Comitas Institute for Anthropological Study

GOVERNMENT RESPONSE TO THE STANDING COMMITTEE ON FISHERIES AND OCEANS

THE MARSHALL DECISION AND BEYOND: IMPLICATIONS FOR MANAGEMENT OF THE ATLANTIC FISHERIES

APRIL 2000

Accommodation of Increased Commercial Access

Licence Retirement

Recommendation 1

The Committee recommends that any transfer of access to fisheries resources to First Nations communities must be accomplished through a federal government-funded voluntary buyback of a portion of existing commercial licences as they become available.

Recommendation 2

The Committee recommends that the emphasis should be on the acquisition of “core” multi-species licence packages for the local area for transfer to aboriginal communities rather than the transfer of lobster licences or any other particular species.

Government Response

The Government recognizes that most fisheries are fully subscribed and that increased Aboriginal participation in the fishery can only occur without serious disruption to existing fishers through the retirement of existing capacity. Additional capacity could compromise achievement of conservation objectives. 

Under the Allocation Transfer Program (ATP), Fisheries and Oceans Canada (DFO) has provided Aboriginal groups with opportunities to increase participation in the commercial fishery. The ATP provides for the retirement of licences from the commercial fishery and their subsequent re-issuance to Aboriginal groups as communal commercial licences. The ATP is being augmented in order to address the Marshall decision and provide additional access to the commercial fishery for Aboriginal groups in the Maritimes and the Gaspé region of Québec. Voluntarily retiring catch effort from the commercial fleet reduces the disruption to the existing licence holders.

Consultations and negotiations are already underway to implement this program. The Chief Federal Representative, Mr. James MacKenzie, has been in discussions for some time with Aboriginal communities to ascertain aspirations of communities, discuss capacity to increase participation in the commercial fishery and so forth. The information gained through these discussions is being used as a guide for licence retirement activities currently underway under the ATP. 

There is recognition of the fact that economic viability in the long term is an important objective. Therefore, the retirement of multi-licensed core enterprises and the acquisition of vessels and gear are priorities of the retirement program. This ensures that there is a diversification of access to the commercial fishery that contributes to longer-term viability of fishing operations. However, where necessary, DFO may consider retiring single licences or portions of quotas.

There must be an emphasis on providing opportunities in a number of fisheries, rather than concentrating on a select few lucrative species (e.g. lobster). This will provide Aboriginal communities with a diversified basis for developing community-based fishery enterprises. Furthermore, no one fleet sector will be disproportionately affected in addressing the Marshall decision. The licences retired will  depend on the aspirations and capacity of the Aboriginal communities to enter into various fisheries, as well as the availability of licences and licence retirement costs. 

Tax Implications

Recommendation 3

The Committee recommends that, in order to encourage the sale of licences, the federal government should offer a limited lifetime capital gains exemption to fishermen.

Government Response

Existing provisions of income tax laws already allow for some relief related to lump-sum payments. Gains on the disposition of capital property, including fishing licenses, are already taxed at preferential rates and that tax relief has been made more favourable in the recent budget. 

Communal Licensing 

Recommendation 4

The Committee recommends that licences must be transferred to First Nations communities as communal licences.

Government Response

The Government will continue, at least in the short to medium-term, to issue communal licences under the Aboriginal Communal Fishing Licences Regulations to provide increased access to the commercial fishery to Aboriginal groups. In the absence of other regulatory mechanisms that can provide for the necessary control and monitoring of fishing activity, communal licences are the only regulatory mechanism available.

Community Arrangements

Recommendation 5

The Committee recommends that, where local agreements can be reached to make room for new aboriginal entrants by fishermen each voluntarily giving up a portion of their quota of lobster traps, in a manner that does not increase the overall fishing effort, the federal government should support those agreements.

Government Response

The Government would welcome any reasonable agreement where non-Aboriginal fishers wish to take a community-based approach to making room for Aboriginal access in the interests of an orderly fishery. Possible arrangements could involve a voluntary reduction in the amount of quota or number of tags associated with each licence within a fleet. Any reasonable approach would be considered. The important concern would be whether the arrangement would lead to an increased effort with the remaining gear. These community-based arrangements will be encouraged, where possible. 

