Marshall Decision

Maritime Fishermen's Union Presentation to the Parliamentary Standing Committee on Fisheries & Oceans

Moncton, New Brunswick
November 25, 1999

Jump to Section:
 1. Introduction
 2. MFU & Native Bands
 3. Context Prior to Marshall
4. Lobster Fishery 
 5. Marshall Decision
 6. Accommodation of Marshall
 7. Outline of a Plan
 8. Conclusion

  1.  Introduction First, let me express my thanks to the Fisheries Committee for the opportunity to go on the record regarding the historic Marshall decision and its implications for our members, their families and their communities. I also wish to commend the Committee for recognizing the importance of coming to Atlantic Canada to meet with fishermen, their organizations and Native communities to discuss the Supreme Court's decision.
    The Maritime Fishermen's Union represents approximately 2,000 Bonafide type fishing operations in the Gulf of St. Lawrence and Scotia Fundy regions. Our fishermen have vessels less than 45 feet in length and most of them hold class A lobster licenses. Our membership in the lobster zones of Eastern New Brunswick (LFA 23 and 25) is particularly strong because the Maritime Fishermen's Union has been duly recognized under the New Brunswick Inshore Fisheries Representation Act as the representative of 1350 bonafide fishermen in Eastern N.B. and fishermen pay mandatory dues.
    Despite our high identification with the Acadians of New Brunswick, the Maritime Fishermen's Union also has three active Locals in Nova Scotia and individual members in Prince Edward Island. We have longstanding Locals in the Sydney Bight area of Cape Breton (LFA 27), the Bay of Fundy waters of Southwest Nova Scotia (part of LFA 34 and 35), and along the North shore of the Province(Pictou/Antigonish). There has been no comparable fishermen's organization act in Nova Scotia by which we can seek certification and mandatory dues. In total there are six thousand fishermen on the boats we represent. While lobster is the principal species for our members, we rely on several other species to make a fishing year.
    An organization like the MFU never has enough resources to capture in a professional document all of the experience and knowledge of our members with respect to the fishery but we need to stress right at the start a few important features of our experience in lobster in particular :
    • First, there exists a broad basic consensus among Canadian lobster fishermen that should not be overshadowed by inevitable differences and conflict. The consensus is not always explicit but it derives, we believe, from the professionalization of the fishery over the past 20 years and a general egalitarianism in the lobster fishing areas.
    • While there are some exceptional areas and circumstances, fishermen tend to have similar opportunities and results within lobster fishing areas of the Maritime Provinces. For the most part, the regulatory regime in the lobster fishery is widely supported by fishermen; this is both a result and a cause of the egalitarianism and is what we mean by consensus.
  2.  Maritime Fishermen's Union and Native Bands We want to make special note that the MFU has Locals of the Union in every fishing area of the Maritimes where you find significant populations of coastal M'ikmaq Bands :
    • The Bay of Chaleurs : you find two Bands on the Quebec Gaspe Coast and two on New Brunswick. The total populations of these bands is approximately 2,269 (Eel River - 534, Papineau - 205, Gaspe - 467, Gesgapegiag - 1063).
    • The Miramichi Bay : the immediately adjacent Band is Burnt Church whose registered Indian population is close to 1304.
    • Richibuctou estuary /Northumberland Strait off Richibouctou : is based New Brunswick's largest reserve, Big Cove, with a registered Indian population of approximately 2348 as well as Indian Island 145 and Buctouche Reserve 88.
    • In Nova Scotia, still in Northumberland Strait , Pictou/Antigonish : our Local 4 has operated since 1978 and there are two Bands, Pictou Landing and Afton, with a registered Indian population respectively of 493 and 455.
    • The Sydney Bight in Cape Breton : is home to our Local 6. None of the Bands, save Membertou (pop. 922), are actually adjacent to the Bight but along the inland waters of the Bras D'Or lakes you find Eskasoni, the largest Band with an estimated 3300 registered Indians, Whycocomagh, Chapel Island and Wagmatcook with respective registered Indian population of 698, 513, & 598. These bands are not coastal in the sense of our oceans fisheries but have access to the Bight through Big Bras D'Or Channel.
