Motion Pertaining to Mi’kmaw Fishers and Communities – Sen. Dalphond

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I rise to support the joint motion of Senator Francis and Senator Christmas calling on the federal government to finally uphold the Mi’kmaw constitutional treaty rights to a moderate livelihood fishery and condemning the violence that occurred last year in Nova Scotia to impede these rights.

This motion, introduced in November 2020, has added urgency because of Minister Jordan’s statement of March 3, indicating the government’s intent to unilaterally regulate moderate livelihood fisheries for lobster within the established seasons, alleging conservation grounds.

We have all seen Senator Francis’s and Senator Christmas’s statements in response, raising serious deficiencies around consultation and conservation claims. The government has also not accommodated our colleagues’ proposal for co-management of this resource through an Atlantic First Nations fisheries authority, advanced in the fall with the support of MP Jaime Battiste.

The federal government’s long-running failure in this business is undeniable. What’s more, successive governments seem oblivious to the teachings of the Supreme Court of Canada from more than 20 years ago now.

From the first Marshall decision, rendered by the Supreme Court on September 17, 1999:

Catch limits that could reasonably be expected to produce a moderate livelihood for individual Mi’kmaq families at present-day standards can be established by regulation and enforced without violating the treaty right. In that case, the regulations would accommodate the treaty right.

In the second Marshall decision, rendered on November 17, 1999, the court added:

. . . the process of accommodation of the treaty right may best be resolved by consultation and negotiation of a modern agreement for participation in specified resources by the Mi’kmaq rather than by litigation.

Failing a modern agreement, the court further stated that the treaty right may be regulated — and even in some cases infringed — for conservation or other compelling public objectives, but:

A “closed season” is clearly a potentially available management tool, but its application to treaty rights will have to be justified for conservation or other purposes. . . . The complexities and techniques of fish and wildlife management vary from species to species and restrictions will likely have to be justified on a species-by-species basis.

I further quote:

The Minister’s authority extends to other compelling and substantial public objectives which may include economic and regional fairness . . .

To summarize, the Supreme Court of Canada has invited parties to negotiate a modern agreement and, failing such a negotiated agreement, described the procedures for regulating treaty rights. The Supreme Court said that the regulations, when adopted, if they constitute an infringement on the right to catch for a moderate livelihood, will have to be a minimal infringement, which should result from adequate consultations and should provide for a fair compensation.

For example, treaty rights holders in the Gaspé Peninsula have accepted commercial access models, like the Maliseet of Viger, who signed an agreement with the federal government in 2019. However, the government cannot impose such a model. The affected nations have rights that supersede commercial licences. These nations are not obligated to exercise their rights under a new treaty if they prefer to exercise the rights they hold under historic treaties. This approach has to be respected and based on the rationale of the moderate livelihood framework. The government must honour that choice.

Unfortunately, the government did not act accordingly. The lack of resolve has led to ugly behaviours from commercial fishers when the Mi’kmaq decided to enforce their treaty rights — treaty rights that are constitutional and superior to the commercial rights — and a slow response from the RCMP followed.

Moreover, earlier this month, Minister Jordan, in her statement, failed to address problems identified by Senator Francis and Senator Christmas, and continues to act unilaterally and to impose a paternalistic approach. This decision — which she says is necessary for the protection or the conservation of the resource — is very regrettable and certainly not respectful of the treaty rights.

Once more, we have a government failing to bring political will to a real problem and to recognize important, constitutionally protected treaty rights.

The recent event in Nova Scotia and previous events elsewhere in Canada have shown that there is a real social problem in Canada. Many Canadians have an insufficient understanding of the history, geography and reciprocal nature of treaties with Indigenous nations, their constitutional status and their practical consequences. This lack of understanding is a failure of our education systems, reflective of a history of racist federal policies, as we know from Call to Action 62 of the Truth and Reconciliation Commission.

Treaties are foundational law. As former senator Sinclair wrote to the Prime Minister on October 16 last year, regarding the violence:

. . . this situation is a clear and powerful test as to whether Canada is indeed a country of laws, as there is zero legal ambiguity in the present circumstances, with respect to both criminal law and the constitution.