Conservation and Enforcement

Recommendation 6

The Committee recommends that fisheries must be managed with the long-term objective of conservation of fisheries resources.

Recommendation 7

The Committee recommends that effective enforcement is crucial to conservation. DFO must rigorously enforce fisheries regulations with impartiality.

Recommendation 8

The Committee recommends that DFO must be provided with the resources to fulfil its obligations to conserve the resource. This means that DFO must have sufficient numbers of enforcement officers and that those officers must be provided with the equipment to do their job safely and effectively.

Recommendation 9

The Committee recommends that Aboriginal enforcement officers should be trained as full fledged officers with the capacity to supervise any and all fisheries or other enforcement activities. There should be one standard for all personnel to enforce the rules.

Recommendation 10

The Committee recommends that there should be zero tolerance for fisheries violations. Sanctions for illegal fishing or the purchase of illegally caught fish should include minimum penalties to provide guidance to the courts and to achieve more consistent treatment of offenders.

Recommendation 12

The Committee recommends that DFO must enforce one set of rules for everyone and that it must have the resources and personnel to do the job.

Government Response

Conservation of fisheries resources to the paramount priority for the management of fisheries resources and this objective will not change. It is the cornerstone of the vision of today’s commercial fishery: a fishery that is sustainable, viable and self-reliant.

Where fisheries are fully subscribed, increased Aboriginal access will be attained without adding to existing fishing effort. A voluntary licence retirement program would neither increase effort nor threaten conservation.

The Government agrees that fisheries conservation objectives cannot be achieved without effective enforcement of regulations. The Conservation and Protection (C&P) Directorate of Fisheries and Oceans Canada (DFO) is responsible for the delivery of fisheries enforcement programs. The backbone of the C&P program is the national cadre of approximately 600 highly trained and professional Fishery Officers.

Fishery Officers are trained to enforce the regulations in an impartial manner. As is the case with all enforcement organizations, officers are often required to use discretion in determining the appropriate enforcement response to deal with particular situations. Depending on the nature and seriousness of the offence, an officer may decide that a written warning is more appropriate than laying charges. However, in the case of a serious and deliberate violation, or one that poses a threat to conservation, options other than laying charges would not be considered. Discretion in making decisions on the type of enforcement action that should be taken is an important element of effective enforcement. A policy of “zero tolerance”, if taken literally, would force officers to lay charges in cases where other enforcement responses could be more effective. This is not to say that conservation should be in any way compromised by weak enforcement. The Government fully agrees with the Committee’s recommendation regarding the need for rigorous and impartial enforcement.

The Committee recommended the establishment of minimum penalties for fisheries violations to provide guidance to the courts and to achieve more consistent treatment of offenders. The Fisheries Act currently establishes maximum penalties that may be imposed by the courts. Minimum penalties are not provided for in the legislation. The penalty levied upon conviction is at the discretion of the court. Crown counsel may recommend that a certain penalty would be appropriate, and such recommendations are routinely made following consultations between Crown counsel and DFO. The judge is not obliged to accept these recommendations, however, and in some cases the penalties levied are less severe than those recommended. DFO makes every effort to emphasize to Crown counsel, and through them to the courts, the seriousness of fisheries violations and the need for significant penalties in order to deter potential violators. 

Like most federal government programs, the DFO enforcement program has undergone adjustments in recent years in order to meet budget reduction targets. Reductions were made in a strategic manner to minimize the impact on program effectiveness. A decision was taken, for example, not to erode the complement of uniformed Fishery Officers. Rather, it was decided that the number of crewed patrol vessels would be reduced. These vessels were very expensive to operate and were found to be less cost effective than other surveillance methods such as aerial surveillance and observer coverage. Some of the savings that were achieved were reinvested in the enforcement program as part of a “C&P Renewal” initiative. Funding was directed to a number of projects aimed at improving the professionalism and overall effectiveness of Fishery Officers. For example: 

• The purchase of 85 smaller patrol vessels that could be operated by the Fishery Officers themselves in a more cost-effective manner. These vessels are equipped with state of the art navigational equipment and their portability and manoeuverability make them particularly effective in inshore and nearshore areas. 