    • Saint Mary's Bay / Bay of Fundy is the fishery area for our Local 9 members in Meteghan / Digby Neck : Adjacent to the area are found the Acadia and Bear River Bands with respective registered Indian populations of approximately 890 & 255. We should note that the second and third largest Bands in Nova Scotia are Shubenacadie (Indian Brook) and Truro, both of these are inland.
    • Malpeque Bay : is one exception where we have no presently operating Local. The Lennox Island reserve is home to approximately 677 registered Indians . 
  3.  Context Prior to Marshall
    It is natural then that our members would have a long history of association with M'ikmaq peoples. Equally, it was not surprising that the MFU would have been front and center of the controversies since the Marshall decision of September 17.
    Despite our history of relations with the M'ikmaq, we found it more than a a little curious that the public relations firm that was apparently acting on behalf of the Atlantic Chiefs, William Alexander & Associates Ltd. never has made an effort to meet with the MFU Maritime Executive, although it did include MFU Locals in Nova Scotia in their meetings with a whole host of fisheries organizations in Nova Scotia.
    Although there are not many M'ikmaq commercial fishermen, there have nonetheless been individuals who have been members of the MFU. However, it was the Sparrow decision in 1990 that brought us into more formal contact with the Bands. It is safe to say that we had given very little attention to Sparrow until the BC Fishermen's Survival Coalition began making contacts in the Maritimes, especially with a populist group in Yarmouth and Antigonish calling themselves the Inshore Fishermen's Bonafide Fund.
    You may recall that the fishing population of Southwest Nova Scotia had been going through a series of upheavals, especially since 1989 when the system of Individual Transferable Quotas was introduced to the specialist mobile groundfish sector. Without getting into the period and its sociology, we can say that in Shelburne and Yarmouth counties there was great disaffection with the Fisheries Management Regimes and the West Coast Survival Coalition fed anxieties, that inshore fishermen had, that they were being eliminated from the fishery. In actual fact there is very little native population in that region and reactions to the fallout from Sparrow seemed to be way out of proportion to any factual threat to inshore fishermen, save for one essential point : the unwillingness or inability of the DFO in the region to bring definition to the Sparrow decision, to accommodate the right to fish for food, social and ceremonial purposes within a fishing plan that was measurable and enforceable. To our knowledge, there was no effective steps taken in the area around this food fishing right to abate the fears of the unknown and undefined that developed.
    The MFU throughout this period of the early 1990s made every effort to keep the food fishery in perspective and to avoid inflaming fishermen's fears. Nevertheless, we were running into some real problems in the Burnt Church and Big Cove areas in particular, where fishing for food was developing into a significant out of season Native commercial fishery. In one instance, we had Ottawa people from the MaryAntonette Flumien Shop come to New Brunswick with little or no consultation with DFO in Moncton making a deal with Burnt Church Reserve which by DFO's own admission led to some 750,000 lbs of lobster being fished in one out of season period, all under the rubric of a food fishery.
    For seven straight years now we have had an exhausting yearly struggle with DFO officials to bring this food fishery under some reasonable and identifiable controls and limits. Our fishing families have witnessed Native individuals patrolling a public beach armed with rifles. There have been reports of armed warriors from Montreal in other areas. We had three very tense summers in a row off of Big Cove in the Richibuctou area where Native persons fished during the closed July season. There have been some isolated but very tense individual situations in the Bay of Chaleur. The fact is there has been a disguised out of season commercial lobster fishery by Natives in Eastern New Brunswick for the past seven years and it has had a direct and real impact on our commercial fishermen, who among other things have been displaced on the inside grounds.
    Especially in the early years, enforcement was sporadic and often non-existent; not only were significant numbers of lobster being caught, they sometimes included undersized and berried females. We believe the total impact on our lobster fishery if you take into account all of the different forms of out of season lobster fishing would amount to as much as 10% of our commercial landings in Eastern New Brunswick. This impact has never been acknowledged in a formal way, but you can appreciate that our members might be just a little out of sorts to have had to absorb this kind of impact while the Fisheries Managers actually proceeded to implement a five year deal with a handful of snow crab license holders that excluded sharing of snow crab allocations (a resource that is in our inshore waters), unless the license holders landed $500,000 worth of snow crab per license, per year. This same co-management deal also excluded aboriginals by using this same $500,000 threshold formula.
