Question Period Note: Indigenous Moderate Livelihood Fisheries – Atlantic Canada

• Our government is committed to its relationship with Indigenous peoples.
• The Supreme Court of Canada recognized a right to harvest in pursuit of a moderate livelihood and Fisheries and Oceans Canada has been working with First Nations to implement the right in communities across the East Coast and Quebec.
• We believe it is possible to have a fishery that is peaceful, productive, and prosperous, one that upholds the Marshall decisions and realizes First Nation rights, while benefitting everyone involved.

• If pressed on the Ministerial Statement:

• For the 2021 fishing seasons, we are putting in place a new additional approach for interested Indigenous communities to undertake to further advance moderate livelihood fisheries.
• The approach is flexible, adaptable, and will enable communities to implement moderate livelihood fishing plans for upcoming seasons, in collaboration with DFO.
• This approach follows the Marshall decision and is based on three key principles: respect for conservation, transparent and predictable management, and reconciliation.
• It also makes clear that moderate livelihood fishing must take place within the established commercial season.
• Seasons are in place for important conservation, management, and economic reasons.
• We will work with Indigenous communities to implement their moderate livelihood fishing plans that authorize fishing within the commercial season and under the authorization of a DFO-issued licence that ensures fishing is safe, orderly and sustainable.

• If pressed on Enforcement:

• The Department’s priority while conducting enforcement is to consider the safety of all participants.
• Any unauthorized fishing may be subject to enforcement action.
• The enforcement posture of fishery officers will be, as it has always been, measured and proportionate.
• This could include a variety of activities such as education, warnings, inspections, investigations, and prosecutions.
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• Food, Social and Ceremonial (FSC) Fisheries
• First Nations have an Aboriginal right to fish for FSC purposes and this right takes priority—after conservation—over other users of the resource.
• Through the Aboriginal Fishing Strategy (AFS), DFO and First Nations seek to negotiate mutually acceptable FSC fisheries agreements.
• These agreements contain provisions related to amounts that may be fished for FSC purposes, species, gear, area, and other factors for the
• co-operative management of the FSC fishery.
• During the pandemic, these fisheries are particularly important to address the challenge of food security for those communities who have few alternative food sources.
• We work with all harvesters to ensure that the Fisheries Act is followed, and Indigenous fishing rights are respected.

• Over the past 21 years, the Department has invested over $530 million for licences, vessels, gear and training in order to increase and diversify Marshall beneficiary First Nations’ participation in the commercial fisheries to advancethe pursuit of a moderate livelihood right. These investments have resulted in meaningful economic benefits which continue to increase year over year. For example, annual landed value among these First Nations has increased from $3 million in 1999 to over $140 million in 2018, an increase of 4600 per cent. Additionally, another $52 million of yearly revenue is now generated through fisheries-related businesses (e.g., processing, aquaculture) owned and operated by Atlantic First Nations.
• In Atlantic Canada, the Department is currently in negotiations on Rights Reconciliation Agreements (RRA) with 34 Mi’kmaq and Maliseet First Nations, and the Peskotomuhkati Nation, with the objective of addressing and recognizing the historic treaty rights (Supreme Court of Canada Marshall Decision of 1999), including the right to fish for the purpose of pursuing a moderate livelihood, and to ensure a stable and predictable fishery for the benefit of all Canadians.
• These agreements are time-limited (5 years) with an option for renewal; provide for signatory First Nations to develop approaches to fishing to meet their particular objectives and importance to their communities, such as an emphasis on jobs or income; and put in place fisheries governance structures and processes to enhance the collaboration between First Nations and Fisheries and Oceans Canada (DFO).
• Access to commercial fisheries for the pursuit of a moderate livelihood will be through voluntary licence relinquishment, i.e. transferring access/licence through the open market.
• The Department has been successful in signing two RRAs, one with the Maliseet of Viger First Nation (Quebec) and the other one with the communities of Elsipogtog and Esgenoôpetitj (Mi’kmaq of New Brunswick). We are also close to concluding an RRA with the Listuguj Mi’gmaq Government.
• A number of First Nation members across the Atlantic Region have grown frustrated with the slow progress on negotiations and have conducted their own fisheries in pursuit of a moderate livelihood and have developed moderate livelihood fish plans.
• The Department continues to have discussions with First Nations on the recognition of rights and encourages that this dialogue take place at the negotiation table and not on the water.
• Building Indigenous-industry relationships around the moderate livelihood fishery is a priority as negotiations advance on Rights Reconciliation Agreements or through the new plans approach. To that effect, you and Minister Bennet appointed Allister Surette as Federal Special Representative (FSR), to act as a neutral and senior third party whose mandate is to gather the different perspectives on the issues contributing to the conflict; seek to build understanding and find common ground that will reduce tensions between First Nations and industry; and identify opportunities to improve relationships and reach a lasting solution;he Department continues to have senior level departmental officials meeting with Atlantic lobster industry to answer questions on moderate livelihood issues and provide industry an opportunity to share its views.
• The House Standing Committee on Fisheries and Oceans is currently undertaking a study on the implementation of Mi’kmaq treaty fishing rights to support a moderate livelihood. A report is expected in the near term.
• In an effort to make progress on this issue, Fisheries and Oceans Canada (DFO) sought and obtained approval for additional flexibilities negotiating RRAs as well the ability to negotiate with these same First Nations, for small scale moderate livelihood fishing plans for the 2021 fishing season.
• On March 3, you announced a new path forward, putting in place a new approach for interested Indigenous communities to undertake moderate livelihood fisheries that would take place during the regular commercial seasons.
• The FN reaction was overwhelmingly negative, whereas comments from industry were generally positive.

• FSC
• The 1990 Sparrow Supreme Court of Canada decision was the first of several rulings finding that First Nations have an Aboriginal right (recognized and affirmed under section 35(1) of the Constitution Act, 1982) to fish for FSC purposes and that this right takes priority—after conservation—over other users of the resource.
• DFO introduced the (AFS) to provide a framework for managing Indigenous fisheries in a manner consistent with the Sparrow decision. Through the AFS, DFO and First Nations seek to negotiate mutually acceptable and time-limited fisheries agreements. These agreements contain provisions related to amounts that may be fished for FSC purposes, species, gear, area, and other factors for the co-operative management of the FSC fishery.
• Once a communal licence is issued to a community, individual Indigenous harvesters are designated by their communities to fish for FSC purposes, as specified under the Aboriginal Communal Fishing Licences Regulations.
• The Department’s position has been that FSC catches cannot be sold.
• Food security continues to be an issue in First Nation communities. Many Nations continue to stress that FSC allocations often do not meet their food security needs.
• Food security concerns have been heightened during the Covid-19 crisis, particularly for those communities who are isolated and have few alternatives for protein, and for Elders and at risk populations.
• FSC licensing is continuing as normal and flexibilities around fishing are being considered on a case by case basis and in light of this food security issue.

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