• Approximately $2.7 million has been invested in computers and computer equipment to allow Fishery Officers to have ready access to the fisheries data that they need to do their jobs. 

• Approximately $1 million has been spent on specialized enforcement equipment such as digital cameras, video cameras, night vision equipment and surveillance vehicles.

• New enforcement-related information systems have been developed to provide accurate and timely data related to fisheries violations, Fishery Officer activities and program outputs. These systems allow for more strategic planning of enforcement effort and easier measurement of results and cost effectiveness. 

• Competency standards have been developed to assist in the recruitment of new Fishery Officers. These standards ensure a good match between the skills of recruits and the functions that have been identified for the “renewed” C&P program, i.e. a greater focus on partnerships, compliance, promotion, negotiation skills, etc. 

• Over 100 new Fishery Officers have been recruited over the past three years to fill vacant positions and replace those who have left the Department. This recruitment program has ensured that the overall complement of officers has not been eroded. 

• Operating (O&M) budgets have been increased in Atlantic Canada to ensure that officers have necessary funds to carry out field activities. 

• A new supervisory level has been created within the enforcement program to ensure that appropriate direction is given to field officers on a day-to-day basis and that enforcement concerns are brought forward during the development of fisheries management plans. 

In addition to these improvements, DFO has identified additional funding for the DFO enforcement program. This funding will be used to ensure that the required level of enforcement resources are in place to deal with any potential problems that may arise in this year’s fishery in Atlantic Canada.

In summary, the Government agrees with the Committee’s recommendation with respect to the need for adequate enforcement resources and equipment. The actions taken by DFO as part of the “C&P Renewal” exercise demonstrate recognition of this need. The government will continue to move forward with these and other initiatives to maintain and improve the credibility and effectiveness of the fisheries enforcement program.

The Committee also recommends that Aboriginal enforcement officers should be trained as full- fledged officers with the same powers as Fishery Officers. DFO has gained extensive experience in the development of the Aboriginal Fishery Officer/Guardian Program (AFOGP), which began with the implementation of the Aboriginal Fisheries Strategy (AFS) in 1992. While the program has been generally successful in promoting closer cooperation between DFO and the Aboriginal communities, there have been problems encountered and lessons learned over the past eight years. DFO has recently completed a national review of the AFOGP, with the objective of assessing the current situation and making recommendations to renew the program and promote its continued development. As part of the review, consultations were held with Aboriginal leaders, Aboriginal Guardians and DFO staff from the various affected programs.

The report resulting from the review recommends that the AFOGP should be given renewed emphasis by DFO, with the establishment of a National Program Steering Committee comprised of representatives from Aboriginal groups, DFO and other federal government departments. This committee would develop clear objectives, policies and administrative guidelines for the AFOGP. 

With respect to training and authorities for Aboriginal Guardians/Fishery Officers, the report recommends that enforcement powers should be assigned based on the level of training completed. The option of assigning full enforcement authorities to Aboriginal Guardians/Fishery Officers will be available, provided that the required training has been completed and that the appropriate command, control and support structure is in place, whether within the Aboriginal organization or within DFO. The report also recommends that the same training and recruitment standards should be in place for all Fishery Officers and Aboriginal Fishery Officers/Guardians.

The AFOGP Review has only recently been completed, and the report is currently being considered by DFO managers. However, the recommendations are consistent with those of the Standing Committee and they will provide a basis for renewal and strengthening of the program in future years. 

Fisheries Management 

Recommendation 11

The Committee recommends that commercial fisheries for aboriginals and non-aboriginals must be conducted under one set of rules and regulations for all participants in a particular fishery.

Recommendation 13

The Committee recommends that a co-operative, co-management and community-based approach to management of fisheries should be promoted.