    But we would be remiss not to acknowledge efforts of DFO Managers in Moncton to bring some kind of rational order to the food fishery. They agreed with us that the best way to contain the food fishery was to bring the Native peoples into the commercial fishery. This was done to some extent by the negotiation of communal fishing licenses from Band to Band. Part of the approach was to buy up licenses from retiring commercial fishermen and to allocate them to the Bands in exchange for agreement on the reduction of the food fishery. In Burnt Church, for example, we had finally reached a point in 1999 where the food fishery had been limited to 125,000 lbs, fished by 585 traps, and was generally enforced. Ironically, this particular food fishery had wrapped up only days before the Marshall decision. No fisherman is happy with any lobster food fishery that is done outside the normal season and we'll come back to this. Still, we acknowledge that after seven years the food fishery was finally getting definition, limits, and enforcement.
    All fishermen, whether in Yarmouth or Neguac, have been enormously frustrated by the way Sparrow was handled. Sparrow gave the right to fish for food as an inherent right that had priority over commercial fishermen but was second to conservation. But, DFO and its lawyers could never bring themselves to see closed seasons on lobster as a conservation measure. This has been and continues to be a source of great consternation to our members.
    We have found that there is no abstract or even legal solution to the issues. Our fishermen cannot, and rightly so, tolerate a situation where all of a sudden a food fishery right becomes a kind of black hole where no regulation is imposed on Native lobster fishing and where in some instances the Native rights are used as a screen for elaborate white dominated poaching rings. We have sought limits and definitions and enforcement of the food fishery combined with improved entry opportunities for Native peoples into the Commercial fishery. This appears to have worked well for the Pictou Landing area where there was already a tradition of M'ikmaq fishermen fishing in the Commercial lobster fishery. We were also very optimistic that we were working out practical solutions with the Big Cove, Indian Island reserves on the Richibutou, and Burnt Church on the Miramichi.
    In 1994, some Native people from Big Cove began fishing for lobsters in June (the commercial season begins in August). Our fishermen were extremely angered, especially since the reserve had benefitted from the purchase with Government funds of six commercial licenses to be fished under commercial rules. DFO moved to stop the Native fishing even for food and ceremonial purposes by closing the fishery in July for conservation reasons. Big Cove fishermen continued fishing, arguing that there was no conservation reason for closing, including by reason of it being molting season. They maintained that molting in LFA 25 also takes place in August when the commercial fishery is prosecuted. We believe this question of conservation was one of the reasons Minister Tobin referred lobster to the FRCC.
    In any case, even though progress was made, make no mistake, we believe very strongly that the food fishery should not be fished in July or any other time out of season. Most of our fishermen were open to a limited idea of a food fishery but when it became integrated with assertion of the right to sell commercially and when it was prosecuted by some natives for private gain and by white and native poachers for profit, and when the Government found no mechanisms of enforcement, our fishermen lost a lot of their initial openness. 
  4.  Lobster Fishery
    Understanding the lobster fishery is central to understanding the events following the Marshall decision and is essential to any long term fishing agreement. We are not confident that senior DFO officials in Ottawa even understand the lobster fishery. Lobster management has evolved over a long period of time mainly by trial and error and interaction between DFO as the regulator and enforcer and the commercial fishermen. Since the 1970s poaching has been dramatically reduced. Bringing it under control caused much stress and hardship in communities and even divided families. But, what we have done over 25 years is build up a lobster management regime that is widely supported by the fishermen license holders.
    There are a whole body of restrictions that amount to a lobster management plan; they include zoning - 41 different lobster zones , restricted seasons, trap limits, a freeze on the number of licenses, trap specifications including escape mechanisms, minimum legal size, prohibition on retention of berried females and so on. In effect, DFO has built up a kind of social contract with lobster fishermen that has clearly been sustainable; landings have remained higher than the average for the 20th century for at least the past 15 years.
