to work with First Nations to explore and discuss how to implement this right, while supporting a safe and orderly fishery

Background

• On November 9, 2020, Clearwater announced the sale of the company, to seven Atlantic Mi’kmaq First Nations and Premium Brands Holdings Corporation, with each owning 50 per cent of Clearwater. With the completion of that sale on January 25, 2021, a formal request to Fisheries and Oceans Canada (DFO) from Clearwater, on January 26, 2021, to reissue a Clearwater’s midshore and offshore Canadian fishing licences in the name of the new owners, the Mi’kmaq coalition
• The Clearwater sale is the result of a willing buyer/willing seller transaction, and represents, as expressed by Chief Terry Paul, “the single largest investment in the seafood industry by any Indigenous group in Canada.”
• he Mi’kmaq First Nations have borrowed from the First Nations Finance Authority (FNFA) in order to finance the purchase of the company. The inclusion of the Clearwater licences and allocations is fundamental to sale
• Nunavut interests have requested that Clearwater licences and allocations for fisheries in the north be provided to them. Some licences held by Clearwater have associated quota that is fishable in areas directly outside the Nunavut Settlement Area or partly within Zone I of the Nunavut Agreement. Any licence re-issuance request that entails a transfer of commercial fisheries access in Zone I (and Zone II) triggers section 15.3.7 of the Agreement requiring that the Minister give special consideration to the principles of adjacency and the economic dependence of Nunavut communities and residents on marine resources
• With regard to the East Coast fishing industry, the November 9 announcement is seen as a “transformational moment”, since Clearwater is North America’s largest producer of shellfish. DFO continues to monitor stakeholder reactions

Other Indigenous issues

United Nations Declaration on the Rights of Indigenous Peoples

• The Government of Canada introduced Bill C-15, The United Nations Declaration on the Rights of Indigenous Peoples Act, on December 3, 2020. Introducing legislation to advance full implementation of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) is a key step in renewing the Government of Canada’s relationship with Indigenous peoples
• The sustainable use of the fishery resource; the protection of fish and fish habitat; the conservation and management of our oceans; and through the Canadian Coast Guard, the safety of those on the water and the protection of the marine environment, are shared priorities held in common with Indigenous peoples in Canada and the Department
• DFO is committed to recognizing and implementing Aboriginal and treaty rights, including those related to fisheries, oceans, aquatic habitat, and marine waterways, in a manner that is consistent with section 35 of the Constitution Act, 1982, the Declaration, and the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples
• DFO is also committed to advancing relationships with Indigenous communities and organizations. To this end, my department has developed a Reconciliation Strategy which is a long-term evergreen approach to advancing meaningful reconciliation with Indigenous peoples in the areas of fisheries, oceans, aquatic habitat, and marine waterways
• As with reconciliation, all of us will need to work together to implement and breathe life into the Declaration in Canada

Background

• The Government of Canada upheld it’s commitment to introduce legislation co-developed with Indigenous peoples to implement the Declaration by the end of 2020
• Your December 2019 mandate letter includes several commitments (e.g., blue economy strategy, co-management of oceans, marine conservation targets, new aquaculture legislation, management of aquatic ecosystems and fish stocks) that reference the inclusion of Indigenous peoples and Indigenous Knowledge in the management of fisheries, oceans, and freshwater resources. Your January 2021 supplementary mandate letter reiterates the blue economy strategy commitment and includes a commitment to bring forward a Pacific Salmon Strategy (in close collaboration with First Nations)
• Fisheries and Oceans Canada (DFO)-Canadian Coast Guard’s Reconciliation Strategy, released on the DFO website on September 6, 2019, commits the Department to recognizing and implementing Indigenous and treaty rights in fisheries, oceans, aquatic habitat, and marine waterways in a manner consistent with, among other things, the Declaration

Elvers

• The commercial elver fishery harvests juvenile American eels and is managed in a sustainable manner for the benefit of all Canadians
• The Supreme Court’s Marshall decision affirmed a treaty right to hunt, fish, and gather in pursuit of a ‘moderate livelihood’
• DFO is working with Mi’kmaw, Wolastoqey, and Peskotomukati communities through the Rights Reconciliation Agreement negotiations process to implement this right. These negotiations are considering access to multiple species, including elver
• For both conservation and safety reasons, it is extremely important that rights-based fishing access is addressed through consultation and negotiation

Background

• American eel is currently being considered for listing under the Species at Risk Act
• Fisheries and Oceans Canada (DFO) Maritimes authorizes a commercial elver (eel under 10 cm) fishery in portions of New Brunswick and Nova Scotia. The elver fishery is managed with a total allowable catch (TAC) for the fishery and at a site-specific level with river catch limits set for each fishing location
• Several Indigenous communities in the Region have expressed to DFO their intention to assert a treaty right to fish for elver during the 2021 season. In 2020, concerns for conservation and safety due to fishing outside the commercial fishery led DFO to close the fishery for much of the season
• DFO is considering changes that may support voluntary relinquishment of commercial access to facilitate moderate livelihood access, including DFO potentially acquiring access from the commercial fishery, to reissue through existing negotiations. DFO met with existing commercial licence holders on this matter and requested that those interested in voluntarily relinquishing access submit a proposal
• DFO has received a request to consult on Moderate Livelihood Fishing Plans for elver from the Kwilmu’kw Maw-klusuaqn Negotiation Office, on behalf of two Nova Scotia Indigenous communities
• On Tuesday, April 13, Minister Jordan communicated with media that moderate livelihood negotiations go beyond just lobster and include all species

CIRNAC process

• As a means of advancing Sipekne’katik’s self-government interests, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) has recently established a Recognition of Indigenous Rights and Self-Determination, or RIRSD table with this First Nation

• RIRSD tables can be a useful venue where the Crown and a First Nation can work in respect and partnership to advance a community's vision of self-determination
• For subject matter that falls within the mandates of other Ministers, representatives from those departments are invited to the table to lead the discussions as appropriate
• Should Sipekne’katik want to discuss fish-related topics, or any other issue that falls within the purview of my Department, my officials would be invited to lead those discussions

Background

• The Government of Canada is working with Indigenous groups at over 80 discussion tables across the country to explore new ways of working together to advance the recognition of Indigenous rights and self-determination
• The goal is to bring greater flexibility to negotiations based on the recognition of rights, respect, cooperation and partnership. At these tables, Canada and Indigenous groups can explore new ideas and ways to reach agreements that will recognize the rights of Indigenous groups and advance their vision of self-determination for the benefit of their communities and all Canadians
• These discussions can also seek to address longstanding issues that are not covered by existing treaty or self-government negotiations. This kind of dialogue is open to all Indigenous groups with Section 35 rights to address longstanding issues that may fall outside the scope of other federal policies
• CIRNAC set up a RIRSD table with Sipekne’katik at their request in March 2021 to explore a variety of issues of interest
• Should the RIRSD discussions turn to matters that fall within Fisheries and Oceans Canada jurisdiction, including their right to pursue a moderate livelihood, the Department would be invited to participate in the process to find common ground on which to move forward in partnership toward a shared and balanced solution