Recommendation 14

The Committee recommends that snowcrab fishery co-management agreements and salmon watershed committee structures should be examined as possible models for the integration of aboriginal fishermen into other fisheries.

Government Response

The Government’s preference is that, for the purpose of conservation and the orderly and effective management of fisheries, commercial fisheries should be conducted under the same rules for all participants in a particular fishery. Such an approach usually ensures fairness between all participants. However, under the co-management approach, the Government has increasingly allowed fleets to adopt management measures better suited to individual fleet needs as long as conservation is not a concern and the interests of other fleets are not compromised. Today’s fisheries will be managed in partnership with Aboriginal groups and other participants, all of who expect to make more decisions about their fishing operations. Incorporation of Aboriginal commercial fishing into the general commercial fishery has formed part of DFO’s negotiation strategy. 

The Government recognizes the importance of co-management and of working co- operatively with licence holders. Under the co-management approach, licence holders are expected to work with community representatives and to take their concerns into consideration. The existing snow crab co-management agreements and the Atlantic salmon watershed committees are examples of where inroads are being made in this direction.

The Government realizes that much work will have to be done to integrate new Aboriginal participants into commercial fisheries. Consultations are ongoing to ascertain Aboriginal groups’ willingness to conduct their commercial fishing activity in a fully integrated way under current management systems. In this respect, there have been some indications that there is potential for cooperative management structures involving both Aboriginal groups and the existing commercial sector. For example, there have been constructive meetings at local levels between Aboriginal groups and commercial fishermen’s associations to discuss real and meaningful ways to increase Aboriginal participation in the commercial fisheries. Good dialogue and cooperation is essential for any future co-management agreement.

Despite these constructive exchanges, there is recognition that tensions will exist in some areas that will impede progress. Conservation and orderly management of the fishery are the paramount concerns of the government, and any management structures will ensure that those objectives are met.

Food, Social and Ceremonial Fishery

Recommendation 15

The Committee recommends that the food fishery must be controlled to ensure that it is being conducted as genuine food fishery and not an illicit commercial fishery.

Recommendation 16

The Committee recommends that there must be an examination of the question of whether the food fishery should be conducted during the same seasons as regular commercial fisheries.

Recommendation 17

The Committee recommends that there should be an examination of lobster fishing seasons and their impact on conservation.

Recommendation 18

The Committee recommends that DFO should vigorously prosecute, without partiality, all of those who take part in illegal sales of fish caught for food, social and ceremonial purposes. Any buyer caught illegally purchasing lobster for a second time should lose his or her licence in addition to any other penalty.

Recommendation 19

The Committee recommends that all catches of lobster whether in the commercial or food fisheries should be properly monitored and documented in order that DFO has reliable harvest statistics.

Government Response

The Government agrees that it would be preferable to have the same lobster management measures for both the food, social and ceremonial (FSC) and commercial fisheries. In order to facilitate a more orderly fishery, the Government, in discussions with Aboriginal groups, is exploring the possibility of combining FSC and commercial fisheries as a matter of agreement. This will not be acceptable to some Aboriginal groups and there will be instances where FSC fisheries are conducted separately from commercial openings. There may also be cases where a stock can sustain a FSC fishery but not a commercial fishery. Where agreement to incorporate all fishing within the commercial season is not possible, DFO is carefully considering what management measures are required to ensure that rights are respected and that conservation, public safety and order in the fishery are not compromised. A main objective will be to ensure that proper monitoring and controls are in place to deter unauthorized commercial activity.

Particular difficulties arise in the lobster fishery, which is lucrative and has staggered openings. DFO is paying particular attention to the effect that separate food, social and ceremonial fisheries and commercial fisheries for Aboriginal communities would have on DFO’s ability to monitor and control fishing activity. Sufficient monitoring of the lobster fishery and effective management measures are key to ensuring that lobster caught for food, social and ceremonial purposes is not sold, where separate fisheries (food, social and ceremonial, and commercial) take place. The Government realizes that lobster fishing for food, social and ceremonial purposes must be properly monitored and that conservation cannot be compromised.