    The resource itself is widely distributed in the inshore waters of the Maritimes and is very localized tending to stay within a 25 km range of its habitat. Just as a contrast, the herring, mackerel, cod, tuna are only in the Southern Gulf of St. Lawrence part of the year. Lobster stays at home all year.
    The wide dispersion of lobster is reflected in the large number of inshore fishing communities that characterize the Maritime Provinces. There are 8,000 lobster operations and 25,000 fishermen who depend on it. No scientist is able to tell us precisely how much of the adult lobster is taken every year but all the estimates are over 70%. It is clearly a fully utilized species. Yet, we recently had a DFO official in Ottawa tell us that because lobster is not on quota it somehow becomes more difficult to restrain out of season lobster fishing by Natives. This is the kind of conservation obscurity that DFO has been in since Sparrow.
    When Mr. Tobin was Minister of Fisheries in 1984, he asked the FRCC to provide him with a definition of conservation. The best FRCC could do was state : All removals from a resource are important and must be properly monitored and controlled. Consequently, the Council believes that all fisheries should take place within the same conservation framework. (FRCC 1995)
    Still, DFO cannot bring itself to conclude that seasons are conservation measures even though lobstermen everywhere in Canada see them as integral to sustainability. In the real world, however, fishing out of season is a fundamental threat to conservation because every fishermen will demand equal treatment to fish at anytime in the year. We believe that the elimination of seasons would eventually break down the whole Canadian lobster management system and we would be left with the U.S. model that will probably preserve the species - but not conserve it at the level that the Canadian system has been able to under similar ecological conditions. 
  5.  Marshall Decision
    The decision of the Supreme Court of November 17 denying the application of the West Nova Fishermen's Coalition for a rehearing and stay was no surprise. What is a little surprising is the reaction of some of the media and apparently Native leaders suggesting that somehow the Supreme Court had altered its decision of September 17.
    Whatever the MFU thinks about the basis of the September decision (even the Judges were divided on that) we always read it as a recognition of a Treaty Right of M'ikmaq to fish and trade, but a right that was subject to limits and that could be regulated. We had a difficult time finding anything substantively new with respect to fish in the November clarification that was not already in the September decision. In other words, we always believed the Government of Canada had the powers to limit and indeed infringe upon a right, subject to the Badger test. Furthermore, the Judges made it explicit in September that the treaty right could be accommodated within a regulatory system and catch limits could reasonably be imposed.
    We have really only had one quarrel with the Supreme Court; we believe they should have provided for an implementation period even if the Crown had not explicitly requested one. We have been put through a great deal of grief since September 17 and in our judgement it was not necessary.
    In fact, the clarifications of November 17 only serve to underscore what our legal advisor was counseling from the outset : the Government has the powers to accommodate the Treaty Rights in an orderly fashion and we are holding them responsible for the resulting deterioration of the situation in the Miramichi Bay. The Ottawa senior officials looked like Medieval Scholastics trying to determine how many angels were on the head of a pin' while the situation in the Miramichi was building towards explosion. Whoever was calling the shots' in Ottawa was either woefully ignorant of the nature of the lobster fishery and the history of Sparrow or was cynically Machiavellian and was willing to use a Native/commercial fishermen confrontation as a small price to pay for some larger political objective.
    We are left with communities that are torn apart, where tension remains high, where commercial fishermen's attitudes have hardened, where Native people feel aggressed, and where no one looks good. We should equally recognize the high pressure position that many Band leaders have been in as a result of native peoples' desire to exercise their rights.
    The fact is that the Burnt Church Band along with many other Bands had no trouble interpreting the Supreme Court decision as an endorsement of a right to fish when, where and how they wished, subject to conservation. Traps were already going in the water on September 18. A week later there were as many as 6,000 traps in the Miramichi Bay (Mr. Alex Dedham of the Burnt Church Reserve uses the number 5,000). This is the equivalent of 20 full scale commercial operations and represents 10% of the number of operations during the legal season.
