Standing Committee’s moderate livelihood fishery report criticized
The federal committee once again tasked with finding solutions to the moderate livelihood fishery debate is once again being accused of issuing a report that avoids the main issues of contention.
The standing committee on Fisheries and Oceans accepted the fourth revision of its report Implementation of Mi'kmaq Treaty Fishing Rights to Support a Moderate Livelihood at the end of February. The report was commissioned in the wake of protests and violence that followed Sipekne'katik First Nation's launch of a self-regulated moderate livelihood lobster fishery on St. Mary's Bay in September 2020.
Through 10 public meetings, the committee heard from dozens of First Nations leaders, commercial fishery representatives, current and former DFO staff and scientists.
The fourth revised version of the report comes with 40 recommendations. Many pertain to further acknowledgment of Mi'kmaq and Maliseet rights to a moderate livelihood fishery; direction to DFO to consult more with First Nations and to work towards co-management.
According to the Bloc Quebecois and Conservative parties, which issued responses to the report, those recommendations sidestep the most contentious issues.
“The report's deluge of words, complemented by a torrent of recommendations that were expressly designed to leave readers simultaneously content and confused, make it essentially cosmetic. Parts of it are riddled with truisms, others are inconsistent, and some have absolutely nothing to do with the topic of the study,” reads the Bloc Quebecois' response to the report.
“Did the committee examine the implementation of the Mi'kmaq right to fish for a moderate livelihood? No. Did it evaluate the current rights and reconciliation agreement process? No. Did it identify better ways to reduce tensions and prioritize conservation? No. Did it recommend a path forward at the end of the study? No.”
The report did not make a recommendation on whether moderate livelihood fisheries should be required to take place during established commercial seasons. Industry argued that these seasons are important to avoid catching lobsters during molting or reproduction. First Nations contended that existing seasons are in part timed to seasonal market demand for lobster, which they said is not an adequate justification to infringe upon their right.
The report didn't take sides, instead recommending DFO “recognize the historic science” supporting seasons and that it regulate them “based on the best available science.”
Though the report hasn't taken sides, federal fisheries minister Joyce Murray has.
“We know that this is a very important aspect of stable management and the continued conservation of the stock which is in everyone's interest in the long run,” said Murray, who replaced former South Shore-St. Margaret's MP Bernadette Jordan as minister. “We are building into these understandings with First Nations that their moderate livelihood fisheries will be within the established seasons.”
On the issue of what constitutes a moderate livelihood, the report recommended more consultation with First Nations. The Supreme Court of Canada coined the term ‘Moderate Livelihood' in its Marshall Decision as a modernization of the right to barter for ‘necessaries' acknowledged in the Peace and Friendship Treaties of the 1760s.
However, the court left it up to the federal government and First Nations to determine what constitutes a moderate livelihood.
Industry associations argued in their presentations to the standing committee that the $580 million spent buying up 1,200 commercial licences (347 of which are for lobster) to transfer to Mi'kmaq and Maliseet First Nations in the years following the Marshall Decision, along with training and boats, constituted providing access to the fishery.
Regional Chief Paul Prosper contended that the agreements between First Nations and DFO under which the licences were transferred include clauses stating that they were provided “without prejudice” to the moderate livelihood right.
Potlotek First Nation fishery co-ordinator Justin Martin told the committee that it was “beyond the scope of the committee” to provide any legal definition of a moderate livelihood fishery. That it is up to each First Nation committee to determine for themselves.
The committee's first nine recommendations all have to do with establishing what constitutes a moderate livelihood, including that DFO acknowledge the right, consult with First Nations on what they consider it to be and who is entitled to have access to it.
In their dissenting opinion, the Conservative party argued that the conditions of licences already transferred to First Nations should be changed so that they can't be leased to non-aboriginal fishermen.
“What you're asking begs the question why Indigenous people still do not have access to the fishery given that the federal government spent more than $600 million buying fishery access from nonIndigenous communities and delivering it to first nations,” Colin Sproule, spokesman for the Unified Fisheries Conservation Alliance, which represents commercial fishermen, told the committee.
“It's at the heart of this issue, and it's not being discussed … the issue is that the majority of that access is then leased back and rented to non-Indigenous fishing corporations, effectively dispossessing first nations people of their legitimate right to fish.”
Regardless of the report's recommendations, DFO has moved forward by negotiating interim understandings with First Nations that recognize moderate livelihood tags granted by them.
So far agreements have been reached with Potlotek, Glooscap, Annapolis and Acadia First Nations to accommodate their Netukulimk Livelihood Fisheries Management Plan.
In the interim agreement reached with Annapolis, Acadia and Glooscap First Nations, the communities issue licenses to their members for 70 traps each, with a maximum of 210 traps fished per boat, in Lobster Fishing Areas 33, 34 and 35. For its part, DFO has built capacity to prevent extra pressure on the resource by buying up or holding retired licenses.
“The report’s deluge of words, complemented by a torrent of recommendations that were expressly designed to leave readers simultaneously content and confused, make it essentially cosmetic. Parts of it are riddled with truisms, others are inconsistent, and some have absolutely nothing to do with the topic of the study.” Bloc Quebecois’ response to the report