The lobster fishery is managed through a variety of different mechanisms, such as restrictions on gear type, limits on the number of traps that can be fished, season timing and length, the required release of egg-bearing females and minimum size restrictions. Trap limits and seasons restrict the amount of effort that can be exerted in the fishery, thereby affecting the overall level of harvest. Seasons are established in consultation with local fishers and generally reflect the time of the year when lobsters are available in a particular area.

Fishing seasons for lobster were first implemented in the 1870’s and have remained essentially the same, with only modest changes, since then. Seasonal closures relate to conservation in that they limit exploitation rates, and provide protection from harvest during periods of egg-laying, molting and hatching. In addition, seasons serve other purposes: they facilitate fishing during times of more favourable weather conditions, ensure a high quality of lobster meat, and meet marketing objectives associated with maximizing return on effort. In most lobster fisheries, the main portion of the catch occurs in the first few weeks of the season. Catches drop off significantly thereafter. 

With technology now available, fishers have the ability to fish harder and faster in the time remaining – and would do so – if lobster fishing seasons were shortened. This would thereby result in little or no reduction in their catches. The Fisheries Resource Conservation Council, in its 1995 report “A Conservation Framework for Atlantic Lobster”, analyzed the effect of changes to seasons. The Council estimated that “to be really effective, large reductions (perhaps in the order of 50%)” in lobster seasons would have to be contemplated in order to have significant effects on catches. Such a change would be very disruptive to the commercial fishing sector, and coastal communities generally.

Regulations

Recommendation 20

The Committee recommends that regulations for the food fishery should be reviewed for the purpose of tightening them up in order to simplify enforcement.

Government Response

The Government acknowledges that regulations applicable to the food fishery, and indeed, to any fishery, must be as effective as possible to ensure that activities that could result in pressure on the fishery are controlled.

DFO intends to issue licences under the Aboriginal Communal Fishing Licences Regulations to authorize fishing activity, reflecting negotiated arrangements. Where licences are issued to provide access for food, social and ceremonial purposes, licence conditions that are necessary for the conservation of the resource and to provide for an orderly, managed fishery will be attached to those licences. 

Where agreement is reached to incorporate all fishing within the commercial season (food, social and ceremonial and commercial), the application of the commercial fishing regulations and licence conditions ordinarily applied in the commercial fishery will simplify enforcement and monitoring of the fishery.

Where such an agreement is not possible, monitoring of harvests and controls on fishing activity will be put in place to provide for conservation and the orderly management of the fishery.

Localized Fishing Effort

Recommendation 21

The Committee recommends that, as licences are transferred to aboriginal groups, particularly in the lobster fishery, a way must be found to prevent excessive localized fishing effort in order to avoid adversely affecting the health of stocks, particularly in sensitive areas such as spawning and nursery grounds. No greater fishing effort should be allowed than is already the case, including at the local level.

Government Response

The Government recognizes that the retirement of licences must be carried out carefully to ensure that any increased localized fishing effort does not compromise conservation. As well, the Government is fully aware that any large-scale movement of effort could have adverse impacts on communities in those areas. In order to minimize these potential impacts, licences will be retired in priority from fishers that operate in areas where Aboriginal groups are expected to operate. As well, any long-term issues that would create conservation concerns will be addressed through Integrated Fishery Management Plans in consultations with all stakeholders.

Process

Recommendation 22

The Committee recommends that the federal government must be more proactive in facilitating the negotiations by providing stakeholders both aboriginal and non-aboriginals with funding and resources (including technical advice) to participate effectively in the process.

Recommendation 23

The Committee recommends that the federal government must put in place an interim fishing plan by spring 2000 to demonstrate its good faith. This plan could include: a fisheries training program; a reduction and sharing of traps in areas where agreements have been reached; leasing of licences; and purchase of licences.

Recommendation 24

The Committee recommends that the federal government must provide DFO with financial resources to accomplish this task in the next budget.

Recommendation 25

The Committee recommends that the mandate for the MacKenzie process must be amended to be more balanced and to let all stakeholders know that they have full access to the process.