    But fishermen have always said that fishing in the closed season at the mouth of the Miramichi is 10 times more effective than during the commercial season not only because there are less fishermen but also because the lobster at this time of year is in a feeding frenzy' having gone through its molting period and preparing for the long winter hibernation. Longtime, experienced lobster fishermen in the area tell us that where a trap might successfully average a pound a day in the legal season, the same traps were catching as high as 10 and 20 lbs a day in late September.
    We must remember that two weeks prior to the Marshall decision, the Burnt Church Reserve had just finished three weeks of a food fishery with 585 traps catching a total of 125,000 lbs. Everything leads us to believe that the 5,000 to 6,000 traps fishing in the Bay since the Marshall decision had similar catch rates as in the food fishery. This means that another 600,000 to 800,000 lbs were caught in that area of the closed zone 23 since September 17.
    Therefore, since the end of the commercial season, there has been between 700,000 and 900,000 lbs of lobster taken out of the water (including the food fishery). The direct impact on next year's catch is not difficult to estimate since almost no growth is anticipated during the winter period. Using the same calculation, the impact on fishermen in that area would be between 3,500 and 4,500 lbs in lost catch. This represents an important share of the catch for any fishermen on the East coast of New Brunswick.
    The Miramichi area has 193 licensed commercial lobster fishermen using 325 traps. The fishermen are based in the communities of Baie-Ste-Anne, Pointe-Sapin, Neguac and Tabusintac. Their fishery opens May 1 and is finished by June 30. They have every reason to believe that the adult lobster in the Miramichi in October is exactly the same adults that will be there in May, save for a few who die from predation and other natural factors. So, if 700,000 lobsters are landed by the Natives, it is 700,000 not available in May. We should note that our figures are at odds with those of DFO but after a meeting in Baie-Ste-Anne where fishermen strongly opposed the DFO estimate they have begun a review. If our figures approximate the catch then they represent a potential loss of income per license holder of $20,000.
    One is asking a lot, indeed, to have those fishermen stand idly by as their next year's catch is being taken in front of their eyes. The Supreme Court is a distant institution; Donald Marshall was unknown to our fishermen, and seven years of Sparrow were in their system. The DFO apparatus was largely invisible and in paralysis during the build up period. In fact, the Regional DFO's hands had been tied. There was some monitoring by two small crafts at sea but no monitoring at the wharf. In the meantime, around September 22 our fishermen were reporting that Native vessels from Big Cove and Indian Island had moved their gear into the Miramichi. These 10 native vessels had been fishing in Northumberland Strait where the Lobster Area 25 was open to commercial fishing and where the Natives had been allocated commercial licenses in return for the restrictions on the food fishery.
    The season in Area 25 was winding down ; catches in the Big Cove / Richibuctou area had been reasonable and the Native fishermen authorized to fish can reasonably be assumed to have earned a moderate livelihood. Nevertheless, they moved into the Miramichi where catch rates were 10 times better ; they moved in with impunity. In fairness to Burnt Church people, we should note that their vessels who had commercial licenses were not operating in this closed season fishery. It was the effort coming from Big Cove / Indian Island that created the fatal mix.
    Fishermen saw no movement from the Minister, from the Senior Officials, or from the Local politicians ; they felt abandoned to their own defense or lose their next year's fishery. To this day, most fishermen who proceeded to disable three to four thousand traps in the Miramichi area will say they did the Government's job. From the point of view of the MFU we will not shoulder responsibility for the Sunday morning actions. Fishermen were driven to it and Government had all kinds of advance warning of this inevitable outcome.
    To this point, we have largely dealt on the past and we should come to future considerations. But first, one comment on the politics of the fishery. The fishing community of Southwest Nova Scotia has been very public and variously militant throughout the 1990s; it is an area with the highest concentration of fishermen and a wonderfully blessed natural marine resource from offshore scallop to fast growing haddock to the largest and most productive lobster fishery. The area carries a lot of weight in the fishery of the Maritimes and particularly in Halifax. Their issues are often generalized to apply to the whole region but they are normally different for reasons of ecology and sociology, and proximity to the U.S. live market trade. Their public manifestations can usually be characterized as populist where many discontents are usually merged into the one most visible issue.