In general, we should not tolerate a misguided view of treaty rights as a valid source of grievance for non-Indigenous peoples such as commercial fishers. All Canadians have derived economic benefits from treaties, including the lands and resources that built this country. Education can also further the understanding of how treaty rights interact with commercial fisheries. I repeat, treaty rights are far superior to commercial fishers’ rights.

In November, many Canadians learned that a coalition of Mi’kmaq communities, including the Membertou First Nation, which Senator Christmas belongs to, had acquired 50% of the shares in Clearwater Seafoods. Clearwater is the largest holder of commercial shellfish licences and quotas in Canada. That doesn’t solve the problem, though. The Senate could play a role by explaining the differences, from a legal perspective, between commercial licences and moderate livelihood fishing, as well as connections to fishing for food, social and ceremonial purposes under section 35 of the Constitution Act, 1982, concerning the rights of First Nations.

Nationwide, public opinion polls offer hope that there might be a unifying path forward in full respect of treaty rights and conservation. According to Nanos, almost three in four Canadians say that the best path forward in the Mi’kmaq lobster fishing dispute is to make sure that Indigenous fishing rights are respected while also ensuring that Indigenous fishers follow federal conservation rules.

This leaves open, however, what those conservation rules should be and how they should be co-developed. Here, the alleged conservation concerns raised by the minister appear greatly overstated. The Mi’kmaq lobster fishery is small in scale. In one fishing zone at issue in Nova Scotia, as Senator Keating referenced earlier, we are talking about 550 Mi’kmaq traps compared to 391,000 commercial traps — one seventh of 1%.

Also important, our American neighbour’s example suggests that Atlantic lobster reproduction does not require seasonal regulation of the catch for conservation. In Maine, the lobster capital of the U.S., there are no seasons. The Canadian seasons are apparently more about lobster price, and also because seasonal hard-shelled lobsters may be more safely transported. If this is the case, why is this rationale being publicly conflated with conservation?

On March 3, Minister Jordan said, “Seasons ensure that stocks are harvested sustainably and they are necessary for an orderly, predictable, and well-managed fishery.”

However, if seasons are not in fact required for lobster conservation, it is difficult to accept this conclusion. Management of the overall catch could be sufficient, as stated by Professor Robert Steneck of the University of Maine’s School of Marine Sciences. This could be done through co-management with Indigenous nations. Instead, it seems that the government’s overriding rationale probably relates to the economic interest of commercial fishers and maybe an upcoming election.

For example, the minister referred to the established seasons as distributing “economic benefits across Atlantic Canada.”

If the government’s primary rationale is economic, the government should be up front about it. The government should clearly explain its objectives with evidence, such as those related to use, prices and returns for fishers, so that objectives and evidence may be evaluated and alternatives weighed. Exaggerated claims about conservation do not advance policy solutions or build trust, particularly with the history of rights violations.

I would like to point out that this type of argument is quite baffling, if not insulting, to Indigenous peoples, given the impact colonialism has had on the development of natural resources in North America.

In the late 19th century, bison were hunted by the new arrivals, and their numbers dropped from 50 million to a little over a thousand today. This destroyed the economic prosperity of Indigenous peoples of the plains. The commercial whale fishery has led to the near extinction of the North Atlantic right whale. Senators will recall the more recent history of Atlantic cod overfishing.

In considering any conservation plans for the Atlantic lobster or any other natural resource, I think that the federal government and non-Indigenous Canadians would do well to listen to what Indigenous partners have to say on conservation, including the Mi’kmaq principle known as netukulimk.

The recent response from the minister shows that a lot remains to be done and that the government’s response is not yet meeting the teachings of the Supreme Court. But I believe the Senate could assist in reconciliation.

First, the Senate can play a public education role about treaty rights and the categories of fisheries. Commercial fisheries are not ancestral fisheries.

Second, the Senate can play a role in depoliticizing the moderate livelihood fishery issue. We should, of course, take our lead from Senators Francis and Christmas on other policy options for the Senate beyond this motion. However, I do think senators’ long tenure and policy lens are assets that could be helpful.

In closing, senators, I encourage you to adopt unanimously this motion in the spirit of the Peace and Friendship Treaties and of reconciliation. Thank you. Wela’lin.

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