Government Response

Since the Supreme Court decision on September 17, 1999, the Government’s approach to implementing the Marshall ruling has been, and continues to be based on consultation, co-operation and developing community-based solutions. Mr. James MacKenzie was appointed on 

October 15, 1999 as Chief Federal Representative (CFR) to negotiate the accommodation of Aboriginal interests in the fishery while ensuring that orderly management continues. Mr. Gilles 

Thériault, Assistant Federal Representative (AFR) was appointed on November 9, 1999 and is responsible for making sure that the views of the commercial sector and other stakeholders are taken into account. 

Over the past months, both the CFR and AFR have held many meetings with Aboriginal groups, commercial fishing representatives and other interests. The goal is to ensure that every group with an interest and a stake in the negotiations has the opportunity to be heard. Arrangements have been made to provide both Aboriginal and non-Aboriginal organizations with resources to facilitate their meaningful involvement in discussions.

Agreements are currently being negotiated, for specified time periods, that set out the extent to which Aboriginal groups will participate in the fishery, cooperative fisheries management arrangements that may be developed, and such other related matters as may be appropriate, including capacity building initiatives such as training and mentoring. 

The Government has allocated an additional $159.7 million to allow for the implementation of practical interim fishing arrangements for the next fishing season. 

However, much as some might wish otherwise, there is not a quick fix. The solution will be achieved through dialogue, negotiation and accommodation. Implementing the Marshall judgement represents adjustment on the part of all affected parties.

Outstanding Issues

Recommendation 26

The Committee recommends that the issue of whether non-status persons of Mi’kmaq, Maliseet and Passamaquody ancestry are entitled to exercise the treaty rights affirmed by Marshall must be resolved.

Government Response

The Government recognizes that the issue of whether non-status persons of Mi’kmaq, Maliseet and Passamaquody ancestry are entitled to treaty rights as described in the Marshall decision is unresolved. This is a complex issue. The Government knows, however, that the right is a collective or communal right and that it most clearly applies to certain Native Bands – as successor groups to the original treaty signatories.

While Native Councils are not beneficiaries, some of their members may be entitled to exercise the Treaty right by virtue of their connection or linkage to one of those bands. 

Mr. MacKenzie, the Chief Federal Representative, has been focusing his discussions with the representatives of First Nations. It is important to note that Mr. MacKenzie is making very clear the Government’s expectation that First Nations will take into account those members who live off-reserve.

DFO is now discussing fishing arrangements with the Native Councils to provide Native Councils with enhanced opportunities to fish for food and commercial purposes. 

Recommendation 27 

The issue of whether treaty rights affirmed by Marshall apply to bands in Quebec must be resolved.

Government Response

The Government recognizes that the question of the application of the treaty right in areas of Quebec has not been conclusively established through a complete and in-depth analysis of the historical evidence required to lead to a conclusion that particular Aboriginal communities are modern-day successor groups to the original Treaty signatories. However, it is taking action to establish fishing arrangements with Mi’kmaq and Maliseet communities in that province.

The Chief Federal Representative has been in discussions with four communities in Quebec, one Maliseet community (the Malecite de Viger) and three Mi’kmaq communities; the Micmacs of Gasgapegiag, the Gaspeg First Nation, and the Listuguuj First Nation. An agreement has been reached with the Malecite de Viger. These four communities are located in the Gaspé region of Quebec. The federal government is not aware of any other communities of Maliseet, Mi’kmaq or Passamaquody people in Quebec.

Recommendation 28

The Committee recommends that the concept of “moderate livelihood” must be clarified or better defined.

Government Response

The Court’s description of a “moderate livelihood” was not well defined in the original Marshall decision. The November 17, 1999 Supreme Court clarification provided some elaboration but did not provide a definitive meaning or quantification of “moderate livelihood.” 

In addressing increased Aboriginal participation in the commercial fishery, the Government’s approach is to negotiate practical arrangements that will provide the beneficiaries of the treaty right with economic opportunities and thus facilitate improved standards of living for Aboriginal communities.