    The fishermen do not adhere to one organization, although a majority supported the MFU in the middle of the 1980s. Our present MFU local is based north of Yarmouth in St. Mary's Bay. They collaborate closely with the Bay of Fundy Fishermen's Association. Throughout the events following Marshall we remained in touch with our members there.
    Actually, their largest concern was the food fishery that was being prosecuted by off-reserve Native groups, and their situation actually improved after Marshall because the beneficiaries of Marshall were defined as status M'ikmaq / Maliseet and Passamaquody First Nation. Those still food fishing were quickly cleared out by DFO. The approach of our members in that area was to commence discussions with Native leaders and to indicate their rights would be accommodated. Our leadership in the area did not encourage the spontaneous protest in Yarmouth and felt they could resolve the small amount of out of season fishing in a fair manner.
    The five hundred vessels in Yarmouth harbour seemed a little out of proportion to the immediate threat but it is consistent with expression of a strong fisheries populism that has prevailed throughout the 1990s in the area. The populism is fueled by a sense that Government is out to eliminate fishermen, and a strong sense of alienation and disenfranchisement, even though many fishermen continue to enjoy levels of gross income much higher than the Maritime average.
    The populist approach is unpredictable because of its spontaneity and tendency to mix issues ; in contrast our MFU Local members and the Bay of Fundy Fishermen's Association have experience working in a structured organization and with good local leadership. We cannot get into the subtle ways the populist train has affected our MFU work on the Marshall decision but you may recall that a large gathering in Yarmouth issued ultimatums of trap cutting prior to any such action was contemplated in the Miramichi. The M'ikmaq themselves tended to focus on Nova Scotia where there was actually very little out of season fishing ; there was less attention on New Brunswick where Native leadership support was desperately needed.
    Also, in Nova Scotia buyer / processor interests quickly merge into the populist movement and the issues get defined in a different way. We had the curious specter of the newly appointed Federal Negotiator rushing down to Southwest Nova Scotia in the heat of the protest as if he had been hired as a fisheries trouble shooter rather than a Federal Representative to work out an agreement to accommodate the new Treaty Rights. We had the Halifax based DFO Communications Officer attempting to downplay the Native fishing by saying it represented less than 1% of the lobster fishery ; this response may have had some aspect of truth in Southwest Nova but none in the Miramichi. At times, we had the Minister himself telling us things that had no applicability in the Gulf of St. Lawrence.
    There were many honest concerns and fears in the Yarmouth area especially since there was no reassurances coming from Ottawa as to how Marshall was going to be accommodated, and so our interest is not to blame fishermen who over-reacted but only to highlight how populist reaction can take away from a real situation that needed attention.
    In any case, we have carefully considered the Alliance group that has formed in part of Nova Scotia and have decided along with our Nova Scotia locals to take a different approach to working towards acceptable solutions to the accommodation of Marshall.
  6.  Accommodation of Marshall
    To date we have had only one preliminary meeting with the Chief Federal Representative, James McKenzie, and Assistant Gilles Theriault. We are satisfied with the initial process that they have outlined and have confidence in their competencies. However, it would be naive of anyone to believe there will be easy outcomes given the complexities and inherent problems in the fishery itself let alone the high expectations among Native peoples with respect to their newly won Treaty Rights.
    Nevertheless, it is essential that the Government achieve an interim fisheries agreement for the year 2000 that allows for the orderly exercise of the Treaty Right within the context of a regulated commercial fishery.
    The Supreme Court has made it amply clear in its two decisions of September 17 and November 17 that the Treaty Rights are communal in nature even if exercised by individuals. This is clearly the approach DFO is taking and, to our knowledge, had been taking in accommodating the food fishery right. The Court is also clear that they have not written a blank cheque, that it is a right to fish for a moderate livelihood, that the acquittal cannot be generalized to a declaration that licensing restrictions or closed seasons can never be imposed as part of the government's regulation of the M'ikmaq limited commercial right to fish. They have also spelled out what is meant in Badger that the regulatory authority extends to other compelling and substantial public objectives like recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups.
    So, the interpretive framework is there to allow for the development of interim and longer term fisheries agreements that accommodate the Treaty Rights. We know the Crown has a fiduciary responsibility to First Nation peoples but we also must stress that the Minister of Fisheries and Oceans has clear obligations towards our inshore fishermen. Fishermen have every right to view their own relations with DFO through the licensing regime and the management plans as a collective agreement, an unstated covenant.

     The Outline of a Plan :
    • A Society Responsibility
      The first principle guiding any accommodation of the Native Treaty Right should be that Canadian society as a whole should bear the cost of the accommodation not the fishery alone. Inevitably, this can only be done through a substantial financial allocation that provides for : an extensive voluntary buy-back or buy-out program, compensation to Native Bands where exercise of rights have been delayed, economic development funds for the Bands, appropriate capacity building both in terms of fishing and co-management.
    • The Bonafide approach
      The inshore fishery is based on the owner/operator principle. That is to say, the person to which a license is issued must be the one using the license. Fishing belongs to fishermen. The present core license is derivative of the successful bonafide licensing system in the Southern Gulf of St. Lawrence. This system froze the number of owner/operator fishermen back in 1982. To enter the fishery you had to replace a bonafide. The system was also based on a multi-species strategy where the individual fisherman holds licenses in several fisheries in order to make a fishing year. Only Bonafide Fishermen are eligible for license transfers within this system. To use the language of the Supreme Court Judges, the Bonafide system is designed to provide for a moderate livelihood for individual fishermen/women and their families. The point has fundamental implications for the development of a plan to accommodate native treaty rights in the commercial fishery.
      The objective of such a plan would be the integration of native people as bonafide fishermen enjoying the benefits of a moderate livelihood and subject to the same conditions as other bonafides or their equivalents in the interests of conservation and other proper objectives related to the management of the fishery.
      We are convinced that over time this plan will best reflect the modern reality of the original treaty rights of the M'kmaq peoples. It will require the Federal government to buy-back the licenses of fishermen voluntarily leaving the fishery and the reassignment of the licenses to the appropriate native communities. In the implementation of such an approach both the Government and the fishing industry can assist the aspiring native fishermen to master tasks of the professional fisherman and the Government can compensate native fishermen while they await allocation of a license from the Band.
      This kind of planned approach to implementing native treaty rights will ensure access by natives to a moderate livelihood from the fishery , respect for the existing participants, and orderly management of the fishery. 
    • Local Impact
      We believe one of the objectives of Native communities is to develop a significant complement of skilled and dedicated fishermen who can earn a living fishing. In reality such individuals will tend to come from Bands adjacent to the marine resources, although there will certainly be individuals from inland reserves who will want the opportunity to fish for a living.
      But, the strongest demand to go fishing for a living will come from the coastal bands. Inevitably, most new Native entrants will want to fish inshore and adjacent to their communities. This means that the exercise of Treaty Rights will have local impacts; so the impacts on the commercial fishery will inevitably be uneven.
      For example, if you exclude the M'ikmaq that live on the inland Bras D'Or lakes who are a special case, there are really only some 2,400 M'ikmaq families living in coastal areas of the Maritimes where there is significant commercial fishing.
      Approximately, fifty percent of these families are found in the two communities of Big Cove and Burnt Church alone. It is little wonder that our fishermen in New Brunswick are so anxious to see a settlement. It is the inshore fishermen that have had seven years of the Sparrow impact and it is inshore fishermen in specific locales that will experience the largest impact from Marshall. The reality is that the emerging Native fleet will be concentrated in the Richibuctou area and Miramichi Bay and then, to a lesser extent off Pictou, Lennox Island and the Bay of Chaleur, and to a lesser extent still in Southwest Nova Scotia. The sheer numbers of M'ikmaq in the Bras D'Or lakes ensure there will be significant impacts on Sydney Bight inshore fishermen, although in terms of percentages of the Native population their participation will be low.
      We believe that some of the local impact can be accommodated by an enlightened buy-back or buy-out program that keeps the number of fishing enterprises stable in the local fishing area. But, in the areas with large coastal native populations, we will see an impact beyond the individual license holder to the community, the crew members and in some instances the plant workers. In such areas we believe that the local impact must also be mitigated by providing for more opportunities in the inshore fishery. In Eastern New Brunswick we know at least three significant ways of expanding : re-adjustment of future cod quotas toward the inshore, allocation of the snow crab on inshore grounds to the inshore (who are presently excluded) and enhancement of the scallop resource that we have already commenced.
      Local impacts will also be mitigated by providing for multi-year entry plans. If Native peoples are being asked to stagger their entry in some areas over time, they will have to have interim compensation or provision of other opportunities.
    • No New Effort
      The newly won Treaty rights are a complicating factor in the East Coast fishery that is already an extremely complicated system of privilege and allocation. For example, the system of limited entry licensing has resulted in some gross inequalities. We have situations where fishermen have become millionaires with little or no personal investment; we have other situations where young fishermen are paying enormous entry costs and carrying unbearable debt burdens. We have other situations where profits from fishing are accruing back to companies and individuals who don't do the fishing. So, we cannot assert too many generalizations that apply across the board.
      However, it is clear for example that some fisheries like most lobster fishing areas are fully subscribed to, and are yielding on average only a moderate livelihood per license holder. In such fisheries we must proceed from the principle of no new effort as we accommodate the Native Treaty right. We would be duplicit however, if we claimed the snow crab fishery could not accommodate more fishermen since we have claimed for some years that there should be an inshore zone off Eastern New Brunswick and Quebec and the resource off Cape Breton is grossly under-allocated. Similarly, by all accounts there is considerable room for sharing offshore scallop and northern shrimp without impacting on anyone's moderate livelihood.
      We should add that whether or not there were M'ikmaq treaty rights to be accommodated, we have always held the position that the concept of a moderate livelihood should be used to guide overall DFO allocation policy ; it should be a normal outcome of licensing and allocation systems. 
    • Closed Seasons
      Native fishing in closed seasons has been the source of most of the conflict this fall and has also been a source of much tensions since the Sparrow decision recognized an aboriginal right to fish for food and ceremonial purposes. It is imperative that closed seasons in fisheries like lobster be viewed as integral to management plans that have been worked out between fishermen and the DFO authority over a long period of time, and which in essence constitute a social contract.
      Marshall is generally viewed as an advance on the Sparrow decision and we believe that the food fishery should really disappear or be stringently negotiated into the interim fishing agreements so that what marginal amounts of true food fishing are retained are done in season and on the principle that lobster alone ought not to carry the food fishing load.
    • Scope of Agreements
      Interim fishing agreements will have to explicitly show how rights are to be accommodated in every fishery. Naturally, this will require extensive consultation with all Bands but especially coastal Bands who will know where their specific fishing interests are : for example, rock crab may interest one Band more than another which might have a special interest in herring and so on. The objective should be to cover off fisheries in a way that there are no surprises for a few fishermen in a given fishery, however obscure. 
    • The Fisheries Authority
      The ultimate authority for the regulation and enforcement of the fishery is the Government of Canada through the Minister of Fisheries and Oceans. This may seem self-evident but given various ideas bandied with respect to self-government it is important to emphasize that any cooperative management agreements that are reached are still subject to the ultimate authority. It follows from the above that an individual that fishes under a communal fishing right should be subject to a set of conditions that are similar to those applicable to the commercial fishermen; for example, the lobster is not only limited by seasons and all the other measures of conservation but also by zones; mobility between zones is not permitted.


We have no illusions that the Treaty Right recognized by the Marshall decision is not extensive. The only real guide provided by the Supreme Court is that the right is limited to that of a moderate livelihood for individuals and their families. In theory that would extend to all M'ikmaq families. In practice, the vast majority of M'ikmaq could not be expected to chose fishing as a living; so in practice we can make some projections of the number that will enter a fishery that is subject to similar conditions as commercial fishermen.

However, since the right is recognized to be communal, Native leaders will presumably claim a piece of the fishery far in excess of the numbers of individuals who want to fish for a living. We are not certain as to why the Native leaders would actually want a share of the fishery beyond what their members would be fishing except as a source of revenue for the Band. Such revenues might be better secured by the establishment of a fund by the Federal Government.